On October 7, 2023, events orchestrated by Hamas against Israel not only led to the unleashing of brute military force by Israel on Palestinian civilians in Gaza, resulting in the deaths of more than sixteen thousand Palestinians but also drew unprecedented attention to the region, which has been plagued by conflict since 1947. While global attention is often fleeting and may soon shift to other crises, Palestinians and Israelis have engaged in ongoing conflict since 1967, through kinetic and non-kinetic tools. This cycle is likely to persist unless the issue is resolved peacefully and permanently. In the last twenty years, Palestinians have increasingly focused on legal measures to secure recognition for their state and legitimacy for their struggle. They launched a multifaceted legal strategy, including ratifying the Rome Statute and lodging a complaint at the International Court of Justice (ICJ) against the United States. However, this paper will specifically explore the circumstances leading to the 2022 United Nations General Assembly’s (UNGA) request for an advisory opinion on the Palestinian question and examine expectations for these proceedings.
It’s not the first time the UNGA has requested an advisory opinion on the Palestinian question. In 2002, amid the height of the second intifada (uprising), Israel, in furtherance of its annexation policies and departure from the Green/Armistice Line, initiated the construction of a “security fence” in and around East Jerusalem. John Dugard, the Special Rapporteur of the Commission on Human Rights, documented in his report[1] how the wall encroaches on Palestinian territory and resources, terming it a “case of de facto annexation”. This report paved the way for the UNGA to seek an advisory opinion from the ICJ regarding the legality of the wall’s construction in the occupied territories. This request was made through a resolution[2] passed on December 8, 2003.
The ICJ, in its 2004 advisory opinion, classified the construction of the wall and settlements in the occupied territories as a violation of both international humanitarian law (IHL) and international human rights law (IHRL). Although Israel assured that the wall’s construction wouldn’t amount to annexation due to its temporary nature, the ICJ maintained that the wall and its associated regime created a “fait accompli” on the ground, which could potentially become permanent.[3] The Court cautioned that in such a scenario, it would be considered de facto annexation.[4] The ICJ urged Israel to halt the construction of the wall in and around East Jerusalem, dismantle completed sections, and provide reparations for property destruction and return seized property.
Almost two decades later and despite several UNGA resolutions[5] calling on Israel to comply with the advisory opinion of the ICJ, the illegal settlements in the Israeli-occupied territory continue to expand. In 2005, under the “disengagement plan”, Israel unilaterally withdrew from Gaza but retained control over its land and sea borders, as well as its airspace. Since 2007, following Hamas’s victory in the 2006 general elections and their takeover of Gaza after hostilities with Fatah, the region has been effectively under siege by Israel, restricting movement in and out of Gaza. Similarly, over the years, numerous UN resolutions, reports, commissions, special rapporteurs, and mandate holders have verified and documented Israel’s blatant violations of IHL and IHRL in the occupied Palestinian territories.
In 2020, the COVID-19 pandemic, protracted occupation, and the global economic crisis collectively exacerbated economic challenges in Palestine.[6] Israel maintains the blockade of Gaza and continues to violate the rights of various groups, including Palestinian children, human rights defenders, civil society actors, journalists, and even detainees.[7] Israel continues its practice of collective punishments, torture, and other forms of cruel or degrading treatment.[8] Palestinians continue to suffer both socially and economically due to Israel’s protracted occupation and its apartheid policies in the occupied Palestinian territories.
The situation in the occupied territories was analyzed by Michael Lynk, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, in his August 2022 report. He concluded that Israel’s policies in Palestinian territory, which endow one racial-national-ethnic group with substantial rights and privileges while intentionally subjecting another group to live behind walls and checkpoints and under a permanent military rule without any rights or freedoms, amount to apartheid.[9] He recommended that Israel should be held accountable for its apartheid policies, and the international community should support any applications to the International Criminal Court (ICC) and/or the ICJ regarding the legal consequences of the practice of apartheid in the occupied Palestinian territory.[10]
A stronger push came from the report of the three-member Human Rights Council Commission of Inquiry, established to investigate violations of IHL and IHRL in the occupied Palestinian territory.[11] The Commission, in its report dated September 14, 2022, concluded that the blockade of Gaza constitutes collective punishment. It recommended promptly requesting an advisory opinion from the ICJ on the legal consequences of Israel’s continued refusal to end its occupation—amounting to de facto annexation—the policies employed to achieve occupation, Israel’s refusal to respect the right of the Palestinian people to self-determination, and the obligations of third States and the UN to ensure respect for international law.[12] The reports from the Inquiry Commission and Michael Lynk, along with the deteriorating human rights and security situation in the region, catalyzed the movement to seek a new advisory opinion from the ICJ on the Palestinian situation.
On November 10, 2022, the draft text requesting an advisory opinion from the ICJ on the Palestinian question[13] was approved by the Fourth Committee (the Special Political and Decolonization Committee).[14] On December 30, 2022, the plenary session of the UNGA adopted the resolution[15] with 87 votes in favor, 53 abstentions, and 26 votes against. The US, the UK, and Israel voted against the resolution, while France abstained. China, Russia, and the entire Muslim world voted in favor of the resolution. The UNGA requested the ICJ, pursuant to Article 65 of the ICJ Statute, to render an advisory opinion on the two questions;
(i) 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?
(ii) 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?
The ICJ is requested to examine these issues in light of the UN Charter, IHL and IHRL, relevant resolutions of the UNSC, UNGA, and the Human Rights Council, as well as the ICJ advisory opinion of 2004. To eliminate any ambiguity, the ICJ has the power to broaden, interpret, and, in exceptional cases, reformulate the questions.[16]
The legal questions cover a broad spectrum of discriminatory laws and measures by Israel in the occupied territories. The first question centers on two key legal issues: the repercussions of Israel’s prolonged occupation and the impact of discriminatory measures (apartheid policy) on Palestinians, particularly regarding their right to self-determination (and statehood). In its earlier advisory opinion, the ICJ examined issues related to demographic changes. It determined that Israel is violating the Fourth Geneva Convention and UNSC resolutions, and is also impeding the Palestinians’ right to self-determination in the occupied territories.[17] The ICJ is likely to assess developments with regard to these issues in the two decades since issuing its advisory opinion.
The scope of the second question is broad and will focus on two major aspects of occupation. This will be the first occasion where an international judicial forum will scrutinize Israel’s policies and their impact on the status of the occupation itself. The second aspect of the question centers on the obligations of other states and the UN in relation to Israel’s occupation status. In its 2004 Advisory Opinion, the ICJ already asserted that states are obligated not to recognize the illegal situation resulting from the construction of the wall and not to provide aid or assistance in maintaining the situation created by such construction.[18] The ICJ has suggested that the UN should take necessary actions to stop the violation of international law caused by the construction of the wall. It will be interesting to observe whether the ICJ will thoroughly examine and determine the obligations of both states and the UN concerning the recognition of Israel’s sovereignty in occupied territories. This includes actions such as shifting embassies to the occupied territories, funding that supports Israel in maintaining its policies in occupied territories, and the responsibility to hold perpetrators of international crimes accountable.
In accordance with Article 66(1) and (2) of the ICJ Statute, a total of 57 written statements by states and international organizations were submitted to the ICJ registry.[19] Additionally, 15 written comments on the statements were submitted by states and organizations.[20] While the written submissions are not currently available for public view and will be shared once the oral proceedings commence on February 19, 2024, there are a few important issues that countries are likely to raise. For example, Israel and its allies, like the UK, will question the jurisdiction and competence of the ICJ to give an advisory opinion on the Palestinian question, as it is a contentious bilateral issue between Israel and Palestine. However, a majority of states will support the court’s advisory jurisdiction on the Palestinian question.
Drawing on comments made during the voting and the ICJ advisory proceedings in 2004, it is likely that most states will argue that Israeli settlements in Palestinian territory are permanent, constituting a violation of international law and hindering lasting peace.[21] Once it is conclusively determined that Israel’s de facto occupation is breaching the principle of temporariness and violating international law, it would necessitate Israel to unconditionally end the illegal occupation. Although not binding, it is challenging to undermine the impact of the ICJ’s legal opinion, which can ultimately change the nature of conversations related to occupation and lead to a political solution.
Countries like the Maldives and Pakistan, along with the Organization of Islamic Cooperation, are likely to vehemently defend the right to self-determination for the Palestinians. These nations have a long history of supporting the cause and striving to uphold the principle of Palestinian self-determination. The issue of self-determination is closely connected to the question of statehood, serving as a crucial, though not sole, factor in international law for achieving statehood.[22] Israel and its allies question Palestine’s capacity to undertake certain initiatives, such as signing the Rome Statute and approaching the ICJ, given their non-recognition of Palestinian statehood.
The ICJ, in its earlier advisory opinion, recognized that the territories situated between the Green Line and the former eastern boundary of Palestine under the Mandate are occupied by Israel.[23] The Court also concluded that the right of self-determination is impeded by the construction of the wall in the occupied territories.[24] While the ICJ did not conclusively determine the statehood of Palestine, it acknowledged and treated Israel and Palestine equally regarding their obligations under international law.[25] It is likely that states will bring up the issue of Palestinian statehood before the Court. Since the last advisory opinion, Palestine has achieved recognition as a non-member observer state by the UNGA, obtained membership status in the ICC, and garnered recognition from 35 additional states. These developments are likely to influence submissions before the Court.
Similarly, states are likely to focus on the issues of demographic engineering and illegal settlements in the Palestinian territories. These practices serve as essential tools of occupation, progressive annexation, and undermine the right of self-determination for Palestinians. Israel’s settler program in the occupied Palestinian and Arab territories is well documented by the UN[26] and other organizations. In violation of Article 49 of the Fourth Geneva Convention, Israel is not only expelling the Palestinian civilian population but also settling Jews in the occupied territories, thereby permanently altering the demography of these areas. For countries like Pakistan, this is a significant issue, as India is attempting to emulate Israel’s settler-colonial program in IIOJ&K and wants to draw attention to the matter.
While the UNGA refrained from directly seeking the legal opinion of the Court on Israel’s apartheid regime, as suggested by Michael Lynk in his report, some states will address Israel’s apartheid policies in occupied territories as part of the broader discussion on the country’s discriminatory legislation and measures. States may delve in Israel’s domestic laws and policies, and the court might legally scrutinize its discriminatory practices for the first time. Given its history of enduring apartheid policies, South Africa is likely to advocate, in its written statement, for the classification of Israel as an apartheid state. Other countries, including Namibia, Malaysia, Bangladesh, Venezuela, members of the Arab League,[27] and Pakistan, may also put forth arguments supporting the designation of Israel as an apartheid regime. The ICJ’s advisory opinion in the Namibia case (1970) played a crucial role in delegitimizing South Africa’s apartheid policies, ultimately leading to sanctions and a political solution. It would be interesting to see if the Court can play a similar role in this case and to what extent.
In light of UNSC resolutions, IHL, the ICJ’s earlier advisory opinion of 2004, and the “historic status quo”, several states, especially Muslim states, are likely to raise issues related to the protection and unimpeded access to religious and cultural sites in Palestine, with a particular focus on the Al-Aqsa mosque. Israel frequently employs brute force to dissuade worshippers from accessing Masjid Al-Aqsa, considered the third holiest site in Islam. Jerusalem holds religious significance for Christians, Jews, and Muslims. In its 2004 advisory opinion, the ICJ concluded that Israel must ensure “freedom of access to the Holy Places that came under its control following the 1967 War”. Hence, it is likely that the issue may be discussed again in the Court.
The ICJ’s advisory opinion, though non-binding, acts as a crucial legal tool, clarifying and interpreting international law while providing an avenue for amicable resolution. It can play a pivotal role in legitimizing or delegitimizing the political stances of the majority of UN members.[28]
For instance, during the Namibia Case, the ICJ’s advisory opinion, although later addressed through a political process, initially delegitimized South Africa’s unlawful occupation and annexation of Namibia’s territory.[29] The question is how the Advisory Opinion will influence Israel’s behavior, considering its consistent disregard for UNSC, UNGA, and Human Rights Council resolutions, as well as communications from special rapporteurs, mandate holders, and the earlier ICJ advisory opinion. Three factors indicate that Israel and its Western allies are likely to react negatively, attempting to block or dilute the impact.
First, the social, political, economic, and security situation has taken a turn for the worse since the far-right coalition government came into power after the November 2022 elections in Israel. The UNGA vote came a day after the new far-right coalition government took power, which has agreed on the continued expansion of illegal settlements and made the annexation of Palestinian territories permanent. In their power-sharing agreement, they affirmed that “the Jewish people have an exclusive and indisputable right on the entire land of Israel” and aimed to promote settlement “in all parts of the land of Israel (Palestine, Israel, and Occupied West Bank), in the Galilee, the Negev, the Golan Heights, and Judea and Samaria (the West Bank)”.[30] The military action by Hamas on October 7, 2023, and the ongoing retaliation by Israel are not only altering the dynamics of the Israel-Palestinian dispute but also further hardening Israel’s attitude towards a peaceful solution to the dispute, including the involvement of international institutions.
Secondly, Israel’s stance toward the ongoing ICC’s investigation in the Palestinian situation[31] reflects its likely response to ICJ proceedings. Israel contends that the ICC lacks jurisdiction to investigate crimes committed in Palestine, arguing that, as Israel is not a signatory to the Rome Statute, it falls outside the Court’s authority. Additionally, Israel questions Palestine’s membership in the ICC, considering it a non-state entity. Israel refuses to cooperate with the investigation and prevents the investigation team from entering Israel and Gaza. Furthermore, Israel continues to label activities of international bodies “anti-Semitic”, deeming the recent request for an advisory opinion as an “abuse” of the ICJ. Although Israel submitted its written statement to the ICJ, it is likely that it will not fully cooperate with the ICJ. This mirrors the situation in 2004 when Israel submitted a written statement solely to object to the jurisdiction and competence of the ICJ in addressing the issue.
Thirdly, countries like the UK and the US have not only voted against the UNGA resolution but are also actively trying to block the ICJ proceedings. They are exerting pressure on the Palestinians to withdraw from the case, with the condition that Israel will allow the Palestinian Authority into Gaza.[32] They would likely object to the Court’s jurisdiction through their written comments.[33] Even during the voting at the UNGA, the UK diplomat criticized the referral to the ICJ, characterizing it as a hurdle to bringing the parties back to dialogue. The diplomat deemed it inappropriate to refer a “bilateral dispute” to the ICJ for an advisory opinion without the consent of both parties.[34] The US representative stated that there are “no shortcuts to the two-state solution” and that it cannot be achieved through the ICJ’s advisory opinion, and termed the UNGA resolution counterproductive. The UK contends that the ICJ is not equipped to examine a broad range of complex factual issues concerning the entire history of the dispute.[35] The request for an advisory opinion is also criticized for assuming unlawful conduct on the part of Israel.[36] All these concerns are redundant and were discussed during the Wall Case proceedings. The ICJ has determined that its proceedings, in no way, undermine the roadmap to a permanent two-state solution,[37] and the request for the advisory opinion does not pertain to bilateral matters but rather to the powers and responsibilities of the UN.[38] Therefore, the prospect of the Court reevaluating its previous positions on these objections is minimal. States should embrace all endeavors to address Palestinian issue, particularly considering the UNSC’s failure to secure even a humanitarian ceasefire.
Since 1947, the UN has adopted several resolutions regarding the Palestinian question. Over the years, the UN has consistently addressed violations of human rights and fundamental freedoms in the territories occupied by Israel, yet without achieving significant success. Recent events in the Middle East have raised serious questions about the legitimacy of the international rules-based order and international law. The upcoming court proceedings offer a critical opportunity to salvage the credibility of the international rules-based system. The international community must assist the ICJ in the proceedings and ensure that both Israel and other actors involved in the conflict comply with international obligations. The international community should leverage the advisory opinion for a wider political consensus. Despite skepticism, a fragile hope exists for a peaceful resolution. Recognizing the advisory opinion as one tool lacking conclusive power, it is crucial for Palestinians and the international community to realistically adjust expectations and persist in using various diplomatic, political, and legal tools for lasting peace in the region.
References
[1] Report of the Special Rapporteur of the Commission on Human Rights, Mr. John Dugard, on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967 (6 March 2002) UN Doc E/CN.4/2002/32. Available at: https://undocs.org/E/CN.4/2002/32.
[2] A/RES/ES-10/14 (A/ES-10/L.16)
[3] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 184.
[4] Ibid.
[5] For example, Advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, including in and around East Jerusalem (ES-10/15 of 2 August 2004).
[6] A/77/90–E/2022/66.
[7] A/76/333.
[8] Ibid.
[9] A/HRC/49/87.
[10] Ibid.
[11] A/HRC/RES/S-30/1.
[12] A/77/328.
[13] A/C.4/77/L.12/Rev.1.
[14] GA/SPD/771.
[15] Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem (A/RES/77/247)
[16] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 154.
[17] Ibid., 192.
[18] Ibid, 200.
[19] ICJ, “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (Request for Advisory Opinion) – Filing of written statements”, Press Release, 7 August, 2023. Available at: https://www.icj-cij.org/index.php/node/202970
[20] Ibid.
[21] GA/SPD/771.
[22] Errol Mendes, “Statehood and Palestine for The Purposes of Article 12(3) Of The ICC Statute: A Contrary Perspective”, 30 March 2010. Available at: https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/281876/OTPErrolMendesNewSTATEHOODANDPALESTINEFORTHEPURPOS.pdf
[23] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 167.
[24] Ibid, 184.
[25] Ibid, 200.
[26] See: UNSC resolutions 446 (1979), 476 (1980), 465 (1980), and 2334 (2016).
[27] GA/SPD/770.
[28] Michla Pomerance, “Case Analysis: The ICJ and South West Africa (Namibia): A Retrospective Legal/Political Assessment”, Leiden Journal of International Law, Vol. 12 (02), June 1999, pp. 425 – 436.
[29] Julia Crawford, “Israel-Palestine Conflict: What Difference Could an ICJ Ruling Make”, JusticeInfo.Net, 6 February 2023.
[30] Ronit Levine-Schnur, Tamar Megiddo, Yael Berda, “A Theory of Annexation”, SSRN, 5 February 2023. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4330338
[31] On 3 March 2021, the International Criminal Court Prosecutor announced the opening of the investigation into the Situation in the State of Palestine, the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.
[32] Patrick Wintour, “Corrupt, Discredited: Could a Reformed Palestinian Security Rune Gaza?”, The Guardian, 27 November, 2023.
[33] Bethan McKernan, “UK ‘seeking to block ICJ ruling’ on Israeli occupation of Palestine”, The Guardian, 24 August 2023.
[34] “UN seeks ICJ opinion on Israel’s illegal occupation of Palestine”, Al Jazeera, 31 December 2022.
[35] Bethan McKernan, “UK ‘seeking to block ICJ ruling’ on Israeli occupation of Palestine”, The Guardian, 24 August 2023.
[36] Ibid.
[37] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 160.
[38] Ibid, 159.
