In July, the International Court of Justice (ICJ) issued an advisory opinion regarding Israel’s occupation of the Palestinian territories from 1967 to 2022, declaring Israel’s continued presence illegal and ordering it to end the occupation and make reparations for its “wrongful acts”. The release of the opinion during the ongoing genocide in Gaza raises important questions about the relationship between international law, multilateralism, and the future of Palestine. 

The Cairo Review’s Abigail Flynn spoke with Associate Professor Hani Sayed, international law scholar at the American University in Cairo, to discuss the legal implications of the opinion. 

Cairo Review: The court called for Israel to quit the Occupied Territories and to pay reparations. Is this feasible and what would it look like in practice?

Hani Sayed: The feasibility of these actions is ultimately not a legal question. It all depends on whether a peace process can be resurrected. How would it look in practice? This also depends on what kind of bargains are going to be reached. The opinion tells us that the continuation of the occupation itself is illegal because it amounts to annexation and violates the right of the Palestinian people to self-determination. It also outlines the consequences of the illegality including restitution of expropriated property, and when that is impossible, compensation.

A decision to withdraw from occupied land and dismantle settlements is not impossible to implement when there is a political will. In 2005, Israel decided to disengage from Gaza and dismantle the settlements there.  This was done despite logistical and political difficulties in Israel. This legal advisory opinion cannot compel Israel to take such a decision. But if Israel makes a political decision to do so, it can be done, albeit with difficulty. The scope of the settlement activity in the West Bank far exceeds what was present in Gaza. At its peak, there were roughly 9,000 settlers in Gaza compared to the more than 700,000 settlers currently in the West Bank. Additionally, Israel has integrated these West Bank settlements into the legal system and economy, so removing them would be very complicated. But not impossible. 

If the advisory opinion has no direct impact on the peace process, what is the benefit of the court’s recent announcement?

The court was asked by the General Assembly of the United Nations to assist the Assembly in its work by answering certain questions regarding the status of an issue in international law. So, ultimately the formal audience of this opinion is the General Assembly. The question is whether the General Assembly will actually use this opinion to issue some kind of resolution that will be added to the countless resolutions that the General Assembly has issued regarding the question of Palestine. So the opinion, in that sense, is relevant and informative formally only to the General Assembly.  

[Note: After this interview was conducted, on September 17, 2024, the General Assembly adopted a resolution by a two-thirds majority (124 in favor, 14 against, and 43 abstentions), demanding, among other things, that Israel end its presence in the occupied Palestinian territories within a period not exceeding 12 months.]

Now, what is the value of the advisory opinion? The value lies in the fact that the court has a rather important symbolic power and this opinion will provide an authoritative statement on the legal norms that govern the situation and should ultimately determine its resolution. But how this situation is going to evolve is ultimately not something the court can enforce. 

Analysts have commented that the court decision is significant because Israel has maintained the position that the question of Palestine should be resolved through political means, not legal avenues. Why is this significant? 

Israel objects to the ruling for obvious reasons. I think the significant aspect of this opinion is that it shifts the conversation into a whole different level in two ways. 

First, it changes the way the legal conversation has been unfolding, transitioning it from a discussion about the legality of certain practices of the occupying power of the West Bank and Gaza to a discussion about the legality of the occupation per se. I think the way the General Assembly question and the ICJ opinion are framed shifts the premises of the conversation, suggesting that even if Israel were to fully comply with its obligations as an occupying power, the continuation of the occupation itself would still be considered illegal.

The opinion of the court is crucial because it says that given what we know about how Israel has conducted the occupation since 1967 until now, it is obvious that there is a clear intent to violate a cardinal rule of international law, which is the prohibition on the acquisition of territory through the use of force. The fact that there is an intent to annex makes the continuation of the occupation per se illegal under international law. 

What is the second way the advisory opinion changes the conversation about the Occupied Territories?

The second important implication of this opinion is that it brings forward again, more explicitly, the question of the legal responsibilities of the third parties. It is no longer a question about the relationship between Israel and the Palestinians. Now it is a question about the obligations of the world vis-à-vis the continuation of this illegal situation in the Palestinian territories.

Regarding the role of third parties, Israel has tried to isolate negotiations over the Occupied Territories to a bilateral arrangement between itself and Palestine with the United States as a broker. Will the advisory opinion have any impact on this arrangement?

The legal opinion of the International Court of Justice will have no impact on the current approach to the peace process. It does not change the consensus that there must be a two-state solution and it does not necessarily mandate that the negotiations must become a multilateral arrangement. The ultimate progress of the peace process will depend on the policy decisions of the United States, the European Union (EU), Israel, and the Arab countries. If these powers feel that it is in their political interests to move the conversation to a multilateral format, then that shift will happen. But this is unlikely. 

What impact does the advisory opinion have on the responsibilities of countries who support Israel?

Even though the opinion provides a very clear formulation of the responsibilities of the third parties, the court had already outlined these responsibilities in their 2004 advisory opinion regarding Israel’s construction of a wall in the Occupied Territories. 

The most recent advisory opinion is a bolder affirmation of these responsibilities. It is consistent with a growing consensus, especially within the EU, about the duty not to support these illegal activities. For instance, the EU-Israel Association Agreement has a clear mechanism to exclude any products produced by the settlements in the Occupied Territories from whatever preferential treatment Israeli products receive in the EU markets.

So in a way, this advisory opinion reinforces already existing policies within the EU. This gives a boost to the boycott and divestment campaigns that are active in civil society, both in Europe and the United States. 

What is the role of civil societies here?

I think the civil societies have already made this legal argument way before the ICJ did. The reason why the Boycott, Divestment, and Sanction movement (BDS) has been very successful in gaining recognition from different universities and professional organizations is because it is backed by a legal analysis which posits that countries have a duty to ensure respect of the Geneva Convention and to not recognize the illegal consequences of these violations. 

Is there a possibility that a country that has not divested from Israel could be brought to court for not fulfilling this responsibility? 

There have been attempts to do so. There are cases that were made in the Netherlands and the United States trying to block the delivery of military assistance to Israel, especially in the context of the current attack on Gaza. In some instances those cases were successful, like in the Netherlands. In the United States, the case was rejected on the basis of the fact that the president has the exclusive authority to conduct foreign policy and the court should not undermine the executive branch. But I think that there will be more cases coming in domestic courts. 

The findings of the advisory opinion only looked at Israel’s actions until the end of 2022, so will it have any immediate impact on the likelihood of a ceasefire for Gaza? 

I would say no. It will not increase or decrease the push for a ceasefire. 

Does this case have any overlap with the ongoing genocide allegations that South Africa and other countries have made against Israel at the ICJ? 

These are 2 separate processes and the nature of the claims are very different. Ultimately, the South Africa case is asking the court to make a determination about whether what is happening in Gaza is a violation of the Genocide Convention. This is a very narrow legal question. Insofar as the ICJ advisory opinion responds to a request from the General Assembly concerning ongoing and continuing policies at the time the request was formulated (i.e., 2022), the ICJ did not address Israel’s conduct in Gaza after October 7, 2023.

It is important to recognize that the ICJ’s restatement of the law and the consequences for violations did not present any groundbreaking insights or depart from established interpretations. In a way, it just provides another authoritative statement about what a great majority of international lawyers and governments recognize as the legal consequences of the continuing occupation of the West Bank and Gaza.

If the advisory opinion will have no direct impact on the ground, what benefit does it have for the Palestinians? 

I tend not to think about the question of the effectiveness of the rule of law or any such broad conclusions. It is important to remember that this is a very violent political dynamic with parties that have different bargaining positions. In this context, the law is another arena where the Palestinians can work to achieve their right to self-determination. 

The Palestinian National Liberation Movement (Fatah) has been very successful in using international law to improve their bargaining power by making their position heard very loudly and persistently since 1967. Now there are four cases in the ICJ that relate to the question of Palestine, this most recent advisory opinion, the South Africa genocide case, the case of Nicaragua against Germany for supporting Israel, and a case raised by Palestine against the United States in 2018 when they moved the U.S. embassy to Jerusalem.

The Palestinians are trying to make best use of whatever tools they have at their disposal, including making legal arguments that impact the formulations of the background norms that should inform any political settlement. If your back is to the wall, you use whatever is in your hands to make an argument and gain grounds for your position. You could throw a stone or you could make a legal argument; both are tools in a very long battle.