10 No. 69 JUSTICE he United Nations General Assembly has requested an advisory opinion from the International Court of Justice on the legality of the Israel “occupation of Palestinian territory occupied since 1967.” Should Israel participate in the proceedings? In addition to its primary function of adjudicating disputes between states, the International Court of Justice in the Hague (ICJ) can also render advisory opinions to the UN General Assembly and to other UN bodies.1 On December 30, 2022, the UN General Assembly adopted a Resolution requesting an advisory opinion from the ICJ on two questions: (a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to selfdetermination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures? (b) How do the policies and practices of Israel … affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?2 ICJ advisory opinions are not binding on states, nor are they binding on the UN General Assembly which requested the opinion. Nevertheless, they are considered as binding by the UN Secretariat and UN administration. Moreover, many UN bodies and international organizations accord much credence and legal weight to ICJ advisory opinions. Organizations that have a record of anti-Israel actions, such as the UN Human Rights Council, may want to rely on such an advisory opinion to justify future anti-Israel activity. The UN General Assembly Resolution was initiated by the Palestinian delegation to the UN as part of a concerted effort to delegitimize Israel. Victor Kattan, a well-regarded Palestinian international lawyer, commented that if the ICJ gives an advisory opinion as requested, “Western governments may also find it harder not to put pressure on Israel to end the occupation.”3 Some have argued that it is better that the Palestinians engage in international legal maneuvers rather than in terrorism, though a response could be that they continue at the same time to support terrorism by granting financial inducements to the families of terrorists, the so-called “pay to slay” policy. It is not the first time that the Palestinians have initiated such a tactic. In 2003, the UN General Assembly requested an advisory opinion from the ICJ as to “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory.”4 The ICJ rendered an opinion that the construction of the “wall” was illegal and violated Palestinian human rights. The Court concluded that it would not examine the wall in the context of Israel's right to self-defense since the terrorist attacks, which the “wall” was aimed to prevent, did not emanate from a foreign state. This conclusion was subject to much criticism by international lawyers, and it is possible that this criticism will temper the enthusiasm of the International Court to again be used as part of a Palestinian political campaign. Although posed in legal language, the Court is, in fact, being asked to give an opinion on a highly divisive political issue. The ICJ has discretion as to whether to render an advisory opinion, but in the past, it has never declined such a request from the UN General Assembly. The secretariat of the Court has already requested extra financing to enable the Court to prepare an advisory opinion on the issue. In this case, the Court may, however, take into consideration that the resolution requesting an Request for ICJ Advisory Opinion T Robbie Sabel 1. UN Charter, Art. 65. 2. UN GA Res. A/Res/77/400 DR 1, Dec. 30,2022, adopting the recommendation of the UNGA Fourth Committee. 3. Victor Kattan, “Thanks to Putin, the world has noticed the occupation,” HAARETZ, English ed., Nov. 21, 2022. 4. UN GA Res. ES-10/14, adopted Dec. 8, 2003.
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