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In December 2022, the UN General Assembly invited the International Court of Justice (ICJ) to render an advisory opinion on the “legal status of the occupation.” In a resolution titled “Israeli practices and settlement activities affecting the rights of the Palestinian people and other Arabs of the occupied territories,” the UNGA called on the ICJ to “render urgently an advisory opinion” on Israel’s “prolonged occupation, settlement and annexation of Palestinian territory.” (The resolution was adopted 87-26 with 53 abstentions.)
In February 2023, the ICJ announced it would proceed with the case and set a deadline for July 25 for written submissions.
This anti-Israel move is, to a significant degree, the product of lobbying for over a decade by non-governmental organizations (NGOs) and UN officials, and follows the template established in 2004 with the ICJ advisory opinion on Israel’s anti-terror separation barrier. In 2007, anti-Israel activist John Dugard, then UN “Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967” issued a report, calling on NGOs and UN bodies to examine: “What are the legal consequences of a regime of prolonged occupation with features of colonialism and apartheid for the occupied people, the occupying Power and third States?”
Supporting Dugard’s political initiative, in 2009, a group of activists and NGOs – including Al-Haq, Adalah, Virginia Tilley, and Michael Sfard – published a report under the auspices of the South African Human Sciences Research Council and funded by the South African government calling for another ICJ advisory opinion to investigate Israel’s alleged engagement in the crimes of apartheid and colonialism. Dugard’s proposed question and the subsequent report by HSRC closely mirror the current question posed before the ICJ.
Additionally, in 2013, Birzeit University, alongside the Civic Coalition for Palestinian Rights in Jerusalem (CCPRJ) and the Decolonizing Palestine Project, held a conference featuring NGO officials to discuss how to implement the apartheid label strategy at the ICJ and the International Criminal Court (ICC).
Throughout, the NGOs discussed below have been a central part of the Palestinian campaign to exploit international institutions and legal bodies to “internationalize” its conflict with Israel. This network of European-funded NGOs have also been campaigning to advance the prosecution of Israeli officials at the ICC and in some cases have received EU and European-government explicitly for this objective. This report examines the role of Palestinian, Israeli and European NGOs in the latest effort to use the ICJ to advance this form of political warfare.
- In December 2022, PHROC1 published a statement “staunchly support[ing] the UN General Assembly Request for an International Court of Justice Advisory Opinion on the Consequences of Israel’s Prolonged Occupation of Palestine.” The statement urged the ICJ to “use this advisory opinion to support the Palestinian people as a whole, who remain under the domination of Israel’s discriminatory laws, policies and practices.”
- On December 17, PHROC sent letters to all “Member States who had previously voted on the draft resolution at the Special Political and Decolonization Committee (Fourth Committee)” calling on them to support the referral of the request to the ICJ.
- In 2009, Al-Haq Legal Researcher John Reynolds was a “Principal Contributor” on a report calling for another ICJ advisory opinion to investigate Israel’s alleged engagement in the crimes of apartheid and colonialism. (See above for more information.)
- In May 2013, Al-Haq General Director Shawan Jabarin participated in a Birzeit conference that discussed how to implement the apartheid strategy at the ICJ.
- On December 20, 2022, Al-Haq head of research and advocacy Susan Power published an article claiming that “for the State of Palestine, the International Court of Justice offers “a peaceful and legitimate choice” for freedom.”
- In December 2022, Al-Haq published a press release “welcom[ing]” the UN General Assembly vote and called for Third States to “fully commit to the legal process at the International Court of Justice and work towards advancing the calls of the Palestinian people, for full self-determination and freedom from Israel’s settler colonial apartheid rule, and the ending of the permanent annexationist military administration, masquerading as a belligerent occupation.”
- On January 27, 2023, Power participated in a webinar hosted by Law4Palestine titled “On the Table of the ICJ: The Legality/Illegality of Israeli Occupation and the Subsequent International Responsibility.” According to Power, “it is imperative that third states would fully commit to this process and that the international Courts of Justice also work towards advancing the cause of the Palestinian people for full self-determination and their right of return and take all necessary steps to dismantle Israel’s military administration of the occupied territory.”
- In December 2022, PCHR published a press release “welcom[ing]” the UNGA resolution as a “step in the right direction towards holding Israel accountable for its ongoing oppression and suppression of the Palestinian people.” The press release quoted PCHR Director Raji Sourani who said, “This is a unique juncture legally and politically in the ongoing struggle of the Palestinian people for their self-determination and independence. It gives the Palestinians an upper hand morally and legally in supporting their just and fair cause and that can be felt obviously by the action and reaction and the pressure amounted by U.S and Israel on many states to vote against the resolution.”
- In January 2023, PCHR published a press release “Condemn[ing] New Israeli Steps against PA in Response to Latter’s Moves at ICJ.” According to PCHR, “It is unacceptable that double standards continue, and it is shameful to see most Europe abstain or vote against the General Assembly’s resolution to seek the ICJ’s opinion. It is such a shame that Europe stands with Israel against the international law! We want nothing from Europe more than standing with its principles and morals away from any selectivity and politicization and it is time to do so. The world must take immediate steps against Israel’s international impunity and end the flagrant denial of the Palestinian legitimate rights. Now is the time to isolate and boycott Israel’s apartheid similar to the boycott of the former apartheid regime in South Africa.”
- On January 2, 2023, Al Mezan “welcome[d]” the UNGA resolution, stating that “its adoption is a significant milestone in the struggle against Israel’s apartheid settler-colonial regime.”
- On January 9, 2023, Al Mezan condemned “punitive measures imposed by new (sic) Israeli government against the Palestinian Authority…following the United Nation (UN) General Assembly’s formal request for the International Court of Justice (ICJ) to issue an advisory opinion on Israel’s prolonged occupation of Palestinian territory.”
- In 2009, Adalah lawyer Fatmeh El-Ajou and Adalah’s and International Advocacy Director Rina Rosenberg were “Principal Contributors” on a report calling for another ICJ advisory opinion to investigate Israel’s alleged engagement in the crimes of apartheid and colonialism. (See above for more information.)
- In May 2013, Adalah General Director Hassan Jabareen participated in a Birzeit conference that discussed Palestinian lawfare tactics against Israel including how to implement the apartheid strategy at the ICJ.
- In October 2022, Adalah published a press release welcoming the findings of the UN Commission of Inquiry and writing that “We hope that the report will be adopted by the UN General Assembly and that it will lead to a swift response by the International Court of Justice and by the prosecutor of the International Criminal Court.”
- In January 2023, Adalah published a position paper arguing the “clear criminal intent” of the Israeli government “to commit crimes under the Rome Statute, including crimes against humanity (namely, the crime of Apartheid) and war crimes. It is therefore necessary for international bodies, including by the International Criminal Court and the International Court of Justice, to urgently intervene and for the international community to take action that the Israeli Government is intentionally committing crimes under Intl. Law and that “immediate and urgent action by the authorized international bodies is required, including the International Criminal Court and the International Court of Justice.”
- In February 2023, Breaking the Silence co-founder Yehuda Shaul “condemned international silence, noting in particular France’s abstention from voting in late December on a UN resolution calling on the International Court of Justice to give opinion on the issue of the Israeli occupation of the Palestinian territories.”
- On November 12, 2022, NRC Senior Humanitarian Law and Policy Consultant Itay Epshtain tweeted “#Israel’s fear that the @CIJ_ICJ Advisory Opinion will liberate #Palestinians from having to wait on it to end occupation on its own terms (or rather, continue to entrench and prolong it) is precisely what we hope the Court would opine. Self-determination is non-negotiable.”
- In a November 2022, Epshtain participated in a webinar titled “UN SR Milestone Report on Palestine: Resuming Rights-Based Discourse on Palestine.” According to Epshtain, “it is the time for the International Court of Justice to revisit its 2004 advisory opinion and to correct the legal errors made then. This requires a pressure from the global civil society on their countries and the General Assembly to finally refer the case to the ICJ for a new advisory opinion that shall recognize the non derogatable right of self-determination for Palestinians not subjective to negotiations.”
- On November 29, 2022, Diakonia published a series “Questions and Answers” to provide “a brief overview of the legal basis, mandate, and scope of activities of the International Court of Justice (ICJ) in relation to its advisory proceedings.”
- In a December 2022 article in Mondoweiss, Diakonia senior legal expert Eitan Diamond discussed the ICJ case and claimed that “Israel has made it clear that it is intent on retaining its control over Palestinian territory indefinitely. Under these circumstances, to sacrifice justice in the vain expectation of peace would only serve to perpetuate and deepen the oppression that Palestinians are enduring under Israeli domination.”
- Another Diakonia staff member, Anna-Christina Schmidl, is quoted as saying, “Unlike the Wall Advisory Opinion, which focused on a comparatively narrow set of factual and temporal circumstances […] the requested advisory opinion would entail an evaluation of the legality of Israel’s occupation as a whole… the impact of ‘colonial domination, alien subjugation and foreign occupation’, on the right to self-determination, and thus go to the very heart of the principles upon which the United Nations was founded.”
- Members of PHROC include Al-Haq, Addameer, Al Mezan, Al-Dameer, BADIL, Defense for Children International – Palestine (DCI-P), Jerusalem Center for Legal Aid and Human Rights (JLAC), Hurryyat, Palestinian Center for Human Rights (PCHR), Ramallah Center for Human Rights Studies (RCHRS), and Women’s Center for Legal Aid and Counseling (WCLAC).