Publication
The UN General Assembly’s decision to approve the Palestinian request is a defining moment in the legal saga of the conflict • Israel must prepare properly for the move and make decisions that will strengthen its strategic and legal stance
The UN General Assembly’s decision to approve the Palestinian request to refer the conflict for an advisory opinion by the International Court of Justice (ICJ) in The Hague is a defining moment in the legal saga of the Israeli-Palestinian conflict, which has gained momentum over the past two decades.
The State of Israel must properly prepare for this move and make decisions that will strengthen its strategic and legal position. If our decision-makers fail to do so, we may find ourselves facing a challenge many times greater than what we have grown accustomed to.
The advisory opinion in question will be the second time the ICJ deals with an issue concerning Israeli control in Judea and Samaria. In 2004, the court issued an advisory opinion regarding Israel, focusing on the construction of the separation barrier. At the time, it was determined that the barrier’s construction infringes upon the Palestinians’ right to self-determination, as well as other human rights such as freedom of movement, and that states worldwide should refrain from cooperating with Israel regarding the barrier.
The Court May Address Fundamental Questions
The possibility of an additional proceeding regarding the Israeli-Palestinian conflict, some twenty years after the previous round, raises numerous questions.
First, it remains unclear whether the mandate given to the court in The Hague is sufficiently focused, or if it is overly broad and far-reaching. Unlike the 2004 advisory opinion, which involved a legal discussion on a specific issue (the separation barrier), this time the focus is on broader questions related to overall Israeli control in Judea and Samaria and East Jerusalem.
In other words, this opens the door for the court to address fundamental questions of the Israeli-Palestinian conflict and conduct a legal analysis regarding concrete actions taken by the State of Israel, such as establishing settlements in Judea and Samaria or annexing East Jerusalem.
Beyond its legal rulings on the specific questions before it, the court may also issue an explicit call to halt cooperation with Israel regarding developments in Judea and Samaria, which would strengthen calls for an international boycott on products originating from the region. This is a concerning prospect for leaders who prefer the conflict to remain within the realm of political rather than legal discourse.
Second, the State of Israel chose not to participate in the 2004 proceedings, under the assumption that doing so would undermine the legitimacy of the court’s conclusions. In practice, Israel’s non-participation merely prevented it from influencing the court’s legal findings, without affecting the legitimacy of the resulting advisory opinion in the slightest.
This time, the proposed mandate signals a dramatic development that could impact the future of Israeli control in Judea and Samaria—or at least its character—as well as Israel’s foreign relations and its efforts to justify its actions.
Third and finally, the court’s advisory opinion has the potential to strengthen the Palestinian Authority’s claim to statehood. For instance, rulings from the 2004 barrier opinion led to increased international recognition of the PA’s status as a state, culminating in its official accession to the UN (as a non-member observer state). Subsequently, the International Criminal Court (ICC) also accepted the PA’s request to extend its jurisdiction to Judea and Samaria, the Gaza Strip, and East Jerusalem.
Reports indicate Palestine’s desire to apply now for full UN membership as a regular member state, and future ICJ rulings on the matter could have a significant impact on this trajectory.
Ever since the “trauma” of the Goldstone Report, a shift in Israel’s approach has been evident, reflected in a greater effort to engage internationally or at least take a more active part in global dialogues. It would be wise for Israel to participate in the current proceedings, present its legal positions, and attempt to influence the court’s conclusions.
