Adalah: In Light of Israel’s Rapid Annexation Measures, Racist Policies and Complete Denial of Palestinians’ Right to Self-Determination, ICJ’s Landmark Advisory Opinion Requires Immediate Action by UN and Third States

On 19 July 2024, the International Court of Justice (ICJ) issued its advisory opinion on the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory (OPT), including East Jerusalem. The Court found that Israel’s 1967 occupation of the territory is illegal due to the severity of the violations of international law, including the right of the Palestinian people for self-determination and the prohibition against segregation and apartheid. The Court determined that the State of Israel is obligated to bring an end to its unlawful presence in the OPT as rapidly as possible, evacuate all of its settlers and pay reparations to Palestinians for damages caused by the occupation.

CLICK HERE to read the ICJ’s Advisory Opinion of 19 July 2024

CLICK HERE to read the ICJ’s Summary of the Advisory Opinion of 19 July 2024

Adalah commented:
 “The ICJ’s landmark opinion from the world’s highest court has determined that Israel’s occupation of Gaza, the West Bank, and East Jerusalem, the longest occupation in modern history from 1967 until today, is illegal and must come to an end. We have seen many of the policies covered in the Advisory Opinion - settlement expansion, annexation, land confiscation, segregation and apartheid, and extreme violence against Palestinians by settlers and Israeli forces - over the last years accelerate and become even more aggressive. These policies against Palestinians, all bolstered by decisions of the Israeli Supreme Court, constitute an on-going systematic oppression of Palestinian rights. In light of Israel's blatant denial of the Palestinians’ right to self- determination, and its position that the Jewish people have exclusive rights on all the areas of historic Palestine, it is imperative that the UN and third states take immediate action to bring effect to the Court’s conclusions.”

Chronology of the procedure and the Advisory Opinion

The proceedings were initiated by a 30 December 2022 UN General Assembly request for the ICJ to issue an advisory opinion on 1) the legal consequences arising from “the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967;” and 2) how do such policies and practices of Israel affect the legal status of the occupation and what are the legal consequences that arise for all States and the UN?

The Court's decision followed public oral hearings held in February 2024, which saw participation from over 50 states. Israel did not participate in these hearings.

Under International Humanitarian Law (IHL), belligerent occupation is not illegal, however, it is only a temporary status that does not grant the occupying power sovereignty over the territory it occupies. The Court found that the expansion of settlements, the application by Israel of its domestic law in occupied territory, confiscation of land and natural resources, and other policies and practices amounted to violations of the prohibition against forcible acquisition of territory and that large areas of the West Bank have been annexed, specifically East Jerusalem and Area C. The Court also found that the seriousness of the violations of international law including the right of the Palestinian people to self-determination and Article 3 of the International Convention on the Elimination of all forms of Racial Discrimination (CERD), which prohibits segregation and apartheid, rendered the occupation illegal.

While the Court decided to not rule on the situation of the Gaza Strip following 7 October 2023, the Court definitively clarified that the Gaza Strip has been occupied since 1967. The Court noted that even following the “Disengagement plan” (2005), which removed Israeli settlers and soldiers from within Gaza, Israel continued to hold effective control over the Gaza Strip, as it remained able to and continued to exercise key elements of authority over it.

The Advisory Opinion carries a number of important implications, particularly for the UN and third-party states. First, the opinion examined a number of international legal violations, including settlements, resource confiscation, transfer of population, home demolitions that create an environment that forces Palestinian to leave, Israeli settler violence and impunity. Many of these violations carry criminal liability under the Rome Statute of the International Criminal Court (ICC). Additionally, the Court explained that the mechanisms established to bring a permanent change in the demographic characteristics of occupied territory can amount to annexation. Finally, the Court called on Israel, the UN, and third states to end the occupation, to ensure recognition of the distinction between Israel and the OPT, and not to aid or assist Israel’s presence in occupied territory.

Rapid advancement of annexation policies under the current Government

The Advisory Opinion comes at a critical time when Israel’s annexation and forcible displacement policies have become even more pronounced and explicit. These efforts have significantly accelerated since Netanyahu’s coalition took office at the end of December 2022, and are enshrined in the coalition agreements and guiding principles of the government.^[1] The first of the fundamental guiding principles of the government states that, “The Jewish people have an exclusive and inalienable right over all areas of the Land of Israel. The government will promote and develop settlements in all parts of the Land of Israel, in the Galilee, the Negev, the Golan, Judea and Samaria [the West Bank].”^[2] This principle even goes beyond the 2018 Jewish National State Law, which has distinctive apartheid characteristics. Article 1 of the law defines self-determination as unique to the Jewish people within the State of Israel.

Further undermining the right of self-determination to the Palestinian people, just one day before the ICJ advisory opinion, 18 July 2024, the Israeli Knesset passed a resolution labeling Palestinian statehood an “existential danger to the State of Israel.”

The state is rapidly advancing policies of Jewish supremacy and apartheid aimed at eventually implementing full Israeli sovereignty over the West Bank. In June 2023, Adalah issued a position paper analyzing the acceleration of annexation steps in the West Bank under the current far-right government. This paper identifies three main categories of such steps: (1) institutional changes and the transfer of authorities to government offices, (2) legalizing outposts and expanding existing settlements, and (3) the direct application of Israeli law in the OPT.

CLICK HERE to read Adalah’s position paper on annexation

CLICK HERE to read more about Adalah’s analysis of the coalition agreements and guiding principles.

Further recent steps include the Security Cabinet's decision on 27 June 2024 to "regularize" under Israeli law five illegal outposts (Evyatar, Givat Assaf, Sde Efraim, Heletz, and Adorayim) under the pretext of sanctioning the Palestinian Authority following its recent diplomatic steps. Additionally, Minister Smotrich’s declaration of 800 hectares (1,977 acres) in the occupied West Bank as state land, aimed at facilitating settlement construction on Palestinian land, blatantly violates international law and highlights the flagrant disregard for international legal norms resulting from the transfer of such authorities to Minister Smotrich.^[3] In February 2023, a memorandum of understanding was signed pursuant to the coalition agreements granting Minister Smotrich authority over most civil matters in the West Bank including directing policies for the Coordination of Government Activities in the Territories (COGAT).^[4] For this purpose, the government thus established a separate ‘civilian’ system named the “Settlement Administration” within the Israeli governing system in the West Bank, entrusted with implementing the powers of Minister Smotrich, along with leading and implementing reforms aimed at improving the governmental services provided to Jewish settlements in the West Bank. Adalah sent a letter to the Attorney General and other Israeli authorities on 25 March 2024 demanding that the memorandum be canceled and arguing that the agreement serves to exacerbate ongoing breaches of international law in the OPT.

In March 2023, a law passed amending the Disengagement Plan which led to the commander of the army in the West Bank issuing a decree on 10 May 2024 that lifted prohibitions on settler residence in areas in the north of the West Bank. This decree effectively removes any legal prohibition for Jewish settlers to re-establish settlements that were evacuated as part of the disengagement plan. Ahead of the passage of the bill, Adalah sent a letter arguing that the amendment violates the IHL prohibition on exploiting occupied territory for political and civilian purposes, including the construction of settlements.

Other recent Knesset bills aim to benefit settlements by various means, such as redistributing earnings of wealthier local authorities from city taxes, and including the southern Hebron Hills region in the West Bank into the Naqab (Negev, southern Israel). On 9 June 2024, Adalah challenged a law amending the Municipal Ordinance (No. 157), 2024, passed in April 2024. This new law authorizes the Minister of Interior to declare by decree that revenues from general property taxes will be shared among various local authorities, including Jewish settlements in the occupied West Bank. The new law seeks to equate the status of settlements in the West Bank with towns within Israel, effectively annexing occupied territories, violating IHL, and constituting a crime of aggression under the Rome Statute.

Annexation and settlement expansion are not merely manifestations of a political ideology or individual plans but are official government policies. In response to a letter by Adalah, which objected to the “regularization” of 10 settlements in March 2023, the cabinet secretary, Yossi Fuchs replied that “Israel has a right to impose its sovereignty over these areas as they comprise the cradle of the history of the Jewish people and are an inseparable part of the land of Israel.” Fuchs claimed that the legal basis for this assertion comes from the mandate approved by the League of Nations at the San Remo Conference in 1920, based on the Balfour Declaration. In a previous letter, he stated that “Judea and Samaria are the cradle of history for the Jewish people and were liberated in 1967 in a defensive war against the aggression of the Jordanian occupation, which illegally held these areas since 1948.” (more details and translated correspondence here).