Third State obligations in the ICJ Advisory Opinion

On 2 September 2024, the United Kingdom Foreign Secretary David Lammy faced a series of questions in Parliament on the UK’s arms and surveillance support to Israel through its military bases in Cyprus. Referring to the recent decisions by the International Court of Justice (ICJ or Court), the Member of Parliament asked the Foreign Secretary to clarify “what role, legally or otherwise, Britain has played in overflying Gaza with surveillance aircrafts, and explain the use of RAF Akrotiri as a staging post for aircrafts going to Israel, which many people believe are carrying weapons to be used to bomb Gaza.” Foreign Secretary Lammy skirted the issue by commenting that he was “very comfortable with the support that we give to Israel” and that he “will not comment on operational issues.” The exchange in Parliament came on the same day that the UK government announced its immediate suspension of around thirty arms export licenses to Israel. That decision followed a government assessment which concluded that a clear risk exists that military exports to Israel might be used in violations of international humanitarian law (IHL). However, the decision pledged to keep in place the rest of the 350 UK licenses to Israel and expressly excluded from the decision the supply of components for the F-35 joint strike fighter programme, a move mirroring the evasive policy of the Dutch government since a landmark decision by the Hague Court of Appeal in February ordered a halt on F-35 aircraft deliveries to Israel. This contribution considers how the third State obligations set out in the ICJ Advisory Opinion of 19 July 2024 bear on the United Kingdom’s continued arms and intelligence assistance to Israel through its military bases in Cyprus.

Cyprus as a British launchpad and international law

The UK’s arms and intelligence support to Israel takes place primarily through its military bases in Cyprus. These bases stand on land over which the UK retained control in the era of decolonization. Article 1 of the Treaty of Establishment of the Republic of Cyprus, signed on 16 August 1960, delineated the land borders of the newly founded Republic while simultaneously establishing two British Sovereign Base Areas (SBAs):

“The territory of the Republic of Cyprus shall comprise the Island of Cyprus, together with the islands lying off its coast, with the exception of the two areas defined in Annex A to this Treaty, which areas shall remain under the sovereignty of the United Kingdom. These areas are in this Treaty and its Annexes referred to as the Akrotiri Sovereign Base Area and the Dhekelia Sovereign Base Area.”

The bases on Akrotiri and Dhekelia were picked due to their strategic location and military establishments. Akrotiri was and remains an airbase of the British Royal Air Force (RAF), about 40 minutes flying time from Tel Aviv. The Ayios Nikolaos station in Dhekelia was established in 1947 with the transfer of British personnel and equipment from Palestine, and now houses the largest intelligence gathering site of the British Government Communications Headquarters (GCHQ) outside the UK, as well as personnel of its U.S. counterpart, the National Security Agency (NSA), the latter in violation of the agreement between the British and Cypriot governments.¹⁾

Under Article 2 of the Treaty of Establishment, the Republic of Cyprus is obliged to cooperate with the UK to ensure the security and operation of the SBAs and the “full enjoyment by the United Kingdom of the rights conferred by this Treaty.” Beyond the two military bases over which the UK claims sovereignty, Annex B provides a list of retained sites under the unimpeded administration of the UK with a “general right of use and control” (Annex B, Part II, S.1.4). These retained sites, which include the RAF satellite and radar centres in Troodos mountain (Schedule A, S.1. A.2 and A.3), are legally within the territory of the Republic of Cyprus but entirely outside its control, in a unique colonial legal situation that perhaps only resembles the U.S. base in Guantanamo Bay. In addition, the UK retained several rights of access and use over the whole island, most notably, for the purposes of the Gaza war, the right of British military aircrafts “to fly in the airspace over the territory of the Republic of Cyprus without restriction” (Annex B, Part II, S.4.2).

The legal status and obligations pertaining to the SBAs, which cover three percent of the island, equaling 99 square miles, is widely debated.²⁾ The parliament of the Republic of Cyprus adopted a resolution describing the Treaty of Establishment and the SBAs as “a colonial remnant” which defies international law and UN resolutions, most importantly on the right to self-determination.³⁾ The resolution also opposed the use of the SBAs for actions against other States. However, despite political and popular protests, the UK has continued to use Cyprus as a launchpad for attacks in the region, including in Syria and Yemen. The UK government disclosed the departure of 32 military aircrafts from the RAF airbase in Akrotiri to Israel from October to December last year. It has been reported that these flights, along with flights of U.S. C-295 military transport planes from Akrotiri, have been transporting arms to Israel. According to Haaretz, by the end of October 2023, German, Dutch, and Canadian military planes and personnel landed in Akrotiri ready to be deployed. At least 18 U.S. C-295 and CN-235 aircrafts, believed to be used by special forces, flew from Akrotiri to Tel Aviv since last October. According to senior British sources, until February 2024, Israeli F-35 planes used the British airbase in Akrotiri. By January 2024, RAF Shadow R1 planes, used for intelligence, surveillance, target acquisition and reconnaissance, had flown more than 50 missions over Gaza, one recently recorded mission coinciding with the massacre in the al-Mawasi ‘safe zone’ on 10 September 2024.

Application of the ICJ Advisory Opinion to the war in Gaza

The Advisory Opinion of 19 July 2024 is an authoritative judicial pronouncement on the legal obligations that arise from the UN Charter, the decisions of the Security Council, international human rights law, international humanitarian law, and the law of State responsibility as it relates to occupied Palestine. The obligations laid out in these bodies of law, including the ICCPR, ICESCR, CERD, and the Fourth Geneva Convention, are binding on both the United Kingdom and the Republic of Cyprus based on their accession to these conventions and as a matter of customary international law.

An important preliminary question is how the third State obligations set out in the Advisory Opinion relate to the ongoing war in Gaza. The Opinion notes that “the policies and practices contemplated by the request of the General Assembly do not include conduct by Israel in the Gaza Strip in response to the attack carried out against it by Hamas and other armed groups on 7 October 2023” (para. 81), but the Court goes on to draw conclusions that are pertinent to the current situation in Gaza. Notably, the Court finds that Israel continued to exercise control over key elements of authority in Gaza since its withdrawal in 2005, and that “[t]his is even more so since 7 October 2023” (para. 93). The ICJ concludes that Israel continues to be bound by obligations under the law of occupation in Gaza commensurate with the degree of its effective control over Gaza (para. 94), a degree of control that has markedly increased since October 2023. Judge Iwasawa writes in his separate opinion that the Court subscribes here to a functional approach to the law of occupation, whereby the focus is not on the status of the territory as such, but rather on whether a State continues to be bound by certain obligations under the law of occupation (more on the functional approach in the Advisory Opinion here). The Court’s conclusion about Gaza is to be read in light of its emphasis that the West Bank, East Jerusalem, and Gaza are “a single territorial unit, the unity, contiguity and integrity of which are to be preserved and respected” (para. 78). This emphasis on Palestine’s territorial unity leads the Court to conclude that the illegality of Israel’s presence relates to the entirety of the Palestinian territory, including Gaza (para. 262).

That the Court’s findings on the illegality of the occupation and the subsequent legal consequences, for the occupier as well as third States, also apply to the current situation in Gaza, is evidenced by the disagreement it drew from four judges. In her separate opinion, Judge Cleveland argues that, in her view, the Court “does not substantiate its conclusion that the unlawfulness of Israel’s presence, and the concomitant duty to withdraw, apply to the current situation in the Gaza Strip.” Judge Cleveland’s main disagreement is that, though Gaza is included in the considerations on Israeli violations of the Palestinian right to self-determination (paras. 239-241), Gaza is absent from the findings on Israel’s violations of the prohibition of acquiring territory through the use of force. In Judge Cleveland’s view, the Court did not explain how a violation of the right to self-determination, in the absence of a violation of the prohibition of acquiring territory by force, rendered Israel’s presence unlawful. Therefore, Judge Cleveland, and likewise Judges Tomka, Abraham and Aurescu, consider that the Court should have excluded Gaza from its conclusions on the illegality of Israel’s presence. Judges Tomka, Abraham and Aurescu further add that it is “appropriately that the Opinion refrains from taking any position on the events that have occurred in Gaza after 7 October 2023.”

However, it is not entirely accurate that the Opinion does not take any position on the events in Gaza since October 2023. As noted above, the Court states, following its consideration that “based on the information before it” Israel continued to exercise “key elements of authority over the Gaza Strip” following its withdrawal in 2005, that “[t]his is even more so since 7 October 2023” (para. 93). This statement is of no negligible import. If it is indeed correct, as Judge Iwasawa writes and several commentators have noted, that the Court subscribes to a functional approach to the law of occupation in the Opinion, whereby a State’s obligations under the law of occupation is commensurate with the degree of its effective control over the occupied territory, then the Court’s words suggest that it considers Israel’s obligations under the law of occupation in Gaza have intensified under the current circumstances, given the vastly greater degree of the occupier’s effective control over Gaza since October of last year. A reasonable interpretation of the Court’s words suggests that the duty to withdraw from Gaza, the urgency of the withdrawal, and the obligations of third States to abstain from delaying that withdrawal through aid and assistance to the occupier, have all intensified under the current circumstances in Gaza.

The Advisory Opinion specifies nine third State obligations (for an overview of obligations for third States in the Opinion, see here), several of which are directly relevant to the role of military bases in Cyprus:

• Firstly, the ICJ provides that all States must co-operate with the modalities required by the UN General Assembly and Security Council to ensure an end to the occupation. The General Assembly Resolution passed on 18 September 2024 established those modalities, reiterating the obligations of third States set out in the Advisory Opinion. The Resolution calls upon all States to, among other measures, “take steps towards ceasing the importation of any products originating in the Israeli settlements, as well as the provision or transfer of arms, munitions and related equipment to Israel, the occupying Power, in all cases where there are reasonable grounds to suspect that they may be used in the Occupied Palestinian Territory.”
• Secondly, the ICJ observes that all States are not to render aid or assistance in maintaining the situation created by Israel’s illegal presence. Arms and intelligence assistance to the occupation army by third States play a vital role in maintaining the occupation. Much effort has been put by advocacy groups in the UK, as well as other countries, including the Netherlands, France, Belgium, Denmark, Germany and the United States, into taking legal action to halt arms supplies to the occupier with a clear risk to commit crimes against civilians in Gaza. An underreported and under-litigated element of assistance by third States concerns their vital intelligence support to the Israeli forces. For example, analyses by flight tracking experts suggests the possible involvement of UK surveillance drones flying over Gaza on the night of the al-Mawasi massacre in September 2024.
• Thirdly, all States are “to ensure that any impediment resulting from the illegal presence of Israel in the Occupied Palestinian Territory to the exercise of the Palestinian people of its right to self-determination is brought to an end.” The impediments currently experienced by the people of Gaza in the exercise of their right to self-determination are corporal – death, hunger, disease and climate all ravaging the population. Activities of the UK and Cyprus that maintain and aggravate these conditions must be brought to an end.
• Fourthly, the ICJ states that “all the States parties to the Fourth Geneva Convention have the obligation (…) to ensure compliance by Israel with international humanitarian law as embodied in that Convention.” The UK government, by its own assessment, considers that a clear risk exists that military exports to Israel might be used in violations of IHL, giving the government reason to suspend export licenses. This risk assessment should bear on all arms and surveillance assistance to the occupier whereby compliance with IHL cannot be ensured.

Concluding remarks

Litigation efforts by advocacy groups in the UK and other countries, including the Netherlands, France, Belgium, Denmark, Germany and the United States, have understandably focused on halting arms transfers to Israel. The transfer of these shipments of death bear an immediate connection to the conditions on the ground, particularly visible in the litigation to halt the supply of components for the F-35 jet, used by Israel to drop 2000lb bombs on densely populated areas in Gaza and now Lebanon. The UK government excluded F-35 components from its suspension decision on 2 September, stating the importance of the fighter jet programme for maintaining global security. The use of F-35 jets by Israel in the attack on Beirut on 27 September 2024, severely escalating and widening the conflict and shifting the rules of engagement, compels the foreign offices of the UK and other participating countries to rethink whether the F-35 programme in its current structure furthers global security.

Surveillance assistance by third States to the occupation receives relatively less attention, even though the UK, through its largest overseas intelligence office in the world in Dhekelia, appears to be a major intelligence partner to Israel. The UK’s use of outposts in Cyprus to conduct activities that may aid Israeli war crimes carries serious national security risks for Cyprus. The passive and active participation by the Cypriot government, refusing to comment on the activities while continuing to conduct joint drills with Israel’s air force, drew threats from the leader of Hezbollah to make Cyprus “part of the war.” The UK military meanwhile told Parliament that there is no “formal requirement” to inform the Cypriot government of its military and intelligence actions from the island, while an SBA spokesperson stated that “any activity taking place on the British bases is always shared with the [Cypriot] government.” These political gymnastics have sparked mass popular protests in Cyprus against the British bases, demanding an end to the supply of arms and intelligence to Israel from Cyprus. In this regard it is worth reiterating that multilateral arrangements, including the provision that obliges Cyprus to allow British military aircrafts to fly in the airspace over its territory, do not release the Republic of Cyprus from the duty to comply with its obligations under international law.