Written statement of the Organisation of Islamic Cooperation

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
19035
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
ORGANISATION OF ISLAMIC COOPERATION
July 2023
[Translation by the Registry]
INTRODUCTION
1. In accordance with the possibilities open to it under the proceedings initiated before the
International Court of Justice, the Organisation of Islamic Cooperation has the honour to present here
its observations on the request for an advisory opinion submitted to the International Court of Justice
by the General Assembly of the United Nations on 20 December 2022 concerning the consequences
arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East
Jerusalem.
2. The request made by the General Assembly concerns the following two-fold question:
“(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?”1
3. By way of introduction, and with a view to illuminating the spirit in which it is submitting
its observations, the Organisation of Islamic Cooperation would recall that it is currently composed
of 57 member States, bound by a Charter dating from 4 March 19722. Palestine, which is recognized
as a State by all members of the Organisation, is itself a full member. Over and above the general
aim of strengthening solidarity and co-operation between member States, the Charter specifically
includes among its objectives: “[t]o support and empower the Palestinian people to exercise their
right to self-determination and establish their sovereign State with Al-Quds Al-Sharif as its capital,
while safeguarding its historic and Islamic character as well as the Holy places therein”3. It is
therefore hardly surprising that the Organisation of Islamic Cooperation is particularly mindful of
and profoundly concerned by the deterioration in the situation of the Palestinian people, who have
been denied their fundamental rights since 1948, and by the growing violence affecting the region.
4. From the inception of the Zionist movement, its leaders held ambitions to create a Jewish
State in Palestine, ambitions underpinned by the idea of re-establishing the Kingdom of David as it
was imagined in the Jewish memory. Those ambitions involved a vague territorial claim conceived
without any thought for the Arab people that has been present in the territory for centuries. Jewish
immigration to Palestine, which for a long time had been limited, was encouraged by support from
Great Britain. It increased under the British Mandate and, as a result of the Nazi persecution of the
Jewish people, had become large-scale by the end of the Second World War. That is how the idea of
partition into a State of Israel and a State of Palestine, living side by side, took hold. It could only
take place at the expense of the right of the Palestinian people to self-determination in the whole of
the colonized territory.
1 United Nations General Assembly resolution 77/247, 30 Dec. 2022 (Ann. 1).
2 All information about the Organisation can be found on its website: http://www.oic-oci.org.
3 Charter of the Islamic Conference, adopted on 4 March 1992 and amended in 2008, Art. [I], para. 8 (Ann. 2).
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5. The Arab people of Palestine initially rejected partition, representing as it does a
dismemberment of its historical territory. The Jewish population, for its part, which was immediately
established as the State of Israel, would return governments professing an increasingly firm intention
not to accept the territorial compromise proposed by the United Nations and to appropriate instead
the entirety of Mandatory Palestine. That approach would inevitably result in repeated violations of
all the fundamental norms of international law: the right of peoples to self-determination and their
right to territorial integrity; the prohibition of the use of force; the non-recognition of territories
acquired by force; respect for humanitarian law in the event of military occupation of a foreign
territory, in particular the prohibition of transfers of the population of the occupying Power to the
occupied territory; in short, all the norms relating to human rights.
6. Those repeated and increasing violations have been the subject of multiple reports and
expressions of condemnation and are today fully documented. In 2003, concerned by the potentially
grave consequences on the situation of Palestine of the security barrier being built by Israel in order
to encircle the West Bank and create enclaves within it, the United Nations General Assembly
requested the Court to render an advisory opinion on the matter. The Opinion delivered by the Court
on 9 July 2004 found that the structure was illegal under international law and that Israel had an
obligation to dismantle it and make reparation for all the consequences thereof4. Thus far, however,
Israel has not complied with the Court’s findings in any respect and has continued the planned
extension of the separation wall notwithstanding the finding that it is illegal.
7. In keeping with its disregard of the Court’s findings, Israel has continued to implement and
extend the practices and policies denounced at that time. Territories have been annexed, the military
occupation of Palestine has continued and the policy of settlement, openly encouraged by successive
Israeli governments, has led to large Jewish settlements throughout the West Bank. The settlements
are developing thanks to support by the State and the involvement of its army. This has resulted in
the territorial fragmentation of Palestine, the segregation and control of the Palestinian population,
very serious violations of human rights and of humanitarian law in case of armed conflict applicable
in the Occupied Palestinian Territory, the dispossession of land and property belonging to
Palestinians and denial of their economic and social rights.
“Since its establishment in 1948, Israel has pursued a policy of establishing and
maintaining a Jewish demographic hegemony and maximizing its control over land to
benefit Jewish Israelis while restricting the rights of Palestinians and preventing
Palestinian refugees from returning to their homes.”5
8. The full gravity of the situation was highlighted by the United Nations General Assembly
in the resolution seising the Court in these advisory proceedings. The General Assembly expresses:
“grave concern about the continuing systematic violation of the human rights of the
Palestinian people by Israel, the occupying Power, including that arising from the
excessive use of force and military operations causing death and injury to Palestinian
civilians, including children, women and non-violent, peaceful demonstrators, as well
as journalists, medical personnel and humanitarian personnel; the arbitrary
imprisonment and detention of Palestinians, some of whom have been imprisoned for
decades; the use of collective punishment; the closure of areas; the confiscation of land;
the establishment and expansion of settlements; the construction of a wall in the
4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004 (I), p. 136 et seq.
5 Amnesty International, Israel’s Apartheid Against Palestinians, Cruel System of Domination and Crime Against
Humanity, Report of February 2022, p. 7 (Ann. 3).
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Occupied Palestinian Territory in departure from the Armistice Line of 1949; the
destruction of property and infrastructure; the forced displacement of civilians,
including attempts at forced transfers of Bedouin communities; and all other actions by
it designed to change the legal status, geographical nature and demographic composition
of the Occupied Palestinian Territory, including East Jerusalem”6.
9. Yet these are not human rights violations such as other peoples may have the misfortune to
experience. The plan promoted by the State of Israel is a more serious matter of impeding and
ultimately frustrating the realization of the Palestinians’ fundamental right to self-determination. The
Court condemned that intention in its 2004 Opinion: “The obligations erga omnes violated by Israel
are the obligation to respect the right of the Palestinian people to self-determination, and certain of
its obligations under international humanitarian law.”7 Since that time, Israel’s policy has intensified,
bringing dire consequences and eroding any possibility of creating a Palestinian State.
10. Contrary to its obligations under the Charter of the United Nations and the International
Bill of Human Rights, Israel has consolidated its desire to Judaize the country. This Judaization of
the State of Israel is happening and is in violation of Article 2 of the Universal Declaration of Human
Rights, which provides: “Everyone is entitled to all the rights and freedoms set forth in this
Declaration, 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.” When it came into being,
however, Israel acknowledged itself to be a secular State. But that national project has been gradually
changed. Today that State presents itself as a religious State, and only people professing the Jewish
faith enjoy all the rights recognized by the State, to the detriment of non-Jewish people who therefore
suffer discrimination. This shift reached its climax with the Israel — the Nation-State of the Jewish
People law of 19 July 2018, adopted by the Knesset as one of the country’s basic laws8. And the
groups in power make no secret of their wish to extend the State of Israel to considerable portions of
the West Bank.
11. In this context, the question of Jerusalem has become a major issue. The plan for a religious
State presupposes at the same time strengthening the State’s hold on the whole of the City of
Jerusalem in order to empty it of its Arab inhabitants and turn it into the reunified capital of Israel
and the centre of the Jewish faith. This Judaization of Jerusalem is taking place in gross violation of
the rights of the Palestinians over the city and the need to respect the religious freedoms of religions
other than that which has become the State religion of the Jewish State, amid grave indifference to
the relevant provisions of international law.
12. All those policies, including both the measures intended to deprive the Palestinian people
of its right to self-determination and those to appropriate the City of Jerusalem, have been
implemented for several decades through increasingly violent policies in which the Israeli army plays
a central role. They are placing peace in the region in grave peril.
13. Believing that only a full and fair settlement of the Palestinian question in all its aspects
can restore peace, the Organisation of Islamic Cooperation hopes that the new Advisory Opinion
requested of the Court will help produce a precise legal characterization of all aspects of the situation
and thereby result in the United Nations and all the Member States taking the necessary measures to
6 See Ann. 1.
7 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004 (I), p. 199, para 155.
8 Basic-Law: Israel — The Nation-State of the Jewish People, adopted by the Knesset on 19 July 2018 (Ann. 4).
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end the violations of fundamental rules of international law and pave the way for a just settlement of
the conflict. That is why it is taking the opportunity it has been given to participate in these
proceedings by means of this Written Statement.
14. The observations submitted here to the Court by the Organisation of Islamic Cooperation
relate to the following points:
 the question of the Court’s jurisdiction to render the opinion requested in this case and the
admissibility of the request for an opinion (I);
 the context in which the situation submitted for Court’s consideration has developed (II);
 the law to be applied in responding to the questions put to the Court (III);
 Israel’s repeated violation of the right to self-determination of the Palestinian people and the
means systematically used to impede realization of that right (IV);
 the annexation and settlement of Jerusalem in disregard of the rights of Palestinians to make it
their capital (V);
 how the policies and practices of Israel affect the legal status of the occupation and the legal
consequences that arise for all States and the United Nations from that status (VI).
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I. JURISDICTION AND ADMISSIBILITY
15. This matter has been brought before the Court under Article 96 of the United Nations
Charter, paragraph 1 of which provides: “The General Assembly or the Security Council may request
the International Court of Justice to give an advisory opinion on any legal question.” It is nevertheless
necessary to verify that the General Assembly has not exceeded the competence conferred on it by
the Charter in putting a question to the Court. It should therefore be noted that, under Article 10 of
the Charter, the General Assembly may discuss any questions or matters within the scope of the
Charter and, under Article 11, any questions relating to the maintenance of international peace and
security. Peace has indeed long been under serious threat in Palestine and is even more so with the
recent hardening of Israeli policy in that respect. The United Nations has therefore repeatedly
expressed its concern in that regard. The Security Council thus stated in 2016 that the policy in
question was “a major obstacle to the achievement of . . . a just, lasting and comprehensive peace”9.
As early as 1980, the General Assembly found that Israeli policies constituted “a serious obstruction
to achieving a comprehensive, just and lasting peace”10. The request for an advisory opinion
transmitted to the Court on 20 December 2022 in relation to the situation of Palestine is one
expression of that concern. It falls within the scope of the tasks incumbent upon the General
Assembly.
16. Transmission of the request must however comply with the distribution of competences
between the Security Council and the General Assembly as laid out in Article 12, paragraph 1:
“While the Security Council is exercising in respect of any dispute or situation the functions assigned
to it in the present Charter, the General Assembly shall not make any recommendation with regard
to that dispute or situation unless the Security Council so requests.” The Court examined this issue
in detail in its 2004 Opinion. It construed Article 12 in line with the contemporary interpretation,
which now establishes, first, that the General Assembly may examine questions that remain on the
agenda of the Security Council where the Security Council is no longer adopting resolutions on the
matter and, second, that both organs may deal with the same matter at the same time, since each does
so from a different angle. It thus held that “the accepted practice of the General Assembly, as it has
evolved, is consistent with Article 12, paragraph 1, of the Charter” and that “by submitting that
request the General Assembly did not exceed its competence”11. That finding applies in exactly the
same way to the present request for an opinion.
17. It is also necessary to verify that the advisory proceedings do in fact concern a legal
question. In the present case, the way the question is framed is itself sufficient to confirm its legal
character. The Court is requested to clarify the “legal” consequences of the policies and practices of
Israel in Palestine. Paragraph 18 of the resolution containing the request for an opinion moreover
specifies that the Court is asked to render that 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”.
The proceedings have therefore been brought under that body of international law. The question
posed is a legal one and the reply must be based on law.
9 Security Council, resolution 2334 of 23 December 2016, para. 1.
10 General Assembly, resolution 476 of 30 June 1980, para. 3, and resolution 478, para. 4, of [20 August] 1980.
11 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 1[50], para. 2[8].
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18. Israel will doubtless contend that the situation has political aspects. We should recall the
Court’s position on that point:
“Whatever its political aspects, the Court cannot refuse to admit the legal
character of a question which invites it to discharge an essentially judicial task, namely,
an assessment of the legality of the possible conduct of States with regard to the
obligations imposed upon them by international law”12.
19. The legal character of the question posed in this request for an opinion is borne out by the
fact that the Court is not being requested to rule on a hypothetical phenomenon — the “possible”
conduct of various States as in the case referred to above. Here we are dealing with a very real factual
situation for which a specific State assumes responsibility: the violation by force of the fundamental
rights of a people to its existence, to self-determination and to respect vis-à-vis that people for all the
provisions of international law, including human rights law and international humanitarian law. The
legality of the situation at issue must therefore be assessed in light of the international obligations
incumbent upon the State responsible for that situation.
20. One further point remains to be examined as regards the Court’s jurisdiction to rule on the
request for an opinion that has been submitted to it. Are we faced with a dispute in which the advisory
function is being diverted from its purpose and wrongly used as a substitute for a contentious function
that cannot be exercised in the absence of consent by the parties concerned? The Court has clarified
this question on a number of previous occasions. It has seen fit to exercise its advisory role when
faced with a dispute, whether between States or between a State and an international organization:
“Differences of views among States on legal issues have existed in practically every advisory
proceeding; if all were agreed, the need to resort to the Court for advice would not arise.” 13
21. The actual existence of a dispute between States, which would fall within the compass of
contentious proceedings, is not the same thing as the need for the plenary organ of the
United Nations, charged with ensuring international peace and security, to obtain legal clarifications
that may be of use to it when adopting a position on a question within its competence in that field. It
is indisputable here that the United Nations General Assembly, faced with the Palestinian question,
might find it necessary to obtain clarification on the legal aspects of the situation.
22. Whether or not there is a specific dispute involved in the request for an advisory opinion
is irrelevant. The purpose of the advisory function is to give legal advice to the organs and institutions
requesting it. And it is indeed advice of this nature that the General Assembly is seeking in its
resolution of 20 December 2022. The precise identification of the rules in force governing a specific
situation at a given moment, how those rules interact and their relationship with general principles,
and how they should be applied in practice together are all the necessary conditions for the
establishment of international public order, which is itself the foundation for peace. International
public order has been seriously undermined by the situation which has developed in Palestine since
1947. The General Assembly has appealed to the authority of the Court for an assessment of the legal
aspects of that situation. Armed with the Court’s replies, it will be in a better position to consider
how to help bring an end to the serious disorder that is rendering the prospects for peace in Palestine
ever more remote.
12 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 234, para. 13.
13 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 24, para. 34.
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23. We would add, as further confirmation that there is nothing to prevent the Court from
ruling on the request for an opinion submitted to it, that advisory proceedings are independent of
whether or not a State has accepted the Court’s jurisdiction:
“The jurisdiction of the Court under Article 96 of the Charter and Article 65 of
the Statute, to give advisory opinions on legal questions, enables United Nations entities
to seek guidance from the Court in order to conduct their activities in accordance with
law. … As the opinions are intended for the guidance of the United Nations, the consent
of States is not a condition precedent to the competence of the Court to give them.”14
And also:
“[N]o 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. 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.”15
24. We are confident that the Court will find that the texts governing its jurisdiction to render
advisory opinions allow it to respond to the request addressed to it. This is a reflection of its position
within the United Nations system, where it is under a duty to contribute in this way to the smooth
operation of the Organization as a whole. There would have to be compelling reasons to induce it to
refuse. There are, on the contrary, a great many positive reasons why the Court should agree to
enlighten the General Assembly, together with all the Member States and other intergovernmental
organizations, on the legal aspects of a situation which gives particular cause for concern.
14 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations,
Advisory Opinion, I.C.J. Reports 1989, p. 188, para. 31.
15 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J.
Reports 1950, p. 71.
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II. THE CONTEXT IN WHICH THE SITUATION SUBMITTED FOR
THE COURT’S CONSIDERATION HAS DEVELOPED
25. The situation that the Court must examine in order to reply to the questions put by the
United Nations General Assembly is that prevailing in the Palestinian territory occupied by Israel
since 1967. Though the timescale of the situation is clearly defined, it is the outcome of changes that
have taken place over a long period, one which has lasted a century. It can be understood and
characterized in legal terms only in light of all the events that preceded it. What is referred to as the
Israeli-Palestinian conflict has its origins in the nineteenth century when the Zionist project came
into being. That project, as it came to fruition with the creation of the State of Israel, collided head
on with the advance of the Palestinian people towards decolonization and has hindered it to the point
where it is today increasingly improbable.
26. Accordingly, in order to grasp the rationale of the State of Israel from its beginnings in the
Zionist project up to its occupation of the whole of the Palestinian territory, we shall first recapitulate
the events of an initial period, the period before the 1967 occupation (A), before examining the
various phases that have marked the period of occupation stricto sensu of the Palestinian territory
(B).
A. Events before the Israeli occupation of the Palestinian territory
27. The military occupation of the whole of Palestine by Israel in 1967 was the logical
culmination of a process for which the following distinct earlier phases had paved the way:
 the pre-Mandate period (1);
 the British Mandate from 1922 to 1947 (2);
 intervention by the United Nations in the form of resolution 181 (1947) and what followed (3);
 the Arab-Israeli war of 1948-1949 and its territorial and human consequences (4).
1. The pre-Mandate period
28. The region in which today’s Palestine is located formed part of the Arab provinces that
were for four centuries under the yoke of the Ottoman Empire16. Modern Palestine came about in the
1860s and 1870s and was divided into three administrative units, with Acre, Nablus and Jerusalem
as their respective administrative capitals. Jerusalem, however, formed a separate sanjak subject to
a specific tax régime as a result of the presence of the Holy Places and the resulting pilgrimages.
Europe’s interest in Palestine began in the nineteenth century, in particular through the expansion of
the religious missions of various countries and archaeological sites associated with biblical studies.
29. Zionism, which takes its name from Mount Zion, one of the hills of Jerusalem, emerged in
the nineteenth century as a nationalism in search of a State. Jewish people were at that time (as they
still are) scattered over a very large number of States on every continent. Some of them emigrated to
Palestine fleeing the persecution they faced in various countries: Spain as a result of the Inquisition
in the fifteenth century; Poland as a result of the massacres in the seventeenth; Russia as a result of
16 See Elias Sanbar, Les Palestiniens dans le siècle, Découvertes, Paris, Gallimard, 1994.
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the pogroms in the nineteenth; and France in the grip of the Dreyfus affair at the end of the nineteenth
century.
30. Back then this was a religious Zionism, with no political manifesto or ambitions to
dominate Palestine. At the end of the nineteenth century, religious Zionism came to exist in tandem
with a political Zionism based on the writings of Théodor Herzl who at that time developed a theory
of a State of the Jews as the best way to combat anti-Semitism and situated it in Palestine17. The
World Zionist Organization emerged in 1897, advocating the establishment of a Jewish State in
Palestine. The resonance that the project encountered in messianic Protestant circles then brought
support from the British Government and a favourable reception in the United States. Portrayed by
Théodor Herzl himself as a “colonial” programme, its aim was the conquest of land and a policy of
populating that land with emigrants arriving as settlers.
31. During the First World War, a close associate of the founder of Zionism, Israel Zangwill,
explained in the British press: “If the 600,000 Arabs of Palestine could be expropriated with
compensation, or if they could be induced to emigrate to Arabia, since they move readily, it would
solve Zionism’s greatest difficulty”18. The strand of Zionism founded by Zangwill (the Jewish
Territorial Organization) also envisaged destinations other than Palestine for the reunification of
Jewish people.
32. Zionism was therefore to sit well with Great Britain’s interests in the Middle East and its
strategic interest in protecting the Suez canal, a vital line of communication with its possessions in
Asia. These circumstances led to the British Government engaging in doublespeak, the dire
consequences of which have been unfolding ever since.
33. Support for the Zionist project led Lord Balfour, the English Foreign Minister, to make a
declaration on 2 November 1917, in a letter to the Vice-President of the body representing Jewish
people in England. Its key passage reads as follows:
“His Majesty’s Government view with favour the establishment in Palestine of a
national home for the Jewish people, and will use their best endeavours to facilitate the
achievement of the object, it being clearly understood that nothing shall be done which
may prejudice the civil and religious rights of existing non-Jewish communities in
Palestine, or the rights and political status enjoyed by Jews in any other country”19.
34. That declaration related to territory over which, at the time its Minister was writing, Great
Britain held no legal title giving it powers of disposal. Nor did the declaration concern international
law in any way, since it was addressed to an ordinary British citizen, a private individual. Breaking
apart a community in which Christians, Muslims and Jews had until then lived peacefully, it
described the people who were the main occupants of that land (at the time Arabs represented 91 per
cent of the population) as “non-Jewish communities in Palestine” and specified that their civil and
religious rights should not be prejudiced, while making no mention of their political rights.
17 Théodor Herzl, Der Judenstaat, 1896; [Théodor Herzl and Claude Klein,] L’État des Juifs suivi de “Essai sur le
sionisme: de l’État des Juifs à l’État d’Israël”, Paris, La Découverte, 1990.
18 Quoted by Alain Gresh, Israël-Palestine, vérité sur un conflit, Paris, Fayard, 2002, p. 91 [Translation by the
Registry].
19 “The Balfour Declaration”, letter from Arthur James Balfour, United Kingdom Foreign Minister, to Lord
Rothschild, 2 November 1917.
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35. The promise made to the Zionist movement to establish a national home for the Jewish
people in Palestine was sufficiently ambiguous to hint at something that would be the germ of a
future State, while not being sufficiently clear that it fully illuminated the purpose behind the creation
of that State. The ambiguity was deliberate. It was intended to mask the nationalist intentions.
36. However, alongside this — and this is where Britain was playing both sides — England
was seeking the support of the Arabs in eliminating the Ottoman Empire. It would thus promise the
Sharif of Mecca, Hussein ibn Ali, the creation of a greater Arab State in return for his help. This is
clearly apparent from the correspondence between Sir Henry McMahon, the British High
Commissioner in Cairo, and Hussein between July 1915 and February 1916. In that correspondence,
Sir Henry confirmed that: “Great Britain [was] prepared to recognize and support the independence
of the Arabs in all the regions within the limits demanded by the Sherif of Mecca”20.
37. The British would interpret that correspondence as not including Palestine in the greater
Arab State that had been promised independence. However, the British press subsequently published
extracts of a secret memorandum drawn up by the Political Intelligence Department of the Foreign
Office for the British delegations to the Paris Peace Conference, which confirmed the undertaking
by His Majesty’s Government to recognize the independence of the whole of Palestine21.
38. Militarily, a first British offensive to gain a foothold against the Turkish in Palestine
initially ended in Gaza in March 1917, in a heavy defeat22. After victory against the Turkish forces,
however, General Allenby occupied Gaza and Haifa in October 1917 and entered Jerusalem on
11 December 1917, on foot out of respect for the Holy Places. He established British military
authority in Jerusalem. The concerns of Arab leaders, who were aware of the existence of the Balfour
Declaration, became increasingly apparent in the course of 1918. An Anglo-French joint
communiqué of 7 November 1918 was intended to allay those concerns. It contains a statement that
those Powers’ object was in fact: “the complete and definitive emancipation of the [Arab] peoples . . .
and the establishment of national governments and administrations deriving their authority from the
initiative and free choice of the indigenous populations”23.
39. However, when the Peace Conference opened on 18 January 1919, Great Britain,
forgetting the letters exchanged between its representative and Sharif Hussein ibn Ali and the
Anglo-French position stated two months previously, succeeded in having the Balfour Declaration
included in the Palestine question.
40. Disturbances broke out at the start of 1920, evidence of fierce reactions among the
Palestinians. Despite the increasingly widespread revolt, the interests of the Zionist movement and
those of Great Britain converged to the extent that on 25 April 1920 the San Remo Conference
20 Letter No. 4. Translation of a letter from McMahon to Husayn, 24 October 1915, The Hussein-McMahon
Correspondence, Jewish Virtual Library, American-Israeli Cooperative Enterprise (Ann. 5).
21 “The Origins and Evolution of the Palestine Problem 1917-1988”, a study prepared for, and under the guidance
of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People, New York, United Nations, 1990,
p. 7, quotations taken from The Times of London of 17 April 1974.
22 Henry Laurens, op. cit. [sic]. This writer mentions two battles resulting in a total of 10,000 British casualties.
23 The Anglo-French Declaration of 7 November 1918, 145 Parliamentary Debates H.C (5th Series) 36, 1921, in
John Norton Moore, The Arab-Israeli conflict, Vol. III, Documents, Princeton University Press, 1974, p. 38 (Ann. 6).
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appointed Great Britain as the Mandatory for Palestine. On 24 July 1922, the League of Nations
confirmed Great Britain’s Mandate for Palestine24. It incorporated the Balfour Declaration.
2. The period of the British Mandate (1922-1947)
41. The Mandate conferred on Great Britain by the League of Nations is part of the Mandate
system established in Article 22 of the Covenant of the League of Nations. Article 22, paragraph 4,
applies specifically to the territories that previously belonged to the Ottoman Empire:
“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.”
42. In order to analyse the difficulties arising from the application of the Mandate, we shall
describe first of all the ideological and political context in which the very idea of mandates
emerged (a). We shall then recall how the territorial boundaries of the Mandate for Palestine were
defined (b). Lastly, we shall show the increasing difficulties encountered by the London Government
up to the time when it handed the Mandate back to the United Nations (c).
(a) The ideological and political background to the creation of the League of Nations Mandates
43. When the League of Nations was created, the Powers that had been victorious in the First
World War were and would remain colonial Powers keen to share out among themselves the
territories confiscated from the defeated. However, ideas were also emerging about the emancipation
of dominated peoples. These were articulated notably by United States President Thomas W. Wilson
in a speech to the United States Senate as early as 27 May 1916, and were repeated at the Paris Peace
Conference: “The fundamental idea would be that the world was acting as trustee through a
mandatory and would be in charge of the whole administration until the day when the true wishes of
the inhabitants could be ascertained”25.
44. The famous Fourteen Points whereby the United States President laid down the conditions
for his country to go to war on the side of the Allies included those which would govern the Mandate
system26. President Wilson had summarized those points himself in a speech to Congress on
11 February 1918, stating that peoples and provinces should not be bartered about from sovereignty
to sovereignty as if they were mere chattels, with the sole concern being the balance of power, and
that every territorial settlement had to be made in the interest and for the benefit of the populations
concerned27. That position would result in the principle of nationalities being applied to the colonial
territories, planting the seed of the future right of peoples to self-determination.
45. The fact that the category A Mandate system took into consideration the wishes of the
populations concerned meant that the mandatory did not become the new holder of sovereignty.
24 League of Nations, Mandate for Palestine, 12 August 1922, C.529 M. 314 (Ann. 7).
25 Cited by Giovanni Distefano, in Commentaire sur le Pacte de la Société des Nations, Robert Kolb (ed.), Bruylant,
Université de Genève, 2015, p. 844.
26 President Woodrow Wilson’s 14 Points, National Archives, Milestone Documents, United States of America.
27 Giovanni Distefano, op. cit., p. 844.
- 12 -
Although the mandatory exercised sovereign powers, sovereignty itself was now reserved to the
countries under Mandate and could not under any circumstances be exercised by the mandatory28.
46. Running counter to that approach, the British proposed an Article 1 of the Mandate for
Palestine drafted as follows: “His Britannic Majesty shall have the right to exercise as Mandatory all
the powers inherent in the Government of a Sovereign State, save as they may be limited by the terms
of the present mandate”29. Great Britain was therefore intending to treat the powers it would hold
over the territory entrusted to it as sovereign powers. However, following opposition from other
delegations, any reference to sovereignty was removed from Article 1 of the British Mandate. It
refers merely to “full powers of legislation and of administration”.
47. The people of Palestine were not consulted on the grant of the Mandate to Great Britain,
even though, with regard to the political communities concerned, the League of Nations Covenant
provided that: “[t]he wishes of these communities must be a principal consideration in the selection
of the Mandatory”. Furthermore, while most of the speakers at the Peace Conference welcomed the
Mandate system, on 14 February [19]19 the delegate of the Kingdom of the Hedjaz, Mr Haidar,
expressed a significant caveat:
“I only wish to say that the nations in whose name I speak intend to remain free
to choose the Power whose advice they will ask. Their right to decide their fate in the
future has been recognized in principle. Very well! But you will allow me to say,
Gentlemen, that a secret agreement to dispose of these nations had been prepared about
which they have not been consulted”30.
48. The “King-Crane” Commission, so named for its participants, sent after the Peace
Conference held by the Allies, was informed of Arab opposition to the plans being drawn up on the
Palestine dossier. For Palestine, the Commission thus recommended:
“serious modification of the extreme Zionist programme for Palestine of unlimited
immigration of Jews, looking finally to making Palestine distinctly a Jewish State . . .
so the wishes of Palestine’s population are to be decisive as to what is to be done with
Palestine, then it is to be remembered that the non-Jewish population of Palestine —
nearly nine-tenths of the whole — are emphatically against the entire Zionist
programme. The tables show that there was no one thing upon which the population of
Palestine were more agreed than upon this. To subject a people so minded to unlimited
Jewish immigration, and to steady financial and social pressure to surrender the land,
would be a gross violation of the principle . . . of the peoples’ rights.”31
49. The findings of that Commission were not taken into consideration and the Balfour project
prevailed. The concerns of a number of British parliamentarians were expressed during debates on
28 See infra, para. 249.
29 Giovanni Distefano, op. cit., p. 897.
30 Ibid., p. 854.
31 Quoted in “The Origins and Evolution of the Palestine Problem 1917-1988”, a study prepared for, and under the
guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People, New York, United Nations,
1990, p. 2[8].
- 13 -
the Mandate for Palestine in the Houses of Parliament when Lord Sydenham responded to Lord
Balfour as follows32:
“[T]he harm done by dumping down an alien population upon an Arab country —
Arab all around in the hinterland — may never be remedied . . . what we have done is,
by concessions, not to the Jewish people but to a Zionist extreme section, to start a
running sore in the East, and no one can tell how far that sore will extend.”33
50. That sombre prediction began to come true during the period of the Mandate. And it had a
very real effect at the time the A Mandates came to an end. The peoples administered under Mandate
formally gained independence in the following years: Iraq obtained independence on 3 October 1944,
Lebanon on 22 November 1943, Syria on 1 January 1944 and Jordan on 22 March 1946. Only
Palestine was denied the right to independence.
51. The Mandate for Palestine allowed the Government of Great Britain to administer the
country directly. However, it had to address two major problems: the territorial definition of
Palestine, entailing the need to determine its precise boundaries; and how to administer the territory
given that it was impossible to reconcile, on the one hand, respect for its populations and, on the
other, application of the Balfour Declaration promoting the national home for the Jewish people
promised to the Zionist movement.
(b) The territorial boundaries of Mandatory Palestine
52. Devised with a view to unlimited Jewish immigration, the territorial ambitions of the
World Zionist Organization extended far beyond what would ultimately become the territory of
Mandatory Palestine. They spilled over into Syria, Lebanon, Transjordan and Egypt, thus:
“In the north, the northern and southern banks of the Litany River, as far north as
latitude 33° 45'. Thence in a south-easterly direction to a point just south of the
Damascus territory and close and west of the Hedjaz Railway.
 In the east, a line close to and west of the Hedjaz Railway.
 In the south, a line from a point in the neighbourhood of Akaba to El Arish.
 In the west, the Mediterranean Sea.”34
32 The House of Lords voted to revoke the Balfour Declaration. However, the House of Commons and the British
Government accepted the Mandate with the Declaration included.
33 Quoted in “The Origins and Evolution of the Palestine Problem 1917-1988”, a study prepared for, and under the
guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People, New York, United Nations,
1990, p. 3[2].
34 Ibid, pp. 32-3[4].
- 14 -
Map No. 1, The Palestine claimed by the World Zionist Organization, 1919, reproduced in “The Origins and Evolution
of the Palestine Problem 1917-1988”, a study prepared for, and under the guidance of, the Committee on the Exercise of
the Inalienable Rights of the Palestinian People, New York, United Nations, 1990, p. 100.
La “Palestine” revendiquée par l’Organisation
sioniste mondiale, 1919
The “Palestine” claimed by the World Zionist
Organization, 1919
Source: Alan R. Taylor, dans Abu-Lughod, The
Transformation of Palestine
Source: Alan R. Taylor, in Abu-Lughod, The
Transformation of Palestine
53. The boundaries of Palestine as established at the time of the Mandate delimited a smaller
territory:
- 15 -
Map No. 2, Mandatory Palestine, taken from Alain Gresh, Israël, Palestine, Vérités sur un conflit, Fayard, Paris, 2002,
middle section.
- 16 -
1923-1948: la Palestine sous mandat
britannique
1923-1948: Palestine under British Mandate
Mer Méditerranée Mediterranean Sea
Beyrouth Beirut
Mont Hermon Mount Hermon
Damas Damascus
Liban et Syrie (protectorat français) Lebanon and Syria (French protectorate)
Irak (protectorat britannique) Iraq (British protectorate)
Jénine Jenin
Naplouse Nablus
Jérusalem Jerusalem
Bethléem Bethlehem
Transjordanie Transjordan
Egypte Egypt
Akaba Aqaba
Arabie Saoudite (Hedjaz) Saudi Arabia (Hedjaz)
Mer Rouge Red Sea
Mandat britannique sur la Palestine (dont la
création du « Foyer national juif ») défini par la
Conférence de San Rémo en 1920
British Mandate for Palestine (including
creation of the “Jewish National Home”)
defined by the San Remo Conference in 1920
Zone séparée en 1921, fermée à la colonisation
juive, puis cédee à l’émir Abdallah
Area split off in 1921, closed to Jewish
settlement, then transferred to Emir Abdullah
Zone cédee au mandat français pour la Syrie en
1923
Area transferred to the French Mandate for
Syria in 1923
Limite approximative de la zone revendiquée
par les sionistes pour l’établissement de leur «
Foyer national »
Approximate boundary of the area claimed by
the Zionists for establishment of their “national
home”
- 17 -
54. The southern boundary between the Ottoman Empire and Egypt had been determined by
an exchange of Notes between Great Britain and the Ottoman Empire of 14 and 15 May 190635. It
began at Ras-Taba (10 miles south-west of Aqaba) and continued in a straight line until it reached
Rafah:
Map No. 3, The southern boundary of the Mandate for Palestine. Jean-Paul Chagnollaud and Sid-Ahmed Souiah,
Les frontières au Moyen-Orient, L’Harmattan, Paris, 2004, plate VIII.
35 Exchange of Notes of 14 and 15 May 1906 between Turkey and Great Britain concerning the maintenance of the
status quo in the Sinai Peninsular, in Heinrich Triepel, Nouveau Recueil général de traités, vol. V, Leipzig, Theodor
Weicher, 1923, pp. 880-882 (Ann. 8).
- 18 -
Carte no 20: Les frontières sud de la Palestine Map No. 20: The southern boundaries of
Palestine
Mer Méditerranée Mediterranean Sea
Mer Morte Dead Sea
Désert du Néguev Negev Desert
Péninsule du SINAÏ Sinai Peninsula
Golfe d’Aqaba Gulf of Aqaba
Golfe de Suez Gulf of Suez
Egypte Egypt
Mer Rouge Red Sea
Canal de Suez Suez Canal
Tracé frontalier du firman impérial de 1841
(limite entre le Hedjaz et l’Egypte)
Boundary line under the 1841 imperial firman
(boundary between the Hedjaz and Egypt)
Tracé frontalier du firman impérial de 1841
(limite entre le Hedjaz et la Palestine)
Boundary line under the 1841 imperial firman
(boundary between the Hedjaz and Palestine)
Frontière de 1906 1906 boundary
Frontière avec la Transjordanie (1922) Boundary with Transjordan (1922)
55. The northern boundary was established by a convention with France because it involved
establishing the delimitation between the French Mandates over Syria and Lebanon and the British
Mandates over Palestine and Mesopotamia36. Doing so was not without difficulty because under the
leadership of General Allenby the English had pushed further forward than had been agreed in the
Sykes-Picot Agreements:
36 Convention between France and Great Britain of 23 December 1920 concerning the Mandates over Palestine,
Mesopotamia, Syria and Lebanon, in Heinrich Triepel, Nouveau Recueil général des traités, vol. V, Leipzig, Librairie
Theodor Weicher, 1923, pp. 582-586 (Ann. 9a).
Exchange of Notes between France and Great Britain of 7 March 1923 for the purpose of ratifying the report of the
commission appointed to fix the route of the border between Lebanon and Syria, of the one part, and Palestine, of the other,
from the Mediterranean to El Hammé, in Heinrich Triepel, Nouveau Recueil général des traités, vol. XVII, Leipzig,
Librairie Theodor Weicher, 1927, pp. 208-215 (Ann. 9b).
- 19 -
Map No. 4, The northern boundary of Mandatory Palestine. Jean-Paul Chagnollaud and Sid-Ahmed Souiah,
Les frontières au Moyen-Orient, L’Harmattan, Paris, 2004, plate IX.
Carte no 21: Les frontières nord de la Palestine
(1916-1923-1949)
Map No. 21: The northern boundaries of
Palestine (1916-1923-1949)
Mont Hermon Mount Hermon
SYRIE sous mandat Français SYRIA under French Mandate
LIBAN sous mandat Français LEBANON under French Mandate
Lac Houleh Lake Hula
Jourdain Jordan
Le Golan The Golan
TIBERIADE TIBERIUS
Lac de Tibériade Lake Tiberius
- 20 -
PALESTINE sous mandat Britannique PALESTINE under British Mandate
TRANSJORDANIE (G.B.) TRANSJORDAN (G.B.)
Yarmouk Yarmuk
Frontière internationale 1923 1923 international boundary
Accords Sykes-Picot 1916 Sykes-Picot Agreements 1916
Limite revendiquée par les organisations
sionistes
Boundary claimed by the Zionist organizations
Ligne de partage des eaux Watershed line
Axes routiers Principal roads
Zone Nord de la Palestine relevant de OTEANord
Northern area of Palestine forming part of
OETA North
Zones démilitarisées en 1949 Areas demilitarized in 1949
For the Zionist movement the stakes were very high on account of water resources. The British in
fact attempted to obtain even more, but the French would not give in to all their demands, thereby
provoking the anger of the Zionists who put ever greater pressure on both the British and French37.
56. The eastern boundary, dividing Palestine from what was then called Transjordan, separated
the two territories with the agreement of the British, who were reluctant to see the ambitions of the
Zionist movement expand on both banks of the Jordan. Accordingly, notwithstanding the vehement
protests of the latter, the boundary thus fixed followed the Jordan, crossed the Dead Sea at its
midpoint and then ran alongside the Wadi Araba as far as the Gulf of Aqaba. It was approved by the
Council of the League of Nations on 16 September 1922.
57. With the Mediterranean as its western boundary, Palestine was thus delimited and
according to the emancipatory approach of the League of Nations should have become independent
to the benefit of the Arab people, who represented the vast majority within those territorial
boundaries. It was against this background that the long crisis that epitomized the British
administration until 1947 emerged.
(c) Chaotic management of a Mandate epitomized by insurmountable ambiguities
58. The British authorities were alerted to the true ambitions of the Zionist movement even
before they started to administer the Mandate. Thus, in the wake of the Zionist Commission sent to
Palestine in April 1918 and its proposals to the Foreign Office, Lord Curzon, the Foreign Secretary,
wrote as follows to Balfour, commenting on the Commission’s proposals:
“As for Weizmann and Palestine, I entertain no doubt that he is out for a Jewish
Government, if not at the moment then in the near future . . . I feel tolerably sure therefor
37 See in that respect, Jean-Paul Chagnollaud and Sid-Ahmed Souiah, op. cit., p. 89.
- 21 -
that while Weizmann may say one thing to you, or while you may mean one thing by a
national home, he is out for something quite different. He contemplates a Jewish State,
a Jewish nation, a subordinate population of Arabs, etc. ruled by Jews; the Jews in
possession of the fat of the land, and directing the Administration. He is trying to effect
this behind the screen and under the shelter of British trusteeship. I do not envy those
who wield the latter, when they realize the pressure to which they are certain to be
exposed.”38
59. Those Zionist ambitions found expression in a drive to settle Jewish people in Palestine,
aimed at reaching a demographic tipping point at the expense of the Arab population; in a policy of
systematically appropriating Arab land; and in preventing any possibility of protecting the rights of
the Arab population and bringing it towards self-governing institutions, despite those obligations
being affirmed in the Covenant of the League of Nations.
The surge in Jewish immigration to Palestine during the period of the Mandate
60. In keeping with its support for the Balfour Declaration, at the beginning of the Mandate
the Government of Great Britain was favourable to Jewish immigration at levels likely to tip the
demographic balance of Palestine. However, as the result of mounting disturbances due to protests
by the Arab population, the Mandatory made several ineffectual attempts to restrict that immigration.
61. The Churchill Memorandum of 1 July 1922 set out the British policy on the matter:
“The Balfour Declaration, reaffirmed by the Conference of the Principal Allied
Powers at San Remo and again in the Treaty of Sèvres, is not susceptible of change . . .
in order that this [Jewish] community should have the best prospect of free development
and provide a full opportunity for the Jewish people to display its capacities, it is
essential that it should know that it is in Palestine as of right and not on sufferance. That
is the reason why it is necessary that the existence of a Jewish national home in Palestine
should be internationally guaranteed, and that it should be formally recognized to rest
upon ancient historic connection . . . For the fulfilment of this policy it is necessary that
the Jewish community in Palestine should be able to increase its numbers by
immigration. This immigration cannot be so great in volume as to exceed whatever may
be the economic capacity of the country at the time to absorb new arrivals.”39
Upholding Zionist ideology, that Memorandum gave substance to the notion of Jewish “rights” over
Palestine and justified them on the basis of “ancient historic connection”. In doing so it contradicted
the emerging international law on the right of peoples to self-determination, which applied to peoples
as they had been colonized with no reference to their, moreover largely undocumented, past history.
62. A British White Paper of 1922 reiterated the notion that immigration should be encouraged,
albeit controlled according to Palestine’s capacities for economic absorption. Zionist circles
nevertheless continued to press for unlimited immigration. In practice, immigration continued at a
brisk pace until 1924-1926 but then fell appreciably:
38 Quoted in “The Origins and Evolution of the Palestine Problem 1917-1988”, a study prepared for, and under the
guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People, New York, United Nations,
1990, p. 2[5].
39 Churchill Memorandum, 1 July 1922, quoted in “The Origins and Evolution of the Palestine Problem
1917-1988”, a study prepared for, and under the guidance of, the Committee on the Exercise of the Inalienable Rights of
the Palestinian People, New York, United Nations, 1990, p. 3[9].
- 22 -
Table No. 1, Immigration into Palestine 1920-1929, Palestine Royal Commission Report, published in “The Origins
and Evolution of the Palestine Problem 1917-1988”, a study prepared for, and under the guidance of, the Committee
on the Exercise of the Inalienable Rights of the Palestinian People, New York, United Nations, 1990, p. 39.
Immigration en Palestine de 1920 à 1929 Immigration into Palestine 1920 to 1929
Immigration enregistrée Recorded immigration
Année Year
Juifs Jewish immigrants
Non-juifs Non-Jewish immigrants
(septembre-octobre) (September-October)
Some 100,000 Jewish people nevertheless arrived in Palestine during that decade, thereby increasing
their proportion in the population from 10 per cent to more than 17 per cent. Under pressure from
the Zionist movement, British leaders fluctuated between regulating and encouraging the surge in
Jewish settlement.
63. Jewish immigration resumed in the 1930s, especially after Hitler came to power in
Germany. Many Jewish people preferred to flee to the United States or to elsewhere than Palestine,
but ultimately it was, paradoxically, the Nazis who drove them to set off for Palestine. Through
negotiations conducted by the Jewish Agency, the Nazis promised Jewish people who were prepared
to emigrate to Palestine that they could transfer some of their capital to that country40. Jewish
immigration would therefore resume rather intensely during the 1930s:
40 See Henry Laurens, “Nouveaux regards sur la Palestine”, Revue d’Études palestiniennes, No. 104, 2004, p. 15.
- 23 -
Table No. 2, Immigration into Palestine 1930-1939. “The Origins and Evolution of the Palestine Problem 1917-1988”,
a study prepared for, and under the guidance of, the Committee on the Exercise of the Inalienable Rights
of the Palestinian People, New York, United Nations, 1990, p. 44.
Immigration en Palestine de 1930 à 1939 Immigration into Palestine 1930 to 1939
64. In 1930, seeking to assuage heightening tensions, the British Government published a new
White Paper known as the Passfield White Paper after its author. It sought to be conciliatory towards
the Arab population and announced its intention to reassert control over the issues of immigration
and land transfers, which had thus far been left to the decisions of the Jewish Agency. However, in
the face of very strong criticism from the Zionist Organization and its supporters, the Prime Minister
of the London Government, Lord MacDonald, sent a letter to the President of the Zionist
Organization in which he repudiated the Passfield White Paper and renounced any restriction on
Jewish immigration and land transfers.
65. In his book Trial and Error (New York, Harper, 1949) Chaim Weizmann, President of the
Zionist Organization, rejoiced that: “[i]t was under MacDonald’s letter that Jewish immigration into
- 24 -
Palestine was permitted to reach figures like 40,000 for 1934 and [6]2,000 for 1935, figures
undreamed of in 1930”41.
66. Great Britain tried again to limit Jewish immigration, by means of a new White Paper of
17 May 193942. It read:
“Jewish immigration during the next five years will be at a rate which, if
economic absorptive capacity permits, will bring the Jewish population up to
approximately one third of the total population of the country. Taking into account the
expected natural increase of the Arab and Jewish populations, and the number of illegal
Jewish immigrants now in the country, this would allow of the admission, as from the
beginning of April this year, of some 75,000 immigrants over the next five years . . .
After the period of five years, no further Jewish immigration will be permitted unless
the Arabs of Palestine are prepared to acquiesce in it.”43
67. The most extremist Zionists and the militias they had formed then carried out armed actions
against the British. The Stern Group organized a series of attacks against English troops in Palestine.
The Irgun in turn became engaged in terrorism. Jewish immigration would nevertheless continue all
the more as the world was discovering the phenomenon that was the extermination of Jewish people
by the Nazis. It would now be in the form of illegal immigration that was impossible for the British
Mandatory to control. In 1944, Jewish people represented 32.6 per cent of the population of Palestine.
Jewish migratory pressure was to continue in the following years.
A policy of systematic appropriation of Arab land
68. Encouraging Jewish people to emigrate to Palestine presupposed that the new immigrants
would have access to land ownership. To promote the rapid advance of Zionism, property transfers
favourable to the Yishuv (the name given to the body of Jewish settlers as a whole before Israel came
into being) had been organized even before the British Mandate. Under the auspices of the Jewish
Agency, a number of organizations financed by the Jewish National Fund had launched schemes for
the systematic purchase of land for settlers. Those land purchases supported both private agriculture
and collective structures, whether co-operative (moshavim) or collectivist (kibbutzim).
69. As early as 1919, the King-Crane Commission expressed concern about the Zionist project
to transform Palestine at the expense of the Arab populations by means of land ownership: “The fact
came out repeatedly in the Commission’s conference with Jewish representatives, that the Zionists
looked forward to a practically complete dispossession of the present non-Jewish inhabitants of
Palestine, by various forms of purchase”44.
41 Quoted in “The Origins and Evolution of the Palestine Problem 1917-1988”, a study prepared for, and under the
guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People, New York, United Nations,
1990, p. 4[5].
42 Government of Great Britain, White Paper: Palestine Statement of Policy, 23 May 1939. Full text. (Ann. 10).
43 See Ann. 10, p. 14.
44 Quoted in “The Origins and Evolution of the Palestine Problem 1917-1988”, a study prepared for, and under the
guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People, New York, United Nations,
1990, p. [40], citing, The Political History of Palestine under the British Administration (Memorandum to the United
Nations Special Committee on Palestine), British Government, Jerusalem, 1947, p. 3.
- 25 -
70. Jewish settlers were able to take advantage of the destabilization of Arab society caused
by the boundaries established in 1920, which separated Palestine from Syria and Lebanon, and the
effects it had on the land issue. Arab families that had settled in a number of those territories chose
to group together and therefore sold their lands, which Jewish people bought up from absent
owners45. In that way, between 1920 and 1929, the area of land owned by Jewish people doubled,
increasing from approximately 2.5 per cent to 5 per cent of the total area of Palestine. That area
increased by a further 50 per cent between 1929 and 1945:
Table No. 3, “Growth of legally registered Jewish property, excluding government land concessions”,
in Henry Laurens, La question de Palestine, Tome deuxième, 1922-1947, Une mission sacrée de civilisation,
Paris, Fayard, 2002, pp. 133-134.
Croissance de la propriété juive enregistrée
légalement, concessions de terres
gouvernementales exclues
Growth in legally registered Jewish property,
excluding government land concessions
Années Augmentation Cumul Year Increase Total
Ces données viennent des institutions sionistes,
elles diffèrent légèrement de celles des
These data come from the Zionist institutions.
They differ slightly from those of the
45 For a detailed analysis of land transfers, see Henry Laurens, La question de Palestine, Tome deuxième,
1922-1947, Une mission sacrée de civilisation, Paris, Fayard, 2002, pp. 143-149.
- 26 -
statisticiens du gouvernement mandataire, en
particulier pour les dates de transfert
statisticians of the Mandate government, in
particular as regards the transfer dates
71. The land purchase policy conducted by the Zionist organizations was accompanied by
race-based restrictions on the farming of land. Jewish people could not employ Arab labour or sell
their property to Arab purchasers. Although contrary to the terms of the British Mandate (according
to which Jewish immigration was not to prejudice the rights of the inhabitants of Palestine), those
provisions were applied strictly by Jewish farmers.
72. In 1923, a commission chaired by Sir John Hope Simpson was charged with investigating
questions of immigration and land transfers. Its report describes the terms on which Jewish people
could purchase and farm land:
“Land is to be acquired as Jewish property and . . . the same shall be held as the
inalienable property of the Jewish people . . . The Agency shall promote agricultural
colonization based on Jewish labour . . . it shall be deemed to be a matter of principle
that Jewish labour shall be employed . . .” (Constitution of the Jewish Agency).
And: “The lessee undertakes to execute all works connected with the cultivation of the holding only
with Jewish labour. Failure to comply with this duty by the employment of non-Jewish labour shall
render the lessee liable to the payment of compensation”. The lease also provides that “the holding
shall never be held by any but a Jew” (Keren Kayemet draft lease)46.
73. The same commission noted that those measures were contrary to the very terms of the
Mandate: “The principle of the persistent and deliberate boycott of Arab labour in the Zionist
colonies is not only contrary to the provisions of [Article 6] of the Mandate, but it is in addition a
constant and increasing source of danger to the country.”47 The lack of any opposition from the
Mandatory enabled the process to continue unimpeded.
The worsening political crisis, rising violence in Palestine and the withdrawal of the
British Mandate
74. At the end of the First World War, when the Allies were debating the fate of the territories
that had been subject to the Ottoman Empire and the plan to establish a national home for the Jewish
people in Palestine was emerging, the Arab population understood that its right to self-determination
was jeopardized by the Balfour Declaration. The first demonstrations against that plan took place in
April 1920. There were further demonstrations in May 1920, in particular in Jaffa.
75. The Western Wall had been the subject of tensions between Arab and Jewish people since
the Zionist attempt to acquire it in 1918. In 1926, the Zionists were calling for the expropriation of
buildings in the Maghrabi Quarter and certain practices of the Jewish celebrants aroused fears that
they were going to appropriate the Wall. The British Government had to allay the concerns of the
Arab population by confirming that it would uphold the status quo on the matter.
46 Quoted in “The Origins and Evolution of the Palestine Problem 1917-1988”, a study prepared for, and under the
guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People, New York, United Nations,
1990, p. 4[2].
47 Ibid., p. 4[3].
- 27 -
76. Violence erupted again in August 1929. It left 220 dead and 520 injured in Jerusalem. The
British authorities had to call on outside military reinforcements in order to bring the situation under
control.
77. At its session in Geneva from 6 to 26 November [19]29, the Permanent Mandates
Commission was concerned at the disturbances in Palestine. Arab non-acceptance of the terms of the
Mandate and calls for institutions of self-government placed the British in a very weak position. The
Jewish Agency was worried that Palestine was perceived as overpopulated and that the unrest was
being attributed to the fact that the land ownership policy favouring Jewish people had created a
category of the Arab population with no access to land. It regarded Transjordan as a reserve of land
and referred to the possibility of a “transfer” of part of the Arab population48.
78. The Arab population understood that the creation of a Jewish State at the expense of their
access to independence was inevitable. Fresh violence directed against the mandatory Power broke
out in 1933, in particular in Jerusalem and Jaffa.
79. A widespread uprising broke out in 1936. Successive strikes, attacks against both English
and Jewish targets and acts of sabotage against roads, railways, telephone and telegraph lines and oil
pipelines continued until 193949. The Palestinian political parties, united in an Arab Higher
Committee, called for the setting up of a national government. The British authorities responded with
severe repression, enlisting 20,000 members of the Jewish population in an auxiliary police force
against the rebels and placing the whole of Palestine under military control. The human cost was
nevertheless very high, with a toll of 3,717 casualties for 193850.
80. The Royal Commission set up subsequently, known as the Peel Commission, noted the
fundamental contradiction that had undermined the Mandate for Palestine. It recognized that a policy
of attempting to implement the terms of the Mandate by force “[led] nowhere”. “The establishment
of a single self-governing Palestine will remain just as impracticable as it is now. It is not easy to
pursue the dark path of repression without seeing daylight at the end of it.”51
81. In 1937 (as the rebellion raged), the British Government published a new White Paper
advocating the solution of partition, the last chance for a peaceful solution. The proposal was rejected
by both the peoples concerned. The Arab people stood by the right of the Palestinians to full
independence in the whole of Palestine. The Congress of the Zionist Organization, held in Zurich in
August 1937, opposed the proposition, its majority remaining in favour of a Jewish State in all the
territory of Palestine. The positions were fundamentally irreconcilable.
48 Henry Laurens, La question de Palestine, Tome deuxième, 1922-1947, Une mission sacrée de civilisation, Paris,
Fayard, 2002, p. 199.
49 La question de Palestine, New York, United Nations, 1979, p. 13.
50 “The Origins and Evolution of the Palestine Problem 1917-1988”, a study prepared for, and under the guidance
of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People, New York, United Nations, 1990,
p. 51, based on [Great Britain and Palestine, Royal Institute of International Affairs (R.I.I.A., Chatham House)], London,
1946, pp. 116-118.
51 Palestine Royal Commission Report, British Government, 1937, pp. 41-42, quoted in “The Origins and Evolution
of the Palestine Problem 1917-1988”, a study prepared for, and under the guidance of, the Committee on the Exercise of
the Inalienable Rights of the Palestinian People, New York, United Nations, 1990, p. 55.
- 28 -
82. The repression intensified. Arab villages were searched and the houses of their inhabitants
ransacked. Special night squads made up of British soldiers and Haganah volunteers murdered Arab
political leaders52. The Irgun entered the vicious cycle of reprisals. Anti-British popular sentiment
grew in the Arab countries.
83. The Government of Great Britain then embarked on various initiatives to resolve the
situation in which it found itself, all of which were unsuccessful. It entrusted a technical commission
with examining other partition formulas. However, a resurgence of violence forced it to recognize
that this solution was impossible. The protagonists were then invited to round-table discussions in
London which produced no result.
84. In the White Paper of May 1939 (by means of which, as has been seen, an overdue attempt
was made to limit Jewish immigration into Palestine) the London Government put forward a novel
proposal, one of a two-nation State in which power would be shared between both communities:
“The objective of His Majesty’s Government is the establishment within 10 years
of an independent Palestine State in such treaty relations with the United Kingdom as
will provide satisfactorily for the commercial and strategic requirements of both
countries in the future. The proposal for the establishment of the independent State
would involve consultation with the Council of the League of Nations with a view to
the termination of the Mandate.
The independent State should be one in which Arabs and Jews share government
in such a way as to ensure that the essential interests of each community are
safeguarded.”53
That proposal was no more palatable than the others to either party, Jewish or Arab.
85. With the start of the Second World War and the Nazi policy aimed at exterminating the
Jewish population of Europe, illegal Jewish immigration increased. Extremist Jewish groups
emerged and on 22 July 1946 an attack on the King David Hotel, headquarters of the British
authorities, left some one hundred dead. On 18 February 1947, having reached a total impasse, Great
Britain announced:
“we have decided that we are unable to accept the scheme put forward either by the
Arabs or by the Jews, or to impose ourselves a solution of our own. We have, therefore,
reached the conclusion that the only course now open to us is to submit the problem to
the judgement of the United Nations”54.
3. Intervention by the United Nations, resolution 181 (1947) and what followed
86. In February 1947, when the British Government renounced its obligations as Mandatory
for Palestine, the United Nations inherited one of the most incendiary issues of the post-war period.
With the situation on the ground more serious every day, a special session of the United Nations
General Assembly examined questions concerning “the future government of Palestine”. The Arab
delegations requested that the agenda include an item entitled “[t]he termination of the mandate over
52 Henry Laurens, op. cit., p. 390.
53 See Ann. 10, p. 8.
54 La question de Palestine, New York, United Nations, 1979, p. 17.
- 29 -
Palestine and the declaration of its independence”. However, the General Assembly decided instead
to hear the representatives of the Jewish Agency and the Arab Higher Committee.
87. A United Nations Special Committee on Palestine (UNSCOP) having been tasked with
making recommendations on the future government of Palestine, it was necessary to determine its
composition and objectives. The confrontational dynamic that had developed during the years of the
British Mandate was now reproduced in the discussions.
88. The delegate of the Jewish Agency (a non-governmental organization that had been
allowed to participate in the deliberations of the United Nations) insisted that Jewish immigration
into Palestine should be unlimited. However, because the Agency linked the question of Jewish
people in Europe and what was to become of them with the question of the future of Palestine, it was
challenged by numerous delegations. The Syrian delegation recalled that the question of Palestine
was entirely independent of that of the people suffering ill-treatment in Europe and seeking refuge
elsewhere. The question of the fate of the Jewish people of Europe nevertheless remained at the heart
of the Commission’s concerns55. After carrying out investigations in Palestine, the Commission went
to the refugee camps in Germany and Austria where it noted the refugees’ immense desire to reach
Palestine.
89. The Arab delegations, for their part, sought (unsuccessfully) to have a reference to the
question of establishing “the independent democratic State of Palestine” included in UNSCOP’s
terms of reference. The Arab Higher Committee then refused to appear before UNSCOP when the
Commission went to Palestine in mid-June 1947.
90. Faced with the dire situation left by the Mandate authorities, the Commission observed:
“With regard to the principle of self-determination, although international
recognition was extended to this principle at the end of the First World War and it was
adhered to with regard to the other Arab territories, at the time of the creation of the ‘A’
Mandates, it was not applied to Palestine, obviously because of the intention to make
possible the creation of the Jewish National Home there. Actually, it may well be said
that the Jewish National Home and the sui generis Mandate for Palestine run counter to
that principle.”
91. On the strength of that finding, UNSCOP was unanimous in recommending that the British
Mandate should be brought to an end. Albeit hesitantly, the majority came round to the idea of
partition. The next question discussed was whether the General Assembly had legal competence to
partition Palestine. It was even proposed to seise the International Court of Justice on the matter but
that proposal was rejected by one vote. That question therefore remained unanswered. During the
debate in the General Assembly, the States opposed to partition asserted that it violated the right to
self-determination by denying that right to the Palestinian people, and that it also infringed Article 6
of the Mandate which guaranteed that the rights and position of other, non-Jewish, sections of the
population would not be prejudiced.
92. The proposal of the ad hoc Commission then needed to be the subject-matter of a General
Assembly resolution requiring a two-thirds majority. That vote was the occasion for intense
55 Official Records of the General Assembly, second session, Special Committee On Palestine, vol. I, 1947,
pp. 54-55 (Ann. 11).
- 30 -
negotiations and bargaining56. Resolution 181 (II) of 29 November 1947 was adopted by 33 votes to
13, with 10 abstentions57.
Map No. 5, Plan for the partition of Palestine proposed by the United Nations in Quel État pour la Palestine?, Raphaël
Porteilla, Jacques Fontaine, Philippe Icard and André Larceneux (eds.), L’Harmattan, Paris, 2011, middle section, fig. 8.
Figure 8 - Le plan de partage de la Palestine
proposé par L’ONU (Résolution No 181 du
29.11.1947)
Figure 8 - Plan for the partition of Palestine
proposed by the United Nations
(resolution 181 of 29.11.1947)
56 For details of those negotiations and the pressure exerted on certain delegations, see Henry Laurens, La question
de Palestine, Tome deuxième, 1922-1947, Une mission sacrée de civilisation, Paris, Fayard, 2002, pp. 600-603.
57 United Nations General Assembly, resolution 181 (II) of 29 November 1947 (Ann. 12).
- 31 -
Mer Méditerranée Mediterranean Sea
LIBAN LEBANON
SYRIE SYRIA
TRANSJORDANIE TRANSJORDAN
ÉGYPTE EGYPT
Jénine Jenin
Naplouse Nablus
Bethléem Bethlehem
Tibériade Tiberius
Lac de Tibériade Lake Tiberius
Jourdain Jordan
Mer Morte Dead Sea
Villages palestiniens Palestinian villages
Colonies israéliennes Israeli settlements
Zone bâti israélienne Israeli built-up area
Zone bâti palestinienne Palestinian built-up area
Limite de la ville en 1947 Boundary of the city in 1947
Chef-lieu de district District administrative centre
Autre ville Other town or city
État arabe proposé (11 338 km2, soit 42% de la
superficie de la Palestine)
Proposed Arab State (11,338 sq km, i.e. 42%
of the area of Palestine)
État juif proposé (15 460 km2, soit 57% de la
superficie de la Palestine)
Proposed Jewish State (15,460 sq km, i.e. 57%
of the area of Palestine)
Corpus Separatum proposé (186 km2, soit 1% de
la superficie de la Palestine)
Proposed corpus separatum (186 sq km, i.e.
1% of the area of Palestine)
93. By that resolution, the General Assembly recommended to the United Kingdom as
mandatory Power for Palestine, and to all the other Member States of the United Nations, the
adoption and implementation of a plan of partition with economic union. Palestine was to be divided
into a Jewish State and an Arab State, with Jerusalem established as a corpus separatum. The Jewish
State would cover 14,100 sq km and included eastern Galilee, the coastal strip from Acre to Isdud,
and the Negev. The Arab State comprised 11,500 sq km and encompassed western Galilee, Samaria
and the coastal strip in the Gaza region. The underlying rationale of the partition was that the Jewish
- 32 -
State should contain the largest possible number of Jewish people while the number of them
remaining in the Arab State should be reduced to a minimum (some 10,000). In view of the
demographic situation on the ground, however, a very large number of Palestinian Arabs would
remain in the Jewish State (a figure put at 407,000)58.
94. Jerusalem was placed under a special international régime. Liberty of access was
guaranteed to the Holy Places. The administration of the city, which included the city itself and a
number of neighbouring villages and towns, was entrusted to the United Nations Trusteeship Council
for 10 years. According to the terms of resolution 181:
“After the expiration of this period the whole scheme shall be subject to reexamination
by the Trusteeship Council in the light of the experience acquired with its
functioning. The residents of the City shall be then free to express by means of a
referendum their wishes as to possible modifications of the regime of the City.”
95. The United Kingdom was to withdraw by 1 August 1948, although it would make available
to the Jewish State by 1 February 1948 an area including a seaport to facilitate “substantial
immigration”.
96. The Security Council was asked to implement the plan of partition and the “inhabitants”
of Palestine to take steps to put it into effect. Resolution 181 also included measures safeguarding
minority rights.
97. The Arab States and several other States declared that they did not consider themselves
bound by the General Assembly’s recommendation because it was contrary to the Charter itself. The
Arab Higher Committee called for a general strike in protest against the proposal. The Zionist
Organization, for its part, accepted the recommendation, seeing in it a means of moving towards its
objective. In Palestine, however, Zionist paramilitary forces stepped up their actions against the
waning mandatory Power. Losing all control, Great Britain set its withdrawal for 15 May 1948,
several months before the date envisaged by the General Assembly.
98. As the British troops were organizing their withdrawal, the Zionist military forces
increased their attacks against military installations and seized British weapons. They established
control not only over the part of Palestine attributed to the Jewish State by resolution 181, but further
afield.
99. The situation prevented the Security Council, which the General Assembly had explicitly
requested to implement the plan of partition, from taking effective decisions. On 5 March 1948, in
light of the evolving situation on the ground, resolution 42 resolved:
“to call on the permanent members of the Council to consult and to inform the Security
Council regarding the situation with respect to Palestine and to make, as the result of
such consultations, recommendations to it regarding the guidance and instructions
which the Council might usefully give to the Palestine Commission with a view to
implementing the resolution of the General Assembly. The Security Council requests
58 “The Origins and Evolution of the Palestine Problem 1917-1988”, a study prepared for, and under the guidance
of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People, New York, United Nations, 1990,
p. 125.
- 33 -
the permanent members to report to it on the results of their consultations within ten
days”59.
The terms used at the time illustrate how powerless the United Nations found itself.
100. On 14 May 1948 the last British forces were preparing to leave Palestine and the
following day, 15 May, Israel declared its independence. Here was the embodiment of the whole of
Zionist ideology. The coming into being of the State of Israel was seen as “the right of the Jewish
people to national rebirth in its own country”60. The Arabs of Palestine who had been there for
centuries were mentioned only as being indebted to Israel, since the Jewish people arriving as settlers
in Palestine were described as “bringing the blessings of progress to all the country’s inhabitants”61.
Violence then intensified on both sides. The first Arab-Israeli war was becoming inevitable.
4. The 1948-1949 Arab-Israeli war and its consequences
101. On 4 April 1948, as the British forces were withdrawing, the Haganah, which on 6 March
had already called for a general mobilization, launched “Plan Dalet”, named after the code name for
the strategy devised by the Haganah’s general staff for the conduct of operations to conquer the
territory assigned to the Palestinian State62. The Haganah, the military wing of the Zionist movement
that had incorporated other, now dissolved, partisan militias (the Irgun, the Stern and the Palmach),
had 350,000 adult men, of whom 2,200 were in the Palmach shock battalions, plus the 9,500 members
of the Gadna youth battalions63. They would carry out 13 offensives to conquer territory, opposed
unsuccessfully by 2,000 to 3,000 Palestinian combatants. The openly stated aim was now to expel
the maximum number of Palestinian Arabs, by force if necessary, not only from the areas proposed
for the Jewish State but from certain parts that were reserved for an Arab State but coveted by Jewish
Palestinians. A number of massacres (the best-known of which is the Deir Yasin massacre of 9 April
1948) therefore took place before the British withdrawal64.
102. Against that background, the day after Israel’s Declaration of Independence, the armies
of six Arab States intervened in Palestine. Let us now take stock of the outcome of that armed
intervention (a), measure its consequences on the ground for Arab Palestine (b), and analyse the
powerlessness of the United Nations to ensure application of the principles of the Charter to the
situation (c).
(a) Military operations between the Arab countries and Israel and their territorial consequences
103. The crushing of the Palestinians in the last days of the Mandate and the seizure by the
Jewish armies of large portions of the territory that the United Nations partition plan had reserved
for the Palestinian State led to intervention by the Arab armies under a decision of the Political
59 United Nations Security Council, resolution 42 (1948) of 5 March 1948.
60 Declaration of Independance [sic], 14 May 1948, translation, Provisional Government of Israel, Official Gazette:
Number 1, p. 1 (Ann. 13).
61 Ibid., third para.
62 Plan Dalet, 10 March 1948, translation, in “Plan Dalet: Master Plan for the Conquest of Palestine”, Walid Khalidi,
Journal of Palestine Studies, 1988, Vol. 18, No. 1, p. 21 (Ann. 14).
63 Benny Morris, The Birth of the Palestinian Refugee Problem, 1947-1949, Cambridge, Cambridge University
Press, 1987, pp. 21-22.
64 Jacques de Reynier (delegate for Palestine of the International Committee of the Red Cross), 1948 à Jérusalem,
Neuchâtel, Switzerland, Éditions de la Baconnière, pp. 69-78 (Ann. 15).
- 34 -
Committee of the League of Arab States, an organization founded in 1945. The intervention was
announced to the Secretary-General of the United Nations in the following terms:
“The Governments of the Arab States hereby confirm at this stage the view that
had been repeatedly declared by them on previous occasions, . . . the only fair and just
solution to the problem of Palestine is the creation of United State of Palestine [sic]
based upon the democratic principles which will enable all its inhabitants to enjoy
equality before the law, and which would guarantee to all minorities the safeguards
provided for in all democratic constitutional States affording at the same time full
protection and free access to Holy places.”65
104. Fighting raged for several weeks. Although initially the Israeli forces appeared to be on
the defensive their situation would improve fairly rapidly, reinforced by new immigrants and a flow
of arms from both West and East thanks to an air bridge from the Czech base of Žatec66. In June
1948, the Security Council procured acceptance of a four-week truce, and then ordered a ceasefire
on 15 July 194867. In October, the Israeli army broke the ceasefire and attacked the Negev. On
16 November, the Security Council resolved that an armistice should be concluded in all sectors of
Palestine. On 29 November 1948, Israel and Transjordan concluded a ceasefire in Jerusalem,
approving the division of the city one year to the day after the United Nations had recommended it
be internationalized68. By 24 January 1949, the West Bank and East Jerusalem were under the
administration of Transjordan. Between November 1948 and March 1949, all the States concerned
accepted the principle of the armistice. On 24 January 1949, Israel signed an agreement to suspend
hostilities with Egypt, after an Israeli offensive in the Negev, and a further agreement with
Transjordan on 11 March 1949, after a lightening offensive by the Israelis on the port of Eilat.
105. Armistice agreements would then be negotiated in Rhodes brokered by R. Bunche, the
United Nations mediator. Agreements were signed with Egypt on 24 February 194969, Lebanon on
23 March, Transjordan on 3 April and Syria on 20 July. Ratifying Israel’s territorial gains, those
agreements fixed demarcation lines that bore no relation to the borders envisaged by the partition
plan. However, each agreement stated that its provisions would in no way prejudice the rights, claims
and positions of either party in the ultimate peaceful settlement of the Palestine question.
65 Document published in Irène Errera-Hoechstetter, Le conflit israélo-arabe, PUF, 1974, p. 25.
66 See Dominique Vidal, Le péché originel d’Israël, L’expulsion des Palestiniens revisitée par les « nouveaux
historiens » israéliens , Paris, Les Éditions de l’Atelier, 2002, p. 59.
67 Security Council resolution 54, 15 July 1948.
68 See Dominique Vidal, op. cit., p. 71.
69 General Armistice Agreement between Egypt and Israel, 24 February 1949, United Nations, Treaty Series,
Vol. 42, 1949, pp. 251-285 (Ann. 16).
- 35 -
Map No. 6. Territory annexed between 1947 and 1948, from Alain Gresh, Israël, Palestine,
Vérités sur un conflit, Fayard, Paris, 2002, middle section.
1947-1949 : le plan de partage et les premières
annexions
1947-1949: the partition plan and the first
annexations
Liban Lebanon
Syrie Syria
- 36 -
Tibériade Tiberius
Mer Méditerranée Mediterranean Sea
Jénine Jenin
Naplouse Nablus
Jourdain Jordan
Jéricho Jericho
Bethléem Bethlehem
Transjordanie Transjordan
Égypte Egypt
Mer Morte Dead Sea
Désert du Néguev Negev Desert
Frontières de la Palestine sous mandat
Britannique entre 1922 et 1948
Boundaries of Palestine under British Mandate
between 1922 and 1948
Plan de partage de l’ONU du 29 novembre 1947 United Nations plan of partition of
29 November 1947
Etat juif Jewish State
Etat arabe Arab State
Régime international particulier Special international régime
Principaux massacres de Palestiniens Principal massacres of Palestinians
Territoires conquis par Israël en 1948 et 1949 Territories conquered by Israel in 1948 and
1949
Frontières des armistices de février-juillet 1949 Boundaries under the armistices of February-
July 1949
106. The territory controlled by Israel was now 77 per cent of the territory of Mandatory
Palestine. The number of incidents on the demarcation lines increased, ultimately paralysing the
Armistice Commissions. The Palestinians formed small armed groups to launch military operations
against Israel from Syria, Jordan and Gaza. In 1959, a handful of Palestinian leaders founded Fatah
in Kuwait. They established its military wing and launched an armed struggle on the night of
31 December 1964. However, the movement had only a few hundred members and suffered heavy
losses in the raids carried out.
- 37 -
(b) Consequences of the 1948 Arab-Israeli war in terms of population
107. The military operations carried out by Israeli forces in 1948 went hand in hand with a
desire to empty the territories of as many of their occupants as possible, a precondition for continuing
and expanding Jewish immigration. That is how one should understand the massacres that took place
even before the departure of the British forces. By sowing panic among the Arab populations, they
were intended to make clear to the Palestinians that their only chance of survival was to leave.
108. For a long time the Zionist leaders, who had now become Israel’s political leaders, took
pains to conceal that aspect of their project, which was not only unconscionable in human terms but
open to legal condemnation under international law, which was then beginning to assert itself. Unable
to deny that between 700,000 and 900,000 Palestinians had fled their homes between the departure
of the British on 15 May 1948 and the Armistices of 1949, they therefore strived, first, to downplay
the number of those who had fled and, second, to allege that people were fleeing en masse as the
result of calls by the Palestinian leaders who had advised them to leave, guaranteeing that they would
be able to return once victory was won: “And we have explicit documents testifying that they left
Palestine following instructions by the Arab leaders, with the Mufti at their head, under the
assumption that the invasion of the Arab armies . . . would destroy the Jewish state and push all the
Jews into the sea”70.
109. In the 1990s a new generation of Israeli historians, the “new historians” who had access
to Israeli archives that had become available for consultation, led to advances in determining what
actually happened71. This confirmed that there was a determined policy to expel the greatest possible
number of Palestinians, not only from the part of Palestine intended to become the Jewish State under
the partition resolution but further afield in parts of the territory intended to form an Arab State.
110. The exodus of the Arab population appears to have occurred in waves. The first, of around
70,000 people, between December 1947 and March 1948, was initially confined to urban Palestinians
who feared widespread confrontation when the partition plan was announced. As the chaos increased,
however, the flows swelled in the wake of Haganah raids, in Jerusalem in particular, and the atrocities
committed by the Palmach in Qisarya. Josef Weitz, entrusted with organizing the Judaization of
towns and villages, instigated the expulsions from specific localities.
111. The second wave, triggered at the time of the British departure in April-May 1948, was
associated with implementation of “Plan Dalet”, which David Ben Gourion presented to the general
staff on 28 March72. It consisted of a Jewish offensive aided by the receipt of weapons and of funds
raised in the United States and by a general mobilization of those aged between 18 and 25. Those
factors meant that the Haganah now numbered six brigades. “[F]rom the beginning of April, there
[were] clear traces of an expulsion policy on both national and local levels with respect to certain
70 Speech by Ben Gourion to the Knesset in 1961, quoted by Benny Morris, 1948 and After, Israel and the
Palestinians, Oxford, Clarendon Press, 1990, p. 30.
71 Tom Segev, 1949, The first Israelis, 1984 (Hebrew) [(English translation, Owl Books, 1998)]; Simha Flapan,
The birth of Israel: myths and realities, New York, Pantheon Books, 1987; Benny Morris, The birth of the Palestinian
refugee problem, 1947-1949, Cambridge, Cambridge University Press, 1987; Benny Morris, 1948 and after: Israel and the
Palestinians, Oxford, Clarendon Press, 1994; Benny Morris, The birth of the Palestinian refugee problem revisited,
1947-1949, Cambridge, Cambridge University Press, 2004; Benny Morris, 1948: a history of the first Arab-Israeli war,
New Haven (Conn.), Yale University Press, 2008; Avi Shlaïm, Collusion across the Jordan: King Abdullah, the Zionist
Movement and the partition of Palestine, 1988 (republished in 1990 under the title The politics of partition); Ilan Pappé,
The making of the Arab-Israeli conflict, 1947-1951, I. B. Tauris, 1992; Ilan Pappé, The ethnic cleansing of Palestine,
Oneworld Publications, 2007.
72 See Ann. 14.
- 38 -
key strategic districts and localities”73. The exodus increased tenfold following news of the massacre
at Deir Yasin on 9 April 1948. When the Haganah took Haifa, only between 3,000 and 4,000 out of
its 70,000 Arab inhabitants would remain. The same thing occurred in Jaffa and elsewhere. “Plan D”
was applied to the whole of Galilee, both its eastern and western sectors74.
112. The third wave of the Palestinian exodus began on 9 July. The intention of expelling the
Arab population was now more explicit. Heavy bombing was driving the exodus and the orders were
that this should be the case. Tsahal, the Israeli army, launched an offensive towards Jerusalem and
took two towns in Arab territory, Lydda (where 250 civilians were massacred) and Ramleh. More
than 60,000 Palestinians would be expelled from these towns on 12 and 13 July75. The Israeli army
would then take Nazareth, a step towards the Judaization of Galilee. The flow of refugees was
increased by the operations carried out by the Israeli forces from 18 July to 15 October 1948. In the
region known as the Little Triangle, an Arab area between Nablus, Tulkarm and Jenin, aerial
bombardments and atrocities forced the Arab inhabitants to leave, as observed by United Nations
investigators: “when the attack ended . . . all the inhabitants of the three villages were forced to
leave”76.
113. A fourth wave of expulsions of Arab populations began in the Negev where the
population was pushed out towards Gaza. A massacre at al-Dawayima triggered panic among the
population. When the fighting of October-November 1948 ended, the number of refugees in the Gaza
Strip had risen from 100,000 to 230,000. At the same time, in the north, a three-day operation forced
some 30,000 people to flee.
“On no front were across-the-board orders given to chase out the Arab
populations. However, in October 1948 the brigade, battalion and company
commanders were generally of the view that it was best that the Jewish State should
have as few Arabs as possible . . . When expulsions occurred, they were generally at the
initiative of local commanders. Added to this was the ‘atrocity factor’, which played a
major role in prompting people to flee from various groups of Muslim villages in Galilee
and from al-Dawayima in the south . . . Operations Hiram and Yoav together turned
some 100,000 to 150,000 Arab residents into refugees.”77
114. Between November 1948 and July 1949, other expulsions would be the result of actions
by the Israeli army to remove as much of the Arab population as possible from the border areas and
to drive the Bedouin tribes out of the Negev. The Israeli Government tried to play down its
responsibility in relation to the Palestinian refugees so as not to jeopardize its forthcoming
application for Israel to be admitted to the United Nations. UNRWA put the number of Palestinian
refugees in the wake of the 1948-1949 war at between 800,000 and 900,000.
73 Benny Morris, The Birth of the Palestinian Refugee Problem, 1947-1949, Cambridge, Cambridge University
Press, 1987, p. 64.
74 See Ann. 14.
75 See Nur Masalha, “Le concept de ‘transfert’ dans la doctrine et dans la pratique du mouvement sioniste”, in Le
droit au retour. Le problème des réfugiés palestiniens, Farouk Mardam-Bey and Élias Sanbar (eds.), Arles, Actes Sud,
Sindbab, 2002, p. 41.
76 Ibid., p. 214 [Translation by the Registry].
77 Ibid., pp. 235-236 [Translation by the Registry].
- 39 -
Map No. 7, Expulsion of Palestinians in the period 1948-1949, in Quel État pour la Palestine?, Raphaël Porteilla,
Jacques Fontaine, Philippe Icard and André Larceneux (eds.), L’Harmattan, Paris, 2011, middle section, fig. 10.
Figure 10 - L’expulsion des Palestiens en
1948-1949
Figure 10 - Expulsion of Palestinians in the
period 1948-1949
LIBAN LEBANON
Lac de Tibériade Lake Tiberius
- 40 -
Mer Méditerranée Mediterranean Sea
Jenine Jenin
Naplouse Nablus
Jéricho Jericho
Bethléem Bethlehem
Mer Morte Dead Sea
Hébron Hebron
Asqualan Ashkelon
Exil de la population palestinienne en
1948-1949
Palestinian population exiled 1948-1949
Villages dépeuplés et détruits en 1948 Villages depopulated and destroyed in 1948
Ville Town or city
Frontière internationale International boundary
Ligne Verte (ligne d’armistice de 1949) Green Line (1949 Armistice Demarcation Line)
Massacres de Palestiniens Massacres of Palestinians
115. The Zionists who were in charge in Palestine during the Mandate had accepted the
partition plan recommended by the United Nations only as a phase in the future expansion of
territory. Their project was also aimed at taking control of the areas of Jewish settlement and
concentration outside the boundaries set for Israel in the partition resolution. That project, whose
implementation had begun even before the British Mandate ended, became systematic from
May-June 1948. Expansion of the territory assigned to Israel by the United Nations was at the very
heart of the project.
116. In 1948 Israeli-dominated territory thus rose from the 56 per cent of Mandatory Palestine
allotted to the Jewish State by the United Nations resolution, to 78 per cent. However, the policy of
driving Palestinians out of their villages and their towns and cities was also motivated by a wish to
appropriate their property. Ever since its creation, the Zionist movement had made clear that it was
keen to take hold of Palestinian land. Israel was not content with acquiring political dominion over
the territory it had conquered by force. Israeli leaders made no secret of having plans to seize territory
and of seeking to expel the Arab inhabitants, by force if necessary, in order to take over Arab land
and distribute ownership of it among Jewish settlers.
117. As director of the Land Department of the Jewish National Fund (JNF), the body
responsible for purchasing the land necessary to advance the Zionist project, Josef Weitz would be
its architect. In his diary, he set out candidly the link between the appropriation of land and the need
to expel the Arab population:
- 41 -
“It must be clear that there is no room in the country for both peoples . . . If the
Arabs leave it, the country will become wide and spacious for us . . . The only solution
is a Land of Israel, at least a western Land of Israel, without Arabs. There is no room
here for compromises . . . There is no way but to transfer the Arabs from here to the
neighbouring countries, to transfer all of them, save perhaps for [the Arabs of]
Bethlehem, Nazareth and old Jerusalem. Not one village must be left, not one tribe. The
transfer must be directed at Iraq, Syria and even Transjordan. For this goal funds will
be found . . . And only after this transfer will the country be able to absorb millions of
our brothers and the Jewish problem will cease to exist. There is no other solution.”78
118. The Israeli Government passed an Emergency Absentee Property Law, enacted on
30 June 1948. It was implemented from 31 March 1950 and enabled the confiscation of 40 per cent
of Palestinian land, that is to say, some 16 million dunums (1.6 million hectares). All Arab
Palestinians who left their place of habitual residence between 29 November 1941 and 1 September
1948 were treated as absentees. Their property (houses, land, livestock and so forth) could be vested
in the custodian of absentee property79.
119. Historians reported at the time:
“Abandoned Arab dwellings in towns have . . . not remained empty . . . The
existence of these Arab houses — vacant and ready for occupation — has, to a large
extent, solved the greatest immediate problem which faced the Israeli authorities in the
absorption of immigrants. It also considerably relieved the financial burden of
absorption.”80
The result of those confiscations was that Jewish settlers could be installed on the confiscated land,
and the wealth appropriated at the same time would serve to finance that settlement.
(c) Political evolution of the situation and powerlessness of the United Nations
120. In resolution 181 the General Assembly, which had no decision-making powers, asked
the Security Council to implement the territorial provisions outlined therein. However, the Arab
refusal to acquiesce to a partition that was regarded as a large-scale violation of the rights of the
Palestinian people, the situation of armed conflict in Palestine and Israel’s forcible territorial gains
precluded any measure to implement the partition plan.
121. Count Bernadotte, appointed by the General Assembly of the United Nations to
“[p]romote a peaceful adjustment of the future situation of Palestine”, was unable to arrange
negotiations between the parties. He nevertheless achieved a temporary truce, during which he
proposed another partition plan under which an Arab State would be composed of Transjordan plus
the territories assigned to an Arab State by resolution 181 but with adjustments whereby the Negev
would form part of the Arab State while Galilee would form part of Israel. Then, on 17 September
1948, Bernadotte was assassinated by the Stern Group, one of the Jewish terrorist organizations that
had operated openly since the end of the Mandate.
78 Quoted by Benny Morris, op. cit., p. 27.
79 For the definition of “absentee” see Ussama Rafik Halabi, “La Direction des biens des absents en Israël”, in Le
droit au retour. Le problème des réfugiés palestiniens, Farouk Mardam-Bey and Élias Sanbar (eds.), Arles, Actes Sud,
Sindbab, 2002, pp. 263-282.
80 Simha Flapan, The Birth of Israel. Myths and Realities, London and Sydney, Croom Helm, 1987, p. 107.
- 42 -
122. Ralph Bunche, appointed as acting mediator, was the architect of the Rhodes meetings
that gave rise to the armistice agreements concluded with the various Arab countries in 1949. Those
agreements did not prejudge the final settlement of the conflict. The question of the allocation of the
territories from which the mandatory Power had withdrawn was therefore also unresolved. The
region was in complete upheaval with the massive displacement of Palestinians. In response to this
emergency, on 11 December 1948 the United Nations General Assembly adopted resolution 194 by
which it created a Conciliation Commission for Palestine, called for the demilitarization and
internationalization of Jerusalem and, first and foremost, resolved that exiled Palestinians had a right
of return: “the refugees wishing to return to their homes and live at peace with their neighbours
should be permitted to do so at the earliest practicable date, and . . . compensation should be paid for
the property of those choosing not to return and for loss of or damage to property”81.
123. The Conciliation Commission was faced with the three problems generated by the chaotic
withdrawal from the Mandate, followed by the 1948 Arab-Israeli war: the problem of territory, the
problem of the future of Jerusalem and the refugee problem. It was not in a position to make progress
on any of them. On the territorial question, Israel made clear its very resolute intention to keep the
territories taken by force in 1948 and the Gaza region, leaving the West Bank under the
administration of Jordan.
124. That was the context, the product of the balance of power, in which, on 29 November
1948, one year after the vote on the partition resolution, Israel applied for admission to the United
Nations. The Security Council initially rejected the application. After Israel had given an assurance
during the debates that it would respect the United Nations resolutions82, it was admitted to
membership on 11 May 1949, specific reference being made to the undertaking given by that State
to honour its obligations under the Charter unreservedly83.
125. Despite giving its word, Israel immediately applied its laws to the territories occupied in
1948, thereby formally endorsing their annexation by force. The same was the case for West
Jerusalem, which was declared the capital of Israel in January 1950. For Israel there was nothing
temporary about those measures even though there had been no international settlement of the
situation.
126. In 1950, Jordan, which would not become a Member of the United Nations until 1955,
declared the West Bank officially under its control, notwithstanding opposition from the other Arab
States.
127. The situation then became blocked for nearly two decades. A United Nations Conciliation
Commission was set up in January 1949. Its diplomatic efforts were unsuccessful. Its role was limited
to administrative functions such as keeping lists of refugee assets and who owned them, blocked
bank accounts and so forth.
128. The Palestinian people, split between those who stayed on Israeli territory as determined
by resolution 181, those who remained in the Arab parts taken over by Israel in 1948 and all those
who had fled, either to Gaza or to the West Bank (now under Jordanian administration) or to the
81 United Nations General Assembly, resolution 194 (III), 11 December 1948 (Ann. 17).
82 “Declaration accepting obligations under the Charte [sic]”, from Israel’s Foreign Minister to the [United Nations]
Secretary-General, 29 November 1948, United Nations, Security Council, S/1093 (Ann. 18).
83 United Nations General Assembly, resolution 273 (III), 11 May 1949 (Ann. 19).
- 43 -
other side of the river Jordan or to other countries, were left with no political organization, and it
took a number of years before the Palestine Liberation Organization would emerge in 1964 as a
political movement to defend their rights. The Arab States that had voted against the partition plan
in 1947 were now demanding, without success, that Israel withdraw to within the borders set for the
Jewish State in that plan.
129. For many years the United Nations, grappling with the Cold War and the ongoing
struggles for national liberation being waged by colonized peoples, had its attention focused
elsewhere. The Suez War in 1956, although not directly related to the question of Palestine,
nevertheless contributed to a crystallization of the antagonism between Israel and its Western allies
on the one hand and the Arab countries on the other. The conflict that had been latent for years
erupted as a military confrontation once again in 1967. That war would give rise to the military
occupation of the territory of Palestine.
B. Israel’s military occupation of the Palestinian territory
and its consequences
130. The facts that characterize the situation put before the Court by the General Assembly’s
questions, from 1967, can be broken down into three periods:
 the 1967 war and Israel’s military occupation of the whole of Palestine, including Jerusalem (1);
 the first Intifada which began in 1987 and led to the Oslo Accords of 1995 (2);
 the failure of the Oslo process, attempts to build on it with the “Roadmap” and the continued
deterioration of the situation (3).
1. The 1967 war and Israel’s military occupation of the whole of Palestine, including Jerusalem
131. In 1967, the war known as the Six-Day War and the occupation of the whole of Palestine
by the Israeli army signalled the beginning of a new period. It was characterized by the balance of
military power (a); changes in the situation in terms of the control of territories and as the result of
population movements (b); and the difficulties encountered by the United Nations in enforcing its
decisions (c).
(a) The military operations of 1967, and those of 1973 and subsequent years
132. Along with the setting up of the PLO came the opening of training camps for Palestinians.
Between 1964 and 1966 various groups (the military wing of the PLO, the military wing of Fatah
and the Palestinian wing of the Arab Nationalist Movement) carried out armed actions against Israel.
Following an Israeli military action in the southern Hebron area on 13 November 1966, the Security
Council observed that “this incident constituted a large-scale and carefully planned military action
on the territory of Jordan by the armed forces of Israel”. By that resolution it “censore[d]” Israel for
that violation of the United Nations Charter and of the Armistice Agreement with Jordan84.
133. The armies of Syria and Egypt were put on alert. On 20 May 1967, all the Arab States
declared mutual solidarity in the event of an attack on one of them. On 22 May 1967, Nasser
announced the closure of the Tiran Strait, to which Israel responded that it would resort to force if
84 Security Council resolution 228 (1966) of 13 November 1966.
- 44 -
necessary in order to have it reopened. On 5 June 1967 Israel carried out a “preventive” offensive
that later became known as the Six-Day War. In less than a week, Israel tripled the territory it held:
Egypt lost the Gaza Strip and the Sinai Peninsular; the Golan Heights were taken from Syria; and
Jordan lost the West Bank and East Jerusalem. More symbolic even than the Arab defeat was the
taking of the Old City of Jerusalem on 7 June 1967.
“Less than a week after the takeover of East Jerusalem on 7 June 1967, the
Maghrabi quarter, dating from the twelfth century and adjacent to the Western Wall and
the Haram al-Sharif, and its little mosque (zawiya) had disappeared from the face of the
earth. Israeli bulldozers arrived before dawn and encircled the quarter, giving the
inhabitants three hours to vacate their homes . . . By the end of the month, on 28 June
1967 to be precise, the boundaries of the municipality of Jerusalem were arbitrarily
extended from 6 to 73 sq km, at the expense of the territories of the occupied West
Bank.”85
134. At the very start of the Israeli offensive, the Security Council adopted two ceasefire
resolutions that proved ineffective86. On 22 November 1967, by resolution 242, the Security Council
called for the withdrawal of Israeli armed forces from territories occupied in the recent conflict,
respect for the right of each State in the region to live in peace within secure and recognized borders
and a just settlement of the refugee problem87.
135. The 1967 war resulted in the whole of Mandatory Palestine being under Israeli military
occupation. The Palestinian military organizations were reinforced from Jordan and Lebanon where
they had established bases, and launched attacks, the most significant being that on Karameh in
March 1968. Israel maintained that there could be no possible return to the 1967 borders, “even if a
peace agreement is signed between Israel and the Arab States, the Israeli forces will never withdraw
from Jerusalem, the Golan Heights, Gaza and Sharm el-Sheikh”88.
136. During the summer of 1973, the press was suggesting that Israel was resolutely looking
to annex the occupied territories89. In an unexpected reversal in the Arab-Israeli conflict, already a
quarter of a century old, on 6 October 1973 Egypt and Syria launched a war that would be known as
the Yom Kippur War. Decided upon in the utmost secrecy although preceded by an agreement
between Syria and Egypt concluded in Cairo on 12 September 197390, it overturned the then wellestablished
belief that Israel held military supremacy in the region. The aim of the war was both to
85 Walid Khalidi, “Pour une solution juste et viable de la question de Jérusalem”, in Jérusalem, le sacré et le
politique, Farouk Mardam-Bey and Élias Sanbar (eds.), Arles, Sindbad Actes Sud, 2000, p. 336 [Translation by the
Registry].
86 Resolutions 234 of 7 June 1967 and 237 of 14 June 1967.
87 United Nations Security Council, Resolution 242, 22 November 1967 (Ann. 20).
88 Declaration of Golda Meir, Prime Minister of Israel: “Mme Meier affirme qu’Israël ne rendra pas tous les
territoires occupés « même si un accord de paix est signé avec les pays arabes »” (“Golda Meir states that Israel will not
return all the occupied territories ‘even if a peace agreement is signed with the Arab countries’”), Le Monde, 11 April 1972
(Ann. 21).
89 Statements by General Dayan, “Israël conservera les territoires occupés où des localités juives auront été
implantées” (“Israel to keep the occupied territories where Jewish localities have been established”), Le Monde, 23 August
1973 (Ann. 22).
90 Éric Rouleau, “La guerre d’octobre ou la diplomatie du canon, I La chance de ne pas être cru” (“The October
war and gunboat diplomacy, I. The good fortune not to be believed”), Le Monde, 24 November 1973 (Ann. 23a). Éric
Rouleau, “La guerre d’octobre et la diplomatie du canon, II Les dédales de l’opération « BADR »” (“The October war and
gunboat diplomacy, II. The intricacies of Operation Badr”), Le Monde, 26 November 1973 (Ann. 23b).
- 45 -
reconquer the territories occupied by Israel in Egypt and Syria and to restore the rights of the
Palestinian people.
137. Israel was taken by surprise, having underestimated the capabilities of the Arab armies,
which had gained strength since 1967. Nevertheless, after mobilizing its reservists, the Israeli army
was able to consolidate and then advance its positions. On 22 October, the Security Council called
on the parties to observe an immediate ceasefire and return to their previous positions, and resolved
to set up an Emergency Force91. Despite deployment of that Force, the ceasefire was broken
numerous times in the following months. Egypt’s forces were disengaged in March 1974 and those
of Syria in June.
(b) Consequences of the military operations in that period in terms of the control of territories
and population movements
138. In 1967, through the use of armed force, Israel occupied the whole of the West Bank,
where it would pursue a policy of creating a fait accompli. The military operations had caused a new
flow of refugees fleeing the fighting. Israel would also systematically establish settlements in places
considered to be strategic. That occupation and its subsequent continuation was achieved in 1967 at
the expense of the Palestinian people of the West Bank, which had been under the administration of
Jordan since 1950. The Jewish State also occupied the Gaza Strip, to the detriment of the Palestinian
people of that part of the territory, which had been under Egyptian administration.
139. As Golda Meir had predicted, the Security Council’s injunction in resolution 242 of
22 November 1967 regarding Israel’s withdrawal from the occupied territories was not put into
effect, which remains the case today in respect of the West Bank92.
140. Almost 439,000 people now became new refugees, nearly half of whom were
experiencing their second exile, as they had already been forced to flee by the 1948 war. Of these,
200,000 were transferred on the orders of the Israeli governor of the West Bank, Chaim Hertzog,
who was to become Israel’s President from 1983 to 1993. He has himself acknowledged that he
organized the departure of those Palestinians to Jordan, in a statement of 8 November 1991
reproduced by Agence France-Presse93.
141. In the early years, Israel’s policy towards the Palestinian population under occupation
was relatively liberal. It hardened progressively, as Israel proved willing to disregard its obligations
under the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War
of 1949 (even though Israel had been a signatory thereto since 8 December 1949 and had ratified it
on 17 December 1951). Israel also disregarded the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict of 1954 (even though Israel had been a signatory thereto
since 14 May 1954 and had ratified it on 3 October 1957).
91 Resolutions 338 of 22 October 1973, 339 of 23 October 1973 and 340 of 25 October 1973.
92 See below, para. 184, in respect of Gaza, which Israel left in 2003 but has been kept under a blockade by the
Israeli army.
93 Statement by Chaim Herzog, President of Israel, “Le Président Herzog reconnaît avoir organisé le départ de
200 000 Palestiniens en 1967” (“President Herzog acknowledges organizing the departure of 200,000 Palestinians in
1967”), Le Monde, 10-11 November 1991 (Ann. 24).
- 46 -
142. The other limb of Israeli policy, which complemented its intention of expelling as many
Palestinians as possible from the territories occupied by force, was the gradual establishment of as
many Jewish settlers as possible in those territories. As early as the summer of 1967, the Israeli
government drew up a settlement plan, named the Allon Plan.
Map No. 8, The Allon Plan, in Les frontières au Moyen-Orient, Jean-Paul Chagnollaud and Sid-Ahmed Souiah (eds.),
L’Harmattan, Paris, 2004, p. 186.
Carte no 57 : PLAN ALLON Map No. 57: Allon Plan
Syrie Syria
Jordanie Jordan
Jénine Jenin
Naplouse Nablus
- 47 -
Kalkilya Qalqiliya
Bethléem Bethlehem
Mer Morte Dead Sea
Territoires devant rester sous contrôle israélien Territories to remain under Israeli control
Eventuel Etat Palestinien Possible Palestinian State
The justification given for the plan was that the 1948 boundaries (corresponding to territory taken by
force), in particular the eastern boundaries, were too close to the Mediterranean coast to afford Israel
sufficient strategic depth.
143. In September 1973 the Labour Party adopted the “Galili document” on the policy to be
pursued in the occupied territories. It envisaged general and systematic settlement. A politicalreligious
form of Zionism emerged in the form of Gush Emunim (“Bloc of the Faithful”), which
regarded the settlement of Jews on the land of Palestine as a religious duty. When Menachem Begin,
the leader of Likud, succeeded Rabin in 1977 his political programme was based on the “Greater
Israel” project, which involved continuing the settlements and land takeovers. The policy on
“absentee” property applied to the Palestinians who had fled in 1948 was applied afresh to the
refugees’ property.
144. Settlement in the West Bank and Gaza gathered pace. Settlements were sited so that they
systematically broke up the areas heavily populated by Palestinians. In October 1978 the “Drobless
Plan” was published under the political authority of Ariel Sharon, then Minister for Agriculture. This
was a framework plan for expanding settlement in the West Bank. From 1981 the settler population
in occupied territories increased from the 6,000 it was in 1977 to over 44,000 in 198494. In 1990, a
Shamir government granted tax benefits and exceptional loans and subsidies to Jewish settlements
in Palestinian territory. In 1991, 13 per cent of the inhabitants of the occupied territories were Jewish
settlers.
145. That ongoing settlement policy went hand in hand with various techniques for
appropriating Palestinian land. Confiscating land and declaring it off-limits for military training,
declaring an area to be public land, expropriating land for reasons of public interest or confiscating
it on the pretext of establishing nature reserves were all among the means used at that time by the
Israeli authorities. These Israeli enclaves in Palestinian territory were not covered by the legislation
applied in the rest of Palestinian territory and were subject to Israeli law.
(c) Political evolution of the situation and the role of the United Nations up to the first Intifada
in December 1987
146. The policy of fait accompli implemented by Israel in the Occupied Palestinian Territory
from 1967 had consequences first of all within the Palestinian population, both inside Palestine and
in exile abroad, and afforded a platform for the Palestinian organizations throughout the region.
94 Figures taken from Jean-Paul Chagnollaud and Sid-Ahmed Souiah, Les frontières au Moyen-Orient, Paris,
L’Harmattan, 2004, p. 199.
- 48 -
Those organizations nevertheless remained dependent on the States in the region in whose territory
they were based.
147. By resolution 237 of 14 June 1967, the Security Council called on the Israeli Government
to facilitate the return of the inhabitants who had fled from those areas since the outbreak of hostilities
and recommended to the Governments concerned scrupulous respect for the humanitarian principles
governing the treatment of prisoners of war and the protection of civilians in time of war, as set out
in the Geneva Conventions of 12 August 194995. Israel paid no heed.
148. Security Council resolution 242 of 22 November 1967 represented a clear stance on the
part of the United Nations, all the more so because it was adopted unanimously96. Israel disregarded
it, as it had the preceding resolutions. The insurmountable disagreement between the parties on the
precondition that Israel had to withdraw from the occupied territories, a point on which the Israeli
position remained inflexible, then led to a chaotic situation punctuated by outbursts of violence.
149. The General Assembly made pronouncements on the Palestinian question several times
in the years following the Six-Day War. In resolution 2452 A, addressing the Government of Israel
directly, it called upon it “to facilitate the return of those inhabitants who have fled”97. In 1968, it set
up a special committee to investigate Israeli practices affecting human rights in the occupied
territories. However, Israel denied that committee authorization to visit on-site. In 1969, the General
Assembly affirmed the need for full respect for the inalienable rights of the people of Palestine98. In
1973, it stated its view on “the legitimacy of the peoples’ struggle for liberation from colonial and
foreign domination and alien subjugation by all available means, including armed struggle”99. In
1974, the PLO was invited to take part as an observer in the proceedings of the General Assembly.
In 1975, a Committee on the Exercise of the Inalienable Rights of the Palestinian People was set up
and entrusted with putting in place a programme to implement those rights.
150. Challenging the Israeli settlement policy, in a resolution of 1979 the Security Council
called on Israel to respect the Geneva Convention relative to the Protection of Civilian Persons in
Time of War of 1949. It called on Israel
“to rescind its previous measures and to desist from taking any action which would
result in changing the legal status and geographical nature and materially affecting the
demographic composition of the Arab territories occupied since 1967, including
Jerusalem, and, in particular, not to transfer parts of its own civilian population into the
occupied Arab territories”100.
In the same resolution the Security Council decided to create a commission to examine the situation
relating to settlements in the Arab territories occupied since 1967, including Jerusalem. That
commission failed to secure the co-operation of the Israeli Government.
95 Security Council resolution 237 of 14 June 1967, footnote [86] above.
96 See Ann. 20.
97 United Nations General Assembly, resolution 2452 (XXIII) of 19 December 1968.
98 United Nations General Assembly, resolution 2535 B(XIV) of 10 December 1969.
99 United Nations General Assembly, resolution 3070 (XXVIII) of 30 November 1973.
100 Security Council resolution 446 (1979) of 22 March 1979.
- 49 -
151. In March 1982, there were demonstrations in several towns in the West Bank following
the removal of the mayor and dismantling of the municipal authorities of El Bireh by the Israeli
occupation authorities. Despite that popular reaction, the Israeli authorities also removed the mayors
of Nablus and Ramallah. Further protests by the Palestinian population led to intervention by the
Israeli army.
152. In 1983, in response to the grave situation resulting from Israel’s invasion of Lebanon,
the Sabra and Shatila massacres and the creeping annexation of the West Bank, the General Assembly
convened an International Conference on the Question of Palestine in Geneva from 29 August to
7 September 1983. It adopted a Declaration of guiding principles to be used as the basis for concerted
international action aimed at settling the question of Palestine101.
153. In the following months and years the situation in Palestine deteriorated continuously.
Israel persisted in its policy of the systematic Judaization of the Occupied Palestinian Territory. The
Jewish State relied on emergency laws and regulations which it enforced by means of stepping up
arrests, detaining many civilians or through administrative detention measures102. Despite the
concerns of the international community and the hope that an International Conference would meet
to discuss the matter, incidents worsened in 1987 leading to the first Intifada, which marked the
beginning of a new period.
2. The first Intifada in 1987 and progress towards the Oslo Accords in 1995
154. The Intifada or “uprising of the stones” began on 9 December 1987 and was to overturn
the political assumptions concerning Palestine in every domain (a). The breadth of those upheavals
paved the way for diplomatic steps that would lead to the outlining of a political settlement that was
to crystallize several years later with the Oslo Accords (b).
(a) The upheavals resulting from the first Intifada
155. The movement was triggered by the death of four Palestinians in an accident involving a
Palestinian shared taxi and an Israeli lorry in the Gaza Strip. Within a few days the flare-up had
become widespread. Towns and cities, villages and refugee camps were affected by a spontaneous
action which rapidly became organized. It revealed the imbalance of strength between the sides.
Unarmed, and for the most part very young, demonstrators were attacking a highly equipped army,
with stones. A “unified patriotic leadership of the Intifada” was created and published its first
communiqué on 4 January 1988. The Palestinian population formed local committees that managed
the various aspects of the uprising: mass demonstrations, strikes, boycotts of Israeli products, a
refusal to pay Israeli taxes and various forms of civil disobedience. The committees also organized
the community support that would enable the population to survive. Itzhak Rabin, the Defence
Minister, declared a state of emergency in order to subdue the subversion by any means103. He
ordered his soldiers to break the bones of the demonstrators, orders which were carried out to the
letter. Images were broadcast by CBS.
101 United Nations General Assembly resolution of 13 December 1983, Document 38/58 C.
102 United Nations General Assembly, Report of the Special Committee to Investigate Israeli Practices Affecting
the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, 3 October 2022, A/77/501
(Ann. 25).
103 Statement by Itzhak Rabin, Israel’s Defence Minister, “Le gouvernement israélien a approuvé l’installation de
colons dans un quartier arabe de Jérusalem” (“The Israeli Government has approved settlement in an Arab district of
Jerusalem”), Le Monde, 10 December 1991 (Ann. 26).
- 50 -
156. The extent of the uprising can be explained by the situation that had been imposed on the
Palestinians for many years: the confiscation of land, the appropriation of 70 per cent of water
resources, the systematic advance of Jewish settlements, measures of harassment and repression and
worsening unemployment (which at that time affected 60 per cent of the active population). “The
Intifada, or uprising, was, initially, completely spontaneous. The Israeli policy of multiple pressures
had reached a tipping point at which the fear of repression no longer outweighed despair at the
future”104. The uprising now enjoyed political unity, which found expression at the Palestine National
Council held in Algiers in April 1987.
157. The revolt was to unleash a wave of solidarity on the part of the Israeli Arab population,
who observed a general strike from 21 December 1987. Although in Israel it strengthened the
ultranationalist camp that favoured quashing the Intifada by force, in the more moderate sections of
Israeli society it aroused a wish to reach a negotiated political solution. The Israeli elections of
1 November 1988 nevertheless signalled a hardening of attitude.
158. In parallel, however, the Palestine National Council that met in Algiers in November
1988 recognized Israel’s right to existence and security105. This peace offensive was going to smooth
the path to a dialogue between the United States and the PLO, while the PLO offices in various
European States were elevated to the status of delegations and dozens of countries recognized
Palestine as a State. In a resolution of 15 December 1988 the United Nations General Assembly
acknowledged the proclamation of Palestine and decided that the designation “Palestine” would be
used thenceforth in the United Nations system106.
159. Long before the outbreak of the Intifada, since the end of the 1960s, contact had been
established between Palestinian representatives and members of the Israeli Communist Party, Rakah.
A peace plan by King Fahd of Saudi Arabia was doing the rounds in 1981, but Israel’s invasion of
Lebanon turned attention elsewhere. In 1983 an International Conference on the Question of
Palestine, long called for by the United Nations, finally opened in Geneva and fostered contact once
again. Those relations were not held back by the “uprising of the stones” in the occupied territories.
160. During the United Nations General Assembly meeting in Geneva in December 1988,
Yasser Arafat confirmed his recognition of the existence of Israel and renunciation of terrorism. In
May, in Paris, he declared that the article of the Palestine National Charter calling for the destruction
of Israel had lapsed. In the period 1990/91, the United States’ supremacy confirmed by the first Gulf
War and the personal determination of James Baker would lead to the opening of an Israeli-
Palestinian peace conference in Madrid on 30 October 1991. It brought together Israel, Syria, Egypt
and Jordan. The Palestinian delegation was included as a “team” within the Jordanian delegation.
The process that would lead to the Oslo Accords had begun.
(b) The outline of a political settlement and its crystallization in the Oslo Accords
161. Following on from the Madrid Conference, negotiations began in Washington on
10 December 1991, aimed at implementing Security Council resolutions 242 and 338. Until 1993,
talks were intensive and involved the Palestinians. Whereas the Government of Yitshak Shamir
104 Henry Laurens, Le grand jeu, Orient arabe et rivalité internationale depuis 1945, Paris, Armand Colin, 1991,
p. 382 [Translation by the Registry].
105 United Nations General Assembly and Security Council, Declaration of Independence of the State of Palestine,
18 November 1988, A/43/827 S/20278, Annex III, pp. 13-16 (Ann. 27).
106 United Nations General Assembly, resolution 43/177 of 15 December 1988.
- 51 -
dragged out the talks while increasing repression in the territories, the arrival in office of the Labour
Party in Israel facilitated a more constructive strategy and the opening of channels for negotiation.
On 15 January 1993, Israel repealed the Law of 6 August 1986 prohibiting contact between Israel
and the PLO.
162. That led to an interim peace agreement being signed in Washington on 13 September
1993 by Shimon Peres and Abu Mazen, followed by a handshake between Yitzhak Rabin and Yasser
Arafat. The gesture illustrated simultaneous and mutual recognition by Israel and the representative
of the Palestinian people. That mutual recognition was recorded in an exchange of letters, both dated
9 September 1993107.
163. For a transitional period of five years, an interim self-government authority would be set
up which would then lead to the “permanent status” of the occupied territories108. That selfgovernment
authority would have full powers, with the exception of external security and foreign
affairs. However, Israeli citizens present in Palestine were not subject to Palestinian authority and
the roads affording access to Israeli settlements were placed under Israeli control. Democratic general
elections were planned for July 1994 to appoint the Palestinian Council. The agreement provided
that Israel would withdraw from the Jericho area and the Gaza Strip as soon as it was signed. Israel’s
army would be redeployed outside populated areas in all the occupied territories no later than the eve
of the elections. A Committee composed of Jordan, Egypt, Israel and the Palestinians would negotiate
the detailed arrangements for the return of the Palestinians transferred to Arab countries in 1967 and
the pace of that return. Negotiations on final status were expected to begin not later than the beginning
of the third year of the transitional period.
164. Difficulties soon emerged when it proved impossible to adhere to the planned time-limits.
This was particularly true of the provisions concerning the Jericho area and the Gaza Strip. The
agreement on those two areas, envisaged for 12 December 1993, was not signed until 4 May 1994.
A new interim agreement was nevertheless concluded a few months later on 28 September 1995 in
Washington, regulating the self-government of the whole of the West Bank and Gaza109.
165. The new interim agreement regulated a transfer of truly significant powers to the new
institutions of the West Bank and Gaza. The transfer was set out in a voluminous text (29 pages and
7 annexes comprising over 300 pages). The Parties reached agreement on interim measures but also
stated their intention to negotiate a permanent agreement to take effect on 4 May 1999.
166. The powers of the Palestinian Council were conferred powers, with Israel retaining all
powers not expressly transferred. Although the Palestinian Council did indeed have jurisdiction over
the whole of the occupied territory, in reality the fact that the territory was divided into three areas
with different characteristics considerably restricted its authority. Area A related to populated areas
with no Israeli settlements. In this area the transfer of powers was planned for the first phase. In Area
B, where there were Israeli interests, the transfer was phased over 18 months and although the
complete withdrawal of Israeli forces was planned, exclusively Israeli or Palestinian, or sometimes
joint, patrols could be envisaged. Lastly, in Area C, where Israel had established military installations
107 United Nations General Assembly and Security Council, Letters of mutual recognition between Israel and
Palestine of 9 September 1993, 7 March 2001, A/55/823 S/2001/197, Annex 1, p[p]. 3-4 (Ann. 28).
108 United Nations General Assembly and Security Council, Declaration of Principles on Interim Self-Government
Arrangements, 11 October 1993, A/48/486 S/26560, Annex, p[p]. 4-8 (Ann. 29).
109 United Nations General Assembly and Security Council, Israeli-Palestinian Interim Agreement on the West
Bank and the Gaza Strip of 28 September 1995, 5 May 1997, A/51/889 S/1997/357, Annex, p[p]. 5-31 (Ann. 30).
- 52 -
or developed Jewish settlements, issues relating to those settlements and installations and also to
boundaries, Jerusalem and refugees, remained within Israeli jurisdiction and would be negotiated as
part of the permanent status. These were, it can be seen, the most sensitive issues and those on which
genuine self-determination for the Palestinians depended.
Map No. 9, Le Monde diplomatique, Jerusalem municipal archives, Urban Plans Section; Bet El civil administration,
“arc-en-ciel” roadmap, 1994-1995; Yedioth Aharonot, 6 October 1995; official text of the Oslo I Accords.
Ligne verte Green Line
Limites de la municipalité de Jérusalem Municipal boundaries of Jerusalem
Villages palestiniens Palestinian villages
de moins de 3 000 habitants with less than 3,000 inhabitants
de 3 000 à 6 000 habitants with between 3,000 and 6,000 inhabitants
Autres centres urbains et quartiers palestiniens
(plus de 6 000 habitants)
Other Palestinian urban centres and districts
(more than 6,000 inhabitants)
- 53 -
Colonies israéliennes Israeli settlements
faiblement peuplées with few inhabitants
importantes large
Extensions prévues Planned extensions
Circulation Movement
Voies d’accès aux colonies israéliennes
(circulation réglementée pour les véhicules
palestiniens, arrêts aux points de contrôle)
Access roads to Israeli settlements (movement
regulated for Palestinian vehicles, stops at
checkpoints)
Voies d’accès en projet ou en construction Access roads planned or under construction
Routes palestiniennes (circulation libre) Palestinian roads (unrestricted movement)
L’organisation territoriale après les accords Territorial arrangements after the Accords
Autonomie palestinienne (Oslo I) Palestinian self-government (Oslo I)
Zone A : Autonomie palestinienne (Oslo II) Area A: Palestinian self-government (Oslo II)
Zone B : Territoires sous contrôle mixte
(Oslo II). Cette zone comprend aussi la quasitotalité
des villages arabes situés
géographiquement en zone C.
Area B: territories under joint control (Oslo II).
This area also includes almost all the Arab
villages located geographically in Area C.
Zone C : Territoires restant sous contrôle
israélien (Oslo II)
Area C: territories remaining under Israeli
control (Oslo II)
La zone de Jérusalem-Est annexée par Israël en
1967 (en blanc sur la carte) est exclude des
accords intérimaires
The area of East Jerusalem annexed by Israel in
1967 (blank on the map) is excluded from the
interim agreements
ISRAËL ISRAEL
MER MÉDITERRANÉE MEDITERRANEAN SEA
JÉNINE JENIN
KALKILYA QALQILIYA
NAPLOUSE NABLUS
PONT DAMYA DAMIYAH BRIDGE
JORDANIE JORDAN
PONT ALLENBY ALLENBY BRIDGE
JÉRICHO JERICHO
- 54 -
JÉRUSALEM OUEST WEST JERUSALEM
BETHLÉEM BETHLEHEM
MER MORTE DEAD SEA
HÉBRON HEBRON
Limite administrative Administrative boundary
Zone sous contrôle palestinien Area under Palestinian control
Caveau des Patriarches Cave of the Patriarchs
Zone sous contrôle israélien Area under Israeli control
Ligne de partage de la ville (accord du
15 janvier 1997)
Line dividing the town (Agreement of
15 January 1997)
167. As in the first agreement of 1993, Palestinian personal jurisdiction did not extend to
Israelis, in particular settlers living in occupied territory. Those people fell directly under the
jurisdiction of Israel. Moreover, Israel kept control of the borders. In economic and financial matters,
the Palestinian leaders had genuine authority. Israel nevertheless kept a tutelary power, since it could
intervene at any time in those fields for “security” reasons.
168. Those complex territorial arrangements, negotiated in agreements which for the
Palestinian people represented a step towards the self-government that was in their eyes a stage on
the way to self-determination, together with the frequent closures imposed by the Israeli army, had
the paradoxical effect that the population now felt that the situation had grown worse. This was the
backdrop to the assassination of Yitzhak Rabin on [4] November 1995 by a Jewish extremist opposed
to the Oslo Accords.
169. Elections for the first Palestinian Council took place on 20 January 1996, at the same time
as the election of the President of the Palestinian Authority. They were won by the PLO and its main
component, Fatah, and Yasser Arafat was elected President of the Palestinian Authority. The
autonomy enjoyed by those new Palestinian institutions was closely monitored. The word “State”
did not appear and there was no question of sovereignty. Their autonomy was tightly restricted and
overseen under what amounted to veritable tutelage by the Jewish State.
170. The fragile progress in the Accords of 1993 and then 1995 presupposed a constructive
dynamic. However, the Israeli elections of 29 May 1996, bringing to power a right-wing coalition
under Likud led by Benjamin Netanyahu, caused a hardening on the Israeli side. Nearly two decades
later all the signs are that the process embarked upon has been halted.
3. Failure of the Oslo process, attempts to revive it with the “Roadmap” and the ongoing
deterioration of the situation in Palestine
171. From 1995, contrary to what had been envisaged in the Accords of 1993 and then 1995,
the drive for peace became blocked. The United States Government, careful of the image of its
- 55 -
foreign policy and anxious to be able to claim advances on the Palestine brief, gave impetus to various
diplomatic meetings. Their outcomes would sometimes rekindle hope that a settlement was
possible (a). However, Israel’s continuing policy of settlement and repression has prevented any
significant progress (b).
(a) Unsuccessful diplomatic attempts
172. From 1995, successive negotiations have endorsed the same result, that is to say,
postponement of the undertakings given. Meetings in Hebron in 1997 and Wye River in October
1998 were the occasion for ritual reaffirmation of the shared wish to reach a permanent status, while
any such status was deferred indefinitely, even though, from the very start of the negotiations,
conclusion of a permanent agreement had been tabled for 1999110.
Map No. 10, Palestine on the eve of the second Intifada in September 2000, from Alain Gresh, Israël, Palestine,
Vérités sur un conflit, Fayard, Paris, 2002, middle section.
110 1993 Declaration of Principles on Interim Self-Government Arrangements, Article V, para. 1 (Ann. 29).
- 56 -
Etat ou bantoustans? La Palestine à la veille de
la seconde Intifada en septembre 2000
State or bantustans? Palestine on the eve of the
second Intifada in September 2000
Bande de Gaza Gaza Strip
Israël Israel
Egypte Egypt
Centres urbains, camps et quartiers palestiniens Palestinian urban centres, camps and districts
Territoire sous le contrôle exclusif de l’Autorité
palestinienne
Territory under the exclusive control of the
Palestinian Authority
Colonies israéliennes Israeli settlements
Territoire sous contrôle exclusif israélien Territory under exclusive Israeli control
Ligne verte (ligne d’armistice de 1949) Green Line (1949 Armistice Line)
Colonies israéliennes et projets d’éxtension Israeli settlements and planned expansion
Camps de réfugiés palestiniens Palestinian refugee camps
Voies d’accès aux colonies (y compris les
projets)
Access roads to settlements (including planned
roads)
Autres routes Other roads
Situation en septembre 2000 Situation in September 2000
Zone A : territoires sous le contrôle exclusif de
l’Autorité palestinienne
Area A: territories under the exclusive control
of the Palestinian Authority
Zone B : territoires sous contrôle mixte.
L’armée israélienne y est responsable de la
sécurité
Area B: territories under joint control. The
Israeli army is responsible for security in this
area
Zone C : territoires restant sous contrôle
exclusif israélien
Area C: territories under exclusive Israeli
control
Réserve naturelle (Zone B) Nature reserve (Area B)
Sources : Arab Studies Society, Jérusalem;
ministère Palestinien de la Planification et de la
Coopération internationale; Palgric, Jérusalem;
cartographie de Jan de Jong dans Palestinian
Academic Society for the Study of International
Affairs (Passia, Jérusalem) et Foundation for
Middle East Peace (FMEP, Washington DC).
Sources: Arab Studies Society, Jerusalem;
Palestinian Ministry of Planning and
International Cooperation; Palgric, Jerusalem;
cartography by Jan de Jong in Palestinian
Academic Society for the Study of International
Affairs (Passia, Jerusalem) and Foundation for
Middle East Peace (FMEP, Washington DC).
Jénine Jenin
Kalkilya Qalqiliya
- 57 -
Naplouse Nablus
Cisjordanie West Bank
Vallée du Jourdain Jordan Valley
Jourdain [River] Jordan
Jordanie Jordan
Jéricho Jericho
Jérusalem ouest West Jerusalem
Bethléem Bethlehem
Hébron Hebron
Jérusalem-Est East Jerusalem
Mer morte Dead sea
173. At Sharm el-Sheikh in September 1999 things seemed a little different because Labour’s
Ehud Barak had been elected Prime Minister of Israel and appeared resolved to relaunch the peace
process. The final tally of achievements was nevertheless particularly sparse. The Palestinian selfgovernment
that was supposed to extend gradually to the whole of the territory occupied by Israel
was still confined to a much smaller area than had been planned. It consisted of disconnected scraps
of land. The Palestinian Authority genuinely controlled only Area A, which represented 3 per cent
of the territory and contained 26 per cent of the Palestinian population. Area B (under joint control)
covered 27 per cent of the territory with 70 per cent of the Palestinian population, and Area C,
covering the rest, was entirely under Israeli control. The redeployment agreed at Sharm el-Sheikh
would increase Palestinian control by only 13 per cent of the territory. The issue of safe passage
between Gaza and the West Bank, a decisive one since the Accords acknowledged that they formed
a single territory, was addressed only in a disappointing decision. The crossings agreed were in fact
not open continuously and those wanting to enter or leave had to undergo strict checks.
174. On the crucial question of the ultimate achievement of a Palestinian State in a permanent
agreement, the results of the Sharm el-Sheikh meeting were mixed. The process was split into two
stages: a framework agreement was to be concluded in February 2000, laying down the principles on
all the outstanding issues: the future of the settlements, determination of boundaries, the status of
Jerusalem, the return of refugees and management of security. The final agreement was expected in
September 2000.
175. Disappointments would only increase in 2000. The Israeli redeployment was not making
progress. The United States attempted to make things happen and organized the Camp David summit
from 11 to 25 July 2000. However, no meeting of minds was possible on the return of refugees or,
above all, on Jerusalem, with Israel judging the Palestinian request for sovereignty over the eastern
- 58 -
sector and especially over the Haram al-Sharif to be unacceptable. A joint statement by the parties
recalled their wish to reach agreement111. Israel’s claims made that impossible.
Map No. 11, Final status of the West Bank submitted by Israel in May 2000, in Tanya Reinhart, Détruire la Palestine ou
comment terminer la guerre de 1948, La Fabrique éditions, Paris, 2002, p. 33.
Carte du statut final de la Cisjordanie présentée
par Israël en mai 2000
Map of the final status of the West Bank
submitted by Israel in May 2000
Zones autonomes palestiniennes (A et B) Palestinian self-governing areas (A and B)
Zones devant passer un jour sous souveraineté
palestinienne
Areas to one day come under Palestinian
sovereignty
Zones de sécurité sous contrôle israélien «
temporaire »
Security areas under “temporary” Israeli
control
Zone sous souveraineté israélienne Area under Israeli sovereignty
Colonies israéliennes devant être annexées par
Israël
Israeli settlements to be annexed by Israel
Colonies israéliennes à l’intérieur des zones «
palestiniennes ».
Israeli settlements inside the “Palestinian”
areas.
4,6 %, 90,6 %, 4,8 %
Les % des différentes zones de Cisjordanie,
avec le nombre de colonies israéliennes et le
4.6%, 90.6%, 4.8%
Percentages of the various areas of the West
Bank, with the number of Israeli settlements
111 Israeli-Palestinian joint statement, George Marion, “Sans avoir abouti, le sommet de Camp David a levé de
nombreux tabous” (“Although no agreement was reached, the Camp David summit removed many taboos”), Le Monde,
27 July 2000 (Ann. 31).
- 59 -
pourcentage des colons (y compris Jérusalem-
Est)
and the percentage of settlers (including East
Jerusalem)
Bande de Gaza Gaza Strip
ÉGYPE EGYPT
ISRAËL ISRAEL
Cisjordanie West Bank
Limites de la ville étendues unilatéralement par
Israël le 28 juin 1967. Annexation votée par la
Knesset le 30 juillet 1980.
Boundaries of the City unilaterally extended by
Israel on 28 June 1967. Annexation approved
by Knesset vote on 30 July 1980.
ISRAËL ISRAEL
Jénine Jenin
Kalkilya Qalqiliya
Naplouse Nablus
COLONIES DE SHOMRON SHOMRON SETTLEMENTS
Vallée du Jourdain Jordan Valley
Jourdain Jordan
Jéricho Jericho
MAALÉ ADOUMIM MAALEH ADUMIM
Abou-Dis Abu Dis
Bethléem Bethlehem
Hébron Hebron
Jérusalem-Est East Jerusalem
Mer morte Dead sea
176. Demonstrating Israeli determination to concede nothing in respect of Jerusalem, on
28 September 2000 Ariel Sharon visited the Haram al-Sharif, thereby triggering a second Intifada.
Violence escalated and by the end of 2000 there were 350 dead and several thousand injured. Despite
that climate, United States mediation continued and led to the “Clinton Proposal”. This represented
progress, first in relation to Jerusalem in so far as the United States President proposed the
recognition of Palestinian sovereignty over the Haram al-Sharif and the Arab-populated parts of the
City, and second in relation to the territory, since he proposed the restoration of 90 per cent of the
- 60 -
West Bank and 100 per cent of Gaza in such a way as to ensure contiguity112. There nevertheless
remained the intractable question of the return of refugees.
177. Although these proposals contained real progress, their arrival at a late stage, the
deteriorating climate on the ground and the fact that the United States President was at the end of his
term of office prevented a positive outcome. Two meeting attempts, in Taba at the end of December
2000 and on the Egyptian border from 21 to 24 January 2001, during which it seemed that a meeting
of minds was at last possible, failed to reach agreement.
“Already moribund for some years, the Oslo peace process has now ceased to
exist or to have any future: the concerted progress towards self-government based on
viable territorial foundations has been abandoned, as have any prospects of a way
forward, a natural way forward it might be said, towards an independent State accepted
by all”113.
178. At that time, in 2000 and 2001, the Palestinian Authority was the target of attacks of
singular violence. The main infrastructure, often built with European aid, was hit: radio and television
installations, Gaza’s port and airport, public buildings, prisons and telephone and electricity cables
were badly damaged. According to an assessment by the European Commission, European aid worth
€13,851 million was reduced to nothing114. The Palestinian economy was strangled by constant
delays by Israel in paying taxes collected on behalf of the Palestinian Authority, and sometimes even
refusals to pay those taxes
179. Israel’s Third Redeployment did not take place, while the settlements and their access
roads continued to develop. The autonomy of the Palestinian Authority, which should have been as
broad as possible in Area A, was reduced to nothing by Israeli army intrusions. The deprivation of
liberty imposed on the President of the Palestinian Authority from the end of 2001 closed off any
possibility of resuming negotiations. In response to the mounting violence and following the Israeli
incursion inside the Jenin camp, in April 2002 the Security Council called for a fact-finding
commission to be set up115. Israel turned down the request.
180. From March 2002, Ariel Sharon launched “Operation Defensive Wall”, a decision that
involved building a barrier along a route that in part cut into the Occupied Palestinian Territory. That
structure was later declared illegal by the International Court of Justice in an Advisory Opinion.
Israel has nonetheless actively continued to build the wall116.
181. With the situation bogged down, in a speech on 24 June 2002 the new United States
President, George W. Bush, sought to launch a new peace initiative in this conflict: a Quartet
consisting of the United States, the European Union, Russia and the United Nations. It would produce
112 “Clinton Proposal on Israeli-Palestinian Peace”, [The Peace Puzzle: Appendices and Resources], The United
States Institute of Peace, 22 January 2013, Appendi[x] 19 (Ann. 32).
113 Alain Bockel, “Le pari perdu d’Oslo : le règlement du conflit israélo-palestinien dans l’impasse”, Annuaire
Français de Droit International, 2000, p. 136 [Translation by the Registry].
114 Jean Quatremer, “L’Europe chiffre les destructions israéliennes” (“Europe puts a figure on Israeli destruction”),
Libération, 22 January 2001 (Ann. 33).
115 Security Council resolution 1405 of 29 April 2002.
116 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), pp. 136-203.
- 61 -
a document known as the “Roadmap”, published on 30 April 2003117. The document was accepted
by the parties, albeit with reservations on the part of Israel. It was endorsed by the Security Council
on 19 November 2003118. Like the interim agreements of 1993 and 1995, this agreement envisaged
a phased process aimed at the coexistence of two viable democratic States. Parallel simultaneous
undertakings by both parties on security and institutions were intended to lead to progress. And an
independent evaluation and monitoring mechanism was to oversee the process.
182. Yet the vicious cycle of attacks and reprisals continued. Despite the Israelis’ reluctant
acceptance (with 14 reservations that completely undermined its underlying scheme), the new plan
was incompatible with Israel’s long-term project: “to draw the country’s borders itself, encompassing
the maximum amount of land for economic, security or ideological and religious reasons, and
excluding as many non-Jewish inhabitants as possible”119.
183. Running counter to those constructive attempts to resolve the conflict, Ariel Sharon then
opted for a unilateral policy with his decision to withdraw from Gaza. This consisted of a
redeployment of settlements with a view to complete separation from the Arab population. It
involved all the Jewish settlements in Gaza and also four small settlements in the north of the West
Bank wedged between areas of Palestinian population in the Jenin area. Announced many months in
advance, this withdrawal plan would ultimately be approved by the Quartet. However, the Quartet’s
approval was subject to conditions that were not complied with (no expansion of settlements in the
West Bank, the release of Palestinian prisoners and a slowing of construction of the separation wall).
The withdrawal would be carried out amid intense publicity in August 2005.
184. Although Jewish settlements were dismantled and the Israeli armed forces withdrew from
the Gaza Strip, this did not mean that the territory passed into genuine self-government. The Gaza
Strip had to remain free of weapons and the State of Israel retained control of the external land
boundary of the territory, completely dominated its airspace and continued its activities in the
maritime area. All communications with the outside were under Israeli control. At the insistence of
the United States, management of the border post with Egypt was conferred on the Palestinian
Authority. From December 2005, a 1 km-wide security zone was established in the north of the Gaza
Strip. It was fenced in and all movement within it was prohibited.
185. Although it had been acknowledged in the 1993 interim agreements that the West Bank
and Gaza formed a single territorial unit and that the two territories together constituted the
Palestinian entity, their physical separation and different situations vis-à-vis Israel have constantly
pushed them apart. The West Bank is a form of archipelago made up of multiple isolated fragments.
Gaza is a “prison island”120 sealed off by an electric fence.
186. From 2006 the increasing political influence in the territory of Gaza of Hamas, a
movement that does not recognize Israel, would be accompanied by rising violence. Gaza would also
be subject to an Israeli blockade from 2007. Since that time rockets fired from Gaza have unleashed
117 United Nations Security Council, A performance-base [sic] road map to a permanent two-State solution to the
Israeli-Palestinian conflict, 7 May 2003, S/2003/529, Annex (Ann. 34).
118 Security Council resolution 1515 of 19 November 2003.
119 Alain Bockel, “Le retrait israélien de Gaza et ses conséquences sur le droit international”, Annuaire Français
de Droit International, 2005, p. 19 [Translation by the Registry].
120 As put by Alain Bockel in “Gaza : le processus de paix en question”, Annuaire Français de Droit International,
2000, p. 175.
- 62 -
highly destructive Israeli bombings and raids with deadly consequences for the civilian population
of Gaza, even though the Gaza Strip is still part of the Occupied Palestinian Territory.
187. “Operation Cast Lead” carried out by Israel over Gaza from December 2008 to January
2009 was followed by “Operation Pillar of Defense” in 2012 and then “Protective Edge” from 8 July
to 26 August 2014. The latter, the harshest operation yet against the territory, claimed 1,500
Palestinian civilian dead and 12,000 wounded according to figures from the United Nations Office
for the Coordination of Humanitarian Affairs in the occupied Palestinian territories121. On 2 January
2015 Palestine deposited with the United Nations Secretary-General its instrument of accession to
the Statute of Rome establishing the International Criminal Court and seised that Court, requesting
an investigation into war crimes attributed to Israel.
188. The United States, which had played a constructive role in the few advances towards
peace in the early 2000s, was to play a negative role from 2017. This is when the United States
President, Donald Trump, saw fit to transfer the United States Embassy in Israel to Jerusalem,
recognizing the city as the capital of Israel. In doing so the United States Government lent legitimacy
to a claim by Israel hitherto condemned by the international community, and placed itself in breach
of international law that had been reaffirmed many times by the United Nations. In fact, in 1995 the
United States Congress had passed the Jerusalem Embassy Act, under which the Holy City was to
be recognized as the capital of the Jewish State and the United States Embassy moved to it122. On
13 December 2017 the Organisation of Islamic Cooperation denounced the 2017 implementation of
that plan as an attack on the historical, legal, natural and national rights of the Palestinian people123.
189. The ongoing deterioration in the situation means today that any prospect of peace has
reached the end of the road. Admittedly, the State of Palestine, proclaimed in 1988, was admitted as
a Member State of UNESCO in 2011 and recognized as a State by the United Nations General
Assembly on 29 November 2012, albeit as a non-member State124. However, it does not enjoy any
of the rights and powers of a State. It is systematically denied those rights and powers by Israel, the
occupying Power for 56 years. Going even further, Israel’s Minister for Defence [sic], Bezalel
Smotrich, passing through Paris on 21 March 2023, declared that the Palestinian people did not
exist125. In so doing he disavowed the letters of mutual recognition signed by Israel and the PLO on
9 September 1993126.
(b) An ongoing Israeli policy of settlement and repression
190. It followed from the rationale of the Oslo Accords and their stated objective of peace that
from the time of their signature there would be a reversal of Israeli settlement in the occupied
121 Laurent Trigeaud, “L’opération Bordure protectrice menée par Israêl dans la Bande de Gaza (8 juillet-26 août
2014)”, Annuaire français de droit international, 2014, pp. 171-194.
122 Jerusalem Embassy Act, 8 November 1995, Public Law 104–45, 104th Congress, Legislative History S. 1322,
Congressional Record, vol. 141, 1995 (Ann. 35).
123 “Final communique of the extraordinary Islamic summit conference to consider the situation in the wake of the
U.S. administration’s recognition of the city of al-Qods al-Sharif as the so-called capital of Israel, the occupying power,
and the transfer of the U.S. embassy to al-Qods”, Organisation of Islamic Cooperation, 13 December 2017, OIC/EXCFM/
2017/PAL/FC (Ann. 36).
124 United Nations General Assembly, resolution [67/19] of 29 November 2012.
125 Statement by the Israeli Minister for Finance, Belazel Smotrich, “Bezalel Smotrich, ministre ultranationaliste
israélien, poursuit ses diatribes antipalestiniennes depuis Paris” (“Bezalel Smotrich, an ultranationalist Israeli minister,
continues his anti-Palestinian diatribes from Paris”), Le Monde, 20 March 2023 (Ann. 37).
126 See Ann. 28.
- 63 -
territories. However, it was not expressly enshrined in the 1995 interim agreement that the peace
process would entail an immediate halt to all settlement. Israel then simply strengthened its hold.
Dividing the occupied territory into three areas has enabled it to retain control over a considerable
portion of that territory. Area A, in which the Palestinian Authority supposedly exercises control,
represents only 18 per cent of the area of the West Bank, whereas Area C, over which Israel has full
jurisdiction, represents 60 per cent of that territory, bearing in mind that Israeli control remains strong
over Area B, which includes the remainder.
191. Yet it was primarily by continuing to establish new settlements that Israel extended its
hold, at the same time as the Palestinian State was becoming a figment of the imagination. After the
failure of the meetings at Camp David in 2000 and Taba in 2001, it became clear that the territorial
basis of the Palestinian entity was unviable. At that time its territory was limited to less than 50 per
cent of the West Bank and to 60 per cent of the Gaza Strip. Most significantly, it was made up of a
myriad of parcels of land separated from each other and subject to varying status.
192. In the West Bank, particularly in Area C, settlement has soared considerably in
demographic terms since the Oslo Accords were signed. That increase has been accompanied by a
network of bypass roads criss-crossing the territory. “In a territory as constrained as the West Bank,
some 700 km of roads have been built, most of them after 1993, at the expense of agricultural land,
but Palestinians have nevertheless been barred from many segments of road reserved for the
settlers.”127
193. In Jerusalem, Israeli policy has consisted of revising the boundaries of the capital,
expanding them in the north as far as Ramallah, in the south up to but not including Bethlehem, and
in the east as far as Jericho. The threefold aim is to redraw the map of Jerusalem, fill in the areas not
yet inhabited by Jewish residents and cut East Jerusalem off completely from the West Bank.
194. In twenty years the number of settlers in the West Bank, including in East Jerusalem, has
increased considerably.
“Christian Salazar Volkmann, Director of the Field Operations and Technical
Cooperation Division of the Office of the High Commissioner for Human Rights, [stated
that from] 2012 to 2022, the population of Israeli settlers in the occupied West Bank,
including East Jerusalem, had grown from 520,000 to over 700,000.” 128
195. This all-out settlement has been accompanied by constant repression of the Palestinians.
It was placed on record by the Human Rights Council in a 2019 resolution:
“Deploring in particular the construction and expansion of settlements by Israel
in and around occupied East Jerusalem, including its so-called E-1 plan, which aims to
connect its illegal settlements around and further isolate occupied East Jerusalem, the
continuing demolition of Palestinian homes and eviction of Palestinian families from
the city, the revocation of Palestinian residency rights in the city, and ongoing settlement
127 Pierre Blanc “Palestine : géopolitique d’une violence territoriale”, Confluences Méditerranée, No. 86, Summer
2013, [i]R[e]MMO, L’Harmatan, p. 24 [Translation by the Registry].
128 United Nations, Human Rights Council, “Human Rights Council Hears that the Current Israeli Plan to Double
the Settler Population in the Occupied Syrian Golan by 2027 is Unprecedented, and that 700,000 Israeli Settlers Are Living
Illegally in the Occupied West Bank”, 28 March 2023 (Ann. 38).
- 64 -
activities in the Jordan Valley, all of which further fragment and undermine the
contiguity of the Occupied Palestinian Territory,
Expressing grave concern at the continuing construction by Israel of the wall
inside the Occupied Palestinian Territory, including in and around East Jerusalem, in
violation of international law, and expressing its concern in particular at the route of the
wall in departure from the Armistice Line of 1949, which is causing humanitarian
hardship and a serious decline in socioeconomic conditions for the Palestinian people,
fragmenting the territorial contiguity of the Territory and undermining its viability,
creating a fait accompli on the ground that could be tantamount to de facto annexation
in departure from the Armistice Line of 1949, and making the two-State solution
physically impossible to implement,
Deeply concerned that the wall’s route has been traced in such a way to include
the great majority of the Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem,
Gravely concerned at all acts of violence, destruction, harassment, provocation
and incitement by extremist Israeli settlers and groups of armed settlers in the Occupied
Palestinian Territory, including East Jerusalem, against Palestinian civilians, including
children, and their properties, including homes, agricultural lands and historic and
religious sites, and the acts of terror carried out by several extremist Israeli settlers,
which are a longstanding phenomenon aimed at, inter alia, displacing the occupied
population and facilitating the expansion of settlements,
Expressing concern at ongoing impunity for acts of settler violence against
Palestinian civilians and their properties, and stressing the need for Israel to investigate
and to ensure accountability for all of these acts”129.
196. The situation imposed on the Palestinian people in the territories occupied by Israel has
been addressed in detailed reports by various organs of the United Nations. The largest is the Report
of the Independent International Commission of Inquiry on the Occupied Palestinian Territory,
including East Jerusalem, and Israel, in accordance with Human Rights Council resolution S-30/1130.
197. In the recent resolution by which it made the present request for an advisory opinion to
the Court, the General Assembly itself took pains to set out in detail the serious human rights
violations and grave breaches of international humanitarian law found to have occurred in the
territories occupied by Israel. It summarized those violations and called for accountability 131.
198. That assessment reflects the current situation in the Palestinian territories under Israeli
military occupation. The outcome of a situation that has deteriorated over more than a century, it
needs to be considered in light of the law applicable to it. It is therefore necessary at this stage to
identify which norms characterize the facts of the situation and to assess those facts in light of the
legal régime established by contemporary international law.
129 United Nations, Human Rights Council, Resolution 40/24, 22 March 2019, A/HRC/RES/40/24 (Ann. 39).
130 United Nations General Assembly, Report of the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel, 14 September 2022, A/77/328 (Ann. 40).
131 See Ann. 1.
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III. THE LAW APPLICABLE TO THE SITUATION PUT BEFORE THE COURT
199. Since its creation, Israel has demanded a form of exceptionality vis-à-vis the international
law that governs global society. However, the exceptionality thus claimed equates in reality to gross
violations of the rights of Palestinians as derived from the application of positive international law.
After commenting on the need to address the issues on the basis of intertemporal law in this case, in
which the facts have occurred over a period of more than a century, we shall catalogue all the
provisions of international law which must be applied in resolving the dispute (A). We shall then
focus more specifically on the right of peoples to self-determination, whose violation by Israel is
central to this matter (B).
200. The conduct, first of the Zionist movement before and during the British Mandate for
Palestine and then of the State of Israel from its declaration of independence on 14 May 1948, extends
over a very long period. In order to evaluate that conduct in terms of compliance with the law it is
therefore necessary to take account of the state of the law at the time of the facts. This is the principle
of intertemporal law. Highlighted by the arbitrator Max Huber in the Island of Palmas case, the
principle requires a judicial fact to be appreciated “in the light of the law contemporary with it, and
not of the law in force at the time when a dispute in regard to it arises or falls to be settled”132.
201. In the framing of the question it has put to the Court, the General Assembly has indeed
limited the question to “the Palestinian territory occupied by Israel since 1967”. The situation in that
territory must therefore be assessed on the basis of the body of general international law, human
rights and humanitarian law in cases of armed conflict, as established since 1967. The origins of the
ongoing conflict nevertheless date back to a more distant past, when the League of Nations Mandates
were created. We will therefore pay particular attention to the law of that period to ascertain when
these ongoing violations of international law began.
A. The whole body of international law applicable to the questions posed
202. The settlement of the Palestinian question requires the application of international law.
All States are subject to general international law under the United Nations Charter. Three
fundamental branches of that law are at play here: the law of peace, international humanitarian law
in the event of armed conflict and human rights.
203. The law of peace was codified by the United Nations Charter. The key elements of this
law are the principles of the non-use of force, territorial integrity and the right of peoples to selfdetermination.
The prohibition of the use of force applies to Israel as a Member State of the United
Nations. Under that principle any military operation by one State against another State or against
another people gives rise to condemnation unless it is one of the only two exceptions to that
prohibition, namely self-defence and operations conducted by the United Nations under Chapter VII
of the Charter. This rule entails the rule of respect for territorial integrity, which prohibits a State
from acquiring by means of annexation any territory other than the territory recognized as being
within its borders as defined when it joined the United Nations133. It also prohibits a State from
occupying the territory of another State or another people by military means even without an explicit
annexation. Supplementing the provisions of the Charter, on 24 October 1970 the General Assembly
adopted resolution 2625 (XXV), entitled Declaration on Principles of International Law concerning
132 Island of Palmas (Netherlands v. United States of America), PCA No. 1925-01, Award of 4 April 1928, p. 845.
133 Art. 2, para. 4, of the Charter of the United Nations: “All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”
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Friendly Relations and Co-operation among States, in which it emphasized that no territorial
acquisition obtained through the threat or use of force would be recognized as legal. The law of peace
also encompasses the right of peoples to self-determination, which will be expanded upon separately.
204. Humanitarian law in the event of armed conflict came into being as early as the nineteenth
century in order to limit the tragic consequences of conflict and to protect civilian populations in
times of war. Although Israel has developed numerous specious arguments to evade application of
humanitarian law, the Court resolved the issue of its applicability to the Occupied Palestinian
Territory in its 2004 Advisory Opinion. It held:
“In view of the foregoing, the Court considers that the Fourth Geneva Convention
is applicable in any occupied territory in the event of an armed conflict arising between
two or more High Contracting Parties. Israel and Jordan were parties to that Convention
when the 1967 armed conflict broke out. The Court accordingly finds that that
Convention is applicable in the Palestinian territories which before the conflict lay to
the east of the Green Line and which, during that conflict, were occupied by Israel, there
being no need for any enquiry into the precise prior status of those territories.”134
205. Lastly, as regards human rights, even though Israel is a party to both the United Nations
Covenants, on Civil and Political Rights and on Economic, Social and Cultural Rights, here too it
has disputed that these Conventions apply in the Occupied Palestinian Territory, claiming that human
rights instruments are intended only to protect citizens against their own governments in times of
peace. The Court dismissed that thesis and held: “In conclusion, the Court considers that the
International Covenant on Civil and Political Rights is applicable in respect of acts done by a State
in the exercise of its jurisdiction outside its own territory.”135 The Court made the same finding in
relation to the Covenant on Economic, Social and Cultural Rights136.
206. Following on from that finding, the Independent International Commission of Inquiry on
the Occupied Palestinian Territory, including East Jerusalem, and Israel, addressed that point on the
international law applicable to the occupation in the report it submitted to the General Assembly on
14 September 2022. It recalled that:
“The Occupied Palestinian Territory, including East Jerusalem and Gaza, and the
occupied Syrian Golan are currently under belligerent occupation by Israel, to which
international humanitarian law applies concurrently with international human rights
law.”137
207. Accordingly, the body of international law on the law of peace, humanitarian law in the
event of armed conflict and human rights therefore represents all the law to be applied in order to
answer the questions put to the Court by the General Assembly. We shall now look more specifically
at the right of peoples to self-determination, mindful that the very foundations of this right are called
into question by the policies and practices of Israel in the Occupied Palestinian Territory.
134 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 177, para. 101.
135 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 180, para. 111.
136 Ibid., pp. 180-181, para. 112.
137 See Ann. 40, para. 7.
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B. The right of peoples to self-determination
208. What is specific about the case of the Palestinian people in relation to the norm
comprising the right of peoples to self-determination is that it holds that right under two separate and
mutually reinforcing sources of law. The Palestinian people benefited from the first specific
articulation of that right in international law in the League of Nations Covenant. At that time it was
part of a lex specialis in favour of certain peoples (1). The Palestinian people also benefited from the
enhanced and generalized articulation of the right under the auspices of the United Nations. There
was now a lex generalis on the matter (2).
1. The right of peoples to self-determination enjoyed by the peoples subject to United Nations
A Mandates
209. It has been recalled above that the A Mandates established by the Covenant of the League
of Nations for a number of peoples that had belonged to the Ottoman Empire had been conceived as
transitional régimes intended to enable the peoples concerned to move to independence. This
followed from Article 22 of the Covenant:
“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.”138
210. While it would be incorrect to say that this is when the right of peoples to
self-determination received recognition as a norm of general international law applicable to all
colonized peoples, it must nevertheless be acknowledged that a first breach had opened in the régime
of domination that had hitherto formed part of the international system. Under the decisive influence
of President Wilson, a requirement was now emerging that the interests and wishes of the populations
concerned be taken into account. The A Mandates then created were envisaged as a step on the way
to decolonization. That was indeed the Court’s interpretation in its Advisory Opinion on the wall
built by Israel in the Occupied Palestinian Territory. In 2004,
“[t]he Court [recalled] that in 1971 it emphasized that current developments in
‘international law in regard to non-self-governing territories, as enshrined in the Charter
of the United Nations, made the principle of self-determination applicable to all [such
territories]’. The Court went on to state that ‘These: developments leave little doubt that
the ultimate objective of the sacred trust’ referred to in Article 22, paragraph 1, of the
Covenant of the League of Nations ‘was the self-determination. .. of the peoples
concerned’ (Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), Advisory Opinion, I. C. J. Reports 1971, p. 31, paras. 52-53).”139
211. Although the requirement that peoples should gain independence was enshrined in law
only for certain territories, those subject to Ottoman colonization, it was nonetheless clearly
established:
138 See supra, paras. 41-51.
139 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 136, para. 88.
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“The Mandate must be considered in the light of the Covenant of the League of
Nations. One of the primary responsibilities of the Mandatory Power was to assist the
peoples of the territory to achieve full self-government and independence at the earliest
possible date. Article 22, paragraph 1, of the Covenant stipulated that the ‘well-being
and development of such peoples form a sacred trust of civilization’. The only limitation
imposed by the League’s Covenant upon the sovereignty and full independence of the
people of Palestine was the temporary tutelage entrusted to the Mandatory Power.”140
212. That system, which guaranteed the attainment of independence at the end of a transitional
period, was the precursor of what was to become a fundamental norm of international law whereby
the right of peoples to self-determination applies to all territories subject to foreign domination.
2. The right of peoples to self-determination within the United Nations framework
213. The right of peoples to self-determination is today a core norm of international law. The
texts on which the right is founded have the broadest possible legal scope (a). The norm has been
confirmed by the jurisprudence of the Court on many occasions (b). It can be defined precisely on
the basis of the various aspects of its content (c).
(a) The texts on which the right of peoples to self-determination are founded
214. This right is enshrined in the Charter of the United Nations, in which it is mentioned
twice, in Article 1, second paragraph, and in Article 55:
“Article 1
The Purposes of the United Nations are:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
To develop friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples, and to take other appropriate
measures to strengthen universal peace”. [(Emphasis added)]
“Article 55
With a view to the creation of conditions of stability and well-being which are
necessary for peaceful and friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, the United Nations shall
promote:
a. higher standards of living, full employment, and conditions of economic and social
progress and development;
b. solutions of international economic, social, health, and related problems; and
international cultural and educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion.” [(Emphasis added)]
140 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), separate opinion of Judge Elaraby, p. 246.
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215. The text of the Charter was, however, not free of contradictions, and its affirmation of the
principle of the right of peoples to self-determination had not yet given rise to a true right to
decolonization. Chapter XI of the Charter is in fact entitled “Declaration Regarding [Non]-Self-
Governing Territories” and contains no obligation on the colonizing States to grant independence to
the colonized peoples. They merely have a duty, under Article 73,
“to develop self-government, to take due account of the political aspirations of the
peoples, and to assist them in the progressive development of their free political
institutions, according to the particular circumstances of each territory and its peoples
and their varying stages of advancement”.
216. It was the liberation struggles embarked upon by certain peoples (those of Viet Nam and
Algeria in particular) and the support they would garner within the United Nations General Assembly
that led to much more exacting content being given to the right of peoples to self-determination and
to a condemnation of colonization. The key moment came in 1960 when the United Nations General
Assembly adopted the Declaration on the granting of independence to colonial countries and
peoples141. It presents the right to decolonization as an absolute principle binding on all States and
covering all colonized territories, irrespective of the legal status given to them by the colonizer. The
Court later confirmed that the declaration provided a basis for the right:
“The Court considers that, although resolution (XV) is formally a
recommendation, it has a declaratory character with regard to the right to selfdetermination
as a customary norm, in view of its content and the conditions of its
adoption.”142
217. To give effect to that principle, in 1961 the General Assembly set up the Decolonization
Committee, known as the Committee of Twenty-Four or Special Committee, with the task of
implementing the Declaration in practice. Ten years later the Declaration was supplemented by other
significant resolutions. Resolution 2621 of 12 October 1970 established a programme of action for
the full implementation of the Declaration, and resolution 2625 of 24 October 1970 codified the
seven principles of international law concerning friendly relations and co-operation among States,
which include the principle of equal rights and self-determination of peoples. Lastly, resolution 2649
of 30 November 1970 emphasized the importance of the universal realization of the right of peoples
to self-determination and of the speedy granting of independence to colonial countries and peoples
for the effective guarantee and observance of human rights.
218. The right of peoples to self-determination was then strengthened and acquired treaty force
when it was included in the two United Nations Covenants, both adopted on 16 December 1966, the
Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights.
The right is articulated in the same terms in both, which read as follows:
“Article 1
1. All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.
141 General Assembly resolution 1514 of 14 December 1960.
142 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019 (I), p. 132, para. 152.
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2. All peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international economic cooperation,
based upon the principle of mutual benefit, and international law. In no case
may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, 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 the United Nations.” [(Emphasis
added)]
219. It is apparent from this body of law that the right of peoples to self-determination has the
value of a norm of positive international law. Formed as custom, this norm has been confirmed by
treaty. It was cited as an example of a peremptory norm by the International Law Commission in its
report on the law of treaties143. It was also characterized as a peremptory norm of general
international law by the Arbitration Commission of the Conference on Yugoslavia144.
220. Such is the importance of the right to self-determination that the United Nations General
Assembly has reaffirmed the legitimacy of national liberation struggles conducted by all means
necessary. This emerges from resolution 3070 of 30 November 1973, which affirms: “the legitimacy
of the peoples’ struggle for liberation from colonial and foreign domination and alien subjugation by
all available means, including armed struggle”145.
221. Violation of the right of peoples to self-determination constitutes an international crime,
as was recognized in United Nations General Assembly resolution 2621 in 1970 in which the General
Assembly declared:
“the further continuation of colonialism in all its forms and manifestations a crime
which constitutes a violation of the Charter of the United Nations and the Declaration
on the Granting of Independence to Colonial Countries and Peoples and the principles
of international law”146.
222. We would add here that the right to decolonization is inherent to the very existence of a
people. Because a people’s freedom is an intrinsic part of its destiny, it exists as a potential before it
becomes a reality. It therefore cannot be granted by anyone. It is only ever recovered, because it must
be given back if it has been confiscated. That is why legal instruments recognizing the independence
of a people hitherto dominated by a colonizer are purely declaratory and do not create rights. That
consideration is very important in any process of decolonization. The right of the colonized people
is innate and as a matter of principle non-negotiable.
143 Yearbook of the International Law Commission, 1966, Vol. II, p. [248].
144 Conference for Peace in Yugoslavia, Arbitration Commission, Opinion No. 1, 1992, p. 3.
145 United Nations General Assembly resolution 3070 of 30 November 1973.
146 United Nations General Assembly resolution 2621 of 12 October 1970.
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(b) Confirmation of the right of peoples to self-determination in international jurisprudence
223. The International Court of Justice has consistently reaffirmed in a series of judgments
and advisory opinions that the right of peoples to self-determination is a norm of positive law, and
has on occasion conferred on it erga omnes legal validity.
224. It did so on the occasion of the 1971 Opinion on the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970)147, in which the Court recalled that the right of peoples clearly
included the inhabitants of the mandated territories148. It also stated:
“In the view of the Court, the termination of the Mandate and the declaration of
the illegality of South Africa’s presence in Namibia are opposable to all States in the
sense of barring erga omnes the legality of a situation which is maintained in violation
of international law”149.
225. In its Western Sahara Opinion rendered in 1975 the Court, recalling the terms of
resolution 1514, the Declaration on the Granting of Independence to Colonial Countries and Peoples,
stated that “the application of the right of self-determination requires a free and genuine expression
of the will of the peoples concerned”150.
226. In its Judgment of 30 June 1995 in the East Timor case, the Court held that the right of
peoples to self-determination is an essential principle of contemporary international law, and
reiterated its erga omnes character:
“In the Court’s view, Portugal’s assertion that the right of peoples to selfdetermination,
as it evolved from the Charter and from United Nations practice, has an
erga omnes character, is irreproachable. The principle of self-determination of peoples
has been recognized by the United Nations Charter and in the jurisprudence of the Court
(see Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J. Reports 1971, pp. 31-32, paras. 52-53; Western Sahara,
Advisory Opinion, I.C.J. Reports 1975, pp. 31-33, paras. 54-59); it is one of the essential
principles of contemporary international law.”151
227. In the Advisory Opinion of 9 July 2004 on the Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, the Court attached great importance to the right of
peoples to self-determination. It declared, in particular, in relation to the circumstances in which the
wall had been built: “That construction, along with measures taken previously, thus severely impedes
the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of
147 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, para. 52.
148 Ibid., p. 33, para. 59.
149 Ibid., p. 56, para. 126.
150 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 32, para. 55.
151 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29.
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Israel’s obligation to respect that right.”152 It also reiterated that the right of peoples to selfdetermination
creates obligations erga omnes:
“[T]he Court has already observed (paragraph 88 above) that in the East Timor
case, it described as ‘irreproachable’ the assertion that ‘the right of peoples to selfdetermination,
as it evolved from the Charter and from United Nations practice, has an
erga omnes character’ (I.C.J. Reports 1995, p. 102, para. 29). The Court would also
recall that under the terms of General Assembly resolution 2625 (XXV), already
mentioned above (see paragraph 88),
‘Every 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 to render
assistance to the United Nations in carrying out the responsibilities
entrusted to it by the Charter regarding the implementation of the
principle . . . ’”153.
228. Lastly, in the recent Opinion rendered in 2019 on the Legal Consequences of the
Separation of the Chagos Archipelago from Mauritius in 1965, the Court emphasized the defining
moment represented by the adoption of United Nations General Assembly resolution 1514:
“The Court considers that, although resolution 1514 (XV) is formally a
recommendation, it has a declaratory character with regard to the right to selfdetermination
as a customary norm, in view of its content and the conditions of its
adoption. The resolution was adopted by 89 votes with 9 abstentions. None of the States
participating in the vote contested the existence of the right of peoples to selfdetermination.
Certain States justified their abstention on the basis of the time required
for the implementation of such a right.”
“The wording used in resolution 1514 (XV) has a normative character, in so far
as it affirms that ‘[a]ll peoples have the right to self-determination’. Its preamble
proclaims ‘the necessity of bringing to a speedy and unconditional end colonialism in
all its forms and manifestations’ and its first paragraph states that ‘[t]he subjection of
peoples to alien subjugation, domination and exploitation constitutes a denial of
fundamental human rights [and] is contrary to the Charter of the United Nations’. This
resolution further provides that ‘[i]mmediate steps shall be taken, in Trust and Non-
Self-Governing Territories or all other territories which have not yet attained
independence, to transfer all powers to the peoples of those territories, without any
conditions or reservations, in accordance with their freely expressed will and desire’”154.
Referring to the international covenants that form the treaty foundation of the right of peoples to selfdetermination,
it adds:
“Article 1, common to the International Covenant on Civil and Political Rights
and to the International Covenant on Economic, Social and Cultural Rights, adopted on
16 December 1966, by General Assembly resolution 2200 A (XXI), reaffirms the right
of all peoples to self-determination, and provides, inter alia, that:
152 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 184, para. 122.
153 Ibid., p. 199, para. 156.
154 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019 (I), pp. 132-133, paras. 152 and 153.
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‘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 the United Nations.’”155
229. It can be seen that the highest court in the international system has, in consistent
jurisprudence, confirmed the normative force of the right of peoples to self-determination, a cardinal
principle of positive international law.
(c) Content of the right of peoples to self-determination
230. The norm of the right of peoples to self-determination presupposes that it is possible to
identify the human groups that hold that right. It is also necessary to clarify what is meant by
“self-determination” for a people and what are the various options available to it in order to realize
that right. The territory allotted to that people also needs to be identified, as well as the rights it has
over the natural resources that come from that territory.
Identification of a people
231. Although the concept of a people as a human entity enjoying the right to independence
may be problematic in certain circumstances, not least because the independence claimed by a human
group may conflict with the principle of the territorial integrity of States156, that scenario does not
arise in the case of colonial situations. Indeed, the United Nations General Assembly resolution that
forms the basis of the right (1514) recognizes the right to self-determination for peoples subjected to
“alien subjugation, domination and exploitation”. The criterion that there must be domination or
exploitation is therefore central. It applies in conjunction with the fact that the people in question has
a status separate and distinct from that of the colonizing State, and is culturally and ethnically
different from the people of that State157 and subjected by that State to an occupation that is
sometimes imposed by means of a war of conquest.
232. The United Nations clarified that point in a resolution of 1970, affirming that the
independence of a colonized territory did not impair the territorial integrity of the administering
Power:
“The territory of a colony or other Non-Self Governing Territory has, under the
Charter, a status separate and distinct from the territory of the State administering it;
and such separate and distinct status under the Charter shall exist until the people of the
colony or Non-Self Governing Territory have exercised their right of self-determination
in accordance with the Charter, and particularly its purposes and principles.”158
155 Ibid., p. 133, para. 154.
156 As the African Commission on Human and Peoples’ Rights observed and as noted in para. 96 above.
157 Reference to ethnically and culturally separate territories was made by the General Assembly as early as 1960
in resolution 1541 of 15 December 1960: “Prima facie there is an obligation to transmit information in respect of a territory
which is geographically separate and is distinct ethnically and/or culturally from the country administering it.”
158 United Nations General Assembly, resolution 2625 of 24 October 1970, Declaration on Principles of
International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the
United Nations.
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233. There are therefore several criteria for determining whether a human group is among
those enjoying the right of peoples to self-determination, the most important of which are that the
colonized people must be ethnically and culturally distinct from the colonizer and that it must be
subject to domination.
234. Furthermore, the right of peoples to self-determination may not be denied or delayed on
the pretext of considerations relating to their development. Anxious to put an end to the successive
régimes that had postponed self-determination over the years in reliance on the argument of a lag in
development (colonialism itself before the United Nations existed; the Mandate system under the
League of Nations; the régime of Non-Self-Governing or Trust Territories in accordance with the
United Nations Charter), the General Assembly declared in resolution 1514 of 14 December 1960:
“Inadequacy of political, economic, social or educational preparedness should never serve as a
pretext for delaying independence.”159
The options made available through self-determination
235. Self-determination means for a people that it has complete freedom to choose its political
destiny. It was that concept of freedom that led the United Nations General Assembly to clarify the
various ways in which the people of a non-self-governing territory can be regarded as having
exercised the right in question. It did so in resolution 1541 of 15 December 1960, in the following
terms:
“Principle VI
A Non-Self Governing Territory can be said to have reached a full measure of
self-government by:
(a) Emergence as a sovereign independent State;
(b) Free association with an independent State; or
(c) Integration with an independent State.”160
However, that list is not exhaustive. The political imagination can be given free rein. It might lead,
for example, to a form of shared sovereignty or to varying degrees of internal self-government.
Needless to say, the contemporary international law of decolonization, which has emerged from the
work of the General Assembly, gives precedence to independence.
The right of return for the expelled populations
236. This is a fundamental component of the right of peoples to self-determination.
Independently of the individual right proclaimed as a human right whereby anyone who has left their
country is entitled to return to it, the right of return is exercised collectively by a people that has
suffered forcible removals, being as it is a precondition for realization of the right to selfdetermination.
The United Nations has made it an essential element of its regular expressions of
opinion on the inalienable rights of the Palestinian people. After resolution 194 of 11 December
159 United Nations General Assembly, resolution 1514 of 14 December 1960.
160 United Nations General Assembly, resolution 1541 of 15 December 1960: Principles which should guide
Members in determining whether or not an obligation exist to transmit the information called for under Article 73 e of the
Charter.
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1948, the resolution forming the basis of the right of return for Palestinians, the United Nations
organs have maintained a consistent position of reaffirming that right161.
The rights of a people to the integrity of its territory and freedom to dispose of its
natural resources
237. The right to self-determination must be exercisable over the entirety of a non-selfgoverning
territory. No solution that entails division would be valid under international law. The
International Court of Justice stated this fact in its Advisory Opinion of 25 February 2019 on the
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. After
recalling that General Assembly resolution 1514 had a normative character, the Court noted that
paragraph 6 of the resolution provides that “[a]ny attempt aimed at the partial or total disruption of
the national unity and the territorial integrity of a country is incompatible with the purposes and
principles of the Charter of the United Nations”162. It further clarified “that any detachment by the
administering Power of part of a non-self- governing territory, unless based on the freely expressed
and genuine will of the people of the territory concerned, is contrary to the right to selfdetermination”
163. No detachment of any part of a territory is therefore authorized by the law of
decolonization.
238. In respect of natural wealth, the right to self-determination goes hand in hand with an
economic component: the right of peoples over their natural resources. That right was affirmed in
1962 by General Assembly resolution 1803164. It is held to be an essential element of the right of
peoples to self-determination. Its role is to preserve the future rights of peoples under domination
and to prevent any pre-emancipation appropriation of resources by the colonizer.
239. It is now necessary to determine in what respects the body of norms set out above,
dominated as it is by the peremptory norm that is the right of peoples to self-determination, has been
applied or violated by the policies and practices of Israel in the Palestinian territory occupied since
1967.
IV. ISRAEL’S REPEATED VIOLATION OF THE RIGHT TO SELF-DETERMINATION OF THE
PALESTINIAN PEOPLE AND THE MEANS SYSTEMATICALLY EMPLOYED TO IMPEDE
REALIZATION OF THAT RIGHT
240. The General Assembly has specific competence in matters of decolonization, as the Court
recalled in its Opinion of 25 February 2019 when examining another instance of incomplete
decolonization: “The modalities necessary for ensuring the completion of the decolonization of
Mauritius fall within the remit of the United Nations General Assembly, in the exercise of its
functions relating to decolonization.”165 It is in the exercise of that competence that the United
Nations General Assembly has sought enlightenment on the questions posed in the request for an
advisory opinion to which these written observations relate. In order to answer those questions, the
161 See United Nations General Assembly, resolution 2535 B (XIV) of 10 December 1969.
162 [Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019 (I)], p. 133, para. 153.
163 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.
164 United Nations General Assembly resolution 1803 of 14 December 1962.
165 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019 (I), p. 139, para. 179.
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Court is required to rule on Israel’s practices and policies in the Palestinian territory occupied since
1967. The legal characterization that we shall endeavour to establish in this part is therefore of the
acts and conduct of the Jewish State confined to that period.
241. Nevertheless, as made clear in the contextual account presented above, the military
occupation of Palestinian territory undertaken by Israel in 1967 and uninterrupted ever since, and all
the acts that have accompanied that occupation, have been merely a further stage in a continuous
process that had begun before that time, a process comprising the ongoing, organized violation of
the central norm of international law that is the right of the Palestinian people to self-determination.
All the violations committed in connection with the Israeli-Palestinian conflict have been or still are
today secondary violations stemming from that principal violation166.
242. When, in 1967, Israel waged the Six-Day War that would enable it to occupy the West
Bank and Gaza, the right of the Palestinian people to emancipation was already under severe threat
and the obstacles to its attainment had been mounting for several decades. We shall therefore
demonstrate first how the independence of Palestine was rendered impossible as soon as the right of
Palestinians to take control of their destiny was formulated (A), before then examining at greater
length the situation put before the Court. That situation is characterized by illegal measures by means
of which Israel is continuing to frustrate the right of the occupied people to self-determination (B).
However, as recalled above, the lawfulness of each aspect of a situation must be assessed according
to the law in force at the time it arose167.
A. How the stage was set for impeding the right of self-determination
of the Palestinian people
243. The long history of the Palestinian people’s inability to gain independence has been
characterized by the recurring contradiction between, on the one hand, the advances made in
affirming the right of peoples to self-determination that have resulted from the development of
international law, and, on the other, Israel’s deployment of multiple violations of that international
law with the aim of frustrating the independence of Arab Palestine.
244. It has been shown above that, even before the League of Nations Mandate for Palestine
was conferred upon it, Great Britain had made a perilous commitment to the Zionist Organization by
professing itself favourable to the establishment of a National Home for the Jewish People in
Palestine168. That position, expressed by Lord Balfour in 1917, was initially that of a British politician
speaking in his personal capacity. It was subsequently taken up by the authorities of Great Britain,
even though that State had never held any rights over the territory of Palestine, then under Ottoman
administration.
245. Notwithstanding Zionist ambitions and the support they were being afforded by the
British authorities at the time, the right of the Palestinian people to self-determination came into
being on 28 June 1919 by virtue of Article 22, paragraph 4, of the Covenant of the League of Nations
166 In this part, the Organisation of Islamic Cooperation has not set out to provide the Court with an exhaustive
survey of all the violations of international rules committed by Israel in the Occupied Palestinian Territory. It will simply
highlight a number of eloquent examples illustrating Israel’s refusal to apply the norms of international law in force and
showing the means that have been employed to make it impossible for the Palestinian people to exercise its right of selfdetermination.
167 See para. 200 above.
168 See paras. 28-40 above.
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incorporated in the Treaty of Versailles169. This right was then in its infancy. It was drafted with a
small number of specific peoples in mind, under the influence of the liberal aspirations of the United
States President Woodrow Wilson170. The essence of self-determination is nevertheless clearly
present. For the communities concerned, “their existence as independent nations [could] be
provisionally recognized . . . until such time as they [were] able to stand alone”. Furthermore, “[t]he
wishes of these communities [had to] be a principal consideration in the selection of the Mandatory”.
246. Three [weeks] after it was adopted, that provision was the subject-matter of the first
breach of the right of the Palestinian people to self-determination. Indeed, the Mandate for Palestine
was conferred on Great Britain on 24 July [19]19 without consultation of the population of Palestine.
The Mandate was given to Great Britain following strong representations by the British and
bargaining between the great Powers. It was beyond doubt that had the population of Palestine (of
which Arab Palestinians then comprised 91 per cent) been consulted, it would have vetoed the
selection of Great Britain as the Mandatory, aware as it was of that great Power’s support for the
Zionist designs on its country.
247. The holders of League of Nations Mandates were not granted sovereignty over the
territories under their custody. The promise of independence made to the peoples placed under A
Mandates had the consequence that those peoples were already considered to be subjects of
international law and were by virtue thereof holders of sovereignty, although not in a position to
exercise it during the period of the Mandate171. This was confirmed by the Court in respect of the
Mandate for South West Africa: “The terms of this Mandate, as well as the provisions of Article 22
of the Covenant and the principles embodied therein, show that the creation of this new international
institution did not involve any cession of territory or transfer of sovereignty to the Union of South
Africa.” 172 Formulated in relation to the League of Nations “C” Mandates, this dictum of the Court
applied a fortiori to the category A Mandates, for which the prospect of independence was explicitly
envisaged.
248. Although the peoples placed under Mandate were not yet in a position to exercise
sovereignty, they were recognized as having the potential for sovereignty. Only the exercise of that
sovereignty was postponed. This was because, in general, “[t]he Mandatory Power, as such, was not
the sovereign of the territory. It had no right of disposition, no jus disponendi: it was merely a
Mandatory on behalf of the League”173.
249. It should also be noted that the Mandate for Palestine provided in Article 5 for the
protection of territorial integrity: “The Mandatory shall be responsible for seeing that no Palestine
territory shall be ceded or leased to, or in any way placed under the control of, the Government of
any foreign Power.” That guarantee was given to “Palestine”, that is to say, to a territory and to a
people that occupied it. In 1922, that people was the Arab people that represented 91 per cent of the
population. It was therefore the Arab people that was protected against “the control of . . . any foreign
Power”. Once again, the A Mandates were forerunners of what would later become, in expanded
169 “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.”
170 See para. 43 et seq. above.
171 To that effect, see Jean Salmon, “La proclamation de l’État palestinien”, Annuaire français de droit
international, 1988, p. 37 et seq., in particular p. 55.
172 International Status of South West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 132.
173 Ibid., Advisory Opinion of 11 July 1950, separate opinion of Judge Read, p. 168.
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form and with universal scope, the fundamental norm that is the right of peoples to selfdetermination.
250. Such was Great Britain’s awareness of its duty towards the Arab people of Palestine in
that respect that, in its White Paper of 17 May 1939174, it envisaged the establishment of an
independent Palestinian State within 10 years and the limitation of Jewish immigration to 75,000
people a year. However, overwhelmed by the strength of the Zionist demands that it had itself
encouraged, the mandatory Power could do nothing to counter the prevailing cycle of confrontation.
251. The legal foundations of the right of the Palestinian people to independence had not
changed in the 25 years of Great Britain’s chaotic exercise of its Mandate for Palestine. However,
the de facto situation created in Palestine fundamentally jeopardized any possibility of realizing that
right. No longer able to sustain that contradiction, which had led to severe violence on the ground,
the mandatory Power transferred to the United Nations a situation at boiling point.
252. That was the moment when, on 29 November 1947, in the circumstances related above175,
the General Assembly adopted a resolution recommending a plan of partition for Palestine
accompanied by a proposed corpus separatum for Jerusalem176. By the time this issue came back to
the United Nations General Assembly, the emancipation promised to the Arab people of Palestine
since 1922 had been fettered by a de facto situation long-encouraged by the mandatory Power: the
advancement and political and military organization of the Jewish population in Palestine. However,
the right of the Palestinian people to self-determination in its territory had not gone away. It had not
renounced that right by any agreement enforceable against it. No norm of international law had arisen
to contradict the principle articulated in the League of Nations Covenant. On the contrary, under the
Trusteeship system, the United Nations then took up the promise of independence made to the
peoples concerned, as was confirmed by the Court when it was called upon to examine the Mandate
for South West Africa: “It obviously was the intention to safeguard the rights of States and peoples
under all circumstances and in all respects, until each territory should be placed under the Trusteeship
System.”177
253. Did the advent of General Assembly resolution 181 of 27 November 1947 change the
situation legally in any way? Put otherwise, was that resolution such as to modify the Palestinian
people’s inherent right, as endorsed by the Covenant of the League of Nations, to self-determination
in the whole of its territory? The answer is that it was not, because, although the General Assembly
had gradually been invested with a certain responsibility for decolonization, that fact clearly could
not permit it to exercise powers of disposal over a territory that had been colonized, and then placed
under a Mandate, by removing part of that territory from the formerly dominated people. Nothing in
the Charter of the United Nations gives such powers to any organ of the Organization. It is therefore
necessary to analyse the formal aspects of the General Assembly resolution and to consider whether
it was capable of serving as the basis for obligations.
174 See Ann. 10.
175 See paras. 86-100 above.
176 See Ann. 12.
177 International Status of South West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 134.
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254. According to the dominant school of academic thought, resolutions of the General
Assembly are not binding. This is borne out by the provisions of the Charter on the powers of that
organ:
“Article 10
The General Assembly may discuss any questions or any matters within the scope
of the present Charter or relating to the powers and functions of any organs provided
for in the present Charter, and, except as provided in Article 12, may make
recommendations to the Members of the United Nations or to the Security Council or
to both on any such questions or matters.
Article 11
1. The General Assembly may consider the general principles of co-operation in
the maintenance of international peace and security, including the principles governing
disarmament and the regulation of armaments, and may make recommendations with
regard to such principles to the Members or to the Security Council or to both.
The General Assembly may discuss any questions relating to the maintenance of
international peace and security brought before it by any Member of the United Nations,
or by the Security Council, or by a state which is not a Member of the United Nations
in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may
make recommendations with regard to any such questions to the state or states
concerned or to the Security Council or to both. Any such question on which action is
necessary shall be referred to the Security Council by the General Assembly either
before or after discussion.” (Emphasis added.)
255. When, acting under those provisions, the General Assembly decided in 1947 to promote
a plan for the partition of Palestine, it did so by means of a recommendation: “Recommends to the
United Kingdom, as the mandatory Power for Palestine, and to all other Members of the United
Nations the adoption and implementation, with regard to the future government of Palestine, of the
Plan of Partition with Economic Union set out below”178. So convinced was the General Assembly
that it would not be able to enforce the plan of partition for which its majority had voted that it turned
to the Security Council to lend its support: “Requests that (a) The Security Council take the necessary
measures as provided for in the plan for its implementation”179. Since resolution 181 was merely a
recommendation, it did not exceed the substantive powers of the General Assembly. It was merely
its contribution, in the form of a “plan”, to attempt to resolve a key conflict. Its content could only
acquire binding force with the consent of those concerned, that is to say, the Arab people of Palestine.
256. Uncertainty on this point persisted for decades and has still not been completely dispelled.
In the weeks following the vote on resolution 181 Israel was quick to accept its terms, not out of
conviction (subsequent events would show that Israel in no respect accepted the border proposed in
the partition plan as being its final border) but as a political calculation, since that acceptance served
as confirmation of its existence as a State. It was plain at that time that what was lacking for the
recommendation to become binding was acceptance by the people concerned, the Arab people of
Palestine, whose right to self-determination in the whole of their territory was at stake. That people
and its allies initially refused to accept a recommendation that amputated more than half the territory
178 See Ann.12, General Assembly resolution 181.
179 Ibid.
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of Arab Palestine. As a result, resolution 181 petered out in a form of legal vacuum, exacerbated by
the fact that the part of the recommendation concerning Jerusalem was never implemented.
257. It is true that over 40 years later the PLO referred to resolution 181 in its 1988 Declaration
of Independence, in the following terms:
“Despite the historical injustice done to the Palestinian Arab people in its
displacement and in being deprived of the right to self-determination following the
adoption of General Assembly resolution 181 (II) of 1947, which partitioned Palestine
into an Arab and a Jewish State, that resolution nevertheless continues to attach
conditions to international legitimacy that guarantee the Palestinian Arab people the
right to sovereignty and national independence.”180
However, that Declaration well illustrates the ambiguity of the approach proposed by the General
Assembly. The solution recommended did indeed safeguard the right of the Palestinian Arab people
to sovereignty and independence, but it applied to a truncated territory, thereby condoning the terrible
historical injustice inflicted on the Palestinian people. Furthermore, any attempt to attribute
normative force to the resolution is even less likely to succeed in view of the fact that Israel had,
through its military conquests from as early as the 1948-1949 war, deprived the recommendation of
any force by taking over a portion of the territories that the partition plan allocated to the Arab State.
258. It must therefore be concluded that as a result of the intervention in the matter by the
United Nations General Assembly in 1947 the right of the Palestinian people to self-determination
was doubtless confirmed (since the General Assembly resolution envisaged an Arab State), but that
the territorial foundation of that right was dismantled. As a right, it had therefore not ceased to exist,
because the Palestinian people had not at that time consented to any waiver of that right. The fact
that it unilaterally accepted resolution 181, several decades later, merely indicates that in a future
peace agreement (uncertain though its conclusion may seem at the present time), Palestinians will
not be able to revisit their recognition of the sovereignty of the Jewish State over the part of
Mandatory Palestine assigned to Israel under the partition plan181.
259. It is worth noting that, on the part of the new Israeli State that declared independence on
14 May 1948, there was at that time no recognition that the Palestinian people existed. The
Palestinian question gave rise only to “issues of individuals who can settle in the Arab countries in
the region as part of Arab solidarity”182. The next phase, which began with the Arab-Israeli war of
1948, would have much more devastating consequences for the chances of survival of the right of
the Palestinian people to self-determination. The attack on that right then targeted the elements that
enable a people to become a State: territory and population.
260. Turning to its advantage the military situation created by the Arab forces, Israel then
seized by force of arms a large part of the territory reserved for an Arab State in the United Nations
partition plan183. The United Nations Charter, which had then been in force for nearly three years,
prohibits the use of force against the territorial integrity of a State. Admittedly, Israel was not yet a
180 See Ann. 27.
181 To that effect, see Jean Salmon, op. cit., p. 44, and Frank L. M. Van de Craen, “The Territorial Title of the State
of Israel to ‘Palestine’: an Appraisal in International Law”, Revue belge de droit international, Vol. XIV, 1978-1979-2,
p. 505.
182 Madjid Benchikh, “L’accord intérimaire israélo-palestinien sur la Cisjordanie et la Bande de Gaza du
28 septembre 1995”, Annuaire français de droit international, 1995, p. 24 [Translation by the Registry].
183 See para. 92, Map No. 5, above.
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Member of the United Nations, its first attempt at admission having been unsuccessful, but it was a
candidate for membership, which it would be granted after being requested to state clearly that it
accepted the obligations under the Charter and all the United Nations resolutions184. Admittedly, the
Arab State of Palestine still existed only as a potential, because the circumstances in which the
Palestinian people could declare itself a State would only come about much later. Yet that did not
mean that the Arab territory of Palestine resulting from resolution 181 was terra nullius. It was set
aside for the future exercise of Palestinian sovereignty. The Israeli conquests of parts of territories
which were Palestinian according to the 1947 partition plan are therefore unlawful under Article 2,
paragraph 4, of the Charter and cannot be the basis of a valid claim under international law.
261. Those conquests in breach of international law have not been validated in any respect by
the organs of the United Nations. Furthermore, the armistice agreements concluded by Israel with
the various Arab States engaged in the military operations of 1948 clearly indicated that the Armistice
Line was not to be treated as a border:
“1. The line described in Article VI of this Agreement shall be designated as the
Armistice Demarcation Line and is delineated in pursuance of the purpose and intent of
the resolutions of the Security Council of 4 and 16 November 1948.
2. The Armistice Demarcation Line is not to be construed in any sense as a
political or territorial boundary, and is delineated without prejudice to rights, claims and
positions of either Party to the Armistice as regards ultimate settlement of the Palestine
question.
3. The basic purpose of the Armistice Demarcation Line is to delineate the line
beyond which the armed forces of the respective Parties shall not move except as
provided in Article III of this Agreement.
4. Rules and regulations of the armed forces of the Parties, which prohibit
civilians from crossing the fighting lines or entering the area between the lines, shall
remain in effect after the signing of this Agreement with application to the Armistice
Demarcation Line defined in Article VI.”185
262. Throughout the portion of the Palestinian territory that Israel seized in 1948, that forcible
conquest of territories was accompanied by multiple atrocities against the Palestinian population and
its property. The population suffered large-scale massacres and expulsions on a horrendous scale, the
true facts of which were only brought to light much later thanks to the work of the Israeli “new
historians” referred to above186. Another violation of international law committed against the
populations of those territories arose from the appropriation of land owned by Palestinians187. That
seizure of properties, which was deliberately conceived and ordained in law through the legislation
on absentee property, was coupled with a prohibition on any return by Palestinians who had left their
homes. The aim was indeed to destroy the Arab society already existing in those places:
“Prohibiting return meant creating facts on the ground that destroyed Arab
society, that is to say, razing villages to the ground if possible during military operations,
decimating agriculture to prevent harvests, installing Jewish inhabitants in Arab houses
184 See paras. 124-125 above.
185 See Ann. 16, General Armistice Agreement between Egypt and Israel signed at Rhodes on 24 February 1949.
186 See paras. 107-114 above and Jacques de Reynier, op. cit. See also, Catherine Rey Schyrr, “Le CICR et
l’assistance aux réfugiés arabes palestiniens (1948-1950)”, Revue internationale de la Croix-Rouge, September 2001,
Vol. 83, No. 843, p. 739 et seq.
187 For a description of that appropriation, see paras. 115-119 above.
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(in the urban areas), enacting legislation that prohibited return and a propaganda
campaign to that effect . . . The expulsion of populations . . . took place with the clearly
identified aim of ethnic homogenization, defined less by a general instruction to drive
out populations than by strict instructions to prevent any return by destroying houses
and means of subsistence.”188
263. In its resolution 181 proposing the plan to partition Palestine, the General Assembly had
been at pains to establish protection for the property of the minorities in each of the two States whose
creation it was proposing:
“No expropriation of land owned by an Arab in the Jewish State (by a Jew in the
Arab State) shall be allowed except for public purposes. In all cases of expropriation
full compensation as fixed by the Supreme Court shall be paid previous to
dispossession.”189
264. Israel was bound by that specific provision as a result of the solemn undertaking given
by its Government on joining the United Nations to respect the resulting obligations. The provision
merely implements measures concerning Palestinian people and their property that in fact form part
of general international law. Admittedly, the facts under examination here took place before the entry
into force of the Geneva Conventions on humanitarian law in cases of armed conflict of 12 August
1949. However, the law of armed conflict already existed and at that time included the Fourth Hague
Convention of 1907 and the Regulations annexed to it. In its Advisory Opinion of 2004 the Court
recalled that those Regulations applied to the situation between Israel and Palestine:
“As regards international humanitarian law, the Court would first note that Israel
is not a party to the Fourth Hague Convention of 1907, to which the Hague Regulations
are annexed. The Court observes that, in the words of the Convention, those Regulations
were prepared ‘to revise the general laws and customs of war’ existing at that time.
Since then, however, the International Military Tribunal of Nuremberg has found that
the ‘rules laid down in the Convention were recognized by all civilised nations, and
were regarded as being declaratory of the laws and customs of war’ (Judgment of the
International Military Tribunal of Nuremberg, 30 September and 1 October 1946,
p. 65). The Court itself reached the same conclusion when examining the rights and
duties of belligerents in their conduct of military operations (Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, I. C. J. Reports 1996 (I), p. 256, para. 75).
The Court considers that the provisions of the Hague Regulations have become part of
customary law, as is in fact recognized by all the participants in the proceedings before
the Court.”190
265. The activities carried on by Israel at that time must therefore be assessed in light of the
provisions of those Regulations. It thus follows that, by seizing Palestinian territories in 1948 in a
conquest that was itself illegal, Israel committed multiple acts that were war crimes under the
international law then in force.
188 Henry Laurens, La question de Palestine, Tome troisième 1947-1967, L’accomplissement des prophéties, Paris,
Fayard, 2007, pp. 150-151 [Translation by the Registry].
189 See Ann. 12, Plan of Partition with Economic Union, C, Chapter 2, point 8, [footnote omitted].
190 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 172, para. 89.
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266. The many massacres carried out by Israel at that time were violations of Article 25 of the
Hague Regulations: “The attack or bombardment, by whatever means, of towns, villages, dwellings,
or buildings which are undefended is prohibited.” The appropriation of land owned by Palestinians
was prohibited under Article 23 (g) of the Regulations, according to which it is unlawful “[t]o destroy
or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the
necessities of war”. It was also prohibited under Article 28: “The pillage of a town or place, even
when taken by assault, is prohibited”, and also under the second paragraph of Article 46: “Private
property cannot be confiscated.”
267. The situation thus created with the emergence of the State of Israel, and then with the
1948-1949 war, resulted in the territory dedicated to an Arab State by the 1947 partition
resolution being carved up into different parts. A significant portion containing part of Jerusalem was
annexed by Israel, which has since sought to place it under its sovereignty. Despite that ambition,
the legal status of that territory remains unclear because international law has established that the
prohibition of the seizure of territory by force is a fundamental norm. It has been invoked in
international jurisprudence not only as a treaty norm (Article 2, paragraph 4, of the Charter of the
United Nations) but as a customary norm and as an example of a general peremptory norm:
“A further confirmation of the validity as customary international law of the
principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of
the Charter of the United Nations may be found in the fact that it is frequently referred
to in statements by State representatives as being not only a principle of customary
international law but also a fundamental or cardinal principle of such law. The
International Law Commission, in the course of its work on the codification of the law
of treaties, expressed the view that ‘the law of the Charter concerning the prohibition of
the use of force in itself constitutes a conspicuous example of a rule in international law
having the character of jus cogens’ (paragraph (1) of the commentary of the
Commission to Article 50 of its draft Articles on the Law of Treaties, ILC Yearbook,
1966-11, p. 247).”191
268. In 1948 the part of the territory dedicated to an Arab State and not yet conquered by Israel
comprised the West Bank, then under Jordanian administration, and the Gaza Strip under Egyptian
administration. The Palestinian populations of those two parts of Palestine were not at that time
subject to Israeli authority. The right of the Palestinian people to self-determination was nevertheless
under threat. Its historical territory had suffered two amputations, the first as a result of the United
Nations partition plan in 1947, the second through Israel’s territorial conquests in 1948. Its
population was driven out or displaced in large numbers and is still awaiting realization of its right
of return. However much that situation represented a deterioration in terms of the inalienable right
of the Palestinian people to emancipation, it was but the beginnings of what would, from 1967, unfold
throughout the Palestinian territory, which we shall now analyse.
B. Israeli policies and practices relating to the Palestinian territory
occupied since 1967 in light of international law
269. When Israel embarked upon the lightning Six-Day War in June 1967, a new chapter
opened in the situation that had prevailed up until then. By imposing a military occupation on the
whole of Palestine, by supporting the systematic settlement of the West Bank and East Jerusalem, by
subjecting the Gaza Strip to an almost complete blockade, by engaging in negotiations that begin
(but never reach a conclusion) under pressure from the United Nations or countries concerned at the
191 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 100, para. 190.
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continuance of a never-ending conflict, and by committing multiple atrocities against the population,
Israel has confirmed that its plan is indeed to make the emancipation of the Palestinian people
impossible.
270. Those policies and practices need to be examined from the perspective of the law
contemporary with them. By the time Israel embarked on that new period in its conflict with
Palestine, the international law that had been merely sketched out in earlier periods had undergone
considerable consolidation. The right of peoples to self-determination, conferred only on certain
territories under the League of Nations and still fragmentary when the Charter of the United Nations
came into force, from 1960 acquired the legal force of a detailed general peremptory norm. This is
borne out both by the impressive body of resolutions of the organs of the United Nations summarized
above192 and by many multilateral treaties of general scope. Humanitarian law, sketched out from
the end of the nineteenth century and the start of the twentieth with the Hague Conventions, was
supplemented and strengthened by the Geneva Conventions of 12 August 1949, the Additional
Protocols thereto of 1977 and various specific conventions. Human rights were universally
proclaimed in the 1948 Declaration. They would be given greater depth and detail through the
international Covenants of the United Nations. Those texts form the basis of the obligations
incumbent upon Israel, which is bound likewise by all those that flow from the Charter. Those
obligations are even more binding on Israel as a result of the circumstances surrounding its admission
to the United Nations.
271. That is because the State of Israel was only able to join the ranks of the Members of the
United Nations after solemnly undertaking to respect the obligations under the Charter. And yet,
bearing out the lack of trust that the international organization had expressed at the time of its
admission, Israel has implemented policies in flagrant violation of those obligations in the territories
occupied by the 1967 war. Those violations have certainly undergone slight variations from time to
time depending on the political parties in power in the Jewish State. However, the overall thrust has
barely wavered and, from the beginnings of the Zionist movement until the recent accession to power
of its extremist fringes, it has typically been those elements of the movement that have steered the
direction of travel.
272. Despite the undertakings given at the time of the various phases of negotiations entered
into with the Palestinians under the aegis of major Powers and the United Nations, in particular its
acceptance of Security Council resolution 242, which required withdrawal from all the Palestinian
territories occupied in 1967 and a just settlement of the refugee problem193, Israel has conducted a
continuous policy aimed at denying and extinguishing the right of the Palestinian people to selfdetermination.
273. We shall show here how the policies and practices of Israel have consisted of impeding
the very possibility of the existence of a Palestinian State by attacking the three component elements
of a State: territory (1), population (2) and the institutions of government (3). It will thus become
apparent that those attacks could only be carried out following courses of action that are themselves
flagrant violations of international law.
192 See paras. 214-240 above.
193 Security Council resolution 242 is expressly referred to in the Declaration of Principles on Interim
Self-Government Arrangements of 13 September 1993, see Ann. 29.
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274. The principal violation of the norm consisting of the right of peoples to self-determination
can thus only be perpetrated through multiple secondary violations of the entire body of international
law existing at the time.
1. The gradual and systematic elimination of the territorial foundations of a State
275. Modern States are divided up according to areas of territory recognized as theirs by other
States, and their geographical sphere, the basis of their sovereign powers, therefore underpins the
exercise of power. The territorial foundations of the Palestinian State, however, as reduced since
1949 to the part delineated by the Armistice Line, also known as the Green Line, have been subject
to cumulative Israeli measures with the result that the territory no longer affords any possibility of
the exercise of sovereign power. It is significant that the expression “viable State” emerged during
the most recent negotiations, as if to ward off the reality that current developments are jeopardizing
that viability: “The possibility of establishing a viable and contiguous Palestinian State continues to
be eroded by facts on the ground.”194 That dismemberment of the territorial foundations of the State
is the result of various actions and measures, none of which has any basis in law: an illegal military
occupation (a); the control maintained over Gaza and the blockade of that part of Palestinian
territory (b); multiple far-reaching violations of the rules governing military occupation, including
the settlement at pace of the territory occupied by force (c); dismemberment of the territory contrary
to the requirement to respect the integrity of the territory of a people (d); and an annexation in
disguise (e).
(a) A prolonged, illegal military occupation of Palestinian territory
276. When, in 1967, Israeli armed forces penetrated the Palestinian territory then under the
control of Jordan (as regards the West Bank) and Egypt (in respect of Gaza), there was, according to
the law of armed conflict, a military occupation. As framed by law, that situation is by definition
temporary. “The occupation of territory in wartime is, under international humanitarian law, a
temporary situation, which deprives the occupied Power of neither its statehood nor its
sovereignty.”195
277. In his report of 23 October 2017, the Special Rapporteur on the situation of human rights
in the Palestinian territories occupied since 1967 had already explained:
“32. Belligerent occupation is inherently a temporary and exceptional situation
where the occupying power assumes the role of a de facto administrator of the territory
until conditions allow for the return of the territory to the sovereign, which is the people
of the territory. Because of the absolute prohibition against the acquisition of territory
by force, the occupying power is prohibited from ruling, or attempting to rule, the
territory on a permanent or even an indefinite basis. . . . ‘Temporality, together with the
principles of self-determination and non-acquisition of territory by force, is what
distinguishes occupation from conquest, and this distinction would be thwarted were
occupation construed as indefinite.’
33. The laws of occupation do not set a specific length of time for the lawful
duration of an occupation. However, the guiding principle that occupation is a form of
alien rule which is a temporary exception to the norms of self-determination and
sovereignty means that the occupying power is required to return the territory to the
194 Speech by the Under-Secretary-General for Political and Peacebuilding Affairs, Rosemary DiCarlo, to the
Security Council on 29 April 2019, 8517th meeting (AM), CS/13794.
195 See Ann. 40, para. 9.
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sovereign power in as reasonable and expeditious a time period as possible, subject only
to ensuring: (a) public safety and the security of the territory; (b) the resumption, or
creation, of governing institutions and a functioning economy; and (c) the security of
the occupying military. The occupying power, being obliged to work in good faith to
achieve these goals consistent with the principles of the laws of occupation, would have
no legitimate purpose to remain in the occupied territory beyond the time when
conditions have allowed for the territory to be returned in toto to the sovereign power.
Indeed, the longer the occupation, the greater the justification that the occupying power
must satisfy to defend its continuing presence in the occupied territory.” 196
278. The independent commission referred to above likewise focused on that indicator for
determining the illegality of the occupation, namely the permanence of the occupation. It observed
in that respect:
“[T]he Commission noted the strength of credible evidence that Israel has no
intention of ending the occupation, has clear policies for ensuring complete control over
the Occupied Palestinian Territory, and is acting to alter the demography through the
maintenance of a repressive environment for Palestinians and a favourable environment
for Israeli settlers. The present report will be focused on those elements with a view to
investigating the human rights and legal consequences of the prolonged occupation,
including whether, as part of its occupation regime, Israel has, to all intents and
purposes, ‘annexed’ wholly or partly the Occupied Palestinian Territory, and providing
concrete recommendations to relevant stakeholders.”197
279. It must therefore be concluded that because it is continuing indefinitely, Israel’s military
occupation of the Palestinian territory is inherently an illegal occupation. It has, moreover, been the
source of other violations of international law, as the Fact Finding Mission found in its Report on
Human Rights in Palestine and other Occupied Arab Territories. The occupation has emerged as “the
fundamental factor underlying violations of international humanitarian and human rights law against
the protected population and undermining prospects for development and peace”198.
(b) The prolonged occupation of Gaza through control of that territory and the blockade imposed
on it
280. On 12 September 2005, Israel claimed that it had withdrawn its army from the Gaza Strip
and dismantled the Jewish settlements built there. It cannot be concluded, however, that the military
occupation came to an end.
“All the forms of control and the powers that Israel has reserved for itself over
Gaza, in particular its complete control of people and goods entering and leaving, and
the right of military intervention asserted (and used) mean that the Gaza Strip has
remained highly dependent on Israel.”199
196 Ann. 41, United Nations General Assembly, Report of the Special Rapporteur on the situation of human rights
in the [Palestinian territories occupied since 1967], 23 October 2017, A/72/556, paras. 32 and 33, [footnotes omitted].
197 See Ann. 40, para. 3.
198 Ann. 42, United Nations, Human Rights Council, Report of the United Nations Fact Finding Mission on the
Gaza Conflict, 2[4] September 2009, A/HRC/12/48 (ADVANCE 2), para. 1897.
199 Alain Bockel, “Le retrait israélien de Gaza et ses conséquences sur le droit international”, Annuaire français de
droit international, 2005, p. 23 [Translation by the Registry].
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Therefore, the territory of the Gaza Strip, which, together with the West Bank and Jerusalem, forms
the combined Palestinian territory, is thus still under Israeli occupation and Israel must comply with
the obligations of any occupying Power in that territory.
“The exercise of external control over boundaries obliges the occupying Power
that has control to respect the rights of the civilian populations residing within them.
That control . . . is complete, and has in particular strengthened since 2007, over the air,
maritime and land boundaries.”200
281. As early as 2009, the United Nations Fact Finding Mission on the Gaza Conflict described
the situation imposed on that territory by Israel as a blockade and recalled that Israel remained bound
by the duties of an occupying Power in relation to the territory:
“27. The Mission focused (chap. V) on the process of economic and political
isolation imposed by Israel on the Gaza Strip, generally referred to as a blockade. The
blockade comprises measures such as restrictions on the goods that can be imported into
Gaza and the closure of border crossings for people, goods and services, sometimes for
days, including cuts in the provision of fuel and electricity . . .
28. The Mission holds the view that Israel continues to be duty-bound under the
Fourth Geneva Convention and to the full extent of the means available to it to ensure
the supply of foodstuff, medical and hospital items and other goods to meet the
humanitarian needs of the population of the Gaza Strip without qualification.”201
282. Israeli practices and policies in respect of the Gaza Strip are therefore constitute two
heads of illegality. The first is shared with the practices pursued in the West Bank and East Jerusalem
and concerns the indefinite nature of the occupation, which is incompatible with the fact that an
occupation is by definition temporary.
283. The measures amounting to a blockade constitute the second head of illegality on the part
of Israel as regards the situation imposed on the Gaza Strip. We shall not enter here into the detail of
those measures, which have regularly been condemned in the various reports submitted to the
General Assembly: “Attacks on the foundations of civilian life in Gaza: destruction of industrial
infrastructure, food production, water installations, sewage treatment plants and housing”202. They
represent “a policy that may amount to collective punishment”203. Aimed at starving civilian
populations and depriving them of the various basic requirements of life, measures that constitute a
blockade are prohibited by Article 53 of the Geneva Convention of 12 August 1949:
“Article 53 - [Prohibited destruction -] Any destruction by the Occupying Power
of real or personal property belonging individually or collectively to private persons, or
to the State, or to other public authorities, or to social or cooperative organizations, is
prohibited, except where such destruction is rendered absolutely necessary by military
operations.”
200 Alain Bockel, “Gaza, le processus de paix en question”, Annuaire français de droit international, 2009, p. 181
[Translation by the Registry].
201 Ann. 43, United Nations, Human Rights Council, Report of the United Nations Fact Finding Mission on the
Gaza Conflict, 23 September 2009, A/HRC/12/48 (ADVANCE 1), paras. 27 and 28.
202 See Ann. 43, heading of point 9.
203 See Ann. 40, para. 20.
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Such measures are also prohibited by Article 54 of Additional Protocol I to the Geneva Conventions
of 12 August 1949 relating to the protection of victims of international armed conflicts:
“Article 54 - Protection of objects indispensable to the survival of the civilian
population
1. Starvation of civilians as a method of warfare is prohibited.
2. It is prohibited to attack, destroy, remove or render useless objects
indispensable to the survival of the civilian population, such as foodstuffs, agricultural
areas for the production of foodstuffs, crops, livestock, drinking water installations and
supplies and irrigation works, for the specific purpose of denying them for their
sustenance value to the civilian population or to the adverse Party, whatever the motive,
whether in order to starve out civilians, to cause them to move away, or for any other
motive.”
That illegality constitutes a war crime and must therefore be prohibited and punished as such.
(c) Rapid settlement
284. Israel began its project of settling the West Bank and East Jerusalem long before the
military occupation of those territories. Over time that settlement has acquired significant
proportions. In the words of a report by the European Union of 15 May 2023:
“According to the Israeli Bureau of Statistics, there are around 230,000 Israelis
living in 14 settlements constructed in East Jerusalem. Between 1967 and now,
government-initiated construction in East Jerusalem benefited 99% Israelis and only 1%
Palestinians. A total of 57[,]000 housing units were advanced in Jewish neighborhoods
and only 600 in Palestinian ones.”204
Settlement is on a growth trajectory. On 28 March 2023, the Human Rights Council was told that the
settler population increased from 520,000 to more than 700,000 between 2012 and 2022205. The
settlement blocs thus built illegally have been consolidated by networks of bypass roads and by the
wall.
285. Israel uses State funds to support hundreds of Jewish civilian settlements in the Occupied
Palestinian Territory. Thousands of millions of dollars of both private and public funds have thus
financed the building of settlements and the corresponding infrastructure206. Although all the
settlements are illegal under international law, Israel distinguishes between settlements authorized
according to Israeli law and outposts deemed illegal. The latter nevertheless have the benefit of
essential services (such as electricity and security). In most cases, they are legalized subsequently.
286. Encouraged by the State of Israel and underpinned by the dispossession of considerable
amounts of Palestinian land, the mass transfers of the population of the occupier into the occupied
territory constitute infringements of a capital rule of international humanitarian law that forms part
of both customary and treaty-based positive law and is enshrined in Article 49 of the Fourth Geneva
204 Ann. 44, European Union, Office of the European Union Representative (West Bank and Gaza Strip, UNRWA),
2022 Report on Israeli settlements in the occupied West Bank, including East Jerusalem, Reporting period -
January-December 2022, 15 May 2023.
205 See Ann. 38, United Nations, Human Rights Council, 28 March 2023.
206 See Ann. 40, paras. 25, 26 and 29.
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Convention of 12 August 1949, which reads as follows: “Article 49  [Deportations, transfers,
evacuations ] The Occupying Power shall not deport or transfer parts of its own civilian population
into the territory it occupies.”
287. This rapid settlement is achieved through an administratively organized policy of
dispossessing property belonging to Palestinians. Farming and grazing land is allocated to newly
arrived settlers. In order to do so, Israel invokes military reasons for restricting access to vast areas
of the West Bank, consisting in part of private Palestinian land, which enables it to then use that land
to create new settlements. This “zoning” policy has resulted in 18 per cent of the territory of the West
Bank (1,765,000 dunums), primarily in Area C, being assigned to military areas with regulated
access. Decree No. 59 of 1967 (5727-1967) on absentee property has allowed more than 750,000
dunums of formerly Palestinian properties to be declared “State” land207.
288. Israeli policy on the granting of building permits in the West Bank greatly favours Jewish
settlers at the expense of the Palestinian population. Palestinian applicants for permits to build on
their own land thus have their applications refused in the name of the régime applied to reserved
areas, while building is authorized, if not encouraged, for settlements. “In 2019 and 2020, 32 plans
and permits for Palestinians were approved and 310 plans were rejected, while the Civil
Administration of Israel approved plans for 16,098 units in Israeli settlements.”208
289. While it is difficult for Palestinians to obtain building permits, including on their own
land, the demolition of properties belonging to Palestinians, on the other hand, has increased
constantly. Figures show 15,000 pending demolition orders in Area C of the West Bank. In East
Jerusalem, 100,000 residents have been placed in extremely precarious circumstances because their
homes were built without permits, which are impossible to obtain. Going even further, the Israeli
Planning and Building Law forces owners to demolish their properties themselves on pain of
incurring fines exceeding the average income of Palestinian households. In 2021, 55 per cent of
demolitions in East Jerusalem were carried out by owners threatened in that way209.
290. That control of Palestinian land for the benefit of Jewish settlers is accompanied by
control of all the water resources of the West Bank to meet the needs of the settlements. A 1967
military order (No. 92) has allowed Israel to take control of the principal water sources in the West
Bank and has prohibited Palestinians from constructing new water access installations or maintaining
existing installations without authorization from the military authorities210.
291. All these measures pursue the same goal: to progressively deprive Palestinians of their
properties and transfer them to the Israeli settlements. Speaking on 19 December 2022 before the
Security Council, the Special Coordinator for the Middle East Peace Process, Tor Wennesland,
voiced
“particular concern at the expansion of the Israeli settlements in the occupied West
Bank, which in his view jeopardize the prospects for a two-State solution by
207 Ibid., paras. 31-32.
208 Ibid., para. 42.
209 Ann. 45, General Assembly, Economic and Social Council, “Economic and social repercussions of the Israeli
occupation on the living conditions of the Palestinian people in the Occupied Palestinian Territory, including East
Jerusalem, and of the Arab population in the occupied Syrian Golan”, 8 June 2022, A/77/90–E/2022/66, paras. 28-32.
210 See Ann. 40, para. 35.
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‘systematically’ eroding the possibility of establishing a contiguous, independent,
viable and sovereign Palestinian State. Thus, in Area C alone, some 4,800 units were
built in 2022, compared with 5,400 in 2021. In occupied East Jerusalem, however, the
number of housing units more than tripled compared with the preceding year, increasing
from 900 units in 2021 to some 3,100 units in 2022, Mr Wennesland stated. The
continued demolition and seizure of Palestinian structures remained alarming, the senior
official went on to say, lamenting in particular the demolition of a donor-funded school
in Masafer Yatta.”
He warned “the Members of the Security Council that the violence and continued expansion of Israeli
settlements in the occupied territories compromised the two-State solution, eroding any possibility
of establishing a viable, independent Palestinian State” 211.
292. Israel’s policy of rapid settlement in the West Bank and East Jerusalem has met with
unqualified condemnation from the United Nations. The General Assembly has expressed its view
countless times. The Security Council, its decision-making body, has also regularly condemned those
practices, in particular in resolution 465:
“5. Determines that all measures taken by Israel to change the physical character,
demographic composition, institutional structure or status of the Palestinian and other
Arab territories occupied since 1967, including Jerusalem, or any part thereof have no
legal validity and that Israel’s policy and practices of settling parts of its population and
new immigrants in those territories constitute a flagrant violation of the Geneva
Convention relative to the Protection of Civilian Persons in Time of War and also
constitute a serious obstruction to achieving a comprehensive, just and lasting peace in
the Middle East:
6. Strongly deplores the continuation and persistence of Israel in pursuing those
policies and practices and calls upon the Government and people of Israel to rescind
those measures, to dismantle the existing settlements and in particular to cease, on an
urgent basis, the establishment, construction and planning of settlements in the Arab
territories occupied since 1967, including Jerusalem”212.
293. Those settlement measures are furthermore violations of international humanitarian law.
That law strives to protect civilian populations subject to foreign military occupation, in particular to
ensure their survival. This is clear from Article 53 of the Geneva Convention of 12 August 1949 and
Article 54 of Additional Protocol I, both cited above213.
(d) Dismemberment of the Occupied Palestinian Territory contrary to the right of peoples to selfdetermination
in the whole of their territory
294. A key aspect of the right of peoples to self-determination is that each people concerned
must be able to realize the right in the whole of their territory. In its Advisory Opinion of 23 February
2019 the International Court stated on that point:
211 Ann. 46, United Nations Security Council, 9224th Meeting, “Cycle of Violence, Bloodshed between Israelis,
Palestinians Untenable, Delegate Stresses at Security Council Briefing on Middle East”, 19 December 2022, CS/15146
[Translation by the Registry].
212 Security Council resolution 465 of 1 March 1980.
213 Para. 283 above.
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“In order to prevent any dismemberment of non-self-governing territories,
paragraph 6 of resolution 1514 (XV) provides that:
‘Any attempt aimed at the partial or total disruption of the national
unity and the territorial integrity of a country is incompatible with the
purposes and principles of the Charter of the United Nations.’”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“The Court recalls that the right to self-determination of the people concerned is
defined by reference to the entirety of a non-self-governing territory, as stated in the
aforementioned paragraph 6 of resolution 1514 (XV) (see paragraph 153 above). Both
State practice and opinio juris at the relevant time confirm the customary law character
of the right to territorial integrity of a non-self-governing territory as a corollary of the
right to self- determination. No example has been brought to the attention of the Court
in which, following the adoption of resolution 1514 (XV), the General Assembly or any
other organ of the United Nations has considered as lawful the detachment by the
administering Power of part of a non-self-governing territory, for the purpose of
maintaining it under its colonial rule. States have consistently emphasized that respect
for the territorial integrity of a non-self- governing territory is a key element of the
exercise of the right to self- determination under international law. The Court considers
that the peoples of non-self-governing territories are entitled to exercise their right to
self-determination in relation to their territory as a whole, the integrity of which must
be respected by the administering Power. It follows that any detachment by the
administering Power of part of a non-self-governing territory, unless based on the freely
expressed and genuine will of the people of the territory concerned, is contrary to the
right to self-determination.”214
295. Israel has disregarded that requirement in many ways in relation to Palestine, its policies
and practices forming as they do a long list of attacks on the integrity of the Palestinian territory.
Leaving aside the first amputation of the Palestinian territory, that resulting from the partition
resolution (taking the view that, after painful convulsions, the Palestinian people accepted the
creation of Israel on that part of its historical territory), Israel then embarked on an armed conquest
of a significant portion (nearly a quarter) of Mandatory Palestine. It then annexed its conquests,
although those annexations have never been validated. This was undoubtedly a violation of the
territorial integrity of a people.
296. Thereafter, Israel has continuously extended its settlement policy, fragmenting the
Palestinian territory to the point of rendering it unviable. It has no intention of ever handing back
those settlements. Protecting the settlements with a wall; identifying areas reserved for settlement
expansion; affording impunity to settlers in respect of all the acts of violence they perpetrate in order
not only to ensure security but to expand their properties — these are means employed to disrupt the
territorial integrity of a people.
297. Lastly, the constraint imposed by the 1993 interim arrangements to the effect that the
Palestinian territory left to be administered by the Palestinian Authority was divided into three areas,
each with a different status, and the tight control retained by Israel in the largest of those areas further
undermine the guarantee of territorial integrity that is central to the exercise of the right of peoples
to self-determination.
214 Ibid., [paras. 153 and] 160.
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(e) Blatant creeping annexation in the West Bank and a purported de jure annexation in East
Jerusalem
298. There is no shortage of political statements by Israeli political figures indicating an
intention never to end the occupation. “In all cases where we decided to create Israeli localities, we
proceed on the basis that those regions will remain under our control and will have to be included
within the new borders of the country once a peace agreement is concluded”215. The unrestricted rollout
of Israeli settlements and the resolute intention of the Jewish State to incorporate them into its
territory testify that the intention is one of illegal annexation.
299. The Independent International Commission of Inquiry on the Occupied Palestinian
Territory, including East Jerusalem, and Israel, mandated by the United Nations General Assembly,
expressed concern about the matter in its report of 14 September 2022, stating that it focuses on:
“actions amounting to annexation, including unilateral actions taken to dispose of parts of the
Occupied Palestinian Territory as if Israel held sovereignty over it”216. It recalls that de jure
annexation is the formal extension of a State’s sovereignty into a territory, flowing from its domestic
law although not necessarily recognized under international law, whereas de facto annexation implies
a gradual or incremental process. De facto annexation is not formally proclaimed. It is therefore not
easy to determine at what point the threshold between occupation and de facto annexation has been
crossed.
300. Already in its Advisory Opinion of 9 July 2004 the Court considered the hypothesis of a
de facto annexation, when it examined the situation created by construction of the Israeli wall in the
occupied West Bank and Jerusalem.
“The Court considers 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.”217
301. In the 20 years since the Court delivered that Opinion, Israeli leaders have persisted not
only in continuing to build the wall but in expressing their intention to make the presence of the
settlements irreversible and to annexe all or part of Area C of the West Bank. In 2020 Mr Netanyahu,
then Prime Minister, stated with reference to Israeli sovereignty over the West Bank that the issue of
sovereignty was still on the table218. More recently, on 17 May 2022, newly elected Prime
Minister Bennet, emphasizing that the settlements already comprised an integral part of the State of
Israel, declared: “With the help of God, we will also be here at the celebrations of Elkana’s fiftieth
and seventy-fifth, 100th, 200th and 2,000th birthdays, within a united and sovereign Jewish State in
the Land of Israel.”219 The current Israeli Government, meeting as the Council of Ministers on
215 See Ann. 22, Statement by General Dayan.
216 See Ann. 40, para. 11.
217 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 184, para. 121.
218 Quoted in Ann. 40, para. 52, footnote 109.
219 Ibid., para. 53.
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18 June 2023, has continued its project of creeping annexation by deciding to simplify considerably
the administrative formalities for building in the settlements220.
302. The situation with regard to Jerusalem is both clearer and more serious. After seizing the
western section of the city by force at the time of its illegal conquests in 1948, Israel declared it the
eternal capital of Israel. In 1980, however, Israel went further by adopting the Basic Law that
designated the whole of Jerusalem as the reunified capital of Israel. The purported de jure annexation
of Jerusalem was thus confirmed.
303. The conclusion reached by the Independent International Commission of Inquiry on the
Occupied Palestinian Territory, including East Jerusalem, and Israel, confirms that there has been de
jure annexation (in Jerusalem) and de facto annexation (in the West Bank) by Israel:
“The Commission finds that there are reasonable grounds to conclude that the
Israeli occupation of Palestinian territory is now unlawful under international law owing
to its permanence and to actions undertaken by Israel to annex parts of the land de facto
and de jure. Actions by Israel that are intended to create irreversible facts on the ground
and expand its control over territory are reflections as well as drivers of its permanent
occupation.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Actions by Israel constituting de facto annexation include expropriating land and
natural resources, establishing settlements and outposts, maintaining a restrictive and
discriminatory planning and building regime for Palestinians and extending Israeli law
extraterritorially to Israeli settlers in the West Bank.” 221
304. Annexation, whether declared officially by a State that has used armed force to seize
territories that are not under its sovereignty or where it results from factual measures demonstrating
a claim to de facto sovereignty, has been an illegal act under international law since the
Kellogg-Briand Pact of 1928. That illegality was confirmed by the Charter of the United Nations in
Article 2, paragraph 4. This protection from illegitimate territorial encroachments was clarified and
reinforced in the Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States. “No territorial acquisition resulting from the threat or use of force shall
be recognized as legal.”222
305. Israel’s policy of de jure or simply de facto annexation of parts of the Occupied
Palestinian Territory has also been very robustly condemned by the organs of the United Nations.
The Organization has condemned the occupation itself (Security Council resolution 242), the
settlement policy in the West Bank and, specifically to the extent that it has amounted to de jure
annexation, Israel’s takeover of Jerusalem (resolution 252 of 21 May 1968, resolution 267 of 3 July
220 Ann. 47, Clothilde Mraffko, “Le gouvernement israélien fait un pas important vers une annexion de la
Cisjordanie” (“The Israeli Government takes a significant step towards annexation of the West Bank”), Le Monde, 20 June
2023.
221 See Ann. 40, paras. 75 and 76.
222 United Nations General Assembly, resolution 2625 of 24 October 1970, Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the
United Nations.
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1967, resolution 271 of 15 September 1969, resolution 298 of 25 September 1[9]71, resolution 478
of 30 June 1980, and, more recently, Security Council resolution 2334 of 23 December 2016).
306. These attempts by the Jewish State to thwart the self-determination of the Palestinian
people by depriving it of access to a viable territory have thus proved increasingly determined over
time, while at the same time being the subject of constant condemnation by the international
community.
2. Israeli policies and practices relating to the Palestinian population of the territory occupied
since 1967 in light of international law
307. Another element key to the existence of a State is its people. A people is a human group
differentiated from other groups and possessed of a collective identity. That group becomes a nation
through a sentiment of common belonging. Israel’s wish to deny the Palestinian people its right to
emancipation is manifested not only by the fact that it is leaving that people with ever-smaller areas
of territory that are scattered and cut off from each other, but by its pursuit of a policy with the
unconcealed aim of emptying the Palestinian Territory of as many of its Arab inhabitants as possible
for the benefit of increasingly numerous Jewish settlers. That policy targeting the human foundation
of the State of Palestine comprises several complementary limbs: first, dissuading as many
Palestinians as possible from staying where they live by destroying their very means of subsistence
(a); second, denying the nevertheless fundamental right to return to their country to all those who
have fled as a result of the wars of 1948 and then 1967 or the increasingly perilous living conditions
in Palestine (b); and, last, discriminating between the Israeli settlers and the Palestinian population
by according them different legal status (c).
(a) Destruction of the very means of subsistence of the population of the Occupied Palestinian
Territory
308. In recent times, the destruction of the very means of subsistence in the Occupied
Palestinian Territory has been the result of the rapid establishment of Jewish settlements. It has been
explored in detail above in relation to the offences against territory and will not be revisited here,
save to note that the advancement of settlements, while depriving the State of the territorial basis of
its authority, is also an offence against that other defining element of a State, its population. Yet
Israeli policy towards the population under occupation consists not only of establishing Jewish
settlements by destroying the spaces where Palestinians dwell and live. It entails extremely violent
measures that have been implemented in all areas of life and have been documented in the reports
submitted to the United Nations General Assembly by the various commissions mandated to do so.
309. One of the worst effects of Israeli settlement in the West Bank is the extreme
fragmentation of the territory accessible to its Palestinian residents. That territory has been
transformed into an archipelago of islets with no contact between them. Movement between them is
hampered by considerably longer journey times between all the main centres of Palestinian
population. The Palestinians of the West Bank and East Jerusalem are subject not only to travel
restrictions under a permit system and a proliferation of checks at certain points on the roads, but to
the obstacle represented by the wall. They find themselves cut off from parts of their families, care
services or humanitarian assistance, access to their own properties and from the means of obtaining
supplies of basic necessities223. Those most affected are the elderly, pregnant women, people with
223 See Ann. 40, para. 55.
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disabilities and young children. The situation is even bleaker in Gaza, which has been locked down
by the Israeli army since 2007.
310. Armed attacks and security incidents have increased continually and the coercive
environment to which Palestinians are subjected has been marked by the destruction of houses and
property, excessive use of force by the Israeli military authorities, the mass imprisonment of
Palestinians and settler violence. The demolition and confiscation of livelihood structures (such as
shops, animal shelters, warehouses, water pipes, cisterns and roads) have deprived Palestinians of
the very means of subsistence. “Since the beginning of 2022, Israel has demolished 500 structures in
the Occupied Palestinian Territory, 153 of which were related to agriculture and 136 to
livelihoods.”224 In the period from 1 April 2021 to 31 March 2022, Israeli military and security forces
killed 351 Palestinians, including 22 girls, 64 boys and 46 women. They wounded 20,772 others,
including 519 women and 3,432 children (of which 312 were girls). The number of casualties grew
in 2021 compared with 2020, with three times more dead to be mourned in the West Bank and East
Jerusalem, five times as many injured and seven times as many injured by live bullets225.
311. Settler violence against Palestinians is increasing, with complete impunity. Between 2008
and March 2022, attacks by settlers left 226 Palestinians dead and 5,252 injured. The severity of the
attacks has also increased. By September 2021, settlers had burned 338 olive trees and had cut,
uprooted or vandalized another 149226.
312. Palestinians’ legitimate opposition to the establishment of new settlements and the
demonstrations expressing that opposition have been met with a disproportionate clampdown. The
Office for the Coordination of Humanitarian Affairs has thus noted, for example, that the protests in
response to establishment of the Evyatar outpost south of Nablus, established by settlers on 3 May
2021, were quelled using live ammunition, rubber-coated metal bullets, tear-gas canisters and stun
grenades. The result was 10 Palestinians dead, including 2 children. More than 6,000 were injured227.
313. In the East Jerusalem sector, more than a third of the area has been expropriated in order
to build Israeli settlements, taking the settler population to over 229,000. The space available for
Palestinians has been substantially reduced and fragmented.
“An outer layer of settlements, beyond the municipal boundaries of Jerusalem,
has also contributed to severing the geographical contiguity between East Jerusalem and
the rest of the occupied West Bank. This includes the plan for the E1 area in eastern
Jerusalem (outside the municipal boundary), intended to reinforce the settlements in the
Ma’ale Adumim area and connect them with Jerusalem, which would divide the West
Bank into two separate entities.”228
314. In the Gaza Strip, air strikes carried out by Israel during its various military operations
have targeted civilian residential buildings. Those attacks are conducted using precision-guided
weapons in the evening or early morning at times when families are together, and thus deliberately
target civilians. While not giving an exhaustive survey of all the casualties of Israeli military forces
224 Ibid., para. 62.
225 See Ann. 45, paras. 10 and 11.
226 Ibid., paras. 38-41.
227 See Ann. 40, para. 68.
228 See Ann. 40, para. 15.
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in Gaza, we cite as an example the 2014 operation “Protective Edge” which had a toll of
2,251 Palestinians killed — including 1,462 civilians, of whom 299 were women and
551 children — and 11,231 Palestinians injured, of whom 10 per cent suffered permanent disability
as a result 229. The same operation caused the destruction of 18,000 housing units. Seventy-three
medical facilities were damaged, much of the electricity network and water and sanitation
infrastructure were incapacitated and the number of people displaced reached 500,000, that is to say,
28 per cent of the population230. Neither the principle of proportionality that should govern and limit
military attacks nor the obligation to issue warnings so that civilians can take shelter was respected231.
Artillery and other explosive weapons were used in heavily populated areas.
315. Still in Gaza, more recently, a new surge in violence from 10 to 21 May 2021 led to the
death of 281 Palestinians, including 71 children. There were 10,000 injured, including 548 children
and 491 women. The Office of the High Commissioner for Human Rights has not gathered evidence
such as to confirm Israel’s claims that the structures targeted were used for military purposes232.
316. All the actions given here as examples are violations of the norms of international
humanitarian law according to which, by virtue of the principle of distinction, civilians and civilian
property must not be targeted. The requirements of legality, necessity and proportionality that
according to international humanitarian law must govern all military operations were not respected.
Investigations carried out subsequently draw attention to unwarranted use of lethal force resulting in
death233.
317. Impunity exists across the board for the Israeli forces. The Independent International
Commission of Inquiry set up in 2015 had already concluded:
“The commission is concerned that impunity prevails across the board for
violations of international humanitarian law and international human rights law
allegedly committed by Israeli forces, whether it be in the context of active hostilities
in Gaza or killings, torture and ill-treatment in the West Bank. Israel must break with
its recent lamentable track record in holding wrongdoers accountable, not only as a
means to secure justice for victims but also to ensure the necessary guarantees for nonrepetition.”
234
In 2022, the Economic and Social Council echoed that concern:
“Lack of accountability for the unlawful use of force remained pervasive. Amid
a lack of transparency on the opening, status and closure of investigations concerning
the killings of Palestinians, according to the Human Rights Committee, investigations
have appeared not to meet the minimum standards of transparency, independence,
promptness, thoroughness and credibility.”235
229 Ann. 48, United Nations, Human Rights Council, Report of the independent commission of inquiry established
pursuant to Human Rights Council resolution S-21/1, 24 June 2015, A/HCR/29/52, para. 20.
230 See Ann. 4[8], para. 23.
231 Ibid., paras. 39, 40 and 54.
232 See Ann. 45, paras. 15 and 16.
233 Ibid., para. 13.
234 See Ann. 48, para. 76.
235 See Ann. 45, para. 14.
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318. Arbitrary detention and ill-treatment are other means used by Israel to terrorize the
Palestinian population and encourage it to flee. Since 1967 more than 800,000 Palestinians have been
brought before Israeli military courts and condemned to detention in Israel. That number increases
every year. Some are detained as “security detainees”, sometimes without being charged or tried.
“These violations have created a coercive environment which is forcing
Palestinians to leave their homes and their lands in possible forcible transfer  a grave
breach of the Fourth Geneva Convention, which may amount to a war crime3  and the
ultimate result of the cumulative effect of the settlement enterprise.”236 [(Footnote
omitted)]
319. It is however prohibited by the international humanitarian law applicable to Israel to
transfer protected persons, including those accused of offences, to the territory of the occupying
Power. “Individual or mass forcible transfers, as well as deportations of protected persons from
occupied territory to the territory of the Occupying Power or to that of any other country, occupied
or not, are prohibited, regardless of their motive.”237
320. Ill-treatment, even including cases of torture, is frequently reported as having been
inflicted on Palestinians in detention. More than 1,300 complaints of torture have been submitted to
the Israeli Ministry of Justice since 2001. Only two investigations were opened, and they were closed.
Furthermore, “the validation by the Attorney General of Israel of methods of interrogation used by
the Israel Security Agency raises concerns about its disregard for the absolute and non-derogable
prohibition of torture under international human rights law”238.
321. That prohibition derives from Article 2, paragraph 2, of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment: “No exceptional circumstances
whatsoever, whether a state of war or a threat of war, internal political instability or any other public
emergency, may be invoked as a justification of torture.”
322. The situation imposed on the population of Palestine, as shown in the description above
(which does not claim to be exhaustive) has persisted and worsened over more than four decades.
Each day brings its share of news of increasingly violent incidents. After the Turmusaya attack on
Wednesday 11 June 2023, the Israeli veterans’ NGO Breaking the Silence stated: “There is no loss
of control: the pogroms happen over and over, planned openly online”239. That testimony confirms
the occupier’s deliberate attempt to degrade the living conditions of residents to the point where they
become untenable, driving those who can to flee the conditions imposed on them. However, freeing
up the land for Israeli settlers involves satisfying a second requirement: that the Palestinians in exile
be prevented from returning.
236 Ann. 49, United Nations, Human Rights Council, “Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and in the occupied Syrian Golan”, Report of the United Nations High Commissioner for Human
Rights, 15 March 2023, A/HRC/52/76, para. 2.
237 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 2 August 1949,
Art. 49, first paragraph.
238 See Ann. 45, para. 22.
239 See Ann. 47, news report by Clothilde Mraffko, special correspondent, Le Monde, Saturday 22 June 2023, p. 5
[Translation by the Registry].
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(b) Israel’s persistent denial of the right of return for Palestinians in exile
323. Ever since the spread of the Zionist movement in Palestine under the British Mandate,
Jewish settlement and the brutality of its implementation have led to the departure of many
Palestinians. That exodus acquired considerable proportions during the war of 1948 and again in
1967 and has continued insidiously since then as a result of the worsening living conditions imposed
on the Palestinians of the occupied territory240. It is difficult to put an exact figure on the number of
these refugees, because they went into exile at very different times, in some cases a very long time
ago, and because the places where they have found refuge are dispersed. The vast majority
(5.7 million) have been counted in censuses by UNRWA (United Nations Relief and Works
Agency)241. This United Nations Agency was the successor, in 1950, to a first body called UNRPR
(United Nations Relief for Palestine Refugees), created on 11 December 1948 by United Nations
General Assembly resolution 194. Its mission is to provide assistance to Palestinian refugees and
their descendants scattered among the refugee camps in the West Bank, Gaza, Jordan, Libya and
Syria.
324. That body holds basic information — demographic data and family files — on the
number of refugees and their lives. That information is based on the URS (unified registration
system), which is a database rather than a census since it relies on a voluntary refugee registration
procedure. It is therefore not a comprehensive figure for the total number of refugees. At the
beginning of the twenty-first century the number of Palestinian refugees was estimated as 4,263,000
in their former territory and 3,534,000 outside that territory.
325. In common with all human beings forced by war or a deterioration in their living
conditions to leave the place where they live, Palestinians in exile want to be able to return there.
Their legitimate claims to do so were expressed at a time when general international law was
formulating the right of return to one’s own country as a human right. In parallel, the United Nations
General Assembly adopted a stance on the issue as early as 1948 by formulating a collective right of
return for exiled Palestinians.
326. In the field of human rights, the right of return is one component of a broader right
recognized as one of the fundamental human rights, the right to freedom to come and go. In the wake
of the wars that marked the early twentieth century and caused the mass displacement of people,
freedom of movement was enshrined in Article 13 of the Universal Declaration of Human Rights of
10 December 1948, and includes the right for all those who have had reason to leave their countries
to return to them if they so wish.
“Article 13.
1. Everyone has the right to freedom of movement and residence within the
borders of each state.
2. Everyone has the right to leave any country, including his own, and to return
to his country.”
240 Ann. 50, Table of refugees in each phase of the conflict, in Le droit au retour. Le problème des réfugiés
palestiniens, Farouk Mardam-Bey and Élias Sanbar (eds.), Arles, Actes Sud, 2002, p. 114.
241 Ann. 51, United Nations General Assembly, Report of the Commissioner-General of the United Nations Relief
and Works Agency for Palestine Refugees in the Near East, 1 January-31 December 2012, A/68/13.
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Some years later, the United Nations Covenant on Civil and Political Rights would reiterate that
freedom in Article 12, paragraph 4 of which enshrined the right of return in very precise terms:
“4. No one shall be arbitrarily deprived of the right to enter his own country.”
327. Israel signed that Covenant on 19 December 1966, ratified it on 3 October 1991 and has
not expressed any reservations in respect of that article. Enshrining as it does a customary norm,
already expressed in the Universal Declaration, that right applied to the situation of the Palestinians
from the very start of their exile. Realization of that right is not contingent on any need to prove that
they were forced to leave. The argument sometimes used by Israel to the effect that Palestinians left
freely, encouraged by their leaders, and as a result had no “right of return”, is therefore completely
baseless. Return is a right as much for those who left their country voluntarily as for those who were
forced to do so.
328. With the development of the right of peoples to self-determination, the right of return as
an individual right became coupled with a collective right. At that time this was the right of a national
group to be protected in the event of conflict or armed occupation. That is the thrust of the first and
second paragraphs of Article 49 of the Fourth Geneva Convention Relative to the Protection of
Civilian Persons in Time of War of 12 August 1949:
“Individual or mass forcible transfers, as well as deportations of protected persons
from occupied territory to the territory of the Occupying Power or to that of any other
country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of
a given area if the security of the population or imperative military reasons so demand.
Such evacuations may not involve the displacement of protected persons outside the
bounds of the occupied territory except when for material reasons it is impossible to
avoid such displacement. Persons thus evacuated shall be transferred back to their
homes as soon as hostilities in the area in question have ceased.” (Emphasis added.)
329. The reasoning behind those provisions would be extended and reinforced a few years
later with the resolutions of the United Nations General Assembly on the protection of national unity
and territorial integrity of any State or country242.
330. The special case of the flows of Palestinian refugees who were victims of the 1948 war
would, however, prompt the United Nations to concern itself specifically with that situation. The
report on the right to repatriation left by the United Nations mediator, Count Bernadotte, when he
was assassinated was to inspire the resolution on which the right of return for Palestinian exiles is
founded, General Assembly resolution 194 of 11 December 1948. By that resolution, the General
Assembly resolved:
“that the refugees wishing to return to their homes and live at peace with their
neighbours should be permitted to do so at the earliest practicable date, and that
compensation should be paid for the property of those choosing not to return and for
loss of or damage to property which, under principles of international law or in equity,
should be made good by the Governments or authorities responsible;
242 Resolution 2625 of 24 October 1970 and resolution 2734 (XXV), Declaration on the Strengthening of
International Security, of 16 December 1970.
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[and instructed] the Conciliation Commission to facilitate the repatriation, resettlement
and economic and social rehabilitation of the refugees and the payment of
compensation”.
331. After the failure of the Conciliation Commission, for a number of years the issue was
reduced to a humanitarian question. However, the 1967 war caused a fresh outflow of refugees and
the Palestinian question returned to centre stage in the concerns of the international community. Israel
would as a result be compelled to authorize the return of a certain number of refugees (between
14,000 and 16,000), a derisory figure compared with the total flow. The General Assembly has ever
since reaffirmed the right of return for Palestinian refugees. Although taking more of a back seat on
this question, the Security Council nevertheless expressed a view first in its resolution 237 of 14 June
1967 in which it: “call[ed] upon the Government of Israel to ensure the safety, welfare and security
of the inhabitants of the areas where military operations have taken place and to facilitate the return
of those inhabitants who have fled the areas since the outbreak of hostilities”. A few months later it
again took a stance, in resolution 242, since it affirmed
“the necessity
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) For achieving a just settlement of the refugee problem”.
332. Those resolutions created an obligation for Israel to accept and organize the return of the
Palestinians in exile. In the months following the 1948 war, it appeared that Israel was resolved to
co-operate with the United Nations on this question. Nevertheless, doubts as to Israel’s intentions in
this respect were behind the United Nations’ first refusal to admit Israel as a Member. The Jewish
State then tried to persuade the international community that it was amenable on the matter. During
the debate preceding the vote on admission, on 5 May 1949, the Israeli delegate sought to reassure
the General Assembly about his Government’s intentions. Yet his words already fully conveyed the
extent of the ambiguity of the Israeli position:
“1. The problem of the Arab refugees was a direct consequence of the war
launched by the Arab States which were entirely responsible for that as well as for other
forms of suffering inflicted by that war;
2. The ensuing problem had raised a humanitarian issue and also had serious
implications for the future peace, development and welfare of the Middle East. The
Government of Israel believed that a solution of the problem was inseparably linked
with a solution of the outstanding issues between it and the Arab States and that no
satisfactory solution was possible except by the restoration of peace in the Middle East.
A solution could be found only within a final settlement creating conditions of cooperation
between Israel and its neighbours;
3. The Government of Israel was earnestly anxious to contribute to the solution
of that problem although the problem was not of its making. That anxiety proceeded
from moral considerations and from Israel’s vital interest in stable conditions
throughout the Middle East. Any rehabilitation of Arab refugees in any part of the
Middle East, whether in Israel or in the neighbouring countries, involved intricate tasks
of resettlement. The two most widely advocated principles were (a) resettlement of the
refugees in the places from which they had fled, thus creating a large minority problem
and a possible menace to internal peace and stability and also placing masses of Arabs
under the rule of a Government which, while committed to an enlightened minority
policy, was not akin to those Arabs in language, culture, religion or social or economic
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institutions; (b) the resettlement of the refugees in areas where they would live under a
Government akin to them in spirit and tradition and in which their smooth integration
would be immediately possible with no resultant friction. A study of the economic,
irrigation and other potentialities of the under-populated and under-developed areas of
the Arab States revealed greater possibilities for a stable solution by the latter method
than by resettlement in Israel. Therefore, the Government of Israel contended that
resettlement in neighbouring areas should be considered as the main principle of
solution. However, Israel would be ready to make its own contribution to a solution of
the problem. It was not yet ascertainable either how many wished to return under
conditions that might be prescribed by the Assembly, or how many Arabs Israel could
receive in the light of existing political and economic considerations. Israel’s first
objective at Lausanne would be to reach an agreement by direct negotiation on the
contribution to be made by each Government toward the settlement of this grave
problem. The extent of the contribution of the Israeli Government would depend entirely
on the formal establishment of peace and relations of good neighbourliness between
Israel and the Arab States.”243
333. Despite the ambiguity of that speech, Israel would be admitted on the strength of a further
undertaking by it to respect the United Nations resolutions and all the obligations under the Charter,
including those relating to the right of return of Palestinian refugees. Subsequent events, in particular
the negotiations that took place between Israel and the PLO from 1991, demonstrated that no
negotiated solution to that question was possible. The problem of the return of Palestinians to their
homes remained the main stumbling block, alongside the issue of Jerusalem. Israel’s political will to
define itself openly as a Jewish State, which found official expression in the 2018 Law, presented an
increasingly insurmountable obstacle to compliance by that State with its obligations towards
Palestinian refugees. By opposing return, not only to the part of Mandatory Palestine now regarded
as Israeli but also to the Occupied Palestinian Territory, Israel was in fact confirming its intention to
thwart the right of the Palestinian people to self-determination and to the reunification of its
population in its territory.
(c) Discrimination between Israeli settlers and the Palestinians of the occupied territory based on
their different status and the law applicable to each
334. The Palestinians living in the territory occupied by Israel have a different status from that
of the Israeli settlers. The origins of that discrimination are remote since it was already in the making
in the very wording of the Balfour Declaration. By talking only of the civil and religious rights of
the non-Jewish communities without mentioning their political rights, while a “national home for the
Jewish people” was emerging, the Declaration made them foreigners in their own country. Since the
1967 occupation Israel has imposed application of its legislation to the whole territory, but with two
sets of legislation existing side by side: military legislation, which applies to the Palestinian
population, and Israeli domestic legislation, which is applied extraterritorially only to Israeli settlers.
The law therefore differs in fields including criminal law, taxation, elections and health insurance244.
There are also separate legal systems for traffic laws and planning and building matters. Apartheid
has therefore built up in stages, as described in the Amnesty International report produced further to
observation and documentation carried out over several years245. The crime of apartheid is a crime
243 [United Nations, Official Records of 2nd Part of the 3rd session the General Assembly, Ad Hoc Political
Committee, summary record of meetings, 6 Apr.-10 May 1949, [29th-54th meetings] - 1949, document A/AC.24/SR.45],
pp. 239-240.
244 See Ann. 40, para. 46.
245 See Ann. 3.
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against humanity under the International Convention on the Suppression and Punishment of the
Crime of Apartheid of 30 November 1993:
“Article 1.
1. The States Parties to the present Convention declare that apartheid is a crime
against humanity and that inhuman acts resulting from the policies and practices of
apartheid and similar policies and practices of racial segregation and discrimination, as
defined in article II of the Convention, are crimes violating the principles of
international law, in particular the purposes and principles of the Charter of the United
Nations, and constituting a serious threat to international peace and security.
2. The States Parties to the present Convention declare criminal those
organizations, institutions and individuals committing the crime of apartheid.”
The Statute of Rome and customary international law confirm that characterization.
335. In the territory of East Jerusalem, Israel has applied its law since 1967. Jerusalem has
been illegally annexed since that time. The Palestinians who live there are considered “permanent
residents”. Unlike the Israelis, who are citizens, the Palestinians of Jerusalem must hold a residence
permit in order to live there. However, Israel has assumed the right to revoke that permit in several
ways. More than 14,500 Palestinians have lost that status in the last 50 years, including 13 in 2018.
“Authorities have justified most revocations based on a failure to prove a ‘center
of life’ in Jerusalem but, in recent years, they have also revoked status to punish
Palestinians accused of attacking Israelis and as collective punishment against relatives
of suspected assailants. The discriminatory system pushes many Palestinians to leave
their home city in what amounts to forcible transfers, a serious violation of international
law.”246
These people have therefore become non-citizens. They are non-citizens “excluded from any nation
State, belonging neither to Israel nor to the Palestinian proto-State”247.
336. The Palestinians living in the occupied territory experience severe discrimination and acts
of repression, as do private legal persons, especially Palestinian civil society organizations.
Palestinian organizations striving to promote human rights and engaged in peaceful activities, often
in partnership with the United Nations, are harassed, and sometimes declared to be terrorist
organizations and barred from carrying on their activities248. This policy on the part of Israel has been
described as the “delegitimization of civil society” by the authors of the Report of the Independent
International Commission of Inquiry on the Occupied Palestinian Territory, including East
Jerusalem, and Israel249.
337. In that way, while the Palestinian territory has been fragmented, its population has been
broken up among different places and its various parts have varying status. The basis of the national
246 Human Rights Watch, https://www.hrw.org/news/2017/08/08/israel-jerusalem-palestinians-stripped-status.
247 Sylvaine Bulle, “Jérusalem-Est : Les sinistrés de la ville-monde” (“East Jerusalem: the casualties of the cityworld”),
Multitudes, 2004/3 (No. 17), pp. 165-173 [Translation by the Registry].
248 See Ann. 45, para. 7.
249 Ann. 52, United Nations, Human Rights Council, Report of the Independent International Commission of
Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, 9 May 2023, A/HRC/53/22, para. 6 et
seq.
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community has been undermined and realization of the right of peoples to self-determination
jeopardized. Going even further, Israel is working to attack and undermine the self-governing
institutions authorized only at a late stage within a framework of mere autonomy.
3. Israeli policies and practices aimed at preventing the emergence of State institutions
338. A third component is required for a national community to be an effective State: access
to self-governing institutions. In this respect, Israel has demonstrated its determination to thwart the
emergence of a State of Palestine in several ways. After the failure to implement the plan of partition
proposed by the United Nations in 1947, all options seemed to remain on the table until 1967.
However, from that date it was clear that should a State of Palestine one day come into being it would
be against the wishes of Israel.
“The situation changed radically from the Six-Day War. On the ‘seventh day’ we
had to decide, and were able to decide, whether that war was a defensive war or a war
of occupation. We decided that it was, after the event, a war of occupation and decided
to eat its fruits.
That changed not only the character of Israel but its very raison d’être. It was a
qualitative rather than a quantitative change. It consisted not of increasing the number
of Arabs living under Israeli government, which had risen from half a million to
2 million, but of denying the right of the Palestinian people to its independence.”250
339. That refusal to allow the right of the Palestinian people to be fulfilled in State institutions
took various forms and continues to do so more and more visibly at the present time. Thus we have
the repression inflicted on Palestinians during demonstrations when they wave their flag, a symbol
of claims to nationhood. Israeli military law has deemed that act to be a threat to security251. We have
the — not symbolic but very real — intention of preventing the emergence of Palestinian authorities
exercising sovereign powers in Palestine. Those authorities (represented by the PLO since it was set
up in 1964) have long been deprived of a seat of authority in Palestine and have wandered from
Amman (until 1971), to Beirut (until 1982) and then to Tunis (until the Palestinian Authority was
established in Ramallah in 1996). In 1985 an attack on the PLO headquarters in Tunis, attributed to
an Israeli fighter aircraft, killed 50 Palestinians and 18 Tunisians.
340. Once it was established in Palestine, the Palestinian Authority, headed by Yasser Arafat
from 1996 until his death in 2004 and then by Mahmoud Abbas, would be the target of measures by
Israel to discredit it, humiliate it and deprive it of the ability to perform its functions. The physical
destruction of State infrastructure intensified. Public buildings, radio and television facilities and
economic infrastructure are regularly hit252. Members of the Palestinian government and legislature
are frequently deprived of freedom of movement and therefore prevented from going abroad. From
2001 Yasser Arafat was confined to Al-Muqata’a, his headquarters in Ramallah, encircled by Israeli
forces and prevented from travelling either within Palestine or abroad. The Palestinian Authority is
deprived of its financial resources by delays in paying taxes collected by Israel on behalf of the
Palestinian Authority, and sometimes even refusals to pay those taxes.
250 Yeshayahu Leibovitz, “Quarante ans après”, Revue d’études palestiniennes, No. 100, summer 2006, p. 97
[Translation by the Registry].
251 See Ann. 40, para. 47. It cites the Order Concerning the Prohibition of Acts of Incitement and Hostile
Propaganda (Judea and Samaria) (No. 101), 5727–1967.
252 See Ann. 33, “L’Europe chiffre les destructions israéliennes” (“Europe puts a figure on Israeli destruction”),
Libération, 22 January 2022.
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341. These are therefore direct attacks against the ability of the Palestinian institutions to
perform the normal political functions of government authorities. Israel is deliberately trying to
destroy the process set in motion by the Oslo Accords. From as early as 2000 Ariel Sharon made no
secret of this: “[w]e are not going ahead with Oslo. There will be no more Oslo. Oslo is over”253. His
successors have followed faithfully along the same path.
342. An Israeli academic coined the term “politicide” to describe this phenomenon254. It
consists of “a gradual but systematic attempt to cause their annihilation as an independent political
and social entity”255. There is no lack of statements by Israeli leaders confirming the extent to which
this project has been an abiding concern ever since they became leaders. Golda Meir, Prime Minister
from 1969 to 1974, was denying the reality of Palestine even then, asking as she did in a speech on
8 March 1969: “How can we return the occupied territories? There is no one to return them to.” Three
months later, she added: “the Palestinians have never existed”256. The position of Israel’s leaders
remains the same 54 years later, as borne out by the recent statements by the Israeli Defence Minister
passing through Paris on 20 March 2023: “the Palestinians do not exist because the Palestinian people
does not exist”257.
343. That refusal to countenance the birth of the State of Palestine, which is nevertheless the
just realization of the right of the Palestinian people to self-determination, has in that way been
applied systematically to each of the components that underpin a State: territory, population and State
institutions. The refusal has been even more categoric in relation to an aspect fundamental to the
freedom of a people — the right to set up its capital anywhere it decides on the territory recognized
as belonging to it. Respect for the Palestinian institutions is nevertheless the sine qua non of its
accession to statehood, which remains the objective of the international community, as the Security
Council recalled in its resolution of 16 December 2008 in which it:
“[c]all[ed] on all States and international organizations to contribute to an atmosphere
conducive to negotiations and to support the Palestinian government that is committed
to the Quartet principles and the Arab Peace Initiative and respects the commitments of
the Palestinian Liberation Organization, to assist in the development of the Palestinian
economy, to maximize the resources available to the Palestinian Authority, and to
contribute to the Palestinian institution-building programme in preparation for
statehood”258.
We shall now devote a specific section to the question of Jerusalem in order to show how, by entirely
annexing the city and its environs understood in the broad sense, Israel is providing the final proof
of its opposition to the realization of the legitimate rights of the Palestinian people.
253 Haaretz, 18 October 2000. (Quoted by Tanya Reinhart, “Détruire la Palestine ou comment terminer la guerre
de 1948”, La Fabrique, Paris, 2002, p. 96) [Translation by the Registry].
254 Baruch Kimmerling, Politicide: Sharon’s War against the Palestinians, London, Verso Books, 2004, quoted by
Pierre Blanc in “Palestine : géopolitique d’une violence territoriale”, Confluences Méditerranée, No. 86, summer 2013,
p. 14.
255 Baruch Kimmerling, op. cit.
256 Quoted by Pierre Blanc, op. cit.. p. 14 [Translation by the Registry].
257 See Ann. 37.
258 Security Council, resolution 1850 of 16 December 2008.
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V. ANNEXATION AND SETTLEMENT OF JERUSALEM IN DEFIANCE OF THE RIGHT
OF PALESTINIANS TO MAKE IT THEIR CAPITAL
344. The question of Jerusalem has come up several times in the foregoing pages, in particular
in relation to the events that coupled the fate of the city with that of the West Bank from 1967, when
those territories were occupied by Israel. It is necessary to dwell on it specifically, however, given
the peculiarities of the situation facing this iconic city. Not included in the territory intended to form
an Israeli State under the United Nations partition plan of 1947, but not subject to the international
status envisaged at that time because the status proposed by the partition plan did not see the light of
day, Jerusalem has seen each of its parts, West and East, illegally annexed by Israel. Today the Jewish
State thus occupies the whole of the city, which it is expanding repeatedly at the expense of the
Palestinian territory of the West Bank. Through the rapid settlement of the Jewish population, Israel
is depriving the Palestinian people of a key component of the right of peoples to self-determination:
the right of a people to establish its capital in the city of its choice.
345. In a first section we shall summarize the various factual circumstances that have led to
this situation (A). In a second section we shall analyse the various facets of the resulting illegality (B).
A. Jerusalem, an Arab city confiscated by Israel
346. As with the Palestinian territory as a whole, in the history of Jerusalem events before the
1967 Israeli occupation (1) need to be distinguished from those that came after it (2), on which they
shed light.
1. Israel’s designs on Jerusalem before 1967
347. The situation regarding Jerusalem was very unclear throughout the Mandate of Great
Britain (a). Non-application of United Nations General Assembly resolution 181 in 1947 left things
uncertain (b). The war of 1948 was then the occasion for Israel to seize and annex the West of the
city (c).
(a) Before and during the British Mandate
348. For several centuries Jerusalem was under Ottoman domination. Inhabited by Palestinian
Arabs, it was then a religious centre but was not a centre of government. Within the Ottoman
administration it was a pashaluk and then from 1873 became a sandjack directly under the aegis of
Istanbul259. The city was open to other communities whose presence was linked to the fact that it is
the site of emblematic monuments of the three monotheistic religions. The number of Jewish people
in the city increased during the nineteenth century, reaching approximately 20,000 in 1880.
349. At the start of the British Mandate, Jerusalem was its political capital. The Jewish
population grew in the districts of western Jerusalem; the Arab population was located in the East
and in the Old City, but formed the majority above all in the rural area around Jerusalem. The city
was not the centre of the Zionist movement, which was headquartered in Tel Aviv. For the Arab
elites belonging to important families that had been stripped of political authority by the mandatory
Power, Jerusalem would be their base for taking control of the Arab political movement. Jerusalem
has ever since been central to Palestinian political consciousness.
259 Henry Laurens, “Jérusalem, capitale de la Palestine mandataire”, in Jérusalem, le sacré et le politique, Farouk
Mardam-Bey and Élias Sanbar (eds.), Arles, Actes Sud, Sindbab, 2000, p. 219 et seq.
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350. When the League of Nations conferred the Mandate for Palestine on Great Britain in
1922, Article 14 thereof provided for the creation of a special Commission to resolve the specific
problems of the Holy Places and the different religious communities:
“Article 14.
A special Commission shall be appointed by the Mandatory to study, define and
determine the rights and claims in connection with the Holy Places and the rights and
claims relating to the different religious communities in Palestine. The method of
nomination, the composition and the functions of this Commission shall be submitted
to the Council of the League for its approval, and the Commission shall not be appointed
or enter upon its functions without the approval of the Council.”260
However, the difficulties of setting up the Commission and ensuring the representation of the
different religions on it were so great that it proved untenable. The mandatory Power was therefore
responsible for the Holy Places and the Ottoman status quo governing relations between the various
communities remained in place.
351. The tensions between Jews and Muslims that had existed since the beginning of the
Mandate grew worse in Jerusalem, and were about access to and management of the religious sites.
In 1929, following the Al-Buraq uprising, the British Government appointed an international
commission of inquiry led by Sir Walter Shaw. It was charged with investigating the rights of Jews
and Arabs over the Western Wall in Jerusalem. The report that it submitted to the League of Nations
in 1930 confirmed the exclusive rights of Muslims to the western wall of the Haram al-Sharif and to
the pavement in front of the Wall and the Maghrabi Quarter opposite it. Ownership vested in them
on the basis of waqf (property held in mortmain). This property is therefore inalienable and dedicated
exclusively to public or charitable purposes. Jewish worshippers were nevertheless granted
authorization to come as far as the foot of the Wall to pray. The Commission’s decisions were enacted
as a Law of 8 June 1931261.
352. From the time of the major revolts of 1936, Great Britain lost control of the situation. In
1947, unable to restore calm, it left the matter to the United Nations. What was at stake for the Arab
States, on the one hand, and the major Western Powers, on the other, in the solutions then envisaged
was to a large extent bound up with their concern for the Holy Places. Their interest had become
heightened in the nineteenth century by rivalry between Orthodox and Catholic Christians, which
fuelled a proliferation of charitable works supported by all the European nations, and ultimately
prompted some of those nations to propose the idea of a special status. Behind the rhetoric of freedom
of access to the places of prayer one could discern a desire to maintain influence in the region.
(b) The United Nations plan of partition in 1947 and the proposals for Jerusalem
353. Consensus emerged among the Member States of the new international organization to
move towards a partition of Mandatory Palestine into two States and to separate Jerusalem from the
plan of partition under a special status devised for it. By resolution 181 the General Assembly
accordingly proposed to internationalize and demilitarize Jerusalem262. The plan was to make the
Holy City a corpus separatum under a special international régime, backed by the Trusteeship
Council. The city would in that way fall outside the authority of both States, the Jewish State and the
260 Ann. 7, League of Nations, Mandate for Palestine.
261 Ann. 53, “The Status of Jerusalem”, United Nations, New-York, 1997, p. 5, note 4.
262 See Ann. 12.
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Arab State, whose creation was being proposed. It was planned that an enclave would be created
encompassing Jerusalem and Bethlehem, that is to say, the most significant holy places of
Christianity. However, the concept of “Holy Places”, hitherto reserved for those of Christianity, now
encompassed the holy places of Islam and Judaism.
354. The territory of the city, geographically located in the part destined to become an Arab
State, would be an enclave within it. Its boundaries were defined as follows:
“B. BOUNDARIES OF THE CITY
The City of Jerusalem shall include the present municipality of Jerusalem plus the
surrounding villages and towns, the most eastern of which shall be Abu Dis; the most
southern, Bethlehem; the most western, Ein Karim (including also the built-up area of
Motsa); and the most northern Shu’fat, as indicated on the attached sketch-map
(annex B).”
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Map No. 13, The boundaries of Jerusalem according to United Nations General Assembly resolution 181.
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355. The General Assembly then charged the Trusteeship Council with drawing up a Statute
(indicated only in outline in resolution 181) which would be valid for 10 years.
“After the expiration of this period the whole scheme shall be subject to reexamination
by the Trusteeship Council in the light of the experience acquired with its
functioning. The residents of the City shall be then free to express by means of a
referendum their wishes as to possible modifications of the regime of the City.”
356. Resolution 181 was never implemented in the absence of consent by the Arab people of
Palestine and the Arab States. The representatives of the Zionist movement in Palestine had however
accepted its terms, notably in a declaration reiterated in connection with Israel’s admission to the
United Nations263. Israel’s acceptance of resolution 181 constituted acknowledgment by it that
Jerusalem did not form part of the territory attributed to it. That commitment was repudiated during
the 1948 war.
(c) Israel’s annexation of West Jerusalem during the 1948 war
357. When war broke out between the Arab armies and Israel’s military forces in 1948, the
fighting was particularly violent in Jerusalem. As in the rest of Palestine, the Israeli armed forces
drove the Arab population to flee. It is estimated that 60,000 Christians and Muslims were expelled
from the whole of the district of Jerusalem264. In November 1948 a local ceasefire recorded the
position of the two armies at that moment. It enshrined the de facto division of the city into two,
along a curved north-south line that ran along the western wall of the Old City. The western sector
was under Israeli control while the eastern section including the Old City and the Holy Places was in
the hands of the Transjordanians.
The powerlessness of the United Nations
358. The United Nations did not accept that situation. However, casting aside the broad tenets
of the plan for Jerusalem outlined by resolution 181 and the plan drawn up by the Trusteeship
Council, resolution 194 of 11 December 1948 entrusted the Conciliation Commission for Palestine
with drawing up a detailed statute for the Holy City265. In September 1949, the Commission
submitted a new plan which in reality enshrined the partition of the city between Israel and
Transjordan and proposed that the management of Jerusalem be placed in the hands of a Council
composed of Jewish and Arab representatives and representatives of the United Nations. A
commissioner would be responsible for military control of the city and for ensuring free access to
the Holy Places. It was no longer a question of the full territorial internationalization of Jerusalem,
but merely of limited functional internationalization.
359. That plan was robustly opposed by a number of States. On 9 December 1949, by
resolution 303, the General Assembly, abandoning the plan presented by the Conciliation
Commission, reverted to the internationalization formula that had been proposed by
resolution 181266. It called on the Trusteeship Council to draw up a new plan to that effect. However,
in the absence of a majority likely to approve it, this plan would not be put to a vote of the General
263 Supra, paras. 124-12[5].
264 Youakim Moubarac, “La question de Jérusalem”, Revue d’études palestiniennes, No. 6, winter 1983, p. 49. See
also Ann. 53, “The Status of Jerusalem”, United Nations, New York, 1997, p. 6.
265 See Ann. 17.
266 United Nations General Assembly resolution 303 (IV), Palestine: Question of an international regime for the
Jerusalem area and the protection of the Holy Places, 9 December 1949.
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Assembly. The Member States were divided between those who wished to formalize the division of
the city and those who adhered to the idea of imposing territorial internationalization.
360. The United Nations had therefore reached an impasse on the question of Jerusalem. On
26 January 1952, by resolution 512 the General Assembly acknowledged by implication that it was
unable to resolve the question of Jerusalem, which was therefore now left with no governing
régime267.
361. On the ground, the western and eastern sections of the city, controlled by the Israelis and
the Transjordanians respectively, were separated by a “no man’s land” in two sectors. Under
agreements concluded between Israel and Transjordan in July 1948268, Mount Scopus, in the eastern
sector of the city, was an international demilitarized zone under the authority of the United Nations.
A second neutral zone was established in August 1948 by the Truce Commission, under the name
“Government House sector”, which included the former residence of the British government, an Arab
school and the School of Agriculture. That situation was governed by the Israeli-Jordanian Armistice
Agreement concluded in Rhodes on 3 April 1949 (Article V, paragraph 1, subparagraph (b)) and
approved by the Security Council on 11 August 1949269. Parts of those zones were placed under the
control of United Nations forces270. Moreover, the agreements referred to above were concluded
under the auspices of the United Nations.
267 United Nations General Assembly resolution 512 (V), Report of the United Nations Conciliation Commission
for Palestine, 26 January 1952.
268 Special agreement concluded on 7 July 1948 and two agreements of 21 July and 30 November 1948.
269 Ann. 54, General Armistice Agreement between the Hashemite Jordan Kingdom and Israel of 3 April 1949,
Security Council, Official Records, Fourth year, S/1302/REV.1.
270 On the status of those zones, see Guy Feuer, “Le statut des zones de Jérusalem contrôlées par l’ONU”, Annuaire
français de droit international, 1966, pp. 245 et seq.
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Map No. 14, from Guy Feuer, Annuaire français de droit international, 1966, p. 246.
Echelle approximative: Approximate scale:
Zone du Mont Scopus Mount Scopus area
Secteur contrôlé par Israël Sector controlled by Israel
Porte Mandelbaum Mandelbaum Gate
Vielle ville Old City
Secteur contrôlé par la Jordanie Sector controlled by Jordan
Secteur de government House Government House sector
Lignes de démarcation de l’armistice Armistice Demarcation Lines
Zone de la Croix-Rouge Red Cross zone
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“Ligne civile” israélienne dans le secteur de
government House
Israeli “civilian line” in the Government House
sector
“Ligne de 7 juillet” dans la Zone du Mont
Scopus
“7 July line” in the Mount Scopus area
“Ligne de 21 juillet” dans la Zone du Mont
Scopus
“21 July line” in the Mount Scopus area
Hôpital Hadassah Hadassah Hospital
Université hébraïque Hebrew University
Hôpital Augusta Victoria Augusta Victoria Hospital
Village d’Issaouïa Village of Al-Issawiya
“Jardin de Salomon” “Solomon’s Garden”
Israel’s policy on Jerusalem following its conquests in 1948
362. From the time of its declaration of independence Israel, had shown itself hostile to any
plan to internationalize the City of Jerusalem, accepting at most international control of the Holy
Places. The Israelis’ objective had been clear since their declaration of the State of Israel: to take
over Jerusalem entirely and make it their political capital. As early as December 1949, in the days
following the United Nations resolution reaffirming that Jerusalem should remain under an
international régime, the Government headed by David Ben Gurion decided to transfer the seat of
government and the ministries from Tel Aviv to Jerusalem. A few days later, the Israeli Parliament
moved to the city.
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Map No. 15, Jerusalem, history, 1947- 2017.
SYRIE SYRIA
JORDANIE JORDAN
ÉGYPTE EGYPT
VIELLE VILLE OLD CITY
Porte d’Hérode Herod’s Gate
Pte de Damas Damascus Gate
Pte Neuve New Gate
Pte de Jaffa Jaffa Gate
Pte Saint-Étienne St Stephen’s Gate
Porte Dorée Golden Gate
Dôme du Rocher Dome of the Rock
Mosquée Al-Aqsa Al-Aqsa Mosque
- 114 -
Pte des Maghrébins Maghrabi Gate
Pte de Sion Zion Gate
Mur occidental Western Wall
QUARTIER MUSULMAN MUSLIM DISTRICT
QUARTIER CHRÉTIEN CHRISTIAN DISTRICT
QUARTIER DES MAGHRÉBINS MAGHRABI DISTRICT
QUARTIER ARMÉNIEN ARMENIAN DISTRICT
Quartier des ministères Ministry district
Cour suprême Supreme Court
Université hébraïque Hebrew University
Musée d’Israël Israel Museum
Hôpital Hadassah Hadassah Hospital
JÉRUSALEM-OUEST WEST JERUSALEM
JÉRUSALEM-EST EAST JERUSALEM
Nations Unies United Nations
Mont Scopus Mount Scopus
Mont des Oliviers Mount of Olives
Ligne verte (armistice de 1949) Green Line (1949 Armistice)
Limite municipale de Jérusalem divisée
(1949-1967)
Municipal boundary of divided Jerusalem
(1949-1967)
Limite de Jérusalem après la conquête de 1967 Boundary of Jerusalem after the 1967 conquest
Principaux bâtiments publics Principal public buildings
Zone bâtie Built-up area
BETHLÉEM BETHLEHEM
363. In a letter to the Israeli Prime Minister, the United Nations Conciliation Commission for
Palestine emphasized that those measures were incompatible with the United Nations resolutions and
should be revoked. The issue was to be crucial during the debates in the General Assembly on Israel’s
admission to membership of the Organization. During those discussions, Israel’s representative
declared:
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“The Government of Israel advocated the establishment by the United Nations of
an international regime for Jerusalem concerned exclusively with the control and
protection of Holy Places, and would co-operate with such a regime.
It would also agree to place under international control Holy Places in parts of its
territory outside Jerusalem, and supported the suggestion that guarantees should be
given for the protection of the Holy Places in Palestine and for free access thereto.”271
Pressed to give his reasons for opposing the régime consisting of the internationalization of the whole
of the Holy City as proposed by the United Nations, Israel’s delegate replied that he would submit
proposals differentiating between the powers of an international régime with respect to the Holy
Places and the aspiration of the Government of Israel to be recognized as the sovereign authority in
Jerusalem.
364. Following the failure of the Trusteeship Council to secure the adoption of an
internationalization plan by the Member States, Israel informed the Council that the Statute of
Jerusalem could not be implemented on account of the creation of Israel and because the western
section of the city had been integrated into its territory. The United Nations therefore abandoned any
plan to internationalize Jerusalem. In the ensuing years, the Conciliation Commission for Palestine
put its efforts into actions directed at refugees and the identification of their property. In relation to
Jerusalem, it put the value of the property of the evicted Arab population at 9.25 million Palestinian
pounds at 1947 prices272.
365. On 23 January 1950, the Knesset declared the western section of Jerusalem the single
capital of Israel (by 50 votes to 2). From 1952, the area of West Jerusalem expanded westwards at
the expense of Palestinian villages and would continue to do so to the point of doubling in size. At
the same time the Jewish State was attempting to persuade other countries to move their diplomatic
missions from Tel Aviv to Jerusalem. In the 1950s, the major Western Powers and Russia were
unfavourable to the idea. Other countries, however, allowed themselves to be persuaded. The trend
gradually increased. By the eve of the 1967 war, some 20 diplomatic missions were based in
Jerusalem.
366. East Jerusalem was still an Arab city under Jordanian administration. It consisted of
districts that differed according to the Holy Places of the various religions.
271 See Ann. 18 [sic], p. 236.
272 See Ann. 53, “The Status of Jerusalem”, p. 11.
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Map No. 16, The Old City of Jerusalem before the Israeli occupation. From Michael Dumper, “Colons et colonies dans
la Vieille ville de Jérusalem : 1980-2000” in Jérusalem, le sacré et le politique, Farouk Mardam-Bey and Élias Sanbar
(eds.), Arles, Actes Sud, 2000, pp. 274-275.
La Vieille ville de Jérusalem avant l’occupation
israélienne
The Old City of Jerusalem before the Israeli
occupation
Porte de Damas Damascus Gate
Porte Nouvelle New Gate
Porte de Saint-Étienne St Stephen’s Gate
QUARTIERS MUSULMANS MUSLIM DISTRICTS
Patriarcat latin Latin Patriarchate
Patriarcat grec Greek Patriarchate
QUARTIERS CHRÉTIENS CHRISTIAN DISTRICTS
Saint Sépulcre Holy Sepulchre
route Bab al-Sisilia Bab al-Sisilia street
Porte de Jaffa Jaffa Gate
- 117 -
Dôme du Rocher Dome of the Rock
Mosquée al-Buraq Al-Buraq Mosque
Mosquée Al-Aqsa Al-Aqsa Mosque
Citadelle Citadel
Remparts de la ville City walls
Ptar. Arménien Armenian Patriarchate
Quartier Arménien Armenian district
quartier juif Jewish district
Porte des Maghrébins Maghrabi Gate
Aqueduc souterrain Underground aqueduct
NORD North
2. Israel’s complete takeover of Jerusalem from 1967
367. This takeover was initially the outcome of the military operations of 1967 (a). It was then
continued by means of legislative measures and an uninterrupted policy of settlement and expansion
(b). The irreversible nature of the Israeli takeover of the city was reflected in the fact that when peace
negotiations commenced it would be impossible to make progress on that point (c).
(a) The conquest by force of East Jerusalem and its effects on the ground
368. During the Six-Day War, Israel seized the eastern districts of Jerusalem by force on 5 June
1967. The Security Council’s adoption of resolution 233 of 6 June 1967 calling for an immediate
ceasefire produced no effect. The 135 dwellings in the Maghrabi Quarter, dating from the fourteenth
century, were dynamited, causing the eviction of 650 people.
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Map No. 17, Map 4. Jerusalem occupied and expanded by Israel in June 1967, in Annex 55, The Status of
Jerusalem, New York, United Nations, 1997, p. 16.
369. The residents of East Jerusalem were all remembering the events of 1948. Ibrahim
Dakkak, a young Palestinian engineer living in Jerusalem, recounted the experiences of the Arab
inhabitants of the city: “[T]he weather forecast for Jerusalem was given on Radio Israel but no longer
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on Radio Amman . . . We knew that Jerusalem had fallen into the hands of the Israeli forces. What
could we do? Was history going to repeat itself? Would the same happen as in 1948?”273
370. Yet in 1967 there was no spontaneous flight by the Arab population. East Jerusalem had
been developed little since 1948 and had only some 70,000 inhabitants. As early as 27 June 1967,
the Knesset passed three framework laws modifying the status of Jerusalem as defined by the
Armistice Agreement signed on 3 April 1949 between Israel and Jordan. The Israeli laws and
institutions applicable in the western section of the city were extended to the entire city. The
boundaries between the two sectors of the city were abolished. Israel passed a law on the protection
of the Holy Places, which were thus de facto under its sole control. The inhabitants of the eastern
section boycotted the municipal elections and in a few years the municipal institutions would be in
the hands of the former West Jerusalem staff.
371. Incidents and attacks occurred from 1968 and international condemnation spread. It was
first expressed at the United Nations General Assembly, which found the measures taken by Israel
to be invalid and called on Israel to rescind them274. A Security Council resolution of 3 July 1969,
with the favourable vote of even the United States representative, clearly censured the Israeli policy
and denounced the expropriation and confiscation of property and the demolition of buildings, which
it declared unlawful, and called on Israel to rescind all those measures as a matter of urgency275.
372. Notwithstanding condemnation of the military occupation of the city, Israel would
transform it into an annexation by the Law of 29 July 1980, which declared: “Jerusalem, whole and
united, is the capital of Israel. Jerusalem is the seat of the President of the State, the Knesset, the
Government and the Supreme Court”276. In the wake of the vehement international criticism triggered
by the annexation, the countries that had set up their diplomatic missions in Jerusalem in the 1950s
moved them back to Tel Aviv.
373. The following years would see an increase in incidents. There have been so many that it
is impossible to recount them all. They have been the subject of detailed reports by the United
Nations277. The Palestinian inhabitants of Jerusalem are subject to numerous restrictions on their
rights in all areas of life. Since the city was occupied by Israel in 1967, Palestinians living within the
city boundaries (according to the broad definition of Jerusalem used by the Jewish State) are treated
as permanent residents in the State of Israel. However, those who were not physically present at the
time of the 1967 census lost that status (a situation which affected some 8,000 people). To travel
abroad, residents must apply for a permit that is valid for three years. Failure to renew the permit
leads to forfeiture of residency status. The status is automatically lost if someone stays abroad for
more than seven years. Going to a neighbouring village in the West Bank is likewise grounds for
losing residency status. Non-resident spouses and the children of residents do not automatically
become residents. They have to apply for residence and it is unlikely to be granted. In March 2018,
273 Ibrahim Dakkak, “Juin 1967, la résistance au quotidien”, in Jérusalem. Le sacré et le politique, F. Mardam-Bey
and E. Sanbar (eds.), Arles, Sindbad, Actes Sud, 2000, p. 244 et seq. [Translation by the Registry].
274 United Nations General Assembly resolutions 2253 (ES-V) of 4 July 1967 and 2254 (ES-V) of 14 July 1967.
275 Security Council resolution 270 of 26 August 1969.
276 See Ann. 53, “The Status of Jerusalem”, New York, United Nations, 1997, p. 13.
277 Among the most recent, see Human Rights Council, Fifty-second session, 27 February-31 March 2023, Annual
report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner
and the Secretary-General, “Human rights situation in the Occupied Palestinian Territory, including East Jerusalem, and
the obligation to ensure accountability and justice”, 13 February 2023, A/HRC/52/75; and General Assembly, “Israeli
settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan” — Report
of the United Nations High Commissioner for Human Rights, A/HCR/52/76, 15 March 2023.
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the Israeli Parliament passed a law enabling the Minister for the Interior to confiscate the papers of
any inhabitant of Jerusalem who has committed an offence punishable by Israeli law or who has
merely “espoused ideas not in line with the interests of Israel” [Translation by the Registry].
374. Other restrictions have been imposed on the civil rights of Jerusalem’s Palestinians.
Arabic-language publications are censored, a number of newspapers have been banned, educational
and cultural institutions have been closed and their representatives have been arrested. Since the start
of the Oslo negotiations in 1993, many offices associated with the Palestinian Authority have been
closed. Palestinians were authorized to participate in the elections of January 1996. However, of
those entitled to participate, only 30 per cent did so, since most feared jeopardizing their residency
status by voting. Lastly, the restrictions on the movement of people and goods between Jerusalem
and the West Bank and Gaza have had dire consequences on the rights of Palestinians and their living
conditions278.
(b) The Judaization of East Jerusalem through settlement
375. Immediately after the occupation of East Jerusalem in 1967, the Israeli authorities decided
on a policy of intensive settlement. Speaking before the Security Council on 3 May 1968, Rouhi El-
Khatib, a former mayor of Jerusalem, stated that the Israeli project could also “contain the Arabs of
Jerusalem in a limited space, which will ultimately reduce their numbers and afford Israel the
opportunity to bring in new immigrants and make Jews the majority of the population in Arab
Jerusalem in a few years”279.
376. The Israeli authorities expanded the municipality from the 6 q km of its previous area to
73 sq km and created two circles of settlements surrounding the city, taking over 28 Palestinian
villages. Some 10 km from the city centre, the band of settlements comprising Efrat, Gilo, Har Homa,
Maaleh Adumim, Bet El and Psagot encircled the Palestinian districts and has prevented their
development. Labelled “Greater Jerusalem”, this expansion included 330 sq km gained from the
West Bank. Every means has been deployed to prevent the development of Palestinian districts and
expand the Israeli settlements. Thus, for example:
“the Jabal Abu-Ghneil hill on the outskirts of Jerusalem on the road to Bethlehem was
declared a ‘protected green space’ in 1969 and then turned into a ‘residential zone’ in
1996 in order to build the Har Homa (literally ‘mountain barrier’) settlement, which
now has nearly 15,000 inhabitants”280.
377. The second circle of settlements, known as “Metropolitan Jerusalem”, swallowed 665 sq
km of the West Bank. It covers a region stretching “from Ramallah in the north to Bethlehem in the
South, Maaleh Adumim in the east, and Mevasseret in the west in one metropolitan area”281.
278 For more information, see Ann. 53, p. 21 et seq.
279 See Ann. 53, p. 17.
280 Vincent Lemire, “L’impossible capitale”, in [L’Histoire,] monthly edition 436,
https://www.lhistoire.fr/limpossible-capitale.
281 See Ann. 53, p. 18.
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Map No. 18, Map 5. Israeli settlements in and around Jerusalem, Annex 55, p. 20.
378. That trend increased after signature of the Oslo Accords. On the pretext of “natural”
demographic growth, the Israeli Government has authorized the construction of tens of thousands of
new housing units intended to extend existing settlements towards the Dead Sea and the Jordan
Valley. The Arab districts are separated by the wall.
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Map No. 19, The fragmentation of “Greater Jerusalem” as a result of Israeli settlement, from Henri Amiot, “À relire, en lien
avec l’actualité : Jérusalem, une ville divisée chargée de symboles”, Les clés du Moyen Orient, 8 December 2017.
Mont Scopus Mount Scopus
Israël en 1949 Israel in 1949
Cisjordanie, zone B ou C (contrôle d’Israël) West Bank, Area B or C (Israeli control)
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Cisjordanie, zone A (contrôle de l’Autorité
palestinienne)
West Bank, Area A (control of the Palestinian
Authority)
Quartier ou village palestinien Palestinian district or village
Quartier ou colonie israélien(ne) Israeli district or settlement
Réalisé par H. Amiot avec Adobe Illustrator
pour © Les Clés du Moyen Orient
Created by H. Amiot using Adobe Illustrator
for © Les Clés du Moyen Orient
Zone incorporée de fait á Jérusalem avec le mur Area de facto incorporated into Jerusalem as a
result of the wall
Désenclavement par l’Ouest Enclave broached to the west
Désenclavement par l’Est Enclave broached to the east
“Zone verte” (construction contrôlée) “Green space” (regulated construction)
Limites municipales de la Jérusalem “réunifiée”
(1967)
Municipal boundaries of “reunified” Jerusalem
(1967)
Vie[i]lle ville Old City
In 1978 an association, Ateret Cohanim, was set up, which works explicitly to promote the
“reconquest” of the Old City of Jerusalem, house by house. In 1994, the Israeli Minister of Defence
set out the plan for the defence of Jerusalem: “The consolidation of the existing territorial continuity
through expansion of settlements as well as construction of roads, tunnels and bridges and further
land acquisition, would be presented in the future negotiations as a geographic fact.”282
379. In a 1994 report, a non-governmental organization observed that this Israeli policy had
led to 21,000 Palestinian families being homeless and having to stay with other Palestinians and that,
denied building permits, many of those families had been forced to leave the city (a figure estimated
at that time as 50,000).
380. The situation has deteriorated considerably over the years. Between 2012 and 2021, 1,407
Palestinian houses were demolished in East Jerusalem and the number of Palestinians compelled to
demolish their own properties increased (16 in 2013, 58 in 2019, 89 in 2020 and 101 in 2022).
Demolition is the only way they can avoid paying the heavy fines and costs imposed when the
destruction is carried out by the Israeli municipal authority.
381. Over the last 10 years, the number of plans submitted and approved for the construction
of settlements has increased, threatening to cut Jerusalem off from the rest of the West Bank.
“On 5 September 2022, Israel advanced plans for some 700 units in the planned
settlement of Givat Hashaked in East Jerusalem and planning processes moved forward
for the expansion of the Har Gilo settlement on the lands of the Palestinian village of
282 See Ann. 53, p. 18.
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Al-Walaja, placing over 304 Palestinian people (151 children, 80 men and 73 women)
under imminent risk of forced displacement.”283
A ring road under construction (which is barred to Palestinians) will connect the settlements south
of Jerusalem with those to the east of Jerusalem. In order to build it, an expropriation order was
issued affecting 55 dunams of land in the Palestinian village of At-Tur. A tramway has been built
linking the distant settlements of the metropolitan area with the city centre.
382. The Israeli courts have moved towards greater tolerance of these practices. Whereas the
High Court of Justice had since 1979 outlawed the use of military orders to expropriate land for the
purpose of settlement, a judgment of 28 February 2022 held that the Israeli security forces were
justified in requisitioning a private Palestinian property in Hebron in order to establish a new
settlement on the land284.
(c) Israel’s claim that the complete Judaization of Jerusalem is irreversible and the impasse
reached in the peace negotiations on this point
383. Israeli leaders, flouting all the United Nations resolutions, have consistently asserted that
they will never put an end to the settlement policy. Their agenda is thus to test their impunity within
the international community and to reaffirm the irreversibility of Israeli sovereignty over Jerusalem.
In May 2010, Benjamin Netanyahu stated: “The Israeli Government has not pulled back and will not
pull back in response to the United States and will continue to build everywhere in Jerusalem, the
capital of the Jewish people for eternity”285. He repeated the message in May 2011 before the United
States Congress, where he reiterated his refusal to withdraw from East Jerusalem and accept partition
of the city.
384. During the various phases of negotiations that have punctuated the years since the start
of the Oslo process, the question of Jerusalem, together with that of the return of exiles, has remained
the stumbling block to any positive outcome of the talks entered into. At the very start of the
negotiations that would lead to the Oslo Accords in 1993, the Declaration of Principles on Interim
Self-Government Arrangements of 13 September 1993 stated that the question of Jerusalem was one
of the remaining issues whose resolution was reserved to a subsequent stage, that of the permanent
status negotiations286.
385. At the start of the 2000s, at the instigation of the United States, negotiations seemed to
enter a more active phase. What was proposed at that time for the capital of the State of Palestine is
indicative of Israel’s position of denying all aspects of the right of peoples to self-determination for
the Palestinian people, in particular the right to establish its capital in the city of its choice. Ehud
Barak’s position was presented as one amenable to the division of Jerusalem as the capital of both
States. However, the part reserved for an Arab State was not East Jerusalem. The area in question
was instead that identified as “Al Qods”, beyond the area annexed by Israel in 1967. That ambiguous
definition poorly camouflaged a refusal to partition the city and the relegation of the future capital of
the State of Palestine to Abu Dis, a village on the periphery of Jerusalem. This village, approximately
283 Ann. 49, para. 6.
284 See Ann. 49, para. 18.
285 Le Monde, AFP, 20 May 2010 [Translation by the Registry].
286 See Ann. 29, Declaration of Principles on Interim Self-Government Arrangements of 13 September 1993,
Art. V, para. 3.
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3 km from the Arab city of Jerusalem, is one of a group of three villages, which had been within the
boundaries of Jerusalem under Jordanian administration.
386. Signalling the fact that to Israel its occupation of Jerusalem — both West and East — is
irreversible, that proposal was testament to the contempt in which the Israeli negotiators and their
allies held the future Palestine, whose institutions were thus intended to have their seat in a village
in the suburbs. When negotiations resumed in Taba in 2002, after the outbreak of the second Intifada,
the Israeli proposal for the capital of the State of Palestine was unchanged. Although Jerusalem was
shown as the capital of both States, it was with the same sleight of hand as before: Jerusalem — West
and East — would be the capital of Israel and the village of Abu Dis on the periphery would be the
capital of Palestine. The negotiations failed and the question of Jerusalem (together with the right of
return for exiles) has ever since remained one of the principal stumbling blocks to any settlement of
the conflict.
B. The annexation of Jerusalem, an emblematic violation of the right of the Palestinian people
to self-determination and to choose its capital within its territory
387. An analysis of the situation of Jerusalem in the light of international law involves
examining what is encompassed by the expression “status” of Jerusalem (1); exploring the best way
to ensure free access to the Holy Places (2); and confirming the right of the Palestinian people to
self-determination in a territory that includes the whole of the City of Jerusalem and the right to have
that city as its capital (3).
1. The question of the “status” of Jerusalem
388. United Nations resolutions have repeatedly condemned the measures that have modified
the “status” of Jerusalem. Resolution 476 of 30 June 1980 can be taken as an example:
“4. Reiterates that all such measures which have altered the geographic,
demographic and historical character and status of the Holy City of Jerusalem are null
and void and must be rescinded in compliance with the relevant resolutions of the
Security Council.” (Emphasis added.)
However, the use of the term “status” has led to a degree of confusion* on account of the meaning
given to the term in United Nations resolution 181. In its third part, which deals with Jerusalem, after
announcing in Section A that the city would be placed under a “special régime”, the resolution
contained a Section C entitled “Statute of the city”. This was a matter of the city being administered
by neither the Jewish State nor the Arab State envisaged in the plan of partition and of it being
provided with a régime of demilitarization and internationalization.
389. However, what was a proposal in resolution 181 did not acquire normative force. The
Trusteeship Council was never able to produce the more detailed statute requested of it and the
Security Council was never able to take measures to implement the plan of partition. Resolution 181
as a whole and the part concerning Jerusalem in particular were abandoned. Yet that abandonment,
* [The French term “statut” has the meanings of both “status” and “statute”.]
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formally acknowledged by the United Nations itself287, of the plan to internationalize the City of
Jerusalem did not leave the city without a “status”.
390. The fact that the United Nations uses that term, even though the “status” envisaged in
1947 has fallen away, is clearly because the term is being given a different meaning. Since the United
Nations has consistently condemned the annexation of Jerusalem, the term “status” cannot refer to a
validation of Israel’s claim to sovereignty. There is therefore only one other plausible hypothesis,
namely that the “status” of Jerusalem is that of a territory under military occupation by a foreign
Power, as the whole of the Palestinian territory has been since 1967. The end of that occupation
would enable the occupied people to recover its sovereignty. Yet do the peculiar circumstances of
Jerusalem and the presence of the historical places of worship in the territory of Jerusalem justify the
need for a specific legal régime for the city? They do not, because it is sufficient that the State having
sovereignty over the city applies international law in order to ensure protection of those sites and
freedom of access.
2. International guarantees of access to the Holy Places and measures to conserve them
391. The concerns that had brought the Members of the United Nations to the idea of a special
status for Jerusalem are understandable. The city houses symbolic and very ancient sites which are
pilgrimage destinations for adherents of the major monotheistic religions. Because they are fragile,
special measures must be taken to preserve these sites. Because they are very heavily visited, they
must be accessible to all those who wish to come and pray. Yet there is no reason why those concerns
should interfere with the question of sovereignty over the City of Jerusalem. That question must be
resolved in and of itself. Once it has been determined which State has jurisdiction over the part of
the city where the Holy Places are located, that State is then bound to respect certain obligations
under international law in relation to the Holy Places.
392. Freedom of access to places of prayer and pilgrimage is guaranteed by the general
freedom of movement that forms part of the international corpus of human rights. It flows from
Article 1[3] of the Universal Declaration of Human Rights of 10 December 1948288. It was confirmed
by Article 1[2] of the United Nations Covenant on Civil and Political Rights of 23 March 1976289.
While admittedly, under Article 1[2], paragraph 3, the State where the site is located may regulate
that freedom (as it can all the others), it can do so only on the specific grounds referred to in the
Covenant, the principal of which concerns public order and national security. Israel, the holder of
287 Supra, para. 360, United Nations General Assembly resolution 512 of 26 January 1952.
288 “Art. 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.”
289 “Art. 12
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by
law, are necessary to protect national security, public order (ordre public), public health or morals or
the rights and freedoms of others, and are consistent with the other rights recognized in the present
Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.”
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usurped sovereignty over Jerusalem, has arbitrarily abused that ability to curb access to the Holy
Places, to the detriment of Muslims in particular.
393. The places of prayer must be not only accessible to the public; they must also be protected
so that they are not damaged. However, it is not necessary to resort to a special status for that purpose.
UNESCO was created to perform that function and to contribute to finding the best ways to protect
sites, working with, and regrettably sometimes against, the States concerned. The international rules
issued by UNESCO for the protection of world heritage are such as to safeguard conservation of the
Holy Places of the different religions and the right of access to them.
394. Since 1968, the General Conference of UNESCO has laid down the principles that Israel
is strictly bound to accept, that is to say, it must respect the cultural heritage of the city and refrain
from modifying it. In 1976 the Director-General had reason to arrange an inspection of breaches by
Israel290. Friction persists in respect of the cultural heritage of Jerusalem. Tensions have been
particularly high since 2016, and a series of decisions has been issued in the wake of the many
Security Council resolutions (252, 476 and 478) and the UNESCO resolutions deprecating Israeli
attempts to alter the status of the Holy City of Jerusalem. The decision of 5 June 2017, recalling in
its preamble those earlier resolutions of the international community:
“Affirm[s] the importance of the Old City of Jerusalem and its Walls for the three
monotheistic religions [and aims] at the safeguarding of the cultural heritage of
Palestine and the distinctive character of East Jerusalem
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[d]eeply regrets the Israeli refusal to implement previous UNESCO decisions
concerning Jerusalem
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[d]eeply deplores the failure of Israel, the occupying Power, to cease the persistent
excavations and works in East Jerusalem particularly in and around the Old City, and
reiterates its request to Israel, the occupying Power, to prohibit all such works in
conformity with its obligations”291. [(emphasis added)]
Indifferent to those decisions, Israel has pursued a policy in Jerusalem oriented entirely to benefiting
the Jewish population and culture and with no regard for conservation of the city’s multicultural
heritage.
3. Jerusalem (in common with the whole of the West Bank and Gaza) is Palestinian territory
by virtue of the right of peoples to self-determination, which must be exercised in full
395. Both parts of Jerusalem, West (a) and East (b), have been illegally occupied by force of
arms by Israel. That occupation must not be allowed to impede either the sovereignty of Palestine or
the right of that State to make Jerusalem its capital.
290 See Raymond Goy, “La question de Jérusalem à l’UNESCO”, Annuaire français de droit international, 1976,
pp. 420 et seq.
291 Ann. 55, UNESCO, Executive Board, Decision, Occupied Palestine, 201st session, 19 April-5 May 2017, 201
EX/Decisions, pp. 39-41.
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(a) The uncertainty surrounding West Jerusalem
396. Israel’s ambition to annex the City of Jerusalem in its entirety has no basis in law, either
in respect of the western section annexed in 1950 or in respect of the eastern section annexed in 1980.
As regards the western section, it will simply be recalled here that in 1948 Israel forcibly conquered
territories to which that State had no title, and that its purported sovereignty over West Jerusalem has
no basis in law. Neither the Charter of the United Nations nor the customary or treaty-based law of
occupation permit the sovereignty of a State to be recognized where that State is the occupier by
military force of a territory to which it has no title.
“Application of Israeli law to the western part of Jerusalem from 1948, the
transfer of the main institutions to that sector and the first declarations, made the same
year, that Jerusalem (without further qualification) is ‘the eternal capital of Israel’ and
‘an inseparable part’ of the Jewish State therefore seem to be devoid of any legal
basis”292.
397. As in the case of all the territories that Israel conquered by force of arms in 1948, the
legal situation of West Jerusalem therefore remains uncertain in law. No act consistent with
international law has thus far caused the Palestinian people to forfeit its right to self-determination
over its historical territory. The situation of West Jerusalem will therefore only be settled in favour
of Israel by a peace agreement with Palestine.
(b) The measures taken by Israel since 1967 in respect of East Jerusalem are illegal under
international law and violate the sovereign right of the Palestinian people to choose its capital
A general violation of the right of the Palestinian people to self-determination
398. It is not our intention here to review all the United Nations resolutions and all the reports
provided to the General Assembly by the various organs, including the Human Rights Council, on
the subject of the violations of international law committed by Israel in East Jerusalem since the city
was occupied in 1967293. Those violations constitute war crimes and engage the individual criminal
responsibility of the persons involved. Violence by settlers, protected by the Israeli security forces,
gives rise to responsibility on the part of Israel, which has failed in its duty as the occupying Power
to protect Palestinians and their property294.
399. Nor are we going to review in detail the reasoning set out above in relation to the
Occupied Palestinian Territory295. As in respect of the rest of the West Bank and Gaza, the countless
very serious violations of human rights and of international humanitarian law committed in Jerusalem
are secondary violations that underpin the principal violation of the right of peoples to selfdetermination296.
The reports provided to the General Assembly by the various commissions
mandated by it emphasize how the policies of rapid settlement have reduced the likelihood of an end
to the occupation and violate the right of Palestinians to self-determination. In the case of Jerusalem,
292 Thierry Fleury-Graff, “A box of Realism : La décision des États-Unis d’Amérique de reconnaître Jérusalem
comme capitale d’Israël et d’y transférer leur ambassade”, Annuaire français de droit international, 2019, p. 66
[Translation by the Registry].
293 Those resolutions and reports are cited in Section IV above and underpin the arguments submitted in relation to
the Occupied Palestinian Territory as a whole.
294 See Ann. 49, paras. 58-62.
295 Supra, paras. 307-343.
296 See Ann. 40, para. 15.
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that principal violation is exacerbated by the fact that as a result of its de facto annexation of the city,
Israel’s violation of the right of peoples to self-determination comes hand in hand with a violation of
the prohibition of annexing territories conquered by force.
400. As elsewhere in the Occupied Palestinian Territory, Israel’s intention of destroying the
very foundations of any possibility of self-determination has taken the form in Jerusalem of attacks
against all the component elements of a State. Territory has been occupied using expropriation,
demolition and encirclement measures. The population has been forced into exile, unable to access
its means of subsistence. The Palestinian institutions have also been attacked.
Specific violation of the sovereign right of a State to choose its capital
401. In this respect, however, the attacks against the Palestinian institutions are exceptionally
grave. It is beyond doubt under international law that Jerusalem is not an Israeli territory but is a
territory where the right of peoples to self-determination applies to the benefit of Palestine. By virtue
of that right, the Palestinian people is free to choose where its capital should be based. It has
expressed that freedom since the end of the British Mandate.
402. If international law says anything at all on this question it is to prohibit one State from
placing its capital on the territory of another State or on disputed territory297.
“A careful reader might have noted that so far, the recognition of a capital city
has not been mentioned in the text. The reason is simple. International law does not
know such a recognition as an autonomous institution. The choice of the capital city, as
well as its potential change, are left to individual States. It could also be argued that the
recognition of the capital city is automatically entailed in the recognition of the State,
as such a recognition confirms that the State has the right to decide in its internal affairs.
However, this right is not unlimited and that is true even[] with respect to the choice of
the capital city. States may not choose as their capital a city which is located in the
territory of another State or a city whose legal status is disputed. Jerusalem falls into the
latter category.”298
403. Indeed, choosing a capital is a sovereign decision governed by the domestic law of each
State. Israel’s complete annexation of Jerusalem and the resolute irreversibility of that annexation
are therefore the most striking manifestation of the deeper significance of all Israel’s practices and
policies in Jerusalem: they condemn any political solution to failure by rendering nugatory the highly
symbolic capacity of a sovereign people, namely the capacity to establish its capital in the city of its
choice.
404. Israel has therefore placed itself in breach of international law and of the ensuing right of
the Palestinian people to an independent State. That right has nevertheless been reaffirmed many
times by United Nations bodies, including by the General Assembly resolution of 16 December 2019
297 Ann. 56, [Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America),
Application instituting proceedings,] 28 September 2018.
298 Veronika Bilkova, “Recognition of Jerusalem as the capital city of Israel – an acknowledgement of the obvious
or an unlawful act?”, Policy Publications, 22 January 2018, https://www.iir.cz/en/kontroverzni-otazka-jeruzalema-zpohledu-
mezinarodniho-prava-2.
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which “[r]eaffirms the right of the Palestinian people to self-determination, including the right to
their independent State of Palestine”299.
CONCLUSION: HOW THE POLICIES AND PRACTICES OF ISRAEL AFFECT THE LEGAL STATUS
OF THE OCCUPATION AND THE LEGAL CONSEQUENCES THAT ARISE FOR ALL STATES
AND THE UNITED NATIONS FROM THIS STATUS
405. The Organisation of Islamic Cooperation respectfully makes the following submissions
to the Court:
 The Court has jurisdiction to give the advisory opinion requested by the General Assembly in its
resolution A/RES/77/247 of 30 December 2022 and there is no compelling reason such as to
induce it to refuse.
 As demonstrated above, Israel’s policies and practices in the Occupied Palestinian Territory have
since the birth of that State given rise to a deliberate violation of the fundamental right of the
Palestinian people to self-determination, which entails the right to become a sovereign State
embodied in freely chosen institutions; the right to control its territory and have access to its
natural resources; the right for the members of that people to live on its territory; the right to
return to it for those who have been exiled and the right to establish its capital in that territory in
the city of its choice. That is the principal violation that Israel has been perpetrating methodically
for a century.
 That principal violation has only been possible through multiple other violations of international
law: violation of the prohibition of the use of force; violation of the various aspects of
humanitarian law in cases of armed conflict, primarily the prohibition of the occupying Power
transferring its own population into the occupied territory; multiple violations of all the human
rights guaranteed by international law.
 Those policies and practices by Israel have the effect that its occupation of the Palestinian
territory is an illegal occupation that must cease immediately and all of whose consequences
must be remedied. That remediation includes:
 withdrawal of the occupying military forces from the whole of the territory occupied by Israel
in 1967;
 ending the blockade of the Gaza Strip;
 releasing the Palestinians unjustifiably detained by Israel;
 guaranteeing freedom of movement between the different parts of the Palestinian territory
and to outside that territory;
 the right of return for all exiled Palestinians who so wish;
 the payment of reparation as established in the United Nations resolutions for those who do
not wish to return to the place from which they were driven;
 dismantling the settlements in the West Bank and East Jerusalem and fair reparation of all
expropriation and demolition of property and all infringements of human rights caused by
those illegal settlements;
299 United Nations General Assembly resolution 7[3/158] of 1[7] December 201[8].
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 recognition by Israel of East Jerusalem as the capital of Palestine.
 It follows from the illegal nature of that occupation and from the large-scale violations of
international law it has entailed since 1967 that the United Nations and all its Member States
have a duty to use all means within their reach to bring that illegality to an end. That duty
includes:
 in respect of the United Nations, using the means established by the Charter, in particular
through the system of penalties in Chapters VI and VII of the Charter, to bring an end to all
the actions by Israel that are contrary to international law;
 in respect of the International Criminal Court, investigating and trying the violations put
before it;
 in respect of the other States, refraining from collaborating with Israel in any way that might
be conducive to the above-mentioned illegal acts; using the diplomatic means available to
them to bring an end to those illegal acts; ultimately, using the procedures and penalties
through which they can bring pressure to bear on the policies and practices of Israel in the
Occupied Palestinian Territory in order to bring them to an end.
20 July 2023
on behalf of the Organisation of Islamic Cooperation.
(Signed) Hissein Brahim TAHA,
Secretary-General.
___________