By Prof. (Dr.) Bharat H Desai
On July 19, 2024, the International Court of Justice (ICJ) finally delivered its historic advisory opinion on “Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem”. As the principal judicial organ of the United Nations, the ICJ was requested by the UN’s plenary organ, the General Assembly (vide resolution 77/247 of December 30, 2022 (adopted by 87-26-53 votes), to render a legal opinion on the Occupied Palestinian Territory (OPT). The 17-page omnibus resolution had designated Israel as “occupying power” and expressed grave concern about the “continuing systematic violation of the human rights of the Palestinian people by Israel”. It invoked application of International Humanitarian Law including the Fourth Geneva Convention Relative to the Protection of Civilians in Time of War (August 12, 1949) to the OPT including East Jerusalem.
In its 74 page (285 paragraph) advisory opinion, the ICJ unanimously decided that “it has jurisdiction” to give the legal opinion sought by the UNGA. In its considered advisory opinion, the Court upheld the majesty of International Law by unanimously affirming the cardinal principle of the “inadmissibility of the acquisition of territory by force”. In many respects the opinion of the Court is unprecedented. Moreover, this advisory opinion effectively builds upon the previous advisory opinion given by the Court, exactly 20 years ago (July 9, 2004): entitled: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory . Out of the 15 judges of the Court, 14 judges (including President Salam) appended their separate opinions, individual or joint declarations. Only dissenting opinion has been given by Vice-President Sebutinde. Notably, the only judge who chose not to express any separate opinion or append a declaration (to explain reasons for his vote) is Judge Dalveer Bhandari. In every such ICJ advisory opinion with ramifications in the field of International Law, sitting judges do make it a point to be part of the history by expressing their considered legal views that could not be reflected in the main consensual advisory opinion. Possibly, as it is widely surmised, lack of sound background in International Law (as a former judge in India) deterred Judge Bhandari from expressing his separate views on the subject. It seems, Judge Bhandari has rarely explained reasons for his vote in favor or against the ICJ majority judgements in contentious and advisory opinion proceedings during 12 long years (2012-2024) on the ICJ bench (with 3 more years to go).
Invoking Legal Technique of ICJ Advisory Opinions
The UN Charter has explicitly conferred competence (Article 96) on the UNGA to “request the International Court of Justice to give an advisory opinion on any legal question”. In turn, the Court has competence under Article 65 of its own Statute to render an advisory opinion. In making the request for an advisory opinion on the OPT, the UNGA as a plenary organ, with 193-member states had spread a very wide canvass for the UN’s principal judicial organ to examine the legal issues on the basis of 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 as well as the ICJ Advisory Opinion of July 9, 2004 in the Wall case.
Over the years, the Palestine question has witnessed many ups and downs including direct negotiations between the Israeli Government and the Palestinian Authority (initially headed by late PLO Chairman Yasser Arafat and now President Mahmoud Abbas). Many interlocutors played roles for its resolution starting with the UN Mediator in Palestine (vide UNGA resolution resolution 186 of 14 May 1948) Count Folke Bernadotte who was assassinated on September 17, 1948 by the Jewish militia Stern Gang of the time. It led to the celebrated (April 11, 1949) ICJ Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations (Reparation for Injuries Suffered in the Service of the United Nations | International Court of Justice (icj-cij.org).
In providing legal opinions as well as through interpretation and elaboration of complex questions of the time, the ICJ has made enormous contribution. Article 65 (ICJ Statute) empowers the Court to “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 a corollary, such legal questions need to be “laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required”. Upon receipt of the request the Court calls upon the UN member states and others to provide written and oral statements on the issue at stake. Neither the ICJ is bound to give an opinion nor the requesting organ is under any obligation to adhere to the Court’s legal opinion. Notwithstanding this, the ICJ has, as the practice show, always provided an opinion sought by the UNGA and, in turn, it has accepted in letter and spirit the opinions rendered by the ICJ.
The UNGA Requests: Two Legal Questions
The UNGA resolution came in the wake of the Human Rights Council resolution S - 30/1 of May 27, 2021 (24 in favor, 9 against, 14 abstention) as well as report of the GA mandated (resolution 76/80 of December 9, 2021) Special Committee to Investigate Israeli Practices Affecting the Palestinian People. The Special Committee has given six reports during 2018-2023 including the latest on November 03, 2023 (A/78/553). The UNGA reiterated that all measures and actions taken by Israel, the occupying Power, in the Occupied Palestinian Territory, including East Jerusalem, in violation of the relevant provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and contrary to the relevant resolutions of the Security Council, are illegal and have no validity. It has demanded that Israel, the occupying Power, comply fully with the provisions of the Fourth Geneva Convention of 1949 and cease immediately all measures and actions taken in violation and in breach of the Convention.
The UNGA resolution (77/247 of December 30, 2022) comprised two well-calibrated concrete legal questions that encapsulate the entire history of the vexed Palestinian question. It shows drafting dexterity, expectation from the Court and the indication of future trajectory for resolution of the issue:
(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?
The UNGA request (transmitted to the ICJ on January 17, 2023) for an ICJ advisory opinion reflected an audacity of hope for the OPT. Palestine remains the oldest problem inherited by the United Nations (UN) from its predecessor the League of Nations. In a divided world, it vividly reflects the relevance of the UN as well as underscores the relevance and working of International Law for resolution of long-standing intricate global problems. In a communication of January 17, 2023 to the ICJ President Joan E. Donoghue, the UN Secretary-General (UNSG) Antonio Guterres transmitted the General Assembly resolution 77/247 of December 30, 2022. The resolution has explicitly recalled the previous UNGA requested ICJ advisory opinion (July 9, 2004) entitled: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
The connoisseurs of International Law have marveled at the sheer engineering skills marshalled by the ICJ (largely due to election of outstanding International Law scholars with wider horizons as judges) in the development of International Law. In addressing the requests for advisory opinions, ICJ has sought to dabble into some of the most contentious issues jettisoning the issues of legal and political content of the questions presented to it. For instance, the ICJ advisory opinion (July 08, 1996) of Legality of the Threat or Use of Nuclear Weapons witnessed the Court vertically split (paragraph 105 (2) E; seven votes to seven; adopted by the President’s casting vote). In doing so, the ICJ took the proverbial “cannot conclude definitively” (do not know; नरो व कुन्ज्रोव) approach and observed: “in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.” However, in his concerted view on the Advisory Opinion, this author stated at the time that the ICJ brought in “an extraneous factor into the picture and creates doubts about the existence of law on a question, which was not even asked by the General Assembly. Here, the Court has clearly exceeded its jurisdiction. At best it can only be regarded as obiter dictum and not a finding of non liquet” (Bharat H. Desai, “Non Liquet and the ICJ Advisory Opinion on the Legality of the Threat or Use of Force: Some Reflections”, Indian Journal of International Law 37 (2) 1997, p. 217).
The ICJ Opinion on the OPT
Even though the Court was not explicitly asked by the UNGA to pronounce upon the quest for ‘statehood’ by Palestine, it chose to throw its weight behind it and observed: “realization of the right of the Palestinian people to self-determination, including its right to an independent and sovereign State living side by side in peace with the State of Israel within secure and recognized borders for both States, as envisaged in resolutions of the Security Council and General Assembly.” (paragraph 283). In doing so, the Court endorsed the political formulation normally propounded by the UNGA. Having delivered its two Advisory Opinions (2004; 2024), the Court seems to be inclined to suggesting a way out and “precise modalities to bring to an end Israel’s unlawful presence in the Occupied Palestinian Territory is a matter to be dealt with by the General Assembly” (paragraph 281). Some of the key elements of the ICJ’s concerted opinion can be culled out as follows:
a) the State of Israel’s continued presence in the OPT is unlawful;
b) the State of Israel is under an obligation to end its unlawful presence in the OPT as rapidly as possible;
c) the State of Israel is under an obligation to cease immediately all new settlement activities, and to evacuate all settlers from the OPT;
d) the State of Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned in the OPT;
e) all States are under an obligation not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the OPT and not to render aid or assistance in maintaining the situation created by the continued presence of the State of Israel in the OPT;
f) international organizations, including the United Nations, are under an obligation not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the OPT;
g) the United Nations, and especially the General Assembly, which requested the opinion, and the Security Council, should consider the precise modalities and further action required to end as rapidly as possible the unlawful presence of the State of Israel in the OPT.
Cumulatively, the significance of the OPT advisory opinion (July 19, 2024) lies in drawing the legal contours of the International Law on Belligerent Occupation. The crux of the law lies in rejecting any territorial claims resulting from conflict driven occupations. Most cases of such occupations by force remain for long periods. Therefore, a State having legitimate claims of sovereignty over a territory that comes to be forcibly occupied by another State cannot be deprived of its territory. Irrespective of the length of such ‘belligerent’ occupation, it does not confer title to the territory to the occupying power. Such occupying power cannot seize land and other immovable property, cultural property and assets including archives and documents or make any demographic changes and forcibly transfer civilian population. The work and reports of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories (set up vide UNGA resolution 76/80 of December 9, 2021) became crucial reference point in affixing responsibility of Israel as an occupying power in the OPT. This has been construed as an “internationally wrongful act” (ILC Articles on Responsibility of States for internationally wrongful acts; adopted vide UNGA resolution 56/83 of December 12, 2001). It has been of a continuous character adding to the gravity of violations of International Law. It enjoins upon Israel “to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law” (ICJ Wall Opinion 2004; paragraph 149). This forms central feature of the OPT and obligations of Israel as an occupying power.
The significance of the International Law on Belligerent Occupation lies in its application to many such territories that still remain in control of the occupying powers. The Court has also drawn upon view of the Security Council and the state practice reflected in its resolutions (465 of March 1, 1980; 2334 of December 23, 2016) that “it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations.” In view of this emphatic legal position, the Court has spelled out the obligation of the UN Member States “not to recognize any changes in the physical character or demographic composition, institutional structure or status of the territory occupied by Israel on 5 June 1967, including East Jerusalem” (paragraph 278). Similarly, the “duty of non-recognition” also applies to international organizations, including the United Nations, in view of the serious breaches of obligations erga omnes under international law” (paragraph 280). After adjudging illegality of continued presence of Israel in the OPT, the ICJ has dwelled upon an elaborate menu of “legal consequences” for Israel, other states and the United Nations (Part VII; paragraphs 265-283) arising from Israel’s policies and practices and from the illegality of Israel’s continued presence in the occupied Palestinian territory.
As a principal organ of the UN, the Court has made a historic contribution in defining contours of illegality of the policies and practices of Israel as an occupying power in the “entirety of the Palestinian territory occupied by Israel in 1967”. The Court's legal opinion provides clarity as regards legal status of the entity of Palestine (recognized as a non-member observer state in the UN) that would strengthen its arms in any future negotiated settlement. It also provides concrete basis to judge legality and return of the occupied territories to the legitimate sovereign states in many other cases of ‘belligerent occupations’ around the world.
Calibrating the Indian Position
India abstained in the UNGA resolution (77/247 of December 30, 2022) and chose not to make any written statement in the OPT advisory opinion proceedings. India earlier provided a written statement (June 20, 1995) for the advisory opinion (July 8, 1996) on Legality of the Threat or Use of Nuclear Weapons. Similarly, India has recently filed a written statement (March 28, 2024) in the pending UNGA request for an advisory opinion proceedings on Obligations of States in Respect of Climate Change. India has stakes in legal calibration of ‘belligerent occupation’ as a follow up to the ICJ advisory opinion on the OPT (July 19, 2024) since India has consistently laid legal claims to the Pakistan Occupied Kashmir (POK). As underscored by this author (EPW (vol. 52, no.5, February 4, 2017), the legal basis for this Indian claim is premised upon the “title to the entire territory of erstwhile princely state of Jammu and Kashmir, as reflected in the exercise of sovereign will of the Maharaja (Hari Singh)” who signed the Instrument of Accession to join India on October 26, 1947.
In the wake of the ICJ advisory opinion on OPT (July 19, 2024), spelling out the International Law on Belligerent Occupation, now India needs to chisel her tools to strongly reassert and formally present legal claims for return of the entire territory POK from the occupying state, Pakistan. The Indian Home Minister Amit Shah has already spoken (May 15, 2024) about taking “proactive steps” at the right time for “taking back” the POK. Hence, the ICJ advisory opinion on the OPT provides an authoritative legal clarification that duly supports the said Indian position, enunciated by the Union Home Minister, for finally taking back the POK.
This Article is an Original Contribution to the SIS Blog.
Prof. (Dr.) Bharat H. Desai is (former) Professor of International Law and Chairperson of the Centre for International Legal Studies (SIS, JNU), who served as a member of the Official Indian Delegations to various multilateral negotiations (2002-2008), coordinated the knowledge initiatives for SIS Faculty Wall of Honor (2023-24), Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) and Making SIS Visible (2008-2013) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).
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