The position of the ICJ on the Israeli-Palestinian conflict

By Insaf Rezagui

In this new article in the series “Palestine, tomb of international law?”, we return to the role of the International Court of Justice (ICJ) in the resolution of the Israeli-Palestinian conflict.

The International Court of Justice, which has its seat in The Hague in the Netherlands, is the principal judicial organ of the United Nations. Its role is to resolve legal disputes submitted to it by States (contentious function whose judgments rendered are obligatory and binding) and to render advisory opinions following legal questions posed by organs or specialized agencies of the United Nations. (advisory function whose opinions are not binding) under Article 96 of the Charter of the United Nations. The United Nations General Assembly (UNGA) is the UN body that has questioned the Court the most since its creation. In the Israeli-Palestinian conflict, the two requests for opinions (the Wall Case in 2004 and the Continued Israeli Occupation Case in 2023-2024) were addressed to the Court by the UNGA.

The mobilization of the International Court of Justice is part of the strategy of recourse to international organizations and international law carried out by the Palestinian Authority (PA) for twenty years. The objective of the PA is to place the Palestinian question at the heart of the international agenda, to highlight the persistent violations of international law by the Israeli occupying power and, above all, to achieve the establishment and recognition of a State of Palestine. With this strategy, Palestine has already joined around twenty international organizations (UNESCO, Interpol, ICC, etc.), has ratified around a hundred multilateral treaties (including the Statute of the International Criminal Court) and is deploying a real process of legalization, with recourse to international courts. Among these jurisdictions, the International Court of Justice constitutes the heart of this process.

The objective of the referral to international courts by the Palestinian Authority and its allies is then to highlight the legal framework inherent to this conflict, to legally affirm the right of the Palestinian people to self-determination and to highlight the all violations of international law by Israel in order to engage its international responsibility.

It is in this sense that numerous cases relating to the Palestinian question have been handled or are currently being handled by the Court. Among these cases, two are central to this strategy: the Wall affair in 2004 which allowed the Palestinian Authority to become aware of the role that international law could have in this conflict and the current case relating to the consequences of the persistence of the Israeli military occupation of the Palestinian territory on the right to self-determination of the Palestinian people. These two cases are essential for understanding the legal framework applicable to this conflict and the relevant rules that should apply.

The first affair - that of the Wall - marks the beginnings of the process of legalization of the Palestinian Authority. For the first time, an international court precisely establishes the legal framework inherent to this international armed conflict, rules on the right to self-defense invoked by Israel, highlights the right of the Palestinian people to self-determination, recalls the relevant principles, including international humanitarian law and international human rights law, and establishes the legal obligations incumbent upon the parties and international society as a whole. Although this opinion therefore has no binding legal force, it nonetheless remains foundational to the establishment of the Israeli occupation regime in Palestine. We will develop here some fundamental points of this opinion.

Establishing the jurisdiction of the Court to rule on this conflict

Before ruling on the merits, the Court recalls that it is competent to answer the General Assembly's question whether the construction of a wall by Israel, which largely encroaches on Palestinian territory, was lawful. . Two arguments are invoked by the Court to justify its jurisdiction.

First, the ICJ affirms that - contrary to what Israel and the United States assert - the General Assembly has the right to question the Court on the Israeli-Palestinian conflict and that it has therefore not exceeded its competence within the meaning of Article 12 of the Charter which states: "As long as the Security Council fulfills, with regard to any dispute or situation, the functions assigned to it by the present Charter, the "The General Assembly should not make any recommendation on this dispute or situation unless requested to do so by the Security Council." Furthermore, Article 24 of the Charter recalls that the Security Council has primary (but not exclusive) responsibility for maintaining international peace and security. However, the ICJ notes that, in the Israeli-Palestinian conflict, the UNSC does not fulfill its mandate due to numerous American vetoes. Furthermore, UN practice allows the UNGA to adopt resolutions “in any case where there appears to be a threat to the peace, a breach of the peace (...) and or, because unanimity is not has not been able to be achieved among its permanent members, the Security Council is failing to fulfill its primary responsibility” (resolution 377, known as the Acheson resolution). Furthermore, already in 2004, the Court noted the inaction of the Security Council.

Second, the Court clarifies that the Israeli-Palestinian conflict is not a purely political dispute, which does not raise any legal questions. The request of the General Assembly which is posed to the jurisdiction of The Hague “targets the legal consequences of a given factual situation, taking into account the rules and principles of international law (...)”. Therefore, the question asked is “likely to receive a legally founded answer”.

Even today, in the case pending before it, the position of the Court should be the same: the Security Council is not fulfilling its mandate of maintaining peace, due to American vetoes, the most recent having intervened on February 20, 2024 in a draft resolution that called for a ceasefire in the Gaza Strip. In addition, the question raised raises numerous legal problems (right to self-determination, right to self-defense, occupation, annexation, sovereignty, discriminatory measures against a people, etc.).

2. The question of self-defense

On the merits, the Court first responds to Israel which justified the construction of a separation wall on the basis of its right to defend itself against attacks by Palestinian armed groups (article 51 of the UN Charter) . Even today, Israel asserts that its military operations in Gaza and the West Bank aim to respond to armed aggression from Palestinian armed groups, including Hamas, including the deadly attacks of October 7. Armed aggression is “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State” (UNGA, resolution 3314, December 14, 1974). However, at no time does Israel claim that it is responding to violence from another state, as it does not recognize the existence of a State of Palestine.

If the practice of recent years calls for an evolution of the regime of self-defense in order to integrate the right of a State to defend itself against armed attacks by non-State entities, the Court notes "that Israel exercises its control on the occupied Palestinian territory and that, as Israel itself indicates, the threat it invokes to justify the construction of the wall finds its origins inside this territory (...). Consequently, the Court concludes that section 51 of the Charter is irrelevant to the particular case.” In short, an occupying power cannot invoke the regime of self-defense in its relations with the territory it occupies.

  3. Legal rules applicable to the Israeli occupation

Then, the Court highlights the rules applicable to this international armed conflict:

International humanitarian law: as an occupying power, Israel must respect IHL by protecting the populations placed under its control. This means that the Jewish State must respect the rules provided for in the Fourth Geneva Convention relating to the Protection of Civilian Persons in Time of War of 1949.

International human rights law (IHRL): contrary to what Israel claims, IHRL applies even in times of armed conflict except in the case of derogation clauses. Therefore, Israel must respect the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights of 1966 which it has ratified. Article 1 common to these two pacts stipulates: “All peoples have the right to self-determination. By virtue of this right, they freely determine their political status and freely ensure their economic, social and cultural development.”

On the basis of these rules, the Court concludes that Israel has violated a certain number of its international obligations, preventing the Palestinian people from self-determination.

4. Israel’s violations of international law

Israel's violations of international law stem in particular from the adoption of a set of Israeli legislative and regulatory acts. These are part of colonization and occupation policies put in place and assumed by the Israeli authorities, which directly finance the colonies, infrastructure and roads allowing settlers to establish themselves and move around in the West Bank, etc. . These policies are in violation of United Nations Security Council resolutions such as Resolution 2334 of December 23, 2016, which calls on Israel to “immediately and completely stop all its settlement activities in the Occupied Palestinian Territory.”

In addition, Israel can engage its international responsibility and must repair the damage caused to Palestinian victims of occupation and colonization. The Court specifies that these reparations must “as far as possible, erase all the consequences of the unlawful act and restore the state which would likely have existed if the said act had not been committed”. This involves Israeli withdrawal from the West Bank, East Jerusalem and the Gaza Strip, restitution to the Palestinians of their lands and other seized property and/or compensation if restitution is not possible, and satisfaction procedures (conduct investigations, prosecute people who have violated these obligations, etc.).

5. Obligations enforceable against all States

Among the obligations violated by Israel, some are erga omnes obligations, that is to say they are enforceable against all States. Among these obligations, the right to self-determination of peoples and certain principles of international humanitarian law. Therefore, no State should recognize the situation resulting from these violations, namely the construction of the Wall and the Israeli occupation and colonization. Finally, States have the obligation “not to provide aid or assistance in maintaining the situation” and must “ensure Israel respects international humanitarian law”.

One of the consequences should logically be the recognition by all States of the State of Palestine. Indeed, the right of peoples to self-determination covers a political dimension: the people concerned must be able to freely determine their political status. In the Palestinian case, it is the creation and recognition of a State of Palestine. The right to self-determination being an erga omnes obligation, States should therefore respect and implement it by recognizing the State of Palestine.

Also, the advisory opinion of the International Court of Justice rendered on July 9, 2004 makes it possible to highlight the legal framework inherent to this conflict and the legal consequences resulting from it. Twenty years later, the legal issues remain the same, with the difference that Israeli occupation and colonization are accelerating. Between 2000 and 2022, the colonization of Palestine increased by 222%. More than 700,000 settlers are established in the West Bank and East Jerusalem. Israel intends to continue its colonial policies and practices and now assumes that it wants to annex the entirety of Palestine, in order to exercise its sovereignty from the Mediterranean Sea to the Jordan River. The new challenge of the upcoming advisory opinion is therefore to determine the legal consequences of the permanence of the Israeli occupation.