As Israel continues to wage its war on Gaza, the International Court of Justice (ICJ) began hearing arguments on the legality of Israel's 57-year occupation over the occupied West Bank, the Gaza Strip and annexed east Jerusalem, on Monday. The historic hearing will see 51 countries and three international organisations addressing the court in the coming days until February 26, in a bid to urge the United Nations' top court to declare that Israel's occupation of lands sought for a Palestinian state is illegal.

The ongoing war on Gaza has killed nearly 30,000 people, many of them being women, children and elderly. While this became the focal point on the opening day of arguments on Monday, the hearings will majorly focus on Israel’s 57-year occupation over the region and how it has morphed into an ‘apartheid system.’

When was this case brought to the top court?

The hearings follow a request by the UN General Assembly in 2022 for a non-binding advisory opinion into Israel's policies in the occupied territories and its legal consequences, “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”. While Arab countries, Russia and China voted in favour of the move, the United States, Israel, Germany, United Kingdom and 24 other countries voted against it. 

The last time ICJ heard arguments on this issue was during Israel’s occupation in 2004. The court had then ruled that Israel’s ‘barrier wall’ in the occupied West Bank and East Jerusalem was illegal – which Israel rejected, accusing the court of being politically motivated. 

What is the background to the case?

Israel captured the West Bank, east Jerusalem, and the Gaza Strip in the six-day 1967 Mideast war – Palestinians seek all three areas for an independent state. 

It has built 146 settlements across the West Bank, according to watchdog group Peace Now, many of which resemble fully developed suburbs and small towns. The settlements are home to more than 500,000 Jewish settlers, while around 3 million Palestinians live in the territory, facing systematic discrimination and difficulty in building new homes or expanding existing ones. The international community too overwhelmingly considers these settlements to be illegal.

While Israel withdrew all of its soldiers and settlers from Gaza in 2005, it continued to hold tight control over the territory's airspace, coastline and population registry. Israel and Egypt imposed a blockade on Gaza when the Palestinian militant Hamas group seized power there in 2007. According to Human Rights Watch and other humanitarian organisations, Israel’s actions in the region amount to apartheid and persecution – which are crimes against humanity (as per HRW).

The case is not directly related to the ongoing war on Gaza, which escalated in October 2023. Further, this case is different to the one brought by South Africa last month, wherein Israel was accused of committing acts of genocide in Gaza. The ICJ had then, in an interim ruling, ordered Israel to do all it can to prevent death, destruction and any acts of genocide. However, the war on Gaza shows no sign of ending, nearly a month after the hearing. 

Who all are participating? What were the major arguments on day one? 

A total of 51 countries including South Africa (that brought the genocide case to ICJ last month), Saudi Arabia, China, Canada, US, China, and Russia, will present their arguments. 

On Monday, legal teams representing the state of Palestine opened the hearings. Palestinian Foreign Affairs Minister Riyad al-Maliki told the court that “2.3 million Palestinians in Gaza, half of them children, are besieged and bombed, killed and maimed, starved and displaced.” He then cited the right to self-determination enshrined in the U.N. charter as he told judges that “for decades, the Palestinian people have been denied this right and have endured both colonialism and apartheid.” Appealing to the court to uphold this right of Palestinians, the minister said such a ruling could allow both sides to live in peace.

Meanwhile, International law expert Paul Reichler, representing the Palestinians, told the court that the policies of Israel's government “are aligned to an unprecedented extent with the goals of the Israeli settler movement to expand long term control over the occupied West Bank, including East Jerusalem, and in practice to further integrate those areas within the territory” of Israel. Palestinians argue that this occupation has relegated them to being 'second class' citizens in their own land.

What will be the consequences of the ruling?

After the presentation of final arguments, the ICJ will publish a written opinion – it is unclear when this would happen and if the document would be made public. 

However, ICJ’s ruling will only be ‘advisory’ in nature, meaning that the decision cannot be enforced upon by the council onto Israel. But it could be damaging to Israel’s reputation in the international community and could force countries like the US to draft a ceasefire plan. Delivering the final remarks on day one, a lawyer representing Palestine said that the top court cannot remain silent and that their (ICJ) words could 'change the world' for Palestinians.