Back to the ICJ: Court to hear claims against Israel’s 56-year rule over Palestinians

The UN General Assembly is seeking an advisory opinion from the World Court that Israel’s decades-long control over the West Bank and East Jerusalem is illegal

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

File: Israeli soldiers stand guard while Palestinians and left wing activists protest in the village of Beit Dajan in the West Bank, on June 30, 2023. (Nasser Ishtayeh/Flash90)
File: Israeli soldiers stand guard while Palestinians and left wing activists protest in the village of Beit Dajan in the West Bank, on June 30, 2023. (Nasser Ishtayeh/Flash90)

As international legal pressure continues to be heaped on Israel over its war against Hamas in Gaza, the country will face further scrutiny at the International Court of Justice from February 19 over its 56-year rule over the West Bank.

Following a referral to The Hague by the UN General Assembly in December 2022, the ICJ will hold six days of hearings starting Monday as no less than 52 countries weigh in on Israel’s conduct and practices in the West Bank and East Jerusalem, as well as the Gaza Strip pre-October 7.

However, the ICJ, the UN’s top legal organ, will only be able to issue an advisory opinion since the case was brought as a referral from the UN General Assembly. Israel does not accept that the court has jurisdiction over its control of the West Bank. (In South Africa’s application to the ICJ alleging that Israel is committing genocide in Gaza in the current conflict, the court had jurisdiction because Israel is a party to the Genocide Convention and was therefore obligated to address the claims made against it.)

Advisory opinions have no binding legal ramifications for Israel, so the impact on the ground of any decision against Israel would be negligible. Nevertheless, an opinion that finds fault with Israel’s practices would further ramp up already heavy diplomatic pressure against the country.

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. Jerusalem is therefore not sending a delegation to The Hague to present its counter-arguments.

The International Court of Justice (ICJ) holds public hearings on the request for the indication of provisional measures submitted by South Africa in the case South Africa v. Israel on 11 and 12 January 2024, at the Peace Palace in The Hague, the seat of the Court. (Courtesy: International Court of Justice)

The court previously issued an advisory opinion against Israel, when in 2003, it was asked by the UN General Assembly to rule on the legality of the security barrier Israel erected during the Second Intifada along the Green Line and, in considerable sections of the route, cutting into the West Bank as well.

The court determined in its 2004 decision that the barrier was illegal and that Israel should dismantle the sections built inside the West Bank. Since the ruling was only an advisory opinion and non-binding, it has had very little impact or legal ramifications for Israel, and no sections of the barrier have been torn down.

Nevertheless, the status and prestige of the ICJ, also known as the World Court, means that what transpires in The Hague will have some symbolic importance to Israel’s international and diplomatic standing.

Israel took control of the West Bank and East Jerusalem after defeating the Jordanian army during the 1967 Six Day War, and has maintained its grip on the territories ever since, building and expanding settlements in the region that now includes some 500,000 settlers in the West Bank alone, and approximately 230,000 Israelis living in Jewish neighborhoods in East Jerusalem.

Israeli politicians on the hard right have for many years called for Israeli annexation of the West Bank, including senior government ministers in the current government, while many Likud ministers have repeatedly ruled out a Palestinian state in the territory and have supported settlement expansion.

Under discussion during the hearings will be the UN General Assembly’s request for an advisory opinion as to what might be the “legal consequences” of Israel’s long-term rule in the West Bank and East Jerusalem.

Specifically, the request asks the court about 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.”

Israeli security forces argue with Israeli settlers at the entrance to the Palestinian village of Turmus Ayya in the West Bank on the day that Jewish extremists set fire to homes and vehicles in the town, June 21, 2023. (Yonatan Sindel/Flash90)

Proceedings will begin on Monday, with oral arguments to be made by the State of Palestine, which has been allocated a three-hour slot. Over the course of the week, fifty-two other nations, as well as the Organisation of Islamic Cooperation and the African Union, will give 30-minute oral presentations to the court, starting with South Africa.

A large number of the countries who will be making oral arguments during the hearing are expected to take a hostile stance towards Israel, including Bangladesh, Cuba, Iran, Pakistan and others. Others include Russia, which is currently occupying large swaths of Ukraine as well as two regions of Georgia, and Turkey, which is currently occupying several regions of Syria.

Western nations such as the US, UK, the Netherlands, France and Hungary, among others, will also present oral arguments and may take more moderate approaches on the issue.

The UN General Assembly resolution approving the request for the advisory opinion referred to numerous aspects of Israel’s control of the West Bank, East Jerusalem and its policies towards Gaza. It does not acknowledge the politically complex and disputed nature of the Israeli-Palestinian conflict and the consequences of that reality on the ground.

It expressed “deep concern” over “severe restrictions” on the freedom of movement for Palestinians, as well as over settler violence against Palestinian civilians and what it described as “the disastrous humanitarian situation” in Gaza, pre-dating the current conflict.

The resolution demanded that Israel cease “the forced displacement of civilians,” referencing in particular the displacement of some Bedouin communities; cease “the transfer of its own population into the Occupied Palestinian Territory, including East Jerusalem”; cease all settlement activities; and lift the blockade on Gaza.

Prof. Robbie Sabel, a scholar of international law at Hebrew University, said that the ultimate goal of the request for the advisory opinion was to get a determination from the court that Israel’s rule over the West Bank is illegal, and for a statement on what the consequences should be.

But he noted that the resolution does not include legal arguments, and is instead a collection of political conclusions by the UN General Assembly.

“They have already determined that [Israel has] committed these crimes, they determine [the territories] to be Palestinian territory, when it is disputed,” Sabel said.

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