A CASE STUDY OF PALESTINE-ISRAEL CONFLICT ON ADVISORY JURISDICTION OF ICJ
Jurisdiction of International Court of Justice in Israel Palestine Dispute is a key challenge today. The ICJ or we can say the World’s Court on Justice System is one of the six major organs of UN.1It is basically a judicial body that was established in 1945. This court was established to look into international disputes and settle them amicably through efficient judicial practice. The ICJ has two ultimate functions to perform.1
- To resolve the disputes between the states brought before it by the states.
- To give advisory opinion upon the matters which the authorized international organs referred to it.
Pertaining to it’s functions, ICJ under the article 36 of it’s ICJ Statute has two kinds of jurisdictions, one is contentious jurisdiction whereas the other one is advisory jurisdiction. The ICJ under it’s contentious jurisdiction can hear the matters between states contingent to their willful submission of matter before ICJ either by agreement or by way of treaty.[1] This jurisdiction of ICJ is also known as compulsory jurisdiction. On the other hand, the advisory jurisdiction elaborated under article 65 of ICJ Statute enables it to give advisory but non-binding opinion on the legal queries at the request of the UN.[2]
Israel and Palestine conflict in ICJ
The Israel and Palestine conflict has been among the most discussed issues in the ICJ concerning its advisory jurisdiction. The position of the Palestinian territories that was occupied by Israel since the 1967 Arab-Israeli war has been a subject of controversy in the global community.[3] In 2004, the ICJ for instance was requested to give an advisory opinion on the question “What are the legal consequences of the construction of the wall being built by Israel in the Occupied Palestinian Territory?”[4] In an advisory opinion delivered by the court on July 9, 2004, declared that the construction of the wall was unfair and unlawful and demanded from Israel to refrain from continuing constructing the wall and dismantle those sections that had been constructed.[5]
Similarly, upon same conflicts, On 10 November 2022, the draft text in which the request was made to the International Court of Justice to provide an advisory opinion, which is a non legally binding one, on the Palestinian question was approved in the Fourth Committee (Special Political and Decolonization Committee)[6]. On 30th of December 2022, the plenary of UNGA passed the resolution and referred a question for an advisory opinion to the ICJ under it’s advisory jurisdiction in article 65.[7]
ICJ’s Advisory on Conflict between Israel and Palestine
Recently, in July 2024, the ICJ provided a detailed advisory opinion in regard of the continued conflict between Israel and Palestine. The Court was invited to decide whether the continued occupation by Israel of the Palestinian territories and the violation of Palestinians’ rights is legal or not?. In the advisory opinion of the ICJ, it has again mentioned clearly that occupying Palestinian territories is unlawful and they have asked Israel to quit the occupation and fulfil the Palestinian people’s rights.[8]
It has to be noted that the advisory opinions provided by the ICJ are not legally binding under article 59 in the direct sense yet these opinions are highly appreciated in the international society and can directly impact on further development of the process of law-making in the international law.11 The advisory opinions developed and their content are one of the most significant legal activities that have effectively responded to the need of building new international communities’ operative perceptions and legal context for finding a solution to the Israel-Palestine conflict, despite the fact that it did not contribute to pro-active work on the conflict.
Controversy of Implementation
The way forward in the conflict and recommended solutions for the Israel –Palestinian conflict is a complex debate. As the parties have been to the negotiating table and have engaged in peace talks for many years but have never been in a position to negotiate for a permanent solution. The advisory opinions provided by the ICJ has provided legal restraint to conflict but as have been seen, the compliance with the directions issued by the court largely remain depended on the willingness of the concerned states and the international community to agree to uphold principles of international law and to act accordingly on matters in controversy.
[1] Statute of the International Court of Justice’, (Art.36) https://www.icjcij.org/statuteArt)>https://www.icjcij.org/statuteArt.
[2] Ibid.(Art.65)
[3] The Naksa: How Israel occupied the whole of Palestine in
1967’>https://www.google.com/amp/s/www.aljazeera.com/amp/features/2018/6/4/the–naksa–howisraeloccupied–the–whole–of–palestine–in–1967
[4] ICJ,’Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’(Advisory Opinion, 2004)>https://www.icj–cij.org/en/case/131.
[5] Ibid
[6] Research Society of International Law | RSIL, ‘The ICJ’s Upcoming Advisory Opinion on Palestine: A Fragile
Hope’>https://rsilpak.org/2023/the–icjs–upcoming–advisory–opinion–on–palestine–a–fragile–hope/
[7] 9. Ibid
[8] ICJ, ‘Legal Consequences of the Ongoing Occupation of the Palestinian Territories by Israel’ (Advisory Opinion 2024) https://www.icj–cij.org/en/case/xxx.
