What is the significance of ICJ case examining the Israeli occupation of Palestine?

On Monday a week-long hearing began at the International Court of Justice (ICJ) in The Hague, which has been ordered to give its advisory opinion on "Israeli practices that affect the human rights of the Palestinian people in the occupied Palestinian territory, including East Jerusalem" following a resolution from the UN General Assembly on 30 December 2022 (Resolution 247/77).

52 states and three regional organisations are set to make oral submissions - the highest number of participating states ever at the ICJ since it was established in 1945.

During the six hearings which will take place between Monday 19-26 February, each state will provide a half-hour oral intervention giving its point of view on the procedural and substantive issues arising. The court will subsequently issue an advisory opinion on the following questions:

• 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?
• How do the policies and practices 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?

To gain a broader understanding of the merits of the ICJ, Al-Araby Al-Jadeed, The New Arab's Arabic-language sister edition, interviewed Dr. Sonia Boulos, Assistant Professor of Law and International Relations at the University of Antonio de Nebrija University, Spain.

Significance of the ICJ process and record number of participants

"The International Court of Justice is the main judicial organ of the UN. It was established in line with the UN Charter in 1945. The court has a dual role: Firstly to adjudicate, in accordance with international law, through rulings that are binding and without appeal for the parties concerned in legal disputes referred to it [...] and secondly, to offer advisory opinions on legal matters which are referred to it by UN organs and its authorised agencies," said Boulos.

"In January 2023, the Registrar of the Court issued a notice of request for an advisory opinion to all states entitled to appear before the Court, under Article 66, paragraph 1, of the Statute of the Court. The Registrar decided that the UN and member states, in addition to the observer State of Palestine would likely be able to submit information on the questions submitted to the court".

Boulos pointed out that 57 non-public written statements had been submitted to the court which was "a record number, and though the court won't publish the written statements until the beginning of the public hearings, according to the Le Monde, a large majority of the 57 submissions acknowledged the court's jurisdiction to issue an opinion on the issues raised; only about 10 or so statements objected to the referral to the court".

"It's easy to guess the positions of the countries and regional organisations concerned given their previous record on Palestine. As for the hearing, 52 states and three international organisations have expressed their determination to participate in the court's oral proceedings.

"The broad participation in the hearings, as well as the many written submissions, reflects the growing global momentum around addressing the ongoing, decades-long failure to ensure respect for international law, and the failure to protect the right of the Palestinian people to self-determination".

What is the significance of an advisory opinion from the ICJ in legal terms?

An advisory opinion from the ICJ is not legally binding. However, according to Boulos, "it reflects the highest international court's interpretation of the rules of international law. Therefore, it wields great moral and legal authority and can play a pivotal role in legitimising or delegitimising the political stances of the majority of UN members. It can also eventually become a part of customary international law, which is legally binding on all states".

Notably, in 2004 the ICJ issued an advisory opinion concerning Palestine – regarding Israel's apartheid wall in the occupied West Bank, the ICJ decision recognised the illegality of the wall and called for its removal.

"The ICJ is set for the first time to broadly consider the legal consequences of Israel's nearly six-decades-long occupation and mistreatment of the Palestinian people," said Clive Baldwin, senior legal adviser at HRW 👇https://t.co/Lh1Pdhxqk8

— The New Arab (@The_NewArab) February 17, 2024

However, according to Boulos, this advisory opinion differs significantly from the advisory opinion on the wall "because it focuses on the occupation itself as a whole."

Boulos pointed out that recently, "there was a growing number of legal reports which reflected a paradigmatic shift on the Palestine/Israel issue, which identified the Israeli regime as being an apartheid regime.

While the UN General Assembly had not requested a direct legal opinion regarding Israel's apartheid regime, the existence of which was acknowledged by former UN Special Rapporteur Michael Lynk, some states would address Israel's policies in the occupied territories as a part of a wider discussion about the discriminatory legislation and measures Israel imposes and which are consistent with the definition of apartheid.

"The apartheid paradigm has the benefit of providing a more comprehensive analytical framework, in the sense that it doesn't treat repeated and systematic violations of international law in isolation, but rather attempts to focus on their common fundamental goals and purpose".

Boulos explained the international law governing occupation: "Historically, the law of occupation permits temporary occupation until the end of hostilities, which doesn't negate wider basic principles of international law, like the right of peoples to self-determination, and the prohibition against annexation of occupied land.

"When the occupation acts as a sovereign in the occupied territories, by depriving the occupied people from their right to self-determination and by annexing their land, then it can be said that it is illegal as a whole.

"Therefore, it is likely many of the participating states will argue that Israel's prolonged occupation of Palestinian territories is illegal because it conflicts with the right to self-determination of peoples".

Boulos confirmed that the international community had "recognised the right of the Palestinian people to self-determination time and time again, including in the advisory opinion of 2004 on the legal consequences of building the wall.

"It is also expected that the occupation will be attacked as illegal because it contravenes the Law on the Use of Force between states, which requires a lawful purpose such as self-defense against an actual or imminent armed attack by another state, and for failure to comply with the strict requirements of necessity and proportionality in relation to all measures taken to repel an armed attack, including the occupation of territory."

Boulos said that Israel had insisted in the past "that its occupation of the Palestinian territories was temporary until an agreement was reached through negotiations with the Palestinians. However, the establishment of the Israeli settlements in the occupied lands has left no room for doubt that this stance had been deceptive.

"In fact, the current Netanyahu government has declared that the Jews have exclusive rights to self-determination in historic Palestine, and has pledged to strengthen policies described as policies of de facto annexation. All this will bolster the legal position of the states which claim the occupation in its entirety  -and not just some or most of its policies - is illegal".

What steps can Palestinians take if an advisory opinion is issued against the Israeli occupation?

As for steps which could be taken if the decision issued is favourable to the Palestinians and against the occupation, Boulos said "this depends on the substance of the opinion issued by the court. In 1970, the court was asked to issue an advisory opinion on the legal consequences of the continuation of the presence of South Africa in Namibia.

"After it became clear South Africa had failed to ensure the well-being and security of the indigenous people of Namibia, the UN General Assembly in 1966 terminated South Africa's mandate and declared that South Africa had no right to administer the territory. In 1969, the Security Council called on South Africa to withdraw its administration, which it referred to as "occupation" and in 1970 declared South Africa's "continued presence" in Namibia illegal.

"In its advisory opinion, the ICJ held that 'in the absence of a valid mandate, South Africa has no legal grounds for its continued presence in Namibia and is therefore obliged to withdraw unconditionally from the territory".

She added, "when a state flagrantly or systematically fails to fulfil an obligation arising from a peremptory norm, such as the right to self-determination of peoples, other countries are obligated to put an end to the violation, including by not recognising the situation, or providing assistance in maintaining it.

"In Namibia's case, states were obliged not to recognise the legitimacy of South Africa's claim to quasi-sovereign ownership of the territory and to refrain from entering into economic and other transactions with South Africa, which could have consolidated South Africa’s authority over Namibia".

Boulos pointed out the similarity between military occupations and mandates - "both are regional administrations assumed to be temporary, and both impose obligations on the responsible power to ensure the wellbeing and security of the local inhabitants".

She explained that the ICJ opinion on the wall had concluded the wall's construction in the occupied territories was illegal "because the separation wall and the associated regime created a 'fait accompli' on the ground that could amount to de facto annexation. And it stressed the duty of states not to recognise the illegal situation resulting from the construction of the wall, or to provide assistance in its establishment".

Here, Boulos indicated that if the ICJ result entailed "that the Israeli occupation as a whole was illegal […] this means that the removal of the occupation from a legal point of view must be immediate and not conditioned on negotiations, as states which support Israel claim.

"To expedite the ending of the occupation, the court could issue a recommendation similar to the one issued in Namibia's case. This could open the door for various political and legal procedures, and could amount to a baseline for states to demand tangible measures be adopted, like refraining from entering into economic and other dealings with Israel.

"Legal proceedings could be adopted against states and companies which fail to honour their commitments not to recognise or offer assistance to unlawful situations which arise from the deprivation of the Palestinian people of their right to self-determination."

Boulos concluded: "If the court decides that the situation in the Palestinian territories occupied in 1967 amounts to the international crime of apartheid, or of persecution as a crime against humanity, this will be crucial to pressuring the International Criminal Court to move forward with its investigations".

Translated from Arabic by Rose Chacko