On 30 December 2022, the UN General Assembly passed resolution A/RES/77/247 in which it asked the International Court of Justice (ICJ) to opine on two questions:
First, what are the legal consequences arising from the violation of the Palestinian people’s right to self-determination by Israel’s prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967 (OPT), 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?
Second, how do these Israeli policies and practices affect the legal status of the occupation, and what are the legal consequences that arise for all States and the UN from that status?<
On 19 July 2024, 20 years and 10 days since the ICJ rendered its Wall advisory opinion, the world court delivered a bombshell. All ICJ judges agreed that the above questions fall with the court’s jurisdiction and all but one of the 15 judges (Vice-President Sebitunde) decided that the court should comply with the request for an advisory opinion (given it has discretion whether to do so). The same resounding majority found that ‘Israel is under an obligation to cease immediately all new settlement activities, and to evacuate all settlers from the OPT’ and that it ‘has the obligation to make reparation for the damage caused to all the natural or legal persons concerned in the OPT’.
A smaller yet significant majority, 11-4 (Vice-President Sebitunde joined by judges Tomka, Abraham, and Aurescu) found that ‘Israel’s continued presence in the Occupied Palestinian Territory is unlawful’ and that it ‘is under an obligation to bring to an end its unlawful presence in the OPT as rapidly as possible’. The court reached this conclusion in light of the violation of two key principles of international law: the prohibition of the acquisition of territory by force and the right of peoples (in this case, the Palestinian people) to self-determination. The aims and realities of the settlement project in cementing Israel’s presence in the OPT rendering the occupation’s temporariness a façade, and in instituting a discriminatory regime whereby two populations, Israelis and Palestinians, living in the same occupied territory, are subject to different legal regimes, played a crucial role in the court’s determination that the entire Israeli presence in the OPT has become illegal.
When it comes to the responsibilities of other states, by a 12-3 majority (Vice-President Sebitunde joined by judges Abraham and Aurescu) the ICJ found that
‘all States are under an obligation not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the OPT and not to render aid or assistance in maintaining the situation created by the continued presence of the State of Israel in the OPT’.
They also found that:
‘international organisations, including the United Nations, are under an obligation not to recognise as legal the situation arising from the unlawful presence of the State of Israel in the OPT.’
Finally, they found that:
‘the United Nations, and especially the General Assembly, which requested this opinion, and the Security Council, should consider the precise modalities and further action required to bring to an end as rapidly as possible the unlawful presence of the State of Israel in the OPT.’
This advisory opinion is ground-breaking: by ripping the mask of temporality off the face of Israel’s prolonged occupation, by identifying the settlement project as its core ongoing harm, and by highlighting the critical role the international community (can and must) play in bringing the unlawful situation to a rapid end.
The opinion has legal and political consequences. Recognition of the State of Palestine which this party has consistently supported, is necessary but not sufficient. The opinion imposes an unequivocal obligation on all governments, including the UK’s, not to ‘render aid or assistance in maintaining the situation created by the continued presence of Israel’ in the OPT. Notably, the court ordered settlement activities to cease ‘immediately’ whereas the occupation as a whole must be brought to an end ‘as rapidly as possible’. Hence, to pick an obvious example, a ban on settlement products, a policy which this party adopted at its Autumn 2021 conference, is arguably now an international legal requirement.
In all likelihood, Israel will persist with its unlawful presence in the OPT rather than seek to bring it to an end; in such circumstances, all other UN member states must take measure to compel Israel to bring the settlement project to an immediate halt, as well as chart a course to the termination of the occupation of the OPT. Permanent members of the UN Security Council, the actor which holds primary responsibility for international peace and security, bear special responsibility. While the US is likely to veto any UN Security Council resolution which seeks to implement this opinion in full or in part, the UK must demonstrate its commitment to the rule of international law by vowing to comply with its obligations arising from this opinion. The Labour government’s feet must be held to the international legal fire.
* Dr. Ruvi Ziegler is Associate Professor in International Refugee Law at the University of Reading. He is an Advisory Council member of Liberal Democrats for Seekers of Sanctuary.
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10 Comments
Ruvi’s article rightly describes yesterday’s ICJ rulings as ground-breaking, although no-one should be surprised that 650,000 settlers in the West Bank constitutes a breach of Article 49 of the Fourth Geneva Convention, or that the oppressive regime imposed by Israel for the past 57 years breaks other elements of international human rights law.
Israel has, of course, rejected it out of hand, but the big question now is how are other countries going to compel Israel to abide by the ICJ rulings, because they are included in the judgement – the law requires them to end their complicity in the Occupation, and to take active steps to end it. The USA, the UK and Germany are among the countries which didn’t want the ICJ to get involved, although in our case we have had a change of government since we tried to block ICJ intervention. As Ruvi implies, Labour don’t have a good record on the Gaza war or the Occupation, and may need to be reminded that the highest court in the world has spoken.
Thank you for this analysis. The ruling has been a long time coming and is welcome. But sadly for the Palestinians in the West Bank and East Jerusalem (and even in Gaza where it is difficult to imagine a worse situation), the pattern is always the same. Any criticism of Israel leads to increased levels of settler and IDF violence and actions against the Palestinian population such as the denial of water resources, additonal demolitons of Palestinian property and increased settlement activity.
Until the UK and USA take real measures such as sanctions that actually hurt Israel, the cessation of weapons supply by both the USA and the UK as well as of the huge sums of money poured into Israel annually by the USA, things will only get worse, at least in the short term.
There is also the terrifying question of what a Trump Presidency would do …….
As far as I am aware the borders of Israel with Egypy and Jordan are recognised by International treaty but the boders with Lebanon, Syria and the Palestinian tereitories remain contested. The Lebanon and Syria borders are a matter for negotiation with those respective states. The recognised border with the Palestininan territories (the sibject of this ICJ opinion( is, I believe, based on the 1949 armistice line – the so caled Green line.
The ICJ finding that ‘the United Nations, and especially the General Assembly, which requested this opinion, and the Security Council, should consider the precise modalities and further action required to bring to an end as rapidly as possible the unlawful presence of the State of Israel in the OPT.’
For the UK those modalities and further action are set out in the Bakfour conference concluding statement on pages 3 and 4 https://balfourproject.org/bp/wp-content/uploads/2021/12/Balfour-Project-Rule-of-Law-Conference-2021_compressed.pdf. They are:
1. Uphold equal rights for all in Israel and Palestine.
2. Recognise the State of Palestine now alongside Israel, along pre-June 1967 lines.
3. Reaffirm publicly that the systematic, illegal annexation of Palestinian land is destroying the premise of British policy – two independent, sovereign states – and must be reversed.
4. Affirm that international law must apply in deed, not just in word.
5. Put into UK domestic law the principle that Israel should not benefit economically from its de facto annexation of Palestinian land.
Centrist governments support the rules of international order.
Sadly , when it comes to the Palestine those rules , those values , have all but been abandoned ..Nothing more obvious this week than the glaring hypocrisy on full show at the European leaders summit.
The Palestinians have an enduring policy of resistance to, and delegitimizing of, Israel. Only when they have unambiguously and unequivocally abandoned this policy and can provide absolute guarantees of Israel’s security will any permanent settlement in the region be possible. In the meantime judgments such as this simply play to the Palestinians’ false narrative of victimhood.
Some of us have been complaining about this situation for a number of years, but even “pro-Palestinians” have been reluctant to seriously challenge the Party to stand up for fundamental Palestinian rights. There has been far too much emphasis on recognising “wrong on both sides”, ( the ethnic cleansers and ethnically cleansed). I suspect a strong resistance still to name ethnic cleansing and genocide as what they are.
Judeo- Christian Zionism is not going to accept this “landmark ruling” – no matter who occupies the White House. Who in the world is going to stop the Zionists’ total colonisation of ancient Zion, (including parts of Jordan and Egypt. Who could be prepared to stand up to the USA’s Trump- loving, huge Christian Zionist and Evangelical lobby, (and those Jews who back colonial Zionism). We ignore Christian Zionism’s fervent believers in End-of-times theology at our peril. There are those who would welcome Armageddon. I’m convinced that many in the USA regard Trump as the Antichrist.
From Haaretz vis JFJFP:
https://jfjfp.com/israels-continued-denial-of-the-reality-of-the-occupation-will-be-its-ruin/
So it’s the Palestinians’ fault for resisting’….
“Fundamental Palestinian rights” must include rights against the Palestinian leaders, especially Hamas. If you are gay, female, non-Muslim or the wrong sort of Muslim you don’t have many rights in Hamas-controlled territory.
John, I don’t quite follow your reasoning here in saying “I’m convinced that many in the USA regard Trump as the Antichrist.” after noting the USA’s Trump- loving, huge Christian Zionist and Evangelical lobby.
There is no shortage of religious nutjobs in the strange cult of Trump or in the middle-east, Israel incuded.
Seemingly rational people can ignore completely the evidence of their own eyes and ears and make statements like “Trump never lies” or “Israel does not bomb civilans”,
A war of aggression i.e. a military conflict waged without the justification of self-defense (usually for territorial gain and subjugation) is unlawful. That contrasts with the concept of a just war which Israel claims as the basis for prosecuting its actions in the Gaza strip, apparently with the widespread support of the Israeli public (Zionists and Liberals alike).
Perhaps the answer for both Israelis and Palestinians lies with the worrds of Ernest Hemingway, in “For whom the bell tolls” when he wrote ““Never think that war, no matter how necessary nor how justified, is not a crime. Ask the infantry and ask the dead.”
The fact remains that as long as Israel perceives its existence is under threat it will do what it deems necessary to preserve its territory. So the question becomes how can the international community convince Israel that its territory is not under threat. Presumably when the other forces in the region decide that a comprehensive cease fire and settlement is in their interests.