How does the (il)legality of the Israeli occupation inform and is informed by the doctrine of self-defence?

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International law traditionally regards military occupations as matters of fact – when a territory is “actually placed under the authority of the hostile army”[1] – rather than matters of law. Accordingly, traditional legal doctrine upheld that the normative aspect inherent in the phenomenon of occupation lies in the occupant’s compliance with its obligations as an occupying power, rather than in the legality of the occupation itself.[2] Yet, a recent shift in academic legal writing involves subjecting military occupations to a test of legality.[3]

Numerous scholars have addressed the question of the legality of the Israeli occupation from various perspectives. Some argue that the occupation is illegal under international humanitarian law,[4] while others assert this illegality under international human rights law.[5] Israel’s recent claim of its right to self-defence in response to the Hamas attacks on October 7 provides an opportunity for international lawyers to address the principle of self-defence as a prism through which international law can shed light on the (il)legality of the Israeli occupation. In turn, the occupation (il)legality serves as a framework for evaluating the ad bellum legality of Israel’s military operation in response to Hamas attacks.

The legality of occupation and the prohibition of aggression

There is substantial evidence in international law suggesting that military occupations resulting from the violation of the peremptory norm prohibiting aggression are illegal.[6]

The United Nations (UN) General Assembly Resolution 3314 (XXIX), adopted by consensus on December 14, 1974, states that an occupation resulting from an armed attack in violation of the UN Charter is an act of aggression.[7] The International Court of Justice (ICJ) has affirmed that this resolution holds customary legal significance,[8] and States have largely regarded it as a reflection of international customary law.[9] Resolution 3314 (XXIX) is directly referenced in the 2010 amendments to the Rome Statute of the International Criminal Court (ICC), which states that an act of aggression is “any military occupation, however temporary, resulting from such invasion or attack.”[10] This interpretation, wherein any military occupation stemming from an act of aggression is itself deemed an act of aggression, has received substantial endorsement from UN organs in cases of illegal occupation, particularly in the context of the South African occupation of Namibia.[11]

From then on, can it be asserted that the Israeli occupation is illegal? The answer would require distinguishing the political argument from the legal argument.

The political argument supporting the illegality of the Israeli occupation is primarily found in the resolutions adopted by UN bodies; however, these resolutions have never linked this illegality to the act of aggression. In the years following the 1967 war and the establishment of the Israeli occupation, the General Assembly characterised the occupation as illegal in numerous resolutions,[12] departing from the traditional doctrine that treats occupations as factual phenomena. This stance can be attributed to the broader context of decolonisation and the assertion of the right to self-determination of peoples during this period. Consequently, the term “occupation”, viewed as an infringement of the right of people to self-determination, acquired a highly pejorative connotation.[13] Several General Assembly resolutions have assimilated foreign occupation to colonialism, racism, or aggression.[14] Therefore, it appears that although the General Assembly has qualified the Israeli occupation as illegal, it expressed its position more in political terms – in a context marked by decolonisation – rather than in strictly legal terms.[15] Hence, it seems difficult to establish the illegality of the Israeli occupation based on these resolutions, as the illegality of the latter cannot be a political qualification.

The legal argument consists of determining the illegality of the Israeli occupation through the prism of the act of aggression. If Israel is considered to have been an aggressor State in 1967, then the occupation would be ipso facto illegal. Yet, the Security Council failed to adopt a resolution on aggression. Then, even if one concedes that Israel legitimately invoked the right to self-defence under Article 51 of the UN Charter in 1967 – a much disputed position – the examination of the legality of this use of force cannot be limited to the 1967 war alone. Had the occupation been established under the doctrine of self-defence, Israel is bound to comply with the rules pertaining to self-defence, as the failure to do so indeed classifies the occupation as illegal.

Israel’s “inherent” yet non-absolute right of self-defence

Even if one considers that the occupation has been established by the lawful invocation of Israel’s “inherent right”[16] of self-defence, international law offers ample evidence that the occupation has evolved into an act of aggression. Israel has failed to adhere to the customary principles[17] of necessity and proportionality within the framework of self-defence rules. A necessary use of force in self-defence presupposes that there is no alternative but to use force for the State to defend itself.[18] This necessity also implies that the armed attack must be proportionate to the objective of riposte, meaning that the use of force should amount to the minimum necessary to repel an ongoing armed attack.[19] One could also introduce the principle of immediacy, as implied by the ICJ,[20] which underscore that the right of self-defence must be interpreted strictly within the confines of Article 51 of the UN Charter – i.e., “when an armed attack occurs”,[21] neither before nor after.

The Israeli occupation viewed here as originally part of a military operation aimed at repelling Egyptian, Jordanian, and Syrian attacks, must be justified in law throughout the entire duration of the occupation. Indeed, international law considers the legality of the use of force in self-defence “as a whole.”[22] Christopher Greenwood notes:

it is not enough for a State to show that its initial recourse to force was a justifiable act of self-defence [...] It must also show that all its measures involving the use of force [...] are reasonable, proportionate acts of self-defence. Once its response ceases to be reasonably proportionate then it is itself guilty of a violation of the [j]us ad bellum.[23]

Therefore, the Israeli occupation is subject to the rules of self-defence throughout its entire duration. Arguing that Israel has evolved into an aggressor in occupying the Arab territories presupposes that the effective control it maintains over the occupied territories is no longer justifiable in terms of the objective of repelling Egyptian, Jordanian, and Syrian attacks. Regarding attacks emanating from the Palestinian territory, the ICJ clearly stated in 2004 that the right to self-defence cannot be invoked by the occupying State if the threat emanates from the occupied territory.[24] Furthermore, despite Israel’s 2005 withdrawal of settlers and on-the-ground personnel from the Gaza strip, the latter is still considered an occupied territory by various UN organs[25] and the ICC,[26] among others.[27] Therefore, it seems difficult to justify the occupation of Palestinian territories in legal terms. The fifty-six-year-old occupation,[28] alongside the de facto and de jure annexation of the Arab territories,[29] do not align with the rules of self-defence.[30]

Consequently, even if one considers that the occupation was legal ab initio, the occupant became an aggressor in the long term. Indeed, a State failing to comply with the rules of self-defence turns the armed attack into an illegal use of force. When the use of force leads to the permanent occupation or de facto annexation of a foreign territory, it crosses the threshold characterising such an armed attack as an act of aggression, as it jeopardises the safety of the population and territorial integrity of the occupied sovereign.[31] This argument supports the assertion that the Israeli occupation is illegal, regardless of the legality of its use of force in 1967.

Israel’s use of force against Hamas: How to qualify the response under jus ad bellum?

In a letter addressed to the UN Secretary-General and the Security Council a few days after the attack on October 7, Israel claimed its right of self-defence.[32] Interpreted broadly, it seems evident that Israel has the right, and even the duty, to protect its citizens on its own territory in accordance with international law, as reiterated by the ICJ.[33] Interpreted in a legal sense, the right to self-defence is strictly defined. The United States supported the notion that Israel had the right to invoke self-defence under Article 51 of the UN Charter,[34] in line with Security Council Resolution 1368 dating back to 2001, which invoked the same article in response to the September 11 terrorist attacks.[35] Jordan, on the other hand, reminded that the right to self-defence provided by the Charter cannot be invoked by Israel, as unlike the 2001 attacks against the United States, the attacks by Hamas originate from a territory effectively controlled by Israel.[36] Jordan bases this argument on the advisory opinion of the ICJ in 2004.[37]

Yet, much has changed since the issuance of the advisory opinion in 2004. Notably, Palestine has attained the status of a non-member observer State in the UN, potentially altering the landscape concerning the use of force against an occupied sovereign. Article 51, intended to govern States’ use of force, could thus be applicable in this context, contingent upon the ability to discern between the actions of Hamas and those of the Palestinian State. Indeed, demonstrating that the attacks on October 7 are attributable to the State of Palestine would allow for the argument that Israel has the right to self-defence against a foreign State’s aggression.

According to the definition of aggression outlined in General Assembly Resolution 3314 (XXIX), the attacks on October 7 could potentially be qualified as an act aggression by the State of Palestine if Hamas, acting as a non-state armed actor, meets the conditions specified in Article 3(g). The latter states that the act of aggression consists of

The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the act [of aggression], or its substantial involvement therein.[38]

In line with the ICJ’s reasoning in the Nicaragua case,[39] the classification of a group as a de facto organ of a State or acting on behalf of a State requires a relationship characterised by complete control and dependence.[40] This entails the State exerting comprehensive control over the group, encompassing the planning and coordination of the group’s military activities.

Since 2007, the internationally recognised Palestinian government is the Palestinian Authority based in Ramallah, not Hamas. The primary obstacle to qualifying the October 7th attacks as an act of aggression is the refusal of the United States, Israel, and the Palestinian Authority to acknowledge Hamas’s victory in the 2006 legislative elections, and consequently, recognising Hamas as the legitimate authority representing the Palestinian State. Today, Hamas and the Palestinian Authority are two distinctly separate entities, and it is evident that the State of Palestine did not dispatch Hamas as irregular forces nor substantially participate in the attack on October 7.

Therefore, the Hamas attacks cannot be qualified as an act of aggression because they are not attributable to the State of Palestine. Article 51 of the Charter, which regulates the use of force between States, may not find application in this context. This argument is further substantiated by the overarching illegality of the Israeli occupation.

The inadmissibility of self-defence against self-defence?

The illegality ad bellum of the Israeli occupation further informs the Israeli claim of self-defence against Hamas following the October 7 attack, widely regarded by the majority of States as reflecting Israel’s “inherent right to self-defence”.[41] Two primary premises must be acknowledged: Firstly, the right of the Palestinian people to self-determination has been widely recognised internationally, particularly by the UN General Assembly.[42] Secondly, any military occupation, although it interferes with the right to self-determination, is not a violation of this right per se.[43] Yet, the Israeli occupation, understood here as an act of aggression, necessarily and inherently violates the right to self-determination.[44] This stems from the principle of international law that the use of force to prevent the exercise of self-determination by peoples is illegal.[45]

A relevant precedent is found in the 1973 General Assembly Resolution 3061 (XXVIII), which condemned the “illegal occupation” of Guinea-Bissau by Portugal. The resolution recognised the occupied people’s right “to expel the forces of aggression of Portuguese colonialism from that part of the territory of Guinea-Bissau which they still occupy.”[46] Additionally, a few years later, Additional Protocol I to the Geneva Conventions elevated the status of “armed conflicts in which peoples are fighting against […] alien occupation [...] in the exercise of their right of self-determination” to the rank of international armed conflict.[47] In this understanding, in cases of occupation amounting to aggression, the right to self-determination has precedent over the prohibition on the use of force. Therefore, armed resistance by the occupied population against the illegal occupant is lawful under international law.

Israel is a wrongdoing State in that it is responsible for an act of aggression by occupying the Palestinian territories. In this respect, the attacks carried out by Hamas on October 7 are not isolated and decontextualised events but were mainly defensive actions against the Israeli aggressor. While Hamas’ operations appear to have unquestionably violated jus in bello, they are still lawful defensive measures of an occupied people against the aggressing occupant. Therefore, the latter is not entitled to the right of self-defence. By virtue of the principle ex injuria jus non oritur, asserting that a right cannot arise from an illegal act, Israel cannot legitimately claim self-defence against actions taken in self-defence – in the broad sense.

In a context of military occupation, Israel has the right and duty to protect its citizens on its territory. However, this protection cannot be understood under the provisions of Article 51 of the Charter. Instead, Israeli protective measures could encompass intercepting Hamas rockets using the Iron Dome, implementing increased control over borders with the Gaza Strip, and potentially ending the occupation while recognising the State of Palestine. There are numerous possible alternatives measures beyond imposing living conditions on the Palestinians of Gaza that could potentially constitute a genocidal act.[48]

Conclusion

On 30th December 2022, the UN General Assembly adopted Resolution 77/247, requesting the ICJ to provide an advisory opinion on the manner in which “policies and practices of Israel [...] affect the legal status of the occupation”.[49] This request directly questions the legality of the occupation. There is ample reason to believe that, unlike the 2004 Advisory Opinion, the ICJ will primarily adjudicate on questions of jus ad bellum, with due consideration given to the current events. Regarding the ICC, it appears highly improbable that the UN Security Council      would refer the crime of aggression to the Court to bypass the restriction outlined in Article 15bis(5) of the Rome Statute.[50] It is therefore incumbent upon the ICJ to ascertain whether the occupation has been illegal ab initio or otherwise tainted with illegality over the years. While this illegality reinforces the argument negating Israel’s right of self-defence, this, of course, remains distinct from the obligation for all belligerents to adhere to international humanitarian law and international human rights law, which must be recalled as a priority for the time being.[51]

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[1] Emphasis added. International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, Article 42. A Belgian international law dictionary defines military occupation as the “[p]résence de fait des forces militaires d’un État sur le territoire d’un autre État [emphasis added]”. Salmon, J. (2001) Dictionnaire de Droit International Public. Bruxelles: Bruylant (Universités francophones), p. 775.

[2] Dinstein, Y. (1978) The International Law of Belligerent Occupation and Human Rights. Israel Yearbook on Human Rights, 8, p. 104.

[3] See Roberts, A. (1990) Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967. The American Journal of International Law, 84(1), pp. 44-103; Falk, R.A., & Weston, B.H. (1991) The relevance of international law to Palestinian rights in the West Bank and Gaza: in legal defense of the Intifada. Harvard International Law Journal, 32(1), pp. 129-157; Ben-Naftali, O., Gross, A.M., & Michaeli, K. (2005) Illegal Occupation: Framing the Occupied Palestinian Territory. Berkeley Journal of International Law, 23, pp. 551-614; Milano, E. (2006) Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy. Boston: Brill; Ronen, Y. (2008) Illegal Occupation and Its Consequences. Israel Law Review, 41(1-2), pp. 201-245; Zemach, A. (2015) Can occupation resulting from a war of self-defence become illegal? Minnesota Journal of International Law, 24(2), pp. 313-350; Azarova, V. (2018) An Illegal Territorial Regime? On the Occupation and Annexation of Crimea as a Matter of International Law, in Sayapin, S. & Tsybulenko, E. The Use of Force against Ukraine and International Law. The Hague: T.M.C. Asser Press, pp. 41-71; and Imseis, A. (2020) Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine, 1967–2020. European Journal of International Law, 31(3), pp. 1055-1085.

[4] See Ben-Naftali, Gross & Michaeli, Illegal Occupation: Framing the Occupied Palestinian Territory, loc. cit. supra note 3; and Falk & Weston, The relevance of international law to Palestinian rights in the West Bank and Gaza: in legal defense of the Intifada, loc. cit., supra note 3.

[5] See Azarova, An Illegal Territorial Regime? On the Occupation and Annexation of Crimea as a Matter of International Law, loc. cit. supra note 3; Ronen, Illegal Occupation and Its Consequences, loc. cit. supra note 3; and Imseis, Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine, 1967–2020, loc. cit. supra note 3.

[6] Zemach, Can occupation resulting from a war of self-defence become illegal?, loc. cit. supra note 3, p. 314 & p. 345.

[7] General Assembly Resolution 3314 (XXIX) Article 3(a), UN GAOR, 29th Sess., Suppl. No. 31, UN Doc. A/9631 (Dec. 14, 1974).

[8] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 103, §195; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 264, §102; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment 19 December 2005, ICJ Reports 2005, pp. 222-223, §146.

[9] General Assembly Official Records, Twenty-ninth Session: Report of the Special Committee on the Question of Defining Aggression, 11 March-12 April 1974, Supp. No. 18, UN Doc. A/9619. See Italy, p. 14; Madagascar, p. 14; Ecuador, p; 15; Japan, p. 15; Romania, p. 17; Spain, p. 18; Indonesia, p. 19; Syrian Arab Republic, p. 19; Cyprus, p. 20; France, p. 21; United States of America, pp. 22-23; Columbia, p. 26; Bulgaria, p. 28; Turkey, p. 30; and United Kingdom, p. 31.

[10] Rome Statute of the International Criminal Court, Article 8bis(2)(a). See also Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, General Assembly Resolution 2625 (XXV), §1, UN GAOR, 25th Sess. No. 28, UN Doc. A/8028 (Oct. 24, 1970); Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, General Assembly Resolution 42/22, §10, UN GAOR, 42nd Sess., Suppl. No. 49, UN Doc. A/RES/42/22 (Nov. 18, 1987).

[11] General Assembly Resolution 41/39A, §7, UN GAOR, 41st Sess., Suppl. No. 53, UN Doc. A/RES/41/39A (Nov. 20, 1986); General Assembly Resolution 43/26A, §4, UN Doc. A/RES/43/26A (Nov. 17, 1988). See also Security Council Resolution 301, §6(1), UN Doc. S/RES/301 (Oct. 20, 1971); General Assembly Resolution 2871(XXVI), §3, UN Doc. A/RES/2871 (Dec. 20, 1971); Security Council Resolution 366, §1, UN Doc. S/RES/366 (Dec. 17,1974); Security Council Resolution 385, §1, UN Doc. S/RES/385 (Jan. 30, 1976).

[12] General Assembly resolution 32/20, preamble, UN GAOR, 32nd Sess., Suppl. No. 45, UN Doc. A/RES/32/20 (Nov. 25, 1977); General Assembly resolution 33/29, preamble, UN Doc. A/RES/33/29 (Dec. 7, 1978); General Assembly resolution 34/70, preamble, UN Doc. A/RES/34/70 (Dec. 6, 1979); General Assembly resolution 35/122E, preamble, UN Doc. A/RES/35/122E (Dec. 11, 1980); General Assembly resolution 35/207, preamble, UN GAOR, 35th Sess., Suppl. No. 48, UN Doc. A/35/207, (Dec. 16, 1980); General Assembly resolution 36/147E, preamble, UN Doc. A/36/147E (Dec. 16, 1981).

[13] Benvenisti, E. (2012) The International Law of Occupation. Oxford University Press, 2nd ed, p. 54; Ronen, Illegal Occupation and Its Consequences, loc. cit. supra note 3, p. 242; Cassese, A. (1998) Self-Determination of Peoples: A Legal Reappraisal. Cambridge University Press, p. 99.

[14] See General Assembly Resolution 3171(XXVIII), §2, UN GAOR, 28th Sess., UN Doc. A/9400 (Dec. 17, 1973): “The General Assembly, [...] Supports resolutely the efforts of the developing countries and of the peoples of the territories under colonial and racial domination and foreign occupation [emphasis added]”; The Charter of Economic Rights and Duties of States, General Assembly Resolution 3281(XXIX), Article 16(1) of annex, UN GAOR, 29th Sess., Suppl. No. 31, A/9631 (Dec. 12, 1974), declares that each State has the duty to “eliminate colonialism, apartheid, racial discrimination, neo-colonialism, and all forms of foreign aggression, occupation, and domination [emphasis added]”; General Assembly Resolution 3314 (XXIX), preamble, supra note 7; Universal realization of the right of peoples to self-determination, General Assembly Resolution 72/159, preamble, UN GAOR, 72nd Sess., Suppl. No. 49, UN Doc. A/RES/72/159 (Dec. 19, 2017); General Assembly Resolution 77/229, § 17, UN GAOR, 77th Sess., Suppl. No. 49, UN Doc. A/RES/77/229 (Dec. 15, 2022); General Assembly Resolution 77/207, § 2, UN GAOR, 77th Sess., Suppl. No. 49, UN Doc. A/RES/77/207 (Dec. 15, 2022). See also Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts, Article 1(4), June 8, 1977, 1125 U.N.T.S. 3, which associates “alien occupation” with “colonial domination [and] racist regimes.

[15] Benvenisti, The International Law of Occupation, op. cit. supra note 13, p. 54.

[16] United Nations, Charter of the United Nations, 24 October 1945, UNTS 1, XVI, Article 51.

[17] Yearbook of the International Law Commission, 1980, Vol I (1), UN Doc. A/CN.4/SER.A/1980, p. 188, §25; Yearbook of the International Law Commission, 1980, Vol II (1), UN Doc. A/CN.4/SER.A/1980/Add. 1 (Part 1), p. 69, §121; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), p. 94, §176; Legality of the Threat or Use of Nuclear Weapons, p. 245, §41.

[18] Draft articles on responsibility of States for Internationally Wrongful Act, Article 25(1)(a). A necessary use of force encompasses the idea that force is “the only way for the State to safeguard an essential interest against a grave and imminent peril.” Yearbook of the International Law Commission, 1980, Vol I (1),, pp. 187-188, §24.

[19] Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, ICJ Reports 2003, p. 198, §77; pp. 196-197, §74.

[20] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), p. 123, §237.

[21] Charter of the United Nations, Article 51.

[22] Corten, O. (2010) The Law Against War: The Prohibition on the Use of Force in Contemporary International Law. Oxford Portland, Oregon: Hart Publishing (French studies in international law), p. 492.

[23] Greenwood, C. (1983) The Relationship between ius ad bellum and ius in bello. Review of International Studies, 9(4), pp. 221-234, p. 223.

[24] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, p. 194, §139.

[25] Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, UN Doc. A/78/198 (Sep. 5, 2023); General Assembly Resolution 76/216, UN Doc. A/RES/76/126 (Dec. 17, 2021); UNHCR, Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967.

[26] International Criminal Court, Pre-Trial Chamber I Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, ICC-01/18-143 (Feb. 5, 2021), p. 12, §22.

[27] African Union; European Union; Amnesty International; Human Rights Watch; International Federation for Human Rights.

[28] Meir Shamgar, former president of the Israeli Supreme Court, stated that “[a]ccording to International Law the exercise of the right of military administration over a territory and its inhabitants had no time-limit, because it reflected a factual situation and pending an alternative political or military solution this system of government could, from the legal point of view, continue indefinitely”. Shamgar, M. (1982) Military Government in the Territories Administered by Israel, 1967-1980: The Legal Aspects. Harry Sacher Institute for Legislature Research and Comparative Law, p. 43.

[29] Basic Law: Jerusalem, Capital of Israel 5740-1980 (Jul. 30, 1980); Knesset Basic Law: Golan Heights Law (Dec. 14, 1981); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 184, §121.

[30] In the written statement submitted by South Africa as part of the Wall Advisory Opinion, the South African government stresses that prolonged occupation ceases to satisfy the requirements of proportionality and necessity for the use of force in self-defence, citing the work of Christine Gray: “[n]ecessity and proportionality are also crucial in the rejection by states of prolonged occupation of territory in the name of self-defence[.]” (Gray, C.D. (2000) International Law and the Use of Force. Oxford: University Press (Foundations of public international law), p. 108); Wall Advisory Opinion, Written Statement Submitted by the Government of the Republic of South Africa (30 January 2004), p. 15, §37. Regarding the Armed Activities case, the government of the Democratic Republic of Congo noted that “[l]a durée de l’occupation du territoire congolais montre en tout état de cause que les moyens utilisés par l’Ouganda sont disproportionnés.” Written Proceedings, Reply of the Democratic Republic of the Congo, (29 May 2002), p. 240, §3.172. Finally, during the ICJ oral proceedings in the case Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, the State of Palestine noted that “[a] permanent occupation [...] is manifestly and gravely unlawful; it is an ongoing international wrong that must be brought to an immediate end.” Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Verbatim record (19 February 2024), p. 75, §42.

[31] Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, commentary to Article 40, p. 113, §8; Pancracio, J.-P. (2011) Un mutant juridique: l’agression internationale. IRSEM, Institut de recherche stratégique de l’École militaire, p. 23.

[32] Identical letters dated 7 October 2023 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General and the President of the Security Council, 9 October 2023, UN Doc. S/2023/742.

[33] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, p. 195, §141.

[34] Security Council, 9442nd meeting, 18 October 2023, The situation in the Middle East, including the Palestinian question, UN Doc. S/PV.9442, p. 5.

[35] Security Council Resolution 1368, UN Doc. S/RES/1368 (Sep. 9, 2001).

[36] Security Council, 9439th meeting, 16 October 2023, The situation in the Middle East, including the Palestinian question, UN Doc. S/PV.9439, p. 12.

[37] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, p. 195, §141.

[38] General Assembly Resolution 3314 (XXIX), Article 3(g), supra note 7.

[39] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), p. 62, §109.

[40] Álvarez Ortega, E.-L. (2015) The Attribution of International Responsibility to a State for Conduct of Private Individuals within the Territory of Another State. InDret, Revista para el Análisis del Derecho, 1, p. 10.

[41] See UN Security Council Meeting on Mideast Situation/Palestinian Question on 16 October 2023 – Verbatim Record, UN Doc. S/PV.9439. United States, p.3; United Kingdom, p. 4; Malta, p. 5; France, p. 8; and Albania, p. 8.

[42] General Assembly Resolution 49/149, UN Doc. A/RES/49/149 (Dec. 12, 1994); General Assembly Resolution 50/140, UN Doc. A/RES/50/140 (Jan. 30, 1996); General Assembly Resolution 51/82, UN Doc. A/RES/51/82 (Feb. 26, 1997); General Assembly Resolution 52/114, UN Doc. A/RES/52/114 (Dec. 12, 1997); General Assembly Resolution 53/136, UN Doc. A/RES/53/136 (Mar. 1, 1999); General Assembly Resolution 54/152, UN Doc. A/RES/54/152 (Feb. 29, 2000); General Assembly Resolution 55/87, UN Doc. A/RES/55/87 (Dec. 4, 2000); General Assembly Resolution 56/142, UN Doc. A/RES/56/142 (Feb. 11, 2002); General Assembly Resolution 57/198, UN Doc. A/RES/57/198 (Dec. 18, 2002); General Assembly Resolution 58/163, UN Doc. A/RES/58/163 (Mar. 4, 2004); General Assembly Resolution 59/179, UN Doc. A/RES/59/179 (Jul. 23, 2004); General Assembly Resolution 60/146, UN Doc. A/RES/60/146 (Feb. 14, 2006); General Assembly Resolution 61/152, UN Doc. A/RES/61/152 (Feb. 14, 2007); General Assembly Resolution 62/146, UN Doc. A/RES/62/146 (Mar. 4, 2008); General Assembly Resolution 63/165, UN Doc. A/RES/63/165 (Feb. 19, 2009); General Assembly Resolution 65/202, UN Doc. A/RES/65/202 (Mar. 11, 2011); General Assembly Resolution 66/146, UN Doc. A/RES/66/146 (Mar. 29, 2012); General Assembly Resolution 67/158, UN Doc. A/RES/67/158 (Feb. 26, 2013); General Assembly Resolution 68/154, UN Doc. A/RES/68/154 (Dec. 18, 2013); General Assembly Resolution 69/165, UN Doc. A/RES/69/165 (Dec. 18, 2014); General Assembly Resolution 70/141, UN Doc. A/RES/70/141 (Feb. 5, 2016); General Assembly Resolution 71/184, UN Doc. A/RES/71/184 (Feb. 1, 2017); General Assembly Resolution 72/160, UN Doc. A/RES/72/160 (Jan. 23, 2018); General Assembly Resolution 73/158, UN Doc. A/RES/73/158 (Jan. 9, 2019); General Assembly Resolution 74/139, UN Doc. A/RES/74/139 (Jan. 21, 2020); General Assembly Resolution 75/172, UN Doc. A/RES/75/172 (Dec. 28, 2020); General Assembly Resolution 76/150, UN Doc. A/RES/76/150 (Jan. 5, 2022); General Assembly Resolution 77/208, UN Doc. A/RES/77/208 (Dec. 28, 2022).

[43] Just as belligerent occupation does not inherently violate the sovereignty of the ousted power. See Benvenisti, The International Law of Occupation, op. cit. supra note 13, p. 54; Cassese, Self-Determination of Peoples: A Legal Reappraisal, op. cit. supra note 13, p. 99.

[44] Ibid.; Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, commentary to Draft Article 41, p. 114, §5.

[45] Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, §1.

[46] General Assembly Resolution 3061(XXVIII), §§1-2, UN GAOR, 28th Sess., Suppl. No. 30, UN Doc. A/RES/3061(XXVIII) (Nov. 2, 1973). See also Namibia Advisory Opinion, Separate Opinion of Vice-President Ammoun, p. 90, §12. See also Security Council Resolution 269, §4, UN Doc S/RES/269 (Dec. 8, 1969) recognising “the legitimacy of the struggle of the people of Namibia against the illegal presence of the South African authorities in their Territory”; Security Council Resolution 577, §5, UN Doc. S/RES/577 (Dec. 6, 1985) commending “the People’s Republic of Angola for its steadfast support for the people of Namibia in their just and legitimate struggle against the illegal occupation”.

[47] Protocol Additional to the Geneva Conventions, Article 1(4).

[48] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ Order of 26 January 2024.

[49] General Assembly Resolution 77/247, §18(b), UN GAOR, 77th Sess., Suppl. No. 49, UN Doc. A/RES/77/247 (Dec. 30, 2022).

[50] Rome Statute of the International Criminal Court, Article 15bis(5). This Article states that the Court can only adjudicate the crime of aggression if the perpetrator is a national of a State Party, which is not the case for Israel.

[51] Haque, A. A. (2023) Enough: Self-Defense and Proportionality in the Israel-Hamas Conflict. Just Security.