URU, Alm.del - 2016-17 - Bilag 215: Materiale fra høring om danske investorers ansvar og handlemuligheder i forhold til investeringer i virksomheder med aktiviteter i israelske bosættelser den 1. juni 2017

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June 2017

ISRAEL’S UNLAWFULLY

PROLONGED OCCUPATION:

CONSEQUENCES UNDER AN INTEGRATED

LEGAL FRAMEWORK

Valentina Azarova

SUMMARY

An unlawfully prolonged occupation arises

when an occupying state seeks to permanently

transform the international status, government

or demographic character of a foreign territory,

including through

de jure

de facto

annexation.

Israel’s continued use of force to prolong its occupation

is not justified by military necessity, but reflects

government-sanctioned policies and practices of

creeping annexation. As such, Israel’s occupation

of Palestine has become unlawfully prolonged.

Diligent enforcement is needed of all

applicable international law, which includes

international humanitarian law, international

human rights law, the laws on the use of force

and on the self-determination of peoples to

further Israel’s withdrawal from the territory.

Third party states and international actors are legally

obligated to ensure non-recognition of Israel’s

internationally unlawful acts. They should be at the

forefront of eforts to further Israel’s compliance with

international law. The EU and other third parties

should use the 50th year of Israel’s occupation to

comprehensively review their dealings with Israel and

Israeli entities, to ensure that they are not recognising

as lawful Israel’s internationally unlawful acts.

June 2017 marks 50 years of Israel’s belligerent occupation

of Palestinian territory, making it the longest occupation

in modern history. The maintenance and expansion of

settlements and associated infrastructure in the West Bank,

the exploitation of natural resources for the benefit of

Israel’s economy, and policies that encourage the transfer

of Israeli citizens into occupied territory and result in the

forcible of transfer Palestinians within and outside that

territory, all point to Israel’s intent to permanently change

the status of Palestinian territory. Fifty years on, Israel has,

in fact, undertaken the

de jure

and

de facto

annexation of

large parts of occupied Palestinian territory.

Military occupation is permitted in international law only if it

is temporary and based on military necessity, but in the case

of Israel’s occupation there is no end in sight. International

law contains clear guidelines on how occupations should

work: a territory must be returned to its temporarily

displaced sovereign, and the Occupying Power must be able

to justify its continued control over the territory at all times

on the basis of military necessity. The Israeli government,

however, shows no indication that it will fully withdraw

from the occupied Palestinian territory and transfer control

back to the Palestinian sovereign.

Governments and legal scholars alike have focused

on the conflict management provisions enshrined in

international humanitarian law (IHL) and international

human rights law (IHRL) in their assessments of Israel’s

actions and their effects. But Israel’s prolonged occupation

of Palestinian territory has not only resulted in pervasive

violations of these international laws, such as the 1949

URU, Alm.del - 2016-17 - Bilag 215: Materiale fra høring om danske investorers ansvar og handlemuligheder i forhold til investeringer i virksomheder med aktiviteter i israelske bosættelser den 1. juni 2017

ISRAEL'S UNLAWFULLY PROLONGED OCCUPATION: CONSEQUENCES UNDER AN INTEGRATED LEGAL FRAMEWORK

Fourth Geneva Convention, it has been based on rejection

of their applicability in the first place.

Attempts by third

states and international actors to enforce IHL and IHRL

have failed to bring about Israel’s compliance because this

partial legal framework neither adequately captures the

legal consequences of continued occupation with the aim of

acquiring the territory, nor generates appropriate remedial

action for such a situation.

The situation in Israel/Palestine today is at a critical juncture.

The Middle East Peace Process (MEPP) has proven a perennial

failure. Meanwhile, Israel has ramped up its settlement-

building activity to some of the highest levels ever seen. A

more diligent application of international law norms beyond

IHL and IHRL is therefore needed to ensure the effective

implementation of international law in the unlawful situation

created by Israel’s prolonged occupation, and to mobilise,

legitimise, and incentivise responses from third parties to

bring the occupation to an end. This paper identifies a legal

framework that foregrounds the obligations of third parties

not to give legal effect to the occupation, and in doing so, may

provide a way forward for ending the occupation.

UN Security Council Resolution 2334 reiterates the

importance of states abstaining from recognising Israel’s

internationally unlawful acts. To do so, they are required

to distinguish between Israeli and Palestinian territory,

and exclude settlement-based entities and activities from

their dealings with Israel. Third party actors – including the

European Union and its member states – have taken notable,

but still insufficient, steps to this effect in recent years. The

EU and its member states have a deep-seated commitment

to the observance of international law, on which their ability

to uphold the integrity and effectiveness of their own legal

order hinges. They should be at the forefront of efforts to

encourage Israel’s compliance with international law, and

further its full withdrawal from Palestinian territory in

order to bring the occupation to an end.

The legal framework identified by this paper reveals how

third parties that are committed to respecting international

law compromise the integrity of their internal legal orders

and public policy commitments by giving effect to Israel’s

internationally unlawful acts in relation to Palestinian

territory. The same framework may be applied to other

ongoing situations of prolonged occupation that resemble

annexation or otherwise permanently transform the

occupied territory, including northern Cyprus, Nagorno-

Karabakh, Transnistria, South Ossetia and Abkhazia,

Western Sahara, and, most recently, Crimea.

What is occupation law?

International law recognises the military occupation of an

enemy’s territory as a legitimate method of warfare. The

law of armed conflict, also known as IHL or jus in bello,

regulates Occupying Powers. The rules governing belligerent

or military occupation − hereafter referred to simply as

‘occupation’ − come into effect as soon as a situation of

occupation exists, as determined by the fulfilment of a series

of criteria enshrined in IHL. There is an occupation when a

state, that is “not the recognised sovereign of the territory”,

gains “effective control” over a foreign territory by force.

Contrary to Israel’s arguments, the applicability of the law

of occupation does not depend on the territory having been

taken militarily from its “rightful sovereign” at the time

when it was first occupied, which in the case of Palestinian

territory was from Jordan and Egypt. This view was also

affirmed by the International Court of Justice (ICJ).

This

specialised body of law only regulates the conduct of an

occupying state and does not assess the legality of the force

it uses during the invasion phase of the occupation, or

the force it uses to maintain its presence in the occupied

territory afterwards.

These assessments are based on the

rules on the use of interstate force, set out in the United

Nations Charter, also known as the

jus ad bellum.

The normative framework governing an Occupying Power’s

actions balances the military necessity of occupation with

the imperative of humanitarian protection of the population

in the occupied territory. The law of occupation allows the

Occupying Power to use force, as long as it is for reasons

of genuine military necessity. In limited circumstances, the

occupier may take steps that seriously infringe the rights of

the population in the occupied territory, such as temporarily

reassigning people’s place of residence to protect them from

harm due to the occupier’s ongoing military operations.

June 2017

2 On other occupations, see: Paul Wrange, “Occupation/Annexation of a Territory:

Respect for International Humanitarian Law and Human Rights and Consistent EU

Policy”, European Parliament, July 2015, available at http://www.europarl.europa.eu/

thinktank/en/document.html?reference=EXPO_STU(2015)534995; “Illegal Economic

and Other Activities in the Occupied Territories of Azerbaijan”, Azerbaijan Ministry of

Foreign Afairs, March 2016, available at http://mfa.gov.az/iles/ile/MFA_Report_on_

the_occupied_territories_March_2016_1.pdf; “Third Quarterly Report (July - September

2016) of the Ministry of Foreign Afairs of Georgia on the Human Rights Situation in

the Occupied Regions of Georgia”, the Ministry of Foreign Afairs of Georgia, available

at http://smr.gov.ge/Uploads/VII__1b08da4c.pdf; “Rights in Retreat: Abuses in

Crimea”, Human Rights Watch, 17 November 2014, available at https://www.hrw.org/

report/2014/11/17/rights-retreat/abuses-crimea; Thomas Hammarberg, “UN Special

Expert on Human Rights in the Transnistrian Region of the Republic of Moldova, Report”,

United Nations, 14 February 2013; “Occupation and Other Forms of Administration

of Foreign Territory”, the International Committee of the Red Cross, 11 June 2012,

available at https://www.icrc.org/en/publication/4094-occupation-and-other-forms-

administration-foreign-territory-expert-meeting.

3 Article 42, Hague Regulations 1907. Article 2(2), Geneva Conventions 1949; and

“Commentary: Convention (I) for the Amelioration of the Condition of the Wounded and

Sick in Armed Forces in the Field. Geneva”, the International Committee of the Red Cross,

12 August 1949, pp. 115, para 324, available at https://ihl-databases.icrc.org/applic/ihl/

ihl.nsf/INTRO/365?OpenDocument.

4 “Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territories: Advisory Opinion, 2004”, the International Court of Justice, 9 July

2004, 136, para. 78, available at available at http://www.icj-cij.org/docket/index.

php?p1=3&p2=4&case=131&p3=5 (hereafter, “ICJ Wall Opinion”). See also: Meron, “The

West Bank and International Humanitarian Law”.

5 See, John Quigley,

The Six-Day War and Israeli Self-Defense: Questioning the Legal

Basis for Preventive War,

(Cambridge: Cambridge University Press, 2013).

6 Article 41, Fourth Geneva Convention, 1949.

ECFR/216

www.ecfr.eu

1 Theodor Meron, “The West Bank and International Humanitarian Law on the Eve of the

Fiftieth Anniversary of the Six-Day War”,

American Journal of International Law,

10 May

2017, pp. 4-5, available at https://www.cambridge.org/core/journals/american-journal-

of-international-law/article/west-bank-and-international-humanitarian-law-on-the-eve-

of-the-iftieth-anniversary-of-the-sixday-war/E1D4F9F5B3C43C943D9C3F31EABF79B3.

(hereafter, Meron, “The West Bank and International Humanitarian Law”).

But the specialised rules of occupation law also create

obligations to respect and provide for the fundamental

and inviolable guarantees of ‘protected persons’, i.e. the

local population in the occupied territory.

Having ousted

the sovereign and stepped into its shoes, the Occupying

Power is legally obligated to fill the governance vacuum and

provide minimum protections to the population under its

control. Occupation law restricts what an Occupying Power

can do, with the aim of protecting individual rights, and the

level of such restrictions and protections is usually higher

in times of calm occupation than during active hostilities.

The Occupying Power is under an obligation to ensure and

maintain civil life and public order, while respecting the

local laws and institutions.

However, the nature of the authority exercised by the

occupier in the occupied territory is purely administrative.

The occupying state is forbidden from taking decisions that

are expected to detrimentally affect the ability of the rightful

sovereign to regain control over the territory, or the future

exercise by the local population of their internationally

recognised right to self-determination.

Occupation law is premised on the idea that occupations

are inherently temporary, are at all times based on military

necessity, and eventually involve the transfer of effective

control over the territory back to the ousted sovereign at

the end of hostilities. The presumption that occupation is

temporary and exceptional is meant to act as a bulwark

against

de jure

de facto

annexation.

Attempts to annex a

territory would contravene the international law prohibitions

on the acquisition of territory through the use of force

against the territorial integrity and political independence

of the occupied territory.

An Occupying Power is required

to safeguard the natural resources of the occupied territory,

and permitted to exploit them only for the benefit of the local

population, and exceptionally for the purpose of covering

reasonable expenses of its military administration.

For the

same reason, occupation law prohibits the occupier from

artificially creating demographic changes there, for example

by transferring its civilian population into the occupied

territory

and transferring the local population out of the

territory, or forcing them to move within it.

The effectiveness of occupation law as a regulatory framework

depends on the occupying state’s willingness to respect

certain bright-line rules contained in other international

law norms. Besides the prohibition of territorial acquisition

by force,

these includes the right to self-determination

of peoples,

and the prohibition on racial discrimination,

as well as other causes of persecution enshrined in

International Criminal Law (ICL).

ICL provides a set of

rules and procedures that facilitate the enforcement of the

most serious violations of IHL and IHRL.

While occupation law grants the Occupying Power some

leeway for actions required by military necessity, the rules

on the interstate use of force (jus

ad bellum)

impose a

different test regarding the necessity of the occupation itself.

Under this body of law, the occupier must, at all times, be

able to justify its continued use of force to maintain the

occupation on the basis of military necessity, which must

be proportionate to its legitimate military objectives.

For

instance, an occupation may be legitimate if it is required

to prevent a belligerent party from launching imminent

attacks in the context of active hostilities on the territory of

the occupying state, if the latter were to withdraw. However,

an occupying state is prohibited from prolonging an

occupation solely to “impress upon the enemy the necessity

of submitting to terms of peace.”

The rules of occupation law are necessarily consistent with

broader international law principles, which tightly regulate

the exceptional nature of belligerent occupations in the

context of international armed conflict. These bodies of

law affirm the temporary nature of occupation and the

duty-bound administrative role of an Occupying Power.

As such, occupation law renders null and void any consent

given by local representatives of the occupied population

for the occupier to revise the institutions or system of

government of the territory, or the international status

of the territory through annexation.

It also prohibits

any other measures that would permanently compromise

the future rights of the local population. To protect a

people’s right to self-determination, the resolution of any

‘final status’ issues, as they are referred to in the Israeli-

Palestinian context, including the return of refugees and

any changes to the pre-1967 borders, is deferred until the

end of occupation. Relegating this process to the end of the

occupation is meant to prevent the occupier from coercing

local authorities into ceding territorial or other sovereign

rights while under the gun.

15 Article 2(4), UN Charter. The only exceptions to the use of force are the right to self-

defense (Article 51) and an explicit authorisation to that efect by the Security Council

(Chapter VII).

16 Article 55, UN Charter; Articles 1 of the International Covenant on Civil and Political

Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights

(ICESR).

17 “‘Persecution’ means the intentional and severe deprivation of fundamental rights

contrary to international law by reason of the identity of the group or collectivity”; Articles

7(2)(g), Rome Statue of the ICC.

18 “Case Concerning Military and Paramilitary Activities in and against Nicaragua

(Merits) (Nicaragua v. United States)”, (1986) ICJ Rep. 14, 94; Yoram Dinstein,

War,

Aggression and Self-Defense

(Cambridge: Cambridge University Press, 2011) para. 607

(hereafter, Dinstein,

War Aggression and Self-Defense).

19 Hersch Lauterpacht (ed),

Oppenheim’s International Law,

7th edition, 1948, p. 432.

20 Yoram Dinstein,

The International Law of Belligerent Occupation,

(Cambridge,

Cambridge University Press, 2009), pp.55-60. (hereafter, Dinstein,

The International

Law of Belligerent Occupation).

7 Articles 27 and 47, Fourth Geneva Convention, 1949. See also, Eyal Benvenisti,

The

International Law of Occupation,

(Oxford: Oxford University Press, 2012), pp.89-

103 (hereafter, Benvenisti,

The International Law of Occupation).

See also, Salvatore

Fabio Nicolosi “The Law of Military Occupation and the Role of De Jure and De Facto

Sovereignty”,

Polish Yearbook of International Law,

2011, Vol.31, pp.165-187, available

at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2218606. (hereafter, Nicolosi,

“The Law of Military Occupation”).

8 Article 1(4), Additional Protocol I to the Geneva Conventions, 1977.

9 Article 43, Hague Regulations, 1907. Article 64, Fourth Geneva Convention IV.

10 Nicolosi, “The Law of Military Occupation”.

11 Article 2(4) and (7) UN Charter, 1945; R.Y. Jennings,

The Acquisition of Territory

in International Law,

(Manchester University Press, 1963). (hereafter, Jennings,

The

Acquisition of Territory in International Law).

12 Article 55, Hague Regulations 1907. See also: James Steward, “Corporate War Crimes:

Prosecuting the Pillage of Natural Resources”, Open Society Justice Initiative, September

2011, available at https://www.opensocietyfoundations.org/reports/corporate-war-

crimes-prosecuting-pillage-natural-resources.

13 Article 49(6) Fourth Geneva Convention 1949.

14 Article 49(1), Fourth Geneva Convention 1949.

ISRAEL'S UNLAWFULLY PROLONGED OCCUPATION: CONSEQUENCES UNDER AN INTEGRATED LEGAL FRAMEWORK

Occupation law was codified in IHL before modern human

rights treaties, which means that IHRL fills in many of the

gaps left by IHL’s minimal provisions on the protection

of the population in occupied territory.

In all cases, to

protect against revisions and transformation of the territory

prohibited by IHL, the application of IHRL to the population

in the occupied territory must be predicated on the full

implementation of IHL rules. An approach that seeks to

apply IHRL without being based on respect for IHL creates

protection gaps of its own.

Occupying states have used human rights to justify the

adoption of transformative measures in an occupied territory

that vastly exceed the narrow mandate granted to them in

IHL.

This is especially the case when it comes to an occupier’s

legal obligation to maintain the laws and institutions in force

prior to the occupation.

The deployment of human rights

concerns to actually further a transformative agenda through

occupation can encroach on the present and future rights of

the population in the occupied territory, especially when the

Occupying Power has undertaken to change the territory’s

demographic character by transferring its own civilians there,

in violation of IHL rules.

In practice Israel has done just this – using human rights-

based argumentation to protect the settler population in

the occupied territory. The Israeli Supreme Court applies a

balancing test to adjudicate between settlers and Palestinians

claims under a pretence of equal rights; treating Israeli

citizens as elevated constitutional subjects and denigrating

Palestinians for the alleged security threat they represent.

In so doing, Israel actively undermines the prohibition placed

on its nationals’ presence in the occupied territory.

by the Occupying Power to maintain the occupation.

This

means that an occupation may be unlawfully prolonged and

administered, but not unlawful in itself.

The legality of an occupation is determined by the

underlying purpose of the occupier’s use of force: whether

the occupier uses force to undertake an occupation with

concrete military objectives, to annex parts of the territory,

or otherwise seeks the transformation of the status of the

territory. This prohibition covers any use of force that might

affect the local population’s internationally recognised

right to self-determination and sovereignty in the territory,

by precluding its ability to resume control at the end of

occupation. An occupation in which force is used to fulfil

the goal of permanently acquiring a territory is unlawful

and attracts consequences under the international law on

the use of force. The emergence of such a situation also

triggers the legal obligations of third states in international

law to cooperate to bring the occupation to an end, while

also ensuring that they do not give effect to internationally

unlawful acts in their dealings with the occupying state.

The limits of occupation law

Occupations that are unlawfully prolonged through the

illegal use of force in pursuit of territorial acquisition,

or the territory’s secession, have, over time, exposed the

inherent limits of occupation law in three related areas: first,

in the narrow protection mandate occupation law assigns

to the occupying state, irrespective of the duration of the

occupation; second, in the inadequate legal consequences

it prescribes for violations of IHL; and, third, in its limited

ability as special-purpose law to pursue its regulatory

objectives in situations of

de facto

administration that

neither resemble, nor are predicated on, respect for the

norms that occupation law depends on for its effectiveness

(e.g. the prohibition on territory acquisition by force).

First, occupation law offers a restricted, duty-bound

mandate to the occupying state that limits the scope of its

authority vis-à-vis the population of the occupied territory,

for reasons outlined above. However, with each passing

year of an occupation, the need increases for occupiers to

make executive decisions and adopt reforms in order to fully

protect the occupied population’s human rights.

In other

words, in cases of prolonged occupation, an Occupying

Power is often trapped between the imperative to refrain

from taking executive decisions lest it violate occupation

law,

and the need to take them as a temporary governing

authority to ensure the development of the territory and

to protect its population’s human rights.

The proper

26 Article 2(4), UN Charter. See also, Rotem Giladi, “The Jus ad Bellum/Jus in Bello

Distinction and the Law of Occupation”,

Israel Law Review,

Vol. 41, 2008.

27 See: Vaious Koutroulis, “The application of international humanitarian law and

international human rights law in situations of prolonged occupation: only a matter

of time?”,

International Review of the Red Cross,

31 March 2012, No. 855, available

https://www.icrc.org/eng/resources/documents/article/review-2012/irrc-885-

koutroulis.htm.

28 See the Israeli military administration’s measures to developed the quarries, later

approved by the Israeli supreme court as forms of economic development permitted by

an occupying power; HCJ 2164/09,

Yesh Din v. IDF Commander in the West Bank

et al.,

26 December 2011.

29 Benvenisti,

The International Law of Occupation,

pp.76-87.

When maintaining an occupation is

unlawful

Occupation law can only function effectively if an Occupying

Power adheres to the norms outlined in the international law

on the use of force. Occupation law itself does not provide

a measure for determining whether the continuation of an

occupation is lawful or not. In international law, an occupation

itself can neither be lawful nor unlawful; occupations are

merely a matter of fact, and are regulated as such.

The

legality of maintaining an occupation, however, is determined

according to the legality of the continued use or threat of force

www.ecfr.eu

June 2017

ECFR/216

21 Yutaka Arai-Takahashi,

The Law of Occupation: Continuity and Change of

International Humanitarian Law, and its Interaction with International Human Rights

Law,

(Martinus Nijhof, 2009), Chapter 11.

22 This was the case, for example, following the US invasion of Iraq in 2003.

See: Andrea Carcano,

The Transformation of Occupied Territory in International Law,

(Brill I Nijhof publishers, 2015).

23 Article 43, Hague Regulations 1907 and Article 64, Fourth Geneva Convention 1949.

See also: Marco Sassòli, “Legislation and Maintenance of Public Order and Civil Life

by Occupying Powers”,

European Journal of International Law,

Vol. 16, 2005, p.662,

available at http://ejil.org/pdfs/16/4/313.pdf.

24 Aeyal Gross, “The Righting of the Law of Occupation”, in Nehal Bhuta (ed.),

The

Frontiers of Human Rights,

(Oxford: Oxford University Press, 2016).

25 It bears noting that the use of the term ‘unlawful occupation’ is misleading insofar

as there is no diference between lawful and unlawful occupation in dealing with the

respective duties of the occupier. See “Hostages trial” (US Military Tribunal, Nuremberg,

1948), 8 LRTWC 34, 59, available at https://www.loc.gov/rr/frd/Military_Law/pdf/Law-

Reports_Vol-8.pdf. See also: Dinstein,

The International Law of Belligerent Occupation,

p.3.

resolution of such a situation in which executive decisions

need to be made, should be, naturally, to expedite the

return of an occupied territory to the status it had prior

to occupation. But with Israel’s occupation of Palestinian

territory that has not been the case.

Second, the proper function of occupation law depends

on the occupying state’s willingness and ability to respect

other international law. Occupation law was never

intended to account for cumulative and compounded

violations of IHL such as those resulting from

de facto

de jure

annexation of parts of an occupied territory. Yet

most contemporary occupations, including in Palestine,

have become situations of

de facto

administration that

transform the territory, persist long after active hostilities

have ceased, and have no basis in lawful military

necessity. In many cases, the motive of contemporary

occupiers includes acquiring rights to the territory and

wrongfully benefiting from its natural resources. But

because occupation law is commonly applied in isolation

from other international law, the legality of the continued

presence of the occupying state in the occupied territory

often remains unaddressed. Such questions fall outside

the scope of jus in bello – which governs conduct during

war time, including situations of occupation. The gaps

in contemporary international legal practice mean that

the legal consequences occupying states should incur for

prolonging their occupations remain unclear.

Third, occupation law’s preoccupation with humanitarian

protection,

its emphasis on conserving the laws

and institutions in force before the occupation, and its

minimalist approach to human rights protection, have

created protection and enforcement gaps. When the

international response to such situations overemphasises

the occupying state’s obligations under occupation law

and IHRL, without the concomitant application of the law

on the use of force,

it risks harming the effectiveness

of international law. In a situation where the Occupying

Power is unwilling to end the occupation, the application

of IHL and IHRL cannot alone prevent the occupying state

from benefiting from its unlawful exercise of sovereign

authority, or prevent abuses of the local population’s

rights. While occupation law continues to formally apply

to the actions of an occupying state that violates the law on

the use of force, such cases of occupation require diligent

application of the law on the use of force to encourage an

Occupying Power to withdraw from foreign territory.

Defining an unlawfully prolonged

occupation

Under the criteria provided by international law, many

contemporary occupations appear to be unlawfully

prolonged. An occupying state that seeks the permanent

transformation of the political and legal order of a

territory, for instance, by supporting a proxy government

or secessionist movement, or by pursuing annexation

of a territory, attracts state responsibility for serious

breaches of the peremptory norms of international law

(also known as

jus cogens).

Under the UN Charter, such an occupier is assumed to be

working towards the goal of preventing the ousted sovereign

from regaining control over its internationally recognised

territory, and denying the population in the occupied

territory the ability to, in future, exercise their internationally

recognised right to self-determination of peoples. Prolonged

occupations should give rise to presumptions among

members of the international community that the long-term

goal of the occupier is permanent alteration of the territory’s

status or the rights of its local population.

A potential consequence of determining such an objective

is that the formal status enjoyed by an Occupying Power in

international law – one that presumes that the occupation

is being maintained on grounds of security –is undone.

While such occupying states remain bound by existing

international law obligations, their primary obligation is

to undertake all necessary measures to withdraw from the

territory. In the interim, they are arguably precluded from

lawfully availing themselves of the tactical measures they

are otherwise permitted to use in active hostilities, and when

faced with sporadic violence from the local population.

32 On the status of the prohibition on the use of force as peremptory norms (jus

cogens):

Dinstein,

War Aggression and Self-Defense,

p.104. See also: Robert Adams,

“Transformative Military Occupation: Applying the Laws of War and Human Rights”, in

Michael Schmitt, Jelena Pejic (eds),

International Law and Armed Conlict: Exploring the

Faultlines

(Brill I Nijhof publishers, 2005), pp.439-495.

33 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA

Res 1514(XV), UN General Assembly Resolution 1514(XV) adopted 14 December 1960.

Declaration on Principles of International Law concerning Friendly Relations and Co-

Operation among States in accordance with the Charter of the United Nations, UN General

Assembly Resolution 2625 (XXV), adopted 24 October 1970. The Right of Peoples and

Nations to Self-Determination, UN General Assembly Resolution 637 (VII), adopted 6

September 1952. Permanent Sovereignty over Natural Resources, UN General Assembly

Resolution 1803 (XVII), adopted 14 December 1962.

34 The UN terminated South Africa’s mandate as administrator of Namibia and placed it

under UN administration. See: UN General Assembly Resolution 2145 (XXI), 27 October

1966.

35 Israel has used the descriptor ‘an armed conlict short of war’ to use lethal force in the

administration of daily afairs in the territory, where more restrictive standards of IHRL

on the use of force are otherwise applicable; “Sharm El Sheikh Fact-Finding Committee

First Statement of the Government of Israel”, 28 December 2000, para. 286, available

at www.mfa.gov.il/MFA/MFAArchive/2000_2009/2000/12/Sharm%20el-Sheikh%20

FactFinding%20Committee%20-%20First%20Sta.

30 Meron, “The West Bank and International Humanitarian Law”, p.10.

31 Meron, “The West Bank and International Humanitarian Law”, p.10.

ISRAEL'S UNLAWFULLY PROLONGED OCCUPATION: CONSEQUENCES UNDER AN INTEGRATED LEGAL FRAMEWORK

The reasons for Israel’s prolonged

occupation

There is a broad consensus among states and legal experts

that the Palestinian territory of the West Bank, including

East Jerusalem, and the Gaza Strip, is occupied, and triggers

the application of the law of occupation enshrined in IHL.

Israel, however, has long argued that the law of occupation

does not apply to Palestinian territory, since there was no

sovereign Palestinian state before 1967,

and that, instead,

the territory’s status is ‘disputed’.

Israeli Supreme Court

decisions have, at times, affirmed the applicability of what

Israel calls the ‘humanitarian provisions’ of the 1949 Fourth

Geneva Convention and 1907 Hague Regulations that codify

the law of occupation, but have not rejected the government’s

claim that the 1949 Fourth Geneva Convention (a critical

component of the international legal framework applicable

to occupied territory) does not apply

de jure

en bloc.

This

arbitrary standard on what to include in the ‘humanitarian

provisions’ category gives unrestricted discretion to Israel

to reject, for instance, the provision in Article 49(6) of

the Fourth Geneva Convention prohibiting the transfer of

civilians of the occupying state into occupied territory (i.e.

one of the policies implemented by Israel to maintain and

expand the settlements).

Only a few months after enacting the requirement that

Israel’s military administration of occupied Palestinian

territory “observe the provisions of the Geneva Convention”

in military law, in December 1967, the military commander

rescinded that law based on the view that “[t]he territorial

position [of the West Bank and Gaza] is

sui generis”,

i.e.

unique and under-determined, and not occupied.

The

recent granting of formal legal status to settlement outposts

under Israeli law affirms the Israeli government’s long-

standing position that it is not bound by occupation law.

A host of archival material from the first few years of the

occupation recently discovered by Akevot – the Institute

for Israeli-Palestinian Conflict Research − demonstrates

the politically premeditated character of Israeli government

positions and its long-standing attempts to circumvent

its obligations under IHL in disregard of the Palestinian

people’s rights in international law.

36 Eyal Benvenisti, “Occupation and Territorial Administration”, in R Liivoja and T

Maccormack (eds),

Routledge Handbook of the Law of Armed Conlict,

(Routledge, 2016).

See also, “Situation on Registered Vessels of Comoros, Greece and Cambodia Article 53(1)

Report”, ICC Oice of the Prosecutor, 4 November 2014, para. 16, available at

https://

www.icc-cpi.int/iccdocs/otp/OTP-COM-Article_53(1)-Report-06Nov2014Eng.pdf.

37 This position was based on Blum’s ‘absent reversioner’ claim; Yehuda Blum, “The

Missing Reversioner: Relections on the Status of Judea and Samaria”,

Israel Law Review,

Vol.3, 1968, p.279. It was supported before the government by Meir Shamgar, who later

became an Israeli supreme court justice; Meir Shamgar, “The Observance of International

Law in the Administered Territories”,

Israel Yearbook of Human Rights,

Vol.1, 1971,

p.262.

38 “Is the West Bank ‘Occupied’ or ‘Disputed’ territory”, Israeli Ministry of Foreign afairs,

available at http://mfa.gov.il/MFA/ForeignPolicy/FAQ/Pages/FAQ_Peace_process_

with_Palestinians_Dec_2009.aspx#Settlements1; See also: “Cautionary remarks with

respect to the use of certain terms”, Akevot, available at http://akevot.org.il/en/article/

comay-memo-terminology/.

39 Meron, “The West Bank and International Humanitarian Law”, pp.15-16.

40 Eyal Benvenisti, “The Missing Argument: The Article that Changed the Course of

History?”,

American Journal of International Law,

Vol. 111, 2017, pp.31-32.

41 Ian Fisher, “Israel Passes Provocative Law to Retroactively Legalize Settlements”, the

New York Times,

6 February 2017, available at https://www.nytimes.com/2017/02/06/

world/middleeast/israel-settlement-law-palestinians-west-bank.html?mcubz=1&_r=0.

42 See: Akevot archive, available at http://akevot.org.il/en/paperwork/.

Even before the beginning of the occupation in 1967, a set

of Israeli legislative and administrative acts compromised

the sovereign status of the occupied Palestinian territory.

Some were based on a law from 1948 still in force today

that provides: “Any law applying to the whole of the State

of Israel shall be deemed to apply to the whole of the area

including both the area of the State of Israel and any part

of Palestine which the Minister of Defence has defined by

proclamation as being held by the Defence Army of Israel.”

Although the Ordinance has not been referred to in practice,

it remains in force and can therefore be assumed to inform

Israeli institutional practice.

Successive Israeli governments have, for decades,

established, maintained, and expanded settlements and

their infrastructure.

These policies and practices have

led to the extensive appropriation of Palestinian land

and natural resources,

wrongful allocation of property

rights to entities established and operating in settlements,

widespread displacement of Palestinian communities, and

denial of their basic rights, such as access to education

and healthcare, due to the location of the settlements.

To enable the absorption of the settlements,

Israel has

extended its domestic legal jurisdiction into occupied

territory; its domestic law mandates the operation of Israeli

domestic ministries and public bodies in settlements.

These measures constitute systemic violations of the duty-

bound authority of an Occupying Power, and the narrow

remit it has as

de facto

administrator of the occupied

territory, since they entail sweeping reforms to Palestinian

laws and institutions, including by replacing the jurisdiction

of Palestinian courts with that of Israeli military courts.

Israeli governments have undermined Israel’s obligations

as an Occupying Power under international law

while

prejudicing the future rights of Palestinians.

In 1968,

the Israeli government decided to set aside the ‘top secret’

opinion by its legal adviser, Theodor Meron, later an ICJ

judge, which insisted on the applicability of the 1949 Geneva

43 “Area of Jurisdiction and Powers Ordinance No 29”, adopted by the Knesset

September 22 1948, available at http://www.geocities.ws/savepalestinenow/israellaws/

fulltext/areajurisdictionpowersord.htm.

44 For discussion of the efects of the ‘Alon Plan’, the ‘Drobless Plan’ and the Sharon

plans, see: Matityahu Drobles,

Settlement in Judea and Samaria: Strategy, Policy and

Planning,

1980, p.3; “Dispossession and Exploitation: Israel’s Policy in the Jordan Valley

and Northern Dead Sea”, B’Tselem, May 2011, available at http://www.btselem.org/

publications/summaries/dispossession-and-exploitation-israels-policy-jordan-valley-

northern-dead-sea (hereafter, “Disposession and Exploitation”, B’Tselem).

45 “Acting the Landlord: Israel’s Policy in Area C, the West Bank”, B’Tselem, June 2013,

available at http://www.btselem.org/publications/summaries/201306_acting_the_

landlord. Edith Garwood, “Troubled Waters: Palestinians Denied Fair Access to Water”,

Amnesty International, October 2009, available at http://blog.amnestyusa.org/middle-

east/troubled-waters-palestinians-denied-fair-access-to-water/.

46 “Humanitarian Impact of Settlements”, United Nations Oice for the Coordination of

Humanitarian Afairs (UN OCHA), available at

www.ochaopt.org/theme/humanitarian-

impact-of-settlements.

47 Eyal Benvenisti,

Legal Dualism: The Absorption of the Occupied Territories into

Israel,

The West Bank Data Project by the Jerusalem Post, 1989.

48 “One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank”, Association

for Civil Rights in Israel (ACRI), November 24 2014, available at http://www.acri.org.il/

en/2014/11/24/twosysreport/ (hereafter, “One Rule, Two Legal Systems”).

49 Lior Yavne, “Backyard Proceedings: The Implementation of Due Process Rights in the

Military Courts in the Occupied Territories”, Yesh Din, December 2007, p.43, available

http://www.hamoked.org/iles/2012/8521_eng.pdf.

See also, Sharon Weill, “The

Judicial Arm of the Occupation: The Israeli Military Courts in the Occupied Territories”,

International Review of the Red Cross,

Vol.89, No. 866, 2007, available at https://www.

icrc.org/eng/assets/iles/other/irrc_866_weill.pdf.

50 See: “Geneva Convention: Blasting homes and deportation”, Akevot, 12 March 1968,

available at http://akevot.org.il/en/article/theodor-meron-opinion/?full.

51 Meron, “The West Bank and International Humanitarian Law”.

ECFR/216

June 2017

www.ecfr.eu

Conventions to the Palestinian territory and affirmed

the illegality of settlements under international law.

The declassified cable – originally sent to Yitzhak Rabin

who was then Israeli Ambassador in Washington, DC –

acknowledges that “there is no way to reconcile [Israeli]

actions in Jerusalem with the restrictions emanating from

the Geneva Conventions and The Hague Regulations.”

The cable acknowledged that in order to “leave all options

regarding borders open, we must not acknowledge that our

status in the administered territories is simply that of an

occupying power.” These documents indicate that, from

the outset of the occupation, the Israeli government knew

that its positions and plans violated its obligations under

international law.

Israel’s rejection of the international law of occupation,

and its deep-seated commitment to the settlement process,

is mirrored by its refusal to recognise the sovereignty of

the Palestinian people in the territory. Israel held firm

to this position during and after the negotiation and

implementation of the 1993 Israel-PLO Interim Agreement

(or the Oslo Accords), which was intended to organise the

administration of the territory pending the conclusion of

final status negotiations.

the West Bank designated ‘Area C’ by the Oslo Accords, over

which Israel in fact maintains exclusive control.

Israel’s

intention to acquire the occupied Palestinian territory is

apparent from institutional practice, including legislative

and administrative acts that underpin and enable:

•

Its rejection of the applicability of occupation law, and

in particular the 1949 Fourth Geneva Convention, and

its official position that the status of the territory in

international law is ‘disputed’;

The extension of its domestic legal jurisdiction and laws

to the occupied territory;

The imposition of administrative measures and

institutional practices that further the economic, social,

and political integration and absorption of occupied

territory into the territory of the occupying state;

The transfer of the occupying state’s civilian population

into the territory, and the recognition of their habitual

residence in that territory, often alongside the direct

and indirect forcible transfer of the local Palestinian

population to make way for settlements; and

The conferral of status under the domestic laws of the

occupying state to the local population in the occupied

territory, and to the nationals of the occupying state

transferred into the territory.

•

From occupation to annexation

For a state’s actions towards foreign territory to be designated

annexation – a violation of the cardinal prohibition on

the use of force to acquire territory – the state must have

demonstrated intent to acquire permanent title over the

territory.

That intent can be either formally declared and

enacted in law, and hence known as

de jure

annexation, or

it can manifest

de facto

in the practices and policies of an

occupying state towards the occupied territory.

Unlike with its

de jure

annexation of East Jerusalem, Israel

has not declared its intention to annex the rest of the West

Bank to Israel,

but, in effect, its institutional and legal

practice has increasingly absorbed and integrated the

settlements into Israel.

Through a practice of creeping

annexation, Israel has effectively absorbed the 62 percent of

52 Gershom Gorenberg, “Israel Knew All Along that Settlements, Home-Demolitions

Were Illegal”,

Haaretz,

19 May 2015, available at http://www.haaretz.com/opinion/.

premium-1.657167.

53 “The Comay-Meron Cable reveals reasons for Israeli position on applicability of 4th

Geneva Convention”, Akevot, 20 March 1968, available at http://akevot.org.il/en/article/

comay-meron-cable/.

54 See also, a backgrounder note issued by the Ministry of Foreign Afairs airming the

need to maintain this position due to Israel’s actions in contravention of the Convention;

Position Paper in light of the visit of Victor H Umbrict, member of the Presidential Council

of the ICRC, 4-8 December 1971, Sent on 31 November 1971 by A Hassin, 3-4 (unpublished;

curtesy of Akevot).

55 Antonio Cassese, “The Israel-PLO Agreement and Self-Determination”,

European

Journal of International Law,

Vol.4, 1993. See also: Raja Shehadeh,

From Occupation to

the Interim Accords: Israel and the Palestinian Territories,

(Kluwer, 1997).

56 Rainer Hofman, “Annexation”, in

Max Planck Encyclopedia of Public International

Law,

2011.

57 Rainer Hofman, “Annexation”, in

Max Planck Encyclopedia of Public International

Law,

2011.

58 Proposals to this efect are under consideration by the current Israeli government.

See, “Netanyahu ally: West Bank Annexation would, be a disaster”, the

Times of Israel,

31 December 2016, available at

http://www.timesoisrael.com/netanyahu-ally-west-bank-

annexation-would-be-a-disaster/.

59 “One Rule, Two Legal Systems”; Michael Karayanni,

Conlicts in Conlict: A Conlict

of Laws Case Study on Israel and the Palestinian Territories

(Oxford: Oxford University

Press, 2014). See also, Yael Ronen and Amir Paz-Fuchs, “Occupational Hazards”,

Berkeley

Journal of International Law,

Vol.30, 2012, p.2.

•

Under Israeli law, the chief Israeli military commander,

who heads the Israeli Civil Administration, is authorised

to appropriate Palestinian land and allocate property

rights to public and private entities for the purpose of

establishing and developing settlements.

The majority

of settlements, according to Israeli records, are ostensibly

built on public Palestinian land,

which Israeli military

law places under the administration of the Israeli military

custodian, who is, in turn, permitted to allocate the land,

rights of possession, and control over it to Israeli entities

for the construction of settlements.

Although the appropriation of land in occupied territory

for the purpose of facilitating the transfer of its own civilian

population is unlawful regardless of the land’s public or private

ownership, Israel distinguishes between public and private

land in an attempt to disguise the settlement enterprise as

60 About 42 percent of this area is land built-up with settlements, while other parts make

up the jurisdictional areas of settlements or nationals parks under Israeli control, often

allocated for settlement use. See, “By Hook and By Crook: Israeli Settlement Policy in

the West Bank”, B’Tselem, July 2010, available at http://www.btselem.org/publications/

summaries/201007_by_hook_and_by_crook. (hereafter, “By Hook and By Crook”,

B’Tselem).

61 “Under the Guise of Legality: Declarations on state land in the West Bank”, B'Tselem,

March 2012, available at http://www.btselem.org/publications/summaries/201203_

under_the_guise_of_legality. (hereafter, “Under the Guise of Legality”, B'Tselem).

62 “Summary of the Opinion Concerning Unauthorized Outposts-Talya Sason, Adv”,

the Israeli Ministery of Foreign Afairs, 10 March 2005, available at

http://mfa.gov.il/

MFA/AboutIsrael/State/Law/Pages/Summary%20of%20Opinion%20Concerning%20

Unauthorized%20Outposts%20-%20Talya%20Sason%20Adv.aspx. (hereafter, “Opinion

Concerning Unauthorized Outposts”).

63 As early as 1967, then Minister of Interior Haim-Moshe Shapira stated that settlements

would be called “military strongholds”, yet this practice has been phased out over the years:

“There is the question of the Arabs and the question of the Jews”, Akevot, 20 August 1967,

available at http://akevot.org.il/en/article/question-of-arabs-and-question-of-jews/?full.

ISRAEL'S UNLAWFULLY PROLONGED OCCUPATION: CONSEQUENCES UNDER AN INTEGRATED LEGAL FRAMEWORK

lawful acts of military necessity by limiting them to publicly

owned land.

This has been the case since the Israeli High

Court of Justice, in its 1979

Elon Moreh

judgment, prohibited

the construction of settlements on privately owned Palestinian

land.

In a 1980 legal opinion, then Attorney General Yitzhak

Zamir

maintained that the

Elon Moreh

ruling did not

foreclose “seizing” private Palestinian land, if this was done

under the pretext of the military need to maintain public order

through protection of the settlements.

To incentivise population transfers, Israeli domestic law

offers individual settlers, private entities, and settlement local

authorities, financial benefits and property rights to encourage

their permanent relocation to the settlements.

Even before

the recent adoption of the Law for the Regularisation

of Settlement in Judea and Samaria in 2017,

the Israeli

government appears to have been quietly implementing the

recommendations of the Levy Report on the ‘legal status’

of building in the West Bank, which was commissioned but

never formally endorsed by the government, by offering

services and informal status to outposts,

while also turning

a blind eye to private acts of ‘land grab’ by settlers.

By contrast, the Palestinian population of the occupied

territory is subject to Israeli military law, including military

courts and law enforcement authorities. The Israeli civil

administration − a branch of the military − maintains

the Palestinian population registry and issues Palestinian

identification documents that resemble residential status.

During its administration of the population registry since

1967, Israel has lowered the population of the West Bank

and Gaza by at least 600,000. Many have been excluded

from the Palestinian population registry, thereby preventing

them from remaining in or re-entering the territory.

2000, with no justification in military necessity, Israel froze

all updates to the registry, except for children under 16 born

to a resident parent and other exceptional cases.

International institutions have already characterised Israel’s

practices as having the effect of annexation. The ICJ, in its Wall

Advisory Opinion, held that the wall and its accompanying

regime resulted in “a ‘fait accompli’ on the ground that could

well become permanent, in which case, and notwithstanding

the formal characterisation of the wall by Israel as a necessary

part of security infrastructure, it would be tantamount to

facto

annexation.”

Recently, the Human Rights Council’s

March 2017 resolution on Israeli settlements condemned

Israel’s use of “measures the express purpose of which is to

facilitate and authorize the ultimate annexation of Palestinian

land, in contravention of peremptory norms of international

law.”

These determinations, however, have not been

matched by state and international actors’ responses, which

are discussed below.

Towards the enforcement of an integrated

normative framework

Some critics have blamed occupation law for being

ineffective, particularly but not exclusively in the case

of Israel’s occupation. But it is the international practice

of applying it disjointedly from other international laws

on the interstate use of force and self-determination

of peoples (the

jus ad bellum)

that has undermined its

effectiveness. The actions of an Occupying Power in

international law, however, are regulated by an integrated

normative framework that includes all applicable bodies

of international law, in line with the coherence and

systemic integrity of the international legal system.

Under such a framework, an occupying state is neither

absolved of its obligations under occupation law, nor

permitted to breach peremptory norms of international

law on the use of force and self-determination, without

incurring legal consequences.

64 See, for example, Justice Shamgar who stated that the claimant lacked the standing to

challenge the use being made of public land that had been allocated for the construction of

settlements: HCJ 277/84 Ayreib v Appeals Committee et al. 40(2) PD 57, 1986.

65 See, for example, the fact that the Israeli Supreme Court accepted the military claims

that the settlement of Bet El has the function of a security installation, HCJ 606/78

Suleiman Tauiq Ayub et al. v. Minister of Defense et al.; Jameel Arsam Matu’a et al. v.

Minister of Defense et al, PD 33(2), 13 March 1979.

66 “AG Zamir’s Legal Opinion following Elon Moreh Case, reviewed by The Law in These

Parts”, Akevot, 8 November 2015, available at http://akevot.org.il/en/news-item/zamir-

opinion-on-settlements/.

67 “Under The Guise of Legality”, B’Tselem.

68 On the incentives system: “Under the Guise of Security: Routing the Separation Barrier

to Enable Israeli Settlement Expansion in the West Bank”, December 2005, available

http://www.btselem.org/publications/summaries/200512_under_the_guise_of_

security. In 2015 there were nearly 550,000 settlers in the West Bank settlements

(including East Jerusalem), living in some 150 settlements: “Statistics on Settlements

and Settler Population”, B’Tselem, 11 May 2017, available at http://www.btselem.

org/settlements/statistics; “Land Grab: Israel’s Settlement Policy in the West Bank”,

B’Tselem, May 2002, pp.72- 84, available at http://www.btselem.org/publications/

summaries/200205_land_grab; “By Hook and By Crook”, B’Tselem, pp.21-35. See also:

Kerem Navot,

Israeli Settlers’ Agriculture as a Means of Land Takeover in the West Bank,

RHR.org, August 2013, available at http://rhr.org.il/heb/wp-content/uploads/Kerem-

Navot.pdf. (hereafter, Navot,

Israeli Settlers’ Agriculture).

69 “ACRI, Peace Now and Yesh Din Petition the High Court against the Expropriation

Law”, Association for Civil Rights in Israel, 5 March 2017, available at www.acri.org.il/

en/2017/03/05/acri-peace-now-and-yesh-din-petition-the-high-court-against-the-

expropriation-law/.

70 “From Occupation to Annexation: The Silent Adoption of the Levy Report on

Retroactive Authorisation of Illegal Construction in the West Bank”, Yesh Din, February

2016, available at https://www.yesh-din.org/en/from-occupation-to-annexation-the-

silent-adoption-of-the-levy-report-on-retroactive-authorization-of-illegal-construction-

in-the-west-bank/.

71 “Crime Without Punishment: Failure to Prosecute Israelis Involved in Illegal

Construction in the West Bank”, Yesh Din, February 2017, available at www.yesh-din.org/

en/crime-without-punishment.

72 Since the registry was ‘frozen’, along with any changes to residential addresses, Israel

has efectively come to control residency between Gaza and the West Bank, and requires

‘permits’ for travel in either direction: “Travel between the West Bank and the Gaza Strip”,

Hamoked, available at www.hamoked.org/topic.aspx?tid=sub_30.

www.ecfr.eu

73 “‘Forget about Him, He’s Not There’: Israel Control Over the Palestinian Population

Registry”, Human Rights Watch, 5 February 2012, footnote 8, available at https://www.

hrw.org/report/2012/02/05/forget-about-him-hes-not-here/israels-control-palestinian-

residency-west-bank-and.

74 “Perpetual Limbo: Israel’s Freeze on Uniication of Palestinian Families in the Occupied

Territories”, B’Tselem, July 2006, available at http://www.btselem.org/publications/

summaries/200607_perpetual_limbo; “Residents Without Status”, B’Tselem, 21 July

2013, available at www.btselem.org/gaza_strip/stateless.

75 “Legal Consequences of the Constrcution of a Wall in the Occupied Palestinian

Territory”, International Court of Justice, 9 July 2004, para. 121, available at http://www.

icj-cij.org/docket/index.php?p1=3&p2=4&case=131&p3=5.

76 Human Rights Council Resolution, Israeli settlements in the Occupied Palestinian

Territory, including East Jerusalem, and in the occupied Syrian Golan, UN Doc HRC/

A/34/L.41, 21 March 2017, para 7. https://unispal.un.org/DPA/DPR/unispal.nsf/0/256

4F0860FA6E354852580ED0066F9B9.

77 Article 31(1)(c), Vienna Convention on the Law of Treaties, 1969.

78 On the consequences of such violations, see: Iain Scobbie, “The Invocation of

Responsibility for the Breach of Obligations Under Peremptory Norms of General

International Law”

European Journal of International Law,

Vol. 13, 2002, pp. 1201-

1220, available at http://www.ejil.org/pdfs/13/5/1582.pdf; Alexander Orakhelashvili,

Peremptory Norms in International Law (Oxford: Oxford University Press, 2008).

ECFR/216

June 2017

Israel’s occupation of Palestinian territory, and a number

of other contemporary occupations, attract consequences

beyond occupation law for the following internationally

unlawful acts:

•

The use of force against the territorial integrity of

another sovereign;

The establishment and maintenance of a systematic

practice of racial discrimination in the occupied

territory, predicated on the transfer and recognition of

the habitual residence of Israeli nationals in occupied

territory;

and

The flagrant denial of the right to self-determination of

the local population of the occupied territory.

may even go so far as to state that they amount to acts of

aggression, which, according to UN General Assembly

Resolution 3314, includes acts of “military occupation,

however temporary, resulting from such invasion or attack,

or any annexation by the use of force of the territory of

another State or part thereof.”

The UN General Assembly could also request the ICJ to

provide an advisory opinion on the effects of Israel’s

continued presence in Palestinian territory, and the legality

of its use of force to maintain the occupation. The ICJ

assessed the legality of prolonging an occupation in its 1971

Advisory Opinion on South Africa’s continued presence in

Namibia. The court concluded that the effect of prolonging

the occupation of Namibia was that South Africa eroded

the occupied people’s right to self-determination, thereby

creating an “illegal situation”.

That opinion led the UN

Security Council and the UN General Assembly to impose

smart and targeted sanctions on South African entities with

the aim of bringing the prolonged occupation to an end.

Third, because Israel’s prolonged occupation is unlawful,

many of its actions in the administration of the territory

are deemed invalid as a result of them being predicated

on its illegal use and threat of force, i.e. in violation of

the peremptory norm of international law prohibiting

the acquisition of territory by force.

Third states should

closely scrutinise them to be sure that they are not given

effect. Diligently upholding a standard of non-recognition

could also make it less difficult to reverse such effects

after the end of the occupation. Measures that are likely

to be invalidated by international law include: those

excluding Palestinians and other members of the protected

population (e.g. foreign spouses of Palestinians) from the

territory; assigning different residency status and rights of

movement to individuals in the West Bank, Gaza Strip, and

East Jerusalem; and appropriating Palestinian land and

allocating rights to property for the settlement enterprise.

The compounded effects of continued foreign occupation

beyond IHL and IHRL were examined by the European

Court of Human Rights in

Cyprus v Turkey.

It found that

violations of the European Convention on Human Rights

were caused by Turkey operating an unlawful administrative

regime – the Turkish Republic of Northern Cyprus – that

left no available route through which to end the property

rights violations suffered by Cypriots.

The monetary

award of damages for these serious human rights violations,

amounting to €90 million payable by Turkey to Cyprus,

83 Article 3, UNGA Resolution 3314 (XXIX). Yoram Dinstein, “Aggression”,

Max Planck

Encyclopaedia of International Law,

September 2015.

84 “Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)”,

International Court of Justice, 21 June 1971, pp.12-14; Stephanie Koury, “Legal Strategies

at the United Nations: A Comparative Look at Namibia, Western Sahara, and Palestine”, in

Susan M. Akram, Michael Dumper, Michael Lynk, Iain Scobbie (eds),

International Law

and the Israeli-Palestinian Conlict

(Routledge, 2010).

85 The principle of invalidity is a customary rule applicable to violations of

jus cogens,

and codiied in relation in Article 53, Vienna Convention on the Law of Treaties 1969. See:,

Christos L Rozakis, “The Law on Invalidity of Treaties”,

Archiv des Völkerrechts,

Vol.16,

No. 2, 1974, available at http://www.jstor.org/stable/i40036026.

86 Concurring judges noted that “the present judgment heralds a new era in the

enforcement of human rights”:

Cyprus v Turkey,

the European Court of Human Rights

14 May 2014, available at https://lovdata.no/static/EMDN/emd-1994-025781-3.pdf.

(hereafter,

Cyprus v Turkey).

•

This section considers each of the consequences for these

unlawful acts in turn, as well as some of the responses they

merit from third parties and international institutions.

Unlawful use of force

Israel’s continued use of force through occupation of

Palestinian territory attracts consequences under the

UN Charter’s prohibition on the acquisition of territory

by force. A situation of occupation maintained in the

pursuit of territorial acquisition by force, rather than for

reasons of military necessity, is “no different from outright

annexation”.

Both the basis for maintaining such a situation

and the effects of its maintenance and continuation on the

status of the territory and the rights of its local population

amount to violations of international law.

International law provides a rigorous system of disincentives

for responding to such unlawfully prolonged occupations.

First, third parties have an obligation to put an end to

an occupier’s violations through collective and unilateral

measures.

To this end, States are expected to adopt

and further determinations by international institutions

commensurate with the gravity of the conduct. Following

Russia’s activities in Crimea in March 2014, for example, the

EU and United States adopted firm positions on the unlawful

character of Russia’s use of force against the territorial

integrity and the political independence of Ukraine.

Second, the UN Security Council may act in accordance with

its authority under the UN Charter to determine that such

acts are ‘crimes against peace’ which therefore constitute

an international threat to peace and security. The Council

“Concluding Observations of the Committee on the Elimination of Racial

Discrimination: Israel”, UN Committee on the Elimination of Racial Discrimination, UN

Doc. CERD/C/ISR/CO/14-16, 9 March 2012, para. 24, available at www2.ohchr.org/

english/bodies/cerd/docs/CERD.C.ISR.CO.14-16.pdf.

80 Benvenisti,

The International Law of Occupation,

p.349.

81 Article 29, Vienna Convention on the Law of Treaties 1969. See also:

Council v.

Front Polisario,

Judgment of the European Court of Justice, Grand Chamber Judgment,

C-104/16 P, 21 December 2016, available at http://curia.europa.eu/juris/document/

document.jsf?text=&docid=186489&pageIndex=0&doclang=en&mode=lst&dir=&occ=i

rst&part=1&cid=871140.

82 For discussion of these positions, see: Antonello Tancredi, “The Russian Annexation

of Crimea: Questions Relating to the Use of Force”,

Questions of International Law,

May 2014, available at http://www.qil-qdi.org/the-russian-annexation-of-the-crimea-

questions-relating-to-the-use-of-force/.

ISRAEL'S UNLAWFULLY PROLONGED OCCUPATION: CONSEQUENCES UNDER AN INTEGRATED LEGAL FRAMEWORK

was heralded by the court as “punishment for unjust war

and its tragic consequences in Europe.”

Although Israel

is not subject to the European Court’s jurisdiction, the

precedent set by this ruling indicates the gravity of such

violations and the response they merit from third parties

and international institutions. The UN Security Council

similarly upheld Iraq’s “liability under international law for

any loss, damage, or injury arising in regard to Kuwait and

third States, and their nationals and corporations, as a result

of the invasion and illegal occupation of Kuwait”.

These

decisions affirm the importance of offering reparations,

including monetary compensation, to victims of the serious

human rights violations they cause.

rights granted to other Israeli citizens.

The basis for this

judicial practice is Israel’s formal government-sanctioned

policy of recognising the habitual residence of settlers

in the occupied territory, which is contrary to the most

fundamental dictates of IHL. As such, Israel’s protection

of settler rights in occupied territory cannot be considered

as a lawful basis for justifying the limitations placed on

Palestinian rights in the same territory.

The legal and administrative system Israel maintains in

the Palestinian territory of the West Bank, including East

Jerusalem, applies one set of rules for Palestinians and

another for Israelis residing in the territory.

By establishing

two separate systems for Israelis and Palestinians, Israeli

authorities also violate the international law prohibition

on discrimination.

In sum, Israel’s prolonged occupation creates a situation

of serious human rights violations and unbearable living

conditions, in which communities and individuals see no

other option but to relocate.

This is in contravention of the

absolute prohibition on forcible transfer of the population in

the occupied territory inside or out of that territory.

100

The

forcible transfer of Palestinian communities undermines

their economic and social development,

101

which Israel is

obligated to respect.

Such actions, intended to further Israel’s settlement

policy, may amount to persecution, which is defined as

a crime against humanity under the Rome Statute of the

International Criminal Court (ICC),

102

The ICC Office of the

Prosecutor is therefore arguably expected to consider the

implications of these actions in its preliminary examination

of the ‘situation of Palestine’ that began in January 2015.

103

Structural abuses of human rights and

discrimination

The relationship between IHL and IHRL is complementary:

Israel’s occupation, which is based on continuous violations

of IHL, entails systemic abuses of Palestinian human

rights.

Israel rejects the extraterritorial application of

IHRL to the occupied Palestinian territory as mandated by

international law.

However, all international bodies that

have addressed the issue have found that Israel’s obligations

under the International Covenant on Civil and Political

Rights and International Covenant on Economic Social and

Cultural Rights, to which it is a State party, apply to territory

that remains subject to its effective control and

de facto

jurisdiction through occupation.

As discussed above, the application of IHRL to the

occupied territory must, at all times, be predicated on the

full implementation of IHL rules. The Israeli policy is to

settle its own citizens on the occupied territory, through

state encouragement, organisation, material and budgetary

incentives,

and the protection of their right to reside there

as Israeli citizens subject to Israel’s domestic jurisdiction.

It is then Israeli authorities and courts that adjudicate

Palestinian rights claims, under Israeli law, creating a

bifurcated legal system that pits Palestinian rights against

those of Israeli settlers, who enjoy the full gamut of

95 Aeyal Gross,

The Writing on the Wall: Rethinking the Law of Occupation

(Cambridge University Press, 2017), Chapter 5.

96 The irst measure to be considered is their removal from that place, and the only

measures to protect them in the interim should be temporary: David Kretzmer,

“Settlements in the Supreme Court of Israel”,

American Journal of International Law,

Unbound Vol.111, 2017, p.44, available at https://www.cambridge.org/core/journals/

american-journal-of-international-law/article/settlements-in-the-supreme-court-of-

israel/E92B28F7078F2A969B93A0450292775E.

97 “UN Fact-Finding Mission Report on Settlements”; “Separate and Unequal: Israel's

Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories”,

Human Rights Watch, December 2010, available at https://www.hrw.org/sites/default/

iles/reports/iopt1210webwcover_0.pdf.

98 Article 1, UN Charter. Article 2, International Covenant on the Elimination of all forms

of Racial Discrimination.

99 “Forced Displacement: 2015 Overview”, UN OCHA, 3 June 2016, available at

www.ochaopt.org/content/2015-overview-forced-displacement.

100 Article 49, Fourth Geneva Convention, 1949.

101 “Area C and the Future of the Palestinian Economy”, the World Bank, October 2013,

available at http://documents.worldbank.org/curated/en/137111468329419171/West-

Bank-and-Gaza-Area-C-and-the-future-of-the-Palestinian-economy.

102 “Customary International Humanitarian Law, Rule 156: Deinition of War Crimes”,

International Committee of the Red Cross, available at http://ihl-databases.icrc.org/

customary-ihl/eng/docs/v1; FIDH, “Investigate Persecution Arising out of Ongoing

Gaza Closure, Palestinian Human Rights Organizations Urge ICC Prosecutor”, FIDH, 21

November 2016, available at

www.idh.org/en/region/north-africa-middle-east/israel-

palestine/investigate-persecution-arising-out-of-ongoing-gaza-closure.

103 “Preliminary Examination of the Situation of Palestine”, ICC Oice of the Prosecutor,

16 January 2015, available at www.icc-cpi.int/palestine;Valentina Azarova, “Palestine’s

day in court? The Unexpected Efects of ICC Action”, Al-Shabaka, 1 April 2015, available

http://al-shabaka.org/briefs/palestines-day-in-court-the-unexpected-efects-of-icc-

action/.

www.ecfr.eu

June 2017

ECFR/216

Cyprus v Turkey,

para 24.

88 Security Council Resolution 686 (1991) on the end of hostilities in the Gulf region, UN

Doc. S/RES/686(1991), 2 March 1991.

89 “Basic Principles and Guidelines on the Right to a Remedy and Reparation for

Victims of Gross Violations of International Human Rights Law and Serious Violations

of International Humanitarian Law”, United Nations Human Rights Oice of the High

Commissioner, adopted and proclaimed by General Assembly resolution 60/147 of 16

December 2005, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/

RemedyAndReparation.aspx.

90 “International Fact-Finding Mission on Settlements and their Impact on the Civil,

Political, Economic, Social, and Cultural Rights of Occupied Palestinian Territory”,

United Nations Human Rights Oice of the High Commissioner, 29 June 2012, available

http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session19/Pages/

IsraeliSettlementsInTheOPT.aspx (hereafter, “UN Fact-Finding Mission Report on

Settlements”). See also: “Arrested Development: The Long Term Impact of the Separation

Barrier”, B’Tselem, 2012, available at http://www.btselem.org/download/201210_

arrested_development_eng.pdf.

91 “ICJ Wall Opinion”, pp. 187–189, paras 127–131, and pp.191–192, para 134.

92 “Concluding observations on the fourth periodic report of Israel”, United Nations

Human Rights Committee, UN Doc. CCPR/C/ISR/CO/4, 21 November 2014, para 5,

available at https://goo.gl/YOOG9H.

93 “Under The Guise of Security”, B’Tselem.

94 HCJ 1661/05,

Gaza Coast Regional Council v Knesset,

PD 59(2) 481 (2005) 524;

Meron, “The West Bank and International Humanitarian Law” p.17.

Self-determination

The right of the Palestinian people to exercise self-

determination through independence and sovereignty is

internationally recognised.

104

As a peremptory norm of

international law, self-determination is both a general

principle enshrined in the UN Charter,

105

and a collective

human right of a people to “determine its own political

economic and social order, according to its own practices

and procedures of governance, rather than having these

kinds of decisions determined by a foreign power in the

course of an occupation”.

106

The right to self-determination is a corollary to the

prohibition on the acquisition of territory by force, because

the right protects the link that a self-determining people

maintains with a given territory.

107

Its premise is also

affirmed by the IHL prohibition on the transformation

of the occupied territory’s government, legal status, and

demographic characteristics. Israel’s rejection of Palestinian

self-determination and sovereignty in the territory,

therefore, is probative of its underlying intent to pursue the

permanent acquisition of Palestinian territory.

To protect the collective right to self-determination of

the local population in the occupied territory, occupation

law suspends certain decision-making processes (placing

them in what is called a state of ‘abeyance’) until the return

of the rightful sovereign – in addition to prohibiting the

representatives of the local population of the occupied

territory from waiving the law’s protections, as noted

above.

108

Israel has made repeated attempts to gain

Palestinian consent and international recognition for ‘land

swaps’ between occupied territory and Israeli territory.

However, a treaty that cedes title to territory is deemed void

from the outset if it is signed under coercion that results

from the unlawful use of force.

109

While the representatives of the population in the occupied

territory maintain a degree of agency and are able to enter

into special agreements with the occupier during occupation

for the purpose of facilitating the territory’s administration,

such agreements cannot absolve the occupying state of its

IHL obligations.

110

The Oslo Accords are therefore special

agreements for the interim administration of the occupied

territory that establish the Palestinian National Authority as

a subordinate authority of the Occupying Power. The Accords

neither absolve Israel of its IHL obligations as an Occupying

104 UN General Assembly Resolution 3236 (XXIX), adopted 22 November 1974,

recognised the Palestinian people's right to self-determination, established oicial United

Nations contact with the Palestine Liberation Organisation and added the “Question

of Palestine” to the UN Agenda, available at https://documents-dds-ny.un.org/doc/

RESOLUTION/GEN/NR0/738/38/IMG/NR073838.pdf?OpenElement.

105

James Crawford,

Brownlie’s Principles

(Oxford: Oxford University Press, 2013), p.595.

106 Articles 1, ICCPR and ICESCR.

107 On the components of the right to self-determination, see: Catriona Drew, “The East

Timor Story: International Law on Trial”,

European Journal of International Law,

Vol.12,

No.4, 2001, available at http://ejil.org/pdfs/12/4/1539.pdf.

108 Adam Roberts, “Transformative Military Occupation: Applying the Laws of War and

Human Rights”,

American Journal of International Law,

Vol.100, No.3, 2006.

109 Jennings,

The Acquisition of Territory in International Law,

pp.74-76.

110 Article 47, Fourth Geneva Convention, 1949.

Public

International

Law

Power,

111

nor constitute an act of consent by Palestinian

representatives to waive rights that have been subsequently

undermined by Israeli violations of international law.

112

Effects on Europe

Israel’s illegal use of force to prolong its occupation has

created an unlawful situation that third party states are

tasked to bring to an end under the international law on

state responsibility. Doing so will require the EU and its

member states to rethink a failed peace-making model

that has, in many cases, acquiesced to Israel’s practice and

policies, and that fail to effectively challenge the underlying

basis for its continued occupation of Palestinian territory.

Europe should align its positions and actions with the

full gamut of international law-based consequences and

promote their rigorous enforcement in furtherance of the

end of occupation, both bilaterally and in multilateral fora.

At a minimum, third states are under a responsibility in

international law to act cohesively and vigorously to ensure

the non-recognition of the unlawful situation and deny

it effectiveness. The proximity of the EU and its member

states to Israel through interstate relations and dealings

that may extend to the settlements places them in an uneasy

situation. The EU is also necessitated by its internal legal

order to ensure that it does not give legal effect to Israel’s

internationally unlawful acts in the context of their mutual

relations. Building relations with Israel without regard to

these imperatives threatens the integrity of the EU’s own

internal legal order.

Non-recognition

All states have an obligation to uphold the international rule of law,

and to endeavour, through international cooperation, to bring an end

to serious breaches of peremptory norms of international law,

113

and

to ‘ensure respect’ for IHL.

114

At a minimum, all states must abstain

from recognising such violations as lawful, or aiding or assisting

them; a customary norm that is codified in the 2001 International

Law Commission’s (ILC) Draft Articles on the Responsibility of States

for Internationally Wrongful Acts.

115

The ILC referred specifically to

territorial acquisition through unlawful force, and the denial of

self-determination, as cases covered by this obligation,

116

which is

111 Articles 7 and 8 to the Geneva Conventions. The ICRC 2016 Commentary on

Convention (I) states that this article is a safeguard to ensure that a state cannot excuse

its failure to respect its obligations under the Conventions on the grounds that it is

based on the will of the protected persons (361, para. 988). Meron, “The West Bank and

International Humanitarian Law”, p.12.

112 Dinstein,

The International Law of Belligerent Occupation,

p.58.

113 Article 41(1), “ILC Draft Articles on the Responsibility of States for Internationally

Wrongful Acts”, 2001. See also: Vera Gowlland-Debbas,

Collective Responses to Illegal

Acts in International Law,

(Brill I Nijhof publishers, 1990).

114 See: Common Article 1 to the Geneva Convention, Rule 144, Ensuring Respect for

International Humanitarian Law Erga Omnes, ICRC’s Customary IHL Study; Marco

Sassoli and Theo Boutruche, “Expert Opinion on Third States’ Obligations vis-à-vis IHL

Violations under International Law, with a special focus on Common Article 1 to the 1949

Geneva Conventions”, November 2016, available at www.nrc.no/globalassets/pdf/legal-

opinions/eo-common-article-1-ihl---boutruche---sassoli---8-nov-2016.pdf.

115 Articles 40 and 41(2) ILC Draft Articles on the Responsibility of States for

Internationally Wrongful Acts 2001; Stefan Talmon, “The Duty not to recognize as

Lawful a Situation Created by the Illegal Use of Force or Other Breaches of a Jus Cogens

Obligation: An Obligation without Real Substance?”, in C. Tomuschat, J.M. Thouvenin

(eds),

The Fundamental Rules of the International Legal Order

(Brill I Nijhof publishers,

2005).

116 “International Law Commission, Report on the Work of Its Fifty-Third Session”, UN

GAOR, 56th Session, Supplement No 10, 114, para. 5.

ISRAEL'S UNLAWFULLY PROLONGED OCCUPATION: CONSEQUENCES UNDER AN INTEGRATED LEGAL FRAMEWORK

also a corollary of the principle of

ex injuria jus non oritur,

intended

to prevent a wrongdoer from benefiting from its wrongful acts.

117

In the case of

de facto

annexation of foreign territory,

non-recognition is also necessitated by the law of treaties,

codified in the 1969 and 1986 Vienna Convention on the

Law of Treaties. It provides that agreements between

states, as well as those between states and international

organisations, may not be applied in a manner that affects

the rights and obligations of a third-party sovereign without

its consent.

118

In other words, third states and international

organisations cannot enter into agreements with Israel in

relation to Palestinian territory that have not received the

consent of the Palestinian representatives or that affect

existing agreements with them.

With the aforementioned provisions in mind, UN

Security Council Resolution 2334 calls on all states and

international actors to “distinguish, in their relevant

dealings, between the territory of the state of Israel, and

territories occupied since 1967.”

119

Third states that violate their obligations to ensure that

wrongdoers do not benefit from their wrongs, compromise

their own commitments to respect international law and

contribute to its observance by their partner countries. Such

states may also run afoul of the obligation not to give legal

effect to internationally unlawful acts occurring in situations

of unlawfully prolonged occupation. By giving effect to such

unlawful acts, some third parties may also compromise the

implementation of their domestic law and public policy by

relying on the other’s non-corresponding wrongful practice

and interpretations of international law.

The very reason that non-recognition is identified as a norm

of customary international law is that it is deeply embedded

in national systems. The imperative of non-recognition as

lawful of the internationally unlawful acts of other states

is a function of states’ ability to uphold the integrity and

effectiveness of their domestic legal orders. To do so, states

must guarantee their ability to rely on the practice of a

partner country for the implementation of an instrument

of privileged bilateral dealings. For this reason, states’

observance of the principle of non-recognition can take the

form of interstate enforcement measures intended to correct

the partner country’s practice as a condition for its relations

with the third state. Recent corrective measures by the EU

and its member states to their dealings with Israel are driven

by a form of this internal imperative.

120

EU legal necessity

Over the past few years the EU has consolidated its

commitment to non-recognition and developed a specific

position on the non-recognition of Israeli sovereignty over

Palestinian territory. This has led it to exclude public and

private entities based or operating in the settlements from

its relations and dealings with Israel and Israeli entities.

Since 2012, the EU’s Foreign Affairs Council has adopted a

set of key positions in its Conclusions that affirm the need to

adopt such ‘differentiation’ measures in all areas of EU-Israel

relations. These include reaffirming the EU’s commitment

“to ensure continued, full and effective implementation of

existing EU legislation and bilateral arrangements applicable

to settlement products,”

121

and mandating that “in line with

international law − all agreements between the State of Israel

and the EU must unequivocally and explicitly indicate their

inapplicability to the territories occupied by Israel in 1967.”

122

The need to differentiate between Israeli and occupied

Palestinian territory is an imperative of EU law and policy that

is needed to enable the full and effective implementation of EU

and member states’ domestic laws. The EU and its institutions

are legally bound under the Lisbon Treaty to ensure respect for

international law in the exercise of their powers.

123

The EU also

has an interest in preventing and resolving ongoing conflicts,

and to this end is committed to encouraging the observance

of international law by its partner countries, particularly those

involved in armed conflicts. This aspect of the EU’s Common

Foreign and Security Policy is also reflected in the EU’s

Guidelines for Promoting Compliance with IHL.

124

The EU’s commitment to the imperative of non-recognition

can be traced back to the European Community’s 1991

declaration on the recognition of new states, which states

that “[t]he Community and its Member States will not

recognise entities which are the result of aggression”, and

notes that the commitment to the principles of the UN

Charter and the inviolability of all frontiers,

inter alia,

need

to be “laid down in agreements”.

125

In a statement to the

Sixth Committee of the General Assembly, on 30 October

2007, the European Commission affirmed that:

“[…] international organisations [such as the EU]

are also (like States) under an obligation not to

recognise as lawful a situation created by a serious

breach (draft Article 45 paragraph 2). In this respect

the SR [Special Rapporteur] rightly mentions the

declaration of the Community and its Member States

121 “Council Conclusions on the Middle East Peace Process”, the European Council,

20 July 2015, available at www.consilium.europa.eu/en/press/press-releases/2015/07/20-

fac-mepp-conclusions/.

122

“Council conclusions on the Middle East Peace Process”, the European

Council, 18 January 2016, available at www.consilium.europa.eu/en/press/press-

releases/2016/01/18-fac-conclusions-mepp/.

123 See, for example:

Anklagemyndigheden v. Poulsen and Diva Navigation Corp.,

Case

C-286/90, 24 November 1992, para. 9.

124 “European Union Guidelines on Promoting Compliance with International

Humanitarian Law (IHL)”, the European Commission, www.consilium.europa.eu/

uedocs/cms_data/docs/hr/news53.pdf.

125 “Declaration of Guidelines on the Recognition of New States in Eastern Europe and

in the Former Soviet Union”, adopted at an Extraordinary EPC Ministerial Meeting at

Brussels on 16 December 1991; text in

European Journal of International Law,

Vol.4,

No.72, 1993.

June 2017

ECFR/216

www.ecfr.eu

117 Martin Dawidowicz, “The Obligation of Non-Recognition of an Unlawful Situation”, in

James Crawford (ed),

The Law of International Responsibility

(Oxford: Oxford University

Press, 2010), pp.677-686.

118 Articles 29 and 34, Vienna Convention on the Law of Treaties, 1969 and 1986. See

its application in,

Council v. Front Polisario,

Judgment of the European Court of Justice,

Grand Chamber Judgment, C-104/16 P, 21 December 2016.

119 UN Security Council Resolution 2334 (2016), para 5.

120 Krassimir Nikolov, “Ashton’s Second Hat: The EU Funding Guidelines on Israel as

a Post- Lisbon Instrument of European Foreign Policy”,

Diplomacy,

6 October 2014,

available at http://diplomacy.bg/archives/1299?lang=en.

of 1991. It should be pointed out that this was a joint

statement of the international organisation and its

members. It therefore also forms part of the practice

of the European Community as an international

organisation.”

126

The EU’s Lisbon Treaty also requires that consistency

is maintained between the EU’s policy positions and

its activities, including its external relations. This is a

fundamental obligation of “unassailable necessity” to the

EU’s legal order.

127

The European External Action Service

is charged with ensuring that the EU’s external relations do

not disrupt its ability to fully implement EU law, including

instruments of privileged dealings, consistently with EU

public policy, in order to protect the integrity of the

acquis

communautaire.

128

The EU has begun to apply its internalised non-recognition

imperative to its relations with Israel and Israeli entities. It

significantly furthered the implementation of this imperative

to these relations with the European Commission’s July

2013 guidelines on the implementation of the EU’s financial

legislation,

129

which set out the parameters of Israel’s

participation in EU programmes such as Horizon2020

and which prohibit EU funding of Israeli entities based or

operating in the settlements.

dealings with Israel and Israeli entities that are predicated on

its unlawful acts. Instead, the revision of EU-Israeli dealings

has been piecemeal, and includes numerous cases where

the implementation of EU law remains deficient.

130

The

EU’s dealings with other partner countries that wrongfully

maintain occupations of foreign territory, for example

Morocco, suffer from similarly deficient approaches to the

implementation of non-recognition. But here, too, growing

awareness of the risks that such relations represent to its

legal order has begun to raise the EU’s awareness of the

need to correct its interstate relations and private dealings

with Moroccan entities. In a 21 December 2016 judgment,

the European Court of Justice Grand Chamber upheld that

Morocco, arguably with EU acquiescence, was wrongfully

applying the EU-Morocco Association Agreement to the

territory of the Western Sahara, without the consent of

the Sahrawi people or their internationally recognised

representative, the Polisario Front.

131

The EU’s observance of international law through non-

recognition can contribute to bringing about Israel’s respect

for its international law obligations. UN Security Council

Resolution 2334 arguably appreciates the prospects of

furthering the enforcement of international law through non-

recognition by calling on all states to uphold the territorial

distinction between Israeli and Palestinian territory.

132

The EU is also well positioned to encourage other third states

and international actors, including regional organisations

and blocs such as the European Free Trade Association and

Mercosur, whose member countries engage in relations

and dealings with Israel and Israeli entities to review their

dealings and correct them as necessary to ensure the non-

recognition of Israel’s internationally unlawful acts.

To activate such restrictive and corrective measures of

non-recognition, their significance for the internal legal

orders of states and the harmful consequences of their

non-implementation should be transparently and publicly

communicated to both nationals and domestic regulatory

authorities. A transparent process for the adoption of

non-recognition measures would also minimise attempts

to obstruct such measures through political pressure and

undermine their significance for states’ internal legal orders.

Need for coherence

The EU needs to act more diligently to implement non-

recognition in the context of its relations with Israel,

as well as in other contexts of unlawfully prolonged

occupations. Where the EU and member states have

failed to apply the principle of non-recognition, they have

harmed the EU’s legal order and undermined its ability to

protect EU nationals, including corporate entities, from

the reputational, economic and legal risks associated

with Israel’s internationally wrongful acts. The revisions

undertaken by the EU to ensure non-recognition of Israel’s

sovereignty over Palestinian territory has arguably benefited

Israel in the long run by facilitating the EU and its member

states’ risk-free dealings with Israel and Israeli entities in a

manner that does not give effect to Israel’s internationally

unlawful acts. However, proposals to this effect are opposed

by some EU member states.

The EU and member states have not yet devised a coherent

policy and process for proactively detecting and correcting

126 Cited in Charles Shamas, “EU-Third Country contractual engagements under the

European Neighbourhood Policy: Improving the EU’s Normative Housekeeping through

Ex-Ante Conditionality and Safeguard Provisions”, in

Building a Neighbourhood on

Shared Values: Do the EU and its Member States have legal obligations to ensure that

agreements with partner countries are not implemented in violation of fundamental

principles of international law?,

Brussels, 27 November 2007, (unpublished). (hereafter,

Shamas, “EU-Third Country contractual engagements”).

127 See, Armin von Bogdandy, “Founding Principles”, in A von Bogdandy, J Bast (eds),

Principles of European Constitutional Law,

2011, pp.11-54.

128 Shamas, “EU-Third Country contractual engagements”;. Patrick Muller and Peter

Slominski, “The Role of Law in EU Foreign Policy-making: Legal Integrity, Legal Spillover,

and the EU Policy of Diferentiation towards Israel”,

Journal of Common Market Studies,

2016, p.6.

129 “Guidelines on the eligibility of Israeli entities and their activities in the territories

occupied by Israel since June 1967 for grants, prizes and inancial instruments funded

by the EU from 2014 onwards”,

Oicial Journal of the European Union,

19 July 2013,

available

http://eeas.europa.eu/archives/delegations/israel/documents/related-

links/20130719_guidelines_on_eligibility_of_israeli_entities_en.pdf.

130 Hugh Lovatt, “EU diferentiation and the push for peace in Israel-Palestine”, the

European Council on Foreign Relations, 31 October 2016, available at http://www.ecfr.

eu/publications/summary/eu_differentiation_and_the_push_for_peace_in_israel_

palestine7163.

131 CJEU C-104/16 P,

Council v. Front Polisario,

Grand Chamber, Judgment of 21

December 2016.

132 UN Security Council Resolution 2334 (2016), para 5.

ISRAEL'S UNLAWFULLY PROLONGED OCCUPATION: CONSEQUENCES UNDER AN INTEGRATED LEGAL FRAMEWORK

Charting a way forward

Israel’s continued occupation of Palestinian territory

attracts legal consequences beyond occupation law. The

demonstrated effects of Israel’s actions in bringing about the

annexation of large parts of the Palestinian territory violate

the prohibition on the use of force to acquire territory, and

the internationally recognised right to self-determination

of the Palestinian people. Occupation law alone does not

offer a sufficient remedial course of action for these serious

breaches of peremptory norms of international law.

There is broad consensus about the applicability of

occupation law to Israeli actions in relation to Palestinian

territory, yet few third states and international actors have

adopted positions and measures directed at Israel’s unlawful

exercise of sovereign authority in the occupied Palestinian

territory. Even fewer third parties have adopted positions

on the consequences of its actions under the law on the use

of interstate force, let alone taken active measures to require

and compel Israel to bring an end to its unlawfully prolonged

occupation of Palestinian territory through full and effective

withdrawal from the territory that returns effective control

to the Palestinian sovereign.

International law provides a rigorous system of disincentives

that is commensurate with the gravity of Israel’s acts.

However, not all relevant international law norms have

been applied diligently to this situation of unlawfully

prolonged occupation. All states should appraise the

nature and effects of unlawful Israeli acts in view of the

threat they pose to international peace and security, and

should ensure they do not recognise as lawful these acts,

their effects, and the rights and benefits they purport to

create. This is a requirement for all states participating in

the observance of international law, which requires states to

cooperate through international mechanisms – such as the

United Nations General Assembly and Security Council, the

ICC, and ICJ – to further measures that could alleviate the

harms suffered by victims and incentivise the wrongdoing

authorities to cease and desist from their unlawful acts.

The EU and its member states must ensure, in line with their own

laws and policy, the non-recognition of Israel’s internationally

unlawful acts. Ensuring non-recognition is a legal necessity

as it enables the full and effective implementation of EU law

and guarantees protection for EU nationals and companies.

Accordingly, the EU and its member states are required to

exclude unlawful Israeli activities outside the 1967 borders,

as well as other internationally unlawful acts engaged in by

Israeli authorities (e.g. intelligence gathering in contravention

of human rights and international law standards), from their

dealings with Israel and Israeli entities. To proceed in their

relations and dealings with Israel and Israeli entities, the EU

and its member states must ensure that Israel is willing to

respect and align its conduct with the positions of the EU and

its member states’ on the correct application of international

law, or to effectively exclude its unlawful activities in the

occupied territory from the scope of such dealings.

The EU and its member states are also required, under their

domestic law, to regulate their businesses’ operations in,

and in relation to, Israeli settlements. Some 18 member

states have issued advisories alerting EU-based companies

of the risks of such activities.

133

Yet, these notices should

be coupled with domestic compliance measures; those

that inform businesses and other domestic subjects of the

risks such activities entail under domestic laws, and that

concomitantly instruct domestic regulatory authorities

about the correct implementation of domestic law to such

transnational activities. To this end, and in adherence to

their obligations as ‘home-states’ under the UN Guiding

Principles on Business and Human Rights,

134

EU states

should also support the work of the UN to establish a

database of businesses operating in settlements, pursuant

to Human Rights Council Resolution 31/36 of March 2016.

To guarantee the coherence and transparency of its decisions,

the EU should comprehensively assess its dealings with Israel

and Israeli entities, in line with its legal necessity to ensure

the non-recognition as lawful of internationally unlawful acts,

and with its policy commitment to the implementation of

‘differentiation’ measures in the Israeli/Palestinian context.

The EU and its member states should also be looking to review

their dealings in and policy positions on other contexts of

unlawfully prolonged occupation. The reasons and basis for

such measures should be openly communicated by the EU on

behalf of its member states to establish a unified position on

the need to adopt measures to protect the EU legal order and

to avert against attempts to disrupt their implementation.

June 2017

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ECFR/216

133 “EU member state business advisories on Israeli settlements”, the European Council

on Foreign Relations, November 2016, available at http://www.ecfr.eu/article/eu_

member_state_business_advisories_on_israel_settlements.

134 “Guiding Principles on Business and Human Rights: Implementing the United

Nations ‘Protect, Respect and Remedy’ Framework”, United Nations Global Compact, A/

HRC/17/31, 21 March 2011, Principle I: State Duty to Protect, available at https://www.

unglobalcompact.org/library/2.

Glossary

Unlawfully prolonged occupation

The term ‘unlawfully prolonged occupation’ is not a technical

term or legal category of international law; it is a descriptive

term used in this paper. An unlawfully prolonged occupation

arises when an occupying state seeks to permanently

transform the status of a territory, its government, or its

demographic characteristics. This includes the pursuit of the

de facto

de jure

annexation of the occupied territory, or

support for a proxy government or secessionist movement.

Such actions by an occupying state amount to violations

of occupation law and constitute serious breaches of the

peremptory norms of international law (jus

cogens),

notably

those on the use of interstate force.

Jus in bello

– synonymous with international humanitarian

law (IHL) or the law of armed conlict – regulates the conduct

of parties engaged in an armed conlict and occupation. IHL

seeks to minimise sufering in armed conlicts, including

by protecting victims of armed conlict and ofering special

protection to vulnerable populations such as ‘protected

persons’, i.e. the local population in the occupied territory.

To ensure the protection of all civilians, and guarantee

compliance by belligerents, IHL applies equally to all

belligerent parties irrespective of the legality of their reasons

for engaging in war. The rules on occupation enshrined in the

two main instruments on the law of occupation – the 1949

Fourth Geneva Convention and 1907 Hague Regulations

– safeguard the welfare of the population, and protect its

political and legal order from sweeping transformation by the

occupying state.

Jus in bello

is regarded as being applicable

independently from

jus ad bellum.

Jus cogens

(Latin for ‘compelling law’) is an international

legal term that refers to the peremptory norms of

international law from which no derogation is permitted,

and from which states cannot opt out. These norms are

recognised by the international community as foundational

and fundamental to the maintenance of an international

legal order. While there is some disagreement among states

about the content of

jus cogens,

it authoritatively includes

the prohibition on the use of interstate force, the prohibition

of racial discrimination, and the right to self-determination.

Violations of

jus cogens

attract the consequence of invalidity

of such acts and the rights and beneits they constitute,

and trigger third states and international organisations’

obligations to not recognise such acts as lawful, and to

cooperate to bring them to an end.

International human rights law

International human rights law (IHRL) is a set of

international norms enshrined in a series of international

treaties, including the two human rights covenants (the

International Covenant on Civil and Political Rights and the

International Covenant on Economic, Social and Cultural

Rights), as well as a list of specialised human rights treaties.

Many IHRL norms are customary and thereby binding on

all states and non-state actors. IHRL continues to apply in

times of armed conlict and occupation of foreign territory

(the occupying state’s obligations apply extraterritorially).

States are permitted to derogate from their IHRL obligations

if their actions accord with IHL. In time of occupation,

particularly when hostilities have subsided, the application

of IHRL is likely to overtake that of IHL, to ensure more

protection for civilians when the Occupying Power acts in

the capacity of a

de facto

administrator, akin to a civilian

(non-military) authority. The application of IHRL to the

occupied territory is conditional on the occupying state’s full

implementation of IHL, which prohibits the occupying state

from transferring its population into the occupied territory

and treating it as part of the local population.

Jus ad bellum

refers to the conditions under which states

may resort to armed force in international relations. The

prohibition against the use of interstate force enshrined

in the 1945 UN Charter, which prohibits states from

resorting to force against the territorial integrity or political

independence of any state or self-determining people’s

territory, is a core element of this body of rules. According

to this body of law, a state can maintain an occupation,

which requires its continuous use and threat of force, only

if such force is justiied on grounds of military necessity

and proportionate to its lawful military objectives. The

acquisition of territory by force, or attempts to force the

territory’s secession, amount to violations of the

jus ad

bellum,

and trigger consequences of invalidity of the acts

and beneits they create, as well as the responsibilities of

third states (see

jus cogens).

International criminal law

International criminal law is a body of public international

law that provides a body of rules that deines international

crimes − the most heinous acts that ofend humanity and

harm the fundamental interests of the whole international

community. Such acts include the most serious violations

of IHL and IHRL and, in such manner, facilitate their

enforcement. ICL provides the basis for adjudicating the

individual liability of alleged perpetrators of acts deined

as international crimes in the 1998 Rome Statute of the

International Criminal Court (ICC), through international

prosecution. Since 2001, the ICC has been charged with

jurisdiction over its State Parties, given certain prerequisites,

which since 2015 include Palestine (the preliminary

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examination of Palestine by the ICC Oice of the Prosecutor

remains underway since January 2015). States party to the

1949 Fourth Geneva Convention are also required to enact

laws and seek the prosecution or extradition of individuals

suspected of committing a grave breach of the Conventions

(synonymous with war crimes), irrespective of nationality.

Right to self-determination of people

The right to self-determination of people is the right of a

people to freely determine, without external interference,

their political status and to pursue their economic, social, and

cultural development. It is a customary norm of international

law, considered to have the status of a peremptory norm of

international law (jus

cogens).

This collective human right

is enshrined in the two main human rights covenants (see

IHRL). It is also a principle of international law, enshrined

in Articles 1 and 55 of the 1945 UN Charter and in a series

of United Nations General Assembly resolutions, notably

the 1960 Declaration on the Granting of Independence to

Colonial Countries and Peoples and the 1970 Declaration

on Principles of International Law concerning Friendly

Relations and Co-operation among States.

About the author

Dr. Valentina Azarova

is an international law researcher

and practitioner with a focus on the Israel/Palestine

context. She is currently based at the Center for Global

Public Law, Koç University, Istanbul. She also advises

the Global Legal Action Network (GLAN). She has

undertaken research on the law of occupation and ongoing

situations of occupation since 2007 and has published on

these issues. She also has extensive experience advising

inter- and non-governmental organisations. Her current

research looks at statesʼ obligations of abstention and

non-recognition in international law, and the role of

domestic regulatory processes in the enforcement of

international law.

Acknowledgements

I would like to thank the team at ECFR without whom this

publication would not have been possible. I am particularly

indebted to Hugh Lovatt and Gareth Davies. Most of all,

I would like to thank the many experts, academics and

practitioners, who offered insight on the issues covered

in this paper. While some remain anonymous, I owe a

special debt of gratitude to Omar Dajani, Lina Fattom,

Ata Hindi, and Iain Scobbie. Needless to say, I remain

entirely responsible for any mistakes or omissions, and

bear sole responsibility for the content.

ECFR is grateful to the Open Society Foundations for

making this project possible. We would also like to extend

our ongoing thanks to the governments of Norway and

Sweden for their support of ECFR’s Middle East and North

Africa Programme.

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