JUSTICE - No. 71

12 No. 71 JUSTICE ntroduction Enshrined in the UN Charter, the International Court of Justice (ICJ) is the UN’s judicial organ.1 Unfortunately, the Court has emerged during the past two decades as a hotspot in the lawfare campaign against Israel. The ICJ entered the fray in July 2004 by brushing aside objections to its jurisdiction and issuing an advisory opinion declaring portions of the West Bank separation barrier illegal. The Court also ventured beyond the issues raised in the case and declared Israeli settlements illegal. The ICJ’s 2004 advisory opinion set the stage for two recent cases before the Court. The first case involves South Africa’s accusations that Israel committed “genocide” in Gaza during its war of self-defense following Hamas’s massacres, sexual violence and taking of hostages on October 7, 2023. The second case involves the UN General Assembly’s December 2022 request to the ICJ for another advisory opinion, this time addressing the legality of the occupation and the legality of Israel’s actions in Jerusalem since 1967. The South Africa case and the General Assembly case both signal a troubling new phenomenon: Israel’s adversaries, wary of a U.S. veto in the Security Council, are using the ICJ instead as their preferred forum for issues of politics, war, and peace that should be the sole province of the Security Council. Rather than dismissing such efforts, the ICJ has embraced the opportunity to play a larger role on the world stage, raising questions about its proper mandate as the “principal judicial organ of the United Nations.” I: The ICJ and Political Disputes The Palestinian lawfare effort has found sympathy at the ICJ. The Court has waded into the Israeli-Palestinian dispute three times in the last two decades, even though the conflict is fundamentally a political dispute which should be deemed non-justiciable and beyond the ICJ’s jurisdictional purview.2 However, the Court argues that its occasional practice of accepting cases where “a legal question has political aspects” provides a basis for its jurisdiction over such disputes.3 The ICJ’s willingness to intervene in the IsraeliPalestinian conflict stands in stark contrast with the views of two of the Court’s most distinguished jurists, Judges Sir Percy Spender and Sir Gerald Fitzmaurice. In their dissenting opinions in the 1962 Namibia (South West Africa) cases, Judges Spender and Fitzmaurice cautioned the Court against taking jurisdiction over political cases, no matter how tempting or high-profile the cases might be.4 The ICJ’s Advisory Jurisdiction and the IsraeliPalestinian Conflict Article 65(1) of the ICJ Statute lays the foundation for who may request an Advisory Opinion, stating that “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.” The ICJ has described its advisory jurisdiction as existing to “offer legal advice to the organs and institutions requesting the opinion.”5 In the Nuclear The Legal War Against Israel at the International Court of Justice Steven E. Zipperstein 1. UN Charter, arts. 92-96. 2. South West Africa Cases (Eth. v. S. Afr.; Liber. v. S. Afr.), Joint Dissenting Opinion of Sir Percy Spender and Sir Gerald Fitzmaurice, 1962 I.C.J. 319, 466 (Dec. 21); see also J. Odermatt, “Patterns of Avoidance: Political Questions Before International Courts,” 14 INT’L J.L. IN CONTEXT 221–236 (2018). 3. See e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9), ¶ 41 [hereinafter: the “Wall Advisory Opinion”]. The Wall case presented the opposite situation – a purely political case in which the Palestinian side successfully injected enough of a “legal” flavor to give the ICJ a colorable basis for exercising its advisory jurisdiction. 4. South West Africa Cases (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections, 1961 I.C.J. 319, 466 (Nov. 9); Joint Dissenting Opinion of Sir Percy Spender and Sir Gerald Fitzmaurice. 5. Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 236 (July 8), ¶ 15. I

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