The ICJ’s Advisory Opinion on the Occupied Palestinian Territory and the Court’s Discretion
On July 19, 2024, the International Court of Justice (ICJ) delivered its advisory opinion (AO) on the Legal Consequences Arising From the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem (OPT AO). The Court responded to two questions put to it by the General Assembly (GA) resolution 77/247 adopted on 30 December 2022. The first question concerned the legal consequences that arise from the occupation and annexation of Palestinian territory since 1967 and the second, how the Israeli policies and practices affect the legal status of occupation and what are the legal consequences that arise for all States and the United Nations.
The Court answered both questions and opined that:
The sustained abuse by Israel of its position as an occupying Power, through annexation and an assertion of permanent control over the Occupied Palestinian Territory and continued frustration of the right of the Palestinian people to self-determination, violates fundamental principles of international law and renders Israel’s presence in the Occupied Palestinian Territory unlawful (OPT AO, para. 261).
The AO was adopted with a considerable majority but, in addition to Judge Sebutinde’s dissent, one can trace nuances and disagreements in the appended individual opinions and declarations.
The AO findings on occupation, use of force, and general international law give rise to many questions. In this post, however, I will deal with the Court’s jurisdiction. I argue that the ICJ should have used its discretion to refuse to render an AO. After discussing the scope of the ICJ’s discretionary power to entertain requests for AOs, I identify and explain the compelling reasons that existed, and which advised against acceding to the GA’s request. I conclude by assessing the effects of the AO.
The ICJ’s Discretion in Rendering AOs
According to Article 65(1) of the ICJ Statute, the Court “may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.”
The use of the term “may” indicates that the Court has discretionary power in the exercise of its advisory jurisdiction, something that has been repeatedly affirmed by the Court in its jurisprudence (OPT AO, para. 30; Wall AO, para. 44; Peace Treaties AO, p. 72).
Before the Court actually entertains a request, it should satisfy itself that it has jurisdiction to give the requested opinion and, secondly, that it is proper to do so. These are different questions. For the first, it needs to establish whether the conditions for the exercise of its advisory jurisdiction have been met; for example, whether there is a legal question, or whether the requesting organ is competent to make the request (see Nuclear Weapons AO). With regard to the second question, the issue is whether any compelling reasons exist to refuse the request (OPT AO, para. 22; Wall AO, para. 13; Chagos AO, para. 54).
I discuss below what such compelling reasons might be and whether they existed in the situation at hand. Before that, however, I make certain observations about the Court’s attitude towards its advisory jurisdiction and discretion which provide the background context to understand my criticism of the current AO.
The Court takes a constitutional approach to its place and role within the UN. On many occasions it has said that as one of the principal organs of the UN and indeed the principal judicial organ it should participate on an equal footing with the other organs in the activities of the UN (OPT AO, para. 30; Chagos AO, para. 65; Certain Expenses AO, p. 155; Peace Treaties AO, p. 71).
The Court also stresses the fact that it is a court of law and, therefore, should act in accordance with its judicial character, the Statute and international law. As a judicial organ, the Court approaches its advisory procedure in a substantially similar way to its contentious procedure. As the Permanent Court of International Justice (PCIJ) said in the Eastern Carelia AO, “The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity” (p. 29).
There is tension between these two roles when it comes to exercising its discretionary power to give an AO and it seems that the Court limits this discretionary power on policy and legal grounds. As a principal organ of the UN and eager to be an equal participant together with the Security Council and GA, the Court readily accedes to their requests for AOs. As the Court said, it should not in principle refuse their requests for AO (OPT AO, para. 30; Chagos AO, para. 65). One can say that the Court feels that it is duty bound to accede to such requests in which case its discretionary power becomes moot. However, in my opinion, the opposite (refusing to accede to such requests) would not imply that the Court is less of a participant or that a hierarchy between UN organs is established. The powers and relations between UN organs are concurrent and complementary although the Court’s powers are legal (Paramilitary Activities, Jurisdiction and Admissibility judgment, para. 95). Also, if the UN Charter and the Statute were to impose cooperation between UN organs, the wording of Article 65 would have been mandatory.
In legal terms, Article 65 of the ICJ Statute endows the Court with full discretionary power, something also supported by its inherent power to decide its own competence. Whether there are reasons advising against acceding to a request for an AO also depends on the circumstances. Because the circumstances change, the reasons can also change. Moreover, if there is a conflict between acceding to a request by the UN political organs and acting as a judicial body, the latter should prevail.
Compelling Reasons
The ICJ can decline to give an AO if there are compelling reasons which affect the integrity of its judicial function (OPT AO, para. 31; Chagos AO, para. 65). The Court has identified a number of such reasons in its jurisprudence but has not indicated whether this list is exhaustive. In the case at hand the Court considered the following six reasons:
(1) the request for an advisory opinion relates to a dispute between two parties, one of which has not consented to the jurisdiction of the Court; (2) the opinion would not assist the General Assembly; (3) the opinion may undermine the Israeli-Palestinian negotiation process; (4) an advisory opinion would be detrimental to the work of the Security Council; (5) the Court does not have sufficient information to enable it to give an advisory opinion; and (6) the questions are formulated in a biased manner (OPT AO, para. 32).
The Court rejected all six reasons. However, Judge Sebutinde has convincingly criticised the Court’s findings in this regard (Sebutinde, paras. 40-51).
I discuss below some of the reasons considered by the Court but also other factors that may have been compelling grounds on which to refuse the request for an AO.
Insufficient Information
Any legal determination is based on facts which are established on the basis of evidence. Thus, possessing knowledge of the facts surrounding a case and ascertaining them on the basis of sufficient evidence, which is carefully assessed, are critical for discharging its judicial function and protecting judicial propriety. If the Court does not have sufficient information or cannot assess it according to expected judicial standards (even if lower compared to contentious proceedings), it will not be able to give full consideration to the question and, therefore, it has reasons to refuse to answer the question (Peace Treaties AO, p. 72; Western Sahara AO, para. 46).
In the Eastern Carelia AO, the PCIJ said:
It appears to the Court that there are other cogent reasons which render it very inexpedient that the Court should attempt to deal with the present question. . . . To answer it would involve the duty of ascertaining what evidence might throw light upon the contentions which have been put forward on this subject by Finland and Russia respectively. . . . The Court would, of course, be at a very great disadvantage in such an enquiry, owing to the fact that Russia refuses to take part in it. It appears now to be very doubtful whether there would be available to the Court materials sufficient to enable it to arrive at any judicial conclusion upon the question of fact. . . . The Court does not say that there is an absolute rule that the request for an advisory opinion may not involve some enquiry as to facts, but, under ordinary circumstances, it is certainly expedient that the facts upon which the opinion of the Court is desired should not be in controversy, and it should not be left to the Court itself to ascertain what they are. The Court is aware of the fact that it is not requested to decide a dispute, but to give an advisory opinion. This circumstance, however, does not essentially modify the above considerations (p. 28).
In the present case, the Court determined that it had sufficient information and for this reason it decided that no compelling reason existed to decline the request (OPT AO, paras. 44-47). The Court relied on the over 50 submissions by States and international organizations, the dossier submitted by the UN Secretary-General and Israel’s written statement. This finding was criticised by Judge Sebutinde in her dissenting opinion (Sebutinde, para. 42).
I agree with Judge Sebutinde’s findings that the provided information was one-sided and failed to take into account the complexity of the situation and the security needs of Israel. Indeed, the Court seems to be aware that it may be criticised for this and tries to justify its approach by stressing the fact that Israel filed a written statement. However, a few pages mainly dealing with jurisdictional matters do not provide sufficient information to assist the Court to assess and cross reference the facts underlying the question compared to the wealth of contrary information. As is also well known, there is no agreement about the facts; for example, whether Gaza was occupied before the October 7, 2023 attacks is debated. For this reason, the Court should have rejected the request because of the compelling reason that it had insufficient information.
Even if the Court’s standard of evidence when determining its jurisdiction is quite low, it should have requested more information when determining the legal questions. It is within the Court’s inherent power to seek all relevant information from all interested parties in order to discharge its judicial function. The Court seems to have affirmed its freedom in this respect in the Certain Expenses AO, where it said:
The rejection of the French amendment does not constitute a directive to the Court to exclude from its consideration the question whether certain expenditures were “decided on in conformity with the Charter”, if the Court finds such consideration appropriate. It is not to be assumed that the General Assembly would thus seek to fetter or hamper the Court in the discharge of its judicial functions; the Court must have full liberty to consider all relevant data available to it in forming an opinion on a question posed to it for an advisory opinion (p. 157).
The Court could also have collected information itself as the PCIJ did on certain occasions (see Keith, p. 190). That said, it is also the responsibility of the requesting organ, in this case the GA, to request that all States provide information, as was the practice with organs of the League of Nations (see Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and Iraq) AO, p. 6-7).
Availing itself of comprehensive evidence and indeed evidence on Israel’s position about the issues dealt with by the AO was also necessitated by the fact that Israel did not give its consent and because advisory proceedings do not follow an adversarial process regarding evidence. This makes the role of the Court even more important.
In sum, for the Court to maintain the propriety of its judicial function and the authoritativeness of its AO, it must have full and balanced information in order to make well founded determinations on factual and legal issues. This requirement corresponds to the Court’s approach to the advisory procedure, which is to a large extent assimilated to the contentious procedure (see ICJ Statute, art. 68). In this case, it seems that the Court has fallen below the judicial expectations regarding the required information both when it acceded to the request and also when it entertained the questions.
The AO Circumvents the Principles of Consent and Equality
Another compelling reason to decline to give an AO is if 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” (OPT AO, para. 34; Chagos AO, para. 85). In this instance, Israel demonstrated its lack of consent by voting against the GA resolution. The Court rejected this reason because the AO concerns the responsibilities of the UN, wider questions of international peace and security, and obligations erga omnes (OPT AO, paras. 33-35).
In her Dissenting Opinion, Judge Sebutinde criticised the Court’s findings because in her view the issues under consideration are in fact bilateral between Israel and Palestine and the questions put to the Court by the GA were not abstract questions (Sebutinde, paras. 46-48). In the same vein, the PCIJ in its Eastern Carelia AO declined to give an answer in Russia’s absence because “answering the question would be substantially equivalent to deciding the dispute between the parties” (p. 29). Although one could say that the reason the PCIJ refused to give an AO in that instance was the fact that Russia was not a member of the League of Nations and did not give its consent to the case before the PCIJ, State consent is behind the PCIJ’s reasoning.
The ICJ has not declined any requests for AOs because of lack of consent. It is true that requiring State consent would affect the Court’s ability to render AOs and would make the AO and contentious procedures identical (Peace Treaties AO, p. 71). However, there are many reasons why State consent should not be undermined in advisory procedures. First, proceeding with an AO when the issue actually involves a bilateral dispute and the advisory procedure effectively acts as a substitute for contentious proceedings affects the distinction between the two processes and circumvents State consent to dispute resolution (Western Sahara AO, paras. 30- 33; Kosovo AO para. 33; Dissenting Opinion of Judge Donoghue in Chagos AO, para. 23). Whether the AO mirrored the bilateral dispute could easily be ascertained by comparing the request and the statements of the parties in many different fora but above all the Oslo Agreements (Western Sahara AO, para. 42).
Second, the Court’s failure to consider Israel’s views undermines the principle of equality of the parties before a court of law. This forms part of judicial propriety and as the Court said, it follows from the good administration of justice (International Labour Organisation Administrative Tribunal AO, paras. 35, 44). Respecting the principle of equality is also necessary due to the Court’s assimilation of advisory and contentious procedures as mentioned above.
Third, the Court should have distinguished AOs which concern internal UN issues, such as administrative matters or the competences of UN organs, and AOs which relate to conflicts or disputes between States, even if UN principles and organs are involved. In the latter case, its AOs may have implications for dispute settlement as will be explained later where State consent is critical.
Fourth and following from the above, the Court should have considered the effect its views might have on the consent of States to its contentious jurisdiction. There are other sub judice cases before the ICJ involving Israel and issues related to those the Court dealt with in this AO may appear in future litigation before the ICJ or other courts. There may also be cases before the International Criminal Court following the recent arrest warrants. If a related issue arises in cases entertained by the ICJ, I doubt that the Court with the same composition will distance itself from its AO and if it does so it will require very fine legal acrobatics. The same can be said in the case of other courts and tribunals. For example, the International Tribunal for the Law of the Sea (ITLOS) Special Chamber adopted the findings of the ICJ’s Chagos AO in its Maldives/Mauritius judgment (see also Lando).
The AO Undermines the Negotiation Process Between Israel and Palestine
Another compelling reason that the ICJ considered but rejected was whether the AO would undermine the negotiation process between Israel and Palestine as laid down by the Oslo Agreements and exacerbate the disagreement between Israelis and Palestinians (OPT AO, paras. 38-40). Judge Sebutinde is critical of the Court’s findings in this respect.
According to Judge Sebutinde, the AO will undermine the negotiating process by addressing the legal obligations of only one party, Israel, whereas the Oslo Agreements established a roadmap and obligations for both parties (Sebutinde, paras. 43-45). I agree with her findings but also add that, in my opinion, the AO will aggravate the dispute, the second point rejected by the Court. By dealing with the obligations of one party and determining that they amount to violations of international law, what will prevent the other party or any other State from using these findings against Israel following the Court’s stamp of approval? The Court, in a rather blasé manner, said “the question of whether the Court’s opinion would have an adverse effect on a negotiation process is a matter of conjecture. The Court cannot speculate about the effects of its opinion” (para 40). It then goes on to cite a similar quote from its Nuclear Weapons AO.
In my opinion, this is quite disingenuous because the question put to the Court in Nuclear Weapons was more open and abstract compared to the case at hand. Moreover, the lack of proper consideration of this issue is surprising. In previous cases the Court at least tried to provide an answer to a similar challenge. For example, in Peace Treaties it said that its AO will facilitate the procedure instituted by the Peace Treaties (p. 71).
More critically though, the Court’s attitude is dangerous because it seems to disregard the implications of its AO on the peaceful settlement of disputes and on peace and security to which it seems to pay lip service. Justice is often presented as blind but it should not also be deaf or practiced in a vacuum or for the gratification of the Court.
The Political Nature of the Request
Although the political nature of the request has never been included in the compelling reasons used so far by the Court to refuse acceding to requests for AOs, in my opinion the discretionary power of the Court and its inherent power to determine its competence can also include this reason, to the extent that it will affect judicial propriety (see also separate opinion of Judge Keith in the Kosovo AO). It is true that the Court has said on many occasions that the fact that a case before it has also political aspects does not prevent it from entertaining the legal aspects of the case (Paramilitary Activities, Jurisdiction and Admissibility judgment, paras. 93, 96; Nuclear Weapons AO, para. 15). This was said in relation to the legal merits of the issues which the Court is called upon to decide.
The Court has said on another occasion that it is not concerned with the motives behind a request for an AO (Admissions AO, p. 61) and in the Certain Expenses AO it said that it “cannot attribute a political character to a request which invites it to undertake an essentially judicial task” (p. 155). The issue here is however different; it is whether, from the facts surrounding the case and the request itself, the requesting body, the GA in this case, had any legitimate interest to obtain an AO on the surrounding legal issues (Fitzmaurice) and whether the request itself is in essence political rather than legal.
In the first place, discussions and voting patterns in the GA are indicative. Of the 193 UN members, 87 voted for the requesting resolution, 26 voted against, 53 abstained, and 27 did not vote. Although its adoption is procedurally valid, the voting patterns demonstrate that the request did not receive overwhelming endorsement.
Second, the request is geared towards solving the political differences within the UN regarding Palestine and Israel or scoring points between UN organs. Is this a legitimate reason to request an AO? Also, how will this preserve the Court’s judicial propriety if the Court is caught in the political antagonism between and among UN organs and States and if the political organs shift their responsibility for their own inability to deal with the situation?
Third, the content of the questions put to the Court indicated that the GA already had a firm view about the law, in particular having recalled its findings in the Wall AO. Was there any legitimate interest then to ask for a further AO? Moreover, the GA is not bound by the AOs and is free to pursue a different course of action to settle the dispute despite the AO. Would this make the request for another AO necessary in order for the GA to discharge its functions?
Fourth, the fact that the GA deals with a certain issue and it is on its agenda does not mean that the Court cannot assess whether the particular request is needed.
Fifth, I have already said that the AO may aggravate the existing dispute, but it may also expand the scope of the dispute to involve other States and processes. How will this help the GA by adding more fuel to the conflict and how will it preserve the Court’s role to contribute to the peaceful settlement of disputes through the law and to maintain international peace and security?
The Court’s response to this charge was quite agnostic. It said that it “cannot substitute its own assessment of the need for such an opinion with that of the organ,” that AOs in principle assist the requesting organ with their responsibilities (without however proving it) and that there is no “compelling reason that should lead it to decline to give its opinion on the ground that such an opinion would not assist the General Assembly in the performance of its functions” (OPT AO, para. 36).
Although the Court does not have review powers, in my opinion, its discretion to furnish an AO and its inherent power to determine its competence would require assessment of whether, on the basis of facts, there was a legitimate interest to request an AO and whether it will help the requesting body. The Court could have considered, for example, whether its Wall AO has assisted the GA in discharging its duties or in settling the Israel-Palestine dispute. As I said previously, justice may be blind but it should not be deaf or practiced in a vacuum.
General Effects of the AO
AOs are not binding on the requesting body or any State (Peace Treaties AO, p. 71). The ICJ has stressed this aspect of AOs in order to provide an AO even if the party concerned has not consented. However, this view does not exactly reflect the actual effect of AOs. AOs are judicial pronouncements and thus authoritative statements of the law. In Eastern Carelia, the PCIJ said that “Answering the question would be substantially equivalent to deciding the dispute between the parties” (p. 29).
What makes them authoritative depends on many factors and certainly judicial propriety is one of them (Lando). AOs also constitute res judicata and their correctness cannot be challenged other than by being disregarded. Yet, even if States disregard the AO, the legal opprobrium will be considerable and will add to the political disapproval. AOs may also be used in other procedures, as the ILTOS example mentioned previously shows.
One can thus say that AOs are quasi-binding (Lando). It is for this reason that the Court should be very cautious when acceding to requests for AOs and when answering the questions posed. In this post I explained the reasons why the ICJ should have used its discretion to refuse to provide an AO in this case. Since the ICJ acceded to the GA’s request and answered the questions having first determined the illegality of Israel’s actions, the effect of the AO will be to aggravate the dispute and undermine any negotiated settlement provided by the Oslo process to which both Israelis and Palestinians agreed. Its contribution in the real world will thus be the opposite to its pretended contribution.
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Nicholas Tsagourias is Professor of International Law at the University of Sheffield, UK.
Photo credit: Velvet