The U.N. General Assembly requested an advisory opinion on the legality of the occupation.
Last week, the International Court of Justice (ICJ) in The Hague determined that Israel’s occupation of Palestinian territory – the West Bank, East Jerusalem, and the Gaza Strip – is illegal and must end “as rapidly as possible.” Without addressing the question of whether Palestine should be a state, the court’s advisory opinion clearly says that Palestinian territory doesn’t belong to Israel and Israel can no longer govern it. Israel’s “abuse of its status as the occupying power” has made its “presence in the occupied Palestinian territory unlawful,” judges concluded.
International law experts and court watchers described the opinion as a “blockbuster,” “world changing,” and “a vindication of Palestinians’ rights.” The advisory opinion effectively rejects Israel’s one-state reality and offers one more argument for a two-state solution. More than 140 countries already recognize a Palestinian state despite Israeli officials’ protest.
What the ICJ ruling says
Israel is now legally obligated to remove both its forces and Israeli settlers from Palestinian territory, ending the six-decade occupation. Not only that, Israel is obligated to make reparations to Palestinians for damages in the course of the occupation.
Following the decision, Israeli Prime Minister Benjamin Netanyahu declared on X, “No false decision in The Hague will distort this historical truth and likewise the legality of Israeli settlement in all the territories of our homeland cannot be contested.”
But to reject the court’s opinion is to risk further violations of international law.
ICJ judges added that the international community (both governments and international organizations) has a legal obligation to not recognize Israel’s occupation. The ICJ called on other countries, in particular, not to render help to Israel that would maintain the occupation. This potentially means allies must cut off resources to Israel or at least set clear conditions for how foreign aid can be used – not write Israel a blank check, as the United States and others have done for decades.
Judges also called on the United Nations, especially the General Assembly, to consider actions to accelerate the end of the occupation. The emphasis on the General Assembly, rather than the Security Council, is notable. The United States, as a permanent, veto-wielding Security Council member, has historically sheltered Israel from rebuke and sanction. But the United States doesn’t wield such power in the General Assembly, where action against Israel is more likely. But General Assembly resolutions, unlike Security Council resolutions, aren’t legally binding on U.N. members.
The ICJ advisory opinion also isn’t legally binding; judges didn’t decide a case filed by one party against another. Rather, they responded to a request from the General Assembly for an advisory opinion. The decision is related to, but separate from, a case South Africa brought against Israel last December accusing the country of committing genocide against Palestinians since Oct. 7, 2023. This other case could take years to resolve but the ICJ so far has indicated that it is “plausible” that Israel is committing genocide against Palestinians.
How did the ICJ ruling come about – and what do the court’s findings mean for Israel, third-party states, and international organizations? Let’s look at the details.
The General Assembly sought the ICJ’s legal opinion
On Dec. 30, 2022, the U.N. General Assembly adopted Resolution 77/247, titled “Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem.” In one section, the General Assembly asked the ICJ’s opinion on two questions. (Under Article 96 of the U.N. Charter, the General Assembly can seek the ICJ’s opinion on “any legal question.”)
The first question was about the legal consequences of Israel’s violation of Palestinians’ right to self-determination through “prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967 … and from its adoption of related discriminatory legislation and measures.”
The second question was about how Israel’s conduct in Palestinian territory affects the legal status of the occupation, and how members of the international community are obligated to respond.
The General Assembly’s questions came more than nine months before the Oct. 7 Hamas terrorist attack and the retaliatory war Israel has waged in Gaza, which some have called a genocide. The court isn’t targeting Israel, as U.S. and Israeli officials have complained. Rather, it is fulfilling its judicial function, as requested by another principal organ of the United Nations.
Here are some highlights from the advisory opinion:
1. The ICJ had jurisdiction to answer the questions
Judges unanimously affirmed the court had jurisdiction to issue the advisory opinion, per U.N. Charter Article 96. The questions posed were legal in nature and both the General Assembly and the Security Council can ask the court’s opinion on any legal question.
2. The ICJ had discretion to answer the questions
The ICJ’s rules clearly state that “the Court may give an advisory opinion” but the rules don’t require it to do so. By a vote of 14 to 1, judges found no compelling reason not to give the advisory opinion.
While Israel rejected the court’s jurisdiction, the court didn’t violate the principle of consent by issuing an advisory opinion. The specific questions in this case concern not only Israel and Palestine but also “the responsibilities of the United Nations and wider questions of international peace and security, as well as certain obligations erga omnes of States.”
The court considered conjecture by the United States and others that the advisory opinion would interfere with the Israeli-Palestinian peace process or impede the work of the U.N. Security Council. Judges then threw out these arguments, determining them to be just that – conjecture.
The court also rejected the argument that the U.N. General Assembly phrased the questions in a biased manner and, therefore, the court shouldn’t answer them. Moreover, the court rejected the contention that it lacked sufficient information to render an opinion. Over the last year, more than 50 countries and international organizations submitted pertinent information to the court.
Perhaps most importantly, judges pointed out that the General Assembly had requested an advisory opinion. The court couldn’t just decide that the General Assembly didn’t need answers to its questions and, thus, decline the request.
So the court exercised its discretion to give an advisory opinion.
3. Israel’s presence in Palestinian territory is unlawful
By a vote of 11 to 4, the court found Israel’s presence in Palestinian territory to be unlawful.
– Prolonged occupation
As background, the occupation – now in its 57th year – has been prolonged. Judges said international law, including the Fourth Geneva Convention, holds that “occupation is a temporary situation to respond to military necessity, and it cannot transfer title of sovereignty to the occupying Power.”
This determination, that occupied territory doesn’t over a period of time become the occupying force’s territory, contradicts Netanyahu’s “New Middle East” plan, which takes Palestine off the map. The determination also refutes Netanyahu’s assertion that the West Bank and East Jerusalem (which he refers to as “Judea and Samaria”) are Israel’s territory.
– Settlement policy
The court confirmed that Israel has established and helped maintain settlements in Palestinian territory. And the court found that Israel has transferred settlers and provided aid to settlers, including protective personnel and infrastructure. These practices violate Article 49, paragraph 6 of the Fourth Geneva Convention, which states that an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies.” The court held that Israeli settlement policy doesn’t respond to a military necessity and serves to make the occupation permanent.
Israel’s confiscation of Palestinian land, to build or secure settlements, also violates Articles 46, 52, and 55 of the Hague Regulations, the court found. In addition, the court addressed Israel’s exploitation of Palestinian natural resources and extension of Israeli law into the territory, both of which lack a legal basis and contravene Palestinians’ sovereignty rights.
The forced displacement of Palestinians and violence against them (whether perpetrated directly by Israeli forces or by settlers with Israel’s acquiescence) violate a number of international agreements, namely the first paragraph of Articles 27 and 49 of the Fourth Geneva Convention and Article 46 of the Hague Regulations. These practices also violate Article 6, paragraph 1 (right to life) and Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment) of the International Covenant on Civil and Political Rights (ICCPR).
– Annexation of land
The court next determined that Israel has annexed (acquired by force) at least part of Palestinian territory with the intent to permanently control it, in violation of the law of occupation mentioned above.
– Discriminatory laws and policies
Moreover, the court established that Israel’s residency rules for Palestinians, restrictions on their movement, and demolition of their property constitute “systemic discrimination based on, inter alia, race, religion or ethnic origin.” This violates multiple provisions of international human rights treaties that prohibit discrimination, including the aforementioned ICCPR, as well as the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.
– Palestinians’ self-determination rights
On the question of Palestinians’ self-determination rights, the court sustained the premise of the General Assembly’s question, concluding, “As a consequence of Israel’s policies and practices, which span decades, the Palestinian people has been deprived of its right to self-determination over a long period, and further prolongation of these policies and practices undermines the exercise of this right in the future.”
Next steps
In light of the foregoing, the court declared:
Israel is obligated to end the occupation, rapidly (by a vote of 11 to 4).
Israel must cease settlements – and evacuate Israeli settlers – in Palestinian territory (by a vote of 14 to 1).
Israel must make reparations to Palestinians (by a vote of 14 to 1).
U.N. member states must not recognize or support Israel’s illegal occupation (by a vote of 12 to 3).
International organizations must not recognize Israel’s illegal occupation (by a vote of 12 to 3).
The United Nations, in particular the General Assembly, should consider action to hasten the end of the occupation (by a vote of 12 to 3).
This advisory opinion is monumental
International law scholar Marko Milanovic declared it “one of the most important decisions that the ICJ has ever delivered,” noting the high degree of consensus among the judges. He also highlighted the finding that Israel hasn’t just violated international law in its occupation of Palestinian territory but that the occupation as it has been conducted violates international law and must end.
Human Rights Watch’s executive director Tirana Hassan said the advisory opinion should “prompt a thorough reassessment” of states’ foreign policies toward Israel. Countries’ responsibility to Palestinians has never been clearer: The ICJ has said they must not recognize or support Israel’s illegal occupation in any way.
The court has opened the door for leaders, legislatures, and courts around the world to change course. For instance, in February, a Dutch court blocked the export of F-35 fighter jets to Israel on the basis of the Netherlands’ humanitarian obligations to Gaza.
More broadly, E.U. foreign ministers have been debating sanctions against Israel for violations of international humanitarian law in Gaza. The high degree of consensus among ICJ judges – some of whom hail from E.U. countries contemplating sanctions, including France and Germany – could strengthen the argument for sanctions, not just for abuses in Gaza but also for the illegal occupation of Palestinian territory.
Kelebogile Zvobgo - July 26, 2024
Originally published in Good Authority, cc: 4.0
Thumbnail photo "La haye palais paix jardin face" (cc) Velvet via Wikimedia Commons