The Canadian government has wisely chosen to urge the International Court of Justice (ICJ) to preserve the longstanding “land for peace” legal framework for resolving the Israeli-Palestinian conflict. The “land for peace” framework has been legally mandated by the Security Council, agreed to by Israel and the Palestinians in the Oslo Accords and endorsed by all Arab League member states through the Arab Peace Initiative.
As Canada noted in its submission, “land for peace” is the only viable path towards a just and lasting peace between Israel and the Palestinians. Yet the ICJ — at the behest of a minority of the United Nations General Assembly (UNGA) — appears likely to issue an advisory opinion that would sabotage the “land for peace” framework by opining, incorrectly, that international law requires Israel to unilaterally withdraw unconditionally from the disputed Palestinian territories.
Canada’s submission noted, with considerable understatement, that such an opinion “may contribute to a polarization of positions that risks moving the parties away from a just and lasting resolution to the conflict.” Indeed, such an opinion would cripple and perhaps destroy the prospects for peace by empowering extremists on both sides of the conflict. Canada should continue to avail itself of every opportunity to avert such a tragic outcome.
The case was initiated by a UNGA resolution , passed late last year, which requested an ICJ advisory opinion on the legal status and consequences of Israel’s presence in “the Palestinian territories occupied since 1967.” The resolution passed without the support of a majority of the UN’s 193 member states (87 voted in favour, 26 against, 53 formally abstained and 27 were non-voting). Key countries joining the United States and Israel in voting against the resolution included Australia, Britain, Canada, Germany and Italy.
The controversial UN commission of inquiry (COI) investigating the Israeli-Palestinian conflict had recommended, in an October 2022 report, that the UNGA request such an opinion. In its report, the COI set forth “grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law.”
The COI argued that the Israeli presence in the West Bank had become illegal as a result of Israel’s construction of settlements and a separation barrier, which the COI said amount to de facto annexation of occupied territory. The UNGA request to the ICJ was designed to elicit an advisory opinion declaring that those violations render Israel’s presence in the disputed territories illegal, that Israel must therefore withdraw unconditionally and immediately, and that the UN and its member states must pressure Israel to do so.
Such an ICJ opinion would ignore the fact that Israel’s occupation is a result of lawful acts of self-defence. The armed conflict that prompted the occupation continues today. Per the international law of armed conflict (LOAC), legal violations in how an occupation is conducted must stop but do not render the occupation itself illegal or otherwise require withdrawal. Such an ICJ opinion would also contradict the long-established “land for peace” legal framework for resolving this particular conflict, which was established by Security Council resolutions and the Oslo Accords.
While international law prohibits the permanent acquisition of another state’s territory by force, it does not prohibit an interim occupation, which results from a legal use of force in self-defence, pending a resolution of the conflict. Stephen Schwebel, who served for two decades as an ICJ judge (including for a time as ICJ president), observed that under LOAC, “A state acting in lawful exercise of its right of self-defence may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defence.”
“As a condition of its withdrawal from such territory,” Schwebel continued, “that state may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defence.”
Following the Six-Day War of 1967, which Israel launched in self-defence, the Security Council established the “land for peace” legal framework for resolving the conflict. It did so in Security Council Resolution 242, which called for Israel’s withdrawal “from territories occupied in the recent conflict,” only as part of the “establishment of a just and lasting peace,” including “respect for and acknowledgement of” Israel’s “right to live in peace … free from threats or acts of force.”
A later resolution, 338, affirmed Resolution 242 and made clear that it was legally binding . The “land for peace” framework was subsequently affirmed in the Oslo I Accord , which was signed in 1993 by the Palestine Liberation Organization and Israel, and endorsed by the Security Council. The Oslo I Accord affirms the parties’ obligations to “negotiations … leading to a permanent settlement” based on Resolution 242.
The accord’s list of issues to be covered by the permanent status negotiations, specifically echoing the terms of Resolution 242, includes “Jerusalem, refugees, settlements, security arrangements, borders.” These topics include the same occupation-related issues about which the UNGA request pressures the ICJ to opine on.
The Israeli-Palestinian peace negotiations have yet to be completed, despite Israel having repeatedly offered a Palestinian state in up to 94 per cent of the territory of the West Bank. The current prospects for a negotiated settlement are complicated by various factors, including Hamas, which controls Gaza and remains committed to destroying Israel.
The “land for peace” legal framework holds that Israel’s presence in the disputed territories is legal pending a negotiated peace settlement consistent with Resolution 242 and Oslo. It is the only framework for peacemaking on which Israel and all Arab League member states have formally agreed. The framework was also endorsed by Israel’s peace treaties with Egypt and Jordan . In addition, the Arab Peace Initiative, which has been approved by all Arab league member states, explicitly endorsed the “land for peace” principle .
The current UNGA request to the ICJ is manifestly designed to replace that “land for peace” framework with an ICJ opinion that international law requires Israel to withdraw from the disputed territories without any Palestinian concessions on any of the permanent status issues. Such an opinion would make it far more difficult or even impossible for Palestinian leaders to compromise with Israel on such issues.
If the ICJ were to treat Israel as if it has annexed the disputed territories, when it has not done so, it would likely encourage Israeli extremists to urge the government to proceed with annexation. No Israeli government will agree to unilaterally withdraw from the West Bank. Israel’s presence in the West Bank has enabled it to keep the number of rockets fired into Israel from there to around five since 2005. In contrast, over 20,000 rockets have been launched at Israel from the Gaza Strip since Israel’s withdrawal in 2005.
The West Bank, unlike the Gaza Strip, is located very close to Israel’s largest population centres. A Gaza-like rocket threat from the West Bank in the wake of an Israeli withdrawal would put most Israelis in grave danger .
Since Israel will inevitably decline to unilaterally withdraw, the advisory opinion will, in addition to undercutting compromise-minded Palestinians, create yet another Israeli “violation” with which activists can demand anti-Israel boycotts, divestment and sanctions. Given the practical realities, that is presumably the real objective of the architects of the request.
That may be par for the course for the biased UNGA, which again in 2022 passed more resolutions condemning Israel (15) than every other country in the world put together (a total of 12). But Canada should help ensure that the UNGA does not succeed in imposing this one-sided and unproductive approach on the ICJ.
A second and final round of written submissions is due in the case by Oct. 25. Those states, including Canada, which submitted in the first round have until then to submit written comments on the written statements made by others in the first round.
Canada’s second round submission should, in close co-ordination with key allies, robustly defend the “land for peace” legal framework and explain why proposals to eviscerate it are both dangerous and legally wrong. In doing so, Canada will not be defending the current Israeli government, whose policies are controversial. It will be defending, against extremists on both sides, the sole viable path towards a better future for both Israelis and Palestinians.
Source: National Post