Yesterday, the International Court of Justice delivered its groundbreaking advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. (The Court’s opinion and all of the individual opinions of the judges are available here.) The bottom line of the AO is that the Court found that Israel’s continued occupation of the OPT violates various rules of international law, and that Israel has to withdraw from the OPT as rapidly as possible – but there are many other findings of the Court, including with regard to the obligations of third states, that merit discussion. In some senses the outcome of the AO is hardly surprising, but the opinion covers so many different issues, some of which are actually quite novel, that, even if we took the political context aside, we could easily say that this is one of the most important decisions that the ICJ has ever delivered.
In this post I will discuss some of the Court’s key findings. The post is not meant to be a comprehensive overview of the AO. I will be discussing some questions (e.g. the Court’s approach to the question whether Gaza has remained occupied by Israel) separately, and we will of course have other posts on the AO imminently.
The degree of consensus within the Court
The first point I would make is that, despite the multitude of issues that the case raised, and the genuine difficulty of some of them, there was a remarkable degree of consensus within the Court. This can of course be seen from the AO’s operative paragraphs – some points were decided by a 14 to 1 majority, others by 12 to 3 and 11 to 4. As always, there was a price for obtaining that consensus: ambiguities and silences in the Court’s analysis on some important points (for example, on whether Israel’s practices in the OPT amount to apartheid, or whether Palestine has already achieved statehood). There are also 14 (!) individual opinions – that must be some kind of record, which I’m sure will inspire one of Dapo’s trivia competitions – with some judges writing both jointly and separately.
But that sheer number of individual opinions should not obscure the remarkable degree of consensus within the Court. First, on a whole set of issues, which form the predicate for the conclusions that follow, that is whether various Israeli practices in the OPT, such as the construction of settlements or the failure to prevent violence by settlers, violate international humanitarian law, human rights law, the right of the Palestinian people to self-determination, or other rules of international law, the Court is actually unanimous. This as it should be – some of these practices are so blatantly illegal that no reasonable international lawyer could argue otherwise. In effect, this part of the AO builds on the Court’s previous findings of violations of IHL and other rules of international law in its Wall opinion 20 years ago.
When I say that the Court is unanimous on these points, I’m referring expressly to Judge Sebutinde’s dissenting opinion. She would have declined to answer the General Assembly’s request, and is very critical of the questions asked and of how the Court chose to answer them. But, from how I read her opinion, even Judge Sebutinde agrees that various Israeli practices violate international law, and obviously so (para 51): ‘The answers to question one, even if based on a one-sided narrative, may not pose any surprises for the General Assembly, especially since much of the applicable law was already pronounced by the Court in previous advisory opinions, including the Wall Opinion, Namibia Opinion and Chagos Opinion. That is a straightforward mathematical exercise.’
Similarly, in their joint opinion, Judges Tomka, Abraham and Aurescu, who, together with Judge Sebutinde, voted against several operative paragraphs of the AO, say the following ( at para 3):
We are also convinced that a large number of Israel’s policies and practices in the territories it occupies since 1967 are in breach of its obligations under international law. In this respect, we can endorse most of the observations presented in section IV of the Opinion, on the basis of which the Court concludes that these “policies and practices” are unlawful. In particular, we share the view that the general and systemic practice of establishment and development of settlements in the West Bank is contrary to Article 49 of the Fourth Geneva Convention, as the Court already observed in 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 184, para. 120). More generally, we believe that numerous aspects of Israel’s policy, especially over the past twenty years, can only be understood as aiming to gradually incorporate the majority of Area C of the West Bank into Israel’s own territory (in addition to the formal annexation of East Jerusalem in 1980). The implementation of such an objective, as the Court observed in 2004 within the narrower context of construction of the wall, “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right” (ibid., para. 122). What was true in the limited context of the Opinion delivered in 2004 is even more so in the broader context of Israel’s “practices and policies” in the Occupied Palestinian Territory considered in the present Opinion.
Where the three Judges (plus Judge Sebutinde) part ways with the Court is in making a further crucial step: that the occupation as such is now a continuing internationally wrongful act, and that the occupation as such, rather than various aspects of how it is conducted, must accordingly be terminated. This is the single most important point in the case, which is legally non-obvious, to put it mildly, and the Court decides it by 11 votes to 4 – on any account a very strong majority. I will come back to it in the final part of the post.
Violations of international law in occupation: applicable law
The Court thus had little difficulty in finding that many Israeli practices and policies in the OPT violate IHL or IHRL – this is in effect the Wall AO plus, decided 20 years later. I will not be discussing these points in any detail, although some of them very much merit discussion. Rather, I will draw out some particular points of interest which mainly relate to defining the applicable law.
First, the Court holds that the law of occupation still applies, at least partly, to Israel’s conduct in Gaza, despite its unilateral disengagement in 2005. The way it does so, however, is somewhat ambiguous, and I will discuss this in a separate future post.
Second, the Court reaffirms its holding in the Wall case that human rights treaties apply extraterritorially when a state exercises jurisdiction outside its territory, and also quotes the Wall AO regarding the relationship between IHL and IHRL. However, the Court does not say anything in detail about the notion of jurisdiction in IHRL treaties – the implication here is that the ICCPR, the ICESCR and the CERD apply in the OPT because Israel exercises control over the territory (paras 97-101), but this is not expressly stated.
Third, the Court examines various aspects of the ‘prolonged’ nature of Israel’s occupation of the OPT, and finds – entirely correctly in my view – that the prolonged nature of an occupation has no legal consequences as such under IHL. Rather, the prolonged nature of the occupation may be relevant for assessing the occupying power’s compliance with other rules of international law (para 109):
The fact that an occupation is prolonged does not in itself change its legal status under international humanitarian law. Although premised on the temporary character of the occupation, the law of occupation does not set temporal limits that would, as such, alter the legal status of the occupation. Instead, the legality of the occupying Power’s presence in the occupied territory must be assessed in light of other rules. In particular, occupation consists of the exercise by a State of effective control in foreign territory (see paragraphs 91-92 above). In order to be permissible, therefore, such exercise of effective control must at all times be consistent with the rules concerning the prohibition of the threat or use of force, including the prohibition of territorial acquisition resulting from the threat or use of force, as well as with the right to self-determination. Therefore, the fact that an occupation is prolonged may have a bearing on the justification under international law of the occupying Power’s continued presence in the occupied territory.
Israel’s annexation policy, the prohibition on the use of force and the prohibition on the acquisition of territory through force
The Court finds that Israel has been pursuing a policy of annexing parts of the OPT, either de jure or de facto. ‘These policies and practices are designed to remain in place indefinitely and to create irreversible effects on the ground.’ (para 173). This is a manifestly correct factual finding, which all of the Judges – even perhaps Judge Sebutinde – endorse.
The question is how to assess the legality of this policy. And here the Court frames this question as one to be judged by reference to the prohibition on the use of force in Article 2(4) of the Charter, concluding as follows (para 179):
The Court has found that Israel’s policies and practices amount to annexation of large parts of the Occupied Palestinian Territory. It is the view of the Court that to seek to acquire sovereignty over an occupied territory, as shown by the policies and practices adopted by Israel in East Jerusalem and the West Bank, is contrary to the prohibition of the use of force in international relations and its corollary principle of the non-acquisition of territory by force. The manner in which the annexation affects the legal status of the occupation, and thereby the legality of the continued presence of Israel, is discussed below.
There are two key points here. The first is how the Court treats two related but arguably separate rules – the prohibition on the use of force and the prohibition on the acquisition of territorial title through force – in one breath, potentially devaluing the latter. My friends Monica Hakimi and Ingrid Brunk are I imagine having a field day on this, bearing in mind their recent article on the topic, and I’m sure will contribute their thoughts on this imminently. The second is how the Court never explains who exactly the Article 2(4) prohibition protects, that is, against whom exactly is Israel unlawfully using force. Is it the State of Palestine, existing or in statu nascendi? Or is it the Palestinian people? Or a Palestinian self-determination territorial unit? The Court just never explains why exactly Article 2(4) even applies – see, in this regard, my discussion of this issue in the context of Israel’s purported right to self-defence against attacks emanating from Palestinian territory.
To put this differently, had the Court previously found that a State of Palestine already existed, its analysis on annexation would have been entirely straightforward as written – annexing East Jerusalem or parts of the West Bank would have been equally unlawful as, say, Russia’s annexation of Crimea or parts of eastern Ukraine. But throughout the AO the Court is very careful to avoid saying anything directly on the statehood of Palestine. Here it also seems to be careful in maintaining its silence on the question whether the prohibition in Article 2(4) protects entities other than states, and if so which ones. This ambiguity is repeated later in the opinion when the Court examines the legality of the occupation as such.
Discrimination and (no?) apartheid
The Court then proceeds to conclude that various policies and practices by Israel in the OPT are discriminatory as that term is understood in IHRL, that is they constitute differential treatment, generally disadvantaging Palestinians, without a sufficient justification. The Court’s analysis here, for example with regard to freedom of movement or destruction of private property, is again relatively straightforward. The Court thus concludes (para 223):
For the reasons above, the Court concludes that a broad array of legislation adopted and measures taken by Israel in its capacity as an occupying Power treat Palestinians differently on grounds specified by international law. As the Court has noted, this differentiation of treatment cannot be justified with reference to reasonable and objective criteria nor to a legitimate public aim (see paragraphs 196, 205, 213 and 222). Accordingly, the Court is of the view that the régime of comprehensive restrictions imposed by Israel on Palestinians in the Occupied Palestinian Territory constitutes systemic discrimination based on, inter alia, race, religion or ethnic origin, in violation of Articles 2, paragraph 1, and 26 of the ICCPR, Article 2, paragraph 2, of the ICESCR, and Article 2 of CERD.
The Court then moves to examining whether there is also a violation of Article 3 of CERD, which prohibits racial segregation and apartheid. This, of course, is a totemic issue in terms of the competing narratives of the Israeli-Palestinian conflict. And here the Court, seeking internal consensus, opted for a more ambiguous approach. It finds that Israel maintains a policy of separation between Israelis and Palestinians on the OPT, and concludes laconically (para 229) that:
The Court observes that Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD.
So, the Court finds a violation of Article 3 CERD, but it does not use the term apartheid or conduct any analysis of what the constitutive elements of apartheid are. This question is canvassed extensively in some of the separate opinions, but the bottom line of the Court’s approach seems clear – at best Israel’s actions amount ‘only’ to racial segregation, but they could also be apartheid. And the reason for this ambiguity is again the need to maintain consensus within the Court; the Court thus did not call Israel an ‘apartheid state’, but it did find a violation of an article in which apartheid is one of the two available options.
Self-determination and statehood
The Court then proceeds to discuss the right of the Palestinian people to self-determination. In line with its previous determination in the Wall AO, it unsurprisingly finds that Israeli policies violate the Palestinian people’s right to self-determination. These policies include the construction of settlements, the displacement of Palestinians, and depriving them of their natural resources, as well as the overarching policy of annexation.
During this discussion, the Court refers (para 237) to Israel’s ‘obligation not to impede the Palestinian people from exercising its right to self-determination, including its right to an independent and sovereign State, over the entirety of the Occupied Palestinian Territory.’ Again, this formulation is carefully chosen so that the Court avoids pronouncing on whether a Palestinian state already exists as a matter of law.
From violations of international law during occupation to occupation as a violation of international law
The key conceptual development in the AO happens in its final sections. It is here that the Court makes a leap from concluding that Israel has committed many violations of international law during its occupation of the OPT to ruling that the occupation as such has become an internationally wrongful act that needs to be terminated. Reasonable people can disagree on this point – it is precisely here that four judges part ways with the majority.
Before explaining what the Court has ruled here, I would make some preliminary points of my own. I’ve always thought that arguments regarding the illegality of Israel’s occupation have often been needlessly complicated and confusing. The legal position is, in my view, quite clear. As a matter of IHL, an occupation is neither legal or illegal, just like an armed conflict is neither legal or illegal. It simply exists or not. Clearly, an occupation can be conducted in a manner that categorically violates the law of occupation, including by denying that this law applies in the first place, but this has no bearing on the status of the occupation as a matter of IHL. But, as a matter of other rules of international law, an occupation can certainly be legal or illegal.
For example, Russia is currently the belligerent occupier of Crimea and parts of eastern Ukraine. That occupation is neither legal or illegal as a matter of IHL – it just exists, even if Russia denies that it does because it purports to have annexed these territories. But, Russia’s continued occupation of these territories – its continued control over them and exercise of power in them – is a manifest violation of the prohibition on the use of force in Article 2(4) of the Charter vis-à-vis Ukraine. In that sense Russia’s continued presence in Ukraine – every second of it – is a violation of international law that must be terminated. It is only if Russia had a valid justification to use force on the territory of Ukraine without its consent, i.e. self-defence, that its occupation would be legal (but it of course has no such justification).
So, bearing this in mind, what has the Court concluded with respect to Israel’s occupation of the OPT? First, the Court quite rightly in my view explained that the legality of the occupation is not to be judged against IHL, which simply contains no rules on the matter, but against other rules of international law (para 251):
The Court considers 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. It is the former category of rules and principles regarding the use of force, together with the right of peoples to self-determination, that the Court considers to be applicable to its reply to the first part of question (b) of the request for an advisory opinion by the General Assembly.
Second, the Court reiterates its finding that Israel’s annexation policies violate the prohibition on the acquisition of territory through force and that these and other practices violate the rights of the Palestinian people to self-determination (paras 252-257). This is in and of itself entirely unobjectionable, including the Court’s finding at para 254 that Israel’s security concerns cannot ‘override the principle of the prohibition of the acquisition of territory by force.’ Other than Judge Sebutinde, the other dissenting judges do not disagree with this point. What they would say, however, is that Israel’s wrongful acts are those policies and practices that purport to annex parts of the OPT, not the occupation as such. But for the majority, the existence of the occupation cannot be divorced from the way it was been conducted. This is what the Court says, in perhaps the most important paragraph of the opinion (para 261):
The Court considers that the violations by Israel of the prohibition of the acquisition of territory by force and of the Palestinian people’s right to self-determination have a direct impact on the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian territory. The 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. (emphasis added)
What are we to make of this? First, to my mind the key point here is the Court’s use of the notion of abuse of Israel’s position as an occupant – this resembles the abuse of rights doctrine, but I’m also reminded of doctrines in IHRL or domestic administrative law that regard as illegal acts that are done with certain ulterior purposes (here the annexation and systematic denial of self-determination).
Second, there is one major set of questions missing here – what the Court has called Israel’s security concerns, or what in jus ad bellum we would assess as Israel’s purported claim to self-defence. The Court just does not discuss these questions at all. Coupled with the ambiguity in the Court’s approach to the applicability of the jus ad bellum in the first place, which I noted above, and its coyness about the statehood of Palestine, it’s difficult to escape the impression that there is a substantial gap in the Court’s reasoning here.
Let me put this somewhat differently. Recall my Ukraine/Russia example above. We all agree that Russia’s occupation – i.e. control – of Ukrainian territory is illegal, because Russia violated Article 2(4) of the Charter when it invaded Ukraine. All reasonable international lawyers would similarly agree that Russia’s purported annexation of Ukrainian territories is also unlawful. But, if the ICJ was asked to pronounce, for example, on whether Russia’s occupation of Crimea is illegal, it would surely have to say something on whether Russia’s claim to self-defence against Ukraine is valid or not? How could it resolve the question of the occupation’s legality without ruling on the validity of the use of force that maintains the occupation which, in turn, depends on the putative invocation of self-defence?
Or, to give a complete counterfactual – imagine if Russia was correct and Ukraine did intend to imminently launch armed attacks against Russia. Russia’s occupation of Ukrainian territory would then be justified in jus ad bellum terms, so long as it was necessary and proportionate. Any purported annexation, however, would not be (although there have been a few scholars arguing that territorial claims in a war of self-defence could be sustained, this is far from the mainstream view). In such a case, the ICJ would have to rule that the annexation was unlawful, but it could not rule that the occupation was illegal, so long as the right to self-defence continued to apply (e.g. Ukraine maintained its intent to attack Russia).
So, coming back to the Palestine AO, I find it difficult to understand how the Court’s position on the illegality of the occupation as such can be sustained without the Court saying anything about the use of force/self-defence problem. For example, if the Court had said that self-defence cannot possibly be necessary after more than half a century of occupation, that would be a possible argument. Or, it could have adopted a theory about the non-applicability of self-defence at all in situations such as these. Or, it could have had an extensive factual analysis. But it had to say something.
One understanding of the Court’s reference to abuse in the paragraph above is that an action in self-defence could, even if the usual ad bellum criteria would otherwise be met, become unlawful if it became tainted by a predominantly ulterior purpose, such as territorial conquest. That is, the Court could essentially be saying that Israel’s claim of self-defence is pretextual, or that its security concerns are caused by the existence of the occupation itself, the real goal of which is acquisition of territory through force while disregarding Palestinian self-determination. But again, the Court doesn’t say this in so many words.
It seems reasonably clear that this gap in the Court’s reasoning was again caused by the need to maintain consensus within the Court. Some of the individual opinions discuss the security issue in detail. For example, Judges Cleveland and Nolte do so when writing jointly, adopting a variant of the ulterior purpose approach (para 8). They also note that, in their view, the situation in Gaza is quite different from that of East Jerusalem and the West Bank. Judge Tladi finds that Israel could not successfully rely on self-defence to justify its occupation, for various reasons. In this initial impression, I can’t analyse all of the separate opinions in detail. Having read them, however, it is quite clear that this was one of the questions that vexed the judges the most, which led to the AO text that we have. Just to be clear, I am not saying that I disagree with the Court’s conclusion – not at all – but I think it’s hard to dispute that this point required more substantiation.
ICJ Delivers Advisory Opinion on the Legality of Israel’s Occupation of Palestinian Territories
Written by Marko MilanovicYesterday, the International Court of Justice delivered its groundbreaking advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. (The Court’s opinion and all of the individual opinions of the judges are available here.) The bottom line of the AO is that the Court found that Israel’s continued occupation of the OPT violates various rules of international law, and that Israel has to withdraw from the OPT as rapidly as possible – but there are many other findings of the Court, including with regard to the obligations of third states, that merit discussion. In some senses the outcome of the AO is hardly surprising, but the opinion covers so many different issues, some of which are actually quite novel, that, even if we took the political context aside, we could easily say that this is one of the most important decisions that the ICJ has ever delivered.
In this post I will discuss some of the Court’s key findings. The post is not meant to be a comprehensive overview of the AO. I will be discussing some questions (e.g. the Court’s approach to the question whether Gaza has remained occupied by Israel) separately, and we will of course have other posts on the AO imminently.
The degree of consensus within the Court
The first point I would make is that, despite the multitude of issues that the case raised, and the genuine difficulty of some of them, there was a remarkable degree of consensus within the Court. This can of course be seen from the AO’s operative paragraphs – some points were decided by a 14 to 1 majority, others by 12 to 3 and 11 to 4. As always, there was a price for obtaining that consensus: ambiguities and silences in the Court’s analysis on some important points (for example, on whether Israel’s practices in the OPT amount to apartheid, or whether Palestine has already achieved statehood). There are also 14 (!) individual opinions – that must be some kind of record, which I’m sure will inspire one of Dapo’s trivia competitions – with some judges writing both jointly and separately.
But that sheer number of individual opinions should not obscure the remarkable degree of consensus within the Court. First, on a whole set of issues, which form the predicate for the conclusions that follow, that is whether various Israeli practices in the OPT, such as the construction of settlements or the failure to prevent violence by settlers, violate international humanitarian law, human rights law, the right of the Palestinian people to self-determination, or other rules of international law, the Court is actually unanimous. This as it should be – some of these practices are so blatantly illegal that no reasonable international lawyer could argue otherwise. In effect, this part of the AO builds on the Court’s previous findings of violations of IHL and other rules of international law in its Wall opinion 20 years ago.
When I say that the Court is unanimous on these points, I’m referring expressly to Judge Sebutinde’s dissenting opinion. She would have declined to answer the General Assembly’s request, and is very critical of the questions asked and of how the Court chose to answer them. But, from how I read her opinion, even Judge Sebutinde agrees that various Israeli practices violate international law, and obviously so (para 51): ‘The answers to question one, even if based on a one-sided narrative, may not pose any surprises for the General Assembly, especially since much of the applicable law was already pronounced by the Court in previous advisory opinions, including the Wall Opinion, Namibia Opinion and Chagos Opinion. That is a straightforward mathematical exercise.’
Similarly, in their joint opinion, Judges Tomka, Abraham and Aurescu, who, together with Judge Sebutinde, voted against several operative paragraphs of the AO, say the following ( at para 3):
Where the three Judges (plus Judge Sebutinde) part ways with the Court is in making a further crucial step: that the occupation as such is now a continuing internationally wrongful act, and that the occupation as such, rather than various aspects of how it is conducted, must accordingly be terminated. This is the single most important point in the case, which is legally non-obvious, to put it mildly, and the Court decides it by 11 votes to 4 – on any account a very strong majority. I will come back to it in the final part of the post.
Violations of international law in occupation: applicable law
The Court thus had little difficulty in finding that many Israeli practices and policies in the OPT violate IHL or IHRL – this is in effect the Wall AO plus, decided 20 years later. I will not be discussing these points in any detail, although some of them very much merit discussion. Rather, I will draw out some particular points of interest which mainly relate to defining the applicable law.
First, the Court holds that the law of occupation still applies, at least partly, to Israel’s conduct in Gaza, despite its unilateral disengagement in 2005. The way it does so, however, is somewhat ambiguous, and I will discuss this in a separate future post.
Second, the Court reaffirms its holding in the Wall case that human rights treaties apply extraterritorially when a state exercises jurisdiction outside its territory, and also quotes the Wall AO regarding the relationship between IHL and IHRL. However, the Court does not say anything in detail about the notion of jurisdiction in IHRL treaties – the implication here is that the ICCPR, the ICESCR and the CERD apply in the OPT because Israel exercises control over the territory (paras 97-101), but this is not expressly stated.
Third, the Court examines various aspects of the ‘prolonged’ nature of Israel’s occupation of the OPT, and finds – entirely correctly in my view – that the prolonged nature of an occupation has no legal consequences as such under IHL. Rather, the prolonged nature of the occupation may be relevant for assessing the occupying power’s compliance with other rules of international law (para 109):
Israel’s annexation policy, the prohibition on the use of force and the prohibition on the acquisition of territory through force
The Court finds that Israel has been pursuing a policy of annexing parts of the OPT, either de jure or de facto. ‘These policies and practices are designed to remain in place indefinitely and to create irreversible effects on the ground.’ (para 173). This is a manifestly correct factual finding, which all of the Judges – even perhaps Judge Sebutinde – endorse.
The question is how to assess the legality of this policy. And here the Court frames this question as one to be judged by reference to the prohibition on the use of force in Article 2(4) of the Charter, concluding as follows (para 179):
There are two key points here. The first is how the Court treats two related but arguably separate rules – the prohibition on the use of force and the prohibition on the acquisition of territorial title through force – in one breath, potentially devaluing the latter. My friends Monica Hakimi and Ingrid Brunk are I imagine having a field day on this, bearing in mind their recent article on the topic, and I’m sure will contribute their thoughts on this imminently. The second is how the Court never explains who exactly the Article 2(4) prohibition protects, that is, against whom exactly is Israel unlawfully using force. Is it the State of Palestine, existing or in statu nascendi? Or is it the Palestinian people? Or a Palestinian self-determination territorial unit? The Court just never explains why exactly Article 2(4) even applies – see, in this regard, my discussion of this issue in the context of Israel’s purported right to self-defence against attacks emanating from Palestinian territory.
To put this differently, had the Court previously found that a State of Palestine already existed, its analysis on annexation would have been entirely straightforward as written – annexing East Jerusalem or parts of the West Bank would have been equally unlawful as, say, Russia’s annexation of Crimea or parts of eastern Ukraine. But throughout the AO the Court is very careful to avoid saying anything directly on the statehood of Palestine. Here it also seems to be careful in maintaining its silence on the question whether the prohibition in Article 2(4) protects entities other than states, and if so which ones. This ambiguity is repeated later in the opinion when the Court examines the legality of the occupation as such.
Discrimination and (no?) apartheid
The Court then proceeds to conclude that various policies and practices by Israel in the OPT are discriminatory as that term is understood in IHRL, that is they constitute differential treatment, generally disadvantaging Palestinians, without a sufficient justification. The Court’s analysis here, for example with regard to freedom of movement or destruction of private property, is again relatively straightforward. The Court thus concludes (para 223):
The Court then moves to examining whether there is also a violation of Article 3 of CERD, which prohibits racial segregation and apartheid. This, of course, is a totemic issue in terms of the competing narratives of the Israeli-Palestinian conflict. And here the Court, seeking internal consensus, opted for a more ambiguous approach. It finds that Israel maintains a policy of separation between Israelis and Palestinians on the OPT, and concludes laconically (para 229) that:
So, the Court finds a violation of Article 3 CERD, but it does not use the term apartheid or conduct any analysis of what the constitutive elements of apartheid are. This question is canvassed extensively in some of the separate opinions, but the bottom line of the Court’s approach seems clear – at best Israel’s actions amount ‘only’ to racial segregation, but they could also be apartheid. And the reason for this ambiguity is again the need to maintain consensus within the Court; the Court thus did not call Israel an ‘apartheid state’, but it did find a violation of an article in which apartheid is one of the two available options.
Self-determination and statehood
The Court then proceeds to discuss the right of the Palestinian people to self-determination. In line with its previous determination in the Wall AO, it unsurprisingly finds that Israeli policies violate the Palestinian people’s right to self-determination. These policies include the construction of settlements, the displacement of Palestinians, and depriving them of their natural resources, as well as the overarching policy of annexation.
During this discussion, the Court refers (para 237) to Israel’s ‘obligation not to impede the Palestinian people from exercising its right to self-determination, including its right to an independent and sovereign State, over the entirety of the Occupied Palestinian Territory.’ Again, this formulation is carefully chosen so that the Court avoids pronouncing on whether a Palestinian state already exists as a matter of law.
From violations of international law during occupation to occupation as a violation of international law
The key conceptual development in the AO happens in its final sections. It is here that the Court makes a leap from concluding that Israel has committed many violations of international law during its occupation of the OPT to ruling that the occupation as such has become an internationally wrongful act that needs to be terminated. Reasonable people can disagree on this point – it is precisely here that four judges part ways with the majority.
Before explaining what the Court has ruled here, I would make some preliminary points of my own. I’ve always thought that arguments regarding the illegality of Israel’s occupation have often been needlessly complicated and confusing. The legal position is, in my view, quite clear. As a matter of IHL, an occupation is neither legal or illegal, just like an armed conflict is neither legal or illegal. It simply exists or not. Clearly, an occupation can be conducted in a manner that categorically violates the law of occupation, including by denying that this law applies in the first place, but this has no bearing on the status of the occupation as a matter of IHL. But, as a matter of other rules of international law, an occupation can certainly be legal or illegal.
For example, Russia is currently the belligerent occupier of Crimea and parts of eastern Ukraine. That occupation is neither legal or illegal as a matter of IHL – it just exists, even if Russia denies that it does because it purports to have annexed these territories. But, Russia’s continued occupation of these territories – its continued control over them and exercise of power in them – is a manifest violation of the prohibition on the use of force in Article 2(4) of the Charter vis-à-vis Ukraine. In that sense Russia’s continued presence in Ukraine – every second of it – is a violation of international law that must be terminated. It is only if Russia had a valid justification to use force on the territory of Ukraine without its consent, i.e. self-defence, that its occupation would be legal (but it of course has no such justification).
So, bearing this in mind, what has the Court concluded with respect to Israel’s occupation of the OPT? First, the Court quite rightly in my view explained that the legality of the occupation is not to be judged against IHL, which simply contains no rules on the matter, but against other rules of international law (para 251):
Second, the Court reiterates its finding that Israel’s annexation policies violate the prohibition on the acquisition of territory through force and that these and other practices violate the rights of the Palestinian people to self-determination (paras 252-257). This is in and of itself entirely unobjectionable, including the Court’s finding at para 254 that Israel’s security concerns cannot ‘override the principle of the prohibition of the acquisition of territory by force.’ Other than Judge Sebutinde, the other dissenting judges do not disagree with this point. What they would say, however, is that Israel’s wrongful acts are those policies and practices that purport to annex parts of the OPT, not the occupation as such. But for the majority, the existence of the occupation cannot be divorced from the way it was been conducted. This is what the Court says, in perhaps the most important paragraph of the opinion (para 261):
What are we to make of this? First, to my mind the key point here is the Court’s use of the notion of abuse of Israel’s position as an occupant – this resembles the abuse of rights doctrine, but I’m also reminded of doctrines in IHRL or domestic administrative law that regard as illegal acts that are done with certain ulterior purposes (here the annexation and systematic denial of self-determination).
Second, there is one major set of questions missing here – what the Court has called Israel’s security concerns, or what in jus ad bellum we would assess as Israel’s purported claim to self-defence. The Court just does not discuss these questions at all. Coupled with the ambiguity in the Court’s approach to the applicability of the jus ad bellum in the first place, which I noted above, and its coyness about the statehood of Palestine, it’s difficult to escape the impression that there is a substantial gap in the Court’s reasoning here.
Let me put this somewhat differently. Recall my Ukraine/Russia example above. We all agree that Russia’s occupation – i.e. control – of Ukrainian territory is illegal, because Russia violated Article 2(4) of the Charter when it invaded Ukraine. All reasonable international lawyers would similarly agree that Russia’s purported annexation of Ukrainian territories is also unlawful. But, if the ICJ was asked to pronounce, for example, on whether Russia’s occupation of Crimea is illegal, it would surely have to say something on whether Russia’s claim to self-defence against Ukraine is valid or not? How could it resolve the question of the occupation’s legality without ruling on the validity of the use of force that maintains the occupation which, in turn, depends on the putative invocation of self-defence?
Or, to give a complete counterfactual – imagine if Russia was correct and Ukraine did intend to imminently launch armed attacks against Russia. Russia’s occupation of Ukrainian territory would then be justified in jus ad bellum terms, so long as it was necessary and proportionate. Any purported annexation, however, would not be (although there have been a few scholars arguing that territorial claims in a war of self-defence could be sustained, this is far from the mainstream view). In such a case, the ICJ would have to rule that the annexation was unlawful, but it could not rule that the occupation was illegal, so long as the right to self-defence continued to apply (e.g. Ukraine maintained its intent to attack Russia).
So, coming back to the Palestine AO, I find it difficult to understand how the Court’s position on the illegality of the occupation as such can be sustained without the Court saying anything about the use of force/self-defence problem. For example, if the Court had said that self-defence cannot possibly be necessary after more than half a century of occupation, that would be a possible argument. Or, it could have adopted a theory about the non-applicability of self-defence at all in situations such as these. Or, it could have had an extensive factual analysis. But it had to say something.
One understanding of the Court’s reference to abuse in the paragraph above is that an action in self-defence could, even if the usual ad bellum criteria would otherwise be met, become unlawful if it became tainted by a predominantly ulterior purpose, such as territorial conquest. That is, the Court could essentially be saying that Israel’s claim of self-defence is pretextual, or that its security concerns are caused by the existence of the occupation itself, the real goal of which is acquisition of territory through force while disregarding Palestinian self-determination. But again, the Court doesn’t say this in so many words.
It seems reasonably clear that this gap in the Court’s reasoning was again caused by the need to maintain consensus within the Court. Some of the individual opinions discuss the security issue in detail. For example, Judges Cleveland and Nolte do so when writing jointly, adopting a variant of the ulterior purpose approach (para 8). They also note that, in their view, the situation in Gaza is quite different from that of East Jerusalem and the West Bank. Judge Tladi finds that Israel could not successfully rely on self-defence to justify its occupation, for various reasons. In this initial impression, I can’t analyse all of the separate opinions in detail. Having read them, however, it is quite clear that this was one of the questions that vexed the judges the most, which led to the AO text that we have. Just to be clear, I am not saying that I disagree with the Court’s conclusion – not at all – but I think it’s hard to dispute that this point required more substantiation.
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J E A says
July 20, 2024
What took you so long?
Andreas Paulus says
July 20, 2024
Thank you Marko as ever for your great post. The reason why the majority has not gone into self-defense analysis seems to be the logic of „abuse“. If you abuse the right to self-defense, the right does not apply any more, because your purpose is not to defend yourself, but something else entirely. The same is valid for a standalone proportionality analysis: The first preliminary test is whether you pursue a legitimate purpose. Without legitimate purpose you do not get into balancing of the purpose with the means employed. When you abuse self-defense for other purposes, your purpose is not legitimate. Accordingly, in that logic, self-defense and proportionality do not apply.
Greg Fox says
July 20, 2024
A really clear and thoughtful post, Marko. Well done on short notice.
I agree with Andreas that the abuse point is critical to finding no jus ad bellum justification for the ongoing occupation.
But an additional complication, perhaps accounting for the compromise language, is that abuse must be a mixed question of law and fact, not simply a matter of the correct legal category or interpreting the meaning of jus ad bellum standards. Whether Israel intends to impose sovereignty over the OPT is obviously a factual question. But also imagine there had been prior attacks from the OPT on Israel proper on the scale of October 2. That would present a stronger factual basis for Israel claiming an ongoing self-defense rationale for the occupation. Wading into those factual questions would have been very difficult and evidently not something the majority of judges wanted to do.
Margaretha Wewerinke-Singh says
July 20, 2024
Thank you, Marko, for this insightful analysis. While there’s indeed much more to unpack, I’d like to offer a perspective on how the Court approaches the use of force/self-defence issue in relation to the illegality of the occupation.
Critical in my view is that the Court’s analysis on this point is holistic, which is largely a result of how the questions were framed. As the Court emphasises in paragraphs 244-250, the first part of question (b) asks ‘how’ rather than ‘whether’ the legal status of the occupation is affected by the specific conduct identified in question (a). This framing leads to a broader analysis where the question of the legality of the occupation becomes inseparable from the illegality of the conduct identified in question (a).
As part of this broader analysis the Court considers that “occupation cannot be used in such a manner as to leave indefinitely the occupied population in a state of suspension and uncertainty, denying them their right to self-determination while integrating parts of their territory into the occupying Power’s own territory.”
While this holistic approach does raise methodological questions, e.g. about the Court’s weighing of various factors, I’d argue that it is overall helpful. The comprehensive assessment of the situation renders the Court’s finding about the unlawfulness of the occupation extremely persuasive, even inescapable. Equally importantly, this broad assessment prevents an overly narrow characterisation of the internationally wrongful act, which in turn enables the Court to provide meaningful answers to the questions about legal consequences.
Marko Milanovic says
July 21, 2024
Many thanks to everyone for the comments - much appreciated. I agree that the abuse/ulterior purpose interpretation is probably most consistent with what the majority of judges had in mind (but again it would have been good to have this developed in more detail, which, as I said in the post and as Greg also noted, was however likely not feasible in order to maintain the majority within the Court). If we take this interpretation as a starting point - that the Court is essentially saying that Israel's occupation is irredeemably tainted by bad faith or ulterior purpose - this raises many downstream issues. One, for example, is that it's possible for states (i.e. their leaders) to act with multiple purposes, some of which are legitimate, some of which are not. This is why the ECtHR case law in cases such as Navalny v Russia or Demirtas v Turkey re Art 18 ECHR talks about predominant purposes. Second, jus ad bellum scholarship has generally regarded motives to be legally irrelevant - that is, the existence of a self-defence claim, for example, would be an objective question of the existence of an armed attack and necessity to respond to it, and if those requirements are met then all sorts of political or other motives in the background don't matter. The Court's approach here seems to be challenging that view, or at least that's how the AO can be read.
Dapo Akande says
July 22, 2024
Marko points out that 14 judges appended individual (or joint) opinions in this case. The one Judge who did not do so is Judge Bhandari. Marko, in effect invites me to post a trivia question on whether this is some kind of record.
I beat Marko to this request by posting a similar trivia question back in 2012! See https://www.ejiltalk.org/more-trivia-questions-on-the-international-court-of-justice/ My question back then was - "In which ICJ case or cases has every judge on the court appended an individual opinion to the Court’s judgment?" As you will see, the answer was the Nuclear Weapons Advisory Opinion So, in one sense, the Palestine Advisory Opinion is not a record with regard to individual (and joint) opinions because not every judge appended one.
However, the astute reader will note that the Court was only composed of 14 Judges in the Nuclear Weapons Advisory Opinion. So the 14 Judges appending individual and joint opinions in the present Advisory Opinion equals the number in the Nuclear Weapons Advisory Opinion.
Marko Milanovic says
July 22, 2024
NERD!
Adil Haque says
July 22, 2024
Hi Marko,
Thanks for the great post. The question of intent came up in the genocide case as well.
Back in January, South Africa argued that "If any military operation ... is carried out pursuant to an intention to destroy a “people”, in whole or in part, it violates the Genocide Convention and it must stop."
Israel did not contest this point, but instead argued that South Africa failed to establish that "the intent of the military operations as a whole" was genocidal.
I'm not sure that self-defense is generally seen as entirely objective. As I recall, Olivier Corten and Chris O'Meara think necessity, proportionality, and immediacy are ultimately about purpose, and I think Tom Ruys has suggested something similar about immediacy.
Finally, I don't love the term "ulterior purpose" in this context. I think "design" is better. I think the idea is that the intent to exercise permanent control pervades the specific measures, shapes their implementation, and integrates them into a single compound wrong.
Hope that's somewhat interesting,
Adil
Tamás Hoffmann says
July 22, 2024
Hi Marko,
As a rejoinder to Adil's remark, I am also not convinced that "jus ad bellum scholarship has generally regarded motives to be legally irrelevant - that is, the existence of a self-defence claim, for example, would be an objective question of the existence of an armed attack and necessity to respond to it".
This might be the case in most situations but there are notable exceptions, especially concerning the determination of use of force. For instance, while entering another state's territory without the latter's consent would generally be a clear violation of the use of force, there are several examples of troops mistakenly crossing the border. State practice - and legal scholarship - don't generally treat these situations as use of force exactly because of the underlying (lack of) motive.
Hence we don't usually think that Switzerland invaded Liechtenstein in 2007, or on two other occasions in the previous decades.
https://www.theguardian.com/world/2007/mar/02/markoliver
Marko Milanovic says
July 23, 2024
Hi Adil and Tamas,
Thanks for those comments. I think that jus ad bellum scholarship (and state practice) have certainly taken considerations of intentionality into account when determined whether an ARMED ATTACK exists. The same is likely not true for the use of force threshold as such. For example, if Russia was to fire missiles into Ukraine, and the missile unintentionally crossed into Poland and killed people in Poland, then Russia would have used force against Poland. (The same would apply, as actually happened, if Ukraine unintentionally killed people in Poland: https://www.ejiltalk.org/as-far-as-we-know-there-has-been-no-armed-attack-against-poland/ ). But there would be no armed attack without the intention to commit it against a particular state.
My point, however, is that MOTIVE has generally not been regarded as relevant in claims of self-defence. The key point arising frequently there - which does in part turn on considerations of intentionality - is whether a response in self-defence is really one of retaliation/reprisal. But it has generally been regarded as black letter law that if the conditions of lawful self-defence are met, then background motives don't matter. Don't take my word for this, here's the ICJ in Nicaragua, para 127:
127. Nicaragua claims that the references made by the United States to the justification of collective self-defence are merely "pretexts" for the activities of the United States. It has alleged that the true motive for the conduct of the United States is unrelated to the support which it accuses Nicaragua of giving to the armed opposition in El Salvador, and that the real objectives of United States policy are to impose its will upon Nicaragua and force it to comply with United States demands. In the Court's view, however, if Nicaragua has been giving support to the armed opposition in El Salvador, and if this constitutes an armed attack on El Salvador and the other appropriate conditions are met, collective self-defence could be legally invoked by the United States, even though there may be the possibility of an additional motive, one perhaps even more decisive for the United States, drawn from the political orientation of the present Nicaraguan Government. The existence of an additional motive, other than that officially proclaimed by the United States, could not deprive the latter of its right to resort to collective self-defence. The conclusion to be drawn is that special caution is called for in considering the allegations of the United States concerning conduct by Nicaragua which may provide a sufficient basis for self-defence.
So it could be that we're seeing some shift from the Court on this.
Adil Haque says
July 24, 2024
Thanks, Marko. Not to belabor, but I'll just note that here intent is constitutive of the wrongful acts (genocide and acquisition/annexation). So if you use force with the intent to permanently control, or kill with the intent to destroy a group, then you are not just abusing a right, acting otherwise-permissibly but with a corrupt motive. You are thereby (in virtue of your intent) committing a wrongful act.
There might be cases in which a person or State otherwise acts entirely within their rights, but with an intent that renders their act wrongful. That would be interesting. But I don't think that's what's happening here. Instead, the wrong-making intent also guides and shapes the acts themselves, which in turn 'display' or 'manifest' the intent. Hence my concern with the term 'ulterior'.
Hope that makes sense. Happy to let it rest there if you are busy writing your next post :)
Stay well,
Adil
Rob McLaughlin says
August 7, 2024
Sorry to be late to this - just catching up on the reading...
Marko, as ever an excellent analysis; commentators all, as ever, an excellent dialogue.
I wanted only to endorse Marko's point about motive not really being a constitutive consideration in assessing self-defence. I think this is exactly the point in the Nicaragua case, as Marko noted. Indeed, this issue - albeit in a more opaque context - also tangentially arose in Corfu Channel (Merits) (pp30-32). Here, dealing with the motive behind the manner of the warships' passage, and whether this constituted a breach of Albanian sovereignty (such as to potentially enliven self-defence), the Court knew and recited the UK's purpose - being, essentially, to poke Albania to see what the response would be: 'to test Albania's attitude, but at the same time to demonstrate such force that she would abstain from firing again on passing ships'. But this (according to Albania, provocative) motive was clearly sidelined in the Court's assessment of whether there had been a breach of sovereignty. Likewise, the - according to the UK, altruistic - motive behind the subsequent mine-clearance operation (ie, to make the channel safe for navigation) was also not relevant to the ultimate assessment of whether this conduct constituted a breach of sovereignty.