Sources in Israel have said that Israel’s occupation of the West Bank will almost certainly be referred to the International Court of Justice in The Hague for its opinion, following a draft resolution passed by a special UN committee on decolonization.
The General Assembly is expected to pass the resolution by a solid majority when it meets in two weeks, and it is considered unlikely at the moment that the countries that submitted the draft resolution will withdraw it at the last minute. Efforts by Israel and the United States to pressure Palestinian Authority President Mahmoud Abbas to retract the proposal have failed. A phone call by Israel’s President Isaac Herzog with Abbas on Friday at the request of Prime Minister Yair Lapid failed to dissuade Abbas.
The moment the PA decided to bring the matter to a vote before the special committee, Israel realized it could not stop it from passing. Instead, Israel’s ambassador to the United Nations, Gilad Erdan, worked together with the U.S. delegation to expand the coalition of countries that would vote against or abstain when the matter reaches the ICJ in The Hague.
Two countries disappointed Israel in this regard: Ukraine, which voted for the Palestinian proposal, despite Israel’s vote in favor of Ukraine with regard to the Russian assault, and Britain, which abstained. Allies including Australia, Canada, Germany and Italy voted against the proposal.
The Palestinian request with regard to the occupation is not new. It includes 19 clauses, most of which have been debated and brought to a vote before. The call to approach the ICJ for an opinion is a new clause this time, expressing a new line the PA is taking: in the absence of diplomatic negotiations with Israel, to bring international pressure to bear on Israel through the UN institutions.
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The Special Political and Decolonization Committee examines a wide variety of issues, but among its official tasks is also the Israeli-Palestinian situation as it appears in reports by the United Nations Relief and Works Agency for Palestinian Refugees in the Near East, the settlements and their impact on Palestinian human rights.
“Israel must not cooperate with the process in the court in The Hague, because it must not legitimize a distorted legal process in a court whose judges were selected politically by countries that are mostly hostile to Israel,” Erdan said on Saturday night.
According to Erdan, Israel would “work with dozens of countries that we have persuaded not to support this move,” given that a verdict against Israel “might have negative political and economic implications against Israel.” Erdan said Israel would ask these countries to submit opinions to the court “explaining how destructive its involvement could be. In any case, no external body will restrict Israel and force decisions that are bad for Israel,” he added.
The ICJ works mainly among countries (as opposed to the International Criminal Court, which examines alleged war crimes and offenses by individuals). It was founded in 1946 after World War II, and has two functions: To decide disputes between countries that agree to accept its decision, and to render legal decisions at the request of the UN General Assembly. Opinions of the ICJ can include operative directives or proposals for sanctions, but its rulings do not have a binding status.
Nevertheless, Israel is concerned over the custom of quite a few UN member states to adopt the court’s rulings and act accordingly. The ICJ has 15 judges, but its work is considered more diplomatic than juristic: within Israel, it is claimed that ICJ judges are appointed as part of diplomatic deals, and that some of the judges have openly declared political positions and quite often reflect those positions in their rulings toward the countries they represent, and not including purely legal considerations.
In 2004, the ICJ was asked to render an opinion on construction of the separation barrier between Israel and the West Bank. Israel officially boycotted the proceedings, arguing that the line of the fence, which was changed at that same time, was changed without reference to the ICJ’s work. Israel’s Foreign Ministry is proud that it was able to neutralize some of the court’s conclusions. Another initiative to approach the ICJ, following the Marmara flotilla, did not come to fruition.
The entire process, with all its bureaucracy, might take months or even a few years, although officials involved in the court’s work say it might publish a document in about a year from the moment it starts work on the matter.
Ronny Lesho-Yaar, Israel’s former ambassador to the United Nations in Geneva and the European Union, said Israel should not take the court lightly, despite its criticism. "I recommended to all those involved in the issue to take this process seriously, to prepare properly and avoid clashing with the court,” he said, adding: “In the end it will publish its ruling and its conclusions will not end there.”