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On Dangerous Legal Ground

January 6, 2023

by: Cheryl Hauer, International Vice President

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In a letter sent in late in 2022 to over 50 world leaders, then-Prime Minister Yair Lapid made a passionate appeal for help in stopping the latest Palestinian campaign to use the international justice system to delegitimize the State of Israel. The letter came in response to a November 11 United Nations (UN) resolution requesting that the International Court of Justice (ICJ) “render urgently an advisory opinion” on Israel’s “prolonged occupation, settlement and annexation of Palestinian territory.” Lapid called the action “a concerted effort to single out Israel, to discredit our legitimate security concerns and to delegitimize our very existence.”

It’s no wonder that the premier felt the need to go knocking on doors for support. The resolution passed the General Assembly’s Special Decolonization Committee with a vote of 98–17 with 52 abstentions. Only Austria, Canada, the Czech Republic, Germany, Guatemala, Hungary, Italy, the US and a handful of smaller nations stood by the Jewish state. All of the Arab states—including Israel’s celebrated new Arab allies—voted for the measure, as did Ukraine.

The resolution will go to the full 193-member General Assembly for final vote at the end of 2022 or beginning 2023. And judging by Israel’s past experiences with UN judicial bodies, they’re going to need all the help they can get.

Who Are these Judicial Bodies?

In recent years, the two judicial bodies that have made the news because of their interactions with Israel are the International Criminal Court (ICC) and the ICJ.

The ICC is a permanent international tribunal that tries individuals responsible for the most serious of international crimes. According to the UN website, the ICC seeks to investigate and prosecute those responsible for grave offenses such as genocide and war crimes. In March 2021, this court launched a war crimes probe into Israeli military practices and has in the past criminalized Israeli political leaders. The ICC’s judgments are technically unenforceable, and the court may only exercise its jurisdiction if the national court is unable or unwilling to do so.

The ICJ, however, is the principal judicial organ of the UN. It was established in June 1945 by the Charter of the United Nations and began work in April 1946. According to the UN website, it is charged with settling legal disputes submitted to it by states and giving advisory opinions on legal questions from UN bodies and agencies.

The website further states, “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”

Clearly, the ICJ serves an advisory function, and its ability to enforce legal opinion is limited. However, according to Israel’s Academic Center of Science and Law, the problem lies in the court of public opinion. According to the UN, a judgment rendered by the ICJ constitutes an authoritative interpretation of international law, making it awkward at best for a state to ignore such an opinion simply because it isn’t binding.

Israel’s last interaction with the ICJ was in 2004. Again, from the UN website: “The ICJ issued an advisory opinion today that Israel’s building of a barrier in the occupied Palestinian territory is illegal and said construction must stop immediately and Israel should make reparations for any damage caused.”

The website continues: “By a majority of 14 to 1, the judges determined that Israel was not justified in relying on a right of self-defense or on a state of necessity for the barrier and the court was not convinced that the chosen route was necessary for security reasons. Voting 13-2, the judges recommended that all States should not recognize the illegal situation resulting from the construction of the wall nor give any aid or assistance in maintaining the situation.”

Israeli legal experts are concerned that the 2004 decision may set the foundation for the ICJ’s potential response in the current situation.

Setting a Precedent

It is believed that this current draft resolution will follow the pattern of the recent UN Human Rights Council report that found Israel’s “occupation” to be “unlawful under international law.” Going beyond the already broad consensus that the “settlements” are illegal, the ICJ report will likely affirm that Israel’s “occupying” presence in Palestinian territories is itself illegal.

Israeli legal experts are concerned that the open-ended nature of the terminology used in the resolution could lead to claims of systemic discrimination and even apartheid. The motion mentions “discriminatory legislation and measures,” which experts believe opens the door to the question of apartheid.

Again, the ICJ resolution cannot go as far as recommending political measures and cannot require anyone to actually act on it. However, its finding could well be relevant for future actions by the ICC and could certainly lead to increasingly intense pressure on Israel regarding its policies in Judea and Samaria.

The Path to Peace

At the writing of this article, it is uncertain when the UN vote will actually occur. But regardless of the date, the results could potentially create significant fallout for Israel. Lapid was adamant in his belief that such unilateral interference on the part of the UN will only lead to more conflict. In his letter, he stated that such actions “will only play into the hands of the extremists, further polarize the parties and undermine the positive work that has been done over the past few years.”

In his final paragraph, he wrote, “I urge your country to exercise your influence on the Palestinian Authority so that they refrain from promoting this dangerous move at the General Assembly. We look to our friends to stand with us.”

Let’s pray that Israel’s friends do rise to the occasion, if not at the vote, then certainly in standing with Israel when the fallout occurs.

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