The Legality of the Occupation and the Problem of Double Effect

Published at Verfassungblog

The conflict between Israel and Palestine, or more accurately, between the two Peoples, has persisted for over a century. A tragic reminder of the unbearable costs of this conflict is the deadly October 7 attack by Hamas on Israel, and the ensuing war, which has led to horrific consequences, with thousands of Israelis and Palestinians killed, many severely injured, and extensive damage to the civilian infrastructure in the Gaza Strip. In these circumstances, an important question arises: what role should international law and international tribunals play in mitigating the grave harm to all those involved in the conflict?

1. The Distinction between Israel’s “Policies and Practices” and the Occupation

One well-developed aspect within international humanitarian law (jus in bello) is the examination of the legality of specific practices and policies of the parties involved, irrespective of the conflict’s origins. This element is well addressed in the recent Advisory Opinion of the International Court of Justice on the legal consequences of Israel’s occupation. As is common in asymmetric warfare, the Court focuses exclusively on the actions of one party, namely the State actor, an approach which creates an inherent bias and raises doubts about the fit of IHL norms to modern warfare. At the same time, the decision provides a comprehensive, and thus important legal analysis of central aspects of Israel’s “policies and practices”. The Court explains why Israel’s settlement policy, land confiscation, exploitation of natural resources, and more are illegal, as they violate the duty to exercise power for the benefit of the local population. Subject to the inherent limitations of IHL, this part of the Advisory Opinion is sound and its validity stands regardless of one’s position on the conflict itself, its underlying causes, and possible resolutions. However, the second, more fundamental aspect of the decision, which addresses the legality of the occupation itself, is more contentious.

An important potential role of international law and international tribunals is to assist the parties to resolve the conflict, by examining the legality of their use of force (jus ad bellum). A finding that the use of force by one party is unjustified and therefore illegal could potentially assist, even if only indirectly, in paving the way to resolving the conflict. This aspect is at the heart of the Advisory Opinion under consideration here. The Court’s central finding is that Israel’s occupation itself, irrespective of the specific policies and practices it employs, is illegal. The Court asserts that the occupation violates the Palestinian people’s right to self-determination, a right which “cannot be subject to conditions on the part of the occupying Power, in view of its character as an inalienable right” (para. 257). Consequently, it determines that “Israel has an obligation to bring an end to its presence in the Occupied Palestinian Territory as rapidly as possible” (para. 267). The implicit assumption of this approach is straight-forward: the Court views Israel as the aggressor, implying that an end to the conflict depends solely on Israel halting its unjustified and thus illegal use of force against the Palestinians, particularly by withdrawing from all Occupied Palestinian Territory.

2. The Missing Analysis: The Occupation and Self-Defense

The use of force, in itself, is not inherently illegal. A country may justifiably use force, which may result in temporary occupation, if such measures are required for self-defense against deadly attacks. From the Israeli perspective, the occupation is necessary to prevent, in the absence of a peace agreement, what its legendary Foreign Minister Abba Eban referred to as “Auschwitz lines”. Surprisingly and without any explanation, the Court decided to completely ignore the possibility that the occupation is a means of self-defense. The Court mentions in passing that “Israel’s written statement […] contained information on [its] security concerns” (para. 47), but it avoided addressing these concerns or even mentioning their nature. This choice to ignore the possibility that the occupation is aimed at and needed for self-defense is incompatible with both law and morality.

Israel’s prolonged occupation likely serves two purposes: one, which is impermissible, is the acquisition of territory; the other, which is permissible, is to address security concerns. It is questionable to conclude, as the Court did, that the occupation is illegal because “Israel’s security concerns [cannot] override the principle of the prohibition of the acquisition of territory by force” (para. 254). As long as the (temporary) acquisition of territory is a side-effect of the permissible purpose, the occupation may be justifiable, subject to proportionality constraints, despite the existence of the additional, unjustifiable aim (this situation is related to the doctrine of double effect in ethics). Israel’s security concerns cannot justify the acquisition of territory by force; but they may justify continuing the occupation, until the security concerns are met.

The omission to consider the possibility that the occupation is needed to meet Israel’s security concerns appears to be a deliberate choice by the Court. Consider, in this respect, two aspects of the decision—one of form and the other of substance.

Regarding form, in describing the factual background of the conflict, the Court is careful to avoid mentioning any aggression committed by the Palestinian side, possibly assuming that such omission is essential to avoid addressing Israel’s security concerns. For instance, in describing the 1948 war, the Court wrote (para. 53):

“On 14 May 1948, Israel proclaimed its independence with reference to the General Assembly resolution 181(II); an armed conflict then broke out between Israel and a number of Arab States, and the Plan of Partition was not implemented”.

The description of an armed conflict that “then broke out”, as if it was a force of nature rather than what it really was—an illegal use of force against Israel by the Palestinians and the Arab countries supporting them—serves the Court’s narrative of ignoring the risks to Israel’s very existence. The same is true regarding the three other major rounds of violence in the region: the 1967 war is described as a conflict that simply “broke out between Israel and neighboring countries” (para. 57), again ignoring the fact that the war resulted from explicit threats against Israel by Arab countries, which were also translated into acts of aggression. Similarly, the Court stated that “in October 1973, another armed conflict broke out between Egypt, Syria, and Israel” (para. 60), omitting any reference to the identity of the aggressors, namely the Arab countries. Most importantly, the Court used similar language when referring to the terror attacks launched by Hamas: “following an increase in acts of violence from the West Bank in the early 2000s, Israel began building a ’continuous fence’” (para. 67). The Court referred here to “acts of violence”, avoiding the term terror and the fact that these “acts of violence” resulted in the murder of more than 1,000 Israeli citizens; and it chose to refer to the perpetrators as some mysterious people “from the West Bank”, concealing the fact that they were organized Palestinian militant groups, who operated from areas under Palestinian Authority control following the Oslo Accords. This deliberate choice of words is telling.

3. The Legality of Israel’s Blockade of the Gaza Strip before October 7

As for substance, the Court’s profound mistake is illustrated by its legal analysis of the situation in the Gaza Strip before October 7. According to the Court, Israel’s disengagement from Gaza in 2005 did not end its occupation, because, so goes the argument, Israel maintained effective control “over, inter alia, the airspace and territorial waters of Gaza, as well as its land crossings at the borders, [and] supply of civilian infrastructure, including water and electricity […]” (para. 89). According to the Court, even this type of occupation is illegal, as a matter of jus ad bellum, because it “impairs the enjoyment of [the Palestinians’] right to self-determination” (para. 241). Leaving aside the debate whether the position that Israel remained an occupying power, my interest here is with the conclusion that the Court derived from this finding, namely that this form of (so-called “functional”) occupation was inherently illegal.

I suggest that this approach contradicts basic common sense. To see why, a brief reminder of the recent history of the Gaza Strip is in order. In 2005, Israel unilaterally uprooted all its settlements in Gaza and ended its control over this 360 square-kilometer area (which is supposed to be part of the future Palestinian State, along with the 5,800 square-kilometer area known as the West Bank). Israel’s disengagement granted Egypt exclusive control over Gaza’s southern border, beyond Israel’s reach. Israel handed power in Gaza to the Palestinian Authority, led by the PLO, the representative of the Palestinian People (the entity which also rules parts of the West Bank, according to the 1993 Oslo Accords). However, in 2007, Hamas took control of the Gaza Strip (after winning the elections there), murdering hundreds of PLO officials and supporters. Since then, Hamas and other terrorist organizations have launched constant attacks against Israel, imposing life-threatening risks on nearly 100,000 people living in Israel’s Western Negev. While Israel allowed thousands of Palestinians to enter Israel for work, it also imposed a blockade on the borders it controls. This measure was designed to prevent Hamas from obtaining weapons, while allowing supplies for the civilian population. However, as tragically revealed on October 7, 2023, this measure proved futile. The border between the Gaza Strip and Egypt was effectively breached, enabling Hamas to obtain a vast number of weapons. It turned the Gaza Strip into a fortress and trained its army of 50,000 strong militants to attack Israel, a plan ultimately carried out on October 7.

Given these facts, the Court’s approach is wrong in two main levels. Assume, counter-factually, that Israel’s control over part of the borders of the Gaza Strip is sufficient to classify it as an occupying power.  One difficulty is the Court’s ruling that it was impermissible for Israel—in terms of jus ad bellum—to take the measures it did from 2007 until the war. As indicated, these measures could not have achieved any aim other than meeting Israel’s most urgent security concerns. The finding that Israel was not allowed to employ even the very mild measures it did, irrespective of whether they were proportional or not, simply because they somehow “impair the enjoyment [of the Palestinians] of the right to self-determination”, is hard to understand even if it were made before the October 7 massacre. Making such a ruling, as the Court did, after Hamas committed the very horrors that Israel’s “occupation” was aimed at preventing, proving that Israel’s security concerns are real, casts doubt on the Court’s impartiality.

But the Court’s even more troubling mistake is one that has a direct effect on the analysis regarding the legality of the occupation of the West Bank. The case of the Gaza Strip illustrates, in the most tragic way, the consequences of Israel unilaterally ending the occupation, without a peace agreement. The Israeli government was right in bringing an end to the occupation of the Gaza Strip. It was wrong, however, in doing so without any agreed upon arrangements with the Palestinian Authority, which would have put in place safeguards to ensure that these arrangements are fulfilled. The Court’s finding that Israel must repeat the 2005 disengagement and implement it unilaterally in the West Bank, and that it is even denied the power to limit the Palestinians’ ability to bring weapons into the area, as this would amount to a continuation of the occupation which is absolutely prohibited, is, to use an understatement, unsound.

4. The Way Forward: The Role of the ICJ in Achieving Peace

The approach reflected in the ICJ Opinion assumes that all it takes for restoring justice and resolving the conflict is for Israel to end the occupation. This simplistic position is not only legally flawed but also politically counterproductive. It is an approach that is rejected by an overwhelming majority of the Jews in Israel, from all sides of the political spectrum. The many Israelis (probably around one-half of the population) who strongly support in the cause of fulfilling the Palestinians’ right to self-determination, are also rational individuals, who care for their lives, and thus just as strongly object to a unilaterally withdrawal from the West Bank, without a peace agreement.

To assist in resolving the conflict, what is needed is much more nuanced, well-informed approach, which addresses the just concerns of both sides. The current Israeli government should be criticized for its principled objection to the establishment of a Palestinian State next to the State of Israel. Similarly, the Palestinian leadership should be criticized for its principled objection to the existence of Israel as a Jewish and democratic State, and for security arrangements that will minimize the risk of a repeat of the Gaza Strip scenario. Both sides should be pushed to resume negotiations in good faith and to accept the principle of two states. The Advisory Opinion is a missed opportunity in pushing both sides towards the inevitable two-states solution.

To my view, the Court should have ruled that Israel is permitted to continue the occupation, as long as two conditions are met: First, its practices and policies are compatible with IHL; and second, the Israeli government explicitly declares that the occupation is a provisional measure of self-defense and that it is committed to the establishment of a Palestinian State in this territory, next to Israel, subject to a peace agreement.