UNGA Requests ICJ Advisory Opinion
On December 30, 2022, the UN General Assembly adopted resolution 77/247 titled Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem. This is an annual one-sided resolution against Israel which ignores Palestinian terrorism and strips Israel of its inherent right to self-defense by classifying all of Israel’s defensive measures as international law violations. Additionally, it refers to the Temple Mount in Jerusalem only by its Islamic name, “Haram al-Sharif.” For more information about the anti-Israel resolutions adopted by the UNGA in 2022 and in general, see 2022 UNGA Resolutions on Israel vs. Rest of the World and the UN Watch Database.
In 2022, the Israeli practices resolution also included a request for an advisory opinion from the UN’s International Court of Justice (“ICJ”) on the “legal consequences” and “legal status” of Israel’s “prolonged occupation.”
The insertion of this request for an ICJ advisory opinion was a direct consequence of the September 2022 report to the UNGA by the UNHRC’s ongoing Commission of Inquiry on Israel headed by Navi Pillay. In paragraph 75 of that report, the Pillay Commission found that “there are reasonable grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law owing to its permanence and to actions undertaken by Israel to annex parts of the land de facto and de jure.” The Commission then recommended in paragraph 92 that the General Assembly “urgently request an advisory opinion from the International Court of Justice” on the exact issues delineated in resolution 77/247 on Israeli practices affecting the human rights of the Palestinian people.
Excerpt from UNGA Resolution 77/247:
Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following questions, considering the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, and the advisory opinion of the Court of 9 July 2004:
(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?
Sponsors Include Algeria, Cuba, Iraq, Qatar, Venezuela
The main sponsors of the resolution were: Algeria, Brunei, Cuba, Egypt, Iraq, Jordan, Lebanon, Mauritania, Namibia, Qatar, Saudi Arabia, Senegal, Tunisia, Palestine. Additional countries joined as co-sponsors, including Djibouti, Kuwait, Pakistan, Somalia, Venezuela, and Yemen.
Major Democracies Oppose Request
The resolution was adopted by a vote of 87 to 26 with 53 abstentions and 27 non-voting, meaning countries that did not cast votes. Thus, fewer than half of the UN’s 193 member states supported this resolution. Moreover, it received significantly less support than the last time it was adopted in 2020, by a vote of 147 to 10 with 16 abstentions and 20 non-voting. Significantly, a number of countries changed their votes from Yes or Abstain to No in 2022, including Austria, Czech Republic, Estonia, Germany, Italy, Romania, and the United Kingdom. Several EU countries also changed their votes from Yes to Abstain. Details of the vote are below:
YES: 87, including China, Cuba, Iran, Iraq, Libya, North Korea, Pakistan, Russia, Saudi Arabia, Syria, Turkey, Vietnam, Yemen, and Zimbabwe. Disappointingly, Belgium, Ireland, and Luxembourg also voted yes.
NO: 26, including the United States, United Kingdom, Germany, Italy, Australia, Canada, Austria, Czech Republic, Costa Rica, Croatia, Estonia, Guatemala, Kenya, Liberia, Lithuania, and Romania.
ABSTAIN: 53, including 11 EU countries.
Initial Timeline and Participants
January 17, 2023 – UN Secretary-General Antonio Guterres transmitted the UNGA’s request for an advisory opinion to the Court. See ICJ Press Release dated January 20, 2023.
February 3, 2023 – The Court issued an order setting the following deadlines for submissions: July 25, 2023 for written statements and October 25, 2023 for written comments on written statements submitted by other parties. See ICJ Press Release dated February 8, 2023.
March 10, 2023 – The Court authorized the League of Arab States to participate in the proceedings. See ICJ Press Release dated March 10, 2023.
March 31, 2023 – The Court authorized the Organization of Islamic Cooperation to participate in the proceedings. See ICJ Press Release dated March 31, 2023.
April 13, 2023 – The Court authorized the African Union to participate in the proceedings. See ICJ Press Release dated April 13, 2023.
The ICJ also published an Explanatory Note about its procedures.
Written Submissions
In a press release dated August 7, 2023, the ICJ reported that it had received and accepted a total of 57 written statements, including two that were submitted late—by Senegal and Zambia. The other 55 written statements were by: Turkey, Namibia, Luxembourg, Canada, Bangladesh, Jordan, Chile, Liechtenstein, Lebanon, Norway, Israel, Algeria, Arab League, Syria, Palestine, Organization of Islamic Cooperation, Egypt, Guyana, Japan, Saudi Arabia, Qatar, Switzerland, Spain, Russia, Italy, Yemen, Maldives, United Arab Emirates, Oman, African Union, Pakistan, South Africa, United Kingdom, Hungary, Brazil, France, Kuwait, United States, China, Gambia, Ireland, Belize, Bolivia, Cuba, Mauritius, Morocco, Czech Republic, Malaysia, Colombia, Indonesia, Guatemala, Nauru, Djibouti, Togo, and Fiji.
Oral arguments are expected to take place in early 2024 with a decision expected in mid-2024. The written submissions are not being made public until the oral argumentation phase. However, some submissions were leaked, including that of Canada.
Canada’s Submission
Canada argues that the Court should exercise its discretionary power pursuant to Article 65(1) of the Statute to decline the General Assembly’s request for an advisory opinion in this case due to the following compelling reasons:
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Israel has not consented to the ICJ’s jurisdiction and this is part of a dispute that should be resolved through negotiations between Israel and the Palestinians. Canada cited to the Court’s Advisory Opinions on Western Sahara and Chagos. In the Western Sahara case, the Court said “The lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character. An instance of this would be when the circumstances disclose that to give a reply 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…” In the Chagos case, the Court said that “there would be a compelling reason for it to decline to give an advisory opinion” when such an opinion would have the effect of circumventing the need for a State to give its consent to have its disputes submitted to judicial settlement.
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The Security Council has the primary responsibility for this issue. Here, Canada distinguished this case from the Chagos case on grounds that Chagos involved the broader issue of decolonization which the General Assembly had a “long and consistent” record of trying to bring to an end. By contrast, here it is the Security Council—not the General Assembly—that has established a framework for the parties to resolve the dispute through negotiations. Canada also cited to the ICJ’s Wall opinion where it said that questions concerning the “greater whole” of the dispute, beyond the limited issue if Israel’s security barrier, should be left to the parties to negotiate.
In its conclusion, Canada expressed concern that an advisory opinion by the ICJ “may contribute to polarization of positions that risks moving the parties further away from a just and lasting resolution to the conflict.” Indeed, if the ICJ concludes that international law requires Israel to unilaterally withdraw from the West Bank, it will eviscerate Israel’s negotiating power and remove any incentives for the Palestinians to compromise on the final status issues left open in the Oslo Accords, i.e., Jerusalem, borders, and refugees. Ultimately, this emboldens extremists on both sides and undermines peace.
