Israel’s “occupation” of the West Bank and east Jerusalem, as well as its associated policies of settlement, annexation, and discrimination in those areas, are illegal and must end, the International Court of Justice said on Friday as it issued the first-of-its-kind advisory opinion on the matter.
“Israel’s continued presence in the occupied Palestinian territory is unlawful,” court President Nawaf Salam said, explaining that this was the opinion of the 11 judges on the 15-member judicial panel. Included in this decision, he noted, are “Israeli settlements in the West Bank, east Jerusalem, and the regime associated with them.”
Those same 11 judges, Salam said, hold that “Israel has an obligation to bring to an end its unlawful presence in... the territory” as “rapidly as possible.”
Prime Minister Benjamin Netanyahu harshly denounced the ruling, saying that “the Jewish people are not occupiers in our own land – not in our eternal capital Jerusalem, not in the land of our ancestors in Judea and Samaria. No false decision in The Hague will distort this historical truth, just as the legality of Israeli settlement in all the territories of our homeland cannot be contested.”
The Yesha Council’s chairman, Israel Gantz, who is also head of the Mateh Binyamin Regional Council, called on Netanyahu to “apply sovereignty to the territories of Judea and Samaria.”
Further, he urged the world to condemn ICJ, saying the decision was “contrary to justice, the Bible, morality, and international law.”
Salam read out the wide-ranging advisory opinion in the court’s chambers at The Hague, in the Netherlands. It examined Gaza, the West Bank, and east Jerusalem, but focused primarily on the latter two regions.
The legal opinion is non-binding but could be used as the basis for global action against Israel, either at the International Criminal Court (ICC), the United Nations, or even by the country’s allies.
The ICJ's findings
Some of the court’s conclusions could help strengthen the ICC as it examines the possibility of war crime suits against Israelis on the issue of settlement activity.
They also open the door to the possibility of apartheid charges against Israel in the future and strengthen the legitimacy of divestment calls against the Jewish state.
Moreover, the judicial standpoint could give an incentive to the country’s allies to change the contours of their existing or future bilateral agreements with Israel due to worries about running afoul of international law. Of particular concern are Israel’s trade relations with its allies.
The opinion included separate votes on critical questions as well as expanded answers that addressed key questions raised about Israeli activity.
“By 12 votes to three,” Salam said, the ICJ is of the opinion that “all states 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 Israel” in that region.
Those same judges, he continued, held that this same obligation was incumbent upon international organizations such as the UN.
Salam added that those 12 judges also advised the UN, especially its General Assembly and the Security Council, to consider the “precise modalities and further action required to bring an end as rapidly as possible” to Israel’s presence “in the occupied Palestinian territory.”
The judges voted 14 to one, and Salam explained, that Israel must “make reparation for the damage caused to all natural or legal persons concerned” in the “Palestinian territory.” Those 14 judges further advised that Israel had an “obligation to cease immediately all new settlement activities and to evacuate settlers” from the West Bank and east Jerusalem.
Within this framework, the ICJ clarified that its definition of “occupied Palestinian territory” included Gaza, the West Bank, and east Jerusalem.
The UN General Assembly requested in 2022 that the ICJ render such a legal opinion, predating the Gaza war that began in October 2023.
The court explained that “policies and practices contemplated by the request do not include conduct by Israel in the Gaza Strip in response to [the] attack on October 7, 2023,” and thus its opinion dealt largely with the West Bank and east Jerusalem in general.
It noted that Israel had withdrawn from Gaza in 2005, but took issue with Israel’s claim that in doing so, it could no longer be legally considered to be occupying the enclave. The ICJ explained that Israel still retained some elements of control over Gaza, particularly when it came to land, air, and sea access.
“Israel’s withdrawal from the Gaza Strip has not entirely released it of its obligation under the law of occupation. Israel’s obligations have remained commensurate with the degree of its effective control of” the area, the court stressed.
It dismissed any arguments that Israel had a right to retain control of the West Bank, east Jerusalem, or Gaza for security reasons, either through annexation or military rule.
Additionally, the court rejected claims that the 1993 Oslo Accords, which set the stage for a two-state resolution to the conflict, allowed for the retention of territory.
“These accords do not authorize Israel to annex part of the occupied Palestinian territory in order to meet its security needs. Nor do they authorize Israel to maintain a permanent presence” in that territory “for security needs,” the ICJ stated.
It concurred with accusations leveled against Israel that its practices and policies “amount to the annexation of large parts of the occupied Palestinian territory.”
It also agreed that Israeli policies supporting the civilian lives of its citizens in the West Bank and east Jerusalem were in contravention of Article 49 of the Fourth Geneva Convention, a conclusion that could be the basis for ICC war crime charges against Israel in the future.
“The court considers,” the ICJ said, “that the transfer by Israel of settlers in the West Bank and east Jerusalem, as well as Israel’s maintenance of their presence, is contrary to the sixth paragraph of Article 49 of the Fourth Geneva Convention.”
Conjointly, it also found Israel in breach of its compliance with Article 3 of the International Convention on the Elimination of Forms of Racial Discrimination, otherwise known as CERD, which prohibits racial segregation and apartheid.
But in expanding on why it held Israel in violation of CERD’s Article 3, the ICJ, in its advisory opinion, focused only on the issue of segregation.
Israel’s “legislation and measures impose and serve to maintain a near complete separation in the West Bank and east Jerusalem between the settler and Palestinian communities,” it opined.
Overall, the ICJ stated, “Israel’s settlement policy, its acts of annexation, and its related discriminatory legislation and measures are in breach of international law.”
These policies aggravate Israel’s violation of the Palestinian people’s right to self-determination, it emphasized.
In February, over 50 states presented their views before the court, with Palestinian representatives asking it to find that Israel must withdraw from the West Bank and east Jerusalem.
Israel has argued that the ICJ does not have the jurisdiction to hear this case and so did not participate in the oral hearings. Jerusalem did file a written statement informing the court that issuing an advisory opinion would be “harmful” to attempts to resolve the Israeli-Palestinian conflict.
A handful of states, including Canada and Britain, argued that the court should refuse to give an advisory opinion.
The United States, Israel’s strongest backer, urged it to limit any advisory opinion and not order the unconditional withdrawal of Israeli forces from the Palestinian territories.
The American position was that the court should not issue any decision that could hurt negotiations toward a two-state solution on a “land-for-peace” principle.
In 2004, the ICJ gave an advisory ruling that the West Bank security barrier running through portions of it was illegal and Israeli settlements were established in breach of international law. Israel dismissed that ruling.
The Jewish state captured the West Bank and east Jerusalem from Jordan during the 1967 Six Day War. It annexed east Jerusalem, formalizing that application of sovereignty in 1980, but left the West Bank under military rule.
The Oslo Accords in the 1990s divided the West Bank into three sections, placing Areas A and B under the full or partial auspices of the Palestinian Authority, while Area C remained under IDF civilian and military rule. All Israeli settlements are located in Area C.
Reuters contributed to this report.