by Susan Nicholson
Remarks presented at the Community Encampment for Palestine, Lynn, MA, September 28, 2024
First of two articles
Two recent ground-breaking developments at the international level provide important tools for Palestine advocacy:
(1) the July 19 Opinion issued by the International Court of Justice (ICJ) concluding that Israel’s prolonged 57-year occupation of the West Bank, East Jerusalem and Gaza is unlawful; and
(2) the Resolution passed this September 18 by an overwhelming majority of the United Nations General Assembly (UNGA) affirming and implementing that Opinion.
This article discusses the July 19 ICJ opinion; the second article in the series will discuss the UNGA resolution.
The July 19 opinion is separate and distinct from the ICJ case initiated last year by South Africa accusing Israel of Genocide against the Palestinians of Gaza.
Before getting into the discussion, it’s helpful to make a basic distinction between settlements and occupations.
The two are related but not identical. There can be an occupation without settlements, but no settlements without an occupation.
All settlements are illegal under Article 49 of the 4th Geneva Convention. Article 49 prohibits an occupying power – in this case Israel – from transferring parts of its own civilian population into the territory that it occupies – in this case, the Palestinian Territories comprising the West Bank, East Jerusalem, and Gaza.
Consequently, when in 1967 Israel militarily conquered those areas and almost immediately began moving some of its own civilians into them, those settlements were unlawful from Day 1. This is well established under international law.
Not so with the Israeli occupation. Occupations are not illegal in and of themselves. There is no provision of international law that says occupations are unlawful. There are provisions of international law that specify the obligations of occupiers, what they can and cannot do with respect to the occupied population (all of which Israel routinely disregards). But there is nothing saying that occupations themselves are unlawful. Occupations are in fact recognized as temporary arrangements, following a military conflict, during which the opposing parties are supposed to work out a final resolution of all their issues. So unlike settlements, the Israeli occupation was not unlawful in and of itself from Day 1.
But, one may object, the Israeli occupation has lasted 57 years with no end in sight!
Which is precisely why in December 2022, over Israel’s vehement objections, the UNGA voted to ask the International Court of Justice for its Opinion on whether, given Israel’s policies and practices over the past 57 years, Israel’s occupation had become unlawful.
Now I know it will seem obvious to most if not all of you that the answer to this question is a resounding “Yes!”
Nevertheless the 83-page ICJ Opinion reaching that same conclusion has been described as “arguably the most important legal document on the Israeli occupation” since the occupation began in 1967.
Background on the International Court of Justice (ICJ)
Before explaining the Court’s reasoning, I want to give some brief background about the ICJ.
The ICJ, sometimes referred to as the World Court, is the principal judicial organ of the UN. It is comprised of 15 judges who are supposed to function independently and not as representatives of the political views of the country from which they are drawn.
So while the US representative to the UNGA is expected to vote in line with the political views of the US administration, the US judge on the World Court is not. Rather, she (Judge Sarah Cleveland) is expected to be independent, reaching her own conclusions based on an impartial reading of the law and relevant facts.
The current composition of the Court includes judges from France, Germany, China, India, Japan, Australia, Somalia, Brazil, South Africa, Slovakia, Uganda, Mexico, Romania, and the US. The current president is Lebanese.
In the months that followed the request from the GA, an unprecedented 50 States and several international organizations, together with the UN Secretary General, testified at 6 all-day hearings and provided the Court with extensive written statements and materials concerning Israel’s policies and practices in the Occupied Palestinian Territories (OPT).
In terms of what comprises the OPT, the Court included Gaza along with the West Bank and East Jerusalem. While some have argued that Gaza had not been occupied since 2005 when Israel withdrew its soldiers and settlers, the Court stated that for purposes of international law, the issue is not whether the occupying power retains a physical military presence in the territory but rather whether it exercises its authority there.
Recognizing that Israel continues to control Gaza’s land, sea and air borders, impose restrictions on movements of people and goods, collect export and import taxes, and exert military control over the buffer zone (all of which control has of course vastly increased since Oct 7) the Court concludes that Gaza should still be considered occupied. However, in this opinion the Court did not consider what has happened in Gaza since October 7, 2023, since that is after the date of the GA request.
The main features of Israel’s policies and practices in the OPT are well reflected in the Court’s Opinion. As most of you are very familiar with these practices, I’ll give only a single example.
Israel has a practice of destroying Palestinian homes, schools and infrastructure to make way for settlements or, less frequently, as collective punishment (itself illegal under international law). Under the law of occupation, an occupying power is obligated to administer the occupied territory for the benefit of the occupied population, and is strictly prohibited from destroying property except where absolutely necessary for military operations. The Opinion notes Israel has destroyed some 11,000 Palestinian structures in the West Bank and E. Jerusalem since 2009.
In its Opinion, the Court surveyed the cumulative effect of this and a myriad of similar examples, including
- Israel’s expansion of illegal settlements to accomodate 700,000 settlers
- Construction of associated settlement infrastructure, including large portions of the Wall built within the OPT
- Extensive confiscation of land, water and other natural resources for the exclusive benefit of settlements
- Forcible displacement of Palestinians, whether by physical force or by leaving them no choice but to leave
- Comprehensive application of Israel domestic law in East Jerusalem and extensive application in the West Bank
Based upon this survey, the ICJ reached a key conclusion: Israel’s practices and policies “are designed to remain in place indefinitely and to create irreversible effects on the ground.”
As such, the Court found that Israel’s practices and policies amount to annexation. Rather than temporary control of a territory compatible with occupation, Israel’s intention, the Court said, is to assert permanent control over that territory, to establish sovereignty over it, whether de facto or de jure.
But according to the UN Charter, the acquisition of territory by force is strictly prohibited. Therefore, the Court concludes, Israel’s continued presence in the OPT is itself unlawful and must end.
So it’s not just that Israel is failing to meet its legal duties as an occupying power, but that the occupation itself amounts to annexation, which is unlawful.
In other words, Israel doesn’t just have to clean up its act in the OPT, it has to leave. Entirely.
It goes without saying that Israel’s security needs cannot justify violation of the UN Charter.
Here, then, are the key ICJ conclusions:
- Israel’s continued presence in OPT is unlawful (by an 11-4 vote, including judges from Germany, India, Japan, Australia and US)
Israel must:
- Bring its unlawful presence in OPT to an end as rapidly as possible (11-4, same as above)
- Immediately cease all new settlement activity, and furthermore evacuate the settlers (all 700,000 of them) from existing settlements (14-1, virtually unanimous with only the judge from Uganda dissenting)
- Make reparations for the damage caused by its wrongful acts (14-1)
All States must:
- Not recognize as legal the presence of Israel in the OPT, and not render aid or assistance in maintaining Israel’s illegal presence in the OPT (12-3)
Several important statements in the body of the Opinion are not reflected in these formal conclusions. For instance, that Israel must dismantle the sections of the Wall built within the OPT. Also that Israel must allow all Palestinians displaced during the occupation to return to their original place of residence – which amounts to a limited right of return.
The Opinion is advisory only, that is, it is not legally binding. Nevertheless, it is a definitive pronouncement, by the highest court in the world, of what is required of Israel under important principles of international law . And these principles – like the UN Charter and the 4th Geneva Convention – have been accepted by Israel and are binding upon it.
In summary, as Middle East analyst Mouin Rabbini put it, the international community has asked the world’s highest court to issue a ruling on the status of Israel’s occupation, and the court’s answer is that Israel’s very presence in the OPT is unlawful. It’s hard to think of a more significant legal document.
In the next article, I will the address the Resolution passed this September 18 by an overwhelming majority of the United Nations General Assembly (UNGA) affirming and implementing that Opinion.
Susan Nicholson is a retired health law attorney and a member of MAPA’s Gaza Israel Peace Campaign.