The Palestinians, supported by a majority of UN member states, are utilizing the United Nations system to force Israel out of the so-called “Occupied Palestinian Territory”, and have all Jews removed from East Jerusalem, Judea and Samaria.
UN General Assembly resolution
On September 9, 2024, the Arab Group in the UN and the Organization of Islamic Cooperation (OIC) submitted a draft resolution to the UN General Assembly, calling for Israel’s complete and unconditional withdrawal from the West Bank within six months.
The Arab Group, represented by Syria, and the OIC sent a letter to the Presidency of the General Assembly (GA) requesting the “swift resumption” of the Tenth Special Emergency Session of the GA, “to enable the membership to consider urgent follow-up on the Advisory Opinion of the International Court of Justice (ICJ) on the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territories…”.
The resolution demands Israel to bring to an end without delay “its unlawful presence in the Occupied Palestinian Territory, …, and to do so no later than six months since the adoption of this resolution”. It also demands Israel the “evacuation of all settlers” from the territories and “making reparations for the damage caused to all natural o legal persons concerned in the Occupied Palestinian Territory.”
Any such resolution would contradict one of the UN’s primary objectives: maintaining global peace and security.
Moreover, the text demands Israel’s strict compliance with the provisional measures ordered by the ICJ in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (South Africa v. Israel), aimed at protecting the Palestinian people in the Gaza Strip.
It calls on third states to fulfill their legal obligations as outlined in the Advisory Opinion, recognizing the Palestinian people’s right to self-determination as an erga omnes right. Third states are also required to ensure that their nationals, or corporations under their jurisdiction, do not act in any way that implies recognition of, or provides aid or assistance in maintaining, the situation created by Israel’s illegal presence in the Occupied Palestinian Territory. Furthermore, it calls for sanctions against Israeli nationals involved in human rights violations against Palestinian residents and the imposition of arms embargoes on Israel.
One-sided Opinion
In its Advisory Opinion on 19th July, the ICJ advised that Israel’s military presence in the so-called ‘Occupied Palestinian Territory’ is illegal, that the United Nations (UN) and all states must ensure that the occupation is ended ‘as rapidly as possible’. Fourteen judges said that all settlers must vacate the territory.
The ICJ Advisory Opinion of 19th July is one-sided, as it only focused on Israel’s alleged wrongdoings. It completely disregarded Israel’s sovereign claims over the territories of British Mandatory Palestine and ignored the acute security threats Israel faces from its enemies, particularly the growing terrorist activity in the West Bank from Hamas and other jihadist groups backed by Iran. The Advisory Opinion also failed to assess Israel’s reconfiguration of its existential security risks following the horrific Hamas attack on October 7.
The ICJ’s legal opinion was the result of the one-sided UN resolution (77/247) and a one-sided advisory opinion process driven by the Palestinians and supported by around 80 states, many of them hostile to the State of Israel.
Six out of fifteen judges of the Court criticised the one-sided nature of the Opinion, especially the Opinion’s failure to adequately take account of Israel’s legitimate security difficulties. Of these, three judges (Tomka, Abraham and Aurescu) strongly disagreed with the conclusion that the occupation is illegal, and one judge (Sebutinde) said the Opinion is totally flawed, and the Court should not have isued an Opinion at all.
Because of the bias of the questions posed by the UNGA, the ICJ focussed exclusively on Israel’s alleged misconduct and failed to answer disputed questions of law and fact fairly. Rather, it has adopted a historical and legal narrative that undermines the sovereignty of Israel as a UN member state and rewards Arab-Palestinian aggression.
Moreover, as some judges noted, the Opinion ignores the realities on the ground. Compelling unilateral Israeli withdrawal opens the door wide for Iran and its terrorist proxies and allies like Hamas, to consolidate their presence in the West Bank and pursue their goal of destroying the Jewish State of Israel.
Specific criticisms of the ICJ Advisory Opinion
(1) Occupation, annexation and sovereignty. The ICJ Opinion ignores Israel’s legitimate sovereign claims to East Jerusalem and the West Bank, which are based on the former British Mandate of Palestine (1922). The ICJ disregarded the well-established principle of international law ‘uti possidetis juris’, which provides that newly formed sovereign states should maintain the internal borders that their previous territory had before their independence. The court did not have sufficient evidence or arguments to conclude that the entire territory captured in the 1967 Six-Day War was ‘Palestinian’ or that Israel had forcibly acquired or attempted to acquire foreign territory during or after the war.
(2) Self-determination and security. By calling on Israel to end its military presence in East Jerusalem, the West Bank and Gaza without adequate security guarantees, the Opinion rewards aggression and ignores the existential threats posed to Israel by these territories. This approach is more likely to exacerbate tensions in the Middle East than to de-escalate them.
(3) UNSC Res 242, Oslo Accords and negotiations. The ICJ’s approach undermines the Oslo Accords and the Security Council-sanctioned peace process, which is based on a negotiated solution to all outstanding issues in the conflict, including security, borders, the status of Jerusalem and the settlements.
(4) Illegality of Israel’s practices and policies vs. illegality of Israel’s presence. The ICJ does not provide sufficient grounds for concluding that Israel’s presence in the territories is illegal.
Conclusion
ICJ advisory opinions are not binding on the states involved or on third states. Similarly, UN General Assembly resolutions are not legally binding.
Under the circumstances, we recommend that peace-loving nations work to prevent the adoption of any UN resolution declaring Israel’s presence in the territories illegal or calling for its withdrawal without a comprehensive peace agreement that guarantees Israel’s security and survival. Israel’s enemies have already escalated tensions to a breaking point. Any such resolution would contradict one of the UN’s primary objectives: maintaining global peace and security.
However, the reality of the United Nations is that the majority of states wish to see the destruction of the Jewish state, and establishment of a Palestinian state.
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