This article appears in the Jerusalem Post, 23 November 2022
On November 11 a UN
Special Committee voted in favour of requesting the International Court of
Justice (ICJ) to provide an advisory opinion about whether Israel’s 55-year
occupation of the West Bank and East Jerusalem constitutes de facto annexation.
The motion was supported
by 98 countries and opposed by 17, while 52 abstained. The Palestinian foreign minister
Riyad al-Malki, jumping the gun, declared: “This decision opens a new era in
which Israel will be called to account.”
In fact, the next step is for the committee’s resolution to be debated by
the UN General Assembly, and only if the voting figures remain similar and the
motion is passed will it move to the ICJ in The Hague. The court could then take
months – possibly years – to draft an advisory opinion.
It is pertinent to
question the value, and indeed the objectivity, of opinions provided by the
ICJ. Israel has historically faced an
in-built majority against it within the organs of the UN. Critics of the ICJ have always maintained that
its jurists favor the interests of the states that nominate them. The current membership includes jurists from
Lebanon, Somalia, Uganda, Brazil and Russia.
In March 2020 the ICJ
submitted observations in support of the International Criminal Court’s
jurisdiction over Palestine which, the ICJ determined, comprises the West Bank,
including East Jerusalem, and Gaza. It
further opined that “Palestine is a State under international law…The
decades-long belligerent occupation of Palestine…has no decisive legal effect
on the validity of its claim to sovereignty and statehood.” However Drake University, in its paper “The
Legal Status of Palestine” concludes: “Palestine
is an autonomous entity, not a state… Palestine cannot legally be considered a
state under international law.”
In 2004 the UN General
Assembly requested an opinion from the court about Israel’s security barrier in
the West Bank and East Jerusalem. The
ICJ determined that the barrier was illegal. One international law journal declared: “the
context overtook the law in the production of the opinion, and has thereby
distorted the result. As a consequence, the ICJ has done significant damage to
its credibility and to the aspects of international law traversed in the opinion.”
There is, in short, a
certain lack of confidence in the impartiality of determinations by the
ICJ. If the ICJ is indeed going to be
asked to give a judicial opinion on a matter as fundamental as the legal status
of the West Bank and East Jerusalem, it would not be unreasonable for Israel to
request the right to argue its case before the court, and for its arguments be
given full weight in any advisory opinion.
It is not satisfactory for Israel’s case to be determined behind closed
doors by jurists some of whom do not enjoy the confidence of those being
adjudged. The issues the ICJ may soon be
considering are too important to be determined by a mechanism that does not
command universal confidence as to its objectivity.
The historical, political and legal issues are extremely complex. An Israeli take on them was set out in convincing detail in a recent study by Professor Abraham Sion which he called: “To whom was the promised land promised?”
He submitted the entire legal process leading
to the establishment of the State of Israel to meticulous forensic examination,
and he demonstrates beyond any doubt that judicial rulings from the UN, the EU,
the ICJ and elsewhere have often been at odds with a scrupulous interpretation
of their legal basis. Over the past few
decades international bodies have reached a consensus that the West Bank and
East Jerusalem are Palestinian territory, and that Israeli towns and cities in
Judea and Samaria are illegal. Sion
uncovers the solid legal building blocks that have been ignored or overlooked
and that prove different.
In short, he demonstrates with chapter and
verse that the almost universally accepted consensus on Israel’s legal position
regarding the West Bank, settlements and Jerusalem is legally flawed.
In undertaking his scrupulous legal analysis, Sion’s
original purpose was to ascertain who owned the legal right to the territory of
Mandatory Palestine under international law.
He identified the two competitors as the Arab nation on the one hand and
the Jewish people on the other. Concerned
solely with the legal position, and not with political or related issues, he set
out to establish the legal rights under international law of both parties. Sion
demonstrates that in concluding that Israel is illegally occupying territory,
international bodies never refer to the treaties that shaped the legal structure
of the Middle East. He shows that the
rights derived from those binding international commitments were still valid
when Israel occupied the West Bank.
Sion is not alone in reaching conclusions like
these, but of course they have never been tested openly in any international
judicial forum. If in due course the UN
General Assembly asks the ICJ for an opinion, how could the court possibly
render a valid legal determination without having the issues raised by Sion and
many others argued before it?
On the very day that the
UN committee voted to appeal to the ICJ for an opinion –Thursday, November 11 –
the ICJ began public hearings in The Hague in a long-running dispute between
Venezuela and the former British colony of Guyana on the issue of the border
between them. Each party is presenting
its case to the court in preliminary hearings scheduled to last until November
22. The proceedings are not only open to
the public, but they are being videoed and publicized widely on social media.
The precedent has been
set. Any judicial consideration by the
ICJ of the Israel-Palestinian boundary dispute requires no less. It is unacceptable for the ICJ to deliver an
opinion on this seminal issue reached in private and without the benefit of representations.
If the ICJ agrees to proceed, the
parties must be permitted to present their case to the court in sessions open
to the public. Moreover, in the interests of fairness, the members of the court
selected to consider the issue must be acceptable by all the parties concerned as
truly objective and unbiased.
https://www.eurasiareview.com/02122022-wheres-the-justice-in-an-icj-opinion-oped/
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