Transcending the Jus ad Bellum/Jus in Bello Divide: “Illegal Occupation” and “Unlawful Presence” in the ICJ Advisory Opinion on the Occupied Palestinian Territory

The International Court of Justice’s finding in the Advisory Opinion on the Israeli occupation of the Occupied Palestinian Territory that Israel’s continued presence in the Occupied Palestinian Territory (OPT) is unlawful raises questions about potential implications for the law of occupation. In this blog post, I argue that while the ICJ’s reasoning is based on norms external to the law of occupation, in fact the separation between on one hand such an “external” argument that renders a continued presence of the occupying power “unlawful” and on the other hand the view of occupation as illegal based on the fact that it undermines the law of occupation itself, is artificial.

In paragraph 105 of the Opinion, the Court held that by virtue of its status as an occupying power, an occupying power bears a duty to administer the territory to the benefit of the local population. The nature and scope of the occupier’s powers are premised on the assumption that occupation is a temporary situation to respond to military necessity, and the occupying power cannot transfer title of sovereignty to itself.

In the 2005 article “Illegal Occupation” that I co-authored with Orna Ben-Naftali and Keren Michaeli (and later in my own book The Writing on the Wall), we identified three legal principles (occupation does not confer title and sovereignty to the occupying power; the occupying power has to manage the territory for the benefit of the local population; and occupation is temporary, it may be neither permanent nor indefinite) as fundamental to the law of occupation. We argued that it is in relation to these basic tenets of the law of occupation that the legality of any particular occupation must be assessed. On this basis, we claimed that the Israeli occupation in the OPT has become illegal, as it has violated its own intrinsic principles.

The International Court of Justice (ICJ) seems perfectly aligned with us now in articulating the three basic principles of the law of occupation.

However, its reasoning about Israel’s unlawful presence in the OPT and its duty to end the occupation is explained as anchored in norms external to the law of occupation. In Paragraph 109, the Court states correctly that the fact that an occupation is prolonged does not in itself change its legal status under International Humanitarian Law (IHL). However, the Court holds, in order to be permissible, the exercise of effective control by an occupier must be at all times consistent with the prohibition on the threat or use of force, as well as with the right to self-determination. Accordingly, the Court concludes that Israel’s annexational policies and practices seek to acquire sovereignty over an occupied territory, contrary to the prohibition on the use of force in international relations and the principle of non-acquisition of territory by force (Paragraph 179). It also finds that Israel’s policies and practices violate the right of the Palestinians to self-determination and violate Israel’s obligation to respect it (Paragraph 243).

Part IV of the majority holding is entitled, “Effects of Israel’s Policies and Practices on the Legal Status of the Occupation.” In its second paragraph, the Court notes that “Israel has adopted certain policies and practices which are not in conformity with the legal regime governing occupation.” The Court then goes on to say that it is “of the view that these policies and practices, and the creation of facts on the ground have significant effects on the legal status of the occupation and thereby on the legality of the continued presence of Israel in the Occupied Palestinian Territory” (Paragraph 245). Then, addressing the UN General Assembly’s request to give the Advisory Opinion, the Court says that “the scope of the first part of the second question concerns the manner in which Israel’s policies and practices affect the legal status of the occupation, and thereby the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory” (Paragraph 250).

In these statements, we see that the Court considers the “legal status” of the occupation and the “legality of the continued presence of Israel” as occupier in the OPT to be tightly connected. The following paragraph (Paragraph 251) is particularly noteworthy:

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.

Specifically regarding temporality, the Court writes that “the law of occupation does not set temporal limits that would, as such, alter the legal status of the occupation” and that “the legality of the occupying Power’s presence in the occupied territory must be assessed in light of other rules,” noting again the ones regarding the prohibition of territorial acquisition by force and the right to self-determination (Paragraph 109). Based on the above, the Court concludes that Israel has annexed large parts of the OPT, thus attempting to acquire sovereignty over it, in violation of the prohibition on the acquisition of land by force. This reality affects the legal status of the occupation and therefore of Israel’s continued presence (Paragraph 179). The court holds that Israel’s violations of the prohibition on the acquisition of territory by force and of the right to self-determination amount to an abuse by Israel of its position as an occupying power, in a way that renders its presence in the OPT unlawful (Paragraph 261).

This line of reasoning has led commentators to argue that the Court’s ruling about the illegality of Israel’s presence is not based on a determination of the illegality of occupation (in general, and specifically regarding the Israeli one). This argument is anchored in the Court’s reliance on norms external to the law of occupation – jus ad bellum norms regarding the prohibition on acquisition of territory by force and therefore of annexation, and the rules on self-determination, which are also external to the law of occupation.

In a blog post, Marko Milanovic opines that as a matter of IHL occupation is neither legal or illegal; it simply exists or not, but can be legal or illegal as a matter of other rules of international law. In his view, the fact that an occupation is conducted in a manner that categorically violates the law of occupation has no bearing on its status as a matter of IHL. However, it can be “legal or illegal” as a matter of other rules of international law. Accordingly, based on paragraph 251 cited above, Milanovic praises the Court for explaining that the legality of the occupation is not to be judged against IHL, which in his view contains no rules on the matter, but rather against other rules of international law. However, Milanovic finds the ICJ’s analysis lacking in that given the Court’s determination on jus ad bellum as a basis for illegality, it remained silent on the question of Israel’s possible self-defense arguments – arguments which Milanovic thinks the Court could have rejected, but should have addressed.

Against this analysis, I suggest a different reading of the relationship between the law of occupation, as part of jus in bello, and other international law norms, be they one of jus ad bellum or of self-determination. Recall that the Court itself mentioned the basic premises of the law of occupation; namely, that (1) occupation does not confer title and sovereignty to the occupying power; (2) the occupying power has to manage the territory to the benefit of the local population; and (3) occupation is temporary. These principles reflect general norms of international law, but they are also central and intrinsic to the law of occupation itself and are reflected in various positions laid out in both the Hague Regulations and the Fourth Geneva Convention. They are defining features which are key to the nature of occupation as a legal institution, which is supposed to be distinct from regimes that today are considered illegal per se, such as conquest and colonialism; unlike these regimes, occupation is supposed to be a legal institution with restrictions in place that reflect self-determination and the prohibition on acquisition of territory by force.

Because the three above-listed principles are central to the law of occupation on one hand, but derive from the principles on the prohibition of acquisition of territory by force and self-determination on the other hand, I argue that the question of the legality of occupation transcends the division between jus in bello and jus ad bellum. This is apparent in the explicit connection the Court itself makes between “legal status” of the occupation and the “legality of the continued presence of Israel.” This also explains why the discussion of Israel’s possible self-defense arguments would not have changed the picture: the law of occupation intrinsically reflects principles of general international law, and no legitimate self-defense arguments can justify an occupation that upended what occupation should be in international law; i.e., being temporary, being managed for the benefit of the local population, and not granting sovereignty – all principles that reflect the rules of international law about the right to self-determination and the prohibition on the acquisition territory of land by force. Thus, the separation between an argument on illegality of the occupation based on the law of occupation itself as part of jus in bello, and on general international law including jus ad bellum, is artificial in my view.

In illustrating the artificial nature of this separation, I point to Ralph Wilde’s analysis of the question of the legality of occupation. Wilde argues that the requirement that an occupation be temporary arises from general international law and points to jus ad bellum rather than jus in bello, as well as self-determination, as central to this debate. But this line of argument may obscure the view of how the law of occupation itself is shaped by these general norms.

Specifically, Wilde, who argues for illegality based on self-determination, claims that our analysis in “Illegal Occupation” does not give weight to self-determination, and that the “treatment of the right of the Palestinians people to self-determination in the article is limited to a footnote.” However, the term “self-determination” appears 42 times in the text and footnotes of “Illegal Occupation,” and our thesis there is greatly based on how the principles of the law of occupation, whose violation make Israel’s occupation of the OPT illegal, reflect this norm. The idea that sovereignty and title are not vested in the occupying power is explained to mean today “in view of the principle of self-determination” that sovereignty is vested in the people under occupation. The principle that the territory must be managed to the benefit of the people under occupation is also anchored in the principle of self-determination. Further, we explain in the article that an occupation that violates the three basic fundaments defies the principle of self-determination and is illegal. This point illustrates in my argument that the distinction between whether the occupation is illegal on the basis of the law of occupation itself, or because of the “external” norms of non-acquisition of territory by force and self-determination, is artificial: the law of occupation is shaped by these norms and the illegality of occupation derives from them. The ICJ’s discussion of the legality – or rather illegality – of Israel’s continued presence n the OPT as linked to the “legal status of the occupation” further illustrates this artificiality, even if the ICJ, like on a few other points, remained somewhat vague on this link and on the question of “illegal occupation.”

To be clear, and as we argued in “Illegal Occupation” – declaring an occupation to be illegal does not mean that the occupying power need not, as long as the occupation continues, abide by the law of occupation. In fact, the ICJ reflected the same line of thinking in determining that the conclusion that Israel’s continued presence in the OPT is illegal does not release Israel from its obligations under the law of occupation.

What, then, is the significance of holding an occupation “illegal”? The need to qualify an occupation as illegal is important in order to prevent occupations, which are not illegal per se under international law, from becoming, under the cloak of “temporality,” the emperor’s new clothes of conquest and colonialism. Seeing the link between the basic premises of the law of occupation, which make an occupation illegal when they are violated, and the external norms which these premises reflect, means a rejection of the idea that occupation is a “merely factual” situation – an approach apparent in the words of Meir Shamgar, when he was Israel’s Attorney General. Shamgar said that occupation is a “factual situation” which, pending an alternative political or military situation, from a legal perspective could “continue indefinitely.” Against this approach, and notwithstanding the separation between the “internal” and “external” aspects of this illegality, which I argue to be artificial, the ICJ’s ruling contributed to an understanding that occupation is not just a “factual” situation. Rather, it is a normative one governed by basic premises anchored in general international law, which also comprise the most fundamental norms of the law of occupation itself. Israel’s occupation, typified by settlements and by dispossession of the local population, by annexational practices and negation of Palestinian self-determination, violates the norms that govern it and must end.