by Pierpaolo Petrelli *
On July 19, 2024, the International Court of Justice (ICJ) delivered a landmark advisory opinion declaring Israel’s continued presence in the Occupied Palestinian Territory (OPT), including East Jerusalem, as unlawful. This opinion, requested by the United Nations General Assembly, underscores significant violations of international law by Israel and highlights broader implications for global governance and human rights. Although non-binding in the conventional sense, the advisory opinion carries substantial legal, moral, and political weight, urging immediate international action to rectify these violations.
The ICJ’s opinion is not merely advisory; it holds a unique binding force due to several reasons. Firstly, the opinion reflects principles of jus cogens, the fundamental norms of international law, which include the right to self-determination, the prohibition of acquiring territory by force, and international humanitarian laws. These principles are universally binding and non-derogable, reinforcing the ICJ’s conclusions as declarative of existing international legal obligations.
Secondly, all states have an interest in upholding these norms, making it imperative for them to ensure compliance. The advisory opinion effectively mandates states to not recognize unlawful acts and to implement sanctions to enforce international law. This broad international consensus strengthens the opinion’s authority, transforming it from mere advice into an imperative action guideline for states worldwide.
Thirdly, advisory opinions are binding on the organization that requests them, in this case, the General Assembly. This creates a binding obligation for all United Nations organs, including the Secretariat, the General Assembly itself, its member states, specialized agencies, and even the Security Council, to act in accordance with the ICJ’s findings.
The ICJ’s findings are groundbreaking. It highlighted that Israel’s prolonged occupation, characterized by measures aimed at annexation and demographic alterations, violates the prohibition on acquiring territory by force and the right of the Palestinian people to self-determination. This occupation, which has persisted since 1967, fundamentally breaches international law and undermines the foundational principles of the United Nations Charter.
In a bold move, the ICJ found that the transfer of Israeli civilians into the occupied territories and the associated policies contravene Article 49 of the Fourth Geneva Convention, which prohibits the occupying power from transferring parts of its own civilian population into the territory it occupies. The Court mandated Israel to halt all new settlement activities immediately and evacuate all settlers from the occupied territories. This finding is particularly significant, as it underscores the illegality of settlement activities that have long been a contentious issue in the Israeli-Palestinian conflict.
The advisory opinion goes further, observing that Israel’s legal and administrative measures create and maintain a near-complete separation between settlers and the Palestinian population. This separation constitutes discrimination and violates international human rights and humanitarian laws, including the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Establishing a special tribunal by the United Nations to investigate and adjudicate instances of systemic discrimination and apartheid-like conditions in the OPT could be a pivotal step toward addressing these human rights abuses.
The ICJ concluded that Israel’s continued presence in the OPT constitutes an internationally wrongful act. Consequently, Israel is obligated to cease its unlawful policies and practices, dismantle settlements, return seized properties, and provide full reparations for the damages caused. This approach aligns with the broader principles of restorative justice and would help address the long-standing grievances of the Palestinian people.
The advisory opinion also delineates the responsibilities of other states and the United Nations. It asserts that all states must cooperate to end Israel’s illegal actions, distinguish in their dealings between Israel and the OPT, and refrain from recognizing or assisting in maintaining the illegal situation. The international community should consider a comprehensive embargo on arms sales and military cooperation with Israel until it complies with international law, akin to the sanctions regime applied to apartheid South Africa.
This advisory opinion serves as a crucial reaffirmation of international law regarding Israel’s policies in the OPT. It underscores the responsibilities of Israel, other states, and the international community to address and rectify ongoing violations of Palestinian rights and to uphold the international legal order. Not only does this advisory opinion highlight the legal framework governing the situation, but it also provides a roadmap for innovative and provocative legal and political actions aimed at seeking justice and compliance with international law.
The ICJ’s decision has also sparked fears within Israel regarding potential legal repercussions for its top leaders. The opinion is seen as strengthening the legitimacy of potential International Criminal Court (ICC) arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Such warrants could be issued in connection with alleged crimes against humanity.
In summary, the ICJ’s advisory opinion is a profound statement on the illegality of Israel’s occupation and settlement activities in the OPT. It calls for immediate and decisive international action to rectify these long-standing violations of international law. By emphasizing the principles of self-determination, non-acquisition of territory by force, and non-discrimination, the ICJ reinforces the foundational tenets of international law and human rights. This opinion should serve as a catalyst for renewed diplomatic efforts and tangible actions to achieve a just and lasting peace in the region.
Legal scholars have noted that the extended nature of the occupation, combined with Israel’s settlement expansion and annexation activities, transforms what should be a temporary belligerent occupation into an illegal, permanent one. The international community has a duty to act decisively, leveraging tools such as boycotts, divestments, and sanctions to compel Israel to comply with international law and end its unlawful practices in the OPT.
On the cover photo, the wall separating Palestine from Israel covered with peace-themed graffiti in Bethlehem, Palestine ©PhotopankPL/Shutterstock.com
* Pierpaolo Petrelli is professor of Transnational Terrorism & International Law at O.P. Jindal Global University (India)
