The International Court of Justice’s (ICJ) Advisory Opinion on the Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem (OPT) is a seismic change, both legally and politically. The Court makes various doctrinal strides: It definitively declares that the right to self-determination is a peremptory norm; it recognizes the concept of de facto annexation; it notes with strikingly brevity that “occupation is a temporary situation to respond to military necessity” (para. 105), and that the maintenance of an occupation is itself measured under the laws on the use of force. The Advisory Opinion states that the right to self-determination also governs the legality of a State’s presence, as occupant, in foreign territory (para 261). Finally, the Advisory Opinion holds that a State’s presence as an occupying power in a territory is capable of being unlawful.
Applying the doctrinal framework to Israel’s policies and practices in the West Bank, the Court found that Israel’s assertion of sovereignty over, and annexation of, certain parts of the OPT, de jure and de facto, violates the prohibition on the acquisition of territory by force,(as a corollary of the prohibition on the use of force (para. 179). It further found that Israel’s policies and practices breach the right of the Palestinian people to self-determination.
According to the Court, the breach of these norms directly impacts the legality of Israel’s continued presence, as an occupying Power, in the OPT (paras. 251–257). Specifically, the Court concluded that “Israel’s continued presence in the Occupied Palestinian Territory is unlawful” (para. 285), wording that is largely regarded in academic circles as an oblique manner of saying that the occupation itself is illegal.
This assertion calls for justification, since, as argued by Ariel Zemach, the law on State responsibility requires Israel to cease the breach, that is to revert to a non-annexationary occupation, and that the purported legal consequence of the breach (sovereignty) not be recognized by States; but the law on State responsibility does not provide that illegal policies under a regime render the regime itself illegal.
This assertion is, indeed, the issue on which the judges of the Court were in least agreement. Three of them, Judges Peter Tomka, Ronny Abraham, and Bogdan Aurescu, joined Judge Sebutinde in the dissent from the Advisory Opinion operative clause’s statement, that Israel’s continued presence in the OPT is unlawful. Other judges attached separate opinions and declarations that detail their reservations.
In this article, I examine the treatment of the asserted link between the violation of the two peremptory norms and the illegality of the occupation, as it emerges from the main Opinion and from the separate opinions and declarations of the different judges.
The Lack of Reasoning in the Advisory Opinion for the Link Between the Illegality of Israel’s Policies and Practices and the Illegality of the Occupation
The majority Opinion links the violation of the two peremptory norms (the prohibition on acquisition of territory by force and the obligation to respect the right to self-determination) to Israel’s status as occupying power (para. 261) by stating that:
[t]he 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.
The core of the issue for the Court seems to be the “sustained abuse” of Israel of its powers. However, abuse of power does not ipso facto divest of status (or render it illegal, whatever that may mean), and the Court did not elaborate on why that would be the case here.
Some clue may be found in the Court’s account of the proceedings before it, when it noted that some participants had likened the matter to the Namibia Advisory Opinion, where South Africa’s continued presence became illegal following its abuse of its powers as mandatory Power by violating applicable rules and principles of international law (para 260). However, an analogy from the Namibia Advisory Opinion to characterize the presence of a State as an occupying power illegal is problematic, for a number of reasons.
First, the “presence” that was illegal under the Namibia Advisory Opinion was South Africa’s administration of the territory as mandatory Power. The illegality stemmed from South Africa’s lack of title after the General Assembly had revoked its mandate. South Africa’s status was labeled by the Court both an “illegal presence” and an “occupation,” but not an “illegal occupation” or even an “illegal presence, as occupying power.” The Court did not engage with the status of the occupation as such, and probably did not envisage it as susceptible of being lawful or otherwise – which is precisely what the OPT Advisory Opinion is concerned with. To draw on the illegality of purported status deriving from title (mandate) to an illegality of status deriving from facts (belligerent occupation) is a leap.
Furthermore, South Africa’s abuse of its powers as mandatory Power was the political motivation for the process which rendered its presence in Namibia illegal. Legally, its loss of title was the consequence of the General Assembly’s decision to revoke the mandate. The power of the General Assembly to adopt such a decision was envisaged already in 1918, according to the Namibia Advisory “[i]n case of any flagrant and prolonged abuse” (emphasis added) by the mandatory Power of its authority over (para 100). Thus, while politically the Namibia case and the OPT case are similar in that the trustee (if an occupant can be called that) had abused its power, legally they differ, in that the loss of status was the result of a political decision and not of law. In short, the Namibia Advisory Opinion does not provide a clear doctrinal basis for the direct link between violation of the two peremptory norms and the status of the occupation itself.
The apparent leap in the Advisory Opinion’s legal reasoning was criticized by the joint opinion of Judges Tomka, Abraham, and Aurescu, who dissented from the operative clause on this issue. They noted that the majority view involved a non sequitur – from the illegality of annexation to the illegality of the occupation itself (para. 22). They held that the legality of the occupation is determined under the laws on the use of force (annexation not falling, in their view, under this branch of law but constituting a violation of the occupant’s obligations under the law of occupation), and that it cannot (nor should) be evaluated without an examination of Israel’s security concerns that may justify its continued presence in the territory (paras. 25, 36).
Other judges, while subscribing to the majority’s conclusion on the illegality of the occupation, appeared to share the dissatisfaction with the reasoning provided for it (or the absence of reasoning). Some of them offered their own interpretations of the issue.
Individual Judges’ Reasoning on the Link Between the Illegality of Israel’s Policies and Practices and the Illegality of the Occupation
Judges Georg Nolte and Sarah Cleveland’s joint declaration and Judge Hilary Charlesworth’s separate opinion appear to share the three dissenting judges’ view that the role of security concerns must be considered for characterizing the occupation as lawful or otherwise. However, unlike the three dissenting judges who consider the absence of factual information on the matter to be an obstacle to such characterization, Judges Nolte, Cleveland, and Charlesworth rely on the finding of annexation to render the facts moot. In their view, claims of self-defense and annexation categorically cannot co-exist. Judges Nolte and Cleveland explain that the policy of annexation effectively vitiates any credible claim to self-defense that Israel may have had for its maintenance of the occupation, thereby undermining the legitimacy of Israel’s presence even as occupant (Judges Nolte and Cleveland, para 8) (but see here for an analysis which suggests that the judges reject the possible co-existence of annexation and self defense as a matter of the facts in the specific instance). Judge Charlesworth shares this view, but also analyzed the facts underlying the annexation in terms of the requirements of necessity and proportionality required to proposition that Israel’s occupation is a permissible use of force in self-defense (para. 26).
Notably, the three judges reach their conclusion by relying specifically on the violation of the prohibition on annexation. In this, too, they share the view of Judges Tomka, Abraham, and Aurescu (para 26), that the violation of the right to self-determination does not alone render the occupation illegal. This view is implicit in the opinions of Judges Nolte (with Judge Cleveland) and Charlesworth, and explicit in that of Judge Cleveland (para 17 of her separate opinion). In contrast, President Nawaf Salam places the full weight of the illegality of Israel’s presence (and of the occupation) on Israel’s violation of the obligation to respect the Palestinian people’s right to self-determination. However, he dates Israel’s failure to respect the right back to 1948 (para 37), and considers that the Court’s reasoning should be supplemented by a reference to Israel’s obligations under General Assembly Resolution 181(II). He seems to regard Israel’s territory to be limited to the proposed Jewish State as envisaged under that resolution.
Finally, according to Judge Xue Hanqin, at issue is the link between policies and practices exercised by Israel on the one hand, and the legality of its continued presence in the territory on the other hand (para 7). She explains the link on the grounds that, “when certain acts are found internationally wrongful, in principle, they should not be permitted to continue to exist, which consequently may have a bearing on the lawfulness of the continued presence of Israel in the occupied territory.” While the first part of this statement is irreproachable, the second begs the issue, omitting to explain why not only the policies and practices should cease, but the legality of the maintenance of the occupation itself. Notably, unlike other judges, Judge Xue links the illegality directly to the impermissibility of the various policies and practices exercised by Israel, rather than to their cumulative effect of annexation and violation of the right to self-determination.
In conclusion, of the eleven judges that support the holding that Israel’s continued presence in the OPT, as an occupying power, is unlawful, six express views on the legal basis for this illegality that did not quite conform with the majority opinion. While some judges criticize the incomplete articulation of the reasoning on the illegality (e.g. Judge Charlesworth, paras 12–13; Judge Salam, para 37; Judge Dire Tladi, para 31), the divergence of views as to the precise violation leading to the illegality of the occupation and the manner in which this violation renders the occupation itself illegal suggests that the laconic wording of the Advisory Opinion was required in order to obtain the broad consensus in the conclusion.
One Giant Leap for Law, One Small Step for Reasoning
The Advisory Opinion marks an important development in international law. It is therefore disappointing that this development occurs ex cathedra and in a manner that reveals so much uncertainty within the Court as to the doctrinal basis of its innovation.
Moreover, the legal basis is not the only issue in the Advisory Opinion that remains elusive with respect to the illegality of the occupation. As I discuss elsewhere, the Court’s instruction that the illegality of the occupation generates an obligation for States “not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the Occupied Palestinian Territory” (para 285(7)) is also imponderable.
The Court’s findings that Israel is violating the prohibition on acquisition of territory by force and the right to self-determination were hardly a surprise to anyone familiar with the legal and political scene. However, the Court’s value for the progressive development of international law lies in its mandate and opportunity to provide solid and authoritative doctrinal frameworks to guide the U.N. and States in their operation and relations. The opportunity for such guidance is lost when rigorous legal analysis is sacrificed for the sake of consensus.