I. Jurisdiction and discretion

22. When seised of a request for an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion requested and, if so, whether there is any reason why the Court should, in the exercise of its discretion, decline to answer the request (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (hereinafter the “Wall Advisory Opinion”), I.C.J. Reports 2004 (I), p. 144, para. 13; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 111, para. 54).

II. General context

51. Having been part of the Ottoman Empire, at the end of the First World War, Palestine was placed under a class “A” Mandate that was entrusted to Great Britain by the League of Nations, pursuant to Article 22, paragraph 4, of the League Covenant. According to this provision,

The territorial boundaries of Mandatory Palestine were laid down by various instruments, in particular on the eastern border, by a British memorandum of 16 September 1922 and the Anglo-Transjordanian Treaty of 20 February 1928.

52. In 1947, the United Kingdom announced its intention to complete its evacuation of the mandated territory by 1 August 1948, subsequently advancing that date to 15 May 1948. In the meantime, on 29 November 1947, the General Assembly had adopted resolution 181 (II) on the future government of Palestine, which “[r]ecommend[ed] to the United Kingdom . . . and to all other Members of the United Nations the adoption and implementation . . . of the Plan of Partition” of the territory, as set forth in the resolution, between two independent States, one Arab, the other Jewish, as well as the creation of a special international régime for the City of Jerusalem. The resolution provided that “[i]ndependent Arab and Jewish States . . . shall come into existence in Palestine two months after the evacuation of the . . . mandatory Power”. While the Jewish population accepted the Plan of Partition, the Arab population of Palestine and the Arab States rejected this plan, contending, inter alia, that it was unbalanced.

53. On 14 May 1948, Israel proclaimed its independence with reference to the General Assembly resolution 181 (II); an armed conflict then broke out between Israel and a number of Arab States, and the Plan of Partition was not implemented.

54. By resolution 62 (1948) of 16 November 1948, the Security Council decided that “an armistice shall be established in all sectors of Palestine” and called upon the parties directly involved in the conflict to seek agreement to this end. In conformity with this decision, general armistice agreements were concluded in 1949 in.Rhodes between Israel and its neighbouring States through mediation by the United Nations, fixing the armistice demarcation lines between Israeli and Arab forces (often later collectively called the “Green Line” owing to the colour used for it on maps, and referred to hereinafter as such). The Demarcation Lines were subject to such rectification as might be agreed upon by the parties.

55. On 29 November 1948, referring to resolution 181 (II), Israel applied for admission to membership of the United Nations. On 11 May 1949, when it admitted Israel as a Member State of the United Nations, the General Assembly recalled resolution 181 (II) and took note of Israel's declarations “in respect of the implementation of the said resolution[]” (General Assembly resolution 273 (III)).

56. In 1964, the Palestine Liberation Organization (PLO) was created to represent the Palestinian people.

57. In 1967, an armed conflict (also known as the “Six-Day War”) broke out between Israel and neighbouring countries Egypt, Syria and Jordan. By the time hostilities had ceased, Israeli forces occupied all the territories of Palestine under British Mandate beyond the Green Line (see paragraph 54 above).

58. On 22 November 1967, the Security Council unanimously adopted resolution 242 (1967), which “emphasiz[ed] the inadmissibility of acquisition of territory by war” and called for the “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict” and the

It further affirmed “the necessity . . . [f]or achieving a just settlement of the refugee problem” and “[f]or guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones”.

59. From 1967 onwards, Israel started to establish or support settlements in the territories it occupied and took a number of measures aimed at changing the status of the City of Jerusalem. The Security Council, after recalling on a number of occasions “the principle that acquisition of territory by military conquest is inadmissible”, condemned those measures and, by resolution 298 (1971) of 25 September 1971, confirmed that

60. In October 1973, another armed conflict broke out between Egypt, Syria and Israel.

61. By resolution 338 of 22 October 1973, the Security Council called upon the parties to the conflict to terminate all military activity and to start immediately after the cease-fire the implementation of Security Council resolution 242 (1967) in all of its parts; it also decided that, “immediately and concurrently with the cease-fire, negotiations shall start between the parties concerned”.

62. On 14 October 1974, the General Assembly recognized, by resolution 3210 (XXIX), the PLO as the representative of the Palestinian people. By resolution 3236 (XXIX) of 22 November 1974, it recognized “that the Palestinian people is entitled to self-determination in accordance with the Charter of the United Nations”.

63. On 17 September 1978, Israel and Egypt signed the “Camp David Accords”, which led in the following year to a Peace Treaty between the two countries. Later, a peace treaty was signed on 26 October 1994 between Israel and Jordan. That treaty fixed the boundary between the two States according to the lines set under the Mandate for Palestine (see paragraph 51 above) but provided that, with regard to the “territory that came under Israeli Military government control in 1967”, the boundary with Jordan would be considered “administrative”.

64. On 15 November 1988, referring to resolution 181 (II) “which partitioned Palestine into an Arab and a Jewish State”, the PLO “proclaim[ed] the establishment of the State of Palestine”.

65. In 1993 and 1995, Israel and the PLO signed the Oslo I and Oslo II Accords. In an exchange of letters on 9 September 1993, the PLO recognized Israel's right to exist in peace and security, and Israel recognized the PLO as the legitimate representative of the Palestinian people. The Oslo I Accord established general guidelines for the negotiations to be conducted between Israel and Palestine. The Oslo II Accord, inter alia, divided the Israeli-occupied West Bank into three administrative areas (A, B and C) with Area C, which covers more than 60 per cent of the West Bank, being exclusively administered by Israel.

66. The Oslo Accords required Israel to, inter alia, transfer to Palestinian authorities certain powers and responsibilities exercised in Areas A and B of the West Bank by its military authorities and civil administration. Where such transfers, which have remained limited and partial, have taken place, Israel has retained significant control in relation to security matters.

67. Following an increase in acts of violence from the West Bank, in the early 2000s Israel began building a “continuous fence” (hereinafter the “wall”) largely in the West Bank and East Jerusalem. A report of the Secretary-General states that “[t]he Government of Israel has since 1996 considered plans to halt infiltration into Israel from the central and northern West Bank” (Report of the Secretary-General of 24 November 2003, UN doc. A/ES-10/248). A plan of this type was approved for the first time by the Israeli Government in July 2001. The Government subsequently took several decisions relating to the construction of the wall, and the first part of the relevant works was declared completed on 31 July 2003. Notwithstanding the Court's opinion in 2004, finding “[t]he construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime [to be] contrary to international law” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 201, para. 163), the construction of the wall continued, as well as the expansion of settlements in the Occupied Palestinian Territory.

68. Reports indicate that, by 2005, settlers who had been residing in 21 settlements in the Gaza Strip and in four settlements in the northern West Bank, were evacuated pursuant to an Israeli “Disengagement Plan” (see “Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem”, UN doc. A/HRC/22/63 (7 February 2023) and paragraph 88 below). By 2023, approximately 465,000 settlers resided in the West Bank, spread across around 300 settlements and outposts, while some 230,000 settlers resided in East Jerusalem (see “Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”, Report of the United Nations High Commissioner for Human Rights, UN doc. A/HRC/55/72 (1 February 2024), para. 9). The residents of settlements and “outposts” in the Occupied Palestinian Territory (“settlers”) are predominantly Israelis, as well as non-Israeli Jews who qualify for Israeli nationality under Israeli legislation.

69. On 19 November 2003, the Security Council adopted resolution 1515 (2003), by which it “[e]ndorse[d] the Quartet Performance-based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict”. The Quartet consists of representatives of the United States of America, the European Union, the Russian Federation and the United Nations. That resolution “[c]all[ed] on the parties to fulfil their obligations under the Roadmap in cooperation with the Quartet and to achieve the vision of two States living side by side in peace and security”.

70. On 29 November 2012, the General Assembly, recalling, inter alia, resolution 181 (II), accorded to Palestine non-member observer State status in the United Nations (resolution 67/19).

71. In 2016, the Security Council adopted resolution 2334 (2016) in which it urged

On 10 May 2024, the General Assembly adopted resolution ES-10/23 in.which it “[d]etermines that the State of Palestine is qualified for membership in the United Nations in accordance with Article 4 of the Charter of the United Nations and should therefore be admitted to membership in the United Nations”.

On 10 June 2024, the Security Council adopted resolution 2735 (2024), whereby it reiterated

III. Scope and meaning of the questions posed by the General Assembly

72. The Court now turns to the scope and meaning of the two questions posed by the General Assembly, and recalls that they are formulated as follows:

1. (a) “What are 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, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?

2. (b) How do the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?”

73. The Court notes that the questions define the material, territorial and temporal scope of the Court's enquiry.

74. With regard to the material scope, question (a) identifies three types of conduct which question (b) describes as “policies and practices of Israel”: first, “the ongoing violation by Israel of the right of the Palestinian people to self-determination”; second, Israel's “prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem”; third, Israel's “adoption of related discriminatory legislation and measures”. The specific scope of each of these policies and practices will be determined below, as the Court examines them in turn. At present, the Court limits itself to observing a feature common to all of them, namely that the terms of question (a) assume that these policies and practices are contrary to international law. For example, Israel's conduct is characterized as constituting a violation, and the legislation and measures adopted by it are characterized as discriminatory. By virtue of its judicial function, however, the Court must itself determine the lawfulness of the policies and practices identified by the General Assembly (see Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 424, paras. 52-53). In its Wall Advisory Opinion, the Court considered that determining the legal consequences of an action involved an assessment of whether that action “is or is not in breach of certain rules and principles of international law” (I.C.J. Reports 2004 (I), p. 154, para. 39). In the present case, too, as mentioned above, the Court considers that question (a) requires an assessment of the conformity with international law of those policies and practices of Israel identified in the request (see paragraph 49).

75. To fulfil this task, the Court must consider the main features of Israel's policies and practices, as identified in the request. In doing so, the Court has taken account of the information contained in the dossier communicated by the Secretary-General of the United Nations (see paragraph 6 above). The Court has further had regard to other information provided to it by the participants in the case.

76. As far as the methods of proof are concerned, the Court recalls that, in its contentious jurisdiction, it has taken evidence contained in United Nations documents into account “to the extent that they are of probative value and are corroborated, if necessary, by other credible sources” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 239, para. 205). The Court assesses the probative value of reports from official or independent bodies according to criteria that include

When considering the evidentiary value of such reports, the Court has given weight to the care taken in preparing a report, the comprehensiveness of its sources and the independence of those responsible for preparing it (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 137, para. 230). The Court will apply these criteria in its assessment of the probative value of the reports proffered in this case.

77. In these advisory proceedings, the Court considers that, in its request, the General Assembly has not sought from the Court a detailed factual determination of Israel's policies and practices. The object of the questions posed by the General Assembly to the Court is the legal characterization by the Court of Israel's policies and practices. Therefore, in order to give an advisory opinion in this case, it is not necessary for the Court to make findings of fact with regard to specific incidents allegedly in violation of international law. The Court need only establish the main features of Israel's policies and practices and, on that basis, assess the conformity of these policies and practices with international law. The Court has already concluded that it has before it the necessary information to perform this task (see paragraph 47 above).

78. In terms of its territorial scope, question (a) refers to “the Palestinian territory occupied since 1967”, which encompasses the West Bank, East Jerusalem and the Gaza Strip. The Court notes that the various United Nations organs and bodies frequently make specific reference to the different parts of the Occupied Palestinian Territory. The Court will also do so in the present Advisory Opinion, as appropriate. However, the Court recalls that, from a legal standpoint, the Occupied Palestinian Territory constitutes a single territorial unit, the unity, contiguity and integrity of which are to be preserved and respected (General Assembly resolution 77/247, para. 12; Article XI of the Oslo II Accord; General Assembly resolution ES-10/20 (2018), sixteenth preambular paragraph; Security Council resolution 1860 (2009), second preambular paragraph; Security Council resolution 2720 (2023), fourth preambular paragraph). Thus, all references in this Opinion to the Occupied Palestinian Territory are references to this single territorial unit.

79. The Court further observes that the question mentions measures pertaining to “the Holy City of Jerusalem”. The ordinary meaning of this term is ambiguous: it may refer to the entire city of Jerusalem, with the boundaries laid down in General Assembly resolution 181 (II) of 29 November 1947; it may refer to either of the two parts of the city following the 1949 General Armistice Agreement between Israel and Jordan (see paragraph 54 above); or it may refer to a larger geographical area. Although the ordinary meaning of the term may be subject to multiple interpretations, the context provides useful clarification in the present case. As the Court mentioned above, the scope of the question is already confined in geographical terms to the Occupied Palestinian Territory. Moreover, the title and text of the resolution make specific reference to East Jerusalem several times. In light of this context, the Court is of the view that the question posed by the General Assembly relating to the “Holy City of Jerusalem” is confined to measures taken by Israel in East Jerusalem.

80. In terms of its temporal scope, question (a) requests the Court to take account of measures adopted by Israel in the Occupied Palestinian Territory since 1967. However, the Court is not precluded from having regard to facts predating the occupation, to the extent that this is necessary for the proper discharge of its judicial function.

81. The Court notes that the request for an advisory opinion was adopted by the General Assembly on 30 December 2022 and asked the Court to address Israel's “ongoing” or “continuing” policies and practices (see resolution 77/247, twenty-eighth and twenty-ninth preambular paragraphs, and paragraph 18 (a)). Thus, the Court is of the view that the policies and practices contemplated by the request of the General Assembly do not include conduct by Israel in the Gaza Strip in response to the attack carried out against it by Hamas and other armed groups on 7 October 2023.

82. Question (b) has two parts. The first part requests the Court to assess how the policies and practices of Israel identified by the General Assembly “affect the legal status of the occupation”. The Court observes that the use of the verb “affect” points to the possibility that such policies and practices may bring about changes to the “legal status”. However, the scope of the first part of the question depends upon the meaning of the expression “legal status of the occupation” in the overall context of question (b). In its ordinary meaning, “legal status” means the character assigned by law to an entity, a person or a phenomenon. In the present context, the Court is of the view that the first part of question (b) calls on the Court to ascertain the manner in which Israel's policies and practices affect the legal status of the occupation, and thereby the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory. The issue of whether such policies and practices actually have an effect on the legal status of the occupation will be addressed by the Court in the introductory section of its reply to question (b) below, where the scope of the question will be further elaborated in light of the reply to question (a) of the General Assembly (see paragraphs 244-250 below).

83. The Court observes that both question (a) and the second part of question (b) call upon it to determine the legal consequences arising, respectively, from Israel's policies and practices and from its continued presence as an occupying Power in the Occupied Palestinian Territory. If and to the extent that the Court finds that any of Israel's policies and practices, or its continued presence, in the Occupied Palestinian Territory are contrary to international law, the Court will examine the legal consequences flowing from such findings for Israel, for other States and for the United Nations.

IV. Applicable law

84. Having defined the scope and meaning of the questions posed by the General Assembly, the Court must determine the applicable law. In its request to the Court, the General Assembly refers to:

85. The applicability of certain rules of international law in the territory concerned depends on the status of that territory under international law. The Court will first ascertain the status of the Occupied Palestinian Territory under international law. Then the Court will determine which rules of international law are relevant for answering the questions posed to it by the General Assembly.

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86. The questions posed by the General Assembly are premised on the assumption that the Occupied Palestinian Territory is occupied by Israel. In its Wall Advisory Opinion, the Court set out the circumstances under which a state of occupation is established:

87. In the same Advisory Opinion, the Court observed that, in the 1967 armed conflict, Israel occupied the territories situated between the Green Line and the former eastern boundary of Palestine under the British Mandate, namely the West Bank and East Jerusalem (I.C.J. Reports 2004 (I), p. 167, para. 78). The Court affirmed that subsequent events had not altered the status of the territories in question as occupied territories, nor Israel's status as occupying Power (ibid.).

88. In its Wall Advisory Opinion, the Court did not express a view as to the legal status of the Gaza Strip, as the construction of the wall did not affect the Gaza Strip. The Gaza Strip is an integral part of the territory that was occupied by Israel in 1967 (see paragraph 78 above). Following the 1967 armed conflict, Israel, as the occupying Power, placed the Gaza Strip under its effective control. However, in 2004, Israel announced a “Disengagement Plan”. According to that plan, Israel was to withdraw its military presence from the Gaza Strip and from several areas in the northern part of the West Bank (Israeli Ministry of Foreign Affairs, “The Cabinet Resolution Regarding the Disengagement Plan” (6 June 2004); see also “Prime Minister Ariel Sharon's Address to the Knesset — The Vote on the Disengagement Plan” (25 October 2004)). By 2005, Israel had completed the withdrawal of its army and the removal of the settlements in the Gaza Strip.

89. However, the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel (hereinafter the “Independent International Commission of Inquiry”) reports that Israel maintains control

This is supported by the earlier findings of the Independent Commission of Inquiry established pursuant to Human Rights Council resolution S-21/1, which stated that

90. In these circumstances, the Court must determine whether and how Israel's withdrawal of its physical military presence on the ground from the Gaza Strip in 2004-2005 affected its obligations under the law of occupation in that area. As the Court observed above (see paragraph 86), territory is occupied when it is actually placed under the authority of the hostile army. A State occupies territory that is not its own when, and to the extent that, it exercises effective control over it. A State therefore cannot be considered an occupying Power unless and until it has placed territory that is not its own under its effective control (see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 230, para. 173).

91. Where a State has placed territory under its effective control, it might be in a position to maintain that control and to continue exercising its authority despite the absence of a physical military presence on the ground. Physical military presence in the occupied territory is not indispensable for the exercise by a State of effective control, as long as the State in question has the capacity to enforce its authority, including by making its physical presence felt within a reasonable time (for example, see United States Military Tribunal, USA v. Wilhelm List and others (Hostage case) (19 February 1948), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. XI, p. 1243; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Mladen Naletilić and Vinko Martinović, IT-98-34-T, Trial Chamber, Judgement, 31 March 2003, para. 217).

92. The foregoing analysis indicates that, for the purpose of determining whether a territory remains occupied under international law, the decisive criterion is not whether the occupying Power retains its physical military presence in the territory at all times but rather whether its authority “has been established and can be exercised” (Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907; hereinafter the “Hague Regulations”). Where an occupying Power, having previously established its authority in the occupied territory, later withdraws its physical presence in part or in whole, it may still bear obligations under the law of occupation to the extent that it remains capable of exercising, and continues to exercise, elements of its authority in place of the local government.

93. Based on the information before it, the Court considers that Israel remained capable of exercising, and continued to exercise, certain key elements of authority over the Gaza Strip, including control of the land, sea and air borders, restrictions on movement of people and goods, collection of import and export taxes, and military control over the buffer zone, despite the withdrawal of its military presence in 2005. This is even more so since 7 October 2023.

94. In light of the above, the Court is of the view that Israel's withdrawal from the Gaza Strip has not entirely released it of its obligations under the law of occupation. Israel's obligations have remained commensurate with the degree of its effective control over the Gaza Strip.

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95. The Court now turns to the rules and principles that are relevant for answering the questions put to it. These include the prohibition of the acquisition of territory by threat or use of force and the right of peoples to self-determination, which are enshrined in the Charter of the United Nations and also form part of customary international law. The Court will elaborate on these rules and principles below, in the context of its discussion of the various aspects of the questions put to it.

96. Further, international humanitarian law is of particular relevance. Israel's powers and duties in the Occupied Palestinian Territory are governed by the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (hereinafter the “Fourth Geneva Convention”) and by customary international law. As the Court observed in its Wall Advisory Opinion, “the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties” (I.C.J. Reports 2004 (I), p. 177, para. 101). Egypt, Israel and Jordan were all parties to that Convention when the 1967 armed conflict broke out. Therefore, the Fourth Geneva Convention is applicable in the Occupied Palestinian Territory. A great many of the rules of that Convention are so fundamental to the respect of the human person, and elementary considerations of humanity, that they are “to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (see ibid., p. 199, para. 157; citing Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 257, para. 79). These rules incorporate obligations which are essentially of an erga omnes character (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 199, para. 157). Pursuant to Article 154 of the Fourth Geneva Convention, that Convention is supplementary to the rules contained in Sections II and III of the Hague Regulations. As the Court has observed, the Hague Regulations have become part of customary international law (ibid., p. 172, para. 89), and they are thus binding on Israel.

97. As regards international human rights law, the Court observes that Israel is party to several legal instruments containing human rights obligations, including the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (hereinafter “CERD”), the International Covenant on Economic, Social and Cultural Rights of 16 December 1966 (hereinafter the “ICESCR”) and the International Covenant on Civil and Political Rights of 19 December 1966 (hereinafter the “ICCPR”).

98. Many participants maintain that both international human rights law and international humanitarian law apply in a situation of armed conflict or occupation. They further argue that the scope of application of international human rights law does not depend on the territorial boundaries of a State alone and that international human rights law is applicable in respect of acts carried a State in the exercise of its jurisdiction outside its own territory. According to these participants, human rights obligations are complementary to those that derive from the law of occupation.

99. The Court recalls in this regard that “international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, particularly in occupied territories” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 243, para. 216, citing Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 178-181, paras. 107-113). The Court further recalls that the protection offered by human rights conventions does not cease in case of armed conflict or of occupation (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 178, para. 106). Some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may concern both these branches of international law (ibid.).

100. The Court observes that Israel remains bound by the ICCPR and the ICESCR in respect of its conduct with regard to the Occupied Palestinian Territory (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 180-181, paras. 111-112).

101. In relation to CERD, the Court notes that that Convention contains no provision expressly restricting its territorial application. On the contrary, several of its provisions impose obligations on States parties that are applicable “in territories under their jurisdiction” (Article 3 of CERD) or in relation to individuals “within their jurisdiction” (Article 6 of CERD; see also Article 14, paragraphs 1 and 2, of CERD). This indicates that CERD is also applicable to conduct of a State party which has effects beyond its territory. With reference to the Occupied Palestinian Territory in particular, the Committee on the Elimination of Racial Discrimination (hereinafter the “CERD Committee”) has taken the view that CERD is applicable to acts by Israel regarding persons in that territory (CERD Committee, “Concluding observations on the combined seventeenth to nineteenth reports of Israel”, UN doc. CERD/C/ISR/CO/17-19 (27 January 2020), paras. 9-10; CERD Committee, “Consideration of reports submitted by States parties under Article 9 of the Convention: Concluding observations of the Committee on the Elimination of Racial Discrimination: Israel”, UN doc. CERD/C/304/Add.45 (30 March 1998), para. 12). In the Court's view, Israel must comply with its obligations under CERD in circumstances in which it exercises its jurisdiction outside its territory.

102. Several participants in the present proceedings expressed diverging views as to the relevance of the Oslo Accords in general (see paragraph 65 above). The parties to the Oslo Accords agreed to “exercise their powers and responsibilities pursuant to” the Accords “with due regard to internationally-accepted norms and principles of human rights and the rule of law” (Oslo II Accord, Art. XIX). The Court recalls that the “legitimate rights” of the Palestinian people recognized in the Oslo Accords includes the right to self-determination (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 183, para. 118). The Oslo Accords further precluded the parties from “initiat[ing] or tak[ing] any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations” (Oslo II Accord, Art. XXXI (7)). The Court observes that, in interpreting the Oslo Accords, it is necessary to take into account Article 47 of the Fourth Geneva Convention, which provides that the protected population “shall not be deprived” of the benefits of the Convention “by any agreement concluded between the authorities of the occupied territories and the Occupying Power”. For all these reasons, the Court considers that the Oslo Accords cannot be understood to detract from Israel's obligations under the pertinent rules of international law applicable in the Occupied Palestinian Territory. With these points in mind, the Court will take the Oslo Accords into account as appropriate.

V. Israel's policies and practices in the Occupied Palestinian Territory

103. The Court will now assess the conformity of Israel's policies and practices in the Occupied Palestinian Territory, as identified in question (a), with its obligations under international law. In particular, the Court's analysis will examine, in turn, the questions of the prolonged occupation, Israel's policy of settlement, the annexation of the Palestinian territory occupied since 1967, and its adoption of related legislation and measures that are allegedly discriminatory. The Court will appraise whether and, if so, how Israel's policies and practices affect the right of the Palestinian people to self-determination after those other questions have been considered.

VI. Effects of Israel's policies and practices on the legal status of the occupation

VII. Legal consequences arising from Israel's policies and practices and from the illegality of Israel's continued presence in the Occupied Palestinian Territory

265. The Court has found that Israel's policies and practices referred to in question (a) are in breach of international law. The maintenance of these policies and practices is an unlawful act of a continuing character entailing Israel's international responsibility (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), pp. 138-139, para. 177).

266. The Court has also found in reply to the first part of question (b) that the continued presence of Israel in the Occupied Palestinian Territory is illegal. The Court will therefore address the legal consequences arising from Israel's policies and practices referred to in question (a) for Israel, together with those arising from the illegality of Israel's continued presence in the Occupied Palestinian Territory under question (b), for Israel, for other States and for the United Nations.

1. Additional observations on certain Israeli policies and practices

3. The Court devotes a large part of its Opinion to the analysis of Israel's policies and practices in the Occupied Palestinian Territory (paragraphs 103 to 243). It is a thorough analysis based on highly credible sources, the conclusions of which are difficult to contest. I fully agree with these conclusions. However, I would like to focus specifically on two of these policies which, in my view, demonstrate the systematic and deliberate nature of Israel's conduct in breach of international law in the Occupied Palestinian Territory, namely settlement and apartheid.

4. Regarding the first point, the Court recalls that Israel has implemented a policy of settlement and annexation throughout its occupation of Palestinian territory. The Advisory Opinion highlights the following components of this policy: the transfer of Israeli civilians into the Occupied Palestinian Territory, the forced displacement of the Palestinian population, the confiscation of land, the exploitation of natural resources and the extension of Israeli law to this territory. Each of these already constitutes in itself a serious violation of the relevant norms of international humanitarian law and international human rights law, with which Israel, as an occupying Power, is bound to comply.

5. What is important to note first is that Israel has been repeatedly reminded of the unlawful nature of these policies and of its obligation to bring them to an immediate end. The Advisory Opinion refers to numerous resolutions by various United Nations bodies and institutions, including the Security Council, the General Assembly, and the Human Rights Council, and to reports of the Office of the High Commissioner for Human Rights and the Secretary-General, all of which have repeatedly deplored both the policy of establishing settlements in the Occupied Palestinian Territory and the accompanying measures. These have contributed to depriving the Palestinians of the occupied territories of the enjoyment of fundamental rights inherent to human dignity, undermined the integrity of the Palestinian territory and, above all, prevented the Palestinian people from exercising its right to self-determination.

6. Unfortunately, Israel has repeatedly refused to heed these calls to respect international law and comply with its international obligations, thus ignoring the Court's 2004 Opinion, which states that “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 184, para. 120).

7. Similarly, Israel must have been aware of the conclusions of the “guardian” of the Geneva Conventions, the International Committee of the Red Cross (ICRC), whose president declared the following:

8. However, what is most important to note is that the Israeli authorities were warned from the very first months of the occupation that the establishment of settlements in the Occupied Palestinian Territory constituted a violation of international law. Indeed, the then legal adviser to Israel's Ministry of Foreign Affairs, Theodor Meron, had made it clear in a memorandum to the Israeli Prime Minister's office, as early as September 1967, that “the establishment of civilian settlements in the occupied West Bank and other conquered territories violates the Fourth Geneva Convention related to the protection of victims of war and, specifically, its prohibition on settlements (Article 49 (6))”.

9. Meron explained that:

10. Meron had also warned the Israeli authorities of the illegality of deportations and the demolition of Palestinian homes in the occupied territories (Memorandum from Theodor Meron, Legal Adviser to Israel's Ministry of Foreign Affairs, to the Director General of the Prime Minister's Office on “Geneva Convention: Blasting Homes and Deportation”, 12 March 1968, cited in T. Meron, “The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War”, American Journal of International Law, Vol. 111, 2017, No. 2, pp. 358-359).

11. It is therefore in full knowledge of the illegality of its actions that, instead of putting an end to its settlement of the occupied territories, Israel has been intensifying its efforts since 1967.

For example, it is to be noted that

12. The Opinion rightly points out in paragraph 115 that the establishment of these settlements is a clear violation of Article 49 (6) of the Fourth Geneva Convention, which prohibits the deportation of the population of the occupied territory and the transfer by the occupying Power of its population to the occupied territory. These are therefore serious violations that the States parties to the Geneva Conventions are obliged to punish; they are also under an obligation to track down those responsible for committing or ordering the commission of such offences. The ICRC has pointed out that this obligation is also a customary one, extending to all States, which must not only investigate such grave breaches allegedly committed by their nationals or their armed forces, or on their territory, they also have the right to confer on their national courts universal jurisdiction for the punishment of such grave breaches for which no statute of limitations may apply (ICRC Study on Customary International Law, rules 156 to 158, 160 and 161).

13. In this respect, it is also undoubtedly worth recalling that the “deportation of population” is an act constituting a crime against humanity under Article 7 of the Rome Statute of the International Criminal Court (hereinafter the “Rome Statute”). Similarly, the direct or indirect transfer by an occupying Power of part of its civilian population into the territory that it occupies constitutes a war crime under Article 8 of the Rome Statute. It should also be noted that, according to Article 8 bis (2) of the Rome Statute, “any annexation by the use of force of the territory of another State or part thereof” constitutes a crime of aggression “regardless of a declaration of war”. In accordance with their obligations under the Rome Statute, the States parties should draw all the legal conclusions from the Court's findings in this Advisory Opinion to prevent and punish the perpetrators of these acts.

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14. The second policy which I would like to address concerns Israel's discriminatory legislation and measures in the Occupied Palestinian Territory (paragraphs 180 to 229 of the Advisory Opinion). On this point, the Court concludes that “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”, and therefore “constitute a breach of Article 3 of CERD [Convention on the Elimination of All Forms of Racial Discrimination]” (paragraph 229 of the Opinion).

15. Article 3 of CERD reads as follows: “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction”. The Court's conclusion on this point is especially important given the reluctance of some internationalists to refer to the particularly heinous crime of apartheid outside the context of South Africa.

16. While it must be recognized that the definition of apartheid in Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid (hereinafter the “Apartheid Convention”) is marked by the experience in South Africa, which is expressly mentioned, this cannot mean that for any policy to be characterized as constituting apartheid it must fully reproduce the policies and measures implemented in South Africa at that time. Such an approach would effectively deprive the Apartheid Convention of any effect today, since it is doubtful that any State in today's world would openly claim to pursue a policy of racial segregation as practised in South Africa at the time the convention was adopted. In order to prevent and punish what constitutes a crime under international law, whose prohibition is an undisputed jus cogens norm, a non-restrictive reading of this definition is therefore necessary.

17. As noted above, Article 3 of CERD, to which Israel is a party, establishes an obligation to prevent, prohibit and eradicate any act of apartheid. Furthermore, although Israel is not a party to either the Apartheid Convention or the Rome Statute, there can be no doubt that the prohibition of apartheid is a customary norm, that is recognized as a peremptory norm from which no derogation is possible and whose violation constitutes a crime against humanity. It is to be noted that, following in the steps of the United Nations General Assembly (see resolution 2202 (XXI) of 16 December 1966), the Security Council described apartheid as “a crime against the conscience and dignity of mankind [which] is incompatible with the rights and dignity of man, the Charter of the United Nations and the Universal Declaration of Human Rights, and seriously disturbs international peace and security” (resolution 473 of 13 June 1980, para. 3).

18. In its Advisory Opinion on Namibia, the Court identified the effects of measures adopted by South Africa in Namibia as characteristic of a policy of apartheid. According to this jurisprudence, measures could constitute apartheid if they

19. Moreover, the Court unequivocally stated in that Opinion that a State may be guilty of apartheid outside its national territory and against persons who are not its nationals (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 57, para. 130).

20. It was clearly not appropriate for the Court to seek to determine the constitutive elements of apartheid in customary international law in this Advisory Opinion. However, by drawing on the elements highlighted by the Court in its 1971 Advisory Opinion and the provisions of Article II of the Apartheid Convention and Article 7 (2) (h) of the Rome Statute, it is possible to identify the elements that constitute the essence of this crime and therefore to assess whether Israel has implemented such a policy in the Occupied Palestinian Territory. Accordingly, apartheid would be established based on the following elements: the existence of two or more distinct racial groups; the commission of inhumane acts against one or more groups; an institutionalized régime of systematic oppression and domination by one racial group over one or more other racial groups and an intention to maintain this régime.

21. Regarding the first element, it should be noted that in the context of international human rights law, the term “race” or “racial group” must be understood in its broadest sense. Thus, by stating that the term “racial discrimination” refers to “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin”, Article 1 of CERD clearly indicates that “race” is not the only criterion of racial discrimination. Furthermore, in its General Recommendation VIII on the interpretation and application of Article 1, paragraphs 1 and 4, of CERD, the Committee on the Elimination of Racial Discrimination considers that the identification of individuals belonging to a particular racial or ethnic group or groups “shall, if no justification exists to the contrary, be based on the self-identification by the individual concerned” (CERD General Recommendation VIII Concerning the Interpretation and Application of Article 1, Paragraphs 1 and 4 of the Convention, Identification with a Particular Racial or Ethnic Group, Thirty-eighth Session of the Committee on the Elimination of Racial Discrimination, A/45/18, 28 September 1990, p. 89). As international criminal tribunals have pointed out, when considering the definition of “racial group” in the context of other crimes under international law, in the absence of a scientific definition or an objective method to determine whether a person belongs to a supposed “race”, it is necessary to refer to the perception of the groups concerned of their distinct identity. Thus, in the Rutaganda case, Trial Chamber I of the International Criminal Tribunal for Rwanda “notes that for the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction. In some instances, the victim may perceive himself/herself as belonging to the said group” (ICTR, The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-T, 6 December 1999, para. 56). In the same vein, the International Criminal Tribunal for the former Yugoslavia stated that “a national, ethnical, racial or religious group is identified ‘by using as a criterion the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics’” (ICTY, Trial Chamber I, Section A, The Prosecutor v. Vidoje Blagojević, Dragan Jokić, IT-02-60-T, 17 January 2005, para. 667).

22. Palestinians and Israeli Jews identify themselves as two distinct groups based on “subjective” elements relating to “descent, or national or ethnic origin”, including those relating to religion and culture, and should therefore be considered as two “racial groups” within the meaning of the first constitutive element of apartheid. In this respect, it should also be pointed out that Israel's 2018 Basic Law states that “[t]he Land of Israel is the historical homeland of the Jewish People” and that the State will “strive to secure the welfare of members of the Jewish people”, thus drawing a clear distinction between Jewish and non-Jewish people. (Basic Law: Israel, the Nation State of the Jewish People, 5778-2018, Article 1 (a), and Article 6 (a), see the full text at https://main.knesset.gov.il/EN/activity/documents/BasicLawsPDF/BasicLawNationState.pdf). Similarly, it should be noted that the Court recently stated that “[t]he Palestinians appear to constitute a distinct ‘national, ethnical, racial or religious group’” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 45).

23. With regard to the second element, the commission of inhumane acts, the Advisory Opinion sets out numerous violations that undoubtedly come under this heading, some of which are expressly listed in the Apartheid Convention and the Rome Statute. They include the transfer of members of the Israeli population into the occupied territory, together with the deportation of part of the Palestinian population (paragraph 118); the punitive demolition of Palestinian property (paragraphs 208-212); forced evictions, numerous house demolitions for lack of building permits, and restrictions on residence which leave members of the Palestinian population with no choice but to leave their place of residence (paragraph 147); the confiscation of land (paragraphs 118-123), thus depriving the Palestinians in the occupied territory of their means of subsistence; the exploitation of natural resources in the occupied territory, “including water, minerals and other natural resources, for the benefit of [Israel's] own population, to the disadvantage or even exclusion of the local Palestinian population” (paragraph 126); numerous acts of violence against the Palestinian population, both by settlers in the Occupied Palestinian Territory and by the Israeli security forces (paragraphs 148-154); unjustified and abusive restrictions on the freedom of movement of the Palestinian population in the occupied territory (paragraphs 200-206).

24. It is evident from the magnitude and consistency of these violations that they are not isolated acts but are part of an institutionalized régime of systematic oppression by Israelis, over Palestinians in the occupied territory. As the Opinion demonstrates, settlers and Palestinians live in the occupied territory under a régime established by Israel which grants different rights and benefits to each of the two groups. Numerous reports from United Nations bodies have already established and decried this situation. For example, the Independent International Fact-Finding Mission set up by the General Assembly concluded that

25. The systematic nature of the occupying Power's oppression of the Palestinians is also evidenced by the discriminatory measures relating to housing, and land and property rights. As noted by the United Nations High Commissioner for Human Rights,

26. In addition, there are restrictions on the freedom of movement which, according to the International Fact-Finding Mission, quoted by the Court, “come in many forms, including settler-only roads, a regime of checkpoints and crossings (closure obstacles), impediments created by the wall and its gate and permit regime, as well as administrative restrictions” (paragraph 200 of the Opinion).

27. The Advisory Opinion also notes that Israel put in place two different legal systems in the Occupied Palestinian Territory, which are applied separately to each of the two groups. Thus, while the Israeli military authorities apply “Israeli military authorities apply to settlers the law applicable to civilians in Israel, as well as to non-Israeli Jews present in the West Bank” and that “[a]s a result, settlers in the West Bank enjoy the rights and privileges of Israeli citizenship, as well as the protections of Israeli domestic laws and social benefits”, Palestinians in the West Bank are subject to Israel's military law and military courts (paragraph 136).

28. Finally, Israel's pursuit of its policy of settlement expansion and annexation, as well as repeated declarations by senior Israeli officials of their intention to remain in the Occupied Palestinian Territory, demonstrates that Israel fully intends to continue the established régime of domination of the Palestinians on which this policy is based. In December 2022, Israeli Prime Minister Netanyahu wrote on X (formerly Twitter) that

More recently, in September 2023, Mr Netanyahu showed the United Nations General Assembly a map representing the “new Middle East” which incorporates all the Occupied Palestinian Territory into the State of Israel (https://www.gov.il/en/pages/epmungaspeech, https://www.youtube.com/watch?v=V0M7eoAjBdE, at minute 9:18).

29. Israel's commission of inhumane acts against the Palestinians as part of an institutionalized régime of systematic oppression and domination, and its intention to maintain that régime, are undeniably the expression of a policy that is tantamount to apartheid.

30. This is also the conclusion reached by United Nations Special Rapporteurs on the Occupied Palestinian Territory since 2007 (see, for example, A/HRC/53/59 of 28 August 2023, A/HRC/49/87 of 21 March 2022, A/HRC/40/73 of 30 May 2019, A/HRC/25/67 of 13 January 2014, A/HRC/16/72 of 10 January 2011, A/HRC/4/17 of 29 January 2007), mainstream organizations such as Amnesty International (see Israel's Apartheid against Palestinians: Cruel System of Domination and Crime against Humanity, 2022) and Human Rights Watch (see A threshold crossed. Israel

Authorities and the Crimes of Apartheid and Persecution, 2021), and renowned Israeli human rights organizations (see in particular B'Tselem, “A Regime of Jewish Supremacy from the Jordan River to the Mediterranean Sea: This is Apartheid”, p. 3, (https://www.btselem.org/sites/default/files/publications/202101_this_is_apartheid_fr.pdf)) and Yesh Din (Volunteers for Human Rights, “The Israeli Occupation of the West Bank and the Crime of Apartheid, Legal Opinion”, June 2020, p. 57).

31. Numerous Israeli public figures who were privileged witnesses to events in the Occupied Palestinian Territory have also concluded that these acts are tantamount to a situation of apartheid. For example, Michael Ben-Yair, former Attorney General of Israel, said in 2022 that Israel had become “an apartheid regime . . . a one state reality, with two different peoples living with unequal rights”. Ami Ayalon, former director of the Shin Bet (the Israeli intelligence service), wrote in his memoirs: “We've already created an apartheid situation in Judea and Samaria, where we control the Palestinians by force, denying them self-determination”. Finally, it is significant that two former Israeli ambassadors to South Africa, Ilan Baruch and Alon Liel, declared in 2021 that the systematic discrimination of Israel, “on the basis of nationality and ethnicity”, constituted apartheid (Michael Ben-Yair, “Former AG of Israel: with great sadness I conclude that my country is now an apartheid regime”, thejournal.ie, 10 February 2022; Ami Ayalon, Friendly Fire (Steerforth Press, 2021), p. 260; Ilan Baruch and Alon Liel, “It's apartheid, say Israeli ambassadors to South Africa”, GroundUp, 8 June 2021).

32. Even more tellingly, many of those who lived under apartheid in South Africa state that, based on their experience, the discriminatory and segregationist policy implemented by Israel in the Occupied Palestinian Territory is similar to that of South Africa under apartheid. According to South African Archbishop Desmond Tutu, who won the Nobel Peace Prize in 1984 for his fight against apartheid,

2. Illegality of the Israeli occupation and its legal consequences

33. The Court recalls in its reasoning that

It explains that “[t]he former rules determine the legality of the continued presence of the occupying Power in the occupied territory; while the latter continue to apply to the occupying Power, regardless of the legality or illegality of its presence. It is [therefore] the former category of rules and principles regarding the use of force, together with the right of peoples to self-determination, that the Court considers to be applicable” in its response to the question regarding the legality of the occupation (paragraph 251 of the Advisory Opinion).

34. I share both the Court's reasoning and its conclusion that

35. The question posed by the General Assembly related to Israel's “continued presence” and not to the circumstances in which its occupation of Palestinian territory occurred. Therefore, it was not for the Court to pronounce on the latter aspect, that is on the legality ab initio of the occupation. It is worth recalling, however, that the General Assembly has several times had occasion to affirm the illegality ab initio of Israel's occupation. In 1977, it declared that it was “[d]eeply concerned that the Arab territories occupied since 1967 have continued, for more than ten years, to be under illegal Israeli occupation and that the Palestinian people, after three decades, are still deprived of the exercise of their inalienable national rights” and “reaffirm[ed] that the acquisition of territory by force is inadmissible and that all territories thus occupied must be returned”; it concluded by “[c]ondemn[ing] Israel's continued occupation of Arab territories, in violation of the Charter of the United Nations” (resolution 32/20, The Situation in the Middle East, 25 November 1977; (emphasis added). See also resolution 33/29, The Situation in the Middle East, 7 December 1978, and resolution 34/70, The Situation in the Middle East, 6 December 1979).

36. Recalling the General Assembly's finding on the illegality ab initio of Israel's 1967 occupation of Palestinian territory, and its condemnation of the continuation of this occupation in violation of the United Nations Charter, can only reinforce the Court's findings in this Opinion on the illegality of Israel's continued presence in the Occupied Palestinian Territory.

37. The Court considers, in paragraph 267 of the Opinion, that Israel's wrongful presence in the Occupied Palestinian Territory constitutes an act engaging the international responsibility of that State, and adds that it is a wrongful act of a continuing character “which has been brought about by Israel's violations, through its policies and practices, of the prohibition on the acquisition of territory by force and the right to self-determination of the Palestinian people”. While I fully subscribe to the Court's finding that Israel has an obligation to “bring an end to its presence in the Occupied Palestinian Territory as rapidly as possible”, in my view the reasoning of the Court requires a precision and an addition. It should be clarified that, while Israel's policies and practices in the Palestinian territory occupied since 1967 clearly constitute a violation of the Palestinian people's right to self-determination, the failure to respect this right dates back to 1948 and not 1967, as recalled by General Assembly resolution 32/20, adopted in 1977 and quoted above, in which the Assembly stated that it was “[d]eeply concerned . . . that the Palestinian people, after three decades, [were] still deprived of the exercise of their inalienable national rights” (emphasis added). In this respect, I feel that the Court's reasoning should be supplemented by a reference to Israel's obligations under resolution 181 (II).

38. As recalled in the Advisory Opinion (see paragraph 52), on 29 November 1947 the United Nations General Assembly adopted an important resolution, resolution 181 (II), which, in my view, remains the cornerstone for any lasting solution to the Israeli-Palestinian conflict based on the vision of two States. In this resolution, the General Assembly adopted a “Plan of Partition” providing for the creation of two independent states on the territory of Palestine, one Arab and the other Jewish, which “shall come into existence . . . two months after the evacuation of the armed forces of the mandatory Power has been completed but in any case not later than 1 October 1948”, and the creation of a special international régime (corpus separatum) for the city of Jerusalem to be administered by the United Nations.

39. It was on the basis of resolution 181 (II) that both Israel and Palestine proclaimed their existence (see paragraphs 53 and 64 of the Opinion) and sought admission to the United Nations, each in their own time, as a Member State and as an observer State (see paragraphs 55 and 70 of the Opinion). This resolution forms a whole, whose terms must be read together and inseparably. In other words, neither Israel nor Palestine can claim to derive rights from the resolution while rejecting or ignoring the rights of the other party enshrined in the same text. It follows that the proclamation of an independent Jewish State on 14 May 1948 based on resolution 181 (II) necessarily entails a commitment to the establishment of an independent Arab State. In this regard, it should be recalled that the State of Israel's proclamation of independence provides that the former is “ready to cooperate with the agencies and representatives of the United Nations in implementing the [said] resolution”. Israel has therefore indisputably committed itself not only to respecting resolution 181 (II), but also to implementing it.

40. It was, in any event, on this express condition that Israel was admitted to the United Nations. Thus, in resolution 273 (III) by which it admitted Israel as a Member of the United Nations, the General Assembly stated that it did so while “[r]ecalling its resolutions of 29 November 1947 [181 II] and 11 December 1948 [194 III] and taking note of the declarations and explanations made by the representative of the Government of Israel before the ad hoc Political Committee in respect of the implementation of the said resolutions”.

41. However, in this Opinion the Court has not determined all the legal consequences arising from this situation, in particular the obligations incumbent on Israel. Israel's admission to the United Nations gives rise to rights but also to legal obligations. Thus, having undertaken to implement resolution 181 (II), Israel is under a legal obligation not to hinder the exercise of the Palestinian people's right to self-determination, or to oppose the proclamation of a Palestinian State by the representatives of the Palestinian people, and indeed it cannot do so without undermining its own rights, the existence of the two States being inextricably linked in the same legal instrument.

42. Having committed to implementing resolution 181 (II), Israel also has an ongoing obligation to co-operate with the United Nations to ensure that the State of Palestine, proclaimed in Algiers in 1988 and admitted to the United Nations as an observer State on the basis of resolution 181 (II), can exercise its full sovereignty over its territory and achieve total independence, which requires the complete withdrawal of Israel from the Occupied Palestinian territory.

43. In this respect, it should be noted that in the exchange of letters of 9 September 1993 between Yasser Arafat, President of the Palestine Liberation Organization (hereinafter “PLO”) and Yitzhak Rabin, Prime Minister of Israel, the PLO President recognized “the right of the State of Israel to exist in peace and security” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 183, para. 118).

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44. Furthermore, as the Court points out, the obligations that Israel has violated include erga omnes obligations (paragraph 274 of the Opinion), which entail “special legal obligations” for other States in accordance with customary international law, as reflected in Article 41 of the Articles on the Responsibility of States for Internationally Wrongful Acts. Consequently, with respect to Israeli policies and practices that infringe the Palestinian people's right to self-determination, all States are bound by the customary obligations laid down in that Article. This requires not only taking no action that might hinder the exercise of that right, but also providing the necessary lawful support for the realization of that right and co-operating actively with the United Nations to that end. The Court has set out in general terms the content of these obligations for all States in paragraphs 275 to 279 of the Opinion.

45. These obligations are both negative and positive. The negative obligations require States to refrain from encouraging, aiding or assisting Israel in violation of the rules of international humanitarian law applicable in the Occupied Palestinian Territory. As the ICRC clarified in its 2016 commentary on the First Geneva Convention,

Thus, any unconditional financial, economic, military or technological assistance to Israel would constitute a breach of this obligation.

46. With respect to positive obligations, States must take proactive measures to bring violations to an end and ensure respect for the relevant conventions in the Occupied Palestinian Territory, including by using their influence over Israel (see ICRC Commentary, Geneva Conventions, Common Article 1, https://ihl-databases.icrc.org, para. 164).

47. As our esteemed late colleague, James Crawford, wrote, it is important to note that the obligation to ensure respect is not satisfied by mere diplomatic protests (James Crawford, “Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories”, https://www.militarycourtwatch.org/page.php?id=QA2pesuJIWa28530AcRDr3iFZmt, para. 86), or solely by co-operating with the United Nations. Indeed, as the Court has emphasized with regard to the crime of genocide, a State's referral of a violation of obligations erga omnes to the organs of the United Nations does not relieve other States of their obligations “to take such action as they can” to ensure respect for those obligations and prevent or punish violations thereof, “while respecting the United Nations Charter and any decisions that may have been taken by its competent organs” (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 220, para. 427).

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48. The nature of the obligations violated by Israel also has numerous implications for the United Nations and its various organs and institutions. The “duty” of the Organization and its institutions to “ensure respect for international law” in the Occupied Palestinian Territory, recalled in paragraph 277 of the Advisory Opinion, requires them to take concrete steps to put an end to the violations by Israel identified in the Opinion, and to enable the full realization by the Palestinian people of its right to self-determination.

49. Of course, as the Court has previously stated, it is not for the Court to “determine what steps the General Assembly may wish to take after receiving the Court's [O]pinion or what effect that [O]pinion may have in relation to those steps” (Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 421, para. 44) and it is for the General Assembly, as well as for the Security Council to “consider what further action is required to put an end to the illegal presence of Israel, taking into account the present Advisory Opinion” (paragraph 281 of the Opinion).

50. The fact remains, however, that the United Nations, its principal organs and its institutions must ensure that the measures they adopt are efficient and effective given that those addressed to Israel in almost all the resolutions of the General Assembly and the Security Council have remained without effect. These include, in particular, Security Council resolutions 237 (1967), 242 (1967), 252 (1968), 267 (1969), 298 (1971), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 484 (1980), 592 (1986), 605 (1987), 607 (1988), 672 (1990), 681 (1990), 904 (1994), 1073 (1996), 1322 (2000), 1397 (2002), 1515 (2003), 1544 (2004), 1850 (2008), 1860 (2009), 2334 (2016) and 2720 (2023), in violation of Article 25 of the Charter of the United Nations, which states that “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.

51. It is therefore essential that the Security Council and the General Assembly take further appropriate and concrete measures to bring to an end, without delay and within a well-defined timeframe, the violations of international law resulting from Israel's policies and practices in the Occupied Palestinian Territory.

52. In particular, the Security Council may wish to update the Quartet Roadmap endorsed by its resolution 1515 (2003) in order to “achieve the vision of two States living side by side in peace and security”, and reach “a final and comprehensive agreement” negotiated between the parties, based on the relevant Security Council resolutions, which provide for a resolution of “final status issues” (Security Council resolution 2334 (2016), adopted by the Security Council at its 7853rd meeting on 23 December 2016, S/RES/2334 (2016), para. 8).

53. To this end, the United Nations should strengthen international co-operation among its Member States and use all the means provided for in the Charter, in particular those in Chapter VI and, if necessary, Chapter VII.

54. In sum, as already stated in Security Council resolution 2334 (2016), quoted in paragraph 71 of the Opinion, the United Nations should work towards

3. Modalities of reparation

55. The final point I would like to address is that of the reparations owed to Palestinians and to Palestine as a result of Israel's policies and practices in the Occupied Palestinian Territory in breach of international law.

56. The main consequence of the violations must be the obligation to bring them to an end. This primarily and necessarily entails the obligation for Israel to put an end to its unlawful presence in the Occupied Palestinian Territory (see paragraph 267 of the Opinion). Only the imperative withdrawal of Israel from the Occupied Palestinian Territory will enable the Palestinian people to fully exercise its right to self-determination, including its right to a fully independent, sovereign and viable State. This is therefore the main objective that the United Nations and all States must pursue.

57. Accordingly, this withdrawal cannot be conditional on the success of negotiations whose outcome will depend on Israel's approval. In particular, Israel cannot invoke the need for a prior agreement on its security claims for such a condition may lead to perpetuating its unlawful occupation. Indeed, in accordance with the principle expressed by the maxim ex injuria jus non oritur — no one may benefit from their own illegal act. Otherwise, the cessation of violations of international law, including violations of peremptory norms (jus cogens), would be subject to the veto of the perpetrator of those violations.

58. Negotiations between the parties — which remain necessary — would then focus mainly on the modalities of implementation, rather than on the question of Israel's withdrawal, which must take place, according to the terms of the Opinion, “as rapidly as possible”. They would also focus on other matters necessary to achieve a just, comprehensive and lasting peace, such as the question of refugees, mutual security arrangements between the two States and changes that could be made by mutual agreement to the 1967 boundary lines.

59. Such negotiations would be more likely to succeed if they take place under the auspices of the United Nations and on the basis of international law, whose respective impartiality and legitimacy would go some way to offsetting the great power imbalance between the occupier and the occupied.

60. The other important point that ought to be mentioned is that of the reparations owed by Israel for its violations of international law to the victims in the Occupied Palestinian Territory and to the Palestinian people. This has to be “full reparation”, including restitution and compensation, which must, according to the well-known formula of the Permanent Court of International Justice in the Chorzów Factory case, “as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (see paragraph 269 of the Opinion).

61. Thus, as the Court previously stated in 2004, Israel is under an obligation to, inter alia, “return the land, orchards, olive groves and other immovable property [that has been] seized from any natural or legal person” in an abusive, discriminatory manner and in violation of international law in the Occupied Palestinian Territory. “In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 198, para. 153).

62. As regards compensation, it is not for the Court, in the context of the present Opinion, to establish the specific elements or quantum thereof. It has affirmed the principle and it is now up to all parties concerned to determine the modalities of such compensation, which must be made in accordance with the rules of international law. As the United Nations International Law Commission notes, the injury to be repaired “includes all damage, whether material or moral, resulting from the internationally wrongful act of the State”. Compensation covers “any financially assessable damage including loss of profits so far as this is established in the given case” (ILC, paragraph 2 of the commentary on Article 31 and paragraph 1 of the commentary on Article 36, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10)). There are many precedents that could guide such an approach.

63. In this regard, it should be recalled that in its 2005 Judgment in the case concerning Armed Activities on the Territory of the Congo, the Court found that Uganda was required to make reparation for the injury resulting from the “illegal use of force, violation of sovereignty and territorial integrity, military intervention, occupation of Ituri, violations of international human rights law and of international humanitarian law, looting, plunder, and exploitation of the DRC's natural resources” ((Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 257, para. 259). On this basis, it then fixed the amount of compensation to be paid to the Democratic Republic of the Congo in a further proceeding (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022 (I), pp. 137-138, para. 409). It should also be noted that, because of the illegal occupation of Kuwait and “for the purpose of reparation or financial compensation by Iraq”, the Security Council affirmed that Iraq was, under international law, “responsible for any loss, damage and injury suffered, in respect of Kuwait and third States and their nationals and companies, as a result of the invasion and illegal occupation of Kuwait by Iraq” (resolution 674 (1990) adopted by the Security Council on 29 October 1990 at its 2951st meeting, S/RES/674 (1990), item 8).

*

64. I would like to conclude by making a general remark on an argument concerning the impact of the Court's Opinion on the negotiations, which was put forward by some participants in these proceedings to invite the Court to decline to give the Advisory Opinion requested by the General Assembly. It was argued that the Court's Opinion would be likely to jeopardize the peace negotiations. In accordance with its jurisprudence, the Court has responded that this would not be the case.

65. Over and above this response, one must question the opposition that some appear to draw between peace and law. Quite apart from the fact that in the present case peace negotiations have been practically non-existent for more than ten years, in my view it is incorrect to suggest that, by stating the law, the Court would undermine any peace process. Quite the contrary, the very philosophy that led to the establishment of the various judicial mechanisms for the settlement of disputes — from the first arbitrations to the creation of the Permanent Court of Arbitration and the Permanent Court of International Justice to this Court — is that international law and justice unquestionably provide a means for the pacification of international relations. By stating the law, the Court provides the various actors with a reliable basis for a just, comprehensive and lasting peace.

66. I am convinced that a negotiation process that is shorn of legal and equity considerations would carry within itself the seeds of future conflict. Negotiations on all issues, including the legitimate security concerns of both States, Israeli and Palestinian, can only be successful if they have international law and justice as their cornerstone.

67. In stating the law in these proceedings, the Court, in keeping with its role, has contributed to laying the foundations for a just and enduring solution to a conflict that has lasted far too long, has caused immense human suffering in this part of the world and whose repercussions are felt far beyond. It is with this deep conviction that I participated in the present proceedings, as no doubt my colleagues did too.

(Signed)  Nawaf SALAM.

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I. Introduction

1. I agree that the Court has jurisdiction pursuant to Article 65, paragraph (1), of the Court's Statute, to entertain the request for an advisory opinion by the General Assembly, and have voted in favour of paragraph 285, subparagraph (1), of the operative clause. Regrettably, I find myself unable to concur with the majority in issuing the Advisory Opinion, for the reasons detailed in this dissenting opinion. In my view, the Court, in exercising its discretion judiciously and maintaining the integrity of its judicial role, should have refrained from rendering the Advisory Opinion requested. The framing of the questions in resolution 77/247 assumes certain legal and factual conclusions, thereby precluding a thorough and balanced examination of the Israeli-Palestinian conflict's distinctive historical background. Furthermore, most statements in the Court dossier present a unilateral perspective of the conflict, which reinforces the imbalanced approach in the Court's Advisory Opinion. For example, whilst the questions presume that there is an “ongoing violation by Israel of the right of the Palestinian people to self-determination”; and that “since 1967, Israel has unlawfully ‘occupied’ territory” that previously comprised British Mandatory territory, the Court has not received arguments or evidence on the territorial scope (i.e. borders) of the State of Israel as on the eve of independence; nor of Israel's competing territorial claims in relation to the disputed territory. These are issues that must first be addressed before the legal consequences of the alleged occupation of territory by Israel, or the territorial scope of Palestinian self-determination, can be determined.

2. Furthermore, the Advisory Opinion, while addressing key legal matters and factual determinations central to the conflict — including Israel's alleged occupation, annexation of the disputed territories, and the Palestinian right to self-determination — omits the historical backdrop that is crucial to understanding this multifaceted dispute. As a result, the Advisory Opinion is tantamount to a one-sided, “forensic audit” of Israel's compliance or non-compliance with international law, that does not reflect a comprehensive, balanced, impartial, and in-depth examination of the pertinent legal and factual questions involved. It also overlooks the intricate realities and history of the territories and populations within modern-day Palestine, specifically the areas referred to as the “Occupied Palestinian Territories” (OPTs). To be able to render an opinion that is both substantive and equitable, and that genuinely aids the General Assembly and Security Council in resolving the Israeli-Palestinian conflict peacefully and permanently in line with the UN Charter, it is essential to thoroughly examine these issues, informed by the relevant principles of international law, including those I highlight in this dissenting opinion. In this regard, the observation by Judge Rosalyn Higgins in her separate opinion in the Wall Advisory Opinion, is particularly poignant to the questions addressed in the present Advisory Opinion, as the Court has clearly adopted a similar approach in the present caseFootnote ¹.

3. I must express my regret that, due to the constrained timeframe that the Court has allotted to the preparation of individual opinions, my dissenting opinion cannot provide a comprehensive analysis of every aspect of the Advisory Opinion that I find objectionable. Therefore, I have opted to focus on the elements that I deem to be of utmost significance.

II. Historical context of the Israeli-Palestinian conflict

D. The partition of Mandatory Palestine and proposal for a “two-State solution”

12. The proposal for the creation of a two-State solution in the territory of British Mandatory Palestine (one for the Jewish population and the other for the Arab population) has been a recurrent item on the United Nation's agenda but has repeatedly been rejected by the Arab population living in the territory, as well as by Israel's Arab neighbours. Following the breakup of the Ottoman Empire after World War I, the League of Nations created several mandates over the territories formerly governed by the Ottoman Empire, including the one described immediately aboveFootnote ¹⁵. Seventeen years later, in 1936, the Arabs rebelled against Britain as mandate holder for Palestine and Mesopotamia (present-day Iraq). The Peel CommissionFootnote ¹⁶, a task force established by Britain to ascertain the cause of the Arab rebellion, found that the primary reason for the hostilities was the conflicting national aspirations of Jews and Arabs living in the territory: For, while the Jewish community sought to establish a national home in Palestine, as promised by the Balfour Declaration of 1917 and facilitated by the British Mandate, the Arab community, for their part, sought to establish their own national State and opposed the increasing immigration of Jews to Palestine and their acquisition of land, fearing displacement and loss of political and economic control. The Arabs feared that the growing Jewish population would eventually dominate the region, leading to the displacement and loss of Arab livelihoods. The Commission also found that economic disparities and competition for resources between Arabs and Jews, further fuelled tensions between the two communities. The Jewish community often had better financial support from abroad and more advanced agricultural techniques, which sometimes led to disparities in economic development and job opportunities. The Commission also noted that British policies and the terms of the Mandate, which aimed to facilitate the establishment of a Jewish national home while also safeguarding the rights of the Arab population, were inherently contradictory and difficult to implement effectively.

13. The Peel Commission concluded that these conflicting aspirations were irreconcilable under the existing mandate and proposed a “partition plan” as a potential solution, suggesting the creation of separate Jewish and Arab States with a continued British mandate over key areasFootnote ¹⁷. However, this proposal was ultimately rejected by the Arab population, leading to continued conflict. Since then, the United Nations, has espoused the idea of a two-State solution based on consensual negotiations and agreement between the Palestinian Jews and Arabs, as the only viable option for lasting peace and security in that part of the world. While Israeli leadership has been open to the concept, Palestinian Arabs and neighbouring Arab States have consistently rejected the idea of a Jewish State coexisting with an Arab State on at least seven occasions, as shown below.

Figure 1

14. First rejection in 1937: Pursuant to the recommendations of the Peel Commission in 1937, the British Government offered the Palestinian Arabs 80 per cent of Mandatory Palestine (Transjordan), and the Jews the remaining 20 per cent (Palestine) in a suggested split that was heavily in favour of the former. Despite the tiny size of their proposed State, the Jews voted to accept this offer, but the Arabs rejected it and resumed their violent rebellion against the British mandate. In 1946, however, the territory known as Transjordan gained independence from Britain on 25 May 1946. This event marked the end of the British mandate over that part of the territory and the establishment of the Hashemite Kingdom of Transjordan, with the Emir Abdullah becoming its first king. The country was later renamed the Kingdom of Jordan.

15. Second rejection in 1947: Ten years later, in 1947, after Transjordan (comprising 80 per cent of the original mandatory territory) had broken away and gained independence, the United Nations General Assembly through resolution 181 (1947) again called for the establishment of two States (one Jewish and one Arab), this time, in the remaining 20 per cent of the territory of the British Mandate, with Jerusalem remaining under international administration (“corpus separatum”)Footnote ¹⁸. The proposal which was initially accepted by the Jewish leadershipFootnote ¹⁹ as a compromise for establishing an independent Jewish State, was rejected by the Arab community who were essentially opposed to the creation of a Jewish State at all in the region. Unable to resolve the territorial issue, Britain withdrew its mandate from Palestine on 14 May 1948, leaving the thorny issue to be resolved by the United Nations and the conflicting parties within the region. Contemporaneously with the British withdrawal, the Jewish leadership in Palestine declared the creation of an independent State of Israel as a national homeland for Jews and a haven for Jews fleeing the HolocaustFootnote ²⁰. The declaration referenced the Balfour Declaration of 1917 and the United Nations General Assembly resolution 181, which recommended the partition of Mandatory Palestine into Jewish and Arab States. The Declaration mentioned the creation of the State of Israel, asserting the Jewish people's right to establish their own State in their ancestral homeland with immediate effect. The Declaration also outlined the principles upon which the new State would be founded, including the guarantee of civil rights for all inhabitants regardless of religion, race, or gender. Notably, the Declaration calls for peace and co-operation with neighbouring Arab States and extends an invitation to the Arab inhabitants of Israel to participate in the building of the State based on full and equal citizenship. The document concludes with an appeal to the Jewish people worldwide to support the new State and to the international community to recognize and assist in its development.

16. Third rejection in 1967: Twenty years later, in what is known as the “Six-Day War”, Israel launched a series of pre-emptive air strikes against Egypt on 5 June 1967 in.response to the escalating tension and military threats from its Arab neighbours (namely, Egypt, Syria and Jordan) who once again, sought to eliminate the Jewish State from the regionFootnote ²¹. Israel achieved a swift and decisive victory in this war, recapturing East Jerusalem and the West Bank from Jordan; the Golan Heights from Syria; Gaza and the Sinai Peninsula from Egypt. This recaptured territory has since been referred to as the “Occupied Palestinian Territories” or “OPTs” (although it should perhaps be better referred to as “Disputed Palestinian Territories”). From this point onwards, these Arab States had a direct territorial dispute with Israel quite apart from their commitment to the Palestinian cause. The Israeli Government was split over what to do with this new territory. Half of the Government wanted to return the West Bank to Jordan and Gaza to Egypt in exchange for peace. The other half wanted to give that territory to the region's Arabs, who had begun referring to themselves as the Palestinians, in the hope that they would ultimately build their own State there. Neither initiative got very far. A few months later, the Arab League met in Sudan and issued its “Three-Nos”: no peace with Israel, no recognition of Israel, no negotiations with Israel. Again, the two-State solution was flatly rejected by these Arab States.

17. Fourth rejection in 1969-70: Upon ending a ceasefire with Israel, Egypt with the military support of the Soviet Union, initiated renewed attacks against Israel between March 1969 and August 1970 in.what became known as the “War of Attrition”Footnote ²². Egypt's objectives during this war included the recapture of the Sinai Peninsula from Israeli forces which had seized control of the peninsula during the Six-Day War; the weakening of Israeli morale and economy through continuous military assaults thereby pressuring it to make territorial and political concessions; and the bolstering of Arab morale and unity against Israel's existence and military dominance in the region. This war ended with Israel's eventual acceptance of a complex ceasefire proposal in August 1970. However, the “cold peace” between the two countries was short-lived as three years later, Egypt, assisted by Israel's other Arab neighbours, launched a surprise attack on Israel.

18. Fifth rejection in 1973: From 6 to 25 October 1973, a coalition of Arab States led by Egypt and Syria launched a surprise military attack on the State of Israel, in what is known as the “Yom Kippur War”Footnote ²³. The surprise attack which began on Yom Kippur (the Jewish day of repentance) and which coincided with the Islamic month of Ramadan, was intended to challenge Israel's victory in the Six-Day War of 1967 whereby Israel had acquired territory four times its previous sizeFootnote ²⁴. The war which involved the USA and Soviet Union on opposite sides, had far-reaching implications and ultimately led to negotiations on terms more favourable to the Arab States. The Israelis recognized that, despite impressive operational and tactical achievements on the battlefield, there was no guarantee that they would always dominate the Arab States militarily, as they had done consistently throughout the First, Second and Third Arab-Israeli Wars; these changes paved the way for the Israeli-Palestinian peace process. At the 1978 Camp David Accords that followed the war, Israel returned the entire Sinai Peninsula to Egypt, which led to the subsequent 1979 Egyptian-Israeli peace treaty, marking the first instance that an Arab country recognized Israel as a legitimate State.

19. Sixth rejection in 2000: Israeli Prime Minister Ehud Barak met at Camp David, with Palestinian Liberation Organization (PLO) Chairman Yasser Arafat in 2000, to conclude a new two-State plan. Barak offered Arafat a Palestinian State in all of Gaza, and 94 per cent of the West Bank, with East Jerusalem as its capital. The Palestinian leader flatly rejected the offer. In the words of President Bill Clinton of the United States, “Arafat was here 14 days and said no to everything.” Instead, the Palestinians launched a bloody wave of suicide bombings that killed over 1,000 Israelis and maimed thousands more, on buses, in wedding halls, and in pizza parlours.

20. Seventh rejection: In 2008, Israel tried yet again to table the idea of a two-State solution before the new leadership of the PLO. Prime Minister Ehud Olmert went even further than Ehud Barak had, expanding the peace offer to include additional land to sweeten the deal. Like his predecessor, the new Palestinian leader, Mahmoud Abbas, turned the deal down.

21. To date, Israel still occupies the West Bank and the whole of Jerusalem, whilst Arab Palestinians now claim East Jerusalem as the capital of their potential or future Palestinian State. Most Palestinian refugees and their descendants live in Gaza and the West Bank, as well as in neighbouring Jordan, Syria, and Lebanon. Israel is reluctant to allow them to return to their homes claiming that this would overwhelm the country and threaten Israel's existence as a Jewish State. Meanwhile, in the past 50 years the number of Jews returning to Israel has increased and Israel has built settlements in the disputed territories where more than 700,000 Jews now live. These settlements have been declared “legally invalid” by the Security CouncilFootnote ²⁵, although Israel disagrees. In 2005 Israel withdrew its troops and settlers from the Gaza Strip, while retaining control over the airspace, shared border, and shoreline, because of “security concerns”. However, the UN still considers the Gaza Strip territory occupied by Israel precisely because Israel retains significant control over Gaza's borders, airspace, and maritime access, as well as the movement of goods and people into and out of the territory. Politically, Gaza has since 2006 been administered by HamasFootnote ²⁶, an Islamist extremist group committed to the destruction of the State of Israel and designated by several States as a terrorist organization. Since then, Hamas militants and their allies have fought several wars with Israel, which along with Egypt has maintained a partial blockade on the Gaza Strip to isolate Hamas and to try to stop their attacks and indiscriminate firing of rockets towards Israeli cities. The Hamas attack on Israel of 7 October 2023 in which several Israeli citizens were murdered and others taken hostage, ushered in the latest war between Israel and Hamas and its allies (including Hezbollah in Lebanon). The USA, European Union and other Western countries have all condemned the Hamas attack on Israel and some have given military support to Israel, whilst extending humanitarian assistance to the Palestinian civilians who continue to suffer huge casualties.

III. The negotiation framework for the resolution of the conflict and the supporting role of the United Nations

23. Throughout its history, the United Nations has been vested in trying to find a lasting solution to the Israeli-Palestinian conflict. As stated above, this started in 1947, only two years after the founding of the United Nations, and on the eve of Britain ending its Mandate over Palestine. The General Assembly through resolution 181 (II) (1947) approved a Plan for the Partition of British Mandatory Palestine into three entities that would result in the creation of a Jewish State and an Arab State, with the Holy City of Jerusalem and its immediate suburbs being administered by the UN as an international zone or “corpus separatum”Footnote ²⁷. As stated above, the said Plan of Partition fell throughFootnote ²⁸, culminating in the 1948 War of Independence between the Jewish and Arab populations and leading to the eventual abandonment of the Plan. The UN Security Council through resolution 62 (1948) called for “an armistice [to] be established in all sectors of Palestine”, and called upon the parties directly involved in the conflict to reach such an agreementFootnote ²⁹. Since then, however, relations between the Jews and Arabs in the former British Mandatory Territories have continued to deteriorate. Nevertheless, the United Nations, in particular the Security Council, has over the years remained seized of the “Palestinian Question”, desiring to resolve the conflict peacefully and in accordance with its mandate under the Charter of the United Nations.

24. Over the last 45 years, an international legal framework involving UN and bilateral negotiations for the resolution of the Israeli-Palestinian conflict has developed, which is based on the concept of “land for peace”, and which does not view the resolution of the conflict as being imposed upon the concerned parties from outside. Peace treaties between Egypt and Israel and Jordan and Israel were signed and implemented in 1979 and 1994 respectively. In 2020, in the context of the Abraham Accords, normalization agreements (equivalent to peace treaties) have been reached between Israel and a diverse list of Arab countries including the UAE, Bahrain, Morocco, and Sudan. The Israeli presence in the West Bank pending the conclusion of a peace agreement between Israel and the Palestinians is consistent with the international and bilateral frameworks for the resolution of the conflict.

IV. Jurisdiction and discretion of the Court

V. Shortcomings of the Advisory Opinion

49. The Court, taking a cue from the questions of the General Assembly, and various statements and observations filed before the Court, identifies Israel's policies and practices relating to the occupation which they deemed to be illegal, and which should consequently entail legal consequences for Israel, other States, and the United Nations. Besides voting against the advisory opinion, I would like to share some thoughts on the questions raised in the request and the Court's responses thereto, highlighting their limitations.

VI. The Advisory Opinion disregards important legal principles and propositions in international law

63. In my respectful view, the approach taken by the majority in rendering the Advisory Opinion is fundamentally flawed as it fails to consider important legal principles and propositions in international law, governing the Israeli-Palestinian question. The Court's analysis of the status of the territories recaptured by Israel in 1967 and any legal pronouncements on the status of those territories, should have been guided by the following principles of international law.

E. Uti possidetis juris and the borders of Israel on the eve of independence

70. Under international law there are several principles upon which legally enforceable borders are established, including effective control, historical title, and treaties. Uti possidetis juris Footnote ⁷⁴ is one of the main principles of customary international law intended to ensure stability, certainty and continuity in the demarcation of territorial boundaries of States emerging from decolonization or mandates such as the British Mandatory Palestine. In effect, the principle of uti possidetis juris transforms the colonial and administrative lines existing at the moment of birth of the new State into national borders. The principle applies to the State, as it is “at the moment of independence”, i.e. to the “photograph” of the territorial situation existing then. As the Court explained in the Burkina Faso/Republic of Mali case, the doctrine ensures that:

“By becoming independent, [the] new State acquires sovereignty with the territorial base and boundaries left to it by the [administrative boundaries of the] colonial power . . . [The principle of uti possidetis juris] applies to the State as it is [at that moment of independence], i.e., to the ‘photograph’ of the territorial situation then existing. The principle of uti possidetis [juris] freezes the territorial title; it stops the clock”Footnote ⁷⁵.

71. The Court further observed in the case of Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) that uti possidetis juris is a “retrospective principle, investing as international boundaries administrative limits intended originally for quite other purposes”Footnote ⁷⁶. In applying the doctrine, one does not ask whether the law at the time of the “photograph” viewed the administrative lines as international boundaries. Indeed, it is quite plain that the borderlines are not expected to have been international boundaries at the time of the “photograph”. Thus, for instance, in the Burkina Faso case, the Court did not have to inquire whether uti possidetis juris was a binding rule of international law at the time of decolonization. It was enough for the Court that uti possidetis juris was a binding rule of international law at the time the Court resolved the border dispute.

72. As stated above, when Britain terminated its stewardship over what was left of the Mandate for Palestine in 1947Footnote ⁷⁷, according to the principle of uti possidetis juris, the administrative boundaries of the Mandate for Palestine on 14 May 1948 became the borders of the independent State of Israel (the only State to emerge from Mandatory Palestine at the time of Britain's withdrawal)Footnote ⁷⁸. Those borders were as follows: (1) To the west the Mediterranean Sea was the border. (2) The eastern boundary of the Mandate was the Jordan River, and a line extending south from the Dead Sea (into which the Jordan River empties), to the Red Sea near Aqaba, separating Palestine it from Transjordan. (3) To the north, the boundary with the French Mandate for Syria and Lebanon, which was agreed upon in the Franco-British boundary agreements of 1920 and 1923. (4) To the south, the border with Egypt, running along the Negev Desert. These borders remained until the termination of the British Mandate on 15 May 1948, and the subsequent Declaration of Independence by the State of Israel (see map in Figure 2).

Figure 2

73. Israel's independence would thus appear to fall squarely within the bounds of circumstances that trigger the principle of uti possidetis juris. Applying the rule would appear to dictate that Israel's borders are those of the Palestine Mandate that preceded it, except where otherwise agreed upon by Israel and its relevant neighbours. Indeed, Israel's peace treaties with neighbouring States to date — with Egypt and Jordan — appear to reinforce it. These treaties ratify borders between Israel and its neighbours explicitly based on the boundaries of the British Mandate of Palestine. Likewise, in demarcating the so-called “Blue Line” between Israel and Lebanon in 2000, the United Nations Secretary General relied upon the boundaries of the British Mandate of PalestineFootnote ⁷⁹. Given the location of the borders of the Mandate of Palestine, applying the doctrine of uti possidetis juris to Israel would mean that Israel has territorial sovereignty over all the disputed areas of Jerusalem, the West Bank, and Gaza, except to the degree that Israel has voluntarily yielded sovereignty since its independence. This conclusion stands in opposition to the widely espoused position that international law gives Israel little or no sovereign claim to these areasFootnote ⁸⁰.

F. The UN Partition plan, 1948 War of Independence and Israel's Armistice lines

74. On the eve of the British withdrawal, on 14 May, Jewish authorities declared the independence of the Jewish State in Palestine, called IsraelFootnote ⁸¹. Local Arab authorities, on the other hand, while rejecting the Jewish State, did not declare or otherwise move to create an Arab State in Palestine. Israel's Declaration of Independence was immediately followed by the outbreak of the 1948 Arab-Israeli WarFootnote ⁸² as five Arab States (including Jordan, which had received independence from Britain in 1946, Egypt, Iraq, Lebanon and Syria) that were opposed to the establishment of a Jewish State in the region, invaded the newly independent State. The war ended by late 1948, with Israel controlling roughly three quarters of the territory of the Palestine Mandate. The remaining territory was conquered by Syria, Egypt, and Jordan. Egypt ruled the conquered parts of Palestine (the Gaza Strip) by military administration. Jordan occupied part of that territory which became known as the West Bank, while Egypt occupied Gaza. Jerusalem was divided between Israeli forces in the West and Jordanian forces in the East, while Transjordan and Syria treated the conquered areas as part of their municipal territories. No other Arab State claimed sovereignty within the area. SyriaFootnote ⁸³, EgyptFootnote ⁸⁴, and JordanFootnote ⁸⁵ all signed armistice agreements with Israel, marking the lines between the territory controlled by Israel and the lands conquered by the Arab States. However, the armistice agreements were clear in stating that the armistice lines were not boundaries and that the parties retained their claims to territorial sovereigntyFootnote ⁸⁶. Shortly thereafter, the Arab States that had conquered parts of Palestine imposed a military administration on the areas they had seizedFootnote ⁸⁷. In September, fearing a Transjordanian annexation of parts of Mandatory Palestine, Egypt initiated the creation of an Arab Government of “all Palestine”, which, on 1 October, declared an independent Arab State in all of Palestine. While six Arab States recognized the new “Government” of Palestine, it never exercised any authority anywhere, and it quietly retired to anonymous offices in Cairo and then dissolutionFootnote ⁸⁸.

75. A fourth armistice agreement was signed with Israel's last neighbouring State — LebanonFootnote ⁸⁹. Because Lebanon had not succeeded in conquering and holding any of the territory of the Palestine Mandate, the armistice line with Lebanon coincided with the prior boundary of the Mandate. Nonetheless, the armistice line had an interesting feature. Like the armistice lines with Israel's other neighbours, the armistice line with Lebanon was established as a military line, without prejudice to the parties' claims to territorial sovereigntyFootnote ⁹⁰.

Figure 3

76. The armistice lines, as established in 1949 and modified by minor adjustments in military lines between 1949 and 1967, are often referred to as the “1967 boundaries”Footnote ⁹¹. Indeed, the Advisory Opinion has recommended that Israel withdraws from the disputed territory based on the “1967 boundaries”. However, the implication that the 1949 armistice lines became Israel's legal international borders is difficult to square with the doctrine of uti possidetis juris. To give these lines the status of international borders would amount to approving the use of aggressive force by foreign States in 1967 against the Jewish people and the territorial integrity of the sovereign State of Israel, in violation of the prohibition under international law, of the use of force to acquire territory. As earlier stated, in the course of the first Arab-Israeli war, Egypt took control of the Gaza Strip, while Jordan and Iraqi forces occupied Judea, Samaria and East Jerusalem (redesignated as the West Bank). Jordan subsequently annexed Judea and Samaria illegally. This purported annexation was only officially recognized by three other StatesFootnote ⁹², but was rejected by the Arab League. Jordan's occupation and subsequent annexation of the “West Bank” was clearly in breach of international law, its control of the area having been obtained by force following an act of aggression and therefore having no effect on Israel's entitlement to sovereignty over the disputed territories upon independence. That is why the said Armistice lines are not synonymous with legitimate territorial borders.

77. Thus, while considerable efforts had been invested in creating and advancing proposals for altering the borders of the Jewish State of Israel and a contemplated companion Arab State (two-State solution), no such efforts have so far, succeeded in being implemented. Thus, it would appear that uti possidetis juris dictates recognition of the borders of Israel as coinciding with the borders of the Mandate as of 1948, rather than the “1967 borders” unless and until the parties to the conflict agree otherwise.

G. Israel's rights to settle in the territory comprising former Mandatory Palestine

78. The borders, territorial sovereignty of both Israel and Palestine is another sensitive area the Court cannot simply presume to appreciate based on the one-sided narrative contained in the statements of the pro-Palestinian group of States. The General Assembly's questions ask the Court to make a number of prejudicial assumptions or presumptions, including, (a) the illegality of Israel's occupation including settlements and annexation of Palestinian territories occupied since 1967; (b) “ongoing violation by Israel of the right of the Palestinian people to self-determination”; (c) the fact that Israel's policies and practices are necessarily “aimed at altering the demographic composition, character and status of . . . Jerusalem”; and (d) the “discriminatory character of Israel's legislation and policies” in the OPT. The questions ask the Court to presuppose that all the territories held during the Jordanian and Egyptian occupation within the 1949 Armistice Lines are automatically the sovereign territories of Palestine, and thus not of Israel. I am not sure that this issue is as simple as it appears. At the very least, the Court would need to examine and evaluate evidence concerning whether the 1949 Armistice Lines are “secure boundaries” within the meaning of Security Council resolutions 242 and 338. This, in turn, would require examination of the threats facing Israel emanating from the OPTs and the broader region. In the context of the questions put to the Court, determination of territorial sovereignty is critical because without clarifying the respective claims of both parties to the conflict, it would be impossible to answer the question of the territorial scope of the Palestinian self-determination claim or of Israel's withdrawal from territory considered occupied. Furthermore, the Court would need to determine the territory over which Palestinians claim sovereignty and whether Palestine has historically made different assertions before different fora. The Advisory Opinion does not address any of the above issues and frankly does not have before it sufficient information to even make an educated guess.

79. As referred to earlier in this dissenting opinion, the Mandate for Palestine which was created by the Principal Allied Powers in 1920 following World War I and approved by the League of Nations in 1922, was primarily set up to reconstitute “a Jewish homeland in Palestine”. Accordingly, the Jewish people obtained certain rights to settle in Palestine — which not only included the now disputed territories of the Gaza Strip, the “West Bank”, and West Jerusalem, but also Transjordan. Whilst the exact nature of the rights conferred under the Mandate has been the subject of much discussion, the language of the Mandate shows that with respect to the territory then known as “Palestine”, the Jewish people were the main beneficiaries of those rights. By incorporating the Balfour Declaration in the Preamble to the Mandate (in which “His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country”), the Mandate clearly confirmed the right of the Jewish people to settle, self-determine and live peacefully in the Mandate territory (or at least in the part that remained after Britain transferred 70 per cent of the Mandate Territory to Jordan). The Mandate of Palestine did not provide for any other partition, other than the separation of Transjordan. It has been argued that the Palestinian Arab population living within the Mandate also had and continue to have a right to self-determination. However, the founding documents of the Mandate (including General Assembly resolution 181 (1947)) are silent on the issue of the self-determination of Palestinian Arabs living within the Mandatory territory, implying that the question of their self-determination was perceived as one of “internal self-determination” that would require negotiation and mutual agreementFootnote ⁹³. Be that as it may, the rights of multiple nations to self-determination on a given territory should not disturb the application of the principle of uti possidetis juris Footnote ⁹⁴.

I. Concerns over Israel's withdrawal from the disputed territories and its security

83. Although the General Assembly's questions are aimed at prompting the Court to recommend an “immediate end to Israel's occupation” and an “immediate and unconditional withdrawal” from the OPTs, the issue of Israel's ending the occupation and its withdrawal from the OPTs is more nuanced. It requires an assessment of the legal rights and obligations of both parties under the Oslo Accords, as endorsed by the Security Council resolutions 242 and 338. As recalled above, those resolutions recognized that the end of Israel's occupation entailed the fulfilment of two interdependent conditions, namely, “Israel's withdrawal from territories it had seized in the conflict” on the one hand, and “Palestine's recognition of Israel's sovereignty, territorial integrity and right to live in peace within secure and recognized boundaries free from threats or acts of force”, on the otherFootnote ⁹⁵. In other words, both Israel and Palestine need to move in tandem to secure the necessary conditions — for Israel to withdraw from the Arab-occupied territories and for Palestine to provide the assurances and conditions that allow Israel to feel secure in so doing.

84. A balanced advisory opinion would inevitably need to examine both these conditions, especially given the latest attack by Hamas of Israel on 7 October 2023 and the ensuing Gaza war, a matter that is sub judice before the Court in contentious proceedingsFootnote ⁹⁶. Clearly, the Advisory Opinion in subparagraph 4 of the operative clause looks at the obligation of Israel to rapidly withdraw from the OPTs whilst completely ignoring the security concerns of Israel and her citizens, including the settlers.

VII. Conclusion

92. For all the above reasons, I am of the view that the Court should have declined to give its Advisory Opinion in the present case. Instead, Israel and Palestine, the two parties to the conflict, should be encouraged to return to the negotiating table and to jointly find a lasting solution. The United Nations and international community at large, should support these two parties to do so. In rendering its Advisory Opinion, the Court should have been careful to guard its judicial character and integrity by ensuring that the nuanced and more complex issues that require resolution through negotiation, are left to the negotiation framework already agreed upon by the parties to the Israeli-Palestine conflict.

(Signed)  Julia SEBUTINDE.

I. Introduction

1. We had to vote against certain points in the final conclusions (para. 285) of the present Advisory Opinion, particularly points 3 and 4. We are indeed not convinced that “Israel's continued presence in the Occupied Palestinian Territory is unlawful” (point 3), nor that, as a consequence of this statement, which, for the reasons set forth below, has no legal basis, “Israel is under an obligation to bring to an end its unlawful presence in the Occupied Palestinian Territory as rapidly as possible” (point 4).

2. We fully agree with the assertion, already formulated in the Wall Advisory Opinion delivered by the Court in 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 184, para. 122), according to which the Palestinian people has the right to self-determination.

3. We are also convinced that a large number of Israel's policies and practices in the territories it occupies since 1967 are in breach of its obligations under international law. In this respect, we can endorse most of the observations presented in section IV of the Opinion, on the basis of which the Court concludes that these “policies and practices” are unlawful. In particular, we share the view that the general and systemic practice of establishment and development of settlements in the West Bank is contrary to Article 49 of the Fourth Geneva Convention, as the Court already observed in 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 184, para. 120). More generally, we believe that numerous aspects of Israel's policy, especially over the past twenty years, can only be understood as aiming to gradually incorporate the majority of Area C of the West Bank into Israel's own territory (in addition to the formal annexation of East Jerusalem in 1980). The implementation of such an objective, as the Court observed in 2004 within the narrower context of construction of the wall, “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel's obligation to respect that right” (ibid., para. 122). What was true in the limited context of the Opinion delivered in 2004 is even more so in the broader context of Israel's “practices and policies” in the Occupied Palestinian Territory considered in the present Opinion.

4. Nevertheless, based on a rigorous legal analysis, we cannot draw the same conclusions as those set out in the Court's replies.

5. Indeed, for the first time, the Court does not only declare that Israel's practices in the territories it occupies are unlawful, in light of the obligations incumbent upon it as an occupying Power, but it also asserts that Israel's very presence in the territories is unlawful and that it must therefore withdraw from them without any prior guarantee, particularly regarding its security, even though the respect of Israel's right to security is one of the essential elements to consider in order to achieve a lasting peace.

We are of the view that, by doing so, the Court has embarked on a legally wrong path and reached conclusions that are not legally correct.

We will explain the reasons for our disagreement in more detail in the remainder of this opinion.

6. In short, the Opinion provides no convincing reason that would justify moving from the finding that Israel's “practices and policies” in the Occupied Palestinian Territory are, in many instances, unlawful, to the conclusion that the very presence of Israel in the territories is unlawful. In our view, on this point, there is a missing link in the Opinion's reasoning for reasons we will expand upon below. The Court chose to portray the Israeli-Palestinian conflict in a biased and one-sided manner, which disregards its legal and historical complexity. It gives little weight to the successive resolutions by which, from 1967 to present, the Security Council established and endorsed the legal framework for resolving the conflict based on the coexistence of two States and on the right of each of the two peoples to live in peace and security. When it does not ignore these resolutions, it makes a selective reading of them.

7. Moreover, we believe that the Opinion's legally incorrect conclusions stem, to a large extent, from a misappreciation of the Oslo Accords signed between the representatives of Israel and Palestine. These Accords, along with the relevant resolutions of the Security Council, define the fundamental framework of a peaceful resolution of the conflict aiming at implementing the “two-State solution”, as explained below.

8. The final conclusions of the Opinion are clearly inspired by those of the two Advisory Opinions that the Court has rendered in the past on situations where one State was present on a territory on which its presence, or its sovereignty, was contested: the 1971 Opinion relating to South Africa's presence in Namibia (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16), and the 2019 Opinion relating to the Chagos Archipelago (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 95).

In both cases, the Court concluded that the presence of the State in question in the considered territory was illegal and had to cease “immediately” (Namibia) or “as rapidly as possible” (Chagos).

9. In our view, the two situations previously examined by the Court are entirely different from the one at issue in the present case. In this case, we are dealing neither with a presence maintained by a mandatory Power in violation of a Security Council decision declaring this presence illegal after the General Assembly terminated the mandate, nor with a situation in which a colonial Power failed in its obligation to complete the decolonization process, nor with any other situation comparable to the above.

10. The Israeli-Palestinian conflict is of a different nature. It must be approached in a balanced, nuanced and comprehensive manner that is entirely absent from the Opinion rendered. For many decades, the Israeli and the Palestinian peoples have been in conflict — a conflict with many complex legal, political and historical aspects — related to the territory of Palestine, entrusted by mandate of the League of Nations to the United Kingdom in 1922. The rights of one cannot be exercised to the detriment of the rights of the other. The “two-State solution”, required by successive Security Council resolutions, which we will analyse below, is the only one that can respond to the legitimate need for security of both Israel and Palestine. This solution can only arise from a comprehensive understanding reached through negotiations, which must take into account all rights and interests involved: the right of the Palestinian people to self-determination is not incompatible with that of Israel to exist in security, while Palestine's right to security must also be taken into account. The right to self-determination and the right to security must be implemented simultaneously in order to achieve the coexistence of the two States, which will also mark the end of Israel's presence as an occupying Power in the Palestinian territory.

11. As Judge Higgins recalled in her separate opinion attached to the Wall Opinion, in the successive resolutions of the Security Council “the key underlying requirements have remained the same — that Israel is entitled to exist, to be recognized, and to security, and that the Palestinian people are entitled to their territory, to exercise self-determination, and to have their own State” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), separate opinion of Judge Higgins, p. 211, para. 18).

We believe that this statement remains valid today. While it is true that Israel's current policy — which has not always been the same — does not tend towards such a result, this is not a reason to ignore the legitimate concerns of this State regarding its security, and to completely depart from the framework outlined by the Security Council, as the present Opinion does.

II. The temporal and territorial scope of the questions posed to the Court

12. The questions put to the Court by the General Assembly refer to Israel's policies and practices in the “Occupied Palestinian Territory since 1967”. There is no doubt that, in the General Assembly's intention, what it designates as the Occupied Palestinian Territory encompasses the West Bank, East Jerusalem and the Gaza Strip. Besides, the questions are drafted in the present tense.

13. However, we believe that the Court should have limited its Opinion to the West Bank, including East Jerusalem, and should not have included the Gaza Strip in its analysis and its findings for the following reasons.

14. The situation in the Gaza Strip has undergone a fundamental change following the murderous attacks committed by Hamas from Gaza on Israeli territory on 7 October 2023 and Israel's large-scale military operation that followed.

The request for the Advisory Opinion was submitted prior to these events, which the General Assembly could not have foreseen. One can infer from this that the situation in Gaza after 7 October 2023 is not included in the scope of the questions put to the Court. It is therefore appropriately that the Opinion refrains from taking any position on the events that have occurred in Gaza after 7 October 2023. Moreover, had the Court taken a stance on this situation in the present Opinion, it would have risked prejudging some questions raised in two contentious cases currently pending before the Court. We are of the view that, as a general rule, an advisory opinion should not interfere with the resolution of pending contentious cases.

15. With regard to the prior period, it should be noted that since 2005 the Gaza Strip has been in a fundamentally different situation than that of the West Bank. In 2005, Israel withdrew from the territory of the Gaza Strip and dismantled the settlements which it had established, while maintaining the control over the airspace and maritime zones, and land borders. Shortly after the Israeli army's withdrawal, the Hamas movement gained control of the administration of Gaza's territory.

16. The Court did not have evidence before it which would allow it to assert whether and to which extent the control Israel continued exercising over the Gaza Strip after the 2005 withdrawal was justified by security motives, considering, in particular, the military actions conducted by Hamas directed at Israeli territory, even before 7 October 2023. Moreover, nearly all of Israel's “policies and practices” mentioned in the Opinion refer to the situation in the West Bank.

17. Due to insufficient information presented to it, the Court should have concluded that it was unable to properly pronounce itself on the situation in Gaza prior to 7 October 2023. In these circumstances, we can only regret that, in its conclusions, according to which “Israel's continued presence in the Occupied Palestinian Territory”, which includes Gaza, “is illegal” (para. 267) and that “Israel is under an obligation to bring to an end its unlawful presence in the Occupied Palestinian Territory as rapidly as possible” (para. 285), the Opinion makes no distinction whatsoever between the West Bank, including East Jerusalem, and Gaza, referring to the “Occupied Palestinian Territory” as a whole.

III. The issue of the legality of the occupation

18. One of the most questionable aspects of the Opinion lies in the lightness with which it addresses the question of the legality of the occupation itself, a question to which it answers in the negative without relying on any convincing legal basis.

19. According to the Opinion, Israel's policy of establishing and developing settlements in the West Bank aims at gradually incorporating this territory into that of the State of Israel and demonstrates an aim to annex, driven by an “intention to create a permanent and irreversible Israeli presence in the Occupied Palestinian Territory” (para. 252). The Court asserts that Israel's policies and practices constitute violations by Israel of the prohibition of the acquisition of territory by force and of the Palestinian people's right to self-determination. Up to this point, we can follow the reasoning and we do not have substantial objections.

20. But then the reasoning abruptly takes an entirely different turn. The Opinion concludes from the foregoing that “Israel's continued presence in the Occupied Palestinian Territory is illegal” (para. 267), this illegality applying, moreover, to the entire territory occupied by Israel in 1967, including Gaza, and without making any distinction between the various parts of the West Bank. In other words, according to the Opinion, it is not only Israel's conduct in the Occupied Palestinian Territory that is illegal, but its very presence, and thus the occupation itself.

21. We cannot subscribe to such a conclusion, which is not based on any serious or sound legal reasoning.

22. We do not question whatsoever the assertion that “[t]he annexation of occupied territory by an occupying Power is unlawful” (para. 175) and that “occupation can under no circumstances serve as the source of title to territory” (para. 253). We are of the view, and so is the majority of the Court, that Israel's policy for quite a long time already turns its back on the principle according to which an occupying Power cannot pursue a policy aimed at extending its sovereignty over the whole or part of the territory it occupies by incorporating it, de jure or de facto, into its own territory.

But we do not see how we can go from the finding that the annexation policy pursued by the occupying Power is illegal to the assertion that the occupation itself is illegal. Yet that is exactly what the Opinion does, without any explanation of even minimal legal substantiation.

23. The rules governing the conduct of an occupation and the obligations of the occupying Power, on the one hand, and those concerning the use of force and its consequences, on the other hand, constitute two distinct sets of rules. The question of whether and to what extent the occupying Power's conduct complies with its obligations in the occupied territory, irrespective of the legality of the occupation, must be examined under the first set of rules. The question of the legality of the occupation itself must be examined under the above-mentioned second set of rules. The Opinion recalls this distinction (para. 251) without, however, drawing the correct conclusions.

24. By pursuing a policy of gradual annexation of part of the Occupied Palestinian Territory, namely Area C of the West Bank, Israel fails to comply with the obligations imposed on it as an occupying Power. The same stands true when it violates various specific obligations laid down by international humanitarian law, such as the obligation not to transfer its own population into the occupied territory or not to take discriminatory measures against the population of the territory.

25. However, it cannot be concluded from the above that the occupation itself is illegal, which is a question of a fundamentally different nature. The Opinion does not justify in any way, except through general and vague formulations, the abrupt transition from the finding that, by its conduct in the occupied territories, the occupying Power fails to comply with its obligations to the assertion of the illegality of the occupation itself. The illegality of the conduct of the occupying Power, even when it consists in seeking to annex the occupied territory, cannot deprive the occupant's presence of its character: this presence is and remains an occupation under international law. As for the question of whether this presence is illegal, as we mentioned earlier and as the Opinion itself seems to acknowledge, it falls under the application of a different set of rules.

26. The emphasis in the Opinion on the right to self-determination of the Palestinian people and its “inalienable” character cannot conceal the erroneous nature of the reasoning followed. It is evident that “occupation cannot be used in such a manner as to leave indefinitely the occupied population in a state of suspension and uncertainty, denying them their right to self-determination” (para. 257). But this does not support the conclusion the Opinion reaches regarding the illegality of the occupation. It is not the occupation itself which violates the right to self-determination; it is the annexation and the practices related to it. By its very nature, any military occupation hinders the full exercise by the population of the occupied territory of its right to self-determination. This alone cannot render the occupation unlawful. To rule on the legality of a prolonged occupation, security considerations, which are essential for this purpose but almost entirely ignored in the Opinion, must be integrated into the analysis. We will return to this point later.

27. Accordingly, we are of the view that “Israel's policies and practices” in the Occupied Palestinian Territory do not affect the “legal status of the occupation”, if this encompasses, as the Opinion states (para. 82), the legality of Israel's presence in this territory as an occupying Power. To the question (b) posed by the General Assembly, the Court should have therefore responded in line with the above. Such a response, which we believe to be the only legally correct one, would have spared the Court from taking a stance on the legality of the occupation itself, an issue on which it was not directly asked to pronounce itself. In our opinion, it would have been sufficient to note that this issue is not affected by the “policies and practices” in question.

28. We will add the following remarks to the preceding analysis.

29. First, the Opinion declares Israel's continued presence illegal in the whole of the Occupied Palestinian Territory, including the Gaza Strip. Considering that this illegality is inferred — wrongly in our view — from the settlement and the annexation policies, there is an incomprehensible discrepancy between the cause and the consequences. Indeed, the policy aiming at annexation clearly concerns the settlements in Area C of the West Bank, and not the Gaza Strip. The latter was evacuated by the occupying army in 2005, and the settlements that had been established there were dismantled. The Opinion does not refer to any element that would demonstrate the existence of an intent or policy aiming to annex the Gaza Strip. Consequently, we believe that, besides the fact that the reasoning of the Opinion is flawed in its very principle, it is tainted by an internal inconsistency. The only justification provided by the Opinion in support of the conclusion that the occupation has become unlawful in the whole of the Occupied Palestinian Territory, including Gaza, is that this territory constitutes a territorial unit “the integrity of which must be respected” (para. 262). Such a justification is by no means convincing. There is no legal connection whatsoever between the assertion (which is correct per se) that the Palestinian people should be able to exercise its right to self-determination on the whole of the Occupied Palestinian Territory and the extension of the “illegality” of the occupation (which as such, as shown in this joint opinion, has no legal basis) to all various parts of this territory. In reality, this discrepancy only underscores the fundamental flaw that taints the entire reasoning.

30. Second, the consequences that the Opinion draws from the position it adopts, in terms of international responsibility, are not those it would have drawn if it had adopted a legally correct analysis of the wrongful act.

When an occupying Power annexes, de facto/implicitly or de jure/explicitly, the occupied territory, it results in an unlawful situation that must cease, given its continuous character, under the law of international responsibility. This means that the occupying Power must cease the annexation and nullify all its effects. It remains bound to fully comply with its obligations under the legal régime of occupation, which, legally, has not ceased to apply.

Instead, the Opinion, as it erroneously defines the wrongful act not as the annexation but as the occupation itself, concludes that it is Israel's very presence in the Occupied Palestinian Territory that must cease “as rapidly as possible” (para. 267). Based on erroneous premises, the Opinion can only reach a false conclusion, which we cannot endorse.

The fact that the Opinion, probably in order to avoid too blunt a legal criticism as to the conclusion that the occupation itself became illegal, uses a terminology referring to the illegality of the “continued presence” of Israel in the Occupied Palestinian Territory “as an occupying Power” cannot disperse the erroneous character of that conclusion. The “occupation” and the “continued presence” of a State “as an occupying Power” in a territory which is not under its sovereignty are perfectly identical notions.

31. Third, given the central role that the concept of annexation plays in the Opinion's reasoning, it is surprising and regrettable that the Court did not meaningfully clarify the terminology by distinguishing between the different terms employed. The Opinion sometimes asserts that Israel proceeded to the annexation of large parts of the West Bank and East Jerusalem (para. 173); it sometimes describes this annexation as “gradual” (para. 252); it sometimes uses the distinction between de jure annexation and de facto annexation. In our view, this latter distinction is a source of confusion. Both types of annexation involve effective control of the territory, but they differ in the way in which the State expresses its intention to hold the territory permanently. De jure annexation entails a formal declaration of the State by which it claims permanent sovereignty over a territory it occupies. De facto annexation, by contrast, is not accompanied by an explicit declaration of sovereignty over the annexed territory, the intention to exercise permanent sovereignty being rather inferred from the situation on the ground. This means that, essentially, a de facto annexation is an implicit or informal annexation as opposed to the explicit and formal annexation that is de jure annexation. But both are intended to produce legal effects. In the present Opinion, the Court could have clarified the terminology, particularly because, without such a clarification, another term, that of “gradual” or “creeping” annexation, cannot be properly defined. Unfortunately, the Opinion (para. 160) does not fully clarify the distinction between these types of annexation, and limits itself to stating that both the de jure and the de facto annexations share the same objective of asserting permanent control over the occupied territory.

32. Finally, in the alternative, we believe that, even if the Court had been consulted by the General Assembly on the question of the legality of the occupation, which is not the case, and if, consequently, it had needed to address this question, it would have been impossible for it to conclude to its illegality. The information before the Court and the law it is bound to apply cannot support such a conclusion, for several reasons.

33. The legality ab initio of a situation of military occupation mainly depends on the question of whether the military action which gave rise to the occupation can be considered lawful or unlawful in terms of jus ad bellum. But the Court did not receive sufficient information to rule, on an objective basis, on the respective responsibilities of the various parties involved in the armed conflict of 1967. The Court therefore cannot assess the legality of Israel's use of force which is at the direct origin of the occupation at issue in the present case. Assessing the legality of this use of force, in the specific context of the events preceding the outbreak of the conflict, would involve ruling on complex issues of fact and law. This could only be done on the basis of complete information — which the Court does not possess — and an adversarial debate — which has not taken place.

It is therefore rightly that the Opinion refrains from taking a stance on the legality of Israel's use of force in 1967. Consequently, it is not possible to assert, in this Opinion, that the state of occupation is illegal ab initio, that is, since June 1967.

34. Obviously, it is not impossible that, even if an occupation is initially lawful, it ceases to be so at a certain point in time.

35. However, the mere passage of time does not suffice to render an occupation illegal, regardless of its duration. It is evident that an occupation is, by nature, a temporary situation that is destined to end at one point or another. However, international law does not lay out any time-limit beyond which an occupation would become ipso facto illegal. It all depends on the circumstances. Clearly, a duration of 57 years is exceptionally long, with few historical parallels. But that is not enough: this duration must be considered in light of the exceptionally complex history and nature of the Israeli-Palestinian conflict and the many successive attempts at resolution, the failure of which cannot be attributed to a single party.

36. In fact, the relevant question is whether the occupying Power — Israel — could today completely withdraw from the occupied territories “as rapidly as possible”, in the absence of any guarantee, without exposing its security to substantial threats. In the current context, we find it quite difficult to answer this question in the affirmative. Israel's full withdrawal from the occupied territories and the implementation of the right to self-determination by the Palestinian people is intrinsically linked to Israel's (and Palestine's) right to security. The Hamas movement, which has gained control and subsequent administration of the Gaza Strip shortly after the withdrawal of the occupying forces on the ground, and which positions itself as a competitor to the Palestinian Authority for the political leadership of Palestinians in the Occupied Palestinian Territory as a whole, denies the very legitimacy of the existence of the State of Israel; it thus opposes the “two-State solution”. From this perspective, the fact that “the existence of the Palestinian people's right to self-determination cannot be subject to conditions on the part of the occupying Power, in view of its character as an inalienable right” (para. 257) cannot limit Israel's right to security. This right is an intrinsic part of the State's fundamental right “to exist in peace and security” (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 183, para. 118) or “to survival” (see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 263, para. 96), in other words, of the sovereignty.

37. The Opinion disregards all the preceding considerations. It relies on the implicit idea that Israel does not have serious security concerns, or that such concerns, if they exist, are irrelevant. We disagree. Without diminishing Israel's responsibility in the current deadlock in any way, or denying the illegality of several aspects of its policy in the Occupied Palestinian Territory and of its refusal to respect the rights of the Palestinian people and of the Palestinians, we believe it is simply fair to also acknowledge that this State faces serious security threats, and that the persistence of these threats could justify maintaining a certain degree of control on the occupied territory, until sufficient security guarantees, which are currently lacking, are provided. It is difficult to see how such guarantees could be provided outside the conclusion of a comprehensive settlement, which Israelis and Palestinians have indeed approached at times in their conflicted history.

38. It is regrettable that the Opinion, instead of taking into account the legitimate rights and interests of all parties involved, chose to portray the facts in an incomplete and one-sided manner, drawing an implicit parallel between the Israeli-Palestinian conflict and the two situations on which the Court has previously been asked to provide an opinion (Namibia and Chagos), from which it, however, radically differs.

39. Furthermore, to be fully carried out, the assessment of the legality of the occupation should also have included the consideration of two essential elements: the Oslo Accords and the relevant resolutions adopted by the Security Council from 1967 to present, which have significant effects in this regard.

These documents, and their legal consequences, will be examined in the next section of this opinion.

IV. The legal impact of the Oslo Accords and of relevant Security Council resolutions

40. We are of the opinion that the legal impact of the Oslo AccordsFootnote ¹ and of the relevant Security Council resolutions should have been duly taken into account by the current Opinion. The combined legal effects of the Oslo Accords and of the relevant Security Council resolutions are pertinent not just for Israel and Palestine, but also for the United Nations organs involved in the Middle East peace process and for the international community as a whole.

41. Indeed, it is striking that the Opinion ignored these important legal sources, which were very selectively cited and considered in the Opinion, and especially their significant legal effects for the proper analysis of the legality of the occupation, for the responsibilities and obligations of both Israel and Palestine, as well as for the future efficient unfolding of the negotiations which should result in the “two-State solution” “where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders, consistent with international law and relevant UN resolutions” (Security Council resolution 2735 (2024), para. 6)Footnote ².

42. Actually, a correct combined interpretation of the Oslo Accords and of the relevant Security Council resolutions clearly illustrates their legal effects, which continue to be valid at present. These legal effects relate to the close relationship between, on one hand, the package “right to self-determination — right to security” (these two rights being intrinsically interconnected) and, on the other hand, (1) the issue of the legality of occupation, as well as (2) the way this package needs to be implemented within the negotiation framework agreed between Israel and Palestine and supported by the relevant Security Council resolutions. Naturally, these legal effects impact the obligations of both Israel and Palestine related to the issue of the legality of occupation and to the implementation of the parameters established within the negotiation framework.

43. Thus, it is regrettable that the Opinion dismissed the Oslo Accords as being quasi-irrelevant. This approach is wrong for several reasons. First, the Oslo Accords, the relevance of which was emphasized by many participants to these proceedings, are the main instruments of the Israeli-Palestinian relationship. They have not ceased to be in force. Second, from a legal standpoint, the two Oslo Accords, in particular Oslo II, continue to be applicable to almost all aspects of daily life in Palestine, and are intended to govern the multidimensional relationship between Israel and Palestine. Despite their initial temporary purpose, they created a certain sense of stability. This stability based on having a clear set of rules in place may explain why neither of the parties has denounced the Accords.

44. But, most importantly, the 1993/1995 Oslo Accords formally adopted, between Israel and Palestine, the package “right to self-determination — right to security”, based on the Security Council resolutions 242 (1967) and 338 (1973), with direct impact on the conditions for ending the occupation of the Occupied Palestinian Territory, as well as the framework for negotiations ultimately leading to the “two-State solution” — which again will signify the end of the occupation. Indeed, the occupation being temporary by nature, the occupying Power is under an obligation to end the occupation as soon as it is no longer necessary to ensure its security. The Opinion failed to articulate this reasoning.

45. Thus, Oslo I is the first international instrument where Israel recognized the existence of the Palestinian people (Oslo I, preambular paragraph). It also provides for recognition of the two sides' “mutual legitimate and political rights”, which assume to “strive to live in peaceful coexistence and mutual dignity and security and achieve a just, lasting and comprehensive peace settlement” (ibid.). It also envisages that negotiations would be conducted by the two parties during a transitional period, “leading to a permanent settlement based on Security Council resolutions 242 (1967) and 338 (1973)”. Article I (Aim of the Negotiations) repeats the reference to the two Security Council resolutions:

The reference to the two resolutions, especially to resolution 242 (1967), is of particular relevance, since it mentions the “right to live in peace within secure and recognized boundaries free from threats or acts of force”. The term “recognized” (boundaries) should be interpreted as a reference to the territorial definition of the Palestinian State as resulting from the permanent status negotiations, while the term “secure” (boundaries) should be interpreted as a reference to the right to security of Israel and to the right to security of the Palestinian State.

46. In other words, the permanent peace settlement based on the “two-State solution” is directly linked with the right to security: the boundaries, which define the territory of both States, including the Palestinian one, are connected with ensuring the security of the two States, Israel and Palestine. Article V (Transitional Period and Permanent Status Negotiations) of Oslo I also mentions the important issues to be covered by the negotiations: Jerusalem, Palestinian refugees, settlements, security arrangements, borders and other issues (see also the Agreed Minutes of Oslo I in Article IV (2)), thus again putting in connection the main elements of the permanent status: self-determination (the realization of which is dependent on the outcome of the negotiations on, inter alia, territory, borders, settlements) and security.

47. Oslo II also includes the above-mentioned elements, especially the reference to the determination of the parties to live in peaceful coexistence and mutual dignity and security, while recognizing their mutual legitimate and political rights, the reference to the permanent settlement based on Security Council resolutions 242 (1967) and 338 (1973), and the above-mentioned link between self-determination and security.

48. Israel's right to security, but also that of Palestine, which represent the second element of the above-mentioned package along with the right to self-determination, as main elements of the “two-State solution”, are of particular relevance. Regrettably, the right to security was almost completely ignored by the current Opinion.

49. But, in our view, the package “right to self-determination — right to security” does not exclusively refer to Israel's right to security. The Security Council resolution 242 (1967) sets out that to achieve a just and lasting peace in the Middle East, the relevant parties must respect and acknowledge “the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force”. This connection between the outcome of the Middle East peace process and the right to security of all States in the region — the wording being not limited to the States existing at the moment of the adoption of the resolution, but extending to future ones as well, thus including the Palestinian State — is essential.

50. The obligation to implement resolution 242 (1967) “in all of its parts” is reaffirmed in Security Council resolution 338 (1973) and on many occasions thereafter. For instance, resolution 1515 (2003) “[e]ndorses the Quartet Performance-based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict” and “[c]alls on the parties to fulfil their obligations under the Roadmap . . . and to achieve the vision of two States living side by side in peace and security”. It has a balanced approach, by “[r]eiterating the demand for an immediate cessation of all acts of violence, including all acts of terrorism, provocation, incitement and destruction”, by “[r]eaffirming its vision of a region where two States, Israel and Palestine, live side by side within secure and recognized borders”, thus recalling the package “right to self-determination — right to security (of both sides)”. At its turn, resolution 2334 (2016) of 23 December 2016 reaffirms resolutions 242 (1967), 338 (1973) and others, and

this last principle representing another term for the package “right to self-determination — right to security”. The most recent Security Council resolution — 2735 (2024) — also restated

thus reiterating the mentioned package.

51. It is important to note that not only the resolutions adopted under Chapter VII of the Charter of the United Nations are binding. As the Court has explained in the Namibia Advisory Opinion, a careful analysis of the language of a resolution is required before a conclusion can be made as to its binding effect (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 53, para. 114). Regarding the Middle East peace process, the Security Council, in exercising its primary responsibility for the maintenance of international peace and security under Article 24 of the Charter, adopted numerous relevant resolutions, some of them cited above. The analysis of those resolutions shows, in our view, that they are not merely declaratory, but mandatory and legally binding as far as the principles which they constantly reaffirmed on this matter, are concerned. We regret that the Opinion chose to ignore their relevance and value.

52. But unfortunately, the Opinion also ignores the Court's own previous findings in the Wall Opinion. Paragraph 118 of that Opinion acknowledges the intrinsic interdependence between the right to self-determination and the right to security: it mentions in essence that the existence of the Palestinian people “has . . . been recognized by Israel in the exchange of letters of 9 September 1993 between Mr Yasser Arafat, President of the Palestine Liberation Organization (PLO) and Mr Yitzhak Rabin, Israeli Prime Minister”, while in the same correspondence “the President of the PLO recognized ‘the right of the State of Israel to exist in peace and security’”, in other words, Israel's right to security. The Wall Opinion, in its same paragraph 118, referring to Oslo II repeated provisions regarding the “legitimate rights”, “considers that those rights include the right to self-determination”. In another paragraph of the Wall Opinion (para. 162), the Court also notes that “the situation can be brought to an end only through implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973)” and refers to the “Roadmap” approved by Security Council resolution 1515 (2003) towards the “two-State solution”. In this way, the Court also endorsed the negotiation framework defined by the above-mentioned Security Council resolutions.

53. But the current Opinion neglects not only the above-mentioned references in the Wall Opinion, but also the General Assembly resolution 77/247 of 30 December 2022, which itself includes the Request for the current Opinion and represents its legal basis, and which refers in detail to the package and negotiation framework mentioned above. Thus, this resolution recalls “the relevant resolutions of the Security Council, and stress[es] the need for their implementation”, it also stresses the

It also noted the

Finally, resolution 77/247 also reiterates the “demand for the full implementation of Security Council resolution 1860 (2009)”, which, at its turn, calls for

54. The current Opinion ignores as well the fact that despite periods of violence and allegations by each side that the other failed to adhere to its commitments, neither the Israeli and Palestinian sides, nor the General Assembly, nor the Security Council have abandoned the central precept that direct negotiation on the basis of the “land for peace” principle is the path to comprehensive, just and lasting peace and security.

55. Another relevant element concerns the legal impact of the understanding reached between the parties in the Oslo Accords on the issue of settlements in the Occupied Palestinian Territory, a matter yet again ignored by the current Opinion. “Settlements” in Oslo II encompass “settlements in Area C” (Oslo II, Article XII (5)). The parties to the Oslo Accords agreed that “[n]either side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations” (Oslo II, Article XXXI (7)). We are of the view that this obligation of Israel not to alter the status of the West Bank implies that any new settlements created in Area C and beyond it (if any) after 1995 (when Oslo II was concluded) are in breach also of this Accord.

56. After thoroughly analysing the situation, both factual and legal, we are convinced that the post-1995 settlements combined with other measures, such as the expulsion of the local Palestinian population or the application of Israel's domestic legislation to the occupied territory, are indicative of the intent to annex the territory comprising these settlements of Area C, but not the West Bank as a whole. Unfortunately, the Opinion does not make such necessary distinctions.

57. Before concluding this section, we point out that the Opinion fails to take into account certain provisions of the Oslo Accords which are relevant for a complete analysis concerning the legality of the occupation. For instance, the Opinion includes no analysis of Israel's right to security as confirmed by the Accords. In Oslo I it is agreed that “Israel will continue to carry the responsibility for defending against external threats, as well as the responsibility for overall security of Israelis for the purpose of safeguarding their internal security and public order” (Oslo I, Article VIII; see also Annex II of the Agreed Minutes of Oslo I). In Oslo II the parties agree, inter alia, to “take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against each other, against individuals falling under the other's authority and against their property, and shall take legal measures against offenders” (Oslo II, Article XV(1)). They also agree that they will

At the same time, Article XIII (2) (a) of Oslo II includes a provision underlining the importance of Israel's right to security: “Israel shall have the overriding responsibility for security for the purpose of protecting Israelis and confronting the threat of terrorism.”

58. Of course, we are of the view that the provisions of the Oslo Accords, freely agreed by the parties, cannot be interpreted as derogating from the rules of international humanitarian law or international human rights law. Nor can such provisions entitle Israel to claim the respect of certain of its rights in the absence of the observance by Israel of its obligations set forth by these Accords.

59. We believe that the above elements are particularly relevant, since this Opinion does not deal, like the Wall Opinion, with “only one aspect of the Israeli-Palestinian conflict” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 160, para. 54), but with much more general, numerous and far-reaching elements of what the Court characterized in that Opinion as the “greater whole” (ibid.). A “greater whole” which made the Court state in the Wall Opinion that “it would take this circumstance carefully into account in any opinion it might give” (ibid.). Unfortunately, the Opinion does not do that.

V. Conclusion

60. Based on the preceding analysis, we have to express our deep regret that this Advisory Opinion did not take account of and develop further on the legal issues of pressing concern discussed above.

Thus, on the issue of the legality of occupation, the Court should have responded in the sense that “Israel's policies and practices” in the Occupied Palestinian Territory do not affect the “legal status of the occupation”, as explained above. Such a response, which we believe to be the only legally correct one, would have spared the Court from taking a stance on the legality of the occupation itself, an issue on which it was not asked to pronounce. Since the Court has taken a stance on this issue, it should have done so correctly by taking into account all relevant parameters, which it did not do.

In this respect, a sound legal analysis would have compelled the Court to take into account the Oslo Accords, Israel's and Palestine's rights to security and the relevant Security Council resolutions, as well as the interdependence between the right to self-determination and the right to security, thus allowing the Court to fully contribute to the Middle East peace process, in conformity with its functions to interpret and apply international law to the complex set of circumstances incident on the matter. Unfortunately, the Advisory Opinion preferred to undertake a narrower analysis and reached conclusions that do not have a proper legal basis in international law.

61. The Court could have thus elaborated a more comprehensive, balanced and nuanced Opinion that would have been more beneficial for future Israeli-Palestinian peace negotiations, thus becoming a step forward and an efficient instrument for Israel and Palestine to resume negotiations on the implementation of the “two-State solution” and for the two States to manage to live side by side in peace and security. In this way, this Advisory Opinion could have served as a guidepost to the Security Council and the General Assembly, that are directly responsible for supporting the efforts of Israel and Palestine to find a peaceful and sustainable solution.

62. It is thus regrettable that the Court did not discuss and establish, along with the findings (which we support) related to Israel's breaches of international law (including the impeding of the exercise of the right to self-determination of the Palestinian people) and the responsibilities and obligations stemming from them, Palestine's responsibilities and obligations arising from the intrinsic interdependence between the right to self-determination of the Palestinian people and the rights to security of Israel and of Palestine, and from the negotiation framework. As Israel must respect and facilitate the exercise of the right to self-determination of the Palestinian people and the right to security of the Palestinian State, Palestine must respect the right to security of Israel, offer guarantees for its implementation, and co-operate with Israel for this purpose. The intrinsic interdependence of these two rights (to self-determination and to security), as resulting from the Oslo Accords and the relevant Security Council resolutions, creates a legal obligation of their simultaneous implementation.

63. It is equally regrettable that the Opinion did not state that both Israel and Palestine are under the obligation to resume without delay the direct negotiations for the permanent status leading to the “two-State solution”, based on the negotiation framework defined by the Oslo Accords and the relevant Security Council resolutions. It is also unfortunate that the Opinion did not draw the attention to the Security Council and General Assembly of the need to reinforce the efforts for achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and thus to the establishment of a Palestinian State, with the aim of reaching the objective of the two democratic States, Israel and Palestine, living side by side in peace and security, with secure and recognized borders. We regret that the Opinion does not encourage all States to support Israel, Palestine, and the United Nations in their efforts to achieve the objectives mentioned above, which include the full realization of the right to self-determination of the Palestinian people.

64. We therefore express our concern that the current Opinion will hardly serve the objective of achieving the “two-State solution”, thus allowing for the peaceful coexistence of the Israeli and Palestinian peoples.

(Signed) Peter TOMKA.

(Signed) Ronny ABRAHAM.

(Signed) Bodgan-Lucian AURESCU.

I. Introduction

1. In this Advisory Opinion, the Court concludes, in reply to the second question posed by the United Nations General Assembly (hereinafter the “General Assembly”), that Israel's continued presence, as an occupying Power, in the Occupied Palestinian Territory is illegal. The Court reaches this conclusion in view of Israel's violation of two fundamental rules and principles of general international law and of the United Nations Charter in the context of a belligerent occupation. These are the prohibition of the acquisition of territory by force and the right of peoples to self-determination (Advisory Opinion, para. 261). For the reasons explained below, I am of the view that the Court should also have reached this conclusion in view of the illegality of an excessively prolonged occupation under international law.

2. The rules of customary law governing belligerent occupation had their origin in the European public law of the nineteenth century (jus publicum europaeum). At the time, those rules were not considered to be applicable to “colonial occupation” of non-European territories. This exemption of colonization from the jus in bello made it easier for European powers to realize their colonial ambitions and to conquer foreign lands without any legal limitations. However, the belligerent occupation of the territory of those who belonged to the self-styled circle of “civilized nations” had to be regulated and temporarily limited under the laws of war embodied in the aborted Brussels Project (1874), the Oxford Manual (1880) and the Hague Regulations (1907). Such territories could not be subjected to an indefinite “colonial occupation” but had to be returned to their sovereign soon after the cessation of hostilities, most often after one year.

3. It is only with the outlawing of colonialism following the gradual implementation of the United Nations Charter principle of equal rights and self-determination of peoples that the concept of “colonial occupation” was done away with in international law. This was done, among others, through the General Assembly resolutions codifying customary international law on decolonization (e.g. resolution 1514 (XV)) or elaborating on the fundamental principles of the United Nations Charter (e.g. resolution 2625). At the same time, the concept of belligerent occupation and its temporary character were further refined in the Fourth Geneva Convention and came to be widely accepted as the only legal standard governing occupation in international law.

4. Thus, any belligerent occupation which substitutes an indefinite occupation for the legally sanctioned temporariness of belligerent occupation takes on the characteristics of colonial occupation or of conquest, both of which are contrary to the United Nations Charter and to contemporary principles of international law. The most relevant issues to be considered in such a case are: first, the extent to which the prolonged occupation has departed from the tenets and rules of the law of belligerent occupation (jus in bello); and secondly, whether or not this prolonged occupation is contrary to the rules concerning the prohibition of the use of force (jus ad bellum). A prolonged occupation which runs afoul of both sets of rules can offer no justification under international law of the continued presence of the occupying Power in the occupied territory.

II. The prolonged occupation of the Occupied Palestinian Territory: denying the applicability of the law of belligerent occupation (JUS IN BELLO)

5. As noted in the Advisory Opinion, the nature and scope of the powers and duties of an occupying Power “are always premised on the same assumption: that occupation is a temporary situation to respond to military necessity, and it cannot transfer title of sovereignty to the occupying Power” (para. 105). In this respect, certain individual rules of the law of occupation are identified in the Advisory Opinion as being particularly illustrative of the premise that occupation must be temporary:

6. The above rules require an occupying Power to preserve as much as possible the status quo ante in the occupied territory and to hold it in a certain kind of trust for the occupied population until such time as control over the territory is returned to the rightful sovereign. In the words of the Advisory Opinion, “[t]hese provisions emphasize that occupation is conceived of as a temporary state of affairs, during which the exercise by the occupying Power of authority over foreign territory is tolerated for the benefit of the local population” (para. 106).

7. This is supported by the Commentary of the International Committee of the Red Cross on Article 47 of the Fourth Geneva Convention, which reads as follows:

8. It is evident from the foregoing that occupation must always be a temporary state of affairs. It is true that the rules of the law of occupation do not expressly impose precise time-limits according to which the occupying Power must terminate its occupation and withdraw from the occupied territory. However, if occupation were to be allowed to continue indefinitely, thus gradually transforming itself into conquest or colonization, the legal tenets underlying the régime governing belligerent occupation, such as the protection of the interest of the occupied people and the return of sovereignty, would be rendered meaningless.

9. In the case of the Occupied Palestinian Territory, Israel has maintained an occupation for over 57 years. The Security Council had already by 1980 reaffirmed “the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem” (Security Council resolution 476 (1980)). It is notable that, already in 1980, the Security Council deemed the occupation prolonged. In the words of Mr Riyad Mansour of the Palestinian delegation during the oral proceedings: “If the occupation was deemed prolonged in 1980, how should it be characterized today, nearly 45 years later?”Footnote ² Indeed, this situation can no longer be considered, in 2024, only as a prolonged occupation, but has to be characterized as an “excessively prolonged occupation”. Since 1980 — or even much earlier, when it was first called upon to withdraw from territory occupied in 1967, in Security Council resolution 242 (1967) — Israel has continued to disregard various resolutions of the Security Council and the General Assembly calling for an end to the occupation.

10. Israel's excessively prolonged occupation has subjected the Palestinian people to a régime of indefinite alien subjugation and domination which is contrary to all rules and tenets of the law governing belligerent occupation. This is reflected in the realities on the ground, which also include, inter alia, Israel's transfer of its civilian population into the occupied territory, the confiscation of land, the exploitation of natural resources, the extension of its domestic law into the occupied territory and the forced displacement of, and discrimination against, the Palestinian population. It is also corroborated by Israel's repeated denials that the Fourth Geneva Convention is applicable to the Occupied Palestinian Territory and its consequent rejection of the rules and principles of the law on belligerent occupation.

11. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court felt obliged to clarify the legal situation regarding the applicability of the Fourth Geneva Convention by affirming that

In the present Advisory Opinion, the Court has also confirmed that the Fourth Geneva Convention is applicable throughout the Occupied Palestinian Territory, including the Gaza Strip (see Advisory Opinion, paragraphs 78 and 96).

12. Israel's excessively prolonged occupation, which has lasted for more than half a century, violates the basic tenet that belligerent occupation must be temporary, which is one of the main features distinguishing such occupation from colonial occupation and conquest. Moreover, an indefinite prolongation of occupation has a direct bearing on the very legality of the occupation. Any military occupation of foreign territory that changes the characteristics of belligerent occupation under international humanitarian law and decouples it from its normative framework must be considered unlawful. It follows that Israel's prolonged occupation of the Occupied Palestinian Territory is to be considered unlawful by dint of its prolonged character in disregard of the law of belligerent occupation.

III. The prolonged occupation of the Occupied Palestinian Territory: defying the rules of the law on the use of force (JUS AD BELLUM)

13. As stated by the Court in the present Advisory Opinion, “an occupation involves, by its very nature, a continued use of force in foreign territory. Such use of force is, however, subject to the rules of international law governing the legality of the use of force or jus ad bellum.” (Para. 253.) A prolonged occupation cannot be justified on the basis of those rules unless the conditions for lawful self-defence continue to exist throughout the period of occupation. In other words, the occupying Power must be able to show, at all times, that the maintenance of its prolonged occupation is due to military necessity, which has to be proportionate to legitimate military objectives. However, the self-defence rationale cannot be invoked against a potential or future threat that might emanate from the occupied territory.

14. Israel's maintenance of its excessively prolonged occupation of the Occupied Palestinian Territory does not meet these standards. It does not satisfy the criteria of necessity and proportionality for self-defence under Article 51 of the United Nations Charter. Moreover, the violation by Israel of the basic tenets of the law of occupation may point to an illegitimate continued use of force aimed at creating a perpetual situation of conflict to justify a prolonged occupation. However, if the prohibition of the use of force under the United Nations Charter is to be meaningful, the exception of self-defence cannot be allowed to prolong unlawfully a belligerent occupation.

15. The Security Council had already determined in its resolution 242 (1967) that the state of belligerency, following the June 1967 war in which the Palestinian territories were occupied by Israel, had to be terminated. Thus, in paragraph 1 of the above-mentioned resolution, the Security Council

16. Although the law of occupation (jus in bello) does not impose, as pointed out above, a precise time-limit for the termination of belligerent occupation, the issue of the legality of the continued use of force, in the form of belligerent occupation, is determined by the law on the use of force (jus ad bellum). It is under this law that whether the conditions for self-defence still exist must be established. Indeed, the duration of a belligerent occupation is subject to an ad bellum test whereby, if the continued use of force can no longer be justified on grounds of self-defence against an imminent threat or use of force, it must be terminated.

17. In light of the above, a prolonged and indefinite use of force against an occupied population constitutes a breach of the law on the use of force. It cannot be justified for more than half a century on military necessity. It goes beyond the specific defensive needs which might have originally justified it, if they ever existed, and turns it into alien subjugation and domination of a people which is contrary to the principles and purposes of the United Nations Charter. Thus, Israel's prolonged occupation is also to be considered unlawful in view of its continued violation of the law on the use of force (jus ad bellum).

(Signed)  Abdulqawi Ahmed YUSUF.

The scope of the Court's analysis

2. The Court has responded to the request submitted by the General Assembly on the basis of a limited factual and legal assessment. As the Court states in paragraph 77,

Thus, the Advisory Opinion has undertaken neither a “detailed factual determination” nor a legal determination of Israel's responsibility for individual acts. Instead, it offers a “legal characterization” of “the main features of Israel's policies and practices”.

3. The way in which the Court defines the factual and legal scope of its analysis is in line with the Court's established approach in advisory proceedings. This approach is rooted in the differences between advisory proceedings, on the one hand, and contentious proceedings, on the other. These differences inform the standards by which the Court arrives at its factual and legal conclusionsFootnote ¹ and are critical for the character of those conclusions in the present case.

4. In contentious proceedings, the Court “decide[s] . . . disputes” in a binding and final mannerFootnote ². These proceedings are retrospective: their contribution to the peaceful settlement of disputes consists in ending a dispute by making a binding determination that is endowed with legal certainty and finality, the res judicata effect. In contrast, advisory proceedings are consultative and prospective: the Court gives an advisory opinion on a legal question to provide guidance for the requesting organ's future conductFootnote ³. The conclusions of the Court in advisory opinions are not the end but the beginning of a process that seeks to establish and maintain peace through law. Indeed, “the requesting organ remains formally free to consider the consequences to be drawn from the Court's opinion”Footnote ⁴. Therefore, the conclusions made in advisory proceedings complement and facilitate, but can never replace, other procedures for the peaceful settlement of disputesFootnote ⁵. Indeed, this Court has emphasized that “the legal position of the State which has refused its consent to the present proceedings is not ‘in any way compromised by the answers that the Court may give to the questions put to it’”Footnote ⁶.

5. The particular purpose of advisory proceedings explains why the factual assessment in this Advisory Opinion has a different focus and depth than factual determinations made in contentious proceedings. This does not mean that the standard of proof in advisory proceedings is lower. However, it is different from that in contentious proceedings, where the burden of adducing evidence lies with the partiesFootnote ⁷. In advisory proceedings the Court will examine the facts only to the extent necessary for its response to the legal question posed, and it will draw legal conclusions only to the extent permitted by those factsFootnote ⁸. It is this well-established approach that has guided the Court in the present proceedings, as is recalled in paragraph 46 of the Advisory Opinion, according to which

In cases involving very broad requests, such as the present one, the function of advisory opinions to provide guidance to the requesting organ justifies a particularly broad and merely illustrative approach to the factual assessment. However, this broad focus, together with the principle of consent to jurisdiction, precludes such assessment from having the conclusive effect attributed to factual assessments for the purpose of determining State responsibility in contentious proceedings.

6. The particular focus of the Court's factual assessment, its “bird's-eye view” of the situation, has implications for the legal scope of the Court's conclusions in the present case. Since the Court has not made a fuller determination of Israel's responsibility for its conduct in the Occupied Palestinian Territory, Israel's responsibility for specific conduct or situations would need to be established in other proceedings. For this reason, paragraph 77 clarifies that this Advisory Opinion is concerned with “the legal characterization by the Court of Israel's policies and practices” — not with a “legal determination”. Any conclusive legal determination of Israel's responsibility for specific conduct would require a full investigation into the facts constituting such conduct, including a careful consideration of whether Israel's security concerns may be legally relevant with respect to any specific situation.

7. It is regrettable that the Advisory Opinion and the reports on which it relies have not engaged more with security concerns which Israel has and expresses as reasons for its policies and practices. It is also regrettable that Israel did not comment on the substance of the questions put by the United Nations General Assembly, including regarding its security concerns. The Court could have better demonstrated that it has considered Israel's arguments to the extent that they are publicly available, including by drawing on decisions of the Supreme Court of Israel and the arguments put forward by the Israeli authorities in the respective proceedingsFootnote ⁹, as well as Israel's submissions in other international foraFootnote ¹⁰. I think that the persuasiveness of this Advisory Opinion would have benefited considerably from a visible engagement with information from official Israeli sources.

Apartheid and racial segregation

8. The Court considers that Israel's legislation and measures constitute a breach of Article 3 of CERD (at paragraph 229) while leaving open the question whether it considers Israel's policies and practices to be a form of racial segregation or apartheid. In the absence of any discussion of the subjective element of apartheid, which is a core element of the prohibition, the Opinion cannot be understood as finding that the prohibition of apartheid has indeed been violated by Israel. Also, I am not convinced that the Court has sufficient information before it to conclude that Israel's policies and practices amount either to apartheid or to racial segregation.

9. Article 3 of CERD does not define the term “apartheid”. Definitions of the crime of apartheid are contained in Article II of the 1973 Apartheid Convention and in Article 7 (2) (h) of the 1998 Rome Statute, but Israel is not a State party to either treaty. Moreover, these two treaties are of a different character than CERD, as they deal with the “crime of apartheid”, and thus the responsibility of individuals for apartheid, whereas Article 3 of CERD contains a prohibition of apartheid addressed to States.

10. However, the Apartheid Convention and the Rome Statute can inform the interpretation of Article 3 of CERD as a supplementary means of interpretation pursuant to Article 32 of the Vienna Convention on the Law of Treaties (hereinafter “VCLT”) and — to the extent that they reflect customary international law — as relevant rules of international law applicable between the parties under Article 31 (3) (c) of the VCLT. Despite their terminological differences, both definitions help to identify the meaning of apartheid under Article 3 of CERD in customary international law. They demonstrate that a high threshold must be met, as a matter of law, for identifying practices of apartheid.

11. The ordinary meaning of the term “apartheid”, as informed by these two treaties, suggests that apartheid is a State-sanctioned and institutionalized régime of discrimination which has the purpose of establishing and maintaining domination and oppression by one racial group over another. This core definition of apartheid comprises three elements: first, the relevant policy and practice must concern the relationship between racial groups; second, the relevant policy and practice must display an objective element (actus reus) which consists in the commission of “inhumane acts” of a structural and institutionalized natureFootnote ¹¹; third, the relevant policy and practice must be motivated by a subjective element (mens rea) which not only requires the intentional commission of inhumane acts of a certain gravity, nature and scale, but also that the purpose of these acts is the establishment and maintenance of an institutionalized régime of domination and oppression (dolus specialis)Footnote ¹².

12. I have serious doubts that the information before the Court is sufficient to conclude that the subjective element of apartheid is present in the situation of the Occupied Palestinian Territory. Given the exceptional gravity of a violation of the prohibition of apartheid, a peremptory rule of general international law, claims against a State involving charges of apartheid “must be proved by evidence that is fully conclusive”Footnote ¹³. The Court should only find that a State has the required dolus specialis of apartheid when the “only reasonable inference” from its conduct is an intention to maintain an institutionalized régime to systematically oppress and dominate a racial or ethnic group, in Israel's case the Palestinians relative to Israeli JewsFootnote ¹⁴. This dolus specialis should only be considered as being established where other inferences are clearly implausible.

13. I doubt that the only reasonable inference which can be drawn from Israel's policies and practices in the Occupied Palestinian Territories is that of an intention to maintain an institutionalized régime to systematically oppress and dominate the Palestinians relative to Israeli Jews. Even if these policies and practices are discriminatory and disproportionate, and thus constitute large-scale violations of international human rights law and international humanitarian law — which, in my view, is undoubtedly the case — there are at least two other possible purposes which Israel may pursue by them. First, these policies and practices may be motivated by temporary, albeit long-term, security considerations (even if they are unjustified), and/or, second, they may be driven by the — misconceived and illegal — aim of asserting sovereignty over the West Bank, without the simultaneous intention of thereby permanently maintaining an institutionalized discriminatory régime for all inhabitants of the West Bank.

14. I have doubts that the ambition of Israel to annex the West Bank, as demonstrated by its radicalized more recent settlement policy and practice, necessarily implies that it now intends to institutionalize the — until then temporary and at least partly security-oriented — legal régime for the Palestinian inhabitants of the West Bank in relation to the settlers and the settlements, and thus to make it permanent. The intention to annex a territory and the decision to institutionalize a particular racially oppressive régime do not necessarily go together. In the present case they may well go together, but it is also possible that Israel does not intend the way in which it exercises its occupation of the West Bank, as regards the relationship between the Palestinians and the settlers, to become permanent and institutionalized. I think that there is insufficient information to draw a definite conclusion.

15. The decision as to which conclusion to draw from Israel's ambiguous approach with respect to the relationship between the Palestinian inhabitants of the West Bank and the settlers depends on a careful evaluation of the facts and related evidence. In my view, the information before the Court is not sufficient to conclude that other possible inferences are clearly implausible. In any event, the present Advisory Opinion neither defines the subjective element of apartheid nor explains how Israel's conduct in the present case fulfils this particular element. I therefore do not think that the Court's reasoning under Article 3 of CERD can be interpreted as finding that Israel's conduct amounts to apartheid.

16. Does the information before the Court suffice to find that Israel's practices and policies qualify as “racial segregation” in the sense of Article 3 of CERD? This raises the important question of how racial segregation is defined and how it is distinguished from apartheid. I am not convinced by the very narrow understanding of the term “racial segregation”, according to which it is limited to practices that are equivalent to “apartheid” beyond the specific historical situation of South AfricaFootnote ¹⁵. The travaux préparatoires of Article 3 of CERDFootnote ¹⁶, as well as the definition in Article II of the 1973 Apartheid Convention, clarify that the concepts of apartheid and racial segregation are distinct yet closely interrelated practices. Racial segregation is the broader term, apartheid being the gravest form of racial segregation. Yet, both apartheid and racial segregation represent systemic and, as the Advisory Opinion puts it, “two particularly severe forms of racial discrimination” in the sense of Article 1 of CERD. I therefore believe that “racial segregation” also requires proof of the presence of a qualified subjective element, namely that a segregation along racial lines is intentionalFootnote ¹⁷.

17. The policies and practices described by the Court in paragraphs 120 to 154 and 192 to 222 certainly constitute grave violations of human rights and they have segregative effects. However, in the absence of any engagement with the subjective element of racial segregation, i.e. proof that Israel by these policies and practices intends to establish a segregation along racial or ethnic lines, the analysis of Article 3 of CERD in paragraphs 226 to 229 of the present Advisory Opinion remains insufficient. In particular, the Court would have to show that any segregative effects are based on one of the prohibited grounds contained in Article 1 of CERD and not on citizenship. Indeed, in situations of occupation, a certain legal separation between the population of the occupying Power and the population in the occupied territories is even prescribed by the law of occupation. According to Article 43 of the 1907 Hague Regulations, the occupying Power must “respect[], unless absolutely prevented, the laws in force in the country”. At the same time, Article 64 (2) of the Fourth Geneva Convention allows the occupying Power to

18. Thus, the law of occupation itself envisages a difference in treatment between the nationals of the occupying Power and the protected population in the occupied territory. This is not to say that Israel's segregative practices are justified under the law of occupation. However, given the overlap between the law of occupation and CERD in the present case, a conclusion that the segregation in the present case runs along racial or ethnic lines requires a particularly thorough analysis of the facts.

19. The Court may only “arrive at a judicial conclusion upon any disputed questions of fact” if it “has before it sufficient information and evidence”Footnote ¹⁸. Since the Court did not identify enough information substantiating the existence of the subjective element required by Article 3 of CERD, it should have refrained from observing that Israel's legislation and measures constitute a breach of Article 3 of CERD. This would not have prevented the Court from observing that Israel's practices and policies have segregative effects which constitute violations of other provisions of CERD.

(Signed)  Georg NOLTE.

I. Discrimination on multiple grounds

2. The Court observes that the essence of prohibited discrimination in international law is the unjustified differential treatment between persons belonging to different groups (Advisory Opinion, paragraphs 190-191). It notes “that differential treatment might not be experienced by all members of the Palestinian group in the same way, and that some members of the group might be subjected to differential treatment on multiple grounds” (Advisory Opinion, paragraph 190). This recognition that individual members of a group may experience discrimination in different ways and on multiple grounds is important. Palestinians as a group share an ethnicity, but they also have many different identities individually — for example, in terms of age, disability and gender.

3. United Nations bodies that monitor the implementation of treaties prohibiting discrimination on specific grounds have identified the limitations of focusing on a single ground of discrimination. For example, in its General Recommendation No. XXV on gender-related dimensions of racial discrimination, the Committee on the Elimination of Racial Discrimination has stated

4. Discrimination on multiple grounds is related to the notion of intersectional discrimination. Intersectionality refers to the way that prohibited grounds of discrimination may intersect with and shape each other, entwining systems of domination and oppression. The Committee on the Elimination of Discrimination against Women has explained the idea of intersectionality as

5. A multiple or intersectional approach sheds light on the complexity of discrimination in this case: discrimination may be experienced differently by differently situated individuals sharing a Palestinian identity. Such a multidimensional account of discrimination acknowledges “the composite nature of the sources of discrimination and the synergy of their effects”Footnote ³. It thus unsettles the idea that there can be a single comparator group. While discrimination on the basis of a single prohibited ground makes identification of a comparator group relatively straightforward, discrimination occurring at the intersection of two or more grounds renders comparison with another group more difficult.

6. Material before the Court indicates the existence of discrimination on multiple and potentially intersecting grounds. For example, when discussing Israel's settlement policy, the Court notes that Israel's control of water resources in the West Bank prioritizes water supply to Israeli settlements, at the expense of Palestinian communities (Advisory Opinion, paragraphs 128-129). It does not make the additional observation, however, that water shortages in some Palestinian communities have a particular effect on Palestinian women and girls, because they have additional needs of water for hygiene and privacy. Moreover, they bear responsibility for securing water for household useFootnote ⁴. The Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel has further noted that the decline of the agricultural sector as a result of Israel's policies has disproportionately affected employment opportunities for Palestinian womenFootnote ⁵. The Commission has concluded overall that Israel's policies and practices in the Occupied Palestinian Territory have had a pervasive discriminatory effect on Palestinian women by exacerbating their economic and social vulnerabilityFootnote ⁶.

7. The Court also records the discriminatory effect of the residence permit system in East Jerusalem on Palestinians generally (Advisory Opinion, paragraph 195). The Court finds that the system differentiates between Palestinians and settlers with respect to the enjoyment of the right to family life. It further observes that Palestinian women, who often rely on male spouses for their residence status, are particularly affected by the residence permit system. But the Court leaves unstated one manifestation of this disparate effect that is well documented in the sources on which the Court relies: Palestinian women may remain in violent or abusive marriages out of fear of deportation or separation from their childrenFootnote ⁷.

8. These situations indicate how being both Palestinian and female in the Occupied Palestinian Territory may interact to cause serious disadvantage. As in almost all societies, Palestinian women and men have different experiences of public and private life, although the boundaries between these realms are not fixed and are inevitably shaped by the occupation and its repercussions. Gender dynamics typically result in men being more in the public domain and women being assigned primary responsibilities for care for children and the elderly, and the home. Against this background, United Nations reports have documented that policies and practices of Israel in the Occupied Palestinian Territory, some of which are discussed in the Advisory Opinion, disproportionately affect women and girlsFootnote ⁸.

9. Israel's policies and practices have a similarly marked effect in relation to children. For example, under Israel's residence permit system, residence permits are not automatically passed on to childrenFootnote ⁹, and the parents' residence permits are frequently revoked for the reasons identified in the Advisory Opinion (Advisory Opinion, paragraph 193). While the Court points out the adverse effect that this policy has on the reunification of families whose members reside in different parts of the Occupied Palestinian Territory (Advisory Opinion, paragraph 195), it does not mention that it prevents thousands of children from living with both of their parentsFootnote ¹⁰. Similarly, the effects of Israel's practice of property demolition are felt particularly by children, as the Advisory Opinion implies (Advisory Opinion, paragraph 217)Footnote ¹¹.

10. In its Advisory Opinion, the Court has only examined legislation and measures that it considers to be “closely linked” to Israel's policies and practices of settlement and annexation (Advisory Opinion, paragraph 181). When analysing the effect of these measures on Palestinians, the Court has treated Palestinians as a group sharing a common race, religion or ethnic origin (Advisory Opinion, paragraph 223). While this is correct, this focus overshadows other types of discrimination that affect the daily lives of Palestinians.

II. The legality of Israel's effective control of the Occupied Palestinian Territory

11. In question (b), the General Assembly requests the Court's opinion on the effect, if any, of Israel's policies and practices on “the legal status of the occupation”. This expression is confusing, because occupation itself is a status: it is a state of affairs that consists in the exercise by a State of effective control over foreign territory, and to which international law attaches a series of specific rules (Advisory Opinion, paragraph 90). So, as the Court observes, the General Assembly's enquiry about the “legal status” of Israel's occupation is an enquiry about the character of Israel's occupation as legal or illegal under international law. In other words, it is an enquiry as to whether Israel's effective control of — its presence in — the Occupied Palestinian Territory has a valid legal basis or not (Advisory Opinion, paragraph 82).

12. While I support the Court's overall reply to this question, I think that the Court should have explained more fully the reasoning leading to the conclusion that Israel's effective control of the Occupied Palestinian Territory lacks a legal basis.

13. The Advisory Opinion reminds us that the legality of Israel's effective control of the Occupied Palestinian Territory must be assessed with reference to the rules concerning the use of force (Advisory Opinion, paragraph 251). The Opinion does not however fully articulate the grounds for, or the implications of, this point.

14. The state of occupation triggers the applicability of a specific body of rules — the law of occupation (see Advisory Opinion, paragraphs 85 and 96). It does not follow, however, that the applicability of other rules is suspended. As the Court observes in a different context, international human rights law remains applicable in situations of occupation (Advisory Opinion, paragraph 99). The same is true for the right to self-determination (Advisory Opinion, paragraph 95).

15. More importantly, the establishment of the occupation does not suspend the applicability of the rules concerning the use of force. Therefore, the occupying Power is not absolved of the obligation to uphold the prohibition on the use of force at all times (Advisory Opinion, paragraph 109). Indeed, the rules concerning the use of force are particularly relevant in situations of occupation, in view of the nature of an occupation. Occupation consists in the exercise by a State of effective control over foreign territory in the place of the local government (Advisory Opinion, paragraph 90). The establishment and maintenance of such effective control is made possible because the occupying Power deploys, and remains capable of deploying, its military presence in the occupied territory: it is authority backed by armed force — whether actual or threatened force. In other words, an occupation involves, by its very nature, a continued threat or use of force in foreign territory. For this reason, the occupation must at all times be based on a ground for the use of force that is accepted under the jus ad bellum.

16. The other side of this coin is that no other legal bases may be invoked for an occupation except for those that are available for the use of force under the jus ad bellum. The establishment of the occupation is a question of fact and, for this reason, it does not furnish the occupying Power with an additional legal basis for its maintenance beyond the established exceptions to the prohibition of the use of force. So, the existence of “security concerns” is not a legal ground for the maintenance of an occupation, nor indeed for its establishment, unless it can be translated into the currency of the accepted grounds for the use of force — for example, self-defenceFootnote ¹².

17. Moreover, because the rules concerning the use of force remain applicable throughout the occupation, it is neither necessary nor sufficient to determine whether the use of force that brought about the occupation was lawful. What matters is whether the legal basis for the use of force — in the present context, the legal basis for the occupation — is valid today. Therefore, I support the decision not to determine whether Israel's use of force in 1967 had a legal basis at the time, because it is unnecessary. With this in mind, I will examine the possible legal bases for Israel's continued threat or use of force, in the form of the occupation of the Occupied Palestinian Territory, taking account of Israel's policies and practices.

18. Israel's effective control of the Occupied Palestinian Territory is not based on enforcement action authorized by the Security Council under Chapter VII of the Charter of the United Nations. Starting from Security Council resolution 242 of 22 November 1967, several resolutions of the Security Council depart from the factual premise that Israel occupies the Occupied Palestinian TerritoryFootnote ¹³. However, there is nothing in these resolutions to suggest that they were adopted under Chapter VII and thus as sanctioning enforcement measures by Israel to maintain or restore international peace and security.

19. Nor is Israel's effective control of the Occupied Palestinian Territory sanctioned by the Oslo Accords concluded between Israel and Palestine. The Oslo Accords were directed at the allocation of power between Israel and the institutions established and recognized in the Accords; they were intended to complement the applicable jus in bello régime (see, to that effect, Advisory Opinion, paragraph 102). However, the Oslo Accords are silent as to the grounds on which the occupation came about, or indeed the grounds on which it would cease. Instead, they record that the contracting parties' rights, claims and positions on these issues are preservedFootnote ¹⁴.

20. This leaves a single possibility: that Israel's occupation constitutes use of force in exercise of the right to self-defence under Article 51 of the Charter of the United Nations and under customary international law. Use of force in self-defence presupposes that “an armed attack occurs” against Israel, and that Israel's continued effective control of the Occupied Palestinian Territory is a necessary and proportionate response to such an armed attack.

21. The application of the right to self-defence in the present situation may raise a series of additional legal questions, including whether the right is applicable in the face of attacks that are not attributable to a foreign State or of attacks that originate within the territory under occupationFootnote ¹⁵. But I do not think that it is necessary to grapple with these issues here. I will thus assume that there is no legal rule barring Israel outright from occupying the Occupied Palestinian Territory in response to attacks against it.

22. The submissions of some participants, including Israel, as well as some documents submitted under Practice Direction XII, allude to the security threats faced by Israel. It is regrettable that the Court was not furnished with adequate information about such threats. In any event, the concept of a security threat is broader than the concept of an armed attackFootnote ¹⁶. So, while security threats to Israel may well be real, they alone do not suffice to justify the use of force, unless they amount to an armed attack (see paragraph 16 above).

23. In this connection, it is worth recalling that, under customary international law, the population in the occupied territory does not owe allegiance to the occupying PowerFootnote ¹⁷, and that it is not precluded from using force in accordance with international law to resist the occupationFootnote ¹⁸. Therefore, the fact that the population in the Occupied Palestinian Territory resorts to force to resist the occupation does not in itself justify the maintenance by Israel of its occupation. Further, the continuation of Israel's effective control in the Occupied Palestinian Territory cannot be justified with reference to policies and practices that the Advisory Opinion considers to be in breach of international law — for instance, the maintenance of settlements.

24. On the assumption that Israel is the victim of an armed attack triggering the right to self-defence, does Israel's use of force — in the form of its continued occupation of the Occupied Palestinian Territory — fit within the “strict confines”Footnote ¹⁹ of the right to self-defence? In this regard, it is important to bear in mind the purpose of self-defence: namely, to halt or repel an armed attack until the Security Council takes action. The use of force in self-defence, then, is directed at restoring the situation as it was prior to the armed attack. This purpose distinguishes lawful self-defence from measures that aim to punish the aggressor for the harm inflicted. The latter measures constitute armed reprisals, which are prohibited under international lawFootnote ²⁰.

25. The legal standards of necessity and proportionality are well established in customary international law and are recognized in the Court's jurisprudence as the tools ensuring that forcible measures stay within the scope of the right to self-defenceFootnote ²¹. Necessity and proportionality are concepts sufficiently malleable to account for an infinite variety of situations, including situations that are said to involve the accumulation of a series of events which, taken together, might constitute an armed attack. These legal standards can be assessed objectively and independently of the subjective appreciation of the State purporting to act in self-defenceFootnote ²². For this reason, the standards of necessity and proportionality are well suited to assess whether the use of force employed by the victim of an armed attack serves the purpose of self-defence. In my view, three dimensions of Israel's policies and practices illustrate that the maintenance by Israel of its occupation does not qualify as an act of self-defence: their intensity, their territorial scope and their temporal scope.

26. The intensity, or the character, of Israel's effective control features in the Advisory Opinion. The Advisory Opinion observes that Israel has used the fact that it exercises effective control over the Occupied Palestinian Territory as an opportunity to assert permanent control over it (Advisory Opinion, paragraph 261). As the Advisory Opinion discusses in detail, Israel has engaged in the annexation of large parts of the Occupied Palestinian Territory, and it has taken steps to annex the entire West Bank (Advisory Opinion, paragraphs 162-173). This conduct violates the prohibition of forcible acquisition of territory (Advisory Opinion, paragraph 179). In addition to this, however, such conduct belies the proposition that Israel's effective control of the Occupied Palestinian Territory is a permissible use of force in self-defence. The assertion of permanent control over foreign territory is incompatible with the aim of preserving a State's territorial integrity, which is one of the key justifications for the right to self-defence. Rather than preserving the integrity of its territory, a State using force to annex foreign territory seeks to expand it at the expense of the local government. Moreover, the requirements of necessity and proportionality point to temporary forcible measures that are tailored to the specific threat posed by the armed attack. Where the armed attack is ongoing, the requirements of necessity and proportionality call for the imposition of forcible measures that may be adapted to the evolving nature of the attack and that remain under constant review in light of the circumstances. By contrast, the annexation of territory is, by its nature, intended to be permanent. When using force to annex foreign territory, then, the occupying Power anticipates that the armed attack to which its force responds will itself be permanent — that it will continue to occur in perpetuity.

27. The territorial and temporal scope of Israel's occupation also undermines the proposition that this occupation is justified on grounds of self-defence. As the Advisory Opinion points out, Israel has extended its effective control over the whole Occupied Palestinian Territory — the entirety of the territory in which the right of the Palestinian people to self-determination is exercised (Advisory Opinion, paragraph 262). Further, Israel has kept the Occupied Palestinian Territory under its control for over 57 years. Of course, international law does not, and could not, set categorical territorial and temporal limits to the use of force in self-defence, including in the form of occupation. Such limits are determined on a case-by-case basis by the requirements of necessity and proportionality. Under those requirements, targeted operations, including occupation, may be expected in the territory from which the armed attack originates, and for as long as the armed attack occurs. Yet, the longer time passes, the less plausible it is that an armed attack is, or indeed continues to be, occurring; and the less plausible it is that the continued occupation of an entire foreign territory is a necessary and proportionate measure in response under the right to self-defence. This is especially the case where this occupation extends to the entire territory over which a population exercises its right to self-determination.

28. For these reasons, I consider that Israel's continued effective control of the Occupied Palestinian Territory lacks a valid legal basis. Of course, Israel, as all States, has the inherent right to self-defence against armed attacks that occur against it. However, today and in the future, Israel's acts in self-defence must be exercised within the confines of international law, and especially in accordance with the requirements of necessity and proportionality — as is the case for all States.

(Signed)  Hilary CHARLESWORTH.

I. The statehood of Palestine

4. The Advisory Opinion should have been explicit with regard to the statehood of Palestine. In United Nations resolutions it is customary to state that the settlement of the conflict lies in “the two-State solution” or “the two-State solution of Israel and Palestine, living side by side in peace and security within recognized borders” (see, for example, A/RES/78/78Footnote ¹ and S/RES/2735 (2024)Footnote ²). Yet the use of such language or of that adopted by the Court in its Opinion — namely “including [the] right [of the Palestinian people] to an independent and sovereign State, living side by side in peace with the State of Israel within secure and recognized borders for both States” (paragraph 283) — appears to cast doubt on the existence of Palestine as a State today, as if that State had to be created or formed in a future that is at the very least uncertain, further to negotiations aimed at a just and lasting peace in the Israeli-Palestinian conflict. This kind of language contributes to making the situation of one of the parties (Palestine) even more unequal in relation to the other (Israel), and from the outset distorts the parameters of the negotiations that will have to take place between them. However, just as the existence of Palestine should no longer be in question, nor should there be any further discussion about the legal personality of Palestine, as the State with which Israel will have to have amicable and neighbourly relations. The ambiguity inherent in the words “its right to an independent and sovereign State” is a further obstacle to the full implementation of the right of the Palestinian people to self-determination, in that it contributes indirectly to the position that the proclamation of the State of Israel on 14 May 1948 was somehow made in respect of territory belonging to no one or terra nullius Footnote ³, since the Arab States had refused the United Nations Partition Plan in General Assembly resolution 181 (II) of 1947, and the rights of the United Kingdom as a mandatory Power had ceased on 15 May 1948, the date its High Commissioner left, marking the end of the British Mandate over PalestineFootnote ⁴. Is it necessary to recall that, during that Mandate, Palestine had a government, police, a currency and laws that came from a “constitutional” framework dating back to 1922, even if it fell to the United Kingdom to promulgate all such provisions?

5. This current of opinion, which holds sway in Israel today by virtue of political parties that represent extremist religious positions, would have it that the practice of settling large swathes of the Occupied Palestinian Territory is justified quite simply by the divine plan of land promised to Abraham and his descendants, to the extent that since 1967 the West Bank has not been referred to by its name as such, but, on the contrary, by the biblical place names of Judea and Samaria.

6. It could of course be argued that Palestine's status as a State is implicit in the many resolutions of the General Assembly and the Security Council, since they recommend that the settlement of the conflict should be based on the existence of “two States”.

Yet Israel has done and continues to do everything in its power to set aside the commitments it made under the 1947 Partition Plan — on which its declaration of independence was based — and the 1993 and 1995 Oslo Accords. The peace process cannot be the same when the occupying Power does not accept the legal personality of Palestine, claims that the Fourth Geneva Convention does not apply to the Occupied Palestinian Territory and, moreover, contests that the territory is occupied. This attempt to make Palestine invisible, to the extent that its existence is denied, is, in my view, a further impediment to the right of the Palestinian people to self-determination. Worse still, this form of denial clearly echoes the arguments of the protagonists in the conquest of the Americas in the 16th century, arguments that were defeated at the time by the renowned Francisco de Vitoria, who refused to accept that the new continent could be considered as a res nullius on the ground that it was inhabited by people without civilizationFootnote ⁵. For both Vitoria and Bartolomé de Las Casas, the indigenous populations were the real owners of the lands coveted by the SpanishFootnote ⁶.

It would therefore have been helpful if the Court had expressly stated that the existence of the Palestinian State is established under international law, just as it did in respect of the Palestinian people when it observed that its existence “is no longer in issue” and that “[s]uch existence has moreover been recognized by Israel in the exchange of letters of 9 September 1993 between Mr. Yasser Arafat, President of the Palestine Liberation Organization (PLO) and Mr. Yitzhak Rabin, Israeli Prime Minister” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 182-183, para. 118)Footnote ⁷. Let us not forget that the Palestinian Authority was able to establish itself in Gaza pursuant to the above-mentioned Oslo Accords and that the takeover of this territory by Hamas in June 2007 is an issue that is internal to Palestine and did not entail any cession of sovereignty, since Israel had moreover withdrawn from this part of the Occupied Palestinian Territory in 2005 while retaining effective control over it (paragraphs 93 and 94). The foregoing cannot be understood as meaning that the right of the Palestinian people to self-determination has been fully achieved. As the Court has observed, that right has been, and continues to be, violated by Israel. However, stating that that right includes the right to a sovereign and independent State has the effect of reducing it, at the very best, to a right in statu nascendi (see paragraphs 237 and 283).

7. In this regard, it may be noted that the statehood of Palestine, whose existence was proclaimed on 15 November 1988 by the Palestine National Council based on resolution 181 (II) referred to aboveFootnote ⁸, is a reality for the vast majority of States, since it is acknowledged by the General Assembly in resolution 43/177 of 15 December 1988. In 2012, by resolution 67/19, the General Assembly granted Palestine the status of non-member observer State at the United Nations, while the Palestinian Authority, as the representative of the Palestinian people, has exercised its authority in certain parts of Palestinian territory since 1993.

8. More recently, on 1 May 2024 the General Assembly, pursuant to resolution 76/262Footnote ⁹, debated the veto cast by the United States in the Security Council on 18 April 2024 which, despite the support of 12 members and the abstention of the United Kingdom and Switzerland, prevented the adoption of draft resolution S/2024/312 submitted by Algeria recommending the admission of the State of Palestine to the United Nations. During the debate, the United States declared that the vote at issue did not reflect opposition to Palestinian statehood but was an acknowledgment that it can only come from negotiations between the two parties (see General Assembly, debate on the United States veto of the draft resolution submitted by Algeria on the admission of the State of Palestine to the United Nations, seventy-eighth session, 74th and 75th plenary meetings). It is to be recalled that the Court ruled on this question in its Advisory Opinion on the Conditions of Admission of a State to Membership in the United Nations under Article 4 of the Charter, in which it found that

9. This Opinion was implemented by the General Assembly, which adopted resolution 506 (VI) entitled “Admission of new Members, including the right of candidate States to present proof of the conditions required under Article 4 of the Charter”, dated 1 February 1952, and in which it establishes that the judgment of the United Nations on the admission of a State

and not on any other condition (A/RES/506 (VI) A). Palestine fully meets these conditions.

10. Following the failure to adopt the above-mentioned draft resolution S/2024/312, on 10 May 2024 the General Assembly adopted resolution ES-10/23 with 143 votes in favour, that is two thirds of Member States. Under this resolution, the General Assembly decides to extend the rights of Palestine as an observer State and stresses “its conviction that the State of Palestine is fully qualified for membership in the United Nations in accordance with Article 4 of the Charter”.

11. The International Criminal Court (ICC), for its part, was invited by the Prosecutor to pronounce on the scope of its territorial jurisdiction in Palestine, further to Palestine's decision of 22 May 2018 to defer the situation there to it, the Palestinian State having acceded to the Rome Statute on 2 January 2015. In its decision of 5 February 2021, Pre-Trial Chamber I considered that the ICC could exercise its criminal jurisdiction over the situation in question and found that its territorial jurisdiction extended to Gaza and the West Bank, including East JerusalemFootnote ¹⁰. While it is true that the ICC was careful to note that its mandate did not permit it to pronounce on the statehood of Palestine, this decision nonetheless confirms that Palestine cannot be treated otherwise than as a State under international law.

12. The foregoing all serves to reinforce the idea that Palestine is a State entity capable of carrying out the obligations contained in the Charter. It should be noted in this regard that the history of the United Nations shows that Members can be admitted even though their status as a State remains to be fully realized, as was the case with IndiaFootnote ¹¹. For a very long time, there were doubts as to whether a particular micro-State met all the criteria to be identified as a State under international law and, consequently, whether that State could be admitted to the United Nations, on account of it having an extremely small territorial base and the exercise of important sovereign powers being devolved to another StateFootnote ¹². Ultimately, all those that have applied have been admitted to the United Nations.

13. As stated above, I am convinced that Palestine must be considered a State under international law. Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, which has been in force since 26 December 1934, provides that “[t]he state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states”. The question of Palestine's lack of effective control over the entirety of Palestinian territory in no way detracts from the fact that Palestine meets the criteria to be identified as a State, as defined in the Montevideo Convention. A State's lack of control over part of its territory has no direct impact on its statehood. The late James Crawford appears to acknowledge that after 1993, under the Oslo Accords, and with all the well-known limitations, there was some transfer of territorial control to the Palestinian Authority in so-called Areas A and B of the West BankFootnote ¹³. He contends, moreover, that there is no rule of international law prescribing a minimum area of territory for a StateFootnote ¹⁴. A State can exist even when another State claims its territory, and it does not vanish when it loses control over part of its territoryFootnote ¹⁵. The existence of the Palestinian State should not be called into question, and neither should the possibility for it to be admitted as a full Member State of the United Nations. The distinguished Australian jurist concludes his analysis with what is, to my mind, a very pertinent reflection, from which the Court should have drawn inspiration:

14. Furthermore, it should be recalled that the existence of a State does not depend on recognition by other States or by any international organization. The recognition of a State by another has only a declaratory effect. It does not constitute the State, it does not create it but “merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law” (Article 6 of the above-mentioned Montevideo Convention). Article 13 of the Charter of the Organization of American States, for its part, confirms the declaratory nature of recognition when it provides that “[t]he political existence of the State is independent of recognition by other States”. This belief is not limited to regional international law and academia. As new States were beginning to emerge in the wake of decolonization, Professor Marcel Sibert stated that

15. Recognition can nevertheless reinforce the legitimacy of a State and its capacity to take action at the international level, which is not insignificant, as is the case for Palestine. Indeed, the majority of States (149 to date) have already unilaterally recognized Palestine as a State. Furthermore, Palestine has bilateral relations with more than 140 States and is party to some hundred multilateral conventions. I therefore do not understand the Court's excessive caution in this regard.

16. However, the question that should have been developed by the Court is that of the consolidation and viability of the State of Palestine. The Advisory Opinion could have taken the current situation into account by recognizing that what is important now is to consolidate the State of Palestine and make it viable, including by settling through negotiations the question of boundaries, the sharing of natural resources, the return of refugees and reparation for wrongful acts committed by Israel, but without using ambiguous language that casts doubt over the existence, under international law, of the State of Palestine.

17. To conclude, the Court should have seized the opportunity presented to it by this Advisory Opinion to make a definitive pronouncement on the statehood of Palestine. Such a declaration would have rendered the Advisory Opinion fully effective, for the purpose of launching negotiations between two States, on an equal footing, under the best possible conditions and without any possibility of questioning whether, despite a prolonged occupation that has led to the annexation of large swathes of Palestinian territory, Palestine, as a full subject of international law, is an established fact that should be beyond legal doubt.

II. The right to self-determination as a jus cogens norm

18. The Court considered that “in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law” (paragraph 233). This right derives from the United Nations Charter (Article 1, paragraph 2, and Articles 55 and 56, which provide for the development of international relations based on respect for human rights and self- determination). It was developed in General Assembly resolution 1514 (XV) and in principle VII of resolution 1541 (XV) on decolonization, both dating back to 1960. General Assembly resolution 2621 (XXV) of 1970 declares that “the further continuation of colonialism in all its forms and manifestations [is] a crime which constitutes a violation of the Charter of the United Nations, the Declaration on the Granting of Independence to Colonial Countries and Peoples and the principles of international law” (A/RES/2621 (XXV)). For its part, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, which is annexed to General Assembly resolution 2625 (XXV) of 1970, stresses the importance of the right to self-determination as a fundamental principle of international law.

19. The right of peoples to self-determination thus emanates, to a very great extent, from the universal parliament that is the United Nations General Assembly. In this context, I think it is worth recalling the still very pertinent question of the legal value of United Nations resolutions. The great Mexican jurist Jorge Castañeda tells us that:

20. Antonio Gómez Robledo, for his part, adopting the concept of the duality of functions dear to Georges Scelle, points out that the General Assembly, in the form of a resolution that stricto sensu has the status of a recommendation, gives rise to a source of international law as authentic as that of custom, and which, given the extraordinary speed of modern means of communication, does not have to conform to the old, slow pace of traditional custom. On that basis, he questions how there can be any doubt that the right to self-determination emanates from an authentic source of international law, when it is the legal conscience of mankind that recognizes and proclaims itFootnote ¹⁹.

Concerning the identification of jus cogens norms, Antonio Gómez Robledo also tells us the following:

21. The Court has previously declared that the right of peoples to self-determination is a fundamental right that creates an obligation which, by its very nature, concerns all States and therefore has an erga omnes character (see East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 199, para. 155 and Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 139, para. 180). It reiterates this once again in the present proceedings, and also refers to the prohibition of the acquisition of territory by force and certain obligations incumbent on Israel under international humanitarian law and human rights law as obligations erga omnes (paragraph 274).

22. Although, in the past, the Court has not expressly characterized the right to self- determination as jus cogens, that characterization could already be inferred from the legal consequences repeatedly identified by the Court as a result of its violation, such as the obligation not to recognize or render aid or assistance in maintaining the illegal situation and to co-operate to bring it to an end (see, for example, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 200, para. 159 and Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 139, paras. 180 and 182). The Court has established these consequences in the present proceedings, linking them to the nature and importance of the rights and obligations at issue, which require all States “not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory” and “not to render aid or assistance in maintaining the situation created by Israel's illegal presence” (paragraph 279, see also paragraph 275). It is, however, regrettable that the Court has not directly established the link between the finding that the right to self-determination has the status of a peremptory norm and the consequences of its violation.

23. In this regard, the consequences identified by the Court arising from violations of the right to self-determination, considered in the light of obligations erga omnes, are in line with the provisions of Article 41, paragraphs 1 and 2, of the Articles on the Responsibility of States for Internationally Wrongful ActsFootnote ²¹.

24. In this context, it may be recalled that, in conclusion 19 of its Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of General International Law (jus cogens), the International Law Commission (hereinafter the “ILC”) addressed the specific consequences of serious violations of peremptory norms of general international law (jus cogens), namely the obligation to co-operate, the obligation not to recognize and not to render aid or assistance in maintaining a situation created by a serious breach of those normsFootnote ²². The ILC also recognized the peremptory nature of the right to self-determination by including it in its non-exhaustive list of peremptory norms of general international law in the annex to conclusion 23 of its above-mentioned Draft ConclusionsFootnote ²³.

25. It is precisely the legal consequences of the violation of the right to self-determination that argue in favour of that right being recognized as a hierarchically higher norm, rather than the fact that these are obligations erga omnes which give rise to standing but do not, as such, create peremptory norms. That is why the Court takes a fundamental step forward in this Advisory Opinion, even though it still appears to hold back to some extent in this regard.

26. More broadly, the dictum of the Court proceeds from an observation on the “centrality” of the right of self-determination in international law. It should be noted that the reference to a situation of foreign occupation (paragraph 233) has the merit of referring the question to the very core of the Declaration on the Granting of Independence to Colonial Countries and Peoples (resolution 1514 (XV)), which declares that “[t]he subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co- operation”. Thus, a prolonged foreign occupation, such as the one under consideration in these proceedings, becomes alien domination within the meaning of resolution 1514 (XV) and therefore justifies the right to self-determination being elevated to the level of a peremptory norm in international law.

27. Furthermore, the Court has long recognized that norms such as the prohibition of genocide and torture are jus cogens (see Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 32, para. 64 and p. 52, para. 125; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 111, para. 161; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 47, para. 87; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 457, para. 99. See also Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012 (I), p. 140, para. 93, where the Court addresses the relationship between jus cogens and rule of State immunity).

28. In conclusion, by attaching all the consequences of a violation of a peremptory norm of general international law (jus cogens) to Israel's multiple and ongoing violations of the right of the Palestinian people to self-determination, the Court unambiguously places itself on the side of

Thus, the Court gives the primacy of the right to self-determination its full import and weight in the hierarchy of the fundamental rights and duties that structure the contemporary international order. This is of prime importance and should be recalled at all times and in all places to all people.

The Court also confers on the right of peoples to self-determination its full axiological nature, as a concept that reflects and, at the same time, inspires a world view.

(Signed)  Juan Manuel GÓMEZ ROBLEDO.

I. The question of Gaza

7. The situation in the Gaza Strip has been tragic for decades and, as the Court has observed, is now “catastrophic” and “disastrous” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Order of 24 May 2024, para. 28). It is unclear, however, what legal and practical conclusions can be drawn from the Court's Opinion regarding Israel's long-standing conduct toward the Gaza Strip. The circumstances of the current armed conflict in the Gaza Strip are not before the Court in this Advisory Opinion, and the temporal scope of the Opinion established by the Court makes the application of the Court's conclusions to Gaza difficult. In my view, the Court also does not substantiate its conclusion that the unlawfulness of Israel's presence, and the concomitant duty to withdraw, apply to the current situation in the Gaza Strip.

8. On the other hand, the Court could, and should, have addressed other questions regarding Israel's responsibilities and the legality of Israel's policies and practices with respect to the Gaza Strip which existed before 7 October 2023 and which are ongoing. I address some of these below.

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9. With respect to the temporal scope of the Advisory Opinion, the Court significantly states that “the policies and practices contemplated by the request of the General Assembly do not include conduct by Israel in the Gaza Strip in response to the attack carried out against it by Hamas and other armed groups on 7 October 2023” (Advisory Opinion, para. 81). The Court then underscores this important temporal limitation on the Opinion just before providing its reply to the General Assembly's request, reiterating that its reply “rests on the totality of the legal grounds set forth by the Court above, each of which is to be read in the light of the others, taking into account the framing by the Court of the material, territorial and temporal scope of the questions (paragraphs 72 to 83)” (ibid., para. 284). This clarifies, at a minimum, that the Opinion does not address Israel's response to the 7 October 2023 attack and the resulting devastating situation in Gaza. Nor does it address how the current conflict may affect the legality of Israel's pre-existing and continuing military engagement with the Gaza Strip.

10. Otherwise the Opinion says very little about Gaza. In identifying the applicable law in paragraphs 88 to 94, the Court observes that after its withdrawal in 2005, Israel continued to exercise certain key elements of authority with respect to the Gaza Strip, including “control of the land, sea and air borders, restrictions on movement of people and goods, collection of import and export taxes, and military control over the buffer zone” (para. 93). In this regard, it concludes that aspects of the law of occupation continued to apply with respect to the Gaza Strip, commensurate with Israel's degree of effective control (para. 94). However, the Court does not identify which obligations continued to bind Israel after 2005, nor does it find any violations of such obligations. In fact, the Court's determination that the law of occupation continued to apply with respect to the Gaza Strip plays no subsequent role in the Court's analysis.

11. The Court's failure to identify what responsibilities Israel retained under the law of occupation in relation to Gaza, and its failure to draw any conclusions therefrom, leaves the status of Gaza in this period, and Israel's corresponding obligations, in a state of great uncertainty.

12. The Court's detailed discussion of Israel's settlement policies and annexation of parts of the Occupied Palestinian Territory does not address Gaza (Advisory Opinion, paras. 111-179). The Court's analysis of “related discriminatory legislation and measures” notes restrictions on movement between Gaza, the West Bank and East Jerusalem (ibid., paras. 202-203) but makes no specific finding of discrimination with respect to Israel's policies and practices regarding Gaza. The Court's finding of a violation of Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination is expressly limited to Israel's policies and practices in East Jerusalem and the West Bank (ibid., para. 226).

13. By contrast, the Court's consideration of the right to self-determination unquestionably applies to all Palestinians in the Occupied Palestinian Territory, including in the Gaza Strip. The Palestinian people constitute a people (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 182-183, para. 118), and the Occupied Palestinian Territory “constitutes a single territorial unit, the unity, contiguity and integrity of which are to be preserved and respected” (Advisory Opinion, para. 78). As the Court affirms, as part of its right to self-determination, the Palestinian people has the right to the integrity of its territory and population, to permanent sovereignty over its natural resources and to freely determine its political status and to pursue its economic, social and cultural development across the Occupied Palestinian Territory (ibid., paras. 238-241). Thus, violations of the right to self-determination that result from Israel's unlawful conduct necessarily obstruct the enjoyment of this right throughout the Occupied Palestinian Territory, regardless where in the territory Israel's policies and practices took place.

14. Most notably, Gaza is absent from the key findings underlying the Court's conclusion that Israel's presence in the Occupied Palestinian Territory is unlawful. As the Court makes clear, it is the violation of the rules regarding the use of force, the jus ad bellum, that makes the presence of an occupying Power unlawful (Advisory Opinion, paras. 251 and 253; see also joint declaration of Judges Nolte and Cleveland, para. 7). Instrumentalizing an occupation to achieve the acquisition of territory, as Israel has done in East Jerusalem and the West Bank, renders such presence unlawful, irrespective of any self-defence justification a State may have (joint declaration of Judges Nolte and Cleveland, para. 8).

15. None of the circumstances that lead the Court to conclude that Israel's presence violates the rules regarding the use of force apply to the Gaza Strip, however. The Court does not find that Israel has expanded settlements and related infrastructure in the Gaza Strip. Indeed, Israel evacuated its settlements from Gaza in 2005 (Advisory Opinion, paras. 68 and 114). The Court does not suggest that Israel has annexed, or has sought to annex, the Gaza Strip. Nor does it contend that Israel otherwise violated the prohibition on the use of force between 2005 and 2023 with respect to Gaza. Thus, the core conclusion of the Court — that Israel's policies and practices as an occupying Power violate the prohibition of the acquisition of territory by force, and thus exclude any justification of self-defence — is not applied to Gaza.

16. The Court nevertheless attempts, in the space of a single paragraph, to bring Gaza within its conclusion that Israel's presence in the “entirety” of the Occupied Palestinian Territory is unlawful, based on the integrity of the Occupied Palestinian Territory (Advisory Opinion, para. 262).

17. However, this solitary paragraph does not explain how a violation of the right to self-determination — in the absence of a violation of the prohibition of acquiring territory by force — renders an occupying Power's presence unlawful. Nor does it explain how such a violation can somehow override any legitimate exercise of the right to self-defence that Israel may have with respect to the Gaza Strip. As the Court's own examination of the question whether the Gaza Strip remained occupied after 2005 demonstrates, the question whether an occupation exists requires a separate analysis of the circumstances with respect to a specific region or territory (Advisory Opinion, paras. 88-94; see also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, pp. 230-231, paras. 174-178). The legality of a State's military presence in foreign territory likewise requires separate analyses if different circumstances prevail in different regions. It is not determined by a principle of territorial unity. Thus, a use of force that is lawful in one part of a territory may not be lawful in another.

18. Some information before the Court may suggest that Israel has sought to exercise permanent control over the entire Occupied Palestinian Territory, including the Gaza Strip, in order to facilitate the progressive annexation of parts of the territory and the alteration of its demographic character, and to obstruct the right to a Palestinian State. The Court, however, does not make such a determination. It does not conclude that Israel is trying to permanently control the Occupied Palestinian Territory as a whole, or the Gaza Strip. It simply does not address the question. In the absence of such a finding, a determination that Israel's presence in relation to the Gaza Strip violated the jus ad bellum would have required a finding that Israel's military presence pertaining to the Gaza Strip prior to 7 October 2023 lacked any legitimate self-defence justification. This would have required the Court to grapple with legal and factual considerations regarding the scope of Israel's legitimate right to use force to protect its territory and its people, which the Court does not remotely purport to confront (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 195, para. 141).

19. The temporal limitation imposed by the Court (Advisory Opinion, paras. 81 and 284) also makes very unclear what it means for the Court to say that Israel must withdraw from the Gaza Strip as rapidly as possible, somehow without taking into account the circumstances resulting from Israel's response to the 7 October 2023 attack.

20. There are understandable reasons for the Court's reticence with respect to its consideration of the Gaza Strip. The General Assembly's request of December 2022 asked the Court to examine Israel's policies of, inter alia, “settlement”, “annexation” and “related” discriminatory measures, and their impact on the legal status of the occupation. This framing placed the lens primarily on East Jerusalem and the West Bank, where these policies and practices are in place (resolution 77/247 of 30 December 2022, para. 18). Participants in the advisory proceedings likewise focused their submissions primarily on these parts of the Occupied Palestinian Territory. The situation in the Gaza Strip after 7 October 2023, which emerged after the General Assembly adopted the request, was also difficult for the Court to consider, given that it involves an ongoing armed conflict and is the subject of two sets of contentious proceedings before the Court.

21. Accordingly, for the reasons above and those set forth in my joint declaration with Judge Nolte, I agree with the Court's reply that “the State of Israel's continued presence in the Occupied Palestinian Territory is unlawful” (Advisory Opinion, para. 285 (3)). This is correct with respect to East Jerusalem and the West Bank. However, I disagree that the Court established that this conclusion applies to the “entirety” of the Occupied Palestinian Territory (ibid., para. 262). The combination of the Court's temporal limitation, and its failure to substantiate its jus ad bellum analysis with respect to Gaza, render this particular conclusion of the Court inapplicable to the current situation in the Gaza Strip.

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22. Nevertheless, I believe that, at a minimum, the Court could and should have made clearer certain responsibilities of Israel with respect to the long-standing tragic situation in the Gaza Strip, and it is regrettable that it did not do so.

23. First, as the Court notes, Israel's settlement policy in Gaza prior to 2005 “was not substantially different” from the current policy in East Jerusalem and the West Bank (Advisory Opinion, para. 114). For the reasons stated by the Court, the transfer of the population of an occupying Power into an occupied territory is prohibited under Article 49 of the Fourth Geneva Convention (ibid., paras. 115-119). Thus, any future attempt to resurrect such a settlement policy with respect to the Gaza Strip would constitute a “flagrant violation” of this prohibition (UNSC resolution 465 (1980) of 1 March 1980; see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 183-184, para. 120).

24. Second, with respect to Israel's obligations under the law of occupation regarding Gaza after 2005 (see para. 10 above), it is clear that Israel did not exercise effective control over most of the day-to-day government administration of the Gaza Strip — a responsibility which, after 2007, was under the control of Hamas. Israel, therefore, did not generally possess the effective control necessary, for example, to incur the obligation under Article 43 of the 1907 Hague Regulations to maintain public order within Gaza. Nevertheless, the Court could have found that Israel's control over the sea and air space of the Gaza Strip, as well as land crossings (which it shared in part with Egypt (Advisory Opinion, para. 89)), and its severe restrictions on, for example, imports of food, exports, and activities such as fishing in Gaza's maritime space (contrary to Israel's commitments under the Oslo Accords), brought with it, inter alia, aspects of the duty “to ensur[e] the food and medical supplies of the population” under Article 55 of the Fourth Geneva Convention, as well as the duty to facilitate humanitarian relief under Article 59 of that Convention.

25. The Court could also have considered whether aspects of Israel's restrictions on ingress and egress violated the economic and social rights and other human rights of the Palestinian population in the Gaza Strip. Furthermore, it is always the case that any use of military force that is disproportionate to a legitimate right of self-defence violates the jus ad bellum, and that any use of force that causes disproportionate civilian harm compared to the anticipated military advantage violates the jus in bello.

26. Finally, I believe the Court's Opinion makes clear that it would violate the jus ad bellum for Israel to use its position as an occupying Power to seek to exercise permanent control over the Occupied Palestinian Territory as a whole, including the Gaza Strip. Such use of force also would further compound the violations of the Palestinian people's right to self-determination.

27. All these obligations with respect to Gaza remain ongoing.

II. The concept of annexation

28. It is perhaps unfortunate that the General Assembly framed part of question (a) in terms of “annexation”. International law, in the form of Article 2, paragraph 4, of the UN Charter and of custom, prohibits the “acquisition of territory” through the threat or use of force. The critical question, then, is what constitutes an unlawful “acquisition” of territory that could place the conduct of an occupying Power in violation of this fundamental norm. “Annexation” in this sense can be (mis)understood as involving the assertion of formal sovereignty over a territory or the incorporation of foreign territory into a State's own territory — neither of which is required for a violation of the prohibition of the acquisition of territory by force. The Court at times appears to equate annexation with incorporation, which could suggest an unnecessary restriction on this prohibition (see e.g. paragraph 158 of the Advisory Opinion, defining annexation as “integration into the territory of the occupying Power”; and paragraph 170, stating that “Israel has also taken steps to incorporate the West Bank into its own territory”).

29. While many participants in these proceedings contended that at least part of the Occupied Palestinian Territory has been annexed, few addressed the meaning of this concept. Japan, however, elaborated on the forcible acquisition of territory in its submissions, stating that the principle consists of “the establishment of control over the territory through forcible measures”, coupled with “the intention to appropriate that territory permanently”Footnote ¹. Japan further maintained that this prohibition applies to “any unilateral attempts to change the peacefully established status of territories by force or coercion”.

30. The Court's predominant reasoning is consistent with this approach. The Court makes clear that the essence of the prohibition of the acquisition of territory by force involves the use of force to control a foreign territory, with the intent of exercising permanent control. Thus, the Court observes that annexation “presupposes the intent of the occupying Power to exercise permanent control over the occupied territory” (Advisory Opinion, para. 158; see also paragraphs 159 and 161). It does not restrict “annexation” to the assertion of formal sovereignty or a situation of incorporation. Accordingly, the Court concludes that Israel's policies and practices in large parts of the Occupied Palestinian Territory, notably East Jerusalem and in the West Bank, “are designed to remain in place indefinitely and to create irreversible effects on the ground” (ibid., para. 173). In other words, they are intended to be permanent. Such conduct violates the jus ad bellum prohibition of the acquisition of territory by force.

III. Self-determination as a peremptory norm

31. The Court declares, for the first time, that the right to self-determination is a peremptory norm of international law. In so doing, it states that “in cases of foreign occupation such as the present case the right to self-determination constitutes a peremptory norm” (Advisory Opinion, para. 233). Unfortunately, the Court provides no explanation of what it means by “cases of foreign occupation such as the present case”, or how this formulation relates to the concept of a peremptory norm of international law.

32. The right to self-determination is fundamental. In its full articulation, it is also a broad and indeterminate right, with both external and internal aspects. The external aspect of self-determination has been most extensively elaborated with regard to the right of peoples to be free from alien subjugation and foreign domination in the context of decolonization (General Assembly resolution 1514 (XV) of 14 December 1960, para. 1). It is in this context that self-determination most clearly could be recognized as a peremptory norm.

33. In my view, in referring to “foreign occupation such as the present case”, the Court was focusing on the features of Israel's occupation that are potentially analogous to a situation of foreign domination. These features include a situation of prolonged occupation characterized by annexation through permanent control and the accompanying suppression of self-determination, over a period of decades. Any foreign occupation, by definition, however lawful, will likely involve the temporary denial of aspects of the right to self-determination. Therefore, by using the formulation “foreign occupation such as the present case”, the Court intended to make clear that it is the particular features of Israel's prolonged occupation that analogize it to a situation of alien subjugation and foreign domination which implicate the right to self-determination as a peremptory norm.

34. The Court has recognized for decades that the right to self-determination is a foundational principle of the UN Charter and a fundamental human right, and that it gives rise to obligations erga omnes (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 31-32, para. 55; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 171-172, para. 88, and p. 199, para. 155; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 131, paras. 144, 146, and p. 139, para. 180). The Court also focuses on the erga omnes character of the norm in this case. Indeed, in addressing the legal consequences that flow from Israel's violations of international law, the Court draws upon the character and importance of the obligations at issue as “erga omnes”, not as peremptory norms of international law. It is the erga omnes character of the norms as “the concern of all States” that informs the Court's determination of the responsibilities of States and the United Nations (Advisory Opinion, paras. 274 and 280). I believe that this approach is correct and is consistent with the Court's prior case law.

35. In other words, the Court did not need the pronouncement that self-determination constitutes a peremptory norm of international law for its analysis and did not adopt it for that reason. The Court made the pronouncement because it believed it to be legally correct.

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36. On 7 October 2023, Hamas, the de facto governing authority in the Gaza Strip, together with other armed groups, violently attacked Israel and its citizens. By contrast, the observer State of Palestine took its grievances to the UN General Assembly and to this Court, by way of this request for an advisory opinion. It thereby sought to invoke the assistance of the UN organs in the peaceful resolution of disputes and the maintenance of international peace and security, consistent with the mandate of the UN Charter and this Court, and with the obligations of all Member States of the United Nations.

37. At the close of its Opinion, the Court recognizes that

38. I hope that the Court's Advisory Opinion can be understood to contribute to that worthy goal.

(Signed)  Sarah CLEVELAND.

I. Introduction and context

1. I have voted in favour of all the paragraphs of the operative clauses of the Court's Opinion and, overall, I am pleased with the outcome. Given the collective nature of the Court's decision-making process, the reasoning is not always going to be as clear as it could be, but this should not detract from the overall significance of the Opinion in the continuing search for peace in the Middle East. In this declaration, I wish to address certain salient points in the Advisory Opinion that merit some elucidation.

2. Some may question the main conclusion of the Opinion, namely that the continued presence of Israel in the Occupied Palestinian Territory (“OPT”) is unlawful and, as a consequence, that Israel must terminate its presence. In this context, it may be questioned whether the breaches of international law by Israel necessarily lead to the conclusion that Israel's presence is unlawful and that it must therefore withdraw from the OPT. It is true that the mere fact of violation of certain rules of international law would not always lead to the unlawfulness of the presence itself. What the Opinion illustrates however, is that, the seriousness and magnitude of Israel's violations, as well as the nature of the rules breached, are such as to remove any pretences concerning the purpose of Israel's presence — transforming what may have been lawful presence based on occupation, to unlawful presence because such presence clearly amounts to a manifest violation of fundamental rules of international law prohibiting the acquisition of territory by force and the denial of the right of self-determination.

3. It is not just the fundamental character of the rules breached, or the egregiousness of the breaches, but also the fact that the breaches have continued, and indeed worsened, notwithstanding repeated calls for their cessation from multiple organs and entities that leads to the Court's conclusion. The seriousness and magnitude of the violations, in effect, unrobe the emperor, leaving the truth bare; it reveals that there is nothing about the enterprise in question that justifies it as a temporary occupation. It is simply annexation, which breaches the right of self-determination of the Palestinian people and the prohibition of acquisition of territory by force. Put differently, from the facts presented to the Court, it is clear that Israel has used occupation as a front to cover up its breaches of some of the most fundamental principles of international law. This is what I understand by the Court's reference to “sustained abuse by Israel of its position as an Occupying Power”Footnote ¹. Under these circumstances, any lingering suggestion that Israel's unlawful conduct somehow does not affect the lawfulness of its presence would have the effect of shrouding Israel's presence in the OPT with a cloak of legality — something which I find simply incomprehensible.

4. Many, on the other hand, will praise the Opinion, rightfully so, for confirming the unlawfulness of Israeli presence on the Occupied Palestinian Territory, and the duty on Israel to withdraw from that territory. Yet, this conclusion should hardly come as a surprise given the 2004 Wall Opinion and the terms of the question posed by the General Assembly in Resolution 77/247 which identified particularly important rules, namely the right of self-determination, rules of international human rights law, in particular those prohibiting discrimination, the prohibition of the acquisition of territory by force and the basic rules of international humanitarian law, against which to assess the policies and practices of Israel. As I will go on to expand below, serious violations of these fundamental rules of international law could scarcely have resulted in a different conclusion. With most legal issues there are arguments and counterarguments that pull in different directions, even if there is an objectively correct legal position. The situation in the OPT, however, is one of the few cases in international law in which it is challenging to find legal and political arguments that pull in a direction in opposition to the Palestinian right of self-determination and in favour of the prolonged Israeli occupation of Palestinian territory and the subjugation of the Palestinian people. Even in the course of the current proceedings, States that can be described as “arguing on the side of Israel”, with the exception of two States, namely Zambia and Fiji, took a decidedly procedural stance, arguing on jurisdiction and urging the Court either not to exercise its jurisdiction or to limit its jurisdiction. But given the clear facts and the state of the law, few States appeared willing to argue that the rules and principles referred to in the question put by the General Assembly have not been violated by Israel. The Court's finding that there have been grave and serious violations of the right of self-determination and the prohibition of the acquisition of territory by force, seen in that context, is not surprising or earth-shattering.

5. In this declaration, I wish to address five issues that arose in the context of these advisory proceedings, and which I believe warrant further analysis. First, I am troubled by arguments made by some participants in the course of these proceedings that seek to describe the Israeli occupation, and the consequences of that occupation, as a bilateral dispute between Israel and Palestine (see Section II below). The Court addresses this only briefly and in so doing misses an important normative opportunity. I will also, in this context, address the Court's over-indulgence of arguments concerning its discretion to decide to not respond to a request for an advisory opinion, particularly when the request comes from the General Assembly or the Security Council. The second, and perhaps the most important issue for me is the right of self-determination and its status as jus cogens (see Section III below). Third, I will explain why, in my view, the Court was correct to find that the policies and practices of Israel in the Occupied Palestinian Territory amount to apartheid (see Section IV below). Fourth, the Court does not directly and comprehensively address the issue of Israel's security concerns, a decision I fully understand. Nonetheless, since Israel's security concerns are at the heart of much of the justification for its policies and practices, it is important to say something about them, and I will do so in this declaration (see Section V below). Fifth, in the context of the consequences flowing from Israel's breaches for the United Nations, the Court states that the United Nations should consider the “precise modalities and further action required to bring to an end as rapidly as possible” the unlawful presence of Israel in the OPTFootnote ². While this conclusion is correct, I believe that the Court could have described more concrete action that the United Nations should consider to bring to an end the unlawful presence of Israel in the OPT and to have Israel comply with its obligations under international law. I will provide some thoughts on the concrete action that the United Nations might consider in furtherance of the Palestinian right of self-determination and compliance with the terms of the Court's Opinion in general (see Section VI below).

II. The Palestinian question is not a bilateral dispute

6. All the participants in these proceedings have accepted that the Court has jurisdiction to render the requested advisory opinion. Yet it has been suggested by some that the Court ought not to exercise its jurisdiction — the legal jargon in use for the plea to the Court not to exercise its jurisdiction is that the Court has discretion and should exercise that discretion to decline to render an opinion in respect of this question, even though it has jurisdiction. The reasons that have been put forward in these proceedings for the Court to so exercise its discretion are several. In addition to the reason that will be the subject of this section, namely that the question involves a bilateral dispute, it has also been said that any opinion rendered will not be of assistance to the General Assembly, that it would undermine the political peace process, that it would undermine the role of the United Nations Security Council, that the Court does not have sufficient information to render an opinion, and that the questions are formulated in a biased way. These reasons are, by and large, drawn from the Court's jurisprudence.

7. I have no intention to address each of these. However, I would like to make a general point about the discretion that the Court is said to have to decline rendering an opinion. According to what has now become the Court's jurisprudence, further entrenched by the current Advisory Opinion of the Court, the Court has the discretion to decide not to exercise its advisory jurisdiction if there are compelling reasons. This jurisprudence, at least in lip-service, suggests that this discretion is unfetteredFootnote ³.

8. This notion of a discretion not to exercise jurisdiction validly established is now firmly part of the Court's jurisprudence and there is little chance of its displacementFootnote ⁴. As a result, in respect of each Advisory Opinion in the future the Court will continue, to the detriment of many trees and our climate, to rehearse and formulaically repeat these grounds and explain why they do not apply in that particular case. In my view, whatever discretion the Court may have, is extremely narrow — so narrow that the Court should stop being as indulgent with arguments concerning discretion as it has been in the past. The narrowness of the discretion to decline to give an advisory opinion is acknowledged by the Court itself in numerous cases, where it has observed that the Court's answer to a request for an advisory opinion “represents its participation in the activities of the Organization, and, in principle, should not be refused”Footnote ⁵. This is particularly the case where the request emanates from the other organs of the United Nations, i.e. the General Assembly or the Security Council. If a request should, in principle, not be refused, and if a refusal requires the existence of a compelling reason (the threshold for which is, in fact, so high that this Court has never found a reason compelling enough to refuse a request for an advisory opinion) then does the Court really have discretion in this matter? It would appear to me that what the Court has available to it is not discretion in the traditional sense, which is defined as “freedom in the exercise of judgment; the power of free decision-making”Footnote ⁶, but rather it has recourse to an overriding consideration of judicial propriety that can provide a legitimate excuse for refusing to reply to a request for an advisory opinion.

9. For the Court to refuse to respond to a request from the General Assembly or the Security Council when it has jurisdiction to do so would, in my view, amount to the Court second-guessing the decisions of the other principal organs in a way that would be legally problematic. This is not to say that the Court can never refuse to provide a requested opinion, even to the other principal organs of the United Nations. I can think of several reasons that the Court might exercise its very narrow discretion to decline to render an opinion. For example, I can imagine that the Court would not provide an opinion if the object of the question had since become mootFootnote ⁷, or where the request from an organ no longer enjoyed the support of many of its members that had previously supported the request (in a sense, piercing the “corporate veil”). The Court might also decline to offer an opinion where one principal organ makes the request, and the other expresses its displeasure at the request.

10. At any rate, the notion that the subject-matter of a request involves a bilateral dispute is not one which should prevent the Court from exercising its jurisdiction, notwithstanding the Court's previous statements that the bilateral character of an issue may be a compelling reason for declining to exercise its advisory jurisdictionFootnote ⁸. In its current Advisory Opinion, the Court responds to the bilateral dispute objection by noting that it does not regard the present case as only a bilateral matter between Israel and PalestineFootnote ⁹. Rather, in the Court's view, “this issue is a matter of particular interest and concern to the United Nations” because the “involvement of the United Nations organs, and before that the League of Nations, in questions relating to Palestine dates back to the Mandate System”Footnote ¹⁰.

11. While I think this institutional reasoning is correct, I also think it is important to emphasize that, quite apart from this institutional reason linked to the United Nation's long-standing responsibility, the Israeli-Palestinian conflict cannot be seen as a bilateral dispute for a much more normative reason. While international law cannot as yet (and maybe never will), be described, as a solidarity-based system, it is beyond doubt that the international legal system has moved beyond the era of pure bilateralism, which was the hallmark of traditional international law. It is for this reason that international law concerned itself with the situation in my own country prior to 1994, even though it was technically, in a purely bilateralist tradition, an internal matter; it is because of this reason that international law concerns itself with alleged cases of genocide whether happening within the boundaries of one State or not; it is for this reason that cases of human rights violations are the subject of consideration by international bodies. Then how can a case where some of the most fundamental norms of international law, in particular norms of jus cogens, are at stake be a bilateral dispute. I find it morally unthinkable that it could even be contemplated that what is happening in Palestine is a purely bilateral dispute. It is not. There is little that is bilateral about the situation in Palestine. With or without the United Nations' special institutional responsibility, the depravation of some of the most fundamental rights of a people is an issue which concerns all of humanity. There is little bilateral about a situation in which generations of a people are forced to live a life of subjugation and indignity, as orphans without the rights that the rest of us take for granted.

12. The Court is, of course, not wrong to refer to the institutional reason, which is the United Nations' institutional responsibility. Already in 2004, the Court based its rejection of the bilateral dispute objection on this point, stating that, “[g]iven the powers and responsibilities of the United Nations in questions relating to international peace and security, . . . the construction of the wall must be deemed to be directly of concern to the United Nations”Footnote ¹¹. That reason, while also institutional in nature, went even further than the reason provided by the Court in the current Advisory Opinion because, over and above the institutional reasons, it gave substantive reasons related to peace and security.

13. The institutional reasoning given by the Court in the current Advisory Opinion does not account for the humanitarian reasons why the situation in the Occupied Palestinian Territory cannot be seen as a bilateral dispute. It leaves unaccounted for, the moral and social imperative why international law must concern itself with that situation and, more to the point, why international law must dictate the “international community's” centrality in resolving that situation. I regret that the Court did not take this opportunity to do so. For while it was understandable for the Court, in 2004, to rely on the United Nations' institutional responsibility, in 2024 it should have relied on the responsibility of the “international community” as such regardless of the historical institutional responsibility of the United Nations.

III. Peremptory character of the right of self-determination

2. The necessity of referring to the peremptory character of self-determination

18. I begin first with the most probable reason for the Court's avoidance up to now of the issue of the peremptory status of self-determination, namely that it has been unnecessary. Indeed, one might point to the fact that there are other norms, such as the prohibition on the use of force, the peremptory status of which has to my knowledge only been questioned by one State — MoroccoFootnote ²³ — which the Court does not, in the current Advisory Opinion, describe as peremptory.

19. Justifying the Court's approach in Chagos, then former President of the Court, Judge Yusuf, suggested that to describe self-determination as a peremptory norm when it was not necessary would amount to “rambling” which the Court “did not usually engage in”Footnote ²⁴. Yet I can find many examples in the case law of the Court where the Court made statements that were not necessary for the resolution of the matter before itFootnote ²⁵. One could mention the famous dictum in Barcelona Traction in which the Court first made the distinction between obligations erga omnes and “those arising vis-à-vis another State”Footnote ²⁶. Similarly, the Court's recognition of the jus cogens status of the prohibition of torture in the context of Belgium v. Senegal was, as noted by Judge Abraham and Judge ad hoc Sur, not essential for the settlement of the disputeFootnote ²⁷. Neither, for that matter, was the Court's characterization of certain norms of international humanitarian law as “intransgressible”Footnote ²⁸ — a term whose meaning continues to elude me. Indeed, it may even be argued that given the Court's reliance on General Assembly Resolution 2625 (XXV) in Chagos, it was also not necessary to characterize the right of self-determination as erga omnes thereFootnote ²⁹, i.e. the duty to co-operate and to render assistance flowed from the resolution. It is not only in respect of jus cogens norms and erga omnes character of obligations that the Court has made declarations that are not strictly necessary for the ultimate settlement of the case. The Court's invocation of “the concept” of sustainable development in Gabčikovo-Nagymaros was also unnecessary for its settlement of the dispute between Hungary and SlovakiaFootnote ³⁰. In Kasikili/Sedudu the Court, having made an observation that its earlier findings were “sufficient to dispose of the matter” proceeded to add a fact that it itself described as “unnecessary”Footnote ³¹. These are but random examples, and I am sure many more examples can be provided. Indeed, in this Opinion too the Court refers to many elements that play no role in the final conclusions drawn by the Court, like for example, the several symbolic references to the Oslo Accords. Can all these examples be described as “rambling obiter dicta”? I don't think so. They all perform important functions related to the judicial responsibility of the Court.

20. At any rate, and for avoidance of doubt, there are at least three reasons why it was necessary to opine on the peremptory status of self-determination in this Opinion. First, the peremptory status of self-determination was argued by a great many participants. The Court cannot, or should not, simply ignore arguments made by such a significant number of States. Second, whenever the Court invokes a rule of international law, it is important that it, to the extent that it is capable of doing so, fully describes the status of that rule. Describing the status of a rule that has been invoked is not mere obiter, just as much as describing the number of instruments in which that rule can be found is not obiter — it is part of judicial reasoning. Third, and more importantly, the consequences for third States for the breach of the right of self-determination identified by the Court in the current Advisory Opinion, i.e. the duty to co-operate to bring to an end Israeli presence in the Occupied Palestinian TerritoryFootnote ³², the duty not to recognize situations arising from Israel's presence and the duty not to render assistance in the maintenance of such situations, do not, in my view, flow from the breach of any rule of international law, but rather from the breach of peremptory normsFootnote ³³. I will address this aspect more fully below when I address the Court's ambivalence in connection with consequences for third States flowing from the unlawfulness of Israel's presence in the Occupied Palestinian Territory (Section IV below).

21. To summarize, the argument that the Court has not, in the past (and could have done so here), specified that the right of self-determination is a peremptory norm because it was not strictly necessary to do so, is flawed for at least two reasons. First, it is flawed because the Court routinely makes statements that are not strictly necessary for the resolution of the case before it. Second, it is flawed because in this case, the peremptory character of self-determination was essential for proper judicial reasoning.

I turn now to the second possible reason for the Court's past hesitance.

IV. Apartheid

36. The Court was able to find a breach of Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, i.e. the prohibition of segregation and apartheid. I interpret this finding to be an acceptance that the policies and practices of Israel constitute a breach of the prohibition of apartheid, which itself is a peremptory norm of international law. I can understand that there is a reluctance to describe the policies of Israel in the OPT as apartheid. I suspect the main reason for this hesitation is that, to date, only the policies of the pre-1994 South African government in South Africa and elsewhere in Southern Africa have been described as apartheid. But recall, the term apartheid was coined by that régime not as a pejorative term, but as a positive concept to explain the benevolence of its policies as separate development, and moreover, at a time when many other States still practised racial discrimination themselves in some form or anotherFootnote ⁵⁶. Once the term attained a negative meaning, and international condemnation of racism swelled, no other State would self-describe its policies as apartheid.

37. But if we compare the policies of the South African apartheid regime with the practices of Israel in the OPT it is impossible not to come to the conclusion that they are similar. On the basis of the Court's finding concerning the various policies and practices it is hard not to see that Israeli policies, legislation and practices involve widespread discrimination against Palestinians in nearly all aspects of life much like the case in apartheid South Africa. There is for the most part an intentional effort to ensure separation of and discrimination between Israelis and Palestinians: separate roads, separate schools, separate facilities, and separate legal systems. Whether one speaks of the discriminatory detention practices, including detention without trial (not addressed in the Opinion but for which there is extensive information in the case file), residence permit system, restrictions of movement or demolition of property, deprivation of land, or the encircling of Palestinian communities into enclaves reminiscent of South African Bantustans from which I come, it is impossible to miss the similarities.

38. In the course of the proceedings, the Court heard many arguments about the definition of apartheid in customary international law since the Convention on the Elimination of All Forms of Racial Discrimination, to which Israel is a party, does not contain a definition. These proceedings may have provided the Court with an opportunity to provide a standard definition of apartheid under customary international law. That the Court did not do so should not detract from the cogency of its finding. Whether one relies on the definition in the Rome Statute or the definition in the Apartheid Convention, there seems to be a common core in all the definitions put forward by participants in the course of these proceedings, namely the existence of one or more racial groups, perpetration of one or more several inhuman acts against one or more of the racial groups in a systematic manner and the perpetration of those acts with the purpose of establishing and maintaining domination.

39. No one will seriously suggest that the first two of these elements are not present in the Occupied Palestinian Territory and so I do not intend to address these elements. Some may argue that the Israeli practices and policies do not rise to the level of apartheid because there is insufficient evidence that the third element is met, i.e. there is insufficient evidence that the enumerated inhuman acts were committed for the purposes of establishing and maintaining domination by one racial group. To this I would make only three brief points.

40. First, in interpreting the phrase, it is important to recall that the Apartheid Convention definition is prefaced by the statement “which shall include policies and practices of racial segregation and discrimination as practiced in southern Africa . . .”. As explained above, the policies and practices of Israel in the Occupied Palestinian Territory are, in many respects, alike to those of apartheid South Africa. The second point is that it would be incredibly rigid to insist on direct evidence of an intention to dominate. As the International Criminal Tribunal for the former Yugoslavia observed in the context of genocide, intention and purpose can be “inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group”Footnote ⁵⁷. I find it difficult to see how anyone can look at the policies and practices that have been detailed before the Court and find that, when taken together, the systemic character of these segregationist acts, including the explicit, legislated policy that self-determination in Palestine is reserved for Jewish persons onlyFootnote ⁵⁸, do not reveal the purpose of dominating the Palestinians. As a third and final point, it should be recalled that it is not necessary for the purpose of establishing “the purpose of domination” for domination to be the sole, or even dominant reason, for the discriminatory measures. Apartheid South Africa, it will be recalled, promoted its policy not solely for the purpose of domination, but to ensure what it termed “equal but separate development”Footnote ⁵⁹.

41. In the context of all of this, in my view, the Court was correct to find that the policies and practices of Israel in the Occupied Palestinian Territory are in breach of the prohibition of racial segregation and apartheid in Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, a conclusion that implicitly recognizes the apartheid character of Israeli practices and policies in the OPT.

V. Israel's security concerns

42. The main issue raised in the defence of Israeli policies, not only in the context of the current proceedings, but also in the context of other proceedings before this Court, namely the Wall Advisory Opinion, South Africa v. Israel, Nicaragua v. Israel, is the amorphous “security concerns of Israel”. Stripped bare to its essence, the argument seems to be that while the policies and practices of Israel impact negatively on the rights of the Palestinians, and prevent the full enjoyment of their rights under international law, because Israel finds itself under threat from Palestinians (and possibly others in the region), it should be permitted to continue with its policies until the threat to its security no longer exists (or at least it should be permitted to continue to deny Palestinians the enjoyment of their right of self-determination until this threat no longer exists). In these proceedings, the message was most clearly articulated by Fiji and Zambia. It has also been articulated by separate and dissenting opinions in South Africa v. Israel Footnote ⁶⁰.

43. In its Opinion, the Court refers to the issue only briefly and does not offer any comprehensive response. For example, at paragraph 47 the Court notes that Israel's written statement, while mainly focused on jurisdictional matters and questions of judicial propriety, also referred to Israel's security concerns. The Court, understandably, only offers fleeting responses. For instance, it states, at paragraph 254 that Israel's security concerns cannot “override the principle of the prohibition of the acquisition of territory by force”. However, given that the “security concerns” argument can form an important undercurrent of the defence of the relevant policies and practices, and “explanation” of the denial of the right of self-determination of the Palestinian people, I feel it important to address the question more explicitly.

44. I accept that security concerns are very important, and that Israel faces threats to its security, from amongst others Hamas, as the events of 7 October 2023 illustrate. Yet, as a first general point, when addressing security concerns, it should be recalled that all States, and not just Israel, have security interests. This includes Palestine. Often, when the “security concerns” claim is made, it is as if only Israel has security concerns or that somehow, Israel's security concerns override those of Palestine's. The second general point to make is that security interests as such, no matter how serious or legitimate, cannot override rules of international law, a point made by the Court. Indeed, save where called for by a specific rule, security concerns cannot even serve as a balance against rules of international law and certainly not against peremptory norms. Thus, the notion that the Palestinian right of self-determination must be balanced with, or is even subject to, Israeli security concerns is incongruous as a matter of international law. In fact, such arguments are not only incongruous, they also are dangerous. Allow me to illustrate by means of a “hypothetical” scenario: Imagine that one State believes, legitimately perhaps, that another State joining a defence alliance is a threat to its security interests. Can such a State decide to use military force to prevent the other State from joining the defence alliance? If so, we are moving dangerously into the Athenian paradigm where “the strong do what they can and the weak suffer what they must”.

45. I should not be misunderstood. International law is not agnostic to security concerns. International law finds different ways to protect security interests. Treaty rules, for example, can permit States to depart from protected rights in the interest of State security. More pertinent to the issues in the current proceedings, security interests are protected through rules of international law such as the duty to co-operate, and the law of the Charter on the prohibition on the use of force (including self-defence and the rules on the collective security framework). But the notion of security interests does not constitute an independent legal rule, or exception, permitting a State to depart from fundamental rules of the system.

46. In the context of the current proceedings, for example, the Court has found violations of a number of rules of international human rights law and international humanitarian law. It is possible, of course, to identify a particular rule within the relevant treaty permitting, for security purposes, the impugned conduct. A typical example is Article 4 of the International Covenant on Civil and Political Rights, which permits derogation from obligation under the Covenant for purposes “strictly required by the exigencies” of a situation “which threatens the life of a nation”. I leave aside whether the policies of Israel meet the requirement of Article 4 or whether its declaration of a derogation can be valid after such a long period of time. For current purposes, it is only important to point out that the security interest as such would not constitute an independent legal basis for departing from a rule of law in the Covenant. The legal basis would, in fact, be Article 4 of the Convention. The same point can be made in respect of Article 12 (3) of the Covenant which provides for restrictions to the right of liberty of movement on the basis of reasons related to the protection of national security. Again, national security does not provide an autonomous legal basis for restricting the right. The legal basis is the treaty provision. Similarly, Article 49 of the Fourth Geneva Convention permits an Occupying Power to effect transfers of population “if the security of the population or imperative military reasons so demand”. Any transfer of the population would be consistent with international law if “imperative military reasons” so demand not because of an autonomous argument based on security concerns but because the treaty rule provides for an exception.

47. At places, the Opinion might be read as suggesting that “security concerns” are in themselves a basis for departing from the rules of international law. For example, at paragraph 205, the Court considers whether Israeli restriction of freedom of movement of persons could be justified by reference to security concerns and concludes in the negative because the security concerns are related to illegal settlements. Nonetheless, it should be recalled that even there, Article 12 of the Covenant provides for the possibility of restriction of the right “to protect national security [and] public order (ordre public)”. The consideration of security concerns must thus be seen in that context.

48. Two particular legal bases addressing Israel's security concerns may be referred to. These are self-defence and the United Nations Security Council framework for addressing the Middle East conflict. In relation to the situation in the Occupied Palestinian Territory, the self-defence argument is multifaceted and raises different issues depending on the context in which it is raised. It may be raised in the context of Israeli occupation as such, i.e. the occupation itself is an act of self-defence (or was established pursuant to an act of self-defence), or it may be raised in the context of particular practice, policies or acts, such as the construction of the wall or various military operations launched against the Palestinian territory. In whatever context it is raised, it is important to emphasize that self-defence is subject to strict requirements, including that of an armed attack from a State, proportionality and necessity. Moreover, given the overall situation of occupation, the self-defence argument (in the context of particular acts or practices, such as military operations) will run up against the Court's finding in the Wall Advisory Opinion to the effect that self-defence does not apply (or “has no relevance”) because Israel “exercises control in the Occupied Palestinian Territory and that . . . the threat which it regards as justifying [forcible measures] originates within, and not outside, that territory”Footnote ⁶¹. For present purposes, I can say only that any one of these provides insurmountable hurdles for anyone seeking to justify Israeli practices and policies as acts of self-defence.

49. It is the second argument i.e. the Security Council framework, that I wish to focus on. The argument, as I understand it, is that the framework established by the Security Council requires that the right of self-determination of the Palestinians cannot be addressed without also addressing the security concerns of Israel. These two issues, it is argued, should be seen as inextricably linked and, as such, the withdrawal of Israel from the Occupied Palestinian Territory must occur concurrently or simultaneously with the attainment of Israel's security. The basis for this contention is to be found in the provisions of Security Council 242 (and subsequent resolutions which affirm resolution 242). I leave aside the question whether these resolutions are law — or establish binding obligations under Article 25 of the Charter of the United Nations — and whether, assuming they do establish legal obligations under Article 25 of the Charter, they can take priority over the right of self-determination which has peremptory character. I also leave aside the fact that those that focus on simultaneous achievement of self-determination and security concerns as the pathway to the two-State solution seem to have no qualms with the fact that Israel already enjoys fully its right of self-determination without insisting on the simultaneous or concurrent enjoyment of the same right by Palestinians or the simultaneous or concurrent achievement of the security of Palestinians.

50. United Nations Security Council Resolution 242, the content of which was endorsed in Resolution 338, affirms that the solution to the Middle East situation requires the “application of both the following principles”, and then refers to (i) the “[w]ithdrawal of Israel armed forces” from the occupied territory and (ii) the “[t]ermination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force”. Presumably it is the word “both” that forms the basis of the belief that one element (“occupation”) cannot be addressed outside the other (“security”).

51. The rules of interpretation of resolutions of political organs of international organizations are, in general, with the necessary adjustments, similar to the rules for interpreting treatiesFootnote ⁶². The golden rule being the ordinary meaning to be given to the words of the resolutions in their context and in light of the object and purpose of the resolution. First, it bears mentioning that there is nothing in the language of the resolution that suggests that at issue is the security of Israel. The resolution speaks of “political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force”. Let's not forget, Palestine has none of these! It's political independence is severely compromised; the occupation by Israel, which has now morphed into annexation, ensures that it does not have recognized borders; it is decidedly not free from threats, so that its security concerns remain unachieved.

52. Second, and more importantly, there is nothing in the ordinary meaning of the words of Resolution 242 that suggests that the two elements are interdependent, at least not in the sense that they must be simultaneously or concurrently achieved. As observed above, the insistence on interdependence in the sense that one element cannot be finalized before the other, is presumably based on the word “both” in Resolution 242. Yet, the fact that both elements are essential to “the establishment of a just and lasting peace in the Middle East” does not preclude that one is acted upon before the other, or even as I see it, that one is finalized as a precursor to the finalization of the other.

53. Finally, this reading of the resolution, i.e. that the two elements are not forever and inextricably tied at the hips, is clear from the fact that the Security Council itself has on occasion addressed the question of occupation without, at the same time addressing the second element. In Resolution 476, for example, the Council reaffirmed “the overriding necessity for ending the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem” without referring at all, not even in the preamble, to the second element.

54. In conclusion, security concerns apply to all States. All States have a legitimate interest in peaceful existence without threats to their security. How States promote and protect their security, however, is subject to international law and security interests cannot override legal rules, and certainly not the most fundamental rules having the character of jus cogens.

VI. Consequences for the United Nations

55. I am generally comfortable with the consequences identified by the Court. I would have been particularly pleased if the Court had spelt out other consequences flowing from the peremptory status of the norms in question, such as the implications for a potential final status agreement, i.e. that any such agreement must be consistent with the right of self-determination, or had the Court engaged with the (rather difficult) question of whether the peremptory character of the norms in question has any impact whatsoever on the question of reparations — I believe it does, but I understand that this would be going against the grain, something a court of law should avoid doing unless it has a watertight basis.

56. In addition to consequences for the United Nations and for third States, the Court also concludes that the United Nations “should consider . . . further action required to bring to an end” the unlawful presence of Israel in the OPT as rapidly as possible. This is an important statement, but what does it mean? Is it a legal consequence? Is it a duty? Why use “should” as opposed to “under an obligation” as is the case for the other consequences? Does this suggest that this recital is, in fact, of no legal consequence?

57. No! I believe this recital to be a legal consequence of the breaches in question and that the United Nations organs have a duty to “consider” what further action is required, particularly in the event that Israel does not comply with the legal consequences identified in the Opinion. The requirement for the United Nations to consider further measures follows from the Court's emphasis on the “necessity for the United Nations . . . to redouble its efforts” in the context of the Middle East peace processFootnote ⁶³. Indeed, the Security Council itself has committed to, “in the event of non-compliance by Israel [with its own determinations] . . . to examine practical ways and means in accordance with relevant provisions of the Charter of the United Nations to secure the full” compliance by Israel with international lawFootnote ⁶⁴. The Court, of course, has to be careful not to impose on the political organs of the United Nations, which would amount to usurpation of their responsibilities. But stating that the United Nations is under a duty to consider further action is not inconsistent with the respect for the discretion that the political organs have in addressing matters they are seized withFootnote ⁶⁵. However, once a judicial determination has been made by the Court that fundamental rules having peremptory status have been breached, the discretion is no longer whether to take action but only what action to take. Thus, while the Court states that the United Nations “should” consider what action, I understand this “should” to mean, is obliged to. I understand that the Court uses “should” only to emphasize that it is not for it to dictate to the political organs of the United Nations what action they should take.

58. Political organs have a wide margin of discretion in their consideration of what action to take, so long as such action is consistent with international law. The Charter provides a number of options, including enforcement action, to ensure compliance. But there are other ways. For example, the political organs could, as a way of solidifying the basis on which Palestine and its people can enjoy self-determination, act positively on Palestine's request for membership in the United Nations. To this end, it is to be noted that earlier this year, the General Assembly has taken the steps to accord the State of Palestine rights akin to those of a Member StateFootnote ⁶⁶. Similarly, the political organs could consider curtailment of Israel's participation in the activities of the United Nations, or similar action, as was done in respect of South Africa in 1974Footnote ⁶⁷.

59. Political organs of the United Nations also have an important role to play in ensuring Israel's compliance with its reparation obligation identified in the OpinionFootnote ⁶⁸. As the Court observed, Israel “has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons, and populations” that have suffered any form of material damage as a result of Israel's wrongful acts under the occupation (para. 271). These rules were recently reaffirmed by the General Assembly in its Resolution A/RES/ES-11/5 dated 15 November 2022, titled “Furtherance of remedy and reparation for aggression against Ukraine”.

60. In view of the nature and scale of the violations of international law identified by the Court, and the potentially large pool of claimants resulting therefrom, the United Nations might want to consider the establishment of an international mechanism for reparation for damage, loss or injury, and arising from the internationally wrongful acts of Israel identified in the Opinion. The revitalization and expansion of the mandate of the United Nations Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory (UNRoD), which was established by the General Assembly in 2006 following the issuance of the Wall Advisory Opinion, is relevant in this respectFootnote ⁶⁹.

VII. Conclusion

61. In this Opinion, for the first time, the Court has held that the presence of Israel on the Occupied Palestinian Territory is unlawful. It has come to this conclusion because policies and practices on the Occupied Palestinian Territory have revealed the true purpose of Israel as being the forceful acquisition of the Palestinian territory in violation of fundamental rules of international law, some of which are peremptory norms of international law. In particular the Court found breaches of the right of self-determination, the peremptory character of which the Court confirmed in the Opinion, the prohibition of the acquisition of territory by force, the prohibition of segregation and racial discrimination and basic rules of international humanitarian law.

62. These norms, even those not identified as such by the Court, are generally regarded as having peremptory status. The Court's conclusion that these norms have been egregiously and systematically violated by Israel in the Occupied Palestinian Territory should be applauded as an important contribution to the development of international law and the reinforcement of some of its most fundamental tenets: force cannot be used to acquire territory, the right to self-determination of peoples is sacrosanct, the obligations of an occupying power towards protected persons continue as long as the occupation persists, the practice of racial segregation and apartheid is not exclusive to Southern Africa, to name but a few tenets.

63. Yet, as important as these fundamental principles of international law are, ultimately the main purpose of an advisory opinion should not be just the development of rules of international law and the contribution to doctrine. The main function of any advisory opinion should be to assist the organization requesting it to address whatever problem it may be faced with. In this context, the main function of the current Opinion is to assist the General Assembly, and indeed the United Nations as a whole, in resolving the decades-long subjugation of the Palestinian people. The 285 paragraphs of this Advisory Opinion will be meaningless if the United Nations does not act upon the advice provided by the Court to promote the resolution of this conflict which is a large stain on the claim that there exists an international community, for how can any community permit such indignity and suffering as that imposed on the Palestinian people.

(Signed)  Dire TLADI.