The advisory opinion issued by the International Court of Justice (ICJ) on 19 July on the legal implications of the situation in the Occupied Palestinian Territories (OPT) puts paid to the remnants of Israel’s international political and diplomatic standing as it presses ahead with its genocidal war against the Palestinians in Gaza.

The ICJ opinion has simultaneously bolstered millions of rights advocates and people of conscience around the world who have been protesting against the ongoing atrocities. It has armed them with incontrovertible legal foundations and arguments that strengthen their advocacy of the Palestinian cause and fortify their resolve to keep up the fight for justice for the Palestinian people.

The ICJ opinion affirms unequivocally that the question of Palestine is about an unlawful occupation of a territory. It refutes all the Israeli claims and arguments that sought to detach the Palestinian cause from its true context and to portray the problem as a conflict between disputant parties over disputed territory.

It makes it clear that this is a conflict between an unlawful occupier and an occupied people. It leaves no doubt that Gaza, despite Israel’s unilateral withdrawal in 2005, is still under occupation. It additionally denies claims that the Oslo Accords have somehow altered the status of the Palestinian Territories as occupied territories. The judges ruled that the Oslo Accords do not detract from Israel’s obligations under international law towards the Occupied Palestinian Territories and people.

Crucially, the 14-member panel of international judges underscored the illegality and the danger of the protracted nature of the Israeli occupation, which inherently flies in the face of the international legal definition of occupation as a temporary measure. Israel has been occupying the West Bank, Gaza, and East Jerusalem for more than 56 years.

According to the 1907 Hague Regulations, which are considered binding customary law, occupation is a legal measure that a belligerent party can take during war, provided that it is temporary and observes the international legal and humanitarian rules. The Fourth Geneva Convention of 1949 incorporated the principle of temporariness, which Israel has clearly transgressed. This transgression, in turn, is at the root of all the illegal and aberrant consequences and impacts the Occupied Territories have experienced up to the present day.

From the protracted nature of the occupation comes the violation of the Palestinian people’s right to self-determination and the perpetual character of that violation.

Although the substance of the ICJ’s advisory opinion is not new – reports by Palestinian and international human rights organisations have long abounded with denunciations of the violations and evidence of their deleterious effects, and the Palestinians have been unflagging in their demands for their rights – and even though the opinion is not binding, it offers a thorough legal assessment on the question of the OPT by the world’s highest panel of judges with the relevant expertise in international law and international humanitarian law.

We thus have an authoritative legal reference and moral compass that other legal and judicial bodies can consult, and once they do, all countervailing arguments attempting to justify the occupation and its practices will fall by the wayside.

The 80-page advisory opinion, collectively compiled by the ICJ’s 15-member panel, was initiated by a request submitted by the UN General Assembly in January 2023. It asked the court for a legal determination on “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.”

In its response, the court found that Israel’s continued presence in the Palestinian Territories it occupied in 1967 is unlawful and that all Israeli settlements in the West Bank, Gaza and East Jerusalem, along with the entire regime sustaining them are unlawful and must be dismantled.

The judges condemned Israel’s exploitation of Palestinian natural resources in the OPT in a manner contrary to international law and that deprives the Palestinians of their right to sovereignty over their natural resources. They were equally forceful in their condemnation of Israel’s expansion of its sphere of legal regulation over the OPT and the disparity between the laws and regulations applied to Palestinians and those applied to Israeli settlers in the territories.

Finally, the judges concluded that Israel must end its unlawful occupation, cease all new settlement activities, evacuate all settlers from the OPT, make reparations for the damage caused to Palestinians in the OPT, and allow Palestinians displaced by the occupation to return to their original place of residence.

LANDMARK RULING

he ICJ’s advisory opinion is a legal landmark in the long struggle for Palestinian rights.

Coming after decades of injustice, it presents an unequivocal and definitive legal rendering of their plight and status under international law. It says that the Palestinian cause is not about a party in a symmetrical conflict or dispute with a rival claimant to the same plot of land. It is about people under foreign occupation, a situation that, under international law, requires the respect for a broad range of rights of the occupied people, including the right to self-defence, and entails an array of obligations incumbent on the occupying power, namely Israel.

Based on the evidence before it, the court found that “the violence by settlers against Palestinians, Israel’s failure to prevent or to punish it effectively and its excessive use of force against Palestinians contribute to the creation and maintenance of a coercive environment against Palestinians.” It further underscored the “systemic” and “systematic” nature of the violence created by the occupation, its settlement policies, and its failure to prevent or punish attacks by settlers. It is an environment that has left Palestinians with no recourse but the inalienable right to self-defence.

The significance of the ICJ’s ruling becomes clear when we contrast its substance with statements by Israeli officials whose denials of the history and reality of the Israeli occupation and disregard for international law and justice have been laid bare. With no rational argument to fall back on, their reaction was to openly display their contempt for the international courts and accuse them of “anti-Semitism.”

Israeli assertions that Israel has a “religious and historic” right to the lands that constitute the OPT do not come only from the members of Israeli Prime Minister Benjamin Netanyahu’s far-right government. Less extremist politicians such as opposition leader Yair Lapid have uttered similar statements. Indeed, the extent to which this view is shared across almost the entire political spectrum in Israel is evidenced by the recently adopted Knesset resolution opposing the establishment of a Palestinian state.

The resolution has joined an entire corpus of legislation intended to permanently strip Palestinians of their right to self-determination in their land, restricting that right exclusively to Jews. The innumerable discriminatory laws, acts, and regulations emerged in tandem with the implementation of the settlement policies that followed on the heels of the occupation of the rest of historic Palestine beyond the “Green Line” in 1967.

Carried out by both left- and right-wing governments in Israel, the settlement policies received a major boost from the Oslo Accords, which effectively gave the occupation cover to circumvent the dictates of international law governing occupied territories and to expand settlement construction.

The ICJ opinion is significant at another level. It is certain to inform other cases currently being considered in The Hague, notably the case brought before the ICJ charging Israel with committing genocide in Gaza and the recently opened International Criminal Court (ICC) investigation into Israeli political and military leaders on charges related to war crimes and crimes against humanity in both Gaza and the West Bank.

The ICC’s investigations are based on allegations that, regardless of the stated aims and military objectives of Israel’s assault on Gaza, Israel’s methods of pursuing them and the immense human suffering it has caused in the process constitute war crimes and crimes against humanity.

In May, ICC Chief Prosecutor Karim Khan applied for arrest warrants for Netanyahu and his Defence Minister Yoav Galant. Since then, the ICC tribunal has accepted dozens of briefs from third parties interceding on Israel’s behalf in an orchestrated attempt to obstruct the judicial process of holding the Israeli officials accountable for their war crimes. Unfortunately, the phenomenon also opens the ICC to further charges of double standards when it comes to Palestine.

After Palestine became a member of the ICC in 2015, it was only able to file a request for an investigation into Israeli crimes in 2018, and then it took another three years before the ICC approved the request. Then, in November 2023, many countries asked the ICC prosecutor to expand his investigations on Palestine to include the genocide that was enfolding in Gaza at the time. Nothing was heard on this matter for the next seven months. Surely, the ICC should take its cue from the breadth and forcefulness of last week’s ICJ advisory opinion and fully shoulder its role to administer justice on behalf of Palestinians.

This brings us to another crucial part of the ICJ’s opinion: the legal consequences for other states arising from Israel’s “internationally wrongful acts” in the OPT. In this regard, the court held that all states and international organisations, including the UN, are “under an obligation not to recognise as legal the situation arising from the unlawful presence” of Israel in the OPT and “not to render aid or assistance in maintaining the situation” created by the occupation. Lastly, the court called on the “United Nations, and especially the General Assembly, which requested this opinion, and the Security Council,” to “consider the precise modalities and further action required to bring to an end as rapidly as possible the unlawful presence” of Israel in the OPT.

These opinions emanated from the compelling and universally binding nature of the Genocide Convention and were, therefore, the ICJ’s way of appealing to all international bodies and members of the international community to shoulder their duty to end decades of wrongdoing and suffering and to bring justice to the Palestinian people.

Given the Security Council’s dismal record in this regard, since its hands are tied by the US veto which has enabled Israel to act with impunity for decades, the General Assembly should take the matter into its own hands. It should pass resolutions calling on Israel to end its occupation and to comply with all relevant international laws and calling for sanctions for non-compliance.

*The writer is a professor of political science and international relations at the Arab-American University in Palestine

* A version of this article appears in print in the 1 August, 2024 edition of Al-Ahram Weekly