‘As Rapidly as Possible’: What Exactly did the ICJ say Israel Must do?

[Shlomo Levin holds an M.A. in International Law and Human Rights from the U.N. University for Peace in Costa Rica and the author of The Human Rights Haggadah]

In its recent advisory opinion, the ICJ decided by votes of 11-4 that Israel’s continued presence in occupied Palestinian territory is unlawful and that Israel is obligated to bring it to an end ‘as rapidly as possible (para. 285:4).’ Obviously, if something is illegal it should stop right away. Is that what the ICJ meant? If so, why did the court’s majority use this rather ambiguous phrase? A close examination of the judges’ individual declarations gives us a better sense of what exactly they are saying Israel must do and where there are disagreements between them.

Judges Nolte and Cleveland (members of the majority) wrote a joint declaration which includes the following:

The Court concludes that Israel must end its presence “as rapidly as possible”. Notably, the Court did not adopt the formulation urged by some participants that Israel must end the occupation “immediately, totally and unconditionally”. The Court’s wording recognizes that there are significant practical issues that would make an “immediate” withdrawal and cessation of some aspects of Israel’s presence not possible.

para. 16

In other words, the majority rejected stronger language because an immediate and total Israeli withdrawal would be impossible. Although one can imagine many reasons, they do not explain exactly why they believe this to be true.

Judge Xue (also of the majority) gives a broader explanation. She writes:

…the ultimate realization of the right of the Palestinian people to self-determination lies in the final settlement of the conflict between the State of Palestine and the State of Israel. Before that goal is reached, in any event, Israel must immediately cease its internationally wrongful acts…

para. 10

Her point seems to be that Israel cannot make withdrawal from the occupied territories contingent on the success of the peace process. Even if many matters, such as security agreements and the right of return of Palestinian refugees cannot be resolved, Israel must not use that as a reason to delay its withdrawal.

Judges Nolte and Cleveland also explain in their joint opinion what they view as the proper place for peace negotiations in bringing an occupation to an end:

We also recognize that once a State has exercised its right of self-defense and, as a result, has occupied territory that is not its own, a reasonable period should be available for an occupying State to assess the situation on the ground and . . . to negotiate, in good faith, an arrangement laying down the conditions for a complete withdrawal in exchange for security guarantees; and, eventually, to organize an orderly withdrawal of its troops.

para. 6

In their view (as well as in the views of the other majority judges), regardless of the legal status of the occupation when it began in 1967, it has now become illegal because Israel is not fulfilling its obligation to negotiate in good faith a withdrawal. Instead, Israel is attempting to delay withdrawal indefinitely and effectively annex the territory via its policy of settlements. This means that however it began, the occupation has now turned into an illegal attempt to acquire land which must be stopped.

Court President Salam elaborates on the relationship between negotiations and withdrawal in his declaration. He writes:

This withdrawal cannot be conditional on the success of negotiations whose outcome will depend on Israel’s approval. In particular, Israel cannot invoke the need for a prior agreement on its security claims for such a condition may lead to perpetuating its unlawful occupation.

para. 57

So the majority position seems to be that Israel may not use the continued occupation as leverage in negotiations in an attempt to get its political and broad security goals met. The occupation must end whether there is progress in the general Arab-Israeli peace process or not.

But numerous practical issues, such as water and the sharing of natural resources, border crossings, and tax collection must be worked out to make an Israeli withdrawal possible. Many of these require Palestinian cooperation and therefore negotiation. This is why the court says, ‘as rapidly as possible’ rather than ‘immediately.’ Any withdrawal will have to be preceded by practical preparation and negotiation, but that should be limited to what is necessary for withdrawal implementation and the withdrawal may not be delayed pending the resolution of other disputes.

A Minority of Three

Particularly as this is not a contentious case but only an advisory opinion, meant to assist the General Assembly by laying out the legal framework for addressing the matter, it is worthwhile to examine minority opinions too. This is especially true since in spite of the strong majority on most operative clauses, the 15 judges wrote a total of 14 separate declarations, individual opinions, and dissents, indicating a wide variety of views. 

On the two conclusions that Israel’s continued presence in the occupied territories is unlawful and that Israel is obligated to bring an end to its presence there as rapidly as possible, four judges dissented. Three of them (Tomka, Abraham, and Aurescu) gave a joint explanation.

They provide three main reasons. First is the majority lumping Gaza together with the West Bank. They say that in light of Israel’s withdrawal from Gaza in 2005, the fact that Israel maintains no settlements there, and the current war between Israel and Hamas, Gaza should be dealt with separately and the majority’s reasoning should apply only to the West Bank.

Second, while they agree that Israel’s policies in the West Bank violate the rights of Palestinians and are contrary to International Law, they say that only means Israel must rectify these violations. It does not prove that Israel’s very presence in the occupied territories is itself illegal.

Third is the role of security guarantees. These judges do agree that continued occupation is incompatible with Palestinians’ right to self-determination, but with regard to Israel’s obligation to withdraw they write:

Israel’s full withdrawal from the occupied territories and the implementation of the right to self-determination by the Palestinian people is intrinsically linked to Israel’s (and Palestine’s) right to security. . . . we believe it is simply fair to also acknowledge that this State (Israel) faces serious security threats, and that the persistence of these threats could justify maintaining a certain degree of control on the occupied territory, until sufficient security guarantees, which are currently lacking, are provided. It is difficult to see how such guarantees could be provided outside the conclusion of a comprehensive settlement.

para. 37

In other words, there is no dispute that Israel may not maintain an indefinite presence in the occupied territories. However, in their view Israel’s withdraw can be delayed not only pending the resolution of practical questions necessary for implementation but also be made contingent on security guarantees that may even necessitate a final settlement to the conflict. 

Judge Sebutinde’s Dissent

The most strident dissent comes from court Vice-President Sebutinde. In her view, the entire matter is a bilateral political dispute between Israel and Palestine, not a legal one. She states in her conclusion:

I am of the view that the Court should have declined to give its Advisory Opinion in the present case. Instead, Israel and Palestine, the two parties to the conflict, should be encouraged to return to the negotiating table and to jointly find a lasting solution. The United Nations and international community at large, should support these two parties to do so.

para. 92

Judge Sebutinde does agree that Palestinians have a right to self-determination. However, she notes that Israel has legal and historical claims to some portions of the West Bank, which must also be taken into account in negotiations over Palestine’s final borders. 

But regarding Israeli withdrawal, she says something similar to her three dissenting colleagues above:

those resolutions (security council resolutions 242 and 338) recognized that the end of Israel’s occupation entailed the fulfilment of two interdependent conditions, namely, “Israel’s withdrawal from territories it had seized in the conflict” on the one hand, and “Palestine’s recognition of Israel’s sovereignty, territorial integrity and right to live in peace within secure and recognized boundaries free from threats or acts of force”, on the other. In other words, both Israel and Palestine need to move in tandem to secure the necessary conditions ⎯ for Israel to withdraw from the Arab-occupied territories and for Palestine to provide the assurances and conditions that allow Israel to feel secure in so doing.

para. 83

Security Guarantees Would Make This Moot

So in spite of their many differences, all the judges agree on the crucial point that Palestinians have a right to self-determination that requires Israel to end its occupation. The majority says that this should take the form of a complete Israeli withdrawal from all the territory occupied in 1967, with the only delay being to negotiate the practical necessities. The minority says that Israel may further delay in order to obtain security guarantees, with one judge (Sebutinde) going a bit further to say that more details of how Palestinian self-determination will be fulfilled should be subject to negotiation also.

One important takeaway, then, is that all the judges recognize that at least some negotiations is necessary for an Israeli withdrawal possible. The dispute is only with regard to what the scope of those negotiations should be. If during those negotiations the Palestinians would commit to credible security guarantees, this dispute between ICJ judges would become moot. At that point Israel would be out of excuses, and its obligation to withdraw from the occupied territories would become clear to all.