IN two months’ time, on December 8, the United Nations General Assembly (UNGA) will celebrate the 20th anniversary of resolution ES-10/14, adopted on December 8, 2003 at its 10th Emergency Special Session, where the UNGA decided to request the International Court of Justice for an advisory opinion on the following question:

“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territory, including in and around East Jerusalem, as described in the Report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?”

The UNGA resolution requested the court to render its opinion “urgently”.

The court received written submissions from 45 states and 4 international organisations, including the European Union. At the oral proceedings, which were held from February 23 to 25, 2004, the court heard oral submissions from Palestine and two international organisations.

The court rendered its advisory opinion on July 9, 2004.

The court began by finding that the UNGA, which had requested the advisory opinion, was authorised to do so under article 96, paragraph 1, of the UN Charter (the Charter). It further found that the question asked of it fell within the competence of the UNGA pursuant to articles 10(2) and (11) of the Charter.

Moreover, in requesting an opinion of the court, the UNGA had not exceeded its competence, as qualified by article 12(1) of the Charter, which provides that while the UN Security Council (UNSC) is exercising its functions in respect of any dispute or situation the UNGA must not make any recommendation with regard thereto unless the UNSC so requests.

The court further observed that the UNGA had adopted resolution ES-10/14 during its 10^th Emergency Special Session, convened pursuant to resolution 377 A (V), whereby, in the event that the UNSC failed to exercise its primary responsibility for the maintenance of international peace and security, the UNGA might consider the matter immediately with a view to making recommendations to member states.

The court rejected a number of procedural objections, finding that the conditions laid down by that resolution had been met when the 10th Emergency Special Session was convened, and in particular when the UNGA decided to request the opinion, as the UNSC had at that time been unable to adopt a resolution concerning the construction of the wall as a result of the negative vote of a permanent member.

Lastly, the court rejected the argument that an opinion could not be given in the present case on the ground that the question posed was not a legal one, or that it was of an abstract or political nature.

Having established its jurisdiction, the court then considered the propriety of giving the requested opinion. It recalled that lack of consent by a state to its contentious jurisdiction had no bearing on its advisory jurisdiction, and that the giving of an opinion in the present case would not have the effect of circumventing the principle of consent to judicial settlement, since the subject-matter of the request was located in a much broader frame of reference than that of the bilateral dispute between Israel and Palestine, and was of direct concern to the UN.

The court did not also accept the contention that it should decline to give the advisory opinion requested because its opinion could impede a political, negotiated settlement to the Israeli-Palestinian conflict. The court further found that there was sufficient information and evidence to enable it to give its opinion, emphasising that it was for the UNGA to assess the opinion’s usefulness. The court accordingly concluded that there was no compelling reason precluding it from giving the requested opinion.

By 14 votes to one, the court found that:

1. the construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territory, including in and around East Jerusalem, and its associated regime, were contrary to international law;

2. Israel was under an obligation to terminate its breaches of international law; it was under an obligation to cease forthwith the works of construction of the wall being built in the occupied Palestinian territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto; and

3. Israel was under an obligation to make reparation for all damage caused by the construction of the wall in the occupied Palestinian territory, including in and around East Jerusalem.

In the course of rendering its opinion, the court observed that the right of the Palestinian people to self-determination was a well-established fact. The court said:

“As regards the principle of the right of peoples to self-determination, the court observes that the existence of a “Palestinian people” is no longer in issue. Such existence has moreover been recognised by Israel.”

The court went on further to say as follows:

“The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of September 28, 1995… refers a number of times to the Palestinian people and its “legitimate rights” (Preamble, paras. 4, 7, 8; Article II, para. 2; Article III, paras. 1 and 3; Article XXII, para. 2). The court considers that those rights include the right to self-determination, as the General Assembly has moreover recognised on a number of occasions (see, for example, resolution 9;8/163 of 22 December 2003).”

The UNGA in fact had recognised as early as 1984 that the West Bank (including East Jerusalem) and the Gaza Strip were the locus for the exercise of the Palestinian people’s right of self-determination. (G.A. Res. 39/146, 3, U.N. Doc. A/RES/39/146 December 14, 1984)

The same notion was unanimously affirmed by the UNSC in its resolution endorsing the “Roadmap for Peace”. The resolution (S.C. Res. 1515, U.N. Doc. S/RES/1515, November 19, 2003) reaffirmed the vision of a region “where two states, Israel and Palestine, live side by side within secure and recognised borders”.

Deputy Prime Minister Ahmad Zahid Hamidi is spot on in saying that Palestinians should be granted their absolute right to freedom from illegal Israeli occupation, the right to reclaim land seized by Israel, and the right to establish an independent and sovereign Palestinian state with East Jerusalem as its capital.

Let’s join hands in praying for the protection of the Palestinian people and the liberation of their homeland from the occupation and oppression of the Israeli regime. – October 10, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.