The Illegality of Israel’s Occupation of Palestinian Territory: A Critical Analysis of the 2024 ICJ Advisory Opinion
- Lex Amica
- Sep 10
- 5 min read
By Idris Osong’o*
1. Introduction
In July 2024, the International Court of Justice (ICJ) delivered an Advisory Opinion declaring Israel’s presence in the Occupied Palestinian Territory (OPT), encompassing the West Bank, East Jerusalem, and the Gaza Strip, as inherently unlawful and illegal under international law. This Opinion, prompted by a UN General Assembly request in December 2022, addresses the legal consequences of Israel’s policies and practices in the OPT, concluding that they violate fundamental norms, including the prohibition on the use of force, the right to self-determination, and obligations under international humanitarian and human rights law. This essay critically analyzes the reasoning, legal foundations, and implications of the ICJ’s Opinion. It argues that the Opinion’s finding of inherent illegality marks a significant yet controversial evolution in the law of occupation, with far-reaching consequences for states and international organisations.
2. The Legal Framework of Occupation and Its Application to the OPT
The law of occupation, codified in the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949, governs a foreign state’s exercise of effective control over territory that is not its own. The ICJ clarified that territory is occupied when a state establishes and exercises authority, which may not require a continuous physical military presence but can include the capacity to project authority within a reasonable time. This interpretation is critical for the Gaza Strip, where Israel, despite withdrawing its ground forces in 2005, retains control over borders, airspace, and essential services, thereby incurring obligations as an occupying power. Gross affirms that effective control, rather than physical presence, determines occupation status, particularly in modern contexts where remote control mechanisms are prevalent (Gross, 2017, p. 45).
The ICJ’s Opinion departs from the traditional view that the law of occupation is neutral regarding the legality of an occupying power’s presence. It asserts that Israel’s policies, including settlements, resource exploitation, and the application of Israeli domestic law in the West Bank and East Jerusalem, are designed to entrench control and create irreversible effects, amounting to a de facto annexation. This aligns with academic arguments that prolonged occupations may violate international law when they undermine the temporary nature of occupation (Kretzmer, 2021, p. 112).
3. The Illegality of Israel’s Occupation: A Novel Interpretation
The ICJ’s conclusion that Israel’s occupation is inherently unlawful rests on its breach of jus ad bellum (the law governing the use of force) under Article 2(4) of the UN Charter and the Palestinian people’s right to self-determination under customary international law. The Court posits that occupation involves a continued use of force, and when it serves annexation, as evidenced by Israel’s settlement expansion, it loses any justification under the self-defense argument. This reasoning challenges the traditional separation between jus ad bellum and jus in bello (the law governing the conduct during hostilities). Dinstein argues that jus in bello applies irrespective of the occupation’s legality, highlighting a potential overreach in the ICJ’s approach (Dinstein, 2019, p. 23).
Dissenting judges, including Tomka, Abraham, Sebutinde and Aurescu, contend that declaring the occupation itself illegal requires considering security concerns and cannot solely rely on annexation policies. They argue that any occupation inherently restricts self-determination, but this alone does not render it unlawful. The majority, however, distinguish between temporary interference and policies intended to permanently prevent self-determination, a distinction supported by academic debates on prolonged occupations (Milanović, 2020, p. 89). The ICJ’s focus on Israel’s permanent structures, such as settlements and the separation wall, frames the occupation as a structural violation of international law.
4. Discrimination and Apartheid: The ICJ’s Findings
The ICJ found Israel’s policies, including residence permit restrictions, movement limitations, and property demolitions, discriminatory and in breach of Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Although the Court does not explicitly label these practices as apartheid, Judge Tladi’s observation that they mirror South Africa’s apartheid regime in nature and effect suggests a compelling case for such a classification. Dugard and Reynolds argue that Israel’s systematic segregation policies in the OPT meet the legal definition of apartheid under international law (Dugard & Reynolds, 2013, p. 867).
The Opinion’s attention to intersectional discrimination, particularly against Palestinian women and children, is notable. It highlights gender-based violence and the impact of residence policies on family reunification, with Judge Charlesworth emphasising the compounded effects on marginalised groups. This reflects a growing recognition in international law of intersectionality, as noted by Crenshaw, who underscores the need to address overlapping forms of discrimination (Crenshaw, 2017, p. 139). The Court’s hesitation to definitively classify Israel’s policies as apartheid may reflect a judicial compromise to maintain consensus, potentially undermining the clarity of the Opinion on this point.
5. Implications for States and International Organizations
The ICJ imposed obligations on third states to refrain from recognising Israel’s unlawful presence, abstain from treaty relations that entrench it, and avoid trade or investment sustaining the illegal situation. The United Nations was urged to determine the modalities for rapidly ending Israel’s presence. The General Assembly’s resolution (ES-10/24), demanding Israel’s withdrawal by September 2025, underscores the Opinion’s immediate impact. Orakhelashvili emphasises that such obligations are binding on states under customary international law, compelling action to uphold the international legal order (Orakhelashvili, 2022, p. 56).
However, implementing these obligations faces several challenges. Sanger notes that Israel’s economic integration of settlements complicates efforts to isolate unlawful activities (Sanger 2025). The dissenting judges’ emphasis on security considerations highlights political barriers to compliance. States balancing diplomatic relations with Israel may resist full compliance, as observed in their historical reluctance to enforce similar ICJ rulings (Falk, 2021, p. 34).
6. Critical Evaluation
The ICJ’s Opinion is novel for its unambiguous declaration of Israel’s occupation as unlawful, integrating jus ad bellum, self-determination, and human rights law into the law of occupation. The clarification of effective control without requiring physical presence provides a flexible framework for modern occupations, particularly in Gaza. However, conflating jus ad bellum and jus in bello risks legal incoherence, potentially complicating their application elsewhere (Dinstein, 2019, p. 25). The dissent’s focus on security concerns reflects a pragmatic critique that acknowledges the tension between normative principles and geopolitical realities.
The Opinion’s reluctance to explicitly label Israel’s policies as apartheid despite strong evidence may weaken its moral and legal impact. Nevertheless, its intersectional approach and robust obligations on third states strengthen its contribution to international law. The success of the Opinion will depend on the international community’s willingness to act, navigating the complex interplay of law and politics.
7. Conclusion
The 2024 ICJ Advisory Opinion decisively frames Israel’s occupation of the OPT as inherently unlawful, violating core international law norms. By analysing the Opinion, this essay demonstrates its significance in redefining the law of occupation, while highlighting its legal and practical challenges. The Opinion’s clarity on third-state obligations and nuanced approach to effective control and discrimination provide a strong legal foundation, but its implementation remains uncertain amid political constraints.
*The writer is a student of law at the Makerere University School of Law