Last month, the International Court of Justice (ICJ) issued a historic advisory opinion declaring Israel’s ongoing occupation of Palestinian territory—comprising the West Bank, East Jerusalem, and the Gaza Strip (together the Occupied Palestinian Territory, or OPT)—to be illegal under international law. The ICJ opinion also called for the immediate and total withdrawal of Israeli settlers from the OPT.
Last month, the International Court of Justice (ICJ) issued a historic advisory opinion declaring Israel’s ongoing occupation of Palestinian territory—comprising the West Bank, East Jerusalem, and the Gaza Strip (together the Occupied Palestinian Territory, or OPT)—to be illegal under international law. The ICJ opinion also called for the immediate and total withdrawal of Israeli settlers from the OPT.
Given Israeli and U.S. intransigence, the nonbinding decision is unlikely to change the course of the current war and will do little to prevent the imminent regional conflagration. But it will have profound diplomatic and political implications beyond this moment and is a major boon to the Palestinian solidarity movement’s program of isolating Israel on the international stage. Whether it alters U.S. policy in the near term, particularly in the event of Vice President Kamala Harris’s electoral victory, is a question of political will: Though the Biden administration claims to abide by international law and has already declared Israeli settlements illegal, it has declined to use the ample leverage at its disposal to pressure Israel into compliance.
The 83-page advisory opinion came in response to a request from the U.N. General Assembly, which in a December 2022 resolution asked the court to opine on the legality of Israel’s occupation and the consequent ongoing denial of Palestinian rights.
The opinion is the second time the top international court has taken up the Israeli-Palestinian conflict. (A third, South Africa’s case accusing Israel of committing genocide in Gaza, is ongoing.) In 2004, the ICJ, in an advisory opinion, declared that the border wall Israel erected loosely following the Green Line separating Israel proper and the West Bank—including significant incursions into the OPT—violated international law and must be torn down. However, this is the first instance in which the court addressed the legality of the occupation as such.
What did the ICJ advisory opinion establish?
The opinion began by determining the legal status of the territory in question, holding that East Jerusalem, the West Bank, and Gaza have all been under Israeli occupation since 1967. The pronouncement reaffirmed that despite Israel’s 2005 withdrawal of settlers from Gaza, it has retained direct economic and military control of the area’s land, sea, and air borders and regulates the inflows and outflows of goods and people. This has been especially true since Hamas’s attack on Oct. 7, 2023, with Israel obstructing the flow of aid into Gaza. Thus, Israel retains its obligations as an occupying power over the whole of the OPT, which arise from the Fourth Geneva Convention, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and other treaties.
Next, the court determined that Israel’s practice of transferring settlers into the OPT along with civilian infrastructure is an attempt to integrate settlements into the territory of Israel in violation of the Fourth Geneva Convention. The court noted that by 2023, nearly 700,000 settlers resided in the West Bank and East Jerusalem. This is a drastic increase from approximately 520,000 settlers in 2012—in the first six months of 2023, Israel advanced a record-breaking 12,855 new settler housing units across the West Bank.
The opinion also found Israel’s regular diversion of natural resources and the displacement of Palestinians in the OPT (the court notes the displacement of thousands of Palestinians in the past three years alone) to be a violation of international law. Finally, the court determined that Israel’s regime of comprehensive restrictions on Palestinians throughout the OPT constitutes systematic discrimination under the relevant human rights treaties. Taken together, the court declared that these policies and practices represent a violation of the Palestinian people’s right to self-determination—a right the court had already established in its 2004 advisory opinion.
Responding to the second question posed by the General Assembly, the court ruled that Israel’s occupation is illegal and that it is obligated to withdraw from the OPT and transfer the settlers residing there into Israel proper. The court also added that Israel must provide reparation for the damage caused by its illegal acts to the affected Palestinians, including returning land and other confiscated property and allowing the reentry of those who have been displaced since 1967.
Lastly, the court declared that states and international organizations have a duty not to recognize the occupation as legal and to work to bring Israel’s unlawful presence in the OPT to an end. However, it left to the other bodies of the United Nations—namely, the General Assembly and the Security Council—the task of determining what specific actions to that end are required.
What impact could the opinion have?
The opinion is a significant step forward in the long struggle for Palestinian self-determination. In essence, it supports a growing international consensus that the state of Palestine already exists de jure despite its actual creation as a sovereign entity being materially impeded by Israel’s belligerent occupation.
This marks a conceptual displacement of the Oslo paradigm, according to which a Palestinian state can only be achieved through U.S.-mediated bilateral negotiations—the so-called peace process—which, marred from the outset by power imbalances, has been abandoned by a succession of increasingly right-wing Israeli governments. However, it is important to note that the opinion excludes acknowledgement of the Nakba, the forced displacement of more than 700,000 Palestinians from their ancestral lands in 1948, thus declining to address the long-standing Palestinian demand for a right of return for those displaced and their descendants.
More pressingly, the decision is unlikely to meaningfully alter Israel’s ongoing genocidal war in Gaza or prevent the rapidly accelerating threat of a regional war. Israel has already flouted binding legal dictates from the U.N. Security Council and the ICJ itself, vis-à-vis South Africa’s case, both of which directly ordered it to end the war. But so long as it sustained the diplomatic and military backing of its chief sponsor, the United States, the Israeli leadership has calculated that it can continue its campaign, the law be damned.
But there is some hope. In the medium term, the impact of the decision will be felt as states alter their foreign policies so as to conform with the requirements of international law. In practice, the decision portends the further isolation of Israel on the international stage through targeted sanctions against settlers, embargoes on goods produced in the OPT, and other diplomatic actions such as public condemnation.
Already, the Labour government in the United Kingdom, one of Israel’s principal allies, is reportedly considering an arms embargo against the state as a consequence of the advisory opinion. Nine nations—including Ireland, Norway, and Spain—have recognized the state of Palestine since October, and this and other formal legal processes will accelerate that trend.
How was the ruling received?
Since its release, the ICJ opinion has garnered mixed reception. Palestinian Foreign Minister Riyad al-Maliki has called it a “watershed moment for Palestine, for justice, and for international law,” whereas Israeli Prime Minister Benjamin Netanyahu has condemned the ruling as “mendacious,” with Israeli Finance Minister Bezalel Smotrich even calling to formally annex the West Bank. Though the U.S. State Department issued an ambivalent statement, affirming that “Israel’s program of government support for settlements is … inconsistent with international law,” it criticized the breadth of the court’s opinion.
Washington’s unequivocal backing of Israel is the key impediment to Palestinian self-determination and regional peace. This ruling, in addition to South Africa’s ongoing genocide case against Israel at the ICJ and forthcoming criminal prosecutions at the International Criminal Court, can provide a basis for an incoming Harris administration to condition that support on Israel’s compliance with its obligations under international law. In practice, this would mean telling the Israelis that unless they follow the law, the United States will pause all arms shipments and decline to veto enforcement resolutions at the U.N. Security Council. Although insufficient, these steps are likely necessary ones on the path to breaking the U.S.-Israel alliance and achieving justice for Palestinians.
The post ICJ Opinion on Israeli Settlements, Explained appeared first on Foreign Policy.
