{"id":76,"date":"2024-07-21T09:22:00","date_gmt":"2024-07-21T07:22:00","guid":{"rendered":"https:\/\/mynas-on-pines.net\/?p=76"},"modified":"2025-10-28T14:45:39","modified_gmt":"2025-10-28T13:45:39","slug":"the-icj-advisory-opinion-on-the-occupation-of-the-west-bank-gives-little-clarification","status":"publish","type":"post","link":"https:\/\/mynas-on-pines.net\/?p=76","title":{"rendered":"The ICJ advisory opinion on the occupation of the West Bank gives little clarification"},"content":{"rendered":"\n

I am disappointed by the ICJ advisory opinion concerning the legality of the ongoing occupation of the West Bank, East Jerusalem and Gaza by Israel\u2014or in their clumsy wordings: \u201cthe continued presence of Israel in the Occupied Palestinian Territory\u201d. Why? The opinion provides no methodological answer to the most central question, namely when a possibly legal occupation accompanied by breaches of its legal obligations by the occupying power turns into being itself illegal. <\/a>Paragraph 261 simply states:<\/p>\n\n\n\n

\n

\u201cThe sustained abuse by Israel of its position as an occupying Power, through annexation and an assertion of permanent control over the Occupied Palestinian Territory and continued frustration of the right of the Palestinian people to self-determination, violates fundamental principles of international law and renders Israel\u2019s presence in the Occupied Palestinian Territory unlawful.\u201d<\/p>\n<\/blockquote>\n\n\n\n

However, the opinion gives no explanation whatsoever on which grounds such an inference can be made. The judges have failed to present a principle on which the majority opinion concerning this issue may be based (maybe because there was no majority for any such principle). The issue was simply decided by a majority with judges Sebutinde, Tomka, Abraham, and Aurescu disagreeing. Sebutinde I will not take serious (in the Genocide Convention case she was far more apologetic of Israeli actions than Israeli ad-hoc judge Barak; here she supports the expansion of settlements). However, the declaration by Tomka, Abraham, and Aurescu clearly points out this lack of argument in the opinion. They claim that such inferences cannot be drawn without considering different areas of the West Bank separately, evaluating the legality of the Israeli presence in each of them, based on material findings concerning involved Israeli security interests, which are largely lacking in the opinion.<\/p>\n\n\n\n

\"\"<\/figure>\n\n\n\n

Within the majority concerning this issue some judges (at least Salam and Yusuf) entertain that the occupation has been illegal from the beginning in 1967. However, given the obscurity of both Egyptian and Israeli intentions in 1967, the defensive character of Israel\u2019s pre-emptive strike is very contested, it might even be impossible to decide, certainly opinions on this issue should on procedural grounds not be made pivotal for an advisory opinion like this, given the court\u2019s inability to investigate these questions more deeply on a material level. The judges Nolte and Cleveland provide a more nuanced argument for the illegality of the continued occupation: In their opinion there is a \u201cclear intention of Israel to permanently appropriate the West Bank in its entirety\u201d. It is this overarching intention, which runs contrary to a motivation by self-defense which can legitimise an ongoing occupation, which turns the occupation of the West Bank in its entirety illegal. However, I do not understand exactly how under these circumstances Nolte and Cleveland can still claim that the illegality implies a \u201cduty to withdraw \u2018as rapidly as possible\u2019\u201d, even if they try to qualify what \u201cas rapidly as possible\u201d may mean. Let us assume a new Israeli government would clearly distance itself from expansionism in the West Bank and stop the expansion of outposts but without taking further steps. In that case, of course settlements, annexations, dispossessions and certain repressive practices would remain illegal. However, despite few material changes suddenly security interests (self-defense) and agreements from the Oslo accords could again become legitimate reasons to continue the occupation, there would no longer be a unilateral duty to withdraw.<\/p>\n\n\n\n

Politically speaking all this is a disappointment, since it fails to address the very basis of a legal framework for any territorial compromises to be made in a peace agreement between Israel and Palestine.<\/p>\n\n\n\n

In any case the various separate opinions and declarations by the judges provide very interesting information about how they think about the Israeli\u2014Palestinian and the Israeli\u2014Arab conflict more generally, beyond the indications we already received from the Genocide Convention case.<\/p>\n","protected":false},"excerpt":{"rendered":"

I am disappointed by the ICJ advisory opinion concerning the legality of the ongoing occupation of the West Bank, East Jerusalem and Gaza by Israel\u2014or in their clumsy wordings: \u201cthe continued presence of Israel in the Occupied Palestinian Territory\u201d. Why? The opinion provides no methodological answer to the most central question, namely when a possibly […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-76","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/mynas-on-pines.net\/index.php?rest_route=\/wp\/v2\/posts\/76","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynas-on-pines.net\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynas-on-pines.net\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynas-on-pines.net\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/mynas-on-pines.net\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=76"}],"version-history":[{"count":1,"href":"https:\/\/mynas-on-pines.net\/index.php?rest_route=\/wp\/v2\/posts\/76\/revisions"}],"predecessor-version":[{"id":78,"href":"https:\/\/mynas-on-pines.net\/index.php?rest_route=\/wp\/v2\/posts\/76\/revisions\/78"}],"wp:attachment":[{"href":"https:\/\/mynas-on-pines.net\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=76"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynas-on-pines.net\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=76"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynas-on-pines.net\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=76"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}