No Simple End: The ICJ and Remedies for Illegal Practices in the Occupied Territories
The ICJ has heard 52 states and international organizations on the legal consequences of Israel's policies and practices in the Occupied Palestinian Territory. While the Court is likely to find key Israeli policies unlawful under international law, its remedies should take into account complex aspects of the dispute, such as security considerations, competing title claims and reality on the ground.
Photo by: Istock/Joel Carillet
During six days in February 2024, the International Court of Justice (ICJ) heard 52 States and international organizations stating their position on a legal matter put before the Court – the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. Almost all participants in the hearings identified Israeli policies and practices relating to the occupation which they deemed to be illegal, and which should entail legal consequences for Israel, other States and the UN. Given the broad international support for these legal propositions, it is highly likely that – unless the ICJ would deem the request for an advisory opinion to be inadmissible (an outcome that would surprise most observers of the Court) – it will accept the legal premises of the first question referred to it by the General Assembly: i.e., that there is an ongoing violation of the Palestinian right to self-determination for the reasons specified in the question – “prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and… adoption of related discriminatory legislation and measures.”
Put differently, it is likely that the Court will regard certain features of the Israeli occupation as incompatible with international law. These may include the exceptionally long duration of the occupation, which appears to be incompatible with the Palestinian right to self-determination (See e.g., Ireland oral submissions at p. 40), the settlement policy and associated measures that appear to be a form of prohibited demographic change and de facto annexation (see the 2004 ICJ advisory opinion on the Wall in the OPT at para 121), which is incompatible with the prohibition against acquisition of territory by force (see e.g., Japan oral submissions at p. 50), and practices of discrimination and restrictions, inter alia, in access to land and movement that violate important rules of international humanitarian law (IHL) and international human rights law (IHRL) (See e.g., Pakistan oral submissions at p. 45).
The more challenging aspect of the advisory proceedings, involves, however, the second question referred to the Court by the General Assembly:
“How do the policies and practices of Israel referred to [above] affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?”
It remains to be seen whether the ICJ will follow, in this regard, the approach taken by a majority of participating States who qualified the occupation itself as “illegal” (see e.g., Palestine oral submissions at p. 54, Bolivia oral submissions at p. 25, UAE oral submissions at p. 46), or follow the more timid approach proposed by the United States (see US oral submissions at p. 55), according to which belligerent occupation is premised on factual circumstances that cannot be characterized as legal or illegal. In any event, the Court is likely to opine that international law requires Israel to bring to an end its illegal policies and practices, with a view to realizing the Palestinian right to self-determination, as a part of a two-State solution to the Israeli-Palestinian conflict which many of the participants expressed support for (see e.g., Namibia oral submissions at p. 18, UK oral submissions at p. 22, China oral submissions at p. 18, Palestine oral submission at p. 114; US oral submission at p. 54-55).
Still, the most significant part of the opinion, from both a legal and practical standpoint, might be the position that the Court would take on the timeline and process by which the situation of illegality should be brought to an end. We explain below why the approach taken in this regard by many States – first and foremost, Palestine – according to which the end of occupation must occur “immediately, totally and unconditionally” (Palestine oral submissions at p. 56) is legally and practically difficult to apply.
Unlike previous cases in which the use of such decisive language might have been appropriate (see e.g., the 1971 Namibia advisory opinion which alluded to immediate withdrawal of South African administration and Security Council Res. 660 (1990) demanding that Iraq withdraw from Kuwait immediately and unconditionally), the complexities of the Israeli-Palestinian conflict do not easily lend themselves to such a sweeping formulation. This is because, the Israeli presence in the West Bank and Jerusalem is premised, in part, on real security concerns, the existence of a legal dispute over the borders between the two States and the de facto reality on the ground, which will render an immediate and unilateral withdrawal practically impossible.
These complicating factors – which were hardly acknowledged by most participants in the advisory proceedings – should lead the Court to consider adopting a more flexible formulation for the timeframe for ending situations of illegality (cf. the approach of the Court in the Chagos advisory opinion – “as rapidly as possible”) and, more significantly, for the process by which the terms of specific changes on the ground should be determined (e.g., bilateral or multilateral negotiations) (cf. the approach of the Court in the Gabčíkovo-Nagymaros case – that the immediate parties “must negotiate in good faith in the light of the prevailing situation,” and in the Wall in the OPT advisory opinion – “The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation”).
One significant complicating factor, which distinguishes the Israel-Palestine conflict from other international situations involving calls to immediately end an occupation, colonization or an expired legal mandate is the security threat posed to Israel from the territories it occupies. Israel occupied these territories in 1967 during a war it saw as designed to remove an immediate and existential military threat originating, inter alia, from these territories. This security threat served as the basis for Security Council Resolution 242 (1967), adopted several months after the Six-Day War, which introduced the “land for peace” formula, according to which a just and lasting peace in the Middle East will be based on withdrawal from occupied territories and “acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.” The same formula was reiterated by the Council after the 1973 war in Resolution 338 (1973). Significantly, Resolutions 242 and 338 were endorsed by both Israel and the PLO during the Oslo Process, and have been reiterated since by numerous Security Council Resolutions (see e.g., here).
The principle that withdrawal from territories should be accompanied by effective security guarantees was also central to the interim agreements between Israel and the PLO, which established in the 1990s the Palestinian Authority and transferred to it powers of governance over parts of the occupied territories, including in the field of public order and internal security, while Israel retained overall security responsibility over the area (1995 Interim Agreement, article X). It was also agreed between the parties that final status negotiations will address security arrangements (1993 Declaration of Principles, art. V). The collapse of the Oslo Process stems, to a large extent, from the inability of the parties to continue Israeli withdrawals, while affording to it reasonable security guarantees from the Palestinian side – two waves of suicide bombing attacks from the occupied territories in the periods 1994-1997 and 2000-2006 have coincided with the slowing of the withdrawal process to a halt, the resumption of extensive Israeli settlement activity in the West Bank and East Jerusalem, the occasional reentry of Israeli forces to PA-run areas (designated as Areas A under the 1995 Interim Agreement) and the construction of the separation barrier/wall. What’s more, it may be well argued that the one major attempt to undertake unilateral withdrawal from territories occupied in 1967 without making security arrangements – the 2005 withdrawal from the Gaza Strip – has led to disastrous consequences, and has given rise in recent months to the worst conflagration of Israeli-Palestinian violence since the 1947-1949 war.
As a result, even though it is clear to us that many of Israel’s policies and practices in the occupied territories are not driven by security considerations, but largely emanate from political agendas that seek to illegitimately perpetuate Israel’s control over all or part of the territories, the existence of these agendas and the attendant illegality of the policies and practices underlying them do not negate the parallel existence of some genuine and most serious security concerns. Arguably, international law does not bar the exercise of legal rights when some of the motivations underlying their invocation are illegitimate, provided that legitimate motivations are also at play and are sufficiently dominant (cf. discussion of the legality of international coalition operations against Libya in 2011).
In addition, despite the elevated status of the right to self-determination under international law (e.g., its erga omnes and possible jus cogens nature), which Israeli policies and practices appear to violate, the right is not absolute in nature and should be balanced against other important rights under international law (for an analysis, see e.g., here; this is contrary to some of the claims made to the Court explicitly or implicitly – see e.g., Palestine oral submissions at pp. 95-96). For example, even in the decolonization context, realization of the right to self-determination was made subject to the territorial integrity and political sovereignty of existing States (See e.g., GA Res. 1514, which – incidentally – called for speedy and unconditional, not immediate and unconditional, end to colonialism). Furthermore, Resolution 242 – as it was interpreted and applied in subsequent Security Council Resolutions and in the Oslo Accords (which the parties continue to regard as de facto governing their relations) – tied the realization of the Palestinian right to self-determination and the end of Israeli occupation of Palestinian territories to Israel’s right to “live in peace within secure and recognized boundaries free from threats or acts of force.” These latter rights to peaceful co-existence and not to be subject to acts of aggression – which are also central under international law – have not been legally negated or forfeited by Israel’s violations of international law in the occupied territories. As a result, the Palestinian right to self-determination needs to be realized in a manner that does not abrogate them, or that, at least, attempts to reconcile with them. This is especially so, since Israel’s rights also appear to be predicated on the prevention of jus cogens violations involving the use of force.
We are of the view that, both as a practical and legal matter, bringing to end Israeli violations that deny Palestinian self-determination would need to coincide with the introduction of security guarantees that would protect Israel’s legal rights – either negotiated in good faith by the parties (cf. Gabčíkovo-Nagymaros case) or decreed by the Security Council (as it has sought to do, albeit unsuccessfully, in Resolution 1701 that ended the 2006 Israel-Hezbollah war in Lebanon). We note, in this regard, that calls to the Court to underscore the need for negotiations over the concrete manner in which the Palestinian right to self-determination would be realized in light of Israel’s security and peaceful existence interests were made during the oral proceedings by a few participating States (see e.g., US oral submissions at pp. 49-50, Japan oral submissions at p. 45, Zambia, pp. 20-24).
Another complication factor, which is relevant to analyzing the legal consequences of the illegality of Israel’s policies and practices, is the fact that Israel has its own sovereignty claims regarding parts of the territory which the international community views as the OPT (see e.g., GA Res. 77/126). Although there is a broad international consensus around the proposition that the two-state solution should be implemented on the basis of Israel’s 1967 borders (see e.g., Oman oral submissions at p. 33, UK oral submissions at p. 22), such political consensus cannot, in of itself, bestow title to territory where none exists under international law, or remove title over territory where such title legally exists.
The question of legal title over the territories occupied by Israel in 1967 from Jordan and Egypt, is complex and exceeds the scope of this article (for different views on the competing Israeli and Palestinians claims, see e.g., here and here). It may involve, for example, a difference in treatment of areas where there was significant Jewish presence pre-1948 (e.g., the Jewish Quarter of Old Jerusalem or Gush Etzion) and areas which Israel has unilaterally withdrawn from (e.g., the Gaza Strip). Yet, acceding to the demand for immediate, total and unconditional withdrawal might effectively result in the rejection of Israel’s legal claims pertaining to parts of the territories. In order to do so, the Court would have to shift some of the focus of the proceedings from a review of Israel’s policies and practices in the occupied territories to a review of competing sovereignty claims over different parts of the occupied territories, notwithstanding the fact that such matters were not properly argued during the advisory proceedings (and arise only incidentally from the request for an advisory opinion). This would arguably require the Court to engage in a detailed analysis of the historical events in Eretz Yisrael/Palestine in a manner that would exceed the short historical survey found in the 2004 Wall advisory opinion (note that those earlier proceedings dealt with the legality of specific measures undertaken in parts of the occupied territories and not with the more far-reaching question of the legality of presence in all of the occupied territories; incidentally, the limited treatment of the sovereignty issues in the Wall opinion was also not based on proper legal argumentation, given Israel’s limited participation in those earlier proceedings as well).
By contrast, a negotiated settlement could conclusively resolve the territorial (and other) dimensions of the Israeli-Palestinian conflict. This is why Resolution 242 (in which the position on the extent of withdrawal required is infamously ambiguous; but see here and here) calls for an agreement leading to “termination of all claims” and the acknowledgement of “secure and recognized boundaries.” This is also why the Oslo Accords envisioned final status negotiations over borders. In this respect, the case of the Israeli occupation is different from cases of decolonization (covered by Resolution 1514) or termination of League of Nations mandate (addressed in the 1971 Namibia advisory opinion), where the foreign power had no plausible sovereignty claim to any part of the territory in question. It is also different from the Chagos case, where the legal dispute underlying the competing sovereignty claims was relatively simple and properly argued before the Court. We note that a few States indeed suggested to the Court to proceed cautiously in applying its advisory powers in light of the dispute over Israel’s sovereignty claims (see e.g., Israel written submissions, p. 3, UK oral submission p. 22; Fiji pp. 22-24).
Finally, the fact that Israel’s policies and practices in the occupied territories have dramatically changed the reality on the ground raises questions relating to the application of the 1928 Chorzów Factory formulation of “reparation” — as a remedy that “must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” — to all of Israel’s international law violations. It is interesting to note that, in somewhat comparable circumstances, the European Court of Human Rights opined in the 2010 Demopoulos case (involving Northern Cyprus), that “the Court finds itself faced with cases burdened with a political, historical and factual complexity flowing from a problem that should have been resolved by all parties assuming full responsibility for finding a solution on a political level. This reality, as well as the passage of time and the continuing evolution of the broader political dispute must inform the Court’s interpretation and application of the Convention which cannot, if it is to be coherent and meaningful, be either static or blind to concrete factual circumstances.” (The judges also suggested there that “[i]t cannot be within this Court’s task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention.”)
One relevant “reality” which the ICJ might need to consider in this regard is the tense security situation in the region, which renders practically impossible a unilateral withdrawal of Israeli forces from the occupied territories without putting in place security guarantees for the many tens of thousands of Israeli citizens who would remain under Palestinian control or, alternatively, swiftly evicting those citizens (including those who hold valid titles to private land, sometimes predating 1948). The situation could become particularly dangerous for any citizens left behind (as well as for citizens in Israel proper), if a unilateral withdrawal from the West Bank would lead to a power vacuum that would be filled, like in the case of the Gaza Strip, by Hamas or another extremist group.
The long duration of the occupation and the dramatic changes in the status quo over the years lend additional support for a negotiated settlement, which could entail some land swaps (see e.g., UK oral submission p. 22), concrete security arrangements and/or realistic timelines for the orderly eviction of unlawful settlements. However, the “immediately, totally and unconditionally” formula leaves no room for such closely-tailored practical solutions and alternative remedies.
While the Court is expected to find key Israeli policies and practices in the territories occupied in 1967 unlawful under international law and at odds with basic international legal principles – first and foremost, the right of Palestinians to self-determination – we believe that it would be wise for the Court to proceed with great care when developing its approach to remedies in the part of the opinion dealing with the legal consequences flowing from the illegality of the situation. Despite the frustratingly long duration of the conflict and the occupation, the many serious international law violations we have seen over the years and the inability of the parties to negotiate in good faith a comprehensive peaceful settlement, the complex aspects of the conflict discussed above (which might be partly responsible for its seemingly intractable nature) – security considerations, competing title claims and changing reality on the ground – all strongly militate in favor of continuing to push for a negotiated settlement, which will address the full legal, political, security and practical dimensions of the conflict. Such a negotiated settlement can be reached bilaterally or multilaterally, and a political body like the Security Council can play a key part in establishing the terms – as the Council already started doing 57 years ago, when passing Resolution 242 – including the relevant timelines for expected outcomes.
All of this does not suggest, by any means, that there is no important role for international law in shaping the outcome of negotiations, as well as the positions of the parties to the conflict, third States, and UN bodies. The “just and lasting peace” formula envisioned by Resolution 242 should be read as broadly compatible with international law, including with the Palestinian right to self-determination and Israel’s right to peaceful existence. Furthermore, the duty of the parties to negotiate in good faith concrete modalities for realizing their respective rights and for obtaining reparations for past violations is also governed by international law. The path forward should be closely monitored by UN bodies, most obviously the Security Council, and other interested third States, who should insist on speedy and effective timeframes, and be ready to step in and quickly remove logjams in the negotiations or adopt other necessary measures. In its advisory opinion, the ICJ can make a concrete and positive contribution to such a negotiation process, inter alia, by elucidating the legal rights of the parties, which the negotiations should seek to implement, and the different responsibilities of international institutions and third party States toward efforts to settle the Israeli-Palestinian conflict in accordance with international law.
This article was published in Just Security.