In the first week of May, the International Court of Justice (ICJ) heard oral arguments from forty-three states and international organisations on a request by the UN General Assembly for an ‘advisory opinion’ concerning Israel’s obligations to ensure humanitarian aid to Gaza.
Since the 7 October massacres, the Islamic, Arab and African groups of UN member states, with the support of some European and Latin American countries—together comprising a majority of UN members—have mobilised the International Criminal Court (ICC) to accuse Israel’s leaders of war crimes, and the ICJ to hear cases in which the State of Israel is accused of committing genocide, breaching fundamental human rights laws and the laws of war and implementing an apartheid regime.
The Court heard arguments from: Palestine; Egypt; Malaysia; South Africa; Algeria; Saudi Arabia; Belgium; Colombia; Bolivia; Brazil; Chile; Spain; the United States of America; the Russian Federation; France; Hungary; Indonesia; Turkey; Iran; Jordan; Kuwait; Luxembourg; Maldives; Mexico; Namibia; Norway; Pakistan; Panama; Poland; Qatar; the United Kingdom; China; Senegal; Slovenia; Sudan; Switzerland; Comoros; Tunisia; Vanuatu; the League of Arab States; the Organisation of Islamic Cooperation; and the African Union.
Given the composition of this group, it is no surprise that the vast majority condemned Israel. Only a very few defended the difficult position that Israel faces in an asymmetric war with terrorist organisations embedded in the local population. Israel has been warning throughout the war that Hamas cynically exploits international humanitarian aid to support its war aims to destroy Israel.
The proceedings were provoked by Israel’s decisions to terminate its cooperation with the UN agency for Palestinian refugees—UNRWA—and to restrict humanitarian aid into Gaza. There is a plethora of pro- Palestinian institutions embedded within the UN. One of these is UNRWA, which was established and is authorised under General Assembly resolutions, adopted each year by majority votes leveraged by the Organisation of Islamic Cooperation, which has the largest membership of any organisation other than the UN itself.
The United States and Hungary defended Israel’s decision to terminate cooperation with UNRWA. The UK urged the court not to make a ruling on whether or not Israel has violated international law. It was, however, remarkable that the UK called UNRWA an “impartial humanitarian organisation.”
Israel had made written submissions, strongly challenging the court’s jurisdiction, but chose not to appear before the court in the oral proceedings.
Requests by the General Assembly for the Court to give legal advice condemning Israel have become a regular feature of the General Assembly’s annual proceedings. They are always framed in terms that prejudge the expected outcomes of the advice. For example, last week’s hearing was on Israel’s obligations to ensure unhindered provision of “urgently needed supplies essential to the survival of the Palestinian civilian population as well as of basic services and humanitarian and development assistance, for the benefit of the Palestinian civilian population, and in support of the Palestinian people’s right to self-determination.”
Not only was the question posed to the ICJ biased, but the evidence before the Court is almost entirely provided by the UN Secretariat that endorses the outcome desired by the UN political majority.
This systemic bias against Israel means that the Court is prevented from considering the real facts about how UNRWA has been infiltrated by Hamas, and the strong arguments under international law that support Israel’s decisions to stop working with UNRWA and to restrict humanitarian aid supplies into Gaza to prevent their misuse by Hamas.
A half-dozen of the principal legal arguments that have been made in favour of Israel are set out here:
First, the advisory opinion prejudices other contentious cases under the Court’s current consideration. Two of these cases, South Africa v Israel and Nicaragua v Germany, concern allegations of genocide. These cover many of the same factual issues as the UNRWA advisory opinion. For the International Court of Justice to hand down an advisory opinion before the conclusion of submissions by the parties in the South Africa case would do irreparable damage to the rights of the parties in these other cases.
Second, the Court has inadequate information available to render a decision and should thus not do so. This failure in the evidence was noted by Judge Julia Sebutinde, vice- president of the Court, in her dissenting judgement in last year’s advisory opinion on the legal consequences arising from policies and practices of Israel in Palestine. She observed that the Court’s advisory opinion in that case “does not reflect a comprehensive, balanced, impartial and in-depth examination of the pertinent legal and factual questions involved. It also overlooks the intricate realities and history of the territories and populations.”
Third, no state can be compelled to cooperate with corruption or terrorism. Hamas has influence over the UNRWA staff union, and Israel alleges that more than 10% of UNRWA staff in Gaza have ties to terrorist factions, while 50% have close relatives in terrorist factions. The glorification of terror and incitement against Jews in UNRWA is widely documented. Several UNRWA employees actively participated in the 7 October massacre of Israelis, some were even caught on video. Moreover, UNRWA’s mandate perpetuates the Palestinian refugee status, making a peaceful resolution more difficult. Therefore, to oblige Israel to cooperate and collaborate with UNRWA is to extort concessions harmful to the Jewish state.
Fourth, it is not clear that the 1946 Convention on Privileges and Immunities of the United Nations even applies to UNRWA. The current position of the US State Department is that it does not. Privileges and immunities are necessary for the fulfilment of United Nations purposes. But neither terrorism nor armed attacks are UN purposes to which diplomatic protections apply. To the contrary, they are prohibited under international law.
Fifth, the scope of diplomatic immunities and privileges are qualified by individual agreements between agencies and host states. In the case of UNRWA, that individual agreement is the Comay-Michelmore Exchange of Letters, which was provisional and open to replacement or cancellation. The diplomatic privileges granted to UNRWA under the agreement were conditional and lawfully terminated by Israel.
Sixth, it is not true that the Palestinians are dependent upon UNRWA for humanitarian aid. This can and is being provided outside of UNRWA auspices. There is no legal obligation to provide humanitarian assistance specifically through UNRWA. UNRWA is not even within the top six aid providers currently active in Gaza. Education, healthcare, humanitarian relief and social services can be supplied by other UN agencies, none of which are affected by the restrictions Israel will impose on UNRWA. In addition, many NGOs are active in this space of humanitarian activities.
The Court is expected to deliver its Advisory Opinion in August. It is highly likely that the majority of the Court’s judges will ignore these arguments made in defence of Israel.
Over the past 18 months, even the four European judges (Slovakia, Germany, France and Romania), and the American and Australian judges have shown that they are largely captured by the UN-centric system of which they are an integral part. Only the Ugandan judge Sebutinde, with some support from others, has shown real courage to challenge the one-sided legal arguments and evidence put before the court.
The repeated condemnations of Israel continue a historic pattern or cultural continuum, in which today’s highest courts persecute Jews in much the same way that royal courts of disputation did in medieval times. In other words, proceedings before the ICJ and ICC have become show trials.
But Israel is not the only one to suffer from this broken system. The politicisation of our international legal institutions might start with the Jews, but does not end there. The subversion of international laws and the judicial institutions for political purposes undermines the entire judicial authority of the international courts. It is a terrible blow to the very rules-based international order these courts were supposed to protect.
0 Comments