Why the ICJ ruling on Israel's occupation will be hard to ignore

In a comprehensive, highly researched advisory opinion, the International Court of Justice (ICJ) declared last week that all activities carried out by Israel in the occupied Palestinian territories are illegal and that its unlawful presence should be brought to an end and reparations made to Palestinians.

The extensive list of breaches of international law includes the building and expansion of Israeli settlements in the West Bank and East Jerusalem, the transfer of settlers into the occupied territories, the use and exploitation of natural resources in Palestinian territory, the annexation and imposition of permanent control over Palestinian land, house demolitions, and other discriminatory restrictions on Palestinians.

Crucially, the ICJ established that Israel has no right to sovereignty over the territories and that its policies and practices "amount to annexation", referring to it as the forcible acquisition of occupied territory by an occupying power.

It also found Israel responsible for racial segregation and apartheid noting that its legislation and measures serve to "maintain a near-complete separation" in the West Bank and East Jerusalem between the settler and Palestinian communities.

The over 80-page opinion marks the first time the ICJ has deemed Israel’s long-term occupation of Palestinian territory “unlawful”, breaching international human rights and impeding Palestinian self-determination. Francesca Albanese, UN Special Rapporteur on the Occupied Palestinian Territories, called it a “historic day for international justice and the decolonisation of Palestine”.

The unprecedented ruling stems from a request in December 2022 by the UN General Assembly (UNGA) for the court to give its view on the legal status of Israel’s 57-year occupation of Palestinian land, and to consider the legal consequences of Israel’s policies and practices in the occupied territories and the consequences of Israel’s conduct for other states and the UN.

The court’s long-awaited opinion, though not binding or enforceable, is undoubtedly a significant legal development grounding Israel and all states and international organisations in the basics of international law.

With its decision, the world’s top court formalises what Palestinian, Israeli, and international human rights organisations have repeatedly affirmed for decades: Israel’s occupation is unlawful, and it must end “as rapidly as possible”.

“Palestinians have always said that what Israel is doing is illegal. Now it is time for world to act,” Palestinian human rights lawyer Diana Buttu posted on X.

“The court was unequivocal that the Israeli occupation of Palestine is illegal. The decision is a complete vindication of the facts on the ground,” Mira Naseer, a legal officer from the International Centre of Justice for Palestinians (ICJP), told The New Arab.

The ICJ, the highest global legal authority, delivered such an unambiguous position that it would be implausible for other states to claim that the Palestinian territories are “disputed” or that the illegality of Israel’s occupation is in dispute.

“That the occupation is unlawful has been well-known. But it really makes a difference to have the court stating that,” Heidi Matthews, an assistant professor of law specialising in international criminal law and the law of war, told the TNA.

She also said that one noteworthy element in the ruling is that the tribunal clearly stated that Gaza remains under Israeli occupation along with East Jerusalem and the West Bank, thus requiring the respect of international humanitarian law.

“It’s a very clear confirmation that Israel is still responsible for the occupied population of Gaza,” the legal scholar pointed out. Although it withdrew its military and settlements from the Gaza Strip in 2005, Israel has continued to exercise effective control over the Palestinian territory.

The court further ordered Israel to immediately refrain from all new settlement activity, evacuate all settlers from the territories, and withdraw its forces from all parts of the occupied territories. In addition, it requires Israel to pay reparations to Palestinians for damages resulting from its occupation. That means returning their land and assets seized since 1967 and allowing all Palestinian displaced during the occupation to return.

In another major step, the world’s highest court advised that other states and international organisations are under an obligation not to recognise the occupation as legal nor to provide aid or assistance that would maintain the current status quo.

By placing responsibility on all states and the UN to end Israel’s countless violations, the ICJ takes a rigorous stance in the face of Israel’s blatant disregard of international law and inaction by the international community that has allowed Israel to act with total impunity for too long.

Crucially, the landmark judgement upholds the rights of Palestinians who have endured systematic human rights violations under decades of Israel’s oppressive military occupation.

Over the last 57 years, Palestinians have seen their homes demolished and their land expropriated to build and expand Israeli settlements and have faced restrictions on freedom of movement, denial of access to land, water, and natural resources, and constant violence from both Israeli authorities and settlers.

"That the occupation is unlawful has been well-known. But it really makes a difference to have the court stating that"

Israel has built about 160 settlements housing some 700,000 Jews in the West Bank and East Jerusalem since 1967. The ICJ confirmed that settlements violate Article 49 of the 4th Geneva Convention which prohibits an occupying power from transferring its population into occupied territory, considering it a “war crime”.

While the court’s ruling will have no immediate impact on the lives of Palestinians, it carries political weight in clearly stating that Israel is illegally occupying Palestinian territory. It also outlines how states are obligated to make Israel comply with its international obligations.

Ultimately, it will be down to UN member states to enforce the ICJ’s judgement, which means largely Western governments will have to review their policies which have enabled Israel’s violations of international law and the oppression of Palestinians over the past six decades. 

Moving forward, the ICJ's findings will go to the UNGA which will decide how to respond, including the option of adopting a resolution.

“The onus of implementing this decision falls on the General Assembly and Security Council,” Naseer said, highlighting how the two UN institutions must act upon the opinion.

“We’re going to see activity in both bodies soon,” Matthews anticipated. “Even if an advisory opinion is not binding, it constitutes law.” For the professor, the legal conclusions will have a policy impact at a state and international level, and likely play a “persuasive” part within national, international, and regional courts.

In light of the ICJ’s strongly worded pronouncement, with all the legal and moral standing its opinion holds, it should be expected that a number of UN members will consider follow-up action on the matter.

That, in turn, could potentially prompt countries like the US, UK, Germany and others to reassess their bilateral relationships with Israel along with their largely unconditional political, financial, and military support.

The ICJ’s judgement sets the guidelines to inform future legal action or resolutions in other international bodies and has the potential to shape the policies of states and UN processes.

Ultimately, though, real political pressure will be needed to see action from the international community that leads to an end to the unlawful presence of the State of Israel in the occupied Palestinian territories, in particular from Israel’s most steadfast allies.

Alessandra Bajec is a freelance journalist currently based in Tunis.

Follow her on Twitter: @AlessandraBajec