ICJ Delivers Advisory Opinion on the Legality of Israel’s Occupation of Palestinian Territories

Yesterday, the Worldwide Courtroom of Justice delivered its groundbreaking advisory opinion on the Authorized Penalties arising from the Insurance policies and Practices of Israel within the Occupied Palestinian Territory, together with East Jerusalem. (The Courtroom’s opinion and all the particular person opinions of the judges can be found right here.) The underside line of the AO is that the Courtroom discovered that Israel’s continued occupation of the OPT violates varied guidelines of worldwide legislation, and that Israel has to withdraw from the OPT as quickly as attainable – however there are lots of different findings of the Courtroom, together with with regard to the obligations of third states, that benefit dialogue. In some senses the end result of the AO is hardly shocking, however the opinion covers so many various points, a few of which are literally fairly novel, that, even when we took the political context apart, we might simply say that this is among the most essential choices that the ICJ has ever delivered.

On this put up I’ll focus on among the Courtroom’s key findings. The put up is just not meant to be a complete overview of the AO. I will likely be discussing some questions (e.g. the Courtroom’s method to the query whether or not Gaza has remained occupied by Israel) individually, and we’ll after all produce other posts on the AO imminently.

The diploma of consensus inside the Courtroom

The primary level I might make is that, regardless of the multitude of points that the case raised, and the real issue of a few of them, there was a exceptional diploma of consensus inside the Courtroom. This will after all be seen from the AO’s operative paragraphs – some factors had been determined by a 14 to 1 majority, others by 12 to three and 11 to 4. As at all times, there was a value for acquiring that consensus: ambiguities and silences within the Courtroom’s evaluation on some essential factors (for instance, on whether or not Israel’s practices within the OPT quantity to apartheid, or whether or not Palestine has already achieved statehood). There are additionally 14 (!) particular person opinions – that have to be some sort of file, which I’m certain will encourage one among Dapo’s trivia competitions – with some judges writing each collectively and individually.

However that sheer variety of particular person opinions mustn’t obscure the exceptional diploma of consensus inside the Courtroom. First, on an entire set of points, which kind the predicate for the conclusions that observe, that’s whether or not varied Israeli practices within the OPT, resembling the development of settlements or the failure to stop violence by settlers, violate worldwide humanitarian legislation, human rights legislation, the precise of the Palestinian individuals to self-determination, or different guidelines of worldwide legislation, the Courtroom is definitely unanimous. This correctly – a few of these practices are so blatantly unlawful that no affordable worldwide lawyer might argue in any other case. In impact, this a part of the AO builds on the Courtroom’s earlier findings of violations of IHL and different guidelines of worldwide legislation in its Wall opinion 20 years in the past.

Once I say that the Courtroom is unanimous on these factors, I’m referring expressly to Choose Sebutinde’s dissenting opinion. She would have declined to reply the Normal Meeting’s request, and could be very crucial of the questions requested and of how the Courtroom selected to reply them. However, from how I learn her opinion, even Choose Sebutinde agrees that varied Israeli practices violate worldwide legislation, and clearly so (para 51): ‘The solutions to query one, even when primarily based on a one-sided narrative, could not pose any surprises for the Normal Meeting, particularly since a lot of the relevant legislation was already pronounced by the Courtroom in earlier advisory opinions, together with the Wall Opinion, Namibia Opinion and Chagos Opinion. That could be a simple mathematical train.’

Equally, of their joint opinion, Judges Tomka, Abraham and Aurescu, who, along with Choose Sebutinde, voted towards a number of operative paragraphs of the AO, say the next ( at para 3):

We’re additionally satisfied that a lot of Israel’s insurance policies and practices within the territories it occupies since 1967 are in breach of its obligations below worldwide legislation. On this respect, we are able to endorse a lot of the observations introduced in part IV of the Opinion, on the idea of which the Courtroom concludes that these “insurance policies and practices” are illegal. Particularly, we share the view that the final and systemic follow of multinational and improvement of settlements within the West Financial institution is opposite to Article 49 of the Fourth Geneva Conference, because the Courtroom already noticed in 2004 (Authorized Penalties of the Development of a Wall within the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Stories 2004 (I), p. 184, para. 120). Extra usually, we consider that quite a few points of Israel’s coverage, particularly over the previous twenty years, can solely be understood as aiming to steadily incorporate nearly all of Space C of the West Financial institution into Israel’s personal territory (along with the formal annexation of East Jerusalem in 1980). The implementation of such an goal, because the Courtroom noticed in 2004 inside the narrower context of building of the wall, “severely impedes the train by the Palestinian individuals of its proper to self-determination, and is subsequently a breach of Israel’s obligation to respect that proper” (ibid., para. 122). What was true within the restricted context of the Opinion delivered in 2004 is much more so within the broader context of Israel’s “practices and insurance policies” within the Occupied Palestinian Territory thought of within the current Opinion.

The place the three Judges (plus Choose Sebutinde) half methods with the Courtroom is in making an additional essential step: that the occupation as such is now a unbroken internationally wrongful act, and that the occupation as such, quite than varied points of how it’s carried out, should accordingly be terminated. That is the one most essential level within the case, which is legally non-obvious, to place it mildly, and the Courtroom decides it by 11 votes to 4 – on any account a really robust majority. I’ll come again to it within the last a part of the put up.

Violations of worldwide legislation in occupation: relevant legislation

The Courtroom thus had little issue find that many Israeli practices and insurance policies within the OPT violate IHL or IHRL – that is in impact the Wall AO plus, determined 20 years later. I cannot be discussing these factors in any element, though a few of them very a lot benefit dialogue. Moderately, I’ll draw out some explicit factors of curiosity which primarily relate to defining the relevant legislation.

First, the Courtroom holds that the legislation of occupation nonetheless applies, at the very least partly, to Israel’s conduct in Gaza, regardless of its unilateral disengagement in 2005. The way in which it does so, nevertheless, is considerably ambiguous, and I’ll focus on this in a separate future put up.

Second, the Courtroom reaffirms its holding within the Wall case that human rights treaties apply extraterritorially when a state workout routines jurisdiction outdoors its territory, and in addition quotes the Wall AO concerning the connection between IHL and IHRL. Nevertheless, the Courtroom doesn’t say something intimately concerning the notion of jurisdiction in IHRL treaties – the implication right here is that the ICCPR, the ICESCR and the CERD apply within the OPT as a result of Israel workout routines management over the territory (paras 97-101), however this isn’t expressly acknowledged.

Third, the Courtroom examines varied points of the ‘extended’ nature of Israel’s occupation of the OPT, and finds – solely appropriately for my part – that the extended nature of an occupation has no authorized penalties as such below IHL. Moderately, the extended nature of the occupation could also be related for assessing the occupying energy’s compliance with different guidelines of worldwide legislation (para 109):

The truth that an occupation is extended doesn’t in itself change its authorized standing below worldwide humanitarian legislation. Though premised on the non permanent character of the occupation, the legislation of occupation doesn’t set temporal limits that may, as such, alter the authorized standing of the occupation. As an alternative, the legality of the occupying Energy’s presence within the occupied territory have to be assessed in mild of different guidelines. Particularly, occupation consists of the train by a State of efficient management in overseas territory (see paragraphs 91-92 above). To be able to be permissible, subsequently, such train of efficient management should always be according to the principles regarding the prohibition of the risk or use of power, together with the prohibition of territorial acquisition ensuing from the risk or use of power, in addition to with the precise to self-determination. Due to this fact, the truth that an occupation is extended could have a bearing on the justification below worldwide legislation of the occupying Energy’s continued presence within the occupied territory.

Israel’s annexation coverage, the prohibition on the usage of power and the prohibition on the acquisition of territory by power

The Courtroom finds that Israel has been pursuing a coverage of annexing elements of the OPT, both de jure or de facto. ‘These insurance policies and practices are designed to stay in place indefinitely and to create irreversible results on the bottom.’ (para 173). It is a manifestly right factual discovering, which all the Judges – even maybe Choose Sebutinde – endorse.

The query is methods to assess the legality of this coverage. And right here the Courtroom frames this query as one to be judged by reference to the prohibition on the usage of power in Article 2(4) of the Constitution, concluding as follows (para 179):

The Courtroom has discovered that Israel’s insurance policies and practices quantity to annexation of enormous elements of the Occupied Palestinian Territory. It’s the view of the Courtroom that to hunt to amass sovereignty over an occupied territory, as proven by the insurance policies and practices adopted by Israel in East Jerusalem and the West Financial institution, is opposite to the prohibition of the usage of power in worldwide relations and its corollary precept of the non-acquisition of territory by power. The way through which the annexation impacts the authorized standing of the occupation, and thereby the legality of the continued presence of Israel, is mentioned under.

There are two key factors right here. The primary is how the Courtroom treats two associated however arguably separate guidelines – the prohibition on the usage of power and the prohibition on the acquisition of territorial title by power – in a single breath, probably devaluing the latter. My buddies Monica Hakimi and Ingrid Brunk are I think about having a subject day on this, taking into account their current article on the subject, and I’m certain will contribute their ideas on this imminently. The second is how the Courtroom by no means explains who precisely the Article 2(4) prohibition protects, that’s, towards whom precisely is Israel unlawfully utilizing power. Is it the State of Palestine, current or in statu nascendi? Or is it the Palestinian individuals? Or a Palestinian self-determination territorial unit? The Courtroom simply by no means explains why precisely Article 2(4) even applies – see, on this regard, my dialogue of this difficulty within the context of Israel’s purported proper to self-defence towards assaults emanating from Palestinian territory.

To place this in another way, had the Courtroom beforehand discovered {that a} State of Palestine already existed, its evaluation on annexation would have been solely simple as written – annexing East Jerusalem or elements of the West Financial institution would have been equally illegal as, say, Russia’s annexation of Crimea or elements of jap Ukraine. However all through the AO the Courtroom could be very cautious to keep away from saying something instantly on the statehood of Palestine. Right here it additionally appears to be cautious in sustaining its silence on the query whether or not the prohibition in Article 2(4) protects entities apart from states, and in that case which of them. This ambiguity is repeated later within the opinion when the Courtroom examines the legality of the occupation as such.

Discrimination and (no?) apartheid

The Courtroom then proceeds to conclude that varied insurance policies and practices by Israel within the OPT are discriminatory as that time period is known in IHRL, that’s they represent differential therapy, usually disadvantaging Palestinians, and not using a ample justification. The Courtroom’s evaluation right here, for instance with regard to freedom of motion or destruction of personal property, is once more comparatively simple. The Courtroom thus concludes (para 223):

For the explanations above, the Courtroom concludes {that a} broad array of laws adopted and measures taken by Israel in its capability as an occupying Energy deal with Palestinians in another way on grounds specified by worldwide legislation. Because the Courtroom has famous, this differentiation of therapy can’t be justified with regards to affordable and goal standards nor to a legit public intention (see paragraphs 196, 205, 213 and 222). Accordingly, the Courtroom is of the view that the régime of complete restrictions imposed by Israel on Palestinians within the Occupied Palestinian Territory constitutes systemic discrimination primarily based on, inter alia, race, faith or ethnic origin, in violation of Articles 2, paragraph 1, and 26 of the ICCPR, Article 2, paragraph 2, of the ICESCR, and Article 2 of CERD.

The Courtroom then strikes to analyzing whether or not there’s additionally a violation of Article 3 of CERD, which prohibits racial segregation and apartheid. This, after all, is a totemic difficulty by way of the competing narratives of the Israeli-Palestinian battle. And right here the Courtroom, in search of inside consensus, opted for a extra ambiguous method. It finds that Israel maintains a coverage of separation between Israelis and Palestinians on the OPT, and concludes laconically (para 229) that:

The Courtroom observes that Israel’s laws and measures impose and serve to keep up a near-complete separation within the West Financial institution and East Jerusalem between the settler and Palestinian communities. For that reason, the Courtroom considers that Israel’s laws and measures represent a breach of Article 3 of CERD.

So, the Courtroom finds a violation of Article 3 CERD, nevertheless it doesn’t use the time period apartheid or conduct any evaluation of what the constitutive parts of apartheid are. This query is canvassed extensively in among the separate opinions, however the backside line of the Courtroom’s method appears clear – at greatest Israel’s actions quantity ‘solely’ to racial segregation, however they is also apartheid. And the explanation for this ambiguity is once more the necessity to keep consensus inside the Courtroom; the Courtroom thus didn’t name Israel an ‘apartheid state’, nevertheless it did discover a violation of an article through which apartheid is among the two out there choices.

 Self-determination and statehood

The Courtroom then proceeds to debate the precise of the Palestinian individuals to self-determination. In step with its earlier willpower within the Wall AO, it unsurprisingly finds that Israeli insurance policies violate the Palestinian individuals’s proper to self-determination. These insurance policies embody the development of settlements, the displacement of Palestinians, and depriving them of their pure sources, in addition to the overarching coverage of annexation.

Throughout this dialogue, the Courtroom refers (para 237) to Israel’s ‘obligation to not impede the Palestinian individuals from exercising its proper to self-determination, together with its proper to an impartial and sovereign State, over the whole thing of the Occupied Palestinian Territory.’  Once more, this formulation is fastidiously chosen in order that the Courtroom avoids saying on whether or not a Palestinian state already exists as a matter of legislation.

From violations of worldwide legislation throughout occupation to occupation as a violation of worldwide legislation

The important thing conceptual improvement within the AO occurs in its last sections. It’s right here that the Courtroom makes a leap from concluding that Israel has dedicated many violations of worldwide legislation throughout its occupation of the OPT to ruling that the occupation as such has develop into an internationally wrongful act that must be terminated. Affordable individuals can disagree on this level – it’s exactly right here that 4 judges half methods with the bulk.

Earlier than explaining what the Courtroom has dominated right here, I might make some preliminary factors of my very own. I’ve at all times thought that arguments concerning the illegality of Israel’s occupation have usually been needlessly difficult and complicated. The authorized place is, for my part, fairly clear. As a matter of IHL, an occupation is neither authorized or unlawful, identical to an armed battle is neither authorized or unlawful. It merely exists or not. Clearly, an occupation could be carried out in a fashion that categorically violates the legislation of occupation, together with by denying that this legislation applies within the first place, however this has no bearing on the standing of the occupation as a matter of IHL. However, as a matter of different guidelines of worldwide legislation, an occupation can actually be authorized or unlawful.

For instance, Russia is presently the belligerent occupier of Crimea and elements of jap Ukraine. That occupation is neither authorized or unlawful as a matter of IHL – it simply exists, even when Russia denies that it does as a result of it purports to have annexed these territories. However, Russia’s continued occupation of those territories – its continued management over them and train of energy in them – is a manifest violation of the prohibition on the usage of power in Article 2(4) of the Constitution vis-à-vis Ukraine. In that sense Russia’s continued presence in Ukraine – each second of it – is a violation of worldwide legislation that have to be terminated. It is just if Russia had a sound justification to make use of power on the territory of Ukraine with out its consent, i.e. self-defence, that its occupation can be authorized (nevertheless it after all has no such justification).

So, bearing this in thoughts, what has the Courtroom concluded with respect to Israel’s occupation of the OPT? First, the Courtroom fairly rightly for my part defined that the legality of the occupation is to not be judged towards IHL, which merely comprises no guidelines on the matter, however towards different guidelines of worldwide legislation (para 251):

The Courtroom considers that the principles and rules of common worldwide legislation and of the Constitution of the United Nations on the usage of power in overseas territory (jus advert bellum) should be distinguished from the principles and rules that apply to the conduct of the occupying Energy below worldwide humanitarian legislation (jus in bello) and worldwide human rights legislation. The previous guidelines decide the legality of the continued presence of the occupying Energy within the occupied territory; whereas the latter proceed to use to the occupying Energy, whatever the legality or illegality of its presence. It’s the former class of guidelines and rules concerning the usage of power, along with the precise of peoples to self-determination, that the Courtroom considers to be relevant to its reply to the primary a part of query (b) of the request for an advisory opinion by the Normal Meeting.

Second, the Courtroom reiterates its discovering that Israel’s annexation insurance policies violate the prohibition on the acquisition of territory by power and that these and different practices violate the rights of the Palestinian individuals to self-determination (paras 252-257). That is in and of itself solely unobjectionable, together with the Courtroom’s discovering at para 254 that Israel’s safety considerations can not ‘override the precept of the prohibition of the acquisition of territory by power.’  Aside from Choose Sebutinde, the opposite dissenting judges don’t disagree with this level. What they’d say, nevertheless, is that Israel’s wrongful acts are these insurance policies and practices that purport to annex elements of the OPT, not the occupation as such. However for almost all, the existence of the occupation can’t be divorced from the way in which it was been carried out. That is what the Courtroom says, in maybe crucial paragraph of the opinion (para 261):

The Courtroom considers that the violations by Israel of the prohibition of the acquisition of territory by power and of the Palestinian individuals’s proper to self-determination have a direct impression on the legality of the continued presence of Israel, as an occupying Energy, within the Occupied Palestinian territory. The sustained abuse by Israel of its place as an occupying Energy, by annexation and an assertion of everlasting management over the Occupied Palestinian Territory and continued frustration of the precise of the Palestinian individuals to self-determination, violates elementary rules of worldwide legislation and renders Israel’s presence within the Occupied Palestinian Territory illegal. (emphasis added)

What are we to make of this? First, to my thoughts the important thing level right here is the Courtroom’s use of the notion of abuse of Israel’s place as an occupant – this resembles the abuse of rights doctrine, however I’m additionally reminded of doctrines in IHRL or home administrative legislation that regard as unlawful acts which can be completed with sure ulterior functions (right here the annexation and systematic denial of self-determination).

Second, there’s one main set of questions lacking right here – what the Courtroom has referred to as Israel’s safety considerations, or what in jus advert bellum we might assess as Israel’s purported declare to self-defence. The Courtroom simply doesn’t focus on these questions in any respect. Coupled with the paradox within the Courtroom’s method to the applicability of the jus advert bellum within the first place, which I famous above, and its coyness concerning the statehood of Palestine, it’s tough to flee the impression that there’s a substantial hole within the Courtroom’s reasoning right here.

Let me put this considerably in another way. Recall my Ukraine/Russia instance above. All of us agree that Russia’s occupation – i.e. management – of Ukrainian territory is against the law, as a result of Russia violated Article 2(4) of the Constitution when it invaded Ukraine. All affordable worldwide legal professionals would equally agree that Russia’s purported annexation of Ukrainian territories can be illegal. However, if the ICJ was requested to pronounce, for instance, on whether or not Russia’s occupation of Crimea is against the law, it could certainly should say one thing on whether or not Russia’s declare to self-defence towards Ukraine is legitimate or not? How might it resolve the query of the occupation’s legality with out ruling on the validity of the usage of power that maintains the occupation which, in flip, is dependent upon the putative invocation of self-defence?

Or, to offer an entire counterfactual – think about if Russia was right and Ukraine did intend to imminently launch armed assaults towards Russia. Russia’s occupation of Ukrainian territory would then be justified in jus advert bellum phrases, as long as it was mandatory and proportionate. Any purported annexation, nevertheless, wouldn’t be (though there have been just a few students arguing that territorial claims in a struggle of self-defence could possibly be sustained, that is removed from the mainstream view). In such a case, the ICJ must rule that the annexation was illegal, nevertheless it couldn’t rule that the occupation was unlawful, as long as the precise to self-defence continued to use (e.g. Ukraine maintained its intent to assault Russia).

So, coming again to the Palestine AO, I discover it obscure how the Courtroom’s place on the illegality of the occupation as such could be sustained with out the Courtroom saying something about the usage of power/self-defence downside. For instance, if the Courtroom had mentioned that self-defence can not presumably be mandatory after greater than half a century of occupation, that may be a attainable argument. Or, it might have adopted a concept concerning the non-applicability of self-defence in any respect in conditions resembling these. Or, it might have had an in depth factual evaluation. But it surely needed to say one thing.

One understanding of the Courtroom’s reference to abuse within the paragraph above is that an motion in self-defence might, even when the standard advert bellum standards would in any other case be met, develop into illegal if it turned tainted by a predominantly ulterior function, resembling territorial conquest. That’s, the Courtroom might basically be saying that Israel’s declare of self-defence is pretextual, or that its safety considerations are brought on by the existence of the occupation itself, the true purpose of which is acquisition of territory by power whereas disregarding Palestinian self-determination. However once more, the Courtroom doesn’t say this in so many phrases.

It appears moderately clear that this hole within the Courtroom’s reasoning was once more brought on by the necessity to keep consensus inside the Courtroom. Among the particular person opinions focus on the safety difficulty intimately. For instance, Judges Cleveland and Nolte accomplish that when writing collectively, adopting a variant of the ulterior function method (para 8). Additionally they observe that, of their view, the scenario in Gaza is kind of totally different from that of East Jerusalem and the West Financial institution.  Choose Tladi finds that Israel couldn’t efficiently depend on self-defence to justify its occupation, for varied causes. On this preliminary impression, I can’t analyse all the separate opinions intimately. Having learn them, nevertheless, it’s fairly clear that this was one of many questions that vexed the judges essentially the most, which led to the AO textual content that we’ve got. Simply to be clear, I’m not saying that I disagree with the Courtroom’s conclusion – under no circumstances – however I believe it’s onerous to dispute that this level required extra substantiation.