Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem
On 19 July 2024, the International Court of Justice (ICJ) delivered its advisory opinion on the case titled Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, and determined that Israel’s ongoing occupation of Palestine (including Gaza and East Jerusalem), as well as its creation of Israeli settlements and exploitation of natural resources, violated international law.
It should be noted that this case is related to, but not the same as, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).
■ Since 1967, Israel has occupied the Palestinian territories of the West Bank and the Gaza Strip, making it the world’s longest military occupation in modern history.
■ In 2004, the ICJ delivered an advisory opinion on the Israeli West Bank barrier, deciding that it contravened international law and should be torn down.
■ On 11 November 2022, a draft motion prepared by the State of Palestine was approved by the Special Political and Decolonization Committee (Fourth Committee).
■ It was passed by a vote of 98 to 17, with 52 abstentions, and was sent to the General Assembly. Nicaragua presented the draft resolution because Palestine was not a full member of the UN.
■ On 30 December 2022, the United Nations General Assembly (UNGA) adopted resolution A/RES/77/247 with 87 votes in favour, 26 against, and 53 abstentions. The UNGA requested the ICJ to render a non-binding advisory opinion on the matter.
■ On 17 January 2023, the request was transferred to the ICJ through a letter sent by the Secretary-General of the United Nations.
■ On 19 January 2023, the request was registered in the ICJ.
■ On 25 July 2023, the deadline for presentation of written statements was closed.
■ On 25 October 2023, the deadline for written comments on the statements made by other States or organisations was closed.
■ On 7 August 2023, the Court announced that 57 written statements had been filed in the Court’s registry, including three written statements from international organisations with the others from Palestine and UN Member States.
■ The written statements were not published by the Court until the start of public hearings, but according to Le Monde, a large majority of the 57 submissions recognized the jurisdiction of the Court to render an opinion on the issues raised; only around 10 or so submissions contested the referral to the Court.
■ On 14 November 2023, the Court announced that 15 comments on the written statements were accepted by the Court.
■ On 19 February 2024, the ICJ opened public hearings and oral presentation of the arguments on the matter, with 52 States and three international organisations participating.
■ On 19 July 2024, the Court determined that Israel’s ongoing occupation of Palestine (including Gaza and East Jerusalem), as well as its creation of Israeli settlements and exploitation of natural resources, violated international law.
Main issues – the UNGA resolution
Paragraph 18 of the resolution requested the Court to render an advisory opinion on the following questions:
a. What were 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 did the policies and practices of Israel referred to in paragraph 18(a) affect the legal status of the occupation, and what were the legal consequences that arose for all States and the United Nations from this status?
Written submissions to the Court
Some of the submissions made to the Court included:
■ Canada: On 14 July 2023, the Government of Canada argued that:
a. The Court should exercise its discretion to decline to render an advisory opinion, because Israel had not accepted the jurisdiction of the Court in this matter, and,
b. The UN Security Council had established a framework for the parties to resolve the dispute through negotiations.
■ France: Although France abstained in the General Assembly on the resolution which requested the advisory opinion from the Court, France submitted a statement to the Court of around 20 pages, in which it:
a. Reaffirmed the illegal nature of colonisation,
b. Recounted the legal obligations of the occupier in the occupied territories, including East Jerusalem, and,
c. Noted the risk of an annexation by fait accompli.
■ Israel: The Government of Israel reportedly made submissions to the Court arguing that:
a. The Court lacked the authority to adjudicate the Israeli-Palestinian conflict, and,
b. It should instead be resolved by direct negotiations between Israel and Palestinian Authority.
■ Palestine: On 24 July 2023, during a meeting at the Hague, Palestine’s Minister of Foreign Affairs and Expatriates delivered the Palestinian submission in implementation of the resolutions of the General Assembly and the decisions of the ICJ, to preserve the rights of the Palestinian people and protect them from crimes committed by Israel, with the goal of holding Israeli war criminals accountable and lifting their immunity. The submissions concluded that the Israeli colonial occupation and its annexation of Palestinian land, racial discrimination and apartheid against the Palestinian people, and its systematic rejection of the inalienable rights of the Palestinian people, including the right to self-determination and the right of return, were illegal.
■ United Kingdom: The UK submission opposed the hearing of the case in the ICJ.
Oral submissions to the Court
1. Africa –
■ African Union: The AU representative stated that the injustice being wrought against the people of Gaza made it imperative to end Israel’s impunity and hold it accountable for the rule of law.
■ Libya: The Libyan representative stated Palestinians had the right to self determination.
■ Namibia: Namibian Justice Minister showed Namibia’s support of Palestine, and stated that Namibia and Palestine shared a similar history of loss of human dignity, and the outright theft of their land and natural resources.
■ South Africa: South Africa argued that Israel’s occupation amounted to colonial apartheid, that the settlements need to be dismantled, and reparations need to be paid to Palestinians.
■ Sudan: The Sudanese representative urged the Court to issue an advisory opinion for Israelis and Palestinians to redouble their efforts to achieve peace and security.
2. Americas –
■ Belize: The Belize representative argued that Gaza was still occupied territory, despite Israel’s 2005 withdrawal.
■ Bolivia: The representative from Bolivia argued that Israel’s occupation policies and practices violated international law.
■ Brazil: The Brazilian attorney advocated for a two-state solution and argued Israel’s occupation was a violation of international law.
■ Chile: The Chilean representative stated that Israel had demonstrated its intention to control indefinitely the occupied Palestinian territory by virtue of its actions, including the exploitation of natural resources, the policies of settlements, the erection of the wall, the legalisation of outposts among others.
■ United States: The US maintained that Israel’s occupation must continue for Israel’s right of self defence.
3. Asia –
■ Bangladesh: Bangladesh argued that Israel must withdraw its forces in the occupied territories and dismantle all settler structures.
■ China: The Chinese representative argued that as an occupied people, Palestinians had a right to resistance against Israel.
■ Indonesia: The Indonesian Foreign Minister stated that Israel’s unlawful occupation and its atrocities must stop, and should not be normalised or recognised. Indonesia claimed that it was clear that Israel had zero intention to abide by international legal obligations.
■ Japan: The legal advisor to Japan’s Foreign Ministry stated that a two-state solution, where Israel and the future independent Palestinian State lived side by side in peace and dignity, remained the only viable path for both peoples.
■ Pakistan: The Minister for Law and Justice stated that Israel’s occupation was reversible, citing France’s withdrawal of 1 million settlers in Algeria in 1962.
4. Europe –
■ Ireland: The Irish representative stated that, by its prolonged occupation of Palestinian territory, and the settlement activities it had conducted there for more than half a century, Israel had committed serious breaches of a number of peremptory norms of general international law.
■ Belgium: The legal expert representing Belgium stated that Israel’s occupation sought a permanent demographic alteration and violated the fundamental rules of international law.
■ Luxembourg: The lawyer representing Luxembourg argued that Israel’s activities of colonisation could not be justified under self-defence, and suggested that its actions had violated the Fourth Geneva Convention.
■ Netherlands: Netherlands representative, in support of the Palestinian people, argued that people under occupation had a right to self-determination.
■ Norway: The Norwegian Foreign Minister stated that the injustice to which the Palestinians were being subjected to must stop. Norway argued that a two-state solution was the only solution to the conflict between Israel and Palestine.
■ Russia: The Russian representative stated that Israel needed to stop all settlement activities in the occupied territory.
■ Slovenia: Slovenia argued that Palestinians had the fundamental human right to self-determination and that the Israeli occupation was an impediment to it.
■ Switzerland: The Swiss representative stated that Israel’s occupation could not be justified under security requirements, because it affected the well-being of the Palestinian population and was discriminatory in nature.
■ United Kingdom: The British representative acknowledged that the Israeli occupation was illegal, but argued that the Court should not issue a ruling on it.
5. Middle East –
■ Arab League: The Arab League representative stated that there was no backdoor legal basis for Israel to maintain the occupation.
■ Iran: Iran stated that it was a collective legal and moral responsibility to end the occupation.
■ Iraq: The Iraqi representative stated that Iraq was deeply concerned about the humanitarian suffering inflicted on the Palestinians throughout the State of Palestine.
■ Jordan: The representative stated that the only way for the Palestinian right to self-determination to be exercised was for the Israeli occupation to come to an end. He further stated that the occupation was unlawful, inhumane and it must end, yet Israel had been systematically consolidating the occupation.
■ Kuwait: The Kuwaiti representative stated that the occupying power had waged an illegitimate war on the Palestinians in Gaza, characterised by numerous international law violations.
■ Lebanon: The Lebanese representative stated that since 1967, Israel had been committing a crime of aggression by illegally occupying territories before annexing them.
■ Oman: The Omani representative stated that Palestinians had been living under occupation, oppression, injustice and daily humiliation, while the international community failed to assist them in realising their aspirations to be an independent State.
■ Qatar: The Qatari lawyer stated that the ICJ held a clear mandate and indeed the responsibility to remedy this unacceptable situation.
■ Saudi Arabia: The Saudi envoy stated that Israel had committed egregious violations of its fundamental international obligations toward Palestinians under occupation.
Judgement of the Court
On 19 July 2024, the ICJ delivered its ruling. It concluded that:
i. Israel should put an end to its illegal occupation of the Palestinian territories.
ii. Desist from creating new settlements.
iii. Evacuate those already established.
iv. Where Palestinians have lost land and property, Israel should pay reparations.
On racial segregation and apartheid –
In relation to the prohibition on racial segregation and apartheid in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Court found that Israeli laws implemented a separation between Palestinians, and settlers in the occupied territories in physical and juridical senses, breaching Article 3 of CERD.
It also found that all States, and institutions such as the U.N. Security Council and the United Nations General Assembly, were under an obligation not to recognise the occupation as legal nor render aid or assistance toward maintaining Israel’s presence in the occupied territories.
On the breach of international law –
Among the breaches of international law, the Court identified practices such as:
i. Forcible evictions,
ii. Pervasive house demolitions,
iii. Restrictions on residence and movement,
iv. The transfer and retention of settlers into East Jerusalem and the West Bank,
v. The failure to protect Palestinians from settler violence,
vi. Placing restrictions on access to water,
vii. The extension of Israeli law into the West Bank and East Jerusalem, and,
viii. The exploitation by Israel of resources in the occupied territories.
The court further wrote that:
“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.”
The Court stated that the Israeli – Palestinian peace process did not prevent international law from applying to the situation. The ICJ stated that the United Nations General Assembly and Security Council were required to determine the method of ending Israel’s unlawful presence in the occupied territories, and that all States were obliged to cooperate with the non-recognition of the Israeli occupation of the occupied territories. read more information CLICK HERE