ICJ: An Illegal Occupation
[22 July 2024] – On 19 July 2024, the International Court of Justice (“ICJ” or “the Court”) gave an advisory opinion on the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory (West Bank, East Jerusalem and Gaza). The request for an advisory opinion was referred to the Court by the UN General Assembly in December 2022.
The Court noted that the applicable rules under international law to determine the questions referred depends on the status of the territory under international law. The Court went on to determine that the Gaza Strip is an integral part of the territory that was occupied by Israel in 1967, and notwithstanding the 2005 disengagement plan, Gaza remains occupied territory along with the West Bank and East Jerusalem.
The Court then determined that the applicable legal principles are contained within the UN Charter (1945), the Fourth Geneva Convention (1949), the Hague Regulations (1907), the International Convention on the Elimination of All Forms Racial Discrimination (CERD)(1965), the International Covenant on Economic, Social and Cultural Rights (ICESCR)(1966), the International Covenant on Civil and Political Rights (ICCPR)(1966) and customary international law. Foremost among these principles are:
- The prohibition of the acquisition of territory by threat of the use of force; and
- The right of peoples to self-determination.
Having identified the relevant legal principles, the Court then considered a number of specific features of Israel’s 57-year occupation, noting that the causes of the occupation do not affect the powers or duties of the occupying Power under international law. The features of the occupation considered by the Court included: Israel’s settlement policy; annexation of parts of the OPT; discriminatory legislation and measures; and the right to self-determination. In respect of these issues, the Court concluded that:
- Israel’s settlements in the West Bank and East Jerusalem are illegal;
- Israel’s policies and practices amount to annexation of large parts of the OPT contrary to the prohibition against the acquisition of territory by force;
- The regime of comprehensive restrictions imposed by Israel on Palestinians in the OPT constitutes systematic discrimination based on, inter alia, race and is in breach of the prohibition against racial segregation and apartheid;
- The prolonged character of Israel’s unlawful polices and practices aggravates the violation of the right of the Palestinian people to self-determination; and
- The sustained abuse by Israel of its position as an occupying Power, through annexation and continued frustration of the right of the Palestinian people to self-determination, renders the occupation unlawful.
Finally, the Court considered the legal consequences of these findings on Israel, other States and the UN.
Israel – Israel has an obligation to bring an end to its presence in the OPT as rapidly as possible and must provide reparations for the damage caused by its internationally wrongful acts.
Other States – UN Member States are under an obligation not to recognize any changes in the physical character or demographic composition, institutional structure or status of the OPT, except as agreed between the parties. This obligation includes abstaining from entering into treaties, economic, trade and diplomatic dealings with Israel that recognize its illegal presence in the OPT. Further, Member States are under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the OPT. And finally, all States parties to the Fourth Geneva Convention have the obligation to ensure compliance by Israel with the Convention.
UN – The obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the OPT also applies to the UN.
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