Everyone with something to say about Palestine and its future, from activists and pressure groups to MPs and government minsters, and especially the media, should at least do their homework on the several interlocking laws relating to the situation.
They include international law, the laws of war, law of armed conflict, international humanitarian law, occupation law, maritime law, international human rights law, the prohibition of racial discrimination and, of course, the prohibition of apartheid. It’s a tall order but, thankfully, Dr Ralph Wilde, an international law expert and associate professor at University College London (UCL), has pulled together the various strands in a legal opinion entitled “Is the Israeli occupation of the Palestinian West Bank (including East Jerusalem) and Gaza ‘legal’ or ‘illegal’ in international law?“
He concludes that there is no valid basis in international law for the occupation and it is an unlawful use of force, an aggression, and a violation on the part of Israel against the Palestinian people’s right to self-determination, And, in the case of aggression, it’s a crime on an individual level for senior Israeli leaders. “As a result, the occupation is existentially illegal and must end immediately.”
What’s more, an end to the occupation cannot be delayed by Israel failing to agree or by the adoption of a peace agreement or by the unreadiness of the Palestinian people, or by ‘facts on the ground’, or by waiting the approval of the UN, the Quartet, the White House, the British Foreign Office or anybody else. Every day the occupation continues is a breach of international law.
Palestinian people are treated in international law as a collective entity with rights, notably the right of self-determination and the right to freely choose whether or not to enter into international agreements, says Wilde. Palestine is what’s called a Self-determination Unit. The territory it covers is everything that is ‘not Israel’, legally, and includes Al-Quds/Jerusalem in its entirety, the rest of the West Bank beyond East Jerusalem, and Gaza. Israel’s recognition and UN membership did not include sovereignty over any part of Al-Quds/Jerusalem. Palestinians also enjoy the right of external self-determination (i.e. freedom from external domination) which, according to Wilde, has been universally accepted and affirmed by states and UN institutions including the General Assembly, the Security Council, and the International Court of Justice.
And Palestine is a state in the international law sense for these reasons:
- There’s a presumption in favour of statehood for people with a right of external self-determination, and
- A large majority (138) of the world’s states collectively recognised Palestinian statehood when the UN General Assembly voted in 2012 to re-designate Palestine’s status from ‘non-member Entity’ to ‘non-member State’. This had the effect of establishing statehood.
Self-determination and self-governance
External self-determination is a right to be free of any external domination, including occupation or other forms of non-sovereign territorial control which prevent the full de facto exercise of that right. Such domination must end so that this right can be exercised.
It operates and exists simply and exclusively by virtue of the Palestinian people being entitled to it. It is not something that depends on anyone else agreeing to it, whether Israel, the Quartet, the UN, other states etc. It is a right. Something which depends on the agreement or permission of someone else is not a right, so there is no need for Palestinians to negotiate or compromise with Israelis as the price for ending their occupation.
Israel’s exercising control over the West Bank (including East Jerusalem) and Gaza, preventing the Palestinian people from full and effective self-governance, has for decades been a fundamental impediment to the realization of the right of self-determination enjoyed by the Palestinian people in international law. And there has been no actual or imminent armed attack that justifies the occupation as a means of self-defence.
Furthermore there is no right under international law to maintain the occupation pending a peace agreement, or for creating ‘facts on the ground’ that might give Israel advantages in relation to such an agreement, or as a means of coercing the Palestinian people into agreeing a situation they would not accept otherwise, says Wilde.
The occupation and ‘use of force’
The Israeli occupation of the Palestinian West Bank and Gaza is a military occupation. As such it is a ‘use of force’. In international law ‘use of force’ is a euphemism for war, including the conduct of military occupation. In international law Israel is not and cannot be sovereign over any part of the West Bank or Gaza, including East Jerusalem, merely by asserting a claim to this effect based on the exercise of effective control enabled through the use of force and in the absence of consent to such annexation freely given by the Palestinian people.
Although Israel removed its ‘boots on the ground’ from Gaza in 2005, the military occupation of that territory persists in new form: an overall siege (in partnership with Egypt) controlling entry and exit of any and all people, goods and materials, including food and medical supplies, the exclusive control of airspace and maritime territory, control of the water and electricity supply, denial of access to Palestine’s maritime gasfield and the ability to re-introduce boots on the ground from its own territory whenever it likes. This constitutes an ongoing use of force exercised by Israel which is periodically supplemented by other forms of force such as military incursions, firing missiles, targeted assassinations, ‘mowing the grass’ and other degradation efforts.
The only legal grounds for a state being entitled to control territory that does not form part of its own sovereign territory, and which is either the territory of another state, or a non-state self-determination unit (as here) is if (a) the host sovereign entity has validly given permission; (b) the UN Security Council has given its authority under Chapter VII of the UN Charter; (c) it is a legally-valid exercise of self-defence according to the international law on the use of force.
The ‘self defence’ excuse
“The doctrine of preventative self-defence, justifying the occupation as a means of stopping a threat from emerging, has no basis in international law. Neither United Nations Security Council Resolution 242, nor the so-called Oslo Accords, provide an alternative legal basis for the existence/continuation of the occupation. Indeed, the Oslo Accords themselves violate international law because ‘consent’ to them by the PLO was coerced through the illegal use of force.
The use of force in self-defence is only legally permitted, according to international law, if there is an actual or imminent threat of an armed attack, and the use of force (in this case a military occupation) is necessary and proportionate to that attack or imminent threat.
But the ongoing military control exercised by Israel over the West Bank and Gaza, if understood in defensive terms, is not about responding to actual or imminent attacks. Rather, it is pre-emptive or preventative self-defence: using force to stop a threat from emerging at all. Alternatively it can be seen as a way of preventing the establishment of another fully-functioning Palestinian state on Israel’s borders.
As for the settlements and settlers/squatters, “the use of force to protect them, even from actual or imminent attacks, is legally-invalid, bearing in mind the extra-territorial nature of the settlements. There is no legal right to use force in self-defence to protect a state’s nationals outside its territory.
‘Trusteeship over people’
“According to this concept, people were, ostensibly, potentially to be granted their freedom by colonial authorities if and when they were deemed ‘ready’ by those authorities,” says Wilde. “The anti-colonial self-determination rule, which was the international legal basis for recognizing de-colonization, scrapped this approach in favour of an automatic right… Inadequacy of preparedness should never serve as a pretext for denying independence. And the right operates regardless of whether the authority depriving the people of their ability to exercise self-rule agrees to relinquish control. Necessarily, then, this form of ‘freedom’ – the end of external control – is to be realized immediately and automatically, without preconditions.”
So UK government please note. Your repeated refusal to recognise Palestinian statehood until you deem the time is right (whatever that means) is invalid.
As Wilde points out, Israel’s recognition and UN membership did not include sovereignty over any part of Al-Quds/Jerusalem so “the only lawful basis on which Israel could annex East Jerusalem would be if this had been agreed to by the Palestinian people and approved by the United Nations. Such agreement and approval has not been forthcoming. East Jerusalem is not ‘annexed’. It is not part of the sovereign territory of Israel. It is under the sovereignty of the Self-determination Unit Palestine and the State of Palestine.” It might be regarded as ‘purportedly annexed’, i.e. subject to an attempt at annexation which has no legal effect.
And this attempt by Israel to assert sovereignty is a violation of its legal obligations to respect the right of self-determination of the Palestinian people and the sovereignty of the State of Palestine. Because it has been enabled and is maintained through the use of military force, and according to the law on the use of force the annexation of territory is not a legally valid basis for using military force, Israel’s use of force in order to annex East Jerusalem is a violation of the international law on the use of force.
An end to these violations involves Israel immediately withdrawing its claim to sovereignty over East Jerusalem and immediately ending its control, including its use of military force.
‘De facto’ annexation
“This is Israel acting as if it were the sovereign but not formally claiming sovereignty, establishing ‘facts on the ground’ through control and implanting settlers that could then pave the way for the eventual enjoyment of de jure sovereignty over the land in question.”
Implanting settlers in the hope of eventually acquiring territory is a violation of occupation law by Israel and a War Crime on the part of the individuals involved. And it is a violation of Israel’s legal obligation to respect the sovereignty of another state and a violation of Israel’s legal obligation to respect the right of self-determination of the Palestinian people; also a violation of Israel’s obligations in the international law on the use of force. Ending these violations involves immediate removal of the settlers and the settlements from occupied land and an immediate end to Israel’s exercise of control, including its use of military force, over those areas of the West Bank.
Freedom of movement
“As Israel has no legal entitlement to exercise authority over these territories in the first place, necessarily, it has no legal entitlement to be making decisions about movement, entry and exit of people and goods (including aid) at all. All such decisions violate international law, since they are part and parcel of Israel’s exercise of authority over these territories which is a violation of the law on the use of force and the law of self-determination.
“Put differently, Israel’s imposition of restrictions on freedom of movement of people and goods (including aid) within, and entry and exit from, the West Bank (including East Jerusalem) and Gaza is illegal not just because Israel is not the territorial sovereign authority in these areas. It is also illegal because Israel lacks a legal entitlement to exercise authority in those areas on a non-sovereign basis.”
So Israel has no international legal capacity to prevent anyone, or any goods (including aid), from entering, leaving or moving within and between the West Bank (including East Jerusalem) and Gaza, for whatever reason.
Wilde finishes by urging everyone involved – states, international organizations generally, the UN and its various committees and institutions, and human rights NGOs etc concerned about how military occupation can possibly be compatible with international law generally and international human rights law in particular – to end the standstill and move forward to “address the question of the existence of the occupation, in and of itself, as a violation of the international law of self-determination and international law on the use of force.
“And face up to the significance of a negative answer to this question, which is that international law requires that the occupation end immediately.”
Wilde’s opinion is 77 pages long but well worth the effort. I have summarised it according to how it strikes me. My view of the law is that it’s common sense and logical. If it sounds right, it usually is right, and the professor’s interpretation of the complex legal position sounds right enough.
This piece of work should be of great help to all those engaged in the war of words and deeds with Israel’s pimps and the Zionist freaks who adore the apartheid regime and are embedded in the fabric of Parliament and our public institutions including education.
The next question is why the guardians of international law have allowed our rules-based order, which we worked so hard and suffered so greatly to achieve, to be reduced to a cesspit of lawlessness… and not only in the Holy Land.
The video clip shows Irish MP Richard Boyd Barrett criticising the EU for not starting investigations into Israeli war crimes. If a British MP were to berate the government for rewarding Israel’s crimes instead of slapping the apartheid state with sanctions, he/she would be howled down as an anti-Semite and told by party leaders to apologise – such is the absurd degree to which we’ve allowed ourselves to be dominated by the Israel lobby and the Zionist inquisition.
Are Western leaders really too corrupted or cowardly to do what’s necessary? Are they just too gormless to care?
Or are they all part of the criminal conspiracy to steal Palestine? It certainly seems like it.
Mohamed El-Doufani explains why we must not lose sight of one legacy of British imperialism, Israel, its persecution and oppression of the Palestinian people, its vast nuclear and chemical weapons arsenal, and its disregard for international law and international institutions. Dr Mohamed Doufani is an editor, writer, analyst and commentator…23rd November 2022