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LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND PRACTICES OF ISRAEL IN
THE OCCUPUIED PALESTINIAN TERRITORY, INCLUDING EAST JERUSALEM.
(REQUEST FOR ADVISORY OPINION)
WRITTEN COMMENTS OF
THE ARAB REPUBLIC OF EGYPT
25 October 2023
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Contents
Chapter I: Introduction ........................................................................................................................ 3
Chapter II: Jurisdiction and Competence .......................................................................................... 4
I- No compelling reasons for the Court to decline to render the Advisory Opinion ............... 5
A- The requested Advisory Opinion does not circumvent the principle of consent and does
not concern a bilateral dispute ..................................................................................................... 5
B- The Court is fully capable and competent to deal with the factual aspects of the Advisory
Opinion ......................................................................................................................................... 7
C- The purported impact on reaching a political, negotiated solution to the Palestinian-
Israeli conflict does not constitute a compelling reason to decline jurisdiction ....................... 8
D- The objective of the request is consistent with the Court’s judicial function ................... 10
E- The interpretation of the questions referred by the General Assembly, if necessary, is a
matter to be clarified by the Court in the course of rendering its opinion ............................ 11
Chapter III: Conclusion .................................................................................................................... 13
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Chapter I:
Introduction
1. The General Assembly of the United Nations (the “UN”) requested the International Court of
Justice (“ICJ”), by virtue of General Assembly resolution 77/247 (the “Request”), to render an
advisory opinion on the following questions (the “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:
(a) What are the legal consequences arising from the ongoing violation by Israel of the
right of the Palestinian people to self-determination, from its prolonged occupation,
settlement and annexation of the Palestinian territory occupied since 1967, including
measures aimed at altering the demographic composition, character and status of the
Holy City of Jerusalem, and from its adoption of related discriminatory legislation and
measures?
(b) How do the policies and practices of Israel referred to in paragraph 18 (a) above affect
the legal status of the occupation, and what are the legal consequences that arise for
all States and the United Nations from this status?
2. In its Order of 3 February 2023 (the “Order”),1 the Court fixed 25 July 2023 “as the time limit
within which written statements on the questions may be presented”2 and “25 October 2023 as the
time limit within which States having presented written statements may submit written comments
on the written statements made by other States, in accordance with article 66, paragraph 4 of the
Statute of the Court”3.
3. Egypt, having submitted its written statement on the questions addressed to the Court on 25 July
2023, hereby submits its written comments on the written statements made by other States and
international organisations participating in this procedure, in accordance with the Order.
4. Before addressing the arguments submitted by other States and international organisations
participating in these advisory proceedings, Egypt wishes to emphasize the paramount legal value
of this Advisory Opinion. Flagrant violations of international humanitarian law and international
human rights law are still ongoing in the Occupied Palestinian Territory, including the targeting of
innocent civilians, indiscriminate acts of violence, collective punishment, starvation, siege, and
individual and mass forcible transfer, deportation, and displacement. The horizon for peace can
only be restored if the root causes are addressed, by ending the occupation and establishing an
independent, sovereign and viable Palestinian State, along the pre- June 1967 lines, including East
Jerusalem. To this end, Israeli policies and practices that perpetuate the occupation must cease,
including the annexation, settlements, individual and mass forcible transfers and other measures
that alter the demographic composition, character, and status of the Occupied Palestinian Territory,
including East Jerusalem. These policies, practices, and measures, and the legal pretexts advanced
to justify them, are the subject of this Advisory Opinion.
1 The Order can be found here: https://www.icj-cij.org/sites/default/files/case-related/186/186-20230203-ORD-
01-00-EN.pdf
2 Id., at para. 2 of the Order.
3 Id., at para. 3 of the Order.
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5. As the principal judicial organ of the UN, the Court stated that its answer to a request for an
advisory opinion “represents its participation in the activities of the Organization.”4 The Court’s
advisory opinions “furnish … to the requesting organs the elements of law necessary for them in
their action.”5 As put by the Court, “[w]hen the Court states the law in the exercise of its advisory
function, it lends its assistance to the General Assembly in the solution of a problem confronting
it.”6 Thus, by rendering this Advisory Opinion, the Court would be assuming one of its principal
functions in providing necessary legal advice to the UN, and in particular the General Assembly,
in resolving a conflict that has lingered for over seventy-five years, threatening regional and
international peace and security. This is at the core of the Court’s functions under the UN Charter.
Chapter II:
Jurisdiction and Competence
6. At the outset, Egypt recalls the consistent position of the Court, in its previous advisory opinions,
which confirms that the answer to a request for an advisory opinion “represents [the Court’s]
participation in the activities of the Organization [i.e. the United Nations], and, in principle, should
not be refused”7. While the Court has stated that the “fact that the Court has jurisdiction does not
mean, however, that it is obliged to exercise it”,8 its consistent jurisprudence is that only
“compelling reasons” may lead the Court to decline the request for an advisory opinion.9
7. In its written statement, Egypt already discussed why the Court has jurisdiction to render the
requested Advisory Opinion. Egypt noted that the request presented two legal questions that are
precisely formulated in clear legal terms and raise issues of international law. The General
Assembly’s request for the Advisory Opinion satisfies the conditions of Article 65 of the Statute
of the Court and Article 96(1) of the UN Charter, both ratione personae (the General Assembly
being a duly authorised organ) and ratione materiae (the Request being for a legal question). Egypt
also concluded that there are no compelling reasons for the Court to decline to give the opinion
requested by the General Assembly.
8. Egypt’s written comments will, therefore, be confined to addressing the arguments advanced by a
few participants in the present proceedings, that requested the Court to exercise its discretion to
decline to render the present Advisory Opinion. In the following sections, Egypt will proceed to
respond to the main points brought forward in support of such arguments, namely, (1) that the
requested Advisory Opinion circumvents the principle of consent and concerns a bilateral dispute,
(2) that the factual evidence is insufficient, (3) that answering the question would undermine the
Security–Council endorsed peace process, (4) that the object and purpose of the request is
inconsistent with the Court’s judicial function; and (5) that the referral is based on assumptions not
supported by international law. These will be addressed, in turn, in the following paragraphs.
4 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 [hereinafter the “Wall Advisory Opinion”].
5 Id., at p. 162, para. 60.
6 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019, p.129, p.137 [hereinafter the “Chagos Advisory Opinion”]
7 The Chagos Advisory Opinion, op. cit., para. 65, p.113; Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71 [hereinafter “Interpretation of
Peace Treaties Advisory Opinion”]; 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;
The Wall Advisory Opinion, op. cit., p. 156, para. 44.
8 Chagos Archipelago Advisory Opinion, op. cit., p. 113, para. 63.
9 Id., p. 113, para. 65.
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I- No compelling reasons for the Court to decline to render the Advisory Opinion
A- The requested Advisory Opinion does not circumvent the principle of consent and does not
concern a bilateral dispute
9. A classical argument in this Court’s advisory proceedings, consistently raised by States opposing
the Court’s jurisdiction, is that a bilateral dispute exists on the subject of the request, and that the
advisory proceedings therefore circumvent the principle of consent to adjudication. The Court has
never accepted this argument in the course of its long jurisprudence.
10. In the current proceedings, a few States have submitted that the Court should decline to render the
Advisory Opinion because, inter alia, Israel did not consent to the Court’s exercise of jurisdiction
and did not vote in favor of General Assembly Resolution 77/247, only one party (Palestine)
participated in the drafting of the present Request for an Advisory Opinion, and the questions
referred to the Court concern “the core of the parties’ bilateral dispute” because, inter alia, they
address the final status issues.10
11. As established in this Court’s jurisprudence, the lack of consent of “interested parties” in advisory
proceedings does not prevent the Court from rendering an advisory opinion. The Court affirmed
this in its Wall Advisory Opinion, stating that “the lack of consent to the Court’s contentious
jurisdiction by interested States has no bearing on the Court’s jurisdiction to give an advisory
opinion”.11 In this regard the Court explained that:
“The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in
contentious cases. The situation is different in regard to advisory proceedings even where the
request for an opinion relates to a legal question actually pending between States. The Court's
reply is only of an advisory character: as such, it has no binding force. It follows that no State,
whether a Member of the United Nations or not, can prevent the giving of an Advisory
Opinion which the United Nations considers to be desirable in order to obtain enlightenment
as to the course of action it should take”12.
12. The Court continued to explain that:
“The Court's Opinion is given not to the States, but to the organ which is entitled to request
it; the reply of the Court, itself an ‘organ of the United Nations’, represents its participation
in the activities of the Organization, and, in principle, should not be refused” (emphasis
added).13
13. The written statements advancing the argument of Israel’s lack of consent, have extensively
invoked the Eastern Carelia Advisory Opinion, decided by this Court’s predecessor. This was the
single occasion in which the Permanent Court of International Justice (“PCIJ”) declined to exercise
its advisory jurisdiction.14 It should be noted, however, that in this Advisory Opinion, the Court
had before it a dispute between a member of the League of Nations (Finland) and a non-member
(Russia), brought forward by the League Council. The Court’s refusal to exercise jurisdiction was
due to “the very particular circumstances, which were that the question directly concerned an
already existing dispute, one of the States parties to which was neither a party to the Statute of the
10 Written Statement of the UK, p.29, para. 61; Written Statement of the US, p. 24, para. 3.19; Written Statement
of Canada, p. 4, paras. 15-16, and p.5, para.22; Written Statement of Hungary, p.6, para. 17.
11 The Wall Advisory Opinion, op. cit., p.157, para 47.
12 Interpretation of Peace Treaties Advisory Opinion, op. cit., p. 71; The Wall Advisory Opinion, op. cit., pp.
157-158, para. 47; Western Sahara Advisory Opinion, I.C.J Reports 1975, p. 24, para.31, [hereinafter “The
Western Sahara Advisory Opinion”].
13 Ibid.
14 Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5, [hereinafter “Eastern Carelia”].
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Permanent Court, nor a Member of the League of Nations, objected to the proceedings, and refused
to take part in any way”.15 The Eastern Carelia Advisory Opinion, therefore, must be distinguished
from the case at hand.
14. In fact, the Court has previously stated that by becoming a party to the UN Charter and the Statute
of the International Court of Justice, a State has already given its consent to the exercise of the
Court’s advisory jurisdiction.16
15. The written statements supporting the view that the Court should decline to answer the present
Request emphasise that Israel, and other countries, voted against the General Assembly resolution
requesting the Advisory Opinion and that this resolution was initiated by Palestine. These
arguments, however, are equally unconvincing. As the Court previously stated in the Nuclear
Weapons Advisory Opinion:
“Once the Assembly has asked, by adopting a resolution, for an advisory opinion on a legal
question, the Court, in determining whether there are any compelling reasons for it to refuse
to give such an opinion, will not have regard to the origins or to the political history of the
request, or to the distribution of votes in respect of the adopted resolution.”17
16. Closely tied to the circumvention of consent argument is the claim that the subject matter of the
Request concerns a bilateral dispute. The Court has had numerous opportunities to respond to this
argument. In the Wall Advisory Opinion, the Court stated that it:
“does not consider that the subject-matter of the General Assembly’s request can be regarded
as only a bilateral matter between Israel and Palestine. Given the powers and responsibilities
of the United Nations in questions relating to international peace and security, it is the Court’s
view that the construction of the wall must be directly of concern to the United Nations”18.
17. The Court proceeded to explain that this stems from the fact that the UN has “permanent
responsibility towards the question of Palestine,” which has “its origin in the Mandate and the
Partition Resolution”19. The same applies to the current Request, bearing in mind that such
“permanent responsibility” continues “until the question [of Palestine] is resolved in all its aspects
in a satisfactory manner in accordance with international legitimacy.”20
18. The Court further affirmed, in the Chagos Advisory Opinion, that when an opinion is requested on
a matter of particular concern to the UN, the Court, in giving the opinion requested would neither
be circumventing the principle of consent nor “dealing with a bilateral dispute”.21
19. As already argued by Egypt in its written statement, the current Request, which requires the Court
to respond to the legal elements of the questions subject of the Request22, “are located in a much
broader frame of reference than a bilateral dispute”23. Therefore, the Court, by rendering this
Advisory Opinion, would neither be addressing a “contentious”, bilateral matter, nor
15 The Wall Advisory Opinion, op. cit., p. 157, para. 46; Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996, pp. 235-236, para. 14. [hereinafter “Nuclear Weapons Advisory Opinion”].
16 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, p. 27,
para. 40 [hereinafter “Namibia Advisory Opinion”]; Chagos Advisory Opinion, op. cit., p. 23, para 31.
17 Nuclear Weapons, Advisory Opinion, op. cit., p. 237, para. 16.
18 The Wall Advisory Opinion, op. cit., p. 159, para. 49.
19 Id., at p. 159, para. 49 and p. 165, paras. 70-71.
20 Id., at p. 159, para. 49; General Assembly Resolution 57/107 of 3 December 2002.
21 The Chagos Advisory Opinion, op. cit., p.118, para. 88-90.
22 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, ICJ. Reports 2010, p. 403, p. 415, para. 27, [hereinafter the “Kosovo Advisory Opinion”].
23 The Wall Advisory Opinion, op. cit., p. 159, para. 50; Written Statement of Egypt, p.9 para.44
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circumventing the principle of consent. On the contrary, it would be responding to the legal
elements of a question addressed to it by the General Assembly, and which the Assembly considers
desirable for the purpose of discharging its functions.24
20. In light of the above, Egypt, respectfully, submits that the current Request cannot be viewed as a
bilateral matter between Israel and Palestine nor that it circumvents consent to adjudication.
B- The Court is fully capable and competent to deal with the factual aspects of the Advisory
Opinion
21. A few States have argued that the Court should refuse to render this Advisory Opinion because, on
the one hand, there is a lack of sufficient information and evidence, and on the other hand, the
scope of the questions asked by the General Assembly is too broad and does not set out the factual
premise.25 It was further contended that if Israel does not participate in the advisory proceedings,
the Court “will lack the material explaining the Israeli side of the picture”.26
22. It is, indeed, the case that “to enable a court to pronounce on legal questions, it must also be
acquainted with, take into account and, if necessary, make findings as to the relevant factual
issues”27. The Court previously concluded that the decisive factor was whether the Court had
“sufficient information and evidence to enable it to arrive at a judicial conclusion upon any
disputed questions of fact the determination of which is necessary for it to give an opinion in
conditions compatible with its judicial character”.28
23. When confronted with the claim of insufficient evidence in the Chagos Advisory Opinion, the
Court noted that:
“an abundance of material has been presented before it including a voluminous dossier from
the United Nations. Moreover, many participants have submitted written statements and
written comments and made oral statements which contain information relevant to answering
the questions”.29
24. The Court thus concluded that it was “satisfied that there is […] sufficient information on the facts
before it for the Court to give the requested opinion. Accordingly, the Court cannot decline to
answer the questions put to it”.30
25. Similarly, in the present advisory opinion, the subject matter of the questions raised before the
Court has been amply discussed by different United Nations organs, in particular the UN Security
Council and General Assembly. It has been the subject of a considerable number of reports and
resolutions. The Court itself is familiar with the Palestinian-Israeli conflict, and its history, which
it reviewed in the context of its Wall Advisory Opinion in 2004.31
26. The United Nations Secretariat has submitted a comprehensive dossier containing more than 1800
documents covering the matter before the Court, which includes numerous UN reports on the
matter.32 In fact, the issues raised by the current Request are among the most documented in the
United Nations and other authoritative sources, providing the Court with a solid factual and
24The Kosovo Advisory Opinion, op. cit., p. 415, para. 27; the Wall Advisory Opinion, op. cit., p. 159, para. 50.
25 Written Statement of the UK, p. 30, para. 62; Written Statement of the US, p. 21, para. 3.12.
26 Written Statement of the UK, p. 33 para. 67.1; Written Statement of the US, p. 24, para. 3.19.
27 Namibia Advisory Opinion, op. cit., p.16, p. 27, para. 40; Chagos Advisory Opinion, op. cit., p. 114, para 72.
28 Western Sahara Advisory Opinion, op. cit., pp. 28-29, para 46.
29 Chagos Advisory Opinion, op. cit., p. 114, para. 73.
30 Id., at para. 74.
31 The Wall Advisory Opinion, op. cit., p. 165, para. 69, pp. 165 to 167, paras. 70 to 77.
32 Written Statement of the UK, p. 32, para. 66.1.
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evidentiary basis. In addition, 54 States, the League of Arab States, the African Union, and the
Organization for Islamic Cooperation have submitted written statements presenting the facts and
relevant legal issues.
27. As for Israel’s non-participation (on questions of substance), Egypt would like to recall that the
same argument was raised in the Wall Advisory Opinion and disregarded by the Court as a factor
affecting jurisdiction.33
28. The argument that the Court should decline to exercise jurisdiction because the questions referred
to it “do not set out the factual premise” is similarly unpersuasive. According to this argument, the
questions cover a vast scope that includes “the lifespan of the entire occupation”34 without
specifically identifying the “measures”, “policies” or “practices” to be addressed by the Court.
29. It is unclear whether this argument addresses the factual aspects of the case or rather the meaning
and scope of the questions presented by the General Assembly (discussed in paragraphs 47- 51
below). Egypt, respectfully, submits that the questions put forward are “exact statements” within
the meaning of Article 65 (2) of the Court’s Statute and are formulated in clear and precise terms.
The “policies” and “practices” referred to in the second question are those “referred to in paragraph
18 (a) above”, namely 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”, as well as Israel’s adoption of related
discriminatory legislation and measures. There is a wealth of evidence documenting these
“measures”, “policies” and “practices”, which are addressed at length in the majority of written
statements. Egypt submits that the Court is fully capable of assessing this evidence in light of the
applicable law, as it has successfully done in many fact-intensive cases in the recent past.
30. In light of the above, Egypt considers that there is sufficient evidence and information and that the
Court is fully capable and competent to deal with the factual aspects of the Advisory Opinion
C- The purported impact on reaching a political, negotiated solution to the Palestinian-Israeli
conflict does not constitute a compelling reason to decline jurisdiction
31. It has been argued that, if the Court honours the request for this Advisory Opinion, it would
“undermine an established political process”,35 particularly since the questions put to the Court
address the final status issues.
32. Proponents of this argument contend that the Palestinian-Israeli Conflict should be resolved only
through negotiations and refer to the following passage from the Wall Advisory Opinion:
“the situation can be brought to an end only through implementation in good faith of all
relevant Security Council resolutions, in particular 242 (1967) and 338 (1973)…. The Court
33 Even in its contentious jurisdiction the Court has found that the issue of non-participation is distinct from and
does not affect jurisdiction. In Military and Paramilitary Activities in Nicaragua, it stated in relation to a party
not appearing, that it cannot “be permitted to profit from its absence”. Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, I.C.J. Reports 1986, p. 25, para.
31. This was further confirmed by other international courts and tribunals e.g. Arctic Sunrise (Kingdom of the
Netherlands v. Russian Federation), Provisional Measures, Order of 22 November 2013, ITLOS Reports 2013, p.
230 at p. 243, para. 56; the South China Sea Arbitration, PCA Case No. 2013-19, Award of 12 July 2016, p.47,
para. 122.
34 Written Statement of the UK, p. 32, para, 66; Written Statement of the US, p. 21, para. 3.13, and p. 24, para.
3.19.
35 Written Statement of the UK, p. 35, para. 70; Written Statement of the US, p.19, para. 3.7, and p. 20, para.
3.10, p.22, para. 3.15, p. 22, paras. 3.14 – 3.15, p. 25, para. 3.22, p. 31-32, para. 5.5-5.7; Written Statement of
Italy, p. 3, para. 5; Written Statement of Hungary, p.10, para.37; Written Statement of Canada, p.5, paras. 19-20-
21.
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considers that it has a duty to draw the attention of the General Assembly… to the need for
these efforts to be encouraged with a view to achieving as soon as possible, on the basis of
international law, a negotiated solution to the outstanding problems and the establishment of
a Palestinian State, existing side by side with Israel and its other neighbours, with peace and
security for all in the region”.36
33. As already discussed in Egypt’s written statement, the argument that the current Advisory Opinion
could impede a political solution should be dismissed. In the Nuclear Weapons Advisory Opinion,
the Court examined the argument that a reply from the Court could adversely affect disarmament
obligations. The Court expressed its awareness that its conclusions would “have relevance for the
continuing debate on the matter in the General Assembly and would present an additional element
on the matter. Beyond that, the effect of the opinion is a matter of appreciation” (emphasis added).37
It then stated in no uncertain terms that “it cannot regard this factor as a compelling reason not to
exercise its jurisdiction”.38
34. Similarly, in the Wall Advisory Opinion, the Court dealt with the contention that its opinion could
complicate and undermine the negotiations envisioned by the Security-Council endorsed
Roadmap, and that the Court should therefore exercise its discretion to decline to answer the
question. The Court further indicated that, “it is conscious that the Roadmap which was endorsed
by the Security Council in resolution 1515 (2003) constitutes a negotiating framework for the
resolution of the Israeli-Palestinian Conflict”39 and that “it is not clear, however, what influence
the Court’s opinion might have on those negotiations”.40 The Court again concluded that it could
not regard this as a compelling reason to decline answering the question.41
35. A few written statements have argued that the Court, in the Wall Advisory Opinion, avoided
rendering an opinion that would dictate the outcome of the final status talks.42 In support of this,
they highlight that the Court only examined “other issues to the extent that they might be necessary
for its consideration of the question put to it.”43 This, however, misconstrues the Court’s statement
which, simply affirmed that it would limit itself to answering the question before it. The Court
clearly stated that “the question that the General Assembly has chosen to ask the Court is confined
to the legal consequences of the Construction of the wall.”44 The Court explained that it would not
address other aspects of the Palestinian-Israeli conflict, except to the extent they affected the
question put to it.45
36. Egypt considers that the Court’s present Advisory Opinion serves as an essential “additional
element” for the United Nations General Assembly to continue to carry out its role in relation to
the Palestinian-Israeli conflict, especially in the absence of any prospect for a peaceful solution.
As stated by the Court in the Wall Advisory Opinion:
“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
36 Written Statement of the UK, p. 36, para. 71.3; Written Statement of the US, p. 19, para. 3.7; The Wall
Advisory Opinion, op. cit., p. 200-201, para. 162.
37 Nuclear Weapons Advisory Opinion, op. cit., p. 237, para. 16; The Wall Advisory Opinion, op. cit., p. 160,
para. 51.
38 Nuclear Weapons Advisory Opinion, op. cit., p. 237, para. 17; The Wall Advisory Opinion, op. cit., p. 160,
para. 51.
39 The Wall Advisory Opinion, op. cit., p. 160, para. 53.
40 Ibid.
41 Ibid.
42 Written Statement of the US, p. 19, para 3.7.
43 Written Statement of the US, p. 19, para 3.7; The Wall Advisory Opinion, op. cit., p. 160, para. 54.
44 The Wall Advisory Opinion, op. cit., p. 160, para. 54.
45 Ibid.
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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”.46
37. Egypt, respectfully, submits that the Court, as the principal judicial organ of the UN, should not
decline to answer the question for its purported impact on the political process. Rather, the Court
should render this Advisory Opinion to assist the General Assembly in discharging its functions in
relation to this ongoing conflict. This is particularly the case given the complete absence of serious
peace efforts and any prospect for a just and comprehensive settlement.
D- The objective of the request is consistent with the Court’s judicial function:
38. It has been argued that the intention of the present request by the General Assembly was “not to
seek the Court’s opinion on a matter on which it requires assistance, but instead, to seek the Court’s
confirmation of particular legal conclusion relevant to the resolution of the parties’ bilateral
dispute”.47 In this context, one written statement has implied that the purpose of the present request
is to exploit it as a political strategy. This argument rests on the assumption that the object and
purpose of the request is not “consistent with the Court’s judicial function and role as the principal
judicial organ of the United Nations”.48 It is also similar to the classical argument that the question
put forward to the Court is not, in reality, a legal question, which has been addressed, and refuted,
in Egypt’s written statement.49
39. The Court has made it clear that, in determining whether it is confronted with a legal question, it
is not concerned with the political nature of the motives which may have inspired the request, or
the political implications which its opinion might have.50 The purpose and motives inspiring the
request are irrelevant to the question of jurisdiction.
40. Egypt, respectfully, submits that an inquiry into the motivation for an organ - duly authorised under
Article 96, paragraph 1, of the UN Charter – to request an Advisory Opinion is immaterial, as
resolutions adopted by the General Assembly are an effective expression of its legally valid will.
As already addressed in Egypt’s written statement, Resolution A/RES/77/247 was validly adopted
from the procedural point of view by the constitutionally required majority of members of the
United Nations present and voting.51 It, therefore, cannot be considered but a reflection of the
General Assembly’s legally valid will, whose object and purpose is to request the Advisory
Opinion of the Court to assist it in carrying out its functions.
41. The Court previously stated that “it is not for the Court itself to purport to decide whether or not
an advisory opinion is needed by the Assembly for the performance of its functions. The General
Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own
needs”52. It also indicated that a request from “the General Assembly for an advisory opinion to
examine a situation by reference to international law concerns a legal question”53.
46 Id., at p. 200, para. 161.
47 Written Statement of the UK, p.39, para. 78.
48 Written Statement of the UK, p. 37, para, 75; Written Statement of the Czech Republic, p. 2, para.2.
49 Written Statement of Egypt, p. 6-7, para 26-33.
50The Kosovo Advisory Opinion, op. cit., p. 415, para. 27. The Wall Advisory Opinion, op. cit., p. 155, para. 41,
Nuclear Weapons Advisory Opinion, op. cit., p. 234, para.13.
51 Written Statement of Egypt, p. 5, para 19.
52 Nuclear Weapons Advisory Opinion, op. cit., p. 237, para. 16; Chagos Advisory Opinion, op. cit., p. 115, para.
75.
53 Chagos Advisory Opinion, op. cit., p.112 para. 58.
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42. In addition, the Court repeatedly stated that “the fact that a question has political aspects does not
suffice to deprive it of its character as a legal question”,54 or to “deprive the court of a competence
expressly conferred on it by its statute”.55 The Court further explained that “whatever its political
aspects, the Court cannot refuse to respond to the legal elements of a question which invites it to
discharge an essentially judicial task, namely, in the present case, an assessment of an act by
reference to international law”56.
43. Finally, the Court has repeatedly indicated that it cannot determine, or even concern itself with,
what steps the General Assembly may wish to take after receiving the Court’s opinion, or what
effect that opinion may have in relation to those steps.57
44. In light of the foregoing, Egypt is of the view that it is only for the General Assembly to determine
the object of its requests for Advisory Opinions from the Court. Such object and purpose is always
reflected in the resolution validly adopted by the Assembly, which is duly authorized under Article
96, paragraph 1, of the UN Charter. Both the political motivations and political consequences of
the request cannot deprive the Court of exercising its jurisdiction.
45. Declining to answer the question by reference to the “object and purpose” of the present Request
would be contrary to the consistent jurisprudence of the Court and would undermine the decisions
taken by the General Assembly through the adoption of its resolutions. Egypt, therefore,
respectfully submits that the General Assembly, as a duly authorised organ, has validly invited the
Court to address a legal question that is clearly within its judicial function.
E- The interpretation of the questions referred by the General Assembly, if necessary, is a
matter to be clarified by the Court in the course of rendering its opinion
46. It has been argued that, “to the extent that the second question could be construed as asking the
Court to declare that the Israeli occupation has been rendered unlawful or void, the Court should
decline that invitation on the basis that such an assessment is not supported by international law”58.
This is based on the premise that “the legal status of the occupation under international
humanitarian law results from the fact of occupation alone”.59
47. Egypt respectfully submits that, once it has established its jurisdiction and competence to render
the Advisory Opinion, it is up to the Court to assess and interpret the questions put forward to it in
light of the relevant law. As the questions involve the interpretation of international norms and
have been “framed in terms of law and raise problems of international law … [they are by their]
very nature susceptible of a reply based on law”.60
48. In the Kosovo Advisory Opinion, the Court first determined it had jurisdiction and competence to
answer the question put forward to it, then proceeded to interpret the scope and meaning of the
question. The Court recalled that, in previous jurisprudence,
“it has departed from the language of the question put to it where the question was not
adequately formulated or where the Court determined, on the basis of its examination of the
54 The Kosovo Advisory Opinion, op. cit., p. 415, para. 27; United Nations Administrative Tribunal Advisory
Opinion, op. cit., p. 172, para. 14.
55 Nuclear Weapons Advisory Opinion., p. 234, para. 13; United Nations Administrative Tribunal Advisory
Opinion, op. cit., p. 172, para. 14.
56 Ibid.
57 The Kosovo Advisory Opinion, op. cit., p. 421, para. 44.
58 Written Statement of the US, p. 29, para 4.6.
59 Id., at p. 27, para. 4.2.
60 Written Statement of Egypt, p. 6, para 30; Western Sahara Advisory Opinion, op. cit., p. 18, para. 15; The Wall
Advisory Opinion, op. cit., p. 153, para. 37.
12
background to the request, that the request did not reflect the “legal questions really in issue”.
Similarly, where the question asked was unclear or vague, the Court has clarified the question
before giving its opinion”.61
49. The Court has previously stated in its Nuclear Weapons Advisory Opinion that “to contend that it
should not deal with a question couched in abstract terms is a “mere affirmation devoid of any
legal justification” and “the Court may give an advisory opinion on any legal question, abstract or
otherwise”62. On other occasions, it observed that “lack of clarity in the drafting of a question does
not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in
interpretation, and such necessary clarifications of interpretation have frequently been given by the
Court”.63 It is, therefore, up to the Court to interpret the scope and clarify the meaning of the
question put forward to it, after having established its jurisdiction.
50. If the Court is satisfied that the present request is inadequately worded or does not reflect the real
legal issues, it may clarify the question or even reformulate it, in exceptional circumstances, to
ensure it can give a reply “based on law”.64 Having said that, Egypt submits that the present request
is sufficiently clear and precise to allow the Court to give such a reply. By asking “[w]hat are the
legal consequences” arising from ongoing violations, since 1967, “[h]ow do the policies and
practices … affect the legal status of the occupation, and what are the legal consequences” that
arise for States and the United Nations – the General Assembly has put forward to the Court clear
“legal questions”, inviting replies based on international law.65
51. Egypt respectfully submits that the second question is clear in that it requires the Court to assess
the legality of the prolonged occupation, settlement and annexation of Palestinian territory
occupied in 1967. It invites an inquiry into whether the occupation is lawful under international
law, and does not confine itself to requesting the Court’s pronunciation on whether “occupation
law continues to apply based on the fact of occupation”.66 To reduce this question to an assessment
of “status” as a characterization of the current situation is no more than a play on semantics,
intended to deprive the question of any meaning.
52. With respect to the claim that the second question is not supported by international law, one State
participating in these proceedings contends that the legal status of a belligerent occupation does
not change if the occupation is prolonged or if illegal violations of jus in bello are committed by
the Occupying Power. However, the proposition that occupation is, merely, a de facto situation
whose legality cannot be called into question cannot be accepted on either legal or moral grounds.
53. The majority of participating States and international organisations argued in their written
statements that the occupation is, indeed, rendered unlawful by Israeli policies and practices
outlined in the question. Egypt has already clarified, in its written statement, that the prolonged
nature of the Israeli occupation is an ongoing violation of the principle of self-determination, while
measures that result in permanent changes to the occupied territory, including annexation and
61 Kosovo Advisory Opinion, p. 423, para. 50; Interpretation of the Greco- Turkish Agreement of 1 December
1926 (Final Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B, No. 16; Interpretation of the
Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, p. 89, para.
35; United Nations Administrative Tribunal, Advisory Opinion, op. cit., p. 348, para. 46); Chagos Advisory
Opinion, op. cit., p. 129, para. 135.
62 Nuclear Weapons Advisory Opinion, op. cit., para. 15, p. 236; Conditions of Admission of a State to
Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, 1948, ICJ Reports 1947-1948,
p. 61; Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory
Opinion, ICJ Reports 1954, p. 51 [hereinafter the “United Nations Administrative Tribunal Advisory Opinion”];
Namibia Advisory Opinion, op. cit., p. 27, para. 40.
63 Chagos Advisory Opinion, op. cit., p. 112, para 61; The Wall Advisory Opinion, op. cit., p. 153-154, para. 38.
64 Chagos Advisory Opinion, op. cit., p. 129, para. 135.
65 Written Statement of Egypt, p. 6, para. 30.
66 Written Statement of the US, p. 28, para 4.6.
13
settlements, are contrary to the fundamental principles of the law of belligerent occupation and the
prohibition of the acquisition of territory through force. The individual or collective mass forcible
transfer and deportation of Palestinians from the occupied territory, whether to the Occupying
Power or the territory of any other country, contrary to article 49 of the Fourth Geneva Convention,
is also a measure aimed at altering the demographic situation and a grave breach of the
Convention.67 This applies to all the Palestinian people and in all the territories lying beyond the
Green Line, separating Israel from the Occupied Palestinian Territory,68 including the Gaza Strip
(over which Israel still maintains effective control),69 and the West Bank, including East Jerusalem.
54. The above-mentioned violations of self-determination and the inadmissibility of the acquisition of
territory through force cannot be justified by reference to the principle of self-defence. Under
international law, self-defence is not a carte blanche. The Court itself previously found in the Wall
Advisory Opinion that article 51 of the UN Charter, which recognizes the inherent right of selfdefense
in the case of armed attack by one State against another State, has no relevance in this
case, as the acts invoked by Israel were acts arising out of the occupied Palestinian Territory, which
is under Israeli effective control, and were not imputable to another State.70
55. The Court has previously acknowledged that “differences of views … on legal issues have existed
in practically every advisory proceeding”.71 This cannot constitute a compelling reason for the
Court to decline to answer the question put forward to it.
56. As the Court mentioned in the Nuclear Weapons Advisory Opinion, “[i]n seeking to answer the
question put to it by the General Assembly, the Court must decide, after consideration of the great
corpus of international law norms available to it, what might be the relevant applicable law.”72 All
the aforementioned questions are relevant legal issues that the Court would need to address, after
establishing its jurisdiction, to provide an effective answer to the questions asked by the General
Assembly.
Chapter III:
Conclusion
57. In view of the arguments submitted in its written statement, and for the reasons outlined under
Sections A, B, C, D and E above, Egypt concludes that there are no compelling reasons for the
Court to decline to give the opinion requested by the General Assembly. The Court, indeed, has a
duty to render the Advisory Opinion, to assist the General Assembly in discharging its functions
and reviving the horizon for peace.
58. Regarding the questions put forward to the General Assembly in its Resolution A/RES/77/247 of
30 December 2022, Egypt, respectfully, refers to the submissions presented in its written statement.
59. By participating in the present proceedings, Egypt aspires towards attaining a just, peaceful and
legal end to all the violations that prompted the Request of the General Assembly. Egypt is
convinced that the Court will play a decisive role in clarifying and consolidating the applicable
international law, thus assisting the General Assembly in contributing to a just, lasting and
comprehensive settlement of the Palestinian-Israeli conflict.
67 Written Statement of Egypt, p. 38-39, para. 255.
68 Id., at p. 12, para. 58.
69 Id., at p. 35, para. 240 – 242.
70 The Wall Advisory Opinion, op. cit., p. 62, para. 139.
71 Ibid.
72 Nuclear Weapons Advisory Opinion, I.C.J. Reports 1996, p. 226, para 23.
14
25 October 2023
Sameh Shoukry
Minister of Foreign Affairs
The Arab Republic of Egypt
Submission of the Arab Republic of Egypt’s Written Comments on the following request for
advisory opinion – The International Court of Justice:
“Legal Consequences arising from the Policies and Practices of Israel in the Occupied
Palestinian Territory, including East Jerusalem”.
Written comments of Egypt