Written comments of Jordan

INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND PRACTICES OF
ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY, INCLUDING EAST
JERUSALEM
(REQUEST FOR ADVISORY OPINION)
WRITTEN COMMENTS OF THE HASHEMITE KINGDOM OF JORDAN
25 OCTOBER 2023

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TABLE OF CONTENTS
Introduction………………………………………………………………………………1
Section I: The Court Should Answer the Questions Asked by the General Assembly….3
Section II: The Advisory Opinion and the Negotiating Framework…………………….11
Section III: Question (a)………………………………………………………………...19
Section IV: Question (b)………………………………………………………………...31
Conclusions……………………………………………………………………………..37
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1
INTRODUCTION
1. The present Written Comments consider the Written Statements of other States and
international organizations participating in the advisory proceedings, and address some of the
issues raised therein.
2. The Hashemite Kingdom of Jordan (‘Jordan’) reaffirms all that is said in its Written
Statement of 25 July 2023. The fact that Jordan does not comment on all that others have said
does not mean that it necessarily agrees. Only selective points are addressed below.
3. These Written Comments are divided into four sections. Section I responds to the small
number of States which have argued that the Court should exercise its discretion so as not to
respond to the questions put by the General Assembly, or should do so only to a limited extent.
Jordan notes that no State has questioned the jurisdiction of the Court.
4. Some States, while not arguing that the Court should exercise its discretion and decline
to answer the questions, suggest nonetheless that the Court ought to be cautious and not render
an opinion that may be detrimental to the negotiating framework between Palestine, Israel and
other interested parties. Section II addresses this suggestion.
5. Section III addresses Question (a), on which most of the Written Statements have
arrived at similar conclusions.
6. Section IV comments on the responses of certain States to Question (b).
7. The Written Comments end with Jordan’s Conclusions, which remain unchanged from
the Written Statement.
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3
SECTION I
THE COURT SHOULD ANSWER THE QUESTIONS ASKED BY THE GENERAL
ASSEMBLY
8. As explained in Jordan’s Written Statement, the Court has jurisdiction to give the
advisory opinion requested by the General Assembly in its resolution 77/247 and there are no
compelling reasons to decline to do so1. The Court should thus answer the questions asked by
the General Assembly, in line with its constant position that answering a request for an advisory
opinion “represents its participation in the activities of the [United Nations] Organization, and,
in principle, should not be refused”2.
9. None of the 57 statements filed with the Court maintains that the Court lacks
jurisdiction. This section will address the arguments raised by a few States which have argued
that the Court should nevertheless refrain from exercising its jurisdiction and decline to answer
the questions asked by the General Assembly. Jordan stresses at the outset that none of the
reasons invoked would justify a refusal to answer the questions asked by the General Assembly.
10. First, it has been advanced that the questions contained in the request are formulated in
a biased manner, as they “point a finger at one side only” and “ignore compelling evidence of
ongoing official Palestinian incitement to violence against Jews and Israelis”3. It is also argued
that “answering will entail assessing [one] State’s conduct devoided (sic) of the greater whole,
which includes reasons – particularly actions from the other party to the underlying dispute –
that have motivated many of the said acts, legislation, policies and practices without analysing
the conduct of the other party”4. Furthermore, it is suggested that “the Court cannot be
confident that it would have a complete or accurate evidential picture before it”; that answering
1 Written Statement of Jordan, Part One, paras. 2.1-2.17.
2 See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019, p. 113, para. 65, referring to Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71; Difference Relating to Immunity from Legal
Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, pp.
78-79, para. 29; Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 416, para. 30; and Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 156, para. 44.
3 Written Statement of Israel, pp. 1-2. See also Written Statement of the United Kingdom, para. 76.2; Written
Statement of the United States, para. 3.13.
4 Written Statement of Guatemala, para. 38. See also Written Statement of the United Kingdom, para. 67.1.
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the questions posed “would require the Court to embark on a fact-finding mission … to which
the Court is unsuited in the exercise of its advisory function”; and that “the Court would risk
the integrity of its judicial function if it were to proceed without Israel’s full participation”5.
11. None of these arguments should be upheld by the Court6. First of all, many of the facts
are undisputed: there is no denying, for instance, that Israel’s 1980 Basic Law refers to
Jerusalem as the “complete and united” capital of Israel7, nor that its 2018 Basic Law refers to
“the development of Jewish settlement as a national value” and affirms that the State “shall act
to encourage and promote its establishment and consolidation”8.
12. Moreover, the fact that an interested State may choose not to share information it
considers relevant to the analysis of the legal questions asked by the General Assembly cannot
in itself be an obstacle to the Court answering the request. In Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory (the ‘2004 Opinion’), the Court
rejected Israel’s argument that “it would be forced to speculate about essential facts and make
assumptions about arguments of law”, “particularly since Israel alone possesses much of the
necessary information”, which allegedly made it “impossible to clarify” factual issues9.
Instead, the Court made clear that what is decisive in these circumstances is:
“whether the Court has before it sufficient information and evidence to enable it to
arrive at a judicial conclusion upon any disputed questions of facts the determination of
which is necessary for it to give an opinion in conditions compatible with its judicial
character”10.
13. As Jordan and many other participating States have pointed out, there is more than
ample evidence in the record before the Court11, as well as in the public domain, for the Court
5 Written Statement of the United Kingdom, paras. 66.3, 67.1, 68.
6 See, similarly, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, pp. 160-162, paras. 55-58, and pp. 163-164, paras. 63-64.
7 “Basic Law: Jerusalem, Capital of Israel”, 30 July 1980, Article 1.
8 2018 Basic Law: Israel – The Nation State of the Jewish People (available at:
https://m.knesset.gov.il/EN/activity/documents/BasicLawsPDF/BasicLawNationState.pdf, accessed on 5 October
2023).
9 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 161, para. 55.
10 Ibid., p. 161, para. 56, referring to Western Sahara, I.C.J. Reports 1975, pp. 28-29, para. 46.
11 Written Statement of Jordan, Part One, para. 2.11; Written Statement of the African Union, para. 51; Written
Statement of Bangladesh, para. 7; Written Statement of Chile, paras. 25-27; Written Statement of Luxembourg,
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to make an informed assessment of the facts underlying the request. In particular, as the Court
observed in the 2004 Opinion, many documents issued by the Israeli Government on the matter
of Israel’s security concerns are in the public domain12. The present written comments stage
also provides all States and international organizations in possession of relevant information
with an opportunity to present it to the Court.
14. Finally, in response to the concerns expressed by one State about the evidence so far
provided13, it suffices to say that it falls within the Court’s judicial function to assess its
relevance and probative value, a task from which it has never shied away14.
15. Secondly, a few States have suggested that the questions as formulated by the General
Assembly are prejudicial as they assume a violation by Israel of its obligations under
international law15. However, the formulation of the questions adopted by the General
Assembly is in line with the Court’s conclusion, in its 2004 Opinion, that the construction of
the wall by Israel, along with other related measures, “severely impedes the exercise by the
Palestinian people of its right to self-determination, and is therefore a breach of Israel’s
obligation to respect that right”16. It is also in accordance with the Court’s finding that
“occupied settlements in the Palestinian territory have been established in breach of
international law”17, and that for Israel to integrate these settlements and their means of access
and keep the wall in place would create faits accomplis on the ground “tantamount to de facto
annexation”18. Moreover, the questions put to the Court do nothing but acknowledge the
Court’s finding that “from 1967 onwards, Israel took a number of measures aimed at changing
para. 17; Written Statement of Malaysia, para. 19; Written Statement of Namibia, para. 16; Written Statement of
the Russian Federation, para. 24; Written Statement of Saudi Arabia, para. 21; Written Statement of Switzerland,
paras. 18-19.
12 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 162, para. 57.
13 Written Statement of the United Kingdom, para. 67.3.
14 See, for example, Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015, pp. 74 ff, paras. 180, 190-191, 196-197.
15 See in particular Written Statement of Israel, p. 1; Written Statement of Fiji, pp. 5-8; Written Statement of the
United Kingdom, para. 76.1.
16 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 184, para. 122.
17 Ibid., p. 184, para. 120.
18 Ibid., p. 184, para. 121.
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the status of the City of Jerusalem”19 and that Israel took “illegal measures” affecting the
demographic composition of Jerusalem20. Regrettably, these assessments still hold true today;
the current request is not based on unfounded and prejudicial assumptions but rather on clear
earlier findings of breaches of international law by the principal organs of the United Nations,
including the Court itself.
16. In any event, the questions as formulated in the request do not preclude the Court from
reviewing the legality of Israel’s conduct in all relevant aspects21: the Court is always free “to
broaden, interpret and even reformulate the questions” put to it in a request for advisory
opinion22. Jordan notes that none of the participating States or international organizations has
simply “presumed” that Israel has violated its obligations under international law. To the
contrary, they have provided detailed analysis of Israel’s conduct before assessing the legal
consequences of any breach. Jordan itself did so in its Written Statement23.
17. Thirdly, some States have argued that the request is of a contentious nature and have
suggested that Israel’s lack of consent to the Court’s jurisdiction should lead the Court to
decline to exercise its advisory function. The United States, for example, suggests that “the
questions referred in this proceeding implicate the principle of consent to judicial settlement to
a far greater extent than in Construction of a Wall, by inviting the Court to address issues that
form the very subject matter of the dispute”, “including the status of the territory in question”24.
Fiji suggests that “an Advisory Opinion on the legal consequences of the alleged infringements
of international law would go to the very core of [the political and armed conflict between
Israelis and Palestinians] and require the Court to settle law in relation to the whole conflict”25.
The United Kingdom, for its part, maintains that “the advisory procedure offers insufficient
19 Ibid., p. 166, para. 35.
20 Ibid., pp. 183-184, paras. 120, 122.
21 Ibid., p. 154, para. 39.
22 Ibid., p. 154, para. 38. See also Legal Consequences of the Separation of the Chagos Archipelago from
Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 129, para. 35.
23 Written Statement of Jordan, Part One, Chapter 4.
24 Written Statement of the United States, paras. 3.4, 3.19. See also Written Statement of Canada, paras. 13-16.
25 Written Statement of Fiji, p. 4.
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protection to the procedural rights of the parties to the bilateral dispute”, allegedly raising due
process and fairness concerns26.
18. On this point, Article 102, paragraphs 2 and 3, of the Rules of Court make clear that an
advisory opinion may be requested “upon a legal question actually pending between two or
more States”. In such cases, the Court shall “be guided by the provisions of the Statute and of
[the] Rules which apply in contentious cases”, which allows account to be taken of the
particular position of the States concerned in the proceedings27. In any event, as recalled by
Jordan in its Written Statement28 and observed by others29, the fact that the Court may have to
pronounce on legal issues on which divergent views have been expressed does not mean that,
by replying to a request, the Court is dealing with a bilateral dispute requiring the concerned
States’ consent to its jurisdiction30. This has been stated by the Court on several occasions,
including in the 2004 Opinion. The conclusions reached in 2004 are directly applicable to the
current advisory proceedings.
19. In 2004, the Court also considered that the construction of the wall could not be
regarded as only a bilateral matter between Israel and Palestine: in this connection, the Court
highlighted “the powers and responsibilities of the United Nations in questions relating to
international peace and security”; and it referred, based on resolution 57/107 of the General
Assembly, to the United Nation’s “permanent responsibility towards the question of Palestine
until the question is resolved in all its aspects in a satisfactory manner in accordance with
international legitimacy” (emphasis added). The Court further recalled that the responsibility
of the United Nations in the matter “also has its origin in the Mandate and the Partition
Resolution concerning Palestine”. It added that “[w]ithin the institutional framework of the
Organization, this responsibility has been manifested by the adoption of many Security Council
26 Written Statement of the United Kingdom, paras 67.2, 68. On the matter of consent to the Court’s jurisdiction,
see also Written Statement of Guatemala, para. 37-40; Written Statement of Hungary, paras. 9-18; Written
Statement of Israel, p. 4; Written Statement of Zambia, p. 2.
27 The possibility for the Court to “adapt the proceedings” pursuant to Article 102, paragraph 2 of the Rules, was
highlighted, for instance, by South Africa. See Written Statement of South Africa, para. 43.
28 Written Statement of Jordan, Part One, para. 2.14.
29 See, for example, Written Statement of Algeria, pp. 16-17; Written Statement of France, para. 16; Written
Statement of South Africa, paras. 27, 35.
30 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019, p. 118, para. 89.
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and General Assembly resolutions, and by the creation of several subsidiary bodies specifically
established to assist in the realization of the inalienable rights of the Palestinian people”31.
20. The matters submitted to the Court in the current advisory proceedings fall equally
within the responsibilities of the United Nations as defined by the Court. The fact that the
request contains a broader scope of legal questions does not alter the fact that, just as in 2004,
“the object of the request before the Court is to obtain from the Court an opinion which the
General Assembly deems of assistance to it for the proper exercise of its functions. The opinion
is requested on a question which is of particularly acute concern to the United Nations, and one
which is located in a much broader frame of reference than a bilateral dispute”32. As a result,
giving an opinion would not “have the effect of circumventing the principle of consent to
judicial settlement, and the Court accordingly cannot, in the exercise of its discretion, decline
to give an opinion on that ground”33.
21. Finally, a small number of States urge the Court to decline to exercise jurisdiction, or
at a minimum suggest that the Court think twice before answering the questions asked by the
General Assembly, invoking the need for Israel and Palestine to negotiate a peaceful resolution
of the Palestinian question. In particular:
- A few States consider that rendering an advisory opinion might undermine the
chances of success of the negotiation process. This argument is dealt with in
Section II below.
- Some have flagged the importance of negotiations and requested the Court to
render an opinion keeping in mind that the latter should be of added value for Israel
and Palestine in that context34. On this point, Jordan reiterates that it has always
supported peace negotiations between Israel and Palestine, and will continue to do
so after the opinion has been rendered. However, such negotiations must be
31 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, pp. 158-159, para. 49.
32 Ibid, pp. 158-159, paras. 49-50 (emphasis added).
33 Ibid.
34 See, for example, Written Statement of Norway, p. 2.
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meaningful, not merely a formal process35. This point is also addressed in Section
II below.
- A small number of States consider that negotiations constitute the only agreed
framework for Israel and Palestine to resolve their conflict, as set out by the
Security Council and agreed by Israel and Palestine. According to these States, this
constitutes a compelling reason for the Court not to exercise its advisory function36.
This argument is dealt with in the following paragraphs.
22. The Security Council’s active engagement in the situation in the Middle East, including
the Palestinian question, does not prevent the Court from rendering an advisory opinion
answering legal questions related thereto. This was confirmed by the 2004 Opinion. The fact
that the Security Council has laid down certain principles that must apply to the negotiations
between Israel and Palestine, and that a Roadmap for a permanent solution to the Israeli-
Palestinian conflict was adopted endorsing these principles, does not change that. Moreover,
none of the relevant Security Council resolutions, nor any of the agreements entered into by
the parties concerned, exclude the possibility for the Court to render an advisory opinion on
the legal aspects of the matters under negotiation.
23. It is apparent from the principles set forth in Security Council resolution 242 (1967)
that respect for international law must be at the centre of the negotiations between Israel and
Palestine. An advisory opinion clarifying legal issues at the heart of the conflict would thus fit
well with the established negotiating framework.
24. Furthermore, the questions referred by the General Assembly do not require the Court
to set aside the interim allocations of authority and responsibility agreed by Palestine and Israel
in the Oslo Accords. The existing interim agreements remain in effect between the parties,
pending a final status settlement. The exercise by the Court of its jurisdiction would thus not
in any way contravene the negotiating framework existing between the Parties.
35 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 47, para. 85.
36 Written Statement of Canada, paras. 6, 17-20; Written Statement of the Czech Republic, pp. 1-2; Written
Statement of Israel, pp. 3-5; Written Statement of Fiji, pp. 4-6; Written Statement of Hungary, paras. 20-30;
Written Statement of Nauru, paras. 3, 5-19; Written Statement of the United Kingdom, paras. 69-72.
10
25. In conclusion, there are no compelling reasons for the Court not to exercise its
jurisdiction. On the contrary, Jordan agrees with the States that insisted on the necessity of an
advisory opinion of the Court in the present circumstances. Jordan agrees, in particular, that
the Court should “provide its authoritative clarification of the legal issues to the General
Assembly” as “there will be no just – and therefore lasting – solution to the Israeli-Palestinian
conflict without respect for international law”37.
37 Written Statement of Ireland, para. 58.
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SECTION II
THE RELATIONSHIP BETWEEN THE ADVISORY OPINION AND THE
NEGOTIATING FRAMEWORK
26. As indicated in paragraph 21 above, a few States have suggested in their Written
Statements that an advisory opinion of the Court may risk driving Palestine and Israel even
further away from a negotiated two-State solution. These States do not expressly ask the Court
not to exercise its jurisdiction for this reason; their contention is rather that, in considering the
matters before it, the Court should take account of the existing negotiating framework with a
view to not prejudicing it. The States concerned do not detail how the Court should do this;
they merely highlight their view that a negotiated solution to the Palestinian question is the
only way of resolving the matter and that the Court should be ‘cautious’ in answering the
questions asked by the General Assembly.
27. To the extent that this is a contention aimed at dissuading the Court from fully
addressing the questions asked by the General Assembly, it should be rejected. As explained
in the previous section38, the fact that there is a negotiating framework in place is not a
compelling reason for the Court to decline to exercise its jurisdiction.
28. Jordan has briefly described the negotiations in its Written Statement39. Despite the
present stalemate, Jordan remains a strong supporter of a negotiated solution in accordance
with relevant UN resolutions and the agreements reached by the most directly concerned
parties. At the same time, Jordan is of the firm view that the Israeli-Palestinian conflict must
be brought to an end on the basis of international law. Any broad and unsubstantiated assertion
that clarifying the law may have adverse effects on Israel’s and Palestine’s ability to agree on
a final status settlement should not be countenanced by the Court. International law supports
friendly relations between States and the peaceful settlement of disputes.
29. The United States advances in some detail the position described at paragraph 26 above.
It states that “the questions referred should be understood as a request for advice aimed at
facilitating the General Assembly’s proper role and function within the United Nations for
38 See paras. 21-24 above.
39 Written Statement of Jordan, Part One, paras. 3.20-3.60.
12
promoting a negotiated resolution to the conflict. It is essential that the Court’s opinion advance
that objective”40. It also notes that “the United Nations has been consistent in its support for
the proposition that a comprehensive, just and lasting peace must be the result of direct
negotiations between the parties to the conflict, not one imposed from outside or by one
party”41, adding that “the Israeli and Palestinian sides … have acknowledged the continued
relevance of their prior agreements”42, and that some Member States have voiced concern that
“this referral would damage the prospect of Israeli-Palestinian negotiations in the future”43.
30. A few other States advance similar views, albeit more briefly. Guatemala, for instance,
states that “the final settlement of the Israel-Palestine dispute will only be achieved through
bilateral negotiations”44, and that the Court should “consider[] the … bilateral negotiations
framework and contribute to its prompt implementation”45. Canada suggests that “it is only
through negotiation between the parties that a lasting peace can be achieved”46. The Russian
Federation, for its part, states that the Court’s advisory opinion “will have to be in line with
this framework [Security Council resolution 2334] and contribute to its implementation”47. It
adds that “the Court, whatever advisory opinion it might give, should strive to ensure that the
opinion contributes to the task of creating conditions for successful final status negotiations,
or, at a minimum, that the opinion does not create new obstacles to those negotiations”48. Italy
states that the Court should “consider how to exercise its functions in a manner consistent with
the responsibilities and stated interests of the General Assembly and Security Council, so as to
preserve the parties’ ability to negotiate peace and a two-State solution …”49.The Czech
Republic states that, if the Court decides to render an opinion, “the answers should not be
40 Written Statement of the United States, para. 1.6.
41 Ibid., para. 2.1.
42 Ibid., para. 2.21.
43 Ibid., para. 2.23.
44 Written Statement of Guatemala, para. 29.
45 Ibid., para. 48.
46 Written Statement of Canada, para. 6.
47 Written Statement of the Russian Federation, para. 43. See also paras. 55-56.
48 Ibid., para. 59.
49 Written Statement of Italy, para. 5.
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construed as allowing departure from the established legal framework already established for
putting an end to decades of confrontation and violence …”50.
31. These arguments are not new. In its 2004 Opinion, the Court responded to a similar
position noting that “[i]t is not clear … what influence the Court’s opinion might have on those
negotiations: participants in the present proceedings have expressed differing views in this
regard. The Court cannot regard this factor as a compelling reason to decline to exercise its
jurisdiction”51. In the Kosovo advisory opinion, the Court similarly stated that it “cannot – in
particular where there is no basis on which to make such an assessment – substitute its own
view as to whether an opinion would be likely to have an adverse impact”52.
32. The same reasoning applies in this case. Even if the questions on which the Court’s
opinion is sought are broader than those of 2004, the view that the Court’s opinion may have
detrimental effects on the negotiations between Palestine and Israel is speculative. They offer,
in short, “no basis on which to make such an assessment”53.
33. Moreover, as highlighted in Jordan’s Written Statement, negotiations between Israel
and Palestine have not progressed in the past two decades54. An opinion by the Court could
thus only have a positive impact on the conduct of the negotiations. As indicated in its Written
Statement, Jordan’s view is that an opinion by the Court clarifying the law could be useful to
further the negotiations between the parties concerned. International law is without doubt an
important factor to be considered in the course of those negotiations. As the Court stated in the
2004 Opinion:
“The Court has reached the conclusion that the construction of the wall by Israel in the
Occupied Palestinian Territory is contrary to international law and has stated the legal
consequences that are to be drawn from that illegality. The Court considers itself bound
to add that this construction must be placed in a more general context. Since 1947, the
50 Written Statement of the Czech Republic, p. 3.
51 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 160, paras. 52-53.
52 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 418, para. 35. See also Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 237, para. 17.
53 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 418, para. 35.
54Written Statement of Jordan, Part One, paras. 3.20-3.60.
14
year when General Assembly resolution 181 (II) was adopted and the Mandate for
Palestine was terminated, there has been a succession of armed conflicts, acts of
indiscriminate violence and repressive measures on the former mandated territory. The
Court would emphasize that both Israel and Palestine are under an obligation
scrupulously to observe the rules of international humanitarian law, one of the
paramount purposes of which is to protect civilian life. Illegal actions and unilateral
decisions have been taken on all sides, whereas, in the Court’s view, this tragic situation
can be brought to an end only through implementation in good faith of all relevant
Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973). The
‘Roadmap’ approved by Security Council resolution 1515 (2003) represents the most
recent of efforts to initiate negotiations to this end. The Court considers that it has a
duty to draw the attention of the General Assembly, to which the present Opinion is
addressed, to the need for these efforts to be encouraged with a view to achieving as
soon as possible, on the basis of international law, a negotiated solution to the
outstanding problems and the establishment of a Palestinian State, existing side by side
with Israel and its other neighbours, with peace and security for all in the region”55.
34. The Court does not have to decide permanent status issues in order to respond to the
General Assembly’s request. Jordan notes, for example, that Question (b) requires the Court to
determine the status of Israel’s occupation of the Occupied Palestinian Territory, including East
Jerusalem. As explained in Chapter 5 of Jordan’s Written Statement and in Section IV below,
Jordan’s position is that the occupation as such is unlawful, and that consequently Israel must
withdraw from that territory as rapidly as possible. It nevertheless remains open to Palestine
and Israel to reach an agreement on final status issues, and it is vital that they do so in order to
achieve the two-State solution and a just, lasting and comprehensive peace in the region.
35. In short, it does not follow that the advice to be given by the Court to the General
Assembly will have detrimental effects as some States suggest. The rights of the Palestinian
people cannot be withheld because of a negotiating framework that has clearly not borne fruit
to date because of Israel’s lack of good faith and its actions aimed at establishing faits
accomplis, as noted by the Court in 200456, including displacing the Palestinians from their
land and annexing territory de jure or de facto. This is all the more so when, instead of
following the negotiating framework, Israeli authorities are scaling up their actions and
rhetoric, and are showing no sign of wishing to achieve a just, lasting and comprehensive peace.
55 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 201, para. 162 (emphasis added).
56 Ibid., p 184, para 121.
15
36. As highlighted in paragraph 21 above, negotiations cannot merely be a formal process.
Attempts to negotiate must be genuine57 and negotiations must be conducted in good faith, with
each of the parties paying “reasonable regard to the legal rights of the other”58. The Court
stressed that “States must conduct themselves so that the negotiations are meaningful”59, which
will not be the case when either of the parties to the negotiations “insists upon its own position
without contemplating any modification of it”60.
37. Moreover, as stated by the General Assembly in its resolution on “Principles and
guidelines for international negotiations”61, negotiations must be conducted “in accordance
with international law in a manner compatible with and conducive to the achievement of the
stated objective of negotiations”. In this case, the stated objective of the negotiations between
Israel and Palestine, as affirmed in Security Council resolution 242 (1967), is to achieve a just
and lasting peace in the Middle East, which must include, in particular:
- Withdrawal of Israel armed forces from territories occupied in the 1967 conflict;
- Termination of all claims or states of belligerency and respect for and
acknowledgement of the sovereignty, territorial integrity and political
independence of every State in the area and their right to live in peace within secure
and recognized boundaries free from threats or acts of force; and
57 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia
v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, pp. 132-133, paras. 157-159.
58 See in particular UN General Assembly resolution 53/101, 20 January 1999, para. 2(a) (“Negotiations should
be held in good faith”). See also Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J.
Reports 1974, p. 33, para. 78; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment,
I.C.J. Reports 1974, p. 202, para. 69.
59 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v.
Greece), Judgment, I.C.J. Reports 2011, p. 685, para. 132.
60 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 47, para. 85. See also the advisory opinion on
Railway Traffic between Lithuania and Poland, in which the Permanent Court of International Justice stated that
the obligation to negotiate is an obligation “not only to enter into negotiations, but also to pursue them as far as
possible, with a view to concluding agreements” (Railway Traffic between Lithuania and Poland, Advisory
Opinion, 1931, P.C.I.J., Series A/B, No. 42, p. 116). This passage of the PCIJ’s advisory opinion has been relied
on by the Court in several judgments, including: Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
Reports 2011, p. 132, para. 157.
61 UN General Assembly resolution 53/101, 20 January 1999.
16
- The necessity for achieving a just settlement of the refugee problem62.
38. The obligation to implement Security Council resolution 242 (1967) “in all of its parts”
was reaffirmed in Security Council resolution 338 (1973)63 and on many occasions thereafter
including resolution 2334 (2016) of 23 December 2016. In the Declaration of Principles on
Interim Self-Government Arrangements (Oslo I), Israel and the PLO expressly stated that “the
negotiations on the permanent status will lead to the implementation of Security Council
resolutions 242 (1967) and 338 (1973)”64. They reaffirmed this commitment in the Israeli-
Palestinian Interim Agreement on the West Bank and the Gaza Strip (Olso II)65. Jordan notes
that none of the States participating in the current advisory proceedings has questioned the fact
that these resolutions continue to form the basis for the negotiations between Israel and
Palestine.
39. Yet, as highlighted in Jordan’s Written Statement, Israel has consistently refused to
make proposals compatible with the stated objective of the negotiations as defined above66. In
particular:
- Successive Israeli governments have never accepted the premise of a Palestinian
State on the basis of the pre-1967 borders, and all proposals put forward by the
Israeli government since the Oslo Accords have been made on the premise that the
Palestinian negotiators will have to accept the new ‘realities’ of Israeli settlements
built since 196767 ;
- Israeli proposals and negotiating positions have consistently asserted that the whole
of Jerusalem is under Israeli sovereignty. The proposals to return a limited number
62 UN Security Council resolution 242 (1967), 22 November 1967.
63 Security Council resolution 338 (1973), 22 October 1973.
64 See Letter from the Permanent Representatives of the Russian Federation and the United States of America to
the United Nations addressed to the Secretary-General (A/48/486), 8 October 1993, and its Annex “Declaration
of Principles on Interim Self-Government Arrangements”.
65 See Letter from the Permanent Representatives of the Russian Federation and the United States of America to
the United Nations addressed to the Secretary-General, 27 December 1995, and its Annex “Israeli-Palestinian
Interim Agreement on the West Bank and Gaza Strip” (available at: https://www.un.org/unispal/document/autoinsert-
185434/, accessed on 12 July 2023).
66 See Written Statement of Jordan, Part One, paras. 3.20-3.60.
67 Ibid., para. 3.55.
17
of Arab neighborhoods in occupied East Jerusalem to the Palestinian State was
contingent on the Palestinians recognizing Israel’s sovereignty over the vast part
of that territory, on renouncing any sovereignty rights over the Al Haram Al-
Sharif/Al-Aqsa Mosque and on making other major concessions with regard to the
Palestinian people’s rights under international law68;
- No Israeli proposals were made that would acknowledge Israel’s responsibility
under international law for the refugee problem or provide a just solution in
accordance with international law. The rights of return and compensation were
never acknowledged, and all Israeli proposals would have the effect of
undermining the basic rights of the Palestinian refugees vis-à-vis Israel69.
40. In light of the above, Jordan emphatically reiterates that any negotiation between Israel
and Palestine must be conducted in conformity with the parties’ obligation to negotiate in good
faith and in a meaningful manner, with a view to arriving at an agreement within the parameters
set out in Security Council resolution 242 (1967) and expressly accepted by both States.
41. To conclude this section, Palestine and Israel must strive to arrive at a negotiated
solution of their longstanding conflict in accordance with international law, including the
relevant United Nations framework and their bilateral agreements, and in light of this Court’s
advisory opinion. The Court rendering an opinion clarifying certain aspects of the conflict
under international law is not incompatible with that negotiating framework. On the contrary,
an opinion by the Court and the pursuance of negotiations would complement each other. Any
argument suggesting otherwise should be dismissed.
42. In the cases concerning Fisheries Jurisdiction, the Court found that the parties were
under mutual obligations to undertake negotiations in good faith for the equitable solution of
their differences, in relation to which it stated that:
“In the fresh negotiations which are to take place on the basis of the present Judgment,
the Parties will have the benefit of the above appraisal of their respective rights, and of
certain guidelines defining their scope. The task before them will be to conduct their
68 Ibid., para. 3.56.
69 Ibid., para. 3.57. On the denial by Israel of the right of return of the Palestinian people, see for example: Written
Statement of Belize, paras. 57-61.
18
negotiations on the basis that each must in good faith pay reasonable regard to the legal
rights of the other … and having regard to the interests of other States which have
established … rights in the area”70.
A similar conclusion applies to the present proceedings, in which a clarification by the Court
of the legal aspects of the conflict could only benefit further negotiations between the
concerned States.
70 Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 33, para. 78;
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 202,
para. 69.
19
SECTION III
QUESTION (A)
43. Question (a) reads:
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?
44. Jordan responded to this question in Chapter 4 of Part One of its Written Statement, as
well as in Part Two. Chapter 4 of Part One was divided into five sections. The first dealt with
Israel’s ongoing violation of the right of the Palestinian people to self-determination; the
second with Israel’s 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; the third with Israel’s
discriminatory legislation and measures; the fourth with crimes against humanity; and the fifth
with the legal consequences of Israel’s violations of international law.
45. Jordan’s Comments on the Written Statements of others will follow the same five
headings. Jordan notes that the Written Statements of many participants cover the same ground
as Jordan, sometimes in considerable depth, and in a manner that is consistent with that of
Jordan. The Written Statements show that there exists ample evidence for the Court to make
an informed assessment of the situation and fully answer the question asked.
A. Israel’s violation of the right of the Palestinian people to self-determination
46. In its Written Statement, Jordan described Israel’s ongoing violation of the right of
Palestinian people to self-determination, including the right to permanent sovereignty over
natural resources71. Most Written Statements have come to the same conclusions.
71 Written Statement of Jordan, Part One, paras. 4.7-4.25.
20
47. After describing the applicable law, including acceptance of the right to selfdetermination
as a jus cogens norm, Palestine examined the ongoing violation of the right in
its different aspects – territorial integrity, the prohibition of demographic manipulation,
permanent sovereignty over natural resources, and the right to freely determine political status
and pursue economic, social and cultural development. It concluded that while each policy or
practice is sufficient to amount to a serious breach of the right to self-determination,
collectively, “they amount to a manifest, grave, longstanding and ongoing violation …”72.
48. For Ireland, Israel’s “settlement-related policies and practices in the Occupied
Palestinian Territory are wholly inconsistent with the temporary administration of territory in
accordance with the law of military occupation”, the situation of annexation created by the wall
is part of a wider process of annexation of territory, and “is in serious breach of its obligation
to respect the right of the Palestinian people to self-determination”73. Egypt similarly argues
that “the fragmentation and dismemberment of the Occupied Palestinian territories, through
the Israeli settlements policy and the de facto and de jure annexation, is a violation of the
fundamental principle of self-determination” 74. Qatar adds that Israel indefinitely deprives the
Palestinian people of their right to self-determination “[b]y intentionally transferring its
population to the OPT and causing displacement of Palestinians within the OPT” and “[b]y
intentionally engaging in policies that fragment Palestinian territory and dispossess
Palestinians thereof” 75.
49. Chile concentrated on a chronological reading of the reports of the UN Special
Rapporteurs on the situation of human rights in the Palestinian territories occupied since 1967
to show the continuous deterioration in the humanitarian and human rights situation over 29
years. It adopted a position similar to that of Jordan, finding that through its prolonged
occupation and all the measures taken during that time, Israel has deprived the Palestinian
people of “the right to determine their own political status and to be free to pursue their
economic, social, and cultural development without external interference”76. Lebanon added
72 Written Statement of Palestine, para. 5.86.
73 Written Statement of Ireland, paras. 35, 38, 44-45. See also Written Statement of Switzerland, para. 38.
74 Written Statement of Egypt, para. 225. See also paras. 236-237. See also Written Statement of Belize, paras.
21-22; Written Statement of Guyana, paras. 29-31; Written Statement of the United Arab Emirates, paras. 73-74.
75 Written Statement of Qatar, paras. 4.28 and 4.32.
76 Written Statement of Chile, para. 95, and paras. 79-86. See also Written Statement of the Russian Federation,
para. 70.
21
“l’interdiction d’exploiter les ressources naturelles des territoires occupés” to the list of
fundamental rules being violated by Israel77, as Jordan had done78. Algeria, too, considered
that, “[l]a spoliation des richesses naturelles des Palestiniens constitue une partie intégrante de
la politique coloniale israélienne”79.
50. Jordan agrees with the important points that have been developed by others. In
particular, Jordan reiterates its firm denunciation of the “exploitation, endangerment and
depletion of natural resources by Israel … and Israeli settlers” in the Occupied Palestinian
Territory, including East Jerusalem80, and considers that Israel’s practices in this regard are
particularly concerning in relation to water resources, a point emphasized by several
participants81. As pointed out by Palestine, Israel has prohibited Palestinians from accessing
the Jordan River or drawing any of its waters since the occupation began in 1967 and it has
severely restricted their access to all other water resources82. In the West Bank, the entire water
supply system is controlled by the Israeli company Mekorot (owned by the Government of
Israel), which abstracts water from Palestinian lands to transfer it to the settlers83.
51. The Maldives highlighted that “there is a seriously inequitable allocation of water
resources between Palestinians and Israeli settlers within the OPT. As of May 2022, it was
estimated that, while Israeli settlers have access to 320 litres per capita per day, Palestinians in
Areas A and B of the West Bank have access to 75-100 litres per capita per day, and
Palestinians in Area C to 30-50 litres per capita per day. Palestinians are forced to purchase
water from official or private providers at a cost around six times higher than the national
77 Written Statement of Lebanon, para. 38.
78 Written Statement of Jordan, Part One, paras. 4.10-4.11.
79 Written Statement of Algeria, p. 48. See also Written Statement of the Organisation of Islamic Cooperation,
para. 405.
80 ECOSOC resolution 2022/22, 22 July 2022, referred to in Written Statement of Jordan, Part One, para. 4.22.
See also the Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory,
including Jerusalem, and Israel, dated 14 September 2022 (UN Doc. A/77/328), quoted at para. 3.251 of the
Written Statement of Palestine, referring to “the expropriation, looting, plundering and exploitation of land and
vital natural resources” by Israel in the West Bank.
81 See, in particular, Written Statement of Palestine, paras. 4.145-4.153, 5.56-5.57. See also: Written Statement of
Bolivia, p. 10, 16; Written Statement of Cuba, p. 19; Written Statement of Malaysia, para. 52; Written Statement
of the Maldives, paras. 38-41; Written Statement of the African Union, paras. 183-189.
82 Written Statement of Palestine, paras. 3.249-3.256, 4.147. See also Written Statement of the African Union,
para. 188.
83 Written Statement of Palestine, paras. 4.148-4.149. See also Written Statement of the Maldives, para. 41.
22
price”84. Israel’s policies in that regard have been denounced, among others, by the United
Nations High Commissioner for Human Rights85, the United Nations Conference on Trade and
Development (‘UNCTAD’)86 and several non-governmental organizations87.
52. Palestine rightly underscored that Israel has ignored the persistent demands of the
international community to cease its practices in relation to water88. Jordan endorses Palestine’s
statement that:
“Israel’s seizure of fresh water sources in the West Bank – its most precious natural
resources essential to survival – and exploitation of them for its own benefit, and that
of its implanted settler population, jeopardizes water security which is essential for the
sustenance of the Palestinian people and for its economy”89.
It is critical that sovereignty over Palestinian water resources be returned to the Palestinian
people.
53. In this regard, Jordan reiterates that Israel’s unlawful appropriation and exploitation of
the water resources in the Occupied Palestinian Territory is also a clear violation of the rules
on pillage of natural resources in an occupied territory90, the rules on usufruct91 under
international humanitarian law and the rule of sustainable use of natural resources. Such rules
are reflected in the International Law Commission’s principles on the protection of the
84 Written Statement of the Maldives, para. 41(e), referring to the Reports of the Independent International
Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel of 9 May 2022
(UN Doc. A/HRC/50/21) and 14 September 2022 (UN Doc. A/77/328). See also the Written Statement of the
African Union, para. 187.
85 Human Rights Council, ‘Allocation of water resources in the Occupied Palestinian Territory, including East
Jerusalem’ (A/HRC/48/43), 15 October 2021), paras. 31-32.
86 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: The Cost of Restrictions
in Area C Viewed from Above (UNCTAD/GDS/APP/2022/1), p. 7: “Evidence suggest (sic) that the occupying
Power continues to deplete the natural resources, particularly water resources, in the occupied territory to its
advantage and to the detriment of the Palestinian people. The water policy of Israel furthers economic
disadvantages and the expansion of settlements, while depriving the Palestinian economy and agriculture of
critical water resources”.
87 See for example: Amnesty International, ‘The Occupation of Water’, 29 November 2017
(https://tinyurl.com/3pnxac4c).
88 Written Statement of Palestine, para. 3.256.
89 Ibid., para. 5.57.
90 The Hague Regulations, Articles 28 and 47; Fourth Geneva Convention, Article 33, para. 2.
91 The Hague Regulations, Article 55.
23
environment in relation to armed conflicts92. Principle 16 provides that pillage of natural
resources is prohibited. Principle 20 further provides that an occupying power is permitted to
administer and use the natural resources in an occupied territory only for the benefit of the
protected population and for other lawful purposes under the law of armed conflict.
B. Israel’s 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
54. In its Written Statement, Jordan explained that occupation was by definition a
temporary situation, limited by the requirements of military necessity and qualified by
international humanitarian law and international human rights law, including the prohibition of
discrimination on several grounds, including race, which is required both by the Convention
on the Elimination of All Forms of Racial Discrimination (‘CERD’) and by customary
international law.
55. Israel’s occupation, however, is not of a temporary nature. It is evidently intended to be
indefinite, as demonstrated by, inter alia, the policies and practices of settlements and outposts,
exclusive roads, denial of access to land, appropriation and control of natural resources, the
tolerance of settler violence, measures to alter the demographic composition of Palestinian
land, the building of permanent infrastructures, the enactment of Israeli laws with direct
applicability in the West Bank, the transfer of powers of control and governance of the
Occupied Palestinian Territory from military to civil leadership and repeated statements of
‘sovereign intent’ by Israeli government officials. All these facts undeniably amount to
annexation. There is a large convergence in the Written Statements on these matters. Israel’s
intent to annex the Occupied Palestinian Territory is manifest in relation to East Jerusalem,
which Israel’s 1980 Basic Law purported to make part of the “complete and united” capital of
92 Annual Report of the International Law Commission 2022 (A/77/10), Chapter V. See also UN General
Assembly resolution 77/104, 19 December 2022, which took note of and annexed the principles on the protection
of the environment in relation to armed conflicts.
24
Israel93. As highlighted in Jordan’s Written Statement, this purported annexation has been
firmly rejected by the international community94.
56. Also in its Written Statement, Jordan described Israeli attempts to alter the demographic
composition of the Occupied Palestinian Territory, with particular reference to the Holy City
of Jerusalem95. A number of other States have also commented on such measures in similar
terms, recalling the condemnation by the General Assembly and the Security Council.
Palestine96, for example, identified the issue as one of ‘demographic manipulation’97; Qatar
described the restrictions on Palestinian residency in East Jerusalem as a “centrepiece of
Israel’s demographic control policies”98; the United Arab Emirates noted that East Jerusalem
is “inextricably linked to the viability of the two-State solution”99; France considered the fact
of demographic change as part of Israel’s colonisation or annexation policy in the Occupied
Palestinian Territory, particularly East Jerusalem100; Djibouti expressed the view that the
measures to change the demographic composition of East Jerusalem were in violation of
international humanitarian law and international human rights law101; and Switzerland noted
that measures taken by Israel led to “des changements fondamentaux, notamment
démographiques, pouvant endosser un caractère permanent. Elles affectent négativement la
population palestinienne au lieu de lui être bénéfiques et contribuent à la création d’un
environnement coercitif et vont donc à l’encontre des principes du droit de l’occupation”102.
57. Attempts by Israel to change the religious and historical character of Jerusalem were
also denounced by Jordan, which pointed to the destruction of Muslim Holy places and the
severe restrictions on access to Muslim and Christian Holy Places, not just for worshippers but
93 Written Statement of Jordan, Part One, paras. 3.8, 3.13, 4.83. See also Chapter 3, Part A of the Written Statement
of Palestine, on Israel’s annexation of Jerusalem.
94 See Written Statement of Jordan, Part One, paras. 4.87-4.88, referring in particular to Security Council
resolution 478 (1980) of 20 August 1980 and General Assembly resolution 36/120E of 10 December 1981.
95 Written Statement of Jordan, Part One, paras. 4.85–4.94.
96 Written Statement of Palestine, paras. 3.12–3.30, 3.73–3.91, 3.220–3.238.
97 Ibid., paras. 5.2, 5.12–5.14, 5.49–5.54.
98 Written Statement of Qatar, para. 2.45 and passim.
99 Written Statement of the United Arab Emirates, paras. 23-52.
100 Written Statement of France, paras. 52-69, 70-77.
101 Written Statement of Djibouti, paras. 43-49.
102 Written Statement of Switzerland, para. 48.
25
also for authorities vested with responsibility to ensure their maintenance103. Palestine similarly
highlighted Israel’s policies and practices “to promote Jerusalem’s Jewish Israeli character and
undermine its Palestinian, Muslim and Christian character”, denouncing attacks on Muslim
religious sites, restrictions on Muslim and Christian worshippers and archeological excavations
in close vicinity of Muslim and Christian religious sites, contrary to various resolutions by
UNESCO104.
58. Finally, Jordan recalled in its Written Statement that Israel is bound to respect its
obligations as an Occupying Power under international humanitarian law, and obliged to
protect and fulfil the human rights of the Palestinian people, throughout the Occupied
Palestinian Territory, irrespective of the duration of the Occupation. The violation of Israel’s
obligations in that respect was overwhelmingly denounced in the Written Statements. In this
regard, Jordan recalls its position that Gaza remains an integral part of the Occupied Palestinian
Territory since 1967, notwithstanding Israel’s “disengagement” in 2005, as Israel continues to
exercise control over Gaza, particularly at the land crossings, as well as over the airspace and
offshore maritime areas105. This position was expressly endorsed by several States in their
Written Statements106. There can be no doubt that Israel’s obligations under international
human rights law and international humanitarian law apply in Gaza107.
C. Israel’s discriminatory legislation and measures
59. In its Written Statement, Jordan highlighted the various discriminatory measures
introduced by Israel under the guise of military law, and demonstrated their discriminatory
effects across multiple aspects of the daily life of Palestinians subject to occupation. These
effects include the denial of permission to build houses, schools and social infrastructure; the
liability to demolition of so-called unauthorised constructions; the requirement of permits to
103 Written Statement of Jordan, Part Two.
104 Written Statement of Palestine, paras. 3.131-3.143.
105 Written Statement of Jordan, Part One, para. 3.9.
106 See for example: Written Statement of Algeria, pp. 34-35, 37; Written Statement of Belize, paras. 27-30, para.
52 and para. 56(e), referring to Gaza as “the world’s largest prison” and “an integral part of Israel’s policy of
permanent domination and subjugation of the Palestinian people in denial of their fundamental human rights and
right to self-determination”; Written Statement of Bolivia, pp. 10-11; Written Statement of Cuba, p. 7; Written
Statement of Djibouti, paras. 37-39; Written Statement of Palestine, paras. 4.192-4.202.
107 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 178, para. 106.
26
access land and employment; the denial of access to natural resources, particularly water; the
use of the military to repress the political expression of opinion through excessive use of lethal
force; as well as arbitrary ‘administrative’ detention, the targeting of children, and the
obstruction of access to schools, hospitals and health services. In addition, Palestinians now
face extreme settler violence, often tolerated or encouraged by Israeli military forces which
neglect their duty to protect them.
60. Jordan’s Written Statement concentrated on Israel’s obligation not to discriminate
against Palestinians on grounds of race under CERD or other grounds as set forth in the ICCPR,
and it highlighted the issues by reference to the application of military law, the planning regime,
military repression and impunity for settler violence108.
61. The issue of racial discrimination commanded much attention throughout the Written
Statements of States and international organizations, with some characterising the regime
imposed by Israel as amounting to apartheid. Much of Namibia’s Written Statement, for
example, focused on apartheid, which it saw as both defined by the 1973 International
Convention on the Suppression and Punishment of the Crime of Apartheid (‘Apartheid
Convention’), and as informing the scope of Article 3 of CERD. It viewed the various
discriminatory measures adopted by Israel through the lens of apartheid109. Chile referred to
the Special Rapporteur on the situation of human rights in the Palestinian territories occupied
since 1967, who considered that by 2007, “the situation could be described as one of
colonization and apartheid”110. Belize, the Gambia, Indonesia, Lebanon and Qatar argued
similarly111. Djibouti also urged the Court to specifically examine the question whether Israel’s
practices amount to apartheid112.
62. The League of Arab States considered racial discrimination, apartheid and other
violations of human rights more broadly within the “illegality of the conduct of the
108 Written Statement, paras. 4.95-4.141.
109 Written Statement of Namibia, paras. 18-120.
110 Written Statement of Chile, para. 46.
111 Written Statement of Belize, paras. 63-73; Written Statement of the Gambia, paras. 1.9-1.14; Written Statement
of Indonesia, paras. 37-39; Written Statement of Lebanon, paras. 47-52; Written Statement of Qatar, paras. 4.49-
4.108. See also: Written Statement of Kuwait, para. 33.
112 Written Statement of Djibouti, paras. 28-30.
27
occupation”113. Palestine included the prohibition of racial discrimination and apartheid in the
‘applicable law’114, and it then identified in detail Israeli policies and practices that violated
that law, including CERD115. After providing many examples, Palestine concluded that the
“deeply entrenched system of racial discrimination”, with its basis in a dual legal system
applying different laws, is “in fact, indistinguishable from apartheid”116.
63. South Africa referred to an “institutionalised and oppressive system of Israeli
domination”, to the reproduction of various “apartheid-style atrocities”, and to policies that
seek to advance a Jewish nation “whose privilege can only be maintained through the
dispossession and fragmentation of Palestinian land, the economic and political malignment of
Palestinians, restrictions on their movement, the denial of their dignity and absence of legal
protection through arbitrary laws and military orders”117.
D. Crimes against humanity
64. Jordan took note of the definition of crimes against humanity, both in the Statute of the
International Criminal Court and in the recent work of the International Law Commission.
Jordan concluded that crimes against humanity are being committed in the Occupied
Palestinian Territory, including by way of deaths and injuries, administrative detention,
systematic discrimination, and institutionalised impunity, and that Israel had also violated its
obligations to prevent and punish such crimes.
65. Other States have come to a similar conclusion. Palestine, for example, pointed out that
the International Law Commission had noted that some of the most serious wrongful acts are
defined in terms of their composite character and included as examples the obligations
concerning “apartheid or crimes against humanity, systematic acts of racial discrimination” 118,
113 Written Statement of the League of Arab States, paras. 76-91.
114 Written Statement of Palestine, paras. 2.44-2.50.
115 Written Statement of Palestine, paras. 4.7-4.220.
116 Ibid., paras. 4.221-4.253.
117 Written Statement of South Africa, paras. 91, 93, 118. See also Written Statement of the Organisation of Islamic
Cooperation, para. 334; Written Statement of the African Union, para. 193 (noting that Israel’s prolonged
occupation has subjected Palestinians to “alien domination, systematic discrimination, and the denial of their basic
human rights”); Written Statement of Saudi Arabia, para. 29; Written Statement of Syria, para. 20; Written
Statement of Yemen, paras. 34-38.
118 Written Statement of Palestine, paras. 7.35-7.36; 4.221-4.253.
28
which were precisely those described in Chapter 4 of Jordan’s Written Statement. Qatar also
detailed the violations of core international legal norms and concluded that the conduct of the
occupation entailed crimes against humanity, in addition to serious breaches of international
humanitarian law and international human rights law119.
66. As one Written Statement puts it: “Israël exige depuis sa création une sorte
d’exceptionnalité par rapport au droit international qui régit la société mondiale”120 – a view
which is equally applicable to the impunity for acts committed by the military and by settlers,
as it is to all the principles and rules that are potentially the subject of this request for an
advisory opinion.
E. The legal consequences of Israel’s violations of international law
67. Jordan reaffirms that all measures taken in violation of the Palestinian people’s right to
self-determination, including measures taken under Israel law to alter the legal, geographic and
demographic character and status of Jerusalem and of the Occupied Palestinian Territory as a
whole, are null and void and have no legal validity121.
68. Furthermore, Jordan strongly reemphasizes that Israel must put an end to all the policies
and practices which violate: (1) the right of the Palestinian people to self-determination; (2) the
law of military occupation, including the prohibition of establishing settlements and ‘outposts’
and the prohibition of the annexation of occupied territory; (3) the related principle of nonacquisition
of territory by force; (4) the prohibition of all forms of discrimination; (5)
international refugee law; and (6) the obligation not to engage in acts that constitute crimes
against humanity, and to prevent and punish such crimes. In addition, Israel must ensure
freedom of access to the Holy Places that came under its control following the 1967 War and
must not interfere with the authority of the Jordan Awqaf Department in maintaining,
administering and regulating access to the Haram Al-Sharif/Al-Aqsa Mosque122.
119 Written Statement of Qatar, paras. 3.164–3.189.
120 Written Statement of the Organisation of Islamic Cooperation, para. 199.
121 Written Statement of Jordan, Part One, para. 4.178.
122 Written Statement of Jordan, Part One, para. 4.176.
29
69. Israel is also obliged to make full reparation for all injury caused by its internationally
wrongful acts, be it in the form of restitution, compensation or satisfaction, singly or in
combination123. Jordan agrees with the States that have insisted on Israel’s obligation to
compensate Palestine in order to make full reparation for the damage caused by its wrongful
acts, insofar as restitution is materially impossible. Jordan notes in particular that Palestine
referred to the need for compensation for “the losses caused by Israel’s expropriation of the
natural resources of Palestine, including the exploitation of land, water resources and vast
amounts of valuable minerals, the destruction of structures for the management and allocation
of water supply to Palestinians, and the destruction of olive trees and other sources of
livelihood”124. Brazil similarly considers that “it is also important to take into consideration the
rights of the Palestinian people over their natural resources, including land, water and energy
resources when financially assessing compensation” 125. So does Malaysia126. Belize also points
to Israel’s obligation to compensate the damage caused by the exploitation of Palestinian
natural resources, including natural resources within Gaza’s maritime areas127. Jordan concurs
with these statements.
70. Finally, Jordan reiterates its view that the ongoing violation by Israel of its obligations
under international law entails legal consequences for all other States and for the United
Nations128. Jordan refers to its Written Statement, which details these legal consequences129,
and agrees with Djibouti that:
“… la persistance de la partie israélienne à ignorer toutes les injonctions de respecter
ses obligations internationales, qu’elles émanent de cette Cour, du Conseil de sécurité,
de l’Assemblée Générale, du Conseil des droits de l’homme, du Secrétaire général, de
missions d’enquête ou de très nombreux rapports de l’ONU rend particulièrement
cruciale l’attitude de la Communauté internationale, notamment les États et l’ONU afin
d’amener la partie israélienne à se conformer au droit international. Il est dès lors
essentiel que les États tiers remplissent pleinement les obligations que le droit
123 Written Statement of Jordan, Part One, para. 4.177.
124 Written Statement of Palestine, para. 7.68(d).
125 Written Statement of Brazil, para. 56.
126 Written Statement of Malaysia, para. 67.b.
127 Written Statement of Belize, para. 80. On that point, see also Written Statement of Algeria, p. 48, Section VI-
7.
128 Written Statement of Jordan, Part One, para. 4.179.
129 Written Statement of Jordan, Part One, paras. 4.180-4.189.
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international met à leur charge, en cas de violation grave et systématique d’une norme
impérative par un autre État”130.
130 Written Statement of Djibouti, para. 54.
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SECTION IV
QUESTION (B)
71. Question (b) reads:
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?
72. This question addresses two points: the current legal status of the occupation and the
legal consequences that arise from this status. Jordan responded to these points in Chapter 5 of
its Written Statement. It summarized its position as follows:
“The policies and practices of Israel addressed in Chapter 4, which constitute serious
and systematic violations of the right of self-determination, international humanitarian
law and the prohibition of racial discrimination, leave no doubt that the occupation of
the Palestinian territory is as a whole unlawful”131.
“A principal legal consequence arising from the unlawful occupation of the Occupied
Palestinian Territory, including East Jerusalem, is that Israel has an obligation to
withdraw, as rapidly as possible, from the whole of the territory in question. In addition
Israel must make full reparation for its internationally wrongful acts”132.
73. Jordan has the following comments on what others have said on Question (b).
74. In their Written Statements, many States, including Jordan, address the legal
consequences for all States and for the United Nations in terms of the international law of
responsibility. On the question about how the policies and practices of Israel affect the legal
131 Written Statement of Jordan, Part One, para. 5.3.
132 Ibid., para. 5.14.
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status of the occupation, many States conclude that these policies and practices have rendered
the occupation unlawful as a whole133, and that the occupation must be brought to an end134.
75. Palestine considered that “Israel’s occupation of the OPT is itself unlawful, rendering
Israel’s continued presence in the OPT an internationally wrongful act as it seriously breaches
at least three peremptory norms of general international law”135, namely, the inadmissibility of
acquiring territory through the threat or use of force, the prohibition of racial discrimination
and/or apartheid, and the obligation to respect self-determination136. Palestine stresses that
“these violations are not merely the result of the occupation but are rather the foundation upon
which the occupation rests”137. In Saudi Arabia’s view, numerous measures adopted by Israel
not only constitute grave violations of international obligations, but also “systematically and
severely impede” the right of self-determination138.
76. Chile considers the occupation as such to be illegal, because it is perpetuated
intentionally by Israel in order to continue its illegal settlement policy and practices, and is not
justified as a measure necessary for Israel’s protection; and because the settlements policy
shows that occupation is aimed at annexation, while Israel has violated its obligation to act in
133 See, for example, Written Statement of the African Union, para. 90; Written Statement of Algeria, pp. 27-30,
46; Written Statement of Bangladesh, paras. 30-31; Written Statement of Belize, paras. 31-34; Written Statement
of Bolivia, p. 14; Written Statement of Brazil, para. 45; Written Statement of Chile, para. 119; Written Statement
of Djibouti, paras. 5-31; Written Statement of Egypt, paras. 249, 270; Written Statement of the Gambia, paras.
1.8, 1.15, 1.31, 1.32; Written Statement of Guyana, para. 34; Written Statement of Indonesia, paras. 51-60; Written
Statement of Kuwait, para. 27; Written Statement of Lebanon, para. 59; Written Statement of the League of Arab
States, para. 44; Written Statement of Malaysia, para. 62; Written Statement of the Organization of Islamic
Cooperation, para. 405; Written Statement of Qatar, Chapters 4 and 5, and para. 7.1. Written Statement of Saudi
Arabia, para. 31; Written Statement of Senegal, p. 5; Written Statement of South Africa, paras. 95, 119, 140, 158;
Written Statement of Syria, para. 31.
134 See, for example, Written Statement of the African Union, para. 199; Written Statement of Algeria, p. 30;
Written Statement of Bangladesh, paras. 12, 32-33; Written Statement of Bolivia, p. 14; Written Statement of
Brazil, para. 50; Written Statement of Chile, para. 120; Written Statement of Djibouti, para. 53; Written Statement
of Egypt, para. 298; Written Statement of the Gambia, para. 1.33; Written Statement of Guyana, para. 34; Written
Statement of Indonesia, paras. 61-62; Written Statement of Kuwait, paras. 34-35; Written Statement of Lebanon,
paras. 56, 59; Written Statement of the League of Arab States, para. 44; Written Statement of Malaysia, para. 66;
Written Statement of the Maldives, para. 48; Written Statement of Oman, p. 5; Written Statement of the
Organisation or Islamic Cooperation, para. 405; Written Statement of Palestine, paras. 6.19, 7.21-7.26, 7.50, 7.86;
Written Statement of Qatar, para. 4.1; Written Statement of Saudi Arabia, para. 32; Written Statement of South
Africa, para. 143; Written Statement of Syria, paras. 5, 32; Written Statement of Yemen, para. 42.
135 Written Statement of Palestine, para. 6.4.
136 Ibid., para. 6.5. See also Written Statement of Qatar, para. 4.1; Written Statement of Yemen, paras. 39-41.
137 Written Statement of Palestine, para. 6.18.
138 Written Statement of Saudi Arabia, paras. 28, 42-49.
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the best interests of the population under occupation139. Lebanon is of the same view140, while
Algeria considers that the policies and practices of Israel put in question the legal status of the
occupation141. The League of Arab States, for its part, looked at the illegality overall of the
conduct of the occupation142, concluding that while the terms ‘illegal occupation’ and ‘unlawful
occupation’ are ambiguous, they can denote existential illegality (for example, occupation as
denial of self-determination, or occupation for invalid purposes, such as annexation); or they
can refer simply to illegality in the conduct of occupation, such as discrimination on the
grounds of race, or violations of freedom of expression and assembly143. In its view, all acts by
Israel in the Occupied Palestinian Territory lack a valid international legal basis and are an
illegal exercise of authority144. The Organisation of Islamic Cooperation145, Guyana146, the
African Union147, Pakistan148, Gambia149, Malaysia150, Indonesia151, and Djibouti152, are of a
similar view. In its detailed analysis, Qatar argues that Israel’s prolonged occupation – “the
mere existence of the occupation” – is illegal as a whole, because it indefinitely violates selfdetermination,
and because it constitutes a regime of apartheid153.
77. States have thus given various explanations for the conclusion that Israel’s occupation
as a whole is unlawful. The shades of emphasis do not detract from the ultimate conclusion;
indeed they reinforce each other. In essence, the unlawfulness of the occupation is beyond
doubt: by occupying the Occupied Palestinian Territory, including East Jeusalem, indefinitely,
by annexing de jure or de facto large parts of it, and by preventing the Palestinian people from
139 Written Statement of Chile, para. 119.
140 Written Statement of Lebanon, paras. 60-63. See also Written Statement of Spain, para. 8.1.
141 Written Statement of Algeria, p. 52.
142 Written Statement of the League of Arab States, paras. 76-91.
143 Ibid., para. 92.
144 Ibid., paras. 93, 106-108.
145 Written Statement of the Organisation of Islamic Cooperation, para. 405.
146 Written Statement of Guyana, para. 34.
147 Written Statement of the African Union, paras. 90-136.
148 Written Statement of Pakistan, paras. 38-41.
149 Written Statement of the Gambia, paras. 1.5-1.31.
150 Written Statement of Malaysia, paras. 61-62.
151 Written Statement of Indonesia, paras. 51-60.
152 Written Statement of Djibouti, paras. 5-31.
153 Written Statement of Qatar, paras 4.1-4.109.
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exercising their right of self-determination, Israel is in fundamental breach of basic principles
of international law, including the law of occupation.
78. Two specific points raised in the Written Statements merit particular attention.
79. First, in their Written Statements various States, including Jordan, distinguished
between, on the one hand, the illegality of the occupation of the Occupied Palestinian Territory
(the West Bank, including East Jerusalem, and Gaza) ab initio because of Israel’s unlawful use
of force, in contravention of the jus ad bellum, in June 1967; and, on the other hand, the
illegality of the occupation today154. The present request for an advisory opinion does not ask
the Court to deal with the first of these, that is, the legality of the occupation ab initio.
80. Second, in its Written Statement, France suggests that to accept the illegality per se of
an occupation could lead to the inapplicability of the legal regime of occupation, which would
create an unreasonable result155. But this is not so. The law of occupation does not cease to
apply on a finding that Israel’s occupation is unlawful per se. The legal consequence is that the
occupation must be terminated as rapidly as possible. Notwithstanding that the occupation as
a whole is unlawful and must be terminated, so long as the occupation continues in fact, the
Occupied Palestinian Territory remains under the law of occupation. Israel cannot continue its
occupation and, at the same time, relieve itself of its obligations under the applicable law.
81. Switzerland explains the position well, stating that
“Le droit de l’occupation et la légalité de l’occupation sont deux questions distinctes.
L’occupation est une situation qui est régie par le droit international humanitaire alors
que la légalité de celle-ci est régie par la Charte des Nations Unies … Le droit de
l’occupation continue donc de s’appliquer dans le Territoire palestinien
indépendamment de la question de la légalité de l’occupation”156.
Switzerland considers that it would be helpful if the Court were to pronounce on the
consequences in international law that flow from the permanent character of the measures
154 Written Statement of Jordan, Part One, note 327; Written Statement of Palestine, note 1042.
155 Written Statement of France, para. 51.
156 Written Statement of Switzerland, para. 51.
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adopted by Israel, including demographic changes157. As Switzerland puts it, the law of
occupation applies independently of the legality of the occupation158.
82. In Jordan’s view, the continuing applicability of international humanitarian law and
international human rights law is without prejudice to the unlawfulness of the occupation159.
Jordan rejects the United States’ argument that “the second question rests on a faulty premise”
and that the occupation cannot be considered unlawful since “the legal status of the occupation
… results from the fact of occupation alone”160. It does not follow, as France seems to suggest,
that to characterise the occupation as ‘illicite’ would lead to the absurd or unreasonable result
of depriving the civilian population of the protection provided by the legal regime of
occupation161. As noted elsewhere in France’s Written Statement, occupation is a matter of
fact162, and to characterise that fact as unlawful or illegal from the perspective of international
law would not lead to a cessation of protection, the relevant obligations themselves deriving
from the fact of control and authority over territory and inhabitants.
157 Ibid.
158 Ibid.
159 Written Statement of Jordan, Part One, paras. 4.28, 4.40.
160 Written Statement of the United States, paras. 4.2-4.6.
161 Written Statement of France, para. 51: “Le caractère prolongé d’une occupation, s’il est contraire au fait que
celle-ci devrait être provisoire par nature, n’a pas pour conséquence de rendre celle-ci illicite per se. En effet, ce
constat d’illicéité per se pourrait conduire à soutenir l’inapplicabilité du régime juridique de l’occupation. Cela
aboutirait à un résultat, manifestement absurde ou déraisonnable...”.
162 Ibid., paras. 41, 49. In the view of the United States, “the legal status of the occupation under international
humanitarian law results from the fact of occupation alone” (Written Statement of the United States, para. 4.2,
emphasis added). The United States also argued that there was no basis in international law on which to determine
whether the occupation had been rendered unlawful (ibid., para. 4.6). However, that basis would appear to be
established by other relevant juridical ‘facts’, such as annexation or the imposition of a regime of apartheid.
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37
Conclusions
The Hashemite Kingdom of Jordan hereby reaffirms the Conclusions set out in its Written
Statement163:
For the reasons given in Parts One and Two of its Written Statement and in the present Written
Comments, the Hashemite Kingdom of Jordan respectfully requests the Court:
(1) To find that it has jurisdiction to give the advisory opinion requested in General
Assembly resolution 77/247, and to comply with the request;
(2) To answer Question (a) in the following manner:
(a) The policies and practices of Israel in the Occupied Palestinian Territory, including
East Jerusalem, are in violation of the right of the Palestinian people to selfdetermination;
of the law of occupation; of the prohibition of the acquisition of
territory by force; of international human rights law, including the prohibition of
discrimination; of international refugee law; and of other rules of international law,
including those concerning the Holy Places in East Jerusalem and those relating to
the prohibition of crimes against humanity;
(b) The legal consequences arising from these violations for Israel, for third States and
for the United Nations and other international organizations are those provided for
in the international law of responsibility for internationally wrongful acts;
(c) In particular:
(i) Israel is under an obligation to cease its internationally wrongful acts; this
includes the obligation to cease its violations of international law applicable
to the maintenance, preservation and, administration of and freedom of
access to the Holy Places in East Jerusalem;
163 Written Statement of Jordan, Part One, pp. 109-111, repeated in Part Two, pp. 152-155.
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(ii) All measures taken in violation of the Palestinian people’s right to selfdetermination,
including measures taken under Israeli law to alter the legal,
geographic and demographic character and status of Jerusalem and of the
Occupied Palestinian Territory as a whole, are null and void and have no
legal validity;
(iii) Israel is under an obligation to make full reparation for all injury caused by
its internationally wrongful acts;
(iv) All States are under an obligation not to recognize as lawful the situation
created by Israel’s internationally wrongful acts, and not to render aid or
assistance in maintaining that situation;
(v) All States are under an obligation to recognize the right of the Palestinian
people to self-determination, including by exercising that right within a
viable and independent State of Palestine;
(vi) All States are under an obligation to cooperate, including with the United
Nations, to bring to an end Israel’s internationally wrongful acts;
(vii) The United Nations, and especially the General Assembly and the Security
Council, should consider what further action is required to bring to an end
Israel’s internationally wrongful acts, taking due account of the Advisory
Opinion;
(3) To answer Question (b) in the following manner:
(a) The occupation by Israel of the Occupied Palestinian Territory, including East
Jerusalem, is unlawful;
(b) Israel is under an obligation to terminate the occupation as rapidly as possible;
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(c) All States are under an obligation not to recognize the illegal situation resulting
from the illegal occupation of the Occupied Palestinian Territory, including East
Jerusalem, and not to render aid or assistance in maintaining the situation created
by the occupation;
(d) All States parties to the Fourth Geneva Convention relative to the Protection of
Civilian Persons in Time of War of 12 August 1949 have in addition the obligation,
while respecting the United Nations Charter and international law, to ensure
compliance by Israel with international humanitarian law as embodied in that
Convention;
(e) 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 occupation, taking due account of the Advisory Opinion.
Dr. Ahmad Ziadat
Minister of Justice
Representative of the Hashemite Kingdom of Jordan
25 October 2023
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