In a scathing Advisory Opinion sure to tighten the legal screws on Israel and place its Western allies in a huge bind, the world’s supreme judicial body declared today that Israel’s 57-year occupation and settlement of the West Bank and East Jerusalem are unlawful, that both must end, that settlements must be evacuated, and that Palestinians — denied their inalienable right to self-determination – must be compensated for their losses and allowed to return to their lands.
“The sustained abuse by Israel of its position as an occupying Power, through annexation and an assertion of permanent control over the Occupied Palestinian Territory 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 Occupied Palestinian Territory unlawful,” Lebanese court President Nawaf Salam told the packed court chambers at the Peace Palace in The Hague.
And, Judge Nawaf said, reading from the ICJ’s 83-page Advisory Opinion, the international community is obliged not to recognize as legal the internationally wrongful acts Israel has carried out in the course of its prolonged occupation, nor render aid and assistance in furthering them.
All nine clauses of the Advisory Opinion’s operative statement were passed by an overwhelming majority of the court’s 15 justices.
In contrast to the ICJ’s January 26 provisional measures order against Israel, issued in response to South Africa’s application under the Genocide Convention, Advisory Opinions from the UN’s supreme judicial body are not binding.
They are the most authoritative expressions of international law, however, and carry enormous political weight.
In declaring Israel’s occupation of the Palestinian territories unlawful, the court moves far beyond its 2004 ruling on Israel’s Separation Wall. That opinion simply declared the barrier illegal, and an impediment to the Palestinian people’s right to self-determination. Israel ignored it and its Western allies have refrained from enforcing it.
In today’s Advisory Opinion, the court re-enunciated the illegality of Israel’s settlement enterprise under the Fourth Geneva Convention, and confirmed the applicability of Geneva IV, the two Covenants on Civil, Political, Economic, Social and Cultural Rights, and the Convention on the Elimination of Racial Discrimination (CERD) outside Israel’s internationally recognized territory (Israel denies they apply).
Sidestepping the legal consequences of Israel’s assault on Gaza (deemed plausibly genocidal in its entirely different provisional measures orders against Israel), the court confirmed that Gaza’s status as an integral part of the occupied territories — and Israel’s status as occupying power — preceded the events of October 7.
UN General Assembly request
Today’s ruling is the court’s response to a request for an Advisory Opinion on the ‘Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem’, and on how those policies and practices affect the “legal status” of Israel’s occupation, referred to it late last year by the UN General Assembly, in a resolution Israel and its Western allies moved heaven and Earth to stave off.
In his letter to the ICJ informing it of the Advisory Opinion request, UN Secretary General Antonio Guterres asked the ICJ to address “the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967 … and from its adoption of related discriminatory legislation and measures.”
Reference to “discriminatory legislation and measures” in the General Assembly’s Advisory Opinion request opened the door for the court to opine on the question of Israeli apartheid.
Reference to “discriminatory legislation and measures” in the General Assembly’s Advisory Opinion request opened the door for the court to opine on the question of Israeli apartheid.
And it did, crucially citing Article 3 of the 1965 Convention on the Elimination of Racial Discrimination and Apartheid (CERD), in which apartheid is specifically prohibited – the first such prohibition, predating the 1976 Apartheid Convention.
“The Court observes that Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities,” today’s Advisory Opinion says. “For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD.”
“I think the finding of a breach of Article 3 is hugely significant,” Irish legal scholar David Keane told Mondoweiss following the ruling.
Still, Keane points out, a breach of Article 3 could refer to racial segregation or apartheid, or both. Several judges brought up the Article 3 breach in individual declarations, without specifying apartheid.
South African Judge Dire Tladi did.
“I interpret this finding to be an acceptance that the policies and practices of Israel constitute a breach of the prohibition of apartheid,” Judge Tladi wrote.
“I can understand that there is a reluctance to describe the policies of Israel in the OPT as apartheid. I suspect the main reason for this hesitation is that, to date, only the policies of the pre-1994 South African government in South Africa and elsewhere in Southern Africa have been described as apartheid … [It] is hard not to see that Israeli policies, legislation and practices involve widespread discrimination against Palestinians in nearly all aspects of life much like the case in apartheid South Africa.”
The court’s ruling on CERD Article 3, albeit nuanced, comes at an opportune moment. For the past six years, the CERD committee has been addressing an ‘Inter-State Complaint’ lodged by Palestine against Israel, claiming Israel to be in breach of Article 3. The complaint has been idling in ‘conciliation’ mode for over a year. Israel has refused to participate. Today’s court reference to an Article 3 breach promises to accelerate CERD.
“The Advisory Opinion does provide CERD with a platform to make an individuated decision on the issue of apartheid,” David Keane told Mondoweiss.”
Swift ICJ response
Given the complexity of the questions put to it by the UN General Assembly, the ICJ has responded quickly.
In early January, UN Secretary General Guterres handed over 15,000 pages of UN reports and resolutions to the court, documenting the full spectrum of Israeli practices over 57 years of Israeli military occupation.
Five days of public hearings were held in mid-February.
Israel’s breaches of international law are extensive and egregious, the UN top court was told, in oral pleadings and written statements filed by 57 UN member states and three organizations – the League of Arab States, the Organization of Islamic Cooperation and the African Union — the largest number ever to argue a case before the ICJ.
The core question put to the court: Has Israel’s presence in the OPT crossed the line between lawful occupation, as defined and regulated under the 1907 Hague and 1949 Geneva Conventions, and the “inadmissible acquisition of territory by war” – i.e. annexation?
Yes, an increasing number of legal authorities have stated in recent years.
In a Fall 2017 report to the UN Human Rights Council, then Special Rapporteur Michael Lynk put forward a four-part test for the legality of an occupation. Israel failed, Lynk declared: a) by annexing portions of the territory it occupied in June 1967 (East Jerusalem and the Golan Heights); b) by failing to return the territory to sovereign Palestinian rule in a reasonable amount of time; c) by failing to act in the best interests of the Palestinian people (referred to under the Fourth Geneva Convention as a ‘protected people’; and by failing to act in good faith, “in full compliance with its duties and obligations under international law,” and as a UN member state.
And, Lynk and others argued before the ICJ this past February, the ICJ has established a precedent on this matter.
In its 1971 opinion on the Continued Presence of South Africa in Namibia (South West Africa), the court ruled that South Africa had “abused the terms of its trusteeship,” that its occupation was therefore “illegal,” and that the Apartheid regime was obliged to “withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory.”
Having failed to stave off an Advisory Opinion resolution at the UN, Israel’s allies had urged the court to decline to render one, even if the request was admissible and within the court’s jurisdiction; doing so would muck up the ‘peace process’, a bilateral dispute best resolved by the parties themselves; if it did render an opinion, to frame its opinion in the most narrow way possible, distancing itself from complex root causes, going back a century, based on over 15,000 pages of documents provided to it by the General Assembly that the court hasn’t the capacity to assess.
The Court dismissed these arguments in today’s ruling.
While continuing to seek a just and peaceful resolution to the so-called ‘conflict, the ICJ ruled today, the international community must hold Israel accountable for its wrongful acts.
The “precise modalities to bring to an end Israel’s unlawful presence in the Occupied Palestinian Territory is a matter to be dealt with by the General Assembly, which requested this opinion, as well as the Security Council,” today’s Advisory Opinion states. “[It] is for the General Assembly and the Security Council to consider what further action is required to put an end to the illegal presence of Israel, taking into account the present Advisory Opinion.”
However, today’s Advisory Opinion emphasizes, “all States are under an obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory. They are also under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory. It is for all States, while respecting the Charter of the United Nations and international law, to ensure that any impediment resulting from the illegal presence of Israel in the Occupied Palestinian Territory to the exercise of the Palestinian people of its right to self-determination is brought to an end.”
Historic ruling
“I think it’s a really historic ruling,” says Julia Pinzauti, a legal scholar at Leiden University, who teaches a course about the ICJ. “And,” Pinzauti told Mondoweiss, “given how blatantly illegal Israeli practices are, I think the ICJ couldn’t have reached any other conclusion.”
“The word ‘illegal’ will be in front of ‘occupation’ from now on,” says Lynk. Israel’s war on Gaza has deepened Israel’s isolation, says Lynk. “A ruling of this sort coming from the International Court of Justice will, I think, only accelerate that kind of isolation.”
“[It’s] the culmination of years and years of work, especially by Palestinian human rights organizations,” Pinzauti says. “Ultimately, whether these rulings will make a difference or not in terms of ending an illegal occupation and saving lives and ending apartheid and discriminatory practices and measures that impede the Palestinian people’s right to self-determination, it really depends on third states and international organizations.”
“This will now be a centerpiece of virtually every General Assembly and Human Rights Council resolution from now on,” former UN Special Rapporteur Michael Lynk told Mondoweiss, in anticipation of the ruling, a few days prior.
“The word ‘illegal’ will be in front of ‘occupation’ from now on,” says Lynk. Israel’s war on Gaza has deepened Israel’s isolation, says Lynk. “A ruling of this sort coming from the International Court of Justice will, I think, only accelerate that kind of isolation.”
David Kattenburg
David Kattenburg is a university science instructor and radio/web journalist based in Breda, North Brabant, the Netherlands.