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
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