As the largest bloc of countries that recognises Palestine, Africa could lead the effort at the UN General Assembly.

Barely 48 hours after Israel’s Parliament voted against a two-state solution, effectively denying Palestinian statehood, the International Court of Justice (ICJ) found that Israel’s occupation of Palestinian territory since 1967 was unlawful.

In this landmark advisory opinion on 19 July, the ICJ agreed with arguments made by, among others, Palestine, South Africa, Namibia and the African Union (AU), that Israel’s policies and practices in the Occupied Palestinian Territory amounted to colonisation, racial discrimination and apartheid.

This finding resonates with Africa, whose decolonial agenda was central to the formation of the AU’s predecessor, the Organisation of African Unity. Likewise, South Africa and Namibia’s experiences of apartheid inform the United Nations (UN) definition of apartheid and its criminalisation – including in the Rome Statute of the International Criminal Court (ICC). The advisory opinion confirms Africa’s understanding of apartheid and occupation as colonisation.

This framing partly informed the ICJ’s views on the legality of Israel’s occupation of Palestine and the resulting consequences. In international law, ‘occupation’ occurs when, during a war, a territory or parts of the territory of another country come under the effective authority of a hostile army. Once the territory is seized, the occupying power has specific obligations towards people in that territory – including protecting civilians’ rights.

For most of the past two years, countries referring the question of Israel’s occupation of Palestine to the ICJ have argued that the occupation is illegal. This includes the indefinite nature of the occupation and the non-recognition of Palestinians’ rights. They cited specific policies and practices as unlawful, including Israel’s settlement policy, applying the law differently to Palestinians, and exploiting Palestinian natural resources.

In responding to the legal questions before it, the ICJ went several steps further than its 2004 advisory opinion on the West Bank wall, emphasising the responsibility of other countries and the UN to delegitimise the occupation and act to end it.

Six key aspects of the ICJ advisory opinion

• Israel’s occupation of Palestinian territories since 1967 is unlawful.
• Israel must end its occupation of Palestinian territories.
• Israel should immediately cease all new settlement activities and evacuate all settlers.
• Israel owes reparations to Palestine and Palestinians for the damage caused.
• The international community, both UN member states and international organisations, must not recognise the Israeli occupation as legal or offer support to Israel’s illegal presence.
• The UN, specifically the General Assembly and Security Council, must act to end the Israeli occupation of Palestine.

Israel has ignored past ICJ orders and opinions, and rejects this new one. So it’s unsurprising that no sooner had the court delivered its opinion than Israeli settlers intensified attacks on Palestinians in the West Bank, and the Israeli army ramped up its military action in Gaza – reportedly firing at clearly marked UN vehicles. Israel has killed at least 38 000 Palestinians since Hamas attacked the country on 7 October 2023.

While the advisory opinion focused on questions related to Palestine, important messages resonate globally and in Africa.

First, the court's decision clarifies that ‘occupation’ is more about control over the territory of another state than presence. The ICJ found that while Israel physically left Gaza in 2005, its continued control over the area meant its occupation continued. As Africa contends with the issue of ensuring global recognition of Western Sahara’s statehood, this view on occupation could be instructive.

Interestingly, in July 2023, Israel officially recognised Morocco’s sovereignty over Western Sahara. That stance misaligns with the AU’s position, which regards Morocco as occupying Western Sahara.

Second, occupation must be temporary and limited to a relatively small part of the territory, otherwise it affects people’s right to self-determination and is thus illegal. A related settlement policy such as that used by Israel since 1967 – where tens of thousands of Israeli Jews are resettled in occupied Palestinian territory – amounts to annexation.

Third, the ICJ decision has implications for the ICC’s ongoing investigation and recent requests for arrest warrants for international crimes committed in Palestine. This includes the ICJ assertion that Israel forcibly transfers people into and out of Palestinian territory, a war crime in the Geneva Conventions and the Rome Statute. And through its discriminatory policies and practices, Israel is committing apartheid – a crime against humanity. This adds to allegations of genocide levelled against Israel by South Africa in a separate ICJ case.

Last but not least are the implications for other countries, including those giving Israel technical and other support, and planning to interfere with ongoing ICC investigations. When the issue is back on the UN General Assembly and Security Council agenda, such states will be hard-pressed to maintain their support for Israel while still asserting the rule of law.

Besides Israel, Hungary, and the United States, reactions to the ICJ advisory opinion have all supported the court’s decision, reaffirmed the rule of law, and called on Israel to abide by it. The ICJ ruling should therefore motivate Israel’s backers to push the country to end its ongoing military offensive.

This is especially so since the new advisory opinion goes further than past decisions in advising that the UN as a whole must redouble its efforts to end the conflict, not recognise the occupation as legal, and end it and its related policies and practices. Without directly advising countries to recognise Palestine’s statehood, the ICJ reaffirmed its right to self-determination, which could encourage countries that haven’t yet recognised Palestine’s statehood to do so.

In 2004, 101 countries recognised Palestine. Since then, 44 more have done so, bringing the total to 145 out of 193 countries, with nine this year. It’s clear that global sentiments are shifting in Palestine’s favour. One region that has been relatively consistent is Africa – with all but Cameroon and Eritrea recognising Palestine.

Meanwhile, South Africa’s ICJ case alleging Israel’s genocide in Gaza is ongoing. By 28 October, South Africa must deliver more written submissions detailing its full case against Israel. It will be at least another year before any substantive decision from the court, so hopes rest on the impact of the ICJ advisory opinion and criminal prosecutions at the ICC.

As the largest grouping of countries that recognises Palestine, Africa could lead efforts at the UN General Assembly.

Written by Ottilia Anna Maunganidze, Head of Special Projects, ISS