Nasim Ahmed
Middle East Monitor / September 6, 2023
A new UN study has concluded that Israel’s occupation of the Palestinian Territories is illegal. “The Legality of the Israeli Occupation” looked at Israel’s extended control over the Palestinian Territories to see if it breaches international law. The report analyzed the applicable rules and principles, including the UN Charter, Geneva Conventions and relevant resolutions, in presenting compelling arguments that Israel’s 56-year occupation has long exceeded any temporary military necessity and violates the Palestinian people’s collective right to self-determination.
The laws of occupation establish important principles, including its temporary nature. Prolonged occupations historically have not exceeded ten years, and yet Israel’s occupation of the West Bank, East Jerusalem and Gaza has lasted for over half a century since 1967. The June 1967 Six Day War has been declared a “war of aggression” by the UN, not the war of “self-defence” claimed by Israel. The war led to Israel capturing the West Bank, East Jerusalem, Gaza Strip and the Golan Heights. One of the basic principles of international law is the “inadmissibility of the acquisition of territory by war.”
Beginning with the events leading up to the occupation itself, the study presented clear and compelling evidence that Israel attacked Egypt first, in an act of aggression, making the consequent occupation illegal from the outset. At the Security Council meeting on the subject in 1967, the argument of anticipatory self-defence presented by Israel was rejected on the grounds that it is inconsistent with the UN Charter. Israel’s self-defence arguments — that Egypt’s blockade of the Strait of Tiran amounted to an act of aggression and that its actions were in response to cross-border attacks by Egyptian armoured columns — were rejected outright. Egypt’s blockade of the Strait of Tiran, as explained in the study, was essentially a blockade ordered by Cairo on its own sea in response to a threatened attack from Israel. It is distinct from “the blockade of the ports or coasts” of Israel, the study argued, restating the historical facts. Article 51 of the UN Charter permits preparation for self-defence including special precautionary measures in a state’s territorial waters, which Egypt was undertaking in fear of Israeli aggression.
The UN report highlighted past examples where occupations were declared illegal due to unlawful use of force. Iraq’s occupation of Kuwait from 1990-1991 was condemned promptly and unequivocally by the UN Security Council through Resolution 660, calling for Iraq’s immediate withdrawal. This occupation was deemed illegal not only because it was an acquisition of territory by force but also due to human rights abuses. Morocco’s occupation of Western Sahara has also been declared illegal. Since 1975, the UN has called for the self-determination of the Sahrawi people and has not recognized Morocco’s sovereignty over Western Sahara, despite its administrative control over the region. Other well-known examples include Uganda’s occupation of the DRC’s Ituri province, which was declared illegal, and South Africa’s administration of Namibia which was condemned as an illegal occupation.
Significantly, the UN General Assembly has repeatedly reaffirmed the illegality of Israel’s occupation of Palestinian and Syrian territory since 1977. It expressed deep concern that these territories have been under illegal occupation for over a decade and that this violates the Palestinian people’s inalienable national rights. The UN’s view of the illegality of Israel’s occupation was further reinforced by the International Court of Justice (ICJ). In its 2004 advisory opinions and judgments, the ICJ repeatedly affirmed the right to self-determination as a fundamental principle of international law. The ICJ concluded that the Palestinian people’s right to self-determination has been undermined by Israel’s occupation through policies like settlement expansion, resource exploitation and the construction of the separation wall, which threaten the fabric of Palestinian society.
The situation in Palestine has been recognized by the UN’s highest legal body as a case “concerning the right to self-determination of peoples under colonial or alien domination” which has not yet been settled. As such, Israel’s occupation of the Palestinian territory, treating it as a “disputed territory” with a “missing sovereign”, along with the de facto annexations, demographic manipulation and settlement enterprise, among other breaches, violates the continuing right of self-determination and sovereignty of the Palestinian people.
Outlining the main arguments for why the occupation is illegal, the study highlighted Israel’s treatment of the Palestinian population. It said that Israel’s behaviour frequently violates the Fourth Geneva Convention, which protects civilians in times of war and occupation. Settlements, for instance, clearly violate Article 49, which prohibits an occupying power from transferring parts of its civilian population into the territory it occupies. Yet settlements have proliferated, with over 600,000 Israeli Jewish settlers living in the occupied West Bank and East Jerusalem. Other violations include administrative detention, collective punishment and disproportionate use of force.
The study also mentioned the growing recognition that Israel systematically discriminates against Palestinians through apartheid policies and laws. These laws confiscate Palestinian lands and grant privileges to Jewish Israelis, while denying Palestinian refugees their legitimate right of return.
The duration of Israel’s occupation is another reason cited for declaring it illegal. Even if it’s assumed for argument’s sake that Israel’s use of force in 1967 was legitimate self-defence, its ongoing 56-year occupation of Palestinian territory clearly exceeds any reasonable military necessity or proportionality for self-defence, the study argued. Moreover, Israel has concluded peace agreements with Egypt and Jordan, the main parties to the conflict, decades ago, yet still occupies Palestinian land despite repeated UN demands to withdraw. Several other Arab countries have normalized relations since, undermining Israel’s narrative even further. The extraordinary duration, long after any security rationale dissipated, definitively violates the temporariness inherent in legal military occupation and demonstrates an illegal annexationist intent.
This provides compelling evidence that Israel’s occupation exceeds any temporary military exigency and has transitioned to an unlawful annexationist endeavour, the study concluded. The perpetual nature of the occupation, despite the time elapsed and historic opportunities for peace, exposes it as an illegal means to colonize Palestinian land rather than a lawful temporary military occupation.
The study argued that Israel’s illegal occupation and human rights violations obligate third party states to impose consequences, including sanctions, to finally end it. It says the UN must immediately initiate Palestine’s full decolonization and self-determination, starting with the unconditional withdrawal of all Israeli military and settlers. Withdrawal for an unlawful occupation cannot be negotiated. Although the UN has urged an end to the occupation, reliance on flawed “land for peace” formulas would also be illegal if used to coerce Palestinians to cede inalienable rights. Ending illegal occupation is an absolute, non-negotiable obligation.
The UN Security Council and General Assembly have long demanded Israel’s unconditional withdrawal from occupied lands. However, the failure to impose consequences has enabled the perpetuation of the illegal occupation. The study stressed that third party states must bring this illegal occupation to an end through sanctions and cutting diplomatic ties. If the world fails to act, Israel’s unlawful occupation and dispossession of Palestinian lands and rights will become irreversible, cementing the permanent denial of Palestinian self-determination.
Nasim Ahmed is a political analyst
