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Legality of occupation: UN articulates 4-point test

[3 November 2017] - To mark the 50th anniversary of Israel's occupation of Palestinian territory (West Bank, East Jerusalem and Gaza) the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 has articulated an authoritative 4-point test to determine at what point a lawful military occupation becomes unlawful under international law.

Prior to articulating the 4-point test, the Special Rapporteur, Professor Michael Lynk, noted that: "The inability to end the Israeli occupation has been an abject failure of international diplomacy, a darkening stain on the efficacy of international law and the source of multiple broken promises to the Palestinian people. Nor does the prolongation of this occupation serve the people of Israel, for it corrodes their society and their public institutions by entangling them in their government’s drive to foreclose a viable and just solution to the half-century of occupation and the century-long conflict, and makes them the beneficiaries – unwittingly or not – of a profoundly unequal and unjust relationship."
The Special Rapporteur noted that since 1967 the UN Security Council has passed over 40 binding resolutions confirming, inter alia, that the Fourth Geneva Convention (the Convention) applies to the conflict in full and all settlement activity in the West Bank and East Jerusalem is unlawful. Although the Special Rapporteur also noted that Israel's Ministry of Foreign Affairs has rejected the application of the Convention to the West Bank on the basis that there are "competing claims" it is significant that Israel's military authorities in the West Bank take an opposing view and continue to expressly rely on the Convention to justify the prosecution of thousands of Palestinian civilians, including children, in military courts.
The 4 elements of the lawful occupant test articulated by the Special Rapporteur are as follows:
1.  An occupying power cannot annex occupied territory - An occupying power "cannot, under any circumstances, acquire the right to conquer, annex or gain any legal or sovereign title over any part of the territory under its occupation."
This is a fundamental principle of international law (non-acquisition of territory by force) enjoying universal endorsement and enshrined in the UN Charter (Article 2) and confirmed by numerous Security Council resolutions (most recently Res. 2334). This principle applies even if the occupying power was acting in self-defence when it occupied the territory and is the reason why no state has yet moved its embassy to Jerusalem. It is this principle that also prohibits Russia from legally annexing Crimea, and by analogy, China constructing artificial islands on reefs in the South China Sea and claiming sovereignty over the surrounding waters.
Israel is in violation of this principle following its formal annexation of East Jerusalem (1967/1980) and de facto annexation of significant parts of the West Bank. Permitting the influx of 610,000 Israeli settlers into East Jerusalem and the West Bank is, in and of itself, prima facie evidence of annexation.
2.  An occupation must be temporary - An occupation is "inherently a temporary and exceptional situation where the occupying power assumes the role of a de facto administrator of the territory until conditions allow for the return of the territory to the sovereign, which is the people of the territory. Because of the absolute prohibition against the acquisition of territory by force, the occupying power is prohibited from ruling, or attempting to rule, the territory on a permanent or even an indefinite basis."
While no specific time limit has been enshrined in law, the Special Rapporteur noted that the American occupation of Japan, the Allied occupation of West Germany and the American-led occupation of Iraq each lasted less than 10 years.
Israel's occupation of Palestinian territory has now passed 50 years. The Special Rapporteur noted that: "[E]very Israeli government since 1967 has pursued the continuous growth of the settlements, and the significant financial, military and political resources committed to the enterprise belies any intention on its part to make the occupation temporary.
On 28 August 2017, Prime Minister Benjamin Netanyahu confirmed Israel's intentions when he spoke at an event in the West Bank settlement of Barkan commemorating the 50th anniversary of the occupation. During the event, Netanyahu is reported to have said: "We are here to stay, forever. There will be no more uprooting of settlements in the land of Israel. We are guarding Samaria against those who want to uproot us. We will deepen our roots, build, strengthen and settle ... We are doing this for two reasons: the first is simple, this is the land of our forefathers. This is our country." This follows a statement made by the Prime Minister in 2014 when he said: "I have no intention of evacuating any settlement or uprooting any Israeli."
3.  An occupying power must act in the best interests of the occupied population - "The occupying power, throughout the duration of the occupation, is to govern in the best interests of the people under occupation, subject only to the legitimate security requirements of the occupying military authority. This principle has been likened to a trust or fiduciary relationship in domestic or international law, where the dominant authority is required to act in the interests of the protected person or entity above all else. Accordingly, the authority in power is prohibited from administering the trust in a self-serving or avaricious manner. It is also consistent with the strict requirement on the occupying power to observe, to the fullest extent possible, the human rights of the people under occupation."
Accordingly, an occupying power cannot, inter alia, utilise the resources of the occupied territory for its own benefit. It cannot engage in collective punishment or in individual or mass forcible transfers or deportations among other prohibitions. However, over the course of the past 50 years, Israel has utilised the water resources in the West Bank for its own benefit and favoured construction in the settlements while limiting Palestinian development, particularly in Area C and East Jerusalem. Further, according to data released by the Israeli Prison Service, approximately 7,000 Palestinian detainees, including children, are forcibly transferred out of the West Bank to prisons inside Israel each year - a practice prohibited under the Convention (Articles 76, 146 and 147) but which has nevertheless been sanctioned by the Israeli Supreme Court.
4.  An occupation must be administered in good faith - "The principle of good faith is a cornerstone principle of the international legal system, and has become an integral part of virtually all legal relationships in modern international law. It has been described as the “cardinal rule of treaty interpretation”, which dominates and underlies the entire interpretive process. The principle requires a state to carry out its duties and obligations in a honest, loyal, reasonable, diligent and fair manner, and with the aim of fulfilling the purposes of the legal responsibility, including an agreement or treaty. Conversely, the good faith principle prohibits states from participating in acts that would defeat the object and purpose of the obligation, or engaging in any abuse of rights that would mask an illegal act or the evasion of an obligation."
For an occupying power to govern an occupied territory in good faith, it must not only comply with the three principles stated above, but also follow specific directions from the United Nations. Since 1967, the United Nations Security Council has adopted more than 40 resolutions pertaining to Israel’s occupation of Palestinian territory. On the settlements, the Council has stated that they “have no legal validity,” they must be “dismantled,” they constitute a “flagrant violation under international law”, settlement activities must “immediately and completely cease,” and they “are dangerously imperilling the viability of a two-state solution”. Similarly, the Security Council has affirmed, with specific reference to the Israeli occupation, that the acquisition of territory by war or by force is inadmissible.
The Special Rapporteur noted that: "international law is the promise that states make to one another, and to their people, that rights will be respected, protections will be honoured, agreements and obligations will be satisfied, and peace with justice will be pursued." Many of the fundamental principles applicable to the Israeli/Palestinian conflict were enshrined following two world wars in the shared belief that respect for the rule of law is our best protection against repeating the mistakes of the past. By ignoring these principles we dishonour the sacrifices made by previous generations. In this regard it is worth recalling the preamble to the UN Charter, signed on 26 June 1945:
"We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained ..."
The Rapporteur concluded his report by making 5 recommendations including a call to the United Nations General Assembly to consider the advantages of seeking a second advisory opinion from the International Court of Justice on the question of the legality of the occupation.