– Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem

(Request for advisory opinion submitted by the General Assembly of the United Nations) –

On 19 July 2024 the International Court of Justice (hereinafter the ‘ICJ’ or ‘the Court’) delivered its long-anticipated opinion on certain questions relating to the Israeli occupation of Gaza, the West Bank of the River Jordan, and East Jerusalem. As always, this is intended to be a relatively simple explanation of the nature of the case, the decision and its likely legal and political impact. There are footnotes, but not everything that would be footnoted in an academic article is referenced as such.

1. Advisory Opinions and the ICJ

The ICJ is an organ of the United Nations (UN). It is occasionally referred to as the ‘World Court’, but there is no official basis for this. It is located, like so many international courts, in The Hague, Netherlands.

The first thing that observers tend to note about the decision at hand is that it is an advisory opinion. The ICJ has two main types of jurisdiction: contentious and advisory.

Contentious jurisdiction is governed by Articles 35 and 36 of the Statute of the ICJ.

Article 35(1) declares:  ‘The Court shall be open to the states parties to the present Statute.’ Israel, and most states in the world fall into this category.

Article 36(1) goes onto list the substantive jurisdiction of the ICJ: ‘The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.’

Article 36(2) goes onto make it clear that two or more state parties can decide on an ad hoc basis to refer virtually any other international law question for resolution by the ICJ.  Article 94 of the United Nations Charter provides that ‘[e]ach Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party.’ Thus, the decisions of the ICJ are binding.

This sounds impressive, but the problem is that states are automatically parties to the ICJ simply by virtue of UN membership, as per Article 93 of the UN Charter. But this does not mean that the state actually accepts the binding jurisdiction of the ICJ. This is achieved by the state communicating their acceptance of the ICJ’s jurisdiction by either:

1. Entering into a special agreement with the ICJ (ad hoc jurisdiction);
2. A clause in a treaty. Israel is a party to The Genocide Convention 1948 and this references the ICJ as the appropriate dispute resolution forum.[1] This is the reason Israel had to appear before the ICJ in the recent case brought by South Africa.[2] The Israeli government certainly did not want to appear.
3. A specific and open-ended declaration of acceptance of the ICJ’s jurisdiction. These often have reservations relating to certain types of disputes. States can also renounce these declarations, as the USA famously did after the Nicaragua v United States [1986] decision.[3] Israel has never made such a declaration.

The problem in bringing cases against Israel is thus twofold: first, a state has to be brave enough to bring the claim. It has to be a state, because only states can access the contentious jurisdiction of the ICJ; second, Israel does not accept the jurisdiction of the ICJ, except in the kind of extremely narrow circumstances seen in the Genocide case above. There is no judgment by default in the ICJ. If the justices don’t believe there is any legal compulsion for the other side to attend, then the case is not admitted.

However, there are advisory opinions. Article 96(1) of the UN Charter elaborates:

‘The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.’

Article 65 of the statute of the ICJ mirrors this:

1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.
2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question.

Since the exercise of contentious jurisdiction requires the consent of the states involved, and Israel will not accede to this, there is much point in any individual state bringing a claim against Israel on this matter. Advisory opinions are thus the best that can be made of a poor legal job. They are half a loaf, but half is better than no bread.

2. Background

On 30 December 2022, the General Assembly of the United Nations adopted a resolution, referring to Article 65 of the Statute of the Court, requesting the ICJ to give an advisory opinion.[4] The operative part of the resolution reads:

The General Assembly, 

18. Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following questions…

(a)       What are 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, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures? 

(b)       How do the policies and practices of Israel referred to in paragraph 18 (a) 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?”[5]

The Secretary-General of the United Nations then transmitted the request for an advisory opinion to the ICJ in January 2023.

On 3 February 2023, the Court decided ‘that the United Nations and its Member States, as well as the observer State of Palestine,[6] are considered likely to be able to furnish information on the questions submitted to the Court for an advisory opinion and may do so within the time-limits fixed in th[e] Order.’

The ICJ set a deadline of 25 July 2023 as the time-limit for the presentation of these  written submissions. Fifty-seven written statements were filed in the Registry within that time-limit.[7] By the same Order, the Court fixed 25 October 2023 as the time-limit within which States and organizations having presented written statements might submit written comments on the written statements made by other States or organizations. These would be akin to rebuttals in a contentious case.

The Court also subsequently authorized the League of Arab States, the Organisation of Islamic Cooperation and the African Union to participate in the proceedings.

3. Decision

One of the key comments that some state parties made in their initial submissions was that these questions were too vague. This is essentially a way of invoking the  ‘political question’ doctrine that some domestic legal systems use to deny legal jurisdiction in political matters: political questions are almost always less precise than legal ones. The Court rejected this and accepted it could give an advisory opinion. It is likely that in a contentious jurisdiction case, the Court would expect greater precision. There were several other arguments made about jurisdiction, but they are quite technical and not worth considering here. They were, in any event, all rejected.

As regards, (a), the following points were addressed in the Court’s opinion:

3.1 Whether the territories are ‘occupied’?

Recalling its decision its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,[8] the Court held that the territories in question met the definition of ‘occupied’ under International Humanitarian Law (IHL, otherwise known as the law of armed conflict). The 2004 opinion did not specifically address Gaza, but the Court held that the same logic applied to it as the West Bank and East Jerusalem. The Court went onto enumerate what this means for Israel in practice: it is obligated to follow the relevant rules of IHL, it is bound to apply international human rights law within the territories.[9]

The third overall obligation mentioned in the opinion is perhaps the most interesting: Israel cannot use the occupation to try and absorb territory. The Court relies a lot on the same reasoning it applied in 2004, but also stresses the fact that occupation is only ever meant to be temporary. The Israeli occupation has been in place for 57 years. In 2004 it was already long, so it is not surprising that 20 years later the Court would emphasise this. The General Assembly referral specifically refers to ‘prolonged occupation.’  This is a legal issue that Israel’s allies take seriously. In the conflicts in Afghanistan (2001) and Iraq (2003), the occupying states moved relatively quickly to establish a new national government that would relieve them of occupier status.[10]

3.2 The legality of Israeli settlement policy

The Court again relied on its 2004 Wall Advisory Opinion in finding that the settlement policy was in breach of the sixth paragraph of Article 49 of the Fourth Geneva Convention, which provides that ‘[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. The Court specifically noted that this provision is not restricted to forced transfers: incentivising Israeli’s to move to West Bank settlements would violate this provision, just as much as removing Palestinians. Of course, Israel has subject Palestinians to unlawful enforced transfers as well, and this is noted by the Court.[11] The Court concludes this analysis by noting that Israel has failed to stop violence by settlers against Palestinians and this is inconsistent with the aforementioned obligations.

3.3 Extension of Israeli law to the Occupied Territories

The Court noted that Article 43 of the Hague Regulations[12] requires the occupying power to respect local laws. Article 64 of the Fourth Geneva Convention allows states flexibility if this is essential ‘to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power.’[13] The Court observed that the Israeli government, including the Israeli Defence Force (IDF) applies Israeli law in the Occupied Territories, and there is no convincing reason why Article 64 should apply to legitimate this.

3.4 Has Israel annexed at least part of the Occupied Territories?

The General Assembly referral mentions that Israel has annexed the occupied territories as if this were a fact, when it is of course a specific legal question. The Court sensibly approached this by looking at Israel’s actions and not merely its words. Israel has never formally announced annexation of the West Bank or Gaza. In 1980, the Knesset passed  the so called ‘Jerusalem Law’, which claims:  ‘Jerusalem, complete and united, is the capital of Israel.’[14] This does sound like annexation. But in any event, the Court held that Israeli policy in the Occupied Territories implies permanent and ongoing control and this amounted to annexation.

3.5 Are Palestinians subject to a form of apartheid?

The term ‘apartheid’ is defined by Webster’s Dictionary as ‘a former policy of segregation and political, social, and economic discrimination against the non-white majority in the Republic of South Africa.’ It is not a term mentioned in the General Assembly referral or the ICJ opinion. But it is a more emotive way to describe the systemic discrimination that Palestinians suffer at the hands of the IDF and the Israeli government. The Court is clear that the restrictions imposed by Israel on Palestinians in the Occupied Territories constitutes systemic discrimination based on, inter alia, race, religion or ethnic origin, in violation of Articles 2, paragraph 1, and 26 of the ICCPR, Article 2, paragraph 2, of the ICESCR, and Article 2 and 3 of CERD.

3.6 Self-determination

The Court concluded that Israeli policy and actions denied Palestinian’s the right to self-determination. This was mainly premised on all of the above violations being taken together: they make Palestinian self-determination unrealistic, even though, formally speaking, the Oslo Accords[15] commit Israel to this. Again, the Court is willing to focus on actions, not words.

Moving onto (b)

4.1 How do Israeli policies and practices affect the legal status of their occupation?

In addition to the specific violations of international law mentioned above, The Court held that taken together, Israel’s polices violated at least two overall and  fundamental international norms:

1. The West Bank settlements, and the Israeli law on Jerusalem are illegal acquisition of territory;
2. The prolonged nature of the occupation violated the right to self-determination of the Palestinian people. The Court emphasised the open-ended nature of the occupation and the sense of uncertainty this has created for Palestinians.

4.2  Is Israeli occupation legal?

This is perhaps the most fundamental question of all. The Court dealt with it in a remarkably simple way: the sustained abuse of its position as occupying power and the violations enumerated above, all rendered the occupation unlawful. Occupation in international law is envisaged as a temporary measure, before transfer to some other civilian authority. It is impossible to say what ‘temporary ‘means, but it is not 57 years. Even if Israel had been a model of decency in its occupation, it would still be unlawful. The violations of Palestinians rights to property, to self-determination, to basic human rights, make it all the worse. The Court also noted that the fact that the occupation is unlawful does not release Israel from any of its obligations.

The Court concluded that Israeli occupation is an ongoing wrongful act entailing international responsibility. This does not sound that tough, but it is the standard language used in international law.[16] The Court was also clear that is an ongoing wrongful act and that Israeli was thus under obligations to both end the occupation as soon as possible and compensate individuals for specific harms they may have suffered as a result. This would include a right of return for displaced Palestinians.

4.3 Obligations for other states and the UN

The Court noted that other states and the UN were under an obligation not to recognise Israeli occupation and not to facilitate it. Some of the obligations that flow from this opinion were noted as being erga omnes. This means that all states have to respect the advisory opinion and try to achieve its obligations, even those with no direct relationship to the dispute. It is certainly implied that those states that are close allies of Israel would be under even more scrutiny in this regard.  In December 2017 President Trump recognised Jerusalem as the capital of Israel, in defiance of 70 years of international neutrality on the subject. The US has backtracked since then, but the chances that Trump will be President again are high and he is likely to reinstate this policy. This is a policy that would defy this advisory opinion.

5. Legal Impact

It is easy to say that the legal impact of the case is nothing: Israel will not do any of the things the judgment requires or implies, because they are simply not even parties to the case. This view is both true and false at the same time. Practically speaking, life for Palestinians has not changed for the better in the last week. It has probably gotten worse as the Gaza conflict continues. But Israel is a democracy and the current government will not be in place forever. If a more liberal government takes power, it may seriously pursue the peace process again. The principles laid out in this advisory opinion may influence how Israel negotiates any peace deal.

Then there is the impact on other states. Israel has lost a  lot of friends and goodwill in the last nine months. This opinion will give states that were sitting on the fence the legal cover they need to condemn Israel more. The section on self-determination is especially useful, because it can have concrete results: more states will recognise Palestine. This is not something that Israel has any control over.

And believe it or not, there are a very small number of states that do premise their international relations on law and they will be directly influenced by this opinion.

6. Political Impact

The political impact is greater than the legal. This is a terrible report for the Israeli government. It holds them responsible in every way it conceivably could. The Court pulls no punches and does not hide behind legal technicalities or diplomatic niceties. The fact that it is merely an advisory opinion will only make things politically worse for the Israeli government: in addition to the substantive violations, the refusal to submit to the contentious procedure of the ICJ makes them look like moral and political cowards.

7. Conclusion

This is a curious opinion. It is both shocking and unsurprising at the same time. It is shocking because the ICJ has never really delivered anything like this before. There are states that have engaged in behaviour that is arguably as bad as Israel. But the General Assembly does not ask for advisory opinions on their behaviour, because they are too powerful and thus members of the UN do not want to annoy them. This opinion casts Israel into a political space close to that endured by apartheid era South Africa.

But the judgment is unsurprising because it is basically correct. There is nothing else to say.

References

[1] Convention on the Prevention and Punishment of the Crime of Genocide, Article IX

[2] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip; South Africa v. Israel [2024]

[3] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) [1986]

[4] ICJ press release No. 2024/17 26 February 2024

[5] General Assembly Resolution A/RES/77/247

[6] As an Observer State, Palestine is entitled to access the ICJ itself using the contentious jurisdiction. But the same problem remains: contentious jurisdiction only functions if the other state agrees. Israel does not. This is in contrast to the International Criminal Court (ICC), where cases are brought by an independent prosecutor against individuals. State consent is still highly relevant, but there are ways around it. For example, an indicted Israeli commander, captured in the Occupied Territories could be handed over by Palestine to the ICC.

[7]See ICJ press release No. 2023/43

[8] See ICJ Summary 2004/2, 9 July 2004

[9] The opinion mentions the ICCPR, the ICESCR and CERD. Other obligations not mentioned in the opinion may also apply

[10] One accepts that this can be a flimsy distinction, but in both cases, those governments persisted for a long time. The one in Iraq is still extant

[11] The decisions splits this into two sections, but it is surely the same legal question

[12] Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907

[13] Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949

[14] This was repudiated by UN Security Council Resolution 478.

[15] Declaration of Principles on Interim Self-Government Arrangements, 1993

[16] See the International Law Commission Articles on State Responsibility, International Law Commission Report, A/56/10 August 2001