Could the ICJ help end Israel's occupation of Palestine?

The UN General Assembly (UNGA) Fourth Committee on 11 November approved a resolution requesting the International Court of Justice (ICJ) to “urgently” weigh in on Israel's “prolonged occupation, settlement and annexation of the Palestinian territory”.

The motion would ask the ICJ to analyse how Israeli policies and practices affect the legal status of the occupation, and the legal consequences arising from this status and from Israel’s denial of the right to self-determination for Palestinians.

The draft resolution, which passed 98-17 with 52 abstentions, focused on Palestinian territory occupied by Israel since the 1967 war: the West Bank, Gaza, and East Jerusalem. It will then go to the UNGA for a final vote before the end of the year. The ICJ will then have the mandate to launch an investigation into Israel’s control of the occupied Palestinian territories, though the process could take months or even years.

The Palestinian delegation to the UN asserted: "Our people deserve freedom. Our people are entitled to freedom".

"The UNGA Fourth Committee approved a resolution requesting the International Court of Justice to 'urgently' weigh in on Israel's 'prolonged occupation, settlement and annexation of the Palestinian territory'"

Israel’s Ambassador to the UN blasted the adoption of the draft, saying that by calling to involve the ICJ, “the Palestinians are decimating any chances of reconciliation”. He referred to the ICJ as a “weapon of mass destruction” exploited by Palestinians, then threatened unilateral measures in response.

While the Palestinian Authority welcomed the measure as a "diplomatic and legal breakthrough”, much uncertainty remains as to whether it will result in actual legal consequences for Israel’s occupation and its countless violations against the Palestinian people.

So, what are the possible implications of such a legal move?

The ICJ in The Hague provides advisory opinions to UN bodies. Based on its advisory jurisdiction, the opinions carry “great legal weight and moral authority” contributing to the development of international law, however, they are not binding. The requesting organisation, in this case, the General Assembly, has discretionary power to decide what consequence to give to these opinions.

The last time the General Assembly asked the ICJ for an advisory opinion on Palestine was in 2004, when the Court ruled that a wall Israel had built, mainly inside the occupied West Bank and East Jerusalem, was "contrary to international law”.

In that instance, as for the legal implications, the Court stated that Israel must cease the construction of the wall and dismantle parts of it, and that all states were under an obligation to ensure compliance by Israel with international humanitarian law. It also said that the UN should consider what further action was required to end the illegal construction.

Nonetheless, Israel unilaterally changed the route of the separation barrier. Nearly 20 years later, the situation has only worsened, with the separation wall stretching over 700km and 85% of its route located inside the occupied West Bank.

To date, Israel has not been held accountable in any meaningful way for its ongoing illegal occupation of Palestine, and the international community has time and again proven that it will not take action, providing Tel Aviv with impunity. This track record raises doubts over whether the latest request for an ICJ opinion will make any difference.

Yet, based on the inviolable character of self-determination, the ICJ could establish that the continued violation of such a right throughout Israel’s 55-year occupation of Palestinian territory could trigger obligations at an international level, as argued by Itay Epshtain, a senior humanitarian law and policy consultant.

In a Twitter thread that followed the UNGA’s recent vote, Epshtain articulated that a grave violation by a state of a “peremptory norm” of international law requires all states to cooperate “to bring to an end any serious breach”.

"The last time the General Assembly asked the ICJ for an advisory opinion on Palestine was in 2004"

For Palestinians, he explained, this could mean “a revitalized role” of the international community in securing their “rights to self-determination” and “ending Israeli aggression, annexation and violations of international humanitarian law”.

In the recent report of the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese spells out that under the law of state responsibility, “the breach of an international obligation by a State gives rise to an internationally wrongful act” which consequently requires the responsible state “to immediately cease the illegal act, ensure non-repetition and provide reparation for the damage done”.

“Given the evident, fully documented unlawful nature of Israel’s occupation, I look forward to UN agencies and ICRC adjusting their approach to Israel/Palestine”, the Special Rapporteur wrote in a tweet.

An extreme-right cabinet formation in Tel Aviv, which is cause for concern for the Biden administration, might prompt the United States to take a resolute stance against Israel’s actions in the framework of the ICJ opinion.

According to Paul Scham, associate research professor of Israel Studies at the University of Maryland, the prospect of hard-right politicians being placed in important positions could eventually lead the US to “take some actions”, though what those might be is hard to say, he said.

“Unless Israel’s new cabinet has gone so far to cause enough unease in Washington, the Americans won’t be willing to criticise Israel and call for legal measures,” the professor told The New Arab. What would make a big difference, he maintained, would be if the US signals to the world that “it no longer stands up against” UN resolutions for Israel to face accountability for its violations of international law and human rights.

If instead the US opposes any possible calls for action resulting from the Court’s opinion - a more likely scenario - it will be up to other states to decide what to do and which measures to eventually adopt, Scham pointed out.

“All the ICJ can do is to state that Israel is violating international law. Then what will the UN do? What will the individual states do?”

American officials have indicated opposition to the possibility that PM-designate Benjamin Netanyahu could appoint certain far-fight politicians to key positions. Amid ongoing coalition negotiations, Jewish nationalist lawmaker Itamar Ben-Gvir hopes to become public security minister, whose duties would include policing and access at Jerusalem’s Al-Aqsa Mosque compound, a flashpoint of violence between Israeli security forces and Palestinian worshippers.

Religious Zionism party leader Bezalel Smotrich, one of the most radical figures to emerge in Israel’s political arena, demanded that he receive the defence portfolio.

"Every single Israeli government since 1967 has embraced an almost consensual rejection of Palestinian self-determination and the norms of international law"

The new Israeli right-wing coalition government led by Netanyahu and his ultra-orthodox and ultra-nationalist allies - expected to be the country’s most far-right coalition - will likely look to further accelerate settlement expansion and restrict Palestinian rights.

But regardless of the coalition makeup, every single Israeli government since 1967 has embraced an almost consensual rejection of Palestinian self-determination and the norms of international law, proving to be happy with the status quo and showing no intent to change it.

In Scham’s view, the latest ICJ measure could potentially offer a “new start of pressure” on Israel in conjunction with the establishment of a new incoming government, at a time of utter political stalemate in the Israeli-Palestinian conflict and Arab normalisation with Israel.

It is up to the international community to work to bring Israel’s protracted illegal occupation to an end and to ensure that it ceases all measures that violate the rights of the Palestinian people.

While not legally binding, the UN committee's request for an ICJ opinion may well increase pressure for political action against Israel. Providing an authoritative interpretation of international law is likely to invite stronger pressure on Israel from third-party states regarding its policies in the occupied Palestinian territories.

It may also help reinforce consensus internationally about the illegality not just of the settlements but of the Israeli occupation of Palestinian territories more generally.

An unfavourable ICJ ruling could lead to further calls for boycott, divestment, and sanctions (BDS) campaigns against Israel. The call for an ICJ opinion has also raised concern in the Israeli media and amongst officials that the ruling may strengthen international support for BDS if the court finds Israel’s continued occupation of Palestinian territory to be unlawful.

Alessandra Bajec is a freelance journalist currently based in Tunis.

Follow her on Twitter: @AlessandraBajec