The future of the occupation of the Palestinian Territories after Gaza: scenarios, stakeholders and ‘solutions’

Scalpel solidarity: surgery in Palestine

Abstract: The International Court of Justice’s (ICJ) Advisory Opinion on the Israeli Occupation of the Occupied Palestinian Territory (OPT) issued in July 2024 is a turning point for the law of occupation. This article focuses on two major developments in this decision: first, the ICJ’s holding regarding the legality of Israel’s presence in the territory, which I argue in fact finds the Israeli occupation to be illegal; and second, the ICJ’s holding regarding the status of Gaza, through which I claim the ICJ adopted a functional approach to the question of the existence of occupation. The article points to how the ICJ’s approach to occupation in the Advisory Opinion shifts the law of occupation, as a matter of <italic>lege lata</italic>, in a normative and functional direction. The Advisory Opinion took an important step in these directions. However, I argue that while the ICJ bases its holding on the legality of Israel’s presence in the OPT on norms supposedly external to the law of occupation, anchored in <italic>jus ad bellum</italic> (i. e., prohibition on the use of force) and general international law (i. e., self-determination), in fact the determination about the legality of occupation transcends the <italic>jus ad bellum</italic>/<italic>jus in bello</italic> divide. Indeed, a better interpretation is one that points to how illegality stems from violations of the principles of the law of occupation itself (as part of <italic>jus in bello</italic>), which are shaped by general international law (including <italic>jus ad bellum</italic>). I further argue that the ICJ’s reasoning points to its <italic>de facto</italic> adoption of a functional approach to the existence of occupation and that a normative and functional approach are mutually complementary.

A prominent position on the utility of the law of occupation as a regulatory framework for transformative state reconstruction is that the principle of conservation, which requires that the existing infrastructure remains unaltered, renders it unsuitable. There is, however, no reason why the law of occupation could not be modified to be more facilitative of reconstruction of the state and civil infrastructure. In fact, when the legal right to self-determination is treated as the basis for state sovereignty, the chance of modification is increased. This is because such an understanding of sovereignty improves the likelihood of more extensive change and development under the law of occupation – if cast as working towards the realisation of genuine self-government based on the will of the people (the essence of the right to self-determination) – being accepted as consistent with the law’s rationale of preservation of sovereign rights. Indeed, the prominence of democratic reconstruction, a concept with strong links to the right to self-determination, in the occupied Palestinian Territories and occupied Iraq, might incline one to the view that the legal right of self-determination has already stimulated modification of the law of occupation. It is because an appropriate regulatory framework for international involvement in state reconstruction could help realise international order, and to clarify the substance of the law applicable to actual belligerent occupiers, that this chapter addresses both the potential and reality of the impact of the right to self-determination on the law of occupation as a framework for state reconstruction. A central argument is that the legal right to self-determination is an essential element in the explanation for international acceptance of recent practice in breach of the law of occupation but has not yet stimulated legal modification.

This research focuses on an increasingly important question associated with the state of military occupation as part of International Humanitarian Law, namely, to what extent the rights and duties of an occupying power are to be broadened or otherwise minimized when an occupation of a foreign territory lasts for a long period of time? This question is necessitated by the practices of some occupying powers that claim their ‘original’ authority over occupied areas should exceed the original rights embodied in the legal corpus on military occupation due to the prolonged nature of their military presence. This research focuses on the state of the Israeli military occupation over the Occupied Palestinian Territories (OPTs.) and found that the Israeli practices are calculated in this direction, i.e., the expansionist policy, which ultimately conflict with the corpus of rules of international law on military occupation.

Too many normative instances, that were originally external to the belligerent occupation’s regulatory framework have settled, over the last decades, into that body of law. I refer, for instance, to the Occupying Powers’ demand to intervene significantly in the economic, political and social life of the occupied territory in the light of the need to conduct populations subject to undemocratic regimes, or in very backward economic conditions, on the road to democracy and economic development; or to the expectations that the Occupying Powers fully implement some core human rights obligations incumbent upon them. However, because of the lack of useful information in the current legal framework of international humanitarian law about the scopes that should legitimately lead the activities of the Occupying Powers, these claims threatens to deprive of legal effect the statement that occupation would not implement any transfer of sovereignty to the occupant (the so called ‘sovereign-based’ approach laid down by Articles 42 and 43 of the Hague IV Regulations). After a brief explanation of the doctrinal foundations of belligerent occupation’s law in the broader picture of the more recent practice of Israel in the occupied Palestinian territories (with specific reference to the 2017 Law for the Regulation of Settlement in Judea and Samaria), the Article will focus on the analysis of the relationship between international human rights law (IHRL) and belligerent occupation’s law – in particular by stressing the risks that could arise when an Occupying Power decides to act in order to implement the right to self-determination of the occupied population. The aim is to investigate not only, form a de lege lata perspective, how the more recent practice of Occupying Powers has been influenced by IHRL but also, from a de lege ferenda perspective, to which extent (if any) human rights norms would contribute to fill the gaps and loopholes of the existing regulatory framework on belligerent occupation.

Various political realities influence the Israeli occupation of the West Bank and the Gaza Strip and, more generally, the vitality of the international law of occupation. The law of occupation—though ill-suited to modern international relations and ill-equipped for prolonged occupation—has been almost universally invoked as applicable to the Occupied Palestinian Territory (OPT). At the same time, international human rights law is increasingly viewed as applicable to occupation. This creates a dilemma for Israel because international humanitarian law and international human rights law contain conflicting prescriptions and policy goals with respect to the administration of occupied territory. In many instances, occupants seek United Nations Security Council action in order to reconcile this tension and to secure legal and political cover for their actions. By acting under Chapter VII of the United Nations Charter; the Security Council can create a select legal patchwork applicable to a particular occupation. This use of Chapter VII resolutions by the Security Council to create international law by fiat is an important trend in modern occupation. Yet geopolitics determines access to—and the content of—such resolutions, and the sensitive political context of the OPT currently makes this avenue unavailable to Israel. For the same reason, opponents of the Israeli occupation are unable to secure Security Council action to clarify and enforce Israeli legal obligations in the OPT. This Article considers these issues from the perspectives of both Israel and Palestinians in order to examine why the relative gain and loss in each case is not immediately clear. This Article also discusses how the legality of Israeli conduct in the OPT may be gauged in light of the conflicting international legal obligations imposed by human rights law and the law of occupation. A broader exploration of the impact of these phenomena reveals that these political realities serve to increase the influence of the Security Council while further undercutting the utility and relevance of the international law of occupation.

In recent years the question of the lawfulness of economic activities in occupied territories has emerged as a matter of significant debate in international law. A number of non-governmental organizations and scholars maintain that international law prohibits economic relations with occupying states and this extends to territories under their control. Still, the legal framework governing the lawfulness of such relations remains unclear. In light of this, the present contribution aims to explore the lawfulness, under international law, of economic dealings by third party private actors in territories under prolonged occupation. It is argued that, since corporations are not direct holders of international law obligations, the duties of non-recognition and non-assistance do not extend to their activities. Similarly, it is shown that the development of a law of individual criminal responsibility in international law has not yet been accompanied by a regime of corporate criminal responsibility, thereby affirming the absence of any formal international normative dimension of transnational corporate activity. In the light of the inadequacy of traditional legal instruments to regulate corporate activity in occupied territories, the article finally turns to one of the main soft-law instruments governing such activity, namely the 2011 UN Guiding Principles on Business and Human Rights (UNGPs). The article provides some concrete examples of how the UNGPs have been successful in dissuading companies from carrying out economic activities in the occupied Palestinian territories and in the occupied Western Sahara. The main argument advanced here is that, in the absence of a hard regulatory framework governing corporate activities, soft-law instruments, such as the UNGPs, show great potential in bringing about a change of corporate conduct towards occupied territories. More fundamentally, this practice will hopefully lead to the adoption of a hard instrument on the topic.

Le contexte d’occupation et de morcellement du territoire palestinien interroge sur l’organisation du système de santé et notamment de la médecine de première ligne. Est-ce que le contexte géopolitique est à l’origine de spécificités et/ou de variations d’exercice ? Nous avons étudié la pratique des médecins généralistes en Cisjordanie en identifiant les facteurs extérieurs d’influence de cette pratique. Une enquête de terrain (du 03 au 16 mars puis du 01 juillet au 31 août 2014) s’est appuyée sur une approche qualitative en réalisant des entretiens semi-structurés avec des médecins généralistes. Le contexte géopolitique, économique et structurel de la Palestine impacte leur exercice professionnel : les médecins sont isolés sur le territoire et dans le système de santé. Ils assurent des missions communes en soins de premier recours mais ont des difficultés pour répondre efficacement aux problèmes de santé des palestiniens notamment pour optimiser la prise en charge des maladies chroniques. Le développement de la médecine de famille en Palestine doit s’appuyer sur l’expérience des médecins généralistes et prendre en compte leurs conditions d’exercice.

The law and practice concerning the responsibilities of businesses and the obligations of their home states in relation to private dealings in occupied territory are under-developed. The establishment of a database by the United Nations (UN) Office of the High Commissioner for Human Rights to monitor the activities of corporate actors in the Occupied Palestinian Territory (OPT) is an opportunity to provide much-needed guidance on the scope of application of existing international law in this paradigmatic case of a high-risk business environment. This article engages with the contribution of this initiative to the regulation of transnational corporate dealings through two normative issues: the structural characteristics and effects of the violations taking place in certain business environments maintained in the OPT on the responsibilities of business and home states; and the various modes through which businesses become directly linked with and contribute to the illicit property rights regime underpinning the existence of settlements and the serious human rights abuses perpetuated by their maintenance.

During more than forty years of occupation, Israel, the Occupying Power, has sporadically expelled Palestinian individuals from the Occupied Palestinian Territory. Whilst this was protested against as unlawful by human rights defenders, the practice was upheld by the Israeli High Court on security grounds. Recently, cases of expulsions from the West Bank have become more frequent and they are no longer based on security considerations. The Israeli policy of expulsions has further been formalised through military legislation. Now, every person in the West Bank whose registered address in the Palestinian Population Registry is not in the West Bank must hold a permit in order to stay in the occupied territory. In the absence of such a permit, an individual is considered infiltrator and subject to prosecution and expulsion. Ten of thousands of Palestinians whose registered address is in the Gaza Strip and which have been prevented by Israel from changing their address are currently exposed to expulsion from the West Bank to Gaza. This article analyses the Israeli policy under international humanitarian law, mainly under the law of occupation. It explores the prohibition on forcible transfers and deportations from occupied territory as well as its implementation by the Israeli High Court. It further discusses core issues such as the definition of protected persons in the Fourth Geneva Convention, their right to live and reside in the occupied territory and the powers granted to the Military Commander in occupied territory.KeywordsIsraelOccupied Palestinian territoryOccupationDeportationsForcible transfersProtected personsArticle 49Fourth Geneva conventionArticle 43Hague regulationsCustomary IHL

The first edition of Eyal Benvenisti's The International Law of Occupation, published in 1993, was the first thorough treatment of occupation law to appear in English in 30 years. Not since Gerhard van Glahn's volume of 1957 had a scholar comprehensively surveyed this critical area of law. An update was long overdue. The seemingly clear rules of the 1907 Hague Regulations and 1949 Fourth Geneva Convention appeared to be receding in importance, as few states in the post-World War II period acknowledged their status as occupiers; Israel's prolonged occupation of the Palestinian territories challenged the assumption of occupation as a temporary phenomenon; few governments ousted in recent occupations went into exile to await a return to power, thus calling into question occupation law's focus on protecting the prerogatives of the de jure regime; and occupiers had seemingly honoured the conservationist principle - the limitation on an occupier's legislative authority most famously embodied in Article 43 of the Hague Regulations - mostly in the breach. States themselves provided little help in making sense of these and other developments. The discussions of occupation law in the US and UK military manuals, for example, had not been updated since the late 1950s. With the striking exception of Israel in the Palestinian territories, occupation law appeared to be receding from relevance. Now Benvenisti has published a second edition, adding almost 150 pages of text and several new chapters covering topics not addressed in the first edition. One is tempted to say that the second edition is even more overdue than the first. If the first edition sought to rescue occupation law from irrelevance, the second edition seeks to make sense of an explosion in state practice, judicial opinions, UN-sponsored activity, emerging cognate doctrines, and scholarly commentary, all of which have �

In fact, the defenders of Israel on campus are in deep trouble, not because student well-being is at risk but because the rickety assemblage of distortions and myths used to justify support for Israeli policies can't withstand scholarly scrutiny. Having lost the actual arguments, Israel's defenders have now declared war on argument itself.--Saree Makdisi, 2015 I begin below with a brief personal anecdote that seeks to answer the title's question in the strong affirmative. Ominously, there are efforts currently afoot in the Israeli Knesset and stateside in the U.S. (Salita 2014) to pass a specific law designed to punish any form of boycott by individuals or institutions against Israel. If this materializes, it will place freedom of expression in the public sphere in Israel in severe jeopardy. It also will blacklist many academics outside the country, preventing them from entering Israel, as was the exemplary case with Professor Noam Chomsky, scheduled to lecture at Birzeit University in Ramallah in May 2010, but denied entry. Although Chomsky calls for end of Israeli military occupation of Palestinian lands, he does not believe that a boycott is practical, and urges that efforts must focused more directly on ending the military occupation. In March 2013, I landed at Tel Aviv airport to attend the Diaspora Conference at An-Najah University, Nablus, West Bank. I was told by the conference organizers that transportation for me and other participants had been arranged. I could not rent a car from the airport and drive it through the Palestinian territories due to restrictions by the Israeli rental car companies related to lack of insurance coverage. After waiting for almost two hours at the airport, I was approached by a taxi driver of an Israeli firm who had been hired to drive me to an entry point to the West Bank, near the city of Qalqilya. As we approached the West Bank, he started coordinating my continuing trip to Nablus with another taxi driver coming from opposite direction to meet us on the western side of the Green Line boundary. I crossed the Green Line, entering the West Bank without inspection. Significantly, if I had come from the West Bank, seeking to enter Israel, I would have faced a regimen of strict inspection and questioning by Israeli border guards at the crossing point into Israel. From that point of entry to the West Bank, I continued my trip with the other taxi driver to Nablus. This second taxi had a Palestinian plate number. It would not have been allowed entry into Israel in any case. The grueling trip took almost four hours, crossing less than thirty miles. I am somehow privileged to be able to attend conferences on both sides of the Green Line, due to my Israeli citizenship along with my Canadian passport. The same is true for all Israeli scholars. This is not the case for Palestinian scholars residing in the West Bank or in Gaza Strip. For them, they cannot enter Israel without Israeli military permission, and entry is seldom granted without an exacting intelligent check. Israeli scholars enjoy the privilege of movement across the Israeli-imposed boundary lines inside Palestine/Israel and are able to drive through boundary crossing points smoothly. While Israeli academics have the luxury of organizing conferences inside their universities and do not experience any hassle along their path of producing knowledge, their counterparts in the Palestinian territories continue to endure the nightmare of the Israeli military occupation and in the case of Gaza, horrendous siege. Of course, many Israeli academics wish that Palestinians could come and participate in the Israeli university conferences and academic endeavors, but for their own political reasons and benefit. They expect the Palestinian participant to shut one eye to Israel's occupation of their lands and institutions while keeping the other eye open on what the conference entails. Such views are rarely openly expressed by Israeli academics. …

International humanitarian law (IHL) categorically prohibits all types of collective punishment. However, neither treaty nor customary sources provide a clear definition of what should be deemed a collective punishment. Given this lack of clarity, it is no surprise that little attention has been paid to the way in which resorting to different forms of collective punishment during a belligerent occupation might lead to additional violations of international law, including IHL and international human rights law (IHRL). This article explores the notion of collective punishment under the law of occupation and connects it with other relevant rules of international law. Based on this analysis, and using the Occupied Palestinian Territory as a case study, the article argues that violating the prohibition of collective punishment in a situation of belligerent occupation in all likelihood will trigger the breach of other concomitant rules of IHL and IHRL, thus shedding light on the scope of the prohibition contained in Article 33 of the Fourth Geneva Convention.

The West Bank, Gaza Strip, and the city of Jerusalem are occupied territories occupied by Israel following hostilities in the 1967 war. Israel was a State party to the Fourth Geneva Convention of 1949, which refused to apply it to the occupied territories since the common article I of the four Geneva Conventions showed respect for and universal adherence to the principles contained therein. However, Israel has not complied with this but has committed serious violations of the rights of Palestinian citizens, criminalized under the Rome Statute of the International Criminal Court. The research aims to hold Israel internationally responsible for its illegal actions in the occupied Palestinian territories for violating the provisions of international law and resolutions of international legitimacy. The importance of the search for international criminal and civil accountability of Israel for its human rights violations in the Occupied Palestinian Territories is important, as Palestine's accession to the International Criminal Court comes as an important step in terms of ending the impunity of Israeli war criminals in addition to prosecuting them wherever they are regardless of their nationality and the place where the crime was committed in accordance with universal jurisdiction. The problem of the research revolves around: How long will Israel remain without international accountability for its violations of the rights of citizens in the Occupied Palestinian Territory? The researcher followed the descriptive and analytical approach and reached a set of conclusions and recommendations, the most prominent of which are: holding Israel internationally responsible for its internationally wrongful actions in the occupied Palestinian territories represented by the violation of international obligations. Among the most prominent recommendations are the implementation of the recommendations of Amnesty International's report regarding the call of the International Criminal Court to consider the crime of apartheid as part of its investigations into the Palestinian situation before it and that all States exercise universal jurisdiction to bring the perpetrators of apartheid crimes to justice.

Are obligations assumed by states under international human rights treaties applicable extraterritorially during periods of armed conflict and military occupation? This was one of the issues addressed by the International Court of Justice (ICJ) in its advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The Court indicated that the obligations assumed by Israel under the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESC), and the Convention on the Rights of the Child (CROC) applied in the occupied territories and that the construction of the security barrier constituted “breaches” by Israel of various of its obligations under these instruments.