Australia / Israel Review

Since the terrible attacks on October 7, it has seemed as though the international community, led by an elite organisation, the United Nations, and its international court system, has time and time again allowed itself to be misled, and its values and principles misused, in a manner that is putting the entire international rules-based order at risk.

The “Advisory Opinion regarding the Legal Consequences of Israel’s Policies and Practices in the Occupied Palestinian Territory”, issued by the International Court of Justice on 19 July 2024, is yet another example. 

The proceedings were biased from the start. In December 2022, the UN General Assembly passed, by 87 votes to 79, a nine-page resolution condemning Israel in the harshest of terms, declaring almost every action it has ever taken as in violation of international law and of Palestinian rights, and requesting the International Court of Justice to issue a legal opinion on the legal consequences of such violations.

The resolution was drafted and sponsored by 32 states, two-thirds of which have no diplomatic relations with Israel. It was the 15th General Assembly resolution condemning Israel that year, compared to 13 resolutions adopted against all other countries combined.

After the resolution was passed, a plethora of states and international organisations submitted their “written observations” to the Court on the legal consequences of Israel’s violations of Palestinian rights. Then, in February 2024, the Court held oral hearings on the subject. Fifty states and international organisations, including Palestine, participated.

The vast majority of them condemned Israel in lengthy monologues prepared and delivered by rising stars in international law, lawyers seeking to etch their names into the Court’s archive in one of the most publicised and politicised court proceedings of our time.

Those of us interested enough to watch the livestream heard grandiose, Shakespearean declarations, like the following statement, completely devoid of factual basis and made only to evoke public emotion: “On Israel’s approach, it decides how, if at all, Palestinians may meet, trade, teach, worship, live, love.”

Just like in 2004, when the Court held advisory proceedings on the legal consequences of the construction of the wall (or security fence) between Israel and the West Bank, Israel chose not to participate in the spectacle. 

Some may argue that it should have done so, if only to use the opportunity to present its arguments.

But Israel would be forgiven for deciding that dealing with two simultaneous sets of international court proceedings (South Africa’s genocide case against Israel and the International Criminal Court’s arrest warrant applications against Netanyahu and Gallant) is plenty, particularly in circumstances where its focus is very much on retrieving its more than 100 hostages held in Gaza, while waging an impossible war against Hamas – particularly given that advisory opinions are simply opinions, and not legally binding. 

Court criticised for relying on UN reports

According to its own rules, the Court is prevented from drawing adverse inferences from a state’s decision not to participate in advisory proceedings – and it should satisfy itself that it has sufficient information available to it to reach a legally sound conclusion on the questions it has been asked. But all standards seem to differ when it comes to Israel.

Thus, following the February 2024 hearings, when the Court broke for deliberations, it was fairly obvious that it would be relying almost exclusively on United Nations resolutions and reports to form its legal opinion on the matter. It also did so in 2004.

Reliance on United Nations documents over primary information was always going to pose a risk in terms of getting the history and facts straight. And it shows in the opinion.

For example, relying on a United Nations Fact-Finding Commission’s findings on how Israeli legislation and policies have affected residents in east Jerusalem, rather than relying on the actual legislation and policies and determining for itself how these have affected residents, is how the Court was able to conclude, at paragraph 165, that “Israel’s measures in East Jerusalem create an inhospitable environment for Palestinians” – even though several polls conducted over the last couple of years show entirely different results. 

The results of one such poll, conducted by the Palestinian Centre for Policy and Survey Research in 2022, showed that between 2010 and 2022, the number of Palestinian residents of east Jerusalem who would prefer Palestinian sovereignty over east Jerusalem decreased from 52% to 38%, while the number of residents who would prefer Israeli sovereignty increased from 6% to 19%. The remaining 42% of respondents stated that they would prefer international or “other” sovereignty over the area.

The 2022 poll also showed, for example, that “Palestinians are more satisfied with the services provided to them than they were ten years ago.”

But while overreliance on United Nations documentation was expected, what came as a complete shock was the extent to which the Court manufactured an entirely new narrative of the Israeli-Palestinian conflict, oftentimes at complete odds with reality. First, in paragraphs 52 and 53, the Court describes the process of Israel becoming a sovereign state. Here is how it describes that process: 

“While the Jewish population accepted the Plan of Partition, the Arab population of Palestine and the Arab States rejected this plan, contending, inter alia, that it was unbalanced. On 14 May 1948, Israel proclaimed its independence… an armed conflict then broke out between Israel and a number of Arab States, and the Plan of Partition was not implemented.” 

An unbalanced Plan of Partition. Israel pushing ahead and proclaiming its independence, despite concerns of “unbalance”. And therefore, “armed conflict broke out,” resulting in the Plan of Partition not being implemented.

Stating that Israel proclaimed its independence while omitting that it was de facto recognised as a State by more than a dozen countries, including the United States and the Soviet Union, on the same day or just days after, using the neutral phrasing “armed conflict broke out” rather than specifying that Israel was attacked on the morning of 15 May 1948, a day after it became a State, by the armies of Syria, Lebanon, Iraq, Egypt and Saudi Arabia, all serve to remove, or distance, responsibility for the events leading up to the situation now complained of before the Court from the Palestinians and any neighboring Arab states, placing such responsibility exclusively on Israel.

Second, the Court declares, in paragraph 78, that the Occupied Palestinian Territory, which it describes as encompassing the West Bank, east Jerusalem, and the Gaza Strip, is “from a legal standpoint” a “single territorial unit”, the “unity, contiguity and integrity of which are to be preserved and respected.”

Again, distorting both history and international law, the Court ignores the very foundational document it refers to in paragraph 52, the General Assembly resolution providing for “the creation of a special international régime for the City of Jerusalem” separate from the Jewish State and the Arab State it purported to create in the region.

Third, in paragraphs 88-90, the Court comes to the remarkable conclusion that Israel’s disengagement plan from the Gaza Strip, an action in 2005 to promote peace, was not at all a disengagement. Troops on the ground are not required to evidence a continued presence, it says, but what is a determining factor is which party exercises effective control over the area. A reference is then made to Israel’s control over the air and maritime spaces surrounding Gaza and control of its land borders. 

That Israel has ever faced, or that it currently faces, extreme threats of terrorism from multiple fronts is not mentioned in the opinion even once. Hamas is mentioned once in the entire Advisory Opinion, when the Court explains, conveniently, that the current case does not include conduct by Israel in the Gaza Strip in response to the attack carried out against it by Hamas and other armed groups on 7 October 2023.”

It appears that by labeling the Hamas attacks on 7 October 2023 and subsequent events outside the scope of the opinion, the Court felt that it could ignore the very existence of Hamas. 

There is not even a reference to Egypt’s role in the Gaza blockade. Instead, the Court states that Israel retains “significant control over the Rafah crossing,” placing no responsibility or control in the hands of Egypt whatsoever. The Court paints a picture of Israel being the only authority in control of the Gaza Strip, for no legitimate reason.

The Court gets around these broad-brush conclusions by noting that it did not need to go to the trouble of making findings of fact concerning “specific incidents”. It was sufficient for it to “establish the main features of Israel’s policies and practices and on that basis assess their conformity with international law.” Why the Court would be exempt from looking at specific facts to make factual determinations, it did not clarify. 

Perhaps that is why Judge Nolte found it necessary to append to the Court’s opinion a separate opinion that the “broad request” from the General Assembly necessitated a “particularly broad and merely illustrative approach to the factual assessment” by the Court, a “’bird’s-eye-view’ of the situation.”

He concludes, quite rightly, “Any conclusive legal determination of Israel’s responsibility for specific conduct would require a full investigation into the facts constituting such conduct, including a careful consideration of whether Israel’s security concerns may be legally relevant with respect to any specific situation.” 

Needless to say, this crucial disclaimer was not included in either the Court’s majority opinion or the international media reports that followed.

That the Court’s President, formerly the Lebanese Ambassador to the United Nations, voted against Israel 210 times during his time at the United Nations and made the following statement in 2009 is worrying and was arguably reason enough for him to recuse himself from any cases involving Israel for lack of impartiality and independence, under Article 17(2) of the Court’s Statute:

“Israel, as an occupying Power, has constantly and systematically violated its basic duties under international humanitarian law. Such violations have included the annexation of land, the punitive demolition of houses, the transfer of populations, collective punishment, political assassinations and the use of torture. For too long, Israel has systematically challenged the will of this Assembly. For too long, it has shown flagrant disrespect for international law. For too long, its war criminals have benefited from impunity.”

There is precedence for these types of recusals. In thirty-five other cases, Judges of the Court have recused themselves voluntarily. Nevertheless, Judge Salam appears to view his situation differently.

The sheer number of shocking conclusions reached by the Court would require an article almost as long as the Advisory Opinion itself. But it is worth mentioning what might be the most shocking conclusion of all. At paragraph 178: 

“The Court notes the argument made by two participants in the present proceedings according to which Israel’s ‘deep historical ties and own valid claims to’ the territory it now occupies have been disregarded by the very formulation of the question. The Court observes, first, that it is not called upon to pronounce on historical claims concerning the Occupied Palestinian Territory; and, secondly, that no information has been provided to the Court to substantiate such claims.”

In this absurd pronouncement, the Court ignores the very essence of the Israeli-Palestinian conflict – the fact that both parties claim to have deep historical ties and their valid claims to the same territory – and dismisses Israel’s position in its entirety.

It claims to have seen no information to substantiate the suggestion that Israel has deep historical ties and its own valid claims to the territory under dispute. It is as if the very history of Israel as the Jewish homeland, the archaeological finds detailing Jewish presence in Judea, Samaria, and elsewhere in the region, all of it, was simply constructed out of thin air. 

The Advisory Opinion of 19 July 2024 is not binding. The many recommendations provided by the Court, ranging from realising the Palestinian people’s “right to an independent and sovereign state” to obliging United Nations Member States to “abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory” to obliging Israel to pay damages to the Palestinians, may never be implemented – at least not by Israel’s allies. But the Court’s rewriting of history, distortion of facts, and shocking misapplication of the law still have the potential to shape international relations in a truly detrimental way. We should all be alarmed.

Olivia Flasch is a Legal Consultant in Public International Law, with a particular focus on armed conflicts and international criminal law. She holds a Master of Law (MJur) from the University of Oxford. Ami H. Orkaby is a renowned international lawyer and former adviser in the Israeli Prime Minister’s Office. © Jerusalem Post (www.jpost.com), reprinted by permission, all rights reserved.