Special Issue הארגון הבינלאומי של עורכי-דין ומשפטנים יהודים (ע״ר) Written Statement submitted by the International Association of Jewish Lawyers and Jurists under ICJ Practice Direction XII in the Advisory Proceedings on the “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem” as initiated by UNGA A/RES/77/247 Fall 2025 No.75
The International Association of Jewish Lawyers and Jurists Honorary President: Judge Hadassa Ben-Itto z”l (Israel) President Emeritus: Irit Kohn (Israel) Lifetime Member: Irwin Cotler, Prof. (Canada) Honorary Vice Presidents: Oreste Bisazza Terracini, Dr. z”l (Italy), Joseph Roubache z”l (France) Board of Governors All members of the Executive Committee are members of the Board of Governors. Executive Committee President Meir Linzen (Israel) Deputy President Daniel Reisner (Israel) Vice President and Coordinator for International Organizations Pnina Sharvit Baruch (Israel) Vice President and Secretary General Rachel Levitan (Israel) Vice President and Treasurer Avraham (Avi) Doron (Israel) Vice Presidents Robert Garson (USA) Marcos Arnoldo Grabivker, Justice (Ret.), Prof. (Argentina) Maurizio Ruben (Italy) Acting Chief Executive Officer Sharon Banyan (Israel) Head of the Legal Center for Combating Antisemitism Avraham Yishai (Israel) Special Projects Coordinator Mala Tabory, Dr. (Israel) Representatives to the U.N. in Geneva (UNOG) Main Representative - Sharon Banyan (Israel) Hila Kugler-Ramot (Israel) Meir Linzen (Israel) Pnina Sharvit-Baruch (Israel) Representatives to U.N. Headquarters in New York Main Representative - Richard Horowitz (USA) Sharon Banyan (Israel) Hila Kugler-Ramot (Israel) Meir Linzen (Israel) Pnina Sharvit-Baruch (Israel) Representative to the European Parliamen Pascal Markowicz (France) Meir Linzen (Israel) Daniel Reisner (Israel) Pnina Sharvit Baruch (Israel) Rachel Levitan (Israel) Avraham (Avi) Doron (Israel) Marcos Arnoldo Grabivker, Justice (Ret.), Prof. (Argentina) Maurizio Ruben (Italy) Robert Garson (USA) Alan Sacks (Israel) Aleksandra Gliszczynska-Grabias, Prof. (Poland) Alyza D. Lewin (USA) Amos Shapira, Prof. (Israel) Avraham Yishai (Israel) Axel Freiherr von dem Bussche, Dr. (Germany) Baruch Katzman (Israel) Calev Myers (Israel) Carlos Schlesinger (Brazil) Dalia Tal (Israel) Dan Roskis (France) Daniel Benko (Croatia) David Benjamin (Israel) David Pardes (Belgium) Edna Kaplan-Hagler, Judge (Ret.) Dr. (Israel) Elyakim Rubinstein, Justice (Ret.), Prof. (Israel) Ethia Simha (Israel) Graham ZelIick, Prof. (UK) Hernan Najenson (Argentina) Hila Kugler Ramot (Israel) Irit Kohn (Israel) Isaac (Tzachi) Shragay (Israel) Jacques Cohen (France) Jeremy D. Margolis (USA) Jimena Bronfman (Chile) Jonathan David (Israel) Jonathan Lux (UK) Julia Andras (Austria) Maria Canals De-Cediel, Dr. (Switzerland) Michael H. Traison (USA) Michael Kempinski (Israel) Nathan Gelbart (Germany) Noemi Gal-Or, Dr. (Canada) Olaf Ossmann (Switzerland) Pascal Markowicz (France) Regina Tapoohi (USA) Richard Horowitz (USA) Ronit Gidron-Zemach (Israel) Roy Schondorf, Dr. (Israel) Ruben Pescara (Italy) Sarah B. Biser (USA) Stephen C. Rothman, Judge (Australia) Stephen R. Greenwald, Prof. (USA) Suzanne Wolfe-Martin (Malta)
Fall 2025 1 Contents President’s Message Meir Linzen 2 Preface Roy Schöndorf and Daniel Reisner 4 Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem Statement of the International Association of Jewish Lawyers and Jurists 8 Annex A: Israel’s Legal Claims to the West Bank 32 1. The Ottoman Empire – the last sovereign title over the West Bank 34 2. In place of Ottoman sovereignty – the creation of a Mandate 36 3. Terms of the Mandate – reconstituting a Jewish national home 37 4. The territorial scope of the Mandate included the present-day West Bank 37 5. The Mandate years – the terms and obligations of the Mandate remain unchanged 39 6. The continuation of the Mandate following the establishment of the United Nations and the rejection of the General Assembly partition plan 39 7. The establishment of the State of Israel – Israel retains its claims over the West Bank 42 8. Jordan’s claims to the West Bank and its renunciation thereof 44 9. Israeli control over the West Bank in 1967 and Security Council Resolutions 242 and 338 45 10. The evolving language used in UN Resolutions relating to the West Bank 46 11. Israel’s peace treaties with its neighbors left the status of the West Bank undetermined until a future political settlement 48 12. The “Oslo Accords” – Israel and the Palestinians agree to resolve their competing claims to the West Bank through bilateral negotiations 49 13. Concluding remarks 50 JUSTICE is published by The International Association of Jewish Lawyers and Jurists (IJL) 10 Daniel Frisch St. Tel Aviv 6473111, Israel Tel: +972 3 691 0673 Fax: +972 3 695 3855 office@ijl.org www.ijl.org © Copyright 2025 by IJL ISSN 0793-176X JUSTICE is published for members and friends of the International Association of Jewish Lawyers and Jurists. Opinions expressed in JUSTICE are those of their authors and do not necessarily reflect the views of JUSTICE or the International Association of Jewish Lawyers and Jurists. The accuracy of articles appearing in JUSTICE is the sole responsibility of their authors. Articles in English are welcome but should be preceded by a query to the IJL Advisory Board at office@ijl.org. Back issues of JUSTICE are available at www.ijl.org. JUSTICE - Special Issue No. 75, Fall 2025 Editor Mala Tabory, Dr. Special Advisor Irit Kohn, Adv. Advisory Editor Alan D. Stephens Academic Advisory Board Michael Bazyler, Prof. Noemi Gal-Or, Dr. Oren Gross, Prof. Moshe Hirsch, Prof. Deborah Housen-Couriel, Adv. Robert Katz, Prof. Michla Pomerance, Prof. Arie Reich, Prof. Nicholas Rostow, Prof. Robbie Sabel, Prof. Amos Shapira, Prof. Malcolm N. Shaw, Prof. Joseph H. Weiler, Prof. Steven E. Zipperstein, Prof. Legal Editorial Staff Shani Birenbaum Jennifer Farrell, Esq. Gavriella Lazarus Graphic Design Climax Design Studio Ltd. www.climax-design.co.il | 03-7516747
2 No. 75 JUSTICE am writing these lines immediately after the Simchat Torah holiday in the year 5786 according to the Hebrew calendar. This very same day, corresponding to October 7, 2023 in the Gregorian calendar, marked the beginning of the most serious event that has befallen the Jewish People since the Holocaust — the mass murder of Israelis, both Jews and Arabs, as well as foreign workers; rape, sexual abuse, injury, and mass kidnapping of both the living and the dead, by the Hamas terror organization. Yesterday and today have been days of joy and exultation, with the release of the 20 hostages who survived Hamas captivity and the beginning of the release of the bodies kidnapped by Hamas. At the same time, a ceasefire has come into effect, and we have the beginnings of the post-war arrangements for Gaza, as set out in President Donald Trump’s Plan. President Trump deserves high praise both for his steadfast support of the State of Israel since his election, as well as for his uncompromising stance against antisemitism in the United States of America, in all its manifestations. The Swords of Iron War (which the Government intends to rename as the War of Revival) was a war waged against Hamas in Gaza. It was a cruel war. Hamas is not only a ruthless terror organization, it is also the organization that controls Gaza. Throughout the war, Hamas systematically used its civilian population as a human shield and a strategic weapon in its war against the State of Israel. The civilian population in Gaza actively supported Hamas. Tens of thousands of its combatants went out to fight as members of Hamas’s ranks. The entire Gaza Strip, including hospitals, mosques, homes, and an extensive tunnel network underneath the entire area was, in effect, a Hamas military compound. Hamas had no consideration even for the lives of its own civilian population, deliberately endangering them to gain maximum advantage in the court of worldwide public opinion from the many casualties that it suffered. The War brought devastating consequences for the Palestinian people in terms of civilian casualties, both dead and wounded, and the mass destruction of buildings and infrastructure. At the same time it also dealt a serious blow to the legitimacy of the State of Israel’s use of military power in a civilian setting, and caused serious harm to Israel’s international standing, in light of serious allegations of breaches of international humanitarian law by the State of Israel. We hope that the War has indeed come to an end, and that the communities of the “Gaza envelope” will be able to live in peace and security. We also hope that Gaza can be rebuilt, and that this process will be accompanied by the rehabilitation of the standing and legitimacy of Israel around the world. In parallel to the military front, where Israel clearly had supremacy, the War also extended into the political and legal arenas. Even though the “cards were marked,” and the results were known in advance in the political and legal arenas, it is important not to abandon these fronts. It was expected that the International Court of Justice (ICJ) would ratify the finding that Judea and Samaria are Occupied Territory, and that the Israeli presence there is an ongoing and illegal occupation, with all the ensuing consequences. It was also expected that the United Nations would confirm these determinations. Nevertheless, the IJL considers it important that a balanced position be presented, as to both fact and law, regarding the legal status of Judea and Samaria, and President’s Message I Meir Linzen Photo: Idan Gross
3 Fall 2025 regarding the legitimacy of Israel's occupation of these territories. This issue of JUSTICE is dedicated in full to the presentation of the IJL to the ICJ on these topics. I would like to thank my Vice-President, Advocate Daniel Reisner, and Dr. Roy Schöndorf (together with many others whom I will not mention here by name) who devoted substantial time and energy to the presentation to the ICJ. The presentation is nothing short of an historic document that merits wide distribution. As a legal organization, we recognize the importance of the legal position on these issues. At the same time, we believe that the correct approach to settling the future of Judea and Samaria and the Gaza Strip is through negotiated and agreed upon political and diplomatic arrangements, and not through proceedings in legal forums or in resolutions by international organizations. We hope and pray that all the problematic issues can indeed be resolved, and that peace and prosperity will be bestowed on all the people in the region. It is our belief that a proper understanding of the legal issues underpinning many of the disputes between Israel and its neighbors will help pave the way toward a lasting peace in the Middle East. October 2025 Tishrei 5786
4 No. 75 JUSTICE n July 19, 2024, the International Court of Justice (the “ICJ” or the “Court”) issued its Advisory Opinion on Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (the “Advisory Opinion” or the “Opinion”), pursuant to United Nations General Assembly Resolution A/RES/77/247 of December 30, 2022. This was not the first or only occasion on which the Court has been asked to address the Israeli–Palestinian conflict. In 2004, it delivered its Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (“Wall Advisory Opinion”), finding that the construction of the barrier in what the Court defined as the “Occupied Palestinian Territory” (“OPT” or the “Territories”) was contrary to international law. More recently, the Court has also been seized of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), instituted in December 2023, and of a subsequent General Assembly request (Resolution A/RES/79/232 of December 19, 2024) for an advisory opinion on the Legal Consequences of Israel’s Policies and Practices regarding the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), on which hearings were held in 2025. Against that broader background, the Opinion of July 2024 determined that Israel’s continued presence in the West Bank, East Jerusalem, and the Gaza Strip is unlawful and should be brought to an end “as rapidly as possible.” The Court further held that Israel must cease all new settlement activity, evacuate settlers, and make reparation for damage caused in those territories, while also finding that Israel engages in discriminatory practices against Palestinians within the Territories. The “State of Palestine” submitted a statement to the Court in its capacity as an Observer State at the United Nations, alongside numerous countries – including the United States, Russia, China, France, the United Kingdom, and Qatar. The State of Israel, on the other hand, decided not to participate in the proceedings, aside from a brief written statement submitted on July 24, 2023 challenging the appropriateness of the use of the Court’s advisory function. In that context, the International Association of Jewish Lawyers and Jurists (“IJL”) considered it especially important to submit its own written statement. As a non-state actor, the IJL had no right of participation in the proceedings, and it is unknown whether the judges reviewed its submission. Nevertheless, placing the IJL’s independent legal analysis on record was central to its mission, to ensure that the Court had the benefit of additional legal and factual perspectives not presented by the other participants, consistent with the IJL's vision of acting as the “legal arm of the Jewish people.” The IJL’s written statement emphasized four principal themes. First, it urged the Court to consider, as a threshold matter, whether it was judicially proper to answer the questions referred by the General Assembly, since they were framed in terms that presupposed contested legal and factual conclusions. Second, it argued that it is incorrect to assume that the Palestinians alone hold sovereign rights in the West Bank and East Jerusalem. Drawing on a detailed historical and legal account, the IJL stressed that Israel has viable legal claims in these territories and that sovereignty remains unsettled, to be determined only through negotiations. Third, it emphasized that the governing framework for resolving the conflict lies in Security Council Resolutions 242 (1967) and 338 (1973), reinforced by the Oslo Accords. These instruments remain binding: they require withdrawal from territory in the context of a peace agreement that ensures secure and recognized boundaries, and they commit both sides to resolve permanent-status issues only through negotiations. Finally, the IJL set out its view of the law of occupation: occupation is a matter of fact under the Hague Regulations; it is not rendered unlawful simply by the passage of time or by the fact that it affects self-determination; and the occupying power may use lawful force to maintain public order and security. Against the backdrop of ongoing attacks – including those of October 7, 2023 – the IJL argued that Israel’s continued presence is legally justified as a measure of self-defense, which may be invoked against non-state actors, subject to necessity and proportionality. Preface* Roy Schöndorf and Daniel Reisner * Special thanks to Ava Drai and Deyar Abu Rahal for their excellent and dedicated work on this important project. O
5 Fall 2025 The Advisory Opinion was issued by a majority of the judges. Some members of the Court went further in separate declarations or opinions. Notably, the thenPresident of the Court, Judge Nawaf Salam of Lebanon, issued a declaration portraying Israel’s policies as “tantamount to apartheid.” By contrast, several other judges adopted a more cautious or balanced approach. Judges Tomka (Slovakia), Abraham (France), and Aurescu (Romania) issued a Joint Opinion expressing concern that the majority’s conclusions would not advance the goal of a negotiated two-state solution. Vice-President Sebutinde of Uganda dissented more fundamentally, stressing that the Court should have refrained from responding altogether, as the questions presented were politically loaded and bypassed the requirement of goodfaith negotiations to resolve competing claims. Judicial Propriety and Questions Before the ICJ In its submission, the IJL raised fundamental concerns regarding the judicial propriety of answering the questions referred by the General Assembly in Resolution 77/247. It argued that the questions are not neutral but rest on assumptions that are legally and politically contested. The language of Resolution 77/247 assumes that Israel’s presence in the West Bank, Gaza, and East Jerusalem lacks legal basis, infringes upon Palestinian rights, and constitutes annexation of what is described as inherently “Palestinian territory,” notwithstanding the legal controversy on these issues. Similarly, terms such as “ongoing violations” and “annexation” embedded in the questions themselves effectively prejudge core legal and factual issues that should be impartially assessed by the Court. In light of this, the IJL urged the Court to consider whether it could accept the questions in their current form or whether they should be reformulated in a more neutral and judicially appropriate manner. As former Judge Kooijmans of the Netherlands emphasized in his separate opinion in the Wall Advisory Opinion, when questions are framed in politicized terms, the Court has a duty to revisit their formulation in order to safeguard its judicial integrity and impartiality. From the IJL’s perspective, legal determinations must be grounded in credible, verifiable evidence – not political rhetoric or assumptions. When political assertions are treated as legal facts, the judicial process risks degenerating into an “Orwellian exercise,” detached from reality and undermining the Court's legitimacy as a factbased judicial body. Finally, the IJL contended that issuing an opinion on such profoundly disputed matters without the consent of Israel – a directly affected party – may breach a fundamental tenet of international law: that adjudication between states generally requires mutual consent. The IJL expressed concern that this advisory process could be used to bypass Israel’s sovereign rights, particularly its right to negotiate the status of the territories in question. The majority of the Court nonetheless concluded that there were no “compelling reasons” to decline the request and that the questions were sufficiently legal to be answered. Vice-President Sebutinde, in dissent, argued that the Court should have refrained. She stressed that the questions assumed disputed legal and factual conclusions, lacked a balanced historical presentation, and bypassed the requirement that the future of the territories be determined through good-faith negotiations. While she made no reference to the IJL’s submission, her reasoning illustrates the kinds of concerns that also animated the IJL’s analysis. The Legal Status of the West Bank and East Jerusalem In its submission, the IJL offered the Court a detailed historical and legal account of sovereignty over the West Bank and East Jerusalem. It emphasized that it is legally incorrect to assume that the Palestinians alone hold sovereign rights in these areas. The IJL traced the history from the Ottoman period through the British Mandate, the unimplemented 1947 Partition Plan, Jordan’s annexation from 1948 to 1967, and Israel’s control since 1967. It argued that this history demonstrates that the question of sovereignty remains unsettled, and that Israel has viable legal claims that must be addressed through negotiations rather than assumed away. For Jerusalem in particular, the IJL highlighted the added complexity of the proposed corpus separatum, Jordan’s unrecognized annexation, and Israel’s subsequent unification of the city along with access guarantees for all faiths. The Court did not adjudicate these claims. In paragraph 178 of the Opinion, it noted that while some participants had invoked Israel’s “deep historical ties and valid claims,” it was not called upon to pronounce on them, that insufficient evidence had been provided, and that sovereignty cannot be acquired by force. It therefore did not rule on the competing claims, confining its reasoning to the legal consequences of Israel’s presence. Vice-President Sebutinde, in dissent, criticized the majority for sidestepping this issue. She undertook her own examination of the historical and legal background and reiterated that sovereignty remains unresolved and must be determined through negotiations. Other judges
6 No. 75 JUSTICE did not address sovereignty directly. The IJL underscores that the Court’s decision not to pronounce on sovereignty avoided foreclosing an issue that should not be resolved by judicial determination. Thus, the IJL’s submission remains an important source in the continuing discussion of the unresolved claims to the West Bank and East Jerusalem, placing before the Court and the wider legal community a cohesive historical and legal analysis of why sovereignty in these territories cannot be assumed to lie exclusively with the Palestinians. The International and Bilateral Framework for Resolution of the Conflict: The Continued Legal Relevance of the Oslo Accords In its submission, the IJL emphasized that Security Council Resolutions 242 (1967) and 338 (1973), together with the Oslo Accords, form the binding legal framework for resolving the Israeli–Palestinian conflict. This framework, the IJL argued, is built on the principle of land-for-peace and requires resolution of the conflict through negotiations – not unilateral withdrawal or outside imposition. The IJL stressed that both parties undertook binding obligations under these instruments: Israel committed to territorial compromise, while the Palestinians undertook to resolve permanent-status issues through direct agreement. To disregard this framework, the IJL warned, would undermine the only consensual and internationally endorsed path to peace, bypass Israel’s sovereign right to negotiate, and destabilize the legal foundation of any settlement. The Court, however, treated these instruments more narrowly. It acknowledged their relevance but held that they did not alter Israel’s obligations under international law, concluding that Israel is required to withdraw from the “OPT” “as rapidly as possible.” In doing so, the Court gave precedence to unilateral withdrawal over negotiated settlement, a conclusion that prompted criticism from several judges. Vice-President Sebutinde faulted the majority for disregarding Resolutions 242 and 338 and minimizing the role of the Oslo Accords, stressing that these instruments remain the only legitimate framework for a final settlement. Judges Tomka, Abraham, and Aurescu, in their Joint Opinion, similarly criticized the Opinion’s “misappreciation” of the Oslo Accords, warning that the Court’s conclusions risked undermining the negotiated process endorsed by the Security Council and agreed to by the parties. Judge Iwasawa underscored Israel’s “legitimate security concerns” and concluded that Israel was not required to withdraw “immediately and unconditionally,” referencing the land-for-peace formula of Resolution 242. Likewise, Judge Nolte warned that findings which disregarded the Oslo Accords and the Security Council framework risked exceeding the Court’s proper role. These separate and dissenting opinions highlight the same concern at the heart of the IJL’s submission: that the existing legal framework requires resolution through negotiation, and that imposing unilateral withdrawal disregards the agreed basis for peace. The Occupation as Unlawful In its submission, the IJL argued that Israel’s presence in the West Bank does not constitute an unlawful occupation under international law and cannot be declared “unlawful” on the basis of duration or political context alone. The IJL developed six points in support of this position: 1. Occupation is not illegal per se. As the IJL explained, “a situation of belligerent occupation cannot be illegal per se,” and once occupation exists in fact, the only legal question that could arise is whether the occupant complies with the law of occupation. 2. Prolonged duration does not create illegality. International law contains no time limit for occupation. Prolonged occupation does not render the occupation itself unlawful – there is no consistent state practice supporting such a claim. 3. Occupation does not nullify self-determination. The IJL stressed that there is “insufficient legal basis” to assert that an occupation becomes illegal simply because it impedes the exercise of self-determination. The right endures under occupation, though its realization may be delayed. 4. Illegality arises only from breaches of jus cogens. Even if one finds that an occupation could be deemed unlawful, it could only be the case if said occupation breaches peremptory norms, such as apartheid South Africa’s presence in Namibia. Israel’s occupation, the IJL argued, arose from a defensive war and is not maintained in violation of such norms. 5. No general category of “illegal occupation.” International law does not recognize a blanket category of unlawful occupation. The potential legality of an occupation must be assessed concretely in terms of compliance with the law of occupation, not by recharacterizing the occupation itself as unlawful. 6. Security and self-defense justify continued presence. The IJL underscored Israel’s right to self-defense under Article 51 of the UN Charter. Given ongoing threats, a continued presence may be legally justified as a
7 Fall 2025 temporary security measure, particularly in light of the events of October 7, 2023. The Court, however, reached a different conclusion. It found that Israel’s occupation has been rendered unlawful by its policies and practices, which the Court considered to demonstrate an intent to establish permanent control and amount to annexation. It linked this to violations of the Palestinian right to self-determination, Article 49(6) of the Fourth Geneva Convention, and international human rights treaties. On this basis, the Court concluded that Israel must withdraw from the “OPT” “as rapidly as possible.” Separate and dissenting opinions revealed deep division. Judges Tomka, Abraham, and Aurescu sharply criticized the majority for failing to provide a coherent legal basis for declaring the occupation unlawful. They argued that while specific policies may breach international law, this does not mean the occupation itself is unlawful, and they faulted the Court for disregarding Israel’s legitimate security concerns. Vice-President Sebutinde similarly rejected the finding of illegality, emphasizing that the Court should not have bypassed the framework of negotiation under Resolutions 242 and 338. Additional Issues Covered by the Court The Court also addressed issues that were not the subject of the IJL’s submission. These included findings that certain Israeli measures in the Territories constitute prohibited discrimination under international human rights law – for example, restrictions on residence and movement under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) – and that Israel breached Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), namely the obligation to prevent, prohibit and eradicate racial segregation and apartheid. The Court itself did not label the situation “apartheid,” though some judges used that term in their separate declarations and opinions. The Court further examined the question of natural resources, concluding that Israel’s exploitation of resources in the Territories is inconsistent with the Palestinian people’s right to permanent sovereignty over natural resources. On Gaza, the Court adopted a functional approach following Israel’s 2005 disengagement, holding that Israel remains bound by obligations under the law of occupation commensurate with the degree of its effective control (notably over borders, airspace, and maritime areas). The Court’s conclusion that Israel’s continued presence is unlawful was applied to the entire Territories, including Gaza. Several judges expressed reservations. Judge Iwasawa stressed that Israel is not required to withdraw “immediately and unconditionally,” particularly in view of the hostilities since October 7, 2023. In their Joint Opinion, Judges Tomka, Abraham, and Aurescu criticized the majority for lacking a sufficient legal basis to declare the occupation unlawful across the whole Territories, including Gaza. The Court also clarified that the Opinion did not address Israel’s conduct in the Gaza conflict postOctober 7, 2023. Conclusion The Advisory Opinion of July 19, 2024, marks a significant moment in the Court’s engagement with the Israeli–Palestinian conflict, but it is also a deeply contested one. The divisions within the Court – evident in the separate and dissenting opinions and declarations – highlight the complexity of the legal and political questions at stake. In choosing to publish its submission in these pages, the IJL seeks to ensure that its analysis forms part of the broader legal conversation on these issues. As an association of jurists, it had no formal role in the proceedings, and it remains unknown whether its submission was considered by the Court. Yet, the arguments it placed on record underscore central points that remain unresolved: the question of sovereignty in the West Bank and East Jerusalem, the continuing legal force of Security Council Resolutions 242 and 338 and the Oslo Accords, and the proper understanding of occupation under international law. This special issue of JUSTICE presents the IJL’s submission in full. By placing it on record here, the IJL affirms the importance of articulating positions grounded in international law and of ensuring that the legal voice of the Jewish people continues to be heard in international fora. n Dr. Roy Schöndorf heads the International Dispute Resolution practice at Herzog Fox & Neeman, representing governments and multinational clients in complex cross-border disputes. From 2013 to 2022, he served as Israel’s Deputy Attorney General (International Law) and represented Israel before international tribunals including the ICJ and ICC. Adv. Daniel Reisner heads the international law, international trade and national security practice at Herzog Fox & Neeman in Tel Aviv. He is one of Israel’s leading public international lawyers, with a rich previous career in government and the IDF. He serves as the IJL's Deputy-President.
8 No. 75 JUSTICE Introduction 1. On 30 December 2022, the General Assembly of the United Nations adopted Resolution 77/247. Its Article 18 included a request to the International Court of Justice to provide an advisory opinion on the following two questions: “(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures? (b) How do the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?” 2. Just over a year has elapsed since the General Assembly made this request. During this period, the Court fixed time limits for the submission of written statements and scheduled 19 February 2024 as the date for the commencement of public hearings. 3. Since 7 October 2023, following a barbaric, genocidal, armed attack initiated from the Gaza Strip by the Hamas and Palestinian Islamic Jihad terror organisations − in which over 1000 Israelis were massacred, raped, tortured, and mutilated, thousands of others injured and over 250 taken hostage - Israel and Palestinian armed groups in Gaza have been at war. These recent and tragic events provide important context to the current discussion, as they provide a clear factual backdrop to the proceedings, which should inform - in a concrete manner - the Court’s deliberations when assessing the reality on the ground. 4. It is for this purpose that the International Association of Jewish Lawyers and Jurists (IJL) is publishing this statement. The IJL, a UN-ECOSOC special consultative accredited NGO, was founded in 1969 to promote human rights and international cooperation based on the rule of law, including by combating all forms of racism, anti-Semitism, Holocaust denial, and the negation of the State of Israel. The IJL membership comprises judges, lawyers, and academic jurists, spanning over 25 countries across the globe, and is widely recognised as a leading international organisation in the fields of human rights and international law. On the basis of its special consultative status at the UN, for over 20 years the IJL has attended sessions of, and delivered statements to, UN and related committees monitoring human rights such as the Human Rights Council and the Office of the High Commissioner for Human Rights. The IJL has brought and participated in human rights related legal proceedings before international tribunals as well as national courts.1 Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem Statement of the International Association of Jewish Lawyers and Jurists 16 February 2024 1. The IJL thanks and acknowledges Anne Herzberg and the Institute for NGO Research for their assistance with the development of this submission.
9 Fall 2025 5. This statement is intended to assist the Court when considering the numerous legal and factual issues arising from Resolution 77/247. With respect to such statements from non-governmental organisations, the ICJ Practice Direction XII provides: “1. Where an international non-governmental organization submits a written statement and/or document in an advisory opinion case on its own initiative, such statement and/or document is not to be considered as part of the case file. 2. Such statements and/or documents shall be treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements in the case in the same manner as publications in the public domain. 3. Written statements and/or documents submitted by international non-governmental organizations will be placed in a designated location in the Peace Palace. All States as well as intergovernmental organizations presenting written or oral statements under Article 66 of the Statute will be informed as to the location where statements and/or documents submitted by international non-governmental organizations may be consulted.” 6. The IJL intends that this submission, which is being communicated without prejudice to the Court’s determination of whether it would be proper to issue an opinion on the merits, will assist the Court properly to consider whether it is appropriate for it to respond to the questions posed before it, as formulated by the General Assembly. We recall that this is the situation which, in the Wall Advisory Opinion, gave rise to Judge Buergenthal stating that he was “compelled to vote against the Court’s findings on the merits because the Court did not have before it the requisite factual bases for its sweeping findings; it should therefore have declined to hear the case.”2 7. Judge Buergenthal was further “guided by what the Court said in Western Sahara, where it emphasized that the critical question in determining whether or not to exercise its discretion in acting on an advisory opinion request is ‘whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character.’”3 Judge Buergenthal concluded that giving an opinion without having “before it or seeking to ascertain all relevant facts bearing directly on issues of Israel’s legitimate right of self-defence, military necessity and security needs, given the repeated deadly terrorist attacks in and upon Israel proper coming from the Occupied Palestinian Territory to which Israel has been and continues to be subjected, cannot be justified as a matter of law.”4 Judicial propriety and the questions before the Court 8. The General Assembly’s questions contained in Resolution 77/247 rest on certain assumptions, namely that: (1) Israel’s presence in the West Bank, the Gaza Strip and Jerusalem is without any legal justification; (2) Israel’s presence in these areas violates Palestinian rights; and (3) this territory is “Palestinian.” These assumptions are inherent in the framing of the General Assembly’s questions which presuppose Israel’s “ongoing violation” of the Palestinian people’s right to self-determination, and settlement and “annexation” of “Palestinian territory.” 2. Legal Consequences of the Building of a Wall in Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports (2004) (hereinafter “Wall Advisory Opinion”), Declaration of Judge Buergenthal, p. 240. 3. Wall Advisory Opinion, Declaration of Judge Buergenthal, p.240, para. 1 citing Western Sahara, Advisory Opinion, ICJ Reports 1975 (hereinafter “Western Sahara Advisory Opinion), pp. 28-29, para. 46. 4. Wall Advisory Opinion, Declaration of Judge Buergenthal, para. 3, p. 241.
10 No. 75 JUSTICE 9. While the language of Resolution 77/247 portrays these assumptions as true, we submit, as further detailed in this statement, that while they may accurately reflect certain actors’ political aspirations, they do not accurately represent legal facts. Consequently, it will be for the Court to carry out its obligation to unpack, test and verify these assumptions, both for the purpose of determining whether the Court should exercise its jurisdiction and deliver the requested opinion, and also substantively should it choose to do so.5 10. With respect to the legal component of the General Assembly’s assumptions, this statement will attempt to clarify certain legal principles applicable in this context, which the Court may consider are not properly represented in the existing formulation of the General Assembly’s questions. With respect to the factual elements underlying the General Assembly’s request, we observe that the preponderance of materials upon which the General Assembly bases Resolution 77/247 originate from various organisations whose methodology and decision-making processes have often been questioned when dealing with the Palestinian-Israeli conflict. It follows that it is crucial for the Court to fulfill its fact-finding mandate by testing independently the credibility and reliability of the information contained in these documents and not simply rely on materials referred to in UNGA Resolution 77/247. 11. A crucial point for the purposes of the current proceedings must be made: the fact that pronouncements made in UN resolutions might, under certain circumstances, be used to ascertain the content of customary law, cannot also apply to the ascertainment of facts. Indeed, determining factual circumstances is not a matter of legal opinion, but a matter of evidence. Repetition of the same pronouncement as a “fact” cannot transform reality in the absence of concrete and verifiable evidence; if it could, it would transform the judicial process into an Orwellian exercise disconnected from the facts on the ground, which would be contrary to the judicial function of the Court.6 12. The General Assembly’s formulation of the questions before the Court, if accepted as they are, will prevent the Court from conducting the in-depth factual and legal analysis that is required, and will naturally raise questions as to the propriety of the Court’s accepting the General Assembly’s request, should they not be reconsidered. It follows that the Court should consider whether to reformulate the General Assembly’s questions. As put by Judge Kooijmans in his separate opinion in the Wall Advisory Opinion: 5. See Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, ICJ reports 2012, p. 10, para. 62. 6. Just as a cautionary example, we note the recent decision of the UN Secretary General immediately to terminate the employment of an undisclosed number of UN employees in Gaza (employed by UNRWA) on the basis of intelligence reports proving their personal involvement in the massacre of October 7. See Allegations Against UNRWA Staff, 8 February 2024 available at https://www.unrwa.org/newsroom/official-statements/allegations-against-unrwa-staff#. According to various international media reports, the same intelligence reports which served as the basis for the Secretary General’s decision also indicated that approximately 10% of the overall employees of this UN body are actually members of, or otherwise affiliated with, internationally designated terrorist groups. See ‘UN agency probes staff suspected of role in Oct 7 attacks’, Reuters, Gabrielle Tétrault-Farber, 27 January 2024, available at https://www. reuters.com/world/middle-east/un-palestinian-refugee-agency-investigates-staff-suspected-role-israel-attacks-2024-01-26/; ‘Intelligence Reveals Details of U.N. Agency Staff’s Links to Oct 7 Attack’, Wall Street Journal, Carrie Keller-Lynn and David Luhnow, January 29, 2024, available at https://www.wsj.com/world/middle-east/at-least-12-u-n-agencyemployees-involved-in-oct-7-attacks-intelligence-reports-say-a7de8f36; ‘10% of UNRWA Staffers Tied to Terrorist Groups: Report’, Washington Free Beacon, Charles Hili, 29 January 2024, available at https://freebeacon.com/latestnews/10-of-unrwa-staffers-tied-to-terrorist-groups-report/; 'A U.N Agency Is Accused of Links to Hamas. The Clues Were There All Along’, Wall Street Journal, David Luhnow and Carrie Keller-Lynn, February 2, 2024, available at https://www.wsj.com/world/middle-east/hamas-israel-attack-united-nations-unrwa-0ec8d325.
11 Fall 2025 “In the present case the request is far from being ‘legally neutral’. In order not to be precluded, from the viewpoint of judicial propriety, from rendering the opinion, the Court therefore is duty bound to reconsider the content of the request in order to uphold its judicial dignity. The Court has done so but in my view it should have done so proprio motu and not by assuming what the Assembly ‘necessarily’ must have assumed, something it evidently did not.”7 13. The Court may also wish to exercise care not to shy away from recognising the interplay of politics and law in this case. The structural partiality of the organs and entities responsible for sponsoring Resolution 77/247 is relevant. As stated by Judge Kooijmans in the Wall Advisory Opinion: “The Court, however, does not function in a void. It is the principal judicial organ of the United Nations and has to carry out its function and responsibility within the wider political context. It cannot be expected to present a legal opinion on the request of a political organ without taking full account of the context in which the request was made.”8 14. The Court will wish to remain mindful that its statements do not amount to the determination of a “dispute or legal controversy,” enabling the General Assembly to “exercise its powers and functions for the peaceful settlement of that dispute or controversy” absent the consent of Israel.9 In Western Sahara, although there was a “legal controversy” between Morocco and Spain,10 the Court observed that the issue between them was “not one as to the legal status of the territory today, but one as to the rights of Morocco over it at the time of colonization.” The Court therefore concluded that “[t]he settlement of this issue will not affect the rights of Spain today as the administering Power.”11 The Court also found that “the request for an opinion does not call for adjudication upon existing territorial rights or sovereignty over territory.”12 15. In Chagos, Judge Donoghue found, on this basis, compelling reasons for the Court to exercise its discretion not to render an Advisory Opinion, as it had “the effect of circumventing the absence of United Kingdom consent to judicial settlement of the bilateral dispute between the United Kingdom and Mauritius regarding sovereignty over the Chagos Archipelago and thus undermines the integrity of the Court’s judicial function.”13 Although there was “no reference to ‘sovereignty’ in the request,” Mauritius’ own statements, as well as the observations of other States, made it “clear that the dispute over sovereignty” was at the “heart of the request.”14 Judge Donoghue concluded that “the Court’s pronouncements can only mean that it concludes that the United Kingdom has an obligation to relinquish sovereignty to Mauritius.” It followed that the Court had “decided the very issues that Mauritius has sought to adjudicate, as to which the United Kingdom has refused to give its consent.”15 16. Judge Tomka similarly opined that the “Court must not forget that what looms in the background is a bilateral dispute over which the Court lacks jurisdiction.”16 Judge Tomka accordingly expressed concern that the Court, 7. Wall Advisory Opinion, Separate Opinion of Judge Kooijmans, p. 227, para. 26. 8. Id., p.223, para 12. 9. See Western Sahara Advisory Opinion, pp. 26-27, para. 39. See also Wall Advisory Opinion, Separate Opinion of Judge Higgins, p. 210, para. 12. 10. Western Sahara Advisory Opinion, p. 25, para. 34. 11. Western Sahara Advisory Opinion, p. 27, para. 42. 12. Western Sahara Advisory Opinion, pp. 27-28, para. 43. 13. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, ICJ Report 2019 (hereinafter “Chagos Advisory Opinion”), Dissenting Opinion of Judge Donoghue, p. 261, para. 1. 14. Id., p. 263-264, paras. 11-14. 15. Id., p. 265, para. 19. 16. Chagos Advisory Opinion, Declaration of Judge Tomka, p. 150, para. 6.
12 No. 75 JUSTICE despite stating that it is not “dealing with a bilateral dispute” between Mauritius and the United Kingdom,” made “an unnecessary pronouncement on ‘an unlawful act of a continuing character’” on the part of the United Kingdom.17 Judge Tomka warned that advisory proceedings “are not an appropriate forum for making these kinds of determinations, especially when the Court is not asked to make them and they are not strictly necessary for providing advice to the requesting organ.”18 17. In this case, too, although there is no express reference to “sovereignty” in the General Assembly’s request, by virtue of multiple express references to “Palestinian territory” in Resolution 77/247, and in particular its request for an opinion on the legal consequences arising from Israel’s “annexation of the Palestinian territory occupied since 1967,” the General Assembly has made it clear in this case that a dispute over sovereignty lies at the heart of its request. The scope of this submission 18. This submission therefore addresses three topics: firstly, the nature and legal status of the parties’ respective sovereign legal entitlement to the West Bank and Jerusalem; secondly, the international and bilateral framework for resolution of the conflict; thirdly, the content and status of international law relating to the law of occupation in relation to the conflict. The Court may agree that answers to questions arising from these topics will, in turn, impact on its answers to the question of the propriety of answering the General Assembly’s questions, as well as the merits of the questions themselves, should the Court exercise its jurisdiction to deliver an Advisory Opinion in this case. The nature and legal status of the parties’ respective rights to the West Bank and Jerusalem 19. General Assembly Resolution 77/247 refers to the West Bank, the eastern part of Jerusalem, and the Gaza Strip as “Palestinian territory.” The resolution appears to assume that sovereign rights to this area rest exclusively with the Palestinian people. It disregards any potential claims the State of Israel and the Jewish people may have with respect to some of these areas. We enclose as Annex “A” a comprehensive, separate, submission from the IJL addressing these matters in detail.19 20. In summary of the detailed explanations in Annex “A”, it is incorrect to assume that Israel and the Jewish people have no valid legal claims, under international law, in the West Bank and Jerusalem. Without prejudice to, but without accepting the validity of any Palestinian claims,20 this is plainly a situation of competing claims to sovereign legal entitlement. 21. In law and in fact, for over a century, sovereign legal title over the West Bank (and indeed the Gaza Strip) has been, and continues to be, indeterminate, or in abeyance. This has been the legal position under international law since the end of the First World War, when Turkey (as the successor to the Ottoman Empire) ceded sovereignty of the areas outside of its current borders.21 No agreement, instrument, judgment, opinion, or event with legal effect has changed this status since, as reflected – and explicitly stated – in agreements between the interested parties, and particularly agreements between the Israeli and Palestinian authorities. Under these agreements, the question 17. Id., para. 8. 18. Id. 19. Annex “A” entitled ‘Israel’s Legal Claims to the West Bank’. 20. Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II), 28 September 1995 (hereinafter “Interim Agreement”). 21. See Annex “A” to this submission.
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