Al-Haq, Al Mezan Center for Human Rights, and the Palestinian Centre for Human Rights welcome the pivotal legal conclusions of the International Court of Justice (ICJ) in, the historic and landmark Advisory Opinion, Legal Consequences Arising From the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. The Court found:

·                 that the State of Israel’s continued presence in the Occupied Palestinian Territory is unlawful;

·      that the State of Israel is under an obligation to bring to an end its unlawful presence in the Occupied Palestinian Territory as rapidly as possible;

·    that the State of Israel is under an obligation to cease immediately all new settlement activities, and to evacuate all settlers from the Occupied Palestinian Territory; and

·                 that the State of Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned in the Occupied Palestinian Territory.

In clarifying the scope and meaning of the questions posed, the Court affirmed that from a legal standpoint, that the Occupied Palestinian Territory – comprised of the West Bank, including East Jerusalem, and the Gaza Strip – constitutes a single territorial unit, the unity, contiguity and integrity of which are to be preserved and respected (para. 78). The Court further affirmed that Israel’s military withdrawal from the Gaza Strip does not change its legal status, which remains under occupation (para. 94), as Israel continues to exercise key elements of authority over the Strip, ‘even more so since 7 October 2023’ (para. 93). The Court, acknowledging Israel’s fragmentation of the Palestinian people, also noted that by virtue of the right to self-determination, a people is protected against acts aimed at dispersing the population and undermining its integrity as a people (para. 239). The decision rested on two central tenets, the prohibition on the acquisition of territory through use of force, and the prohibition of the denial of the right to self-determination.

Welcoming the Advisory Opinion, we particularly welcome the Court’s significant conclusions on settler withdrawal and the right of Palestinians to return to their properties: ‘Restitution includes Israel’s obligation to return the land and other immovable property, as well as all assets seized from any natural or legal person since its occupation started in 1967, and all cultural property and assets taken from Palestinians and Palestinian institutions, including archives and documents. It also requires the evacuation of all settlers from existing settlements and the dismantling of the parts of the wall constructed by Israel that are situated in the Occupied Palestinian Territory, as well as allowing all Palestinians displaced during the occupation to return to their original place of residence’.

We note that the nature of the question posed to the Court was limited temporally to the occupation since 1967, and as such in no way limits the right of return of Palestinian refugees since 1948, but rather is an important step towards the realisation of the collective inalienable rights of the Palestinian people.

In an important clarification, the Court explained that occupation ‘cannot be used in such a manner as to leave indefinitely the occupied population in a state of suspension and uncertainty, denying them their right to self-determination while integrating parts of their territory into the occupying Power’s own territory’. It further stressed ‘that the existence of the Palestinian people’s right to self-determination cannot be subject to conditions on the part of the occupying Power, in view of its character as an inalienable right’ (para. 257). This statement of fundamental principle, aligned with the Court’s confirmation that the terms of the Oslo Accords agreements: ‘cannot be understood to detract from Israel’s obligations under the pertinent rules of international law applicable in the Occupied Palestinian Territory,’ (para. 102) is of fundamental importance. Israel and its allies, desperate to find a cloak of legality to perpetuate their impunity, have repeatedly turned to the Oslo Accords as a means to refute and dismiss Palestinian efforts to secure accountability. This was witnessed most recently at the International Criminal Court, where the United Kingdom (UK) has sought to prevent or delay the issuance of arrest warrants on charges of war crimes and crimes against humanity against Israel’s Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant. Any logic or rationale to the UK’s position has now been conclusively rejected by the ICJ.

The Court affirmed that ‘Israel is not entitled to sovereignty over or to exercise sovereign powers in any part of the Occupied Palestinian Territory on account of its occupation. Nor can Israel’s security concerns override the principle of the prohibition of the acquisition of territory by force’ (para. 254). In determining the illegality of Israel’s occupation, the Court looked to the manifold illegalities of Israel’s policies and practices which leave no other conclusion available other than to recognise the occupation as unlawful. In affirming that Israel’s occupation is unlawful, the Court held that Israel is in violation of international law concerning the prohibition of the threat or use of force, including the prohibition of territorial acquisition resulting from the threat or use of force, as well as with the right to self-determination.

The Court identified a multitude of Israeli violations constituting unlawful racial discrimination including: Israel’s residence permit policy imposed on Palestinians in East Jerusalem; restrictions imposed by Israel on the movement of Palestinians; Israel’s practice of punitive demolitions of Palestinian property; and Israel’s planning policy in relation to the issuance of building permits. Having established that Israel’s legislation, and other measures, impose and serve to maintain a near-complete separation between settlers and Palestinians in the West Bank, including East Jerusalem, the Court concluded that Israel’s legislation and measures constitute a breach of Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which prohibits racial segregation and apartheid. State submissions to the Court, building on long standing analyses from Palestinian civil society, had made frequent reference to Israel’s practices of apartheid. It is now imperative that the legal body with particular responsibility for addressing racial discrimination, the Committee on the Elimination of All Forms of Racial Discrimination that has been tasked with the specific question as to Israel’s imposition of an apartheid regime, act without further delay to condemn Israel’s policies and practices against the Palestinian people as a whole as a violation of the prohibition of Apartheid at Article 3 of CERD.

The core character of the Israeli occupation has been the colonisation of Palestinian territory, through military assault, fragmentation, and the transfer of Israeli nationals into occupied territory as settlers. Proclaimed and de facto annexation, consistently endorsed and implemented by successive Israeli governments, declare the ideology of Israel’s occupation to be one of settler-colonialism in blatant violation of and disregard for the basics of international law. The Court’s 2004 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory was significant in affirming that Israel’s settlement project and construction of the Wall was unlawful, in asserting that there are legal obligations on Israel to cease its unlawful conduct and to make reparations, and that there are legal obligations on third states to ensure Israel respects the law, and that the United Nations (UN) should take steps to support this.

Israel’s ability to ignore that Advisory Opinion, and the failure of third states to act to enforce the Court’s findings, has had a direct and grievous impact on the Palestinian people. This new Advisory Opinion comes against a scenario where Israel’s full blown apartheid regime of settler-colonialism has revealed its genocidal nature. Repeated and ongoing genocidal massacres of Palestinians in Gaza amidst the total destruction of infrastructure in Gaza continues without respite. The Court, following South Africa’s efforts at holding Israel to account for its ongoing violations of the Convention Against Genocide, has already in 2024 established the plausibility of Israel carrying out genocide against Palestinians in Gaza. Having already in 2024 ordered Israel, on three different occasions, to take all measures within its power to stop with immediate effect all genocidal acts in Gaza, Israel has, following the precedent set subsequent to the 2004 Advisory Opinion, blatantly ignored the provisional measures orders issued by the ICJ.

We welcome the Advisory Opinion as a vindication of Palestinian rights, and of Palestinian persistence to advocate for the international rule of law and justice. We also welcome the Court’s recognition of the ‘sustained abuse by Israel of its position as an Occupying Power’ (para. 261). We reiterate the urgent necessity that individual states, the international community as a whole, and the UN, respect the Advisory Opinion, act upon their legal obligations as reiterated by the ICJ and ensure that this unlawful occupation, characterised by increasing dispossession, violence, and discrimination, be brought to an immediate, total and unconditional end. We remind the international community that its failure to do so will only entrench Israel’s impunity and encourage it to persist its commission of human rights violations and international crimes against the Palestinian people, including the ongoing genocide in the Gaza Strip.