In the last few years, despite such prohibition, Israeli officials have announced their plans and intention to annex the occupied Palestinian territory (oPt) in whole or part. In a recent statement, on 11 November 2024, Israel’s Finance Minister Smotrich announced a plan to impose Israel’s sovereignty to and annex the occupied West Bank in 2025. He also confirmed that the groundwork is already being put into place (see here and here). His plans also include annexation of the Gaza Strip, where the Israeli regime is conducting mass forcible transfer of Palestinians and building military bases (see here and here). The announcement of the US President to forcibly transfer Gaza’s population of over two million to Jordan and Egypt and take over the Strip, which was embraced by the Israeli far-right government (see here and here), emboldens Israel’s long-visioned plan to freely annex the occupied Palestinian territory. It has, in fact, encouraged further Israeli settlements expansion and land confiscation in the West Bank (see here and here).
This comes to no surprise as the Israeli government, led by Natanyahu, has long been in support of annexation and confiscation of Palestinian land in favour of illegal settlements (see here). At the factual level, Israel has been i) maintaining and expanding illegal settlements and outposts and their associated infrastructure, ii) expropriating Palestinian land and exploiting its natural resources, iii) proclaiming Jerusalem as its capital, iv) maintaining a restrictive and discriminatory planning and building regime for Palestinians, and v) applying extensive Israeli domestic law to East Jerusalem and extending Israeli law extraterritorially to Israeli settlers in the West Bank.
Territorial annexation by force, whether takes the form of de facto or de jure, is unlawful. In its 2024 Advisory Opinion on Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory (oPt), including East Jerusalem, the ICJ affirmed that both de facto annexation and du jure annexation of the oPt are equally unlawful. This blogpost discusses Israel’s plan to assert its sovereignty over and annex the oPt and the obligation of third states not to recognize such annexation in the light of the ICJ’s 2024 Advisory Opinion.
The ICJ dedicated paragraphs 157–179 to discuss the notion of territorial annexation and examine Israel’s policies and practices and their (il)legality, with a view to determining whether they amount to territorial annexation. Annexation of all or part of the occupied territory by the occupying power is seen as a form of aggression according to Article 5(3) of the UN General Assembly (UNGA) Resolution 3314 (XXIX) on the Definition of Aggression, which states that “[n]o territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful” (see UNGA Res 3314 (XXIX) of 14 December 1974, Annex: Definition of Aggression, art 5.3). The UN Security Council (UNSC) emphasised the principle of “inadmissibility of the acquisition of territory by war” in Resolution 242 (1967). It also has repeatedly affirmed such inadmissibility on various occasions (Resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003), 1850 (2008), and 2334 (2016)).
Likewise, UNGA and the Human Rights Council (HRC) recognised the inadmissibility of territorial acquisition (Resolutions UNGA Res. 3237 (XXIX) of 22 November 1974, UNGA Res. 43/177 of15 December 1988 and 52/250 of 7 July 1998, and UNGA Res. 72/14 of 7 December 2017; see also HRC Res. 37/36 of 6 April 2018). The UN Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States from 1970 proclaims the principle that “[n]o territorial acquisition resulting from the threat or use of force shall be recognised as legal” (see p. 123). The Court has previously referred to territorial integrity as a reflection of customary international law (the Wall Advisory Opinion 2004, para 86), and affirmed that “State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination” (Chagos Advisory Opinion 2019, para 159). Thus, the acquisition of occupied territory by the occupying power is unlawful and contradicts Article 2, paragraph 4, of the Charter of the United Nations. The Court based the prohibition of annexation on the prohibition of the use of force and connected it with the right of the Palestinian people to self-determination. In fact, the discussion on the prohibition of annexation as a separate and stand-alone principle is lacking (see analysis by Brunk and Hakimi here, here and here). With merging the prohibition of annexation into the understanding of the prohibition of the use of force and the right to self-determination, the court implicitly considers the prohibition of territorial annexation as obligation erga omnes.
In line with the principle of the inadmissibility of territorial acquisition by force, the Court defined annexation as:
“the forcible acquisition by the occupying Power of the territory that it occupies, namely its integration into the territory of the occupying Power. Annexation, then, presupposes the intent of the occupying Power to exercise permanent control over the occupied territory” (ICJ 2024 Advisory Opinion, para 158).
Some scholars argued that with this definition, the Court “discards the distinction between de jure and de facto annexations in favor of a standard that focuses on intent to assert assertions of ‘permanent control’ over the territory” (see here). When discussing annexation in its Advisory Opinion, Court focuses on the intent element indeed. However, focusing on the intent disregards the Israeli practices and plans to annex the Palestinian territory as such because certain actions such as settlements and land confiscation are illegal and permanent in nature. Thus, the intent should not be a prerequisite to illegality of territorial annexation by force as actions must be sufficient to determine annexation and its illegality.
The Court still differs between de facto annexation and de jure annexation. The Israeli territorial annexation in Palestine is regarded as being conducted in two forms, one is manifested officially in the law (de jure) and the other is manifested through policies and practice (de facto) (see Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (A/73/45717). The Court drew the distinction between de jure annexation and de facto annexation. According to this distinction:
“de jure annexation consists in the formal declaration by the occupying Power of sovereignty over the occupied territory, whereas de facto annexation comprises acts short of a formal declaration that create a “fait accompli” on the ground and that consolidate the occupying Power’s permanent control over the occupied territory” (ICJ 2024 Advisory Opinion, para 160).
Israel’s policies and practices in the oPt are entrenching its extensive control over the Palestinian people. They are of permanent nature and irreversible effects. Consequently, the Court deems that “these policies and practices amount to annexation of large parts of the [oPt]” (ICJ 2024 Advisory Opinion, para 173). De facto annexation is assessed in accordance with the practices on the ground and requires a comprehensive legal assessment, which has already been provided by the Court. Whether or not the Israeli government officially pronounces a law or declaration to annex the oPt in full or part, Israel’s policies and practices yield that it has de facto imposed its total control and asserted its sovereignty. The deciding element to establish de facto annexation is the permanent fixture of these policies and practices, as they are designed and implemented for all intents and purposes to stay in place, such as settlements and their associated infrastructure. Therefore, the temporariness cannot be used as a justification under the law of occupation. In fact, the Court considered that the policies and practices of Israel renders the Israeli presence in the oPt illegal.
An official announcement would mean turning de facto annexation to de jure annexation. Such announcement would not make a difference at the legal level; however, it will make annexation an explicit conduct that unquestionably obliges other States to take necessary measures. Israel is in violation of certain international obligations, including the obligation erga omnes arising from the prohibition of the use of force to acquire territory. Because the prohibition of territorial annexation is a concern to all States, other States, are under the legal obligation “not to recognize as lawful territorial changes effected by means of annexation” (Hofmann 2020). This is recognised as a binding rule of international law. According to Resolution 3314 (XXIX), not only is territorial annexation a breach of international law but it also applies to the recognition of such an annexation. According to UNGA Resolution 77/126, it is also unlawful to render aid or assistance in maintaining, the situation created by measures that are illegal under international law.
The Court affirmed these legal consequences for other States and provided that:
“Member States are under an obligation not to recognize any changes in the physical character or demographic composition, institutional structure or status of the territory occupied by Israel… including East Jerusalem… [and that] all States are under an obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the [oPt and] not to render aid or assistance in maintaining the situation…]” (ICJ 2024 Advisory Opinion, paras 278-279).
The Court provided two main negative obligations to refrain from actions that violate international law. In this regard, other states who recognize Israel’s presence in the oPt as legal or assist in maintaining the situation are in violation of their international obligations. As a way of example, the USA’s recognition of unified Jerusalem as the capital of Israel and relocating its embassy to Jerusalem are illegal, because they constitute a move that recognises Israel’s territorial annexation of East Jerusalem as legal. Not to mention that the embassy is built on a Palestinian privately-owned land “stolen from its owners, including the waqf property of several [Palestinian] families” (see here). Additionally, there are positive obligations that Third States implement, the duty to prevent acts of territorial annexation by force, Third States must act to end and take measures to prevent – any further – Israeli annexation of the Palestinian territory in the future. Finally, the support or lack of action from Third States is a sign of a failure to maintain international peace and security that undermines international rule-based legal order.
