The UN Commission of Inquiry - which is not a court - decided that Israel's occupation is illegal, which is pretty much new legal ground. And the Commission even admits it!
Its report says, "It is unclear in international law and practice when a situation of belligerent occupation becomes unlawful." But that doesn't stop it from trying - and then pretending it did!
A number of legal experts have identified several principles that, when adhered to, may be used to determine the legality of an occupation. These include whether sovereignty and title are not vested in the occupying power, the occupying power is entrusted with the management of public order and civil life in the occupied territory, the people under occupation are the beneficiaries of that trust in view of their right to self-determination, and the occupation is temporary.In the present report, the Commission focuses on two indicators that may be used to determine the illegality of the occupation: the permanence of the Israeli occupation, already noted in its previous report to the Human Rights Council at its fiftieth session, and actions amounting to annexation, including unilateral actions taken to dispose of parts of the Occupied Palestinian Territory as if Israel held sovereignty over it.
No legal precedent. Just asking some "experts" who are anti-Israel - and not asking legal experts who are not already antipathetic towards the Jewish state.
In short, the UN is making things up to come to a pre-determined conclusion by cherry picking legal scholars who agree with that conclusion - and not even seeking the opinions of anyone else.
Yet none of these assumptions as to what makes an occupation illegal - a concept that is virtually sui generis, made up for Israel - are based on actual legal rulings. They are making up novel arguments, treating them as established law, and hoping that people believe it.
There is one case that is precedent for the legality of Israel's presence in the West Bank. And, naturally, the UN doesn't cite it.
In 2013, a French court of appeals ruled in a mostly forgotten but quite important case (Association FRANCE-PALESTINE SOLIDARITE “AFPS” and PLO et. al. vs. SOCIETE ALSTOM TRANSPORT SA) that Israel's presence in the West Bank is a case of legal occupation.
The PLO had claimed that Israel's occupation is illegal based on a hodgepodge of arguments, such as claiming that Israel violates the Hague Convention IX of 1907, Article 5, that says "In bombardments by naval forces all the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not used at the same time for military purposes...."
The court acidly noted that there were no bombardments of Jerusalem.
More importantly, the French court ruled that the PLO's claims of being occupied under the Hague and Geneva Conventions were invalid to begin with, because those conventions are based on one nation invading the territory of another "high contracting power" and the PLO was not a state.
The case is summarized here.
It is the first time since the establishment of the State of Israel in 1948 that an independent, non-Israeli court has been called upon to examine the legal status of West bank territories under international law, beyond the political claims of the parties.
While this court does not decide international law, it examined international law and ruled according to those laws. As such, it should have been referred to by the UN COI as a precedent, or at least as a source for legal arguments.
Of course, the COI does nothing of the sort. The French court ruled the "wrong" way and therefore must be ignored, while wholly new legal opinions must be promoted.
Because the UN COI is not trying to determine the truth. Its entire purpose is to twist law and facts to create a new legal framework and a new "truth" tailor-made to damn Israel.
(h/t Yerushalimey)
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