The timing of last week's ICJ hearings could lead to greater compliance with the court's ruling than in previous cases.
Between 19 and 26 February, the International Court of Justice (ICJ) held a landmark sitting to hear oral arguments by 51 countries and three international organisations on the legal consequences of Israel's continued occupation of Palestinian territories (see box).
After the oral hearings, the judges must consider all the arguments (including 57 written submissions) and provide an advisory opinion. No other application before the ICJ has involved this many countries - although the 2003 West Bank wall case came close, with 45 states and four international organisations submitting written statements.
The large number of countries intervening is unsurprising, considering that the opinion was requested by a December 2022 United Nations (UN) General Assembly resolution that passed with 87 votes in favour, 26 against and 53 abstentions. Of the 40 African countries present for the vote, 26 voted in favour, four against, and 10 abstained.
In its presentation on 19 February, Palestine's legal team drew on its July 2023 written submissions and subsequent events in Gaza. The lawyers argued against the continued occupation of Palestinian territories by Israel, which they referred to as colonisation, racist violence and apartheid.
Meanwhile, while the ICJ hearings were underway, the UN Security Council (UNSC) on 20 February failed - again - to pass a resolution on a ceasefire in Gaza after the United States (US) vetoed it. Four resolutions have now been vetoed - three by the US.
Could the US' stance against a ceasefire in the Gaza war change with an ICJ advisory opinion in favour of Palestine? Unlikely.
A day after the failed UNSC resolution, the US presented its oral arguments at the ICJ, saying the court should not order Israel's withdrawal from the Occupied Palestinian Territories without security guarantees. (The same argument was made 20 years ago when the ICJ ruled that the West Bank wall was illegal.) The US also argued that there shouldn't be a time limit to Israel's occupation, and that the UNSC remained the best forum for deciding security matters.
Comments since then by US Secretary of State Antony Blinken that new Israeli settlements in the West Bank violate international law suggest a slight shift away from unconditional support for Israel.
Israel has rejected the ICJ proceedings as illegitimate, unwarranted and harmful
Israel has rejected the ICJ process as illegitimate, unwarranted and harmful. On 19 February, Prime Minister Benjamin Netanyahu reiterated this position, saying the ICJ proceedings were 'an effort designed to infringe on Israel's right to defend itself against existential threats' and that the government and Knesset (Parliament) were united in rejecting it.
Israel's position on the ICJ is unsurprising. But with the vast majority of countries' submissions aligning with Palestine's views on the occupation, Israel may be concerned that its support base is shrinking.
On the eve of the ICJ hearings, world leaders at the Munich Security Conference (MSC) displayed no appetite for a continued war in the Middle East. As multiple tracks of diplomacy were being pursued in closed discussions, on the main stage the refrain was clear: the war must end, hostages and prisoners of war should be released, and a two-state solution was the only viable way out.
But Israel's President Isaac Herzog and former foreign minister Tzipi Livni argued at the conference that Israel's military action in Gaza would continue and that a two-state solution could only be on the table once Hamas was 'eradicated from Gaza.' This stance, coupled with Netanyahu's rejection of the ICJ process, raises concerns about what, if any, impact the advisory opinion will have.
Of the 63 countries in the proceedings, only three have unequivocally defended the legality of the occupation
Although these opinions are non-binding, they play a critical role in shaping international law, and are instructive. But there's a poor track record on compliance. In the West Bank wall case, the court's finding that the wall was illegal and must be dismantled was rejected by Israel - and with no enforcement by any UN member states, the wall stands to this day. Israel may similarly ignore the decision on occupation.
But it's not only Israel's stance under scrutiny this time. It is also the views of countries supporting Israel as the war on Gaza enters its fifth month.
Of the 63 nations that are party to the proceedings, only three (Israel, the US and Hungary) have made statements unequivocally defending the legality of the occupation. While not rejecting the ICJ's role, Canada, Togo and Zambia's written submissions argued that the proceedings could undermine stability in Israel and Palestine and ongoing negotiations, and called on the court not to issue an opinion.
Countries, by region, intervening in ICJ case on Israel's occupation of Palestinian territories
Source: Author
(click on the graph for the full size image)
Others, like Fiji, argued that the UN General Assembly's request was biased, politicised and undermined the court's integrity. France asserted Israel's right to defend itself, but referred to the occupation as colonisation, rejecting further forceful acquisition of territories, and calling on Israel to grant Palestinians protections and rights.
Most states (40), along with the League of Arab States, African Union (AU) and Organisation of Islamic Cooperation welcomed an ICJ advisory opinion to settle the issue. They argued that by transferring parts of its civilian population into the Occupied Palestinian Territories, Israel violated Article 49(6) of the Fourth Geneva Convention, which prohibits occupying powers from deporting or transferring parts of their civilian population into the territory they occupy.
It also prohibits the 'individual or mass forcible transfers, as well as deportations of protected persons from occupied territory.' This reaffirms the ICJ's advisory opinion on the West Bank wall.
With most countries aligning with Palestine's views on the occupation, Israel's support base is shrinking
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Fifteen African countries and the AU have contributed to the current ICJ case. They were united in their statements, which focused on international humanitarian law and argued that the occupation breached the Apartheid Convention. Only Togo and Zambia said they didn't regard the ICJ as the right platform to deal with the issue, although they did condemn violence in the Israeli-Palestinian conflict.
The advisory opinion will likely come out long before South Africa's ICJ case against Israel on genocide in Gaza is decided. Israel had until 26 February to report on its implementation of the court's provisional measures to prevent genocide in Gaza. Israel's media reported that the government did meet the deadline, but details were unavailable at the time of writing.
Israel's report back will likely include humanitarian measures and efforts to deal with incitement. However, Israel has already been criticised for not providing essential services and impeding humanitarian aid. And its actions since the ICJ ruling on 26 January, including statements by Netanyahu, suggest the conflict is intensifying. Israel maintains that these actions do not amount to genocide.
An ICJ advisory opinion on Israel's occupation of Palestine is expected before July 2024. Even if it's largely symbolic, the message from the many countries that argued against the occupation is clear: previous bystanders are now actively making their views heard, suggesting widespread support for judicial processes as integral to the rule of law.
Ottilia Anna Maunganidze, Head of Special Projects, ISS
