UN Special Rapporteur questions the legality of Israel’s occupation  

This Wednesday was the International Day of Solidarity with the Palestinian people. Palestinians in the occupied Palestinian territory (oPt) live under the longest-running military occupation in the modern world and face a severely deteriorating humanitarian situation.

As the occupying power, Israel is responsible for the welfare of the Palestinian population under its control, and is obligated to ensure that sufficient medical care and public health standards are upheld under international law.

A new report by Professor Michael Lynk, the UN Special Rapporteur on human rights in the oPt, considers whether Israel’s role as an occupying power has reached the point of illegality. Professor Lynk looks at the occupation under an international law lens, and questions when an occupation can cross a tipping point and become illegal. In his report he sets out four criteria that can be used to assess the legality of occupation.

“The Israeli occupation has become a legal and humanitarian oxymoron: an occupation without end"
- Professor Lynk

1. The occupying power cannot annex any of the occupied territory

One of the most well-established principles of modern international law is that an occupying power, under any circumstances, cannot annex or gain any legal title over any part of a territory under its occupation. This is to stop any demographic transformation of the territory, and blocks any challenges to the right of an occupied population to self-determination.

Michael Lynk suggests that Israel’s formal annexation of East Jerusalem and its de facto annexation of significant parts of the West Bank constitute a deliberate breach of the prohibition against annexation and violates Israel’s obligations under international law. In Area C, which constitutes 60 per cent of the West Bank under full Israeli civil and military law, settlers live under Israeli law in Israeli-only settlements and drive on segregated road systems. The report emphasises that few benefits, except incidentally, flow to the Palestinians in Area C.

2. The occupying power must be temporary, not permanent or indefinite, and the occupier must seek to end the occupation and return the territory as soon as reasonably possible

Occupation is inherently a temporary situation in which an occupying power assumes the role of a de facto administrator of a territory until conditions allow for the territory to be returned to its people. As it is illegal to acquire a territory by force, the occupying power is prohibited from ruling, or attempting to rule, an occupied territory.

Israel’s occupation of the Palestinian territory is 50 years old. Professor Lynk stresses that the Israeli occupation has long exceeded this temporary principle under international law and Israel has not acted consistently with the requirement to take all necessary steps to bring the occupation to a successful close in a reasonable time-period. It is argued that, whether the occupation is said to be indefinite or permanent, the lack of justification for its duration places Israel in violation of international law.

3. During the occupation, the occupying power should act in the best interests of the people under occupation

Throughout an occupation, the occupying power must govern the people under occupation in their best interests. The occupying power must observe, to the fullest extent possible, the human rights of the people under occupation. The Fourth Geneva Convention expands these obligations by requiring an occupying power to ensure a spectrum of protections, including the duty to protect children, maintain hospitals, preserve natural resources, and provide medical supplies and food.

4. The occupying power must administer the occupied territory in good faith, including acting in full compliance with its duties and obligations under international law and as a member of the United Nations

International humanitarian law stipulates that, as the occupying power, Israel is responsible for the health and welfare of the Palestinian population under its control. Professor Lynk states that in Gaza Israel maintains effective control, which means that it is responsible for the humanitarian situation there. However, more than 60 per cent of the population in Gaza is reliant upon humanitarian aid, it is unable to secure more than one-third of the electrical power that it requires and it will soon exhaust its sources of safe drinking water. Michael Lynk also highlights that compounding health concerns are increased by difficulties facing patients seeking to travel out of Gaza for medical treatment. Over 45% of permit applications in September were denied or delayed. Delayed response times can lead to patients missing appointments and delaying critical care. In August of 2017, five cancer patients died whilst awaiting permits to travel for needed care.

The report emphasises that since 1967, the UN Security Council has adopted more than 40 resolutions with regard to Israel’s occupation. However, the Israeli Government has refused to accept and apply any of these resolutions. As a UN member state, Israel has repeatedly defied the international community’s supervision over the occupation and has been deemed to be in breach of many of the leading precepts of international humanitarian and human rights law.This principle requires a state to carry out its duties and obligations in an honest, loyal, reasonable, and fair manner. Professor Lynk states that the occupier is required to govern an occupied territory in good faith, which can be measured by whether the occupying power fulfills each of the three core principles above. As well as this, the occupier must comply with specific directions from UN bodies and comply with international humanitarian law and international human rights law applicable to an occupation.

What’s next?

International law is the promise that states make to one another, and to their people, that rights will be respected, protections will be honoured, agreements and obligations will be satisfied, and peace with justice will be pursued. Professor Lynk argues that as the longest-running military occupation in the modern world, the Israeli occupation must come to a complete end, and adherence to international law must be upheld. He concludes his report by proposing a UN study to assess the legality of Israel’s role as occupying power, paving the way for international legal processes to be triggered and the occupation to be ended.

To read Professor Lynk’s full report, please click here.