The ICJ Advisory Opinion and Israeli Law
The ICJ Advisory opinion and the duty to distinguish between Israel and the Occupied Territories
On July 19, 2024, the International Court of Justice (ICJ) delivered its Advisory Opinion regarding the “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem”. The Court determined that Israel violated international law in various ways, including by using the Occupied Palestinian Territories for the benefit of its own citizens and by annexing part of the Territories. The Court further concluded that Israel’s control of the Territories is illegal under international law.
The Opinion raises many questions regarding the legal consequences for Israel. However, in this blogpost, I will focus on the legal consequences of the Opinion for other States, and on the relationship between the Court’s conclusions in this regard and Israel’s internal law. The Court requires States to distinguish in their interactions with Israel between Israel and the Occupied Palestinian Territories, and to ensure that their interactions with Israel do not support Israel’s control of the Territories and specifically the settlement project. However, calling for such a distinction or committing to it amount to a civil law tort in Israel, and the law determines that those who call for the distinction will not be permitted to enter Israel.
The legal consequences of the Opinion for other States are discussed in para. 273-279 of the Advisory Opinion. The Court observed that the obligations violated by Israel include certain obligations that are erga omnes. “Such obligations”, the Court explains, are by their very nature “the concern of all States” and “[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection”. The Court noted the obligation of States to cooperate with the relevant UN bodies to ensure the right of Palestinians to self-determination, and the obligation not to recognize any change of status of the Territories (on the non-recognition obligation see also Ronen in this symposium). The obligation with perhaps the most practical implications, however, is the obligation to distinguish between Israel and the Territories. With respect to this obligation, the Court referred to GA 74/11 (2019), which called upon states “Not to render aid or assistance to illegal settlement activities, including not to provide Israel with any assistance to be used specifically in connection with settlements in the occupied territories” (para. 227) and specified that in its own opinion, the duty to distinguish included
“the obligation to abstain from treaty relations with Israel in all cases in which it purports to act on behalf of the Occupied Palestinian Territory or a part thereof on matters concerning the Occupied Palestinian Territory or a part of its territory; to abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory or parts thereof which may entrench its unlawful presence in the territory; to abstain, in the establishment and maintenance of diplomatic missions in Israel, from any recognition of its illegal presence in the Occupied Palestinian Territory; and to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory” (para. 278).
These exact requirements, however, bear repercussions under Israeli law.
The erosion of the distinction between Israel and the Occupied Territories in Israeli Law
The Boycott Law
In 2011, the Israeli Knesset passed the Law for Preventing Harm to the State of Israel by means of Boycott. Article 2(a) of the Law determines that:
“He who knowingly publishes a public call for a boycott against the State of Israel, where according to the content and circumstances of the publication there is reasonable probability that the call will lead to a boycott, and he who published the call was aware of this possibility, will be considered to have committed a civil wrong to which the Civil Tort Law [new version] is applicable”.
Article 3 of the Law allows limiting the participation in a public tender of “he who knowingly published a public call for a boycott against the State of Israel, or who committed to take part in a boycott, including a commitment not purchase goods and/or services produced and/or provided in Israel, by one of its institutions, or in an area under its control.” While the Law formally addresses the problem of boycotts against Israel, the key for understanding its purpose and motivation lies in the definitions clause. Article 1 defines a boycott against the State of Israel as:
“deliberately avoiding economic, cultural or academic ties with another person or body solely because of their affinity with the State of Israel, one of its institutions or an area under its control, in such a way that may cause economic, cultural or academic damage”.
The term “an area under its control” refers, of course, to the Occupied Territories. The law thus renders calls for boycott of the settlements or their products as a tort subject to liability in Israel, framing calls for boycotts of settlement products as “harm to the state of Israel”, and delegitimizing calls to distinguish between the Territories and Israel proper.
The legal debate around the law revolved, for the most part, on its implications for Freedom of Expression. In the 2015 case of Avneri, the High Court of Justice invalidated section 2(c) of the Law, which authorized courts to impose punitive damages, but upheld the rest of the Law. Justice Melcer, who wrote the main majority opinion, explained that while the Law indeed violated freedom of expression, it was justified under a doctrine of “defensive democracy”. Melcer did not distinguish, in this regard, between calls for boycott on Israel and call for boycotts on an area “under Israel’s control”.
Several of the Judges did, indeed, suggest making such distinction. Justice Danziger, for example, suggested that the Law should be interpreted to apply only to calls for a boycott of the State of Israel in its entirety, but not to calls to boycott “areas under its control” alone. A similar position was expressed by Justice Jubran. Justice Vogelman went further, arguing that the term “an area under its control” should be stricken from Article 1 of the Law altogether. This approach, however, was not adopted by the majority. The doctrine of “defensive democracy” was thus applied to justify limiting calls for boycott of Israel and of the Territories alike.
The Entry into Israel Law
In 2017, the main elements of the Boycott Law were incorporated into the Entry into Israel Law. Section 2(d)–(e) of the Entry Law determines that no grants of residence or permits of entry will be given:
“to any person who is not an Israeli citizen or alternatively does not hold a license for permanent residence in Israel if he or she, or the organization or the body for which he or she operates, has knowingly published a public call to engage in a boycott against the State of Israel or has made a commitment to participate in such a boycott”.
“Boycott” is defined under the Entry Law “in accordance with the Law for Prevention of Harm to the State of Israel by Boycott”.
The Scope of Section 2(d) was examined by the High Court of Justice in the case of Human Rights Watch v. Minister of Interior Affairs, in 2019, which concerned the decision of the Minister of Interior Affairs to deny a permit to stay and deport from Israel Omar Shakir, an employee of Human Rights Watch (HRW), for actively encouraging and taking part in a “boycott against Israel” under the Entry Law. The Court reinforced the position that the terms “Boycott against Israel” included acts directed against institutions and bodies in the Occupied Territories, and specifically against the settlements. The acts attesting to Shakir’s culpability included, for example, efforts to remove the endorsement of FIFA from soccer games being held in settlements, the fact that he congratulated Airbnb on his Twitter (now X) account for removing properties in the Occupied Territories from their listings and the fact that he reported on the same account on HRW’s attempt to create a “list of businesses operating in settlements, who contributes to serious abuses”. The Court clarified that a person who denies “the legitimacy of Israel’s control” in the Occupied Territories, and tries to undermine it through a boycott is included within the definitions of the Boycott Law, “even if he disguises his position in a rhetoric of human rights or international law”.
The discrepancies – immediate and general implications
The discrepancies between international law, as is reflected in the ICJ Opinion, and Israeli law, have both immediate and general implications. From the immediate perspective, States, entities and individuals who call for compliance with the ICJ Opinion or declare that they are committed to complying with it may find themselves subject to the repercussions enumerated in the Boycott and the Entry into Israel Laws.
For example, a company that states that it will not conduct business in the Occupied Territories can find itself barred from taking part in public tender in Israel. A person or entity who call to avoid investing in the settlements or to mark differently products originated within Israel or in the Territories can be subject to tort liability (although perhaps only if the call is made in Israel, as the question of whether the Boycott Law applies extraterritorially has not been determined). This means that NGOs and entities who call for implementation of the Advisory Opinion can thus be sued: from domestic NGOs such as the Association for Civil Rights in Israel to international bodies operating in Israel such as the Konrad Adenauer Foundation. Perhaps most significant are the implications under the Entry to Israel Law: an individual calling for compliance with the duty to distinguish, or who has committed, for example, not to engage in commercial, academic or other engagement with bodies or individuals in the settlements, will not be granted permit to enter Israel. The Entry Law does contain an exception, allowing the Minister of Interior Affairs to grant a permit “for special reasons that will be noted”, but this is an individual exception – the Law does not exempt public officials of other States or of international institutions as such. Thus, any official calling for compliance with the duty to distinguish should in theory be barred entry to Israel.
From the more general perspective, the Advisory Opinion is yet another example of the growing gap between the international discourse regarding the Israeli occupation and the internal Israeli discourse. The Opinion requires States to actively uphold the distinction between Israel and the Occupied Territories OPT. However, this distinction has long been eroded in Israel. The Boycott Law and the Entry to Israel law, as well as the case law that discusses them define boycott of settlements as boycott of Israel and perceive challenging the illegitimacy of Israel’s control of the Territories as an illegitimate act. The opposition to Israel’s control of the Territories is thus framed as an attack on Israel itself.
The fact that calls for compliance with the duty to distinguish bear consequences under Israeli law will lead to a situation in which most Israelis will not be exposed to voices supporting this duty (and the Opinion in general), as these voices will not voice their support within Israel or will not enter Israel altogether. The gap between the Israeli internal discourse and the international discourse will thus only grow. This gap is detrimental to any attempts to garner support from within Israel for a political process that may bring an end to the occupation, and compliance with the Advisory Opinion.