On December 30, 2022 the United Nations General Assembly (UNGA) referred the question of “Israeli Practices and Settlement Activities Affecting the Rights of the Palestinian People and other Arabs of the Occupied Territories” to the International Court of Justice (ICJ). The question was the product of decades of NGO lobbying and is a central part of the Palestinian campaign to exploit institutions to “internationalize” its conflict with Israel. (See NGO Monitor’s report “The Role of NGOs in Supporting the International Court of Justice Case Targeting Israel.”) The following FAQs explain the role of the ICJ and how it works, as well as the way it has been and will continue to be instrumentalized against Israel.
What is the International Court of Justice?
The ICJ is a court established in June 1945 under United Nations (UN) auspices and serves as the UN’s principal judicial organ. It adjudicates disputes between Member States and can issue advisory opinions when requested by UN bodies. The ICJ is located in The Hague, Netherlands.
The ICJ should not be confused with the International Criminal Court (ICC). The ICC is not part of the UN system, though it closely cooperates with it (here for more info). The ICC prosecutes individuals for international crimes found in the Rome Statute.
What is the function of the ICJ?
The ICJ carries out two main functions:
- The ICJ can adjudicate legal disputes between states when asked to by one of the parties (contentious cases).
- UN organs and specialized agencies can request that the ICJ provide a non-binding advisory opinion on legal questions (advisory proceedings).
The ICJ does not prosecute crimes nor does it have a prosecutor.
How has the ICJ been utilized in delegitimation campaigns against Israel? Is the ICJ biased against Israel?
The ICJ is a central focus for lawfare and delegitimation by NGOs. In 2003, during the height of the Palestinian suicide bombing campaign, the ICJ was asked by the General Assembly to give an advisory opinion declaring illegal the construction of Israel’s security barrier. The question posed to the Court was highly tendentious and presumed the opinion’s outcome. For instance, the question referred to the security barrier as a “wall,” even though it primarily comprises fencing, and less than 3% of the barrier is in fact, a wall. In July 2004, the ICJ issued an opinion that relied heavily on legal and factual narratives promoted by NGOs, and grossly minimized the context of terrorism. The lack of legal and factual rigor in the ICJ opinion stood in stark contrast to a detailed decision, issued only 10 days before by Israel’s High Court of Justice, addressing the same issues.
The 2004 ICJ advisory opinion is not binding in any way, but has since been used by NGOs to advance BDS campaigns and promote lawsuits (all unsuccessful) against those doing business with Israel.
The current case being sent to the ICJ for an advisory opinion asks the ICJ to decide an opinion on the “legal status of the occupation.” The idea to bring the current question before the ICJ was first proposed by former UN Human Rights Council Rapporteur for the Palestinians and activist John Dugard in his 2007 report. He advocated that the ICJ be asked: “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?” Dugard was also highly active in advocating for the 2004 “wall” opinion. Since 2007, variations on his question have been proposed by NGOs and UN officials working closely with them.
As with other lawfare campaigns, the main purpose of securing an ICJ opinion is to generate bad PR and foment anti-Israel demonization and delegitimization, which will bolster BDS campaigns. The PLO also hopes the opinion, which undoubtedly be highly critical of Israel, can be weaponized to circumvent the difficult compromises required for a negotiated peace settlement to its conflict with Israel.
What happened in November and December 2022?
On November 11, 2022 the 4th committee of the UNGA voted to pass a resolution to request an advisory opinion from the ICJ regarding Israel’s “occupation of Palestine.” The vote passed with 98 votes in favor, 17 votes against, and 52 abstensions.
In December 2022, the UN General Assembly adopted this resolution, asking the ICJ to provide an advisory opinion on the “Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory ,including East Jerusalem.”
The ICJ is charged with addressing two questions:
- “What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, 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?”
- “How do the policies and practices of Israel referred to in paragraph 18 (a) above 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?”
Third-state responsibility will be a key feature of the opinion and will be used to bolster BDS campaigns.
What was the role of the UN Commission of Inquiry in the UNGA vote?
In October 2022, the COI issued a report, which was presented to the General Assembly on 27 October. The COI recommended that the UNGA urgently request ICJ intervention on the “legal consequences of the continued refusal on the part of Israel to end its occupation of Palestinian Territory, including East Jerusalem, amounting to de facto annexation, of policies employed to achieve this, and of the refusal on the part of Israel to respect the right of the Palestinian people to self-determination, and on the obligations of third States and the UN to ensure respect for international law.”
The COI welcomed the passage of the resolution, stating that “The Commission considers that a definitive clarification of the legal consequences of Israel’s refusal to end the occupation, and what the obligation of third parties to ensure respect for international law are, will be crucial to member States and the UN in considering what further measures should be adopted to ensure full compliance with international law.”
What NGOs have been involved in the ICJ campaign and who funds them?
There are many international, Israeli, and Palestinian NGOs involved in the campaign to use the ICJ against Israel. These NGOs have been a central part of the Palestinian campaign to exploit international institutions and legal bodies to “internationalize” its conflict with Israel. Unsurprisingly, these European-funded NGOs have also been seeking the prosecution of Israeli officials at the ICC and in some cases have received EU and European-government funding to do so. Some of these groups also promote antisemitic rhetoric and have alleged ties to the Popular Front for the Liberation of Palestine (PFLP) – a designated terrorist organization by the US, EU, Canada, and Israel. (See NGO Monitor’s report “The Role of NGOs in Supporting the International Court of Justice Case Targeting Israel.”)
What are the next steps for the Court?
On February 8, 2022, the ICJ issued a press release noting that it will take information from UN Member States, including the observer “State of Palestine”, on the “legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.” The deadline for submission will be July 25, 2023.
As with the 2004 “Wall” case, the resulting opinion will almost surely be crafted to downplay Palestinian responsibility and culpability for the conflict, minimize and even erase the context of terrorism, and will be worded in such a way that it can be specifically utilized by the ICC to target Israelis.
What will NGO Monitor do going forward?
NGOs are not able to directly participate in the ICJ process. However, NGO Monitor will continue to monitor the activities and funders of NGOs promoting the ICJ campaign and how the opinion is instrumentalized to advance anti-Israel delegitimization and BDS. It will also publish a series of shadow briefs touching on the legal and factual issues advanced by NGOs that are likely to be discussed throughout the case.