Haroon Siddique
The Guardian / July 29, 2024
Philippe Sands KC says non-binding opinion will nevertheless be seen as ‘authoritative statement of law’.
The UK should stop arming Israel in order to comply with the historic advisory opinion by the UN’s top court that member states should not “render aid or assistance” to the occupation of the Palestinian territories, a lawyer who represented Palestine has said.
In a broad and damning ruling published this month, the international court of justice (ICJ), found that Israel’s settlement policies and occupation of the territories were in breach of international law. It also said UN member states were under an obligation to neither recognize the occupation as lawful nor abet it.
With the UK already under pressure over the sales of arms to Israel during its military offensive in Gaza, which was launched in response to the 7 October attacks and has killed almost 40,000 Palestinians, Prof Philippe Sands KC, a member of Palestine’s legal team for the case at the ICJ, said the court’s opinion had important ramifications for the UK.
“The most immediate issue is the obligation in the advisory opinion on the states, which includes the United Kingdom, not to aid or assist in the maintenance of the current situation in the occupied territories of the West Bank, including [East] Jerusalem,” said Sands.
“That legal obligation precludes sales of military material which could be used directly or indirectly to assist Israel in maintaining its unlawful occupation of the occupied Palestinian territories.”
The foreign secretary, David Lammy, has said officials are, on his instructions, carrying out a “comprehensive review of Israel’s compliance with international humanitarian law” and has signaled that he is considering banning some arms sales to the country.
Sands said the ICJ’s ruling, as an advisory opinion requested by the UN general assembly, was not directly binding as such on the UK or other individual member states, but would be “recognized as an authoritative statement of the law and one that the UN and its specialized agencies will follow as law”.
Sands, who is a professor of law at University College London and a visiting professor at Harvard law school, said the ruling also affected the legality of imports from Israeli settlements to the UK and other countries.
“Anything that is produced in the occupied territories, such as food, or that is sold there over the internet, is in principle subject to the international prohibition, if it can be said to aid or assist in the maintenance of the unlawful occupation,” he said.
Sands said such ICJ opinions were routinely followed by a vote two to three months later at the UN general assembly as to whether they should be adopted and that the UK’s stance would be instructive. The UK voted against the ICJ referral and then submitted a 43-page legal opinion opposing it.
“How does the UK vote on that [the opinion]?” said Sands. “Will it vote against, or will it abstain? If the government is true to its word on respecting international law, given the nature and detail of the ICJ advisory opinion, you would expect them, at the very least, not to vote against. This could well be an early issue in relations with the United States, which will almost certainly vote against, despite the fact that the US judge was part of the large majority.”
Among the arguments advanced by Sands during the ICJ hearing in February was that on Palestinian right to self-determination. In its advisory opinion, the court referred to “the realization of the right of the Palestinian people to self-determination, including its right to an independent and sovereign state”.
While Labour has committed to recognizing a Palestinian state, it has not set a timescale and has said this would be “as a contribution to a renewed peace process which results in a two-state solution”.
Sands said: “Ultimately, the recognition of a state is a political matter, not a legal obligation, so there is a discretionary element. Nevertheless, the ICJ judges have clearly stated that self-determination means that the Palestinian people ‘have the right to an independent and sovereign state’. About 150 states (out of nearly 200) have recognized Palestine as a state, the UK is part of a small and diminishing group that refuses to do so.”
After the ICJ advisory opinion, the UK Foreign, Commonwealth and Development Office said on 19 July it was “considering it carefully before responding” and “respects the independence of the ICJ”.
Haroon Siddique is The Guardian’s legal affairs correspondent
