ICJ Advisory Opinion on Israel & Palestine (2024) PDF

19 JULY 2024 ADVISORY OPINION LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY, INCLUDING EAST JERUSALEM ___________ CONSÉQUENCES JURIDIQUES DÉCOULANT DES POLITIQUES ET PRATIQUES D’ISRAËL DANS LE TERRITOIRE PALESTINIEN OCCUPÉ, Y COMPRIS JÉRUSALEM-EST 19 JUILLET 2024 AVIS CONSULTATIF TABLE OF CONTENTS Paragraphs CHRONOLOGY OF THE PROCEDURE 1-21 I. JURISDICTION AND DISCRETION 22-50 A. Jurisdiction 23-29 B. Discretion 30-49 1. Whether the request relates to a dispute between two parties, one of which has not consented to the jurisdiction of the Court 33-35 2. Whether the Court’s opinion would assist the General Assembly in the performance of its functions 36-37 3. Whether the Court’s opinion may undermine the negotiation process between Israel and Palestine 38-40 4. Whether an advisory opinion would be detrimental to the work of the Security Council 41-43 5. Whether the Court has sufficient information to enable it to give an advisory opinion 44-47 6. Whether the questions are formulated in a biased manner 48-49 II. GENERAL CONTEXT 51-71 III. SCOPE AND MEANING OF THE QUESTIONS POSED BY THE GENERAL ASSEMBLY 72-83 IV. APPLICABLE LAW 84-102 V. ISRAEL’S POLICIES AND PRACTICES IN THE OCCUPIED PALESTINIAN TERRITORY 103-243 A. The question of the prolonged occupation 104-110 B. Settlement policy 111-156 1. Overview 111-114 2. Transfer of civilian population 115-119 3. Confiscation or requisitioning of land 120-123 4. Exploitation of natural resources 124-133 5. Extension of Israeli law 134-141 6. Forced displacement of the Palestinian population 142-147 7. Violence against Palestinians 148-154 8. Conclusion on Israel’s settlement policy 155-156 - ii - C. The question of the annexation of the Occupied Palestinian Territory 157-179 1. The concept of annexation 158-161 2. Acts by Israel amounting to annexation 162-173 3. The prohibition of the acquisition of territory by force 174-179 D. The question of discriminatory legislation and measures 180-229 1. The scope of question (a) 180-184 2. The concept of discrimination 185-191 3. Residence permit policy 192-197 4. Restrictions on movement 198-206 5. Demolition of property 207-222 (a) Punitive demolitions 208-213 (b) Demolitions for lack of building permit 214-222 6. Conclusion on Israel’s discriminatory legislation and measures 223-229 E. The question of self-determination 230-243 VI. EFFECTS OF ISRAEL’S POLICIES AND PRACTICES ON THE LEGAL STATUS OF THE OCCUPATION 244-264 A. The scope of the first part of question (b) and applicable law 244-251 B. The manner in which Israeli policies and practices affect the legal status of the occupation 252-258 C. The legality of the continued presence of Israel in the Occupied Palestinian Territory 259-264 VII. LEGAL CONSEQUENCES ARISING FROM ISRAEL’S POLICIES AND PRACTICES AND FROM THE ILLEGALITY OF ISRAEL’S CONTINUED PRESENCE IN THE OCCUPIED PALESTINIAN TERRITORY 265-283 A. Legal consequences for Israel 267-272 B. Legal consequences for other States 273-279 C. Legal consequences for the United Nations 280-283 OPERATIVE CLAUSE 285 ___________ INTERNATIONAL COURT OF JUSTICE YEAR 2024 2024 19 July General List No. 186 19 July 2024 LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY, INCLUDING EAST JERUSALEM Jurisdiction of the Court to give the advisory opinion requested. Article 65, paragraph 1, of the Statute — Article 96, paragraph 1, of the Charter — Competence of the General Assembly to seek advisory opinions — Request made in accordance with the Charter — Questions submitted to the Court are legal in character. The Court has jurisdiction to give the advisory opinion requested. * * Discretion of the Court to decide whether it should give an opinion. Article 65, paragraph 1, of the Statute — Only “compelling reasons” may lead the Court to refuse to exercise its judicial function. Argument that request relates to a dispute between two parties, one of which has not consented to jurisdiction of the Court — Subject-matter of the General Assembly’s request is not only a bilateral matter between Israel and Palestine — Issue is a matter of particular interest and concern to the United Nations — Giving the opinion requested does not have effect of circumventing principle of consent to judicial settlement. Argument that the Court’s response would not assist the General Assembly in performance of its functions — Determination of usefulness of the opinion left to requesting organ. -2- Argument that the Court’s opinion may undermine negotiation process between Israel and Palestine — Question of possible adverse effect is a matter of conjecture — The Court cannot speculate about the effects of its opinion. Argument that an advisory opinion would be detrimental to work of the Security Council — Primary responsibility of the Security Council for maintenance of international peace and security is not necessarily exclusive — The General Assembly has competence to address matters concerning international peace and security, such as those raised in questions. Argument that the Court lacks sufficient information to enable it to give an advisory opinion — The Court considers it has sufficient information on the facts at its disposal. Argument that questions are formulated in biased manner — It is for the Court to appreciate and assess appropriateness of formulation of questions — The Court also has power to determine for itself scope and meaning of questions. No compelling reasons for the Court to decline to give the opinion requested by the General Assembly. * * Scope and meaning of the questions posed by the General Assembly. Material scope — Question (a) identifies three types of conduct which question (b) describes as policies and practices of Israel — Assumption under terms of question (a) that these policies and practices are contrary to international law — It is, however, for the Court to determine lawfulness of policies and practices identified by the General Assembly — Methods of proof applied by the Court — No need for the Court to make findings of fact with regard to specific incidents. Territorial scope — Palestinian territory occupied since 1967 encompassing the West Bank, East Jerusalem and the Gaza Strip — The “Occupied Palestinian Territory” constituting, from legal standpoint, a single territorial unit. Temporal scope — The Court is not precluded from having regard to facts predating the occupation — Policies and practices contemplated by request do not include conduct by Israel in the Gaza Strip in response to attack carried out on 7 October 2023. First part of question (b) calls on the Court to ascertain manner in which Israel’s policies and practices affect legal status of occupation, and thereby legality of continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory. * * Applicable law. -3- Status of the Occupied Palestinian Territory — The West Bank and East Jerusalem are occupied territories in which Israel has status of occupying Power — Examination of status of the Gaza Strip — Israel’s obligations in the Gaza Strip are commensurate with degree of its effective control. Relevance of prohibition of acquisition of territory by threat or use of force and of right of peoples to self-determination — Particular relevance of international humanitarian law — Fourth Geneva Convention is applicable in the Occupied Palestinian Territory — Hague Regulations are binding on Israel — International human rights law — Israel is bound by the ICCPR and the ICESCR — Israel is bound to comply with CERD — Question of Oslo Accords — Oslo Accords cannot be understood to detract from Israel’s obligations under pertinent rules of international law applicable in the Occupied Palestinian Territory. * * Israel’s policies and practices in the Occupied Palestinian Territory. Question (a) concerns in part the legal consequences arising from Israel’s “prolonged occupation” of the Occupied Palestinian Territory  Duty of occupying Power to administer the territory for benefit of local population  Nature and scope of powers and duties of occupying Power always premised on assumption that occupation is a temporary situation to respond to military necessity  Occupation cannot transfer title of sovereignty to occupying Power  Fact that an occupation is prolonged may have a bearing on justification under international law of occupying Power’s continued presence in the occupied territory  The Court to examine Israel’s policies and practices, as well as its continued presence in the Occupied Palestinian Territory, against this background. Settlement policy. Since removal of Israel’s settlements from the Gaza Strip in 2005, Israel’s settlement policy has continued in the West Bank and East Jerusalem  The Court to limit its analysis to Israel’s ongoing settlement policy in the West Bank and East Jerusalem. Transfer by Israel of settlers to the West Bank and East Jerusalem, as well as maintenance of their presence, contrary to sixth paragraph of Article 49 of Fourth Geneva Convention  Expansion of Israel’s settlements in the West Bank and East Jerusalem based on confiscation or requisitioning of large areas of land  Land policies of Israel not in conformity with Articles 46, 52 and 55 of Hague Regulations. Exploitation of natural resources  Occupying Power is only administrator and usufructuary of natural resources in the occupied territory and must safeguard the capital of these resources  Use by occupying Power of natural resources must not exceed what is necessary for purposes of the occupation  Continuing duty of occupying Power to ensure adequate supply of foodstuffs for local population, including water  Use of natural resources in the occupied territory must be sustainable  Evidence that Israel exploits natural resources in Area C for benefit of its own population, to disadvantage of local Palestinian population  Israel’s use of natural resources in the Occupied Palestinian Territory inconsistent with its obligations under international law. -4- Extension of Israeli law in the West Bank and East Jerusalem  Under Article 43 of Hague Regulations, occupying Power must in principle respect law in force in the occupied territory unless absolutely prevented from doing so  Exceptions set out in second paragraph of Article 64 of Fourth Geneva Convention  Extension of Israel’s law to the West Bank and East Jerusalem not justified under relevant provision of Fourth Geneva Convention  Regulatory authority exercised by Israel in manner that is inconsistent with rule reflected in Article 43 of Hague Regulations and Article 64 of Fourth Geneva Convention. Forced displacement of Palestinian population  Large-scale confiscation of land and deprivation of access to natural resources, as well as measures taken by Israeli military forces inducing departure of Palestinian population in Area C  Israel’s policies and practices contrary to prohibition of forcible transfer of protected population under first paragraph of Article 49 of Fourth Geneva Convention. Violence against Palestinians  Israel’s systematic failure to prevent or punish attacks by settlers against the life or bodily integrity of Palestinians, as well as Israel’s excessive use of force against Palestinians, is inconsistent with its obligations under Article 46 of Hague Regulations, first paragraph of Article 27 of Fourth Geneva Convention, Article 6, paragraph 1, and Article 7 of the ICCPR. Israeli settlements in the West Bank and East Jerusalem, and the régime associated with them, have been established and are being maintained in violation of international law. Question of annexation of the Occupied Palestinian Territory. Conduct by occupying Power displaying intent to exercise permanent control over occupied territory may indicate an act of annexation  Israel’s policies and practices, notably in East Jerusalem and Area C of the West Bank, designed to remain in place indefinitely and to create irreversible effects on the ground  Israel’s policies and practices amount to annexation of large parts of the Occupied Palestinian Territory  Prohibition of the use of force and corollary principle of non-acquisition of territory by force. Question of discriminatory legislation and measures. Concept of discrimination  The Court to determine whether legislation adopted and measures taken by Israel differentiate on, inter alia, grounds of race, religion or ethnicity between Palestinians and members of other groups in relation to their enjoyment of human rights  Whether differentiation of treatment is nevertheless justified, in that it is reasonable and objective and serves a legitimate public aim. Israel’s residence permit policy amounts to prohibited discrimination under Articles 2, paragraph 2, 23 and 26 ICCPR, and Articles 2, paragraph 2, and 10, paragraph 1, of the ICESCR  Restrictions imposed by Israel on movement of Palestinians in the Occupied Palestinian Territory amount to prohibited discrimination  Israel’s practice of demolition of Palestinian properties in the West Bank and in East Jerusalem, including punitive demolitions and demolitions for lack of building permit, amounts to prohibited discrimination  Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between settler and Palestinian communities  Israel’s legislation and measures constitute breach of Article 3 of CERD. -5- Question of self-determination. Effects of Israel’s policies and practices on exercise of the Palestinian people’s right to self-determination  In cases of foreign occupation, right to self-determination constitutes a peremptory norm of international law  Obligation of Israel, as occupying Power, not to impede the Palestinian people from exercising its right to self-determination  Israel’s settlement policy and its annexation of large parts of the Occupied Palestinian Territory violates integrity thereof  Israel’s policies and practices obstruct the right of the Palestinian people freely to determine its political status and to pursue its economic, social and cultural development  Prolonged character of Israel’s unlawful policies and practices aggravates violation of right of the Palestinian people to self-determination. * * Effects of Israel’s policies and practices on legal status of occupation. Scope of first part of question (b) and applicable law. Scope of first part of question (b) concerns 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 — Relevance of jus ad bellum and right of peoples to self-determination. Manner in which Israel’s policies and practices affect the legal status of the occupation. Israel’s assertion of sovereignty over and annexation of certain parts of the Occupied Palestinian Territory constitute violation of prohibition of acquisition of territory by force — Israel is not entitled to sovereignty over or to exercise sovereign powers in any part of the Occupied Palestinian Territory — Israel’s security concerns cannot override principle of prohibition of acquisition of territory by force — Israel’s obstruction to the exercise by the Palestinian people of its right to self-determination — Violation of fundamental principles of international law — Direct impact on legality of Israel’s continued presence, as an occupying Power — Israel’s presence in the Occupied Palestinian Territory is unlawful — Illegality relates to entirety of the Palestinian territory occupied by Israel in 1967 — No exception because of Oslo Accords — Unlawfulness of presence does not release Israel from its obligations and responsibilities under international law. * * Legal consequences arising from Israel’s policies and practices and from the illegality of Israel’s continued presence in the Occupied Palestinian Territory. Legal consequences for Israel. Israel obliged to bring an end to its presence in the Occupied Palestinian Territory as rapidly as possible  Obligation to immediately cease all new settlement activity  Obligation to repeal -6- all legislation and measures creating or maintaining the unlawful situation, including those which discriminate against the Palestinian people in the Occupied Palestinian Territory, as well as all measures aimed at modifying the demographic composition of any parts of the territory  Obligation to provide full reparation for the damage caused by Israel’s internationally wrongful acts to all natural or legal persons concerned  Israel remains bound to comply with its obligation to respect the right of the Palestinian people to self-determination and with its obligations under international humanitarian law and international human rights law. Legal consequences for other States. All States must co-operate with the United Nations to put into effect modalities required to ensure an end to Israel’s illegal presence in the Occupied Palestinian Territory and the full realization of the right of the Palestinian people to self-determination  All States under obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory  Obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory  Obligation to distinguish in dealings with Israel between the territory of Israel and the Occupied Palestinian Territory. Legal consequences for the United Nations. Obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory  Obligation to distinguish in dealings with Israel between the territory of Israel and the Occupied Palestinian Territory  Precise modalities to bring to an end Israel’s unlawful presence in the Occupied Palestinian Territory to be dealt with by the General Assembly and the Security Council. ADVISORY OPINION Present: President SALAM; Vice-President SEBUTINDE; Judges TOMKA, ABRAHAM, YUSUF, XUE, BHANDARI, IWASAWA, NOLTE, CHARLESWORTH, BRANT, GÓMEZ ROBLEDO, CLEVELAND, AURESCU, TLADI; Registrar GAUTIER. On the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, THE COURT, composed as above, gives the following Advisory Opinion: -7- 1. The questions on which the advisory opinion of the Court has been requested are set forth in resolution 77/247 adopted by the United Nations General Assembly (hereinafter the “General Assembly”) on 30 December 2022. By a letter dated 17 January 2023 and received in the Registry on 19 January 2023, the Secretary-General of the United Nations officially communicated to the Court the decision taken by the General Assembly to submit these questions for an advisory opinion. Certified true copies of the English and French texts of the resolution were enclosed with the letter. Paragraph 18 of the resolution reads as follows: “The General Assembly,................................................................ 18. Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following questions, considering the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, and the advisory opinion of the Court of 9 July 2004: (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? (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?” 2. By letters dated 19 January 2023, the Registrar gave notice of the request for an advisory opinion to all States entitled to appear before the Court, pursuant to Article 66, paragraph 1, of its Statute. 3. By an Order dated 3 February 2023, the Court decided, in accordance with Article 66, paragraph 2, of its Statute, that the United Nations and its Member States, as well as the observer State of Palestine, were considered likely to be able to furnish information on the questions submitted to it for an advisory opinion, and fixed 25 July 2023 as the time-limit within which written statements on the questions might be presented to it, and 25 October 2023 as the time-limit within which States and organizations having presented written statements might submit written comments on the other written statements. 4. By letters dated 6 February 2023, the Registrar informed the United Nations and its Member States, as well as the observer State of Palestine, of the Court’s decisions and transmitted a copy of the Order to them. 5. Ruling on requests presented subsequently by the League of Arab States, the Organisation of Islamic Cooperation and the African Union, the Court decided, in accordance with Article 66 of its Statute, that those three international organizations were likely to be able to furnish information on the questions submitted to it, and that they therefore might do so within the time-limits fixed by the Court. -8- 6. Pursuant to Article 65, paragraph 2, of the Statute, the Secretary-General of the United Nations, under cover of a letter from the United Nations Legal Counsel dated 31 May 2023 and received in the Registry on 1 June 2023, communicated to the Court the first part of a dossier of documents likely to throw light upon the questions formulated by the General Assembly. The second part of that dossier was received in the Registry on 23 June 2023, under cover of a letter from the United Nations Legal Counsel dated 22 June 2023. Member States of the United Nations, the observer State of Palestine, the League of Arab States, the Organisation of Islamic Cooperation and the African Union were notified of these two communications on 2 and 26 June 2023, respectively. 7. Within the time-limit fixed by the Court in its Order of 3 February 2023, written statements were filed in the Registry, in order of receipt, by Türkiye, Namibia, Luxembourg, Canada, Bangladesh, Jordan, Chile, Liechtenstein, Lebanon, Norway, Israel, Algeria, the League of Arab States, the Syrian Arab Republic, Palestine, the Organisation of Islamic Cooperation, Egypt, Guyana, Japan, Saudi Arabia, Qatar, Switzerland, Spain, the Russian Federation, Italy, Yemen, Maldives, the United Arab Emirates, Oman, the African Union, Pakistan, South Africa, the United Kingdom of Great Britain and Northern Ireland, Hungary, Brazil, France, Kuwait, the United States of America, China, The Gambia, Ireland, Belize, Bolivia, Cuba, Mauritius, Morocco, Czechia, Malaysia, Colombia, Indonesia, Guatemala, Nauru, Djibouti, Togo and Fiji. 8. By a communication dated 28 July 2023, the Registry informed Member States of the United Nations having presented written statements, the observer State of Palestine, as well as the League of Arab States, the Organisation of Islamic Cooperation and the African Union, of the list of participants having filed written statements in the proceedings and explained that those statements could be downloaded from a dedicated web portal managed by the Registry. 9. The President of the Court authorized, on an exceptional basis, the filing of the written statement of Senegal on 1 August 2023 and of the written statement of Zambia on 4 August 2023, after the expiration of the relevant time-limit. 10. By a letter dated 7 August 2023, the Registrar informed the United Nations, and those of its Member States which had not presented written statements, that written statements had been filed in the Registry. 11. By letters dated 18 October 2023, the Registrar informed the United Nations, its Member States and the observer State of Palestine, as well as the League of Arab States, the Organisation of Islamic Cooperation and the African Union, that the Court had decided to hold oral proceedings on the request for an advisory opinion, which would open on 19 February 2024. It was specified that, during the oral proceedings, oral statements and comments could be presented by the United Nations and its Member States (regardless of whether they had submitted written statements and, as the case may be, written comments), the observer State of Palestine, as well as the League of Arab States, the Organisation of Islamic Cooperation and the African Union. The Registrar also invited them to inform the Registry, by 15 December 2023 at the latest, if they intended to take part in the oral proceedings. 12. By letters dated 31 October 2023, the Registrar informed Member States of the United Nations, the observer State of Palestine, the League of Arab States, the Organisation of Islamic Cooperation and the African Union that the United Nations Secretariat had communicated to -9- the Court new documents and certain translations of documents already submitted, as a supplement to the dossier presented in accordance with Article 65, paragraph 2, of the Statute. 13. Within the time-limit fixed by the Court in its Order of 3 February 2023, written comments were filed in the Registry, in order of receipt, by Jordan, the Organisation of Islamic Cooperation, Qatar, Belize, Bangladesh, Palestine, the United States of America, Indonesia, Chile, the League of Arab States, Egypt, Algeria, Guatemala and Namibia. 14. Upon receipt of those written comments, the Registrar, by communications dated 30 October 2023, informed Member States of the United Nations, the observer State of Palestine and international organizations having presented written statements that written comments had been submitted and that those comments could be downloaded from a dedicated web portal managed by the Registry. 15. On 2 November 2023, the President of the Court authorized, on an exceptional basis, the filing of the written comments of Pakistan, after the expiration of the relevant time-limit. Member States of the United Nations and international organizations having submitted written statements, and the observer State of Palestine, were informed thereof by a communication of the same date. 16. By communications dated 2 November 2023, the Registrar informed the United Nations and those of its Member States not having taken part in the written proceedings that the written statements and written comments submitted in the present proceedings could be downloaded from a dedicated web portal managed by the Registry. 17. By communications dated 20 November 2023, the Registrar informed the United Nations, its Member States and the observer State of Palestine, as well as the League of Arab States, the Organisation of Islamic Cooperation and the African Union, that non-governmental organizations had submitted written statements in the present advisory proceedings on their own initiative, pursuant to Practice Direction XII, and that these statements had been made available to them on a web portal managed by the Registry. 18. By letters dated 9 January 2024, the Registrar communicated the list of participants in the oral proceedings to those Member States of the United Nations which were taking part in them, and the observer State of Palestine, as well as the League of Arab States, the Organisation of Islamic Cooperation and the African Union, and enclosed a detailed schedule of the oral proceedings. By the same letters, he also informed them of certain practical arrangements regarding the organization of the oral proceedings. 19. By letters dated 15 January 2024, the Registrar communicated the list of participants in the oral proceedings to the United Nations and those of its Member States which were not taking part in them, and enclosed a detailed schedule of those proceedings. 20. Pursuant to Article 106 of its Rules, the Court decided to make the written statements and written comments submitted to it accessible to the public after the opening of the oral proceedings. - 10 - The written statements and written comments of States not taking part in the oral proceedings would be made accessible to the public on the first day of the oral proceedings. The written statements and written comments of States and organizations taking part in the oral proceedings would be made accessible at the end of the day on which they presented their oral statements. 21. In the course of the oral proceedings held on 19, 20, 21, 22, 23 and 26 February 2024, the Court heard oral statements, in the following order, by: for the State of Palestine: HE Mr Riad Malki, Minister for Foreign Affairs and Expatriates of the State of Palestine, Mr Andreas Zimmermann, LLM (Harvard), Professor, University of Potsdam, member of the Permanent Court of Arbitration, Mr Paul S. Reichler, Attorney at Law, 11 King’s Bench Walk, member of the Bar of the Supreme Court of the United States, HE Ms Namira Negm, PhD, Ambassador, Mr Philippe Sands, KC, Professor of Law, University College London, Barrister, 11 King’s Bench Walk, Mr Alain Pellet, Emeritus Professor, University Paris Nanterre, former Chairperson of the International Law Commission, member and former President of the Institut de droit international, HE Mr Riyad Mansour, Minister, Permanent Representative of the State of Palestine to the United Nations, New York; for the Republic of South Africa: HE Mr Vusimuzi Madonsela, Ambassador of the Republic of South Africa to the Kingdom of the Netherlands, Mr Pieter Andreas Stemmet, Acting Chief State Law Adviser (International Law), Department of International Relations and Cooperation; for the People’s Democratic Republic Mr Ahmed Laraba, jurist, member of the International Law of Algeria: Commission; for the Kingdom of Saudi Arabia: HE Mr Ziad Al Atiyah, Ambassador of the Kingdom of Saudi Arabia to the Kingdom of the Netherlands; for the Kingdom of the Netherlands: Mr René Lefeber, Legal Adviser, Ministry of Foreign Affairs of the Kingdom of the Netherlands, Representative of the Government of the Kingdom of the Netherlands; for the People’s Republic of HE Mr Riaz Hamidullah, Ambassador of the People’s Bangladesh: Republic of Bangladesh to the Kingdom of the Netherlands; - 11 - for the Kingdom of Belgium: Mr Piet Heirbaut, Jurisconsult, Director-General of Legal Affairs, Federal Public Service for Foreign Affairs, Foreign Trade and Development Co-operation of the Kingdom of Belgium, Mr Vaios Koutroulis, Professor of International Law, Université Libre de Bruxelles; for Belize: HE Mr Assad Shoman, Ambassador, Special Envoy of the Prime Minister of Belize responsible for sovereignty matters, Ms Philippa Webb, Professor of Public International Law, King’s College London, member of the Bars of Belize, England and Wales, and the State of New York, Twenty Essex, Mr Ben Juratowitch, KC, member of the Bars of Belize, Paris, and England and Wales, Essex Court Chambers; for the Plurinational State of Bolivia: HE Mr Roberto Calzadilla Sarmiento, Ambassador of the Plurinational State of Bolivia to the Kingdom of the Netherlands; for the Federative Republic of Brazil: Ms Maria Clara de Paula Tusco, Counsellor; for the Republic of Chile: Ms Ximena Fuentes Torrijo, Special Representative of the Republic of Chile; for the Republic of Colombia: Ms Andrea Jiménez Herrera, Minister Counsellor, Head of the Group of Affairs before the International Court of Justice at the Ministry of Foreign Affairs of the Republic of Colombia; for the Republic of Cuba: HE Ms Anayansi Rodríguez Camejo, Deputy Minister for Foreign Affairs; for the Arab Republic of Egypt: Ms Jasmine Moussa, Legal Counsellor, Cabinet of the Minister for Foreign Affairs, Ministry of Foreign Affairs of the Arab Republic of Egypt; for the United Arab Emirates: HE Ms Lana Nusseibeh, Assistant Minister for Political Affairs, Permanent Representative of the United Arab Emirates to the United Nations; for the United States of America: Mr Richard C. Visek, Acting Legal Adviser, United States Department of State; for the Russian Federation: HE Mr Vladimir Tarabrin, Ambassador of the Russian Federation to the Kingdom of the Netherlands; for the French Republic: Mr Diégo Colas, Legal Adviser, Director of Legal Affairs at the Ministry for Europe and Foreign Affairs; for the Republic of The Gambia: Hon. Dawda A. Jallow, Attorney General and Minister of Justice; - 12 - for the Co-operative Republic of Mr Edward Craven, Barrister, Matrix Chambers, London; Guyana: for Hungary: Mr Attila Hidegh, Deputy State Secretary for International Cooperation, Ministry of Foreign Affairs and Trade of Hungary, Mr Gergő Kocsis, Head of the United Nations Department; for the People’s Republic of China: HE Mr Ma Xinmin, Legal Adviser of the Ministry of Foreign Affairs, Director General, Department of Treaty and Law, Ministry of Foreign Affairs; for the Islamic Republic of Iran: HE Mr Reza Najafi, Deputy Foreign Minister for Legal and International Affairs, Ministry of Foreign Affairs; for the Republic of Iraq: HE Mr Hayder Albarrak, Head of the Legal Department of the Ministry of Foreign Affairs; for Ireland: Mr Rossa Fanning, SC, Attorney General; for Japan: Mr Tomohiro Mikanagi, Legal Adviser, Director General, International Legal Affairs Bureau, Ministry of Foreign Affairs, Japan, Mr Dapo Akande, Chichele Professor of Public International Law, University of Oxford, member of the Bar of England and Wales, Essex Court Chambers; for the Hashemite Kingdom of Jordan: HE Mr Ayman Safadi, Deputy Prime Minister and Minister for Foreign Affairs and Expatriates of the Hashemite Kingdom of Jordan, HE Mr Ahmad Ziadat, Minister of Justice of the Hashemite Kingdom of Jordan, Sir Michael Wood, KCMG, KC, member of the Bar of England and Wales, Twenty Essex, London; for the State of Kuwait: HE Mr Ali Ahmad Ebraheem S. Al-Dafiri, Ambassador of the State of Kuwait to the Kingdom of the Netherlands, Agent of the State of Kuwait, HE Mr Tareq M. A. M. Al-Banai, Permanent Representative of the State of Kuwait to the United Nations, HE Ms Tahani R. F. Al-Nasser, Assistant Foreign Minister of Legal Affairs, State of Kuwait; for the Lebanese Republic: HE Mr Abdel Sattar Issa, Ambassador of the Lebanese Republic to the Kingdom of the Netherlands; - 13 - for the State of Libya: Mr Ahmed El Gehani, Libyan Representative to the International Criminal Court, Mr Nasser F. O. Algheitta, Legal Counsellor at the Permanent Mission of the State of Libya to the United Nations Office at Geneva; for the Grand Duchy of Luxembourg: Mr Alain Germeaux, Director of Legal Affairs, Ministry for Foreign and European Affairs of the Grand Duchy of Luxembourg; for Malaysia: HE Dato’ Seri Utama Haji Mohamad Haji Hasan, Minister for Foreign Affairs of Malaysia; for the Republic of Mauritius: HE Mr Jagdish D. Koonjul, Permanent Representative of the Republic of Mauritius to the United Nations, New York, Mr Pierre Klein, Professor of International Law at the Université Libre de Bruxelles; for the Republic of Namibia: Hon. Yvonne Dausab, Minister of Justice, Ms Phoebe Okowa, Professor of Public International Law, University of London, Legal Counsel of Namibia; for the Kingdom of Norway: Mr Kristian Jervell, Director General, Legal Department, Ministry of Foreign Affairs, HE Mr Rolf Einar Fife, ambassadeur en mission spéciale, Ministry of Foreign Affairs; for the Sultanate of Oman: HE Sheikh Abdullah bin Salim bin Hamed Al Harthi, Ambassador of the Sultanate of Oman to the Kingdom of the Netherlands; for the Islamic Republic of Pakistan: HE Mr Ahmed Irfan Aslam, Federal Minister for Law and Justice of the Islamic Republic of Pakistan; for the Republic of Indonesia: HE Ms Retno L. P. Marsudi, Minister for Foreign Affairs of the Republic of Indonesia; for the State of Qatar: HE Mr Mutlaq Bin Majed Al-Qahtani, Ambassador of the State of Qatar to the Kingdom of the Netherlands; for the United Kingdom of Great Ms Sally Langrish, Representative of the United Kingdom Britain and Northern Ireland: of Great Britain and Northern Ireland before the International Court of Justice, Legal Adviser and Director General, Legal, Foreign, Commonwealth & Development Office, Mr Dan Sarooshi, KC, Professor of Public International Law, University of Oxford, member of the Bar of England and Wales, Essex Court Chambers; for the Republic of Slovenia: Mr Helmut Hartman, Legal Adviser, Embassy of the Republic of Slovenia in the Kingdom of the Netherlands, Mr Daniel Müller, Founding Partner of FAR Avocats, member of the Paris Bar; - 14 - for the Republic of the Sudan: Mr Marwan A. M. Khier, Chargé d’affaires, Embassy of the Republic of the Sudan in the Kingdom of the Netherlands, Mr Fabián Raimondo, Associate Professor of Public International Law, Maastricht University, member of the Bar of the City of La Plata, Argentina; for the Swiss Confederation: HE Mr Franz Perrez, Director General, Directorate of International Law, Federal Department of Foreign Affairs; for the Syrian Arab Republic: Mr Ammar Al Arsan, Head of the Permanent Mission of the Syrian Arab Republic to the European Union in Brussels; for the Republic of Tunisia: Mr Slim Laghmani, Professor of Public International Law (retired); for the Republic of Türkiye: HE Mr Ahmet Yıldız, Deputy Minister for Foreign Affairs of the Republic of Türkiye; for the Republic of Zambia: Mr Marshal Mubambe Muchende, State Counsel and Solicitor-General of the Republic of Zambia; for the League of Arab States: Mr Abdel Hakim El Rifai, Chargé d’affaires a.i., Permanent Mission of the League of Arab States in Brussels, Mr Ralph Wilde, Senior Counsel and Advocate; for the Organisation of Islamic HE Mr Hissein Brahim Taha, Secretary-General of the Cooperation: Organisation of Islamic Cooperation, Ms Monique Chemillier-Gendreau, Emeritus Professor of Public Law and Political Science at the University Paris Diderot, Counsel; for the African Union: Ms Hajer Gueldich, Legal Counsel of the African Union, Mr Mohamed Helal, Professor of Law, Moritz College of Law, The Ohio State University, member of the Permanent Court of Arbitration, member of the African Union Commission on International Law; for the Kingdom of Spain: Ms Andrea Gavela Llopis, Head State Attorney, Ministry of Foreign Affairs of the Kingdom of Spain, Mr Emilio Pin Godos, Deputy Head of the International Legal Office, Ministry of Foreign Affairs of the Kingdom of Spain, Mr Santiago Ripol Carulla, Head of the International Legal Office, Ministry of Foreign Affairs of the Kingdom of Spain; for the Republic of Fiji: HE Mr Filipo Tarakinikini, Permanent Representative of the Republic of Fiji to the United Nations, New York; - 15 - for the Republic of Maldives: HE Ms Aishath Shaan Shakir, Ambassador of the Republic of Maldives to the Federal Republic of Germany, Ms Amy Sander, Essex Court Chambers, member of the Bar of England and Wales, Ms Naomi Hart, Essex Court Chambers, member of the Bar of England and Wales. 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). A. Jurisdiction 23. The Court’s jurisdiction to give an advisory opinion is based on Article 65, paragraph 1, of its Statute, which provides that “[t]he Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request”. 24. The Court notes that pursuant to Article 96, paragraph 1, of the Charter, the General Assembly “may request the International Court of Justice to give an advisory opinion on any legal question”. 25. The Court must satisfy itself, in accordance with the requirement in Article 96 of the Charter and Article 65 of its Statute, that the question on which it is requested to give its opinion is a “legal question”. 26. All the participants who addressed this issue have expressed the view that the Court has jurisdiction to give the advisory opinion and that the questions contained in paragraph 18 of resolution 77/247 are legal questions. 27. In the present proceedings, the General Assembly put two questions to the Court (see paragraph 1 above). These questions relate first to the legal consequences arising from certain policies and practices of Israel as an occupying Power in a situation of belligerent occupation since 1967. Secondly, they relate to how such policies and practices affect the legal status of the occupation in light of certain rules and principles of international law and to the legal consequences which arise from this status. The Court considers that these questions are legal questions. - 16 - 28. In light of the above, the Court concludes that the request has been made in accordance with the provisions of the Charter and of the Statute of the Court and therefore that it has jurisdiction to render the requested opinion. 29. However, in the course of these proceedings, diverging views have been expressed as to whether the questions asked are clearly and precisely formulated. While some participants consider that the questions are clear and precise, others are of the view that not all aspects of the questions are presented in a clear way. The Court notes that “lack of clarity in the drafting of a question does not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in interpretation, and such necessary clarifications of interpretation have frequently been given by the Court.” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 153-154, para. 38.) In the present case, the Court sees no reason to reformulate the questions. However, the Court will interpret the questions put to it wherever clarification may be necessary. B. Discretion 30. The fact that the Court has jurisdiction to give an advisory opinion does not mean that it is obliged to exercise it. Article 65, paragraph 1, of the Statute provides that “[t]he Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request”. As the Court has repeatedly emphasized, this “should be interpreted to mean that the Court has a discretionary power to decline to give an advisory opinion even if the conditions of jurisdiction are met” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), pp. 415-416, para. 29). However, given its functions as the principal judicial organ of the United Nations, the Court considers that its answer to a request for an advisory opinion “represents its participation in the activities of the Organization, and, in principle, should not be refused” (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 113, para. 65). 31. In accordance with its jurisprudence, only compelling reasons may lead the Court to refuse to give its opinion in response to a request falling within its jurisdiction (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 113, para. 65). In view of the fact that some participants in the present proceedings have argued that there are compelling reasons for the Court to decline to give its opinion, the Court will address these arguments below. 32. The arguments raised by these participants may be categorized as follows: (1) the request for an advisory opinion relates to a dispute between two parties, one of which has not consented to the jurisdiction of the Court; (2) the opinion would not assist the General Assembly; (3) the opinion may undermine the Israeli-Palestinian negotiation process; (4) an advisory opinion would be detrimental to the work of the Security Council; (5) the Court does not have sufficient information to enable it to give an advisory opinion; and (6) the questions are formulated in a biased manner. The Court will examine each of these arguments in turn. - 17 - 1. Whether the request relates to a dispute between two parties, one of which has not consented to the jurisdiction of the Court 33. It has been argued by some participants that the Court should decline to render an advisory opinion because the request concerns a bilateral dispute between Palestine and Israel, and the latter has not consented to the jurisdiction of the Court to resolve that dispute, as evidenced by Israel’s vote against resolution 77/247 and its written statement in the present proceedings. The majority of participants have, however, submitted that rendering an advisory opinion would not circumvent the principle of consent, as the questions put to the Court do not primarily concern a bilateral dispute. In the view of most of these participants, the subject-matter of the General Assembly’s request, although it involves Israel and Palestine, concerns the responsibilities of the United Nations and wider questions of international peace and security, as well as certain obligations erga omnes of States. 34. The Court recalls that there would be a compelling reason for it to decline to give an advisory opinion when such an opinion “would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent” (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 25, para. 33; see also Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 117, para. 85). However, the fact that, in the course of its reasoning, and in order to answer the questions submitted to it, the Court may have to pronounce on legal issues upon which divergent views have been expressed by Palestine and Israel does not convert the present case into a bilateral dispute (see 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. 24, para. 34). 35. The Court does not regard the subject-matter of the General Assembly’s request in the present case as being only a bilateral matter between Israel and Palestine. 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 (see paragraphs 51-52 below). Since resolution 181 (II) concerning the partition of Palestine was adopted by the General Assembly in 1947, the Palestinian question has been before the General Assembly, which has considered, debated and adopted resolutions on it almost annually. Thus, this issue is a matter of particular interest and concern to the United Nations. It has been described by the General Assembly as “a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy” (General Assembly resolution 57/107 of 3 December 2002). The Court therefore considers that the issues raised by the request are part of the Palestinian question, including the General Assembly’s role relating thereto (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 159, para. 50; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 118, para. 88). Consequently, the Court cannot, in the exercise of its discretion, decline to give the opinion requested on the ground of circumventing the principle of consent to judicial settlement. 2. Whether the Court’s opinion would assist the General Assembly in the performance of its functions 36. It has been argued by one of the participants that the Court should decline to reply to the questions put to it because the General Assembly is not seeking the Court’s opinion on a matter with which it requires assistance, but rather seeks the Court’s confirmation of particular legal conclusions - 18 - relevant to the resolution of a bilateral dispute between Palestine and Israel. Other participants who have addressed the question have maintained that the Court should not decline to give its opinion on this ground because the purpose of the present request is to obtain an advisory opinion which will be of assistance to the General Assembly in the exercise of its functions. These participants have argued that the matters under consideration are of long-standing importance to the work of the General Assembly, which will therefore find value in the Court’s opinion on certain legal questions. 37. As the Court has observed in the past, “it is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly for the performance of its functions. The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs.” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 237, para. 16.) The Court cannot substitute its own assessment of the need for such an opinion with that of the organ requesting it (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 163, para. 62). The Court has consistently held in its jurisprudence that “advisory opinions have the purpose of furnishing to the requesting organs the elements of law necessary for them in their action” (ibid., p. 162, para. 60). In the present instance, the request is put forward by the General Assembly with reference to its own responsibilities and functions regarding the issue of the Occupied Palestinian Territory (see A/RES/77/247). The Court does not therefore consider that there is a compelling reason that should lead it to decline to give its opinion on the ground that such an opinion would not assist the General Assembly in the performance of its functions. 3. Whether the Court’s opinion may undermine the negotiation process between Israel and Palestine 38. Some participants have contended that the Court should decline to reply to the questions put to it because an advisory opinion from the Court would interfere with the Israeli-Palestinian negotiation process laid out by the framework established in the 1993 Declaration of Principles on Interim Self-Government Arrangements (hereinafter the “Oslo I Accord”) and the 1995 Interim Agreement on the West Bank and the Gaza Strip (hereinafter the “Oslo II Accord”), and may exacerbate the Israeli-Palestinian disagreement, thereby compromising the outcome of negotiations. 39. In the view of other participants, an advisory opinion from the Court would not interfere with the negotiation process and the Court should not decline to give one on this basis. They have suggested that, on the contrary, an opinion from the Court is all the more necessary in light of the fact that Israeli-Palestinian negotiations have been stalled for many years. 40. In the present circumstances, the question of whether the Court’s opinion would have an adverse effect on a negotiation process is a matter of conjecture. The Court cannot speculate about the effects of its opinion. In response to a similar argument in another case, the Court stated: “It has... been submitted that a reply from the Court in this case might adversely affect disarmament negotiations and would, therefore, be contrary to the interest of the United Nations. The Court is aware that, no matter what might be its conclusions in any - 19 - opinion it might give, they would have relevance for the continuing debate on the matter in the General Assembly and would present an additional element in the negotiations on the matter. Beyond that, the effect of the opinion is a matter of appreciation. The Court has heard contrary positions advanced and there are no evident criteria by which it can prefer one assessment to another.” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 237, para. 17.) In light of the foregoing, the Court cannot regard this factor as a compelling reason to decline to respond to the General Assembly’s request. 4. Whether an advisory opinion would be detrimental to the work of the Security Council 41. It has been contended by some participants that the Court should exercise its discretion to decline to answer the questions before it, while others have argued that, even if the Court were to reply to these questions, it should take care that its reply does not interfere with the established framework for negotiations, since it is the Security Council, and not the General Assembly, which has primary responsibility for issues relating to the Israeli-Palestinian conflict. According to these participants, an advisory opinion from the Court could negatively affect or interfere with the negotiation framework that the Security Council has established for resolution of the dispute. Other participants who have addressed the question have argued that the Court’s opinion would not be detrimental to the work of the Security Council. In their view, the Security Council does not have exclusive responsibility under the Charter with respect to the maintenance of international peace and security, since the General Assembly may also address, alongside the Security Council, issues of such concern. 42. This argument is similar to the one examined in section 3 above, in so far as the negotiating framework is concerned, but also concerns the respective competences of the Security Council and the General Assembly in the maintenance of international peace and security. The Court addressed the latter issue in its Wall Advisory Opinion as follows: “Under Article 24 of the Charter the Security Council has ‘primary responsibility for the maintenance of international peace and security’” (I.C.J. Reports 2004 (I), p. 148, para. 26). However, the Court emphasized that “Article 24 refers to a primary, but not necessarily exclusive, competence” (ibid.). The General Assembly has the power, inter alia, under Article 14 of the Charter to “recommend measures for the peaceful adjustment of any situation”. The Court further stated that “there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security” and that this “accepted practice of the General Assembly, as it has evolved, is consistent with Article 12, paragraph 1, of the Charter” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 149-150, paras. 27-28). This is indeed the case with respect to certain aspects of the Palestinian question. 43. The Court also recalls that Article 10 of the Charter confers on the General Assembly a competence relating to “any questions or any matters” within the scope of the Charter and that Article 11, paragraph 2, specifically provides it with competence to “discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations”. This is the case with respect to the questions posed by the General Assembly in the present proceedings. As the Court has stated previously, - 20 - “[w]here, as here, the General Assembly has a legitimate interest in the answer to a question, the fact that that answer may turn, in part, on a decision of the Security Council is not sufficient to justify the Court in declining to give its opinion to the General Assembly” (Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 423, para. 47). As pointed out in paragraph 40 above, whether the opinion of the Court would have an adverse effect on the negotiation framework is a matter of conjecture on which the Court should not speculate. Moreover, in view of the fact that the General Assembly has the competence to address matters concerning international peace and security, such as those raised in the questions it has posed, there is no compelling reason for the Court to decline to give the requested opinion. 5. Whether the Court has sufficient information to enable it to give an advisory opinion 44. Some participants have raised the argument that the Court should decline to give an opinion because it lacks sufficient information and would have to embark on a fact-finding mission covering a period of decades in order to answer the questions put to it by the General Assembly. 45. It has, however, been contended by other participants that the Court has sufficient information and evidence in the record before it and in publicly available documentation to properly assess the questions of fact that are relevant and necessary for answering the legal questions put to it. In this respect, they have referred to the dossier submitted to the Court by the Secretary-General of the United Nations and to the written and oral statements of participants in the present proceedings. 46. In its Opinion concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 72), and in its Opinion on Western Sahara, the Court made it clear that what is decisive in these circumstances is whether the Court has before it sufficient information “to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character” (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 28-29, para. 46). The discretion of the Court is exercised in order to protect the integrity of its judicial function and it is for the Court to assess, in each case, the nature and extent of the information required for it to perform its judicial function. 47. In the present case, over 50 States and international organizations have submitted information relevant to a response to the questions put by the General Assembly to the Court. The Court notes in particular that Israel’s written statement, although mainly related to issues of jurisdiction and judicial propriety, contained information on other matters, including Israel’s security concerns. The Court has also reviewed a voluminous dossier submitted by the Secretary-General of the United Nations, which contains extensive information on the situation in the Occupied Palestinian Territory. It is for the Court to assess the sufficiency of the information available to it. In the present case, the Court considers that it has before it sufficient information to decide legal questions in a manner consistent with its judicial function. Consequently, there is no compelling reason for it to decline to give the requested opinion on this ground. - 21 - 6. Whether the questions are formulated in a biased manner 48. It has been argued by some participants that the questions put to the Court have been presented in a biased manner in that they assume the existence of violations of international law by Israel. These participants therefore contend that the Court should decline to answer them. Other participants have contested the characterization of the questions as biased or imbalanced. 49. The Court recalls, in the first instance, that it has the power to interpret and, where necessary, reformulate the questions put to it (see paragraph 29 above). It is therefore for the Court to appreciate and assess the appropriateness of the formulation of the questions. The Court may also, where necessary, determine for itself the scope and the meaning of the questions put to it. In the present case, the Court does not consider that the General Assembly intended to restrict the Court’s freedom to determine these issues. The Court will ascertain for itself whether Israel’s policies and practices are in violation of the applicable rules and principles of international law, before determining the legal consequences of any such violations. Consequently, the Court cannot, in the exercise of its discretion, decline to give its opinion on the ground that the questions put to it are biased or imbalanced. * 50. In light of the foregoing, the Court concludes that there are no compelling reasons for it to decline to give the opinion requested by the General Assembly. 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, “[c]ertain communities, formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone”. 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 - 22 - 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 “[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”. 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 - 23 - “all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section, are totally invalid and cannot change that status”. 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 - 24 - 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 “the intensification and acceleration of international and regional diplomatic efforts and support aimed at achieving without delay a comprehensive, just and lasting peace in the Middle East on the basis of the relevant United Nations resolutions, the Madrid terms of reference, including the principle of land for peace, the Arab Peace Initiative and the Quartet Roadmap and an end to the Israeli occupation that began in 1967”. - 25 - 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 “its unwavering commitment to the vision of 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, and in this regard stresse[d] the importance of unifying the Gaza Strip with the West Bank under the Palestinian Authority”. 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: “(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? (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 - 26 - 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 “(1) the source of the item of evidence (for instance partisan, or neutral), (2) the process by which it has been generated (for instance an anonymous press report or the product of a careful court or court-like process), and (3) the quality or character of the item (such as statements against interest, and agreed or uncontested facts)” (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. 135, para. 227; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Judgment of 31 January 2024, para. 175). 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). - 27 - 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, - 28 - 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: “the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, and the advisory opinion of the Court of 9 July 2004.”

ICJ Advisory Opinion on Israel & Palestine (2024) PDF

Document Details

Tags

Related

Summary

Full Transcript

Upgrade to continue