On July 19, 2024, the International Court of Justice (“ICJ”), the United Nations (“UN”) judicial unit, issued an advisory opinion on the “legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory,” in response to the UN General Assembly’s Resolution 77/247. The General Assembly passed Resolution 77/247 on December 30, 2022, with 87 of the 193 member states voting in favor. The resolution requested that the ICJ provide an opinion on two questions: (1) “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…altering the demographic composition…of the Holy City of Jerusalem, and…its adoption of related discriminatory legislation?”; and (2) “How do the policies and practices of Israel…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?” (Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory [“OPT”], Including East Jerusalem, Advisory Opinion, 2024 I.C.J. 25 ¶ 72 (July 19) (“Legal Consequences”)).
In its advisory opinion, the ICJ determined that “Israel’s continued presence in the Occupied Palestinian Territory [‘OPT’] is illegal,” and that “such presence constitutes a wrongful act entailing its international responsibility.” (Id. at 73 ¶ 267). The Court concluded that “Israel must cease all new settlement activity” and that Israel “has an obligation to repeal all legislation and measures creating or maintaining the unlawful situation, including those which discriminate against the Palestinian people….” (Ibid.). In addition to finding that Israel violated international law, the ICJ also demanded that Israel provide “full reparation for the damage caused by its internationally wrongful acts to all natural or legal persons concerned.” (Id. at 73 ¶ 269). The court clarified that restitution included “Israel’s obligation to return the land and other immovable property, as well as all assets seized from any natural or legal person since its occupation started in 1967,” and the “evacuation of all settlers from existing settlements and dismantling all the parts of the wall constructed by Israel that are situated in the OPT.” (Id. at 74 ¶ 270).
To reach this conclusion, the ICJ relied on its 2004 Wall Advisory Opinion, in which it determined that since 1967, Israel has been an “occupying power” in the West Bank and East Jerusalem. (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), 167 ¶ 78) (“Wall Opinion”). In addressing the borders of the OPT, the ICJ stated that the West Bank and East Jerusalem were “occupied by Israel in 1967 during the armed conflict between Israel and Jordan,” and that “under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power.” (Ibid.). In the present case, the ICJ determined that the West Bank and East Jerusalem remain the OPT because Israel continues to exercise “certain key elements of authority” over the territories including “control of the land, sea, and air borders, restrictions on movement of people and goods, collection of import and export taxes, and military control over the buffer zone, despite the withdrawal of its military presence in 2005.” (Legal Consequences, 2024 I.C.J. 3 ¶ 93 (July 19)).
In neither the Wall Opinion nor the July 19 advisory opinion, however, did the ICJ address Israel’s competing legal claims to the territory considered “occupied.” Judge Julia Sebutinde, the sole dissenting judge in the present case, criticized the ICJ’s presumption that Israel has unlawfully occupied territory in the League of Nations Mandate for Palestine (1922), ncluding commitments to facilitate t the establishment of “the Jewish National home” in the territory of the Mandate and allow “close settlement of Jews on the land including State lands and waste lands not used for public purposes,” while safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.”(Arts. 2 & 16).
The dissenting opinion in the instant case emphasized that “the Court has not received arguments or evidence on the territorial scope (i.e., borders) of the State of Israel as on the eve of independence; nor of Israel’s competing territorial claims in relation to the disputed territory.” (Legal Consequences, 2024 I.C.J. 3 ¶ 1 (July 19) (dissenting opinion by Sebutinde, J.)). Judge Sebutinde noted that the competing territorial claims between Israel and Palestine “are the issues that must first be addressed before the legal consequences of the alleged occupation of territory by Israel, or the territorial scope of Palestinian self-determination, can be determined.” (Ibid.).
Abuse of the ICJ’s Discretion in Issuing an Advisory Opinion
Judge Sebutinde determined that while the ICJ had proper jurisdiction to “entertain” the request from the General Assembly in Resolution 77/247, “the Court, in exercising its discretion judiciously and maintaining the integrity of its judicial role, should have refrained from rendering the Advisory Opinion requested.” (Ibid.). The ICJ has discretion to decline to give a requested opinion “if there are compelling reason[s]” to decline. (Western Sahara Advisory Opinion, 1975 I.C.J. 20 ¶ 19). In determining whether there exists a “compelling reason” not to issue an advisory opinion, the ICJ must decide “whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion…compatible with its judicial character.” (Wall Opinion, 2004 I.C.J. 240 ¶ 1) (declaration of Buergenthal, J.)).
In the present case, Judge Sebutinde stated that the ICJ did “not have before it accurate, balanced, and reliable information to enable it to judiciously arrive at a fair conclusion…in a manner compatible with its judicial character.” In the dissent’s view, “most of the participants in these advisory proceedings have, regrettably, presented the Court with a one-sided narrative that fails to take account of the complexity of the conflict and that misrepresents its legal, cultural, historical, and political context.” (Legal Consequences, 2024 I.C.J. 19 ¶ 43 (July 19) (dissenting opinion by Sebutinde, J.)). Resolution 77/247 thus posed questions to the ICJ in a “one-sided formulation,” and by doing so, “shields from the purview of the Court[] the policies and practices of the Palestinian Arabs and their representatives (including non-state actors), as well as those of other Arab States in the Middle East whose interests are intertwined with those of the Palestinian Arabs.” (Id. at 18, 19 ¶ 42). “[W]thout information regarding the policies and practices of Israel’s adversaries,” Judge Sebutinde added, “the Court is limited in its opinion regarding the various complex issues behind the Israeli-Palestinian conflict and has, as feared, resorted to imposing obligations on Israel, whilst disregarding her legitimate security concerns and the obligations of Israel’s Arab neighbours.” (Ibid).
Moreover, the dissent noted, the ICJ’s advisory opinion “clearly circumvents and is likely to jeopardize the existing internationally sanctioned and legally binding negotiation framework for the resolution of the Israeli-Palestine conflict.” (Id. at 19 ¶¶ 43, 44). In 1993 and 1995, the Palestinian Liberation Authority (“PLO”) and Israel “painstakingly concluded a series of agreements known collectively as the Oslo Accords, signifying their intention to ‘put an end to decades of confrontation and to live in peaceful coexistence, mutual dignity and security, while recognizing their mutual legitimate and political rights.’” (Ibid.) (quoting Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, 28 September 1995, Preamble). In fact, Article XII of the 1995 agreement provided that “Israel shall continue to carry the responsibility for defense against external threats, including…the responsibility for overall security of Israelis and Settlements, for the purpose of safeguarding their internal security…and will have all the powers to take the necessary steps to meet this responsibility.” (Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, 28 September 1995, Article XII). The Oslo Accords also have a “specific dispute resolution mechanism and do not permit either party to unilaterally resort to external, third-party, or judicial settlements.” (Legal Consequences, 2024 I.C.J. 20 ¶ 44 (July 19) (dissenting opinion by Sebutinde, J.) (citing Declaration of Principles on Interim Self-Government Arrangements, 1993, Arts. I and IV)). In responding to whether the ICJ’s advisory opinion would “undermine the negotiation process between Israel and Palestine,” the majority simply stated that whether the opinion would “have an adverse effect on the negotiation framework is a matter of conjecture on which the Court should not speculate,” and that “the General Assembly has the competence to address matters concerning international peace and security.” (Legal Consequences, 2024 I.C.J. 20 ¶ 43 (July 19)). The majority opinion makes no reference to the dispute resolution mechanism in the Oslo Accords.
Judge Sebutinde also referenced the 2003 Road Map, an additional Israeli-PLO agreement to operationalize the Oslo Accords, which states that a two-state solution and lasting peace will only be achieved “through an end to violence and terrorism, when Palestinian people have a leadership acting decisively against terror and willing and able to build a practicing democracy based on tolerance and liberty, and through Israel’s readiness to do what is necessary for a democratic Palestinian State to be established.” (A Performance-Based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, 2003, Annex). Judge Sebutinde further noted that “[i]t is no wonder, the Security Council, the organ of the United Nations charged with the primary responsibility for international peace and security, is not the one that requested the Court for an advisory opinion on the Israeli-Palestine conflict,” as the General Assembly’s request only addresses the legal obligations of Israel, “ignoring the rights and obligations of both parties as envisaged in the Oslo Accords and Road Map, both of which exclude recourse to the Court.” (Legal Consequences, 2024 I.C.J. 19 ¶ 43 (July 19) (dissenting opinion by Sebutinde, J.)).
Judge Sebutinde’s final argument for why the ICJ should not have issued an advisory opinion is that the court “circumvent[ed] the principle of State consent.” (Id. at 20 ¶ 46). The ICJ previously ruled that the court should not render an advisory opinion if it “would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent.” (Western Sahara, Advisory Opinion, 1975 I.C.J. 25 ¶¶ 33, 34) (holding that the issue of state consent did not apply because the legal controversy in question “did not arise independently in bilateral relations.”). Judge Sebutinde clarified that this is because the “United Nations primarily operates on the principle of State sovereignty and typically cannot impose resolutions without the agreement of the State.” (Legal Consequences, 2024 I.C.J. 26 ¶ 66 (July 19) (dissenting opinion by Sebutinde, J.)). Israel submitted a written statement to the ICJ during the proceedings, emphasizing that the General Assembly’s “request for the Court’s advisory opinion perversely seeks to circumvent the lack of Israel’s consent, and to make a dead letter of the fundamental international legal principle underlying the indispensable need for it.” (Legal Consequences, 2024 I.C.J. 4 (July 19) (written statement of Israel)). The majority responded to this argument by stating that the “Court does not regard the subject-matter of the General Assembly’s request in the present case as being only a bilateral matter between Israel and Palestine,” but that the case is “part of the Palestinian question,” and is therefore “a matter of particular interest and concern to the United Nations.” (Legal Consequences, 2024 I.C.J. 17 ¶ 35 (July 19)). Judge Sebutinde concluded that the ICJ should have declined to give an opinion and that “Israel and Palestine, the two parties to the conflict, should be encouraged to return to the negotiating table and to find a lasting solution jointly and consensually.” (Id. at 21 ¶ 48).
Substantive Shortcomings of the Advisory Opinion
Judge Sebutinde criticized the ICJ for finding that Israel’s presence in the disputed Palestinian territories is illegal per se, without giving credence to “the fact that Israel has its own sovereignty claims regarding parts of the territory which the international community views as the OPT.” (Id. at 24 ¶ 59). The dissent emphasized that “[a]lthough there appears to be a broad international consensus around the proposal that the two-State solution should be implemented based on Israel’s 1967 borders, such political consensus cannot, in and of itself, bestow title territory where none exists under international law.” (Ibid.). Judge Sebutinde argued that “[d]etermination of sovereignty may entail, for example, taking cognizance of and treating differently areas where there was a predominantly Jewish presence pre-1948 (e.g., the Jewish Quarter of Jerusalem or Gush Etzion) vis-à-vis other areas from which Israel unilaterally withdrew (e.g., the Gaza Strip).” (Ibid.). Judge Sebutinde criticized the Court for adopting Resolution 77/247’s presumptions that the Israeli occupied territories are the exclusive sovereign territory of the Palestinian people, because under the existing Oslo Accords and Road Map agreements, “the question of the final disposition of these areas shall be determined only by negotiation,” and that the ICJ “frankly does not have before it sufficient information to even make an educated guess.” (Id. at 27 ¶ 68).
Judge Sebutinde disagreed with the ICJ’s call for the immediate withdrawal of Israel from the occupied Palestinian territories without any consideration for Israel’s legitimate security concerns. She argued that the ICJ should have distinguished the Israel-Palestine conflict from other international situations “involving calls for an immediate end of colonization or occupation or expired legal mandate,” because of “the existential and security threats posed to the Jewish people and State of Israel, from the disputed territories and from its adversaries in the neighbourhood.” (Id. at 23 ¶ 56). Judge Sebutinde emphasized that it is “undeniable that there are States and non-State actors who have openly expressed a desire to see the State of Israel, not just withdraw from the OPTs, but also wiped off the face of the earth, including from its own territory,” and that in light of this, the UN Security Council’s resolutions 242 (1967) and 338 (1973) have “called for a withdrawal that occurs concurrently with effective security guarantees.” (Ibid) (citing Security Council resolution 242 of 22 November 1967 and Security Council resolution 338 of 22 October 1973).
Finally, Judge Sebutinde took issue with the Court’s application of reparations to Israel’s alleged violations of international law identified in the advisory opinion as “[t]his is clearly a situation where there is enough blame to go round, not just of Israel but also of Arab Palestinians (for the failure of prior peace negotiations and for resorting to war) and, to some extent, the international community, for taking so long to find a lasting solution.” (Id. at 24 ¶ 61). The internationally binding Oslo Accords and Road Map agreements recognize that “[t]he solution of two States coexisting peacefully side by side, has never lain in the hands of one or the other party,” and as Judge Sebutinde argued, “Israel’s unilateral withdrawal from the OPTs (short of vanishing from the face of the earth) is not going to bring about the much-needed peace in the Middle East.” (Id. at 25 ¶ 61). Critically, Judge Sebutinde noted that in all cases of decolonization or UN mandates “where the occupying or colonial power has benefitted from decades of plundering the natural and mineral resources in the occupied territory or colony, the people of those territories have upon attainment of self-determination, not received any reparations for their loss, much less that restoring them to the status quo ante!” (Id. at 25 ¶ 62). Judge Sebutinde emphasized that “[w]hile acknowledging Arab claims to the land, it is crucial to recognize that Jews in Israel are not settler colonists either,” and that “[b]oth Jewish and Arab connections to the region are deeply intertwined.” (Id. at 5 ¶ 6). Given the complexity and historical context of the Israeli-Palestine conflict, Judge Sebutinde concluded that achieving a permanent solution “requires carefully negotiated agreements between the parties involved,” and that “[j]udicial recommendations based upon one-sided narratives and made in a contextual vacuum, are least likely to assist the United Nations General Assembly or the Security Council to achieve this noble goal.” (Ibid).
Conclusion
As we have written previously in these pages (here and here), we again confront an ostensibly neutral World Court intent on a one-sided condemnation of Israel. We hope one day this court will abandon its unhelpful partisanship and address seriously the legal issues confounding a lasting peace in this troubled region.
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