The ICJ Ruling on Israel's Occupation: What It Means and What Comes Next

What was the ICJ asked to adjudicate? What did the ICJ decide? And what are the ramifications of this decision, and how might it serve to finally bring some measure of justice?

Jul 21, 2024

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The International Court of Justice rendered a decision Friday addressing sweeping questions about Israel’s occupation and its actions toward the Palestinians. There is a lot to sort through in the ICJ’s decision, but it is momentous and will lay the groundwork for actions, legal cases, and politics around Israel going forward.

Three broad questions demand examination. One, what exactly was the ICJ asked to adjudicate in this case? It was not so simple as “Is Israel’s occupation illegal?” or “Is Israel guilty of apartheid?”

Two, what exactly did the ICJ decide? This Court, we must always remember, is a legal, not a political body, despite the ridiculous characterizations of it by Israel, the United States, and their vast array of supporters, collaborators, and useful idiots.

And finally, what are the ramifications of this decision going forward, and how might it serve to finally bring some measure of justice and hope to the people of the West Bank and Gaza Strip?

What was the ICJ asked to rule on?

On December 30, 2022, the United Nations General Assembly requested an advisory opinion from the ICJ. They wanted an opinion on what exactly the legal ramifications of Israel’s violations of the Palestinians’ right to self-determination and “its adoption of related discriminatory legislation and measures “were. They also asked what that meant in terms of the occupation as a whole and what the resulting responsibilities of UN member states and the UN itself were.

This translates into the big questions. The issue of “discriminatory legislation and measures” refers to several matters, but most pertinently, it means to ask whether Israel, in the opinion of the ICJ is guilty of the crime of apartheid under international law.

The broader questions of legal ramifications what Israel’s violations of the laws of occupation might imply touch on the legality of Israel’s prolonged occupation and what states are required to do in response to all of this.

The term “Israel’s illegal occupation” has frequently been used in support of the Palestinians. But until now, it has been nebulous. A military occupation is not, in and of itself, a violation of international law. In fact, large segments of International Humanitarian Law—the so-called “laws of war”—are meant to regulate occupation. This clearly shows that occupation cannot itself be illegal, because if it were there would be no need for any further regulation. Everything about it would be illegal.

A belligerent, military occupation—which even Israel’s own High Court of Justice has ruled is the definition of Israel’s control of the Occupied Palestinian Territories—is meant to be a temporary condition, and it is expected that it will end as soon as possible. The problem is that the law never defined “temporary.” As a result, and as the ICJ affirmed in this decision, the fact that Israel’s occupation has gone on for 57 years alone does not make it illegal.

But the Court also pointed out that neither does the extraordinary length of time of this occupation change the laws that govern occupation. That notion, which Israel never explicitly argued, but is implicit in their policies, actions, and rhetoric, has formed the basis of Israel’s defense when it is accused of violating international law with its settlements, land confiscations, and other crimes against the Palestinian people.

Moreover, any occupation is only legal inasmuch as it is temporary and not an attempt to acquire territory through the use of force. Israel’s actions from the very first day of the occupation suggest that permanent annexation of certain territory and ongoing control of other areas are its goals. If so, the occupation is, indeed, illegal.

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What the ICJ decided

The ICJ opinion first disposed of the arguments raised that questioned its jurisdiction and whether it should agree to consider the issues raised. It then made its first key ruling: that the West Bank, including East Jerusalem, and Gaza were all one territorial unit, and that all of that territorial unit was under some degree of Israeli occupation. This has powerful implications for the separate case regarding Gaza and the question of genocide.

While this opinion did not consider any of the events since October 7, it will impact the question of self-defense regarding Israel’s actions since that day, which Israel and its allies claim is what Israel has engaged in since that day.

But an occupying power cannot act militarily in self-defense against the people it occupies as it can against an external enemy. It can maintain order, and it has a responsibility to do all it can to ensure the security of all the people under its authority. That includes its citizens and non-citizens living under its control, equally. Israel has the responsibility to maintain law and order, but it does not have the right to elevate the security of some of the people under its control over others.

Israel can relieve itself from any obligations for the security of Palestinians by ending its occupation. To the extent it does so, it has no responsibility. For example, as the ICJ reiterates in this decision, Gaza was still under Israeli occupation after it withdrew its settlements and military from inside the boundaries of the Strip because it still controlled the borders, the coastline, and the airspace and could, therefore, control virtually everything and everyone that entered or exited Gaza. As such, Gaza was still occupied, but since Israel was not present inside the boundaries of Gaza and did not exercise authority there, internal security matters such as policing were not its responsibility.

People under belligerent military occupation have the right to resist, although, as Human Rights Watch was the latest to point out, that right has limits which were exceeded on October 7. Israel has the right to ensure the safety of its citizens, but it does not have the right to treat Gaza as an enemy state when it is under Israel’s occupation.

In war, there is the obligation to distinguish between combatants and civilians and to do all that is possible to avoid civilian casualties. But in the case of Gaza and the West Bank, Israel’s responsibility goes further than that. It is not just responsible for making the distinction between combatants and civilians, it is responsible for the well-being of the civilians as well. That speaks to the responsibility to not just avoid destroying the civilian infrastructure, but to do all it can to maintain that infrastructure in good working order.

The ICJ has made it clear just how short Israel has fallen in that regard, and it will matter when it renders its opinion on the genocide case before it.

The bulk of the ICJ decision was aimed at Israel’s occupation of the West Bank. The Court affirmed the illegality of Israeli settlements, as a violation of the Fourth Geneva Convention and the Hague Regulations. The confiscation of Palestinian land; diversion (read: theft) of resources; the intentional transfer of Israeli civilians into the occupied territory; and the denial of Palestinians’ right to self-determination were all specific violations of those international statutes.

The ICJ also declared that the length of time the occupation has covered does not change any of the regulations enshrined in international humanitarian law. On the contrary, the Court noted that over the decades of occupation, Israel has annexed East Jerusalem de jure and other territories de facto. The Court ruled that the confiscation of land which was then turned over to settlers, and the use of that land for infrastructure for settlements was effectively annexing it, especially in light of the decisions to extend Israeli civilian law over those areas. The Court bluntly stated that these confiscations cannot be considered temporary measures, given the use to which they have been put.

All of this led to the ICJ ruling that Israel intends to remain in control of the Occupied Territories. This contravenes the principle of the inadmissibility of acquisition of land by force, the most fundamental principle in international law. The ICJ further ruled that these practices amount to violations of Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination. They emphasized segregation and apartheid in that decision.

The Court stated bluntly that whatever security concerns Israel might have cannot negate the basic rights under international law that the Palestinians, like all other people, are entitled to. They stated that Israel must end its occupation as soon as possible; must dismantle all parts of its wall that are built beyond its internationally recognized border; must repair the damage it has done; return what it has stolen; and make reparations for the harm it has done to the Palestinians, collectively and individually.

The Court further stated that all other states are obligated not to recognize as legal any part of Israel’s presence in the Occupied Territories and not to aid Israel in remaining there in any way.

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What will happen next?

Realistically, we know Israel will not adhere to the ICJ’s ruling and will have the full backing of the United States in rejecting it. Israeli Prime Minister Benjamin Netanyahu has already responded by saying that Israelis “cannot be occupiers in their own land,” as if the presence of Jews, among so many other peoples that have been in Palestine over the millennia (I can’t recommend Nur Mashala’s seminal work, Palestine: A Four Thousand Year History strongly enough for insight into Palestine’s remarkably diverse history) means Zionism was entitled to simply uproot millions of Palestinians, take their homes, and place them under martial law and military occupation for all these years.

The United States has so far offered muted criticism of the ruling, simply saying that “…we are concerned that the breadth of the court’s opinion will complicate efforts to resolve the conflict and bring about an urgently needed just and lasting peace, with two states living side-by-side in peace and security.” But the ruling, coming as it did in mid-summer, just after the end of the Republican National Convention, and amid swirling controversy over Joe Biden’s continued campaign, is likely to generate a much fiercer reaction, especially after Netanyahu speaks before Congress this week.

With the defiance from Israel and its superpower patron, it’s too much to hope for that the ICJ ruling is going to have an immediate effect on the ongoing genocide in Gaza, the escalating war crimes in the West Bank, or the growing consolidation of Israeli control in East Jerusalem.

But the ruling is going to be helpful for legal efforts in many European countries to put the brakes on European trade and support to Israel that help sustain the occupation. It will also significantly impact Israel’s already tattered image in Europe, and even in some sectors of the U.S., Canada, Australia, and other western states. This will have increased, long-term effects on investment and trade in Israel, even given that the U.S. will try to pressure countries and corporations to continue, or even increase, its business with Israel.

Even the United States may, after a time, find it more difficult to go along, as it has so thoroughly, with Israel’s determined efforts to erase the distinction between the settlements and the State of Israel within its recognized borders.

As the Israeli human rights lawyer, Michael Sfard, put it, “In the coming weeks and months, we can expect many instances in which various countries will reconsider the nature of their relations with Israel: commercial, military, economic, and diplomatic relations. Ostensibly, their duty is to differentiate between Israel within the Green Line and settlements in the Occupied Territories, but when Israel itself erases the Green Line, the change in relations could include Tel Aviv.

“The law’s distinctive power is that in many cases it serves as a joker card that can leap over political difficulties and interests and is capable of nullifying them in appropriate cases. In our case, it will also help political leaders who find it politically difficult to act negatively towards Israel but privately want it, now they can say, ‘I have no choice, this is a matter of law.’” (Thanks to Sol Salbe for the translation).

In a world where we have gone for nearly eight decades with virtually no international action on behalf of the Palestinian people, that certainly describes a major landmark, even a breakthrough, which could mark a real turning of the tide. In a time of the utmost despair, the ICJ has provided a glimmer of hope.

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