ACLJ Files Legal Brief Defending Israel at the International Court of Justice

Through its international affiliate, the ACLJ is once again at the forefront of defending our country’s most important ally, Israel.

Every year, terrorist groups like Hamas and Palestinian Islamic Jihad carry out numerous violent and indiscriminate attacks against Israel’s civilian population with the stated intent of wiping out Israel. But that seems to be not enough for Israel’s enemies. Israel’s adversaries also seek to politically isolate Israel by using legal warfare – “lawfare.” This also continues every year at the United Nations through its so-called “independent” commissions of inquiry, the Human Rights Council, and the General Assembly. And this lawfare has reached the International Court of Justice (ICJ or Court) once again.

On December 30, 2022, the U.N. General Assembly adopted Resolution 77/247, asking the ICJ to give an advisory opinion on matters related to the Israeli-Palestinian conflict. Due to the highly charged and extremely complicated political nature of the issues involved, out of 193 voting Member States, 26 voted against the politically charged resolution, 53 abstained, and only 87 voted in favor. Yet the Court has decided to engage in this exercise.

The General Assembly did not ask the Court to determine the legality of thousands of indiscriminate attacks originating from the Gaza Strip and the so-called “West Bank” toward Israeli population centers or the legality of Israel’s armed responses and its security measures (all of which are permitted under international law) in light of such attacks. Instead, the General Assembly simply presumed the Israeli measures were unlawful even though no competent judicial body has ever made that determination.

Presuming violations of the international Law of Armed Conflict, the General Assembly asked the Court the following “question”:

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?

This is not a question. This is a statement of several false presumptions, which have no legal basis under international law. The General Assembly’s statement noted above presumes, among other things, the existence of a “State of Palestine,” territory belonging to that “State,” “occupation” by Israel of that territory under the Hague and the Geneva Conventions, and the unlawfulness of Israeli “occupation” and its security measures.

In 2004, the ICJ itself made similar false presumptions in its so-called Wall Advisory Opinion when it declared that Israel’s security wall violated international law.

We have filed a detailed legal analysis with the ICJ through our international affiliate, the European Centre for Law and Justice (ECLJ), to set the record straight.

Our submission states:

The General Assembly and the International Court of Justice (in the Wall Advisory Opinion) both presume a Palestinian State’s existence on the basis of the Partition Plan recommended in General Assembly Resolution 181(II), which was rejected by the Arabs, was never implemented, and has no legal validity. They . . . falsely presume that the Palestinian State’s borders coincide with the 1949 armistice lines. Both of these presumptions are legally flawed.

We provided a detailed account of the historical facts, the legal basis for the creation of the State of Israel, its sovereignty of the territory, and why the General Assembly’s and the Court’s presumptions are false.

Our submission noted:

[T]he presumption that Israel is unlawfully occupying “Palestinian territory” further disregards the League of Nations’ Mandate for Palestine, a legally binding document that called for the establishment of a national home for the Jewish people in the territory of the Mandate. It also disregards the customary law principle called uti possidetis juris (“UPJ”). Both the Mandate for Palestine and UPJ individually and separately established Israeli sovereignty over the Mandate’s territory (including the Gaza Strip, the West Bank, and East Jerusalem) when the British Mandatory departed and Israel declared independence in May 1948. Israel did not “occupy” the Gaza Strip and the West Bank (including East Jerusalem) in 1967 when it liberated those areas from the unlawful belligerent military occupation by Egypt and Jordan, respectively. A State cannot unlawfully occupy its own territory as the term “occupation” is understood in the Hague and the Geneva Conventions. The conventions deal with the territory of a High Contracting Party (a State).

As to the questions of the so-called “prolonged occupation” of the territory by Israel and the lawfulness of Israel’s security measures, our submission noted:

Israel’s continued control over parts of the West Bank and its measures vis-à-vis the West Bank, the Gaza Strip, and the residents therein are consistent with the Law of Armed Conflict. Palestinian groups like Hamas, Palestinian Islamic Jihad, and their allies continue to commit grave war crimes by indiscriminately attacking Israeli population centres every year with thousands of rocket attacks, mortar attacks, suicide bombings, shootings, knife attacks, incendiary balloons, etc. In response to such attacks, Israel must take security measures like the security fence, check points, the naval blockade, military tribunals, and necessary and proportionate armed responses—all of which are permitted under international law.

The full 56-page legal submission, which can be found here, goes into the details of each of these issues and asks the Court not to rely on such unsubstantiated presumptions or disregard applicable international law.

At the ICJ, only States and intergovernmental organizations are allowed to participate in the official proceedings. So we are also sending our legal analysis to the States that voted against the General Assembly’s resolution and most of the States that abstained from voting in order to help them prepare their submissions to the Court should they decide to do so.

We will continue to defend Israel everywhere our ally is attacked.