ICJ to consider legality of Israeli control over West Bank and East Jerusalem at UN’s request
Pro-Palestinian protesters outside the International Court of Justice at The Hague, the Netherlands, January 2024
Chen Maanit and Jonathan Lis report in Haaretz on 18 February 2024:
The International Court of Justice in The Hague will consider the legality of Israeli control over the West Bank and East Jerusalem at a hearing on Monday, after the United Nations General Assembly requested the court’s advisory opinion on the issue a little over a year ago.
The hearing is expected to last several days with the participation of more than 50 countries, including the United States, Britain, Iran, South Africa and Egypt.
A delegation of the Israeli Foreign Ministry will attend the hearing at The Hague, but will not actively participate in the proceedings. The delegation will be headed by the ministry’s deputy legal adviser, Tamar Kaplan Turgeman.
The case, which is sensitive from Israel’s standpoint, is coming a week before Israel is to provide the court a report in a separate case filed by South Africa on the steps that Israel is taking to prevent genocide in the Gaza Strip. South Africa’s application to the court alleges that Israel is engaging in genocide in Gaza, which Israel adamantly denies.
Unlike South Africa’s case, the opinion of the court on the Israeli occupation is not binding on Israel, but only advisory. Officials at the Israeli Justice Ministry have told Haaretz that Israel is concerned that this week’s court proceedings will harm its standing in the world. Diplomatic officials are worried that the hearing and the court’s subsequent legal conclusions could negatively influence other countries’ policies toward Israel, particular against the backdrop of international efforts to advance the establishment of a Palestinian state in the coming years.
Legal experts say that the member countries of the International Court of Justice tend to accord great weight to the court’s opinions, and therefore the opinion could affect Israel’s international relations. Yuval Sasson, a lawyer specializing in international law at Israel’s Meitar law firm, noted, “If, for example, in its opinion, the court rules that [West Bank] settlements constitute an international war crime, countries could stop selling arms to Israel, as a court in the Netherlands has already recently ordered. Israeli goods are liable to be labeled and personal sanctions against settlers, such as were imposed in the United States, could be stepped up.”
Monday’s hearing at the International Court of Justice, commonly known as the World Court, follows a request from the UN General Assembly in December 2022 for a detailed opinion on the legal implications of the continued Israeli occupation of the West Bank and East Jerusalem. Israel effectively annexed East Jerusalem in 1980 and does not consider it occupied territory.
IDF soldier operating in the West Bank, February 2024
The request for the court’s opinion was submitted to the General Assembly by the Palestinians and approved by a vote of 87 in favor, 23 against and 52 abstentions. The request asked for a ruling on whether the occupation could be considered temporary.
The countries voting in favor of the General Assembly resolution included the United Arab Emirates, Qatar, Saudi Arabia, Poland, Portugal, Malta, Columbia, Egypt, Jordan, and Argentina. Ukraine, which Israel tried to convince to vote no, did not vote. In addition to Israel, those voting against included the United States, the United Kingdom, Germany, Hungary, the Czech Republic, Austria, Costa Rica and Croatia.
Following the vote, Palestinian President Mahmoud Abbas said that “the time has come for Israel to be subject to the law and to be held responsible for the continuing crimes against our people.”
Even though the case before the International Court of Justice on the occupation is separate from South Africa’s genocide case against Israel, international law experts said they expect a measure of overlap in the factual and legal arguments that will be considered, in part over how Israel’s control over the Gaza Strip just prior to Hamas’ attack on Israel on October 7 should be considered.
Prof. Tamar Megiddo of the Hebrew University of Jerusalem said that UN officials and various experts believe that the Israeli occupation did not end with Israel’s 2005 disengagement from the Strip, claiming that it continued via the tight siege that Israel imposed on Gaza by air, land and sea as well as Israeli control of essential infrastructure such as electricity, water, fuel and humanitarian assistance.
On the issue of Israeli control of Gaza, Megiddo said “there are also implications regarding the question of whether Israel can claim that it is acting in self-defense in response to the events of October 7.”
Unlike the South African Gaza genocide complaint, in Monday’s case, the court can examine Israeli actions in the West Bank based on legal frameworks beyond the Genocide Convention, she said. So, for example, it could take a position on whether Israel is complying with its obligations under the laws of war, the laws governing occupation and human rights law. The court could also address whether Israel has acted to annex territory in violation of international law, beyond the Gaza issue, in the West Bank and East Jerusalem.
At the International Criminal Court in The Hague, the chief prosecutor, Karim Khan, is conducting an investigation into what is happening in Gaza and the West Bank. Unlike the International Court of Justice, which deals with disputes between countries, the criminal court deals with the criminal responsibility for war crimes by specific individuals, including decision-makers and senior military officers. Although Israel doesn’t officially recognize the court’s jurisdiction, last week the Hostages and Missing Families Forum filed its own complaint against the leaders of Hamas over its actions on October 7.
Megiddo said that in this case, it could also be expected that there would be overlap between the factual and legal arguments before the two courts. “It’s reasonable to assume that the prosecutor at the criminal court is considering whether there is a basis for suspicion that Israelis are committing violations of the crime of genocide, although it appears that among the list of crimes that the [criminal] court has the authority to consider, there are other crimes that are more appropriate to consider with regard to the Israel Defense Forces’ operations in the Gaza Strip.”
“The justices at both courts in The Hague are in a ‘common milieu,'” Sasson said, “and it’s reasonable to assume that things filter from one place to another. What happens at the International Court of Justice and in general in legal proceedings around the world can have a highly major impact on Israel and our international relations. The international legal arena influences the diplomatic arena,” he said, adding that what happens in The Hague can’t be trivialized and the damage that could be caused to Israel could be major.
Prior to the two current cases, the last time that the International Court of Justice considered the Israeli-Palestinian conflict was in 2004, when it issued an advisory legal opinion regarding Israel’s construction of the separation barrier in the West Bank. The court ruled that it was tantamount to de facto annexation of the areas along the route of the barrier and was illegal. Israel could not justify the barrier on the grounds of self-defense, the justices wrote. They ordered that construction stop and that the portions that were already built should be demolished.
The route of the barrier, they stated, prompts major concern that the barrier would create facts on the ground that would lead to de facto annexation of territory and affect the drawing of the border between Israel and a future Palestinian state.
The staff of the Israeli State Prosecutor’s Office rejected the opinion and informed Israel’s High Court of Justice, which also had petitions relating to the security barrier before it, that they viewed the decision by the international court as irrelevant because Israel’s position was not presented to it.
In 2005, the Israeli high court noted that the opinion of the court in The Hague was not binding on Israel because it was only an advisory opinion. The president of the Israeli high court at the time, Aharon Barak, headed a panel of justices that issued an opinion stating that it had difficulty with the international court’s opinion and found it “doubtful whether [the Hague decision] is in keeping with the needs of a democracy in a fight against terror.”
The Israeli justices added, however, that the international court’s advisory opinion constituted interpretation of international law and the Israeli high court was according full appropriate weight to international legal norms.
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