The ICJ, Israel's Occupation and the Realization of Palestinian Rights

The Origins of the Advisory Opinion

This advisory opinion has many antecedents, all of them developed in the era of decolonization and the absolute prohibition against forcible annexation. The U.N. Charter of 1945 states that all members "shall refrain…from the threat or use of force against the territorial integrity or political independence of any State." In the immediate aftermath of the June 1967 war, when Israel had conquered Arab lands, including East Jerusalem, the West Bank and Gaza, the U.N. Security Council adopted its bedrock Resolution 242, which proclaimed "the inadmissibility of the acquisition of territory by force." In its Namibia Advisory Opinion in 1971, the ICJ held that apartheid South Africa's continued rule over Namibia was a serious abuse of its mandate powers, as it had become a "disguised cession" that thwarted the right of self-determination for the Namibian people.

More recently, legal scholars and human rights voices from the U.N. have written that Israel's occupation has become indistinguishable from annexation, and has therefore become illegal. In 2017, as U.N. special rapporteur for the human rights situation in Palestine, I issued a report to the U.N. General Assembly that concluded that the Israeli occupation had become illegal and recommended that the General Assembly seek an advisory opinion from the ICJ on the issue. More recently, the U.N. Committee on the Inalienable Rights of the Palestinian People, together with the Irish Centre for Human Rights, published a landmark study that described Israel as an "illegal occupant."

These studies culminated in the adoption by the U.N. General Assembly, in late December 2022, of a resolution requesting the ICJ for an advisory opinion on the occupation. The request asked the court to examine the legal consequences of Israel's denial of Palestinian self-determination, its prolonged occupation, its settlement and annexation of Palestinian territory and its adoption of related discriminatory legislation and measures. The General Assembly's resolution also asked the ICJ to assess the legal consequences of Israel's ongoing occupation for all states and the U.N. itself.

This past February, the court heard arguments over six days on the issues raised by the advisory opinion. A record number of more than 50 states and international organizations made oral and written submissions to the ICJ. A handful of them, including the United States, the United Kingdom, Hungary, Canada and Fiji, argued that the court should not answer the General Assembly's request because, in their view, it would only disturb the existing Oslo peace process and drive the parties further away from a negotiated settlement. In contrast, the vast majority of the submissions contended that the Israeli occupation had become illegal and must end completely, unconditionally and as quickly as possible.

Israel's Illegal Annexation

The ICJ spent considerable time examining the many ways that Israel has turned its prolonged occupation into both de jure and de facto annexation. It noted that de jure annexation is the formal declaration of sovereignty over the occupied territory by the occupying power, while de facto annexation are acts of "fait accompli" by the occupying power that fall short of a formal declaration, but they are nonetheless intended to consolidate its permanent control. Both are illegal.

Among the acts that the court cited are Israel's formal annexation of East Jerusalem in 1980, the extension of Israeli domestic law to the West Bank, the severe restrictions on Palestinian construction in East Jerusalem and the West Bank, and the resulting displacement of the local Palestinian population from their communities and lands in the occupied territory.

What especially captured the ICJ's attention was the breadth and impact of Israel's settlement practices. It accepted the evidence that the Israeli government has been the driving force for the creation, maintenance and expansion of the settlements in East Jerusalem and the West Bank. In particular, it cited the state incentives for the relocation of Israeli individuals and businesses into the settlements, the public construction of civilian infrastructure to integrate the settlements into Israel, the ongoing state confiscation of Palestinian land to service the settlements, the government licenses to Israeli and foreign companies to exploit the natural resources, including water and minerals, of the West Bank and East Jerusalem, and the widespread settler violence against Palestinians that has been largely unchecked by Israeli security forces. Between November 2022 and October 2023, the court noted that Israel had approved 24,300 housing units in the settlements, consolidating the permanence of its presence in the occupied territory.

All of these acts, the ICJ said, "amount to annexation of large parts of the Occupied Palestinian Territory." In the view of a majority of the court's 15 judges, "to seek to acquire sovereignty over an occupied territory, as shown by the policies and practices adopted by Israel in East Jerusalem and the West Bank, is contrary to the prohibition of the use of force in international relations and its corollary principle of the non-acquisition of territory by force."

Racial Segregation and Apartheid

The U.N. General Assembly's request for the advisory opinion asked the ICJ to assess Israel's "adoption of related discriminatory legislation and measures." During the arguments made before the court in February, 24 states and organizations—led by South Africa and Namibia—submitted that Israel has been practicing apartheid in the occupied Palestinian territory and urged the ICJ to make such a finding.

More than any other single issue in the advisory opinion, the court's analysis of this issue reveals the compromises that must have taken place in the judges' chambers as they sought to reach a majority consensus. The ICJ ruling devotes 49 paragraphs to discussing the question of Israel's discriminatory legislation and measures in the occupied Palestinian territory, which is the longest single section of the opinion. In great detail, the court examines Israel's residence permit policy ("not justified"), its severe restrictions on Palestinian movement ("prohibited discrimination"), and Israel's ubiquitous practice of property demolitions, either as a punitive measure or for the lack of an almost-impossible-to-get building permit (no "legitimate public aim").

This "regime of comprehensive restrictions imposed by Israel," the court decided, "constitutes systemic discrimination based on…race, religion or ethnic origin, in violation" of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

But does this amount to apartheid? The court specifically quoted in full Article 3 of the convention on racial discrimination, to which Israel is a party: "States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction."

The ICJ then noted that this article "refers to two particularly severe forms of racial discrimination: racial segregation and apartheid." It went on to cite how Israel's settlement policy furthers the physical fragmentation of the West Bank and East Jerusalem, as well as encircling Palestinian communities into enclaves. Additionally, the court pointed out that the separation of the Jewish settlers and the Palestinians in the West Bank and East Jerusalem is also juridical, because Israel has imposed two different and very unequal legal systems to govern the two peoples.

With a sotto voce note, the court concluded that "Israel's legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities," and thus they are in breach of the U.N. convention on racial discrimination.

The best reading of this conclusion is that the court has found that Israel is practicing both racial segregation and apartheid against the Palestinians under Israeli occupation. While the delicate wording of this passage has almost been certainly crafted to bridge an agreement among a majority of the judges on this contentious issue, the meaning of the paragraph—that Israel has imposed apartheid as well as racial segregation on the occupied Palestinian territory—yields no other reasonable interpretation.

Self-Determination

In its 1995 decision on East Timor, the ICJ had ruled that the right of all peoples to self-determination is "one of the essential principles of contemporary international law." Almost a decade later, in 2004, the court stated in its advisory opinion on Israel's separation wall that the Palestinian people had a right to self-determination. The question before it in this new advisory opinion was whether Israel's practices and policies are obstructing the Palestinians' right to self-determination in breach of international law.

In answering the question, the ICJ found that Israel's rule beyond the Green Line of 1967 has been designed to enhance its permanent control of the occupied territory while splintering the Palestinian presence and "undermining its integrity as a people." It cited the construction of the wall, the spread of the Israeli settlements, the acts of de jure and de facto annexation, its exploitation of natural resources, its detrimental impact on the social, economic and cultural lives of the Palestinians and its steady impairment of Palestinian human rights.

"The prolonged character," the court stated, "of Israel's unlawful policies and practices aggravates their violation of the right of the Palestinian people to self-determination." Israel's decades-long occupation, it added, has deprived the Palestinian people "of its right to self-determination over a long period" and "undermines the exercise of this right in the future." For those reasons, the judges concluded that "Israel's unlawful policies and practices are in breach of Israel's obligation to respect the right of the Palestinian people to self-determination."

Israel's Unlawful Occupation

For diplomats and international lawyers, it has long been accepted that many features of Israel's prolonged occupation are illegal: the formal annexation of East Jerusalem; the Israeli settlements; the construction of the separation wall; and the many violations of Palestinian human rights. But was the occupation itself illegal? International humanitarian law provided no clear answer to this question, as it was concerned only with the regulation of an occupation. Analogous decisions by the ICJ, particularly the Namibia ruling in 1971 dealing with a mandate territory, suggested that an occupation that was initially thought to be lawful could become illegal, but with no certainty.

We now have that certainty. The court stated that the culmination of Israel's practices and policies "manifest an intention to create a permanent and irreversible Israeli presence in the Occupied Palestinian Territory." Occupation can never give justification to an occupying power to serve as the source of title to territory or justify its acquisition by the occupying power. Accordingly, the court ruled that "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 judicial finding that the Israeli occupation is illegal has several important implications. First, it applies to the entirety of the Palestinian territory occupied by Israel in June 1967: East Jerusalem, the West Bank and Gaza. This is also the entirety of the territory that the Palestinians are entitled to exercise their right of self-determination, the integrity of which Israel and the world must respect under international law. The eventual negotiations that Israel and the Palestinians are to conduct to find a lasting solution to this conflict cannot be about which occupied lands and how many settlements Israel is entitled to retain, but only about the modalities of how Israel is to completely end the occupation and evacuate all of its settlements and settlers.

Second, the court expressly stated that the Oslo Accords do not allow Israel to annex parts of the occupied Palestinian territory in order to meet its security needs. Nor do they permit Israel to maintain a permanent presence in the occupied territory for such security needs. The underlying assumption is that the oppressive occupation and the denial of self-determination have been the principal source of Israel's security concerns, and that Israel will have to treat the emerging State of Palestine as an equal in negotiating new ways of ensuring security for both peoples.

And third, while the occupation continues, the determination that it is illegal does not release Israel from its many responsibilities under international humanitarian and human rights law. The Palestinian people remain a protected population. The occupation must be conducted with their best interests in mind. Discriminatory practices and legislation must end. Israel must take all reasonable steps to unwind the many features of the occupation. And it must negotiate in good faith with the Palestinians to end the occupation consistent with the rule of law. Importantly, the ICJ advised that Israel should be required to make reparations for the damage caused to the Palestinians arising from the prolonged occupation of the Palestinian territory.

The Legal Consequences for the International Community

The General Assembly's request for an advisory opinion asked the ICJ for its views on the legal consequences arising from its findings as per the international community and the U.N. For the international community, the court stated that they "are under an obligation not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the Occupied Palestinian Territory and not to render aid or assistance in maintaining the situation created by the continued presence of the State of Israel in the Occupied Palestinian Territory."

As for international organizations, including the U.N., they are "under an obligation not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the Occupied Palestinian Territory."

The ICJ has left the actual legal and political mechanisms to the General Assembly and the Security Council to determine what actions are required "to bring to an end as rapidly as possible the unlawful presence of the State of Israel in the Occupied Palestinian Territory."

The ICJ's opinion on the legal consequences of its finding that the Israel occupation is illegal, while expressed in generalities, will undoubtedly put wind in the sails of those movements and states seeking to increase the cost on Israel for its serial violations of international law and for denying Palestinian self-determination. Weapons sales will be targeted. The call for divestments from Israeli companies will grow. Trade agreements with Israel will be re-examined, particularly respecting the import of settlement goods and services. There will be a push to re-establish the U.N. Special Committee Against Apartheid. BDS campaigns and student protests will expand. The pressure from civil society and states on the chief prosecutor of the International Criminal Court to expand his investigations into war crimes arising from the Israeli occupation—and particularly the Israeli settlements—will only increase. And the number of countries seeking to intervene at the ICJ to support South Africa's case against Israel, accusing it of violating the Genocide Convention in its war in Gaza, will continue to swell.