The Advisory Opinion on Palestine is a bad omen for international law - opinion
Since the terrible attacks on October 7, it has seemed as though the international community, led by an elite organization, the United Nations, and its immensely reputable international court system, has time and time again allowed itself to be misled, and its values and principles misused, in a manner that is putting the entire international rules-based order at risk.
The Advisory Opinion regarding the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territory, issued by the International Court of Justice on 19 July 2024 is yet another example.
The advisory proceedings were biased from the start. In December 2022, the UN General Assembly passed by 87 votes to 79, a nine-page resolution condemning Israel in the harshest of terms, declaring almost every action it has ever taken in violation of international law and of Palestinian rights, and requesting the International Court of Justice to issue a legal opinion on the legal consequences of such violations.
The resolution was drafted and sponsored by 32 states of which two-thirds have no diplomatic relations with Israel and several do not recognize Israel as a state. It was the 15th General Assembly resolution condemning Israel that year, compared to 13 resolutions adopted against all other countries combined...
…But while overreliance on United Nations documentation was expected, what came as a complete shock was the extent to which the Court manufactured an entirely new narrative of the Israeli-Palestinian conflict, oftentimes at complete odds with reality. First, in paragraphs 52 and 53, the Court describes the process of Israel becoming a sovereign state. Here is how it describes that process:
“While the Jewish population accepted the Plan of Partition, the Arab population of Palestine and the Arab States rejected this plan, contending, inter alia, that it was unbalanced. On 14 May 1948, Israel proclaimed its independence… an armed conflict then broke out between Israel and a number of Arab States, and the Plan of Partition was not implemented.”
An Unbalanced Plan of Partition. Israel pushing ahead and proclaiming its independence, despite concerns of “unbalance”. And therefore, “armed conflict broke out”, resulting in the Plan of Partition not being implemented.
Stating that Israel proclaimed its independence while omitting that it was de facto recognized as a State by over a dozen countries, including the United States and the Soviet Union, on the same day or just days after, using the neutral phrasing “armed conflict broke out” rather than specifying that Israel was attacked on the morning of 15 May 1948, a day after it became a State, by the armies of Syria, Transjordan, Iraq and Egypt, all serve to remove, or distance, responsibility for the events leading up to the situation now complained of before the Court from the Palestinians and any neighboring Arab states, and placing such responsibility exclusively on Israel...
...And so, hidden in an inconspicuous paragraph in a separate opinion by one of the Court’s fifteen judges, ignored and in all likelihood unread, at least by the general public, is a clear-as-day explanation that the advisory opinion is nothing but a bird’s-eye-view of the Israeli-Palestinian conflict, as seen through the eyes of one particular bird – the United Nations – excluding entirely any “careful consideration of whether Israel’s security concerns may be legally relevant concerning any specific situation.” Needless to say, this crucial disclaimer was not included in either the Court’s majority opinion or the international media reports that followed.
Författarna till texten:
Olivia Flasch is a Legal Consultant in Public International Law, with a particular focus on armed conflicts and international criminal law. She holds a Master of Law (MJur) from the University of Oxford.
Ami H. Orkaby, is a renown international lawyer and former adviser at the Israeli Prime Minister’s Office.
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