Written statement of Algeria

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
19048
INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES ARISING FROM THE POLICIES
AND PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY,
INCLUDING EAST JERUSALEM
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT OF THE GOVERNMENT OF THE PEOPLE’S
DEMOCRATIC REPUBLIC OF ALGERIA
[Translation by the Registry]
In operative paragraph 18 of its resolution A/RES/77/247 on “Israeli practices affecting the
human rights of the Palestinian people in the Occupied Palestinian Territory, including East
Jerusalem”, adopted on 30 December 2022, the General Assembly of the United Nations requested
the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an
advisory opinion on the following two questions:
“(a) What are the legal consequences arising from the ongoing violation by Israel of the
right of the Palestinian people to self-determination, from its prolonged occupation,
settlement and annexation of the Palestinian territory occupied since 1967, including
measures aimed at altering the demographic composition, character and status of the
Holy City of Jerusalem, and from its adoption of related discriminatory legislation
and measures?
(b) How do the policies and practices of Israel referred to in paragraph 18 (a) above
affect the legal status of the occupation, and what are the legal consequences that
arise for all States and the United Nations from this status?”.
The Government of the People’s Democratic Republic of Algeria submits the following statement in
response to the Court’s Order of 3 February 2023 fixing the time-limits within which written
statements concerning these two questions may be presented to the Court.
___________
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TABLE OF CONTENTS
Page
Introduction ........................................................................................................................................ 1
I. Resolution 77/247 of 30 December 2022 ....................................................................................... 1
I.1 The context of its adoption ...................................................................................................... 1
I.2 Observations on its content ...................................................................................................... 2
I.3 Observations on the questions put to the Court ....................................................................... 4
II. The Court is acting within its mandate in responding favourably to the General Assembly’s
request ........................................................................................................................................... 4
II.1 The jurisdiction of the International Court of Justice to give an advisory opinion ................ 6
II.1.1 Israel’s arguments against the jurisdiction of the Court ................................................. 7
II.1.1.1 The General Assembly exceeded its competence ................................................... 7
II.1.1.2 The question posed is not a legal one .................................................................... 7
II.1.2 The response of the Court .............................................................................................. 8
II.1.2.1 Regarding the first argument ................................................................................. 8
II.1.2.2 Regarding the second argument ............................................................................. 8
II.2 The Court’s discretionary power to give an advisory opinion ............................................... 9
II.2.1 Israel’s arguments .......................................................................................................... 9
II.2.1.1 The written statement of 30 January 2004 ............................................................. 9
II.2.1.2 The written and oral statements of 27 February and 5 September 2018 ............. 10
II.2.2 The Court’s rejection of Israel’s arguments ................................................................. 11
III. Violations of the right of the Palestinian people to self-determination, a peremptory norm
under international law ................................................................................................................ 13
III.1 General observations ........................................................................................................... 13
III.2 Basic treaty sources ............................................................................................................. 14
III.3 Resolution-based sources .................................................................................................... 14
III.4 Sources in the jurisprudence of the International Court of Justice ...................................... 15
III.5 Sources in the work of the International Law Commission ................................................ 16
III.5.1 The Draft Articles on Responsibility of States for Internationally Wrongful Acts
.......................................................................................................................................... 16
III.5.2 The work on “peremptory norms of general international law (jus cogens)” ............. 16
IV. Violations of international humanitarian law ............................................................................. 17
IV.1 The international legal status of the Palestinian territories under Israeli occupation:
characterization of the situation of occupation of the West Bank and East Jerusalem
under international law .......................................................................................................... 17
IV.2 The illegality of Israel’s prolonged occupation of the occupied Palestinian territories ...... 21
IV.3 Israel’s obligation to respect the applicable rules in the occupied territories ..................... 24
IV.3.1 The applicability of international humanitarian law ................................................... 24
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IV.3.2 The law applicable to the West Bank as an “occupied territory” ............................... 26
IV.3.3 The particular situation in the Gaza Strip ................................................................... 27
V. Violations of international human rights law .............................................................................. 29
V.1 The Israeli measures “aimed at altering demographic composition” persistently violate
the rights of the Palestinian people ........................................................................................ 31
V.2 The construction and expansion of Israeli settlements ......................................................... 32
V.3 Demolitions, evictions and risk of forced displacement of the Palestinian populations ...... 34
V.4 The illegal operations involving the seizure and destruction of property in the occupied
Palestinian territories ............................................................................................................. 35
V.5 The discriminatory laws on the right to housing .................................................................. 37
V.6 Acts amounting to annexation, including unilateral actions taken by Israel to dispose
of parts of the Occupied Palestinian Territory as if it held sovereignty over it .................... 37
VI. How the policies and practices of Israel affect the status of the occupation .............................. 38
VI.1 The prolonged occupation................................................................................................... 39
VI.2 The construction of Israeli settlements in the West Bank and East Jerusalem ................... 40
VI.3 The de facto annexation of certain parts of the Occupied Palestinian Territory, such
as East Jerusalem ................................................................................................................... 40
VI.4 Israel’s restrictions on the freedom of movement of Palestinians ...................................... 40
VI.5 Physical separation ............................................................................................................. 40
VI.6 The disproportionate use of lethal force ............................................................................. 40
VI.7 The plundering of Palestinian resources ............................................................................. 41
VI.8 The blockade of Gaza ......................................................................................................... 41
VI.9 The adoption and introduction of discriminatory and segregationist laws and policies ..... 41
VI.10 The prolongation and exacerbation of the political impasse ............................................. 43
VII. The legal consequences for all States and for the United Nations ........................................... 44
VII.1 The legal consequences for Israel ...................................................................................... 45
VII.1.1 Israel’s responsibility is engaged for violations of peremptory norms of
international law ............................................................................................................... 45
VII.1.1.1 The Court’s conclusions in its 2004 Advisory Opinion ..................................... 45
VII.1.1.2 The International Law Commission’s 2001 Draft Articles on State
Responsibility .............................................................................................................. 46
VII.1.2 Israel is under an obligation to make reparation ........................................................ 46
VII.2 The legal consequences for other States ............................................................................ 47
VII.3 The legal consequences for the United Nations ................................................................ 48
Conclusion........................................................................................................................................ 48
INTRODUCTION
On 17 January 2023, by virtue of its resolution A/RES/77/247 of 30 December 2022, the
United Nations General Assembly seised the International Court of Justice (ICJ) of a request for an
advisory opinion on the question of the legal consequences that arise from the policies and practices
of Israel in the Occupied Palestinian Territory, including East Jerusalem.
The question is worded as follows:
“Considering the rules and principles of international law, including the Charter
of the United Nations, international humanitarian law, international human rights law,
relevant resolutions of the Security Council, the General Assembly and the Human
Rights Council, and the advisory opinion of the Court of 9 July 2004:
(a) What are the legal consequences arising from the ongoing violation by Israel of the
right of the Palestinian people to self-determination, from its prolonged occupation,
settlement and annexation of the Palestinian territory occupied since 1967, including
measures aimed at altering the demographic composition, character and status of the
Holy City of Jerusalem, and from its adoption of related discriminatory legislation
and measures?
(b) How do the policies and practices of Israel referred to in paragraph 18 (a) above
affect the legal status of the occupation, and what are the legal consequences that
arise for all States and the United Nations from this status?”
On 17 January 2023, the Secretary-General of the United Nations transmitted the request to
the President of the Court, who notified it to all Member States of the United Nations by letter of
19 January 2023. An Order of the distinguished Court, dated 3 February 2023, fixed “25 July 2023
as the time-limit within which written statements on the questions may be presented to the Court, in
accordance with Article 66, paragraph 2, of the Statute”.
It is pursuant to this Order that the People’s Democratic Republic of Algeria presents its
written statement, in order to set out its point of view and observations on the questions raised by the
General Assembly’s request. As a preliminary matter, however, Algeria will first examine the request
itself.
I. RESOLUTION 77/247 OF 30 DECEMBER 2022
This first part will cover three points in turn: the context in which the resolution was
adopted (I.1), and an analysis of its content (I.2) and of the questions raised by the General
Assembly (I.3).
I.1 The context of its adoption
At its plenary meeting on 16 September 2022, the General Assembly decided, on the
recommendation of the Bureau, to include the item entitled “Israeli practices and settlement activities
affecting the rights of the Palestinian people and other Arabs of the occupied territories” in the agenda
of its seventy-seventh session and to refer it to the Special Political and Decolonization Committee
(Fourth Committee).
On 10 November 2022, by a resounding majority, that Committee adopted draft resolution
A/C.4/77/L.12/Rev.1, entitled “Israeli practices affecting the human rights of the Palestinian people
in the Occupied Palestinian Territory, including East Jerusalem”. Algeria, together with 13 other
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States, including Palestine, was responsible for this initiative, including in particular the wording of
the questions addressed to the ICJ.
That draft resolution proposed requesting an advisory opinion from the ICJ on the legal
consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory,
including East Jerusalem. It was adopted without amendment by the General Assembly on
30 December 2022, under the symbol A/RES/77/247.
I.2 Observations on its content
To provide a more complete and precise picture of the issues raised by resolution 77/247, it
must be noted that the question of the “policies and practices of Israel in the Occupied Palestinian
Territory, including East Jerusalem”, has long been an item on the United Nations agenda of work.
One need only refer to the sixth to eighth preambular paragraphs of the General Assembly’s request
of 8 December 2003 concerning the construction of the wall to be reminded of this.
The issues in question have become even more acute and tragic through the combined effect
of several events which, considered separately and together, contribute not only to the persistence,
but especially to the escalation, of the innumerable violations arising from the de facto and de jure
situation in the Occupied Palestinian Territory, including East Jerusalem.
In this regard, and without seeking to be exhaustive, Algeria will discuss the most pertinent
examples of the ongoing, gross violations by Israel, the occupier, of the most basic rules and
principles of international law affecting the daily lives of the Palestinian people.
In doing so, it notes that these aspects are referred to explicitly and at length in the preamble
and operative part of resolution 77/2471 and that they are summarized in paragraph 18 thereof, which
will be examined more closely at a later point.
Noting at the outset that resolution 77/247 is composed of a lengthy preamble comprising
52 paragraphs and an operative part of 18 paragraphs, Algeria would make two observations. It
would first highlight the differences between that resolution and General Assembly resolution
ES-10/142, which was adopted on 8 December 2003 at the beginning of its resumed tenth emergency
special session, and in which the Assembly had formulated its request relating to the construction of
the wall.
The latter resolution, which was not supported by a preamble, comprised only 21 paragraphs.
Algeria further observes that, despite the irrefutable fact that resolution 77/247 follows on from
resolution ES-10/14, these differences are far from being purely formal or inconsequential.
The December 2022 resolution, which inevitably took account of the extension and expansion
of Israel’s policies and practices, resembles an explanatory statement, albeit one that is less concise
than normal. It is more detailed, more precise and more reasoned. It is striking in its denunciatory
tone towards the practices and policies of Israel, which are characterized by numerous violations of
international law in the Occupied Palestinian Territory, including East Jerusalem.
Resolution 77/247 repeatedly underscores the strong paradox between the international law
applicable to Israel’s policies and practices, and the systematic, continuing and gross violation of this
law by the Israeli authorities. It is as if each well-established element of international law recognizing
1 General Assembly resolution on Israeli practices affecting the human rights of the Palestinian people in the
Occupied Palestinian Territory, including East Jerusalem, 30 Dec. 2022, A/RES/77/247.
2 General Assembly resolution on illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied
Palestinian Territory, 8 Dec. 2003, A/RES/ES-10/14.
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the rights of the Palestinian people is countered by an element of fact which serves to deny them.
This paradox can be seen in both the preamble and the operative paragraphs.
It is important to highlight the preamble’s most noteworthy points. First, it recalls a number of
legal sources and documents that were relied upon by the General Assembly and, before it, by the
Fourth Committee.
More specifically, it should be noted that the preamble begins by referring to the relevant basic
legal texts applicable to all States. With regard to this approach, it is highly symbolic and significant
that the Universal Declaration of Human Rights is mentioned in the first paragraph of the preamble.
It should also be noted that the resolution then refers to the two 1966 Covenants and the
Convention on the Rights of the Child, as well as various reports on Israeli practices and policies in
the Occupied Palestinian Territory, including East Jerusalem.
Unlike the December 2003 request concerning the consequences of the construction of the
wall, whose 17th and 19th preambular paragraphs referred to the report of the Special Rapporteur of
the Commission on Human Rights of 8 September 2003 and the report of the Secretary-General of
the United Nations, the December 2022 request relies on several documentary sources.
These sources are first cited in the sixth to eighth preambular paragraphs of resolution 77/247.
They include the report of the Special Committee to Investigate Israeli Practices Affecting the Human
Rights of the Palestinian People, the report of the Secretary-General on the work of the Special
Committee, the report of the Special Rapporteur of the Human Rights Council on the situation of
human rights in the Palestinian territories occupied since 1967, as well as other relevant recent
reports. Finally, the eighth preambular paragraph refers to the report of the international commission
of inquiry established pursuant to Human Rights Council resolution S-30/1.
On the basis of this very solid documentation, the preamble proceeds to set out the numerous
legal violations resulting from the policies and practices of Israel. In this regard, Algeria calls
attention to the paragraphs of the preamble that refer, in particularly strong terms, to the failure to
respect the Palestinian people’s right to self-determination, and to violations of the fundamental rules
of international humanitarian law and international human rights law.
The General Assembly has repeatedly used verbs and expressions such as “deplore” and
“gravely concerned” to paint a damning portrait of the violations of international law imputable to
Israeli policies and practices. The 19 operative paragraphs of the resolution, for their part, draw the
necessary conclusions therefrom.
Algeria will now highlight the differences between the 2003 and 2022 resolutions.
The December 2022 resolution has drawn on the Advisory Opinion of 2004, as it is the basis
for the many paragraphs noting or recalling Israel’s various violations of international law. Such is
the case of the first operative paragraph, for example, which “reiterates that [the] measures and
actions taken by Israel . . . have no validity” and “demands that Israel, the occupying Power, comply
fully with the provisions of the Fourth Geneva Convention of 1949”.
This approach is even more apparent in paragraph 11, in which the General Assembly
“demands that Israel, the occupying Power, comply with . . . international law, as mentioned in the
advisory opinion rendered on 9 July 2004 by the International Court of Justice . . . and that it
immediately cease the construction of the wall”. Algeria moreover notes that this paragraph is
surrounded by paragraphs [9], 12 and 13, which respectively emphasize the “acts of violence by
militants and armed groups”, “the need for respect for the territorial unity, contiguity and integrity
of . . . the Occupied Palestinian Territory”, and the need to “cease its imposition of prolonged
closures and economic . . . restrictions”.
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This interplay between law and fact has guided the questions put to the Court by the General
Assembly.
I.3 Observations on the questions put to the Court
Although the questions posed in December 2003 and December 2022 are very similar
semantically and in terms of the issues raised, they do present some key differences. As one of the
States having sponsored the two draft resolutions, Algeria has a few observations to make in this
regard.
Algeria will then consider the substantive questions raised by the request, following the
general outline of the questions that were originally suggested by the group of 14 States that
sponsored the draft resolution in the context of the work of the Special Political and Decolonization
Committee (Fourth Committee) and were subsequently adopted by the General Assembly.
These questions are directly related to the policies and practices of Israel that are set out in
considerable detail in paragraph 18 (a), namely “the ongoing violation by Israel of the right of the
Palestinian people to self-determination, . . its prolonged occupation, settlement and annexation of
the Palestinian territory occupied since 1967, including measures aimed at altering the demographic
composition, character and status of the Holy City of Jerusalem, and . . . its adoption of related
discriminatory legislation and measures”.
The paragraph in question specifies that an advisory opinion is requested “considering the
rules and principles of international law, including the Charter of the United Nations, international
humanitarian law[ and] international human rights law” (emphasis added). This formulation has been
used in previous General Assembly requests, including the one relating to the construction of the
wall.
Without analysing this phrase in detail, the Court considered, in paragraph 88 of its Advisory
Opinion of 9 July 2004, that it refers to the question of the applicable law. It in fact establishes a
causal link between the policies and practices of Israel and the applicable law. Its purpose is to specify
the legal context in which these policies and practices are to be assessed by the Court.
Following this general overview, in the second part of its written statement, Algeria will first
endeavour to demonstrate that the Court, which states the law, is acting within its mandate in
responding favourably to the General Assembly’s request (II). This is a necessary preliminary point
for logical and historical reasons.
Next, in keeping with the approach taken and questions raised by the General Assembly,
Algeria will examine the violations of the Palestinian people’s right to self-determination (III).
It will then discuss the equally serious and gross violations of international humanitarian
law (IV) and international human rights law (V), and how the policies and practices of Israel affect
the status of the occupation (VI).
Lastly, Algeria will provide its views on the last question raised by the General Assembly,
concerning the legal consequences that arise for all States and the United Nations from this status.
II. THE COURT IS ACTING WITHIN ITS MANDATE IN RESPONDING
FAVOURABLY TO THE GENERAL ASSEMBLY’S REQUEST
Without seeking to be exhaustive, and fully aware of the objective limits to which written
statements are subject, Algeria will endeavour to demonstrate that the Court is acting within its
mandate in giving the advisory opinion requested by the General Assembly. It will examine and rebut
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all the possible arguments that could be adduced in the present case in objection to the Court’s
advisory function.
The modal “could” is of course the appropriate term here, given that the discussion that follows
is, from a procedural perspective, anticipatory in nature, since written statements may be submitted
until 25 July 2023. Only from a procedural perspective, since a careful examination of past
proceedings clearly shows an overlap of the objections raised. Algeria will return to this point below.
On the basis of this examination, a number of observations can be made.
Algeria will set out the three observations that are most relevant to the request concerning
Israeli policies and practices in the Occupied Palestinian Territory.
 The first is that the argument that the Court should decline to give an advisory opinion is put
forward by a tiny minority of States.
 The second concerns the emergence of a trend towards the systematization of objections to the
exercise of the Court’s advisory function, to the extent that some written statements address such
objections exclusively.
 The third concerns the recurrent nature of the legal arguments in favour of the Court declining
to exercise its advisory function, despite there being major factual and legal differences between
the matters submitted by the General Assembly.
This repetition is acknowledged by the Court itself, when it routinely refers, in dismissing the
objections raised by some States, to the analyses it has provided in previous advisory opinions. It
echoed this point in its Advisory Opinion on the construction of the wall, noting in paragraph 51 that
“this is a submission of a kind which [the Court] has already had to consider several times in the
past”.
Algeria considers that due attention must be given to this repetition, indeed this trend towards
the systematization of arguments effectively reflecting a certain reluctance with regard to the
advisory function of the Court, and has thus devoted this part of its written statement to these points.
Algeria has contributed to the discussion of this function, through the oral statement it presented in
February 2004 in the context of the advisory proceedings on the request concerning the construction
of the wall.
That statement addressed the question of the objections raised in the written statements of
certain States, which concerned two main points: jurisdiction and the judicial propriety of rendering
an advisory opinion.
In its statement, Algeria argued that all the objections to the exercise of the Court’s advisory
function made in the written statements should be dismissed. It will return to this point following a
brief overview of some of the best-known advisory opinions that have the advantage of sharing some
similarities with the General Assembly’s December 2022 request.
However, Algeria will first make an important observation regarding the written statements’
distortion of the methodological precautions taken by the Court in prefacing its response to each of
the objections raised. In those preliminary remarks, the Court presents the different procedural
responses that may be given to such objections. The distortion in question consists in using the
Court’s general theoretical presentation as a pretext to suggest that it has not necessarily agreed to
respond favourably to the General Assembly’s request.
Having made this observation, Algeria would first recall that, starting with its Advisory
Opinion of 21 June 1971 on the Legal Consequences for States of the Continued Presence of South
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Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)3, the
Court began using a formulation that it has gradually refined to the point of becoming nearly standard
phrasing.
Indeed, in paragraph 19 of that Opinion, the Court specified that “[b]efore examining the
merits of the question submitted to it the Court must consider the objections that have been raised to
its doing so”.
In paragraph 12 of its Advisory Opinion of 16 October 1975 concerning Western Sahara4, the
Court noted that it would “first consider certain matters regarding the procedure adopted in the
present case”.
In paragraph 54 of its most recent Advisory Opinion, rendered in 2019 with regard to the
Chagos Archipelago, the Court stated that, when seised of a request for an advisory opinion, “it must
first consider whether it has jurisdiction to give the opinion requested and if so, whether there is any
reason why the Court should, in the exercise of its discretion, decline to answer the request”.
For reasons that hardly need explaining, however, it is the Advisory Opinion of 9 July 2004
that will be the main focus of Algeria’s observations in this section.
Paragraph [13] of that Opinion, which is reproduced verbatim in the above-mentioned passage
from the Advisory Opinion on the Chagos Archipelago, provides that “[w]hen seised of a request for
an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion
requested and whether, should the answer be in the affirmative, there is any reason why it should
decline to exercise any such jurisdiction”. Subject to the key observation that follows, Algeria will
follow that same approach in setting out its discussion in this part of its written statement.
In keeping with the overall logic and approach adopted by the Court in its various advisory
opinions, but also, as previously mentioned, with a view to anticipating any objections that may be
raised in an effort to have the Court decline the General Assembly’s pending request, Algeria will
endeavour to demonstrate below the tenuousness of these objections.
The first question to be considered is whether the Court has jurisdiction to give this advisory
opinion (II.1). The second question that will be addressed by Algeria is the discretionary power of
the Court, a matter of increasing importance to States that are reluctant to see the Court respond
favourably to the General Assembly’s request. That is, in any case, what emerges from a careful
reading of the written and oral statements of some States (II.2).
II.1 The jurisdiction of the International Court of Justice
to give an advisory opinion
In Algeria’s view, it is necessary to consider this question which has continued to give rise to
objections from some States, despite the relevance and clarity of the Court’s analyses in dismissing
them.
It will examine these objections, albeit briefly. Given the similarities, it would not be surprising
if the types of arguments put forward in recent cases were to inspire any States that might seek to
challenge the jurisdiction of the Court in the present case.
3 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16.
4 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12.
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In considering these objections, Algeria would note that they were central to Israel’s written
statement of 30 January 2004 on the construction of the wall in the Occupied Palestinian
Territory (II.1.1). The Court responded to them at length in paragraphs 22 to 43 of its Advisory
Opinion in that case (II.1.2).
II.1.1 Israel’s arguments against the jurisdiction of the Court
Entitled “Objections to jurisdiction”, part two of Israel’s written statement was divided into
two chapters bearing the titles “The request is ultra vires the competence of the 10th Emergency
Special Session and/or the General Assembly” and “The request does not raise a legal question within
the scope of Article 96 (1) of the Charter and Article 65 (1) of the Statute”.
According to the written statement, “the Court lacks jurisdiction” to consider the request for
an advisory opinion for two reasons. First, “the request is ultra vires the competence of the
10th Emergency Special Session of the General Assembly” (II.1.1.1). Second, “in order for the Court
to be able to exercise its advisory jurisdiction, a request must have been referred to the Court on a
‘legal question’” (Written Statement [of Israel], p. 120, para. 10.4) (II.1.1.2).
II.1.1.1 The General Assembly exceeded its competence
The first argument, discussed at length, was that, “given the active engagement of the Security
Council with the situation in the Middle East, including the Palestinian question, the General
Assembly acted ultra vires under the Charter” (Advisory Opinion, I.C.J. Reports 2004, p. 148,
para. 24). According to the written statement, the General Assembly thus failed to respect both the
letter and the spirit of the Charter.
II.1.1.2 The question posed is not a legal one
The second argument highlighted the non-legal nature of the question posed by the General
Assembly, notwithstanding the rhetorical repetition of the qualifier “legal”.
It was put forward inter alia by States in the four cases mentioned above, and more particularly
by Israel in the case concerning the construction of the wall. Emphasis was placed on the both highly
political and biased nature of the General Assembly’s approach.
This contention is thus aimed  sometimes implicitly, other times much more explicitly  at
denying the General Assembly’s right to request an advisory opinion. Many General Assembly
requests are in fact strongly suspected of constituting misuse of the advisory procedure for the
purpose of settling a bilateral dispute.
The advisory procedure is said to be mere legal window-dressing intended to circumvent
contentious proceedings relating to a dispute that one of the parties specially concerned has not
consented to settle. However, the lack of consent of one of the parties renders the giving of an
advisory opinion incompatible with the fundamental rule of consent enshrined in the Court’s Statute.
This analysis continues to be regularly put forward, even though the Court stated as far back
as 1971, in its Advisory Opinion on the continued presence of South Africa in Namibia, that
“[d]ifferences of views among States on legal issues have existed in practically every advisory
proceeding; if all were agreed, the need to resort to the Court for advice would not arise”.
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Despite this dictum of the Court, the question has recurrently been central to the approaches
taken by a number of States. As previously mentioned, it is addressed in Israel’s written statement,
where it is the subject of an entire chapter.
Paragraph 5.2 of chapter 5 states that “[t]he question referred to the Court in this case is not a
‘legal question’ within the scope of Article 96 (1) of the Charter and Article 65 (1) of the Statute.
Israel’s objection . . . is that the question referred to the Court is uncertain in its terms with the result
that it is not amenable to a response by the Court”. In accordance with paragraph 5.3 of the statement,
“[f]or a question to constitute a legal question . . . it must be reasonably specific”, as provided for in
Article 65, paragraph 2, of the Court’s Statute. According to that provision, “[q]uestions upon which
the advisory opinion of the Court is asked shall be laid before the Court by means of a written request
containing an exact statement of the question upon which an opinion is required”.
II.1.2 The response of the Court
II.1.2.1 Regarding the first argument
Having set out its reasoning in paragraphs 25 et seq., the Court goes on to state, in
paragraph 28, that it considers that “the . . . practice of the General Assembly, as it has evolved, is
consistent with Article 12, paragraph 1, of the Charter” and concludes that the General Assembly
therefore “did not exceed its competence”.
Subsequently, in an overall conclusion on this question in paragraph 42, the Court holds that
it “has jurisdiction to give the advisory opinion requested by resolution ES-10/14 of the General
Assembly”.
II.1.2.2 Regarding the second argument
At the outset, Algeria would recall that the firm and consistent approach of the Court has
always involved setting out the issues raised with regard to the question of its jurisdiction. There
being no shortage of examples, Algeria will mention only a few, which moreover have points in
common with the current request of the General Assembly.
In paragraph 15 of its 1996 Advisory Opinion on the legality of the use of nuclear weapons,
the Court already clearly expressed its desire to satisfy itself as to the legal nature of the General
Assembly’s request.
In so doing, it took a rigorous approach, setting out the general matter at issue in the following
terms: “The Court must furthermore satisfy itself that the advisory opinion requested does indeed
relate to a ‘legal question’ within the meaning of its Statute and the United Nations Charter”.
However, it went on to recall paragraph 15 of its Advisory Opinion on Western Sahara, in which it
stated that questions “framed in terms of law and rais[ing] problems of international law . . . are by
their very nature susceptible of a reply based on law . . . [and are] questions of a legal character”.
Furthermore, in its 2010 Advisory Opinion on the Accordance with International Law of the
Unilateral Declaration of Independence in respect of Kosovo, the Court stated, in terms never before
used, that “[a] question which expressly asks the Court whether or not a particular action is
compatible with international law certainly appears to be a legal question” (I.C.J. Reports 2010,
pp. 414-415, para. 25). It added in paragraph 27, in terms that marked a major milestone, that “the
fact that a question has political aspects does not suffice to deprive it of its character as a legal
question”.
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“[T]he Court cannot refuse to respond to the legal elements of a question which invites it to
discharge an essentially judicial task, namely, in the present case, an assessment of an act by
reference to international law”; this dictum had already been pronounced repeatedly in previous
proceedings.
Lastly, and in the same vein, the Court specifies in paragraph 27 that, “in determining the
jurisdictional issue of whether it is confronted with a legal question, it is not concerned with the
political nature of the motives which may have inspired the request or the political implications which
its opinion might have” (ibid.).
Algeria endorses the aforementioned approach, analyses and conclusions of the Court, mutatis
mutandis, in the event that any such objections to jurisdiction may be raised. It considers that the
Court has jurisdiction to deal with Israel’s policies and practices in the Occupied Palestinian
Territory, all the more so because  and this argument is of particular importance  the request
concerns only questions which are extremely legal and precise in nature. Such is the case of those
relating to the future of the Palestinian people’s right to self-determination or the legal concepts,
well-established in international law, of occupation, settlement and annexation.
A second type of objection, which is gaining ground among States that have expressed
reluctance towards requests for advisory opinions, concerns the question of the judicial propriety of
giving an advisory opinion, and thus the Court’s discretionary power in this respect.
II.2 The Court’s discretionary power to give an advisory opinion
As previously noted by Algeria with regard to the matter of jurisdiction, the Court has always
undertaken to examine the propriety of exercising its judicial function.
Such was the case, for example, with the General Assembly’s request for an advisory opinion
on the legality of the use by a State of nuclear weapons. In paragraph 14 of the Advisory Opinion in
question, the Court held, with regard to its discretion as to whether to accede to the General
Assembly’s request, that it “can only exercise this discretionary power if it has first established that
it has jurisdiction in the case in question”. This is an example of the pedagogical approach taken by
the Court, which does not seek to evade any of the objections raised in the written statements
submitted by States, some of which have attempted to distort the objective pursued by the Court.
This question figures prominently in Israel’s arguments, which Algeria will present (II.2.1)
and then rebut on the basis of the firm and consistent position of the Court (II.2.2), before providing
its own observations on the matter (II.2.3).
II.2.1 Israel’s arguments
Presented for the first time in its written statement of 30 January 2004 in the advisory
proceedings on the consequences of the construction of the wall in the Occupied Palestinian
Territory, these arguments were repeated in the written and oral statements presented on 27 February
2018 and 5 September 2018, respectively, that is, 14 years later, in the advisory proceedings resulting
from the request submitted to the Court with regard to the Chagos Archipelago.
II.2.1.1 The written statement of 30 January 2004
According to this statement, there are three main reasons that should lead the Court to decline
to give the advisory opinion requested by the General Assembly.
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The first concerns the existence of “principles relevant to . . . the exercise by the Court of its
discretion under Article 65 (1) of the Statute”. According to this reasoning, the Court is bound to
remain faithful to the requirements of its judicial character and must take into consideration the
inherent limitations of its advisory function.
The second reason relates to the characteristics of the question asked, which concerns “a
contentious matter in respect of which Israel has not given consent to the jurisdiction of the Court”.
The third reason emphasizes that the request raises questions “which [cannot] be elucidated
without hearing both parties”, and that “there is insufficient evidence before the Court to enable it to
make findings of fact”.
II.2.1.2 The written and oral statements of 27 February and 5 September 2018
Before examining these statements, it is worth pointing out that they were foreshadowed by
the statement by which Israel expressed its opposition to the General Assembly’s request concerning
the Chagos Archipelago.
Israel considered that resolution A/RES/71/292 “seeks to refer a bilateral dispute to the
International Court of Justice” and that “[t]he underlying approach . . . represents . . . a misuse of the
advisory opinion provision under Article 96 of the Charter of the United Nations”.
The statements in question persistently and emphatically reiterate the arguments for declining
to reply to the request of the United Nations General Assembly concerning the Chagos Archipelago,
relying  although they deny it  on the very same ideas and stylistic elements used fourteen years
earlier in connection with the request concerning the wall. Indeed, on the one hand, Israel claims in
paragraph 1.5 of its written statement that the latter is “limited to issues of judicial propriety”. On
the other, it employs the stylistic device of praeteritio in adding: “In particular, it does not intend to
deal with jurisdictional issues or the merits of the dispute underlying the case, which Israel indeed
considers to be one of a purely bilateral nature”.
In other words, the written statement refers to arguments that it claims it does not wish to
address. In Algeria’s view, this statement essentially sets out the “two cogent reasons [which]
mandate that the Court should decline to give the advisory opinion requested in the present case”. In
addition to the first reason, which is that “the fundamental principle of consent to jurisdiction must
not be circumvented”, the second reason is that “the advisory opinion procedure is ill-equipped for
the determination of complex and disputed issues of fact that is required in the present case, given
the lack of adversarial procedures and protections available in contentious proceedings”.
In an approach resembling an exercise in autosuggestion, Israel again summons up two
“reasons”, previously evoked in 2004 but now framed differently, in order to request the Court to
decline to give an advisory opinion.
The first emphasizes absolute respect for the principle of State consent to the Court’s
jurisdiction, which would be flouted if the Court were to respond favourably to the General
Assembly’s request. The second “reason” consists in recalling that “the advisory opinion procedure
is ill-equipped for the determination of complex and disputed issues of fact that is required in the
present case” (p. 5, para. 3.1).
Moreover, for the sake of completeness, Algeria considers it worth noting that other arguments
have been put forward to support the position that the Court should decline to give an advisory
opinion. The Court addressed them in paragraphs 43 to 65 of its [2004] Advisory Opinion. Leaving
aside those already presented by Israel, there are two others that Algeria will discuss, as they could
be invoked again in the current proceedings.
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The first, in chronological order, relates to the obstacles that an advisory opinion of the Court
could place in the way of a political settlement. The second emphasizes that an opinion would lack
any useful purpose. More specifically, as the Court states in paragraph 59, “the argument continues,
the General Assembly would not need an opinion of the Court, because it has . . . already determined
the legal consequences by demanding that Israel stop and reverse its construction, and further,
because the General Assembly has never made it clear how it intended to use the opinion”.
II.2.2 The Court’s rejection of Israel’s arguments
For the purpose of reviewing the positions taken by the Court, Algeria will recall the Court’s
view of its discretionary power in advisory proceedings. In its penultimate advisory opinion, dated
1 February 2012 (Judgment No. 2867 of the Administrative Tribunal of the International Labour
Organization upon a Complaint Filed against the International Fund for Agricultural Development),
the Court very clearly and helpfully clarified this power in the following terms: “Article 65 of the
Statute of the Court makes it clear that it has a discretion whether to reply to a request for an advisory
opinion . . . That discretion exists for good reasons. In exercising that discretion, the Court has to
have regard to its character, both as a principal organ of the United Nations and as a judicial body”.
With this in mind, Algeria will begin by addressing the analyses presented by the Court in its
Advisory Opinion of 9 July 2004 as they relate to the three above-mentioned objections of Israel in
the proceedings relating to the construction of the wall and to the Chagos Archipelago, given the
possibility that these objections may be raised in relation to the most recent General Assembly
request.
In that Opinion, the Court rejected Israel’s fallacious reasoning and spurious arguments in full.
It proceeded with its usual rigour, of course, setting out the methodological precautions it had taken,
in particular “the duty to satisfy itself, each time it is seised of a request for an opinion, as to the
propriety of the exercise of its judicial function”, by ensuring that there are no “compelling reasons”
that could impede the exercise of its advisory jurisdiction. Having articulated this precaution and
fulfilled its pedagogical duty, the Court nonetheless methodically rejected all the legal quibbles that
had been raised.
Algeria will examine the objections of Israel in chronological order, since although the
objections raised in the context of the Chagos Archipelago proceedings were not substantially
different from those expressed in 2004, they may provide an indication of Israel’s latest arguments
in this regard.
The objection relating to the judicial function of the Court and the limits of its advisory
function was the subject of paragraphs 43 et seq. [of the 2004 Advisory Opinion]. The Court
discussed this argument, noting the contention that the presence “of specific aspects of the General
Assembly’s request . . . would render the exercise of the Court’s jurisdiction improper and
inconsistent with the Court’s judicial function”. The Court responded that, “as the ‘principal judicial
organ’ of the United Nations . . . , the Court should in principle not decline to give an advisory
opinion”, and even added that it “has never, in the exercise of this discretionary power, declined to
respond to a request for an advisory opinion” (p. 156, para. 44).
With regard to the second objection, regarding the fact that the request concerned a contentious
matter between two parties, the Court “acknowledge[d] that Israel and Palestine have expressed
radically divergent views on the legal consequences of Israel’s construction of the wall”. It also
recalled that “[d]ifferences of views . . . on legal issues have existed in practically every advisory
proceeding” (p. 158, para. 48). The Court further noted that the General Assembly’s request
“can[not] be regarded as only a bilateral matter between Israel and Palestine” but must be considered
to be “of concern to the United Nations”.
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Thirdly, in paragraphs 56 to 58 of its Opinion, the Court rejected the argument concerning the
lack of facts and evidence. In paragraph 56, it considered that “the question whether the evidence
available to it is sufficient to give an advisory opinion must be decided in each particular instance”.
In paragraph 57, it stated that, “[i]n the present instance, the Court has at its disposal the report of the
Secretary-General, as well as a voluminous dossier submitted by him to the Court, . . . [which]
includes several reports based on onsite visits”.
As regards the two objections to the effect that a favourable response would impede a political
solution and an advisory opinion would lack any useful purpose, they are dealt with by the Court in
paragraphs 51 to 54 and 59 to 62, respectively.
Referring to several advisory proceedings, the Court noted that the idea that an advisory
opinion could impede a political solution had already been suggested on numerous occasions.
The Court considered first of all that “[i]t is not clear . . . what influence the Court’s opinion
might have on those negotiations” and that it “cannot regard this factor as a compelling reason to
decline to exercise its jurisdiction”.
Regarding the lack of useful purpose of an advisory opinion, the Court considered in
paragraph 60, in a dictum of particular importance with regard to the current request, that “advisory
opinions have the purpose of furnishing to the requesting organs the elements of law necessary for
them in their action”. It supports this reasoning by reference to a large body of jurisprudence.
This jurisprudence identifies the different objects that requests for opinions may have. A
request may be intended “to guide the United Nations”, it may be “put forward by a United Nations
organ with reference to its own decisions and [may] see[k] legal advice from the Court on the
consequences and implications of these decisions”, or it may “furnish the General Assembly with
[relevant] elements of a legal character” (pp. 162-163, para. 60).
Algeria fully endorses the reasoning and conclusions of the Court, particularly as regards the
parallel that can be drawn between the arguments made in 2004 and those that might be put forward
in the present proceedings. In any event, it would not change in the slightest the analyses provided
by the Court in 2004 if, by chance, the same or similar arguments were to be adduced in order to
request the Court to decline to render an advisory opinion.
Algeria concludes from all the arguments in this second part of its written statement that the
Court must dismiss any objections that might be raised to contest the request of the United Nations
General Assembly.
The Court, for its part, must also draw the necessary conclusions from the fact that, in
customary fashion, Israel, a Member of the United Nations, has systematically rejected the decisions
and resolutions of the General Assembly and the Security Council, and has denounced the reports of
mandate holders and human rights treaty bodies, as well as the Court’s own Advisory Opinion of
9 July 2004, having asserted that the ICJ lacks jurisdiction to deal with “politically contentious
issues” without “the consent of all sides”, and that, consequently, Israel would continue building the
wall5.
Israel’s failure to respect the resolutions and decisions of the United Nations thus illustrates
its contempt for international law and the principle of “good faith”.
5 Israeli Ministry of Foreign Affairs, [“Saving Lives: Israel's anti-terrorist fence — Answers to Questions
(January 2004)”], www.gov.il/en/Departments/General/saving-lives-israel-s-anti-terrorist-fence-answers-to-questionsjan-
2004.
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In this regard, the opinion of Judge Lauterpacht in the case concerning Voting Procedure on
Questions relating to Reports and Petitions concerning the Territory of South West Africa6 is of
relevance to the present case, particularly as regards respect for the decisions of the United Nations:
“Whatever may be the content of the recommendation . . . it is nevertheless a legal act . . . of the
United Nations which Members of the United Nations are under a duty to treat with a degree of
[appropriate] respect . . . [T]here is a legal obligation to act in good faith in accordance with the
principles of the Charter”7.
“Thus . . . [a] State which consistently sets itself above the solemnly and
repeatedly expressed judgment of the Organisation, in particular in proportion as that
judgment approximates to unanimity, may find that it has overstepped the imperceptible
line between impropriety and illegality, between discretion and arbitrariness, between
the exercise of the legal right to disregard the recommendation and the abuse of that
right, and that it has exposed itself to consequences legitimately following”8.
In the discussion that follows, Algeria will show that Israel has repeatedly contravened the
decisions and resolutions of the United Nations and its organs and disregarded the obligations arising
therefrom, day after day committing flagrant and continuing violations of the rights of the Palestinian
people, from the date of General Assembly resolution 194 (1947)9 to this day.
III. VIOLATIONS OF THE RIGHT OF THE PALESTINIAN PEOPLE TO SELF-DETERMINATION,
A PEREMPTORY NORM UNDER INTERNATIONAL LAW
III.1 General observations
Algeria has a number of observations that it would like to make.
It notes first of all that Part II (A) of the “material relating to the Request by the General
Assembly for an Advisory Opinion of the Court” of 31 May 2023 includes a chapter entitled “Right
to self-determination”. This very valuable document contains a compilation of two types of texts.
The first comprises all the General Assembly resolutions relating to the right of peoples to
self-determination adopted between 30 November 1970 and 16 December 2021. The second
comprises the resolutions adopted by the General Assembly since 1995 under the title “The right of
the Palestinian people to self-determination”. The first of these, resolution 49/149, is dated
7 February 1995, and the last, resolution 77/208, was adopted on 28 December 2022.
The General Assembly’s request for an advisory opinion attaches great importance to the
Palestinian people’s right to self-determination, as it is the first legal element to which the General
Assembly refers.
Algeria would moreover note that there are several references to this right in the preamble to
resolution 77/247. More than ever before, the right to self-determination is the cornerstone of both
general and special international law. But that was already the case when the General Assembly
formulated its request for an advisory opinion in the early 2000s.
6 Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa,
Advisory Opinion, I.C.J. Reports 1955.
7 Ibid., separate opinion of Judge Lauterpacht, p. 120.
8 Ibid.
9 United Nations General Assembly resolution 194 (III). Palestine  Progress Report of the United Nations
Mediator, 11 Dec. 1948, A/RES/194.
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In fact, it was central to the General Assembly’s request of December 2003 and to the content
of the Advisory Opinion of 9 July 2004. In that Opinion, the whole of paragraph 88 is devoted to the
principle of self-determination of peoples. The Court began by recalling that this principle has been
enshrined in the United Nations Charter and reaffirmed by the General Assembly in
resolution 2625 (XXV), in terms quoted by the Court in the paragraph in question.
That resolution states that “[e]very State has the duty to refrain from any forcible action which
deprives peoples referred to [in that resolution] . . . of their right to self-determination”. The Court
then mentions the embodiment of this right in the two 1966 Covenants, on civil and political rights
and on economic, social and cultural rights, respectively. As noted by the Court, common Article 1
of the Covenants “reaffirms the right of all peoples to self-determination, and lays upon the States
parties the obligation to promote the realization of that right and to respect it, in conformity with the
provisions of the United Nations Charter”. The Court subsequently refers to a number of advisory
opinions.
Given the tremendous importance and “intransgressible” nature of this cardinal principle,
Algeria, while endorsing the Court’s analysis, considers it necessary to elaborate on this principle,
namely by recalling its sources in basic treaties (III.2), resolutions (III.3), jurisprudence (III.4) and,
lastly, the work of the International Law Commission (ILC) (III.5).
III.2 Basic treaty sources
Although citing these treaty sources may appear somewhat puzzling in light of the clearly
peremptory nature of the right to self-determination, Algeria considers it necessary to do so briefly,
focusing on the essentials.
First, Algeria would recall that, as far back as 1945, the United Nations Charter enshrined the
principle of self-determination of peoples, notably by aiming, as provided in Article 1, paragraph 2,
to “develop friendly relations among nations based on respect for the principle of equal rights and
self-determination of peoples”.
Secondly, the Covenant on Civil and Political Rights and the Covenant on Economic, Social
and Cultural Rights both proclaim that “[a]ll peoples have the right of self-determination. By virtue
of that right they freely determine their political status and freely pursue their economic, social
and cultural development.”
In reference to this provision, the Human Rights Committee, in its General Comment No. 12,
noted that the right in question “is of particular importance because its realization is an essential
condition for the . . . guarantee and observance of . . . human rights”. It added that States set forth
this right in “a provision of positive law . . . placed . . . as article 1 apart from and before all of the
other rights in the two Covenants” and further characterized it as an “inalienable right”.
III.3 Resolution-based sources
As previously indicated, Algeria will confine itself to the main resolutions that have a high
normative value, reflecting the legal significance of the right to self-determination. These include, in
chronological order, resolutions 1514, 2131, 2625 and 3314.
Resolution 1514 of 1960 consists of the Declaration on the granting of independence to
colonial countries and peoples. It sets forth an absolute right which has been relied upon by the Court
to establish its erga omnes nature.
The 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States
and the Protection of Their Independence and Sovereignty provides that “[a]ll States shall respect
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the right of self-determination and independence of peoples and nations”, adding that this right is “to
be freely exercised without any foreign pressure, and with absolute respect for human rights and
fundamental freedoms”.
The 1970 Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations makes several
references to the right of self-determination in its preamble and operative paragraphs.
Lastly, resolution 3314, on the definition of aggression, notably states in Article 7 that the
rules it contains cannot “in any way prejudice the right to self-determination”.
With regard to the Security Council, and again focusing on the essentials, Algeria would first
note that the fifth preambular paragraph of the General Assembly’s [current] request recalls “the
relevant resolutions of the Security Council, and stress[es] the need for their implementation”. They
are expressly cited in the 34th paragraph of the preamble and in paragraphs 6 and 10 of the operative
part [of resolution 77/247].
More specifically, but for illustrative purposes only, Algeria would recall some recently issued
resolutions of the General Assembly, as mentioned earlier in this written statement.
Resolution 77/208 of 15 December 2022, on “[t]he right of the Palestinian people to selfdetermination”,
“[r]eaffirms the right of the Palestinian people to self-determination, including the
right to their independent State of Palestine”. Its preamble recalled resolution 76/150 of 16 December
2021.
It also recalled resolution 67/19 of 29 November 2012, whose ninth preambular paragraph
refers to “the inalienable rights of the Palestinian people, primarily the right to self-determination”.
To reinforce this normative framework, it should be noted that Article 20, paragraph 1, of the
African Charter on Human and Peoples’ Rights provides that “[a]ll peoples shall have [the] right to
existence” and that they “shall have the unquestionable and inalienable right to self-determination”.
III.4 Sources in the jurisprudence of the International Court of Justice
In addition to the international conventions referred to above, it is important to note that the
importance of the principle of self-determination is continuously reiterated whenever the opportunity
arises. The International Court of Justice, for example, had new occasions to address the importance
of this principle in two of its advisory opinions rendered at the request of the General Assembly, in
2010 and 2019.
The first was the Advisory Opinion of 22 July 2010 on the Accordance with International Law
of the Unilateral Declaration of Independence in Respect of Kosovo. The second was the Advisory
Opinion of 25 February 2019 on the Legal Consequences of the Separation of the Chagos
Archipelago from Mauritius in 1965.
It should be noted that, in the Advisory Opinion on Kosovo, the Court stated that “[d]uring the
second half of the twentieth century, the international law of self-determination developed in such a
way as to create a right to independence for the peoples of non-self-governing territories and peoples
subject to alien subjugation, domination and exploitation” (I.C.J. Reports 2010, p. 436, para. 79).
In the 2019 Advisory Opinion on the Chagos Archipelago, the Court gave renewed impetus to
the right to self-determination by stating with some emphasis, in paragraph 144, that it is “conscious
that the right to self-determination, as a fundamental human right, has a broad scope of application”,
while adding that “it will confine itself, in this Advisory Opinion, to analysing the right to
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self-determination in the context of decolonization”, and reiterating the relevance of the founding
texts in that regard.
Accordingly, the Court first recalled, in paragraph 146, that “respect for the principle of equal
rights and self-determination of peoples is one of the purposes of the United Nations”. Most
importantly, in paragraph 150, it characterized resolution 1514 (XV) for the first time as a “defining
moment”.
Previously, in its Advisory Opinion of 21 June 1971 (Legal Consequences for States of the
Continued Presence of South Africa in Namibia, I.C.J. Reports 1971, p. 31, para. 52), the Court had
considered that declaration to be an “important stage” in the development of the right to
self-determination. In its Opinion on the Chagos Archipelago, it added that
“resolution 1514 (XV) . . . has a declaratory character with regard to the right to self-determination
as a customary norm”. It further observed that “[t]he wording used in resolution 1514 (XV) has a
normative character” (para. 153). Further impetus can be found in the work of the ILC.
III.5 Sources in the work of the International Law Commission
Without seeking to be exhaustive, there are two major milestones that attest to the accelerated
development of the right to self-determination as a peremptory norm of general international law in
the work of the ILC.
III.5.1 The Draft Articles on Responsibility of States for Internationally Wrongful Acts
Algeria would draw attention to the importance of Part Two, Chapter III, of these Draft
Articles, which deals with “serious breaches of obligations under peremptory norms of . . .
international law”, norms which include the right of peoples to decide their own destiny and thus
their right to self-determination. Algeria will return to this point in Part VII.1.1.2 and Part VII.1.2 of
its statement, below.
III.5.2 The work on “peremptory norms of general international law (jus cogens)”
The right to self-determination is included in the list of norms identified by the ILC as jus
cogens. During the Sixth Committee discussions in 2018, one State, and only one, Israel, considered
the inclusion of self-determination in the list of peremptory norms of international law to be
“questionable” (A/C.6/73/SR.27).
The Special Rapporteur on the topic of jus cogens norms, in a very rigorous analysis, justified
this inclusion on the basis of existing practice. To support his assessment, he referred in particular to
the international jurisprudence on this subject. Algeria addressed this matter earlier, in its review of
the relevant international jurisprudence. It returns to it now in relation to the analysis provided by
the ILC Special Rapporteur, who highlighted the link that exists between the concepts of jus cogens
and erga omnes, rightly considering that the latter derives from the former.
The Special Rapporteur relied in particular on the Court’s 1995 Judgment in the East Timor
case and on the advisory opinions most closely related to the current proceedings, namely those
concerning Namibia (1971), Western Sahara (1975) and the Wall (2004). To support his arguments,
he also referred to General Assembly resolutions 1514, 2131, 2625 and 3314. The latter, for example,
states that nothing in the definition provided could “in any way prejudice the right to
self-determination”. The Special Rapporteur further referred to certain resolutions specifically
concerning the Occupied Palestinian Territory.
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IV. VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW
Algeria will endeavour to demonstrate below that the policies and practices of Israel in the
occupied Palestinian territories, including East Jerusalem, that were aimed at maintaining these
territories under prolonged occupation are in violation of international humanitarian law.
In this part of its written statement, Algeria will begin by defining the international legal status
of the Palestinian territories occupied by Israel (IV.1), putting the special status of East Jerusalem,
the West Bank and the Gaza Strip into perspective, before demonstrating that the continuation of this
occupation is illegal under international humanitarian law (IV.2) and discussing Israel’s obligation
to comply with the applicable rules in the occupied Palestinian territories (IV.3).
IV.1 The international legal status of the Palestinian territories under Israeli occupation:
characterization of the situation of occupation of the West Bank
and East Jerusalem under international law
During the war of aggression that lasted from December 1947 to January 1949, Israeli forces
occupied the western part of Jerusalem, in violation of resolution 181. The Armistice Agreement of
3 April 1949 led to the de facto division of the city into two parts, East Jerusalem and West Jerusalem;
meanwhile, the United Nations continued to advocate for the city to be given a special status.
On 9 December 1949, the General Assembly adopted resolution 303 (IV), entitled “Palestine:
question of an international regime for the Jerusalem area and the protection of the Holy Places”, in
which it restated “its intention that Jerusalem should be placed under a permanent international
regime, which should envisage appropriate guarantees for the protection of the Holy Places, both
within and outside Jerusalem, and to confirm specifically the following provisions of General
Assembly resolution 181 (II): [that] the City of Jerusalem shall be established as a corpus separatum
under a special international regime and shall be administered by the United Nations”.
Following the 1967 armed conflict  during which the Israeli armed forces occupied all the
territories that had constituted Palestine under the British Mandate, including those known as the
West Bank and the Gaza Strip, which represented roughly half the territory attributed to the Arab
State under the Plan of Partition included in General Assembly resolution 181 (II) of 1947  the
Security Council, on 22 November 1967, unanimously adopted resolution 242 (1967), which
emphasized the inadmissibility of the acquisition of territory by war and called for the “withdrawal
of Israel armed forces from territories occupied in the recent conflict” and the “termination of all
claims or states of belligerency”.
From 1967 onwards, Israel took a number of measures in these territories which were aimed
at altering the status of Jerusalem. The Security Council, after reaffirming on several occasions that
the “principle of acquisition of territory by military conquest is inadmissible”, condemned these
measures and confirmed in resolution 298 (1971) of 25 September 1971, in the clearest possible
terms, that:
“[A]ll legislative and administrative actions taken by Israel to change the status
of the City of Jerusalem, including expropriation of land and properties, transfer of
populations and legislation aimed at the incorporation of the occupied section, are
totally invalid and cannot change that status”.
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Resolutions adopted by the Security Council since 196710 have established the unlawfulness
of the Israeli occupation resulting from the Six Day War11 and the illegality of the Israeli measures
aimed at altering the status of Jerusalem12. Consequently, the current status of Israel with regard to
these territories is nothing other than that of an occupier.
However, under international law, an occupying Power does not have sovereignty over the
territory it occupies. It exercises its authority over that territory only temporarily13. The applicable
criterion is that of effective control of the territory14. It is immaterial whether its day-to-day
administration is exercised by local authorities. A territory that has been occupied continues to be so
until either a definitive withdrawal takes place, or a final and acceptable settlement is reached. Yet
neither of these has occurred in the present case.
In its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, the Court previously suggested that the separation barrier and its
associated régime “create a ‘fait accompli’ on the ground that could well become permanent, in which
case . . . it would be tantamount to de facto annexation”15.
Twenty years later, the Court has every reason to believe that not only the situation created by
the barrier, but also the control exercised by Israel, have become tantamount to de facto annexation,
at least in the entire part of the Palestinian territory that is under direct Israeli territorial administration
(Area C16 under the Oslo Accords).
At its fifth emergency special session, the General Assembly adopted resolution 2253 (ES-V),
entitled “Measures taken by Israel to change the status of the City of Jerusalem”, in which it stated
that it was “deeply concerned at the situation prevailing in Jerusalem as a result of the measures taken
by Israel to change the status of the City”, it considered that these measures were “invalid” and it
called upon “Israel to rescind all measures already taken and to desist forthwith from taking any
action which would alter the status of Jerusalem”.
Following the adoption by Israel, on 30 July 1980, of the basic law making Jerusalem, “whole
and united”, its capital, the Security Council, in its resolution 478 (1980) of 20 August 1980,
“[d]ecide[d] not to recognize the ‘basic law’ and such other actions by Israel that, as a result of this
law, seek to alter the character and status of Jerusalem”17. In the same vein, the Security Council
affirmed that the enactment of this law constituted a violation of international law and that “all
legislative and administrative measures and actions taken by Israel, the occupying Power, which have
altered or purport to alter the character and status of the Holy City of Jerusalem . . . are null and void”. It
moreover “call[ed] upon [a]ll Member States to accept this decision”18.
10 Security Council resolution 242 (1967), UN doc. S/RES/242 (22 Nov. 1967), para. 1.
11 Security Council resolution 476 (1980), UN doc. S/RES/476 (30 June 1980), paras. 3 and 4; resolution 478
(1980) (No. 7), paras. 2, 3 and 5.
12 Security Council resolution 2334 (2016), UN doc. S/RES/2334 (23 Dec. 2016), preamble.
13 See, in particular, Arts. 4 and 47 of the Fourth Geneva Convention.
14 Art. 42 of the Hague Regulations of 1907.
15 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 184, para. 121.
16 Area C is an administrative division of the West Bank, entirely under Israeli occupation. It was defined by the
Oslo II Accord of 1995. Area C is under the administration of the Israeli district of Judea and Samaria, while the Palestinian
population is directly administered by the Coordinator of Government Activities in the Territories.
17 Security Council resolution 478 (1980), 20 Aug. 1980.
18 Ibid., para. 5 (a).
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The illegal occupation of East Jerusalem by Israel, endorsed in its domestic legislation in 1980,
has repeatedly been condemned by the international community in a series of Security Council
resolutions.
In resolution 2334 (2016), the Security Council again condemned the measures aimed at
altering the status of the “Palestinian territory occupied since 1967, including East Jerusalem”19,
“underline[d] that it w[ould] not recognize any changes to the 4 June 1967 lines, including with
regard to Jerusalem, other than those agreed by the parties through negotiations”20, and “call[ed]
upon all States . . . to distinguish, in their relevant dealings, between the territory of the State of Israel
and the territories occupied since 1967”21.
The international community has similarly condemned any unilateral acts recognizing an
alteration of the status of Jerusalem, through General Assembly resolution ES-10/1922, entitled
“Status of Jerusalem”23, which:
“1. Affirms that any decisions and actions which purport to have altered the
character, status or demographic composition of the Holy City of Jerusalem have no
legal effect, are null and void and must be rescinded in compliance with relevant
resolutions of the Security Council, and in this regard calls upon all States to refrain
from the establishment of diplomatic missions in the Holy City of Jerusalem, pursuant
to Council resolution 478 (1980);
2. Demands that all States comply with Security Council resolutions regarding
the Holy City of Jerusalem, and not recognize any actions or measures contrary to those
resolutions”.
This resolution is in keeping with the implementation of international norms, with a view to
ensuring compliance with international law, and confirms the collective non-recognition and
unlawful nature of these measures. The preamble to resolution ES-10/19 states that “Jerusalem is a
final status issue to be resolved through negotiations in line with relevant United Nations
resolutions”.
Israel’s de jure annexation of East Jerusalem and certain parts of the West Bank in 1967 (by a
Cabinet decision) and in 1980 (by a Knesset vote) constitutes ipso facto a violation of the principle
of non-annexation, as reflected in the relevant law of occupation.
Shortly after the Knesset vote, the United Nations Security Council, in August 1980,
condemned Israel “in the strongest terms”, affirming that Israel’s actions were contrary to
international law and that its occupation of Jerusalem was “null and void” and “must be rescinded
forthwith”.
Israel, as the occupying Power, is continuing to fail to comply with its international obligations
and with all the United Nations resolutions on the occupation of Jerusalem.
In this respect, the Israeli Prime Minister, confirming his intention not to renounce his policy
of occupation, has stated that Israel intended to keep the whole of Jerusalem permanently.
19 Ibid., fourth preambular paragraph.
20 Ibid., para. 3.
21 Security Council resolution 478 (1980) (No. 7), para. 5.
22 General Assembly resolution ES-10/19, Status of Jerusalem, 21 Dec. 2017, A/RES/ES-10/19.
23 Vote: 129 votes in favour, 9 against, 35 abstentions.
- 20 -
As indicated in the report of the Director of the Field Operations and Technical Cooperation
Division of the Office of the High Commissioner for Human Rights, the number of Israeli settlers in
the occupied West Bank, including East Jerusalem, increased from 520,00024 to more than 700,00025
between 2012 and 2022. In 2022, there were more than 280 settlements and outposts in Palestinian
territories and 138 settlements were officially recognized by the occupation authorities.
The creation and expansion of settlements in the Occupied Palestinian Territory is tantamount
to Israel transferring its own population into the territory it occupies, which may constitute a war
crime within the meaning of Article 8, paragraph 2 (b) (viii), of the 1988 Rome Statute of the
International Criminal Court (ICC).
In this regard, both the General Assembly and the Security Council have declared on numerous
occasions that any action or decision aimed at altering the character, status or demographic
composition of the Holy City of Jerusalem has no legal effect and is null and void under international
law. Any unilateral act relating to the status of Jerusalem is thus unlawful, given that it is contrary to
the resolutions of the Security Council and to general international law. Moreover, as recalled by
Judge Koroma in his separate opinion on the construction of the wall, it is “[e]qually important . . .
that the international community as a whole bears an obligation towards the Palestinian people . . .
not to recognize any unilateral change in the status of the territory”26.
Beyond Jerusalem, Israel is actively endeavouring to achieve the de facto annexation of certain
parts of the West Bank by means of its increasingly numerous settlements, as noted by the ICJ in its
Advisory Opinion on the construction of the wall27.
The preamble to resolution ES-10/19 moreover reaffirms that the acquisition of territory by
force is inadmissible and contrary to the rules of general international law, which give rise to an
obligation of non-recognition28 and entail “the illegality of territorial acquisition resulting from the
threat or use of force”29.
In this connection, since resolution 242 of the United Nations Security Council30, the principle
of “the inadmissibility of the acquisition of territory by war” or by force has been recognized by the
Security Council on several occasions.
The United Nations General Assembly unanimously affirmed this principle in the
“Declaration on Principles of International Law concerning Friendly Relations and Cooperation
among States”31, adopted in 1970. And in its 2004 Advisory Opinion on the construction of the wall,
the ICJ held, in paragraph 87, that “the illegality of territorial acquisition resulting from the threat or
use of force” has acquired the status of customary international law.
24 See peacenow.org.il/en/settlements-watch/settlements-data/population (465,000 settlers in the West Bank) and
peacenow.org.il/en/settlements-watch/settlements-data/jerusalem (229,377 in East Jerusalem).
25 Ibid.
26 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), separate opinion of Judge Koroma, p. 205, para. 7.
27 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 184, para. 121.
28 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts and commentaries thereto,
UN doc. A/56/10, pp. 115-116 (commentary to Art. 41, para. 2).
29 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 171, para. 87.
30 Security Council resolution 242, 22 Nov. 1967.
31 legal.un.org/avl/pdf/ha/dpilfrcscun/dpilfrcscun_ph_e.pdf.
- 21 -
In light of the foregoing in particular, Algeria would recall that the most serious violation
committed by Israel is undoubtedly its constant striving to prevent the establishment of a Palestinian
State, as it was provided for in General Assembly resolution 181 (1947)32.
Another violation of the rights of the Palestinian people concerns the encroachment on the
boundaries described in General Assembly resolution 181 of 1948 and, since 1967, the occupation
of the West Bank, including East Jerusalem, and the Gaza Strip, which accounted for roughly half of
the territory allocated to the Arab State under the Plan of Partition in General Assembly
resolution 181 (II) of 1947.
The Security Council, the General Assembly and the Human Rights Council have consistently
reaffirmed the inadmissibility of the acquisition of territory by force33 and the overriding necessity
of the withdrawal of Israel’s armed forces from the occupied territories34, censuring in the strongest
terms all the measures that have been taken by Israel in violation of international law.
IV.2 The illegality of Israel’s prolonged occupation of the
occupied Palestinian territories
Algeria would recall that the question in paragraph 18 (a) of resolution 77/247 of
30 December 2022 refers to violations of the very principles of the law of occupation, such as
prolonged occupation, as well as to violations of certain express provisions of that law, such as
settlement and discriminatory practices, which, in some circumstances, undermine those same
principles. The ICJ has thus been seised of the question of the legality of Israel’s “prolonged
occupation” of Palestinian territory.
Israel has occupied Palestinian territory for 56 years. Fifty-six long years replete with
continued, gross violations of the rights of the Palestinian people. This duration has caused the
occupation to be characterized as “prolonged” and has also rendered the occupation itself illegal.
Under the legal frameworks specifically governing situations of occupation  international
humanitarian law and the law on the use of force  an occupation must be temporary.
It is primarily in the light of these facts that Algeria will set out its own views on the illegality
of the prolonged occupation of Palestinian territories under the relevant law in this area.
In international law, the legality of an occupation is determined by reference to a particular set
of principles, namely that the occupying Power must have neither sovereignty over nor title to the
occupied territory; that the occupying Power is obliged to manage public order and civilian life in
the territory concerned and must do so for the benefit of the occupied population, with due regard to
the latter’s right to self-determination; and that the occupation must be temporary.
Thus, an occupying Power may under no circumstances acquire the right to conquer, annex or
obtain sovereign title to any part of the territory it occupies (“belligerent occupation does not yield
so much as an atom of sovereignty in the authority of the occupant”35). This is one of the most
well-established principles of modern international law, enjoying universal recognition.
32 General Assembly, Resolution adopted on the report of the Ad Hoc Committee on the Palestinian Question,
resolution 181 (II). Future government of Palestine, 29 Nov. 1947.
33 See Security Council resolutions 242 (1967), 252 (1968), 267 (1969), 298 (1971), 476 (1980), 478 (1980) and
2334 (2016), and General Assembly resolutions 2628 (XXV), 2799 (XXVI) and 2949 (XXVII).
34 See Security Council resolutions 242 (1967) and 476 (1980), and General Assembly resolutions 2628 (XXV),
37/86 and 41/162.
35 A. Gross, The Writing on the Wall: Rethinking the International Law of Occupation, Cambridge, Cambridge
University Press, 2017, p. 8.
- 22 -
According to the rules and principles of international humanitarian law, wartime occupation
is a temporary situation which deprives the occupied Power of neither its statehood nor its
sovereignty. Occupation as a result of war cannot imply any right whatsoever to dispose of territory36.
Under international humanitarian law, belligerent occupation is supposed to be temporary;
however, this legal régime does not fix an end-date for the occupation, but rather seeks to impose
restrictions on the occupying Power’s use of the occupied territory and to protect the civilian
population.
International law and practice do not clearly define the point in time when a situation of
belligerent occupation becomes illegal. However, there is an essential principle according to which
the occupying Power cannot implement measures  de jure or de facto  that make the occupation
permanent. In the Namibia case, the origins of which were admittedly different from those of the
situation in the Occupied Palestinian Territory, the ICJ found in its Advisory Opinion that the
continued presence of South Africa in Namibia was illegal. Moreover, it found that South Africa
“incur[red] international responsibilities arising from a continuing violation of an international
obligation” because it occupied the territory of Namibia “without title”37.
Algeria would recall that, in a 2017 report, former Special Rapporteur Michael Lynk described
the prolongation of Israel’s occupation of Palestinian territories as a “red line” which, once crossed,
makes the occupation illegal. In his view, by perpetuating the occupation and implementing changes
in the occupied territory, including the establishment of settlements, the expropriation of land and
the exploitation of natural resources, as well as the purported de jure annexation of East Jerusalem,
Israel has crossed that line: “Israel’s role as occupier in the Palestinian Territory  the West Bank,
including East Jerusalem, and Gaza  has crossed a red line into illegality”38.
Furthermore, in its September 2022 report, the Independent International Commission of
Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, reached the same
conclusions39:
“The Commission finds that there are reasonable grounds to conclude that the
Israeli occupation of Palestinian territory is now unlawful under international law owing
to its permanence and to actions undertaken by Israel to annex parts of the land de facto
and de jure. Actions by Israel that are intended to create irreversible facts on the ground
and expand its control over territory are reflections as well as drivers of its permanent
occupation.”
The Independent International Commission based its finding on: (i) the legal measures by
which Israel has purportedly formally annexed East Jerusalem40; (ii) the establishment of settlements
and outposts in the West Bank, and the attendant exploitation of natural resources, the building of
settler-only roads and infrastructures, demographic engineering measures, and the extraterritorial
36 See International Committee of the Red Cross (ICRC), Commentary of 1958 to Art. 47 of Geneva
Convention (IV) relative to the Protection of Civilian Persons in Time of War, available at ihl-databases.icrc.org/en/ihltreaties/
gciv-1949/article-47/commentary/1958?activeTab=1949GCs-APs-and-commentaries.
37 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 51-52, paras. 108,
109, 111; p. 53, para. 115; pp. 54-56, paras. 117-127, and p. 58, para. 133.
38 www.ohchr.org/en/press-releases/2017/10/israel-must-face-new-international-legal-push-end-illegaloccupation.
39 Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, 14 Sept. 2022 (issued 20 Oct. 2022), pp. 24-28, paras. 75-76.
40 Ibid., paras. 14-16.
- 23 -
application of Israeli domestic law to settlements and settlers41; and (iii) the unequivocal statements
by Israeli officials of the intent to appropriate permanently portions of the West Bank42.
Occupation is by definition a temporary and exceptional situation in which the occupying
Power assumes the role of de facto administrator of the territory until conditions allow for the
territory to be returned to the sovereign. This is what distinguishes occupation from annexation. In
other words, the territory must be returned to the sovereign Power  the people of the territory 
within a reasonable period, in order to ensure respect for the people’s right to self-determination “as
soon as possible”43.
As pointed out by Special Rapporteur Michael Lynk, Israel’s occupation of Palestinian
territories is “without precedent or parallel in today’s world . . . Modern occupations that have
broadly adhered to the strict principles concerning temporariness, non-annexation, trusteeship and
good faith have not exceeded 10 years.”
The provisions of the law of occupation are clear: the occupying Power cannot treat the
territory as its own, nor can it claim sovereignty over it. “Yet this has been Israel’s pattern of
governing the occupied Palestinian territory for most of its 50 years of rule”44.
Israeli governments since 1967 have pursued the continuous growth of the settlements, and
the scale of the financial, military and political resources committed to this enterprise belies any
intention to make the occupation temporary. The ICJ anticipated this situation in its 2004 Advisory
Opinion, in which it stated that “the wall and its associated régime create a ‘fait accompli’ on the
ground that could well become permanent, in which case . . . it would be tantamount to de facto
annexation”. This is now a reality45.
In view of the foregoing, Algeria has come to the conclusion that Israel considers the
occupation to be permanent, while at the same time justifying its actions on the basis of the situation
being temporary, which is merely a fiction. Moreover, as Professor Gershon Shafir46 has noted,
“temporariness remains an Israeli subterfuge for creating permanent facts on the ground”, with Israel
able to employ a seemingly indeterminate nature of the occupation’s end-point to create a “permanent
temporariness” that intentionally forestalls any meaningful exercise of self-determination by the
Palestinians.
And as Special Rapporteur Michael Lynk noted in presenting his October 2017 report: “The
international community has recoiled from answering Israel’s splintering of the Palestinian territory
and disfiguring of the laws of occupation with the robust tools that international law and diplomacy
provide. International law, along with the peoples of Palestine and Israel, have all suffered in the
process”47.
41 Ibid., paras. 24-47.
42 Ibid., paras. 48-53.
43 Security Council resolution 1483 (2003), 22 May 2003, S/RES/1483 (2003), preambular para. 5, and para. 4.
44 www.ohchr.org/en/press-releases/2017/10/israel-must-face-new-international-legal-push-end-illegaloccupation.
45 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 184, para. 121.
46 G. Shafir, A Half Century of Occupation, University of California Press, 2017, pp. 155 and 161.
47 www.ohchr.org/en/press-releases/2017/10/israel-must-face-new-international-legal-push-end-illegaloccupation.
- 24 -
Arguments in support of this view regarding the permanence of Israel’s occupation of
Palestinian territories are certainly provided to the Court by the policy approaches48 of the Israeli
Government and the statements made by its members, in particular the announcements that the
Jewish people have an exclusive and indisputable right to the whole of Eretz Israel (Palestine and the
Golan Heights), that “the Jewish people have an exclusive and inalienable right to all parts of the
Land of Israel”49, including the Syrian Golan and Judea and Samaria, and that the Government
intends to promote and develop settlements in the West Bank.
Violation of the principle of temporariness renders an occupation illegal under international
humanitarian law and jus ad bellum. In light of the foregoing, the law of international responsibility
imposes an obligation on Israel to put an end to its illegal actions and withdraw its military and
civilian presence from the occupied territory50.
IV.3 Israel’s obligation to respect the applicable rules
in the occupied territories
IV.3.1 The applicability of international humanitarian law
The General Assembly’s question relating to an examination of the “law” and the
consequences arising from the Israeli occupation in the light of international humanitarian law,
international human rights law and the relevant resolutions of the General Assembly, the Security
Council and the Human Rights Council does not limit but suggests the scope of the relevant law in
this case.
The definition of occupation in international humanitarian law is largely based on elements of
fact. According to the definition provided by Article 42 of the Hague Regulations of 1907,
“[t]erritory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be
exercised”.
It is beyond dispute, therefore, that military occupation does not entail any transfer to the
occupying Power of the sovereignty of a State which has legitimate sovereignty over a territory. The
Power holds only limited and temporary powers enabling it to manage the occupied territory.
The law of occupation includes the rules of customary international law enshrined inter alia
in the 1907 Hague Regulations and the Fourth Geneva Convention. Palestine has been a party to the
four Geneva Conventions and the first Additional Protocol thereto since 10 April 2014.
Israel is reluctant to acknowledge the applicability of the rules of international humanitarian
law, and thus of the Fourth Geneva Convention, to the occupied territories51 and prefers to speak of
“disputed territories” or “de facto and not de jure application of the Fourth Convention”.
As further regards international humanitarian law, although Israel is not a State party to Hague
Convention IV of 1907  to which the Regulations concerning the Laws and Customs of War on
Land are annexed  the ICJ has considered that its provisions are of a customary nature, and the
48 www.adalah.org/uploads/uploads/Guiding_principles_government.pdf.
49 information.tv5monde.com/international/israel-benjamin-netanyahu-presente-un-programme-encourageant-lacolonisation-
en.
50 Security Council resolution 242, 22 Nov. 1967.
51 The Supreme Court of Israel never speaks of “occupied territories” or “occupation”, but only of “belligerent
occupation” and “zone” (ha-Ezur).
- 25 -
rules established by the Convention with regard to the régime of occupation are thus applicable to
Israel52.
Therefore, the provisions of the 1907 Hague Regulations have become part of customary law,
and some of these provisions, particularly Section III, are especially relevant to the case at hand.
Article 42 of the Hague Regulations provides that “[t]erritory is considered occupied when it
is actually placed under the authority of the hostile army. The occupation extends only to the territory
where such authority has been established and can be exercised”. A belligerent occupation has also
been regarded as established when a territory is placed under the effective control of the armed forces
of a foreign State.
It is the existence of effective control over a given territory that determines the beginning and
end of a belligerent occupation and thus the applicability of international humanitarian law, in
particular the law of occupation  the Hague Regulations53, the Fourth Geneva Convention54, the
Additional Protocol55 and the customary international law relating thereto.
Protected persons present in occupied territory must not be deprived of the rights to which
they are entitled under international humanitarian law and international human rights law.
As recalled by Algeria in its February 2004 oral statement during the advisory proceedings on
the request relating to the construction of the wall56, “Israel’s legal position consists in denying . . .
the applicability of the Fourth Geneva Convention of 1949” on the basis of the fact that it has not
been incorporated into Israeli domestic law.
However, its “non-incorporation does not prevent application”, particularly in the light of
international treaty law and the principle of “implement[ing] in good faith the treaties to which
[States parties] have freely subscribed”, in accordance with Article 26 of the Vienna Convention on
the Law of Treaties.
In addition, many of the rules of the Convention of 12 August 1949 are of direct application57
and need not be incorporated in order to be enforced, in particular the provisions of Part III,
Section III, of the Fourth Convention, entitled “Occupied Territories”.
Algeria would recall with emphasis that the core of international humanitarian law is made up
of “intransgressible principles” which “are to be observed by all States”58, language used by the ICJ
in its Advisory Opinion of 8 July 1996. Similarly, in its judgment in the Kupreškić case, the
International Criminal Tribunal for the former Yugoslavia considered that “most norms of
international humanitarian law . . . are also peremptory norms of international law or jus cogens, i.e.
of a non-derogable and overriding character”59.
52 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 172, para. 89.
53 Hague Regulations, Arts. 42-56.
54 Fourth Geneva Convention, Arts. 47-78.
55 First Additional Protocol, Arts. 14, 63, 69 and 85 (4) (a).
56 Oral statement made by Algeria in Feb. 2004 in the context of the advisory proceedings on the request concerning
the construction of the wall, p. 37.
57 Oral statement of Algeria, Feb. 2004, p. 39. See also P.-Y. Fux and M. Zambelli, Mise en oeuvre de la Quatrième
Convention de Genève dans les territoires palestiniens occupés, IRRC, Sept. 2002, Vol. 84, No. 847.
58 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 257, para. 79.
59 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Kupreškić et al., Trial Chamber,
Judgement of 14 Jan. 2000, paras. 519-520.
- 26 -
As stated by Judge Higgins in her separate opinion [appended to the Advisory Opinion on the
construction of a wall], “the obligations . . . imposed [by international humanitarian law] are . . .
absolute[,] . . . [including in particular] the protection of civilians[, which] remains an
intransgressible obligation of [international] humanitarian law”60.
Under international humanitarian law, situations of occupation are officially classified as
international armed conflicts, i.e. armed confrontations between two or more States61. In addition to
international humanitarian law, human rights law62 remains applicable in situations of occupation.
Consequently, an occupying Power must ensure that members of the local population enjoy
all the rights they are entitled to claim under international law63.
IV.3.2 The law applicable to the West Bank as an “occupied territory”
Israel does not define the West Bank as an “occupied territory”, because of the supposed
absence of a sovereign Power before 1967, when it took control of the territory. Consequently, Israel
rejects the de jure applicability of the law of occupation and claims to be applying de facto the
“humanitarian provisions” of the Fourth Geneva Convention64.
Algeria strongly rejects this view, in particular in light of the historical background presented
by Judge Kooijmans in his separate opinion appended to the Court’s Advisory Opinion on the
construction of the wall, which recalls that “the West Bank . . . was placed by Jordan under its
sovereignty . . . [a] claim . . . relinquished only in 1988”65. And as suggested in the commentary of
the International Committee of the Red Cross (ICRC)66, the legal status of the occupation does not
require the existence of a previous legitimate occupier on the territory in question.
Indeed, according to the ICRC, “the unclear status of a territory does not prevent the
applicability of the rules of the Fourth Convention, including those relating to occupied territory. For
the Fourth Convention to apply, it is sufficient that the State whose armed forces have established
effective control over the territory was not itself the rightful sovereign of the place when the conflict
broke out”. Hence occupation exists once a territory is under the effective control of a State that is
not its recognized sovereign.
This further strengthens the argument that the Fourth Geneva Convention applied from the
moment Israel occupied the West Bank in 1967.
60 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), separate opinion of Judge Higgins, p. 210, para. 14, and p. 212, para. 19.
61 Fourth Geneva Convention, Art. 2; ICTY, Prosecutor v. Tadić, Appeals Chamber, Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction, IT-94-1, 2 Oct. 1995, para. 70.
62 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.
Reports 2005, pp. 242-243, para. 216.
63 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), pp. 178-181, paras. 106-113. United Nations Human Rights Committee, Concluding Observations
on the Fifth Periodic Report of Israel, CCPR/C/ISR/CO/5, 30 Mar. 2022, para. 7 (b).
64 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), pp. 173-174, paras. 90 and 93.
65 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), separate opinion of Judge Kooijmans, pp. 221-222, para. 8.
66 ICRC, First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field, 12 Aug. 1949, Commentary of 2016, para. 324.
- 27 -
Since 1967, the territory of the West Bank has thus been occupied by one of the High
Contracting Parties within the meaning of the Fourth Geneva Convention, to which Jordan and Israel
are both parties.
Moreover, and despite Israel’s persistent opposition67, the ICJ and various United Nations
human rights bodies68 have recognized that all its human rights treaty obligations have continued to
apply to its conduct in the West Bank.
The ICJ69, the United Nations Security Council70 and the Israeli Supreme Court71 have all
characterized the West Bank as occupied territory in which the Hague Regulations and the Fourth
Geneva Convention apply.
Furthermore, the ICJ has recognized that all the territories occupied since 1967, “[t]he
territories situated between the Green Line . . . and the former eastern boundary of Palestine under
the Mandate[,] . . . including East Jerusalem[,] . . . remain occupied territories and Israel . . .
continue[s] to have the status of occupying Power”72.
Algeria would recall, therefore, that the rules and principles that are of relevance in this case
are to be found in the United Nations Charter, certain international treaties, customary international
law, the Hague Regulations of 1907, the Fourth Geneva Convention of 1949, and the relevant
resolutions adopted by the General Assembly, the Security Council and the Human Rights Council,
and that they are applicable in the occupied Palestinian territories.
Israel, as the occupying Power, has once again failed to comply with its obligations under the
provisions of the relevant law in this area.
IV.3.3 The particular situation in the Gaza Strip
One of the most notable violations of international humanitarian law is the blockade of Gaza,
a densely populated strip of land forming an integral part of Palestinian territory. The closures and
the land, sea and air blockade of Gaza, which amount to collective punishment73, have entered their
sixteenth year and continue to have extremely detrimental effects on freedom of movement and the
exercise of economic, social and cultural rights, including the right to an adequate standard of living
and to health, education, work and family life74.
67 Government of Israel, Fifth Periodic Report Submitted by Israel under Article 40 of the Covenant Pursuant to
the Optional Reporting Procedure, 30 Oct. 2019, paras. 23-26.
68 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), pp. 178-181, paras. 106-113; United Nations Committee against Torture, Concluding Observations
on the Fifth Periodic Report of Israel, CAT/C/ISR/5, 16 Feb. 2015, paras. 8-9; United Nations Committee on the
Elimination of Discrimination against Women, Concluding Observations on the Sixth Periodic Report of Israel,
CEDAW/C/ISR/6, 14 July 2017, paras. 14-15; United Nations Committee on Economic, Social and Cultural Rights,
Concluding Observations on the Fourth Periodic Report of Israel, E/C.12/ISR/4, 14 Jan. 2019, paras. 9-10; United Nations
Human Rights Committee, Concluding Observations on the Fifth Periodic Report of Israel, CCPR/C/ISR/CO/5, 30 Mar.
2022, para. 7 (b).
69 Ibid., p. 172, para. 89, and p. 177, para. 101.
70 Security Council resolution 2334, 23 Dec. 2016.
71 HCJ 393/82, Jam’iat Iscan Al-Ma’almoun v. IDF Commander in the Judea and Samaria Area, 28 Dec. 1983;
HCJ 7015/02, Ajuri v. The Commander of IDF Forces in the West Bank, 3 Sept. 2002.
72 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 167, para. 78.
73 A/HRC/46/63, para. 7; A/HRC/37/38, para. 4; A/HRC/34/36, para. 36.
74 See A/73/420.
- 28 -
One of the consequences of the blockade has been to restrict considerably Palestinians’ access
to food, water, fuel, medicines, construction materials and other such essentials. It has also had
disastrous consequences on the daily lives of Palestinians in Gaza, causing a serious humanitarian
and health crisis.
In addition, the blockade has prevented Palestinians from leaving the Gaza Strip, causing
family and social ties to be severed and obstructing access to education and medical care. For
example, patients must obtain an Israeli exit permit to access specialized health services not available
in Gaza and receive critical and sometimes life-saving care.
Moreover, with regard to the Gaza closures, the Israeli authorities have sought to
“differentiate”75 their policy approaches to Gaza and the West Bank, in particular by imposing
greater restrictions on the movement of persons and goods from Gaza to the West Bank, and to
promote the separation of these two parts of the Occupied Palestinian Territory. The Israeli army has
published a “Procedure for settling inhabitants of Judea and Samaria in the Gaza Strip”76, which
states that “in 2006, a decision was made to implement a policy of separation between the Judea and
Samaria Area [the West Bank] and the Gaza Strip, in light of the rise of Hamas in Gaza. The current
policy is explicitly aimed at reducing crossings between these areas”.
The Gaza Strip has also been the scene of repeated hostilities and numerous incidents
constituting violations of international humanitarian law by Israel. Indeed, over the years, Israel has
conducted several large-scale military operations in the Gaza Strip, some of which have been
characterized by the deliberate targeting of civilians and civilian infrastructure, and the bombardment
of densely populated residential areas. Airstrikes and ground attacks have also resulted in civilian
casualties, including women and children, as well as substantial material damage to dwellings,
schools, hospitals and critical infrastructure.
The principle of distinction, which is articulated in the Geneva Conventions, requires the
parties to a conflict to distinguish at all times between civilians and combatants, and to take all
possible precautions to spare civilians and civilian objects. Failure to respect this principle, including
in particular the prohibition of the unnecessary destruction of civilian objects, constitutes a violation
of international humanitarian law.
The excessive use of force by the Israeli forces during demonstrations at the Gaza border has
also been criticized by human rights organizations. Live fire directed at unarmed demonstrators has
killed or wounded a large number of people. Under international humanitarian law, the use of force
must be proportionate and necessary in response to an imminent threat.
In any event, Israel continues to be an occupying Power within the meaning of international
humanitarian law, despite the withdrawal of its military forces and settlements from the territory in
200577. Accordingly, Israel is under an obligation to respect the human rights of the Palestinians
living in Gaza, in particular their right to freedom of movement throughout the Occupied Palestinian
Territory and abroad, which includes both the right to leave a country and the right to enter one’s
own country.
Israel is also obliged to respect the rights of Palestinians for which freedom of movement is a
precondition, for example the right to education, work and health. The United Nations Human Rights
75 https://gisha.org/UserFiles/File/LegalDocuments/54868_response_excerpt_ENG.pdf.
76 www.gov.il/BlobFolder/policy/procedureforsettlingresidentstaffinginthegazastrip/he/%D7%A0%D7%95%D7
%94%D7%9C%20%D7%94%D7%A9%D7%AA%D7%A7%D7%A2%D7%95%D7%AA%20%D7%AA%D7%95%D7
%A9%D7%91%20%D7%90%D7%99%D7%95%D7%A9%20%D7%91%D7%A8%D7%A6%D7%95%D7%A2%D7%
AA%20%D7%A2%D7%96%D7%94.pdf (document available in Hebrew) [translation by the Registry].
77 B. Avni, “The O Word: Is Gaza Occupied Territory?”, N.Y. Sun, 11 Feb. 2008, www.nysun.com/article/foreigno-
word-is-gaza-occupied-territory.
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Committee noted in its General Comment on Article 1278 that, although States may restrict freedom
of movement for reasons of security or to protect public health, public order or the rights of others,
these restrictions must be proportionate and “must not impair the essence of the right . . . the relation
between right and restriction, between norm and exception, must not be reversed”.
The violations of international humanitarian law committed by Israel in the Gaza Strip may
have major legal consequences. Individuals responsible for war crimes, crimes against humanity or
other serious violations of international law must be held personally accountable before international
judicial bodies.
These violations raise important questions about compliance with obligations under
international law. In addition to repeated calls for the establishment of the truth, the protection of
victims’ rights and the application of international law, the violations of international humanitarian
law committed by Israel in the Gaza Strip have been condemned by numerous international
organizations, including the United Nations and the European Union. The latter have called on Israel
to put an end to the blockade, stop the airstrikes on civilian targets and treat Palestinian prisoners in
accordance with international humanitarian law.
What is more, the former ICC prosecutor, Fatou Bensouda, announced on 20 December 2019
that the preliminary examination of the situation in Palestine had led to the determination that war
crimes had been committed in the occupied Palestinian territories and that all the criteria laid down
by the Rome Statute for the opening of an investigation had been met.
Two years later, in February 2021, the ICC decided to investigate the crimes committed by
Israel in the course of the war in Gaza in the summer of 2014, during the repression of the March of
Return in 2018, and in connection with the settlement of the occupied Palestinian territories. To date,
the findings of that investigation have not been made public.
V. VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW
The second body of law that can be invoked is international human rights law, including as
regards the application of certain human rights conventions in the Occupied Palestinian Territory.
Israel is a party to seven79 of the main universal human rights treaties, having ratified the
following: in 1979, the International Convention on the Elimination of All Forms of Racial
Discrimination of 1965; in 1991, the International Covenant on Civil and Political Rights (ICCPR)
of 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979,
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) of 1984 and the Convention on the Rights of the Child (CRC) of 1989; and in 2012, the
Convention on the Rights of Persons with Disabilities of 2008.
Israel’s human rights obligations in the Occupied Palestinian Territory arise from the
jurisdiction and effective control that it exercises as the occupying Power. As indicated by the ICJ in
2004, Israel, as the occupying Power, exercises territorial jurisdiction over the Occupied Palestinian
78 Human Rights Committee, General Comment No. 27 (67), Freedom of movement (article 12), 18 Oct. 1999.
79 International Covenant on Civil and Political Rights (entered into force 23 Mar. 1976), 999 UNTS 171 (ICCPR);
International Covenant on Economic, Social and Cultural Rights (entered into force 3 Jan. 1976), 993 UNTS 3 (ICESCR);
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force 26 June
1987), 1465 UNTS 85 (CAT); International Convention on the Elimination of All Forms of Racial Discrimination (entered
into force 4 Jan. 1969), 660 UNTS 195; Convention on the Elimination of All Forms of Discrimination against Women
(entered into force 3 Sept. 1981) 1249 UNTS 13; Convention on the Rights of the Child (entered into force 2 Sept. 1990)
1577 UNTS 3 (CRC); Convention on the Rights of Persons with Disabilities, United Nations General Assembly
resolution 61/106 (24 Jan. 2007) UN doc. A/RES/61/106 (2007).
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Territory and is therefore, on that basis, bound by human rights obligations owed to the local
population80.
The human rights treaty bodies that oversee the implementation of such treaties have also
maintained that these instruments are binding on Israel in its actions in the occupied territories81, in
its capacity as the occupying Power.
Israel has disputed that its human rights obligations apply outside its national territory82, and
also rejects their co-applicability with international humanitarian law83.
However, their application in the Occupied Palestinian Territory (that is to say, in the West
Bank, including East Jerusalem, and the Gaza Strip) has constantly been affirmed in the relevant
General Assembly resolutions84, in reports of the Secretary-General85 and the High Commissioner
for Human Rights86, and by various treaty bodies.
Israel disputes the application of international human rights law, arguing that it cannot apply
in times of armed conflict. It therefore rejects the application of the 1966 Covenant on Civil and
Political Rights and Covenant on Economic, Social and Cultural Rights, emphasizing that
responsibility for applying them lies with the government in power in the West Bank and the Gaza
Strip.
Israel has asserted that “humanitarian law is the protection granted in a conflict situation such
as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the
protection of citizens from their own Government in times of peace”87. The Court has dismissed this
argument and has consistently held in its jurisprudence that human rights conventions continue to
apply in times of armed conflict88, except in instances where provisions for derogation apply.
The ICJ has also observed that the obligations incumbent upon Israel under the International
Covenant on Economic, Social and Cultural Rights include the obligation “not to raise any obstacle
80 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), pp. 179-181, paras. 110 to 113.
81 Human Rights Committee, Concluding Observations on the Fourth Periodic Report of Israel (21 Nov. 2014),
CCPR/C/ISR/CO/4, para. 5; Committee on Economic, Social and Cultural Rights, Concluding Observations on the Fourth
Periodic Report of Israel (12 Nov. 2019), E/C.12/ISR/CO/4, para. 9; Committee on the Elimination of Racial
Discrimination, Concluding Observations on the Combined Seventeenth to Nineteenth Reports of Israel (27 Jan. 2020),
UN doc. CERD/C/ISR/CO/17-19, paras. 8-9.
82 E/C.12/1/Add.27 (para. 8). See also Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 180-181, para. 112.
83 Human Rights Committee, Concluding Observations on the Fourth Periodic Report of Israel, Addendum,
Information Received from Israel on Follow-Up to the Concluding Observations (9 Feb. 2017), UN doc. CCPR/C/ISR/CP/
4/Add.1, para. 1; Committee on Economic, Social and Cultural Rights, Replies of Israel to the List of Issues (27 Aug. 2019)
UN doc. E/C.12/ISR/Q/4/Add.1, para. 9; Committee on the Elimination of Discrimination against Women, Sixth Periodic
Report of States Parties Due in 2017, Israel (15 June 2017) UN doc. CEDAW/ C/ISR/6, para. 8; Committee on the
Elimination of Racial Discrimination, Summary Record of the 2788th meeting, UN doc. CERD/C/SR.2788 (10 Dec. 2019);
Committee on the Rights of the Child, List of Issues to be Taken up in Connection with the Consideration of the Combined
Second, Third and Fourth Periodic Reports of Israel (CRC/C/ISR/2-4) Addendum, Written Replies of Israel, Reply to the
Issues Raised in part I, (22 May 2013), para. 2 (c); Committee Against Torture, Fifth Periodic Reports of States Parties
Due in 2013, UN doc. CAT/C/ISR/5. (16 Feb. 2015), Question No. 7.
84 General Assembly resolution 71/98.
85 A/69/348 (para. 5) and A/HRC/28/44 (para. 6).
86 A/HRC/8/17 (para. 7) and A/HRC/12/37 (paras. 5 and 6).
87 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I).
88 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.
Reports 2005.
- 31 -
to the exercise of such rights in those fields where competence has been transferred to Palestinian
authorities”89.
Algeria is of the view that a situation of armed conflict or occupation does not release a State
from its human rights obligations90, and it would recall that the simultaneous applicability of
international human rights law and international humanitarian law in such situations has been
confirmed on numerous occasions by human rights treaty bodies, in particular the Human Rights
Committee in its concluding observations91 on the fifth periodic report of Israel, as well as by the
ICJ, which considers that “the protection offered by human rights conventions does not cease in case
of armed conflict, save through the effect of provisions for derogation”92.
And as was argued by the Independent International Commission in its 2022 report93: “In
terms of duty bearers, [it] considers . . . that Israel remains in belligerent occupation of all [the]
territories and is therefore the primary duty bearer within these territories, . . . given the jurisdiction
and effective control exercised by Israel as an occupying Power and the extraterritorial applicability
of a State’s international human rights obligations”.
Therefore, Israel is under an obligation to comply with human rights conventions and
customary rules, which are binding in some instances and have the status of imperative rules of law.
Algeria will present below a non-exhaustive list of the policies and practices attesting to
Israel’s unceasing and deliberate violation of the Palestinian people’s human rights.
V.1 The Israeli measures “aimed at altering demographic composition”
persistently violate the rights of the Palestinian people
One of the basic principles of the law applicable to belligerent occupation is that the occupying
Power must protect the fundamental interests of the population under occupation, which presupposes
in particular prohibiting the transfer of its own civilian population into the territory it occupies94.
Article 49 of the Fourth Geneva Convention is aimed at preventing the occupying Power from
transferring part of its population into an occupied territory for political or racial reasons or in order
to colonize that territory95.
However, since the beginning of the occupation, Israel has adopted a series of policies and
measures intended to “alter the demographic composition” of the occupied territories. This
undertaking, which is contrary to international law, is the main driving force behind its prolonged
occupation and its settlement policy.
89 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 181, para. 112.
90 See, e.g. General Assembly resolution 71/98; A/69/348, para. 5; A/HRC/8/17, para. 7; A/HRC/12/37, paras. 5
and 6; A/HRC/28/44, para. 6; A/HRC/34/38, para. 7.
91 CCPR/C/ISR/CO/5, para. 7.
92 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), pp. 177 and 178, paras. 102 to 106 (emphasis added).
93 Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, 9 May 2022, A/HRC/50/21, p. 6, para. 22.
94 Fourth Geneva Convention, Arts. 27 and 49.
95 See ICRC, Commentary of 1958 to Art. 49 of the Convention relative to the Protection of Civilian Persons in
Time of War.
- 32 -
Algeria will now address the issue of the Israeli “measures aimed at altering demographic
composition”, through a few illustrations of the practices Israel has engaged in since the start of the
settlement process, which constitute flagrant breaches of international law.
V.2 The construction and expansion of Israeli settlements
The construction and expansion of Israeli settlements in the West Bank constitute a major
violation of the law of occupation. The continued expansion of the settlements96 is central to
numerous violations of the Palestinian people’s human rights.
Since the early years of occupation, Israel has implemented a policy of illegal settlements in
the Occupied Palestinian Territory. Currently, the West Bank has a total of at least 590,000 settlers97
(roughly 386,000 divided among some 130 settlements in Area C, and 208,000 in East Jerusalem)98,
which means that the settler population has more than doubled since the start of the Oslo process in
199399.
The Oslo Accords between Israel and the PLO provided that the issue of the settlements would
be dealt with in the framework of the permanent status negotiations, which were to be concluded
within five years. The interim agreement signed in September 1995 stipulated that none of the parties
would take any measures likely to alter the status of the West Bank and the Gaza Strip100.
The breakdown of the permanent status negotiations at Camp David in July 2000 enabled
Israel to intensify and develop its settlement policy.
According to the different reports published by the Office of the High Commissioner for
Human Rights, Israel spent several billion dollars on the construction of settlements and related
infrastructures: roads, water supply and treatment systems, communications and electricity networks,
security systems and educational and health-care establishments101.
One of the basic principles of the law applicable to belligerent occupation is that the occupying
Power must protect the fundamental interests of the population under occupation, which requires,
among other things, prohibiting the transfer of its own population into the territory it occupies102.
Accordingly, the settlement activity in the West Bank, including East Jerusalem, must not only
be regarded as a breach of Israel’s obligations under international human rights law or a grave breach
of the sixth paragraph of Article 49 of the Fourth Geneva Convention, which prohibits the occupying
Power from transferring its own population into the occupied territory. The construction and
expansion of the Israeli settlements in the West Bank also constitute a war crime under the Rome
Statute of the ICC and should be interpreted as a colonial enterprise which prevents the realization
96 See A/HRC/34/39 and A/71/355 (para. 34).
97 Peace Now data on settlements, peacenow.org.il/settlements-watch/matzav/population.
98 www.ohchr.org/en/news/2023/03/human-rights-council-hears-current-israeli-plan-double-settler-populationoccupied.
99 Report of the Middle East Quartet, July 2016, p. 4, available at: www.un.org/News/dh/infocus/
middle_east/Report-of-the-Middle-East-Quartet.pdf.
100 “Facts on the Ground since the Oslo Agreement, September 1993”, Palestine-Israel Journal of Politics,
Economics and Culture, Vol. 7, 4 Dec. 2000, www.pij.org/details.php?id=269.
101 Yesh Din position paper “Plundered Pastures: Israeli settler shepherding outposts in the West Bank and their
infringement on Palestinians’ human rights”, Dec. 2021. See also Peace Now data on settlements,
peacenow.org.il/settlements-watch/matzav/population.
102 Fourth Geneva Convention, Arts. 27 and 49.
- 33 -
of Palestinians’ right to self-determination and deliberately continues the “dePalestinization” of the
occupied territory103.
Seeking to extend its population’s reach, Israel even described the settlements as a “national
value” in its 2018 Basic Law on the Jewish Nation-State104, part of a plan that has been devised and
developed since 1947, as made clear by the World Zionist Federation: “[I]t will now become
necessary for us to conduct a race against time. During this period, everything will be mainly
determined by the facts we establish in these territories and less by any other considerations. This is
therefore the best time for launching an extensive and comprehensive settlement momentum”105.
In justifying its official position on the settlements, Israel recalls that Jews have been present
in the territory for thousands of years and that the Mandate for Palestine adopted by the League of
Nations in 1922 recognized “the historical connection of the Jewish people with Palestine”106.
Algeria joins Palestine in firmly condemning the Israeli settlements and endorses its
observation that they have no legal validity, constitute flagrant breaches under international law,
namely the Fourth Geneva Convention, and present a major obstacle to peace107.
The continuous expansion of the settlements and related infrastructure strongly contributes to
consolidating the occupation and renders the “two-State solution” increasingly unviable; as a result,
over the last decade, the United Nations has “identified 3,372 incidents of violence committed by
settlers. In 2022, settler violence reached the highest levels ever recorded by the United Nations”108.
The Israeli authorities have publicly stated their country’s intention to make the presence of
the settlements irreversible and to annex all or part of Area C. Thus, in a speech to the settlers at
Elkana on 17 May 2022, Prime Minister Bennett emphasized the permanent nature of the settlements
by referring to them as already forming an integral part of the State of Israel: “With the help of God,
we will also be here at the celebrations of Elkana’s 50th and 75th, 100th, 200th and 2,000th birthdays,
within a united and sovereign Jewish State in the Land of Israel”109.
In the light of these elements, in her report published in 2022110, the United Nations Special
Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 called
for a “paradigm shift” in the assessment of the Israeli occupation of Palestinian territory, recognizing
its real nature as “an intentionally acquisitive, segregationist and repressive regime”. Her conclusion
103 R. Wilde, Using the Master’s Tools to Dismantle the Master’s House: International Law and Palestinian
Liberation, The Palestine Yearbook of International Law Online, Vol. 22, Issue 1, 2021.
104 main.knesset.gov.il/EN/News/PressReleases/Pages/Pr13978_pg.aspx.
105 World Zionist Federation, “Settlement in Judea and Samaria  strategy, policy and plans” (see A/36/341-
S/14566).
106 See Note by the Secretary-General on the question of Palestine: Text of Mandate (A/292). See also Israeli
Ministry of Foreign Affairs, “Israeli Settlements and International Law”, 30 Nov. 2015, available at
www.gov.il/en/Departments/General/israeli-settlement-and-international-law.
107 See S/PV.7853.
108 Human Rights Council, Le transfert par Israël de sa propre population dans le territoire qu’il occupe constitue
un crime de guerre, 28 Mar. 2023, www.ohchr.org/fr/news/2023/03/human-rights-council-hears-current-israeli-plandouble-
settler-populationoccupied#:~:
text=Christian%20Salazar%20Volkmann%2C%20a%20indiqu%C3%A9,%C3%A0%20plus%20de%20700
%20000 [translation by the Registry].
109 Speech by Prime Minister Bennett during a visit to the Elkana local council on 17 May 2022.
110 United Nations General Assembly, Situation of human rights in the Palestinian territories occupied since 1967,
21 Sept. 2022, A/77/356, p. 21, paras. 70-71.
- 34 -
was that the Israeli occupation, as such, “entails an unlawful use of force and therefore can be seen
as an act of aggression”111, which requires immediate cessation and the provision of reparations.
The settlements constitute a transfer of the population of one State into the territory it occupies,
which is a breach of international humanitarian law112. The illegal nature of the settlements under
international law has been confirmed by various international bodies, including the ICJ113, the
Security Council114, the General Assembly and the Human Rights Council115.
V.3 Demolitions, evictions and risk of forced displacement
of the Palestinian populations
Under international law, private property in occupied territory must be respected and cannot
be confiscated by the occupying Power116. Eviction procedures in the instances in question and
similar ones are based on the application of two Israeli laws, the Absentee Property Law and the
Legal and Administrative Matters Law, which are to all appearances incompatible with this
obligation117. The evictions are therefore contrary to the obligations incumbent on Israel under
international law.
The manner in which Israel has administered the Occupied Palestinian Territory is typical of
colonial practices. In her 2022 report, the United Nations Special Rapporteur noted that “[t]he
profound illegality of the situation in the Occupied Palestinian Territory emanates from the
intentional unlawful displacement of its native (and refugee) Palestinian inhabitants, coupled with
alteration of the legal status, geographical nature and demographic composition of the occupied
territory through fragmentation of land, seizure and exploitation of natural resources, impairment of
Palestinian economic development, through and for a (growing) colonist minority”118.
Algeria would emphasize that the imposition of settlers, settlements and settlement
infrastructure in the topography and space of the Palestinians has in fact served to prevent the
realization of the Palestinians’ right to self-determination119, violating a number of peremptory norms
of international law120.
The demolitions and evictions carried out pursuant to Israel’s discriminatory planning régime
have been condemned by the Human Rights Committee, which concluded that “the systematic
practice of demolitions and forced evictions based on discriminatory policies have led to the
separation of Jewish and Palestinian communities in the Occupied Palestinian Territory, which
amounts to racial segregation”121.
111 Ibid., p. 21, para. 72.
112 Fourth Geneva Convention, Art. 49, sixth paragraph.
113 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), pp. 183-184, para. 120.
114 United Nations Security Council resolutions 2334 (2016) and 465 (1980).
115 Human Rights Council resolution 31/36 and previous resolutions, and Declaration of 17 December 2014 adopted
by the Conference of High Contracting Parties to the Fourth Geneva Convention, para. 8.
116 Hague Regulations, Art. 46.
117 United Nations General Assembly, Situation of human rights in the Palestinian territories occupied since 1967,
21 Sept. 2022, A/75/376, paras. 40-56.
118 Ibid., para. 35.
119 [A/77/356, para. 35.]
120 A/HRC/22/63, para. 38.
121 CCPR/C/ISR/CO/5, para. 42.
- 35 -
V.4 The illegal operations involving the seizure and destruction of property
in the occupied Palestinian territories
The destruction and illegal seizure of property in occupied territories have been component
features of an Israeli policy of demolition of private Palestinian property in the occupied Palestinian
territories since 1967.
The destruction of houses, agricultural land and other Palestinian property in the occupied
territories, including East Jerusalem, is inextricably linked to Israel’s long-standing policy of
appropriating as much occupied land as possible, in particular by creating Israeli settlements.
The Israeli Committee Against House Demolitions has estimated that Israel destroyed
49,532 Palestinian structures in 2019122.
Israel’s demolition policy involves two types of measures: administrative demolitions and
punitive demolitions. Officially, administrative demolitions of houses are carried out to “enforce the
building codes and regulations which, in the occupied Palestinian territories, are established by the
Israeli army”. Punitive demolitions consist in demolishing the houses of Palestinians, or their
neighbours or relatives, suspected of violent acts against Israelis.
Punitive demolitions of houses and the appropriation of property in an occupied territory, when
not justified by military necessity and carried out unlawfully and wantonly are regarded as a form of
“collective punishment” and constitute grave breaches of Article 147 of the Geneva Convention
relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), and thus
as a war crime under international law.
It is interesting to note that Theodor Meron, a legal adviser to the Israeli Ministry of Foreign
Affairs, informed the Israeli Prime Minister’s Office, in a secret memorandum, that “house
demolitions, even of suspected terrorists’ residences, violated the Fourth Geneva Convention relative
to the Protection of Civilian Persons in Time of War . . . Undertaking such measures, as though they
were in continuity with British mandatory emergency regulations, might be useful as ‘hasbara’, or
public diplomacy, but were ‘legally unconvincing’”123. The United Nations Special Rapporteur on
the right to adequate housing affirmed in a press release that “[t]he systematic demolition of
Palestinian homes, erection of illegal Israeli settlements and systematic denial of building permits
for Palestinians in the occupied West Bank amounts to ‘domicide’”124.
Israel has also used legal mechanisms  the Absentee Property Law and land registration
procedures  to confiscate Palestinian lands and property. The Special Rapporteur on the situation
of human rights in the Palestinian territories occupied since 1967 has considered that an
institutionalized régime of systematic racial oppression and discrimination against the people of
Palestine has been established. These practices are used as a means of Judaizing parts of the occupied
territory, in particular East Jerusalem125.
Algeria would recall that the demolitions, and the forced evictions they entail, give rise to
numerous violations of human rights, adversely affecting rights to adequate housing, water,
sanitation, health, education, family life, residence and freedom of movement.
122 The Israeli Committee Against House Demolitions (ICAHD).
123 www.haaretz.com/opinion/2015-05-19/ty-article/.premium/israel-knew-all-along-that-settlements-wereillegal/
0000017f-e70e-d62c-a1ff-ff7f9ff80000.
124 www.ohchr.org/en/press-releases/2023/02/un-experts-say-israel-should-be-held-accountable-acts-domicide.
125 Amnesty International, Israel and the Occupied Territories — Demolition and dispossession: the destruction of
Palestinian homes, p. 31.
- 36 -
The forcible transfer of Palestinian populations is sometimes also accompanied by violations
of other provisions of international humanitarian law, such as the prohibition on the destruction of
private and public property126.
Pursuant to the provisions of the Fourth Geneva Convention, the occupying Power must
administer public property in accordance with the rules of usufruct. It may thus use such property
and dispose of it so long as this does not alter its substance127. Private property must be respected
and cannot be confiscated128; the destruction of property by the occupying Power is expressly
prohibited by international humanitarian law129.
The seizure of property and destruction of Palestinian homes, infrastructure and orchards, for
the purpose of establishing, developing and maintaining settlements and providing access thereto,
also constitute flagrant breaches of the rules of usufruct.
Customary international law places an obligation on the occupying Power to respect private
property130 and prohibits the confiscation of private property by the army of occupation131. Land may
be expropriated under customary law in the occupied territory, provided that the expropriation
benefits the local population. The expropriation of private land for the establishment of settlements
is clearly illegal132.
The seizure of land for the establishment of settlements cannot be justified as a form of
requisition133, for a number of reasons. First, civilian installations do not constitute a “need of the
army of occupation” (military installation). Secondly, a requisition (as opposed to confiscation or
expropriation) is temporary in nature; however, requisitions of land for the establishment of
settlements are not temporary134 but have a long-term objective135.
Algeria would emphasize that the establishment of settlements, the forcible displacement of
populations, and the destruction and appropriation of property, when not justified by military
necessity and when carried out on a large scale, unlawfully and wantonly, constitute grave breaches
of the Fourth Geneva Convention and may qualify as war crimes under Articles 49, 53 and 147 of
the Fourth Geneva Convention and the provisions of Articles 46 and 56 of the Hague Regulations,
126 Fourth Geneva Convention, Art. 53, and Convention respecting the Laws and Customs of War on Land, Art. 46.
127 Convention respecting the Laws and Customs of War on Land, Art. 55; Fourth Geneva Convention, Art. 53;
and customary international humanitarian law (ICRC), Rule 51.
128 Convention respecting the Laws and Customs of War on Land, Arts. 46 and 56; Fourth Geneva Convention,
Art. 53; and customary international humanitarian law (ICRC), Rule 51.
129 Fourth Geneva Convention, Art. 53; and customary international humanitarian law (ICRC), Rule 51.
130 Art. 46 of the Hague Regulations.
131 Ibid.
132 Art. 52 of the Hague Regulations.
133 The concept of requisition is based on taking property for a limited period of time with the intention of returning
it when that time expires. When the property is taken for permanent use by others, the fact that at some date in the future
the property may conceivably be returned to its original owners does not mean that the owner is deprived of use of the
property merely for a limited time. [D. Kretzmer and Y. Ronen, “Civilian Settlements”, The Occupation of Justice: The
Supreme Court of Israel and the Occupied Territories, online ed., Oxford Academic, 2021, fn 57].
134 See jurisprudence of the Israeli Supreme Court: HCJ 290/89, Jouha v. Military Commander in Judea and
Samaria, 3 July 1989.
135 Land is not expressly mentioned in Art. 52 but is mentioned by the Supreme Court in HCJ 606/78 Ayoub v.
Minister of Defence, 15 Mar. 1979, PD 33(2) 113, 129 (Beit El).
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and such forcible displacements could engage the criminal responsibility of the individuals
concerned136.
In the same vein, the Human Rights Committee has considered that “the systematic practice
of demolitions and forced evictions based on discriminatory policies have led to the separation of
Jewish and Palestinian communities in the Occupied Palestinian Territory, which amounts to racial
segregation”137.
V.5 The discriminatory laws on the right to housing
The right to housing for Palestinians in East Jerusalem has been undermined by the Absentee
Property Law138, enacted in 1950, which allows the confiscation of property from Palestinians in
areas where “the law of the State of Israel applies”, if the owner of the property fled or was otherwise
outside that area after 27 November 1947139.
Since the annexation of East Jerusalem, which was illegal under international law, property
belonging to Palestinians residing outside the city has been considered “absentee property” and, in
some cases, transferred or sold to settler organizations140. Although the Legal and Administrative
Matters Law permits claims for restitution of property in East Jerusalem owned by Jewish persons
before 1948, it does not allow Palestinians to claim equivalent ownership rights in West Jerusalem.
By applying the Absentee Property Law and the Legal and Administrative Matters Law in East
Jerusalem, Israel is abusing the limited authority that an occupying Power may have under
international humanitarian law. These two laws appear to be incompatible with the obligation to
respect, and not to confiscate, private property in an occupied territory141. In addition, confiscations
under these laws are carried out on the sole basis of the nationality or origin of the owner, which
makes them inherently discriminatory.
V.6 Acts amounting to annexation, including unilateral actions taken
by Israel to dispose of parts of the Occupied Palestinian Territory
as if it held sovereignty over it
Under international law, an occupying Power is entitled to use the natural resources of an
occupied territory to a limited extent. Article 55 of the 1907 Regulations concerning the Laws and
Customs of War on Land (Hague Regulations) stipulates that an occupying Power may only act as
administrator and usufructuary of public buildings, real estate, forests and agricultural estates. In
doing so, it must safeguard the capital of these properties, and administer them in accordance with
the rules of usufruct. Moreover, Articles 28 and 47 of the Hague Regulations, and Article 33 of the
Fourth Geneva Convention, prohibit pillaging. This prohibition applies to all types of property,
whether belonging to private persons or to the State142. Pillaging is also a war crime under
Article 8 (2) (b) (xvi) of the Rome Statute of the ICC.
136 Fourth Geneva Convention, Art. 147, and Rome Statute of the International Criminal Court, Art. 8 (2) (b) (viii).
137 CCPR/C/ISR/CO/5, para. 42.
138 See www.adalah.org/uploads/oldfiles/Public/files/Discriminatory-Laws-Database/English/04-Absentees-
Property-Law-1950.pdf.
139 A/75/376, para. 51, and A/70/351, paras. 30 and 31.
140 A/75/376, paras. 51 and 107; see also law.acri.org.il/pdf/unsafe-space-en.pdf, p. 35.
141 Hague Regulations, Art. 46, and A/75/376, para. 51.
142 See ICRC, Commentary of 1958 to Art. 33 of the Geneva Convention relative to the Protection of Civilian
Persons in Time of War.
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Land is a key natural resource, integral to the Palestinian identity and economy. Currently,
Palestinians are able to build on less than 1 per cent of the land in Area C, owing to Israeli planning
policies and the expropriations carried out by Israel since 1967. Israel has dispossessed owners of
their land throughout the West Bank for various purposes, including for the establishment of
settlements and industrial zones, for farming and grazing land for settlers, and for roads, in violation
of international law143.
Where this coercion leads people to leave their homes, it may constitute an element of the
crime of deportation or forcible transfer of population, a crime against humanity under
Article 7 (1) (d) of the Rome Statute.
Quasi-governmental entities, for example, have played a role in expropriating land and
managing its allocation to settlements144; this includes the Jewish National Fund, which was
established in 1901 to purchase land in the region for Jewish settlement145. In August 2022, the Israeli
media reported that the Jewish National Fund had voted to earmark 61 million shekels
(US$16 million) for the purchase of land belonging to Palestinians in the Jordan Valley, located
within a closed military zone.
Israel has also used land for its industrial and economic activity by creating industrial zones
in various parts of the West Bank. It has encouraged companies to transfer their operations to these
zones by offering them financial incentives, permits and licences which are rarely granted to
companies providing services to Palestinians. Israel has taken strong measures to dissuade States and
companies from distinguishing between Israeli-manufactured products and those coming from
settlements146.
Under the Oslo Accords, Israel was temporarily given responsibility for the planning, zoning
and development of Area C. However, this responsibility still has not been transferred to the
Palestinian Authority, severely limiting development opportunities for Palestinians147. Israel has
used its planning and zoning powers to impose substantial restrictions on construction activities,
which apply mainly to Palestinians, in order to limit their use of land and support the development
of settlements.
VI. HOW THE POLICIES AND PRACTICES OF ISRAEL AFFECT
THE STATUS OF THE OCCUPATION
Under international law, the occupation of a territory by a foreign Power is subject to certain
obligations and restrictions. The occupation must be temporary and associated with an armed
conflict, and it must not entail the annexation of the occupied territory or any permanent changes in
its demographic composition or status. The occupying Power is also subject to certain obligations,
such as respect for human rights, humanitarian law and the right to self-determination of the peoples
143 B’Tselem, State Business: Israel’s Misappropriation of land in the West Bank through Settler Violence
(Jerusalem, Nov. 2021), p. 7. See also B’Tselem, Land Grab, p. 47; Office for the Coordination of Humanitarian Affairs,
“Area C of the West Bank: key humanitarian concerns”, updated Aug. 2014.
144 Uri Blau, “From N.Y.C. to the West Bank: following the money trail that supports Israeli settlements”, Haaretz,
7 Dec. 2015.
145 Peace Now, “Involvement of KKL-JNF and the Settlement Division in the Settlements”, p. 2. Available at
peacenow.org.il/wp-content/uploads/2020/02/KKL_Settlement-Division-Fact-Sheet.pdf.
146 Middle East Monitor, “Israel threatens Norway with ‘adverse’ impact following change in settlement labels”,
13 June 2022.
147 See Office for the Coordination of Humanitarian Affairs, Special Focus: “Restricting Space: The Planning
Regime Applied by Israel in Area C of the West Bank”, Dec. 2009. See Office for the Coordination of Humanitarian
Affairs, “Area C of the West Bank: key humanitarian concerns”, updated Aug. 2014; TD/B/EX(71)/2, para. 33. See also
Office for the Coordination of Humanitarian Affairs, “Humanitarian Bulletin: January-May 2021”, available at
www.ochaopt.org/content/humanitarian-bulletin-januarymay-2021.
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under occupation, as well as the prohibition on transferring its own population into the occupied
territory.
As an occupying Power, Israel is subject to the obligations provided for by international
humanitarian law, in particular the Geneva Conventions of 1949, which establish the rights and duties
of occupying parties. One such obligation is to respect the fundamental rights of the occupied
population and not to take any action aimed at unilaterally altering the status of the occupied territory.
In view of the reality on the ground, the Israeli occupation is clearly characterized by an undue
prolongation and the expansion of Israeli settlements in the occupied Palestinian territories, which
raises questions about the status of the occupation.
VI.1 The prolonged occupation
Israel’s prolonged occupation of Palestinian territory, including by maintaining military and
administrative control over Palestinian territories and building settlements in the West Bank and East
Jerusalem, is considered illegal under international law and by the international community as a
whole, which has expressed its views on this subject through United Nations resolutions.
These settlements are in breach of international humanitarian law, in particular the Fourth
Geneva Convention, which prohibits the transfer of civilian populations into occupied territories.
They create obstacles to the realization of the Palestinian people’s right to self-determination, limit
the sovereignty and autonomy of the Palestinian Authority and adversely affect the daily lives of
Palestinians.
The measures aimed at altering the demographic composition and distribution, through the
construction of Israeli settlements in the occupied territories, the demolition of Palestinian houses
and the expropriation of Palestinian farms and agricultural property, are considered a breach of
humanitarian law and may be an obstacle to peace by creating territorial divisions and fragmenting
the Palestinian population.
Indeed, in addition to the territorial discontinuity between Gaza and the West Bank, the
settlement networks, their road infrastructures and the separation wall have transformed Palestine
into geographically non-communicating Bantustans, creating a situation in which a two-State
solution is impossible. This division hampers the governance, economy and development of an
independent and viable Palestinian State. It also complicates reconciliation efforts between
Palestinian factions. At best, such territorial dismemberment diminishes the prospects for a viable
Palestinian State.
In addition to being encouraged by Israeli policies, the illegal actions of settlers are also
protected by the authorities, through the militarization of settlements and the arming of settlers, the
construction of roads and military outposts, and the implementation of a legal arsenal ensuring that
they go unpunished.
The aim is to create colonial enclaves through an aggressive strategy designed to dismember
Palestine in order to make it impossible for a viable Palestinian State to emerge, or to create an entity
that is organically dependent on Israel, without any territorial continuity or contiguity, or any defence
or security capacity. Ultimately, this strategy is intended to impose a one-State solution, in which
Palestinians will become subjects under a system of apartheid.
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VI.2 The construction of Israeli settlements in the
West Bank and East Jerusalem
The construction of Israeli settlements in the West Bank and East Jerusalem is considered a
breach of international humanitarian law, in particular the Fourth Geneva Convention, which
prohibits the settlement of occupied territories. In 2004, the ICJ moreover rendered an advisory
opinion affirming that the construction of the Israeli separation wall in the West Bank was illegal
and calling for it to be dismantled.
VI.3 The de facto annexation of certain parts of the Occupied
Palestinian Territory, such as East Jerusalem
This annexation is also considered illegal under international law, which does not recognize
the acquisition of territory by force. In particular, Israel’s annexation of East Jerusalem in 1980 is
not recognized by the international community. The United Nations regards East Jerusalem as an
occupied territory, and measures taken by Israel to alter its character and status, such as the
construction of settlements, are also considered to be illegal under international law.
VI.4 Israel’s restrictions on the freedom of
movement of Palestinians
This prolonged occupation, settlement and annexation has led to numerous human rights
violations, in particular the adoption of discriminatory measures, including restrictions on freedom
of movement.
Palestinians effectively face numerous restrictions on their movements as a result of the Israeli
occupation. Checkpoints, roadblocks and a separation wall have been erected, limiting their mobility
and complicating their everyday journeys. This has repercussions on access to essential services,
schools, jobs, health care and agricultural resources. Israel has additionally imposed a system of
permits and restrictions regulating Palestinians’ movements in the West Bank and Gaza.
VI.5 Physical separation
The separation wall, which Israel considers to be a security measure, was largely erected
within the West Bank, and not on the 1967 Green Line. This led to the confiscation of Palestinian
land and the physical separation of Palestinian communities, affecting their daily lives and means of
subsistence.
VI.6 The disproportionate use of lethal force
The use of lethal force by the Israeli security forces is common practice in the Occupied
Palestinian Territory. Such force is often used whatever the gravity of the threat identified, and as a
first rather than a last resort, in defiance of international norms148.
It should be emphasized that, absent a threat of death or serious injury, murder by firearm
constitutes a violation of the right to life. In the context of an occupation, it may also be characterized
148 www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-use-force-and-firearms-law-enforcement.
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as wilful killing within the meaning of the Fourth Geneva Convention (Article 147), and thus
constitute a war crime149.
VI.7 The plundering of Palestinian resources
The plundering of Palestinian natural resources is an integral part of Israel’s settlement policy.
In addition to its illegal exploitation of the fishery and gas resources on the Palestinian coasts of
Gaza, Israel continues to over-exploit Palestinian and shared water resources. Israel also pollutes the
Palestinian coasts and underground resources with wastewater, which explains why 79 per cent of
the groundwater in Gaza is no longer potable and 30 per cent of diseases are water-borne.
The situation endured by Palestinians is completely at odds with the 2030 Agenda for
Sustainable Development, since the occupying Power is continuing to hamper development through
the confiscation of land and exploitation of natural resources in Palestinian territory.
VI.8 The blockade of Gaza
The blockade of the Gaza Strip was imposed by Israel in 2007 following its withdrawal from
this integral part of Palestinian territory. The blockade has had a devastating impact on the economy
of Gaza, leading to a shortage of food, water, medicine and other basic goods. It has also prevented
Palestinians from leaving Gaza, limiting their work and educational opportunities and access to
health care and basic services.
VI.9 The adoption and introduction of discriminatory and
segregationist laws and policies
Israel has subjected the Palestinian population to a demographic threat and has imposed
measures to control and reduce their presence and access to land in Israel and the occupied Palestinian
territories. The demographic objectives in question can be seen in the official plans for the
“Judaization” of certain areas of Israel and the West Bank, including East Jerusalem, plans that
expose thousands of Palestinians to a risk of forcible transfer.
Israeli Jews and Palestinian Arabs in East Jerusalem live under a régime that differentiates the
distribution of rights and benefits on the basis of national and ethnic identity and ensures the
supremacy of one group over the other. The Israeli authorities treat Palestinians as an inferior racial
group defined by its non-Jewish Arab status. This racial discrimination is enshrined in laws that affect
Palestinians throughout Israel and the occupied Palestinian territories.
It should further be recalled that the Palestinian refugees and descendants of those refugees
who were forcibly displaced during the 1947-1949 and 1967 conflicts continue to be deprived of the
right to return to their former place of residence. This Israeli-imposed exclusion of these refugees is
a flagrant breach of international law.
In addition, the 2018 Basic Law discriminates against non-Jews by stipulating that the exercise
of the right to self-determination in Israel is unique to the Jewish people and establishing Hebrew as
the country’s only official language, downgrading Arabic to a language with “special status”.
Furthermore, while Israeli settlements in the Occupied Palestinian Territory are illegal under
international law and moreover present an obstacle to the enjoyment of human rights by the
149 See also Rome Statute, Art. 8 (2) (a) (i).
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population as a whole, the Basic Law constitutionally elevates them to the status of a “national
value”.
In its concluding observations150, the Committee on the Elimination of Racial Discrimination
(CERD Committee) has also emphasized the discriminatory aspect of Israel’s laws and practices and
“urges the State party to review the Basic Law . . . with a view to bringing it into line with the
Convention. According to general recommendation No. 21 (1996) on the right to self-determination,
all peoples have the right to determine freely their political status . . . As regards the expansion of
Jewish settlements, the Committee urges the State party to comply with its international legal
obligations, including under the Geneva Convention relative to the Protection of Civilian Persons in
Time of War”.
In the same vein, the CERD Committee has expressed concern at the “maintenance of several
laws that discriminate against Arab citizens of Israel and Palestinians in the Occupied Palestinian
Territory, and that create differences among them, as regards their civil status, legal protection, access
to social and economic benefits, or right to land and property. The Committee is also concerned about
the adoption of Amendment No. 30 of 2018 to the already discriminatory Entry into Israel Law (Law
No. 5712-1952), which grants the Israeli Minister of Interior broad discretion to revoke the
permanent residency permit of Palestinians living in East Jerusalem”151.
Israel’s discriminatory policy also involves persistent segregation. Indeed, there are still
Jewish and non-Jewish sectors, notably with two education systems in which teaching conditions are
not the same, and two types of municipalities, namely Jewish municipalities and so-called “minority”
municipalities, which raises questions with regard to Article 3 of the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD).
As regards the particular situation in the Occupied Palestinian Territory, policies and practices
amounting to segregation are exemplified by the existence of two entirely separate legal systems and
sets of institutions, one designed for the Jewish communities in illegal settlements, and the other for
the Palestinian populations in Palestinian towns and villages. This gives rise to régimes based on a
rigid separation between these two groups, who live on the same territory but do not enjoy either
equal use of roads and infrastructure or equal access to basic services and water resources152.
This separation153 is clearly evidenced by the existence of a complex set of restrictions on
freedom of movement resulting from the presence of the Wall, settlements, roadblocks and military
checkpoints, and by the obligation to use separate roads and the enforcement of a permit system that
has a detrimental impact on the Palestinian population.
In view of these practices, the CERD Committee has drawn Israel’s attention to “its general
recommendation 19 (1995) on Article 3 of the Convention, concerning the prevention, prohibition
and eradication of all policies and practices of racial segregation and apartheid”, and has urged the
State party “to eradicate all forms of segregation between Jewish and non-Jewish communities and
any such policies or practices that severely and disproportionately affect the Palestinian population
in Israel proper and in the Occupied Palestinian Territory”.
It should be recalled that the phrase “related discriminatory legislation and measures” in
paragraph 18 (a) of resolution 77/247 includes any measures relating to policies and practices of
racial segregation and apartheid that “severely and disproportionately affect the Palestinian
150 Committee on the Elimination of Racial Discrimination (CERD), Concluding observations on the combined
seventeenth to nineteenth reports of Israel, Nov.-Dec. 2019, para. 14.
151 Ibid., para. 15.
152 Ibid., para. 23.
153 Ibid.
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population in Israel proper and in the Occupied Palestinian Territory”154, with regard to which the
CERD Committee has expressed concern, as mentioned above.
Moreover, the situation in the State of Palestine is the subject of an ongoing investigation by
the ICC155, in respect of which civil society organizations have provided the Prosecutor with
evidence of the existence of a reasonable basis to believe that the crime against humanity of apartheid
may have been committed in the occupied territories.
This notwithstanding, an inter-state communication156 submitted to the CERD Committee by
the State of Palestine against Israel, which concerns discriminatory policies and practices in the
occupied Palestinian territories, is also under consideration in the Conciliation Commission157. In
that document, the State of Palestine mentions its right to submit a communication regarding the
CERD violations committed “against ethnic Palestinians living in ‘Israel proper’”.
VI.10 The prolongation and exacerbation of
the political impasse
Israel’s policies and practices have complicated peace efforts and contributed to a persistent
political impasse between Israelis and Palestinians. Indeed, peace negotiations have been hampered
by disputes relating to the occupation, the settlements, the refugee issue, security and other
fundamental matters.
In addition to these examples, other, more pernicious, measures should be mentioned, such as
the withholding of Palestinian tax and customs revenues, and the commercial dumping of Israeli
products at the expense of Palestinian agricultural and industrial production, tactics which contribute
to the poor living conditions and human insecurity of Palestinians.
Taken together, these policies and practices create major obstacles to the establishment of an
independent, viable Palestinian State, compromising the Palestinian people’s right to
self-determination.
In view of the foregoing, the policies and practices of Israel which have been criticized by
numerous States and international organizations have a negative impact on the legal status of the
occupation, as they overstep the limits established by international humanitarian law and legitimize
the criticism that Israel is failing to comply with its obligations as an occupying Power and to make
any serious effort to reach a just and lasting solution to the Israeli-Palestinian conflict.
By violating the right of the Palestinian people to self-determination, by occupying, settling
and annexing the Palestinian territory occupied since 1967, by altering the demographic composition,
character and status of the Holy City of Jerusalem, and by imposing an iniquitous blockade on the
Gaza Strip, Israel is breaching international law and reinforcing its own illegal occupation.
These breaches raise concerns about the duration of the occupation, the de facto annexation of
Palestinian territories, the violation of the Palestinian people’s right to self-determination, and
154 Ibid.
155 ICC, Pre-Trial Chamber I, Situation in the State of Palestine, ICC-01/18: On 3 Mar. 2021, the
Prosecutor announced the opening of the investigation into the Situation in the State of Palestine. This followed Pre-Trial
Chamber I’s decision on 5 Feb. 2021 that the Court could exercise its criminal jurisdiction in the Situation and, by majority,
that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.
156 CERD, Inter-state communication, 12 Dec. 2019, CERD/C/100/3, www.ohchr.org/sites/default/files/
Documents/HRBodies/CERD/CERD-C-100-3.pdf.
157 The Conciliation Commission was set up in accordance with Art. 12 (1) (b) of CERD. See also
www.ohchr.org/en/press-releases/2022/05/state-palestine-against-israel-conciliation-commission-holds-first-person.
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Israel’s obligation to respect international humanitarian law. They also make it increasingly difficult
to bring about a two-State solution based on the 1967 boundaries.
Consequently, Algeria considers that the policies and practices of Israel call into question the
legal status of the occupation since:
 by violating the Palestinian people’s right to self-determination, Israel is not allowing the
Palestinian population to decide its own future;
 by occupying, settling and annexing the Occupied Palestinian Territory, Israel is depriving the
Palestinian population of its fundamental rights and making it impossible for them to live a
decent and normal life;
 by altering the demographic composition, character and status of the Holy City of Jerusalem,
Israel is seeking to erase the city’s Palestinian identity and impede the creation of a Palestinian
State;
 by subjecting Palestinians to a climate of widespread violence and a series of restrictions,
including on freedom of movement, access to water and electricity, and the right to work, and by
subjecting them to collective punishment;
 by violating international law, Israel is also exposing itself to international sanctions and making
it more difficult to conclude a peace agreement with the Palestinians;
 by continuing these policies and practices, Israel is contributing to a climate of violence and
conflict throughout the region, making the resolution of the Israeli-Palestinian conflict more
difficult.
On this basis, Algeria calls for urgent and concrete action to ensure respect for international
law and to promote a just and lasting solution to the conflict between Israel and Palestine.
VII. THE LEGAL CONSEQUENCES FOR ALL STATES
AND FOR THE UNITED NATIONS
The last question raised in the General Assembly’s request concerns the legal consequences
of the policies and practices of Israel for all States and the United Nations. Although this question
was not explicitly raised in 2003, Algeria considers that it was implied, since the General Assembly
requested the Court to determine “the legal consequences arising from the construction of the wall”,
without further elaboration.
Algeria has already underscored the differences between the two resolutions. The first, which
essentially concerned the construction of the wall, was characterized by its brevity, whereas the
second relates to Israeli policies and practices which violate the foundations of the international legal
order itself. As regards the legal consequences for States, the most recent resolution of
December 2022 was inspired by the Advisory Opinion of 2004.
In paragraph 148 of that Opinion, the Court stated that it “will now examine the legal
consequences resulting from the violations of international law by Israel by distinguishing between,
on the one hand, those arising for Israel and, on the other, those arising for other States and, where
appropriate, for the United Nations. The Court will begin by examining the legal consequences of
those violations for Israel”. Algeria will adopt this same approach below.
Algeria will thus respond to the last question in the request by examining in turn the legal
consequences for Israel (VII.1), for other States (VII.2) and for the United Nations (VII.3).
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VII.1 The legal consequences for Israel
Algeria will address two points: Israel’s responsibility for ongoing, gross violations of
peremptory rules of international law (VII.1.1) and its obligation of reparation (VII.1.2).
VII.1.1 Israel’s responsibility is engaged for violations of peremptory norms of international
law
In Algeria’s view, it is essential to recall the conclusions reached by the Court in 2004. This is
especially necessary given that the 2022 request frequently refers to the 2004 Opinion and expressly
asks the Court to take it into account (VII.1.1.1). Algeria would also respectfully draw the Court’s
attention to the provisions of the ILC’s Draft Articles on State Responsibility which are of relevance
to Palestine (VII.1.1.2).
VII.1.1.1 The Court’s conclusions in its 2004 Advisory Opinion
Before recalling the three operative provisions relating to Israel’s responsibility, Algeria will
summarize the main points of the analysis that led the Court to make these determinations.
Having examined the positions taken by States in their statements, the Court set out its own
reasoning. A number of States, including Algeria, supported the idea that Israel should be called upon
to end the construction of the wall. This is discussed in paragraphs 149 to 153 [of the 2004 Advisory
Opinion], where the Court identified all the violations of international obligations entailed by the
construction of the wall. Algeria would briefly summarize them as relating to the failure to respect
the Palestinian people’s right to self-determination, and to international humanitarian law and
international human rights law.
They also concern the cessation of construction and the dismantling of the wall. The Court
further noted that Israel’s obligation to make reparation relates to “the damage caused to all the
natural or legal persons concerned” (p. 198, para. 152).
This obligation of reparation goes hand in hand with the obligation to “return the land,
orchards, olive groves and other immovable property” (p. 198, para. 153).
The three relevant operative provisions are formulated by the Court in the following terms:
“A. . . . The construction of the wall being built by Israel, the occupying Power,
in the Occupied Palestinian Territory, including in and around East Jerusalem, and its
associated régime, are contrary to international law; . . .
B. . . . Israel is under an obligation to terminate its breaches of international law;
it is under an obligation to cease forthwith the works of construction of the wall being
built in the Occupied Palestinian Territory, including in and around East Jerusalem, to
dismantle forthwith the structure therein situated, and to repeal or render ineffective
forthwith all legislative and regulatory acts relating thereto, in accordance with
paragraph 151 of this Opinion; . . .
C. . . . Israel is under an obligation to make reparation for all damage caused by
the construction of the wall in the Occupied Palestinian Territory, including in and
around East Jerusalem”.
To conclude on this point, Algeria would underscore the decisive role played by the Advisory
Opinion of 9 July 2004 in denouncing Israel’s trivialization of lawlessness. It constitutes a
particularly important contribution to the question of the cessation of unlawful acts as an integral part
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of Israel’s international responsibility. Indeed, it must be noted that it was in this Opinion that the
Court first formulated the principle that a State which is responsible for committing an ongoing
internationally wrongful act is under an obligation to put an end to that act. Algeria draws special
attention to the Court’s conclusion regarding the international responsibility incurred by Israel.
Without referring to them expressly, the Court was heavily inspired by the general rules of customary
international law enshrined in the Draft Articles on Responsibility of States for Internationally
Wrongful Acts.
VII.1.1.2 The International Law Commission’s 2001 Draft Articles on State Responsibility
The Draft Articles, regarded by international courts and legal writers alike as reflecting
customary international law in this area, contain a detailed examination of the question of State
responsibility for wrongful acts.
In Algeria’s view, it is essential to mention the provisions of the Draft Articles that are of the
most relevance to the decades-long treatment of the Palestinian people by the Israeli authorities. It
would point out that the Draft Articles distinguish between the “general principles” governing the
international responsibility of States contained in Chapter I, and the “serious breaches . . . of
obligations . . . owed to the international community” provided for in Chapter III. These two types
of provisions apply to the policies and practices of Israel in the Occupied Palestinian Territory,
including Jerusalem.
With regard to Chapter I, Algeria would place particular emphasis on Articles 29 and 30,
which are fully applicable to the current situation in Palestinian territory and provide a response to
the last question in the General Assembly’s request. According to Article 29, entitled “Continued
duty of performance”, “[t]he legal consequences of an internationally wrongful act under this Part
do not affect the continued duty of the responsible State to perform the obligation breached”.
Article 30 of the Draft Articles, entitled “Cessation and non-repetition”, provides that “[t]he
State responsible for the internationally wrongful act is under an obligation: (a) to cease that act, if
it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances
so require”.
As for Chapter III, Algeria notes the relevance of Article 41 with regard to the present situation
in Palestine. It deals with situations involving serious breaches of obligations owed to the
international community. That is clearly the case in Palestine. In addition, Algeria would recall that
the Advisory Opinion on the construction of a wall characterized the right of peoples to
self-determination as a “right erga omnes”.
VII.1.2 Israel is under an obligation to make reparation
Algeria considers that Israel has an obligation to make full reparation for all the damage caused
by its many wrongful acts. As stated by the Court in paragraph 152 of its Advisory Opinion on the
construction of a wall, “the essential forms of reparation [in international law and] in customary law
were laid down by the Permanent Court of International Justice” in its 1928 Judgment in the case
concerning Factory at Chorzów. According to that decision, “[t]he essential principle contained in
the actual notion of an illegal act . . . is that reparation must, as far as possible, wipe out all the
consequences of the illegal act and reestablish the situation which would, in all probability, have
existed if that act had not been committed”.
This idea is reflected in Article 31 of the ILC’s above-mentioned Draft Articles, entitled
“Reparation”. According to the first paragraph of that article, “[t]he responsible State is under an
obligation to make full reparation for the injury caused by the internationally wrongful act”. The
- 47 -
second paragraph defines injury as including “any damage, whether material or moral, caused by the
internationally wrongful act of a State”.
Following on from that provision, Chapter II of Part Two of the Draft Articles addresses
“forms of reparation”. Algeria considers that Articles [34], 35 and 36 fully apply to Israel’s policies
and practices in the Occupied Palestinian Territory.
Article [34], whose title is notably “Forms of reparation”, provides that “[f]ull reparation for
the injury caused by the internationally wrongful act shall take the form of restitution, compensation
and satisfaction”. With regard to “restitution”, and pursuant to Article [35], “[a] State responsible for
an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the
situation which existed before the wrongful act was committed”.
Article [36] covers situations where damage is not made good by restitution, inter alia because
it is materially impossible to do so. In such instances, the first paragraph of this Article [36] specifies
that “[t]he State responsible for an internationally wrongful act is under an obligation to compensate
for the damage caused”. The second paragraph adds that “[t]he compensation shall cover any
financially assessable damage”.
VII.2 The legal consequences for other States
On this point, Algeria would recall the analyses and conclusions presented by the Court in its
2004 Advisory Opinion, which Algeria fully endorses.
With regard to its analyses, in paragraph 159, the Court mentions several obligations that must
be upheld by States. They are, in sequence, the obligation not to recognize the illegal situation
resulting from the construction of the wall, the obligation not to render aid or assistance in
maintaining the situation thus created, and the obligation to see to it that any impediment to the
exercise by the Palestinian people of its right to self-determination is brought to an end. The Court
further specifies that States are under an obligation to ensure compliance with international
humanitarian law, making an explicit reference to the Fourth Geneva Convention.
The conclusions of the Court are set out in point D of the operative paragraph, according to
which “[a]ll States are under an obligation not to recognize the illegal situation resulting from the
construction of the wall and not to render aid or assistance in maintaining the situation created by
such construction”.
Last but not least, Algeria moreover wishes to call attention to the importance and relevance
of paragraph 2 of [the commentary to Article 28] of the Draft Articles on State Responsibility, which
concerns “other States” in the event of serious breaches by a State of obligations owed to the
international community as a whole, to use the language of the Draft Articles. One need only read
this passage to be fully convinced of the importance of its content with regard to Palestine.
According to the paragraph in question, the breach of such an obligation gives rise to
obligations for all other States:
(a) “not to recognize as lawful the situation created by the breach”;
(b) “not to render aid or assistance to the responsible State in maintaining the situation so created”;
and
(c) “to cooperate [as far as possible] to bring the breach to an end”.
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Algeria considers that all these obligations must be confirmed by the Court, mutatis mutandis,
in respect of the continuing policies and practices of Israel in the Occupied Palestinian Territory,
including East Jerusalem.
VII.3 The legal consequences for the United Nations
In paragraph 160 of its Advisory Opinion of 9 July 2004, the Court stated that it was “of the
view that the United Nations, and especially the General Assembly and the Security Council, should
consider what further action is required to bring to an end the illegal situation resulting from the
construction of the wall and the associated régime, taking due account of the present Advisory
Opinion”.
Algeria fully endorses the Court’s analysis, noting that, in the present case, it is the policies
and practices of Israel that are at issue. In other words, it is for the United Nations bodies concerned
and involved to give thought to the means by which effect could be given to all the conclusions and
recommendations previously made, as well as to new ways of putting an end to all the ongoing
breaches of international law in its many facets.
In view of the foregoing, Algeria draws the following two main conclusions.
First, it considers that the ICJ has jurisdiction to reply to the request of the United Nations
General Assembly. Second, it respectfully requests the Court to declare unlawful the policies and
practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.
These policies and practices are the very antithesis of the most fundamental rules of
international law, namely those which are peremptory or erga omnes.
CONCLUSION
Motivated by a deep and sincere attachment to the principles of the rule of law in international
relations, the peaceful settlement of international disputes, and decolonization, which are firmly
anchored in the law and practice of the United Nations, Algeria voted in favour of
resolution A/RES/77/247, which was adopted by the United Nations General Assembly on
30 December 2022.
In Algeria’s opinion, the consequences of Israel’s policies in the Occupied Palestinian
Territory, including East Jerusalem, fall into various categories. The first concerns the engagement
of Israel’s international responsibility and its obligation to put an end to the wrongful acts in question.
The second relates to its obligation to make reparation, in the form of restitution and
compensation as required by international law, for the damage caused by its serious and systematic
breaches of essential obligations owed to the international community.
(Signed) Ahmed ATTAF,
Minister for Foreign Affairs and the National
Community Abroad of the People’s
Democratic Republic of Algeria.
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