What the ICJ Got Wrong About the "Occupation" of the West Bank

On July 19, 2024, the International Court of Justice, the United Nations’ top judiciary body, issued an advisory opinion titled “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.” In short, the Court concluded that “the continued presence of Israel in the Occupied Palestinian Territory is illegal.”

However, in a 36-page dissent in which three other judges joined, ICJ Vice President Julia Sebutinde of Uganda exposed the serious flaws in the majority’s reasoning and approach. (See https://www.icj-cij.org/sites/default/files/case-related/186/186-20240719-adv-01-02-en.pdf.) The key aspects of her dissent can be distilled into three main critiques:

1. No occupation to begin with. Under well-established principles of international law, when the State of Israel declared its independence in 1948, by default its borders included all the territory in the pre-existing Mandate of Palestine, including the West Bank and Gaza. Israel cannot “occupy” territory that lawfully belongs to it.
2. One-sided approach. The majority opinion adopted the biased premises of the questions presented, and focused exclusively on Israel’s culpability without considering its legitimate competing claims to sovereignty or security concerns.
3. Disregard of Oslo Accords. The Oslo Accords provide a mutually agreed-upon framework of “land for peace.” Under those accords, Israel’s obligation to withdraw from portions (not all) of the West Bank and East Jerusalem is conditional upon the Palestinians providing effective guarantees against further terrorist attacks. Demanding that Israel withdraw without acknowledging the Palestinians’ failure to ensure Israel’s security directly contravenes Oslo, and actually undermines peace efforts.?

1. Israel cannot “occupy” territory that belongs to it

In discussing the West Bank, it is often taken as a given that Israel has “occupied” it since the Six-Day War in 1967. But this conventional wisdom actually directly conflicts with a bedrock principle of international law, under which the borders of Israel necessarily include both the West Bank and Gaza.

Uti possidetis juris (Latin for “as [you] possess under the law”) is one of several principles of international law upon which legally enforceable borders are established. This principle “transforms the colonial and administrative lines existing at the moment of birth of the new State into national borders. The principle applies to the State, as it is ‘at the moment of independence,’ i.e. to the ‘photograph’ of the territorial situation existing then.” (Dissent at 27-28.) Notably, this retroactively effective principle is not dependent on the intentions of the newly-declared state itself regarding its borders at the time independence is declared.

This pro-stability principle “aims to preserve the territorial integrity of new States by maintaining the status quo of borders, thereby preventing conflicts that could arise from border disputes. The principle is also associated with preventing foreign intervention by eliminating any contested terra nullius (no man’s land) that foreign powers could claim…. In essence, uti possidetis juris serves as a stabilizing factor during the transition of territories from colonial rule to independence, ensuring that the new States’ borders are recognized based on historical administrative lines rather than being redrawn, which could lead to further disputes and instability.” Id. at 27 n. 74.

It is undisputed that the British were vested with sovereignty over the Mandate of Palestine by the League of Nations in 1918. This included modern-day Israel, the West Bank, Gaza, and Jordan. In 1922, the British carved out Jordan (then known as “Transjordan”) from the Mandate to create a newly independent Arab state, leaving under its control all of the remaining territory west of the Jordan River (i.e., Israel, the West Bank, and Gaza). It is also undisputed that the British extinguished their control over the remaining Mandate at midnight on May 14, 1948, and that Israel declared its independence on May 15, 1948, the moment British sovereignty ended. It is further undisputed that the Arabs did not declare the existence of a state of their own at that time. (Instead, the neighboring Arab states simultaneously attacked, and an armistice was reached in which Egypt purported to annex Gaza and Jordan purported to annex the West Bank.) The armistice line of 1949 was a concession to military reality, not an agreed-upon border.

As Judge Sebutinde wrote, “applying the doctrine of uti possidetis juris to Israel would mean that Israel has territorial sovereignty over all the disputed areas of Jerusalem, the West Bank, and Gaza, except to the degree that Israel has voluntarily yielded sovereignty since its independence. This conclusion stands in opposition to the widely espoused position that international law gives Israel little or no sovereign claim to these areas.” Id. at 29 (emphasis added).

The issue here is not the policy outcome one would prefer, or whether one has sympathy for the plight of local Arabs or respect for their right to exercise self-determination somewhere. Rather, applying general principles of international law to Israel, the conclusion one is forced to draw is that Israel has the legal right to be present in the West Bank–indeed, that it has full sovereignty over it. Obviously, a country cannot be an “occupier” of territory within its own borders. The fact that the UN has consistently failed to apply the principle of uti possidetis juris to Israel in a similar manner as it has to other countries appears to say more about the UN than it does about Israel.

2. The majority’s one-sided approach

Judge Sebutinde criticized the majority opinion for “omit[ting] the historical backdrop that is crucial to understanding this multifaceted dispute. As a result, the Advisory Opinion is tantamount to a one-sided, ‘forensic audit’ of Israel’s compliance or non-compliance with international law, that does not reflect a comprehensive, balanced, impartial, and in-depth examination of the pertinent legal and factual questions involved.” Id. at 3.?

As an initial matter, Judge Sebutinde took issue with the majority’s decision to render an advisory opinion at all, given the lack of balanced information presented to it:

Due to the one-sided formulation of the questions posed in resolution 77/247, coupled with the one-sided narrative in the statements of many participants in these proceedings, some of whom do not even recognize the existence or legitimacy of the State of Israel, the Court does not have before it the accurate and reliable information that it needs to render a balanced opinion on those questions...By asking the Court to look only at the “policies and practices of Israel”, the General Assembly shields from the purview of the Court, the policies and practices of the Palestinian Arabs and their representatives (including non-state actors), as well as those of other Arab States in the Middle East whose interests are intertwined with those of the Palestinian Arabs.

Id. at 18-19. Judge Sebutinde stopped short of calling it a “kangaroo court,” but the implication was undeniable.

First, the majority opinion ignored the Jewish people’s historic connection to the entire land of Israel, including the West Bank:

Contrary to popular opinion, available evidence shows that as early as 1200 BCE, the Jewish people existed in the territory known as present-day Israel (also known during the British Mandate of 1922-1947 as “British Mandatory Palestine”) as a cohesive national group with a well-established and formed culture, religion, and national identity as well as a physical presence which has been maintained through the centuries despite the devastating impacts of conquests and their dispersion into exile.

Id. at 5.?Indeed, the area was renamed “Palestinia” by the Romans in 135 CE “as a punishment, to spite the ‘Y’hudim’ (Jewish population) and to obliterate the link between them and their province (known in Hebrew as Y’hudah).” Id. at 6. The name was selected based on the Philistines, “an ancient tribe who migrated from the Aegean region and settled in the region of Canaan, roughly corresponding to modern-day Gaza Strip, southern Israel, and parts of south-western Lebanon.” Id. n.9.?

Prior to the formation of the modern State of Israel, the local Arabs did not consider themselves to be “Palestinian” or that there was such a place as “Palestine”:

When the distinguished Arab American historian, Professor Philip Hitti, testified against the Partition of Mandatory Palestine before the Anglo-American Committee in 1946, he remarked: “There is no such thing as ‘Palestine’ in history; absolutely not.” The first Palestine-Arab Congress which convened in Jerusalem from 27 January to 10 February 1919 to choose Palestinian representatives for the Paris Peace Conference, adopted a resolution in which it, inter alia, considered Palestine as an integral part of Arab Syria. In 1937, Auni Bey Abdul-Hadi, a local Arab leader, told the Peel Commission which ultimately suggested the Partition of Palestine: “There is no such country [as Palestine]! ‘Palestine’ is a term the Zionists invented! . . . Our country was for centuries part of Syria.

Id. at 6-7 (emphasis added).

Second, the majority opinion overlooked that the local Arab population had spurned offers of a state of their own on numerous occasions over the last nine decades:

The proposal for the creation of a two-State solution in the territory of British Mandatory Palestine (one for the Jewish population and the other for the Arab population) has been a recurrent item on the United Nations’ agenda but has repeatedly been rejected by the Arab population living in the territory, as well as by Israel’s Arab neighbours….While Israeli leadership has been open to the concept, Palestinian Arabs and neighbouring Arab States have consistently rejected the idea of a Jewish State coexisting with an Arab State on at least seven occasions.

Id. at 7-8.?Although the majority opinion discussed the virtually unprecedented length of Israel’s “occupation,” it contained no discussion of the Arab population’s unprecedented refusal to embrace peace in exchange for statehood. (It thus had no occasion to address whether loss of territory for a future state for the Arab populace was a legitimate consequence of repeated wars of aggression initiated by the Arab populace.)

Third, the majority opinion contained no discussion of Israel’s legitimate security concerns in the face of such an unprecedented existential threat on its borders:

It is undeniable that there are States and non-State actors who have openly expressed a desire to see the State of Israel, not just withdraw from the OPTs but also wiped off the face of the earth, including from its own territory. Time and time again Israel’s adversaries have launched surprise attacks on Israel within her borders and not just in retaliation for her occupation of Palestinian territory. Indeed, many of the wars between Israel and her Arab neighbours have been fought by Israel pre-emptively to remove an immediate and existential military threat originating from either the OPTs or from enemies further afield. Examples include the 1967 war, the Six-Day War, and more recently, the ongoing Gaza war.

Id. at 23. It should not be surprising that the duration of this “occupation” has little precedent when the duration of the threat has little precedent.

Fourth, and relatedly, Israel’s “occupation” could not be illegal (even setting aside uti possidetis juris) when it was initiated as a legitimate act of self-defense, and has been maintained for that purpose. Judge Sebutinde took the majority’s assertion that an illegal occupation does not become legal through the passage of time, and turned it on its head:

Security Council practice does not provide any support for the view that “the notion of ‘illegal occupation’ may extend to occupation resulting from a lawful use of force.”...Historically, Israel assumed control over the disputed territories (i.e. the West Bank, the Gaza Strip and Jerusalem) in June 1967 in response to a clear and present threat, initiated by a group of Arab States, intent on annihilating the Jewish State. The legitimacy of Israel’s control of these territories at that time was generally uncontested as it was understood that it had done so within the framework of the legitimate exercise of its right of self-defence.

While the international community did eventually develop a framework for the resolution of this war…, it was not contended at that time that Israel’s control of these territories, pending such resolution, was illegal. Accordingly, it is difficult to ascertain at what point in history, and pending a negotiated settlement, when Israel’s presence in and control of the disputed territory, became an illegal occupation, as opined by the majority. A lawful occupation does not become unlawful due to passage of time….

Id. at 34-35 (emphasis added).

3. Disregard of the Oslo Accords

Even aside from the international law principle of uti possidetis juris, and even aside from Israel’s ongoing right to “occupy” the West Bank if necessary for its self-defense, the still-binding Oslo Accords preclude a finding that Israel’s presence in the West Bank is “illegal.” as Judge Sebutinde stated:

The Oslo Accords are binding bilateral agreements which were entered into by Israel and the Palestine Liberation Organization (PLO), the then official representatives of the Palestinian people, pending a final settlement between the parties, to serve as an irreversible mechanism for reaching a compromise solution acceptable to both parties, within the framework of the internationally recognized formula for resolving the regional dispute….The international and bilateral framework for the resolution of the conflict, establishes a legal basis for Israel’s continuing exercise of certain powers and responsibilities in the West Bank which the majority has characterized as “illegal”.

The Advisory Opinion ignores the lex lata international legal framework and has the effect of undermining the international “land for peace” formula set out in UN Security Council resolutions 242 and 338, and of invalidating the bilateral Oslo Accords. …

Although the Oslo Accords have not yet been fully implemented, they continue to bind the parties concerned and to provide a framework for allocating responsibilities between Israeli and Palestinian authorities and informing future negotiations regarding permanent status issues."

Id. at 13-14.

Importantly, the Oslo Accords adopted the UN Security Council’s “land for peace” framework, which made two conditions–withdrawal from territory and commitments to peace and security–irrevocably interdependent:

After the Six-Day War of 1967, the Security Council in its resolution 242 (commonly referred to as the “land for peace” framework), affirmed that “the establishment of a just and lasting peace in the Middle East” required the fulfillment of two interdependent conditions, namely the “withdrawal of Israel armed forces from territories occupied in the recent conflict” on the one hand, and the “termination 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.

Id. at 14. The Oslo Accords entered into three decades later set forth specific mutually agreed-upon criteria under which land would be exchanged for peace.?

Thus, regardless of what the rest of the world may think about Israel’s presence in the West Bank, the recognized leaders of the Palestinian Arabs acknowledged that Israel’s obligations to withdraw from territory were inextricably tied to the Palestinians’ obligations to provide Israel with lasting and meaningful security guarantees. It is clear that the Arab leadership has been unwilling or unable to commit to peace. Since that condition has not been fulfilled, Israel’s presence in the West Bank cannot be “illegal.” Judge Sebutinde insightfully summarized the history of the last few decades:

[T]he collapse of the Oslo process was brought about by Israel’s unwillingness to continue its withdrawal from the occupied territories in the absence of effective security guarantees from the Palestinian side. At that time, instead of security guarantees, Israel was experiencing suicide bombings emanating from the OPTs during the periods 1994-1997 and 2000-2006, which led to a slowing down and eventual halt of the withdrawal exercise. Conversely, the only time Israel has unilaterally withdrawn from the Gaza Strip in 2005 and not insisted on concurrent security guarantees for itself, the results have been disastrous for Israel.

Id. at 23.

Judge Sebutinde went on to identify potentially devastating practical concerns of complying with the court’s recommendation to withdraw “as rapidly as possible":

In particular, the Advisory Opinion does not consider the tense security situation in the West Bank, which renders it practically impossible for Israeli forces to unilaterally withdraw from occupied territories without putting in place security guarantees for the hundreds of Israeli citizens or settlers (including those that hold valid titles to private land predating 1948) who would remain under Palestinian control. The situation could become dangerously volatile for any Israeli citizen left behind, if a unilateral withdrawal by Israel from the disputed territories would lead to a power vacuum that would be filled, as in the case of the Gaza Strip, by Hamas or other extremist groups dedicated to Israel’s destruction.

Id. at 24. But the majority issued its opinion, consequences be damned.

Conclusion

The ICJ’s majority advisory opinion is not enforceable in a classic sense (it is, after all, merely “advisory”). But it will likely have two practical effects. First, it will further damage the perceived legitimacy of Israel in the eyes of a world already highly critical of Israel’s military operations designed to eradicate Hamas in Gaza after the atrocities of October 7. Second, it will make the chances of a mutually agreed-upon two-state solution even more unlikely, as it sends a signal to the Palestinians that they need not bother engaging in negotiations with Israel or committing to peace to get what they want. As Judge Sebutinde observed in her dissent and prior opinions,

a permanent solution to the Israeli-Palestinian conflict can only result from good faith negotiations between Israeli and Palestinian representatives working towards the achievement of a just and sustainable two-State solution. A solution cannot be imposed from outside, much less through judicial settlement.

Id. at 13. In light of these obvious negative ramifications, it is troubling that the majority chose to issue an?advisory opinion at all, let alone one that disregarded these important points raised by its Vice-President.