The Emergence of the Concept of “Illegal Occupation” in International Law
Yaël Ronen – Academic Centre for Science and Law and Minerva Center for Human Rights at the Hebrew University in Jerusalem, Israel
Historians may find the notion that occupation may be illegal – or legal, for that matter – counter-intuitive. After all, occupation is a factual situation. Legal consequences follow from that situation, namely the applicability of the law of occupation as well as other bodies of law; but occupation itself is a factual occurrence – the establishment of effective control over foreign territory – in the course of an armed conflict. The purpose of this article is to delineate the emergence of occupation as a normative concept in international discourse, namely as a phenomenon that can be labeled as legal or illegal.
In several instances since the second half of the twentieth century, international political bodies including the United Nations organs have labeled specific occupations iillegal, such as Portugal’s administration of Guinea-Bissau after 1973, Iraq’s occupation of Kuwait in 1990, Israel’s occupation of the Palestinian territories, and Russia’s occupation of Crimea. These designations referred primarily to the fact that these occupations were created through aggression. In a few cases, the labeling of an occupation as illegal followed the violation of the right to self-determination. In the 1970s, certain international instruments (eg Article 16 of the 1974 Charter of Economic Rights and Duties of States) linked occupation and colonialism, suggesting that, like colonialism, occupation is inherently illegal because it violates the right to self-determination. However, this deviation from the common understanding that occupation is not inherently illegal may have been an attempt by those drawing up the international instruments to characterise the Israeli occupations, but not necessarily all cases of occupation, as illegal. Indeed, the Israeli occupation has been the focal point not only of political interest, but also of more recent academic and now judicial debate relating to occupation as a normative phenomenon.
The academic discussion of the issue was sparked in 2005 by Ben Naftali, Gross, and Michaeli, who, following the construction of the separation barrier in the West Bank, proposed an analytical framework for evaluating the legality of an occupation and proceeded to apply it with respect to Israel’s occupation of the West Bank. They focused this framework on their understanding of the basic tenets of a regime of occupation: temporariness, lack of sovereignty, and trusteeship for the population. They argued that when an occupant repudiates any of these basic tenets, by rendering the regime non-temporary, acting as sovereign, or subjugating and dispossessing the population, the occupation itself becomes illegal.
A different strand in academic literature proposed that an occupation may become illegal due to the violation of the prohibition on the use of force, either when the occupation was first established or during its existence. This strand reflected the growing view that the law on the use of force continues to apply during armed conflict. I myself have argued that the doctrinal basis that may explain the international practice of labeling occupations illegal is that illegality of occupation, like the illegality of any territorial status, is grounded in the violation of peremptory norms, namely violation of fundamental principles of international law from which no derogation is permitted, when that violation relates to the status of territory.
These various strands were endorsed by the UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967 and by various scholars. Among the latter, Imseis characterized Israel’s occupation of the West Bank and Gaza Strip as a violation of three peremptory norms, namely the prohibition on annexation, the obligation to respect the right to self-determination, and the prohibition on apartheid. Hindi similarly attempted to offer a doctrinal basis for determining the illegality of an occupation. He proposed that the criterion is the serious breach of a peremptory norm.
In contrast to these views, Zemach considers that the notion of “illegal occupation” does not and should not extend to an occupation created in self-defense, even if that occupation is maintained in violation of the right to self-determination or the prohibition on annexation. Zemach argues that to label such an occupation “illegal” is incompatible with the law on state responsibility, according to which the remedy for the violation of the law is a cessation of the violation rather than a change in status of the occupation. He further argued that the consequence of illegality, namely an immediate and unconditional withdrawal, is problematic because it leaves no room to address legitimate security concerns to which the creation of the occupation responded.
Notwithstanding the doctrinal questions involved, both the academic and the political debates focus almost exclusively on the Israeli occupation. This is not surprising, given that this occupation is exceptional among more recent cases not only in that the occupant claims to apply the law of occupation, but also in being broadly (albeit far from universally) regarded as having been created through a lawful act of self-defense. In other instances of occupation created by violation of peremptory norms (such as, to draw on two contemporary examples, Morocco’s occupation of Western Sahara and Russia’s occupation of Crimea), the occupants deny their own status as occupying powers and purport to annex the territory. Both political and academic discourse in these cases is usually framed in terms of purported sovereignty rather than the status of the occupant or occupation. However, this has affected the development of the discourse. For example, Zemach’s argument received limited doctrinal response, since Israel’s security arguments were dismissed on the grounds that the specific policies and practices at issue violate absolute prohibitions that know no self-defense exceptions, or as disingenuous.
The International Court of Justice’s Advisory Opinion on the Occupied Palestinian Territory
In July 2024 the International Court of Justice (ICJ) handed down its Advisory Opinion on the Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem (OPT), a first judicial engagement with the law governing the legality of occupation, or, as the court had rephrased the question, “the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory”. Some judges and commentators maintain that this wording is substantively the same as asking whether the occupation is legal.
The Court’s central pronouncement on the notion of illegality with regard to occupation (para 251) is that
the rules and principles of general international law and of the Charter of the United Nations on the use of force in foreign territory (jus ad bellum) have to be distinguished from the rules and principles that apply to the conduct of the occupying Power under international humanitarian law (jus in bello) and international human rights law. 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 thus rejected the thesis that the status (that is, legality) of an occupation or the continued presence of the occupying power in the territory are governed by the laws of armed conflict (jus in bello). However, it held that the legality of the presence of the occupying Power in the territory is governed by the obligation to respect the right to self-determination and the prohibition on annexation (as a corrolary of the prohibition on the use of force). Moussa and Gross have nonetheless expressed doubts as to the sustainability of the distinction between the laws on the use of force and the laws of armed conflict, as controlling norms.
Specifically with respect to Israel’s occupation of the OPT (para 261) the Court held 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.
Both of the challenges raised by Zemach remain largely unanswered by the advisory opinion: first, how does the violation of norms in the course and manner of administration of the occupation render the presence of the occupant in the territory (or the occupation itself) illegal; and second, where do security considerations figure in the evaluation of the status of the occupant and the obligations that result from the illegality.
These omissions in the Court’s reasoning did not go unremarked. Judges Tomka, Abraham, and Aurescu voted against the operative parts of the Advisory Opinion in which the Court opined that Israel’s continued presence in the Occupied Territories is unlawful, despite agreeing that its policies and practices were violating the peremptory norms. Various other commentators (eg Shany and Cohen) have also engaged with the Advisory Opinion’s dismissal of security arguments.
The Court ostensibly laid out a principled approach to the evaluation of the legality of an occupant’s presence in the occupied territory. However, the fact that the notion of illegal occupation emerged and has been a matter of discussion exclusively in the context of Israel’s status in the OPT has undoubtedly affected the trajectory of the international debate on the subject. Moreover, the particulars of the violations attributed to Israel, and the fact that the Advisory Opinion by its nature concerns only that occupation, have obfuscated the need to provide a more solid doctrinal basis for determining that an occupation has become illegal in the course of its administration. Such a doctrine would need to characterise the governing norms (are these only the prohibition on annexation and the right to self-determination or other peremptory norms?); the basis for holding that the consequence of the violation of peremptory norms is not only an obligation of cessation of the violation, but the illegality of occupant’s very presence in the territory; and the appropriate role of military necessity, which the Court has declared to be the basis for an occupation, when an occupation is administered in violation of international law.
References
Orna Ben-Naftali, Aeyal M Gross and Keren Michaeli, ‘Illegal Occupation: Framing the Occupied Palestinian Territory’ (2005) 23, Berkeley Journal of International Law, pp, 551-614.
Eyal Benvenisti, ‘The Origins of the Concept of Belligerent Occupation’ (2008) 26, Law and History Review, pp. 621-648.
Greenwood C, ‘The Relationship between Ius Ad Bellum and Ius in Bello’ (1983), Review of International Studies 9, pp. 221-234.
Ata R Hindi, ‘Unlawful Occupations? Assessing the Legality of Occupations, Including for Serious Breaches of Preemptory Norms’ (2023), Third World Approaches to International Law Review / TWAIL Review (TWAILR) 4, pp. 1-34.
Ardi Imseis, ‘Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine, 1967–2020’ (2020), European Journal of International Law 31, pp. 1055-1085.
Lynk, ‘Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, 23 October 2017’, UN Doc A/72/556, https://documents.un.org/doc/undoc/gen/n17/340/02/pdf/n1734002.pdf
Yaël Ronen, ‘Illegal Occupation and Its Consequences’ (2008), Israel Law Review 41, pp. 201-245.
Ariel Zemach, ‘Can Occupation Resulting from a War of Self-Defense Become Illegal’ (2015),Minnesota Journal of International Law 24, p.313-350.
Ariel Zemach, ‘From Illegal Annexation to Illegal Occupation: The Missing Link in the Reasoning of the International Court of Justice’, Verfassungsblog, 11 October 2024, https://verfassungsblog.de/from-illegal-annexation-to-illegal-occupation/
‘Situation of Human Rights in the Palestinian Territories Occupied since 1967’, UN Doc A/77/356, https://brill.com/view/journals/pyio/18/1/article-p291_11.xml
ICJ, ‘Advisory Opinion on the Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem’, https://icj-cij.org/sites/default/files/case-related/186/186-20240719-adv-01-00-en.pdf
Jasmine Moussa, ‘The Advisory Opinion on Israel’s Policies and Practices in the Occupied Palestinian Territory: Revisiting the distinction between jus ad bellum and jus in bello’, Verfassungsblog, 11 October 2024, https://verfassungsblog.de/the-advisory-opinion-on-israels-policies-and-practices-in-the-occupied-palestinian-territory/
Yuval Shany and Amichai Cohen, ‘Security Considerations, the Duty to End Belligerent Occupations and the ICJ Advisory Opinion on Israeli practices and policies in the Occupied Palestinian Territory’, Verfassungsblog, 13 October 2024, https://verfassungsblog.de/security-considerations-the-duty-to-end-belligerent-occupations-and-the-icj-advisory-opinion-on-israeli-practices-and-policies-in-the-occupied-palestinian-territory
Photo credits:
Cover picture: A section of the separation wall at its early construction stage splitting the Palestine communities east of Jerusalem, as viewed from the Botanical Garden on Mount Scopus.
Source: Wikimedia Commons
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