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
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