How a UN court ruling might help Israel-Palestine (or not)

Israel separation wall with tear gas smoke
 Israel ignored a previous ICJ ruling in 2004 that said its separation Wall in the West Bank was illegal and should be dismantled. Keystone / Jim Hollander

As violence flares once again in the Middle East, the United Nations General Assembly has asked the International Court of Justice (ICJ) for an “advisory opinion” on the legality of Israel’s occupation of Palestine. Could an opinion from the world’s top court help unblock a decades-old conflict when other efforts have failed?This content was published on February 3, 2023 – 18:13February 3, 2023 – 18:13Julia Crawford

“Clearly there is very little accountability of the authorities in Israel,” says South African jurist Navanethem Pillay, chair of a UN commission that recommended the request. “There are many well-researched reports on its violations of international law, so the question is why they’ve been able to get away with it for 70 years, slowly squeezing the Palestinians and their right to self-determination.”

Indeed, there have been many legal opinions over the years saying the Israeli occupation of Palestine is illegal. So why might an ICJ opinion make a difference? Pillay points out that it is the UN’s top court, set up by member states. “They said if there’s a dispute, the court intervenes and gives an advisory opinion and interprets international law, reminds states of their obligations,” she told SWI “I think that such a long, drawn-out dispute that has not been resolved and in our view has gotten worse and worse, has to be dealt with by the court.”

Pillay, a former judge at international criminal courts and former UN High Commissioner for Human Rights, now chairs the UN Independent Commission of Inquiry on the Occupied Palestinian Territories, including East Jerusalem, and in Israel,External link set up by the Geneva-based UN Human Rights Council in 2021.

Namibia as an example?

The Commission’s report to the UN General Assembly mentions a 1971 ICJ advisory opinion that said apartheid South Africa’s occupation of Namibia at the time was illegal, which helped end that occupation. “In South Africa we had no legal remedies, so we looked to the UN,” says Pillay. “The US under Ronald Reagan and the UK under Margaret Thatcher used their veto to stop sanctions against South Africa.”

This refers to a 1985 UN resolution that would have imposed mandatory sanctions on South Africa for delaying the independence of Namibia.

She thinks the ICJ ruling on Namibia is a good example of how a legal opinion from that court can help. “So we want to use the law, as was done with Namibia,” Pillay told SWI.

She says she cannot predict the ICJ outcome, but “if they follow international law, we think there’s a good case on why the prolonged occupation of almost 60 years was never envisaged under international law. It was always meant to be temporary.”

The Commission’s first report to the UN General Assembly concludes that “the Israeli occupation of Palestinian territory is now unlawful” because of its permanence and ongoing Israeli moves to annexe Palestinian land.

ICJ precedent on Palestine

“There was a prior request for an ICJ advisory opinion concerning Palestine in 2003, which resulted in an opinion handed down in 2004,” says Cecily Rose, an expert on the ICJ at Leiden University in the Netherlands. That request concerned Israel’s construction of the separation wall in the Occupied Palestinian Territory, including in and around East Jerusalem. The ICJ ruledExternal link that the wall violated international law and Israel must dismantle it, and make reparation for damage suffered. Israel ignored the ruling.

Rose says the ICJ will likely take time to issue a new advisory opinion, possibly a year or more, as proceedings are long, and it currently has a heavy caseload. For example, it is currently dealing with a genocide case brought by Ukraine against RussiaExternal link, and another genocide case against Myanmar brought by GambiaExternal link on behalf of the Organisation of Islamic Cooperation.

The ICJ will issue a deadline for UN member states and international organisations to make submissions. According to Rose, some 30 or more states and organisations can be expected to appear, based on the proceedings on Israel’s wall and a request that was made on the independence of Kosovo.

Who will back Israel?

She says Israel did not participate in the proceedings that led to the 2004 opinion, “so it remains to be seen whether Israel will participate this time”. If Israel does not come, who will argue in its favour? Rose says the vote in the General Assembly is probably a good indicator.

The General Assembly vote on December 30External link reflects the continued international divide over this long conflict. The resolution passed with 87 of 193 UN member states in favour, 26 against and 53 abstentions. Those in favour included all the Arab and Islamic states. Those against included not only Israel but powerful Western states, notably the US.

The US is a traditional backer of Israel. Under former president Donald Trump it recognised Jerusalem as Israel’s capital, and his son-in-law special advisor Jared Kushner presented a planExternal link under which Israel would retain sovereignty over all its settlements and the strategic Jordan Valley. True, Trump is no longer at the helm and Joe Biden’s Secretary of State Anthony Blinken paid a visit to the conflict-torn region on January 31 in which he even spoke of a “two-state solution”. But the US has a powerful Jewish lobby at home, as illustrated by recent controversy over the Harvard fellowship of ex-Human Rights Watch chief Kenneth RothExternal link, a strong critic of Israel.

“Why does Palestine have to struggle so hard?” asks Pillay. “It has a lot of political support, but not of powerful states.” She points out that the request also asks the ICJ to rule on responsibilities for other UN member states. So if it rules that the Israeli occupation of Palestine is illegal, she says “they would have to act, it’s their court”.

Edited by Imogen Foulkes


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