The Pending Israel-Palestine ICJ Advisory Opinion: Threats to Legal Principles and Security

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| Aug 24, 2023

Advisory Opinion

The International Court of Justice (ICJ) is poised to eviscerate the longstanding “land for peace” legal framework for resolving the Israeli-Palestinian conflict, which was established by UN Security Council (UNSC) resolutions and the Oslo Accords. It is the only framework for achieving peace that has been endorsed by Israel and all Arab League member States. Yet the ICJ—at the behest of the UN General Assembly (UNGA)—may soon advise that international law requires Israel to unilaterally and unconditionally withdraw from the disputed Palestinian territories.

Western interests in the case may appear limited to defending Israel, whose current government and policies regarding the territories are controversial. But the western allies in fact have their own additional fundamental national security interests at stake. Unless they take robust action in this case, the ICJ could not only eviscerate the sole agreed framework for achieving Israeli-Palestinian peace but also undercut the inherent rights of States to self-defense and sovereignty, undermine the UNSC’s authority to maintain international peace and security, and subvert the law of armed conflict (LOAC).

Origin and Status of the Case

The UNGA initiated the case by a resolution, passed on December 30, 2022, that requested an ICJ advisory opinion on two questions relating to the legal status and consequences of Israel’s presence in “the Palestinian territory occupied since 1967.” The controversial UN Commission of Inquiry (COI) investigating the Israeli-Palestinian conflict had recommended, in an October 2022 report, that the UNGA request such an opinion.

In its report, the COI set forth “grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law.” The COI argued that the Israeli presence in the West Bank has become illegal as a result of Israel’s construction of settlements and a separation barrier. The COI concluded these developments amount to de facto annexation of occupied territory. The UNGA request to the ICJ appears designed to elicit an advisory opinion echoing that COI conclusion.

The resolution requesting the advisory opinion passed well short of a majority of the UN’s 193 member States (87 voted in favor, 26 against, 53 formally abstained, 27 were non-voting). Key countries joining the United States and Israel in voting against included Australia, Canada, Germany, Italy, and the United Kingdom.

Biden administration officials criticized the UNGA request as “one-sided” and “counterproductive.” They warned it “will only take the parties farther away from the objective of a negotiated two-State solution.” In urging the Biden administration to submit a “strong brief to the ICJ,” and spur allies to do likewise, 35 Members of Congress reminded Secretary of State Antony Blinken of his vow to oppose “actions that seek to target Israel unfairly.”

Interested States will have three opportunities to submit their views. The first round of submissions was filed on July 25. Those States that submitted in the first round will have until October 25 to submit written comments on the written statements made by others in the first round. Oral proceedings are planned for early 2024.

The Court received 57 written statements in the first round, from 54 countries (including the five permanent members of the UNSC and Israel) and three intergovernmental organizations (the African Union, Arab League, and Organization of Islamic Cooperation). Of the submitting States, 34 had voted for the request resolution, ten had voted against, and the rest had formally abstained or not voted. The ICJ is refraining from publishing the written submissions until the oral proceedings.

If the United States and like-minded allies submit a robust set of briefs, they could impact the case’s outcome. Of the fifteen ICJ judges, eight are from countries that either voted against the resolution or abstained: the United States; Australia; Brazil; France; Germany; India; Japan; and Slovakia. While judges do not represent their home countries, and are required to be impartial, their perspectives typically reflect the fundamental values of their home States.

Robust briefs are particularly important because the UNGA resolution framed its questions to the ICJ in a remarkably prejudicial manner. The UNGA’s first question asserts that Israel’s presence in “the Palestinian territory occupied since 1967” has involved “ongoing violation” of a Palestinian right to self-determination, as well as “discriminatory legislation and measures.” It does not ask the Court whether Israeli violations have occurred, but rather presumes that they have.

This post does not enter into the debate about the nature and extent of any such violations. Instead, it focuses on the second of the two UNGA questions, which addresses more novel issues.

The second question asks: “[h]ow 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?” This second question is no less prejudicial than the first. It is designed to box the ICJ into declaring that those violations render Israel’s presence in the disputed territories illegal, that Israel must withdraw unconditionally and immediately, and that the UN and its member States must pressure Israel to do so.

Replacing the “Land for Peace” Framework

An ICJ advisory opinion declaring that Israel’s presence in the territories is illegal and that Israel must withdraw unconditionally (and be pressured to do so) would contradict the LOAC governing belligerent occupation by parties to a conflict. It would also contradict the long-established “land for peace” legal framework for resolving this particular conflict, established by UNSC resolutions and the Oslo Accords. In addition, it raises several important policy concerns.

Legal Analysis

While international law prohibits the permanent acquisition by force of the territory of another State, it does not prohibit an interim occupation, which results from a legal use of force in self-defense, pending resolution of the conflict. The 1907 Hague Regulations and 1949 Fourth Geneva Convention both provide for and regulate such occupations. Neither requires an occupier, whose occupation results from a legal use of force in self-defense, to withdraw before a peace treaty is signed.

Stephen Schwebel, an American who served for two decades as an ICJ judge, observed that under LOAC “[a] state acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense.” “As a condition of its withdrawal from such territory,” said Schwebel, “that state may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defense.”

In 1967, the international community recognized the legality of Israel’s preemptive action against Arab armies poised to attack. Draft resolutions condemning Israel’s actions were resoundingly defeated in both the UNSC and the UNGA.

Following the 1967 War, the UNSC established the “land for peace” legal framework for resolving the conflict. It did so in Resolutions 242 of November 1967 and 338 of October 1973. Resolution 242 called for Israel’s withdrawal “from territories occupied in the recent conflict” only as part of the “establishment of a just and lasting peace” including “respect for and acknowledgment of” Israel’s “right to live in peace . . . free from threats or acts of force.” Resolution 338 affirmed Resolution 242 and made clear the latter is legally binding.

The Oslo I Accord later affirmed the UNSC’s “land for peace” framework. The Palestine Liberation Organization and Israel signed the Accord in 1993 and the UNSC later endorsed it. The Accord affirms the parties’ obligations to enter “negotiations . . . leading to a permanent settlement” based on Resolution 242.

The Accord’s list of issues to be covered by the permanent status negotiations, specifically echoing the terms of Resolution 242, includes “Jerusalem, refugees, settlements, security arrangements, borders.” These topics include the same occupation-related issues about which the UNGA’s prejudicial second question pressures the ICJ to opine.

The 2003 “Road Map for Peace,” developed by the United States, the European Union, Russia and the UN to implement the Oslo Accords, elaborated on the “land for peace” framework. The Road Map, which UNSC Resolution 1515 endorsed, specified that a “two state solution to the Israeli-Palestinian conflict will only be achieved . . . when the Palestinian people have a leadership acting decisively against terror.”

The “land for peace” legal framework thus holds that Israel’s presence in the disputed territories is legal pending a negotiated peace settlement consistent with Resolution 242 and the Accords. It is consistent with the LOAC perspective, described by Schwebel, regarding an occupation which resulted from a legal use of force in self-defense and continues to be necessary for self-defense due to an unresolved conflict characterized by continuing acts of aggression and grave threats.

Alleged LOAC violations in the conduct of the occupation are to be addressed in these contexts. While Israel is under an obligation to halt any such violations, they do not render the occupation itself illegal or otherwise require Israel to withdraw from occupied territory.

The UNGA’s December 30 request to the ICJ reflects theories, designed in response to Israel’s occupation, that an initially legal occupation resulting from a lawful use of force by a State in self-defense can become illegal. The idea is that the means by which Israel has implemented its occupation has changed a legal occupation into an illegal one.

These theories do not take into account the “land for peace” legal framework established by UNSC resolutions and the Oslo Accords. These theories also ignore the fact that the armed conflict that prompted the occupation continues today and that, per LOAC, legal violations in the conduct of an occupation must stop but do not render the occupation itself illegal.

Policy Concerns

The “land for peace” framework was endorsed not only by the Oslo Accords but also by the Egypt-Israel and Jordan-Israel peace treaties. In addition, the Arab Peace Initiative, which has been approved by all Arab League member States, explicitly endorsed the “land for peace” principle.

An ICJ opinion that international law requires Israel to withdraw from the disputed territories without any Palestinian concessions on any of the permanent status issues would make it far more difficult or even impossible for Palestinian leaders to compromise with Israel on such issues. Since Israel will inevitably decline to unilaterally withdraw, the advisory opinion will, in addition to undercutting compromise-minded Palestinians, create yet another Israeli “violation” with which activists can demand anti-Israel boycotts, divestment, and sanctions. Given the practical realities, that is presumably the real objective of the UNGA request’s architects.

That may be par for the course for the biased UNGA, which again in 2022 passed more resolutions condemning Israel (fifteen) than criticizing every other country in the world put together (a total of twelve resolutions). The United States and its allies should help ensure that the UNGA does not succeed in imposing this one-sided and unproductive approach on the ICJ.

Dangers the Case Poses to Legal Principles Protecting Western Security

To support a conclusion that Israel’s occupation has become illegal, the Palestinians and their supporters will seek to build upon several problematic rationales in the ICJ’s 2004 advisory opinion entitled Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The Wall advisory opinion majority concluded that Israel’s construction of a security wall was illegal. It did not address the legality of the occupation itself.

The December 30 advisory opinion request and the COI report that inspired it urge the Court to apply to the occupation itself the Wall advisory opinion rationales, namely that Israel had a legal obligation to immediately and unconditionally dismantle the wall, and that the UN and its member States had a legal obligation to pressure Israel to do so. The following sections analyze those rationales, and the dangers posed to western security interests by their potential application in the pending case.

Threat to Right of Self-Defense

One dangerous ICJ majority assertion in the Wall advisory opinion was that Israel could not claim a right of self-defense when facing attacks by terrorist groups (rather than by national governments) or which originated from territory over which Israel had some control. According to Thomas Buergenthal, the U.S. judge in the Wall advisory proceeding, the ICJ majority took this approach to avoid having to grapple with facts demonstrating how the wall mitigated threats to Israeli security.

In the pending advisory proceeding, the ICJ will again face factual arguments regarding Israeli security, but in the broader context of the fundamental underlying dispute. Israel asserts that its West Bank presence is necessitated by self-defense, until such time as the UNSC and Oslo Accords “land for peace” framework is effectuated and its neighbors act consistently with Israel’s “right to live in peace . . . free from threats or acts of force.”

Israel’s presence in the West Bank has enabled it to limit to a total of five the number of rockets fired into Israel from there since 2005. In contrast, over 20,000 rockets have been launched at Israel from the Gaza Strip since Israel’s withdrawal in 2005. The West Bank, unlike the Gaza Strip, is located very close to Israel’s largest population centers. A Gaza-like rocket threat from the West Bank in the wake of an Israeli withdrawal would put most Israelis in grave danger, and could shut down Israel’s economy and society.

As Judge Buergenthal noted in his Wall advisory opinion dissent, the view that self-defense is unavailable in response to threats posed by terrorist groups is inconsistent with the UN Charter. As Professor Sean Murphy has written, the territorial control logic in the Wall opinion is inconsistent with a U.S. right of self-defense in response to the September 11 attacks, which were “committed by nineteen men resident in the United States who seized aircraft in the United States and crashed them into buildings in the United States.”

Should the pending ICJ advisory proceeding entrench or expand upon the self-defense restrictions in the Wall case, it could undermine the legal defense arguments of western and other nations against future terrorist attacks by non-State actors. The stakes are high.

Over 200,000 terrorist attacks by non-State actors have been perpetrated worldwide since 1970. Many of the largest such attacks occurred in, and were largely organized from, areas over which the attacked nation had control. These attacks include not only those of September 11 but also the November 2015 terrorist attacks that killed 130 civilians in Paris, the August 2016 terrorist attack that killed 86 civilians in the French city of Nice, and the 2017 London Bridge and Manchester Arena terrorist attacks that killed over two dozen British civilians. They also include the Mumbai, Jaipur, and Ahmedabad attacks of 2006 and 2008 that killed hundreds of Indian civilians. The American, French, British and Indian governments will want to make sure that the pending ICJ case does not entrench or expand upon the self-defense restrictions in the Wall case.

Threat to National Sovereignty

The pending ICJ advisory proceedings also threaten to expand upon the dangerous precedent, set by the Wall opinion, that the UNGA and ICJ can use advisory opinions to circumvent the sovereign right of nation States to determine whether to submit to the Court a particular dispute to which they are a party. The United States argued unsuccessfully in the Wall proceedings that for the ICJ to issue an advisory opinion over Israel’s objections would set a precedent threatening “the independence of States” and their ability to “retain sovereign control over whether to submit a dispute to which they are a party to the Court.” Those concerns remain valid, as do similar concerns expressed by Australia, Canada, France, Germany, and the United Kingdom.

Danger to UNSC Authority Regarding International Peace and Security

The pending proceedings also risk undermining the UNSC’s fundamental authority to maintain international peace and security. The UNGA plurality is seeking to use the ICJ to replace the UNSC’s “land for peace” framework with its preferred unconditional withdrawal framework.

Chapter VII of the UN Charter empowers the UNSC, not the UNGA, to “decide what measures shall be taken to maintain or restore international peace and security.” The UNGA does not have the authority to overrule the UNSC. But it is trying to do so indirectly, by pressuring the ICJ to opine that international law is contrary to the legal framework established by the UNSC. The predetermined conclusions in the December 30 resolution are designed to box the ICJ into declaring that the UNGA plurality’s preferred resolution of the Israeli-Palestinian conflict is required by international law.

Fortunately, an ICJ advisory opinion contrary to the “land for peace” framework cannot cancel the UNSC resolutions containing that formulation. But it may politically delegitimize the “land for peace” framework so as to largely negate its value for promoting international peace and security.

The United States and its allies who favor an effective UNSC should urge the ICJ to decline to hear the case, on the grounds that it undermines the UNSC. Washington and its allies made similar jurisdictional arguments in the Wall proceedings, albeit unsuccessfully. However, the UNGA questions relating to the “land for peace” framework are far more central to the UNSC’s mandate and authority than were the questions relating to the security wall.

Risk to LOAC’s Stability

Additionally, an ICJ opinion that Israel’s initially legal occupation has been rendered illegal by Israeli conduct during that occupation could destabilize LOAC by negating one of LOAC’s core principles.

The law of war includes two basic types of restrictions: jus ad bellum (addressing the legality of a State’s resort to force) and jus in bello (governing the conduct of armed conflict once it has commenced). A core LOAC principle is that a party’s compliance with or violation of the jus ad bellum is separate from its jus in bello compliance, and vice versa. For example, the U.S.-led invasion of Iraq in 1991 was clearly legal, including because it was authorized by UNSC Resolution 678. If U.S. troops violated LOAC during the conduct of that invasion or a resulting occupation of Iraq, such breaches would be unlawful but would not render illegal either the invasion or the resulting occupation. This separation of jus ad bellum from jus in bello provides crucial protection during armed conflict. It guarantees that the laws governing the conduct of armed conflict apply to all parties, regardless of the cause of the conflict.

The ICJ advisory opinion that the UNGA resolution is designed to elicit could severely undercut this core LOAC principle. If the ICJ decides that a jus in bello violation can alter the jus ad bellum analysis of the legality of an occupation, it will embolden warfighters arguing the inverse, namely that the justice of their cause, the jus ad bellum reason for their attack, exempts them from the jus in bello rules governing their conduct during the conflict.

Conclusion

The United States and its allies have a number of persuasive arguments they can and should make in the pending ICJ case. Indeed, they may have begun to make some of these arguments in their first round of written submissions.

The United States and its allies can and should urge the ICJ to determine it lacks jurisdiction over the case. They can also call upon the ICJ to exercise its discretionary power to decline to issue an advisory opinion even if determines it does have jurisdiction over the case.

The United States and its allies can also encourage the ICJ to use its authority, described by the Wall majority, to “broaden, interpret and even reformulate the questions put to it.” The ICJ used its authority to narrowly interpret a question posed to it by the General Assembly in its Kosovo advisory opinion, where it reportedly took such an approach in order to calm hostilities and facilitate future negotiations between Kosovo and Serbia.

Finally, the United States and its allies can and should also engage more substantively on the LOAC and other aspects of the case. In doing so, they will want to tread carefully, so as to avoid inadvertently encouraging the Court to address any of the underlying permanent status issues that are for the parties to resolve under the “land for peace” framework. But engage they must, in order to avert an ICJ advisory opinion that otherwise will undercut their own sovereignty and right of self-defense, undermine the UNSC’s authority to maintain international peace and security, subvert LOAC, and demolish the sole agreed formula for Israeli-Palestinian peace.

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Orde F. Kittrie is a law professor at Arizona State University and senior fellow at the Foundation for Defense of Democracies, who previously served as a U.S. State Department attorney.

Bruce Rashkow previously served as the U.S. State Department’s assistant legal adviser for United Nations affairs and as director of the UN Office of Legal Affairs’ General Legal Division.

 

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