ICJ risks its reputation

Resolving the Middle East conflict requires negotiation — not litigation

The International Court of Justice should have declined the request it received from the United Nations General Assembly at the beginning of last year for an advisory opinion on Israel and the Palestinian territories. By giving its views on a dispute that can be resolved only by negotiation, the world court has put at risk its judicial character and integrity.

The United Nations has, for many years, envisaged a permanent resolution of the Middle East conflict based on negotiations between Israeli and Palestinian representatives working in good faith towards the achievement of a just and sustainable two-state solution. A resolution cannot be imposed from outside, still less by an international court.

And any discussion of Israel’s alleged occupation or annexation of Palestinian territory or its alleged prejudice to the rights of the Arab-Palestinians to self-determination that fails to consider the historical facts and principles of customary international law is unlikely to assist the General Assembly or the Security Council in finding a permanent solution to the conflict.

Nawaf Salam, the court’s president, reads the advisory opinion on 19 July. The vice-president, Julia Sebutinde, sits to his right

Majority opinion

In a majority opinion delivered last Friday afternoon, the court advised the General Assembly that:

• Israel’s continued presence in the occupied Palestinian territory is unlawful;

• Israel must bring this to an end as rapidly as possible;

• Israel must evacuate all settlers from the occupied Palestinian territory;

• Israel must make reparations to all concerned;

• other states must not recognise Israel’s presence in the occupied Palestinian territory and must not help to maintain the situation;

• international organisations must not recognise Israel’s presence in the occupied Palestinian territory; and

• the United Nations should consider how to end Israel’s presence in the occupied Palestinian territory.

Compelling reasons for not giving an opinion

Although the court had the jurisdiction to issue an advisory opinion, there were compelling reasons for not doing so.

The court did not have accurate, balanced and reliable information enabling it to reach judicial decisions on disputed questions of fact. Most of those taking part in the proceedings had presented the court with a one-sided narrative of the conflict that misrepresented its legal, cultural, historical and political context. By imposing obligations on Israel while disregarding its legitimate security concerns and the obligations of its Arab neighbours, the court’s advisory opinion is likely to exacerbate rather than de-escalate tensions in the Middle East.

Circumventing the Oslo accords

In addressing the legal obligations of only one party and ignoring the rights and obligations of both sides in the current negotiations — which the parties reaffirmed last year and which exclude recourse to the international court — the judges were circumventing the existing negotiation framework, based on the Oslo accords of 1993 and 1995. These are binding international agreements signed by Israel and Palestinian representatives that are intended to serve as an irreversible mechanism for reaching a compromise solution acceptable to both parties.

The court has previously ruled that it should not give an advisory opinion where this “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”. The argument that the rights claimed by the Palestinians are “of interest to the international community” does not allow the court to intervene without the consent of both sides in what is essentially a bilateral dispute.

Shortcomings in the advisory opinion

The court has accepted the assumptions made by the 87 UN member states that voted to request an advisory opinion — less than half its membership.

These were:

• that Israel’s occupation, including settlements and annexation of Palestinian territories occupied since 1967, is illegal as such;

• that Israel is responsible for an “ongoing violation… of the right of the Palestinian people to self-determination”;

• that Israel’s policies and practices are deliberately and necessarily “aimed at altering the demographic composition, character and status of… Jerusalem”; and

• that Israel’s practices and policies are inherently discriminatory and violate important rules of international humanitarian law and international human rights law.

Since the court’s opinion was based on this one-sided narrative, its conclusions should have come as no surprise. The more difficult question for the judges was how to answer the second question posed by the General Assembly:

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?

Timeline

Most states that took part in proceedings at The Hague called for “an immediate, total and unconditional” withdrawal by Israel. Given that the judges made no mention of Israel’s security concerns, the court’s advice — intended to “bring to an end as rapidly as possible the unlawful presence of Israel in the occupied Palestinian territory” — is seen as supporting in full the demand made by the Palestinians and their supporters.

An immediate withdrawal is not only impracticable. It is also is contrary to what Israel and Palestine had previously agreed under the Oslo accords and to the Security Council’s resolutions 242 of 1967 and 338 of 1973. Resolution 242 effectively makes withdrawal conditional on an end to belligerency and 338 calls on the parties to implement 242.

It’s not just the United Nations that has supported implementation of these resolutions. The court itself, in a previous advisory opinion on these issues delivered 20 years ago this month, called for a negotiated solution to the outstanding problems.

Threats

What sets this conflict apart from all others in which the court has called for an immediate end to occupation is the security threats posed to the Jewish people and State of Israel, both from the disputed territories and from Israel’s adversaries in the neighbourhood and beyond.

Nobody doubts that there are states and other groups that have openly expressed a desire to see the State of Israel wiped off the face of the earth. So any withdrawal must be accompanied by effective security guarantees from the Palestinian side. Israel withdrew from Gaza in 2005 without such guarantees and the results have proved to be disastrous.

The court has also failed to consider the security situation in the West Bank. A unilateral withdrawal would lead to a power vacuum, jeopardising any Israeli citizens who might be left behind.

Sovereignty

Another issue not considered by the court is that Israel has its own claims to sovereignty over parts of what the international community regards as occupied Palestinian territory. As a result, areas where there was a predominantly Jewish presence before 1948 — for example, Gush Etzion and the Jewish quarter in the old city of Jerusalem — may have a different legal status from areas where there was no Jewish settlement.

Reparations

The court said that Israel must “provide full reparation for the damage caused by its internationally wrongful acts”. That includes returning land, evicting settlers, dismantling the security barrier and allowing displaced Palestinians to return. Failing that, said the court, Israel should pay compensation.

This part of the opinion is based on past cases where colonisers plundered a country’s natural resources. But Israel is not a coloniser. It was Britain that originally held the mandate for the territory that is now Israel. Mandatory Palestine extended to Gaza, the west bank of the River Jordan, what is now the Kingdom of Jordan and beyond.

And the claim of the Jewish people to be the indigenous people of the land is based on continuous historical and cultural ties that existed long before the Balfour declaration of 1917, the British mandate of 1922 or the establishment of Israel as an independent state in 1948.

The Jews’ claim to this territory dates back to the ancient kingdom of Israel 3,000 years ago. Contrary to popular opinion, available evidence shows that the Jewish people lived in what is now Israel as a cohesive national group —with a well-established culture, religion and national identity — as early as 1200 BCE. They maintained a physical presence through the centuries, despite the devastating impacts of conquests and their dispersion into exile.

In any event, decolonisation in other countries has not been accompanied by reparations.

Consent of states

It is a fundamental principle of international law that UN institutions —including the International Court of Justice — require the explicit consent of the states involved to mediate disputes between states or between states and other entities.

The United Nations operates primarily on the principle of state sovereignty and cannot normally impose resolutions without the agreement of the state concerned. But the court’s advice circumvents state consent by giving a judicial opinion on matters that are clearly reserved for the UN and bilateral negotiations.

Equality

The United Nations charter proclaims “the sovereign equality of all its members”. And yet the UN has not applied international law equally to other regions that are regarded as occupied, such as Crimea (occupied by Russia), Western Sahara (occupied by Morocco) or Northern Cyprus (occupied by Türkiye). The General Assembly’s questions and the court’s answers ignore or downplay Israel’s existing territorial and sovereignty rights.

Not all UN resolutions create binding legal obligations. They serve as proof of customary international law only if they represent widespread state practices and the collective belief that such practices are legally required. For example, General Assembly resolution 194 of 1948, which is said to give Palestinian refugees a “right of return”, was no more than an expression of policy.

Borders

Whether Israel is occupying what is now claimed to be Palestinian territory cannot be decided without first establishing where Israel’s borders lie. The court received no evidence on this. It cannot simply accept Palestinian assertions or UN assumptions. It did not have enough evidence even to make even an educated guess.

For more than a century, the sovereign legal title over the West Bank and the Gaza Strip has been in abeyance — undecided. This has been the position under international law since the end of World War I, when Turkey, as the successor to the Ottoman Empire — ceded sovereignty of the areas outside its current borders. No agreement, instrument, judgment, opinion or legally binding event has changed this status since then.

Uti possidetis juris

The principle of uti possidetis juris — “as you possess under law” — operates to transform colonial and administrative boundaries that exist at the birth of a new state into national borders. That suggests Israel has territorial sovereignty over all the disputed areas of Jerusalem, the West Bank, and Gaza, except those territories that Israel has voluntarily given up since 1948.

Israel’s declaration of independence that year was followed by attacks from five Arab states. Armistice agreements were signed between Israel and its neighbours in 1949. These were respected, with minor adjustments, until 1967. But the implication that the 1949 armistice lines became Israel’s legal international borders is difficult to square with the doctrine of uti possidetis juris.

That would amount to approving the use of aggressive force by foreign states against the territorial integrity of the sovereign State of Israel. International law prohibits the use of force to acquire territory.

Self-determination

While all people have the right to self-determination, that right cannot be considered in isolation. If the court is asked to examine the policies and practices of one of the parties to a dispute while ignoring those of other parties, it cannot arrive at a balanced view that is in keeping with its judicial function and character.

Security

Although the General Assembly’s questions were aimed at prompting the court to recommend an “immediate end to Israel’s occupation” and an “immediate and unconditional withdrawal” from the occupied Palestinian territories, the issue is more nuanced.

Israel and the Palestinians need to move in tandem to secure the necessary conditions for Israel to withdraw from Arab-occupied territories and for the Palestinians to provide the assurances and conditions that would allow Israel to feel secure in so doing.

A balanced advisory opinion would inevitably need to examine both these conditions, especially given the attack by Hamas on 7 October 2023 and the ensuing war — a matter that is now under consideration by the court.

In 1967, Israel assumed control over the West Bank, the Gaza Strip and Jerusalem in response to a clear and present threat from a group of Arab states that were intent on annihilating the Jewish state. The legitimacy of Israel’s control of these territories at that time was generally uncontested because it was accepted that Israel had exercised its right to self-defence.

It’s not clear when the court thinks this justification came to an end. There is no rule of customary international law that says that a lawfully created occupation may subsequently become illegal on account of passage of time.

And there is no proof that Israeli citizens were forced by the Israeli government to move into the contested areas. It is indisputable that Israel’s continued presence in these areas is in large part due to genuine security concerns and because of its own sovereignty claims to those territories.

Negotiations

Israel is not to blame for the decades-long impasse. Final status issues, including permanent borders of a prospective Palestinian state, the administration of Jerusalem and the return of refugees, are amongst the issues that the parties to the conflict agreed would be decided through negotiation.

Seeking or obtaining unilateral recognition of Palestinian statehood or independence within the territory of a sovereign state breaches the Oslo accords and can only exacerbate the conflict.

The big reveal

Readers who have kept with me this far may have been surprised to read a rather more opinionated piece than I would normally write. So it’s time to come clean: everything I have written so far is taken from the 36-page dissenting opinion of Julia Sebutinde, the court’s second most senior judge. Most of it is summarised or simplified, which is my excuse for not troubling the reader with quotation marks. To make it easier for readers to check the accuracy of my summary, I have tried to follow the structure of Sebutinde’s dissent.

Julia Sebutinde

Sebutinde, 70, comes from Uganda. Born in Entebbe, she was educated in Kampala and Edinburgh. She has served as a judge in Uganda and the Special Court for Sierra Leone. Sebutinde was re-elected to the court in February for a second nine-year term. At the same time, she became the court’s vice-president.

As a judge, she is fiercely independent. The Ugandan government said in January that a ruling she had just given in a related case “does not represent the government of Uganda’s position” — which rather suggests that Uganda expected Sebutinde to put her country’s interests ahead of her judicial oath. She complained last Friday that her colleagues on the court had not given her enough time to “provide a comprehensive analysis of every aspect of the advisory opinion that I find objectionable”.

Given the approach taken by the General Assembly and other UN organs in recent years, it is remarkable to find a judge at the UN court with such a clear grasp of what international law can and cannot achieve.

I am not saying I necessarily agree with every word Sebutinde has written. International law is not an exact science and there are always competing views. But I don’t believe Sebutinde’s well-argued opinion should be dismissed merely because she dissented.

And she was not alone. Judges Tomka, Abraham and Aurescu were also “not convinced that Israel’s continued presence in the occupied Palestinian territory is unlawful nor that… Israel is under an obligation to bring to an end its unlawful presence in the occupied Palestinian territory as rapidly as possible”.

The three judges said:

There is no legal connection whatsoever between the assertion (which is correct per se) that the Palestinian people should be able to exercise its right to self-determination on the whole of the occupied Palestinian territory and the extension of the “illegality” of the occupation (which as such, as shown in this joint opinion, has no legal basis) to all various parts of this territory. In reality, this discrepancy only underscores the fundamental flaw that taints the entire reasoning…

It is regrettable that the [majority] opinion, instead of taking into account the legitimate rights and interests of all parties involved, chose to portray the facts in an incomplete and one-sided manner, drawing an implicit parallel between the Israeli-Palestinian conflict and the two situations on which the court has previously been asked to provide an opinion (Namibia and Chagos), from which it, however, radically differs…

We therefore express our concern that the current opinion will hardly serve the objective of achieving the “two-state solution”, thus allowing for the peaceful coexistence of the Israeli and Palestinian peoples.

Others shared these judges’ concerns. Writing in the Telegraph yesterday, the barrister and campaigner Natasha Hausdorff said the court’s majority opinion was:

a further nail in the coffin of the standing of the court and an unsurprising continuation of the lawfare campaign against Israel through the politicisation of legal institutions.

It also trashes the political framework established in the 1990s by the Oslo accords and endorsed by the international community that seeks resolution through a bilateral negotiated final status agreement.

Indeed, by pursuing this pseudo-legal campaign at the International Court of Justice, the Palestinian Authority has engaged in a further flagrant violation of the very international agreement which created it in 1994. Agreements endorsed by the international community have been made meaningless.

Dissenting opinions

Dissenting opinions do not always remain the minority view. Readers may have noticed that I expressed some sympathy for the position Judge Eicke took on a climate-change ruling at the European Court of Human Rights in April.

And who can forget Lord Atkin’s principled dissent in Liversidge v Anderson:

I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister…

I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’”

We don’t know how much support Sebutinde’s dissent will pick up. But we can be entirely confident that the court’s majority opinion will not bring peace to the Middle East.