VOLUME I
24 July 2023
INTERNATIONAL COURT OF JUSTICE
REQUEST FOR AN ADVISORY OPINION BY THE UNITED NATIONS
GENERAL ASSEMBLY IN RESOLUTION 77/247 OF 30 DECEMBER 2022
PERTAINING TO THE QUESTION OF PALESTINE
WRITTEN STATEMENT OF THE STATE OF PALESTINE
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TABLE OF CONTENTS
CHAPTER 1.
INTRODUCTION ................................................................................................. 1
I. Terms of the Request and History of the Proceedings ..................................... 1
II. The Historical and Legal Context in Which the Request Arises ..................... 2
A. Palestine under the Ottoman Empire and the British Mandate .................. 2
B. The War of 1967 and the Israeli Occupation of the Remainder
of Palestine (The West Bank, including East Jerusalem, and
the Gaza Strip) ........................................................................................... 8
C. The Wall Opinion..................................................................................... 11
D. Developments Since the Wall Opinion .................................................... 14
E. The General Assembly’s Current Request for an Advisory Opinion ...... 16
III. Jurisdiction of the Court ................................................................................ 18
IV. Structure of this Written Statement ............................................................... 20
CHAPTER 2.
APPLICABLE LAW ........................................................................................... 25
I. Applicable Rules of International Humanitarian Law and International
Human Rights Law ........................................................................................ 25
A. International Humanitarian Law .............................................................. 25
B. International Human Rights Law ............................................................. 28
II. Peremptory Norms of General International Law Applicable to these
Proceedings .................................................................................................... 30
A. The Inadmissibility of Territorial Acquisition by Threat or
Use of Force ............................................................................................. 31
B. The Prohibition Against Racial Discrimination and Apartheid ............... 39
C. The Obligation to Respect the Right of Self-Determination ................... 41
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CHAPTER 3.
ISRAEL’S ANNEXATION OF PALESTINIAN TERRITORY ..................... 47
PART A.
ISRAEL’S ANNEXATION OF JERUSALEM AND CHANGES TO ITS DEMOGRAPHIC
COMPOSITION, CHARACTER AND STATUS ............................................................... 53
I. Israel’s Laws, Regulations and Administrative Orders Annexing and
Asserting “Sovereignty” over Jerusalem ....................................................... 57
A. The Special Character and Status of Jerusalem ....................................... 57
B. Israel’s Laws and Other Measures Annexing West Jerusalem ................ 59
C. Israel’s Laws and Other Measures Annexing East Jerusalem ................. 60
D. Israel’s Enactment of Laws Declaring Jerusalem To Be Its “Complete
and United” Capital ................................................................................. 69
II. Declarations by Senior Israeli Government Officials Asserting Israel’s
“Sovereignty” over Jerusalem ....................................................................... 74
III. Israel’s Construction of Settlements in, and Displacement of Palestinians
from, East Jerusalem and its Environs ........................................................... 77
A. Construction of Settlements ..................................................................... 77
1. Israel’s Illegal Construction of Settlements in East Jerusalem .......... 77
2. Israel’s Persistent Defiance of Demands to Cease the Illegal
Construction of Settlements in East Jerusalem .................................. 89
B. Displacement of Palestinians ................................................................... 93
1. The Demolition of Palestinian Homes ............................................... 94
2. The Forcible Displacement of Palestinians by Israeli Settlers .......... 95
3. Denial of Building Permits for Palestinians ...................................... 96
4. Revocation of Residency Status ........................................................ 97
5. Settler Violence Towards Palestinians .............................................. 99
IV. Israel’s Construction and Use of Infrastructure to Bind East and West
Jerusalem Together ........................................................................................ 99
A. Use of Infrastructure To Bind East and West Jerusalem Together ........ 100
B. The Separation of East Jerusalem from the Rest of the West Bank ...... 101
V. Israel’s Measures to Change the Religious and Historical Character of the
Holy City of Jerusalem ................................................................................ 105
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Conclusion ................................................................................................... 109
PART B.
ISRAEL’S ANNEXATION OF THE WEST BANK ........................................................ 111
I. Israel’s Extension of its Laws, Administrative Orders and Jurisdiction to
the West Bank .............................................................................................. 121
A. Legislation Extending and Applying Israeli Law to the West Bank ..... 122
B. Orders Promulgated by the Military Commander ................................. 125
C. Assumption of Direct Administrative Power over the West Bank by
Israel’s Government ............................................................................... 125
II. Declarations by Senior Israeli Government Officials Asserting Israel’s
“Sovereignty” over the West Bank .............................................................. 128
III. Israel’s Establishment of Hundreds of Israeli Settlements in the West Bank
and its Displacement of Palestinians ........................................................... 132
A. Israel’s Construction of Settlements and Implantation of Hundreds of
Thousands of Israeli Settlers in the West Bank ..................................... 132
B. Displacement and confinement of Palestinians in the West Bank ......... 145
1. Demolition of Palestinian homes ..................................................... 147
2. Violence against Palestinians ........................................................... 151
IV. Israel’s Construction and Control of Infrastructure and its Exploitation of
Natural Resources in the West Bank ........................................................... 152
A. Construction and Control of Highways and Roads ............................... 153
B. Exploitation of Water and Other Natural Resources ............................. 156
Conclusion ................................................................................................... 159
CHAPTER 4.
ISRAEL’S VIOLATION OF THE PROHIBITION OF RACIAL
DISCRIMINATION AND APARTHEID ....................................................... 161
I. Racial Discrimination against the Palestinian People in the Occupied
Palestinian Territory and Denial of their Fundamental Rights .................... 162
A. Israel’s Discriminatory Dual Legal System ........................................... 166
1. The Discriminatory Israeli Military Court System .......................... 168
2. The Discriminatory Israeli Military Court System Is Not Permitted
Under International Humanitarian Law ........................................... 170
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3. In Any Case, the Preconditions of Article 66 of the Fourth Geneva
Convention Are Not Met ................................................................. 171
B. Arbitrary Arrest and Detention of Palestinians, Including Children ..... 172
C. Israel’s Torture and Other Cruel, Degrading and Inhuman Treatment of
Palestinian Detainees ............................................................................. 178
D. Israel’s Unlawful Use of Force Against Palestinian Civilians .............. 184
E. Israel’s Discrimination against Palestinians by Denial of
Freedom of Movement........................................................................... 194
F. Israel’s Discrimination Against Palestinians in Respect of the
Right to Marriage and Choice of Spouse ............................................... 203
G. Israel’s Discrimination Against Palestinians in Respect of
Freedom of Religion .............................................................................. 207
H. Israel’s Discriminatory Land Distribution and Planning Regime
in the OPT .............................................................................................. 209
I. Discriminatory Access to, and Restrictions on Use of Natural
Resources in the OPT ............................................................................ 216
J. Israel’s Racial Discrimination as to Social and Economic Rights:
Labour, Education and Health ............................................................... 220
1. Labour Rights .................................................................................. 220
2. Access to Education ......................................................................... 222
3. Access to Health .............................................................................. 224
K. Israel’s Discriminatory Infliction of Collective Punishment on
Palestinians ............................................................................................ 226
1. Demolitions of Palestinian Homes and Other Properties ................ 227
2. Settler Violence against the Palestinian Population ........................ 231
3. The Blockade of Gaza ...................................................................... 235
II. Racial Discrimination Against Palestinian Citizens of Israel ...................... 241
A. Discriminatory Restrictions on the Right to Nationality and the Right to
Reside in Israel....................................................................................... 243
B. Nation State Law of 2018 ...................................................................... 245
C. Discrimination with Respect to Land and Housing ............................... 246
Conclusion ................................................................................................... 247
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III. Israel’s Racial Discrimination Against the Palestinian People
Amounts to Apartheid .................................................................................. 249
A. Defining Apartheid ................................................................................ 255
B. Israel’s Racial Discrimination Against the Palestinian People
Amounts to Apartheid ............................................................................ 256
1. Two Racial Groups .......................................................................... 256
2. An Institutionalized Regime of Systematic Oppression and
Domination by One Racial Group Over Another ............................ 257
3. The Commission of Inhumane Acts ................................................ 259
4. Intention/Purpose of Maintaining the Regime ................................. 259
Conclusion ............................................................................................. 260
CHAPTER 5.
ONGOING VIOLATION BY ISRAEL OF THE RIGHT OF
THE PALESTINIAN PEOPLE TO SELF-DETERMINATION ................. 263
I. The Content of the Right of Self-Determination ......................................... 264
A. The Right to Territorial Integrity ........................................................... 265
B. The Prohibition on Demographic Manipulation .................................... 266
C. The Right to Permanent Sovereignty over Natural Resources .............. 267
D. The Right To Freely Determine Their Political Status and
Freely Pursue Economic, Social and Cultural Development ................. 268
II. The Right to Self-Determination of the Palestinian People ......................... 269
III. Israel’s Denial of, and Ongoing Refusal to Recognize, the Right of
the Palestinian People to Self-Determination .............................................. 281
A. Violation of Territorial Integrity ............................................................ 282
B. Demographic Manipulation ................................................................... 284
1. Transfer of Israeli Nationals to the OPT .......................................... 284
2. Expulsion of Palestinians ................................................................. 285
C. Denial of Sovereignty over Natural Resources ...................................... 287
D. Denial of Civil, Political, Economic, Social and Cultural Rights ......... 290
Conclusion ................................................................................................... 300
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CHAPTER 6.
THE UNLAWFULNESS OF ISRAEL’S OCCUPATION OF
THE PALESTINIAN TERRITORY ............................................................... 301
I. Israel’s Occupation of the Palestinian Territory Seriously Breaches
Peremptory Norms of General International Law ....................................... 302
II. Israel’s Occupation of the OPT Is Indistinguishable from Its Serious
Breaches of Peremptory Norms of General International Law ................... 305
CHAPTER 7.
LEGAL CONSEQUENCES ............................................................................. 309
PART A.
ISRAEL’S OBLIGATIONS RESULTING FROM ITS INTERNATIONALLY
WRONGFUL ACTS ................................................................................................. 309
I. Israel is under an Obligation to Cease its Wrongful Conduct and
to Give Assurances and Guarantees of Non-Repetition .............................. 310
A. Obligation of Cessation ......................................................................... 311
1. The Applicable Principles ................................................................ 311
2. Israel’s Duty To Cease its Wrongful Acts ....................................... 313
B. Assurances and Guarantees of Non-Repetition ..................................... 316
II. Israel is under an Obligation to Make Full Reparation ................................ 318
A. Restitution .............................................................................................. 323
B. Compensation ........................................................................................ 327
C. Satisfaction............................................................................................. 331
Conclusions .................................................................................................. 335
PART B.
LEGAL CONSEQUENCES FOR OTHER STATES AND INTERNATIONAL ORGANISATIONS,
INCLUDING THE UNITED NATIONS ........................................................................ 341
I. The Obligation of Non-Recognition ............................................................ 344
A. The Obligation on States........................................................................ 344
B. Obligations for the United Nations ........................................................ 350
II. The Obligation not to Contribute to Violations of the Rights of
the Palestinian People .................................................................................. 351
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III. The Obligation to Cooperate to Protect the Rights of the Palestinian People
and to End Israel’s Violations of Those Rights ........................................... 354
Conclusions .................................................................................................. 362
SUBMISSIONS .................................................................................................. 367
List of Annexes .................................................................................................... 375
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TABLE OF FIGURES
Figure 3.1 Occupied Palestinian Territory ......................................................... 49
Figure 3.2 Jerusalem prior to Israel’s Unilateral Expansion of Jerusalem and
Israel’s Unilateral Expansion of Jerusalem after June 1967 ............. 63
Figure 3.3 Israeli Settlements in East Jerusalem ................................................ 81
Figure 3.4 “Greater” Jerusalem Area ................................................................. 83
Figure 3.5 Israel’s E1 Settlement “Block” and the Division of the West Bank . 87
Figure 3.6 Israel’s Annexation Wall ................................................................ 103
Figure 3.7 The West Bank ................................................................................ 115
Figure 3.8 Israel’s Colonization of the West Bank .......................................... 117
Figure 3.9 Number of Settlers by Year ............................................................ 133
Figure 3.10 West Bank Israeli Settlements as of May 1983 .............................. 139
Figure 4.1 Israeli Control Regime .................................................................... 197
Figure 4.2 Israel’s Blockade of the Gaza Strip ................................................. 237
Figure 5.1 The British Mandate for Palestine .................................................. 275
Figure 5.2 The United Nations Partition Plan for Palestine ............................. 277
Figure 5.3 UN Partition Plan – 1947 and UN Armistice Lines – 1949 ............ 279
Final Figure ......................................................................................................... 373
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WRITTEN STATEMENT OF THE STATE OF PALESTINE
Chapter 1.
INTRODUCTION
1.1. This Written Statement is filed by the State of Palestine in accordance
with the Order of the Court dated 3 February 2023 in response to the United Nations
General Assembly’s request for an Advisory Opinion regarding the question of
Palestine.
1.2. This Introduction recounts the history of the proceedings and terms of the
Request (I), before setting out the historical and legal context in which the Request
arises (II). It then addresses the Court’s jurisdiction to deal with the Request and
the absence of any compelling reasons to refrain from rendering the Advisory
Opinion sought by the General Assembly (III). It concludes by describing the
structure of the remainder of this Written Statement, consisting of Chapters 2
through 7, and one Volume of Annexes (IV).
I. Terms of the Request and History of the Proceedings
1.3. The Request was made by the General Assembly in resolution 77/247 of
30 December 2022. In that resolution, the General Assembly decided, pursuant to
Article 96, paragraph 1, of the United Nations Charter and Article 65 of the Statute
of the Court, to request the International Court of Justice to render an opinion,
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, on the
following 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?
2
(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?”
1.4. As is apparent from the terms of these questions and, in particular, from
the mention at the very beginning of the first question of “the ongoing violation by
Israel of the right of the Palestinian people to self-determination”, although they
deal with matters primarily concerning the Occupied Palestinian Territory,
including East Jerusalem, they go beyond those matters as further detailed in this
Written Statement.
1.5. The Request was transmitted to the Court by the United Nations
Secretary-General in a letter dated 17 January 2023.
1.6. By an Order dated 3 February 2023, the Court fixed 25 July 2023 as the
time-limit within which Written Statements relating to the questions may be
presented to the Court and decided that the State of Palestine may do so. The State
of Palestine submits this Written Statement in accordance with that Order.
II. The Historical and Legal Context in Which the Request Arises
A. PALESTINE UNDER THE OTTOMAN EMPIRE AND THE BRITISH MANDATE
1.7. Palestine is a territory between the Mediterranean Sea and the Jordan
River, at the confluence of three continents, and a land holy for the three
monotheistic religions. It has a rich history that has shaped the identity of its people
and their diversity. The Palestinian people are the product, actors, witnesses and
victims of this history, with a continued presence on the land of Palestine for
millennia. Their roots go as far back as the ancient Canaanites, and their nation was
forged by those who inhabited this land and all those who found their way to its
shores and their descendants.
1.8. In contemporary history, and as noted by the Court in its Advisory
Opinion on the Wall:
“Palestine was part of the Ottoman Empire. At the end of the First World
War, a class ‘A’ Mandate for Palestine was entrusted to Great Britain by the
League of Nations, pursuant to paragraph 4 of Article 22 of the Covenant,
which provided that:
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‘Certain communities, formerly belonging to the Turkish
Empire have reached a stage of development where their existence
as independent nations can be provisionally recognized subject to
the rendering of administrative advice and assistance by a
Mandatory until such time as they are able to stand alone.’
The Court recalls that in its Advisory Opinion on the International Status of
South West Africa, speaking of mandates in general, it observed that ‘The
Mandate was created in the interest of the inhabitants of the territory, and of
humanity in general, as an international institution with an international
object – a sacred trust of civilization.’ … The Court also held in this regard
that ‘two principles were considered to be of paramount importance: the
principle of non-annexation and the principle that the well-being and
development of … peoples [not yet able to govern themselves] form[ed] ‘a
sacred trust of civilization’ …”1.
1.9. The mandate was only to be a “temporary tutelage” until the realization
of sovereignty and independence by the people of Palestine2. However, the Balfour
Declaration issued by Great Britain in 1917, which was incorporated into the
mandate granted to it at the San Remo Conference in April 1920, directly
contradicted the sacred trust to ensure the independence of the people of Palestine.
The Declaration proclaimed:
“His Majesty’s Government view with favour the establishment in Palestine
of a national home for the Jewish people, and will use their best endeavours
to facilitate the achievement of this object, it being clearly understood that
nothing shall be done which may prejudice the civil and religious rights of
existing non-Jewish communities in Palestine or the rights and political
status enjoyed by Jews in any other country.”3
1.10. At its essence, the Balfour Declaration disregarded the national identity
and national rights of the Palestinian people, referring to them vaguely as the “non-
Jewish communities in Palestine”. Instead, it promised “a national home” to others
in the territory specifically designated for the independence of the people of
Palestine. The Declaration’s dismissiveness of the existence and rights of the
Palestinian people as a nation, subject only to the recognition of their “civil and
1 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Reports 2004, p. 165, para. 70 (hereafter: the “Wall Opinion”).
2 Ibid., Separate Opinion of Judge Elaraby, pp. 249-250, para. 2.1.
3 Mandate for Palestine, Interim report of the Mandatory to the League of Nations/ Balfour
Declaration text, 30 July 1921 (https://tinyurl.com/49fntw29).
4
religious rights”, and its contradiction of Britain’s mandated obligation to assist the
Palestinian people to become fully independent, as for every other Class “A”
mandate, amounted to a breach of trust with ramifications on the question of
Palestine to this day.
1.11. Instead of acting to support and facilitate Palestine’s independence, the
Mandatory Power adopted deliberate policies to enforce its Balfour Declaration,
including by actively promoting Jewish immigration to Palestine and acquisition of
land therein4 to the detriment of the Palestinian people and their rights, and despite
their consistent opposition and successive revolts that were met with violent
repression. While Jewish immigration accelerated due to the suffering endured by
Jews in Europe, including as victims of racism and violent pogroms that culminated
with the rise of Nazism and eventually the horrors of the Holocaust, this
immigration was also driven by a political ideology, Zionism, which coveted the
land of Palestine and denied the existence of the Palestinian people, their
longstanding presence and roots in Palestine and their legitimate claim to it.
1.12. By 1947, the British policies and practices to enforce the Balfour
Declaration coupled with the British decision to exit Palestine laid the groundwork
for the adoption of the United Nations Partition Plan, patently at odds with the Class
“A” mandate designation of Palestine and the expressed purpose of the mandate
system to ensure attainment of independence and the articulated will of the
Palestinian people, who were deliberately denied any participation in this process.
As noted by the United Nations Special Committee on Palestine (whose Report of
3 September 1947 formed the basis of the General Assembly’s Partition Plan):
“With regard to the principle of self-determination, although international
recognition was extended to this principle at the end of the First World War
and it was adhered to with regard to the other Arab territories, at the time of
the creation of the ‘A’ Mandates, it was not applied to Palestine, obviously
because of the intention to make possible the creation of the Jewish National
4 In 1920, according to the Interim Report to the League of Nations by the British government,
the population of Palestine was approximately 700,000 people, of which around 480,000 were
Muslims, and 77,000 are Christians, and 76,000 are Jews, “almost all of which had entered Palestine
in the last 40 years”. See Mandate for Palestine, Interim report of the Mandatory to the League of
Nations/ Balfour Declaration text, 30 July 1921 (https://tinyurl.com/49fntw29). By 1947,
Palestinians were over 1,2 million while Jews were over 600,000, according to the UNSCOP report
to the General Assembly (Official Records of the General Assembly, Second session, Suppl. No. 11,
A/364, Vol. I, https://undocs.org/A/364(Supp)).
5
Home there. Actually, it may well be said that the Jewish National Home
and the sui generis Mandate for Palestine run counter to that principle.”5
1.13. The Partition Plan, adopted by the General Assembly in its
resolution 181 (II) of 29 November 1947, allocated over 55 % of the land of
Palestine to the “Jewish State” and around 42 % to the “Arab State”, and stipulated
that “[t]he City of Jerusalem shall be established as a corpus separatum under a
special international regime and shall be administered by the United Nations”.
Under the Plan, the City of Jerusalem included the municipality of Jerusalem at the
time, plus the surrounding villages and towns, including Bethlehem6.
1.14. Concerned about the proposed partition of Palestine, Sub-Committee II
of the Ad Hoc Committee on the Palestinian Question, which was established in
September 1947 by the General Assembly, stressed that:
“the people of Palestine are ripe for self-government and that it has been
agreed on all hands that they should be made independent at the earliest
possible date. It also follows, from what has been said above, that the
General Assembly is not competent to recommend, still less to enforce, any
solution other than the recognition of the independence of Palestine”7.
1.15. Sub-Committee II underlined the necessity to clarify the relevant legal
issues, including, inter alia, “whether it lies within the power of any member or
group of members of the United Nations to implement any of the proposed solutions
without the consent of the people of Palestine.”8
1.16. The Sub-Committee had urged that the matter be submitted for legal
review by the International Court of Justice, as the principal judicial organ of the
United Nations. Yet that appeal went unheeded, leading the Sub-Committee to state
that:
“A refusal to submit this question for the opinion of the International Court
of Justice would amount to a confession that the United Nations are
determined to make recommendations in a certain direction, not because
those recommendations are in accord with the principles of international
5 UNSCOP report to the General Assembly (Official Records of the General Assembly,
Second session, Suppl. No. 11, A/364, Vol. I, https://undocs.org/A/364), p. 35, para. 176.
6 General Assembly, Resolution 181 (II), 29 November 1947.
7 Ad Hoc Committee on the Palestinian Question, Report of Sub-Committee 2, A/AC.14/32
and Add.1, 11 November 1947, para. 18 (https://undocs.org/A/AC.14/32).
8 Ibid., para. 37.
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justice and fairness, but because the majority of the delegates desire to settle
the problem in a certain manner, irrespective of what the merits of the
question, or the legal obligations of the parties, might be. Such an attitude
will not serve to enhance the prestige of the United Nations …”9
1.17. This is particularly relevant as the General Assembly at the time did not
have the universal and representative character it enjoys today following the
decolonization and attainment of independence by the majority of the world’s
countries. Nevertheless, these decisions, actions and proposals determining the fate
of the Palestinian people were made without their consultation and without their
consent, and in flagrant disregard of their fundamental right to self-determination.
1.18. The Partition Plan, whilst a recommendation, was used by the founders
of Israel to further assert their territorial claim and to proclaim in May 1948 the
establishment of a State “on the strength of the resolution of the United Nations
General Assembly”10. During that period, the Palestinian people suffered the Nakba
(Arabic for “catastrophe”), which refers to their ethnic cleansing and dispossession
by Zionist militias and later by Israeli military forces seeking to expand the territory
under Israeli control and to create a clear Jewish majority therein. This resulted in
the forced displacement of two-thirds of the Palestinian population – between
750,000 and 900,000 Palestinians, now numbering with their descendants over 7
million refugees worldwide – who are still awaiting the return to their homeland
more than 75 years later; the destruction of over 500 Palestinian villages; and the
seizure of thousands of homes and properties. By the time an armistice agreement
was concluded in 1949, Israel had seized control of 78 % of historic Palestine, far
more territory than allotted to the “Jewish State” under the Partition Plan, with the
remainder of historic Palestine, namely the West Bank, including East Jerusalem,
and the Gaza Strip, coming under Jordanian and Egyptian administration
respectively, in accordance with the 1949 Armistice Agreement, and along the
armistice line, referred to as the “Green Line”.
1.19. In December 1948, the General Assembly adopted resolution 194 (III),
in which the Assembly:
“[r]esolve[d] that, in view of its association with three world religions, the
Jerusalem area, including the present municipality of Jerusalem plus the
surrounding villages and towns … should be accorded special and separate
9 Ad Hoc Committee on the Palestinian Question, Report of Sub-Committee 2, A/AC.14/32
and Add.1, 11 November 1947, para. 40 (https://undocs.org/A/AC.14/32).
10 For the text of the Declaration, see the Knesset website at https://tinyurl.com/5yuwmehf.
7
treatment from the rest of Palestine and should be placed under effective
United Nations control;” and
“instruct[ed] the Conciliation Commission to present to … the General
Assembly detailed proposals for a permanent international regime for the
Jerusalem area … consistent with the special international status of the
Jerusalem area”11.
The Assembly further:
“[r]esolve[d] that the refugees wishing to return to their homes and live at
peace with their neighbours should be permitted to do so at the earliest
practicable date, and that compensation should be paid for the property of
those choosing not to return and for loss of or damage to property which,
under principles of international law or in equity, should be made good by
the Governments or authorities responsible;” and
[i]nstruct[ed] the Conciliation Commission to facilitate the repatriation,
resettlement and economic and social rehabilitation of the refugees and the
payment of compensation”12.
1.20. On 11 May 1949, Israel was admitted as a Member of the United Nations
by resolution 273 (III) which noted “the declaration by the State of Israel that it
‘unreservedly accepts the obligations of the United Nations Charter and undertakes
to honour them from the day when it becomes a Member of the United Nations’”13
and “[r]ecall[ed] its resolutions of 29 November 1947 [i.e., Resolution 181 (II)]
and 11 December 1948 [i.e., Resolution 194 (III)] and t[ook] note of the
declarations and explanations made by the representative of the Government of
Israel before the ad hoc Political Committee in respect of the implementation of the
said resolutions”14.
1.21. To secure its membership in the United Nations, Israel stressed that it
“held no views and pursued no policies on any questions which were inconsistent
with the Charter or with the resolutions of the General Assembly and the Security
11 General Assembly, Resolution 194 (III), 11 December 1948, para. 8.
12 Ibid., para. 11.
13 General Assembly, Resolution 273 (III), 11 May 1949, preamble (footnote omitted). See
also Letter dated 29 November 1948 from Israel’s Foreign Minister to the Secretary-General,
S/1093, Annex.
14 General Assembly, Resolution 273 (III), 11 May 1949, preamble (footnotes omitted). See
also A/AC.24/SR.45-48, 50 and 51.
8
Council”15. It was based on that commitment that Israel was eventually granted
membership.
1.22. However, immediately after membership was granted, the Israeli
Foreign Minister stated that the war and its aftermath:
“had changed some elements of the pattern envisaged in the resolution of
29 November 1947 [i.e., resolution 181 (II)]. The changes must perforce
find their expression in the future peace settlement. There was no intrinsic
reason why those modifications, based on new realities, should not become
the subject of general consent.”16
1.23. Israel had thus immediately indicated that what it had achieved by the
use of force, including its military conquest of half of the territory allotted to the
Arab State in resolution 181 (II) and West Jerusalem, should be accepted as “new
realities”. It would also continue to deny Palestinian refugees their right of return
guaranteed by international law and resolution 194 (III). Israel has thus, since its
establishment and its subsequent attainment of Membership of the United Nations,
been in breach of the United Nations Charter and its relevant resolutions. This
reliance on the use of force to determine outcomes and seek their imposition began
a pattern of policies and practices that Israel would continue in the following
decades.
B. THE WAR OF 1967 AND THE ISRAELI OCCUPATION OF THE REMAINDER OF
PALESTINE (THE WEST BANK, INCLUDING EAST JERUSALEM, AND THE GAZA STRIP)
1.24. In June 1967, Israeli armed forces unlawfully seized control of the West
Bank, including East Jerusalem, and the Gaza Strip. For the past 56 years, Israel
has continuously occupied and exercised control over these areas, which are
collectively referred to by the United Nations and its agencies as the Occupied
Palestinian Territory, including East Jerusalem (OPT), and, alternately, as the State
of Palestine.
1.25. On 22 November 1967, the Security Council adopted resolution 242
(1967) which responded to Israel’s conquest of the West Bank, including East
Jerusalem, and the Gaza Strip, and other Arab territories by emphasizing “the
15 Official Records of the General Assembly, Third Session, Ad Hoc Political Committee,
Forty-fifth meeting, 5 May 1949, A/AC.24/SR.45, p. 230 (https://undocs.org/A/AC.24/SR.45).
16 Official Records of the General Assembly, Third Session, 207th plenary meeting,
11 May 1949, A/PV.207, p. 334 (Moshe Sharett) (https://undocs.org/A/PV.207).
9
inadmissibility of the acquisition of territory by war”, and by calling
unambiguously for the “[w]ithdrawal of Israel armed forces from territories
occupied in the recent conflict” 17. Israel refused to comply with these demands,
and it continues to defy them to the present day.
1.26. In the more than a half-century since Israel seized control of the OPT by
force, the Security Council and General Assembly have adopted hundreds of
resolutions which have condemned its policies and practices. These include Israel’s
continued occupation of the OPT; its establishment of hundreds of settlements in,
and transfer of over 700,000 settlers into the OPT; and its discriminatory and
oppressive treatment of the Palestinian people. These resolutions have also
demanded that Israel withdraw its military forces from the OPT and dismantle its
settlements, in accordance with international law, and cease its violations of the
rights of the Palestinian people, including their right to self-determination. Israel
has failed to comply with, and continues to egregiously violate, every one of these
resolutions.
1.27. As shown in this Written Statement, instead of respecting its obligations
under the relevant United Nations resolutions and international law, Israel has
maintained and entrenched its occupation of the Palestinian territory with the
objective of making it permanent. To this end, Israel has gone so far as to annex
East Jerusalem and the rest of the West Bank by a variety of de jure and de facto
means. Its most senior government officials have asserted that Israel will never give
up this territory, notwithstanding the express prohibition on acquisition of territory
by use of force derived from Article 2 (4) of the UN Charter, and other binding
instruments of international law.
1.28. Moreover, in annexing East Jerusalem and merging it with West
Jerusalem – which Israel seized by military force in 1948 – and by declaring the
Holy City its capital, in violation of international law, including the UN Charter and
General Assembly resolution 181 (II), Israel has flouted the internationallyrecognized
special status of Jerusalem. By settling more than 230,000 of its citizens
within East Jerusalem with the express aim of creating a Jewish Israeli majority,
Israel has changed the demographic composition of the Holy City and aimed to
forcibly alter its character and status.
1.29. As the evidence compiled by competent United Nations organs and cited
throughout this Written Statement demonstrates, in East Jerusalem and the rest of
the West Bank, Israel has: extended its own domestic laws and legal systems to this
17 Security Council, Resolution 242 (1967), 22 November 1967, preamble, para.1.
10
Palestinian territory; expropriated large swathes of land for its military forces and
hundreds of thousands of settlers; displaced Palestinians, including entire
communities, from their own homes and lands to facilitate and promote the growth
and expansion of its illegal colonial settlements; and taken over the natural
resources of the territory for its own ends. In the Gaza Strip, while Israel has
removed its 8,000 settlers, only to install 12,000 settlers in the West Bank, it
continues to impose a suffocating 16-year land, air and sea blockade as a further
means of controlling the territory and population, despite the catastrophic
humanitarian consequences. All of this is being committed daily and publicly in
grave breach of international law.
1.30. Moreover, on both sides of the Green Line, the Israeli government has
adopted and imposed a system of racial discrimination against Palestinians and
denied their fundamental rights. This regime is most apparent in the OPT. The
evidence described herein – based again on authoritative United Nations reports
and sources – demonstrates that Israel has imposed a dual legal system, divided
along racial lines, which includes separate laws, separate courts, separate
procedures and separate punishments that openly discriminate against Palestinians
in favour of the Israeli settlers transferred to and living illegally in the same
territory.
1.31. Palestinians are subjected to a plethora of racially-based and
internationally unlawful restrictions on their civil, political, economic, social and
cultural rights under a regime that is designed to subjugate them and prevent their
exercise of the right of self-determination in their own homeland. United Nations
Special procedures, respected human rights organizations and Israeli officials have
expressly characterized this racial discrimination as tantamount to apartheid.
1.32. Despite these historic injustices – from the Balfour Declaration to the
present - the Palestinian people have sought a way forward. They have done so in
good faith and in compliance with international law, to achieve freedom, justice and
peace. To this end, despite enduring decades of displacement, suffering, trauma and
loss, they agreed forty years ago to a historic compromise on the basis of the
relevant United Nations resolutions, including as they pertain to the inalienable
rights of the Palestinian people to self-determination and independence and the right
of return of Palestinian refugees, and in accordance with the international consensus
of two democratic States: a free, independent and sovereign State of Palestine living
side by side with Israel, in peace and security, on the pre-1967 borders. This historic
compromise aimed at securing the inalienable rights of the Palestinian people and
advancing just and lasting peace.
11
1.33. However, the initiation of a peace process and every iteration of it over
the past four decades have failed to bring an end to Israel’s occupation, colonization
and annexation of Palestinian territory, its subjugation of, and discrimination
against, the Palestinian people, and its denial of their fundamental rights, including
the right to self-determination. To the contrary, during this time Israel’s illegal
policies and actions have become more and more entrenched with the aim of
creating further faits accomplis and imposing by force an outcome in violation of
fundamental norms of international law. Rather than respecting the inalienable
rights of the Palestinian people and facilitating the realization of the two-State
solution by ending its occupation, Israel has chosen to pursue a policy of apartheid
between the Mediterranean Sea and the Jordan River. It has become abundantly
clear that for Israel, Palestinians who remain on the territory of historic Palestine
must either accept subsisting in territorial enclaves deprived of their fundamental
rights or must leave their homeland altogether to join their millions of compatriots
in forced exile.
C. THE WALL OPINION
1.34. This Request is not the first occasion in which the Court has been called
upon to examine the legality of Israel’s conduct in the OPT. In 2003, Israel began
the construction of a wall in the OPT that entailed the appropriation of Palestinian
territory and a clear attempt to incorporate Israeli settlements that have been
illegally established in the OPT on the western side of the Wall so as to annex
Palestinian land, and the natural resources it contains, to Israel, all in grave breach
of international law.
1.35. By resolution ES-10/14, adopted on 8 December 2003, the Court was
requested to advise the General Assembly on “the legal consequences arising from
the construction of the wall being built by Israel, the occupying Power, in the
Occupied Palestinian Territory, including in and around East Jerusalem …,
considering the rules and principles of international law”18.
1.36. In its Advisory Opinion of 9 July 2004 (“the Wall Opinion”), the Court
found, inter alia, that:
18 General Assembly, Resolution ES-10/14, Illegal Israeli actions in Occupied East Jerusalem
and the rest of the Occupied Palestinian Territory, 8 December 2003.
12
“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”19.
1.37. The principal findings of the Court regarding the construction of the Wall
in the OPT included the following:
– Israel, as occupying Power, is under a legal obligation to comply with the
Fourth Geneva Convention in the OPT20;
– All Israeli settlements are illegal as they violate Article 49, paragraph 6, of the
Fourth Geneva Convention21;
– Israel is bound by international human rights conventions in the OPT and,
consequently, its conduct is to be measured against both international human
rights law and international humanitarian law, including the Fourth Geneva
Convention22;
– The Palestinian people have the right to self-determination23; the construction
of the Wall “severely impedes the exercise by the Palestinian people of its right
to self-determination”24 and Israel is in breach of its “obligation to respect that
right”25;
– The establishment of a closed area between the Wall and the Green Line and
the creation of enclaves violates the inhabitants’ right to freedom of movement
(“with the exception of Israeli citizens and those assimilated thereto”26) and
violates Article 12 of the International Covenant on Civil and Political Rights.
It also violates the rights to work, health, education and an adequate standard
of living as contained in the International Covenant on Economic, Social and
Cultural Rights27;
19 Wall Opinion, p. 201, para. 163.
20 Ibid., pp. 173-177, paras. 90-101.
21 Ibid., pp. 183-184, paras. 120-121.
22 Ibid., p. 181, para. 114.
23 Ibid., pp. 182-183, para. 118.
24 Ibid., p. 184, para. 122.
25 Ibid.
26 Ibid.
27 Ibid., pp. 189-193, paras. 133-136.
13
– The destruction of property for the construction of the Wall violates Article 53
of the Fourth Geneva Convention and cannot be justified on grounds of
military necessity or national security28;
– The territories occupied by Israel since 1967 including East Jerusalem “remain
occupied territories” and illegal measures aimed at changing the status of the
City of Jerusalem “have done nothing to alter this situation”29;
– The construction of the Wall by Israel in the OPT, including in and around
East Jerusalem, and its associated régime are contrary to international law; and
Israel is obliged under the law to cease the construction of the Wall, to
dismantle it and make reparations for its construction30;
– All States are under a legal obligation not to recognize the illegal situation
resulting from the construction of the Wall, nor render aid or assist in
maintaining it, and to ensure compliance by Israel with the Fourth Geneva
Convention31;
– The United Nations, especially the General Assembly and Security Council,
should consider what further action is required to bring an end to the illegal
situation resulting from the construction of the Wall and its associated régime,
“taking due account of the present Advisory Opinion”32.
1.38. Following the Wall Opinion, numerous resolutions were adopted by the
Security Council, the General Assembly, and the Human Rights Council,
demanding that Israel comply with the legal obligations identified by the Court and
condemning Israel’s persistent failure to do so. In this respect, the Wall Opinion –
and the resolutions which affirm and demand compliance with it – constitute an
acquis against which subsequent Israeli practices in the OPT may be assessed.
1.39. In 2004 both the request from the General Assembly and the Opinion
addressed to it by the Court were limited to one question pertaining to “the legal
consequences arising from the construction of the wall”33. Thus, the Court was not
requested – and therefore did not touch upon – the legality of the occupation as
such, nor did it address various other violations committed by Israel in the entire
28 Ibid., pp. 192-194, para. 135-137.
29 Ibid., p. 167, para. 78.
30 Ibid., pp. 201-202, para. 163.
31 Ibid., p. 202, para. 163.
32 Ibid.
33 General Assembly, Resolution ES-10/14, Illegal Israeli actions in Occupied East Jerusalem
and the rest of the Occupied Palestinian Territory, 8 December 2003.
14
OPT and against the Palestinian people as a whole which had previously been
condemned by the United Nations including, inter alia, acts of deportation34,
massacre35, violence, incitement, intrusion in the vicinity of Holy places36, military
attacks37 and the unlawful use of force against Palestinians “resulting in injury and
loss of human life”38, the destruction of property39, civilian and security
infrastructure40, systemic and widespread restrictions on civil, social and economic
rights creating a “dire humanitarian situation of the Palestinian civilian
population”41, and the denial of return and compensation for loss suffered by
Palestinian refugees42.
1.40. Considering the limited scope of the General Assembly’s request in
resolution ES-10/14, the Court demanded the repeal of the illegal measures adopted
by Israel, focusing in this regard upon those acts “adopted with a view to [the]
construction [of the Wall], and to the establishment of its associated régime”43.
Nevertheless, when the Court concluded that the construction of the Wall was
unlawful under international law, it expressed concern about the broader context of
associated measures including the establishment and expansion of Israeli
settlements and the potential Israeli annexation of Palestinian territory – issues
which are now at the core of the present Request for an Advisory Opinion.
1.41. In this respect, the Court itself opined that “the construction of the wall
and its associated régime create a ‘fait accompli’ on the ground that could well
become permanent, in which case, and notwithstanding the formal characterization
of the wall by Israel, it would be tantamount to de facto annexation.”44
D. DEVELOPMENTS SINCE THE WALL OPINION
1.42. The observations of the Court in 2004 have proven to be prescient. Two
decades later, it is evident that – as fully demonstrated in this Written Statement –
“the construction of the wall and its associated regime [have] create[d] a ‘fait
34 Security Council, Resolution 726 (1992), 6 January 1992, para. 1.
35 Security Council, Resolution 904 (1994), 18 March 1994, para. 1.
36 Security Council, Resolution 1073 (1996), 28 September 1996, preamble and para. 1.
37 Security Council, Resolution 1402 (2002), 30 March 2002, preamble.
38 Security Council, Resolution 1322 (2000), 7 October 2000, para. 2.
39 Security Council, Resolution 267 (1969), 1 April 1969, para. 2 (“Deplores the loss of
civilian life and damage to property”).
40 Security Council, Resolution 1435 (2002), 24 September 2002, para. 2.
41 Security Council, Resolution 1405 (2002), 19 April 2002, preamble.
42 General Assembly, Resolution 194 (III), 11 December 1948, para. 11.
43 Wall Opinion, p. 198, para. 151.
44 Ibid., p. 184, para. 121.
15
accompli’ on the ground that [has] become permanent in which case, and
notwithstanding the formal characterization of the wall by Israel, it [is] tantamount
to de facto annexation”45.
1.43. In the 19 years since the Court rendered the Wall Opinion, Israel has
continued to construct the Wall in flagrant disregard of the Court’s findings as to
the illegality of this activity and Israel’s obligations to desist. Israel has also
continued to expand its vast network of settlements in East Jerusalem and the rest
of the West Bank. Alongside this, Israel has continued to extend the application of
its domestic laws and legal systems; to expropriate land and natural resources in the
West Bank for its own benefit; and to undertake measures aimed at connecting its
illegal settlements to each other and to Israel itself through the construction and
integration of roads and other infrastructure, for the purpose of establishing facts
on the ground intended to make its seizure and colonization of the OPT irreversible.
1.44. Israel has also continued to perpetrate systematic racial discrimination
against the Palestinians now indistinguishable from apartheid, and violations of
their fundamental rights as human beings, for the purpose of subjugating them and
defeating their national aspiration to realize their inalienable rights, notably to selfdetermination,
including their right to the independence of their State.
1.45. More generally, in the years since the Wall Opinion, Israel has
abandoned any remaining pretense that its over half-century occupation of the OPT
is temporary, as it is required to be under international law. Israel’s leaders have
repeatedly declared that Israel will never relinquish its purported “sovereignty”
over the whole of Jerusalem or evacuate any of the hundreds of Israeli settlements
throughout the West Bank, including East Jerusalem, transferring instead more
Israeli settlers into what they refer to as “Judea and Samaria”. According to its
current Prime Minister, Benjamin Netanyahu, Israel is committed to:
“applying Israeli sovereignty over all of the communities in Judea and
Samaria, both those in [settlement] blocs, including the area of the blocs,
and also those outside the blocs, as well as additional areas that are vital for
our security and for ensuring our heritage.”46
45 Ibid.
46 Israel Prime Minister’s Office, “Cabinet Approves PM Netanyahu’s Proposal to Establish
the Community of Mevo’ot Yericho & PM Remarks at the Start of the Cabinet Meeting”,
15 September 2019 (https://tinyurl.com/22tfxt2n).
16
E. THE GENERAL ASSEMBLY’S CURRENT REQUEST FOR AN ADVISORY OPINION
1.46. Israel’s breaches of international law in the OPT and of the rights of the
Palestinian people have been condemned by numerous United Nations resolutions
and are well documented in a vast collection of reports by the Secretary-General of
the United Nations, the High Commissioner for Human Rights, the United Nations
Office for the Coordination of Humanitarian Affairs and other United Nations
agencies, Special Committees, Independent Commissions of Inquiry and Factfinding
missions, Special Rapporteurs, human rights treaty bodies and an array of
other United Nations bodies, as well as respected non-governmental organizations,
in the State of Palestine, Israel and internationally. The number and extent of those
reports is a testament not only to the gravity, prolongation and systematic nature of
Israel’s violations of its international obligations, but also the depth of the
international community’s recognition of this unjust situation and its effect on the
efforts to secure a just and peaceful solution.
1.47. With the adoption of resolution 77/247 on 30 December 2022, the
General Assembly once again affirmed the United Nations’ longstanding efforts to
ensure that Israel complies with international law in regard to the question of
Palestine, in line with its permanent responsibility towards this question until it is
justly resolved in all aspects, a responsibility continually reaffirmed in relevant
resolutions.
1.48. The formulation of the questions on which the Court has been asked to
render an Advisory Opinion emanates directly from the evidence documented in
the resolutions and reports referred to above, namely that Israel is committing an
“ongoing violation … of the right of the Palestinian people to self-determination”;
that it has engaged in “prolonged occupation, settlement and annexation of” the
OPT; that it has adopted “measures aimed at altering the demographic composition,
character and status of the Holy City of Jerusalem”; and that it has adopted
“discriminatory legislation and measures”. The existence of these facts and
violations is established by overwhelming evidence drawn from the United Nations
record, which is addressed in detail in this Written Statement.
1.49. The questions referred to the Court by the General Assembly seek to
elucidate the legal consequences of these facts and violations. The authoritative
identification of those consequences by the Court is vital towards holding Israel to
account for its internationally wrongful acts and bringing those acts to an end once
and for all, essential for ending the historical injustice endured by the Palestinian
people and ensuring the attainment of their inalienable rights, which continue to be
precluded by the continuation and exacerbation of this unlawful situation. As the
17
United Nations Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and in Israel (“the Independent
International Commission of Inquiry”) explained following the adoption of
resolution 77/247:
“a definitive clarification of the legal consequences of Israel’s refusal to end
the occupation, and what the obligation of third parties to ensure respect for
international law are, will be crucial to member States and the UN in
considering what further measures should be adopted to ensure full
compliance with international law.”47
1.50. Importantly, the Court’s consideration of these questions and its
Advisory Opinion on these issues will provide authoritative guidance to all States
and the United Nations to ensure they do not recognize this illegal situation, do not
render aid or assistance in maintaining it, and cooperate to bring it to an end and
help realize the right of the Palestinian people to self-determination. Only sustained
impunity can explain how Israel has been able to commit such grave breaches and
for such a long period of time. The Advisory Opinion will therefore help guide
States and the United Nations in implementing their obligation to advance
accountability and the rule of international law.
1.51. The State of Palestine welcomes the General Assembly’s request to the
Court to perform the function that it is uniquely equipped to perform: to render an
impartial and authoritative judicial determination of the extent and nature of Israel’s
internationally wrongful acts and the legal consequences to which they give rise for
Israel, and for the international community as a whole. The State of Palestine has
full confidence that the principal judicial organ of the United Nations and the
guardian of the international legal order will faithfully fulfil that solemn
responsibility and approaches the Court with utmost respect and conviction in the
rule of international law and its capacity to deliver justice when guiding national
and international action.
47 “Commission of Inquiry welcomes General Assembly resolution requesting an ICJ
Advisory Opinion relating to the Israeli occupation of Palestinian territory”, United Nations Press
Release, 31 December 2022 (https://tinyurl.com/26c6u6e9).
18
III. Jurisdiction of the Court
1.52. Article 96, paragraph 1, of the United Nations Charter provides:
“The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question.” 48
1.53. Article 65, paragraph 1, of the Court’s Statute further stipulates:
“The Court may give an advisory opinion on any legal question at the
request of whatever body may be authorized by or in accordance with the
Charter of the United Nations to make such a request.”49
1.54. These provisions suffice to establish the competence of the General
Assembly to request an advisory opinion from the Court and the jurisdiction of the
Court to give the requested opinion.
1.55. Resolution 77/247, which provided for the Request, was adopted by a
clear majority of the members of the United Nations which voted on the matter, and
it must therefore be considered as the expression of the legally valid will of the
General Assembly.
1.56. Notwithstanding the permissive language of Article 65, paragraph 1, of
the Court’s Statute, the Court has never declined to give a requested Advisory
Opinion. In accordance with the constant jurisprudence of the Court50, only
“compelling reasons” could lead it to such a refusal. In the case at hand, such
reasons clearly do not exist. On the contrary, the legal questions referred to the
Court are both urgent and relevant, not least in view of recent developments in the
OPT concerning continuing and intensifying breaches of international law,
including of the United Nations Charter and peremptory norms of international law
which are addressed in the chapters that follow.
1.57. Furthermore, the General Assembly’s Request for an Advisory Opinion
arises in the context of the United Nations’ permanent responsibility for resolving
the question of Palestine, which, as noted by the Court in its advisory opinion on
48 United Nations Charter, Article 96, para.1.
49 United Nations Charter, Article 65, para.1.
50 Wall Opinion, p. 156, para. 44. See also 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; Legal Consequences of the Separation of the Chagos Archipelago
from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 113, para. 65.
19
the Wall, stems from its Charter duties relating to matters of international peace and
security, and “has its origin in the Mandate and the Partition Resolution concerning
Palestine”51. As the Court noted:
“This responsibility has been described by the General Assembly as ‘a
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’ .... Within the institutional framework of the
Organization, this responsibility has been manifested by the adoption of
many Security Council 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.”52
1.58. To date, the Security Council has adopted approximately 90 resolutions
on the Palestine question. These resolutions are complemented by an important and
copious body of resolutions from the General Assembly which also qualify the
situation as a threat to international peace and security53. Through these resolutions,
adopted over the course of the last 75 years, the United Nations has repeatedly
recognized its “permanent responsibility towards the question of Palestine until the
question is resolved in all its aspects”54.
1.59. Throughout this period, the Security Council and General Assembly
resolutions on Palestine have affirmed a number of fundamental principles of direct
relevance to the questions set out in the Request, namely:
(i) the inadmissibility of the acquisition of territory by force55;
(ii) the applicability of the Fourth Geneva Convention of 1949 to the OPT56;
(iii) the invalidity and illegality of legislative, administrative measures,
practices and policies which purport to alter the character, status and
demographic composition of the Holy City of Jerusalem57 and the
Occupied Palestinian Territory as a whole, including the establishment of
Israeli settlements58;
51 Wall Opinion, p. 159, para. 49.
52 Ibid.
53 General Assembly, Resolution ES-10/2, 25 April 1997, preamble.
54 General Assembly, Resolution 75/20, 2 December 2020, preamble.
55 See paras. 2.15-2.43 below.
56 See paras. 2.3-2.9 below.
57 See paras. 3.12-3.145 below.
58 See paras. 3.72-3.117 and 3.194-3.238 below.
20
(iv) the principle that, as an occupying Power, Israel bears human rights
obligations towards the Palestinian population in the OPT59; and
(v) the duty of every State including Israel, to promote the realization of the
right to self-determination of the Palestinian people.
1.60. As extensively documented in this Written Statement, Israel has
consistently violated those resolutions and defied the principles referred to therein.
1.61. In resolution 77/247, and in numerous resolutions preceding it, the
General Assembly stressed “as a matter of urgency” the necessity for “the United
Nations system to continue to support and assist the Palestinian people in the early
realization of their inalienable human rights, including their right to
self-determination”. This call echoes the Court’s statement in the Wall Opinion that:
“The Court, being concerned to lend its support to the purposes and
principles laid down in the United Nations Charter, in particular the
maintenance of international peace and security and the peaceful settlement
of disputes, would emphasize the urgent necessity for the United Nations as
a whole to redouble its efforts to bring the Israeli-Palestinian conflict, which
continues to pose a threat to international peace and security, to a speedy
conclusion, thereby establishing a just and lasting peace in the region.”60
1.62. The same considerations require the Court to answer the legal questions
submitted to it by the General Assembly in resolution 77/247. The General
Assembly’s decision to seek the opinion of the Court on a broader range of issues
relevant to question of Palestine as a whole, as opposed to a particular feature of it
such as the Wall, is intended to obtain indispensable guidance for international
action based on the law at this critical juncture for the Palestinian people and for
the prospects for achievement of just and lasting peace.
IV. Structure of this Written Statement
1.63. The State of Palestine’s Written Statement comprises seven chapters.
Following this introductory chapter, Chapter 2 identifies the relevant rules and
principles of international law. It highlights, in particular, among others, three
peremptory norms of general international law, derogation from which is not
permitted: (1) the inadmissibility of the acquisition of territory through the threat
59 See paras. 4.7-4.202 below.
60 Wall Opinion, p. 200, para. 161.
21
or use of force; (2) the prohibition against imposing regimes of racial
discrimination and/or apartheid; and (3) the obligation to respect the right of
peoples to self-determination.
1.64. Chapter 3 then addresses, in Part A, Israel’s illegal annexation of
Jerusalem and the unlawful changes which Israel has made to the demographic
composition, character and status of the Holy City, and in Part B, Israel’s illegal
annexation of the rest of the West Bank. As set out in Part A, since it seized control
by force of West Jerusalem (in 1948) and East Jerusalem (in 1967), Israel has
enacted numerous laws and administrative orders declaring and purporting to
exercise “sovereignty” over Jerusalem and its environs. In defiance of numerous
resolutions of the Security Council and General Assembly, Israel’s leaders and
governments have repeatedly declared and acted as though Jerusalem is the “eternal
capital of the State of Israel” – a position which the Knesset has expressly
articulated codified in Israel’s constitutional “Basic Law”. In addition, Israel has
built 14 settlements in East Jerusalem, which it has populated with more than
230,000 Israeli settlers to create a Jewish Israeli majority and further entrench its
dominion over the Holy City. Throughout its decades-long occupation, Israel has
also demolished thousands of Palestinian homes and deprived the Palestinian
inhabitants of the City of their rights in a calculated effort to drive out the
indigenous Palestinian population and further manipulate the demographic
composition of the City.
1.65. Part B of Chapter 3 demonstrates how Israel has enacted legislation and
administrative measures and orders which both expressly and implicitly assert
Israel’s “sovereignty” over the rest of the West Bank. Senior Israeli government
officials, including successive Prime Ministers, have made numerous public
declarations of Israel’s “sovereignty” over the West Bank and Israel’s resolve to
retain this occupied territory permanently. Those annexationist laws and words
have been accompanied by a very wide array of annexationist deeds, including the
establishment of more than 270 illegal Israeli settlements, housing nearly half a
million Israel settlers, throughout the West Bank in pursuit of a deliberate policy to
colonize the territory and create physical facts on the ground which aim to
permanently entrench Israel’s presence in and control of the West Bank. In parallel
and with the same purpose, Israel has created a coercive environment that operates
to forcibly displace Palestinians from the West Bank.
1.66. Chapter 4 addresses the discriminatory legislation and measures which
Israel has implemented and by which it has established a systematic regime of racial
discrimination against the Palestinian people tantamount to apartheid. That regime
22
– which both assumes and enshrines the existence of a stark racial hierarchy
between Israeli Jews and Palestinian Arabs, exists on both sides of the Green Line
and is exacerbated in the OPT, where it involves the application of different laws
and legal systems to the two distinct racial groups living in the same occupied
territory. This system of racial discrimination and persecution impairs and violates
the rights of Palestinians to life, liberty, freedom of expression and assembly,
freedom of movement, freedom of religion and an array of economic, social and
cultural rights, in violation of international humanitarian law and international
human rights law, and the jus cogens prohibition against racial discrimination and
apartheid, for the purpose of suppressing the rights and legitimate national
aspirations of the Palestinian people and maintaining permanent Israeli control of
the OPT.
1.67. Chapter 5 explains why Israel’s actions described in Chapters 3 and 4
constitute a grave, flagrant and ongoing denial of the right of the Palestinian people
to self-determination. Colonization, annexation, racial discrimination and apartheid
are recognized as egregious breaches of that fundamental right. The Chapter shows
that the Palestinian people’s right to self-determination has long been recognized
by the United Nations and the international community as a whole. In its
2004 Advisory Opinion, the Court recognized that the Palestinian people have the
right of self-determination, affirmed it as an erga omnes right and found that Israel
was in violation of it. Chapter 5 demonstrates that Israel remains in violation of this
jus cogens norm, notwithstanding the opinion of this Court and the longstanding
position of the United Nations that it must respect that right.
1.68. In Chapter 6, the State of Palestine explains why the facts recounted in
the preceding chapters lead inexorably to the conclusion that Israel’s occupation of
the OPT, in its entirety, is in and of itself an internationally wrongful act. Israel’s
occupation and continued presence in the OPT breach several peremptory norms of
general international law from which no derogation is permitted, notably: (1) the
inadmissibility of the acquisition of territory through the use of force; (2) the
prohibition against racial discrimination and apartheid; and (3) the obligation to
respect the right of peoples to self-determination. These intentional breaches of
fundamental international legal norms are indistinguishable from the occupation
itself and reflect its unlawful purpose.
1.69. Chapter 7 addresses, in Part A, the legal consequences for Israel of its
internationally wrongful acts. Two fundamental obligations arise as a result of
Israel’s illegal actions:
23
(a) First, Israel is required to cease – completely, unconditionally and immediately
– all of its breaches of international law and to provide appropriate assurances
and guarantees that those breaches will not be repeated.
(b) Second, Israel is required to make full reparation for the injury suffered by the
State of Palestine and the Palestinian people as a result of Israel’s breaches of
international law.
1.70. Finally, Part B of Chapter 7 addresses the legal consequences for third
States and for international organizations, including the United Nations, of Israel’s
internationally wrongful acts. Three distinct but related obligations arise:
(a) First, the obligation of non-recognition requires both States and international
organizations, including the United Nations, to refrain from recognizing as
lawful the situation which Israel has created by virtue of these wrongful acts;
(b) Second, they are also obliged to refrain from contributing to the violation of
the rights of the Palestinian people;
(c) Third, States and the United Nations have a positive duty to cooperate to
protect the rights of the Palestinian people and to bring an end to Israel’s
violation of those rights.
1.71. This Written Statement is accompanied by one volume of Annexes,
which contains documents which the State of Palestine considers may be of
assistance to the Court, but which are not contained in the dossier of documents
which have already been supplied to the Court by the United Nations, and may not
be readily accessible online.
25
Chapter 2.
APPLICABLE LAW
2.1. The General Assembly has asked the Court to render its Advisory
Opinion:
“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.”61
2.2. This Chapter will first identify the applicable rules of international
humanitarian law and international human rights law (Section I) whose violation
underlies and is integral to Israel’s breach of peremptory norms of general
international law (Section II).
I. Applicable Rules of International Humanitarian Law and
International Human Rights Law
A. INTERNATIONAL HUMANITARIAN LAW
2.3. It is settled that the 1907 Hague Convention IV Respecting the Laws and
Customs of War on Land, with its annexed Regulations62, and the 1949 Geneva
Convention Relative to the Protection of Civilian Persons in Time of War63, apply
to the OPT64. As noted by the Court in the Wall Opinion, the 1907 Hague
Regulations “have become part of customary law” and therefore apply to the OPT65.
61 General Assembly, Resolution 77/247, 30 December 2022, para. 18.
62 Convention Respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat.
2277 (entry into force: 26 January 1910), Annex (hereinafter: “1907 Hague Regulations”).
63 Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
12 August 1949, United Nations, Treaty Series (UNTS), Vol. 75, p. 287 (entry into force:
21 October 1950) (hereinafter “Fourth Geneva Convention”).
64 Wall Opinion, pp. 172 and 177, paras. 89 and 101.
65 Ibid., para. 89. See also Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996 (I), p. 256, para. 75; Judgment of the International Military Tribunal
of Nuremberg, 30 September and 1 October 1946, p. 455; Armed Activities on the Territory of the
Congo, Judgment, I.C.J. Reports 2005, p. 229, para. 171.
26
Likewise, after dispensing with Israel’s argument that the Fourth Geneva
Convention does not apply de jure to the OPT, the Court found as a matter of treaty
law that it does indeed apply, as it would to “any occupied territory in the event of
an armed conflict arising between two or more High Contracting Parties”66.
2.4. Of note, the armed conflict since 1967, including Israel’s occupation of
the OPT and other Arab territories, has involved High Contracting Parties to the
Fourth Geneva Convention, namely Israel67, Egypt68, Jordan69, Syria70, the State of
Palestine71. Among these, only Israel has entered reservations to the treaty, none of
which are relevant to these proceedings72. Also relevant to these proceedings is the
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Civilian Victims of International Armed Conflicts of
8 June 197773. All of the above-mentioned States, with the exception of Israel, are
party to Additional Protocol Ⅰ74.
2.5. As to customary law, in view of its number of High Contracting Parties –
196 States as at 30 June 2023 – the Fourth Geneva Convention is widely regarded
as a codification of custom75. This was the position taken by the Secretary-General
in his May 1993 report on the establishment of the International Criminal Tribunal
for the former Yugoslavia, where he stated that:
“The part of conventional international humanitarian law which has beyond
doubt become part of international customary law is the law applicable in
armed conflict as embodied in: the Geneva Conventions of 12 August 1949
for the Protection of War Victims ...”76
66 Wall Opinion, p. 177, para. 101.
67 Signed on 12 August 1949; Ratified on 6 July 1951.
68 Signed on 12 August 1949; Ratified on 10 November 1952.
69 Ratified on 29 May 1951.
70 Signed on 12 August 1949; Ratified on 2 November 1953.
71 See International Committee of the Red Cross (ICRC), International Humanitarian Law
Database, online, Palestine (https://tinyurl.com/5w9vxxtd).
72 See ICRC, International Humanitarian Law Database, online, Israel
(https://tinyurl.com/bdevyce9). See also Wall Opinion, p. 173, para. 91.
73 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Civilian Victims of International Armed Conflicts of 8 June 1977, UNTS, Vol. 1125,
p. 3 (hereinafter: “Additional Protocol Ⅰ”).
74 Egypt ratified on 9 October 1992; Jordan ratified on 1 May 1979; Syria acceded on
14 November 1983; and the State of Palestine acceded on 2 April 2014.
75 For a restatement of customary international humanitarian law see J. Henckaerts, and L.
Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (ICRC and
Cambridge University Press, 2005).
76 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808
(1993), 3 May 1993, S/25704, para. 35 (emphasis added) (https://undocs.org/S/25704).
27
2.6. The report of the Secretary-General was subsequently endorsed by the
Security Council in resolution 827 of 5 May 199377.
2.7. Since 1967, the Security Council and General Assembly have consistently
reaffirmed the applicability of the Fourth Geneva Convention to the Occupied
Palestinian Territory, including East Jerusalem, and called on Israel to scrupulously
abide by its obligations and responsibilities under it. Moreover, the 10th Emergency
Special Session, first convened in April 1997, also repeatedly affirmed this position
and invited the High Contracting Parties to convene on several occasions to address
this and other pertinent legal issues78.
2.8. In 2001, the Conference of High Contracting Parties, “reaffirm[ed]” the
applicability of the Fourth Geneva Convention to the Occupied Palestinian
Territory, including East Jerusalem, and called, inter alia, upon “the Occupying
Power to immediately refrain from committing grave breaches involving any of the
acts mentioned in article 147 of the Fourth Geneva Convention, such as wilful
killing, torture, unlawful deportation, wilful depriving of the rights of fair and
regular trial, extensive destruction and appropriation of property not justified by
military necessity and carried out unlawfully and wantonly. The participating High
Contracting Parties recall[ed] that according to article 148 no High Contracting
Party shall be allowed to absolve itself of any liability incurred by itself in respect
to grave breaches. The participating High Contracting Parties also recall[ed] the
responsibilities of the Occupying Power according to art. 29 of the Fourth Geneva
Convention for the treatment of protected persons”.79
2.9. Following the Wall Opinion, numerous resolutions of the Security
Council, General Assembly and Human Rights Council have affirmed the
continued applicability of the Fourth Geneva Convention to the OPT. For example,
in resolution 2334 (2016) of 23 December 2016, the Security Council reaffirmed
“the obligation of Israel, the occupying Power, to abide scrupulously by its legal
obligations and responsibilities under the Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War”80. Likewise, in resolution 77/247 of
30 December 2022 – containing the request for the Court’s advisory opinion in this
77 Security Council, Resolution 827 (1993), 25 May 1993, preamble and para. 1. It is also
widely accepted that many provisions of Additional Protocol I are declaratory of customary
international law. See J. Pictet et al., Commentary on the Additional Protocols of 8 June 1977 to the
Geneva Conventions of 12 August 1949 (ICRC, 1987), p. 20, para. 7.
78 See, e.g., General Assembly, Resolution ES-10/7, Illegal Israeli actions in Occupied East
Jerusalem and the rest of the Occupied Palestinian Territory, 20 October 2000.
79 Conference of High Contracting Parties to the Fourth Geneva Convention, Declaration,
5 December 2001, para. 13 (https://tinyurl.com/4bs9pde3).
80 Security Council, Resolution 2334 (2016), 23 December 2016, preamble.
28
matter – the General Assembly reaffirmed “the applicability of the Geneva
Convention relative to the Protection of Civilian Persons in Time of War, of
12 August 1949, to the Occupied Palestinian Territory, including East
Jerusalem”81. In addition, in resolution 49/4 of 31 March 2022, the Human Rights
Council recalled that the Fourth Geneva Convention “is applicable to the Occupied
Palestinian Territory, including East Jerusalem”82. This position has also been
unequivocally confirmed by the Conference of the High Contracting Parties to the
Fourth Geneva Convention who, in 2014, “emphasize[d] the continued
applicability and relevance of the Fourth Geneva Convention” to the OPT, and
“call[ed] on the occupying Power to fully and effectively respect the Fourth Geneva
Convention in the Occupied Palestinian Territory, including East Jerusalem”83.
B. INTERNATIONAL HUMAN RIGHTS LAW
2.10. A variety of international human rights treaties apply to these
proceedings. Among the most important of these are: the International Covenant on
Civil and Political Rights (ICCPR)84, the International Covenant on Economic,
Social and Cultural Rights (ICESCR)85, the International Convention on the
Elimination of all forms of Racial Discrimination (CERD)86, the International
Convention on the Elimination of all forms of Discrimination Against Women
81 General Assembly, Resolution 77/247, 30 December 2022, preamble.
82 Human Rights Council, Resolution 49/4, 31 March 2022, preamble.
83 Letter dated 29 December 2014 from the Permanent Representative of Switzerland to the
United Nations addressed to the Secretary-General, Annex, “Declaration of 17 December 2014
adopted by the Conference of High Contracting Parties to the Fourth Geneva Convention”,
A/69/711-S/2015/1 (https://undocs.org/A/69/711). Practice of United Nations Special Procedures
affirms the continued application of the whole of the Fourth Geneva Convention to the OPT,
including provisions otherwise excluded by operation of the “one year after” rule in Article 6 (3).
See, e.g., Report of the United Nations Fact-Finding Mission on the Gaza Conflict,
25 September 2009, A/HRC/12/48, paras. 46, 50, 53, and 1169 (https://undocs.org/A/HRC/12/48);
Report of the Special Rapporteur on the situation of human rights in the Palestinian territories
occupied since 1967, 13 April 2017, A/HRC/34/70, para. 25 (https://undocs.org/A/HRC/34/70).
84 International Covenant on Civil and Political Rights, 16 December 1966 (entry into force:
23 March 1976) UNTS, Vol. 999, p. 171 (ratified by Israel on 3 October 1991).
85 International Covenant on Economic, Social and Cultural Rights, 16 December 1966 (entry
into force: 3 January 1976), UNTS, Vol. 993, p. 3 (ratified by Israel on 3 October 1991).
86 International Convention on the Elimination of all forms of Racial Discrimination,
7 March 1966 (entry into force: 4 January 1969), UNTS, Vol. 660, p. 195 (ratified by Israel on
3 January 1979).
29
(CEDAW)87, the Convention on the Rights of the Child (CRC)88, and the
Convention Against Torture and other forms of Cruel, Inhuman or Degrading
Treatment or Punishment (CAT)89. Both the State of Palestine and Israel are parties
to these treaties90.
2.11. All the United Nations bodies monitoring adherence to these treaties
have confirmed that they apply to Israel’s actions in the OPT. These bodies have
uniformly and categorically rejected Israel’s argument that its human rights treaty
obligations do not exist in the OPT91. For example, on 2 May 2022 the Human
Rights Committee:
“reiterate[d] its concern that the State party maintains its position that the
Covenant does not apply with respect to individuals under its jurisdiction,
but outside its territory, despite the interpretation to the contrary of
article 2 (1) supported by the jurisprudence of the Committee, various other
treaty bodies, the International Court of Justice and State practice. It is
further concerned at the State party’s position that international human
87 Convention on the Elimination of all forms of Discrimination Against Women,
18 December 1979 (entry into force: 3 September 1981), UNTS, Vol. 1249, p. 13 (ratified by Israel
on 3 October 1991).
88 Convention on the Rights of the Child, 20 November 1989 (entry into force:
2 September 1990), UNTS, Vol. 1577, p. 3 (ratified by Israel on 3 October 1991).
89 Convention Against Torture and other forms of Cruel, Inhuman or Degrading Treatment or
Punishment, 10 December 1984 (entry into force: 26 June 1987), UNTS, Vol. 1465, p. 65 (ratified
by Israel on 3 October 1991).
90 Relevant treaty accession dates for Palestine are as follows: ICCPR (2 July 2014); ICESCR
(2 July 2014); CERD (2 May 2014); CEDAW (2 July 2014); CRC (2 May 2014); CAT
(2 May 2014).
91 See, e.g., Human Rights Committee, Concluding observations on the fifth periodic report of
Israel, 5 May 2022, CCPR/C/ISR/CO/5, para. 6 (https://undocs.org/CCPR/C/ISR/CO/5);
Committee on Economic, Social and Cultural Rights, Concluding observations on the fourth
periodic report of Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 8
(https://undocs.org/E/C.12/ISR/CO/4); Committee on the Elimination of all forms of Racial
Discrimination, Concluding observations on the combined seventeenth to nineteenth reports of
Israel, 27 January 2020, CERD/C/ISR/CO/17-19, para. 9 (https://undocs.org/CERD/C/ISR/CO/17-
19); Committee on the Elimination of Discrimination Against Women, Concluding observations on
the sixth periodic report of Israel, 17 November 2017, CEDAW/C/ISR/CO/6, para. 14
(https://undocs.org/CEDAW/C/ISR/CO/6); Committee on the Rights of the Child, Concluding
observations on the second to fourth periodic reports of Israel, 4 July 2013, CRC/C/ISR/CO/2-4,
para. 3 (https://undocs.org/CRC/C/ISR/CO/2-4); Committee Against Torture, Concluding
observations on the fifth periodic report of Israel, 3 June 2016, CAT/C/ISR/CO/5, para. 8
(https://undocs.org/CAT/C/ISR/CO/5).
30
rights law does not apply when international humanitarian law is applicable
(art. 2).”92
2.12. In the Wall Opinion, the Court found that each of the ICCPR, ICESCR
and CRC apply to the OPT93. More generally, the Court considered that “the
protection offered by human rights conventions does not cease in case of armed
conflict”, subject only to specific derogation provisions that may exist in relevant
conventions94. It further held that human rights law instruments are applicable “in
respect of acts done by a State in the exercise of its jurisdiction outside its own
territory”95.
2.13. As to customary law, various human rights norms that exist as customary
principles of law also bind Israel, including in respect of its occupation of the OPT.
Among the human rights instruments that are codifications of custom, the Universal
Declaration of Human Rights is a primary example96.
II. Peremptory Norms of General International Law
Applicable to these Proceedings
2.14. As stated by the International Law Commission (ILC), peremptory
norms of general international law (jus cogens) embody “three essential
characteristics”: (1) they protect values fundamental to the international legal order
“shared by the international community as a whole”; (2) they are “universally
applicable” by virtue of their non-derogability, since States cannot derogate from
them by creating their own special rules that conflict with them; and (3) they are
“hierarchically superior to other norms of international law” not having the same
character97, entailing obligations of an erga omnes character. The Court itself has
recognized the erga omnes character of such obligations.
92 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 6 (https://undocs.org/CCPR/C/ISR/CO/5).
93 Wall Opinion, pp. 180-181, paras. 111, 112 and 113.
94 Ibid., p. 178, para. 106.
95 Ibid., p. 178 and 180, paras. 106 and 111. See also Armed Activities on the Territory of the
Congo, Judgment, I.C.J. Reports 2005, pp. 242-243, para. 216; Application of the International
Convention on the Elimination of all Forms of Racial Discrimination, Provisional Measures, Order
of 15 October 2008, I.C.J. Reports 2008, p. 386, para. 109.
96 General Assembly, Resolution 217 A (III), Universal Declaration of Human Rights,
10 December 1948.
97 Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of
General International Law (Jus Cogens), Report of the International Law Commission, Seventy31
A. THE INADMISSIBILITY OF TERRITORIAL ACQUISITION BY
THREAT OR USE OF FORCE
2.15. The prohibition against the threat or use of force against the territorial
integrity or political independence of another State is enshrined in Article 2 (4) of
the United Nations Charter and is an indispensable cornerstone of the international
legal order. It has found universal expression in the principle prohibiting the
acquisition of territory by force. Article 2 (4) provides that:
“All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the Purposes of the United
Nations.”98
2.16. In Armed Activities on the Territory of the Congo, the Court explained
that “the prohibition against the use of force is a cornerstone of the United Nations
Charter.”99
2.17. The term “force” as used in Article 2 (4) necessarily includes armed
force100. As such, the Article applies, inter alia, to a situation of military occupation
which ipso facto entails an ongoing use of force within and against the occupied
territory, and prohibits the acquisition of that territory, or any part of it, by the
occupying military forces101.
2.18. Likewise, the prohibition on the use of force applies where force is used
in any other manner inconsistent with the “Purposes of the United Nations”. This
includes the purpose of developing “friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples”, as set
out in Article 1 (2) of the United Nations Charter102.
2.19. This prohibition was reflected and consolidated in three landmark
resolutions adopted by the General Assembly: resolution 2625 (XXV) of
third session (18 April–3 June and 4 July–5 August 2022), A/77/10, pp. 18 and 22-24, paras. (2)-(3),
(10) and (14) of the commentary to Conclusion 2.
98 Charter of the United Nations, Article 2 (4).
99 Armed Activities on the Territory of the Congo, Judgment, I.C.J. Reports 2005, p. 223,
para. 148.
100 B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, 2nd edition
(Oxford University Press, 2002), p. 25. See also Military and Paramilitary Activities in and against
Nicaragua, Merits, Judgment, I.C.J. Reports 1986, p. 101, para. 191.
101 See, e.g., Wall Opinion, p. 171, para. 87.
102 United Nations Charter, Article 1 (2).
32
24 October 1970, entitled “Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States”103; resolution 3314
(XXIX) of 14 December 1974, entitled “Definition of Aggression”104; and
resolution 42/22 of 18 November 1987, entitled the “Declaration on the
Enhancement of the Effectiveness of the Principle of Refraining from the Threat or
Use of Force in International Relations”105.
2.20. In resolution 2625 (XXV), the General Assembly adopted by consensus
seven principles deriving from the Charter and elaborated their content. It did so in
a manner so as to ensure their applicability to all States, not merely to United
Nations Members, such was the Assembly’s regard for the central importance of
these fundamental principles to the maintenance of international peace and
security106. The Assembly accordingly declared that “[t]he principles of the Charter
which are embodied in this Declaration constitute basic principles of international
law”, and consequently appealed “to all States to be guided by these principles in
their international conduct and to develop their mutual relations on the basis of the
strict observance of these principles”107. As noted by the Court in Military and
Paramilitary Activities in and against Nicaragua, “[t]he effect of consent to the text
of” the Friendly Relations Declaration “cannot be understood as merely that of a
‘reiteration or elucidation’ of the treaty commitment undertaken in the Charter. On
the contrary, it may be understood as an acceptance of the validity of the rule or set
of rules declared by the resolution … themselves”108. The Friendly Relations
Declaration has been approvingly referred to by this Court on multiple occasions109.
103 General Assembly, Resolution 2625 (XXV), Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States, 24 October 1970 (hereinafter:
“Friendly Relations Declaration”).
104 General Assembly, Resolution 3314 (XXIX), Definition of Aggression,
14 December 1974.
105 General Assembly, Resolution 42/22, Declaration on the Enhancement of the Effectiveness
of the Principle of Refraining from the Threat or Use of Force in International Relations,
18 November 1987.
106 H. Keller, “Friendly Relations Declaration (1970)”, Max Planck Encyclopedia of
International Law (June 2009), para. 13.
107 Friendly Relations Declaration, General Part, para. 3.
108 Military and Paramilitary Activities in and against Nicaragua, Merits, Judgment, I.C.J.
Reports 1986, pp. 99-100, para. 188.
109 See, e.g., Legal Consequences of the Separation of the Chagos Archipelago from Mauritius
in 1965, Advisory Opinion, I.C.J. Reports 2019, pp. 133 and 139, paras. 155 and 180; Armed
Activities on the Territory of the Congo, Judgment, I.C.J. Reports 2005, pp. 226 and 268, paras. 162
et 300.
33
2.21. The first principle set out in the Friendly Relations Declaration provides
that:
“States shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the purposes of the United
Nations.”110
2.22. In detailing the content of this principle, the Friendly Relations
Declaration affirms that:
– “The territory of a State shall not be the object of acquisition by another State
resulting from the threat or use of force”;
– “Every State has the duty to refrain from any forcible action which deprives
peoples … of their right to self-determination and freedom and
independence”; and
– “No territorial acquisition resulting from the threat or use of force shall be
recognized as legal”111.
2.23. In resolution 3314 (XXIX), the General Assembly adopted a definition
of aggression based on Article 2 (4) of the Charter:
“Aggression is the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations ….”112
2.24. Resolution 3314 (XXIX) included among the acts that would qualify as
aggression “[t]he invasion or attack by the armed forces of a State of the territory
of another State, or any military occupation, however temporary, resulting from
such invasion or attack, or any annexation by the use of force of the territory of
another State or part thereof”113.
2.25. The ILC recognized the jus cogens character of the prohibition of
aggression114. The crime of aggression was also considered by the Rome Statute as
110 Friendly Relations Declaration, Annex, para. 1
111 Ibid.
112 General Assembly, Resolution 3314 (XXIX), 14 December 1974, Annex, Article 1.
113 Ibid., Article 3 (a) (emphasis added).
114 Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of
General International Law (Jus Cogens), Report of the International Law Commission, Seventy34
one of the most serious crimes, of concern to the international community as a
whole, that the International Criminal Court had jurisdiction over115.
2.26. In resolution 42/22, the General Assembly reiterated that “[e]very State
has the duty to refrain in its international relations from the threat or use of force
against the territorial integrity or political independence of any State, or in any other
manner inconsistent with the purposes of the United Nations”, adding that “[s]uch
a threat or use of force constitutes a violation of international law and of the Charter
of the United Nations, and entails international responsibility”. The Declaration
further provided that “[n]either acquisition of territory resulting from the threat or
use of force nor any occupation of territory resulting from the threat or use of force
in contravention of international law will be recognized as legal acquisition or
occupation”116.
2.27. The fundamental principle prohibiting the acquisition of territory
through the threat or use of force is thus rooted in the purpose of safeguarding two
of the most fundamental values of the international system – squarely at issue in
this case – namely, the illegality of territorial acquisition resulting from the threat
or use of force, and the obligation to respect the right of peoples to selfdetermination.
In the Wall Opinion, this Court unreservedly affirmed the
prohibition against “territorial acquisition resulting from the threat or use of force”
as set out in the Friendly Relations Declaration:117
“As the Court stated in its Judgment in the case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), the principles as to the use of force incorporated in the
Charter reflect customary international law (see I.C.J. Reports 1986, pp. 98-
101, paras. 187-190); the same is true of its corollary entailing the illegality
of territorial acquisition resulting from the threat or use of force.”118
2.28. The Court further observed that “both the General Assembly and the
Security Council have referred, with regard to Palestine, to the customary rule of
‘the inadmissibility of the acquisition of territory by war’”119. Among the
third session (18 April–3 June and 4 July–5 August 2022), A/77/10, pp. 86-87, para. (7) of the
commentary to Conclusion 23 and its annex.
115 Rome Statute of the International Criminal Court, UNTS, Vol. 2187, p. 90, Articles 5 and
8 bis.
116 General Assembly, Resolution 42/22, 18 November 1987, Annex, Part I, paras. 1 and 10.
117 Wall Opinion, p. 171, para. 87.
118 Ibid.
119 Ibid., pp. 182-183, para. 117.
35
resolutions referred to by the Court in this regard are Security Council
resolution 242 (1967) of 22 November 1967 and General Assembly resolution
ES-10/14 of 8 December 2003120.
2.29. There are numerous resolutions affirming the application of the principle
prohibiting the acquisition of territory by force to the OPT which predate the
Court’s 2004 Wall Opinion. They include Security Council resolutions 267 (1969)
of 3 July 1969121, 298 (1971) of 25 September 1971122, 476 (1980) of
30 June 1980123, and 478 (1980) of 20 August 1980124, and General Assembly
resolutions 2628 (XXV) of 4 November 1970125, 32/20 of 25 November 1977126,
35/207 of 16 December 1980127, 40/168 A of 16 December 1985128, 45/83 A of
13 December 1990129, 50/84 D of 15 December 1995130, and 55/55 of
1 December 2000131. These represent only a small sample of those affirming this
principle.
2.30. Since the Wall Opinion, the prohibition on acquisition of territory by
force in respect of the OPT has been recalled continuously through further
resolutions of the Security Council, General Assembly, and Human Rights Council.
These, most recently, include Security Council resolution 2334 (2016) of
23 December 2016132, General Assembly resolution 77/25 of
30 November 2022133, and Human Rights Council resolution 49/4 of
31 March 2022134, each of which expressly reaffirms “the inadmissibility of the
acquisition of territory by force”. Again, these resolutions represent only a sample
120 Ibid., p. 139, 166 and 182-183, paras. 1, 74 and 117.
121 Security Council, Resolution 267 (1969), 3 July 1969, preamble (“Reaffirming the
established principle that acquisition of territory by military conquest is inadmissible”).
122 Security Council, Resolution 298 (1971), 25 September 1971, preamble (“Reaffirming the
principle that acquisition of territory by military conquest is inadmissible”).
123 Security Council, Resolution 476 (1980), 30 June 1980, preamble (“Reaffirming that the
acquisition of territory by force is inadmissible”).
124 Security Council, Resolution 478 (1980), 20 August 1980, preamble (“Reaffirming again
that the acquisition of territory by force is inadmissible”).
125 General Assembly, Resolution 2628 (XXV), 4 November 1970, preamble.
126 General Assembly, Resolution 32/20, 25 November 1977, preamble.
127 General Assembly, Resolution 35/207, 16 December 1980, preamble.
128 General Assembly, Resolution 40/168, 16 December 1985, preamble.
129 General Assembly, Resolution 45/83 A, 13 December 1990, preamble.
130 General Assembly, Resolution 50/84 D, 15 December 1995, preamble.
131 General Assembly, Resolution 55/55, 1 December 2000, preamble.
132 Security Council, Resolution 2334 (2016), 23 December 2016, preamble
133 General Assembly, Resolution 77/25, 30 November 2022, preamble.
134 Human Rights Council, Resolution 52/34, 4 April 2022, preamble.
36
of numerous similar resolutions that have been adopted in the period from 2004 to
the present day.
2.31. To these have been added the views of other competent organs and
bodies of the United Nations. The Economic and Social Council, for example, has
affirmed the application of the prohibition on acquisition of territory by force to the
OPT135, as have various United Nations special procedures, as described below.
2.32. Thus, in its 14 September 2022 report to the General Assembly, the
Independent International Commission of Inquiry on the Occupied Palestinian
Territory, including East Jerusalem, and in Israel (hereinafter “UN Commission of
Inquiry on the OPT and Israel”) recommended that:
“the Security Council urgently consider measures to ensure that Israel
immediately complies with its international legal obligations and with prior
Council resolutions, including those in which the Council has called for an
end to the occupation, has declared the acquisition of territory by force
inadmissible and has found that settlement activity constitutes a flagrant
violation of international law.”136
2.33. Likewise, multiple United Nations Special Rapporteurs for the Situation
of Human Rights in the Palestinian territories occupied by Israel since 1967 have
affirmed the application of the prohibition on acquisition of territory by force to the
OPT137.
2.34. In sum, the key principles set out in the United Nations Charter and
developed and affirmed by various organs of the United Nations over decades,
including the Security Council, General Assembly, Human Rights Council,
135 Economic and Social Council, Resolution 2022/22, 1 August 2022, preamble.
136 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and in Israel, 14 September 2022, A/77/328,
para. 94 (https://undocs.org/A/77/328).
137 See, e.g., Report of the Special Rapporteur of the Commission on Human Rights on the
situation of human rights in the Palestinian territories occupied by Israel since 1967,
8 September 2003, E/CN.4/2004/6, para. 14 (https://undocs.org/E/CN.4/2004/6); Report of the
Special Rapporteur on the situation of human rights in the Palestinian territories occupied
since 1967, 22 October 2018, A/73/447, para. 27 (https://undocs.org/A/73/447); Report of the
Special Rapporteur on the situation of human rights in the Palestinian territories occupied
since 1967, 23 October 2017, A/72/556, para. 31 (https://undocs.org/A/72/556); and Report of the
Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, 21 September 2022, A/77/356, para. 10 (https://undocs.org/A/77/356).
37
Economic and Social Council, and this Court, make it clear that the situation in the
OPT is governed by the following:
– that the territory of a State shall not be the object of acquisition by another
State resulting from the threat or use of force138;
– that no territorial acquisition resulting from the threat or use of force shall be
recognized as legal139; and
– that the prohibition on acquisition of territory applies to the OPT140.
2.35. This prohibition underlies the rules that govern the law of belligerent
occupation. The first of these rules is that occupation is a temporary condition
during which the occupying power may act only as de facto administrator of the
territory in trust and good faith and for the benefit of the protected population.
2.36. Occupation is thus an exceptional and provisional state of affairs, under
which the belligerent occupant is prohibited from permanently altering the status of
the occupied territory, and is prevented from depriving protected persons from the
protections assured to them under international humanitarian law, as stipulated in
Article 47 of the Fourth Geneva Convention.
2.37. The ICRC commentary on Article 47 is abundantly clear regarding the
intentions of the drafters of the Convention:
“The occupation of territory in wartime is essentially a temporary, de facto
situation, which deprives the occupied power of neither its statehood nor its
sovereignty; it merely interferes with its power to exercise its rights. That is
what distinguishes occupation from annexation, whereby the Occupying
Power acquires all or part of the occupied territory and incorporates it in its
own territory.”141
2.38. Accordingly, a second rule of belligerent occupation is that it does not
result in a transfer of sovereign title to the occupant. This principle was well-
138 Friendly Relations Declaration, Annex, para. 1.
139 Ibid.
140 Security Council, Resolution 2334 (2016), 23 December 2016, preamble and para. 4; Wall
Opinion, p. 182, para. 117.
141 J. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (ICRC, 1958), p. 275 (emphasis added).
38
articulated by Oppenheim when he stated that belligerent occupation does not yield
so much as “an atom of sovereignty in the authority of the occupant”142.
2.39. This is reflected in Article 4 of Additional Protocol Ⅰ, which provides
that:
“The application of the Conventions and of this Protocol … shall not affect
the legal status of the Parties to the conflict. Neither the occupation of a
territory nor the application of the Conventions and this Protocol shall affect
the legal status of the territory in question.”143
2.40. This provision is a codification of customary international law.
According to the ICRC commentary on Article 4 of Additional Protocol Ⅰ:
“everyone recognized this principle as an uncontested principle of
international law which was, moreover, underlying both the Hague
Regulations and the Fourth Geneva Convention. Nowadays it follows from
the inadmissibility of the use of force, as laid down in the Charter of the
United Nations, and elaborated in the Declaration on Principles of
International Law concerning Friendly Relations and Cooperation among
States in accordance with the Charter of the United Nations
(Resolution 2625(XXV) of the United Nations General Assembly).”144
2.41. In a June 2020 Expert Meeting convened by the ICRC, the core
principles of the law of belligerent occupation were reaffirmed. According to the
Experts, “[a]s a general rule” the law of belligerent occupation:
“provides the legal framework for the temporary exercise of authority by
the occupant …. Under occupation law, the sovereign title relating to the
occupied territory does not pass to the occupant, who has, therefore, to
preserve as far as possible the status quo ante ….”145
142 L. Oppenheim, “The Legal Relations Between an Occupying Power and the Inhabitants”,
Law Quarterly Review, Vol. 33, 1917, no. 4, p. 364, quoted in Y. Dinstein, “The International Law
of Belligerent Occupation and Human Rights”, Israel Yearbook on Human Rights, Vol. 8, 1978,
p. 106.
143 Additional Protocol I, Article 4.
144 J. Pictet et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (ICRC, 1987), p. 73, para. 172.
145 T. Ferraro (ed.), Occupation and Other Forms of Administration of Foreign Territory,
Expert Meeting, (ICRC, 2012), p. 7, fn. 1.
39
2.42. Both the “temporariness” and “non-sovereign” principles that underpin
the law of belligerent occupation have been affirmed by the General Assembly and
the Security Council in relation to Israel’s occupation of Palestine146.
2.43. As shown in Chapter 3, Israel has indisputably violated these principles
by its assertion of “sovereignty” over East Jerusalem and the West Bank, its de jure
and de facto annexation of these parts of the OPT, and its pledge never to surrender
them or permit the Palestinian people to exercise their right of self-determination
therein. These unlawful acts, contrary to peremptory norms of general international
law, render the occupation an internationally wrongful act of an ongoing character.
B. THE PROHIBITION AGAINST RACIAL DISCRIMINATION AND APARTHEID
2.44. The prohibition of racial discrimination and apartheid is reflected most
extensively in CERD. As the Court has very recently underlined, 182 States are
parties to CERD – a fact which “confirm[s]” the “universal character” of that
Convention147. Those parties include both the State of Palestine and Israel.
2.45. There can be no doubt that the prohibition of racial discrimination, as
codified in CERD, forms part of customary international law, and has long been
recognized as a peremptory norm of a universal character. As early as 1970, in
Barcelona Traction, the Court considered the prohibition of racial discrimination
to be a norm of erga omnes character, stating that:
“[s]uch obligations derive, for example, in contemporary international law,
from the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination.”148
146 The General Assembly has clearly and unequivocally endorsed these principles. See
General Assembly, Resolution 77/126, 12 December 2023. The Security Council has recognized
them insofar as it has, for years, reaffirmed the inadmissibility of acquisition of territory through the
threat or use of force in its resolutions on the occupied Palestinian territory. See, e.g., Security
Council, Resolution 2334 (2016), 23 December 2016.
147 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination, Preliminary Objections, Judgment, I.C.J. Reports 2021, p. 99, para. 87.
148 Barcelona Traction, Light and Power Company, Limited (New Application: 1962), Second
phase, Judgment, I.C.J. Reports 1970, p. 32, para. 34.
40
2.46. The ILC has also for many years accepted the jus cogens character of the
prohibition of racial discrimination149, confirming it most recently in 2022150.
2.47. The practice of apartheid is considered to be a particularly egregious
form of discrimination, as reflected in its prohibition and criminalization in
numerous treaties. The CERD provides that “States Parties particularly condemn
racial segregation and apartheid and undertake to prevent, prohibit and eradicate
all practices of this nature in territories under their jurisdiction”151. The 1973
Convention on the Suppression and Punishment of the Crime of Apartheid provides
for the prosecution of persons guilty of committing the crime of apartheid152.
Additional Protocol Ⅰ to the Geneva Conventions of 1977 also declares that
“practices of apartheid” based on racial discrimination constitute a grave breach of
the Protocol153. Finally, in 1998 the crime of apartheid was included as a crime
against humanity in the Rome Statute of the International Criminal Court154.
2.48. Repeated resolutions of the General Assembly155, and the Security
Council156, coupled with the condemnation and criminalization of apartheid in the
above-mentioned treaties, have resulted in an acceptance of the unlawfulness of
apartheid under customary international law157 and recognition that the prohibition
of apartheid is of a jus cogens character. The ILC reconfirmed that the prohibition
of apartheid qualifies as a peremptory norm of general international law in 2022158.
149 See Articles on Responsibility of States for Internationally Wrongful Acts, ILC Yearbook,
2001, Vol. II, Part Two, p. 112, para. (4) of the commentary to Article 40.
150 Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of
General International Law (Jus Cogens), Report of the International Law Commission, Seventythird
session (18 April–3 June and 4 July–5 August 2022), A/77/10, pp. 87-88, para. (11) of the
commentary to Conclusion 23 and its annex.
151 CERD, Article 3 (emphasis added). See also the Preamble of this convention.
152 Convention on the Suppression and Punishment of the Crime of Apartheid, UNTS,
Vol. 1015, p. 243 (entry into force: 18 July 1976), Articles 2 and 5.
153 Additional Protocol I, Article 85 (4) (c).
154 Rome Statute of the International Criminal Court, UNTS, Vol. 2187, p. 90, Article 7 (1) (j).
155 See, e.g., Resolutions 1761 (XVII) of 1962, 2396 (XXII) of 1968 and 39/72 of 1984.
156 See, e.g., Resolutions 134(1960), 181 (1963), 282 (1970), 418 (1977), 569 (1985).
157 See M. Jackson, “The definition of apartheid in customary international law and the
International Convention on the Elimination of All Forms of Racial Discrimination”, The
International and Comparative Law Quarterly, Vol. 71, 2022, no. 4, p. 835; A. Cassese, P. Gaeta et
al., Cassese’s International Criminal Law, 3rd ed (Oxford University Press, 2013), p. 107; J.-M.
Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules
(ICRC and Cambridge University Press, 2005), pp. 588-589.
158 Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of
General International Law (Jus Cogens), Report of the International Law Commission, Seventythird
session (18 April–3 June and 4 July–5 August 2022), A/77/10, pp. 87-88, para. (11) of the
commentary to Conclusion 23 and its annex. See also Articles on Responsibility of States for
41
2.49. The General Assembly, as well as other United Nations bodies have
repeatedly condemned a wide range of Israeli policies and practices that
discriminate against and disproportionately affect Palestinians, and that deny them
their fundamental rights159.
2.50. As shown in Chapter 4, in blatant violation of these jus cogens norms
and erga omnes obligations, Israel has deliberately imposed and maintained a
system of racial discrimination tantamount to apartheid against Palestinians. It has
done so for the purpose of prolonging its occupation indefinitely and asserting its
permanent dominion over the OPT, and preventing self-determination by the
Palestinian people in their ancestral land, privileging one racial group to the
detriment of the fundamental rights of the other between the Jordan River and the
Mediterranean Sea. In so doing, it has denied Palestinians the most basic of
fundamental human rights – the right to life, to freely determine their political
status, to economic, social and cultural development, to freedom from arbitrary
arrest, detention or punishment, to freedom from torture and other cruel or
inhumane treatment, to freedom of movement, to freedom of religious exercise,
inter alia – recognized in the Universal Declaration of Human Rights and other
applicable instruments to which Israel is a party.
C. THE OBLIGATION TO RESPECT THE RIGHT OF SELF-DETERMINATION
2.51. It is well settled that the obligation to respect a people’s right of selfdetermination
is a peremptory norm of general international law. As the Court noted
in the East Timor case, the right to self-determination “is one of the essential
principles of contemporary international law”, enjoying an erga omnes character160.
In addition to being a principle of “universal application” which has erga omnes
effects, the right of self-determination is also a jus cogens norm161.
Internationally Wrongful Acts, ILC Yearbook, 2001, Vol. II, Part Two, p. 112, para. (4) of the
commentary to Article 40.
159 See, e.g., General Assembly, Resolution 77/126, 30 December 2022; Human Rights
Council, Resolution 49/29, 1 April 2022, para. 7 (c) (https://undocs.org/A/HRC/RES/49/29).
160 East Timor, Judgment, I.C.J. Reports 1995, p. 102, para. 29. See also Wall Opinion,
pp. 171-172, para. 88; Legal Consequences of the Separation of the Chagos Archipelago from
Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 139, para. 180.
161 M. Shaw, Title to Territory in Africa: International Legal Issues (Oxford University Press,
1986), p. 91; D. Raic, Statehood and the Law of Self-Determination (Martinus Nijhoff Publishers,
2002), p. 219. See also Draft Conclusions on Identification and Legal Consequences of Peremptory
Norms of General International Law (Jus Cogens), Report of the International Law Commission,
Seventy-third session (18 April–3 June and 4 July–5 August 2022), A/77/10, p. 88, para. (14) of the
commentary to Conclusion 23 and its annex.
42
2.52. In 1971, the Court emphasized that developments in international law
had made the principle of self-determination applicable not merely to Trust
territories, but to all non-self-governing territories, and that self-determination was
the “ultimate objective” of the “sacred trust” to which Article 22 (1) of the
Covenant of the League of Nations referred162. In the Wall Opinion, the Court
recalled that the right of peoples to self-determination was now “one of the essential
principles of contemporary international law” and was a right erga omnes163. In its
Advisory Opinion on Chagos, the Court confirmed that by the 1960s the right to
self-determination existed in customary international law, and that one of its
essential corollaries was a right to territorial integrity164.
2.53. The United Nations Charter explicitly affirms, as one of the primary
purposes of the organization, the development of “friendly relations among nations
based on respect for the principle of equal rights and self-determination of
peoples”165. The recognition given to the principle of self-determination, as one of
the purposes of the United Nations Charter, was reinforced in the text of Articles 55
and 56 in Chapter Ⅸ of the Charter. Article 55 specified that the United Nations
should work towards “the creation of conditions of stability and well-being …
based on respect for the principle of equal rights and self-determination”. By
Article 56, Member States pledged themselves “to take joint and separate action in
co-operation with the Organization for the achievement” of those purposes. These
provisions marked “an important turning point”, signalling the maturation of the
principle of self-determination and foreshadowing its evolution, through practice,
into a precept “directly binding on states”166.
2.54. A key development in State practice, as noted by the Court in both the
Namibia and Chagos cases, was the adoption of the Declaration on the Granting of
Independence to Colonial Countries and Peoples (General Assembly
resolution 1514 (XV) of 14 December 1960). This was applicable to all peoples and
territories which “have not yet attained independence”. By resolution 1514 (XV),
the General Assembly proclaimed, “the necessity of bringing to a speedy and
162 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. 31, paras. 52-53.
163 Wall Opinion, p. 172, para. 88. See also East Timor, Judgment, I.C.J. Reports 1995, p. 102,
para. 28.
164 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, I.C.J. Reports 2019, p. 134, para. 160.
165 Charter of the United Nations, Article 1 (2).
166 A. Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University
Press, 1995), p. 43.
43
unconditional end colonialism in all its forms and manifestations”167 and provided,
inter alia, that:
“1. The subjection of peoples to alien subjugation, domination, and
exploitation constitutes a denial of fundamental human rights, is contrary to
the Charter of the United Nations and is an impediment to the promotion of
world peace and co-operation.
.......................................................................................................................
6. Any attempt aimed at the partial or total disruption of the national unity
and the territorial integrity of a country is incompatible with the purpose and
principles of the Charter of the United Nations.”
2.55. Whilst resolution 1514 (XV) was formally only a recommendation, it
had, as the Court observed in the Chagos case:
“a declaratory character with regard to the right to self-determination as a
customary norm, in view of its content and the conditions of its adoption …
None of the States participating in the vote contested the existence of the
right of peoples to self-determination”168.
2.56. The Court further pointed out that, “[t]he wording used in
resolution 1514 (XV) has a normative character, in so far as it affirms that ‘all
peoples have the right to self-determination’”169. The Court concluded that by the
middle of the 1960s, if not sometime earlier, the recognition of the right to selfdetermination
had entered the corpus of international law170. The language of
resolution 1514 (XV) makes clear that self-determination is not only a right (as
opposed to a mere principle), but it is a right enjoyed by all peoples subject to alien
167 General Assembly, Resolution 1514 (XV), Declaration on the Granting of Independence to
Colonial Countries and Peoples, 14 December 1960 (emphasis added).
168 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, I.C.J. Reports 2019, p. 132, para. 152.
169 Ibid., pp. 132-133, para. 153.
170 Ibid., p. 132, para. 150. The Court suggests thereby that self-determination had become a
principle of customary international law. See D. Raic, Statehood and the Law of Self-Determination
(Martinus Nijhoff Publishers, 2002), p. 217. The view that resolution 1514 (XV) also represented a
definitive interpretation of the United Nations Charter itself has also been widely held. See, e.g.,
T.A. Mensah who points out that “no one in the General Assembly questioned the assertion that the
resolution was entirely within the letter and spirit of the Charter” (Self-Determination Under United
Nations’ Auspices: The Role of the United Nations in the Application of the Principle of Self-
Determination for Nations and Peoples (Yale Law School, 1968), pp. 80-81). See also M. Shaw,
Title to Territory in Africa: International Legal Issues (Oxford University Press, 1986), pp. 74 and
76 (describing resolution 1514 (XV) as an authoritative interpretation of the Charter).
44
subjugation, domination and exploitation. It is thus not confined merely to
territories that continued to be held as colonies, but extends also to all those peoples
and territories subject to alien rule that “have not yet attained independence”.
Paragraph 6 of resolution 1514 (XV) also makes clear that the right to selfdetermination
carries with it a prohibition on the partial or total disruption of the
national unity and territorial integrity of the country concerned171.
2.57. On 16 December 1966, the General Assembly adopted the ICCPR and
the ICESCR. Common Article 1 of each Covenant declares that “all peoples have
the right to self-determination”. Following the language of resolution 1514 (XV),
common Article 1 goes on to state that “[b]y virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development”. Common Article 1, however, goes further than the Declaration on
Decolonization in providing that:
“States parties … shall promote the realization of the right to selfdetermination
and shall respect the right in conformity with the provisions
of the Charter of the United Nations.”172
2.58. The Covenants proclaim the right to self-determination as a human right
that belongs to “all peoples”, and the corresponding duty on all States to both
respect and promote that right. They also make clear that self-determination implies
a right of all peoples to “freely dispose of their natural wealth and resources”, and
to do so “for their own ends”. They recall, in that sense, the terms of
resolution 1803 (XVII) of 14 December 1962, which described the “permanent
sovereignty over natural wealth and resources” to be “a basic constituent of the right
to self-determination”.
2.59. As noted, the Friendly Relations Declaration was intended to represent a
definitive statement of the relevant principles of the United Nations Charter173.
Building upon the language of both the Colonial Declaration and the two
International Covenants, it states that:
“by virtue of the principle of equal rights and self-determination of peoples
enshrined in the Charter of the United Nations, all peoples have the right
171 General Assembly Resolution 1514 (XV), 14 December 1960, para. 6.
172 ICCPR, Article 1 and ICESCR, Article 1 (emphasis added).
173 M. Shaw, Title to Territory in Africa: International Legal Issues (Oxford University Press,
1986), p. 82, stating that: “[t]he Declaration was intended to act as an elucidation of certain
important Charter provisions, although not as an actual amendment of the Charter, and was adopted
by member States on that basis”.
45
freely to determine … their political status and to pursue their economic,
social and cultural development.”
2.60. As noted, the Declaration reiterates that:
“Every State has the duty to refrain from any forcible action which deprives
peoples … of their right to self-determination and freedom and
independence”;
and:
“Every State shall refrain from any action aimed at the partial or total
disruption of the national unity and territorial integrity of any other State or
country.”
2.61. In 2019, in the Chagos Advisory Opinion the Court reaffirmed that by
“recognizing the right to self-determination as one of the ‘basic principles of
international law’, the Declaration confirmed its normative character under
customary international law”174.
2.62. United Nations bodies have long recognized the right of selfdetermination
of the Palestinian people. In 1970, for example, the General
Assembly adopted resolution 2649 (XXV) which condemned “those Governments
that deny the right to self-determination of peoples recognized as being entitled to
it, especially of the peoples of southern Africa and Palestine”175; and in
resolution 2672 C (XXV) of 8 December 1970 it recognized “that the people of
Palestine are entitled to equal rights and self-determination, in accordance with the
Charter of the United Nations” and that “full respect for the inalienable rights of the
people of Palestine is an indispensable element in the establishment of a just and
lasting peace in the Middle East”.176
2.63. These resolutions were followed by repeated affirmation by the General
Assembly of the “inalienable rights of the Palestinian people” to self-determination
and national independence and sovereignty, and the right of Palestinians to return
174 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, I.C.J. Reports 2019, p. 133, para. 155.
175 General Assembly, Resolution 2649, 30 November 1970, para. 5.
176 General Assembly, Resolution 2672 C (XXV), 8 December 1970, para. 1.
46
to their homes and properties; urging all States and international organizations to
support the right of the Palestinian people to self-determination177.
2.64. In the Wall Opinion, the Court reiterated that the right of selfdetermination
has an erga omnes character, and recognized that the Palestinian
people possess such a right:
“As regards the principle of the right of peoples to self-determination, the
Court observes that the existence of a “Palestinian people” is no longer in
issue.”178
And it went on in to hold that the construction of the Wall:
“severely impedes the exercise by the Palestinian people of its right to selfdetermination,
and is therefore a breach of Israel’s obligation to respect that
right.”179
2.65. As shown in Chapter 5, Israel has not only breached its obligation in this
regard, but has actively aimed to suppress the Palestinian people’s right of selfdetermination,
including their right to independence of their State on the Palestinian
territory occupied by Israel in 1967, including East Jerusalem.
177 See, e.g., Resolution 3236 (XXIX), 22 November 1974; for a more recent example see
Resolution 77/208, 15 December 2022.
178 Wall Opinion, pp. 181-182, para. 118.
179 Ibid., p. 184, para. 122.
47
Chapter 3.
ISRAEL’S ANNEXATION OF PALESTINIAN TERRITORY
3.1. In its Request for an Advisory Opinion, the General Assembly has asked
the Court to determine inter alia what are the legal consequences arising from
“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
Occupied Palestinian Territory is shown below, in Figure 3.1.
3.2. This Chapter is presented in two Parts. Part A addresses the measures
adopted by Israel to annex the Holy City of Jerusalem by attempting to permanently
alter its demographic composition, character and status. Part B then demonstrates
that similar tools have been used to annex the rest of the West Bank.
3.3. As elaborated in Chapter 2, the rules governing the law of belligerent
occupation were designed, inter alia, to prevent military occupation from becoming
a means to unlawful acquisition of territory. Belligerent occupation corresponds to
a fundamentally temporary situation during which the occupying Power is solely
conferred with provisional powers of administration. The occupying Power must
administer the occupied territory for the benefit of the people living under
occupation. The occupant does not acquire sovereignty over the territory it
occupies.
3.4. Transfer of the occupant’s population into the occupied territory, as well
as the forcible transfer of the existing population from the occupied territory, are
expressly prohibited, inter alia by Article 49 (6) of the Fourth Geneva Convention,
which stipulates that “[t]he Occupying Power shall not deport or transfer parts of
its own civilian population into the territory it occupies”. The drafters introduced
this provision to guard against occupying Powers abusing their position as
temporary administrators of occupied territories to introduce permanent
demographic changes to such territories as a means of conquest. As noted by the
ICRC commentary, this provision was specifically “intended to prevent a practice
adopted during the Second World War by certain Powers, which transferred
portions of their own population to occupied territory for political and racial reasons
48
or in order, as they claimed, to colonize those territories.”180 Thus, Israel’s policies
and practices – including its implanting of more than 230,000 of its citizens into
East Jerusalem and its environs, and more than 460,000 in the rest of the West Bank,
in more than 280 government-supported settlements, and, at the same time, its
displacement of hundreds of thousands of Palestinians from their homes, villages,
towns and cities, and the OPT itself – are comparable to those adopted by colonial
powers in earlier times, which sought to acquire dominion and control over other
territories and their resources, and to exploit them for their own benefit. The
settlements and their associated regime offer irrefutable proof of Israel’s intention
to colonize and maintain permanent possession of the Palestinian territory that it
has occupied for the past 56 years.
3.5. As documented in both Parts A and B of this Chapter, Israel’s own leaders
– including a succession of Prime Ministers – have repeatedly declared that Israel
is “sovereign” in Jerusalem, and in “Judea and Samaria” (the names by which it
refers to the West Bank), and that it will never relinquish its control of these parts
of the OPT.
3.6. From 1967 to this day, Israel has confined Palestinians to only 13 % of
East Jerusalem and 40 % of the rest of the West Bank, enabling it to seize
Palestinian land to facilitate the establishment, development and expansion of its
ever-increasing number of settlements, which its leaders have publicly pledged
never to remove. In this manner, it has continually created facts on the ground
which, by virtue of their number and strategic location, aim to make its presence in
the territory and its dominion over it permanent. The Israeli official now responsible
for administration of the OPT has even given a name to this policy: “victory by
settlement”181.
3.7. To further entrench its presence in the OPT, Israel has built a vast network
of infrastructures, including the Wall and a system of roads to establish a continuum
among Israeli settlements and between the settlements and Israel, fragmenting the
Palestinian people into separate and disconnected communities and disrupting the
territorial integrity and contiguity of the land of the State of Palestine. By these
measures, Israel has imposed the forcible displacement and confinement of
Palestinians while establishing and expanding its illegal settlements, effectively
180 J. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Geneva, ICRC, 1958, p. 283 (Article 49 (6)).
181 “MK’s controversial plan nixes two-state solution, calls for annexation”, The Jerusalem
Post, 11 September 2017 (https://tinyurl.com/yp88a3uz).
I S R A E L
EGYPT
JORDAN
PALESTINE
West Bank
West Bank
Jerusalem
Green
Line
PALESTINE
Gaza Strip
Mediterranean
Sea
Dead
Sea
Jordan
River
32°N
31°N 31°N
34°E
34°E
35°E
35°E
32°N
OCCUPIED PALESTINIAN
TERRITORY
Prepared by: International Mapping
Mercator Projection WGS-84 Datum
(Scale accurate at 32°N)
25 50
25 50 75 100
0
Miles
0
Kilometers
Sources: United Nations’ Office for the Coordination of Humanitarian Affairs, (OCHA) Figure 3.1
https://www.ochaopt.org/content/west-bank-access-restrictions-may-2023
Palestinian Academic Society for the Study of International Affairs, (PASSIA)
http://www.passia.org/maps/view/60
49
51
grabbing maximum Palestinian land with minimum Palestinians on it and exposing
its occupation as a façade to facilitate the achievement of its ultimate objective: the
colonization and permanent acquisition of Palestinian territory.
3.8. Immediately following the war of June 1967, the Israeli government
began to establish its settlements in the OPT while fully aware of the categorical
prohibition on doing so, and on the acquisition of conquered territory in general,
under international law. Theodor Meron, then Legal Advisor to the Israeli Ministry
of Foreign Affairs, provided a legal opinion in September 1967 to the Government
of Israel on the illegality of these settlements. Reflecting in 2017 on his legal advice
50 years prior, Professor Meron stated:
“[T]he establishment of civilian settlements in the occupied West Bank and
other conquered territories violates the Fourth Geneva Convention related
to the protection of victims of war and, specifically, its prohibition on
settlements (Article 49 (6)). This prohibition, I wrote, is categorical and ‘not
conditioned on the motives or purposes of the transfer, and is aimed at
preventing colonialization on conquered territory by citizens of the
conquering state.’ … With reference to the position of the government of
Israel that the West Bank was disputed territory, and therefore not ‘occupied
territory,’ I opined that this position had not been accepted by the
international community, which regards the territory concerned as normal
occupied territory. Israeli settlements in the area of ‘Etzion Bloc’ would be
viewed as evidence of an intent to annex that area, I warned.”182
3.9. Since then, Israel has continued its policies and practices aimed at
exercising permanent dominion over the OPT, including East Jerusalem, despite
being condemned repeatedly by the international community for doing so, including
in numerous Security Council and General Assembly resolutions. In 2016, the
Security Council, in its resolution 2334, “guided by the purposes and principles of
the Charter of the United Nations”, and “reaffirming, inter alia, the inadmissibility
of the acquisition of territory by force”, condemned “all measures aimed at altering
the demographic composition, character and status of the Palestinian Territory
occupied since 1967, including East Jerusalem, including, inter alia, the
construction and expansion of settlements, transfer of Israeli settlers, confiscation
of land, demolition of homes and displacement of Palestinian civilians, in violation
of international humanitarian law and relevant resolutions”. The Council further
182 T. Meron, “The West Bank and International Humanitarian Law on the Eve of the Fiftieth
Anniversary of the Six-Day War”, American Journal of International Law, Vol. 111, 2017, No. 2,
p. 358 (footnotes omitted).
52
reaffirmed “that the establishment by Israel of settlements in the Palestinian
territory occupied since 1967, including East Jerusalem, has no legal validity and
constitutes a flagrant violation under international law and a major obstacle to the
achievement of the two-State solution and a just, lasting and comprehensive peace;”
and it reiterated “its demand that Israel immediately and completely cease all
settlement activities in the occupied Palestinian territory, including East Jerusalem,
and that it fully respect all of its legal obligations in this regard”. The Council
expressly recalled the Court’s Advisory Opinion of 9 July 2004, thus highlighting
its importance183.
3.10. More recently, in December 2022, the General Assembly, in its
resolution 77/126, stressed “that the occupation of a territory is to be a temporary,
de facto situation, whereby the occupying Power can neither claim possession nor
exert its sovereignty over the territory it occupies”; and recalled “in this regard the
principle of the inadmissibility of the acquisition of land by force and therefore the
illegality of the annexation of any part of the Occupied Palestinian Territory,
including East Jerusalem, which constitutes a breach of international law,
undermines the viability of the two-State solution and challenges the prospects for
a just, lasting and comprehensive peace settlement”. The Assembly also expressed
“its grave concern at recent statements calling for the annexation by Israel of areas
in the Occupied Palestinian Territory;” and condemned “in this regard settlement
activities in the Occupied Palestinian Territory, including East Jerusalem, and in
the occupied Syrian Golan and any activities involving the confiscation of land, the
disruption of the livelihood of protected persons, the forced transfer of civilians and
the annexation of land, whether de facto or through national legislation”184.
3.11. This Chapter demonstrates that the breaches committed by Israel of the
rules governing the law of occupation have been undertaken in deliberate pursuit of
an overall objective that violates the cardinal principle derived from Article 2 (4) of
the United Nations Charter, the cornerstone of the post-World War II international
law-based order: the inadmissibility of the acquisition of territory by force. As
shown below, acquisition of the OPT is the raison d’être of the occupation itself.
183 Security Council, Resolution 2334 (2016), 23 December 2016, preamble.
184 General Assembly, Resolution 77/126, 12 December 2022, paras. 7 and 8.
53
Part A.
ISRAEL’S ANNEXATION OF JERUSALEM AND CHANGES TO
ITS DEMOGRAPHIC COMPOSITION, CHARACTER AND STATUS
3.12. Israel captured East Jerusalem by armed force in June 1967 and, before
the end of that month, formally annexed it by binding it with West Jerusalem –
which Israel had controlled since unlawfully seizing it by military force in 1948 –
and integrating the entirety of the Holy City into the Israeli State. In the words of
its Defense Minister at the time, General Moshe Dayan:
“The Israeli Defense Forces have liberated Jerusalem. We have reunited …
the capital of Israel. We have returned to this most sacred shrine, never to
part from it again.”185
3.13. The 1967 annexation was not limited to East Jerusalem itself; it extended
broadly into adjacent Palestinian areas in the occupied West Bank, encompassing
more than 70 square kilometres. Following this, Israel enacted laws to formalize
the annexation, aiming to make it irreversible. Israeli leaders themselves have
repeatedly declared the annexation of Jerusalem and its environs to be permanent
and proclaimed that Israel would never divest itself of any part of the Holy City
under any circumstances. In the words of its current Prime Minister: “We will
forever keep Jerusalem united under Israel’s sovereignty.”186
3.14. To ensure that this would be the case, Israel has filled the annexed
territory with more than 230,000 Israeli settlers – a number which continues to grow
– and by this transfer of its own population, it has radically changed the
demographic composition and character of Jerusalem and its environs to ensure an
Israeli Jewish majority. The location of these settlements aims at encircling the city
to sever it from its Palestinian environment. At the same time, and for the same
purpose, Israel has forcibly displaced thousands of Palestinians from the City by
revoking their residency, refusing to grant building permits, demolishing their
homes and colluding with settler organizations to drive them out of the city and
force them to relocate elsewhere in the West Bank or outside of the OPT. To further
185 United Nations Committee on the Exercise of the Inalienable Rights of the Palestinian
People, The Status of Jerusalem, New York, United Nations, 1997, p. 12 (footnote omitted)
(https://tinyurl.com/24nbfype).
186 Israel Prime Minister’s Office, “PM Netanyahu’s Remarks at the State Ceremony at
Ammunition Hill Marking 48 Years to the Reunification of Jerusalem”, 17 May 2015 (emphasis
added) (https://tinyurl.com/ycx7j3nk).
54
strengthen its hold, Israel has built infrastructure – roads, transmission lines and
access to water – that tightly bind East and West Jerusalem to each other and to
Israel itself, and it has extended the Wall that the Court declared illegal in 2004,
further severing Jerusalem from the rest of Palestine, removing entire Palestinian
communities from the City and entrenching the annexation even more deeply.
3.15. Israel’s annexation of Jerusalem and its environs was, and remains, a
flagrant breach of international law. It violates the United Nations Charter and the
well-established rule of law prohibiting the acquisition of territory by military
conquest, as recognized in multiple resolutions by the General Assembly and the
Security Council. As early as 4 July 1967, the General Assembly adopted
resolution 2253 (ES-V), without objection by any Member State, declaring that it
was “[d]eeply concerned at the situation prevailing in Jerusalem as a result of the
measures taken by Israel to change the status of the City,” which it deemed
“invalid”. The resolution called upon Israel “to rescind all measures already taken
and to desist forthwith from taking any action which could alter the status of
Jerusalem”187.
3.16. On 21 May 1968, the Security Council adopted resolution 252 which
“[r]eaffirm[ed] that acquisition of territory by military conquest is inadmissible”
and “[d]eplore[d] the failure of Israel to comply with the General Assembly
resolutions” of July 1967. The Security Council’s resolution declared that “all
legislative and administrative measures and actions taken by Israel, including
expropriation of land and properties thereon, which tend to change the legal status
of Jerusalem are invalid and cannot change that status”, and urgently called upon
Israel “to rescind all such measures already taken and to desist forthwith from
taking any further action which tends to change the status of Jerusalem”188.
3.17. As detailed below, similar resolutions, and others condemning Israel’s
construction of settlements in East Jerusalem, were adopted by the General
Assembly and/or the Security Council in 1968, 1969, 1971, 1973, 1974, 1975, 1976,
1977, 1978, 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988, 1989,
1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002,
2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015,
2016, 2017, 2018, 2019, 2020, 2021 and 2022. Israel has adamantly refused to
comply with all of them and continues to flout them, including by publicly declaring
its intention to do so. Immediately following the adoption by the Security Council
of resolution 2334 (2016), for example, a representative of the Israeli Government
187 General Assembly, Resolution 2253 (ES-V), 4 July 1967, para. 2.
188 Security Council, Resolution 252 (1968), 21 May 1968, paras. 2-3.
55
told the Security Council that the resolution was “a dark day for the Security
Council” and that “the Council has wasted valuable time and efforts condemning …
Israel for building homes in the historic homeland of the Jewish people.”189 He
likened the resolution to an attempt to “ban the French from building in Paris” and
made it clear that Israel had no intention of complying with the resolution, declaring
that “we will overcome today’s evil decree.”190
3.18. As recalled in Chapter 2 at paragraph 2.22, the Friendly Relations
Declaration stipulates that: “[t]he territory of a State shall not be the object of
acquisition by another State resulting from the threat or use of force. No territorial
acquisition resulting from the threat or use of force shall be recognized as legal.”191
Yet, that is precisely what Israel has purported to accomplish by its annexation of
the Holy City of Jerusalem, East and West, and, as shown in Part B of this Chapter,
by its annexation of the rest of the West Bank.
3.19. As explained in Chapter 2, at paragraph 2.37, the ICRC’s authoritative
commentary on Article 47 of the Fourth Geneva Convention stresses that
occupation “is essentially a temporary, de facto situation, which deprives the
occupied Power of neither its statehood nor its sovereignty”192.
3.20. Israel has repeatedly made clear that there is nothing “temporary” about
its now 56-year occupation of, annexation of, and exercise of “sovereignty” over
Jerusalem. The prevailing state of affairs is entirely inconsistent with the legal
concept of occupation. It is, instead, a blatant attempt to colonize and acquire
territory captured during wartime more than half a century ago, in violation of
international law. In a 2018 Report, the United Nations Special Rapporteur on the
situation of human rights in the Palestinian territories occupied since 1967 found
that, instead of complying with Article 47 of the Fourth Geneva Convention or the
resolutions of the General Assembly and the Security Council demanding that it
rescind all measures purporting to annex Jerusalem, Israel did exactly the opposite:
189 Security Council, 7853rd meeting, 23 December 2016, S/PV.7853, p. 15
(https://undocs.org/S/PV.7853).
190 Ibid.
191 General Assembly, Resolution 2625 (XXV), Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States, 24 October 1970, Annex.
Additionally, the Declaration on the Granting of Independence to Colonial Countries and Peoples,
adopted by the General Assembly in 1960, affirms that: “Any attempt aimed at the partial or total
disruption of the national unity and the territorial integrity of a country is incompatible with the
purposes and principles of the Charter of the United Nations” (General Assembly,
Resolution 1514 (XV), 14 December 1960, Annex).
192 J. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Geneva, ICRC, 1958, p. 275 (Article 47).
56
it “began to establish permanent demographic, structural and institutional facts on
the ground to consolidate its sovereignty claim.”193 In particular:
“As part of its continuing efforts to ensure that its de jure annexation of East
Jerusalem is irreversible, Israel has over the past five decades extended its
national laws and civil authority to the occupied section of the city; issued
numerous declarations of permanent sovereignty; transformed the physical
features and historic character of East Jerusalem; moved some of its national
institutions, including the Ministry of Justice; and embarked upon an
intensive programme of creating and expanding Israeli settlements.”194
3.21. In 2020, the Special Rapporteur further observed that “Israel has
continued to intensify its annexation of East Jerusalem” and noted that the Prime
Minister of Israel had “proclaim[ed] … that the Government had successfully
accomplished its annexation of East Jerusalem in the face of great international
opposition.”195 In 2022, the Special Rapporteur concluded that:
“The occupation by Israel has been conducted in profound defiance of
international law and hundreds of United Nations resolutions, with scant
pushback from the international community. Its 55-year-old occupation
burst through the restraints of temporariness long ago. Israel has
progressively engaged in the de jure and de facto annexation of occupied
territory.”196
3.22. One year later, at the filing of this Written Statement, Israel has
continued to breach its legal obligations, and to violate the resolutions of the
General Assembly and Security Council. Its unlawful annexation of the Holy City
of Jerusalem remains as deeply entrenched, and as unlawful, as ever.
3.23. The remainder of this Part of this Chapter, which is divided into five
Sections, sets out the facts demonstrating that Israel has annexed all of Jerusalem
and its environs with the intention of incorporating the entire City permanently into
the Israeli State.
193 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 34 (https://undocs.org/A/73/447).
194 Ibid., para. 37 (footnote omitted).
195 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2020, A/75/532, para. 42 (footnote omitted)
(https://undocs.org/A/75/532).
196 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 11 (footnote omitted)
(https://undocs.org/A/HRC/49/87).
57
3.24. Section I describes the laws and administrative orders that Israel has
enacted and issued declaring and exercising Israeli “sovereignty” over Jerusalem
and its environs. Section II compiles official statements issued by Israeli leaders
declaring Israel’s “sovereignty” over the whole of Jerusalem, and its determination
to maintain the City forever as an inseparable part of the Israeli State. Section III
details the establishment of 14 Israeli settlements, with more than 230,000 Israeli
settlers, in East Jerusalem and adjacent areas, and the forcible displacement of
thousands of Palestinians, for the purpose of creating a Jewish Israeli majority,
permanently changing the character and status of Holy City, and cementing it as an
integral part of Israel. Section IV describes other measures Israel has taken to
further bind East Jerusalem to West Jerusalem and itself, and to sever the Holy
City’s links with the rest of Palestine, including infrastructure projects to connect
and fully integrate it with Israel itself, and extension of the Wall that was the subject
of the Court’s 2004 Advisory Opinion, and which now, two decades later, encloses
the entirety of Jerusalem and its environs on what Israel considers its side.
Section V describes how Israel’s annexation of Jerusalem and the specific measures
of governance it has adopted and implemented there have infringed upon its
character and status in violation of international law.
3.25. All these facts, in all five Sections, are abundantly addressed by
resolutions of the Security Council and the General Assembly and documented by
reports from authoritative United Nations agencies, independent experts and other
highly reliable sources, as well as reflected in statements against interest by the
Israeli government and its senior officials.
I. Israel’s Laws, Regulations and Administrative Orders Annexing and
Asserting “Sovereignty” over Jerusalem
A. THE SPECIAL CHARACTER AND STATUS OF JERUSALEM
3.26. The Holy City of Jerusalem enjoys a unique historical and religious
character, as sacred for the three monotheistic religions: Islam, Christianity and
Judaism. The United Nations has described it as “a city of unique cultural and
religious depth and texture” which “throughout history … has been at the
crossroads of cultures and civilizations”197. Citing the “unique spiritual and
religious interests located in the city”, the General Assembly, on
197 United Nations Committee on the Exercise of the Inalienable Rights of the Palestinian
People, The Status of Jerusalem, New York, United Nations, 1997, p. 3
(https://tinyurl.com/24nbfype).
58
29 November 1947, recommended in resolution 181 (II) the creation of a “corpus
separatum” placing Jerusalem under “a special international regime” which “shall
be administered by the United Nations”198.
3.27. In the course of the Nakba, in 1947-1949, Israeli military forces seized
West Jerusalem by force. At the cessation of hostilities, Palestinian and Arab forces
maintained control over East Jerusalem, including the Old City.
3.28. On 11 December 1948, the General Assembly adopted resolution
194 (III) in which it:
“[r]esolve[d] that, in view of its association with three world religions, the
Jerusalem area, including the present municipality of Jerusalem plus the
surrounding villages and towns … should be accorded special and separate
treatment from the rest of Palestine and should be placed under effective
United Nations control” and
“[i]nstruct[ed] the Conciliation Commission to present to … the General
Assembly detailed proposals for a permanent international regime for the
Jerusalem area … consistent with the special international status of the
Jerusalem area”199.
3.29. The following year, 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”. The resolution
reiterated the General Assembly’s 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): (1) the City
of Jerusalem shall be established as a corpus separatum under a special
international regime and shall be administered by the United Nations …”200.
3.30. In the more than seven decades since these resolutions were adopted, the
General Assembly and Security Council have adopted numerous other resolutions
which demanded an end to Israel’s violations of international law in and vis-à-vis
198 General Assembly, Resolution 181 (II), 29 November 1947, Part III, section A and section
C, para. 1, of the Plan of Partition with Economic Union.
199 General Assembly, Resolution 194 (III), 11 December 1948, para. 8.
200 General Assembly, Resolution 303 (IV), 9 December 1949, para. 1 (footnotes omitted).
59
Jerusalem and reaffirmed the need to protect the special character and status of the
Holy City. In 1980, for example, the Security Council adopted resolution 476
which, amongst other things, emphasized “the specific status of Jerusalem and, in
particular, the need to protect and preserve the unique spiritual and religious
dimension of the Holy Places in the city” and stressed that Israel, then in control of
the entire city, must not “chang[e] the physical character, demographic
composition, institutional structure and the status of the Holy City”201. In
subsequent resolutions, the Security Council and the General Assembly emphasized
the obligations of States not to undertake any action that would condone or
contribute to Israel’s efforts to alter the character and status of the City202.
B. ISRAEL’S LAWS AND OTHER MEASURES ANNEXING WEST JERUSALEM
3.31. Following its establishment on 15 May 1948, Israel began to enact laws
integrating West Jerusalem into its territory. On 2 August 1948, as the war raged
on, Israel’s Defence Minister issued a proclamation that “the area of Jerusalem,
including most of the city, part of its environment and western approaches, is held
by the Defence Army of Israel which is under my authority,” and that “[t]he law of
the State of Israel prevails in the administered area”203.
3.32. Six weeks later, on 16 September 1948 Israel promulgated the Area of
Jurisdiction and Powers Ordinance No. 29 of 5708, which provided that: “Any law
applying to the whole of the State of Israel shall be deemed to apply to the whole
of the area including both the area of the State of Israel and any part of Palestine
which the Minister of Defense has defined by proclamation as being held by the
Defence Army of Israel.”204 The Ordinance thus confirmed and enshrined the
application of Israeli law to West Jerusalem205.
201 Security Council, Resolution 476 (1980), 30 June 1980, preamble.
202 See, e.g., Security Council, Resolution 478 (1980), 20 August 1980; General Assembly,
Resolution ES-10/19, 21 December 2017.
203 Government Proclamation, Jerusalem Declared Israel-Occupied City, Official Gazette, No.
12, 2 August 1948 (https://tinyurl.com/4s4cukj9).
204 Area of Jurisdiction and Powers Ordinance No. 29 of 5708-1948, Official Gazette, No. 23,
22 September 1948. See Laws of the State of Israel. Authorised Translation from the Hebrew, Vol. I
(Ordinances, 5708-1948) (https://tinyurl.com/ycx3h2c4), p. 64. The Ordinance stipulated in
Article 3 that it applied “retroactively” from 15 May 1948.
205 As Professor Ruth Lapidoth of the Hebrew University of Jerusalem has explained: “The
application of Israeli law to the western sector of Jerusalem was ensured by proclamations made by
the Minister of Defence in 1948 and by the Areas of Jurisdiction and Powers Ordinance, 1948.” (R.
Lapidot, “Jerusalem – The Legal and Political Background”, Justice, Autumn 1994, No. 3
(published online 30 June 1998) (https://tinyurl.com/yax8cpj3).
60
3.33. On 5 December 1949, the Prime Minister of Israel, David Ben-Gurion,
declared that: “Jewish Jerusalem is an organic and integral part of the State of
Israel”206. One week later, on 13 December 1949, he declared in the Knesset that
“Israel has, and will have, only one capital, Eternal Jerusalem”207. The following
month, on 23 January 1950, “the Israeli Knesset proclaimed Jerusalem as the
capital of Israel and began moving Government offices into the City.”208 From then
until the 1967 war, Israel maintained its capital in West Jerusalem, asserted its
“sovereignty” over that part of the Holy City, and regarded it as an integral and
permanent part of the Israeli State, notwithstanding the numerous General
Assembly and Security Council resolutions condemning and urging rescission of
all Israeli actions intended to change the character or status of the Holy City.
C. ISRAEL’S LAWS AND OTHER MEASURES ANNEXING EAST JERUSALEM
3.34. Following the Defence Minister’s announcement on 7 June 1967, once
again in the midst of war, that Israeli military forces had “reunited” the City, “never
to part from it again”209, Israel took prompt steps, through the enactment of
legislation and the promulgation of administrative ordinances and orders to annex
East Jerusalem, bind it with West Jerusalem and proclaim Israeli “sovereignty” over
the entire Holy City.
3.35. On 27 June 1967, the Knesset amended the 1948 Law and
Administration Ordinance210 by introducing a new provision stating that:
“The law, jurisdiction and administration of the State shall extend to any
area of Eretz Israel [the ‘Land of Israel’] designated by the Government by
order.”211
206 Quoted in “The Knesset’s Anniversary: Early Years”, at
https://main.knesset.gov.il/en/about/pages/birthday/birthday.aspx.
207 Quoted in “This Week in Haaretz 1949 Jerusalem Is Declared the Eternal Capital of Israel”,
Haaretz, 16 December 2010 (https://tinyurl.com/3c97pj6c).
208 United Nations Committee on the Exercise of the Inalienable Rights of the Palestinian
People, The Status of Jerusalem, New York, United Nations, 1997, p. 11
(https://tinyurl.com/24nbfype).
209 United Nations Committee on the Exercise of the Inalienable Rights of the Palestinian
People, The Status of Jerusalem, New York, United Nations, 1997, p. 12 (footnote omitted)
(https://tinyurl.com/24nbfype).
210 Law and Administration Ordinance No. 1 of 5708-1948, Official Gazette, No. 2,
21 May 1948 (Vol. II, Annex 1).
211 Law and Administration Ordinance (Amendment No. 11) Law, 5727-1967, Article 1
(https://tinyurl.com/yf3fjy7n) (See also Vol. II, Annex 4).
61
3.36. On the same day, the Knesset enacted further legislation which provided
that the Minister of the Interior “may, at his discretion … enlarge, by proclamation,
the area of a particular municipality by the inclusion of an area designated by
order …”212.
3.37. One day later, on 28 June 1967, Israel’s Minister of the Interior exercised
the powers conferred on him by the Knesset the previous day by promulgating
official Orders which expressly applied the “law, jurisdiction and administration of
the State” to East Jerusalem213, and which expanded the borders of Jerusalem to
include adjacent territory seized by Israeli military forces214. On the same day, the
Knesset enacted further legislation – the Municipalities Ordinance (Declaration on
the Enlargement of Jerusalem’s City Limits) – providing statutory support for the
Minister’s Orders. The new Municipalities Ordinance declared that the boundaries
of the “Jerusalem Municipality” – encompassing East as well as West Jerusalem –
within which the “law, jurisdiction and administration” of the State of Israel would
apply, were officially extended to include the adjacent territory designated by the
Minister215.
3.38. As a result of these legislative and administrative measures, East
Jerusalem was not only placed under Israeli “law, jurisdiction and administration,”
but at one stroke enlarged from an area of 6.5 square kilometres to more than 70
square kilometres – an elevenfold expansion deep into the West Bank, made
possible by Israel’s military conquest earlier that month216. Figure 3.2 at p. 63
below depicts East Jerusalem before and after its enlargement by Israel in
June 1967.
212 Municipalities Ordinance (Amendment No. 6) Law, 5727-1967
(https://tinyurl.com/yf3fjy7n) (See also Vol. II, Annex 4).
213 Government and Law Procedures Ordinance No. 1 of 5727-1967, Israeli Collection of
Regulations, No. 2064, 28 June 1967, p. 2690 (Vol. II, Annex 5).
214 Order by the Minister of the Interior, Israeli Collection of Regulations No. 2063,
28 June 1967, p. 2670.
215 Municipalities Ordinance (Announcement of the Expansion of the Jerusalem Municipality
Boundaries), Israeli Collection of Regulations No. 2065, 28 June 1967, p. 2694 (Vol. II, Annex 6).
216 The Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, explains at para. 34 that “[s]everal
weeks after the military occupation of East Jerusalem and the West Bank — among other territories
— by Israel in the June 1967 war, Israel formally extended its law and administration to East
Jerusalem and 28 surrounding Palestinian villages in the West Bank, creating a much-enlarged
Jerusalem municipality. The 1967 annexation absorbed not only the 6,400 dunams of East Jerusalem
— previously ruled by Jordan — but also 65,000 dunams in the West Bank, attaching them to the
38,000 dunams belonging to West Jerusalem.” (https://undocs.org/A/73/447).
62
3.39. The objective of these Israeli measures – namely, the assertion of Israeli
“sovereignty” over East Jerusalem and its environs, and integration of the newlyconquered
territory area with West Jerusalem – was unambiguous. In the Knesset,
at the first reading of the 1967 amendment to the 1948 Law and Administration
Ordinance, Israel’s Minister of Justice called the measure “a clear act of
sovereignty” and sought its adoption on that basis:
“It is the Government’s opinion... that in addition to the control exercised
by the I[sraeli].D[efense].F[orces], a clear act of sovereignty exercised by
the state is necessary for the application of the law of the state in such a
territory … Consequently, the government decided to request that the
Knesset pass the law that I am proposing, determining that the law,
jurisdiction and administration of the state shall apply to any part of Eretz
Israel designated by the government by order.”217
3.40. The purpose of the legislation has been confirmed repeatedly by Israel’s
highest courts. As explained by the President of Israel’s Supreme Court:
“The significance of this amendment to the law, together with the Order
based upon it, is that, in addition to the military control of the Israel Defense
Forces, in the words of the Minister of Justice in the Knesset session in
which the draft of the amendment was brought for a first reading, ‘a clear
act of sovereignty [was taken] by the Government, so that Israeli law would
apply to this area’ …”218.
3.41. Israel’s High Court of Justice has further explained, in regard to the 1967
amendment to the 1948 law, that: “the legislative intention was to authorize the
government to annex the territories of Palestine to the state of Israel”, such that
East Jerusalem and its environs “was annexed to the State of Israel and constitutes
part of its area”219. As observed by the former Deputy Attorney General of Israel,
217 Quoted by A. Maoz, “Application of Israeli Law to the Golan Heights Is Annexation”,
Brooklyn Journal of International Law, Vol. 20, 1994, No. 2, pp. 355-396, at pp. 359-360.
218 H.C.J. 223/67, Ben-Dov v. Minister of Religious Affairs, [22] 1 P.D. 440 (1968), pp. 441-
442 (emphasis added); see International Law Reports, Vol. 47, 1974, pp. 472-476. This passage is
quoted in the judgment of the High Court of Israel in H.C.J 4185/90, Temple Mount Faithful
Association v. Attorney General, [47] 5 PD 221 (1993) H.C.J. 4185/90 Temple Mount Faithful
Association v. Attorney General (1993), 47(5) PD 221, in Catholic University Law Review, Vol. 45,
1996, pp. 886-939.
219 H.C.J. 283/69, Ravidi v. Military Court, Hebron Zone, [24] 2 P.D. 419 (1969), p. 424 (as
quoted in A. Maoz, “Application of Israeli Law to the Golan Heights Is Annexation”, Brooklyn
Journal of International Law, Vol. 20, 1994, No. 2, pp. 361-362) (emphasis added).
Green Line
Old
City
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Grerer en Linini e
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Israel’s unilateral expansion
Israel’s unilateral expansion
of East Jerusalem’s limits
of West Jerusalem’s limits
Prepared by: International Mapping
Mercator Projection
WGS-84 Datum
(Scale accurate at 36°N)
ISRAEL’S UNILATERAL
EXPANSION OF JERUSALEM
AFTER JUNE 1967
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Miles
0 1 2 3 4 5 6
Kilometers
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Jerusalem
Green Line
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Jerusalem
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JERUSALEM PRIOR TO ISRAEL’S
UNILATERAL EXPANSION
Source: Palestinian Academic Society for the Study of International Affairs, (PASSIA) Figure 3.2
http://www.passia.org/maps/view/60
63
65
Yoram Bar-Sela, Israel’s highest courts have “stated more than once” that the 1967
Amendment and Administrative Order effectively carried out “the annexation of
East Jerusalem by the State of Israel”220.
3.42. On 4 July 1967, less than a week after Israel’s measures to annex East
Jerusalem were taken, the General Assembly adopted a resolution declaring them
“invalid,” and calling upon Israel “to rescind all measures already taken and to
desist forthwith from taking action which could alter the status of Jerusalem”221.
Not a single Member State voted against this resolution222. Israel, nevertheless,
refused to comply. This led the General Assembly to adopt a second resolution ten
days later223. During the debate that preceded it, Israel’s measures were condemned
by numerous States as an unlawful “annexation” of East Jerusalem and its
environs224. The United States, for example, observed that the resolution “accept[s],
by its call for rescission of measures, that the administrative measures which were
taken constitute annexation of Jerusalem by Israel”225. The resolution, adopted with
no votes in opposition226, “[d]eplore[d] the failure of Israel” to comply with the
previous resolution of 4 July 1967, reiterated the demand that Israel “rescind all
measures already taken” and “desist forthwith from taking any action which would
alter the status of Jerusalem”227.
3.43. Again, Israel refused to comply. The Secretary-General’s report to the
General Assembly, on 12 September 1967, stated that:
“In the numerous conversations which the Personal Representative had with
Israel leaders, including the Prime Minister and the Minister for Foreign
Affairs, it was made clear beyond any doubt that Israel was taking every
step to place under its sovereignty those parts of the city which were not
controlled by Israel before June 1967. The statutory bases for this had
already been created, and the administrative authorities had started to
apply Israel laws and regulations in those parts of the city … The Israeli
220 Bar-Sela, “Law Enforcement in the Eastern Sector of Jerusalem”, in O. Ahimeir, Jerusalem
– Aspects of Law, 2nd revised edition, Jerusalem: Jerusalem Institute for Legal Studies, Discussion
Paper No. 3, 1983, p. xix (emphasis added).
221 General Assembly Resolution 2253 (ES-V), 4 July 1967.
222 A total of 99 States voted in favour of the Resolution, 20 States abstained and none voted
against it.
223 General Assembly, Resolution 2254 (ES-V), 14 July 1967.
224 General Assembly, Official records: Fifth Emergency Special Session (1967), A/PV.1554.
225 Ibid., para. 102 (emphasis added).
226 A total of 99 States voted in favour of the resolution, 18 States abstained and none voted
against it.
227 General Assembly, Resolution 2254 (ES-V), 14 July 1967, paras. 1-2.
66
authorities stated unequivocally that the process of integration was
irreversible and not negotiable.”228
3.44. On 21 May 1968, the Security Council joined the General Assembly in
condemning Israel’s unlawful annexation of Jerusalem. Resolution 252, adopted on
that date, “[r]eaffirm[ed] that acquisition of territory by military conquest is
inadmissible” and “[d]eplore[d] the failure of Israel to comply with the General
Assembly resolutions” passed in July 1967. The Security Council echoed the
General Assembly in declaring that “all legislative and administrative measures and
actions taken by Israel, including expropriation of land and properties thereon,
which tend to change the legal status of Jerusalem are invalid and cannot change
that status”. Resolution 252 “[u]rgently call[ed] upon Israel to rescind all such
measures already taken and to desist forthwith from taking any further action which
tends to change the status of Jerusalem”229. Israel violated the Security Council’s
resolution, just as it dismissed the resolutions adopted by the General Assembly the
year before.
3.45. The Security Council remained seized of the matter, and it refused to
accept Israel’s annexation of Jerusalem. On 3 July 1969, it adopted resolution 267,
which “[d]eplore[d] the failure of Israel to show any regard to the resolutions of
the General Assembly and the Security Council” and “censure[d] in the strongest
terms all measures taken to change the status of the City of Jerusalem”. The
resolution “[u]rgently call[ed] once more upon Israel to rescind forthwith all
measures taken by it which may tend to change the status of the City of Jerusalem”
and to refrain from any further such actions230.
3.46. Faced with Israel’s continued defiance, on 25 September 1971, the
Security Council adopted resolution 298 which, once again, “[d]eplore[d]” Israel’s
failure to respect the previous resolutions concerning measures which purported to
affect the status of the Holy City of Jerusalem. The resolution “[c]onfirm[ed] in the
clearest possible terms that all 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”. The Security
Council once more “[u]rgently call[ed] upon Israel to rescind all previous measures
228 Report of the Secretary-General under General Assembly Resolution 2254 (ES-V) Relating
to Jerusalem, S/9146, 12 September 1967, paras. 33 and 35 (emphasis added)
(https://tinyurl.com/26ju55f6).
229 Security Council, Resolution 252 (1968), 21 May 1968, para. 3.
230 Security Council, Resolution 267 (1969), 3 July 1969, para. 5.
67
and actions and to take no further steps in the occupied section of Jerusalem which
may purport to change the status of the City …”231. Once more, Israel ignored those
calls and violated the resolution, as it did all the resolutions that preceded it.
3.47. During the years that followed, the General Assembly and Security
Council adopted further resolutions which continued to make clear that Israel’s
actions in East Jerusalem and its environs constituted an unlawful annexation. For
example, on 29 November 1974, the General Assembly adopted resolution 3240,
which stated:
“The General Assembly,
.......................................................................................................................
3. Expresses the gravest concern at the continued and persistent disregard
by Israel of the Geneva Convention relative to the Protection of Civilian
Persons in Time of War, of 12 August 1949, and other applicable
international instruments, in particular the following violations:
(a) The annexation of parts of the occupied territories;
(b) The establishment of Israeli settlements therein and the transfer of an
alien population thereto;
(c) The destruction and demolition of Arab houses, villages and towns;
.......................................................................................................................
4. Declares that those policies of Israel constitute not only a direct
contravention to, and violation of, the purposes and principles of the Charter
of the United Nations, in particular the principles of sovereignty and
territorial integrity, the principles and provisions of the applicable
international law concerning occupation and the basic human rights of the
people, but also an impediment to the establishment of a just and lasting
peace;
.......................................................................................................................
7. Demands that Israel desist forthwith from the annexation and
colonization of the occupied Arab territories …”232
231 Security Council, Resolution 298 (1971), 25 September 1971, para. 4.
232 General Assembly, Resolution 3240 A (XXIX), 29 November 1974 (emphasis added).
68
3.48. In December 1975, the General Assembly adopted resolution 3414
which referred to the “principles of international law which prohibit the occupation
or acquisition of territory by the use of force and which consider any military
occupation, however temporary, or any forcible annexation of such territory, or part
thereof, as an act of aggression”. The General Assembly “[c]ondemn[ed] Israel’s
continued occupation of Arab territories in violation of the Charter of the United
Nations, the principles of international law and repeated United Nations
resolutions”233. Ten days later, the General Assembly adopted Resolution 3525
which “[c]ondemn[ed], in particular … [t]he annexation of parts of the occupied
territories” and “[d]emand[ed] that Israel desist forthwith from the annexation and
colonization of the occupied Arab territories …”234.
3.49. The General Assembly adopted further resolutions “[c]ondemn[ing] …
the annexation of parts of the occupied territories” and referring to Israel’s “pursuit
of the policies of annexation and colonization” in the occupied territories each year
between 1976 and 1979235.
3.50. On 22 March 1979, the Security Council adopted resolution 446, which,
like prior resolutions, “[s]trongly deplore[d] the failure by Israel to abide with” the
previous Security Council Resolutions and General Assembly Resolutions
regarding the annexation of Jerusalem and other occupied Palestinian territories236.
The resolution:
“Call[ed] once more upon Israel, as the occupying Power, to abide
scrupulously by the Geneva Convention relative to the Protection of
Civilian Persons in Time of War, of 12 August 1949, to rescind its previous
measures and to desist from taking any action which would result in
changing the legal status and geographical nature and materially affecting
the demographic composition of the Arab territories occupied since 1967,
including Jerusalem, and, in particular, not to transfer parts of its own
civilian population into the occupied Arab territories”237.
233 General Assembly, Resolution 3414 (XXX), 5 December 1975, para. 2.
234 General Assembly, Resolution 3525 A (XXX), 15 December 1975, paras. 5 and 9
(emphasis added).
235 General Assembly, Resolutions 31/106 C, 16 December 1976; 32/91 C,
13 December 1977; 33/113 C, 18 December 1978; 34/90 A, 12 December 1979.
236 Security Council, Resolution 446 (1979), 22 March 1979.
237 Ibid, para. 3.
69
D. ISRAEL’S ENACTMENT OF LAWS DECLARING JERUSALEM TO BE
ITS “COMPLETE AND UNITED” CAPITAL
3.51. Instead of complying with international law and United Nations
resolutions, Israel took legislative steps to make permanent its annexation of
Jerusalem. In 1980, it enacted legislation which formally declared that Jerusalem
“complete and unified”, that is, East and West, is the “capital of Israel”, and which
expressly embedded that status within Israel’s quasi-constitutional law238.
3.52. Following the introduction of this legislation in the Knesset, on
30 June 1980 the Security Council adopted resolution 476, which “[d]eplor[ed] the
persistence of Israel in changing the … institutional structure and the status of the
Holy City of Jerusalem”. The Security Council declared that it was “[g]ravely
concerned about the legislative steps initiated in the Israeli Knesset with the aim of
changing the character and status of the Holy City of Jerusalem”. It urgently called
on Israel to abide by the Council’s prior resolutions and immediately cease the
legislative process leading to the adoption of measures affecting the status of
Jerusalem239.
3.53. Despite the unequivocal demand of the Security Council, less than six
weeks later, on 5 August 1980, the Knesset enacted the Basic Law: Jerusalem,
Capital of Israel (1980) (“the 1980 Basic Law”). Article 1 of the 1980 Basic Law
provided:
“The complete and united Jerusalem is the capital of Israel.”240
3.54. The purpose of the 1980 Basic Law, according to the members of the
Knesset who proposed and sponsored it, was to secure “both the status of Jerusalem
as the capital of Israel and the unification and integrity of Greater Jerusalem”241. As
explained by the Supreme Court of Israel:
238 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 35 (https://undocs.org/A/73/447).
239 Security Council, Resolution 476 (1980), 30 June 1980.
240 Basic Law: Jerusalem, Capital of Israel, Israeli Collection of Regulations, 5740-1980
(Vol. II, Annex 7).
241 Quoted in B’Tselem, The Israeli Information Center for Human Rights in the Occupied
Territories, A Policy of Discrimination, Land Expropriation, Planning and Building in East
Jerusalem, Jerusalem, January 1997, p. 12, fn 10 (https://tinyurl.com/2ekthfw9).
70
“The legislation of the State of Israel and the rulings of this Court establish
that Jerusalem, entire and undivided, is the capital of Israel … and the law,
jurisdiction, and administration of the State of Israel apply to it.”242
3.55. According to the Supreme Court of Israel, these laws:
“have established the sovereignty of the State of Israel over whole and
united Jerusalem, as the capital of Israel …”243.
3.56. Israel’s enactment of the 1980 Basic Law triggered further rounds of
international condemnation. On 20 August 1980, the Security Council adopted
resolution 478, which “[c]ensure[d] in the strongest terms the enactment by Israel
of the ‘basic law’ on Jerusalem and the refusal to comply with relevant Security
Council resolutions”. The resolution affirmed that “the enactment of the ‘basic law’
by Israel constitutes a violation of international law” and determined 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, and in particular the recent ‘basic law’ on Jerusalem, are null and
void and must be rescinded forthwith”244.
3.57. On 10 December 1981, the General Assembly adopted resolution
36/120, which “demand[ed] that Israel should fully comply with all the resolutions
of the United Nations relevant to the historic character of the Holy City of
Jerusalem, in particular Security Council resolutions 476 (1980) of 30 June 1980
and 478 (1980) of 20 August 1980” and “reject[ed] the enactment of a ‘Basic Law’
by the Israel Knesset proclaiming Jerusalem as the capital of Israel”245. The
resolution further demanded that Israel withdraw from all of the Palestinian
territories it seized by military force in 1967, including East Jerusalem.
3.58. On 19 December 1983, the General Assembly adopted resolution 38/180
which “[d]eclare[d] all Israeli policies and practices of, or aimed at, annexation of
the occupied Palestinian and other Arab territories, including Jerusalem, to be
illegal and in violation of international law and of the relevant United Nations
resolutions” and “[d]eclare[d] once more that Israel’s decision to impose its laws,
jurisdiction and administration on the Holy City of Jerusalem is illegal and therefore
242 H.C.J. 4185/90 (1993), 47(5) PD 221, in Catholic University Law Review, Vol. 45, 1996,
p. 938 (emphasis added).
243 Ibid., p. 920.
244 Security Council, Resolution 478 (1980), 20 August 1980, paras. 2-3.
245 General Assembly, Resolution 36/120 D, 10 December 1981, para. 6.
71
null and void and has no validity whatsoever”246. The General Assembly also
adopted resolutions which “[d]etermine[d] that Israel’s decision to annex
Jerusalem and to declare it as its ‘capital’ as well as the measures to alter its physical
character, demographic composition, institutional structure and status are null and
void” and “demand[ed] that they be rescinded immediately” each year between
1984 and 1991247.
3.59. Each year between 1992 and 2000 the General Assembly adopted
resolutions which stated that the General Assembly “[d]etermine[d] that the
decision of Israel to impose its laws, jurisdiction and administration on the Holy
City of Jerusalem is illegal and therefore null and void and has no validity
whatsoever”248.
3.60. As before, Israel responded to the resolutions of the Security Council and
General Assembly by doing precisely the opposite of what was demanded. Instead
of repealing the 1980 Basic Law, it enacted new legislative measures aimed at
further entrenching its annexation of East Jerusalem and assertion of “sovereignty”
over the entire Holy City. In particular, on 27 November 2000, the Knesset passed
legislation which amended the 1980 Basic Law (the “2000 Basic Law
Amendment”) for this very purpose. As made clear in Amendment 1, the objective
of this legislation was to make permanent the annexation of Jerusalem and prevent
its return, or any part of it, to Palestine: it was expressly designed to “prohibit the
transfer of any sort of governmental or municipal authority, relating to the territory
of Jerusalem, to any body, which does not act by force of a law of the State of
Israel.”249
3.61. The 2000 Amendment introduced a new Article 5 (headed “Area of the
jurisdiction of Jerusalem”) into the 1980 Basic Law. This new provision provided:
“the limits of Jerusalem, for the purpose of this Basic Law, the whole area
described in the addendum to the declaration of the expansion of the limits
246 General Assembly, Resolution 38/180 A, 19 December 1983, para. 4 (emphasis added) and
Resolution 38/180 C, 19 December 1983, para. 1.
247 General Assembly, Resolutions 39/146, 14 December 1984; 39/146, 14 December 1984;
40/168, 16 December 1985; 41/162, 5 December 1986; 42/209, 11 December 1987; 43/54,
6 December 1988; 44/40, 4 December 1989; 45/83, 13 December 1990; 46/82, 16 December 1991
(emphasis added).
248 General Assembly, Resolution 49/87, 16 December 1994. See also General Assembly,
Resolutions 48/59, 14 December 1993; 50/22, 4 December 1995; 51/27, 4 December 1996; 52/53,
9 December 1997; 53/37, 2 December 1998; 54/37, 1 December 1999; 55/50, 1 December 2000.
249 Basic Law: Jerusalem The Capital of Israel, Amendment No. 1 adopted on
7 December 2020 (emphasis added) (https://tinyurl.com/3sxunx7j).
72
of the Jerusalem municipality of 20 Sivan 5727 (June 28, 1967), that was
issued under the Municipalities Ordinance.”250
3.62. Article 5 therefore established by law, that “Jerusalem” – which the 1980
Basic Law proclaimed to be the “complete and united” capital of Israel – consisted
of the entirety of the territory which was incorporated into the Jerusalem
Municipality by the 28 June 1967 Ordinance issued by the Minister of the Interior,
i.e., both West and East Jerusalem and environs.
3.63. On 3 December 2001, the General Assembly once again adopted a
resolution which “[d]etermine[d] that the decision of Israel to impose its laws,
jurisdiction and administration on the Holy City of Jerusalem is illegal and therefore
null and void and has no validity whatsoever”251.
3.64. One year later, on 3 December 2002, the General Assembly reacted to
Israel’s continued assertion of “sovereignty” over Jerusalem by adopting resolution
57/111. It began by recalling the General Assembly’s previous resolutions which
“determined that all legislative and administrative measures and actions taken by
Israel, the occupying Power, which have altered or purported to alter the character
and status of the Holy City of Jerusalem, in particular the so-called ‘Basic Law’ on
Jerusalem and the proclamation of Jerusalem as the capital of Israel, were null and
void and must be rescinded forthwith”. The resolution went on to “[r]eiterate[] its
determination that any actions taken by Israel to impose its laws, jurisdiction and
administration on the Holy City of Jerusalem are illegal and therefore null and void
and have no validity whatsoever”252. The General Assembly adopted further
resolutions which repeated these affirmations and demands each year between 2003
and 2018253.
3.65. Nevertheless, in 2018, Israel enacted additional amendments aimed at
obstructing the return of any part of Jerusalem to Palestine. In that year, Article 7
of the 1980 Basic Law was amended by providing that Article 6 (“no powers
concerning the limits of the Jerusalem Municipality area … shall be transferred to
250 Basic Law: Jerusalem The Capital of Israel, as amended, Article 5
(https://tinyurl.com/3sxunx7j). See also Vol. II, Annex 7.
251 General Assembly, Resolution 56/31, 3 December 2001, para. 1.
252 General Assembly, Resolution 57/111, 3 December 2002, para. 1.
253 General Assembly, Resolutions 58/22, 3 December 2003; 59/32, 1 December 2004; 60/41,
1 December 2005; 61/26, 1 December 2006; 62/84, 10 December 2007; 63/30, 26 November 2008;
64/20, 2 December 2009; 65/17, 30 November 2010; 66/18, 30 November 2011; 67/25,
30 November 2012; 68/16, 26 November 2013; 69/24, 10 November 2014; 70/16,
24 November 2015; 71/25, 16 December 2016; 72/15, 7 December 2017; and 73/22,
4 December 2018.
73
a foreign political or governing power, or to another similar foreign authority,
whether permanently or for a given period”) could only be repealed by a Basic Law
passed by a supermajority (80 votes) of the Knesset, rather than a simple majority
(61 votes)254. Article 3 of the so-called Nation State Law further emphasized and
embedded in Israeli law that: “[t]he complete and united Jerusalem is the capital of
Israel.”255
3.66. Following these 2018 amendments, the High Commissioner for Human
Rights observed: “In qualifying ‘the complete and undivided city of Jerusalem’ as
the capital of Israel, the Nation State Law adopted on 19 July 2018 reaffirms the
illegal annexation of East Jerusalem, in violation of various Security Council
resolutions.” The High Commissioner continued:
“In stating that ‘the State of Israel considers the development of Jewish
settlement to be a national value and will act to further encourage and
promote its establishment and consolidation’, the law appears to justify the
expansion of Israeli settlements in East Jerusalem, considered by Israel as
part of its territory.”256
3.67. The Special Rapporteur on the situation of human rights in the
Palestinian territories occupied since 1967 similarly found that the 2018 Basic Law
was one of several “[r]ecent legislative initiatives at the Israeli Knesset” which were
“aimed at consolidating Israeli sovereignty over East Jerusalem and resetting the
‘demographic balance’ in the city” and which are intended “to ensure that its de
jure annexation of East Jerusalem is irreversible”257.
3.68. On 1 December 2021, the General Assembly adopted resolution 76/12.
After recalling many of its previous resolutions regarding Jerusalem, the General
254 As the Special Rapporteur on the situation of human rights in the Palestinian territories
occupied since 1967 observed in 2018: “The Basic Law previously provided that such a transfer
could occur with a simple majority vote of the Knesset. The amendment would make it more difficult
to obtain Knesset support for any peace agreement that would recognize Palestinian sovereignty
over East Jerusalem.” (Report of the Special Rapporteur on the situation of human rights in the
Palestinian territories occupied since 1967, 22 October 2018, A/73/447, para. 45
(https://undocs.org/A/73/447)).
255 Basic Law: Israel – The Nation State of the Jewish People, 19 July 2018
(https://tinyurl.com/yc2r5he3).
256 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
30 January 2019, A/HRC/40/42, para. 13 (footnotes omitted) (https://tinyurl.com/m93jkbny).
257 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, paras. 44 (footnote omitted) and 37
respectively (https://undocs.org/A/73/447).
74
Assembly “[r]eiterate[d] its determination that any actions taken by Israel, the
occupying Power, to impose its laws, jurisdiction and administration on the Holy
City of Jerusalem are illegal and therefore null and void and have no validity
whatsoever, and call[ed] upon Israel to immediately cease all such illegal and
unilateral measures”258.
3.69. Despite extensive and repeated condemnation and demands for cessation
of violations and respect for international law by the General Assembly and the
Security Council, “Israel remains non-compliant with all United Nations
resolutions on Jerusalem”259.
II. Declarations by Senior Israeli Government Officials Asserting
Israel’s “Sovereignty” over Jerusalem
3.70. Successive Israeli governments from 1967 to the present have asserted
that the entirety of the Holy City of Jerusalem (i.e., both West and East Jerusalem)
is under Israeli “sovereignty” as a result of Israel’s military conquest of West and
East Jerusalem and the laws and ordinances described above. Following are some
examples; many more can be supplied:
(a) 29 December 1969, Prime Minister Golda Meir:
“United Jerusalem will remain the capital of Israel ...”260
(b) 31 March 1976, Deputy Prime Minister and Foreign Minister Yigal Allon:
“Jerusalem, eternal capital of the Jewish people, is an inseparable part of the
sovereign State of Israel, and will never again be divided. … [U]nited
Jerusalem, capital of the State of Israel under Israeli sovereignty – is a fact
unassailable by any party.”261
(c) 14 October 1990, the Israeli Cabinet instructed the Deputy Prime Minister and
Foreign Minister of Israel to inform the Secretary-General:
258 General Assembly, Resolution 76/12, 1 December 2021, para. 1.
259 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 23 October 2017, A/72/556, para. 46 (https://undocs.org/A/72/556).
260 Ministry of Foreign Affairs, “Statement to the Knesset by Prime Minister Golda Meir”,
29 December 1969 (https://tinyurl.com/593wmkyv).
261 Ministry of Foreign Affairs, “Statement in the Knesset by Deputy Premier and Foreign
Minister Allon on the US statement in the Security Council”, 31 March 1976
(https://tinyurl.com/2s3eppu8).
75
“Jerusalem is not, in any part, ‘occupied territory’; it is the sovereign
capital of the State of Israel. Therefore, there is no room for any
involvement on the part of the United Nations in any matter relating to
Jerusalem”262.
(d) July 1992, the Government of Israel, led by Prime Minister Yitzhak Rabin,
published its official “Basic Policy Guidelines of the 25th Government”:
“Jerusalem will remain united, wholly under Israeli sovereignty.
.......................................................................................................................
United Jerusalem – the eternal capital of Israel – will remain united and
totally under Israel sovereignty.”263
(e) 22 November 1995, the Government of Israel, led by Prime Minister Shimon
Peres, published its “Basic Guidelines of the Israel Government”:
“United Jerusalem, the eternal capital of Israel, will remain united and
totally under Israel sovereignty.”264
(f) June 1996, the Government of Israel, led by Prime Minister Benjamin
Netanyahu, published its “Guidelines of the Government of Israel”:
“1. Jerusalem, the capital of Israel, is one city, whole and undivided, and
will remain forever under Israel’s sovereignty.
.......................................................................................................................
3. The Government will thwart any attempt to undermine the unity of
Jerusalem, and will prevent any action which is counter to Israel’s exclusive
sovereignty over the city.”265
262 Statement adopted by the Israeli Cabinet on 14 October 1990, quoted in the Report
Submitted to the Security Council by the Secretary-General in Accordance with Resolution 672
(1990), 31 October 1990, at p. 3 (emphasis added) (https://tinyurl.com/2fzdebbz).
263 Basic Policy Guidelines of the 25th Government – July 1992, 13 July 1992, preamble and
section 4 (emphasis added) (https://tinyurl.com/2p89uhj5).
264 Basic Policy Guidelines of the Israel Government – November 1995, 22 November 1995,
para. 3.1 (emphasis added) (https://tinyurl.com/2y8czrez).
265 Guidelines of the Government of Israel – June 1996, 18 June 1996 (emphasis added)
(https://tinyurl.com/k6pfx9cr).
76
(g) July 1999, the Government of Israel, led by Prime Minister Ehud Barak,
published its “Guidelines for the Government of Israel”:
“Greater Jerusalem, the eternal capital of Israel, will remain united and
complete under the sovereignty of Israel.”266
(h) February 2003, the Government of Israel, led by Prime Minister Ariel Sharon,
published its “Guidelines for the Government of Israel”:
“To ensure the status of Jerusalem as the capital of Israel.”267
(i) May 2006, the Government of Israel, led by Prime Minister Ehud Olmert,
published its “Guidelines for the Government of Israel”:
“It will ... act to transform Jerusalem into a political, cultural and business
center, worthy of its status as the capital of Israel and the capital of the
Jewish people.”268
(j) 19 July 2009, Prime Minister Benjamin Netanyahu:
“I would like to re-emphasize that the united Jerusalem is the capital of the
Jewish people and of the State of Israel. Our sovereignty over it is [sic]
cannot be challenged; this means – inter alia – that residents of Jerusalem
may purchase apartments in all parts of the city. This has been the policy of
all Israeli governments …”269.
(k) 8 May 2022, Prime Minister Naftali Bennett:
“[A]ll decisions regarding … Jerusalem will be made by the Government of
Israel, which is sovereign in the city, without any extraneous considerations
whatsoever. We certainly reject any foreign involvement in the decisions of
the Government of Israel [regarding Jerusalem]. … The united Jerusalem is
the capital of only one country – the State of Israel.”270
266 Guidelines of the Government of Israel – July 1999, 6 July 1999, para. 3.1 (emphasis
added) (https://tinyurl.com/bpavc4zw).
267 Basic Guidelines of the 30th Government of Israel, February 2003
(https://tinyurl.com/2c8exx2b).
268 Basic Guidelines of the 31st Government of Israel (https://tinyurl.com/spmcyds7).
269 Israel Prime Minister’s Office, “Statement by PM Netanyahu at the Weekly Cabinet
Meeting”, 19 July 2009 (https://tinyurl.com/y7fjcbd5).
270 Ministry of Foreign Affairs, “PM Bennett’s remarks at the start of the weekly Cabinet
meeting”, 8 May 2022 (https://tinyurl.com/4552f6z4).
77
(l) 31 December 2022, Prime Minister Benjamin Netanyahu, condemning the
General Assembly’s request for an Advisory Opinion from this Court as a
“despicable decision”:
“The Jewish people are not occupiers in their own land nor occupiers in our
eternal capital Jerusalem and no U.N. resolution can distort that historical
truth.”271
3.71. These repeated statements by Israel’s highest governmental authorities
over the past five decades – and many others like them that could be added to this
already long list – demonstrate that, in the view of the Israeli government itself,
Israel has unlawfully annexed Jerusalem and its environs and declared itself
“sovereign” over the entirety of the Holy City. Israel’s conduct indisputably
violates the fundamental rule of international law enshrined in the United Nations
Charter that no State may acquire territory by military conquest or by belligerent
occupation.
III. Israel’s Construction of Settlements in, and Displacement of Palestinians
from, East Jerusalem and its Environs
3.72. In order to consolidate and permanently entrench its control over the
Holy City of Jerusalem, Israel has engaged in an extensive programme of
constructing Israeli settlements in occupied East Jerusalem, which it has populated
with more than 230,000 Israeli settlers. It has also adopted an array of policies and
practices whose purpose and effect is to drive Palestinians from their homes in East
Jerusalem, thereby changing the demographic composition of the City.
A. CONSTRUCTION OF SETTLEMENTS
1. Israel’s Illegal Construction of Settlements in East Jerusalem
3.73. As the Court explained in the Wall Opinion, Article 49, paragraph 6, of
the Fourth Geneva Convention “prohibits … any measures taken by an occupying
Power in order to organize or encourage transfers of parts of its own population into
the occupied territory.”272 This prohibition serves, amongst other things, to prevent
the occupying Power from using the transportation and implantation of its own
271 “Netanyahu says Israel not bound by ‘despicable’ U.N. vote”, Reuters, 31 December 2022
(emphasis added) (https://tinyurl.com/3w3ec5a4).
272 Wall Opinion, p. 184, para. 120.
78
population as a means of gaining or consolidating permanent control over the
occupied territory, as colonial powers had done273.
3.74. Despite that prohibition, since 1967, Israel has engaged in extensive
colonization in and around East Jerusalem. There is no doubt as to the illegality of
those settlements. In the Wall Opinion, the Court concluded that: “the Israeli
settlements in the Occupied Palestinian Territory (including East Jerusalem) have
been established in breach of international law.”274
3.75. Nor is there any doubt as to Israel’s purpose in constructing these
settlements in East Jerusalem. As the Special Rapporteur has explained, this activity
has been carried out in pursuit of “the objective of … the perpetuation by Israel of
its annexation of East Jerusalem”275. In particular, “the consistent policy of Israel
since 1967 has been to secure an overwhelming Israeli Jewish majority in
Jerusalem, achieved through settler implantation …”276. In this regard:
“Early in the occupation, Israeli national and municipal leaders adopted two
official policy objectives aimed at sustaining permanent Israeli annexation
of East Jerusalem: to expand the size of the city, and thereby increase its
absorptive capacity for Israeli Jewish settlement; and to establish a targeted
‘demographic balance’ of 70 per cent Jewish Israelis and 30 per cent
Palestinians in the city.”277
3.76. Israel’s policy of changing the demographic composition in East
Jerusalem is illustrated by its “Jerusalem Master Plan”, which created a target of
maintaining a Jewish demographic majority of a 60:40 ratio, after having failed to
273 As Awn Al-Khasawneh and Ribot Hatano explained in a 1993 study for the United Nations
Economic and Social Council: “Population transfer has been conducted with the effect or purpose
of altering the demographic composition of a territory in accordance with policy objectives or
prevailing ideology, particularly when that ideology or policy asserts the dominance of a certain
group over another. The objective of population transfer can involve the acquisition or control of
territory, military conquest or exploitation of an indigenous population or its resources.” (United
Nations Economic and Social Council, “The Realisation of Economic, Social and Cultural Rights:
The Human Rights Dimensions of Population Transfer, including the Implantation of Settlers”,
6 July 1993, E/CN.4/Sub.2/1993/17, para. 17). See also J. Pictet, Commentary: IV Geneva
Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, ICRC, 1958,
p. 283 (Article 49 (6)).
274 Wall Opinion, p. 183, para. 120.
275 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 37 (https://undocs.org/A/73/447).
276 Ibid., para. 38.
277 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 38 (footnotes omitted)
(https://undocs.org/A/73/447).
79
maintain an earlier target of 70:30278. It reflects a long-planned policy composed of
numerous unlawful measures adopted by Israel in and around Jerusalem since 1967
that have led, in aggregate, to a complete alteration of the boundaries and
demographic composition of the city.
3.77. Pursuant to that policy, Israel has constructed a total of 14 official
settlements in East Jerusalem279. More than 230,000 Israelis currently live in these
settlements, and the numbers continues to grow. As a result of the settlement
programme, as of 2021 the population of the whole of Jerusalem was approximately
951,000, some 61 % of which was Israeli and 39 % of which was Palestinian280.
3.78. The policy to establish new Israeli settlements for the purpose of
consolidating Israel’s purported “sovereignty” over the Holy City was developed
and implemented shortly after East Jerusalem was occupied by Israeli military
forces in 1967. As the report of the independent international fact-finding mission
to investigate the implications of the Israeli settlements on the civil, political,
economic, social and cultural rights of the Palestinian people throughout the OPT,
including East Jerusalem (“the Independent International Fact-Finding Mission”)
explained in 2013: “The Jerusalem 1968 Master Plan, and subsequent plans
provide[d] for the building of a belt of 12 Israeli ‘neighbourhoods’ [i.e., settlements]
enveloping and bisecting the Palestinian neighbourhoods in the city.”281 The
number of settlements was later expanded to 14282.
3.79. The locations of the 14 Israeli settlements and the areas under their
control are shown in Figure 3.3 at p. 81 below. The year of establishment and the
most recent available data on approximate population of each of these settlements
are provided in footnote, below283.
278 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 44
(https://undocs.org/A/HRC/49/87).
279 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 15
(https://undocs.org/A/77/328).
280 Jerusalem Institute for Policy Research, Jerusalem Facts and Trends 2022, pp. 18-20
(https://tinyurl.com/5h463scu).
281 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, Annex I, p. 26 (footnote omitted) (https://undocs.org/A/HRC/22/63).
282 See UNOCHA, Occupied Palestinian Territory Humanitarian Atlas 2019, p. 49
(https://tinyurl.com/3zctxwky).
283 Giv’at Ha-Mivtar (1968), population data n/a; Giv’at Shapira (1968), population data n/a;
Jewish Quarter (1968), population 2,960; Maalot Dafna East (1968), population 3,260; Ramat
80
3.80. Through its establishment of these settlements, Israel has dramatically
altered the demographic composition of East Jerusalem. In 1967, there were no
Israelis living in East Jerusalem284. By 1993, after the 14 new Israeli settlements
were established285, more than 160,000 settlers were transferred to them286. Since
then, the number of Israeli settlers in occupied East Jerusalem has grown rapidly,
along with the expansion of the settlements themselves. In the ten-year period
between 1992 and 2002, the number of settlers rose to approximately 176,000287.
3.81. By 1997, as shown in Figure 3.4 at p. 83 below, a United Nations map,
Israeli settlements not only filled most of East Jerusalem but effectively surrounded
it, largely cutting it off from the rest of the West Bank.
3.82. In the last two decades, the rate of settlement construction in occupied
East Jerusalem, and the number of Israeli settlers residing in those settlements, has
increased rapidly. In 2009, the Special Rapporteur found that “tenders for new
settlement building increased by 550 per cent from 2007” and that “[s]ettlement
building around Jerusalem has increased by a factor of 38”288. By 2015, the settler
population had increased to approximately 208,000289. In 2017, the Special
Eshkol West (1968), population 1,985; Atarot Industrial Area (1970), population 0; Gillo (1971),
population 30,820; Neve Ya’akov (1972), population 21,780; East Talpiyyot (1973), population
14,380; Ramot Allon (1973), population 44,980; Ramat Shlomo (1973), population 15,070; Pisgat
Ze’ev (1985), population 41,210; Giv’at Ha-Matos (1991), population data n/a; Har Homa (1991),
population 19,950. (See UNOCHA, Occupied Palestinian Territory Humanitarian Atlas 2019, p. 49
(https://tinyurl.com/3zctxwky).
284 United Nations Committee on the Exercise of the Inalienable Rights of the Palestinian
People, The Status of Jerusalem, New York, United Nations, 1997, p. 19
(https://tinyurl.com/24nbfype).
285 All of the existing 14 settlements in East Jerusalem were established before 1993. See
UNOCHA, Occupied Palestinian Territory Humanitarian Atlas 2019, p. 49
(https://tinyurl.com/3zctxwky).
286 United Nations Committee on the Exercise of the Inalienable Rights of the Palestinian
People, The Status of Jerusalem, New York, United Nations, 1997, p. 19
(https://tinyurl.com/24nbfype).
287 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied by Israel since 1967, 25 August 2009, A/64/328, para. 41
(https://undocs.org/A/64/328).
288 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied by Israel since 1967, 25 August 2009, A/64/328, para. 39 (footnote omitted)
(https://undocs.org/A/64/328).
289 Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem,
and in the occupied Syrian Golan, 13 April 2017, A/HRC/34/39, para. 11
(https://undocs.org/A/HRC/34/39).
Old
City
Green Line
Ramot
Allon
Ramat
Shlomo
Atarot
Industrial
Area
Ramat
Eshkol
West
Maalot
Dafina
East
Property
Occupied
by Israeli
Settlers
Property
Occupied
by Israeli
Settlers
Giv’at
HaMivtar
Giv’at
Shapira
Pisgat Ze’ev
Newe
Ya’akov
East
Talpiyyot
Gillo
Giv’at
HaMatos
Har
Homa
31°50'N 31°50'N
31°46'N
31°44'N
31°52'N
31°48'N
31°46'N
31°44'N
35°14'E
35°12'E 35°14'E
35°08'E 35°10'E 35°12'E
East
Jerusalem
West
Jerusalem
Israel’s unilateral expansion
of East Jerusalem’s limits
Israel’s unilateral expansion
of West Jerusalem’s limits
Source: United Nations’ Office for the Coordination of Humanitarian Affairs, (OCHA) Figure 3.3
https://www.ochaopt.org/content/west-bank-access-restrictions-may-2023
Prepared by: International Mapping
ISRAELI SETTLEMENTS IN
EAST JERUSALEM
UTM Zone 36N Projection
WGS-84 Datum
(Scale accurate at 36°N)
0 1 2 3
Miles
0 1 2 3 4 5 6
Kilometers
Israeli Settlements Areas Under Control of
Settlements
81
“GREATER” JERUSALEM AREA
Figure 3.4
83
85
Rapporteur observed that “[e]very Israeli government since 1967 has left office
with more settlers living in the occupied territory than when it assumed office.”290
3.83. In 2021, a report by the European Union concluded that there had been
“[a] stark increase in the advancement of settlement plans … since 2017, with a
continuous rise since 2019.” The report found that 2021 had seen “an even higher
rate of settlement unit advancements in the West Bank and East Jerusalem …
enforcing the trend of continuously increasing settlement expansion on occupied
Palestinian territories.”291 The following year the European Union reported that
“[t]he number of settlement plans and tenders advanced in 2022 was higher than in
the previous year … In 2022, 23,586 units were advanced in East Jerusalem …”292.
3.84. As of July 2022, there were more than 230,000 Israelis settlers residing
in East Jerusalem293. And in early 2023, the number of Israeli settlers surpassed
233,000294.
3.85. These advisory proceedings before the Court have not diminished
Israel’s appetite for constructing more settlements in East Jerusalem. On 22 March
2023, for example, Israel published tenders for 89 new housing units in East
Jerusalem295. Less than two weeks later, on 3 April 2023, Israeli authorities
advanced plans to construct a total of 6,500 additional housing units in existing
settlements in East Jerusalem296.
3.86. In parallel with promoting a dramatic increase in the size of the settler
population, Israel has restricted the growth of Palestinian neighbourhoods in
occupied East Jerusalem, in order to limit the number of Palestinians living in the
Holy City. The locations of the settlements in and around East Jerusalem have been
290 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 23 October 2017, A/72/556, para. 50 (https://undocs.org/A/72/556).
291 European Union, Office of the European Union Representative (West Bank and Gaza Strip,
UNRWA), 2021 Report on Israeli settlements in the occupied West Bank, including East Jerusalem,
20 July 2022, pp. 1 and 6 (https://tinyurl.com/4cx8tt6u).
292 European Union, Office of the European Union Representative (West Bank and Gaza Strip,
UNRWA), 2022 Report on Israeli settlements in the occupied West Bank, including East Jerusalem,
15 May 2023, p. 1 (footnote omitted) (https://tinyurl.com/mwn34d2j).
293 European Union, Office of the European Union Representative (West Bank and Gaza Strip,
UNRAW), 2021 Report on Israeli settlements in the occupied West Bank, including East Jerusalem,
20 July 2022, p. 2 (https://tinyurl.com/5n6echjm).
294 Peace Now, Settlements Map 2023, 5 January 2023, p. 2 (https://tinyurl.com/2p97bz6p).
295 Peace Now, Tenders were published for 1,029 housing units: 940 in the West Bank, and 89
in East Jerusalem, 24 March 2023 (https://tinyurl.com/5n92ye7a).
296 “Israeli Authorities Advance Plans for some 6500 Housing Units in Settlements across East
Jerusalem”, Ir Amim, 3 April 2023 (https://tinyurl.com/yckuamu8). See also Foundation for Middle
East Peace, Settlement & Annexation Report, 7 April 2023 (https://tinyurl.com/yxf43962).
86
selected with the specific objective of blocking the expansion of Palestinian
communities and fracturing the connections between them, as well as their
connections with other Palestinian areas in the West Bank. As the Special
Rapporteur has explained: “[t]he spatial placement of the Israeli settlements badly
fragments Palestinian contiguity in East Jerusalem and the West Bank.” In
particular, as shown above in Figures 3.3 and 3.4, Israeli settlements in East
Jerusalem “are located primarily around the northern, eastern and southern
perimeters of the city, blocking any Palestinian territorial continuity with the West
Bank.”297
3.87. The Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel (“the Independent
International Commission of Inquiry”) found that:
“[a]n outer layer of settlements, beyond the municipal boundaries of
Jerusalem, has also contributed to severing the geographical contiguity
between East Jerusalem and the rest of the occupied West Bank. This
includes the plan for the E1 area in eastern Jerusalem (outside the municipal
boundary), intended to reinforce the settlements in the Ma’ale Adumim area
and connect them with Jerusalem, which would divide the West Bank into
two separate entities.”298
3.88. Figure 3.5 at p. 87 below, shows how Israel’s so-called E1 settlement
“block” serves to create Israeli contiguity all across the West Bank, from East
Jerusalem to the Jordan River and the Dead Sea, by connecting Jerusalem to the
Ma’ale Adumim settlement “block”, whose eastern limit abuts the Jordan Valley,
which Israel has declared off limits to Palestinians.
3.89. While some of the settlements were situated so as to encircle East
Jerusalem, others were established in the midst of Palestinian neighbourhoods. In
1997, the United Nations reported on “the increasing movement of Jewish settlers
into established Arab neighbourhoods”. This “was seen not only as an
encroachment on the demographic integrity of the area but also as part of a broader
297 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 29 July 2021, A/HRC/47/57, para. 55
(https://undocs.org/A/HRC/47/57).
298 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 15
(footnote omitted) (https://www.un.org/unispal/wpcontent/
uploads/2022/10/A.77.328_140922.pdf).
E1
Ma’ale
“block”
31°30'N
31°15'N
32°15'N
32°30'N
JORDAN
VALLEY
JORDAN
VALLEY
JORDAN
VALLEY
32°00'N
31°30'N
31°15'N
ISRAEL
ISRAEL
JORDAN
PALESTINE
West Bank
PALESTINE
West Bank
Bethlehem
Ramallah
Salfit
Jericho
Hebron
Tubas
Qalqiliya
Nablus
Tulkarm
Jenin
West
Israel’s
Annexation
35°15'E 35°30'E
35°15'E 35°30'E
34°45'E 35°00'E
31°45'N
32°15'N
32°00'N
31°45'N
Dead
Mediterranean
Sea
The Green
Line
Prepared by: International Mapping
ISRAEL’S E1 SETTLEMENT
“BLOCK” AND THE DIVISION OF
THE WEST BANK
0 5 10 15 20
Miles
0 10 20 30 40
Kilometers
Legend:
Area Israel has Restricted
for Palestinians
Israel’s expanded limit of East Jerusalem
Israel’s expanded limit of West Jerusalem
Israel’s annexation wall - constructed
Israel’s annexation wall - planned
Source: United Nations’ Office for the Coordination of Humanitarian Affairs, (OCHA) Figure 3.5
https://reliefweb.int/map/occupied-palestinian-territory/occupied-palestinian-territorysettlement-
jerusalem-area-december
Adumim
settlement
Jerusalem
East
Jerusalem
Wall
Sea
87
89
strategy of occupation”299. Since the publication of the United Nations report,
Israeli settlement within established Palestinian neighbourhoods has continued to
grow. In 2019, the Special Rapporteur observed that “[o]ccupied East Jerusalem is
home to 3,500 Israelis living in settlements in the heart of Palestinian
communities.”300
3.90. In addition to changing the demographic composition of East Jerusalem,
the number and placement of Israeli settlements has had far-reaching adverse
effects on the lives and livelihoods of the Palestinian population. In 2020, the
Special Rapporteur found:
“The disfiguring human rights consequences of the settlements upon the
Palestinians in East Jerusalem and the West Bank are pervasive. The United
Nations High Commissioner for Human Rights has determined that the
human rights violations emanating from the settlements include land
confiscation and alienation, settler violence, discriminatory planning laws,
the appropriation of natural resources, home demolitions, forcible
population transfer, labour exploitation, forced evictions and displacement,
physical confinement, discriminatory law enforcement and the imposition
of a two-tiered system of unequal political, social and economic rights based
on ethnicity.”301
3.91. “Above all,” the Special Rapporteur concluded:
“the settlements serve the broader goal of the Government of Israel of
staking an impermissible sovereignty claim over parts of the occupied
territory while simultaneously denying Palestinian self-determination ...”302
2. Israel’s Persistent Defiance of Demands to Cease the Illegal Construction of
Settlements in East Jerusalem
3.92. Israel’s establishment of settlements and implantation of Israeli citizens
in East Jerusalem has been carried out in wilful defiance of repeated international
299 United Nations Committee on the Exercise of the Inalienable Rights of the Palestinian
People, The Status of Jerusalem, New York, United Nations, 1997, p. 18
(https://tinyurl.com/24nbfype).
300 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 30 May 2019, A/HRC/40/73, para. 19 (footnote omitted)
(https://undocs.org/A/HRC/40/73).
301 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2020, A/75/532, para. 54.
302 Ibid.
90
demands for it to cease this illegal activity. The Security Council has adopted
resolutions explicitly demanding that Israel refrain from constructing settlements in
East Jerusalem:
(a) On 1 March 1980, the Security Council adopted resolution 465. The resolution
“[d]eplor[ed] the decision of the Government of Israel officially to support
Israeli settlements in the Palestinian and other Arab territories occupied since
1967” and stated that it was “[d]eeply concerned by the practices of the Israeli
authorities in implementing that settlements policy in the occupied Arab
territories, including Jerusalem, and its consequences for the local Arab and
Palestinian population”. The Security Council “[d]etermin[ed] that all
measures taken by Israel to change the physical character, demographic
composition, institutional structure or status of the Palestinian and other Arab
territories occupied since 1967, including Jerusalem, or any part thereof have
no legal validity and that Israel’s policy and practices of settling parts of its
population and new immigrants in those territories constitute a flagrant
violation of the Geneva Convention relative to the Protection of Civilian
Persons in Time of War …”. Further, the Security Council “[s]trongly
deplore[d] the continuation and persistence of Israel in pursuing those policies
and practices and call[ed] upon the Government and people of Israel to rescind
those measures, to dismantle the existing settlements and in particular to cease,
on an urgent basis, the establishment, construction and planning of
settlements” in the occupied territory303.
(b) Most recently, on 23 December 2016, the Security Council adopted resolution
2334 which referred to “the inadmissibility of the acquisition of territory by
force” and “[c]ondemn[ed] all measures aimed at altering the demographic
composition, character and status of the Palestinian Territory occupied since
1967, including East Jerusalem, including, inter alia, the construction and
expansion of settlements, [and] transfer of Israeli settlers”. The resolution
“[e]xpress[ed] grave concern that continuing Israeli settlement activities are
dangerously imperilling the viability of the two-State solution based on the
1967 lines”. The resolution went on to state that the Security Council:
“1. Reaffirms that the establishment by Israel of settlements in the
Palestinian territory occupied since 1967, including East Jerusalem, has no
legal validity and constitutes a flagrant violation under international law and
303 Security Council, Resolution 465 (1980), 1 March 1980.
91
a major obstacle to the achievement of the two-State solution and a just,
lasting and comprehensive peace;
2. Reiterates its demand that Israel immediately and completely cease all
settlement activities in the occupied Palestinian territory, including East
Jerusalem, and that it fully respect all of its legal obligations in this
regard”304.
3.93. In accordance with paragraph 12 of Resolution 2334, beginning in March
2017, the Secretary-General has reported to the Security Council on a quarterly
basis on 26 occasions with respect to Israel’s compliance with the resolution,
including the direction that Israel “immediately and completely” halt all of its
settlement activities, and that “it fully respect all of its legal obligations in this
regard.” On each of the 26 occasions, the Secretary-General has informed the
Council that Israel has not complied with any of the directions as per the resolution.
On 22 March 2023, for example, the Secretary General reported:
“Security Council resolution 2334 (2016) calls on Israel to ‘immediately
and completely cease all settlement activities in the Occupied Palestinian
Territory, including East Jerusalem and to ‘fully respect all of its legal
obligations in this regard.’ Settlement activities have, nevertheless,
continued during the reporting period.”305
3.94. Since 1971, the United Nations General Assembly has adopted no less
than 164 resolutions relevant to the question of Palestine, with at least one
resolution adopted in every annual session specifically condemning the Israeli
settlements in the Occupied Palestinian Territory, including East Jerusalem. This is
among the most frequently pronounced upon issues by the United Nations General
Assembly, including in the context of its tenth emergency special session, which
first convened in April 1997 with the express purpose of addressing illegal Israeli
actions in Occupied East Jerusalem and the rest of the Occupied Palestinian
Territory and in particular Israeli settlement activities in the City. These resolutions
have designated the Israeli settlements as a flagrant violation of international law,
they have called upon Israel to remove the existing settlements and to not build new
ones, and they have deplored Israel’s repeated failure to comply with General
Assembly and Security Council resolutions regarding the illegality of the
304 Security Council, Resolution 2334 (2016), 23 December 2016.
305 The Office of the United Nations Special Coordinator for the Middle East Peace Process,
“Security Council Briefing on the Situation of the Middle East, Report of the Secretary-General on
the Implementation of UN SCR 2334”, 22 March 2023 (https://tinyurl.com/yckhcws3).
92
settlements. Moreover, the resolutions of the tenth emergency special session of the
General Assembly, beginning with resolution ES-10/3 of 15 July 1997, notably
called on the High Contracting Parties to the Fourth Geneva Convention to
“convene a conference on measures to enforce the Convention in the Occupied
Palestinian Territory, including Jerusalem, and to ensure its respect, in accordance
with common article 1”306.
3.95. In addition to the repeated condemnations by the Security Council and
the General Assembly, in 2014 the Secretary-General published a report on Israeli
settlements in the Occupied Palestinian Territory, including East Jerusalem,
describing them as unlawful:
“Ten years after the International Court of Justice issued its 2004 Advisory
Opinion on the Legal Consequences of the Construction of the Wall in the
Occupied Palestinian Territory, Israel continues to breach international
human rights and humanitarian law by building and expanding the wall and
the settlements in the West Bank, including East Jerusalem. Since 2004,
several new settlements have been established, notably in East Jerusalem,
and the settler population in the West Bank, including East Jerusalem, has
increased from an estimated 415,000 settlers in 2004 to between 500,000
and 650,000 in 2012 (A/HRC/25/38, para. 8). This represents an increase of
at least 85,000 settlers since the issuance by the International Court of
Justice of its landmark opinion.”307
3.96. Contrary to international law, and the demands of the highest judicial
and political organs of the United Nations, as well as the Human Rights Council
and the Economic and Social Council, Israel has made clear that it will not cease
building settlements or increasing the number of Israeli settlers in occupied East
Jerusalem. In May 2021, for example, Prime Minister Netanyahu gave a televised
address in which he stated:
“We firmly reject the pressure not to build in Jerusalem. To my regret, this
pressure has been increasing of late … Jerusalem is Israel’s capital and just
as every nation builds in its capital and builds up its capital, we also have
the right to build in Jerusalem and to build up Jerusalem. That is what we
have done and that is what we will continue to do”308.
306 General Assembly, Resolution ES-10/3, 15 July 1997, para. 10.
307 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and the occupied Syrian Golan, 25 August 2014, A/69/348, para. 10
(footnotes omitted) (https://undocs.org/A/69/348).
308 “Israel rejects pressure not to build in Jerusalem, as global concern mounts over planned
evictions of Palestinians”, ABC News, 9 May 2021 (https://tinyurl.com/mrxuh85z).
93
3.97. In October 2022, the Secretary-General reported that, in the preceding
year, “[s]ettlements advancements continued, further consolidating a ring of
settlements around East Jerusalem.”309 The Secretary-General’s report reflects the
pace of that continued expansion, and its impact on Palestinians in East Jerusalem,
describing for example how:
“[o]n 4 and 18 October and on 8 November, the Israeli Civil Administration
held discussions on objections to two settlement housing plans for a total of
nearly 3,500 units in the strategic E1 area immediately east of East
Jerusalem. On 5 January, Israeli authorities published tenders for some
300 settlement housing units in the East Talpiot neighbourhood in East
Jerusalem. On 10 and 24 January, the Jerusalem District Planning
Committee advanced plans to build some 800 and 400 housing units,
respectively, in the East Jerusalem settlement of Gillo. On 17 January, the
same Committee advanced a plan for some 1,200 housing units next to
Ramat Rachel – a significant number of which are intended for construction
in East Jerusalem. These plans, if approved, would further isolate occupied
East Jerusalem from the rest of the West Bank, sever the connection
between the northern and southern West Bank and significantly undermine
the possibility of a viable and contiguous Palestinian State.”310
3.98. Israel has given every indication that building and expanding its
settlements and increasing the number of Israelis in occupied East Jerusalem, in the
words of its Prime Minister, “is what we have done, and that is what we will
continue to do.”311 The settlements and the demographic engineering that they
reflect – in an attempt to create an Israeli Jewish majority – serve the same purpose
as Israel’s laws annexing Jerusalem and the public pronouncements of its Prime
Ministers and other senior officials that it will never surrender “sovereignty” over
the Holy City: to make permanent Israel’s acquisition of Jerusalem by military
force, in 1948 and 1967.
B. DISPLACEMENT OF PALESTINIANS
3.99. In tandem with the construction of settlements in occupied East
Jerusalem to increase the number of Israelis living there, Israel has implemented a
range of policies which have created a coercive and oppressive environment for
309 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and the Occupied Syrian Golan, 3 October 2022, A/77/493, para. 6.
310 Ibid. (footnote omitted).
311 “How a Jerusalem neighborhood reignited the Israeli-Palestinian conflict”, The Washington
Post, 9 May 2021 (https:/tinyurl.com/4zahhyyx).
94
Palestinian residents to bring about their displacement from the Holy City and its
environs. As the Independent International Fact-Finding Mission found in 2013:
“In East Jerusalem, multiple factors, such as discriminatory building
regulations, the large number of demolition orders, residence permit
restrictions, the acute housing shortage and violence and intimidation from
settlers, put enormous pressures on the city’s Palestinian population.”312
3.100. The Independent International Commission of Inquiry “emphasize[d]
that the situation for Palestinians in occupied East Jerusalem continues to
deteriorate as Israel expands its East Jerusalem settlements and applies measures
and policies intended to further reduce Palestinian space and coerce them to leave
their homes.”313
1. The Demolition of Palestinian Homes
3.101. Since 1967 Israel has demolished a vast number of Palestinian
properties in East Jerusalem. As data published by the United Nations Office for
the Coordination of Humanitarian Affairs (“UNOCHA”) shows, these demolitions
have resulted in the displacement of thousands of Palestinians from East Jerusalem
and have directly affected the lives of many thousands more314.
3.102. To take the last three years as an example, UNOCHA reports315 reveal
that between 2020 and 2022, Israel demolished 508 Palestinian-owned properties
in East Jerusalem, displacing 1,064 Palestinians (including 526 children), and
directly affecting a further 3,028 individuals.
312 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, para. 68 (https://undocs.org/A/HRC/22/63).
313 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 81
(emphasis added) (https://undocs.org/A/77/328).
314 UNOCHA, Breakdown of data on demolition and displacement in the West Bank
(https://tinyurl.com/y36ejsmy). Report of the Special Committee to Investigate Israeli Practices
Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories
similarly described how “[t]he constant and imminent threat of demolitions in East Jerusalem …
affect[s] some 100,000 Palestinians who are facing the possibility of demolitions and displacement.”
(See Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights
of the Palestinian People and Other Arabs of the Occupied Territories, 20 September 2019,
A/74/356, para. 27 (https://undocs.org/A/74/356).
315 See the figures contained in the UNOCHA, West Bank Demolitions and Displacement: An
Overview reports published for each month in 2020, 2021 and 2022 (https://tinyurl.com/35eua4b5).
95
3.103. In 2020, the High Commissioner for Human Rights found that
“increased settlement expansion … was mirrored by a sharp rise in demolitions in
East Jerusalem”, which had seen a “record number of demolitions”316.
3.104. In 2021, the Special Committee to Investigate Israeli practices similarly
reported that “[d]emolitions have increased … in comparison to 2019”, with
“[e]ntire Palestinian communities … facing the risk of forcible transfer.”317 In
2023, the High Commissioner for Human Rights explained that “[a]larming levels
of demolition” of Palestinian-owned properties continued to take place in East
Jerusalem318. The High Commissioner’s report described “the recent acceleration
in the demolition of newly built Palestinian structures in East Jerusalem” and
explained that “[t]he number of Palestinians in East Jerusalem who have been
forced to self-demolish their properties is on the rise”319. The report explained that
as of 31 October 2022 there were more than 4,200 “pending demolition and
eviction orders against Palestinian structures, with the highest number of orders
being in East Jerusalem”320.
2. The Forcible Displacement of Palestinians by Israeli Settlers
3.105. Palestinians in East Jerusalem not only face demolition of their homes
by Israeli authorities, but also forcible displacement by the Israeli courts at the
behest of Israeli settlers. As the Special Rapporteur has explained:
“In addition to home demolitions, Palestinian residents of East Jerusalem
are vulnerable to being forcibly evicted from their homes. ... Israeli settler
organizations seeking control of parts of East Jerusalem, particularly the
Muslim and Christian areas of the old city, have launched eviction
proceedings against Palestinian families.”321
316 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
30 January 2020, A/HRC/43/67, para. 43 (https://undocs.org/A/HRC/43/67).
317 Report of the Special Committee to Investigate Israeli Practices Affecting the Human
Rights of the Palestinian People and Other Arabs of the Occupied Territories, 29 September 2021,
A/76/360, paras. 22-23 (https://undocs.org/A/76/360).
318 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
15 March 2023, A/HRC/52/76, para. 26 (https://undocs.org/A/HRC/52/76).
319 Ibid., para. 32.
320 Ibid., para. 26 (footnote omitted).
321 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 13 April 2017, A/HRC/34/70, para. 15
(https://undocs.org/A/HRC/34/70).
96
3.106. In 2021, the Special Committee referred to “the worrying situation of
Palestinians facing forced eviction in East Jerusalem.” It noted that the Jerusalem
Magistrates Court had ordered the eviction of Palestinian families in the Batn al-
Hawa area of Silwan in East Jerusalem, who would be replaced by settlers. The
Special Committee observed:
“The majority of evictions in East Jerusalem have been initiated by ‘settler
organizations’ and the claims are based on the Israeli Absentee Property
Law and the Legal and Administrative Matters Law of 1970. The
implementation of these laws in East Jerusalem would facilitate the transfer
by Israel of its population into an occupied area. The situation of these
families and the planned implementation of the eviction orders underlines
Israeli aims to permanently change the Palestinian character of East
Jerusalem and pave the way for further settlers to move in and displace more
Palestinians.”322
3.107. In 2021, the Special Rapporteur observed that “Israeli settler
organizations have particularly intensified their applications for evictions,
significantly increasing the number of lawsuits facing the Palestinian families”, and
that such evictions “amount to a violation by Israel, the occupying power, of the
prohibition against the forcible transfer of the protected population under article 49
of the Geneva Convention relative to the Protection of Civilian Persons in Time of
War”323.
3. Denial of Building Permits for Palestinians
3.108. The High Commissioner for Human Rights has found that “Israeli
zoning and planning policies in … East Jerusalem are discriminatory and
considered incompatible with requirements under international law”324. In
particular, “the Israeli zoning and planning policy in East Jerusalem is inherently
322 Report of the Special Committee to Investigate Israeli Practices Affecting the Human
Rights of the Palestinian People and Other Arabs of the Occupied Territories, 29 September 2021,
A/76/360, para. 24 (footnote omitted) (https://undocs.org/A/76/360).
323 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 29 July 2021, A/HRC/47/57, para. 18
(https://undocs.org/A/HRC/47/57).
324 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
30 January 2020, A/HRC/43/67, para. 30 (https://undocs.org/A/HRC/43/67).
97
discriminatory and constitutes a key factor of a coercive environment … forcing
Palestinians to leave communities they have lived in for generations …”325.
3.109. The effects of this discriminatory regime are stark. As the High
Commissioner explained in 2020:
“Israeli authorities have zoned only 15 per cent of the area illegally annexed
in 1967 for the housing needs of Palestinians, compared to 38 per cent
allocated to settlement construction. Data provided by the Jerusalem
Municipality show that while Palestinian residents account for 38 per cent
of the overall population of Jerusalem, between 1991 and 2018 only 16.5
per cent of building permits were issued for construction in Palestinian
neighbourhoods, mainly for small-scale private projects. By contrast, 37.8
per cent of permits were issued for settlement construction in East
Jerusalem. Discriminatory planning, coupled with costly and complicated
procedures, make it almost impossible for Palestinian residents to obtain
building permits.”326
3.110. At least a third of all Palestinian homes in East Jerusalem lack Israeliissued
building permits, which are virtually impossible to obtain, potentially
placing over 100,000 Palestinian residents at risk of displacement327. The denial of
building permits is a key element of Israel’s policies for reducing the Palestinian
population of East Jerusalem. Palestinians have no option but to build without a
permit and thus face the prospect of either having their homes demolished or live
under the constant threat of demolition. It has been recognized that Israel engages
in the “denial of building permits even to long-term Palestinian residents as part of
a continuing effort to change the demographics of the city in Israel’s favour.”328
4. Revocation of Residency Status
3.111. Alongside that discriminatory building regime sits an equally
discriminatory system of residency rights and status. Palestinians in East Jerusalem
have “a unique status under Israeli law, which may be revoked relatively easily,
325 Ibid., para. 41 (footnotes omitted).
326 Ibid., para. 42.
327 UNOCHA, “West Bank/East Jerusalem: key humanitarian concerns” in Humanitarian
facts and figures, 21 December 2017 (https://tinyurl.com/3fhb6c3t).
328 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied by Israel since 1967, 25 August 2009, A/64/328, para. 45
(https://undocs.org/A/64/328).
98
resulting in a perpetual threat of displacement.”329 Israel regulates the Palestinians
living in East Jerusalem, many since generations, as if they were foreign nationals,
with no regard for their status as protected persons under international humanitarian
law. Accordingly, Palestinian residents lose their permanent residency status if they
reside elsewhere in the OPT or abroad for a period of seven years, or if they obtain
permanent residency or citizenship in another country330.
3.112. Israel has revoked the residency of over 14,500 Palestinians since the
start of its occupation of East Jerusalem in 1967331. The Special Rapporteur has
found that:
“While under the laws of occupation the Palestinian Jerusalemites are
‘protected persons’, Israel does not recognize that status. Since 1967, Israel
has revoked the residency status of more than 14,500 East Jerusalemite
Palestinians; since 1995, Palestinian residents of East Jerusalem have to
prove that their ‘centre of life’ is in the city in order to retain their permanent
resident status or risk losing their status and thus their ability to return to
their homes in East Jerusalem. Not having permanent resident status
prevents Palestinians from other parts of the Occupied Palestinian Territory
from legally residing or even visiting Jerusalem. In addition, Israeli laws
severely restrict the right to family reunification by denying many
Palestinian Jerusalemites the ability to extend permanent resident status to
their spouses and children who do not have recognized residency in
Jerusalem.”332
3.113. Further details regarding the discriminatory measures against
Palestinians in East Jerusalem, which constitute a primary tool for changing the
demographics of the City to achieve and maintain an Israeli Jewish majority and to
seize maximum Palestinian land with minimum Palestinians, are provided in
Chapter 4 below.
329 Norwegian Refugee Council, The Legal Status of East Jerusalem, December 2013, p. 5
(https://tinyurl.com/yazm8rea).
330 Secretary-General, “Israeli practices affecting the human rights of the Palestinian people in
the Occupied Palestinian Territory, including East Jerusalem”, 14 September 2012, A/67/372,
para. 38 (https://undocs.org/A/67/372).
331 UNOCHA, “West Bank/East Jerusalem: key humanitarian concerns” in Humanitarian
facts and figures, 21 December 2017 (https://tinyurl.com/3fhb6c3t).
332 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 41 (footnote omitted)
(https://undocs.org/A/73/447).
99
5. Settler Violence Towards Palestinians
3.114. Israeli settlers have frequently resorted to violence, under the protection
and with the complicity of Israeli occupation forces, to compel Palestinians to leave
their communities in or around East Jerusalem. The Secretary General has
underscored that “East Jerusalem is … particularly affected by settler violence.”333
3.115. While Israel has a duty to protect the Palestinian civilian population
under its occupation against such violence, the report of the Independent
International Fact-Finding Mission in 2013 found that “the identities of settlers who
are responsible for violence and intimidation are known to the Israeli authorities,
yet these acts continue with impunity.” The report concluded that “the motivation
behind this violence and the intimidation against the Palestinians and their
properties is to drive the local populations away from their lands and allow the
settlements to expand.”334
3.116. In 2023, the United Nations High Commissioner for Human Rights
reported that during the most recent reporting period “settler violence further
intensified, reaching the highest levels ever recorded by the United Nations.”335
3.117. Further details regarding the extent of settler violence against
Palestinians in the OPT, and Israel’s toleration and support of this, are provided in
Chapter 4 below.
IV. Israel’s Construction and Use of Infrastructure to
Bind East and West Jerusalem Together
3.118. Israel has built infrastructure in East Jerusalem and integrated it with
that in West Jerusalem with the intent to place the City as a whole under Israeli
“sovereignty” and make its annexation irreversible. This includes the construction
333 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and the occupied Syrian Golan, 25 August 2014, A/69/348, para. 42
(https://undocs.org/A/69/348).
334 Report of the independent international fact- finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, para. 107 (https://undocs.org/A/HRC/22/63).
335 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
15 March 2023, A/HRC/52/76, para. 38 (footnote omitted) (https://undocs.org/A/HRC/52/76).
100
and extension of the Wall cutting off East Jerusalem from the rest of the West Bank,
in defiance of the Court’s 2004 Wall Opinion.
A. USE OF INFRASTRUCTURE TO BIND EAST AND WEST JERUSALEM TOGETHER
3.119. This has been a signal feature of Israel’s policy since its occupation of
East Jerusalem in 1967. In relation to water infrastructure, for example, Israel
promptly merged the physical network of East Jerusalem with the physical network
in West Jerusalem and transferred responsibility for its operation and management
to West Jerusalem336.
3.120. Israel has also used transportation infrastructure to consolidate the
integration of East Jerusalem with West Jerusalem. By way of example, the four
blocks of settlements outside of “municipal Jerusalem” – which are commonly
referred to as “Greater Jerusalem” – are connected to “municipal Jerusalem”
through a series of roads, tunnels, bridges and rail links which create a “Jerusalem
metropolis”337. This has effectively converted these settlements into parts of the
city.
3.121. As part of the integration of transportation infrastructure, in 1999 the
Government of Israel approved the construction of a light rail network for
Jerusalem. This project had two objectives:
“The declared aim of this project was to link all neighborhoods around the
city with each other, while the implicit aim was to link the Israeli suburban
settlements (including Neve Ya’acov, Pisgat Ze’ev, French Hill, Ma’alot
Dafna, and Ramot) with the western side of the city”338.
336 “Within days of the occupation of East Jerusalem and the areas subsequently annexed to
Israel, the water department of the Israeli municipality of Jerusalem connected pipes between the
two systems and repaired the pumps and pipelines damaged during the fighting. This was part of the
‘integration of services,’ the term Israel used in lieu of annexation. The integration of services
included the transfer of the offices of the water department of the Jordanian municipality of
Jerusalem, its archives and personnel, to West Jerusalem, as well as the dismantlement of its motors
and pumps. … The Israeli Jerusalem municipality, determined to be the sole supplier of water to all
residents of Jerusalem, both east and west, promptly took over pipes and systems operated by
independent Palestinian water contractors.” (M. T. Dumper, “Jerusalem’s Infrastructure: Is
Annexation Irreversible?”, Journal of Palestine Studies, Vol. 22, 1993, No. 3, p. 81 (footnotes
omitted)).
337 B’Tselem, Land Grab, Israel’s Settlement Policy in the West Bank, May 2002, pp. 102-114
(https://tinyurl.com/2p9ru8fy).
338 S. Thawaba and H. Al-Rimmawi, “Spatial Transformation of Jerusalem: 1967 to Present”,
Journal of Planning History, Vol. 12, 2012, No. 1, p. 6.
101
3.122. As the Special Rapporteur found in 2020, “Israel has continued to
intensify its annexation of East Jerusalem” through both the construction of
settlements and “by solidifying the political and infrastructural integration of East
and West Jerusalem.”339 To this end, in addition to the settlements themselves,
“major settlement infrastructure has been built around Jerusalem and, to a lesser
extent, Hebron, enveloping them and severing social and economic ties with the
rest of Palestinian society, while linking the various settlements and the territory of
the State of Israel.”340
3.123. The Israeli government has not hidden that its objective of integrating
the settlements to Israel and to each other through infrastructure is to create
irreversible “facts on the ground” which consolidate Israel’s hold over East
Jerusalem.
3.124. Senior Israeli officials, at the highest level, have confirmed that Israel
regards the permanent integration of East Jerusalem with West Jerusalem and the
rest of Israel as a national policy imperative. In February 2020, for example, Prime
Minister Benjamin Netanyahu announced plans to construct more than 5,000 new
Israeli settlement units in East Jerusalem. In doing so, he made it clear that the
purpose of this settlement activity was to consolidate the integration of East
Jerusalem with West Jerusalem:
“We are connecting Jerusalem. We are connecting all parts of the united
Jerusalem, the rebuilt Jerusalem … We did it in the face of fierce
international opposition.”341
B. THE SEPARATION OF EAST JERUSALEM FROM THE REST OF THE WEST BANK
3.125. In its 2004 Wall Opinion, the Court determined that Israel’s
construction of a wall in the OPT, including East Jerusalem, was unlawful, and that
Israel was under a legal obligation to remove it342. Instead, Israel has not only
339 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2020, A/75/532, para. 42 (footnote omitted)
(https://undocs.org/A/75/532).
340 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, para. 58 (https://undocs.org/A/HRC/22/63).
341 “Israel leader vows thousands of new homes in east Jerusalem”, The Boston Globe,
20 February 2020 (emphasis added) (https://tinyurl.com/4576u89h).
342 Wall Opinion, p. 201, para. 163.
102
maintained in place the 190 kilometres already constructed at the time of the
Court’s Opinion343 but, as shown in Figure 3.6 at p. 103 below, has significantly
extended it.
3.126. The total planned length of the Wall is more than 700 km,
approximately two-thirds of which (c. 465 km) has now been constructed344. The
Special Rapporteur found that in constructing the Wall along its planned route Israel
“deliberately placed a number of Palestinian neighbourhoods on the West Bank side
of the wall”, cutting them off from Jerusalem. In particular, Israel “unilaterally
plac[ed] several large Palestinian Jerusalem neighbourhoods, including Kufr Aqab
and Shu’fat, outside of the wall”345. In all, “[a]bout 120,000–140,000 Palestinian
Jerusalemites have been forced to live on the West Bank side of the separation wall,
physically separated from access to the city and its services.”346
3.127. The reason why the Wall is built along that route is clear:
“It is an inescapable conclusion that the route of the separation wall around
Jerusalem — which includes all the Israeli settlements in East Jerusalem as
well [as] several nearby West Bank Israeli settlements, while excluding
approximately one third of the Palestinian Jerusalemites — has been
designed for demographic reasons to maximize the Israeli population in
Jerusalem while seeking to substantially reduce the city’s Palestinian
presence.”347
3.128. The Secretary General has also concluded that “[t]he Wall and related
restrictions on Palestinian movement are decisively cutting off East Jerusalem from
the rest of the Occupied Palestinian Territory.”348
343 Ibid., p. 169, para. 81.
344 United Nations, The Question of Palestine – Israeli Occupation of Palestinian Territory,
2021 (https://tinyurl.com/23c3rrzk).
345 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 196, 22 October 2018, A/73/447, para. 43 (https://undocs.org/A/73/447).
346 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 44 (footnote omitted)
(https://undocs.org/A/HRC/49/87).
347 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 196, 22 October 2018, A/73/447, para. 43 (emphasis added; footnote
omitted) (https://undocs.org/A/73/447).
348 Secretary-General, “Human rights situation in the Occupied Palestinian Territory,
including East Jerusalem”, 22 August 2013, A/HRC/24/30, para. 32
(https://undocs.org/A/HRC/24/30).
E1
area
Gush Etzion
settlement
“block”
Giv’at Ze’ev
settlement
“block”
Ma’ale
Adumim
settlement
“block”
Israel’s annexation wall
East
Jerusalem
West
Jerusalem
35°15'E
35°15'E
32°00'N
31°45'N 31°45'N
The Green
Line
Prepared by: International Mapping
ISRAEL’S ANNEXATION WALL
Mercator Projection
WGS-84 Datum
(Scale accurate at 32°N)
Wall segments completed or
Legend: under construction
Wall segments planned
0 1 2 3 4 5 6
Miles
0 3 6 9 12
Kilometers
Source: United Nations’ Office for the Coordination of Humanitarian Affairs, (OCHA) Figure 3.6
https://reliefweb.int/map/occupied-palestinian-territory/occupied-palestinian-territorysettlement-
jerusalem-area-december
103
105
3.129. UNOCHA explains that the Wall “has transformed the geography,
economy and social life of Palestinians living in East Jerusalem, as well as the lives
of those residing in the wider metropolitan area. Neighbourhoods, suburbs and
families have been divided from each other and separated from the urban centre,
and rural communities have been separated from their land.”349
3.130. The Wall and its associated regime thus serve two purposes. First, they
facilitate incorporation of Israeli settlements in and around East Jerusalem and
connectivity between the settlements and Israel. Second, they reduce the Palestinian
population of East Jerusalem by cutting off entire communities, including those in
nearby districts or suburbs, from the City, and by separating those who reside inside
the Wall from family, social and economic life beyond it, creating pressures for
their displacement. The inevitable result has been a substantial increase in the
number of Israeli settlers, a decrease in the Palestinian population and an overall
demographic change that facilitates the achievement of Israel’s ultimate objective
of permanent acquisition and “sovereignty” over the entire Holy City.
V. Israel’s Measures to Change the Religious and Historical Character of
the Holy City of Jerusalem
3.131. In addition to its changes to the demographic character of Jerusalem,
Israel has made equally fundamental changes to the religious and historical
character of the Holy City to serve its annexationist purposes. In particular, it has
adopted policies and practices to promote Jerusalem’s Jewish Israeli character and
undermine its Palestinian, Muslim and Christian character.
3.132. Israel has sought to accomplish these ends by means of its concerted
efforts to change the unique character of Jerusalem, including the Old City, the
historical heart of the City, which holds inestimable religious and spiritual
importance for the followers of the three monotheistic religions.
3.133. The General Assembly and Security Council have long emphasised that
freedom of access to the Holy Places in the City, and the unimpeded right to worship
there, in line with the historic status quo, are fundamental to preserving Jerusalem’s
unique character and status. As established earlier, Resolution 181 (II), which the
General Assembly adopted in November 1947, contained specific provisions
requiring the preservation of existing rights in respect of the Holy Places; the
guarantee of the right to access to and worship at the Holy Places; and the
349 UNOCHA, The humanitarian impact of 20 years of the Barrier, 30 December 2022, para. 6
(https://tinyurl.com/4xpjr3bd).
106
preservation of the Holy Places and other religious buildings and sites350. Likewise,
as early as 1948, the Security Council adopted Resolution 50 (1948) which
recognized the freedom of worship and the right to access the Holy Places of the
city and which urged all authorities concerned “to take every possible precaution
for the protection of the Holy Places and of the City of Jerusalem, including access
to all shrines and sanctuaries for the purpose of worship by those who have an
established right to visit and worship at them”351.
3.134. Notwithstanding those resolutions, since 1967 Israel has caused or
permitted innumerable intrusions and attacks targeting Al-Haram Al-Sharif – of
immeasurable religious and cultural significance to the Palestinian people and
Muslims around the world – which have resulted in damage to the sacred site and
which have severely impeded the ability of Muslims to worship there. Since the
Israeli annexation of Jerusalem, the site, which is heavily controlled by Israeli
occupation forces, has been subject to many intrusions from Israeli military, Israeli
officials and parliamentarians, and settlers and other extremists, who want to lay
claim to it and hinder the rights of Muslim worshippers, in violation of the
longstanding historic and legal status quo at the site352.
3.135. In 1969, only two years after Israel occupied East Jerusalem, attacks
targeting the Holy Al-Aqsa Mosque by Israeli nationals triggered concern and
condemnation by the Security Council. In resolution 271, the Security Council
stated that it was “[g]rieved at the extensive damage caused by arson to the Holy
Al Aqsa Mosque in Jerusalem … under the military occupation of Israel” and noted
“the universal outrage caused by the act of sacrilege in one of the most venerated
shrines of mankind”. The Security Council further
“Determine[d] that the execrable act of desecration and profanation of the
Holy Al Aqsa Mosque emphasizes the immediate necessity of Israel’s
desisting from acting in violation of the aforesaid resolutions and rescinding
forthwith all measures and actions taken by it designed to alter the status of
Jerusalem;
Call[ed] upon Israel scrupulously to observe the provisions of the Geneva
Conventions and international law governing military occupation and to
350 General Assembly, Resolution 181 (II), 29 November 1947.
351 Security Council, Resolution 50 (1948), 29 May 1948, para. 5.
352 The Hashemite Kingdom of Jordan and State of Palestine, Status Report on The State of
Conservation of the Old City of Jerusalem and Its Walls, 16 March 2015, pp. 4-12
(https://tinyurl.com/mr2rkytz).
107
refrain from causing any hindrance to the discharge of the established
functions of the Supreme Moslem Council of Jerusalem …”353.
3.136. In addition to conducting, tolerating, failing to prevent violent attacks,
the Israeli authorities have frequently barred Palestinians from entering the Mosque
or closed it altogether for alleged “security reasons”, thereby denying Muslim
worshippers their right to worship at one of Islam’s holiest places354. Christian
worshippers are also subject to restrictions, as most recently documented during
Easter observance, and worshippers and priests have been subjected to harassment
and violence, and churches have been desecrated.
3.137. Israel has also conducted numerous excavations in the vicinity of holy
Islamic and Christian sites in the Old City355. These excavations are carried out
regardless of the risk of harm to existing Muslim and Christian Holy Places and
Palestinian homes and in full disregard to the historic status quo and international
humanitarian and human rights law. They ignore the demands from the General
Assembly, the Security Council and UNESCO (which ascribes the Old City and its
walls as a World Heritage site under threat) to refrain from excavating in close
353 Security Council, Resolution 271 (1969), 15 September 1969, paras. 3-4.
354 In 1997, for example, the United Nations described “the inability of residents of the West
Bank and Gaza (whether Muslim or Christian) to enter Jerusalem to pray at their respective holy
places, even during major holidays, because of the prolonged closures of East Jerusalem for security
reasons” (see United Nations Committee on the Exercise of the Inalienable Rights of the Palestinian
People, The Status of Jerusalem, New York, United Nations, 1997, p. 17 (footnote omitted)
(https://tinyurl.com/24nbfype)). In July 2021, the Special Rapporteur reported that, “during the last
days of Ramadan, Israeli Security Forces further restricted the access of Palestinian worshippers to
the Aqsa Mosque compound and limited their movement, while using excessive force within the
mosque itself” (see Report of the Special Rapporteur on the situation of human rights in the
Palestinian territories occupied since 1967, 29 July 2021, A/HRC/47/57, para. 7
(https://undocs.org/A/HRC/47/57). In its report submitted in September 2022, the United Nations
Committee on the Exercise of the Inalienable Rights of the Palestinian People called on Israel “to
uphold its obligations under international humanitarian and human rights law, respect the status quo
at the holy sites in Jerusalem, including the historic and legal status quo at the Aqsa Mosque
compound, and ensure that Muslims are able to peacefully worship and practice their religion
without fear of violence or retaliation.” (Report of the Committee on the Exercise of the Inalienable
Rights of the Palestinian People, 31 August 2022, A/77/35, para. 91 (https://undocs.org/A/77/35)).
355 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and the occupied Syrian Golan, 31 August 2015, A/70/351, paras. 33-36
(https://undocs.org/A/70/351). Also, between 2008 and 2017, Israel submitted yearly reports to the
World Heritage Committee regarding its “conservation” activities in the Old City which included
its archaeological excavations (https://tinyurl.com/5bp62vd2) (For 2017, see under the heading
“Conservation issues presented to the World Heritage Committee in 2017”. The reports for other
years can be accessed from the respective tabs in the same UNESCO website. The website also
includes information collected by the World Heritage Committee in the years prior to 2017).
108
proximity to the sacred sites. In 1972, for example, UNESCO “[u]rgently call[ed]
upon Israel”:
“to desist from any archaeological excavations, the transfer of cultural
properties and any alteration of their features or their cultural and historical
character, particularly with regard to Christian and Islamic religious
sites”356.
3.138. UNESCO subsequently denounced Israel’s “persistence in altering the
historical features of the City of Jerusalem … by undertaking excavations which
constitute a danger to its monuments, subsequent to its illegal occupation of this
city”357.
3.139. In 1981, the General Assembly adopted resolution 36/15 entitled
“Recent developments in connexion with excavations in eastern Jerusalem” in
which it:
“Determines that the excavations and transformations of the landscape and
of the historical, cultural and religious sites of Jerusalem constitute a
flagrant violation of the principles of international law and the relevant
provisions of the Geneva Convention relative to the Protection of Civilian
Persons in Time of War, of 12 August 1949; [and]
3. Demands that Israel desists forthwith from all excavations and
transformations of the historical, cultural and religious sites of Jerusalem,
particularly beneath and around the Moslem Holy Sanctuary of Al-Haram
Al-Sharif (Al Masjid Al Aqsa and the Sacred Dome of the Rock), the
structures of which are in danger of collapse”358.
3.140. The risks attendant to Israel’s excavations in the Old City have led
UNESCO to condemn Israel for “having continued … to change and Judaize the
historic and cultural configuration of Jerusalem”359.
3.141. The Independent International Fact-Finding Mission confirmed
UNESCO’s findings. It concluded that Israel has impermissibly attempted to alter
356 UNESCO General Conference, Resolution 3.422, November 1972, para. 2
(https://tinyurl.com/k4zsn79z).
357 UNESCO General Conference, Resolution 3.427, November 1974, para. 2
(https://tinyurl.com/3anj3mns).
358 General Assembly, Resolution 36/15, 28 October 1981, paras. 1-3.
359 UNESCO General Conference, Resolution 4/7.6/13, 28 November 1978,
20C/RES/4/7.6/13, para. 3 (https://tinyurl.com/2p9ctyz5).
109
the character and status of the Holy City of Jerusalem “by erasing cultural heritage
on the basis of religious affiliation … with pernicious effects.”360
3.142. Periodic reports issued by the Director-General of UNESCO show that
Israel has continued to perform illegal excavations in the Old City until this day361.
In particular, expansion of excavations adjacent to the outer and lower pillars of the
Holy Al-Aqsa Mosque was reported in 2022 by Palestinian and Jordanian
authorities362.
3.143. The Security Council363 and the General Assembly364 have repeatedly
reaffirmed the need to uphold the historic status quo, without compliance by Israel.
Conclusion
3.144. As the facts set out in this Part amply demonstrate, through its laws and
the repeated public pronouncements of its leaders since 1967, Israel has made
absolutely clear that it regards the entirety of the Holy City – both West and East
Jerusalem – as its own “sovereign” territory, in breach of international law. Indeed,
there can be no clearer evidence of an intent to annex a territory than the intent
manifested in the laws enacted by Israel, and the statements made by its leaders,
throughout decades. Those laws and pronouncements have been matched by an
array of unlawful deeds, including especially the construction of vast Israeli
settlements and the implantation of more than 230,000 Israeli citizens into occupied
East Jerusalem and its environs converting a Palestinian urban environment into
360 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2012,
A/HRC/22/63, para. 61 (https://undocs.org/A/HRC/22/63).
361 On 18 May 2023, for example, the Executive Board of UNESCO adopted a decision which
stated that UNESCO “[r]egrets the failure of the Israeli occupying authorities to cease the persistent
excavations, tunnelling, works and projects in East Jerusalem, particularly in and around the Old
City of Jerusalem which are illegal under international law” (https://tinyurl.com/49cp8kt8).
362 See Letter from the Permanent Delegations of the Hashemite Kingdom of Jordan and the
State of Palestine to UNESCO, 25 April 2022 (https://tinyurl.com/5n8kbmjs).
363 The Security Council “call[ed] for upholding unchanged the historic status quo at the holy
sites in Jerusalem in word and in practice” and emphasized the Hashemite Custodianship (Statement
by the President of the Security Council S/PRST/2023/1, 20 February 2023); and “[t]he members of
the Security Council called for the exercise of restraint, refraining from provocative actions and
rhetoric and upholding unchanged the historic status quo at the Haram al-Sharif — in word and in
practice” (Security Council Press Statement on Situation in Jerusalem, SC/12052-PAL/2196, 17
September 2015).
364 The General Assembly “[c]all[ed] for respect for the historic status quo at the holy places
of Jerusalem, in word and in practice” (General Assembly, Resolution 76/12, 6 December 2021,
para. 4).
110
one that is majority-Israeli, and the simultaneous implementation of a series of
unlawful, discriminatory and coercive measures designed to displace Palestinians
from the Holy City or ensure they are confined to the smallest possible geographic
space inside the City if they are to remain in it. Israel has also persisted in its assault
against the Palestinian identity of the City. Not content with severing it
geographically from its Palestinian environment, it has actively tried to deny its
natural role as the historic, political, religious, cultural, economic and social centre
of Palestinian life. And, in seeking to further entrench its annexation and render it
irreversible, Israel has vitiated the historic status quo that has been a bedrock for
the preservation of the City’s unique spiritual and religious significance for all three
monotheistic religions.
3.145. For all these reasons, the illegality of Israel’s 56-year occupation and
annexation of East Jerusalem, as well as its military capture and annexation of West
Jerusalem in 1948, is undeniable. Israel’s annexation of Jerusalem and its environs
amounts to the acquisition of territory by military force in blatant violation of the
United Nations Charter and peremptory norms of international law.
111
Part B.
ISRAEL’S ANNEXATION OF THE WEST BANK
3.146. Israel captured the rest of the West Bank by military force in June 1967,
in the same armed conflict in which it captured East Jerusalem. Although Israel
formally annexed East Jerusalem and parts of the West Bank shortly after its
military conquest of the Holy City, as set out in Part A of this Chapter, it followed
a more gradual route to annexation of the other areas of the West Bank, while
resorting in large part to the same policies and practices to achieve that goal. Israel
has adopted and implemented a multitude of laws, administrative orders and
political measures over the course of its 56-year long occupation to establish and
entrench its authority, including the extension and application of Israeli laws to
Israeli settlers in the West Bank; the construction of hundreds of settlements and
the implantation of nearly half a million Israeli citizens in the West Bank to ensure
the expansion of the Israeli State and the irreversibility of Israeli rule; and the
repeated public pronouncements of its highest political authorities that Israel’s
“sovereignty” over “Judea and Samaria” (its name for the West Bank) will last
forever and will never be relinquished.
3.147. In its Advisory Opinion in the Wall case, the Court expressed concern
lest “the construction of the wall and its associated régime create a ‘fait accompli’
on the ground that could well become permanent, in which case, and
notwithstanding the formal characterization of the wall by Israel, it would be
tantamount to de facto annexation.”365 After more than five and a half decades,
Israel’s occupation of this territory has indeed become a fait accompli that Israel
itself claims to be permanent. The regime it has established there constitutes nothing
less than the “de facto annexation” that the Court foresaw 19 years ago.
3.148. This is the conclusion that has been reached by, among other United
Nations agencies and independent experts, the Independent International
Commission of Inquiry on the Occupied Palestinian Territory, including East
Jerusalem, and Israel. In its September 2022 report, the Independent Commission
found that:
“Israel treats the occupation as permanent and has – for all intents and
purposes – annexed parts of the West Bank, while seeking to hide behind a
fiction of temporariness. Actions by Israel constituting de facto annexation
include expropriating land and natural resources, establishing settlements
365 Wall Opinion, p. 184, para. 121.
112
and outposts, maintaining a restrictive and discriminatory planning and
building regime for Palestinians and extending Israeli law extraterritorially
to Israeli settlers in the West Bank. The International Court of Justice
anticipated such a scenario in its 2004 advisory opinion, in which it stated
that the wall was creating a fait accompli on the ground that could well
become permanent and tantamount to de facto annexation. This has now
become the reality.”366
3.149. As determined by the Independent Commission – and the numerous
other United Nations bodies that have made authoritative findings or issued expert
reports on the matter – Israel’s actions in the West Bank over more than half a
century demonstrate that it is anything but a temporary occupier. To the contrary,
these agencies have uniformly found that Israel has disregarded and violated the
law of belligerent occupation – and the numerous demands of the General
Assembly and the Security Council to respect that law, as well as the United Nations
Charter – and asserted and applied its “sovereignty” over the West Bank by
engaging in an extensive array of activities of a sovereign character, reflecting –
and even declaring – a clear intention to maintain permanent dominion over the
territory.
3.150. In particular, since 1967, Israel has established hundreds of settlements
to which hundreds of thousands of Israeli citizens have been transferred and
implanted with the express objective of creating permanent facts on the ground as
a basis for claiming “sovereignty” over the West Bank or large parts thereof. There
are more than 270 Israeli settlements and more than 465,000 Israeli settlers
presently in the West Bank (in addition to those present in East Jerusalem), all of
which Israeli leaders, including its current Prime Minister, have pledged never to
locate them back to Israel. And the numbers continue to grow.
3.151. At the same time – and for the same purpose – Israel has implemented
policies and practices designed to displace vast numbers of Palestinians from their
homes to pressure them to relocate, and to enclose the remainder within
increasingly smaller areas, effectively creating more space for the expansion of
Israeli settlements and separating Palestinian areas from one another to destroy the
territorial contiguity of the State of Palestine.
366 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 76
(https://undocs.org/A/77/328).
113
3.152. Israel has also appropriated for itself the natural resources of the West
Bank, especially water – the lifeblood of the territory – and seized control of the
physical infrastructure to bind the entire area more tightly to itself and further render
its presence permanent and irreversible. By these means, as well, the Special
Rapporteur determined in 2017 that: “Israel is actively establishing the de facto
annexation of parts of the occupied West Bank.”367
3.153. The pace of Israel’s annexation of the West Bank has been steadily
increasing. In 2018, the Special Rapporteur concluded that “in practice, Israel has
taken multiple steps consistent with establishing a sovereign claim over the West
Bank since shortly after the occupation began in June 1967, and those steps have
escalated significantly in recent years.”368 The Special Rapporteur explained:
“throughout the years of occupation since the June 1967 war, Israel has
continuously entrenched its de facto annexation of the West Bank by
imposing intentionally irreversible changes to occupied territory that are
proscribed by international humanitarian law: the establishment
of 230 settlements [now more than 270], populated by more
than 400,000 Israeli settlers [now more than 465,000]; the physical and
political enclosure of the 2.6 million [now 2.7 million] West Bank
Palestinians; the extension of Israeli laws to the West Bank and the creation
of a discriminatory legal regime; the unequal access to natural resources,
social services, property and land for Palestinians in the occupied West
Bank; and the explicit statements by a wide circle of senior Israeli political
leaders calling for the formal annexation of parts or all of the West
Bank. Those annexation trends have only intensified over the past two
years.”369
3.154. The Special Rapporteur found that “Israel has steadily entrenched its
sovereign footprint throughout the West Bank”370, but this “footprint” has been
deepest in the part of the territory designated as so-called “Area C,” which
comprises 60 % of the West Bank and which Israel has expressly reserved for itself
and its settlers. This part of the West Bank is depicted in orange in Figure 3.7, at
p. 115 below.
367 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 23 October 2017, A/72/556, para. 47 (https://undocs.org/A/72/556).
368 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 48 (https://undocs.org/A/73/447).
369 Ibid., para. 25.
370 Ibid., para. 50 (emphasis added and footnote omitted).
114
3.155. Within this area, as shown in Figure 3.8 at p. 117 below, Israel has
designated 70 % of the land for Israeli settlements, and nearly 30 % for military
bases and firing zones of its occupying forces, placing over 6,000 Palestinians
living in 38 communities at risk of forcible transfer. It has further restricted the
development or cultivation by Palestinians of what little land remains by
designating 14 % of the area as “nature reserves”. Less than 1 % of so-called “Area
C”, where 300,000 Palestinians live, is planned for Palestinian communities371.
3.156. The situation plainly justifies the observation by the Special Rapporteur
that:
“What civil society organizations once called the ‘creeping Israeli
annexation’ of the West Bank has now been relabelled ‘leaping annexation’
and ‘occup’annexation’.”372
3.157. The impacts in the Jordan Valley, which is the eastern border of the
State of Palestine, and the water reservoir and food basket of the West Bank, are
typical of those throughout the West Bank. As reported by UNOCHA:
“• The Jordan Valley and Dead Sea area covers around 30% of the West
Bank, and is home to nearly 60,000 Palestinians.
• [Most of the area] is prohibited for Palestinian use, earmarked instead for
the use of the Israeli military or under the jurisdiction of Israeli settlements.
.......................................................................................................................
• Around one quarter of Palestinians in the area reside in Area C, including
some 7,900 Bedouin and herders. Some 3,400 people reside partially or
fully in closed military zones and face a high risk of forced eviction.
• There are 37 Israeli settlements, with a population of 9,500, established
across the area, in contravention of international law.
.......................................................................................................................
371 UNOCHA, West Bank Area C: Key Humanitarian Concerns
(https://tinyurl.com/49czry56).
372 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 52 (footnotes omitted)
(https://undocs.org/A/73/447).
West
Jerusalem
32°15'N
32°00'N
31°30'N
31°45'N
31°15'N
32°15'N
32°30'N
32°00'N
31°30'N
31°45'N
31°15'N
ISRAEL
ISRAEL
JORDAN
JORDAN
PALESTINE
West Bank
West Bank
East
Jerusalem
Jericho
Hebron
Bethlehem
Ramallah
Salfit
Tubas
Jenin
Nablus
Qalqiliya
Tulkarm
35°15'E 35°30'E
35°15'E 35°30'E
35°00'E
35°00'E
34°45'E
Dead
Sea
Mediterranean
Sea
The Green
Line
Prepared by: International Mapping
THE WEST BANK
Mercator Projection
WGS-84 Datum
(Scale accurate at 32°N)
0 10 20 30 40
Kilometers
So-called “Area C” restricted
for Palestinians
Legend:
0 5 10 15 20
Miles
Source: United Nations’ Office for the Coordination of Humanitarian Affairs, (OCHA) Figure 3.7
https://www.un.org/unispal/west-bank-area-c-ocha-map/
115
West
Jerusalem
32°15'N
32°00'N
31°30'N
31°45'N
31°15'N
32°15'N
32°30'N
32°00'N
31°30'N
31°45'N
31°15'N
ISRAEL
ISRAEL
JORDAN
JORDAN
PALESTINE
West Bank
West Bank
East
Jerusalem
35°15'E 35°30'E
35°15'E 35°30'E
34°45'E 35°00'E
Dead
Sea
Mediterranean
Sea
The Green
Line
ISRAEL’S COLONIZATION OF
THE WEST BANK
Legend:
Closed and Restricted Areas:
Israeli Settlements:
Israeli Military Base So-called “Area C” restricted
for Palestinians
Israeli Firing Zone/Jordan Valley
Military Buffer Zone
(Access is prohibited)
(Access is prohibited)
Israeli Nature Reserve
(Land use is restricted)
Israeli Settlements
Areas under the Control
of Settlements
Land Cultivated by Settlers
Prepared by: International Mapping
0 10 20 30 40
Kilometers
0 5 10 15 20
Miles
Sources: United Nations’ Office for the Coordination of Humanitarian Affairs, (OCHA) Figure 3.8
https://www.ochaopt.org/content/west-bank-access-restrictions-may-2023
117
119
• Water consumption dips to 20 litres/capita/day in most herding
communities in the area, compared to the WHO recommendation of 100
l/c/d and the average settlement consumption of 300 l/c/d.
.......................................................................................................................
The restrictions on access to transportation routes, to agricultural land and
to water resources have hampered the Palestinian agricultural sector. The
denial of access to the Dead Sea coastline has also prevented the
development of a potentially significant source for revenue and
employment. Meanwhile, Israeli settlements have been able to develop
highly profitable agricultural, mineral, touristic and other businesses.”373
3.158. In its September 2022 Report, the Independent International
Commission of Inquiry, appointed by the Human Rights Council, found 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.”374 In
particular: that “successive Governments of Israel, regardless of political
composition, have promoted the expansion of settlements …”375 in the West Bank,
and that “Israeli officials have publicly expressed their country’s intention to make
the settlements irreversible and annex all or part of Area C.”376
3.159. A case in point is this 2019 declaration by Prime Minister Benjamin
Netanyahu:
“I am guided by several principles when it comes to the West Bank. The
first – this is our homeland. The second – we will continue to build and
develop it. Third – not one resident or community will be uprooted in a
political agreement. Fourth – the Israeli military and security forces will
continue to rule the entire territory, up to the Jordan Valley. Fifth – I am
working to get international ratification of these principles.”377
373 UNOCHA, Humanitarian Fact Sheet on the Jordan Valley and Dead Sea, February 2012
(https://tinyurl.com/229su9e3).
374 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 75
(https://undocs.org/A/77/328).
375 Ibid., para. 51.
376 Ibid., para. 52.
377 “At West Bank Event, Netanyahu Promises No More Settlers, Arabs Will Be Evicted”,
Haaretz, 10 July 2019 (https://tinyurl.com/3zmj3xkt).
120
3.160. In application of these “principles”, Israel’s Prime Minister pledged
that his government would be “applying Israeli sovereignty over all of the
communities” to which Israeli settlers have been transferred and implanted378.
3.161. Israel’s position on the West Bank was spelled out very clearly in the
agreement reached in December 2022 by the political parties that form the current
Israeli government. Article 118 of that agreement emphasized that “[t]he nation of
Israel has a natural right to the Land of Israel”, including “Judea and Samaria”, and
promised that the Prime Minister will promote Israel’s “sovereignty” in the West
Bank:
“The prime minister will generate and promote a policy for the application
of sovereignty in the Area of Judea and Samaria, while selecting the timing
and taking into account all national and international interests of the state of
Israel.”379
3.162. Israel’s objectives in respect of the West Bank have been further
elaborated in the public statements of its Minister of Finance, Bezalel Smotrich,
who also serves as a Minister, within the Ministry of Defence, for “Coordination of
Government Activities in the Territories and the Civil Administration”. This makes
him the senior Israeli government official responsible for administration of the
Occupied Palestinian Territory. Minister Smotrich announced upon his
appointment to this portfolio that he would exercise his “responsibility for the
settlement in Judea and Samaria and for the civil Administration” in order “to make
a real change on the ground.”380 On 19 March 2023, while speaking at an official
event in Paris, the Minister emphasized the point that Israel’s dominion over the
West Bank is intended to be permanent by insisting that there is “no such thing as
Palestinians because there’s no such thing as the Palestinian people”381.
3.163. The remainder of Part B is divided into four Sections. Section I
demonstrates that Israel has enacted legislation and promulgated administrative
378 Israel Prime Minister’s Office, “Cabinet Approves PM Netanyahu’s Proposal to Establish
the Community of Mevo’ot Yeriho & PM’s Remarks at the Start of the Cabinet Meeting”,
15 September 2019 (https://tinyurl.com/yc34cr7n).
379 Coalition Agreement between the Likud Party and the Religious Zionist Party for the
Establishment of a National Government, presented to the Knesset on December 28, 2022,
Article 118 (emphasis added) (Vol. II, Annex 12).
380 “Smotrich after the dispute with Gallant: The time has come for the residents of Judea and
Samaria to stop being second class citizens”, Mivzak Live News, 23 January 2023
(https://tinyurl.com/ycy58r4x).
381 “Smotrich says there’s no Palestinian people, declares his family ‘real Palestinians’”, The
Times of Israel, 20 March 2023 (https://tinyurl.com/3k368zh7).
121
regulations and orders asserting its “sovereignty” over the West Bank, explicitly as
well as implicitly, including by extending its civil and criminal jurisdiction and
authority throughout the territory and assimilating it to Israel itself. Section II
presents numerous official statements made by senior Israeli government leaders
declaring Israel’s “sovereignty” over the West Bank and its determination to retain
the territory permanently. Section III describes the establishment of more than 270
Israeli settlements, housing more than 465,400 Israeli settlers – numbers that
continue to grow each year – distributed throughout the West Bank, in execution of
a deliberate government policy to create facts on the ground that would justify
Israel’s permanent governance of the territory, a strategy that has been called
“victory by settlement” by the Minister in charge of “Coordination of Government
Activities in the Palestinian Territories”382. Section III also addresses Israel’s
measures to facilitate the growth and expansion of its settlements by displacing the
Palestinian population of the West Bank, encouraging emigration to third States, or
forcing confinement to small and disconnected areas. Section IV describes Israel’s
exercise of “sovereignty” over the West Bank by taking for itself the territory’s
most valuable natural resources, especially its supply of fresh water, and by
constructing and maintaining control of critical infrastructure to bind the territory
to itself irrevocably. Section IV is followed by the Conclusions of this Part of
Chapter 3.
I. Israel’s Extension of its Laws, Administrative Orders and
Jurisdiction to the West Bank
3.164. Immediately after Israel seized the West Bank, on 7 June 1967, the
Military Commander of the IOF issued a Proclamation which established a military
government to “take[] over control ‘in the interests of security and public order’”
in the West Bank383 and an Order which established military courts384. On the same
date, the Military Commander issued another Proclamation which stated that:
“All authority of government, legislation, appointment and administration
pertaining to the [West Bank] or its residents will now be exclusively in my
382 “MK’s controversial plan nixes two-state solution, calls for annexation”, The Jerusalem
Post, 11 September 2017 (https://tinyurl.com/yp88a3uz).
383 Military Proclamation No. 1 concerning Assumption of Authority by the Israeli Military
Forces, 7 June 1967 (see Israeli Military Orders in the Occupied Palestinian West Bank 1967-1992,
Second edition, Jerusalem Media & Communications Centre, 1995, p. 1).
384 Military Order No. 3 concerning Establishment of Military Courts (West Bank Area),
7 June 1967 (see Israeli Military Orders in the Occupied Palestinian West Bank 1967-1992, Second
edition, Jerusalem Media & Communications Centre, 1995, p. 2).
122
hands and will be exercised only by me or by any person appointed therefore
by me or acting on my behalf.”385
3.165. Since that date, by legislation and by military order, Israel has extended
and applied its domestic law and jurisdiction to the West Bank. The Independent
International Commission of Inquiry found that:
“Since the start of the occupation, Israel has extended its legal domain in
the West Bank, which has resulted in far-reaching changes to the applicable
law and, in practice, two sets of applicable law: military law and Israeli
domestic law, which has been extended extra-territorially to apply only to
Israeli settlers. This has been done through military orders, legislation and
Supreme Court decisions and includes criminal law, national health
insurance law, taxation laws and laws pertaining to elections.”386
3.166. Israel’s senior officials have not only acknowledged but also boasted
that the government’s intention in applying Israeli law to its settlements and settlers
in the West Bank is to manifest its “sovereignty” over the territory. In 2018,
Minister of Tourism Yariv Levin explained, at a meeting of the Likud Central
Committee: “We’re here to state the obvious: the entire Land of Israel is ours and
we will apply sovereignty to all parts of the land”387.
A. LEGISLATION EXTENDING AND APPLYING ISRAELI LAW TO THE WEST BANK
3.167. Since 1967, Israel has steadily adopted legislation extending and
applying Israeli domestic law to the Israeli settlers and settlements in the West
Bank, assimilating them to Israel itself. As a result, a plethora of Israeli laws
controlling virtually every aspect of daily life and activity, too numerous to
catalogue in this Written Statement, now “regulate the West Bank as if it is a part
of Israel.”388 Israeli settlers are governed by Israeli law – not the law prevailing in
385 Proclamation Regarding Regulation of Administration and Law (The West Bank Region)
(No. 2), 1967, Article 3(a) (Vol. II, Annex 3).
386 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 46
(footnotes omitted) (https://undocs.org/A/77/328).
387 “With Netanyahu Weakened by Investigations, Talk of Annexation Rumbles”, Haaretz,
1 January 2018 (https://tinyurl.com/bdfnptj5).
388 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 14 June 2018, A/HRC/37/75, paras 18 and 20
(https://undocs.org/A/HRC/37/75).
123
the OPT at the time of its military seizure in 1967 nor by the military orders that
apply to the Palestinian people under occupation.
3.168. While Israeli legislation was initially applied extra-territorially to
Israeli settlers and settlements, more recent legislation, especially as adopted since
2018, reflects Israel’s assertion of “sovereignty” over them, and the rest of the
territory it now officially refers to as “Judea and Samaria”. Some examples include:
(a) The legislation dissolving “the Council for Higher Education of Judea and
Samaria” – Israel’s nomenclature for the West Bank – which had operated
under the Military Commander, and transferring the authority vested in that
body to an organ of Israel’s civilian government, the Council for Higher
Education389. The member of the Knesset who introduced the legislation
insisted that “[a]longside the academic importance of the law, there is a clear
element here of applying sovereignty”390. As the Special Rapporteur observed:
“The Law, which was enacted in February 2018, is an illustration of the
direct application of domestic Israeli law to the occupied territory, which is
both forbidden under international law and a clear step towards
annexation.”391
(b) The law, adopted in July 2018, which established that the Administrative
Affairs Court (the Jerusalem District Court) has jurisdiction over petitions
concerning matters in the West Bank, including (i) planning and construction;
(ii) entry to and exit from the territory; and (iii) removal and supervision
orders392. The Secretary-General expressed concern that “in extending the
competence of an Israeli administrative court to the West Bank”, the law
389 The Council for Higher Education (Amendment no. 20) (Higher Education Institutions in
the Area) Law 5778-2018 (Vol. II, Annex 11).
390 “Israel’s Creeping Annexation: Knesset Votes to Extend Israeli Law to Academic
Institutions in the West Bank”, Haaretz, 12 February 2018 (emphasis added)
(https://tinyurl.com/m4dad5h9).
391 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 55 (emphasis added)
(https://undocs.org/A/73/447).
392 The Courts for Administrative Affairs Law (Amendment no. 117) (Authorizing
Administrative Affairs Courts to Adjudicate Administrative Decisions by Israeli Authorities
Operating in the Area) 5778-2018 (Vol. II, Annex 10).
124
“constitute[s] an additional step towards blurring the distinction between Israel
and the Occupied Palestinian Territory.”393
(c) And especially, the “Jewish Nation State Law”, adopted in July 2018 as a
Basic Law, that is, one with quasi-constitutional status. This law proclaims
that “[t]he realization of the right to national self-determination in the State of
Israel is exclusive to the Jewish people” and that, with respect to the OPT,
“[t]he State views the development of Jewish settlement as a national value,
and shall act to encourage and promote its establishment and consolidation.”394
The High Commissioner for Human Rights reported in 2019 that the
legislation recently enacted by the Knesset was “contributing to the de facto
annexation of the West Bank.”395
393 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and the occupied Syrian Golan, 5 October 2018, A/73/410, para. 10
(footnote omitted) (https://undocs.org/A/73/410).
394 Basic Law: Israel as the Nation-State of the Jewish People, 19 July 2018, Articles 1(c)
and 7 (https://tinyurl.com/fe5b4m7j).
395 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
30 January 2019, A/HRC/40/42, para. 12 (https://undocs.org/A/HRC/40/42). In addition to the
primary legislation described in this text, Israeli Government Ministers have promulgated
regulations, or secondary legislation, which extend Israeli laws to the West Bank in order to further
assimilate the territory. As Professor E. Benvenisti explains, “[s]econdary legislation by government
ministers” has been “very effective in equalizing economic conditions in the settlements with those
in Israel” (The International Law of Occupation, 2nd edn. (Oxford University Press, 2012), p. 235).
For example, in 1982 regulations were promulgated which extended state insurance to cover Israelis
who lost investments in the West Bank as a result of drought and to cover loss of property in the
West Bank incurred as a result of its “Israeli character” (see the Property Tax and Compensation
Fund (Payment of Compensation for Damages) (Israeli External Property) Regulations, 5742-1982).
Similarly, in 1987 Israel’s Minister of Labor and Social Affairs promulgated regulations which
extended Israel’s National Insurance Law to Jews who work in the West Bank and Jews who
volunteer in Israeli settlements (See the National Insurance Regulations (Application on Special
Categories of Insured), 5747-1987 and the National Insurance Regulations (Categories of
Volunteers Outside Israel), 5747-1987). Israeli authorities have also promulgated measures to
extend into the West Bank the administrative and law enforcement powers of various Israeli state
bodies and officials. For example, as noted by Professor Benvenisti: “The Israeli police force’s
powers are extended to offences committed by Israelis in the territories; Israeli tax collectors are
empowered to act in the territories with regard to taxes and duties due to the Israeli Treasury as if
they were operating in Israel.” (E. Benvenisti, Legal Dualism. The Absorption of the Occupied
Territories into Israel (Westview Press, 1990), p. 22 (footnotes omitted)).
125
B. ORDERS PROMULGATED BY THE MILITARY COMMANDER
3.169. The Israeli military authorities have promulgated “more than 1,800
military orders … covering such issues as security, taxation, transportation, land
planning and zoning, natural resources, travel and the administration of justice.”396
3.170. The multitude of orders which have expressly extended the application
of Israeli laws to the West Bank “confer special status on Jewish settlements … by
applying to these territorial units certain aspects of Israeli law in various spheres”
and “granting them the privileges enjoyed by localities within Israel.”397
3.171. As the Special Rapporteur determined in 2022:
“Politically and legally, Jewish Israeli settlers enjoy the same fulsome
citizenship rights and protections as Israeli Jews living inside the country’s
borders of 1949. The 475,000 Israeli settlers in the West Bank, all of whom
live in Jewish only settlements, have the full panoply of laws and benefits
of the citizenship of Israel extended to them personally and
extraterritorially. Like Israelis in Tel Aviv or Eilat, the West Bank settlers
have the same access to health insurance, national insurance, social services,
education, regular municipal services and the right of entry into and out of
Israel and around much of the West Bank. They also receive[] targeted
benefits and incentives from the Government of Israel to live and work in
the settlements … These settlers have the right to vote in Israeli elections,
even though Israeli laws formally restrict the ability of Israeli citizens who
live outside the country’s territory to vote.”398
C. ASSUMPTION OF DIRECT ADMINISTRATIVE POWER OVER
THE WEST BANK BY ISRAEL’S GOVERNMENT
3.172. Israel has recently taken steps to assume for its governmental
authorities the administrative powers of the Military Commander of the OPT,
including in the West Bank. The agreement of the political parties that formed the
new government which took office on 29 December 2022 provided for the transfer
of significant powers of control and governance of the West Bank from the Israeli
396 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 41
(https://undocs.org/A/HRC/49/87).
397 A. Gross, The Writing on the Wall: Rethinking the International Law of Occupation
(Cambridge University Press, 2017), p. 174.
398 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 39 (footnote omitted)
(https://undocs.org/A/HRC/49/87).
126
military to a new civilian Minister within the Ministry of Defense399. The
significance of this change was highlighted in the Coalition Agreement between the
political parties that formed Israel’s government:
“The splitting of the Defense Ministry and the appointment of a Defense
Minister who is detached from military considerations and is only
committed to advancing Israel’s political interests according to the new
organizing normative framework, is a dramatic organizational change. It
effectively shifts civilian responsibilities from the military commander
entrusted with them under the law of occupation to the civilian government
of Israel.”400
3.173. To give effect to this Agreement, the Knesset enacted legislation
amending the Basic Law on The Government; under this amendment a new
ministerial position was established within the Ministry of Defence for “the
Coordination of Government Activities in Territories and the Civil Administration
therein”401. As indicated above, Mr. Bezalel Smotrich, the head of the Religious
Zionism Party, was appointed to that post, as well as the post of Minister of Finance.
3.174. Upon his appointment, the Minister underscored his commitment to
civilian administration of the West Bank and the full application of Israeli laws to
the territory402. To facilitate this, the Government, inter alia, transferred authority
for providing legal advice in respect of the Civil Administration from the Israeli
military to the Ministry of Defence, such that the Legal Adviser in the West Bank
would answer directly to the Minister rather than the Military Commander403.
3.175. On 23 February 2023, the transfer of powers and responsibilities for the
Civil Administration in the West Bank formally took effect. In a public statement,
Minister Smotrich, who assumed these responsibilities, declared that “legislation
399 Coalition Agreement between the Likud Party and the Religious Zionist Party for the
Establishment of a national government, 28 December 2022, Appendix C, section 21 (Vol. II,
Annex 12).
400 R. Levine-Schnur et al., “A Theory of Annexation”, 2003, p. 37
(https://tinyurl.com/mred48e6).
401 “Days before coalition is to take power, law clears path for ministers Deri, Smotrich”, The
Times of Israel, 27 December 2022 (https://tinyurl.com/3yrf2uux).
402 “Smotrich after the Dispute with Gallant: ‘The time has come for the residents of Judea and
Samaria to stop being second class citizens’”, Mivzak Live, 23 January 2023
(https://tinyurl.com/ycy58r4x).
403 Coalition Agreement between the Likud Party and the Religious Zionist Party for the
Establishment of a national government, 28 December 2022, Appendix C, section 21 (Vol. II,
Annex 12).
127
on all (settlement) civilian matters will be brought in line with Israeli law.” Under
this regime:
“Spatial planning in the West Bank will come under the authority of the
Minister [Smotrich], including authority over the High Planning Council,
responsible for establishing and expanding settlements as well as
considering Palestinian spatial plans and permit applications in Area C …
All matters related to the regularization of ‘informal’ settlement outposts
and satellite neighborhoods will come under the sole authority of the
Minister … The Enforcement Unit, responsible for the destruction of
Palestinian-owned structures built in Area C, as well as the seizure and
destruction of donor-funded humanitarian relief, will come under the sole
authority of the Minister … The Minister will have the authority to declare
new ‘natural reserves’ … All matters related to housing, land, and property
rights, including land ownership settlement, surveying, and registration, will
come under the sole authority of the Minister. … The planning and
implementation of infrastructure across the West Bank … will come under
the exclusive authority of the Minister, including surface roads, water and
sanitation, energy and renewable energy, telecommunications, and waste
management.”404
3.176. The Israeli NGOs Yesh Din, Association of Civil Rights in Israel and
Breaking the Silence have characterized the transfer of such far-reaching powers
over the West Bank from the military administration to the Israeli government as
“legal, de jure annexation”405.
3.177. Whether Israel’s annexation of the West Bank is de jure or de facto, or
both, what is abundantly clear is that Israel’s policy is to exercise “sovereignty”
over this territory.
3.178. The Minister appointed by the Prime Minister as head of the Civil
Administration has publicly promoted a plan for the West Bank in which “there is
404 See Foundation for Middle East Peace, Settlement & Annexation Report: February 24,
2023 (https://tinyurl.com/5awbpa64).
405 “Smotrich handed sweeping powers over West Bank, control over settlement planning”,
The Times of Israel, 23 February 2023 (https://tinyurl.com/sn6wvn9h). The Israeli newspaper
Haaretz has likewise stated that: “In legal terms, the assignment of governmental powers in the West
Bank to its new civilian governor, particularly alongside the plan to expand the dual justice system,
so that Israeli law will apply fully and directly to settlers in the West Bank and civilian Israeli
authorities will wield direct governmental powers in the settlements – provisions that are also part
of the Gallant-Smotrich agreement – constitutes de jure annexation of the West Bank.” (See “Israel’s
Cabinet Just Advanced Full-fledged Apartheid in the West Bank”, Haaretz, 26 February 2023
(https://tinyurl.com/4nutrere).)
128
room for only one expression of national self-determination west of the Jordan
River: that of the Jewish nation. Subsequently, an Arab State actualizing Arab
national aspirations cannot emerge within the same territory.”406 This objective, he
has written, will be achieved “especially with deeds”, in particular:
“It requires the application of full Israeli sovereignty to the heartland regions
of Judea and Samaria, and end of conflict by settlement in the form of
establishing new cities and settlements deep inside the territory and bringing
hundreds of thousands of additional settlers to live therein. This process will
make it clear to all that the reality in Judea and Samaria is irreversible, and
that the State of Israel is here to stay, and that the Arab dream of a state in
Judea and Samaria is no longer viable.”407
II. Declarations by Senior Israeli Government Officials Asserting
Israel’s “Sovereignty” over the West Bank
3.179. The Israeli Minister currently in charge of administering the West Bank
has been particularly direct in identifying Israel’s goal of maintaining Israeli
“sovereignty” over the entire territory, to the exclusion of the independence of the
State of Palestine. But his statements are no different in substance than those made
repeatedly by senior Israeli government officials before him, including a succession
of Prime Ministers.
3.180. Prime Minister Benjamin Netanyahu has long been a prominent and
outspoken advocate of annexation. In 2010, he made the following commitment at
the “Gush Etzion” settlement to a group of Israeli settlers in the West Bank:
“Our message is clear: We are planting here, we will stay here, we will build
here, this place will be an inseparable part of the State of Israel for
eternity …”408.
3.181. On 31 December 2017, the 1,000-member central committee of the
ruling Likud party unanimously adopted a resolution supporting Israeli
“sovereignty” over the West Bank. The resolution “call[ed] on Likud’s elected
406 B. Smotrich, “Israel’s Decisive Plan”, Hashiloach, 7 September 2017
(https://hashiloach.org.il/israels-decisive-plan/).
407 Ibid.
408 “Netanyahu Says Some Settlements to Stay in Israel”, New York Times, 24 January 2010
(https://tinyurl.com/2meyxrn3).
129
officials to act to allow free construction and to apply the laws of Israel and its
sovereignty to all liberated areas of Jewish settlement in Judea and Samaria.”409
3.182. In March 2018, Israel’s Deputy Defense Minister, Rabbi Eli Ben-
Dahan, publicly declared that:
“We have to focus on the main issue. We are in Judea and Samaria because
this is our land, and we are here so that we will never leave it. Sovereignty
must be applied in Judea and Samaria as soon as possible.”410
3.183. Based on statements such as these from Israel’s highest authorities, as
well as the continued growth and expansion of Israeli settlements and the enactment
of recent legislation, the Special Rapporteur concluded in his 2018 Report:
“Those statements of political intent, together with the colonizing facts on
the ground of Israel, its legislative activity and its refusal to adhere to its
solemn obligations under international law or to follow the direction of the
international community with respect to its 51-year-old occupation, have
established the probative evidence that Israel has effectively annexed a
significant part of the West Bank and is treating that territory as its own.”411
3.184. On 6 April 2019, Prime Minister Netanyahu declared:
“From my perspective, any point of settlement is Israeli, and we have
responsibility, as the Israeli government. I will not uproot anyone, and I will
not transfer sovereignty to the Palestinians.”412
3.185. On 8 August 2019, Prime Minister Netanyahu declared that:
“I want American recognition for our sovereignty over the Jordan Valley.
This is important. ... The time has come to apply Israeli sovereignty over
409 “Netanyahu’s Party Votes to Annex West Bank, Increase Settlements”, Haaretz,
1 January 2018 (https://tinyurl.com/mr2f488c).
410 “Sovereignty is not the granting of an immediate right to vote”, Israel National News,
27 March 2018 (https://tinyurl.com/3xdtdncr).
411 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 59 (emphasis added)
(https://undocs.org/A/73/447).
412 “Israel’s Netanyahu vows to annex West Bank settlements if re-elected”, Euronews,
7 April 2019 (https://tinyurl.com/yuxj2d7e).
130
the Jordan Valley and to also arrange the status of all Jewish communities
in Judea and Samaria... They will be part of the State of Israel.”413
3.186. Less than a month after that, the Prime Minister visited the Israeli
settlement of Elkana in the occupied West Bank and declared that “[t]his is the old,
original home of the Jewish people and we will build more in Elkana. … [W]e will
apply Jewish sovereignty over all communities as part of the land of Israel and the
State of Israel.”414
3.187. On 8 January 2020, the Defence Minister, Naftali Bennett, informed a
think tank in Jerusalem that “[o]ur objective is that within a short amount of time …,
we will apply Israeli sovereignty to all of Area C, not just the settlements, not just
this bloc or another”. He added: “I solemnly declare that Area C belongs to
Israel … About a month ago, I held a meeting and explained the ways that the State
of Israel will do everything possible to ensure that these areas [Area C] will be part
of the State of Israel.”415
3.188. On 17 May 2022, Prime Minister Naftali Bennett gave a speech to
settlers in the West Bank settlement of Elkana in which he emphasized that the
settlement was, and always would be, part of Israel:
“With the help of God, we will also be here at the celebrations of Elkana’s
fiftieth and seventy-fifth, 100th, 200th and 2,000th birthdays, within a united
and sovereign Jewish State in the Land of Israel.”416
3.189. On 1 November 2022, a new government led by Prime Minister
Netanyahu was elected. The party platform on which the Prime Minister and his
coalition partners campaigned included a pledge to establish Israel’s “de facto
sovereignty” over the West Bank: “De facto sovereignty: Shutting down the Civil
413 Israel Prime Minister’s Office, “Excerpts from PM Netanyahu’s Remarks to the Makor
Rishon Economic, Society and Innovation Conference in Jerusalem”, 8 December 2019 (emphasis
added) (https://tinyurl.com/2p8tc8z8).
414 Israel Prime Minister’s Office, “PM Netanyahu Attends Ceremony Marking the Start of
the 2019-2020 School Year and Gives a First Grade Lesson, together with Education Minister Rafi
Peretz, at the Kramim State Religious School in Elkana”, 1 September 2019 (emphasis added)
(https://tinyurl.com/vnj49ann).
415 “Bennett: Israel is working to apply sovereignty to all of Area C”, Middle East Monitor,
9 January 2020 (emphasis added) (https://tinyurl.com/2p88djvm).
416 See the Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 53
(https://undocs.org/A/77/328).
131
Administration and the transfer of responsibility over the settlements in Judea and
Samaria to government ministries.”417
3.190. The new government was officially sworn in on 29 December 2022418.
The first of its “Guiding Principles” stated that:
“The Jewish people have an exclusive and indisputable right to all parts of
the Land of Israel. The Government will promote and develop settlement in
all parts of the Land of Israel – the Galilee, the Negev, the Golan and Judea
and Samaria.”419
3.191. The Coalition Agreement between the governing parties, Likud and
Religious Zionism, expressly spelled out the Government’s commitment to
formally apply “sovereignty” over the West Bank:
“[T]he Prime Minister will lead to the formulation and promotion of policy
in which sovereignty will be applied in Judea and Samaria, while choosing
the timing and weighing all the national and international interests of the
State of Israel.”420
3.192. To execute this policy, the Prime Minister transferred responsibility for
Civil Administration of the Occupied Palestinian Territory to a new Minister in the
Ministry of Defence, who boldly asserted on 18 May 2023 that the “core mission”
of the Israeli government is to increase the number of settlements in the West Bank
by another 500,000 within two years421. Prior to his appointment as Minister, he
had written that Israel’s “national ambition” for the territory between the Jordan
417 See “Peace Now group: Smotrich’s demand could lead to ‘de facto annexation’ of West
Bank”, The Times of Israel, 24 November 2022 (https://tinyurl.com/366xsmxs).
418 “37th Government of the State of Israel is Sworn In”, Knesset News, 29 December 2022
(https://tinyurl.com/2sj7dt3n).
419 Yesh Din, OFEK, Breaking the silence, ACRI, “Policy paper: What Israel’s 37th
government’s guiding principles and coalition agreements mean for the West Bank”, January 2023,
p. 1 (https://tinyurl.com/rwsr44vp). See Coalition Agreement between the Likud Party and the
Religious Zionist Party for the Establishment of a national government, 28 December 2022,
Appendix A (Vol. II, Annex 12).
420 Coalition Agreement between the Likud Party and the Religious Zionist Party for the
Establishment of a national government, 28 December 2022, point 118 (emphasis added) (Vol. II,
Annex 12). See also ibid., Appendix A.
421 “Far-right Israeli Minister Lays Groundwork for Doubling West Bank Settler Population”,
Haaretz, 18 May 2023 (https://tinyurl.com/ym6pe63c).
132
River and the Mediterranean Sea consists of “imposing sovereignty on all Judea
and Samaria” and thus creating “a clear and irreversible reality on the ground”422:
“At this stage we will establish the most important basic fact: We are here
to stay. We will make it clear that our national ambition for a Jewish State
from the river to the sea is an accomplished fact, a fact not open to
discussion or negotiation.
This stage will be realized via a political-legal act of imposing sovereignty
on all Judea and Samaria, with the concurrent acts of settlement: the
establishment of cities and towns, the laying down of infrastructure as is
customary in ‘little’ Israel and the encouragement of tens and hundreds of
thousands of residents to come live in Judea and Samaria. In this way we
will create a clear and irreversible reality on the ground.”423
3.193. As detailed in the following Section, the establishment of an
“irreversible reality on the ground”, through the encouragement and effective
transfer of tens and hundreds of thousands of Israelis to live in the OPT, including
East Jerusalem, has been Israel’s aim since 1967. In flagrant violation of its legal
obligations under the Fourth Geneva Convention, and in defiance of repeated
condemnation and demands by the competent organs of the United Nations, Israel
has strenuously pursued that objective through the creation of a vast number of
strategically located settlements in the West Bank and through the adoption of an
oppressive and discriminatory regime, including the demolition of many thousands
of Palestinian homes and other properties, designed to forcibly displace Palestinians
from the West Bank.
III. Israel’s Establishment of Hundreds of Israeli Settlements
in the West Bank and its Displacement of Palestinians
A. ISRAEL’S CONSTRUCTION OF SETTLEMENTS AND IMPLANTATION OF
HUNDREDS OF THOUSANDS OF ISRAELI SETTLERS IN THE WEST BANK
3.194. Israel’s intended “irreversible reality on the ground” is that there are
now more than 270 Israeli settlements in the West Bank, with more than 465,000
Israeli settlers424, in addition to the 14 settlements and more than 233,000 settlers
422 B. Smotrich, “Israel’s Decisive Plan”, Hashiloach, 7 September 2017
(https://tinyurl.com/2s3k69sn).
423 Ibid.
424 Peace Now, Israel’s Settlements 2023 (https://tinyurl.com/2nh4t2s8).
133
in East Jerusalem. These settlements have purposely been established in strategic
locations so as to fundamentally disrupt the territorial contiguity of the OPT in a
manner designed to frustrate the independence of the State of Palestine. Since the
first settlements were established in the wake of the 1967 military conquest and
occupation of the West Bank, including East Jerusalem, successive Israeli
governments have supported and facilitated their proliferation, growth, expansion
and entrenchment. Figure 3.9 below, is based on official Israeli government
statistics. It shows how the number of Israeli settlers has steadily expanded yearby-
year, starting from under 5,000 in 1970; then to 12,500 in 1980; 81,900 in 1990;
198,300 in 2000; 311,000 in 2010; and 465,400 in 2021425.
Figure 3.9. Number of Settlers by Year (published by Peace Now)426
3.195. The same pattern is reflected in the official reports of United Nations
bodies427. In a 2018 Report, for example, the Special Rapporteur advised the
425 See the chart published by Peace Now at: https://tinyurl.com/ycy5f5hr.
426 Ibid.
427 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, paras. 24-28 (https://undocs.org/A/HRC/22/63); Report of the Special Rapporteur on
the situation of human rights in the Palestinian territories occupied since 1967, 22 October 2018,
A/73/447, paras. 49-50 (https://undocs.org/A/73/447); Report of the Special Rapporteur on the
situation of human rights in the Palestinian territories occupied since 1967, 29 July 2021,
A/HRC/47/57, para. 62 (https://undocs.org/A/HRC/47/57); 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, para. 34 (https://undocs.org/A/HRC/50/21).
134
General Assembly that “[t]he first Israeli settlements in the West Bank, initially
camouflaged as military camps, were established in the summer of 1967. Since
then, Israel has built and incentivized approximately 230 settlements throughout the
West Bank, inhabited by more than 400,000 settlers.”428 In its 2022 Report, the
Independent International Commission of Inquiry found that there were more than
490,000 Israeli settlers in the West Bank429.
3.196. The scale of the settlement enterprise, and the amount of land in the
West Bank which has been seized in order to enable it, is vast. In 60 % of the West
Bank, Israel has unilaterally set aside almost all of the land for its settlements and
their related infrastructure and military and security networks430, leaving just 1 %
for Palestinian places of residence for the 300,000 Palestinians who have been
living there and virtually preventing any more Palestinians from moving to the area.
3.197. Since 1967, Israel has expropriated vast tracts of land throughout the
West Bank not only for settlement construction, but also industrial zones, farming
and grazing land, and roads for the exclusive enjoyment of its settlers431.
3.198. Based on these facts, and taking account of the repeated declarations by
Israel’s Prime Ministers and other official government spokespersons that Israel
would never dismantle its settlements or remove its settlers from the OPT, Israel’s
“settlement enterprise” has been described as “the political and demographic engine
that has transformed the Israeli occupation into an annexation.”432 Likewise, the
Independent International Commission of Inquiry has found that Israel’s
establishment of settlements in, and transfer of population to, the West Bank are
“[a]ctions by Israel that are intended to create irreversible facts on the ground and
expand its control over territory … as well as drivers of its permanent occupation”,
428 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 49 (footnote omitted)
(https://undocs.org/A/73/447).
429 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, para. 34
(https://undocs.org/A/HRC/50/21).
430 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 19 October 2016, A/71/554, para. 52 (https://undocs.org/A/71/554);
World Bank, West Bank and Gaza: Area C and the Future of the Palestinian Economy,
2 October 2013, para. 9 (https://tinyurl.com/54p6rc4t).
431 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 39
(https://undocs.org/A/77/328).
432 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 60 (footnote omitted)
(https://undocs.org/A/73/447).
135
and that “[t]he settlement enterprise is the principal means by which those results
are achieved.”433
3.199. Israel has pursued its “settlement enterprise” and expanded it in
defiance of numerous resolutions by the Security Council and General Assembly
condemning the acquisition of territory by military force as contrary to international
law and demanding the removal of Israeli forces, the dismantlement of the
settlements and the withdrawal of the settlers. Beginning in November 1967, the
Security Council, in resolution 242 “[e]mphasiz[ed] the inadmissibility of the
acquisition of territory by war” and called for “withdrawal of Israel armed forces
from territories occupied in the recent conflict”434. In 1971, Security Council
resolution 298 “[r]eaffirm[ed] the principle that acquisition of territory by military
conquest is inadmissible”435. In 1972, the General Assembly, in resolution 3005
(XXVII), called upon Israel “to rescind forthwith, and desist from, all such policies
and practices” including “(a) [t]he annexation of any part of the occupied
territories; [and] (b) [t]he establishment of Israeli settlements in those territories
and the transfer of parts of an alien population into the occupied territories”436.
3.200. In March 1979, the Security Council adopted resolution 446, which
directly addressed Israel’s establishment of settlements in Palestinian territory:
“Affirming once more that the Geneva Convention relative to the Protection
of Civilian Persons in Time of War, of 12 August 1949, is applicable to the
Arab territories occupied by Israel since 1967, including Jerusalem, [the
Security Council] [d]etermines that the policy and practices of Israel in
establishing settlements in the Palestinian and other Arab territories
occupied since 1967 have no legal validity and constitute a serious
obstruction to achieving a comprehensive, just and lasting peace in the
Middle East”437.
On this basis, the Security Council:
“Call[ed] once more upon Israel, as the occupying Power, to abide
scrupulously by the [1949 Fourth Geneva Convention], to rescind its
previous measures and to desist from taking any action which would result
433 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 75
(emphasis added) (https://undocs.org/A/77/328).
434 Security Council, Resolution 242 (1967), 22 November 1967, preamble and para. 1.
435 Security Council, Resolution 298 (1971), 25 September 1971, preamble.
436 General Assembly, Resolution 3005 (XXVII), 15 December 1972, para. 2.
437 Security Council, Resolution 446 (1979), 22 March 1979, preamble and para. 1 (emphasis
added).
136
in changing the legal status and geographical nature and materially affecting
the demographic composition of the Arab territories occupied since 1967,
including Jerusalem, and, in particular, not to transfer parts of its own
civilian population into the occupied Arab territories.”438
3.201. Resolution 446 also established a Commission consisting of three
members of the Security Council “to examine the situation relating to settlements”
and “to submit its report to the Security Council”. At the time of this resolution, in
1979, there were approximately 10,000 Israeli settlers in the West Bank439.
3.202. The Security Council Commission issued its report in July 1979. It
found that:
“Supported by the strong influence of various private groupings, the
settlement policy is an official government programme which is
implemented by a number of organizations and committees representing
both the Government and the private sector inside and outside Israel.”440
Further:
“The Commission found evidence that the Israeli Government is engaged
in a wilful, systematic and large-scale process of establishing settlements in
the occupied territories for which it should bear full responsibility.”441
3.203. Based on these findings, the Commission recommended that “the
Security Council, bearing in mind the inalienable right of the Palestinians to return
to their homeland, launch a pressing appeal to the Government and people of Israel,
drawing again their attention to the disastrous consequences which the settlement
policy is bound to have on any attempt to reach a peaceful solution in the Middle
East.”442 In this regard, “as a first step, Israel should be called upon to cease on an
urgent basis the establishment, construction and planning of settlements in the
occupied territories.”443
3.204. Upon receipt of the Commission’s report, the Security Council adopted
resolution 452 which stated that “the policy of Israel in establishing settlements in
438 Ibid., para. 3 (emphasis added).
439 See the chart published by Peace Now at: https://tinyurl.com/ycy5f5hr.
440 Report of the United Nations Security Council Commission established under resolution
446 (1979), 12 July 1979, S/13450, para. 226 (emphasis added) (https://undocs.org/S/13450).
441 Ibid., para. 228.
442 Ibid., para. 238.
443 Ibid., para. 239.
137
the occupied Arab territories has no legal validity and constitutes a violation of the
[Fourth Geneva Convention]” and that the Security Council therefore “[a]ccepts
the recommendations contained in the report of the Commission”. The resolution
“[c]alls upon the Government and people of Israel to cease, on an urgent basis, the
establishment, construction and planning of settlements in the Arab territories
occupied since 1967, including Jerusalem”444.
3.205. Despite this, Israel continued – and accelerated – its program for “the
establishment, construction and planning of settlements” in the West Bank,
including and particularly in and around Jerusalem. Israel’s defiance of the Security
Council’s resolutions led the Council to adopt resolution 465 in March 1980. In this
resolution, the Security Council:
“Deplore[ed] the decision of the Government of Israel officially to support
Israeli settlements in the Palestinian and other Arab territories occupied
since 1967,
.......................................................................................................................
“Determine[d] that all measures taken by Israel to change the physical
character, demographic composition, institutional structure or status of the
Palestinian or other Arab territories occupied since 1967, including
Jerusalem, or any part thereof have no legal validity and that Israel’s policy
and practices of settling parts of its population and new immigrants in those
territories constitute a flagrant violation of the [Fourth Geneva Convention]
and also constitute a serious obstruction to achieving a comprehensive, just
and lasting peace in the Middle East”445.
3.206. Resolution 465 then:
“Strongly deplore[d] the continuation and persistence of Israel in pursuing
those policies and practices and call[ed] upon the Government and people
of Israel to rescind those measures, to dismantle the existing settlements and
in particular to cease, on an urgent basis, the establishment, construction and
planning of settlements in the Arab territories occupied since 1967,
including Jerusalem”446.
3.207. Again, Israel chose to defy the Security Council and continue to violate
its legal obligations under the Fourth Geneva Convention by pursuing – and
444 Security Council, Resolution 452 (1979), 20 July 1979, para. 3.
445 Security Council, Resolution 465 (1980), 1 March 1980, preamble and para. 5.
446 Ibid., para. 6.
138
dramatically expanding – its establishment of settlements in Palestinian territory.
By 1983, as shown below in Figure 3.10 at p. 139, a United Nations map, Israeli
settlements dotted the landscape of the entire West Bank.
3.208. The Court addressed the illegality of Israel’s settlements in Palestinian
territory in its 2004 Advisory Opinion, at paragraph 120. After recalling Article 49,
paragraph 6 of the Fourth Geneva Convention, the Court observed that, “the
information provided to the Court shows that … Israel has conducted a policy and
developed practices involving the establishment of settlements in the Occupied
Palestinian Territory, contrary to the terms of Article 49, paragraph 6”. The Court
noted that the Security Council had declared that such policies and practices “have
no legal validity” and that “Israel’s policy and practices of settling parts of its
population and new immigrants in [the occupied] territories” constitute a “flagrant
violation” of the Fourth Geneva Convention. Accordingly:
“The Court concludes that the Israeli settlements in the Occupied
Palestinian Territory (including East Jerusalem) have been established in
breach of international law.”447
3.209. In December 2016, the Security Council, faced with Israel’s flagrant
and ongoing violation of its prior resolutions and the Court’s Wall Opinion, adopted
resolution 2334. The resolution began by reaffirming the “inadmissibility of the
acquisition of territory by force,” and the “obligation of Israel, the occupying
Power, to abide scrupulously by its legal obligations and responsibilities under the
Fourth Geneva Convention.” Recalling the Wall Opinion rendered on 9 July 2004,
resolution 2334 (2016):
“Reaffirm[ed] that the establishment by Israel of settlements in the
Palestinian territory occupied since 1967, including East Jerusalem, has no
legal validity and constitutes a flagrant violation under international law and
a major obstacle to the achievement of the two-State solution and a just,
lasting and comprehensive peace; [and]
“Reiterate[d] its demand that Israel immediately and completely cease all
settlement activities in the occupied Palestinian territory, including East
Jerusalem, and that it fully respect all of its legal obligations in this
regard”448.
447 Wall Opinion, p. 184, para. 120.
448 Security Council, Resolution 2334 (2016), 23 December 2016, paras. 1 and 2.
Area
Enlarged
WEST BANK ISRAELI SETTLEMENTS
AS OF MAY 1983
Source: Map No. 3243 United Nations, May 1983. Figure 3.10
139
141
3.210. Israel continued to flout the Security Council’s resolutions, including
resolution 2334, and its obligations under international law449. In 2018, Israel
enshrined its commitment to settlement expansion in the West Bank in its Basic
Law, which openly declares: “The State views the development of Jewish
settlement as a national value, and shall act to encourage and promote its
establishment and consolidation.”450
3.211. That is precisely what Israel has done and has publicly pledged to
continue doing. Between the adoption of Security Council resolution 2334 in 2016
and the enactment of the Basic Law “Israel-The Nation State of the Jewish People”
two years later, the number of Israeli settlers in the West Bank grew from 399,300
to 427,800. Between the adoption of this Basic Law and the end of 2021, the number
increased to 465,400451.
3.212. In December 2022, the General Assembly, in resolution 77/126:
“Condemn[ed] settlement activities by Israel, the occupying Power, in the
Occupied Palestinian Territory, including East Jerusalem, as violations of
international humanitarian law, relevant United Nations resolutions, … and
as actions in defiance of the calls by the international community to cease
all settlement activities; [and]
Reiterat[ed] its demand for the immediate and complete cessation of all
Israeli settlement activities in all of the Occupied Palestinian Territory,
including East Jerusalem, and in the occupied Syrian Golan, and calls in this
regard for the full implementation of all the relevant resolutions of the
Security Council, including, inter alia, resolutions 446 (1979), 452 (1979)
449 In explaining why the United States had chosen not to vote against this resolution, Secretary
of State John Kerry stated publicly that: “we have to be clear about what is happening in the west
bank. … [P]olicies of this government, which the prime minister himself just described, as more
committed to settlements than any in Israel’s history are leading … towards one-state. … Israel has
increasingly consolidated control over much of the west bank for its own purposes. … I don’t think
most people in Israel and certainly in the world, have any idea how broad and systematic the process
has become, but the facts speak for themselves. … [J]ust recently, the government approved a
significant new settlement well east of the barrier, closer to Jordan than Israel. What does that say
to Palestinians in particular, but also to the United States and the world about Israel’s intentions?”
(“Read John Kerry’s Full Speech on Israeli Settlements and a Two-State Solution”, Time,
28 December 2016 (https://time.com/4619064/john-kerrys-speech-israel-transcript/)).
450 Basic Law: Israel as the Nation-State of the Jewish People, 19 July 2018, Article 7
(https://tinyurl.com/fe5b4m7j).
451 Peace Now, Israel’s Settlements 2023 (https://tinyurl.com/2nh4t2s8).
142
of 20 July 1979, 465 (1980), 476 (1980), 478 (1980), 1515 (2003) of
19 November 2003 and 2334 (2016)”452.
3.213. The Agreement of the parties that have constituted Israel’s government
since 29 December 2022 ignored these Security Council and General Assembly
resolutions, and, to the contrary, provided for the expansion of Israeli settlements
in Palestinian territory by a variety of administrative and structural measures453.
3.214. Under this Agreement, Israel’s expansion of settlements in the OPT has
accelerated. In February 2023, Israel authorized the construction of 7,349 new
housing units for Israeli settlers in the West Bank. This led the Security Council,
through its President, to issue a statement on 20 February 2023 that:
“expresse[d] deep concern and dismay with Israel’s announcement on
February 12, 2023, announcing further construction and expansion of
settlements and the ‘legalization’ of settlement outposts.
.......................................................................................................................
The Security Council strongly underscores the need for all parties to meet
their international obligations and commitments; strongly opposes all
unilateral measures that impede peace, including, inter alia, Israeli
construction and expansion of settlements, confiscation of Palestinians’
land, and the ‘legalization’ of settlement outposts, demolition of
Palestinians’ homes and displacement of Palestinian civilians.”454
3.215. Nevertheless, on 22 March 2023, Israel published tenders for 940 more
new housing units in the West Bank455. Then, on 18 June 2023, the Cabinet
conferred almost complete control over granting planning approval to the
construction of settlements in the West Bank to Israel’s Minister for the
Coordination of Government Activities in Territories and the Civil Administration
and granted retroactive approval to the construction of several “outposts” in the
452 General Assembly, Resolution 77/126, 12 December 2022, preamble and para. 3.
453 Yesh Din, OFEK, Breaking the silence, ACRI, “Policy paper: What Israel’s 37th
government’s guiding principles and coalition agreements mean for the West Bank”, January 2023,
pp. 4-5 (https://tinyurl.com/rwsr44vp).
454 Security Council, Statement by the President of the Security Council, 20 February 2023,
S/PRST/2023/1, p. 1 (https://undocs.org/S/PRST/2023/1).
455 Peace Now, Tenders were published for 1,029 housing units: 940 in the West Bank, and 89
in East Jerusalem, 24 March 2023 (https://tinyurl.com/9t98wedd).
143
West Bank456. Later the same day, the Minister, Bezalel Smotrich, published a
statement on Twitter expressing the intention to construct “thousands more
settlement units” in the West Bank:
“The construction boom in Judea and Samaria and all over our country
continues. As we promised, today we are advancing the construction of
thousands more units in Yosh [an Israeli settlement in the West Bank]. I
thank the Prime Minister and the Minister of Defense for the cooperation
and the Settlement Administration and Planning Office for their hard and
precise work. We will continue to develop the settlement and strengthen the
Israeli hold on the territory.”457
3.216. The flagrant illegality of such a colonial and annexationist policy is
indisputable, as has repeatedly been highlighted by numerous United Nations
bodies. In direct response to Israel’s actions, on 19 June 2023 the spokesperson for
the Secretary-General published a statement on his behalf:
“The Secretary-General is deeply troubled by yesterday’s decision by the
Israeli Government to amend settlement planning procedures. The changes
can be expected to expedite the advancement of Israeli settlement plans in
the occupied West Bank, including East Jerusalem. He is also deeply
alarmed by the anticipated advancement next week of over 4,000 settlement
housing units by Israeli planning authorities.
The Secretary-General reiterates that settlements are a flagrant violation of
international law. They are a major obstacle to the realization of a viable
two-State solution and a just, lasting and comprehensive peace. The
expansion of these illegal settlements is a significant driver of tensions and
violence and deepens humanitarian needs. It further entrenches Israel’s
occupation of Palestinian territory, encroaches on Palestinian land and
natural resources, hampers the free movement of the Palestinian population
and undermines the legitimate rights of the Palestinian people to
self-determination and sovereignty.
The Secretary-General urges the Government of Israel to halt and reverse
such decisions and to immediately and completely cease all settlement
456 “Netanyahu hands Smotrich full authority to expand settlements”, The Times of Israel,
18 June 2023 (https://tinyurl.com/y3a5tktx).
457 B. Smotrich, Tweet, 18 June 2023 (Vol. II, Annex 13).
144
activities in the Occupied Palestinian Territory and to fully respect its legal
obligations in that regard.”458
3.217. Israel’s response was not long in coming. On 25 June 2023, the Cabinet
approved the construction of another 5,700 new housing units for Israeli settlers in
the West Bank. This decision brought to 13,082 the number of new units authorized
by Israel in the first six months of the year, over 900 more than in all of 2020, the
year that previously saw the most new units459. According to the Israeli NGO, Peace
Now, the latest approvals:
“make it clear that the government is rushing headlong towards an
annexation coup, turning Israel into an apartheid state.”460
3.218. The situation has also been described as one of “annexation” by the
Independent International Commission of Inquiry:
“Israel treats the occupation as a permanent fixture and has – for all intents
and purposes – annexed parts of the West Bank, while seeking to hide
behind a fiction of temporariness. … The International Court of Justice
anticipated such a scenario in its 2004 advisory opinion, in which it stated
that the wall was creating a fait accompli on the ground that could well
become permanent and tantamount to de facto annexation. This has now
become the reality.”461
3.219. There is no evidence that Israel has any intention of changing course in
regard to this “reality”, whether by ceasing its unlawful settlement activity,
reversing its measures annexing Palestinian territory, or dismantling its existing
settlements and withdrawing any of the nearly half million Israeli settlers in the
West Bank, as international law requires. To the contrary, its most senior
government officials have confirmed, repeatedly, that Israel intends to maintain its
presence in and dominion over the OPT permanently, and its most recent actions
demonstrate this.
458 Statement by the Spokesperson for United Nations Secretary-General António Guterres,
“Alarmed by New Decision on Settlements, Secretary-General Urges Israeli Government to Cease
Such Activities in Occupied Palestinian Territory”, 19 June 2023 (https://tinyurl.com/3zt8tjzv).
459 “Israel advances plans for 5,700 settlement homes, breaking annual record in 6 months”,
The Times of Israel, 26 June 2023 (https://tinyurl.com/ymkd9cy4).
460 Peace Now, “Record-breaking year: more than 13,000 settlement housing units promoted
in the West Bank in 6 months”, 26 June 2023 (https://tinyurl.com/2f3unvk2).
461 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 76
(https://undocs.org/A/77/328).
145
B. DISPLACEMENT AND CONFINEMENT OF PALESTINIANS IN THE WEST BANK
3.220. As noted above, Israel’s construction of settlements in the West Bank,
including East Jerusalem, has purposefully fragmented the territory and its
indigenous Palestinian population. In 2021, the Special Rapporteur concluded that
to ensure a “land base for the settlements and the utmost freedom of movement for
the settlers, the Government of Israel has confined the 2.7 million Palestinians in
the West Bank within a fragmented archipelago of 165 disparate patches of land
(areas A and B), completely surrounded by an area under full Israeli control (area
C) and hemmed in by hundreds of roadblocks, walls, checkpoints and forbidden
zones.”462
3.221. Israeli officials have long been outspoken in expressing their concern
that demography constitutes a challenge to Israel’s ability to exercise and retain
“sovereignty” over the West Bank. In 1969, the Minister of Labour (and later
Deputy Prime Minister), Yigal Allon, declared: “Here, we create a Greater Eretz
Israel from a strategic point of view, and establish a Jewish state from a
demographic point of view.”463
3.222. Since then, Israel has unlawfully pursued efforts to change the
demography of the West Bank in its favour, mainly by expanding its settlements to
increase the number of Israeli settlers in the territory, and by encouraging or forcing
the displacement and confinement of Palestinians. According to an article written
by the current Minister responsible for Israel’s Civil Administration in the OPT,
“improving our demographic reality” requires both establishing new Israeli
settlements and largescale “emigration” by Palestinians464.
3.223. This is reflected in Israel’s practices and policies. According to the
Secretary-General, for example, Israel has been:
462 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 29 July 2021, A/HRC/47/57, para. 63
(https://undocs.org/A/HRC/47/57).
463 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 47
(https://undocs.org/A/HRC/49/87).
464 B. Smotrich, “Israel’s Decisive Plan”, Hashiloach, 7 September 2017
(https://tinyurl.com/2s3k69sn).
146
“increasing pressure on Palestinians to move out of their areas of residence
through practices and policies that contribute to the creation of a coercive
environment in areas under full Israeli control.”465
3.224. These “practices and policies” include:
“… demolitions in the context of the unlawful and discriminatory zoning
and planning regime, and the threat of demolitions (A/HRC/34/39, para. 47;
A/74/357, para. 28; A/HRC/40/42, paras. 17-20, A/68/513 para. 32), Israeli
plans to relocate entire Palestinian communities (coupled with history of
past evictions of entire communities by Israeli authorities) (A/HRC/34/39,
paras. 44–45; A/HRC/40/42, para. 17; A/72/564, paras. 36–57), exposure to
military training in and around Israeli-defined firing zones (A/HRC/34/39,
para. 52), intimidation and harassment from Israeli security forces and
government officials (ibid., para. 50), and settler violence committed with
impunity (ibid., para. 24; A/74/357, para. 38). It has also been noted that one
factor alone can be sufficient to create a coercive environment
(A/HRC/34/39, para. 42) and to trigger concerns of forcible transfer.”466
3.225. In 2016, a report of the United Nations Secretary-General described
how Israel had “creat[ed] a coercive environment that effectively drives
communities off the land they have inhabited for decades”, noting that this regime
“could amount to individual and mass forcible transfer and forced evictions,
contrary to the obligations of Israel under international humanitarian and human
rights law”467. Five years later, the High Commissioner for Human Rights reported
that “[p]olicies and acts contributing to a coercive environment, including
demolition of Palestinian property and resulting displacement, reached the highest
levels” in years – developments which “took place against a backdrop of intensified
political rhetoric of annexation.” 468
465 Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem,
and in the occupied Syrian Golan, 13 April 2017, A/HRC/34/39, para. 41
(https://undocs.org/A/HRC/34/39).
466 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
30 January 2020, A/HRC/43/67, para. 55 (emphasis added) (https://undocs.org/A/HRC/43/67).
467 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and in the Occupied Syrian Golan, 20 January 2016, A/HRC/31/43,
paras. 46 and 68 (https://undocs.org/A/HRC/31/43).
468 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
15 February 2021, A/HRC/46/65, paras. 3 and 4 (https://undocs.org/A/HRC/46/65).
147
1. Demolition of Palestinian homes
3.226. Demolitions of Palestinian homes and the threat of demolitions are a
key component of this “coercive environment”. The Secretary-General has reported
that “[d]emolitions have been identified as a key coercive factor, in particular for
Area C communities targeted for relocation, communities in closed military zones
and communities located near Israeli settlements.”469
3.227. The scale of Israel’s demolition of Palestinian property in the West
Bank is vast. UNOCHA has reported that in just the period between 2009 and the
end of 2022 the number of Palestinian-owned structures in the West Bank which
had been demolished by Israel stood at more than 7,500 and the number of
Palestinians displaced from their homes as a result exceeded 10,100470.
3.228. In addition to the Palestinians who have been directly displaced by the
destruction of their homes and other essential structures, tens of thousands more
live under a constant threat of eviction, seizure and demolition. UNOCHA has also
expressed its “[s]erious concerns … for the tens of thousands of Palestinians who
endure fear and insecurity due to outstanding demolition orders that can be executed
at any time.”471
3.229. The impacts of Israel’s home demolition policy on Palestinian
communities and individuals can be devastating in human terms. It is difficult to
choose from the many examples that could be provided, but the one at Ein Samiya
– in which 178 Palestinians, including 78 children, were forced to leave in
May 2022, as reported by the Acting Coordinator for Humanitarian Affairs in the
OPT – is illustrative:
“These families are not leaving by choice; the Israeli authorities have
repeatedly demolished homes and other structures they own and have
threatened to destroy their only school. At the same time, land available for
the grazing of livestock has decreased due to settlement expansion and both
children and adults have been subjected to settler violence …
469 Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in
the occupied Syrian Golan, 13 April 2017, A/HRC/34/39, para. 47 (footnotes omitted)
(https://undocs.org/A/HRC/34/39).
470 See UNOCHA, Data on demolition and displacement in the West Bank
(https://tinyurl.com/4w5fysk6).
471 UNOCHA, West Bank Demolitions and Displacement: An Overview, July-August 2022
(https://tinyurl.com/2ccsfcs5).
148
We are witnessing the tragic consequences of longstanding Israeli practices
and settler violence. …
Repeated demolitions, settlement expansion, loss of access to grazing land,
and settler violence continue to cause concern about the coercive
environment, which together with loss of homes and access to lands,
generate more humanitarian need.”472
3.230. Israel has created this “coercive environment” to displace the
Palestinian people by its demolitions compelling Palestinians to relocate internally
or abroad. As the Special Rapporteur found in 2017, “[d]emolitions, threats of
demolition and lack of protection from demolition all contribute to the creation of
a coercive environment, in which people might feel that they have no choice but to
leave their land and their homes”473. The Secretary-General has described how
Palestinians in the West Bank “know that within the current system there is no longterm
protection from demolition and destruction of their property, creating a
coercive environment that effectively drives communities off the land they have
inhabited for decades.”474
3.231. Israel’s long-standing practice of demolishing Palestinian homes and
other properties has been repeatedly condemned by the Security Council and the
General Assembly. In 2004, for example, the Security Council adopted resolution
1544, which expressly called on Israel “to respect its obligations under international
humanitarian law, and insist[ed], in particular, on its obligation not to undertake
demolition of homes contrary to that law.”475 In 2016, Security Council resolution
2334 condemned “all measures aimed at altering the demographic composition,
character and status of the Palestinian Territory occupied since 1967, including East
Jerusalem, including, inter alia, the construction and expansion of settlements,
transfer of Israeli settlers, confiscation of land, demolition of homes and
displacement of Palestinian civilians, in violation of international humanitarian law
and relevant resolutions”476.
472 UNOCHA, Statement by Yvonne Helle, Acting Humanitarian Coordinator for the
Occupied Palestinian Territory, 25 May 2023 (https://tinyurl.com/yky7s2cb).
473 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 13 April 2017, A/HRC/34/70, para. 10
(https://undocs.org/A/HRC/34/70).
474 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and in the Occupied Syrian Golan, 20 January 2016, A/HRC/31/43,
para. 46 (https://undocs.org/A/HRC/31/43).
475 Security Council, Resolution 1544 (2004), 19 May 2004, para. 1.
476 Security Council, Resolution 2334 (2016), 23 December 2016, preamble.
149
3.232. The General Assembly has adopted resolutions in materially identical
terms, every year, including most recently demanding
“that Israel, the occupying Power, cease all measures contrary to
international law, as well as discriminatory legislation, policies and actions
in the Occupied Palestinian Territory that violate the human rights of the
Palestinian people, including … the forced displacement of civilians,
including attempts at forced transfers of Bedouin communities, … the
destruction and confiscation of civilian property, including home
demolitions, including if carried out as collective punishment in violation
of international humanitarian law, … and that it fully respect human rights
law and comply with its legal obligations in this regard, including in
accordance with relevant United Nations resolutions”477.
3.233. In 2021, the High Commissioner for Human Rights concluded that
“[d]emolitions of private property in the Palestinian Occupied Territory … are
unlawful and amount to forced evictions.” In particular:
“Demolitions and forced evictions violate the rights to adequate housing and
to privacy, and other human rights; they are a key element of a coercive
environment that may lead to forcible transfer, which is a grave breach of
the Fourth Geneva Convention.”478
3.234. In October 2022, the Secretary-General issued a report which
concluded that:
“Systematic demolitions of Palestinian homes, based on discriminatory
laws and policies, are ongoing and result in forced evictions: a gross
violation of human rights. Forced evictions resulting from demolitions in
the Occupied Palestinian Territory are a key factor in the creation of a
coercive environment.”479
477 General Assembly, Resolution 77/247, 30 December 2022, para. 2.
478 Report of the United Nations High Commissioner for Human Rights, Israeli
settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied
Syrian Golan, 15 February 2021, A/HRC/46/65, paras. 52-53 (footnotes omitted)
(https://undocs.org/A/HRC/46/65).
479 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and the Occupied Syrian Golan, 3 October 2022, A/77/493, para. 75
(footnote omitted) (https://undocs.org/A/77/493).
150
3.235. On 1 December 2022, the Human Rights Council adopted a resolution
which:
“[c]ondemns the continuing settlement and related activities by Israel,
including the transfer of its nationals into the occupied territory, the
construction and expansion of settlements, the expropriation and de facto
annexation of land, the demolition of homes and community infrastructure,
disruptions to the livelihood of protected persons, the confiscation and
destruction of property, including humanitarian relief consignments, the
forcible transfer of Palestinian civilians or the threat thereof, including of
entire communities”480.
3.236. Israel has not only flouted the demands of these United Nations entities
to cease its demolition of Palestinian homes and other properties; it has steadily
increased the scale and rate of its destruction. In 2019, the Special Rapporteur found
that “the rate of home demolitions and seizures of Palestinian-owned structures has
increased markedly … in comparison with previous years.”481 In 2021, the Special
Committee to Investigate Israeli Practices Affecting the Human Rights of the
Palestinian People and Other Arabs of the Occupied Territories reported that
“[d]emolitions have increased” and “evictions of Palestinians and demolitions of
their homes and health facilities … spiked in 2020.”482 The High Commissioner for
Human Rights similarly reported that “[p]olicies and acts contributing to a coercive
environment, including demolition of Palestinian property and resulting
displacement, reached the highest levels since 2016 despite the coronavirus disease
(COVID-19) pandemic”483. The High Commissioner considered it significant that
“[t]hese developments took place against a backdrop of intensified political rhetoric
of annexation.”484
480 Human Rights Council, Resolution 49/29 “Israeli settlements in the Occupied Palestinian
Territory, including East Jerusalem, and in the occupied Syrian Golan”, 1 April 2022,
A/HRC/RES/49/29, para. 5 (emphasis added) (https://undocs.org/A/HRC/RES/49/29).
481 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 21 October 2019, A/74/507, para. 16 (https://undocs.org/A/74/507).
482 Report of the Special Committee to Investigate Israeli Practices Affecting the Human
Rights of the Palestinian People and Other Arabs of the Occupied Territories, 29 September 2021,
A/76/360, paras. 22 and 31 (https://undocs.org/A/76/360).
483̰ Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
15 February 2021, A/HRC/46/65, para. 3 (https://undocs.org/A/HRC/46/65).
484 Ibid., para. 4 (footnote omitted).
151
2. Violence against Palestinians
3.237. According to competent United Nations authorities, the demolition of
Palestinian homes is not the only measure directed by Israel against Palestinians in
the West Bank, intended to force them to leave or be confined in small areas
disconnected from one another. Another of these measures is the declaration of
certain areas as military zones, from which Palestinians are excluded – or forcibly
removed – for so-called “security” reasons. An example, reported in a UNOCHA
Fact Sheet in June 2022, is the case of Massafer Yatta:
“On 4 May 2022, the HCJ [Israeli High Court of Justice] ruled that there
were no legal barriers to the planned expulsion of Palestinian residents from
Masafer Yatta to make way for military training, effectively placing them
at imminent risk of forced evictions, arbitrary displacement, and forcible
transfer.
Since the 4 May 2022 court ruling, Israeli authorities have increasingly
intensified a coercive environment for Palestinians in Masafer Yatta:
– 18 May: Israeli forces issued a military seizure order for the construction
of a two-lane patrol road in the ‘Firing Zone’.
– 11 May and 1 June 2022: Dozens of Palestinians had their homes
demolished in Khirbet Al Fakhiet and Mirkez. For some of them, the 1 June
demolition was the third time to lose their homes in less than a year.
– 7 June: Israeli authorities issued demolition orders for all seven homes
and most livelihood structures in Khirbet at Tabban.
– 10 June: Israeli forces went house to house in most communities to
photograph residents’ faces and identification documents, raising fear
among residents of increased restrictions on movement.
– 16 June: a day after it was announced that a military training exercise
would take place in the area, additional demolition orders were issued for
20 structures in Khallet Athaba’.”485
3.238. Chapter 4, below, describes other Israeli measures targeting
Palestinians in the West Bank as part of Israel’s “coercive environment” forcing
them from their homes and villages, especially Israel’s systematic racial
discrimination against Palestinians in relation to residency requirements, planning
485 UNOCHA, Fact Sheet: Masafer Yata Community At Risk Of Forcible Transfer –
June 2022, 6 July 2022 (footnote omitted) (https://tinyurl.com/29tdpaju).
152
and building, freedom of movement, and subjection to widespread (and often lethal)
violence directed against them by members of the Israeli occupation forces and by
Israeli settlers with the complicity of those forces. Authoritative United Nations
bodies have concluded that, both individually and cumulatively, these aspects of
the regime which Israel has created in the West Bank place significant pressure on
Palestinians to leave, and serve its objective of shrinking the presence of
Palestinians in the territory, altering the demographic composition in its favour and
thus entrenching its “sovereign footprint”.
IV. Israel’s Construction and Control of Infrastructure and
its Exploitation of Natural Resources in the West Bank
3.239. In 2023, Israel is investing 3.5 billion shekels (nearly one billion U.S.
dollars) in physical infrastructure to support its settlements throughout the West
Bank, to help them grow and expand, and to connect them directly to each other
and to Israel486. This includes funds for the construction and maintenance of roads;
the establishment of education and healthcare facilities; the provision of fresh water
for drinking, agriculture and sanitation; and the development of
telecommunications and electrical systems487. The transportation infrastructure
alone is estimated to have cost ten billion shekels488.
3.240. Israel’s investments in infrastructure in the West Bank – and its severe
restrictions on infrastructure development by Palestinians – not only serve the
interests of the Israeli settlers. They also further Israel’s objectives in binding the
West Bank more tightly to itself, in an attempt to make its presence there more
permanent. According to the Special Rapporteur:
486 For example, Israel’s most recent state budget, passed on 24 May 2023, provides for
3.5 billion shekels to be invested in developing West Bank settlements and transportation
infrastructure, including by constructing new roads and upgrading existing ones, and by allocating
funds for projects in official settlements and unofficial “outposts” in the West Bank. See “Budget
dedicates billions for West Bank roads, settlements and illegal outposts”, The Times of Israel,
25 May 2023 (https://tinyurl.com/bdzc42e8).
487 “Over the years, the occupying Power has spent billions of dollars in building modern
infrastructure to encourage the expansion of settlements, including road, water and sewage systems,
communications and power systems, security systems and educational and healthcare
facilities.” (Report on UNCTAD assistance to the Palestinian people: Developments in the economy
of the Occupied Palestinian Territory, 20 September 2021, TD/B/EX(71)/2, para. 40
(https://undocs.org/TD/B/EX(71)/2).
488 B’Tselem, Forbidden Roads – Israel’s Discriminatory Road Regime in the West Bank,
August 2004, p. 5 (https://tinyurl.com/4wm3mvjj).
153
“The infrastructure of the territory — the sewage connections, the
communication systems and the electrical network — has been completely
integrated into the domestic system of Israel.”489
In particular:
“The West Bank water system, with its plentiful mountain aquifers, have
been owned since 1982 by Mekorot, the national water company, with the
benefits flowing primarily to Israel. The highway network, which before
1967 had been primarily a north-south system, has been reconfigured as an
east-west system to connect the settlements with each other and with Israeli
cities ….”490
3.241. These facts led the Special Rapporteur to ask:
“What country would invest so heavily over so many years to establish so
many immutable facts on the ground in an occupied territory if it did not
intend to remain permanently?”491
A. CONSTRUCTION AND CONTROL OF HIGHWAYS AND ROADS
3.242. In 2004, the Court observed that it “cannot remain indifferent to certain
fears expressed to it” including “the fear that Israel may integrate the settlements
and their means of access”492. The fear was well-founded. By its construction of a
network of highways and roads connecting its West Bank settlements to each other
and to Israel, the occupying Power has in fact fully “integrate[d] the settlements and
their means of access.”493
3.243. The UNOCHA reported in 2007 that:
“There are at least 20 major and regional roads primarily for Israeli use that
specifically link West Bank settlements to each other and to Israel. There is
no distinction in name or number between the sections of these regional
roads, whether located in Israel or in the West Bank. Israeli traffic moves
489 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 50 (https://undocs.org/A/73/447).
490 Ibid., para. 50 (footnote omitted).
491 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 23 October 2017, A/72/556, para. 47 (https://undocs.org/A/72/556).
492 Wall Opinion, p. 184, para. 121 (emphasis added).
493 Ibid.
154
easily from one side of the Green Line to the other, passing through
checkpoints with minimal delay.”494
3.244. The Special Rapporteur found that this network was largely built on
confiscated Palestinian lands for the benefit of the Israeli settlements:
“In order to provide efficient transportation between the settlements and to
Israeli urban areas, and to encourage new settlers and settlement expansion,
the Government of Israel has invested heavily in building a dense network
of highways through the West Bank and East Jerusalem, which is built on
confiscated Palestinian lands and services only the settler population.”495
3.245. Israeli road construction in the West Bank began in the early 1970s.
The establishment of new settlements in that period brought with it the construction
of access roads to link them to the existing main roads496. The highway network
was then reconfigured to connect the settlements with each other and with
Jerusalem as well as cities in Israel, especially Tel Aviv. To do so, Israel invested
primarily in building roads that run from east to west, in contrast to the pre-1967
roads that mainly ran from north to south, connecting major Palestinian cities and
towns497. In the north-south corridor, Israel built new roads to by-pass the
Palestinian cities and towns. These have come to be known as “bypass” roads, from
which Palestinians are excluded. By the late 1990s, bypass roads to circumvent
every Palestinian city in the West Bank had been completed498.
3.246. Senior Israeli government officials have not been reticent about linking
the construction of an elaborate road network in the West Bank to facilitation of
settlement expansion and the enhancement of Israel’s claim of “sovereignty” over
the territory. Some of their public statements to this effect are listed below:
(a) in 2019, the Minister of Transportation described the infrastructure plan for
expanding the road connecting Jerusalem to the Gush Etzion settlement,
494 UNOCHA, The Humanitarian Impact on Palestinians of Israeli Settlements and Other
Infrastructure in the West Bank, July 2007, p. 60 (https://tinyurl.com/3cnz996b).
495 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 29 July 2021, A/HRC/47/57, para. 55 (footnote omitted)
(https://undocs.org/A/HRC/47/57).
496 B’Tselem, Forbidden Roads – Israel’s Discriminatory Road Regime in the West Bank,
August 2004, p. 5 (https://tinyurl.com/4wm3mvjj).
497 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 50 (https://undocs.org/A/73/447).
498 Breaking the Silence, Highway to Annexation, December 2020, p. 5
(https://tinyurl.com/4txwk7p7).
155
located to the south of the City between Bethlehem and Hebron, at a cost of
about NIS 1 billion ($283 million), as “sovereignty through transportation”499;
(b) in 2020, Israel’s Defence Minister Naftali Bennett said of the road that Israel
was building to prevent Palestinian vehicles from passing inside the Ma’aleh
Adumim settlement “block”: “We’re applying sovereignty in deeds, not in
words”500;
(c) commenting on the “West Bank Road and Transportation Master Plan for
2045,” the head of the Settlements Council explained: “This plan connects the
settlements to the rest of the country and acts as de facto sovereignty”501.
3.247. The same physical roads and highways that connect Israeli settlements
separate Palestinian communities from one another. UNOCHA found as early as
2007 that:
“The road system has fragmented the West Bank into a series of Palestinian
enclaves. Each Palestinian enclave is geographically separated from the
other by some form of Israeli infrastructure including settlements, outposts,
military areas, nature reserves and the Barrier. However, the Israeli road
network is the key delineator in marking the boundaries of the enclaves. The
road network functions to provide corridors for travel from Israel and
between settlements in the West Bank, and barriers for Palestinian
movement. Palestinian communities on one side of a road can no longer
travel by vehicle across the road to a neighbouring community on the other
side because they cannot cross the Israeli road network. Instead, they are
forced into longer, more circuitous roads to go distances that once took a
few minutes.”502
499 “Israeli ministry pushing ‘sovereignty through transportation’ policy”, Jewish News
Syndicate, 4 November 2019 (emphasis added) (https://tinyurl.com/ybyy752m).
500 “Bennett orders paving of ‘sovereignty road’ allowing uninhibited E1 construction”, The
Times of Israel, 9 March 2020 (emphasis added) (https://tinyurl.com/4d6be3mm).
501 “Gov’t launches initiative to expand public transportation in West Bank”, The Jerusalem
Post, 10 November 2020 (emphasis added) (https://tinyurl.com/y3nb5cy8).
502 UNOCHA, The Humanitarian Impact on Palestinians of Israeli Settlements and Other
Infrastructure in the West Bank, July 2007, p. 70 (https://tinyurl.com/3cnz996b). More recently, the
Israeli NGO Breaking the Silence has published a report which describes how “West Bank road and
transportation development creates facts on the ground that constitute a significant entrenchment of
the de facto annexation already taking place in the West Bank and will enable massive settlement
growth in the years to come. By strengthening Israel’s hold on West Bank territory, aiding settlement
growth, and fragmenting Palestinian land, this infrastructure growth poses a significant barrier to
ending the occupation and achieving an equitable and peaceful solution to the Israeli-Palestinian
conflict.” (Breaking the Silence, Highway to Annexation – Israeli Road and Transportation
156
3.248. Israel’s transportation infrastructure has thus fulfilled the
complementary objectives of facilitating expansion of Israeli settlements and the
displacement and confinement of Palestinians in the West Bank as the principal
means of asserting and maintaining “sovereignty” over the territory.
B. EXPLOITATION OF WATER AND OTHER NATURAL RESOURCES
3.249. An occupying power is only permitted to act “as administrator and
usufructuary” of the natural resources in the territory it occupies and it “must
safeguard the capital” of those resources and “administer them in accordance with
the rules of usufruct”503. Despite these legal obligations, Israel has systematically
exploited and denuded the natural resources of the West Bank (and the rest of the
OPT) for its own purposes. As a 2019 report by the United Nations Conference on
Trade and Development explains:
“Since the start of the occupation, Palestinians in the Occupied Palestinian
Territory have progressively lost control over their land and natural
resources and, particularly, their supply of water.”504
3.250. Israel’s conduct has not been that of an occupier of the territory, but
that of a colonial power. As the Special Rapporteur concluded in 2019:
“The approach of Israel towards the natural resources of the Occupied
Palestinian Territory has been to use them as a sovereign country would use
its own assets.”505
3.251. The Independent International Commission of Inquiry reached the
same conclusion in its 2022 report, finding that “the occupation and de facto
annexation policies of Israel” in the West Bank “include … the expropriation,
looting, plundering and exploitation of land and vital natural resources”506. Israel’s
Infrastructure Development in the West Bank, December 2020, p. 15
(https://tinyurl.com/4txwk7p7)).
503 Regulations concerning the Laws and Customs of War on Land, enclosed to the fourth
Hague Convention of 1907, Article 55.
504 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: The
Unrealized Oil and Natural Gas Potential (UNCTAD/GDS/APP/2019/1), Geneva, United Nations,
2019, p. 8 (https://tinyurl.com/yxs7p4jx).
505 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 30 May 2019, A/HRC/40/73, para. 56
(https://undocs.org/A/HRC/40/73).
506 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 77
(https://undocs.org/A/77/328).
157
“sequestration of natural resources” in the occupied territory is so extensive that it
is “virtually indistinguishable from annexation”507.
3.252. The consequences for Palestinians living in the occupied territory have
been dire:
“For the almost five million Palestinians living under occupation, the
degradation and alienation of their water supply, the exploitation of their
natural resources and the defacing of their environment is symptomatic of
the lack of any meaningful control they have over their daily lives as Israel,
the occupying power, exercises its military administrative powers in a
sovereign-like fashion, with vastly discriminatory consequences.”508
In a 2019 report, UNCTAD likewise determined that:
“[s]ince the start of the occupation, Palestinians in the Occupied Palestinian
Territory have progressively lost control over their land and natural
resources and particularly their supply of water.”509
3.253. United Nations organs have repeatedly condemned Israel’s unlawful
exploitation of the natural resources in the West Bank. More than 40 years ago, in
1980, the Security Council adopted a resolution which referred to “the reported
serious depletion of natural resources” in the West Bank and stressed the
importance of “ensuring protection of those important natural resources of the
territories under occupation”510. For decades, the General Assembly has annually
adopted resolutions which “[e]xpress[ed] its concern about the exploitation by
Israel, the occupying Power, of the natural resources of the Occupied Palestinian
Territory” and “[d]emand[ed] that Israel, the occupying Power, cease the
exploitation, damage, cause of loss or depletion, or endangerment of the natural
resources in the Occupied Palestinian Territory …”511.
507 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 30 May 2019, A/HRC/40/73, para. 27
https://undocs.org/A/HRC/40/73).
508 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 30 May 2019, A/HRC/40/73, para. 27
https://undocs.org/A/HRC/40/73).
509 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: The
Unrealized Oil and Natural Gas Potential, 2019, UNCTAD/GDS/APP/2019/1, p. 8
(https://tinyurl.com/yxs7p4jx).
510 Security Council, Resolution 465 (1980), 1 March 1980, para. 8.
511 See General Assembly, Resolutions 64/185, 21 December 2009; 65/179,
20 December 2010; 66/225, 22 December 2011; 67/229, 21 December 2012; 68/235,
158
3.254. Other United Nations bodies have also called attention to Israel’s
unlawful exploitation of the natural resources in the West Bank. The United Nations
Economic and Social Council has repeatedly “call[ed] upon Israel … to end
immediately its exploitation of natural resources, including … mining resources …
in the Occupied Palestinian Territory …”512. The Human Rights Council adopted a
resolution which stated that “the conditions of harvesting and production of
products made in settlements involve, inter alia, the exploitation of the natural
resources of the Occupied Palestinian Territory”513. The Council called upon Israel
“[t]o cease the exploitation, damage, cause of loss or depletion and endangerment
of the natural resources of the Occupied Palestinian Territory …”514.
3.255. Israel’s exploitation of the natural resources of the West Bank is farreaching
and has had serious consequences for the Palestinian economy. As the
Special Rapporteur has explained:
“Area C is vital to the well-being of the Palestinian economy, as it is
endowed with minerals and stone quarrying, productive farmland, the
potential for tourism, telecommunications and new housing, and the
contiguous territory required for freedom of mobility within the West
Bank. … Despite clear prohibitions in international humanitarian law
against pillage by the Occupying Power, Israel has been exploiting the
natural resources in Area C for its own benefit, including quarries, Dead Sea
minerals and water.”515
3.256. Notwithstanding the persistent demands of the international community
to refrain from exploiting the natural resources of the West Bank, Israel has
continued to do so. Its consistent pattern of conduct led the Special Rapporteur to
conclude in a 2017 report to the General Assembly that “[o]n the probative
evidence, Israel, the occupying power, has ruled the Palestinian Territory as an
20 December 2013; 69/241, 19 December 2014; 70/225, 22 December 2015; 71/247,
21 December 2016; 72/240, 20 December 2017; 73/255, 20 December 2018; 74/243,
19 December 2019; 75/236, 21 December 2020; 76/225, 17 December 2021; 77/187,
14 December 2022.
512 See Economic and Social Council, Resolutions, 2009/34, 31 July 2009; 2010/31,
23 July 2010; 2013/8, 19 July 2013; 2016/14, 18 August 2016; 2018/20; 24 July 2018; 2021/4,
14 September 2020.
513 Human Rights Council, Resolution 40/24, Israeli settlements in the Occupied Palestinian
Territory, including East Jerusalem, and in the occupied Syrian Golan, 22 March 2019, preamble
(https://undocs.org/A/HRC/RES/40/24).
514 Ibid., para. 8 (h).
515 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 19 October 2016, A/71/554, para. 51 (footnote omitted)
(https://undocs.org/A/71/554).
159
internal colony, deeply committed to exploiting its land and resources for Israel’s
own benefit”516.
Conclusion
3.257. Israel’s own leaders have spelled out the common objective of all these
illegal measures: the application, exercise and permanent application of Israeli
“sovereignty” over East Jerusalem and the rest of the West Bank.
3.258. As the evidence presented in this Part demonstrates, Israel neither
regards itself, nor behaves, as a temporary occupant of the West Bank. On the
contrary, in words, in laws and in deeds, Israel has evinced precisely the opposite
intention and experience – one which treats the West Bank as Israel’s own
“sovereign” territory, which Israel claims it is entitled to control, to exploit and to
rule forever. Through the express extension and application of Israeli laws, Israel
has purported to govern the West Bank as though it were a part of Israel. Through
the construction of hundreds of settlements and the transfer of hundreds of
thousands of Israeli settlers, Israel has created numerous facts on the ground, which
it promises never to remove, in support of its colonialist and annexationist
enterprise. By constructing roads, and hundreds of kilometres of walls and other
barriers, Israel has sought to bind those settlements to each other and to Israel itself,
creating a unified and entrenched network of “faits accomplis” throughout the West
Bank. By demolishing Palestinian homes and engaging in an array of other systemic
practices designed to displace the Palestinian population of the West Bank, Israel
has sought to augment its domination of the West Bank by attempting to radically
and permanently altering the character, status and demographic composition of the
territory. And by extensively seizing and exploiting the West Bank’s natural
resources, Israel has done what only a sovereign – and not an occupying Power –
could lawfully do, and what colonial powers have unlawfully done throughout
history.
516 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 23 October 2017, A/72/556, para. 58 (emphasis added)
(https://undocs.org/A/72/556).
161
Chapter 4.
ISRAEL’S VIOLATION OF THE PROHIBITION OF
RACIAL DISCRIMINATION AND APARTHEID
4.1. In its Request for an Advisory Opinion, the General Assembly has inter
alia asked the Court to determine what are the legal consequences arising from the
adoption by Israel of “discriminatory legislation and measures”.
4.2. This Chapter will first address the discriminatory legislation and measures
which Israel has enacted and imposed in order to establish a far-reaching and deeply
entrenched system of racial discrimination against Palestinians throughout the OPT,
which subjugates them to Israeli domination and denies them their fundamental
rights as human beings (Section I). It will demonstrate that this regime finds its
origins in the Nakba and in the policies adopted by Israel vis-à-vis the Palestinians
who remained in historic Palestine, and who continue to be subjected to racial
discrimination deeply affecting the enjoyment of their fundamental rights
(Section II). It will then demonstrate that this institutionalized system of racial
discrimination against the Palestinian people amounts to apartheid (Section III).
4.3. As shown in this Chapter, through a combination of racially
discriminatory laws and racially discriminatory civil and military policies and
practices that openly distinguish between Jewish Israelis and Palestinians – whether
Muslim, Christian or Samaritan – Israel has created a system of entrenched racial
discrimination which penetrates every single aspect of the daily life of Palestinians
living on either side of the Green Line.
4.4. The cumulative result of this multi-faceted and systematic discrimination
is the segregation and subjugation, on racial grounds, of the entire Palestinian
people, including those who have been forced into refugee status and are prohibited,
on racial grounds, from returning to their native land. It reflects Israel’s publiclyexpressed
commitment to establish and maintain a Jewish State between the
Mediterranean Sea and the Jordan River where the aspiration of only Jewish Israelis
is given expression. This is expressly affirmed by Israeli law, including the 2018
“Nation State Law”, where “the right to national self-determination” in Israel,
defined to include “Judea and Samaria”, is made “exclusive to the Jewish people”517
517 Basic Law: Israel – The Nation State of the Jewish People, 5778-2018, Article 1 (c)
(Vol. II, Annex 9).
162
thus relegating the Palestinian people to inferior status in their ancestral land. The
primary objective has been and remains appropriation and control of the land for
the sole benefit of Israeli Jews.
4.5. Israel’s racial discrimination against the Palestinian people is no less
pervasive in its reach, and no less pernicious in its aims and consequences, than the
institutionalized racial discrimination and segregation which existed in South
Africa during the last century. As was the case in South Africa, the regime which
Israel has instituted against Palestinians is premised upon a stark racial hierarchy,
with Jewish Israelis at the top and Palestinians at the bottom. That hierarchy is
expressly enshrined in Israel’s laws, including its quasi-constitutional “Basic
Laws”, and is reflected in the words and deeds of its leaders, occupation forces and
its settlers over many decades.
4.6. The perpetuation of this state of affairs is an affront to the international
rule of law and to human dignity, and it violates peremptory norms of international
law, as well as long-established human rights and humanitarian norms.
I. Racial Discrimination against the Palestinian People in the Occupied
Palestinian Territory and Denial of their Fundamental Rights
4.7. Ever since its military forces occupied the West Bank, including East
Jerusalem, and the Gaza Strip in 1967, Israel has imposed a far-reaching and deeply
entrenched system of racial discrimination against the Palestinian people
throughout the OPT. This regime distinguishes – deliberately, comprehensively and
systematically – along ethnic and religious lines between the Palestinian population
and the hundreds of thousands of Jewish Israeli settlers that have been transferred
to the OPT in violation of international humanitarian law, including Article 49,
paragraph 6, of the Fourth Geneva Convention. It also severely deprives, contrary
to international law, Palestinians of their fundamental rights by reason of their
identity.
4.8. The intent and direct effect of the discriminatory policies is clear: it
creates a fertile environment for the transfer of Jewish Israeli settlers and the
building and expansion of settlements. Concurrently, it creates an inviable
environment for Palestinians, forcing their uprooting and confinement, enabling
and entrenching annexation.
4.9. The overall discriminatory nature of the system applied by Israel to the
OPT has been documented and condemned by numerous United Nations bodies.
In 2013, the Independent International Commission of Inquiry found:
163
“The legal regime of segregation operating in the Occupied Palestinian
Territory has enabled the establishment and the consolidation of the
settlements through the creation of a privileged legal space for settlements
and settlers. It results in daily violations of a multitude of the human rights
of the Palestinians in the Occupied Palestinian Territory, including,
incontrovertibly, violating their rights to non-discrimination, equality
before the law and equal protection of the law.”518
4.10. In 2020, the CERD Committee’s Concluding Observations on Israel
underlined:
“As regards the specific situation in the Occupied Palestinian Territory, the
Committee remains concerned … at the consequences of policies and
practices that amount to segregation, such as the existence in the Occupied
Palestinian Territory of two entirely separate legal systems and sets of
institutions for Jewish communities in illegal settlements on the one hand
and Palestinian populations living in Palestinian towns and villages on the
other hand. The Committee is appalled at the hermetic character of the
separation of the 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,
lands and water resources. Such separation is materialized by the
implementation of a complex combination of movement restrictions
consisting of the Wall, the settlements, roadblocks, military checkpoints, the
obligation to use separate roads and a permit regime that impacts the
Palestinian population negatively.”519
4.11. In an August 2022 Report, the United Nations Special Rapporteur on
human rights in the OPT addressed the racially discriminatory character of Israeli
practices in the West Bank, including East Jerusalem:
“At the heart of the settler colonial project of Israel is a comprehensive dual
legal and political system that provides comprehensive rights and living
conditions for the Jewish Israeli settlers in the West Bank, including East
Jerusalem, while imposing upon the Palestinians military rule and control
without any of the basic protections of international humanitarian and
518 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, para. 49 (https://undocs.org/A/HRC/22/63).
519 Committee on the Elimination of Racial Discrimination, Concluding observations on the
combined seventeenth to nineteenth reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19,
para. 22 (https://undocs.org/CERD/C/ISR/CO/17-19).
164
human rights law … Israel assigns, or withholds, these rights and
conditions on the basis of ethnic and national identity. Politically and
legally, Jewish Israeli settlers enjoy the same fulsome citizenship rights and
protections as Israeli Jews living inside the country’s borders of 1949. The
475,000 Israeli settlers in the West Bank, all of whom live in Jewish-only
settlements, have the full panoply of laws and benefits of the citizenship of
Israel extended to them personally and extraterritorially. … In sharp
contrast, the 2.7 million Palestinians living in the West Bank enjoy none of
the rights, protections and privileges possessed by the Israeli Jewish settlers
living among them. … Israel has imposed a military legal system in the West
Bank that applies to Palestinians but not the Jewish settlers.”520
4.12. The Special Rapporteur concluded that:
“an institutionalized regime of systematic racial oppression and
discrimination has been established. Israeli Jews and Palestinian Arabs in
East Jerusalem and the West Bank live their lives under a single regime that
differentiates its distribution of rights and benefits on the basis of national
and ethnic identity, and that ensures the supremacy of one group over, and
to the detriment of, the other.
.......................................................................................................................
[T]he imposition of this system of institutionalized discrimination with the
intent of permanent domination has been built upon the regular practice of
inhumane and inhuman acts. Arbitrary and extrajudicial killings. Torture.
The violent deaths of children. The denial of fundamental human rights. A
fundamentally flawed military court system and the lack of criminal due
process. Arbitrary detention. Collective punishment. The repetition of these
acts over long periods of time, and their endorsement by the Knesset and
the Israeli judicial system, indicate that they are not the result of random and
isolated acts but integral to the system of rule by Israel.”521
4.13. The General Assembly has repeatedly demanded that Israel cease its
discrimination against the Palestinian people. Most recently, on 30 December 2022,
it adopted resolution 77/247 which:
520 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, paras. 38-41 (emphasis added and
footnote omitted) (https://undocs.org/A/HRC/49/87).
521 Ibid., paras. 53 and 55 (emphasis added).
165
“[d]emand[ed] that Israel, the occupying Power, cease all measures
contrary to international law, as well as discriminatory legislation, policies
and actions in the Occupied Palestinian Territory that violate the human
rights of the Palestinian people, including the killing and injury of civilians,
the arbitrary detention and imprisonment of civilians, the forced
displacement of civilians, including attempts at forced transfers of Bedouin
communities, the transfer of its own population into the Occupied
Palestinian Territory, including East Jerusalem, the destruction and
confiscation of civilian property, including home demolitions, including if
carried out as collective punishment in violation of international
humanitarian law, and any obstruction of humanitarian assistance, and that
it fully respect human rights law and comply with its legal obligations in
this regard, including in accordance with relevant United Nations
resolutions.”522
4.14. Israel has refused to comply with these demands, as it has all prior
demands, and stubbornly maintains its racially discriminatory policies and
practices. In March 2023, the United Nations High Commissioner for Human
Rights published a report which “document[ed] patterns of systematic
discrimination in law, policy and practice, encompassing almost every sphere of
life” of Palestinians in the OPT523.
4.15. Israel’s grave violations of the fundamental rights of the Palestinian
people, including those discussed below, are “a longstanding structural component
of the prolonged disfranchisement of the Palestinians under occupation.”524 That is,
they are not incidental by-products of the occupation; they are core elements of it,
which Israel carries out for the purpose of maintaining its dominion over the OPT,
forcing Palestinians to leave or accept its control, including through persecution of
the Palestinians who live there. Systematic racial discrimination is thus an essential
component of the Israeli occupation, and an integral part of the foundation upon
which it rests.
4.16. Among the most notorious features of Israel’s systematic racial
discrimination against the Palestinian people – in violation of the rules of
522 General Assembly, Resolution 77/247, 30 December 2022, para. 2
(https://undocs.org/A/RES/77/247).
523 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
15 March 2023, A/HRC/52/76, para. 2 (emphasis added) (https://undocs.org/A/HRC/52/76).
524 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 21 September 2022, A/77/356, para. 8
(https://undocs.org/A/77/356).
166
international law prohibiting such discrimination – are the following policies and
practices, which are discussed in separate subsections below, and which include
persecution of Palestinians, i.e., the denial of their fundamental rights because of
their identity:
– Israel’s discriminatory dual legal system, including Israel’s violation of the
principle of equal treatment before tribunals and its discriminatory treatment
of Palestinian children (A);
– Israel’s arbitrary arrest and detention of Palestinians, including children (B);
– Israel’s torture and other cruel, degrading and inhuman treatment of
Palestinian detainees (C);
– Israel’s discriminatory use of lethal force against Palestinian civilians (D);
– Israel’s discrimination against Palestinians in respect of freedom of
movement, including its discrimination in respect of freedom to leave and
return (E);
– Israel’s discrimination against Palestinians in respect of the right to marriage
and choice of spouse (F);
– Israel’s discrimination against Palestinians in respect of the freedom of
religion (G);
– Israel’s discriminatory land distribution and planning regime in the OPT (H);
– Israel’s discrimination against Palestinians in respect of the right to natural
resources, in particular fresh water (I);
– Israel’s discrimination against Palestinians in respect of social and economic
rights (J); and
– Israel’s infliction of collective punishment on the Palestinian people (K).
A. ISRAEL’S DISCRIMINATORY DUAL LEGAL SYSTEM
4.17. Israel applies different systems of law to Palestinians and Israeli settlers
in the West Bank. This differential application of laws and legal systems is based
solely on ethnicity and therefore constitutes blatant racial discrimination. As the
United Nations High Commissioner for Human Rights explained in 2017:
167
“Israel applies a substantial part of its domestic laws to Israeli settlers living
in the occupied territories, while Palestinians living in the West Bank are
subject to Israeli military rule. The extraterritorial application of Israeli
domestic law to settlers creates two different legal systems in the same
territory, on the sole basis of nationality or origin. Such differentiated
application is discriminatory and violates the principle of equality before
the law, which is central to the right to a fair trial.”525
4.18. In 2020 the High Commissioner for Human Rights reiterated that:
“[t]he application of two different legal systems in the same territory, on the
sole basis of nationality or origin, is inherently discriminatory.”526
4.19. The Independent Commission of Inquiry similarly described in its
September 2022 report how Israel had established a “dual legal system” which
“provides greater enjoyment of human rights for Israelis than for Palestinians and
is therefore discriminatory”. The Commission added that “[t]here are stark
differences between the two legal systems, in particular with regard to criminal law,
with significant implications for the rights of Palestinians.”527
4.20. As set out in Article 5 (a) of CERD, the prohibition of racial
discrimination encompasses the right to equal treatment before tribunals and all
other organs administering justice. It guarantees the right for “everyone who seeks
justice before a competent organ not to be discriminated against because of racist
motivations.”528 The CERD Committee has stressed the importance of an impartial
justice system529. Notably, a legal system free from discrimination is central for a
number of other related fundamental human rights, i.e., equality before the law, and
525 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
13 April 2017, A/HRC/34/39, para. 9 (emphasis added) (footnotes omitted)
(https://undocs.org/A/HRC/34/39).
526 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
30 January 2020, A/HRC/43/67, para. 29 (emphasis added) (https://undocs.org/A/HRC/43/67).
527 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 47
(https://undocs.org/A/77/328).
528 N. Lerner, The UN Convention on the Elimination of all Forms of Racial Discrimination,
Reprint revised edition, Leiden Boston, Brill Nijhoff, 2014, p. 59.
529 United Nations, Committee on the Elimination of Racial Discrimination, General
recommendation No. 31 on the prevention of racial discrimination in the administration and
functioning of the criminal justice system, Sixty-fifth session (2005), p. 1
(https://tinyurl.com/mr2dfwme).
168
the right to an independent and impartial trial530. Racial discrimination in the justice
system enables all other forms of racial discrimination to proliferate unchecked.
1. The Discriminatory Israeli Military Court System
4.21. Israel arrests, interrogates, prosecutes, sentences, and detains
Palestinians, including children, in the OPT, often without charge or trial. They are
then dealt with by a special military court regime applied to the Palestinian people
alone in the OPT. The Special Rapporteur, in June 2023, noted that “Israel’s allencompassing
criminalization shows that the military legislation, rather than
safeguarding security, renders every single Palestinian potentially subject to
imprisonment for ordinary acts of life”531. In contrast, Jewish Israeli settlers living
in the OPT are not subjected to this military court system; instead, they are
subjected to Israel’s civilian courts and criminal justice system, the same system as
Israelis living in Israel532.
4.22. Accordingly, while Jewish Israeli settlers living in the OPT who are
suspected of committing crimes are prosecuted, tried and sentenced in civil courts
in Israel applying Israeli law, Palestinians living in the OPT are prosecuted, tried
and sentenced in military courts applying military law533. Jewish Israeli settlers and
Palestinians living in the OPT are thus treated differently based purely on their
respective ethnicities534. As observed by the Special Rapporteur:
“In a structure of institutionalized discrimination, military courts enforce
military laws against Palestinians while Israeli courts apply domestic civil
law to Israelis, including settlers, who thus become vectors of annexation.
530 See, e.g., Article 2 CRC, Article 5 CRPD, Article 7 CMW, Article 2 ICESCR, and
Articles 14, 26 ICCPR.
531 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 9 June 2023, A/HRC/53/59 (Advance Unedited Version), para. 36
(footnote omitted) (https://tinyurl.com/ynuxb5kv).
532 Association for Civil Rights in Israel (“ACRI”), One Rule, Two Legal Systems: Israel’s
Regime of Laws in the West Bank, October 2014, pp. 19-20 (https://tinyurl.com/masa37p3). See also
Chapter 3, paras. 3.164-3.168.
533 As ACRI puts it: “criminal law is an area in which the discrepancies between the two legal
systems in the West Bank are highly apparent, and their implications on basic rights, and the right
to liberty in particular, are the most significant. The national identity of the suspect or defendant
determines which law will apply to them and who will have legal authority over them. In every stage
of the procedure – starting with the initial arrest, through the indictment and ending with the sentence
– Palestinians are discriminated against compared to Israelis. This holds true for both adults and
minors.” See ibid., p. 75.
534 See O. Ben-Naftali, A. M. Gross, and K. Michaeli, “Illegal Occupation: Framing the
Occupied Palestinian Territory”, Berkeley Journal of International Law, Vol. 23, 2005, No. 3,
p. 584.
169
The Israeli military law enforcement system, based on this inherent racial
dualism, constitutes the pillar of Israel’s settler-colonial apartheid regime,
targeting Palestinian people only, depriving them of fundamental rights,
including equality before the law.”535
4.23. This rigid, ethnically-based dichotomy establishes a regime of racial
discrimination in the OPT which severely prejudices the rights of the thousands of
Palestinians who are arrested and incarcerated by Israel each year. This was
underlined in a 2022 United Nations report:
“[T]he military courts incarcerate thousands of Palestinians on security
charges through a judicial system that offers few of the international
protections regarding due process or the prevention of arbitrary arrest and
detention.”536
4.24. The discriminatory treatment of Palestinians is enshrined in Israeli
legislation. Jewish Israeli settlers – but not Palestinians – have been expressly
exempted from the jurisdiction of the military courts of the West Bank by the
Extension of the Emergency Regulations Law (“Judea and Samaria and Gaza –
Adjudication of Offenses and Legal Aid”) of 1977537. The Israeli Knesset has most
recently, on 25 January 2023, extended this law538. This discriminatory policy has
been approved by Israel’s High Court of Justice539.
4.25. Even Jews from abroad present in the West Bank who are not Israeli
citizens, but who are entitled to immigrate to Israel in accordance with the
1950 Israeli “Law of Return”, are exempted from trial before Israeli military
courts540. The discriminatory, solely race-based nature of this differentiation is
further exacerbated by the fact that Palestinians carrying Israeli identification
535 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 9 June 2023, A/HRC/53/59 (Advance Unedited Version), para. 31
(footnote omitted) (https://tinyurl.com/ynuxb5kv).
536 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 50 (a) (footnote omitted)
(https://undocs.org/A/HRC/49/87).
537 Replacing an earlier law to the same effect of 1967.
538 The Knesset, “Knesset extends Judea and Samaria emergency regulations by five years”,
25 January 2023 (https://tinyurl.com/bddj6hau).
539 David v. State of Israel, HCJ 163/82 37 PD 622 (1983).
540 Emergency Regulations (Judea and Samaria – Adjudication of Offenses and Legal
Assistance), 5727-1967, Regulation 6B, Collection of Regulations 5727, p. 2741; Book of Laws
5728, p. 20; 5772, p. 476. See also ACRI, One Rule, Two Legal Systems: Israel’s Regime of Laws
in the West Bank, October 2014, p. 16 (https://tinyurl.com/masa37p3).
170
documents (notably those from East Jerusalem) who are accused by Israel of
committing offenses in the OPT are nevertheless tried by Israeli military courts.
Attempts by such persons to be tried before Israeli civil courts have failed541.
2. The Discriminatory Israeli Military Court System Is Not Permitted
Under International Humanitarian Law
4.26. Israel cannot rely on international humanitarian law to justify the
continued operation of its military court system in the OPT. First, the situation in
the OPT, after more than 56 years of occupation, renders unlawful the continued
existence of military courts. As explained in Chapter 2 above, as a matter of law,
occupation “is considered as being a temporary state of affairs”542. Israel’s
prolonged occupation of the OPT, which has lasted for well over half a century,
cannot conceivably be characterised as “temporary”. Accordingly, any attempt to
justify the continued existence and operation of a military court system in the OPT
by Israel, as the occupying power, is manifestly untenable.
4.27. Second, international humanitarian law could never justify the
discriminatory treatment of Palestinians before military courts in comparison to
Jewish Israelis accused of committing the same crime in the same occupied
territory543. International humanitarian law does not permit the discriminatory
treatment of the indigenous population in the occupied territory vis-à-vis the
occupying power’s own citizens unlawfully transferred to and living in the same
occupied territory. Accordingly, distinctions in the judicial system based on race,
as defined in Article 1 of CERD, violate the obligation to prevent unequal treatment
on the basis of race or ethnicity – an obligation that cannot be overridden on the
basis of lex specialis under international humanitarian law.
541 Supreme Court of Israel, Zrari v. Israeli Police, HCJ 6743/97, unpublished 1997 (reported
by S. Weill, “The Judicial Arm of the Occupation: The Israeli Military Courts in the Occupied
Territories”, International Review of the Red Cross, Vol. 89, 2007, No. 866, pp. 395-419); The
Israeli Police v. Nabulsi, 7SJMC (1990) pp. 189 ff. (398).
542 V. Koutroulis, “The application of international humanitarian law and international human
rights law in situations of prolonged occupation: only a matter of time?”, International Review of
the Red Cross, Vol. 94, 2012, No. 885, p. 166 (footnote omitted).
543 For the differences in the due process rights which are afforded to Palestinians facing
prosecution in the military courts compared with Israelis facing prosecution for the same offences
in the same territory see ACRI, One Rule, Two Legal Systems: Israel’s Regime of Laws in the West
Bank, October 2014, pp. 53-60 (https://tinyurl.com/masa37p3).
171
3. In Any Case, the Preconditions of Article 66 of
the Fourth Geneva Convention Are Not Met
4.28. Article 66 of the Fourth Geneva Convention provides that “the
Occupying Power may hand over the accused to its properly constituted, nonpolitical
military courts”544. According to the ICRC’s authoritative commentary on
Article 66, “[t]his clause forbids certain practices resorted to during the Second
World War when the judicial machinery was sometimes used as an instrument of
political or racial persecution”545. This means that military tribunals “must respect
the same requirements of independence and impartiality as civilian tribunals.”546
Israel’s military court system established in the OPT however fails to comply with
those requirements of the Fourth Geneva Convention and is an integral part of the
military regime designed to persecute Palestinians so as to subjugate the people and
annex their land.
4.29. The clearest indicator of the Israeli military courts’ bias against
Palestinians is their conviction rate. The conviction rate for Palestinians – which is
almost 100 % – is only possible by the combination of two factors. The first one is
the elimination of virtually all of the safeguards that guarantee a fair trial. As
observed in an August 2022 United Nations report:
“Palestinians arrested for security offences can be detained without charge
for a much longer period of time than Israeli settlers. The military legal
system is presided over by Israeli military judges and trials are conducted
in Hebrew (which many Palestinian detainees do not speak). The system
offers few of the procedural and substantive protections of a purposive
criminal legal system, while the prisoners’ lawyers are significantly
restricted in their access to evidence and the conviction rate is over 99 per
cent.”547
4.30. The second is criminalizing lawful actions by Palestinians. Indeed, when
dealing with Palestinians, the Israeli military court system has proven to be an
544 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of
12 August 1949, Article 66 (emphasis added).
545 J. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Geneva, ICRC, 1958, p. 340.
546 J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. I
(Rules), International Committee of the Red Cross, Cambridge University Press, 2005, p. 356
(footnote omitted).
547 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 41 (footnote omitted)
(https://undocs.org/A/HRC/49/87).
172
instrument of sustaining the occupation rather than achieving justice. It is used as a
legal façade to quash any form of opposition to the occupation. Palestinian
detainees are generally considered “security prisoners” and are held in the security
sections of prisons or detention centres in Israel.
4.31. Amnesty International has described how “more than 1,800 Israeli
military orders continue to control and restrict all aspects of the lives of Palestinians
in the West Bank: their livelihoods, status, movement, political activism, detention
and prosecution, and access to natural resources.” Israeli military legislation in the
West Bank “is enforced by the military justice system. Since 1967, the Israeli
authorities have arrested over 800,000 Palestinian men, women and children in the
West Bank, including East Jerusalem, and Gaza Strip, bringing many of them
before military courts that systematically fail to meet international standards of fair
trial, and where the vast majority of cases end in conviction.”548
B. ARBITRARY ARREST AND DETENTION OF PALESTINIANS, INCLUDING CHILDREN
4.32. Under its dual system of “justice” – one for Jewish Israelis and another
for Palestinians – Israel violates the rules of international law relating to arbitrary
arrest and detention.549 This is the conclusion consistently reached by the different
United Nations bodies that have investigated these practices. The Independent
International Commission of Inquiry found in 2013:
“Palestinians are routinely subject to arbitrary arrest and detention,
including administrative detention, mass arrests and incarceration. It is
estimated that more than 700,000 Palestinians, including children, have
been held in Israeli military detention since the beginning of the occupation,
many in prisons located within Israel. In 2012, approximately 4,100
Palestinians were in Israeli military detention, of whom 143 were aged
between 16 and 18 years, and 21 were below 16 years old. It is well
documented that the military court system does not ensure Palestinians basic
fair trial guarantees, including minimum standards of independence, clear
evidentiary or procedural rules, the presumption of innocence or the duty to
hear witnesses or examine all material evidence.”550
548 Amnesty International, Israel’s Apartheid against Palestinians: A Cruel System of
Domination and a Crime Against Humanity, February 2022, pp. 17-18
(https://tinyurl.com/mt7a7c24).
549 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of
12 August 1949, articles 5, 71-73; ICPR, Articles 9 and 10; CRC, Article 37.
550 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
173
4.33. Israel’s conduct was no less arbitrary and discriminatory in 2023, when
the United Nations Special Rapporteur noted:
“Under Israeli occupation, generations of Palestinians have endured
widespread and systematic arbitrary deprivation of liberty, often for the
simplest acts of life. Since 1967, over 800,000 Palestinians, including
children, have been detained based on an array of authoritarian rules
enacted, enforced and adjudicated by the Israeli military. Palestinians are
often presumed guilty without evidence, arrested without warrants, and
detained without charge or trial. Physical and psychological abuse are
distressingly common … most criminal convictions of Palestinians have
been the result of a litany of violations of international law, including due
process violations, that taint the legitimacy of the ammonisation of justice
by the occupying power. Many such convictions concern the legitimate
expressions of civil and political rights, and the right to resist an illegal
foreign occupier.”551
4.34. Likewise, the Human Rights Committee stated in its concluding
observations:
“The Committee is concerned about the widespread practice of arbitrary
arrest and detention, including in facilities located in Israel, of Palestinians,
including journalists, human rights defenders and children, in violation of
international humanitarian law and the Covenant.
.......................................................................................................................
The Committee is concerned that Counter Terrorism Law 5776-2016
contains vague and overbroad definitions of ‘terrorist organization’ and
‘terrorist act’ and may be used to oppress and criminalize legitimate political
or humanitarian acts, as illustrated by the designation, in October 2021, of
six Palestinian civil society organizations as terrorist organizations based on
secret information. It is further concerned about the use of secret evidence
in counter-terrorism proceedings, which is inaccessible to defendants and
their lawyers, thereby violating their right to a fair trial.”552
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, para. 47 (footnotes omitted) (https://undocs.org/A/HRC/22/63).
551 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 9 June 2023, A/HRC/53/59 (Advance Unedited Version), para. 94
(footnote omitted) (https://tinyurl.com/ynuxb5kv).
552 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 34 and para. 18 (https://undocs.org/CCPR/C/ISR/CO/5).
174
4.35. Israel also resorts to a particularly egregious form of arbitrary detention
through the extensive use of “administrative detention”, whereby the occupying
forces detain Palestinians for periods of up to six months based on secret
information without being charged or given a trial. This six-month period can be
renewed indefinitely553. In March 2023, the United Nations High Commissioner for
Human Rights described Israel’s administrative detention of Palestinians as a
practice “in which people are arbitrarily detained for often lengthy periods without
charge or trial”554. This has led the United Nations Special Rapporteur to conclude
that:
“the violations associated with Israeli forces’ widespread use of
administrative detention may amount to a grave breach of the Fourth
Geneva Convention and the war crimes of unlawful conferment of a
protected person and wilful deprivation of their right to a fair trial.”555
4.36. Similarly, the Human Rights Committee expressed concern about:
“the continuing practice of administrative detention of Palestinians,
including children, without charge or trial and without the guarantee of
fundamental legal safeguards”
and:
“the use of secret evidence in administrative detention proceedings and
routine approvals and renewals by military courts of administrative
detention orders, even in cases involving detainees with serious health
issues”556.
4.37. The discriminatory nature of Israel’s administrative detention system, as
applied against Palestinians, led the CERD Committee in its 2012 Concluding
Observations to urge Israel “to end its current practice of administrative detention,
553 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 41
(https://undocs.org/A/HRC/49/87).
554 High Commissioner for Human Rights, “Statement by High Commissioner on report on
the Occupied Palestinian Territory”, 3 March 2023 (https://tinyurl.com/yssvhhx3).
555 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 9 June 2023, A/HRC/53/59 (Advance Unedited Version), para. 43
(footnote omitted) (https://tinyurl.com/ynuxb5kv).
556 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 34 (https://undocs.org/CCPR/C/ISR/CO/5).
175
which is discriminatory and constitutes arbitrary detention under international
law”557.
4.38. The General Assembly also expressed grave concern regarding “the
extensive use of administrative detention of excessive duration without charge and
denial of due process”558. The Human Rights Council expressed similar concern “at
the conditions of the Palestinian prisoners and detainees, including minors, in Israeli
jails and detention centres, and at the continued use of administrative detention”559.
4.39. United Nations experts have reported that Israel currently holds
approximately 4,900 Palestinians in its prisons, including 1,016 administrative
detainees who are held for an indefinite period without trial or charge, based on
secret information. The number of administrative detainees in Israeli detention
facilities is at its highest since 2008, despite repeated condemnation from
international human rights bodies and recommendations for Israel to immediately
end the practice. The United Nations experts therefore concluded: “The systematic
practice of administrative detention, is tantamount to a war crime of wilfully
depriving protected persons of the rights of fair and regular trial.”560
4.40. Among other hardships, Palestinian prisoners are imprisoned in Israel –
in blatant disregard of Article 76 of the Fourth Geneva Convention – which impacts
their rights and their families and lawyers, who require permits from the Israeli
occupation authorities to enter Israel to visit their relatives or clients. Israel simply
refuses to comply with its international obligation as an occupying power to
maintain Palestinian detainees within the occupied territory, and regularly transfers
Palestinian detainees to jails in Israel561.
557 Committee on the Elimination of Racial Discrimination, Consideration of reports submitted
by States parties under article 9 of the Convention. Concluding Observations (Israel),
CERD/C/ISR/CO/14-16, 3 April 2012, para. 27 (emphasis added)
(https://undocs.org/CERD/C/ISR/CO/14-16).
558 General Assembly, Resolution 77/247, 30 December 2022, preamble
(https://undocs.org/A/RES/77/247).
559 Human Rights Committee, Resolution 52/3, “Human rights situation in the Occupied
Palestinian Territory, including East Jerusalem, and the obligation to ensure accountability and
justice”, 13 April 2023, A/HRC/RES/52/3, para. 23 (https://undocs.org/A/HRC/RES/52/3).
560 “Israel: UN experts demand accountability for death of Khader Adnan and mass arbitrary
detention of Palestinians”, United Nations Press release, 3 May 2023
(https://tinyurl.com/4skwhz4s).
561 See M. Sfard, “Devil’s Island: The Transfer of Palestinian Detainees into Prisons within
Israel”, in A. Baker and A. Matar (eds.), Threat: Palestinian Prisoners in Israel, London, Pluto
Press, 2011.
176
4.41. Even Palestinian children are subjected to military courts established in
the OPT, and suffer from arbitrary arrest, including administrative detention. In
contrast, Jewish Israeli minors living in the OPT as settlers are tried before Israeli
civilian courts. This differential treatment is inherently discriminatory. In practice,
the discriminatory effects are compounded by the different definitions of who
constitutes a minor; differences in the protections that apply to minors in respect of
procedures for arrest, detention and interrogation; and differences in the sentencing
of minors.
4.42. The Israeli military authorities in the OPT have promulgated a military
order which limits the definition of “children” in the OPT to minors under the age
of 16, in contravention of the first article of the Convention on the Rights of the
Child562.
4.43. As a result, Palestinian children aged 16 and 17 years old are generally
treated as adults in military courts and prisons. In contrast, under the Israeli civilian
law applying to Jewish Israeli settlers in the OPT, any person under the age of 18
is prosecuted by a civil juvenile court and not treated as an adult563. This means
inter alia that the restrictions on imprisonment which apply to Israeli offenders do
not apply to young Palestinian alleged offenders between the age of 16 and 18564.
4.44. In his July 2021 report, the Special Rapporteur explained that
“[a]ccording to military orders 1711 and 1726, Palestinian children may be held in
military courts, where their detention could be extended for up to 10 days before
they are referred to other courts”565. The Special Rapporteur was therefore “alarmed
by the number of children in detention and also the conditions of their arrest” and
called on Israel “to immediately stop this practice, which is in clear contravention
of international law and should be used only as a last resort”566.
4.45. Palestinian children are also seriously discriminated against when it
comes to sentencing. Data from the Israeli police, for example, show that
approximately 60 % of Israeli minors who were guilty of an offence were
“adjudicated without a conviction”; only 20.6 % served a prison term and 20 %
562 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 29 July 2021, A/HRC/47/57, para. 23
(https://undocs.org/A/HRC/47/57).
563 Ibid.
564 Military Order 1651 (2009), Article 168 (B) and (C) (https://tinyurl.com/48bd5c59).
565 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 29 July 2021, A/HRC/47/57, para. 23
(https://undocs.org/A/HRC/47/57).
566 Ibid.
177
were sentenced to other punishments567. In contrast, the conviction rate for
Palestinian children is nearly 100 %568.
4.46. Still another troubling form of detention, as explained by the Special
Rapporteur, is:
“the deprivation of liberty [that] haunts Palestinians beyond their life. Israeli
forces often withhold the bodies of Palestinians deceased in custody or
killed for alleged ‘security reasons’. This practice, which the Israeli High
Court of Justice has condoned, applies to the bodies of adults and children
alike. By May 2023, Israeli forces reportedly withheld 125 Palestinian
bodies, including 13 deceased detainees … For decades, the bodies of
Palestinians who were not returned to their families were buried in graves
near military zones known as ‘cemeteries of numbers’ (as each body was
assigned a number).”569
4.47. The General Assembly has also repeatedly,
“[d]eplor[ed] the practice of withholding bodies of those killed, calling for
the release of the bodies that have not been returned to their relatives, in line
with international humanitarian law and human rights law, in order to ensure
dignified closure in accordance with their religious beliefs and
traditions.”570
4.48. These Israeli practices must be seen in the broader context of its colonial
agenda. Indeed as noted by United Nations experts:
567 ACRI, One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank, 2014,
p. 73 (https://tinyurl.com/masa37p3).
568 B’Tselem, No minor matter – Violation of the Rights of Palestinian Minors Arrested by
Israel on Suspicion of Stone Throwing, 2011, p. 16 (https://tinyurl.com/33nx9vaf); ACRI, One Rule,
Two Legal Systems: Israel’s Regime of Laws in the West Bank, October 2014, p. 74
(https://tinyurl.com/masa37p3).
569 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 9 June 2023, A/HRC/53/59 (Advance Unedited Version), paras. 75
and 76 (footnotes omitted) (https://tinyurl.com/ynuxb5kv).
570 General Assembly, Resolution 77/247, 30 December 2022, preamble
(https://undocs.org/A/RES/77/247); General Assembly, Resolution 77/25, 6 December 2022,
preamble (https://undocs.org/A/RES/77/25).
178
“We cannot separate Israel’s carceral policies from the colonial nature of its
occupation, intended to control and subjugate all Palestinians in the territory
Israel wants to control.”571
4.49. The Special Rapporteur further stressed in this regard that:
“[c]arcerality conceived as a large-scale system of deprivation of liberty that
forces into a condition of captivity entire populations, who are also disposed
of their lands, is an essential feature of settler-colonialism”, and that
“[t]he reality captured is of an entire occupied population framed as a
security threat, often presumed guilty, and punished with incarceration even
when trying to exercise fundamental freedoms … [t]his system presents
features of persecution.”572
4.50. These practices have continued despite the General Assembly repeatedly
demanding that “Israel, the occupying Power, cease all measures contrary to
international law, as well as discriminatory legislation, policies and actions in the
Occupied Palestinian Territory that violate the human rights of the Palestinian
people, including … the arbitrary detention and imprisonment of civilians …”573.
C. ISRAEL’S TORTURE AND OTHER CRUEL, DEGRADING AND
INHUMAN TREATMENT OF PALESTINIAN DETAINEES
4.51. Israel’s ill-treatment of Palestinian detainees begins with their arrest. The
manner in which Israeli occupation forces routinely carry out these arrests is
especially intimidating. According to the most recent report of the United Nations
Special Rapporteur, published in June 2023:
571 “Israel: UN experts demand accountability for death of Khader Adnan and mass arbitrary
detention of Palestinians”, United Nations Press release, 3 May 2023
(https://tinyurl.com/4skwhz4s).
572 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 9 June 2023, A/HRC/53/59 (Advance Unedited Version), para. 79
and 4 (footnote omitted) (https://tinyurl.com/ynuxb5kv).
573 See, e.g., General Assembly, Resolution 77/247, 30 December 2022, para. 2
(https://undocs.org/A/RES/77/247).
179
“Dozens of armed soldiers raid villages, enter homes breaking doors,
ransack, seize property and arrest individuals, including children, without a
warrant.”574
4.52. Children are frequently the targets of these arrests. The Committee on
the Rights of the Child has long expressed its concern about Israel’s treatment of
them. In 2013, for example, the Committee found that they are:
“[r]outinely arrested in the middle of the night by soldiers shouting
instructions at the family and taken hand-tied and blindfolded to unknown
destination without having the possibility to say goodbye to their parents
who rarely know where their children are taken”575.
4.53. The Independent International Fact-Finding Mission found that, after
arrest, Palestinian children are subjected to especially harsh treatment while they
are detained:
“Most children are arrested at friction points, such as villages near
settlements or on roads used by the army or settlers and that run by a
Palestinian village. From point of arrest, they face multiple violations of
their rights to liberty and security and fair trial through interrogation,
arbitrary detention and abuse, trial and sentencing. Approximately 90 per
cent of children plead guilty and are given custodial sentences.”576
4.54. Each year an average of 500 to 700 Palestinian children are brought into
the Israeli detention system.577 Israel’s treatment of them is reflected in the 2022
report of the United Nations High Commissioner for Human Rights:
“There was an increase in the number of children arrested and detained by
the Israeli security forces. Children as young as 8 years of age continued to
574 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 9 June 2023, A/HRC/53/59 (Advance Unedited Version), para. 47
(footnote omitted) (https://tinyurl.com/ynuxb5kv).
575 Committee on the Rights of the Child, Concluding Observations on the second to fourth
periodic reports of Israel, 4 July 2013, CRC/C/ISR/CO/2-4, para. 35
(https://undocs.org/CRC/C/ISR/CO/2-4).
576 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, para. 48 (https://undocs.org/A/HRC/22/63).
577 See Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 9 June 2023, A/HRC/53/59 (Advance Unedited Version), para. 65
(https://tinyurl.com/ynuxb5kv).
180
report ill-treatment and a lack of fair trial guarantees, including freedom
from self-incrimination, the right to prompt legal assistance and the due
involvement of parents or guardians in legal proceedings. Some
documented cases may amount to torture or other ill-treatment. On 1 May,
the Israeli security forces arrested and beat a 13-year old boy in the Old City
of Jerusalem. Police officers dragged him to premises above Damascus Gate
and kicked him in the face and head as he was lying on the floor with his
hands tied behind his back. They hit him with a helmet in his genitals and
burnt his chest with a cigarette. The police initially refused to call an
ambulance and did so only upon the intervention of a lawyer. The police
interrogated the boy without a lawyer or parent present on charges of
assaulting a police officer and asked him to sign papers in Hebrew, a
language that he did not understand. The Israeli security forces released him
on condition of a 5-day house arrest and 12-day movement restriction.”578
4.55. The General Assembly and the Human Rights Council have repeatedly
raised the ill-treatment of Palestinian prisoners and detainees:
“Expressing grave concern that thousands of Palestinians, including many
children and women, continue to be held in Israeli prisons or detention
centres under harsh conditions, including, inter alia, unhygienic conditions,
solitary confinement, the extensive use of administrative detention of
excessive duration without charge and denial of due process, lack of proper
medical care and widespread medical neglect, including for prisoners who
are ill, with the risk of fatal consequences, and denial of family visits, that
impair their well-being ….”579
4.56. They also mentioned in particular their grave concern “about the illtreatment
and harassment and all reports of torture of any Palestinian prisoners”580.
4.57. The prohibition on torture is a jus cogens norm of international law and
if torture is committed as part of a widespread and systematic attack against a
civilian population, it is a crime against humanity581. It is prohibited by the
578 Report of the United Nations High Commissioner for Human Rights, “Implementation of
Human Rights Council Resolution S-9/1 and S-12/1”, 28 April 2022, A/HRC/49/83, para. 49
(footnotes omitted) (https://undocs.org/A/HRC/49/83).
579 General Assembly, Resolution 69/93, 5 December 2014, preamble
(https://undocs.org/A/RES/69/93).
580 Ibid.
581 See Article 7 (1) (f) of the Statute of the International Criminal Court. See also ICTY,
Prosecutor v. Anto Furundzija, Case no. IT-95-17/1-T10, Trial Chamber, Judgment,
10 December 1998.
181
International Covenant on Civil and Political Rights582, the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the
Torture Convention”)583, the Convention on the Rights of the Child584, and the
Fourth Geneva Convention585. In egregious violation of these obligations, Israel
regularly tortures Palestinian detainees, including children.
4.58. According to the Committee on the Rights of the Child, Palestinian
children are:
“[s]ystematically subject to physical and verbal violence, humiliation,
painful restraints, hooding of the head and face in a sack, threatened with
death, physical violence, and sexual assault against themselves or members
of their family, restricted access to toilet, food and water.”586
4.59. An array of United Nations investigative commissions, United Nations
treaty monitoring bodies and NGOs have confirmed that torture is a weapon
routinely employed by Israeli interrogators against Palestinian detainees. In 2009,
a United Nations Fact Finding Mission examined the treatment of Palestinians
detained from Gaza and concluded that they were “subjected to beatings and other
physical abuse that amounts to torture”587. It found that this treatment violated the
Convention against Torture and constituted a war crime588. In 2015, a United
Nations Independent Commission of Inquiry investigated the treatment of children
in the West Bank, including East Jerusalem, and found that their accounts of being
subjected to “multiple forms of cruel, inhuman or degrading treatment involving
soldiers, interrogators, or prison guards during the various stages of arrest, transfer,
interrogation and/or detention” were “consistent with findings of UN bodies and
NGOs in recent years.”589
582 United Nations International Covenant on Civil and Political Rights, Article 7.
583 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
584 United Nations Convention on the Rights of the Child, Articles 37, 39.
585 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of
12 August 1949, Article 32.
586 Committee on Rights of the Child, Concluding Observations on the second to fourth
periodic reports of Israel, 4 July 2013, CRC/C/ISR/CO/2-4, para. 35
(https://undocs.org/CRC/C/ISR/CO/2-4).
587 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48, para. 1164
(https://undocs.org/A/HRC/12/48).
588 Ibid., paras. 1129-1138, 1164, 1174-1175.
589 Human Rights Council, Report of the detailed findings of the independent commission of
inquiry established pursuant to Human Rights Council Resolution S-21/1, A/HRC/29/CRP.4,
24 June 2015, paras. 517-518 (footnote omitted) (https://undocs.org/A/HRC/29/CRP.4).
182
4.60. The Human Rights Committee, the Committee against Torture, and the
Committee on the Rights of the Child have expressed deep concern about the
continued use of physical and psychological torture in the interrogation and
treatment of Palestinian detainees by Israeli Prison Service guards and Israeli
occupation forces. In particular, these United Nations bodies have called upon Israel
to recognize that the prohibition on torture is absolute, to abandon the use of the
necessity defence, to allow independent monitoring of interrogation facilities, to
investigate acts of torture and to punish those responsible590.
4.61. The Human Rights Committee in turn was:
“deeply concerned about reports of the widespread and systematic practice
of torture and ill-treatment by Israel Prison Service guards and the Israeli
security forces against Palestinians, including children, at the time of arrest
and in detention. It is particularly concerned about the use of physical and
psychological violence, sleep deprivation, stress positions and prolonged
solitary confinement, including against children and detainees with
intellectual or psychosocial disabilities. It also notes with concern a very
low rate of criminal investigations, prosecutions and convictions concerning
allegations of torture and ill-treatment (arts. 7, 9, 10 and 24).”591
4.62. The Committee Against Torture was:
“concerned at allegations of many instances in which Palestinian minors
were exposed to torture or ill-treatment, including to obtain confessions;
were given confessions to sign in Hebrew, a language they do not
understand; and were interrogated in the absence of a lawyer or a family
member.”592
590 Committee on Rights of the Child, Concluding Observations on the second to fourth
periodic reports of Israel, 4 July 2013, CRC/C/ISR/CO/2-4, paras. 35-36
(https://undocs.org/CRC/C/ISR/CO/2-4); Committee against Torture, Concluding Observations on
the fifth periodic report of Israel, 3 June 2016, CAT/C/ISR/CO/5, paras 14, 18, 19, 30, 31
(https://undocs.org/CAT/C/ISR/CO/5); Human Rights Committee, Concluding observations on the
fifth periodic report of Israel, 5 May 2022, CCPR/C/ISR/CO/5, paras. 28-31
(https://undocs.org/CCPR/C/ISR/CO/5).
591 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 30 (https://undocs.org/CCPR/C/ISR/CO/5).
592 Committee against Torture, Concluding observations on the fifth periodic report of Israel,
3 June 2016, CAT/C/ISR/CO/5, para. 28 (https://undocs.org/CAT/C/ISR/CO/5).
183
4.63. The Committee on the Rights of the Child:
“expresse[d] its deepest concern about the reported practice of torture and
ill-treatment of Palestinian children arrested, prosecuted and detained by the
military and the police, and about the State party’s failure to end these
practices in spite of repeated concerns expressed by treaty bodies, special
procedures mandate holders and United Nations agencies in this respect.
The Committee notes with deep concern that children living in the OPT
continue to be:
(a) Routinely arrested in the middle of the night by soldiers shouting
instructions at the family and taken hand-tied and blindfolded to unknown
destination without having the possibility to say goodbye to their parents
who rarely know where their children are taken;
(b) Systematically subject to physical and verbal violence, humiliation,
painful restraints, hooding of the head and face in a sack, threatened with
death, physical violence, and sexual assault against themselves or members
of their family, restricted access to toilet, food and water. These crimes are
perpetrated from the time of arrest, during transfer and interrogation, to
obtain a confession but also on an arbitrary basis as testified by several
Israeli soldiers as well as during pretrial detention;
(c) Held in solitary confinement, sometimes for months.”593
4.64. In 2018, after a ruling of Israel’s Supreme Court exempting security
agents from criminal investigation despite their undisputed use of coercive
“pressure techniques” against a Palestinian detainee, the United Nations Special
Rapporteur on torture expressed his utmost concern stating that:
“By exempting alleged perpetrators from criminal investigation and
prosecution, the Supreme Court has essentially provided them with a
judicially sanctioned ‘license to torture’.”594
4.65. In 2022, the Special Rapporteur on the situation of human rights in the
Palestinian territories occupied since 1967 expressed similar concerns about Israel’s
discriminatory and inhumane treatment of Palestinian detainees:
593 Committee on the Rights of the Child, Concluding observations on the second to fourth
periodic reports of Israel, 4 July 2013, CRC/C/ISR/CO/2-4, para. 35
(https://undocs.org/CRC/C/ISR/CO/2-4).
594 “UN expert alarmed at Israeli Supreme Court’s ‘license to torture’ ruling”, United Nations
Press release, 20 February 2018 (https://tinyurl.com/3x3v9exm).
184
“Although strictly prohibited under international law, torture continues to
be used in practice by Israel against Palestinians in detention. Methods of
torture include sleep deprivation, beating and slapping, humiliation,
unhygienic conditions and extended shackling in contorted positions.
Challenges to the Israeli Supreme Court against its use have been
unsuccessful. Beatings by Israeli soldiers of Palestinians during arrests are
regularly reported, with little accountability.”595
D. ISRAEL’S UNLAWFUL USE OF FORCE AGAINST PALESTINIAN CIVILIANS
4.66. The Human Rights Committee’s General Comment No. 36 on the Right
to Life contained in Article 6 of the International Covenant on Civil and Political
Rights is of special relevance to Israel’s actions in the OPT. It stresses that States
“must respect and protect the lives of individuals located in places that are under
their effective control, such as occupied territories” and warns that:
“the targeting of civilians, civilian objects and objects indispensable to the
survival of the civilian population, indiscriminate attacks, failure to apply
the principles of precaution and proportionality, and the use of human
shields would also violate article 6 of the Covenant.”596
4.67. As set out below, Israel has systematically breached its obligations under
Article 6 of the Covenant. It has done so for the purpose of maintaining its dominion
over the OPT and control over the Palestinian people. The Special Rapporteur
underscored “the growing amount of violence required to maintain the occupation”.
That violence, and the ongoing violation of Palestinians’ fundamental rights, is
“based entirely on nationality and ethnicity” and represents a state of affairs which
“should be unthinkable in the twenty-first century”597.
4.68. In the course of its occupation of the OPT, Israel has been responsible
for the killing of thousands of Palestinians, through military incursions, raids and
assaults, and extra-judicial killings. The systematic use of lethal force by Israeli
occupation forces in the OPT made 2022 the deadliest year for Palestinians in the
595 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 50 (e) (footnotes omitted)
(https://undocs.org/A/HRC/49/87).
596 Human Rights Committee, General Comment No 36 (Article 6: right to life),
CCPR/C/GC/36, 3 September 2019, paras. 63-64 (footnote omitted)
(https://undocs.org/CCPR/C/GC/36).
597 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2021, A/76/433, para. 27 (https://undocs.org/A/76/433).
185
West Bank since the United Nations started systematically documenting fatalities
in 2005598.
4.69. As a United Nations Commission of Inquiry found as early as 2001:
“[T]here is considerable evidence of indiscriminate firing at civilians in the
proximity of demonstrations and elsewhere. In addition, the IDF [Israeli
Defence Force] is subject to the principle of proportionality which requires
that injury to non-combatants or damage to civilian objects may not be
disproportionate to the military advantages derived from an operation. The
use of lethal weapons against demonstrators and the widespread destruction
of homes and property along settlement roads cannot, in the opinion of the
Commission, be seen as proportionate in the circumstances.”599
4.70. In 2022, the Human Rights Committee expressed its deep concern over:
“continuing and consistent reports of the excessive use of lethal force by the
Israeli security forces against Palestinian civilians, including children, and
the lack of accountability for these acts, resulting in a general climate of
impunity.”600
4.71. Of particular concern is Israel’s long-standing policy of extrajudicial
killing of Palestinians. The General Assembly has deplored Israel’s “extrajudicial
killing … underlining that they are a violation of international law and international
humanitarian law”601. Similarly, the Human Rights Committee repeatedly called on
Israel “to end its practice of extrajudicial executions of individuals”602. The United
Nations Special Coordinator for Middle East Peace Process condemned Israel’s
598 See “Israel: UN experts condemn record year of Israeli violence in the occupied West
Bank”, United Nations Press release, 15 December 2022 (https://tinyurl.com/ypxvacrz).
599 Report of the human rights inquiry commission established pursuant to Commission
resolution S-5/1 of 19 October 2000, “Question of the Violation of Human Rights in the Occupied
Arab Territories, Including Palestine”, E/CN.4/2001/121, 16 March 2001, para. 43
(https://undocs.org/E/CN.4/2001/121).
600 Human Rights Committee, Concluding Observations on the fifth periodic report of Israel,
CCPR/C/ISR/CO/5, 5 May 2022, para. 26 (https://undocs.org/CCPR/C/ISR/CO/5).
601 General Assembly, Resolution ES-10/12, 25 September 2003, preamble
(https://undocs.org/A/RES/ES-10/12).
602 Human Rights Committee, Concluding observations: Israel, 3 September 2010,
CCPR/C/ISR/CO/3, para. 10 (https://undocs.org/CCPR/C/ISR/CO/3).
186
extrajudicial killings and “reiterated the world body’s consistent opposition to such
assassination … no country can resort to such extrajudicial measures”603.
4.72. Yet, Israel persisted in this practice, leading the United Nations
Secretary-General to condemn Israel and remind it that “extrajudicial killings are
against international law”. The Secretary-General called on “the Government of
Israel to immediately end its practice”604.
4.73. According to the UNOCHA, in just the years since 2008 at least 6,269
Palestinians, including 1,409 children, have been killed in the context of the
occupation, while 146,618 have been injured605. This means that, on average, more
than one Palestinian has been killed, and more than 25 Palestinians have been
injured, every day for the last 15 years. Children, in particular, have been the target
of the Israeli military’s violence. In August 2022, the High Commissioner for
Human Rights expressed concern for the number of children killed by Israeli
occupation soldiers and called for accountability606.
4.74. In December 2022, the Special Rapporteur of human rights in the OPT,
the Special Rapporteur on extrajudicial, summary or arbitrary executions, and the
Special Rapporteur on Freedom of Peaceful Assembly and Association expressed
dismay that 2022 had already been the deadliest year in the West Bank since 2005,
with over 152 Palestinians killed by Israeli forces. Lamenting that “[i]mpunity
continues to prevail”, they underscored that:
“[u]se of lethal force as a first rather than a last resort by Israeli forces,
against Palestinians who do not present an imminent threat to life or of
serious injury, may amount to extrajudicial execution – a violation of the
right to life – and wilful killing prohibited under the Fourth Geneva
Convention and Rome Statute.”607
603 United Nations Office of the Special Coordinator for the Middle East Peace Process, “UN
envoy condemns Israel's extra-judicial assassinations”, 25 August 2003
(https://tinyurl.com/4ux27ve9).
604 United Nations Office of the Spokesperson for the United Nations Secretary-General,
“Secretary-General strongly condemns Israel’s assassination of Hamas leader, which resulted in
death of eight others”, 22 March 2004 (https://tinyurl.com/47ukrvmk).
605 UNOCHA, Data on Casualties (https://www.ochaopt.org/data/casualties).
606 “Bachelet alarmed by the number of Palestinian children killed in latest escalation, urges
accountability”, United Nations Press Release, 11 August 2022 (https://tinyurl.com/bddpx8n5).
607 “Israel: UN experts condemn record year of Israeli violence in the occupied West Bank”,
United Nations Press release, 15 December 2022 (https://tinyurl.com/ypxvacrz). See prior Special
Rapporteur reports showing concern about the Israeli practice of extrajudicial executions of
Palestinians: Report of the Special Rapporteur on the situation of human rights in the Palestinian
187
4.75. Aid workers and journalists have not been spared, either. As the Special
Rapporteur has described, “[h]umanitarians and journalists are regularly among the
victims of the widespread recourse by Israel to lethal force. Lack of accountability
remains pervasive.”608 Since 2001 the Committee to Protect Journalists has
documented at least 20 journalists killed by the IOF609. In May 2022, Al Jazeera
journalist Shireen Abu Akleh was shot dead by an Israeli soldier while documenting
an Israeli raid on the Jenin refugee camp. Despite “numerous investigations
concluding that the journalist was hit by Israeli soldiers’ fire”610, and repeated calls
for accountability, Israel continued ensuring full impunity for its occupation forces.
4.76. This has led the General Assembly in 2022 to once again express “grave
concern about the continuing systematic violation of the human rights of the
Palestinian people by Israel, the occupying Power, including that arising from the
excessive use of force and military operations causing death and injury to
Palestinian civilians, including children, women and non-violent, peaceful
demonstrators, as well as journalists, medical personnel and humanitarian
personnel”611.
4.77. This pattern of indiscriminately killing and injuring Palestinians has
continued in 2023. By the middle of 2023, Israel had already conducted several
deadly incursions into Palestinian towns and refugee camps, leading three United
Nations experts, including the Special Rapporteur on extrajudicial, summary or
arbitrary executions, to issue a joint statement noting that:
“[o]n the morning of 26 January, Israeli forces conducted a raid in the Jenin
Refugee Camp in the north of the occupied West Bank. They fired live
ammunition, killing at least nine Palestinians, including one elderly woman
and two children. Over 20 people were reportedly injured and four of them
remain in critical condition … The international community cannot and should
territories occupied since 1967, A/77/356, 21 September 2022, paras. 56-57
(https://undocs.org/A/77/356); Report of the Special Rapporteur on the situation of human rights in
the Palestinian territories occupied since 1967, A/HRC/49/87, 12 August 2021, para. 50
(https://undocs.org/A/HRC/49/87).
608 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 21 September 2022, A/77/356, para. 58
(https://undocs.org/A/HRC/77/356).
609 Committee to Protect Journalists, Deadly Pattern. 20 Journalists died by Israeli military
fire in 22 years. No one has been held accountable, 9 May 2023 (https://tinyurl.com/4chy349z).
610 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 21 September 2022, A/77/356, para. 58
(https://undocs.org/A/HRC/77/356).
611 General Assembly, Resolution 77/247, 30 December 2022, preamble
(https://undocs.org/A/RES/77/247).
188
not tolerate what appears to reflect Israel’s deliberate policy and practice of
using lethal force without regard for limits set by international law …”612
The United Nations experts observed that this was the highest number of
Palestinians killed in a single military incursion in the occupied West Bank since
2005. They concluded that “[n]one of this violence would occur if Israel were to
end its illegal, half-century old occupation immediately and unconditionally as
required by international law”613. Less than a month later, Israel conducted another
military incursion in Nablus, killing 11 Palestinians, including a boy and three older
men, and wounding more than one hundred with live ammunition614. In July 2023,
Israel conducted still another deadly incursion in the Jenin refugee camp, killing at
least 12 Palestinians, including five children, and injuring more than 100
Palestinians. This led United Nations experts to state that:
“The attacks forced thousands of Palestinians to flee and damaged
infrastructure, houses and apartment buildings … These attacks were the
fiercest in the West Bank since the destruction of the Jenin camp in 2002 …
Israeli air strikes and ground operations in the occupied West Bank targeting
the Jenin Refugee Camp and killing at least 12 Palestinians may prime facie
constitute a war crime.”615
4.78. Israel’s unlawful use of force against Palestinian civilians has been
particularly egregious in the Gaza Strip. Since 2005, IOF have carried out repeated
assaults on Gaza616, of which “Operation Cast Lead” (2008-2009), “Operation
Protective Edge” (2014), the assault on the Great March of Return (2018),
“Operation Guardian of the Walls” (2021) and “Operation Shield and Arrow”
(May 2023) have caused the most civilian casualties.
612 “Israel/Palestine: UN experts condemn renewed violence and Israeli killings of Palestinians
in the occupied West Bank”, United Nations Press Release, 27 January 2023
(https://tinyurl.com/562ps68h)
613 Ibid.
614 “Israel and the Occupied Palestinian Territory: UN Human Rights Chief concerned by
escalating violence”, United Nations Press Release, 23 February 2023
(https://tinyurl.com/5n7je6ds).
615 “Israeli airstrikes and ground operations in Jenin may constitute war crime: UN experts”,
United Nations Press Release, 5 July 2023 (https://tinyurl.com/2kz25f8t).
616 “Operation Summer Rains”, June 2006; “Operation Autumn Clouds”, November 2006;
“Operation Hot Winter”, February 2008; “Operation Cast Lead”, December 2008-January 2009;
“Operation Pillar of Defence”, November 2012; “Operation Protective Edge”, July-August 2014;
Great March of Return, March-May 2018; “Operation Guardian of the Walls”, May 2021;
“Operation Shield and Arrow”, May 2023.
189
4.79. In 2008/2009, over 1,400 Palestinians were killed (among them 300
children and 110 women)617. In 2014, 2,251 Palestinians were killed (among them
551 children and 299 women)618. In 2018, 183 Palestinians were killed (among
them 35 children)619. In 2021, 260 Palestinians were killed (66 of them children)620.
As of 15 May 2023, 34 Palestinians were killed (including six children and two
women)621.
4.80. In the course of these aggressions, IOF knowingly attacked civilian
areas, firing missiles and bombs from both the air and ground at residential
buildings, causing them to collapse and, in several instances, killing entire families,
including many women and children.
4.81. The first three military assaults were the subject of full investigative
reports by independent commissions of inquiry established by the Human Rights
Council. All three reports found that the Israeli military had engaged in the
indiscriminate, excessive and disproportionate use of force against Palestinian
civilians. Attacks were found to have been directed at the Palestinian population in
Gaza as a whole622.
4.82. The United Nations Fact Finding Mission on “Operation Cast Lead”623
(2008-2009) found, for example, that the Israeli armed forces had caused excessive
617 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48,
paras. 352-365 (https://undocs.org/A/HRC/12/48).
618 Human Rights Council, Report of the detailed findings of the independent commission of
inquiry established pursuant to Human Rights Council Resolution S-21/1, 24 June 2015,
A/HRC/29/CRP.4, para. 574 (https://undocs.org/A/HRC/29/CRP.4).
619 Human Rights Council, Report of the detailed findings of the independent international
Commission of inquiry on the protests in the Occupied Palestinian Territory, 18 March 2019,
A/HRC/40/CRP.2 (https://undocs.org/A/HRC/40/CRP.2).
620 Report of the United Nations High Commissioner for Human Rights, “Implementation of
Human Rights Council Resolution S-9/1 and S-12/1”, 28 April 2022, A/HRC/49/83, para. 7
(https://undocs.org/A/HRC/49/83).
621 UNOCHA, Humanitarian situation in Gaza, Flash Update #5, 15 May 2023
(https://tinyurl.com/2p9yzs7p).
622 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48, para. 1186
(https://undocs.org/A/HRC/12/48); Report of the Special Rapporteur on the situation of human
rights in the Palestinian territories occupied since 1967, A/HRC/28/78, 22 January 2015, para. 21
(https://undocs.org/A/HRC/28/78); Security Council, Letter dated 27 April 2015 from the Secretary-
General addressed to the President of the Security Council, S/2015/286, 27 April 2015
(https://undocs.org/S/2015/286).
623 Report of the United Nations Fact Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48
(https://undocs.org/A/HRC/12/48).
190
loss of civilian life624 and had failed to take precautionary measures to minimize
harm to civilians:625
“The Mission found numerous instances of deliberate attacks on civilians
and civilian objects (individuals, whole families, houses, mosques) in
violation of the fundamental international humanitarian law principle of
distinction, resulting in deaths and serious injuries. In these cases the
Mission found that the protected status of civilians was not respected and
the attacks were intentional, in clear violation of customary law reflected in
article 51 (2) and 75 of Additional Protocol I, article 27 of the Fourth
Geneva Convention and articles 6 and 7 of the [ICCPR]. In some cases the
Mission additionally concluded that the attack was also launched with the
intention of spreading terror among the civilian population. Moreover, in
several of the incidents investigated, the Israeli armed forces not only did
not use their best efforts to permit humanitarian organizations access to the
wounded and medical relief, as required by customary international law
reflected in article 10 (2) of Additional Protocol I, but they arbitrarily
withheld such access.”626
4.83. Among the victims were members of al-Samouni family. On
4 January 2009, Israeli soldiers ordered over 100 members of the extended family
into one house. A day later, the residence was hit by Israeli artillery shells and live
ammunition. Twenty-seven family members were killed, including 11 children and
six women, and 35 others were injured627. In total, 48 members of al-Samouni
family were killed on that day628.
4.84. The Report on “Operation Protective Edge” (2014)629 concluded that the
high death toll among Palestinians – 2,251 deaths – “speaks volumes”630. In
addition to those deaths, it found that 11,231 Palestinians were wounded, including
3,540 women and 3,436 children631. The Commission’s examination of numerous
624 Ibid., paras. 1919, 1923.
625 Ibid., paras. 595, 1919.
626 Report of the United Nations Fact Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48
(https://undocs.org/A/HRC/12/48), para. 1921.
627 UNOCHA, 50 stories of Palestinian life under occupation (https://tinyurl.com/4x9n8c9x).
628 “Amid dust and death, a family’s story speaks for the terror of war”, The Guardian,
January 2009 (https://tinyurl.com/2wfk7fea)
629 Human Rights Council, Report of the independent commission of inquiry established
pursuant to Human Rights Council resolution S-21/1, 24 June 2015, A/HRC/29/52
(https://undocs.org/A/HRC/29/52).
630 Ibid., para. 20.
631 Ibid.
191
incidents in the operation showed that the IOF had failed to observe the principle
of distinction in its attacks632, had failed to display “constant care” for civilians633
and had failed to take all feasible precautionary measures to avoid or at least
minimize incidental loss of civilian life and injury to civilians634. It concluded that
Israel had used force indiscriminately635 and disproportionately636, and warned that
many of its actions could constitute war crimes637.
4.85. According to UNOCHA, at least 142 Palestinian families had three or
more members killed in the destruction of residential building by Israeli airstrikes
leaving 742 dead.638 This included, in the span of two weeks, in July 2014, the
killing of 18 members of the al-Batsh family, among them six children639; 26
members of the Abu Jama family, including 19 children, and five women, three of
whom were pregnant640; 19 members of Al-Najjar family, including 11 children,
the youngest victim was an eight-months baby641; in Abu Jabr house, 19 people
were killed, including six children and six women, one of whom was pregnant642;
and 37 members of the Abu Amr, Breikeh, al-Najjar and Mu’ammar families,
among them 18 children643.
4.86. The report of the Independent Commission of Inquiry in respect of the
“Great March of Return” dealt with the mass protest held by Palestinians at the
fence built by Israel in the Gaza Strip644. 183 fatalities and over 700 injuries were
caused by IOF snipers firing at demonstrators in Gaza itself. The shooting of
Palestinian demonstrators with high velocity weaponry resulted in “killings and
long-term, life-changing injuries, including paralysis and amputations”645.
632 Ibid., paras. 51-52, 58.
633 Ibid., para. 48.
634 Ibid., paras. 41-43, 48.
635 Ibid., para. 50.
636 Ibid., paras. 40, 48 and 58.
637 Ibid., para. 40, 50-53.
638 Report of the Detailed Findings of the Independent Commission of Inquiry on the 2014
Gaza Conflict, 24 June 2015, A/HRC/29/CRP.4, para. 111 (https://undocs.org/A/HRC/29/CRP.4
https://tinyurl.com/3mbwu4hd).
639 Ibid., para. 158.
640 Ibid., para. 161.
641 Ibid., para. 126.
642 Ibid., para. 132.
643 Ibid., para. 153.
644 Report of the independent international commission of Inquiry on the protests in the
Occupied Palestinian Territory, 6 March 2019, A/HRC/40/74 (https://undocs.org/A/HRC/40/74).
645 Ibid., para. 99.
192
4.87. The Commission found that the victims, who were hundreds of meters
away from the IOF and were clearly identifiable as civilians, including paramedics
and journalists, visibly engaged in civilian activities, “were intentionally shot”646.
The Commission found that in all but one of the cases it had investigated “the use
of live ammunition by Israeli forces against demonstrators was unlawful”647
because they had killed and maimed Palestinian demonstrators who did not pose an
imminent threat in circumstances in which the use of lethal force was “neither
necessary nor proportionate”648. Victims had therefore been killed in violation of
the principle of distinction in international humanitarian law and “in violation of
their right to life”649. The Commission also found that Israel had failed to conduct
investigations into the allegations of unlawful acts by its armed forces and that a
spirit of impunity prevailed in respect of Israel’s actions650.
4.88. The Commission further noted:
“The Israeli security forces killed and maimed Palestinian demonstrators
who did not pose an imminent threat of death or serious injury to others
when they were shot, nor were they directly participating in hostilities. Less
lethal alternatives remained available and substantial defences were in
place, rendering the use of lethal force neither necessary nor proportionate,
and therefore impermissible.”651
“The commission found that responsibility for unlawful deaths and injuries
lay primarily on two fronts. First, those who employed lethal force, assisted
with or authorized it to be deployed in specific instances, in the absence of
an imminent threat to life or where the victim was not directly participating
in hostilities; this includes snipers, spotters and/or commanders on site.
Second, those who drafted and approved the rules of engagement.”652
646 Report of the detailed findings of the independent international Commission of inquiry on
the protests in the Occupied Palestinian Territory, 18 March 2019, A/HRC/40/CRP.2, para. 692
(https://undocs.org/A/HRC/40/CRP.2).
647 Ibid., para. 693.
648 Ibid., para. 694.
649 Ibid. (footnote omitted).
650 Ibid., paras. 700 and 726.
651 Report of the independent international commission of inquiry on the protests
in the Occupied Palestinian Territory, 6 March 2019, A/HRC/40/74, para. 96
(https://undocs.org/A/HRC/40/74).
652 Report of the independent international commission of inquiry on the protests in the
Occupied Palestinian Territory, 6 March 2019, A/HRC/40/74, para. 107
(https://undocs.org/A/HRC/40/74).
193
4.89. In relation to the same events, the General Assembly “[e]xpress[ed] …
its deep alarm at the loss of civilian lives and the high number of casualties among
Palestinian civilians, particularly in the Gaza Strip, including casualties among
children, caused by the Israeli forces”, “[c]ondemn[ed] all acts of violence against
civilians”; “[r]eaffirm[ed] the right to peaceful assembly and protest, and freedom
of expression and of association”; and “[d]eplore[d] the use of any excessive,
disproportionate and indiscriminate force by the Israeli forces against Palestinian
civilians in the Occupied Palestinian Territory, including East Jerusalem, and
particularly in the Gaza Strip, including the use of live ammunition against civilian
protesters, including children, as well as medical personnel and journalists, and
expresses its grave concern at the loss of innocent lives.”653
4.90. In its May 2022 Report the Human Rights Committee reported that:
“[i]t is particularly concerned about excessive force used in policing
demonstrations, including the Great March of Return between March 2018
and December 2019, during which 183 people, including children,
paramedics, journalists and persons with disabilities, were shot dead. It is
also concerned that no perpetrator has been brought to justice for excessive
force used against 260 Palestinians, including children, during the
escalation of hostilities in Gaza in May 2021”654.
4.91. The incessant assaults on Gaza have led the General Assembly as
recently as December 2022 to deplore “the continuing and negative consequences
of the conflicts in and around the Gaza Strip and the high number of casualties
among Palestinian civilians in the recent period, including among children, and any
violations of international law, and calling for full respect for international
humanitarian and human rights law and for the principles of legality, distinction,
precaution and proportionality.”655
653 General Assembly, Resolution ES-10/20, 18 June 2018, preamble and para. 2
(https://undocs.org/A/RES/ES-10/20).
654 Human Rights Committee, Concluding observations on the fifth periodic report
of Israel, 5 May 2022, CCPR/C/ISR/CO/5, para. 26 (emphasis added)
(https://undocs.org/CCPR/C/ISR/CO/5). Israel continued its attacks against civilians in Gaza during
its military assault in May 2021, including a missile strike on the home of al-Qolaq family in Gaza
City, killing 22 members of the family, UN Women, “Zainab Al-Qolaq, a Survivor of an Israeli
Airstrike on Gaza in May 2021 Tells her Story”, 26 May 2022 (https://tinyurl.com/5jn53wef).
655 General Assembly, Resolution 77/247, 30 December 2022, preamble
(https://undocs.org/A/RES/77/247).
194
E. ISRAEL’S DISCRIMINATION AGAINST PALESTINIANS BY
DENIAL OF FREEDOM OF MOVEMENT
4.92. Israel discriminates on racial grounds between Jewish Israeli settlers and
Palestinians in the OPT by denying Palestinians the right of freedom of movement.
Whether they live in the West Bank, East Jerusalem or the Gaza Strip, Palestinians
are subject to severe restrictions on their movement within the OPT and to and from
it, while Jewish Israeli settlers are not, and are, moreover, provided with a network
and other support, including military accompaniment, to facilitate their movement
throughout the OPT and to and from it. In the West Bank, these restrictions have
physically separated Palestinian communities from one another, and opened space
between them that has been filled by new or expanded Israeli settlements. By this
policy, as the Special Rapporteur found in 2021 “the Government of Israel has
confined the 2.7 million Palestinians in the West Bank within a fragmented
archipelago of 165 disparate patches of land …, hemmed in by hundreds of
roadblocks, walls, checkpoints and forbidden zones” and created a “land base for
the settlements and the utmost freedom of movement for the settlers”656.
4.93. As explained in Chapter 3, Israel has invested heavily in the construction
of highways and roads connecting settlements in the West Bank to each other, to
Jerusalem, and to Israel itself657. The new and expanded transportation
infrastructure, which Jewish Israeli settlers are free to use but Palestinians are not,
permits the settlers to commute to Israel for employment, as around 60 % of them
do so daily658. The unrestricted and efficient access to work in Israel, and the easy
movement among settlements themselves, have facilitated the creation of large and
expanding settlement “blocs”, which function as suburbs of Jerusalem and Tel
Aviv659. This tightens Israel’s connection to the OPT, expands and deepens its
presence, and serves its purpose of annexation and maintaining permanent control.
4.94. The same purpose is served by subjecting Palestinians to “a complex
system of administrative, bureaucratic and physical constraints that affects virtually
every aspect of daily life”, including burdensome restrictions on their ability to
move from place to place660. In particular, Israel imposes differing levels of
656 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 29 July 2021, A/HRC/47/57, para. 63
(https://undocs.org/A/HRC/47/57).
657 See paras. 3.242-3.248 above.
658 Breaking the Silence, Highway to Annexation, December 2020, p. 4
(https://tinyurl.com/4txwk7p7).
659 Ibid., pp. 4-12 (https://tinyurl.com/4txwk7p7).
660 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 23 October 2017, A/72/556, para. 62 (https://undocs.org/A/72/556).
195
restrictions on Palestinians’ use of West Bank roads, including complete prohibition
on using certain roads constructed for the exclusive use of settlers661. The
restrictions are enforced through a range of complementary measures, including a
permit regime for roads on which they may occasionally travel, hundreds of
permanent and temporary checkpoints, and physical obstacles such as gates, earth
mounds, roadblocks and trenches662, as shown in Figure 4.1 at p. 197.
4.95. These barriers to movement for Palestinians in the West Bank, which do
not apply to Israeli Jewish settlers, severely impair their ability to access their jobs,
farms, family members in other Palestinian communities, or medical, education, or
other services they need elsewhere in the OPT. This is part of the “coercive
environment” Israel has created in the West Bank, including East Jerusalem to
encourage Palestinians to leave, or to confine them in small enclaves where they
will be less of an obstacle to the extension of Israeli “sovereignty” to the West Bank.
4.96. In 2022, the Independent International Commission of Inquiry found that
Israel’s transportation infrastructure in the OPT was designed to serve only the
Jewish Israeli settler population, and that, in contrast, the movement of Palestinians
continued to be restricted, adversely affecting their access to employment and
services:
“While Israel has implemented extensive infrastructure projects to facilitate
the movement of settlers, including networks of bypass roads, the
movement of Palestinians in the West Bank continues to be restricted,
severely infringing upon their freedom of movement and access to services
and livelihoods.”663
4.97. The movement of Palestinians in the West Bank and East Jerusalem has
also been seriously restricted by the Wall and its associated regime664. As shown in
Figure 3.6 at p. 103 above, the Wall extends deep into the OPT, far beyond the
boundaries of East Jerusalem, even as unilaterally expanded by Israel, and cuts deep
661 ACRI, One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank,
October 2014, pp. 105-107 (https://tinyurl.com/masa37p3).
662 UNCTAD, Report on UNCTAD assistance to the Palestinian people: Developments in the
economy of the Occupied Palestinian Territory, 8 August 2022, TD/B/EX(72)/2, para. 21
(https://undocs.org/TD/B/EX(72)/2).
663 Human Rights Council, 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, para. 49 (footnote omitted) (https://undocs.org/A/HRC/50/21).
664 See HaMoked: Center for Defence of the Individual, The Permit Regime. Human Rights
Violations in the West Bank Area Known as the “Seam Zone”, March 2013
(https://tinyurl.com/jhzmtf55). See also paras. 3.125-3.130 above.
196
into the rest of the West Bank. It is a physical complex, which now extends for
more than 450 km, consisting of concrete walls, fences, ditches, razor wire, sand
paths, an electronic monitoring system, patrol roads, a buffer zone and several
military checkpoints – all of which severely restrict the movement and access to
land of Palestinians who reside within its confines as well as access to the Holy City
by Palestinians from the rest of the West Bank665. In contrast, no restrictions are
placed on the movement of Jewish Israelis within, into or out of this zone and no
permits are required for their movement within the so-called “seam zone”666
either667.
4.98. The Wall and its associated regime operate to cut off East Jerusalem
from the rest of the OPT. Palestinians from the rest of the West Bank and the Gaza
Strip, unlike Israeli settlers living in the West Bank or Israelis living in Israel,
“require special permits from the Israeli military” to enter East Jerusalem, and may
only do so through four of the 14 checkpoints668. Israel has made it extremely
difficult for Palestinians to acquire such permits, by constantly adding increasingly
cumbersome application requirements669. The high rejection rates of permit
applications, complex application procedures, and limited gate openings have had
their inevitable effect: the number of permits requested by landowners and
agricultural workers dropped by 77 % between 2014 and 2021670. Even when such
permits are obtained, they “are cancelled every time the military imposes a
665 UNOCHA, Fact Sheet: The humanitarian impact of 20 years of the Barrier,
30 December 2022 (https://tinyurl.com/ybhm7d7v).
666 The area of the OPT between the Green Line and the annexation Wall is referred to as the
“Seam Zone”.
667 See ACRI, One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank
October 2014, pp. 109-114 (https://tinyurl.com/masa37p3).
668 UNOCHA, Fact Sheet: The humanitarian impact of 20 years of the Barrier,
30 December 2022 (https://tinyurl.com/ybhm7d7v); Report of the Special Rapporteur on the
situation of human rights in the Palestinian territories occupied since 1967, 12 August 2022,
A/HRC/49/87, para. 42 (https://undocs.org/A/HRC/49/87).
669 The number of such requirements quadrupled between 2003 and 2022. Initially,
Palestinians were only required to provide their name and ID number to access their lands. They are
now required to provide their name; ID number; land registration; ownership certificate; copies of
ID cards; inheritance certificates; owners documents (for workers); and landlord declaration of
responsibility for workers, inter alia. Spouses and children of landowners often have to apply as
agricultural workers. Permit applications are regularly rejected on grounds that farmers failed to
prove their “connection to the land” to the satisfaction of the Israeli authorities, or for unspecified
“security concerns”. Between 2014 and 2021, the rejection rate of permit applications fluctuated
between 31 % and 67 %. See UNOCHA, Fact Sheet: The humanitarian impact of 20 years of the
Barrier, 30 December 2022 (https://tinyurl.com/42v82t92).
670 Ibid.
West
Jerusalem
32°15'N
32°00'N
31°30'N
31°45'N
31°15'N
32°15'N
32°30'N
32°00'N
31°30'N
31°45'N
31°15'N
ISRAEL
ISRAEL
JORDAN
JORDAN
PALESTINE
West Bank
West
Bank
East
Jerusalem
Jericho
Hebron
Bethlehem
Ramallah
Salfit
Tubas
Jenin
Qalqiliya Nablus
Tulkarm
35°15'E 35°30'E
35°15'E 35°30'E
34°45'E 35°00'E
Dead
Sea
Mediterranean
Sea
The Green
Line
JORDAN
VALLEY
JORDAN
VALLEY
Prepared by: International Mapping
ISRAELI CONTROL
REGIME
0 10 20 30 40
Kilometers
Checkpoint
Partial Checkpoint
Road Gate
Road Block
Earthmound
Wall
Trench
Road Barrier
0 5 10 15 20
Miles
Legend: So-called “Area C” restricted
for Palestinians
Source: United Nations’ Office for the Coordination of Humanitarian Affairs, (OCHA) Figure 4.1
https://www.ochaopt.org/content/west-bank-access-restrictions-may-2023
197
199
‘complete closure’ on the OPT, such as on Jewish holidays”671. The requirement to
obtain a permit has stark practical consequences. For example, between 2019 and
2021 the Israeli authorities denied some 24,000 applications by Palestinians in the
West Bank seeking permission to enter East Jerusalem for the purpose of receiving
medical care in Palestinian hospitals672. Permits are even more difficult to obtain
for Palestinians from the Gaza Strip who are living under a 17-year blockade673. As
described by UNOCHA, “[a]bout 2.1 million Palestinians in Gaza are ‘locked in’,
the vast majority unable to access the remainder of the oPt and the outside world,
limiting access to medical treatment unavailable in Gaza, to higher education, to
family and social life, and to employment and economic opportunities.”674
4.99. In the West Bank, this overtly discriminatory system, imposed by Israel,
seriously interferes with the lives of some 10,000 Palestinians living in the “seam
zone” and several thousand more who are dependent on farmlands within it. As the
High Commissioner for Human Rights found in March 2023:
“The Separation Wall divides thousands of Palestinians from each other and
their lands. It constitutes a major obstacle to their freedom of movement –
including impairing access to health-care, schools and employment – and it
imposes a suffocating straitjacket on their lives.”675
4.100. The impact of these discriminatory restrictions is immense and farreaching.
They violate a number of fundamental human rights – including the right
to freedom of movement – and severely impair access to livelihoods, housing,
schools and universities, healthcare facilities, cultural and religious institutions and
social gatherings at the personal and national level, among other essential
components of a normal life.676 A 2021 United Nations report found that:
“[r]estrictions were imposed on the movement of Palestinians between the
West Bank, including East Jerusalem, the Gaza Strip and with regard to
671 B’Tselem, Restrictions on Movement, 11 November 2017 (https://tinyurl.com/bde74zyc).
672 WHO, Right to Health: Barriers to health and attacks on health care in the occupied
Palestinian territory, 2019 to 2021, Report 2022, 2023, p. 9 (https://tinyurl.com/3nh6fmnn).
673 See below, paras. 4.104-4.105 and 4.192-4.202.
674 UNOCHA, “Gaza Strip, the humanitarian impact of 15 years of the blockade”, June 2022
(https://tinyurl.com/d58awzrz).
675 United Nations Office of the High Commissioner for Human Rights, Statement by High
Commissioner on report on the Occupied Palestinian Territory, 3 March 2023
(https://tinyurl.com/yssvhhx3).
676 UNCTAD, Report on UNCTAD assistance to the Palestinian people: Developments in the
economy of the Occupied Palestinian Territory, 8 August 2022, TD/B/EX(72)/2, paras. 21 ff.
(https://undocs.org/TD/B/EX(72)/2).
200
travelling abroad. Some 593 Israeli checkpoints and roadblocks continue to
effectively obstruct Palestinians’ access to rights and services, including
health, education and work. In addition, Palestinians in the West Bank are
barred from using roads built for Israeli settlers. Those who attempt to cross
checkpoints are routinely harassed and obstructed, severely hindering their
freedom of movement.”677
4.101. The 2022 Concluding Observations of the Human Rights Committee
reiterated:
“its deep concern about the continuing restrictions on freedom of movement
imposed by the State party throughout the Occupied Palestinian Territory,
including East Jerusalem, through its discriminatory permit regime and the
designation of access-restricted areas. It is further concerned that, in
enforcing movement and access restrictions, the Israeli security forces often
use lethal force, such as live ammunition, leading to deaths and serious
injuries of, inter alia, Palestinian commuters from the West Bank …, Gazan
farmers whose lands were designated as an access-restricted area, and
Gazan fishermen fishing along the coast of Gaza, where the authorized
fishing zones are often reduced or entirely closed (arts. 2, 12 and 26).”678
4.102. In December 2022, the General Assembly, in resolution 77/247, also
expressed its “deep concern”
“about the Israeli policy of closures and the imposition of severe
restrictions, including through hundreds of obstacles to movement,
checkpoints and a permit regime, all of which obstruct the freedom of
movement of persons and goods, including medical and humanitarian
goods, and the follow-up and access to donor-funded projects of
development cooperation and humanitarian assistance, throughout the
Occupied Palestinian Territory, including East Jerusalem, and impair the
Territory’s contiguity, consequently violating the human rights of the
Palestinian people and negatively impacting their socioeconomic and
humanitarian situation, which remains dire in the Gaza Strip, and the efforts
677 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2021, A/76/433, para. 13 (footnote omitted)
(https://undocs.org/A/76/433).
678 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 36 (emphasis added)
(https://undocs.org/CCPR/C/ISR/CO/5).
201
aimed at rehabilitating and developing the Palestinian economy, and calling
for the full lifting of restrictions”679.
4.103. These effects on the livelihoods of the Palestinians in the West Bank
have been severe. As reported by UNCTAD in 2021:
“The stricter closures and restrictions imposed by Israel on the West Bank
in the aftermath of the second intifada have arrested development, exerted
a long-lasting toll and aggravated the economy’s deep-seated structural
weaknesses and vulnerability. These are manifested by volatile economic
growth, chronic fiscal and external deficits and persistently high
unemployment and poverty rates. The measures imposed by the occupying
Power have had a long-lasting impact that continues to constrain the
regional economy of the West Bank to this day … The cumulative economic
cost of the stricter Israeli restrictions, in the period 2000–2019, is estimated
at $58 billion (constant 2015 dollars), equivalent to 4.5 times the size of the
West Bank regional economy or 3.5 times the size of the entire economy of
the Occupied Palestinian Territory in 2019.”680
4.104. The effects have been even worse for those in Gaza. As UNCTAD
found in 2020:
“The 2 million Palestinians in Gaza have been under a complete land, sea
and air closure and restrictions since June 2007 and, after December 2008,
endured three major rounds of hostilities in the span of six years. This study
attempts to quantify the economic costs of occupation related to the closure
and restrictions and the military operations in the period 2007–2018. From
a macroeconomic perspective, the foregone economic growth could have
resulted in GDP per capita of between 50 and 100 per cent greater than the
current level. It is estimated that the cumulative loss of potential GDP, or
part of the economic costs of occupation, in the period 2007–2018 is
$16.7 billion (real 2015 dollars), equivalent to six times the GDP of Gaza
or 107 per cent of the GDP of the Occupied Palestinian Territory in 2018.
Total GDP in this period could have increased by nearly 40 per cent. This
679 General Assembly, Resolution 77/247, 30 December 2022, preamble.
680 UNCTAD, Report on UNCTAD assistance to the Palestinian people: Developments in the
economy of the Occupied Palestinian Territory, 8 August 2022, TD/B/EX(72)/2, p. 32
(https://undocs.org/TD/B/EX(72)/2).
202
could have reduced the poverty rate in 2017 from 56 to 15 per cent and
contracted the poverty gap from 20 to 4 per cent.”681
4.105. The inevitable result of these restrictions is a coercive environment that
leads to the forcible displacement of Palestinians to other parts of the OPT, if they
can obtain permission from the Israeli authorities to do so, or out of Palestine
altogether, leaving their homes, lands and family behind.
4.106. But Israel has also placed severe restrictions on the ability of
Palestinians to leave and return to the OPT – notwithstanding Article 12 of the
ICCPR and customary international law, which establish the right of individuals to
leave and enter their own country682. A 2021 United Nations report found that:
“Restrictions were imposed on the movement of Palestinians between the
West Bank, including East Jerusalem, the Gaza Strip and with regard to
travelling abroad.”683
4.107. Palestinians who hail from East Jerusalem can only live in their city if
they obtain and maintain a “permanent residency”, which is granted by a decision
of the Israeli authorities684. Since 1995 the West Bank and Gaza Strip have been
treated by Israel as “foreign countries” for the purpose of permanent residence in
Jerusalem685. As such, “permanent residency” status is only held by Palestinians
native of Jerusalem. Moreover, even Palestinians who qualify for “permanent
residency” in Jerusalem may be stripped of that status if the Israeli Minister of the
Interior determines that their “centre of life” has moved from Jerusalem686. Thus,
Palestinians from Jerusalem who travel abroad for a few years for their studies,
work or family life may find that the authorities declared that their “centre of life”
has changed – and thus may lose their “permanent residency” status and be
681 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: The
Impoverishment of Gaza under Blockade, Geneva, United Nations, 2020, p. 34
(https://tinyurl.com/pef2598f).
682 Norwegian Refugee Council, Fractured Lives. Restrictions on Residency Rights and
Family Reunification in Occupied Palestine, December 2015 (https://tinyurl.com/3rv4w5rp).
683 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2021, A/76/433, para. 13 (https://undocs.org/A/76/433).
684 See Article 11 lit. c and 11 A Entry into Israel Law and regulations issued thereunder,
5734-1974; Israeli Collection of Regulations No. 3201, 18 July 1974, p. 1517.
685 By means of an amendment to Article 11 lit. c Entry into Israel Law.
686 See Article 11 lit. c and 11 A Entry into Israel Law and regulations issued thereunder,
5734-1974; Israeli Collection of Regulations No. 3201 (18 July 1974), p. 1517.
203
prevented from returning. This leaves them then without any official identification
papers, impairing their ability to live anywhere in the OPT.
4.108. The Special Rapporteur found it discriminatory that “this residency
status can be cancelled if they leave Jerusalem for a period of time, a threat that
Jewish Israelis do not face”.687 The CERD Committee described the law on which
these practices are based – the Entry into Israel Law (Law No. 5712-1952) – as
“discriminatory”:
“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”688.
4.109. The discriminatory state of affairs in Jerusalem was summarized by the
Special Rapporteur:
“the legal status of almost all Palestinian Jerusalemites under Israeli law is
as a ‘permanent resident’ which is the same legal status given to foreign
nationals in Israel. Palestinian permanent residents pay taxes … but, unlike
citizens, they possess no secure right to remain in Jerusalem. While under
the laws of occupation the Palestinian Jerusalemites are ‘protected persons’,
Israel does not recognize that status. … Not having permanent resident
status prevents Palestinians from other parts of the Occupied Palestinian
Territory from legally residing or even visiting Jerusalem.”689
F. ISRAEL’S DISCRIMINATION AGAINST PALESTINIANS IN RESPECT OF
THE RIGHT TO MARRIAGE AND CHOICE OF SPOUSE
4.110. Israeli laws and policies severely curtail Palestinians’ right to marry and
freely choose a spouse. The Citizenship and Entry into Israel Law (Temporary
Order), as extended, has entrenched a freeze by Israel’s Ministry of the Interior on
687 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 44
(https://undocs.org/A/HRC/49/87).
688 CERD Committee, Concluding observations on the combined seventeenth to nineteenth
reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19, para. 15
(https://undocs.org/CERD/C/ISR/CO/17-19).
689 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 41 (https://undocs.org/A/73/447).
204
family unification applications involving Palestinian spouses from the OPT690. The
law was reauthorized in March 2022691 and extended most recently in
March 2023692.
4.111. The law removes the possibility, with certain rare exceptions, of family
reunification between an Israeli citizen and a person residing anywhere in the OPT,
thus greatly impairing family ties and restricting the right to marriage and choice of
spouse693. It particularly targets Palestinian couples in which one partner is a citizen
of Israel or a resident of occupied East Jerusalem, and the other resides in the West
Bank or in the Gaza Strip694.
4.112. This policy is entirely discriminatory in its operation, with no such
restrictions placed on Jewish Israeli couples, regardless of whether they are
residents of Israel or reside illegally as settlers in the OPT, including East
Jerusalem, and regardless of whether they are citizens of Israel or non-citizens
entitled by Israel to claim citizenship by virtue of their Jewish ancestry.
4.113. Palestinians who live in the OPT and wish to form a family with a
spouse who is not a resident of the OPT must apply for a residence permit for their
spouse. Such a permit is rarely, if ever, granted695. Palestinians from the West Bank
who marry a Palestinian spouse from the Gaza Strip also require an Israeli permit
to be able to live with their spouses. In contrast, Jewish Israeli settlers can freely
choose not only to live in the OPT, in breach of international law, but their
respective spouses can also freely join them there, and additionally receive a
financial stipend on arrival696.
4.114. Palestinians from East Jerusalem who marry a Palestinian spouse from
elsewhere in the OPT, and who wish to live with their spouses in East Jerusalem,
have to apply to the Israeli Ministry of Interior for family unification697. In
690 Nationality and Entry into Israel Law (Temporary Order) – 5763-2003.
691 “Knesset Plenum passes Citizenship and Entry into Israel Bill into law”, Knesset News,
10 March 2022 (https://tinyurl.com/72znymaf).
692 “Knesset extends law banning Palestinian family unification for another year”, Times of
Israel, 6 March 2023 (https://tinyurl.com/42ce52a5).
693 Committee on the Elimination of Racial Discrimination, Consideration of reports submitted
by States parties under article 9 of the Convention. Concluding Observations (Israel),
CERD/C/ISR/CO/14-16, 3 April 2012, para. 18 (https://undocs.org/CERD/C/ISR/CO/14-16).
694 Ibid.
695 Al-Haq, Engineering Community: Family Unification, Entry Restrictions and other Israeli
Policies of Fragmenting Palestinians, February 2019, pp. 9-11 (https://tinyurl.com/2h9dwyk2).
696 Ibid., p. 6.
697 Norwegian Refugee Council, Fractured Lives. Restrictions on Residency Rights and
Family Reunification in Occupied Palestine, December 2015, p. 41(https://tinyurl.com/3rv4w5rp).
205
May 2002, the Israeli Government’s Ministry of the Interior issued Decision
No. 1813, which froze the processing of all family unification applications by
citizens of Israel and residents of East Jerusalem involving Palestinian spouses from
the OPT698. Statements by government officials made it clear that the freeze was
due to the Government’s fear that Palestinians were achieving a “creeping right of
return” through the family unification process699.
4.115. This policy led the CERD Committee to express its concern:
“about Israel’s Temporary Suspension Order of May 2002, enacted into law
as the Nationality and Entry into Israel Law (Temporary Order) on
31 July 2003, which suspends, for a renewable one-year period, the
possibility of family reunification, subject to limited and discretionary
exceptions, in cases of marriage between an Israeli citizen and a person
residing in the West Bank or Gaza … The … Law … raises serious issues
under the International Convention on the Elimination of All Forms of
Racial Discrimination. The State party should revoke this law and
reconsider its policy with a view to facilitating family unification on a nondiscriminatory
basis.”700
4.116. In 2007, the CERD Committee found that “[s]uch restriction targeting
a particular national or ethnic group in general is not compatible with the
Convention, in particular the obligation of the State party to guarantee to everyone
equality before the law.”701 It thus recommended that Israel “revoke the Citizenship
and Entry into Israel Law (Temporary Order), and reconsider its policy with a view
to facilitating family reunification on a non-discriminatory basis”702.
4.117. In its 2012 review of Israel, the CERD Committee again expressed its
concern over “the maintenance of discriminatory laws’ in this area. Notably it urged
Israel: “to revoke the Citizenship and Entry into Israel Law (Temporary provision)
698 B’Tselem and HaMoked, Forbidden Families: Family Unification and Child Registration
in East Jerusalem, January 2004, p. 11 (https://tinyurl.com/4e48s88u).
699 Al-Haq, Engineering Community: Family Unification, Entry Restrictions and other Israeli
Policies of Fragmenting Palestinians, February 2019, p. 18 (https://tinyurl.com/2h9dwyk2).
700 Decisions adopted by the Committee at its sixty-third session, Decision 2 (63): Israel,
1599th meeting (14 August 2003) (emphasis added).
701 Committee on the Elimination of Racial Discrimination, Consideration of reports submitted
by States parties under article 9 of the Convention. Concluding Observations (Israel), 14 June 2007,
CERD/C/ISR/CO/13, para. 20 (emphasis added) (https://undocs.org/CERD/C/ISR/CO/13).
702 Ibid. (emphasis added).
206
and to facilitate family reunification of all citizens irrespective of their ethnicity or
national or other origin.”703
4.118. In its 2020 Concluding Observations, the CERD Committee once again
called on Israel to:
“review its legislation in order to ensure the respect of the principles of
equality, non-discrimination and proportionality, and further facilitate
family reunification of all citizens and permanent residents of the State
party.”704
4.119. In the same vein, the Committee on Economic, Social and Cultural
Rights urged in its 2019 Concluding Observations that:
“the State party review the Citizenship and Entry into Israel Law
(Temporary Order) with a view … to facilitating the exercise of family
reunification for all citizens and permanent residents irrespective of their
status or background.”705
4.120. In the face of these repeated criticisms and emphatic calls for Israel to
revoke the discriminatory regime preventing family unification, Israel did exactly
the opposite. In 2022, it introduced a new section into the Citizenship and Entry
into Israel Law which explicitly states that the purpose of the law is to ensure a
Jewish demographic majority:
“The purpose of this law is to establish restrictions on citizenship and
residence in Israel by citizens or residents of hostile countries or from the
region, alongside irregular arrangements for residence licenses or permits to
stay in Israel – all while taking into consideration the fact that Israel is a
Jewish and democratic state, and in a manner that will ensure safeguarding
of vital interests for the state’s national security.”706
703 Committee on the Elimination of Racial Discrimination, Consideration of reports submitted
by States parties under article 9 of the Convention. Concluding Observations (Israel), 3 April 2012,
CERD/C/ISR/CO/14-16, para. 18 (emphasis added) (https://undocs.org/CERD/C/ISR/CO/14-16).
704 Committee on the Elimination of Racial Discrimination, Concluding observations on the
combined seventeenth to nineteenth reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19,
para. 25 (emphasis added) (https://undocs.org/CERD/C/ISR/CO/17-19).
705 Committee on Economic, Social and Cultural Rights, Concluding observations on the
fourth periodic report of Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 41 (emphasis added)
(https://undocs.org/E/C.12/ISR/CO/4).
706 English translation of the section of the law from Adalah, Israel Reinstates Ban on
Palestinian Family Unification, 10 March 2022 (https://tinyurl.com/4c53rtvr). See also “Family
207
4.121. In its May 2022 report, the Independent International Commission of
Inquiry “note[d] the renewal on 10 March 2022 … of the Citizenship and Entry into
Israel Law (Temporary Order)”. Given its discriminatory impact on Palestinians,
the Commission observed that “[t]his Law comes in stark contrast to the Law of
Return (1950), which provided for the right of ‘every Jew’ to settle in Israel”707.
4.122. A similar finding was made by the Human Rights Committee in its
May 2022 report:
“The Committee is concerned that the Citizenship and Entry into Israel Law
(Temporary Order) continues to prohibit family reunification of Israeli
citizens with their Palestinian spouses living in the West Bank or Gaza Strip,
or with spouses living in States classified as ‘enemy States’. It is further
concerned that, under the Law, East Jerusalem residents are required to
either surrender their residency and live in the West Bank or apply for an
annual permit for the non-resident spouse.”708
G. ISRAEL’S DISCRIMINATION AGAINST PALESTINIANS IN RESPECT OF
FREEDOM OF RELIGION
4.123. Customary international law, as reflected in Article 5 of CERD,
provides for protection from racial discrimination in the exercise of one’s right to
freedom of thought, conscience and religion. However, as indicated in Chapter 3
above709, access to places of worship for Palestinian Christians and Muslims in the
OPT is severely restricted by the Israeli authorities, while Israeli settlers living in
the OPT and other Israeli citizens, can freely travel to, and pray at holy sites
throughout the OPT, including East Jerusalem.
4.124. Hundreds of thousands of Palestinians – Muslims and Christians – have
regularly been impeded from worshipping at sites that are among the most
significant to their faiths in the world, particularly in East Jerusalem. Palestinians
residing in the West Bank and the Gaza Strip need a permit each time they want to
enter East Jerusalem to pray either at the Al-Aqsa Mosque/Al-Haram Al-Sharif or
Unification Bill Meant to Stop Palestinian 'Creeping Right of Return,' Israel's Shaked Says”,
Haaretz, 9 February 2022 (https://tinyurl.com/y5uemref).
707 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, para. 46
(footnote omitted) (https://undocs.org/A/HRC/50/21).
708 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 44 (https://undocs.org/CCPR/C/ISR/CO/5).
709 See para. 3.133 above.
208
the Church of the Holy Sepulchre710. Israel also routinely imposes age restrictions
on Palestinians’ access to the Al-Haram Al-Sharif in East Jerusalem, and Israeli
authorities sometimes prohibit the entry of Muslim worshippers for several days at
a time711.
4.125. The inability of Palestinians living in the Gaza Strip to exercise their
right to worship is particularly severe. Generally, only particular categories of
Palestinian Christians from Gaza have been allowed to apply for a permit to travel
to Jerusalem and/or Bethlehem to pray, and those applications are often denied or
given selectively and randomly to some members of a family but not others712.
4.126. The starkly discriminatory nature of Israel’s restrictions on the ability
of Palestinians to access holy Christian and Muslim sites in the OPT is thrown into
especially sharp relief when compared with Israel’s active promotion and protection
of the exercise of religious rights for Jewish Israeli settlers in the OPT713.
4.127. The Committee on Economic, Social and Cultural Rights has criticized
Israel’s discriminatory restrictions on Palestinians’ right of freedom of religion.
In 2019, for example, the Committee stated that it was:
“concerned that Palestinians living in the Gaza Strip are impeded from
visiting religious sites in the West Bank, including East Jerusalem, due to
the closure policy of the State party and that Palestinians living in the West
Bank too are restricted from visiting religious sites in East Jerusalem.”714
The Committee therefore:
“recommend[ed] that the State party [Israel] ensure that Palestinians living
in the Occupied Palestinian Territory exercise their right to take part in
710 See paras. 4.92-4.109 above. See also UNOCHA, “Some 320,000 West Bank ID holders
permitted into East Jerusalem for Ramadan Friday prayers”, in The Monthly Humanitarian Bulletin,
June 2019 (https://tinyurl.com/48suwp79).
711 See “Violence in Middle East Increased Despite Major Religious Observances, Special
Coordinator Tells Security Council, Urging Two-State Solution”, Security Council Meetings
Coverage, 9309th Meeting, SC/15264, 25 April 2023, sp. briefing by Tor Wennesland, Special
Coordinator for the Middle East Peace Process; see also Ir Amim, Collective Restrictions on the
Entry of Muslim Worshippers to the Temple Mount/Haram al-Sharif, November 2015
(https://tinyurl.com/ydc4uwyc).
712 M. Luft, “Living in a Legal Vacuum: The Case of Israel’s Legal Position and Policy
towards Gaza Residents”, Israel Law Review, Vol. 51, 2018, No. 2, pp. 207-210.
713 ACRI, One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank,
October 2014, pp. 104-106 (https://tinyurl.com/masa37p3).
714 Committee on Economic, Social and Cultural Rights, Concluding observations on the
fourth periodic report of Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 70
(https://undocs.org/E/C.12/ISR/CO/4).
209
cultural and religious life without restrictions other than those that are
strictly proportionate to security considerations and are not discriminatory
in their application …”715.
H. ISRAEL’S DISCRIMINATORY LAND DISTRIBUTION AND
PLANNING REGIME IN THE OPT
4.128. At the outset of its occupation in 1967, Israel immediately confined
Palestinians in the West Bank, including East Jerusalem, to the areas already builtup
at the time, in furtherance of its objective of seizing maximum Palestinian land
with minimum Palestinians. These areas represented less than 15 % of East
Jerusalem and about 40 % of the rest of the West Bank.
4.129. 60 % of the West Bank was thus kept largely off-limits for Palestinians
since the onset of the occupation in 1967 (as depicted in Figure 3.7 at p. 115
above), Israel has declared the vast majority of land located in this area of the
Occupied Territory to be so-called “state land”716. Over 99.7 % of that “state land”
has been allocated to Israeli settlers in more than 270 illegal settlements, the Israeli
army or other organs of the Israeli State; less than 1 % has been allocated to
Palestinians717. As a result, Palestinians are automatically prevented from making
any use of almost two thirds of the West Bank. At the same time, Israeli settlements
have been provided with vast tracts of such “state land” for planning, building and
expansion purposes. Israeli settlements have even been set up on privately-owned
Palestinian land718.
4.130. The discriminatory nature and effects of Israel’s land seizure and
distribution in the OPT is underscored in the 2020 Concluding Observations by the
CERD Committee:
“the Israeli settlements in the Occupied Palestinian Territory, in particular
the West Bank, including East Jerusalem, are not only illegal under
715 Ibid., para. 71 (emphasis added).
716 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, paras. 33-
34 (https://undocs.org/A/77/328).
717 Ibid. See also Al-Haq, Settling Area C: The Jordan Valley Exposed, 2018, p. 18
(https://tinyurl.com/34j4kfam); Peace Now, State Land Allocation in the West Bank – For Israelis
Only, 17 July 2018 (https://tinyurl.com/3v5za7f4).
718 See for example P. Beaumont, “Israel Votes to Authorise Illegal Settler Homes in
Palestine”, The Guardian, 5 December 2016 (https://tinyurl.com/yb57ar75).
210
international law but are an obstacle to the enjoyment of human rights by
the whole population, without distinction as to national or ethnic origin.”719
4.131. In addition to excluding Palestinians from most of the West Bank and
East Jerusalem, Israel has sought to minimize their ability to construct housing and
live in parts of the OPT from which they have not been formally excluded. The
major vehicle for accomplishing this is a planning policy which promotes
construction of Israeli settlements for Jewish Israelis, while at the same time
freezing construction in Palestinian communities. The discriminatory nature of this
regime has been widely recognized. The High Commissioner for Human Rights
stated that “Israeli zoning and planning policies in Area C and East Jerusalem are
discriminatory and considered incompatible with requirements under international
law”720. The September 2022 report of the Independent Commission of Inquiry
likewise found that: “the planning and zoning regime applied by Israel reflects a
clearly discriminatory approach, as it is a highly restrictive one targeted at
Palestinian construction, while a much more permissive regime is applied to
planning and zoning in settlements.”721
4.132. The vast majority of Israeli settlements in the OPT have detailed and
modern development plans, readily approved by the Israeli planning authorities,
further stimulating their growth and expansion. In contrast, the development of
most Palestinian villages is severely limited by Israeli policy and law722. For
example, in respect of East Jerusalem, it has been found that:
“the laws and national authority of Israel apply throughout East Jerusalem,
although in a manner that systemically discriminates against the Palestinian
community in the city. One prime example is the planning laws. Since 1967,
719 Committee on the Elimination of Racial Discrimination, Concluding observations on the
combined seventeenth to nineteenth reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19,
para. 4 (emphasis added) (https://undocs.org/CERD/C/ISR/CO/17-19).
720 United Nations High Commissioner for Human Rights, Israeli settlements in the Occupied
Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, Report of the
United Nations High Commissioner for Human Rights, 30 January 2020, A/HRC/43/67, para. 30
(emphasis added) (https://undocs.org/A/HRC/43/67). The report added at para. 41 that “[t]he Israeli
zoning and planning policy in East Jerusalem is inherently discriminatory and constitutes a key
factor of a coercive environment … forcing Palestinians to leave communities they have lived in for
generations …”.
721 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 45
(emphasis added) (https://undocs.org/A//77/328).
722 ACRI, One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank,
October 2014, p. 99 (https://tinyurl.com/masa37p3); B’Tselem, Planning Policy in the West Bank,
11 November 2017 (last updated 6 February 2019) (https://tinyurl.com/3uhbet7m).
211
Israel has expropriated over 38 per cent of the land base of East Jerusalem
exclusively for Israeli settlements and has zoned only 15 per cent
(amounting to 8.5 per cent of Jerusalem as a whole) for the residential needs
of Palestinian Jerusalemites.”723
4.133. The situation is equivalent in the West Bank. In 60 % of the West Bank,
the land for which master plans have been approved for construction by Palestinians
amounts to less than 1 % of the entire area724. Even in the 1 per cent of Area C that
remains for the approximately 180,000-300,000 Palestinian habitants, the Israeli
Civil Administration has imposed a highly restrictive planning regime that makes
permit application approval for Palestinian residential and commercial construction
virtually impossible725. The result is that:
“Palestinians in Area C ... are faced with … a steady rejection of almost all
of their submitted master plans, all of which amounts … to a coercive
environment that is forcing Palestinians to leave.”726
4.134. In 2022, the United Nations Commission of Inquiry described Israel’s
dual planning regimes – one for Israeli settlers and another for Palestinians – as:
“patterns of violation of the right to land and housing in the West Bank,
including systemic violations resulting from discriminatory planning and
zoning laws and policies …”727.
Thus:
“[W]hile settlements expand rapidly and Israeli settlers are able to construct
structures on occupied land, it is almost impossible for Palestinians to get
723 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 40 (emphasis added) (footnotes
omitted) (https://undocs.org/A/73/447).
724 Committee on Economic, Social and Cultural Rights, Concluding observations on the
fourth periodic report of Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 50
(https://undocs.org/E/C.12/ISR/CO/4).
725 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2018, A/73/447, para. 51
(https://undocs.org/A/HRC/73/447).
726 Ibid. (footnotes omitted).
727 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, para. 51
(emphasis added) (https://undocs.org/A/HRC/50/21).
212
building permits in Area C due to discriminatory zoning and planning
regimes.”728
4.135. The separate and unequal planning and zoning regimes lead to stark
contrasts in the number of approved building permits for Palestinians on the one
hand and Israeli settlers on the other729. In 2021, UN-Habitat explained:
“The vast majority of Palestinian applications for Israeli building permits in
Area C are rejected by the Israeli authorities on the grounds that the relevant
area has not been zoned for construction. This is the case even when the
land for which the permit is requested is undisputedly owned by the
Palestinian applicant.”730
4.136. The statistics on approved building permits show that it is almost
impossible for Palestinians to obtain a building permit: between 2009 and 2018 only
two per cent of all requests submitted by Palestinians to Israeli occupation
authorities for building permits in so-called “Area C” were granted (98 out of
4,422)731. UNOCHA has repeatedly described how official Israeli building permits
are “almost impossible”732, “nearly impossible”733, and “virtually impossible”734
for Palestinians in the West Bank to obtain. This has led to a surge of so-called
“administrative” demolitions and forced evictions by the Israeli occupying forces
against Palestinians who have been compelled to build without a permit735.
728 Ibid., para. 49 (emphasis added).
729 Committee on Economic, Social and Cultural Rights, Concluding observations on the
fourth periodic report of Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 50
(https://undocs.org/E/C.12/ISR/CO/4).
730 UNOCHA, UN-Habitat - Special Human Settlements Programme for the Palestinian
People, “Most Palestinian plans to build in Area C not approved”, in The Humanitarian Bulletin,
January-May 2021 (https://tinyurl.com/ydnbyypp).
731 Peace Now, (Dis)Approvals for Palestinians in Area C – 2009-2020, 31 January 2021
(https://tinyurl.com/2yp3num).
732 See, for example, UNOCHA, West Bank Demolitions and Displacement: An Overview,
November 2018 (https://tinyurl.com/3z7vkm8j).
733 See, for example, UNOCHA, West Bank Demolitions and Displacement, January 2018
(https://tinyurl.com/yhp9k666).
734 UNOCHA, West Bank Demolitions and Displacement: An Overview, March 2019
(https://tinyurl.com/4fkprd9c).
735 See paras. 3.108-3.110 and 3.226-3.236 above. See also UNOCHA, UN-Habitat - Special
Human Settlements Programme for the Palestinian People, “Most Palestinian plans to build in Area
C not approved”, in The Humanitarian Bulletin, January-May 2021 (https://tinyurl.com/ydnbyypp).
See T. Wennesland, United Nations Special Coordinator for the Middle East Peace Process, Security
Council Briefing on the Situation in the Middle East: Report of the Secretary-general on the
implementation of UNSCR 2334 (2016), 22 March 2023, p. 2 (https://tinyurl.com/5fv5t8hy).
213
4.137. The discriminatory outcome of the permit application process is
virtually guaranteed by the procedures Israel has put in place to review applications
from Palestinians. In the West Bank, the Israeli military commander has appointed
local and regional councils which consist of elected representatives of the Jewish
Israeli settlers as “special local planning committees”736; and these special
committees have been granted the authority otherwise afforded to local and regional
planning committees737. They are therefore empowered to formulate plans and issue
building permits, including to their own communities. Palestinians in the West
Bank have no such authority. The result is that Israeli settlers, illegally present in
the occupied territory – but not the indigenous Palestinians – enjoy representation
of their interests in the relevant planning committees and are full partners in the
planning process as it pertains to their settlements, including the issuing of building
permits and the supervision of construction, compounding the unlawfulness of these
actions738.
4.138. The planning procedure for Palestinian villages is completely different.
Notably, Palestinian village councils cannot act as local planning committees.
Rather, by virtue of Military Order 418, the planning committees responsible for
Palestinian villages and cities are comprised only of representatives of Israel739. As
the Special Rapporteur explained in 2022: “Unlike Jewish settlers, Palestinians
have no representation or voice in decision-making over zoning and property use
throughout most of the West Bank.”740
4.139. In 2014, the United Nations Secretary-General provided a detailed
account of the various ways in which Israeli planning policy is “discriminatory
against Palestinians as compared with Israeli settlers”:
“In Area C of the West Bank, Palestinians are not allowed to build on
approximately 70 per cent of the land mass and are subject to severe
restrictions regarding construction in the remaining 30 per cent. Less than 1
per cent of Area C has been planned for Palestinian urban development.
Palestinians are not represented in the planning process, unlike Israeli
736 See as to further details on this question: Norwegian Refugee Council, A Guide to Housing,
Land and Property Law in Area C of the West Bank, February 2012, pp. 57-58.
(https://tinyurl.com/y8rxf5at).
737 Article 2a City Planning Order. See also Amendment No. 2 (Military Order 604).
738 ACRI, One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank, October
2014, pp. 93-97 (https://tinyurl.com/masa37p3).
739 Ibid., p. 95.
740 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 43
(https://undocs.org/A/HRC/49/87).
214
settlers. The combination of these factors makes it virtually impossible for
Palestinians to obtain a permit to construct homes or infrastructure in Area
C. Many Palestinians therefore build without building permits, putting them
at risk of eviction, demolition of their homes and displacement. …
In contrast, Israeli authorities have provided settlements with detailed
planning and established preferential policies, including granting incentives
and benefits to settlers, allocating settlements land for expansion and
connecting them to public services and infrastructure. In addition, the strict
application of planning laws to Palestinian communities, which causes a
large number of evictions and demolitions of Palestinian structures,
contrasts with the flexibility shown by the planning authorities towards
Israeli settlements. …
Israeli planning policy is thus discriminatory against Palestinians as
compared with Israeli settlers.”741
4.140. In 2019, the Committee on Economic, Social and Cultural Rights
voiced similar concern about:
“the discriminatory effect of planning and zoning laws and policies on
Palestinians and Bedouin communities in the West Bank, as illustrated by
the fact that less than 1 per cent of the land in Area C and 13 per cent of the
land in East Jerusalem is allocated for the construction of infrastructure for
Palestinians.”742
4.141. The CERD Committee in its 2020 Concluding Observations on Israel
likewise stated that it was “particularly concerned”:
“(a) About the discriminatory effect of planning and zoning laws and
policies on Palestinians and Bedouin communities in the West Bank, the
continued demolitions of buildings and structures, including water wells,
and as a consequence, further displacement of Palestinians;
(b) That the process of applying for building permits is prolonged,
complicated and expensive and that few such applications are approved,
while a preferential treatment continues for the expansion of Israeli
741 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and in the occupied Syrian Golan, 12 February 2014, A/HRC/25/38,
paras. 12-14 (footnotes omitted) (https://undocs.org/A/HRC/25/38).
742 Committee on Economic, Social and Cultural Rights, Concluding observations on the
fourth periodic report of Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 50 (emphasis added)
(https://undocs.org/E/C.12/ISR/CO/4).
215
settlements, including through the use of ‘State land’ allocated for
settlements …”743.
4.142. In 2022, the Human Rights Committee found that the different planning
regimes applicable to Israeli settlements and Palestinian communities in the West
Bank contravene the prohibition of discrimination contained in Article 26 ICCPR.
The Committee, “[w]hile noting the State party’s claim that demolitions are limited
to illegal constructions”, regretted “that Palestinians have been systematically
deprived of their land and housing rights for decades, and the restrictive zoning and
planning regime in the West Bank makes it almost impossible for Palestinians to
obtain construction permits, leaving them with no choice but to build illegally and
risk demolition and eviction. In this respect, the Committee expresses its deep
concern that the systematic practice of demolitions and forced evictions based on
discriminatory policies … amounts to racial segregation (arts. 2, 7, 12, 14, 17, 26
and 27).”744
4.143. The Committee strongly reiterated its previous recommendations:
“that the State party [Israel] refrain from implementing evictions and
demolition orders based on discriminatory planning policies, laws and
practices affecting Palestinians, and also Bedouin, in the West Bank,
including East Jerusalem. The State party should review and reform its
planning and zoning regime and construction permit system in order to
prevent forced evictions and demolitions resulting from the fact that it is
impossible for Palestinians to obtain construction permits and ensure that
affected populations are allowed to participate in the planning process. It
743 Committee on the Elimination of Racial Discrimination, Concluding observations on the
combined seventeenth to nineteenth reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19,
para. 42 (emphasis added) (https://undocs.org/CERD/C/ISR/CO/17-19). On the discriminatory
nature of Israel’s land distribution and planning regime see also Human Rights Council, Report of
the Special Rapporteur on adequate housing as a component of the right to an adequate standard of
living, and on the right to non-discrimination in this context, Raquel Rolnik. Addendum. Mission to
Israel and the Occupied Palestinian Territory, 24 December 2012, A/HRC/22/46/Add.1,
paras. 50-51 (https://undocs.org/A/HRC/22/46/Add.1); Report of the Special Rapporteur on the
situation of human rights in the Palestinian territories occupied since 1967, 23 October 2017,
A/72/556, para. 54 (https://undocs.org/A/72/556); Report of the Special Rapporteur on the situation
of human rights in the Palestinian territories occupied since 1967, 12 August 2022, A/HRC/49/87,
paras. 7 and 38-44 (https://undocs.org/A/HRC/49/87); Human Rights Council, 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, para. 51 (https://undocs.org/A/HRC/50/21).
744 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 42 (https://undocs.org/CCPR/C/ISR/CO/5).
216
should also ensure that procedural safeguards and due process guarantees
are provided against forced evictions and demolitions.”745
4.144. Israel, nevertheless, persists with such discriminatory planning policies,
laws and practices in the OPT, in breach of international law and in violation of the
rights of the Palestinian people.
I. DISCRIMINATORY ACCESS TO, AND RESTRICTIONS ON
USE OF NATURAL RESOURCES IN THE OPT
4.145. Since the beginning of its occupation of the Palestinian territory, Israel
has systematically appropriated the natural resources, including freshwater
resources, of the territory for itself, and for the benefit of its illegal settlements, to
the exclusion of the Palestinian people who, under international law, enjoy
permanent sovereignty over theses resources. This is both a violation of
international law746 and a means of entrenching its illegal colonization and
annexation of the West Bank, including East Jerusalem747.
4.146. Israel’s racially discriminatory appropriation of natural resources is
particularly pronounced in regard to access to water, the most vital resource in the
OPT. The Independent International Commission of Inquiry has described how
“Israel has taken control of all water resources in the West Bank and has been using
much of the water for its own purposes.”748
4.147. There are two main sources of water in the West Bank: the Jordan River
and the mountain aquifer. In respect of the former, “Israel has prohibited the
Palestinians from drawing any of its waters since the occupation began in 1967 by
declaring its riverbanks a closed military zone and by destroying Palestinian pumps
and irrigation ditches.”749 In respect of the latter, the disparity in extraction and
usage is vast. In 2014, for example, it was estimated that the distribution of the
aquifer’s waters was 87 per cent for Israel and just 13 per cent for the
745 Ibid., para. 43.
746 See Regulations concerning the Laws and Customs of War on Land, enclosed to the fourth
Hague Convention of 1907, Article 55.
747 See paras. 3.249-3.256 above.
748 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 35
(https://undocs.org/A/77/328).
749 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 30 May 2019, A/HRC/40/73, para. 44 (footnote omitted)
(https://undocs.org/A/HRC/40/73).
217
Palestinians750. The High Commissioner for Human Rights has described this as an
“extremely inequitable distribution of water”751.
4.148. Israel’s expropriation and discriminatory allocation of water resources
in the West Bank has been achieved through a combination of laws, administrative
measures and construction and control of physical water infrastructure. Shortly after
its seizure of the West Bank, the Israeli Military Commander issued an order on
15 August 1967, which transferred authority over all water resources in the West
Bank to the Israeli military752. The Israeli military directly managed the water
system in the West Bank until 1982. In that year, the Ministry of Defense transferred
control of the West Bank water supply system to Mekorot, an Israeli company that
is 50 % owned by the Government of Israel, which has controlled the water supply
system ever since753. The High Commissioner for Human Rights has described how
Mekorot operate[s] dozens of wells, trunk lines and reservoirs that abstract water
inside Palestinian territory and provides service instead to the Israeli settlements in
the West Bank754.
4.149. Numerous other independent reports have also highlighted Israel’s
discriminatory allocation of water resources in the OPT. In 2018, the Special
Rapporteur found that “[a]ccess to safe and sufficient drinking water in the
Occupied Palestinian Territory is severely compromised by the discriminatory
access to sources of water in the West Bank …”755. In 2019, the International
Committee of Jurists reported that “Israeli water policies and practices in the West
Bank discriminate against the Palestinian population and in favour of the settler
population. Indeed, the Palestinian water system in the West Bank has been
750 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 30 May 2019, A/HRC/40/73, para. 48
(https://undocs.org/A/HRC/40/73).
751 Report of the United Nations High Commissioner for Human Rights, Allocation of water
resources in the Occupied Palestinian Territory, including East Jerusalem, 15 October 2021,
A/HRC/48/43, para. 27 (https://undocs.org/A/HRC/48/43).
752 Military Order 92: “Order Concerning Jurisdiction over Water Regulations”.
753 As the Special Rapporteur has observed: “The West Bank water system, with its plentiful
mountain aquifers, have been owned since 1982 by Mekorot, the national water company, with the
benefits flowing primarily to Israel.” (Report of the Special Rapporteur on the situation of human
rights in the Palestinian territories occupied since 1967, 22 October 2018, A/73/447, para. 50
(footnote omitted) (https://undocs.org/A/73/447)).
754 Report of the United Nations High Commissioner for Human Rights, Allocation of water
resources in the Occupied Palestinian Territory, including East Jerusalem, 15 October 2021,
A/HRC/48/43, para. 18 (https://undocs.org/A/HRC/48/43).
755 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 14 July 2018, A/HRC/37/75, para. 27
(https://undocs.org/A/HRC/37/75).
218
integrated into Israel’s”756. In 2022, the Independent International Commission of
Inquiry found that:
“[t]he complete control exerted by Israel over water resources is a key factor
preventing Palestinians from accessing affordable and adequate water. This
control, coupled with prohibitions on the construction of new water
installations or carrying out maintenance on existing installations without a
military permit, has put Palestinians at a heightened risk of water
scarcity.”757
4.150. As a result of Israel’s actions, “some 180 Palestinian communities in
rural areas in the occupied West Bank have no access to running water”, while
“[e]ven in towns and villages which are connected to the water network, the taps
often run dry.” In contrast, “Israeli settlers in the West Bank – in some cases just a
few hundred meters away – face no such restrictions and water shortages, and can
enjoy and capitalize on well-irrigated farmlands and swimming pools.”758
4.151. In 2013, the Special Rapporteur urged Israel to:
“immediately end its discriminatory policies and practices that serve to deny
Palestinians their rightful share of water resources in the West Bank and the
Gaza Strip.”759
4.152. Likewise, the CERD Committee:
“urge[d] the State party [Israel] to reconsider the entire policy in order to
guarantee Palestinian … access to natural resources (especially water
resources).”760
756 International Commission of Jurists, The Road to Annexation – Israel’s Maneuvers to
Change the Status of the Occupied Palestinian Territories: A Briefing Paper, November 2019, p. 14
(https://tinyurl.com/5n82b9xk).
757 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 70
(https://undocs.org/A/77/328).
758 Amnesty International, The Occupation of Water, 29 November 2017
(https://tinyurl.com/3pnxac4c).
759 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 10 September 2013, A/68/376, para. 76
(https://undocs.org/A/68/376).
760 Committee on the Elimination of Racial Discrimination, Consideration of reports submitted
by States parties under article 9 of the Convention. Concluding Observations (Israel),
CERD/C/ISR/CO/14-16, 3 April 2012, para. 25 (https://undocs.org/CERD/C/ISR/CO/14-16). See
also on the discriminatory nature of Israel’s water and natural resource policy in the West Bank:
Report of the Special Rapporteur on the situation of human rights in the Palestinian territories
219
4.153. The extent of Israel’s discrimination against Palestinians in regard to
access to water, and the consequences suffered as a result, were highlighted by the
United Nations High Commissioner of Human Rights in a September 2021 report
on the “Allocation of water resources in the Occupied Palestinian Territory,
including East Jerusalem”761:
“Israeli authorities treat the nearly 450,000 Israeli settlers and 2.7 million
Palestinians residing in the West Bank (excluding East Jerusalem) under
two distinct bodies of law, resulting in unequal treatment on a range of
issues, including access to water.”762
“The prioritization by Israel/Mekorot of permanent water supply for Israeli
settlements, to the detriment of the Palestinian population, severely affects
the enjoyment of human rights of Palestinians, including the rights to water
and sanitation. Palestinians face continuing discriminatory practices,
which result in them being prevented from enjoying their rights to water and
sanitation.”763
occupied since 1967, A/72/556, 23 October 2017, para. 54 (https://undocs.org/A/72/556); Report of
the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, A/HRC/47/57, 29 July 2021, para. 58 (https://undocs.org/A/HRC/47/57); Human Rights
Council, 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, para. 52
(https://undocs.org/A/HRC/50/21); Report of the Independent International Commission of Inquiry
on the Occupied Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022,
A/77/328, para. 35 (https://undocs.org/A/77/328).
761 Report of the United Nations High Commissioner for Human Rights, Allocation of water
resources in the Occupied Palestinian Territory, including East Jerusalem, 15 October 2021,
A/HRC/48/43 (https://undocs.org/A/HRC/48/43).
762 Ibid., para. 31 (emphasis added) (footnote omitted).
763 Ibid., para. 66 (emphasis added). The Special Rapporteur has similarly described how “the
Israeli settlements have played a significant role in perpetuating the discriminatory extraction and
use of water in the West Bank. All Israeli settlements are linked to the Mekorot national water system
and receive developed-world levels of water for drinking, sanitation and commercial use. By way
of contrast, approximately 180 Palestinian communities in Area C have no connection to a water
network, leaving them to either rely on shallow wells or to purchase water from tankers at a
considerable price. The disparities are most acute in the Jordan Valley: figures from 2013 reveal that
the 10,000 Israeli settlers in the Valley were provided with the lion’s share of the 32 million m3 of
water drilled that year from the mountain aquifer by Mekorot for their domestic and agricultural use.
In comparison, the entire 2.7 million Palestinians across the West Bank were allocated only
103 million m3 from the Western Aquifer.” (Report of the Special Rapporteur on the situation of
human rights in the Palestinian territories occupied since 1967, 30 May 2019, A/HRC/40/73,
para. 52 (footnotes omitted) (https://undocs.org/A/HRC/40/73)).
220
J. ISRAEL’S RACIAL DISCRIMINATION AS TO SOCIAL AND
ECONOMIC RIGHTS: LABOUR, EDUCATION AND HEALTH
4.154. Israel’s discriminatory practices based on racial grounds also
encompass discrimination against Palestinians in respect of an array of economic
and social rights.
1. Labour Rights
4.155. Through the imposition of hundreds of checkpoints and other closures
and restrictions, and the construction of the Wall and its associated regime,
including related restrictions on movement in the “seam zone”, there have been
severe infringements of the rights of Palestinians in the OPT to freely choose and
exercise their employment and to access their workplace.
4.156. Palestinian farmers, in particular, are systematically denied favourable
conditions of work, with access to their farmland blocked, especially, but not only,
in the “seam zone” between the Wall and the Green Line. UNOCHA has found that
more than half of the communities surveyed in the West Bank do not have direct,
regular access to their own land:
“Restrictive gate openings and permit allocations are already having a
negative impact on agricultural practices and on rural livelihoods. Many
farmers cultivate their land infrequently or not at all, or have changed to
lower maintenance and lower yield crops. The longer term consequences for
these communities [are] uncertain, as they lose contact with the land on
which they depend both for their present livelihood and for their future
survival.”764
4.157. The stark disparity in freedom of movement, described above, and the
impact on Palestinians’ labour rights, led the CERD Committee to find that:
“the severe restrictions on the freedom of movement in the Occupied
Palestinian Territories, targeting a particular national or ethnic group,
especially through the wall, checkpoints, restricted roads and permit system,
have created hardship and have had a highly detrimental impact on the
764 UNOCHA, Three Years Later: The Humanitarian Impact of the Wall since the
International Court of Justice Opinion, 9 July 2007 (https://tinyurl.com/4wbvhn4e).
221
enjoyment of human rights by Palestinians, in particular their rights to …
work …”765.
4.158. Within the OPT, the Palestinian workers who are most affected by
Israel’s discriminatory policies are those who work in East Jerusalem, but live
elsewhere in the West Bank. East Jerusalem is an integral part of the West Bank
and was for decades its economic centre. With the tightening of restrictions on
access to East Jerusalem, and notably the construction of the Wall and its associated
regime, Palestinians living in other parts of the West Bank need permits from Israel
to work in East Jerusalem, which in practice are very difficult to obtain766.
4.159. Some sectors have been impacted by these restrictions more severely
than others: many teachers in Palestinian schools in Jerusalem can no longer teach,
and many doctors and nurses working in hospitals in Jerusalem have been forced to
leave their positions, because of difficulties entering the City767. According to
United Nations estimates, 95 % of Palestinians from elsewhere in the West Bank
and 77 % of Palestinians from East Jerusalem itself have had difficulties reaching
their workplaces.768 By 2011, more than half of East Jerusalem households with
West Bank IDs reported that the main earner had been forced to change their place
of work due to the Wall769. This stands in sharp contrast to Israeli settlers living in
the OPT, who can freely commute on a daily basis to work in Jerusalem, along with
other citizens of Israel, or anywhere else in the OPT without any restrictions or
limitations.
765 Committee on the Elimination of Racial Discrimination, Consideration of reports submitted
by States parties under article 9 of the Convention. Concluding Observations (Israel), 14 June 2007,
CERD/C/ISR/CO/13, para. 34 (emphasis added) (https://undocs.org/CERD/C/ISR/CO/13). See also
Report of the Special Rapporteur on the situation of human rights in the Palestinian territories
occupied since 1967, 12 August 2022, A/HRC/49/87, para. 50 (b)
(https://undocs.org/A/HRC/49/87).
766 S. Bashi and E. Diamond, Separating Land, Separating People: Legal Analysis of Access
Restrictions between Gaza and the West Bank, Gisha, 2015, p. 4 (https://tinyurl.com/umshw5dw).
See also B’Tselem, Restrictions on Movement, 11 November 2017 (https://tinyurl.com/57kxw4tt).
767 UNCTAD, The Palestinian economy in East Jerusalem: Enduring annexation, isolation
and disintegration, Geneva, United Nations, 2013, p. 27 (https://tinyurl.com/5n7untvu); Civic
Coalition for Palestinian Rights in Jerusalem, Parallel Report to the Committee on the Elimination
of Racial Discrimination on Israel’s Seventeenth to Nineteenth Periodic Reports, 1 November 2019,
p. 12, para. 35 (https://tinyurl.com/makd8992).
768 UNISPAL, The Separation Wall in Jerusalem: Economic Consequences, 28 February 2007
(https://tinyurl.com/2vshb2s9).
769 UNOCHA, Barrier Update, July 2011, p. 15 (https://tinyurl.com/y92hmb4k).
222
2. Access to Education
4.160. Restrictions on movement which only apply to the Palestinian
population but not to Israeli settlers living illegally in the OPT also have a major
impact on education throughout the OPT. Palestinian students living in East
Jerusalem or elsewhere in the West Bank, especially those living in the vicinity of
settlements, suffer on an almost daily basis from delays at checkpoints. Invasive,
coercive and humiliating body and bag searches are frequent and both, school
children and teachers, are often subjected to harassment by Israeli settlers, notably
in the “H2” area of Hebron and areas adjacent to Israeli settlements.770
4.161. In 2019 the Committee on Economic, Social and Cultural Rights
expressed its concern
“about the restricted access of students to education in the Occupied
Palestinian Territory, in particular:
(a) The shortage of school facilities due to the frequent demolition of school
buildings and the confiscation of school premises or educational materials
by Israeli authorities, as well as difficulties in obtaining construction permits
and securing construction materials, most of which are banned under the
dual-use item regime;
(b) The precarious learning environment in which Palestinian students are
being educated due to the armed or non-armed searches of Palestinian
schools carried out by Israeli security forces;
(c) The frequent incidence of harassment of or threats against students and
teachers by security forces or Israeli settlers at checkpoints or along roads,
which particularly impedes female students from going [to] school …”771.
4.162. Even when Palestinian students can access their schools, they may find
that they have been demolished by Israeli authorities. The Human Rights
Committee expressed concern in its 2022 Concluding Observations “about the State
party’s [i.e., Israel’s] increased and intensified practice of the demolition of …
770 Committee on Economic, Social and Cultural Rights, Concluding observations on the
fourth periodic report of Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 64
(https://undocs.org/E/C.12/ISR/CO/4); see also UNOCHA, The Humanitarian Situation in the H2
Area of Hebron City: Findings of Needs Assessment, April 2019, pp. 7, 10
(https://tinyurl.com/24czapu4).
771 Committee on Economic, Social and Cultural Rights, Concluding observations on the
fourth periodic report of Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 64
(https://undocs.org/E/C.12/ISR/CO/4).
223
infrastructure – such as schools … – in the West Bank, including in Sheikh
Jarrah …”772.
4.163. Israel also discriminates against Palestinians in the OPT when it comes
to access to higher education. Palestinians in the Gaza Strip have been subjected to
particularly onerous restrictions on accessing higher education. In 2019, the
Committee on Economic, Social and Cultural Rights stated that it was “concerned
about the blanket ban on education in the West Bank imposed since 2014 on
students from the Gaza Strip, which has limited their access to higher education in
particular”773.
4.164. Israeli military forces have also interfered with Palestinians’ access to
education by arresting, intimidating and harassing university students and academic
staff. A 2021 United Nations report highlighted the intensified “[p]atterns of arrest
and harassment of Palestinian university students and professors”, especially at
Birzeit University in Ramallah where “more than 74 arrests of students” by Israeli
occupation forces were reported between September 2019 and January 2020
alone774. The Special Rapporteur has stressed that “it is the responsibility of the
occupying power to ensure the right to education is respected”775.
4.165. In contrast, Israeli settlers in the OPT endure none of these restrictions
or harassments. They have free access to education in institutions located in the
settlements, in Jerusalem, or in Israel itself776.
772 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 42 (https://undocs.org/CCPR/C/ISR/CO/5).
773 Committee on Economic, Social and Cultural Rights, Concluding observations on the
fourth periodic report of Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 66
(https://undocs.org/E/C.12/ISR/CO/4).
774 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 29 July 2021, A/HRC/47/57, para. 20
(https://undocs.org/A/HRC/47/57).
775 Ibid.
776 Report of the Secretary-General to the United Nations Human Rights Council, Freedom of
Movement: Human Rights Situation in the Occupied Palestinian Territory, including East
Jerusalem, February 2016, pp. 5-6 (https://tinyurl.com/2um8tc6w); ACRI, One Rule, Two Legal
Systems: Israel’s Regime of Laws in the West Bank, October 2014, pp. 104-114.
(https://tinyurl.com/masa37p3).
224
3. Access to Health
4.166. Israel is obliged under both international humanitarian and human
rights law to ensure that the right to health is protected777. Serious constraints are,
however, placed on the delivery of health services to Palestinians in the OPT which
are not imposed on Israeli settlers living in the same area. These restraints violate
both substantive principles of humanitarian law and human rights law and the
prohibition of racial discrimination.
4.167. In its 2022 report on the OPT, the WHO described the situation as
follows:
“From 2019 to 2021, considerable barriers to the right to health for
Palestinians continued in the West Bank, including east Jerusalem, and the
Gaza Strip. Palestinians’ health is impacted by structural determinants of
health inequities that include ongoing occupation, political divisions,
fragmentation of territory, blockade of the Gaza Strip, physical obstacles to
movement, and implementation of a permit regime. These factors influence
health service availability including through financing limitations; health
access including to outside medical referrals; and health attacks.”778
4.168. According to the WHO, serious inequities include:
– arbitrary delays and denial of permits for Palestinian patients referred to
hospitals in East Jerusalem or Israel;
– arbitrary delays and denial of ambulances and health care staff at checkpoints;
– bureaucratic obstacles placed in the supply of medicines which was “starkly
apparent in the differential access for Palestinians to COVID-19 vaccines”779;
and
– discriminatory planning policies in rural areas comprising 60 per cent of the
West Bank that prevent the development of permanent health care facilities780.
777 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of
12 August 1949, Articles 55 and 56.
778 WHO, Right to Health: Barriers to health and attacks on health care in the occupied
Palestinian territory, 2019 to 2021, Report 2022, 2023, p. 7 (emphasis added)
(https://tinyurl.com/3nh6fmnn).
779 Ibid., p. 21.
780 Ibid., pp. 12-13.
225
4.169. These findings are corroborated by data, which shows a stark disparity
in the respective life expectancies of Palestinians and Israeli settlers in the West
Bank: Israeli settlers have life expectancies of 85.2 years (for women) and 81.6
years (for men); Palestinians’ life expectancies are just 75.6 years (for women) and
73.3 years (for men)781. Additionally, from 2019 to 2021 the WHO reported 563
attacks against health care facilities for Palestinians in the OPT, involving physical
violence, obstruction, arrest of patients, their companions or health care workers782.
4.170. Access to healthcare for Palestinians in the Gaza Strip is even more
restricted as a result of Israel’s blockade and regular military assaults on the
territory. In 2019, the CESCR Committee described:
“the very limited availability of health-care services and the deteriorating
quality of such services in the Gaza Strip due to restrictions on dual-use
items, including essential medical equipment and supplies, and the
escalation of hostilities, which have forced residents to seek medical
treatment in the West Bank or in Israel.”783
4.171. The Committee also expressed its concern:
“about the lengthy and complicated exit-permit system, which has impeded
the ability of residents of the Gaza Strip to access medically recommended
treatment that is not available in Gaza in the West Bank, including East
Jerusalem, in Israel and abroad. Furthermore, it is concerned that in recent
years there has been a significant increase in the number of requests for
permits that have been refused or delayed, with devastating consequences,
including the death of patients waiting for permits and the carrying out of
critical medical procedures on children without their parents at their
side”784.
781 WHO, Right to Health: Barriers to health and attacks on health care in the occupied
Palestinian territory, 2019 to 2021, Report 2022, 2023, p. 20 (https://tinyurl.com/3nh6fmnn).
782 Ibid., pp. 57, 59. The report explains at p. 57 that: “WHO defines an attack on health care
as ‘any act of verbal or physical violence or obstruction or threat of violence that interferes with the
availability, access and delivery of curative and/or preventive health services during emergencies’.”
(footnote omitted).
783 Committee on Economic, Social and Cultural Rights, Concluding observations on the
fourth periodic report of Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 58
(https://undocs.org/E/C.12/ISR/CO/4).
784 Ibid.
226
K. ISRAEL’S DISCRIMINATORY INFLICTION OF
COLLECTIVE PUNISHMENT ON PALESTINIANS
4.172. Collective punishment is prohibited by the Fourth Geneva Convention.
Article 33 provides:
“No protected person may be punished for an offence he or she has not
personally committed. Collective penalties and likewise all measures of
intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals
against protected persons and their property are prohibited.”
4.173. This provision has its origin in the Hague Regulations785 and is
confirmed by Additional Protocol I786. Its content also forms part of customary
international law787.
4.174. Israel engages in various practices in the OPT which flagrantly violate
the prohibition on collective punishment and, as a consequence, also violate
innumerable human rights. These measures serve two related purposes: the
subjugation of the people to stifle opposition to the occupation and quell their
ambition of political independence. In furtherance of these objectives, Israel has
imposed numerous forms of collective punishment on the Palestinian people in the
OPT. As the Special Rapporteur concluded in 2020:
“Collective punishment is an inflamed scar that runs across the entire
53-year-old Israeli occupation of the Palestinian territory. In this time, two
million Palestinians in Gaza have endured a comprehensive air, sea and land
blockade since 2007, several thousand Palestinian homes have been
punitively demolished, extended curfews have paralysed entire towns and
regions, the bodies of dead Palestinians have been withheld from their
families, and critical civilian supplies – including food, water and utilities –
have been denied at various times. Notwithstanding numerous resolutions,
reports and reminders critical of its use, Israel continues to rely upon
collective punishment as a prominent instrument in its coercive toolbox of
population control.”788
785 Article 50.
786 Article 75 (2) (d).
787 See J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law,
Vol. I (Rules), International Committee of the Red Cross, Cambridge University Press, 2005, p. 374
(rule 103).
788 Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian
Territories Occupied Since 1967, 22 December 2020, A/HRC/44/60, para. 24
(https://undocs.org/A/HRC/44/60).
227
1. Demolitions of Palestinian Homes and Other Properties
4.175. One of the most glaring examples of Israel’s infliction of collective
punishment on Palestinians is its practice of punitive home demolitions. In
particular, Israel regularly demolishes houses belonging to the family of a person it
accuses of having committed an offence against an Israeli military order. The
demolished homes included “houses where he or she lived with his or her
immediate family or other relatives and/or where the family home concerned was
rented from a landlord.”789 Such demolitions, which have “a shattering impact upon
the families” living in those homes, take place “even though the families or owners
were not proved to have played a role in the alleged offence, having never been
charged, let alone convicted” by Israel’s military courts790.
4.176. In contrast to the widespread punitive demolitions of Palestinian
homes, “[p]unitive demolitions have never been used against the homes of Israeli
Jewish civilians” who have allegedly committed similar offences791. Since the start
of the occupation, Israel has punitively demolished or sealed thousands of
Palestinian homes in the occupied territories, affecting tens of thousands of
Palestinians, including children.792
4.177. In addition to demolitions on overtly punitive grounds, Israel also
engages in the widespread demolitions of homes, schools and other Palestinian
properties in East Jerusalem and the rest of the West Bank for so-called
“administrative” reasons793. These demolitions also have a collective punitive
character, since they result in entire families being made homeless in circumstances
where they cannot reasonably be considered at fault. The link between such
demolitions and Israel’s implantation of settlers in the OPT is unambiguous; the
demolitions are typically carried out in areas designated for settlement expansion
or construction of related infrastructure, or in areas where settler organizations have
chosen to expand into Palestinian communities, such as Sheikh Jarrah, Silwan and
other neighbourhoods in East Jerusalem. As such, home demolitions are part and
parcel of the overarching attempts to displace Palestinians and replace them with
Israeli settlers. According to UNOCHA, in just the period since 2009, Israel has
789 Ibid., para. 38.
790 Ibid., paras. 38-39.
791 Ibid., para. 51.
792 Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian
Territories Occupied Since 1967, 22 December 2020, A/HRC/44/60, para. 38 (footnote omitted)
(https://undocs.org/A/HRC/44/60). See also UNOCHA database on home demolitions, online:
https://www.ochaopt.org/data/demolition.
793 See paras. 3.101-3.104 and 3.226-3.236 above.
228
demolished over 2,800 Palestinian structures in East Jerusalem and over, 9,500 in
the rest of the West Bank, displacing around 14,000 Palestinians and affecting over
184,000 people794.
4.178. The destruction of homes and other private property by an occupying
Power is prohibited by Article 53 of the Fourth Geneva Convention “except where
such destruction is rendered absolutely necessary by military operations.”795 This
prohibition is a rule of customary international law796; violating it constitutes a
grave breach of the Fourth Geneva Convention797 and a war crime under the Rome
Statute798. Nevertheless, Israel has conducted largescale, wanton destruction of
Palestinian property throughout the OPT. Some of the worst destruction, however,
has been caused by the Israeli military in their assaults on the Gaza Strip.
4.179. In Israel’s 2008-2009 assault on the Gaza Strip over 3,000 homes were
destroyed and more than 11,000 damaged; 215 factories and 700 private businesses
were seriously damaged or destroyed; 15 hospitals and 43 primary health care
centres were destroyed or damaged; 28 government buildings were destroyed; 30
mosques were destroyed and 28 damaged; 10 schools were destroyed and 168
damaged; three universities/colleges were destroyed and 14 damaged799. The
United Nations Fact-Finding Mission on the Gaza Conflict concluded that “the
Israeli armed forces carried out widespread destruction of private residential
houses, water wells and water tanks unlawfully, and wantonly”800, which violated
both international humanitarian law and Articles 11 and 12 of the International
Covenant on Economic, Social and Cultural Rights801.
4.180. In Israel’s 2014 military assault on Gaza, approximately 18,000
housing units were destroyed or severely damaged and some 80,000 homes and
794 UNOCHA, Data on demolition and displacement in the West Bank
(https://tinyurl.com/4w5fysk6).
795 See also, Article 23(g) of Hague Regulations.
796 Rule 50 of the ICRC study on customary international humanitarian law prohibits “[t]he
destruction or seizure of the property of an adversary … unless required by imperative military
necessity” (J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol.
I (Rules), International Committee of the Red Cross, Cambridge University Press, 2005, p. 175).
797 Article 147.
798 Articles 8(2)(iv) and 8(2)(b)(xiii).
799 Independent Fact Finding Committee on Gaza to the League of Arab States, No Safe Place,
Report presented to the League of Arab States, 30 April 2009, p. 3 (https://tinyurl.com/5fsksjrd).
800 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48, para. 1929
(https://undocs.org/A/HRC/12/48).
801 Ibid., para. 1930.
229
properties required rehabilitation802. Both the 2008-2009 and the 2014 assaults
evidenced a clear intent to punish the Palestinian population, including through the
infliction of extensive and painful human and material losses. This was repeated in
May 2021, when in just 11 days, Israel carried out “intense violence with heavy
civilian causalities and property destruction in Gaza.”803 During the course of this
military assault, 1,384 housing units were destroyed and almost 58,000 damaged.
Other civilian infrastructure was widely damaged, including 331 education, 33
healthcare and 290 water, sanitation and hygiene facilities804. Air strikes destroyed
four high-rise buildings in Gaza City in the densely populated Al-Rimal
neighbourhood. These buildings were used for industrial, trade and service facilities
and their destruction resulted in massive displacement and job losses. One of the
buildings housed the offices of international media organizations. Israel claimed
that the buildings were used for military purposes but provided no evidence to
support this claim and an investigation by Human Rights Watch found no such
evidence805. Likewise, in May 2023, Israel’s most recent (to date) assault on Gaza
caused damage to 2,943 housing units and destroyed 103 other properties. Twentysix
schools were damaged as well as four health care centres806.
4.181. There is thus a longstanding pattern and practice of Israeli destruction
of Palestinian property during its military assaults on Gaza and in the West Bank,
including East Jerusalem, in clear violation of international law, committing grave
breaches of the Fourth Geneva Convention and egregious human rights violations.
In 2009, a United Nations Fact-Finding Mission made the following observations
on the strategy and tactics employed by Israel during its 2008-2009 assault on Gaza:
“The Mission recalls in this regard its analysis of the Israeli objectives and
strategies during the military operations in chapter XVI. There the Mission
referred to statements made by Deputy Prime Minister Eli Yishai on
6 January 2009: ‘It [should be] possible to destroy Gaza, so they will
understand not to mess with us’. He added that ‘it is a great opportunity to
802 Human Rights Council, Report of the detailed findings of the independent commission of
inquiry established pursuant to Human Rights Council Resolution S-21/1, 24 June 2015,
A/HRC/29/CRP.4, para. 576 (https://undocs.org/A/HRC/29/CRP.4).
803 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2021, A/76/433, para. 38 (https://undocs.org/A/76/433).
804 Report of the United Nations High Commissioner for Human Rights, “Implementation of
Human Rights Council Resolution S-9/1 and S-12/1”, 28 April 2022, A/HRC/49/83, para. 49
(https://undocs.org/A/HRC/49/83).
805 Human Rights Watch, Gaza: Israel’s May Airstrikes on High Rises, 23 August 2021
(https://tinyurl.com/2p9nsrea).
806 UNOCHA, Humanitarian Situation in Gaza, Flash Update #5, 15 May 2023
(https://tinyurl.com/2p9yzs7p).
230
demolish thousands of houses of all the terrorists, so they will think twice
before they launch rockets’. The Mission also referred to the so-called
Dahiya doctrine, which calls for widespread destruction as a means of
deterrence and seems to have been put into practice.”807
“The tactics used by the Israeli armed forces in the Gaza offensive are
consistent with previous practices, most recently during the Lebanon war in
2006. A concept known as the Dahiya doctrine emerged then, involving the
application of disproportionate force and the causing of great damage and
destruction to civilian property and infrastructure, and suffering to civilian
populations. The Mission concludes from a review of the facts on the ground
that it witnessed for itself that what was prescribed as the best strategy
appears to have been precisely what was put into practice.”808
4.182. In June 2023, the Secretary-General presented a report to the Security
Council which stated that he “remain[ed] deeply concerned by the continued
demolitions and seizures of Palestinian-owned structures”, adding that:
“Demolitions and evictions, including internationally funded humanitarian
projects as well as structures related to income-generation and the provision
of essential services, entail numerous human rights violations and raise
concerns about the risk of the forcible transfer. I again call upon the
Government of Israel to immediately end the demolition of Palestinianowned
property and prevent the possible displacement and forced eviction
of Palestinians, in line with its international obligations”809.
4.183. The General Assembly has also condemned Israel’s ongoing
demolition of Palestinian homes in the OPT810, especially “if carried out as an act
of collective punishment”811. Specifically, it expressed “grave concern” about
“the ongoing demolition by Israel, the occupying Power, of Palestinian
homes, as well as of structures, including schools, provided as international
humanitarian aid, in particular in and around Occupied East Jerusalem,
including if carried out as an act of collective punishment in violation of
807 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48, para. 1304
(https://undocs.org/A/HRC/12/48).
808 Ibid., para. 62.
809 Report of the Secretary-General on the implementation of Security Council resolution 2334
(2016), 21 June 2023, S/2023/458, para. 64 (https://undocs.org/S/2023/458).
810 General Assembly, Resolution 77/126, 12 December 2022.
811 General Assembly, Resolution 77/247, 30 December 2022.
231
international humanitarian law, which has escalated at unprecedented
rates”812.
2. Settler Violence against the Palestinian Population
4.184. Israeli settlers also engage in the destruction of Palestinian homes,
vehicles, trees, crops and livestock in East Jerusalem and the rest of the West Bank.
These acts of destruction are recurrent elements of an ongoing campaign by Israeli
settlers to harass, intimidate, provoke and terrorize Palestinian civilians and part of
the broader coercive environment created and pursued by Israel to forcibly displace
the Palestinian people from their native land.
4.185. Settler attacks against Palestinians and their property in the OPT is
tolerated, actively encouraged, and supported by the Israeli authorities, including
by providing military protection to the settlers and failing to hold them accountable.
The violence serves a calculated purpose from the perspective of the settlers who
inflict it, and the Israeli authorities who acquiesce in its commission or contribute
to it: to intimidate and subjugate the local Palestinian population, to encourage or
force their displacement, and to thereby facilitate the expansion of the settlements.
As the Independent Commission of Inquiry found in 2013, “the motivation behind
this violence and the intimidation against the Palestinians and their properties is to
drive the local populations away from their lands and allow the settlements to
expand.”813 In the years that followed this report, some of the most harrowing
examples of settler terrorism took place. These include the abduction, burning and
killing of Mohammed Abu Khdeir814, a 16-year-old Palestinian boy, in Jerusalem,
on 2 July 2014, and the attack and arson of the Dawabsheh family home in Duma
village, Nablus, burning and killing 18-month-old Ali Dawabsheh815 and his
812 Ibid., preamble.
813 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, para. 107 (https://undocs.org/A/HRC/22/63).
814 Security Council Press Statement on Killing of Palestinian Teenager, 2 July 2014,
SC/11462 (https://tinyurl.com/2hwjz7b9).
815 UNOCHA, Protection of Civilians, Reporting period: 28 July–3 August 2015
(https://tinyurl.com/mry9mmpu).
232
parents816, and critically injuring his four-year-old sibling817, on 31 July 2015.
Following this attack, the Secretary-General stated that “(c)ontinued failures to
effectively address impunity for repeated acts of settler violence have led to another
horrific incident involving the death of an innocent life. This must end”818.
4.186. The Special Rapporteur confirmed in 2021 that settler violence “is
predominantly ideologically motivated and designed to deny access of Palestinians
to their land and to terrorize them”819. This violence “has an inescapable impact on
Palestinians’ lives, … creating a lingering sense of terror and intimidation.”820
4.187. All United Nations bodies that have examined the issue concur that
Israel is responsible for the destruction of Palestinian homes and other properties
caused by its settlers in the OPT and that there is a persistent failure to hold Israeli
settlers accountable for their crimes. In its Concluding Observations in 2012, the
CERD Committee cited evidence that 90 % of Israeli police investigations into
settler-related violence between 2005 and 2010 were closed without prosecution821.
In 2013, the Independent International Commission of Inquiry created to
investigate Israeli settlements in the OPT likewise determined that: “the identities
of settlers who are responsible for violence and intimidation are known to the Israeli
authorities, yet these acts continue with impunity”822. The Commission of Inquiry
explained:
“There was consistency in testimonies with regard to the following facts:
attacks and intimidation regularly take place during daylight hours; the
identity of perpetrators are well known, or perpetrators could easily be
identified; the frequent presence of police and army at the scene; the
involvement and presence of settlement security officers; the frequent
816 The parents died several days later of the wounds they sustained during the attack. See
UNOCHA, Protection of Civilians, Reporting period: 4–10 August 2015
(https://tinyurl.com/r78udru3); Protection of Civilians, Reporting period: 1–7 September 2015
(https://tinyurl.com/53ccsmfn).
817 UNOCHA, Protection of Civilians, Reporting period: 28 July–3 August 2015
(https://tinyurl.com/mry9mmpu).
818 Ibid.
819 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2021, A/76/433, para. 16 (https://undocs.org/A/76/433).
820 Ibid., para. 19.
821 Committee on the Elimination of Racial Discrimination, Consideration of reports submitted
by States parties under article 9 of the Convention. Concluding Observations (Israel), 3 April 2012,
CERD/C/ISR/CO/14-16, para. 28 (https://undocs.org/CERD/C/ISR/CO/14-16).
822 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, para. 107 (https://undocs.org/A/HRC/22/63).
233
existence of video and photographic footage of the incidents; and the lack
of accountability for the violence.”823
4.188. The High Commissioner for Human Rights made similar findings in
2020, observing that: “Daily acts of violence and harassment of Palestinians by
settlers, most often carried out with impunity … compound a coercive
environment”824. The High Commissioner’s report found that:
“[i]ncidents of settler violence continued at a high rate and the severity of
attacks and injuries to Palestinians increased, without any decisive action
by Israeli authorities to protect the Palestinian population in accordance
with their obligations as the occupying Power … Settler violence continued
to adversely affect Palestinian society, violating a range of rights.”825
4.189. In 2022, another Independent Commission of Inquiry found that “the
civilian and military security forces of Israel rarely protect Palestinians from settler
violence. They have been documented standing by and observing violent attacks by
settlers and, on occasion, collaborating with such attacks. Judicial authorities rarely
hold settlers accountable.”826 The Commission:
“emphasize[d] that Israel as the occupying Power bears responsibility for
protecting Palestinians against settler attacks. Such attacks violate the right
of Palestinians to life, liberty and security of the person.”827
And it found that:
“[s]ettler violence is a key manifestation of the coercive environment, with
incidents increasing in number and severity over the years. From January to
July 2022, there were 398 settler attacks in the West Bank, with 84 attacks
resulting in casualties. By comparison, there were 496 attacks during the
whole of 2021 and 358 attacks in 2020. The severity of the attacks has also
increased; recently there have been verified reports of settlers carrying out
823 Ibid., para. 50.
824 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
30 January 2020, A/HRC/43/67, para. 49 (https://undocs.org/A/HRC/43/67).
825 Report of the United Nations High Commissioner for Human Rights, “Israeli settlements
in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan”,
30 January 2020, A/HRC/43/67, paras. 66-67 (https://undocs.org/A/HRC/43/67).
826 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 66
(https://undocs.org/A/77/328).
827 Ibid., para. 64.
234
attacks while Israeli security forces were nearby, and of Israeli security
forces attacking Palestinians alongside settlers.”828
4.190. The problem continues to grow worse. In its Concluding Observations
of 2022, the Human Rights Committee confirmed that there had been “a significant
increase in the number and severity of incidents of settler violence”829. The Special
Rapporteur has confirmed that “[i]ncreasingly egregious cases have been
documented in 2021, as well as cases involving active support and collaboration
between settlers and Israeli security forces”830, stressing that the “atmosphere of
impunity surrounding attacks by settlers is deeply concerning and sends an
affirmation to settlers that there will be no consequences for their illegal and
egregious acts against Palestinians.”831
4.191. In one of the more harrowing recent incidents, on 26 February 2023,
hundreds of Israeli settlers attacked Palestinians in the village of Huwwara and in
the three nearby villages and set fire to at least 35 homes, caused damage to another
40 homes, and torched dozens of vehicles, terrorizing the population and leaving
behind a trail of destruction, with one Palestinian killed and hundreds others
wounded, all committed under the watch and with the accompaniment of Israeli
occupation forces832. Over 300 attacks of Israeli settlers were reported by
Palestinians throughout the West Bank by the next day. A similar scene was
repeated in the village of Turmusayya on 21 June 2023, when hundreds of Israeli
settlers descended upon the village, attacking Palestinian civilians and once again
perpetrating arson, setting dozens of homes and vehicles ablaze. Israeli forces shot
and killed one Palestinian man and injured 41 Palestinians, including two
children833. On the same day, the Secretary-General reported to the Security
Council that he was
“particularly disturbed by the high levels of settler-related violence,
including reports of armed settlers carrying out attacks inside Palestinian
communities, sometimes in the proximity to or with the support of Israeli
security forces. Reports of Israeli security forces standing by and not
828 Ibid. (footnotes omitted).
829 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 24 (https://undocs.org/CCPR/C/ISR/CO/5).
830 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 22 October 2021, A/76/433, para. 16 (https://undocs.org/A/76/433).
831 Ibid., para. 19.
832 “Israel’s military called the settler attack on this Palestinian town a ‘pogrom’. Videos show
soldiers did little to stop it”, CNN, 15 June 2023 (https://tinyurl.com/4k3n2npc).
833 UNOCHA, “Protection of Civilians Report | 13 June–4 July 2023”, 8 July 2023
(https://tinyurl.com/2w34w3b6).
235
preventing settler attacks against Palestinians or failing to intervene when
violence begins are deeply concerning. Settlers are rarely held accountable
for these attacks, increasing the level of threat to Palestinians and their
property. Israel, as the occupying Power, has an obligation to protect
Palestinians and their property in the Occupied Palestinian Territory and
ensure prompt, independent, impartial and transparent investigations into all
acts of violence.”834
3. The Blockade of Gaza
4.192. The most far-reaching collective punishment inflicted on Palestinian
civilians occurs in the Gaza Strip where a blockade, imposed on the entire
population, is now in its sixteenth year. As the Special Rapporteur explained in
September 2022, Israel has brought about “[t]he transformation of the Gaza Strip
into a heavily populated, impoverished enclave controlled by Israel through a
suffocating sea, land and air blockade”835. Figure 4.2 at p. 237, drawn from
UNOCHA maps and data, depicts how Israel tightly controls access of people and
goods to and from the Gaza Strip.
4.193. Several provisions of the Fourth Geneva Convention are applicable:
Article 50 (duty to facilitate the working of care and education institutions), Article
55 (duty to ensure food and medical supplies), and Article 56 (duty to ensure and
maintain hospitals and medical services)836. The obligation contained in Article 55
of the Fourth Geneva Convention is particularly relevant:
“The Rule that the Occupying Power is responsible for the provision of
supplies for the population places that Power under a definite obligation to
maintain at a reasonable level the material conditions under which the
population of the occupied territory lives.”837
4.194. The United Nations Fact-Finding Mission on the Gaza Conflict of
2008-2009 found that “Israel continues to be duty-bound under the Fourth Geneva
834 Report of the Secretary-General on the implementation of Security Council resolution 2334
(2016), 21 June 2023, S/2023/458, para. 69 (https://undocs.org/S/2023/458).
835 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 21 September 2022, A/77/356, para. 46
(https://undocs.org/A/77/356).
836 See Report of the United Nations Fact-Finding Mission on the Gaza Conflict, “Human
Rights in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48,
para. 1301 (https://undocs.org/A/HRC/12/48).
837 J. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Geneva, ICRC, 1958, p. 310.
236
Convention … to meet the humanitarian needs of the population of the Gaza Strip
without qualification”838. It concluded that, by its blockade, Israel had “violated its
duty to respect the right of the Gaza population to an adequate standard of living,
including access to adequate food, water and housing.”839 It added:
“Finally, the Mission considered whether the series of acts that deprive
Palestinians in the Gaza Strip of their means of sustenance, employment,
housing and water, that deny their freedom of movement and their right to
leave their own country, that limit their access to courts of law and effective
remedies could amount to persecution, a crime against humanity. From the
facts available to it, the Mission is of the view that some of the actions of
the Government of Israel might justify a competent court finding that crimes
against humanity have been committed.”840
4.195. In January 2009, the Security Council stressed the need “to ensure
sustained and regular flow of goods and people through the Gaza crossings” and
called for:
“the unimpeded provision and distribution throughout Gaza of humanitarian
assistance, including of food, fuel and medical treatment”841.
4.196. This call, unheeded by Israel, was reiterated by Secretary-General Ban
Ki-Moon in 2016 when he declared that the Palestinian people in Gaza
“are enduring enormously difficult living conditions. The closure of Gaza
suffocates its people, stifles its economy and impedes reconstruction efforts.
It is a collective punishment for which there must be accountability …
Today, some 70 per cent of the population in need of humanitarian
assistance, and over half of Gaza’s youth have little or no job prospects or
horizons of hope. The situation cannot continue.”842
838 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48, paras. 28,
326 (https://undocs.org/A/HRC/12/48).
839 Ibid., para. 73.
840 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48, para. 75
(https://undocs.org/A/HRC/12/48).
841 Security Council, Resolution 1860 (2009), 8 January 2009, para. 2.
842 Secretary-General, Secretary-General’s Remarks at Press Encounter, 28 June 2016
(emphasis added) (https://tinyurl.com/mryjv2n6).
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1.5 Nautical Miles
No-Fishing Zone
1 Nautical Mile
Closed since June 2007
(conveyor belt closed
since March 2011)
Karni Crossing
(Al Montar)
'Arab Maslakh
Beit Lahiya
Closed since
September 2008
(exceptionally opened
from March to April 2011)
Sufa
Closed since January 2010
Nahal Oz / Fuel Pipeline
Erez Crossing
(Beit Hanoun)
Ash Sheikh
Radwan
Lagoon
UNSCO Compound
UNRWA
Compound
UNDP Compound
Blue Gate
(Kerem
Shalom)
6 Nautical Miles
Fishing Limit
Kerem Shalom
(Karm Abu Salem)
Rafah
(Al 'Awda)
Naval barrier
(400 m)
15 Nautical Miles
Fishing Limit
Al Karama
¹º»
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Salah
Ad Din
Gate
I S R A E L
EGYPT
Rafah
Middle
Area
Gaza
Gaza
Rafah
Jabalia
Gaza City
Khan Yunis
Beit Hanoun
Beit Lahiya
Deir Al Balah
Al Quds Open University
(Khan Yunis Campus)
Al Quds Open University
(Rafah Campus)
Al Quds Open University
(North Campus)
Al Aqsa
University
Al Quds
Open University
(North Campus)
Gaza
University
Al Mawasi
(Khan Yunis)
Khuza'a
Al Bayuk
As Sureij
Al Qarara
Umm Kameil
Az Zawayda
Al Musaddar
Al Fukhkhari
Umm al Kilab
Juhor Ad Dik
Qa' al Qurein
Wadi as Salqa
Shokat As Sufi
Qa' al Kharaba
Qizan an Najjar
Madinat
al 'Awda
Al Mawasi
(Rafah)
'Abasan
al Kabira
Deir al Balah
Camp
'Izbat Beit
Hanoun
Al Qarya
As Suwaydiya
(Swedish Village)
Al Mughraqa
(Abu Middein)
'Abasan al Jadida
(as Saghira)
Al Qaraya al Badawiya
(Umm An-Naser)
Rafah Camp
Bani Suheila
Jabalia Camp
Tal As Sultan
Al Bureij Camp
Khan Yunis
Camp
Al Maghazi Camp
Ash Shati'
Camp
An Nuseirat
Camp
Rafah
(Egypt)
Wadi Gaza
Wadi Gaza
Gaza International Airport
(destroyed/non-operational
since 2002)
Sufa Landfill
Gaza
Landfill
Palestine
Stadium
Islamic
University
Al Azhar
University
Karni
Industrial
Zone
Beit Hanoun
Industrial
Zone
Nitzarim
(Ash Shohada)
Junction
Al Aqsa University
(Khan Yunis Campus)
al Montar
Hill
Gaza Wastewater
Treatment Plant
Rafah
Wastewater
Treatment
Plant
Emergency
Sewage
Lagoons
Under Construction
Wastewater
Treatment Plant
Al 'Umari
Mosque
Beit Lahiya
Wastewater
Treatment Plant
NGST
Jakar Road
Under Construction
Wastewater
Treatment Plant
Al Bassa
Desalination
Plant
UNICEF
Desalination
Plant
Jakar Road
M e d i t e r r a n e a n S e a
B?25
B?232
B?34
B?4
B?232
B?232
B?4
B?232
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Gaza
Power
Plant
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Netivot
Ge'a
Ein Ha Bsor
Shuva
Beit Shikma
Magen
Ohad
Re'im
Nir Oz
Zikim
Mefalsim
Patish
Bitkha
Tkuma
Ma'agalim
Zimrat
Kfar Maimon
Alumim
Kfar Aza
Yesha
Mivtakhim
Be'eri
Yad Mordekhai
Netiv Ha Asara
Sde
Nitsan
Shokeda
Nirim
Kisufim
Ami'oz
Beit Ha Gadi
Karmiya
Sa'ad
Tsokhar
Talmei
Eliyahu
Nir Yitzkhak
Tushiya
Ein Ha Shlosha
Ma'on Plants
¹º»
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Gaza
Wharf
Mawasi Rafah
Wharf
Mawasi
Khan Yunis
Wharf
Deir Al Balah
Wharf
Bait Hanoun
Hospital
Al Andonise
Hospital
Al-Shifa
Hospital
Ad Durra
Psychiatric
Hospital
Al Aqsa
Hospital
Naser
Hospital
European
Hospital
Abu Yousef
an-Najjar
Hospital
Al Hilal UAE
Hospital
Kuwaiti
Specialized
Hospital
Dar as
Salam
Hospital
Al Amal
Hospital
Al Quds
Hospital
Al Wafa'a
Hospital
Al Karameh
Hospital
Algerian
Hospital
Jordanian
Hospital
Balsam
Hospital
Al Naser
Pediatric
Hospital
Al Awda
Hospital
An Naser
Hatabiyya
Ash Shaima'a
Abu Ghazala
Zemmo
Al Farata Al Masreen
Az Zaitoun
Al Balad
Al Amal
Abu Rahma
As Soltan
Abdul
Hameed
As Sekka
Ijdeedeh
Ash Sheikh
'Ijleen
Tal El
Hawa
As Sabra
Old
City
Ash Sheikh Radwan
At Turukman
Northern Remal
Southern Remal
Ad Darraj
Ash Shuja'iyeh
Ijdeedeh
Az Zaitoun
At Tuffah
Jabalya
El Balad
Mashroo'
Beit Lahiya
Al Share'
El Am
Alkhazan
Aslan
Al Kur'a
El Khamsa
As Salateen Al Jam'ia
Al Attarta
An Nazaz
Al Banat
Al Karameh
A Louh
Abu Al 'Ajeen
Sawarkeh Sanajrah
Ja'afarawi
Ash Shortah
Abu Hdaf
Abu Mgheiseb
Smeiri
Abu Thaher
Ar Radwan
An Nai'm As Salam
Al Worood
Al Wasta
As Sahabeh
Ar Rabei'i
Al Farra
Abu
al A'awar
Azata
Najjar
Ishnino
Irjeileh
Radwan
Suboh Abu Ali
Rook
Abu Reeda
Al wodd
Al Iman
At Taqwa
Abu
Bader
Ar Rahmah
Al Qadisiah
Al Wadi
Az Zahra'a
Al Huda
As Saqa
Al Ansar
Al Mahatta
Ar Rasheed
As Samah
As Sahabah
As Salah
Al Awda
As Siddeq
Ansar Al Farouq
Al Amal
Salah Ad Din
As Safa
Ad Damitha'a
As Sidra
Al Basateen
Yafa
Al Bruk
Al Bassa
As Salam
Al Hikr
Al Balad
Ar Rasheed
Ar Rahmeh
Tal
Az-Zuhour
Al Manarah
Al Birkeh
Al Jala'a
An Naser As Sater
Al Mahattah
Al Amal
At Tahrir
Al Kateebeh
Qizan Abu
Rashwan
Batn
Qizan
An Najjar
City Centre
Ma'in
Ash Sheikh
Jourat
Al Loot
As Salam
As Salam
Al Muharrarat
Rafah
Al Gharbieh
Tabbet
Zare'i
Khirbet
Al 'Adas
Tal As-
Sultan
Msabbeh
An Naser
Al Jneineh
Al Idari
Al Hashash
Ash
Shabbourah
Az Zohour
At Turukman
Ijdeedeh
Mashroo Amer
wal Isra'a
Ghobon
Madinat Ash
Sheikh Zayed
Al Manshieh
Fad'os
Al Karameh
An Nahdah
Ibad
Ar-Rahman
As-Salam
Ar Rawdah An Nur
An Nuzhah
Tal Az-Za'atar
Az Zohour
Izbat
Abed
Rabbou
As Siafa
Al Hudoud Al Masriyyah
Salah Ad Deen
Ar Rasheed Ar Rasheed Ar Rasheed
Al Rasheed Al Rasheed
Salah Ad Deen
Salah Ad Deen
Salah Ad Deen Salah Ad Deen
Salah Ad Deen
Salah Ad Deen
Yaser Arafat
Yaser Arafat
Al Karama
Karni - Netzarim
Al Fallouja
Omar Ben Al Khattab
Abu Baker As Siddeeq
Salah Khalaf
Salah Khalaf
Darb Al Masri
Al Bahar Al Bahar
Baghdad
As Saftawi
Al Wihda
Khalil Al Wazeer
Al Quds Al Quds
Saleh Dardona
Al Montar
Abdul Kareem Al 'Aklook
R1
Al 'Orooba
Omar Ben Al Khattab
Taha Hussien
Ahmad Yaseen
An Naser
As Sultan Al Othmani
Al Qahera
Al Awda
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As Sekka
Rd No. 8
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Gush Qateef
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Gush Qateef
As Sekka
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Morag An Naser
Ketzofim
Ketzofim
Ketzofim
Ketzofim
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Karni - Netzarim
As Salam
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Palestinian
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checkpoint
(passengers)
De facto
authorities
checkpoint
(passengers)
LEGEND
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CLOSED AND ACCESS RESTRICTED AREAS
FENCES AND BARRIERS
ROADS
LOCATIONS
ISRAEL
Road
oPt
EGYPT
Road
MUNICIPAL POPULATION POWER SUPPLY
¹¹º»
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Mediterranean Sea
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60-Km-long Israeli fence
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12.6-Km-long Egyptian fence
Closed gradually
between 2007 and 2011
Closed since 2010
Closed since 2008
(except Mar-Apr 2011)
Palestinian
Authority
checkpoint
(passengers)
De facto
authorities
checkpoint
(passengers)
15 Nautical miles
6 Nautical miles
Access prohibited by Israel
Dead Sea
WEST
BANK
ISRAEL
EGYPT
JORDAN
0 10 20 4K0m
OCCUPIED PALESTINIAN TERRITORY
Med iterranean Sea
GAZA
STRIP
20 Nautical miles
No-Fishing Zone
1.5 Nautical Miles
No-Fishing Zone
1 Nautical Mile
Electric Feeder (Israel)
Electric Feeder (Power Plant)
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EGYPT
Rafah
Gaza City
Deir al Balah
ISRAEL
Salah
Ad Din
Gate
Khan Yunis
Rafah
Passenger
Crossing
Kerem Shalom
Commercial
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POLLUTION LEVELS OF WASTEWATER
FLOWS INTO THE SEA
MG/LITRE OF BOD*
* Biological Oxygen Demand (BOD) is an indicator of water pollution levels, which are linked to the effectiveness of
wastewater treatment.
265
232
2019 ~113M
148
International Standard
60 mg/lt
2020 ~112M
112
2018 ~107M
2017 ~101M
Source: WASH Cluster/CMWU
LITRES/DAY WASTE WATER INTO THE SEA
Mediterranean Sea
Grizim
(Al Bahar Line)
Hemda
(Al Quba Line)
Iron
(Al Shaff Line)
Romah
(Middle Line)
Kela'
Shiryon
(Khan Yunis Line)
Surya
(Rafah Line)
Meiron
(Beit Lahia line)
Eival
(Jabalia Line)
Nekarot
(Baghdad Line)
MW 12
MW 12
MW 12
MW 12
MW 12
MW 12
MW 12
MW 12
MW
12
Gaza
Power
Plant
Gaza
Power
Plant
Jan-Jun
Data source: Electricity Distribution Company of Gaza | GEDCO Data source: J9
J8
12 MW
12 MW
7 MW
J4
7 MW
J4
7 MW
J5
12 MW
J6
12 MW
J1 12 MW
J7
6 MW
J4 12 MW
J3 12 MW
J2 3 MW
J10
7 MW
J10
MW 12
Israeli
Lines
Gaza
Power
Plant
ELECTRICITY DEMAND/ SUPPLY/DEFICI T
IN MEGAWATTS (MW)
2019
449
429
407
440
263
MW
2020
242
MW
2021
220
MW
66 67 71
120 120 116 MW
MW
MW
MW
MW
MW
186 MW
187 MW 187 MW
2022
Jan-Jun
245
MW
75
120
MW
MW
195 MW
EGYPT
ISRAEL
Salah
Ad Din
Gate
Erez
Passenger
Crossing
Rafah
Passenger
Crossing
Kerem Shalom
Commercial
Crossing
(Al Montar)
Nahal Oz
/Fuel Pipeline
Sufa
Average hours of electricity per day
e r e e
Gaza
Gaza North
Khan Younis
Rafah
Deir al Balah
Salah Ad Din
gate ¹¹º»
¹
¹¹º»
Erez
Rafah Kerem
Shalom
Sufa
Karni
Nahal Oz
431K
731K
311K
426K
268K
220K
211K
358K
152K
209K
131K
373K
159K
217K
137K
Females Males
1.06 Million
(49.3%)
1.11 Million
(50.7%)
Data source: PCBS 2022
2.17
Million
KEY FACTS
365 km2
2,166,269
Source: PCBS 2022
1,476,706
Source: UNRWA as of 31 January 2022
46.6%
Source: PCBS 2022
Land Area
Population
Registered Palestine Refugees
Unemployment
GAZA STRIP ACCESS AND MOVEMENT - JULY 2022
Q1 2022
PALESTINIAN COMMUNITIES
EXITS AND ENTRIES OF PEOPLE THROUGH RAFAH CROSSING
(MONTHLY AVERAGES)
EXIT OF PEOPLE THROUGH EREZ/ BEIT HANOUN CROSSING
MONTHLY AVERAGES
TRUCKLOADS ENTERING GAZA
(MONTHLY AVERAGES)
TRUCKLOADS EXITING GAZA
(MONTHLY AVERAGES)
2000
2004
2005
2006
2007
1st Half
2007
2nd Half
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
0.5+
Million
March 2006 - Israel stops allowing
Palestinian workers into Israel
June 2007 - Gaza blockade
July-August escalation of hostilities
March 2006 - Israel stops allowing
Palestinian workers into Israel
March 2006 - Israel stops allowing
Palestinian workers into Israel
777
417
961
17 3 2 18 23 21 15 19
113
178 218 217 262 265
379
2005
2006
2007
1st Half
2007
2nd Half
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
777
2022
2021
2006
2007
1st Half
2007
2nd Half
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
June 2007 - Gaza blockade
June 2007 - Gaza blockade
9.3K
6.3K
11.2K
2.6K 2.2K 2.6K
3.3K
4.1K
4.8K
5.7K
4.3K
7.9K
10.0K 9.9K
8.8K 8.5K 8.8K
7.9K
2005
2006
2007
1st Half
2007
2nd Half
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
8.24K
2022
2021
25.8K
15.7K
0.4K 1.8K
5.6K
13.9K
21.2K
35.0K
25.2K
8.1K
2.4K 3.5K 2.9K
8.2K
12.1K
4.3K
2022
20.6K
15.1K
Figures include transfers to the West Bank
43.4K
31.5K
13.5K 12.6K
1.9K 2.2K 2.4K 3.3K 4.4K 4.9K 5.8K 6.0K
15.3K 13.2K
6.9K
9.5K
16.0K
5.0K
7.5K
2022
Jan-Jun Jan-Jun
31.4K
Jan-Jun Jan-Jun
March 2006 - Israel stops allowing
Palestinian workers into Israel
July-August escalation of hostilities
July-August escalation of hostilities
June 2007 - Gaza blockade July-August escalation of hostilities
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EGYPT
Rafah
Gaza City
Beit
Hanoun
Deir al Balah
ISRAEL
Khan Yunis
Mediterranean Sea
Municipality Population
1
2
3
c
4
5
6
7
8
9
q
w
e
r
t
y
u
i
o
p
a
ds
f
g
h
j
v
x
k
l
;
z
Abasan al Saghira'
Abasan al Kabira'
Al Mughraqa (Abu Middein)
Bani Suheila
Al-Nnaser (Al Bayuk)
Ash Shati' Camp
Beit Hanun
Beit Lahiya
Al Bureij
Al Bureij Camp
Deir al Balah
Deir al Balah Camp
Al Fukhkhari
Gaza
Jabalya
Jabalya Camp
Juhor ad Dik
Khan Yunis
Khan Yunis Camp
Khuza'a
Al Maghazi
Al Maghazi Camp
Al Musaddar
An Nuseirat
An Nuseirat Camp
Al Qarara
Rafah
Rafah Camp
Um Al-NASER
Wadi as Salqa
Madinat Ezahra
Az Zawayda
10.7K
30.7K
12.9K
47.5K
10.3K
45.8K
60.6K
104.3K
17.6K
31.9K
85.5K
8.5K
7.9K
710.1K
214.7K
61.5K
5.1K
234.7K
47.1K
13.0K
11.0K
20.7K
3.0K
62.5K
36.2K
33.3K
196.9K
41.9K
18.8K
5.5K
7.6K
6.0K
27.2K
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
Data source: PCBS projection 2022 33
MUNICIPAL POPULATION
2,865 - 25,000
25,001 - 60,000
60,001 - 100,000
100,001 - 250,000
250,001 - 650,000
EREZ (BEIT HANOUN)
For more information visit: www.ochaopt.org/data/crossings
KEREM SHALOM (KARM ABU SALEM)
For more information visit: www.ochaopt.org/data/crossings
RAFAH (AL 'AWDA)
For more information visit: www.ochaopt.org/data/crossings
Fence
Fence
Underground
Concrete
Barrier
Observation Tower
100-300 metres
Access permitted on
foot and for farmers only
0-100 metres
No-go and high-risk
Zone
ACCESS PROHIBITED
ISRAEL'S PERIMETER FENCE AND ACCESS RESTRICTED AREA
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237
239
4.197. The devastating consequences of the Israeli blockade on the Gaza Strip
have indeed been dire. As reported in 2019 by the Independent International
Commission of Inquiry:
“The blockade resulted in Gaza falling into a deep recession. By 2015,
according to the World Bank, it had shaved 50 per cent of Gaza’s GDP.
.......................................................................................................................
Gaza, historically a place of trade and commerce, was reduced to a
humanitarian case of profound aid-dependency. Humanitarian relief and the
rebuilding of assets destroyed by Israeli military operations now dominate
Gaza’s economy. Today, the real income of an average Gazan is about
30 per cent less than in 1999. According to the World Bank, Gaza’s
economy will never improve without easing the restrictions on movement
and access for goods and people.”843
4.198. In 2022, the Special Rapporteur described how Israel’s blockade of
Gaza had
“barricaded the 2 million Palestinians into what former British Prime
Minister David Cameron called ‘an open-air prison’, a method of population
control unique in the modern world”.
The Report explained that Israel has brought about
“the indefinite warehousing of an unwanted population of 2 million
Palestinians, whom it has confined to a narrow strip of land through its
comprehensive 15-year-old air, land and sea blockade”.844
4.199. The devastating consequences that the blockade of Gaza has had on the
Palestinians who live there were documented by the World Bank, among others, as
recounted by the Special Rapporteur:
“The World Bank reported in 2021 that Gaza had undergone a multi-decade
process of de-development and deindustrialization, resulting in a 45 per cent
unemployment rate and a 60 per cent poverty rate, with 80 per cent of the
843 Human Rights Council, Report of the detailed findings of the independent international
Commission of inquiry on the protests in the Occupied Palestinian Territory, 18 March 2019,
A/HRC/40/CRP.2, paras. 152 and 154 (footnotes omitted) (https://undocs.org/A/HRC/40/CRP.2).
844 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 45
(https://undocs.org/A/HRC/49/87).
240
population dependent on some form of international assistance, in
significant part because of the hermetic sealing of the access of Gaza to the
outside world. The coastal aquifer, the sole source of natural drinking water
in Gaza, has become polluted and unfit for human consumption because of
contamination by seawater and sewage, substantially driving up water costs
for an already destitute population. Gaza is heavily dependent on external
sources – Israel and Egypt – for power, and Palestinians live with rolling
power blackouts of between 12 and 20 hours daily, severely impairing daily
living and the economy. The entry and export of goods is strictly controlled
by Israel, which has throttled the local economy. The health-care system in
Gaza is flat on its back, with serious shortages of health-care professionals,
inadequate treatment equipment and low supplies of drugs and medicines.
Palestinians in Gaza can rarely travel outside of Gaza, which is a denial of
their fundamental right to freedom of movement. More acutely, they have
endured four highly asymmetrical wars with Israel over the past 13 years,
with enormous loss of civilian life and immense property destruction. The
suffering was acknowledged by [Secretary-General] Antonio Guterres in
May 2021, when he stated: ‘If there is a hell on earth, it is the lives of
children in Gaza.’”845
4.200. In its 2022 report, the Human Rights Committee expressly concluded
that the Israeli blockade of Gaza amounted to “collective punishment of the
residents of Gaza”846. In so doing, it joined the High Commissioner for Human
Rights847, the Commissions of Inquiry on the situation in Gaza848, various other
845 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 45 (emphasis added and
footnotes omitted) (https://undocs.org/A/HRC/49/87).
846 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 38 (https://undocs.org/CCPR/C/ISR/CO/5).
847 Report of the United Nations High Commissioner for Human Rights, “Implementation of
Human Rights Council Resolution S-9/1 and S-12/1”, 28 April 2022, A/HRC/49/83, paras 14-15,
55(f) (https://undocs.org/A/HRC/49/83).
848 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48, paras. 326,
73 and 75 (https://undocs.org/A/HRC/12/48); Human Rights Council, Report of the detailed
findings of the independent commission of inquiry established pursuant to Human Rights Council
Resolution S-21/1, 24 June 2015, A/HRC/29/CRP.4, para. 681(d)
(https://undocs.org/A/HRC/29/CRP.4); Human Rights Council, Report of the detailed findings of
the independent international Commission of inquiry on the protests in the Occupied Palestinian
Territory, 18 March 2019, A/HRC/40/CRP.2, para. 797(a) (https://undocs.org/A/HRC/40/CRP.2).
241
United Nations human rights monitoring bodies849, and the ICRC850, which also
concluded that the blockade of Gaza constitutes collective punishment of the
Palestinian people, and called for its end.
4.201. In 2023, the Special Rapporteur underlined that:
“Within the fragmented occupied Palestinian territory, Israel has entrapped
the Palestinians within a physical architecture that resembles a prison, but
on a much larger territorial and societal scale … The illegal blockade of the
Gaza Strip is the most well-known example of this physical entrapment,
with over two million Palestinians subjected to collective punishment since
2007. The heavily militarized fence surrounding the Gaza Strip and its ‘nogo
zone’ further shrink the enclave by 17 percent and the agricultural area
by 35 percent, while access to the maritime area is reduced by 85 percent as
a result of the heavily-patrolled sea blockade.”851
4.202. Israel continues to maintain its blockade of Gaza Strip with no end in
sight.
II. Racial Discrimination Against Palestinian Citizens of Israel
4.203. Israel’s systematic discrimination against Palestinians is not confined
to the OPT. Its origins can be found in Israel’s policies towards the Palestinian
citizens of Israel, who constitute approximately 20 % of the population, since 1948
until today852.
4.204. Established by its own terms as a “Jewish State”, Israel has, since its
inception, discriminated in favour of its Jewish citizens and against its Palestinian
citizens on the basis of race. During the Nakba, between 750,000 and 900,000
Palestinians were forcibly driven from the territory that comprised Mandatory
Palestine and denationalized. To this day, they and their descendants have been
849 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, paras. 38-39 (https://undocs.org/CCPR/C/ISR/CO/5); Committee
on Economic, Social and Cultural Rights, Concluding observations on the fourth periodic report of
Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 11 (a) (https://undocs.org/E/C.12/ISR/CO/4).
850 “ICRC says Israel’s blockade breaks law”, BBC, 14 June 2010
(https://tinyurl.com/2wwvea9t).
851 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 9 June 2023, A/HRC/53/59 (Advance Unedited Version), para. 81
(footnote omitted) (https://tinyurl.com/ynuxb5kv).
852 Israel Central Bureau of Statistics, Population of Israel on the Eve of 2023,
29 December 2022, p. 1 (https://tinyurl.com/mm84y9p).
242
forbidden by Israel from returning to their homes and other property in their
ancestral land, as required under international law853. This contrasts sharply with
Israel’s treatment of foreign-born Jews, who are entitled by Israeli law to settle in
Israel and become citizens as of right.
4.205. The CERD Committee has repeatedly referred to the racial
discrimination and segregation endured by Palestinians citizens of Israel.
– In 2012, the CERD Committee’s Concluding Observations on Israel “note[d]
with increased concern that Israeli society maintains Jewish and non-Jewish
sectors, which raises issues under article 3 of the Convention”. The Committee
stressed that “the concerns as regards segregation remain pressing” and urged
Israel “to give full effect to article 3 and to make every effort to eradicate all
forms of segregation between Jewish and non-Jewish communities”854.
– In 2020, the Committee drew 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 urged Israel “to give full effect to article 3 of
the Convention 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”.855
4.206. Numerous Israeli laws discriminate between Jewish Israelis and
Palestinian citizens of Israel on the basis of race. In 2020, the CERD Committee’s
Concluding Observations on Israel expressed serious concern about Israeli laws
that:
“discriminate against Arab [Palestinian] 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.”856
853 See para. 4.214 below.
854 Committee on the Elimination of Racial Discrimination, Concluding observations on the
combined fourteenth to sixteenth reports of Israel, 9 March 2012, CERD/C/ISR/CO/14-16, para. 11
(https://undocs.org/CERD/C/ISR/CO/14-16).
855 Committee on the Elimination of Racial Discrimination, Concluding observations on the
combined seventeenth to nineteenth reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19,
para. 23 (https://undocs.org/CERD/C/ISR/CO/17-19).
856 Committee on the Elimination of Racial Discrimination, Concluding observations on the
combined seventeenth to nineteenth reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19,
para. 15 (https://undocs.org/CERD/C/ISR/CO/17-19). There are at least 50 Israeli laws that
243
4.207. In its September 2022 report, the Independent Commission of Inquiry
found that:
“[i]n 2022, Palestinian citizens of Israel are still subjected to discriminatory
policies including the confiscation of land, demolitions and evictions that
affect in particular the Bedouin in the Negev and Palestinians residing in
other areas of Israel. In addition, several Israeli laws discriminate against
Palestinian citizens of Israel.”857
4.208. The Commission of Inquiry concluded that:
“[i]n relation to the situation in Israel itself, the Commission has reviewed
the treatment of Palestinian citizens of Israel and notes that they are still
subjected to discriminatory laws and public policies, including in the areas
of education, housing and construction, and employment”.858
4.209. In fact, the Commission of Inquiry found there are “similarities between
the treatment of Palestinians by Israel inside Israel in the period since 1948, and its
policies in the Occupied Palestinian Territory.”859
4.210. The following examples illustrate, but do not even begin to fully
describe, the systematic racial discrimination that Israel practices against its own
citizens of Palestinian origin.
A. DISCRIMINATORY RESTRICTIONS ON THE RIGHT TO NATIONALITY AND
THE RIGHT TO RESIDE IN ISRAEL
4.211. Shortly after it was created, the State of Israel adopted laws which
expressly discriminate between Jews and Palestinians in respect of entitlement to
Israeli citizenship and the right to reside in Israel. In 1950, Israel adopted the Law
of Return which provides that:
discriminate overtly against Palestinians in Israel, which can be examined in the Discriminatory
Laws Database produced by Adalah, The Legal Centre for Arab Minority Rights in Israel
(https://tinyurl.com/4yzuukkv).
857 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 23
(https://undocs.org/A/77/328).
858 Ibid., para. 83.
859 Ibid., para. 21.
244
“Every Jew has the right to come to this country as an oleh [a Jew
immigrating to Israel]”860.
4.212. Israel’s Prime Minister, David Ben-Gurion, informed the Knesset that:
“[t]his law does not provide for the State to bestow the right to settle upon
the Jew living abroad; it affirms that this right is inherent in him from the
very fact of being a Jew”861.
4.213. In 1970, Israel amended the Law of Return through legislation which
provided (amongst other things) that:
“[t]he rights of a Jew under this Law and the rights of an oleh [a foreignborn
Jew who immigrates to Israel] under the Nationality Law, 5712-1952,
as well as the rights of an oleh under any other enactment, are also vested
in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a
child of a Jew and the spouse of a grandchild of a Jew, except for a person
who has been a Jew and has voluntarily changed his religion.”862
4.214. Accordingly, Israel’s laws confer an absolute right upon all Jews to
settle in Israel – a right which, if exercised, automatically results in entitlement to
Israeli citizenship863. In contrast, only Palestinians who remained during the Nakba
and found themselves to be residents of the newly-established State of Israel have
been entitled to Israeli citizenship864. The many hundreds of thousands of
Palestinians who were expelled or were forced to flee their homeland during the
Nakba, as well as their descendants were and are denied such rights. As Human
Rights Watch explains:
“Inside Israel, Israel’s Proclamation of Independence affirms the ‘complete
equality’ of all residents, but a two-track citizenship structure contradicts
that vow and effectively regards Jews and Palestinians separately and
unequally. Israel’s 1952 Citizenship Law contains a separate track
exclusively for Jews to obtain automatic citizenship. That law grows out of
the 1950 Law of Return which guarantees Jewish citizens of other countries
860 Law of Return 5710-1950, Article 1 (emphasis added).
861 Martin Edelman, “Who is an Israeli?: Halakhah and Citizenship in the Jewish State”,
Jewish Political Studies Review, Vol. 10, 1998, No. 3/4, p. 91 (emphasis added).
862 Law of Return (Amendment no. 2) 5370-1970, Article 4A (a).
863 Law of Return 5710 (1950), Article 1; The Citizenship and Entry into Israel Law
(Temporary Order) 5763 (2003).
864 Y. Harpaz and B. Herzog, Report on Citizenship Law: Israel, Country Report 2018/02
(June 2018), European University Institute, 2018, p. 9 (https://tinyurl.com/ycjsfhxb).
245
the right to settle in Israel. By contrast, the track for Palestinians conditions
citizenship on proving residency before 1948 in the territory that became
Israel, inclusion in the population registry as of 1952, and a continuous
presence in Israel or legal entry in the period between 1948 and 1952.
Authorities have used this language to deny residency rights to the more
than 700,000 Palestinians who fled or were expelled in 1948 and their
descendants, who today number more than 5.7 million. This law creates a
reality where a Jewish citizen of any other country who has never been to
Israel can move there and automatically gain citizenship, while a Palestinian
expelled from his home and languishing for more than 70 years in a refugee
camp in a nearby country, cannot.”865
B. NATION STATE LAW OF 2018
4.215. As discussed in Chapter 3866, in 2018 the Knesset enacted the Basic
Law: Israel – The Nation-State of the Jewish People867 (“the Nation State Law”).
The law stipulates that “exercising the right to national self-determination in the
State of Israel is unique to the Jewish people” and, among other provisions,
“removes the status of Arabic as an official language alongside Hebrew.”868 The
inherently racially discriminatory character of the Nation State Law, and its
centrality to the character of the Israeli State, has been described in a United Nations
report as follows:
“The Nation State Law entrenches constitutional inequality and
racial-national discrimination into Israeli law by distinguishing the rights of
Jewish Israelis from those of Palestinians and other non-Jewish citizens of
Israel. … The Nation State Law is consistent with the regular proclamation
by Israeli political leaders, including Benjamin Netanyahu, that ‘Israel is the
national state, not of all its citizens, but only of the Jewish people’.”869
865 Human Rights Watch, A Threshold Crossed – Israeli Authorities and the Crimes of
Apartheid and Persecution, 27 April 2021 (https://tinyurl.com/4ufjn368).
866 See paras. 3.164 and 3.210 above.
867 Basic Law: Israel – The Nation State of the Jewish People 5778-2018.
868 Report of the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 23
(footnote omitted) (https://undocs.org/A/77/328).
869 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 48 (footnotes omitted)
(https://undocs.org/A/HRC/49/87).
246
4.216. The racially discriminatory nature of this legislation was also
highlighted by the CERD Committee in its 2020 Concluding Observations, which
stated that:
“[t]he Committee is concerned about the discriminatory effect of the Basic
Law: Israel – The Nation-State of the Jewish People (2018) on non-Jewish
people in the State party, as it stipulates that the right to exercise
self-determination in Israel is ‘unique to the Jewish people’ and establishes
Hebrew as Israel’s official language, downgrading Arabic to a ‘special
status’.”870
C. DISCRIMINATION WITH RESPECT TO LAND AND HOUSING
4.217. Israel has adopted many laws and administrative policies and practices
which discriminate against Palestinian citizens of Israel in respect of the right to
property. As in the OPT, these laws and measures are designed to acquire
Palestinian-held land, to impede the development of Palestinian communities, and
to facilitate the expansion of Jewish communities. The cumulative effect of these
measures on Palestinians in Israel was recently summarised by Human Rights
Watch:
“As a result of decades of land confiscations and discriminatory land
policies, Israeli authorities have hemmed in Palestinian towns and villages,
while nurturing the growth and expansion of Jewish communities ….
Ninety-three percent of all land in Israel constitutes state land, directly
controlled by the Israeli government. Israeli authorities confiscated much of
this land, several million dunams, from Palestinians through several
different legal instruments ….
A government agency, the Israel Land Authority (ILA), managed and
allocated state lands. Almost half the members of its governing body belong
to the [Jewish National Fund], whose explicit mandate is to develop and
lease land for Jews and not any other segment of the population. The fund
owns 13 percent of Israel’s land, which the state is mandated to use ‘for the
purpose of settling Jews’.
Israeli authorities have almost exclusively allocated state lands for the
development and expansion of Jewish communities. Since 1948, the
government has authorized the creation of more than 900 ‘Jewish localities’
870 Committee on the Elimination of Racial Discrimination, Concluding observations on the
combined seventeenth to nineteenth reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19,
para. 13 (https://undocs.org/CERD/C/ISR/CO/17-19).
247
in Israel, but none for Palestinians except for a handful of
government-planned townships and villages in the Negev and Galilee,
created largely to concentrate previously displaced Bedouin communities.
Less than 3 percent of all land in Israel falls under the jurisdiction of
Palestinian municipalities, where the majority of Palestinian citizens
live …”871.
4.218. Israel has thus continued its policy of dispossession and displacement
of Palestinians, even toward those who are citizens of Israel, in an effort to
appropriate the land for its Jewish citizens.
4.219. Israel’s discriminatory policies have been reiterated and even
reinforced by its current government. The Coalition Agreement between the
political parties that constitute it provides for Jewish settlement in all parts of
historic Palestine, referred to as the “Land of Israel”, from the Mediterranean Sea
to the Jordan River:
“The Jewish people have an exclusive and uncontested right to all parts of
the Land of Israel. The Government will advance and develop settlement in
all parts of the Land of Israel in the Galilee, the Negev, the Golan, Judea
and Samaria.”872
4.220. What land will be used to build the new Jewish settlements in Israel
(the Galilee, the Negev)? The only land available is State land and private
Palestinian land. To dedicate any of this land exclusively to Israeli Jews, to the
exclusion of Palestinians is overt and unlawful racial discrimination. Yet that is
precisely the policy that Israel has adopted.
CONCLUSION
4.221. As the matters described above make clear, Israel has established a
deeply entrenched system of racial discrimination which pervades every aspect of
the Palestinian people’s lives on both sides of the Green Line. In the OPT, the
foundation of that regime is a dual legal system which applies different laws –
administered by different courts – to Palestinians and Jewish Israeli settlers,
871 Human Rights Watch, A Threshold Crossed – Israeli Authorities and the Crimes of
Apartheid and Persecution, 27 April 2021, pp. 151-152 (footnotes omitted)
(https://tinyurl.com/4ufjn368).
872 Coalition Agreement between the Likud Party and the Religious Zionist Party for the
Establishment of a National Government, 28 December 2022, Appendix A (Vol. II, Annex 12).
248
combined with a comprehensive set of discriminatory policies and practices
violating the rights of the Palestinian people and breaching international law. The
regime includes the discriminatory detention of thousands of Palestinian civilians –
adults and children, the discriminatory demolition of thousands of Palestinian
homes, and the discriminatory denial of Palestinians’ rights to freedom of
movement, religion and marriage and a wide range of other fundamental civil,
political, economic, social and cultural rights. Through its discriminatory laws and
its administrative and bureaucratic practices, Israel deliberately treats Palestinians
as a lower and lesser class of people than Jewish Israeli settlers. That is, in fact, its
point: to indelibly mark the OPT as a de facto and de jure extension of Israel itself,
to which it applies the laws it has promulgated, including the 2018 Nation State
Law, to ensure Jewish supremacy and domination between the Mediterranean Sea
and the Jordan River. Its aim is to advance and entrench permanent Jewish Israeli
possession and domination of the land which, as Israel’s current Minister
responsible for Civil Administration in the OPT has written, can only be
accomplished by suppressing the rights and legitimate aspirations of the Palestinian
people873.
4.222. The regime which Israel has established in the OPT is thus purposefully
imbued with widespread and systematic violations of the prohibition of racial
discrimination, in gross violation of customary international law of a jus cogens
character, in addition to innumerable other human rights violations. It is, in fact,
indistinguishable from apartheid, as discussed in the next Section of this Chapter,
and is in many ways even worse than that which was practiced by South Africa
between 1948 and the early 1990s, as observed by many who lived and witnessed
apartheid in South Africa and Namibia.
4.223. Even in Israel itself, Israel continues its appropriation of the land for
the benefit of its Jewish citizens at the expense of its Palestinian citizens and their
fundamental rights. Israeli laws, policies and practices are similar on both sides of
the Green Line as they stem from the rejection of the Palestinian presence – over
thousands of years – and Palestinian self-determination in the land between the
Mediterranean Sea and the Jordan River, and their legitimate aspiration to enjoy
their fundamental rights in their ancestral homeland.
873 B. Smotrich, “Israel’s Decisive Plan”, Hashiloach, 7 September 2017
(https://hashiloach.org.il/israels-decisive-plan/). On Smotrich’s statement, see also paras. 3.162,
3.175, 3.178-3.179 and 3.192 above and 5.50 below.
249
III. Israel’s Racial Discrimination Against the Palestinian People
Amounts to Apartheid
4.224. Special Rapporteurs on the Situation of Human Rights in the Occupied
Palestinian Territories occupied since 1967 and other United Nations Special
Procedures have been referring to the systematic racial discrimination against
Palestinians by Israel as apartheid since 2007874.
4.225. In 2010, for example, the Special Rapporteur described the
“entrenching of the colonialist and apartheid features of the Israeli occupation”875.
He went on to list some of those “apartheid features”:
“Among the salient apartheid features of the Israeli occupation are the
following: preferential citizenship, visitation and residence laws and
practices that prevent Palestinians who reside in the West Bank or Gaza
from reclaiming their property or from acquiring Israeli citizenship, as
contrasted to a Jewish right of return that entitles Jews anywhere in the
world with no prior tie to Israel to visit, reside and become Israeli citizens;
differential laws in the West Bank and East Jerusalem favouring Jewish
settlers who are subject to Israeli civilian law and constitutional protection,
as opposed to Palestinian residents, who are governed by military
administration; dual and discriminatory arrangements for movement in the
West Bank and to and from Jerusalem; discriminatory policies on land
ownership, tenure and use; extensive burdening of Palestinian movement,
including checkpoints applying differential limitations on Palestinians and
on Israeli settlers, and onerous permit and identification requirements
imposed only on Palestinians; punitive house demolitions, expulsions and
restrictions on entry and exit from all three parts of the Occupied Palestinian
Territories.”876
4.226. In 2014, the Special Rapporteur observed that it was “incontestable that
Israeli measures do divide the population of the Occupied Palestinian Territory
along racial lines, create separate reserves for Palestinians and expropriate their
874 See Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 29 January 2007, A/HRC/4/17, paras. 49-50, 58-63
(https://undocs.org/A/HRC/4/17).
875 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 30 August 2010, A/65/331, para. 3 (https://undocs.org/A/65/331).
876 Ibid., para. 5.
250
land.”877 He catalogued numerous “human rights violations” by Israel and
explained that the commission of those violations:
“reflects systematic and discriminatory Israeli policies, laws and practices,
which determine where in the occupied land Palestinians may or may not
travel, live and work. Laws and policies have also institutionalized just how
lightly a civilian Palestinian life may be weighed, when placed on the scales
against claims of overarching security concerns, contrasting with the legal
protection of the Israeli constitutional system given to unlawful Israeli
settlers. The combined effect of the measures … is hafrada, discrimination
and systematic oppression of, and domination over, the Palestinian
people.”878
Those “policies and practices”, he concluded, “appear to constitute apartheid”879.
4.227. In 2020, 47 of the United Nations Special Procedures mandate holders,
appointed by the Human Rights Council, declared in a joint statement issued in
response to plans for Israel to formalize its annexation of the West Bank, that:
“Human rights violations would only intensify after annexation. What
would be left of the West Bank would be a Palestinian Bantustan, islands of
disconnected land completely surrounded by Israel and with no territorial
connection to the outside world. Israel has recently promised that it will
maintain permanent security control between the Mediterranean and the
Jordan River. Thus, the morning after annexation would be the
crystallization of an already unjust reality: two peoples living in the same
space, rules by the same state, but with profoundly unequal rights. This is a
vision of a 21st century apartheid.”880
4.228. Most recently, after a comprehensive examination of the evidence, the
Special Rapporteur reached the conclusion in 2022 that Israel’s regime in the OPT
constitutes apartheid:
“Is this situation now apartheid? Applying each of the three steps of the
amalgamated test from the International Convention on the Suppression and
877 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 13 January 2014, A/HRC/25/67, para. 71
(https://undocs.org/A/HRC/25/67).
878 Ibid., para. 77.
879 Ibid., para. 78.
880 “Israeli annexation of parts of the West Bank would break international law - UN experts
call on the international community to ensure accountability”, United Nations Press Release,
16 June 2020 (https://tinyurl.com/jy7vkeze).
251
Punishment of the Crime of Apartheid and the Rome Statute, the Special
Rapporteur has concluded that the political system of entrenched rule in the
Occupied Palestinian Territory that endows one racial-national-ethnic group
with substantial rights, benefits and privileges while intentionally subjecting
another group to live behind walls and checkpoints and under a permanent
military rule sans droits, sans égalité, sans dignité et sans liberté (without
rights, without equality, without dignity and without freedom) satisfies the
prevailing evidentiary standard for the existence of apartheid.”881
4.229. Three particular factors were identified as leading to this conclusion:
“First, an institutionalized regime of systematic racial oppression and
discrimination has been established. Israeli Jews and Palestinian Arabs in
East Jerusalem and the West Bank live their lives under a single regime that
differentiates its distribution of rights and benefits on the basis of national
and ethnic identity, and that ensures the supremacy of one group over, and
to the detriment of, the other. … The differences in living conditions and
citizenship rights and benefits are stark, deeply discriminatory and
maintained through systematic and institutionalized oppression.
Second, this system of alien rule has been established with the intent to
maintain the domination of one racial-national-ethnic group over another.
Israeli political leaders, past and present, have repeatedly stated that they
intend to retain control over all of the occupied territory in order to enlarge
the blocs of land for present and future Jewish settlement while confining
the Palestinians to barricaded population reserves. This is a two-sided coin:
the plans for more Jewish settlers and larger Jewish settlements on greater
tracts of occupied land cannot be accomplished without the expropriation of
more Palestinian property together with harsher and more sophisticated
methods of population control to manage the inevitable resistance. Under
this system, the freedoms of one group are inextricably bound up in the
subjugation of the other.
Third, the imposition of this system of institutionalized discrimination with
the intent of permanent domination has been built upon the regular practice
of inhumane and inhuman acts. Arbitrary and extrajudicial killings. Torture.
The violent deaths of children. The denial of fundamental human rights. A
fundamentally flawed military court system and the lack of criminal due
process. Arbitrary detention. Collective punishment. The repetition of these
acts over long periods of time, and their endorsement by the Knesset and
881 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 52
(https://undocs.org/A/HRC/49/87).
252
the Israeli judicial system, indicate that they are not the result of random and
isolated acts but integral to the system of rule by Israel.”882
4.230. The Special Rapporteur was therefore clear that:
“This is apartheid. … With the eyes of the international community wide
open, Israel has imposed upon Palestine an apartheid reality in a postapartheid
world.”883
4.231. The findings and conclusions of successive Special Rapporteurs and
other Special Procedures align with the comprehensive studies undertaken by
highly regarded NGOs, which have similarly found that Israel practices apartheid
in the OPT. Indeed, some of these studies have gone further and found that Israel
practices a system of apartheid in both the OPT and in Israel itself. The reports
which have concluded that Israel is committing apartheid include those produced
by Human Rights Watch884, Amnesty International885, the International Federation
for Human Rights886, the highly regarded Palestinian NGOs Al Haq887 and Al
Mezan888, and the respected Israeli NGOs Yesh Din889 and B’Tselem890. Amnesty
International, for example, after an extensive factual and legal assessment,
concluded that:
“The totality of the regime of laws, policies and practices described in this
report demonstrates that Israel has established and maintained an
institutionalized regime of oppression and domination of the Palestinian
882 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, paras. 53-55
(https://undocs.org/A/HRC/49/87).
883 Ibid., para. 56.
884 Human Rights Watch, A Threshold Crossed: Israeli Authorities and the Crimes of
Apartheid and Persecution, 27 April 2021 (https://tinyurl.com/4ufjn368).
885 Amnesty International, Israel’s Apartheid against Palestinians: A Cruel System of
Domination and a Crime Against Humanity, 1 February 2022 (https://tinyurl.com/mt7a7c24).
886 International Federation for Human Rights, The International Community must hold Israel
Responsible for its Crimes of Apartheid, 28 April 2021 (https://tinyurl.com/3nk2ycra).
887 Al Haq, Israeli Apartheid. Tool of Zionist Settler Colonialism, 29 November 2022
(https://tinyurl.com/22x6t8ae). See also Al Haq, Addameer and Habitat International, Entrenching
and Maintaining an Apartheid Regime over the Palestinian People as a Whole, January 2022
(https://tinyurl.com/253rbwux).
888 Al Mezan, The Gaza Bantustan: Israeli Apartheid in the Gaza Strip, November 2021
(https://tinyurl.com/ye4vubwb).
889 M. Sfard, The Israeli Occupation of the West Bank and the Crime of Apartheid: Legal
Opinion, Yesh Din, 2020 (https://tinyurl.com/3k7prnks).
890 B’Tselem, A Regime of Jewish Supremacy from the Jordan River to the Mediterranean
Sea: This is Apartheid, January 2021 (https://tinyurl.com/3mvvyrav).
253
population for the benefit of Jewish Israelis – a system of apartheid –
wherever it has exercised control over Palestinians’ lives since 1948. The
report concludes that the State of Israel considers and treats Palestinians as
an inferior non-Jewish racial group. The segregation is conducted in a
systematic and highly institutionalized manner through laws, policies and
practices, all of which are intended to prevent Palestinians from claiming
and enjoying equal rights with Jewish Israelis within the territory of Israel
and within the OPT, and thus are intended to oppress and dominate the
Palestinian people. This has been complemented by a legal regime that
controls (by negating) the rights of Palestinian refugees residing outside
Israel and the OPT to return to their homes.”891
4.232. Prominent international figures have reached the same conclusion. The
late Archbishop Desmond Tutu, Nobel Peace Prize Laureate who chaired a Human
Rights Council fact-finding mission into one of Israel’s assaults on Gaza892, stated
publicly in 2014 that:
“I know firsthand that Israel has created an apartheid reality within its
borders and through its occupation. The parallels to my own beloved South
Africa are stark indeed.”893
4.233. Two former Israeli Ambassadors to South Africa drew a similar parallel
between the situation in Apartheid South Africa and the OPT. They noted that:
“[t]he Bantustans of South Africa under the apartheid regime and the map
of the occupied Palestinian territories today are predicated on the same idea
of concentrating the ‘undesirable’ population in as small an area as possible,
in a series of non-contiguous enclaves … It is clearer than ever that the
occupation is not temporary, and there is not the political will in the Israeli
government to bring about its end … Israel is the sole sovereign power that
operates in this land, and it systematically discriminated on the basis of
nationality and ethnicity. Such a reality is, as we saw ourselves, apartheid.
891 Amnesty International, Israel’s Apartheid against Palestinians: A Cruel System of
Domination and a Crime Against Humanity, 1 February 2022, p. 266
(https://tinyurl.com/mt7a7c24).
892 Report of the high-level fact-finding mission to Beit Hanoun established under Council
resolution S-3/1, “Human Rights Situation in Palestine and Other Occupied Arab Territories”,
1 September 2008, A/HRC/9/26 (https://undocs.org/A/HRC/9/26).
893 “Desmond Tutu: U.S. Christians Must Recognize Israel as Apartheid State”, Haaretz,
17 June 2014 (emphasis added) (https://tinyurl.com/45tzubvw).
254
It is time for the world to recognize that what we saw in South Africa
decades ago is happening in the occupied Palestinian territories too.”894
4.234. Other Israeli officials have reached the same conclusion. In 2017,
former Israeli Prime Minister Ehud Barak warned that Israel was on a “slippery
slope towards apartheid.”895
4.235. In May 2023, former Prime Minister Ehud Olmert declared:
“We can’t afford to continue to live under circumstances where there are
millions of people without rights that they deserve. It is simple as day … I
feel that we’re coming close to the point where Israel will be perceived as
an apartheid country … One option is to pull out from all the territories …
The alternative is to occupy all the territories, to deprive the Palestinians
sitting in the territories of human rights, to deny them the right which we
always ask for ourselves, of self-determination. And to actually make Israel
look like South Africa.”896
4.236. Likewise, Israeli Attorney General, Michael Benyair, stated that
“[b]etween the Jordan River and the Mediterranean Sea, it is Israel that is
permanently depriving millions of Palestinians of their civil and political rights.
This is Israeli apartheid.”897
4.237. This assessment, and the body of reports summarized above, support
the conclusion that Israel’s systematic racial discrimination, segregation,
oppression, persecution and domination of the Palestinian people – for the purpose
of crushing their right to self-determination and enabling the permanent acquisition
of the territory for the sole benefit of Jewish Israelis – constitutes a clear case of
apartheid.
894 Ilan Baruch and Alon Liel, “It’s apartheid, says Israeli ambassadors to South Africa”,
8 June 2021 (https://tinyurl.com/3wv2cf38).
895 “Former PM Barak: Israel on ‘slippery slope’ towards apartheid”, Deutsche Welle,
21 June 2017 (https://tinyurl.com/2hevf7v4).
896 “If you love Israel, you must protect this government, says the former Prime Minister”,
Vox, 16 May 2023 (https://tinyurl.com/2ftz8ube).
897 “With great sadness I conclude that my country now is an apartheid regime”, The Journal,
10 February 2022 (https://tinyurl.com/5n86ybmc).
255
A. DEFINING APARTHEID
4.238. There is no definition of apartheid in the CERD, the Convention on the
Non-applicability of Statutory Limitations to War Crimes and Crimes against
Humanity898 and Additional Protocol I. Both the Apartheid Convention and the
Rome Statute contain definitions of apartheid, but these definitions differ in certain
respects. Although these treaties are also concerned with individual criminal
responsibility and prosecution, the contents of the treaties provide an accepted
definition of apartheid. Accordingly, they are an appropriate touchstone for
assessing whether Israel’s policies and practices in the OPT constitute the
internationally wrongful act of apartheid.
4.239. The Apartheid Convention provides that apartheid involves the
commission of particular “inhuman acts … for the purpose of establishing and
maintaining domination by one racial group of persons over any other racial group
of persons and systematically oppressing them”899. The Convention contains a long
list of “inhuman acts” which include denial of the right to life and liberty (murder,
the infliction of bodily harm and arbitrary arrest and illegal imprisonment)900;
legislative and administrative measures calculated to prevent a racial group from
participating in the political, economic, social and cultural life of the country and
the deliberate creation of conditions preventing the full development of such a
group901; the creation of any measures designed to divide the population along
racial lines by the creation of separate reserves and ghettos902; and persecution of
persons or organizations because of their opposition to apartheid903.
4.240. The Rome Statute in turn defines apartheid in Article 7 (2) (h) as
comprising the commission of a number of inhumane acts “committed in the
context of an institutionalized regime of systematic oppression and domination by
one racial group over any other racial group or groups and committed with the
intention of maintaining that regime”904. The inhumane acts are spelled out in
Article 7 (1) and include murder, deportation, forcible transfer of population,
imprisonment in violation of fundamental rules of international law, torture, rape,
898 General Assembly, Resolution 2391 (XXIII), 26 November 1968.
899 Apartheid Convention, Article II.
900 Ibid., Article II (a).
901 Ibid., Article II (c).
902 Ibid., Article II (d).
903 Ibid., Article II (f).
904 Rome Statute of the International Criminal Court, 17 July 1998, Article 7(2)(h). The Rome
Statute describes the proscribed acts as “inhumane” while the Apartheid Convention uses the term
“inhuman”.
256
persecution, enforced disappearance, the crime of apartheid and “[o]ther inhumane
acts of a similar character intentionally causing great suffering …”905.
4.241. The principal difference between the two definitions is that the
Apartheid Convention stresses that the inhuman acts must be committed for the
purpose of establishing and maintaining domination by one racial group over
another and systematically oppressing that group, while the Rome Statute provides
that the inhumane acts must be committed in the “context of an institutionalized
regime of systematic oppression and domination”. Scholars are divided over the
implications of this difference, particularly in respect of the formation of the
customary rule prohibiting apartheid906. For present purposes, the differences
between the two conventions may be reconciled on the basis of their principal
common requirements, namely:
(i) Two or more racial groups;
(ii) An institutionalized regime of systematic oppression and domination by
one racial group over another;
(iii) The commission of inhumane acts;
(iv) The inhumane acts are committed with the intention and purpose of
maintaining that regime.
B. ISRAEL’S RACIAL DISCRIMINATION AGAINST THE PALESTINIAN PEOPLE
AMOUNTS TO APARTHEID
1. Two Racial Groups
4.242. Israeli law confirms the separate identity of the Jewish racial group.
The Citizenship Law (1952)907 recognizes a strict distinction between Jewish and
non-Jewish persons and the Nation State Law of 2018 provides that “[t]he State of
Israel is the Nation State of the Jewish people” and “shall strive to secure the
905 Rome Statute of the International Criminal Court, 17 July 1998, Article 7(1).
906 See M. Jackson, “The definition of apartheid in customary international law and ICERD”,
International and Comparative Law Quarterly, Vol. 71, 2022, No. 4, pp. 831-855 (who argues that
the customary rule is to be found in the Apartheid Convention). See also P. Eden, “The Role of the
Rome Statute in the Criminalization of Apartheid”, Journal of International Criminal Justice, Vol.
12, 2014, No. 2, pp. 171-191, and A. Cassese, P. Gaeta et al., Cassese’s International Criminal Law,
3rd edn. (Oxford University Press, 2013), p. 107.
907 The Citizenship Law 5712-1952.
257
welfare of the members of the Jewish people”908. The result of these laws is that
Jewish Israelis form a group that enjoys a privileged legal status in all areas under
the control and domination of Israel, to the detriment of the rights of the Palestinian
people.
4.243. Palestinians regard themselves as a people with shared, historical,
political, social and cultural ties. They share a common language and have shared
customs and cultural practices. They identify themselves as a distinct racial group
with a common heritage909. It is therefore clear in the context of the OPT and inside
Israel that Jewish Israelis and Palestinians are perceived by both themselves and by
external actors as stable and permanent groups distinct from each other who can be
considered as different racial groups for the purposes of the definition of apartheid.
4.244. In his 2022 report, the Special Rapporteur concluded that: “in the
context of the actions of Israel towards the Palestinians living in the occupied
territory, Jewish Israelis and Palestinian Arabs may be understood as distinct racial
groups distinguished by their nationality, ethnicity, religion, ancestry and
descent.”910
2. An Institutionalized Regime of Systematic Oppression and Domination by One
Racial Group Over Another
4.245. Both the Apartheid Convention and the Rome Statute stress that
apartheid involves systematic domination and oppression by one racial group over
another. In addition, the Rome Statute requires that the crime be “committed in the
context of an institutionalized regime of systematic oppression and domination”911.
4.246. The International Criminal Tribunals for the former Yugoslavia
(“ICTY”) and Rwanda and the ICC have interpreted the term systematic to mean a
“regular pattern”912 and “continuous commission” of crimes913. In Prosecutor v
Kunarac the Appeals Chamber of the ICTY stated that the word “systematic” refers
908 Basic-Law: Israel-The Nation State of the Jewish People, as adopted 5778-2018,
Articles 1 (a) and 6 (a) (Vol. II, Annex 9).
909 See R. Khalidi, Palestinian Identity: The Construction of Modern National Consciousness
(New York, Columbia University Press, 2010), 310 p.
910 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 33 (footnote omitted)
(https://undocs.org/A/HRC/49/87).
911 Rome Statute, Article 7 (2) (h).
912 ICTR, Prosecutor v Akayesu, ICTR-96-4-T, Trial judgment, 2 September 1998, para. 580.
913 ICTY, Prosecutor v Kordic and Cerkez, IT-95-14/2-T, Trial judgment, 26 February 2001,
para. 179.
258
to “the organised nature of the acts of violence and the improbability of their
random occurrence”914. Domination “may be understood as a particularly powerful
form of control” while oppression “may be understood as prolonged or continual
cruelty”915.
4.247. As demonstrated in Section I of this Chapter, Israel has established an
institutionalized regime premised on racial segregation, discrimination, subjugation
and domination. Underpinning Israel’s discriminatory policies and practices against
Palestinians is a legal system that distinguishes between Jewish nationality and
Israeli citizenship, with Jewish nationals privileged over non-Jews, including
Palestinian citizens of Israel. This privileged status is made clear in the Basic Law
of 2018 which describes “[t]he State of Israel as the nation state of the Jewish
People”916. As early as 2009, the United Nations Fact-Finding Mission on the Gaza
Conflict, found that:
“[e]xclusive benefits reserved for Jews derive from the two-tiered civil
status under Israel’s legal regime based on ‘Jewish nationality’, which
entitles ‘persons of Jewish race or descendency’ to superior rights and
privileges, particularly in land use, housing, development, immigration and
access to natural resources, as affirmed in key legislation.”917
4.248. The Special Rapporteur explained in 2022 that “the Government of
Israel has determined the allocation, and the denial, of rights in the Occupied
Palestinian Territory through a series of laws, practices and policies that define who
is a Jew and who is not a Jew (the non-Jewish population being overwhelmingly
Palestinian)”918. Israel’s administration in the West Bank, including East Jerusalem,
and its control of the Gaza Strip plainly follow a “regular pattern” of continuous
commission of offensive acts which cannot be described as “random”
914 ICTY, Prosecutor v Kunarac, Kovac and Vukovic, IT-96-23 & IT-96-23/1-A, Appeal
judgment, 12 June 2002, para. 94; ICC, Prosecutor v Katanga and Ngudjolo, ICC-01/04-01/07, Pre-
Trial decision, 30 September 2008, para. 394.
915 M. Jackson, Expert Opinion on the Interplay between the Legal Regime Applicable to
Belligerent Occupation and the Prohibition of Apartheid under International Law, March 2021,
para. 18 (footnote omitted) (https://tinyurl.com/49b8n3w6).
916 Basic-Law: Israel, The Nation State of the Law of Israel, 5778-2018, Article 1 (b).
(https://tinyurl.com/5xru5m8s).
917 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, “Human Rights
in Palestine and other Occupied Arab Territories”, 25 September 2009, A/HRC/12/48, para. 206
(footnotes omitted) (https://undocs.org/A/HRC/12/48).
918 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 33
(https://undocs.org/A/HRC/49/87).
259
occurrences919. For these reasons, “an institutionalized regime of systematic racial
oppression and discrimination has been established” in the OPT920.
3. The Commission of Inhumane Acts
4.249. As demonstrated in this Chapter, Israel has committed – and continues
to commit – a wide array of inhumane acts against Palestinians, notably in the OPT,
but also in Israel itself. These include unlawful killings; torture and cruel, inhuman
or degrading treatment or punishments; unlawful arrests and detention; forcible
transfers; destruction of property and collective punishments. Furthermore, Israel
has systematically violated the civil, political, economic, social and cultural rights
of Palestinians in the OPT on racial grounds. These violations also constitute
inhumane acts for the purposes of the definition of apartheid under the Apartheid
Convention921 and the Rome Statute922.
4. Intention/Purpose of Maintaining the Regime
4.250. The Rome Statute, in Article 7 (2) (h), requires that apartheid be
committed with the intention of maintaining an institutionalized regime of
systematic oppression by one racial group over another923. Such an intent “may, in
the absence of direct explicit evidence, be inferred from a number of facts and
circumstances”924. The Apartheid Convention requires inhumane acts to be
committed for the purpose of establishing a regime of racial domination and
oppression925.
4.251. The twin purposes of Israel’s occupation of the OPT are to extend the
“sovereignty” of Israel also over Jerusalem and the rest of the Palestinian territory
that it occupied in June 1967 and to subjugate the Palestinian people who continue
to live in this territory by denying them the right to self-determination and
independence. Institutionalized and systematic apartheid is an essential element of
the occupation as it serves to further Israel’s colonization and annexation goals,
919 Ibid., para. 55.
920 Ibid., para. 53 (emphasis added).
921 See Article II of the Apartheid Convention.
922 The Rome Statute includes persecution as an inhumane act, defined as “the intentional and
severe deprivation of fundamental rights contrary to international law by reason of the identity of
the group.”
923 This is a form of specific intent additional to the general intent required in article 30 of the
Rome Statute.
924 ICTY, Prosecutor v Jelisic, IT-95-10-A, Appeal judgment, 5 July 2001, para. 47.
925 Apartheid Convention, Article II.
260
including the subjugation of the Palestinian people and the extinction of their right
of self-determination in their own land. As the Special Rapporteur found in 2022,
Israel is “an acquisitive occupier determined to maintain permanent control over
the land and its indigenous population”926. Indeed, “prime ministers of Israel have
regularly and openly proclaimed that the country’s rule over the Palestinians and
their land is permanent and that no Palestinian State will emerge.”927 To this end,
Israel has chosen “to double down with increasingly more sophisticated and harsher
methods of population control as the inevitable consequence of entrenching
permanent alien rule over” the Palestinian people928. The methods employed by
Israel to achieve this goal, described in this Written Statement, provide abundant
evidence of Israel’s intention to make permanent its occupation, and, in furtherance
of that objective, to impose apartheid as an indispensable component of its effort to
maintain control over the territory by subjugating its indigenous population on the
basis of a comprehensive scheme of racial discrimination against them.
4.252. As shown in the previous Section, Israel has also enacted laws and
adopted policies and practices discriminating against Palestinian citizens of Israel
and for the benefit of Jewish Israelis, including through allocation of State land,
dispossession and displacement from their homes, and restrictions on where they
can live, to ensure control of one group over the land at the expense of the other,
and to assert the supremacy of Jewish Israelis in Israel.
CONCLUSION
4.253. Israel’s occupation of the OPT is characterized by a system of apartheid
in which an institutionalized military regime directed by a political leadership
systematically persecutes and aims to colonize and annex Palestinian territory.
More broadly, Israel discriminates against all Palestinians, on both sides of the
Green Line and Palestinian refugees and diaspora, on grounds of their race, in order
to establish, promote and perpetuate the supremacy of Jewish Israelis and their
permanent dominion over all the territory between the Mediterranean Sea and the
Jordan River. Israel’s policy towards the Palestinian people has become a textbook
illustration of apartheid. It is no less malign in its aim, and no less pervasive in its
devastating consequences for the Palestinian people, than the apartheid regime
which existed in South Africa – and in Namibia under South African occupation
926 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, para. 47
(https://undocs.org/A/HRC/49/87).
927 Ibid., para. 9 (footnote omitted).
928 Ibid., para. 36.
261
prior to its independence – until the 1990s. Accordingly, based on the abundant
evidence that has been brought before the Court as set out in this Chapter, it is well
established that Israel is committing the internationally wrongful act of apartheid.
263
Chapter 5.
ONGOING VIOLATION BY ISRAEL OF THE RIGHT OF
THE PALESTINIAN PEOPLE TO SELF-DETERMINATION
5.1. It is indisputable that the Palestinian people have the right to selfdetermination,
as the Court itself confirmed in the Wall Opinion929. Tragically, that
right has been, and continues to be, violated by Israel. Israel has sought to deny and
suppress this right by annexing Palestinian territory, discriminating against the
Palestinian people and denying them their fundamental rights in their ancestral land.
5.2. This Chapter addresses in more detail the nature and content of the
Palestinian people’s right to self-determination, and its violation by Israel. Section I
addresses the content of the right to self-determination. It explains that the right of
self-determination comprises four specific components, namely (i) the right to
territorial integrity; (ii) the prohibition on demographic manipulation within that
territory by a foreign power; (iii) permanent sovereignty over natural resources;
and (iv) the right to freely determine political status and pursue economic, social
and cultural development.
5.3. Section II demonstrates that the Palestinian people have the right to selfdetermination
under international law. It shows that this right was first recognized
internationally under the Mandate System that was established following World
War Ⅰ and the creation of the League of Nations. However, the partition plan
recommended by the United Nations General Assembly in 1947, though
recognizing the right of the Palestinian people to self-determination, effectively
undermined it by unduly limiting its territorial component against the Palestinian
people’s express wishes. Nevertheless, over the last three-quarters of a century, the
right of the Palestinian people to self-determination, including their right to an
independent State, has been repeatedly and continually reaffirmed by each of the
principal organs of the United Nations, including this Court, and by the vast
majority of States and regional and international organizations.
5.4. Section III demonstrates that Israel, since its creation in 1948, has denied
and refused to recognize the Palestinian people’s right of self-determination
anywhere within the territory that constituted Palestine under the former British
929 Wall Opinion, p. 183, para. 118.
264
Mandate. Its policy of dispossession, displacement and replacement, ethnic
cleansing, discrimination and denial of rights which began with the 1947-1949
Nakba, has continued to this very day. Israel persists in denying the Palestinian
people’s existence, national identity, heritage, historic roots and rights in the land.
Israel has, in fact, systematically violated every component of the Palestinian
people’s right to self-determination.
5.5. Israel’s colonization and annexation of the Palestinian territory and its
systematic racial discrimination tantamount to apartheid against the Palestinian
people constitute two of the gravest forms of violation of the right of peoples to
self-determination under international law. As shown below, by its seizure of
Jerusalem and the rest of the West Bank, assertion of “sovereignty” and declaration
that it will never leave, Israel has severely disrupted Palestine’s territorial integrity.
By its implantation of over 700,000 of its own nationals in the OPT and its
displacement of tens of thousands of Palestinians from their own land, it has
engaged in egregious demographic manipulation. By its takeover of the critical
water sources, hydrocarbon deposits and mineral quarries and exploitation of them
for its own benefit, including the establishment and expansion of its settlements, it
has deprived the Palestinian people of the exercise of their sovereignty over their
own natural resources. Finally, by its suppression of all forms of national
expression, and systematic discrimination affecting all aspects of their daily life,
Israel has attempted to extinguish the right of the Palestinian people to freely
determine their political status and to freely pursue their economic, social and
cultural development.
I. The Content of the Right of Self-Determination
5.6. The right to self-determination is recognised as a principle of “universal
application”, having erga omnes effects. This is consistent with its status as a jus
cogens norm930. The International Law Commission has included the right to selfdetermination
in its non-exhaustive list of jus cogens norms931.
930 M. Shaw, Title to Territory in Africa: International Legal Issues (Oxford University Press,
1986), p. 91; D. Raic, Statehood and the Law of Self-Determination (Martinus Nijhoff Publishers,
2002), p. 219.
931 Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of
General International Law (Jus Cogens), Report of the International Law Commission, Seventythird
session (18 April–3 June and 4 July–5 August 2022), A/77/10, p. 88, para. (14) of the
commentary to Conclusion 23 and its annex. See also para. 2.50 above.
265
5.7. As indicated, the right to self-determination includes four components, as
follows.
A. THE RIGHT TO TERRITORIAL INTEGRITY
5.8. In its resolutions 1514 (XV) and 2625 (XXV), the General Assembly
affirmed the right to territorial integrity as an essential corollary of the right to selfdetermination:
“Every State shall refrain from any action aimed at the partial or total
disruption of the national unity and territorial integrity of any other State or
country”;932
“Any attempt aimed at the partial or total disruption of the national unity
and the territorial integrity of a country is incompatible with the purposes
and principles of the Charter of the United Nations.”933
5.9. In the Chagos Advisory Opinion, the Court concluded that “[b]oth State
practice and opinio juris … confirm the customary law character of the right to
territorial integrity”, and that it represented “a key element of the exercise of the
right to self-determination under international law.”934 In this way, the Court
recognized the right to territorial integrity in relation to self-determining peoples.
5.10. Acquisition of territory belonging to another State, or a self-determining
people, by military force is a specific manifestation of the total or partial
“disruption” of territorial integrity, and constitutes an egregious form of denying
the right of the people of that State to self-determination. As the General Assembly
stated clearly in its resolution 2649 (XXV) of 30 November 1970935, “the
acquisition and retention of territory in contravention of the right of the people of
that territory to self-determination is inadmissible and a gross violation of the
Charter”936.
932 General Assembly, Resolution 2625 (XXV), Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States, 24 October 1970.
933 General Assembly, Resolution 1514 (XV), 14 December 1960, para. 6.
934 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, I.C.J. Reports 2019, p. 134, para. 160.
935 General Assembly, Resolution 2649 (XXV), 30 December 1970, preamble: “The
importance of the universal realization of the right of peoples to self-determination and of the speedy
granting of independence to colonial countries and peoples for the effective guarantee and
observance of human rights”.
936 Ibid., para. 4.
266
5.11. Resolution 1514 (XV) and 2625 (XXV) further recognized that “[a]ll
States shall … respect … the sovereign rights of all peoples and their territorial
integrity”937 and that “[e]very State shall refrain from any action aimed at the partial
or total disruption of the national unity … of any State or country.”938
B. THE PROHIBITION ON DEMOGRAPHIC MANIPULATION
5.12. In addition to respecting the territorial integrity of a non-self-governing
territory, States are obliged to desist from acts that impair the unity (spatial and
political) of the peoples concerned. Measures designed to dilute the integrity of a
people entitled to a right of self-determination, by displacing them from the
territorial unit, by confining them to isolated enclaves within the unit, or by
introducing a different people into the unit, severely infringe that right.
5.13. Two distinct aspects of the principle may be discerned939. The first is the
prohibition on forcible transfer of a people (by practices of ethnic cleansing or
forced relocation, or by making life within the territorial unit unsustainable for
them), in a manner that undermines the integrity of the self-determining people. As
the United Nations Special Rapporteurs explained in 1993, the exercise of the right
to self-determination “would necessarily be frustrated if a population were uprooted
from its homeland and when transfers contribute to the destruction of a distinct
identity and remove a people’s ability to determine their own destiny as a
people”940. This dimension of the right to self-determination was confirmed by the
Court in the Wall Opinion:
“There is also a risk of further alterations to the demographic composition
of the Occupied Palestinian Territory resulting from the construction of the
wall inasmuch as it is contributing … to the departure of the Palestinian
populations from certain areas. That construction, along with measures
taken previously, thus severely impedes the exercise by the Palestinian
937 General Assembly, Resolution 1514 (XV), 14 December 1960, para 7.
938 General Assembly, Resolution 2625 (XXV), Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States, 24 October 1970 (emphasis
added). See also General Assembly, Resolution 1514 (XV), 14 December 1960.
939 C. Drew, “Self-Determination, Population Transfer and the Middle East Peace Accords”,
in S. Bowen (ed.), Human Rights, Self-Determination and Political Change in the Occupied
Palestinian Territories, Brill, 1997, p. 135.
940 A. Al-Khasawneh and R. Hatano, Preliminary Report, The Realisation of Economic, Social
and Cultural Rights: The Human Rights Dimensions of Population Transfer, including the
Implantation of Settlers, 6 July 1993, E/CN.4/Sub.2/1993/17, p. 44, para. 203
(https://tinyurl.com/2p2kd9ex).
267
people of its right to self-determination, and is therefore a breach of Israel’s
obligation to respect that right.”941
5.14. The second aspect concerns the transfer of other peoples into the territory
of a self-determining people (settler implantation), which also undermines the
exercise of self-determination. This, of course, is prohibited by the Fourth Geneva
Convention942. The General Assembly has made clear that both forms of
demographic manipulation – displacement of the population out of the territory and
introduction of another people into it – violate the right to self-determination943.
C. THE RIGHT TO PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES
5.15. The General Assembly has repeatedly stressed that the right to
permanent sovereignty over natural resources is a “basic constituent of the right to
self-determination”944. This is reiterated in common Article 1 of the two
International Covenants, which affirm the right of all peoples to “freely dispose of
their natural resources”945, and in resolution 3281 (XXIX) of 12 December 1974
which declares that “Every State has and shall freely exercise full permanent
sovereignty, including possession, use and disposal, over all its wealth, natural
resources and economic activities.”946
941 Wall Opinion, p. 184, para. 122.
942 Fourth Geneva Convention, Article 49.
943 General Assembly, Resolutions 2105 (XX), 20 December 1965, para. 5: “Calls upon the
colonial Powers to discontinue their policy of violating the rights of colonial peoples through the
systematic influx of foreign immigrants and the dislocation, deportation and transfer of the
indigenous inhabitants”; 3548 (XXX), 10 December 1975, para. 7 2228 (XXI), 20 December 1966,
para. 2: “Calls upon the administering Power to ensure that the right of self-determination shall be
freely expressed and exercised by the indigenous inhabitants of the Territory on the basis of
universal adult suffrage and with full respect for human rights and fundamental freedoms”;
2356 (XXII), 19 December 1967, para. 3: “Calls upon the administrative Power to create the
political conditions necessary for accelerating the implementation of the right of the people to selfdetermination
and independence, including the full exercise of political freedoms, and to allow the
return of all refugees to the Territory”; 3480 (XXX), 11 December 1975, para. 3: “Calls upon the
administering Power to create the necessary condition in order to accelerate the process of
independence of the people of so-called French Somaliland (Djibouti) by effecting in particular the
release of political prisoners and the return of the representatives of the liberation movements
recognized by the Organization of African Unity and of all refugees …”.
944 General Assembly, Resolution 1803 (XVII), 12 December 1962. See also General
Assembly, Resolutions 35/118, 11 December 1980; 52/78, 10 December 1997; 54/9,
6 December 1999; 55/147, 8 December 2000; 56/74, 10 December 2001.
945 International Covenant on Economic, Social and Cultural Rights, 16 December 1966 (entry
into force: 3 January 1976), UNTS, Vol. 993, Article 1; International Covenant on Civil and Political
Rights, 16 December 1966 (entry into force 23 March 1976), UNTS, Vol. 999, Article 1.
946 General Assembly, Resolution 3281 (XXIX), 12 December 1974, Art. 2, para. 1.
268
5.16. The General Assembly adopted this approach in its Declaration on
Permanent Sovereignty in which it stated that the violation of the right “of peoples
and nations to sovereignty over their natural wealth and resources is contrary to the
spirit and principles of the Charter of the United Nations”947. In its Declaration on
the Right of Development, the General Assembly stated that “[t]he human right to
development also implies the full realization of the right of peoples to selfdetermination”,
including the exercise of “full sovereignty over all their natural
wealth and resources”948.
5.17. The “natural wealth and resources” over which a people enjoys “full
sovereignty” includes, of course, the supply of fresh water, mineral resources, and
hydrocarbon deposits, which are present in the OPT.
D. THE RIGHT TO FREELY DETERMINE THEIR POLITICAL STATUS AND
FREELY PURSUE ECONOMIC, SOCIAL AND CULTURAL DEVELOPMENT
5.18. The right of a people to freely determine its political status, including the
establishment of an independent State, is fundamental to the right to selfdetermination.
This is reflected by the words of General Assembly Resolution 1514
(XV):
“All peoples have the right to self-determination; by virtue of that right they
freely determine their political status …”949.
5.19. Resolution 2625 (XXV) likewise stressed that:
“By virtue of the principle of equal rights and self-determination of peoples
enshrined in the Charter of the United Nations, all peoples have the right
freely to determine, without external interference, their political
status …”950.
5.20. In 2007, the General Assembly adopted the United Nations Declaration
on the Rights of Indigenous Peoples, which:
“Acknowledg[ed] that the Charter of the United Nations, the International
Covenant on Economic, Social and Cultural Rights and the International
947 General Assembly, Resolution 1803 (XVII), 12 December 1962, para. 7.
948 General Assembly, Resolution 41/128, 4 December 1986, para.1 (2).
949 General Assembly, Resolution 1514 (XV), 14 December 1960, para. 2.
950 General Assembly, Resolution 2625 (XXV), 24 October 1970, Annex (emphasis added).
See also General Assembly, Resolution 1514 (XV), 14 December 1960.
269
Covenant on Civil and Political Rights, as well as the Vienna Declaration
and Programme of Action, affirm the fundamental importance of the right
to self-determination of all peoples, by virtue of which they freely determine
their political status …”951.
5.21. The right to self-determination also includes the freedom to pursue
economic, social and cultural development. This principle is confirmed by
resolutions 1514 (XV), 2625 (XXV) and 61/295 and by Articles 1 of ICCPR and
ICESCR which have both been ratified by the vast majority of the international
community. The General Assembly has repeatedly emphasized the connection
between the right to self-determination and the right to pursue political, economic,
social and cultural development. Its Declaration on the Right to Development
describes the right to self-determination as “an inalienable human right by virtue of
which … all peoples are entitled to participate in, contribute to, and enjoy
economic, social, cultural and political development, in which all human rights and
fundamental freedoms can be fully realized”952. As the Human Rights Committee
pointed out in its General Comment No. 12:
“The right to self-determination is of particular importance because its
realization is an essential condition for the effective guarantee and
observance of individual human rights and for the promotion and
strengthening of those rights. It is for that reason that States set forth the
right to self-determination in a provision of positive law in both Covenants
and placed this provision as article 1 apart from and before all of the other
rights in the two Covenants”.953
II. The Right to Self-Determination of the Palestinian People
5.22. The Court has recognized that the right to self-determination is a right to
which the Palestinian people are entitled, and that Israel has acted in violation of
that right. In the Wall Opinion in 2004, the Court stated:
“As regards the principle of the right of peoples to self-determination, the
Court observes that the existence of a “Palestinian people” is no longer in
issue.”954
951 General Assembly, Resolution 61/295, 13 September 2007, Annex (emphasis added).
952 General Assembly, Resolution 41/128, 4 December 1986, para. 1 (1).
953 Human Rights Committee, General Comment No. 12, The Right to Self-Determination of
Peoples, 13 March 1984, HRI/GEN/1/Rev.9 (Vol. I), para 1 (https://tinyurl.com/4nf6fuft).
954 Wall Opinion, pp. 182-183, para. 118.
270
It went on to determine that the construction of the Wall:
“severely impedes the exercise by the Palestinian people of its right to selfdetermination,
and is therefore a breach of Israel’s obligation to respect that
right”955.
5.23. Long before the Court addressed the issue in 2004, United Nations
bodies had recognized the right of self-determination of the Palestinian people. In
resolution 2535 B (XXIV) of 10 December 1969, for example, the General
Assembly recognized that: “the problem of the Palestinian Arab refugees has arisen
from the denial of their inalienable rights under the Charter of the United Nations
and the Universal Declaration of Human Rights” and reaffirmed, thus, its
recognition of the “inalienable rights of the people of Palestine”, calling upon the
Security Council to take effective measures to ensure implementation of its relevant
resolutions.
5.24. The following year, the General Assembly confirmed that the inalienable
rights in question included the right to self-determination. In
resolution 2649 (XXV) it condemned “those Governments that deny the right to
self-determination of peoples recognized as being entitled to it, especially of the
peoples of southern Africa and Palestine”956; and in resolution 2672 (XXV) of
8 December 1970 it recognized “that the people of Palestine are entitled to equal
rights and self-determination, in accordance with the Charter of the United Nations”
and that “full respect for the inalienable rights of the people of Palestine is an
indispensable element in the establishment of a just and lasting peace in the Middle
East”957.
5.25. Resolution 3236 (XXIX) of 22 November 1974 reaffirmed “the
inalienable rights of the Palestinian people in Palestine, including: (a) The right to
self-determination without external interference; (b) The right to national
independence and sovereignty”, as well as “the inalienable right of the Palestinians
to return to their homes and property from which they have been displaced and
uprooted, and call[ed] for their return”958.
5.26. It was followed by repeated affirmation by the General Assembly of the
“inalienable rights of the Palestinian people” in, inter alia, resolution 3376 (XXX)
of 10 November 1975; resolution 37/43 of 3 December 1982; resolution 38/17 of
955 Ibid., p. 184, para. 122.
956 General Assembly, Resolution 2649 (XXV), 30 November 1970.
957 General Assembly, Resolution 2672 (XXV), 8 December 1970.
958 General Assembly, Resolution 3236 (XXIX), 22 November 1974.
271
22 November 1983; resolution 39/17 of 23 November 1984; resolution 40/25 of
29 November 1985; resolution 41/101 of 4 December 1986; resolution 42/95 of
7 December 1987; resolution 46/87 of 16 December 1991; resolution 46/130 of
17 December 1991; resolution 47/82 of 16 December 1992; and resolution 48/94 of
20 December 1993.
5.27. From resolution 49/149 of 23 December 1994 onwards, the General
Assembly has adopted annual resolutions specifically entitled “The right of the
Palestinian people to self-determination”959. The most recent is resolution 77/208
of 15 December 2022, which “[r]eaffirms the right of the Palestinian people to selfdetermination,
including the right to their independent State of Palestine” and urges
all States and specialized agencies to “support and assist the Palestinian people in
the early realization of their right to self-determination.”960
5.28. The Human Rights Council also adopts annual resolutions which
“[r]eaffirm[] the inalienable, permanent and unqualified right of the Palestinian
people to self-determination, including their right to live in freedom, justice and
dignity and the right to their independent State of Palestine”; “[c]all[] upon Israel,
the occupying Power, to immediately end its occupation of the Occupied
Palestinian Territory, including East Jerusalem, and to reverse and redress any
impediments to the political independence, sovereignty and territorial integrity of
Palestine”; “[e]xpress[] grave concern at any action taken in contravention of the
General Assembly and Security Council resolutions relevant to Jerusalem”; “[a]lso
express[] grave concern at the fragmentation and the changes in the demographic
composition of the Occupied Palestinian Territory, including East Jerusalem, which
are resulting from the continuing construction and expansion of settlements,
forcible transfer of Palestinians and construction of the wall by Israel, stress[] that
this fragmentation, which undermines the possibility of the Palestinian people
realizing their right to self-determination, is incompatible with the purposes and
principles of the Charter of the United Nations, and emphasize[] in this regard the
959 General Assembly, Resolutions 50/140, 21 December 1995; 51/82, 12 December 1996;
52/114, 12 December 1997; 53/136, 9 December 1998; 52/152, 17 December 1999; 55/87,
4 December 2000; 56/142, 19 December 2001; 57/147, 16 December 2002; 58/163,
22 December 2003; 59/179, 20 December 2004; 60/146, 16 December 2005; 61/184,
20 December 2006; 62/146, 18 December 2007; 63/165, 18 December 2008; 64/150,
18 December 2009; 65/202, 20 December 2010; 66/146, 19 December 2011; 68/154,
18 December 2013; 69/165, 18 December 2014; 70/141, 17 December 2015; 71/184,
19 December 2016; 72/160, 19 December 2017; 73/158, 17 December 2018; 74/139,
18 December 2019; 75/172, 16 December 2020; and 76/150, 16 December 2021.
960 General Assembly, Resolution 77/208, 15 December 2022.
272
need for respect for and preservation of the territorial unity, contiguity and integrity
of all of the Occupied Palestinian Territory, including East Jerusalem”961.
5.29. These resolutions also:
“[c]onfirm[] that the right of the Palestinian people to permanent
sovereignty over their natural wealth and resources must be used in the
interest of their national development, the well-being of the Palestinian
people and as part of the realization of their right to self-determination”;
“[c]all[] upon all States to ensure their obligations of non-recognition, nonaid
or assistance with regard to the serious breaches of peremptory norms
of international law by Israel, in particular of the prohibition of the
acquisition of territory by force, in order to ensure the exercise of the right
to self-determination, and also call[] upon them to cooperate further to
bring, through lawful means, an end to these serious breaches and a reversal
of the illegal policies and practices of Israel” and “[u]rge[] all States to adopt
measures as required to promote the realization of the right to selfdetermination
of the Palestinian people, and to render assistance to the
United Nations in carrying out the responsibilities entrusted to it by the
Charter regarding the implementation of this right”962.
5.30. The recognition of the right of the Palestinian people to selfdetermination
predates even the establishment of the United Nations. It was
recognized by the Mandate System of the League of Nations. As Professor James
Crawford put it:
“the principle of self-determination, in its application to Palestine, is not one
of these doubtful or later-developed rules. It has been argued that since selfdetermination
was not a general rule or principle of international law in
1920 or in 1948, it can have had no application to Palestine at either period.
But the Covenant and … the Mandate specifically applied the principle of
self-determination to the territory of Palestine. This position was, at least by
implication, reaffirmed by Article 80 of the Charter. Palestine in 1948
constituted a self-determination unit in international law.”963
5.31. Article 80 (1) of the Charter provides:
“Except as may be agreed upon in individual trusteeship agreements, made
under Articles 77, 79, and 81, placing each territory under the trusteeship
961 See, for example, Human Rights Council, Resolution 49/28, 11 April 2022, paras. 1, 3-5.
962 Ibid., paras 6-8.
963 J. Crawford, The Creation of States in International Law, 2nd edn. (Oxford University Press,
2007), p. 428.
273
system, and until such agreements have been concluded, nothing in this
Chapter shall be construed in or of itself to alter in any manner the rights
whatsoever of any states or any peoples or the terms of existing international
instruments to which Members of the United Nations may respectively be
parties.”964
5.32. As the Court made clear in the Namibia case, a “striking feature” of this
“safeguard clause” was “the stipulation in favour of the preservation of the rights
of ‘any peoples’, thus clearly including the inhabitants of the mandated territories,
and, in particular, their indigenous populations.”965 The rights thus preserved had
“an existence independent of that of the League of Nations”. The Court further
pointed out that Article 80 served not only to preserve the rights enjoyed by peoples
under the Mandate pending the establishment of a Trusteeship agreement, but also
a situation in which a Trusteeship agreement was never concluded. The Court thus
recognized that the peoples of South-West Africa continued to enjoy the right to
self-determination. Ipso facto, the Palestinian people must continue to enjoy the
rights recognized as belonging to them under the Mandate System. Indeed, the
rights recognized for the people of South-West Africa under a Class C Mandate
were less extensive than those recognized for the Palestinian people under a Class A
Mandate966.
5.33. Figure 5.1 at p. 275 below depicts Palestine under the British Mandate,
the territorial unit in which the Palestinian people were to enjoy the right of selfdetermination.
5.34. However, the Mandatory Power, instead of facilitating the realization of
the right of the Palestinian people to self-determination as was done in respect of
the indigenous people in other Class A Mandates, furthered policies aimed at
964 Charter of the United Nations, Article 80 (1).
965 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. 33, para. 59.
966 Article 22 of the Covenant of the League of Nations established three classes of Mandate.
Class A Mandates were “[c]ertain communities formerly belonging to the Turkish Empire have
reached a stage of development where their existence as independent nations can be provisionally
recognized subject to the rendering of administrative advice and assistance by a Mandatory until
such time as they are able to stand alone”. Class B Mandates were deemed to be “at such a stage
that the Mandatory must be responsible for the administration of the territory”. Class C Mandates
comprised “territories … which, owing to the sparseness of their population, or their small size, or
their remoteness from the centres of civilisation, or their geographical contiguity to the territory of
the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory
as integral portions of its territory”.
274
changing the demographic composition of the territory against the will of its
indigenous people, with the aim of creating a Jewish homeland in Palestine, an
objective stated in the Balfour Declaration of 1917967. This demographic
engineering undermined the Palestinian people’s inalienable right to selfdetermination
and paved the way for the recommendation by the General Assembly
in resolution 181 (II) to partition Palestine in November 1947 without consulting
with or giving regard to the will and wishes of the Palestinian people. Figure 5.2 at
p. 277 below shows the partition of Palestine as proposed by the United Nations
General Assembly.
5.35. Within a few months, Zionist militias seized control of the majority of
historic Palestine, including around half of the territory allotted to the Arab State in
the plan recommended by the General Assembly, and between 750,000 and 900,000
Palestinians were expelled and uprooted from their homeland, in what is known as
the Nakba (the catastrophe) endured by the Palestinian people in 1947-1949.
Figure 5.3 at p. 279 below shows how Israel enlarged itself during this period even
beyond the territory allotted to it by the Partition Plan, resulting in the 1949
Armistice Line, referred to as the Green Line. Since 1967, and Israel’s occupation
of the West Bank, including East Jerusalem, and the Gaza Strip, this line has served
as delineation of the Occupied Palestinian Territory.
5.36. The Mandate ended without the Palestinian people having been allowed
to realize their right to self-determination. Israel was admitted thereafter as member
of the United Nations following its commitment to respect General Assembly
resolutions 181 (II) and 194 (III), pertaining respectively, inter alia, to the partition
of Palestine into two States, with Jerusalem being placed under an international
regime, and the right of return of Palestinian refugees (see paras. 1.20-1.21 above)
– but it has continued to violate their spirit and letter to this day despite its pledge
to honour them at the time.
5.37. The international community has recognized the right of the Palestinian
people to self-determination, including their right to independence of their State.
The resolution on the right of the Palestinian people to self-determination
mentioned above enjoys quasi-universal support. Moreover, General Assembly
resolution 67/19 of 29 November 2012, supported by 138 States with only 9 voting
967 Balfour Declaration, 2 November 1917 (https://tinyurl.com/mvbnrna7). See also M. C.
Bassiouni, “‘Self-Determination’ and the Palestinians”, American journal of International Law
Proceedings, Vol. 65, 1971, pp. 31 and 36.
THE BRITISH MANDATE FOR
PALESTINE
Original map modified
Source: https://ar.wikipedia.org/wiki/%D9%85%D9%84%D9%81:Map_of Figure 5.1
_Mandatory_Palestine_in_1946_with_major_cities_%28in_English%29.svg
275
THE UNITED NATIONS PARTITION
PLAN FOR PALESTINE
Source: https://www.salon.com/2015/11/30/u_n_voted_to_partition_palestine_68 Figure 5.2
_years_ago_in_an_unfair_plan_made_even_worse_by_israels_ethnic_cleansing/
277
0
0 10 20 30 mi
10 20 30 km
UN PARTITION PLAN - 1947
AND
UN ARMISTICE LINES - 1949
Armistice Demarcation lines, 1949
(Shown where at variance with Mandate boundary)
Boundary of Former Palestine Mandate
PLAN OF PARTITION, 1947
Arab State
Jewish State
Jerusalem
JORDAN
EGYPT
ISRAEL
LEBANON
SYRIAN ARAB
REPUBLIC
MEDITERRANEAN
SEA
Lake
Tiberias
Dead
Sea
Galf of
Aqaba
Jordan
GAZA
WEST
BANK
GOLAN
S I N A I
Quneitra
Nawa
Tyre
Nahariyya
Acre
Haifa
Jenin
Netanya
Tel Aviv
Arab
Nablus
Ramie
Jericho Amman
Bethlehem
Gaza Hebron
Rafah
El Arish
Elat
Beersheba
Tulkarm
Qalqilia
Nazareth
Safad
Jerusalem
Map No. 4153 UNITED NATIONS
October 2000
The designations employed and the
presentation of material on this map do
not imply the expression of any opinion
whatsoever on the part of the Secretariat of
the United Nations concerning the legal status
of any country, territory, city or area or of its
authorities or concerning the delimitation of its
frontiers or boundaries.
34° 36°
35° 36°
32°
31°
30°
32°
33°
31°
30°
Nahar
UN PARTITION PLAN - 1947 35
AND
UN ARMISTICE LINES - 1949
Figure 5.3
279
281
in opposition, reaffirmed “the right of the Palestinian people to self-determination
and to independence in their State of Palestine on the Palestinian territory occupied
since 1967”, and accorded to Palestine “non-member observer State status” in the
United Nations.
5.38. More than 140 States have explicitly recognized Palestine as a State and
statehood as a critical component of the Palestinian people’s right to selfdetermination.
Many other States which have not yet formally recognized the State
of Palestine have indicated that they would do so under certain conditions, and
notwithstanding the qualifications they identify, nevertheless affirm the common
view that the Palestinian people have a right to self-determination under
international law that is being infringed upon and that includes a right to an
independent and sovereign State of Palestine. The Security Council and the General
Assembly have repeatedly called for an end of the Israeli occupation and for two
democratic States – including an independent, sovereign, contiguous State of
Palestine living side by side in peace and security with Israel – on the basis of the
relevant United Nations resolutions968.
III. Israel’s Denial of, and Ongoing Refusal to Recognize,
the Right of the Palestinian People to Self-Determination
5.39. Israel has negated the right of the Palestinian people to selfdetermination,
in all its aspects, everywhere on the territory of Mandatory Palestine.
Israel has not sought to conceal the nature of what it is doing; on the contrary, it has
made its purpose clear in its deeds, in the words of its leaders, and even in its own
quasi-constitutional laws addressing the right to self-determination. Its policy is
reflected in its Basic Law, which declares that: “The realization of the right to
national self-determination in the State of Israel is exclusive to the Jewish
People.”969 As a consequence, the Palestinian people are deliberately excluded from
exercising the right to self-determination anywhere within the territory
encompassed by Mandatory Palestine, including their right to independence of their
State on the Palestinian territory occupied since 1967, namely the West Bank,
including East Jerusalem, and the Gaza Strip. Notably, the Basic Law does not
specify the borders of the “State of Israel,” within which only the “Jewish People”
are given the exclusive “right to national self-determination”. However, it expressly
encompasses the entirety of Jerusalem, East and West, and other parts of the OPT,
968 See, e.g., Security Council, Resolutions 242 (1967), 22 November 1967; 1397 (2002),
12 March 2002; 1515 (2003), 19 November 2003; and 2334 (2016), 23 December 2016.
969 Basic Law: Israel – The Nation State of the Jewish People 5778-2018, para. 1 (c) (Vol. II,
Annex 9).
282
to which it refers not as Palestine or even the West Bank, but as “Judea and
Samaria”, connoting that for Israel they are part of the Land of Israel. Senior Israeli
officials are increasingly outspoken in declaring Israel’s “sovereignty” over, and
intention to remain permanently in, Jerusalem and “Judea and Samaria,” as
evidenced by their public statements referenced in Chapter 3 (see in particular
paras. 3.179-3.193 above).
5.40. The consequences for Palestinians have been dire and far-reaching. For
over 75 years, from the Nakba onwards, Israel has persisted in its attempts to
permanently dispossess and displace Palestinians, denying their connection to, and
legitimate claims and inalienable rights in, their ancestral homeland. Israel has
prevented Palestinian refugees from returning to their homes since 1948 and until
today. Palestinians who were able to remain in present day Israel following the
Nakba and became its citizens continue to face systemic discrimination affecting
their fundamental freedoms and rights, and severely restricting their access to
property and land. Palestinians in the OPT face a military rule that violates their
human rights and that explicitly benefits the Israeli settlers illegally present on their
territory to the detriment of their fundamental rights, including especially and
emphatically their right to self-determination.
A. VIOLATION OF TERRITORIAL INTEGRITY
5.41. Israel has violated the territorial integrity of the OPT by annexing East
Jerusalem and the rest of the West Bank, as shown in Chapter 3, Parts A and B,
respectively. The purported annexation of a people’s territorial unit by another State
is a gross violation of the principle of territorial integrity. Israel’s actions violate
the fundamental precept, embodied in the United Nations Charter, prohibiting the
use or threat of force against the territorial integrity or political independence of
any other State, or in any other manner inconsistent with the Purposes of the United
Nations and its corollary, the inadmissibility of the acquisition of territory by force.
Its annexation of Palestinian territory also violates numerous Security Council and
General Assembly resolutions which condemn and declare inadmissible Israel’s
acquisition of Palestinian territory as violations of international law, including the
right of the Palestinian people to self-determination970.
970 See, e.g., General Assembly, Resolutions 67/120, 18 December 2012; 68/82,
11 December 2013; 69/92, 5 December 2014; 70/89, 9 December 2015; 71/97, 6 December 2016;
72/86, 7 December 2017; 73/98, 7 December 2018; 75/97, 18 December 2020; 76/82,
9 December 20211; and 77/126, 12 December 2022. See also Security Council,
283
5.42. In addition, numerous United Nations bodies – such as the General
Assembly971, the Security Council972 and the Human Rights Council973 – have
affirmed the need to preserve the “unity, contiguity and integrity” of the Palestinian
territory. The General Assembly in particular has stressed repeatedly “the need for
respect for and preservation of the territorial unity, contiguity and integrity of all of
the Occupied Palestinian Territory, including East Jerusalem”, including in its
annual resolution on the right of the Palestinian people to self-determination974.
5.43. In its effort to grab maximum Palestinian land with minimum
Palestinians, Israel has fragmented the Palestinian territory, confining the
Palestinians in enclaves, separated by vast areas in which only Israeli settlements
are allowed, and by a road and transit system that connects the settlements to Israel
and each other and further isolates the Palestinian enclaves, or that have been
declared as Israeli military zones and nature reserves to ensure continued control
by Israel over them.
5.44. Jerusalem, in particular, has been severed from its Palestinian
environment by Israeli laws, policies and practices, including the settlements (now
numbering more than 230,000 Israeli settlers in East Jerusalem)975 and their
associated regime, which have also deeply fragmented the West Bank and the
Palestinian communities confined therein and cut them off from their historic
capital and most of their sacred religious sites.
5.45. As described in Chapter 3, Part A, and Chapter 4, this has been
accomplished through measures such as construction and expansion of Jewish
Israeli-only settlements encircling the Holy City and extension of the Wall,
accompanied by restrictions on entry into Jerusalem by Palestinians who live in the
West Bank and the Gaza Strip. These restrictions prevent Palestinians living outside
the annexation Wall from entering the Holy City and from accessing their means of
livelihood severed by the Wall, including farms and businesses. And they attempt
to prevent the Palestinians living in East Jerusalem from integrating, politically,
economically, socially and culturally, into the Palestinian polity within the OPT.
Resolutions 242 (1967), 22 November 1967; 252 (1968), 21 May 1968; 298 (1971),
25 September 1971; 465 (1980); 1 March 1980; and 2334 (2016), 23 December 2016.
971 See, e.g., General Assembly, Resolution 76/150, 16 December 2021, preamble.
972 Security Council, Resolution 242 (1967), 22 November 1967, para. 1 (ii).
973 Human Rights Council, Resolution 52/34, 18 April 2023, para. 5.
974 General Assembly, Resolution 77/208, 28 December 2022, preamble.
975 Peace Now, Settlements Map 2023, 5 January 2023, p. 2 (https://tinyurl.com/2p97bz6p).
284
5.46. As shown in Chapter 3, Part B, and Chapter 4, Israel has fragmented the
West Bank by separating Palestinian communities from one another by declaring
large parts of that territory – amounting to some 60 % – off-limits to Palestinians,
including the Jordan Valley which Israel has reserved for itself as a “military” zone;
by crisscrossing the West Bank with a system of roads and highways which
Palestinians are restricted or prohibited from using, and which cut off Palestinian
towns and villages from one another; and by denying Palestinians the building
permits they require to accommodate normal population growth and then
demolishing thousands of homes built without the permits required by Israel,
confining the respective Palestinian communities to isolated and confined areas or
coercing them to leave Palestine altogether.
5.47. As shown in Chapter 4 (see in particular paras. 4.192-4.202 above), the
Gaza Strip has been transformed “into a heavily populated, impoverished enclave
controlled by Israel through a suffocating sea, land and air blockade”976, entirely
separated and cut off from the West Bank, including East Jerusalem.
5.48. The United Nations Special Rapporteur for the situation of human rights
in the Palestinian territories occupied since 1967 has stated that the “prime vector”
for the fragmentation of the Palestinian territory, in addition to the physical
separation imposed by the blockade and the restrictions regime, described in
Chapter 4, is the deliberate adoption of different regimes applicable to different
areas within the OPT977, which singularly and cumulatively violate the right of the
Palestinian people to self-determination.
B. DEMOGRAPHIC MANIPULATION
5.49. Israel has engaged in a demographic manipulation of the population in
Palestine; first, in regard to the transfer of its own population to Palestinian
territory; second, in regard to its expulsion and displacement of Palestinians from
their own homeland.
1. Transfer of Israeli Nationals to the OPT
5.50. As shown in Chapter 3, Parts A and B, Israel has implanted hundreds of
settlements and hundreds of thousands of its own nationals in East Jerusalem and
976 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 21 September 2022, A/77/356, para. 46.
(https://undocs.org/A/77/356).
977 Ibid., para. 44.
285
the rest of the West Bank, and it has publicly declared that they will remain there
permanently. This effort to alter the demography of the OPT by the transfer of its
own citizens began in 1967 and has gathered force ever since, with ever more
settlements and settlers planned. Most recently, as related in Chapter 3 (see
paras. 3.85 and 3.214 above), the Israeli government streamlined the process of
authorizing new settlements and immediately approved another 6,500 housing units
in East Jerusalem and in February 2023 it authorised the construction of a further
7,349 housing units in the West Bank. The Minister responsible for these
settlements, and for so-called civil administration in the OPT, foresees “hundreds
of thousands” of new Israeli settlers, further entrenching Israel’s “sovereign” claims
with the proclaimed aim to render it impossible for the national aspirations of the
Palestinian people – including independence of their State – to be realized. In this
regard, the Minister has called for:
“full Israeli sovereignty to the heartland regions of Judea and Samaria, and
end of conflict by settlement in the form of establishing new cities and
settlements deep inside the territory and bringing hundreds of thousands of
additional settlers to live therein. This process will make it clear to all that
the reality in Judea and Samaria is irreversible, that the State of Israel is here
to stay, and that the dream of an Arab State in Judea and Samaria is no
longer viable.”978
2. Expulsion of Palestinians
5.51. Long before it began transferring its own nationals to Palestinian
territory, Israel adopted and vigorously pursued a policy of expelling Palestinians,
in an effort to create an Israeli majority. Of the roughly 1.4 million Palestinians
living within Mandatory Palestine in 1948, between 750,000 and 900,000 were
expelled and uprooted from their homes during the Nakba of 1947-1949979. In the
978 B. Smotrich, Israel’s Decisive Plan, 7 September 2017 (https://tinyurl.com/2d3bkfcy).
979 See the First Interim Report of the United Nations Economic Survey Mission for the Middle
East (16 November 1949, A/AC.25/4), which put the number of refugees at 774,000. Today, there
are over 7 million Palestinian refugees, including over 5.7 million in the OPT and neighbouring
countries who are registered with and assisted by the United Nations Relief and Works Agency for
Palestine Refugees in the Near East (UNRWA), the United Nations agency established by
resolution 302 (IV) of 8 December 1949 after the Nakba with the initial mandate to provide “direct
relief and works programmes” to Palestinian refugees, in order to “prevent conditions of starvation
and distress … and to further conditions of peace and stability”. The General Assembly has
repeatedly renewed the mandate of UNRWA to provide services to ensure the well-being, protection
and human development of the refugees pending a just solution to their plight in accordance with
resolution 194 (III) of 11 December 1948, which affirmed, inter alia, their right to return and which
has been recalled in countless resolutions from 1948 to the present day, most recently in Resolution
77/123 of 12 December 2022 (https://undocs.org/A/RES/77/123).
286
midst of that displacement, on 15 May 1948, Israel was established. Almost
immediately thereafter, in June 1948, the Israeli Cabinet decided to bar the return
of the Palestinian refugees to their homes within the newly established State of
Israel980. That decision was subsequently codified in a series of Israeli laws aimed
at dispossessing Palestinians of their property and denationalizing them en bloc.
Thus, under the Emergency Regulations (Absentees’ Property) of
2 December 1948 (later amended to the Absentee Property Law 1950), Israel
unilaterally seized the moveable and immovable property of every Palestine refugee
as well as those Palestinians internally displaced in what became Israel, even though
those Palestinians became citizens of Israel.
5.52. In 1950, Israel enacted the Law of Return, described above in Chapter 4,
which granted foreign-born Jews the right to immigrate to Israel and become
citizens (see paras. 4.211-4.214 above). In contrast, Israel’s Nationality Law of
1952 barred all Palestinians who had been forcibly exiled from returning, and
unilaterally annulled their prior Palestine citizenship thereby rendering them
stateless in one fell swoop981. In addition, Israel’s Prevention of Infiltration
(Offences and Jurisdiction) Law of 1954 provided for criminal sanction and
expulsion for Palestinian refugees who attempted to exercise their legitimate right
of return982.
5.53. Israeli actions resulted in a further round of forcible and deliberate
displacement during the war of 1967, during which around 400,000 Palestinians
were forced to flee the part of Mandate Palestine that became the OPT983, namely
the West Bank, including East Jerusalem, and the Gaza Strip. Israel dealt with those
exiles in much the same way as it did the refugees of 1948: it sought to render their
absence permanent by prohibiting their return. Military Order 1 declared the West
Bank and Gaza Strip closed military areas984. In 1969, Israel adopted two further
military orders (290 and 329) which prohibited Palestinians who were present in
Jordan, Syria, Egypt, or Lebanon at any time after 7 June 1967 from entering the
OPT985. Since April 2010, Israel has broadened the scope of the prohibition under
980 See B. Morris, “Falsifying the Record: a Fresh Look at the Zionist Documentation of 1948”,
Journal of Palestine Studies, Vol. 24, 1995, no. 3, p. 56.
981 Nationality Law, 5712-1952 (https://tinyurl.com/2p8yzs92).
982 Prevention of Infiltration Law (Offenses and Jurisdiction), 5714-1954.
983 F. Albanese, Palestinian Refugees in International Law, 2nd edn. (Oxford University Press,
2020), p. 50, fns. 265 and 266.
984 Order Closing Area, Gaza Strip and Northern Sinai, No. 1, 1967.
985 Order Regarding Prevention of Infiltration (Judea and Samaria) (No. 329), 1969 and its
equivalent counterpart in Gaza, Military Order No. 290, 1969. A copy of the text of the Orders can
be found in J. Hiltermann, Israel’s Deportation Policy in the Occupied West Bank and Gaza (Al
Haq, 1986), pp. 93-95 (https://tinyurl.com/4ve6y865).
287
Military Order 329, providing for deportation from the West Bank of any person
found without an Israeli-issued permit986. Such a clear denial of the right of
Palestinian refugees and other displaced Palestinians to return to their homes and
reclaim their property and receive reparations also constitutes a fundamental breach
of the Palestinian people’s right to self-determination.
5.54. The same goal of displacement has been sought for the Palestinians who
remained in the OPT following Israel’s 1967 military seizure of the territory. As
recounted in Chapter 3, Parts A and B, and Chapter 4, Israel has adopted and
implemented a series of policies designed to establish what authoritative United
Nations bodies have characterized as a “coercive environment” in which the
conditions of life for Palestinians are made so desperate that they are forced to leave
their territory, or to leave the communities in which their families have resided for
generations, to take shelter in one of the small and increasingly isolated enclaves
where they have been confined. This is a manifest case of demographic
manipulation, gravely impairing the right of the Palestinian people to selfdetermination.
C. DENIAL OF SOVEREIGNTY OVER NATURAL RESOURCES
5.55. The General Assembly adopts annually a resolution entitled “Permanent
sovereignty of the Palestinian people in the Occupied Palestinian Territory,
including East Jerusalem, and of the Arab population in the occupied Syrian Golan
over their natural resources”. The resolution “[r]eaffirms the principle of the
permanent sovereignty of peoples under foreign occupation over their natural
resources”, indicating that it was “[g]uided by the principles of the Charter of the
United Nations”, and recalls “the inadmissibility of the acquisition of territory by
force”, and “relevant Security Council resolutions, including
resolutions 242 (1967) of 22 November 1967, 465 (1980) of 1 March 1980,
497 (1981) of 17 December 1981 and 2334 (2016) of 23 December 2016”. It then:
“Reaffirms the inalienable rights of the Palestinian people … over their
natural resources, including land, water and energy resources;
Demands that Israel, the occupying Power, cease the exploitation, damage,
cause of loss or depletion and endangerment of the natural resources in the
Occupied Palestinian Territory, including East Jerusalem”.987
986 Order regarding Prevention of Infiltration, Amendment No. 2, No. 1650
(https://tinyurl.com/2p98pm5d).
987 General Assembly, Resolution 77/187, 14 December 2022, paras. 1 and 2.
288
5.56. In his June 2022 report to the General Assembly, the Secretary General
observed:
“The system of restrictive policies imposed by Israel on Palestinian
economic activity, resources and land since 1967 has systematically
stripped the Palestinian economy of many elements that are vital for its
healthy operation, rendering it highly vulnerable to internal and external
shocks. The multilayered restrictive system continues to deny Palestinian
control over natural resources and egress, which constrains access to
regional and international markets and limits policy space.”988
He further noted that:
“Since 1967, Israel has placed all water resources in the Occupied
Palestinian Territory under its military control and prohibited Palestinians
from constructing new water installations or maintaining existing
installations without a military permit.”989
5.57. 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.
Israel’s control over and exploitation of the water sources in the OPT, and the
deleterious impact this has had on the Palestinian inhabitants, has been set out in
detail in Chapter 4 (see paras 4.145-4.153 above).
5.58. Also, Chapter 3, Part B describes Israel’s annexation of the West Bank,
notably 60% of that territory that has been virtually entirely seized and planned for
Israeli settlements, military zones and nature reserves, making it almost entirely off
limits for Palestinians (see para 3.195 above, in particular). Israel has not only
appropriated the land but also the natural resources in that area. UNCTAD
underlines that:
“Area C, which accounts for about 60 per cent of the area of the West Bank,
incorporates Israeli settlements and is fully under civil and security control
988 Economic and social repercussions of the Israeli occupation on the living conditions of the
Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab
population in the occupied Syrian Golan, Note by the Secretary-General, 8 June 2022, A/77/90,
para. 75 (https://undocs.org/A/77/90).
989 Ibid., para. 58.
289
by Israel, although it contains the most valuable natural resources in the
West Bank.”990
It notes in this regard:
“The West Bank is divided into disconnected islands and the only
contiguous part is Area C, which remains under the control of Israel and is
largely inaccessible to Palestinian producers, although it has the most
valuable natural resources, such as fertile land, minerals and stones, as well
as tourist attractions and cosmetic products.
.......................................................................................................................
Evidence suggest 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 and political advantages and the expansion of
settlements, while depriving the Palestinian economy and agriculture of
critical water resources.”991
5.59. Likewise, Israel’s takeover of Palestinian quarries for operation by
Israeli companies engaged in construction within Israel itself, as well as the
settlements in the OPT and its prevention of Palestinian exploitation of hydrocarbon
deposits both onshore and offshore, have been amply documented992. By effectively
expropriating the natural resources of the OPT for itself, Israel has not only deprived
the Palestinian people of their right to exercise “full sovereignty” over their natural
resources; it has denied them the enjoyment of any significant benefits from them
over decades and has depleted them. Such acts undermine the ability of the
Palestinian people to self-reliance and are a manifest violation of the right to selfdetermination
of the Palestinian people993.
990 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: The
Cost of Restrictions in Area C Viewed from Above, 9 March 2023, UNCTAD/GDS/APP/2022/1,
p. vii (https://tinyurl.com/3uaykkt2).
991 Ibid., pp. 3 and 7.
992 See, e.g., UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian
People: The Unrealized Oil and Natural Gas Potential, United Nations, 2019
(https://tinyurl.com/yvusxty9); World Bank, West Bank and Gaza – Area C and the Future of the
Palestinian Economy, 2 October 2013 (https://tinyurl.com/2p982j6x).
993 I. Scobbie, “An Intimate Disengagement: Israel’s withdrawal from Gaza, the Law of
Occupation and of Self-Determination”, Yearbook of Islamic and Middle Eastern Law Online,
Vol. 11, 2004, no. 1, pp. 3-31.
290
D. DENIAL OF CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS
5.60. As shown in Chapter 4, to establish and maintain its dominion over the
Palestinian people, Israel has imposed a comprehensive system of racial
discrimination and denial of fundamental rights, in breach of the peremptory norm
of international law prohibiting discrimination against, and subjugation of, a people
on grounds of race. Israel’s systematic racial discrimination against the Palestinian
people and denial of the freedom to exercise their civil, political, economic, social
and cultural rights also violates the peremptory obligation to respect their right to
self-determination. As UNCTAD noted in its 2023 report:
“The violence and restrictions imposed on Palestinians impact every aspect
of Palestinian life, from the right to housing to the right to economic
development, education and access to health services.”994
5.61. Underlying the denial of these fundamental rights is Israel’s refusal to
accept the existence of the Palestinians as a people. The public declaration by the
Minister in charge of “civil administration” in the OPT in March 2023, that “there
is no such thing as the Palestinian people”995, is only the most recent manifestation
of Israel’s denial of Palestinian existence and rights. It serves Israel’s purposes: if
there is no Palestinian people, then they can enjoy no civil, political, economic,
social or cultural rights as such.
5.62. On this basis, Israel prohibits and punishes any political expression of
Palestinian identity and nationhood. Palestinian symbols are outlawed and
commonly attacked. National flags reflect the identity of a people and are a
manifestation of their existence and presence. For those denying this existence and
assaulting that presence, the Palestinian flag cannot be tolerated. The Palestinian
flag is, according to the United Nations Special Rapporteur, “systematically
attacked and torn down, in public places, during public events, protests and even
funerals”996. More recently, the Israeli Minister for National Security declared: “I
directed the Israel police to enforce the prohibition of flying any PLO flag that
994 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: The
Cost of Restrictions in Area C Viewed from Above, 9 March 2023, UNCTAD/GDS/APP/2022/1,
p. 9 (https://tinyurl.com/3uaykkt2).
995 “Smotrich says there’s no Palestinian people, declares his family ‘real Palestinians’”, The
Times of Israel, 20 March 2023 (https://tinyurl.com/3k368zh7).
996 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 21 September 2022, A/77/356, para. 53
(https://undocs.org/A/77/356).
291
shows identification with a terrorist organization from the public sphere”997. It is
indicative that the Israeli Minister did not wish to refer to it as the Palestinian flag,
as he denies the existence of a Palestinian people. His statement is consistent with
a longstanding policy by Israel to consider any manifestation of Palestinian identity
or any opposition to, or rejection of, the occupation, as terrorism.
5.63. As noted by the United Nations Economic and Social Commission for
Western Asia:
“Israeli military orders in the West Bank allow the army authorities to
declare as ‘unlawful’, ‘hostile’ or ‘terrorist’ virtually any association and to
detain for incitement anyone showing ‘sympathy’ or ‘support’ for such
‘unlawful’ entities, including the singing of slogans. These broad
restrictions carry a significant risk of criminalizing the lawful exercise of
freedom of expression, peaceful assembly and association. As of
March 2020, Israel had banned as ‘unlawful’ 430 organizations, including
all major political parties, such as the ruling group Fatah.”998
5.64. The Human Rights Committee expressed its concern in relation to the
Counter Terrorism Law 5776-2016 indicating it “contains vague and overbroad
definitions of ‘terrorist organization’ and ‘terrorist act’ and may be used to oppress
and criminalize legitimate political or humanitarian acts, as illustrated by the
designation, in October 2021, of six Palestinian civil society organizations as
terrorist organizations based on secret information.”999
5.65. It also expressed its concern “about the use of secret evidence in counterterrorism
proceedings, which is inaccessible to defendants and their lawyers,
thereby violating their right to a fair trial”, as well as about the fact that the
“amendment No. 30 to the Entry into Israel Law of 2018, providing for the
revocation of permanent residency on the vague ground of ‘breach of allegiance
against the State of Israel’, which is defined as a terrorist act under the Counter
997 “Israel security minister bans Palestinian flag-flying in public”, The Guardian,
9 January 2023 (https://tinyurl.com/mw3ebn5v).
998 Economic and Social Council, Economic and social repercussions of the Israeli occupation
on the living conditions of the Palestinian people in the Occupied Palestinian Territory, including
East Jerusalem, and of the Arab population in the occupied Syrian Golan, 8 June 2022,
A/77/90-E/2022/66, para. 6 (https://undocs.org/A/77/90).
999 Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
5 May 2022, CCPR/C/ISR/CO/5, para. 18 (https://undocs.org/CCPR/C/ISR/CO/5).
292
Terrorism Law, has been used to revoke the permanent residency of Palestinian
residents and human rights defenders advocating for the rights of Palestinians”1000.
5.66. Palestinian political, economic and cultural institutions, particularly in
Jerusalem, have also faced frequent attacks and closure, leading the General
Assembly, most recently in 2021 to “express[] grave concern over the continued
closure of Palestinian institutions in the city”1001. Many of these institutions,
notably the Orient House, have been closed since 2001 despite repeated calls by the
international community for their reopening.
5.67. These attacks are not a new phenomenon. They follow a pattern of
incessant assaults over decades on the Palestinian presence in East Jerusalem. As
remarked already in a United Nations report in 1997:
“Restrictions on civil liberties have also often been imposed on Palestinians,
particularly during the intifadah, such as censorship of Arabic-language
publications, the closing of newspapers and educational, cultural and other
institutions based in East Jerusalem, and the arrest of their
representatives.”1002
5.68. More generally. Israel has actively aimed at suppressing the Palestinian
national movement and disrupting Palestinian political life, including elections. Its assault
against Palestinian leaders and elected representatives1003, including through killing1004,
1000 Ibid.
1001 General Assembly, Resolution 76/12, Jerusalem, 6 December 2021
(https://undocs.org/A/RES/76/12).
1002 United Nations, The Status of Jerusalem, 1997, p. 21 (https://tinyurl.com/24nbfype).
1003 See Security Council, Resolution 1435 (2002), 24 September 2002, preamble (“Gravely
concerned at the reoccupation of the headquarters of the President of the Palestinian Authority in
the City of Ramallah that took place on 19 September 2002 and demanding its immediate end”)
(https://undocs.org/S/RES1435(2002)).
1004 See, e.g., Security Council, Resolution 611 (1988), 25 April 1988, preamble and para. 1
(“Having noted with concern that the aggression perpetrated on 16 April 1988 in the locality of Sidi
Bou Said has caused loss of human life, particularly the assassination of Mr. Khalil al-Wazir” …
“Condemns vigorously the aggression, perpetrated on 16 April 1988 against the sovereignty and
territorial integrity of Tunisia in flagrant violation of the Charter of the United Nations, international
law and norms of conduct”) (https://undocs.org/S/RES/611(1988)).
293
forced exile1005, or arrest1006 has continued over decades.
5.69. As noted by the United Nations Special Rapporteur, the system put in
place by Israel “has allowed punishment of Palestinians for merely expressing their
opinions or dissent, or peacefully opposing the occupation”, adding that
“[c]riminalization and incarceration strip Palestinians of their rights to move freely,
work, gather peacefully, express their identity, culture, opinions, pursue their
education, live their economic, social and political life. The Palestinian people’s
right to self-determination that these restrictions ultimately target, appears as the
ultimate ‘threat’ to be suppressed.”1007
5.70. As stated by forty-seven of the independent Special Procedures
mandates appointed by the Human Rights Council in a joint statement in 2020:
“The United Nations has stated on many occasions that the 53-year-old Israeli
occupation is the source of profound human rights violations against the
Palestinian people. … Above all, the Israeli occupation has meant the denial
of the right of Palestinian self-determination.”1008
5.71. The right of Palestinians to freedom of worship and their cultural
development has also been hindered by Israel. Cultural development is critical to a
sense of identity, belonging, and cohesion amongst a people, and is therefore
essential to their existence and development. The Palestinian people have the
1005 See, e.g., Security Council, Resolution 484 (1980), preamble and para. 3 (“Expressing its
grave concern at the expulsion by Israel of the Mayor of Hebron and the Mayor of Halhoul”,
“[d]eclares it imperative that the Mayor of Hehron and the Mayor of Halhoul be enabled to return
to their homes and resume their responsibilities”) (https://undocs.org/S/RES/484(1980)). See also
Security Council, Resolution 608 (1988), 14 January 1988, preamble and para. 1 (“Expressing its
deep regret that Israel, the occupying Power, has, in defiance of that resolution, deported Palestinian
civilians, “Calls upon Israel to rescind the order to deport Palestinian civilians and to ensure the safe
and immediate return to the occupied Palestinian territories of those already deported”, “Requests
that Israel desist forthwith from deporting any other Palestinian civilians from the occupied
territories”) (https://undocs.org/S/RES/608(1988)). See also Security Council Resolutions 636, 641,
681, 694, 726, 799 deploring and condemning deportation of Palestinian civilians.
1006 See, for example, General Assembly, Resolution 77/247, 30 December 2022 (“Expressing
grave concern that thousands of Palestinians, including many children and women, as well as elected
representatives, continue to be held in Israeli prisons or detention centres under harsh conditions”)
(https://undocs.org/A/RES/77/247).
1007 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 9 June 2023, A/HRC/53/59 (Advance Unedited Version), paras. 33
and 37 (https://tinyurl.com/ynuxb5kv).
1008 “Israeli annexation of parts of the Palestinian West Bank would break international law –
UN experts call on the international community to ensure accountability”, 16 June 2020
(https://tinyurl.com/3jvwmt28).
294
undeniable right to access, take part in and contribute to cultural life1009 as a means
of expressing their collective identity in their own land, without interference1010.
However, Israel has obstructed this by, inter alia, restricting access to religious and
cultural sites, interfering with religious, social and cultural events, and destroying
and/or usurping Palestinian cultural heritage.
5.72. The Israeli occupation has restricted the Palestinian people’s freedom of
movement in a way that restricts their access to religious and cultural sites, as
described in Chapters 3, Part A, and 4. For decades, millions of Muslims and
Christians have been impeded from worshipping at some of the sites they consider
to be their most holy places in the world, especially in Jerusalem1011. Attending
holy rituals at places of worship has been denied or restricted to Palestinians at
specific times, such as Ramadan and Easter1012. Palestinians in Gaza are also
impeded from visiting religious sites in the West Bank, including in East Jerusalem,
Bethlehem and Hebron1013. Restricting access to such venues hinders the cultural
development of the Palestinian people.
5.73. The Israeli occupation has hindered access to education and therefore
cultural development in the Palestinian territory through, for instance, eliminating
Palestinian history in schools1014. Palestinian schools in Jerusalem which do not
adhere to Israeli curriculum policies have also had their licenses revoked1015. More
significantly, as described in Chapter 4, Israeli discriminatory restrictions on
movement have hindered access to education in Palestinian universities. Palestinian
refugees outside of the OPT are denied the right to study in a Palestinian university
in the West Bank or Gaza and Palestinians in Gaza are banned from pursuing
1009 Committee on Economic, Social and Cultural Rights, General comment No. 21, Right of
everyone to take part in cultural life (art. 15, para. 1(a), of the International Covenant on Economic,
Social and Cultural Rights), 21 December 2009, E/C.12/GC/21 (https://undocs.org/E/C.12/GC/21).
1010 General Assembly, Report of the Special Rapporteur on the situation of human rights in
the Palestinian territories occupied since 1967, 21 September 2022, para. 53
(https://undocs.org/A/77/356).
1011 General Assembly, Report of the Special Rapporteur on freedom of religion or belief,
Addendum, Mission to Israel and the Occupied Palestinian Territory, 12 January 2009,
A/HRC/10/8/Add.2, 12 January 2009, para. 26 (https://undocs.org/A/HRC/10/8/Add.2).
1012 Ibid., para. 27; Report of the independent international fact-finding mission to investigate
the implications of the Israeli settlements on the civil, political, economic, social and cultural rights
of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem,
7 February 2013, A/HRC/22/63, para. 60 (https://undocs.org/A/HRC/22/63).
1013 Economic and Social Council, Concluding observations on the fourth periodic report of
Israel, 12 November 2019, E/C.12/ISR/CO/4, para. 70 (https://undocs.org/E/C.12/ISR/CO/4).
1014 General Assembly, Report of the Special Rapporteur on the situation of human rights in
the Palestinian territories occupied since 1967, 21 September 2022, A/77/356, para. 54
(https://undocs.org/A/77/356).
1015 Ibid.
295
education in the West Bank except with Israel’s permission that is nearly impossible
to obtain1016. Attacks by the Israeli military on schools, kindergartens and other
educational facilities, as well as its demolition of educational infrastructure and
facilities in both the West Bank, including East Jerusalem and the Gaza Strip have
also hindered access to education1017.
5.74. As a United Nations independent expert has explained, the right of
peoples to freely pursue their cultural development, as a component of their right
to self-determination, “has a clear link with cultural heritage”1018. Cultural heritage
such as monuments, buildings, museums or religious sites preserve expressions of
the Palestinian people’s cultural identity and history for future generations. The
Human Rights Council has condemned what it has described as the “systematic
destruction” of the cultural heritage of the Palestinian people by Israel1019.
Palestinian venues have been closed down, destroyed, or seized and converted to
Israeli cultural sites1020, as described in Chapter 4. In addition to its assaults on the
tangible cultural heritage of the Palestinian people, Israel has also attacked, usurped
and appropriated their intangible cultural heritage1021.
5.75. Destruction of Palestinian cultural heritage has been particularly
grievous in the Old City of Jerusalem, as described in Chapter 3, Part A. The
destruction has included places on Palestine’s list of national heritage sites, and on
UNESCO’s List of World Heritage in Danger1022. A United Nations independent
fact-finding mission reported that archaeological excavations were being conducted
in and around the Old City of Jerusalem to emphasize Jewish cultural heritage while
undermining Palestinian culture1023. The Palestinian right to self-determination is
1016 See para. 4.163 above.
1017 See para. 4.162 above.
1018 Human Rights Committee, Report of the Independent Expert in the Field of Cultural
Rights, 21 March 2011, A/HRC/17/38, para. 45 (https://undocs.org/A/HRC/17/38).
1019 Human Rights Council, Resolution 16/29, Human rights situation in the Occupied
Palestinian Territory, including East Jerusalem, 13 April 2011, para. 4
(https://undocs.org/A/HRC/RES/16/29).
1020 General Assembly, Report of the Special Rapporteur on the situation of human rights in
the Palestinian territories occupied since 1967, 21 September 2022, A/77/356, paras. 53 and 54
(https://undocs.org/A/77/356).
1021 State of Palestine, Periodic reporting on the Convention for the Safeguarding of the
Intangible Cultural Heritage, 15 December 2017 (https://tinyurl.com/4ndtbx52).
1022 UNESCO, Decision 39 Com 7A.27, Old City of Jerusalem and its Walls (sited proposed
by Jordan) (C 148 rev), 8 July 2015, para. 30 (https://tinyurl.com/y2sdebpu). See also UNESCO,
Decision 44 Com 8C.2, Updated of the List of World Heritage in Danger (Retained Properties)
(https://tinyurl.com/uksh5j9s).
1023 General Assembly, Report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
296
therefore denied by the impairment of, infringement upon, and destruction of,
Palestinian cultural heritage.
5.76. The economic development of the Palestinian people has also been
compromised by the Israeli occupation. The annexation of the West Bank, including
East Jerusalem, and the blockade of the Gaza Strip, the settlements and the Wall
and their associated regime and infrastructure, the fragmentation of the land, the
deprivation of resources, the severe restrictions on freedom and movement of
people and goods, have undermined Palestinian economic development, and have
made the country aid dependent while access to its own land and resources would
allow it to be not only aid independent but to enjoy sustained economic growth. The
UNCTAD reports to date, while examining only a small part of the impact the
occupation has had on the Palestinian economy, have assessed the cost of
occupation at billions of dollars1024. In parallel, UNCTAD has assessed that “the
contribution to the economy of Israel of settlements in so-called Area C and
occupied East Jerusalem is estimated at an average of $ 30 billion per year (constant
2015 dollars). In other words, the cumulative contribution of settlements to the
economy of Israel in 2000-2020 is estimated at $ 628 billion (constant 2015
dollars)”1025.
5.77. This situation has a severely detrimental economic but also social
impact, driving poverty and unemployment. The Economic and Social Council in
its annual resolution on the Economic and Social Repercussions of the Israeli
occupation declared it was:
“Convinced that the Israeli occupation has gravely impeded the efforts to
achieve sustainable development and a sound economic environment in the
Occupied Palestinian Territory, including East Jerusalem … and expressing
grave concern about the consequent deterioration of economic and living
conditions”1026.
5.78. In relation to the Wall built in the OPT and declared illegal by the Court,
the Council emphasized that it was:
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, 7 February 2013, A/HRC/22/63, para. 59 (https://undocs.org/A/HRC/22/63).
1024 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: The
Cost of Restrictions in Area C Viewed from Above, 9 March 2023, UNCTAD/GDS/APP/2022/1,
p. vii (https://tinyurl.com/3uaykkt2).
1025 Ibid.
1026 General Assembly, Economic and Social Council, Resolution 2016/14, 25 July 2016
(https://tinyurl.com/mszkaa2z).
297
“Gravely concerned by the serious repercussions on the economic and
social conditions of the Palestinian people caused by Israel’s construction
of the wall and its associated regime inside the Occupied Palestinian
Territory, including in and around East Jerusalem, and the resulting
violation of their economic and social rights, including the rights to work,
to health, to education, to property, to an adequate standard of living and to
freedom of access and movement”.1027
5.79. Restrictions on freedom of movement, in particular, as described in
Chapter 4, have severely curtailed the access of the Palestinian people to
employment1028. Due to closures and checkpoints, workers in the OPT have been
prevented from reaching their workplaces, which has deprived them of income and
livelihood1029. Palestinian farmers have been victims of violence and intimidation
by Israeli settlers, who have also destroyed, taken over or prevented access to their
crops, particularly, olive trees1030. Inaccessibility to employment has also largely
been caused by the Wall1031. A number of Palestinian businesses were destroyed to
build it. It has cut off Palestinian farmers from their agricultural lands, and other
activities were closed down as the Wall cut off trade between neighbouring
villages1032. In Gaza, fishermen and farmers have suffered and businesses and
1027 Ibid.
1028 General Assembly, Report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, 7 February 2013, A/HRC/22/63, para. 73 (https://undocs.org/A/HRC/22/63).
1029 Economic and Social Council, Concluding Observations of the Committee on Economic,
Social and Cultural Rights, 4 December 1998, E/C.12/1/Add.27, para. 18
(https://undocs.org/E/C.12/1/Add.27).
1030 General Assembly, Report of the independent international fact-finding mission to
investigate the implications of the Israeli settlements on the civil, political, economic, social and
cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including
East Jerusalem, 7 February 2013, A/HRC/22/63, para. 54 (https://undocs.org/A/HRC/22/63). See
also International Labour Organisation, Report of the Director-General, Appendix: The situation of
workers of the occupied Arab territories, International Labour Conference, 110th Session, 2022,
ILC.110/DG/APP, para. 77 (https://tinyurl.com/22h833cw).
1031 Committee on the Elimination of Racial Discrimination, Concluding Observations,
14 June 2007, CERD/C/ISR/CO/13, para. 34. See also Human Rights Council, Report of the Special
Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967,
12 August 2022, A/HRC/49/87, para. 57 (b) (https://undocs.org/A/HRC/49/87).
1032 Report of the independent international fact-finding mission to investigate the implications
of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian
people throughout the Occupied Palestinian Territory, including East Jerusalem, 7 February 2013,
A/HRC/22/63, paras. 89-91 (https://undocs.org/A/HRC/22/63).
298
industries have been shut down or severely downsized due to the blockade.1033 As
a result of such difficult conditions, the rate of unemployment in the OPT is over
50%1034. The obstacles to exercising such rights have deeply set back Palestinian
economic development and growth, and national prosperity. Along with controlling
their land and natural resources, this external interference hinders their economic
self-determination.
5.80. As noted by UNCTAD:
“Settlements constrain the space available for Palestinian socioeconomic
development. They impoverish the Palestinian people by dispossessing
them of their land and natural resources, and additional Palestinian land is
confiscated for the infrastructure and road networks that serve the
settlements.”1035
5.81. The Economic and Social Council has also addressed the socioeconomic
impact of forced displacement and dispossession of Palestinian civilians,
notably in and around East Jerusalem:
“Expressing grave concern also over the continuing forced displacement
and dispossession of Palestinian civilians, including the Bedouin
community, due to the continuing and intensifying policy of home
demolitions, evictions and revocation of residency rights in and around
occupied East Jerusalem, as well as measures to further isolate the city from
its natural Palestinian environs, which have seriously exacerbated the
already critical socioeconomic situation being faced by the Palestinian
population”1036.
5.82. The Palestinian people’s right to pursue their social development is
another critical component of their right to self-determination, as this right equips
1033 Committee on Economic, Social and Cultural Rights, Concluding Observations on the
third periodic report of Israel, 16 December 2011, E/C.12/ISR/CO/3, para. 12
(https://undocs.org/E/C.12/ISR/CO/3).
1034 Committee on Economic, Social and Cultural Rights, Concluding Observations on the
second periodic report of Israel, 26 June 2003, E/C.12/1/Add.90, para. 20
(https://undocs.org/E/C.12/1/Add.90).
1035 UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian People: The
Cost of Restrictions in Area C Viewed from Above, 9 March 2023, UNCTAD/GDS/APP/2022/1,
p. 9 (https://tinyurl.com/3uaykkt2).
1036 Economic and Social Council, Resolution 2016/14, Economic and social repercussions of
the Israeli occupation on the living conditions of the Palestinian people in the Occupied Palestinian
Territory, including East Jerusalem, and the Arab population in the occupied Syrian Golan,
25 July 2016 (https://undocs.org/E/C.12/1/Add.90).
299
a people with the resources necessary for their survival and well-being – such as
access to healthcare, food and adequate housing. However, the pursuit of social
development of the Palestinian people has been severely obstructed by Israel. The
Economic and Social Council has declared it was:
“Gravely concerned about various reports of the United Nations and
specialized agencies regarding the substantial aid dependency caused by
prolonged border closures, inordinate rates of unemployment, widespread
poverty and severe humanitarian hardships, including food insecurity and
rising health-related problems, including high levels of malnutrition, among
the Palestinian people, especially children, in the Occupied Palestinian
Territory, including East Jerusalem”1037.
5.83. Access to healthcare is essential for a people to reach its full potential.
However, the WHO has described the health system in the OPT, including East
Jerusalem, as “fragmented and fragile”1038, attributing this to several features of the
Israeli occupation. Chapter 4 describes this (see paras. 4.166-4.171 above, in
particular).
5.84. Access to food is crucial as it promotes health, reduces poverty, improves
educational prospects and contributes to economic development. However,
Palestinians in the OPT “suffer from impingement of their … access to …
food”1039. Indeed, food insecurity amongst the Palestinians has been increasing1040
and Israel’s blockade of Gaza and other restrictive measures have aggravated
malnutrition of the Palestinian population1041. This food insecurity inhibits the
Palestinian people from pursuing social development necessary to their selfdetermination.
5.85. Finally, access to adequate housing is a fundamental aspect of social
development. Here, the Palestinian people’s right has been significantly impaired
1037 Economic and Social Council, Resolution 2022/22, Economic and social repercussions of
the Israeli occupation on the living conditions of the Palestinian people in the Occupied Palestinian
Territory, including East Jerusalem, and the Arab population in the occupied Syrian Golan,
1 August 2022 (https://undocs.org/E/RES/2022/22).
1038 World Health Organisation, Right to health in the occupied Palestinian territory: 2018,
2019, p. 18 (https://tinyurl.com/ycxvxbsk).
1039 Committee on Economic, Social and Cultural Rights, Concluding Observations on the
second periodic report of Israel, 26 June 2003, E/C.12/1/Add.90, para. 19
(https://undocs.org/E/C.12/1/Add.90).
1040 Committee on Economic, Social and Cultural Rights, Concluding Observations on the
third periodic report of Israel, 16 December 2011, E/C.12/ISR/CO/3, para. 28
(https://undocs.org/E/C.12/ISR/CO/3).
1041 Israel’s blockade of Gaza is addressed in Chapter 4, paras.4.192-4.202 above.
300
by Israel’s forced evictions, demolition orders, seizure and destruction of property,
discriminatory planning and building regulations that limit construction of homes,
and violence and intimidation from settlers, described in Chapter 4 (see
paras. 4.128-4.144 above, in particular).
Conclusion
5.86. Taken alone, each of the actions by, or attributable to, Israel as described
above is sufficient to establish a serious breach by Israel of the Palestinian people’s
right to self-determination. Collectively, in the form of Israel’s seizure and
annexation of Palestinian land and displacement and subjugation of the Palestinian
people through racial discrimination, persecution and apartheid – of which all of
these actions form an integral and indissoluble part – they amount to a manifest,
grave, longstanding and ongoing violation of the right to self-determination, one of
the most egregious such violations in contemporary history.
301
Chapter 6.
THE UNLAWFULNESS OF ISRAEL’S OCCUPATION OF
THE PALESTINIAN TERRITORY
6.1. In its resolution 77/247 of 30 December 2022, the General Assembly
asked the Court, in part: “How do the policies and practices of Israel referred to in
paragraph 18 (a) above affect the legal status of the occupation?” Chapters 3
through 5 have addressed these policies and practices, namely:
(a) 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”;
(b) Israel’s adoption of “discriminatory legislation and measures”, namely its
systematic racial discrimination, tantamount to apartheid, against the
Palestinian people, and its systematic violation of their fundamental rights; and
(c) “the ongoing violation by Israel of the right of the Palestinian people to selfdetermination”.
6.2. These Chapters have shown that Israel’s 56-year occupation of Palestinian
territory is a continuing, gross and systematic breach of its legal obligations under
the United Nations Charter, general international law, international humanitarian
law, international human rights law, and customary international law, including the
violation of at least three peremptory norms of general international law of a jus
cogens and erga omnes character. The evidence adduced in this Written Statement
demonstrates overwhelmingly that Israel has annexed and plans to continue to
annex Jerusalem and the rest of the West Bank; that it has imposed systematic and
comprehensive racial discrimination tantamount to apartheid against the Palestinian
people based on their race; and that it has denied their right to self-determination in
their own land in an attempt to extinguish that inalienable right permanently.
6.3. More particularly, all available evidence – including as consistently and
openly furnished by generations of Israeli leaders over five decades – establishes
that Israel itself does not regard its presence in the OPT as a temporary occupation.
Its actions and its words establish that it regards its rule over the OPT and the
Palestinian people as permanent and irreversible. This is demonstrated by:
302
(a) Its annexation of East Jerusalem and the rest of the West Bank as described in
Chapter 3, with the express purpose, as consistently declared and pursued by
successive Israeli governments over the last half century, of maintaining
permanent possession and dominion over the OPT.
(b) Its imposition and maintenance of systematic racial discrimination meeting all
the defining elements of apartheid, and its denial, on the basis of race, of the
fundamental rights to which the Palestinian people are entitled under
international law, as shown in Chapter 4.
(c) Its denial, and attempted extinction, of the right of the Palestinian people to
self-determination, inter alia, by denying that there is a “Palestinian people”
and by declaring publicly that only one group has the right to exercise selfdetermination
in the land between the Jordan river and the Mediterranean sea
– Jewish Israelis – and that no Palestinian State will ever be allowed to exist
there, as shown in Chapters 3, 4 and 5.
6.4. This Chapter concludes Part One of this Written Statement by
demonstrating that, in view of these policies and practices, Israel’s occupation of
the OPT is in and of 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, derogation from which is not
permitted. It is impossible to distinguish between Israel’s occupation of the OPT
and its serious breaches of peremptory norms of general international law therein,
which are reciprocal in nature, organically interrelated and mutually reinforcing1042.
I. Israel’s Occupation of the Palestinian Territory Seriously Breaches
Peremptory Norms of General International Law
6.5. Israel’s occupation of the OPT seriously breaches at least three
peremptory norms of general international law derogation from which is not
permitted. As identified in Chapter 2, these are: (1) the inadmissibility of the
acquisition of territory through the threat or use of force; (2) the prohibition against
racial discrimination and/or apartheid; and (3) the obligation to respect the right of
peoples to self-determination.
1042 In line with the questions submitted by the General Assembly to the Court, the State of
Palestine limits its argument on the illegality of the occupation to Israel’s denial of the right of the
Palestinian people to self-determination, its prolonged occupation, settlement, and annexation of
Palestinian territory, as well as its imposition of related discriminatory laws and measures. This is
without prejudice to the State of Palestine’s position that Israel’s occupation is also illegal because
it derives from an illegal use of force in 1967.
303
6.6. As higher order norms, peremptory norms embody “three essential
characteristics” according to the ILC: (1) they protect values fundamental to the
international legal order “shared by the international community as a whole”; (2)
they are “universally applicable” by virtue of their non-derogability, since States
cannot derogate from them by creating their own special rules that conflict with
them; and (3) they are “hierarchically superior to other norms of international law
not having the same character”1043, entailing obligations of an erga omnes
character1044.
6.7. Evidence of the jus cogens nature of each of the overarching norms at
issue in these proceedings is found in the non-exhaustive list of peremptory norms
of general international law adopted by the ILC in 20221045.
6.8. On the matter of the inadmissibility of the acquisition of territory through
the threat or use of force, it has been shown that Israel’s 56-year occupation of the
OPT cannot reasonably be regarded as temporary military rule but has rather
evolved into a situation of outright annexation and colonial conquest, absolutely
prohibited under international law. As noted by Sir Ilan Brownlie, “there is no
magic in the formal declaration of sovereignty by a government” over territories it
intends to annex. Rather, annexation is a question of fact1046. And the facts
presented in this Written Statement indisputably point only in one direction: that of
Israel’s annexation of Palestinian territory in violation of one of the most
fundamental norms of international law, the inadmissibility of the acquisition of
territory by force, with the intention of permanent colonization and control.
6.9. The published Guidelines of Israel’s government, which set out its official
policies and priorities, assert that: “The Jewish people have an exclusive and
1043 Ibid., pp. 18 and 22-24, paras. (2)-(3), (10) and (14) of the commentary to Conclusion 2.
1044 Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of
General International Law (Jus Cogens), Conclusion 2 (Nature of peremptory norms of general
international law (jus cogens)), in Report of the International Law Commission, Seventy-third
session (18 April–3 June and 4 July–5 August 2022), A/77/10, p. 11, para. 43. On the special
character of these serious breaches, see paras. 6.12-6.19 below.
1045 Annex to the Draft Conclusions, ibid., p. 16, where, in addition to the “prohibition of
aggression” and the “right of self-determination”, the ILC lists the “prohibition of racial
discrimination and apartheid”, “the prohibition of crimes against humanity” and “the basic rules of
international humanitarian law” as jus cogens norms. The inadmissibility of acquisition of territory
through the threat or use of force is a corollary of the prohibition of aggression. According to the
Friendly Relations Declaration, the Assembly appears to be of the view that there is little, if any,
normative difference between the prohibition of aggression and its corollary prohibiting the
acquisition of territory through the threat or use of force.
1046 I. Brownlie, Principles of Public International Law, 6th edn. (Oxford University Press,
2003), p. 140.
304
inalienable right to all parts of the Land of Israel. The government will promote and
develop the settlement of all parts of the Land of Israel – in the Galilee, the Negev,
the Golan and Judea and Samaria.”1047 The evidence demonstrates that this
statement is the culmination of decades of Israeli policies and practices that have
been openly pursued by every Israeli government since 1967, all of which have
been aimed at solidifying and making permanent Israel’s conquest of the OPT while
simultaneously refusing to restore the territory to its rightful sovereign, the
Palestinian people. The Israeli occupation is thus tantamount to, and
indistinguishable from, annexation1048.
6.10. Likewise, on the matter of race discrimination, it has been demonstrated
that, since 1967, Israel has established a deeply entrenched system of racial
discrimination in the OPT. This system openly and unapologetically distinguishes
along racial lines between the Palestinian population and the Israeli settler
population that has been transferred to the OPT in violation of international law. It
has also been demonstrated that this regime of racial discrimination has assumed
an apartheid character as laid out in relevant customary and conventional
international law. As recently noted by the United Nations Special Rapporteur:
“an institutionalized regime of systematic racial oppression and
discrimination has been established [by Israel in the OPT]. Israeli Jews and
Palestinian Arabs in East Jerusalem and the West Bank live their lives under
a single regime that differentiates its distribution of rights and benefits on
the basis of national and ethnic identity, and that ensures the supremacy of
one group over, and to the detriment of, the other. … The differences in
living conditions and citizenship rights and benefits are stark, deeply
discriminatory and maintained through systematic and institutionalized
oppression. … [T]his system of alien rule has been established with the
intent to maintain the domination of one racial-national-ethnic group over
another.”1049
6.11. On the matter of self-determination, it has been demonstrated in the
preceding Chapter that since 1948, Israel has not only denied the right of the
Palestinian people to self-determination, but has actively tried to suppress and
extinguish it. Even after the Court’s ruling in 2004 that Israel is under an obligation
1047 “Judicial reform, boosting Jewish identity: the new coalition’s policy guidelines”, The
Times of Israel, 28 December 2022 (https://tinyurl.com/2mne27kj). See also Vol. II, Annex 12.
1048 Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 12 August 2022, A/HRC/49/87, p. 17, para. 51 (https://undocs.org/
A/HRC/49/87).
1049 Ibid., pp. 17-18, paras. 53-54.
305
erga omnes to respect the right of the Palestinian people to self-determination, Israel
has in fact escalated its policies and practices with the specific intention of
permanently precluding the exercise of this right by the Palestinian people,
including their right to independence of their State. In line with the Friendly
Relations Declaration, every State has the duty to refrain from any forcible action
which deprives peoples of their right to self-determination and freedom and
independence. The evidence presented in this Written Statement demonstrates that
Israel’s prolonged occupation of the OPT, its annexation of Palestinian territory,
and its subjugation of the Palestinian people by its racial discrimination against
them tantamount to apartheid and denial of their fundamental rights amount to the
gravest of violations to their right to self-determination, guaranteed to them under
international law.
II. Israel’s Occupation of the OPT Is Indistinguishable from Its Serious
Breaches of Peremptory Norms of General International Law
6.12. An occupying Power conducting its occupation of foreign territory in
good faith would strictly adhere to the fundamental principles at the core of
international law. None of these fundamental principles have been observed by
Israel. In particular, from the outset Israel has treated the OPT as a fruit of conquest,
and it has defied the clear direction of the international community – expressed over
five decades through countless resolutions of the Security Council, the General
Assembly and the Human Rights Council and its predecessor – that the Israeli
colonization and annexation of Palestinian territory are illegal and the occupation
must be brought to an end; that the systematic racial discrimination and wholesale
violation of fundamental principles of human rights and humanitarian law are
illegal and must be brought to an end; and that the denial of the Palestinian people’s
right to self-determination is illegal and must be brought to an end. Israel has
continued to violate the applicable legal rules and to act in contempt of such
international demands based on those rules, perpetrating its breaches with impunity.
All of this establishes that Israel has conducted the occupation in violation of its
solemn obligations under international law.
6.13. Already in 1977, ten years into the occupation, the General Assembly
declared that it was:
“Deeply concerned that the Arab territories occupied since 1967 have
continued, for more than ten years, to be under illegal Israeli occupation and
306
that the Palestinian people, after three decades, are still deprived of the
existence of their inalienable national rights.”1050
6.14. By 1981, the General Assembly began calling for Israel’s “immediate,
unconditional and total withdrawal” from the OPT1051. It also stated repeatedly that
it was “[d]eeply concerned that the Arab territories occupied since 1967 have been
under continued illegal Israeli military occupation”1052 and unequivocally “called
upon Israel to put an end to its illegal occupation of the Arab territories and to
withdraw from all those territories”1053.
6.15. The Security Council, in its resolution 476 (1980), expressed its alarm
over the prolonged duration and severity of Israel’s then 13-year-old occupation
and the “overriding necessity” to end it, and it “deplore[d]” Israel’s persistent
defiance of its own resolutions and those of the General Assembly. The Security
Council declared that it:
“1. Reaffirms the overriding necessity to end the prolonged occupation of
Arab territories occupied by Israel since 1967, including Jerusalem;
2. Strongly deplores the continued refusal of Israel, the occupying Power,
to comply with the relevant resolutions of the Security Council and the
General Assembly”1054.
6.16. If the General Assembly considered the Israeli military occupation as
illegal and the Security Council reaffirmed the overriding necessity to end the
prolonged occupation when the occupation had lasted 10-13 years, there is no doubt
its unlawfulness is even more flagrant now that it has entered its 57th year. Indeed,
four decades later, Israel continues to entrench its occupation instead of heeding the
calls of the Security Council and the General Assembly to end it, in compliance
with the United Nations Charter and international law.
1050 General Assembly, Resolution 32/20, 25 November 1977, preamble
1051 General Assembly, Economic and Social Council Resolution 36/226, 17 December 1981,
para. 1.
1052 See, e.g., General Assembly, Resolutions 32/20, 25 November 1977; 33/29,
7 December 1978; 34/70, 6 December 1979; 35/122 E, 11 December 1980; 35/207,
16 December 1980; and 36/147 E, 16 December 1981.
1053 See, e.g., General Assembly, Resolutions 3414 (XXX), 5 December 1975, 31/61,
9 December 1976, 32/20, 25 November 1977, 33/28 and 33/29, 7 December 1978, 34/70,
6 December 1979, and 35/122 E, 11 December 1980.
1054 Security Council, Resolution 476 (1980), 30 June 1980, paras. 1 and 2.
307
6.17. The evidence overwhelmingly demonstrates that Israel is not acting as
an occupying Power who is responsible for certain violations in the conduct of its
occupation, while being otherwise respectful of its obligations under international
law to the protected population of the OPT. Rather, the evidence demonstrates that
these are the acts of a foreign acquisitive power that has forcibly and openly
transformed its occupation of another people’s territory into outright conquest and
colonization of that territory, and suppression and attempted extinction of the rights
of the occupied people it is obligated to protect. This has led the General Assembly
to consistently reaffirm it was “[c]onvinced that occupation itself represents a grave
violation of human rights”1055.
6.18. In view of Israel’s continuing, gross and systematic breach of its
obligations in respect of the OPT for over five decades, the occupation itself is
indistinguishable from the breaches of the abovementioned peremptory norms in
the context of that occupation. Indeed, the evidence demonstrates that these
violations are not merely the result of the occupation but are rather the foundation
upon which the occupation rests. They are its essential structural features, not its
incidental byproducts, all of which are rooted in the singular unlawful goal of
maintaining permanent Israeli dominion over the OPT, pursued by Israel since
1967, and relegating the Palestinians it has not been able to displace to inferior
status in their own land, in perpetuity, deprived of their inalienable rights, including
their right to self-determination.
6.19. Because Israel’s prolonged 56-year occupation of the OPT is structurally
and existentially reliant upon and inseparable from its egregious violations of
peremptory norms of general international law, derogation from which is not
permitted, the occupation itself must be regarded as illegal, with all relevant legal
consequences that attach under the law of international responsibility. This means
that it must be brought to an “immediate, unconditional and total” end1056.
1055 For the most recent example, see General Assembly, Resolution 76/80, 9 December 2021
(https://undocs.org/A/RES/76/80).
1056 General Assembly, Resolution 36/147 E, 16 December 1981. For similar calls by the
Assembly, see General Assembly, Resolutions 36/226 A, 17 December 1981; 37/123 F,
20 December 1982; 38/180 D, 19 December 1983; 39/146 A, 14 December 1984; 40/168 A,
16 December 1985; 41/162 A, 4 December 1986; 42/209 B, 11 December 1987; 43/54 A,
6 December 1988; 44/40 A, 4 December 1989; 45/83 A, 13 December 1990; and 46/82 A,
16 December 1991.
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Chapter 7.
LEGAL CONSEQUENCES
7.1. This Chapter addresses the legal consequences for Israel and for Third
States and International Organizations, notably the United Nations, which arise
from the internationally wrongful acts detailed in Chapters 3 to 6 above.
7.2. Part A is directed at the legal consequences for Israel. Part B is focused
on the legal consequences for Third States and International Organizations,
including the United Nations.
Part A.
ISRAEL’S OBLIGATIONS RESULTING FROM ITS
INTERNATIONALLY WRONGFUL ACTS
7.3. In accordance with the ILC Articles on State Responsibility, the
expression “Israel’s internationally wrongful acts” means all breaches of Israel’s
international obligations attributable to it1057.
7.4. The acts attributable to Israel include the conduct of any State organ,
whether the organ exercises legislative, executive, judicial or any other functions
(Article 4), and of a person or entity which is not an organ of the State, but which
is empowered by the law of that State to exercise elements of the governmental
authority, provided the person or entity is acting in that capacity in the particular
instance (Article 5).
7.5. The Articles on State Responsibility also recognize that the responsibility
of the State may be engaged where private persons act on the instructions of, or
under the direction or control of, the State (Article 8) or if their “[c]onduct [is]
acknowledged and adopted by a State as its own” (Article 11). This is undoubtedly
the case for the illegal Israeli settlements established throughout East Jerusalem and
the rest of the West Bank whose creation, continued existence and expansion have
1057 See Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC
Yearbook, 2001, Vol. II, Part Two, p. 34, Article 2 (Elements of an internationally wrongful act of
a State) (hereinafter: “Articles on State Responsibility”).
310
been planned, endorsed, encouraged, advanced, funded and supported in a myriad
of ways by the Israeli Government1058. Similarly, Israel’s responsibility is entailed
for not having prevented “the effects of the conduct of private parties, if it failed to
take necessary measures to prevent those effects”1059 or to punish the
wrongdoers1060. Thus, Israel is also responsible for the widespread violence which
Israeli settlers have inflicted with impunity on Palestinians in the OPT1061.
7.6. As the ILC’s commentary on Article 28 of the Articles on State
Responsibility explains, “[t]he core legal consequences of an internationally
wrongful act … are the obligations of the responsible State to cease the wrongful
conduct (art. 30) and to make full reparation for the injury caused by the
internationally wrongful act (art. 31)”1062. Accordingly, Israel is required to cease
its breaches of international law (I) and to make full reparation for the injury
suffered by the State of Palestine and the Palestinian people (II).
I. Israel is under an Obligation to Cease its Wrongful Conduct and
to Give Assurances and Guarantees of Non-Repetition
7.7. Article 30 of the Articles on State Responsibility provides:
“The 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.”
7.8. The present Section therefore deals with the obligation of Israel to cease
its wrongful conduct (A) and, since there can be no doubt that the circumstances of
1058 See Chapter 3B, Israel’s Annexation of the West Bank, paras. 3.179-3.193. See also, for
example, ICRC, International Humanitarian Law Databases, Responsibility for violations of
International Humanitarian Law, Rule 149, paras. (c) and (d) (“(c) violations committed by persons
or groups acting in fact on its instructions, or under its direction or control; and (d) violations
committed by private persons or groups which it acknowledges and adopts as its own conduct”)
(https://tinyurl.com/4n7y4k8c).
1059 Articles on State Responsibility, p. 37, Art. 3, para. (6).
1060 See Questions relating to the Obligation to Prosecute or Extradite, Judgment, I.C.J.
Reports 2012, p. 460, para. 115.
1061 See Chapter 3A, paras. 3.114-3.117 and Chapter 4, para. 4.184-4.191.
1062 ILC Yearbook, 2001, Vol. II, Part Two, p. 87, para. (2) of the commentary.
311
the case so require, with the related obligation to offer appropriate assurances and
guarantees of non-repetition (B).
A. OBLIGATION OF CESSATION
1. The Applicable Principles
7.9. As the Court explained in the Wall Opinion:
“The obligation of a State responsible for an internationally wrongful act to
put an end to that act is well established in general international law, and the
Court has on a number of occasions confirmed the existence of that
obligation.”1063
7.10. The cessation of an internationally wrongful act is ipso facto required
whenever an internationally wrongful act has a continuing (or composite)1064
character. The duty to cease arises as a necessary and inevitable consequence of the
continuing commission of that wrongful act and (provided the obligation violated
is still in force at the time when the breach is found) is not subject to any other
condition. As the Arbitral Tribunal explained in the Rainbow Warrior case:
“The authority to issue an order for the cessation or discontinuance of a
wrongful act or omission results from the inherent powers of a competent
tribunal which is confronted with the continuous breach of an international
obligation which is in force and continues to be in force. The delivery of
such an order requires, therefore, two essential conditions intimately linked,
namely that the wrongful act has a continuing character and that the violated
rule is still in force at the time in which the order is issued.”1065
1063 Wall Opinion, p. 197, para. 150. See also, mentioned by the Court in the same paragraph:
“Military and Paramilitary Activities in and against Nicaragua, Merits, Judgment, I.C.J. Reports
1986, p. 149; United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports
1980, p. 44, para. 95; Haya de la Torre, Judgment, I.C.J. Reports 1951, p. 82)”.
1064 See the Articles on State Responsibility, p. 62, Article 15:
“1. The breach of an international obligation by a State through a series of actions or
omissions defined in aggregate as wrongful occurs when the action or omission occurs
which, taken with the other actions or omissions, is sufficient to constitute the wrongful
act.
2. In such a case, the breach extends over the entire period starting with the first of the
actions or omissions of the series and lasts for as long as these actions or omissions are
repeated and remain not in conformity with the international obligation.”
1065 See, e.g., Case concerning the difference between New Zealand and France concerning
the interpretation or application of two agreements concluded on 9 July 1986 between the two States
312
7.11. The Court’s case-law is in full accord with this statement. In its 1951
Judgment in Haya de la Torre, the Court stated that:
“In its [previous] Judgment of November 20th, the Court held that the grant
of asylum by the Government of Colombia to Haya de la Torre was not
made in conformity with Article 2, paragraph 2 (‘First’), of the Convention.
This decision entails a legal consequence, namely that of putting an end to
an illegal situation: the Government of Colombia which had granted the
asylum irregularly is bound to terminate it. As the asylum is still being
maintained, the Government of Peru is legally entitled to claim that it should
cease.”1066
7.12. In the Chagos Advisory Opinion, the Court explained that:
“The Court having found that the decolonization of Mauritius was not
conducted in a manner consistent with the right of peoples to selfdetermination,
it follows that the United Kingdom’s continued
administration of the Chagos Archipelago constitutes a wrongful act
entailing the international responsibility of that State …[1067] It is an
unlawful act of a continuing character which arose as a result of the
separation of the Chagos Archipelago from Mauritius.
Accordingly, the United Kingdom is under an obligation to bring an end to
its administration of the Chagos Archipelago as rapidly as possible, thereby
enabling Mauritius to complete the decolonization of its territory in a
manner consistent with the right of peoples to self-determination.”1068
7.13. And, in the Wall Opinion, the Court stated that:
“Since the Court has concluded that the construction of the wall in the
Occupied Palestinian Territory, including in and around East Jerusalem, and
its associated régime, are contrary to various of Israel's international
obligations, it follows that the responsibility of that State is engaged under
international law.”1069
and which related to the problems arising from the Rainbow Warrior Affair, Decision,
30 April 1990, Reports of International Arbitral Awards (RIAA), Vol. XX, pp. 270-271, para. 114.
1066 Haya de la Torre, Judgment, I.C.J Reports 1951, p. 82 (emphasis added).
1067 The Court refers to “Corfu Channel”, Merits, Judgment, I.C.J. Reports 1949, p. 23;
Gabčíkovo-Nagymaros Project, Judgment, I.C.J. Reports 1997, p. 38, para. 47; see also Article 1 of
the Articles State Responsibility.
1068 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, I.C.J. Reports 2019, pp. 138-139, paras. 177-178 (emphasis added).
1069 Wall Opinion, p. 197, para. 147.
313
The Court went on to explain that Israel’s responsibility entailed, amongst other
things:
“an obligation to put an end to the violation of its international obligations
flowing from the construction of the wall in the Occupied Palestinian
Territory”1070.
7.14. The well-established obligation to cease a continuous internationally
wrongful act is inseparable from the principle of the “Continued duty of
performance” embodied in Article 29 of the Articles on State Responsibility. This
provides that:
“The legal consequences of an internationally wrongful act under [Part II
on the ‘Content of the Responsibility of a State’] do not affect the continued
duty of the responsible State to perform the obligation breached.”
7.15. In line with this principle, the Court has repeatedly called upon States to
cease committing an internationally wrongful act and to comply with their duty to
perform the obligation of which they are in breach.
7.16. It must also be noted that, “[u]nlike restitution, cessation is not subject
to limitations relating to proportionality”1071.
2. Israel’s Duty To Cease its Wrongful Acts
7.17. One of the main characteristics of the internationally wrongful acts
attributable to Israel is their continuous nature.
7.18. As shown in the previous Chapters, Israel’s internationally wrongful acts
are manifold and diverse in nature.
7.19. They relate to Israel’s colonization of the OPT with hundreds of Israeli
settlements and hundreds of thousands of Israeli settlers, and its annexation of
Jerusalem and the rest of the West Bank; Israel’s racial discrimination and denial
of fundamental rights of the Palestinian people tantamount to apartheid; and its
denial over decades of the right of the Palestinian people to self-determination.
Israel is therefore under an obligation to cease these wrongful acts.
1070 Ibid., p. 197, para. 150. See also ibid., pp. 197-198, para. 151.
1071 Articles on State Responsibility, p. 89, para. (7) of the commentary on Article 30.
314
7.20. Israel’s wrongful acts are inseparable from, and are inherent to its
occupation of the Palestinian territory, which, as a consequence of these breaches,
is unlawful in the present circumstances1072 and which must be characterized,
without the shadow of a doubt, as a “breach of an international obligation by an act
of a State having a continuing character” within the meaning of the 2001 ILC
Articles1073.
7.21. Since there is no question that the obligations breached by Israel are still
in force, there can be no doubt that Israel is under an obligation to cease –
immediately, fully and permanently – all of its breaches of those obligations. Given
the length, scope, nature and character of the breaches of Israel’s international
obligations by its unlawful occupation of the Palestinian territory, the cessation of
these wrongful acts, including the illegal occupation itself, is essential.
7.22. The General Assembly has repeatedly called upon Israel to put an end to
the illegal occupation of the OPT. As early as 1970, in resolution 2628 (XXV), it
“[r]eaffirm[ed] that the acquisition of territories by force is inadmissible and that,
consequently, territories thus occupied must be restored”1074. In 1977, the General
Assembly adopted resolution 32/20 in which it stated that it was “[d]eeply
concerned that the Arab territories occupied since 1967 have continued, for more
than ten years, to be under illegal Israeli occupation and that the Palestinian people,
after three decades, are still deprived of the exercise of their inalienable national
rights”1075. In resolution 44/42 adopted in 1989, the General Assembly stressed the
necessity of “the withdrawal of Israel from the Palestinian territory occupied
since 1967, including Jerusalem, and from the other occupied Arab territories”1076.
Likewise, in 2000, the General Assembly stressed again “the need for … (b) The
withdrawal of Israel from the Palestinian territory occupied since 1967”1077. Most
recently, in the present Request for an Advisory Opinion, the General Assembly
demanded once again that:
“Israel, the occupying Power, cease all of its settlement activities, the
construction of the wall and any other measures aimed at altering the
character, status and demographic composition of the Occupied Palestinian
Territory, including in and around East Jerusalem, all of which, inter alia,
1072 See above, Chapter 6, paras. 6.12-6.19.
1073 See Articles on State Responsibility, Article 14, p. 59.
1074 General Assembly, Resolution 2628 (XXV), 4 November 1970, para. 1.
1075 General Assembly, Resolution 32/20, 25 November 1977, preamble. See also General
Assembly, Resolutions 33/29, 7 December 1978; 34/70, 6 December 1979; 35/122 E,
11 December 1980; 35/207, 16 December 1980; 36/147E, 16 December 1981.
1076 General Assembly, Resolution 44/42, 6 December 1989.
1077 General Assembly, Resolution 55/55, 1 December 2000.
315
gravely and detrimentally impact the human rights of the Palestinian people,
including their right to self-determination, and the prospects for achieving
without delay an end to the Israeli occupation that began in 1967 and a just,
lasting and comprehensive peace settlement between the Palestinian and
Israeli sides, and calls for the full respect and implementation of all relevant
General Assembly and Security Council resolutions in this regard, including
Security Council resolution 2334 (2016) of 23 December 2016.”1078
7.23. The General Assembly called once again the same year for, inter alia,
“[t]he withdrawal of Israel from the Palestinian territory occupied since 1967,
including East Jerusalem”1079.
7.24. Similar concerns and demands have been expressed by the Security
Council. For example, in 1967 it adopted resolution 242 which emphasised the need
for “[w]ithdrawal of Israel armed forces from territories occupied in the recent
conflict”1080. In 1980, it adopted resolution 471 which stressed “the overriding
necessity to end the prolonged occupation of Arab territories occupied by Israel
since 1967, including Jerusalem”1081. And in resolution 2334, adopted in 2016, the
Security Council “[c]ondemn[ed] all measures aimed at altering the demographic
composition, character and status of the Palestinian Territory occupied since 1967,
including East Jerusalem, including, inter alia, the construction and expansion of
settlements, transfer of Israeli settlers” and “[d]emand[ed] that Israel immediately
and completely cease all settlement activities in the occupied Palestinian territory,
including East Jerusalem, and that it fully respect all of its legal obligations in this
regard”1082 and “[u]rge[d] in this regard the intensification and acceleration of
international and regional diplomatic efforts and support aimed at achieving,
without delay … an end to the Israeli occupation that began in 1967”1083.
7.25. Despite these and numerous other United Nations resolutions and the
Court’s call for their implementation by the Parties, Israel has still not ended its
occupation of the OPT1084.
1078 General Assembly, Resolution 77/247, 30 December 2022, para. 6 (emphasis added). See
also among numerous resolutions, General Assembly, Resolution 75/172, 16 December 2020 or
General Assembly, Resolution 73/255, 20 December 2018.
1079 General Assembly, Resolution 77/25, 6 December 2022, para. 1.
1080 Security Council, Resolution 242, 22 November 1967. In its French version, the same
resolution mentions the “retrait des forces israéliennes des territoires occupés”.
1081 Security Council, Resolution 471 (1980), 5 June 1980, para. 6. See also, Security Council,
Resolution 2334 (2016), 23 December 2016, para. 9.
1082 Security Council, Resolution 2334 (2016), 23 December 2016.
1083 Ibid. (emphasis added).
1084 See Wall Opinion, pp. 197-201, paras. 150-162.
316
7.26. The conclusion is clear: the first and most indisputable consequence of
Israel’s violations of numerous rules and principles of international law – including
fundamental jus cogens norms – is that Israel must as rapidly as possible1085 and
without further delay1086 put an end to those violations. Most importantly, this
means that Israel must “immediately” and “unconditionally” withdraw from the
whole of the OPT1087. This means, inter alia, that Israel must abandon its policy of
annexing Jerusalem and the rest of the West Bank, dismantle its illegal settlements
and infrastructure on the Palestinian territory, end its blockade of the Gaza Strip,
revoke all legislation and measures that discriminate against the Palestinian people,
and refrain from further violation of the fundamental rights of the Palestinian people
under international law, including their right to self-determination1088.
7.27. Moreover, as noted above1089, the consequences of Israel’s
internationally wrongful acts are not limited to those covered by the “General
principles” codified in Articles 28 to 33 of the Articles on State Responsibility.
Since Israel has committed numerous breaches of obligations under peremptory
norms of general international law1090, those actions also trigger the particular
consequences of “serious breach[es]” of such obligations as defined in Article 40.
B. ASSURANCES AND GUARANTEES OF NON-REPETITION
7.28. Although the obligation to provide assurances and guarantees of nonrepetition
is not an automatic consequence of every internationally wrongful act1091,
the present case is a paradigmatic example of a situation where “circumstances …
require” such measures as provided for under Article 30 (b) of the Articles on State
Responsibility. Indeed, it is difficult to envisage a case where the need for
assurances and guarantees that there will be no repetition of the myriad of unlawful
acts could be greater. The Palestinian people are indeed faced with the most
protracted denial of the right to self-determination in the world, including forced
exile from their ancestral homeland and prevention of return, due to Israel’s
unlawful actions. The length of Israel’s illegal occupation of the West Bank,
including East Jerusalem, and the Gaza Strip – which has lasted for more than half
1085 See para. 7.12 above.
1086 See Jadhav Case, Judgment, I.C.J. Reports 2019, p. 36, para. 134.
1087 See, e.g., General Assembly, Resolutions 37/123 F, 20 December 1982; 46/82 A,
16 December 1991, para. 5; 77/187, 14 December 2022, para. 5; 77/208, 15 December 2022.
1088 See Chapter 6, paras. 6.11 and 6.18-6.19.
1089 See above, para. 7.5.
1090 See Chapter 6, paras. 6.5-6.11.
1091 The ILC defined these measures as having a “rather exceptional character” (Articles on
State Responsibility, p. 91, para. (13) of the commentary on Article 30).
317
a century with no end in sight – and the ensuing breaches of fundamental principles
of international law are without parallel. The numerous breaches of jus cogens
norms and fundamental principles of international law have occurred in spite of
repeated appeals and exhortations by the international community, including all the
relevant organs of the United Nations, for Israel to cease its internationally wrongful
acts. In light of these facts, and the devastating human, political, economic and
social consequences for the Palestinian people, it is essential that Israel provide
guarantees and assurances that those wrongful acts will not be repeated.
7.29. These guarantees are all the more indispensable in light of the fact that
Israel’s leaders have repeatedly proclaimed that there is no intention of putting an
end to them1092. In respect of the nature and content of such guarantees, as the ILC
has observed: “[w]ith regard to the kind of guarantees that may be requested,
international practice is not uniform”1093. However, generally speaking, “[w]here
assurances and guarantees of non-repetition are sought by an injured State, the
question is essentially the reinforcement of a continuing legal relationship and the
focus is on the future, not the past”1094.
7.30. The assurances which Israel should be required to provide would pertain
to (but are by no means limited to)1095:
(a) guarantees to immediately, unconditionally and totally end the occupation of
the State of Palestine’s territory and to fully respect its sovereignty and
political independence, and not to attempt to alter in any manner, including by
force, the borders of the State of Palestine resulting from the “Green Line”, in
conformity with the relevant United Nations resolutions, including Security
Council resolution 2334 (2016) and General Assembly resolution 77/25 of
30 November 2022;
(b) a pledge to submit to an impartial means of binding settlement any dispute
between Israel and the State of Palestine (including to the Court);
1092 See above Chapter 3, paras. 3.70-3.71 and 3.179-3.193.
1093 Articles on State Responsibility, p. 90, para. (12) of the commentary on Article 30.
1094 Ibid., para. (11).
1095 As noted by the ILC, “there is … some overlap … in practice” between assurances or
guarantees of non-repetition on the one hand and satisfaction on the other hand (see ibid.). When
there is an overlap, for the clarity of the explanations, the State of Palestine has elected to deal with
the consequences of Israel’s internationally wrongful acts under the heading of “Satisfaction” – see
paras. 7.72 ff. below. However, this must not be taken as an acknowledgment that it could not prevail
itself of Israel’s obligation to cease its internationally wrongful acts.
318
(c) guarantees to withdraw the Israeli occupying forces from the OPT, including
East Jerusalem, and to dismantle the Israeli settlements, the Wall and their
associated regime in the West Bank, including East Jerusalem;
(d) guarantees to lift the blockade over the Gaza Strip, which forms part of the
restitutio in integrum which Israel must provide1096, but which would also
constitute a strong assurance against the prolongation and repetition of the
most serious violations of the sovereignty, territorial integrity and political
independence of the State of Palestine;
(e) guarantees to end Israel’s annexation of the Holy City of Jerusalem, to respect
and enforce the international status of Jerusalem, including the historic status
quo, and to repeal any legislative or administrative measure that violates
international law and conflicts with the international status of the Holy City;
(f) guarantees to end and not reinstate any discrimination against Palestinians
under any pretext in violation of the prohibition on racial discrimination and
apartheid;
(g) guarantees in relation to the recognition and exercise by the Palestinian
refugees of their right to return to their homes and property and to
compensation; and
(h) guarantees of respect for the right of the Palestinian people to selfdetermination,
including the independence of the State of Palestine.
7.31. Moreover, in view of the contempt for international law which Israel has
manifested throughout its decades-long illegal occupation of the OPT, and the scale,
gravity and impact of Israel’s breaches of its international legal obligations,
international guarantees of its compliance with these obligations are required, and
these are addressed in Part B of this Chapter.
II. Israel is under an Obligation to Make Full Reparation
7.32. The second core obligation stemming from the responsibility of the State
for internationally wrongful acts is the obligation to make full reparation. This
obligation is clearly expressed in Article 31 of the Articles on State Responsibility:
1096 See paras. 7.46 ff. below.
319
“1. The responsible State is under an obligation to make full reparation for
the injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the
internationally wrongful act of a State.”
7.33. In 1928, the Court’s predecessor explained, in a celebrated dictum, that:
“It is a principle of international law, and even a general conception of law,
that any breach of an engagement involves an obligation to make
reparation … The essential principle contained in the actual notion of an
illegal act – a principle which seems to be established by international
practice and in particular by the decisions of arbitral tribunals – is that
reparation must, as far as possible, wipe out all the consequences of the
illegal act and re-establish the situation which would, in all probability, have
existed if that act had not been committed.”1097
7.34. Far from being an incidental aspect of a State’s international
responsibility, reparation has been described by the Permanent Court as “the
indispensable complement of a failure”1098.
7.35. In this regard, some, if not all, of Israel’s wrongful acts certainly belong
also to the category of breaches consisting of composite acts as defined in the ILC
Articles, which as explained in the commentary of the Articles, is a sub-category of
the acts having a continuing character. As defined in Article 15:
“1. The breach of an international obligation by a State through a series of
actions or omissions defined in aggregate as wrongful occurs when the
action or omission occurs which, taken with the other actions or omissions,
is sufficient to constitute the wrongful act.
1097 Factory at Chorzów, Merits, Judgment no. 13, 1928, P.C.I.J., Series A, No. 17, pp. 29 and
47. See also, e.g., Avena and Other Mexican Nationals, Judgment, I.C.J. Reports 2004, p. 59,
para. 119; Certain Activities carried out by Nicaragua in the Border Area, Compensation, Judgment,
I.C.J. Reports 2018, p. 25, para. 29; Jadhav Case, Judgment, I.C.J. Reports 2019, pp. 455-456,
para. 138.
1098 Factory at Chorzów, Jurisdiction, Judgment no. 8, 1927, P.C.I.J., Series A, No. 9, p. 21;
see also Factory at Chorzów, Merits, Judgment no. 13, 1928, P.C.I.J., Series A, No. 17, p. 29; Case
concerning the difference between New Zealand and France concerning the interpretation or
application of two agreements concluded on 9 July 1986 between the two States and which related
to the problems arising from the Rainbow Warrior Affair, Decision, 30 April 1990, RIAA, Vol. XX,
p. 251, para. 75. See also Articles on State Responsibility, p. 91, para. (1) of the commentary on
Article 31.
320
2. In such a case, the breach extends over the entire period starting with the
first of the actions or omissions of the series and lasts for as long as these
actions or omissions are repeated and remain not in conformity with the
international obligation.”
7.36. Several of the Israeli wrongful acts enter in full under this definition. As
expressly explained by the ILC: “Some of the most serious wrongful acts in
international law are defined in terms of their composite character.”1099 According
to the ILC, “[e]xamples include the obligations concerning … apartheid or crimes
against humanity, systematic acts of racial discrimination …” which are precisely
among those breached by Israel as has been established in Chapter 4 above.
7.37. In the present case, the continuous nature of Israel’s breaches of its
international obligations cannot be separated from their long spread over time,
notably the protracted denial of the inalienable rights of the Palestinian people to
self-determination and return of Palestinian refugees, the very unusual and
unjustifiable length of the Israeli occupation and the policies and measures it
enacted from the onset of the occupation to annex and colonize the Palestinian
territory.
7.38. Therefore, both the occupation as such and its constituent violations
stemming from and inherent to it, such as the ongoing settlement and related
annexation of territory by the occupying Power, Israel’s imposition of a regime of
racial discrimination and policies of apartheid against the Palestinian people, and
the ongoing violation of the right of the Palestinian people to self-determination,
fall within the definition given in paragraph 2 of Article 14 of the Articles on State
Responsibility (“Extension in time of the breach of an international obligation”):
“The breach of an international obligation by an act of a State having a
continuing character extends over the entire period during which the act
continues and remains not in conformity with the international obligation.”
7.39. This definition was endorsed by the Arbitral Tribunal in the case of the
Rainbow Warrior. In that case, the Tribunal considered that it was “clear that the
breach consisting in the failure of returning [two agents of the French secret services
to the French military facility on an isolated island outside of Europe where they
1099 Articles on State Responsibility, p. 62, para. (2) of the commentary on Article 15.
321
should have been transferred for a period of three years] has been not only a material
but also a continuous breach”1100. And the Tribunal added:
“And this classification is not purely theoretical, but, on the contrary, it has
practical consequences, since the seriousness of the breach and its
prolongation in time cannot fail to have considerable bearing on the
establishment of the reparation which is adequate for a violation presenting
these two features.”1101
7.40. The same holds true in the present case where the time of commission of
the breaches “extends over the entire period during which the unlawful act
continues to take place”. And, paraphrasing the decision in Rainbow Warrior, it is
clear that Israel has “committed a continuous breach of its obligations, without any
interruption or suspension, during the whole period when” the right of the
Palestinian people to self-determination has been denied, the fundamental rights of
Palestinians have been breached and the occupation and the ensuing breaches have
taken place. Therefore, “the seriousness of the breach” committed by Israel “and its
prolongation in time cannot fail to have considerable bearing on the establishment
of the reparation which is adequate for a violation presenting these two features”.
7.41. The obligation to make full reparation is independent of the obligations
to cease continuous breaches of international law and to give guarantees and
assurances of non-repetition when the circumstances so require1102. This is why,
when the Court addresses the obligation to cease an internationally wrongful act, it
often also explains how the responsible State can positively discharge its obligation
to make full reparation in respect of the injury caused by that wrongful act. For
example, in the Wall Opinion the Court indicated that Israel’s obligation to cease
the breaches of international law linked to the construction of the Wall also entailed:
“an obligation to return the land, orchards, olive groves and other
immovable property seized from any natural or legal person for purposes of
construction of the wall in the Occupied Palestinian Territory. In the event
that such restitution should prove to be materially impossible, Israel has an
obligation to compensate the persons in question for the damage suffered.
The Court considers that Israel also has an obligation to compensate, in
1100 Case concerning the difference between New Zealand and France concerning the
interpretation or application of two agreements concluded on 9 July 1986 between the two States
and which related to the problems arising from the Rainbow Warrior Affair, Decision,
30 April 1990, RIAA, Vol. XX, pp. 263-264, para. 101.
1101 Ibid.
1102 See Articles on State Responsibility, Article 29 (Continued duty of performance), quoted
in para. 7.14 above.
322
accordance with the applicable rules of international law, all natural or legal
persons having suffered any form of material damage as a result of the
wall’s construction.”1103
7.42. Article 34 of the Articles on State Responsibility identifies several
distinct but related forms which the obligation to provide full reparation entails:
“Full reparation for the injury caused by the internationally wrongful act
shall take the form of restitution, compensation and satisfaction, either
singly or in combination, in accordance with the provisions of this chapter.”
7.43. The State of Palestine is conscious that the Court may be reluctant to
make a concrete decision on the form and content of the reparation in view of the
continuous nature of Israel’s breaches of its obligations.
7.44. However, the present case is different from past precedents in important
respects. Most relevantly, this is an advisory proceeding, in which the Court has
been specifically requested by the General Assembly to determine the “legal
consequences” of Israel’s various unlawful acts in the OPT. An important aspect of
those “legal consequences” is the form and content of Israel’s obligation to make
reparation for its internationally wrongful acts. The Court’s determination of this
issue will provide a framework for States and the United Nations to determine the
practical measures and mechanisms which are required to effectively implement
those reparational obligations. While the continuing character of Israel’s breaches
prevents a determination at this stage of the amount of compensation due to the
State of Palestine in respect of those breaches, it does not prevent the Court from
determining in principle what forms of reparation Israel should be required to
provide.
7.45. With this in mind, in the present section of this Chapter the State of
Palestine will elaborate as far as possible on the different forms of reparation due
by Israel to the State of Palestine, namely restitution (restitutio in integrum) (A),
compensation (B) and satisfaction (C).
1103 Wall Opinion, p. 198, para. 153. See also 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. 54, para. 118.
323
A. RESTITUTION
7.46. “[R]estitution is the first of the forms of reparation available to a State
injured by an internationally wrongful act.”1104 Article 35 of the Articles on State
Responsibility makes clear that:
“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, provided and to the extent
that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving
from restitution instead of compensation.”
7.47. Even more than other forms of reparation, restitution aims to “wipe out
all the consequences of the illegal act and re-establish the situation which would, in
all probability, have existed if that act had not been committed”1105. Accordingly,
it should be the preferred means of reparation – wherever possible – over other
forms of reparation1106.
7.48. In this regard, “[r]estitution, as the first of the forms of reparation, is of
particular importance where the obligation breached is of a continuing character,
and even more so where it arises under a peremptory norm of general international
law”1107. Moreover, in such cases, “restitution may be required as an aspect of
compliance with the primary obligation”1108. Since Israel’s breaches of its
international obligations are both of a continuous character1109 and arise under
several peremptory norms of international law1110; it follows that restitution is of
particular importance in this case1111.
1104 Articles on State Responsibility, p. 96, para. (1). See also ibid., para. (3) (restitution
“comes first among the forms of reparation”).
1105 See fn. 1097 above.
1106 See, e.g., among the recent case law of the Court, Pulp Mills on the River Uruguay,
Judgment, I.C.J. Reports 2010, pp. 103-104, para. 273; Certain Activities carried out by Nicaragua
in the Border Area, Compensation, Judgment, I.C.J. Reports 2018, p. 26, para. 31; Armed Activities
on the Territory of the Congo, Reparations, Judgment, 9 February 2022, para. 101.
1107 Articles on State Responsibility, p. 98, para. (6) of the commentary on Article 35.
1108 Ibid., p. 97, para. (3).
1109 See paras. 7.17-7.20 above.
1110 See notably Chapter 6, paras. 6.5-6.11 above.
1111 Articles on State Responsibility, p. 98, para. (6) of the commentary on Article 35.
324
7.49. Restitution may take various forms depending on the circumstances.
Given the variety of obligations which Israel has breached and the diverse forms of
damage which those breaches have caused to the State of Palestine and the
Palestinian people, it follows that a range of restitutionary measures will be
required.
7.50. In respect of Israel’s illegal occupation of the OPT and its annexation of
Jerusalem and the rest of the West Bank, the first and indispensable steps to
achieving restitution include:
(a) the immediate, unconditional and complete withdrawal of Israel, including its
occupying forces, from the OPT, including East Jerusalem1112;
(b) the dismantling of the illegal settlements and the Wall and the withdrawal of
the settlers; and
(c) the annulment of the laws, regulations and orders of annexation concerning
Jerusalem and the rest of the West Bank, as well as those imposing a regime
of racial discrimination tantamount to apartheid against the Palestinian people.
As previously noted, these measures are also a necessary consequence of Israel’s
obligation of cessation1113.
7.51. There can be no doubt that the invalidity of the laws and regulations
which Israel has enacted in furtherance of its illegal occupation of the Palestinian
territory and annexation of Jerusalem and the rest of the West Bank is a necessary
consequence of their unlawfulness under international law. There are clear
precedents to this effect. In the Eastern Greenland case, for example, the Permanent
Court decided that:
“the declaration of occupation promulgated by the Norwegian Government
on July 10th, 1931, and any steps taken in this respect by that Government,
constitute a violation of the existing legal situation and are accordingly
unlawful and invalid.”1114
1112 See 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. 54, para. 32.
1113 See Articles on State Responsibility, p. 98, para. (6) of the commentary on Article 35. See
also ibid., p. 89, paras. (7) and 8) of the commentary on Article 30.
1114 Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 75. See also the Free
Zones case, in which the Permanent Court decided that France “must withdraw its customs line in
accordance with the provisions of” previous treaties and instruments (Free Zones of Upper Savoy
325
7.52. It follows that the restoration of the status quo ante requires the adoption
by Israel1115 of measures which annul the entire corpus of laws and regulations
which give effect to its illegal occupation and annexation, including the laws and
measures which authorize or facilitate Israeli settlements in the OPT and which
impose discriminatory restrictions on the rights of Palestinians.
7.53. It also requires Israel to adopt measures which reverse the consequences
which have resulted from the enactment and application of those laws. Accordingly,
Israel is required to take measures to ensure (amongst other things):
(a) the return of Palestinians expelled and uprooted from their homes, lands, cities
and villages, and their descendants;
(b) the withdrawal of the Israeli occupation forces and Israeli settlers from the
Occupied Palestinian Territory, including East Jerusalem;
(c) the return of moveable and immovable property seized from Palestinians in
the course of the armed conflict and the occupation1116; and
(d) the release of the Palestinians deprived of their liberty, including because of
their status as Palestinians or of reasons connected to their opposition to
Israel’s illegal occupation of the OPT.
7.54. It goes without saying that Israel cannot invoke the fait accompli which
it has deliberately sought to create in the OPT, including by the construction of
hundreds of illegal settlements and implantation of hundreds of thousands of Israeli
settlers1117, to escape or dilute the content of its obligation of restitution1118.
7.55. Moreover, in circumstances where Israel has constructed settlements and
related infrastructure in full knowledge of their illegality and with the specific aim
of entrenching its presence in territory which does not belong to it, it would be a
grave affront to justice to reward Israel for that deliberate and calculated illegality
and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 172). The doctrinal debate
concerning whether or not a State can be held responsible for the adoption of a law is irrelevant in
the present case: the laws and regulations in question have not only be adopted but fully
implemented.
1115 See para. 7.32 above.
1116 See, e.g., Security Council, Resolution 686 (1991), 2 March 1991; Articles on State
Responsibility, p. 98, para. (6) of the commentary on Article 35.
1117 On the invocation of the fait accompli resulting from the length of the occupation by Israeli
high officials, see above Chapter 3, and more particularly paras. 3.6, 3.98 and 3.123.
1118 See Articles on State Responsibility, Article 32 (Irrelevance of internal law): “The
responsible State may not rely on the provisions of its internal law as justification for failure to
comply with its obligations under this Part.”
326
by using the presence of those settlements and related infrastructure as a reason for
relieving Israel of its duty to provide restitution.
7.56. Nor can Israel rely on the content of its own laws, or political or practical
difficulties in restoring the status quo ante, as a basis for reducing or abrogating its
obligation of restitution. Although it is recognized that ad impossibilem nemo
tenetur, it is equally well established that, “restitution is not impossible merely on
grounds of legal or practical difficulties, even though the responsible State may
have to make special efforts to overcome these”1119.
7.57. In respect of the limitation in paragraph (b) of Article 35 of the Articles
on State Responsibility, this must be interpreted in view of the explanations
provided by the ILC in its commentary on that provision:
“only where there is a grave disproportionality between the burden which
restitution would impose on the responsible State and the benefit which
would be gained, either by the injured State or by any victim of the breach.
It is thus based on considerations of equity and reasonableness, although
with a preference for the position of the injured State in any case where the
balancing process does not indicate a clear preference for compensation as
compared with restitution. The balance will invariably favour the injured
State in any case where the failure to provide restitution would jeopardize
its political independence or economic stability.”1120
7.58. In the present context, it cannot possibly be suggested that the end of the
illegal occupation of the OPT from which Israel (and the settlers in the illegal
settlements) have benefited enormously for more than half a century (including by
exploiting and denuding the OPT of extremely valuable water resources, mineral
deposits and other natural resources1121) could be unfair or unreasonable. Indeed,
the denial of restitution would most seriously jeopardize the State of Palestine’s
independence and economic stability and would continue to cause harm to its
population. This would represent a manifest conflict with the principle ex injuria
jus non oritur1122.
7.59. Nor could it reasonably be suggested that withdrawal from the OPT and
dismantling of the illegal settlements is impossible in practical terms. Indeed,
1119 Articles on State Responsibility, p. 98, para. (8) of the commentary on Article 35.
1120 Articles on State Responsibility, p. 98, para. (11) of the commentary on Article 35
(footnote omitted).
1121 See Chapter 3B, Exploitation of Water and Other Natural Resources, in particular paras.
3.249-3.256.
1122 See above Chapter 7, para. 7.54.
327
precedents exist in this regard. Dismantling the settlements and their associated
regime is critical to the State of Palestine’s political independence and it cannot be
deemed excessively burdensome or costly, especially given the fact that Israel, has
benefited from this illegal situation for decades, and must now bear the
consequences.
B. COMPENSATION
7.60. Even though restitution is “the first of the forms of reparation” and the
obligation to restore the status quo ante can amply, and should, be implemented in
the present case, the mere restoration of that earlier state of affairs would not fully
discharge Israel’s obligations “to make full reparation for the injury caused by the
internationally wrongful act”1123 and to “wipe out all the consequences of [its]
illegal act[s]”1124. Compensation, as well as restitution, is required in order to fulfil
those duties.
7.61. Article 36 of the Articles on State Responsibility provides that:
“1. The State responsible for an internationally wrongful act is under an
obligation to compensate for the damage caused thereby, insofar as such
damage is not made good by restitution.
2. The compensation shall cover any financially assessable damage
including loss of profits insofar as it is established.”
7.62. In the Factory at Chorzów case, the Permanent Court explained that:
“It is a principle of international law that the reparation of a wrong may
consist in an indemnity corresponding to the damage which the nationals of
the injured State have suffered as a result of the act which is contrary to
international law.”1125
1123 Articles on State Responsibility, Article 31. See para. 7.32 above.
1124 Factory at Chorzów, Merits, Judgment no. 13, 1928, P.C.I.J., Series A, No. 17, pp. 29 and
47. See para. 7.33 above.
1125 Ibid., pp. 27 and 28.
328
7.63. The Court has described this obligation as “a well-established rule of
international law”1126 “[i]nsofar as restitution is not possible”1127.
7.64. The State of Palestine does not suggest that the questions referred to the
Court by the General Assembly in resolution 77/247 require it to evaluate and
quantify the amount of compensation which Israel must provide as a consequence
of its illegal activities. Such an exercise would inevitably be highly speculative in
circumstances where the wrongful acts are continuing, and where evidence as to
quantum has not been placed before it. It is, however, the responsibility of the Court
“to guide the United Nations in respect of its own action”1128. In the present context,
this requires the Court to assist the other organs of the Organisation to assess the
precise consequences of Israel’s internationally wrongful acts1129.
7.65. As the preceding Chapters have demonstrated1130, Israel’s actions and
policies have resulted in harm of exceptional magnitude to the State of Palestine
and the Palestinian people. To the extent that full reparation of some of this damage
is truly impossible (as opposed to merely difficult), Israel is obliged to compensate
the injury caused by its wrongful acts.
7.66. Although it is impossible to be exhaustive in this respect within the
framework of the present advisory proceedings, it is appropriate to give examples
of the many types of damage caused by Israel’s breaches of international law and
their legal consequences. To that end, it is necessary to distinguish between the
injuries to the State of Palestine on the one hand and to the Palestinian people on
the other.
7.67. In respect of the main injuries caused to the State of Palestine itself, the
cessation of the illegal occupation and annexation of its territory, the withdrawal of
Israeli occupation forces and settlers, and the dismantling of the settlements, the
Wall and related infrastructure created there are essential aspects of Israel’s
obligations to the State of Palestine arising from Israel’s unlawful acts. However,
1126 Gabčíkovo-Nagymaros Project, Judgment, I.C.J. Reports 1997, p. 81, para. 152;
Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Judgment, I.C.J. Reports 2007, pp. 232-233, para. 460 (quoting: Wall Opinion, p. 198,
paras. 152-153).
1127 Ibid., pp. 232-233, para. 460.
1128 Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 19. See also 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. 24, para. 32; Western
Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 27, para. 41; Wall Opinion, pp. 162-163, para. 60.
1129 See para. 1.50 above.
1130 See, e.g., Chapter 4, paras. 4.32-4.91 or Chapter 5, para. 5.59.
329
the end of the occupation and the dismantling of the settlements and the Wall would
clearly not make good all of the injury – including both material and moral damage
– caused to the State of Palestine by Israel’s internationally wrongful acts1131.
7.68. While the-establishment of the status quo ante would prevent the
occurrence of new damage for which further reparation would be due, it would in
no way remedy the damage suffered during the past 56 years of illegal occupation
of the OPT. This damage includes (but is by no means limited to):
(a) the cost to the Palestinian economy of the Israeli occupation and restrictions;
(b) the cost of rebuilding or repairing the vast number of collective facilities
destroyed or degraded by Israel including health facilities and schools1132;
(c) the losses caused by Israel’s expropriation of the natural resources of
Palestine1133, 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,1134 and the destruction of olive
trees1135 and other sources of livelihood;
(d) the vast damage caused by the serious attacks by Israel on the economic and
social development of the State of Palestine and its population including, for
example, the blockade imposed on the Gaza Strip1136 and the impossibility for
1131 Wall Opinion, p. 198, para. 152.
1132 See World Health Organization (WHO), Regional Office for the Eastern Mediterranean,
“Attacks on health care during the Great March of Return in Gaza”, Press release, 11 April 2019.
See among other numerous examples Euro-Med Human Rights Monitor, “Israel’s targeting of
economic facilities in Gaza signals disastrous consequences”, Press release, 19 May 2021. See also
Armed Activities on the Territory of the Congo, Reparations, Judgment, 9 February 2022, para. 240.
1133 See, e.g., General Assembly, Resolution 3175 (XXVIII), 17 December 1973, para. 3;
General Assembly, Resolution 31/186, 21 December 1976, para. 1.
1134 Human Rights Council, Report of the United Nations High Commissioner for Human
Rights, The allocation of water resources in the Occupied Palestinian Territory, including East
Jerusalem, 15 October 2021, A/HRC/48/43, paras. 24 and 34. See also B’Tselem, “Parched, Israel’s
policy of water deprivation in the West Bank”, May 2023 (https://tinyurl.com/2dpxa4cx).
1135 See, e.g., Wall Opinion, p. 198, para. 153. See also General Assembly, Economic and
Social Council, Economic and social repercussions of the Israeli occupation on the living conditions
of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the
Arab population in the occupied Syrian Golan, Note by the Secretary-General, 8 June 2022,
A/77/90–E/2022/66, para. 41.
1136 See, e.g., United Nations Conference on Trade and Development (UNCTAD), The
Economic Costs of the Israeli Occupation for the Palestinian People: The Impoverishment of Gaza
under Blockade, 2020, UNCTAD/GDS/APP/2020/1; UNCTAD, The Economic Costs of the Israeli
Occupation for the Palestinian People: The Cost of Restrictions in Area C Viewed from Above,
2022, UNCTAD/GDS/APP/2022/1/Corr.1.
330
Palestinians to access the fisheries resources available in a large part of the sea
where they have a right to fish under international law including in Palestine’s
territorial waters and EEZ, as well as their inability to access the hydrocarbon
deposits in Palestine’s continental shelf1137;
(e) the damage to the environment of the Palestinian territory caused by Israel
including by the depositing and spreading of toxic substances1138; and
(f) the cost of rehabilitating historical monuments and Palestinian cultural
treasures damaged by Israel1139.
7.69. As far as the damage caused to the Palestinian people by Israel’s
internationally wrongful acts is concerned, it includes (also without being
exhaustive):
(a) physical injury, pain and death caused by Israel’s killing, torture and inhuman
and degrading treatment of Palestinians and its violations of their right to
life1140;
(b) medical expenses and losses of income caused by the unlawful violence of
Israel’s occupying forces and the unlawful denial of access to healthcare
facilities1141;
(c) loss of liberty caused by Israel’s arbitrary detention of hundreds of thousands
of Palestinians1142;
(d) the moral damage and considerable suffering (pretium doloris) resulting
therefrom1143;
1137 See, e.g., General Assembly, Economic costs of the Israeli occupation for the Palestinian
people, Note by the Secretary-General, 10 October 2018, A/73/201, para. 7.
1138 See, e.g., UNOCHA, “Environmental and health risk still unfolding: the bombing of
Gaza’s largest agrochemical warehouse”, Press release, 3 November 2021. See also Certain
Activities carried out by Nicaragua in the Border Area, Compensation, Judgment, I.C.J. Reports
2018, p. 14, para. 41; Armed Activities on the Territory of the Congo, Reparations, Judgment,
9 February 2022, para. 348. See also General Assembly, Resolution 75/236, 21 December 2020,
preamble and paras. 6 and 8.
1139 See, e.g., United Nations Educational, Scientific and Cultural Organization (UNESCO),
World Heritage Committee, Decision 44 COM 7A.10, Old City of Jerusalem and its Walls,
31 July 2021, WHC/21/44.COM/18, pp. 27-28.
1140 See Chapter 4, paras. 4.32-4.109.
1141 See Chapter 4, paras. 4.66-4.91 and paras. 4.166-4.171.
1142 See Chapter 4, para. 4.32-4.50.
1143 See, e.g., WHO, Emergency Trauma Response to the Gaza Mass Demonstrations 2018-
2019, “A One-Year Review of Trauma Data and the Humanitarian Consequences”, May 2019; M/V
“SAIGA” (No. 2), Judgment, ITLOS Reports 1999, pp. 66-67, paras. 173 and 175.
331
(e) confiscation of privately owned Palestinian land and destruction of tens of
thousands of Palestinian homes and other private property1144; and
(f) losses of agricultural crops and livestock1145.
7.70. Moreover, as is the case for the obligation of restitution1146, the State of
Palestine is entitled to claim from Israel performance of the obligation of reparation
“in the interest … of the beneficiaries of the obligation breached” as provided for
in Article 48 (2) (b) of the Articles on State Responsibility. In this case it can be
done in the interest of the whole Palestinian people who are the victims, both
individually and collectively, of Israel’s policy of racial discrimination and
apartheid1147.
7.71. This Written Statement is not the appropriate place to detail the methods
for assessing the compensation due in respect of these different types of damage.
For present purposes, it is sufficient to note that whatever their nature, the injuries
and the amount of compensation must cover the loss of profit (lucrum cessans) for
the beneficiaries1148; and that it must include time-dependent interest, which is the
only means of ensuring full reparation for the damage suffered1149. Moreover, it
would be appropriate to provide for an assessment by neutral experts through a
mechanism for documentation, registration, verification and valuation of the
damage caused by Israel’s unlawful activities.
C. SATISFACTION
7.72. In addition to Israel’s obligations to make restitution and to compensate
the State of Palestine and the Palestinian people for the damage caused by its
unlawful decisions and practices, in accordance with Article 37 of the Articles on
State Responsibility, Israel is also obliged to give satisfaction to the State of
Palestine and the Palestinian people for the injury caused by these same acts
“insofar as it cannot be made good by restitution or compensation”.
1144 See Chapter 3, paras. 3.101-3.104, Chapter 4, paras. 4.175-4.183 and Chapter 5, para. 5.51.
1145 See Chapter 4, paras. 4.156 and 4.184, and Chapter 5, para. 5.79.
1146 See para. 7.49 above.
1147 See above, Chapter 4, and Chapter 6, paras. 6.10-6.11.
1148 See, e.g., Factory at Chorzów, Merits, Judgment no. 13, 1928, P.C.I.J., Series A, No. 17,
p. 53, or Ahmadou Sadio Diallo, Judgment, I.C.J. Reports 2012, pp. 339-340, para. 40. See also
Articles on State Responsibility, Article 36 (2).
1149 See, e.g., Certain Activities carried out by Nicaragua in the Border Area, Compensation,
Judgment, I.C.J. Reports 2018, pp. 40-41, paras. 151-155; Armed Activities on the Territory of the
Congo, Reparations, Judgment, 9 February 2022, para. 402.
332
7.73. Paragraph 2 of Article 37 provides that: “Satisfaction may consist in an
acknowledgement of the breach, an expression of regret, a formal apology or
another appropriate modality.” In its recent Judgment on reparations in the case
concerning Armed Activities on the Territory of the Congo, the Court explained
that: “satisfaction can take an entirely different form depending on the
circumstances of the case, and in so far as compensation does not wipe out all the
consequences of an internationally wrongful act”1150. The Court added that, “the
forms of satisfaction listed in the second paragraph of [Article 37] are not
exhaustive”1151 and are highly dependent upon the circumstances of the case at
hand1152.
7.74. Given the seriousness of Israel’s breaches1153 and the gravity of the
damage which they have caused both materially and morally to the State of
Palestine and the Palestinian people over many decades, the combination of
restitution and compensation would not be sufficient to make good the moral
damage caused by Israel’s internationally wrongful acts.
7.75. Here again, the present advisory proceedings might not be the proper
framework to address in detail the forms of the satisfaction to be offered by Israel
to the State of Palestine and the Palestinian people for the material and moral
damage suffered as a result of Israel’s unlawful conduct. Among other steps,
satisfaction could take the form of solemn speeches by the highest political
authorities of the Israeli State apologising for the injury done1154 and of a lump sum
of money to erase the traces of the occupation1155 and to encourage cooperation
between the two States1156.
7.76. However, without prejudice to the obligations already incumbent on
Israel1157, there is one form of satisfaction which is not only appropriate but
1150 Armed Activities on the Territory of the Congo, Reparations, Judgment, 9 February 2022,
para. 387.
1151 Ibid., para. 389.
1152 See para. 7.72 above.
1153 See above Chapter 6, paras. 6.5-6.11.
1154 See, e.g., Case concerning the differences between New Zealand and France arising from
the Rainbow Warrior Affair, Ruling, 6 July 1986, RIAA, Vol. XIX, p. 213; LaGrand, Judgment,
I.C.J. Reports 2001, p. 489, para. 63; Certain Iranian Assets, Judgment, 30 March 2023, para. 232.
1155 Mavrommatis Jerusalem Concessions, Judgment, 1925, P.C.I.J., Series A, No. 5, p. 21;
Arctic Sunrise Arbitration, PCA Case No. 2014-02, Award on Compensation, 10 July 2017, RIAA,
Vol. XXXII, p. 341, para. 84.
1156 Case concerning the differences between New Zealand and France arising from the
Rainbow Warrior Affair, Ruling, 6 July 1986, RIAA, Vol. XIX, p. 215, para. 5; Armed Activities on
the Territory of the Congo, Reparations, Judgment, 9 February 2022, para. 391.
1157 Ibid., para. 390.
333
indispensable in the circumstances of the case, and which is the necessary
consequence of the violation of certain rules of international law by Israel. This is
the obligation to investigate and prosecute individuals who have initiated, or
contributed to, Israel’s serious breaches of international obligations deriving from
peremptory rules of international law.
7.77. As shown by the Ruling of the Secretary-General of the United Nations
in the case of the Rainbow Warrior, the imposition of sanctions against the
individuals who have committed an internationally wrongful act attributable to the
State can be part of the duty of reparation owed to the injured State1158.
7.78. In the same vein, the Security Council affirmed that, as a High
Contracting Party to the Geneva Convention relative to the Protection of Civilian
Persons in Time of War, of 12 August 1949, a State “is bound to comply fully with
all its terms and in particular is liable under the Convention in respect of the grave
breaches committed by it, as are individuals who commit or order the commission
of grave breaches”1159.
7.79. The Court itself observed that pursuant to Article 146 of the Fourth
Geneva Convention relative to the Protection of Civilian Persons in Time of War
of 12 August 1949 and to Article 85 of the Protocol Additional to the Geneva
Conventions of 12 August 1949 and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), a State “has a duty to investigate,
prosecute and punish those responsible for the commission of such violations”1160.
7.80. This reasoning and conclusion apply fully to the present case in which,
as a consequence of Israel’s gross violations of the rules relating to occupation
enshrined in the Fourth Geneva Convention and Additional Protocol I, Israel is
required to investigate and prosecute “those responsible for the commission of such
violations”. This duty also stems from rules of customary international law, as
confirmed by the ICRC in Rule 158 of its study of customary rules:
1158 In that case, the Secretary-General decided that the two French service agents “should be
transferred to a French military facility on an isolated island outside of Europe for a period of three
year” (Case concerning the differences between New Zealand and France arising from the Rainbow
Warrior Affair, Ruling, 6 July 1986, RIAA, Vol. XIX, p. 224).
1159 Security Council, Resolution 670, 25 September 1990, para. 13 (emphasis added).
1160 Armed Activities on the Territory of the Congo, Reparations, Judgment, 9 February 2022,
para. 390. For a comparable declaration concerning the obligation to “punish”, see Application of
the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, I.C.J.
Reports 2007, p. 235, para. 465.
334
“States must investigate war crimes allegedly committed by their nationals
or armed forces, or on their territory, and, if appropriate, prosecute the
suspects. They must also investigate other war crimes over which they have
jurisdiction and, if appropriate, prosecute the suspects.”1161
7.81. The same applies to other violations perpetrated by its nationals and
attributable to Israel, whether or not those nationals were acting in an official
capacity. Accordingly, Israel must “condemn racial segregation and apartheid and
undertake to prevent, prohibit and eradicate all practices of this nature in territories
under their jurisdiction” and it bears the obligation not to “permit public authorities
or public institutions, national or local, to promote or incite racial discrimination”
as provided for in Articles 3 and 4 of the International Convention on the
Elimination of All Forms of Racial Discrimination. Article 6 of the same
Convention provides that:
“States Parties shall assure to everyone within their jurisdiction effective
protection and remedies, through the competent national tribunals and other
State institutions, against any acts of racial discrimination which violate his
human rights and fundamental freedoms contrary to this Convention, as well
as the right to seek from such tribunals just and adequate reparation or
satisfaction for any damage suffered as a result of such discrimination.”
7.82. Furthermore, most of the violations of international law for which Israel
is responsible are serious breaches of obligations arising under peremptory norms
of general international law1162. One of the consequences of this is what has been
called “State transparency” according to which “agents of the State can be required
to answer personally before a criminal tribunal for official acts which played a part
in the crime without their official status being an obstacle to conviction”1163. Such
violations cannot be deemed to have been committed in the exercise of official
1161 As clarified by the ICRC, this obligation is recalled in numerous instruments, including
the “Genocide Convention, Article VI; Hague Convention for the Protection of Cultural Property,
Article 28; Convention against Torture, Article 7; Chemical Weapons Convention, Article VII(1);
Amended Protocol II to the Convention on Certain Conventional Weapons, Article 14 ; Ottawa
Convention, Article 9; Second Protocol to the Hague Convention for the Protection of Cultural
Property, Articles 15–17”. The ICRC also mentions Security Council resolutions which mentioned
this obligation: “UN Security Council, Res. 978 (ibid., § 558), Res. 1193 (ibid., § 559) and
Res. 1199 (ibid., § 560); UN Security Council, Statements by the President (ibid., §§ 561-569)”. For
more information, see ICRC, International Humanitarian Law Databases, online, Rule 158,
Prosecution of War Crimes (https://tinyurl.com/ycxxh64e).
1162 See notably above, Chapter 6, paras. 6.5-6.11.
1163 R. Maison, “The ‘Transparency’ of the State”, in J. Crawford, A. Pellet and S. Olleson
(eds.), The Law of International Responsibility (Oxford University Press, 2010), pp. 717-718.
335
functions under the rule of law. It follows that Israel cannot rely on the fact that its
officials were acting within the scope of their responsibilities under Israeli law
when they committed the relevant violations as an excuse for not prosecuting them
in respect of those wrongful acts.
7.83. Israel’s obligation to prosecute and punish such breaches is underscored
by the fact that it would be paradoxical if all States were called upon to cooperate
in ending and punishing such breaches – as addressed in Part B of this Chapter1164
– with the exception of the State responsible. Furthermore, in its Judgment on the
Merits in the Application of the Convention on the Prevention and Punishment of
the Crime of Genocide case in 2007, the Court found by 14 votes to 1 that the
Defendant State “has violated its obligations under the Convention on the
Prevention and Punishment of the Crime of Genocide by having failed to transfer”
one of its nationals “indicted for genocide and complicity in genocide, for trial by
the International Criminal Tribunal for the former Yugoslavia, and thus having
failed fully to co-operate with that Tribunal”1165.
7.84. This finding applies mutatis mutandis in the present case. By refraining
from prosecuting and punishing those responsible for serious breaches of
obligations arising under a peremptory norm of general international law and
formally declining to cooperate with the ICC, Israel is in breach of its secondary
obligations arising from the consequences of its own internationally wrongful acts.
Conclusions
7.85. Israel has a duty to make full reparation for all the injury caused to the
State of Palestine and to the Palestinian people as a result of its internationally
wrongful acts. As described above, this duty imposes on Israel obligations of
cessation, assurances of non-repetition, restitution, compensation and satisfaction.
The specific obligations incumbent upon Israel under each of these headings is set
out in the relevant section. Collectively, they all fall into three categories:
A. Cessation
7.86. The first and foremost consequence of Israel’s violations of numerous
rules and principles of international law – including fundamental jus cogens norms
– is that Israel must as rapidly as possible and without further delay put an end to
1164 See below, paras. 7.150-7.161.
1165 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide, Judgment, I.C.J. Reports 2007, p. 238, para. 471 (6).
336
those violations. Most importantly, Israel must immediately and unconditionally
put an end to its occupation of Palestinian territory and withdraw from the whole
of the OPT.
7.87. Israel must in all respects fully restore the status quo ex ante which
existed before the commission of its internationally wrongful acts. Compliance with
that obligation entails, inter alia, that Israel must: withdraw its military and civilian
personnel from the OPT; reverse and abandon its policy of annexing Jerusalem and
the rest of the West Bank; dismantle its illegal settlements, the Wall and other
related infrastructure in the Palestinian territory; withdraw its citizens unlawfully
settled in the Palestinian territory; end its blockade of the Gaza Strip; revoke all
legislation and measures and actions that discriminate against the Palestinian people
or subject them to apartheid; cease and desist from denying to Palestinians their
rights under international humanitarian law and international human rights law;
accept the return of Palestinians expelled from their homes, lands, cities and
villages, including their descendants, and the return of the property that was seized
from them; and respect the right of the Palestinian people to self-determination,
including their right to an independent Palestinian State.
7.88. The second aspect of Israel’s duty to make full reparation is an obligation
to compensate the State of Palestine and the Palestinian people for all the damage
which they have suffered as a result of Israel’s internationally wrongful acts which
cannot be restored through restitution. In respect of the State of Palestine, this
requires Israel to provide compensation for (amongst other things) the losses
suffered as a result of Israel’s widespread and systematic plundering of the natural
resources in the OPT, and the vast damage caused by the military attacks on the
Gaza Strip and the 16-year blockade of its population. In respect of damage to the
people of Palestine, Israel is required to provide compensation for (amongst other
things) the losses suffered through its confiscation of Palestinian land, and the
destruction and attacks on Palestinian property; the physical injury, pain and death
resulting from the use against them of unlawful force and torture and inhuman and
degrading treatment; and the loss of liberty arising from the arbitrary detention of
hundreds of thousands of people.
7.89. The third aspect of Israel’s duty to make full reparation is its obligation
to provide satisfaction in respect of all damage which cannot be made good by
restitution or compensation. An essential aspect of that obligation is Israel’s duty to
investigate and prosecute individuals, including State officials, who have initiated
or contributed to Israel’s serious breaches of international obligations deriving from
jus cogens norms of international law.
337
B. Assurances of Non-Repetition
7.90. The assurances which Israel should be required to provide would include
the following guarantees: (a) to immediately and unconditionally end the illegal
occupation of the State of Palestine’s territory and to fully respect its sovereignty
and not to attempt to alter by force the borders of the State of Palestine resulting
from the “Green Line”, in conformity with the relevant United Nations resolutions,
including Security Council resolution 2334 (2016) and General Assembly
resolution 77/25 of 6 December 2022; (b) to submit to an impartial means of
binding settlement any dispute between Israel and the State of Palestine; (c) to
withdraw its military and civilian occupying forces from the OPT, including East
Jerusalem and to dismantle the Israeli settlements, the Wall and their associated
regime in the West Bank, including East Jerusalem; (d) to lift the blockade on the
Gaza Strip in all its aspects; (e) to respect and enforce the international status of
Jerusalem, including the historic status quo, and to repeal any legislative or
administrative measure that conflicts with the international status of the Holy City;
(f) to end and not reinstate any discrimination against Palestinians under any
pretext in violation of the prohibition on racial discrimination and apartheid; (g) to
recognize the right of Palestinian refugees to return to their homes and to receive
compensation in accordance with relevant United Nations resolutions, including
resolution 194 (III); and (h) to respect the right of the Palestinian people to selfdetermination,
including their right to the independence of the State of Palestine.
C. Restitution
7.91. The first and most indispensable steps to achieving restitution include:
(a) the immediate, unconditional and complete withdrawal of Israel, including its
occupying forces, from the OPT, including East Jerusalem; (b) the dismantling of
the illegal settlements and withdrawal of the settlers and the dismantling of the Wall
and their associated regime; (c) the annulment of the laws, regulations and orders
of annexation concerning Jerusalem and the rest of the West Bank as well as those
imposing a regime of racial discrimination tantamount to apartheid; and (d) the end
of the blockade on the Gaza Strip.
7.92. It follows that the restoration of the status quo ante requires the adoption
by Israel1166 of measures which annul the entire corpus of laws and regulations
which give effect to its illegal occupation and annexation of Palestinian territory,
1166 See para.7.32 above.
338
including the laws which authorize or facilitate Israeli settlements in the OPT and
which impose discriminatory restrictions on the rights of Palestinians.
7.93. It also requires Israel to adopt measures which reverse the consequences
which have resulted from the enactment and application of those laws. Accordingly,
Israel is required to take measures to ensure (amongst other things): (a) the return
of Palestinians expelled and uprooted from their homes, lands, cities and villages,
including their descendants; (b) the withdrawal of the Israeli settlers from the
Occupied Palestinian Territory, including East Jerusalem; (c) the return of
moveable and immovable property seized from Palestinians in the course of the
armed conflict and the occupation1167; and (d) the release of the Palestinians
deprived of their liberty including because of their status as Palestinians or for
reasons connected to their opposition to Israel’s illegal occupation of the OPT.
D. Compensation
7.94. While the establishment of the status quo ante would prevent the
occurrence of new damage for which further reparation would be due, it would in
no way remedy the damage suffered during the past 56 years of illegal occupation
of the OPT. This damage includes (but is by no means limited to): (a) the cost of
rebuilding or repairing the vast number of collective facilities destroyed or degraded
by Israel including health facilities and schools1168; (b) the losses caused by Israel’s
expropriation of the natural resources of Palestine1169, including the exploitation of
land and water resources and vast amounts of valuable minerals, the destruction of
structures for the management and allocation of water supply to Palestinians1170,
and the destruction of olive trees1171 and other sources of livelihood; (c) the vast
1167 See, e.g., Security Council, Resolution 686, 2 March 1991; Articles on State
Responsibility, p. 98, para. (6) of the commentary on Article 35.
1168 See WHO, Regional Office for the Eastern Mediterranean, “Attacks on health care during
the Great March of Return in Gaza”, Press release, 11 April 2019. See among other numerous
examples Euro-Med Human Rights Monitor, “Israel’s targeting of economic facilities in Gaza
signals disastrous consequences”, Press release, 19 May 2021. See also Armed Activities on the
Territory of the Congo, Reparations, Judgment, 9 February 2022, para. 240.
1169 See, e.g., General Assembly, Resolution 3175 (XXVIII), 17 December 1973, para. 3;
General Assembly, Resolution 31/186, 21 December 1976, para. 1.
1170 Human Rights Council, Report of the United Nations High Commissioner for Human
Rights, “The allocation of water resources in the Occupied Palestinian Territory, including East
Jerusalem”, 23 September 2021, A/HRC/48/43, paras. 24 and 34. See also B’Tselem, “Parched,
Israel’s policy of water deprivation in the West Bank”, May 2023 (https://tinyurl.com/2dpxa4cx).
1171 See e.g., Wall Opinion, p. 198, para. 153. See also Economic and Social Council,
Economic and social repercussions of the Israeli occupation on the living conditions of the
Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab
population in the occupied Syrian Golan, Note by the Secretary-General, 8 June 2022,
A/77/90-E/2022/66, p. 8, para. 41.
339
damage caused by the serious attacks by Israel on the economic and social
development of the State of Palestine and its population including, for example, the
blockade imposed on the Gaza Strip1172 and the impossibility for Palestinians to
access the fisheries resources available in a large part of the sea where they have a
right to fish under international law including in Palestine’s territorial waters and
EEZ, as well as their inability to access the hydrocarbon deposits in Palestine’s
continental shelf1173; (d) the damage to the environment of the Palestinian territory
caused by Israel including by the depositing and spreading of toxic substances1174;
(e) the cost of rehabilitating historical monuments and Palestinian cultural
treasures damaged by Israel1175.
7.95. As far as the damage caused to the Palestinian people by Israel’s
internationally wrongful acts is concerned, it includes (also without being
exhaustive): (a) confiscation of privately owned Palestinian land and destruction
of tens of thousands of Palestinian homes and other private property1176; (b) loss
of agricultural crops and livestock1177; (c) physical injury, pain and death caused
by Israel’s killing, torture and inhuman and degrading treatment of Palestinians and
its violations of their right to life1178; (d) medical expenses and losses of income
caused by the unlawful violence of Israel’s occupying forces and the unlawful
denial of access to healthcare facilities1179; (e) loss of liberty caused by Israel’s
arbitrary detention of hundreds of thousands of Palestinians1180; and (f) the moral
damage and considerable suffering (pretium doloris) resulting therefrom1181.
1172 See, e.g., UNCTAD, The Economic Costs of the Israeli Occupation for the Palestinian
People: The Impoverishment of Gaza under Blockade, 2020, UNCTAD/GDS/APP/2020/1;
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.
1173 See, e.g., General Assembly, Note by the Secretary-General, 10 October 2018, A/73/201,
para. 7.
1174 See, e.g., UNOCHA, “Environmental and health risk still unfolding: the bombing of
Gaza’s largest agrochemical warehouse”, Press release, 3 November 2021. See also Certain
Activities carried out by Nicaragua in the Border Area, Compensation, Judgment, I.C.J.
Reports 2018, p. 14, para. 41; Armed Activities on the Territory of the Congo, Reparations,
Judgment, 9 February 2022, para. 348. See also: General Assembly, Resolution 75/236,
21 December 2020, preamble and paras. 6 and 8.
1175 See, e.g., UNESCO, World Heritage Committee, Decision 44 COM 7A.10, Old City of
Jerusalem and its Walls, 31 July 2021, WHC/21/44.COM/18, pp. 27-28.
1176 See Chapter 3, paras. 3.101-3.104, Chapter 4, paras. 4.175-4.183 and Chapter 5, para. 5.51.
1177 See Chapter 4, paras. 4.156 and 4.184, and Chapter 5, para. 5.79.
1178 See Chapter 4, paras. 4.32-4.109.
1179 See Chapter 4, paras. 4.66-4.91 and paras. 4.166-4.171.
1180 See Chapter 4, para. 4.32-4.50.
1181 See, e.g., WHO, Emergency Trauma Response to the Gaza Mass Demonstrations
2018-2019, “A One-Year Review of Trauma Data and the Humanitarian Consequences”, May 2019;
M/V “SAIGA” (No. 2), Judgment, ITLOS Reports 1999, pp. 66-67, paras. 173 and 175.
340
E. Satisfaction
7.96. Here again, the present advisory proceedings might not be the proper
framework to address in detail the forms of the satisfaction to be offered by Israel
to the State of Palestine and the Palestinian people for the material and moral
damage suffered as a result of Israel’s misconduct. Among other steps, satisfaction
could take the form of solemn speeches by the highest political authorities of the
Israeli State recognizing responsibility and apologising for the injury done1182
and/or of a lump sum of money to erase the traces of the occupation1183 and the
suffering endured by the Palestinian people and to encourage cooperation between
the two States1184.
7.97. However, without prejudice to the obligations already incumbent on
Israel1185, there is one form of satisfaction which is not only appropriate but
indispensable in the circumstances of the case, and which is the necessary
consequence of the violation of certain rules of international law by Israel. This is
the obligation to investigate and prosecute individuals who have initiated, or
contributed to, Israel’s serious breaches of international obligations deriving from
peremptory rules of international law.
1182 See, e.g., Case concerning the differences between New Zealand and France arising from
the Rainbow Warrior Affair, Ruling, 6 July 1986, RIAA, Vol. XIX, p. 213; LaGrand, Judgment,
I.C.J. Reports 2001, p. 489, para. 63; Certain Iranian Assets, Judgment, 30 March 2023, para. 232.
1183 Mavrommatis Jerusalem Concessions, Judgment, 1925, P.C.I.J., Series A, No. 5, p. 21;
Arctic Sunrise Arbitration, PCA Case No. 2014-02, Award on Compensation, 10 July 2017, RIAA,
Vol. XXXII, p. 341, para. 84.
1184 Case concerning the differences between New Zealand and France arising from the
Rainbow Warrior Affair, Ruling, 6 July 1986, RIAA, Vol. XIX, p. 215, para. 5; Armed Activities on
the Territory of the Congo, Reparations, Judgment, 9 February 2022, para. 391.
1185 Ibid., para. 390.
341
Part B.
LEGAL CONSEQUENCES FOR OTHER STATES AND INTERNATIONAL
ORGANISATIONS, INCLUDING THE UNITED NATIONS
7.98. This Part of Chapter 7 addresses the legal consequences for third States
and international organisations, including the United Nations “arising from the
ongoing violations by Israel of the right of the Palestinian people to selfdetermination,
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”, as requested
in paragraph 18 (a) of resolution 77/247 of the General Assembly.
7.99. The Court’s Advisory Opinion in this matter will be an authoritative
statement of the law applicable to States and the United Nations. As the Special
Chamber of ITLOS explained in its 2021 Judgment in the Dispute concerning the
Delimitation of the maritime boundary between Mauritius and Maldives, “it is …
recognized that an advisory opinion entails an authoritative statement of
international law on the questions with which it deals”1186.
7.100. The ITLOS Special Chamber elaborated on the “authoritative nature”
of the Court’s advisory opinions:
“[J]udicial determinations made in advisory opinions carry no less weight
and authority than those in judgments because they are made with the same
rigour and scrutiny by the ‘principal judicial organ’ of the United Nations
with competence in matters of international law.
.......................................................................................................................
In the Special Chamber’s view, determinations made by the ICJ in an
advisory opinion cannot be disregarded simply because the advisory
opinion is not binding.”1187
7.101. The Opinion of the Court and the ITLOS Special Chamber thus relied
on the Court’s “authoritative” determination that the Chagos Archipelago was an
integral part of Mauritius’ territory under international law to conclude that the
1186 Delimitation of the maritime boundary in the Indian Ocean, Preliminary Objections,
Judgment, ITLOS Reports 2020-2021, p. 77, para. 202.
1187 Ibid., pp. 61-63, paras. 203 and 205.
342
Archipelagos was not in doubt; in doing so, the Special Chamber rejected the
argument that the Court’ statement of the law was less authoritative because it was
issued in an advisory proceeding rather than in a contentious case1188.
7.102. There is a consistent pattern of collective action – both by the General
Assembly and a majority of States – in favour of respecting advisory opinions1189.
Three months after the Court issued its Opinion in Chagos the General Assembly
adopted resolution 73/295 which, after reaffirming the Court’s principal findings:
“Demand[ed] that the United Kingdom of Great Britain and Northern
Ireland withdraw its colonial administration from the Chagos Archipelago
unconditionally within a period of no more than six months from the
adoption of the present resolution, thereby enabling Mauritius to complete
the decolonization of its territory as rapidly as possible”1190
and:
“Urge[d] the United Kingdom of Great Britain and Northern Ireland to
cooperate with Mauritius in facilitating the resettlement of Mauritian
nationals, including those of Chagossian origin, in the Chagos Archipelago,
and to pose no impediment or obstacle to such resettlement”1191.
7.103. Specifically in regard to third States, the resolution:
“Call[ed] upon all Member States to cooperate with the United Nations to
ensure the completion of the decolonization of Mauritius as rapidly as
possible, and to refrain from any action that will impede or delay the
completion of the process of decolonization of Mauritius in accordance with
the advisory opinion of the Court and the present resolution”.1192
7.104. Another pertinent example is the resolution adopted by the General
Assembly following the Advisory Opinion on Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970) (the “Namibia
1188 Ibid.
1189 See the systematic review in M.N. Shaw and S. Rosenne, Rosenne’s Law and Practice of
the International Court: 1920-2015, 5th edn. (Brill Nijhoff, 2016), pp. 310-332.
1190 General Assembly, Resolution 73/295, 22 May 2019, para. 3.
1191 Ibid., para. 5.
1192 Ibid., para. 5.
343
Opinion”).1193 In resolution 2871 (XXVI), the General Assembly underlined the
significance attributed to advisory opinions rendered by the Court by not only
quoting or paraphrasing various passages of the Namibia Opinion, but also
“6. Call[ing] upon all States:
(a) To respect strictly the resolutions of the General Assembly and the
Security Council concerning Namibia, and the advisory opinion of the
International Court of Justice of 21 June 1971.”1194
7.105. Similarly, the General Assembly, following the advisory opinion on the
Wall built by Israel in the OPT, adopted a resolution
“Demand[ing] that Israel, the occupying Power, comply with its legal
obligations as mentioned in the advisory opinion;
Call[ing] upon all States Members of the United Nations to comply with
their legal obligations as mentioned in the advisory opinion”1195.
7.106. Third States would thus be expected to uphold their legal obligations as
resulting from the legal determinations made by the Court in its Opinion. This
Opinion would also have legal consequences for international organisations,
especially the United Nations. In view of the Court’s role and status as the
“principal judicial organ” of the United Nations, and since an advisory opinion
“represents its participation in the activities of the Organization”1196, the organs of
the United Nations may not properly depart from the position taken by the Court
when they are called upon to pronounce on legal matters1197.
1193 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.
1194 General Assembly, Resolution 2871 (XXVI), 20 December 1971, para. 6 (emphasis
added).
1195 General Assembly, Resolution ES-10/15, 20 July 2004, paras. 2 and 3.
1196 Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, I.C.J. Reports 2019, p. 113, para. 65 quoting “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 (I), pp. 78-79, para. 29; Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004 (I), p. 156, para. 44”.
1197 Scholars’ views are unanimous in this respect. See, e.g., R. Kolb, The International Court
of Justice (Hart Publishing, 2014), pp. 1094-1100, and the doctrinal references given therein.
344
7.107. This is well-illustrated by resolution 73/295, implementing the Court’s
Opinion in Chagos, in which the General Assembly:
“Call[ed] upon the United Nations and all its specialized agencies to
recognize that the Chagos Archipelago forms an integral part of the territory
of Mauritius, to support the decolonization of Mauritius as rapidly as
possible, and to refrain from impeding that process by recognizing, or giving
effect to any measure taken by or on behalf of, the ‘British Indian Ocean
Territory’.”1198
7.108. The remainder of Part B follows the framework adopted by the
International Law Commission in Articles 40 and 41 of the 2001 Articles on State
Responsibility concerning the particular consequences of serious breaches of
obligations under peremptory norms of general international law1199.
I. The Obligation of Non-Recognition
A. THE OBLIGATION ON STATES1200
7.109. The obligation on States not to recognize any situation resulting from a
serious breach of an obligation arising under a peremptory norm of general
international law is provided for in Article 41, paragraph 2, of the ILC Articles on
Responsibility of States for Internationally Wrongful Acts, which states:
1198 General Assembly, Resolution 73/295, 22 May 2019, para. 6.
1199 Articles 40 and 41 of 2001 correspond, mutatis mutandis, to Articles 41 and 42 in the 2011
ILC Articles on the Responsibility of international organisations for internationally wrongful acts.
However, neither the 2001 Articles nor the 2011 Articles deal with the responsibility of States visà-
vis international organisations. In the remainder of this Chapter, the State of Palestine will only
refer to the Articles on State Responsibility.
1200 Given that virtually all States are members of the United Nations or, as did the State of
Palestine, have accepted the principles of the Charter (see General Assembly, Resolution 67/19,
Statute of Palestine in the United Nations, 29 November 2012), there is no practical utility in
distinguishing between the consequences for Members and non-Members States. In the Namibia
Advisory Opinion, the Court noted that “the declaration of the illegality of South Africa’s presence
in Namibia [being] opposable to all States in the sense of barring erga omnes the legality of a
situation which is maintained in violation of international law: in particular, no State which enters
into relations with South Africa concerning Namibia may expect the United Nations or its Members
to recognize the validity or effects of such relationship, or of the consequences thereof” (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. 56, para. 126 (emphasis added)).
345
“No State shall recognize as lawful a situation created by a serious breach
within the meaning of article 40[1201], nor render aid or assistance in
maintaining that situation.”1202
This provision reflects an undeniable rule of customary international law1203.
7.110. In 1971, in the Namibia Opinion, the Court stated that:
“[M]ember States [of the United Nations] are under obligation to abstain
from entering into treaty relations with South Africa in all cases in which
the Government of South Africa purports to act on behalf of or concerning
Namibia. With respect to existing bilateral treaties, member States must
abstain from invoking or applying those treaties or provisions of treaties
concluded by South Africa on behalf of or concerning Namibia which
involve active intergovernmental co-operation.
.......................................................................................................................
In the view of the Court, the termination of the Mandate and the declaration
of the illegality of South Africa’s presence in Namibia are opposable to all
States in the sense of barring erga omnes the legality of a situation which is
maintained in violation of international law: in particular, no State which
enters into relations with South Africa concerning Namibia may expect the
United Nations or its Members to recognize the validity or effects of such
relationship, or of the consequences thereof.”1204
7.111. This obligation of non-recognition has been reiterated on numerous
subsequent occasions. For example, the Security Council has emphasized the duty
not to recognize situations resulting from violations of peremptory norms of
international law, notably in its resolution 276 (1970) concerning South Africa, in
which it:
“2. Declare[d] that the continued presence of the South African authorities
in Namibia is illegal and that consequently all acts taken by the Government
1201 According to Article 40, “a serious breach by a State of an obligation arising under a
peremptory norm of general international law … involves a gross or systematic failure by the
responsible State to fulfil the obligation.”
1202 Ibid., Article 41, paragraph 2.
1203 ILC Yearbook, 2001, Vol. II, Part 2, pp. 114-115, paras. (6), (11) and (12) of the
commentary to Article 41.
1204 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. 55-56, paras. 122 and 126.
346
of South Africa on behalf of or concerning Namibia after the termination of
the Mandate are illegal and invalid;”
and:
“5. Call[ed] upon all States, particularly those which have economic and
other interests in Namibia, to refrain from any dealings with the
Government of South Africa which are inconsistent with paragraph 2 of the
present resolution”1205.
7.112. The 1987 Declaration of the General Assembly on the Enhancement of
the Effectiveness of the Principle of Refraining from the Threat or Use of Force in
International Relations provides that “[n]either acquisition of territory resulting
from the threat or use of force nor any occupation of territory resulting from the
threat or use of force in contravention of international law will be recognized as
legal acquisition or occupation”1206.
7.113. In respect of Israel’s exploitation of its illegal occupation of the
Palestinian territory with the aim to annex, and thereby permanently acquire,
Palestinian territory, the Security Council emphasized that the establishment of
settlements has no legal validity and constitutes a flagrant violation under
international law and underlined the duty of non-recognition of acquisition of
territory by force and of distinction between the territory of the State of Israel and
the territories occupied since 1967 in its resolution 2334 (2016)1207.
7.114. The obligation not to recognize the situation resulting from Israel’s
violations of peremptory norms of international law was also recalled in
resolution 77/25 in November 2022, which called upon all States, consistent with
their obligations under the Charter and relevant Security Council resolutions, inter
alia, to uphold their obligation of non-recognition and distinction in the same terms
1205 Security Council, Resolution 276 (1970), 30 January 1970.
1206 General Assembly, Resolution 42/22, Declaration on the Enhancement of the
Effectiveness of the Principle of Refraining from the Threat or Use of Force in International
Relations, 18 November 1987, para. 10. See also Resolution 375 (IV), Draft Declaration on Rights
and Duties of States, 6 December 1949, paras. 9 and 11; Resolution 2625 (XXV), Declaration on
Principles of International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, 24 October 1970 or Conference on Security and
Co-operation in Europe, Final Act, Helsinki, 1975, Declaration on Principles Guiding Relations
between Participating States (“The participating States will likewise refrain from making each
other’s territory the object of military occupation or other direct or indirect measures of force in
contravention of international law, or the object of acquisition by means of such measures or the
threat of them. No such occupation or acquisition will be recognized as legal.”).
1207 Security Council, Resolution 2234 (2016), 23 December 2016.
347
as the Security Council. It called more specifically on States to ensure that
“agreements with Israel do not imply recognition of Israeli sovereignty over the
territories occupied by Israel in 1967”1208.
7.115. Again, in December 2022, the General Assembly
“Call[ed] upon all States, consistent with their obligations under
international law and the relevant resolutions, not to recognize, and not to
render aid or assistance in maintaining, the situation created by measures
that are illegal under international law, including those aimed at advancing
annexation in the Occupied Palestinian Territory, including East Jerusalem,
and other Arab territories occupied by Israel since 1967”1209.
7.116. For its part, the Court, in the Wall Opinion, firmly pointed to the
obligation of other States “not to recognize the illegal situation resulting from the
construction of the wall in the Occupied Palestinian Territory, including in and
around East Jerusalem”1210.
7.117. In the specific context of Israel’s purported annexation of Jerusalem
through the passage of its “Basic Law: Jerusalem” in 19801211, the Security Council
adopted resolution 478 (1980) which specifically “[r]eaffirm[ed] again that the
acquisition of territory by force is inadmissible”. In that resolution the Security
Council stressed the obligation of all States not to recognize this breach of Israel’s
obligations arising under peremptory norms of general international law when it:
“Decide[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
and call[ed] upon:
(a) All Member States to accept this decision;
1208 General Assembly, Resolution 77/25, Peaceful settlement of the question of Palestine,
30 November 2022, para. 13. See also General Assembly Resolutions 2949 (XXVII),
8 December 1972; 3411 D (XXX), 28 November 1975; 31/106, 16 December 1976; 32/91,
13 December 1977; 32/161, Permanent sovereignty over national resources in the occupied Arab
territories, 19 December 1977; 33/113 C, 18 December 1978. See more recently General Assembly,
Resolutions 75/97, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and the occupied Syrian Golan, 10 December 2020; 77/187, Permanent sovereignty of
the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the
Arab population in the occupied Syrian Golan over their natural resources, 14 December 2022.
1209 General Assembly, Resolution 77/126, Israeli settlements in the Occupied Palestinian
Territory, including East Jerusalem, and the occupied Syrian Golan, 12 December 2022, para. 17.
1210 Wall Opinion, p. 200, para. 159.
1211 See paras. 3.53-3.57.
348
(b) Those States that have established diplomatic missions at Jerusalem to
withdraw such missions from the Holy City”1212.
7.118. The strong language used in this resolution – and in others which are
similar – (“Decides”, “Determines”, “Censures in the strongest terms”, “Deeply
concerned”, “Urges”, “Calls” etc.) reflects the Security Council’s intent to impose
a legal duty on all States1213. Article 25 of the United Nations Charter provides:
“The Members of the United Nations agree to accept and carry out the decisions of
the Security Council in accordance with the present Charter.” As the Court
explained in the Namibia Opinion, once the Security Council has adopted a
decision, “it is for member States to comply with that decision, including those
members of the Security Council which voted against it and those Members of the
United Nations who are not members of the Council”1214.
7.119. Similarly, as early as 1980, the United Nations General Assembly:
“Decide[d] not to recognize that ‘Basic Law’ [on Jerusalem] and such other
actions by Israel that, as result of this law, seek to alter the character and
status of Jerusalem, and call[ed] upon all States, specialized agencies and
other international organizations to comply with the present resolution and
other relevant resolutions and urges them not to conduct any business which
is not in conformity with the provisions of the present resolutions and the
other relevant resolutions.”1215
7.120. The General Assembly, most recently in its resolution 76/12,
“[r]ecall[ed], in particular, Security Council resolution 478 (1980) of 20 August
1212 Security Council, Resolution 478 (1980), 20 August 1980, para. 5. See also Security
Council, Resolutions 476 (1980), 30 June 1980; 2334 (2016), 23 December 2016. Concerning the
situation in Namibia, see Security Council, Resolution 276 (1970), 30 January 1970, paras. 2 and 5.
See also Namibia Opinion, I.C.J. Reports 1971, p. 55, para. 123 (“Member States, in compliance
with the duty of non-recognition imposed by paragraphs 2 and 5 of resolution 276 (1970), are under
obligation to abstain from sending diplomatic or special missions to South Africa including in their
jurisdiction the Territory of Namibia, to abstain from sending consular agents to Namibia, and to
withdraw any such agents already there. They should also make it clear to the South African
authorities that the maintenance of diplomatic or consular relations with South Africa does not imply
any recognition of its authority with regard to Namibia.”)
1213 See ibid., p. 53, para. 114. See, e.g., Security Council, Resolutions 476 (1980),
30 June 1980; 478 (1980), 20 August 1980; 1402 (2002), 30 March 2002; 1435 (2002),
24 September 2002; 1544 (2004), 19 May 2004.
1214 I.C.J. Reports 1971, p. 54, para. 116. See also United Nations Charter, Article 25, which
provides: “The Members of the United Nations agree to accept and carry out the decisions of the
Security Council in accordance with the present Charter.”
1215 General Assembly, Resolution 35/169 E, 15 December 1980, para. 5.
349
1980, in which the Council, inter alia, decided not to recognize the “Basic Law” on
Jerusalem, and such other actions by Israel that, as a result of this law, seek to alter
the character and status of Jerusalem, and call[ed] upon States to act in accordance
with the provisions therein”, before “[r]eiterat[ing] its determination that any
actions taken by Israel, the occupying Power, to impose its laws, jurisdiction and
administration on the Holy City of Jerusalem are illegal and therefore null and void
and have no validity whatsoever …”1216.
7.121. In view of the illegality of Israel’s 56-year occupation of the OPT, the
obligation of non-recognition necessarily applies to the totality of that wrongful act,
as well as to its myriad individual constituent elements and consequences. This
includes Israel’s annexation of Palestinian territory, as well as all measures aimed
at altering the demographic composition, character and status of the Holy City of
Jerusalem, and the OPT as a whole. The duty of non-recognition thus includes an
obligation on States not to treat any part of the OPT as part of Israel or subject to
its “sovereignty”. It also includes an obligation not to treat the city of Jerusalem as
“the capital of Israel” and to withdraw their diplomatic missions from it1217.
Furthermore, States are obliged not to enter into international agreements with
Israel that include any or all of the OPT, either expressly or impliedly, within the
subject matter or geographical scope of the treaty. States are also obligated not to
depict any portion of the OPT as part of the territory of Israel in any cartographic
material1218.
7.122. The obligation not to recognize any situation resulting from Israel’s
breach of obligations arising under a norm of jus cogens also has consequences
concerning economic relations. To paraphrase the Court’s formulation in the
Namibia Opinion1219, the obligation of non-recognition “imposes upon member
States [of the United Nations] the obligation to abstain from entering into economic
and other forms of relationship or dealings with [Israel] on behalf of or concerning
[OPT] which may entrench its authority over the [OPT]”. The same principle was
recalled both by the Security Council1220 and by the General Assembly1221, when
1216 General Assembly, Resolution 76/12, 1 December 2021, preamble and para. 1.
1217 See, e.g., Security Council, Resolution 478 (1980), 20 August 1980; General Assembly,
Resolutions 50/22, 4 December 1995; 71/25, 30 November 2016; ES-10/19, Status of Jerusalem,
21 December 2017; 76/12, 1 December 2021.
1218 Security Council, Resolution 2234 (2016), 23 December 2016, para. 5.
1219 See para. 7.110 above.
1220 See para. 7.113 above.
1221 See para. 7.114 above.
350
they stressed that States have “to distinguish, in their relevant dealings, between the
territory of the State of Israel and the territories occupied since 1967”1222.
7.123. States’ obligation of non-recognition also includes not to undertake any
action or adopt any stance that would recognize as lawful the situation resulting
from Israel’s racial discrimination tantamount to apartheid against the Palestinian
people, or from its denial of the right of the Palestinian people to self-determination,
including their right to the independence of the State of Palestine.
B. OBLIGATIONS FOR THE UNITED NATIONS
7.124. The obligation of non-recognition is as much a matter for the United
Nations as it is for third States. As various United Nations organs have recognized,
the Organisation bears the obligation not to recognize the illegal situation resulting
from serious breaches of peremptory norms of international law, including the
prohibition of aggression, the prohibition of racial discrimination and apartheid and
the right to self-determination1223.
7.125. In respect of the specific situation of the OPT, the General Assembly
has made clear in numerous contexts that the obligation of non-recognition applies
to international organisations, including the United Nations itself. Thus, for
example, resolution 3005 (XXVII):
“Calls upon all States, international organizations and specialized agencies
not to recognize or cooperate with, or assist in any manner in, any measures
undertaken by the occupying Power to exploit the resources of the occupied
territories or to effect any changes in the demographic composition or
geographic character or institutional structure of those territories”.1224
7.126. This is in line with the above-mentioned positions of the Security
Council and the General Assembly refusing to recognize the situation created by
Israel’s internationally wrongful acts1225. This obligation applies both to States and
to international organisations, in particular the United Nations. The obligation of
1222 Security Council, Resolution 2234 (2016), 23 December 2016, para. 5.
1223 See 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. 56, para. 126.
1224 General Assembly, Resolution 3005 (XXVII), 15 December 1972, para. 5 (emphasis
added). See also among very numerous resolutions, General Assembly, Resolutions 3240 (XXIX),
29 November 1974, para. 8; 31/106, 16 December 1976, para. 8; 32/91, 13 December 1977, para. 8;
32/161, 19 December 1977, para. 7; 33/113 C, 18 December 1978, para. 8.
1225 See paras. 7.112 and 7.119 above.
351
non-recognition requires that all United Nations documents, maps, and statements
are consistent with non-recognition of Israel’s wrongful acts, including its unlawful
occupation of Palestinian territory, its annexation of Palestinian territory and its
exercise of “sovereignty” over Palestinian territory. And it requires the United
Nations not to recognize, expressly or impliedly, Jerusalem as the “capital of Israel”
in any statement or act by the Organisation.
II. The Obligation not to Contribute to Violations of
the Rights of the Palestinian People
7.127. In addition to the obligation to refrain from recognizing situations
resulting from serious breaches of international law for which Israel is responsible,
all States and international organisations, including the United Nations must also
refrain from contributing to the violation of the rights of the Palestinian people. This
is the second consequence of the principles set out in Article 41 of the 2001 Articles
on State responsibility1226.
7.128. The Security Council expressly acknowledged this obligation in
resolution 465 of 1 March 1980, which “call[ed] upon all States not to provide
Israel with any assistance to be used specifically in connection with settlements in
the occupied territories”.1227 The General Assembly has repeatedly reiterated this
obligation, including most recently in November 20221228. Similarly, in the Wall
Opinion, the Court, after referring to the Wall and its associated regime constructed
by Israel in the OPT, including East Jerusalem, stated that: “[other States] are also
under an obligation not to render aid or assistance in maintaining the situation
created by such construction”1229.
7.129. The obligation of States not to contribute to the injury caused to the
Palestinian people by Israel’s serious breaches also derives from other particular
commitments, including for example Article 6, paragraph 3, of the Arms Trade
Treaty of 3 June 2013, which provides that:
“A State Party shall not authorize any transfer of conventional arms covered
under Article 2 (1) or of items covered under Article 3 or Article 4, if it has
knowledge at the time of authorization that the arms or items would be used
in the commission of genocide, crimes against humanity, grave breaches of
the Geneva Conventions of 1949, attacks directed against civilian objects or
1226 See para. 7.109 above.
1227 Security Council, Resolution 465 (1980), 1 March 1980, para. 7.
1228 General Assembly, Resolution 77/25, 30 November 2022, para. 13 (c).
1229 Wall Opinion, p. 200, para. 159.
352
civilians protected as such, or other war crimes as defined by international
agreements to which it is a Party.”1230
7.130. The obligation not to assist Israel in the maintenance of its illegal
occupation of the OPT, including its settlement and annexation of Palestinian
territory, means that any action by other States that may reinforce or consolidate
the illegal situation created by Israel’s internationally wrongful acts is prohibited.
This prohibition is in some respects similar to the obligation of non-recognition –
for example, with regard to the obligation not to enter into treaties which may
entrench Israel’s unlawful control over the occupied or annexed territories1231, or
the prohibition of trading in Israeli industrial or agricultural products or services
produced or harvested in the OPT1232. States should also be prohibited from
supplying arms to Israel that may be used in the OPT to perpetuate its unlawful
occupation, to preserve or expand its illegal settlements, or to discriminate against
the Palestinian people or deny them their fundamental rights, including their right
to self-determination.
7.131. The obligation of non-assistance is related to the protection of the right
to self-determination of peoples. It is expressly enshrined in the Friendly Relations
Declaration which states that “[e]very State has the duty to refrain from any forcible
action which deprives peoples … of their right to self-determination”1233. The duty
applies to the United Nations as well as to States. As set out above, under General
Assembly resolution 2005(XVII) “all States, international organizations and
specialized agencies” are required “not to recognize or cooperate with, or assist in
any manner in, any measures undertaken by the occupying Power to exploit the
resources of the occupied territories”1234.
7.132. The obligation not to contribute to Israel’s serious breaches of
obligations arising under peremptory norms of general international law also entails
1230 The Arms Trade Treaty, 2 April 2013, UNTS, Vol. 3013, p. 269 (entry into force:
24 December 2014). For the text of the treaty, see https://tinyurl.com/zayz6533.
1231 See 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. 55, para. 122.
1232 See fn. 1205 above.
1233 General Assembly, Resolution 2625 (XXV), 24 October 1970, Annex. See also Wall
Opinion, p. 199, para. 156 and Legal consequences of the separation of the Chagos Archipelago
from Mauritius in 1965, Advisory Opinion, Separate opinion of Judge Sebutinde, I.C.J.
Reports 2019, p. 276, para. 12.
1234 See fn. 1214 above.
353
a prohibition on carrying out any project in the occupied State of Palestine,
including its territory, airspace and maritime zone which:
– is not in the interest of the protected population of this territory; and
– has not received the approval of the State of Palestine.
7.133. The primacy of the interests of the protected population of the OPT, as
a constituent element of the State of Palestine, is enshrined in common Articles 1,
paragraph 1, of the International Covenants of 1966 which provide:
“The right of peoples and nations to permanent sovereignty over their
natural wealth and resources must be exercised in the interest of their
national development and of the well-being of the people of the State
concerned.”1235
7.134. In the Namibia Opinion, the Court recalled the imperative need to
consider the interests of the affected population when determining which acts and
measures should be recognized notwithstanding the general obligation of nonrecognition
described in Section I above:
“In general, the non-recognition of South Africa’s administration of the
Territory should not result in depriving the people of Namibia of any
advantages derived from international co-operation. In particular, while
official acts performed by the Government of South Africa on behalf of or
concerning Namibia after the termination of the Mandate are illegal and
invalid, this invalidity cannot be extended to those acts, such as, for
instance, the registration of births, deaths and marriages, the effects of
which can be ignored only to the detriment of the inhabitants of the
Territory.”1236
7.135. Accordingly, “the non-recognition of [Israel’s] administration of the
Territory should not result in depriving the [Palestinian] people of any advantages
derived from international co-operation.”1237 The assessment of the interest of the
1235 Emphasis added.
1236 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. 56, para. 125. See also General Assembly, Resolution 1803 (XVII),
Permanent sovereignty over natural resources, 14 December 1962, para. 1.
1237 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. 56, para. 125.
354
Palestinian people in a particular action or development project must be done not
by the occupying Power but by the legitimate representative of the people
concerned.
7.136. As reflected in several United Nations resolutions, notably
resolution 67/19 adopted by the General Assembly on 29 November 2012, it has
been:
“Decide[d] to accord to Palestine non-member observer State status in the
United Nations, without prejudice to the acquired rights, privileges and role
of the Palestine Liberation Organization in the United Nations as the
representative of the Palestinian people, in accordance with the relevant
resolutions and practice”1238.
7.137. Accordingly, any agreement, project, or act on the territory of the State
of Palestine must be in the interest of the Palestinian people and that interest can
only be assessed by the legitimate representative of this people.
7.138. Plainly, racial discrimination tantamount to apartheid against the
Palestinian people is not in their interest. Accordingly, all States are also under an
obligation not to render aid or assistance to Israel’s policies and practices in this
regard, and this obligation includes ensuring that their political, diplomatic,
military, economic, financial relations, among others, with Israel do not contribute,
directly or indirectly to the perpetuation of the systemic racial discrimination
against the Palestinian people.
III. The Obligation to Cooperate to Protect the Rights of the Palestinian
People and to End Israel’s Violations of Those Rights
7.139. The twin obligations to refrain from recognising as lawful, and to
refrain from contributing to, situations violating peremptory norms of international
law are accompanied by a positive obligation to cooperate with a view to bringing
such violations to an end. This duty is codified in the first paragraph of Article 41
of the ILC Articles on the International Responsibility of States for Internationally
Wrongful Acts, which provides that:
“States shall cooperate to bring to an end through lawful means any serious
breach within the meaning of article 40.”1239
1238 General Assembly, Resolution 67/19, Status of Palestine in the United Nations,
29 November 2012, para. 2. See also Resolution 43/177, Question of Palestine, 15 December 1988.
1239 For the definition of such a breach, see fn. 1200 above.
355
7.140. The ILC’s commentary notes that this provision does not
“prescribe what measures States should take in order to bring to an end
serious breaches in the sense of article 40. Such cooperation must be through
lawful means, the choice of which will depend on the circumstances of the
given situation. It is, however, made clear that the obligation to cooperate
applies to States whether or not they are individually affected by the serious
breach. What is called for in the face of serious breaches is a joint and
coordinated effort by all States to counteract the effects of these
breaches.”1240
7.141. The first step required by this duty of cooperation is the clear,
unambiguous and explicit recognition of the illegality of Israel’s occupation of the
Palestinian territory, in the same way that States were required to recognize the
illegality of South Africa’s occupation of Namibian territory. As the Court
explained in the Namibia opinion: “The member States of the United Nations are …
under obligation to recognize the illegality and invalidity of South Africa’s
continued presence in Namibia.”1241 The Court added:
“As to the general consequences resulting from the illegal presence of South
Africa in Namibia, all States should bear in mind that the injured entity is a
people which must look to the international community for assistance in its
progress towards the goals for which the sacred trust was instituted.”1242
7.142. Similarly, in the Chagos Opinion, the Court declared that “all Member
States must co-operate with the United Nations to complete the decolonization of
Mauritius”1243.
7.143. The Court’s conclusions in the Namibia and Chagos Opinions are
transposable to the present context, where Israel’s presence in the OPT is illegal
and gives rise to a duty on all States to assist in putting an end to that situation – a
duty that must be translated into meaningful assistance for the Palestinian people,
whose rights, sovereignty and development is impeded by the protracted illegal
1240 Draft Articles on State Responsibility of States for Internationally Wrongful Acts, ILC
Yearbook, 2001, Vol. II, Part 2, p. 114, para. (3) of the commentary to Article 41.
1241 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. 54, para. 119.
1242 Ibid., p. 56, para. 127.
1243 Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, I.C.J. Reports 2019, p. 140, para. 182.
356
occupation of the Palestinian Territory and the system of subjugation, oppression,
and persecution that maintains it.
7.144. Third States and the United Nations have the obligation to enable the
Palestinian people to exercise their right to self-determination as derived from
Article 1(2) of the Charter of the United Nations, which provides that one of the
purposes of the United Nations and its Member States is “[t]o develop friendly
relations among nations based on respect for the principle of equal rights and selfdetermination
of peoples, and to take other appropriate measures to strengthen
universal peace”.
7.145. This obligation is also confirmed by common Article 1 of the two
International Covenants of 1966 on Economic Social and Cultural Rights and on
Civil and Political Rights, to which Israel is a party,1244 which provide that:
“1. All 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.
2. All peoples may, for their own ends, freely dispose of their natural wealth
and resources without prejudice to any obligations arising out of
international economic co-operation, based upon the principle of mutual
benefit, and international law. In no case may a people be deprived of its
own means of subsistence.
3. The States Parties to the present Covenant … shall promote the
realization of the right of self-determination, and shall respect that right, in
conformity with the provisions of the Charter of the United Nations.”
7.146. The duty to cooperate to enable the self-determination of the Palestinian
people includes facilitating the exercise of both the right “to self-determination”,
including “to independence in their State of Palestine on the Palestinian territory
occupied since 1967”.1245 This obligation has been underlined by the United
Nations General Assembly, notably in its resolution 77/208 adopted on
15 December 2022, which:
1244 International Covenant on Civil and Political Rights, 16 December 1966 (entry into force:
23 March 1976) UNTS, Vol. 999, p. 171; International Covenant on Economic, Social and Cultural
Rights, 16 December 1966 (entry into force: 3 January 1976), UNTS, Vol. 993, p. 3. For the
ratifications of the Covenants by Israel, see UNTS, Vol. 1651, p. 566, and p. 564.
1245 General Assembly, Resolution 67/19, Status of Palestine in the United Nations,
29 November 2012, para. 1.
357
“1. Reaffirms the right of the Palestinian people to self-determination,
including the right to their independent State of Palestine;
2. Urges all States and the specialized agencies and organizations of the
United Nations system to continue to support and assist the Palestinian
people in the early realization of their right to self-determination.”1246
7.147. This duty to cooperate also extends to upholding the prohibition of
racial discrimination and apartheid and putting an end to all Israeli legislation and
measures that have breached this prohibition since 1948 and to this day.
7.148. The possible modalities for cooperation by States and the United
Nations to end the violation of the rights of the Palestinian people are numerous. In
general, States and the United Nations must do their utmost to ensure an end to
Israel’s serious breaches of the fundamental rights of the Palestinian people,
including to self-determination, an end to Israel’s illegal occupation, settlement and
annexation of Palestinian territory, an end to Israel’s discriminatory legislation and
measures, including systematic racial discrimination and apartheid against the
Palestinian people on both sides of the Green Line, an end to Israel’s policies and
laws prohibiting Palestinian refugees and other displaced Palestinians from
exercising their right to return and compensation, and an end to Israel’s laws and
practices aimed at changing the character, status and demographic composition of
the Holy City of Jerusalem and the OPT as a whole.
7.149. The duty of all States and of the United Nations to cooperate to end
these acts and practices that violate peremptory rules of international law excludes
the possibility of making Israel’s compliance with these norms of international law
conditional on any abandonment or limitation of sovereign rights by the State of
Palestine. Since the norms violated by Israel are jus cogens norms from which there
can be no derogation, there can be no conditionality on compliance with them,
including especially the obligation of non-recognition.1247
1246 See also General Assembly, Resolution 76/126, Assistance to the Palestinian people,
10 December 2021. For a partial list of resolutions to the same effect, see Chapter 5, paras. 5.25-
5.27 above.
1247 Vienna Convention on the Law of Treaties, Article 53; Draft Articles on State
Responsibility of States for Internationally Wrongful Acts, ILC Yearbook, 2001, Vol. II, Part 2,
p. 73, para. (7) of the commentary to Article 20, and pp. 114-115, para. (4) or the commentary to
Article 26.
358
7.150. Moreover, as explained above, as a consequence of the “principle of
transparency” attached to the jus cogens nature of the norms breached by Israel,1248
States and the United Nations have an obligation to cooperate in order to investigate
and bring to justice those responsible for crimes related to the unlawful
colonization, of East Jerusalem and the rest of the West Bank, or the unlawful
annexation of Jerusalem and the rest of the West Bank, or, more generally, the
violations of the fundamental rights of the Palestinian people, including to selfdetermination
and to be free of systematic racial discrimination and apartheid.
7.151. This obligation is a special duty related to the obligation to assist, and
it also arises from the Fourth Geneva Convention, which is applicable to the OPT,
including East Jerusalem.1249 As provided for in Article 1 of the Convention, “[t]he
High Contracting Parties undertake to respect and to ensure respect for the present
Convention in all circumstances.” And, as provided for in Article 146 of the same
Convention:
“Each High Contracting Party shall be under the obligation to search for
persons alleged to have committed, or to have ordered to be committed, such
grave breaches, and shall bring such persons, regardless of their nationality,
before its own courts. It may also, if it prefers, and in accordance with the
provisions of its own legislation, hand such persons over for trial to another
High Contracting Party concerned, provided such High Contracting Party
has made out a ‘prima facie’ case.”1250
7.152. By virtue of this provision, as well as of the general obligation to
cooperate reflected in Article 41 of the ILC Articles on the Responsibility of States,
1248 See R. Maison, “The ‘Transparency’ of the State”, in J. Crawford, A. Pellet and S. Olleson
(eds.), The Law of International Responsibility (Oxford University Press, 2010), pp. 717-718.
1249 Wall Opinion, p. 177, para. 101. See also General Assembly, Resolution 72/85,
Applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of
War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem, and the
other occupied Arab territories, 7 December 2017 and Security Council, Resolution 694 (1991),
24 May 1991, para. 1.
1250 According to the ICRC, the obligation of on all High Contracting Parties “to ensure
respect” is not a “loose pledge but a commitment vested with legal force” (ICRC, Commentary of
2016 of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field of 12 August 1949, para. 170). The ICRC goes on to say that when violations of
the Geneva Conventions occur, the High Contracting Parties will only satisfy their obligations under
Article 1 “as long as they have done everything reasonably in their power to bring the violations to
an end” (ibid, para. 165). In Bosnia and Herzegovina (2007), the Court observed that Article 1’s
requirement to “undertake” was “not merely hortatory or purposive”, or meant to simply “introduce
subsequent obligations”, but was itself intended to “accept an obligation” (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, I.C.J.
Reports 2007, p. 111, para. 162).
359
the obligation is one owed by all States. The same holds true, for example, in respect
of the International Convention on the Elimination of All Forms of Racial
Discrimination concluded on 21 December 19651251.
7.153. Furthermore, Article 148 of the Fourth Geneva Convention provides
that “no High Contracting Party shall be allowed to absolve itself or any other High
Contracting Party of any liability incurred by itself or by another High Contracting
Party” in respect of grave breaches of the rights mentioned in Article 147 of the
Convention, e.g.:
“wilful killing, torture or inhuman treatment, including biological
experiments, wilfully causing great suffering or serious injury to body or
health, unlawful deportation or transfer or unlawful confinement of a
protected person, compelling a protected person to serve in the forces of a
hostile Power, or wilfully depriving a protected person of the rights of fair
and regular trial prescribed in the present Convention, taking of hostages
and extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly”1252.
7.154. The Conference of High Contracting Parties of the Fourth Geneva
Convention held on 5 December 2001, “call[ed] upon all parties, directly involved
in the conflict or not, to respect and to ensure respect for the Geneva Conventions
in all circumstances, to disseminate and take measures necessary for the prevention
and suppression of breaches of the Conventions” and “reaffirm[ed] the obligations
of the High Contracting Parties under articles 146, 147 and 148 of the Fourth
Geneva Convention with regard to penal sanctions, grave breaches and
responsibilities of the High Contracting Parties”. The Conference also “call[ed]
upon the Occupying Power to immediately refrain from committing grave breaches
involving any of the acts mentioned in art. 147 of the Fourth Geneva Convention,
such as wilful killing, torture, unlawful deportation, wilful depriving of the rights
of fair and regular trial, extensive destruction and appropriation of property not
justified by military necessity and carried out unlawfully and wantonly” and
“recall[ed] that according to art. 148 no High Contracting Party shall be allowed to
absolve itself of any liability incurred by itself in respect to grave breaches”1253.
1251 See in particular Articles 2 and 3 of the Convention ratified by Israel on 3 January 1979
(UNTS, Vol. 1136, p. 416).
1252 In the same vein, see, mutatis mutandis, Articles 6 and 7 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by Israel on 3 October
1991 (UNTS, Vol. 1651, p. 580).
1253 Conference of High Contracting Parties to the Fourth Geneva Convention, Declaration,
5 December 2001, paras. 4 and 13.
360
The Conference of the High Contracting Parties held in December 2014 reaffirmed
this statement1254.
7.155. Although the present request for an advisory opinion does not concern
genocide, it is appropriate to recall the findings of the Court in its 2007 Judgment
in the Genocide case since the general reasoning is also applicable by analogy in
the present case:
“[T]he Applicant asks the Court in this respect to decide more specifically
that ‘[the Respondent] shall immediately take effective steps to ensure full
compliance with its obligation to punish acts of genocide under the
Convention on the Prevention and Punishment of the Crime of Genocide or
any other act prohibited by the Convention and to transfer individuals
accused of genocide or any other act prohibited by the Convention to the
International Criminal Tribunal for the former Yugoslavia and to fully cooperate
with this Tribunal.’
It will be clear from the Court's findings above on the question of the
obligation to punish under the Convention that it is satisfied that the
Respondent has outstanding obligations as regards the transfer to the ICTY
of persons accused of genocide, in order to comply with its obligations
under Articles I and VI of the Genocide Convention …”1255.
7.156. On this basis, the Court, by fourteen votes to one, found that the
respondent State has:
“violated its obligations under the Convention on the Prevention and
Punishment of the Crime of Genocide by having failed to transfer Ratko
Mladić, indicted for genocide and complicity in genocide, for trial by the
International Criminal Tribunal for the former Yugoslavia, and thus having
failed fully to co-operate with that Tribunal”1256.
7.157. By parity of reasoning, it is incumbent on any State which is in a
position to arrest or assist in the arrest of the perpetrators or other persons
1254 Conference of High Contracting Parties to the Fourth Geneva Convention, Declaration,
17 December 2014 (https://undocs.org/A/69/711, Annex).
1255 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide, Judgment, I.C.J. Reports 2007, p. 235, paras. 464-465.
1256 Ibid., p. 238, para. 471 (6).
361
responsible for the serious breaches attributable to Israel, to try those individuals or
to investigate their responsibilities in order to fulfil these obligations1257.
7.158. In the Wall Opinion, the Court itself affirmed the obligation of States
“to ensure compliance by Israel with international humanitarian law as embodied
in [the Fourth Geneva] Convention”1258. Similarly, every State must ensure
compliance with Article IV of the Apartheid Convention and with other relevant
human rights conventions by prosecuting individuals within its territory who are
responsible for gross violations of the rights of the Palestinian people.
7.159. As for the United Nations, the Organisation too should make every
effort to bring the perpetrators of these crimes to trial. In particular, the Security
Council can and should rely on Article 13 of the Rome Statute to refer the situation
to the ICC Prosecutor. This article provides that:
“The Court may exercise its jurisdiction with respect to a crime referred to
in article 5 in accordance with the provisions of this Statute if:
.......................................................................................................................
(b) A situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by the Security Council acting under
Chapter VII of the Charter of the United Nations”.
7.160. Under the Rome Statute, the ICC has jurisdiction to judge crimes
against humanity1259, the definition of which, given in Article 7, includes: “(a)
Murder ...; (d) Deportation or forcible transfer of population; (e) Imprisonment or
other severe deprivation of physical liberty in violation of fundamental rules of
international law; (f) Torture …; (h) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural, religious … grounds …;
1257 This obligation is reiterated in numerous conventions including the Convention on the
Prevention and Punishment of the Crime of Genocide, Article VI; Convention (IV) relative to the
Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, Article 146; Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
10 December 1984, Articles 6 and 7.
1258 Wall Opinion, p. 200, para. 159.
1259 See Article 5 (b) of the Rome Statute of which the State of Palestine is a Party (Palestine
adhered to the Rome Statute on 2 January 2015 (see UNTS, Vol. 3023, p. 354 and the dedicated page
on the United Nations Treaty Collection website, https://tinyurl.com/yyx7a64x). Concerning the
State of Palestine’s accession to the Statute and its activity in the Court’s organs, see ICC, Pre-Trial
Chamber 1, Situation in the State of Palestine, Decision on the ‘Prosecution request pursuant to
article 19 (3) for a ruling on the Court’s territorial jurisdiction in Palestine’, ICC-01/18,
5 February 2021, pp. 44-45, para. 100.
362
(i) Enforced disappearance of persons [and] (j) The crime of apartheid” – all of
which are acts that Israel is committing as part of its widespread and systematic
attack directed against the Palestinian people. The ICC has also jurisdiction over
war crimes, the definition of which given in Article 8, includes: “(a) [g]rave
breaches of the Geneva Conventions of 12 August 1949” and “(b) [o]ther serious
violations of the laws and customs applicable in international armed conflict, within
the established framework of international law”.
7.161. Some States have supported the reference of these acts to the ICC
Prosecutor in conformity with the obligation to assist; a few, however, have
opposed the referral by the State of Palestine1260. The Security Council has not used
its capacity to initiate prosecution by referring the situation to the Prosecutor.
However, the Prosecutor has found: “There is a reasonable basis to believe that war
crimes have been or are being committed in the West Bank, including East
Jerusalem, and the Gaza Strip.”1261 This assertion was accepted by the Pre-Trial
Chamber1262. Moreover, the Chamber also noted that “[t]he initiation of an
investigation by the Prosecutor also means that States Parties are under the
obligation to cooperate with the Court pursuant to part 9 of the Statute”1263. All
States Parties have a duty to fulfil this obligation.
Conclusions
7.162. The following conclusions can be drawn from the above:
(a) Given their predominant character as serious breaches of obligations arising
under peremptory norms of general international law, Israel’s violations of
those obligations entail its responsibility to the international community as a
1260 Ibid., pp. 26-27, para. 53 and the references to the written proceedings; see also ibid., p. 45,
para. 101. The United States of America went as far as adopting the Executive Order 13928,
“Blocking Property of Certain Persons Associated With the International Criminal Court”,
11 June 2020. With this Executive Order, the United States intended to freeze the assets of all ICC
staff and restrict their access to US territory because of the ICC’s efforts to investigate, arrest, detain
and prosecute US nationals and nationals of its allies, including Israel. This Executive Order was
revoked by US President J. Biden on 1 April 2021 (see The White House, Executive Order on the
Termination of Emergency With Respect to the International Criminal Court
(https://tinyurl.com/c33mh3nk)). See also US Department of State, Ending Sanctions and Visa
Restrictions against Personnel of the International Criminal Court, Press Statement, A. J. Blinken,
Secretary of State, 2 April 2021 (https://tinyurl.com/3b4ssfwc).
1261 ICC, Pre-Trial Chamber 1, Situation in the State of Palestine, Decision on the ‘Prosecution
request pursuant to article 19 (3) for a ruling on the Court’s territorial jurisdiction in Palestine’,
ICC-01/18, 5 February 2021, pp. 30-31, para. 64.
1262 Ibid., p. 31, para. 65.
1263 Ibid., p. 38, para. 86 (emphasis added).
363
whole, and impose particular duties both on third States and on the United
Nations itself;
(b) Primarily, both third States and the United Nations (as well as any other
international organisation concerned) must refrain from recognizing as lawful,
or rendering aid or assistance to, the situation which Israel has created by virtue
of its wrongful acts, including: a) its unlawful annexation of Jerusalem and the
rest of the West Bank; b) its unlawful racial discrimination against the
Palestinian people tantamount to apartheid; c) its unlawful denial of the right
of the Palestinian people to self-determination; and d) its unlawful occupation.
(c) These general obligations have very concrete consequences which include (but
are by no means limited to):
– The obligation not to recognise, expressly or impliedly, Israel’s
jurisdiction or any “sovereign” claims by Israel over any part of the
territory of the State of Palestine, including its airspace and maritime
zones;
– The obligation not to recognize, expressly or impliedly, as valid Israel’s
claim that Jerusalem is its capital, including by moving diplomatic
representations or offices to Jerusalem and by withdrawing any
representations already there and upholding the unique universal
character and status of the City, including respect for the historic status
quo;
– The obligation not to recognise, expressly or impliedly, Israel as a
legitimate authority or having any jurisdiction in Jerusalem and the rest
of the OPT, and not recognise, expressly or impliedly, any decisions
emanating from its institutions, including governmental or administrative
bodies, courts, or military decisions;
– The obligation not to provide Israel with any assistance likely to help in
maintaining the illegal situation or enter into agreements that would
directly or indirectly contribute to that situation, – including political,
financial, economic, military or other cooperation and/or assistance;
– The obligation not to conclude any treaty that does not clearly distinguish
between Israel and the OPT, or does not expressly exclude the OPT from
its scope;
364
– The obligation to ensure that all organs of the State, its citizens,
companies, and entities do not render aid or assistance in maintaining the
illegal situation;
– The obligation not to represent, expressly or impliedly, any part of the
OPT as being under Israeli “sovereignty”, including on any map or other
cartographic material;
– The obligation to abstain from sending diplomatic or special missions
upon the invitation of Israeli representatives or accompanied by Israeli
officials in any occupied and/or annexed area, including Jerusalem;
– The obligation not to accept any credentials of Israeli representatives
emanating from any occupied and/or annexed area, including Jerusalem.
(d) In addition to the above-mentioned obligations, third States and the United
Nations have a positive duty to cooperate in order to bring an end to Israel’s
serious breaches of its obligations arising under peremptory norms of general
international law. This general duty also has practical legal consequences,
including (by way of non-exhaustive examples):
– The obligation of every State and of the United Nations to do their utmost
to enable the Palestinian people to exercise their right to selfdetermination,
including their right to the independence of the State of
Palestine on the Palestinian territory occupied in 1967, including East
Jerusalem, and to compel Israel, through all possible legal, political,
diplomatic, and economic means, to put an end to its wrongful acts that
are breaching this right, including its policy of racial discrimination and
apartheid against the Palestinian people and its colonization and
annexation of Palestinian territory;
– The obligation of every State to investigate and prosecute before its
national courts and tribunals any individual, regardless of their
nationality, who may have committed serious crimes under international
law against the Palestinian people;
– The obligation for Parties to the Rome Statute to cooperate with the ICC
Prosecutor in the investigations of international crimes against the
Palestinian people in the OPT.1264
1264 The ICRC’s 2016 Commentary provides a detailed list of measures that have been taken
and can be taken by High Contracting Parties to ensure compliance with the Geneva Conventions in
365
7.163. The Security Council has indicated “its determination to examine
practical ways and means to secure the full implementation of its resolutions”,1265
over decades, including in resolutions 476 (1980), 478 (1980) and 2334 (2016), but
has yet to act upon this determination. In 75 years, the Security Council has not
adopted a single resolution under Chapter VII pertaining to the question of
Palestine. As noted by 47 United Nations Special Procedures mandates:
“The lessons from the past are clear: Criticism without consequences will
neither forestall annexation nor end the occupation. Accountability and an
end to impunity must become an immediate priority for the international
community. Available to it is a broad menu of accountability measures that
have been widely and successfully applied by the UN Security Council in
other international crises over the past 60 years.”1266
7.164. Given Israel’s record of refusal to comply with the Court’s 2004
Opinion in the Wall case, and its defiance of numerous Security Council and
General Assembly resolutions, States and United Nations bodies have a particular
obligation to consider all appropriate means to ensure compliance with the legal
consequences identified by the Court in its Advisory in these proceedings, including
by sanctioning non-compliance and through the deployment of an international
force to oversee Israel’s withdrawal from the OPT and the dismantlement of its
settlements and the Wall and their associated regime, and to provide protection to
the Palestinian people until such withdrawal is complete.
7.165. Given the historical role of the United Nations in the Question of
Palestine and its permanent responsibility therefore, and its continuous
reaffirmation of the inalienable rights of Palestinian people, including the right to
self-determination and independence, the United Nations must act to guarantee that
these rights are further protected including through granting the State of Palestine
admission to membership in the United Nations, and States which have not yet done
so should recognize the State of Palestine.
accordance with Article 1; these include arms embargoes, trade and financial restrictions, flight
bans, the reduction or suspension of aid and cooperation agreements; measures of retorsion (such as
the halting of ongoing negotiations or refusal to ratify agreements already signed, the non-renewal
of trade privileges, and the suspension voluntary public aid. See ICRC, Commentary of 2016 of the
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in
the Field of 12 August 1949, para. 181.
1265 Security Council, Resolution 478 (1980), 20 August 1980, preamble.
1266 “Israeli annexation of parts of the Palestinian West Bank would break international law –
UN experts call on the international community to ensure accountability”, 16 June 2020
(https://tinyurl.com/43s7xskw).
367
SUBMISSIONS
Over the last century, the Palestinian people have endured forcible
displacement and replacement, and the systematic denial of their fundamental
rights, including to life, liberty, dignity and security, in addition to their inalienable
right to self-determination. An entire nation has been either confined in enclaves in
its ancestral land, or forced to leave it, while the space it is allowed to live on
becomes ever smaller and the violence and denial of rights it endures becomes ever
harsher.
The Palestinian people have thus suffered the most protracted situation of
denial of the right to self- determination, the most protracted refugee crisis, the most
protracted protection crisis and the most protracted occupation in contemporary
history, as a result of a long and arduous arc of ethnic cleansing, dispossession and
displacement, denial of rights and discrimination, and acquisition of their territory
by force.
At the very same time the world was establishing the international law-based
order in response to the horrors of the Second World War and adopting the
foundational rules and principles to uphold that order, including the Charter of the
United Nations, the Universal Declaration of Human Rights and the 1949 Geneva
Conventions, the Palestinian people were deprived of the very rights these
instruments were designed to protect. And while colonialism was being removed
from the face of the earth and apartheid was being outlawed, in Palestine they were
allowed to become entrenched and to fester.
This manifest injustice and deprivation of fundamental rights would not have
been possible had these rules and principles been observed and upheld. The
question of Palestine remains unresolved because international duties towards the
Palestinian people, including those clearly outlined in the Court’s Advisory Opinion
on the Wall (2004), are yet to be fulfilled.
The question of Palestine has also had universal implications, given how
intricately linked it is to the international law-based order and the persistent failure
of existing international mechanisms to resolve it. This failure has loomed large
over the United Nations and the universal principles it embodies.
368
The tragic course of the Palestinian people’s history is in part reflected in the
four maps that chronicle it, displayed at the end of these Submissions. This Written
Statement has described, in addition to this territorial reality, the impact on the
Palestinian people of the internationally wrongful acts committed by Israel over the
course of 75 years, including especially the denial of their right to selfdetermination.
The result for the Palestinian people is an archipelago of ever shrinking, noncontiguous
Bantustans, fragmented and separated from one another, representing
only a fraction of Palestine under the Mandate system, which should have been the
territorial unit in which they exercised their right to self-determination, as well as a
situation of racial discrimination and apartheid on both sides of the Green Line,
which also affects those in forced exile among Palestinian refugees and the
diaspora.
Palestine has been a standing item on the United Nations’ agenda since the
establishment of the Organization. After failing to request from the International
Court of Justice its authoritative opinion on the legal dimensions of the question of
Palestine in 1947 to guide its actions, the General Assembly has finally brought
forward the legal dimensions of this question to the Court. The General Assembly’s
request is particularly timely. It comes at a critical juncture when the Palestinian
people face the most urgent existential threat they have confronted since the 1947-
1949 Nakba, with Israel openly and unreservedly vowing and acting to ensure an
exclusive right to self-determination to Jewish Israelis between the Mediterranean
Sea and the Jordan River and to suppress such a right for the Palestinian people as
a whole.
In this Written Statement, the State of Palestine has presented the Court with
insurmountable evidence of Israel’s illegal policies and practices. This legal
submission of the facts and applicable laws draws a picture of the wrongs and
indignities suffered by the Palestinian people over decades and underscores the
legal responsibilities arising from this situation, which Israel and the international
community, including the United Nations, must assume. In the State of Palestine’s
view, the facts before the Court lead to a straight-forward conclusion: Israel’s
colonial occupation and annexation of Palestinian territory, its racial discrimination
and apartheid against the Palestinian people, and its systematic denial of their
inalienable rights, including to self-determination and return, are flagrantly
unlawful, and must be brought to an immediate, unconditional, and complete end.
By determining the legal consequences of Israel’s internationally wrongful
acts, the Court will provide guidance to the United Nations and all States on their
369
obligations so as to ensure that the rules of international law are observed in regard
to the question of Palestine. International law must be upheld, and must be applied,
equally in all circumstances, with no exception, and no exceptionalism, allowed.
The State of Palestine hereby reaffirms its unwavering commitment to the
Court, and to the rule of international law, as the basis for justice and peace among
nations.
*
* *
For the reasons set out in this Written Statement, the State of Palestine
respectfully makes the following Submissions to the Court:
(1) The Court has jurisdiction to deliver the Advisory Opinion requested by the
General Assembly in its resolution 77/47 on 30 December 2022, and there are
no grounds for declining to exercise such jurisdiction.
(2) Israel is responsible for serious breaches of obligations arising under
peremptory norms of general international law, including but not limited to the
illegality/inadmissibility of the acquisition of territory through the threat or use
of force, which is a corollary of the prohibition on aggression; the prohibition
against racial discrimination and of apartheid; the right of the Palestinian
people to self-determination.
(3) Israel’s occupation, since its onset, has pursued colonization and annexation
of the Palestinian territory and has imposed a dual regime favoring its settlers
illegally present in the OPT to the detriment of the fundamental rights of the
Palestinian people. Israel’s occupation has thus, by design, and by its very
purpose, breached the three peremptory norms mentioned above. Israel has
also breached other peremptory norms, including the prohibition of crimes
against humanity, the basic rules of IHL and the prohibition of torture.
(4) As a consequence of these grave breaches, Israel is bound:
(a) To end immediately, unconditionally, and completely its occupation and
to withdraw from the OPT. This entails, inter alia, the annulment of all
370
legislation and measures aimed at the annexation of Jerusalem and the rest
of the West Bank, the end of the blockade of the Gaza Strip, the withdrawal
of all Israeli occupation forces and the dismantlement of its illegal
settlements and their associated regime;
(b) To rescind all of its discriminatory legislation and measures against the
Palestinian people on both sides of the Green Line and Palestinian refugees
and the diaspora;
(c) To respect the inalienable rights of the Palestinian people, first and
foremost their right to self-determination and of Palestinian refugees to
return to their homes;
(d) To provide assurances and guarantees of non-repetition of the abovementioned
violations;
(e) To make full reparation of the injury caused by, and to wipe out all the
consequences of, its policies and practices vis a vis the State of Palestine
and the Palestinian people as a whole, as a result of its internationally
wrongful acts.
(5) All States and international organizations, including the United Nations, are
bound:
(a) Not to recognize the illegal situation resulting from Israel’s internationally
wrongful acts, first and foremost its serious breaches of obligations arising
under peremptory norms of international law;
(b) Not to contribute to violations of the rights of the Palestinian people;
including by not rendering aid or assistance to any of Israel’s
internationally wrongful acts, and by ensuring that persons and entities
under their jurisdiction also do not render aid or assistance in maintaining
the illegal situation;
(c) To cooperate to protect the rights of the Palestinian people and to end
Israel’s violations of those rights including by unambiguous and explicit
recognition of the illegality of Israel’s occupation of the OPT, by enabling
the Palestinian people to exercise their right to self-determination and by
holding accountable, including by investigating and bringing to justice,
those responsible for crimes related to the colonization of the West Bank,
including East Jerusalem; the unlawful annexation of Jerusalem and the
rest of the West Bank; the blockade and successive assaults on the Gaza
371
Strip, and more generally, the violations of the fundamental rights of the
Palestinian people as a whole, including to self-determination, and to be
free of racial discrimination and apartheid, as well as the right of
Palestinians to life and liberty.
The Hague, 24 July 2023
H.E. Dr. Riad Malki
Minister of Foreign Affairs and Expatriates of
the State of Palestine
373
375
LIST OF ANNEXES
(Volume II)
Annex 1. Law and Administration Ordinance, 5708-1948 ................................. 1
Annex 2. Law of Return, 5710-1950 .................................................................. 9
Annex 3. Proclamation regarding Government and Justice arrangements
(West Bank Area) (No 2), 5727-1967 ............................................... 17
Annex 4. Law and Administrative Ordinance (Amendment No. 11) Law,
5727-1967; Municipalities Ordinance (Amendment No. 6) Law,
5727-1967 ......................................................................................... 23
Annex 5. Government and Law Procedures Ordinance (No. 11),
5727-1967 ......................................................................................... 27
Annex 6. Municipality Ordinance, Announcement of the Expansion of
the Jerusalem Municipality boundaries, 5727-1967 ......................... 35
Annex 7. Basic-Law: Jerusalem the Capital of Israel, 5740-1980 ................... 41
Annex 8. Citizenship and Entry into Israel Law, 5763-2003 ........................... 47
Annex 9. Basic-Law: Israel – The Nation State of the Jewish People,
5778-2018 ......................................................................................... 51
Annex 10. The Courts for Administrative Affairs Law (Amendment No. 117),
5778-2018 ......................................................................................... 57
Annex 11. The Council for Higher Education Law (Amendment No. 20),
5778-2018 ......................................................................................... 67
Annex 12. Coalition Agreement to establish a National Government,
28 December 2022 ............................................................................ 73
Annex 13. Bezalel Smotrich (@BEZALELSM), Tweet, 18 June 2023 ................ 111
377
CERTIFICATION
Pursuant to Articles 50, paragraph 1, and 51, paragraph 2, of the Rules of
Court, I hereby certify that the documents annexed to the present Statement are true
copies of the original documents and that the translations provided are accurate.
The Hague, 24 July 2023
H.E. Dr. Riad Malki
Minister of Foreign Affairs and Expatriates of
the State of Palestine
Written statement of the State of Palestine