24 No. 75 JUSTICE 63. In a 2005 article, Gross, Ben Naftali, and Michaeli first argued, apparently as lex ferenda, that occupation should be viewed as a normative phenomenon which can be subjected to a test of legality and illegality. They argued that violation of one of the three basic principles (as they saw them) of the law of occupation, namely that it entails (i) the non-acquisition of sovereignty; (ii) a relationship of trusteeship; and (iii) temporariness, should render an occupation illegal per se.101 Indicating that their proposed test was lex ferenda, the authors concluded that the time had come for the international community to promulgate clear time limitations for the duration of an occupation.102 However, as Ronen observes, as a matter of lex lata it is “questionable” whether a prolonged occupation constitutes grounds for illegality.103 Israel’s presence in the West Bank is justified by self-defence 64. Given that the Israeli control of the West Bank and Gaza Strip arose from Israel’s lawful exercise of its right to self-defence, Israel is not required under international law continuously to demonstrate the existence of a selfdefence justification for its presence. However, even if such justification was required, it is submitted that Israel’s presence in the West Bank is required in order to protect its citizens from attacks such as the one that occurred on 7 October 2023. 65. It is trite that international law recognises the right to self-defence. The right is recognised in the UN Charter as an “inherent” right (a “droit naturel” in the French version of the Charter), which means it is considered as an essential, natural, and inseverable aspect of statehood, flowing from the basic principle of sovereignty. More specifically, Article 51 of the UN Charter provides that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security,”104 and this right has also clearly been recognised as existing under customary international law.105 66. States, in the exercise of their right to self-defence, can take necessary measures not only to halt one specific occurrence of an attack, but to ensure that the capabilities to continue the attack are removed, without any limitation of time in terms of when this objective can be achieved, as long as the measures are still required.106 67. There is strong support for the proposition that a State can invoke self-defence in the context of a threat or risk of further attacks. This right is for example illustrated by UNSC Resolutions 1368 and 1373. Indeed, when these resolutions were adopted, the terrorist attacks of 11 September 2001 were completed. What point would there have been for the Security Council to recall the right of self-defence in relation to an attack that has already ceased, if it did not cover the possibility to invoke self-defence to prevent reasonably foreseeable attacks from the same origin?107 68. There is support in doctrine for this view. Zemach notes that “the prevailing view seems to hold that “unless the armed attack is limited, localized, and unconnected to a previous ‘accumulation of events’ or war-threatening 100. Orna Ben-Naftali, Aeyal M. Gross & Keren Michaeli, Illegal Occupation: Framing the Occupied Palestinian Territory, 23 BERKELEY J. INT’L L. 551 (2005). 101. Id., at 552–56. 102. Id., at 612. 103. Ronen, p. 208. 104. Article 51 of the UN Charter. 105. Armed Activities, para. 176. 106. O’Meara, Necessity and Proportionality and the Right of Self- Defence in International Law, OUP 2021, p. 130 (hereinafter “O’Meara”). 107. Id., p. 82.
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