ICJ announcement expected today, as UAV strikes central Tel Aviv via BICom

* For coverage of the drone attack in Tel Aviv in the early hours of this morning, see Israeli Media Summary below.

ICJ: This afternoon, the International Court of Justice (ICJ) in The Hague is set to deliver a nonbinding advisory opinion on the status of Israel’s military and civilian presence in east Jerusalem and the West Bank under international law.

• Evidentiary hearings were heard in February, after a 2022 UN resolution requesting the court’s opinion on the “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.”
• The resolution, passed by 87 votes to 26 (with 53 abstentions), asked for the court’s scope of enquiry to consider the “ongoing violation” of “the right of the Palestinian people to self-determination” and “prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967,” as well as alleged Israeli attempts to alter  “the demographic composition, character and status of the Holy City of Jerusalem.”
• The UK joined the US, Germany, Italy, Canada, and Australia in voting against the resolution. Israel felt reassured that its closest allies did not support the resolution, forming what Israel refers to as a “moral minority” of western liberal democratic states supporting it.
• The court’s February hearings were extensive, with over 50 countries giving evidence. Israel, however, opted not to cooperate with the process, arguing that it was “part of the Palestinian attempt to dictate the results of the diplomatic settlement without negotiations” – an alleged tactic often referred to as ‘lawfare’. It expressed its view that the court lacked appropriate jurisdiction in a submission to the court itself.
• At the time of the UN resolution calling for the ICJ’s opinion, Prime Minister Netanyahu said “just like the hundreds of distorted UN General Assembly resolutions against Israel over the years, today’s disgraceful resolution will not obligate the government of Israel. The Jewish people is not occupying its land and is not occupying its eternal capital Jerusalem. No UN resolution can distort this historical truth.”

Context: The ICJ is one of the UN’s principle organs. It’s opinions, though usually non-binding, often contribute to customary international law.

• The court is composed of 15 judges who are elected to by the UN General Assembly and Security Council to serve for nine-year terms.
• The court’s current president is Lebanese judge Nawaf Salam, who has a history of harsh criticism of Israel.
• In 2004, the court was requested by the UN to deliver an advisory opinion on the legality of the separation barrier between Israel and the West Bank.
• Unlike in the recent case called by South Africa, the ICJ’s advisory opinion on the current case will be non-binding.
• Critics argue that Israel’s non-participation means that the ICJ will lack the necessary factual basis required to reach an informed decision. As former Israeli Supreme Court Aharon Barak noted of the 2004 case, “in the proceedings before the ICJ, the injured parties did not participate. Israel was not party to the proceedings. There was no adversarial process, whose purpose is to establish the factual basis through a choice between contradictory factual figures. The ICJ accepted the figures in the [UN] Secretary-General's report, and in the reports of the special rapporteurs, as objective factual figures. The burden was not cast upon the parties to the proceedings, nor was it examined.”
• Legal critics of the court’s processes have argued that it tends to rely too heavily on evidence supplied by the UN itself. These same critics have cast doubt on the reliability of this UN-supplied evidence, pointing, for example, to the international body’s general acceptance of Hamas casualty figures from the current war in Gaza.
• Of the current case, critics also note that, in the case of East Jerusalem, the will of the Palestinian population is likely to be ignored. Polling has indicated that, by a large majority, East Jerusalemites have indicated a preference for the area remaining under Israeli control.
• Unlike the West Bank, East Jerusalemites hold Israeli residence permits, giving them full freedom of movement, full rights to the benefits of Israeli citizenship, including healthcare and national insurance payments (bar the right to vote for the Knesset, unless they apply for citizenship).
• Earlier this year, in another anti-Israel motivated move, South Africa brought a case to the ICJ accusing Israel of genocide in its war in Gaza. The court accepted the case, and its full investigation could take several years.
• Israel took control of the West Bank in a defensive war in June 1967, during which time Jerusalem was also unified. The UN has generally held that this occupation was/is unlawful, pointing to the general international legal principle of the inadmissibility of the acquisition of territory by force.
• Critics of this view argue that this principle cannot justly be applied to territory occupied during a defensive war, and that the previous custodian of the areas – Jordan – had not right to occupy them either.
• However, multiple Israeli governments, including the Prime Minister Netanyahu in his famous Bar Ilan speech, have accepted in principle that the West Bank would form part of an independent Palestinian state under a future two state solution, with appropriate modifications made to account for Israeli settlement there and Israel’s security needs.
• The repeated failure of the Palestinian Authority in the West Bank to clamp down on terror and to cease incitement and inducement to commit it has led many in Israel to grow sceptical of the wisdom of such a two state solution. October 7th has only added to the view that, as presently constituted, the Palestinian national movement cannot be considered a peaceful partner to such a process.
• This week, by 68 votes to 9, the Knesset passed a declarative resolution rejecting the prospect of a two state solution. Yair Lapid’s Yesh Atid and the Labour Party, as well as the prime minister himself, absented themselves from the Knesset chamber in order to avoid the vote.
• The resolution said that “the Knesset of Israel firmly opposes the establishment of a Palestinian state west of Jordan. The establishment of a Palestinian state in the heart of the Land of Israel will pose an existential danger to the State of Israel and its citizens, perpetuate the Israeli-Palestinian conflict and destabilise the region.”
• “It will only be a matter of a short time until Hamas takes over the Palestinian state and turns it into a radical Islamic terror base, working in coordination with the Iranian-led axis to eliminate the State of Israel,” it continued. “Promoting the idea of ​​a Palestinian state at this time will be a reward for terrorism and will only encourage Hamas and its supporters to see this as a victory, thanks to the massacre of October 7, 2023, and a prelude to the takeover of jihadist Islam in the Middle East.”
• However, the resolution should be seen as a symbolic gesture reflecting the view of the current government as well as the scepticism of Benny Gantz’s opposition faction. It is a recognition of the current fears of the majority of Israelis regarding two states, rather than a binding policy position which might impede future Israeli governments in pursuing a two state solution.

Looking ahead: The announcement is expected in The Hague at 3pm local time.

• Although Israel was not party to the proceedings, pressure will likely grow from the furthest right-wing elements in the government to punish the Palestinians for such a perceived act of lawfare. They will likely push for further unilateral actions in the West Bank, further exacerbating international criticism.
• Israeli officials are concerned over the possibility that the court will advise the UN that Israel is violating international law, and may even call on another international juridical body, the International Criminal Court, to initiate criminal proceedings against Israeli officials in the West Bank.