Maureen Clare Murphy Rights and Accountability 19 July 2024
In a landmark ruling announced on Friday, the International Court of Justice declared Israel’s continued presence in the West Bank and Gaza, occupied by its military and heavily colonized by its settlers since 1967, to be unlawful.
The tribunal, which is composed of 15 judges and is also known as the World Court, stated that Israel is obliged to “bring an end to its unlawful presence in the occupied Palestinian territory as rapidly as possible,” halt all new settlement activity and evacuate all settlers.
Israel is also obliged to make reparations, the court declared, and other states and international organizations must not “recognize as legal” Israel’s presence in the occupied territory or render assistance in maintaining the occupation.
The court confirmed that the obligation to affirmatively act to end the illegal occupation does not fall on Israel alone, but on all states.
All countries around the world are “under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence” in the occupied Palestinian territories, the judges stated in their ruling.
States must ensure that “any impediment resulting from the illegal presence of Israel in the Occupied Palestinian Territory to the exercise of the Palestinian people of its right to self-determination is brought to an end,” the judges add, in what can be seen as an endorsement of international sanctions on Israel.
Similarly, the judges stated, all countries that have signed the Fourth Geneva Convention, which protects the rights of civilian populations under military occupation, “have the obligation … to ensure compliance by Israel with international humanitarian law as embodied in that convention.”
The court added that the United Nations, especially the General Assembly and Security Council, should “should consider the precise modalities and further action required to bring to an end as rapidly as possible the unlawful presence of the State of Israel in the occupied Palestinian territory.”
Long road to justice
The court’s advisory opinion was rendered following a request by the General Assembly in late 2022 to determine the legal consequences arising from Israel’s continued presence in the occupied West Bank and Gaza Strip.
The principal judicial organ of the United Nations, the court hears both legal disputes between states and considers requests for advisory opinions on legal questions referred to it within the UN system.
The tribunal is separately considering a complaint initiated by South Africa alleging that Israel is perpetrating genocide against Palestinians in Gaza. The court found a plausible risk of genocide in an interim ruling handed down in late January.
The International Court of Justice is independent and distinct from the International Criminal Court, which is also based in The Hague and opened an investigation into alleged war crimes in the West Bank and Gaza in March 2021.
Fatou Bensouda, the International Criminal Court’s chief prosecutor at the time, identified Israel’s settlement enterprise in the West Bank as a primary focus of her investigation.
But the court’s current prosecutor, Karim Khan, appears to have largely disregarded Bensouda’s work and has requested warrants for the arrest of the leadership of Israel and Hamas for alleged crimes perpetrated on and since 7 October 2023.
Palestinians have long advocated for international institutions such as the United Nations to examine Israel’s system of repression as a whole, rather than treating its violations of Palestinian rights in a fragmented manner while ignoring the context of settler-colonialism in which they occur.
Impunity
Friday’s advisory opinion from the International Court of Justice is not the first time that the tribunal has weighed in on Israel’s occupation and annexation of Palestinian land.
In July 2004, the court issued an advisory opinion determining that Israel’s construction of a wall in the occupied West Bank and its associated settlement regime violated international law.
In the 2004 case, as in the new advisory opinion, the court held that Israel was obliged to “terminate its breaches of international law and to make reparation for all damage caused,” as the Palestinian human rights Al-Haq summarizes in a briefing paper published on the eve of Friday’s ruling. The court also maintained two decades ago that states were obliged “not to recognize the illegal situation” resulting from those violations.
However, as Al-Haq observes, enforcement of the court’s 2004 advisory opinion “has been unacceptably weak, a situation which has greatly contributed to the environment of impunity in which Israel has accelerated and expanded its commission of abuses against Palestinians.”
Ahead of the advisory opinion delivered on Friday, nearly 60 countries weighed in on the question of the legal consequences arising from Israel’s continued presence in the occupied Palestinian territory.
“The overwhelming majority” of those interventions during the hearings “expressed the view that Israel’s occupation of Palestine is characterized by unlawful policies and practices,” Al-Haq states.
The majority of the opinions presented before the court expressed the positions that Israel’s occupation violates the Palestinian people’s right to self-determination; that Israel practices apartheid or systematic racial discrimination in the West Bank and Gaza; and that “the occupation itself is illegal as a whole” and must end immediately, according to Al-Haq.
Significantly, a handful of states, including the Netherlands and China, recognized “the legitimacy of armed struggle and the use of force to achieve the inalienable right to self-determination” in the context of liberation from colonial rule.
Libya expressed the position that “it is a moral and legal obligation for third states to assist and support Palestinians in their legitimate struggle for liberation and independence,” as Al-Haq summarizes.
“No more excuses”
Following the announcement of the court’s opinion on Friday, Israel’s foreign ministry predictably rejected the opinion as “fundamentally wrong” and biased, while Benjamin Netanyahu, the prime minister, said that “the Jewish nation cannot be an occupier in its own land.”
Bezalel Smotrich, Israel’s far-right finance minister, issued a call to formally annex the West Bank in response to the court.
By contrast, the Palestinian mission to the UN as well as human rights and advocacy groups celebrated the ruling.
Al Mezan, a human rights group based in Gaza, stated that it “sets clear legal obligations for third states and international organizations, and we demand full compliance.”
The group noted that the court backed its position that “Israel’s effective control over Gaza meets the definition of belligerent occupation, imposing obligations on Israel … with regards to the over two million Palestinians living there.”
Al-Haq, which is based in the West Bank, said that the new advisory opinion “is a first step towards rectifying the generational harm of Israel’s illegal occupation, ongoing Nakba, settler-colonialism and apartheid to the Palestinian people, which must be ended, and all Israeli discriminatory measures and legislation repealed.”
The Palestinian Boycott, Divestment and Sanctions National Committee (BNC) said that the ruling “demands imposing immediate targeted sanctions on Israel, starting with a comprehensive military embargo.”
B’Tselem, an Israeli human rights organization, reacted to the court ruling by stating “no more excuses. The international community must force Israel to end the occupation.”
Francesca Albanese, the UN special rapporteur on the West Bank and Gaza Strip, likewise said it was a “historic day for international justice and the decolonization of Palestine.”
ICJ rejects Oslo cover
The advisory opinion clearly establishes the illegality of Israel’s occupation of the territories occupied since 1967 and reaffirms the illegality of the acquisition of territory by force.
It also affirms that the Oslo accords signed by Israel and the Palestine Liberation Organization in the mid-1990s do not relieve Israel of its legal obligations.
The bilateral negotiations initiated with the Oslo accords have been “non-existent for more than 10 years,” as Judge Nawaf Salam, the Lebanese president of the International Court of Justice, observes in his declaration appended to the advisory opinion.
Yet the framework of bilateral negotiations, however long dead, have been used by Israel’s allies, principally the US and European states, as a pretext to preserve the situation of impunity and treat Palestinian rights as subject to negotiation – a situation that the Palestinian writer Ghassan Kanafani presciently described in 1970 as “a conversation between the sword and the neck.”
Indeed, Israel in its intervention to the International Court of Justice said that an advisory opinion would be “harmful” to the peace process, while the US urged the court to avoid issuing a decision that could undermine negotiations toward a two-state solution.
Diana Buttu, a lawyer and former negotiator with the Palestine Liberation Organization, said that one of the big takeaways of the court ruling is “that it puts to rest the idea that Palestinians must negotiate an end to Israel’s military rule.”
“No land swaps; no accommodating settlers; no ‘generous offers’ because it isn’t Israel’s land to be generous with,” Buttu added.
This finding is particularly important as Washington and Tel Aviv are trying to impose a similar framework in the context of Gaza, forcing Palestinians to “negotiate” an end to Israel’s American-backed genocide.
“Scarce” victory
Yet the ruling may be viewed as legitimizing the violent usurpation of Palestinian land for the establishment of the state of Israel in 1948 – the ongoing injustice from which the 1967 occupation stems.
By limiting the scope of the advisory opinion to the question of the occupation since 1967, the General Assembly would seem to be normalizing the theft and colonization of Palestinian land in 1948, for which the UN paved the way through its inherently unjust 1947 partition plan.
In his declaration, President Salam points out that the failure of Israel to respect the Palestinian people’s right to self-determination “dates back to 1948 and not 1967,” as the General Assembly acknowledged in Resolution 32/20, adopted in 1977.
But Friday’s watershed advisory opinion – an “earthquake,” according to international lawyer MIchael Sfard – provides more legal levers for those defending Palestinian rights today, according to Alonso Gurmendi, a lecturer in international law at King’s College London.
“Do not discount the power of authoritative statements in the formation of world order,” Gurmendi stated. “Especially when world order is already changing so fundamentally.”
“Celebrate victories, they are few and scarce,” he added.
And while nothing may seem changed tomorrow, expect third states to “reconsider the nature of their relations with Israel” – commercial, military, economic and diplomatic – in the coming weeks and months, Sfard stated.