International Court of Justice (ICJ): While considering the reference made by the General Assembly of the United Nations under Article 65 of the Statute of the Court, wherein it had requested the ICJ to give an Advisory Opinion on the following questions:
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What are the legal consequences arising from the ongoing violation by Israel of the rights of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967?
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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?
Court’s Assessment: The Court had to consider whether it had jurisdiction to render the opinion requested by the UN General Assembly. The Court pointed out that the questions posed by the General Assembly were legal questions. Therefore, the Court unanimously concluded that the afore-stated request was made in accordance with the provisions of the Charter and of the Statute of the Court and therefore, ICJ has jurisdiction to render the requested opinion. The Court also found that there were no compelling reasons for it to decline to give the opinion requested by the General Assembly.
Considering the scope and meaning of the two questions posed by the General Assembly, it was noted that the questions define the material, territorial and temporal scope of the Court’s enquiry. It was further stated that in its request, the General Assembly did not seek a detailed factual determination of Israel’s policies and practices. Therefore, to give an advisory opinion in the instant case, it is not necessary for the Court to make findings of fact regarding specific incidents allegedly in violation of international law. The Court need to only establish the main features of Israel’s policies and practices and, on that basis, assess the conformity of these policies and practices with international law.
Concerning Israel’s policy and practices on the Occupied Palestinian Territory, the Court observed that the prolonged occupation of the Occupied Palestinian Territory, which has lasted for more than 57 years, the State of Israel by virtue of its status as an occupying Power, has a set of powers and duties with respect to the territory over which it exercises effective control. The nature and scope of these powers and duties are always premised on the same assumption: that occupation is a temporary situation to respond to military necessity, and it cannot transfer title of sovereignty to the occupying Power.
The Court pointed out that a prolonged occupation does not change its legal status under international humanitarian law. To be permissible, therefore, such exercise of effective control must always be consistent with the rules concerning the prohibition of the threat or use of force, including the prohibition of territorial acquisition resulting from the threat or use of force, as well as with the right to self‑determination. Therefore, the fact that an occupation is prolonged may have a bearing on the justification under international law of the occupying Power’s continued presence in the occupied territory.
The Court also expressed grave concern on the reports that Israel’s settlement policy has been expanding since the ICJ’s 2004 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
As regards the question of the annexation of the Occupied Palestinian Territory, the Court was of the view that, 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.
Examining the question of the legal consequences arising from Israel’s adoption of related discriminatory legislation and measures, the Court concluded that that a broad array of legislation adopted, and measures taken by Israel in its capacity as an occupying Power, treat Palestinians differently on grounds specified by international law. The Court further noted that this differentiation of treatment cannot be justified with reference to reasonable and objective criteria nor to a legitimate public aim.
Accordingly, the Court was of the view that the régime of comprehensive restrictions imposed by Israel on Palestinians in the Occupied Palestinian Territory, constitutes systemic discrimination based on race, religion or ethnic origin, in violation of Articles 2, paragraph 1, and 26 of the International Covenant on Civil and Political Rights, Article 2, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights, and Article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination.
Vis-a-vis the effects of Israel’s policies and practices on the exercise of the Palestinian people’s right to self‑determination, the Court stated that as a consequence of Israel’s policies and practices, which span decades, the Palestinian people has been deprived of its right to self‑determination over a long period, and further prolongation of these policies and practices undermines the exercise of this right in the future.
Regarding the effects of Israel’s policies on legal status of the occupation considering the relevant rules and principles of international law, the Court was of the view that Israel’s assertion of sovereignty and its annexation of certain parts of the territory constitute a violation of the prohibition of the acquisition of territory by force. This violation has a direct impact on the legality of Israel’s continued presence, as an occupying Power, in the Occupied Palestinian Territory.
The Court stated that Israel is not entitled to sovereignty over any part of the Occupied Palestinian Territory on account of its occupation. Nor can Israel’s security concerns override the principle of the prohibition of the acquisition of territory by force.
The Court noted that the effects of these policies and practices include Israel’s annexation of parts of the Occupied Palestinian Territory, the fragmentation of this territory, undermining its integrity, the deprivation of the Palestinian people of the enjoyment of the natural resources of the territory and its impairment of the Palestinian people’s right to pursue its economic, social and cultural development.
Examining the legality of the continued presence of Israel in the Occupied Palestinian Territory, the Court pointed out that 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 as unlawful. This illegality relates to the entirety of the Palestinian territory occupied by Israel in 1967.
Court’s Opinion:
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The Court with a ratio of 11:4 opined that the State of Israel’s continued presence in the Occupied Palestinian Territory is unlawful. Furthermore, with the very same ratio, the Court opined the State of Israel is under an obligation to end its unlawful presence in the Occupied Palestinian Territory as rapidly as possible.
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The Court with a ratio of 14:1 opined that the State of Israel is under an obligation to cease immediately all new settlement activities, and to evacuate all settlers from the Occupied Palestinian Territory; furthermore, it was opined that the State of Israel has an obligation to make reparation for the damage caused to all the natural or legal persons concerned in the Occupied Palestinian Territory.
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The Court with a ratio of 12:3 opined that all States are under an obligation to not recognize the situation arising from the unlawful presence of the State of Israel in the Occupied Palestinian Territory as legal, 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.
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The Court with a ratio of 12:3 also opined that International Organizations including United Nations is also under obligation to not recognize the situation arising from the unlawful presence of the State of Israel in the Occupied Palestinian Territory as legal.
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The Court with a 12:3 ratio, opined that the United Nations, and especially the General Assembly and the Security Council, should consider the precise modalities and further action required to end as rapidly as possible the unlawful presence of the State of Israel in the Occupied Palestinian Territory.
[In re. Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, General List No. 186, decided on 19-07-2024]
