The Israeli occupation of the Palestinian territories was challenged by the principal judicial organ of the UN using unprecedented language for the first time in history this week.

In 80 pages of an exhaustive and all-encompassing Advisory Opinion (AO), the International Court of Justice (ICJ) declared Israel’s occupation of the Palestinian territories seized in 1967 “unlawful” and named the Gaza Strip as undisputedly under Israeli occupation along with East Jerusalem and the West Bank.

Israel maintains that it does not occupy Gaza and therefore does not adhere to the obligations and rules of occupying forces regulated by international law.

The court said Israel is obliged to end its unlawful presence in the Occupied Palestinian Territories (OPT) “as rapidly as possible,” cease new settlement activities, and evacuate all existing settlers. It went further by ordering Israel to pay reparations for all the damage it has caused Palestinians in the OPT.

More significantly, it explicitly rules that Israel is required to allow Palestinians displaced during the 1967 illegal occupation “to return to their original place of residence.”

The startling adjudication is the first time since UN General Assembly Resolution 194 in 1948 stipulating the Palestinian right of return (ROR) that this inalienable right has been mentioned by the ICJ.  Palestinian rights advocates have been demanding the ROR for decades to all territories occupied since both 1948 and 1967.

But while the implementation of UN Resolution 194 was contingent upon a final resolution that never materialised, the ICJ directly requires Israel to do so immediately, which is unprecedented in the history of the 67-year-old Arab-Israeli conflict.

The court’s AO has no binding force, but it carries great legal and political weight that will inevitably impact Israel and its allies, observers say.

The ICJ is the world’s highest court and remains, despite its enforcement limitations, a principal organ of the UN and the rules-based international order. All UN member states are party to the ICJ’s Statutes.

The court consists of a panel of 15 judges elected by the UN General Assembly and Security Council.

Israel’s Foreign Ministry rejected the ICJ opinion as “one sided and wrong”. A statement by its Foreign Affairs Minister Israel Katz used the “historic rights” of the Jewish people, the “Holocaust,” “Hamas,” and “Iran” in its wording, but did not mention the Israeli occupation.

Israeli leaders accused the ICJ’s elected panel of judges of antisemitism.

The AO stems from a December 2022 request by the UN General Assembly to the court to consider the legal consequences of Israel’s policies and practices in the OPT.

In February this year, the ICJ held hearings on Israel’s occupation of Palestinian land, with 50 countries and three international organisations participating in the oral proceedings, “more than in any other case since the world’s highest court began functioning in 1946,” in the words of an analysis by international rights group Human Rights Watch.

A statement by the US State Department criticised the court’s AO as a “complication” to resolving the conflict. The State Department said it “strongly discourages” parties from using the ICJ opinion “as a pretext for further unilateral actions that deepen divisions or for supplanting a negotiated two-state solution.”

The statement comes a week after the Israeli parliament voted against Palestinian statehood, the basis of the two-state solution.

Legal scholars and advocates of Palestinian rights have celebrated the “breadth” of the AO as one of the court’s most striking achievements. “Recognising the Palestinian right of return is perhaps the most surprising finding for me,” said Tara Von Ho, a senior lecturer at the UK-based Essex Law School.

“The court did not ‘need’ to go there to answer the questions, but that it did (and recognised Apartheid) indicates how seriously the ICJ took this case and also that the court was committed to addressing the situation holistically so that it does not need to revisit the situation repeatedly in the future,” Von Ho wrote on X, previously known as Twitter.

Elaborating on the AO, the court said it 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 Barrier Wall constructed by Israel that are situated in the OPT, as well as allowing all Palestinians displaced during the 1967 occupation to return to their original place of residence.

The ICJ AO is separate from other cases brought before the ICJ in relation to Israel’s war on Gaza since October 2023. Charges by South Africa that Israel is in violation of the UN Genocide Convention is being addressed by the court in two tiers.

The court has found merit in South Africa’s accusations and has agreed to proceed with the case, which is likely to take years to adjudicate.

At the same time, the ICJ has accepted South Africa’s request to address a list of provisional measures, or restraining orders, intended to call for a ceasefire in Gaza and allow much-needed humanitarian assistance.

The ICJ did not immediately adopt South Africa’s provisional measures, opting instead to issue carefully worded orders to Israel. Repeated attempts by South Africa’s legal team requesting that the court modify these measures have only been partially successful, due to the catastrophic humanitarian situation in Gaza and massive death toll that is close to 40,000 dead with thousands reported missing.

Unlike its advisory opinions, the ICJ’s rulings are binding, but the court has no means of enforcing them. For that reason, many international experts weigh the impact and importance of both AOs and rulings equally.

The ICJ’s AO issued on 19 July answers to questions put forward by the UN General Assembly in December 2022 relating to the legal consequences of Israel’s continued occupation of Palestinian territory seized in 1967 and how Israel’s policies and practices affect the legal status of its occupation.

According to the AO, all states are obliged to refrain from aiding or assisting Israel from maintaining its illegal occupation of the OPT. This clause directly impacts the US, Germany, the UK, and other states that are assisting Israel’s war machine.

Furthermore, it says that all international organisations including the UN are under an obligation “not to recognise” as legal the situation arising from Israel’s unlawful presence in the OPT.

The ICJ closed its decision by calling on the UN General Assembly, which requested the opinion, in addition to the Security Council, to take rapid action to end Israel’s occupation of Palestinian territory seized in 1967.

On 20 July, the European Union issued a supporting statement on the ICJ AO. “It is our moral duty to reaffirm our unwavering commitment to all ICJ decisions in a consistent manner, irrespective of the subject in question,” it said.

While Israel’s responses to this and previous ICJ rulings have consistently dismissed the court as irrelevant, some voices are cautioning that this posture will be difficult to continue nine months into Israel’s live-streamed war on Gaza.

An editorial in the Israeli newspaper Haaretz titled “The ICJ Just Demolished One of Israel’s Key Defenses of the Occupation” closed with a reminder of the court’s historic advisory opinion against Apartheid South Africa in 1971.

Back then, the court found South Africa’s occupation of Namibia to be illegal, an opinion that is believed to have significantly contributed to the growing global movement to boycott and sanction South Africa’s Apartheid regime despite US and British support.

It was eventually dismantled in 1991.

* A version of this article appears in print in the 25 July, 2024 edition of Al-Ahram Weekly