Self-Determination As A Right To Be Self-Governing
Mr Ralph Wilde Representing the League of Arab States Part 2
SELF-DETERMINATION AS A RIGHT TO BE SELF-GOVERNING, REQUIRING THE OCCUPATION TO END IMMEDIATELY[1]
Mr Ralph Wilde Representing the League of Arab States Part 2
Ralph Wilde: Beginning with self-determination: this right, when applied to the Palestinian people in the territory Israel captured in 1967, is a right to be entirely self-governing, free from Israeli domination.
Consequently, the Palestinian people have a legal right to the immediate end of the occupation. And Israel has a co-relative legal duty to immediately terminate the occupation.
This right exists and operates simply and exclusively because the Palestinian people are entitled to it. It does not depend on others agreeing to its realization. It is a right.
It is a repudiation of “trusteeship”, whereby colonial peoples were ostensibly to be granted freedom only if and when they were deemed “ready” because of their stage of “development” determined by the racist standard of civilization[2]. The anti-colonial self-determination rule replaced this with a right based on the automatic, immediate entitlement of all people to freedom, without preconditions. In the words of General Assembly resolution 1514, “inadequacy of . . . preparedness should never serve as a pretext for delaying independence”[3].
Some suggest that the Palestinian people were offered, and rejected, deals that could have ended the occupation. And, therefore, Israel can maintain it pending a settlement. Even assuming, arguendo, the veracity of this account, the “deals” involved a further loss of the sovereign territory of the Palestinian people.
Israel cannot lawfully demand concessions on Palestinian rights as the price for ending its impediment to Palestinian freedom. This would mean Israel using force to coerce the Palestinian people to give up some of their peremptory legal rights: illegal in the law on the use of force and, necessarily, voiding the relevant terms of any agreement reached. The Palestinian people are legally entitled to reject a further loss of land over which they have an exclusive, legal, peremptory right. Any such rejection makes no difference to Israel’s immediate legal obligation to end the occupation.
THE OCCUPATION AS AN ILLEGAL USE OF FORCE IN THE JUS AD BELLUM AS A GENERAL MATTER (BEYOND THE LINK TO PURPORTED ANNEXATION)[4]
Turning to the law on the use of force: Israel’s control over the Palestinian territory since 1967, as a military occupation, is an ongoing use of force. As such, its existential legality is determined by the law on the use of force, as a general matter, beyond the specific issue of annexation.
Israel captured the Gaza Strip and West Bank from Egypt and Jordan in the war it launched against them and Syria. It claimed to be acting in self-defence, anticipating a non-immediately imminent attack. The war was over after six days. Peace treaties between Israel and Egypt and Jordan were subsequently adopted[5].
Despite this, Israel maintained control of the territory — continuing the use of force enabling its capture.
Israel’s 1967 war was illegal in the jus ad bellum — even assuming, arguendo, its claim of a feared attack, States cannot lawfully use force in non-immediately imminent anticipatory self-defence.
Alternatively, assuming ⎯ again arguendo ⎯ that the war was lawful, the justification ended after six days. However, the jus ad bellum requirements continued to apply to the occupation as itself a continuing use of force. In 1967, with self-determination well established in international law, States could not lawfully use force to retain control over a self-determination unit captured in war, unless the legal test justifying the initial use of force also justified, on the same basis, the use of force in retaining control. Moreover, this justification would need to continue, not only in the immediate aftermath, but for more than half a century. Manifestly, this legal test has not been met[6].
Israel’s exercise of control over the Gaza Strip and West Bank through the use of force has been illegal in the jus ad bellum since the capture of the territory, or, at least, very soon afterwards.
The occupation is, therefore, again existentially illegal in the law on the use of force — an aggression — this time, as a general matter, beyond illegality specific to annexation. To terminate this serious violation, the occupation must, likewise, end immediately.
ILLEGAL FORCE DOES NOT BECOME LAWFUL IN RESPONSE TO RESISTANCE TO IT[7]
What of Israel’s current military action in Gaza? This is not a war that began in October 2023. It is a drastic scaling-up of the force exercised there, and in the West Bank, on a continual basis, since 1967. A justification for a new phase in an ongoing illegal use of force cannot be constructed solely out of the consequences of violent resistance to that illegal use of force. Otherwise, an illegal use of force would be rendered lawful because those subject to it violently resisted — circular logic, with a perverse outcome.
ISRAEL CANNOT LAWFULLY USE FORCE TO CONTROL THE PALESTINIAN TERRITORY FOR SECURITY PURPOSES/PENDING A PEACE AGREEMENT[8]
More generally, Israel cannot lawfully use force to control the Palestinian territory for security purposes pending an agreement providing security guarantees. States can only lawfully use force outside their borders in extremely narrow circumstances. Beyond that, they must address security concerns non-forcibly.
The United States of America, the United Kingdom and Zambia suggested here that there is a sui generis applicable legal framework, an Israeli-Palestinian lex specialis. This somehow supersedes the rules of international law determining whether the occupation is existentially lawful. Instead, we have a new rule, justifying the occupation until there is a peace agreement meeting Israeli security needs. This is the law as these States would like it to be, not the law as it is. It has no basis in resolution 242, Oslo or any other resolutions or agreements[9]. Actually, you are being invited to do away with the very operation of some of the fundamental, peremptory rules of international law itself. As a result, the matters these rules conceive as rights vested in the Palestinian people would be realized only if agreement is reached, and only on the basis of such agreement. At best, if there is an agreement, this means one that need not be compatible with Palestinian peremptory legal rights, determined only by the acute power imbalance in Israel’s favour[10]. At worst, if there is no agreement, this means that the indefinite continuation of Israeli rule over the Palestinian people in the occupied Palestinian territories, on the basis of racist supremacy and a claim to sovereignty, would be lawful[11]. This is an affront to the international rule of law, to the United Nations Charter imperative to settle disputes in conformity with international law, and to your judicial function as guardians of the international legal system[12].
A final potential basis sometimes invoked to justify continuing the occupation should be addressed. Occupation and human rights law — applicable to illegal and lawful occupations alike — oblige Israel to address security threats in occupied territory. However, they only regulate the conduct of an occupation when it exists. They do not also provide a legal basis for that existence itself. Existential legality is determined by the law of self-determination and the jus ad bellum only. There is no “back door” legal basis for Israel to maintain the occupation through the imperatives of occupation and human rights law[13].
EXISTENTIAL ILLEGALITY OF ISRAEL’S OCCUPATION OF THE PALESTINIAN GAZA STRIP AND WEST BANK, INCLUDING EAST JERUSALEM
In sum: the occupation of the Palestinian Gaza Strip and West Bank, including East Jerusalem, is existentially illegal on two mutually reinforcing bases.
First, the law on the use of force. Here, the occupation is illegal both as a use of force without valid justification, and because it is enabling an illegal purported annexation. As such, it is an aggression.
Second, the law of self-determination. Here, it is illegal again because of the association with illegal purported annexation, and also, more generally, because it is, quite simply, an exercise of authority over the Palestinian people that, by its very nature, violates their right to freedom.
This multifaceted existential illegality — involving serious violations of peremptory norms — has two key consequences.
First: the occupation must end: Israel must renounce its claim to sovereignty over the Palestinian territory; all settlers must be removed. Immediately. This is required to end the illegality, to discharge the positive obligation to enable immediate Palestinian self-administration, and because Israel lacks any legal entitlement to exercise authority.
Second, in the absence of the occupation ending, necessarily, everything Israel does in the Palestinian territory lacks a valid international legal basis and is, therefore (subject to the Namibia exception), invalid, not only those things violating the law regulating the conduct of the occupation[14]. Those norms entitle and require Israel to do certain things. But this does not alter the more fundamental position, from the law on the use of force and self-determination, that Israel lacks any valid authority to do anything, and whatever it does is illegal, even if compliant with or pursuant to the conduct-regulatory rules.
THE WORDS OF REFAAT ALAREER
I will close by quoting Palestinian academic and poet Refaat Alareer, from his final poem posted 36 days before he was killed by Israel in Gaza on 6 December 2023:
If I must die, you must live to tell my story [...]
If I must die
let it bring hope, let it be a story.[15]
[1] See generally Written Statement of the League of Arab States, Sec. 4.c., pp. 9-10, Sec. 10, pp. 20-21, Sec. 11.d., pp. 22-23; Wilde, Master’s Tools, Secs. IV-VIII, pp. 35-73).
[2] See Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (OUP 2008), Chap. 8.
[3] UNGA res. 1514 (XV), 14 Dec. 1960, UN doc. A/RES/1514 (XV), para. 3.
[4] See Written Statement of the League of Arab States, Sec. 12, pp. 23-26; Written Comments of the League of Arab States, Sec. 7, pp. 32-33; and Wilde, Master’s Tools, Section III, pp. 21-35.
[5] Treaty of Peace between Egypt and Israel, 26 March 1979, UNTS, Vol. 1136, p. 100; Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, 26 October 1994, UNTS, Vol. 2042, p. 351.
[6] Written Statement of the League of Arab States, p. 25, paras. 70-71; Wilde, Master’s Tools, pp. 25-26.
[7] Ralph Wilde, “Israel’s War in Gaza is Not a Valid Act of Self-defence in International Law”, Opinio Juris, 9 Nov. 2023, https://opiniojuris.org/2023/11/09/israels-war-in-gaza-is-not-a-valid-act-of-self-defence-in-international- law/.
[8] See Written Statement of the League of Arab States, p. 24, paras. 63-66, p. 25, paras. 72-73; Written Comments of the League of Arab States, Sec. 3, pp. 5-17; Wilde, Master’s Tools, pp. 27-31.
[9] See Written Statement of the League of Arab States, Sec. 12.b, p. 24; and also Written Comments of the League of Arab States, Sec. 3, pp. 5-17.
[10] See also Written Comments of the League of Arab States, p. 16, para. 54. 33 Ibid.
[11] Ibid.
[12] Ibid., Sec. 3.b, pp. 6-8, paras. 54-55, p. 17 and pp. 19-20, paras. 62-63.
[13] Written Statement of the League of Arab States, Sec. 15.b, pp. 34-36. 36 Ibid., Sec. 15, pp. 34-37, and Sec. 17, pp. 38-41.
[14] Ibid., Sec. 15, pp. 34-37, and Sec. 17, pp. 38-41.
[15] Refaat Alareer [@itranslate123]. “If I must die, let it be a tale.” X, 1 Nov. 2023, https://twitter.com/itranslate123/ status/1719701312990830934.