In December, the UN General Assembly passed a resolution requesting that the International Court of Justice (ICJ)—a UN body tasked with resolving disputes between states—issue an advisory opinion on the Israeli presence in “the Palestinian territory occupied since 1967.” This very phrase, which assumes that the land in question is Palestinian in a legal sense rather than territory occupied first by Jordan and then by Israel, both prejudices the outcome and bespeaks carelessness about the finer points of international law. The details of the request only accentuate these problems. Orde Kittrie and Bruce Rashkow explain that the ruling the ICJ is poised to issue stands not only to undermine the very basis of the Oslo Accords and of the court’s legitimacy, but also to do serious damage to the laws of war:
While international law prohibits the permanent acquisition by force of the territory of another state, it does not prohibit an interim occupation, which results from a legal use of force in self-defense, pending resolution of the conflict. The 1907 Hague Regulations and 1949 Fourth Geneva Convention both provide for and regulate such occupations. Neither requires an occupier whose occupation results from a legal use of force in self-defense to withdraw before a peace treaty is signed.
In 1967, the international community recognized the legality of Israel’s preemptive action against Arab armies poised to attack. Draft resolutions condemning Israel’s actions were resoundingly defeated in both the UN Security Council and General Assembly.
The expected ICJ ruling—the one the General Assembly’s request was designed to elicit—that any Israeli presence in the West Bank or east Jerusalem is illegal would therefore require an immediate Israeli withdrawal. Setting aside the unlikelihood that the Jewish state would abide by the ruling, as well as the catastrophic consequences doing so would have for Israel, Jordan, and the civilian population of the West Bank, the decision would render moot both the Oslo Accords and prior UN resolutions.
Kittrie and Rashkow explain that “the Oslo I Accord . . . affirmed the Security Council’s ‘land for peace’ framework, set forth in two binding resolutions,” which requires that the two sides engage in “negotiations . . . leading to a permanent settlement” of the conflict. The prospective ICJ ruling obviates the need for such negotiations. And that’s not all:
An ICJ opinion that international law requires Israel to withdraw from the disputed territories without any Palestinian concessions on any of the permanent-status issues would make it far more difficult or even impossible for Palestinian leaders to compromise with Israel on such issues. Since Israel will inevitably decline to withdraw unilaterally, the advisory opinion will, in addition to undercutting compromise-minded Palestinians, create yet another Israeli “violation” with which activists can demand anti-Israel boycotts, divestment, and sanctions. Given the practical realities, that is presumably the real objective of the General Assembly request’s architects.
The pending ICJ advisory proceedings also threaten to expand upon the dangerous precedent . . . that the General Assembly and ICJ can use advisory opinions to circumvent the sovereign right of nation states to determine whether to submit to the Court a particular dispute to which they are a party.
Read more on Articles of War: https://lieber.westpoint.edu/pending-israel-palestine-icj-advisory-opinion-threats-legal-principles-security/