Is Israel’s occupation of Palestine ‘legal’ or ‘illegal’?

LEGAL OPINION by Dr. Ralph Wilde ( November 29, 2022

Israel has occupied Palestine (including the West Bank, East Jerusalem and the Gaza Strip) since 1967. FULL STOP. No debate, no counter factual, no denial. Palestinians have been living under a military occupation for 55 years. Several generations have been born and died under military rule.

Map of the Occupied Palestinian Territories (West Bank and Gaza Strip), marked by the Green Line. Based on Reference Map: occupied Palestinian territory: Overview Map, as of December 2011. Published by United Nations Office for the Coordination of Humanitarian Affairs (OCHAoPt), 25 January 2012

The previous U.N. Special Rapporteur on the situation of human rights in the Palestinian territories, S. Michael Lynk, argued (persuasively in my mind) that Israel has crossed a red line with its decades-long occupation in his report to the U.N. General Assembly in October 2017 which I summarized here. He urged the General Assembly to seek an advisory opinion from the International Court of Justice on the question of the legality of the occupation. Lynk posited a four-part legal test that should be applied to the question of the legality of Israel’s lengthy occupation. (1) Prohibition against annexation, (2) Occupations must be temporary, and not indefinite or permanent, (3) Best Interest/Trust Principle, and (4) Good Faith.

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

In September 2022, the current Special Rapporteur, Francesca Albanese, noted that the three main approaches commonly used to examine Israel’s occupation of Palestine (namely, the humanitarian approach, the political approach, and the economic development approach) are inherently flawed because “they conflate root causes and symptoms, and focus on Israel’s lack of compliance with international law as a siloed phenomenon, rather than a longstanding structural component of the prolonged disenfranchisement of the Palestinians under occupation.” Albanese spelled out Israel’s actions during the past 55 years of occupation, including the territorial fragmentation of Palestine – preventing unity, the exploitation of natural resources – preventing economic prosperity for Palestinians, erasing Palestinian cultural and civil rights – preventing identity, preventing political existence (and resistance), and preventing statehood – “negotiating the illegal”? Her report is a must read, available online here.

Special Rapporteur Albanese called for a paradigm shift, starting with —

the recognition of the current reality in the occupied Palestinian territory as that of an intentionally acquisitive, segregationist and repressive regime, which has enabled, for 55 years, the disenfranchisement of the Palestinians, caging them into Bantustans of disrupted memories, broken ties and hopes, pursuing the ultimate goal to consolidate minority rule over a native majority on lands usurped through force, abusive and discriminatory policies and pillaging of resources. A prolonged occupation maintained for ostensible “security reasons” disguising Israeli settler-colonial intentions to extinguish Palestinian people’s right of self-determination while acquiring their receding territory as its own, as explicitly indicated by Israeli political figures, is something that the international community can no longer tolerate. This must be addressed in a holistic fashion. (Link to report.)

Special Rapporteur Francesca Albanese

The Special Rapporteur’s recommendations in September 2022 included — 1) Israel complies with its obligations under international law and ceases to impede the realization of the right to self-determination of the Palestinian people, ends it settler-colonial occupation immediately and make reparations. 2) All states condemn the intentional violations by Israel of the Palestinian right to self-determination; deploy an international protective presence to constrain the violence routinely used in the occupied Palestinian territory and to protect the Palestinian people; investigate and pursue accountability through both the ICC and universal jurisdiction mechanisms; prevent, investigate and redress human rights abuses by all business enterprises in their jurisdiction, including disengaging from the colonies. 3) The High Commissioner for Human Rights should immediately release the updated database of businesses involved in the settlements. 4) Encourage the Independent International Commission of Inquiry to investigate the status of the right to self-determination and Israeli settler-colonial endeavors in more depth. (Full Report)

Just like clockwork, the messenger faced a horrific smear campaign following the release of her report. Illustrating the perverse and damaging role of the U.S. in Israel’s occupation of Palestine, several Democratic and Republican members of Congress have called on the U.N. Secretary General to fire Special Rapporteur Albanese. (Here and here.)

Lynk opined that Israel’s long-term occupation is illegal because of its duration (50+ years). Albanese urged a paradigm shift in how the international community examines the occupation. In November 2022, Dr. Ralph Wilde issued a legal opinion that explains why Israel’s occupation as a system of control and domination is without a valid legal basis from its inception.

Dr. Ralph Wilde, Associate Professor, Faculty of Laws, University College London, University of London. (bio)

Dr. Wilde’s opinion reads like a legal brief intended for a court, certainly not for the general public. Having a legal education, reading Noura Erakat’s work, and completing a couple of international law classes online, I felt prepared to read the 79-page opinion. What I wasn’t prepared for was the comprehensive recitation of international humanitarian laws, international human rights laws, and international criminal laws all focused with laser precision on the question of whether Israel’s occupation of Palestine is legal or illegal? And the conclusion? The occupation is existentially illegal and must end immediately without preconditions. Every day the occupation continues is a violation of international law.

Listen to Dr. Wilde explain his legal opinion in his own words — minutes 25:40:00 to 39:00:00.

At the end of December 2022, the United Nations General Assembly approved a resolution to ask the the International Court of Justice (ICJ) for a legal opinion on the legality of Israel’s occupation. Unsurprisingly, the U.S. voted against the resolution. Although the ICJ’s opinion, if it accepts jurisdiction, will be binding, the court has no enforcement mechanism.

Summary of Dr. Ralph Wilde’s Legal Opinion (full opinion available online here)

This Opinion clarifies what the terms ‘legal’/‘illegal’ mean, in relation to the occupation of the Palestinian West Bank (including East Jerusalem) and Gaza, according to the relevant, multiple areas of applicable international law. It explains how the different forms of ‘legality’/ ‘illegality’ relate to each other, and how they apply to the occupation. In each area of law, it explains what difference ending illegality would make (e.g., ending abuses, preventing annexation, ending the occupation itself). The meaning and significance of the following terms/areas of international law are explained: self-determination; settler colonialism; the jus ad bellum/law on the use of force/aggression; (belligerent) occupation/prolonged occupation; statehood; sovereignty; title to territory; annexation; apartheid; jus in bello/law of armed conflict/international humanitarian law (IHL)/laws of war/occupation law; international human rights law (IHRL); international criminal law (including the crime of aggression, war crimes, crimes against humanity, the crime of apartheid, the crime of torture); United Nations law and the law of treaties.

Legality/illegality can refer to the existence of the occupation, or its conduct, or both.

As to existential legality/illegality, the occupation, simply by virtue of exercising control over the West Bank (including East Jerusalem) and Gaza, and consequently preventing the Palestinian people from full and effective self-governance, constitutes a fundamental impediment to the realization of the right of self-determination enjoyed by the Palestinian people in international law. The only basis such an impediment could be legally justified is according to the law on the use of force—the jus ad bellum.

Assuming, hypothetically, that Israel had a right of self-defence in 1967 that justified, legally, the introduction of the occupation then, this justification has not persisted, nor has an alternative legal justification arisen. There has been no actual or imminent armed attack justifying, as necessary and proportionate, the occupation as a means of self-defence. And the doctrine of preventative self-defence, justifying the occupation as a means of stopping a threat from emerging, has no basis in international law. Neither United Nations Security Council Resolution 242, nor the so-called Oslo Accords, provide an alternative legal basis for the existence/continuation of the occupation. Indeed, the Oslo Accords are themselves violative of international law, because ‘consent’ to them by the PLO was coerced through the illegal use of force, and, relatedly, they conflicted with norms of international law that have a special non-derogable/jus cogens status (the prohibition on the use of force other than in self-defence, and the right of self-determination). More generally there is no international law right to maintain the occupation pending a peace agreement, and/or as a means of creating facts on the ground’ that might give Israel advantages in relation to such an agreement, and/or as a means of coercing the Palestinian people into agreeing a settlement to the situation that they would not accept otherwise.

The consequence of the foregoing is that there is no valid international law basis for the existence of the occupation. In consequence, the occupation is an unlawful use of force, an aggression, and a violation of the right to self-determination of the Palestinian people, on the part of Israel and, in the case of aggression, also a crime on an individual level for senior Israeli leaders. As a result, the occupation is existentially illegal and must end immediately. Legally, the requirement of termination is not contingent on particular circumstances being present. Specifically, the following factors or conditions cannot be, by themselves, a pretext for delaying termination: willingness/consent by Israel; the adoption of a peace agreement; the adoption of standards within or the giving of undertakings by the Palestinian people; approval by the UN, the Quartet, other states etc. In consequence, every day the occupation continues is a breach of international law.

The existential illegality of the occupation arises out of the simple fact of the occupation as a system of control and domination without a valid legal basis. This is then compounded by the occupation’s prolonged duration, its link to de jure and de facto annexation, and the egregious abuses perpetrated against the Palestinian people. The use of military force to annex territory is also an independent basis for existential illegality: also a violation of the international law on the use of force, and so also an aggression at both a state level and in terms of individual criminal responsibility. (By contrast, the prolonged length of the occupation, and its abusive nature, are not independent bases for existential illegality, but are relevant, as aggravating factors, to the question of existential legality as a matter of the law on the use of force; the abusive nature is also relevant to the separate matter of legality/illegality of conduct). Any purported annexations are also without legal effect, because in international law Israel is not and cannot be sovereign over any part of the West Bank or Gaza, including East Jerusalem, through the assertion of a claim to this effect based on the exercise of effective control enabled through the use of force, and in the absence of consent to such annexation freely given by the Palestinian people.

As to the legality/illegality of the conduct of the occupation, there are multiple, egregious breaches of the relevant areas of applicable international law: the laws of war/law of armed conflict/jus in bello/international humanitarian law including occupation law, international human rights law generally, and, within this, the prohibition of racial discrimination generally and the prohibition of apartheid in particular. These are breaches at the level of the state of Israel, and also, in some cases, individual crimes—war crimes, crimes against humanity, the crime of apartheid and the crime of torture.
The occupation is thus illegal in both its existence and its conduct, and in both cases this gives rise to both state and individual criminal responsibility.

(All the main areas of international law violated—the prohibition on the use of force other than in self-defence/the prohibition of aggression; the right of self-determination; the prohibition of racial discrimination generally and apartheid in particular; a sub-set of the protections in IHL; the prohibition of torture—are norms that have the special non-derogable/jus cogens status mentioned above in connection with the Oslo Accords. Jus cogens is not a separate category of substantive international legal rules but is, rather, a way of characterizing certain rules as being of a special character when it comes to their interaction with other rules of international law.)

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