2. العدد الثاني - النسخة الانجليزية

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    International Court of Justice
    (Al-Quds University, 2025-05) Ralph Wilde
    The question answered in this article: 1. In Resolution A/RES/77/247 on 30 December 2022, the United Nations General Assembly asked the present 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) Israel’s actions since 1967—occupation, annexation, settlements, and discrimination—violate international law and the Palestinian right to self- determination, triggering legal duties for Israel, other states, and the global community. (b) How do the policies and practices of Israel referred to in paragraph ... (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?1 2. Question (a) asks what the legal consequences are of three related matters, which are described in question (b) as “policies and practices of Israel”: (1) First, “the ongoing violation by Israel of the right of the Palestinian people to self-determination”. (2) Second, “its [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”. (3) Third, “its [Israel’s] adoption of related discriminatory legislation and measures”. 3. A determination of the legal consequences of these “policies and practices” requires a determination of two sub-questions: (1) The first sub-question is, in each case, how, international law has been/is being violated—the question of legality/illegality. (2) The second sub-question is, in each case, and cumulatively, what the legal consequences of the answer to the first sub-question are for international legal persons legally implicated in the situation. 4. Question (b) asks: How do the policies and practices of Israel referred to in paragraph ... (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? Paragraph (b) highlights the need for the Court to explicitly assess how Israel’s “policies and practices” impact the legal status of the occupation—not merely as background to determining legal consequences (paragraph a), but as a central legal question in its own right. 5. Paragraph (a) presents the third “policy and practice” as intrinsically linked to the denial of Palestinian self-determination and Israel’s occupation, settlement, and annexation. The second set of actions draws its legal character from the first; thus, assessing their legality hinges on the foundational violation of the right to self-determination. 6. Paragraph (b) calls on the Court to deliver a comprehensive legal assessment of the occupation of Palestinian territory since 1967—not limited to a single legal domain. This includes evaluating the legality of all three “policies and practices”: the denial of self-determination, settlement and annexation (including changes to Jerusalem), and discriminatory laws and measures. 2. Two aspects to the question on legality/illegality of the occupation 2.a. Is the existence of the occupation lawful? 7. The first legality/illegality question is whether the existence of the occupation, in and of itself, has a legal basis. If it does not, then it is existentially illegal. This question falls to be determined according to the law of self-determination and, because the occupation is a use of force, the law on the use of force. 2.b. Is the conduct of the occupation lawful? 8. The second key legal question is whether the conduct of the occupation itself is unlawful. This is assessed under multiple legal frameworks: the right to self- determination (including return), the laws of war, international humanitarian law, human rights law, and prohibitions against racial discrimination and apartheid.