A Hypothetical Scenario on Illegal Occupation

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Readers will recall that there is some degree of ambiguity in the ICJ’s recent holding in its Palestine advisory opinion as to how Israel’s systematic violations of IHL and other rules of international law, including the Palestinian people’s right to self-determination, rendered Israel’s continued presence in the occupied territories unlawful. That is, the difficult question – which divided the judges – is not whether Israel violated international law in how it has conducted the occupation (that much is obvious), but how and why the occupation as such became illegal and had to be terminated. (For more background and discussion, see here (including the comments), our recent podcast episode here, as well as here and here).

In para. 251 of AO, the Court held that the legality of Israel’s continued presence is to be assessed not against IHL, which contains no rules on the matter, but against the jus ad bellum and the right to self-determination. Then, in the most important paragraph of the opinion (para 261), the Court held as follows:

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)

So, it is the occupying power’s abuse of its position, which has two prongs – the unlawful annexation and the frustration of Palestinian self-determination – that renders the continued occupation unlawful. As I explained in my initial post (again please also see the comments by colleagues to it), the Court’s reasoning could have been more developed. It likely wasn’t in order to ensure consensus on the bench. In particular, the Court says nothing explicitly about the jus ad bellum and Israel’s claim that its continued presence is justified by self-defence.

The Israeli/Palestinian scenario is so unique and complex that it easily leads to conceptual tangents and sometimes makes it difficult to understand the operation of some key principles. So in this post I wish to offer a hypothetical scenario that is in some ways simpler, which I hope can facilitate our understanding of the Court’s approach in para. 261 of the Palestine AO. The scenario is as follows.

A and B are neighbouring states. They have a longstanding dispute about historical region X. Part of that region falls within A’s internationally recognized borders (XA), part of it within B’s (XB). The leadership of B decides to take over all of X by force, and B invades A.

A successfully repels B’s invasion; its armed forces pursue B’s army onto B’s territory. In doing so, A occupies XB. A argues that controlling XB is necessary to prevent any further attacks by B and to secure XA – it is in fact the case that, due to geography, controlling XB makes it much easier to defend XA.

A then implements an explicit policy of annexation of XB, claiming that it has the right to take this territory, which it conquered in a war of self-defence. The leadership of B continue making public statements that B is the rightful sovereign of all of X, and then as soon as B reconstitutes its armed forces it will attack A again in an attempt to retake XB and also capture XA.

To summarize:

  • A has a valid self-defence claim against B. In particular, its entry into B’s territory and the occupation of XB are (initially) justified in jus ad bellum terms – holding XB is necessary and proportionate to prevent B’s attacks against A (including XA). (A good comparison point would be Ukraine’s ongoing operation in the Kursk region of Russia).
  • That self-defence claim continues, at least in principle, because B expressly says that, despite its defeat, it will attack A again if given the chance.
  • As a matter of fact, the continued occupation of XB greatly facilitates the defence of A and XA.
  • Nonetheless, A clearly violates the prohibition on the acquisition of territory through force, by seeking to expressly annex XB. Most scholars would agree that annexation is prohibited even in a war of self-defence, because permanent transfer of title is never going to be necessary and proportionate (a good comparison point here would be the Golan Heights).

This, again, is a simpler scenario in various ways than Israel/Palestine. So bearing this in mind, would you, in applying the ICJ’s holding in para. 261 of the Palestine AO, hold that A’s ‘sustained abuse’ of its position as an occupying power in XB, by seeking to annex XB, suffices to render A’s continued presence in XB unlawful? Would this abuse, in your opinion, essentially defeat A’s claim to self-defence against B, bearing in mind that, were it not for the annexation,  A’s control of XB would be part of a valid exercise of the right to self-defence? In other words, if you were a judge of the Court, would you not only rule that A has to desist from any attempt to annex XB, but also that A’s continued presence in XB is illegal and that it was to withdraw as rapidly as possible?

This is the basic variant of this hypo, which we can modify to add other issues. For example, we could say that XB is inhabited by a distinct people, the X-ites, and that the X-ites, through the legitimate representatives of their people, want to exercise their right to self-determination by continuing to live within B. The X-ites do not want to live within A, at least partly because of a long history of the oppression of X-ites within A. A’s annexation of XB would thus not only violate the rule against the acquisition of territory through force, but also the right of X-ites to (internal) self-determination within B. So, if you answered the question in the basic scenario negatively, that is you thought that ‘mere’ annexation could not defeat a valid claim to self-defence, would the added violation of the right to self-determination change your answer? This modified scenario is meant to tease out the importance that self-determination plays in para. 261 – and we could modify it further if needed, e.g. by adding systematic human rights violations.

Comments from readers most welcome.

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  • International Court of Justice
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    Marty Lederman says

    August 28, 2024

    I had assumed para. 261 only makes sense if it's implying that the annexation demonstrates that the self-defense rationale is pretextual.

    I understand your hypo to be saying: Let's assume the self-defense rationale for occupation is *not* pretextual--indeed, that it's factually incontestable. If so, well, then I don't quite understand the argument that violations of other norms during that occupation undermine the validity of the occupation itself. Wouldn't that be akin to saying that b/c a state armed force has engaged in numerous JIB violations, its otherwise valid JAB argument is now inadequate? If so, ... I don't see it.

    Andrew Tucker says

    August 28, 2024

    Hi Marko, Thanks for this hypo! I think it's a great way of trying to unpack this case. However, as to the basic hypo, there are a number of complicating factors. First, assuming that by "XB" you mean the West Bank(WB) and East Jerusalem (EJ), XB never fell within the international borders of Jordan, because Jordan had no legitimate claim to WB/EJ when it attacked the new-born state of Israel in 1948. Second, even if it did, this would only have been a relevant hypo until Jordan withdrew all of its claims to WB/EJ in 1994. The Court's application of the principle of non-acquisition of territory by force (annexation) is therefore very curious. The Court expressly acknowledges that it assumes that the WB/EJ does not belong to Israel, and that it is "Palestinian". But it never explains why or how or when it became Palestinian. If it is true that Palestine is not (yet) a state, the WB/EJ cannot at any point in time have been situated within the borders of a state other than Israel; at best it can be described as "belonging" to a people, but that is also problematic as peoples, as long as they are not states, do not have the capacity to exercise territorial sovereignty. And in any event the Court makes no attempt to explain by what means, and when, the WB/EJ suddenly became "Palestinian". I think all of this illustrates the fundamental problem of the Opinion's approach: the Court asserts that Israel is annexing territory belonging to another, but never explains who that "other" is, and how and why EJ and the WB do not, or cannot, belong to the territory of the State of Israel. (its the same problem with UNSC resolution 478). It all depends on what was the territorial status of EJ/WB prior to Jordan's invasion on 15th May 1948 (ignoring Gaza for the purposes of this discussion). The answer to that question will give clarity on the status of the territory in June 1967, and therefore to the question of whether Israel was or was not entitled after 10th June 1967 to claim/assert sovereignty over any or all of the territory outside the Green Line. The Court completely ignores this question. There several possible answers to this question, of course. One of them is that the principle of uti possidetis juris kicked in (at least in principle) to mean that Israel's borders in May 1948 were automatically (in principle) the boundaries of the Mandate. This is the approach taken by Judge Sebutinde. A second possibility is that Israel's border was the 1949 Armistice Line - but that cannot be correct, because the Armistice Agreements themselves exclude that possibility. A third possibility is that the lines demarcated by the Partition Plan resolution 181II applied - but that also cannot be correct, because that was a non-binding resolution that was never accepted by the parties or implemented. A fourth possibility is that the WB becomes part of Jordan - but, as we have seen, that cannot be correct because Jordan had no legitimate claim to this territory, and in any event acquired and purported to annex it in 1950 in gross breach (being the aggressor) of the prohibition on acquisition of territory by force. A fifth possibility is the "occupation-no-sovereignty" model advanced by Weiler, Dinstein etc. But in my view that is also not convincing, as the fact that territory may fall within the scope of the ius in bello rules on belligerent occupation says nothing about the prior sovereign status of the relevant territory. A sixth and final possibility is that "the Palestinians" became sovereign at some point in history; but if so, when and how? Gerson tried to argue that this happened during the Jordanian occupation, but that seems rather unsatisfactory given the Palestinians did not themselves claim sovereignty over this territory, as against Jordan. All in all, no-one, as far as I can see, has shown in a satisfactory way how and why the territory outside the Green Line is "Palestinian". (Benvenisti, in his 2020 submission to the 2020, convincingly shows that the Palestinians/PLO have never, to this day, clearly and unambiguously asserted sovereignty).
    So, all in all: I would suggest that your hypothesis helps us understand that the ICJ majority's application of the principle of non-acquisition of territory by force to the case of East Jerusalem, West Bank and Gaza is highly problematic, at best, because the majority fails to address the question of sovereignty that logically needs to be answered in order to apply this principle. Interested in your thoughts!

    Marko Milanovic says

    August 28, 2024

    Hi Marty,

    I think that's a perfectly valid reading of para. 261 - essentially that the self-defence claim is bogus/pretextual ON THE FACTS. But on that reading para. 261 doesn't really put forward a novel point of law, it would basically be the result of a somewhat implicit factual inquiry, i.e. Israel is not REALLY defending itself in Palestine, it's just trying to conquer territory. Much as we would say, for example, that Russia's stated self-defence argument for invading Ukraine is bogus. The problem with this reading is that factually the Israel/Palestine situation is clearly more complex than that.

    Marko

    Marty Lederman says

    August 29, 2024

    Oh, don't get me wrong, Marko. Regardless of how strong Israel's self-defense rationale for occupation is (esp. w/r/t proportionality), I, too, doubt it's merely a pretext.

    But if para. 261 is *not* trying to make a point about alleged pretext, then is there any other plausible reading of the paragraph that's defensible?

    Marko Milanovic says

    August 29, 2024

    Marty, I think there are other defensible readings of para. 261 - one is that even a legitimate exercise of self-defence can become tainted by an ulterior purpose so that, even if objective criteria for self-defence are met (e.g. there is an armed attack, or it is imminent, and it is necessary/proportionate to respond to it), the continued presence can no longer be justified. That's sort of what the hypo is trying to get at.

    Andrew, the hypo is deliberately constructed in such a way to avoid some of the unique features of Israel/Palestine. So the hypo itself really doesn't correspond exactly to e.g. the West Bank or East Jerusalem. As for the AO, I think the Court's position is essentially that Israel has no sovereign title outside the 1967 borders and that's that.

    Waleed Mahmoud says

    August 30, 2024

    Hello, Marko. I really appreciate your post. It raises excellent questions that elicited deep reflection. I believe that mere annexation can turn a legitimate self-defense into a violation of international law, rendering the occupation unlawful. As with Israel, A's actions in XB are no longer about defense but about dominance, and the violation of self-determination (SD) only exacerbates the illegality. The ICJ would most likely rule that A's continued presence is unlawful, requiring withdrawal, because the occupation has shifted from protection to oppression, despite a valid claim of self-defense.

    Why do I believe the ICJ (or myself, as an ICJ judge) would reach this conclusion?

    1. The prohibition on the acquisition of territory by force is a fundamental principle of international law, per Article 2(4) of the UN Charter, which prohibits the use of force against any state's territorial integrity or political independence (see also, for example, UNGA Resolution 2625 (XXV). This principle holds up even in self-defense cases. The ICJ reaffirmed this in the Wall AO (paras 138-142), ruling that the acquisition of territory by force, even under the guise of self-defense, is unlawful. I believe your hypothesis boils down to one legal question (but also moral and, I hope, philosophical): whether A's annexation "the only way to safeguard an essential interest against a grave and imminent peril"? (25 ARSIWA / 33 ARS; ICJ Wall para. 140). Volumes could be written to properly answer this question, but I do not intuitively see a situation in which annexation is a viable legal or reasonable solution in your hypo. I am confident that A can find 100 solutions with B prior to annexation, for the reasons specified by the ICJ.
    2. One such obvious solution is to allow or not vehemently deny the use of SD. This could explain why the ICJ bundled both in para. 261, Palestine AO. SD is therefore important in two ways: (1) a solution that addresses the underlying causes of a situation requiring self-defense; (2) the denial of SD (via, e.g., annexation) is expressly prohibited. The ICJ has consistently recognized the right to self-determination as a jus cogens norm, i.e., no derogation is permitted. The X-ites express a clear desire to remain in their original state B and avoid being annexed by the occupying power A. The ICJ emphasized that people’s wishes must come first when determining the status of a territory, as coined in the ICJ’s Western Sahara and Namibia AOs. To respond to your question about the impact of self-determination. The denial of SD doesn’t occur in a vacuum, it is exclusively takes place when the disposition of the indigenous peoples of their territories is the desired effect. Why else would a state continue to deny a people the right to self-determination? I could not find any exceptions to my hypothesis about the relationship between SD and territorial acquisition but would be happy to learn of any.
    3. I was under the assumption that the ‘sustained abuse’ mentioned in para. 261 Palestine AO included a third prong, 'an assertion of permanent control’. In other words, the Court seem to suggest that the mere assertion of permanent control, void of annexation and denial of SD could legally possibly render the occupation illegal. Excited to hear your view on this, Marko Milanovic.

    Harrison Milton says

    August 30, 2024

    Thanks for the interesting read! While I completely understand why the Court did not explicitly address Israel's claim of self-defence, doing so would have been crucial for potential future cases like the scenario you gave. I read para. 261 as invalidating the claim of self-defence regardless of annexation, though as you mention other legitimate readings can suggest otherwise and that criteria for self-defence may still apply.

    On Andrew's comment above I have a few issues Judge Sebutinde's application of the principle of uti possidetis juris:
    - 'Area of Jurisdiction and Powers Ordinance, 5708-1948' in Israeli law differentiates between the State of Israel as it existed on 15/05/1948 and 'Palestine' in its annexations of territories from 22/09/1948 onwards. To me this suggests a recognition of different statuses for territories acquired post-independence that goes against uti possidetis juris as Israel was not claiming to be the continuing state of 'Palestine'.
    - Given Israel's Declaration of Independence does also refer to UNGA 181 and Eliahu Epstein's letter to Harry S. Truman on that day stating that the State of Israel existed "within frontiers approved by the General Assembly of the United Nations", could we assume that the initial borders of Israel were those of the partition plan despite the resolution itself being non-binding? My argument for this would be to view Resolution 181 as establishing an internal division within 'Palestine' from 29/11/1947 onwards, upon which Israel declared independence on 14/05/1948.
    - If so, per 'Area of Jurisdiction and Powers Ordinance, 5708-1948' everything up to the Green Line was annexed by Israel, including West Jerusalem as 'Palestine' in this case can be defined as the entire former mandate outside the Jewish State defined in Resolution 181 (this would make the legality of the ordinance debatable potentially). This implies that the State of Israel is a new state from the former 'Palestine', and that 'Palestine' was still a state on 15/05/1948
    - Obviously this interpretation only holds if you consider that Palestine was a state of some kind, which I believe to be the case given it's Class A status - though as you point out sovereignty isn't really clear here. Maybe the termination of the mandate could be interpreted as that the government of Palestine was now responsible for itself (what government is a good question though), therefore sovereign? Then it goes to a question of exactly what happened to 'Palestine' after 1948? Is the modern post-1988 State of Palestine the same state or something else entirely? These are all questions I have no answer for, and as you said the Court completely ignores the question of what the "other" state Israel is annexing from in the OPT exactly is.

    Eugenio Carli says

    August 30, 2024

    Dear Marko, as I see it, self-defence and law of occupation operate at two distinct legal levels. Besides the necessity to maintain consensus among the judges – as you rightly mentioned –, I think that the Court decided not to say anything explicitly about Israel’s claim that its continued presence is justified by self-defence for this very reason in particular, namely that self-defence in the Middle East scenario is a distinct and not strictly functional issue with respect to the (unlawful) presence of Israel in the Palestinian territory. Consequently, it simply does not apply, nor is it of any relevance.

    The right of self-defence is exercised for as long as the attacked State is defending itself. But if the conduct of that State, in continuing to use military force against the attacker, goes beyond what is strictly necessary to its defence (as Israel apparently did), and it does have further military purposes (eg., occupation and annexation of the territory of the attacker), the legal scenario is no more about self-defence. It’s about the use of force (in general and for acquiring territory), HRL, IHL, and law of occupation in particular. Even assuming that ‘wars of self-defence’ are conceivable (a point which I am not entirely convinced of), the condition remains of keeping the exercise of that right within its scope. For those reasons, I am not persuaded – unlike Judge Sebutinde –, that an occupation can’t be unlawful when it results from the exercise of self-defence nor do I see the necessity to assess the legality of occupation against a lawful exercise of self-defence, as Judges Nolte and Cleveland did. Again, those are different notions operating at different levels and having different functions.

    In my perspective, it is hard to consider the occupation of a disputed territory as a necessary (and proportionate) act to justify self-defence. It may be the case that an occupation follows lawful acts of self-defence, but that does not mean that the occupation is somehow legitimized or that it is ‘part and parcel’ of the exercise of self-defence. I think that it is too wide a reading of Article 51 that relates to controversial and conjectural concepts such as ‘prevention’ and ‘(potential) threat’. Such a tension emerges from Judge Yusuf’s separate opinion, where he holds that “[a] prolonged occupation cannot be justified […] unless the conditions for lawful self-defence continue to exist throughout the period of occupation. In other words, the occupying Power must be able to show, at all times, that the maintenance of its prolonged occupation is due to military necessity, which has to be proportionate to legitimate military objectives”, but then he stresses that “self-defence rationale cannot be invoked against a potential or future threat that might emanate from the occupied territory” and that “self-defence cannot be allowed to prolong unlawfully a belligerent occupation”.

    In the hypo, ‘ideal’ international law would dictate the following: B lawfully defends itself and repels A’s armed attacks, as long as A continues to attack. However, B can’t lawfully occupy, let alone acquire, XB in the exercise of its right to self-defence. The fact that XB is considered ‘necessary’ (On what basis? From whose perspective?) to prevent any further attacks by B and to secure XA has nothing to do with, and does not impair, the right of A to exercise its right of self-defence in any case. The ‘necessity’ standard relates to the absence of other practicable alternative means of redress for the attacked state(’s survival), and not to strategic considerations and only potential threats. As I see it, that would be tantamount to some sort of preventive self-defence, in which the threat exists only in abstracto. Therefore, in my view, those elements can’t be used by A to construe a valid justification for occupying (let alone acquiring) XB. In that case, the conduct of XB is to be assessed against other rules of international law, including the prohibition of the use of force and, subsequently, the law of occupation.

    As to the questions you put, I would say that probably it is not A’s continued presence in XB to be illegal in itself, since that depends on how A governs the territory, and it must be assessed over a certain time (as in the Israeli case), inasmuch as occupation – as you pointed out – is neither lawful nor unlawful per se, but it just exists. However, it may be the case that A violated the prohibition on the use of force in the part of its offensive conduct exceeding self-defence; that it violated the prohibition of acquisition of territory through the use of force; that it breached IHL in the effort to occupy XB (if applicable); that is breaching the right to self-determination of X-ites, etc. That is what the Court wanted to stress in the AO in my understanding: the ‘sustained abuse’ by Israel of its position as an occupying power is an abuse since it was performed in violation of the prohibition of the acquisition of territory by force and of Palestinians’ right to self-determination, and it is sustained since it has persisted for a long time. Certainly, such an ‘abuse’ prevails over A’s claim to self-defence against B.

    Tamara Tamimi says

    August 31, 2024

    This is not a simpler scenario. This is an inaccurate scenario, if not even misleading. I make this claim for several reasons:
    - First, you are using the situation that started in Gaza on October 7, 2023 as an example for a case looking at military occupation by Israel commencing in 1967. The example you use has completely different circumstances and considerations in law.
    - Second, your scenario starts the clock on October 7, 2023, which negates the context and disfigures the facts of reality as they stood on October 6, 2023 not only in Gaza but also in the West Bank, including East Jerusalem.
    - Third, it negates Israel's colonial rule and continued endeavours of settler colonialism. Under this accurate framing, Palestinians would be the group who is entitled to self-defence and resistance, including armed resistance within the parameters set under international law.
    -

    Marko Milanovic says

    August 31, 2024

    Many thanks to everyone for the comments.

    Dear Tamara, in response to your comment in particular, the hypo is not meant to be representative of Israel/Palestine. A hypo can't be 'inaccurate' - and it certainly isn't misleading, because again it is not meant to represent I/P, as I expressly said in the post. The hypo is simply meant to tease out the relationship between ad bellum self-defence and the notion of an abuse of the occupying power's position, as set out in para. 261 of the Palestine AO.

    The hypo does rest on an assumption, which is that para. 261 sets out a proposition of general principle, rather than providing a unique solution to the unique situation of Palestine. Again, the core point raised by the hypo - which I realize is disputed for various reasons in the Palestine situation - is whether an otherwise valid self-defence claim can be vitiated by a violation of the norm against annexation and/or a violation of the right of peoples to self-determination.

    So, for example, were Ukraine, which is now the occupying power of at least some of the Kursk region in Russia, and has become the occupying power through the exercise of its right to self-defence, to tomorrow proclaim that it is annexing the Kursk region - would, in this scenario, Ukraine's abuse of its position as an occupying power mean not only that its claim to annexation is invalid (which everyone would agree with), BUT ALSO that it had to withdraw from the occupied territory, i.e. that its continued presence there would not be unlawful, DESPITE the fact that it has a valid self-defence claim against Russia.

    I hope this is clearer.