A Seismic Change

It is no understatement to say that the 19 July 2024 ICJ Advisory Opinion concerning the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (Opinion) constitutes a seismic change in the international law and practice on the question of Palestine. In one fell swoop, the ICJ has shifted what was hitherto an almost exclusive focus of the international community on how Israel has administered its 57-year occupation of the Occupied Palestinian Territory (OPT) under International Humanitarian Law (IHL) and International Human Rights Law (IHRL), to the requirement that Israel end its occupation of that territory as “rapidly as possible”. In receiving the Advisory Opinion through resolution ES-10/24 of 18 September 2023, the General Assembly has demanded:

“that Israel brings to an end without delay its unlawful presence in the Occupied Palestinian Territory, which constitutes a wrongful act of a continuing character entailing its international responsibility, and do so no later than 12 months from the adoption of the present resolution.”

This shift from what I have called the ‘managerial’ and ‘humanitarian’ approach of the United Nations on the OPT to one that is emancipatory in outlook, is the single most important takeaway of the case.¹⁾ At last, the international community has set a specific deadline by which Israel must withdraw from the OPT.

It is now incontestable that Israel’s occupation is not merely unlawful, but –  being an ongoing use of force – amounts to an aggression of a continuing character against the territorial integrity and political independence of the State of Palestine and a violation of the right of the Palestinian people to self-determination contrary to the UN Charter and general international law.²⁾ As jus cogens norms, neither of these violations can be justified under any circumstance, including on grounds of purported ‘security’ or ‘self-defence’. Not only is Israel under an unambiguous obligation to end its illegal presence in the OPT unconditionally, totally, “as rapidly as possible” and “without delay” (i.e. by 17 September 2025) in line with the Law of State Responsibility, but it must also make full reparation for damage caused to any natural or legal persons concerned going back to 1967, including restitution, compensation and satisfaction (Opinion, paras. 270, 285). Furthermore, third States and international organizations, including the United Nations, are under an obligation to not recognize as legal the situation arising from Israel’s continued presence in the OPT, nor render aid or assistance in the maintenance of that situation (Opinion, para. 285). The scope of these latter obligations is very broad, and cuts across a host of bilateral and multilateral relations with Israel, both public and private. This includes military, economic, political, academic, social, and cultural relations that “entrench” or even merely “concern” Israel’s continued illegal presence in the OPT or in any way impede the Palestinian people’s right to self-determination resulting from that illegal presence (Opinion, paras. 278, 279). In short, the ICJ has provided a boon to the Palestine freedom and anti-apartheid movement by reaffirming the obligation of all States to distinguish in their dealings with Israel between the OPT and Israel.

An Implied Collapse of the Jus ad Bellum with the Jus in Bello?

But beyond the Palestine question, as such, the Opinion is notable for another thing upon which only a few scholars, including myself, have written.³⁾ It represents the first time an international judicial authority has broached the subject of whether and under what circumstances a belligerent occupation of foreign territory not otherwise tainted by an initial illegal use of force (an open question in this case, which the Court did not deal with) can become unlawful over time. In so doing, it has dared to tread, if only impliedly, upon a received wisdom of international law that holds as sacrosanct the fundamental distinction between the law governing the use of force (jus ad bellum) and the law governing how force is used in armed conflict, including the law of belligerent occupation (jus in bello).

The conventional wisdom requires the distinction between the ad bellum and in bello law on the theory that to collapse them would frustrate the object and purpose of IHL, which is to limit the means and methods of armed conflict and to protect persons who are not, or are no longer, directly participating in hostilities. Because of its humanitarian purpose, IHL and its application must remain agnostic as to who is legally to blame for the commencement and continuation of armed conflict under the ad bellum law. If it were otherwise, so goes the thinking, the incentive of parties to armed conflict to abide by the in bello law would be reduced under the weight of competing accusations of aggressive war, thereby resulting in greater harm during the course of hostilities to persons otherwise entitled to be treated humanely in line with the in bello rules.

In the past, members of the Court have maintained respect for this fundamental distinction in its consideration of situations of belligerent occupation. For example, in Armed Activities (DRC v. Uganda) the distinction was affirmed, in part, by Judge Koojimans where he opined in obiter dictum that: “[i]t goes without saying that the outcome of an unlawful act is tainted with illegality.  The occupation resulting from an illegal use of force betrays its origin but the rules governing its regime do not characterize the origin of the result as lawful or unlawful” (Separate Opinion of Judge Koojimans, para. 60).

In the Opinion, the Court appears to continue this approach. This is evident in para. 251, where the Court expressly recalls the distinction between the jus ad bellum and the jus in bello, indicating that “the former rules determine the legality of the continued presence of the occupying Power in the occupied territory; while the latter continue to apply to the occupying Power, regardless of the legality or illegality of its presence”. The Court accordingly determines that “[i]t is the former category of rules and principles regarding the use of force, together with the right of peoples to self-determination, that the Court considers to be applicable to its reply to the” question of how Israel’s policies and practices affect the legal status of its occupation of the OPT (ibid.). So far so good.

So where does the collapse of the fundamental distinction appear in the Opinion? Simply put, it arises from the fact that the base upon which the Court concludes that Israel’s continued presence in the OPT is unlawful ad bellum rests on its prior evaluation of underlying policies and practices of Israel in the OPT in bello. In short, it is the cumulative effect of discrete violations over time of the jus in bello that results in the overall conclusion that Israel’s continued presence in the OPT is violative of two fundamental norms of international law of erga omnes character and is therefore unlawful as a matter of the jus ad bellum: namely, the inadmissibility of the acquisition of territory by force, and the violation of a people’s right to self-determination (Opinion, para. 261).

To be fair, the Court is not the progenitor of the implied collapse between the jus ad bellum and the jus in bello. Rather, the Court is merely a prisoner of the facts and law before it. And, broadly speaking, it adeptly handles these facts and this law in three separate but connected steps that have confounded at least one commentator but which, if followed carefully, make eminent legal sense. A summary of the Court’s three step approach – tracking closely the order of the questions put to it by the General Assembly in resolution 77/247 of 30 December 2024 – is as follows.

(1) The Court commences its substantive analysis of the questions put to it by noting that under IHL “occupation is a temporary situation to respond to military necessity, and it cannot transfer title of sovereignty to the occupying Power” (Opinion, para. 105). It then examines the legality of various Israeli policies and practices in the OPT. This assessment is rooted, first and foremost, in Israel’s illegal settlement policy – a violation of article 49 of the Fourth Geneva Convention (Opinion, paras. 111-119). From there, among the other policies and practices determined by the Court to be illegal, all of which are connected to the settlement policy, are the following:

• Confiscation or requisitioning of Palestinian land in violation of arts. 46, 52, and 55 of the 1907 Hague Regulations (Opinion, paras. 120-123);
• Exploitation of Palestinian natural resources in violation of art. 55 of the 1907 Hague Regulations (Opinion, paras. 124-133);
• Extension of Israeli law and regulatory authority in the OPT in violation of art. 43 of the 1907 Hague Regulations and art. 64 of the Fourth Geneva Convention (Opinion, 134-141);
• Forcible transfer of the Palestinian population in violation of art. 49 of the Fourth Geneva Convention (Opinion, para. 142-147);
• Failure to protect and ensure Palestinian rights to life, humane treatment and freedom from violence in violation of art. 46 of the 1907 Hague Regulations and art. 27 of the Fourth Geneva Convention (Opinion, para. 148-157).⁴⁾

(2) Far from amounting merely to discrete violations of the in bello law, the Court then moves on to consider their cumulative effect over 57-years. It indicates, in no uncertain terms, that Israel’s policies and practices “amount to annexation of large parts” of the OPT because they “are designed to remain in place indefinitely and to create irreversible effects on the ground” (Opinion, para. 173). It then concludes that “to seek to acquire sovereignty over an occupied territory, as shown by the policies and practices adopted by Israel in East Jerusalem and the West Bank, is contrary to the prohibition of the use of force in international relations and its corollary principle of the non-acquisition of territory by force” (Opinion, para. 179).

As part of this step, the Court then turns to assessing whether Israel’s “legislation and measures” related to its “policies and practices” in the OPT are “discriminatory” (Opinion, paras. 180-184). For this, it necessarily turns to IHRL, without abandoning the overall context of the jus in bello within which that law must be interpreted given Israel remains an occupying Power in the territory. Applying this framework, the Court determines that “the regime of comprehensive restrictions imposed by Israel on Palestinians in the Occupied Palestinian Territory” – including on residency rights, freedom of movement and demolition of property – “constitutes systemic discrimination based on, inter alia, race, religion or ethnic origin, in violation of Articles 2, paragraph 1, and 26 of the ICCPR, Article 2, paragraph 2, of the ICESCR, and Article 2 of CERD” (Opinion, paras. 192-223). Not losing sight of the foundational problem of the settlements, the Court observes “that Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities”, leading it to conclude “that Israel’s legislation and measures constitute a breach of Article 3 of CERD” by which States parties – including Israel – “particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” (Opinion, paras. 224-229).

A final part of this stage of the Court’s analysis is its opinion concerning self-determination. Building on its determination in East Timor, subsequently affirmed in the Wall and Chagos opinions, that the obligation to respect self-determination of peoples is of erga omnes character, the Court indicates for the first time that “in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law” (Opinion, paras. 230-235). Set against this jus in bello frame of reference (i.e. “in cases of foreign occupation”), the Court then determines after careful analysis that “Israel’s unlawful policies and practices” that it has reviewed under the in bello law “are in breach of Israel’s obligation to respect the right of the Palestinian people to self-determination” (Opinion, para. 243).

(3) At this stage, the Court does not have very far to go to come full circle with its analysis. It recalls that “the Israeli policies and practices” that it has assessed to be in violation of the jus in bello “have brought about changes in the physical character, legal status, demographic composition and territorial integrity of the Occupied Palestinian Territory” and that “[t]hese changes manifest an intention to create a permanent and irreversible Israeli presence in the Occupied Palestinian Territory” in violation of the jus ad bellum (Opinion, para. 252). The Court then correctly affirms that “occupation cannot be used in such a manner as to leave indefinitely the occupied population in a state of suspension and uncertainty, denying them their right to self-determination while integrating parts of their territory into the occupying Power’s own territory” (Opinion, para. 257). It then concludes that:

“The sustained abuse by Israel of its position as an occupying Power, through annexation and an assertion of permanent control over the Occupied Palestinian Territory and continued frustration of the right of the Palestinian people to self-determination, violates fundamental principles of international law and renders Israel’s presence in the Occupied Palestinian Territory unlawful.” (para. 261)

In sum, the Court essentially answers the following question that I have set out in various forms in my writings over the years, as follows: where a prolonged occupant engages in serious violations of IHL, including with consequences that systematically violate certain of its obligations erga omnes and/or obligations of a jus cogens character under general international law derogation from which is not permitted, how can it be said that the regime of force maintaining the situation thus remains “legal”?⁵⁾

In short, as affirmed by the Court, it can’t.

Ripple Effects

Aside from the groundbreaking impact the Opinion will have for the international law on the question of Palestine, there is little doubt that it has clear implications for other situations of prolonged foreign military occupation. The most obvious of these are the situations in the occupied Syrian Golan Heights and the occupied Western Sahara. In both of those cases the occupying Powers – Israel and Morocco, respectively – have pursued many of the same (and sometimes identical) structural violations of the jus in bello with the aim of frustrating self-determination of the protected population and annexing its territory in violation of the jus ad bellum. It remains to be seen what the international community does in those situations in light of this Opinion.