23 Fall 2023 Territory” during that period. He wrote: “the West Bank between 1949 and 1967...was under Jordanian control...the West Bank had been placed under Jordanian authority.”10 Similarly, one can call the West Bank today, by virtue of the Oslo Accords, at least partially Israeli controlled territory or partial territory under the authority of Israel. Yet, the judge referred to the West Bank after 1967 as “Occupied Palestinian Territory” twice in his reasoning and did not at any point refer to the West Bank after 1967 as “Israeli controlled territory.”11 Judge Kooijmans accordingly shifted terminology, referring to the West Bank between 1949 and 1967 when Jordan controlled the West Bank as “under Jordanian control” and not as “Occupied Palestinian Territory,” and called the West Bank “Occupied Palestinian Territory” and not “under Israeli control” when Israel controlled or partially controlled the West Bank. Judge Kooijmans wrote that he failed to understand why the Court in its majority opinion omitted consideration of the legal status of the West Bank before 1967, though the Court majority purported to engage in a legal historical review of the West Bank.12 Judge Kooijmans' own reasoning, however, can explain the Court's omission. The legal status of the West Bank both before and after 1967 is almost the same. Israel has less control over the West Bank since the implementation of the Oslo Accords in 1993 than Jordan had before 1967. For those parts of the West Bank where under the Oslo Accords Israel has sole control, the state in control has changed. That is all. If Israel is going to be considered the occupier of the Palestinian people after the 1967 war, then Jordan must be treated as the occupier of the Palestinian people before the 1967 war. If Jordan is not considered to be the occupier of the Palestinian people before the 1967 war, then Israel cannot be considered the occupier of the Palestinian people after the 1967 war. The Court avoided ‒ and presumably wanted to avoid ‒ either of those conclusions, so the Court avoided discussing the subject. If the Court did not want to discuss the subject at that time, it would also presumably not want to discuss it now. If the Court assumed jurisdiction and proceeded to plough through this case, addressing this question would be inevitable. As for Gaza, the lack of basis for the charge of occupation is even more obvious, because Israeli forces withdrew from Gaza in 2005. One Hamas leader after another has claimed that Israeli occupation ended in 2005.13 It is unclear whether the Court would address the events since October 7, 2023, in its advisory opinion. Those events might be relevant to the question of occupation of Gaza to the extent that the Court finds that there was no occupation prior to October 7. If there was no occupation of Gaza prior to that date, have subsequent events changed that conclusion? The position of the Government of Israel is that it does not intend to occupy Gaza in response to the attack of October 7.14 As long as Israel maintains that position and acts on it, the conclusion of no occupation would stand. The second question asked in the request for an advisory opinion is “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?” Not every occupation is illegal under international law. The question needs rephrasing in light of this reality. Furthermore, the question is leading. It conveys its own answer. There is no question whether the policies and practices of Israel affect the legal status of the occupation. It is just assumed that there is an effect. There is little doubt that those who posed the question want the answer to be that the policies and practices of Israel render the occupation illegal. The question in substance is a request to affirm the views of the authors of the resolution, namely that what they characterize as the violations by Israel have made the occupation illegal, if it ever was legal. The Court can avoid the question of whether the occupation is illegal by finding that there is no occupation. It would be much simpler, however, to decline to address the request for an advisory opinion in its entirety. It would be next to impossible to stop halfway in answering the questions asked. In any court of justice, justice itself is on trial. In the ICJ, one can hope that justice will prevail. If not, there is always a further appeal to the court of public opinion. The appeal to the court of public opinion has no time or geographic limits. The submission in which I participated had both courts in mind. n David Matas is a lawyer based in Winnipeg, Manitoba Canada and senior honorary counsel to B'nai B’rith Canada. 10. Id., at para. 10. 11. Id., at paras. 29, 34. 12. Id., at para. 9. 13. Supra note 6. 14. “Israel does not seek to occupy Gaza, but 'credible force' needed ‒ Netanyahu,” REUTERS, Nov. 10, 2023, available at https://www.reuters.com/world/middle-east/israel-doesnot-seek-occupy-gaza-credible-force-needed-netanyahu2023-11-10/#:~:text=Nov%209%20(Reuters)%20%2D%20 Israeli,the%20emergence%20of%20militant%20threats
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