Table of Contents
“Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.”
In its Advisory Opinion published on Friday, July 19, 2024, the International Court of Justice (ICJ) concluded that Israel’s ongoing presence in the “Occupied Palestinian Territory”, including East Jerusalem, violates the Palestinian right to self-determination and is illegal.
The court called for Israel to bring its presence in these territories to an end “as rapidly as possible”. All Israeli settlements in these territories must be “evacuated.”
Summary by Thinc (The Hague Initiative for International Cooperation)
Andrew Tucker
False Historical Narrative
The ICJ has unquestionably adopted the historical and legal narrative of the Palestinian side, that denies any Jewish connection with the land, and ignores Israel’s legal and historical rights and its legitimate security interests.
“The call for evacuation of settlements means that all Jews must be removed from the Old City of Jerusalem, Judea and Samaria – the historical heartland of the Jewish people. This is not only totally absurd and impractical, but also unjust as it completely ignores the fact that Jews have been living in Jerusalem, Judea and Samaria for millennia. Many Israelis living in these areas are living on properties owned by their families for centuries or purchased in good faith. Strangely, the Court is effectively imposing an apartheid regime – because it means that Jews may not live in a future Palestinian state.“
Security Threat Ignored
The Court also fails to consider the extremely complex and challenging security realities in the West Bank. An Israeli withdrawal from the territories conquered by Jordan and recaptured by Israel in 1967 has always been contingent on effective security guarantees, as well as termination of all belligerency and threats of violence. This was the thrust of UN Resolutions 242 (1967) and 338 (1973), as well as in the Oslo Accords of 1993. It is indisputable that Israel faces ongoing existential and security threats and that there are states and non-state organizations that not only seek to force Israel out of the OPT but also desire a Palestine free of Jews from the “river to the sea” and legitimize a jihad (holy war) for this purpose. Hamas, Palestinian Jihad and other extremist terror-groups are deeply embedded in Palestinian society not only in Gaza but also the West Bank.
“It is one-sided and attacks Israel’s right to exist within secure borders. The ICJ should have initially refused to issue an Advisory Opinion and instead should have pointed out that bilateral or multilateral negotiations would be needed to resolve the conflict.”
Biased Judge
ICJ President Nawaf Salam before being elected ICJ President in February 2024, in his former position as UN Ambassador and Permanent Representative of Lebanon to the UN from 2007 to 2017, voted against Israel in 210 cases. He does not see Hamas or Islamic Jihad as terrorist organizations.
ICJ does not have Israel’s Consent
This undermines Article 36 of the ICJ Statute, which stipulates that contentious cases can only be brought before the court with the consent of all involved parties. This is indeed a contentious case, disguised as an opinion.
“The Advisory Opinion is based on the Palestinian attempt to re-write history and instrumentalize international courts to unilaterally enforce their interests and reinterpret the legitimate founding of a Jewish state as illegitimate…Pointing this out is not only relevant to Israel’s security but also to protect the authority of international courts. It is time for Western states to jointly call out the Court for its one-sided and biased approach to law and history.”
One Sided Process
The Opinion was requested by the UN General Assembly in December 2022 in Resolution 77/247. The ICJ was asked to clarify the legality of “the occupation, settlement, and annexation of the Palestinian territory occupied by Israel since 1967.” Less than half (87) of the 193 member states voted for the resolution, including the Arab League countries, such as Egypt, Lebanon, Syria, Somalia, Yemen, and Iraq, many African countries, and Palestine, which is not a full UN member but has observer status and is represented by the Palestinian Liberation Organization (PLO). Additionally, individual Western countries like Ireland, Spain, Norway, and Switzerland supported the resolution. The USA, Germany, the UK, France, Canada, Israel, and another 20 member states opposed the resolution but were outvoted.
The legal opinion is not binding, neither on the parties to the conflict nor on third states. However, it has the potential to further inflame the political climate in the already tense situation due to the Gaza war.
The Court is allowing itself to be politicized.
Israel has valid sovereignty claims to the “OPT” (Thinc Briefing 15 July 2024)
“In law and in fact, for over a century, sovereign legal title over the West Bank (and indeed the Gaza Strip) has been, and continues to be, indeterminate, or in abeyance. This has been the legal position under international law since the end of the First World War, when Turkey (as the successor to the Ottoman Empire) ceded sovereignty of the areas outside of its current borders. No agreement, instrument, judgment, opinion, or event with legal effect has changed this status since, as reflected – and explicitly stated – in agreements between the interested parties, and particularly agreements between the Israeli and Palestinian authorities. Under these agreements, the question of the final disposition of these areas shall be determined only by negotiation. Until then, both sides have agreed to provisional arrangements, which continue to apply and govern the legal relationship between them today.”
Uti Possidetis Juris
“In accordance with the doctrine of uti possidetis juris, the State of Israel was entitled to inherit the borders of the Mandate of Palestine as they existed on 14 May 1948, including the eastern boundary along the Jordan river and Arava valley. These were also the borders of the Jewish national home recognised by the League of Nations Mandate. The position was not altered by the armistice agreements of 1949 which delineated “the lines beyond which the armed forces of the respective Parties shall not move”. These agreements explicitly stated that that these lines were without prejudice to any rights, claims or positions of the parties or the ultimate settlement of the Palestine question. New borders can be12 created by agreement, and it was envisaged by the Oslo Accords that borders would be one of the subjects of final status negotiations. The correct starting point is that Israel was entitled to inherit the borders of the Mandate of Palestine as of 14 May 1948 and that relinquishing part of the territory within them constitutes a concession by Israel in terms of territory, albeit that it may assist the resolution of other difficult issues.”
(Barrister and UKLFI Charitable Trust Legal Director Natasha Hausdorff)
The Mandate for Palestine and the Oslo Accords conform to international law and do not undermine the right to self-determination of the Palestinian people, particularly in the light of Article 38 of the ICJ.
Abuse of International Law
Israel did not endorse the misuse of the advisory procedure against it by participating in it.
- The Court Registrar is not equipped to investigate complex disputed factual issues and has no investigators. It does not have the ability to objectively and independently evaluate the distorted versions of the facts that it will be presented with.
- The UN General Assembly resolution formulated the premises of the requested ruling, based on factual allegations that are untrue. For example, it misleadingly asserts Israeli “annexation” of the West Bank, although the only territory Israel has annexed is East Jerusalem.
- The UNGA request also alleges grave breaches of Palestinian human rights but calls for the court to rely for factual information upon untested reports by the UN Works and Relief Agency for Palestinians and other UN bodies politicized similarly to the UNGA. (Read more on why UNRWA is not a trusted source).
- The UNGA’s request undermines the central legal framework for peace negotiations to resolve the Israeli-Palestinian conflict. This is a framework that was adopted by both the Palestinian and Israeli leaderships – the Oslo Accords. Moreover, although the UNGA itself endorsed those accords – yet it does not mention them in its request to the ICJ. An ICJ ruling that diminishes or sidelines the Oslo Accords would only deepen political divisions, entrench partisanship in the UN and render the conflict more violent and intractable.
- The 1993 Oslo Accords specify that key issues are subject to negotiation between the two parties, and until a final agreement is reached, Israel is to maintain a military government in the West Bank. The Oslo Accords also specify that Palestinian self-determination would in part be the product of “direct, free and general political elections” – yet Palestinian Authority President Mahmoud Abbas is in the 18th (now 19th) year of his four-year presidential term, and denounced peace negotiations with Israel a dozen years ago.
- Thirdly, judges are mandated to decide law, not politics. The UNGA request is a legal strategy designed to promote the interests of one side in armed conflict by manipulating the ICJ Statute, subverting the key principle in that Statute – which is national consent to ICJ dispute resolution.
In Summary
It undermines the principle of honouring legal agreements, compromises the Court’s judicial function, erodes truth-seeking and interpretation of law in accordance with its intended proper purposes, and obstructs peaceful settlement of disputes. In the long term, this significantly undermines respect for international law and the integrity of international legal institutions.
(Gregory Rose is Professor of Law at the University of Wollongong, and Director of Research at The Hague Initiative for International Cooperation)
Dissenting Opinion of Vice-President of the International Court of Justice, Judge Julia Sebutinde
Judge Sebutinde objected to the ICJ being weaponised for political purposes. She pointed out in the preface to her Dissenting Opinion:
The Advisory Opinion omits the historical backdrop crucial to understanding the multifaceted Israeli-Palestinian dispute and is tantamount to a one-sided “forensic audit” of Israel’s compliance with international law.
The Advisory Opinion does not reflect a balanced and impartial examination of the pertinent legal and factual questions.
It is imperative to grasp the historical nuances of the Israeli-Palestinian conflict, including the competing territorial claims of the parties in former British Mandatory Palestine, as well as the previous and ongoing efforts to resolve the conflict through the negotiation framework identified by the Security Council.
The Court lacks adequate, accurate, balanced and reliable information before it to enable it to judiciously arrive at a fair assessment and conclusions on the disputed questions of fact”.
See Judge Sebutine’s full opinion at the link on the homepage.
https://www.icj-cij.org/sites/default/files/case-related/186/186-20240719-adv-01-02-en.pdf
This article was originally published by the Israel Institute of New Zealand.
