Rethinking International Law After Gaza Symposium: Israel must be Expelled from the United Nations

[Saul J. Takahashi is Professor of Human Rights and Peace Studies at Osaka Jogakuin University. From March 2009 to May 2014, Saul served as Deputy Head of Office of the Office of the UN High Commissioner for Human Rights in Palestine.]

The resolution adopted by the United Nations General Assembly (UNGA) on 18 September 2024, subsequent to the Advisory Opinion by the International Court of Justice (ICJ) on the legal consequences of Israeli policies and practices in the Palestinian territories conquered by Israel in 1967 (the “Occupied Palestinian Territories” – OPT) is an important one. In the resolution, the UNGA welcomed the ICJ’s recognition that the wide array of Israeli policies aimed at the colonization of the West Bank (including East Jerusalem) “amount to annexation”, in flagrant violation of the international prohibition of the acquisition of territory by the use of force. The UNGA also cited the ICJ’s condemnation of Israeli policies as a violation of the prohibition of apartheid in the International Convention on the Elimination of All Forms of Racial Discrimination. 

The Resolution concludes with the declaration that the UNGA “strongly deplores the continued and total disregard and breaches by the Government of Israel of its obligations under the Charter of the United Nations”, and that “Israel must be held to account for any violations of international law” in the OPT. It is welcome that the UNGA recognized explicitly that Israel has enjoyed impunity for its violations of international law for far too long.

Despite its strengths, the measures announced by the UNGA are inadequate given the gravity of the situation in Palestine, and in particular the urgency in the midst of a genocide live-streamed since October 2023. The UNGA did call on member states to implement economic sanctions against Israel, including the halt of arms transfers. However, while demanding clearly that Israel end the occupation of OPT, the UNGA gave Israel twelve months to comply – an unacceptably lengthy period of  time given the ongoing violence perpetrated by Israel throughout the OPT. 

In the following essay, it is submitted that it is high time for the international community to pursue the expulsion of Israel from the UN. Expulsion is warranted not merely because of Israel’s blatant disregard of the international legal standards the UN exists to uphold, but is also an essential act to maintain the integrity of the organization as a whole. 

Israeli Defiance of the UN and Obligations under the UN Charter

The UN is facing a crisis: a rogue member state brazenly thumbing its nose at the organization, as well as the international order which has the organization at its core. Israeli political and military leaders openly express contempt for the UN. Far from affording the UN cooperation, Israel has, in particular since 7 October 2023, targeted UN facilities and UN humanitarian convoys for attack, with the UN Relief and Works Agency (which exists to provide assistance to Palestinian refugees) bearing the brunt of the violence. As of 23 September 2024, Israel has attacked UNRWA staff and facilities on at least 464 instances, killing at least 224 staff. 

Though Israeli violence against UNRWA has accelerated since 7 October 2023, Israeli vitriol targeting the agency is nothing new. For years Israel has campaigned to shut down UNRWA, advancing unsubstantiated claims that the agency incites hatred against Israel and supports terrorism. Indeed, a bill currently in the Israeli parliament would officially designate UNRWA a terrorist organization and cut ties with the agency. As a rule, Israel also refuses to co-operate with human rights procedures and investigations of the UN Human Rights Council, and regularly accuses mandate holders of anti-Israeli bias. Despite Israel’s clear and longstanding defiance of the UN, the organization has refrained from holding Israel accountable in any meaningful way. 

More importantly for the purpose of the current paper, Israel has refused to carry out the Charter obligations of all UN member states to abide by resolutions of the UN Security Council (UNSC). Article 4 of the UN Charter states that membership is open to all “peace loving states which accept the obligations” in the Charter. Included amongst those obligations is the obligation, stipulated in Article 25 of the Charter, to “accept and carry out” the decisions of the Security Council.

Article 6 of the Charter states that a member state that “has persistently violated the Principles contained in the present Charter may be expelled … by the General Assembly upon the recommendation of the Security Council”. There is no explicit text in Article 6 limiting its application to violations of Article 25, and it is certainly arguable that Israel’s long-standing violations of the principles of the UN, in particular the “principle of equal rights and self-determination” (Charter Article 1.2, enumerating the purposes of the organization) of the Palestinian people, already provide ample grounds for expulsion under Article 6. Nevertheless, Article 25 provides more clear reasoning for the UN must act. 

Israel has for decades serially violated UNSC resolutions. Even putting aside the UNSC resolutions adopted since 7 October 2023, Israel has refused to comply with more than two dozen UNSC resolutions on OPT since 1967. The relentless Israeli colonization of the West Bank, for example, violates numerous UNSC resolutions, including Resolution 242 (1967), which “[emphasizes] the inadmissibility of the acquisition of territory by war”; language which, by and large, is repeated in numerous further resolutions (see e.g. 252 (1968); 267 (1969); 271 (1969); 298 (1971); 478 (1980); 681 (1990); and 2324 (2016). Likewise, Israel’s unilateral annexation of East Jerusalem openly violates numerous UNSC Resolutions, such as Resolution 252 (1968); 267 (1969); 271 (1969); 298 (1971); 476 (1980); 478 (1980); 672 (1990) and 2324 (2016). Resolution 252 states in no unclear terms that “all legislative and administrative measures taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status”. Resolution 446 states that “establishing settlements in the Palestinian … territories occupied since 1967 have no legal validity”, language that was repeated by the UNSC most recently in Resolution 2334 (2016).

Israel has, of course, not even pretended to comply with these resolutions. At the UNSC in 2016, the Israeli ambassador called Resolution 2334:

“…the peak of hypocrisy. The Council had wasted time to condemn Israel for building homes in the Jewish people’s historic homeland. … Asking every voting member who had given them the right to issue such a decree, denying ‘our eternal rights in Jerusalem’, [the Israeli Ambassador] expressed full confidence in the justice of Israel’s cause and the righteousness of its path.” 

Indeed, with every new resolution, Israel accelerates the colonization of the West Bank (including East Jerusalem), and government ministers have openly stated that Israel should create colonial settlements in Gaza after the military offensive is over. 

Other UNSC Resolutions Israel has flouted without consequence demand compliance by Israel with standards of international humanitarian law, in particular the Fourth Geneva Convention applicable in situations of occupation (See Resolutions 446 (1979); 468 (1980); 468 (1980); 471 (1980); 478 (1980); 484 (1980); 592 (1986); 605 ((1987); 607 (1988); 636 (1989); 672 (1990); 673 (1990); 681 (1990); 694 (1991); 726 (1992); 799 (1992); 904 (1994); 1322 (2000),; 1544 (2004); and 2334 (2016)) as well as protection for Palestinian civilians (See Resolutions 607 (1986); 636 (1989); 681 (1990); 694 (1991); 726 (1992); 799 (1992); 904 (1994); 1073 (1996); and 1322 (2000)).

Though some have argued that UNSC Resolutions are only binding if they are adopted under Chapter VII of the Charter (an argument seemingly advanced recently by the United States, in attempting to shield Israel from international criticism), that is patently not the case. In 1970, the UNGA requested the ICJ for an Advisory Opinion on the legal consequences of Namibia’s continuing occupation by apartheid South Africa. In its Opinion, the ICJ struck down the notion that adoption under Chapter VII was necessary for binding effect, stating succinctly: “when the Security Council adopts a decision … it is for Member States to comply with that decision, including those members of the Security Council which voted against it and those Members of the United Nations who are not members of the Council. To hold otherwise would be to deprive this principal organ of its essential functions and powers under the Charter.” 

The Court then went on:

A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence. Once the Court is faced with such a situation, it would be failing in the discharge of its judicial functions if it did not declare that there is an obligation, especially upon Members of the United Nations, to bring that situation to an end. 

The Court did find that an assessment of the language of a particular resolution was necessary to ascertain its binding nature, and suggested that the Security Council’s specific mention of Article 25 was key in its determination that the relevant resolutions created legal obligations. However, it is submitted that the strong language used in UNSC resolutions on Israel is in the overwhelming majority of cases equally unambiguous, and is clearly meant to impose an obligation to act on the offending state – in this case, Israel.

Expulsion in the South Africa Case

No member state has ever been expelled from the UN. However, the organization came very close in the case of South Africa – a case with obvious parallels to that of Israel. The direct trigger for the debate at the UN regarding the expulsion of South Africa was not only the growing international opprobrium towards South African apartheid, but also its continuing occupation of Namibia – an occupation recognized by the ICJ as unlawful, as in the case of the Israeli occupation of the OPT. 

In 1969, the Security Council adopted Resolution 269, stating in its preamble that it was “[m]indful of its responsibility to take necessary action to secure strict compliance with the obligations entered into by States Members of the United Nations under the provisions of Article 25 of the Charter”. The Council went on to “[condemn] the Government of South Africa for its refusal to comply with [the UNSC] and for its persistence defiance of the authority of the United Nations” (emphasis added), and “[decided] that the continued occupation of the Territory of Namibia constitutes an aggressive encroachment on the authority of the United Nations, a violation of the territorial sovereignty and denial of the political integrity of the people of Namibia” (emphasis added). The Council then stated that, should South Africa refuse to comply, the UNSC would “meet immediately to determine upon effective measures” to be taken. It is noteworthy that the UNSC condemned South Africa not only for the country’s noncompliance with its resolutions, but for its lack of respect for the authority of the organization – an issue clearly relevant in the case of Israel. 

Eventually, South Africa was not expelled from the UN: the three Western Permanent Members of the UNSC – the US, the UK, and France – vetoed UNSC action, making expulsion under Article 6 impossible. Faced with UNSC inaction, in 1974 the UNGA voted to refuse to recognize the credentials of the South African delegation, on the basis that the delegation of the apartheid government was not representative of the entirety of the country’s population. That action, which barred South Africa from participation in the UNGA, was not based on the Charter, but on the UNGA Rules of Procedure, specifically the Credentials Committee of that body. The UNGA therefore maneuvered around the Charter requirement of an UNSC recommendation.

Conclusion

There is a pressing need to hold Israel accountable, not only for its longstanding violations of international law, but specifically for its longstanding refusal to abide by its Charter obligations. In the face of this recalcitrance, the UN must move towards expelling Israel from the organization, not only because the UN exists to uphold international law, but also to maintain the UN’s integrity as an organization. The persistent, open violations by Israel of binding UNSC resolutions cannot go unpunished. The current situation, where Israel openly accuses the UN of bias, refuses to cooperate with the organization on multitude levels, defies binding orders of the ICJ, physically attacks UN premises and staff, and even moves towards designating a UN agency as a terrorist organization, is a clear threat to the authority of the UN – an issue which the UNSC raised explicitly in the case of South Africa. To allow the situation to continue would show that international legal norms, and rules of the UN binding member states, are applied on the basis of double standards: specifically, that states allied to powerful Western countries are afforded impunity.

Given the protection afforded to Israel in the UNSC by the United States, the path to expulsion would appear daunting. The approach taken by the UNGA in the South African case, i.e. exclusion of Israel on the basis of the accreditation process, may be a practical step forward on an interim basis.Whichever path is taken, it is paramount that states hold Israel responsible for its international crimes in a meaningful manner.