The 2024 ICJ Advisory Opinion on the Occupied Palestinian Territory – An Introduction

The recent Advisory Opinion of the International Court of Justice (ICJ) on the “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem” (AdvOp) offers a comprehensive analysis of the (un)lawfulness of Israeli policies and practices in the Occupied Palestinian Territory (OPT). It thereby goes well beyond the 2004 Palestine Wall Advisory Opinion which limited itself to an assessment of the legality of the Wall without however providing a full-fledged legal analysis of the Israeli occupation. Now the Court finds that the series of individual violations of International Humanitarian Law (IHL) and International Human Rights Law (IHRL) – inter alia, Israel’s settlement policy, annexation/acquisition of territory by force, adoption of discriminatory legislation and measures, and denial of Palestinian self-determination (AdvOp, para. 103 ff.) – have cumulatively turned the arguably ab initio lawful occupation into an unlawful one (para. 244 ff.). This finding of unlawfulness results in Israel’s obligation to withdraw from the OPT “as rapidly as possible” (para. 261, 267). What is more, the occupation’s unlawfulness renders it an international wrong under the Law of State Responsibility. As such, the decision has consequences not only for Israel, but also for third States as well as international and regional organisations in terms of non-recognition and non-cooperation (para. 265 ff.).

The UN General Assembly (GA) has affirmed and welcomed the AdvOp by Resolution A/RES/ES-10/24 adopted on 18 September 2024 with 124 votes in favour, 14 against and 43 abstentions (see here; for the explanations of votes [incomplete] see here; for Germany [abstaining] see here). These introductory remarks are not the place to undertake a closer analysis of this Resolution but it should be pointed out that the GA goes beyond the AdvOp in at least two respects. First, it demands an end of the occupation not only “without delay” but, more concretely, “no later than 12 months from the adoption of the present resolution” (para. 2). Secondly, it demands compliance from Israel not only with regard to the AdvOp (e.g. regarding the cease of settlement activity and evacuation of settlers) but also with regard to the ICJs provisional measures orders in the South Africa v. Israel case (para. 3(f)).

The AdvOp has received considerable attention in the international media and the legal blogsphere (see especially EJIL: Talk!, Just Security and Opinio Juris), including the respective podcasts. However, the discussion has remained piecemeal and ad-hoc so far. With this Symposium, we seek to provide a more systematic and comprehensive coverage of this landmark decision that reflects a diversity of perspectives and brings together both Israeli and Palestinian voices. We can now happily present the result of this joint effort to the public: a total of 18 contributions, mainly written by scholars with an Israeli and Palestinian background and by a few from Egypt, Germany, India and Singapore. The contributions cover fundamental political, historical, and ethical aspects of the Israeli-Palestinian conflict, address the legal questions surrounding the Israeli occupation, the relevance (or lack thereof) of security considerations and the legal (and political) consequences of the unlawfulness of the occupation as well as some discrete issues such as the relevance of the AdvOp for International Criminal Law (ICL), the question of apartheid and Israeli domestic law.

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In the following I will summarize the key propositions of the posts (as, essentially, provided by the authors) in the order they will be published from today on (two per day).

David Kretzmer argues that the principle uti possidetis juris, raised in the Dissenting Opinion of Vice-President Sebutinde and according to which a new State established in formerly colonial territory inherits the former (colonial) borders is untenable in the situation of Israel. The reason is that at the time of independence Israel’s leaders accepted the principle of partition. No claim was made then or subsequently that the State of Israel inherited the borders of Mandatory Palestine and legislative acts reveal that Israel even regarded territories not within the UN Partition Plan borders as occupied territory.

Omar Yousef Shehabi discusses the impact of the AdvOp on a negotiated settlement. In his view the Opinion, in pronouncing that the Palestinians’ right of self-determination is a peremptory norm which must be realised without conditions set by Israel as occupying Power, rejected the premise that this right can exclusively be fulfilled through bilateral negotiations. By logical extension, the Opinion calls into question the continued viability of the interim arrangements in the OPT set by the Oslo Accords.

Barak Medina takes issue with the Court’s central finding that the occupation is illegal and thus Israel the aggressor which implies that an end to the conflict depends solely on Israel withdrawing from the OPT. He challenges the Court’s choice to not even consider the possibility that the occupation is a means of self-defense invoking the doctrine of double effect.

For Ardi Imseis the AdvOp constitutes a seismic change in international law and practice on the question of Palestine, in so far it has shifted what was hitherto an almost exclusive focus on how Israel has administered its 57-year occupation of the OPT under IHL and IHRL, to the requirement that Israel end its occupation of that territory unconditionally and as “rapidly as possible”. In addition, the Opinion stands out as the first time an international judicial authority has broached the subject of whether and under what circumstances a belligerent occupation of foreign territory can become unlawful over time through widespread and systematic violations of fundamental norms of international law, heralding an implied collapse of the jus ad bellum and the jus in bello distinction.

Jasmine Moussa analyses the separation between jus ad bellum / in bello as arising from the AdvOp. While the separation is widely regarded as axiomatic, it was challenged by many States appearing before the Court, some of which implied that Israel’s policies and practices, as violations of jus in bello, rendered the occupation unlawful under jus ad bellum. This line of reasoning also appeared in the separate Opinion of at least one of the Judges and several commentators on the subject. The Court ultimately reaffirmed the separation with a twofold argument, namely qualifying the ‘legality of the occupation’ as a jus ad bellum question, and framing Israel’s policies and practices (prolonged occupation, annexation, and settlement policy) as violations of jus ad bellum. While the Court rightly concludes that Israel’s continued occupation of the OPT violates the prohibition of acquisition of territory through force, the AdvOp is a missed opportunity to clarify the limits of necessity and proportionality in relation to occupation.

Ariel Zemach argues that the Court’s determination that Israel’s annexation policies render its continued presence in the West Bank unlawful finds no basis in the international prohibition against the use of force. Moreover, the Court’s determination circumvents the Law of State Responsibility that determines the consequences of Israel’s unlawful annexation policies.

Aeyal Gross finds that the ICJ has de facto adopted the functional approach to occupation with regard to Gaza. The Opinion is thus a critical point in the development of the law of occupation, in that it transcends a binary approach to the question of the existence of occupation, in favour of a more nuanced approach that enables holding that a territory is occupied, but not in an “all or nothing” way. More generally, Gross sees the Opinion as rejecting a more restrictive approach to the question of whether occupation exists in a territory or not in favour of a more flexible approach.

Shastikk Kumaran criticizes the Court’s (ambiguous) finding with regard to Gaza. In his view the Court wrongly relied on purely “external” methods of control and that it should have referenced Israel’s exercises of administrative authority over Gazans. The Court’s approach also exposes a lacuna in the protection available for civilians in “enclosure” situations such as sieges.

Yuval Shany and Michael Cohen discuss three possible rationales for the Court’s rejection of the relevance of Israel’s security concerns: Lack of proof of serious and legitimate security concerns by Israel, the insufficiency of broad security concerns to justify the continued use of force and the insufficiency of broad security concerns to deny realization of Palestinian self-determination. The authors stipulate that as long as international law doctrine on the duty to end a belligerent occupation despite the prevalence of serious security concerns remains contested, and as long as security conditions in the region remain extremely unstable, it is unlikely that a withdrawal will be deemed practicable – putting aside other political and legal considerations concerning Israel’s presence in the area. They therefore prefer the approach taken by the minority judges – Judges Tomka, Abraham and Aurescu – which in their view mediates better than the majority’s approach between a possible interpretation of international law norms, the prevailing diplomatic framework (which calls for negotiated security arrangements) and the very real security concerns of Israel.

Jinan Bastaki also deals with the alleged Israel security concerns to justify its occupation of the OPT as well as its practices against Palestinians in the OPT. Yet, Bastaki stresses that, while international law accepts that States may employ otherwise prohibited actions in exceptional circumstances and within certain constraints, the AdvOp firmly affirms that security cannot justify illegal actions such as annexation or prolonged occupation, emphasizing that Israel’s security interests cannot override established legal principles. The author further discusses the Court’s rejection of Israel’s security arguments, reaffirming that the rights of the Palestinian people, including their right to self-determination, cannot be compromised by security claims. Overall, the Opinion serves to limit State practices predicated upon security when those practices violate essential rights and when the security claim is based upon an illegal situation created by the very State which invokes security concerns.

Yael Ronen takes issue with the Court’s instruction that States are under an obligation “not to recognize as legal the situation arising from the unlawful presence of the State Israel in the Occupied Palestinian Territory” (para. 279). She argues that this is an obligation without substance, because presence as an occupant, even if maintained illegally, is – unlike purported annexation – a factual situation.

Yussef Al Tamimi and Andreas Piperides discuss possible implications of the AdvOp for the United Kingdom (UK) and Cyprus with regard to the UK’s arms and surveillance support to Israel through its military bases in Cyprus. The authors argue that the third State obligations identified by the Court, including the duty not to render aid or assistance in maintaining the illegal situation, also apply to the current war in Gaza.

Matthias Goldmann also analyses the obligations of non-recognition and non-assistance of other UN Member States with respect to the OPT. While uncertainties regarding the legal basis of such obligations may be resolved, it remains unclear, he argues, how to draw the line with regard to forms of assistance that indirectly contribute to occupation, particularly military cooperation.

Maryam Jamshidi analyses the possibility of unseating the Israeli Government from the UN General Assembly in case of non-compliance with the Advisory Opinion of 19 July 2024. She argues that the AdvOp provides a particularly strong legal basis – grounded primarily in the right to self-determination – to unseat Israel’s government from the General Assembly until it complies with the Opinion – as the Assembly did with South Africa fifty years ago.

Mohamed El-Zeidy focuses on the legal findings of the ICJ concerning the Oslo II Accord, and argues in favour of its relevance in deciding the jurisdictional question raised by the UK before the International Criminal Court (ICC). The author also addresses whether invoking this question through a procedure of an amicus curiae during the warrant of arrest stage fits neatly within the ICC’s procedural regime, and it concludes that it does not.

Florian Jessberger and Kalika Mehta argue that the AdvOp, although not framed in the international criminal law paradigm, may have implications for the ongoing Palestine situation before the ICC and potential domestic prosecutions for the commission of international crimes based on the principle of universal jurisdiction. This concerns, inter alia, the elements of crimes against humanity of apartheid and forcible transfer. Taking in addition earlier decisions of the ICJ into account, such as on genocide (from Serbia/Bosnia to Ukraine and Gaza), it appears as if the ICJ is on the verge of becoming, reluctantly perhaps, a protagonist of international criminal justice.

Victor Kattan argues that, reading between the lines, the expression ‘systemic discrimination’, which the Court referred to in para. 223 of the AdvOp, was used as a synonym for ‘apartheid’, even though the Court did not link this description to a breach of Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), but there does not appear to be any substantial difference between apartheid and systemic discrimination. This is because the word ‘systemic’ is associated with crimes against humanity which is how apartheid is defined as a crime in international law.

Tamar Hostovsky Brandes examines the relationship between the AdvOp and Israeli law with respect to the duty to distinguish between Israel and the OPT. She argues that while the Opinion requires States to distinguish between Israel and the OPT in their dealings with Israel, and to omit acts that may strengthen Israel’s hold of the Territories, calls for such distinction are a civil tort under Israeli law and those making them can be denied entry to Israel. As a result, Israelis are unlikely to support the Opinion. This will contribute to the growing gap between the international discourse and the domestic discourse in Israel with respect to the OPT.

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We hope that this joint symposium stands as a positive counterexample to the general climate of silencing, censorship, and distrust, which is widely felt in the current academic and non-academic discourse in Germany and elsewhere (see also here). By bringing together a diversity of perspectives from scholars with a variety of backgrounds, we hope to enable a more open and constructive dialogue with respect to the issues this Symposium discusses.