Before It’s Too Late

In his 1954 study Vollendete Tatsache und Völkerrecht (“Fait accompli and International Law”), the late director of the Max Planck Institute for Comparative Public Law and International Law, Professor Carl Bilfinger, stated that fait accompli “undermines faith in the law”. Fifty years later, the International Court of Justice (ICJ) introduced the notion in its Advisory Opinion on the Wall. Yet fait accompli is given only limited attention in international law. Drawing on political sciences, this post approaches fait accompli as a factual configuration of legal relevance, highlighting its importance in relation to the Israeli settlements in the Occupied Palestinian Territory (OPT) and indeed, for the international legal order as a whole.

Fait Accompli in International Relations

In recent years, fait accompli has attracted scholarly attention in international relations. Although the concept lacks a settled definition, it is often understood as a calculated move “that seeks to revise a certain status quo while putting an adversary in a tough spot: accept the loss or try to fight back and risk a worse consequence”. A fait accompli strategy, it is argued, seeks unilateral gains “without crossing any redline”. Its objective, whether pursued through a single move or incrementally over time, is to create a new reality on the ground and force other actors to adapt to it.

Some authors distinguish between fait accompli and “salami tactics”, associating the former with a circumscribed action and the latter with a gradual sequence of limited gains. Other authors present “salami tactics” as the accumulation of several successive small faits accomplis. The first understanding is captured by the US Statement of Policy on Taiwan, which defines fait accompli as “the resort to force by [China] to invade and seize control of Taiwan before the [US] can respond effectively.” The second, processual understanding is illustrated by China’s bolstering of its territorial claims in the South and East China Seas through incursions into disputed waters and the creation of artificial islands, as explained here, here and here. Such actions, it is argued, do not individually constitute a casus belli, but their accumulation silently brings about a fundamental change. In our view, the salami tactics then culminate in a fait accompli. This processual dimension deserves particular attention in international law, because successive steps may be visible in isolation while remaining difficult to apprehend legally, even as their cumulative effects become difficult, if not impossible, to reverse in practice.

The US Statement on Taiwan further highlights that fait accompli dynamics are not confined to the immediate victim. They are also shaped by the reaction – or paralysis – of third states and the international community. This is of particular importance where a fait accompli policy results in a violation of obligations erga omnes.

Fait Accompli in International Law: An Ex-Post Approach

Fait accompli is very much a blind spot in international law. It is not an international legal notion, yet it may take many forms of legal relevance. Salami tactics leading to a fait accompli may consist of lawful or unlawful acts. A fait accompli itself may qualify as illegal, or as legal but raising issues of legitimacy, such as the provisional entry into force of a treaty upon signature which imposes itself on the authority in charge of ratification.

What we are interested in are actions creating a situation of prolonged illegality that is (almost) impossible to revert, and thereby ridicules the law. How does international law address the acts and omissions preceding the fait accompli, when there is still time to prevent the facts taking precedence over the law?

What comes closest to the concept is the breach of an international obligation consisting of a composite act. Theoretically, the regime of composite acts could contribute to the legal conceptualisation of fait accompli, insofar as it recognises that certain internationally wrongful acts may be constituted through accumulation. Article 15 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), however, fails to deliver in this respect. It provides that such a breach takes place “when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act”. This means that, as observed in the International Law Commission’s Commentary (§7), the characterisation as a wrongful act is retrospective: only once the series of acts or omissions has occurred can it be characterised as a composite act constituting, as a whole, a breach of an international obligation. It does not, in real time, capture ongoing practices that lead progressively and cumulatively to an irreversible situation, and thereby fails to grasp the essential issue of fait accompli.

The same applies to the legal regime of obligations of prevention. As provided in ARSIWA Article 14.3, a breach of such obligations arises only when the event to be prevented actually occurs. In the Bosnian Genocide case, the ICJ accordingly observed that, while the obligation of prevention is logically triggered before the event to be prevented occurs, “a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed” (§431 – emphasis added). This means that third States may invoke the responsibility of the responsible State and adopt countermeasures only when it is too late.

These rules neglect the dynamic nature of fait accompli policy as a device to move from ex injuria jus non oritur to ex factis jus oritur – the normative force of facts. Rather than adopting an ex–ante view to protect its effectiveness, international law summarily proclaims that it will not yield to the force of time and fact, as stated in ARSIWA Article 41.2, according to which no State shall recognize as lawful a situation created by a serious breach of a peremptory norm of international law.

The ICJ’s approach in provisional measure proceedings further illustrates this. Conceptually, provisional measures can protect a right before it has been breached, and thus apprehend the dynamics of fait accompli. However, in Pulp Mills on the River Uruguay, the Court addressed the request for protection against a fait accompli in its order on provisional measures, only to dismiss it as essentially irrelevant. Argentina contended that the construction of the mills “would set the seal on Uruguay’s unilateral effort to create a ‘fait accompli’” (§18). The Court denied this, stating that the construction could not “be deemed to create a fait accompli because (…) the possibility cannot and should not be excluded a priori of a judicial finding that such works must not be continued or must be modified or dismantled” (§78). The Court subsequently stated in its judgment that, in view of its earlier finding on fait accompli, it was, in pronouncing on the merits, “the ultimate guarantor of [the parties’] compliance” with their international obligations (§156). It is a profession of faith in the power of international law and adjudication that prompted the Court’s denialist stance towards the power of fait accompli. This fails to recognize the nature of fait accompli as the law’s silent enemy, which gradually creates the conditions for its own powerlessness and undermines the very faith that the Court professes.

Glimmers of Hope for an Ex-Ante Approach

International law is not inherently ill-equipped to address fait accompli ex-ante. The Security Council’s power under Chapter VII of the UN Charter to address “threats to the peace” before a breach of the peace materializes, is conceptually at the apex of international action against fait accompli policies.

Judicial practice also offers glimmers of hope. In the Indus Waters Kishenganga Arbitration, Pakistan argued that provisional measures were necessary to “prevent the creation of a fait accompli” which risked rendering any remedy ordered by the Court ineffective in the “real world” (§99). The PCA Court of Arbitration found that provisional measures were necessary indeed in the face of a “risk of a fait accompli that compromises the liberty of the Court of Arbitration to render its Award in the manner it considers to be legally warranted, or the Parties’ ability to implement such award without prohibitive delays or costs” (§139, §148).

The ICJ, in turn, first used the expression in its 2004 Advisory Opinion on the Wall. It noted “the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature”, then to discard that assurance owing to the risk of a fait accompli:

“[The Court] nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine (…) the construction of the wall and its associated régime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.” (§121)

The Court quoted this passage in full in its 2024 Advisory Opinion on Legal consequences arising from the policies and practices of Israel, to conclude that these policies and practices were “designed to remain in place indefinitely and to create irreversible effects on the ground” and “[c]onsequently amount to annexation” (§§172-173). This is arguably unexceptional: the notion of fait accompli may have assisted in determining how an accumulation of seemingly separate facts culminate in a de facto annexation. However, as Brunk and Hakimi observe, the Court stopped short of using this insight to detach annexation from the prohibition on the use of force.

Perhaps, then, the 2004 Opinion is more remarkable. Although the Court refrained from concluding that the wall qualified as annexation, it relied on the issue of fait accompli, among other elements, to find that Israel had the obligation to cease the construction works (§151). What the Court cautiously did, we cautiously suggest, was to try and grant legal protection against the future effects of aggregate facts given their irreversible nature on the ground.

Fait Accompli as a Call for Action: the Israeli Settlements Today

Fait accompli affects the conditions under which law is assessed, applied, and rendered effective – or indeed, ineffective. It is the policy instrument par excellence to make might prevail over right. As such, international law-makers and international courts and tribunals would benefit from a more thorough engagement with the phenomenon and its legal implications. It deserves more attention in provisional measure proceedings, in the concretization of obligations to prevent and of early warning mechanisms, and in the legal apprehension of preparatory acts to violations of international law – with a view to bolstering the effectiveness of, and trust in, international law, not therefore to broaden the licence to use force unilaterally as in the ‘accumulation of events’ doctrine.

The main lesson is that the international community has a paramount legal interest in fighting fait accompli by all lawful means, because as Bilfinger stated, “it undermines faith in the law itself” and curtails the international community’s power to take future action to uphold international law.

This is acutely relevant today as Israel approves further settlements in the West Bank, prompting condemnation by, i.a., the UN Secretary-General and OHCHR. As Ephstain observes, several phenomena in the OPT – the settlements, settler violence, the obstruction of humanitarian relief, the fragmentation of Palestinian governance – are “too often treated separately” whereas together, they create a system of coercion in which territory is unlawfully acquired and controlled. As Ephstain underlines, “Israel’s land title settlement process – which “may sound technical” – uses planning rules to turn unrecognized Palestinian ownership records into a tool of dispossession”. This is fait accompli pur sang.

Now is therefore the time for resolute action. This is in the interest of the Palestinian people, in the interest of the people of Israel whose outgoing government reportedly “seeks to cement West Bank gains before election”, and in the interest of the international community, whose influence is weakened by Israel’s fait accompli policy. An essential feature of that policy is that third States stand idle while their influence crumbles before their feet.