Pearls and Irritations

Between Monday 19 February and Monday 26 February the ICJ heard oral submissions on the request for an advisory opinion in respect of the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. Make no mistake. This case is about as important as it gets. It raises the question of what does humanity mean, and where is the human race heading.

The request came from the General Assembly of the United Nations. It is dated 30 December 2022, that is the date when Resolution 77/247 was adopted requesting an advisory opinion, the relevant terms of which were:

The General Assembly …request(s) …an advisory opinion on the following questions, considering the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, and the advisory opinion of the Court of 9 July 2004:

(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 …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 matter proceeded to the filing of written submissions by member States that wished to make submissions, as well as the observer State of Palestine, by 25 July 2023. Those States which did provide written submissions, and there were 57 of them, were allowed to comment upon the submissions of others, in writing, by 25 October 2023. On 9 February 2024 the Court fixed the dates for the oral submissions. It is important to note that this timetable was unaffected by events in Gaza post 7 October 2023. Israel submitted a written statement but chose not to participate in the oral hearings.

There are certain matters that readers should understand. Advisory Opinions, albeit carrying great moral and legal authority, are non-binding. That is not to say that they might not be acted upon by the General Assembly or the Security Council in such a way as to make them binding upon member states of the UN, including those States directly affected. Further, rulings on legal questions are likely to be binding as precedent on later judicial proceedings. An example of this is apparent from the pre-amble to the request itself, when a reference is made to “the advisory opinion of the Court of 9 July 2004”. That opinion is otherwise known as the Wall Advisory Opinion, which addressed the legality of the wall built by Israel roughly along the Green Line, the ’67 borders, but to some degree infringing upon what was regarded as the Palestinian side of the Green Line.

The Wall Advisory Opinion was in fact relied upon by numerous of the States to inform the Court as to the answers to the questions raised in this proceeding. The other significant precedent was the Namibia Advisory Opinion, of 1971, which matter addressed the hitherto attempt by the then South African regime to annex Namibia.

In undertaking this would be report on the proceedings I have to acknowledge that I do so with limitations – and I ask the reader to take those limitations into account. I have not attempted to read the written submissions or commentaries thereon. What I can say is that I have read the oral submissions, and it is apparent from those submissions that the counsel representing the States submitting generally acknowledge that they are speaking to and largely reproducing the written material. There is another limitation. Eight of the 51 oral submissions are in French as opposed to English. My French is probably inadequate. I have received some assistance with the oral submission by France, particularly given its status as a permanent member of the Security council. As to the other seven I feel confident in including Algeria, Lebanon and Tunisia amongst the solid supporters of a pro-Palestinian outcome. The others, namely Belgium, Luxembourg and Switzerland are likely such supporters as well. Only Slovenia have I put into the too hard basket. Any uncertainty which results would only have a minimal impact on what is clearly the substantial majority.

So apart from the eight French speakers identified above, who are the other forty-three addressing the Court? Six of the eight continents are well represented. Only Australasia and Antarctica are unrepresented. I shall say more on Australia’s absence in a later commentary. The other 43 are, in order of speaking: State of Palestine, South Africa, Saudi Arabia, Netherlands, Bangladesh, Belize, Bolivia, Brazil, Chile, Colombia, Cuba, Egypt, United Arab Emirates, USA, Russian Federation, The Gambia, Guyana, Hungary, China, Iran, Iraq, Ireland, Japan, Jordan, Kuwait, Libya, Malaysia, Mauritius, Namibia, Norway, Oman, Pakistan, Indonesia, Qatar, United Kingdom, Sudan, Syria, Turkey, Zambia, Spain, Fiji, and the Maldives. Three international organisations were allowed to participate: the League of Arab States, the Organisation of Islamic Cooperation, and the African Union. They were all pro-Palestine, but I have not incorporated their submissions in the analysis of support/opposition of the issues.

The State of Palestine, which went first, did in some degree identify the issues. I summarise them as follows:

(a) Does the ICJ have jurisdiction to respond to the request for the advisory opinion;

(b) Should the ICJ exercise a discretion to decline the request;

(c) Is the occupation by Israel of Palestinian land, i.e., the West Bank, East Jerusalem and Gaza, an illegal occupation;

(d) Have any annexations by Israel of any such lands been illegal:

(e) Are Israeli settlements in the West Bank and East Jerusalem illegal;

(f) Has Israel defied the Security Council, the General Assembly and the Court in its conduct since 1967;

(g) Has Israel established, as a matter of law, an apartheid regime in the lands under its control;

(h) Does Palestine have a right of self-determination which has been denied it;

(i) What are the legal consequences of the answers to these questions for Israel, for the UN, and for third party States; and

(j) What should happen.

What position was taken on each of these issues by the submitting States?

(a) Jurisdiction

Numerous States did not address this issue, or the issue of discretion not to exercise jurisdiction. They went on to address all other issues. In those circumstances I have included them as States accepting jurisdiction exists and that there are no grounds to exercise the discretion not to hear the matter. On that basis no State asserted that the Court had no jurisdiction.

(b) Discretion not to hear

The USA, Hungary, and the United Kingdom urged the Court not to proceed. Zambia suggested that it was open to the Court not to proceed on the basis that to do so might inhibit negotiations, but did not urge that outcome. All other States rejected the suggestion that the Court should exercise its discretion not to proceed.

The position of the USA was that borders should be the subject of negotiation, and that by proceeding the Court might inhibit the role of the Security Council in the management of such negotiations. Further, such negotiations needed to address Israel’s security. The US spoke of a resolution based on the “land for peace” principle.

The position of the US seems opportunistic given its veto on the Security Council. Whilst Hungary was prepared to accept this ‘compromising negotiations’ argument, all the other States rejected it, many expressly dismissing the suggestion and rather arguing that the enlightenment given by the court on legal issues would assist any negotiation process still left. Neither the US nor Hungary addressed the fact that Israel’s declared position is that there is nothing to negotiate and that it would not negotiate.

The United Kingdom’s position was unique. It introduced a matter of discretion called the non-circumvention principle – apparently based on a suggestion that a State must consent to having a dispute involving it determined by the Court – and Israel did not consent! This submission essentially challenges the conduct of the General Assembly in formulating the questions and putting them to the Court. Needless to say, it got no traction with the other 50 participants. Sudan, which followed the UK, drew attention to the fact that Israel had not consented to the Wall Advisory Opinion either. That didn’t stop it proceeding.

The UK also asserted that the questions necessitated an inappropriate factual enquiry, which was too vast a factual scenario to address. The UK, in making this submission, ignored the fact that almost all facts were uncontentious, most taken from published assertions by the Israeli government.

The UK drew attention to Security Council Resolutions 242 and 338 following the 1967 and 1973 wars and suggested that these resolutions presume that negotiations will follow. Any finding by the Court might inhibit such negotiations. Again, such a submission refuses to acknowledge Israel’s expressed position that there will never be a Palestinian State. The UK further articulates what needs to be addressed by negotiation, viz., borders, security arrangements, solution of the refugee problem, and the status of Jerusalem. But there is no reason why these matters could not be alluded to by the Court in its Opinion, and subsequently addressed by the General Assembly, or even the Security Council.

Given the overwhelming support for the Court to proceed to hear and determine the request to it, it seems unlikely that the Court will be too troubled by these submissions concerning jurisdiction.

(c) An illegal occupation(?) (d) Illegal annexations (?) (e) Illegal settlements

These three issues can be addressed together. Of the 51 States making submissions, 42 asserted illegality in respect of all issues; 8 did not specifically address the issues for one reason or another, such as that the Court should not exercise any jurisdiction. Only one State, the USA, refused to accept that the occupation was illegal, and did not address the issues of annexations or settlements. On the discreet issue of settlements, a number of States drew attention to the fact that Security Council Resolution 2334 (2016) already addresses the issue of illegality, finding such.

(f) Israel’s defiance

Some twenty States positively asserted Israel’s persistent denial of resolutions of the Security Council and General Assembly, and Court decisions, such as the Wall decision. The other States simply did not specifically advert to the issue. No State asserted compliance by Israel with any such directive. Cuba criticised what it described as the “abusive and irresponsible exercise of the veto privilege in the Security Council” by the USA.

(g) An apartheid State (?)

The roll call was much the same for apartheid as defiance – some twenty-two States positively asserting apartheid with the balance not addressing the issue. Again, no State asserted that Israel was not guilty of apartheid.

(h) Self determination (?)

Not surprisingly, some 40 States asserted that Palestinians have a right of self-determination which has been denied to them. Even the USA accepted such. The other 10 did not address the issue, at least in their oral submissions. No State asserted the contrary. One particular component of the right to self-determination recognised by a number of States was the right of a people to determine its own political status and direction, and to pursue its own economic, social and cultural development of choice.

(i) Legal consequence given the positive findings on issues (c) – (h)

Again, not all States specifically addressed this issue, some leaving the matter for negotiations. A significant majority, however, asserted that international law demanded the end of the occupation, non-recognition of annexations, and dismantling of settlements. Moreover, a number of States asserted that it was crucial for the Court to require Israel to withdraw from Palestinian territory immediately, unconditionally, and totally. This included dismantling of settlements. Many advanced that international law called for reparations. The same majority called upon the UN to take supervisory measures, and third-party States to act to ensure compliance by Israel by measures including diplomatic actions, economic sanctions, political pressure and legal measures. The UN was specifically called upon by Malaysia to ensure UNWRA’s continued effective functioning.

(k) What should happen

Some 30 States were specific. They asserted that international law called for a two-State solution on the ’67 borders with East Jerusalem as the capital of the State of Palestine. A number made the specific assertion that Israel could not profit from its own wrongdoing. The USA proposed a two State solution and pointed to Security Council resolutions 242 and 338 as the basis for such. Those resolutions, dating respectively from 1967 and 1973, indicate acceptance by the US of the ’67 borders although the US could not resist proposing the possibility of negotiations. China proposed a two-State solution arrived at through negotiation, whilst Iran, perhaps surprisingly, suggested a National Referendum in Palestine to address the issue. Other States either did not address the issue, or called for negotiations. Fiji proposed implementing the Oslo Accords.

I trust that the above gives the general picture. It is of interest to note some submissions by individual States.

Saudi Arabia made the point that Israel had not sought to defend its policies.

Chile drew attention to the fact that it has a large Palestinian community, which it claimed to be the largest outside the Middle East.

The positions of the USA and the UK have been largely addressed on the issue of a Court discretion. What of the other three permanent members of the Security Council? Russia drew attention to the fact that it has “stable relations” with Israel. But it claimed the need to address the “root cause”. On this need it criticised the approach of the US as a member of the Quartet. Russia proposed two States on the ’67 borders but then proceeded to suggest the need for direct negotiations; perhaps this might be explained as referring to peripheral issues. China was middle of the road, but made specific reference to the right of the Palestinians to resist the occupation, and urged that such resistance should not be considered as terrorist acts. France was middle of the road.

The Gambia, interestingly, appears to have been the only State, in oral submissions anyway, to include the Golan Heights as an object of illegal annexation. Readers may recall that the Trump administration recognised Israel’s annexation of the Golan Heights. This step has not been reversed by the Biden administration.

Hungary came across as one of the few supportive of Israel. It emphasised the impact of Hamas and the significance of 7 October. It acknowledged the Abraham Accords as creating “a more conducive environment for a negotiated settlement”. However, it did not address Israel’s expressed non-preparedness to negotiate.

Iran saw the need to emphasise some extra matters: the altering of the character and status of the Holy City of Al-Quds, violation of Palestinians permanent sovereignty over their natural resources, and the negative impact of the US veto power in the Security Council.

Jordan drew attention to its responsibilities under the Hashemite Custodianship of the holy sites, and the special role of the Kingdom towards them. It specifically drew attention to Israel’s violations of the Holy Sites.

Namibia took pains to explain why resolution cannot be left to negotiation. It pressed for the need of time limits and the prospect of sanctions against Israel in the event of non-compliance.

Pakistan emphasised that Israel cannot be allowed to benefit from its own wrongs. It placed significant reliance upon the ICJ’s 1971 Namibia decision and presented it as a clear precedent to be followed in this instance. It drew attention to how the US’s current stand was inconsistent with that decision.

Qatar took pains to point out that because these proceedings were commenced by the General Assembly back in 2022, the issues raised are independent of the events of 7 October 2023. This is perhaps a prescient point. It will prevent Israel from criticising any adverse decision of the Court as facilitating a win by Hamas in the war emanating from 7 October.

Conclusion

It is appropriate to now consider the forthcoming judgment.

The Court is charged with a significant responsibility. It is likely that the Court will take a little time before handing down its decision. That is also impacted by the fact that there are 15 judges. They are not bound to bring in a unanimous decision. In fact, it would be surprising if there was unanimity. One hopes that the decision will however be given added force by the fact of a solid majority.

Notwithstanding my recording of the numbers associated with the States’ views of the identified issues, it should be understood that this is not simply a numbers game. The Court is advising the General Assembly on the impact of international law in the relevant circumstances. That is not to say that the judges might not take some comfort from a strong majority of States’ views on the fact of an issue such as the illegality of settlements.

Any decision will of course go back to the General Assembly which may then resolve to act upon it. Of course, resolutions of the General Assembly have limitations. But a resolution will definitely raise questions for every State member of the UN as to its obligations.

Commentary

The writer wishes to put forward two comments.

The first appertains to the USA. If the ICJ’s decision results in a call by the General Assembly for an end to occupation, two States on the ’67 borders with East Jerusalem as Palestine’s capital, dismantling of settlements, reparations, the right of return of refugees, or any combination of the above it will be difficult for the US not to accept such. The US is forever talking up its “rules-based international order”. The US could not conceivably say that the ICJ and the General Assembly are not significant cogs in that order.

Indulge me for a moment.

The Intercept, the non-profit Washington based news organisation, has this week drawn attention to recent activities of AIPAC – the American Israel Public Affairs Committee. It has noted that AIPAC delivered donations worth $95,000 to Republican House Speaker Johnson in the days after he passed $14 billion in military aid for Israel in November. Further, AIPAC plans to spend upwards of $100 million to oust progressive Democrats who have challenged Israel.

Perhaps the US will say that AIPAC has replaced the ICJ within the ‘international rules-based order’.

The second relates to Australia. Australia did not appear at the ICJ. Why might that have been? Might it have been because it would have meant that Australia would have had to articulate a position on the issues before the Court: is the occupation illegal, have annexations been illegal, has Israel established an apartheid regime in the lands under its control? And if, Australia were to assert, for example, that apartheid does not exist, it would presumably have to assert why – something that the government has refused to do here in Australia for well over a year: refer Australia must clarify Israel’s status as an Apartheid state, November 3, 2022.

Might the fact that Australia did not appear before the ICJ be because it was instructed not to?