1. Introduction
Twenty years after the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion,Footnote 1 the occupation of Palestine by Israel has once again been brought before the International Court of Justice. The issues at stake significantly differ from those raised in 2004. In the first advisory opinion, the Court was asked to determine the ‘legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory’.Footnote 2 Two decades later, the United Nations General Assembly sought the Court’s insight into (i) the legal consequences arising from various Israeli policies and practices, including its prolonged occupation, and (ii) their impact on the legal status of the occupation.Footnote 3 It should be stated at the outset that no legal instrument formally enshrines the concept of prolonged occupation. There exists, therefore, no clearly defined threshold beyond which an occupation is deemed prolonged.Footnote 4 In the case of the Israeli occupation, the United Nations Security Council referred to it as a prolonged occupation in 1980 – 13 years after the occupation began.Footnote 5 This notion was, however, invoked by states to describe the Israeli occupation prior to that date. Notably, during a Security Council meeting on 21 March 1968, the Algerian representative had already referred to the situation as a prolonged occupation.Footnote 6
With this terminological clarification established, and returning to the advisory opinion, the International Court of Justice interpreted the second question raised by the General Assembly, related to the ‘legal status of the occupation’, as referring to ‘the legality of the continued presence of Israel’,Footnote 7 i.e., the occupation itself.Footnote 8 When assessing the legality of the Israeli occupation in their submissions, states have drawn on various legal frameworks, including jus contra bellum and the right to self-determination, but have also explored a less conventional one: jus in bello. Several states argued that, due to its unprecedented duration and protracted character, the occupation should be declared illegal under jus in bello as well,Footnote 9 thereby supporting an increasingly popular position amongst scholars.Footnote 10 The temporal dimension of the occupation emerged as a recurring theme in the analysis conducted by states. The underlying rationale is that, by its very nature, occupation is meant to be a temporary situation,Footnote 11 with the rules laid down by the law of occupation relying upon this assumption. By definition, a decades-long occupation stands as a challenge to the very foundational premises upon which the law of occupation is built. Nevertheless, international humanitarian law does not provide a specific rule that prohibits the prolongation of occupation or establishes any time limit regarding its duration.Footnote 12 Accordingly, other states have pushed back against this novel approach, contending instead that the passage of time does not affect the legality of an occupation under jus in bello.Footnote 13
Given these opposing arguments, it is legitimate to ponder on the prolonged character of the occupation when assessing its legality under international humanitarian law.Footnote 14 This contribution discusses this question on the basis of states’ submissions in the context of the Policies and Practices of Israel Opinion, using them as its primary research material. It will be demonstrated that the argument positing that the passage of time can render an occupation unlawful under jus in bello does not reflect the current state of the law. Instead, the author proposes an alternative interpretation, drawing on the language adopted by states in the context of these proceedings: based on the general principle of law of abuse of rights, the situation should be framed as an abuse of the law of occupation rather than a straightforward violation of this regime. As will be shown, although such an abuse does not affect the legality of the occupation per se, it bears significant consequences for the legality of the acts undertaken by the Occupying Power in the occupied territory. It is important to note that this article does not purport to determine whether there is indeed such an abuse in casu, but rather seeks to contribute to the ongoing discussions on this matter by proposing a new approach derived from the terminology employed by states.
Before delving into this analysis, however, it is essential to provide a theoretical overview of the temporary nature of the occupation to fully grasp the implications of this debate, considering the International Court of Justice’s most recent findings as well as the ICRC’s updated Commentary on the Fourth Geneva Convention of 2025.
2. The temporary nature of the occupation is the cornerstone of the law of occupation
An occupation must necessarily be of a provisional nature. This goes without saying: had occupation not been conceived as a temporary phenomenon, it would amount to an acquisition of territory by force and would therefore be unlawful by its very nature.Footnote 15 This temporary nature is embedded in the law of occupation as a whole and is reflected more specifically at two distinct levels: first, in its temporal scope of application and, second, within its substantive rules.
2.1. Temporality within the temporal scope of application of the law of occupation
Regarding the temporal scope of application of the law of occupation, it should be emphasized from the outset that the Hague Regulations are silent on the application ratione temporis of their rules.Footnote 16 Article 43 of the said instrument merely implies that, at the time of its adoption, occupation was conceived as a temporary phenomenon of short duration.Footnote 17 However, by the time the Fourth Geneva Convention was adopted, it became clear that an occupation could extend beyond the hostilities between the involved parties, although the drafters still operated under the assumption of short-term occupations.Footnote 18 As a result, Article 6(3) of the Fourth Geneva Convention provides that, one year after the general close of military operations, the Convention shall cease to apply, but the Occupying Power retains a set of obligations exhaustively enumerated provided that it continues to exercise governmental functions.Footnote 19 Building on the precedents of Germany and Japan in the aftermath of the Second World War, and assuming that no occupation would last indefinitely, the drafters believed that, if an occupation continued beyond the end of hostilities, the local authorities should gradually regain their powers a year after the general close of military operations.Footnote 20 Consequently, there would be no further need for the Occupying Power to remain responsible for these functions. However, the forms that occupations have come to take over the course of the years no longer align with this narrative.
In 2004, the International Court of Justice provided an interpretation of Article 6(3) that was met with strong criticism, notably because the Court considered the end of the 1967 military operations that led to the occupation as the starting point from which the one-year period began to run, rather than the general close of military operations as per the text of Article 6(3)Footnote 21 – i.e., ‘the end of active hostilities but also the end of military movements of a bellicose nature’.Footnote 22 Moreover, some scholars argued that this provision has now been replaced by Article 3(b) of the First Additional Protocol as customary law,Footnote 23 or could even be considered as having ‘fallen into desuetude’.Footnote 24 However, the proceedings surrounding the Advisory Opinion on the Policies and Practices of Israel seem to contradict this claim of obsolescence. Indeed, several states explicitly referred to Article 6(3) in their analysis.Footnote 25 The Court discussed this provision as well:
If, however, local authorities have not resumed governmental functions, the occupying Power is not released from the obligations that arise out of its continued effective control over the occupied territory. Its basic duty to administer the territory for the benefit of the local population, and all the individual obligations arising thereunder, endures. To conclude otherwise would be contrary to the object and purpose of the Fourth Geneva Convention and would deprive the population subject to an ongoing occupation of the protection that it enjoys under international humanitarian law. Accordingly, the Court considers that, in circumstances in which the local authorities in the occupied territory have not resumed exercising governmental functions a year after the close of the military operations, the obligations of the occupying Power under the Fourth Geneva Convention remain in force, notwithstanding Article 6, paragraph 3.Footnote 26
Accordingly, in the view of the Court, if governmental functions are not restored to the occupied local authorities, the selection of obligations operated by Article 6(3) is not applicable, and the obligations of the Occupying Power remain en bloc. Building on this advisory opinion, the ICRC’s updated Commentary of 2025 now states that ‘occupation law applies in full and without the temporal restraints set by Article 6(3), as long as the Occupying Power maintains the occupation’.Footnote 27 Moreover, the Commentary argues that, in the situation of occupations, the prerequisite of ‘general close of military operations’ will, in principle, not be fulfilled given that a belligerent occupation, however stable, is not only established but also maintained by the military dominance of the Occupying Power.Footnote 28 Such an interpretation of the temporal scope of the duties of the Occupying Power is consistent with the particularities of prolonged occupations and aligns with the object and purpose of the Fourth Geneva Convention.
In a similar vein, when the First Additional Protocol was adopted, the drafters recognized that Article 6(3) of the Fourth Geneva Convention was not adapted to contemporary occupations. Guided by this understanding, they formulated Article 3(b) of the First Additional Protocol to ensure the continued applicability of the Geneva Conventions and the Protocol throughout the duration of the occupation.Footnote 29 In the words of the Cypriot delegation, ‘people subjugated by the might of a foreign army will aspire to the protection of the humanitarian law until their plight is ended’.Footnote 30 This approach addressed concerns that had already been voiced during the 1949 Diplomatic Conference. Indeed, the Bulgarian delegate expressed his concern that ‘considerable time might elapse before an occupation end[s]’,Footnote 31 suggesting it would be preferable to ensure the implementation of the Convention and the obligations arising therefrom ‘as long as the conditions provided for in the Convention existed’.Footnote 32 The First Protocol acknowledges this, leading some to argue that it is better suited for prolonged occupationsFootnote 33 than Article 6(3), which, correctly identified the problem (i.e., the prolongation of the occupation) but ultimately failed to propose a viable solution.Footnote 34
2.2. Temporality within the substantive rules of the law of occupation
As to the substantive rules of occupation law, the provisional nature of occupation is reflected in the obligation to maintain the status quo ante, a principle which underpins the entire framework.Footnote 35 This ‘conservationist principle’ mandates the Occupying Power to respect pre-existing laws and minimize changes within the occupied territory, while ensuring the general welfare of the occupied population.Footnote 36 This emphasis on the imperative of ‘freezing’ the situation in the occupied territory is historically rooted in the understanding that an occupation is a provisional phenomenon, merely serving as a transition preceding peacetime.Footnote 37 Consequently, numerous rules of occupation law governing the Occupying Power’s conduct were drafted with the intent of preserving the situation as it was at the outset of the occupation.
Thus, the ‘conservationist principle’ is not only enshrined in Article 43 of the Hague Regulations, which requires the Occupying Power to respect the laws in force within the occupied territory, except when absolutely prevented from doing so,Footnote 38 but can also be found implicitly in various other provisions. For instance, Article 64(1) of the Fourth Geneva Convention reinforces this provision by affirming that the penal laws of the occupied territory remain applicable, although certain exceptions may apply.Footnote 39 In addition, some have interpreted Article 47 of the same convention as prohibiting annexation.Footnote 40 Furthermore, Article 54 ‘prohibits the Occupying Power from altering the status of civil servants or judges in the occupied territory’.Footnote 41 The commentary of Article 54 indicates that its purpose is to preserve the existing state of affairs until a return to normality is achieved and the legitimate sovereign regains control over its territory.Footnote 42 While many other examples could be added, these are sufficient to illustrate the point.
Be that as it may, contemporary occupations do not conform to the traditional view of occupation as a mere transition before peacetime. In the context of prolonged occupations, the ‘conservationist principle’ is inevitably undermined.Footnote 43 Indeed, the prevailing conception at the time of the adoption of the aforementioned legal instruments did not adequately account for the emergence of new needs requiring significant institutional changes. As a result, some scholars,Footnote 44 states,Footnote 45 and even courtsFootnote 46 have argued that the rules of occupation law should be reinterpreted to reflect the prolonged nature of occupation and to give the Occupying Power more room for manoeuvre, where deemed appropriate. Nonetheless, especially in light of the relatively limited practice consistent with this position, the author believes that caution is warranted when asserting that occupation law should, as a matter of principle, be interpreted more extensively in cases of prolonged occupations, particularly if the Occupying Power has manifested its intention to annex the territory. However, this question goes beyond the scope of this discussion.
In sum, although the law of occupation does not set a specific limit to the duration of an occupation, it is based on the premise that an occupation is temporary in nature. This assumption has shaped the entire legal framework. In this context, several states have argued before the International Court of Justice that, as the Israeli occupation appears to be taking on a permanent character, its presence is contrary to the spirit of the law of occupation. As a result, it should be considered illegal under jus in bello. This interpretation, however, is far from universally accepted, as will be demonstrated in the next section.
3. The illegality of occupation in jus in bello due to its protracted character: An issue dividing states
As the theoretical framework has now been established, this section examines how those rules have been interpreted by states in the context of the Policies and Practices of Israel Opinion. In that regard, 12 states considered that, due to its duration, the Israeli occupation should be considered illegal under jus in bello,Footnote 47 while a handful of other states have presented opposing arguments.Footnote 48
3.1. First category of states: The duration of the occupation is incompatible with the principle of temporariness under international humanitarian law
Several states have maintained that the Israeli occupation is unlawful under jus in bello by attributing a normative status to its temporary nature. Such an approach presupposes that, progressively and due to its duration, occupation would no longer be considered only as a purely factual situation under international humanitarian law.Footnote 49 In that sense, Bolivia
considers that the Israeli colonialist occupations are clearly illegal according to jus in bello, and are illegal occupations because there is a violation of the normative order and the legal régime of the occupation such as the principle[s] of ‘temporality[…].’Footnote 50
The temporary character of the occupation is erected as a principle of temporariness, capable of providing a basis upon which the legality of the occupation can be assessed under jus in bello, in addition to and independently from the jus contra bellum framework.Footnote 51 Consequently, any occupation that is not temporary would be contrary to international humanitarian law as it would not comply with the fundamental temporariness principle inherent to the law of occupation. Namibia thus contended that, since the law of occupation apprehends occupation as a temporary measure ‘immediately following military operations, Israel’s prolonged – or permanent – occupation breaches the law of occupation’.Footnote 52 Similarly, Kuwait argued that the Israeli occupation ‘is illegal because it obviously violates the law of military occupation. For instance, the occupation of the OPT is not of a minimal duration. Facts clearly demonstrate that it is intended to be prolonged and ultimately permanent’.Footnote 53 The Maldives presented a similar argument, asserting that the Israeli occupation violates international humanitarian law because ‘the occupation has not been temporary, and indeed Israel does not contemplate any end to it’.Footnote 54
For these states, therefore, the Israeli occupation may be deemed unlawful under jus in bello on account of its protracted nature, insofar as it reveals that Israel does not conceive its presence as provisional – the temporariness of the occupation constituting, as discussed above, the cornerstone of the law of occupation. Such a reference to a normative framework based on fundamental principles of the law of occupation can also be found in the separate opinion of Judge Yusuf:
Israel’s excessively prolonged occupation, which has lasted for more than half a century, violates the basic tenet that belligerent occupation must be temporary, which is one of the main features distinguishing such occupation from colonial occupation and conquest. Moreover, an indefinite prolongation of occupation has a direct bearing on the very legality of the occupation. Any military occupation of foreign territory that changes the characteristics of belligerent occupation under international humanitarian law and decouples it from its normative framework must be considered unlawful. It follows that Israel’s prolonged occupation of the Occupied Palestinian Territory is to be considered unlawful by dint of its prolonged character in disregard of the law of belligerent occupation.Footnote 55
In sum, states supporting this argument mainly invoke the principle of temporariness as a basis for their reasoning. Only a limited number of these states provide a specific legal basis for this principle, mainly referencing Articles 6(3) and 47 of the Fourth Geneva Convention – already discussed above.Footnote 56 These states argued that, although these provisions do not explicitly prohibit the Occupying Power from prolonging its occupation, their wording implies that the occupation is, by its nature, temporary. On what grounds exactly can this principle, inferred from the aforementioned articles, be invoked to assess the legality of the occupation as such? States are less explicit on this point and tend to assume that the principle can unproblematically be invoked in such a manner, relying on Michael Lynk’s 2017 report on a regular basis.Footnote 57 Within the latter, the former Special Rapporteur acknowledges that the law of occupation does not condition the legality of an occupation on a specific duration, but nonetheless proposes a normative framework consisting in four criteria to evaluate the legality of an occupation. Included within these is the principle that an occupation must be temporary and cannot extend in an indefinite or permanent manner.Footnote 58
This thesis is further supported by a small but relatively growing body of scholars, particularly following the publication of a seminal article by Orna Ben-Naftali, Aeyal Gross, and Keren Michaeli,Footnote 59 which later influenced the work of Michael Lynk.Footnote 60 In their article, the authors sought to identify a standard for operating a distinction between lawful and unlawful occupations, contending that any occupation disregarding the principle of temporariness is inherently unlawful.Footnote 61 Similarly, in a separate article, Orna Ben-Naftali considered that, by supplanting the temporary nature of the occupation with an indefinite duration, the Israeli occupation violates the principle of temporariness intrinsic to the regime of occupation, in that it undermines both its purpose and its essence.Footnote 62 More recently, Vito Todeschini asserted that a normative status can be attached to this temporariness, holding that an occupation becomes unlawful when its prolonged nature is exploited by the Occupying Power to appropriate the occupied territory and maintain its presence therein.Footnote 63
In other words, the illegality of occupation is premised on a legal construct whereby ‘significant breaches of the principles of belligerent occupation [including the temporary nature of occupation] invalidate the legality of the regime of occupation’.Footnote 64 Such an interpretation of the law of occupation, shared by the aforementioned states, posits that this regime encompasses essential principles that somehow condition the legality of an occupation under jus in bello, amongst which is the principle of temporariness. This reading fundamentally diverges from the traditional conception of international humanitarian law, as adopted by the second category of states.
3.2. The second category of states: International humanitarian law does not govern the legality of an occupation
Another group of states has maintained that international humanitarian law does not set out any criteria for determining the legality of an occupation, viewing it instead as a factual situation. Accordingly, the prolonged character of an occupation has no incidence on its legality under jus in bello. In that regard, Chile argued before the Court that the purpose of international humanitarian law is to limit the effects of armed conflicts, but not to govern their legal status:
Insofar as the purpose of international humanitarian law is to limit the effects of armed conflict and ensure a minimum of humanity in the conduct of States by protecting persons who are not or are no longer participating in the hostilities and restricting the means and methods of warfare, this branch of public international law is not concerned with the legal or illegal status of the use of force.
From the point of view of international humanitarian law therefore, there are no legal or illegal occupations. In this context, ‘occupation’ describes a factual situation in which the occupying power has obligations towards civilians.Footnote 65
Ireland held a similar position and pointed out that:
International humanitarian law does not classify a military occupation as either lawful or unlawful per se ⎯ rather it recognizes that military occupation may occur during the course of an armed conflict and it sets down rules to regulate the conduct of the occupying Power, in particular its armed forces.Footnote 66
The United States of America brought forth a similar argument, insisting on the purely factual nature of the occupation:
[T]he legal status of an occupation under international humanitarian law results from the fact of occupation alone. Although international humanitarian law imposes obligations on belligerents in their conduct of an occupation, it does not provide for the legal status of occupation to be lawful or unlawful.Footnote 67
Taking this line of reasoning further, Switzerland invoked the distinction between jus contra bellum and jus in bello to explicitly reject the argument that the passage of time affects in any manner the legality of an occupation under international humanitarian law:
Le droit de l’occupation et la légalité de l’occupation sont deux questions distinctes. … En tant que tel, le caractère prolongé d’une occupation n’a pas d’incidence sur sa conformité avec le ius in bello. Aucune disposition du droit humanitaire n’interdit une occupation prolongée.Footnote 68
Relying on the traditional approach to jus in bello, these states conceive of occupation as a factual situation governed by a regime whose primary purpose is not to determine its legality, but to provide a certain level of protection to the civilian population removed from the control of its legitimate sovereign.Footnote 69 As a result, they do not invoke a specific legal basis to substantiate their position. Rather, they rely on the absence of a basis in international humanitarian law refuting their assumption. It is in this sense that the Supreme Court of Israel held that the provisional nature of the occupation does not per se preclude long-term occupations.Footnote 70 This traditional conception of the law of occupation is also endorsed by the International Committee of the Red Cross, whose experts have reiterated that nothing in international humanitarian law prohibits the Occupying Power from maintaining an occupation for a prolonged period of time.Footnote 71 In their view, the protracted nature of the occupation rather affects the application of the rules of the law of occupation, for instance by allowing the Occupying Power to adopt ‘measures usually unnecessary during short-term occupation such as decisions related to the social and economic realm to maintain the daily life of the occupied population as normal as possible’ or by including the local population in the decision-making process.Footnote 72 It is the author’s view that the second approach should be preferred, not only because it aligns with the right to self-determination of the occupied people, but also because, as alluded to above, granting broader powers to the Occupying Power risks creating a slippery slope that may ultimately facilitate the consolidation of its presence in the occupied territory.
Finally, it should be noted that the International Court of Justice followed a similar approach to that of this second category of states in the Policies and Practices of Israel Opinion:
The fact that an occupation is prolonged does not in itself change its legal status under international humanitarian law. Although premised on the temporary character of the occupation, the law of occupation does not set temporal limits that would, as such, alter the legal status of the occupation. Instead, the legality of the occupying Power’s presence in the occupied territory must be assessed in light of other rules.Footnote 73
In sum, under this second reading of the law of occupation, the duration of an occupation holds little relevance to assessing its legality under international humanitarian law. This interpretation stands in fundamental contrast to the first. The following section now demonstrates that this conceptual divergence arises from differing approaches to international humanitarian law.
4. The illegality of the occupation under jus in bello by virtue of its prolonged character: De lege ferenda?
The diverging interpretations regarding whether an occupation can become, or even be from the outset, unlawful under international humanitarian law appear to be symptomatic of a different conception of what this set of rules seeks to achieve. The first category of states seems to refer to the law as it should be, whereas the second follows a more positivist approach, referring to the rules as they are. Algeria itself recognised that, de lege lata, international humanitarian law does not prescribe a specific date at which the occupation should end, nor does international practice and international law specify a precise moment after which an occupation becomes illegal.Footnote 74 Thus, it comes as no surprise that no court has ruled that an occupation could become unlawful in jus in bello solely on the basis of its duration, the 2024 Advisory Opinion on the Policies and Practices of Israel being no exception to that.Footnote 75 The first category of states therefore relies upon a legal construct that is not recognized in positive law. They refer to the work of experts and scholars who propose standards for assessing the lawfulness of an occupation. What this first category presents as a settled principle seems to be no more than a suggestion de lege ferenda emerging from academic discourse.
The absence of a robust legal basis in international humanitarian law supporting that a prolonged occupation can become illegal under jus in bello likely accounts for the tendency of certain proponents of this position to shift their reasoning towards jus contra bellum considerations. Namibia offers a compelling illustration of this, stating that
[f]irst, in so far as the law of occupation envisages any belligerent occupation as a temporary measure, immediately following military operations, Israel’s prolonged – or permanent – occupation breaches the law of occupation. It is a de facto annexation in all but name.Footnote 76
In its written submissions, Namibia in fact addressed the illegality of the occupation primarily through a jus contra bellum analysis.Footnote 77 This observation also extends to the views adopted by experts. In his aforementioned report, Michael Lynk, while admitting that the law of occupation does not impose a specific limit on the lawful duration of an occupation, briefly touched upon the temporary nature of occupation. He noted that ‘the longer the occupation, the greater the justification that the occupying power must satisfy to defend its continuing presence’.Footnote 78 However, the jus in bello framework does not provide any basis for an Occupying Power to justify its continued presence; this too is a question falling under the scope of jus contra bellum. Similarly, Vito Todeschini, quoted above, argues that recognizing a normative dimension to the temporality of the occupation in international humanitarian law enables the prevention of its prolongation and permits to conclude to its illegal character in the event that the Occupying Power demonstrates an intention to establish its permanent presence:
Such a test has the merit of providing a purposive interpretation that advances one of the main goals of the law of occupation: preventing an occupation from becoming permanent, which would also potentially amount to a breach of the jus ad bellum prohibition against the acquisition of territory through the use of force – regardless of whether the use of force was lawful or not.Footnote 79
If the core issue is indeed the occupation’s apparent permanence, then such considerations fall under the jus contra bellum regime, which is both sufficient and appropriate to assess the legality of the Israeli occupation arising from its indefinite and prolonged nature. Even assuming, for the sake of the argument, that the use of force in 1967 was lawful under Israel’s right to self-defence, how could it remain necessary and proportionate if it is characterized by acts of annexation? The same goes for the distinction between jus ad occupation – the rules governing the existence and legality of an occupation – and jus in occupation – the rules governing the conduct of the occupation.Footnote 80 If an occupation violates one of the fundamental principles of the law of occupation, such as its temporary nature, some scholars argued that it becomes illegal under jus ad occupation.Footnote 81 However, since occupation stems from and is maintained through the use of force, what is jus ad occupation if not another expression of jus ad bellum? This discussion reveals a tendency, over time, to ascribe to international humanitarian law a role that fundamentally belongs to jus contra bellum, thereby diverting the analysis away from the appropriate legal framework.
This raises the issue of the underlying purpose of occupation law, a question central to the reasoning of Michael Lynk, whose report, as already stated, influenced the positions of states belonging to the first category. In a blog following its 2017 report, he noted that the relevant legal instruments of jus in bello are silent on the question of the lawfulness of occupation. However, the former Special Rapporteur argued that ‘a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant’.Footnote 82 This reasoning prompts a fundamental question: what is the purpose of occupation law? The travaux préparatoires provide no indication that the drafters of these instruments considered the presence of the Occupying Power to be unlawful if the latter expressed sovereign intentions. The drafting process of Article 47 of the Fourth Geneva Convention is particularly illuminating in this regard. As the Second World War saw numerous instances of total or partial annexation of occupied territories, it was crucial for the drafters to prevent such occurrences in the future. Indeed, once annexation of the territory completed, the population initially occupied was removed from the scope of application ratione personae of the law of occupation, as they were no longer ‘in the hands of an … Occupying Power of which they are not nationals’,Footnote 83 thereby becoming at the mercy of the new sovereign and its laws.Footnote 84 Article 47 was therefore designed to ensure that, if the Occupying Power demonstrates a desire to establish its presence on a permanent basis by annexationist measures, protected persons would not lose the protections guaranteed by the Fourth Geneva Convention.Footnote 85 Although the drafters were acutely aware of the possibility that an Occupying Power might behave as a sovereign, they did not suggest that its actions would somehow render its presence unlawful. In fact, the reference in Article 47 (then Article 43) to annexation had been criticized by the Monegasque delegate on the grounds that it ‘might throw doubt on the legality of the occupation’.Footnote 86 However, this concern did not prevail, and the reference to annexation remains in the final version of Article 47, without implying in any manner that the possibility of there being an annexation would affect the lawfulness of the Occupying Power’s presence under occupation law. In short, the spirit of Article 47 was simply to ensure that the civilian population continues to benefit from the protection afforded by the Fourth Geneva Convention, even in cases where the Occupying Power exhibits annexationist tendencies. In other words, the legality of the occupation itself, is not affected by these intentions – at least under international humanitarian law.
Similarly, the potential illegality of the prolonged presence of an Occupying Power is not to be found in the travaux préparatoires of Article 6(3) of the Fourth Geneva Convention and Article 3(b) of the First Additional Protocol, both of which acknowledge that occupation may persist long after the cessation of hostilities. The drafting history of Article 3(b) does not indicate that the legal status of the occupation was at stake. By the time this provision was being negotiated, the Israeli occupation had already lasted for a decade, yet the drafters did not frame Article 3(b) to impose a time limit on occupations, require the gradual return of authority to the sovereign, or even explicitly enshrine the principle of temporariness. Instead, the authors prioritized the principle of effectiveness and upheld the view of occupation as a purely factual matter. Their aim was to ensure that the legal framework designed for short-term occupations would remain applicable to prolonged ones. This approach indicates that the law of occupation, which has evolved from focusing on the rights of the displaced sovereign to prioritizing the general welfare of the occupied population,Footnote 87 is not so concerned with the Occupying Power’s intentions. While it is true that the temporary nature of the occupation is a fundamental principle and that the law of occupation recognizes the possibility of the Occupying Power’s intention to consolidate its presence on a more permanent basis, this legal regime does not address this risk by altering the legal status of the occupation. Instead, it does so through an imposition of limits to the Occupying Power’s conduct, thereby mitigating the consequences of prolonged occupation through restrictions on the behaviour of the occupying authority rather than through changes to its legal character.
5. The protracted character of the occupation: An abuse of the law of occupation rather than a violation of it?
This discussion, along with the divergent opinions it generates, highlights the unease caused by the unprecedented duration of the Israeli occupation. The central issue underlying this debate is clear: the law of occupation was not designed to govern a situation of prolonged occupation. Does this necessarily imply, however, that the law of occupation must be considered as violated? Or is there a more appropriate legal concept to depict such situations? A closer examination of those states’ statements arguing that the indefinite duration of the occupation renders it unlawful under international humanitarian law suggests that the concern is not so much a direct violation of this body of law, but rather its (ab)use for purposes other than those for which the law of occupation was originally devised. For example, Algeria argued before the Court that Israel is misusing and abusing the concept of occupation in the Palestinian territories, pointing to the ‘violent contraste qui existe entre les apparences théoriques – qui viennent d’être esquissées à très grands traits uniquement – [the general principles of the law of occupation] et la réalité’.Footnote 88 In its written statement, Algeria had already considered that Israel ‘is abusing the limited authority that an occupying Power may have under international humanitarian law’.Footnote 89 Similarly, in 2004, Belize already warned against what it considered to be a ‘statut d’occupation militaire détourné et bafoué’.Footnote 90 These states are essentially highlighting Israel’s manipulation of its status as an Occupying Power, as well as its exploitation of certain prerogatives granted under occupation law, to further its own interests. Pakistan was even more explicit in highlighting this issue:
In the case of the Occupied Palestinian Territory, the organs of the United Nations have repeatedly found that Israel has abused its liberties as an occupying Power by imposing its policies and practices of prolonged occupation, not for these limited purposes but to serve its own interests, including the ultimate goal of annexing the occupied territory.Footnote 91
In the same vein, Syria contended that Israel is using the prolonged occupation ‘as an excuse to pursue its illegal goal of annexing the occupied territories’Footnote 92 and Bolivia argued that ‘Israel has used its protracted occupation as a pretext to pursue its illegal objective of annexing the Occupied Palestinian Territories’.Footnote 93 The League of Arab States likewise insisted on the ‘prolonged length of the occupation, and its abusive nature’.Footnote 94 Lastly, Palestine asserted that the Israeli occupation ‘has served as a cover for Israel’s colonial designs: the acquisition of Palestinian territory by force’.Footnote 95 In its 2024 Advisory Opinion, the International Court of Justice itself echoed these concerns and concluded that, by asserting a permanent control over the occupied territory, Israel engages in a ‘sustained abuse … of its position as an occupying Power’.Footnote 96
These excerpts reflect a common observation: Israel is taking advantage of and abusing its status as an Occupying Power, and the prerogatives attached to it, to serve its own interests. In essence, these interests are fundamentally at odds with those that the law of occupation seeks to safeguard – conduct of this nature being precisely what the concepts of abuse of rights and of détournement de pouvoir are designed to address, as will be further demonstrated.
5.1. Détournement de pouvoir as a form of abuse of rights
Abuse of rights refers to the exercise ‘par un État d’un droit, d’un pouvoir ou d’une compétence d’une manière ou dans un but qui ne correspondent pas aux finalités de ce droit, de ce pouvoir ou de cette compétence, par exemple dans le but d’échapper à une obligation internationale ou d’obtenir un avantage indu’.Footnote 97 When such abuse results from the pursuit of an illegitimate aim, it falls under the concept of détournement de pouvoir.Footnote 98 This concept, derived from the administrative law in various national systems, can be defined as ‘the exercise by a competent authority of a power which it possesses, but which it exercises for a purpose other than that for which it was entrusted to it’.Footnote 99 Although some argue that a détournement de pouvoir can exist independently of the principle of abuse of rights,Footnote 100 the dominant view treats it as one of the various forms an abuse of rights might take.Footnote 101 In this specific sense, abuse of rights functions as a ‘norme servant à sanctionner la téléologie d’autres normes’, preserving ‘le but au regard duquel ces normes ont été créées contre les détournements qui le menacent’.Footnote 102 This interpretation aligns closely with the concerns raised by states in the aforementioned excerpts.
The relevance of the use of such concepts lies in their status as general principles of law recognized by ‘civilized nations’ within the meaning of Article 38(1)(c) of the Statute of the International Court of Justice.Footnote 103 Such principles are derived from national legal systems and transposable to the international legal system.Footnote 104 As noted by the International Law Commission,Footnote 105 these principles are particularly relevant in addressing situations where no specific treaty rule or customary law is available to govern the issue at hand.Footnote 106 In this regard, the absence of an international humanitarian law rule prohibiting the prolongation of occupation is precisely the argument brought forth by states claiming that an occupation cannot become illegal under jus in bello.Footnote 107 In practice, however, courts are reluctant to invoke general principles of international law as decisive factors enabling them to settle a legal question.Footnote 108 Nonetheless, although general principles of law do not usually constitute the determining ground upon which a judge resolves a dispute, they appear in various judicial decisions, which recognize their capacity to produce legal effects in international law.Footnote 109 In that sense, ‘[d]espite doctrinal uncertainties, international courts and tribunals have generally recognized general principles of law as an autonomous source of international law and have applied it in practice’.Footnote 110
That said, it must be acknowledged that some reject the very existence of the concept of abuse of rights in international law,Footnote 111 or at least criticize its application.Footnote 112 This scepticism can largely be accounted for by the scarcity of its use by international courts.Footnote 113 Marie Lemey however offers a more nuanced view, underscoring a renewed interest in the concept of abuse of rights in various types of litigation, including interstate litigation before the International Court of Justice.Footnote 114 While Lemey acknowledges that litigants make more frequent use of the concept than judges do, she attributes this to ‘l’exigence – ou la précaution – des juridictions internationales qui, tout en reconnaissant l’existence de la notion, ont souvent souligné le fait que celle-ci ne pourrait être consacrée que dans les ‘‘les circonstances les plus exceptionnelles’ ou si des éléments ‘l’attestent clairement”’.Footnote 115 Furthermore, she concedes that the notion of abuse of rights carries a somewhat pejorative connotation, which may explain courts’ reluctancy to mobilize it.Footnote 116 Yet, in spite of these challenges, it is the author’s view that this principle remains a relevant tool, as a general principle of international law, that might fill in the gaps left by the jus in bello framework when discussing the issue of prolonged occupations. Indeed, the limited recourse to this principle by international courts, including the International Court of Justice, does not suggest that the principle should be confined exclusively to domestic legal systems, nor that the Court refrains from attributing legal significance to the notion of abuse of rights – on the contrary. Recently, in addressing Ukraine’s argument that Russia was abusing and misusing the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the rights it confers to justify its military actions in certain Ukrainian territories, the Court referred to the concept of abuse of rights and recognized that it may carry legal effects. The Court contended that when a treaty is invoked abusively or is deliberately interpreted incorrectly, ‘such an abusive invocation will result in the dismissal of the arguments based thereon’.Footnote 117 While the Court ultimately found that such an abusive use of the Convention by Russia had not been established at this stage, it nevertheless recognized that the concept of abuse of rights may give rise to legal consequences under international law.
When it comes to the notion of détournement de pouvoir, the concept is more commonly invoked in international public service litigation, where it has found solid grounding, particularly through its roots in national legal systems.Footnote 118 However, its application is not confined to this context and may extend to other areas, such as public international law. For example, the Permanent Court of International Justice implicitly referred to this concept in the Free Zones of Upper Savoy and the District of Gex case.Footnote 119 In this case, following the Congress of Vienna, France was obliged to maintain certain border areas with Switzerland as free zones.Footnote 120 For the rest, as the Court acknowledged, France retained sovereignty and therefore free to impose a control cordon.Footnote 121 However, the Court imposed limits on this freedom in the following terms:
A reservation must be made as regards the case of abuses of a right, since it is certain that France must not evade the obligation to maintain the zones by erecting a customs barrier under the guise of a control cordon.Footnote 122
According to Robert Kolb, this case is an instance of the International Court of Justice aiming at preventing a détournement de pouvoir as France could not employ control cordons to achieve a prohibited end.Footnote 123
Moreover, although the notion of détournement de pouvoir is usually discussed in areas such as EU law,Footnote 124 the law of the sea,Footnote 125 and the law of international trade,Footnote 126 it raises the question of whether it may also be relevant to the law of occupation. As this concept originates from the control exercised by national organs over acts taken by administrative authorities,Footnote 127 some authors have argued that it should be confined to acts of international organizations as they represent the equivalent of national administrations at the international level.Footnote 128 However, the author posits that the same reasoning applies to Occupying Powers in occupied territories – which are described as temporary administrators.Footnote 129 The analogy with national administrative authorities is thus appropriate. Some authors have taken this approach with respect to specific measures enacted by the Occupying Power, distinguishing between non-compliance with a rule and its détournement. For example, regarding the extensive interpretation of Article 43 of the Hague Regulations by the German occupier during the First World War,Footnote 130 Charles De Visscher said:
L’abus n’existe pas seulement quand, édictant des mesures qui excèdent sa compétence, l’occupant dépasse les limites objectives de ses attributions provisoires; il se présente également lorsque l’occupant use de ses pouvoirs dans un but et pour des motifs étrangers à l’objet véritable de sa mission en pays occupé. Tel est le cas lorsque, sous le couvert de mesures d’administration, l’occupant poursuit des fins politiques … Il y a là une limitation d’ordre subjectif qui rappelle la distinction établie par la juridiction administrative française entre l’excès de pouvoirs et le détournement de pouvoirs et qui offre dans les circonstances actuelles un intérêt particulier.Footnote 131
Therefore, if the Occupying Power uses its prerogatives to further interests other than those conferred upon it by the law of occupation, this constitutes a détournement de pouvoir, rather than a mere excess of power. A parallel can be drawn with Israel’s requisitions of private Palestinian property, which have been justified by the Supreme Court of Israel on the basis of the powers allocated to the Occupying Power under the Hague Regulations. For instance, in the Beit El-Toubas case, the Israeli Supreme Court approved the requisition of private Palestinian property in the West Bank by Israeli authorities for the purpose of constructing civilian settlements. This justification was framed in terms of purportedly necessary and urgent military requirements, as the Court referred to Articles 43 and 52 of the Hague Regulations.Footnote 132 In such a case, it is evident that a power granted by the law of occupation has been misused by its holder to serve private interests.
Beyond isolated measures, and as reflected in the excerpts above, one could argue that Israel is abusing the law of occupation in a manner that diverts it from its objectives and its essence – namely, the temporary administration of the territory to ensure the well-being of the occupied population and to maintain the status quo. Under this interpretation, the occupation would be no more than a façade. This assertion is further substantiated by Israel’s refusal to acknowledge its status as an Occupying Power, whilst simultaneously taking advantage of the powers deriving from this status.Footnote 133 Consequently, in such a situation where the law of occupation is instrumentalized to achieve unlawful means – an assessment that is inherently context-dependent and specific to each situation – it could be considered that the Occupying Power not only misuses the powers conferred upon it as an Occupying Power under international humanitarian law but also abuses its position as an Occupying Power as such, as noted by the International Court of Justice regarding Israel. If such an approach were to be adopted, it would still be necessary to ascertain the added value of such qualification in comparison to a finding of illegality.
5.2. The consequences of the abuse of rights on the legality of the acts taken by Israel in the occupied territory
Claiming that Israel violates the law of occupation by maintaining its presence indefinitely allows states of the first category to add to their analysis another basis for declaring the occupation unlawful and demanding its immediate cessation. In particular, several states have drawn a parallel between the situation in Palestine and that of Namibia under South Africa’s mandate. By way of reminder, in its Advisory Opinion on the Continued Presence of South Africa in Namibia, the International Court of Justice declared South Africa’s continued presence in Namibia unlawful, demanded its cessation, and established that: ‘[o]ne of the fundamental principles governing the international relationship thus established is that a party which disowns or does not fulfil its own obligations cannot be recognized as retaining the rights which it claims to derive from the relationship’.Footnote 134 The Court relied, inter alia, on the United Nations General Assembly’s Resolution 2145 (XXI), which declared that South Africa had failed to meet its obligations regarding the administration of the territory, thereby terminating its mandate.Footnote 135 In addition, the Security Council Resolution 276 deemed the continued presence of South Africa in Namibia illegal and called upon third states to act accordingly.Footnote 136 By analogy, Michael Lynk, in his aforementioned report, identified legal principles from this advisory opinion that he deemed relevant to the Palestinian case, principles which Bangladesh considered to be applicable mutatis mutandis to the Israeli occupation:Footnote 137
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i) The breach of the mandatory’s fundamental obligations under international law can render its continuing presence in the mandate territory illegal.;
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ii) The deliberate and persistent violation of a party’s obligations destroys the very object and purpose of the relationship or vested power, and the party cannot thereby claim any of the rights which derive from that relationship.Footnote 138
Therefore, a state’s breach of its fundamental obligations governing a relationship – in this case the mandate – would have a bearing at two levels: on the one hand, it affects the legality of its very presence (i) and, on the other, it influences the state’s ability to avail itself of the rights attached to that relationship (ii).
(i) Applying the first principle to the Israeli occupation would mean that Israel’s failure to respect the principle of temporariness and its concomitant adoption of measures seeking to ensure its permanent presence violate fundamental principles and obligations underlying the law of occupation. As a result, its presence should be regarded as illegal.Footnote 139 This comparison with the situation in Namibia does, however, call for caution concerning the legality of Israel’s presence. Indeed, whereas occupation is a factual situation, the mandate over Namibia arose from a treaty relationship conferring a title to South Africa, the termination of which could be assessed in accordance with Article 60 of the 1969 Vienna Convention on the Law of Treaties – specifically addressing the object and purpose of the treaty. This was one of the bases which enabled the Court to analyse the powers of the General Assembly, given that the French and South African governments had argued that the Assembly had overstepped its authority by adopting Resolution 2145 (XXI). The Court indeed noted that
it is appropriate to have regard to the general principles of international law regulating termination of a treaty relationship on account of breach. For even if the mandate is viewed as having the character of an institution, as is maintained, it depends on those international agreements which created the system and regulated its application. As the Court indicated in 1962 ‘this Mandate, like practically al1 other similar Mandates’ was ‘a special type of instrument composite in nature and instituting a novel international régime. It incorporates a definite agreement …’ The Court stated conclusively in that Judgment that the Mandate ‘… in fact and in law, is an international agreement having the character of a treaty or convention’.Footnote 140
The General Assembly’s ability to declare the termination of the mandate was predicated on fundamental violations of international law by South Africa, which, according to the General Assembly, amounted to a denunciation of the mandate, a denunciation which was part of a conventional framework pre-established in law and conferring a title to South Africa. This does not exist, in jus in bello, concerning the status of the occupation. There cannot be a comparable denunciation of the status of the Occupying Power. Consequently, this initial finding from the opinion on the legality of South Africa’s presence holds limited relevance in the present case.
(ii) Turning to the second principle, the comparison seems more pertinent. Given that occupation law governs the Occupying Power’s conduct and confers certain powers upon it, a failure to comply with the principles underlying this regime should have implications regarding these prerogatives. This is where the concepts of abuse of rights and that of détournement de pouvoir become relevant, as they align with the criticism voiced by many governments and scholars: Israel acts in a manner inconsistent with the spirit of the law of occupation and uses the concept of occupation, as well as the prerogatives derived from this framework, to realize its annexationist ambitions. In other words, given that the Israeli authorities are adopting measures in the occupied territory that serve Israel’s own interests and advance territorial acquisition, one could conclude that Israel is not acting as an Occupying Power and cannot, as a result, invoke occupation law as a stamp of legality to justify actions that would otherwise be considered as illegal. In 2004, although it did not explicitly refer to abuse of rights, Palestine provided a similar observation:
Before turning to these issues, a proviso is necessary. Israel’s rights in relation to the construction and operation of the Wall can be no more extensive than those of an Occupying Power. There is, indeed, a question whether Israel can claim even those rights. The Geneva Conventions plainly intended that occupations should be temporary, and the generally-accepted view is that occupations should cease once hostilities have ceased, or very soon thereafter. It was never envisaged that occupation should be a long-term situation or that States should be able to claim the right to remain as Occupying Powers over the long term.Footnote 141
To consider that Israel is abusing the law of occupation and misusing the powers derived from it would, therefore, have significant implications for the legality of its acts – without necessarily rendering its presence illegal under jus in bello and regardless of the legality of its presence under jus contra bellum. Insofar as Israel employs the law of occupation as a cover to pursue objectives incompatible with its underlying purpose, this approach suggests that Israel cannot rely on the prerogatives and rights conferred by this legal regime to justify specific acts that would otherwise contravene other branches of international law. For example, it would no longer be able to invoke the law of occupation, and the derogations related to military necessities and security it contains to justify measures such as the requisition of private Palestinian property, prolonged administrative detentions of Palestinians, or the exploitation of Palestinian natural resources. While such acts may, in isolation, be consistent with the law of occupation, the recognition of the abuse of rights – for instance when its provisions are instrumentalized to facilitate de facto annexation – would preclude reliance on the corresponding derogations when assessing other regimes of international law. Consequently, these acts may still constitute violations of international human rights law or the right to self-determination, even if the law of occupation itself is not formally breached. This reasoning is consistent with that of the International Court of Justice in the aforementioned Ukraine v. Russian Federation case, albeit in very different contexts, where the Court held that ‘while such an abusive invocation [of the 1948 Genocide Convention by Russia] will result in the dismissal of the arguments based thereon, it does not follow that, by itself, it constitutes a breach of the treaty’.Footnote 142
Discussing prolonged occupations, Georges Abi-Saab and Marcelo Cohen also argued that in most circumstances the Occupying Power cannot invoke military necessity to justify, for instance, the restriction of the local population’s rights or the exploitation of natural resources.Footnote 143 While such a conclusion aligns with that of this contribution, it is the result of a different line of reasoning adopted by the authors. The latter indeed contend that as the occupation ceased to be temporary, the rules of military occupation cease to apply as well and
the legal order must shift toward other branches of international law – primarily human rights law and the principle of self-determination – which are better equipped to address and constrain the enduring realities of power and controlFootnote 144 .
The author of the present contribution does not, however, go as far as to exclude the applicability of the law of occupation altogether, as there appears to be neither a rule of international law nor consistent practice supporting such an approach – as becomes apparent upon examination of the States’ submissions to the Court in the context of the Policies and Practices of Israel Advisory Opinion. What is more, the author maintains that caution is warranted when asserting that international human rights law should be regarded as a substitute for the law of occupation. Three main arguments support this position. First, international human rights law is not necessarily better suited to serve the interests of the occupied population. As Marco Sassòli has underscored, the substitution of occupation law with human rights standards may even be ‘tantamount to an annexation’.Footnote 145 For instance, under international humanitarian law, the local population must be tried by military courts, and not by the civilian courts of the Occupying Power. This derogation from the human rights law standard is said to prevent annexation by prohibiting the extension of the Occupying Power’s domestic judicial system to the occupied territory.Footnote 146 Moreover, under certain circumstances, international human rights law might legitimize the violation of the rights of the local population. Aeyal Gross discussed this a priori counterintuitive observation in depth through an analysis of the decisions of Israel’s High Court of Justice and demonstrates that, due to the abstract and universal character characterizing human rights law,
introducing human rights analysis into cases from the OPT did not generate a jurisprudence granting better protection to people under occupation. Rather, it legitimized the violation of their rights invoking the human rights of Israelis, be they settlers or Israeli citizens in general.Footnote 147
Second, given that international human rights law is generally more demanding than law of occupation, relying exclusively on the former to assess the conduct of the Occupying Power may produce unintended consequences. In particular, compliance with the higher standards of human rights law may compel the Occupying Power to adopt a more proactive role in the administration of the occupied territory – potentially resulting in a level of involvement that exceeds what would be permissible under the law of occupation. Third, and perhaps more symbolically, although it is understandable that the law of occupation, and international humanitarian law in general, is at times perceived as legitimizing violations of other norms of international law, its applicability has the merit of indicating that the situation at hand is of an exceptional and provisional nature. This crucial dimension is absent when the legal framework is framed solely in terms of international human rights law. The very invocation of the law of occupation inevitably raises red flags and invites heightened scrutiny, as it serves as a constant legal reminder that the authority in question does not possess sovereign title over the territory it administers. In light of the foregoing, it is unsurprising that states and international organizations, far from considering that the law of occupation ceased to apply, have on the contrary repeatedly invoked this body of law before the International Court of Justice. Therefore, while the author concurs with the views expressed by Georges Abi-Saab and Marcelo Cohen according to which the Occupying Power cannot rely military necessity to justify a range of measures,Footnote 148 it is nonetheless maintained that the law of occupation remains applicable. Moreover, it is here contended that, in such cases of prolonged occupation, it is possible for an Occupying Power to act within the bounds of this legal framework while simultaneously breaching obligations arising under other branches of international law.
One could however argue that such consequences already result from finding illegality of occupation under jus contra bellum. In that sense, the League of Arab States held before the Court that
A fundamental consequence of the existential illegality of the occupation is that, necessarily, everything Israel does in Gaza and the West Bank (including East Jerusalem) lacks a valid international legal basis, and is an illegal exercise of authority, not just those things which violate the law regulating the conduct of the occupation. Just as the existence of the conduct-regulatory framework does not provide a basis for Israel to maintain the occupation, so too, if the occupation is maintained by Israel, as it is currently, the fact that the substantive norms of this regulatory framework do then entitle and indeed require Israel to do certain things does not alter the more fundamental position that Israel lacks any legal authority to do anything, and whatever it therefore does is illegal, even if it is compliant with and pursuant to the rules of the conduct-regulatory framework. …
Thus, for Israel, the rules of international humanitarian law, including occupation law, ultimately offer no legal cover for anything it does during the occupation, since there is a more fundamental set of rules that it is still violating simply by being there [jus contra bellum], even if it is international humanitarian law compliant.Footnote 149
The League of Arab States bases such an interpretation on paragraph 70 of the Human Rights Committee’s General Comment No. 36 according to which a state committing an act of aggression ipso facto violates the right to life as enshrined in Article 6 of the 1966 International Covenant on Civil and Political Rights.Footnote 150 In its written statement, the League of Arab States thus transposes this interpretation to all rights compromised by the mere existence of the occupation, and considers that any action taken by Israel within that territory is necessarily unlawful given that Israel’s presence in the Palestinian territory results from an unlawful use of force – even if, and regardless of, whether its conduct is compliant with the law of occupation. Therefore, under such a reading, too, the law of occupation could no longer be used to justify what would otherwise be illegal. This position finds support in scholarly writings. For instance, Christopher Greenwood held from an early stage that:
[t]he equal application of the laws of war does not of course mean that the illegality of the aggressor’s resort to force produces no consequences. Since the aggressor’s resort to force is unlawful, it incurs international responsibility for all the consequences of its use of force. It therefore has a duty to compensate not only those who have suffered loss as a result of the violations of the laws of war committed by its forces but also those injured by acts of the same forces which were not contrary to that law. In the latter case, the illegality which gives rise to the responsibility lies in the original wrongful resort to force. Moreover, since opposition to illegal resort to force is an entirely foreseeable consequence of that unlawful act the aggressor can also be held responsible for damage caused by lawful acts of war on the part of its opponents.Footnote 151
In this regard, one may point to the 1990–1991 Gulf War as a form of precedent supporting the approach whereby an aggressor state may be required to provide compensation for damage caused by the actions of its armed forces, even when such actions are in conformity with international humanitarian law.Footnote 152 In casu, Iraq was held responsible for losses, damages, and injuries, including those resulting from conduct that did not constitute a violation of international humanitarian law. As per Paragraph 16 of Resolution 687 adopted by the United Nations Security Council on 3 April 1991, Iraq was ‘liable under international law for any direct loss, damage … or injury to foreign Governments, nationals and corporations as a result of its unlawful invasion and occupation of Kuwait’.Footnote 153 The status of this specific case as a precedent is however sometimes contested, as it remains unclear whether such an extensive approach to responsibility stems from a general rule of international law, or whether it constitutes a sui generis instance based primarily on the Security Council resolution itself, rather than on a general rule of international law.Footnote 154 What is more, it must be recalled that the interpretation of the interaction between jus contra bellum and jus in bello as reflected in the General Comment No. 36, which postdates the Gulf War precedent, is far from being unanimously accepted, as the above-mentioned Paragraph 70 is quite controversial.Footnote 155 Several states have indeed criticized, or even expressly rejected, this extract from the General Comment No. 36 for a variety of reasons.Footnote 156 For instance, Germany considered that ‘a clear distinction between the different legal regimes should be maintained in order to allow for an adequate attribution of responsibilities in international law’.Footnote 157 There is no need here to dwell on whether Paragraph 70 erodes the traditionally recognized independence between jus in bello and jus contra bellum; it is sufficient to note, for the purposes of our analysis, that not all states have accepted the interpretation provided by the Human Rights Committee.Footnote 158
Furthermore, it is true that if, eventually, one were to adopt the interpretation shared by the League of Arab States and the Human Rights Committee, the legal consequences would be similar to those resulting from the aforementioned reasoning based on the notion of abuse of rights. However, it must first be acknowledged that this presupposes a consensus regarding the status of the occupying state as an aggressor – an issue that is often subject to dispute. Furthermore, such an interpretation relates to, and sanctions, a conduct that is not the one denounced by states and international organizations in the excerpts quoted above. What the latter highlighted was not so much the fact that Israel had no right to be present in Gaza and the West Bank – the emphasis here is on an element external to international humanitarian law – but rather that it was diverting the regime of the law of occupation from its essence and abusing its position as occupying power – the emphasis here is on an element internal to the international humanitarian law. It is the failure to respect the esprit of the law of occupation that is singled out by these states, and it is the notion of abuse of rights that better grasp this peculiar aspect of the Israeli occupation, regardless of the lawfulness of occupation under jus contra bellum, and ultimately, even if it were to be considered lawful under this body of law. As the purpose of this contribution was precisely to grasp the legal reasoning underlying states’ analysis of the lawfulness of the occupation under jus in bello in light of the unprecedented duration of the Israeli occupation, it was necessarily required to remain within the jus in bello framework in order to more accurately reflect the allegations made by states.
6. Conclusion
This article has illustrated a growing tendency, at least among states, to invoke the protracted character of the occupation of Palestine by Israel to declare it illegal under jus in bello. This interpretation has found its way to the Peace Palace, where several states have conferred a normative aspect to the phenomenon of occupation under international humanitarian law. This marks a departure from the traditional conception of occupation as a purely factual situation and blurs the distinction between jus in bello and jus contra bellum. The rationale behind this approach can be summarized as follows: since the temporary nature of occupation constitutes one of the fundamental principles underlying and shaping the rules of the law of occupation, a prolonged occupation fundamentally undermines the essence of that law and cannot be deemed compliant with the established regime. However, an analysis of the states’ submissions simultaneously reveals that this is far from a unanimous interpretation. The International Court of Justice itself has not adopted this view: international humanitarian law does not prohibit occupation from being prolonged, even indefinitely.
This article could have discussed in greater depth the persuasive power of various approaches regarding this debate. The author instead sought to reconcile the views of proponents of a broader interpretation of the aims of international humanitarian law and of those who adopt a positivist reading of the law that nevertheless addresses the abusive use of the law of occupation to legitimize violations of other regimes of international law. The second part of this article therefore focused on an alternative path based on a point of convergence among these different interpretations and on the specific behaviour that is denounced by states: Israel is abusing its position as an Occupying Power to further its own interests, which stands in stark contrast to the fundamental purposes of occupation law. In such situations where an Occupying Power (ab)uses its status to pursue objectives that fundamentally contradict the purpose and legal rationale of the law of occupation – such as maintaining an indefinite presence with the intent of effecting a de facto annexation – framing the issue as an abuse of the law of occupation could prevent occupation law from serving as a justification for acts that would otherwise be classified as unlawful under international law. As a general principle of law, the notion of abuse of rights is apprehended here as a tool available to international actors to address the absence of a specific prohibition on the prolongation of occupation under the law of occupation, while allowing for consideration of the essence of this legal regime and the rationale behind the conferral of certain powers upon an Occupying Power. This approach suggests that, while acting in conformity with international humanitarian law, the Occupying Power might still be held accountable for, notably, violations of international human rights law and the right to self-determination. In practical terms, this implies for instance that while the Occupying Power, acting as usufructuary of public immovable property, may not violate Article 55 of the Hague Regulations per se, it cannot rely on this provision to claim compliance with the right to self-determination. Similarly, while the detention of the local population for imperative security reasons may not contravene Article 78 of the Fourth Geneva Convention, such measures may nonetheless constitute arbitrary detention under international human rights law. Occupying a territory indefinitely would then become a much less appealing endeavour, even though, under this approach, the prolonged character of the occupation would not, in itself, render it unlawful under jus in bello.
As a final observation, while acknowledging that the law is not static and may, in certain circumstances, evolve, it is submitted here that departing from the positivist interpretation of international humanitarian law in an effort to transform this body of rules into a framework capable of assessing the legality of the prolonged occupation at issue is, in any event, unnecessary. Other – more appropriate – legal regimes, namely jus contra bellum and the right to self-determination already regulate such matters, as the International Court of Justice itself acknowledged in Paragraph 251 of its 2024 Advisory Opinion:
The Court considers that the rules and principles of general international law and of the Charter of the United Nations on the use of force in foreign territory (jus ad bellum) have to be distinguished from the rules and principles that apply to the conduct of the occupying Power under international humanitarian law (jus in bello) and international human rights law. The former rules determine the legality of the continued presence of the occupying Power in the occupied territory; while the latter continue to apply to the occupying Power, regardless of the legality or illegality of its presence. It is the former category of rules and principles regarding the use of force, together with the right of peoples to self-determination, that the Court considers to be applicable to its reply to the first part of question (b) of the request for an advisory opinion by the General Assembly.Footnote 159
An excessive focus on international humanitarian law and attempts to derive from this regime normative principles that exceed the original intent of the drafters of the relevant legal instruments, risks diverting the legal analysis from the legal frameworks that are, de lege lata, the most pertinent to apprehend the matter at hand, that is the legality of the occupation. One should not be misled into doubting the value of international humanitarian law by acknowledging that this body of law was not designed to address this specific issue. This does not amount to an admission of its irrelevance. On the contrary, it is precisely in order to preserve its relevance, normative coherence and effectiveness that it must not be burdened with responsibilities it was never intended to bear.
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