Advisory Opinion of the International Court of Justice on the Legal Consequences of Israel's Policies and Practices in the "Occupied Palestinian Territory"

An in-depth analysis of the advisory opinion of the ICJ on the legal consequences of Israel's policies and practices in the 'occupied Palestinian territory.'

On July 19, 2024, the International Court of Justice (ICJ) issued an "Advisory Opinion" following a request submitted by the United Nations General Assembly. This opinion examines the legal consequences of Israel's policies and practices in the "Occupied Palestinian Territory, including East Jerusalem." The advisory opinion includes fundamental legal determinations regarding Israel's presence and activities in Judaea and Sameria / the West Bank and East Jerusalem, its settlement policy, and the rights of Palestinians in these areas.

Questions Addressed to the Court:

According to the UN Charter, certain UN organs may request that the ICJ give an "advisory opinion" on any legal question. On December 30, 2022, the UN General Assembly adopted resolution A/RES/77/247, requesting that the ICJ give an advisory opinion on the legal consequences arising from the “ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967… and from its adoption of related discriminatory legislation and measures,” and on the implications of the abovementioned policies and practices on the “legal status of the occupation.”

During the proceedings, the ICJ invited states and international organizations to submit their positions regarding the UN General Assembly request. Fifty-seven states (including "Palestine") and international organizations (including the Arab League and the Organization of Islamic Cooperation) did so. Additionally, in February 2024, the ICJ held a week of public hearings, during which representatives from 49 countries and three international organizations presented their positions. Israel submitted a brief position paper on July 24, 2023, arguing why the ICJ should reject the request for an advisory opinion in this case, without addressing the substantive claims against it.

The Approach Taken by the Court:

On July 19, 2024, the ICJ published its advisory opinion on the Legal Consequences of Israel's Policies and Practices in the "Occupied Palestinian Territory." Before detailing the Court’s answers to the questions submitted to it, we highlight some general insights into the Court's approach:

• As in previous cases, the ICJ took a broad approach as to its jurisdiction and discretion in addressing the questions put before it. After unanimously deciding it had jurisdiction over the questions posed by the General Assembly, as it considered that these questions are "legal questions" within the meaning of the UN Charter and the ICJ Statute, the Court examined whether there were compelling reasons that may lead it to refuse to exercise its judicial function. Israel, along with several other states, argued that such reasons do exist, claiming, for instance, that Israel has not consented to the jurisdiction of the Court and that doing so could harm negotiations between Israel and the Palestinians. The Court decided by a majority of 14 votes to one (Vice-President Judge Julia Sebutinde) to comply with the request for an advisory opinion, as there were no compelling reasons to refrain from ruling on the questions posed by the General Assembly.
• The ICJ sought broad consensus among its judges, often by adopting ambiguous rulings or compromise positions. Of the Court’s fifteen judges, most decisions were made by a relatively large majority of 11, 12 or 14 judges (including Judges Cleveland (the US), Nolte (Germany), Charlesworth (Australia) and Iwasawa (Japan)). To achieve a significant majority on certain issues, the Court sometimes used ambiguous language. For example, regarding whether Israel’s policies and practices amount to apartheid, the Court stated that Israel violates the prohibition on racial segregation and apartheid set in the Convention on the Elimination of All Forms of Racial Discrimination (CERD), but did not specify which elements of the article Israel violated. In separate declarations they published, some of the majority Judges explicitly state that Israel is implementing an apartheid policy, while others assert that the Court did not make such a determination or that there is no basis for such a claim.
• The ICJ addressed Israel's long-standing policies in the West Bank—such as application of Israeli law in East Jerusalem—but it is clear that the current government's policies had a significant impact on the advisory opinion. For example, the Court notes in several instances that since the end of 2022, Israel has transferred decision-making authority regarding civil affairs in Area C from the military to the political echelon - to a civilian minister in the Ministry of Defense (Bezalel Smotrich). The Court also expresses concern about the significant pace of the expansion of existing settlements during the current government's tenure.
• The ICJ almost completely ignored Israel's claims to sovereignty in the West Bank and its security considerations. It noted that no information was provided on these claims (implicitly referencing the fact that Israel did not present its claims as to the substance of the case before the Court) and that in any case, acquiring territory by force to resolve such claims is prohibited. Similarly, the Court gave little weight to Israel's security considerations, despite the fact that Security Council Resolution 242, mentioned by the Court, emphasizes that security considerations underpin some of Israel's policies in the West Bank. Some of the majority Judges, and the minority Judges, stated that it would have been appropriate to examine Israel's security concerns more thoroughly. Several Judges regretted that Israel did not cooperate more significantly with the Court to elaborate on these concerns. Incidentally, it is worth noting that these references by the majority and minority judges to Israel's security considerations raise the question of whether Israel could have led to a more balanced approach by the Court had it taken a more significant part in the proceedings before the Court and presented its arguments more comprehensively, including on the substantive issues.
• The ICJ acknowledged the relevance of the Oslo Accords but did not take a uniform approach in the significance it assigned to the Accords. While the Court referred to the Oslo Accords in order to support some of its findings, it did not hesitate to make rulings that contradict the agreements.

Legal Determinations in the Advisory Opinion - How Did the Court Rule on the Questions Before It and What Obligations Did It Impose on Israel?

1. Israel's Continued Presence in the West Bank and East Jerusalem is Unlawful, and Israel Must Bring to an End its Presence in these territories "as Rapidly as Possible":

The ICJ ruled by a majority of 11 votes to four (Vice-President Sebutinde; Judges Tomka, Abraham and Aurescu) that Israel's continued presence in the West Bank and East Jerusalem is illegal under international law, and that Israel must end its presence in these territories "as rapidly as possible."

The Court emphasizes that occupation is a temporary situation stemming from military necessity. The mere prolongation of an occupation does not alter its legal status to make it illegal. However, when the occupying state undertakes actions (de jure or de facto) that indicate an intention to establish permanent control over the occupied territory, this can amount to annexation, which violates the prohibition of the threat or use of force and may, in turn, render the continuation of the occupation illegal. This is especially the case when the occupying state takes actions that severely impair the right to self-determination.

The majority of the judges determined that Israel's policies and practices (such as the construction and expansion of settlements and the integration of settlements into the territory of Israel through specially designed civilian infrastructure in the West Bank) indicate Israel's intention to establish permanent control in East Jerusalem and the West Bank, particularly in Area C, and to create an irreversible effect on the ground. As a result, they assert that these actions amount to the annexation of large parts of these territories, which constitutes an illegal attempt to acquire territory by force, and that such actions also violate the Palestinians' right to self-determination (see further details on this matter below). It should be noted that the Court did not determine that the Israeli presence in the West Bank was illegal from the outset or when it became illegal.

It is important to note that under this operative clause, the Court uses the language "as rapidly as possible" (a formula used by the ICJ in its 2019 advisory opinion on the UK's control of the Chagos Archipelago), a formula that is more reserved than that used by the Court in its 1971 advisory opinion on South Africa's control of Namibia ("immediately"). This is despite the Palestinian request for an immediate, unconditional, and total end to the occupation. This was further developed in some of the majority Judges’ separate statements and opinions: Judge Iwasawa wrote that Israel is not required to withdraw all its forces immediately and unconditionally; Judges Cleveland and Nolte wrote that this obligation could be implemented differently in various parts of the territory depending on the situation prevailing there.

The minority judges strongly disagreed with the conclusion of the majority opinion, according to which Israel's violation of its obligations as an occupying state made its very presence in the territory illegal. The position of the minority judges is that it is difficult to determine that the occupation itself has become illegal.

2. Israel's Settlement Policy is Illegal, and Israel Must Cease Immediately All New Settlement Activities and Evacuate All Settlers from the West Bank and East Jerusalem:

The ICJ ruled that Israel's settlement policy in the West Bank and East Jerusalem, including the establishment and support of settlements and the regime that surrounds them, constitutes a violation of international law. Operatively, the ICJ decided by a majority of 14 votes to one (Vice-President Sebutinde) that Israel must immediately cease all new settlement activities and evacuate all settlers.

In this regard, the Court refers, inter alia, to Israel's encouragement of Israelis to move to the occupied territory, contrary to the prohibition on transferring the population of the occupying state to this territory. It also addresses Israel's illegal expropriation and seizure of land for settlements, Israel’s unlawful use of natural resources in the occupied territory, the application of Israeli legislation in the occupied territory, the forced removal of Palestinians from Area C and the violence against Palestinians resulting from Israel's settlement policy.

3. The Régime of Comprehensive Restrictions Imposed by Israel on Palestinians in the Occupied Territory Constitutes Systemic Discrimination, but Does Not Necessarily Violate the Prohibition on Apartheid:

The ICJ concluded that Israel systematically applies discriminatory legislation and measures based on religious, racial, or ethnic origin towards Palestinians in the West Bank and East Jerusalem (including infringing on the freedom of movement of Palestinians and the demolition of Palestinian homes in a discriminatory manner and for punitive reasons), without legitimate justification and in some cases for the purpose of promoting annexation. By doing so, Israel’s legislation and measures constitute a breach of specific articles set in several human rights treaties.

The Court further determined that Israel implements segregation between Palestinians and Israelis in the West Bank and East Jerusalem. This segregation is primarily physical: settlement policies create isolated enclaves of Palestinian communities, Palestinians require permits to live in certain areas, and there are separate road systems that keep Palestinian communities physically separated from each other and from settler communities. Additionally, this segregation is also juridical, as Israel applies a different legal system to Palestinians in the West Bank and East Jerusalem compared to Israelis. The Court thus concludes that Israel implements near complete separation between Palestinians and Israelis, violating Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which prohibits racial segregation and apartheid. However, the Court does not specify which components of the article Israel violates. Notably, the Court did not explicitly determine that Israel commits apartheid, and the separate statements and individual opinions of the judges reveal disagreements on this matter.

4. Israel Violates the Palestinians' Right to Self-Determination:

The ICJ clarified that the right to self-determination is one of the fundamental principles of international law and that the right to self-determination of the Palestinian people includes the right to territorial integrity in all of the “Occupied Palestinian Territory.”

After examining Israel's policies and practices affecting certain aspects of the right to self-determination, the Court concludes that Israel has long enforced policies and practices that exacerbate its violation of the Palestinian people's right to self-determination. As previously mentioned, the Court rules that the significant infringement on the Palestinians' right to self-determination, combined with the creation of a situation of permanent Israeli control over the occupied territories (as described above), renders Israel's prolonged presence in these territories unlawful.

5. Israel Must Make Reparation for the Damage Caused:

The ICJ states in the majority opinion of 14 votes to one (Vice-President Sebutinde) that Israel is obligated to make reparations for the damage caused to all the natural or legal persons concerned in the "Occupied Palestinian Territories." According to the Court, such reparations would primarily be carried out through restitution, including by returning the land, immovable property, assets and cultural property seized and taken since its occupation started in 1967. However, if this is not materially possible, Israel is obligated to compensate for the damage caused.

6. Israel’s Obligations Under the Law of Occupation in the Gaza Strip Corresponds to Its Ability to Exercise Elements of Authority over the Territory:

The Court’s reference to the Gaza Strip raises several questions. The Court determined that the General Assembly's request for an advisory opinion from December 2022 did not pertain to future events, thus deciding not to examine Israel's actions during the current war in Gaza (the "Swords of Iron" war). However, despite the fact that the substantive issues at the center of the advisory opinion, including the settlement and annexation policies and practices, are not relevant to the Gaza Strip, particularly not since the implementation of the disengagement plan in 2005, the Court did not exclude Gaza from its normative and operative determinations that broadly refer to the "Occupied Palestinian Territories." Additionally, the Court states that although Israel fully withdrew its military and civilian presence from the Gaza Strip in 2005, Israel bears obligations under the laws of occupation that are commensurate with the degree of its effective control over the Gaza Strip. In doing so, the court applies the traditional rules of international law as to determine when an occupation exists, as well as its own case law, in an unclear manner. According to these rules and rulings, a condition for occupation is the physical presence of the occupying state in the area in question, with exclusive authority to exercise powers in the occupied territory.

The Court also ignores the fact that the legal justifications for Israel's various aspects of control over the Gaza Strip can be found within other normative frameworks, particularly the Laws of Armed Conflict and the Oslo Accords. This approach by the Court is particularly puzzling following the events of October 7, 2023, which demonstrated the extent of Israel's lack of control over what happens in Gaza. Judge Cleveland, in her separate opinion, sharply criticizes the approach taken by the Court. Judges Tomka, Abraham, Aurescu also criticize this approach in their joint opinion.

At the same time, it is important to note that while the Court states that Israel continues to bear certain obligations under the laws of occupation (without specifying which obligations), it does not formally determine that the Gaza Strip remains occupied by Israel after the implementation of the disengagement plan (Judge Iwasawa clarifies this point in his separate opinion).

 

What Obligations Does the Court Impose on Other States and International Organizations Based on Its Legal Determinations?

1. Other States:

The Court determines by a majority opinion of 12 votes to three (Vice-President Sebutinde and Judges Abraham and Aurescu) that all states are obligated not to recognize as legal the situation resulting from Israel's unlawful presence in the "Occupied Palestinian Territory", nor to assist in maintaining the situation created by Israel's continued presence in this territory.

Furthermore, the Court makes clear that all states are obligated to ensure that any infringement on the realization of the Palestinians' right to self-determination is brought to an end.

The Court further considers that UN Member States are obligated not to recognize any changes in the physical character or demographic composition, institutional structure, or status of the territory occupied by Israel in 1967, including East Jerusalem, unless agreed otherwise by Israel and the Palestinians through negotiation.

Moreover, according to the Court, UN Member States are required to distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territories occupied in 1967. The operational meaning of this distinction is that states are obligated to abstain from treaty relations with Israel in all cases where Israel seeks to act on behalf of the "Occupied Palestinian Territories" in matters related to these territories; to abstain from entering into trade or economic dealings with Israel regarding the "Occupied Palestinian Territories" that might reinforce Israel's presence in these territories; to refrain from recognizing these territories in the establishment or maintenance of diplomatic presence in these areas; and to take steps to prevent trade or investments that assist in preserving the unlawful situation created by Israel in the "Occupied Palestinian Territories."

Finally, the Court stated that all States parties to the Fourth Geneva Convention are obligated to ensure that Israel adheres to its obligations under international humanitarian law.

In a separate statement, President Salam further clarified he considers that unconditional assistance by states to Israel in financial, economic, military, or technological areas would violate their abovementioned obligations.

2. The UN and Other International Organizations:

The Court determined by a majority opinion of 12 votes to three (Vice-President Sebutinde, Judges Abraham and Aurescu) that international institutions, including the UN, are obligated not to recognize the situation resulting from Israel's unlawful presence in the "Occupied Palestinian Territories" as legal. Additionally, the Court asserts that the UN, particularly the General Assembly and the Security Council, should consider the precise modalities and actions required to bring an end as rapidly as possible to Israel's presence in these territories. This determination by the Court can be seen as a call for international organizations to take greater responsibility for resolving the Israeli-Palestinian conflict.

The Possible Implications of the Advisory Opinion

As mentioned, the advisory opinion of the Court is not legally binding on Israel or other states. However, due to the Court’s status as the principal judicial body of the UN, the Court's determinations are often perceived as reflecting an accepted interpretation of international law, and as such, they may influence the legal positions of states and other entities. This is particularly relevant where the Court's determinations are reached by a large majority.

At the same time, the influence of the Court's determinations may also derive from how well-founded and persuasive they are. For example, in this case, while the Court's determination regarding the illegality of the settlements was reached by a large majority (14-1) and reflects a prevalent position in international law, its determination regarding the application of occupation law in the context of the Gaza Strip deviates from the accepted legal interpretation and seems to have a lower level of persuasiveness.

1. Relations with Other States – As mentioned, the Court ruled that states are under obligation not to assist in maintaining the situation created by Israel's continued presence in the "Occupied Palestinian Territories." Accordingly, states might want to reassess their relations with Israel according to the Court's operational guidelines, in order to ensure they do not contribute to Israel's continued control over the West Bank and its settlement policy. For example, states might act to ensure that:

• Weapons approved for sale to Israel are not used in the West Bank, East Jerusalem, or the Gaza Strip;
• Research and cultural grants do not reach institutions operating in the West Bank and East Jerusalem, and academic collaborations are conditioned on the Israeli institutions not having ties to the "Occupied Palestinian Territories”;
• Imports from Israel are labeled to verify their origin, and the import of products from the West Bank and East Jerusalem will not be approved;
• Companies and organizations do not trade with companies in the West Bank and East Jerusalem and do not invest in such companies;
• There is no military and security cooperation with units and organizations operating in the West Bank;
• Sanctions are imposed on those involved in expanding settlements.

Some of the above steps are already being taken today, however, the advisory opinion may speed up their expansion. The advisory opinion may also influence the decisions of national courts in cases related to Israel, such as petitions in various countries against the sale of weapons to Israel.

2. The International Criminal Court (ICC) – The Court's legal determinations may influence the legal positions of other international courts, primarily the ICC. For example, in the 2021 decision that determined the ICC has jurisdiction over the Israeli-Palestinian conflict, ICC judges cited the ICJ’s 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the “Occupied Palestinian Territory,” with regard to the question of the Palestinians' right to self-determination. It is worth noting that one of the  ICC Prosecutor’s lines of investigation is, inter alia, Israel’s settlements policy and related activities. The current advisory opinion of the Court may influence the decision-making of both the Prosecutor and the Judges.

3. Relations with International Organizations – Various international organizations may reconsider their dealings with Israel and ensure that they distinguish between the territory of Israel and the "Occupied Palestinian Territories." For example, in the context of aviation regulation.

4. Activities of Commercial Companies and Other Entities – Even in the absence of binding legal regulation, the advisory opinion may incentivize commercial companies and other public and private entities to exercise greater caution in their relations with Israel. This could be either on their own initiative ("chilling effect") or in response to pressure from civil society organizations (BDS and others).

5. Israel-Palestinian Relations – The proceeding before the Court constitutes another link in the process of the "juridification" and internationalization of the Israeli-Palestinian conflict, which the Palestinians have been promoting internationally for several years now. The advisory opinion and its broad implications may in turn impact Israel-Palestinian relations and further increase political tension between the parties.

It can be expected that the extent and nature of these implications will not become clear all at once but gradually.

What Can the State of Israel Do to Address the Negative Implications of the Advisory Opinion?

The advisory opinion is a significant and very concerning development for the State of Israel, especially in light of its potential implications. In an initial examination, several steps can be considered:

1. Studying the Advisory Opinion – This includes studying both the majority and minority opinions for a deep understanding of the determinations made in the advisory opinion and the scope of interpretation it leaves, in order to conduct constructive discussions with partners and interlocutors.
2. Expressing Substantive Criticism – It is important to avoid criticizing the Court itself.
3. Promoting a "Dialogue" Between the Israeli Supreme Court and the Advisory Opinion – This has already begun in the context of the petition currently before the Supreme Court regarding Israel’s humanitarian aid policy in the Gaza Strip in the context of the war. A similar dialogue that took place two decades ago concerning the legality of the wall in the West Bank helped Israel contain the negative implications of the 2004 advisory opinion.
4. Carefully Mapping the Negative Implications – This includes a detailed mapping of the potential negative implications of the advisory opinion in various areas and attempting to prepare for or address these implications.
5. Reassessing Aspects of Its Policies – Above all, if the State of Israel wishes to reduce the negative implications of the advisory opinion, it seems necessary to reassess various aspects of its policies concerning the West Bank (and potential plans regarding Gaza).

If Israel fails to acknowledge the magnitude of the challenge it faces as a result of the Court's determinations in the advisory opinion, the challenges already faced by Israel today on the international stage may deepen.