Israel is back at the International Court of Justice

It was a vote Israel and the US moved heaven and earth to stall, but that took place anyway, with timing that couldn’t have been more apt.

On the evening of December 30, two days after a declaration by the incoming government of Benjamin Netanyahu that “the Jewish people have an exclusive and inalienable right to all parts of the Land of Israel,” including the illegally annexed Syrian Golan Heights and “Judea and Samaria,” the UN General Assembly passed a resolution asking the International Court of Justice (ICJ) to render an Advisory Opinion on the legality of Israel’s 55-year occupation of the Palestinian West Bank.

Formally entitled “Israeli practices and settlement activities affecting the rights of the Palestinian people and other Arabs of the occupied territories,” the resolution asks the international community’s highest permanent court to opine on 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 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 resolution’s reference to “discriminatory legislation and measures” opens the door for the ICJ to weigh in on the question of Israeli apartheid.

Specifically, the ICJ has also been asked to assess how Israeli practices “affect the legal status of the occupation.” In other words, whether or not Israel’s fifty-five-year belligerent occupation of the Palestinian territories is legal, as occupations are defined under the Fourth Geneva Convention (1949) and customary international law.

Moreover, the ICJ has also been asked to assess the obligation of “Third State Parties” to uphold the rule of law.

The 15-member court, based in The Hague, is not obliged to render an opinion, but is unlikely to refuse. This will be the first ICJ ruling on Israel-Palestine since its landmark 2004 Advisory Opinion on Israel’s separation wall — a narrower issue than the questions it has just been asked to consider.

These questions have been circulating at the UN for months.

Blocking the road to the ICJ

In May, the Independent International Commission of Inquiry on the OPT (the Pillay commission), cited “prima facie credible evidence … that Israel has no intention of ending the occupation, has clear policies for ensuring complete control over the Occupied Palestinian Territory, and is acting to alter the demography through the maintenance of a repressive environment for Palestinians and a favourable environment for Israeli settlers.”

In late September, in her first report as UN Special Rapporteur on the human rights situation in Palestine, Italian human rights lawyer Francesca Albanese described Israel as an “intentionally acquisitive, segregationist and repressive regime designed to prevent the realization of the Palestinian people’s right to self-determination,” and called for the dismantlement of Israel’s “settler-colonial occupation and its apartheid practices.”

With these charges before the UN, in November the State of Palestine tabled an “agenda item” at the UN Special Political and Decolonization Committee (Fourth Committee) containing three draft resolutions. The first two focused on Israel’s annexation of the Golan Heights and West Bank settlement enterprise. The third called for the ICJ Advisory Opinion.

On November 11, the Fourth Committee passed the Golan Heights resolution by a vote of 148 to 3, with 22 abstentions, the settlements resolution by a vote of 150 to 8, with 14 abstentions, and the ICJ resolution by a vote of 98 to 17, with 52 abstentions.

Knowing a vote on the floor of the Assembly was unavoidable, Israel and its allies stepped up their game, lobbying to stall a vote on the resolution, to turn yeas into nays or abstentions, or simply to delay a vote until late December, when delegates would be absent, informed sources told Mondoweiss. 

Their efforts paid off. On December 12, the General Assembly approved the Fourth Committee’s Golan Heights and Israeli settlement resolutions, but placed the ICJ resolution on hold, further to an examination of its budgetary implications by the UN’s Administrative & Budgetary Committee – the Fifth Committee. The UN Secretary General had pegged the cost of an ICJ Advisory Opinion at $255,000, for which no provision in the UN’s 2023 budget had been made. The UN’s 2022 budget topped three billion.

Although the Secretary General’s cost estimation seems paltry, its approval by the Fifth Committee, within the UN’s 2023 budget, dragged on. 

“If we choose to play a waiting game, we will all wait for the new year together, in this basement,” said Philippe Kridelka, Belgian chair of Fifth Committee, on the afternoon of Dec. 23, without any specific mention of the ICJ allocation. “It is entirely senseless. Negotiating is not a waiting game. Making progress requires substantial engagements in good faith.”

The push for financial accounting appeared to be an “attempt by the United States and Israel to reduce the number of votes in favour of the resolution,” an informed source told Mondoweiss. The source was not aware of any past demand for financial accountability on an ICJ advisory opinion request.

On Dec. 23, a Fifth Committee decision imminent, Ha’aretz’ Jonathan Lis reported that Israel has been trying to “recruit states to oppose it.”  Yair Lapid, the face of liberal democracy and the rule of law in Israel, had written letters to “more than 60 countries,” Lis reported.

Lapid’s letters, and the efforts of US and other Western diplomats (Canada no doubt at the lead) were for naught.

On the afternoon of December 30, by a vote of 105 to 13, with 37 abstentions, the Fifth Committee approved the projected cost of an ICJ Advisory Opinion, buried in a host of other resolutions.

Hours later, the Fifth Committee presented its approved budget to the General Assembly. By a vote of 87 to 26, with 53 abstentions, the General Assembly passed the ICJ resolution.

Among those joining Israel in opposing the resolution: the US, Canada, UK, Germany, Italy, Hungary and Australia. Belgium, Portugal, Poland, Iceland and Luxembourg supported the resolution, along with the majority of Arab, African and Asian states. France, the Netherlands, Sweden, Norway, Denmark and Finland abstained.  

On the way to The Hague

The reduced vote in favour, and high number of abstentions “shows the intense pressure from the US, and perhaps the UK as well, on behalf of Israel … in order to reduce the legitimacy (in their eyes) of the request for an advisory opinion,” an informed observer told Mondoweiss, by email, in the wake of the vote. “Nonetheless, the resolution was overwhelmingly adopted, so we are on our way to The Hague.”

An ICJ Advisory Opinion will likely not be rendered before the end of 2023 or early 2024. Israel will surely ignore it, as it did the Wall decision, and Israel’s Western allies — who favour power politics over international law on Israel-Palestine matters — will have Israel’s back.

But unconditional support for Israel will be harder to muster, observers have told Mondoweiss. An incisive ICJ Advisory Opinion would undermine the cornerstone of Western realpolitik: that Russia, China, Iran, Syria, and North Korea — indeed, all states not aligned with the West — must respect UN institutions and the rule of law, but that consideration of Israeli behaviour must be untethered from international law.

“Indeed, for a long time there have been those insisting, on the basis of realpolitik, that it is best to set aside legal disputation and to instead focus on political compromise,” says Eitan Diamond, senior legal expert with the Jerusalem-based Diakonia International Humanitarian Law Centre.

“On this view, a focus on international law, or justice, may be an obstacle to peace,” Diamond told Mondoweiss.

“Even if such arguments were once tenable (and there is good reason to question that they ever were), at this point they clearly are not,” says Diamond. “For some time now, Israel has made it clear that it is intent on retaining its control over Palestinian territory indefinitely. Under these circumstances, to sacrifice justice in the vain expectation of peace would only serve to perpetuate and deepen the oppression that Palestinians are enduring under Israeli domination.”

While Israel and its Western allies have dismissed or ignored the ICJ’s 2004 Wall decision, a second advisory opinion on the legal implications of the current situation would be different, says Anna-Christina Schmidl, another staff member with Diakonia.

“Unlike the Wall Advisory Opinion, which focused on a comparatively narrow set of factual and temporal circumstances […] the requested advisory opinion would entail an evaluation of the legality of Israel’s occupation as a whole,” Schmidl told Mondoweiss.

Such an opinion would focus on “the impact of ‘colonial domination, alien subjugation and foreign occupation’, on the right to self-determination, and thus go to the very heart of the principles upon which the United Nations was founded.”

For Schmidl, the reason why this time would be different is simple: that the “values that are enshrined in the UN Charter and thus fundamental to the international community have been systematically violated for more than five decades, coupled with an extensive finding of third State responsibility, should – at least momentarily – upset the political calculus.”

“Yes, of course it would be significant,” former UN Special Rapporteur Michael Lynk told Mondoweiss. 

“We have to acknowledge that the countries of the Global North have considerable powers of their own to ignore, to obfuscate and to send us off in other directions,” says Lynk. “But I’m certain that a positive advisory opinion from the ICJ  would raise the legitimacy of the Palestinian quest for freedom and self-determination even higher […] it would make it harder for the West, whose very inaction and complicity makes the occupation and makes the apartheid possible, to continue.