Legal opinion

Expert opinion on the occupier’s legislative power over an occupied territory under IHL in light of Israel’s on-going occupation

Dr. Théo Boutruche and Professor Marco Sassòli|Published 14. Jul 2017
The Legal Expert Opinion authored by Dr. Théo Boutruche and Professor Marco Sassòli, is concerned with the legal obligation of the Occupying Power, imposed by the relevant norms of International Humanitarian Law (IHL), not to make changes to local legislation other than those necessary for security needs or those that benefit the local population, and analyzes the changes to legislation that Israel has made throughout fifty years of occupation in light of this obligation.

The Expert Opinion first provides an in-depth analysis of the meaning, scope and interplay of the relevant duties and obligations of the Occupying Power limiting changes to local laws and institutions.

It then assesses the most significant changes introduced by Israel over the 50 years of occupation, considering in particular the different type of legislation adopted, from military orders to laws passed by the Israeli Parliament.

Finally, the Expert Opinion identifies Israel’s obligations to rectify unlawful changes and third States’ obligations in this regard.

The Opinion concluded that certain legislative changes adopted by an Occupying Power, may not only constitute violations of the law of belligerent occupation, but may also amount to a certain form of annexation, prohibited by the jus ad bellum, the international law on the use of force.

In the absence of a formal declaration of annexation by the Israeli authorities, and considering that from the early days of the occupation in 1967, at least for the West Bank, Israel refrained from going as far as applying Israeli law to the occupied Palestinian territory, the recent legislative developments may provide additional evidence for classifying Israeli legislation in certain parts as a functional annexation in violation of the jus ad bellum.