CIVICUS speaks with Rebecca Shoot, Executive Director of Citizens for Global Solutions, about the advisory opinion recently issued by the International Court of Justice (ICJ) on Israel’s presence in the Occupied Palestinian Territories.
In response to a 2022 request by the United Nations (UN) General Assembly, on 19 July the ICJ issued an advisory opinion declaring Israel’s presence in the Occupied Palestinian Territories (OPT) illegal. Citing violations of international law and Palestine’s right to self-determination, it urged that Israel end the occupation ‘as soon as possible’. It called for an immediate halt to Israeli settlements in the West Bank and East Jerusalem and urged other states not to aid or assist Israel in maintaining its presence. The ICJ is the UN’s highest court, and while its advisory opinions aren’t binding, they set important precedents.
How important is the ICJ’s advisory opinion on Israel’s occupation of Palestinian territories?
Advisory opinions are one of the ICJ’s greatest but least used tools. Unlike contentious cases between states, advisory opinions are legal questions submitted by the UN General Assembly or other UN bodies. The ICJ handles a wide range of advisory requests, including on climate change, deep sea mining and territorial disputes. States can submit third-party observations and written submissions.
The much-anticipated advisory opinion the ICJ delivered on 19 July was requested by the General Assembly on 30 December 2022 and addressed the question of whether Israel’s actions in the OPT violate international law. It concluded that they did indeed constitute multiple violations of international law. The ICJ issued 14 separate opinions. On several key points, the majority was decisive, with votes such as 14 to one, 12 to three and 11 to four, indicating a strong consensus among the judges.
While in other controversial or contentious cases the ICJ has opted to be more discreet, in this case it went quite far in giving its opinion. For example, while occupations are usually associated with military armed conflict, in this case the court said there were other ways in which Israel was illegally occupying the Palestinian territories, such as by applying its own law. It concluded this was also a violation of international law.
It also found Israel had violated human rights treaties, which apply extraterritorially when a state exercises jurisdiction outside its territory. This means the human rights violations found to have been committed by Israel are violations of international law.
The court also found that Israel’s discriminatory policies and unequal treatment of Israelis and Palestinians under the law violated several human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.
We expected the ICJ to find that Israel’s actions constituted a violation of international law, but we didn’t expect it to be so expansive in its reasoning or identify such a wide range of violations. It cited violations of international humanitarian law, international human rights law, the UN Charter and the principles of state sovereignty and self-determination. It represents a significant advance in international law and is likely to be studied and debated for years to come.
With regard to the implications for other states, the conclusions are also significant. First, with important nuances in the various judges’ opinions, the court reiterated the erga omnes nature – meaning towards states as a whole – of the international legal obligations Israel has been held to be violating. Various treaties, including the European Union Association Agreement with Israel, are also potentially in need of review, where Israel has been found to violate ‘essential elements’ with regard to human rights. This will have major implications for bilateral and multilateral agreements.
Can this advisory opinion affect the ongoing conflict?
This advisory opinion is an important precedent, particularly in relation to other occupied territories, such as Ukraine. Now there’s no way Israel’s allies can pretend Israel has been a fair actor, even before the conflict in Gaza broke out.
But advisory opinions are not legally binding. They are meant to provide guidance on legal issues, but they don’t have the same enforceability as a binding decision in a contentious case. And even in those cases, the ICJ doesn’t have its own enforcement mechanism and relies on the cooperation of states. There is no international police force to enforce the court’s decision and tell Israel to get out of Palestine now.
The purpose of advisory opinions is to influence future policy and legislation. If Israel continues to ignore such a clear ICJ advisory opinion, it will further diminish its status under international law and its position within the community of states and the diplomatic world order.
How does this relate to the ongoing genocide case?
The South Africa v. Israel genocide case is a completely different process within the ICJ and should not be confused with this advisory opinion.
There are four ways in which cases and opinions can come to the ICJ. The advisory opinion and the genocide case illustrate two of them. The advisory opinion came in response to a request by General Assembly, while the genocide case was brought by a state – South Africa – alleging that the actions of another state – Israel – constituted violations of the Genocide Convention, the ICJ being the mechanism in charge of resolving the dispute.
This case followed the precedent set by The Gambia v. Myanmar, where the ICJ accepted a case from a state not directly affected by the alleged genocide. The court held that a violation of the Genocide Convention, regardless of where it occurred, is something that can be denounced by any state. South Africa used this reasoning to present its case against Israel, alleging that genocide was being committed against Palestinian people.
While both cases involve violations of human rights and humanitarian law, the advisory opinion is not a treaty-based proceeding. The genocide case is based on the very limited definition of genocide as set out in the Genocide Convention. The ICJ must determine whether Israel’s actions were committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group. And that is difficult – but not impossible – to prove.
What are the other ways of bringing a case to the ICJ?
States can also make a special agreement that they want the ICJ to help them resolve a dispute, even if this compromise is not a clause in a treaty. An example is a seminal dispute between Hungary and Slovakia over damming the Danube River.
States can also accept the ICJ’s compulsory jurisdiction in all contentious disputes. This is crucial. By doing so, states affirm the inviolability of international law and the centrality of the ICJ. To date, 74 out of 193 UN member states have filed such declarations.
States such as Liechtenstein, New Zealand, Norway, Romania and Switzerland are working to increase this number. They are showing other countries why the ICJ is important and how it can help them, and dispel some of the myths about its jurisdiction.
Citizens for Global Solutions supports these efforts through its Legal Alternatives to War (LAW not War) campaign. We help states overcome the political barriers, substantive concerns and any bureaucratic issues that prevent them accepting the ICJ’s compulsory jurisdiction. Our goal is to reach universality before the UN’s hundredth anniversary in 2045. We know it’s ambitious, but we are making progress.
Are there other legal mechanisms currently dealing with the conflict in Gaza?
These disputes often take place in several complementary forums. There’s another case before the International Criminal Court (ICC), which deals with different aspects of international law. While the ICJ deals with disputes between states or advises them on their dynamics, the ICC focuses on individual criminal responsibility for genocide, crimes against humanity, war crimes and the crime of aggression, as defined in the Rome Statute.
The ICC prosecutor is currently investigating alleged war crimes committed in Gaza by both parties to the conflict. This is a different case from the ICJ advisory opinion and the genocide case. This means that there are multiple paths to justice and accountability for violations of international law.
How could the ICJ be improved?
Since it was established in 1945, the ICJ has examined 195 cases. It delivered its first advisory opinion in 1947. It is currently hearing 24 different cases, which gives us an idea of how busy it is today compared to its history.
But there is room for improvement. The ICJ could learn some lessons from the ICC and other international courts and tribunals set up since then.
The requirement that all 15 judges be present for every case – even if it is only a preliminary ruling – hampers its efficiency. The nomination and election of judges could also be improved. There are very strict rules on geographical representation and expertise. But at the end of the day, there is a lot of campaigning and lobbying by states. The ICJ must be objective. Its opinions are legitimate because they don’t come from a vested interest. But this is difficult to maintain when the process of nominating and electing judges is politicised.
Get in touch with Citizens for Global Solutions through its website or Facebook page, and follow @GlobalSolutions and @RAShoot on Twitter.