Maureen Clare Murphy
5 January 2023
Israeli settlers attempt to establish a new settlement in the northern West Bank in October 2015. Yotam RonenActiveStills
Last week, the UN General Assembly voted in favor of requesting an advisory opinion from the International Court of Justice on the legality of Israel’s occupation of the West Bank – including East Jerusalem – and Gaza.
The resolution asks the court to set out the legal consequences of Israel’s violation of Palestinians’ right to self-determination and its prolonged occupation, settlement and annexation of Palestinian land since 1967.
This includes “measures aimed at altering the demographic composition, character and status” of Jerusalem and the “adoption of discriminatory legislation and measures.”
The resolution also asks the court to determine “the legal consequences that arise for all states and the United Nations” as a result of its findings.
The International Court of Justice is the UN’s tribunal for settling legal disputes submitted by states and requests for advisory opinions on legal questions referred to it through the UN system.
Though both are based in The Hague, the International Court of Justice is a separate body from the International Criminal Court, which opened an investigation into the human rights situation in the West Bank and Gaza Strip last year.
Advisory opinions issued by the ICJ are non-binding.
Ignored
This will not be the first time that the ICJ has weighed in on Israel’s activities in occupied Palestinian territory.
In 2004, the court ruled that Israel’s construction of a massive wall in the occupied West Bank was illegal and must be stopped immediately and that reparations should be made for damage caused.
The 2004 advisory opinion had little effect on the ground in Palestine and is one of many recommendations made by UN organs concerning Israel’s violations of Palestinian rights that has gone ignored – both by Israel and third states.
Ahead of last week’s vote, the Palestinian Human Rights Organization Council stated that despite the limited material effect of the 2004 advisory opinion, “the case supported the undeniable right of the Palestinian people to their self-determination under international law and emphasizes the illegality of all annexations and settlements.”
Additionally, the court’s 2004 ruling found that Israel’s wall in the West Bank amounted to de facto annexation of occupied territory.
Al-Haq, a leading Palestinian human rights group, said that the new advisory opinion “may incur, for the first time, important obligations on third states and the international community to bring the occupation to an end.”
Palestinian human rights groups championed the resolution, which was drafted by the UN’s Special Political and Decolonization Committee and then submitted to the General Assembly.
Al Mezan, a Palestinian rights group based in Gaza, said that the adoption of the resolution “is a significant milestone in the struggle against Israel’s apartheid settler-colonial regime.”
The rights group noted that many European states either abstained or voted against the measure despite it coming “at a critical time when a new far-right Israeli government has been installed.”
That government, Al Mezan noted, has “vowed to legalize dozens of illegal settlements and annex the West Bank as a top priority.”
Indeed, Israel is seeing through with those pledges by destroying Palestinian structures in Jerusalem and the South Hebron Hills and issuing forcible transfer notices affecting 1,000 people in the Masafer Yatta area of the southern West Bank this week.
European double standards
The failure of many European states to support the resolution seeking an advisory opinion on Israel’s prolonged occupation throws the double standards by which international law is applied into sharp contrast.
While imposing unprecedented sanctions on Russia over its invasion and occupation of Ukraine, European states have paid only lip service to opposing Israel’s occupation of the West Bank and Gaza Strip.
European Union officials even welcomed the new Israeli government led by extremists who have pledged to formally annex West Bank land and complete the ethnic cleansing of Palestine that began in 1948. Josep Borrell, the EU’s foreign policy chief, has stated that he plans to work with the new government on “further improving” relations with Israel.
While Borrell continues to talk about promoting a two-state solution, Zvika Fogel, a member of the new Israeli parliament, said that “the occupation is permanent.”
Fogel belongs to the Jewish Power party headed by Itamar Ben-Gvir, Israel’s new national security minister who now oversees Israel’s police and paramilitary Border Police that operate in the West Bank.
Fogel is former chief of staff of the Israeli military’s “southern command,” which includes the Gaza Strip.
In 2018, soon after the launch of Great March of Return protests along Gaza’s boundary with Israel, Fogel championed the use of lethal force against Palestinians who approach the boundary fence, including children.
He said that shooting and killing children was a reasonable “price that we have to pay to preserve the safety and quality of life of the residents of the state of Israel.”
More than 215 Palestinian civilians, including more than 40 children, were killed during those demonstrations, and thousands more wounded by live fire during those protests between March 2018 and December 2019.
A UN commission of inquiry found that Israel’s use of lethal force against protesters warrants criminal investigation and prosecution and may amount to war crimes and crimes against humanity.
The UN investigators called for sanctions on those responsible and for the arrest of Israeli personnel “alleged to have committed, or who ordered to have committed” international crimes in relation to the Great March of Return protests.
Those recommendations went ignored by the same states who have thrown their support and money behind war crimes trials and other punitive measures after Russia’s invasion of Ukraine.
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