The International Court of Justice’s Advisory Opinion on the Legal Consequences of the Policies and Practices of Israel in the Occupied Palestinian Territory, finding Israel’s continued presence in the OPT unlawful, has already engendered a growing number of legal commentaries. But the response in the mainstream media has been decidedly muted, reports noting the Opinion’s lack of binding legal force and the absence of any dedicated implementation mechanism.
This article considers just one potential avenue of implementation, related to the Count’s finding that “Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned in the Occupied Palestinian Territory.” This formulation closely follows that used in the ICJ’s earlier 2004 Advisory Opinion on the Israeli Construction of a Wall in the West Bank and is notable in confirming the Court’s recognition of a state’s obligation to make reparation for an internationally wrongful act not just to another state but also to natural persons (individually or collectively).
Following the Wall Opinion, also pursuant to a request from the UN General Assembly, the GA’s most consequential action was to establish a UN Register of Damage “To serve as a record, in documentary form, of the damage caused to all natural and legal persons concerned as a result of the construction of the wall by Israel, the occupying Power.” Seated in Vienna and governed by a three-person board, the Registry had by May 2023 collected over 73,000 claims from the nine affected governorates in the West Bank. (Regulations governing the registration of claims can be found here.)
In the latest case, the declaration by Judge Tladi supplements the Court’s findings on reparation with this:
In view of the nature and scale of the violations of international law identified by the Court, and the potentially large pool of claimants resulting therefrom, the United Nations might want to consider the establishment of an international mechanism for reparation for damage, loss or injury, and arising from the internationally wrongful acts of Israel identified in the Opinion. The revitalization and expansion of the mandate of the United Nations Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory (UNRoD), which was established by the General Assembly in 2006 following the issuance of the Wall Advisory Opinion, is relevant in this respect (para. 60).
Whether the nature and scale of the violations could be addressed by an expansion of the mandate of the existing register or would require the establishment of a new one is essentially a practical question, but there is no doubting the size and complexity of the task. For its part, the State of Palestine in its written statement had outlined 12 heads or ‘examples’ of damages, evenly divided between damage caused to the Palestinian people (loss of life, limb, health, education, income and property) and damage more broadly to the Palestinian economy and environment, expropriation of natural resources and the cost of rebuilding and repair (see 7.68-9), noting that such examples were not “exhaustive.”
But while the Register of Damages for the Wall comprises damage claims limited to a specific violation (construction of the Wall) that was held by the ICJ to be unlawful ab initio, the latest Advisory Opinion covers a complex array of overlapping violations raising difficult questions around both the temporal and material scope of reparations that the ICJ barely addresses.
From when should the registration of damages begin?
The Court found by a large majority that Israel’s continued presence in the OPT was unlawful, but it did not express an opinion on the lawfulness of the occupation from its start in 1967, as Judges Nolte and Cleveland point out in their joint declaration (para. 4). A determination of continuing illegality is enough to require the end of Israel’s presence (“as rapidly as possible”) but is hardly sufficient for the calculation of damages which also needs a start date. Identifying the point at which the occupation itself became unlawful is moreover hugely complicated by the fact that although the Court denounced the “sustained abuse by Israel of its position as an occupying power”(para. 261), there did not appear to be a majority of judges in favor of any specific line of reasoning, with Judges Nolte and Cleveland arguing an abuse of Israel’s rights under the jus ad bellum, Judge Charlesworth and Judge Yusuf arguing that the continued occupation failed tests of necessity and proportionality (with the latter also finding the indefinite prolongation of the occupation a violation of the jus in bello), while Judge Xue, Judge Gómez Robledo and Judge Tladi foregrounded violation of the right of self-determination as a peremptory norm of international law (with the latter also characterizing Israel’s practice of separating Jewish and Palestinian communities as apartheid).
The failure to fix some date, even an approximation, for when the occupation as a whole slid into illegality arguably leaves the need for any assessment of damages to establish the factual circumstances of component violations (including violations of IHL and human rights law), something the Court was also at pains to avoid (para. 77). If that wasn’t enough of a challenge, the Court’s decision to fix its assessment of the legal situation stopping at the date of the request from the General Assembly (30 December 2022) leaves unresolved the debates over Israel’s (re)occupation of Gaza after 7 October 2023. (The issue of Israel’s policies and practices there are to a significant extent seized by the Court under the separate case brought by South Africa under the Genocide Convention, but limited only to that particular offense, and we are a long time away from resolution on the merits which will involve a very high burden of proof for genocide).
No doubt aware of the conundrum it was leaving the GA, the Court offered a final clarification before the operative section of the Opinion:
The Court emphasizes that its reply to the questions put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above, each of which is to be read in the light of the others, taking into account the framing by the Court of the material, territorial and temporal scope of the questions…
This could be read as an attempt to shrug off what others have described as “a substantial gap in the Court’s reasoning,” but it may also be an allusion to Art. 15 of the Articles on the Responsibility of States, which deals with composite acts, that is, “a series of actions or omissions defined in aggregate as wrongful.” Art. 15.2 provides:
In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.
It could thus be argued that if a series of policies and practices tipped Israel’s occupation of the OPT into unlawfulness, the scope of damages should extend not from the tipping point, but from the first in the series. The question would then be which first violation in the series acquired support from a majority of the Court.
The question of the temporal and material scope of damages was also confronted by the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine, established by the Council of Europe following a November 2022 resolution of the UN General Assembly. Despite massive losses incurred from 2014 by Russia’s occupation of Crimea and, in particular, its sponsorship of armed opposition groups in Eastern Ukraine, the mandate of the Register was limited to losses incurred on or after 24 February 2022. The Register’s task remains immense, covering the whole of the territory of Ukraine and war damages with a bill currently running at USD 0.5 trillion. That said, difficult legal and political arguments in the CoE were avoided by running the clock from the date of Russia’s full-scale invasion, an act so manifestly unlawful as to stamp all Russian practices in Ukraine from that date with illegality.
Which violations could be covered?
Might a Register of Damages for the OPT see an analogous limitation in the interests of achieving legal certainty and political support? For example, the focus could be on the settlements, unlawful ab initio and giving rise to claims for restitution as well as damages that are perhaps more quantifiable than some other losses. In a thread on X, Professor Eliav Lieblich points out that nearly all the issues before the ICJ were already litigated before the Israeli High Court of Justice but mostly disposed differently, because “the prohibition on settlements is excluded from the analysis in various procedural and substantive ways.” “This leads to a strange normative structure where the key relevant rule is absent,” he notes. This makes the construction of the Israeli settlements in the OPT, and the concomitant displacement of Palestinians, the signal violation of the occupation and annexation of Palestinian territory.
Support for such an approach might be gleaned from the Court’s findings on restitution:
Restitution includes Israel’s obligation to return the land and other immovable property, as well as all assets seized from any natural or legal person since its occupation started in 1967, and all cultural property and assets taken from Palestinians and Palestinian institutions, including archives and documents. It also requires the evacuation of all settlers from existing settlements and the dismantling of the parts of the wall constructed by Israel that are situated in the Occupied Palestinian Territory, as well as allowing all Palestinians displaced during the occupation to return to their original place of residence (para. 270, emphasis added).
In the event that such restitution proves impossible, the Court goes on, Israel has an obligation to compensate all natural and legal persons “having suffered any form of material damage as a result of Israel’s wrongful acts under the occupation.”
A register of damage from the construction of the settlements would be highly significant in itself, but it would be very far from covering the entirety of unlawful damage or indeed even a representative picture of such damage as a result of the occupation. A comprehensive database of civilian harm cases before the Israeli court over six decades is published by Ceasefire Centre for Civilian Rights in partnership with Dr. Haim Abraham of University College London and Professor Gilat Bachar of Temple University School of Law. The researchers note that the number of cases in which Israeli courts have examined the question of state liability in tort law for losses (including death, injury and property damage) that the Israeli military is alleged to have inflicted in the West Bank and Gaza exceeds the combined cases of Australia, Canada, the United Kingdom and the United States. However, a series of amendments passed by the Knesset between 2000 and 2012 widened the definition of the “combatant activities exception” in the law of tort, rendering Israel immune from liability not just for combat activities in the normal sense but for policing activities and actions of the civil administration in support of security goals.
From an international human rights and humanitarian law perspective, Israel’s policies and practices in the OPT are unlawful not just because of the prohibitions on forcible population transfers and on transfers of parts of its own civilian population into occupied territory, but also because Israel has failed to ensure the safety and security of the local population. One evidence of this is the effective denial of access to a court to provide redress where rights have allegedly been seriously violated.
Crafting a resolution to address the legal consequences of the occupation, the General Assembly now faces the dual challenge of delivering concrete action which is at the level of the violations found by the ICJ but which goes beyond the merely symbolic. One such action could be the creation of an international register of damage with the capacity to record claims arising from a spectrum of damage from the occupation, including losses stemming from settlement activity and civilian death and injury unlawfully caused by Israeli security forces.
In drawing attention to some of the thornier legal questions concerning the material and temporal scope of reparations, this article hopes to help start an informed debate about the creation of an international register of damages for the OPT. In any case, the baton has now been passed to the UN’s political institutions to show that egregious violations of international law – and advisory opinions of the ICJ – carry consequences.