{"id":54597,"date":"2023-06-26T10:00:00","date_gmt":"2023-06-26T09:00:00","guid":{"rendered":"http:\/\/cupblog.bluefusesystems.com\/?p=54597"},"modified":"2023-06-21T21:07:55","modified_gmt":"2023-06-21T20:07:55","slug":"the-return-of-the-palestinian-question-to-the-international-court-of-justice","status":"publish","type":"post","link":"https:\/\/www.cambridge.org\/core\/blog\/2023\/06\/26\/the-return-of-the-palestinian-question-to-the-international-court-of-justice\/","title":{"rendered":"The Return of the Palestinian Question to the International Court of Justice"},"content":{"rendered":"
<\/div>\n

Introduction<\/strong><\/h4>\n\n\n\n

On 30 December 2022, the United Nations General Assembly (UNGA) passed Resolution 77\/247<\/a> on \u2018Israeli practices affecting the human rights of the Palestinian people in the occupied territories\u2019. In addition to condemning the Israeli occupation, UNGA also requested an advisory opinion<\/a>, from the International Court of Justice (ICJ), on the legal effects of the occupation on Palestinian self-determination, which was recognised<\/a> by ICJ on 20 January 2023. This second UNGA request allows the Palestinian Authority (PA) to refine the judicialisation started two years ago with the first opinion<\/a>, dated 9 July 2004, on the legal consequences of building a wall in the occupied Palestinian territory (Wall Affair).<\/p>\n\n\n\n

This article examines the centrality of UNGA in facilitating the judicialisation process and explores the ICJ’s capability to enhance the Palestinian multilateral strategy. The ICJ’s jurisdiction, assessment of Israel’s self-defence claim, determination of Israeli violations of international law, recognition of applicable legal corpus, and consideration of erga omnes obligations are crucial factors shaping the ICJ’s verdict and its impact on the Palestinian question. Ultimately, the anticipated ruling has the potential to reinvigorate the judicialisation process, hold Israel accountable for its actions, and trigger international measures for restoring peace and security in the region.<\/p>\n\n\n\n

UNGA\u2019s Centrality in Judicialization<\/strong><\/p>\n\n\n\n

PA\u2019s multilateral approach, ignited in 2009<\/a> by ICJ\u2019s 2004 opinion, relies on foreign organisations to establish a Palestinian state by recognising it. The advisory opinion<\/a> decided upon a plethora of arenas: justifiable defence, self-determination, international human rights law (IHRL), international humanitarian law (IHL), and criminal law. However, PA did not anticipate such thoroughness. This inclusive ruling aided PA in legally establishing its cause and judicialise the conflict under ICJ\u2019s global agenda. Therefore, the UNGA\u2019s role in interrogating ICJ under Article 96 of the UN Charter<\/a> (UNC) is imperative.<\/p>\n\n\n\n

Since the 1960 and 1970s, the UN has championed the Palestinian cause by gradually uplifting Palestine\u2019s status. It initially recognised the cause as the Palestinian Liberation Organisation (PLO)<\/a>, from 1974 and 1988, to ultimately recognise Palestine<\/a>, post-1988, for granting PA the rights and prerogative, allowing them to participate in the UN actively. On 29 November 2019, UNGA recently awarded Palestine the observer status<\/a> as a non-member state, enabling Palestine to join multiple international organisations and ratify multilateral treaties and boost PA\u2019s judicialisation.<\/p>\n\n\n\n

Thus, Palestine was able to make ICJ \u2018claims\u2019 against other governments after acceding to the Rome statute in 2015<\/a>. To exemplify, on 28 September 2018, an initial petition<\/a>, vouched upon the 1961 Vienna Convention on Diplomatic Relations, was filed against the USA for the latter\u2019s decision to shift the US embassy from Tel Aviv to Jerusalem.<\/p>\n\n\n\n

Wherefore, UNGA succours Palestine query international tribunals about Israeli military occupation and its effect on Palestinian self-determination. Additionally, UNHCR\u2019s December ICJ appeal was not accidental. Instead, it was an intervention amid worsening Israel-Palestinian relations and a dismal outlook for resolution. The deterioration is bolstered by Benjamin Netanyahu\u2019s announcement Jews have \u2018exclusive and inalienable right<\/a> to all parts of the Land of Israel.\u2019 PA must alter its approach since world society, especially Arab Nations, is losing interest<\/a> in the problem.<\/p>\n\n\n\n

ICJ\u2019s Capability in Enhancing Palestinian Multilateral Strategy<\/strong><\/p>\n\n\n\n

The ICJ\u2019s ability was established from its 2004 decision<\/a> on (a) jurisdiction, (b) inherent defence matters, (c) suitable legal corpus, (d) Israel\u2019s violation of international obligations, and (e) obligations incumbent on all states to these violations.<\/p>\n\n\n\n

Court\u2019s Jurisdiction<\/p>\n\n\n\n

While Article 24<\/a> of UNC assigns peacekeeping jobs to UN Security Council (UNSC), Article 12<\/a> restricts it until inaction or request to UNGA. The ICJ concluded that the USA\u2019s veto on the Palestinian question refrained the UN from performing its goal. The court cited Resolution 377, Acheson Resolution<\/a>, \u2018in any case where there appears to be a threat to the peace, breach of peace, or act of aggression\u2019 because of non-attainment of unanimity amongst permanent members, \u2018(UNGA) shall consider the matter immediately to make appropriate recommendations to (its) members.\u2019 Now, the court might again criticise the Council\u2019s inaction despite Israel\u2019s ignorance of all Israeli-Palestinian resolutions since 2004.<\/p>\n\n\n\n

Secondly, the court refuted Israel\u2019s contention of the UN Agreement\u2019s desire to be political and non-legal by opining<\/a> that issue \u2018aims at the legal ramifications of a certain factual situation, taking into consideration the norms and principles of international law.\u2019 The court may now likely answer UNGA\u2019s query legally and hence, question the legality of the 55-year-old military occupation.<\/p>\n\n\n\n

Israel\u2019s Self-Defence Claim<\/p>\n\n\n\n

Article 51<\/a> of UNC, which defines self-defence (jus ad bellum<\/em>) as the first question, was held irrelevant to the wall affair by ICJ in 2004. It could only be invoked if PA approaches court with a claim of armed aggression, as is the case now.<\/p>\n\n\n\n

Armed aggression<\/a> is the \u2018state using military force against another state’s sovereignty, territorial integrity or political independence.\u2019 During the last two decades, it has also encompassed non-state armed organisations, like armed Palestinian factions. Israel must meet the dual test of necessity and proportionality to argue its \u2018anti-terrorist operations\u2019 against armed organisations as justified by Article 51. Thus, Israel needs to manifest (a) little choice but to use force against military objectives and (b) object of force to meet the goal of ending armed aggression. The success is doubted because not only the Palestinian civilian fatalities<\/a>, the demolition<\/a> of civilian dwellings, and the targeting of educational, humanitarian, and medical facilities are descoped from the test but also the breach of international law by military occupation remains non-justifiable under Article 51. According to Y. Dinstein<\/a>, the right to self-defence is only invoked in response to an armed attack, necessitating a proportional use of counterforce. While the actions taken by Israel, such as land requisitioning, undeniably have negative humanitarian and socio-economic consequences for the Palestinians, they do not constitute a counterforce response. Therefore, any attempt to justify these actions as self-defence under Article 51 is invalid and cannot be supported.<\/p>\n\n\n\n

Israeli Violation of International Law<\/p>\n\n\n\n

ICJ, in 2004, breached IHRL and IHL via Israeli laws and thus, limited Palestinian self-determination. Flouting, in the form of promotion of settlement and annexation, has continued for the past twenty years, despite UNSC\u2019s Resolution 2334<\/a> requiring the occupier to pause all settlement activities in occupied territory promptly. It allies with the Geneva Convention\u2019s<\/a> stand against the violation of territorial sovereignty by occupation, not temporary but rather permanent like the 55-year-old Israeli occupation. Hence, the court shall heavily weigh the repercussions of continuing occupation, which might lead to West Bank annexation. Eventually, Israel must pay \u2018indemnifying\u2019 restitution to restore the condition that would have presumably been there if the alleged crime had not been committed. In toto, the Jewish state should leave the occupied land and lift its Gaza Strip embargo<\/a>.<\/p>\n\n\n\n

This ruling of ICJ should account for the observations of other international organisations, the UN<\/a>\u2019s confirmation of PA\u2019s claim of illegal occupation, ICJ<\/a>\u2019s verdict of violation of international law by wall construction, ICC<\/a>\u2019s prosecutor\u2019s subsuming consideration of settlement construction as a war crime and European Union (EU)<\/a>\u2019s explicit denial over recognition of Israel\u2019s sovereignty over territories occupied since 1967. But the history still narrates an unpromising future of continued Israeli transgressions despite PA favouring judgement.<\/p>\n\n\n\n

Applicable Legal Corpus<\/p>\n\n\n\n

To adjudicate upon the matter, ICJ shall recognise the applicable legal corpus (jus in bello<\/em>). ICJ, in 2004, founded two eligible corpora:<\/p>\n\n\n\n

Firstly, it invoked IHL while rejecting Israel\u2019s argument, Article 2(1)<\/a> of the Fourth Geneva Convention restricts its application to only a contracting state; hence, it does not apply to Palestine. ICJ held<\/a> that the clause, \u2018Convention shall likewise apply in all circumstances of occupation of the whole or part of a High Contracting Party\u2019 does not limit its application, and thus, it is construed to involve non-state party territory. To refrain from such contentions, Palestine acceded to the four Geneva Conventions<\/a> and their additional protocols between April 2014 and January 2015. Additionally, the court bound Israel to the Fourth Hague Convention<\/a> of 1907’s Regulation on the Laws and Customs of War on Land despite the latter not being a signatory.<\/p>\n\n\n\n

Secondly, the court opined<\/a> that IHRL and other human rights conventions should apply to Palestine, irrespective of the war-like situation, thus devastating Israel\u2019s contention. This approach is consistently maintained by the court, like in the Case of Armed Activities in the Territory of the Congo<\/a>. Deciding otherwise would have violated the Covenant on Civil and Political Rights and the Economic, Social, and Cultural Rights Accord of 1966<\/a>.<\/p>\n\n\n\n

Erga Omnes<\/p>\n\n\n\n

The ICJ through its judgement in Barcelona Traction<\/a> stated that erga omnes obligations affect all states with \u2018a legal stake in the safeguarding of these rights.\u2019 The right to self-determination and IHL norms are \u2018so basic to respect for the human person \u2026 that they impose \u2026 on all states\u2019 was opined by it in License of the threat or use of nuclear weapons<\/a>.<\/p>\n\n\n\n

The ICJ should reiterate its 2004 stance<\/a> of non-acceptance of Israel\u2019s occupation, colonisation, and annexation of Palestinian land, including East Jerusalem by \u2018not offering help or support to sustain the situation\u2019 by other states. Alternatively, the court should explicitly mention the non-compliance of its ruling as noted by the progression of Yesha Council<\/a>, an Israeli organisation\u2019s process in a settlement.<\/p>\n\n\n\n

Finally, the court should determine other obligations incumbent on all states due to Israel\u2019s violation, in addition to passing an order in favour of Palestine to kickstart the UNSC\u2019s actions for restoring international peace and security, under Chapter VII of UNC<\/a>, by sanctioning measures against Israel, an arms embargo and investigating Israeli official\u2019s responsibility for international crimes.<\/p>\n\n\n\n

Conclusion<\/strong><\/p>\n\n\n\n

To provide an upshot to preceding deliberations, it can be stated that ICJ\u2019s anticipated verdict shall play a critical role in Palestine\u2019s multilateral strategy. The former has the potential to put UNSC into action and impose obligations on other states. This ruling shall not only reinstate the trust into judicialisation but also bring the conflict back into the light. Despite of multiplicity of positive global effects, the possibility of changes in ground reality still lingers.<\/p>\n\n\n\n

\"\"
Ahan Gadkari is a Final Year BA LLB Candidate at O.P. Jindal Global University. He serves as a Research Assistant to Dr. Aniruddha Rajput, Member, UN International Law Commission. Additionally, he is the Young-OGEMID Rapporteur for India. Further, he serves as an Editor at the Jindal Forum for International and Economic Laws.<\/figcaption><\/figure>\n\n\n\n
\"\"
Vaneet Kumar is a Third Year BA LLB Candidate at O.P. Jindal Global University and Executive Associate at Elethia Symposium. He serves as a Member of the BRICS Symposium hosted by HSE University Moscow.<\/figcaption><\/figure>\n\n\n\n

Read more on this topic in the\u00a0Asian Journal of International Law<\/a>.<\/em><\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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