International Court of Justice to consider legality of occupation
[10 January 2023] – On 30 December 2022, the UN General Assembly voted in favour of submitting a request for an advisory opinion from the International Court of Justice (ICJ) on the following questions relating to Israel's 55-year occupation of Palestinian territory:
- 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?
Decisions of the ICJ are legally binding in cases where the countries concerned have accepted the Court's jurisdiction. In situations where a country, such as Israel, does not accept the Court's jurisdiction, it can nevertheless provide an advisory opinion if requested by, inter alia, the UN Security Council or General Assembly. While an advisory opinion does not bind the parties, it is authoritative and its impact will depend on how it is adopted in various countries and among public opinion.
In 2004 the ICJ issued its first advisory opinion relating to the Israeli/Palestinian conflict on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The opinion confirmed that, inter alia, Israel is an occupying power in the West Bank (including East Jerusalem) and Gaza; the Fourth Geneva Convention applies in full to this territory; and all Israeli settlement construction in this territory is illegal. The UN General Assembly vote requesting the first advisory opinion was passed: 90 votes in favour; 8 against (Australia, Ethiopia, Israel, Marshall Islands, Micronesia, Nauru, Palau, United States), with 74 abstentions.
In December 2022 the UN General Assembly vote requesting a second advisory opinion relating to the Israeli/Palestinian conflict was passed: 87 votes in favour, 26 against (Albania, Australia, Austria, Canada, Costa Rica, Croatia, Czechia, Democratic Republic of Congo, Estonia, Germany, Guatemala, Hungary, Israel, Italy, Kenya, Liberia, Lithuania, Marshall Islands, Micronesia, Nauru, Palau, Papua New Guinea, Romania, Togo, United Kingdom and United States), with 53 abstentions.
The ICJ is the principal judicial organ of the UN. It was established in the aftermath of World War Two by the Charter of the United Nations. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council.
At a time of war in Europe, it is of concern that 26 countries voted to oppose legal accountability for the annexation of territory and forcible transfer of civilians, including children, out of occupied territory - and in so doing, diminish their own standing in a rules-based order. With an extreme right-wing government now in power in Israel and no political initiatives to resolve the conflict in play - blocking legal accountability is creating a dangerous vacuum while eroding confidence in a genuine rules-based order.