Written statement of Djibouti

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
18900
INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES ARISING FROM THE POLICIES
AND PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY,
INCLUDING EAST JERUSALEM
REQUEST FOR AN ADVISORY OPINION
WRITTEN STATEMENT OF THE REPUBLIC OF DJIBOUTI
25 July 2023
[Translation by the Registry]
1. By its resolution 77/247 of 30 December 2022, the United Nations General Assembly
requested the Court to give an advisory opinion 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?
(b) How do the policies and practices of Israel referred to . . . 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
2. The legal framework applicable to the request for an advisory opinion is specified in the
resolution itself, which refers to
“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”2.
3. In its Order of 3 February 2023, the Court decided that “the United Nations and its Member
States, as well as the observer State of Palestine, are considered likely to be able to furnish
information on the questions submitted to the Court for an advisory opinion”3. The date of 25 July
was fixed as “the time-limit within which written statements on the questions may be presented to
the Court, in accordance with Article 66, paragraph 2, of the Statute”4.
4. The Republic of Djibouti, which expresses its solidarity with the Palestinian people and its
support for their inalienable rights, as well as its commitment to international law, wishes to avail
itself of the aforementioned possibility, and will focus its written statement on three specific aspects
of the request for an advisory opinion. In this regard, it will begin by establishing the illegality of
Israel’s occupation of Palestinian territory (I), before addressing the questions relating to Israel’s
compliance with its obligations under international humanitarian law and international human rights
law (II) and, finally, identifying the legal consequences arising from the violations of international
law committed by Israel, in particular for third States (III).
I. THE PROLONGED OCCUPATION OF PALESTINIAN TERRITORY IS, AS SUCH,
CONTRARY TO INTERNATIONAL LAW
5. Since 1967, Israel has imposed a military occupation on the territory and population of
Palestine. The settlement policy implemented by successive Israeli Governments, and the measures
that have accompanied it, have the purpose and effect of making it impossible for the Palestinian
people to exercise their right to self-determination (A). The adoption by the Israeli occupation
1 A/RES/77/247 of 30 Dec. 2022, para. 18.
2 Ibid.
3 Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory,
including East Jerusalem, Order of 3 February 2023, para. 1.
4 Ibid., para. 2.
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authorities of measures and policies that have as an effect the de jure or de facto annexation of
portions of Palestinian territory is a breach of their duty to respect the integrity of that territory and
violates the principle of non-acquisition of territory by force (B). Finally, the régime of occupation
put in place by Israel has the effect of systematically discriminating against the Palestinian
population, in favour of the Jewish population living in the settlements, in violation of the prohibition
on racial segregation and apartheid (C).
A. The prolonged occupation of Palestinian territory breaches
the Palestinian people’s right to self-determination
6. As the International Court of Justice (ICJ) recalled in its Advisory Opinion on the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter the
“Advisory Opinion on the Wall”)5, the right of peoples to self-determination is a peremptory norm
(jus cogens) whose application to the Palestinian people is “no longer in issue”. This right predated
the League of Nations Mandate for Palestine and was recognized under that same Mandate, Palestine
being considered to fall within category A, which included peoples ready for independence.
Article 22, paragraph 4, of the Covenant of the League of Nations states:
“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 wishes of these
communities must be a principal consideration in the selection of the Mandatory.”
7. However, the Mandate was diverted from its original purpose since the Palestinian people
were unable to exercise their right to self-determination, and, at the end of the Mandate, the
Palestinian people were effectively deprived of that ability as a result of being dispossessed and two
thirds of them having been forcibly displaced The denial of that fundamental right continues to this
day. The General Assembly reaffirms annually “the right of the Palestinian people to selfdetermination,
including the right to their independent State of Palestine” and “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”6.
8. It is established in numerous reports and resolutions that Israel’s settlement policy is aimed
at “altering the demographic composition, character and status of the Palestinian Territory occupied
since 1967, including East Jerusalem”, in particular through measures such as “the construction and
expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and
displacement of Palestinian civilians”, to quote the language of resolution 2334 adopted by the
Security Council in December 20167. In that same resolution, the Security Council states that “the
establishment by Israel of settlements in the [occupied] Palestinian territory . . . constitutes a flagrant
violation under international law”.
9. In its 2004 Advisory Opinion, the Court found that the construction of the wall, “along with
measures taken previously, thus severely impedes the exercise by the Palestinian people of its right
5 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 172, para. 88, and pp. 182-183, para. 118.
6 A/RES/77/208, The right of the Palestinian people to self-determination, 15 Dec. 2022.
7 S/RES/2334, 23 Dec. 2016.
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to self-determination, and is therefore a breach of Israel’s obligation to respect that right”8. The Court
referred in particular to the establishment of settlements, the annexation of East Jerusalem and
demographic changes. The policy pursued since 2004 by the Israeli occupation authorities has further
aggravated the scope and effects of the foregoing. Israel has continued work on the construction of
the wall and has already completed 65 per cent of it9; the number of Jewish settlers in the West Bank,
including East Jerusalem, has increased greatly; and measures violating the rights of the Palestinian
population — including wilful killings and indiscriminate attacks, arbitrary arrests and detentions,
the destruction of homes, and restrictions on freedom of movement — have continued10. The
settlement and annexation policy is unanimously acknowledged to be a major obstacle to the exercise
by the Palestinian people of their right to self-determination, which includes the right to their
independent State of Palestine and the effective exercise of its sovereignty11.
10. In view of the foregoing, it is clear that Israel’s occupation and settlement of Palestinian
territory, and the measures that accompany them, constitute a blatant violation of the right to
self-determination of the Palestinian people and of the United Nations Charter, in particular its
Article 1, paragraph 2.
B. The prolonged occupation of Palestinian territory violates the right to territorial integrity
and the principle of non-acquisition of territory by force
11. The principle of non-acquisition of territory by force is a peremptory norm of general
international law12. Nevertheless, the prolonged occupation of Palestinian territory has been
accompanied by measures of de jure and de facto annexation of large portions of that territory. Israel
has annexed Jerusalem in violation of its international status and the relevant resolutions of the
Security Council and the General Assembly; this annexation was reaffirmed in Israel’s basic law of
30 July 1980, which makes Jerusalem its “undivided and reunited” capital. The annexation has been
roundly condemned by the United Nations. The Security Council has thus disapproved “in the
strongest terms the enactment by Israel of the ‘basic law’ on Jerusalem”, which “constitutes a
violation of international law”, is “null and void” and must be “rescinded forthwith”13. Similarly, the
General Assembly regularly recalls 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’, [are] null and void”14.
12. The rest of the West Bank has also undergone de facto annexation. This includes, in
particular, the territories designated for settlements and their accompanying infrastructures, as well
8 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 184, para. 122.
9 Office for the Co-ordination of Humanitarian Affairs (OCHA), Fact sheet: the Humanitarian Impact of 20 Years
of the Barrier, Dec. 2022, www.ochaopt.org/sites/default/files/Barrier_Factsheet_Dec2022.pdf.
10 See, in particular, 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”, A/HRC/52/76, 15 Mar.
2023.
11 See, in particular, S/RES/2334, 23 Dec. 2016, para. 1; Report of the Independent International Commission of
Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, UN doc. A/77/328, 14 Sept. 2022;
Human Rights Council, resolution 52/35, “Israeli Settlements in the Occupied Palestinian Territory, including East
Jerusalem, and the Occupied Syrian Golan”, A/HRC/RES/52/35, 20 Apr. 2023.
12 Report of the International Law Commission (ILC), 73rd Session (18 Apr.-3 June and 4 July-5 Aug. 2022),
A/77/10, pp. 86-87.
13 Security Council, resolution 478 (1980) of 20 Aug. 1980.
14 See, in particular, resolution 76/12 adopted by the General Assembly on 1 Dec. 2021.
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as military and security zones, to which all Palestinian populations are denied access. In its
September 2022 report, the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel noted that,
“[s]ince 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.”15
13. In its resolution 2334 (2016), the Security Council noted the fact that “negative trends on
the ground . . . are steadily . . . entrenching a one-State reality”, thereby acknowledging the
annexationist dimension of Israel’s settlement policy.
14. In its 2013 report, 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,
found:
“The establishment of the settlements in the West Bank, including East
Jerusalem . . . , is a mesh of construction and infrastructure leading to a creeping
annexation . . . and undermines the right of the Palestinian people to selfdetermination.”
16
15. In its 2004 Advisory Opinion on the Wall, the Court recalled 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’”, mentioning in particular
resolution 242 (1967) of 22 November 1967. It considered 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”. Since 2004, no steps have been taken to dismantle the wall; quite the
contrary, its construction has continued, the settlement policy has gained momentum, and measures
imposing Israeli law on large swaths of Palestinian territory that have been taken over by settlements
and military zones have expanded. From this point of view, the Israeli occupation unquestionably
presents a “permanent” effect aimed at the appropriation of as much Palestinian territory as possible
for the benefit of Israel’s Jewish population, resulting in de facto annexation. Such was the
conclusion reached by the Independent International Commission of Inquiry on the Occupied
Palestinian Territory, including East Jerusalem, and Israel in its report of September 2022:
“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. Actions by Israel constituting de facto annexation include expropriating
land and natural resources, establishing settlements and outposts, maintaining a
15 Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, 2022, paras. 46-47.
16 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 Feb. 2013, A/HRC/22/63, para. 101.
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restrictive and discriminatory planning and building regime for Palestinians and
extending Israeli law extraterritorially to Israeli settlers in the West Bank.”17
16. The General Assembly itself has underlined the difference between occupation, which is
supposed to be temporary, and annexation, which is intended to be permanent, and has effectively
criticized Israel for using the former as a means of obtaining the latter. The General Assembly has
explicitly stressed the fact 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 has] recall[ed] 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, and [has] expresse[d] its grave concern at recent statements calling for the
annexation by Israel of areas in the Occupied Palestinian Territory”18.
17. Owing to the effect of annexation that it produces, Israel’s occupation and settlement
policy violates the principle of non-acquisition of territory by force which derives from Article 2,
paragraph 4, of the United Nations Charter and which is a cardinal principle of international relations
in the post-Second World War era.
18. This policy also contravenes the principle of respect for territorial integrity, an essential
corollary of the right to self-determination19. In its Advisory Opinion on the Chagos Archipelago,
the Court established that respect for territorial integrity is “a key element of the exercise of the right
to self-determination under international law”20. This principle can, mutatis mutandis, be extended
to other instances involving the application of the right of peoples to self-determination, including,
in the present case, the right of the Palestinian people. As already recalled, the Palestinian people
have a recognized right to self-determination. In its resolution 67/19, which grants Palestine nonmember
observer State status in the United Nations, the General Assembly 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”21.
17 Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, A/77/328, 14 Sept. 2022, para. 76.
18 A/RES/77/126, Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and the
occupied Syrian Golan, 12 Dec. 2022.
19 See, in particular, General Assembly resolutions 1514 (XV) and 2625 (XXV).
20 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019 (I), p. 134, para. 160.
21 Resolution adopted by the General Assembly on 29 Nov. 2012, A/RES/67/19.
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19. Palestinian territory is thus protected by the principle of respect for territorial integrity,
which fully applies to Israel in so far as it is conducting a foreign occupation of this territory.
Therefore, by engaging in a “prolonged occupation”, which is intended to be permanent, by actively
pursuing a policy of settlement, appropriation and fragmentation of the territory, and by adopting
laws and measures that have the effect of de jure or de facto annexation, Israel is violating the
principle of respect for the integrity of Palestinian territory and severely impeding the exercise by
the Palestinian people of their right to self-determination.
C. Israel’s régime of occupation systematically discriminates against
the Palestinian population in a manner akin to apartheid
20. The occupation and settlement policy pursued by Israel is accompanied by a régime of
systematic discrimination against the Palestinian population which is intended to give preference to
Israeli Jewish settlers living in the West Bank, including East Jerusalem. This situation is described
in numerous international reports.
21. In its “Concluding observations on the combined seventeenth to nineteenth reports of
Israel”, the Committee on the Elimination of Racial Discrimination states the following:
“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.”22
22. The Committee also notes “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”, and states 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 settlements, including through the use of ‘State land’ allocated for
settlements”23.
23. The same types of observations have been made by other United Nations bodies. For
instance, the United Nations High Commissioner for Human Rights, for instance, states that his 2023
report:
“documents patterns of systematic discrimination in law, policy and practice,
encompassing almost every sphere of life, and examines, in particular, housing, land
and property rights and the right to life, security of person and access to justice. These
violations have created a coercive environment which is forcing Palestinians to leave
22 Committee on the Elimination of Racial Discrimination, Concluding observations on the combined seventeenth
to nineteenth reports of Israel, CERD/C/ISR/CO/17-19, 12 Dec. 2019, para. 22.
23 Ibid., para. 42. See also Human Rights Committee, Concluding observations on the fifth periodic report of Israel,
CCPR/C/ISR/CO/5, 22 Mar. 2022, paras. 36, 42-43.
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their homes and their lands in possible forcible transfer . . . and [are] the ultimate result
of the cumulative effect of the settlement enterprise”24.
24. This assessment has also been made in various reports of the special rapporteurs on the
situation of human rights in the Palestinian territories occupied since 196725, as illustrated by the
description provided in a report published in 2021:
“Human rights violations against Palestinians arising from the Israeli settlements
are widespread and acute, and settler violence has created a coercive environment. There
is an apartheid-like two-tier legal system granting full citizenship rights for the Israeli
settlers while subjecting the Palestinians to military rule. Access to the natural resources
of the occupied territory, especially to water, is disproportionately allocated to the
settlements and the fragmented territory left to the Palestinians has resulted in a highly
dependent and strangled economy, mounting impoverishment, daily impositions and
indignities, and receding hope for a reversal of fortune in the foreseeable future.”26
25. Taken as a whole, these elements led the Human Rights Council to consider that “numerous
Israeli policies and practices relating to settlement activity in the Occupied Palestinian Territory,
including East Jerusalem, amount to blatant discrimination, including through the creation of a
system privileging Israeli settlements and settlers against the Palestinian people, and in violation of
their human rights”27.
26. It can thus be concluded that Israel’s policy towards the Palestinian population constitutes
a clear violation of peremptory norms28, namely the prohibition of racial discrimination and of racial
segregation and apartheid. Article 3 of the 1965 International Convention on the Elimination of All
Forms of Racial Discrimination, to which Israel is a party, provides:
“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.”
24 Report of United Nations High Commissioner for Human Rights, “Israeli settlements in the Occupied Palestinian
Territory, including East Jerusalem, and in the occupied Syrian Golan”, A/HRC/52/76, 15 Mar. 2023, para. 2.
25 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, Francesca Albanese, A/77/356, 21 Sept. 2022; Report of the Special Rapporteur on the situation of human rights in
the Palestinian territories occupied since 1967, Michael Lynk, A/HRC/49/87, 12 Aug. 2022; Report of the Special
Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, A/HRC/16/72,
10 Jan. 2011; Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, John Dugard, A/HRC/4/17, 29 Jan. 2007.
26 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, “Situation of human rights in the Occupied Palestinian Territory, including East Jerusalem, with a focus on the legal
status of the settlements”, A/HRC/47/57, 29 July 2021, para. 58. See also Report of the Independent International
Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, A/HRC/50/21, 9 May
2022, paras. 49-50.
27 Human Rights Council, resolution 52/35, “Israeli settlements in the Occupied Palestinian Territory, including
East Jerusalem, and in the occupied Syrian Golan”, A/HRC/RES/52/35, 20 Apr. 2023.
28 Report of the ILC, 73rd Session (18 Apr.-3 June and 4 July-5 Aug. 2022), A/77/10, pp. 86-87.
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27. In this regard, in its aforementioned concluding observations, the Committee on the
Elimination of Racial Discrimination 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 which severely and disproportionately affect the Palestinian population in Israel
proper and in the Occupied Palestinian Territory”29.
28. In light of the aggravation observed in recent years, it would appear that in so far as the
Israeli policy of occupation and settlement establishes a system of domination of the population of
Israeli Jewish settlers, who are living in Palestinian territory illegally, over the Palestinian population
in that territory, it may be characterized as a régime of apartheid, which practices are prohibited by
customary law, as reflected in the 1965 International Convention on the Elimination of All Forms of
Racial Discrimination (Article 3), the 1973 International Convention on the Suppression and
Punishment of the Crime of Apartheid, the 1977 Protocol Additional to the Geneva Conventions of
12 August 1949, and relating to the Protection of Victims of International Armed Conflicts
(Protocol 1) (Article 85, para. 4 (c)), and the 1988 Statute of the International Criminal Court
(Article 7, para. 1 (j), and para. 2 (h)).
29. Three special rapporteurs on the human rights situation in the Palestinian territories
occupied since 1967 have found that Israel has engaged in practices of apartheid in occupied
Palestinian territory30. In a report submitted in August 2022, for instance, the special rapporteur stated
in his conclusions:
“Applying each of the three steps of the amalgamated test from the International
Convention on the Suppression and 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-nationalethnic
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.”31
Finally, it should be noted that several international reports show a situation of apartheid on both
sides of the Green Line, the Armistice Line of 1949.
29 Committee on the Elimination of Racial Discrimination, Concluding observations on the combined seventeenth
to nineteenth reports of Israel, CERD/C/ISR/CO/17-19, 12 Dec. 2019, para. 23.
30 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, John Dugard, A/HRC/4/17, 29 Jan. 2007; Report of the Special Rapporteur on the situation of human rights in the
Palestinian territories occupied since 1967, Richard Falk, A/HRC/16/72, 10 Jan. 2011; Report of the Special Rapporteur
on the situation of human rights in the Palestinian territories occupied since 1967, Michael Lynk, A/HRC/49/87, 12 Aug.
2022.
31 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, Michael Lynk, A/HRC/49/87, 12 Aug. 2022, para. 52.
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30. This characterization, which is in keeping with the analyses of various human rights NGOs32,
warrants special legal examination by the ICJ in the context of these advisory proceedings.
*
* *
31. In light of the foregoing, it can be concluded that the occupation of Palestinian territory is,
as such, illegal under international law, and has been from the outset, because it gives rise to
violations of peremptory norms of international law, namely by posing a fundamental obstacle to the
exercise by the Palestinian people of their right to self-determination, because it is aimed at and
results in annexation contrary to the principles of territorial integrity and non-acquisition of territory
by force, and because it leads to the establishment of a régime of segregation, if not apartheid. It
follows that Israel is under an obligation to put an immediate end to its occupation and to the
settlement and annexation policies that accompany it. This obligation previously emerged from
resolution 242 adopted by the Security Council in 1967, which called for the “[w]ithdrawal of Israel
armed forces from territories occupied in the recent conflict” and the “[t]ermination of all claims or
states of belligerency”33. It was recalled by the Security Council in its resolution 476 (1980), in which
the Council reaffirmed “the overriding necessity for ending the prolonged occupation of Arab
territories occupied by Israel since 1967, including Jerusalem”34. More recently, the Security Council
reiterated its call for the Israeli occupation to be brought to an end “without delay”35. The General
Assembly, for its part, has regularly stressed “the urgency of achieving without delay an end to the
Israeli occupation that began in 1967”36.
II. ISRAEL’S POLICIES AND PRACTICES IN PALESTINIAN TERRITORY
VIOLATE INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW
32. In this second chapter of its written statement, the Republic of Djibouti will begin by
recalling the existence of military occupation of the entire Occupied Palestinian Territory as well as
the law applicable to this occupation, which includes not only the rules of international humanitarian
law (IHL) but also the rules of international human rights law (IHRL) (A). In view of the prolonged
nature of this occupation, the latter rules are of fundamental importance for the protection of the
occupied civilian population (B). On this basis, we will discuss more specifically the fact that the
settlement of the Occupied Palestinian Territory and the measures aimed at altering its demographic
32 Amnesty international, “Israel’s apartheid against Palestinians. Cruel System of Domination and Crime against
Humanity”, Feb. 2022; Human Rights Watch, “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and
Persecution”, Apr. 2021; B’Tselem, “A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This
is apartheid”, 12 Jan. 2021; Yesh Din, “The Occupation of the West Bank and the Crime of Apartheid: Legal Opinion”,
Sept. 2020; Al-Haq and others, report on Israeli apartheid entitled “Joint Parallel Report to the United Nations Committee
on the Elimination of Racial Discrimination on Israel’s Seventeenth to Nineteenth Periodic Reports”, Nov. 2019.
33 Security Council resolution 242 (1967) of 22 Nov. 1967.
34 Security Council resolution 476 (1980) of 30 June 1980.
35 Security Council resolution 2334 (2016) of 23 Dec. 2016.
36 See, in particular, General Assembly resolution 77/208, “The right of the Palestinian people to selfdetermination”,
adopted 15 Dec. 2022.
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composition (C), as well as Israel’s adoption of discriminatory legislation and measures (D),
constitute violations of the rules of both IHL and IHRL.
A. The military occupation of all the occupied Palestinian territories
and the law applicable to this occupation
33. Under Article 42 of the 1907 Regulations Respecting the Laws and Customs of War on
Land (hereinafter “the Hague Regulations of 1907”), the concept of occupation is defined as follows:
“Territory is considered occupied when it is actually placed under the authority
of the hostile army.
The occupation extends only to the territory where such authority has been established
and can be exercised.”37
The adoption of the 1949 Geneva Conventions did not alter this definition.
34. There is no question that the occupied Palestinian territories are under military occupation
by Israel. This occupation covers all the occupied Palestinian territories.
35. The legal régime applicable to this military occupation includes, inter alia, the
conventional and customary rules of IHL by which Israel is bound, in particular the relevant
provisions of the Hague Regulations of 1907, all provisions of the Fourth Geneva Convention of
194938, the applicable rules of Additional Protocol (I) and the rules of IHRL. Indeed, the
extraterritorial application of IHRL in situations of armed conflict and occupation is no longer in any
doubt. The ICJ has thus confirmed on several occasions the extraterritorial application of the rules of
IHRL in situations of armed conflict, including in particular the situation in the Occupied Palestinian
Territory39. As is clear from the jurisprudence of the Court in both the Judgment in the case
concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda) and the Advisory Opinion on the Wall, in the situation of military occupation of Palestinian
territories by Israel, the rules of IHL and IHRL apply concomitantly and in a complementary
manner40. Their interpretation and application must be guided in particular by the rule set out in
Article 31, paragraph 3 (c), of the 1969 Vienna Convention on the Law of Treaties, which provides
for the interpretation of a treaty to take into account “[a]ny relevant rules of international law
applicable in the relations between the parties”.
37 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land, The Hague, 18 Oct. 1907, Art. 42, available at: ihl-databases.icrc.org/en/ihltreaties/
hague-conv-iv-1907 (consulted 18 July 2023).
38 A/RES/60/107 of 8 Dec. 2005, para. 2: the General Assembly demands that Israel “comply fully with the
provisions of the Fourth Geneva Convention of 1949” (emphasis added).
39 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 240, para. 25;
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004 (I), p. 178, para. 106; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment, I.C.J. Reports 2005, pp. 242-243, para. 216.
40 See references in previous fn; see also Human Rights Committee, General Comment No. 31: The Nature of the
General Legal Obligation Imposed on States Parties to the Covenant, UN doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004,
para. 11: “both spheres of law are complementary, not mutually exclusive”; Human Rights Committee, General Comment
No. 36: Art. 6: right to life, UN doc. CCPR/C/GC/36, 3 Sept. 2019, para. 64: “both spheres of law are complementary, not
mutually exclusive”.
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36. The application of the rules of IHL and IHRL in situations of military occupation also does
not preclude the application of other rules of international law, such as those relating to the
prohibition of the use of force or to environmental protection. Resolution 77/247, which is the source
of the request for an advisory opinion of the Court, moreover explicitly acknowledges this by
referring to “the rules and principles of international law, including the Charter of the United Nations,
international humanitarian law[ and] international human rights law”41 as the relevant legal
framework for assessing the lawfulness of Israel’s conduct in the occupied Palestinian territories. In
this instance, violations of international humanitarian law and international human rights law are
indissociable from violations of the Charter and of peremptory norms of international law, in the
sense that the former in fact beget the latter.
37. Finally, it is important to note that the occupied territory also includes the Gaza Strip,
despite the disengagement of the Israeli military forces. Indeed, as noted in the updated commentary
of the International Committee of the Red Cross (ICRC) on common Article 2 of the four Geneva
Conventions of 1949:
“in some specific and exceptional cases — in particular when foreign forces withdraw
from occupied territory (or parts thereof) while retaining key elements of authority or
other important governmental functions that are typical of those usually taken on by an
Occupying Power — the law of occupation might continue to apply within the territorial
and functional limits of those competences.
Indeed, although the foreign forces are not physically present in the territory concerned,
the authority they retain may still amount to effective control for the purposes of the law
of occupation and entail the continued application of the relevant provisions.
. . . [T]echnological and military developments have made it possible to assert effective
control over all or parts of a foreign territory without a continuous military presence in
the area concerned. In such situations, it is important to take into account the extent of
authority retained by the foreign forces rather than focusing exclusively on the means
by which it is actually exercised.” 42
38. In the same vein, the Office of the Prosecutor of the International Criminal Court has
affirmed that:
“While Israel maintains that it is no longer occupying Gaza, the prevalent view
within the international community is that Israel remains an occupying power under
international law, based on the scope and degree of control that it has retained over the
territory of Gaza following the 2005 disengagement.”43
39. In view of these considerations, it is important to keep in mind that the actions of the Israeli
occupation authorities in the Gaza Strip, in particular the blockade imposed on more than two million
Palestinians in this battered territory, which has continued for 16 years, also constitute violations of
the rules of IHL and IHRL.
41 See above, fn 2.
42 ICRC, Commentary on the First Geneva Convention, 2016, T. Ferraro and L. Cameron, “Article 2: Application
of the Convention”, paras. 307-309 (fn references omitted).
43 International Criminal Court, Office of the Prosecutor, Situation on Registered Vessels of Comoros, Greece and
Cambodia, Article 53(1) Report, 6 Nov. 2014, p. 5, para. 16, available at: www.icc-cpi.int/sites/default/files/iccdocs/otp/
OTP-COM-Article_53(1)-Report-06Nov2014Eng.pdf.
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B. The prolonged nature of the occupation and the heightened importance
of the rules of IHRL
40. Israel’s occupation of Palestinian territories was characterized by the Security Council as
“prolonged” as far back as 1980, in its resolution 47644.
41. The prolonged character of an occupation must be taken into account in the interpretation
of the applicable rules of IHL and IHRL. As a general matter, the rules of IHRL gain importance in
such situations of occupation, as the International Law Commission notes in its Draft principles on
protection of the environment in relation to armed conflicts, with commentaries:
“While the nature and duration of occupation do not affect the applicability of the
law of occupation, the obligations of the Occupying Power under the law of occupation
are, to a certain extent, context specific . . . [T]he responsibilities falling on the
Occupying Power are ‘commensurate with the duration of the occupation’.
Furthermore, while protracted occupations remain governed by the law of occupation,
other bodies of law, such as human rights law and international environmental law, gain
more importance as time goes by and may complement or inform the applicable rules
of the law of occupation. In protracted occupations, changes necessitated by economic
and social development require the participation of the protected population.”45
42. In this particular case, the prolonged nature of the occupation is tied to statements by Israeli
officials and policies which demonstrate an intention of permanence that is inconsistent with the
letter and spirit of the law of occupation and the rules of IHRL. Settlement is the ultimate expression
of this aim.
C. Settlement and the measures aimed at altering the demographic composition
of the Occupied Palestinian Territory as violations of IHL and IHRL
43. The establishment of settlements in the Occupied Palestinian Territory violates
Article 49 (6) of the Fourth Geneva Convention of 1949, which forms part of customary law46, and
constitutes a war crime under Article 8, paragraph 2 (b) (viii) of the Statute of the International
Criminal Court.
44. Similarly, alterations of the demographic composition of the occupied territory, in so far
as they take the form of forced displacements, are prohibited by Article 49 (1) of the Fourth Geneva
Convention of 1949. This prohibition is customary in nature47 and its violation constitutes a war
crime under Article 8, paragraph 2 (b) (viii), of the Statute of the International Criminal Court.
44 S/RES/476 (1980), adopted on 30 June 1980, para. 1. See also Human Rights Council, Report of the Special
Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, UN doc.
A/HRC/25/67, 13 Jan. 2014, p. 4, para. 6, and p. 22, para. 78; United Nations General Assembly, Situation of human rights
in the Palestinian territories occupied since 1967, Note by the Secretary General, Annex: Report of the Special Rapporteur
on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese, UN doc. A/77/356,
21 Sept. 2022, p. 7, para. 22, and p. 21, para. 63.
45 ILC, Draft principles on protection of the environment in relation to armed conflicts, with commentaries, adopted
on second reading in 2022, Part Four, commentary, para. 6.
46 J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules,
ICRC/Cambridge University Press, Cambridge, 2005, p. 462 (rule 130).
47 Ibid., p. 457 (rule 129 A).
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45. As recently as 19 June 2023, the United Nations Secretary-General stated in a press release
that he was
“deeply troubled by [the] 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 [was]
also deeply alarmed by the anticipated advancement next week of over 4,000 settlement
housing units by Israeli planning authorities.” 48
And he continued as follows:
“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.”49
46. This statement by the Secretary-General concerns what is but the latest in a long series of
similar incidents. The systematic and ongoing practice of establishing and expanding settlements, as
well as, more generally, of measures aimed at altering the demographic composition of the occupied
Palestinian territories is not only a serious violation of the rules of IHL, it also violates, inter alia,
the right to self-determination and other fundamental rights of the Palestinian people.
47. In addition, in its report of 14 September 2022, the Independent International Commission
of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel stated that
“the policies identified in the present report that have contributed to the forced
displacement of the Palestinian population from certain areas, altered the demographic
composition of the Occupied Palestinian Territory and resulted in Palestinian
communities being almost completely encircled by Israeli settlements, may constitute
the crime against humanity of deportation or forcible transfer of population under
article 7 (1) (d) of the Rome Statute. Such policies, appear to form part of an intentional,
widespread and systematic attack directed at the Palestinian population with the aim of
forcibly transferring them from parts of the West Bank to alter the demographic makeup.
These acts may also amount to the crime against humanity of persecution under
article 7 (1) (h) of the Rome Statute.”50
48. In the same report, the Commission noted that “[t]he settlement enterprise is the principal
means” by which the Israeli occupation authorities create irreversible facts on the ground that enable
them to expand their control over the territory and annex certain parts of it de facto and de jure51. On
the basis of this assertion, and in light of the foregoing discussion of the illegality of the occupation
and annexation as such, it can be concluded that the measures relating to the establishment and
48 “Alarmed by New Decision on Settlements, Secretary-General Urges Israeli Government to Cease Such Activities in
OPT”, press release, Secretary-General, SG/SM/21847, 19 June 2023, available at press.un.org/en/2023/sgsm21847.doc.htm.
49 Ibid.
50 Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, Note by the Secretary-General, UN doc. A/77/328, 14 Sept. 2022, p. 29, para. 86.
51 Ibid., p. 26, para. 75.
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expansion of settlements, as a means of implementing an illegal occupation and annexation, are also
illegal.
49. Settlement is a prime example of violations of jus in bello contributing to the violation of
the United Nations Charter and general international law, in particular the principle of
non-acquisition of territory by force.
D. Israel’s adoption of discriminatory legislation and measures
50. The report of 14 September 2022 is one of several providing an overview of the
discriminatory measures adopted by Israel52.
51. The legislative authority of occupying Powers is governed by Article 43 of the Hague
Regulations of 1907 and Article 64 of the Fourth Geneva Convention of 1949. In exercising their
authority, occupying Powers are bound by the rules of IHL and IHRL, including in particular the
principle of non-discrimination. This principle is set out in Article 13 of the Fourth Geneva
Convention of 194953 and has acquired the status of customary law:
“Adverse distinction in the application of international humanitarian law based
on race, colour, sex, language, religion or belief, political or other opinion, national or
social origin, wealth, birth or other status, or on any other similar criteria is
prohibited.”54
52. Similarly, discriminatory measures are contrary to the rules of IHRL, inter alia, Article 2,
paragraph 1, of the International Covenant on Civil and Political Rights55, Article 2, paragraph 2, of
the International Covenant on Economic, Social and Cultural Rights56, and the International
Convention on the Elimination of All Forms of Racial Discrimination.
III. THE LEGAL CONSEQUENCES ARISING FROM ISRAEL’S ONGOING VIOLATION
OF THE RIGHTS OF THE PALESTINIAN PEOPLE
53. As noted above, it is established that Israel is violating a number of rules of general
international law, international humanitarian law and international human rights law that are
considered to be peremptory and erga omnes norms. The primary consequence of these violations is
that Israel must put an end to them forthwith, by ceasing, in particular, the occupation and settlement
immediately and unconditionally, and by eliminating all measures that infringe the rights of the
Palestinian population, including their right to self-determination and all discriminatory measures,
52 Ibid.
53 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 Aug. 1949, Art. 13:
“The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction
based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by
war.”
54 J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules,
ICRC/Cambridge University Press, Cambridge, 2005, p. 308 (rule 88).
55 “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
56 “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present
Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.”
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and it must provide reparation for the injury suffered by the Palestinian people as a result of these
violations.
54. However, Israel’s persistent disregard for all the injunctions to respect its international
obligations — from the Court, the Security Council, the General Assembly, the Human Rights
Council, the Secretary-General, fact-finding missions and numerous United Nations reports —
makes the posture adopted by the international community, and by States and the United Nations in
particular, especially crucial in inducing Israel to comply with international law. It is thus essential
that third States fully perform the obligations that are incumbent on them under international law in
the event of the serious and systematic violation of a peremptory norm by another State. In order to
determine which obligations are binding on States in this regard, we will discuss in turn the obligation
to “ensure respect” for international humanitarian law (A), the obligation to ensure respect for the
human rights of the Palestinian population (B), the obligation to remove impediments to the
Palestinian people’s right to self-determination (C), and the obligation not to recognize as lawful the
illegal situation created as a result of the occupation and settlement of Palestinian territory, or to
render aid or assistance in maintaining that situation (D).
A. The obligation to “ensure respect” for international humanitarian law
55. In its Advisory Opinion on the Wall, the ICJ referred to the obligation to “ensure respect”
for international humanitarian law provided for in common Article 1 of the four Geneva Conventions
of 1949, stating that
“[i]t follows from that provision that every State party to that Convention, whether or
not it is a party to a specific conflict, is under an obligation to ensure that the
requirements of the instruments in question are complied with”,
and that
“all the States parties to the Geneva Convention relative to the Protection of Civilian
Persons in Time of War of 12 August 1949 are under an obligation, while respecting
the United Nations Charter and international law, to ensure compliance by Israel with
international humanitarian law as embodied in that Convention”57.
56. With regard to the obligation to ensure respect for international humanitarian law, the
ICRC’s updated commentary on common Article 1 of the four Geneva Conventions explains that
“The obligation to ensure respect . . . [is] related to ensuring respect for the
Conventions by others that are Party to a conflict. Accordingly, States, whether neutral,
allied or enemy, must do everything reasonably in their power to ensure respect for the
Conventions by others that are Party to a conflict.
This duty to ensure respect by others comprises both a negative and a positive
obligation. Under the negative obligation, High Contracting Parties may neither
encourage, nor aid or assist in violations of the Conventions by Parties to a conflict.
57 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, pp. 199-200, paras. 158, 159.
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Under the positive obligation, they must do everything reasonably in their power to
prevent and bring such violations to an end.”58
57. Regarding the negative obligations, the ICRC states:
“Pursuant to common Article 1, the High Contracting Parties have certain
negative obligations, which means they must abstain from certain conduct. In particular,
they may neither encourage, nor aid or assist in violations of the Conventions.”59
58. As regards the positive obligations, third States:
“must take proactive steps to bring violations of the Conventions to an end and to bring
an erring Party to a conflict back to an attitude of respect for the Conventions, in
particular by using their influence on that Party.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
States remain in principle free to choose between different possible measures, as long
as those adopted are considered adequate to ensure respect. The duty to ensure respect
is to be carried out with due diligence. As noted above, its content depends on the
specific circumstances, including the gravity of the breach, the means reasonably
available to the State, and the degree of influence it exercises over those responsible for
the breach.”60
59. States are therefore required to take reasonable steps, while respecting international law,
to encourage in effect the State concerned to respect international humanitarian law. A fortiori, States
are required to abstain from acts that would be incompatible with the aim of encouraging respect for
international humanitarian law, such as financing, promoting or facilitating the settlement policy or
economic activities linked to serious violations of humanitarian law.
B. The obligation to remove impediments to the exercise by the Palestinian people
of their right to self-determination
60. The obligation to ensure the implementation of the Palestinian people’s right to
self-determination derives from the principle enshrined in the United Nations Charter, namely
Article 1, paragraph 3, from resolution 2625 (XXV) of the United Nations General Assembly, which
provides that “[e]very State has the duty to promote, through joint and separate action, realization of
the principle of equal rights and self-determination of peoples, in accordance with the provisions of
the Charter”, and from common Article 1, paragraph 3, of the covenants adopted in New York in
1966: “The States Parties to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right
of self-determination, and shall respect that right, in conformity with the provisions of the Charter of
58 ICRC, Commentary on the First Geneva Convention, 2016, J.-M. Henckaerts, “Article 1: Respect for the
Convention”, paras. 153-154.
59 Ibid., para. 158.
60 Ibid., paras. 164-165.
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the United Nations”61. The right of peoples to self-determination also comprises the right to “freely
dispose of their natural wealth and resources” 62.
61. In its Advisory Opinion on the Wall, the ICJ characterized the right of the Palestinian
people to self-determination as an erga omnes norm and considered that “[i]t is . . . for all States,
while respecting the United Nations Charter and international law, to see to it that any
impediment . . . to the exercise by the Palestinian people of its right to self-determination is brought
to an end”63.
62. This obligation to “see to it” that the violation of the Palestinian people’s right to selfdetermination
and to dispose of their natural resources “is brought to an end” requires States to take
reasonable steps to induce Israel to comply with international law. It also requires States to cease any
conduct that might finance or facilitate political, military, economic or other activities that serve to
impede the exercise of the Palestinian people’s right to self-determination and to permanent
sovereignty over their natural resources.
C. The obligations arising from the United Nations’ guiding principles on human rights
63. The economic development of Israeli settlements in occupied Palestinian territory is a core
component of the settlement policy pursued by the State of Israel64. The economic activity of the
settlements plays a central role in their maintenance and expansion. In the resolution adopted in April
2023, the Human Rights Council noted that “economic activities facilitate the expansion and
entrenchment of settlements” and called upon all States
“[t]o implement the Guiding Principles on Business and Human Rights in relation to the
Occupied Palestinian Territory, including East Jerusalem, and to take appropriate
measures to help to ensure that businesses domiciled in their territory and/or under their
jurisdiction, including those owned or controlled by them, refrain from committing,
contributing to, enabling or benefiting from the human rights abuses of Palestinians, in
accordance with the expected standard of conduct in the Guiding Principles and relevant
international laws and standards, by taking appropriate steps in view of the immitigable
nature of the adverse impact of their activities on human rights”65.
64. The “Guiding Principles on Business and Human Rights”, adopted by the United Nations
in 201166, provides that States “must protect against human rights abuse within their territory and/or
jurisdiction by third parties, including business enterprises”67. This duty to protect “requires taking
61 The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights.
62 See the resolution adopted by the General Assembly on 17 Dec. 2021, “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”, A/RES/76/225.
63 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 200, para. 159.
64 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, A/HRC/47/57, 29 July 2019, para. 54.
65 Human Rights Council resolution 52/35, “Israeli settlements in the Occupied Palestinian Territory, including
East Jerusalem, and in the occupied Syrian Golan”, A/HRC/RES/52/35, 4 Apr. 2023.
66 Guiding Principles on Business and Human Rights, United Nations, 2011, www.businesshumanrights.
org/en/big-issues/un-guiding-principles-on-business-human-rights/
67 Ibid., Principle 1.
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appropriate steps to prevent, investigate, punish and redress such abuse through effective policies,
legislation, regulations and adjudication”68. The Guiding Principles are considered to establish an
appropriate legal framework for determining the obligations of both States and businesses with
regard to economic activities undertaken in the Israeli settlements69. The United Nations General
Assembly thus described the Guiding Principles as “a global standard for upholding human rights in
relation to business activities that are connected with Israeli settlements in the Occupied Palestinian
Territory, including East Jerusalem”, putting them on the same footing as “other relevant
international laws and standards”70.
D. The duties of non-recognition and non-assistance
65. The grave violations of international law linked to the occupation and settlement policy of
Israel entail legal consequences for third States in the form of obligations “not to recognize” the
illegal situation created as a result of those violations, not to “render aid or assistance” in maintaining
that situation, and to “ensure compliance” with international law.
66. The obligations of “non-recognition” and “non-assistance” incumbent on States and
international organizations have been recognized as customary and codified by the International Law
Commission in Article 41 of the Articles on the Responsibility of States for Internationally Wrongful
Acts71 and in Article 42 of the Draft Articles on the Responsibility of International Organizations72.
67. The obligations of “non-recognition” and “non-assistance” have been found to be
applicable in the particular context of the Israeli occupation of Palestinian territories. In its Advisory
Opinion of 9 July 2004, the Court ruled that the construction by Israel of a wall in occupied
Palestinian territory was unlawful, and that this resulted in the following consequences for third
States:
“Given the character and the importance of the rights and obligations involved,
the Court is of the view that all States are under an obligation not to recognize the illegal
situation resulting from the construction of the wall in the Occupied Palestinian
Territory, including in and around East Jerusalem. They are also under an obligation not
to render aid or assistance in maintaining the situation created by such construction”73.
68 Ibid.
69 Report of the United Nations High Commissioner for Human Rights, Database of all business enterprises
involved in the activities detailed in paragraph 96 of 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 Occupied Palestinian Territory, including East Jerusalem, A/HRC/37/39, 1 Feb. 2018.
70 Resolution 77/126, “Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in
the occupied Syrian Golan”, adopted on 12 Dec. 2022 by a vote of 141 in favour, 7 against and 21 abstentions. See also
resolution 76/82, adopted on 12 Dec. 2021 (146-7-20).
71 ILC, “Responsibility of the State for internationally wrongful acts”, annex to United Nations General
Assembly resolution A/RES/56/83, 12 Dec. 2001.
72 ILC, Draft submitted to the General Assembly as a part of the Commission’s report covering the work of that
session (A/66/10, para. 87). The report is reproduced in the Yearbook of the International Law Commission, 2011, Vol. II
(2).
73 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), para. 159 (emphasis added). The Court also mentioned the obligation to ensure compliance with
the Fourth Geneva Convention: “In addition, all the States parties to the Geneva Convention relative to the Protection of
Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter
and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention”
(para. 159, emphasis added).
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The duties of non-recognition and non-assistance are reflected in resolutions adopted by the
Security Council and the General Assembly. The General Assembly once again called upon States,
“consistent with their obligations under the Charter and relevant Security Council
resolutions, inter alia . . . [n]ot to render aid or assistance to illegal settlement activities,
including not to provide Israel with any assistance to be used specifically in connection
with settlements in the occupied territories, in line with Security Council resolution 465
(1980) of 1 March 1980”74.
68. Similiarly, in its resolution 52/35 cited above75, the Human Rights Council called upon
States
“[t]o distinguish, in their relevant dealings, between the territory of the State of Israel
and the territories occupied since 1967, including not to provide Israel with any
assistance to be used specifically in connection with the settlements in these territories
with regard to, inter alia, the issue of trade with settlements, consistent with their
obligations under international law”.
69. In its Opinion on the presence of South Africa in Namibia, the Court underlined that the
obligation of non-recognition covers the area of economic relations in particular:
“The restraints which are implicit in the non-recognition of South Africa’s presence in
Namibia . . . impose upon member States the obligation to abstain from entering into
economic and other forms of relationship or dealings with South Africa on behalf of or
concerning Namibia which may entrench its authority over the Territory”76.
70. The obligation of non-recognition and non-assistance thus presupposes that States do not
develop any economic or financial relationship that may acknowledge the authority of Israel over
Palestinian territory, including East Jerusalem, or give legal effect to the activities of the settlements.
The obligation also involves abstaining from relations with Israel that may contribute to maintaining
its occupation or its settlements in occupied Palestinian territory.
*
* *
71. In conclusion, the obligations incumbent on third States — whether it is the obligation to
ensure compliance with international humanitarian law, to ensure respect for the right to selfdetermination,
to ensure respect for human rights by business enterprises, or the duties of nonrecognition
and non-assistance — all require them to adopt the necessary measures so that they do
not provide any form of aid, directly or indirectly, to the occupation and settlement policy pursued
by Israel in Palestinian territory and so that they ensure that businesses under their jurisdiction abstain
74 A/RES/77/25, Peaceful settlement of the question of Palestine, 30 Nov. 2022.
75 Human Rights Council, resolution 52/35, “Israeli settlements in the Occupied Palestinian Territory, including
East Jerusalem, and in the occupied Syrian Golan”, A/HRC/RES/52/35, 4 Apr. 2023.
76 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, para. 124.
- 20 -
from providing any such aid. Furthermore, States must abstain from maintaining relations with Israel
that may entail a form of recognition, direct or indirect, of the illegal situation created by the
violations of international law committed by that State. Finally, States should adopt reasonable
measures in conformity with international law to encourage Israel to comply with its international
obligations.
___________