On July 19, 2024, the International Court of Justice (ICJ), delivered its Advisory Opinion on the legal consequences of Israel's policies and practices in the Occupied Palestinian Territory, including East Jerusalem. This opinion was given at the Peace Palace in The Hague, where the Court is located.

JUDGEMENT/ADVISORY OPINION IN BRIEF

The Court found that Israel’s ongoing presence in the Occupied Palestinian Territory is illegal and must end as soon as possible. Israel is also required to stop all new settlement activities and remove existing settlers from the Occupied Palestinian Territory. Additionally, Israel must compensate for the damages caused to individuals and organizations in the Occupied Palestinian Territory. All countries and international organizations, including the United Nations, must not recognize or support Israel’s illegal presence. The Court recommended that the United Nations, especially the General Assembly and the Security Council, take appropriate actions to swiftly address and end Israel’s unlawful presence as quickly as possible.

Let's first understand:

WHAT IS ADVISORY OPINION?

WHEN IT IS GIVEN?

WHETHER IT HAS BINDING EFFECT?

The ICJ handles two types of cases:

1. Contentious Cases: These are legal disputes between countries. The Court's decisions in these cases are final and binding.

2. Advisory Proceedings: These involve legal advice requested by UN bodies and agencies. The opinions given in these proceedings are influential but not binding. They are delivered in a public session and, despite not being mandatory, often carry significant weight due to the ICJ's authority, influencing the actions of the requesting entity in line with international law.

The ICJ can give advisory opinions on legal questions as per Article 65 of its Statute and Article 96 of the UN Charter. The General Assembly can ask the ICJ for an opinion on any legal question. The ICJ must ensure the question is legal.

THE CASE

In the current case, the General Assembly asked about the legal consequences of Israel's policies as an occupying power and their impact on the legal status of the occupation since 1967. The ICJ confirmed these are legal questions and agreed to give an opinion. Although the ICJ has the discretion to refuse, it usually provides opinions to support the UN's activities.

The United Nations General Assembly asked the International Court of Justice (ICJ) for an advisory opinion on specific legal questions through resolution 77/247, adopted on December 30, 2022. The Secretary-General officially sent this request to the ICJ on January 17, 2023. The questions are:

1.   What are the legal consequences of Israel's ongoing violation of the Palestinian people's right to self-determination, its prolonged occupation, settlement, and annexation of Palestinian territory since 1967, including changes to Jerusalem's demographics and status, and its related discriminatory laws and measures?

2.   How do these policies and practices affect the legal status of the occupation, and what legal consequences arise for all States and the United Nations?

FACTS, HISTORY & CHRONOLOGY

Mandate and Boundaries of Palestine

After World War I, Palestine, previously part of the Ottoman Empire, was placed under a Class "A" Mandate by the League of Nations. This mandate was given to Great Britain. According to the League Covenant, communities from the former Turkish Empire that were developing towards independence could be provisionally recognized as nations. The boundaries of Mandatory Palestine were defined by several agreements, including a British memorandum in 1922 and the Anglo-Transjordanian Treaty in 1928.

United Kingdom's Withdrawal and UN Plan

In 1947, the United Kingdom decided to leave Palestine by August 1948, later moving the date to May 15, 1948. On November 29, 1947, the UN General Assembly adopted Resolution 181, recommending the partition of Palestine into two states, one Arab and one Jewish, and establishing a special international regime for Jerusalem. The Jewish population accepted this plan, but the Arab population and surrounding Arab states rejected it, claiming it was unfair.

Israel's Independence and Conflict

On May 14, 1948, Israel declared independence, citing UN Resolution 181. This led to armed conflict between Israel and several Arab states, and the partition plan was not implemented.

Armistice and Demarcation Lines

On November 16, 1948, the UN Security Council called for an armistice in Palestine. In 1949, armistice agreements were signed in Rhodes between Israel and neighboring states, establishing demarcation lines known as the "Green Line," which separated Israeli and Arab forces. These lines could be adjusted by mutual agreement.

Israel's UN Membership

On November 29, 1948, Israel applied for UN membership, referencing Resolution 181. On May 11, 1949, Israel was admitted as a UN member. The General Assembly acknowledged Israel’s declarations regarding the implementation of Resolution 181.

Creation of the PLO

In 1964, the Palestine Liberation Organization (PLO) was established to represent the Palestinian people.

Six-Day War

In 1967, Israel fought Egypt, Syria, and Jordan in the Six-Day War. By the end of the war, Israel occupied all territories of Palestine beyond the Green Line.

Security Council Resolution 242

On November 22, 1967, the UN Security Council adopted Resolution 242, emphasizing that acquiring territory by war is inadmissible. It called for Israel to withdraw from occupied territories and for all states in the area to respect each other's sovereignty and live in peace within secure boundaries.

Settlements and Jerusalem

After 1967, Israel began establishing settlements in occupied territories and changed the status of Jerusalem. The UN Security Council condemned these actions, stating that all Israeli measures to alter Jerusalem’s status were invalid.

October 1973 War

In October 1973, another war broke out between Israel and Egypt and Syria.

Security Council Resolution 338

On October 22, 1973, the UN Security Council called for a ceasefire and the immediate implementation of Resolution 242. It also urged the parties to start negotiations immediately.

Recognition of the PLO

On October 14, 1974, the UN General Assembly recognized the PLO as the representative of the Palestinian people. On November 22, 1974, it acknowledged the Palestinian right to self-determination.

Peace Treaties with Egypt and Jordan

On September 17, 1978, Israel and Egypt signed the Camp David Accords, leading to a peace treaty in 1979. On October 26, 1994, Israel signed a peace treaty with Jordan, fixing their boundary according to the Mandate for Palestine.

Proclamation of the State of Palestine

On November 15, 1988, the PLO declared the establishment of the State of Palestine, referring to Resolution 181.

Oslo Accords

In 1993 and 1995, Israel and the PLO signed the Oslo I and Oslo II Accords. In 1993, the PLO recognized Israel's right to exist, and Israel recognized the PLO as the representative of the Palestinian people. The Oslo Accords set guidelines for future negotiations and divided the West Bank into Areas A, B, and C.

Transfer of Powers

The Oslo Accords required Israel to transfer some powers and responsibilities in Areas A and B of the West Bank to Palestinian authorities. These transfers have been limited, with Israel retaining significant control over security.

Construction of the Wall

In the early 2000s, Israel began building a wall in the West Bank and East Jerusalem to prevent infiltration. Despite a 2004 court opinion stating that the wall was illegal, construction continued, along with the expansion of settlements.

Disengagement and Settlements

By 2005, Israel evacuated settlers from 21 settlements in Gaza and four in the West Bank. By 2023, about 465,000 settlers lived in the West Bank and 230,000 in East Jerusalem. These settlers are mainly Israelis and non-Israeli Jews eligible for Israeli citizenship.

Roadmap to Peace

On November 19, 2003, the UN Security Council endorsed the Quartet's Roadmap to a Two-State Solution. The Quartet includes representatives from the US, EU, Russia, and the UN. The resolution called for the parties to meet their obligations under the Roadmap and achieve the vision of two states living in peace.

Observer Status for Palestine

On November 29, 2012, the UN General Assembly granted Palestine non-member observer state status, recalling Resolution 181.

Efforts for Peace

In 2016, the UN Security Council adopted Resolution 2334, urging intensified efforts for a lasting peace based on UN resolutions, the Madrid terms, the Arab Peace Initiative, and the Quartet Roadmap. In 2024, the General Assembly and the Security Council reiterated support for a two-state solution and stressed the importance of unifying the Gaza Strip and the West Bank under the Palestinian Authority.

SCOPE AND MEANING OF THE QUESTIONS FROM THE GENERAL ASSEMBLY

The Court examined two key questions posed by the General Assembly. The first question concerned the legal effects of Israel's actions against the Palestinian people. This included Israel's ongoing violations of Palestinians' right to self-determination, its long-term occupation, settlement, and annexation of Palestinian territories, as well as its discriminatory laws. The second question addressed how these Israeli policies and practices impacted the legal status of the occupation and the legal consequences for all states and the United Nations.

The Court focused on the details and context of these questions. The first question outlined three main issues: Israel's violation of Palestinian self-determination, its occupation and settlement activities since 1967, and its discriminatory measures. The Court had to decide whether these actions were against international law, as suggested by the General Assembly. To do this, the Court reviewed various sources and evidence, including UN documents and other credible reports.

The Court did not conduct a detailed fact-finding mission on specific incidents but evaluated the overall nature of Israel's policies and practices. The geographical focus included the West Bank, East Jerusalem, and Gaza Strip. The term "Holy City of Jerusalem" in the question was interpreted as referring specifically to East Jerusalem.

The Court considered the timeframe of the policies and practices starting from 1967, while also taking relevant historical context into account. Recent events, such as the Gaza Strip attack on October 7, 2023, were not included.

The second part of the second question asked how Israel's actions affected the legal status of its occupation. The Court assessed whether Israel's policies and practices changed the legal standing of its occupation and its continued presence in the Palestinian territories. It then determined the legal consequences for Israel, other states, and the UN based on its findings.

APPLICABLE LAW

The Court needed to determine which laws applied to the questions posed by the General Assembly. The Assembly's request referenced several sources of international law, including the United Nations Charter, international humanitarian law, human rights law, relevant UN resolutions, and a previous advisory opinion from the Court.

First, the Court had to understand the status of the Occupied Palestinian Territory under international law. It then decided which international laws were relevant for addressing the Assembly's questions.

The General Assembly's questions assumed that the Occupied Palestinian Territory was under Israeli occupation. The Court had previously explained that a territory is considered occupied when a hostile army controls it, as described in the Hague Regulations. The Court had confirmed that Israel had been occupying parts of this territory since the 1967 conflict.

Although the Court had not addressed the Gaza Strip's status in its previous opinion, it acknowledged that Israel occupied Gaza in 1967. In 2004, Israel began withdrawing its military from Gaza, and by 2005, it had removed its settlements from there. However, despite this withdrawal, reports indicated that Israel still controlled Gaza’s airspace, maritime borders, and some land crossings, among other aspects.

The Court needed to assess how this withdrawal affected Israel's obligations under occupation law. It was not necessary for Israel to maintain a military presence to be considered an occupying power. Instead, the key factor was whether Israel could still exercise authority over the territory.

Given Israel's continued control over significant aspects of Gaza, including borders and infrastructure, the Court believed that Israel's obligations under occupation law remained.

The Court applied various rules and principles to address the Assembly's questions. These included prohibitions on acquiring territory by force and the right of people to self-determination, which are part of international law and the UN Charter. International humanitarian law, particularly the Geneva Convention, also applied, as it governs the treatment of civilians in occupied territories.

Additionally, international human rights law applied. Israel was a party to several human rights treaties, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. These treaties remained in effect even during conflict or occupation. The Court considered these laws alongside humanitarian rules.

The Oslo Accords, which involved agreements between Israel and the Palestinians, were also relevant. These Accords emphasized human rights and the rule of law and recognized the Palestinians' right to self-determination. However, they did not lessen Israel’s obligations under international law.

The Court used international humanitarian law, human rights law, and relevant UN resolutions to address the questions posed by the General Assembly, considering all applicable legal frameworks and agreements.

ISRAEL’S POLICIES AND PRACTICES IN THE OCCUPIED PALESTINIAN TERRITORY

The Court examined whether Israel’s actions in the Occupied Palestinian Territory met its international legal obligations. This review covered several issues, including the prolonged nature of the occupation, Israel’s settlement policy, the annexation of territories occupied since 1967, and any discriminatory measures adopted by Israel. The Court also considered how these policies affected the Palestinian people's right to self-determination.

PROLONGED OCCUPATION

The Court looked into the legal consequences of Israel’s extended occupation of the Palestinian territories, which had lasted over 57 years. It explored the relationship between Israel, as the occupying power, and the local population based on the laws of occupation.

As an occupying power, Israel had certain responsibilities under international law. It was required to manage the territory for the benefit of the local people. This responsibility was not affected by how the occupation began. Occupation was meant to be temporary and did not grant the occupying power permanent control or ownership of the territory.

The Fourth Geneva Convention and the Hague Regulations outlined the duties of an occupying power. These included respecting local laws and not altering the status of public officials or local legal systems. The occupation was intended to be temporary, and the occupying power should only exercise authority to benefit the local population.

The Fourth Geneva Convention set some limits on how long certain obligations applied. However, this did not mean that an occupying power was freed from its duties in cases of prolonged occupation. If local authorities had not taken over the governance, the occupying power had to continue fulfilling its obligations.

Time did not grant additional powers to the occupying power. The occupation remained temporary, and the occupying power could not claim ownership of the territory or expand its powers beyond those outlined by international law.

Even if the occupation lasted a long time, its legal status under international law did not change. The presence of the occupying power had to always comply with rules about the use of force and the prohibition of acquiring territory through force. The Court assessed whether Israel’s long-term presence in the Palestinian territories fit these legal requirements.

The Court then examined Israel’s specific policies and practices, starting with its settlement policy.

SETTLEMENT POLICY

Overview

The Court investigated the legal effects of Israel's settlement policy in the Occupied Palestinian Territory. The term "settlement" was clarified to mean Israeli communities built or supported by Israel in the occupied areas. This term included all structures and processes involved in establishing and expanding these communities. The French version of the resolution used "colonisation," suggesting the Court needed to examine Israel's settlement policy in a broad sense.

Settlements vs. Outposts

The Court recognized the difference between "settlements" and "outposts," with outposts often being established against Israeli domestic law. However, the key issue was whether these communities were part of Israel’s settlement policy. The Court noted that Israel frequently retroactively legalized outposts and provided them with necessary infrastructure.

Historical and Ongoing Settlement Policy

The Court pointed out that Israel had been implementing its settlement policy throughout its occupation of Palestinian territories. Various UN bodies had extensively studied and reported on these settlements. For instance, the Human Rights Council had set up an independent mission to investigate how Israeli settlements affected Palestinian rights. Regular reports from the UN Secretary-General and the High Commissioner for Human Rights detailed the establishment and expansion of these settlements.

From 1967 to 2005, Israel's settlement policy affected the West Bank, East Jerusalem, and the Gaza Strip. After 2005, when Israel removed settlements from Gaza, the settlement policy continued in the West Bank and East Jerusalem. The Court focused on these areas but noted that the policy in Gaza before 2005 was similar to what continued in the West Bank and East Jerusalem.

TRANSFER OF CIVILIAN POPULATION

Legal Prohibition

In a previous ruling, the Court had determined that Israel’s settlement policy violated a specific rule in the Fourth Geneva Convention. Article 49 of this Convention prohibited an occupying power from transferring its own civilian population into the territory it occupies. The Court clarified that this rule not only banned forced relocations but also any measures taken to encourage or organize such movements. The purpose of the rule was to prevent any form of settlement activity by an occupying power.

Incentives for Relocation

Evidence revealed that Israel had been providing incentives to encourage Israeli individuals and businesses to move to the West Bank. This included support for the development of settlements through various measures. Reports from the UN and other sources indicated that Israel had actively promoted the relocation of its citizens and the expansion of settlements, which was in conflict with the Geneva Convention’s rules.

Legalization of Outposts

Israel had also been legalizing outposts that were initially established in violation of its own laws. For instance, in early 2023, Israel decided to officially recognize ten outposts in the West Bank. The Court viewed these actions as encouragement for the transfer of Israeli civilians to these areas, which violated the Geneva Convention’s prohibition on such transfers.

Infrastructure Development

To support these settlements, Israel invested heavily in building infrastructure in the West Bank and East Jerusalem. This included roads, water systems, and other facilities that integrated these settlements more closely into Israeli territory. The rapid growth of settlements and their infrastructure further entrenched the occupation.

Impact on Local Population

The prohibition against transferring an occupying power’s civilians into occupied territory was strict, regardless of whether it displaced the local population. However, the transfer of Israeli settlers into the West Bank and East Jerusalem had indeed led to the displacement of Palestinian residents.

The Court concluded that Israel’s actions in moving and maintaining its civilian population in the West Bank and East Jerusalem breached Article 49 of the Fourth Geneva Convention.

CONFISCATION OR REQUISITIONING OF LAND

Land Seizure for Settlements

Israel's expansion of settlements in the West Bank and East Jerusalem involved the seizure of large amounts of land. Since 1967, Israel had taken over more than 2 million dunams (approximately 2,000 square kilometers) of land in Area C, which constituted over one-third of the West Bank. Some of this land, which had been privately owned, was reclassified by Israel as State land. This reclassification allowed Israel to use it for public purposes, primarily benefiting Israeli settlements.

Use of Absentee Property Law

In East Jerusalem, Israel used the Absentee Property Law of 1950 to confiscate Palestinian land. This law permitted the government to take property if the owner had not been present in the area after November 27, 1947. This legal approach facilitated Israel’s seizure of Palestinian property in East Jerusalem.

Legal Prohibitions on Land Confiscation

International law, specifically Article 46 of the Hague Regulations, prohibited the confiscation of private property, with no exceptions allowed, even for military reasons. Article 52 also stipulated that requisitions (or taking of goods) from people could only be for military needs. According to Article 55, public property had to be managed by the occupying power for the benefit of the local population. In this case, however, land taken for Israeli settlements was used to benefit Israeli settlers, not the local Palestinian population. This practice did not comply with these legal requirements.

Consistency with Previous Rulings

This conclusion aligned with a previous ruling by the Court regarding the construction of the wall in the Occupied Palestinian Territory. The Court had found that the construction of the wall, which involved land confiscation, violated international law. The wall was designed to enclose most Israeli settlements within its boundaries. Since the wall’s construction supported the settlement policy, the same legal issues applied to all land confiscated for supporting settlements, including areas between the wall and the 1949 Green Line, security zones, and closed military zones.

EXPLOITATION OF NATURAL RESOURCES

The Court explained that, according to international law (Article 55 of the Hague Regulations), an occupying power is permitted to manage and use the natural resources of an occupied territory, such as forests and agricultural lands, only for the benefit of the local population and not beyond what is necessary for the occupation. The occupying power was required to protect these resources and ensure that their use did not harm the environment. This principle was also supported by the Rio Declaration of 1992, which emphasized the protection of the environment and natural resources under occupation.

In a case involving the Democratic Republic of the Congo and Uganda, the Court highlighted the principle of permanent sovereignty over natural resources. Although Uganda’s soldiers were found to have exploited Congolese resources, there was no evidence of a systematic governmental policy by Uganda to exploit these resources. Therefore, the principle of permanent sovereignty was not applied in this instance. However, if an occupying power had a policy of exploiting resources against international law, it would violate the principle of permanent sovereignty over natural resources.

The Court observed that Area C, part of the Occupied Palestinian Territory, contained valuable natural resources. Evidence suggested that Israel was exploiting these resources—such as water and minerals—for its own benefit, often to the detriment of the Palestinian population.

Since the start of the occupation in 1967, Israel had controlled the water resources in the Occupied Palestinian Territory. In 1982, control was transferred to Mekorot, an Israeli national water company. Reports indicated that Israel prioritized water supply for its settlements, leading to frequent water shortages for Palestinians, who also faced restrictions on building and maintaining their own water infrastructure.

This control had resulted in Palestinians having access to water below World Health Organization standards. Additionally, Israel’s policies had significantly reduced the amount of agricultural land available to Palestinians and increased water pollution, affecting their agricultural sector and employment opportunities.

Israel’s policies in the Jordan Valley and the Dead Sea demonstrated that settlements extracted minerals and used fertile lands, often leaving Palestinians at a disadvantage. Israeli-operated quarries in Area C extracted resources primarily for Israel, while Palestinian companies had not been permitted to quarry since 1994.

The Security Council had stressed the importance of protecting water resources in occupied territories. The General Assembly had consistently called for Israel to cease exploiting and depleting natural resources in these areas.

Based on the evidence, the Court concluded that Israel’s use of natural resources in the Occupied Palestinian Territory violated international law. By diverting resources to benefit its own population and settlers, Israel had failed to fulfill its role as an administrator and did not ensure adequate access to water for Palestinians. This exploitation of resources also contradicted the Palestinian people’s right to control their natural resources.

EXTENSION OF ISRAELI LAW

According to Article 43 of the Hague Regulations, an occupying power should generally respect the existing laws of the occupied territory unless it is absolutely unable to do so. Article 64 of the Fourth Geneva Convention allows an occupying power to impose new laws if they are necessary to fulfill its obligations, maintain order, and ensure security. However, these new laws should not completely replace the local laws unless absolutely necessary.

In the case of the West Bank, Israel had extended its legal system beyond military law. This extension included Israeli domestic laws that specifically applied to Israeli settlers, covering areas such as criminal law, health insurance, taxation, and elections. Consequently, there were two separate legal systems: one for Israeli settlers and another for Palestinians, who were subject to military law and courts.

Since the occupation began, Israel had largely replaced local laws with its own military laws in the West Bank. Settlers benefited from Israeli civil laws and social benefits, while Palestinians were tried under military law. This meant that settlers enjoyed rights and protections not available to Palestinians, who faced trials in military courts.

Settler councils had taken on administrative roles in the West Bank settlements. Recently, decision-making power over civil affairs in Area C had been transferred from the military to a civilian minister in the Israeli Ministry of Defence.

In East Jerusalem, Israeli domestic law had been in effect since 1967. Israel had expanded its jurisdiction over East Jerusalem and declared it as part of Israel. This was supported by laws that prohibited delegating power to foreign authorities. In practice, Israel treated East Jerusalem as its own territory, applying Israeli law exclusively.

The Court questioned whether Israel’s extension of its laws to the West Bank and East Jerusalem met the requirements of Article 64 of the Fourth Geneva Convention. The transfer of Israeli civilians to these areas was not justified under international law, and the comprehensive application of Israeli law did not align with the conditions set out in the Geneva Convention.

The Oslo Accords, agreements between Israel and the Palestine Liberation Organization (PLO), confirmed that Israel retained responsibility for security and certain administrative functions in the occupied territories. These agreements did not expand Israel’s powers beyond those allowed under international law. Instead, they maintained the existing framework, which did not support the extensive application of Israeli law.

The Court concluded that Israel’s use of its regulatory authority in the occupied territories was inconsistent with the rules outlined in Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention.

FORCED DISPLACEMENT OF THE PALESTINIAN POPULATION

The Court examined how Israel’s settlement policy affected Palestinians, particularly regarding their forced displacement. In a previous opinion, the Court had noted that Israel’s settlement activities contributed to the departure of Palestinians from parts of the West Bank and East Jerusalem.

Large-scale land confiscation and denial of access to resources had made it difficult for Palestinians to sustain their livelihoods, leading many to leave. Israeli military actions had exacerbated the situation, with numerous reports indicating that Israel evicted Palestinians annually through property demolitions and zoning laws. For example, between June 2022 and May 2023, over a thousand Palestinians had been displaced due to property demolitions and confiscations. Similarly, over 700 had been displaced from April 2021 to March 2022, and eviction orders affecting about 1,150 Palestinians in 2022 had been upheld by the Israeli High Court.

According to Article 49 of the Fourth Geneva Convention, all forced transfers and deportations from occupied territories were prohibited, regardless of the reason. This included forced movement within the occupied territory itself. The Convention allowed for evacuation only in rare cases for the safety of the population or urgent military reasons, and even then, those evacuated should be returned once the situation stabilized. This meant that permanent or indefinite displacements were not allowed.

The Court concluded that Israel’s policies, such as forced evictions, extensive demolitions, and movement restrictions, often left Palestinians with no choice but to leave their homes. Since these measures were not temporary and frequently involved reallocating land to Israeli settlements, they violated the prohibition against forced displacement under the Geneva Convention.

VIOLENCE AGAINST PALESTINIANS

The Court noted that Israel’s settlement policy had led to increased violence against Palestinians by both settlers and security forces.

The right to life and protection from violence is guaranteed under international law, including the Hague Regulations and the Fourth Geneva Convention. These laws required that protected persons in occupied territories be treated humanely and safeguarded against threats and violence.

Reports from the United Nations showed that settlers often attacked Palestinians, and Israeli authorities frequently failed to prevent or punish these acts. For example, the Secretary-General’s reports documented frequent and severe attacks by settlers, and the Independent International Commission of Inquiry noted that Israel often did not intervene effectively. In some cases, settlers had attacked Palestinian communities while Israeli security forces either did nothing or even supported the attackers. Israelis who harmed Palestinians were also less likely to face legal consequences compared to cases involving non-Palestinians.

Additionally, evidence suggested that Israeli security forces sometimes used excessive or unnecessary force against Palestinians, especially after settler attacks or during protests against settlement expansion. Reports showed that these forces often employed military tactics in law enforcement situations, leading to a high number of casualties. The Secretary-General’s 2023 report highlighted that more Palestinians were killed in 2022 than in any year since 2005.

Palestinian women and girls also faced gender-based violence, including physical and sexual abuse by Israeli security forces and settlers.

The Court concluded that the violence by settlers, the failure of Israel to effectively address it, and the excessive force used by Israeli security forces contributed to a harsh environment for Palestinians. This systematic failure to protect Palestinians and the use of excessive force were inconsistent with Israel’s international obligations.

CONCLUSION ON ISRAEL’S SETTLEMENT POLICY

The Court confirmed that Israeli settlements in the West Bank and East Jerusalem, along with the systems supporting them, violated international law. This conclusion had been consistently upheld by previous rulings, including the Court's Advisory Opinion on the construction of a wall in Palestinian territories.

The Court was deeply concerned about the recent expansion of Israel's settlement policy. In December 2022, Israel’s parliament had approved the creation of a new ministerial position within the Ministry of Defence. This role granted additional powers over land, planning, and demolition in the West Bank, which was expected to accelerate the approval process for new settlements. Between November 2022 and October 2023, the size of existing settlements had increased significantly. During this period, around 24,300 new housing units were added in the West Bank settlements, including about 9,670 units in East Jerusalem.

THE QUESTION OF ANNEXATION OF THE OCCUPIED PALESTINIAN TERRITORY

The Court examined whether Israel’s actions in the Occupied Palestinian Territory amounted to annexation. To address this, the Court first defined “annexation,” then analyzed Israel’s policies and practices to determine if they conformed to this definition, and finally assessed the legality of these actions.

Understanding Annexation

In this context, “annexation” referred to the forcible integration of the occupied territory into the occupying power's own country, with an intent to permanently control the area. Under international law, occupation is meant to be temporary, and the occupying power must preserve the existing conditions prior to the occupation. Thus, if an occupying power demonstrates an intention to establish permanent control over the territory, it could be classified as annexation.

Annexation can be "de jure" or "de facto." "De jure" annexation occurs when the occupying power formally declares sovereignty over the territory. "De facto" annexation involves actions that result in effective control over the territory without a formal declaration. Both forms aim to establish permanent control.

Israel’s Actions and Annexation

Many argued that Israel’s policies and practices constituted de facto annexation of parts of the Occupied Palestinian Territory. Concerns centered around ongoing settlement construction, the construction of the wall in the West Bank, and related infrastructure. Some interpretations of statements by Israeli officials suggested an intent to permanently control the territory, effectively treating the occupation as permanent.

The Court scrutinized Israel’s actions in East Jerusalem, where Israeli domestic laws had been applied since 1967. In 1980, Israel declared East Jerusalem as part of its capital, and the 2018 Basic Law confirmed this declaration. Reports indicated that a significant portion of East Jerusalem had been appropriated for Israeli settlements, leaving limited space for Palestinian development. Measures such as the building permit scheme and land registration further pressured Palestinians to relocate.

In the West Bank, the 2018 Basic Law promoted the development of Jewish settlements. Large areas of land were designated for Israeli settlements, while Palestinian construction faced severe restrictions. The rapid expansion of Israeli settlements and the increasing settler population, which grew faster than both Israeli and Palestinian populations, highlighted this trend.

The Court noted that Israel’s policies in the West Bank and East Jerusalem appeared to integrate these areas into Israel, displacing Palestinians and extending Israeli control. The construction of the wall, infrastructure integration, and other measures contributed to a situation that could be perceived as permanent, raising concerns about de facto annexation.

Overall, the Court concluded that Israel’s policies, including settlement expansion, infrastructure development, and the application of Israeli law to the occupied territories, indicated a long-term intention to control and integrate these areas. Consequently, these actions amounted to the annexation of significant parts of the Occupied Palestinian Territory.

THE PROHIBITION OF ACQUIRING TERRITORY BY FORCE

No Territory Acquisition by Force

It was widely argued that a country could not legally claim or take control of land through force. Simply occupying a territory did not confer ownership of that land upon the occupying power. The rightful ownership of the land remained unchanged.

International Law Against Annexation

According to the United Nations Charter, countries are prohibited from using force to acquire or control another country's land. This principle was also highlighted in the Declaration on Principles of International Law from 1970, which declared that any land acquired through force was not legally recognized. The International Court of Justice affirmed that this rule constituted a fundamental aspect of international law.

Security Council Resolutions

The UN Security Council had consistently emphasized that acquiring land by force was impermissible. For instance, in 1967 and 1968, the Council declared that Israel’s actions in Jerusalem, including land expropriation, were invalid. More recent resolutions, such as one from 2016, confirmed that Israeli settlements in occupied Palestinian territories, including East Jerusalem, were illegal and impeded peace efforts.

General Assembly Resolutions

The UN General Assembly had also reinforced this principle. In 2022, it asserted that occupation should be temporary and that any annexation of Palestinian land, including East Jerusalem, was illegal under international law. Such actions undermined the peace process and the two-State solution.

Historical Claims and Legal Restrictions

While some argued that Israel’s historical ties to the land should be taken into account, the Court’s focus was on whether actions were legal under contemporary international law. The principle against acquiring land by force meant that historical claims could not justify the use of force to assert sovereignty.

Court’s Findings

The Court determined that Israel’s actions in the Occupied Palestinian Territory amounted to annexation. Attempting to claim sovereignty over this land through forceful policies and practices was deemed inconsistent with international law. The Court further examined how these actions affected the legality of Israel's presence in these territories.

THE QUESTION OF DISCRIMINATORY LEGISLATION AND MEASURES

1. Scope of the Question

The General Assembly had tasked the Court with assessing whether Israel’s laws and actions were discriminatory. The Court was required to determine if these laws and actions were unfair. However, the General Assembly’s question was limited to specific issues rather than addressing all human rights violations in the Occupied Palestinian Territory.

The Court focused on Israeli laws and actions related to particular policies and practices previously discussed. It restricted its review to laws and actions within the Occupied Palestinian Territory, excluding those in Israel or elsewhere. The Court aimed to ascertain whether these laws and actions resulted in unfair treatment, without reviewing every single law or action since 1967, but rather investigating systemic discriminatory practices.

2. The Concept of Discrimination

Discrimination was a central concern in human rights. The United Nations sought to promote respect for human rights and freedoms without discrimination based on race, gender, language, or religion. The Universal Declaration of Human Rights stated that everyone was entitled to rights and freedoms without any form of discrimination.

International humanitarian law also prohibited discrimination, particularly in armed conflicts. Various human rights agreements, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), underscored that rights should be guaranteed without discrimination.

For instance, the Convention on the Elimination of Racial Discrimination (CERD) defined racial discrimination as unfair treatment based on race, color, or national origin that undermined the recognition or enjoyment of human rights.

The Court initially examined whether Israeli laws and actions created unfair differences between Palestinians and other groups based on race, religion, or ethnicity. Upon finding discrimination, it assessed whether these differences were justified and served a legitimate purpose.

3. Residence Permit Policy

The Court evaluated Israel’s residence permit policy in East Jerusalem and its impact on Palestinians. Israel had applied its domestic laws to East Jerusalem, distinguishing between Israeli citizens, non-Israeli Jews, and other residents. Palestinians required a residence permit to stay in East Jerusalem, and since 1995, they had to prove their "center of life" was in the city to retain their permit.

Since 2008, the Israeli government had possessed the authority to revoke these permits, leading to many Palestinians losing their permits over the years. This policy faced criticism for being discriminatory.

The Court determined that this policy adversely affected Palestinians' rights to reside in East Jerusalem. It hindered family reunification and disproportionately impacted Palestinian women. The Court found no legitimate public goal justifying this differential treatment, particularly in light of Israel’s annexation of East Jerusalem, which was deemed unlawful. Consequently, the Court concluded that Israel’s residence permit policy constituted prohibited discrimination.

RESTRICTIONS ON MOVEMENT

The Court examined how Israel restricted the movement of Palestinians in the Occupied Palestinian Territory. Nearly all of Area C, a significant part of the West Bank, was used for Israeli settlements or designated as military zones or nature reserves. While Israelis and those with permits could access these areas, Palestinians required special permits to enter.

Israel has built an extensive road network in Area C, which connects Israeli settlements and Israel itself. However, Palestinians face restrictions on using many of these roads. The UN reports that 29 roads in the West Bank, totaling around 58 kilometers, have restricted access for Palestinians. Restrictions also come from various checkpoints, walls, and administrative hurdles. In early 2023, there were 565 movement obstacles in the West Bank, including checkpoints and roadblocks. Palestinians often need individual travel permits to use certain roads, which are not required for settlers. Additionally, not all permit application procedures are available in Arabic, making it harder for Palestinians to navigate the system.

The wall Israel began building in the West Bank in 2002 has further restricted Palestinian movement. Palestinians living between the completed sections of the wall and the Green Line must obtain special permits or arrangements from Israel to move about. Restrictions also affect travel between Gaza, the West Bank, and East Jerusalem, impacting access to religious sites, particularly during holy days. The UN and other bodies have noted that these restrictions hinder Palestinians' ability to worship and enjoy freedom of religion equally.

Israeli security forces have also been reported to destroy roads and infrastructure used by Palestinians, worsening movement restrictions. Such actions have led to claims of discrimination, as these measures often disproportionately affect Palestinians compared to settlers.

DEMOLITION OF PROPERTY

The Court also looked into Israel's practice of demolishing Palestinian properties in the West Bank and East Jerusalem. Since 2009, nearly 11,000 Palestinian structures had been demolished, including homes, agricultural buildings, and infrastructure related to water and sanitation. The two main reasons for these demolitions were cited as punishment for alleged crimes and the lack of building permits.

Punitive Demolitions: Israeli authorities can order the demolition of properties linked to individuals accused of certain offenses. This measure has been used extensively, with over 2,000 Palestinian properties demolished since the start of the occupation. The legal basis for these demolitions is debated, but they have never been used against properties linked to Israeli civilians accused of similar offenses. This practice is viewed as discriminatory, as it punishes people who are not personally responsible for the alleged crimes.

Demolitions for Lack of Building Permit: Many Palestinians face challenges in obtaining building permits due to restrictive planning policies. Less than 1% of Area C and 13% of East Jerusalem are designated for Palestinian infrastructure. Many permit applications from Palestinians are rejected, leading to unlicensed construction. Structures built without permits are often demolished, which can result in evictions. Recent legal changes have expedited demolition processes and restricted appeals. This has led to a significant number of demolitions, including essential infrastructure and educational facilities. In contrast, settler constructions often avoid demolition despite lacking permits.

CONCLUSION ON DISCRIMINATORY PRACTICES

The Court concluded that Israel’s policies and measures in the Occupied Palestinian Territory involved systematic discrimination against Palestinians. These policies could not be justified by reasonable or legitimate aims and were deemed discriminatory under various international laws. Some argued that these practices amounted to segregation or apartheid, which are severe forms of racial discrimination.

Israel's policies contributed to both physical and legal separation between Palestinian communities and Israeli settlers. This separation was evident through settlement policies and restricted access, as well as through distinct legal systems for settlers and Palestinians. The Court found that these policies breached international agreements against racial segregation and apartheid.

THE QUESTION OF SELF-DETERMINATION

The Court found that Israel’s settlement policies, annexations, and discriminatory measures violated international law. It then examined how these actions affected the Palestinian people’s right to self-determination. The Court had already affirmed that Palestinians possess this right. Its next steps involved defining what this right entails and assessing the impact of Israel’s actions on it.

The United Nations Charter aimed to foster friendly relations based on equal rights and self-determination (Article 1, paragraph 2). The General Assembly recognized the right to self-determination as a fundamental principle of international law, particularly relevant in the context of decolonization, applying to all peoples and territories that had not yet achieved independence.

The Court acknowledged the right to self-determination as a core principle of international law, essential for protecting human rights and considered a fundamental human right. This right is particularly important in decolonization and is seen as inalienable, not replaceable by any other principle.

This right is enshrined in key international treaties, such as the ICESCR and the ICCPR, allowing peoples to freely choose their political status and pursue their own development. The Human Rights Committee emphasized that realizing this right is crucial for ensuring and promoting individual human rights.

The scope of the right to self-determination is broad. The Court was tasked with determining whether Israel’s policies in the Occupied Palestinian Territory hindered the Palestinians’ ability to exercise this right.

Many argued that Israel’s occupation of Palestinian territories violated Palestinians’ right to self-determination. Concerns included settlement expansion, land confiscation, demographic changes, territorial fragmentation, and resource appropriation. Some contended that the right to self-determination should not affect existing borders and should consider Israel’s security needs.

The Court identified several key elements:

• The right to territorial integrity, linked to self-determination, is recognized in international law. The General Assembly and Human Rights Council had called for preserving the territorial unity of the Occupied Palestinian Territory, including East Jerusalem. Israel, as the occupying power, was obligated not to prevent Palestinians from exercising their right to an independent state over the entire occupied territory.
• Israel’s settlement policy had fragmented the West Bank and separated East Jerusalem from it. The expansion of settlements and road networks had limited Palestinian access and enclosed them in isolated areas. This policy undermined Palestinians’ right to self-determination by disrupting the territorial integrity of their land.
• The right to self-determination also protected a people from actions that dispersed or undermined their identity. The Court had previously found that Israel’s construction of the wall and other measures had forced Palestinians out of certain areas, affecting the demographic balance and impeding their right to self-determination. Restrictions on movement further divided Palestinians and weakened their unity.
• Another aspect of self-determination was the right to control natural resources. The Court found that Israel exploited resources in the Occupied Palestinian Territory for its own benefit, violating Palestinians' rights to these resources and hindering their self-determination.
• Self-determination included the right to decide political status and pursue economic, social, and cultural development. Israel’s policies, such as restrictions on movement and dependence on Israeli services, impaired these aspects of Palestinian life. The Economic and Social Commission for Western Asia noted that Israeli actions had severely impacted Palestinians, causing economic and social harm and forcing them to rely on foreign aid.

The violation of Palestinians' rights affected not only individuals but the whole community. Restrictions and policies prevented economic and social development and worsened living conditions, hampering their ability to exercise self-determination.

Israel’s long-term unlawful policies further violated Palestinians' right to self-determination. These policies had deprived Palestinians of their rights for decades and continued to undermine their ability to exercise this right in the future. The Court concluded that Israel's actions breached its obligation to respect the Palestinian people’s right to self-determination.

EFFECTS OF ISRAEL’S POLICIES AND PRACTICES ON THE LEGAL STATUS OF THE OCCUPATION

The Court examined how Israel’s policies and actions affected the legal status of its occupation of Palestinian territories, basing its analysis on international law principles and rules.

The Court had previously demonstrated that Israel’s policies, such as settlement expansion, were inconsistent with the laws governing occupations. These actions led to lasting changes on the ground, impacting the legal status of the occupation and the legality of Israel's continued presence in these areas.

Both the Security Council and the General Assembly had expressed concerns regarding Israel’s efforts to alter the legal status, geography, and demographics of the occupied territories.

For instance, Security Council resolutions had condemned Israel’s actions. Resolution 252 (1968) declared that any measures by Israel to change the status of Jerusalem were invalid. Resolution 446 (1979) called for Israel to halt actions that altered the territories' legal status or demographics, including settlement expansions. Resolution 465 (1980) asserted that Israel’s actions in these territories were illegal and obstructed peace efforts.

Similarly, the General Assembly had voiced concerns over Israel’s actions in the occupied territories. Resolution 32/5 (1977) expressed alarm about measures changing the legal status and demographics of the territories. In 2015, resolution 70/15 urged Israel to adhere to international law and cease actions that altered the territory's status, including land confiscation and annexation.

More recently, resolution 77/247 (2022) called on Israel to end settlement activities and other measures that changed the character of the occupied territories, including East Jerusalem. It highlighted the negative impact on Palestinian rights and peace prospects.

The Court understood that the first part of the General Assembly's question did not pertain to whether Israel’s policies affected the legal status of the occupation, but rather how these policies influenced the legality of Israel’s continued presence in the occupied territories. This was assessed under general international law and the UN Charter.

The Court noted that international law differentiates between rules on the use of force (jus ad bellum) and rules for the conduct of the occupying power (jus in bello) and human rights law. The former addressed the legality of the occupation, while the latter continued to apply regardless of the occupation's legality. For its response to the first part of the question, the Court focused on rules related to the use of force and the right to self-determination.

HOW ISRAELI POLICIES AFFECT THE LEGAL STATUS OF THE OCCUPATION

The Court found that Israeli policies and actions had a significant impact on the legal status of its occupation. Israel’s expansion of settlements, annexation of parts of the occupied territory, and application of Israeli laws in these areas resulted in notable changes to the physical, legal, and demographic characteristics of the Occupied Palestinian Territory. These measures suggested an intention by Israel to establish a permanent presence in the West Bank and East Jerusalem.

Occupation involves using force in foreign territory, but international law imposes limits on this use of force. According to international law and the UN Charter, force cannot be employed to acquire or claim new territory. Occupation does not confer any rights to the occupying power over the territory it occupies.

Israel’s attempts to assert control and annex parts of the occupied territory violated this principle. Such actions affected the legality of Israel's continued presence in these areas. Israel could not claim sovereignty or exercise control over the territories merely by virtue of occupying them. Security concerns did not justify the illegal acquisition of territory.

The right to self-determination is a fundamental principle enshrined in the UN Charter and international law. States must avoid actions that deny peoples their right to self-determination.

The Court observed that Israel's policies obstructed the Palestinian people’s right to self-determination. This included the annexation of parts of the territory, fragmentation of the land, and restriction of access to natural resources. These actions impeded the Palestinians' ability to achieve economic, social, and cultural development.

These policies and actions led to a prolonged denial of the Palestinian people’s right to self-determination, which is a fundamental right. This situation impacted the legality of Israel’s occupation. The Court concluded that occupation could not be used to indefinitely prevent a population from exercising its rights while integrating parts of their land into the territory of the occupying power. The right to self-determination needed to be fully respected without conditions imposed by the occupying power. Given these findings, the Court proceeded to assess the legality of Israel’s continued presence in the Occupied Palestinian Territory.

LEGALITY OF ISRAEL'S CONTINUED PRESENCE IN THE OCCUPIED PALESTINIAN TERRITORY

The Court had considered the legality of Israel's continued presence in the Occupied Palestinian Territory. Some argued that Israel’s occupation was illegal because its actions had led to permanent changes in the territory and its population. These permanent changes were seen as rendering Israel’s ongoing presence in the Occupied Palestinian Territory unlawful.

Participants compared this situation to a past case involving South Africa’s presence in Namibia, suggesting that if South Africa’s occupation was deemed illegal due to similar international law violations, then Israel’s occupation could be regarded as illegal for analogous reasons.

The Court agreed that Israel’s violations of international law, including the prohibition against acquiring territory by force and the denial of the Palestinian people’s right to self-determination, impacted the legality of Israel’s presence in the occupied territories. Israel’s ongoing annexation and control of these areas, along with its obstruction of Palestinian rights, contravened fundamental international laws and rendered its presence unlawful.

This illegality applied to all of the Palestinian territory occupied by Israel since 1967. Israel’s actions had divided and obstructed the Palestinian people’s ability to exercise their rights, and it had extended Israeli sovereignty over significant parts of the territory, contrary to international law. The entire Occupied Palestinian Territory needed to remain intact for the Palestinian people to exercise their right to self-determination.

Some argued that agreements between Israel and Palestine, such as the Oslo Accords, acknowledged Israel’s right to remain in the Occupied Palestinian Territory for security reasons. However, the Court noted that these agreements did not permit Israel to annex parts of the territory or to maintain a permanent presence there for security purposes.

The Court emphasized that despite the illegality of Israel’s continued presence, Israel still had legal responsibilities under international law. These included obligations towards the Palestinian people and other states. Israel was required to fulfill these responsibilities while remaining in control of the territory, irrespective of the legal status of its presence.

LEGAL CONSEQUENCES OF ISRAEL’S ACTIONS AND ITS CONTINUED PRESENCE IN THE OCCUPIED PALESTINIAN TERRITORY

The Court had found that Israel’s actions and policies violated international law. By maintaining these actions, Israel continued to breach the law, rendering it internationally responsible for these violations.

The Court had also determined that Israel’s ongoing presence in the Occupied Palestinian Territory was illegal. It proceeded to discuss the legal consequences of Israel’s actions and its illegal presence, addressing not only the implications for Israel but also the ramifications for other countries and the United Nations.

A. Legal Consequences for Israel

Since Israel’s presence in the Occupied Palestinian Territory is illegal, it is considered a wrongful act. This act is ongoing due to Israel’s policies that violate international laws, such as the prohibition on acquiring territory by force and denying Palestinians their right to self-determination. Israel must end its presence in the occupied territory as soon as possible. This obligation is supported by international law, which requires states to stop unlawful actions.

Israel must also stop all illegal activities related to its occupation. This means halting any new settlement construction, canceling laws that support the occupation, and ending measures that change the demographics of the territory.

Israel must also compensate for the harm caused by its illegal actions. This includes restoring property and cultural assets taken since 1967, removing settlers from occupied areas, dismantling parts of the wall built in the territory, and allowing displaced Palestinians to return to their homes.

If returning property or dismantling settlements is impossible, Israel must provide financial compensation to those affected by its wrongful acts.

Even though Israel is required to address these issues, it must continue to respect international laws, including the right of Palestinians to self-determination and obligations under humanitarian and human rights law.

B. Legal Consequences for Other States

Other countries are also affected by Israel’s wrongful actions. According to international law, all states have a legal interest in upholding principles such as the right to self-determination and prohibitions against acquiring territory by force. States must cooperate with the United Nations to end Israel’s illegal presence and support Palestinian self-determination.

The United Nations has called for states not to recognize changes to the borders occupied by Israel since 1967, including East Jerusalem, unless agreed upon through negotiations. States should not assist or support illegal settlements or actions that reinforce Israel’s unlawful presence.

Additionally, states should ensure they do not enter into agreements or trade that support Israel’s illegal occupation or affect the Palestinian territories unlawfully.

All states are required to ensure that Israel’s illegal presence does not hinder the Palestinian people’s right to self-determination and to respect the obligations of international law, including those under the Fourth Geneva Convention.

C. Legal Consequences for the United Nations

International organizations, including the United Nations, must also adhere to the duty of non-recognition of Israel’s illegal actions. They should not support or cooperate with measures that exploit occupied territories or alter their demographic or geographic character.

The United Nations, particularly the General Assembly and Security Council, must take action to end Israel’s illegal presence and ensure the realization of Palestinian self-determination. They need to consider what steps are needed to address the situation based on the Court’s opinion.

The Court stresses the importance of the United Nations working urgently to resolve the Israeli-Palestinian conflict, aiming for a just and lasting peace in the region.

The realization of Palestinian self-determination and the establishment of secure and recognized borders for both Israel and a future Palestinian state would enhance regional stability and security.

The Court’s conclusions are based on a comprehensive analysis of the legal issues involved, reflecting the complex nature of the situation and the various aspects considered.

FINAL JUDGEMENT

The Court has determined that it has the authority to issue the requested advisory opinion and has decided, with a strong majority, to proceed with it. The Court found that Israel’s ongoing presence in the Occupied Palestinian Territory is illegal and must end as soon as possible. Israel is also required to stop all new settlement activities and remove existing settlers from the territory. Additionally, Israel must compensate for the damages caused. All countries and international organizations, including the United Nations, must not support or recognize the illegal situation created by Israel's presence. The Court recommended that the United Nations, especially the General Assembly and the Security Council, take appropriate actions to swiftly address and end Israel’s unlawful presence.

Present: President SALAM; Vice-President SEBUTINDE; Judges TOMKA, ABRAHAM, YUSUF, XUE, BHANDARI, IWASAWA, NOLTE, CHARLESWORTH, BRANT, GÓMEZ ROBLEDO, CLEVELAND, AURESCU, TLADI; Registrar GAUTIER.

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DISCLAIMER: This Article is a brief synopsis of the Advisory Opinion (based on the original text) delivered by the International Court of Justice (ICJ). It is intended for informational purposes only and does not constitute an official legal interpretation of the judgment. While every effort has been made to ensure the accuracy and completeness of the information contained herein, there may be inadvertent errors or omissions. Any reliance on the information provided in this Article is strictly at the user's own risk. The author does not accept any responsibility or liability for any loss, damage, or inconvenience caused as a result of reliance on this Article.