27 Fall 2025 76. Therefore, the ICJ seems to consider occupation as a factual rather than legal element which enables the Court to ground its conclusion that given that the threat emerges from within territory controlled by Israel, this in turn justifies the non-applicability of the right to self-defence. There is nothing in the advisory opinion that expressly supports an inference that the ICJ has made a legal pronouncement on the impact of occupation per se (as opposed to a State’s control of territory absent a cross-border element) on a State’s right to invoke self-defence. 77. This analysis changes the nature of the discussion because it renders the question of whether territory is occupied (as a legal fact) by a State irrelevant to the assessment of whether self-defence can be invoked by that State. It further demonstrates the fallacy of the existing, unnecessary confusion in the debate, and invites us to refocus on a more simple question: why should a State, under the law of self-defence, not be allowed to exercise its right to self-defence against armed attacks that emanate from beyond its sovereign territory, irrespective of who controls the territory from which the armed attacks emanate? 78. It is submitted that there is no basis in international law to limit the right of self-defence, which we recall is premised on the inherent right of State to protect its territory and citizens as a natural consequence of its sovereignty, in this way. This was the view expressed by several ICJ Judges in 2004. 79. As Judge Buergenthal stated: “Israel claims that it has a right to defend itself against terrorist attacks to which it is subjected on its territory from across the Green Line and that in doing so it is exercising its inherent right of selfdefence. In assessing the legitimacy of this claim, it is irrelevant that Israel is alleged to exercise control in the Occupied Palestinian Territory - whatever the concept of ‘control’ means given the attacks Israel is subjected from that territory - or that the attacks do not originate from outside the territory. For to the extent that the Green Line is accepted by the Court as delimiting the dividing line between Israel and the Occupied Palestinian Territory, to that extent the territory from which the attacks originate is not part of Israel proper. Attacks on Israel coming from across that line must therefore permit Israel to exercise its right of self-defence against such attacks, provided the measures it takes are otherwise consistent with the legitimate exercise of that right. To make that judgment, that is, to determine whether or not the construction of the wall, in whole or in part, by Israel meets that test, all relevant facts bearing on issues of necessity and proportionality must be analysed. The Court’s formalistic approach to the right of self-defence enables it to avoid addressing the very issues that are at the heart of this case.”120 80. Judge Higgins added: “I also find unpersuasive the Court’s contention that, as the uses of force emanate from occupied territory, it is not an armed attack ‘by one State against another.’ I fail to understand the Court’s view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory - a territory which it has found not to have been annexed and is certainly ‘other than’ Israel.”121 81. From the preceding legal analysis, it follows that the existence of an occupation is not material to the determination of whether a State can invoke its right to self-defence. The material factor is whether the armed attack, or the imminent threat of armed attack, emanates from outside the State’s sovereign territory. 120. Wall Advisory Opinion, Declaration of Judge Buergenthal, p. 243, para. 5. 121. Wall Advisory Opinion, Separate Opinion of Judge Higgins, p. 215, para. 34.
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