Palestinian territory– Euro-Med Human Rights Monitor hosted an expert talk on the UN draft resolution L12, which requests an advisory opinion from the International Court of Justice on the situation in the Occupied Palestinian Territory vis-à-vis the legality of Israel’s occupation, the long denial of the Palestinian right to self-determination, and practises that amount to de facto annexation.
Titled “Europe and Palestinian rights: Does the ICJ’s advisory opinion matter?”, the webinar featured notable experts in the field that discussed the significance of the resolution, its legal content, and the likely implications if it comes to pass. The discussion also highlighted the ramifications of most EU Member States abstaining or voting against the draft resolution, as well as why it is important that the EU supports the vote on the final resolution next December.
Francesca Albanese, the UN Special Rapporteur on the situation of human rights in the occupied Palestinian territory, called the resolution groundbreaking, as it touches on “the right of all rights”, namely the right to self-determination. “Without this right…no other right [has] meaning,” she argued, adding that “we can discuss the realisation of economic, cultural, social, or political rights, but none of these can be fully realised without realising the right of self-determination of the Palestinian people.”
Albanese said that soliciting the ICJ’s advisory opinion would be an opportunity to tackle the “overarching structure and the very presence of Israeli military occupation” as well as “the colonial presence in the territories”, pointing to the “strong consensus amongst scholars, lawyers, and civil society that Israel’s occupation has crossed the line of what is permissible under international law.”
The UN SR urged the court to pronounce itself on “the consequences of the prevention of the realisation of the right to self-determination, [and] the legal consequences not only for Israel but also for the international community”. Criticising countries that have shielded Israel from international law over the years, Albanese contended that the current reality would be different if not for “the impunity that the international community has granted Israel”.
“The international legal system needs Palestine more than Palestine needs the international legal system, in many respects,” Albanese added, calling the system’s inaction thus far “blatantly abnormal in terms of principles and compliance”. “If the international community is not capable [of granting support] to Palestinians,” she continued, “it will be creating a huge exception which would corroborate the perception that we’re not in a fair and equal world…[and that] rights are not for all, but just for a club.”
Victor Kattan, Senior Research Fellow at the School of Law at the University of Nottingham, explained in depth the nuances of the resolution and the positions of EU Member States. He said more EU states actually voted in favor of the resolution this time, compared to 2003 when all EU states abstained from voting in favor of seeking an advisory opinion on the legality of Israel’s separation wall in the West Bank.
Kattan said one of the advantages of putting forth this resolution, if it is successful in going to the Court, is that “it puts Palestine back in the spotlight in international politics, after it has been neglected for so long, and also reminds people that the Palestinian struggle is a legitimate one.” He added that the resolution is a “clever way” to confront the international community, especially in light of the “very robust [negative] reaction from the EU” in response to the Russian Federation’s invasion and annexation of territory.
“If states, particularly in the West, claim to be law abiding and that there is a global rule-based order and international rule of law, it would look rather odd if they ignore the ruling of the principal judicial organ of the United Nations,” Kattan argued.
Analysing the positions of EU Member States on the resolution, Martin Konecny, the director of the Belgium-based European Middle East Project, highlighted the “disappointing but not too surprising” vote of Germany against the resolution, along with France and Italy. He spoke of growing internal polarisation on this issue within the EU, and old talking points being used as a pretext to vote against—or abstain from voting for—the resolution. For instance, he argued, “The EU claimed in 2003 that the ICJ would undermine [peace-making] efforts between the parties” to the Israeli-Palestinian conflict, however “today there is no such prospect of relaunching the peace process, and yet some [EU] countries are still using the same talking points, which are completely empty, to justify their positions on the resolution.”
Konency further explained that the EU countries jointly objected to the resolution on two grounds, one being “that there was little time to discuss this proposal”, which he called the “procedural excuse”, and the other being “a reference to the mosque without referencing the Temple Mount [specifically]”, adding that such reasoning doesn’t make sense. He questioned countries’ genuine desire to “create chances for restarting the political process” and cited “the sidelining of international law and multilateral institutions over the last decades, [which has] been…a key factor in why the peace process has failed.” Konency asserted that, “Even if you fully support Israel and have no sympathy for Palestinians, why not support an opinion by the International Court of justice, that is about international law, which is universal and neutral?”
“The first principle of international law is prohibition on acquisition of territory by force… which was the key principle in the resolution on Ukraine that was voted on a month earlier, and where the US and EU were keen on maximising global support, and rightly so for this resolution,” emphasised Konency. He noted that “exactly one month later, we basically undermine the same principle in another conflict, which undermines Western credibility in trying to convince countries of the Global South to support them when it comes to international law [concerning] Ukraine.”
Konency highlighted the EU’s acceptance of the intervention of the ICJ in other cases, which necessitates putting the situation in Palestine on an equal footing. “Europeans are very much opposed to violence”, he argued. “This is the most non-violent—the most legal—alternative [we] have. If we don’t go down this route, we are incentivising violence on the ground.”
Hugh Lovatt, a senior policy fellow with the Middle East and North Africa Programme at the European Council on Foreign Relations, stressed that, “One can judge the merit or the value of any initiative based on the level of Israel’s pushback, and Israel’s pushback here has been quite aggressive, which points to the importance of such initiative.” He added that the resolution would “pull the rug out from under the EU’s feet, which continues to pretend that nothing has changed since the 1990s peace process.”
Arguing that “the way Europe has responded is very illustrative of some of the problems inherent in EU policies”, Lovatt focused in particular on “the prioritisation of the search for European unity, which doesn't exist anymore.”
Lovatt cautioned that the EU’s disunity and paralysis in policy-making vis-à-vis the oPt is sometimes “overexaggerated” and can “possibly be used to avoid making difficult decisions by blaming…disunity.” He spoke of “the Middle Eastern peace process” as an idea the EU is trapped inside of, suggesting the prioritisation of a failed strategy over a realistic objective: “The objective for the EU should be de-occupation, self-determination, and equal rights.”
He warned Member States against opposing the resolution, saying said that “curbing or trying to immobilise international law and holding it hostage to political considerations is counterproductive, as it would entrench Israel’s impunity and maximalism.” Lovatt added that, “The EU can at the very least stop shielding [its] unlawful actions from the full weight of international law.”