ICJ to be asked for advisory opinion on Israel’s occupation of Palestinian territories

Fifty-two states are scheduled to make representations to the International Court of Justice (ICJ) over the coming week in a case asking its judges for an advisory opinion on the legality of Israel’s long-term occupation of Palestinian territories, including East Jerusalem.

The case, to be led by Indonesia on behalf of the UN general assembly, is quite separate from the action brought last month by South Africa alleging genocide by Israel against the Palestinian population of Gaza in response to the October 7th Hamas attacks. Israel rejected that charge as “a blood libel”.

In that case, the ICJ, which is the UN’s highest court, ordered Hamas to release all hostages immediately and unconditionally as an emergency measure, and ordered Israel to take every possible measure to avoid genocidal acts as part of its military campaign. It did not order a ceasefire.

This latest action, however, is substantially different. The ICJ has the authority to hear two types of case: legal disputes between member states, such as the case between South Africa and Israel, and requests for advisory opinions on legal questions from UN bodies and agencies.

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This request for an advisory opinion focuses specifically on the “legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem” and comes on foot of Resolution 77/247 adopted by the UN General Assembly on December 30th, 2022.

As part of the advisory opinion process, two multi-faceted questions have been placed before the ICJ judges for consideration. Advisory opinions are not legally binding but, according to the ICJ itself, are frequently “an instrument of preventative diplomacy and have peace-keeping virtues”.

The first question is: “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?”

The second question reads: “How do the practices and policies 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 United States was one of 26 UN member states that voted against the resolution on the grounds that it would, warned state department spokesperson Ned Price, be “counter-productive” in that it could distract the parties from the objective of “a negotiated two-state solution”.

Similarly, a bipartisan group of US politicians urged secretary of state, Antony Blinken, to support Israel at the ICJ, writing: “Weaponising the UN system to delegitimize and criminalize Israel will not lead to peace, which must ultimately be negotiated directly by Israel and the Palestinians.”

However, Indonesia is taking the lead on behalf of the UN General Assembly in requesting the advisory opinion because, says foreign minister Retno Marsudi, “the right of the Palestinian people to self-determination must be respected. Israel’s occupation of Palestine … will not erase that right”.

While the two cases involving Israel before the ICJ are not connected legally, Slovenia’s foreign minister, Tanya Fajon, acknowledged that they were not totally divorced either: “In light of recent events in Gaza and the West Bank, Slovenia is one of the few EU countries that has decided to actively participate and present its views in these proceedings.”

Ireland is among the states scheduled to make representations. The government is expected to be represented by the attorney general, Rossa Fanning SC, on the fourth of six days of hearings. Mr Fanning is expected to address the 15 judges for about 30 minutes, making Ireland the fifth of eight EU countries to do so.

Apart from Ireland and Slovenia, the other EU countries participating are France, Spain, Belgium, the Netherlands, Luxembourg and Hungary.

Under the system for ICJ advisory opinions, states and international organisations wishing to participate must first submit confidential written statements. Last August, the court said 57 had been lodged, including by Israel and the State of Palestine, a UN observer stated.

Those submissions are then followed by the oral proceedings which begin on Monday, February 19th, with three hours allocated to the State of Palestine. They conclude on Monday, February 26th.

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