Law for Palestine / July 20, 2024
An extensive summary of the advisory opinion along with an analysis of its main pillars will be released soon by Law for Palestine.
On July 19, 2024, the International Court of Justice issued a historic advisory opinion in response to questions posed by the United Nations General Assembly in a resolution adopted in December 2022. The questions included:
(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?
(b) How do the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?”
In its findings, the Court concluded the following:
- The Court first determined that the request for an advisory opinion was made in accordance with the Charter, thereby affirming its jurisdiction. It found no compelling reasons to decline the General Assembly’s request for an advisory opinion.
- The Court recognized that the occupied Palestinian territory (oPt), including the West Bank, East Jerusalem, and Gaza constitute a single territorial unit whose unity and integrity must be preserved and respected. It stated that Israel continues to exercise key elements of authority over Gaza, including control of land, sea, and air borders, imports, and export taxes. Therefore, Israel’s withdrawal from Gaza has not entirely released it from its obligations under the law of occupation.
- The Court addressed the effects of Israel’s settlement policy on the Palestinian people, noting that large-scale land confiscation deprives the population of basic means of subsistence, forcing them to leave. Israeli military measures have exacerbated this need to leave against their will. The Court stated that Israel’s settlement policy, including the transfer of Israeli settlers to the West Bank and East Jerusalem, as well as the maintenance of settlements, violates the Fourth Geneva Convention.
- The Court found that the extension of Israeli law to the West Bank and East Jerusalem is not justified under any grounds in the second paragraph of Article 64 of the Fourth Geneva Convention. Therefore, Israel has exercised its occupation in a manner inconsistent with Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention.
- The Court concluded that Israel’s use of natural resources in the oPt is inconsistent with its obligations under international law and breaches its duty to act as an administrator, failing to respect the Palestinian people’s right to permanent sovereignty over natural resources.
- The Court noted that the Hague Regulations are part of international customary law and bind Israel. Additionally, Israel remains bound by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights concerning its actions in the oPt.
- The Court asserted that the Oslo Accords cannot detract from Israel’s obligations under international law applicable in the oPt. It found that the Oslo Accords do not permit Israel to annex parts of the oPt to meet its security needs, nor do they authorize it to maintain a presence there.
- Regarding Israel’s policies and practices related to the Palestinian right to self-determination, the Court emphasized the temporary nature of occupation and the illegality of sovereignty over occupied territory, regardless of the occupation’s length. Effective control must align with the prohibition of the threat and use of force.
- The Court found that Israel’s frequent land confiscations for reallocating to Israeli settlers are not temporary measures and thus violate the Fourth Geneva Convention’s prohibition on forcible transfer of protected populations.
- The Court concluded that Israel’s policies and practices, including maintaining and expanding settlements, reconstructing associated infrastructure, exploiting natural resources, proclaiming Jerusalem as Israel’s capital, and its extensive application in the West Bank, serve to entrench its control over the oPt.
- The Court held that these policies and practices are designed to remain indefinitely and have irreversible effects on the ground, constituting annexation of large parts of the oPt. This contravenes the prohibition of the use of force and the principle of non-acquisition of territory by force.
- The Court stated that Israel is not entitled to sovereignty over any part of Palestinian territory, and its security concerns cannot override the principle prohibiting the acquisition of territory by force.
- The Palestinian people’s right to self-determination is inalienable and cannot be subject to conditions. Israel’s continued presence in the occupied Palestinian territory (oPt) violates the prohibition against acquiring territory by force and infringes upon the Palestinians’ right to self-determination. The Israeli presence in the occupied territory is unlawful due to its permanent control and ongoing frustration of the Palestinian people’s right to self-determination, and Israel is obligated to end it as rapidly as possible.
- The Court stated that Israel is obligated to provide full reparation for its wrongful acts, including restitution and compensation. Restitution involves returning land, immovable property, and all assets since 1967, including cultural property and assets. Israel is also required to evacuate all settlers from existing settlements, dismantle parts of the wall in the oPt, and allow all Palestinians displaced during the occupation to return to their original residences.
- The Court considered that the United Nations, particularly the General Assembly and the Security Council, should consider specific modalities and further actions required to end Israel’s unlawful presence in the oPt as rapidly as possible.
- The Court concluded that Israel’s policies and practices violate Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, specifically the prohibition against segregation and apartheid. Israel is obligated to cease all unlawful acts, halt new settlement activity immediately, repeal all legislation creating or maintaining the unlawful situation, and end measures aimed at altering the demographic composition of the oPt.
- The Court also found that Israel must make reparation for damages caused to all natural or legal persons in the occupied Palestinian territory.
- The Court determined that all states are obligated not to recognize as legal any situation arising from Israel’s unlawful presence in the oPt and not to provide aid or assistance to maintain Israel’s presence there.
