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This level of judicial consensus in such a politically polarized atmosphere lends support for viewing the court’s decision as authoritative when it comes to evaluating Israel’s behavior as an occupying power in relation to international humanitarian law.
The International Court of Justice overwhelmingly decided last week that Israel is no longer legally entitled to act as the occupying power in Gaza, the West Bank, and East Jerusalem, noting that its further presence in these territories is unlawful.
The decision took the form of an “advisory opinion” in response to two “legal questions” put to the ICJ by the United Nations General Assembly in 2022.
Israel declined to take part in the court proceedings except by way of a written statement objecting to the whole process as improper, arguing that Israel’s consent was needed before its governmental conduct could be legally evaluated by the ICJ, even in a process labelled as “advisory.”
Israel gives every sign of ignoring the ICJ as it works to “finish the job” in Gaza, while continuing the policies and practices associated with its approach to occupation since 1967.
Does being an “advisory opinion” rather than a formal judgment in a “contentious” case make a decisive difference in the political weight or legal authoritativeness of the outcome in this comprehensive legal scrutiny of Israel’s prolonged occupation of the Palestinian territories?
An important question is raised by the formal, obligatory format of the ongoing South African ICJ case alleging Israel is committing genocide in Gaza.
From Israel’s point of view, these two cases are not very different, beyond the ICJ focusing on the alleged legal wrongdoing associated with 57 years of prolonged occupation in one instance, and in the other, South Africa seeking the court’s support to end the Gaza genocide that started last October.
In both instances, Israel has denounced the ICJ for reaching legal conclusions that it says compromise its security and right to defend itself. With such reasoning, Israel gives every sign of ignoring the ICJ as it works to “finish the job” in Gaza, while continuing the policies and practices associated with its approach to occupation since 1967.
Israel’s language of rejection is clear, with the prime minister’s office noting in a statement: “Israel does not recognize the legitimacy of the discussion at the International Court of Justice in The Hague regarding the ‘legality of the occupation’—a move designed to harm Israel’s right to defend itself against existential threats.” Or in Prime Minister Benjamin Netanyahu’s cruder language, “No one will stop us.”
On a superficial level, this near-convergence of outcomes seems to neglect the intended distinction between what is “advisory” (and hence non-binding) and what is “obligatory” and binding. Upon more reflective consideration, this convergence is far deeper, grounded more in the evolving jurisprudence of the ICJ than in Israel’s criticisms of the process and refusal to implement the rulings in either case.
Also noteworthy is the fact that the U.S. and Australian judges cast their votes in line with the ICJ consensus, despite their governments being ardent supporters of Israel.
In its lengthy landmark decision on the issue of the Israeli occupation, the ICJ reached nine conclusions, none of which were opposed by more than four of the 15 participating judges.
This level of judicial consensus in such a politically polarized atmosphere lends support for viewing the court’s decision as authoritative when it comes to evaluating Israel’s behavior as an occupying power in relation to international humanitarian law—especially the Fourth Geneva Convention governing belligerent occupation—and international human rights law, especially the treaty prohibiting racial discrimination.
Such a consensus is strengthened by additional comments from judges from Global South countries (including Somalia and Lebanon) that go further than the advisory opinion itself to explore the relevance of the colonial background that informs the occupation of Palestine.
Also noteworthy is the fact that the U.S. and Australian judges cast their votes in line with the ICJ consensus, despite their governments being ardent supporters of Israel, with eyes closed to Israeli criminality in both the long occupation and the Gaza genocide.
As with the South African case, the ICJ gained widespread approval for so clearly putting law ahead of national identity. This kind of prioritization is missing from the political organs of the U.N., especially the Security Council, where affiliated flags take unquestioned precedence—and to be sure that the primacy of geopolitics is sustained, the permanent members, P5, get a veto (prompting Turkish President Recep Tayyip Erdogan to object with the pithy words: “The world is greater than five.”)
The ICJ formulates the substance of its legal analysis in language that intends to be obligatory with respect to Israel. It directs all states and the U.N. itself to implement its rulings on matters of illegality and the consequences of Israeli unlawfulness. While the decision is labelled “advisory,” as required by the ICJ framework, its pronouncements on the law are stated as if authoritative, and they are supported by the overwhelming majority of judges.
The ICJ also appears to be claiming the authority to tell three categories of political actors—Israel, all states, and the U.N.—what their obligations are with respect to its central finding that Israel’s prolonged presence is no longer legal and should be terminated as rapidly as possible.
This advisory opinion lends important authoritative support to several central Palestinian grievances with respect to international humanitarian and human rights law.
In the process of reaching this weighty conclusion, the ICJ found that Israel was responsible for blocking the Palestinian right to self-determination, wrongfully annexing Palestinian territory by force, violating the Fourth Geneva Convention through its large-scale settlement project, and relying upon discriminatory policies and practices to administer the occupied territories.
The few judges who refused to go along with these findings argued that the ICJ proceedings took insufficient account of Israeli security concerns and counter arguments.
Regardless, this advisory opinion lends important authoritative support to several central Palestinian grievances with respect to international humanitarian and human rights law, particularly concerning the lawfulness of controversial Israeli policies and practices in the occupied territories—and the legal duty of Israel, other states, and the U.N. to follow this decision up with concrete action.
The United Nations' highest court issued an advisory opinion arguing that Israel's large-scale expansion of settlements amounts to annexation, a crime under international law.
The International Court of Justice said Friday that Israel's decadeslong occupation of Gaza and the West Bank, including East Jerusalem, is unlawful and must end "as rapidly as possible."
The court's nonbinding advisory opinion was read aloud by ICJ President Nawaf Salam, a Lebanese judge and academic. Salam said the court determined based on "extensive evidence" that Israel is guilty of confiscating "large areas" of Palestinian land for use by Israeli settlers, exploiting natural resources, and undermining the local population's right to self-determination under international law.
The court pointed to "Israel's systematic failure to prevent or punish" settler violence and "demolition of Palestinian property" in the West Bank as part of its case that the Israeli government's actions in the occupied territories are indicative of an attempt to permanently annex land and forcibly transfer Palestinians from their homes.
"Israel is not entitled to sovereignty in any part of the occupied Palestinian territory on account of its occupation, nor can security concerns override the prohibition on acquisition of territory by force," said Salam.
The ICJ vote against Israel's occupation was 11-4. The court also voted to call on Israel to evacuate all settlers from the West Bank.
In a 12-3 vote, the ICJ said that all nations "are under an obligation not to recognize as legal the situation arising from the unlawful presence of the state of Israel in the occupied Palestinian territory and not to render aid or assistance in maintaining the situation created by the continued presence of the state of Israel in the occupied Palestinian territory."
The United States was among the countries that warned the ICJ against advising that Israel must swiftly end its occupation.
The ICJ handed down its opinion as the court is also considering a genocide case brought against Israel over its ongoing assault on the Gaza Strip—a devastating war that the court did not weigh as part of its new advisory opinion.
Trita Parsi, executive vice president of the Quincy Institute for Responsible Statecraft, applauded the ICJ's call for the dismantling of Israeli settlements and reparations for Palestinians harmed by Israel's occupation.
"The ICJ ruling in essence confirmed what the majority of people (except the West) already knew and have recognized: that Israel's occupation is illegal, that it is still occupying Gaza, it is annexing the West Bank, and Israel is an apartheid state," Parsi wrote on social media. "If there is any respect for international law, Western media must now include this in all its Israel coverage. Most don't even describe settlements as illegal!"
Nancy Okail, president and CEO of the Center for International Policy, said in a statement that "while the ICJ's action is nonbinding, countries that seek to uphold international law should respect the court's determination and take all appropriate steps to counter the injustices of the occupation and bring it to a peaceful end."
"At a minimum, countries should not engage in actions which help to perpetuate the occupation and its discriminatory, annexationist goals," said Okail. "In particular, the United States must end the unconditional supply of arms that Israel uses in connection with the dispossession and settlement of Palestinian land and other violations of Palestinian rights."
"This is an outrageous development," said the head of the Palestinian refugee agency. "Once again, the lives of U.N. staff were at serious risk."
The United Nations agency for Palestinian refugees said Thursday that it was forced to shutter its headquarters in occupied East Jerusalem after a mob of Israeli extremists set fire to the perimeter of the facility, causing significant damage and endangering staffers inside the building.
Philippe Lazzarini, commissioner-general of the U.N. Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), said late Thursday that the fire was the latest escalation by Israeli extremists who have been protesting outside the UNRWA compound for months, ginned up by the Israeli government's unsubstantiated claims about the agency staffers' ties to terrorist groups.
An independent probe released last month concluded that Israel "has yet to provide supporting evidence" that "a significant number of UNRWA employees are members of terrorist organizations."
In his statement Thursday, Lazzarini said U.N. staffers have "regularly been subjected to harassment and intimidation" and that the East Jerusalem compound "has been seriously vandalized and damaged."
"This is an outrageous development. Once again, the lives of U.N. staff were at serious risk," said Lazzarini. "In light of this second appalling incident in less than a week, I have taken the decision to close down our compound until proper security is restored."
This evening, Israeli residents set fire twice to the perimeter of the UNRWA Headquarters in occupied East Jerusalem.
This took place while UNRWA and other UN Agencies’ staff were on the compound.
While there were no casualties among our staff, the fire caused extensive damage… pic.twitter.com/ZqHFDNkiWC
— Philippe Lazzarini (@UNLazzarini) May 9, 2024
Attacks on the agency's East Jerusalem headquarters began in February after Arieh King, the far-right deputy mayor of Jerusalem, called on the Netanyahu government to kick the UNRWA "out of Israel and specifically from Jerusalem."
Lazzarini said that demonstrations "became violent" this week when Israeli protesters "threw stones at U.N. staff and at the buildings of the compound."
"On several occasions, Israeli extremists threatened our staff with guns," said Lazzarini. "It is the responsibility of the state of Israel as an occupying power to ensure that United Nations personnel and facilities are protected at all times."
"I call on all those who have influence to put an end to these attacks and hold all those responsible accountable," he continued. "The perpetrators of these attacks must be investigated and those responsible must be held accountable. Anything less will set a new dangerous standard."
Espen Barth Eide, Norway's foreign affairs minister, said Friday that he was "shocked" by the attacks on UNRWA's East Jerusalem headquarters and echoed Lazzarini's call for an investigation.
"As host country, Israel has a duty to protect U.N. personnel and premises at any time. The incidents must be investigated, those responsible must be held accountable. UNRWA is the lifeline for millions of Palestine refugees."
"Forced displacement and military operations in Rafah are worsening an already catastrophic situation. We need a cease-fire now."
Norway was among the nations that did not suspend funding for UNRWA as the United States, United Kingdom, Germany, and other Western countries cut off donations to the agency earlier this year following Israel's baseless allegations against the body's employees. UNRWA's chief has accused the Netanyahu government of launching a "concerted campaign" to destroy the agency.
The U.S., historically UNRWA's largest donor, has yet to resume funding for the agency, which is the primary relief organization operating in the Gaza Strip. Legislation that President Joe Biden signed into law last month prohibits U.S. government funding for UNRWA until at least March 2025.
The latest attack on UNRWA's East Jerusalem headquarters came as the agency worked to aid displaced Palestinians in Rafah, the overcrowded city in southern Gaza that Israeli ground forces invaded earlier this week, worsening an already grave humanitarian disaster.
UNRWA wrote in a social media post Friday that it has been forced to close 10 of its 34 medical points in Rafah amid the Israeli military's attack on the city.
"Forced displacement and military operations in Rafah are worsening an already catastrophic situation," the agency said. "We need a cease-fire now."