Andrea Maria Pelliconi

On 30 December 2022 – one day after the establishment of the new Israeli government – the United Nations General Assembly (UNGA) adopted Resolution A/RES/77/247 in which, referring to Article 65 of the Statute of the International Court of Justice (ICJ), it requested the Court to give an advisory opinion (AO) clarifying the legal status and consequences of the Israeli occupation of Palestine’s territories. More specifically, the AO request asks the following questions:

“considering the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, and the advisory opinion of the Court of 9 July 2004:

(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?”

On 3 February 2023, the ICJ fixed the time-limits for Israel and potential intervening states and organisations to present written statements (25 July) and comments (25 October). The AO request follows the Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 of 21 September 2022, which called for a change in the ‘overall assessment’ of the nature of the occupation, and the Report of the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory (oPt) of 14 September 2022, which recommended the UNGA to ‘urgently’ request an ICJ AO on the consequences of Israel’s ‘continued refusal … to end its occupation  … amounting to de facto annexation, … [and] to respect the right of the Palestinian people to self-determination’ (para. 92(a)). The AO will be the second initiated by the UNGA on issues pertaining to the occupation, after the 2004 Wall AO where the Court declared unlawful the construction of the wall delimiting the boundary between Israel and the West Bank, which partially enters into the latter’s territory, and elaborated the concept of de facto annexation.

The Legal Issues

The main legal issues to be addressed include the (il)legality of the occupation/de facto annexation, the Palestinians’ right to self-determination, and the question of Palestine’s statehood. ICJ AOs are non-binding but highly authoritative, and the answers to these questions may even have further ramifications in other branches of law, and potentially evidence individual criminal responsibility, for example, for forced transfers and other crimes against humanity, forcible annexation as a form of aggression under Art. 8.2(a) of the Rome Statute, etc.

The position of Israel, which likely will not participate to the proceedings, is that the Jewish people have an exclusive and indisputable right to exercise sovereignty over the Land of Israel, including the West Bank, which Israel has controlled since 1967. At the other end of the spectrum, the request brings new hopes for those advocating for the end of occupation, settler colonialism and, at least in part, the conflict: the expected outcome of the AO is best summarised in a briefing published by Diakonia shortly after the adoption of the UNGA resolution’s first draft. Some scholars see this as an opportunity for Palestine’s decolonisation and liberation, and others foresee the AO to be crucial in providing much needed clarity going forward not just in the specific issue of Israel and Palestine, but also for any other situation of occupation and annexation. Other scholars are more cautious, and suggest that the AO should be seen as just one among other efforts to address the situation – and one that will not be resolutive on its own, as the ICJ is likely to reformulate and cherry-pick questions to avoid giving a straight answer to the most controversial aspects. Others, even more sceptical, highlight how similar precedents show how the AO will probably be practically ineffective. Finally, some even deem the question on the occupation/annexation’s unlawfulness to be conceptually ill-posed, and propose to tackle the situation from a completely different angle, namely that of the crime of apartheid.

‘Demographic Alterations’

This post will focus on one specific aspect of the request, namely the reference to ‘measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem.’ These measures can be defined as part of a strategy of ‘demographic engineering’, a term that indicates the authority-sponsored alteration of the demographic composition of a territory. Measures consist, for example, of forcible transfers, evictions and land redistribution, restrictions on freedom of movement, killings, and discriminatory demographic policies such as exclusion from pro-natalist incentives, targeting an undesired ethnonational or religious group; in its most large scale and violent forms, demographic engineering can amount to crimes against humanity and escalate to the crime of genocide. Demographic engineering practices have been widely deployed by authorities – especially, but not only, in authoritarian states – for any sort of reasons, from creating an ethnically-homogeneous nation, to repressing separatist efforts, to upholding occupation and facilitating annexation. By excluding certain groups from the polity, removing them from their lands, and demographically substituting them in their presence over the territory, demographic engineering directly restricts or impede whatsoever the enjoyment of those people’s right to self-determination.

Demographic engineering in the oPt is strictly intertwined with settler colonialism and is seemingly instrumental to the occupation and progressive annexation of Palestinian territories. As Ralph Wilde explains in his recent Legal Opinion, Israel uses military force to control the territory in order to exercise state-like authority without an explicit claim to annex, but paving the way for a claim to Israeli sovereignty. This is what the ICJ referred to as ‘de facto annexation’ in the Wall AO, i.e. a gradual or incremental process to establish ‘facts on the ground’ that are intended to be irreversible and permanent while avoiding any formal proclamation. Israel’s de facto annexation is advanced through the performance of sovereign administrative powers, as well as the gradual demographic engineering of the territory. By shrinking the population size or confining the Palestinians to certain areas, potentially turning them into a minority, and re-settling Israelis in their lands, the government seeks to tacitly consolidate the stable and permanent establishment of Israelis in the occupied territories, materially change the people (one of the criteria for statehood) on the ground, and ‘pave the way’ for the exercise of sovereignty justified by the presence of Israeli nationals – in a similar vein to how the Russian Federation invoked a right to self-defence and ‘humanitarian intervention’ in eastern Ukraine because of the presence of Russian nationals. Therefore, demographic engineering furthers tentative annexation by restricting or eliminating the Palestinians’ ability to enjoy self-determination and exercise territorial sovereignty.

The use of demographic engineering in the oPt (and even in the occupied Syrian Golan) has long been documented. In Resolution 446/1979, the UN Security Council called upon Israel to halt the ‘transfer [of] parts of its own civilian population into the occupied Arab territories’ and other ‘measures … materially affecting the demographic composition of the Arab territories occupied since 1967’ (including, at the time, not only the West Bank and East Jerusalem, but also the Gaza Strip and the Syrian Golan Heights), in compliance with obligations arising from the Fourth Geneva Convention (para. 3). The Wall OA found that the route of the wall was designed to alter the demographic composition of the oPt by reinforcing illegal Israeli settlements (para. 115) and displacing Palestinian populations from certain areas (paras. 122 and 133). The AO concluded that demographic engineering resulting from the construction of the wall contravenes the prohibition of forced transfer of civilian population in occupied territories ex Art. 49.6 of the Fourth Geneva Convention (para. 134), and ‘severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right’ (para. 122). In 2018, the then Special Rapporteur on the oPt Michael Lynk reported how Israeli authorities and troops implement demographic engineering strategies to manipulate the demographic situation on the ground and complete de facto and juridical annexation (para. 34).

It is therefore not surprising that question A of the new AO request makes explicit reference to demographic alteration. This is a great opportunity for the Court to clarify the legal consequences of authority-sponsored demographic manipulation under international law. The Court focused prominently on the demographic aspect in the Wall AO, despite the fact that the 2003 UNGA AO request only recalled Israel’s activities aimed ‘to change the status and demographic composition of Occupied East Jerusalem’ in the preamble, without specifically mentioning them in the question. One can therefore expect that in addition to all the other legal issues mentioned above, the ICJ will go back to this point and further elaborate on it.

It should be noted that formally speaking, the new AO request only asks the Court about ‘measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem’. This formulation indicates the intention to explicitly single out the activities of demographic engineering and purported annexation in East Jerusalem, which are of particular importance and which the Court is specifically expected to address. However, the Court should discuss the consequences of demographic engineering in the whole West Bank, and not just in East Jerusalem, which is just a part of it. The practices of demographic engineering in East Jerusalem are similar to the practices in the rest of the West Bank, albeit they are concentrated in a smaller territory. The purported annexation of East Jerusalem means that Israel is able to easily apply its laws and policies in the city, including demographic engineering ones, but the same can be said for the rest of the West Bank, where – as widely demonstrated – military law and judicial enforcement significantly facilitate land expropriations, evictions, and other demographic engineering policies. By reading the request systematically, it is clear that the intention is for the Court to consider demographic engineering in the oPt as a whole, as the text of the AO request other than question A refers more broadly to demographic engineering in ‘the Occupied Palestinian Territory, including East Jerusalem’ (preamble p. 4; point 6 at p. 7). Question A also starts by requesting an assessment of the ‘ongoing violation by Israel of the right of the Palestinian people to self-determination’, which includes demographic engineering activities in the whole oPt. Furthermore, any other previous documents and resolutions consistently referred to demographic alterations in ‘the Occupied Palestinian Territory, including East Jerusalem’, as did the Court itself in Wall. It is therefore reasonable to expect the Court to discuss the implications of demographic engineering in the oPt more generally.

The ICJ has thus a chance to provide clarity on the legal qualification of demographic engineering under international law, including that 1) it constitutes a wrongful act, and 2) situations arising from such illegal activities are nuIl and void, should not be recognised, and could attract sanctions. Such clarification would have a great (legal) impact not only on the situation of the oPt, but also in multiple other ongoing situations where demographic engineering is taking place – for example, in Kurdish territories and other areas along the Syrian-Turkish border by the governments of Damascus and Ankara, and by the Russian Federation in eastern Ukraine. The Court has the opportunity to establish clearly that sovereignty shifts, annexation, and other border modifications resulting from demographic engineering activities do not respect the right of people to self-determination and are unlawful under international law.

In conclusion, the ICJ AO has the potential to be a truly landmark step that may both crystalise the legal consequences of certain Israeli conduct, and have a far-reaching impact beyond the Israeli-Palestinian situation. At the same time, there are many obstacles (political, procedural, and practical) that risk to render the outcome less incisive than expected. Either way, the international community will certainly hold its breath in the wait.