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