Palestine vs. Israel: What international law actually says

The Gaza Strip has been under siege since October 2023 by the Israeli armed forces. In The Hague, at the International Court of Justice (ICJ), international lawyers are debating the term "genocide" while the displaced Palestinian population is threatened with famine and disease. An unprecedented, man-made humanitarian crisis.

International court of justice
Earlier this month, the International Court of Justice (ICJ), representatives from 52 states and three organizations, i.e. African Union, the Arab League, and the Organization of Islamic Cooperation, approached the court to present their arguments over Israel's prolonged control over the occupied West Bank, Gaza, and annexed East Jerusalem. @ Frank van Beek

The Israeli occupation of Palestine has been a longstanding issue, fraught with complex legal implications that impact not only the parties directly involved but also the broader international community. This report delves into the multifaceted legal dimensions of the Israeli occupation, examining its roots, evolution, and the consequences it has engendered in international law, human rights, and regional stability, drawing on a diverse range of legal sources and scholarly literature. This report aims to provide a comprehensive analysis of the legal framework surrounding the Israeli-Palestinian conflict, shedding light on the challenges and prospects for resolving one of the most protracted disputes in modern history. The Israeli occupation of Palestinian territories, including the West Bank, East Jerusalem, and the Gaza Strip, has endured for decades, marked by persistent tensions, violence, and violations of international law.

Historical Context

The roots of the Israeli occupation trace back to the Arab-Israeli conflict of the mid-20th century, culminating in the 1967 Six-Day War, during which Israel seized control of the West Bank, Gaza Strip, and East Jerusalem. Since then, Israel has established settlements in these territories, which are widely considered illegal under international law, particularly the Fourth Geneva Convention. The legal status of Jerusalem, a city of profound religious significance to Muslims, Jews, and Christians, remains a contentious issue, with conflicting claims and legal interpretations exacerbating tensions.

The latest round of violence was triggered on Saturday, October 7 2023, when backed by a barrage of rocket fire, militants affiliated with Hamas launched an unprecedented attack on Israel from a blockaded Gaza Strip. The attack resulted in numerous casualties and abductions. Tel Aviv responded to the attack by initiating airstrikes in Gaza, with Israeli Prime Minister Benjamin Netanyahu declaring the onset of war with Hamas and pledged to impose significant costs on the group.

Before we delve into the nitty gritties of the Israeli Palestine conflict, let us step back and get a broad overview of the conflict to better understand its legal intricacies and implications.

International Law and Human Rights

The Israeli parliament, known as the Knesset, has progressively expanded its control over the West Bank through legislative actions, surpassing its limited administrative authority as a belligerent occupier.

Its actions effectively amount to de facto annexation of Palestinian territory, which constitute violations of international humanitarian law, which could potentially amount to war crimes and crimes against humanity.

The Israeli occupation of Palestinian territories raises significant legal questions under international law, including:

  1. The principles of self-determination
  2. Territorial sovereignty and
  3. The prohibition of annexation by force.

Numerous United Nations resolutions, such as UNSC Resolution 242 and 338, affirm the inadmissibility of the acquisition of territory by war and call for the withdrawal of Israeli forces from occupied lands.

Furthermore, the construction of Israeli settlements in occupied territory is a violation of Article 49 of the Fourth Geneva Convention, which prohibits the transfer of civilian populations into occupied territories. These settlements not only infringe upon the basic human rights of Palestinian but also undermine the prospects of a two-state solution, adding complexity to the already complicated legal landscape.

De Facto Annexation

The 1945 United Nations Charter, under Article 2, explicitly prohibits the use of force or threat thereof against a state’s territorial integrity or political independence, thereby prohibiting the acquisition of territory by force. Acts of annexation during belligerent occupation are explicitly forbidden by Article 47 of the Fourth Geneva Convention.

Annexation can be defined as the unilateral act of a State proclaiming its sovereignty over the territory of another. Usually annexation involves the threat or use of force. In many cases a State will occupy the territory of another during the course of an international armed conflict, and subsequently in an act of annexation, assert its sovereignty over it. Annexation is strictly prohibited under international law.

De facto annexation manifests through a series of actions and measures on the ground, indicating the Occupying Power’s implicit intention to permanently integrate the occupied territory. When the domestic law of the annexing State is applied or direct incorporation measures are taken, it constitutes de facto annexation. This term is recognized across various international bodies, including the International Court of Justice (ICJ), United Nations War Crimes Commissions, UN Special Procedures, the European Parliament, and EU Fact Finding Missions.

The most explicit recognition of ‘de facto annexation’ emerges in the ICJ’s Advisory Opinion on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory. Despite Israel’s assertion that the wall’s construction does not constitute annexation and is temporary, the Court expressed concerns over the potential permanent impact of the wall on the future frontier between Israel and Palestine.

It also noted that the construction and associated regime of the wall could establish a “fait accompli” on the ground, effectively amounting to de facto annexation, regardless of Israel’s formal characterization of the wall.

De Jure Annexation

A De Jure annexation happens when a state formally declares its intention to annex, integrate, merge, or incorporate territory through legislative enactment. In essence, it involves the forceful seizure followed by a unilateral assertion of title.

Case in point: Israel’s took steps towards a De Jure annexation during the 20th Knesset session, spanning from March 31, 2015, to April 28, 2019, during which sixty annexation-related bills were proposed, with eight advancing.

Incidentally, Israel’s planned formal De Jure annexation of the occupied West Bank, scheduled for July 2020, was made to come to a grinding halt on August 13, 2020, following a joint statement by Israel’s Prime Minister Benjamin Netanyahu, Sheikh Mohamed bin Zayed Al Nahyan, Crown Prince of Abu Dhabi, and the then United States President Donald Trump.

Is Israel’s border fence equivalent to a De Facto Annexation?

With reference to the trajectory of Israel’s Border Wall, the International Court of Justice (ICJ) has stated that the “construction of the wall and its associated regime creates a ‘fait accompli’ on the ground that could potentially become permanent. In such a scenario, irrespective of how Israel formally characterizes and legally labels its border wall, it essentially amounts to a de facto annexation.

In 2014, Richard Falk, the UN Special Rapporteur for the Occupied Palestinian Territory, during his final presentation to the UN Human Rights Council, concluded that certain parts of the occupied territory might effectively be de facto annexed.

“Through prolonged occupation, characterized by practices and policies suggestive of apartheid and segregation, ongoing expansion of settlements, and continuous construction of the wall, there appears to be a de facto annexation of portions of the occupied Palestinian territory, evidencing Israel’s denial of the Palestinian people’s right to self-determination,” said Falk.

In October 2020, Michael Lynk, the UN Special Rapporteur for the Occupied Palestinian Territory, unequivocally also urged the international community to “oppose all measures on the ground amounting to de facto annexation, which Israel is advancing openly before the international community, and which result in significant breaches of the human rights of Palestinians on a daily basis.”

Annexation is a crime

The International Criminal Court has explicitly categorized annexation as a component of the crime of aggression.

For example, territory gained by way of force from another state, either in whole or in part, can constitute an act of aggression, thereby invoking individual criminal responsibility as outlined in Article 8 bis 2(a) of the Rome Statute.

This definition of aggression encompasses actions such as planning, preparation, initiation, or execution of aggression by individuals who effectively control or direct a state’s political or military actions, and such acts are deemed to be manifest violations of the United Nations Charter in terms of their nature, gravity, and scale. This definition has broad scope and encompasses any form of annexation.

At this juncture, it is worth noting that the Working Group on the Crime of Aggression, within the Preparatory Commission of the ICC, has made a distinction between annexation or incorporation, with the latter referring to the formal enactment through law or decree, akin to de jure annexation, suggesting that the term “any annexation” encompasses both “de facto” and “de jure” annexation of territory.

World’s Highest Court approached to end Israeli Apartheid

Earlier this month, the International Court of Justice (ICJ), representatives from 52 states and three organizations, i.e. African Union, the Arab League, and the Organization of Islamic Cooperation, approached the court to present their arguments over Israel’s prolonged control over the occupied West Bank, Gaza, and annexed East Jerusalem.

This marks the first instance where the ICJ, the world’s top court, has been asked to provide an opinion on this matter. These hearings predate Israel’s ongoing bombardment of Gaza but have already become a significant focus early in the proceedings.

During the hearings, Palestinian Foreign Minister Riyad al-Maliki emphasized the dire situation faced by Palestinians.

“I stand before you as 2.3 million Palestinians in Gaza, half of whom are children, enduring siege, bombings, injuries, starvation, and displacement. Additionally, more than 3.5 million Palestinians in the West Bank, including East Jerusalem, contend with the colonization of their territory and the racist violence that accompanies it,” said Riyad al-Maliki.

Palestinian representatives have pleaded to the ICJ judges for their advisory opinion saying it could contribute to a two-state solution and a lasting peace.

“We call on you to confirm that Israel’s presence in the occupied Palestinian territory is illegal,” said Riad Mansour, the Palestinian representative to the United Nations, while adding, “A finding from this distinguished court would contribute to bringing (the Israeli occupation) to an immediate end, paving a way to a just and lasting peace. A future in which no Palestinians and no Israelis are killed. A future in which two states live side by side in peace and security.”

Palestinians Representatives are poised to assert that the Israeli occupation is unlawful on the grounds that it contravenes three fundamental principles of international law:

  1. The prohibition of territorial acquisition through the annexation of substantial portions of occupied territory
  2. The infringement upon the right to self-determination, and
  3. The establishment of a system characterized by racial discrimination and “apartheid” 

“They’ve had to consider the word genocide in the South Africa case. Now we want them to consider apartheid,” said Omar Awadallah, the head of the U.N. organizations department in the Palestinian Foreign Ministry.

“2.3 million Palestinians in Gaza, half of them children, are besieged and bombed, killed and maimed, starved and displaced,” said Palestinian Foreign Affairs Minister Riad Malki. “More than 3.5 million Palestinians in the West Bank, including in Jerusalem, are subjected to colonization of their territory and racist violence that enables it”.

Paul Reichler, an international expert in law, who is representing the Palestinians, told the ICJ that the policies of Israel’s government “are aligned to an unprecedented extent with the goals of the Israeli settler movement to expand long term control over the occupied West Bank, including East Jerusalem, and in practice to further integrate those areas within the territory” of Israel.

Citing the right to self-determination enshrined in the U.N. charter, Malki told the ICJ judges, “for decades, the Palestinian people have been denied this right and have endured both colonialism and apartheid.”

The Palestinians Representatives have argued that by annexing significant portions of occupied territory, Israel has contravened the prohibition on territorial conquest and infringed upon the Palestinians’ right to self-determination. It has also implemented a system characterized by racial discrimination and apartheid.

“This occupation is annexation and supremacist in nature,” said Malki and appealed to the court to uphold the Palestinian right to self-determination. He declared “the Israeli occupation is illegal and must end immediately, totally and unconditionally.”

Malki was optimistic that the court’s opinion could enhance the prospects for peace. “This ruling could pave the way for both Palestinians and Israelis to coexist peacefully, ensuring mutual security and dignity,” hoped Malki.

An unparalleled total of 51 nations and three international organizations are slated to present their cases to the court in the forthcoming days.

It’s essential to note that these ICJ hearings are distinct from South Africa’s genocide case against Israel, which was filed on December 29. The ruling on January 26 mandated that Israel must “take all measures within its power” to prevent acts of genocide and ensure aid reaches civilians in Gaza.

This legal development stems from a 2022 U.N. General Assembly resolution, which requested the ICJ to provide an advisory (non-binding) opinion on the occupation1.

Do note that the ICJ’s rulings are only binding on states that are parties to the amendment. While the State of Palestine ratified the amendment in December 2017, Israel has not yet become a party to it, rendering the amendment inapplicable to Israel at present.

Article 121 of the Rome Statute explicitly states that the Court cannot exercise jurisdiction over crimes covered by the amendment when committed by nationals of a State Party that has not accepted the amendment or on its territory. Once again, Israel will never be held responsible for its actions. This has to stop.