Illegality of the Israeli Occupation of Palestine

By Aftab Alam, New Age Islam 24 October 2024 This month the ongoing war in Gaza entered its second year, which was ignited by an unprecedented terrorist attack by Hamas on Israel on October 7, 2023, killing some 1200 people and taking 251 hostages. The Hamas attack prompted Israel’s deadliest and most destructive airstrikes and ground offensive in history that continue to this day. The Israeli war on Gaza has already killed nearly 42,000 Palestinians, mostly women and children, and injured almost 100,000. It has displaced more than 90 percent of Gaza’s 2.3 million populations, and reduced the area to rubble, leaving them to survive in inhuman conditions with scarce food, water, medicines and supplies. Amid this gloomy and dark time, the advisory opinion rendered by the International Court of Justice (ICJ), the world’s highest court based in The Hague, on the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory (OPT), offers a small window of hope to Palestinians and others who still have faith in the rule based international order and attempt to use international law to restrain Israel. The ICJ declared Israel’s ongoing occupation of Palestinian territory—comprising the West Bank, East Jerusalem, and the Gaza Strip, as illegal under international law. Israel occupied almost all the territories of Palestine under the British Mandate during the 1967 war and still remains almost entirely under its control. Notwithstanding the Security Council’s unanimous resolution passed on November 22, 1967, calling Israel to withdraw its armed forces from territories it occupied during the war, Israel systematically planned and executed a policy designed to confiscate the lands it conquered while simultaneously expelling Palestinians, demolishing their homes and building and expanding Jewish settlements to finally covert the conquest into annexation. On September 25, 1971, the Security Council (SC), once again reiterated that “all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, including expropriation of lands and properties, transfer of populations and legislation aimed at the incorporation of the occupied section, are totally invalid and cannot change that status,” Israel, like in the past, turned a deaf ear to this call by the SC. A recent United Nations (UN) report has acknowledged the rapid and exponential rise in Israeli settlements and settlers in the occupied areas, including Jerusalem. The report states that during the period from November 1, 2022 to October 31, 2023, about 24,300 new Israeli housing units were built in the occupied West Bank, which is the highest on record since UN monitoring began in 2017. In East Jerusalem alone, approximately 9,670 units of Israeli settlement were reportedly built during this period. By 2023, there were approximately 465,000 Israeli settlers in the West Bank, spread across around 300 settlements and outposts, while some 230,000 settlers in East Jerusalem. It must be noted that Israeli policy of annexations, expulsions and the creation of settlements are specifically prohibited by international law. For example, article 47 of the Fourth Geneva Convention of 1949 clearly proscribes the annexation of occupied territory, and article 49 prohibits the forcible transfer or deportation of residents from an occupied area. In July 2001, Israel also constructed a wall along the Green Line and in the West Bank and East Jerusalem as a security barrier against violence from Palestinians, which the ICJ, in its advisory opinion rendered in 2004, found contrary to international law. The Israeli policy has resulted in continuous displacement of Palestinians, creating a source of tension and conflict. According to the UN High Commissioner for Human Rights, Volker Turk, the ever expanding Israeli settlements in the OPT risk eliminating any practical possibility of a Palestinian state. It must be noted that, in addition to a contentious jurisdiction, which the ICJ exercises to decide legal disputes between states, it has an advisory jurisdiction that allows it to provide non-binding opinions on legal questions at the written request of the UN organs, its specialized agencies or related organizations authorized to make such a request. Accordingly, the UN General Assembly (UNGA) on December 30, 2022, requested the ICJ, pursuant to Article 65 of its Statute, to render an advisory opinion on the legal consequences of Israel’s prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, as well as its denial of the rights of Palestinian people to self-determination, its discriminatory legislation, and its efforts to alter the demographic composition, character and status of the areas it occupies, including the Holy City of Jerusalem. In accordance with Article 66(1) and (2) of the ICJ Statute, 52 countries and three international organizations submitted written statements before the court in July and August 2023. Interestingly, almost all written submissions were on behalf of Palestine. The court heard oral arguments in February 2024. Israel boycotted the court’s proceedings. The ICJ in its 78-year long history has not witnessed such a huge response from states. The 83-page advisory opinion of the ICJ offers a detailed response to the questions presented to it by the UNGA. Vindicating the Palestinian cause, the ICJ in no uncertain terms declared that Israel’s continued occupation and annexation of the Palestinian territories are unlawful and ordered it to end its presence there, including all its settlements and settlers, “as rapidly as possible.” The court declared that, the sustained abuse by Israel of its position as an occupying power, through annexation and an assertion of permanent control over the OPT and continued frustration of the right of the Palestinian people to self-determination, violates fundamental principles of international law and renders Israel’s presence in the Occupied Palestinian Territory unlawful. In the opinion of the court, Israel is under an obligation to cease immediately all new settlement activities, and to evacuate all settlers from the OPT and make reparation for the damage caused to all concerned. The ICJ also obliged Israel to pay reparations to the population of the OPT and called on third states and international organizations, including the UN, to refrain from helping Israel maintain its presence there. The court asked the UNGA, which requested the opinion, and the SC, to consider the precise modalities and further action required to bring to an end as rapidly as possible the unlawful presence of Israel in the OPT. Consequent to this remarkable opinion by the world court, the UNGA adopted a momentous resolution on September 13, 2024, by a two-thirds majority in a recorded vote of 124 in favour to 14 against, and with 43 abstentions. The resolution demanded that Israel brings to an end its unlawful presence in the OPT, no later than 12 months from the adoption of the resolution. The UNGA resolution outlines the obligation of states and international organizations not to recognize as legal the situation arising from the unlawful presence of Israel in the OPT. Though the ICJ ruling is unlikely to change the course of the ongoing war in Gaza and end its occupation, it will have profound political implications and can be leveraged to mobilize meaningful international pressure against Israeli misdeeds in the OPT and for the cause of Palestinian statehood. The ruling has woken up the world to the crying need for justice for the Palestinians, who have endured decades of cruelty and systematic human rights violations and have long, been struggling to hold Israel accountable. The ruling offers much needed succour to Palestinians at a dire moment in history. ------ Aftab Alam teaches international law at Aligarh Muslim University and heads its Strategic and Security Studies Programme. 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