JUSTICE - No. 71

17 Spring 2024 Finally, even the Oslo Accords fail to grant the PLO any interim rights over East Jerusalem. The PLO agreed to defer any discussion of Jerusalem to the permanent status negotiations. Therefore, it is fair to ask exactly how and when did East Jerusalem and the Old City morph into “Palestinian” territory. Interestingly, in 1979 the UN Security Council in Resolution 446 (March 22, 1979) referred solely to “the Arab territories occupied since 1967, including Jerusalem.”27 The following year, in Resolution 478, the Security Council added the word “Palestinian,” modifying the formulation to read, “the Palestinian and other Arab territories occupied since June 1967, including Jerusalem.”28 By December 2016, the Security Council in Resolution 2334 had dropped the word “Arab” and modified the formulation yet again to refer to “the Palestinian territory occupied since 1967, including East Jerusalem.”29 But the mere change in formulation conferred no legal rights on the Palestinians regarding East Jerusalem. Determining Legal Consequences The General Assembly resolution asked the ICJ to determine the legal consequences arising from “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.” The sweeping language of the General Assembly’s request regarding Jerusalem is highly troubling. The reference to the “Holy City of Jerusalem” appears to encompass the entirety of the city, including West Jerusalem, which contradicts the Security Council’s implicit recognition of Israeli sovereignty over West Jerusalem in Resolution 242. Furthermore, what exactly is meant by the phrase “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”? The Resolution does not provide any specificity regarding any such measures or legislation. The Palestinians agreed in Oslo that the status of Jerusalem would be reserved for future negotiations as part of the permanent status talks. Jerusalem will be the most sensitive issue for those negotiations. Jerusalem holds intense religious and emotional attachment for Muslims, Christians and Jews. The Temple Mount has been a flashpoint for decades. If there were ever a “compelling” reason for the ICJ to exercise its discretion and decline to issue an advisory opinion, surely it would be to defer to the Security Council and avoid interfering in the incendiary politics of Jerusalem. III: The South Africa Genocide Case In late December 2023, the Republic of South Africa initiated proceedings at the ICJ and requested that the Court “indicate provisional measures” against Israel for alleged violations of the Genocide Convention during the course of its defensive war in Gaza following the October 7, 2023, Hamas massacre in southern Israel.30 The Court immediately accepted jurisdiction and fasttracked the case, hearing oral arguments from South Africa on January 11, 2024, and from Israel the following day. South Africa’s petition recited a laundry list of unproven allegations against Israel and demanded that the Court indicate provisional measures, including a ceasefire, in a blatant attempt to bypass the UN Security Council where the U.S. had vetoed a ceasefire resolution on December 8, 2023. On January 26, 2024, the Court issued its ruling. The Court found “the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.”31 The Court indicated various provisional measures but did not include a ceasefire among them.32 The Court issued a supplemental order on March 28, 2024 requiring Israel to ensure the flow of humanitarian aid to Gaza.33 Following this, the case was 27. UN S.C. Res. 446, U.N. SCOR 34th Year, U.N. Doc. S/ RES/446 (Mar. 22, 1979). 28. UN S.C. Res. 478, para. 2, U.N. SCOR 35th Year, U.N. Doc. S/RES/478, at 14 (Aug. 20, 1980), available at https:// www.securitycouncilreport.org/atf/cf/%7B65BFCF9B6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20SRES%20 478.pdf 29. UN S.C. Res. 2334, U.N. SCOR 72nd Year, U.N. Doc. S/RES/2334 (Dec. 23, 2016), available at https://www. un.org/webcast/pdfs/SRES2334-2016.pdf 30. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), I.C.J. Verbatim Record CR 2024/2 (Dec. 28, 2023). 31. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Order, I.C.J. Verbatim Record CR 2024/2, ¶ 54 (Jan. 26, 2024). 32. Id., ¶ 86. 33. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Order (March 28, 2024).

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