EUROPEAN COUNCIL ON FOREIGN BRIEF POLICY RELATIONS ecfr.eu ISRAEL’S UNLAWFULLY PROLONGED OCCUPATION: CONSEQUENCES UNDER AN INTEGRATED LEGAL FRAMEWORK Valentina Azarova June 2017 marks 50 years of Israel’s belligerent occupation of Palestinian territory, making it the longest occupation SUMMARY in modern history. The maintenance and expansion of • An unlawfully prolonged occupation arises settlements and associated infrastructure in the West Bank, when an occupying state seeks to permanently the exploitation of natural resources for the benefit of transform the international status, government Israel’s economy, and policies that encourage the transfer or demographic character of a foreign territory, of Israeli citizens into occupied territory and result in the including through de jure or de facto annexation. forcible of transfer Palestinians within and outside that territory, all point to Israel’s intent to permanently change • Israel’s continued use of force to prolong its occupation the status of Palestinian territory. Fifty years on, Israel has, is not justified by military necessity, but reflects in fact, undertaken the de jure and de facto annexation of government-sanctioned policies and practices of large parts of occupied Palestinian territory. creeping annexation. As such, Israel’s occupation of Palestine has become unlawfully prolonged. Military occupation is permitted in international law only if it is temporary and based on military necessity, but in the case • Diligent enforcement is needed of all of Israel’s occupation there is no end in sight. International applicable international law, which includes law contains clear guidelines on how occupations should international humanitarian law, international work: a territory must be returned to its temporarily human rights law, the laws on the use of force displaced sovereign, and the Occupying Power must be able and on the self-determination of peoples to to justify its continued control over the territory at all times further Israel’s withdrawal from the territory. on the basis of military necessity. The Israeli government, however, shows no indication that it will fully withdraw • Third party states and international actors are legally from the occupied Palestinian territory and transfer control obligated to ensure non-recognition of Israel’s back to the Palestinian sovereign. internationally unlawful acts. They should be at the forefront of efforts to further Israel’s compliance with Governments and legal scholars alike have focused international law. The EU and other third parties on the conflict management provisions enshrined in should use the 50th year of Israel’s occupation to international humanitarian law (IHL) and international comprehensively review their dealings with Israel and human rights law (IHRL) in their assessments of Israel’s Israeli entities, to ensure that they are not recognising actions and their effects. But Israel’s prolonged occupation as lawful Israel’s internationally unlawful acts. of Palestinian territory has not only resulted in pervasive violations of these international laws, such as the 1949 June 2017 Fourth Geneva Convention, it has been based on rejection Western Sahara, and, most recently, Crimea.2 of their applicability in the first place.1 Attempts by third states and international actors to enforce IHL and IHRL What is occupation law? have failed to bring about Israel’s compliance because this partial legal framework neither adequately captures the International law recognises the military occupation of an legal consequences of continued occupation with the aim of enemy’s territory as a legitimate method of warfare. The acquiring the territory, nor generates appropriate remedial law of armed conflict, also known as IHL or jus in bello, action for such a situation. regulates Occupying Powers. The rules governing belligerent or military occupation − hereafter referred to simply as The situation in Israel/Palestine today is at a critical juncture. ‘occupation’ − come into effect as soon as a situation of The Middle East Peace Process (MEPP) has proven a perennial occupation exists, as determined by the fulfilment of a series failure. Meanwhile, Israel has ramped up its settlement- of criteria enshrined in IHL. There is an occupation when a building activity to some of the highest levels ever seen. A state, that is “not the recognised sovereign of the territory”, more diligent application of international law norms beyond gains “effective control” over a foreign territory by force.3 IHL and IHRL is therefore needed to ensure the effective Contrary to Israel’s arguments, the applicability of the law implementation of international law in the unlawful situation of occupation does not depend on the territory having been created by Israel’s prolonged occupation, and to mobilise, taken militarily from its “rightful sovereign” at the time legitimise, and incentivise responses from third parties to when it was first occupied, which in the case of Palestinian bring the occupation to an end. This paper identifies a legal territory was from Jordan and Egypt. This view was also framework that foregrounds the obligations of third parties affirmed by the International Court of Justice (ICJ).4 This not to give legal effect to the occupation, and in doing so, may specialised body of law only regulates the conduct of an provide a way forward for ending the occupation. occupying state and does not assess the legality of the force it uses during the invasion phase of the occupation, or UN Security Council Resolution 2334 reiterates the the force it uses to maintain its presence in the occupied importance of states abstaining from recognising Israel’s territory afterwards.5 These assessments are based on the internationally unlawful acts. To do so, they are required rules on the use of interstate force, set out in the United to distinguish between Israeli and Palestinian territory, Nations Charter, also known as the jus ad bellum. and exclude settlement-based entities and activities from their dealings with Israel. Third party actors – including the The normative framework governing an Occupying Power’s European Union and its member states – have taken notable, actions balances the military necessity of occupation with but still insufficient, steps to this effect in recent years. The the imperative of humanitarian protection of the population EU and its member states have a deep-seated commitment in the occupied territory. The law of occupation allows the to the observance of international law, on which their ability Occupying Power to use force, as long as it is for reasons to uphold the integrity and effectiveness of their own legal of genuine military necessity. In limited circumstances, the order hinges. They should be at the forefront of efforts to occupier may take steps that seriously infringe the rights of encourage Israel’s compliance with international law, and the population in the occupied territory, such as temporarily ISRAEL'S UNLAWFULLY PROLONGED OCCUPATION: CONSEQUENCES UNDER AN INTEGRATED LEGAL FRAMEWORK CONSEQUENCES UNDER AN INTEGRATED PROLONGED OCCUPATION: ISRAEL'S UNLAWFULLY further its full withdrawal from Palestinian territory in reassigning people’s place of residence to protect them from order to bring the occupation to an end. harm due to the occupier’s ongoing military operations.6 The legal framework identified by this paper reveals how third parties that are committed to respecting international 2 On other occupations, see: Paul Wrange, “Occupation/Annexation of a Territory: law compromise the integrity of their internal legal orders Respect for International Humanitarian Law and Human Rights and Consistent EU and public policy commitments by giving effect to Israel’s Policy”, European Parliament, July 2015, available at http://www.europarl.europa.eu/ thinktank/en/document.html?reference=EXPO_STU(2015)534995; “Illegal Economic internationally unlawful acts in relation to Palestinian and Other Activities in the Occupied Territories of Azerbaijan”, Azerbaijan Ministry of Foreign Affairs, March 2016, available at http://mfa.gov.az/files/file/MFA_Report_on_ territory. The same framework may be applied to other the_occupied_territories_March_2016_1.pdf; “Third Quarterly Report (July - September ongoing situations of prolonged occupation that resemble 2016) of the Ministry of Foreign Affairs of Georgia on the Human Rights Situation in the Occupied Regions of Georgia”, the Ministry of Foreign Affairs of Georgia, available annexation or otherwise permanently transform the at http://smr.gov.ge/Uploads/VII__1b08da4c.pdf; “Rights in Retreat: Abuses in www.ecfr.eu Crimea”, Human Rights Watch, 17 November 2014, available at https://www.hrw.org/ occupied territory, including northern Cyprus, Nagorno- report/2014/11/17/rights-retreat/abuses-crimea; Thomas Hammarberg, “UN Special Expert on Human Rights in the Transnistrian Region of the Republic of Moldova, Report”, Karabakh, Transnistria, South Ossetia and Abkhazia, United Nations, 14 February 2013; “Occupation and Other Forms of Administration of Foreign Territory”, the International Committee of the Red Cross, 11 June 2012, available at https://www.icrc.org/en/publication/4094-occupation-and-other-forms- administration-foreign-territory-expert-meeting. 3 Article 42, Hague Regulations 1907. Article 2(2), Geneva Conventions 1949; and “Commentary: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva”, the International