17 Fall 2025 mandate to administer South-West Africa. 34. The South African-Namibian case is therefore distinguishable from the Israeli-Palestinian case as, in the latter, there is a mutually agreed – and consensual – international framework for resolution of the conflict. This further distinguishes the Israeli-Palestinian case from that of Iraq in Kuwait, as well as Portugal in Guinea Bissau (as to which see further below). Unlike in those cases, the subsisting legal and political framework for resolution of the conflict has been adopted by the Security Council, agreed by the parties, and remains in force. It provides for the continuation of Israel’s exercise of certain powers and responsibilities over areas in the West Bank, pending the conflict’s negotiated resolution. The content and status of the international law of occupation 35. Israel’s military action in the Six-Day War of 1967, through which it acquired control of the West Bank and Gaza Strip, was justified by Article 51 of the UN Charter as a legitimate exercise of its right to self-defence against inter-State aggression;49 its subsequent control of these territories did not arise from aggressive war. In addition to the international and bilateral legal framework for resolution of the conflict (discussed above), this further distinguishes the Israeli-Palestinian case from that of the South African presence in Namibia, or Iraq’s occupation of Kuwait, where there was no equivalent legal basis for the South African or Iraqi presence respectively. 36. The existence of an occupation is a matter of fact. Once occupation has been established an occupant is permitted, subject to the laws of war, to apply lawful force to maintain and restore public security and safety, and to prevent security and other threats within and from the territory in question.50 An occupation does not become illegal with the passing of time and there is no basis in public international law to conclude that an occupation preventing the exercise of the right of self-determination becomes illegal. 37. Even assuming, arguendo, it is accepted that an occupying power is required to justify, on a continuing basis, its presence in occupied territory pending resolution of a conflict, then, given the reality of the factual and political situation on the ground in Israel, the West Bank and Gaza, it would be incumbent on the Court to take into account the application of Israel’s right to use force in its protection as a relevant aspect of the applicable legal framework. Indeed, there is currently little doubt, especially in light of events on 7 October 2023, that Israel (a) continues to face serious security challenges and threats of armed attacks from both the West Bank and Gaza which it is entitled to address in the exercise of its rights under the law of occupation and, as a sovereign State, to protect its territory and its citizens, and (b) that an Israeli military presence in these territories is necessary to prevent such threats. Occupation is a matter of fact 38. Article 42 of the Hague Regulations, which reflects customary international law,51 states that “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”52 The test for the existence 49. A. Shapira, The Six-Day War and the Right of Self-Defence, Israel Law Review, Volume 6, Issue 1, January 1971, pp. 65-80; Y Dinstein, War, Aggression and Self-Defence (Cambridge University Press Fifth) (2011), p. 206-207 (hereinafter “Dinstein – Self-Defence”). 50. Regulations Annexed to the Hague Convention (IV) Respecting the Laws and Customs of War on Land, Art. 43, The Hague, Oct. 18, 1907, 36 Stat. 2295, 205 Consol. T.S. 277 (hereinafter “Hague Convention (IV)”). 51. Wall Advisory Opinion, paras 78, 89. See also Brussels Declaration (1874), Art 1; Lieber Code (1863), Art. 3(1). 52. Hague Convention (IV), Art. 42. See also Armed Activities Judgment, I.C.J. Reports 2005 (Dec. 19, 2005), pp. 229-30, 172 (hereinafter “Armed Activities”).
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