Can the ICJ Resist the Temptation to Enter the Israel-Hamas Fracas?

by Julian Ku

According to the Guardian, the ICJ may soon have a chance to opine on the numerous legal issues arising out of the current Israel-Hamas conflict in Gaza.  

The UN general assembly, which is meeting this week to discuss the issue, will consider requesting an advisory opinion from the international court of justice, the Guardian has learned.

“There is a well-grounded view that both the initial attacks on Gaza and the tactics being used by Israel are serious violations of the UN charter, the Geneva conventions, international law and international humanitarian law,” said Richard Falk, the UN’s special rapporteur on the Palestinian territories and professor emeritus of international law at Princeton University.

“There is a consensus among independent legal experts that Israel is an occupying power and is therefore bound by the duties set out in the fourth Geneva convention,” Falk added. “The arguments that Israel’s blockade is a form of prohibited collective punishment, and that it is in breach of its duty to ensure the population has sufficient food and healthcare as the occupying power, are very strong.”

A Foreign Office source confirmed the UK would consider backing calls for a reference to the ICJ. “It’s definitely on the table,” the source said. “We have already called for an investigation and are looking at all evidence and allegations.”

A cynic might wonder whether there is much significance to a judgment from a court which has no obvious enforcement powers (assuming the Security Council is not going to act) and is issuing a non-binding opinion at that.  But whether binding or advisory, such opinions mainly serve to rally public opinion or action, not actually to resolve a dispute.  

In theory, the ICJ can refuse the General Assembly’s request. Under Article 65(1):

1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.

Indeed, it has several grounds for refusing to issue an opinion, such as a lack of jurisdiction, the lack of a legal question, the inability of the Court to conduct a meaningful factual investigation, or simply its inherent discretion.  (See this useful discussion from ASIL Insights on this point). 

Indeed, almost all of those reasons weigh against an ICJ decision here, but don’t count on any judicial restraint.  Intervening says to the world: “we are relevant! we matter!”  But any opinion is likely to be a mess, based on faulty facts (who the hell knows what is really going on?) and based on a variety of barely legal questions.  The ICJ has never distinguished itself in its fact-finding capacity, and this one would be a real doozy.  

Finally, Israel is always at an inherent disadvantage in these proceedings, since Hamas or Gaza is not a state. Hence, any opinion will be completely about Israel’s obligations and will likely ignore Hamas’s violations since they are, for the purposes of the decision, simply a group of people living in Israeli-occupied territory to whom Israel owes legal duties and obligations. As a matter of international law, Hamas doesn’t formally have any rights, responsibilities, or duties.  So Israel will be outraged by any opinion, and then ignore it.  

The only possible hope: Can new ICJ member Christopher Greenwood save the ICJ from itself?

8 Responses

  1. “There is a consensus among independent legal experts that Israel is an occupying power and is therefore bound by the duties set out in the fourth Geneva convention,”

    Since when?

    Everyone I’ve talked to holds the opposite.

    I personally don’t think the issue’s even close, on the facts.

  2. M. Gross,

    What do the facts have to do with it?

    It’s a plain fact that ALL of Palestine has been under Israeli occupation since 1967, including the Gaza ghetto / bantustan prior to this latest Israeli assault. It’s equally a fact that Israel has been occupying a large part of Palestine since 1948 — the part that is called “Israel”. The question of Geneva applying to the occupation isn’t a matter of facts, but of law:

    “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”

    Palestine per se isn’t a high contracting party, though Britain, Jordan and Egypt are. Geneva was signed in 1949, after Britain withdrew from Palestine. Not sure when Jordan or Egypt ratified Geneva, but the real question is: what is the status of Palestine?

    The only truthful answer is: a territory / colony which has been under predatory foreign military occupation since 1918… or a lot longer if one regards the Turks as predatory foreign occupiers.

    The situatiuon is a legal absurdity and a damned disgrace. The problem has been obvious right from the start:

    “Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country[.]”

    As if the Balfour declaration of November 2, 1917, and indeed, the League mandate itself, did not “prejudice the civil and religious rights of existing non-Jewish communities in Palestine”  on their face.

    The results speak for themselves: from 1918 until now it has been nothing but a disgraceful sham — and all the political BS that’s piled up over the interval doesn’t change the facts.

  3. I’m not sure how you could occupy an entire country while not having a home country.  Wouldn’t that make you the government of said country, not the occupier?  In that case, wouldn’t the Palestinians be waging civil war against Israel?

    In any case, I’m guessing the ICJ will take it up.  Recall, they already gave an advisory opinion on the security wall.

  4. M. Gross,

    Well that’s just point: it an absurd situation without any rational basis whatever. Of course it’s a civil war, to whatever extent the Israelis are actually natives of Palestine. It’s also a war of resistance against colonialism, ethnic cleansing, and apartheid.

    And the problem I have here is that I see absolutely no reason to suppose that the opinions of Turkey, Britain, France, the UN, or a racist colony like Israel concerning what should or should not be done with Palestine should carry more weight than the indigenous population, who’ve been under continuous foreign domination for well over 500 years.

    The hypocrisy of it is astonishing, especially the parts concerning the suffering of the Jews and the ancient right of the Jewish people to Israel. The Palestinians were there before the Jews even in ancient times, and the suffering of the Palestinians could not be more evident.

    I don’t think the Israelis have any credibility at all. The political CW of the two major parties here in the US on the topic  has always been predicated on the need for pandering to Jewish voters, going all the way back to Harry Truman’s narrow victory over Dewey in 1948.

    What was the motivation of the Balfour declaration in the first place? And what gave Britain, France, or the League of Nations any legitimate power to make any such declaration concerning the RIGHTS of the Palestinians in the first place?

    This much is very clear to me: there isn’t anyone who supports Israel who’d accept what’s been done to the Palestinians over the last 90 years if it was done to them and their families. Not one.

  5. You are right Charles. It is just beyond me why Belfour gifted another people’s land and country to another, just because he was a victor in a war. The Jews of Europe should have been a European problem, not the Palestinians. The Europeans mistreated and murdered the Jews of Europe, not the Arabs, not the Muslims and certainly not the Palestinians. But at the end, the ever thoughtful Europeans, as well as the American administrations, solved the “Jewish problem” in an entirely different way. By creating another problem and forcing millions of Palestinians to live homeless for the past sixty years. You are right, Palestine as a whole is occupied.

  6. Ali,

    There’s a pretty good summary of the thing on Wikipedia here:

    But the bottom line was the British had their own reasons… and just as in Africa, India, and South East Asia, their least concern was what the “Wogs” thought about anything.

  7. Thanks Charles.

    After this ugly war ends, and the Israeli Wehrmacht stop its wholesale murder of Palestinians, the world should take a serious look at the crimes committed by Israel, and its criminal leaders,not just now, but through out the sixty years of occupation of Palestine.  

  8. I am mostly interested in the facts. What is “hiding behind civilians”? For example.

    I had the impression, from what the media said, that Israel had two choices: to use guns and knifes, one soldier against the other, face to face, which would not have done any damage to civilians, and to use other weapons with great effect to evererybody in a certain region aka bombs and rockets.

    Did Israel have the right to be effectiv? The legal qualification comes second.

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