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UNGA adopts resolution calling for ICJ opinion on Judea and Samaria

The measure, passed by 87-26 with 53 abstentions, accuses the Jewish state of adopting “discriminatory legislation and measures.”

Israeli Ambassador to the United Nations Gilad Erdan addresses the General Assembly. Jan. 20, 2022. Credit: Permanent Mission of Israel to the United Nations.
Israeli Ambassador to the United Nations Gilad Erdan addresses the General Assembly. Jan. 20, 2022. Credit: Permanent Mission of Israel to the United Nations.

The United Nations General Assembly on Friday passed a resolution calling on the ICJ to “render urgently an advisory opinion” on Israel’s “prolonged occupation, settlement and annexation of Palestinian territory.”

Passed by an 87-26 margin with 53 abstentions, the resolution also calls for an investigation into Israeli maneuvers “aimed at altering the demographic composition, character and status of the Holy City of Jerusalem,” accusing Israel of adopting “discriminatory legislation and measures.”

While Israeli officials harshly criticized the resolution’s adoption, with Prime Minister Benjamin Netanyahu calling it “disgraceful,” Israeli diplomatic sources also noted that there were also some positive aspects to the vote.

When the U.N.’s Fourth Committee voted last month to advance the resolution to the full General Assembly, an absolute majority of U.N. member states voted in favor. Through a diplomatic effort by the Israeli Foreign Ministry, the Israeli Mission to the United Nations, Israeli President Isaac Herzog and the government of the previous prime minister, Yair Lapid, along with a push by Netanyahu, 11 countries changed their votes on Friday.

Ukraine, which controversially voted in favor of the measure in committee, abstained on Friday. Netanyahu’s office released a brief readout confirming a call with Ukraine’s President Volodymyr Zelenskyy, though it did not draw a direct line between the conversation and the vote.

Ten European states, including the United Kingdom and Germany, voted against ICJ referral, with only seven voting in favor. France and Norway, traditionally vocal Palestinian allies at the United Nations, abstained.

The number of countries that actually supported the Palestinian initiative were a minority of U.N. members this time around, factoring in no votes, abstentions and countries that did not vote.

The Israeli diplomatic source said the effort honed in on “like-minded states,” including Western and Asian democracies. The number of states opposing the referral is important, according to the source, because it impacts how the advisory opinion is viewed once it’s issued, and the traction it will get. The source inferred that a strong showing against the resolution at the General Assembly could lead to weak action on any eventual ICJ advisory opinion.

Once the resolution is referred to the ICJ, the full process, up to producing an advisory opinion report, can take one to two years. Prior to that, the ICJ will call for a public submission of opinions, followed by a public hearing procedure.

A second Israeli diplomatic source said the new Israeli government has not yet formulated a decision as to whether to cooperate with the court.

The ICJ issued an advisory opinion in 2004 in response to a U.N. General Assembly resolution, finding that the security barrier Israel built during the Second Intifada to halt a wave of terrorism violated international law and should be torn down. The opinion was ignored by Israel, and no further action came about as a result.

The current case could eventually make its way to the International Criminal Court, which, unlike the ICJ, has the authority to form legally binding decisions. Jerusalem has argued previously that the ICC doesn’t have jurisdiction over it, since Israel isn’t a member of the court and never ratified the Rome Statute that binds signatories to the court’s guidelines.

The ICC ruled last year, though, that it has jurisdiction in the Judea and Samaria, the eastern portion of Jerusalem and in Gaza, since it accepted “Palestine” as a member state in 2015.

Israeli officials have said they see Ramallah’s most recent move at the United Nations as part of the wider Palestinian effort to utilize international bodies to punish Israel. The first source said there are problems in the wording of the legal question being referred to the ICJ. On the other hand, the question does not itself include the word “apartheid,” inferring that the language could have been even more extreme.

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