This article explores the implications of Israel’s policies and actions in the Occupied Palestinian Territories, including East Jerusalem and Gaza, concerning the extraterritorial application of human rights treaties. It examines states’ cross-border human rights obligations through the lens of the provisional measures issued in South Africa v. Israel under the Convention on the Prevention and Punishment of the Crime of Genocide, as well as the 2024 Advisory Opinion on the Legal Consequences of Israel’s Actions in the Occupied Territories. Focusing on the intersection of humanitarian law and human rights law, the study highlights Israel’s responsibility to uphold both legal frameworks in areas under its effective control. It critically analyzes Israel’s rejection of the extraterritorial applicability of human rights treaties, contrasting this stance with the jurisprudence of the International Court of Justice (ICJ) and other legal authorities. The article advocates for a complementary application of human rights law alongside humanitarian law to ensure comprehensive legal protection in occupied territories. Additionally, the study addresses the practical challenges of safeguarding human rights under occupation, with particular attention to movement restrictions, property demolitions, and forced displacement. Finally, it underscores the role of the international community in ensuring compliance with human rights norms and preventing violations in the region.
Human Rights Treaties Extraterritorial Applicability International Court of Justice Self-Determination Legal Obligations
This study examines the legal implications of Israel’s policies and military actions in the Occupied Palestinian Territories in terms of the extraterritorial applicability of international human rights treaties. The foundation of this study is built upon the evaluation of obligations related to the prevention and punishment of genocide in the context of the case “South Africa v. Israel”initiated by South Africa at the International Court of Justice (ICJ).
The article first explains the operational logic of the international legal system in times of crisis, such as war and occupation, along with the procedural aspects of international law. It then analyzes the relationship between Israel’s de facto control over occupied territories and its international obligations. In this regard, the applicability of binding international human rights treaties has been supported by the argument that states bear responsibilities not only within their own borders but also extraterritorially.
In its 2004 ruling, the ICJ determined that Israel’s construction of the separation wall in the West Bank violated human rights and international humanitarian law. This decision explicitly stated that the Palestinian people’s right to self-determination had been obstructed. Israel’s security-based justifications were deemed insufficient under the principles of proportionality and necessity.
One of the key contributions of the article is the argument that international humanitarian law and human rights law do not conflict with each other; rather, they must be applied simultaneously, particularly in occupation contexts. The European Court of Human Rights, through its Al-Skeini ruling, developed the concepts of “state agent authority” and “effective control area,” detailing how an occupying state remains bound by international obligations concerning individuals beyond its borders. Similarly, the case law of the United Nations Human Rights Committee underscores that states continue to bear human rights responsibilities over individuals under their jurisdiction or effective control.
At the end of 2023, South Africa’s application to the ICJ was based on the claim that Israel’s military operations exhibited genocidal intent and that intentional harm inflicted upon civilians violated the Genocide Convention. Consequently, the Court issued provisional measures, ordering Israel to take immediate steps to prevent harm to Palestinian civilians and halt actions that could lead to genocide.
The article argues that these decisions contribute significantly to the development of case law concerning the extraterritorial applicability of international law. Furthermore, the applications by certain states to join the proceedings illustrate that states party to international treaties hold an erga omnes (obligation owed to all) duty to ensure compliance.
Israel’s actions as an occupying power are clearly in violation of international human rights law, encompassing breaches of both negative and positive obligations. Restrictions on freedom of movement, violations of the right to life, arbitrary detentions, and impediments to access to healthcare and education all constitute direct violations of international law.
In conclusion, the article asserts that international law possesses a sufficient normative framework to prevent human rights violations in occupied territories and ensure accountability. However, due to the lack of political will and collective action, these legal norms often remain ineffective at the implementation level. Therefore, the international community, particularly through pressure from non-state actors and civil society, must take more decisive and effective measures. The complementary application of human rights law and humanitarian law not only safeguards individuals but also ensures the universal preservation of the rule of law.