Advisory Opinion 2.0: The Israeli-Palestinian Conflict Returns to The Hague
The United Nations General Assembly Fourth Committee, also known as the Special Political and Decolonization Committee, addresses a range of issues, including matters relating to the Israeli-Palestinian conflict. The committee’s latest resolution, which the UN General Assembly is likely to adopt, requests that the International Court of Justice (ICJ) provide an advisory opinion on the following matters:
(a) 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?
(b) How do the policies and practices of Israel referred to in paragraph 18 (a) 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?
In this post, we examine the possible future implications of the advisory opinion, focusing on the situation of Israel and the West Bank. In so doing, we consider what can be learned from the ICJ’s previous 2004 advisory opinion on the construction of a wall in the Palestinian territories, the acceptance of Palestine as a State Party to the Rome Statute and the International Criminal Court (ICC), and the case of Palestine vs. the United States that is also before the ICJ.
The 2004 Advisory Opinion
The 2004 advisory opinion focused on the construction of a separation wall in the West Bank. The ICJ concluded that the construction of the wall violated numerous international norms, including the Palestinians’ right to self-determination as it might lead to a risk of de facto annexation of the territory. The ICJ noted also the erga omnes character of human rights obligations and stated that the international community should not cooperate with actions regarding the wall (given the rule of non-recognition, codified in article 41 to the Articles on State Responsibility for Internationally Wrongful Acts). The ICJ stated that Israel was required to cease its illegal actions and provide a remedy for the violations inflicted.
From the perspective of statehood, the ICJ did not explicitly use this term, and even stressed the need for “a negotiated solution to the outstanding problems and the establishment of a Palestinian State.” Thus, in 2004, the ICJ was yet to consider Palestine as a State.
The ICC’s Decision
A few years after the advisory opinion, came two requests by Palestine to join the ICC, the first on January 22, 2009, and the second on January 1, 2015. Regarding the first request, the ICC prosecutor found that Palestine did not meet the threshold conditions of Article 12(3) of the Rome Statute because it was not clear whether the Palestinian Authority is a State under international law. The ICC based this decision primarily on the fact that Palestine was not a member State of the United Nations.
On September 23, 2011, the UN General Assembly upgraded the status of the Palestinian Authority to that of a non-member State. This was one of the main reasons the ICC prosecutor accepted the second Palestinian request for the ICC to apply its jurisdiction to actions conducted in its territory after June 13, 2014.
When accepting the Palestinian request in 2015, the prosecutor argued that the assessment of Palestine’s statehood is irrelevant, notwithstanding that Palestine can qualify as State for the purpose of the Rome Statute, and probably also as a principal matter. Alongside other sources, this position was based upon the ICJ’s 2004 advisory opinion. The position was repeated in Professor William Schabas’ amicus curiae, as well as in the observations of the International Commission of Jurists.
The Pre-Trial Chamber accepted that the categorization of Palestine as a State for the purposes of the Rome Statute “does not, however, require a determination as to whether that entity fulfils the prerequisites of statehood under general international law,” mentioning that this question is complex and political by nature. In his dissenting opinion, Judge Kovács criticized the court for “Refusing to work with rules and established notions of international law,” then analyzed the question of statehood from the perspective of the Montevideo criteria. Professor Malcolm Shaw’s amicus curiae supported this position. Yet, Judge Kovács still agreed that “Palestine is a State Party, despite its current and perhaps peculiar international legal situation.”
While recognition by other States is not legally required as part of the Montevideo criteria, it nevertheless has a role in determining statehood. This is because the lack of recognition renders the ability to function as a State difficult (e.g., it is difficult to establish international relations in relevant fields and join international organizations, to attract investments, and to become a legitimate partner on the international stage). Recognition is also important to pursue domestic policy when it has an international dimension. In the case of Palestine and the ICC, this is an ad hoc recognition. At the same time, however, it might impact the perception of other international courts, including the ICJ’s 2.0 advisory opinion. Professor Eyal Benvenisti mentioned this in his amicus curiae observations.
In the evolution of the question of Palestine’s statehood, the ICC used some of the findings of the 2004 advisory opinion, while pushing forward the international discourse on the issue, even if in a somewhat indirect way. Now, this jurisprudence can (and probably will) weigh in the direct questions of statehood to be examined before the ICJ.
Palestine’s Claim Against the United States
Palestine has initiated proceedings against the United States as a result of the relocation of the U.S. embassy to Jerusalem. Palestine alleges a breach of the Vienna Convention on Diplomatic Relations (VCDR), as the treaty “requires the sending State to establish a diplomatic mission ‘in the receiving State’ to perform its functions and demands that the diplomatic mission performs its functions while respecting the rule of law, especially international law.”
This is the first case brought by Palestine to the ICJ, after receiving its non-State member status in the 2012 General Assembly resolution, which promotes the vision of Palestine as “an independent, sovereign, democratic, contiguous and viable State.”
The preliminary issue before the ICJ is admissibility and the Court’s jurisdiction to hear the case: a “test” to Palestine’s status. In accordance with Article 34 of the ICJ Statute, “only states may be parties in cases before the Court.” Thus, the ICJ must determine the issue of statehood in order to continue with these proceedings.
There are concerns that these proceedings will not continue, however, due to the United States’ lack of cooperation. The United States does not recognize that it has responsibilities under the treaty towards Palestine, and it has also withdrawn from the Optional Protocol of the VCDR.
The four requirements for statehood are stipulated in the 1933 Montevideo Convention: permanent population, defined territory, effective government and capacity to enter into relations with other States. Palestine is yet to fulfil many of these criteria due to the predominance of Israel in the West bank. Still, the ICJ might follow the trend in recent decades to attribute growing importance to the issue of recognition. It might, therefore, take note of the fact that 138 States recognized Palestine as a State, and that Palestine has joined international organizations, most notably the United Nations.
The Possible Future Influence of the 2.0 Advisory Opinion
In light of the past proceedings before international tribunals regarding the question of Palestine’s statehood, we believe that the forthcoming advisory opinion will become a crucial part of any future discussion on the issue.
Now, we turn to consider the wider mandate given to the ICJ to address this issue. On one hand, the Court could retain its original position, expressed in the 2004 advisory opinion, and avoid addressing the statehood issue by “just” analyzing Palestine’s legal status through the prism of belligerent occupation. This might be an erroneous stance for the ICJ to take, given the significant developments since 2004 in the context of the Montevideo criteria, as well as Palestine’s recognition as a State by other States and international organizations.
On the other hand, the analysis of the “legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination” is heavily connected to statehood. This might incentivize the ICJ to engage with this issue and promote a better understanding of Palestine’s legal status.
Notwithstanding the ICJ’s conclusions, the 2.0 advisory opinion will have consequences for further international proceedings. A clearer statement by the ICJ can provide guidance on the legal position, and also support the understanding that Palestine is a State, or that it is in an advanced point in the process of becoming one.
In the context of Palestine’s case against the United States, or in the process of the 2.0 advisory opinion, it seems that resolving the question of Palestine’s statehood is inevitable. The ICJ’s conclusion in the former case will most probably play a major role in the advisory proceedings. It will also play a role more generally in the resolution of the dispute on the status of Jerusalem as part of Israel, as well as regarding the West Bank.
The mandate that the Special Political and Decolonization Committee suggests is very wide. As long as the General Assembly maintains it, the ICJ’s advisory opinion 2.0 should provide important clarification regarding Palestine’s statehood. We argue that a clear statement from the ICJ will promote international coherency and provide a better setting for international dealings with Palestine.
Dr. Tal Mimran is an adjunct lecturer at the Hebrew University of Jerusalem and at the Zefat Academic College. He is the Academic Coordinator of the International Law Forum of the Hebrew University, and the Research Director at the Federmann Cyber Security Research Center in the Law Faculty of the Hebrew University.
Lior Weinstein is a Master‘s student of international law (LLM) at the Hebrew University, Jerusalem and a Researcher at the Tachilit Policy Center in the fields of Law and Technology and International Law.
Photo credit: שי קנדלר via Wikimedia Commons