UN General Assembly Committee Adopts Resolution Requesting Second Advisory Opinion from ICJ on Occupied Palestinian Territory

On 10 November 2022, at the Seventy-seventh session of the UN General Assembly, Special Political and Decolonization Committee (Fourth Committee), the State of Palestine- in a move which skirted largely under the media radar- tabled a resolution under Item 47 calling for an International Court of Justice (ICJ) Advisory Opinion on the legal status of Israel’s occupation of the Palestinian territory and the consequences arising from it. Given the prolonged nature of the occupation, now in its 55^th year, and what the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and in Israel, deems a “permanent” occupying administration, with generations of Palestinians growing up under the oppressive restrictions of military rule, expanding settlement construction and purported de facto and de jure annexations, and a plethora of recent human rights reports indicating the existence of an apartheid regime, a second advisory opinion is not just urgent, for Palestine, it is existential.

The resolution was adopted on Friday 11^th, with 98 States voting in favour, 52 abstaining and 17 against. A handful of European States abstained from the vote, including Bulgaria, Denmark, France, Greece, Latvia, the Netherlands, Slovakia, Spain and Sweden. The United States voted against, stressing that “a negotiated two-State solution remains the best way to ensure Israel’s security and fulfil the Palestinian desire for a State of their own”. More vehemently, Israel warned that the State of Palestine was exploiting the Court, “as a weapon of mass destruction in their jihad war of Israel demonization”. Other States voting against included, Australia, Austria, Canada, Estonia, and Germany, amongst others. Interestingly, both the Ukraine and Russian Federation voted in favour of the resolution. The draft resolution will now be submitted for voting to the General Assembly plenary on December 22^nd, following a Fifth Committee review of the Programme Budget Implications.

Significantly, if adopted in December, this will be the second Advisory Opinion of the ICJ on the Occupied Palestinian Territory (OPT). The previous landmark Advisory Opinion in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory delivered on 9 July 2004, and tabled at the UN General Assembly on 8 December 2003, almost twenty years ago, found Israel had breached international obligations in constructing a Wall in the OPT, including the right of the Palestinian people to self-determination. Further, the obligations breached “included certain obligations erga omnes” incurring legal consequences as regards third States (para. 154-155). Prior to this, the Permanent Court of International Justice heard the contentious Case of the Mavrommatis Palestine Concessions in 1924, regarding the obligation of the de facto British administrator in Mandate Palestine to give effect to the previous electricity concessions concluded by the Ottoman government. A contentious case between the State of Palestine and the United States – Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America) – alleging that the relocation of the United States embassy to Jerusalem in May 2018 is in breach of the Vienna Convention on Diplomatic Relations, is pending.

Resolution for Advisory Opinion on Legality of Occupation

Para. 18 of the resolution of the UN General Assembly’s Special Political and Decolonization Committee requests an ICJ Advisory Opinion on the following questions:

(a) What are the legal consequences arising from Israel’s ongoing violation of the right of the Palestinian people to self-determination, its prolonged occupation, settlement and annexation of the Palestinian Territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?

(b) How do Israel’s policies and practices referred to in paragraph (a) affect the legal status of the occupation and what are the legal consequences that arise for all States and the United Nations from this status?

Critically, the resolution which questions whether the legal status of the occupied territory has been affected by Israel’s denial of self-determination of the Palestinian people, the construction of settlements and annexation, measures and demographic changes to the Holy City of Jerusalem, and discriminatory legislation mainly pivots on one key consideration- the legality of Israel’s belligerent occupation of the Palestinian territory and the subsequent legal consequences that arise.

Jus in Bello v Jus ad Bellum Arguments on the Illegality of Occupation

As the ICRC has suggested:

“[r]eferences to ‘unlawful occupation’ can be misleading, as they confuse the issue of the lawfulness of the resort to the use of force with that of the rules of conduct to be applied once armed force has been used, and therefore also obscure the fundamental distinction between jus ad bellum and jus in bello”.

Notwithstanding, a number of important albeit equivocal contributions have been made on the legal status of occupation, which can be rather rudimentarily divided into proponents of a use of force argument (for example, Wilde,  Hughes, and Azarov) and those advancing jus in bello and/or jus cogens norms arguments for the illegality of occupation (Lynk, Imseis, Naftali et. al., and Ronen).

Proponents of a use of force argument submit that the occupation may be illegal on the basis that Israel’s invasion, and subsequent continuing occupation of the Palestinian territory, no longer meet the criteria of necessity and proportionality for self-defence under Article 51 of the UN Charter, and therefore amount to an unlawful act of aggression. Those advancing jus in bello arguments suggest that Israel’s breach of fundamental principles of international humanitarian law, such as the Occupying Power’s obligation to administer the territory temporarily, in good faith and in the best interests of the occupied population, render the occupation illegal. Further, proponents of jus cogens arguments suggest that a belligerent occupation may become illegal based on violations of jus cogens norms alone. For example, the Occupying Power’s systematic denial of the right of self-determination, or its acquisition of occupied territory through the use of force by means of annexation, may amount to acts which consequently, taint the legality of the occupation.

Wilde examines “the question of the existential legitimacy of the occupation itself”, through an analysis of the jus ad bellum on self-defence and whether the occupation amounts to a continuing act of aggression, which must be thus “terminated”, in addition to the concomitant application of the law on self-determination. Ostensibly, a finding of illegal occupation may have important consequences for bringing the occupation to an end, although Hughes suggests that the termination of belligerent occupation “is the corollary of temporariness” and the obligation to terminate is already implicit in the jus in bello. Azarov similarly notes that the occupier must justify its continued use of force and where the objective of the force is annexation, the transformation of territory, or denial of the right of self-determination, the occupation may be considered unlawfully prolonged, through an illegal use of force.

Eminent UN Special Rapporteur, Michael Lynk has proposed a novel and ground-breaking  four-point test for determining whether an occupation has crossed “a bright red line into illegality”, including whether for example, (i) the Occupying Power has annexed the territory, (ii) the occupation breaches the principle of temporariness,  (iii) the Occupying Power fails to act in the best interests of the occupied population, and (iv) where an Occupying Power conducts the administration of territory in bad faith, by for example, building settlements. Similarly, Naftali et. al., offer a normative approach, introducing domestic law standards such as reasonableness, to determine if the occupation is overstepping the bounds of temporariness, or if the Occupying Power in in breach of the principle of trust and self-determination, then the occupation is rendered illegal per se. In a different vein, Imseis argues that Israel’s occupation of the Palestinian territory is illegal because it systematically violates jus cogens norms of international law, including:

“the prohibition on the acquisition of territory through the threat or use of force, the obligation to respect self-determination of peoples, and the obligation to refrain from imposing alien regimes inimical to humankind, including of racial discrimination”.

Generally as Judge Kooijmans opined in Armed Activities, “no distinction is made in the jus in bello between an occupation resulting from a lawful use of force and one which is the result of aggression”. Nevertheless, Ronen suggests in abstracto that the Occupying Power’s use of prohibited weapons, when establishing a belligerent occupation, may give rise to illegality jus in bello. That being said, she surmises, “[t]here is no international practice regarding an occupation achieved directly and exclusively through violation of jus in bello”.

In summary, although the concept of occupation is one that is derived from the jus in bello, the request for an Advisory Opinion clearly invites a broad analysis of both apposite jus ad bellum and jus in bello considerations.

Discriminatory Legislation and Measures

At this point, it is also worth noting that the “related discriminatory legislation and measures” referred to in the Special Political and Decolonization Committee resolution may potentially include the types of measures highlighted by the Committee on the Elimination of Racial Discrimination (CERD) in its 2019 Concluding Observations to Israel, concerning policies and practices of racial segregation and apartheid, “which severely and disproportionately affect the Palestinian population in Israel proper and in the Occupied Palestinian Territory” (para. 23). Notably, the Situation in the State of Palestine, remains under investigation at the International Criminal Court, where evidence of reasonable basis to believe that the crime against humanity of apartheid may have been committed in the occupied territory, has been submitted by civil society organisations to the Prosecutor. An Inter-State communication between the State of Palestine and Israel to the CERD committee, on discriminatory policies and practices in the OPT is also under examination at the Conciliation Commission. There, the State of Palestine referred to its right to submit a communication on violations of the Convention, “against ethnic Palestinians living in ‘Israel proper’”, noting that the ICJ had previously affirmed the extraterritorial application of the Convention, an argument that may well surface again in light of the current question submitted to the ICJ (section 2).

Time to Decolonise

After decades of settlement construction and expansion under the pretext of a temporary belligerent occupation, the resonance of the resolution being passed at the Special Political and Decolonization Committee is significant. In 2007, UN Special Rapporteur for the Occupied Palestinian Territories, John Dugard questioned:

“[w]hat are the legal consequences of a regime of prolonged occupation with features of colonialism and apartheid for the occupied people, the occupying Power and third States? It is suggested that this question might appropriately be put to the International Court of Justice for a further advisory opinion”.

More recently, the report of UN Special Rapporteur Albanese, called on States to “demand an immediate end to the illegal Israeli occupation… while refraining from making withdrawal subject to negotiation between Israel and Palestine”. Should the Special Political and Decolonization Committee resolution be adopted at the General Assembly plenary, a subsequent finding on the status of occupation will finally provide legal clarity on these issues with legal consequences for decolonisation. For the State of Palestine, the International Court of Justice offers “a peaceful and legitimate choice” for freedom.