Victor Kattan writes in Haaretz on 15 November 2022:
Last week’s vote at the United Nations marked a watershed. For the first time, the UN’s principal judicial organ was asked to give an opinion on the legality of Israel’s 55-year occupation of Palestinian territory – namely East Jerusalem, the West Bank, and the Gaza Strip.
The United Nations’ Special Political and Decolonization Committee approved a nine-page draft resolution on Israeli practices and settlement activities affecting the rights of the Palestinian people to request a second advisory opinion – comprised of two questions – from the International Court of Justice.
The first question queries the legal consequences arising from Israel’s ongoing violation of the Palestinian people’s right to self-determination, given its prolonged occupation, settlement and annexation of Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition of the Holy City of Jerusalem.
The second question asks about the affect these policies have on the legal status of the occupation and the legal consequences that arise for all states and the UN from that status.
This is not the first time that the court in The Hague has been asked for a legal opinion on Israel’s policies towards the Palestinian people; the UN General Assembly asked for an opinion regarding the legal consequences of the construction of the West Bank separation barrier in 2003, which was answered by the court in the following year. But this time, the subject is the occupation itself, along with the violations of human rights law and international humanitarian law associated with it.
It is important to note that the question has not yet been referred to the court. There will be a second vote at a plenary session of the UN General Assembly in December, but there is little doubt the resolution will pass. In the first vote, 98 states voted in favor of the resolution – eight more than the 90 that voted in favor of the resolution requesting the first advisory opinion back in the 2003. The additional states include many European countries that had abstained in 2003, such as Ireland, Belgium, Luxembourg, Poland, Portugal and Slovenia.
Decisions requesting advisory opinions from the ICJ require a simple majority of UN members “present and voting,” which means that in order to stop it, Israel would have to persuade more than 40 states to vote against the request. This is a tall order for any foreign ministry, if not unattainable.
The decision to put the request for a second advisory opinion to the UN’s Special Political and Decolonization Committee last week, rather than present it directly in the plenary in December, was a clever tactical move. It coincided with the United States’ midterm elections, when U.S. President Joe Biden’s attention was focused elsewhere.
Unsurprisingly, the U.S. was one of a handful of states that voted against the resolution, along with Israel. But the overwhelming majority of states voted in favor of the resolution, including states with close economic and cultural ties to Israel, like Ukraine.
Even the signatories to the Abraham Accords – Bahrain, the UAE, Morocco, and Sudan – voted in favor. Australia’s vote against the resolution was intriguing, given that the new Labour government quietly reversed its recognition of West Jerusalem as Israel’s capital a month ago.
Kyiv’s vote reportedly upset Israel’s ambassador to Ukraine, who called it “disappointing.” It should come as no surprise, though: The question being posed to the ICJ is significant for Ukraine, whose territory has been occupied, partitioned, plundered and annexed by the Russian Federation. What is perhaps more surprising is that Moscow also voted in favor of the resolution.
The United Nations’ decision to support the Palestinian request for a second opinion is hardly surprising. Last month, a UN commission of inquiry found “reasonable grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law owing to its permanence and to actions undertaken by Israel to annex parts of the land de facto and de jure.” Notably, the commission recommended that the ICJ be requested to advise on the legal consequences of the continued refusal by Israel to end its occupation.
Palestinian President Mahmoud Abbas has been warning about returning to the Hague court for years, most recently at the opening of the UN General Assembly in September. If Abbas had any doubts about the wisdom of seeking another opinion from the ICJ, the re-election of Benjamin Netanyahu as prime minister of Israel, who is viewed by many Palestinians (and Israelis) as an obstacle to peace, would only have emboldened the Palestinian leader further.
Although the request originated as a Palestinian initiative, once voted upon by the UN General Assembly, the opinion requested of the ICJ will be directed toward the UN body. In other words, it is not an adversarial process. Palestine is not bringing a claim or “suing” Israel. It is not “lawfare.” All that is being proposed is that the UN General Assembly request advice from the court on two legal questions that appear in paragraph 18 of the resolution.
There are 15 judges on the ICJ representing the principal legal systems of the world. The current president of the court is American; the vice president is Russian. It is by no means clear that the judges will agree on an answer to the two questions that are being proposed. Some judges hold the nationalities of the states that voted against the resolution, and may not be favorably inclined to answer the questions. We will have to wait and see what happens.
Even if the Palestinians were to receive a favorable advisory opinion in The Hague, it would not necessarily mean that states would follow what the ICJ says. However, given events in Ukraine, the advice the ICJ gives to the UN General Assembly is likely to have broader significance beyond the Israel-Palestine conflict.
Western governments may also find it harder not to put pressure on Israel to end the occupation, given the unprecedented sanctions they have imposed against Moscow for its invasion, occupation and annexation of large parts of Ukraine. Because of this – and because Israel’s occupation itself is at the heart of the request for the opinion – states will probably take a far closer interest in what the court says than it has in the past.
Victor Kattan is a Senior Research Fellow at the School of Law at the University of Nottingham.
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