Readers will recall that there’s some extent of ambiguity within the ICJ’s latest holding in its Palestine advisory opinion as to how Israel’s systematic violations of IHL and different guidelines of worldwide regulation, together with the Palestinian folks’s proper to self-determination, rendered Israel’s continued presence within the occupied territories illegal. That’s, the tough query – which divided the judges – will not be whether or not Israel violated worldwide regulation in the way it has performed the occupation (that a lot is apparent), however how and why the occupation as such turned unlawful and needed to be terminated. (For extra background and dialogue, see right here (together with the feedback), our latest podcast episode right here, in addition to right here and right here).
In para. 251 of AO, the Court docket held that the legality of Israel’s continued presence is to be assessed not in opposition to IHL, which comprises no guidelines on the matter, however in opposition to the jus advert bellum and the correct to self-determination. Then, in an important paragraph of the opinion (para 261), the Court docket held as follows:
The Court docket considers that the violations by Israel of the prohibition of the acquisition of territory by pressure and of the Palestinian folks’s proper to self-determination have a direct impression on the legality of the continued presence of Israel, as an occupying Energy, within the Occupied Palestinian territory. The sustained abuse by Israel of its place as an occupying Energy, via annexation and an assertion of everlasting management over the Occupied Palestinian Territory and continued frustration of the correct of the Palestinian folks to self-determination, violates basic ideas of worldwide regulation and renders Israel’s presence within the Occupied Palestinian Territory illegal. (emphasis added)
So, it’s the occupying energy’s abuse of its place, which has two prongs – the illegal annexation and the frustration of Palestinian self-determination – that renders the continued occupation illegal. As I defined in my preliminary submit (once more please additionally see the feedback by colleagues to it), the Court docket’s reasoning may have been extra developed. It doubtless wasn’t so as to guarantee consensus on the bench. Specifically, the Court docket says nothing explicitly in regards to the jus advert bellum and Israel’s declare that its continued presence is justified by self-defence.
The Israeli/Palestinian state of affairs is so distinctive and sophisticated that it simply results in conceptual tangents and typically makes it obscure the operation of some key ideas. So on this submit I want to provide a hypothetical state of affairs that’s in some methods less complicated, which I hope can facilitate our understanding of the Court docket’s method in para. 261 of the Palestine AO. The state of affairs is as follows.
A and B are neighbouring states. They’ve a longstanding dispute about historic area X. A part of that area falls inside A’s internationally acknowledged borders (XA), a part of it inside B’s (XB). The management of B decides to take over all of X by pressure, and B invades A.
A efficiently repels B’s invasion; its armed forces pursue B’s military onto B’s territory. In doing so, A occupies XB. A argues that controlling XB is important to forestall any additional assaults by B and to safe XA – it’s actually the case that, as a consequence of geography, controlling XB makes it a lot simpler to defend XA.
A then implements an express coverage of annexation of XB, claiming that it has the correct to take this territory, which it conquered in a warfare of self-defence. The management of B proceed making public statements that B is the rightful sovereign of all of X, after which as quickly as B reconstitutes its armed forces it is going to assault A once more in an try to retake XB and in addition seize XA.
To summarize:
- A has a legitimate self-defence declare in opposition to B. Specifically, its entry into B’s territory and the occupation of XB are (initially) justified in jus advert bellum phrases – holding XB is important and proportionate to forestall B’s assaults in opposition to A (together with XA). (A superb comparability level could be Ukraine’s ongoing operation within the Kursk area of Russia).
- That self-defence declare continues, no less than in precept, as a result of B expressly says that, regardless of its defeat, it is going to assault A once more if given the possibility.
- As a matter of truth, the continued occupation of XB drastically facilitates the defence of A and XA.
- Nonetheless, A clearly violates the prohibition on the acquisition of territory via pressure, by looking for to expressly annex XB. Most students would agree that annexation is prohibited even in a warfare of self-defence, as a result of everlasting switch of title is rarely going to be obligatory and proportionate ( comparability level right here could be the Golan Heights).
This, once more, is an easier state of affairs in numerous methods than Israel/Palestine. So bearing this in thoughts, would you, in making use of the ICJ’s holding in para. 261 of the Palestine AO, maintain that A’s ‘sustained abuse’ of its place as an occupying energy in XB, by looking for to annex XB, suffices to render A’s continued presence in XB illegal? Would this abuse, in your opinion, primarily defeat A’s declare to self-defence in opposition to B, taking into consideration that, have been it not for the annexation, A’s management of XB could be a part of a legitimate train of the correct to self-defence? In different phrases, in the event you have been a decide of the Court docket, would you not solely rule that A has to desist from any try to annex XB, but additionally that A’s continued presence in XB is illegitimate and that it was to withdraw as quickly as attainable?
That is the fundamental variant of this hypo, which we are able to modify so as to add different points. For instance, let’s imagine that XB is inhabited by a definite folks, the X-ites, and that the X-ites, via the reliable representatives of their folks, wish to train their proper to self-determination by persevering with to dwell inside B. The X-ites don’t wish to dwell inside A, no less than partly due to a protracted historical past of the oppression of X-ites inside A. A’s annexation of XB would thus not solely violate the rule in opposition to the acquisition of territory via pressure, but additionally the correct of X-ites to (inside) self-determination inside B. So, in the event you answered the query within the fundamental state of affairs negatively, that’s you thought that ‘mere’ annexation couldn’t defeat a legitimate declare to self-defence, would the added violation of the correct to self-determination change your reply? This modified state of affairs is supposed to tease out the significance that self-determination performs in para. 261 – and we may modify it additional if wanted, e.g. by including systematic human rights violations.
Feedback from readers most welcome.
