Palestine and International Justice

Since the early 2000s, Palestinians have increasingly engaged international jurisdictions, particularly the International Court of Justice (ICJ) and the International Criminal Court (ICC), to hold Israel accountable for its systematic violations of international law in the Palestinian territory it occupies. Such an international “judicial” turn constitutes an additional step in the progressive “internationalization” of the Palestinian question, originally pursued by the Palestine Liberation Organization (PLO) since the late 1960s.

The PLO initiated efforts to conduct diplomatic initiatives and seek recognition within international fora as a political strategy to complement armed struggle within Palestine. In 1974, such endeavors culminated in the recognition of the PLO by the United Nations General Assembly as “the representative of the Palestinian people,” which resulted in an invitation to participate in the assembly’s sessions concerning the question of Palestine (Resolution 3210 of 14 October 1974) and the granting of participant “observer” status within the sessions, work, and conferences of the General Assembly and other United Nations organs (Resolution 3237 of 22 November 1974). By then, the PLO had already been granted observer status in other international fora, including the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, which would lead to the adoption in 1977 of the two Protocols Additional to the 1949 Geneva Conventions . Based on the PLO’s progressive acceptance of the “two-State solution” and the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988 “in line with General Assembly resolution 181 (II), ”the General Assembly acknowledged the “proclamation of the State of Palestine” and the right of “the Palestinian people to exercise their sovereignty over their territory occupied since 1967” (Resolution 43/177), and the Palestinian representation at the UN was authorized to use the designation “Palestine” instead of PLO. While attempts to achieve full membership of the UN have so far failed owing to lack of support within the UN Security Council , the most recent upgrading of Palestine’s standing within the UN was achieved on 29 November 2012, whereby the General Assembly granted Palestine the status of “non-member observer State” (Resolution 67/19). This allowed Palestine to accede to a number of human rights treaties, the 1949 Geneva Conventions, and the Rome Statute of the ICC.

In parallel to the recognition of a legal standing within the UN, the PLO also sought full recognition of Palestinians’ rights and condemnation of Israeli unlawful practices. General Assembly Resolution 3236 of 22 November 1974 was a milestone in this respect as it recognized as “inalienable” the right of the Palestinian people to self-determination and national independence and sovereignty, and the right of Palestinian refugees to return to their homes and property (previously affirmed by Resolution 194 of 11 December 1948). In 1975, the General Assembly established the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People to promote the implementation and exercise of such rights. Moreover, both the General Assembly and the Security Council have condemned through multiple resolutions Israel’s unlawful measures infringing upon the inalienable rights of the Palestinian people, including the creation of Israeli settlements in the occupied Palestinian territory and the annexation of East Jerusalem .

Other advocacy efforts have sought to hold Israel accountable through the UN human rights machinery, particularly within the former United Nations Commission on Human Rights and its successor, the United Nations Human Rights Council . This led to the establishment over time of a number of mechanisms, including the mandate of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967; several ad hoc Commissions of Inquiry, including those tasked to investigate international law violations committed in Gaza during the 2008–2009 and 2014 hostilities and the Great March of Return in 2018–2019; and the open-ended UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel in May 2021.

International Court of Justice

The ICJ is the “principal judicial organ” of the UN, which the UN Charter mandates to perform two functions: settling disputes between States and rendering advisory opinions on legal questions to UN organs. At present, two advisory opinions and one inter-State case are relevant to Palestine.

In response to a General Assembly request (Resolution ES-10/14, dated 8 December 2003), the ICJ rendered an advisory opinion on 9 July 2004 concerning the legal consequences arising from the construction of the Separation Wall by Israel in the occupied Palestinian territory. The ICJ found the construction of the Wall on Palestinian territory to be “contrary to international law,” including the UN Charter, the right to self-determination, international humanitarian law (i.e., the law regulating armed conflict), and international human rights law. It further held that Israel was under an obligation to cease its construction, dismantle the portions thereof built on Palestinian territory, “repeal or render ineffective” all legislation and regulations associated with it, and “make reparation for all damage caused by the construction of the wall.” The ICJ also recalled the obligations of all States to refrain from recognizing “the illegal situation resulting from the construction of the wall” and from rendering “aid or assistance in maintaining the situation created by such construction.”

While the General Assembly acknowledged the ICJ’s findings and demanded that Israel “comply with its legal obligations as mentioned in the advisory opinion” (Resolution ES-10/15 of 20 July 2004), Israel has never implemented the measures requested by the ICJ. Advisory opinions are not per se binding, but they are authoritative because they clarify State obligations under international law, including Israel’s. On the other hand, the advisory opinion on the Separation Wall has since become a fundamental reference point within the UN system and has repeatedly been recalled by the Security Council, the General Assembly, the Secretary-General, the Human Rights Council, the ICC, and the UN human rights machinery. It has also had significant value for academic and expert analyses and the NGO community in their advocacy efforts.

On 30 December 2022, the General Assembly, in Resolution 77/247, requested a new advisory opinion from the ICJ, this time focusing on “the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination,” particularly as resulting from “its prolonged occupation, settlement and annexation of the Palestinian territory” and from “its adoption of related discriminatory legislation and measures.” The General Assembly further requested the ICJ to determine how such “policies and practices … affect the legal status of the occupation,” and “what ... legal consequences [would] arise for all States and the United Nations from this status.”

An ICJ advisory opinion on the legality of Israel’s prolonged occupation of the Palestinian territory has long been advocated by NGOs, experts, and academics. The former UN Special Rapporteur on the occupied Palestinian territory, John Dugard , made such a recommendation in a 2007 report. Shortly before the General Assembly’s request, the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel made a similar recommendation in a report published on 14 September 2022. The relevance of such a request is that, instead of focusing on discrete violations of international law, or specific practices such as the construction of the Separation Wall, the ICJ has been requested to determine whether the occupation itself is lawful. The request’s reference to “discriminatory legislation and measures” further offers a potential entry point for the ICJ to consider the question of apartheid in the Palestinian territory. Of note is also the General Assembly’s request for a clarification on the obligations arising for all States and the UN from a determination of illegality of Israel’s policies and practices, which may enhance the practical impact of the advisory opinion, particularly in light of Israel’s possible defiance. At the time of writing, the ICJ has yet to render its opinion.

Resolution ES-10/14, which requested the first advisory opinion, was adopted with 90 votes in favor, 8 against, and 74 abstentions. Some of the abstaining States, including Canada , Switzerland , the United Kingdom , and Italy on behalf of the European Union , stated that they considered the Separation Wall to be illegal insofar as it was built inside the occupied Palestinian territory but that seeking a legal opinion from the ICJ was inappropriate in a context that was “political” in nature; they affirmed that the settlement of the various outstanding issues between the parties should be the object of direct negotiations. Resolution 77/247, which included the request for a second advisory opinion, was passed by 87 votes in favor, 26 against, and 53 abstentions. In response to the initiative to seek an advisory opinion from the ICJ, the Israeli Government approved a number of financial and other sanctions against the Palestinian Authority , including blocking the transfer of 139 million shekels ($39.6 million) in tax revenues and the issuing of construction permits in Area C of the West Bank .

Palestine also instituted an inter-state case against the United States with regard to then President Donald Trump ’s decision to recognize Jerusalem as the capital of Israel on 6 December 2017, followed by the relocation of the US Embassy to Jerusalem on 14 May 2018. Palestine argued that moving the embassy violated US obligations under the 1961 Vienna convention on diplomatic relations and requested the ICJ to order the US to withdraw its diplomatic mission from Jerusalem. Palestine’s argument was that the US can only establish a diplomatic mission on the territory that international law recognizes as Israel’s. The argument is connected to Jerusalem’s special status under international law (defined as a so-called corpus separatum) as envisaged under the UN Partition Plan of 29 November 1947 (General Assembly Resolution 181), which excludes the city from being considered as part of Israel’s territory. Because of this, Israel’s measures adopted since 1967 to unlawfully annex Jerusalem have been repeatedly condemned by the Security Council and the General Assembly as contrary to international law. The US has objected to the ICJ’s jurisdiction to hear the case, based on its refusal to recognise that it entertains a treaty relationship with Palestine under the 1961 Vienna Convention. On 12 April 2021, Palestine asked the ICJ to postpone the oral hearings, scheduled to take place on 1 June 2021, to allow the parties to find an amicable solution through negotiations. The US did not object to the request, and so the ICJ postponed the oral hearings until further notice.

The Committee on the Elimination of Racial Discriminations

Another inter-State case between Palestine and Israel is pending before the UN Committee on the Elimination of Racial Discrimination (CERD), which monitors the respect and implementations of the 1965 International Convention for the Elimination of All Forms of Racial Discrimination (ICERD). On 23 April 2018, Palestine filed a communication with the CERD alleging Israel’s violation of its obligations under article 3 of the ICERD, which prohibits “racial segregation and apartheid” and requires States parties to “prevent, prohibit and eradicate all practices of this nature.” In particular, Palestine submitted that the CERD should make a finding that “Israel practices a policy of systemized racial discrimination throughout the occupied territory of the State of Palestine” and that its “policies and practices ... constitute apartheid.” Palestine specifically requested that Israel “dismantle the existing Israeli settlements” to terminate this situation and that third States “bring to an end ... the system of racial discrimination set up by Israel” and that they do not “recognize as lawful this illegal situation, nor render aid or assistance in any form in maintaining that situation.”

The CERD issued two decisions: it found that it has jurisdiction over the matter (12 December 2019) and that the communication is admissible (30 April 2021). Israel refused to recognize the CERD’s jurisdiction in the case. On 30 November 2021, the CERD appointed an Ad Hoc Conciliation Commission, composed of five CERD members, to examine the substance of Palestine’s complaints. The appointment followed Israel’s refusal to recognize the CERD’s jurisdiction in the case and to proceed to the consensual selection, together with Palestine, of the Ad Hoc Conciliation Commission’s members. Between January 2022 and May 2023, the commission held two online meetings and four in-person meetings. The Rules of Procedure, adopted on 25 April 2022, provide that the Commission is “expected to complete its mandate within a reasonable timeframe until the matter is fully considered.” At the time of writing, the case is pending.

International Criminal Court

The ICC is a permanent international tribunal established through the Rome Statute. Unlike the ICJ, the ICC’s focus is the criminal responsibility of individuals. Specifically, its mandate is to investigate the “most serious crimes of international concern” as listed in the Rome Statute – genocide, crimes against humanity, war crimes, and the crime of aggression – and to prosecute their alleged perpetrators. The ICC has jurisdiction over international crimes committed on the territory or by nationals of a State party to the Rome Statute.

On 22 January 2009, in the wake of the war on Gaza (December 2008–January 2009), Palestine lodged a declaration with the ICC Registrar voluntarily accepting the jurisdiction of the ICC over alleged international crimes committed on the Palestinian territory since 1 July 2002 (the day the Rome Statute entered into force). On 3 April 2012, following the conclusion of a preliminary examination, then Prosecutor Luis Moreno Ocampo declined to open a full investigation, stating that his Office had no authority to determine whether Palestine classified as a “State” to accept the ICC’s jurisdiction. He affirmed that it fell on “the relevant bodies at the United Nations or the [ICC] Assembly of States Parties” to make such a determination, thus enabling the ICC to exercise its jurisdiction over the Palestinian territory. A few months later, on 29 November 2012, the General Assembly, through Resolution 67/19, accorded Palestine the status of “non-member observer State.” This move paved the way for Palestine to accede to the Rome Statute. Palestine accepted the ICC’s jurisdiction on 1 January 2015, and on 2 January it deposited its instrument of accession to the Rome Statute. At accession and in a successive referral dated 22 May 2018, Palestine retroactively accepted the ICC’s jurisdiction as of 13 June 2014, in order to cover the armed conflict that had taken place in Gaza in July–August 2014 (“Operation Protective Edge ”).

The Office of the Prosecutor, then led by Fatou Bensouda , soon started a preliminary examination to assess whether the conditions to open a full investigation were in place. After almost five years, on 20 December 2019, the Prosecutor announced that “there [was] a reasonable basis to proceed with an investigation into the situation in Palestine,” particularly with respect to alleged war crimes committed during the 2014 hostilities in Gaza, the transfer of Israeli settlers into the West Bank and East Jerusalem, and crimes committed in connection to the use of force by Israel during the 2018–2019 Great March of Return in Gaza. Contextually, the Prosecutor asked the ICC to deliver a ruling to confirm that its territorial jurisdiction, and thus the scope of the investigation, comprised the West Bank, including East Jerusalem, and the Gaza Strip. On 5 February 2021, Pre-Trial Chamber I decided that “the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.” On 3 March 2021, the Office of the Prosecutor announced the opening of an investigation into the situation in the State of Palestine, which remains ongoing at the time of writing.

The ICC constitutes the strongest option to hold Israeli government and military officials criminally liable for international crimes committed on Palestinian territory. Civil society organizations have accordingly engaged with the Office of the Prosecutor by providing evidentiary materials relevant to the ongoing investigations and advocating for broadening the scope of their focus. Indeed, the Office of the Prosecutor’s investigation could include other war crimes and crimes against humanity under the Rome Statute, such as alleged war crimes committed during the May 2021 hostilities in Gaza; the forced displacement, transfer, or deportation of Palestinians within or outside the Palestinian territory; and the crime of apartheid.

The effectiveness of such investigations may be affected by Israel’s continued defiance toward the ICC. Despite being invited by the ICC itself to participate in the proceedings, Israel refused to take any part in them. Israel indeed contends that the ICC has no jurisdiction over its nationals because it has not ratified the Rome Statute, even though the alleged crimes have been committed on a State party’s territory (i.e., Palestine). Notably, in response to ICC investigations into alleged crimes committed by US and Israeli officials in Afghanistan and Palestine, respectively, on 11 June 2020 the US Government imposed financial and travel sanctions on former ICC prosecutor, Fatou Bensouda, and a second senior ICC official, Phakiso Mochochoko . On 2 April 2021, President Joe Biden lifted these sanctions but stated that the US Government “disagree[s] strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations” and “maintain[s] [its] longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.”

Given Israel’s full control over all entry and exit points to the Palestinian territory (except for the Rafah crossing point between Gaza and Egypt , another State not party to the Rome Statute), the ICC Office of the Prosecutor might not be able to conduct on-site investigations. Israel would also not surrender any of its citizens should the ICC issue an arrest warrant against Israeli government or military officials. On the other hand, those same individuals may face arrest should they travel in the territory of any State party to the Rome Statute.

Conclusion

The international judicialization of the Palestinian question cannot, in itself, end Israel’s ongoing occupation of the Palestinian territory. However, resorting to international jurisdictions may result in tactical victories that could assist the political and diplomatic processes and civil society struggles and advocacy. While not binding for States, ICJ’s advisory opinions have at times contributed to ending international law violations, such as in South Africa ’s occupation of Namibia , or they have influenced State behavior, for example, negotiations between the United Kingdom and the Mauritius over the status of the Chagos Archipelago . An ICJ finding that Israel’s occupation is illegal under international law may have similar effects. For instance, it could be employed to advocate with the European Union, Israel’s largest commercial partner, to use its economic leverage to influence Israel’s behavior toward a withdrawal from the Palestinian territory. A finding by the CERD that Israel’s policies and practices in the Palestinian territory amount to apartheid would further help in this sense. Moreover, while Israel refuses to cooperate with the ICC, the issuance of arrest warrants against Israeli officials would have concrete consequences on their ability to travel in most States of the world, as they could effectively face arrest and transfer to The Hague . This, in turn, may have a deterrent effect against the future commission of international crimes by Israeli government and military officials, particularly with regard to the conduct of military operations in Gaza as well as the construction of unlawful settlements in the West Bank, including East Jerusalem.