ICJ to rule on Israeli “occupation” of Palestinian territories

Israel’s “occupation” of the West Bank and East Jerusalem, and its associated policies of settlement, annexation and discrimination in those areas, are unlawful and must end, the International Court of Justice said on Friday in issuing the first advisory opinion of its kind on the matter.

“Israel’s continued presence in the Occupied Palestinian Territory is illegal,” said the court’s president, Nawaf Salam, explaining that this was the view of the 11 judges on the 15-member judicial panel. Included in this decision, he noted, were “Israeli settlements in the West Bank, East Jerusalem and the regime associated with them.”

Those same 11 judges, Salam said, maintain that “Israel has an obligation to end its illegal presence in… the territory” as “expeditiously as possible.”

Prime Minister Benjamin Netanyahu strongly denounced the ruling, stating that “the Jewish people are not occupiers of our own land, nor of our eternal capital Jerusalem, nor of the land of our ancestors in Judea and Samaria. No false decision by The Hague will distort this historical truth, just as the legality of Israeli settlements in all the territories of our homeland cannot be questioned.”

Yesha Council Chairman Israel Gantz, who is also head of the Mateh Binyamin Regional Council, called on Netanyahu to “apply sovereignty to the territories of Judea and Samaria.”

People listen to proceedings at the ICJ in The Hague. (credit: THILO SCHMUELGEN/REUTERS)

He also urged the world to condemn the ICJ, saying the decision was “contrary to justice, the Bible, morality and international law.”

Salam read the wide-ranging advisory opinion in the courtroom in The Hague, Netherlands. The advisory opinion examined Gaza, the West Bank and East Jerusalem, but focused primarily on the latter two regions.

The legal opinion is not binding, but could be used as a basis for global action against Israel, whether at the International Criminal Court (ICC), the United Nations or even by the country’s allies.

The ICJ’s conclusions

Some of the court’s findings could help strengthen the ICC as it considers bringing war crimes charges against Israelis over settlement activities.

They also open the door to the possibility of future apartheid accusations against Israel and strengthen the legitimacy of calls for divestment from the Jewish state.

Moreover, the judicial view could encourage the country’s allies to modify the limits of their current or future bilateral agreements with Israel, for fear of violating international law. Israel’s trade relations with its allies are particularly worrying.

The opinion included separate votes on critical issues as well as expanded responses addressing key questions raised about Israeli activity.

“By a vote of 12 to three,” Salam said, the ICJ held that “all States have an obligation not to recognize as legal the situation arising from the illegal presence of the State of Israel in the Occupied Palestinian Territory and not to provide aid or assistance to maintain the situation created by Israel’s continued presence” in that region.

The same judges, he continued, held that the same obligation applied to international organisations such as the UN.

Salam added that the 12 judges also advised the UN, especially its General Assembly and the Security Council, to consider the “precise modalities and additional measures necessary to bring to an end as quickly as possible” Israel’s presence “in the Occupied Palestinian Territory.”

The judges voted 14 to 1, with Salam explaining that Israel must “repair the damage caused to all affected individuals or legal entities” in the “Palestinian territory.” The 14 judges also warned that Israel had an “obligation to immediately cease all new settlement activity and to evacuate settlers” from the West Bank and East Jerusalem.

In this context, the ICJ clarified that its definition of “occupied Palestinian territory” included Gaza, the West Bank and East Jerusalem.

The UN General Assembly requested that the ICJ issue such a legal opinion in 2022, ahead of the Gaza war that began in October 2023.

The court explained that “the policies and practices contemplated in the request do not include Israel’s conduct in the Gaza Strip in response to the attack of 7 October 2023,” and therefore its opinion largely dealt with the West Bank and East Jerusalem in general.

It noted that Israel had withdrawn from Gaza in 2005, but questioned Israel’s claim that by doing so it could no longer be legally considered to be occupying the enclave. The ICJ explained that Israel still retained some elements of control over Gaza, in particular with regard to access by land, air and sea.

“Israel’s withdrawal from the Gaza Strip has not entirely released it from its obligations under the law of occupation. Israel’s obligations have remained proportionate to the degree of its effective control” of the area, the court stressed.

He dismissed any argument that Israel had a right to retain control of the West Bank, East Jerusalem or Gaza for security reasons, whether through annexation or military rule.

The court also rejected claims that the 1993 Oslo Accords, which laid the groundwork for a two-state solution to the conflict, allowed for the retention of territory.

“These agreements do not authorize Israel to annex part of the Occupied Palestinian Territory to meet its security needs, nor to maintain a permanent presence” in that territory “for security reasons,” the ICJ said.

He echoed accusations against Israel that its practices and policies “amount to the annexation of large parts of the occupied Palestinian territory.”

It also agreed that Israeli policies supporting the civilian life of its citizens in the West Bank and East Jerusalem contravened Article 49 of the Fourth Geneva Convention, a finding that could serve as a basis for the ICC to bring war crimes charges against Israel in the future.

“The Tribunal finds,” the ICJ said, “that Israel’s transfer of settlers to the West Bank and East Jerusalem, as well as Israel’s continued presence there, is contrary to the sixth paragraph of Article 49 of the Fourth Geneva Convention.”

In addition, it also found that Israel had breached Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination, also known as CERD, which prohibits racial segregation and apartheid.

But in expanding on the grounds on which it found Israel in violation of Article 3 of CERD, the ICJ in its advisory opinion focused solely on the issue of segregation.

“Israeli legislation and measures enforce and serve to maintain an almost complete separation in the West Bank and East Jerusalem between settler and Palestinian communities,” he said.

Overall, the ICJ stated that “Israel’s settlement policy, its annexation acts and its related discriminatory legislation and measures violate international law.”

These policies aggravate Israel’s violation of the Palestinian people’s right to self-determination, he stressed.

In February, more than 50 states submitted their opinions to the court, with Palestinian representatives calling for a ruling that Israel must withdraw from the West Bank and East Jerusalem.

Israel has argued that the ICJ does not have jurisdiction to hear the case and therefore did not participate in the oral hearings. Israel did submit a written statement informing the court that issuing an advisory opinion would be “prejudicial” to efforts to resolve the Israeli-Palestinian conflict.

A handful of states, including Canada and Britain, argued that the court should decline to issue an advisory opinion.

The United States, Israel’s main ally, has urged Israel to limit any advisory opinion and not order the unconditional withdrawal of Israeli forces from Palestinian territories.

The US position was that the court should not issue any decision that might undermine negotiations towards a two-state solution based on the principle of “land for peace.”

In 2004, the ICJ issued an advisory ruling stating that the security barrier running through parts of the West Bank was illegal and that Israeli settlements had been established in violation of international law. Israel dismissed that ruling.

The Jewish state captured the West Bank and East Jerusalem from Jordan during the 1967 Six-Day War. It annexed East Jerusalem, formalizing that application of sovereignty in 1980, but left the West Bank under military rule.

The Oslo Accords of the 1990s divided the West Bank into three sections, placing Areas A and B under the full or partial auspices of the Palestinian Authority, while Area C remained under the civil and military control of the Israel Defense Forces. All Israeli settlements are located in Area C.

Reuters contributed to this report.

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ICJ to rule on Israeli “occupation” of Palestinian territories

ByS. Jacob

The ICJ’s conclusions

By S. Jacob

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