Articles for tag: Besatzung, IGH, Israel-Gaza-Krieg, OPT

Unseating the Israeli Government from the UN General Assembly in case of non-compliance with the Advisory Opinion of 19 July 2024

This post analyses the possibility of unseating the Israeli Government from the UN General Assembly in case of non-compliance with the Advisory Opinion of 19 July 2024. The Advisory Opinion provides a particularly strong legal basis – grounded primarily in the right to self-determination – to unseat Israel’s government from the General Assembly until it complies with the Opinion – as the Assembly did with South Africa fifty years ago.

15. Oktober 2024

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Third State obligations in the ICJ Advisory Opinion

What are the possible implications of the Advisory Opinion for the United Kingdom and Cyprus with regard to the UK’s arms and surveillance support to Israel through its military bases in Cyprus? This post argues that the third State obligations identified by the Court, including the duty not to render aid or assistance in maintaining the illegal situation, also apply to the current war in Gaza.

14. Oktober 2024

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The Obligation of Non-recognition, Occupation and the OPT Advisory Opinion

In the OPT Advisory Opinion, the ICJ considered that Israel’s abuse of its position as an Occupying Power, through de jure and de facto annexation of the Occupied Palestinian Territory (OPT) and continued frustration of the right of the Palestinian people to self-determination, renders Israel’s presence in the OPT unlawful. In determining the legal consequences of this illegal presence, the Court held by a vote of 12:3, that all States are under an obligation “not to recognize as legal the situation arising from the unlawful presence of the State Israel in the Occupied Palestinian Territory”. This holding was not accompanied by any concretization in either the Advisory Opinion or any of the many declarations and separate opinions attached to it.

14. Oktober 2024

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Limiting ‘Security’ as a Justification in the ICJ’s Advisory Opinion

While international law accepts that States may employ otherwise prohibited actions in exceptional circumstances and within certain constraints, the Advisory Opinion firmly affirms that security cannot justify illegal actions such as annexation or prolonged occupation. The rights of the Palestinian people, including their right to self-determination, cannot be compromised by security claims. The Advisory Opinion serves to limit State practices predicated upon security when those practices violate essential rights and when the security claim is based upon an illegal situation created by the very State which invokes security concerns.

13. Oktober 2024

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The Functional Approach as Lex Lata

The ICJ has de facto adopted the functional approach to occupation with regard to Gaza. The Opinion is thus a critical point in the development of the law of occupation, in that it transcends a binary approach to the question of the existence of occupation, in favour of a more nuanced approach that enables holding that a territory is occupied, but not in an “all or nothing” way. More generally, the Opinion as rejects a more restrictive approach to the question of whether occupation exists in a territory or not in favour of a more flexible approach.

12. Oktober 2024

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The Advisory Opinion on Israel’s Policies and Practices in the Occupied Palestinian Territory

This post analyses the separation between jus ad bellum / in bello as arising from the Advisory Opinion of the ICJ. This separation was challenged by many States appearing before the Court, some of which implied that Israel’s policies and practices, as violations of jus in bello, rendered the occupation unlawful under jus ad bellum. The Court ultimately reaffirmed the separation with a twofold argument, namely qualifying the ‘legality of the occupation’ as a jus ad bellum question, and framing Israel’s policies and practices (prolonged occupation, annexation, and settlement policy) as violations of jus ad bellum.

11. Oktober 2024

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From Illegal Annexation to Illegal Occupation: The Missing Link in the Reasoning of the International Court of Justice

The Court’s determination that Israel’s annexation policies render its continued presence in the West Bank unlawful finds no basis in the international prohibition against the use of force. Moreover, the Court’s determination circumvents the Law of State Responsibility that determines the consequences of Israel’s unlawful annexation policies.

11. Oktober 2024

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A Seismic Change

It is no understatement to say that the 19 July 2024 ICJ Advisory Opinion constitutes a seismic change in the international law and practice on the question of Palestine. In one fell swoop, the ICJ has shifted what was hitherto an almost exclusive focus of the international community on how Israel has administered its 57-year occupation of the Occupied Palestinian Territory under International Humanitarian Law and International Human Rights Law, to the requirement that Israel end its occupation of that territory as “rapidly as possible”.

10. Oktober 2024

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The Legality of the Occupation and the Problem of Double Effect

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?

10. Oktober 2024

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