Bethan McKernan
The Guardian / August 24, 2023
Dismay over UK statement that opposes hearing altogether and is accused of ignoring significant facts.
The UK has been accused of “seeking to block the international court of justice (ICJ) from addressing important international humanitarian law matters” in a submission to the world court on the legality of Israel’s occupation of the Palestinian territories.
A 43-page legal opinion, seen by The Guardian, was submitted by the UK last month as part of the ICJ’s fact-finding stage before an expected advisory ruling from the court on the legal consequences of the “occupation, settlement and annexation” of Palestinian land.
The UK’s “amicus brief” opposes the hearing of the case in the ICJ altogether – a position shared by only a handful of the 57 opinions sent to the court by member states and non-governmental organizations.
The UK statement has been met with dismay by Palestinian diplomats, as well as international humanitarian law experts, who say it ignores not just the fact that Israel’s occupation is entrenched, but that the situation is rapidly deteriorating.
Sitting in The Hague, the ICJ is the top UN court for dealing with disputes between countries: its rulings are binding, although the court has no power to enforce them.
This legal action is seen as important by Israel and the Palestinians, however, because while various UN bodies have found that aspects of the occupation are illegal, to date there has never been a judgment on whether the occupation itself, now in its 56th year, either is or has become unlawful.
A UN general assembly resolution in December requested the advisory opinion from the ICJ on the “legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory”. The UK, along with Israel and western states such as the US and Germany, voted against it, on the grounds it would push the parties away from negotiations.
The UK opinion submitted to the ICJ rests on four main arguments:
- An advisory opinion would effectively settle Israel’s “bilateral dispute” without the state’s consent.
- The court is not equipped to examine a “broad range of complex factual issues concerning the entire history of the parties’ dispute”.
- An advisory opinion would conflict with existing agreements between the parties and negotiation frameworks endorsed by the UN.
- The request is not appropriate as it asks the court to “assume unlawful conduct on the part of Israel”.
“[Assuming that the document is authentic] … this is a rather weak and uninformed document that portrays Israel’s longstanding occupation of the West Bank and Gaza, and its annexation of East Jerusalem, as a bilateral dispute between two states,” said Dr Victor Kattan, an assistant professor in public international law at the University of Nottingham who has written widely on the Israeli-Palestinian conflict.
According to Kattan, the ICJ can issue an opinion on any legal question arising from the work of the UN, and the general assembly does not need Israel’s consent to refer a request to the court.
A senior Palestinian source, who asked not to be named in order to speak freely, said: “The UK submission is a complete endorsement of Israeli talking points. They are not arguing that this is not the right time to go to the ICJ, because the peace process is working. They are saying the Israeli violations Palestinians point out are not as important as negotiation frameworks from decades ago.”
Daniel Machover of Hickman & Rose solicitors in London, who has extensive experience in human rights litigation, said with the caveat that the document is authentic: “It is a matter of concern that the UK is seeking to block the court from addressing such important matters, something I am sure it would not do were the court asked to address comparable issues … such as Russia’s occupation of Ukrainian territory.”
Israel’s occupation of the Palestinian territories began in 1967, and the last round of peace talks aimed at a two-state solution collapsed in 2014. Since then, Israeli settlement and infrastructure building in the West Bank and East Jerusalem has accelerated, and settler violence against Palestinian communities is at its highest level since records began in 2005.
Last year’s election of the most rightwing Israeli government in history has exacerbated these issues. Of particular relevance to the ICJ referral is the transfer of several aspects of the administration of the West Bank from military control to a pro-settlements civilian minister – a move rights groups point out constitutes de jure annexation.
On the Palestinian side, the Palestinian Authority president, Mahmoud Abbas, lacks democratic legitimacy after clinging to power for 16 years without elections. His administration has also made no serious attempt to rekindle the peace process.
Unlike other ICJ submissions seen by the Guardian, including those of France and Ireland, the UK statement makes no mention of the dire political situation in either Israel or Palestine. It also does not reference relevant UN findings since 2016 that Israel has repeatedly failed to fulfil its obligation to uphold the rights of the Palestinian people and violated international humanitarian law.
A spokesperson for the UK Foreign Office, whose legal director, Sally Langrish, signed the submission, said in a statement: “The UK is committed to working with both Israel and the Palestinian Authority to advance a peaceful two-state solution with Jerusalem as the shared capital. We are deeply concerned by instability in the West Bank and call on all sides to work together to urgently de-escalate the situation.”
Members have until 25 October to make comments on statements to the ICJ submitted by others. If the court accepts the request for an advisory opinion, as is expected, deliberations will last at least a year.
Whether the occupation is still a “temporary” measure will be central to the debate. The court could extend a previous finding of partial annexation, weigh in on allegations of apartheid, and suggest states would be obliged not to recognize or aid the occupation.
Israel has lambasted the ICJ referral, with its envoy to the UN, Gilad Erdan, calling the general assembly vote a “moral stain” that delegitimizes Israel.
The last conclusive action related to Palestine at the ICJ was in 2004, when the court decided Israel’s West Bank security barrier was illegal. Israel rejected the ruling.
An international criminal court (ICC) investigation into alleged war crimes committed by both Israeli army personnel and Palestinian armed groups officially opened in 2021, but is progressing slowly. ICC rulings are only binding for states that recognize its jurisdiction, which Israel does not.
Bethan McKernan is Jerusalem correspondent for The Guardian
