ICJ's Stance on Israel's Occupation of West Bank and East Jerusalem

What’s in today’s article?

• Why in News?
• What is International Court of Justice (ICJ)?
• What is the meaning of occupation in international law?
• ICJ’s opinion on Israel’s occupation: Background
• Opinion rendered by the ICJ

Why in News?

The International Court of Justice (ICJ) recently stated that Israel's occupation of the West Bank and East Jerusalem violates international law. The ICJ further asserted that Israel's presence in Palestinian territories should end as soon as possible.

Israel has occupied the West Bank and East Jerusalem since the Six-Day War in 1967. Prior to this, the territories were under Jordanian control.

What is International Court of Justice (ICJ)?

• About
  • The ICJ is the principal judicial organ of the United Nations (UN). 
  • It was established in June 1945 by the Charter of the United Nations and began work in April 1946.
  • The seat of the Court is at the Peace Palace in The Hague (Netherlands). 
    • It is the only one of the six principal organs of the UN that is not located in New York City.
  • English and French are the ICJ’s official languages.
• Role
  • The role of ICJ is: 
    • to settle, in accordance with international law, legal disputes submitted to it by States and 
    • to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. 
• Judges
  • The ICJ has 15 judges who are elected to nine-year terms by the UN General Assembly and Security Council, which vote simultaneously but separately. 
  • The president and vice-president of the court are elected for three-year terms by secret ballot. Judges are eligible for re-election.
• Members and Jurisdiction
  • All members of the UN are automatically parties to the ICJ statute. However, this does not automatically give the ICJ jurisdiction over disputes involving them. 
    • The ICJ gets jurisdiction only if both parties consent to it.
  • The judgment of the ICJ is final and technically binding on the parties to a case. 
    • There is no provision of appeal. It can at the most, be subject to interpretation or, upon the discovery of a new fact, revision.
  • The ICJ has no way to ensure compliance of its orders, and its authority is derived from the willingness of countries to abide by them.

What is the meaning of occupation in international law?

• The most widely accepted definition of occupation comes from Article 42 of the Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex,1907.
• It states that a "territory is considered occupied when it is actually placed under the authority of the hostile army." 
• An occupation must be temporary and cannot involve transferring sovereignty to the occupying power. 
• Once a territory is seized, the occupying power has obligations towards the inhabitants, as outlined in the 1907 Hague regulations and the Fourth Geneva Convention of 1949. 
• These obligations include providing food and medical care to the population and prohibit transferring civilian populations and using or threatening force.

ICJ’s opinion on Israel’s occupation: Background

• In December 2022, the UN General Assembly adopted a resolution seeking the ICJ’s advisory opinion on the “legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.
• This came well before Israel’s assault on Gaza following the Hamas attacks of October 7, 2023.
• The recent opinion of ICJ came against this backdrop. It should be noted that the ICJ’s opinion is not binding or enforceable.

Opinion rendered by the ICJ

• On prolonged occupation
  • The international law does not set a specific time limit for an occupation, so the legal status of an occupation cannot be determined by its duration. 
  • Instead, the legality of an occupation is affected by the occupying power's "policies and practices and the manner in which they are implemented and applied on the ground.
• On settlement policy
  • The ICJ examined Israel's settlement policy in the West Bank and East Jerusalem since 1967 and found it violated international law. 
  • The court highlighted several issues:
    • The settlement policy and military measures have forced Palestinians to leave occupied territories, violating Article 49 of the Fourth Geneva Convention.
      • This covention prohibits the transfer of the occupier's population into occupied territories.
    • The policy breaches Articles 46, 52, and 55 of the Hague regulations by expanding settlements through land confiscation, thus failing to protect private property, civilian objects, and the natural environment.
    • The policy violates Article 43 of the Hague regulations, as Israel applies its own laws to settlements and East Jerusalem, disregarding existing local laws.
  • the ICJ noted that the policy led to violence by Israeli settlers and security forces against Palestinians, which Israel failed to prevent or punish, creating a coercive environment against Palestinians.
• On annexation of Palestinian territories
  • The ICJ stated that annexation is the permanent control over an occupied territory. 
  • It found that Israel's policies and practices in the West Bank and East Jerusalem are intended to be indefinite and create irreversible effects. 
  • These policies include the maintenance and expansion of settlements, exploitation of Palestinian natural resources, proclaiming Jerusalem as Israel's capital, and applying Israeli domestic law in East Jerusalem and the West Bank. 
  • The ICJ concluded that these actions violate the prohibition of the use of force in international relations, affecting the legality of Israel's occupation.
• On discriminatory legislation and measures
  • The court found that Israel's legislation in the occupied territories results in systemic discrimination against Palestinians based on race, religion, or ethnic origin. 
  • This violates the International Covenants on Economic, Social, and Cultural Rights 1954 and Civil and Political Rights 1954, as well as the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD). 
  • The court observed that Israel's policies maintain near-complete separation between settlers and Palestinians, violating Article 3 of ICERD, which obligates the eradication of apartheid and racial segregation practices.
• On self-determination
  • The ICJ determined that Israel's occupation has violated Palestinians' right to self-determination. 
  • It noted that the prolonged deprivation of this right undermines Palestinians' ability to exercise it in the future, contravening fundamental principles of international law.
• On future course of action
  • The ICJ said that Israel is under the obligation to: 
    • immediately end its illegal occupation, 
    • cease new settlement activities and evacuate settlers from the occupied territories, and 
    • make reparation to all affected people for the damage caused.
  • The court said that other states should not recognise the occupied territories as part of Israel, and refrain from providing aid or assistance to Israel in maintaining this occupation.

Q.1. What is the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD)?

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted in 1965, is a United Nations treaty aimed at eliminating racial discrimination and promoting racial equality. It obligates signatory countries to outlaw racial discrimination and foster understanding among all races.

Q.2. What is Fourth Geneva Convention?

The Fourth Geneva Convention, adopted in 1949, is a humanitarian law treaty designed to protect civilians during times of armed conflict. It outlines the rights and protections for individuals in occupied territories, ensuring humane treatment and safeguarding civilians from violence and abuse.

Source: What has the ICJ said about Israel’s occupation of West Bank and East Jerusalem? | The Times of Israel | BBC