Espa\u00f1ol<\/a><\/p>\n Fran\u00e7ais<\/a><\/p>\n <\/p>\n It is with a deep sense of responsibility that on behalf of the United Nations Committee on the Exercise of the Inalienable Rights of the Palestinian People, I present this groundbreaking Study on the Legality of the Israeli occupation of the Occupied Palestinian Territory, including East Jerusalem. As the Chair of the Committee, it is my honour to endorse this comprehensive examination, which has been meticulously researched and drafted by the Irish Human Rights Centre of the National University of Ireland in Galway.<\/p>\n Against this backdrop, the study on the legality of the Israeli occupation fills a critical knowledge gap. This thorough legal analysis aspires to contribute to an informed discourse, empowering individuals and institutions with the knowledge and tools to advocate for justice, accountability and the realization of the inalienable rights of the Palestinian people. By examining the relevant international legal instruments, conventions and resolutions, the study also provides a comprehensive appraisal of the legal obligations and responsibilities incumbent on the occupying Power and the parties involved.<\/p>\n This study also underscores the pressing need for a just and lasting resolution based on international law of the Question of Palestine in all its aspects. It highlights the imperative of upholding the principles of international law, including respect for human rights, self-determination and the prohibition of the acquisition of territory by force. Such an understanding is crucial for fostering a conducive environment that paves the way for the end of the Israeli occupation and the realization of the inalienable rights of the Palestinian people.<\/p>\n Moreover, the timely nature of this study cannot be overlooked at a time when Israel is deepening its colonization and creeping annexation of the Occupied Palestinian Territory. In a rapidly evolving global landscape, where geopolitical dynamics continue to shape the debate on the Question of Palestine, the study offers a frame of reference to anchor policymakers, diplomats, international organizations and civil society actors on a comprehensive and authoritative legal analysis enabling informed decision-making, advocacy and the pursuit of justice.<\/p>\n I extend my heartfelt gratitude to the Irish Human Rights Centre of the National University of Ireland Galway for their unwavering commitment and for the rigorous research that underpins this study.<\/p>\n Finally, I recommend this study to all those dedicated to the realization of a just and lasting peace in the Middle East. It is my hope that the findings and insights presented herein will serve as a catalyst for informed dialogue, effective advocacy and meaningful actions towards a future where the rights and aspirations of both Palestinians and Israelis are realized with full respect for the rule of law.<\/p>\n <\/p>\n Executive Summary. 7<\/a><\/p>\n I. Introduction. 16<\/a><\/p>\n II. The nature of belligerent occupation. 19<\/a><\/p>\n III. Legality of occupation. 36<\/a><\/p>\n IV. Is there available evidence to support a finding that Israel\u2019s occupation has become illegal?. 53<\/a><\/p>\n V. Obligations of the international community in bringing illegal occupations to an end. 86<\/a><\/p>\n Part I<\/strong><\/p>\n This study examines two central questions. First, it asks whether Israel\u2019s de facto<\/em> and de jure<\/em> annexation measures, continued settlement and protracted occupation of the Palestinian territory \u2013 the West Bank, including East Jerusalem, and the Gaza Strip \u2013 render the occupation illegal under international law. Second, the study examines the question raised by the implications arising from a finding of illegal occupation. If an occupation can become illegal, what would be the legal consequences that arise for all States and the United Nations, considering, inter alia,<\/em> the rules and principles of international law, including, but not limited to, the Charter of the United Nations; the Fourth Geneva Convention; international human rights law; relevant Security Council, General Assembly and Human Rights Council resolutions; and the advisory opinion of the International Court of Justice of 9 July 2004?<\/p>\n The study establishes that there are two clear grounds in international law establishing when a belligerent occupation may be categorized as illegal. First, where a belligerent occupation follows from a prohibited use of force amounting to an act of aggression, such occupation is illegal ab initio<\/em>. Second, where a belligerent occupation follows from a permitted use of force in self-defence under Article 51 of the Charter of the United Nations but is subsequently carried out ultra vires<\/em> the principles and rules of international humanitarian law and in breach of peremptory norms of international law, the conduct of the occupation may amount to an unnecessary and disproportionate use of force in self-defence. The study examines Israel\u2019s breaches of peremptory norms of international law, the prohibition of the acquisition of territory through force, the right to self-determination, and the prohibition on racial discrimination and apartheid, as indicative of an occupation being administered in breach of the principles of necessity and proportionality for a use of force in self-defence.<\/p>\n Part II \u2013 The nature of belligerent occupation<\/strong><\/p>\n Part II of the study provides a thematic introduction to the legal nature of belligerent occupation and the divergent approach of Israel to the occupation of Palestine. In doing so, it broadly examines the principles underpinning the laws governing belligerent occupation, presents the theory of belligerent occupation as illegal under the jus bello<\/em>, and highlights international practice and jurisprudence classifying belligerent occupations as illegal under the jus ad bellum<\/em>. Further, the study introduces the central tenets of Israel\u2019s official policies and positions on the nature of the belligerent occupation of Palestine, its settlement enterprise and its annexation of Palestinian territory.<\/p>\n The laws governing belligerent occupation establish a number of important principles, including the temporary or de facto<\/em> nature of occupation enshrined in Article 42 of the Hague Regulations (1907), which finds that \u201c[t]erritory is considered occupied when it is actually placed under the authority of the hostile army\u201d. As such, although governmental authority may be \u201ctemporarily disrupted or territorially restricted\u201d during a belligerent occupation, the \u201cState remains the same international person\u201d.[1]<\/a> The occupying Power therefore does not acquire sovereignty over the occupied territory,[2]<\/a> but rather, is obliged to administer the territory weighing the best interests of the occupied population with those of military necessity, under the limitative conservationist principle.[3]<\/a> Significantly, the present study highlights the positions of leading authorities on international law which consider that the practice of \u201cprolonged occupation\u201d has related to occupations of no more than four or five years in length, such as Germany\u2019s four-year occupation of Belgium during World War I,[4]<\/a> or Germany\u2019s five-year occupation of Norway in World War II.[5]<\/a> Former United Nations Special Rapporteur Michael Lynk observes that modern occupations compliant with the principles of occupation law \u201chave not exceeded 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led occupation of Iraq\u201d.[6]<\/a><\/p>\n That belligerent occupations may be considered illegal is not unique to Israel. For example, in Case Concerning Armed Activities on the Territory of the Congo<\/em> (2005),<\/em> the International Court of Justice held that Uganda\u2019s occupation of Ituri \u201cviolated the principle of non-use of force in international relations and the principle of non-intervention\u201d.[7]<\/a> Concomitantly, the United Nations Security Council condemned Iraq\u2019s \u201cillegal occupation\u201d of Kuwait,[8]<\/a> and South Africa\u2019s \u201cillegal administration\u201d in Namibia.[9]<\/a> The United Nations General Assembly, meanwhile, called on Third States to not \u201crecognize as lawful the situation resulting from the occupation of the territories of the Republic of Azerbaijan\u201d[10]<\/sup><\/a> and condemned Portugal for \u201cperpetuating its illegal occupation\u201d of Guinea-Bissau.[11]<\/a> Similarly, the United Nations Commission on Human Rights denounced Vietnam\u2019s \u201ccontinuing illegal occupation of Kampuchea\u201d.[12]<\/a> In 1977, the General Assembly expressed its deep concern \u201cthat the Arab territories occupied since 1967 have continued, for more than ten years, to be under illegal Israeli occupation and that the Palestinian people, after three decades, are still deprived of the exercise of their inalienable national rights\u201d.[13]<\/sup><\/a> Likewise, the preambles to successive United Nations Economic and Social Council resolutions refer to the \u201csevere impact of the ongoing illegal Israeli occupation and all of its manifestations\u201d.[14]<\/a><\/p>\n Finally, section II concludes with a presentation of Israel\u2019s policies and positions on the nature of its administration of the Palestinian territory, the legality of settlements and its annexation of Jerusalem. For instance, Israel\u2019s Ministry of Foreign Affairs considers there to be \u201ccompeting claims\u201d over the West Bank which \u201cshould be resolved in peace process negotiations\u201d, including the settlements.[15]<\/a>\u00a0However, Israel\u2019s High Court of Justice, in Gaza Coast Regional Council v Knesset of Israel,<\/em> held that \u201cthe legal outlook of all Israel\u2019s governments\u201d is that the \u201careas are held by Israel by way of belligerent occupation\u201d.[16]<\/a> Nevertheless, Israel does not apply the Fourth Geneva Convention (1949) to the occupied territory as it has not been transposed into its domestic law; also, politically, Israel disputes the application of the Convention premised on its theory of the \u201cmissing sovereign\u201d. Meanwhile, Israel considers occupied Jerusalem \u201cthe eternal undivided capital of Israel\u201d[17]<\/sup><\/a> and explains that Jerusalem was \u201creunified\u201d in 1967 \u201cas a result of the six-day war launched against Israel by the Arab world\u201d.[18]<\/a><\/p>\n Part III \u2013 Legality of the occupation<\/strong><\/p>\n Part III presents two separate grounds under the jus ad bellum<\/em> where a belligerent occupation may be considered illegal, whether from the outset or beginning at some subsequent point in the occupation. First, an occupation arising from an act of aggression is illegal ab initio<\/em>. Article 2(4) of the United Nations Charter requires that \u201c[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations\u201d. Criminal liability may arise for aggressive acts of occupation; for example, the International Military Tribunal at Nuremberg considered Austria to be \u201coccupied pursuant to a common plan of aggression\u201d.[19]<\/a><\/p>\n Second, a belligerent occupation may be conducted in a manner that amounts to an unnecessary and disproportionate use of force in self-defence.[20]<\/a> Here the caselaw of the International Court of Justice provides useful guidance on proportionality. For example, in Nicaragua, <\/em>the International Court of Justice considered, \u201cthe reaction of the United States in the context of what it regarded as self-defence was continued long after the period in which any presumed armed attack by Nicaragua could reasonably be contemplated\u201d.[21]<\/a> Further, in Nuclear Weapons<\/em> the International Court of Justice suggested that a use of force should meet \u201cin particular the principles and rules of humanitarian law\u201d to be a lawful use of force in self-defence.[22]<\/a> This study suggests that the occupying Power\u2019s breach of the principles and rules of international humanitarian law and peremptory norms of international law provide a strong indicator that a use of force is disproportionate. Such breaches include de facto<\/em> and de jure<\/em> annexations of territory, illegal acquisition of territory through use of force, the denial of the right of self-determination, and the administration of the occupied territory in breach of the prohibition of racial discrimination and apartheid.<\/p>\n Having established the two grounds for illegal occupation under the jus ad bellum<\/em>, the study proceeds to examine, as a separate and subsequent ground of illegality, the occupying Power\u2019s breach of the external right of self-determination of Palestine as Mandate territory. Article 1(2) of the United Nations Charter provides for the right of self-determination of peoples, a jus cogens<\/em> norm of international law[23]<\/a> which has obligations on States erga omnes<\/em>.[24]<\/a> The right of self-determination has special resonance for Mandate territories, whose right of self-determination is held internationally as a \u201csacred trust\u201d until full independence. As such, the colonial process can only be considered to be fully brought to a complete end once the right of self-determination has been exercised by the inhabitants of the colony.[25]<\/a> The South West Africa<\/em> advisory opinion provides the leading example of an illegal occupation of Mandate territory, considered by the International Court of Justice to be illegal ab initio<\/em>. However, whereas South West Africa was mandated territory, held under occupation after the termination of the Mandate, it can be distinguished from Palestine, which is mandated territory held under belligerent occupation in the context of an international armed conflict. Nevertheless, if the occupation is administered in a way that denies the exercise of the right of the people to external self-determination and sovereignty, this may similarly be considered in breach of the \u201csacred trust\u201d. Depending on the circumstances giving rise to the breach of self-determination, the occupation could be illegal either ab initio<\/em> or at some point thereafter.<\/p>\n Part IV \u2013 Evidence to support a finding that the Israeli occupation has become illegal<\/strong><\/p>\n Part IV provides the factual basis to support the finding that Israel\u2019s occupation is illegal. The study presents 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 was rejected as inconsistent with the United Nations Charter.[26]<\/sup><\/a> Israel premised its self-defence arguments on two grounds: first, that Egypt\u2019s blockade of the Strait of Tiran amounted to an act of aggression; and second, that its actions were in response to cross-border attacks by Egyptian armoured columns. However, Egypt\u2019s blockade of the Strait of Tiran was essentially an Egyptian blockade on its own sea in response to a threatened attack from Israel, as distinct from \u201cthe blockade of the ports or coasts\u201d of Israel.[27]<\/sup><\/a> As Schwarzenberger notes, \u201cArticle 51 of the Charter permits preparation for self-defence\u201d.[28]<\/a> The preparatory measures taken by a State in consideration of self-defence include special precautionary measures in its territorial waters.[29]<\/a> Nonetheless, Israel\u2019s Ministry of Foreign Affairs openly published that it pre-emptively attacked Egypt, stating, \u201cIsrael pre-empted the inevitable attack, striking Egypt\u2019s air force while its planes were still on the ground\u201d.[30]<\/a> Given the prohibition on pre-emptive strikes, Israel\u2019s attack on Egypt may amount to an unlawful use of force, rendering the subsequent occupation illegal.<\/p>\n The study further examines Israel\u2019s breach of three peremptory norms of international law as indications that the belligerent occupation is being administered in a manner which breaches the principles of necessity and proportionality for self-defence. First, the study establishes that in 1967, Israel de jure<\/em> annexed East Jerusalem with the adoption of the Municipalities Ordinance (Amendment No. 6) Law, 5727-1967; then, in 1980, under its quasi-constitutional \u201cBasic Law: Jerusalem\u201d, Israel made a constitutional claim to the City as the \u201cthe capital of Israel\u201d, thereby demonstrating an animus <\/em>to acquire the territory permanently.[31]<\/a> The study further concludes that Israel has de facto<\/em> annexed Area C of the West Bank. In 1967, the legal adviser to Israel\u2019s Ministry of Foreign Affairs, in a classified cable, conveyed the annexationist reasons why Israel could not apply the Fourth Geneva Convention (1949): \u201cwe have 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\u201d.[32]<\/a>\u00a0For decades successive Israeli governments have implemented master plans to settle the West Bank. By 1992, out of the 70,000 hectares of Palestinian land in Area C, only 12 per cent remained for Palestinian development after Israel appropriated it as \u201cState land\u201d.[33]<\/a> At the same time, Israel radically altered the demography of Area C, transferring in over 500,000 Israeli Jewish settlers[34]<\/a> \u2013 an irreversible measure with permanent consequences, and one indicative of sovereign expression.[35]<\/a> Meanwhile Israel applies a number of its domestic laws directly to the West Bank, including the Higher Education Law[36]<\/a> and Administrative Affairs Court Law.[37]<\/a><\/p>\n Second, Israel\u2019s conduct in administering occupied Palestine, characterized by the prolonged nature of the occupation and by its policies and plans of settlement construction, further evinces a breach of the right of self-determination.[38]<\/a> Taking the considerable length of Israel\u2019s belligerent occupation, now some 56 years on from Security Council resolution 242 (1967) calling for its \u201cwithdrawal\u201d, 45 years on from the Camp David accords ending the conflict with Egypt, and 29 years on from the Jordan peace agreement, it is clear that the original alleged threat prompting Israel\u2019s use of force in pre-emptive self-defence has completely and irrevocably ended. At the same time, Israel\u2019s zoning of Palestinian immoveable property for residential, agricultural, industrial and tourist settlements, nature and archaeological reserves, and military firing zones, has seen the appropriation of over 100,000 hectares of private and public Palestinian land and the demolition of over 50,000 Palestinian homes since 1967.[39]<\/a> Israel\u2019s alteration of facts on the ground, erasure of the Palestinian presence and interference in the democratic process are carried out, it will be argued, to compromise Palestine\u2019s viability as an independent State, denying the collective right of the Palestinian people to self-determination.[40]<\/a><\/p>\n Third, there is currently a mounting body of recognition that Israel is carrying out discriminatory apartheid policies and practices against Palestinians on both sides of the Green Line.[41]<\/a> Notably, Israel confers rights on Israeli Jews and systematically discriminates against Palestinians. The Land Acquisition Law, 5713-1953, for example, facilitates the alienation of confiscated Palestinian lands to various Israeli State institutions, including the Development Authority. Parastatal organizations, such as the Jewish Agency and the World Zionist Organization, are chartered to carry out material discrimination, including through the allocation of confiscated Palestinian lands to Israeli Jews.[42]<\/a> At the same time, Israeli Jews can pursue ownership claims to Palestinian residential properties in occupied East Jerusalem under the Legal and Administrative Matters Law (1970).[43]<\/a> The quest to engineer a Jewish majority demographic and reduce and remove Palestinians has been advanced by successive governments. Under Israel\u2019s Law of Return (1950), \u201cevery Jew has the right to come to this country as an oleh\u201d and Israeli citizenship is \u201cgranted to every Jew who has expressed his desire to settle in Israel\u201d.Copyright \u00a9 United Nations 2023, all rights reserved.<\/em>\r\nThis is an independent publication commissioned by the United Nations General Assembly Committee on the Exercise of the Inalienable Rights of the Palestinian People. \r\nThe analysis and statements of this report do not necessarily reflect the views of the United Nations or the Committee.<\/em>\r\nAny inquiries about this publication should be addressed to the Committee\u2019s Secretariat, email: <\/em>unpalestinecommittee@un.org<\/em><\/a> \r\nAny quotation of up to 500 words may be used without permission provided that full attribution is given. \r\nLonger quotations, entire chapters, or sections of this study may not be reproduced or transmitted in any form or by any means\r\n\u2013 electronic, mechanical, photocopying, recording or otherwise \u2013 or stored in any retrieval system of any nature, without the express written permission of the Committee\u2019s Secretariat.<\/em><\/pre>\n
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<\/a>Foreword<\/span><\/h1>\n
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<\/a>The relevance and urgency of this study cannot be overstated. The Israeli occupation which started in 1967 is the only reality generations of Palestinians have grown up with. It continues to have far-reaching implications on the lives and rights of the Palestinian people. It is incumbent upon us, the international community, to deepen our understanding of the legal issues raised by this prolonged occupation and its profound impact on human rights, peace and stability in the region.<\/p>\nAmbassador Cheikh Niang<\/strong><\/span><\/em><\/h3>\n
Chair, UN Committee on the Exercise of the Inalienable Rights<\/strong><\/span><\/em> of the Palestinian People and <\/strong><\/span><\/em><\/h3>\n
Permanent Representative of Senegal to the United Nations<\/strong><\/span><\/em><\/h3>\n
TABLE OF CONTENTS<\/em><\/strong><\/span><\/h2>\n
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\u00a0<\/strong><\/h2>\n
<\/a>Executive Summary<\/span><\/h1>\n