Published 25 July 2024 Author: Stefan Talmon
On 19 July 2024, the International Court of Justice (ICJ) delivered its advisory opinion in the case concerning Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. In response to questions posed by the UN General Assembly, the ICJ found, inter alia, that the State of Israel’s continued presence in the Occupied Palestinian Territory (OPT) is unlawful and that Israel is under an obligation to bring to an end its unlawful presence there as rapidly as possible. In a brief statement to the press at the EU foreign ministers meeting in Brussels, Federal Foreign Minister Annalena Baerbock commented:
The ICJ has just published a groundbreaking advisory opinion, which makes it clear that we, the international community, have a responsibility with regard to the situation in the Middle East and the two-state solution. … It was already clear before the advisory opinion that the settlement policy of the Israeli government is contrary to international law and that the settlement policy stands in the way of a two-state solution. Thus, even though this advisory opinion is not binding, the Israeli government would be well-advised to take this advisory opinion seriously and to finally clear the way for a two-state solution because it is the only prospect for Palestinians and Israelis to live together in peace.
During the regular government press conference on the same day, a cabinet spokesperson stated:
The Federal Government of course takes note of the legal opinion delivered by the ICJ on Friday and naturally we respect the independence of the Court. It is … an opinion, and though such rulings by the ICJ in advisory proceedings are not legally binding, they are, of course, relevant for the international community. The opinion confirms our positioning and that of the EU in many points, particularly with regard to the construction of further settlements.
A spokesperson for the Federal Foreign Office added:
Even though this is not a binding ruling by the International Court of Justice, it is nevertheless the legal opinion of the highest court of the United Nations. In this respect, the Israeli government in particular would be well-advised to take a close look at this opinion and draw the appropriate conclusions from it.
Asked whether the federal government agreed that the ICJ had accused Israel of implementing an apartheid policy, the spokesperson for the Federal Foreign Office replied:
The International Court of Justice has established that certain human rights obligations apply to Israel, including in relation to the occupied territories. It has established a violation of Article 3 of the Convention on the Elimination of Racial Discrimination, which prohibits racial segregation and apartheid. However, … the ICJ has not decided on one of the two options. In any case, discrimination was established that is not permissible under the Convention.
In this respect, we now have clarity on a legal point that has always been criticised by the Federal Government, namely that there is unequal treatment of Palestinians and Israeli settlers in the occupied territories. …
It has always been the position of the Federal Government to say that the choice of the term apartheid sets a tone that is not helpful when thinking about how to resolve the Middle East conflict.
But once again: The advisory opinion itself states – and this is also our opinion – that there is obviously discrimination, unequal treatment of Israeli settlers and Palestinians in the occupied territories. The report confirms, so to speak, a legal position that we also held.
It was further asked whether the federal government now recognised that the Israeli occupation as such was unlawful. The spokesperson for the Federal Foreign Office replied:
International law is not an à-la-carte menu – international law applies. There is now a non-binding opinion from the highest court of the United Nations that says exactly that. In this respect, there is ultimately little room for interpretation.
The spokesperson for the Federal Foreign Office also stated more generally:
As German Government, as Germany, we have a responsibility for the security of the State of Israel. This follows from our history …. However, this does not mean support for the occupation policy in the occupied territories and certainly not support for the settlement policy of the present Israeli government as well as previous Israeli governments, which is unlawful under international law.
The Federal Foreign Office spokesperson also said that the government would analyse the advisory opinion in detail to evaluate what it might meant for German policy, but reiterated that it was principally the Israeli government that would be well advised to draw the necessary conclusions now.
During his summer press conference on 24 July 2024, Federal Chancellor Olaf Scholz declared that the ICJ’s ‘recent advisory opinion … has not changed our assessment’ that the only perspective for a peaceful coexistence of Israelis and Palestinians is a two-State solution with ‘Israel and a Palestinian state in the West Bank and Gaza.’ He said that in the past the federal government and he himself had always criticised ‘the expansion of settlements’ and that they had ‘spoken out critically about illegally established settlements and also about settler violence.’ Asked whether in light of the advisory opinion and the shadow of the Gaza war, the federal government would continue to supply weapons to Israel, the chancellor replied:
We have supplied weapons to Israel, and we have not decided to stop doing so. But of course we always decide on a case-by-case basis. … We have not decided that we will not supply weapons. So we have and we will.
The Chancellor was also asked what the federal government did to comply with the ICJ’s call to refrain from anything that supported Israel’s illegal policies in the West Bank and explicitly to prevent trade in West Bank products and natural resources. The chancellor replied:
A government under my leadership will not support a boycott of goods, services and commodities from Israel. In fairness, I find such demands despicable.
These statements suggest that there is a certain discrepancy in the attitude towards Israel between the Foreign Office and the Federal Chancellery. While the chancellor emphasised that the ICJ had delivered an ‘advisory opinion’ and the cabinet spokesperson, speaking for the chancellor, underlined that the advisory opinion was ‘not legally binding’, the Federal Foreign Office spokesperson conceded that the Advisory Opinion was ‘nevertheless the legal opinion of the highest court of the United Nations’. The cabinet spokesperson also focused in particular on “the construction of further settlements’, while the Federal Foreign Office spokesperson denounced the settlement policy of the present and former Israeli administrations and stated that the advisory opinion left ‘little room for interpretation’ with regard to the illegality of the Israeli occupation of the OPT. This could indicate that the Federal Foreign Office, emboldened by the Advisory Opinion, will in future take a more critical and more outspoken position on the Israeli occupation of the Palestinian Territory.
Category: News
DOI: 10.17176/20240725-152234-0
