The United Nations and states, individually and collectively, are responsible for Palestine and Israel
The United Nations General Assembly commences its 79th session this week. The session continues until the end of the year. Among other things, at this session the GA will respond to the Advisory Opinion of the International Court of Justice on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, delivered on 20 July 2024.
The Advisory Opinion was the result of work done by the UN Commission of Inquiry on the Occupied Palestinian Territories, including East Jerusalem, and Israel. In our report to the General Assembly in October 2022, we set out our legal analysis and concluded that the Israeli occupation of the Occupied Palestinian Territory was unlawful and that Israeli policy and practice was discriminatory. Having expressed our view, we recommended that the GA seek the most authoritative advice possible in the international system, the advice of the International Court of Justice.
In its Advisory Opinion, the Court came to the same conclusions as we had. It found that:
- all Palestine (and the occupied Golan) was under belligerent occupation and the Occupying Power (Israel) is fully subject to International Humanitarian Law (especially the Fourth Geneva Convention) and International Human Rights Law
- the occupation is unlawful and must be ended as rapidly as possible
- settlements are unlawful and must be withdrawn as rapidly as possible and further settlement and extension of settlement ended
- the Occupying Power is violating Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, which prohibits segregation and apartheid.
The Court also said,
… the United Nations, and especially the General Assembly, which requested this opinion, and the Security Council, should consider the precise modalities and further action required to bring to an end as rapidly as possible the unlawful presence of the State of Israel in the Occupied Palestinian Territory.
The GA will consider this issue in this session and give its response. Our Commission is preparing a legal policy paper to advise the GA on “precise modalities and further action” that, in our opinion, the GA should take. That paper will be released within the next few weeks. I expect that the GA will adopt a resolution that lists actions individual States and groups of States should take to implement the Court’s Opinion.
The GA’s consistent and continuing concern for the situation concerning Palestine and Israel is unsurprising. After all, the GA and the UN generally played a major role in bringing about that situation and in its continuation for the last 76 years.
In 1947, at its second session, the GA decided that the British Mandate Territory of Palestine should be divided into “independent Arab and Jewish states”, with Jerusalem under international jurisdiction. The General Assembly made the decision in response to the UK’s announced intention to surrender the mandate in August 1948. The United Kingdom had received the mandate from the League of Nations. From the time of, and by virtue of, that decision, General Assembly resolution 181(II), the United Nations has been responsible for what has happened in the former Mandate Palestine.
Some eminent jurists have argued that resolution 181(II) was beyond the power of the GA and so invalid. No international court has had to consider this issue and the GA has not returned to re-consider the resolution. Our Commission is established by a UN body and so accepts and acts on the basis of the resolutions of UN organs, including the GA and the Security Council. I would make one comment and ask one question, however.
My comment concerns the UN’s continuing responsibility for the situation in Palestine and Israel. The Government of Israel continually criticises the UN for spending more time on that situation than on any other country-specific situation. It counts resolutions of UN bodies and says, correctly, that there are more on Israel than on any other State. It argues that the UN is pre-occupied with Palestine and spends too much time condemning Israel. That argument takes no account of the fact that the UN is more responsible, over a longer period of time, for that situation than for any other in the world.
My question concerns the centrality of resolution 181(II) for the State of Israel. I accept the legitimacy of the State of Israel and of the State of Palestine on the basis of resolution 181(II). The Israeli Government and Parliament, however, have rejected Palestinian statehood and so, by necessary consequence, they have repudiated resolution 181(II). My question is what is the basis for the legitimacy of the State of Israel without resolution 181(II)?
When the GA, during this session, considers “precise modalities and further action”, it will consider the guidance the Court provided.
All States are under an obligation not to recognise as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory. They are also under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory. It is for all States, while respecting the Charter of the United Nations and international law, to ensure that any impediment resulting from the illegal presence of Israel in the Occupied Palestinian Territory to the exercise of the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Fourth Geneva Convention have the obligation, while respecting the Charter of the United Nations and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.
We can expect that the GA will present “precise modalities and further action” that include political, economic, cultural and military measures. GA resolutions are not binding and are not enforceable, but they have considerable political clout and moral suasion. So we can also expect that individual states and groups of states will act to implement the measures the GA adopts. The Australian Government will be under considerable pressure, especially from countries in our immediate neighbourhood, to act.
Chris Sidoti is a Commissioner on the UN Human Rights Council’s Independent International Commission of Inquiry on the Occupied Palestinian Territories, including East Jerusalem, and Israel.