Limiting ‘Security’ as a Justification in the ICJ’s Advisory Opinion

Security as both a legal and political concept allows the limitation and sometimes even derogation from legal rules; these departures are not absolute and have parameters. Yet, States often invoke security to justify disproportionate and outright illegal acts, which is aided by the fact that the precise contours of what is considered a legitimate security concern or threat is not clearly defined. Israel has often attempted to justify the measures it takes against Palestinians in the OPT as due to ‘security’ considerations. In the Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (“AdvOp”), some States that submitted written statements to the ICJ, including Israel itself, cited Israel’s security concerns as a matter that the Court needed to take seriously and that may have justified Israel’s occupation per se as well as its policies and practices therein. While the Court was not convinced by this argument – far from it, declaring Israel’s occupation of the OPT illegal, and not simply the way it has conducted its occupation – it did not expand greatly on the issue of security, as Israel did not provide a comprehensive submission. That said, the Separate and Dissenting opinions delved into some of the security arguments.

This short article will examine where the Court rejected and/or limited some of these security justifications, making at least two important points: first, that security concerns, no matter how legitimate, could not justify annexation (manifestly illegal) nor an open-ended occupation (implicitly illegal). In fact, the Court affirmed that, more broadly, Israel could not invoke security considerations to override legal principles (AdvOp, para. 254). Second, Israel could not claim to be protecting security interests when those interests exist due to illegality to begin with, such as settlements and settlers.

Security in International Law

The United Nations is committed to the maintenance of ‘international peace and security’. The latter – ‘security’ – more generally enables States to act in otherwise prohibited ways. Article 2(4) of the UN Charter prohibits the threat or use of force, but Article 51 permits the use of force in self-defense in case of an armed attack. Derogations in human rights law can be invoked during public emergencies “threatening the life of the nation” (Article 4, ICCPR), subject to certain limitations. Article 27 of the Fourth Geneva Convention ensures that protected persons are to be respected and treated humanely, yet “the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” Article 5 similarly states that if a person is “definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.” Article 64 similarly allows the Occupying Power to “subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to … ensure the security of the Occupying Power.” None of these exceptions are absolute and in general must be both necessary and proportional. But who gets to decide what is a legitimate security concern to begin with? And what is the status of these principles in situations of alien occupation and colonial domination where the populations are fighting for their right to self-determination?

The ICJ has dealt with arguments predicated upon security justifications on a case-by-case basis. In the Nuclear Weapons Advisory Opinion, the Court stated that it could not decide whether “the use of nuclear weapons by a State in an extreme circumstance of self-defense in which its very survival would be at stake” would be contrary to international law as it stood at the time (Nuclear Weapons case, 1996, para. 97). Indeed, a classic and agreed upon security issue in international law is the threat of an external armed attack, though it is not limited to that. In the Nicaragua case , the ICJ stated that “the concept of essential security interests certainly extends beyond the concept of an armed attack” (Judgment, 1986, para. 224). It did not elaborate extensively on what security interests covered exactly, merely stating that it did not consider that the mining of Nicaraguan ports, and the direct attacks on ports and oil installations, were “necessary” to protect the essential security interests of the United States (para. 224). In the Oil Platforms case, the United States argued that, inter alia, the movement of maritime commerce, its naval vessels in the Gulf, and its citizens’ financial losses were “essential security interests” (Judgment, 2003, para. 49). The Court did not comment on whether those qualified as legitimate security concerns, focusing instead on a specific attack that the US had identified. Since the United States had resorted to force, the ICJ stated that they could only do so if they were acting in self-defense to an armed attack by Iran, which was not the case. Thus, while the ICJ had not come to any conclusion on the use of nuclear weapons in 1996, seemingly leaving the door open for States to use such deadly and indiscriminate force in ‘extreme’ situations, when it came to security justifications for actual acts committed, the Court has used the tests of necessity and proportionality as a limitation to the use of force.

Rejecting the Security Argument: the ICJ in the Advisory Opinion

In Israel’s written submission, it complained that the questions asked by the General Assembly to the Court did not take into account “acts that continue to endanger Israel’s civilians and national security on a daily basis” and that “they fail to recognize Israel’s right and duty to protect its citizens, as well as the well-established principle… that any resolution of the Israeli-Palestinian conflict must effectively address Israel’s legitimate security concerns.” Other States, such as Fiji and Zambia, also referenced security concerns, without identifying how or whether Israel’s occupation and practices prevented these security threats from materializing. The presumption is that these security concerns justified the actions that Israel was taking. Israel’s own Supreme Court ruled in 1979 that civilian settlements could serve legitimate security considerations, and in 1993 that the question of settlements was an inherently political issue and therefore non-justiciable.

The Joint opinion by Judges Aurescu, Abraham, and Tomka expanded upon the security aspect. They stated that Israel’s policies in the OPT were “not a reason to ignore the legitimate concerns of this State regarding its security” (para. 11). The real question for these judges was whether Israel’s full withdrawal would expose it to security threats (para. 36), in effect conditioning the end of the occupation upon mitigating these potential security risks. They then identified Hamas and its, in their words, denial of “the very legitimacy of the existence of the State of Israel” and competition with the Palestinian Authority over power as such threats, concluding that “the persistence of these threats could justify maintaining a certain degree of control on the occupied territory, until sufficient security guarantees, which are currently lacking, are provided” (para. 37). It is curious that they mentioned Hamas’ denial of the legitimacy of Israel as a security threat, and not, for example, its actions. Similarly, though coming to a wholly different conclusion, Judges Nolte and Cleveland also mentioned that “it must not be forgotten that the legitimacy of Israel’s existence as a State is called into question by a number of States and non-State actors, some of which are located in its vicinity” (Joint declaration, para. 5) in the context of Israel’s security concerns. In Judge Cleveland’s Separate opinion, she emphasized again, “… the refusal of other States to recognize the legitimate existence of the State of Israel – including a number of the States participating in these advisory proceedings – also violate” Israel’s rights, including the right to security (para. 2). These Judges identified a more abstract security issue (non-recognition), but the relationship between this security issue and Israel’s actions remains unclear. It should also be mentioned that the Israeli Knesset voted by an overwhelming majority against the establishment of a Palestinian State, first in February of 2024 (regarding the unilateral establishment of a State) and then later in July of the same year (regarding the establishment of a State in the context of a negotiated settlement).

The ICJ for its part examined different practices and policies and, where relevant, briefly addressed the argument of Israel’s security in its Advisory Opinion in relation to those practices, including the issues of prolonged occupation, settlements, annexation, discriminatory legislation and measures, and self-determination. Regarding Israel’s exercise of sovereign power over the OPT, the Court stated that Israel’s security concerns cannot “override the principle of the prohibition of the acquisition of territory by force” (para. 254). In terms of the Oslo Accords permitting Israel to be in the OPT to meet its security needs, the Court responded that “these Accords do not permit Israel to annex parts of the Occupied Palestinian Territory in order to meet its security needs. Nor do they authorize Israel to maintain a permanent presence in the Occupied Palestinian Territory for such security needs” (para. 263). The Advisory Opinion thus helps to blunt State arguments predicated upon security that use exceptions found in international law more broadly or in international agreements. Indeed, Judge Charlesworth emphasized that “the existence of ‘security concerns’ is not a legal ground for the maintenance of an occupation, nor indeed for its establishment…” (Declaration, para. 16). The Opinion unequivocally stated that, “the existence of the Palestinian people’s right to self-determination cannot be subject to conditions on the part of the occupying Power, in view of its character as an inalienable right” (para. 257).

Moreover, the Court emphasized that the exceptional measures provided for in Article 64 of the Fourth Geneva Convention “cannot be invoked as a ground for regulation in these territories” (para. 139) since the very act of transferring its civilian population to the West Bank and East Jerusalem violates the Geneva Conventions. The Court reiterated this stating that

“[to] the extent that such concerns pertain to the security of the settlers and the settlements, it is the Court’s view that the protection of the settlers and settlements, the presence of which in the Occupied Palestinian Territory is contrary to international law, cannot be invoked as a ground to justify measures that treat Palestinians differently.” (para. 205).

The illegal actions of Israel – transfer of its civilian population to occupied territory – cannot then be used as the foundation for relying on exceptions based on security arguments. Indeed, as Judge Tladi explained, “security interests as such, no matter how serious or legitimate, cannot override rules of international law… Indeed, save where called for by a specific rule, security concerns cannot even serve as a balance against rules of international law and certainly not against peremptory norms” (Declaration, para. 44).

Judge Charlesworth, in particular, pointed out perhaps one of the most important aspects regarding the relationship between security and occupied territory, stating:

“… it is worth recalling that, under customary international law, the population in the occupied territory does not owe allegiance to the Occupying Power, and that it is not precluded from using force in accordance with international law to resist the occupation. Therefore, the fact that the population in the Occupied Palestinian Territory resorts to force to resist the occupation does not in itself justify the maintenance by Israel of its occupation… (para. 23, emphasis added).”

While the Advisory Opinion itself does not make these points explicitly, it emphasizes the inalienable rights of the Palestinian people and their right to self-determination. The Declaration on Friendly Relations (GA Res. 2625 of 1970), which is seen as an authoritative statement of customary international law (see Nicaragua judgment, paras. 188, 191), recognizes the right to resist against forcible action that deprive people of their right to self-determination, in accordance with the Charter of the UN.

Conclusion

Security is frequently used by States to act exceptionally. While these exceptions exist in the law and may be warranted at times, security has also frequently been used to justify conquest and occupation.¹⁾ The ICJ’s Advisory Opinion makes clear that security concerns, no matter how real, could not be used to deprive the Palestinian people of their right to self-determination, and certainly could not be used to protect manifest illegality; in particular, the settlements.