Published 26 February 2024 Author: Stefan Talmon
On 27 May 2021, the United Nations Human Rights Council (HRC) convened a special session on the grave human rights situation in the Occupied Palestinian Territory, including East Jerusalem. At the special session, the HRC decided by a recorded vote of twenty-four to nine (including Germany), with fourteen abstentions, to urgently establish an ongoing independent, international Commission of Inquiry ‘to investigate in the Occupied Palestinian Territory, including East Jerusalem, and in Israel all alleged violations of international humanitarian law and all alleged violations and abuses of international human rights law’. The HRC also requested the Commission of Inquiry to ‘investigate all underlying root causes of recurrent tensions, instability and protraction of conflict, including systematic discrimination and repression based on national, ethnic, racial or religious identity’. On 22 July 2021, the President of the HRC announced the appointment of Navanethem Pillay (South Africa), Miloon Kothari (India) and Christopher Sidoti (Australia) to serve as members of the Commission and indicated that Ms. Pillay would serve as chair.
In its first twenty-eight-page report to the UN General Assembly in September 2021, the Commission of Inquiry found that there were reasonable grounds to conclude that the Israeli occupation of Palestinian territory was now unlawful under international law owing to its permanence and to actions undertaken by Israel to annex parts of the land de facto and de jure. The Commission took the view that the permanent occupation and de facto annexation, including the actions undertaken by Israel in the Occupied Palestinian Territory could not remain unaddressed and, therefore, recommended that the International Court of Justice (ICJ) ‘should be requested to advise on the legal consequences of the continued refusal by Israel to end its occupation and of the steps it has taken to entrench its control and expansion into the occupied area through de facto annexation, and on the obligations of third States and the United Nations to ensure that Israel respects international law.’
During the debate of the report of the ICJ in the UN General Assembly on 27 October 2022, Malaysia supported the recommendation to request an advisory opinion from the ICJ on the legal consequences of Israel’s continued refusal to end its occupation of the occupied Palestinian territory. Germany, while not addressing the specific request, cautioned in general terms against the use of advisory proceedings in cases that essentially constituted a dispute between two States. The German representative stated:
Germany would like to highlight the pre-eminent role of the International Court of Justice as the principal judicial organ of the United Nations. Its judgments in contentious proceedings, as well as its advisory opinions, provide the most prominent authority in the world for the determination and application of international law. …
Therefore, we deem it of paramount importance to recall that the Court’s jurisdiction is based on the principle of consent. … Conversely, parties cannot be subject to the International Court of Justice’s jurisdiction without their consent. A deviation from that principle would gravely endanger acceptance of the Court’s role and thereby ultimately threaten to compromise its effectiveness. Therefore, the line between the two functions of the Court must not be blurred, and the International Court of Justice should not submit to attempts to make what is essentially a dispute between two States into an abstract question of law.
When the question of ‘Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem’ came before the UN General Assembly’s Special Political and Decolonization Committee (Fourth Committee), Germany was one of only seventeen States voting against a draft resolution, which provided that the General Assembly
Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following questions, considering the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, and the advisory opinion of the Court of 9 July 2004:
(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 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?
The resolution was adopted at the 26th meeting of the Fourth Committee on 11 November 2022 by a recorded vote of ninety-eight to seventeen, with fifty-two abstentions. Germany did not speak in explanation of its vote and while the resolution in general may have been unacceptable to Germany it later became clear that Germany was opposed to the request for an advisory opinion. The vote of EU Member States on the issue was split: seven EU members voted in favour, thirteen abstained and seven – Austria, Estonia, Czechia, Germany, Hungary, Italy and Lithuania – voted against.
States opposing the request for an advisory opinion raised the question of its implications for the UN budget so that the resolution could not be voted upon as planned on 12 December 2022. However, after the General Assembly’s Fifth Committee had approved an additional 255,100 US dollars for 2023 for the advisory proceedings, the Assembly’s Plenary on 30 December 2022 adopted Resolution 77/247 (2022), requesting an advisory opinion from the ICJ. The decision was taken by eighty-seven votes to twenty-six, with fifty-three abstentions. Germany, again, voted against the resolution.
In response to the General Assembly’s request for an advisory opinion, the Israeli Security Cabinet on 5 January 2023 adopted a range of measures against the Palestinian Authority (PA) to make it ‘pay the price’ for advancing the resolution at the United Nations. A statement from the Israeli Prime Minister’s Office read:
The Cabinet approved a number of steps to be taken vis-à-vis the PA in response to its appeal to the International Court of Justice (ICJ) last week.
The following is a list of these steps:
- Transferring approximately NIS 139 million from PA funds to victims of terrorism, implementing the Litvak verdict, which compensates the families of victims murdered in Palestinian terrorist attacks.
- Immediately offsetting the payments made by the PA to terrorists and their families in 2022, according to the report of the defense establishment.
- Placing a moratorium on Palestinian construction plans in Area C, following illegal take-over attempts by the PA, in opposition to international agreements.
- Denying benefits to VIPs who are leading the political and legal war against Israel.
- Action will be taken against organizations in Judea and Samaria that promote terrorist activity or any hostile activity, including political and legal action against Israel under the guise of humanitarian work.
This statement triggered thirty-nine UN Member States, including Germany, to issue the following statement:
As Member States of the United Nations, we reconfirm our unwavering support for the International Court of Justice and international law as the cornerstone of our international order, as well as our commitment to multilateralism.
In this regard, we express our deep concern regarding the Israeli government’s decision to impose punitive measures against the Palestinian people, leadership and civil society following the request by the General Assembly of an advisory opinion by the International Court of Justice. Regardless of each country’s position on the resolution, we reject punitive measures in response to a request for an advisory opinion by the International Court of Justice, and more broadly in response to a General Assembly resolution, and call for their immediate reversal.
Although Germany had voted against the resolution requesting the advisory opinion, it defended the UN General Assembly’s right to request such an opinion. On 16 January 2023, Germany’s Permanent Mission to the United Nations in New York wrote on Twitter:
Germany has joined the large group of UN member states who have signed off on this statement. This group, which holds diverging views on a recent UNGA resolution calling for an ICJ advisory opinion, agrees on the rejection of punitive measures in response to the resolution.
By Order of 3 February 2023, the ICJ decided that ‘the United Nations and its Member States, as well as the observer State of Palestine, are considered likely to be able to furnish information on the questions submitted to the Court for an advisory opinion’ and may do so by 25 July 2023. In the end, fifty-four States and three international organisations submitted written statements to the ICJ – but not Germany.
On 9 August 2023, it was revealed that the Federal Foreign Office had commissioned an academic expert to draft a written statement to be submitted by Germany in the proceedings but that the Federal Chancellery had blocked the submission for overriding political reasons. During the regular government press conference the Federal Government was asked why it had not submitted the statement prepared for the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. A spokesperson for the Federal Foreign Office replied:
There was an alignment within the Federal Government on the basis of which we jointly decided not to issue a statement in these proceedings. … It is quite common practice for the Federal Government to seek outside advice, especially on complex legal issues. However, we usually do not implement this advice one-to-one. That is what we did in this case … and we came to the joint decision not to issue a statement, especially since our general position on this issue is known.
The decision not to submit a written statement stood in marked contrast to Germany’s previous policy and practice. Only five years earlier, in the last advisory proceedings before the Court, Germany had declared:
Germany has always been, and continues to be, a fervent supporter of the judicial settlement of international disputes in general, and of the Court in particular. … It has moreover also regularly submitted statements in advisory proceedings brought before the Court.
In fact, over the past thirty-five years, Germany submitted written statements in all but one advisory proceedings before the ICJ. The only exception was the advisory proceedings concerning Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, where only a single State – Bolivia – made written submissions.
One can only speculate what motivated Germany not to make written submissions. In the previous advisory proceedings concerning Israel and the Occupied Palestinian Territory, where Germany had abstained on the General Assembly resolution requesting the opinion, it had argued before the ICJ that the Court should decline to answer the question put to it by the General Assembly because an opinion by the Court would provide no guidance to the General Assembly, the questions put the Court were of a predominantly political character, an advisory opinion would be likely to hinder, rather than assist the ongoing diplomatic negotiations and political efforts that aim to arrive at a resolution of the Middle East conflict, and the advisory jurisdiction of the Court was being (ab)used to circumvent the principle that settling a dispute requires the consent of the parties. None of these arguments was accepted by the ICJ in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In its written submissions in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Germany in January 2018 expressly accepted a broad advisory jurisdiction of the ICJ with regard to the ‘special legals situation’ of the Occupied Palestinian Territory, because
the occupied Palestinian territory … constitutes a question of direct and specific relevance to the United Nations, falling within the scope of its responsibility, almost since the organization’s inception. …
In consequence, …. the responsibility of the organization and its organs relative to the territory of Palestine not only encompasses the exercise of its own functions stricto sensu, but also includes action taken by both Israel and third States.
It would thus have been difficult for Germany to argue that the Court should decline to answer the questions submitted to it by the General Assembly in Resolution 77/247 (2022). Faced with the prospect of actually having to address the question of ‘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’, Germany, as one of Israel’s staunchest allies, may have opted for saying nothing, rather than having to address the illegality of some of Israel’s policies and practices in the Occupied Palestinian Territory and the legal consequences following therefrom.
Category: International Court of Justice
DOI: 10.17176/20240227-105321-0
