Ata R. Hindi ~ ‘Unlawful Occupations? Assessing the Legality of Occupations, including for Serious Breaches of Peremptory Norms’

(2023) 4 TWAIL Review 1-35
ISSN 2563-6693
Published under a Creative Commons licence

In light of the United Nations (UN) General Assembly request on the legality/illegality of Israel’s occupation of the occupied Palestinian territories (oPt)/State of Palestine and the existence of several occupations elsewhere that are or will be prolonged, this contribution looks to address the legality of occupations under the rules of state responsibility, including for serious breaches of peremptory norms (particularly the prohibitions on annexation, denial of the right to self-determination, and racial discrimination and apartheid). The article engages the discourse of various UN mechanisms in that regard, as well as the scholarly discourse. It stresses the importance of the separation and co-applicability of both IHL (jus in bello) and the law on the use of force (jus ad bellum) in such situations. Further, it argues against a discourse that entertains shifting duties and obligations in such situations which could, in turn, benefit an Occupying Power and provide leeway prolonged occupations which cross further into the occupation-to-annexation threshold. The article then discusses the importance of assessing the legality/illegality of occupations, including for serious breaches of peremptory norms, and the subsequent legal consequences for the Occupying Power and third States. As such, it discusses the occupation-to-annexation paradigm and the findings of international bodies on the situation in the oPt/State of Palestine.