The ICJ opinion on Israeli occupation of Palestinian territories and its implications | Explained

ICJ rules Israel's occupation of Palestinian territory illegal, urging rapid end with implications for allies and international law, Aaratrika Bhaumik explains.

The International Court of Justice (ICJ) on July 19 ruled that Israel’s decades-long occupation of Palestinian territory was “illegal” and should come to an end “as rapidly as possible”. In a historic but non-binding advisory opinion rendered by the 15-judge panel, the U.N.’s top court found multiple breaches of international law by Israel including activities that amounted to apartheid.

Notably, the court underscored that other states are under an obligation to neither recognise the occupation as lawful nor aid or assist it — a directive with profound implications for Israel’s allies. The opinion was issued in response to a request from the U.N. General Assembly (UNGA) in 2022. While it predates the Israel-Hamas conflict, it is likely to amplify pressure on Israel to bring an end to its ongoing military offensive which has killed more than 38,000 Palestinians, according to the Gaza Ministry of Health.

In a separate case instituted by South Africa, the ICJ is already considering allegations that Israel is committing genocide in its military campaign in Gaza. A preliminary ruling has already been issued, instructing Israel to prevent and punish any incitement to genocide and to enhance provisions for humanitarian aid. In May, the world court ordered Israel to halt its offensive on Rafah, a city in southern Gaza, citing “immense risk” to hundreds of thousands of Palestinians taking shelter there. However, Israel has continued its attack in defiance of the court order.

The ICJ wields dual jurisdictional powers — resolving legal disputes between member states and rendering legal opinions on matters referred to by U.N. organs and specialized agencies. While advisory opinions issued through the latter are non-binding, they carry significant legal weight and moral authority, capable of influencing diplomatic relations. In December 2022, the UNGA adopted a resolution seeking the court’s advisory opinion on the “legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.” Introduced by Nicaragua, the resolution was passed with 87 votes in favour, 26 against, and 53 abstentions.

Following the 1967 Arab-Israeli War, Israel captured the West Bank, Gaza Strip and East Jerusalem – territories historically sought by Palestinians for their statehood aspirations. It has since built settlements in the West Bank and East Jerusalem and steadily expanded them. While Israeli troops and settlements were withdrawn from Gaza in 2005, the expansion of settlements in the West Bank continued unabated. In recent months, Prime Minister Benjamin Netanyahu’s far-right government has used its war on Gaza as a pretext to expand these settlements at a rate faster than seen in the previous decades.

Although Israel abstained from participating in the proceedings, it filed a written statement contending that an advisory opinion would be “harmful” to attempts made to resolve the conflict since the questions posed by the UNGA were prejudiced. The last time the UNGA asked the ICJ for an advisory opinion on Palestine was in 2004 when the court ruled that Israel’s construction of a wall predominantly within the occupied West Bank and East Jerusalem violated international law. Israel was ordered to halt the construction of the wall and dismantle parts of it, while the U.N. was asked to consider additional measures to end the illegal construction. Despite the ruling, Israel unilaterally altered the wall’s route. Nearly two decades later, the situation has only worsened, with the separation wall extending over 700km, and 85% of its route located inside the occupied West Bank.

Under international law, “occupation” refers to a situation when during an international armed conflict, a territory, or parts thereof, comes under the effective provisional control of a foreign power, even if it is not met with armed resistance. The most widely accepted definition of an occupation has been codified in Article 42 of the 1907 Hague Regulations. The provision stipulates that a “ territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”. However, an occupation must be temporary and cannot entail any transfer of sovereignty to the occupying power.