Almost twenty years after it rendered its advisory opinion on Israel's security fence, the International Court of Justice is called once again to render an advisory opinion on Israel and the West Bank. Like in the previous time, the request for an opinion comes from the UN General Assembly. Like then, the number of abstaining states from the vote, is equally high. It is up to Israeli diplomacy to turn these states which actually disagree with the move, from abstainers to 'no' voters. The issue is not only on the semantics, but on the very essence of the initiative itself.
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Indeed, there is a whole question of what an additional advisory opinion can add to the decades-long conflict between Israel and the Palestinians. The opinion request's drafters call for an opinion on 'Israel's de facto and de jure annexation policy', on the settlements and on the Palestinians' right to self-determination. Yet, all these issues have been covered in the court's previous opinion. The court has explicitly said that settlements are illegal, Israel is not entitled to unilaterally annex any parts of the West Bank and the Palestinians have a right to self-determination.
It is true that by resorting for a second time to the ICJ, the opinion request drafters hope also for something more and that is to declare Israel's West Bank policies as apartheid. In the ears of these drafters echoes the Advisory Opinion the ICJ gave in 1974 on Namibia, denouncing the apartheid regime of South Africa and paving the way for sanctions against South Africa and for Namibia to ultimately become independent. In that sense, the drafters of such a request try to recap on the momentum that has been lately created, with major human rights NGOs such as Human Rights Watch or Amnesty International, branding Israeli policies as apartheid. Some have proceeded to tag as apartheid even Israel's policies inside its sovereign territory.
It is in this debate that the court is being called to intervene and let's be clear on this; if asked, it will ultimately render an opinion, although it shouldn't. If the request's agenda is indeed pure, then the ICJ should simply state it has already answered these questions with its previous opinion and if the request is for Israeli policies to be declared as apartheid, the court should stick to its rule of non ultra petita and not pronounce its stance on issues not included in the advisory opinion request.
At the same time, once the advisory opinion process unveils, the court can discuss any legal matter it wants, including that of apartheid. It is actually plausible to think that some of the 15 judges will. They will find legal arguments to argue that Israel does commit apartheid in the West Bank. Yet, more importantly, the judges should be aware that they can equally find arguments it does not, given that apartheid refers to policies inside a sovereign state and not in occupied territories. When it comes to the State of Israel, the existence of Arab Supreme Court justices and Members of the Knesset is difficult to support such apartheid claims.
No matter what one believes though, from an international law point of view, the question is whether a second advisory opinion will help the rule of law. Sometimes what is needed is not the pronouncement of legal norms and axioms, but the political ability to enforce them on the ground. This quest calls for talents like craftiness, diplomacy, compromise and the ability to engage also with other parameters like macroeconomic welfare and security. All these fields lie beyond the walls of the court. In the Israeli-Palestinian conflict, what is lacking is the will or the leaders to engage in the building of a viable solution. Sadly for all, this will or leaders must come from the people themselves and cannot be produced by any court ofjustice.
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