A Seismic Change: Dr. Ardi Imseis on the International Court of Justice Advisory Opinion on Israel’s Illegal Presence in the Occupied Palestinian Territory

By: Daniel Pope (3L)

Credit: Creative Commons

Introduction

Last semester, Dr. Ardi Imseis, Associate Professor of Law at Queen’s University, and Legal Counsel for the State of Palestine before the International Court of Justice (the “ICJ”) visited our law school to share his perspective on the 19 July 2024 advisory decision of the ICJ, which found Israel’s continued occupation of the Palestinian Territories (Gaza, the West Bank, and East Jerusalem) to be unlawful in light of Israel’s conduct therein. Dr. Imseis had previously visited the law school in January 2024 to promote his book, The United Nations and the Question of Palestine: Rule by Law and the Structure of International Legal Subalternity.

Subalternity in the International Legal Order

To Dr. Imseis, the essence of the international legal subaltern condition is that those subject to it are told of the promise of international law despite its full realization perpetually kept out of reach by the very same institution which espouses it: the United Nations. He argues that the international legal order, rooted in a Eurocentric conception of international law, fails to achieve rule of law in the international system, instead acting as a system of rule by law. Rules are fashioned and applied by international hegemons in a manner abusive to smaller, less powerful states.

However, Dr. Imseis provides an optimistic view on the future of international law: that it contains the “seeds of resistance” through which less powerful states can counter the hegemonic influence of the powerful. As examples, he puts forward the emergence of relatively new principles surrounding decolonization, new international economic orders champions by postcolonial states, the recognition of new categories of international legal personality (e.g., displaced persons and Indigenous peoples), and multiple attempts by Global South countries to use the organs of the legal international system to hold the Global North to account, including South Africa’s action against Israel at the ICJ.

United Nations General Assembly Resolution 77-247

However, the process which Dr. Imseis came to share his perspectives on is that which followed United Nations General Assembly resolution 77-247 which, inter alia, requested that the ICJ provide an advisory opinion on the status of the Israeli occupation of the Palestinian Territories. In particular, the Resolution asked (a) what legal consequences arise from Israel’s actions (which the Resolution enumerates) and (b) how those actions affect the legal status of the occupation itself and what consequences arise therefrom for other States and the United Nations.

The ICJ’s Advisory Opinion

The crux of the ICJ’s decision is that Israel’s violations of the Law of Belligerent Occupation have rendered the continuation of the occupation unlawful and, correspondingly, have placed upon Israel the duty to end the occupation and withdraw from the Occupied Territories “as rapidly as possible.” In addition, the ICJ tells us that Israel’s obligations in righting the wrong include making appropriate assurances of non-repetition, reparation to all persons affected since 1967, the return of stolen property, and to allow the return of refugees.

In so deciding, the ICJ ruled that Israel’s violations of the Law of Belligerent Occupation cannot be justified through a right to self-defence. This is consistent with the ICJ’s previous holdings that self-defence does not enable the use of military force by an occupier in retaliation for an attack which originates from the territory it occupies. Likewise, the ICJ effectively characterizes the continued occupation as analogous to the widely recognized international crime of aggression, precluding the application of self-defence as a justification.

Collapsing the Distinction between Jus ad Bellum and Jus in Bello

Perhaps the most legally significant part of the ruling is the Court’s apparent fusion of the two broad categories of international humanitarian law which have, until now, remained entirely distinct. Of these, jus ad bellum governs the reasons for which a state may lawfully go to war. This is an especially important body of law since the United Nations Charter created a general prohibition on the use of force in international relations in 1945. As such, for the use of force by one state against another to be lawful, it must be justified under jus ad bellum.

In contrast to jus ad bellum, jus in bello regulates the lawfulness of conduct in an active armed conflict. This is where war crimes, crimes against humanity, and other major international crimes like genocide are contained. This is also the branch of international humanitarian law which encompasses the Law of Belligerent Occupation, governing the lawfulness of conduct by an occupying power. A central tenet of international humanitarian law under the conventional wisdom which prevailed before the ICJ’s advisory decision was that the two branches must remain separate, and illegality under one could not affect legality under the other. This was to avoid attempts to justify violations of one branch based on alleged violations of the other.

This is the distinction which the ICJ appears to collapse in its decision. In deciding that Israel’s violations of the Law of Belligerent Occupation (jus in bello) render the occupation itself illegal (an expression of jus ad bellum), the ICJ has allowed for the first time illegal in bello conduct to affect the ad bellum legality of the general use of force.

The justification for this collapse is that the cumulative effect of in bello violations of the Law of Belligerent Occupation which are incompatible with the very rationale underlying that body of law can remove the legal basis for the occupation itself. A core tenant of the Law of Belligerent Occupation is that occupation is inherently temporary and cannot effect the transfer of sovereignty over the occupied territory. This is rooted in one of the most important elements of the modern international legal order: the prohibition on the acquisition of territory by force. Since occupation is itself a forceful act, it cannot be used to transfer territory from one state to another.

Israel’s actions as occupier of the Palestinian Territories, the Court tells us, amount to de facto annexations of large parts of the territories and are designed to keep the occupation in place indefinitely. This is the inherent incompatibility with the Law of Belligerent Occupation.

What Does This Mean for Canada and Other States?

Dr. Imseis tells us that the legal effect of this decision is that, through its continued occupation of the Palestinian Territories, its frustration of the establishment of a viable Palestinian state, and its de facto annexation of territory acquired by force, Israel is engaging in serious violations of so-called peremptory norms of international law. Also called norms of jus cogens, these are legal obligations on states that are so important to the international order as a whole that they are binding on all and that violations of those peremptory norms create obligations on third states in respect of the state violating them. As a member of the international community, Israel’s violation of peremptory norms, Dr. Imseis says, therefore creates obligations for Canada in how it responds to the Israeli occupation.

Chief among these obligations are the duty of non-recognition of legality of violations of peremptory norms, and the duty to refuse to render assistance in the maintenance of the wrongful act. These obligations apply both in bilateral relations with Israel and in multilateral relations with other states.

In refusing to recognize the unlawful act, Dr. Imseis tells us that Canada and other states are obliged to distinguish in their dealings between Israel (with whom states are entitled to maintain economic and political relationships) and the Occupied Palestinian Territories. Dr. Imseis argues this effectively establishes BDS (the movement for “Boycotts, Divestment, and Sanctions” against Israel) a legal obligation on the international community, at least as it pertains to the Occupied Territories. Likewise, the international community, including Canada, have an obligation to refrain from any activities which could assist Israel in maintaining the occupation. Dr. Imseis analogizes these obligations to those facing the international community following the legal finding that Apartheid South Africa’s continued occupation of Namibia (originally given as a League of Nations Mandate) was illegal.

What’s Next?

Despite the name, the ICJ’s advisory opinion is, according to Dr. Imseis, binding on international law. These obligations—on Israel, on Canada, and on every state in the international order—have real legal effect. However, the realities of international law prevail, and without a practical means to enforce the Court’s will, Israel’s violations of international law can effectively continue.

Instead, Dr. Imseis’s optimism is rooted in the cumulative political effect such declarations can have. As violations of international humanitarian law are further spotlighted, political pressure may mount on Israel and its partners to withdraw from the Palestinian Territories and given effect to the Palestinian right to self-determination in the form of a viable state.