On November 11 a UN Special Committee voted in favour of requesting the International Court of Justice (ICJ) to provide an advisory opinion about whether Israel’s 55-year occupation of the West Bank and East Jerusalem constitutes de facto annexation.
The motion was supported by 98 countries and opposed by 17, while 52 abstained. The Palestinian foreign minister Riyad al-Malki, jumping the gun, declared: “This decision opens a new era in which Israel will be called to account.” In fact, the next step is for the committee’s resolution to be debated by the UN General Assembly, and only if the voting figures remain similar and the motion is passed will it move to the ICJ in The Hague. The court could then take months – possibly years – to draft an advisory opinion.
It is, unfortunately, relevant to question the value, and indeed the objectivity, of opinions provided by the ICJ. Israel has historically faced an in-built majority against it within the organs of the UN. Critics of the ICJ have always maintained that its jurists favor the interests of the states that nominate them. The current membership includes jurists from Lebanon, Somalia, Uganda, Brazil and Russia.
In March 2020 the ICJ submitted observations in support of the International Criminal Court’s jurisdiction over Palestine which, the ICJ determined, comprises the West Bank, including East Jerusalem, and Gaza. It further opined that “Palestine is a State under international law…The decades-long belligerent occupation of Palestine…has no decisive legal effect on the validity of its claim to sovereignty and statehood.” However Drake University, in its paper “The Legal Status of Palestine” concludes: “Palestine is an autonomous entity, not a state… Palestine cannot legally be considered a state under international law.”
In 2004 the UN General Assembly requested an opinion from the court about Israel’s security barrier in the West Bank and East Jerusalem. The ICJ determined that the barrier was illegal. One international law journal declared: “the context overtook the law in the production of the opinion, and has thereby distorted the result. As a consequence, the ICJ has done significant damage to its credibility and to the aspects of international law traversed in the opinion.”
There is, in short, a certain lack of confidence in the impartiality of determinations by the ICJ. If the ICJ is indeed going to be asked to give a judicial opinion on a matter as fundamental as the legal status of the West Bank and East Jerusalem, it would not be unreasonable for Israel to request the right to argue its case before the court, and for its arguments be given full weight in any advisory opinion. It is not satisfactory for Israel’s case to be determined behind closed doors by jurists some of whom do not enjoy the confidence of those being adjudged. The issues the ICJ may soon be considering are too important to be determined by a mechanism that does not command universal confidence as to its objectivity.
The historical, political and legal issues are extremely complex. An Israeli take on them was set out in convincing detail in a recent study by Professor Abraham Sion. He submitted the entire legal process leading to the establishment of the State of Israel to meticulous forensic examination, and he demonstrates beyond any doubt that judicial rulings from the UN, the EU, the ICJ and elsewhere have often been at odds with a scrupulous interpretation of their legal basis. Over the past few decades international bodies have reached a consensus that the West Bank and East Jerusalem are Palestinian territory, and that Israeli towns and cities in Judea and Samaria are illegal. Sion uncovers the solid legal building blocks that have been ignored or overlooked.
Sion is not alone in reaching conclusions like these, but of course they have never been tested openly in any international judicial forum. If in due course the UN General Assembly asks the ICJ for an opinion, how could the court possibly render a valid legal determination without having the issues raised by Sion and many others argued before it?
On the very day that the UN committee voted to appeal to the ICJ for an opinion –Thursday, November 11 – the ICJ began public hearings in The Hague in a long-running dispute between Venezuela and the former British colony of Guyana on the issue of the border between them. Each party is presenting its case to the court in preliminary hearings scheduled to last until November 22. The proceedings are not only open to the public, but they are being videoed and publicized widely on social media.
The precedent has been set. Any judicial consideration by the ICJ of the Israel-Palestinian boundary dispute requires no less. It is unacceptable for the ICJ to deliver an opinion on this seminal issue reached in private and without the benefit of representations. If the ICJ agrees to proceed, the parties must be permitted to present their case to the court in sessions open to the public. Moreover, in the interests of fairness, the members of the court selected to consider the issue must be acceptable by all the parties concerned as truly objective and unbiased.