How the International Court of Justice has drifted to become a politicized tool in the hand of the (United) nations.
Contributed to thinc. by Robbert van de Bovenkamp
In the lapse of nearly two years, the International Court of Justice (hereafter: the Court) has adjudicated two cases that concern the State of Israel. Both judgements in these cases represent an overreaching of the Court’s limits, a departure from its tradition of judicial restraint, and a risky venture into treacherous political waters. In the background of these cases we see how international organizations and groups of nations have become more and more politicized against the interests of Israel. And we see how the Court, in giving its Advisory Opinion in these cases, cooperates on a maximum scale with the UN’s political organ: the General Assembly. This is troubling, as by doing so and not showing any judicial restraint, the Court is dragged on the political stage to become a politicized tool in the hand of these organizations. And this practice sets a dangerous precedent for the General Assembly to even further exploit the Court in the future.
Resolution 77/247 – OPT Advisory Opinion
On December 30th, 2022, the General Assembly adopted resolution 77/247 in which it requested the Court to render an advisory opinion on the following questions:
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?
Resolution 77/247 was sponsored by Algeria, Brunei, Cuba, Egypt, Iraq, Jordan, Lebanon, Mauritania, Namibia, Qatar, Saudi Arabia, Senegal, Tunisia, the Palestinian Authority, Djibouti, Kuwait, Pakistan, Somalia, Venezuela, and Yemen. The majority of these countries do not have diplomatic ties with Israel, and several even refuse to recognize Israel as a legitimate state.
As argued by judge Sebutinde, in her dissenting opinion, “the framing of the questions in resolution 77/247 assumes certain legal and factual conclusions, thereby precluding a thorough and balanced examination of the Israeli-Palestinian conflict’s distinctive historical background.”[1] And aside of the accusations that are at beforehand made in these questions, the Court is asked to look only at the ‘policies and practices of Israel’; it fails to take account of the Palestinian Arabs and their representatives (including non-state actors), as well as those of other Arab States in the Middle East whose interests are intertwined with those of the Palestinian Arabs.
This is striking, but not an entirely new phenomenon. In 2003, in Resolution ES-10/14, the General Assembly requested an Advisory Opinion about the legality of Israel’s anti-terror barrier. As with the recent Advisory Opinion, the General Assembly’s request pronounced Israel guilty in advance and asked the Court to pronounce on the “legal consequences” of Israel’s presumed guilt, and the ICJ readily complied. This led to the ruling of the ICJ in the Wall Advisory Opinion in which, among other things, Israel was denied self-defense against Palestinian terrorism and the ruling implied that Israel must remove its security barrier from Judea and Samaria.
This context brings up the matter of the judicial discretion of the Court and the propriety of the exercise of its judicial function. The Court retains the discretion to decline to give an opinion where there are “compelling reason[s]”[2] for it do so. This retention of the discretion of whether to render an advisory opinion “exists so as to protect the integrity of the Court’s judicial function as the principal judicial organ of the United Nations”.[3]
Looking at the questions posed in resolution 77/247 to it, the Court did not have before it the accurate and reliable information that it needs to render a balanced opinion on those questions. The request is in essence rather political than legal. And more strikingly, as judge Sebutinde points out, the questions of resolution 77/247 were even “coupled with the one-sided narrative in the statements of many participants in these proceedings, some of whom do not even recognize the existence or legitimacy of the State of Israel.”[4] Given this backdrop, the Court had ‘compelling reasons’ to safeguard its integrity as the principal judicial organ of the United Nations, show judicial restraint and to decline to render an opinion on the questions asked in this case. Notwithstanding this, on July 19th 2024, the Court came with a ruling in which it answered the General Assembly’s questions in the so-called Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion (hereinafter the “OPT Opinion”).
Resolution 79/232 – UNWRA Advisory Opinion
Barely five months after the above-discussed OPT Advisory Opinion the General Assembly adopted resolution 79/232. In resolution 79/232 the General Assembly asks the Court:
What are the obligations of Israel, as an occupying Power and as a member of the United Nations, in relation to the presence and activities of the United Nations, including its agencies and bodies, other international organizations and third States, in and in relation to the Occupied Palestinian Territory, including to ensure and facilitate the unhindered provision of urgently needed supplies essential to the survival of the Palestinian civilian population as well as of basic services and humanitarian and development assistance, for the benefit of the Palestinian civilian population, and in support of the Palestinian people’s right to self-determination?”
Again, the Court is asked by the General Assembly to render a one-sided opinion on the legal obligations of one of the parties to the conflict (Israel), thereby shielding the other party to the conflict (Palestine) and its allies from judicial scrutiny of their policies and practices. Whilst completely ignoring or downplaying Israel’s legitimate territorial claims and security concerns, resolution 79/232 neglects to ask the Court to asses the corresponding obligations of the United Nations and third States operating in the occupied Palestinian territories. The framing of the question appears to only single out Israel as the sole belligerent in the Gaza conflict, despite the broader context involving Hamas, Islamic Jihad and other third States.
Moreover, as is stated by Sebutinde in her Separate Opinion, the question of resolution 79/232 to the Court revisits “issues already adjudicated in prior advising opinions” what “constitutes a clear misuse of the Court’s advisory jurisdiction and undermines the sound administration of international justice”.[5] She states that “such repetition lacks legitimate judicial purpose and risks politicizing the Court’s proceedings, thereby diminishing the authority and impartiality of its advisory function.”[6] One example of this is that “many participants in these proceedings [following the questions asked in Resolution 79/232] have asked the Court to find that Israel is bound by its obligations under international human rights law in the occupied Palestinian territories.”[7] However, already in both the Wall Opinion and the OPT Opinion, the Court found that international human rights law is applicable in the occupied Palestinian territories. It was thus unnecessary that the Court would again have to repeat its considerations on these questions. Still, it has done so at length in paragraph 146-160 of the Advisory Opinion.
Not only does the Court revisit matters already addressed in previous advisory opinions, but also the advisory opinion requested by the General Assembly with resolution 79/232 substantially overlaps with cases currently under judicial consideration, particularly regarding the scope, content, and applicability of humanitarian obligations. The two cases in question here are: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) and Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany). Issuing an advisory opinion before the parties in these contentious cases have completed their submissions and before the Court has rendered judgments in the contentious proceedings risks prejudging those issues and risks causing irreparable prejudice to the rights of the respondents in both cases.
Again, as with resolution 77/247 and the OPT Advisory Opinion, the Court had ‘compelling reasons’ to refrain from a ruling in this case. Not only the one-sided formulation of the question, but also the risk of revisiting issues already adjudicated and the overlap with contentious cases currently under judicial consideration should have led to judicial restraint by the Court.
Conclusion
In the words of Sebutinde, to preserve the integrity of its judicial function, the Court must exercise great care in delivering its advisory opinion, ensuring that it remains impartial and does not become entangled in the political dimensions of the matter. Looking at the questions asked by the General Assembly, with both resolution 77/247 and 79/232, the Court was being told what answer it was expected to give to the requesting organ. The General Assembly, which had already set itself up as judge, jury, and executioner, sought only to have the Court confirm its right so to act. In willingly obliging, the Court became, in effect, an accomplice in an transparent attempt to impose compulsory jurisdiction through the advisory back door, and provide to the General Assembly a ‘judicial’ cover for further political pressures. In doing so and by not preserving its judicial discretion, the Court has risked a risky venture into treacherous political waters and has made itself vulnerable to political exploitation.
[1] Dissenting Opinion by Judge Sebutinde in the OPT case, paragraph 1
[2] Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 20, para. 19.
[3] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019 (I), p. 113, para. 64.
[4] Dissenting Opinion by Judge Sebutinde in the OPT case, paragraph 42
[5] Separate Opinion by Judge Sebutinde in UNRWA Case, paragraph 10.
[6] Ibid
[7] Ibid
