Whatever the outcome, the ICJ's stand on Israel's occupation of Palestine matters

Last month, the International Court of Justice (ICJ) issued an opinion on Israel’s continued occupation of Palestinian territory, and various activities it engages in there. The ICJ had been deliberating on this ever since it was asked to do so by the UN General Assembly in December 2022.

Even though the advisory opinion was first solicited more than two years ago, it holds more significance than ever today, in light of the ongoing catastrophic disaster unfolding in Gaza. Resolving that disaster has become even more difficult given the events of the past week, from escalations in Israel’s related conflict with Hezbollah in Lebanon, to the assassination of top Hamas operative Ismail Haniyeh.

As this conflict progresses, however, it is undeniable that the prolonged occupation of Palestinian territory and the deprivation of the Palestinian people from exercising their fundamental rights are the root cause of the current situation. That is why it is worth understanding what the world’s top court makes of the occupation, which has become a foundational issue of the contemporary situation in Palestine.

The Court looked at two questions. The first concerned the legal implications arising from Israel’s continued violations of the Palestinian people’s right to self-determination through its prolonged occupation, settlement activities and the annexation of Palestinian land, as well as measures aimed at altering the territory’s demographic composition. Within that scope, it also considered the impact of discriminatory laws and measures adopted by Israel.

The second question examined how these policies affect the legal status of the occupation and the subsequent legal consequences for all states and the UN. That is to say, the UNGA wanted to understand the broader international legal ramifications and the responsibilities of the global community in response to Israel’s actions.

The ICJ’s opinion, issued on July 19, was unequivocal. The Court repeated forcefully that Israel’s creation of settlements in occupied areas of Palestine blatantly violates international law, notably the Fourth Geneva Convention. These settlements have led to the displacement of Palestinian civilians, the confiscation of their land and encroachment on their fundamental human rights.

Will the Court’s words really make a difference, however? That question has been asked often since the start of the case. After all, the ICJ’s advisory opinions are, as the name suggests, not “legally binding”. It is, the Court says, “for the UN…to give effect to them or not”.

That does not, however, mean such opinions are toothless. In reality, the ICJ’s advisory opinions play a very important role in both shaping and helping the world to better understand international law. And by extension, they help us understand, as an international community, what we know to be right or wrong. Throughout the history of international relations, in fact, there are plenty of examples of areas of international law that stem from ICJ advisory opinions.

It is worth noting, too, that the very fact that the UN General Assembly even referred the matter to the Court is significant. It demonstrates the commitment of the international community to upholding the principles of international law and seeking clarity on this very complex legal issue.

The Court did not accept this case lightly. Before doing so, it meticulously examined various crucial factors. These included jurisdictional considerations, the Court’s discretion on providing such an opinion in the absence of the parties’ consent, the presence of any compelling reasons that may warrant refraining from giving an opinion, the availability of sufficient information and any potential bias in the formulation of the question. It’s a lot to take into account.

The Court also assessed whether rendering such an opinion might undermine any ongoing or future negotiations between Palestine and Israel, or affect the workings of the Security Council.

One of the areas of international law that is frequently debated when it comes to Palestine and Israel is occupation law: whether and how countries may occupy foreign territory.

The ICJ, in its opinion, emphasised the inherently temporary nature of occupations. Occupation law primarily serves to govern the relationship between occupying powers and the occupied without entailing any transfer of sovereignty to the occupying entity.

For decades, Israel and many of its allies have insisted the occupation is temporary, dancing around various facts on the ground that the ICJ has clearly indicated point to its permanence. And permanence of occupation is illegal. The Court noted, in this case, the prolonged duration, spanning more than 57 years.

The actions Israel has taken to manifest that permanence, moreover, breach international human rights laws, the Hague Regulations and the Fourth Geneva Convention. Certain policies, including the confiscation of Palestinian natural resources, the seizure of Palestinian land, the forced displacement of Palestinian communities, the expansion of Israeli settlements and discriminatory legal practices under Israeli law extended over the occupied territories are but a few examples.

The Court concluded, after considering a wide array of allegations and evidence, that these measures have been designed by Israel to remain in place indefinitely and to create irreversible effects on the ground. And that, in the Court’s view, deprives the Palestinian people of their right to exercise self-determination.

In international law, the illegal nature of Israel’s occupation itself does not absolve Israel of its responsibilities and obligations as an occupying power. The Court points out that Israel is obligated to provide full reparations for the damage its wrongful occupation has caused, and that the international community has obligations, too.

Other countries, as well as the UN and other international organisations, are under a binding obligation not to recognise Israel’s occupation as lawful. That guidance will be important as the UN plays a role in any future efforts to bring peace between Palestine and Israel.

The advisory opinion’s most powerful effect, perhaps, is that it cements an already large consensus in the international community that Israel’s presence in the Occupied Palestinian Territories is not just a violation of the world’s agreed-upon laws, but an act of deprivation against Palestinians fundamental human rights.

As the conflict in Gaza continues, and as mediators continue to work towards bringing about a peace process that will hopefully lead to more steps that bolster the rights of Palestinians, a firm opinion by the world’s highest court on where the law stands is a critical step in the right direction.

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