(Editor’s note: Readers can find Just Security’s coverage of the International Court of Justice here.)
Israel must end “as rapidly as possible” its unlawful occupation of Palestinian territory (including the Gaza Strip), the International Court of Justice (ICJ) pronounced in a landmark advisory opinion issued on Friday, July 19.
The Court’s panel of judges ruled overwhelmingly against Israel’s actions and policies in the Occupied Palestinian Territory (OPT), which include the West Bank, East Jerusalem, and the Gaza Strip.
- By eleven votes to four, the Court held: (1) Israel’s continued presence in the OPT is unlawful; and (2) Israel is under an obligation to end its unlawful occupation “as rapidly as possible.”
- By fourteen votes to one, the Court held further that: (1) Israel is under an obligation to cease immediately all new settlement activities, and to evacuate all settlers from OPT; and (2) Israel has an obligation to make reparations for the damage caused to all natural or legal persons concerned in the OPT.
- By twelve votes to three, the Court held additionally that: (1) all States have the obligation not to recognize as legal Israel’s presence in the OPT and not to render aid or assistance in maintaining the situation created by the continued presence of Israel in the OPT; and (2) international organizations, including the United Nations, and particularly the General Assembly and the Security Council, should consider the precise modalities and act toward bringing an end “as rapidly as possible” to the unlawful presence of Israel in the OPT.
A strong majority of the judges – including Sarah Cleveland (United States), Xue Hanqin (China), Leonardo Nemer Caldeira Brant (Brazil), Georg Nolte (Germany), and Dire Tladi (South Africa) – voted in favor of each of these holdings. Vice-President Julia Sebutinde (Uganda) is the only judge to vote against all of these holdings and also issued a dissenting opinion. Many judges also have submitted separate opinions and declarations.
The ICJ began examining Israel’s occupation on Dec. 30, 2022, after the UN General Assembly requested an advisory opinion in Resolution 77/247. The Resolution asked specifically about the legal consequences of Israel’s violations of the Palestinian people’s right to self-determination through occupation, settlement, and annexation of Palestinian territory since 1967, the implications of these actions on the legal status of the occupation, and the responsibilities of all States and the U.N. regarding this status.
ICJ: Israel’s Actions in the OPT Violate Fundamental Principles of International Law
From the start of the opinion, the Court affirmed Israel’s obligations under international law as the occupying power in the OPT. It held that Israel’s status as occupying power in the West Bank and East Jerusalem has not changed since 1967, and that Israel’s 2005 withdrawal from the Gaza Strip did not “entirely release” Israel of its obligations as the occupier in Gaza since it retained significant control there, including over taxes, borders (land, sea, and air), and entry/exit of goods and people (paras. 86-94). The Court further noted that Israel’s control over Gaza has increased since Hamas’ October 7 attack, and that its obligations are “commensurate with the degree of its effective control over the Gaza Strip.” (paras. 93-94).
Furthermore, as part of identifying the applicable law and obligations, the Court determined that the right of Palestinians to self-determination is not hampered by the Oslo Accords, which recognize Israel’s right to maintain its presence in the OPT and which were intended to promote a two-State solution. The Accords “cannot be understood to detract from Israel’s obligations under pertinent rules of international law,” the Court concluded (para. 102). This understanding is reflected throughout the decision.
The Court held that Israel’s policies and practices – e.g., settler policy, annexation, discriminatory legislation and measures – in the OPT violated international law. It particularly noted that “[t]he sustained abuse by Israel of its position as an occupying power, through annexation and an assertion of permanent control over [the OPT] 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 [OTP] unlawful.” (para. 261).
In making this determination, the Court found a number of international legal violations related to Israel’s settlement policies in the West Bank and East Jerusalem. For instance, the Court found the transfer of settlers through confiscation or requisitioning large areas of Palestinian lands to be in violation of Article 49 of the Fourth Geneva Convention, which prohibits individual or mass forcible transfers and deportations from occupied territory (paras. 115-119). The Court also found Israel’s systematic failure to prevent or punish attacks by settlers against Palestinian people, as well as its excessive use of force, contrary to Israel’s obligations under various international treaties, including Article 46 of Hague Regulations, Article 27 of Fourth Geneva Convention, and Article 6(1) and Article 7 of the International Covenant on Civil and Political Rights (ICCPR) (paras. 148-154).
The opinion went on to state that Israel’s policies “amount to annexation” of large parts of the OPT and thus impede on the right of the Palestinian people to self-determination. The Court reiterated that “Israel is not entitled to sovereignty” over any part of the OPT and that “Israel’s security concerns cannot override [the] principle of prohibition of acquisition of territory by force.” (Para. 254). It concluded that the prolonged character of these “unlawful policies” violates the “right of the Palestinian people to self-determination.” (para. 243).
The Court further held that Israel’s policies systematically discriminate against Palestinian people. Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) requires that States “condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature” – and the Court here italicized the word “apartheid” in that provision. The Court then determined that Israel’s legislation and measures constitute a breach of Article 3 as those official actions involved both physical separation (e.g., through residence permit system) and juridical separation (e.g., legislation imposing restrictions from which settlers are exempt) (paras. 223-229). President Nawaf Salam (Lebanon) dedicated much of his separate opinion to a more detailed discussion “to focus specifically on two of these policies which, in my view, demonstrate the systematic and deliberate nature of Israel’s conduct in breach of international law in the Occupied Palestinian Territory, namely settlement and apartheid.”
Aftering making these determinations, the Court articulated the legal consequences for both Israel and other States. The Court held that Israel must cease unlawful activities in the OPT and make reparations (paras. 268-269). The Court notably endorsed the right of return for some Palestinian refugees, stating that all Palestinians displaced during the occupation (1967 onwards) must be allowed “to return to their original place of residence.” (para. 270). The Court also held that all States must work with the United Nations to help end Israel’s illegal presence in OPT and to recognize the right of the Palestinian people to self-determination (para. 275).
Although this opinion does not directly address the war in Gaza, that context looms large. In a separate opinion, Judge Cleveland discussed the issue of Israel’s right to defend itself, noting that:
None of the circumstances that lead the Court to conclude that Israel’s presence violates the rules regarding the use of force apply to the Gaza Strip, however. The Court does not find that Israel has expanded settlements and related infrastructure in the Gaza Strip. Indeed, Israel evacuated its settlements from Gaza in 2005 (Advisory Opinion, paras. 68 and 114). The Court does not suggest that Israel has annexed, or has sought to annex, the Gaza Strip. Nor does it contend that Israel otherwise violated the prohibition on the use of force between 2005 and 2023 with respect to Gaza. Thus, the core conclusion of the Court — that Israel’s policies and practices as an occupying Power violate the prohibition of the acquisition of territory by force, and thus exclude any justification of self-defence — is not applied to Gaza.
Her concurrence also reads, in part, like a dissent. Judge Celevland writes, for example, “The temporal limitation imposed by the Court (Advisory Opinion, paras. 81 and 284) also makes very unclear what it means for the Court to say that Israel must withdraw from the Gaza Strip as rapidly as possible, somehow without taking into account the circumstances resulting from Israel’s response to the 7 October 2023 attack” (emphasis added).
Notably, Israel did not participate fully in the proceedings. It submitted only a five-page written statement and a set of annexes, and chose not to participate in the oral proceedings.
Context of the Opinion
This ICJ advisory opinion comes against the backdrop of Israel’s months-long military assault on Gaza, which has killed nearly 40,000 people and injured nearly 90,000 others according to the Gaza Health Ministry. It is the latest in a flurry of activity from international courts regarding Israel. In a separate case related to allegations of genocide in the Gaza Strip (South Africa v. Israel), the Court issued a series of Provisional Measures Order holding that Israel’s actions to minimize harm to civilians did not sufficiently remove the risk of irreparable harm and ordered Israel to take specific actions including refraining from acts under the Genocide Convention, preventing and punishing incitement to genocide, and taking effective measures to allow for the provision of humanitarian assistance, among others. The International Criminal Court is also currently considering a request by Prosecutor Karim Khan for arrest warrants against senior Hamas leaders and Israeli officials, including Prime Minister Benjamin Netanyahu.
The opinion also contrasts sharply with recent developments in Israeli policy in the West Bank. The ICJ’s call to evacuate all 700,000 Israeli settlers from Palestinian territory comes at a time when settlers are increasingly committing violence across the West Bank while also gaining political power in Israel. Just this month, Israel’s government approved plans for the largest seizure of land in the West Bank in three decades. Furthermore, the Israeli Knesset on Wednesday voted overwhelmingly against the establishment of a Palestinian State. The resolution passed with the support of 68 deputies, including representatives from Netanyahu’s coalition and Minister Benny Gantz’s centrist National Unity party. Far-right Israeli ministers Bezalel Smotrich and Itamar Ben-Gvir, both of whom are settlers themselves, have already called for annexation of large parts of the West Bank in response to the ICJ’s ruling.
The ICJ’s opinion will loom in the background of Netanyahu’s upcoming meeting with U.S. President Joe Biden in Washington this month. Netanyahu and Biden, already increasingly at odds over policy in Gaza, now must contend with both a growing international condemnation of Israeli policy and the recent Knesset vote for a resolution opposing the two-State solution.
Read the full advisory opinion below: