The Limits of the ICJ Advisory Opinion on Israel’s Occupation and the West Bank

Last month, the International Court of Justice (ICJ) issued an advisory opinion on the “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.”

It was not the first time the ICJ weighed in on the Israeli-Palestinian conflict in general and the Israeli presence in the West Bank and Gaza in particular. In three different instances, both through its contested jurisdiction as well as through its advisory jurisdiction, the court scrutinized Israeli actions.

The court rendered its first advisory opinion on Israeli actions in the West Bank in 2004, after Israel extended its security fence project beyond the 1967 armistice line, also called the “Green Line.” The next ruling came 20 years later, earlier this year, when the court issued provisional measures initiated by South Africa related to Israel’s military operation in Gaza. Then, on July 19, the court responded to a UN General Assembly request by issuing its advisory opinion on the implications stemming from Israel’s long-term occupation regime.

Some UN experts have hailed this most recent advisory opinion as “historic.” However, a closer reading of the opinion—specifically what the ICJ left unsaid or unexplored—complicates the idea that it constitutes a breakthrough in the evolution of the law of occupation in general and of the Israeli-Palestinian conflict in particular.

By leaving aspects of history, geopolitics and security, and international relations in a gray zone, the advisory opinion demonstrates the limitations of international courts when it comes to the treatment and discussion of highly politicized international conflicts. This does not mean that such conflicts should not be discussed at all by courts or that they are nonjusticiable. Rather, instead of contending that such rulings or opinions argue for A or B, more complex meanings may be hidden in aspects of the conflict that international courts opted not to comment on.

History

It almost goes without saying that the Israeli-Palestinian conflict has a long history. Yet the conflict’s history is only one part of the greater history of the region, which spans thousands of years. In its recent advisory opinion, the ICJ lays out its conceptual framework in the general “context section,” in which the judges recount the history of the Israeli-Palestinian conflict from the 20th century with the League of Nations mandate on Palestine. At the time, the name “Palestine” denoted the Jewish presence in the land, whereas nowadays “Palestine” is associated with the Palestinians.

However, there are several aspects of history that the court does not mention, including the Jewish presence in the land throughout the centuries and the Balfour Declaration in which the United Kingdom promised a national home to the Jews. Without these points, someone reading the opinion may get the impression that there was a place called Palestine where Jews, who have in the meantime been transformed to “Israelis,” appear to have come from outside the area with no ties to it.

Twenty years ago, in the advisory opinion on Israel’s security fence, the court embarked on a similar historical encounter, which was criticized by international law scholars. In the most recent opinion, states also brought forth this criticism. In paragraph 178, the court mentions that “two States” appeared before the judges, arguing that the opinion’s request formulation disregarded Israel’s “deep historical ties.” The court bypasses these arguments by briefly stating in the same paragraph that it was not called to pronounce upon historical claims and that in all cases these two states did not bring before the court evidence to buttress Israel’s historical connection to the area. And yet, the court was ready to discuss history elsewhere in the opinion. Moreover, given that as a principle of law existent in a number of domestic systems, judges are not required to be presented with evidence for matters that are so commonly known, the question is whether Israel’s historical connection to the area was subject to a proof of evidence given the historical and archaeological documents and items that demonstrate this.

The idea that a court, all the more so an international one, cannot play the role of a historian and start relating to history, is a controversial one. Proponents of a positivist, black-letter reading of international law, with no recourse to the humanities or to social sciences, will herald it, seeing law—international law, in this case—as a closed circuit with its own rules and application of norms. At the same time, empiricists who see law in constant dialogue with other disciplines would want the court to undertake this historian’s task given that other international judicial bodies have done so, for example, the Permanent Court of Arbitration in the case between the Philippines and China over the South Chinese Sea. There, the arbitrators considered in detail China’s historic ties to the South China Sea in order to pronounce their stance.

Geopolitics and International Security

The same methodological inconsistency lies also in the court’s treatment of the notion of security as justification for Israel’s presence in the West Bank. The ICJ cites UN Security Council Resolution 242, which held that based on the principle of the non-acquisition of territory through force, Israel should withdraw from territories captured during the 1967 war, ensuring though that such withdrawal will not create a situation in which states in the region live with nonsecure borders. The travaux preparatoires, meaning the preparatory works of the resolution, show how the phrase “territories” rather than “the territories” was explicitly chosen in order to avoid what the court has called for, meaning a complete and unconditional Israeli withdrawal to the 1967 armistice lines, given the security perils such withdrawal would entail. UN Security Council Resolution 242 has never been interpreted by international Palestinian representatives to mean ordering an automatic Israeli withdrawal to the 1967 armistice line. That’s why land swaps were on the table through decades of Israeli-Palestinian negotiations—another fact the court failed to mention.

The ICJ states that even national security considerations cannot justify Israel’s continuous presence in the West Bank. Yet this runs contrary to the premise of UN Security Council Resolution 242, and the court does not explain how it can interpret the resolution contra legem, or against the law. The reader is left to ponder the fact that maybe the court’s intention is for national security not to be used as a fig leaf for a continuous Israeli presence in the West Bank on political grounds. This may be correct, but by ordering Israel to unconditionally terminate its West Bank presence, despite the existence or not of security perils that may come from it, the court is making a presumption that such security considerations are not present.

Yet Israel grapples with security challenges at every border, from Hezbollah in the North, to Iran in the East, the Houthis in the Southeast, and Hamas in Gaza in the country’s Southwest. The court dismisses the national security argument for the presence of the Israeli army in the West Bank in a parallel context inside which the Palestinians also exercise their right to govern their affairs as part of their right to self-determination, especially when a foreign army presence in the areas where the Palestinians are meant to exercise their right to self-determination has been proposed regarding Gaza. This weakens the opinion itself and creates a disparity between the application of international law as a normative, legalistic exercise and the need for the geopolitical reality to be taken into account.

Apartheid

As the ICJ judges discussed the request for the advisory opinion, a number of states brought forth the claim before the court that Israel’s prolonged West Bank occupation constituted “apartheid.” Though the UN General Assembly request did not explicitly ask the court to opine on the issue, several states prompted the judges to take a stance.

In paragraph 229 of the opinion, the judges found that Israel, through its West Bank policies, violates Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD). The particular article speaks about racial segregation and apartheid, two different crimes as the court itself notes in paragraph 225. Quite interestingly, although Article 3 speaks about “racial segregation and apartheid,” the court summarized the states’ position on the issue by stating that some states had argued that the West Bank occupation constituted “segregation or apartheid” according to Article 3. The court makes clear that it sees Article 3 as containing two distinct international law violations: racial segregation on one hand and apartheid on the other. Consequently, by stating generally in paragraph 229 that Israel’s policies breach Article 3, the court opens the possibility for both views to be upheld regarding the question of whether Israel should be deemed guilty for the crime of apartheid or for the crime of racial segregation. Thus, Judge Georg Nolte argues in his separate opinion that in this particular dictum the court held Israel culpable for racial segregation in the West Bank but not for the crime of apartheid. At the same time, the court’s non-usage of the word “apartheid” has equally left room for someone to argue for an opposite reading, namely that because the court has found Israel guilty of violating Article 3 of the CERD, this means the court held that Israel is guilty of apartheid.

Whatever interpretation someone adopts on the matter, the court’s stance suggests a hesitation to explicitly opine on the issue and shows the trade-off between clarity and consensus. This further illustrates the need for judicial decisions and opinions to be read within their textual and contextual complexity and not as clear-cut verdicts.

This applies equally to any attempts to read such judicial pronouncements in conjunction with past rulings and opinions. For example, the apartheid discussion in the West Bank brings to mind the ICJ Namibia advisory opinion, in which the court held that South Africa—then an apartheid state—should immediately terminate its presence in Southwest Africa (present-day Namibia) and that other states and organizations should not recognize South Africa’s illegal presence.

This resembles what the court recently said about Israel’s presence in the West Bank, but with one important caveat: In the case of the West Bank, the court has called for the Israeli presence to terminate “as rapidly as possible,” noting a considerable dissenting view from four of the 15 judges. This strong minority opinion will make it more difficult for states and organizations to impose sanctions on Israel based on the Namibia precedent.

Much like the question of whether sanctions will lead to a peaceful resolution, the Israeli-Palestinian conflict also does not provide clear-cut answers when it comes to the application of international law.