Australia/Israel Review


World Court must save itself from politicisation

Aug 4, 2023 | Greg Rose

View of the ICJ courtroom at The Hague (Image: UN Photo/ICJ-CIJ/Frank van Beek)
View of the ICJ courtroom at The Hague (Image: UN Photo/ICJ-CIJ/Frank van Beek)

The United Nations General Assembly (“UNGA”), on December 30, 2022, adopted resolution 77/247 titled “Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem”. In this resolution, the UNGA requested the International Court of Justice (“ICJ”) provide an Advisory Opinion on the following questions: 

(a) 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? 

(b) How do the policies and practices of Israel referred to in paragraph …(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 UNGA Request was adopted with 87 votes in favour (of the 193 Member States). This was despite 26 votes against it, 53 abstentions and 27 nations absent from the vote. 

It thus was not supported by a majority of UN Member States. In short, it was supported by those states (predominantly members of the Organisation for Islamic Cooperation) seeking to advance the Palestinian legal narrative, but not by the greater number of states concerned with creating a more balanced approach. 

This is the second time the UNGA has requested the ICJ advise it on the consequences of the “illegality” of Israeli actions. The first was in 2003, concerning the separation barrier built to protect Israel from terrorist attacks during the Second Palestinian Intifada. The ICJ complied in 2004, issuing a finding that Israel had no right of self-defence and delivering a fulsome condemnation of the separation barrier (Construction of a Wall (Advisory Opinion), 2004, ICJ Reports). That 2004 precedent provided encouragement for the current request for an Advisory Opinion. 

Since then, the Palestine Liberation Organisation (PLO) has been granted observer state status at the UN. President of the Palestinian Authority and Chairman of the PLO, Mahmoud Abbas, stated in 2011: 

“Palestine’s admission to the United Nations would pave the way for the internationalization of the conflict as a legal matter, not only a political one. It would also pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice.” 

He has made good on this lawfare strategy in multiple fora, of which the ICJ is merely one. 

While the UNGA Request to the ICJ purports to advance international law, in fact it manipulates it by undermining fundamental rules of international law. Rather than promoting UN Charter values, the rendering of an opinion by the ICJ on the questions posed will likely diminish the status of both the Court and of international law and damage the possibility of peaceful resolution of the Israel-Palestinian conflict.

 

13 reasons why the Court should not render an Advisory Opinion 

There are many reasons why the Court should not give an Advisory Opinion on this matter. Simply put: the ICJ has no jurisdiction and, even if it had, then it should still use its legal discretion not to render the advice requested of it. This piece does not address the specific substantive questions that have been put before the Court, which would require extensive additional analysis. 

First, the ICJ must be certain that it has jurisdiction to give advice in accordance with the UN Charter, the Court’s Statute and its own rules. It is increasingly unusual for the ICJ to find that it has no jurisdiction but, nevertheless, there are four reasons why the ICJ has no jurisdiction here:

  1. the subject matter is a dispute involving Israel, which has never consented to the Court’s jurisdiction over that dispute; 
  2. bona fide negotiation for peace is a precondition to ICJ jurisdiction in a dispute; 
  3. the legal matters referred to in the Request are currently the subject of UN Security Council deliberations; and
  4. the legal question is distinct from other circumstances where the ICJ gave Advisory Opinions.

Second, there are nine reasons why the ICJ should also decline to give an opinion, as a matter of its judicial discretion: 

  1. assertions of fact in the UNGA Request cannot be relied upon; 
  2. the ICJ lacks independent investigatory capabilities with which to establish findings of fact upon which to base findings of law;
  3. there are no legal safeguards to protect the interests of the non-participating party; 
  4. the request for an Advisory Opinion circumvents legally binding agreements; 
  5. the request for an Advisory Opinion instrumentalises the Court as a political tool; 
  6. the opinion sought is not a legal question, but a political one; 
  7. the UNGA and Security Council have already expressed legal opinions on these issues; 
  8. assertions of law in the UNGA’s Request cannot be relied upon; 
  9. an Advisory Opinion premised on the terms of the UNGA Request would undermine peace negotiations and thus run counter to the objectives of the UN Charter. 

There are too many reasons to deal with them all in the space available, so this analysis will consider two issues relating to jurisdiction and two concerning discretion. 

 

Two Reasons why the ICJ has no jurisdiction

The request contained in the UNGA Request asks the Court to address an issue that is in dispute with Israel. An Advisory Opinion on the legal consequences of the alleged infringements of international law would go to the very core of the Israeli-Palestinian dispute and require the Court to settle law in relation to the whole conflict.

In addition, the procedures for an Advisory Opinion are inappropriate in these disputed circumstances because they do not provide the safeguards that necessarily apply to adversarial proceedings, despite the obviously contentious nature of the dispute that UNGA is requesting the Court consider. Thus, there is no opportunity to appoint ad hoc judges of the nationalities of the parties, nor to appoint counsel, nor to cross-examine evidence. Furthermore, the injustice of lack of safeguards is exacerbated by the terms of the Request, which presume without contest a web of legal violations that are prejudgments of both the facts and of the law. 

Lack of jurisdiction: No Israeli consent to dispute settlement

There is no voluntary consent by Israel to submit the dispute to the Court for judicial settlement. Use of the Advisory Opinion procedure in such a case would circumvent and erode the principle enshrined in Article 36 of the Court’s statute, which is that contentious cases can only be brought before the Court with the consent of the parties concerned. 

As the Court has previously observed:

“In certain circumstances… the lack of consent of an interested State may render the giving of an Advisory Opinion incompatible with the Court’s judicial character. An instance of this would be when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent.” (Western Sahara, ICJ Reports 1975). 

It is important to stress that this Request concerning the Palestinian-Israeli conflict is very different from that concerning the separation barrier in 2003. In that case, the Court was asked to opine on the legal consequences of a specific, confined action, namely Israel’s erection of a security barrier. That case dealt only with a part of the greater whole, as stressed by the Court. In the 2023 UNGA Request, the Court is now being asked to give its views across the broad range of issues relating to political and armed conflict between Israelis and Palestinians. 

Moreover, the delivery of an Advisory Opinion would establish a dangerous precedent. The Court might just as easily be asked to opine on the self-determination via statehood of peoples such as the Basque, Kanak, Kashmiri, Kurdish, Papuan, Taiwanese, Tibetan, Xinjian or 100 other peoples. 

Lack of jurisdiction: The dispute is currently under UN Security Council deliberation

The legal matters referred to in the Request are not questions which the General Assembly can legitimately ask the Court to answer. The Security Council is already considering these matters, and it is for the Security Council, not the General Assembly, to seek the Court’s advice. The UN Charter in Article 12 protects the role of the Security Council and restricts the power of the General Assembly to make recommendations on the same matters under Security Council consideration. In Resolution 2334 of 2016, the Security Council reached conclusions on certain factual and legal matters. Is the Court now going to second-guess the Council? Will the Security Council be bound by the advice given to the General Assembly on questions which it has not approved? 

 

Two Reasons why the ICJ should use its discretion to decline

The ICJ is not obliged to render an opinion on every question posed to it. In its Kosovo Advisory Opinion (2010), the ICJ observed that its discretion whether to respond to a request for an Advisory Opinion exists “so as to protect the integrity of the Court’s judicial function and its nature as the principal judicial organ of the United Nations.”

Discretion to decline: Circumvention of legally binding agreements

The Peace Process established at the UN-endorsed Madrid conference in 1991 led to partial resolution of the conflict between Israel and Jordan concerning the West Bank, and to a series of agreements negotiated and entered into between Israel and the PLO. The PLO under Chairman Arafat negotiated and signed the “Oslo Accords” between 1993 and 1997 on behalf of all Palestinians, and thus committed to a political process for resolving the conflict. The parties agreed not to take action outside the framework of negotiations. The UNGA Request for an Advisory Opinion is a legal manoeuvre that circumvents the Oslo Accords. 

The Oslo Accords are binding and entail ongoing legal rights and obligations. The UNGA endorsed the Oslo Accords as the basis for a negotiated political process in Resolution ES-10114 of Dec. 8, 2003, and the Accords were deposited with the UN Secretariat. The ICJ endorsed the importance of the Oslo Accords in 2004.

The ongoing binding nature and relevance of the Oslo Accords were recently confirmed by the Palestinian Authority. At the invitation of Egypt, on March 19, 2023, Jordanian, Israeli, Palestinian and US political and security senior officials met in Sharm El Sheikh. Israel and the Palestinian Authority reaffirmed, their “unwavering commitment to all previous agreements between them.”

The Court should decline to circumvent the internationally endorsed binding legal framework established to resolve the Palestinian-Israeli conflict. 

Discretion to decline: Turning the Court into a political instrument

The UNGA Request makes factual and legal assertions that are misleading or false. If the ICJ were to incorporate these assertions, its Advisory Opinion would be based on false information. The false allegations include: violations of the Palestinian right to self-determination, Israeli annexation throughout the West Bank, and existence of a defined area of sovereign Palestinian national territory. 

For example, the Court is presumed to agree with the assertion of “ongoing violation by Israel” of “the right of the Palestinian people to self-determination.” There is no doubt that the Palestinian people have a right to self-determination, but it cannot be simply assumed that Israel is violating it:

The application of a right to self-determination requires the will of the peoples concerned to be established. This condition has not been satisfied, as a result of the failure of Palestinian leaders to hold elections for the last 16 years.

Contrary to unsubstantiated frequent assumptions, reliable opinion polls show that an overwhelming majority of Arabs in east Jerusalem prefer a continuation of Israeli rule. 

Self-determination is a relative right, that must be respected together with other rights, including the rights of the Jewish people to self-determination and security.

The Request also alleges “discriminatory legislation and measures” by Israel in a vague and prejudicial way, implying the differing laws that apply inside Israel compared to the West Bank amount to racial discrimination. Yet to apply Israeli domestic law to the West Bank would amount to de facto annexation. And under laws of armed conflict, jus ad bellum, the presence of Israel in the West Bank is legitimate, as affirmed in UN Security Council Resolutions 242 (1967), 338 (1973) and 2334 (2016). 

The Request also refers to “annexation” in the context of the West Bank – but the only territory that has been annexed is east Jerusalem.

 

Conclusion: Damaging to the global legal rules and international courts

Perhaps the gravest harm that would be caused by the International Court of Justice delivering of an Advisory Opinion in response to the UNGA Request would be caused by its encouraging and supporting the misuse of international law in defiance of its intended proper purposes. An Advisory Opinion adhering to the UNGA Request would undermine the principle of honouring legal agreements, erode the principle of consent to dispute resolution, compromise the judicial function, and obstruct peaceful settlement of disputes. The ICJ would be unable to secure reliable evidence and would thus undermine its own professional reputation. It would also render the conflict more intractable. In the long term, it would undermine respect for the integrity of international law and institutions.

To protect the UN Charter key value of peaceful settlement of disputes and to preserve the integrity and apolitical role of the Court, it would be a sensible exercise of judicial discretion not to give the requested Advisory Opinion. The ICJ can and should protect itself from being used as a political tool. 

Gregory Rose is Professor of Law at the University of Wollongong, and Director of Research at The Hague Initiative for International Cooperation.

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