Another Brick in the Wall? The ICJ Advisory Opinion on Israeli Policies and Practices in the Occupied Palestinian Territory
The ICJ Advisory Opinion on Israel's policies in the territories of the West Bank (Judea and Samaria) are illegal but was more divided on other salient factual and legal findings.
Photo by: ICJ
On July 19, the International Court of Justice (ICJ) rendered its advisory opinion on the Legal Consequences Arising From the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem. The 83-page opinion offered a detailed response to two questions presented to the court by the UN General Assembly relating to legal consequences arising from alleged violations of international law by Israel in the territories it occupied after 1967. The ICJ issued the opinion on a relatively short timeline: The General Assembly requested it on Dec. 30, 2022; 57 written statements by states and international organizations were submitted to the court in July and August 2023; and the court heard oral arguments in February 2024 (which included participation from 53 states and intergovernmental organizations). It is also notable that the opinion was adopted by a relatively large majority—some operative parts of the opinion were adopted unanimously, and others by a majority of 11 or more of the court’s 15 judges. Still, a closer look at the separate opinions and declarations of individual judges (all judges but one—Judge Dalveer Bhandari—wrote separately) reveals deep disagreement underlying the consensus about many factual and legal aspects of the opinion.
The opinion is very broad in scope and contains many interesting, at times controversial, factual and legal findings. It represents the first time an international tribunal of the stature of the ICJ has taken a comprehensive look at Israel’s policies and practices in the areas the international community refers to as the occupied Palestinian territories (OPT).
The court concluded unequivocally that Israel’s policies and practices in the OPT are unlawful under the law of occupation (para. 245):
Israel has adopted certain policies and practices which are not in conformity with the legal régime governing occupation. Moreover, ... Israel’s policies and practices, including its continued expansion of settlements, are designed to establish facts on the ground that are irreversible, which entrench the annexation of large parts of the Occupied Palestinian Territory and impede the exercise of the right to self-determination by the Palestinian people[.]
Only Vice-President Julia Sebutinde distanced herself in her dissent from this finding. Yet, contrary to its clear position on the illegality of Israel’s policies and practices, the discussion of the legal consequences of this illegality in the main opinion and in the separate opinions and declarations was much more nuanced and legally ambiguous.
At the heart of the opinion is the holding that, as a result of the illegality of Israel’s policies and practices, Israel’s continued presence in the OPT is illegal because it violates two key principles of international law—the prohibition on acquisition of territory by force and the right to self-determination (para. 261):
The Court considers that the violations by Israel of the prohibition of the acquisition of territory by force and of the Palestinian people’s right to self-determination have a direct impact on the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory. The sustained abuse by Israel of its position as an occupying Power, through annexation and an assertion of permanent control over the Occupied Palestinian Territory and continued frustration of the right of the Palestinian people to self-determination, violates fundamental principles of international law and renders Israel’s presence in the Occupied Palestinian Territory unlawful.
This conclusion builds on the court’s 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, where the court found that Israeli practices around the separation barrier constituted de factoannexation and violated the Palestinian right to self-determination. This time, however, the court added another layer to the analysis—another brick in the wall, if you wish—and reviewed a broader swath of Israeli policies and practices in the OPT, relating to the prolonged occupation, settlement policy, de facto and de jure acts of annexation, and the disparate treatment of Israelis and Palestinians. The court found these policies and practices to be in violation of the prohibition on acquisition of territory by force and the right to self-determination, as well as in violation of specific provisions of international humanitarian law and international human rights law.
A majority of the court found that Israel’s continued presence in the OPT is unlawful given the sustained nature of the violations, including of fundamental principles of international law. But some judges did not agree that past and ongoing violations of its international law obligations implied that Israel’s continued presence in the OPT was illegal. Judges Peter Tomka, Ronny Abraham, and Bogdan Aurescu dissented on this very point, writing in paragraph 22 that finding Israel’s policies and practices to be illegal did not necessarily mean that the occupation was itself illegal. In fact, they criticized the other judges for failing to adequately explain the leap from one finding to the other.
In other words, according to the dissenting judges, it is far from obvious that a finding regarding the illegality of policies and practices of the Israeli occupation necessarily dictates the conclusion that the very continuation of its presence in the OPT is also unlawful. This is especially the case when unilateral withdrawal could result, as the three judges suggested is true in Israel’s case, in exposure to substantial security threats (para. 36). The obvious remedy in such a case, would appear to be the discontinuation and/or reversal of illegal policies and practices that exceed what is permissible under the laws of belligerent occupation, without necessarily addressing the legality of the belligerent occupation as a general matter itself (para. 27).
Importantly, and as Judges Georg Nolte and Sarah Cleveland note, the court refrained from addressing the question of whether Israel’s initial occupation of the OPT in 1967 was lawful (para. 4). Consequently, the court draws a distinction between the illegality of the continued presence of Israel in the OPT—which is a key legal holding of the case—and the illegality of the occupation of the OPT—on which it did not explicitly rule. This distinction appears to be a nod toward the United States’s argument that belligerent occupation is a matter of fact—reflecting a situation of effective control over foreign territory. It does not become unlawful by virtue of its duration or due to violations of occupation law.
Though a large majority of the Court—11 of 15 judges—concluded that the continued presence of Israel in the OPT is illegal, they provided different reasons for reaching that conclusion. As a result, it remains unclear what specific legal reasoning the court employed to explain why violations of the law of occupation transform a potentially lawful occupation to unlawful continued presence (another commentator described this as a “substantial gap in the Court’s reasoning”).
Judges Nolte and Cleveland, for example, alluded to the abuse of right doctrine (para. 8):
[T]he presence of occupying forces can only be justified by a credible link to a defensive and temporary purpose; in our view, therefore, any possible justification is necessarily lost if such a presence is abused for the purpose of annexation and suppression of the right to self-determination. … [W]hen the presence of occupying forces becomes a vehicle for achieving annexation, the occupying Power violates the prohibition of the acquisition of territory by force under the jus ad bellum and thereby loses any possible justification for the presence of its forces, including on the basis of the right of self-defence.
In other words, the apparent dominance of non-security considerations, like annexation, undermines Israel’s ability to continue to rely on security as justification for the occupation. The court’s opinion also refers to the notion of “sustained abuse,” suggesting agreement with Nolte and Cleveland’s approach.
For judges Hilary Charlesworth and Abdulqawi Yusuf, however, the critical issue appears to be the outer limits of self-defense. They state that Israel’s prolonged occupation fails to meet conditions of necessity and proportionality under jus ad bellum (regarding belligerent occupation as a form of use of force that needs to be continuously justified under that body of law), and in the absence of an alternative legal justification for its belligerent occupation, Israel’s military presence in the OPT became illegal by default. For judges Xue Hanqin and Dire Tladi, a key factor is the peremptory nature of the Palestinian right to self-determination—which they say is incompatible with prolonged occupation—and not necessarily any specific feature of the Israeli occupation regime (compare with Cleveland, para. 33). By contrast, judge Sebutinde (who voted against all operative clauses but one) was of the view that international law does not prohibit a prolonged occupation pending the conclusion of a peace treaty.
Israel had attempted to justify its continued presence in the OPT by reference to two main points: its ongoing security concerns and competing sovereignty claims. It does not seem that the court gave much weight to these arguments. The opinion simply maintained that “Israel is not entitled to sovereignty over or to exercise sovereign powers in any part of the Occupied Palestinian Territory on account of its occupation. Nor can Israel’s security concerns override the principle of the prohibition of the acquisition of territory by force” (para. 254).
With respect to the security concerns, the judges again expressed a range of views. Charlesworth and Tladi wrote in their separate opinions that security concerns, which do not amount to grounds for use of force under jus ad bellum, can never justify use of force in the form of continued occupation and deprivation of self-determination. (We note that this approach seems to fly in the face of historic examples of prolonged occupations pending the conclusion of a peace agreement, including the post-World War II occupation of Germany and Japan, and of the approach taken by Security Council Resolution 242, which introduced a “land for peace” formula following the 1967 War.) Others, including Nolte and Cleveland, were more sympathetic to the invocation of security considerations but opined that such considerations must be employed in a reasonable and credible manner.
Broadly, when reading the opinion of the court and the separate opinions and declarations, it appears that most judges deemed Israel’s security concerns too abstract to justify specific policies, and maybe even pretextual (notwithstanding that the Oct. 7, 2023, attack demonstrated the real possibility of large-scale terror attacks against Israel emanating from territories it unilaterally withdrew from).
With regard to Israel’s sovereignty claims over the OPT, and especially over East Jerusalem, the opinion includes the following additional language (para. 178):
The Court observes, first, that it is not called upon to pronounce on historical claims concerning the Occupied Palestinian Territory; and, secondly, that no information has been provided to the Court to substantiate such claims. In any event, the prohibition of the acquisition of territory by force entails that the use of force is not a means for resolving claims of sovereignty.
This is a questionable proposition. A sovereign title claim is relevant, by definition, to questions of occupation, since an occupation of one’s own sovereign territory does not objectively qualify as belligerent occupation (see opinion, para. 90). It is, therefore, far from clear why the court was not called upon to review this point, which clearly serves as the basis of many of Israel’s policies and practices. Still, the court’s complaints about a lack of information regarding sovereignty claims (and Judge Nolte’s comment in para. 7 of his separate opinion that the relevant security concerns were regrettably not fully argued by Israel) does draw attention to the unfortunate implications of Israel’s decision not to fully participate in the proceedings—which we regret. Israel’s very short allegation of its historical ties to the area, in its written submission, apparently did not serve as a sufficient basis for substantiating Israel’s sovereignty claims before the court. And although the court could have made a greater effort to investigate and evaluate the claims (as Vice-President Sebutinde did in para. 67-79 of her separate opinion), Israel could also have done a better job making its own case.
The court’s position regarding the illegality of Israel’s continued presence in the OPT is not so surprising, given that the court had already articulated its strong opposition to Israel’s practices and policies of de facto annexation and violation of the Palestinian right to self-determination in the Wall opinion. But it was less predictable how the court would rule on the question of remedy. In an earlier article (from March), we expected the court to find key Israeli policies and practices in the OPT unlawful and urged 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.” This is because we were of the view that the remedial part of the opinion should strive to reflect the legal and factual complexities of the Israeli-Palestinian conflict in order to render this pronouncement of international law a useful vehicle for positive change of the reality on the ground.
The opinion deals with four important dimensions of questions of remedies: the time frame, the extent to which they involve full restitution, any conditionalities attached to remedies, and the modalities for implementing them.
On the question of timing, the legal representatives of Palestine advocated during the oral submissions for the following formulation: “The only solution consistent with international law is for this illegal occupation to come to an immediate, unconditional, and total end.” This position generally follows the 1971 Namibia advisory opinion, in which the court held that “the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory” (para. 133).
But the court adopted a slightly modified formulation: “[T]he State of Israel is under an obligation to bring to an end its unlawful presence in the Occupied Palestinian Territory as rapidly as possible” (para. 285; emphasis added). This formulation calls on the approach of the court in the Chagos advisory opinion (para. 183). The choice of one formulation over the other is clearly not accidental—as noted by Judges Nolte and Cleveland (para. 16):
Notably, the Court did not adopt the formulation urged by some participants that Israel must end the occupation “immediately, totally and unconditionally”. The Court’s wording recognizes that there are significant practical issues that would make an “immediate” withdrawal and cessation of some aspects of Israel’s presence not possible. Moreover, Israel’s duty to end its presence does not mean that its duty to withdraw from the Occupied Palestinian Territory must necessarily be fulfilled in the same way, or at the same time, with respect to every part of that territory. While the duty to withdraw “as rapidly as possible” applies as a general matter, this duty nevertheless may be implemented differently depending on the situation that prevails in a particular part of the occupied territory.
The reference by Nolte and Cleveland to significant practical issues that may prevent immediate withdrawal may also explain the court’s position on another aspect of the remedial question—the choice between restitution and compensation as alternative forms of reparation. The opinion cites the famous Permanent Court of International Justice Chorzów Factory dicta, according to which restitutio ad integrum(full restitution) is the preferred form of reparation—“reparation 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.” But the court also appears to have left the door open for remedies other than restitution.
First, the court seems to indicate that Israel must provide restitution (para. 270):
Restitution includes Israel’s obligation to return the land and other immovable property, as well as all assets seized from any natural or legal person since its occupation started in 1967, and all cultural property and assets taken from Palestinians and Palestinian institutions, including archives and documents. It also requires the evacuation of all settlers from existing settlements and the dismantling of the parts of the wall constructed by Israel that are situated in the Occupied Palestinian Territory, as well as allowing all Palestinians displaced during the occupation to return to their original place of residence.
However, the immediately following paragraph (para. 271) qualifies this proposition and raises the possibility of affording compensation instead:
In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons, and populations, where that may be the case, having suffered any form of material damage as a result of Israel’s wrongful acts under the occupation.
Still, this formulation is narrower in scope—and perhaps less judicious—than that used by the European Court of Human Rights (ECHR) in the Demopoulos case, which dealt with the Turkish occupation of Northern Cyprus. In that case, the ECHR cautioned against a sweeping restitution obligation that would ignore the position of third parties, such as private landowners, and result in forcible eviction of large numbers of private individuals (para. 116).
The third aspect of the treatment of remedies in the opinion involves the issue of conditionalities attached to them. While the court refrained from adopting Palestine’s proposed language mandating Israel’s unconditional withdrawal, it also did not insist on a linkage between Israeli withdrawal and the security guarantees Israel receives in the same way such linkage appears in Security Council Resolution 242. That resolution ties withdrawal from territories to “termination of all claims or states of belligerency” and recognition of Israel’s right to “live in peace within secure and recognized boundaries free from threats or acts of force.” Instead, the court merely noted in paragraph 283 that a Palestinian “independent and sovereign State, living side by side in peace with the State of Israel within secure and recognized borders for both States” would contribute to regional stability and security.
Some judges rebuked this aspect of the opinion. The joint opinion of Tomka, Abraham, and Aurescu (para. 42) sharply criticized the court for ignoring the key terms of the Resolution 242 peace and security “package” that undergirded specific international law sources most relevant to the Israeli-Palestinian conflict, including the Oslo Accords.
Several other judges also wrote that the full realization of Palestinian self-determination must be linked to Israel’s security concerns (see, e.g., Yūji Iwasawa, para. 20; Cleveland, para. 2; Sebutinde, para. 81; and Tomka, para. 8). Such a linkage might have also been hinted at in the reference to the prevailing situation in different parts of the OPT in the aforementioned para. 16 of the joint declaration by Nolte and Cleveland. (But see in support of delinking self-determination and security, Tladi, at para. 51-53.)
In the same vein, the court appears to backtrack from the need to implement the terms of withdrawal through a negotiated framework, as envisioned in Resolution 242 and the Oslo Accords. The court accepted that the parties may negotiate a settlement (para. 278) but did not call on them to do so in the context of implementing their legal obligations. Instead, it concluded that the political process should occur under the auspices of the UN General Assembly and Security Council.
It seems that the court no longer views direct negotiations between Israel and Palestine as the most efficient way to achieve a settlement of the Israeli-Palestinian conflict. The long-standing political deadlock around final status negotiations pursuant to the Oslo Accords, and the current Israeli government’s hawkish designs toward the OPT, may have left many judges disillusioned about the viability of bilateral direct negotiations. Still, some of the judges appear to have taken a different approach in their separate opinions, where they alluded to the need for a negotiated arrangement (joint opinion of Tomka, Abraham, and Aurescu, para. 42; Iwasawa, para. 20; Sebutinde, para. 28; joint declaration by Nolte and Cleveland, para. 6).
One surprising—and, in our view, problematic—aspect of the court’s opinion is its treatment of the Gaza Strip. The Israeli policies and practices at issue in this case were of little current relevance for the Gaza Strip, from which Israel actively withdrew and dismantled its settlements in 2005. Nonetheless, the court chose to encompass the Gaza Strip within the scope of the advisory opinion, considering its legal findings on legal consequences to be applicable throughout the entirety of the OPT, including in the Gaza Strip. But it is less clear how the opinion’s analysis applies in Gaza (note that the court did not consider in a detailed manner developments in the Gaza Strip post Oct. 7, since it said the request for an advisory opinion predated them [para. 81]). Indeed, Judge Cleveland sharply criticized the court’s approach in this regard (para. 16-17).
In order to support its choice to treat the Gaza Strip like the rest of the OPT, the court found it necessary to opine on the application of the law of belligerent occupation to Gaza after the Israeli withdrawal from the Gaza Strip in 2005 (see para. 90). The court reaffirmed the traditional conditions underlying situations of occupation established in Article 42 of the 1907 Hague Regulations, customary international law (as reflected in sources such as the Hostages case), and in its own case law (Congo v. Uganda). These conditions include the occupier’s “capacity to enforce its authority, including by making its physical presence felt within a reasonable time.” Still, it applied these tests to the Gaza Strip in an unclear and unpersuasive manner (para. 93):
Based on the information before it, the Court considers that Israel remained capable of exercising, and continued to exercise, certain key elements of authority over the Gaza Strip, including control of the land, sea and air borders, restrictions on movement of people and goods, collection of import and export taxes, and military control over the buffer zone, despite the withdrawal of its military presence in 2005. This is even more so since 7 October 2023.
In particular, the analysis by the court ignores the distinction between situations of occupation and situations of siege. There is a vast gap between the “making its physical presence felt within a reasonable time” standard and the actual post-2005 conditions on the ground in Gaza, where Hamas and not Israel exercised virtually all forms of public authority inside the Gaza Strip, and where it required a long and difficult full-scale military invasion by Israel in order to regain some degree of control over some parts of the territory. It is not clear on what basis the court found that Israel had the capacity to assert effective control inside the Gaza Strip before the events of Oct. 7. This finding also deviates without clear explanation from the court’s far more rigid approach to the applicability of the law of occupation in Congo v. Uganda.
Furthermore, it is not even clear whether the court found, as a positive matter, that the Gaza Strip remained occupied in whole or in part, as opposed to finding that certain obligations derived from the laws of belligerent occupation remain applicable to Israel in relation to the Gaza Strip (see Iwasawa, para. 8: “[The Court] does not take a position as to whether Gaza remained ‘occupied’”).
Another controversial aspect of the opinion involves the allegation that Israeli policies and practices in the OPT violate the international law prohibition against apartheid. Here, we think that the court applied a more careful approach than the one it applied with regard to the status of the Gaza Strip. It considered the allegation and found that the policies and practices violate Article 3 of the Convention on the Elimination of all forms of Racial Discrimination (CERD)—which bans both racial segregation and apartheid—without explaining which of the two categories has been violated or, in other words, whether the special intent required to transform racial segregation to apartheid had been met (para. 229). A close review of the separate opinions reveals that the judges disagreed again—suggesting that the opinion’s final language represented a careful compromise between the majority judges. (Tladi, para. 39-41, Leonardo Nemer Caldeira Brant, para. 7-11, and Nawaf Salam, para. 20-32, were open to making a finding of apartheid; Iwasawa, para. 12-13, and Nolte, para. 12-19, were not.)
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Despite some of its legal shortcomings, the advisory opinion does appear to clearly reflect some basic aspects of contemporary international law—such as the centrality of the principle of self-determination and the prohibition against acquisition of territory by force—and the need to refrain from abusing belligerent occupation law in order to advance unlawful purposes. The opinion also shows a healthy degree of prudence in some important respects—for example, the designated timeline for withdrawal and the reluctance to wade too deeply into the politically explosive charge of apartheid. Still, the opinion highlights the drawbacks of a process that is not adversarial in nature, where the court does not actually have full access (despite the assurances it provided in para. 45-47 of the opinion) to critical facts and legal arguments. At the same time, although Israel was not legally obliged to fully cooperate with the proceedings, its decision to limit the scope of its participation may have been counterproductive and transformed a challenging legal situation from bad to worse.
The key question remains whether the opinion will positively contribute to political settlement of the Israeli-Palestinian conflict—a task whose urgency cannot be overstated. As we have written previously:
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.
This article was published in LawFare.