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Israeli Violations

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Annexation under International Law

Since its inception, Israel has systematically and illegally annexed territory belonging to other States. In 1948, Israel illegally annexed territory that was not allocated to it in the General Assembly Partition Plan Resolution 181, including West Jerusalem. Since 1967, Israel has systematically and forcibly altered the status of the occupied territory of the State of Palestine, including East Jerusalem, with the aim of annexing most or all of the territory.

Israel’s gradual annexation of occupied territory of the State of Palestine has been effectuated through a series of discriminatory legislations and illegal practices that violate peremptory norms of international law, including the universally binding legal proscription against the use of force and forcible acquisition of territory, annexation, and racial discrimination. 

Now, the Palestinian people face the most serious threat in decades: the immediate threat of further Israeli annexation, entrenchment of its illegal occupation, and intensification of its widespread and grave human rights violations against the Palestinian people. Aggravating these threats is the dismaying lack of political will of the international community to apply its obligations vis-à-vis international law and the Palestinian people and hold Israel accountable for its grave violations. 

States, experts, lawyers, UN Agencies, and other organizations have warned that annexation would formally enshrine a racist two-tier system that would resemble classical colonial regimes, in which the Palestinian people would be “subjects” of the colonial State, but not its “citizens”.[1] Such an outcome must be unequivocally and absolutely rejected because it constitutes egregious violations of international law, including the United Nations Charter. Furthermore, States must uphold their obligations under international law, including ensuring the Palestinian people´s realization of their inalienable right to self-determination, which requires ending Israel’s occupation and holding Israel accountable for its massive violations of peremptory norms of international law. 

 

  • The Illegality of annexation and the Right of the Palestinian People to Self-Determination

Annexation is defined as the forcible and illegal acquisition of territory by one State at the expense of another. The prohibition of annexation, in part or in full of a territory, is accepted as a fundamental principle of customary international law, for which no exception or derogation is permitted.[2] In addition to the use of force and annexation being illegal and absolutely prohibited under international law, the resulting consequences also violate other peremptory international norms, like the right to self-determination. The endurance of these principles, in spite of their multiple violations, including those by Israel, are a testament to the commitment of the international community to uphold such prohibitions and accord primacy to such inviolable rights.

The implementation of Israel’s planned annexation would violate the UN Charter and peremptory norms of international law. Article 2(4) of the UN Charter requires that all Member States “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.”[3] Subsequently, the Declaration on Principles of International Law concerning Friendly Relations Co-operation among States,, adopted unanimously by the UN General Assembly, declared that “the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force”.[4]

Moreover, Israel’s annexationist plan inherently entails the commission of war crimes and crimes against humanity. Such crimes include but are not limited to: extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;; the transfer, directly or indirectly, by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; persecution; and other inhumane acts.[5]

The prohibition on acquisition of territory by force, is recognized as a customary rule of international law with longstanding State practice and opinion juris. In the Nicaragua Case, the most cited example of the recognition of the prohibition of use of force, the ICJ warned that any justification or derogation to the prohibition on the use of force weakens the principle as a matter of treaty and customary international law.[6]It further provided that;          

“A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law.”[7]

In congruence, the International Law Commission (ILC), in the course of its work on the codification of the law of treaties, expressed the view that “the law of the [UN] Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens [peremptory norm]”.[8] The ILC’s Special Rapporteur also confirmed “the prohibition of aggression”[9] and the “right to self-determination” as the most widely recognized examples of peremptory norms of general international law.[10] Likewise, the Special Rapporteur of the ILC in ‘Consequences of peremptory norms of general international law (jus cogens) on unilateral acts’[11] addressed the unilateral use of force leading to annexation. He affirmed that unilateral acts that are in conflict with a peremptory norms, including use of force and annexation, are considered invalid and inadmissible. This is also in line with the ILC Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, with commentaries thereto, which stipulate in their principle eight that “a unilateral declaration which is in conflict with a peremptory norm of general international law is void.”[12]

The gravity of the use of force and annexation is also reflected normatively in Article 8 bis of the Rome Statute of the International Criminal Court dealing with the “supreme international crime” of aggression.[13] The Rome Statute defines aggression as an international crime which is “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”, such as “the invasion or attack by the armed forces of a State of the territory of another State, or any 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”.[14]

Annexation also violates international humanitarian law. Given that the territory of the State of Palestine is occupied, the starting point is the application of the law of occupation and its universally recognized rules. Among these rules are that the occupation should be temporary and that sovereignty and title in an occupied territory are not vested in the occupying Power but rather remain with the population under occupation, even if there is de jure annexation. That is to say, the law of occupation specifically safeguards the occupied people from any attempts of annexation or claims of sovereignty over the territory.  IHL also prohibits the occupying Power from changing the law that applies in the occupied territory and the transfer of part of the population of the occupying Power to the occupied territory.[15] This provision aims to prevent the occupying Power from altering the legal status, character, and demographic composition of the occupied territory against the interests of the population living there.

However, Israel’s systematic entrenchment of the settlement enterprise and its colonial practices, including land theft, are being carried out with deliberate disregard for the application of IHL in the occupied territory of the State of Palestine and furthermore impinge on the protections and rights of the protected population living under its occupation. By undermining the rights of the occupied people, annexation violates the safeguards provided to the protected population in the Fourth Geneva Convention, particularly Article 47:

“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”[16]

In 2017, the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, Michael Lynk, identified a number of violations on the part of the occupying Power, which render the occupation illegal.[17]These include annexation of territory, both de jure and de facto, colonization/settlements, Apartheid and racial discrimination, denial of self-determination, systematic violation of humanitarian law, failure to bring the occupation to an end in a reasonable time, and failure to negotiate in good faith.[18]Previously, General Assembly Resolutions have condemned Israel’s occupation as a violation of the UN Charter[19] and deemed it as “illegal”.[20] For its part, the United Nations Economic and Social Council has also qualified Israel’s occupation as illegal and urged Israel to apply its obligations under international law.[21] Likewise, in 2002 Secretary-General Kofi Annan, called upon Israel to “end the illegal occupation”. [22] As such, Israel’s occupation has become illegal for its violations of peremptory norms.

Annexation also violates the human rights of the Palestinian people, including those of an erga omnes character. Most pertinent are the right to self-determination and the prohibition of racial discrimination. By a virtue of their erga omnes status, the right to self-determination and the prohibition of racial discrimination are the responsibility of all States to ensure that they are upheld. Their obstruction or violation, particularly through the use of force and settlement colonization measures, constitute a grave violation of international law.    

Well established in general international law and in international law germane to the Question of Palestine, including, inter alia, UNGA Resolution 181, the right to self-determination is guaranteed by Article 1(2) of the UN Charter as a legal right. [23] Likewise, its content is clarified in the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960[24] and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the UN Charter as the right of peoples to freely determine their political status and freely pursue their economic, social and cultural development.[25] It has been acknowledged by the ICJ,[26] confirmed by the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights [27]and recognized by many jurists.[28]

Universally recognized as a core principle of international law, the ICJ in East Timor Case, declared that the right to self-determination has a special status as “one of the essential principles of contemporary international law” and enjoys “an erga omnes character.”[29] Similarly, in The Barcelona Traction judgment, the ICJ concluded that rights of erga omnes character entail that “all States can be held to have a legal interest in their protection”[30][FA1] .

Similarly, the erga omnes character of the right to self-determination was confirmed by the ICJ in relation to the Palestinian people in the Advisory Opinion on the Wall;

“The Court would observe that the obligations violated by Israel include certain obligations erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are by their very nature "the concern of all States" and, "In view of the importance of the rights involved, al1 States can be held to have a legal interest in their protection"… The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law”.[31]

These observations must be understood in the context of universal recognition of the right to self-determination of which all States are obligated to help in its realization. Moreover, the illegal nature and gravity of Israel’s previous attempts to annex Palestinian territory have prompted the Security Council and General Assembly, in several Resolutions to explicitly and implicitly stress the inadmissibility of the acquisition of territory by force and the right of the Palestinian people to self-determination, such as UNSC Resolutions 242 and 267.[32] The Resolutions also condemned all measures taken by Israel, the occupying Power, and its officials aimed at altering the demographic composition, character, and status of the occupied Palestinian territory, including East Jerusalem.[33] Most importantly, these Resolutions consider such measures to be null and void and as having no legal validity.      

In 1970, General Assembly Resolution 2672/C (XXV) proclaimed that the people of Palestine were “entitled to equal rights and self-determination in accordance with the Charter of the United Nations” and since then this has become a regular feature of Resolutions on Palestine. Resolution 67/19, recognizing Palestine as a non-member observer State in the United Nations, reaffirmed “the right of the Palestinian people to self-determination and to independence.” Resolution 72/160 of 19 December 2017 reaffirmed the right of the Palestinian people to self-determination “including the right to their independent State of Palestine.”[34] Recently, General Assembly Resolution 74/139 of 2019 reaffirmed the right of the Palestinian people to self-determination and stressed the urgency to end Israel’s occupation.[35]


Similarly, the UN-commissioned International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory, including East Jerusalem, found/concluded that Israel’s settlement enterprise and annexationist plan, “is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian State and undermines the right of the Palestinian people to self-determination”.[36] In addition, in 2012 the Secretary-General of the United Nations stated that, “the current configuration and attribution of control over land” resulting from Israel’s settlements “severely impedes the possibility of the Palestinian people exercising their right to self-determination” because the fragmentation of Palestine “undermines the possibility of the Palestinian people realizing their right to self-determination.”[37] Likewise, General Assembly Resolution 3314 (XXIX), provides evidence of the acceptance and recognition of non-derogability of the prohibition against aggression. It defines aggression as “the most serious and dangerous form of the illegal use of force” and as “the possible threat of a world conflict and all its catastrophic consequences”. Moreover, the Resolution makes clear “that territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken by another State in contravention of the Charter”. [38]       

This consistent practice of the Security Council and the General Assembly was aptly summarized by the ICJ in its Advisory Opinion on the Wall;           

            “(…) [f]rom 1967 onwards, Israel took a number of measures in these territories  aimed at
            changing the status of the City of Jerusalem.           The Security Council, after  recalling on a
            number of occasions  ‘the principle             that acquisition of territory by  military conquest is
            inadmissible’, condemned those measures and, by  Resolution 298 (1971) of 25 September
            1971, confirmed in the clearest possible  terms that: ‘(…) all legislative and
            administrative actions taken by Israel to change the status of the City of Jerusalem,
            including expropriation of land and  properties, transfer of populations and legislation
            aimed at the incorporation of the occupied section, are totally invalid and cannot
            change that status”.[39]           

In summary, Israel’s annexationist plans and its settlement colonization in Occupied Palestine, including East Jerusalem, violate the basic tenets of international law and the rights of the Palestinian people, including their inalienable right to self-determination. The means used to implement and achieve its annexationist plans are equally illegal, qualifying as grave breaches under international humanitarian law[40] and/or war crimes under the Rome Statute,[41] including, inter alia, unlawful deportation or transfer, extensive destruction and appropriation of property, persecution of the Palestinian people, and inhuman treatment.[42]   
 

  • Third State Responsibility          

Under international law of State responsibility for internationally wrongful conduct, grave violations of peremptory norms give rise to specific international legal consequences for both Israel, the occupying Power, and the international community. Since Israel has repeatedly demonstrated its unwillingness to abide by its obligations vis-à-vis international legal order and the Palestinian people, it is imperative that third State parties and international institutions uphold their obligations towards ensuring accountability and compliance with international law.[43] While Israel, the occupying Power, is obliged to end its occupation and guarantee non-repetition and reparations,[44] the international community is obliged to refrain from recognizing unlawful acts or lending assistance, in addition to the obligation to cooperate to bring an end to grave violations.[45] Such obligations are stipulated under peremptory norms of international law, the UN Charter, all relevant Conventions, and customary international law.[46] Respect by States of their obligations in this regard is a decisive factor in ensuring Israel’s compliance with its obligations as well as strengthening the efficacy of the international legal order.  

In the words of the 2001 Articles on Responsibility of States for Internationally Wrongful Acts of the ILC, widely considered to be a codification of customary international law:

            “States shall cooperate to bring to an end through lawful means any serious breach within
            the meaning of article 40;      No State shall recognize as lawful a situation
            created by a serious breach within the
meaning of article 40, nor render aid or assistance
            in maintaining that situation
.”[47]    

It is in this vein that the UNGA resolutions ES-10/5 and ES-10/6, stipulated that “all illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory, especially settlement activities and the practical results thereof, remain contrary to international law and cannot be recognized, irrespective of the passage of time”.[48] In 2016, the Security Council resolution 2334 went further and promulgated that all States of the United Nations must distinguish, in their relevant dealings, between the territory of Israel, and the territories occupied since 1967. Previously, as early as 1982, the General Assembly determined not to recognized Israel’s act of aggression and called upon States to implement sanctions against Israel, the occupying Power, for its illegal actions.[49]

The principles of non-recognition and non-assistance are further discussed in the Namibia Case where the ICJ found that the continued presence of South Africa was unlawful. Accordingly, it held that States are under an obligation not to recognize that unlawful situation and must refrain from “lending any support or any form of assistance to South Africa with reference to its occupation of Namibia”. Specifying this obligation, the ICJ held that third States may not enter into treaty relations with the unlawful regime with regard to the territory in dispute nor can they invoke or apply existing treaties applicable to the territory or maintain any diplomatic or consular relations. [50]   

This was also affirmed in particular with regards to the situation in the Palestine in the ICJ Advisory Opinion on the Wall:

“Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.” [51]

Later on, General Assembly Resolution 64/19 called “upon all Sates Members of the United Nations to comply with their legal obligations as mentioned in the advisory opinion”—this determination by the Assembly, adopted with overwhelming support, demonstrates that States have acknowledged to be bound by the categories of obligations set out in the ICJ’s advisory opinion that they themselves have characterized as “legal obligations”.[52]

Additionally, Israel’s serious breaches resulting from de facto and de jure measures of  annexation trigger the heightened legal responsibility of all States. The respect of peremptory norms and erga omnes obligations, like the right to self-determination, are owed to the international community as a whole, for which individual States are entitled to take lawful measures to counter any violations thereof. According to the ILC, any State other than an injured State is entitled to invoke the responsibility of the State violating peremptory norms of international law.[53]

Besides the principles of non-recognition and non-assistance, the ILC Drafts and the UN Resolutions discussed above reflect an existing general rule under IHL on State responsibility that any breach, by act or omission of the Geneva Conventions, triggers international responsibility.[54] The obligation to ensure respect requires States to proactively take measures to prevent violations of the Geneva Conventions. This duty is complemented in Common Article 1 to the Four Geneva Conventions, which stipulates that States “undertake to respect and to ensure respect” for the Conventions in all circumstances.[55]

Moreover, Articles 49, 50, 129, and 146 of the Fourth Geneva Convention envisage specific measures to penalize and punish grave breaches. States, whether or not they are themselves party to an armed conflict, should ensure respect for the Conventions by other States and non-State Parties to an armed conflict.[56]

As made clear by international law, States should not encourage, recognize, aid, or assist Israel in its annexationist plans and systematic violations of the law and should act to prevent it. International law demands proactive steps and unconditional and timely performance of obligations so as to preserve international law and bring an end to such violations. This is particularly true where States’ wrongful acts involve grave violations of peremptory norms. Third States’ respect of their obligations is essential for both the effective functioning of international law and its universal application.

 

  • Conclusion

Israel’s occupation of Palestine is characterized by many egregious and unlawful acts resulting in the violation of at least two peremptory norms of international law: the prohibition of the acquisition of territory through the use of force and the right to self-determination.  Israel’s systematic violations of IHL, IHRL, and other peremptory norms are effectuated through its colonization of the Palestinian land, mass displacement of the Palestinian people and the perpetual violation of Palestinian rights. Gradually but systematically, Israel, the occupying Power, has implemented policies and practices that, when considered comprehensively, have directly facilitated and supported its plans for full annexation of the territory of the State of Palestine.

The international community’s failure to maintain a principled position regarding Israel’s previous illegal annexations of Arab lands since 1948 has enabled Israel to evade the consequences of such illegal and aggressive behavior and undermines the international rules-based order. This failure has unquestionably weakened the fulfilment of the international community’s obligation of preserving international peace and security, of which the inadmissibility of the acquisition of territory and the prohibition of the use of force are core. 

While Israel, the occupying Power, is obliged to end its illegal occupation of the territory of the State of Palestine, guarantee non-repetition, and respect the universally-recognized right of the Palestinian people to self-determination, the international community is equally obliged not to recognize nor render aid to Israel’s grave violations and to work towards the realization of the Palestinian people’s right to self-determination.           

Finally, annexation constitutes a grave violation of the Palestinian people’s fundamental rights. It will further entrench suffering and have devastating consequences on the Palestinian people’s enjoyment of their human rights and fulfillment of their national aspirations, including by subjugating the population to an unlawful and discriminatory regime, in addition to violating the territorial integrity and political independence of the State of Palestine. Stopping annexation and ending occupation must come in tandem as continued occupation will erode the possibility and practicability of realizing Palestinian self-determination and exercising Palestinian independence and sovereignty in a viable Palestinian state, with grave consequences for the Palestinian people and the prospects for a just and peaceful solution. In this regard, not confronting annexation will undoubtedly have widespread ripple effects that shake the very foundations of the international legal system and thus endanger international peace and security.

 

 


[1] For a list of international condemnations of Israel’s plan to annex territory of the State of Palestine, see: OHCHR, Bachelet urges Israel to halt West Bank annexation plans, warning “shockwaves will last for decades”, 29 June 2020, available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26009&LangID=E ; UNSG, UN chief urges Israel to abandon annexation plans, 24 June 2020, available at: https://news.un.org/en/story/2020/06/1066972 ; Yesh Din, The potential impact of West bank annexation by Israel on the human rights of Palestinian residents, position paper, 20 April 2020, available at: https://s3-eu-west1.amazonaws.com/files.yeshdin.org/%D7%A0%D7%99%D7%99%D7%A8+%D7%A2%D7%9E%D7%93%D7%94+%D7%94%D7%A9%D7%9C%D7%9B%D7%95%D7%AA+%D7%A1%D7%99%D7%A4%D7%95%D7%97+4.20/The+Potential+Impcat+of+Annexation+on+HR.pdf ; The Elders, The Elders call for new Middle East peace plan to counter Israeli annexation threat, 11 May 2020, available at: https://www.theelders.org/news/elders-call-new-middle-east-peace-plan-counter-israeli-annexation-threat;  Michael Lynk, Statement of the Special Rapporteur on the Human Rights Situation in the Palestinian Territory Occupied since 1967 on the role of the EU with regards to the looming Israeli annexation of parts of the Palestinian West Bank, 26 June 2020, available at:    https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25991&LangID=e ; Israeli annexation of parts of the Palestinian West Bank would break international law – UN experts call on the international community to ensure accountability, 16 June 2020, available at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25960&LangID=E ; ‘An Open Letter to the Israeli Government Condemning Annexation [Final Update]’, 11 June 2020, available at: http://opiniojuris.org/2020/06/11/an-open-letter-to-the-israeli-government-condemning-annexation/ ; European Journal of International Law, 29 June 2020, available at: https://www.ejiltalk.org/editorial-the-legality-of-the-israeli-annexation-redux/ ; Amnesty International, Unlawful “annexation” plan promotes ‘law of the jungle’ and must be stopped, 1 July 2020, available at:       https://www.amnesty.org/en/latest/news/2020/07/israelopt-unlawful-annexation-plan-promotes-law-of-the-jungle-and-must-be-stopped/; FIDH, The international community must act swiftly to avoid annexation of Jordan Valley, 1 July 2020, available at: https://www.fidh.org/en/region/north-africa-middle-east/israel-palestine/the-international-community-must-act-swiftly-to-avoid-annexation-of ; and many others.

[2] R. Hofmann, “Annexation,” in Max Planck Encyclopedia of Public International Law (Oxford University Press, 2013), paras. 21 and 38; A peremptory norm of general international law (also known as a jus cogens norm) is defined as one “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character, see, Article 53, Vienna Convention on the Law of Treaties, 1969.

[3] Charter of the United Nations, Article 2(4), see for example, International Law Commission, Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur, 31 January 2019,A/CN.4/727, para. 56; see also, D. Raic, Statehood and the Law of Self-Determination, The Hague, Kluwer, 2002, pp.98-99

[4]UNGA (resolution 26/25 (XXV), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations,  24 October 1970, available at:             https://legal.un.org/avl/ha/dpilfrcscun/dpilfrcscun.html#:~:text=The%20Declaration%20on%20Principles%20of,the%20twenty%2Dfifth%20anniversary%20of

[5] Articles 7 and 8 of the Rome Statute of the International Criminal Court.

[6]Military and Paramilitary Activities in and against Nicaragua Merits, Judgment, I.C.J. Reports 1986, p. 14, para 185).

[7]Ibid, para.190

[8]Ibid

[9]Ibid, p.24

[10]Ibid, p.48

[11] ILC, Third report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur, UN Doc. A/CN.4/714, p. 67. 

[12] International Law Commission, Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations with commentaries thereto, 2016, p. 378.

[13]International Military Tribunal at Nuremberg, Judgment, 1 October 1946, p. 25; See also W. Schabas, ‘Origins of the criminalization of aggression: how crimes against peace became the “Supreme International Crime”’, in M. Politiet al (eds), The International Criminal Court and the Crime of Aggression (Ashgate Publishing Ltd), 17-32.

[14] Rome Statute, Article 8 bis (2), 2(a).

[15]Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War 1949 (adopted:

12 August 1949; entry into force 21 October 1950; 194 States Parties) Article 49.

[16] Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War 1949 (adopted:

12 August 1949; entry into force 21 October 1950; 194 States Parties) Article 47; see also, 4 J. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958).

[17] Michael Lynk, Report of the Special Rapporteur in the Situation of human rights in the Palestinian territories occupied since 1967, A/72/556, 23 October 2017, available at:      https://www.un.org/unispal/document/report-of-special-rapporteur-on-situation-of-human-rights-in-palestinian-territories-michael-lynk-advance-unedited-version/

[18] Lynk Report, 2017, paras 59- 63. See also: See, E. Benvenisti, The International Law of Occupation, Oxford, Oxford University Press, 2ed, 2012, pp. 349-351; Y. Ronen “Illegal Occupation and its Consequences”, Israel Law Review (2008) p. 208.

[19] UNGA Resolution 3414(XXX)( 1975) & UNGA Resolution 31/61(1976).

[20] UNGA Resolution 32/20(1977); UNGA Resolution 33/29(1978); UNGA Resolution 34/70 (1979); UNGA Resolution 35/122E (1980);  UNGA Resolution 35/207 (1980); and UNGA Resolution 36/147E (1981), see also: Ardi Imseis, “Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine 1967-2020” European Journal of International Law, Vol.XX No.XX, 2020, Pg. 15.

[21] For example, see: ECOSOC Resolution 2010/6 (2010); ECOSOC Resolution 2011/18 (2011); ECOSOC Resolution 2013/17  (2013); ECOSOC Resolution 2016/4 ( 2016); and ECOSOC Resolution 2018/10 (2018).

[22] UN GAOR, 57th Sess., 4488th Mtg., 3, UN Doc. S/PV.4488.

[23] Charter of the United Nations, Article 2(1); see also, J Castellino, International Law and Self-Determination (The Hague, Mrtinus Nijhoff, 2000), UNGA Resolution 1803 (XVII), Permanent sovereignty over natural resources (14 December 1962). See also UNGA Resolution 1314 (XIII), Recommendations concerning international respect for the right of peoples and nations to self-determination (12 December 1958); UNGA Resolution 1515 (XV), Concerted action for economic development of economically less developed countries (15 December 1960), Y. Shany, “Legal Entitlements, Changing Circumstances and Intertemporality: A Comment on the Creation of Israel and the Staus of Palestine”, Israel Law Review (2016) at 407-8; See too, A. Pellet “The destruction of Troy will not take place” in E. Playfair (ed) International Law and the Administration of Occupied Territories, Oxford, Clarendon Press, 1992, p.169 at pp.180-186.

[24] UNGA Resolution 1514 (XV) (1960).

[25]  UNGA Resolution 2625 (XXV) (1970).

[26]Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, p.16, at p.31, para. 52; This dictum was confirmed in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, of 25 February 2019, para. 161.

[27] Article 1 in both in International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social and Cultural Rights (1966).

[28]   See for example, A. Cassese, Self- Determination of Peoples. A Legal Appraisal, Cambridge, Cambridge University Press, 1995.                                                                      

[29]East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p 102.

[30]Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3

[31]Legal Consequences of the Construction of a Wall in the Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 199, para 155 (emphasis added); see also: Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33. See also, Judges Higgins, pp.211- 12, para 18, Elaraby, p.250, para 2.2, Kooijmans, pp.228-29, paras 31-33.

[32] See for example, UNSC Resolutions  242 (1967), 252 (1968), 267 (1969), 298 (1971), 476 (180), 478 (1980), and 2334 (2016).

[33] UNSC, Resolutions 2334 (2016), and specifically with regards to Jerusalem 478 (1980).

[34] See also, UNGA Resolution 73/158 (2018).

[35] UNGA Resolution 74/139 (2019).

[36] United Nations, Human Rights Council, Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, UN Doc A/HRC/22/63 (7 February 2013), para 101

[37] Israel’s Settlements in the Occupied Palestinian Territory, including East Jerusalem and the Occupied Syrian Golan, Report of the Secretary-General, 18 September 2012, UN Doc. A/67/375, para. 11.

[38] UNGA Resolution 3314 (XXIX) ( 1974).

[39]Ibid, p. 167, para. 75.

[40]Geneva Convention Relative to the Protection of Civilian Persons in Time of War (‘Fourth Geneva Convention’), article 147; Pictet, Jean, Commentary on the Fourth Geneva Convention, International  Committee of the Red Cross (‘ICRC’), commentary of Article 49(6), p. 283.

[41] Article 8 (2)(a) of the Rome Statute defines war crimes as: “Grave breaches of the Geneva Conventions of 12 August 1949, namely, any […] acts against persons or property protected under the provisions of the relevant Geneva Convention”.

[42] Prohibited under article 55 of the Hague Convention IV and 33 of the Fourth Geneva Convention; See, UNHRC, the Report of the Independent International Fact Finding Mission to Investigate the Implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013, A/HRC/22/63, paras 35-38; GA Resolution, Permanent sovereignty of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab population in the occupied Syrian Golan over their natural resources, A/C.2/71/L.35, 8 November 2016.

[43] Ardi Imseis, “Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine 1967-2020” European Journal of International Law, Vol.XX No.XX, 2020, Pg. 27.

[44] Articles on Responsibility of States for Internationally Wrongful Acts, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10), Art. 30 and 31.

[45]Ibid, Art. 40 and 41

[46] Ardi Imseis, “Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine 1967-2020” European Journal of International Law, Vol. XX No. XX, 2020, Pg. 13.

[47] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II.

[48] UNGA Res ES–10/6 (1999) (emphasis added). 

[49] UNGA Res ES-9/1 (1982). See also GA Res 38/180A (1983). 

[50]Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Reports 197.

[51]Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2014,para 159 (emphasis added); see also, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, ICJ Reports, Pg.168, paras.21,345.

[52] See also, UN Security Council Resolution 681 (1990); UN General Assembly Resolutions ES-10/2 of 5 May 1997, ES-10/3 (1997), ES-10/4 (1997), ES-10/6 (1999) and the Report of the Chairman of an Experts’ meeting held on the Fourth Geneva Convention in Geneva, 27-29 October, 1998, and the Declaration adopted by a Conference of the High Contracting Parties to the Fourth Geneva Convention convened on the basis of common Article 1 in Geneva, 5 December 2001. 

[53] Article 48 Articles on Responsibility of States for Internationally Wrongful Acts, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10).

[54] Theo Boutrche, “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”, 8 November 2016, available at: https://www.nrc.no/globalassets/pdf/legal-opinions/eo-common-article-1-ihl---boutruche---sassoli---8-nov-2016.pdf

[55] ICRC, Convention (IV) relative to the Protection of Civilian Persons in Time of War, Article 1, Geneva, 12 August 1949

[56] ICRC, Commentary of 2016, Article 1: Respect for the Convention, para. 119, available at: https://ihl-databases.icrc.org/ihl/full/GCI-commentaryArt1.


 [FA1]Placement of this phrase here makes it seem as though the Court made this determination in the Barcelona Traction judgement itself. I think the assertion is sufficiently made thereafter.

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