The ICJ’s president, Judge Nawaf Salam of Lebanon, issued the advisory opinion during a hearing on the legal consequences of Israel’s actions in the occupied Palestinian territory.
The ICJ said it had “the power to issue advisory opinions” on the legal consequences of Israel’s occupation of Palestine.
The court noted that the question from the United Nations (UN) General Assembly was a legal question and there was no justification for not issuing an advisory opinion on the matter.
The Court noted that since the issue on which its opinion was sought was not a bilateral one, as countries such as the United States and the United Kingdom claim, but a matter of grave importance that concerns the entire UN General Assembly, “there is no need to seek an opinion without the consent of the Israeli side.”
ICJ finds that Israel exercises occupational power in Palestinian territory
The Court found that the Occupied Palestinian Territory does not consist of fragmented and separate areas, but rather constitutes a single territorial unit including the West Bank, East Jerusalem and Gaza.
Noting that Israel exercises the authority of an occupying power in Palestinian land, including Gaza, Divan said Israel continues to exercise effective control over Gaza and therefore has the status of occupying power there.
The Court stressed that Israel’s obligations in the Occupied Palestinian Territory include the Geneva Conventions on the laws of war and customary international law.
The ICJ found that the Oslo Accords did not “eliminate” the rules on the occupation and Israel’s obligations.
The ICJ noted that the concept of occupation is a temporary situation and that the length of occupation does not change the legal status of occupied territories, and said Israel’s acts of annexation of Palestinian land were “illegal.”
It was also emphasized that Israel’s settlement policy in the occupied territories violates the Geneva Conventions.
Discriminatory policies against Palestinians
The ICJ noted that various Israeli practices against Palestinians in the Occupied Territories “amount to discrimination” and that Israel has pursued discriminatory policies against Palestinians on the basis of race and ethnicity, stressing that these practices are in violation of the International Covenant on Civil and Political Rights.
The ICJ noted that the extensive laws adopted by Israel as an occupying power give special treatment to Palestinians and found Israel’s policies discriminatory.
The Court opined that the unlawful policy violated Israel’s obligation to respect the right of self-determination of the Palestinian people.
The Court found that the right of the Palestinian people to self-determination is inalienable and cannot be subject to the will of an occupying power.
The ICJ said Israel should compensate those harmed by its unjust practices, including by returning occupied territories and cultural property, paying damages, evicting all settlements, demolishing the wall built in the occupied Palestinian territory and allowing Palestinians to return.
The court stressed that it is an “urgent necessity” for the United Nations to end the conflict between Israel and the entire Palestinian territories and establish a just and lasting peace in the region, and said all states have a legal obligation not to recognize Israel’s existence and not to provide aid or assistance in the occupied Palestinian territories.
The Court said Israel must cease all new settlement activity and repeal all legislation that creates and maintains the illegal situation, including discriminatory legislation.
The ICJ said Israel’s occupation of the occupied Palestinian territories should end as soon as possible.
What is an advisory opinion?
As the principal judicial organ of the United Nations, the Court’s tasks include, first, to resolve legal disputes arising between States in accordance with international law, and, second, to give advisory opinions on legal questions referred to it.
Competent UN organs may seek advisory opinions from the ICJ on questions related to international law only if they relate to the UN’s organs and fields of activity, but states may not seek advisory opinions from the Court.
The ICJ issued a non-binding advisory opinion on the legal implications of Israel’s policies and practices in occupied Palestine.
What is the impact of the advisory opinion?
It has been stated that although the advisory opinions issued by the ICJ are not binding, many countries and organisations take them into consideration and act in accordance with the opinions given.
Advisory opinions also indicate how the Court is likely to rule in future cases on similar issues and can be used as a tool of political pressure against states that act contrary to the advisory opinion.
After the Court, in its 2004 advisory opinion on a wall built by Israel on Palestinian land, found that the wall violated the law, many countries and companies refrained from building the wall in question or donating construction materials that they sold. It is worth noting that Israel made the condition that the materials were not used in the construction of the wall.
To reiterate, following the ICJ’s advisory opinion of July 22, 2010 stating that international law does not prohibit a state from unilaterally declaring independence, the legitimacy of Kosovo’s independence was strengthened and the number of countries recognizing its independence increased.
If the ICJ finds that the occupation violates international law, it is expected to increase pressure for Israel to end its violations in Gaza and other Palestinian territories, as the ruling would have consequences for Israel and other countries.
In addition, countries that provide military, political and financial support to Israel are expected to have to respond to calls from the international community to end their support.
This advisory opinion is different from the case before the Israeli Court of Justice.
While South Africa’s lawsuit against Israel at the International Court of Justice for breach of the Genocide Convention amounts to a contentious legal action between the two countries, an advisory opinion does not amount to a contentious legal action between the two countries.
In an advisory opinion, there is no distinction between defendant and plaintiff, and the ICJ expresses its opinion on a question raised by a UN agency or organization relating to its field of activity.
Pursuant to Article 66 of the Statute, UN Member States have the right to make written and oral representations on the matter on which an advisory opinion is sought.
Unlike in contentious cases, ad hoc judges (judges for each case) are not appointed and advisory opinions are decided by the ICJ’s 15 permanent judges.
Moreover, while this genocide case only deals with genocide crimes and violations committed in Gaza, the scope of the advisory opinion includes violations of many rules of international law not only in Gaza but also in all Palestinian territory, including by Western countries, in particular the occupation and annexation of the Bank and East Jerusalem.
