By Ralph Wilde
Ralph Wilde is a member of the Faculty of Laws, University College London, University of London
Israel captured the Palestinian Gaza Strip and West Bank from, respectively, Egypt and Jordan, in the 1967 war it launched against these two states and Syria.* It claimed it was acting, pre-emptively, in self-defence against these states. The war was over, with Israel victorious, after six days. Despite that, and Israel subsequently entering into peace treaties with Egypt and Jordan, Israel maintained control of the captured territories through a military occupation—a continuation of the use of force that enabled their capture—in what has now been over half a century, in defiance of calls by the UN General Assembly to end this. Israel’s removal of settlements and redeployment of its military presence as part of the operation of a land, sea and air blockade of the Gaza Strip, as well as its Oslo-accords-based allowance of qualified components of Palestinian self-administration in certain areas of the West Bank, amounted, ultimately, to a reconfiguration, not a partial ending, of this military occupation. It continues to occupy both the Gaza Strip and the West Bank, because both territories remain subject to its continued overall military control.
Israel’s 1967 war was illegal as a matter of the international law on the use of force, the jus ad bellum—even, for the sake of argument, assuming the contested matter of Israel’s claim that it feared an attack from its three neighbours, states cannot lawfully use force in self-defence pre-emptively. Moreover, even if it had been lawful on this basis, the justification ended with Israel’s defeat of the three states. The standard justificatory requirements of the ad bellum test continue to apply to the occupation as itself a continuation of the use of force, and the test would not be met. Either way, then, Israel’s use of force through the occupation with respect to the Gaza Strip and the West Bank has been illegal since 1967. What even accepting Israel’s own (invalid) legal justification was only lawful for six days has existed for fifty-six years. Given that the Palestinian people have a right to self-determination in international law, Israel has been obliged to terminate this use of force immediately, and every day it has continued, it has been an illegal use of force—an aggression—as a matter of the jus ad bellum, and a violation of this right of self-determination (see here, here, and here). Israel’s failure to end the occupation gives rise to a right to resist in international law on the part of the Palestinian people. This is equivalent to the right that the Ukrainian people have to resist, and the right the Ukrainian state has to use force in self-defence against, Russia’s current war, including its occupation and purported annexation of certain areas, in Ukraine. The right does not justify the intentional targeting of civilians, or indiscriminate attacks that risk harming civilians, or the kidnapping of civilians, all of which are illegal in terms of being outside what is permitted by the right itself, and also illegal as violations of international humanitarian law, international human rights law, and international criminal law.
In this context, approaching Israel’s current military action in Gaza as if it is an isolated incident of the use of force, and asking whether Israel has a right to self-defence in international law justifying this action, is to fundamentally mischaracterize the situation. Israel’s current action is actually a re-configuration of the existing use of force it has exercised, in the form of the blockade (with episodic bombing and land incursions) and before that in its original boots-on-the-ground, and settlements, manifestation, adding new means and methods. To say that Israel has somehow a right to do this new, amplified form of an existing use of force in self-defence because of violent acts of resistance to the earlier form of the same use of force, even when such acts are illegal because they target civilians, and/or are indiscriminate attacks that risk harming civilians, and/or involve the kidnapping of civilians, is circular logic. The starting point for determining the legality of Israel’s current action has to be the ongoing use of force of which it is but the latest manifestation, and the question of whether that ongoing use of force was legally justified prior to recent events.
Israel never even claimed it captured the Gaza Strip and the West Bank in 1967 because of threats emanating from the Palestinian people there. If there was no original lawful basis for it to use force then, for that reason or any other, there cannot then be a basis to continue the use of force in response to violent acts of Palestinian resistance to the occupation. A justification for a new phase in an ongoing illegal use of force cannot be constructed solely out of the consequences of violent resistance to that illegal use of force. Otherwise, an illegal use of force would be rendered lawful simply because those subject to this force violently resisted it—a perverse outcome.
None of this means that the deliberate targeting of civilians, or indiscriminate attacks that risk harming civilians, or the taking of civilian hostages, are legally justified; as indicated, these are illegal. But such illegal actions do not justify, legally, the continuation and, within this, the ratcheting up, of Israel’s use of force in the Gaza Strip and the West Bank, given that this use of force is illegal.
Imagine, hypothetically, that Ukrainian resistance fighters launched attacks within Russia involving targeting civilians, indiscriminate attacks risking harm to civilians, and the taking of civilian hostages. These attacks would be illegal, but they would not mean that Russia would then be legally permitted to extend its illegal war in Ukraine, in order to neutralize the threat of further such attacks. To give another example, in this case of something that actually happened: in the Second World War, the USA and the UK carpet-bombed the German city of Dresden, and the USA dropped atomic bombs on the Japanese cities of Hiroshima and Nagasaki. These actions went far beyond what is lawfully justified in self-defence in terms of necessity and proportionality. But they did not somehow, for that reason, give Germany and Japan a legal right in international law to use force in self-defence against the USA and the UK. They were incidents of illegality on the part of the two states within the broader context whereby they were acting lawfully in pursuance to a right to self-defence in response to aggression by Germany and Japan.
Israel’s obligations in the law of occupation and international human rights law (applicable extraterritorially), which govern how it exercises its military authority in the Gaza Strip and the West Bank, oblige it to secure public order and protect human rights. However, even if these obligations, especially those in occupation law (specifically, Article 43 of the Hague Regulations, part of occupation law) can be understood as a general matter to encompass an obligation to use force in occupied territory to neutralize threats emanating from there to the occupying state’s own territory, they would not have this meaning in the present case, because of a more fundamental legal matter. The two areas of international law violated by Israel’s use of force through the occupation since 1967—the prohibition of aggression in the jus ad bellum and the law of self-determination—have non-derogable, jus cogens status. This means they trump any inconsistent rules in other areas of international law. For present purposes, the consequence is that Israel’s obligation to immediately end the use of force in the form of the occupation is treated, legally, as more important than other obligations it might have concerning the preservation of order and human rights protection. Thus the latter obligations cannot serve as a pretext for modifying the former obligation so as to provide Israel with a legal basis for using force in the Gaza Strip or the West Bank (just as, in the earlier hypothetical concerning Ukraine, Russia’s obligations in occupation law would not somehow permit it to use force in the parts of Ukraine that it is illegally occupying in order to address threats emanating from there to its sovereign territory).
A further potential legal basis for Israel’s use of military force in conducting the occupation concerns the peace process between Israel and the Palestinian people. Here, there are two arguments that are sometimes made by Israel and its supporters.
The first argument, which is particular to the West Bank, concerns the Oslo Accords between Israel and the PLO from thirty years ago, still seemingly in force in that no party to them has indicated otherwise. The accords purport to provide for certain aspects of the Israeli presence in the Palestinian territory to continue for an interim period. They also provide for a degree of reduction by Israel of authority in certain areas, and, in consequence, enable certain self-governing Palestinian institutions to operate in these areas, even if still subject to the occupation as a whole. However, the agreement of PLO to Oslo was procured by Israel in the context of an illegal use of force, and the provisions in Oslo purporting to permit Israel to maintain its presence in the Palestinian territory are contrary to the self-determination right in international law, which has, as indicated, special jus cogens status (a status which the accords do not enjoy). The consequence of these two factors, both individually and together, is that, as a matter of international treaty law, those provisions purporting to legalize the occupation in Oslo are void (even if the accords as a general matter remain in force). The accords do not, then, provide a valid treaty-based entitlement on the part of Israel to exercise any authority over the West Bank, nor a reciprocal acceptance by the Palestinian people to such exercise of authority.
The second argument is that the representatives of the Palestinian people were supposedly offered deals in negotiations, which could have ended the occupation, which they turned down. And that, therefore, somehow Israel can maintain the occupation. But according to the law of self-determination, and the use of force, the occupation is existentially illegal and therefore must end for this reason alone. Israel has no legal right, then, to insist on concessions from the Palestinian people (‘land for peace’) in terms of things they have a legal right to (e.g. a reduction in their territorial entitlement to, at a bare minimum, the entirety of the West Bank, including East Jerusalem, and Gaza [already, of course, a drastically reduced territorial unit, roughly 22% of Mandatory Palestine]) as the price for ending the occupation. Indeed, were it otherwise, a state would be able to use force illegally in order to coerce another international legal actor to give up some of their legal rights. The Palestinian people may freely agree to some sort of further compromise (beyond the fact that the West Bank and the Gaza Strip is already less than a quarter of the territory of Mandatory Palestine), but if they decide otherwise, this is their legal right in international law. And in such circumstances, the existence of the occupation continues to have no international legal basis. Again, the Russian war in, including its occupations (via purported annexations) of parts of, Ukraine is instructive here. That war may be brought to an end by some sort of territorial concession to Russia by Ukraine. But as far as international law is concerned, Ukraine is not somehow required to make such a concession as the price for being free of Russia’s war in, including occupation (via purported annexations) of, its territory. It is entitled to such freedom, covering the entirety of its sovereign territory, simply because the war (and the purported annexations it has enabled) is illegal.
Do the foregoing conclusions not create an untenable and absurd situation in international law, where Israel has no right to take action to defend itself against attacks from Palestinian territory, whether the West Bank or the Gaza Strip, even such attacks which, as mentioned, are illegal insofar as they involve deliberately targeting of civilians, and/or are indiscriminate and so risk harm to civilians, and/or involve taking civilian hostages? The problem is that Israel’s position in this regard has been created by its own decision, for over half a century, to exercise the use of force over the Palestinian West Bank and the Gaza Strip through its longest-in-modern-history occupation of these territories, despite this being illegal. Paradoxically, by choosing to flagrantly disregard compliance with the international law on the use of force (and the law of self-determination), Israel has put itself in a position where, because of this, it is not in a position to benefit from the international law framework that permits states to address certain forms of cross-sovereign-border threats. Not only did Israel’s own action degrade international law through its flagrant half-century-plus of defiant illegal occupation. Also, in doing this it operated an arrangement in a territory which, because of this illegality, rendered inoperable the international legal right states have to defend themselves as far as threats emanating from that territory are concerned.
Some in and beyond Israel have supported the state’s control over the Gaza Strip and the West Bank because they wish Israel to be sovereign over these territories, hence the purported illegal annexation of East Jerusalem, and the implanting, expansion and support of Jewish settlements across the West Bank. Within this, some argue that Israel has some sort of international legal right to sovereignty over, and settlement in, the West Bank and Gaza on the basis of the incorporation of the Balfour Declaration commitment into the League of Nations Palestine Mandate Agreement governing the British Mandate period.
Others argue that Israel’s control over the West Bank and the Gaza Strip is justified for security purposes: to prevent, or at least reduce the likelihood of, an existential threat to Israel emanating from these territories. And Israel should therefore maintain this control until there is a peace agreement that gives it cast-iron guarantees of security.
The problem is that none of these objectives are lawful in international law.
The Palestine Mandate Agreement did not validly provide a legal basis for a Jewish state and Jewish settlement covering the land of the Palestine Mandate (what is now Israel, the West Bank and the Gaza Strip), because of the more fundamental “sacred trust of civilization” obligation in Article 22 of the Covenant of the League of Nations, part of the Treaty of Versailles, which stipulated that the territory should be provisionally recognized as an independent state—in effect a sui generis right of self-determination (see here). Had this been implemented a century ago, Palestine would have been established as a state, covering the land between the Jordan River and the Mediterranean Sea, for all the people in that territory—Arab and Jewish Palestinian alike. The fact that it was not implemented not does not change the legal position that it should have been, and, therefore, what did happen—the establishment of a state of and for Jewish people in particular covering part of this territory in 1948, via a forcible secession from the Palestine Mandate brought about through conflict and the Nakba—had no international legal basis. Israel did not, therefore, somehow inherit a Mandate-era-based entitlement to the remainder of the land beyond its 1948 borders, since it was not the legal continuation of the Mandate and, more fundamentally, there was no such entitlement vested in the Jewish people through the Mandate in the first place.
The alternative security basis for controlling the West Bank and Gaza has no valid international legal basis either. States can only lawfully use force outside their borders for defensive purposes in extremely narrow circumstances when there is an actual or imminent-threat-of armed attack. Beyond that, they have to deal with extraterritorial security threats through non-forcible means. And in any case, the threat now, unlike that alleged in 1967, comes from people within the territory Israel occupies, who as mentioned have a right of resistance because of that occupation. A state cannot use force illegally, precipitating resistance, and then claim it has a right to defend itself against that resistance, even when that resistance goes beyond what is lawful in that regard.
Israel took advantage of its victory in its illegal use of force in 1967 to maintain control over the Gaza Strip and the West Bank for over half a century, for annexationist purposes that are illegal according to the law on the use of force and the right of self-determination and/or for defensive purposes that have no lawful basis in the international law of self-defence. What the world is witnessing now is, essentially, a further extension of this process whereby Israel asserts rights for itself which are not accepted in international law. In this case, then, illegality begets illegality. The consequence of Israel originally using force with respect to the Gaza Strip (the boots-on-the ground and settler presence, later converted into a siege with periodic incursions and attacks) illegally is that it cannot then extend this force into a more extreme manifestation without this being necessarily part of, and thereby tainted by the illegality of, the original use of force.
The illegality of Israel’s use of force in Gaza and the West Bank, as a violation of the law on the use of force—and so an aggression—and the legal right of the Palestinian people to self-determination, has the following consequences. Israel is obliged to end this use of force immediately—a ceasefire in Gaza, and a complete termination of the broader force-enabled siege of the Strip, as well as a complete withdrawal of its authority in the West Bank, including East Jerusalem. Because this illegality involves breaches of fundamental rules of international law which have jus cogens and erga omnes status, all other states are in a special legal position, with both negative and positive obligations. They are not entirely free in their behaviour in relation to this situation, as if it is only Israel and the Palestinian people that have applicable legal rights and obligations. In the first place, they are legally obliged not to recognize as lawful, or provide any aid or assistance to, Israel’s use of force, including through the occupation, in the Gaza Strip and the West Bank. This means, necessarily, not affirming that Israel has a right to use this force, and ceasing support, including military support, to Israel for this purpose. In the second place, they are obliged to take positive steps to bring the illegal situation to an end. This means, at a bare minimum, calling for a ceasefire, and, more broadly, calling for Israel to end the occupation. At the moment, some states behave as if they are free to cherry-pick discrete aspects of illegality—commonly, the purported annexation of East Jerusalem, and the implanting of settlements in the West Bank—which they object to or at least refuse to recognize as legally-valid, while staying silent on, and, even, supporting, other more fundamental aspects of illegality. These distinctions have no basis in international law. Indeed, they involve violations of international law by such states in terms of unlawful support and/or the choice to stay silent when there is a legal requirement to object. States need to face up to the more comprehensive nature of the legal position they are in, and what this means for their policies, statements and actions. If, as these states affirm, international law is indeed law, then by definition it is universally-applicable, and not simply something to observe insofar as it aligns with their political preferences. If this is the case, then on fundamental matters where all are legally implicated, they are not free to be selective and apply double standards.
*I am currently acting as Senior Counsel and Legal Advisor to the League of Arab States in the current Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem Advisory Opinion case before the International Court of Justice. The present post is written in my personal capacity only, not my his capacity in the case, expressing my private views only, based on ideas set out in works published before my appointment in the case (see here, here, here and here) which should not be taken as the views of the League of Arab States or any of its members, whether generally or in relation to the case.