11 Spring 2023 opinion was adopted by a majority that was far from overwhelming. Seventy-seven states either voted against the resolution or abstained. If the International Court nevertheless decides to give an advisory opinion, the secretariat of the Court will invite all states, members of the United Nations, to submit opinions or comments on the issue and to appear before the Court if they so wish.5 In the Wall case, Israel decided not to officially submit comments as to the substance or to appear before the Court, but to limit itself to submitting a legal brief as to why the Court should decline to give an advisory opinion. This conduct was based on the apprehension that by raising arguments as to the substance of the issue, it would legitimize the procedure. In its legal brief, Israel argued that the issue was political and not legal and that it involved the rights of Israel, and Israel had not agreed to request an opinion from the Court. Israel further argued that the request for an advisory opinion on what was essentially a dispute between Israel and the Palestinians was an attempt to circumvent the need for the parties to agree to submit an issue to a judicial body. Israel also argued that since the Security Council was dealing with the issue, it was not within the competence of the General Assembly to request an advisory opinion and that the Oslo agreements had stipulated an agreed upon mechanism for solving disputes. Several western states also recommended to the Court not to render an opinion on the issue. The Court nevertheless decided to render an opinion, claiming that it was not adjudicating the dispute between Israel and the Palestinians, but only giving a legal opinion to the UN General Assembly. It is to be hoped that the Court will decline to render an advisory opinion. If the Court does decide to render an opinion, the Israeli government will face the same dilemma as in the Wall case. It might be worthwhile, this time, for Israel to submit comments on the substance, in addition to again arguing that the Court should decline to give an opinion. There are several fair and impartial judges on the Court, and they should be made aware of Israeli legal arguments. In the Wall case, friendly judges on the Court heard only arguments from the opposing side, and this appears to have influenced their decision. It is not clear that Israel's absence from the Court in the Wall case did, in fact, delegitimize the proceedings. The many criticisms of the substance of the Court's decision in the Wall case were not related to the legitimacy of the proceedings. Israel has a strong legal case. The legal issues that Israel can raise include the fact that this is a sui generis situation. Israel has security rights in the territories that derive from the Oslo agreements with the PLO itself. It may be worthwhile reminding the Court that the Oslo agreements were signed by the PLO representing the Palestinian people, and witnessed by representatives of the United States, Russia, Egypt, Jordan, the European Union and Norway. Furthermore, the agreements were endorsed by the UN General Assembly6 and earned the negotiators the Nobel Peace Prize. Other issues that can be raised include the fact that military occupation is not illegal under international law, and that the UN Security Council has never designated Israeli occupation as illegal. The Israeli government has a first-rate team of international lawyers. It might be wise to utilize them in this instance to present the case for Israel, rather than trying to defend Israel's position by silence in abstentia. n Robbie Sabel is a professor of international law at the Hebrew University of Jerusalem, and a member of the Academic Advisory Board of Justice. 5 UN Charter, Art. 66. 6. UN Doc. ES-10114, adopted 8 December 2003.
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