Israel has crossed the red line – no longer the lawful occupant of the Palestinian Territories

When is enough, enough under international law?

Special Rapporteur S. Michael Lynk

That’s the question that the UN rapporteur for human rights in the occupied territories, S. Michael Lynk, asked and answered in his report to the U.N. General Assembly in October 2017.

Lynk is a Canadian professor of law and human rights expert. His words should carry some umpf! in the international community, if not with Israeli officials who have persistently refused to accept more than 40 UN resolutions over the past half century pertaining to the occupied territories.

To summarize this 22 page report, which should be required reading for everyone interested in the future of Israel and Palestine, Professor Lynk is opening a new (legal) chapter in Israel’s occupation of East Jerusalem, the West Bank, and the Gaza Strip.

He is making the case for recognizing Israel as an illegal occupier, and calling on the international community to use all of the tools in its toolbox to end this illegal occupation.

Israel denies that it’s occupying Palestine, despite the contrary opinion of the rest of the world. (Israeli deputy foreign minister denies Palestinians live under occupation: ‘This is Judea and Samaria’)

“The Israeli occupation has become a legal and humanitarian oxymoron: an occupation without end,” Professor Lynk writes. It is the longest-running military occupation in the modern world.

The inability to end the Israeli occupation has been an abject failure of international diplomacy, a darkening stain on the efficacy of international law and the source of multiple broken promises to the Palestinian people. Nor does the prolongation of this occupation serve the people of Israel, for it corrodes their society and their public institutions by entangling them in their government’s drive to foreclose a viable and just solution to the half-century of occupation and the century-long conflict, and makes them the benefactors — unwittingly or not — of a profoundly unequal and unjust relationship.

How should we characterize this occupation in 2017? Professor Lynk proposes that Israel is no longer the lawful occupant of the Palestinian territory, but has now crossed a red line and has become the unlawful occupier. His argument goes like this:

1. “Two decades into the 21st century, the norm that guides our global community is that people are citizens, not subjects, of the state that rules them. … Colonialism, occupation and other forms of alien rule are very much the exception to this norm.”
2. The right of self-determination, and economic, social and cultural rights — are to be interpreted broadly, while the exceptions to these fundamental rights — such as military necessity, significant threats to national security or public emergencies — are to be interpreted narrowly.
3. Three core purposes of modern international humanitarian law related to foreign military occupation are: (a) closely regulate the occupation to ensure that the territory achieves, or is restored to, a state of sovereignty, (b) prevent the territory from becoming a fruit of conquest, and (c) safeguard the protected people under occupation.
4. The International Court of Justice has affirmed that international human rights law continues to apply in times of conflict and throughout an occupation.
5. The right to self-determination is a right that applies to everyone living under occupation, and the court has specifically recognized the right of the Palestinians to self-determination.
6. Israel has occupied the Palestinian territory – the West Bank, including East Jerusalem and Gaza – since June 1967, and therefore the Fourth Geneva Convention applies in full. 
7. Palestinians are “protected persons” under international humanitarian law and are entitled to the protections of the Fourth Geneva Convention. The international community has widely rejected Israel’s assertions that the Fourth Geneva Convention does not apply.

So what should the international community do?

Professor Lynk proposes that the U.N. General Assembly seek an advisory opinion from the International Court of Justice on the question of the legality of the occupation.

International Court of Justice

Courts and lawyers favor tradition and precedent (stare decisis), and Professor Lynk finds ample precedent in the ICJ’s 1971 Namibia opinion, where the court decided that South Africa’s continued presence in the territory of Namibia was illegal.  (On a side note, I’ve just completed a couple of online courses in International Humanitarian Law and International Human Rights Law, and really appreciate how Professor Lynk’s report connects all of the dots that I’ve just learned.)

Application of the Legality Test to Israel’s Occupation

The ICJ should consider four elements, Professor Lynk writes, to determine if Israel is now an illegal occupying force.

1. The prohibition against annexation: Israeli officials have made their intentions crystal clear. There are now 210,000 Israeli settlers living in occupied East Jerusalem, and another 400,000 settlers live in approximately 225 settlements in the occupied West Bank. Israel has been establishing its “facts on the ground” for a de facto annexation of the occupied lands that belong to the Palestinian people under international law. “The settlers live under Israeli law in Israeli-only settlements, drive on an Israeli-only road system, and benefit greatly from the enormous sums of public money spent by Israel on entrenching and expanding the settlements. … What country would invest so heavily over so many years to establish many immutable facts on the ground in an occupied territory if it did not intend to remain permanently?”
2. Occupations must be temporary, and not indefinite or permanent. “Modern occupations that have broadly adhered to the strict principles concerning temporariness, non-annexation, trusteeship and good faith have not exceed 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led coalition’s occupation of Iraq.” Israel’s occupation is 50 years old. “The only credible explanation for Israel’s continuation of the occupation and its thickening of the settlement regime is to enshrine its sovereign claim over part or all of the Palestinian territory, a colonial ambition par excellence.”
3. The Best Interest/Trust Principle. “Under international law, Israel is required to administer the occupied Palestinian territory in the best interests of the Palestinian people, but the social and economic impact of the occupation on the Palestinians in the occupied territory, which had always been disadvantageous, has become increasingly dire in recent years.” Professor Lynk’s report spells out in no uncertain terms how Israel has taken advantage of the natural resources, and ruled the Palestinian Territory as an internal colony, to create a “strangled economy, mounting impoverishmet, daily impositions and indignities, and receding hope for a reversal of fortune in the foreseeable future.”
4. Good Faith. Professor Lynk says that Israel has not been acting in good faith because it hasn’t complied with the 3 elements above, and it hasn’t complied with specific directions issued by the United Nations pertaining to the occupation. The enumeration of Israel’s noncompliance with international law is damning and shocking when it’s all spelled out in one place. Israel (and it’s best friend the United States Congress) might argue that the United Nations is bias against Israel, but what Israel really means is that the community of nations has not accepted Israel’s blatant attempt to unilaterally rewrite international law to suit its own self-interest.

Israeli checkpoint for Palestinians posted by Husam Jubran on Facebook Nov. 2, 2017

Professor Lynk’s concluding observation is an alarm bell that every lawyer should take seriously, regardless of personal opinions about Israel / Palestine and the occupation.

International law is the promise that states make to one another, and to their people, that rights will be respected, protections will be honoured, agreements and obligations will be satisfied, and peace and justice will be pursued. It is a tribute to the international community that it has sustained this vision of international law throughout its supervision of Israel’s occupation of the Palestinian territory.

But it is no tribute that — as the occupation deepened, as the occupier’s intentions became crystal clear, and as its defiance grew — the international community recoiled from answering Israel’s splintering of the Palestinian territory and disfiguring of the laws of occupation with the robust tools that international law and diplomacy provide. International law, along with the peoples of Palestine and Israel, have all suffered in the process.

The challenge now facing the international community … is to devise and employ the appropriate diplomatic and legal steps that, measure by measure, would completely and fully end the occupation.