How do we understand Israel’s occupation of Palestine? An explanation of recent opinions by the ICJ and ICC

By Christy Baile Crouse

Rooted in our shared desire for peace in the world, the Church of the Brethren has a legacy of advocating against persistent war and conflict. This legacy has taken different shapes throughout the decades. We’ve counseled conscientious objection to war. The Global Food Initiative addresses economic injustices that often cause conflicts. Our Youth Peace Travel Team and Christian Citizenship Seminar have provided young people with inspiration and education about peace and politics. The Office of Peacebuilding and Policy and Annual Conference agency On Earth Peace help to guide the church in this advocacy.

Annual Conference and the Mission and Ministry Board (formerly the General Board) also consistently have taken public stands on matters of peace and conflict, issuing statements and resolutions. In one such statement, the 1991 statement on Peacemaking (www.brethren.org/ac/statements/1991-peacemaking), the Church of the Brethren established that it shall “advance efforts toward a more peaceful world order through supporting the peacemaking efforts of the United Nations and recognizing the jurisdiction of the International Court of Justice.” The International Court of Justice (ICJ) was created to deal with disputes between countries that relate to international law. The church in 1991 seemed to recognize the importance of this type of arbiter for furthering conflict resolution and peace.

In an effort to carry out this call, understanding the recent decisions by the ICJ related to Israel and Palestine is important for our advocacy. What has the ICJ decided about Israel’s occupation of Palestine?

South Africa v. Israel and Nicaragua v. Germany

At the end of 2023, South Africa brought a case against Israel to the ICJ under the Genocide Convention (www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf). This case sought an emergency stop to Israel’s attack on Rafah and accused Israel of genocide in its military actions in Gaza. South Africa alleged that there was an intention to “destroy Palestinians in Gaza” while Israel categorically rejected the allegations.

Since the full case could take years to prepare and argue, South Africa asked the court to provide “provisional measures.” These measures are issued ahead of time to prevent any irreparable harm from being done before the court’s final decision is reached.

In January, the ICJ gave an interim judgment (www.icj-cij.org/node/203447) after several days of each side presenting arguments over whether Palestinians in Gaza had certain rights the court must protect. The court found that, in its view, “the facts and circumstances…are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.” Essentially, it decided that there was a risk of irreparable harm to the Palestinian right to be protected from genocide.

The court, due to the urgency of the situation, issued several provisional measures to Israel. It said: “Israel must…take all measures within its power to prevent the commission of” killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction, or imposing measures to intentionally prevent births of Palestinians in Gaza. Among several other measures, it also said that Israel must “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance” to Palestinians in Gaza.

Recently, the ICJ has updated its judgement with a new order for Israel to halt its military offensive in Rafah, keep the Rafah crossing open for humanitarian aid deliveries, and allow United Nations commissions to investigate allegations of genocide (see list of all recent orders by the court at www.icj-cij.org/index.php/decisions).

In another relevant ICJ case from this year, Nicaragua alleged that Germany breached certain international obligations related to Palestine (www.icj-cij.org/sites/default/files/case-related/193/193-20240301-app-01-00-en.pdf). This is because Germany provided aid including military assistance and export and authorization of export of military equipment and war weapons to Israel, all of which could be used in violation of international law, particularly the Genocide Convention. As of this point in the proceedings, the court has ordered that the circumstances currently do not warrant it to issue provisional measures or stop Germany from providing this aid (www.icj-cij.org/sites/default/files/case-related/193/193-20240430-sum-01-00-en.pdf).

Advisory opinion in July 2024

In December 2022, the United Nations General Assembly adopted a resolution (www.icj-cij.org/sites/default/files/case-related/186/186-20230117-REQ-01-00-EN.pdf) requesting the legal opinion of the ICJ on two specific questions:

What are the legal consequences of Israel’s prolonged occupation of Palestinian territory since 1967, including its adoption of measures aimed at altering the demographics of Jerusalem and discriminatory legislation?
How do Israel’s above policies and practices affect the legal status of the occupation and what legal consequences does this imply for all States and the United Nations?

The UN Charter in its Article 96 gives the ICJ the ability to give advisory opinions. These serve as legal advice provided to the United Nations or certain specialized agencies who request the opinion. Except in certain rare cases, the court’s advisory opinions are not binding or obligatory. Nevertheless, the court’s advisory opinions carry great weight, both legally and morally.

Almost a year and a half after the request, the ICJ issued its opinion. In its Advisory Opinion from July 19, 2024, “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem” (www.icj-cij.org/sites/default/files/case-related/186/186-20240719-adv-01-00-en.pdf), the ICJ decided that:

In answering the first question,

Israel’s continued presence in the Occupied Palestinian Territory is unlawful.
Israel is obligated to: end its unlawful presence there as fast as possible; stop any new settlement activities; evacuate all settlers; and make reparation for damage it caused to all people in the Occupied Palestinian Territory.

In regard to the second question,

All States, international organizations, and the United Nations are obligated not to recognize Israel’s occupation as legal. States must not give aid or assistance to Israel in maintaining its presence there.
The United Nations, especially the Security Council, should consider the type of action required to bring an end as soon as possible to Israel’s presence in Occupied Palestinian Territory.

According to the court, “occupation” consists of the exercise by a State of effective control in a foreign territory. The Israeli settlements that occupy the West Bank and East Jerusalem (Occupied Palestinian Territory), and their administration, have been established and are being maintained in violation of international law. This is because, by trying to annex or get sovereignty over the West Bank and East Jerusalem, Israel is going against the prohibition of the use of force in international relations and the non-acquisition of territory by force. Israel’s actions as an occupying power also have resulted in the prolonged deprivation of the Palestinian people of its fundamental right to self-determination. This opinion is in line with the ICJ’s 2004 opinion on the Legal Consequences of the Construction of a Wall in the occupied Palestinian territories (www.icj-cij.org/case/131).

The discriminatory legislation and measures used by Israel in these occupied territories are also against international law, says the court. This is because it treats Palestinians differently from Israelis for reasons prohibited by international law: race, religion, or ethnic origin (this violates Article 2 of the International Covenant on Civil and Political Rights (ICCPR); Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and Article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination). The court concluded that this differentiation of treatment cannot be justified with reference to reasonable and objective criteria nor a legitimate public aim.

What about the ICC?

Some may have heard recently of the International Criminal Court (ICC) also taking action regarding Israel and Palestine. Distinct from the ICJ, the ICC investigates individuals and, where warranted, tries those who are charged with the gravest crimes of concern to the international community including genocide, war crimes, crimes against humanity, and the crime of aggression.

In May 2024, the ICC’s prosecutor, Karim Khan, sought arrest warrants for leaders of both Israel and Hamas. He said he has reasonable grounds to believe that several defense and political leaders of both sides, including Israeli Prime Minister Benjamin Netanyahu, were criminally responsible for war crimes and crimes against humanity (www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrest-warrants-situation-state). The United Kingdom filed a brief that challenged the ICC’s jurisdiction over Israeli nationals in the investigation. This has delayed the decision-making process on whether or not to issue arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.

To continuing our legacy of peacemaking

International law and bodies like the ICJ cannot resolve conflicts in and of themselves, but they have a part to play in slowing down and pushing back against war, war crimes, and other global injustices.

The international community, of which we as the Church of the Brethren are members, can push for the implementation of ICJ recommendations. A failure to do so could embolden actors such as Israel to defy international law and act with impunity.

We’ve yet to bring about God’s vision of a peaceful, just world. But this reality remains one worth advocating for, and our perspective as Brethren is as relevant today as it has ever been.

— Christy Baile Crouse is a Church of the Brethren member and a US attorney who informally advises the Church of the Brethren’s Office of Peacebuilding and Policy on matters of international law. She is a legal researcher for the International Area at the Center of Study on Law, Justice, and Society (Dejusticia), a human rights NGO in Bogotá, Colombia. Her home congregation is Warrensburg (Mo.) Church of the Brethren. She also enjoys attending Washington (D.C.) City Church of the Brethren virtually, especially while she lives abroad.

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