In the previous few years, regardless of such prohibition, Israeli officers have introduced their plans and intention to annex the occupied Palestinian territory (oPt) in entire or half. In a latest assertion, on 11 November 2024, Israel’s Finance Minister Smotrich introduced a plan to impose Israel’s sovereignty to and annex the occupied West Financial institution in 2025. He additionally confirmed that the groundwork is already being put into place (see right here and right here). His plans additionally embody annexation of the Gaza Strip, the place the Israeli regime is conducting mass forcible switch of Palestinians and constructing navy bases (see right here and right here). The announcement of the US President to forcibly switch Gaza’s inhabitants of over two million to Jordan and Egypt and take over the Strip, which was embraced by the Israeli far-right authorities (see right here and right here), emboldens Israel’s long-visioned plan to freely annex the occupied Palestinian territory. It has, in truth, inspired additional Israeli settlements growth and land confiscation within the West Financial institution (see right here and right here).
This involves no shock because the Israeli authorities, led by Natanyahu, has lengthy been in help of annexation and confiscation of Palestinian land in favour of unlawful settlements (see right here). On the factual stage, Israel has been i) sustaining and increasing unlawful settlements and outposts and their related infrastructure, ii) expropriating Palestinian land and exploiting its pure sources, iii) proclaiming Jerusalem as its capital, iv) sustaining a restrictive and discriminatory planning and constructing regime for Palestinians, and v) making use of in depth Israeli home legislation to East Jerusalem and lengthening Israeli legislation extraterritorially to Israeli settlers within the West Financial institution.
Territorial annexation by pressure, whether or not takes the type of de facto or de jure, is illegal. In its 2024 Advisory Opinion on Authorized Penalties arising from the Insurance policies and Practices of Israel within the Occupied Palestinian Territory (oPt), together with East Jerusalem, the ICJ affirmed that each de facto annexation and du jure annexation of the oPt are equally illegal. This blogpost discusses Israel’s plan to claim its sovereignty over and annex the oPt and the duty of third states to not acknowledge such annexation within the mild of the ICJ’s 2024 Advisory Opinion.
The ICJ devoted paragraphs 157–179 to debate the notion of territorial annexation and study Israel’s insurance policies and practices and their (il)legality, with a view to figuring out whether or not they quantity to territorial annexation. Annexation of all or a part of the occupied territory by the occupying energy is seen as a type of aggression in line with Article 5(3) of the UN Normal Meeting (UNGA) Decision 3314 (XXIX) on the Definition of Aggression, which states that “[n]o territorial acquisition or particular benefit ensuing from aggression is or shall be acknowledged as lawful” (see UNGA Res 3314 (XXIX) of 14 December 1974, Annex: Definition of Aggression, artwork 5.3). The UN Safety Council (UNSC) emphasised the precept of “inadmissibility of the acquisition of territory by struggle” in Decision 242 (1967). It additionally has repeatedly affirmed such inadmissibility on numerous events (Resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003), 1850 (2008), and 2334 (2016)).
Likewise, UNGA and the Human Rights Council (HRC) recognised the inadmissibility of territorial acquisition (Resolutions UNGA Res. 3237 (XXIX) of twenty-two November 1974, UNGA Res. 43/177 of15 December 1988 and 52/250 of seven July 1998, and UNGA Res. 72/14 of seven December 2017; see additionally HRC Res. 37/36 of 6 April 2018). The UN Declaration on Ideas of Worldwide Legislation regarding Pleasant Relations and Co-operation amongst States from 1970 proclaims the precept that “[n]o territorial acquisition ensuing from the menace or use of pressure shall be recognised as authorized” (see p. 123). The Court docket has beforehand referred to territorial integrity as a mirrored image of customary worldwide legislation (the Wall Advisory Opinion 2004, para 86), and affirmed that “State apply and opinio juris on the related time affirm the customary legislation character of the best to territorial integrity of a non-self-governing territory as a corollary of the best to self-determination” (Chagos Advisory Opinion 2019, para 159). Thus, the acquisition of occupied territory by the occupying energy is illegal and contradicts Article 2, paragraph 4, of the Constitution of the United Nations. The Court docket primarily based the prohibition of annexation on the prohibition of the usage of pressure and related it with the best of the Palestinian folks to self-determination. In truth, the dialogue on the prohibition of annexation as a separate and stand-alone precept is missing (see evaluation by Brunk and Hakimi right here, right here and right here). With merging the prohibition of annexation into the understanding of the prohibition of the usage of pressure and the best to self-determination, the court docket implicitly considers the prohibition of territorial annexation as obligation erga omnes.
In keeping with the precept of the inadmissibility of territorial acquisition by pressure, the Court docket outlined annexation as:
“the forcible acquisition by the occupying Energy of the territory that it occupies, particularly its integration into the territory of the occupying Energy. Annexation, then, presupposes the intent of the occupying Energy to train everlasting management over the occupied territory” (ICJ 2024 Advisory Opinion, para 158).
Some students argued that with this definition, the Court docket “discards the excellence between de jure and de facto annexations in favor of a regular that focuses on intent to claim assertions of ‘everlasting management’ over the territory” (see right here). When discussing annexation in its Advisory Opinion, Court docket focuses on the intent factor certainly. Nonetheless, specializing in the intent disregards the Israeli practices and plans to annex the Palestinian territory as such as a result of sure actions equivalent to settlements and land confiscation are unlawful and everlasting in nature. Thus, the intent shouldn’t be a prerequisite to illegality of territorial annexation by pressure as actions have to be enough to find out annexation and its illegality.
The Court docket nonetheless differs between de facto annexation and de jure annexation. The Israeli territorial annexation in Palestine is considered being carried out in two types, one is manifested formally within the legislation (de jure) and the opposite is manifested via insurance policies and apply (de facto) (see Report of the Particular Rapporteur on the scenario of human rights within the Palestinian territories occupied since 1967 (A/73/45717). The Court docket drew the excellence between de jure annexation and de facto annexation. In accordance with this distinction:
“de jure annexation consists within the formal declaration by the occupying Energy of sovereignty over the occupied territory, whereas de facto annexation contains acts in need of a proper declaration that create a “fait accompli” on the bottom and that consolidate the occupying Energy’s everlasting management over the occupied territory” (ICJ 2024 Advisory Opinion, para 160).
Israel’s insurance policies and practices within the oPt are entrenching its in depth management over the Palestinian folks. They’re of everlasting nature and irreversible results. Consequently, the Court docket deems that “these insurance policies and practices quantity to annexation of huge elements of the [oPt]” (ICJ 2024 Advisory Opinion, para 173). De facto annexation is assessed in accordance with the practices on the bottom and requires a complete authorized evaluation, which has already been offered by the Court docket. Whether or not or not the Israeli authorities formally pronounces a legislation or declaration to annex the oPt in full or half, Israel’s insurance policies and practices yield that it has de facto imposed its whole management and asserted its sovereignty. The deciding factor to determine de facto annexation is the everlasting fixture of those insurance policies and practices, as they’re designed and carried out for all intents and functions to remain in place, equivalent to settlements and their related infrastructure. Subsequently, the temporariness can’t be used as a justification underneath the legislation of occupation. In truth, the Court docket thought-about that the insurance policies and practices of Israel renders the Israeli presence within the oPt unlawful.
An official announcement would imply turning de facto annexation to de jure annexation. Such announcement wouldn’t make a distinction on the authorized stage; nonetheless, it’s going to make annexation an express conduct that unquestionably obliges different States to take essential measures. Israel is in violation of sure worldwide obligations, together with the duty erga omnes arising from the prohibition of the usage of pressure to accumulate territory. As a result of the prohibition of territorial annexation is a priority to all States, different States, are underneath the authorized obligation “to not acknowledge as lawful territorial modifications effected via annexation” (Hofmann 2020). That is recognised as a binding rule of worldwide legislation. In accordance with Decision 3314 (XXIX), not solely is territorial annexation a breach of worldwide legislation but it surely additionally applies to the popularity of such an annexation. In accordance with UNGA Decision 77/126, it is usually illegal to render support or help in sustaining, the scenario created by measures which might be unlawful underneath worldwide legislation.
The Court docket affirmed these authorized penalties for different States and offered that:
“Member States are underneath an obligation to not acknowledge any modifications within the bodily character or demographic composition, institutional construction or standing of the territory occupied by Israel… together with East Jerusalem… [and that] all States are underneath an obligation to not acknowledge as authorized the scenario arising from the illegal presence of Israel within the [oPt and] to not render support or help in sustaining the scenario…]” (ICJ 2024 Advisory Opinion, paras 278-279).
The Court docket offered two principal damaging obligations to chorus from actions that violate worldwide legislation. On this regard, different states who acknowledge Israel’s presence within the oPt as authorized or help in sustaining the scenario are in violation of their worldwide obligations. As a means of instance, the USA’s recognition of unified Jerusalem because the capital of Israel and relocating its embassy to Jerusalem are unlawful, as a result of they represent a transfer that recognises Israel’s territorial annexation of East Jerusalem as authorized. To not point out that the embassy is constructed on a Palestinian privately-owned land “stolen from its house owners, together with the waqf property of a number of [Palestinian] households” (see right here). Moreover, there are constructive obligations that Third States implement, the obligation to forestall acts of territorial annexation by pressure, Third States should act to finish and take measures to forestall – any additional – Israeli annexation of the Palestinian territory sooner or later. Lastly, the help or lack of motion from Third States is an indication of a failure to take care of worldwide peace and safety that undermines worldwide rule-based authorized order.
