Thematic organisation of the International Court of Justice Advisory Opinion of 19 July 2024
Prepared by: Alex Murphy, N.Chowdhury, Aya Wazaz, Conall Mathur-Dix, and Anisha Patel
Law for Palestine
This database provides an overview of the major themes covered in the International Court of Justice (ICJ) Advisory Opinion of 19 July 2024 on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. In addition to the Advisory Opinion, the compendium includes declarations, joint declarations, separate opinions, and the dissenting opinion by judges of the ICJ, sorted by thematic area, paragraph number, and relevant text. The document serves to elucidate the range of judicial opinions on the key legal questions raised in this Advisory Opinion, inter alia, annexation, settlements, self determination, apartheid and on the substantive duties and consequences for Israel, the UN, and Third States that are entailed by the Court’s landmark declaration that Israel’s occupation of the Palestinian territory is unlawful.
The aim of this document is to serve as a point of reference for any and all seeking to build on the historic Advisory Opinion of the Court (critical as it is in establishing not merely particularities of conduct, but the very occupation itself as unlawful) by developing the key thematic areas outlined therein, whether in scholarly, litigatory or other contexts.
When downloaded as a Dataset, the document may be filtered by theme, or by origin of text (the Advisory Opinion itself, Separate and Joint Opinions, etc). A dropdown menu of alternative views may be accessed via “Data” and “Change View”. Additionally, direct links to these filtered views are provided below
The document is designed to be a living resource, regularly updated to reflect further categorisation of the text in the Advisory Opinion. While every effort has been made to compile a comprehensive list of thematic areas and texts, users are encouraged to refer to the official website of the International Court of Justice for a complete record.
Law for Palestine invites all interested parties to explore the legal compendium and utilise it as a valuable resource in the ongoing discourse surrounding international law and Palestine.
By Thematic Area
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The view that Israel’s establishment of settlements in the disputed territories is illegal and amounts to unlawful “annexation” rests entirely on Article 49 (6) of the Fourth Geneva Convention, which provides that “the Occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies”. The Court has no probative evidence before it that (except possibly members of the Israeli Defence Forces), any of the Israeli citizens that have moved into the disputed area since 1967 were forced or coerced to do so by the Israeli Government. It is quite possible that some of the residents in these areas have legitimate title deeds predating 1967. Labelling all settlements in East Jerusalem and the West Bank as “illegal” both misrepresents the spirit and letter of Article 49 (6) of the Fourth Geneva Convention. Moreover, such a view contradicts Article 6 of the Mandate for Palestine which encouraged Jewish settlements throughout the Mandate and is wholly inapplicable based on Israel’s claim to sovereignty pursuant to uti possidetis juris. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 89 |
Since then, Israel has entrenched its policy to expand the settlements in the West Bank, despite its commitment to refrain from such activities in the Oslo II Accord. I fully agree with the Court’s view that such settlements are illegal and are to be viewed as an effort at annexing parts of the West Bank, following the de jure annexation of East Jerusalem in 1980. DECLARATION OF JUDGE TOMKA Para. 4 |
I have doubts that the ambition of Israel to annex the West Bank, as demonstrated by its radicalized more recent settlement policy and practice, necessarily implies that it now intends to institutionalize the — until then temporary and at least partly security-oriented — legal régime for the Palestinian inhabitants of the West Bank in relation to the settlers and the settlements, and thus to make it permanent. The intention to annex a territory and the decision to institutionalize a particular racially oppressive régime do not necessarily go together. In the present case they may well go together, but it is also possible that Israel does not intend the way in which it exercises its occupation of the West Bank, as regards the relationship between the Palestinians and the settlers, to become permanent and institutionalized. I think that there is insufficient information to draw a definite conclusion. SEPARATE OPINION OF JUDGE NOLTE Para. 14 |
It is perhaps unfortunate that the General Assembly framed part of question (a) in terms of “annexation”. International law, in the form of Article 2, paragraph 4, of the UN Charter and of custom, prohibits the “acquisition of territory” through the threat or use of force. The critical question, then, is what constitutes an unlawful “acquisition” of territory that could place the conduct of an occupying Power in violation of this fundamental norm. “Annexation” in this sense can be (mis)understood as involving the assertion of formal sovereignty over a territory or the incorporation of foreign territory into a State’s own territory — neither of which is required for a violation of the prohibition of the acquisition of territory by force. The Court at times appears to equate annexation with incorporation, which could suggest an unnecessary restriction on this prohibition (see e.g. paragraph 158 of the Advisory Opinion, defining annexation as “integration into the territory of the occupying Power”; and paragraph 170, stating that “Israel has also taken steps to incorporate the West Bank into its own territory”). SEPARATE OPINION OF JUDGE CLEVELAND Para. 28 |
While many participants in these proceedings contended that at least part of the Occupied Palestinian Territory has been annexed, few addressed the meaning of this concept. Japan, however, elaborated on the forcible acquisition of territory in its submissions, stating that the principle consists of “the establishment of control over the territory through forcible measures”, coupled with “the intention to appropriate that territory permanently”1. Japan further maintained that this prohibition applies to “any unilateral attempts to change the peacefully established status of territories by force or coercion”. SEPARATE OPINION OF JUDGE CLEVELAND Para.29 |
The Court’s predominant reasoning is consistent with this approach. The Court makes clear that the essence of the prohibition of the acquisition of territory by force involves the use of force to control a foreign territory, with the intent of exercising permanent control. Thus, the Court observes that annexation “presupposes the intent of the occupying Power to exercise permanent control over the occupied territory” (Advisory Opinion, para. 158; see also paragraphs 159 and 161). It does not restrict “annexation” to the assertion of formal sovereignty or a situation of incorporation. Accordingly, the Court concludes that Israel’s policies and practices in large parts of the Occupied Palestinian Territory, notably East Jerusalem and in the West Bank, “are designed to remain in place indefinitely and to create irreversible effects on the ground” (ibid., para. 173). In other words, they are intended to be permanent. Such conduct violates the jus ad bellum prohibition of the acquisition of territory by force. SEPARATE OPINION OF JUDGE CLEVELAND Para. 30 |
…More generally, we believe that numerous aspects of Israel’s policy, especially over the past twenty years, can only be understood as aiming to gradually incorporate the majority of Area C of the West Bank into Israel’s own territory (in addition to the formal annexation of East Jerusalem in 1980). The implementation of such an objective, as the Court observed in 2004 within the narrower context of construction of the wall, “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right” (ibid., para. 122). JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 3 |
We do not question whatsoever the assertion that “[t]he annexation of occupied territory by an occupying Power is unlawful” (para. 175) and that “occupation can under no circumstances serve as the source of title to territory” (para. 253). We are of the view, and so is the majority of the Court, that Israel’s policy for quite a long time already turns its back on the principle according to which an occupying Power cannot pursue a policy aimed at extending its sovereignty over the whole or part of the territory it occupies by incorporating it, de jure or de facto, into its own territory. But we do not see how we can go from the finding that the annexation policy pursued by the occupying Power is illegal to the assertion that the occupation itself is illegal. Yet that is exactly what the Opinion does, without any explanation of even minimal legal substantiation. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 22 |
Third, given the central role that the concept of annexation plays in the Opinion’s reasoning, it is surprising and regrettable that the Court did not meaningfully clarify the terminology by distinguishing between the different terms employed […] it sometimes uses the distinction between de jure annexation and de facto annexation. In our view, this latter distinction is a source of confusion. Both types of annexation involve effective control of the territory, but they differ in the way in which the State expresses its intention to hold the territory permanently. De jure annexation entails a formal declaration of the State by which it claims permanent sovereignty over a territory it occupies. De facto annexation, by contrast, is not accompanied by an explicit declaration of sovereignty over the annexed territory, the intention to exercise permanent sovereignty being rather inferred from the situation on the ground. This means that, essentially, a de facto annexation is an implicit or informal annexation as opposed to the explicit and formal annexation that is de jure annexation. But both are intended to produce legal effects. In the present Opinion, the Court could have clarified the terminology, particularly because, without such a clarification, another term, that of “gradual” or “creeping” annexation, cannot be properly defined. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 31 |
…“Settlements” in Oslo II encompass “settlements in Area C” (Oslo II, Article XII (5)). The parties to the Oslo Accords agreed that “[n]either side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations” (Oslo II, Article XXXI (7)). We are of the view that this obligation of Israel not to alter the status of the West Bank implies that any new settlements created in Area C and beyond it (if any) after 1995 (when Oslo II was concluded) are in breach also of this Accord. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 55 |
After thoroughly analysing the situation, both factual and legal, we are convinced that the post-1995 settlements combined with other measures, such as the expulsion of the local Palestinian population or the application of Israel’s domestic legislation to the occupied territory, are indicative of the intent to annex the territory comprising these settlements of Area C, but not the West Bank as a whole. Unfortunately, the Opinion does not make such necessary distinctions JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 56 |
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United Nations reports indicate that Israel’s security forces engage in the destruction of the roads and other infrastructure used by Palestinians in the West Bank… Such activities further exacerbate the differentiation in the treatment of Palestinians with reference to their freedom of movement. ADVISORY OPINION Para. 224 |
For the reasons above, the Court concludes that a broad array of legislation adopted and measures taken by Israel in its capacity as an occupying Power treat Palestinians differently on grounds specified by international law. As the Court has noted, this differentiation of treatment cannot be justified with reference to reasonable and objective criteria nor to a legitimate public aim (see paragraphs 196, 205, 213 and 222). Accordingly, the Court is of the view that the régime of comprehensive restrictions imposed by Israel on Palestinians in the Occupied Palestinian Territory constitutes systemic discrimination based on, inter alia, race, religion or ethnic origin, in violation ADVISORY OPINION Para. 223 |
The Court observes that Israel’s policies and practices in the West Bank and East Jerusalem implement a separation between the Palestinian population and the settlers transferred by Israel to the territory. ADVISORY OPINION Para. 226 |
This separation is first and foremost physical: Israel’s settlement policy furthers the fragmentation of the West Bank and East Jerusalem, and the encirclement of Palestinian communities into enclaves. As a result of discriminatory policies and practices such as the imposition of a residence permit system and the use of distinct road networks, which the Court has discussed above, Palestinian communities remain physically isolated from each other and separated from the communities of settlers (see, for example, paragraphs 200 and 219). ADVISORY OPINION Para. 227 |
The separation between the settler and Palestinian communities is also juridical. As a result of the partial extension of Israeli law to the West Bank and East Jerusalem, settlers and Palestinians are subject to distinct legal systems in the Occupied Palestinian Territory (see paragraphs 135-137 above). To the extent that Israeli law applies to Palestinians, it imposes on them restrictions, such as the requirement for a permit to reside in East Jerusalem, from which settlers are exempt. In addition, Israel’s legislation and measures that have been applicable for decades treat Palestinians differently from settlers in a wide range of fields of individual and social activity in the West Bank and East Jerusalem (see paragraphs 192-222 above). ADVISORY OPINION Para. 228 |
While it must be recognized that the definition of apartheid in Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid (hereinafter the “Apartheid Convention”) is marked by the experience in South Africa, which is expressly mentioned, this cannot mean that for any policy to be characterized as constituting apartheid it must fully reproduce the policies and measures implemented in South Africa at that time… In order to prevent and punish what constitutes a crime under international law, whose prohibition is an undisputed jus cogens norm, a non-restrictive reading of this definition is therefore necessary DECLARATION OF PRESIDENT SALAM Para. 16 |
As noted above, Article 3 of CERD, to which Israel is a party, establishes an obligation to prevent, prohibit and eradicate any act of apartheid. Furthermore, although Israel is not a party to either the Apartheid Convention or the Rome Statute, there can be no doubt that the prohibition of apartheid is a customary norm, that is recognized as a peremptory norm from which no derogation is possible and whose violation constitutes a crime against humanity. It is to be noted that, following in the steps of the United Nations General Assembly (see resolution 2202 (XXI) of 16 December 1966), the Security Council described apartheid as “a crime against the conscience and dignity of mankind [which] is incompatible with the rights and dignity of man, the Charter of the United Nations and the Universal Declaration of Human Rights, and seriously disturbs international peace and security” (resolution 473 of 13 June 1980, para. 3). DECLARATION OF PRESIDENT SALAM Para. 17 |
…Accordingly, apartheid would be established based on the following elements: the existence of two or more distinct racial groups; the commission of inhumane acts against one or more groups; an institutionalized régime of systematic oppression and domination by one racial group over one or more other racial groups and an intention to maintain this régime. DECLARATION OF PRESIDENT SALAM Para. 20 |
Palestinians and Israeli Jews identify themselves as two distinct groups based on “subjective” elements relating to “descent, or national or ethnic origin”, including those relating to religion and culture, and should therefore be considered as two “racial groups” within the meaning of the first constitutive element of apartheid. In this respect, it should also be pointed out that Israel’s 2018 Basic Law states that “[t]he Land of Israel is the historical homeland of the Jewish People” and that the State will “strive to secure the welfare of members of the Jewish people”, thus drawing a clear distinction between Jewish and non-Jewish people. DECLARATION OF PRESIDENT SALAM Para. 22 |
It is evident from the magnitude and consistency of these violations that they are not isolated acts but are part of an institutionalized régime of systematic oppression by Israelis, over Palestinians in the occupied territory. As the Opinion demonstrates, settlers and Palestinians live in the occupied territory under a régime established by Israel which grants different rights and benefits to each of the two groups. Numerous reports from United Nations bodies have already established and decried this situation. DECLARATION OF PRESIDENT SALAM Para. 24 |
The Advisory Opinion also notes that Israel put in place two different legal systems in the Occupied Palestinian Territory, which are applied separately to each of the two groups DECLARATION OF PRESIDENT SALAM Para. 27 |
Israel’s commission of inhumane acts against the Palestinians as part of an institutionalized régime of systematic oppression and domination, and its intention to maintain that régime, are undeniably the expression of a policy that is tantamount to apartheid. DECLARATION OF PRESIDENT SALAM Para. 29 |
The Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD (at paragraph 229) while leaving open the question whether it considers Israel’s policies and practices to be a form of racial segregation or apartheid. In the absence of any discussion of the subjective element of apartheid, which is a core element of the prohibition, the Opinion cannot be understood as finding that the prohibition of apartheid has indeed been violated by Israel. Also, I am not convinced that the Court has sufficient information before it to conclude that Israel’s policies and practices amount either to apartheid or to racial segregation. SEPARATE OPINION OF JUDGE NOLTE Para. 8 |
… third, the relevant policy and practice must be motivated by a subjective element (mens rea) which not only requires the intentional commission of inhumane acts of a certain gravity, nature and scale, but also that the purpose of these acts is the establishment and maintenance of an institutionalized régime of domination and oppression (dolus specialis) SEPARATE OPINION OF JUDGE NOLTE Para. 11 |
I have serious doubts that the information before the Court is sufficient to conclude that the subjective element of apartheid is present in the situation of the Occupied Palestinian Territory. Given the exceptional gravity of a violation of the prohibition of apartheid, a peremptory rule of general international law, claims against a State involving charges of apartheid “must be proved by evidence that is fully conclusive.” The Court should only find that a State has the required dolus specialis of apartheid when the “only reasonable inference” from its conduct is an intention to maintain an institutionalized régime to systematically oppress and dominate a racial or ethnic group, in Israel’s case the Palestinians relative to Israeli Jews. This dolus specialis should only be considered as being established where other inferences are clearly implausible. SEPARATE OPINION OF JUDGE NOLTE Para. 12 |
I doubt that the only reasonable inference which can be drawn from Israel’s policies and practices in the Occupied Palestinian Territories is that of an intention to maintain an institutionalized régime to systematically oppress and dominate the Palestinians relative to Israeli Jews. SEPARATE OPINION OF JUDGE NOLTE Para. 13 |
I have doubts that the ambition of Israel to annex the West Bank, as demonstrated by its radicalized more recent settlement policy and practice, necessarily implies that it now intends to institutionalize the — until then temporary and at least partly security-oriented — legal régime for the Palestinian inhabitants of the West Bank in relation to the settlers and the settlements, and thus to make it permanent. The intention to annex a territory and the decision to institutionalize a particular racially oppressive régime do not necessarily go together. In the present case they may well go together, but it is also possible that Israel does not intend the way in which it exercises its occupation of the West Bank, as regards the relationship between the Palestinians and the settlers, to become permanent and institutionalized. I think that there is insufficient information to draw a definite conclusion. SEPARATE OPINION OF JUDGE NOLTE Para. 14 |
Thus, the law of occupation itself envisages a difference in treatment between the nationals of the occupying Power and the protected population in the occupied territory. This is not to say that Israel’s segregative practices are justified under the law of occupation. However, given the overlap between the law of occupation and CERD in the present case, a conclusion that the segregation in the present case runs along racial or ethnic lines requires a particularly thorough analysis of the facts. SEPARATE OPINION OF JUDGE NOLTE Para. 18 |
Material before the Court indicates the existence of discrimination on multiple and potentially intersecting grounds. For example, when discussing Israel’s settlement policy, the Court notes that Israel’s control of water resources in the West Bank prioritizes water supply to Israeli settlements, at the expense of Palestinian communities (Advisory Opinion, paragraphs 128-129). It does not make the additional observation, however, that water shortages in some Palestinian communities have a particular effect on Palestinian women and girls, because they have additional needs of water for hygiene and privacy. Moreover, they bear responsibility for securing water for household use. The Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel has further noted that the decline of the agricultural sector as a result of Israel’s policies has disproportionately affected employment opportunities for Palestinian women. The Commission has concluded overall that Israel’s policies and practices in the Occupied Palestinian Territory have had a pervasive discriminatory effect on Palestinian women by exacerbating their economic and social vulnerability. DECLARATION OF JUDGE CHARLESWORTH Para. 6 |
As for “apartheid”, clarifying its constituent parts is indisputably important in my view, given the seriousness of practices of apartheid, whose prohibition is established in both treaty law and customary international law, and the fact that the crime of apartheid is recognized as a crime against humanity whose prohibition is a jus cogens norm that creates rights and obligations erga omnes. DECLARATION OF JUDGE BRANT Para. 6 |
In my opinion, the Court could have used evolutive treaty interpretation to clarify the constituent elements of this crime. DECLARATION OF JUDGE BRANT Para. 7 |
Following the entry into force of CERD on 4 January 1969, two international instruments defined and established apartheid as a crime against humanity: the International Convention on the Suppression and Punishment of the Crime of Apartheid (hereinafter the “Apartheid Convention”) and the Rome Statute of the International Criminal Court (hereinafter the “Rome Statute”). Israel is not party to either of these instruments. DECLARATION OF JUDGE BRANT Para. 8 |
Nevertheless, the treaty practice of the 124 States parties to the Rome Statute and the 110 States parties to the Apartheid Convention cannot be overlooked. In my view, it clearly constitutes practice that is relevent for defining the elements of apartheid as set out in CERD. I would add that the States parties to the Apartheid Convention – which entered into force on 18 July 1976, seven years after CERD – were mindful of the pre-existing obligation prohibiting practices of racial segregation and apartheid set forth in CERD, this being expressly recalled in the preamble of the Apartheid Convention. Moreover, as regards the definition contained in the Rome Statute, although this was developed in the context of individual criminal responsibility, I see no reason to conclude that apartheid should be defined differently in relation to the international responsibility of States. DECLARATION OF JUDGE BRANT Para. 9 |
Three elements are thus present in both [The Apartheid Convention and the Rome Statute] definitions, namely: (i) the material element constituted by the commission of inhuman acts; (ii) the contextual element of an institutionalized régime of systematic oppression and domination by one racial group over another; and (iii) the intentional element constituted by the intent to maintain the aforementioned régime. DECLARATION OF JUDGE BRANT Para. 10 |
Moreover, Israel’s settlement policy seeks to fragment the Palestinian people and territory by isolating towns and villages from each other (paras. 164 and 238 of the Opinion), which some participants characterized as “strategic fragmentation”. This clearly constitutes racial segregation. The Court further observed in Part V of the Opinion that there is also juridical separation, as well as myriad breaches of the rights of Palestinians for the benefit of the Israeli settlements established in the occupied territory and the State of Israel itself. In short, the Court found that Israel has violated Article 3 of CERD, but did not consider it necessary in this instance to define the concepts of racial segregation and apartheid. DECLARATION OF JUDGE BRANT Para. 11 |
The Court was able to find a breach of Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, i.e. the prohibition of segregation and apartheid. I interpret this finding to be an acceptance that the policies and practices of Israel constitute a breach of the prohibition of apartheid, which itself is a peremptory norm of international law. 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. But recall, the term apartheid was coined by that régime not as a pejorative term, but as a positive concept to explain the benevolence of its policies as separate development, and moreover, at a time when many other States still practised racial discrimination themselves in some form or another. Once the term attained a negative meaning, and international condemnation of racism swelled, no other State would self-describe its policies as apartheid. DECLARATION OF JUDGE TLADI Para. 36 |
… Some may argue that the Israeli practices and policies do not rise to the level of apartheid because there is insufficient evidence that the third element is met, i.e. there is insufficient evidence that the enumerated inhuman acts were committed for the purposes of establishing and maintaining domination by one racial group. To this I would make only three brief points. DECLARATION OF JUDGE TLADI Para. 39 |
First, in interpreting the phrase, it is important to recall that the Apartheid Convention definition is prefaced by the statement “which shall include policies and practices of racial segregation and discrimination as practiced in southern Africa . . .”. As explained above, the policies and practices of Israel in the Occupied Palestinian Territory are, in many respects, alike to those of apartheid South Africa. The second point is that it would be incredibly rigid to insist on direct evidence of an intention to dominate. As the International Criminal Tribunal for the former Yugoslavia observed in the context of genocide, intention and purpose can be “inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group”57. I find it difficult to see how anyone can look at the policies and practices that have been detailed before the Court and find that, when taken together, the systemic character of these segregationist acts, including the explicit, legislated policy that self-determination in Palestine is reserved for Jewish persons only, do not reveal the purpose of dominating the Palestinians. As a third and final point, it should be recalled that it is not necessary for the purpose of establishing “the purpose of domination” for domination to be the sole, or even dominant reason, for the discriminatory measures. Apartheid South Africa, it will be recalled, promoted its policy not solely for the purpose of domination, but to ensure what it termed “equal but separate development”. DECLARATION OF JUDGE TLADI Para. 40 |
The extraterritorial application of Israeli domestic law to the West Bank has created two different legal systems. While settlers are subject to Israeli criminal law, Palestinians living in the West Bank are governed by military law and prosecuted in military courts. Differential treatment between Palestinians and settlers is also found in the national health insurance law, taxation law, election law, and in the enforcement of traffic laws. There exists an institutional and legislative separation in the planning and building régime as well. The dual legal system is supported by the 2018 Basic Law, which stipulates that “[t]he State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and consolidation” (para. 7). SEPARATE OPINION OF JUDGE IWASAWA Para. 10 |
The dual legal system introduced by Israel in the West Bank treats Palestinians and settlers differently based on, inter alia, race, religion, or ethnic origin, and amounts to discrimination. The United Nations High Commissioner for Human Rights has affirmed that “[t]he extraterritorial application of Israeli domestic law to settlers creates two different legal systems in the same territory, on the sole basis of nationality or origin. Such differentiated application is discriminatory”. Similarly, the Independent International Commission of Inquiry on the Occupied Palestinian Territory concluded that “[t]his dual legal system provides greater enjoyment of human rights for Israelis than for Palestinians and is therefore discriminatory”. SEPARATE OPINION OF JUDGE IWASAWA Para. 11 |
The questions of the General Assembly concern Israel’s “discriminatory legislation and measures” under international human rights law and not apartheid as an international crime. The Court explains that Article 3 of CERD refers to “two particularly severe forms of racial discrimination: racial segregation and apartheid” (Advisory Opinion, para. 225) and concludes that “Israel’s legislation and measures constitute a breach of Article 3 of CERD” (para. 229). In its reasoning, the Court emphasizes the “separation” implemented by Israel in the West Bank between the Palestinian population and settlers (paras. 226-229), without qualifying it as apartheid. SEPARATE OPINION OF JUDGE IWASAWA Para. 13 |
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With regard to the Court’s finding that Israel’s continued presence in the Occupied Palestinian Territory is illegal, the Court considers that such presence constitutes a wrongful act entailing its international responsibility. It is a wrongful act of a continuing character which has been brought about by Israel’s violations, through its policies and practices, of the prohibition on the acquisition of territory by force and the right to self-determination of the Palestinian people. Consequently, Israel has an obligation to bring an end to its presence in the Occupied Palestinian Territory as rapidly as possible… Advisory Opinion Para. 267 |
The Court further observes that, with respect to the policies and practices of Israel referred to in question (a) which were found to be unlawful, Israel has an obligation to put an end to those unlawful acts. In this respect, Israel must immediately cease all new settlement activity. Israel also has an obligation to repeal all legislation and measures creating or maintaining the unlawful situation, including those which discriminate against the Palestinian people in the Occupied Palestinian Territory, as well as all measures aimed at modifying the demographic composition of any parts of the territory. Advisory Opinion Para. 268 |
Having committed to implementing resolution 181 (II), Israel also has an ongoing obligation to co-operate with the United Nations to ensure that the State of Palestine, proclaimed in Algiers in 1988 and admitted to the United Nations as an observer State on the basis of resolution 181 (II), can exercise its full sovereignty over its territory and achieve total independence, which requires the complete withdrawal of Israel from the Occupied Palestinian territory. DECLARATION OF PRESIDENT SALAM Para. 42 |
The main consequence of the violations must be the obligation to bring them to an end. This primarily and necessarily entails the obligation for Israel to put an end to its unlawful presence in the Occupied Palestinian Territory (see paragraph 267 of the Opinion). Only the imperative withdrawal of Israel from the Occupied Palestinian Territory will enable the Palestinian people to fully exercise its right to self-determination, including its right to a fully independent, sovereign and viable State. This is therefore the main objective that the United Nations and all States must pursue. DECLARATION OF PRESIDENT SALAM Para. 56 |
Accordingly, this withdrawal cannot be conditional on the success of negotiations whose outcome will depend on Israel’s approval. In particular, Israel cannot invoke the need for a prior agreement on its security claims for such a condition may lead to perpetuating its unlawful occupation. Indeed, in accordance with the principle expressed by the maxim ex injuria jus non oritur no one may benefit from their own illegal act. Otherwise, the cessation of violations of international law, including violations of peremptory norms (jus cogens), would be subject to the veto of the perpetrator of those violations. DECLARATION OF PRESIDENT SALAM Para. 57 |
Negotiations between the parties — which remain necessary — would then focus mainly on the modalities of implementation, rather than on the question of Israel’s withdrawal, which must take place, according to the terms of the Opinion, “as rapidly as possible”. They would also focus on other matters necessary to achieve a just, comprehensive and lasting peace, such as the question of refugees, mutual security arrangements between the two States and changes that could be made by mutual agreement to the 1967 boundary lines. DECLARATION OF PRESIDENT SALAM Para. 58 |
As the Court points out in the Opinion, the ultimate realization of the right of the Palestinian people to self-determination lies in the final settlement of the conflict between the State of Palestine and the State of Israel. Before that goal is reached, in any event, Israel must immediately cease its internationally wrongful acts and observe its international obligations in the Occupied Palestinian Territory. DECLARATION OF JUDGE XUE Para. 10 |
In my view, the Court does not clearly distinguish between the nullity, which affects the act in question, depriving it of its validity in international law, and the responsibility that affects the State author of the act which is null. The act in question does not affect the legal régime of the occupation and Israel remains bound by its obligations under international law as an occupying Power. DECLARATION OF JUDGE TOMKA Para. 6 |
… Accordingly, the breaches of the prohibition of the acquisition of territory by force and the right of the Palestinian people to self-determination entail the duty to end this unlawfulness, which gives rise, inter alia, to the duty to withdraw from the Occupied Palestinian Territory under the rules of State responsibility. We therefore agree with this aspect of the Court’s conclusion. JOINT DECLARATION OF JUDGES NOLTE AND CLEVELAND Para. 15 |
The Court concludes that Israel must end its presence “as rapidly as possible”. Notably, the Court did not adopt the formulation urged by some participants that Israel must end the occupation “immediately, totally and unconditionally”. The Court’s wording recognizes that there are significant practical issues that would make an “immediate” withdrawal and cessation of some aspects of Israel’s presence not possible. Moreover, Israel’s duty to end its presence does not mean that its duty to withdraw from the Occupied Palestinian Territory must necessarily be fulfilled in the same way, or at the same time, with respect to every part of that territory. While the duty to withdraw “as rapidly as possible” applies as a general matter, this duty nevertheless may be implemented differently depending on the situation that prevails in a particular part of the occupied territory. JOINT DECLARATION OF JUDGES NOLTE AND CLEVELAND Para. 16 |
Finally, it is regrettable that the General Assembly’s request focused only on the conduct of Israel in relation to Palestine, as opposed to the legal consequences arising from the policies and practices of all relevant actors in the Israel-Palestine situation. Israel and its population have also suffered grievous harms to their rights under international law in the period covered by the request. Resolution of the Israel-Palestine situation will not be achieved until the harms committed by all relevant actors are acknowledged and addressed. JOINT DECLARATION OF JUDGES NOLTE AND CLEVELAND Para. 5 |
When an occupying Power annexes, de facto/implicitly or de jure/explicitly, the occupied territory, it results in an unlawful situation that must cease, given its continuous character, under the law of international responsibility. This means that the occupying Power must cease the annexation and nullify all its effects. It remains bound to fully comply with its obligations under the legal régime of occupation, which, legally, has not ceased to apply. Instead, the Opinion, as it erroneously defines the wrongful act not as the annexation but as the occupation itself, concludes that it is Israel’s very presence in the Occupied Palestinian Territory that must cease “as rapidly as possible” (para. 267). Based on erroneous premises, the Opinion can only reach a false conclusion, which we cannot endorse. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 30 |
Israel has an obligation to bring to an end its continued presence in the Occupied Palestinian Territory “as rapidly as possible” (Advisory Opinion, para. 267 and point (4) of the operative clause). Given its legitimate security concerns, Israel is not under an obligation to withdraw all its armed forces from the Occupied Palestinian Territory immediately and unconditionally, particularly from the Gaza Strip in view of the ongoing hostilities since 7 October 2023. The Security Council and the General Assembly have reiterated the importance of the principle of land for peace and the two-State solution. For example, Security Council resolution 242 (1967) linked the end of Israel’s illegal presence in the Occupied Palestinian Territory and the full realization of the Palestinian people’s right to self-determination with Israel’s right to live in peace within secure and recognized borders free from threats or acts of force (para. 283). The precise modalities for ending Israel’s illegal presence should follow from arrangements arrived at based on these principles under the supervision of the General Assembly and the Security Council (see para. 281 and point (9) of the operative clause). SEPARATE OPINION OF JUDGE IWASAWA Para. 20 |
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… the subject-matter of the General Assembly’s request, although it involves Israel and Palestine, concerns the responsibilities of the United Nations and wider questions of international peace and security, as well as certain obligations erga omnes of States. ADVISORY OPINION Para. 33 |
… In view of the character and importance of the obligations erga omnes involved in the illegal presence of Israel in the Occupied Palestinian Territory, the obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory and the obligation to distinguish in their dealings with Israel between the territory of Israel and the Occupied Palestinian Territory apply also to the United Nations. ADVISORY OPINION Para. 280 |
Finally, the Court is of the view that 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. Therefore, 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. ADVISORY OPINION Para. 281 |
The Court considers it important to stress as it did in its Wall Advisory Opinion,“the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli-Palestinian conflict, which continues to pose a threat to international peace and security, to a speedy conclusion, thereby establishing a just and lasting peace in the region” (I.C.J. Reports 2004 (I), . 200, para. 161). ADVISORY OPINION Para. 282 |
The fact remains, however, that the United Nations, its principal organs and its institutions must ensure that the measures they adopt are efficient and effective given that those addressed to Israel in almost all the resolutions of the General Assembly and the Security Council have remained without effect… DECLARATION OF PRESIDENT SALAM Para. 50 |
It is therefore essential that the Security Council and the General Assembly take further appropriate and concrete measures to bring to an end, without delay and within a well-defined timeframe, the violations of international law resulting from Israel’s policies and practices in the Occupied Palestinian Territory. DECLARATION OF PRESIDENT SALAM Para. 51 |
Such negotiations would be more likely to succeed if they take place under the auspices of the United Nations and on the basis of international law, whose respective impartiality and legitimacy would go some way to offsetting the great power imbalance between the occupier and the occupied DECLARATION OF PRESIDENT SALAM Para. 59 |
Finally, I fully agree that international organizations, including the United Nations, have an obligation of non-recognition and that the General Assembly and the Security Council need to consider the precise modalities and what further action is required to bring to an end as rapidly as possible the unlawful presence of Israel in the Occupied Palestinian Territory (see paragraph 285 (8) and (9)). SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 1 |
[…] For the same reasons, I also support the view that the United Nations, and especially the Security Council and General Assembly, should consider the modalities for bringing to an end as rapidly as possible the presence of the State of Israel in the Occupied Palestinian Territory. This can be done only when security is guaranteed for both States. I believe that achieving the above goal is long overdue and that all relevant actors should redouble their efforts to that effect. This remains the unfulfilled historical responsibility of the United Nations. DECLARATION OF JUDGE TOMKA Para. 8 |
… I believe this recital to be a legal consequence of the breaches in question and that the United Nations organs have a duty to “consider” what further action is required, particularly in the event that Israel does not comply with the legal consequences identified in the Opinion. The requirement for the United Nations to consider further measures follows from the Court’s emphasis on the “necessity for the United Nations . . . to redouble its efforts” in the context of the Middle East peace process63. … I understand this “should” to mean, is obliged to. DECLARATION OF JUDGE TLADI Para. 57 |
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. DECLARATION OF JUDGE TLADI Para. 60 |
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With regard to the right to self-determination, the Court considers that, while it is for the General Assembly and the Security Council to pronounce on the modalities required … [for] the full realization of the right of the Palestinian people to self-determination, all States must co-operate with the United Nations to put those modalities into effect. Advisory Opinion Para. 275 |
Taking note of the resolutions of the Security Council and General Assembly, the Court is of the view that Member States are under an obligation not to recognize any changes in the physical character or demographic composition, institutional structure or status of the territory occupied by Israel on 5 June 1967, including East Jerusalem, except as agreed by the parties through negotiations and to distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territory occupied since 1967. The Court considers that the duty of distinguishing dealings with Israel between its own territory and the Occupied Palestinian Territory encompasses, inter alia, the obligation to abstain from treaty relations with Israel in all cases in which it purports to act on behalf of the Occupied Palestinian Territory or a part thereof on matters concerning the Occupied Palestinian Territory or a part of its territory; to abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory or parts thereof which may entrench its unlawful presence in the territory; to abstain, in the establishment and maintenance of diplomatic missions in Israel, from any recognition of its illegal presence in the Occupied Palestinian Territory; and to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory (see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 55-56, paras. 122, 125-127). Advisory Opinion Para. 278 |
Moreover, the Court considers that, in view of the character and importance of the rights and obligations involved, 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. In addition, all the States parties to the Fourth Geneva Convention have the obligation, while respecting the Charter of the United Nations and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention. Advisory Opinion Para. 279 |
The Opinion rightly points out in paragraph 115 that the establishment of these settlements is a clear violation of Article 49 (6) of the Fourth Geneva Convention, which prohibits the deportation of the population of the occupied territory and the transfer by the occupying Power of its population to the occupied territory. These are therefore serious violations that the States parties to the Geneva Conventions are obliged to punish; they are also under an obligation to track down those responsible for committing or ordering the commission of such offences. The ICRC has pointed out that this obligation is also a customary one, extending to all States, which must not only investigate such grave breaches allegedly committed by their nationals or their armed forces, or on their territory, they also have the right to confer on their national courts universal jurisdiction for the punishment of such grave breaches for which no statute of limitations may apply (ICRC Study on Customary International Law, rules 156 to 158, 160 and 161). DECLARATION OF PRESIDENT SALAM Para. 12 |
These obligations are both negative and positive. The negative obligations require States to refrain from encouraging, aiding or assisting Israel in violation of the rules of international humanitarian law applicable in the Occupied Palestinian Territory. As the ICRC clarified in its 2016 commentary on the First Geneva Convention, “financial, material or other support in the knowledge that such support will be used to commit violations of humanitarian law would therefore violate common Article 1, even though it may not amount to aiding or assisting the commission of a wrongful act by the receiving States for the purposes of State responsibility”. (See ICRC Commentary, Geneva Conventions, Common Article 1, https://ihl-databases.icrc.org/fr/ihl-treaties/ gci-1949?activeTab=1949GCs-APs-and-commentaries, para. 160.) Thus, any unconditional financial, economic, military or technological assistance to Israel would constitute a breach of this obligation. DECLARATION OF PRESIDENT SALAM Para. 45 |
With respect to positive obligations, States must take proactive measures to bring violations to an end and ensure respect for the relevant conventions in the Occupied Palestinian Territory, including by using their influence over Israel (see ICRC Commentary, Geneva Conventions, Common Article 1, https://ihl-databases.icrc.org, para. 164). DECLARATION OF PRESIDENT SALAM Para. 46 |
… Indeed, as the Court has emphasized with regard to the crime of genocide, a State’s referral of a violation of obligations erga omnes to the organs of the United Nations does not relieve other States of their obligations “to take such action as they can” to ensure respect for those obligations and prevent or punish violations thereof, “while respecting the United Nations Charter and any decisions that may have been taken by its competent organs” (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 220, para. 427). DECLARATION OF PRESIDENT SALAM Para. 47 |
I also support the findings of the Court that all States are under an obligation not to recognize and not to render aid or assistance in maintaining the unlawful presence of Israel in the Occupied Palestinian Territory (see paragraph 285 (7)). SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 1 |
Although I do not share the Court’s view that Israel’s continued presence in the Occupied Palestinian Territory is unlawful, I agree that all States are under an obligation to not recognize the situation arising from its presence in that territory and to refrain from rendering aid or assistance to Israel in maintaining that situation. The main reason for my position is that I believe that States should not assist Israel in its aim to annex a major part of the Occupied Palestinian Territory and to treat it as its own territory. DECLARATION OF JUDGE TOMKA Para. 8 |
… Third, and more importantly, the consequneces for third States for the breach of the right of self-determination identified by the Court in the current Advisory Opinion, i.e. the duty to co-operate to bring to an end Israeli presence in the Occupied Palestinian Territory (32), the duty not to recognize situations arising from Israel’s presence and the duty not to render assistance in the maintenance of such situations, do not, in my view, flow from the breach of any rule of international law, but rather from the breach of peremptory norms (33). DECLARATION OF JUDGE TLADI Para. 20 |
If there is one aspect of the Opinion that gives me cause for pause it is that having identified the right of self-determination as a peremptory norm, the Court adopts an ambivalent approach to the consequence of its finding. For instance, in paragraph 274, when preparing to identify the consequences of Israel’s presence on the Occupied Palestinian Territory for third States, the Court “observes that the obligations violated by Israel include certain obligations erga omnes.” This language might suggest that the obligations for third States — what we might refer to as the Article 41 consequences for shorthand — flow not from the peremptory status of the right of self-determination but rather from the erga omnes character of the obligations breached. DECLARATION OF JUDGE TLADI Para. 28 |
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The Court’s jurisdiction to give an advisory opinion is based on Article 65, paragraph 1, of its Statute, which provides that “[t]he Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request” Advisory Opinion Para. 23 |
The Court notes that pursuant to Article 96, paragraph 1, of the Charter, the General Assembly “may request the International Court of Justice to give an advisory opinion on any legal question”. Advisory Opinion Para. 24 |
In the present proceedings, the General Assembly put two questions to the Court (see paragraph 1 above). These questions relate first to the legal consequences arising from certain policies and practices of Israel as an occupying Power in a situation of belligerent occupation since 1967. Secondly, they relate to how such policies and practices affect the legal status of the occupation in light of certain rules and principles of international law and to the legal consequences which arise from this status. The Court considers that these questions are legal questions. Advisory Opinion Para. 27 |
In light of the above, the Court concludes that the request has been made in accordance with the provisions of the Charter and of the Statute of the Court and therefore that it has jurisdiction to render the requested opinion. Advisory Opinion Para. 28 |
… the subject-matter of the General Assembly’s request, although it involves Israel and Palestine, concerns the responsibilities of the United Nations and wider questions of international peace and security, as well as certain obligations erga omnes of States. Advisory Opinion Para. 33 |
…The Court has previously recognized that the General Assembly has been involved with the Israeli-Palestine question since 1947, when it recommended the Plan of Partition for Palestine. As the United Nations has “permanent responsibility towards the question of Palestine until the question is resolved”, it follows that the questions asked in the General Assembly’s request for this Advisory Opinion do arise within the scope of its activities in maintaining international peace and security. Therefore, I agree that the Court has jurisdiction to render an advisory opinion in the present case and have accordingly voted in favour of paragraph 285, subparagraph (1), of the operative clause. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 39 |
Where advisory jurisdiction has been established, the Court retains the discretion to decline to give an opinion where there are “compelling reason[s]” for it to do so. The Court must “satisfy itself . . . as to the propriety of the exercise of its judicial function” with reference to these compelling reasons. Thus, while “[a] reply to a request for an Opinion should not, in principle, be refused”, nevertheless, the retention of the discretion of whether to render an advisory opinion “exists so as to protect the integrity of the Court’s judicial function as the principal judicial organ of the United Nations”. As observed by Judge Buergenthal in the Wall Opinion, quoting what the Court said in Western Sahara, the critical question in determining whether or not to exercise its discretion in acting on an advisory opinion request is “whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character”. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 40 |
…Due to the one-sided formulation of the questions posed in resolution 77/247, coupled with the one-sided narrative in the statements of many participants in these proceedings, some of whom do not even recognize the existence or legitimacy of the State of Israel, the Court does not have before it the accurate and reliable information that it needs to render a balanced opinion on those questions. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 42 |
In the present case, many participants have referred to the erga omnes (and possible jus cogens) nature of some of the rights claimed by the Arab Palestinians and the fact that these are “of interest to the international community” at large, and therefore transform the nature of the dispute between Israel and Palestine from a bilateral one. I respectfully disagree. As I have stated above, the Israeli-Palestine conflict and all its attendant complex issues, is historically and essentially a bilateral dispute, in respect of which both parties have subscribed to another mode of dispute resolution, namely international negotiation, and not judicial or third-party settlement. The questions before the Court do not ask it to opine upon the law relating to occupation or to self-determination, in the abstract: the Court’s Advisory Opinion is clearly required to consider the historical context of the conflict between Israel and Palestine spanning decades, including the framework developed by the organs of the United Nations towards settlement of that conflict. Israel has clearly not given its consent to the Court pronouncing itself on the complex issues involved. In this regard, Israel’s participation in the contentious case relating to the application and interpretation of the Genocide Convention must not be confused with, or mistaken for its consent to judicial settlement of the various complex issues outlined in this opinion. Similarly, many of the participants who have weighed in on how the Court should or should not answer the questions before it, are not parties to the conflict, whilst others have other vested interests in seeing the matter resolved one way or another. Of particular concern is the question of the ongoing Gaza war between Israel and Hamas, a matter about which many participants aired their views in their written statements or observations, and which is clearly sub judice in two contentious cases before the Court. The Court would need to carefully navigate its Advisory Opinion away from the issues that are sub judice in those other cases if it is to maintain its judicial integrity. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 47 |
As a fundamental principle of international law, UN institutions (including the principal judicial organ) require the explicit consent of the involved State to mediate disputes between States or between States and non-State entities. The United Nations primarily operates on the principle of State sovereignty and typically cannot impose resolutions without the agreement of the State. Yet as observed above, the Advisory Opinion circumvents State consent by giving judicial opinions over matters that are clearly reserved for the UN and bilateral negotiation framework. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 66 |
… the narrowness of the discretion to decline to give an advisory opinion is acknowledged by the Court itself in numerous cases, where it has observed that the Court’s answer to a request for an advisory opinion “represents its participation in the activities of the Organization, and, in principle, should not be refused”5. This is particularly the case where the request emanates from the other organs of the United Nations, i.e. the General Assembly or the Security Council. If a request should, in principle, not be refused, and if a refusal requires the existence of a compelling reason (the threshold for which is, in fact, so high that this Court has never found a reason compelling enough to refuse a request for an advisory opinion) then does the Court really have discretion in this matter? DECLARATION OF JUDGE TLADI Para. 8 |
For the Court to refuse to respond to a request from the General Assembly or the Security Council when it has jurisdiction to do so would, in my view, amount to the Court second-guessing the decisions of the other principal organs in a way that would be legally problematic. DECLARATION OF JUDGE TLADI Para. 9 |
… the Israeli-Palestinian conflict cannot be seen as a bilateral dispute for a much more normative reason … the international legal system has moved beyond the era of pure bilateralism … how can a case where some of the most fundamental norms of international law, in particula norms of jus cogens, are at stake be a bilateral dispute. I find it morally unthinkable that it could even be contemplated that what is happening in Palestine is a purely bilateral dispute. It is not… DECLARATION OF JUDGE TLADI Para. 11 |
…One can infer from this that the situation in Gaza after 7 October 2023 is not included in the scope of the questions put to the Court. It is therefore appropriately that the Opinion refrains from taking any position on the events that have occurred in Gaza after 7 October 2023. Moreover, had the Court taken a stance on this situation in the present Opinion, it would have risked prejudging some questions raised in two contentious cases currently pending before the Court. We are of the view that, as a general rule, an advisory opinion should not interfere with the resolution of pending contentious cases. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 14 |
The Court did not have evidence before it which would allow it to assert whether and to which extent the control Israel continued exercising over the Gaza Strip after the 2005 withdrawal was justified by security motives, considering, in particular, the military actions conducted by Hamas directed at Israeli territory, even before 7 October 2023. Moreover, nearly all of Israel’s “policies and practices” mentioned in the Opinion refer to the situation in the West Bank. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 16 |
Due to insufficient information presented to it, the Court should have concluded that it was unable to properly pronounce itself on the situation in Gaza prior to 7 October 2023. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 17 |
Accordingly, we are of the view that “Israel’s policies and practices” in the Occupied Palestinian Territory do not affect the “legal status of the occupation”, if this encompasses, as the Opinion states (para. 82), the legality of Israel’s presence in this territory as an occupying Power. To the question (b) posed by the General Assembly, the Court should have therefore responded in line with the above. Such a response, which we believe to be the only legally correct one, would have spared the Court from taking a stance on the legality of the occupation itself, an issue on which it was not directly asked to pronounce itself. In our opinion, it would have been sufficient to note that this issue is not affected by the “policies and practices” in question. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 27 |
The legality ab initio of a situation of military occupation mainly depends on the question of whether the military action which gave rise to the occupation can be considered lawful or unlawful in terms of jus ad bellum. But the Court did not receive sufficient information to rule, on an objective basis, on the respective responsibilities of the various parties involved in the armed conflict of 1967. The Court therefore cannot assess the legality of Israel’s use of force which is at the direct origin of the occupation at issue in the present case […] JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 33 |
We are of the opinion that the legal impact of the Oslo Accords and of the relevant Security Council resolutions should have been duly taken into account by the current Opinion. The combined legal effects of the Oslo Accords and of the relevant Security Council resolutions are pertinent not just for Israel and Palestine, but also for the United Nations organs involved in the Middle East peace process and for the international community as a whole. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 40 |
Actually, a correct combined interpretation of the Oslo Accords and of the relevant Security Council resolutions clearly illustrates their legal effects, which continue to be valid at present […] Naturally, these legal effects impact the obligations of both Israel and Palestine related to the issue of the legality of occupation and to the implementation of the parameters established within the negotiation framework. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 42 |
…Regarding the Middle East peace process, the Security Council, in exercising its primary responsibility for the maintenance of international peace and security under Article 24 of the Charter, adopted numerous relevant resolutions, some of them cited above. The analysis of those resolutions shows, in our view, that they are not merely declaratory, but mandatory and legally binding as far as the principles which they constantly reaffirmed on this matter, are concerned. We regret that the Opinion chose to ignore their relevance and value. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 51 |
Of course, we are of the view that the provisions of the Oslo Accords, freely agreed by the parties, cannot be interpreted as derogating from the rules of international humanitarian law or international human rights law. Nor can such provisions entitle Israel to claim the respect of certain of its rights in the absence of the observance by Israel of its obligations set forth by these Accords. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 58 |
…Thus, on the issue of the legality of occupation, the Court should have responded in the sense that “Israel’s policies and practices” in the Occupied Palestinian Territory do not affect the “legal status of the occupation”, as explained above. Such a response, which we believe to be the only legally correct one, would have spared the Court from taking a stance on the legality of the occupation itself, an issue on which it was not asked to pronounce. Since the Court has taken a stance on this issue, it should have done so correctly by taking into account all relevant parameters, which it did not do. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 60 |
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[…] By asking the Court to examine the policies and practices of one of the parties, while ignoring the policies and practices of the other party or those of interested third States, such as the Arab neighbours, and by asking the Court to determine the legal consequences of Israel’s policies and practices, the Court cannot arrive at a balanced view that is in keeping with its judicial function and character. The practical and realistic solution is a consensual one, jointly arrived at by both parties to the conflict through good faith negotiations within the existing negotiation framework and implementation of existing Security Council resolutions. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 80 |
As stated earlier, Israel and the representatives of the Arab-Palestinians chose to negotiate the terms of Palestinian autonomy or self-determination under the terms and conditions set out in the Oslo Accords which instruments remain valid and binding, […] Final status issues, including permanent borders of a prospective Palestinian State, the administration of Jerusalem, and the return of refugees, are amongst the issues that the parties to the conflict agreed would be determined through negotiation. Seeking or obtaining unilateral recognition of Palestinian statehood or independence within the territory of a sovereign State breaches the Oslo Accords and can only exacerbate the conflict. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 90 |
The complex arrangements made under the Oslo Accords dividing the disputed territories into Areas A, B and C, have arguably resulted in a special legal régime (lex specialis) in relation to the post-1967 territories. As instruments of international law, they impose a complex matrix of mutual rights and obligations, limiting the application of the general principle of law. The Oslo Accord II prohibits both parties from initiating “any step that will change the status of the West Bank, including East Jerusalem and the Gaza Strip, pending the outcome of permanent status negotiations”. The future status of these territories and the nature of an independent or autonomous Palestinian entity can only be settled through good-faith negotiations reflecting a balance of competing interests. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 91 |
The “two-State solution”, required by successive Security Council resolutions, which we will analyse below, is the only one that can respond to the legitimate need for security of both Israel and Palestine. This solution can only arise from a comprehensive understanding reached through negotiations, which must take into account all rights and interests involved: the right of the Palestinian people to self-determination is not incompatible with that of Israel to exist in security, while Palestine’s right to security must also be taken into account. The right to self-determination and the right to security must be implemented simultaneously in order to achieve the coexistence of the two States, which will also mark the end of Israel’s presence as an occupying Power in the Palestinian territory. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 10 |
But, most importantly, the 1993/1995 Oslo Accords formally adopted, between Israel and Palestine, the package “right to self-determination — right to security”, based on the Security Council resolutions 242 (1967) and 338 (1973), with direct impact on the conditions for ending the occupation of the Occupied Palestinian Territory, as well as the framework for negotiations ultimately leading to the “two-State solution” — which again will signify the end of the occupation. Indeed, the occupation being temporary by nature, the occupying Power is under an obligation to end the occupation as soon as it is no longer necessary to ensure its security. The Opinion failed to articulate this reasoning. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 44 |
The current Opinion ignores as well the fact that despite periods of violence and allegations by each side that the other failed to adhere to its commitments, neither the Israeli and Palestinian sides, nor the General Assembly, nor the Security Council have abandoned the central precept that direct negotiation on the basis of the “land for peace” principle is the path to comprehensive, just and lasting peace and security. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 54 |
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Israel is also under an obligation to provide full reparation for the damage caused by its internationally wrongful acts to all natural or legal persons concerned (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 198, para. 152). The Court recalls that the essential principle is that “reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 47). Reparation includes restitution, compensation and/or satisfaction. ADVISORY OPINION Para. 269 |
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. ADVISORY OPINION Para. 270 |
In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons, and populations, where that may be the case, having suffered any form of material damage as a result of Israel’s wrongful acts under the occupation. ADVISORY OPINION Para. 271 |
The other important point that ought to be mentioned is that of the reparations owed by Israel for its violations of international law to the victims in the Occupied Palestinian Territory and to the Palestinian people. This has to be “full reparation”, including restitution and compensation, which must, according to the well-known formula of the Permanent Court of International Justice in the Chorzów Factory case, “as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (see paragraph 269 of the Opinion). DECLARATION OF PRESIDENT SALAM Para. 60 |
As regards compensation, it is not for the Court, in the context of the present Opinion, to establish the specific elements or quantum thereof. It has affirmed the principle and it is now up to all parties concerned to determine the modalities of such compensation, which must be made in accordance with the rules of international law. As the United Nations International Law Commission notes, the injury to be repaired “includes all damage, whether material or moral, resulting from the internationally wrongful act of the State”. Compensation covers “any financially assessable damage including loss of profits so far as this is established in the given case” (ILC, paragraph 2 of the commentary on Article 31 and paragraph 1 of the commentary on Article 36, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10))… DECLARATION OF PRESIDENT SALAM Para. 62 |
Finally, I have serious doubts as to whether it is appropriate to apply the 1928 Chorzów Factory principle of “reparations” (as a remedy that “must, as far as possible, wipe out all the consequences of the [alleged] illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed”) to all of Israel’s violations of international law identified in the Advisory Opinion. This is clearly a situation where there is enough blame to go round, not just of Israel but also of Arab Palestinians (for the failure of prior peace negotiations and for resorting to war) and, to some extent, the international community, for taking so long to find a lasting solution to the Israeli-Palestine conflict. The solution of two States coexisting peacefully side by side, has never lain in the hands of one or the other party. Israel’s unilateral withdrawal from the OPTs (short of vanishing from the face of the earth) is not going to bring about the much-needed peace in the Middle East. This begs the question: what exactly is Israel’s share of the blame for which it should pay reparations? DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 61 |
Besides, in most if not all cases of decolonization or termination of League of Nations or UN Mandates where the occupying or colonial power has benefitted from decades of plundering the natural and mineral resources in the occupied territory or colony, the people of those territories have upon attainment of self-determination, not received any reparations for their loss, much less that restoring them to the status quo ante! The situation in this part of the Middle East is different because as has been shown in the historical context, Israel is not a colonizer. […] Without first ascertaining and balancing the competing sovereignty and territorial claims of the concerned parties, it is, in my view, unrealistic and simplistic to recommend the kind of reparations referred to in the Advisory Opinion. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 62 |
I fully subscribe to all the findings of the Court that the continued presence of Israel in the Occupied Palestinian Territory is illegal; that Israel is under an obligation to bring to an end its unlawful presence as rapidly as possible; that it must cease all new settlement activities immediately, evacuate all the settlers from the Occupied Palestinian Territory and make reparation for the damage caused to all the natural or legal persons concerned in the said Territory (see paragraph 285 (3), (4), (5) and (6)). SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 1 |
You can access the datasheet with the Security filter, here
… With respect to the question of the potential justification of Israel’s differentiation in treatment, the Court has taken note of Israel’s security concerns, as identified by some participants in the proceedings, that might justify restrictions on movement. To the extent that such concerns pertain to the security of the settlers and the settlements, it is the Court’s view that the protection of the settlers and settlements, the presence of which in the Occupied Palestinian Territory is contrary to international law, cannot be invoked as a ground to justify measures that treat Palestinians differently. Moreover, the Court considers that Israel’s measures imposing restrictions on all Palestinians solely on account of their Palestinian identity are disproportionate to any legitimate public aim and cannot be justified with reference to security. Advisory Opinion Para. 205 |
Another significant factor which the Court has overlooked, and which distinguishes the Israel-Palestine conflict from other international situations involving calls for an “immediate, total and unconditional end” of colonization or occupation or expired legal mandate, is the existential and security threats posed to the Jewish people and State of Israel, from the disputed territories and from its adversaries in the neighbourhood and beyond. […] Indeed, many of the wars between Israel and her Arab neighbours have been fought by Israel pre-emptively to remove an immediate and existential military threat originating from either the OPTs or from enemies further afield. […] As pointed out earlier in this opinion, the Security Council has hitherto taken cognizance of Israel’s legitimate security concerns and called for a withdrawal that occurs concurrently with effective security guarantees, as reflected in its resolutions 242 (1967) and 338 (1973) and others. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 56 |
The practical requirement that withdrawal from Palestinian territory should be accompanied by effective security guarantees was also central to the Oslo Accords and the interim agreements70 between Israel and the PLO, which led to the establishment of the Palestinian Authority to which Israel transferred powers of governance over parts of the OPTs. Indeed, the collapse of the Oslo process was brought about by Israel’s unwillingness to continue its withdrawal from the occupied territories in the absence of effective security guarantees from the Palestinian side DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 57 |
In particular, the Advisory Opinion does not consider the tense security situation in the West Bank, which renders it practically impossible for Israeli forces to unilaterally withdraw from occupied territories without putting in place security guarantees for the hundreds of Israeli citizens or settlers (including those that hold valid titles to private land predating 1948) who would remain under Palestinian control. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 58 |
Some participants argue that Israel has the right to maintain its presence in the Occupied Palestinian Territory, in particular for its security needs. I agree with the Court that Israel’s policies and practices, as they have presented themselves, are not justified by its security concerns. Israel’s security cannot be guaranteed through its unilateral and destructive policies and measures against the Palestinian people. DECLARATION OF JUDGE XUE Para. 9 |
Moreover, although I consider Israel’s security needs to be legitimate, this does not justify either policies and measures of segregation or apartheid. On the contrary, requiring respect for international law, and its peremptory norms in particular, as well as for human rights and international humanitarian law is in the ultimate interest of Israel. The prolonged occupation, creeping settlement and annexation of occupied lands, and the discriminatory legislation and measures that accompany them, undermine Palestine’s — equally legitimate — right to security. Only respect for international law can bring peace to the two peoples and lasting security for Israel and Palestine. Justice, peace and security cannot wait any longer. DECLARATION OF JUDGE BRANT Para. 13 |
I accept that security concerns are very important, and that Israel faces threats to its security, from amongst others Hamas, as the events of 7 October 2023 illustrate. Yet, as a first general point, when addressing security concerns, it should be recalled that all States, and not just Israel, have security interests. This includes Palestine. Often, when the “security concerns” claim is made, it is as if only Israel has security concerns or that somehow, Israel’s security concerns override those of Palestine’s. The second general point to make is that security interests as such, no matter how serious or legitimate, cannot override rules of international law, a point made by the Court. Indeed, save where called for by a specific rule, security concerns cannot even serve as a balance against rules of international law and certainly not against peremptory norms. Thus, the notion that the Palestinian right of self-determination must be balanced with, or is even subject to, Israeli security concerns is incongruous as a matter of international law. In fact, such arguments are not only incongruous, they also are dangerous. Allow me to illustrate by means of a “hypothetical” scenario: Imagine that one State believes, legitimately perhaps, that another State joining a defence alliance is a threat to its security interests. Can such a State decide to use military force to prevent the other State from joining the defence alliance? If so, we are moving dangerously into the Athenian paradigm where “the strong do what they can and the weak suffer what they must”. DECLARATION OF JUDGE TLADI Para. 44 |
Two particular legal bases addressing Israel’s security concerns may be referred to. These are self-defence and the United Nations Security Council framework for addressing the Middle East conflict. In relation to the situation in the Occupied Palestinian Territory, the self-defence argument is multifaceted and raises different issues depending on the context in which it is raised. It may be raised in the context of Israeli occupation as such, i.e. the occupation itself is an act of self-defence (or was established pursuant to an act of self-defence), or it may be raised in the context of particular practice, policies or acts, such as the construction of the wall or various military operations launched against the Palestinian territory. In whatever context it is raised, it is important to emphasize that self-defence is subject to strict requirements, including that of an armed attack from a State, proportionality and necessity. Moreover, given the overall situation of occupation, the self-defence argument (in the context of particular acts or practices, such as military operations) will run up against the Court’s finding in the Wall Advisory Opinion to the effect that self-defence does not apply (or “has no relevance”) because Israel “exercises control in the Occupied Palestinian Territory and that . . . the threat which it regards as justifying [forcible measures] originates within, and not outside, that territory’61. For present purposes, I can say only that any one of these provides insurmountable hurdles for anyone seeking to justify Israeli practices and policies as acts of self-defence. DECLARATION OF JUDGE TLADI Para. 48 |
… The argument, as I understand it, is that the framework established by the Security Council requires that the right of self-determination of the Palestinians cannot be addressed without also addressing the security concerns of Israel… The basis for this contention is to be found in the provisions of Security Council 242 (and subsequent resolutions which affirm resolution 242). … DECLARATION OF JUDGE TLADI Para. 49 |
The rules of interpretation of resolutions of political organs of international organizations are, in general, with the necessary adjustments, similar to the rules for interpreting treaties. … First, it bears mentioning that there is nothing in the language of the resolution that suggests that at issue is the security of Israel. The resolution speaks of “political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force”. Let’s not forget, Palestine has none of these! It’s political independence is severely compromised; the occupation by Israel, which has now morphed into annexation, ensures that it does not have recognized borders; it is decidedly not free from threats, so that its security concerns remain unachieved. DECLARATION OF JUDGE TLADI Para. 51 |
Second, and more importantly, there is nothing in the ordinary meaning of the words of Resolution 242 that suggests that the two elements are interdependent … DECLARATION OF JUDGE TLADI Para. 52 |
Finally, this reading of the resolution, i.e. that the two elements are not forever and inextricably tied at the hips, is clear from the fact that the Security Council itself has on occasion addressed the question of occupation without, at the same time addressing the second element. In Resolution 476, for example, the Council reaffirmed “the overriding necessity for ending the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem” without referring at all, not even in the preamble, to the second element. DECLARATION OF JUDGE TLADI Para. 53 |
In conclusion, security concerns apply to all States. All States have a legitimate interest in peaceful existence without threats to their security. How States promote and protect their security, however, is subject to international law and security interests cannot override legal rules, and certainly not the most fundamental rules having the character of jus cogens. DECLARATION OF JUDGE TLADI Para. 54 |
The “two-State solution”, required by successive Security Council resolutions, which we will analyse below, is the only one that can respond to the legitimate need for security of both Israel and Palestine. This solution can only arise from a comprehensive understanding reached through negotiations, which must take into account all rights and interests involved: the right of the Palestinian people to self-determination is not incompatible with that of Israel to exist in security, while Palestine’s right to security must also be taken into account. The right to self-determination and the right to security must be implemented simultaneously in order to achieve the coexistence of the two States, which will also mark the end of Israel’s presence as an occupying Power in the Palestinian territory. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 10 |
In fact, the relevant question is whether the occupying Power — Israel — could today completely withdraw from the occupied territories “as rapidly as possible”, in the absence of any guarantee, without exposing its security to substantial threats. In the current context, we find it quite difficult to answer this question in the affirmative. Israel’s full withdrawal from the occupied territories and the implementation of the right to self-determination by the Palestinian people is intrinsically linked to Israel’s (and Palestine’s) right to security. From this perspective, the fact that “the existence of the Palestinian people’s right to self-determination cannot be subject to conditions on the part of the occupying Power, in view of its character as an inalienable right” (para. 257) cannot limit Israel’s right to security. This right is an intrinsic part of the State’s fundamental right “to exist in peace and security” (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 183, para. 118) or “to survival” (see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 263, para. 96), in other words, of the sovereignty. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 36 |
Israel’s right to security, but also that of Palestine, which represent the second element of the above-mentioned package along with the right to self-determination, as main elements of the “two-State solution”, are of particular relevance. Regrettably, the right to security was almost completely ignored by the current Opinion. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 48 |
But, in our view, the package “right to self-determination — right to security” does not exclusively refer to Israel’s right to security. The Security Council resolution 242 (1967) sets out that to achieve a just and lasting peace in the Middle East, the relevant parties must respect and acknowledge “the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force”. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 49 |
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…The Court considers that, in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law. ADVISORY OPINION Para. 233 |
First, the Court recalls that the right to territorial integrity is recognized under customary international law as “a corollary of the right to self-determination” (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 134, para. 160). In the context of Palestine, the General Assembly and the Human Rights Council have called for “the respect for and preservation of the territorial unity, contiguity and integrity of all of the Occupied Palestinian Territory, including East Jerusalem” (for example, General Assembly resolution 77/208 of 15 December 2022, ninth preambular paragraph; Human Rights Council resolution 49/28 of 1 April 2022, para. 5). The Court considers that Israel, as the occupying Power, has the obligation not to impede the Palestinian people from exercising its right to self-determination, including its right to an independent and sovereign State, over the entirety of the Occupied Palestinian Territory. ADVISORY OPINION Para. 237 |
The Court has already found that Israel’s settlement policy has fragmented the West Bank and severed East Jerusalem from it (see paragraph 164 above). The sprawl of settlements in the West Bank, coupled with the expansion of a road network to which Palestinians have limited or no access, has had the effect of encircling Palestinian communities in enclaves in the West Bank (see paragraphs 200 and 227 above). Moreover, Israel’s annexation of large parts of the Occupied Palestinian Territory violates the integrity of the Occupied Palestinian Territory, as an essential element of the Palestinian people’s right to self-determination. ADVISORY OPINION Para. 238 |
Second, by virtue of the right to self-determination, a people is protected against acts aimed at dispersing the population and undermining its integrity as a people… The Court has also found above that Israel’s settlement policy as a whole, its annexation of territory and its related legislation and measures that discriminate against Palestinians in the occupied Palestinian Territory contribute to the departure of Palestinians from certain areas of the Occupied Palestinian Territory, notably from Area C and East Jerusalem. Moreover, Israel’s strict restrictions on movement between the Gaza Strip, the West Bank and East Jerusalem divide the Palestinian populations living in different parts of the Occupied Palestinian Territory (see paragraphs 202 and 206 above). In the Court’s view, these policies and practices undermine the integrity of the Palestinian people in the Occupied Palestinian Territory, significantly impeding the exercise of its right to self-determination. ADVISORY OPINION Para. 239 |
A third element of the right to self-determination is the right to exercise permanent sovereignty over natural resources, which is a principle of customary international law (see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 251, para. 244)… In depriving the Palestinian people of itsenjoyment of the natural resources in the Occupied Palestinian Territory for decades, Israel has impeded the exercise of its right to self-determination. ADVISORY OPINION Para. 240 |
Fourth, a key element of the right to self-determination is the right of a people freely to determine its political status and to pursue its economic, social and cultural development. This right is reflected in resolutions 1514 (XV) and 2625 (XXV), and it is enshrined in common Article 1 of the ICCPR and the ICESCR (see paragraph 233 above). The Court has already discussed the impact of Israel’s policies and practices on some aspects of the economic, social and cultural life of Palestinians, in particular by virtue of the impairment of their human rights. The dependence of the West Bank, East Jerusalem, and especially of the Gaza Strip, on Israel for the provision of basic goods and services impairs the enjoyment of fundamental human rights, in particular the right to self-determination (“Economic and social repercussions of the Israeli occupation on the living conditions of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab population in the occupied Syrian Golan”, UN doc. A/78/127-E/2023/95 (30 June 2023)). ADVISORY OPINION Para. 241 |
… The Court thus considers that Israel’s policies and practices obstruct the right of the Palestinian people freely to determine its political status and to pursue its economic, social and cultural development. ADVISORY OPINION Para. 242 |
The prolonged character of Israel’s unlawful policies and practices aggravates their violation of the right of the Palestinian people to self-determination. As a consequence of Israel’s policies and practices, which span decades, the Palestinian people has been deprived of its right to self-determination over a long period, and further prolongation of these policies and practices undermines the exercise of this right in the future. For these reasons, the Court is of the view that Israel’s unlawful policies and practices are in breach of Israel’s obligation to respect the right of the Palestinian people to self-determination. The manner in which these policies affect the legal status of the occupation, and thereby the legality of the continued presence of Israel in the Occupied Palestinian Territory, is discussed below (see paragraphs 255-257). ADVISORY OPINION Para. 243 |
… It should be clarified that, while Israel’s policies and practices in the Palestinian territory occupied since 1967 clearly constitute a violation of the Palestinian people’s right to self-determination, the failure to respect this right dates back to 1948 and not 1967, as recalled by General Assembly resolution 32/20, adopted in 1977 and quoted above, in which the Assembly stated that it was “[d]eeply concerned . . . that the Palestinian people, after three decades, [were] still deprived of the exercise of their inalienable national rights” (emphasis added). In this respect, I feel that the Court’s reasoning should be supplemented by a reference to Israel’s obligations under resolution 181 (II). DECLARATION OF PRESIDENT SALAM Para. 37 |
… In other words, neither Israel nor Palestine can claim to derive rights from the resolution while rejecting or ignoring the rights of the other party enshrined in the same text. It follows that the proclamation of an independent Jewish State on 14 May 1948 based on resolution 181 (II) necessarily entails a commitment to the establishment of an independent Arab State. In this regard, it should be recalled that the State of Israel’s proclamation of independence provides that the former is “ready to cooperate with the agencies and representatives of the United Nations in implementing the [said] resolution”. Israel has therefore indisputably committed itself not only to respecting resolution 181 (II), but also to implementing it. DECLARATION OF PRESIDENT SALAM Para. 39 |
It was, in any event, on this express condition that Israel was admitted to the United Nations. Thus, in resolution 273 (III) by which it admitted Israel as a Member of the United Nations, the General Assembly stated that it did so while “[r]ecalling its resolutions of 29 November 1947 [181 II] and 11 December 1948 [194 III] and taking note of the declarations and explanations made by the representative of the Government of Israel before the ad hoc Political Committee in respect of the implementation of the said resolutions”. DECLARATION OF PRESIDENT SALAM Para. 40 |
However, in this Opinion the Court has not determined all the legal consequences arising from this situation, in particular the obligations incumbent on Israel. Israel’s admission to the United Nations gives rise to rights but also to legal obligations. Thus, having undertaken to implement resolution 181 (II), Israel is under a legal obligation not to hinder the exercise of the Palestinian people’s right to self-determination, or to oppose the proclamation of a Palestinian State by the representatives of the Palestinian people, and indeed it cannot do so without undermining its own rights, the existence of the two States being inextricably linked in the same legal instrument. DECLARATION OF PRESIDENT SALAM Para. 41 |
[…] It has been argued that the Palestinian Arab population living within the Mandate also had and continue to have a right to self-determination. However, the founding documents of the Mandate (including General Assembly resolution 181 (1947)) are silent on the issue of the self-determination of Palestinian Arabs living within the Mandatory territory, implying that the question of their self-determination was perceived as one of “internal self-determination” that would require negotiation and mutual agreement. Be that as it may, the rights of multiple nations to self-determination on a given territory should not disturb the application of the principle of uti possidetis juris. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 79 |
Whilst there is no doubt that the right to self-determination is a right erga omnes, to which the Palestinian people are entitled, in the present context, that question raises issues of the territorial borders and the safety and security of both the prospective independent Palestinian State and the Israeli State coexisting side by side. These issues, including the proposed frontiers of the two States, territorial inviolability, and legitimate security concerns of both peoples, have not been addressed by the Advisory Opinion. […] DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 80 |
International law arguably supports the right of Arab-Palestinians to self-determination but leaves it to the concerned parties (including the State of Israel which currently claims sovereignty over the disputed territory by virtue of uti possidetis juris) to agree upon the choice of means to fulfil that right. As is reflected in Security Council resolutions 242 and 338, international law does not allow the self-determination to conflict with the sovereign rights of an existing sovereign State, including its rights to territorial and secure and integrity, political independence defensible borders. If, pursuant to uti possidetis juris, all the territory covered by the Mandate of Palestine in May 1948 became the sovereign territory of Israel, then Palestinian self-determination will necessarily the form of autonomy that does not conflict with that sovereignty. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 81 |
Under contemporary international law, it is well established that the principle of self-determination applies to all peoples under colonialism, alien subjugation, foreign domination and exploitation (Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly resolution 1514 (XV), adopted on 14 December 1960; Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV), adopted on 24 October 1970). This principle has obtained a peremptory character in international law with regard to peoples in those contexts. Foreign occupation, by definition, is a type of foreign domination. By virtue of the principle of prohibition of acquisition of territory by force, it must be temporary in nature and terminated as soon as possible. DECLARATION OF JUDGE XUE Para. 3 |
Given the ample evidence as demonstrated in the Opinion, Israel’s prolonged occupation of the Palestinian territory, coupled with its policies and practices adopted therein, has severely impeded the Palestinian people from exercising its right to self-determination. […] The effects of Israel’s occupation in that regard have little difference from those under colonial rule, which has been firmly condemned under international law (see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 95). DECLARATION OF JUDGE XUE Para. 4 |
The ambiguity inherent in the words “its right to an independent and sovereign State” is a further obstacle to the full implementation of the right of the Palestinian people to self-determination, in that it contributes indirectly to the position that the proclamation of the State of Israel on 14 May 1948 was somehow made in respect of territory belonging to no one or terra nullius, since the Arab States had refused the United Nations Partition Plan in General Assembly resolution 181 (II) of 1947, and the rights of the United Kingdom as a mandatory Power had ceased on 15 May 1948, the date its High Commissioner left, marking the end of the British Mandate over Palestine4. Is it necessary to recall that, during that Mandate, Palestine had a government, police, a currency and laws that came from a “constitutional” framework dating back to 1922, even if it fell to the United Kingdom to promulgate all such provisions? SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 4 |
The Court considered that “in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law” (paragraph 233). [….] It was developed in General Assembly resolution 1514 (XV) and in principle VII of resolution1541 (XV) on decolonization, both dating back to 1960. General Assembly resolution 2621 (XXV) of 1970 declares that “the further continuation of colonialism in all its forms and manifestations [is] a crime which constitutes a violation of the Charter of the United Nations, the Declaration on the Granting of Independence to Colonial Countries and Peoples and the principles of international law” (A/RES/2621 (XXV)). SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 18 |
[…] The Court has established these consequences in the present proceedings, linking them to the nature and importance of the rights and obligations at issue, which require all States “not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory” and “not to render aid or assistance in maintaining the situation created by Israel’s illegal presence” (paragraph 279, see also paragraph 275). It is, however, regrettable that the Court has not directly established the link between the finding that the right to self-determination has the status of a peremptory norm and the consequences of its violation. SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 22 |
[…] Thus, a prolonged foreign occupation, such as the one under consideration in these proceedings, becomes alien domination within the meaning of resolution 1514 (XV) and therefore justifies the right to self- determination being elevated to the level of a peremptory norm in international law. SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 28 |
Thus, the Court gives the primacy of the right to self-determination its full import and weight in the hierarchy of the fundamental rights and duties that structure the contemporary international order. This is of prime importance and should be recalled at all times and in all places to all people |
Furthermore, through the construction of settlements and related infrastructure, severe restrictions on movement within and between the parts of the Occupied Palestinian Territory, and other policies and practices detailed by the Court, Israel has exploited its use of force as an occupying Power across the Occupied Palestinian Territory in a manner that seeks to permanently obstruct the exercise of the right of the Palestinian people to self-determination, particularly its right to territorial integrity and political independence, including the right to an independent and sovereign State. This suppression is part and parcel of Israel’s effort to permanently control the Occupied Palestinian Territory in violation of the jus ad bellum. JOINT DECLARATION OF JUDGES NOLTE AND CLEVELAND Para. 12 |
In any event, a régime of racial segregation or apartheid makes the fulfilment of the Palestinian people’s right to self-determination impossible. As duly noted by some participants, the discriminatory nature of these policies and practices suppresses the equality, identity and dignity at the heart of self-determination. DECLARATION OF JUDGE BRANT Para. 12 |
It finds that “[a]s a consequence of Israel’s policies and practices, which span decades, the Palestinian people has been deprived of its right to self-determination” (Advisory Opinion, para. 243), a conclusion I share. However, the right to self-determination has not been fully realized for the people of either Palestine or Israel. The people of Israel, too, have the right to self-determination, including the right to political independence, to territorial integrity, and to live in peace and security within recognized borders. Violent attacks against the State of Israel and its people, and the refusal of other States to recognize the legitimate existence of the State of Israel — including a number of the States participating in these advisory proceedings — also violate this right. The right of the peoples of both Palestine and Israel to live in peace within secure and recognized borders is an essential element to securing regional peace (UNSC resolution 242 (1967); UNSC resolution 338 (1973); UNSC resolution 1515 (2003); UNSC resolution 2334 (2016)). SEPARATE OPINION OF JUDGE CLEVELAND Para. 2 |
Regrettably, the Court makes no meaningful effort to grapple with the assaults on the right to self-determination that have confronted the people of Israel since the State’s inception. In addition to addressing the ongoing obstacles to the right of self-determination of the Palestinian people – which are myriad and egregious – I believe that, in rendering this Opinion, the Court had a responsibility to acknowledge, and to take into greater account, the ongoing threats to Israel and its people. SEPARATE OPINION OF JUDGE CLEVELAND Para. 3 |
The Court nevertheless attempts, in the space of a single paragraph, to bring Gaza within its conclusion that Israel’s presence in the “entirety” of the Occupied Palestinian Territory is unlawful, based on the integrity of the Occupied Palestinian Territory (Advisory Opinion, para. 262). SEPARATE OPINION OF JUDGE CLEVELAND Para. 16 |
However, this solitary paragraph does not explain how a violation of the right to self-determination — in the absence of a violation of the prohibition of acquiring territory by force — renders an occupying Power’s presence unlawful. Nor does it explain how such a violation can somehow override any legitimate exercise of the right to self-defence that Israel may have with respect to the Gaza Strip. SEPARATE OPINION OF JUDGE CLEVELAND Para. 17 |
Finally, I believe the Court’s Opinion makes clear that it would violate the jus ad bellum for Israel to use its position as an occupying Power to seek to exercise permanent control over the Occupied Palestinian Territory as a whole, including the Gaza Strip. Such use of force would also further compound the violations of the Palestinian people’s right to self-determination. SEPARATE OPINION OF JUDGE CLEVELAND Para. 26 |
The Court declares, for the first time, that the right to self-determination is a peremptory norm of international law. In so doing, it states that “in cases of foreign occupation such as the present case the right to self-determination constitutes a peremptory norm” (Advisory Opinion, para. 233). Unfortunately, the Court provides no explanation of what it means by “cases of foreign occupation such as the present case”, or how this formulation relates to the concept of a peremptory norm of international law. SEPARATE OPINION OF JUDGE CLEVELAND Para. 31 |
In my view, in referring to “foreign occupation such as the present case”, the Court was focusing on the features of Israel’s occupation that are potentially analogous to a situation of foreign domination. These features include a situation of prolonged occupation characterized by annexation through permanent control and the accompanying suppression of self-determination, over a period of decades. Any foreign occupation, by definition, however lawful, will likely involve the temporary denial of aspects of the right to self-determination. Therefore, by using the formulation “foreign occupation such as the present case”, the Court intended to make clear that it is the particular features of Israel’s prolonged occupation that analogize it to a situation of alien subjugation and foreign domination which implicate the right to self-determination as a peremptory norm. SEPARATE OPINION OF JUDGE CLEVELAND Para. 33 |
In other words, the Court did not need the pronouncement that self-determination constitutes a peremptory norm of international law for its analysis and did not adopt it for that reason. The Court made the pronouncement because it believed it to be legally correct. SEPARATE OPINION OF JUDGE CLEVELAND Para. 35 |
… The main basis for this finding is that Israeli presence in the Occupied Palestinian Territory constitutes a violation of the Palestinian right of self-determination, in addition to constituting a breach of the prohibition on the acquisition of territory by force. The Court reaffirms its previous descriptions of the right of self-determination as “one of the essential principles of contemporary international law” and that the obligation to respect this right is owed erga omnes. These are not new, and the Court had previously used these descriptions. What is new is the Court’s explicit recognition of the right of self-determination as a peremptory norm of international law. At paragraph 233 the Court states that it “considers that, in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law”. The qualifier “in cases of foreign occupation such as the present case” is rather unclear, but I understand it to mean that the element of the right of self-determination which is implicated in the present case, i.e. the right of the Palestinian people to not have their right of self-determination impeded by the ongoing foreign occupation by Israel, is assuredly a peremptory norm of international law. This statement would be without prejudice to the peremptory status of other elements of the right of self-determination (which were not at issue in this case). In the same way, stating that the (narrower) prohibition of aggression is a peremptory norm does not necessarily mean that the broader prohibition on the use of force is itself not peremptory. SEPARATE OPINION OF JUDGE CLEVELAND Para. 14 |
There may be one of several explanations for the Court’s historical reluctance to explicitly acknowledge the peremptory status of norms, and in particular of the right of self-determination. First, it might be that describing self-determination as a peremptory norm was seen by the Court as unnecessary, or to use the language of Judge Abraham’s separate opinion in Belgium v. Senegal in respect of the peremptory norm of prohibition of torture, a “mere obiter dictum, which the Court could have omitted without depriving its reasoning of any vital element”20. In Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (hereinafter “Chagos”) too, apparently, the Court believed that to describe self-determination as a peremptory norm was unnecessary for the purposes of answering the question posed by the General Assembly21. The second possibility is that the Court simply did not accept until now that self-determination was a norm of jus cogens. Indeed, in the aftermath of Chagos it was argued by some that the Court’s approach was evidence that it did not believe self-determination to be a peremptory norm22. Neither of these reasons are remotely convincing and I wish to address each in turn. DECLARATION OF JUDGE TLADI Para. 17 |
This view reflects a perfectly reasonable interpretation of the Oslo Accords. But, at the same time, it is obviously an incomplete response to a rather complex question. In my view, a proper judicial response would have required the Court to consider the legal implications of the argument raised by these States and therefore the relationship between the right of self-determination and the Oslo Accords. Such a response would have to be based on Article 53 of the Vienna Convention on the Law of Treaties. In other words, even if the Oslo Accords justified the current presence of Israel on the Occupied Palestinian Territory, the Accords would, if they are in breach of the peremptory norm of self-determination, be invalid. Having laid out this basic proposition, the Court could then state that at any rate, the Oslo Accords ought to be interpreted in such a way as to render them consistent with the right of self-determination55, which leads to the interpretation of the Accords offered by the Court. But to engage in this legal reasoning, the Court would need to acknowledge (yet again) the peremptory character of the right of self-determination (and the other norms in question). Unfortunately, because of its residual hesitancy to acknowledge peremptory norms, the Court skips several steps and jumps to conclusions which, without more, are devoid of legal reasoning. DECLARATION OF JUDGE TLADI Para. 35 |
More generally, we believe that numerous aspects of Israel’s policy, especially over the past twenty years, can only be understood as aiming to gradually incorporate the majority of Area C of the West Bank into Israel’s own territory (in addition to the formal annexation of East Jerusalem in 1980). The implementation of such an objective, as the Court observed in 2004 within the narrower context of construction of the wall, “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right” (ibid., para. 122). DECLARATION OF JUDGE TLADI Para. 3 |
…It is not the occupation itself which violates the right to self-determination; it is the annexation and the practices related to it. By its very nature, any military occupation hinders the full exercise by the population of the occupied territory of its right to self-determination. This alone cannot render the occupation unlawful. To rule on the legality of a prolonged occupation, security considerations, which are essential for this purpose but almost entirely ignored in the Opinion, must be integrated into the analysis. We will return to this point later. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 26 |
…There is no legal connection whatsoever between the assertion (which is correct per se) that the Palestinian people should be able to exercise its right to self-determination on the whole of the Occupied Palestinian Territory and the extension of the “illegality” of the occupation (which as such, as shown in this joint opinion, has no legal basis) to all various parts of this territory. In reality, this discrepancy only underscores the fundamental flaw that taints the entire reasoning. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 29 |
The determination of whether the obligation to respect the right to self-determination has been violated is complex in situations of occupation. Occupation in all its forms, by its very nature, effects the exercise of the right to self-determination of the people living in the occupied territory. Thus, occupation itself cannot constitute a violation of the obligation to respect the right to self-determination. In the present Opinion, the Court analyses whether Israel’s policies and practices impede the right of the Palestinian people to self-determination … and concludes that Israel’s policies and practices are in breach of Israel’s obligation to respect the right of the Palestinian people to self-determination (para. 243). SEPARATE OPINION OF JUDGE IWASAWA Para. 16 |
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… To the extent that such concerns pertain to the security of the settlers and the settlements, it is the Court’s view that the protection of the settlers and settlements, the presence of which in the Occupied Palestinian Territory is contrary to international law, cannot be invoked as a ground to justify measures that treat Palestinians differently… Advisory Opinion Para. 205 |
… In the Court’s view, punitive demolition of property amounts to punishment of other persons living in or using this property for acts that they have not committed, and it is therefore contrary to Article 33 of the Fourth Geneva Convention. The Court also recalls that the occupying Power is authorized to repeal or suspend penal laws in force in the occupied territory in so far as they constitute, inter alia, “an obstacle to the application of [that] Convention” (second paragraph of Article 64 of the Fourth Geneva Convention). This provision implies that, even if Palestine Defence (Emergency) Regulation 119 remains in force as a matter of domestic law, it may not be relied on by Israel to act in a manner that is inconsistent with its international obligations under the Fourth Geneva Convention, and in particular its obligation to refrain from imposing collective punishment. Advisory Opinion Para. 212 |
Israel’s practice of punitive demolitions of Palestinian property, being contrary to its obligations under international humanitarian law, does not serve a legitimate public aim. The Court considers that, because this practice treats Palestinians differently without justification, it amounts to prohibited discrimination under Articles 2, paragraph 1, and 26 of the ICCPR, Article 2, paragraph 2, of the ICESCR, and Article 2 of CERD. Advisory Opinion Para. 213 |
…the rate of demolitions has steadily increased. The United Nations High Commissioner for Human Rights has reported the demolition of more than 7,000 Palestinian-owned structures between 2012 and 2022, mostly in Area C and East Jerusalem. Among these structures, more than 1,600 were structures providing humanitarian aid, more than 600 were water, sanitation and hygiene buildings, and more than 20 were schools educating approximately 1,300 children (“Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan: Report of the United Nations High Commissioner for Human Rights”, UN doc. A/HRC/52/76 (15 March 2023), paras. 25-26). Advisory Opinion Para. 217 |
In light of the above, the Court considers that Israel’s planning policy in relation to the issuance of building permits, and in particular its practice of property demolition for lack of a building permit, which treats Palestinians differently from settlers without justification, amounts to prohibited discrimination, in violation of Articles 2, paragraph 1, and 26 of the ICCPR, Article 2, paragraph 2, of the ICESCR, and Article 2 of CERD. Advisory Opinion Para. 222 |
Regarding the first point, the Court recalls that Israel has implemented a policy of settlement and annexation throughout its occupation of Palestinian territory. The Advisory Opinion highlights the following components of this policy: the transfer of Israeli civilians into the Occupied Palestinian Territory, the forced displacement of the Palestinian population, the confiscation of land, the exploitation of natural resources and the extension of Israeli law to this territory. Each of these already constitutes in itself a serious violation of the relevant norms of international humanitarian law and international human rights law, with which Israel, as an occupying Power, is bound to comply. DECLARATION OF PRESIDENT SALAM Para. 4 |
The Opinion rightly points out in paragraph 115 that the establishment of these settlements is a clear violation of Article 49 (6) of the Fourth Geneva Convention, which prohibits the deportation of the population of the occupied territory and the transfer by the occupying Power of its population to the occupied territory. These are therefore serious violations that the States parties to the Geneva Conventions are obliged to punish; they are also under an obligation to track down those responsible for committing or ordering the commission of such offences. The ICRC has pointed out that this obligation is also a customary one, extending to all States, which must not only investigate such grave breaches allegedly committed by their nationals or their armed forces, or on their territory, they also have the right to confer on their national courts universal jurisdiction for the punishment of such grave breaches for which no statute of limitations may apply (ICRC Study on Customary International Law, rules 156 to 158, 160 and 161). DECLARATION OF PRESIDENT SALAM Para. 12 |
In this respect, it is also undoubtedly worth recalling that the “deportation of population” is an act constituting a crime against humanity under Article 7 of the Rome Statute of the International Criminal Court (hereinafter the “Rome Statute”). Similarly, the direct or indirect transfer by an occupying Power of part of its civilian population into the territory that it occupies constitutes a war crime under Article 8 of the Rome Statute. It should also be noted that, according to Article 8 bis (2) of the Rome Statute, “any annexation by the use of force of the territory of another State or part thereof” constitutes a crime of aggression “regardless of a declaration of war”… DECLARATION OF PRESIDENT SALAM Para. 13 |
First, as the Court notes, Israel’s settlement policy in Gaza prior to 2005 “was not substantially different” from the current policy in East Jerusalem and the West Bank (Advisory Opinion, para. 114). For the reasons stated by the Court, the transfer of the population of an occupying Power into an occupied territory is prohibited under Article 49 of the Fourth Geneva Convention (ibid., paras. 115-119). Thus, any future attempt to resurrect such a settlement policy with respect to the Gaza Strip would constitute a “flagrant violation” of this prohibition (UNSC resolution 465 (1980) of 1 March 1980; see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 183-184, para. 120). SEPARATE OPINION OF JUDGE CLEVELAND Para. 23 |
In particular, we share the view that the general and systemic practice of establishment and development of settlements in the West Bank is contrary to Article 49 of the Fourth Geneva Convention, as the Court already observed in 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 184, para. 120). JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 3 |
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Another complex issue which is relevant to analysing the legal consequences of the illegality of Israel’s policies and practices is the fact that Israel has its own sovereignty claims regarding parts of the territory which the international community views as the OPT71, an issue not given any attention by most participants. […] Requiring Israel’s “immediate, total and unconditional” withdrawal would be tantamount to denying Israel’s legal claims pertaining to parts of those territories. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 59 |
To determine the competing sovereignty claims, the Court would need to shift its focus from a review of “Israel’s policies and practices in the OPTs” to a review of Israel and Palestine’s competing sovereignty claims over different parts of the OPTs, notwithstanding that such matters were not sufficiently argued during these proceedings. Clearly these are complex issues that rightly call for a negotiated, rather than judicial settlement. This is yet another reason why resolution 242 calls for an agreement leading to “termination of all claims” and the acknowledgment of “secure and recognized boundaries”. This is also why the Oslo Accords envisioned final status negotiations over borders. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 60 |
[…] The situation in this part of the Middle East is different because as has been shown in the historical context, Israel is not a colonizer. It was Britain that originally held the mandate for Palestine, and the State of Israel was the only State to emerge as an independent State, inheriting the whole of the disputed territory under uti possidetis juris. Without first ascertaining and balancing the competing sovereignty and territorial claims of the concerned parties, it is, in my view, unrealistic and simplistic to recommend the kind of reparations referred to in the Advisory Opinion. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 62 |
Article 2, paragraph (1), of the Charter of the United Nations enshrines the idea that all Member States of the UN, regardless of their size, population, economic power or military strength, are considered equal under international law. The principle of sovereign equality necessitates that international law be applied consistently across all States and situations. Yet, the application of international law to the Israeli-Palestinian conflict seems to diverge from this standard. For instance, the characterization of Israeli settlements in the post-1967 territories, including East Jerusalem, as illegal and a serious violation of international law, or the assertion that the borders as of 4 June 1967 serve as Israel’s de facto boundaries, or the prescription of a mandatory two-State solution — these are interpretations not uniformly applied to other regions deemed “occupied” […] the General Assembly’s questions, and the whole approach in the Advisory Opinion are one-sided and imbalanced and ignore or downplay Israel’s existing territorial and sovereignty rights. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 64 |
The questions of Israel’s alleged occupation of certain Palestinian territories since 1967, or of its annexation of foreign territory, or of the alleged infringement of the Palestinian people’s right to self-determination, are all questions that cannot be answered without first determining the territorial scope (i.e. borders) of the State of Israel, a critical matter regarding which the Court has not received arguments or evidence. The borders, the territorial sovereignty of both Israel and Palestine, are another sensitive area the Court cannot simply presume to appreciate based on the one-sided narrative contained in the statements of the pro-Palestinian group of States. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 67 |
General Assembly resolution 77/247 refers to the West Bank, the eastern part of Jerusalem, and the Gaza Strip as “Palestinian territory”. The resolution appears to assume that sovereign rights to this area rest exclusively with the Palestinian people. It disregards any potential claims the State of Israel and the Jewish people may have with respect to some of these areas. In law and in fact, for over a century, sovereign legal title over the West Bank (and indeed the Gaza Strip) has been, and continues to be, indeterminate, or in abeyance. […] Under these agreements, the question of the final disposition of these areas shall be determined only by negotiation. Until then, both sides have agreed to provisional arrangements, which continue to apply and govern the legal relationship between them today. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 69 |
[…] Uti possidetis juris is one of the main principles of customary international law intended to ensure stability, certainty and continuity in the demarcation of territorial boundaries of States emerging from decolonization or mandates such as the British Mandatory Palestine. In effect, the principle of uti possidetis juris transforms the colonial and administrative lines existing at the moment of birth of the new State into national borders. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 70 |
As stated above, when Britain terminated its stewardship over what was left of the Mandate for Palestine in 1947, according to the principle of uti possidetis juris, the administrative boundaries of the Mandate for Palestine on 14 May 1948 became the borders of the independent State of Israel (the only State to emerge from Mandatory Palestine at the time of Britain’s withdrawal) […] DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 72 |
Israel’s independence would thus appear to fall squarely within the bounds of circumstances that trigger the principle of uti possidetis juris. Applying the rule would appear to dictate that Israel’s borders are those of the Palestine Mandate that preceded it, except where otherwise agreed upon by Israel and its relevant neighbours. […] DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 73 |
Thus, while considerable efforts had been invested in creating and advancing proposals for altering the borders of the Jewish State of Israel and a contemplated companion Arab State (two-State solution), no such efforts have so far, succeeded in being implemented. Thus, it would appear that uti possidetis juris dictates recognition of the borders of Israel as coinciding with the borders of the Mandate as of 1948, rather than the “1967 borders” unless and until the parties to the conflict agree otherwise. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 77 |
The borders, territorial sovereignty of both Israel and Palestine is another sensitive area the Court cannot simply presume to appreciate based on the one-sided narrative contained in the statements of the pro-Palestinian group of States. […]The questions ask the Court to presuppose that all the territories held during the Jordanian and Egyptian occupation within the 1949 Armistice Lines are automatically the sovereign territories of Palestine, and thus not of Israel. I am not sure that this issue is as simple as it appears. At the very least, the Court would need to examine and evaluate evidence concerning whether the 1949 Armistice Lines are “secure boundaries” within the meaning of Security Council resolutions 242 and 338. This, in turn, would require examination of the threats facing Israel emanating from the OPTs and the broader region. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 78 |
…The reference to the two resolutions [Security Council resolutions 242 (1967) and 338 (1973)], especially to resolution 242 (1967), is of particular relevance, since it mentions the “right to live in peace within secure and recognized boundaries free from threats or acts of force”. The term “recognized” (boundaries) should be interpreted as a reference to the territorial definition of the Palestinian State as resulting from the permanent status negotiations, while the term “secure” (boundaries) should be interpreted as a reference to the right to security of Israel and to the right to security of the Palestinian State. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 45 |
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The Advisory Opinion should have been explicit with regard to the statehood of Palestine. In United Nations resolutions it is customary to state that the settlement of the conflict lies in “the two-State solution” or “the two-State solution of Israel and Palestine, living side by side in peace and security within recognized borders” (see, for example, A/RES/78/781 and S/RES/2735 (2024)2). Yet the use of such language or of that adopted by the Court in its Opinion — namely “including [the] right [of the Palestinian people] to an independent and sovereign State, living side by side in peace with the State of Israel within secure and recognized borders for both States” (paragraph 283) — appears to cast doubt on the existence of Palestine as a State today, as if that State had to be created or formed in a future that is at the very least uncertain, further to negotiations aimed at a just and lasting peace in the Israeli-Palestinian conflict. This kind of language contributes to making the situation of one of the parties (Palestine) even more unequal in relation to the other (Israel), and from the outset distorts the parameters of the negotiations that will have to take place between them. However, just as the existence of Palestine should no longer be in question, nor should there be any further discussion about the legal personality of Palestine, as the State with which Israel will have to have amicable and neighbourly relations. SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 4 |
It could of course be argued that Palestine’s status as a State is implicit in the many resolutions of the General Assembly and the Security Council, since they recommend that the settlement of the conflict should be based on the existence of “two States”. Yet Israel has done and continues to do everything in its power to set aside the commitments it made under the 1947 Partition Plan — on which its declaration of independence was based — and the 1993 and 1995 Oslo Accords. The peace process cannot be the same when the occupying Power does not accept the legal personality of Palestine, claims that the Fourth Geneva Convention does not apply to the Occupied Palestinian Territory and, moreover, contests that the territory is occupied. SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 6 |
In this regard, it may be noted that the statehood of Palestine, whose existence was proclaimed on 15 November 1988 by the Palestine National Council based on resolution 181 (II) referred to above, is a reality for the vast majority of States, since it is acknowledged by the General Assembly in resolution 43/177 of 15 December 1988. In 2012, by resolution 67/19, the General Assembly granted Palestine the status of non-member observer State at the United Nations, while the Palestinian Authority, as the representative of the Palestinian people, has exercised its authority in certain parts of Palestinian territory since 1933. SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 7 |
The International Criminal Court (ICC), for its part, was invited by the Prosecutor to pronounce on the scope of its territorial jurisdiction in Palestine, further to Palestine’s decision of 22 May 2018 to defer the situation there to it, the Palestinian State having acceded to the Rome Statute on 2 January 2015. In its decision of 5 February 2021, Pre-Trial Chamber I considered that the ICC could exercise its criminal jurisdiction over the situation in question and found that its territorial jurisdiction extended to Gaza and the West Bank, including East Jerusalem. While it is true that the ICC was careful to note that its mandate did not permit it to pronounce on the statehood of Palestine, this decision nonetheless confirms that Palestine cannot be treated otherwise than as a State under international law. SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 11 |
However, the question that should have been developed by the Court is that of the consolidation and viability of the State of Palestine. The Advisory Opinion could have taken the current situation into account by recognizing that what is important now is to consolidate the State of Palestine and make it viable, including by settling through negotiations the question of boundaries, the sharing of natural resources, the return of refugees and reparation for wrongful acts committed by Israel, but without using ambiguous language that casts doubt over the existence, under international law, of the State of Palestine. SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 16 |
Moreover, we believe that the Opinion’s legally incorrect conclusions stem, to a large extent, from a misappreciation of the Oslo Accords signed between the representatives of Israel and Palestine. These Accords, along with the relevant resolutions of the Security Council, define the fundamental framework of a peaceful resolution of the conflict aiming at implementing the “two-State solution”, as explained below. SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 7 |
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Thus, the Court considers that the first part of question (b) posed by the General Assembly is not whether the policies and practices of Israel affect the legal status of the occupation as such. Rather, the Court is of the view that the scope of the first part of the second question concerns the manner in which Israel’s policies and practices affect the legal status of the occupation, and thereby the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory. This legality is to be determined under the rules and principles of general international law, including those of the Charter of the United Nations. ADVISORY OPINION Para. 250 |
Israel’s assertion of sovereignty over and its annexation of certain parts of the territory constitute, as shown above, a violation of the prohibition of the acquisition of territory by force. This violation has a direct impact on the legality of Israel’s continued presence, as an occupying Power, in the Occupied Palestinian Territory. The Court considers that Israel is not entitled to sovereignty over or to exercise sovereign powers in any part of the Occupied Palestinian Territory on account of its occupation. Nor can Israel’s security concerns override the principle of the prohibition of the acquisition of territory by force. ADVISORY OPINION Para. 254 |
The above-described effects of Israel’s policies and practices, resulting, inter alia, in the prolonged deprivation of the Palestinian people of its right to self-determination, constitute a breach of this fundamental right. This breach has a direct impact on the legality of Israel’s presence, as an occupying Power, in the Occupied Palestinian Territory. The Court is of the view that occupation cannot be used in such a manner as to leave indefinitely the occupied population in a state of suspension and uncertainty, denying them their right to self-determination while integrating parts of their territory into the occupying Power’s own territory. The Court considers that the existence of the Palestinian people’s right to self-determination cannot be subject to conditions on the part of the occupying Power, in view of its character as an inalienable right. ADVISORY OPINION Para. 257 |
The Court considers that the violations by Israel of the prohibition of the acquisition of territory by force and of the Palestinian people’s right to self-determination have a direct impact on the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory. 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. ADVISORY OPINION Para. 261 |
This illegality relates to the entirety of the Palestinian territory occupied by Israel in 1967. This is the territorial unit across which Israel has imposed policies and practices to fragment and frustrate the ability of the Palestinian people to exercise its right to self-determination, and over large swathes of which it has extended Israeli sovereignty in violation of international law. The entirety of the Occupied Palestinian Territory is also the territory in relation to which the Palestinian people should be able to exercise its right to self-determination, the integrity of which must be respected. ADVISORY OPINION Para. 262 |
… The Court observes that [the Oslo] Accords do not permit Israel to annex parts of the Occupied Palestinian Territory in order to meet its security needs. Nor do they authorize Israel to maintain a permanent presence in the Occupied Palestinian Territory for such security needs. ADVISORY OPINION Para. 263 |
The question posed by the General Assembly related to Israel’s “continued presence” and not to the circumstances in which its occupation of Palestinian territory occurred. Therefore, it was not for the Court to pronounce on the latter aspect, that is on the legality ab initio of the occupation. It is worth recalling, however, that the General Assembly has several times had occasion to affirm the illegality ab initio of Israel’s occupation… DECLARATION OF PRESIDENT SALAM Para. 35 |
Recalling the General Assembly’s finding on the illegality ab initio of Israel’s 1967 occupation of Palestinian territory, and its condemnation of the continuation of this occupation in violation of the United Nations Charter, can only reinforce the Court’s findings in this Opinion on the illegality of Israel’s continued presence in the Occupied Palestinian Territory. DECLARATION OF PRESIDENT SALAM Para. 36 |
The timeline proposed by most participants and what the Court has called “bring[ing] to an end as rapidly as possible the unlawful presence of Israel in the Occupied Palestinian Territory” is uncertain and impracticable. […] Moreover, this is clearly contrary to what Israel and Palestine previously agreed including under the Oslo Accords, or indeed what the Security Council sanctioned under resolutions 242 and 338. […] This is because Israel’s continued presence in the West Bank and Jerusalem (and recently in Gaza) is premised in part, on real security concerns; the disagreement between the parties over the borders of the two States, and the de facto reality on the ground. Those matters will render the immediate and unilateral withdrawal of Israel practically impossible. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 54 |
More importantly, the Court should have envisaged and recommended to the General Assembly, Security Council and third States, a process that incorporates the aforementioned international negotiation framework into “Israel’s withdrawal”. This could have been done, for example, by recommending that the timeline and the modus operandi of Israel’s withdrawal should be determined by bilateral or multilateral negotiations under the supervision of the United Nations. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 55 |
The General Assembly’s questions contained in resolution77/247 rest on certain assumptions, namely that: (1) all the territories held during the Jordanian and Egyptian occupation within the 1949 Armistice Lines are automatically the sovereign territories of Palestine, and thus not of Israel; (2) that Israel’s presence in the West Bank, the Gaza Strip and Jerusalem is without any legal justification; (3) Israel’s presence in these areas violates Palestinian rights; (4) this territory is “Palestinian”; and (5) that Israel’s policies and practices are annexational and necessarily “aimed at altering the demographic composition, character and status of . . . Jerusalem”. While the language of resolution 77/247 portrays these assumptions as having been established already, I am not sure that these issues are as straightforward as they appear. […] At the very least, the Court would need to examine and evaluate evidence concerning whether the 1949 Armistice Lines are “secure boundaries” within the meaning of Security Council resolutions 242 and 338 DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 68 |
Security Council practice does not provide any support for the view that “the notion of ‘illegal occupation’ may extend to occupation resulting from a lawful use of force”. Given the circumstances of Israel’s occupation of the territories in question in 1967, this should suffice. Although several General Assembly resolutions specifically addressing the Israeli occupation of Arab territories refer to the occupation as “illegal”, a review of the voting records shows that none of the Western democracies supported the resolutions asserting the illegality of the Israeli occupation. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 86 |
Historically, Israel assumed control over the disputed territories (i.e. the West Bank, the Gaza Strip and Jerusalem) in June 1967 in response to a clear and present threat, initiated by a group of Arab States, intent on annihilating the Jewish State. The legitimacy of Israel’s control of these territories at that time was generally uncontested as it was understood that it had done so within the framework of the legitimate exercise of its right of self-defence. While the international community did eventually develop a framework for the resolution of this war (UN Security Council resolutions 242 and 338, discussed above), it was not contended at that time that Israel’s control of these territories, pending such resolution, was illegal. Accordingly, it is difficult to ascertain at what point in history, and pending a negotiated settlement, when Israel’s presence in and control of the disputed territory, became an illegal occupation, as opined by the majority. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 87 |
State practice and opinio juris do not support the existence of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal on account of passage of time.[…] It is indisputable that Israel’s continued presence in the disputed territories is in large part due to genuine security concerns, as well as due to its own sovereignty claims to those territories, which can only be settled through negotiations. DISSENTING OPINION OF VICE-PRESIDENT SEBUTINDE Para. 88 |
The rules of customary law governing belligerent occupation had their origin in the European public law of the nineteenth century (jus publicum europaeum). At the time, those rules were not considered to be applicable to “colonial occupation” of non-European territories. This exemption of colonization from the jus in bello made it easier for European powers to realize their colonial ambitions and to conquer foreign lands without any legal limitations. SEPARATE OPINION OF JUDGE YUSUF Para. 2 |
It is only with the outlawing of colonialism following the gradual implementation of the United Nations Charter principle of equal rights and self-determination of peoples that the concept of “colonial occupation” was done away with in international law. This was done, among others, through the General Assembly resolutions codifying customary international law on decolonization (e.g. resolution 1514 (XV)) or elaborating on the fundamental principles of the United Nations Charter (e.g. resolution 2625). SEPARATE OPINION OF JUDGE YUSUF Para. 3 |
Thus, any belligerent occupation which substitutes an indefinite occupation for the legally sanctioned temporariness of belligerent occupation takes on the characteristics of colonial occupation or of conquest, both of which are contrary to the United Nations Charter and to contemporary principles of international law. SEPARATE OPINION OF JUDGE YUSUF Para. 4 |
…However, if occupation were to be allowed to continue indefinitely, thus gradually transforming itself into conquest or colonization, the legal tenets underlying the régime governing belligerent occupation, such as the protection of the interest of the occupied people and the return of sovereignty, would be rendered meaningless. SEPARATE OPINION OF JUDGE YUSUF Para. 8 |
In the case of the Occupied Palestinian Territory, Israel has maintained an occupation for over 57 years. The Security Council had already by 1980 reaffirmed “the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem” (Security Council resolution 476 (1980)). SEPARATE OPINION OF JUDGE YUSUF Para. 9 |
Israel’s excessively prolonged occupation has subjected the Palestinian people to a régime of indefinite alien subjugation and domination which is contrary to all rules and tenets of the law governing belligerent occupation. SEPARATE OPINION OF JUDGE YUSUF Para. 10 |
Israel’s excessively prolonged occupation, which has lasted for more than half a century, violates the basic tenet that belligerent occupation must be temporary, which is one of the main features distinguishing such occupation from colonial occupation and conquest. SEPARATE OPINION OF JUDGE YUSUF Para. 12 |
…In other words, the occupying Power must be able to show, at all times, that the maintenance of its prolonged occupation is due to military necessity, which has to be proportionate to legitimate military objectives. However, the self-defence rationale cannot be invoked against a potential or future threat that might emanate from the occupied territory. SEPARATE OPINION OF JUDGE YUSUF Para. 13 |
…It does not satisfy the criteria of necessity and proportionality for self-defence under Article 51 of the United Nations Charter. Moreover, the violation by Israel of the basic tenets of the law of occupation may point to an illegitimate continued use of force aimed at creating a perpetual situation of conflict to justify a prolonged occupation. SEPARATE OPINION OF JUDGE YUSUF Para. 14 |
…Indeed, the duration of a belligerent occupation is subject to an ad bellum test whereby, if the continued use of force can no longer be justified on grounds of self-defence against an imminent threat or use of force, it must be terminated. SEPARATE OPINION OF JUDGE YUSUF Para. 16 |
In light of the above, a prolonged and indefinite use of force against an occupied population constitutes a breach of the law on the use of force. It cannot be justified for more than half a century on military necessity. It goes beyond the specific defensive needs which might have originally justified it, if they ever existed, and turns it into alien subjugation and domination of a people which is contrary to the principles and purposes of the United Nations Charter. Thus, Israel’s prolonged occupation is also to be considered unlawful in view of its continued violation of the law on the use of force (jus ad bellum). SEPARATE OPINION OF JUDGE YUSUF Para. 17 |
Legality of the continued presence of Israel and legality of Israeli policies and practices may arguably be two different things, as stated by the Court, which are governed by separate rules (jus ad bellum and jus in bello). The questions that are placed before the Court for an advisory opinion are nevertheless intended to address the link between the two. In the Court’s view, when the unlawfulness of Israel’s policies and practices is decided, the subsequent question for the Court to answer should logically be the legality of the continued presence of Israel in the Occupied Palestinian Territory. That is to say, when certain acts are found internationally wrongful, in principle, they should not be permitted to continue to exist, which consequently may have a bearing on the lawfulness of the continued presence of Israel in the occupied territory. DECLARATION OF JUDGE XUE Para. 7 |
I fully subscribe to all the findings of the Court that the continued presence of Israel in the Occupied Palestinian Territory is illegal; that Israel is under an obligation to bring to an end its unlawful presence as rapidly as possible; that it must cease all new settlement activities immediately, evacuate all the settlers from the Occupied Palestinian Territory and make reparation for the damage caused to all the natural or legal persons concerned in the said Territory (see paragraph 285 (3), (4), (5) and (6)). SEPARATE OPINION OF JUDGE GÓMEZ ROBLEDO Para. 1 |
The Court goes too far, however, when it opines that Israel’s continued presence in the Occupied Palestinian Territory (in other words, Israel’s occupation) is unlawful as such. DECLARATION OF JUDGE TOMKA Para. 7 |
On the other hand, as the Court explains, the threat or use of force to seek to permanently acquire territory is prohibited — indeed, it is absolutely prohibited. The right of self-defence can never justify the acquisition of territory by force, including such use of force for the protection of perceived security interests. Such acts are strictly prohibited by the United Nations Charter and by customary international law. JOINT DECLARATION OF JUDGES NOLTE AND CLEVELAND Para. 7 |
Furthermore, through the construction of settlements and related infrastructure, severe restrictions on movement within and between the parts of the Occupied Palestinian Territory, and other policies and practices detailed by the Court, Israel has exploited its use of force as an occupying Power across the Occupied Palestinian Territory in a manner that seeks to permanently obstruct the exercise of the right of the Palestinian people to self-determination, particularly its right to territorial integrity and political independence, including the right to an independent and sovereign State. This suppression is part and parcel of Israel’s effort to permanently control the Occupied Palestinian Territory in violation of the jus ad bellum. JOINT DECLARATION OF JUDGES NOLTE AND CLEVELAND Para. 12 |
However, as we conclude above, and without prejudice to the exclusion from the Court’s analysis of conduct by Israel in the Gaza Strip in response to the 7 October 2023 attack (see paragraph 2 above), the comprehensive nature of Israel’s effort to transform the occupation of the Occupied Palestinian Territory into a form of annexation and permanent control, and the accompanying frustration of the Palestinian people’s right to self-determination, renders Israel’s presence in the Occupied Palestinian Territory unlawful… DECLARATION OF JUDGE CHARLESWORTH Para. 15 |
… Occupation consists in the exercise by a State of effective control over foreign territory in the place of the local government (Advisory Opinion, paragraph 90). The establishment and maintenance of such effective control is made possible because the occupying Power deploys, and remains capable of deploying, its military presence in the occupied territory: it is authority backed by armed force — whether actual or threatened force. In other words, an occupation involves, by its very nature, a continued threat or use of force in foreign territory. For this reason, the occupation must at all times be based on a ground for the use of force that is accepted under the jus ad bellum. DECLARATION OF JUDGE CHARLESWORTH Para. 15 |
The other side of this coin is that no other legal bases may be invoked for an occupation except for those that are available for the use of force under the jus ad bellum. The establishment of the occupation is a question of fact and, for this reason, it does not furnish the occupying Power with an additional legal basis for its maintenance beyond the established exceptions to the prohibition of the use of force. So, the existence of “security concerns” is not a legal ground for the maintenance of an occupation, nor indeed for its establishment, unless it can be translated into the currency of the accepted grounds for the use of force — for example, self-defence12. DECLARATION OF JUDGE CHARLESWORTH Para. 16 |
The submissions of some participants, including Israel, as well as some documents submitted under Practice Direction XII, allude to the security threats faced by Israel. It is regrettable that the Court was not furnished with adequate information about such threats. In any event, the concept of a security threat is broader than the concept of an armed attack16. So, while security threats to Israel may well be real, they alone do not suffice to justify the use of force, unless they amount to an armed attack (see paragraph 16 above). DECLARATION OF JUDGE CHARLESWORTH Para. 22 |
In this connection, it is worth recalling that, under customary international law, the population in the occupied territory does not owe allegiance to the occupying Power17, and that it is not precluded from using force in accordance with international law to resist the occupation18. Therefore, the fact that the population in the Occupied Palestinian Territory resorts to force to resist the occupation does not in itself justify the maintenance by Israel of its occupation. Further, the continuation of Israel’s effective control in the Occupied Palestinian Territory cannot be justified with reference to policies and practices that the Advisory Opinion considers to be in breach of international law — for instance, the maintenance of settlements. DECLARATION OF JUDGE CHARLESWORTH Para. 23 |
… In my view, three dimensions of Israel’s policies and practices illustrate that the maintenance by Israel of its occupation does not qualify as an act of self-defence: their intensity, their territorial scope and their temporal scope. DECLARATION OF JUDGE CHARLESWORTH Para. 25 |
…In my view, the Court also does not substantiate its conclusion that the unlawfulness of Israel’s presence, and the concomitant duty to withdraw, apply to the current situation in the Gaza Strip. SEPARATE OPINION OF JUDGE CLEVELAND Para. 7 |
Most notably, Gaza is absent from the key findings underlying the Court’s conclusion that Israel’s presence in the Occupied Palestinian Territory is unlawful. As the Court makes clear, it is the violation of the rules regarding the use of force, the jus ad bellum, that makes the presence of an occupying Power unlawful (Advisory Opinion, paras. 251 and 253; see also joint declaration of Judges Nolte and Cleveland, para. 7). Instrumentalizing an occupation to achieve the acquisition of territory, as Israel has done in East Jerusalem and the West Bank, renders such presence unlawful, irrespective of any self-defence justification a State may have (joint declaration of Judges Nolte and Cleveland, para. 8). SEPARATE OPINION OF JUDGE CLEVELAND Para. 14 |
None of the circumstances that lead the Court to conclude that Israel’s presence violates the rules regarding the use of force apply to the Gaza Strip, however. The Court does not find that Israel has expanded settlements and related infrastructure in the Gaza Strip. Indeed, Israel evacuated its settlements from Gaza in 2005 (Advisory Opinion, paras. 68 and 114). The Court does not suggest that Israel has annexed, or has sought to annex, the Gaza Strip. Nor does it contend that Israel otherwise violated the prohibition on the use of force between 2005 and 2023 with respect to Gaza. Thus, the core conclusion of the Court — that Israel’s policies and practices as an occupying Power violate the prohibition of the acquisition of territory by force, and thus exclude any justification of self-defence — is not applied to Gaza. SEPARATE OPINION OF JUDGE CLEVELAND Para. 15 |
As the Court’s own examination of the question whether the Gaza Strip remained occupied after 2005 demonstrates, the question whether an occupation exists requires a separate analysis of the circumstances with respect to a specific region or territory (Advisory Opinion, paras. 88-94; see also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, pp. 230-231, paras. 174-178). The legality of a State’s military presence in foreign territory likewise requires separate analyses if different circumstances prevail in different regions. It is not determined by a principle of territorial unity. Thus, a use of force that is lawful in one part of a territory may not be lawful in another. SEPARATE OPINION OF JUDGE CLEVELAND Para. 17 |
Accordingly, for the reasons above and those set forth in my joint declaration with Judge Nolte, I agree with the Court’s reply that “the State of Israel’s continued presence in the Occupied Palestinian Territory is unlawful” (Advisory Opinion, para. 285 (3)). This is correct with respect to East Jerusalem and the West Bank. However, I disagree that the Court established that this conclusion applies to the “entirety” of the Occupied Palestinian Territory (ibid., para. 262). The combination of the Court’s temporal limitation, and its failure to substantiate its jus ad bellum analysis with respect to Gaza, render this particular conclusion of the Court inapplicable to the current situation in the Gaza Strip. SEPARATE OPINION OF JUDGE CLEVELAND Para. 21 |
…What the Opinion illustrates however, is that, the seriousness and magnitude of Israel’s violations, as well as the nature of the rules breached, are such as to remove any pretences concerning the purpose of Israel’s presence transforming what may have been lawful presence based on occupation, to unlawful presence because such presence clearly amounts to a manifest violation of fundamental rules of international law prohibiting the acquisition of territory by force and the denial of the right of self-determination. DECLARATION OF JUDGE TLADI Para. 2 |
It is not just the fundamental character of the rules breached, or the egregiousness of the breaches, but also the fact that the breaches have continued, and indeed worsened, notwithstanding repeated calls for their cessation from multiple organs and entities that leads to the Court’s conclusion. The seriousness and magnitude of the violations, in effect, unrobe the emperor, leaving the truth bare; it reveals that there is nothing about the enterprise in question that justifies it as a temporary occupation. It is simply annexation, which breaches the right of self-determination of the Palestinian people and the prohibition of acquisition of territory by force. Put differently, from the facts presented to the Court, it is clear that Israel has used occupation as a front to cover up its breaches of some of the most fundamental principles of international law. This is what I understand by the Court’s reference to “sustained abuse by Israel of its position as an Occupying Power”1. Under these circumstances, any lingering suggestion that Israel’s unlawful conduct somehow does not affect the lawfulness of its presence would have the effect of shrouding Israel’s presence in the OPT with a cloak of legality something which I find simply incomprehensible. DECLARATION OF JUDGE TLADI Para. 3 |
Indeed, for the first time, the Court does not only declare that Israel’s practices in the territories it occupies are unlawful, in light of the obligations incumbent upon it as an occupying Power, but it also asserts that Israel’s very presence in the territories is unlawful and that it must therefore withdraw from them without any prior guarantee, particularly regarding its security, even though the respect of Israel’s right to security is one of the essential elements to consider in order to achieve a lasting peace. We are of the view that, by doing so, the Court has embarked on a legally wrong path and reached conclusions that are not legally correct. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 5 |
In short, the Opinion provides no convincing reason that would justify moving from the finding that Israel’s “practices and policies” in the Occupied Palestinian Territory are, in many instances, unlawful, to the conclusion that the very presence of Israel in the territories is unlawful. In our view, on this point, there is a missing link in the Opinion’s reasoning for reasons we will expand upon below. The Court chose to portray the Israeli-Palestinian conflict in a biased and one-sided manner, which disregards its legal and historical complexity. It gives little weight to the successive resolutions by which, from 1967 to present, the Security Council established and endorsed the legal framework for resolving the conflict based on the coexistence of two States and on the right of each of the two peoples to live in peace and security. When it does not ignore these resolutions, it makes a selective reading of them. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 6 |
In our view, the two situations previously examined by the Court are entirely different from the one at issue in the present case. In this case, we are dealing neither with a presence maintained by a mandatory Power in violation of a Security Council decision declaring this presence illegal after the General Assembly terminated the mandate, nor with a situation in which a colonial Power failed in its obligation to complete the decolonization process, nor with any other situation comparable to the above. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 9 |
[…]we do not see how we can go from the finding that the annexation policy pursued by the occupying Power is illegal to the assertion that the occupation itself is illegal. Yet that is exactly what the Opinion does, without any explanation of even minimal legal substantiation. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 22 |
The rules governing the conduct of an occupation and the obligations of the occupying Power, on the one hand, and those concerning the use of force and its consequences, on the other hand, constitute two distinct sets of rules. The question of whether and to what extent the occupying Power’s conduct complies with its obligations in the occupied territory, irrespective of the legality of the occupation, must be examined under the first set of rules. The question of the legality of the occupation itself must be examined under the above-mentioned second set of rules. The Opinion recalls this distinction (para. 251) without, however, drawing the correct conclusions. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 23 |
…The Opinion does not justify in any way, except through general and vague formulations, the abrupt transition from the finding that, by its conduct in the occupied territories, the occupying Power fails to comply with its obligations to the assertion of the illegality of the occupation itself. The illegality of the conduct of the occupying Power, even when it consists in seeking to annex the occupied territory, cannot deprive the occupant’s presence of its character: this presence is and remains an occupation under international law. As for the question of whether this presence is illegal, as we mentioned earlier and as the Opinion itself seems to acknowledge, it falls under the application of a different set of rules. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 25 |
First, the Opinion declares Israel’s continued presence illegal in the whole of the Occupied Palestinian Territory, including the Gaza Strip. Considering that this illegality is inferred — wrongly in our view — from the settlement and the annexation policies, there is an incomprehensible discrepancy between the cause and the consequences. […] The Opinion does not refer to any element that would demonstrate the existence of an intent or policy aiming to annex the Gaza Strip. Consequently, we believe that, besides the fact that the reasoning of the Opinion is flawed in its very principle, it is tainted by an internal inconsistency. The only justification provided by the Opinion in support of the conclusion that the occupation has become unlawful in the whole of the Occupied Palestinian Territory, including Gaza, is that this territory constitutes a territorial unit “the integrity of which must be respected” (para. 262). Such a justification is by no means convincing JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 29 |
Obviously, it is not impossible that, even if an occupation is initially lawful, it ceases to be so at a certain point in time. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 34 |
However, the mere passage of time does not suffice to render an occupation illegal, regardless of its duration. It is evident that an occupation is, by nature, a temporary situation that is destined to end at one point or another. However, international law does not lay out any time-limit beyond which an occupation would become ipso facto illegal. […] Clearly, a duration of 57 years is exceptionally long, with few historical parallels. But that is not enough: this duration must be considered in light of the exceptionally complex history and nature of the Israeli-Palestinian conflict and the many successive attempts at resolution, the failure of which cannot be attributed to a single party. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 35 |
But, most importantly, the 1993/1995 Oslo Accords formally adopted, between Israel and Palestine, the package “right to self-determination — right to security”, based on the Security Council resolutions 242 (1967) and 338 (1973), with direct impact on the conditions for ending the occupation of the Occupied Palestinian Territory, as well as the framework for negotiations ultimately leading to the “two-State solution” — which again will signify the end of the occupation. Indeed, the occupation being temporary by nature, the occupying Power is under an obligation to end the occupation as soon as it is no longer necessary to ensure its security. The Opinion failed to articulate this reasoning. JOINT OPINION OF JUDGES TOMKA, ABRAHAM, AURESCU Para. 44 |
…The prohibition of the acquisition of territory by force precludes any forcible acquisition of territory, regardless of whether that force is unlawful or otherwise permitted under international law. Israel’s policies and practices amount to the annexation of large parts of the Occupied Palestinian Territory and thus violate the prohibition of the acquisition of territory by force (para. 179). SEPARATE OPINION OF JUDGE IWASAWA Para. 15 |
Based on the finding that Israel’s policies and practices violate the prohibition of the acquisition of territory by force and impede the right to self-determination, the Court concludes that Israel’s continued presence in the Occupied Palestinian Territory is illegal (Advisory Opinion, paras. 261-262 and point (3) of the operative clause). In some parts of its reasoning, the Court curiously states that it is the effects of Israel’s policies and practices which constitute a breach of international law (paras. 256-257). The Court should have avoided such construction and stated straightforwardly that it is Israel’s policies and practices which violate the two aforementioned fundamental rules of international law, and that consequently Israel’s continued presence in the Occupied Palestinian Territory is illegal. In any case, the conclusion that Israel’s continued presence in the Occupied Palestinian Territory is illegal is not predicated on a finding that Israel violated its obligations under the law of occupation. SEPARATE OPINION OF JUDGE IWASAWA Para. 17 |
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The Court’s jurisdiction to give an advisory opinion is based on Article 65, paragraph 1, of its Statute, which provides that “[t]he Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request” Jurisdiction Para. 23 |
The Court notes that pursuant to Article 96, paragraph 1, of the Charter, the General Assembly “may request the International Court of Justice to give an advisory opinion on any legal question”. Jurisdiction Para. 24 |
In the present proceedings, the General Assembly put two questions to the Court (see paragraph 1 above). These questions relate first to the legal consequences arising from certain policies and practices of Israel as an occupying Power in a situation of belligerent occupation since 1967. Secondly, they relate to how such policies and practices affect the legal status of the occupation in light of certain rules and principles of international law and to the legal consequences which arise from this status. The Court considers that these questions are legal questions. Jurisdiction Para. 27 |
In light of the above, the Court concludes that the request has been made in accordance with the provisions of the Charter and of the Statute of the Court and therefore that it has jurisdiction to render the requested opinion. Jurisdiction Para. 28 |
… the subject-matter of the General Assembly’s request, although it involves Israel and Palestine, concerns the responsibilities of the United Nations and wider questions of international peace and security, as well as certain obligations erga omnes of States. Jurisdiction Para. 33 |
Thus, the Court considers that the first part of question (b) posed by the General Assembly is not whether the policies and practices of Israel affect the legal status of the occupation as such. Rather, the Court is of the view that the scope of the first part of the second question concerns the manner in which Israel’s policies and practices affect the legal status of the occupation, and thereby the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory. This legality is to be determined under the rules and principles of general international law, including those of the Charter of the United Nations. Unlawful Presence Para. 250 |
Israel’s assertion of sovereignty over and its annexation of certain parts of the territory constitute, as shown above, a violation of the prohibition of the acquisition of territory by force. This violation has a direct impact on the legality of Israel’s continued presence, as an occupying Power, in the Occupied Palestinian Territory. The Court considers that Israel is not entitled to sovereignty over or to exercise sovereign powers in any part of the Occupied Palestinian Territory on account of its occupation. Nor can Israel’s security concerns override the principle of the prohibition of the acquisition of territory by force. Unlawful Presence Para. 254 |
The above-described effects of Israel’s policies and practices, resulting, inter alia, in the prolonged deprivation of the Palestinian people of its right to self-determination, constitute a breach of this fundamental right. This breach has a direct impact on the legality of Israel’s presence, as an occupying Power, in the Occupied Palestinian Territory. The Court is of the view that occupation cannot be used in such a manner as to leave indefinitely the occupied population in a state of suspension and uncertainty, denying them their right to self-determination while integrating parts of their territory into the occupying Power’s own territory. The Court considers that the existence of the Palestinian people’s right to self-determination cannot be subject to conditions on the part of the occupying Power, in view of its character as an inalienable right. Unlawful Presence Para. 257 |
The Court considers that the violations by Israel of the prohibition of the acquisition of territory by force and of the Palestinian people’s right to self-determination have a direct impact on the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory. 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. Unlawful Presence Para. 261 |
This illegality relates to the entirety of the Palestinian territory occupied by Israel in 1967. This is the territorial unit across which Israel has imposed policies and practices to fragment and frustrate the ability of the Palestinian people to exercise its right to self-determination, and over large swathes of which it has extended Israeli sovereignty in violation of international law. The entirety of the Occupied Palestinian Territory is also the territory in relation to which the Palestinian people should be able to exercise its right to self-determination, the integrity of which must be respected. Unlawful Presence Para. 262 |
… The Court observes that [the Oslo] Accords do not permit Israel to annex parts of the Occupied Palestinian Territory in order to meet its security needs. Nor do they authorize Israel to maintain a permanent presence in the Occupied Palestinian Territory for such security needs. Unlawful Presence Para. 263 |
… To the extent that such concerns pertain to the security of the settlers and the settlements, it is the Court’s view that the protection of the settlers and settlements, the presence of which in the Occupied Palestinian Territory is contrary to international law, cannot be invoked as a ground to justify measures that treat Palestinians differently… Settlements Para. 205 |
… In the Court’s view, punitive demolition of property amounts to punishment of other persons living in or using this property for acts that they have not committed, and it is therefore contrary to Article 33 of the Fourth Geneva Convention. The Court also recalls that the occupying Power is authorized to repeal or suspend penal laws in force in the occupied territory in so far as they constitute, inter alia, “an obstacle to the application of [that] Convention” (second paragraph of Article 64 of the Fourth Geneva Convention). This provision implies that, even if Palestine Defence (Emergency) Regulation 119 remains in force as a matter of domestic law, it may not be relied on by Israel to act in a manner that is inconsistent with its international obligations under the Fourth Geneva Convention, and in particular its obligation to refrain from imposing collective punishment. Settlements Para. 212 |
Israel’s practice of punitive demolitions of Palestinian property, being contrary to its obligations under international humanitarian law, does not serve a legitimate public aim. The Court considers that, because this practice treats Palestinians differently without justification, it amounts to prohibited discrimination under Articles 2, paragraph 1, and 26 of the ICCPR, Article 2, paragraph 2, of the ICESCR, and Article 2 of CERD. Settlements Para. 213 |
…the rate of demolitions has steadily increased. The United Nations High Commissioner for Human Rights has reported the demolition of more than 7,000 Palestinian-owned structures between 2012 and 2022, mostly in Area C and East Jerusalem. Among these structures, more than 1,600 were structures providing humanitarian aid, more than 600 were water, sanitation and hygiene buildings, and more than 20 were schools educating approximately 1,300 children (“Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan: Report of the United Nations High Commissioner for Human Rights”, UN doc. A/HRC/52/76 (15 March 2023), paras. 25-26). Settlements Para. 217 |
In light of the above, the Court considers that Israel’s planning policy in relation to the issuance of building permits, and in particular its practice of property demolition for lack of a building permit, which treats Palestinians differently from settlers without justification, amounts to prohibited discrimination, in violation of Articles 2, paragraph 1, and 26 of the ICCPR, Article 2, paragraph 2, of the ICESCR, and Article 2 of CERD. Settlements Para. 222 |
United Nations reports indicate that Israel’s security forces engage in the destruction of the roads and other infrastructure used by Palestinians in the West Bank… Such activities further exacerbate the differentiation in the treatment of Palestinians with reference to their freedom of movement. Apartheid Para. 204 |
For the reasons above, the Court concludes that a broad array of legislation adopted and measures taken by Israel in its capacity as an occupying Power treat Palestinians differently on grounds specified by international law. As the Court has noted, this differentiation of treatment cannot be justified with reference to reasonable and objective criteria nor to a legitimate public aim (see paragraphs 196, 205, 213 and 222). Accordingly, the Court is of the view that the régime of comprehensive restrictions imposed by Israel on Palestinians in the Occupied Palestinian Territory constitutes systemic discrimination based on, inter alia, race, religion or ethnic origin, in violation Apartheid Para. 223 |
The Court observes that Israel’s policies and practices in the West Bank and East Jerusalem implement a separation between the Palestinian population and the settlers transferred by Israel to the territory. Apartheid Para. 226 |
This separation is first and foremost physical: Israel’s settlement policy furthers the fragmentation of the West Bank and East Jerusalem, and the encirclement of Palestinian communities into enclaves. As a result of discriminatory policies and practices such as the imposition of a residence permit system and the use of distinct road networks, which the Court has discussed above, Palestinian communities remain physically isolated from each other and separated from the communities of settlers (see, for example, paragraphs 200 and 219). Apartheid Para. 227 |
The separation between the settler and Palestinian communities is also juridical. As a result of the partial extension of Israeli law to the West Bank and East Jerusalem, settlers and Palestinians are subject to distinct legal systems in the Occupied Palestinian Territory (see paragraphs 135-137 above). To the extent that Israeli law applies to Palestinians, it imposes on them restrictions, such as the requirement for a permit to reside in East Jerusalem, from which settlers are exempt. In addition, Israel’s legislation and measures that have been applicable for decades treat Palestinians differently from settlers in a wide range of fields of individual and social activity in the West Bank and East Jerusalem (see paragraphs 192-222 above). Apartheid Para. 228 |
… With respect to the question of the potential justification of Israel’s differentiation in treatment, the Court has taken note of Israel’s security concerns, as identified by some participants in the proceedings, that might justify restrictions on movement. To the extent that such concerns pertain to the security of the settlers and the settlements, it is the Court’s view that the protection of the settlers and settlements, the presence of which in the Occupied Palestinian Territory is contrary to international law, cannot be invoked as a ground to justify measures that treat Palestinians differently. Moreover, the Court considers that Israel’s measures imposing restrictions on all Palestinians solely on account of their Palestinian identity are disproportionate to any legitimate public aim and cannot be justified with reference to security. Security Para. 205 |
…The Court considers that, in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law. Self-Determination Para. 233 |
First, the Court recalls that the right to territorial integrity is recognized under customary international law as “a corollary of the right to self-determination” (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 134, para. 160). In the context of Palestine, the General Assembly and the Human Rights Council have called for “the respect for and preservation of the territorial unity, contiguity and integrity of all of the Occupied Palestinian Territory, including East Jerusalem” (for example, General Assembly resolution 77/208 of 15 December 2022, ninth preambular paragraph; Human Rights Council resolution 49/28 of 1 April 2022, para. 5). The Court considers that Israel, as the occupying Power, has the obligation not to impede the Palestinian people from exercising its right to self-determination, including its right to an independent and sovereign State, over the entirety of the Occupied Palestinian Territory. Self-Determination Para. 237 |
The Court has already found that Israel’s settlement policy has fragmented the West Bank and severed East Jerusalem from it (see paragraph 164 above). The sprawl of settlements in the West Bank, coupled with the expansion of a road network to which Palestinians have limited or no access, has had the effect of encircling Palestinian communities in enclaves in the West Bank (see paragraphs 200 and 227 above). Moreover, Israel’s annexation of large parts of the Occupied Palestinian Territory violates the integrity of the Occupied Palestinian Territory, as an essential element of the Palestinian people’s right to self-determination. Self-Determination Para. 238 |
Second, by virtue of the right to self-determination, a people is protected against acts aimed at dispersing the population and undermining its integrity as a people… The Court has also found above that Israel’s settlement policy as a whole, its annexation of territory and its related legislation and measures that discriminate against Palestinians in the occupied Palestinian Territory contribute to the departure of Palestinians from certain areas of the Occupied Palestinian Territory, notably from Area C and East Jerusalem. Moreover, Israel’s strict restrictions on movement between the Gaza Strip, the West Bank and East Jerusalem divide the Palestinian populations living in different parts of the Occupied Palestinian Territory (see paragraphs 202 and 206 above). In the Court’s view, these policies and practices undermine the integrity of the Palestinian people in the Occupied Palestinian Territory, significantly impeding the exercise of its right to self-determination. Self-Determination Para. 239 |
A third element of the right to self-determination is the right to exercise permanent sovereignty over natural resources, which is a principle of customary international law (see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 251, para. 244)… In depriving the Palestinian people of itsenjoyment of the natural resources in the Occupied Palestinian Territory for decades, Israel has impeded the exercise of its right to self-determination. Self-Determination Para. 240 |
Fourth, a key element of the right to self-determination is the right of a people freely to determine its political status and to pursue its economic, social and cultural development. This right is reflected in resolutions 1514 (XV) and 2625 (XXV), and it is enshrined in common Article 1 of the ICCPR and the ICESCR (see paragraph 233 above). The Court has already discussed the impact of Israel’s policies and practices on some aspects of the economic, social and cultural life of Palestinians, in particular by virtue of the impairment of their human rights. The dependence of the West Bank, East Jerusalem, and especially of the Gaza Strip, on Israel for the provision of basic goods and services impairs the enjoyment of fundamental human rights, in particular the right to self-determination (“Economic and social repercussions of the Israeli occupation on the living conditions of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab population in the occupied Syrian Golan”, UN doc. A/78/127-E/2023/95 (30 June 2023)). Self-Determination Para. 241 |
… The Court thus considers that Israel’s policies and practices obstruct the right of the Palestinian people freely to determine its political status and to pursue its economic, social and cultural development. Self-Determination Para. 242 |
The prolonged character of Israel’s unlawful policies and practices aggravates their violation of the right of the Palestinian people to self-determination. As a consequence of Israel’s policies and practices, which span decades, the Palestinian people has been deprived of its right to self-determination over a long period, and further prolongation of these policies and practices undermines the exercise of this right in the future. For these reasons, the Court is of the view that Israel’s unlawful policies and practices are in breach of Israel’s obligation to respect the right of the Palestinian people to self-determination. The manner in which these policies affect the legal status of the occupation, and thereby the legality of the continued presence of Israel in the Occupied Palestinian Territory, is discussed below (see paragraphs 255-257). Self-Determination Para. 243 |
With regard to the Court’s finding that Israel’s continued presence in the Occupied Palestinian Territory is illegal, the Court considers that such presence constitutes a wrongful act entailing its international responsibility. It is a wrongful act of a continuing character which has been brought about by Israel’s violations, through its policies and practices, of the prohibition on the acquisition of territory by force and the right to self-determination of the Palestinian people. Consequently, Israel has an obligation to bring an end to its presence in the Occupied Palestinian Territory as rapidly as possible… Consequences for Israel Para. 267 |
The Court further observes that, with respect to the policies and practices of Israel referred to in question (a) which were found to be unlawful, Israel has an obligation to put an end to those unlawful acts. In this respect, Israel must immediately cease all new settlement activity. Israel also has an obligation to repeal all legislation and measures creating or maintaining the unlawful situation, including those which discriminate against the Palestinian people in the Occupied Palestinian Territory, as well as all measures aimed at modifying the demographic composition of any parts of the territory. Consequences for Israel Para. 268 |
Israel is also under an obligation to provide full reparation for the damage caused by its internationally wrongful acts to all natural or legal persons concerned (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 198, para. 152). The Court recalls that the essential principle is that “reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 47). Reparation includes restitution, compensation and/or satisfaction. Reparations Para. 269 |
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. Reparations Para. 270 |
In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons, and populations, where that may be the case, having suffered any form of material damage as a result of Israel’s wrongful acts under the occupation. Reparations Para. 271 |
… the subject-matter of the General Assembly’s request, although it involves Israel and Palestine, concerns the responsibilities of the United Nations and wider questions of international peace and security, as well as certain obligations erga omnes of States. Consequences for the UN Para. 33 |
… In view of the character and importance of the obligations erga omnes involved in the illegal presence of Israel in the Occupied Palestinian Territory, the obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory and the obligation to distinguish in their dealings with Israel between the territory of Israel and the Occupied Palestinian Territory apply also to the United Nations. Consequences for the UN Para. 280 |
Finally, the Court is of the view that 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. Therefore, 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. Consequences for the UN Para. 281 |
The Court considers it important to stress as it did in its Wall Advisory Opinion,“the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli-Palestinian conflict, which continues to pose a threat to international peace and security, to a speedy conclusion, thereby establishing a just and lasting peace in the region” (I.C.J. Reports 2004 (I), . 200, para. 161). Consequences for the UN Para. 282 |
With regard to the right to self-determination, the Court considers that, while it is for the General Assembly and the Security Council to pronounce on the modalities required … [for] the full realization of the right of the Palestinian people to self-determination, all States must co-operate with the United Nations to put those modalities into effect. Consequences for Third States Para. 275 |
Taking note of the resolutions of the Security Council and General Assembly, the Court is of the view that Member States are under an obligation not to recognize any changes in the physical character or demographic composition, institutional structure or status of the territory occupied by Israel on 5 June 1967, including East Jerusalem, except as agreed by the parties through negotiations and to distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territory occupied since 1967. The Court considers that the duty of distinguishing dealings with Israel between its own territory and the Occupied Palestinian Territory encompasses, inter alia, the obligation to abstain from treaty relations with Israel in all cases in which it purports to act on behalf of the Occupied Palestinian Territory or a part thereof on matters concerning the Occupied Palestinian Territory or a part of its territory; to abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory or parts thereof which may entrench its unlawful presence in the territory; to abstain, in the establishment and maintenance of diplomatic missions in Israel, from any recognition of its illegal presence in the Occupied Palestinian Territory; and to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory (see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 55-56, paras. 122, 125-127). Consequences for Third States Para. 278 |
Moreover, the Court considers that, in view of the character and importance of the rights and obligations involved, 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. In addition, all the States parties to the Fourth Geneva Convention have the obligation, while respecting the Charter of the United Nations and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention. Consequences for Third States Para. 279 |
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As for “apartheid”, clarifying its constituent parts is indisputably important in my view, given the seriousness of practices of apartheid, whose prohibition is established in both treaty law and customary international law, and the fact that the crime of apartheid is recognized as a crime against humanity whose prohibition is a jus cogens norm that creates rights and obligations erga omnes. Apartheid Para. 6 |
In my opinion, the Court could have used evolutive treaty interpretation to clarify the constituent elements of this crime. Apartheid Para. 7 |
Following the entry into force of CERD on 4 January 1969, two international instruments defined and established apartheid as a crime against humanity: the International Convention on the Suppression and Punishment of the Crime of Apartheid (hereinafter the “Apartheid Convention”) and the Rome Statute of the International Criminal Court (hereinafter the “Rome Statute”). Israel is not party to either of these instruments. Apartheid Para. 8 |
Nevertheless, the treaty practice of the 124 States parties to the Rome Statute and the 110 States parties to the Apartheid Convention cannot be overlooked. In my view, it clearly constitutes practice that is relevent for defining the elements of apartheid as set out in CERD. I would add that the States parties to the Apartheid Convention – which entered into force on 18 July 1976, seven years after CERD – were mindful of the pre-existing obligation prohibiting practices of racial segregation and apartheid set forth in CERD, this being expressly recalled in the preamble of the Apartheid Convention. Moreover, as regards the definition contained in the Rome Statute, although this was developed in the context of individual criminal responsibility, I see no reason to conclude that apartheid should be defined differently in relation to the international responsibility of States. Apartheid Para. 9 |
Three elements are thus present in both [The Apartheid Convention and the Rome Statute] definitions, namely: (i) the material element constituted by the commission of inhuman acts; (ii) the contextual element of an institutionalized régime of systematic oppression and domination by one racial group over another; and (iii) the intentional element constituted by the intent to maintain the aforementioned régime. Apartheid Para. 10 |
Moreover, Israel’s settlement policy seeks to fragment the Palestinian people and territory by isolating towns and villages from each other (paras. 164 and 238 of the Opinion), which some participants characterized as “strategic fragmentation”. This clearly constitutes racial segregation. The Court further observed in Part V of the Opinion that there is also juridical separation, as well as myriad breaches of the rights of Palestinians for the benefit of the Israeli settlements established in the occupied territory and the State of Israel itself. In short, the Court found that Israel has violated Article 3 of CERD, but did not consider it necessary in this instance to define the concepts of racial segregation and apartheid. Apartheid Para. 11 |
Moreover, although I consider Israel’s security needs to be legitimate, this does not justify either policies and measures of segregation or apartheid. On the contrary, requiring respect for international law, and its peremptory norms in particular, as well as for human rights and international humanitarian law is in the ultimate interest of Israel. The prolonged occupation, creeping settlement and annexation of occupied lands, and the discriminatory legislation and measures that accompany them, undermine Palestine’s — equally legitimate — right to security. Only respect for international law can bring peace to the two peoples and lasting security for Israel and Palestine. Justice, peace and security cannot wait any longer. Security Para. 13 |
In any event, a régime of racial segregation or apartheid makes the fulfilment of the Palestinian people’s right to self-determination impossible. As duly noted by some participants, the discriminatory nature of these policies and practices suppresses the equality, identity and dignity at the heart of self-determination. Self-Determination Para. 12 |
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… Occupation consists in the exercise by a State of effective control over foreign territory in the place of the local government (Advisory Opinion, paragraph 90). The establishment and maintenance of such effective control is made possible because the occupying Power deploys, and remains capable of deploying, its military presence in the occupied territory: it is authority backed by armed force — whether actual or threatened force. In other words, an occupation involves, by its very nature, a continued threat or use of force in foreign territory. For this reason, the occupation must at all times be based on a ground for the use of force that is accepted under the jus ad bellum. Unlawful Presence Para. 15 |
The other side of this coin is that no other legal bases may be invoked for an occupation except for those that are available for the use of force under the jus ad bellum. The establishment of the occupation is a question of fact and, for this reason, it does not furnish the occupying Power with an additional legal basis for its maintenance beyond the established exceptions to the prohibition of the use of force. So, the existence of “security concerns” is not a legal ground for the maintenance of an occupation, nor indeed for its establishment, unless it can be translated into the currency of the accepted grounds for the use of force — for example, self-defence12. Unlawful Presence Para. 16 |
The submissions of some participants, including Israel, as well as some documents submitted under Practice Direction XII, allude to the security threats faced by Israel. It is regrettable that the Court was not furnished with adequate information about such threats. In any event, the concept of a security threat is broader than the concept of an armed attack16. So, while security threats to Israel may well be real, they alone do not suffice to justify the use of force, unless they amount to an armed attack (see paragraph 16 above). Unlawful Presence Para. 22 |
In this connection, it is worth recalling that, under customary international law, the population in the occupied territory does not owe allegiance to the occupying Power17, and that it is not precluded from using force in accordance with international law to resist the occupation18. Therefore, the fact that the population in the Occupied Palestinian Territory resorts to force to resist the occupation does not in itself justify the maintenance by Israel of its occupation. Further, the continuation of Israel’s effective control in the Occupied Palestinian Territory cannot be justified with reference to policies and practices that the Advisory Opinion considers to be in breach of international law — for instance, the maintenance of settlements. Unlawful Presence Para. 23 |
… In my view, three dimensions of Israel’s policies and practices illustrate that the maintenance by Israel of its occupation does not qualify as an act of self-defence: their intensity, their territorial scope and their temporal scope. Unlawful Presence Para. 25 |
Material before the Court indicates the existence of discrimination on multiple and potentially intersecting grounds. For example, when discussing Israel’s settlement policy, the Court notes that Israel’s control of water resources in the West Bank prioritizes water supply to Israeli settlements, at the expense of Palestinian communities (Advisory Opinion, paragraphs 128-129). It does not make the additional observation, however, that water shortages in some Palestinian communities have a particular effect on Palestinian women and girls, because they have additional needs of water for hygiene and privacy. Moreover, they bear responsibility for securing water for household use. The Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel has further noted that the decline of the agricultural sector as a result of Israel’s policies has disproportionately affected employment opportunities for Palestinian women. The Commission has concluded overall that Israel’s policies and practices in the Occupied Palestinian Territory have had a pervasive discriminatory effect on Palestinian women by exacerbating their economic and social vulnerability. Apartheid Para. 6 |
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…In my view, the Court also does not substantiate its conclusion that the unlawfulness of Israel’s presence, and the concomitant duty to withdraw, apply to the current situation in the Gaza Strip. Unlawful Presence Para. 7 |
Most notably, Gaza is absent from the key findings underlying the Court’s conclusion that Israel’s presence in the Occupied Palestinian Territory is unlawful. As the Court makes clear, it is the violation of the rules regarding the use of force, the jus ad bellum, that makes the presence of an occupying Power unlawful (Advisory Opinion, paras. 251 and 253; see also joint declaration of Judges Nolte and Cleveland, para. 7). Instrumentalizing an occupation to achieve the acquisition of territory, as Israel has done in East Jerusalem and the West Bank, renders such presence unlawful, irrespective of any self-defence justification a State may have (joint declaration of Judges Nolte and Cleveland, para. 8). Unlawful Presence Para. 14 |
None of the circumstances that lead the Court to conclude that Israel’s presence violates the rules regarding the use of force apply to the Gaza Strip, however. The Court does not find that Israel has expanded settlements and related infrastructure in the Gaza Strip. Indeed, Israel evacuated its settlements from Gaza in 2005 (Advisory Opinion, paras. 68 and 114). The Court does not suggest that Israel has annexed, or has sought to annex, the Gaza Strip. Nor does it contend that Israel otherwise violated the prohibition on the use of force between 2005 and 2023 with respect to Gaza. Thus, the core conclusion of the Court — that Israel’s policies and practices as an occupying Power violate the prohibition of the acquisition of territory by force, and thus exclude any justification of self-defence — is not applied to Gaza. Unlawful Presence Para. 15 |
As the Court’s own examination of the question whether the Gaza Strip remained occupied after 2005 demonstrates, the question whether an occupation exists requires a separate analysis of the circumstances with respect to a specific region or territory (Advisory Opinion, paras. 88-94; see also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, pp. 230-231, paras. 174-178). The legality of a State’s military presence in foreign territory likewise requires separate analyses if different circumstances prevail in different regions. It is not determined by a principle of territorial unity. Thus, a use of force that is lawful in one part of a territory may not be lawful in another. Unlawful Presence Para. 17 |
Accordingly, for the reasons above and those set forth in my joint declaration with Judge Nolte, I agree with the Court’s reply that “the State of Israel’s continued presence in the Occupied Palestinian Territory is unlawful” (Advisory Opinion, para. 285 (3)). This is correct with respect to East Jerusalem and the West Bank. However, I disagree that the Court established that this conclusion applies to the “entirety” of the Occupied Palestinian Territory (ibid., para. 262). The combination of the Court’s temporal limitation, and its failure to substantiate its jus ad bellum analysis with respect to Gaza, render this particular conclusion of the Court inapplicable to the current situation in the Gaza Strip. Unlawful Presence Para. 21 |
First, as the Court notes, Israel’s settlement policy in Gaza prior to 2005 “was not substantially different” from the current policy in East Jerusalem and the West Bank (Advisory Opinion, para. 114). For the reasons stated by the Court, the transfer of the population of an occupying Power into an occupied territory is prohibited under Article 49 of the Fourth Geneva Convention (ibid., paras. 115-119). Thus, any future attempt to resurrect such a settlement policy with respect to the Gaza Strip would constitute a “flagrant violation” of this prohibition (UNSC resolution 465 (1980) of 1 March 1980; see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 183-184, para. 120). Settlements Para. 23 |
It is perhaps unfortunate that the General Assembly framed part of question (a) in terms of “annexation”. International law, in the form of Article 2, paragraph 4, of the UN Charter and of custom, prohibits the “acquisition of territory” through the threat or use of force. The critical question, then, is what constitutes an unlawful “acquisition” of territory that could place the conduct of an occupying Power in violation of this fundamental norm. “Annexation” in this sense can be (mis)understood as involving the assertion of formal sovereignty over a territory or the incorporation of foreign territory into a State’s own territory — neither of which is required for a violation of the prohibition of the acquisition of territory by force. The Court at times appears to equate annexation with incorporation, which could suggest an unnecessary restriction on this prohibition (see e.g. paragraph 158 of the Advisory Opinion, defining annexation as “integration into the territory of the occupying Power”; and paragraph 170, stating that “Israel has also taken steps to incorporate the West Bank into its own territory”). Annexation Para. 28 |
While many participants in these proceedings contended that at least part of the Occupied Palestinian Territory has been annexed, few addressed the meaning of this concept. Japan, however, elaborated on the forcible acquisition of territory in its submissions, stating that the principle consists of “the establishment of control over the territory through forcible measures”, coupled with “the intention to appropriate that territory permanently”1. Japan further maintained that this prohibition applies to “any unilateral attempts to change the peacefully established status of territories by force or coercion”. Annexation Para. 29 |
The Court’s predominant reasoning is consistent with this approach. The Court makes clear that the essence of the prohibition of the acquisition of territory by force involves the use of force to control a foreign territory, with the intent of exercising permanent control. Thus, the Court observes that annexation “presupposes the intent of the occupying Power to exercise permanent control over the occupied territory” (Advisory Opinion, para. 158; see also paragraphs 159 and 161). It does not restrict “annexation” to the assertion of formal sovereignty or a situation of incorporation. Accordingly, the Court concludes that Israel’s policies and practices in large parts of the Occupied Palestinian Territory, notably East Jerusalem and in the West Bank, “are designed to remain in place indefinitely and to create irreversible effects on the ground” (ibid., para. 173). In other words, they are intended to be permanent. Such conduct violates the jus ad bellum prohibition of the acquisition of territory by force. Annexation Para. 30 |
It finds that “[a]s a consequence of Israel’s policies and practices, which span decades, the Palestinian people has been deprived of its right to self-determination” (Advisory Opinion, para. 243), a conclusion I share. However, the right to self-determination has not been fully realized for the people of either Palestine or Israel. The people of Israel, too, have the right to self-determination, including the right to political independence, to territorial integrity, and to live in peace and security within recognized borders. Violent attacks against the State of Israel and its people, and the refusal of other States to recognize the legitimate existence of the State of Israel — including a number of the States participating in these advisory proceedings — also violate this right. The right of the peoples of both Palestine and Israel to live in peace within secure and recognized borders is an essential element to securing regional peace (UNSC resolution 242 (1967); UNSC resolution 338 (1973); UNSC resolution 1515 (2003); UNSC resolution 2334 (2016)). Self-Determination Para. 2 |
Regrettably, the Court makes no meaningful effort to grapple with the assaults on the right to self-determination that have confronted the people of Israel since the State’s inception. In addition to addressing the ongoing obstacles to the right of self-determination of the Palestinian people – which are myriad and egregious – I believe that, in rendering this Opinion, the Court had a responsibility to acknowledge, and to take into greater account, the ongoing threats to Israel and its people. Self-Determination Para. 3 |
The Court nevertheless attempts, in the space of a single paragraph, to bring Gaza within its conclusion that Israel’s presence in the “entirety” of the Occupied Palestinian Territory is unlawful, based on the integrity of the Occupied Palestinian Territory (Advisory Opinion, para. 262). Self-Determination Para. 16 |
However, this solitary paragraph does not explain how a violation of the right to self-determination — in the absence of a violation of the prohibition of acquiring territory by force — renders an occupying Power’s presence unlawful. Nor does it explain how such a violation can somehow override any legitimate exercise of the right to self-defence that Israel may have with respect to the Gaza Strip. Self-Determination Para. 17 |
Finally, I believe the Court’s Opinion makes clear that it would violate the jus ad bellum for Israel to use its position as an occupying Power to seek to exercise permanent control over the Occupied Palestinian Territory as a whole, including the Gaza Strip. Such use of force would also further compound the violations of the Palestinian people’s right to self-determination. Self-Determination Para. 26 |
The Court declares, for the first time, that the right to self-determination is a peremptory norm of international law. In so doing, it states that “in cases of foreign occupation such as the present case the right to self-determination constitutes a peremptory norm” (Advisory Opinion, para. 233). Unfortunately, the Court provides no explanation of what it means by “cases of foreign occupation such as the present case”, or how this formulation relates to the concept of a peremptory norm of international law. Self-Determination Para. 31 |
In my view, in referring to “foreign occupation such as the present case”, the Court was focusing on the features of Israel’s occupation that are potentially analogous to a situation of foreign domination. These features include a situation of prolonged occupation characterized by annexation through permanent control and the accompanying suppression of self-determination, over a period of decades. Any foreign occupation, by definition, however lawful, will likely involve the temporary denial of aspects of the right to self-determination. Therefore, by using the formulation “foreign occupation such as the present case”, the Court intended to make clear that it is the particular features of Israel’s prolonged occupation that analogize it to a situation of alien subjugation and foreign domination which implicate the right to self-determination as a peremptory norm. Self-Determination Para. 33 |
In other words, the Court did not need the pronouncement that self-determination constitutes a peremptory norm of international law for its analysis and did not adopt it for that reason. The Court made the pronouncement because it believed it to be legally correct. Self-Determination Para. 35 |
Finally, it is regrettable that the General Assembly’s request focused only on the conduct of Israel in relation to Palestine, as opposed to the legal consequences arising from the policies and practices of all relevant actors in the Israel-Palestine situation. Israel and its population have also suffered grievous harms to their rights under international law in the period covered by the request. Resolution of the Israel-Palestine situation will not be achieved until the harms committed by all relevant actors are acknowledged and addressed. Consequences for Israel Para. 5 |
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…The prohibition of the acquisition of territory by force precludes any forcible acquisition of territory, regardless of whether that force is unlawful or otherwise permitted under international law. Israel’s policies and practices amount to the annexation of large parts of the Occupied Palestinian Territory and thus violate the prohibition of the acquisition of territory by force (para. 179). Unlawful Presence Para. 15 |
Based on the finding that Israel’s policies and practices violate the prohibition of the acquisition of territory by force and impede the right to self-determination, the Court concludes that Israel’s continued presence in the Occupied Palestinian Territory is illegal (Advisory Opinion, paras. 261-262 and point (3) of the operative clause). In some parts of its reasoning, the Court curiously states that it is the effects of Israel’s policies and practices which constitute a breach of international law (paras. 256-257). The Court should have avoided such construction and stated straightforwardly that it is Israel’s policies and practices which violate the two aforementioned fundamental rules of international law, and that consequently Israel’s continued presence in the Occupied Palestinian Territory is illegal. In any case, the conclusion that Israel’s continued presence in the Occupied Palestinian Territory is illegal is not predicated on a finding that Israel violated its obligations under the law of occupation. Unlawful Presence Para. 17 |
The extraterritorial application of Israeli domestic law to the West Bank has created two different legal systems. While settlers are subject to Israeli criminal law, Palestinians living in the West Bank are governed by military law and prosecuted in military courts. Differential treatment between Palestinians and settlers is also found in the national health insurance law, taxation law, election law, and in the enforcement of traffic laws. There exists an institutional and legislative separation in the planning and building régime as well. The dual legal system is supported by the 2018 Basic Law, which stipulates that “[t]he State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and consolidation” (para. 7). Apartheid Para. 10 |
The dual legal system introduced by Israel in the West Bank treats Palestinians and settlers differently based on, inter alia, race, religion, or ethnic origin, and amounts to discrimination. The United Nations High Commissioner for Human Rights has affirmed that “[t]he extraterritorial application of Israeli domestic law to settlers creates two different legal systems in the same territory, on the sole basis of nationality or origin. Such differentiated application is discriminatory”. Similarly, the Independent International Commission of Inquiry on the Occupied Palestinian Territory concluded that “[t]his dual legal system provides greater enjoyment of human rights for Israelis than for Palestinians and is therefore discriminatory”. Apartheid Para. 11 |
The questions of the General Assembly concern Israel’s “discriminatory legislation and measures” under international human rights law and not apartheid as an international crime. The Court explains that Article 3 of CERD refers to “two particularly severe forms of racial discrimination: racial segregation and apartheid” (Advisory Opinion, para. 225) and concludes that “Israel’s legislation and measures constitute a breach of Article 3 of CERD” (para. 229). In its reasoning, the Court emphasizes the “separation” implemented by Israel in the West Bank between the Palestinian population and settlers (paras. 226-229), without qualifying it as apartheid Apartheid Para. 13 |
The determination of whether the obligation to respect the right to self-determination has been violated is complex in situations of occupation. Occupation in all its forms, by its very nature, effects the exercise of the right to self-determination of the people living in the occupied territory. Thus, occupation itself cannot constitute a violation of the obligation to respect the right to self-determination. In the present Opinion, the Court analyses whether Israel’s policies and practices impede the right of the Palestinian people to self-determination … and concludes that Israel’s policies and practices are in breach of Israel’s obligation to respect the right of the Palestinian people to self-determination (para. 243). Self-Determination Para. 16 |
Israel has an obligation to bring to an end its continued presence in the Occupied Palestinian Territory “as rapidly as possible” (Advisory Opinion, para. 267 and point (4) of the operative clause). Given its legitimate security concerns, Israel is not under an obligation to withdraw all its armed forces from the Occupied Palestinian Territory immediately and unconditionally, particularly from the Gaza Strip in view of the ongoing hostilities since 7 October 2023. The Security Council and the General Assembly have reiterated the importance of the principle of land for peace and the two-State solution. For example, Security Council resolution 242 (1967) linked the end of Israel’s illegal presence in the Occupied Palestinian Territory and the full realization of the Palestinian people’s right to self-determination with Israel’s right to live in peace within secure and recognized borders free from threats or acts of force (para. 283). The precise modalities for ending Israel’s illegal presence should follow from arrangements arrived at based on these principles under the supervision of the General Assembly and the Security Council (see para. 281 and point (9) of the operative clause). Self-Determination Para. 20 |
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I have doubts that the ambition of Israel to annex the West Bank, as demonstrated by its radicalized more recent settlement policy and practice, necessarily implies that it now intends to institutionalize the — until then temporary and at least partly security-oriented — legal régime for the Palestinian inhabitants of the West Bank in relation to the settlers and the settlements, and thus to make it permanent. The intention to annex a territory and the decision to institutionalize a particular racially oppressive régime do not necessarily go together. In the present case they may well go together, but it is also possible that Israel does not intend the way in which it exercises its occupation of the West Bank, as regards the relationship between the Palestinians and the settlers, to become permanent and institutionalized. I think that there is insufficient information to draw a definite conclusion. Annexation Para. 14 |
The Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD (at paragraph 229) while leaving open the question whether it considers Israel’s policies and practices to be a form of racial segregation or apartheid. In the absence of any discussion of the subjective element of apartheid, which is a core element of the prohibition, the Opinion cannot be understood as finding that the prohibition of apartheid has indeed been violated by Israel. Also, I am not convinced that the Court has sufficient information before it to conclude that Israel’s policies and practices amount either to apartheid or to racial segregation. Apartheid Para. 8 |
… third, the relevant policy and practice must be motivated by a subjective element (mens rea) which not only requires the intentional commission of inhumane acts of a certain gravity, nature and scale, but also that the purpose of these acts is the establishment and maintenance of an institutionalized régime of domination and oppression (dolus specialis) Apartheid Para. 11 |
I have serious doubts that the information before the Court is sufficient to conclude that the subjective element of apartheid is present in the situation of the Occupied Palestinian Territory. Given the exceptional gravity of a violation of the prohibition of apartheid, a peremptory rule of general international law, claims against a State involving charges of apartheid “must be proved by evidence that is fully conclusive.” The Court should only find that a State has the required dolus specialis of apartheid when the “only reasonable inference” from its conduct is an intention to maintain an institutionalized régime to systematically oppress and dominate a racial or ethnic group, in Israel’s case the Palestinians relative to Israeli Jews. This dolus specialis should only be considered as being established where other inferences are clearly implausible. Apartheid Para. 12 |
I doubt that the only reasonable inference which can be drawn from Israel’s policies and practices in the Occupied Palestinian Territories is that of an intention to maintain an institutionalized régime to systematically oppress and dominate the Palestinians relative to Israeli Jews. Apartheid Para. 13 |
I have doubts that the ambition of Israel to annex the West Bank, as demonstrated by its radicalized more recent settlement policy and practice, necessarily implies that it now intends to institutionalize the — until then temporary and at least partly security-oriented — legal régime for the Palestinian inhabitants of the West Bank in relation to the settlers and the settlements, and thus to make it permanent. The intention to annex a territory and the decision to institutionalize a particular racially oppressive régime do not necessarily go together. In the present case they may well go together, but it is also possible that Israel does not intend the way in which it exercises its occupation of the West Bank, as regards the relationship between the Palestinians and the settlers, to become permanent and institutionalized. I think that there is insufficient information to draw a definite conclusion. Apartheid Para. 14 |
Thus, the law of occupation itself envisages a difference in treatment between the nationals of the occupying Power and the protected population in the occupied territory. This is not to say that Israel’s segregative practices are justified under the law of occupation. However, given the overlap between the law of occupation and CERD in the present case, a conclusion that the segregation in the present case runs along racial or ethnic lines requires a particularly thorough analysis of the facts. Apartheid Para. 18 |
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… the narrowness of the discretion to decline to give an advisory opinion is acknowledged by the Court itself in numerous cases, where it has observed that the Court’s answer to a request for an advisory opinion “represents its participation in the activities of the Organization, and, in principle, should not be refused”5. This is particularly the case where the request emanates from the other organs of the United Nations, i.e. the General Assembly or the Security Council. If a request should, in principle, not be refused, and if a refusal requires the existence of a compelling reason (the threshold for which is, in fact, so high that this Court has never found a reason compelling enough to refuse a request for an advisory opinion) then does the Court really have discretion in this matter? Jurisdiction Para. 8 |
For the Court to refuse to respond to a request from the General Assembly or the Security Council when it has jurisdiction to do so would, in my view, amount to the Court second-guessing the decisions of the other principal organs in a way that would be legally problematic. Jurisdiction Para. 9 |
… the Israeli-Palestinian conflict cannot be seen as a bilateral dispute for a much more normative reason … the international legal system has moved beyond the era of pure bilateralism … how can a case where some of the most fundamental norms of international law, in particula norms of jus cogens, are at stake be a bilateral dispute. I find it morally unthinkable that it could even be contemplated that what is happening in Palestine is a purely bilateral dispute. It is not… Jurisdiction Para. 11 |
…What the Opinion illustrates however, is that, the seriousness and magnitude of Israel’s violations, as well as the nature of the rules breached, are such as to remove any pretences concerning the purpose of Israel’s presence transforming what may have been lawful presence based on occupation, to unlawful presence because such presence clearly amounts to a manifest violation of fundamental rules of international law prohibiting the acquisition of territory by force and the denial of the right of self-determination. Unlawful Presence Para. 2 |
It is not just the fundamental character of the rules breached, or the egregiousness of the breaches, but also the fact that the breaches have continued, and indeed worsened, notwithstanding repeated calls for their cessation from multiple organs and entities that leads to the Court’s conclusion. The seriousness and magnitude of the violations, in effect, unrobe the emperor, leaving the truth bare; it reveals that there is nothing about the enterprise in question that justifies it as a temporary occupation. It is simply annexation, which breaches the right of self-determination of the Palestinian people and the prohibition of acquisition of territory by force. Put differently, from the facts presented to the Court, it is clear that Israel has used occupation as a front to cover up its breaches of some of the most fundamental principles of international law. This is what I understand by the Court’s reference to “sustained abuse by Israel of its position as an Occupying Power”1. Under these circumstances, any lingering suggestion that Israel’s unlawful conduct somehow does not affect the lawfulness of its presence would have the effect of shrouding Israel’s presence in the OPT with a cloak of legality something which I find simply incomprehensible. Unlawful Presence Para. 3 |
The Court was able to find a breach of Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, i.e. the prohibition of segregation and apartheid. I interpret this finding to be an acceptance that the policies and practices of Israel constitute a breach of the prohibition of apartheid, which itself is a peremptory norm of international law. 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. But recall, the term apartheid was coined by that régime not as a pejorative term, but as a positive concept to explain the benevolence of its policies as separate development, and moreover, at a time when many other States still practised racial discrimination themselves in some form or another. Once the term attained a negative meaning, and international condemnation of racism swelled, no other State would self-describe its policies as apartheid. Apartheid Para. 36 |
… Some may argue that the Israeli practices and policies do not rise to the level of apartheid because there is insufficient evidence that the third element is met, i.e. there is insufficient evidence that the enumerated inhuman acts were committed for the purposes of establishing and maintaining domination by one racial group. To this I would make only three brief points. Apartheid Para. 39 |
First, in interpreting the phrase, it is important to recall that the Apartheid Convention definition is prefaced by the statement “which shall include policies and practices of racial segregation and discrimination as practiced in southern Africa . . .”. As explained above, the policies and practices of Israel in the Occupied Palestinian Territory are, in many respects, alike to those of apartheid South Africa. The second point is that it would be incredibly rigid to insist on direct evidence of an intention to dominate. As the International Criminal Tribunal for the former Yugoslavia observed in the context of genocide, intention and purpose can be “inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group”57. I find it difficult to see how anyone can look at the policies and practices that have been detailed before the Court and find that, when taken together, the systemic character of these segregationist acts, including the explicit, legislated policy that self-determination in Palestine is reserved for Jewish persons only, do not reveal the purpose of dominating the Palestinians. As a third and final point, it should be recalled that it is not necessary for the purpose of establishing “the purpose of domination” for domination to be the sole, or even dominant reason, for the discriminatory measures. Apartheid South Africa, it will be recalled, promoted its policy not solely for the purpose of domination, but to ensure what it termed “equal but separate development”. Apartheid Para. 40 |
I accept that security concerns are very important, and that Israel faces threats to its security, from amongst others Hamas, as the events of 7 October 2023 illustrate. Yet, as a first general point, when addressing security concerns, it should be recalled that all States, and not just Israel, have security interests. This includes Palestine. Often, when the “security concerns” claim is made, it is as if only Israel has security concerns or that somehow, Israel’s security concerns override those of Palestine’s. The second general point to make is that security interests as such, no matter how serious or legitimate, cannot override rules of international law, a point made by the Court. Indeed, save where called for by a specific rule, security concerns cannot even serve as a balance against rules of international law and certainly not against peremptory norms. Thus, the notion that the Palestinian right of self-determination must be balanced with, or is even subject to, Israeli security concerns is incongruous as a matter of international law. In fact, such arguments are not only incongruous, they also are dangerous. Allow me to illustrate by means of a “hypothetical” scenario: Imagine that one State believes, legitimately perhaps, that another State joining a defence alliance is a threat to its security interests. Can such a State decide to use military force to prevent the other State from joining the defence alliance? If so, we are moving dangerously into the Athenian paradigm where “the strong do what they can and the weak suffer what they must”. Security Para. 44 |
Two particular legal bases addressing Israel’s security concerns may be referred to. These are self-defence and the United Nations Security Council framework for addressing the Middle East conflict. In relation to the situation in the Occupied Palestinian Territory, the self-defence argument is multifaceted and raises different issues depending on the context in which it is raised. It may be raised in the context of Israeli occupation as such, i.e. the occupation itself is an act of self-defence (or was established pursuant to an act of self-defence), or it may be raised in the context of particular practice, policies or acts, such as the construction of the wall or various military operations launched against the Palestinian territory. In whatever context it is raised, it is important to emphasize that self-defence is subject to strict requirements, including that of an armed attack from a State, proportionality and necessity. Moreover, given the overall situation of occupation, the self-defence argument (in the context of particular acts or practices, such as military operations) will run up against the Court’s finding in the Wall Advisory Opinion to the effect that self-defence does not apply (or “has no relevance”) because Israel “exercises control in the Occupied Palestinian Territory and that . . . the threat which it regards as justifying [forcible measures] originates within, and not outside, that territory’61. For present purposes, I can say only that any one of these provides insurmountable hurdles for anyone seeking to justify Israeli practices and policies as acts of self-defence. Security Para. 48 |
… The argument, as I understand it, is that the framework established by the Security Council requires that the right of self-determination of the Palestinians cannot be addressed without also addressing the security concerns of Israel… The basis for this contention is to be found in the provisions of Security Council 242 (and subsequent resolutions which affirm resolution 242). … Security Para. 49 |
The rules of interpretation of resolutions of political organs of international organizations are, in general, with the necessary adjustments, similar to the rules for interpreting treaties. … First, it bears mentioning that there is nothing in the language of the resolution that suggests that at issue is the security of Israel. The resolution speaks of “political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force”. Let’s not forget, Palestine has none of these! It’s political independence is severely compromised; the occupation by Israel, which has now morphed into annexation, ensures that it does not have recognized borders; it is decidedly not free from threats, so that its security concerns remain unachieved. Security Para. 51 |
Second, and more importantly, there is nothing in the ordinary meaning of the words of Resolution 242 that suggests that the two elements are interdependent … Security Para. 52 |
Finally, this reading of the resolution, i.e. that the two elements are not forever and inextricably tied at the hips, is clear from the fact that the Security Council itself has on occasion addressed the question of occupation without, at the same time addressing the second element. In Resolution 476, for example, the Council reaffirmed “the overriding necessity for ending the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem” without referring at all, not even in the preamble, to the second element. Security Para. 53 |
In conclusion, security concerns apply to all States. All States have a legitimate interest in peaceful existence without threats to their security. How States promote and protect their security, however, is subject to international law and security interests cannot override legal rules, and certainly not the most fundamental rules having the character of jus cogens. Security Para. 54 |
… The main basis for this finding is that Israeli presence in the Occupied Palestinian Territory constitutes a violation of the Palestinian right of self-determination, in addition to constituting a breach of the prohibition on the acquisition of territory by force. The Court reaffirms its previous descriptions of the right of self-determination as “one of the essential principles of contemporary international law” and that the obligation to respect this right is owed erga omnes. These are not new, and the Court had previously used these descriptions. What is new is the Court’s explicit recognition of the right of self-determination as a peremptory norm of international law. At paragraph 233 the Court states that it “considers that, in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law”. The qualifier “in cases of foreign occupation such as the present case” is rather unclear, but I understand it to mean that the element of the right of self-determination which is implicated in the present case, i.e. the right of the Palestinian people to not have their right of self-determination impeded by the ongoing foreign occupation by Israel, is assuredly a peremptory norm of international law. This statement would be without prejudice to the peremptory status of other elements of the right of self-determination (which were not at issue in this case). In the same way, stating that the (narrower) prohibition of aggression is a peremptory norm does not necessarily mean that the broader prohibition on the use of force is itself not peremptory. Self-Determination Para. 14 |
There may be one of several explanations for the Court’s historical reluctance to explicitly acknowledge the peremptory status of norms, and in particular of the right of self-determination. First, it might be that describing self-determination as a peremptory norm was seen by the Court as unnecessary, or to use the language of Judge Abraham’s separate opinion in Belgium v. Senegal in respect of the peremptory norm of prohibition of torture, a “mere obiter dictum, which the Court could have omitted without depriving its reasoning of any vital element”20. In Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (hereinafter “Chagos”) too, apparently, the Court believed that to describe self-determination as a peremptory norm was unnecessary for the purposes of answering the question posed by the General Assembly21. The second possibility is that the Court simply did not accept until now that self-determination was a norm of jus cogens. Indeed, in the aftermath of Chagos it was argued by some that the Court’s approach was evidence that it did not believe self-determination to be a peremptory norm22. Neither of these reasons are remotely convincing and I wish to address each in turn. Self-Determination Para. 17 |
This view reflects a perfectly reasonable interpretation of the Oslo Accords. But, at the same time, it is obviously an incomplete response to a rather complex question. In my view, a proper judicial response would have required the Court to consider the legal implications of the argument raised by these States and therefore the relationship between the right of self-determination and the Oslo Accords. Such a response would have to be based on Article 53 of the Vienna Convention on the Law of Treaties. In other words, even if the Oslo Accords justified the current presence of Israel on the Occupied Palestinian Territory, the Accords would, if they are in breach of the peremptory norm of self-determination, be invalid. Having laid out this basic proposition, the Court could then state that at any rate, the Oslo Accords ought to be interpreted in such a way as to render them consistent with the right of self-determination55, which leads to the interpretation of the Accords offered by the Court. But to engage in this legal reasoning, the Court would need to acknowledge (yet again) the peremptory character of the right of self-determination (and the other norms in question). Unfortunately, because of its residual hesitancy to acknowledge peremptory norms, the Court skips several steps and jumps to conclusions which, without more, are devoid of legal reasoning. Self-Determination Para. 35 |
… I believe this recital to be a legal consequence of the breaches in question and that the United Nations organs have a duty to “consider” what further action is required, particularly in the event that Israel does not comply with the legal consequences identified in the Opinion. The requirement for the United Nations to consider further measures follows from the Court’s emphasis on the “necessity for the United Nations . . . to redouble its efforts” in the context of the Middle East peace process63. … I understand this “should” to mean, is obliged to. Consequences for the UN Para. 57 |
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. Consequences for the UN Para. 60 |
… Third, and more importantly, the consequneces for third States for the breach of the right of self-determination identified by the Court in the current Advisory Opinion, i.e. the duty to co-operate to bring to an end Israeli presence in the Occupied Palestinian Territory (32), the duty not to recognize situations arising from Israel’s presence and the duty not to render assistance in the maintenance of such situations, do not, in my view, flow from the breach of any rule of international law, but rather from the breach of peremptory norms (33). Consequences for Third States Para. 20 |
If there is one aspect of the Opinion that gives me cause for pause it is that having identified the right of self-determination as a peremptory norm, the Court adopts an ambivalent approach to the consequence of its finding. For instance, in paragraph 274, when preparing to identify the consequences of Israel’s presence on the Occupied Palestinian Territory for third States, the Court “observes that the obligations violated by Israel include certain obligations erga omnes.” This language might suggest that the obligations for third States — what we might refer to as the Article 41 consequences for shorthand — flow not from the peremptory status of the right of self-determination but rather from the erga omnes character of the obligations breached. Consequences for Third States Para. 28 |
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The Court goes too far, however, when it opines that Israel’s continued presence in the Occupied Palestinian Territory (in other words, Israel’s occupation) is unlawful as such. Unlawful Presence Para. 7 |
Since then, Israel has entrenched its policy to expand the settlements in the West Bank, despite its commitment to refrain from such activities in the Oslo II Accord. I fully agree with the Court’s view that such settlements are illegal and are to be viewed as an effort at annexing parts of the West Bank, following the de jure annexation of East Jerusalem in 1980. Annexation Para. 4 |
In my view, the Court does not clearly distinguish between the nullity, which affects the act in question, depriving it of its validity in international law, and the responsibility that affects the State author of the act which is null. The act in question does not affect the legal régime of the occupation and Israel remains bound by its obligations under international law as an occupying Power. Consequences for Israel Para. 6 |
[…] For the same reasons, I also support the view that the United Nations, and especially the Security Council and General Assembly, should consider the modalities for bringing to an end as rapidly as possible the presence of the State of Israel in the Occupied Palestinian Territory. This can be done only when security is guaranteed for both States. I believe that achieving the above goal is long overdue and that all relevant actors should redouble their efforts to that effect. This remains the unfulfilled historical responsibility of the United Nations. Consequences for the UN Para. 8 |
Although I do not share the Court’s view that Israel’s continued presence in the Occupied Palestinian Territory is unlawful, I agree that all States are under an obligation to not recognize the situation arising from its presence in that territory and to refrain from rendering aid or assistance to Israel in maintaining that situation. The main reason for my position is that I believe that States should not assist Israel in its aim to annex a major part of the Occupied Palestinian Territory and to treat it as its own territory. Consequences for Third States Para. 8 |
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Legality of the continued presence of Israel and legality of Israeli policies and practices may arguably be two different things, as stated by the Court, which are governed by separate rules (jus ad bellum and jus in bello). The questions that are placed before the Court for an advisory opinion are nevertheless intended to address the link between the two. In the Court’s view, when the unlawfulness of Israel’s policies and practices is decided, the subsequent question for the Court to answer should logically be the legality of the continued presence of Israel in the Occupied Palestinian Territory. That is to say, when certain acts are found internationally wrongful, in principle, they should not be permitted to continue to exist, which consequently may have a bearing on the lawfulness of the continued presence of Israel in the occupied territory. Unlawful Presence Para. 7 |
Some participants argue that Israel has the right to maintain its presence in the Occupied Palestinian Territory, in particular for its security needs. I agree with the Court that Israel’s policies and practices, as they have presented themselves, are not justified by its security concerns. Israel’s security cannot be guaranteed through its unilateral and destructive policies and measures against the Palestinian people. Security Para. 9 |
Under contemporary international law, it is well established that the principle of self-determination applies to all peoples under colonialism, alien subjugation, foreign domination and exploitation (Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly resolution 1514 (XV), adopted on 14 December 1960; Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV), adopted on 24 October 1970). This principle has obtained a peremptory character in international law with regard to peoples in those contexts. Foreign occupation, by definition, is a type of foreign domination. By virtue of the principle of prohibition of acquisition of territory by force, it must be temporary in nature and terminated as soon as possible. Self-Determination Para. 3 |
Given the ample evidence as demonstrated in the Opinion, Israel’s prolonged occupation of the Palestinian territory, coupled with its policies and practices adopted therein, has severely impeded the Palestinian people from exercising its right to self-determination. […] The effects of Israel’s occupation in that regard have little difference from those under colonial rule, which has been firmly condemned under international law (see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 95). Self-Determination Para. 4 |
As the Court points out in the Opinion, the ultimate realization of the right of the Palestinian people to self-determination lies in the final settlement of the conflict between the State of Palestine and the State of Israel. Before that goal is reached, in any event, Israel must immediately cease its internationally wrongful acts and observe its international obligations in the Occupied Palestinian Territory. Consequences for Israel Para. 10 |
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The rules of customary law governing belligerent occupation had their origin in the European public law of the nineteenth century (jus publicum europaeum). At the time, those rules were not considered to be applicable to “colonial occupation” of non-European territories. This exemption of colonization from the jus in bello made it easier for European powers to realize their colonial ambitions and to conquer foreign lands without any legal limitations. Unlawful Presence Para. 2 |
It is only with the outlawing of colonialism following the gradual implementation of the United Nations Charter principle of equal rights and self-determination of peoples that the concept of “colonial occupation” was done away with in international law. This was done, among others, through the General Assembly resolutions codifying customary international law on decolonization (e.g. resolution 1514 (XV)) or elaborating on the fundamental principles of the United Nations Charter (e.g. resolution 2625). Unlawful Presence Para. 3 |
Thus, any belligerent occupation which substitutes an indefinite occupation for the legally sanctioned temporariness of belligerent occupation takes on the characteristics of colonial occupation or of conquest, both of which are contrary to the United Nations Charter and to contemporary principles of international law. Unlawful Presence Para. 4 |
…However, if occupation were to be allowed to continue indefinitely, thus gradually transforming itself into conquest or colonization, the legal tenets underlying the régime governing belligerent occupation, such as the protection of the interest of the occupied people and the return of sovereignty, would be rendered meaningless. Unlawful Presence Para. 8 |
In the case of the Occupied Palestinian Territory, Israel has maintained an occupation for over 57 years. The Security Council had already by 1980 reaffirmed “the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem” (Security Council resolution 476 (1980)). Unlawful Presence Para. 9 |
Israel’s excessively prolonged occupation has subjected the Palestinian people to a régime of indefinite alien subjugation and domination which is contrary to all rules and tenets of the law governing belligerent occupation. Unlawful Presence Para. 10 |
Israel’s excessively prolonged occupation, which has lasted for more than half a century, violates the basic tenet that belligerent occupation must be temporary, which is one of the main features distinguishing such occupation from colonial occupation and conquest. Unlawful Presence Para. 12 |
…In other words, the occupying Power must be able to show, at all times, that the maintenance of its prolonged occupation is due to military necessity, which has to be proportionate to legitimate military objectives. However, the self-defence rationale cannot be invoked against a potential or future threat that might emanate from the occupied territory. Unlawful Presence Para. 13 |
…It does not satisfy the criteria of necessity and proportionality for self-defence under Article 51 of the United Nations Charter. Moreover, the violation by Israel of the basic tenets of the law of occupation may point to an illegitimate continued use of force aimed at creating a perpetual situation of conflict to justify a prolonged occupation. Unlawful Presence Para. 14 |
…Indeed, the duration of a belligerent occupation is subject to an ad bellum test whereby, if the continued use of force can no longer be justified on grounds of self-defence against an imminent threat or use of force, it must be terminated. Unlawful Presence Para. 16 |
In light of the above, a prolonged and indefinite use of force against an occupied population constitutes a breach of the law on the use of force. It cannot be justified for more than half a century on military necessity. It goes beyond the specific defensive needs which might have originally justified it, if they ever existed, and turns it into alien subjugation and domination of a people which is contrary to the principles and purposes of the United Nations Charter. Thus, Israel’s prolonged occupation is also to be considered unlawful in view of its continued violation of the law on the use of force (jus ad bellum). Unlawful Presence Para. 17 |
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On the other hand, as the Court explains, the threat or use of force to seek to permanently acquire territory is prohibited — indeed, it is absolutely prohibited. The right of self-defence can never justify the acquisition of territory by force, including such use of force for the protection of perceived security interests. Such acts are strictly prohibited by the United Nations Charter and by customary international law. Unlawful Presence Para. 7 |
Furthermore, through the construction of settlements and related infrastructure, severe restrictions on movement within and between the parts of the Occupied Palestinian Territory, and other policies and practices detailed by the Court, Israel has exploited its use of force as an occupying Power across the Occupied Palestinian Territory in a manner that seeks to permanently obstruct the exercise of the right of the Palestinian people to self-determination, particularly its right to territorial integrity and political independence, including the right to an independent and sovereign State. This suppression is part and parcel of Israel’s effort to permanently control the Occupied Palestinian Territory in violation of the jus ad bellum. Unlawful Presence Para. 12 |
However, as we conclude above, and without prejudice to the exclusion from the Court’s analysis of conduct by Israel in the Gaza Strip in response to the 7 October 2023 attack (see paragraph 2 above), the comprehensive nature of Israel’s effort to transform the occupation of the Occupied Palestinian Territory into a form of annexation and permanent control, and the accompanying frustration of the Palestinian people’s right to self-determination, renders Israel’s presence in the Occupied Palestinian Territory unlawful… Unlawful Presence Para. 15 |
Furthermore, through the construction of settlements and related infrastructure, severe restrictions on movement within and between the parts of the Occupied Palestinian Territory, and other policies and practices detailed by the Court, Israel has exploited its use of force as an occupying Power across the Occupied Palestinian Territory in a manner that seeks to permanently obstruct the exercise of the right of the Palestinian people to self-determination, particularly its right to territorial integrity and political independence, including the right to an independent and sovereign State. This suppression is part and parcel of Israel’s effort to permanently control the Occupied Palestinian Territory in violation of the jus ad bellum. Self-Determination Para. 12 |
… Accordingly, the breaches of the prohibition of the acquisition of territory by force and the right of the Palestinian people to self-determination entail the duty to end this unlawfulness, which gives rise, inter alia, to the duty to withdraw from the Occupied Palestinian Territory under the rules of State responsibility. We therefore agree with this aspect of the Court’s conclusion. Consequences for Israel Para. 15 |
The Court concludes that Israel must end its presence “as rapidly as possible”. Notably, the Court did not adopt the formulation urged by some participants that Israel must end the occupation “immediately, totally and unconditionally”. The Court’s wording recognizes that there are significant practical issues that would make an “immediate” withdrawal and cessation of some aspects of Israel’s presence not possible. Moreover, Israel’s duty to end its presence does not mean that its duty to withdraw from the Occupied Palestinian Territory must necessarily be fulfilled in the same way, or at the same time, with respect to every part of that territory. While the duty to withdraw “as rapidly as possible” applies as a general matter, this duty nevertheless may be implemented differently depending on the situation that prevails in a particular part of the occupied territory. Consequences for Israel Para. 16 |
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…One can infer from this that the situation in Gaza after 7 October 2023 is not included in the scope of the questions put to the Court. It is therefore appropriately that the Opinion refrains from taking any position on the events that have occurred in Gaza after 7 October 2023. Moreover, had the Court taken a stance on this situation in the present Opinion, it would have risked prejudging some questions raised in two contentious cases currently pending before the Court. We are of the view that, as a general rule, an advisory opinion should not interfere with the resolution of pending contentious cases. Jurisdiction Para. 14 |
The Court did not have evidence before it which would allow it to assert whether and to which extent the control Israel continued exercising over the Gaza Strip after the 2005 withdrawal was justified by security motives, considering, in particular, the military actions conducted by Hamas directed at Israeli territory, even before 7 October 2023. Moreover, nearly all of Israel’s “policies and practices” mentioned in the Opinion refer to the situation in the West Bank. Jurisdiction Para. 16 |
Due to insufficient information presented to it, the Court should have concluded that it was unable to properly pronounce itself on the situation in Gaza prior to 7 October 2023. Jurisdiction Para. 17 |
Accordingly, we are of the view that “Israel’s policies and practices” in the Occupied Palestinian Territory do not affect the “legal status of the occupation”, if this encompasses, as the Opinion states (para. 82), the legality of Israel’s presence in this territory as an occupying Power. To the question (b) posed by the General Assembly, the Court should have therefore responded in line with the above. Such a response, which we believe to be the only legally correct one, would have spared the Court from taking a stance on the legality of the occupation itself, an issue on which it was not directly asked to pronounce itself. In our opinion, it would have been sufficient to note that this issue is not affected by the “policies and practices” in question. Jurisdiction Para. 27 |
The legality ab initio of a situation of military occupation mainly depends on the question of whether the military action which gave rise to the occupation can be considered lawful or unlawful in terms of jus ad bellum. But the Court did not receive sufficient information to rule, on an objective basis, on the respective responsibilities of the various parties involved in the armed conflict of 1967. The Court therefore cannot assess the legality of Israel’s use of force which is at the direct origin of the occupation at issue in the present case […] Jurisdiction Para. 33 |
We are of the opinion that the legal impact of the Oslo Accords and of the relevant Security Council resolutions should have been duly taken into account by the current Opinion. The combined legal effects of the Oslo Accords and of the relevant Security Council resolutions are pertinent not just for Israel and Palestine, but also for the United Nations organs involved in the Middle East peace process and for the international community as a whole. Jurisdiction Para. 40 |
Actually, a correct combined interpretation of the Oslo Accords and of the relevant Security Council resolutions clearly illustrates their legal effects, which continue to be valid at present […] Naturally, these legal effects impact the obligations of both Israel and Palestine related to the issue of the legality of occupation and to the implementation of the parameters established within the negotiation framework. Jurisdiction Para. 42 |
…Regarding the Middle East peace process, the Security Council, in exercising its primary responsibility for the maintenance of international peace and security under Article 24 of the Charter, adopted numerous relevant resolutions, some of them cited above. The analysis of those resolutions shows, in our view, that they are not merely declaratory, but mandatory and legally binding as far as the principles which they constantly reaffirmed on this matter, are concerned. We regret that the Opinion chose to ignore their relevance and value. Jurisdiction Para. 51 |
Of course, we are of the view that the provisions of the Oslo Accords, freely agreed by the parties, cannot be interpreted as derogating from the rules of international humanitarian law or international human rights law. Nor can such provisions entitle Israel to claim the respect of certain of its rights in the absence of the observance by Israel of its obligations set forth by these Accords. Jurisdiction Para. 58 |
…Thus, on the issue of the legality of occupation, the Court should have responded in the sense that “Israel’s policies and practices” in the Occupied Palestinian Territory do not affect the “legal status of the occupation”, as explained above. Such a response, which we believe to be the only legally correct one, would have spared the Court from taking a stance on the legality of the occupation itself, an issue on which it was not asked to pronounce. Since the Court has taken a stance on this issue, it should have done so correctly by taking into account all relevant parameters, which it did not do. Jurisdiction Para. 60 |
Indeed, for the first time, the Court does not only declare that Israel’s practices in the territories it occupies are unlawful, in light of the obligations incumbent upon it as an occupying Power, but it also asserts that Israel’s very presence in the territories is unlawful and that it must therefore withdraw from them without any prior guarantee, particularly regarding its security, even though the respect of Israel’s right to security is one of the essential elements to consider in order to achieve a lasting peace. We are of the view that, by doing so, the Court has embarked on a legally wrong path and reached conclusions that are not legally correct. Unlawful Presence Para. 5 |
In short, the Opinion provides no convincing reason that would justify moving from the finding that Israel’s “practices and policies” in the Occupied Palestinian Territory are, in many instances, unlawful, to the conclusion that the very presence of Israel in the territories is unlawful. In our view, on this point, there is a missing link in the Opinion’s reasoning for reasons we will expand upon below. The Court chose to portray the Israeli-Palestinian conflict in a biased and one-sided manner, which disregards its legal and historical complexity. It gives little weight to the successive resolutions by which, from 1967 to present, the Security Council established and endorsed the legal framework for resolving the conflict based on the coexistence of two States and on the right of each of the two peoples to live in peace and security. When it does not ignore these resolutions, it makes a selective reading of them. Unlawful Presence Para. 6 |
In our view, the two situations previously examined by the Court are entirely different from the one at issue in the present case. In this case, we are dealing neither with a presence maintained by a mandatory Power in violation of a Security Council decision declaring this presence illegal after the General Assembly terminated the mandate, nor with a situation in which a colonial Power failed in its obligation to complete the decolonization process, nor with any other situation comparable to the above. Unlawful Presence Para. 9 |
[…]we do not see how we can go from the finding that the annexation policy pursued by the occupying Power is illegal to the assertion that the occupation itself is illegal. Yet that is exactly what the Opinion does, without any explanation of even minimal legal substantiation. Unlawful Presence Para. 22 |
The rules governing the conduct of an occupation and the obligations of the occupying Power, on the one hand, and those concerning the use of force and its consequences, on the other hand, constitute two distinct sets of rules. The question of whether and to what extent the occupying Power’s conduct complies with its obligations in the occupied territory, irrespective of the legality of the occupation, must be examined under the first set of rules. The question of the legality of the occupation itself must be examined under the above-mentioned second set of rules. The Opinion recalls this distinction (para. 251) without, however, drawing the correct conclusions. Unlawful Presence Para. 23 |
…The Opinion does not justify in any way, except through general and vague formulations, the abrupt transition from the finding that, by its conduct in the occupied territories, the occupying Power fails to comply with its obligations to the assertion of the illegality of the occupation itself. The illegality of the conduct of the occupying Power, even when it consists in seeking to annex the occupied territory, cannot deprive the occupant’s presence of its character: this presence is and remains an occupation under international law. As for the question of whether this presence is illegal, as we mentioned earlier and as the Opinion itself seems to acknowledge, it falls under the application of a different set of rules. Unlawful Presence Para. 25 |
First, the Opinion declares Israel’s continued presence illegal in the whole of the Occupied Palestinian Territory, including the Gaza Strip. Considering that this illegality is inferred — wrongly in our view — from the settlement and the annexation policies, there is an incomprehensible discrepancy between the cause and the consequences. […] The Opinion does not refer to any element that would demonstrate the existence of an intent or policy aiming to annex the Gaza Strip. Consequently, we believe that, besides the fact that the reasoning of the Opinion is flawed in its very principle, it is tainted by an internal inconsistency. The only justification provided by the Opinion in support of the conclusion that the occupation has become unlawful in the whole of the Occupied Palestinian Territory, including Gaza, is that this territory constitutes a territorial unit “the integrity of which must be respected” (para. 262). Such a justification is by no means convincing Unlawful Presence Para. 29 |
Obviously, it is not impossible that, even if an occupation is initially lawful, it ceases to be so at a certain point in time. Unlawful Presence Para. 34 |
However, the mere passage of time does not suffice to render an occupation illegal, regardless of its duration. It is evident that an occupation is, by nature, a temporary situation that is destined to end at one point or another. However, international law does not lay out any time-limit beyond which an occupation would become ipso facto illegal. […] Clearly, a duration of 57 years is exceptionally long, with few historical parallels. But that is not enough: this duration must be considered in light of the exceptionally complex history and nature of the Israeli-Palestinian conflict and the many successive attempts at resolution, the failure of which cannot be attributed to a single party. Unlawful Presence Para. 35 |
But, most importantly, the 1993/1995 Oslo Accords formally adopted, between Israel and Palestine, the package “right to self-determination — right to security”, based on the Security Council resolutions 242 (1967) and 338 (1973), with direct impact on the conditions for ending the occupation of the Occupied Palestinian Territory, as well as the framework for negotiations ultimately leading to the “two-State solution” — which again will signify the end of the occupation. Indeed, the occupation being temporary by nature, the occupying Power is under an obligation to end the occupation as soon as it is no longer necessary to ensure its security. The Opinion failed to articulate this reasoning. Unlawful Presence Para. 44 |
The “two-State solution”, required by successive Security Council resolutions, which we will analyse below, is the only one that can respond to the legitimate need for security of both Israel and Palestine. This solution can only arise from a comprehensive understanding reached through negotiations, which must take into account all rights and interests involved: the right of the Palestinian people to self-determination is not incompatible with that of Israel to exist in security, while Palestine’s right to security must also be taken into account. The right to self-determination and the right to security must be implemented simultaneously in order to achieve the coexistence of the two States, which will also mark the end of Israel’s presence as an occupying Power in the Palestinian territory. Negotiations Para. 10 |
But, most importantly, the 1993/1995 Oslo Accords formally adopted, between Israel and Palestine, the package “right to self-determination — right to security”, based on the Security Council resolutions 242 (1967) and 338 (1973), with direct impact on the conditions for ending the occupation of the Occupied Palestinian Territory, as well as the framework for negotiations ultimately leading to the “two-State solution” — which again will signify the end of the occupation. Indeed, the occupation being temporary by nature, the occupying Power is under an obligation to end the occupation as soon as it is no longer necessary to ensure its security. The Opinion failed to articulate this reasoning. Negotiations Para. 44 |
The current Opinion ignores as well the fact that despite periods of violence and allegations by each side that the other failed to adhere to its commitments, neither the Israeli and Palestinian sides, nor the General Assembly, nor the Security Council have abandoned the central precept that direct negotiation on the basis of the “land for peace” principle is the path to comprehensive, just and lasting peace and security. Negotiations Para. 54 |
In particular, we share the view that the general and systemic practice of establishment and development of settlements in the West Bank is contrary to Article 49 of the Fourth Geneva Convention, as the Court already observed in 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 184, para. 120). Settlements Para. 3 |
…More generally, we believe that numerous aspects of Israel’s policy, especially over the past twenty years, can only be understood as aiming to gradually incorporate the majority of Area C of the West Bank into Israel’s own territory (in addition to the formal annexation of East Jerusalem in 1980). The implementation of such an objective, as the Court observed in 2004 within the narrower context of construction of the wall, “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right” (ibid., para. 122). Annexation Para. 3 |
We do not question whatsoever the assertion that “[t]he annexation of occupied territory by an occupying Power is unlawful” (para. 175) and that “occupation can under no circumstances serve as the source of title to territory” (para. 253). We are of the view, and so is the majority of the Court, that Israel’s policy for quite a long time already turns its back on the principle according to which an occupying Power cannot pursue a policy aimed at extending its sovereignty over the whole or part of the territory it occupies by incorporating it, de jure or de facto, into its own territory. But we do not see how we can go from the finding that the annexation policy pursued by the occupying Power is illegal to the assertion that the occupation itself is illegal. Yet that is exactly what the Opinion does, without any explanation of even minimal legal substantiation. Annexation Para. 22 |
Third, given the central role that the concept of annexation plays in the Opinion’s reasoning, it is surprising and regrettable that the Court did not meaningfully clarify the terminology by distinguishing between the different terms employed […] it sometimes uses the distinction between de jure annexation and de facto annexation. In our view, this latter distinction is a source of confusion. Both types of annexation involve effective control of the territory, but they differ in the way in which the State expresses its intention to hold the territory permanently. De jure annexation entails a formal declaration of the State by which it claims permanent sovereignty over a territory it occupies. De facto annexation, by contrast, is not accompanied by an explicit declaration of sovereignty over the annexed territory, the intention to exercise permanent sovereignty being rather inferred from the situation on the ground. This means that, essentially, a de facto annexation is an implicit or informal annexation as opposed to the explicit and formal annexation that is de jure annexation. But both are intended to produce legal effects. In the present Opinion, the Court could have clarified the terminology, particularly because, without such a clarification, another term, that of “gradual” or “creeping” annexation, cannot be properly defined. Annexation Para. 31 |
…“Settlements” in Oslo II encompass “settlements in Area C” (Oslo II, Article XII (5)). The parties to the Oslo Accords agreed that “[n]either side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations” (Oslo II, Article XXXI (7)). We are of the view that this obligation of Israel not to alter the status of the West Bank implies that any new settlements created in Area C and beyond it (if any) after 1995 (when Oslo II was concluded) are in breach also of this Accord. Annexation Para. 55 |
After thoroughly analysing the situation, both factual and legal, we are convinced that the post-1995 settlements combined with other measures, such as the expulsion of the local Palestinian population or the application of Israel’s domestic legislation to the occupied territory, are indicative of the intent to annex the territory comprising these settlements of Area C, but not the West Bank as a whole. Unfortunately, the Opinion does not make such necessary distinctions Annexation Para. 56 |
The “two-State solution”, required by successive Security Council resolutions, which we will analyse below, is the only one that can respond to the legitimate need for security of both Israel and Palestine. This solution can only arise from a comprehensive understanding reached through negotiations, which must take into account all rights and interests involved: the right of the Palestinian people to self-determination is not incompatible with that of Israel to exist in security, while Palestine’s right to security must also be taken into account. The right to self-determination and the right to security must be implemented simultaneously in order to achieve the coexistence of the two States, which will also mark the end of Israel’s presence as an occupying Power in the Palestinian territory. Security Para. 10 |
In fact, the relevant question is whether the occupying Power — Israel — could today completely withdraw from the occupied territories “as rapidly as possible”, in the absence of any guarantee, without exposing its security to substantial threats. In the current context, we find it quite difficult to answer this question in the affirmative. Israel’s full withdrawal from the occupied territories and the implementation of the right to self-determination by the Palestinian people is intrinsically linked to Israel’s (and Palestine’s) right to security. From this perspective, the fact that “the existence of the Palestinian people’s right to self-determination cannot be subject to conditions on the part of the occupying Power, in view of its character as an inalienable right” (para. 257) cannot limit Israel’s right to security. This right is an intrinsic part of the State’s fundamental right “to exist in peace and security” (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 183, para. 118) or “to survival” (see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 263, para. 96), in other words, of the sovereignty. Security Para. 36 |
Israel’s right to security, but also that of Palestine, which represent the second element of the above-mentioned package along with the right to self-determination, as main elements of the “two-State solution”, are of particular relevance. Regrettably, the right to security was almost completely ignored by the current Opinion. Security Para. 48 |
But, in our view, the package “right to self-determination — right to security” does not exclusively refer to Israel’s right to security. The Security Council resolution 242 (1967) sets out that to achieve a just and lasting peace in the Middle East, the relevant parties must respect and acknowledge “the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force”. Security Para. 49 |
More generally, we believe that numerous aspects of Israel’s policy, especially over the past twenty years, can only be understood as aiming to gradually incorporate the majority of Area C of the West Bank into Israel’s own territory (in addition to the formal annexation of East Jerusalem in 1980). The implementation of such an objective, as the Court observed in 2004 within the narrower context of construction of the wall, “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right” (ibid., para. 122). Self-Determination Para. 3 |
…It is not the occupation itself which violates the right to self-determination; it is the annexation and the practices related to it. By its very nature, any military occupation hinders the full exercise by the population of the occupied territory of its right to self-determination. This alone cannot render the occupation unlawful. To rule on the legality of a prolonged occupation, security considerations, which are essential for this purpose but almost entirely ignored in the Opinion, must be integrated into the analysis. We will return to this point later. Self-Determination Para. 26 |
…There is no legal connection whatsoever between the assertion (which is correct per se) that the Palestinian people should be able to exercise its right to self-determination on the whole of the Occupied Palestinian Territory and the extension of the “illegality” of the occupation (which as such, as shown in this joint opinion, has no legal basis) to all various parts of this territory. In reality, this discrepancy only underscores the fundamental flaw that taints the entire reasoning. Self-Determination Para. 29 |
When an occupying Power annexes, de facto/implicitly or de jure/explicitly, the occupied territory, it results in an unlawful situation that must cease, given its continuous character, under the law of international responsibility. This means that the occupying Power must cease the annexation and nullify all its effects. It remains bound to fully comply with its obligations under the legal régime of occupation, which, legally, has not ceased to apply. Instead, the Opinion, as it erroneously defines the wrongful act not as the annexation but as the occupation itself, concludes that it is Israel’s very presence in the Occupied Palestinian Territory that must cease “as rapidly as possible” (para. 267). Based on erroneous premises, the Opinion can only reach a false conclusion, which we cannot endorse. Consequences for Israel Para. 30 |
Moreover, we believe that the Opinion’s legally incorrect conclusions stem, to a large extent, from a misappreciation of the Oslo Accords signed between the representatives of Israel and Palestine. These Accords, along with the relevant resolutions of the Security Council, define the fundamental framework of a peaceful resolution of the conflict aiming at implementing the “two-State solution”, as explained below. Statehood Para. 7 |
…The reference to the two resolutions [Security Council resolutions 242 (1967) and 338 (1973)], especially to resolution 242 (1967), is of particular relevance, since it mentions the “right to live in peace within secure and recognized boundaries free from threats or acts of force”. The term “recognized” (boundaries) should be interpreted as a reference to the territorial definition of the Palestinian State as resulting from the permanent status negotiations, while the term “secure” (boundaries) should be interpreted as a reference to the right to security of Israel and to the right to security of the Palestinian State. Sovereignty Claims/ Borders Para. 45 |
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The question posed by the General Assembly related to Israel’s “continued presence” and not to the circumstances in which its occupation of Palestinian territory occurred. Therefore, it was not for the Court to pronounce on the latter aspect, that is on the legality ab initio of the occupation. It is worth recalling, however, that the General Assembly has several times had occasion to affirm the illegality ab initio of Israel’s occupation… Unlawful Presence Para. 35 |
Recalling the General Assembly’s finding on the illegality ab initio of Israel’s 1967 occupation of Palestinian territory, and its condemnation of the continuation of this occupation in violation of the United Nations Charter, can only reinforce the Court’s findings in this Opinion on the illegality of Israel’s continued presence in the Occupied Palestinian Territory.’ Unlawful Presence Para. 36 |
Regarding the first point, the Court recalls that Israel has implemented a policy of settlement and annexation throughout its occupation of Palestinian territory. The Advisory Opinion highlights the following components of this policy: the transfer of Israeli civilians into the Occupied Palestinian Territory, the forced displacement of the Palestinian population, the confiscation of land, the exploitation of natural resources and the extension of Israeli law to this territory. Each of these already constitutes in itself a serious violation of the relevant norms of international humanitarian law and international human rights law, with which Israel, as an occupying Power, is bound to comply. Settlements Para. 4 |
The Opinion rightly points out in paragraph 115 that the establishment of these settlements is a clear violation of Article 49 (6) of the Fourth Geneva Convention, which prohibits the deportation of the population of the occupied territory and the transfer by the occupying Power of its population to the occupied territory. These are therefore serious violations that the States parties to the Geneva Conventions are obliged to punish; they are also under an obligation to track down those responsible for committing or ordering the commission of such offences. The ICRC has pointed out that this obligation is also a customary one, extending to all States, which must not only investigate such grave breaches allegedly committed by their nationals or their armed forces, or on their territory, they also have the right to confer on their national courts universal jurisdiction for the punishment of such grave breaches for which no statute of limitations may apply (ICRC Study on Customary International Law, rules 156 to 158, 160 and 161). Settlements Para. 12 |
In this respect, it is also undoubtedly worth recalling that the “deportation of population” is an act constituting a crime against humanity under Article 7 of the Rome Statute of the International Criminal Court (hereinafter the “Rome Statute”). Similarly, the direct or indirect transfer by an occupying Power of part of its civilian population into the territory that it occupies constitutes a war crime under Article 8 of the Rome Statute. It should also be noted that, according to Article 8 bis (2) of the Rome Statute, “any annexation by the use of force of the territory of another State or part thereof” constitutes a crime of aggression “regardless of a declaration of war”… Settlements Para. 13 |
While it must be recognized that the definition of apartheid in Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid (hereinafter the “Apartheid Convention”) is marked by the experience in South Africa, which is expressly mentioned, this cannot mean that for any policy to be characterized as constituting apartheid it must fully reproduce the policies and measures implemented in South Africa at that time… In order to prevent and punish what constitutes a crime under international law, whose prohibition is an undisputed jus cogens norm, a non-restrictive reading of this definition is therefore necessary Apartheid Para. 16 |
As noted above, Article 3 of CERD, to which Israel is a party, establishes an obligation to prevent, prohibit and eradicate any act of apartheid. Furthermore, although Israel is not a party to either the Apartheid Convention or the Rome Statute, there can be no doubt that the prohibition of apartheid is a customary norm, that is recognized as a peremptory norm from which no derogation is possible and whose violation constitutes a crime against humanity. It is to be noted that, following in the steps of the United Nations General Assembly (see resolution 2202 (XXI) of 16 December 1966), the Security Council described apartheid as “a crime against the conscience and dignity of mankind [which] is incompatible with the rights and dignity of man, the Charter of the United Nations and the Universal Declaration of Human Rights, and seriously disturbs international peace and security” (resolution 473 of 13 June 1980, para. 3). Apartheid Para. 17 |
…Accordingly, apartheid would be established based on the following elements: the existence of two or more distinct racial groups; the commission of inhumane acts against one or more groups; an institutionalized régime of systematic oppression and domination by one racial group over one or more other racial groups and an intention to maintain this régime. Apartheid Para. 20 |
Palestinians and Israeli Jews identify themselves as two distinct groups based on “subjective” elements relating to “descent, or national or ethnic origin”, including those relating to religion and culture, and should therefore be considered as two “racial groups” within the meaning of the first constitutive element of apartheid. In this respect, it should also be pointed out that Israel’s 2018 Basic Law states that “[t]he Land of Israel is the historical homeland of the Jewish People” and that the State will “strive to secure the welfare of members of the Jewish people”, thus drawing a clear distinction between Jewish and non-Jewish people. Apartheid Para. 22 |
It is evident from the magnitude and consistency of these violations that they are not isolated acts but are part of an institutionalized régime of systematic oppression by Israelis, over Palestinians in the occupied territory. As the Opinion demonstrates, settlers and Palestinians live in the occupied territory under a régime established by Israel which grants different rights and benefits to each of the two groups. Numerous reports from United Nations bodies have already established and decried this situation. Apartheid Para. 24 |
The Advisory Opinion also notes that Israel put in place two different legal systems in the Occupied Palestinian Territory, which are applied separately to each of the two groups Apartheid Para. 27 |
Israel’s commission of inhumane acts against the Palestinians as part of an institutionalized régime of systematic oppression and domination, and its intention to maintain that régime, are undeniably the expression of a policy that is tantamount to apartheid. Apartheid Para. 29 |
… It should be clarified that, while Israel’s policies and practices in the Palestinian territory occupied since 1967 clearly constitute a violation of the Palestinian people’s right to self-determination, the failure to respect this right dates back to 1948 and not 1967, as recalled by General Assembly resolution 32/20, adopted in 1977 and quoted above, in which the Assembly stated that it was “[d]eeply concerned . . . that the Palestinian people, after three decades, [were] still deprived of the exercise of their inalienable national rights” (emphasis added). In this respect, I feel that the Court’s reasoning should be supplemented by a reference to Israel’s obligations under resolution 181 (II). Self-Determination Para. 37 |
… In other words, neither Israel nor Palestine can claim to derive rights from the resolution while rejecting or ignoring the rights of the other party enshrined in the same text. It follows that the proclamation of an independent Jewish State on 14 May 1948 based on resolution 181 (II) necessarily entails a commitment to the establishment of an independent Arab State. In this regard, it should be recalled that the State of Israel’s proclamation of independence provides that the former is “ready to cooperate with the agencies and representatives of the United Nations in implementing the [said] resolution”. Israel has therefore indisputably committed itself not only to respecting resolution 181 (II), but also to implementing it. Self-Determination Para. 39 |
It was, in any event, on this express condition that Israel was admitted to the United Nations. Thus, in resolution 273 (III) by which it admitted Israel as a Member of the United Nations, the General Assembly stated that it did so while “[r]ecalling its resolutions of 29 November 1947 [181 II] and 11 December 1948 [194 III] and taking note of the declarations and explanations made by the representative of the Government of Israel before the ad hoc Political Committee in respect of the implementation of the said resolutions”. Self-Determination Para. 40 |
However, in this Opinion the Court has not determined all the legal consequences arising from this situation, in particular the obligations incumbent on Israel. Israel’s admission to the United Nations gives rise to rights but also to legal obligations. Thus, having undertaken to implement resolution 181 (II), Israel is under a legal obligation not to hinder the exercise of the Palestinian people’s right to self-determination, or to oppose the proclamation of a Palestinian State by the representatives of the Palestinian people, and indeed it cannot do so without undermining its own rights, the existence of the two States being inextricably linked in the same legal instrument. Self-Determination Para. 41 |
Having committed to implementing resolution 181 (II), Israel also has an ongoing obligation to co-operate with the United Nations to ensure that the State of Palestine, proclaimed in Algiers in 1988 and admitted to the United Nations as an observer State on the basis of resolution 181 (II), can exercise its full sovereignty over its territory and achieve total independence, which requires the complete withdrawal of Israel from the Occupied Palestinian territory. Consequences for Israel Para. 42 |
The main consequence of the violations must be the obligation to bring them to an end. This primarily and necessarily entails the obligation for Israel to put an end to its unlawful presence in the Occupied Palestinian Territory (see paragraph 267 of the Opinion). Only the imperative withdrawal of Israel from the Occupied Palestinian Territory will enable the Palestinian people to fully exercise its right to self-determination, including its right to a fully independent, sovereign and viable State. This is therefore the main objective that the United Nations and all States must pursue. Consequences for Israel Para. 56 |
Accordingly, this withdrawal cannot be conditional on the success of negotiations whose outcome will depend on Israel’s approval. In particular, Israel cannot invoke the need for a prior agreement on its security claims for such a condition may lead to perpetuating its unlawful occupation. Indeed, in accordance with the principle expressed by the maxim ex injuria jus non oritur no one may benefit from their own illegal act. Otherwise, the cessation of violations of international law, including violations of peremptory norms (jus cogens), would be subject to the veto of the perpetrator of those violations. Consequences for Israel Para. 57 |
Negotiations between the parties — which remain necessary — would then focus mainly on the modalities of implementation, rather than on the question of Israel’s withdrawal, which must take place, according to the terms of the Opinion, “as rapidly as possible”. They would also focus on other matters necessary to achieve a just, comprehensive and lasting peace, such as the question of refugees, mutual security arrangements between the two States and changes that could be made by mutual agreement to the 1967 boundary lines. Consequences for Israel Para. 58 |
The other important point that ought to be mentioned is that of the reparations owed by Israel for its violations of international law to the victims in the Occupied Palestinian Territory and to the Palestinian people. This has to be “full reparation”, including restitution and compensation, which must, according to the well-known formula of the Permanent Court of International Justice in the Chorzów Factory case, “as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (see paragraph 269 of the Opinion). Reparations Para. 60 |
As regards compensation, it is not for the Court, in the context of the present Opinion, to establish the specific elements or quantum thereof. It has affirmed the principle and it is now up to all parties concerned to determine the modalities of such compensation, which must be made in accordance with the rules of international law. As the United Nations International Law Commission notes, the injury to be repaired “includes all damage, whether material or moral, resulting from the internationally wrongful act of the State”. Compensation covers “any financially assessable damage including loss of profits so far as this is established in the given case” (ILC, paragraph 2 of the commentary on Article 31 and paragraph 1 of the commentary on Article 36, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10))… Reparations Para. 62 |
The fact remains, however, that the United Nations, its principal organs and its institutions must ensure that the measures they adopt are efficient and effective given that those addressed to Israel in almost all the resolutions of the General Assembly and the Security Council have remained without effect… Consequences for the UN Para. 50 |
It is therefore essential that the Security Council and the General Assembly take further appropriate and concrete measures to bring to an end, without delay and within a well-defined timeframe, the violations of international law resulting from Israel’s policies and practices in the Occupied Palestinian Territory. Consequences for the UN Para. 51 |
Such negotiations would be more likely to succeed if they take place under the auspices of the United Nations and on the basis of international law, whose respective impartiality and legitimacy would go some way to offsetting the great power imbalance between the occupier and the occupied Consequences for the UN Para. 59 |
The Opinion rightly points out in paragraph 115 that the establishment of these settlements is a clear violation of Article 49 (6) of the Fourth Geneva Convention, which prohibits the deportation of the population of the occupied territory and the transfer by the occupying Power of its population to the occupied territory. These are therefore serious violations that the States parties to the Geneva Conventions are obliged to punish; they are also under an obligation to track down those responsible for committing or ordering the commission of such offences. The ICRC has pointed out that this obligation is also a customary one, extending to all States, which must not only investigate such grave breaches allegedly committed by their nationals or their armed forces, or on their territory, they also have the right to confer on their national courts universal jurisdiction for the punishment of such grave breaches for which no statute of limitations may apply (ICRC Study on Customary International Law, rules 156 to 158, 160 and 161). Consequences for Third States Para. 12 |
These obligations are both negative and positive. The negative obligations require States to refrain from encouraging, aiding or assisting Israel in violation of the rules of international humanitarian law applicable in the Occupied Palestinian Territory. As the ICRC clarified in its 2016 commentary on the First Geneva Convention, “financial, material or other support in the knowledge that such support will be used to commit violations of humanitarian law would therefore violate common Article 1, even though it may not amount to aiding or assisting the commission of a wrongful act by the receiving States for the purposes of State responsibility”. (See ICRC Commentary, Geneva Conventions, Common Article 1, https://ihl-databases.icrc.org/fr/ihl-treaties/ gci-1949?activeTab=1949GCs-APs-and-commentaries, para. 160.) Thus, any unconditional financial, economic, military or technological assistance to Israel would constitute a breach of this obligation. Consequences for Third States Para. 45 |
With respect to positive obligations, States must take proactive measures to bring violations to an end and ensure respect for the relevant conventions in the Occupied Palestinian Territory, including by using their influence over Israel (see ICRC Commentary, Geneva Conventions, Common Article 1, https://ihl-databases.icrc.org, para. 164). Consequences for Third States Para. 46 |
… Indeed, as the Court has emphasized with regard to the crime of genocide, a State’s referral of a violation of obligations erga omnes to the organs of the United Nations does not relieve other States of their obligations “to take such action as they can” to ensure respect for those obligations and prevent or punish violations thereof, “while respecting the United Nations Charter and any decisions that may have been taken by its competent organs” (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 220, para. 427). Consequences for Third States Para. 47 |
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…The Court has previously recognized that the General Assembly has been involved with the Israeli-Palestine question since 1947, when it recommended the Plan of Partition for Palestine. As the United Nations has “permanent responsibility towards the question of Palestine until the question is resolved”, it follows that the questions asked in the General Assembly’s request for this Advisory Opinion do arise within the scope of its activities in maintaining international peace and security. Therefore, I agree that the Court has jurisdiction to render an advisory opinion in the present case and have accordingly voted in favour of paragraph 285, subparagraph (1), of the operative clause. Jurisdiction Para. 39 |
Where advisory jurisdiction has been established, the Court retains the discretion to decline to give an opinion where there are “compelling reason[s]” for it to do so. The Court must “satisfy itself . . . as to the propriety of the exercise of its judicial function” with reference to these compelling reasons. Thus, while “[a] reply to a request for an Opinion should not, in principle, be refused”, nevertheless, the retention of the discretion of whether to render an advisory opinion “exists so as to protect the integrity of the Court’s judicial function as the principal judicial organ of the United Nations”. As observed by Judge Buergenthal in the Wall Opinion, quoting what the Court said in Western Sahara, the critical question in determining whether or not to exercise its discretion in acting on an advisory opinion request is “whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character”. Jurisdiction Para. 40 |
…Due to the one-sided formulation of the questions posed in resolution 77/247, coupled with the one-sided narrative in the statements of many participants in these proceedings, some of whom do not even recognize the existence or legitimacy of the State of Israel, the Court does not have before it the accurate and reliable information that it needs to render a balanced opinion on those questions. Jurisdiction Para. 42 |
In the present case, many participants have referred to the erga omnes (and possible jus cogens) nature of some of the rights claimed by the Arab Palestinians and the fact that these are “of interest to the international community” at large, and therefore transform the nature of the dispute between Israel and Palestine from a bilateral one. I respectfully disagree. As I have stated above, the Israeli-Palestine conflict and all its attendant complex issues, is historically and essentially a bilateral dispute, in respect of which both parties have subscribed to another mode of dispute resolution, namely international negotiation, and not judicial or third-party settlement. The questions before the Court do not ask it to opine upon the law relating to occupation or to self-determination, in the abstract: the Court’s Advisory Opinion is clearly required to consider the historical context of the conflict between Israel and Palestine spanning decades, including the framework developed by the organs of the United Nations towards settlement of that conflict. Israel has clearly not given its consent to the Court pronouncing itself on the complex issues involved. In this regard, Israel’s participation in the contentious case relating to the application and interpretation of the Genocide Convention must not be confused with, or mistaken for its consent to judicial settlement of the various complex issues outlined in this opinion. Similarly, many of the participants who have weighed in on how the Court should or should not answer the questions before it, are not parties to the conflict, whilst others have other vested interests in seeing the matter resolved one way or another. Of particular concern is the question of the ongoing Gaza war between Israel and Hamas, a matter about which many participants aired their views in their written statements or observations, and which is clearly sub judice in two contentious cases before the Court. The Court would need to carefully navigate its Advisory Opinion away from the issues that are sub judice in those other cases if it is to maintain its judicial integrity. Jurisdiction Para. 47 |
As a fundamental principle of international law, UN institutions (including the principal judicial organ) require the explicit consent of the involved State to mediate disputes between States or between States and non-State entities. The United Nations primarily operates on the principle of State sovereignty and typically cannot impose resolutions without the agreement of the State. Yet as observed above, the Advisory Opinion circumvents State consent by giving judicial opinions over matters that are clearly reserved for the UN and bilateral negotiation framework. Jurisdiction Para. 66 |
The timeline proposed by most participants and what the Court has called “bring[ing] to an end as rapidly as possible the unlawful presence of Israel in the Occupied Palestinian Territory” is uncertain and impracticable. […] Moreover, this is clearly contrary to what Israel and Palestine previously agreed including under the Oslo Accords, or indeed what the Security Council sanctioned under resolutions 242 and 338. […] This is because Israel’s continued presence in the West Bank and Jerusalem (and recently in Gaza) is premised in part, on real security concerns; the disagreement between the parties over the borders of the two States, and the de facto reality on the ground. Those matters will render the immediate and unilateral withdrawal of Israel practically impossible. Unlawful Presence Para. 54 |
More importantly, the Court should have envisaged and recommended to the General Assembly, Security Council and third States, a process that incorporates the aforementioned international negotiation framework into “Israel’s withdrawal”. This could have been done, for example, by recommending that the timeline and the modus operandi of Israel’s withdrawal should be determined by bilateral or multilateral negotiations under the supervision of the United Nations. Unlawful Presence Para. 55 |
The General Assembly’s questions contained in resolution77/247 rest on certain assumptions, namely that: (1) all the territories held during the Jordanian and Egyptian occupation within the 1949 Armistice Lines are automatically the sovereign territories of Palestine, and thus not of Israel; (2) that Israel’s presence in the West Bank, the Gaza Strip and Jerusalem is without any legal justification; (3) Israel’s presence in these areas violates Palestinian rights; (4) this territory is “Palestinian”; and (5) that Israel’s policies and practices are annexational and necessarily “aimed at altering the demographic composition, character and status of . . . Jerusalem”. While the language of resolution 77/247 portrays these assumptions as having been established already, I am not sure that these issues are as straightforward as they appear. […] At the very least, the Court would need to examine and evaluate evidence concerning whether the 1949 Armistice Lines are “secure boundaries” within the meaning of Security Council resolutions 242 and 338 Unlawful Presence Para. 68 |
Security Council practice does not provide any support for the view that “the notion of ‘illegal occupation’ may extend to occupation resulting from a lawful use of force”. Given the circumstances of Israel’s occupation of the territories in question in 1967, this should suffice. Although several General Assembly resolutions specifically addressing the Israeli occupation of Arab territories refer to the occupation as “illegal”, a review of the voting records shows that none of the Western democracies supported the resolutions asserting the illegality of the Israeli occupation. Unlawful Presence Para. 86 |
Historically, Israel assumed control over the disputed territories (i.e. the West Bank, the Gaza Strip and Jerusalem) in June 1967 in response to a clear and present threat, initiated by a group of Arab States, intent on annihilating the Jewish State. The legitimacy of Israel’s control of these territories at that time was generally uncontested as it was understood that it had done so within the framework of the legitimate exercise of its right of self-defence. While the international community did eventually develop a framework for the resolution of this war (UN Security Council resolutions 242 and 338, discussed above), it was not contended at that time that Israel’s control of these territories, pending such resolution, was illegal. Accordingly, it is difficult to ascertain at what point in history, and pending a negotiated settlement, when Israel’s presence in and control of the disputed territory, became an illegal occupation, as opined by the majority. Unlawful Presence Para. 87 |
State practice and opinio juris do not support the existence of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal on account of passage of time.[…] It is indisputable that Israel’s continued presence in the disputed territories is in large part due to genuine security concerns, as well as due to its own sovereignty claims to those territories, which can only be settled through negotiations. Unlawful Presence Para. 88 |
[…] By asking the Court to examine the policies and practices of one of the parties, while ignoring the policies and practices of the other party or those of interested third States, such as the Arab neighbours, and by asking the Court to determine the legal consequences of Israel’s policies and practices, the Court cannot arrive at a balanced view that is in keeping with its judicial function and character. The practical and realistic solution is a consensual one, jointly arrived at by both parties to the conflict through good faith negotiations within the existing negotiation framework and implementation of existing Security Council resolutions. Negotiations Para. 80 |
As stated earlier, Israel and the representatives of the Arab-Palestinians chose to negotiate the terms of Palestinian autonomy or self-determination under the terms and conditions set out in the Oslo Accords which instruments remain valid and binding, […] Final status issues, including permanent borders of a prospective Palestinian State, the administration of Jerusalem, and the return of refugees, are amongst the issues that the parties to the conflict agreed would be determined through negotiation. Seeking or obtaining unilateral recognition of Palestinian statehood or independence within the territory of a sovereign State breaches the Oslo Accords and can only exacerbate the conflict. Negotiations Para. 90 |
The complex arrangements made under the Oslo Accords dividing the disputed territories into Areas A, B and C, have arguably resulted in a special legal régime (lex specialis) in relation to the post-1967 territories. As instruments of international law, they impose a complex matrix of mutual rights and obligations, limiting the application of the general principle of law. The Oslo Accord II prohibits both parties from initiating “any step that will change the status of the West Bank, including East Jerusalem and the Gaza Strip, pending the outcome of permanent status negotiations”. The future status of these territories and the nature of an independent or autonomous Palestinian entity can only be settled through good-faith negotiations reflecting a balance of competing interests. Negotiations Para. 91 |
The view that Israel’s establishment of settlements in the disputed territories is illegal and amounts to unlawful “annexation” rests entirely on Article 49 (6) of the Fourth Geneva Convention, which provides that “the Occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies”. The Court has no probative evidence before it that (except possibly members of the Israeli Defence Forces), any of the Israeli citizens that have moved into the disputed area since 1967 were forced or coerced to do so by the Israeli Government. It is quite possible that some of the residents in these areas have legitimate title deeds predating 1967. Labelling all settlements in East Jerusalem and the West Bank as “illegal” both misrepresents the spirit and letter of Article 49 (6) of the Fourth Geneva Convention. Moreover, such a view contradicts Article 6 of the Mandate for Palestine which encouraged Jewish settlements throughout the Mandate and is wholly inapplicable based on Israel’s claim to sovereignty pursuant to uti possidetis juris. Annexation Para. 89 |
Another significant factor which the Court has overlooked, and which distinguishes the Israel-Palestine conflict from other international situations involving calls for an “immediate, total and unconditional end” of colonization or occupation or expired legal mandate, is the existential and security threats posed to the Jewish people and State of Israel, from the disputed territories and from its adversaries in the neighbourhood and beyond. […] Indeed, many of the wars between Israel and her Arab neighbours have been fought by Israel pre-emptively to remove an immediate and existential military threat originating from either the OPTs or from enemies further afield. […] As pointed out earlier in this opinion, the Security Council has hitherto taken cognizance of Israel’s legitimate security concerns and called for a withdrawal that occurs concurrently with effective security guarantees, as reflected in its resolutions 242 (1967) and 338 (1973) and others. Security Para. 56 |
The practical requirement that withdrawal from Palestinian territory should be accompanied by effective security guarantees was also central to the Oslo Accords and the interim agreements70 between Israel and the PLO, which led to the establishment of the Palestinian Authority to which Israel transferred powers of governance over parts of the OPTs. Indeed, the collapse of the Oslo process was brought about by Israel’s unwillingness to continue its withdrawal from the occupied territories in the absence of effective security guarantees from the Palestinian side Security Para. 57 |
In particular, the Advisory Opinion does not consider the tense security situation in the West Bank, which renders it practically impossible for Israeli forces to unilaterally withdraw from occupied territories without putting in place security guarantees for the hundreds of Israeli citizens or settlers (including those that hold valid titles to private land predating 1948) who would remain under Palestinian control. Security Para. 58 |
[…] It has been argued that the Palestinian Arab population living within the Mandate also had and continue to have a right to self-determination. However, the founding documents of the Mandate (including General Assembly resolution 181 (1947)) are silent on the issue of the self-determination of Palestinian Arabs living within the Mandatory territory, implying that the question of their self-determination was perceived as one of “internal self-determination” that would require negotiation and mutual agreement. Be that as it may, the rights of multiple nations to self-determination on a given territory should not disturb the application of the principle of uti possidetis juris. Self-Determination Para. 79 |
Whilst there is no doubt that the right to self-determination is a right erga omnes, to which the Palestinian people are entitled, in the present context, that question raises issues of the territorial borders and the safety and security of both the prospective independent Palestinian State and the Israeli State coexisting side by side. These issues, including the proposed frontiers of the two States, territorial inviolability, and legitimate security concerns of both peoples, have not been addressed by the Advisory Opinion. […] Self-Determination Para. 80 |
International law arguably supports the right of Arab-Palestinians to self-determination but leaves it to the concerned parties (including the State of Israel which currently claims sovereignty over the disputed territory by virtue of uti possidetis juris) to agree upon the choice of means to fulfil that right. As is reflected in Security Council resolutions 242 and 338, international law does not allow the self-determination to conflict with the sovereign rights of an existing sovereign State, including its rights to territorial and secure and integrity, political independence defensible borders. If, pursuant to uti possidetis juris, all the territory covered by the Mandate of Palestine in May 1948 became the sovereign territory of Israel, then Palestinian self-determination will necessarily the form of autonomy that does not conflict with that sovereignty. Self-Determination Para. 81 |
Finally, I have serious doubts as to whether it is appropriate to apply the 1928 Chorzów Factory principle of “reparations” (as a remedy that “must, as far as possible, wipe out all the consequences of the [alleged] illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed”) to all of Israel’s violations of international law identified in the Advisory Opinion. This is clearly a situation where there is enough blame to go round, not just of Israel but also of Arab Palestinians (for the failure of prior peace negotiations and for resorting to war) and, to some extent, the international community, for taking so long to find a lasting solution to the Israeli-Palestine conflict. The solution of two States coexisting peacefully side by side, has never lain in the hands of one or the other party. Israel’s unilateral withdrawal from the OPTs (short of vanishing from the face of the earth) is not going to bring about the much-needed peace in the Middle East. This begs the question: what exactly is Israel’s share of the blame for which it should pay reparations? Reparations Para. 61 |
Besides, in most if not all cases of decolonization or termination of League of Nations or UN Mandates where the occupying or colonial power has benefitted from decades of plundering the natural and mineral resources in the occupied territory or colony, the people of those territories have upon attainment of self-determination, not received any reparations for their loss, much less that restoring them to the status quo ante! The situation in this part of the Middle East is different because as has been shown in the historical context, Israel is not a colonizer. […] Without first ascertaining and balancing the competing sovereignty and territorial claims of the concerned parties, it is, in my view, unrealistic and simplistic to recommend the kind of reparations referred to in the Advisory Opinion. Reparations Para. 62 |
Another complex issue which is relevant to analysing the legal consequences of the illegality of Israel’s policies and practices is the fact that Israel has its own sovereignty claims regarding parts of the territory which the international community views as the OPT71, an issue not given any attention by most participants. […] Requiring Israel’s “immediate, total and unconditional” withdrawal would be tantamount to denying Israel’s legal claims pertaining to parts of those territories. Sovereignty Claims/ Borders Para. 59 |
To determine the competing sovereignty claims, the Court would need to shift its focus from a review of “Israel’s policies and practices in the OPTs” to a review of Israel and Palestine’s competing sovereignty claims over different parts of the OPTs, notwithstanding that such matters were not sufficiently argued during these proceedings. Clearly these are complex issues that rightly call for a negotiated, rather than judicial settlement. This is yet another reason why resolution 242 calls for an agreement leading to “termination of all claims” and the acknowledgment of “secure and recognized boundaries”. This is also why the Oslo Accords envisioned final status negotiations over borders. Sovereignty Claims/ Borders Para. 60 |
[…] The situation in this part of the Middle East is different because as has been shown in the historical context, Israel is not a colonizer. It was Britain that originally held the mandate for Palestine, and the State of Israel was the only State to emerge as an independent State, inheriting the whole of the disputed territory under uti possidetis juris. Without first ascertaining and balancing the competing sovereignty and territorial claims of the concerned parties, it is, in my view, unrealistic and simplistic to recommend the kind of reparations referred to in the Advisory Opinion. Sovereignty Claims/ Borders Para. 62 |
Article 2, paragraph (1), of the Charter of the United Nations enshrines the idea that all Member States of the UN, regardless of their size, population, economic power or military strength, are considered equal under international law. The principle of sovereign equality necessitates that international law be applied consistently across all States and situations. Yet, the application of international law to the Israeli-Palestinian conflict seems to diverge from this standard. For instance, the characterization of Israeli settlements in the post-1967 territories, including East Jerusalem, as illegal and a serious violation of international law, or the assertion that the borders as of 4 June 1967 serve as Israel’s de facto boundaries, or the prescription of a mandatory two-State solution — these are interpretations not uniformly applied to other regions deemed “occupied” […] the General Assembly’s questions, and the whole approach in the Advisory Opinion are one-sided and imbalanced and ignore or downplay Israel’s existing territorial and sovereignty rights. Sovereignty Claims/ Borders Para. 64 |
The questions of Israel’s alleged occupation of certain Palestinian territories since 1967, or of its annexation of foreign territory, or of the alleged infringement of the Palestinian people’s right to self-determination, are all questions that cannot be answered without first determining the territorial scope (i.e. borders) of the State of Israel, a critical matter regarding which the Court has not received arguments or evidence. The borders, the territorial sovereignty of both Israel and Palestine, are another sensitive area the Court cannot simply presume to appreciate based on the one-sided narrative contained in the statements of the pro-Palestinian group of States. Sovereignty Claims/ Borders Para. 67 |
General Assembly resolution 77/247 refers to the West Bank, the eastern part of Jerusalem, and the Gaza Strip as “Palestinian territory”. The resolution appears to assume that sovereign rights to this area rest exclusively with the Palestinian people. It disregards any potential claims the State of Israel and the Jewish people may have with respect to some of these areas. In law and in fact, for over a century, sovereign legal title over the West Bank (and indeed the Gaza Strip) has been, and continues to be, indeterminate, or in abeyance. […] Under these agreements, the question of the final disposition of these areas shall be determined only by negotiation. Until then, both sides have agreed to provisional arrangements, which continue to apply and govern the legal relationship between them today. Sovereignty Claims/ Borders Para. 69 |
[…] Uti possidetis juris is one of the main principles of customary international law intended to ensure stability, certainty and continuity in the demarcation of territorial boundaries of States emerging from decolonization or mandates such as the British Mandatory Palestine. In effect, the principle of uti possidetis juris transforms the colonial and administrative lines existing at the moment of birth of the new State into national borders. Sovereignty Claims/ Borders Para. 70 |
As stated above, when Britain terminated its stewardship over what was left of the Mandate for Palestine in 1947, according to the principle of uti possidetis juris, the administrative boundaries of the Mandate for Palestine on 14 May 1948 became the borders of the independent State of Israel (the only State to emerge from Mandatory Palestine at the time of Britain’s withdrawal) […] Sovereignty Claims/ Borders Para. 72 |
Israel’s independence would thus appear to fall squarely within the bounds of circumstances that trigger the principle of uti possidetis juris. Applying the rule would appear to dictate that Israel’s borders are those of the Palestine Mandate that preceded it, except where otherwise agreed upon by Israel and its relevant neighbours. […] Sovereignty Claims/ Borders Para. 73 |
Thus, while considerable efforts had been invested in creating and advancing proposals for altering the borders of the Jewish State of Israel and a contemplated companion Arab State (two-State solution), no such efforts have so far, succeeded in being implemented. Thus, it would appear that uti possidetis juris dictates recognition of the borders of Israel as coinciding with the borders of the Mandate as of 1948, rather than the “1967 borders” unless and until the parties to the conflict agree otherwise. Sovereignty Claims/ Borders Para. 77 |
The borders, territorial sovereignty of both Israel and Palestine is another sensitive area the Court cannot simply presume to appreciate based on the one-sided narrative contained in the statements of the pro-Palestinian group of States. […]The questions ask the Court to presuppose that all the territories held during the Jordanian and Egyptian occupation within the 1949 Armistice Lines are automatically the sovereign territories of Palestine, and thus not of Israel. I am not sure that this issue is as simple as it appears. At the very least, the Court would need to examine and evaluate evidence concerning whether the 1949 Armistice Lines are “secure boundaries” within the meaning of Security Council resolutions 242 and 338. This, in turn, would require examination of the threats facing Israel emanating from the OPTs and the broader region. Sovereignty Claims/ Borders Para. 78 |