ICJ declares Israel’s continued presence in the Occupied Palestinian Territory is unlawful

On 19 July 2024, the International Court of Justice (‘ICJ’) delivered its Advisory Opinion (the ‘Opinion’) in respect of the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. In it, the ICJ ruled that Israel’s continued presence in the occupied Palestinian territory violates international law and should come to an end “as rapidly as possible.”

Legal context

As the principal judicial organ of the UN, the ICJ has jurisdiction to hear both contentious and advisory proceedings. The case of South Africa v Israel currently before the Court is an example of a contentious case, whereas the opinion under review in this blog stems from advisory proceedings. Advisory opinions can be requested by UN organs or other specialised agencies, on any legal question. While they are non-binding, advisory opinions provide legal clarity on complex international issues and help guide States’ diplomatic response.  

The Occupied Palestinian Territory (the ‘OPT’)

The OPT consists of the West Bank, Gaza Strip and East Jerusalem, and from a legal standpoint constitutes a single territorial unit. They are areas of historic Palestine that the Palestinians want for a state but were captured by Israel in an armed conflict in 1967 (the “Six Day-War”). Since then, Israel has pursued a policy of building and supporting settlements in the West Bank and East Jerusalem and gradually expanding them, such that by 2023, approximately 465,000 settlers resided in the West Bank, spread across around 300 settlements and outposts, while over 230,000 settlers resided in East Jerusalem. Israel also had settlements in Gaza, before these were withdrawn in 2005 for political reasons, with Israel maintaining control of its borders, territorial waters, air space, and population registry.

The Opinion  

The United Nations General Assembly (UNGA) requested the court’s opinion on this matter in 2022. The UNGA’s request centred around two questions:

1. The legal consequences arising from Israel’s ongoing violation of the Palestinian peoples’ right to self-determination, and from its prolonged occupation, settlement and annexation of the OPT since 1967.
2. How Israel’s policies and practices in the OPT affect the legal status of the occupation, and the legal consequences that arise for all States and the UN from this status.

An unprecedented 52 states and 3 international organisations participated in oral hearings in February 2024, with Israel electing not to make oral arguments.

Question 1

The ICJ found Israel’s occupation, settlement and annexation of the OPT violates key tenets of international humanitarian and international human rights law, whist certain Israeli policies and measures breached international racial discrimination laws. The unlawful policies and practices pointed to by the judges included the following, each of which, the court noted, are evidenced through extensive reports by UN organs and bodies:  

1. The construction of Israeli settlements in the West Bank and East Jerusalem based on the confiscation or requisitioning of large areas of land, as well as the subsequent transfer by Israel of settlers to them and the accompanying building of complex civilian infrastructure to integrate the settlements into Israeli territory.  
2. The exploitation of natural resources in the OPT, including water, minerals and other natural resources, for the benefit of its own population (including settlers), to the disadvantage or even exclusion of the local Palestinian population.  
3. The extension of Israeli law to the OPT, particularly with regard to the expansion of its sphere of legal regulation in the West Bank, and both the substitution of military law for the local law in force across the OPT and the application of domestic Israeli law in East Jerusalem since the beginning of the occupation in 1967.  
4. The forced displacement of the Palestinian population as a consequence of Israel’s settlement policy (i.e. the large-scale confiscation of land and deprivation of access to natural resources) and Israel’s policies of forcible evictions, extensive house demolitions and restrictions on residence and movement.  
5. The annexation (i.e. forcible acquisition) by Israel of large parts of the OPT. The court considered this to be caused through a wide range of policies and practices adopted by Israel in East Jerusalem and the West Bank - including the continued construction of settlements and associated infrastructure such as the wall in the West Bank, and statements made by Israeli officials such as the proclamation of Jerusalem as Israel’s capital - which “are designed to remain in place indefinitely and create irreversible effects on the ground.”
6. The discriminatory legislation and measures adopted by Israel. The court found a breach of Article 3 CERD, though the Opinion is ambiguous as to whether this relates to racial segregation or apartheid (both of which fall under this article). The court stated that the separation between the Palestinian population and the settlers in the West Bank and East Jerusalem was both physical with regard to how Israel’s settlement policy uses a residence permit system and distinct road networks to physically isolate Palestinian communities, as well as juridical as a result of the partial extension of Israeli law to these areas with the effect of settlers and Israelis being subject to distinct legal systems.  

The court found that the prolonged character of Israel’s unlawful policies and practices listed above deprives the Palestinian people of their right to self-determination, and placed Israel in breach of its obligation to respect this right under international law.  

Question 2

The Court held that Israel’s annexation of large parts of the OPT, and its prolonged frustration of the Palestinian people’s right to self-determination, put Israel in flagrant violation of “fundamental principles of international law” and “renders Israel’s presence in the Occupied Palestinian Territory unlawful.”  

The ICJ proclaimed that “Israel has an obligation to bring an end to its presence in the Occupied Palestinian Territory as rapidly as possible.” With respect to Israel’s policies and practices detailed under ‘Question 1’ above, Israel “has an obligation to put an end to those unlawful acts.” This includes an obligation to “immediately cease all new settlement activity” as well as “to repeal all legislation and measures creating or maintaining the unlawful activity, including those which discriminate against the Palestinian people in the OPT, as well as all measures aimed at modifying the demographic composition of any pars of the territory.”  

Ultimately, Israel is also under an obligation “to provide full reparation to the Palestinian people for the damage caused by its internationally wrongful acts.” Significantly, this includes Israel’s obligation “to return the land…as well as all assets seized” from Palestinians since its occupation started in 1967, and also requires the “evacuation of all settlers from existing settlements…as well as allowing all Palestinians displaced during the occupation to return to their original place of residence.”

The ICJ found that States that are signatory to the UN Charter (‘Member States’) “are under an obligation not to recognise any changes in the physical character or demographic composition, institutional structure or status of the territory occupied by Israel on 5 June 1967.” States must also:

1. “Abstain from treaty relations with Israel in all cases in which it purports to act on behalf of the OPT.”
2. “Abstain from entering into economic or trade dealings with Israel concerning the OPT…which may entrench its unlawful presence in the territory.”  
3. “Abstain, in the establishment and maintenance of diplomatic missions in Israel, from any recognition of its illegal presence in the OPT.”
4. “Take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the OPT.”
5. Not “recognise as legal the situation arising from the unlawful presence of Israel in the OPT.”
6. Not “render aid or assistance in maintaining the situated created by Israel’s illegal presence in the OPT.”
7. Ensure that “any impediment” to the “exercise of the Palestinian people of its right to self-determination” resulting from Israel’s presence in the OPT “is brought to an end.”  

Signatories to the Fourth Geneva Convention must also ensure Israel’s compliance “with international humanitarian law as embodied in that Convention.”  

Reflections

On 18 September 2024, the UNGA passed a resolution that implemented the Opinion by calling for an end to Israel’s occupation within one year. However, this is also non-binding, and with over three months now passed since the Opinion was handed down, many are beginning to question its efficacy. On the one hand, the judgment provides a categorical exposition of Israel’s unlawful practices, corroborating what international organisations have been documenting in this region for decades, and with the court taking the significant step of finding the occupation itself to be unlawful, it compels States to help bring it to an end. However, on the other, a general lack of enforcement by States and difficulty reconciling the strong tone of the judgment with the unfolding events on the ground, undermines its potency. Ultimately, whilst the respect States give to the Opinion may vary, for those who choose to engage - whether that be government diplomats, civil society or other – the Opinion provides perhaps the most robust source of legal support yet for Palestinians’ right to self-determination, and to bring an end to Israel’s now 57-year occupation.