The International Court of Justice will begin hearing submissions this morning on the consequences of the Six-Day War, which was fought more than 56 years ago. The hearing is expected to last six days.
A brief history
Responding to threats from its Arab neighbours in 1967, Israel launched a series of pre-emptive attacks. Within less than a week, it had taken territories beyond the ceasefire lines that had been drawn up after military action against the fledgling state 19 years earlier.
The territories were:
the Golan Heights, captured from Syria;
Gaza and the Sinai Peninsula, captured from Egypt; and
the West Bank, including East Jerusalem, which had been annexed by Jordan
in 1950.
Israel withdrew from the Sinai Peninsula in 1982 (apart from the town of Taba which was returned to Egypt in 1989). In 1988, Jordan renounced its claim to the territory it had previously annexed. Israel withdrew its citizens and troops from Gaza in 2005 (although Israeli forces re-entered Gaza last October to take defensive action against Hamas).
The UN request
In December 2022, the United Nations General Assembly voted to ask the International Court of Justice for an advisory opinion on two “questions”. This was the first:
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?
This wording has been treated with derision, and not just in Israel. Critics point out that it assumes answers to the questions that the court is presumably being asked to decide. For example:
Has Israel violated the right of the Palestinian people to self-determination?
If so, how?
Has Israel occupied, settled and annexed territory?
If so, which territory or territories?
Given that the terms have different meanings in international law, have these territories been occupied, settled or annexed?
In what senses are these territories Palestinian, given that there was no state of Palestine in 1967?
If territory has been annexed by both Israel and Jordan, which state has the better claim to it now?
Have measures been taken to alter the composition, character and status of Jerusalem?
If so, do those measures amount to breaches of international law?
Has Israel adopted discriminatory legislation and measures?
If so, are they breaches of international law?
The second question is equally tendentious. It asks:
How do the policies and practices of Israel referred to in [the] paragraph… 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?
Written statements
When an advisory opinion is requested by the UN, “states and international organisations considered likely to be able to furnish information to the court are invited to submit written statements and, in some cases, written comments on those written statements”.
Although these written statements are circulated to other states, they are regarded by the court as strictly confidential. Concerns were expressed last August when the Guardian’s Jerusalem correspondent Bethan McKernan said she had been shown the UK’s 43-page submission. Because she had quoted a “senior Palestinian source” but appeared not to have been briefed by anyone from the Israeli government, it was widely assumed that the UK document had been leaked by the Palestinian side.
McKernan’s report said the UK’s submissions rested on four main arguments:
An advisory opinion would effectively settle Israel’s “bilateral dispute” without the state’s consent.
The court is not equipped to examine a “broad range of complex factual issues concerning the entire history of the parties’ dispute”.
An advisory opinion would conflict with existing agreements between the parties and negotiation frameworks endorsed by the UN.
The request is not appropriate as it asks the court to “assume unlawful conduct on the part of Israel”.
The Guardian reported that the UK’s position was “shared by only a handful of the 57 opinions sent to the court by member states and non-governmental organisations”.
Court rules say the 15 judges may decide that the written statements and supporting documents will be made public on or after the opening of the oral proceedings.
There would be justifiable criticism if the court does not publish all the written submissions on its website, ideally this morning. If it decides not to publish each state’s submissions until that state addresses the court, it should certainly publish the written submissions of states that are not taking part in the oral proceedings as soon as the hearing opens today.
Oral hearings
The court decided last year that it would hear submissions from “the United Nations and its member states, as well as the observer state of Palestine”. In all, 52 states and three international organisations have said they wish to address the court. The UK has been given half an hour on Friday afternoon but its written submissions should carry considerable weight.
Lawyers briefed by the Palestinians have three hours to address the judges this morning. The court had clearly set aside this afternoon for a response by Israel.
However, a timetable published last week indicates that the Israeli government has chosen not to make oral submissions, perhaps because it shares the UK’s reported view that the request for an advisory opinion should not be entertained by the court.
Explaining why Israel would not be taking part in the hearing, the Times of Israel said that “Israel rejects the court’s jurisdiction over its rule in the West Bank, arguing that advisory opinions should not be issued when the essence of the matter is a political and not a legal dispute”.
These proceedings are separate from the provisional measures granted by the International Court of Justice last month. Last Friday, the court rejected a request from South Africa for additional provisional measures.
The case before the International Court of Justice is also separate from the investigation announced by the prosecutor of the International Criminal Court in 2021.
This week’s hearings, which are planned to continue until next Monday, will be live-streamed on the court’s website and on UN Web TV. Sittings begin at 10am local time, 9am UK time.
Comment
The International Court of Justice describes itself as the “principal judicial organ of the United Nations”. And yet the UN is asking it for its advisory opinion. Can it act as an impartial court, objectively deciding disputes between the parties? Or is it taking the role of legal adviser, helping the UN to achieve its objectives consistently with international law?
And how should it regard the dossier of material received from the UN’s General Assembly and Security Council? Should this be treated as the evidence of a party, to be tested like any other evidence? Or should this material be relied on as an authoritative statement of international law because it comes from the court’s sponsoring body?
The court’s statute says it “may” give an advisory opinion if asked. That has been interpreted to mean that it does not have to do so. In practice, though, it always gives an opinion if it finds it has jurisdiction.
Even if the judges can untangle any legal issues from the highly political wording of the UN resolution, they should consider the arguments reportedly put forward by the UK — apparently supported by Israel — and decide whether it would be wise to do so. Will a non-binding opinion from an organ of the United Nations really advance the cause of peace in the region?
We don’t have to look very far to find out. Israel made peace with Egypt and returned the territory captured in 1967. Jordan made peace with Israel and dropped its claim to the territory it had previously annexed. Israel made a unilateral withdrawal from Gaza and the consequences are now being felt — not just in Israel, not just in Gaza, not just on the streets of London but right across the world. States make peace, not courts.
It is likely to be many months before we find out whether the International Court of Justice has the sense to leave well alone.
Update 3pm: the court has now published written submissions made by some of the parties, including Palestine (377 pages) and Israel (five pages).
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