Eye on the Middle East | The case 52 states made against Israel before the ICJ

The proceedings, which ran between February 19–26, came close on the heels of the provisional measures announced by the court in South Africa’s case against Israel alleging violations of the 1949 Genocide Convention.

The two cases are distinct and separate in cause. However, politically, given the spiralling effects of the ongoing conflict, they might converge in effect. The new case allows the ICJ, for the first time, an opportunity to examine the legal consequences of Israel’s indefinite occupation of Palestinian territories, as well as the responsibilities of third states.

How is this case different from South Africa’s genocide case?

The present case is part of the proceedings for a legally non-binding advisory opinion of the ICJ, requested by the UN General Assembly in December 2022. The court received written submissions through 2023, setting February 2024 for oral hearings. In its request, the UN had asked for the Court’s opinion on two questions:

(a) 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?

(b) How do the policies and practices of Israel referred to in (the) paragraph 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?”

While the scope of South Africa’s contentious case (which creates legal obligations for parties) is limited to potential breaches of the 1949 Genocide Convention, flowing from Israel’s current bombing of Gaza, the court’s opinion in this case will inform the requesting body’s — the UNGA’s — decision-making process. Under Article 65 of the Statute of the ICJ, the court can tender an advisory opinion on any question of international law to the UN Security Council or General Assembly, while under Article 96 of the UN Charter, the latter can request for such an opinion. An advisory opinion by the ICJ does not (and is not intended to) create mandatory legal obligations for any party, but rather interpret the current corpus juris (body of law) of international law applicable to any situation.

Despite its non-binding nature, whatever opinion the court delivers shall be unprecedented, unique, and politically significant with “great legal weight and moral authority”.

What the parties have said in the ICJ

Even as the trigger for the advisory proceedings pre-dates the current war in Gaza, the position that most states took in the genocide case resembles their stances on the larger Israel-Palestine question in their submissions to the Court in early February.

For instance, Israel (through a written submission) dismissed the court’s role, the United States cautioned against the ICJ forcing an Israeli withdrawal from occupied territories, and Arab states (along with several of those from the Global South) stressed on the need for a two-state solution and criticised Israel’s occupation. Expectedly, the latter states along with the OIC, AU, and Arab League also linked the charge of genocide with the failure to hold Israel accountable for its actions as the occupying power, thus far.

The ICJ itself had delivered an advisory opinion in 2004, categorically declaring Israel’s separation barrier/wall in the West Bank illegal; the UNGA in turn endorsed the opinion through a 150-6 vote and called on Israel to “tear down” parts of its wall (which Tel Aviv has refused to follow). Although the ICJ is not a court bound by its earlier judgements in other cases, it laid down the relevant sections of international humanitarian law applicable to the occupied Palestinian territories in the 2004 advisory opinion, and that remains unchanged.

What it means for the current crisis

When South Africa brought the genocide charge at the ICJ, it was already a significant legal tool to increase political pressure on Israel (by virtue of the large number of states in support of the case) to cease hostilities in Gaza. While that case unfolds, the advisory proceedings have a more direct bearing on the conflict for two reasons. First, it directly affects the central rationale of Israel’s Gaza operations which are linked to Israel’s claim of self-defence (of the territories it currently holds). Second, the body of UNGA/UNSC resolutions already available, which the court will consider, is concretely critical of Israel’s occupation with categorical calls for withdrawal. Moreover, a two-pillared development makes the case more politically coloured than ever before.

On the one hand, Arab opinion has largely consolidated around the need for a permanent two-state solution as the only way out of the current crisis; with each statement on these lines, Arab leaders increasingly run the risk of losing face should they step down later from this demand. On the other, Israeli hard-line opinion centred around prime minister Benjamin Netanyahu has similarly consolidated in the opposite direction. Even as the ICJ hearings were underway, the Israeli PM unveiled his first official post-war plan, which entailed indefinite Israeli military control of the Gaza strip to demilitarise it, assume greater control of the Egypt-Gaza border in cooperation with the former, and a disbandment of the UN Relief and Works Agency, which is the UN’s relief agency for Palestinian refugees.

Palestine and other Arab states have rejected such a plan in its entirety, with Egypt especially having rejected greater Israeli control of the Egypt-Gaza border. In its finer details, the plan goes against the stated preferences of even the United States, which has called for the Palestinian Authority to take control of the strip. US Secretary of State Antony Blinken himself had to also assert the illegality of Israel’s plans for new settlements in the West Bank and express Washington’s “disappointment”. Given Netanyahu’s doubling down on his recent rejections of Palestinian sovereignty, the current ICJ case then is a potential legal shape-charge for Tel Aviv, should the Court hold Israel’s occupation to be in breach of international law.

Bashir Ali Abbas is a research associate at the Council for Strategic and Defense Research, New Delhi, and a South Asia Visiting Fellow at the Stimson Center, Washington DC. In Eye on the Middle East, Bashir writes about the Middle East/West Asia region and its larger implications for India. Views expressed are personal