From Illegal Annexation to Illegal Occupation: The Missing Link in the Reasoning of the International Court of Justice

In its recent Advisory Opinion, the International Court of Justice held that Israel’s policies aimed at the assertion of permanent control over the West Bank, manifested primarily in the settlement enterprise, amount to the annexation of large parts of the West Bank.  Israel’s annexationist policies, the Court concluded, violated the international prohibition against the use of force and its corollary principle of the non-acquisition of territory by force, as well as the right of the Palestinian people to self-determination.  The Court then proceeded to conclude that Israel’s violation of these international norms renders Israel’s continued presence in the Occupied Palestinian Territory (OPT) unlawful, giving rise to a duty of Israel to terminate such presence “as rapidly as possible.” Rejecting this analysis, Judges Tomka, Abraham, and Aurescu pointed to “a missing link” in the reasoning of the Court, maintaining that “we do not see how we can go from the finding that the annexation policy pursued by the occupying Power is illegal to the assertion that the occupation itself is illegal.”

I will assume, as did several of the Judges, that the Court’s determination that the continued presence of Israel in the West Bank is unlawful is tantamount to a determination that the Israeli occupation of that territory is illegal. As this determination was not premised on a finding that the occupation was unlawfully born, I will proceed from the assumption that the Israeli occupation initially resulted from the lawful use of force by Israel in self-defense.

Attempting to bridge the gap between the illegality of the annexation and the illegality of the occupation, several of the Judges concurring with the Opinion asserted that Israel’s annexation policies render the occupation a violation of the international prohibition against the use of force. I argue that the Court’s determination that the continued presence of Israel in the West Bank is unlawful finds no basis in the prohibition against the use of force. Moreover, the Court’s determination circumvents the Law of State Responsibility.

But first a word on the significance of the concept of illegal occupation. The illegality of an occupation eliminates the distinction between legitimate and illegitimate interests of the occupier. A policy aimed at the annexation of an occupied territory clearly advances the latter. But circumstances underlying a lawful use of force in self-defense resulting in an occupation typically give rise also to legitimate security interests that an occupier may promote by maintaining the occupation and negotiating the terms of its termination. An occupation becoming illegal renders such interests legally immaterial. Illegality of the occupation spells a duty of the occupier to withdraw from the occupied territory unconditionally and “as rapidly as possible” (Advisory Opinion, para. 261, 267), regardless of grave risks to its national security, which may result from such withdrawal.  

The International Prohibition Against the Use of Force

Several of the Judges took the view that the continued Israeli occupation of the West Bank amounted to a violation by Israel of the prohibition against the use of force.¹⁾ According to this view, the legality of the use of force that is inherent in a belligerent occupation is governed by jus ad bellum, which consists in the international prohibition against the use of force and its exceptions under the UN Charter. In the absence of Security Council authorization, jus ad bellum allows a state to occupy foreign territory only as an extension of the self-defense exception to the prohibition against the use of force.  The boundaries of this exception are delineated by the requirements of necessity and proportionality. An occupation that exceeds these boundaries can no longer be justified under the self-defense exception and is therefore illegal under the prohibition against the use of force.

Addressing the scope of the self-defense license for occupation, Judge Yusuf noted, “the self-defence rationale cannot be invoked against a potential or future threat that might emanate from the occupied territory.”  Judge Charlesworth took a similar position.  This view seems inconsistent with UN Security Council Resolution 242, which ties a withdrawal of Israel from occupied territories to the “establishment of a just and lasting peace in the Middle East.”  Judges Nolte and Cleveland offered a broader construction of the self-defense exception, allowing the occupier “to ensure that remaining relevant threats warranting the ongoing use of force in self-defence are not revived; to negotiate, in good faith, an arrangement laying down the conditions for a complete withdrawal in exchange for security guarantees.”  They noted, however, that the self-defense justification for the occupation is lost when the occupation “is abused for the purpose of annexation and suppression of the right to self-determination.”  The abovementioned Judges agreed that by becoming a vehicle for promoting annexation the Israeli occupation exceeded the self-defense exception and thereby became an unlawful use of force.    

According to this approach, the license granted to an occupier under jus ad bellum to advance legitimate security interests by maintaining the occupation depends on the occupier not exploiting the occupation to also advance illegitimate interests that concern annexation.  This approach seems inconsistent with the application of jus ad bellum to situations that do not involve occupation.  Consider the case of a State that has lawfully resorted to war having sustained an armed attack.  In the course of the war, the attacked State pursues military operations aimed at promoting interests that are alien to the law of self-defense and thereby exceeds the necessity boundary of the right to self-defense. Such conduct amounts to the violation of the prohibition against the use of force by the attacked State, which would generate legal consequences under the Law of State Responsibility. But this violation does not give rise to a duty of the attacked State to cease promoting the lawful ends of self-defense through the use of force. The right to self-defense does not become void and the legitimate interests associated with it do not become legally immaterial only because the attacked state advanced illegitimate ends as well.

There is no reason to assume that the right to self-defense lends itself to forfeiture more readily under circumstances of occupation than in other situations governed by jus ad bellum. Hence, jus ad bellum does not deprive an occupier that used a lawfully created occupation to advance both legitimate interests (security) and illegitimate interests (annexation) of the right to self-defense as grounds for promoting the former. International law responds to the use of an occupation as a platform for annexation through the application of the Law of State Responsibility, not through a construction of the right to self-defense that equates exceeding the boundaries of this right with forfeiting it. Annexationist policies, consisting of the occupier’s refusal to negotiate in good faith the termination of the occupation and of actions on the ground aimed at perpetuating the occupation, violate the prohibition on the use of force, and the consequences of such violation under the Law of State Responsibility are discussed below.

The assertion that jus ad bellum may prohibit lawfully created occupation also stands in tension with the definition of “acts of aggression” adopted in UN General Assembly Resolution 3314 (“Resolution 3314”) and subsequently affirmed in the Rome Statute of the International Criminal Court (Art. 8bis). “Acts of aggression” do not amount, in themselves, to the “crime of aggression.”²⁾ The definition of “acts of aggression” is closely linked to the prohibition against the use of force in international law.³⁾ Resolution 3314 and the Rome Statute list among the acts that qualify as “acts of aggression” the “invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof.”⁴⁾ This provision includes within the category of “acts of aggression” any annexation of occupied territory regardless of whether or not the occupation was born through an unlawful use of force. The characterization of the occupation itself as an act of aggression appears to be restricted, however, to occupation born through an unlawful use of force (“resulting from … invasion or attack”). Characterizing a lawfully created occupation as an act of aggression because of attempts by the occupier to assert permanent control over the occupied territory would typically be linked to the duration of the occupation. Yet the duration of the occupation was considered immaterial for the purpose of characterizing an occupation as an act of aggression (“… however temporary”), which suggests that such characterization depends only on the circumstances underlying the formation of the occupation.

Resolution 3314 and the Rome Statute extend the category of “acts of aggression” also to “[t]he use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.”⁵⁾ This provision does not refer to lawfully created occupation either. Rather, it concerns, among others, occupation created by illegal use of force consisting of the refusal on the part of foreign armed forces to withdraw from territory once the invitation extended to them by the sovereign has expired.

The Law of State Responsibility

The leap from illegal annexation to Illegal occupation circumvents the Law of State Responsibility, which is the body of secondary norms of international law that determine the consequences of the breach of primary international norms. Having concluded that Israel’s annexation of the West Bank violated the prohibition against the use of force and the right of the Palestinian people to self-determination, the Court did not directly proceed to examine whether the legal consequences of these violations give rise under the Law of State Responsibility to a duty of Israel to withdraw from the occupied territory. The reason for the Court’s rejection of a straightforward application of secondary norms to the violation of primary norms appears to be that such analysis would not accommodate a duty of Israel to terminate the occupation.⁶⁾

The Law of State Responsibility, codified by the International Law Commission (ILC) in its Draft Articles on the Responsibility of States for Internationally Wrongful Acts (‘Draft Articles’), requires a State to first cease its internationally wrongful conduct, if it is continuing (Draft Articles, Art. 30). The annexationist policies of Israel that violate the prohibition against the use of force and the right of the Palestinian people to self-determination consist of the refusal of the occupier to negotiate, in good faith, the end of occupation and of actions on the ground aimed at perpetuating the occupation, primarily manifested in the settlement enterprise. The obligation of cessation pertains to these unlawful forms of conduct and entails a duty of the occupier to negotiate in good faith a political solution that would end the occupation and to cease all actions that promote annexation (Joint Opinion of Judges Tomka, Abraham, and Aurescu, para. 30; Zemach, pp. 336-37). However, such duties are by no means tantamount to an obligation to withdraw from the occupied territory unconditionally.

The Law of State Responsibility also requires a State “to make full reparation for the injury caused by the internationally wrongful act” (Draft Articles, Art. 31). The primary form of reparation is restitution (Draft Articles, Art. 34). The ILC defined the obligation to make restitution as a duty “to re-establish the situation that existed before the wrongful act was committed” (Draft Articles, Art. 35). This definition does not support a duty of an occupier to withdraw from the occupied territory where the occupation has been established before the violation of international law by the occupier. Rather, restitution under the said circumstances concerns the re-establishing of the status quo ante that existed during the state of occupation and before the wrongful act. Hence, an attempt on the part of an occupier to annex the occupied territory, a conduct that follows the establishment of occupation, does not result in a duty of the occupier to end the occupation, although restitution would require the occupier to eliminate the consequences of its annexationist policies (e.g., a duty to remove settlements).  Note that the ILC has rejected a wider definition of restitution, defining it as “the establishment or re-establishment of the situation that would have existed if the wrongful act had not been committed” (Draft Articles, p. 96). The ILC reasoned that this wider definition would require engaging in an undesirable “hypothetical inquiry into what the situation would have been if the wrongful act had not been committed” (Draft Articles, p. 96).

To be sure, the distinction between a duty of the occupier to withdraw from the occupied territory and its duty to negotiate, in good faith, such withdrawal would be an empty one if it were evident that the occupier could secure its legitimate interests through good-faith negotiations that it nevertheless refuses to hold. However, this is not the situation regarding the security threats faced by Israel and the range of security guarantees that Israel may consequently insist upon as conditions for ending the occupation.

Conclusion

The Advisory Opinion does not explain how the unlawfulness of Israel’s annexation policies gives rise to the illegality of the occupation itself. Several of the Judges stated, however, that such policies render the occupation a violation of the prohibition against the use of force. I have argued that the assertion that the occupation of the West Bank has become illegal finds basis neither in the prohibition against the use of force nor in the Law of State Responsibility that determines the consequences of Israel’s unlawful annexation policies.