Primer on “Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem“

The ICJ – Jurisdiction and Advisory Opinion

• The International Court of Justice was asked by the U.N. General Assembly to provide an advisory opinion on the legality of the Israeli “occupation.” Under the ICJ’s statute, cases are not binding on anyone but the parties. An advisory opinion is not even a case, and has no legal status whatsoever.
• Countries such as Algeria, Brunei, Qatar, and Pakistan sponsored the GA’s request for an advisory opinion. Most of these countries do not have diplomatic ties with Israel, and several refuse to recognize it as a legitimate state. Major democracies like the United States, United Kingdom, Germany, Italy, Australia, Canada, Austria, and the Czech Republic opposed the motion.
• Israel did not participate in the proceedings, and the Court did not hold evidentiary proceedings. The Court did not hear any evidence but rather examined documents provided by the UN Secretary-General (who had previously justified the Oct. 7^th attacks).
• The question was as follows:

(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?

• Throughout the opinion, the Court took it as axiomatic that the territory is Palestinian, neglecting a thorough analysis of the competing sovereignty claims.
• The Court explicitly stated that the events of October 2023 were beyond its temporal scope. This intentional neglect, given the extreme security concerns that October 7th demonstrates, is significant. It aligns with the Court’s dismissal of Israeli security concerns, which could potentially impact the overall opinion.

Biased Chief Justice

• The case was presided over by President Nawaf Salam a Lebanese judge who, since joining the court in 2018, has twice been considered a candidate for the Lebanese premiership.
• Salam also served as Lebanon’s ambassador to the United Nations, where he repeatedly cast votes against Israeli conduct in Judea and Samaria, in violation of Article 17(2) of the ICJ Statute: “No member may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties…”
• Salam also has a history of anti-Israel statements on social media.

Opinion and Analysis

1) Rights to Territory–

• Despite the question phrased as legal consequences of Israeli actions in “Palestinian territory”, nowhere does the Court in its analysis explain its opinion that the territory is indeed Palestinian. The Court does not state whether a Palestinian state currently exists and when or how the territory became Palestinian.
• Par. 51 states that, at the end of the First World War, Palestine was placed under a class “A” Mandate entrusted to Great Britain by the League of Nations. Nowhere does it mention that the explicit aim of the Mandate was to recreate a Jewish national homeland in the land of Israel. As the Preamble to the Mandate states: “Recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”
• In par. 178, the Court claims that “no information was provided to substantiate” claims of Israel’s “deep historical and own valid claims” to the territory. This is both false (Fiji submitted claims) and absurd, as Israel’s historical claims to Judea and Samaria are well-known matters of the historical record.
• The Opinion describes the 1948, 1967, and 1973 wars as having passively “broken out.”
• It does not mention that the 1949 Jordan-Israel Armistice Agreement was specifically stated to be “dictated exclusively by military considerations,” meaning that it was not a political boundary.

2) Land for Peace

• Paragraph 58 mentions UN Security Council Resolution 242, adopted in the wake of the Six-Day War, without stating its significance. Resolution 242 set the terms for the “land for peace” framework and called upon Israel to withdraw “from territories occupied in the recent conflict.”
• The resolution specifically states “territories” as opposed to “the territories” (i.e., all territories), parallel with the “termination of all claims or states of belligerence.” This means that Israel’s requirement to withdraw from “territories” (and not all territories) is conditioned on a peace agreement.
• The Advisory Opinion erases the “land for peace” framework and requires Israel to withdraw from all territory acquired during the Six-Day War, regardless of Palestinian intentions.

3) Status of Gaza

• The ICJ concluded that Gaza is also occupied by Israel. Thus, according to the Court, Israeli hostages in Gaza are either settlers in occupied territory or the only Jews whose presence in the territories they do not regard as illegal.  
• It opined that a territory may be considered occupied without physical military presence if the Occupying State has the capacity to enforce its authority within a reasonable time. Israel continues to exercise certain aspects of control over Gaza’s border, sea and airspace, and the movement of goods and people.
• There is no other case of occupation based on the control of border crossings, and this so-called “functional approach to Occupation” is one specifically tailored to Gaza’s dimensions.
• The fact that Hamas has built 500 kilometers of tunnels in Gaza and taken hundreds of hostages whom Israel has not been able to recover despite massive efforts in nearly a year underscores the absurdity – and cruelty – of labeling Gaza as under Israeli occupation.