“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”, declared the International Court of Justice (ICJ), in its advisory opinion delivered on 19 July 2024 on ‘the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territories, including East Jerusalem’.
The ICJ declared itself competent to rule that Israel’s policies and practices in these territories, defined as “a single territorial unit comprising the West Bank, East Jerusalem and Gaza”, do not comply with international law.
The “end of Israel’s presence” in the occupied territory demanded
This unlawfulness obliges Israel “to put an end to its presence in the Occupied Palestinian Territory as soon as possible, (…) and to make reparation for the damage caused to all natural or legal persons concerned”.
The Court considers that the modalities for ending Israel’s presence in the Palestinian territories, with “evacuation of all settlers”, are a matter for the UN General Assembly and the Security Council.
An advisory opinion distinct from the “South Africa v. Israel” case
This case is distinct from South Africa’s complaint against Israel for “genocide in Gaza”, lodged on December 29, 2023, which is the subject of another procedure. In this context, on May 24, 2024, the ICJ ordered Israel to suspend its military operation at Rafah, an order Israel has not complied with.
This advisory opinion is given after a resolution was adopted in December 2022 by the United Nations General Assembly requesting the ICJ for its advice.
The ICJ, based in The Hague, is the principal judicial organ of the UN, and has jurisdiction to settle legal disputes submitted to it by States, as well as to give advisory opinions.
The two questions posed by the General Assembly to the ICJ
The UN General Assembly resolution, adopted at the end of 2022 by 87 States, with 53 abstentions and 26 votes against, includes two specific questions put to the ICJ:
– “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?”
– “How do the policies and practices of Israel (…) 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?”
Two weeks of hearings in February
For the first time in the history of the International Court of Justice (ICJ), 53 States and three international organizations – the Organisation of Islamic Cooperation (OIC), the African Union (AU) and the Arab League – submitted written comments and oral presentations by their representatives in a case.
The hearings were held from February 19 to 26 in The Hague. Many countries, including France, Belgium, Luxembourg, Spain and Ireland, considered the ICJ competent and called for an end to Israel’s settlement policy.
The UK on the contrary echoed many of the arguments put forward in writing by the USA, Canada, Fiji, Hungary and Zambia, that the existing Security Council framework must be respected if a negotiated solution is to move forward.
London went further, asking the ICJ not to issue its opinion, while the Netherlands recalled that “the occupation of a territory can be legitimate within the framework of the right to self-defence, in response to an armed attack”.
Israel challenges the ICJ’s jurisdiction on this matter
The request for an advisory opinion stems from the report, published in October 2022, of a commission of inquiry mandated by the UN Human Rights Council and headed by South African judge Navanethem Pillay. The report found that “there are reasonable grounds to conclude that the Israeli occupation of Palestinian territory is now illegal under international law, due to its permanence and the Israeli Government’s de-facto annexation policies”.
The document was described as “partial and biased, disqualified by its hatred for the State of Israel” by the Israeli Foreign Ministry.