The ICJ’s accusations against Israel are a modern version of medieval persecution of Jews

The states, groups of states and other entities who chose to appear before the court last week were: Palestine; Egypt; Malaysia; South Africa; Algeria; Saudi Arabia; Belgium; Colombia; Bolivia; Brazil; Chile; Spain; the United States of America; the Russian Federation; France; Hungary; Indonesia; Türkiye; Iran; Jordan; Kuwait; Luxembourg; Maldives; Mexico; Namibia; Norway; Pakistan; Panama; Poland; Qatar; the United Kingdom; China; Senegal; Slovenia; Sudan; Switzerland; Comoros; Tunisia; Vanuatu; the League of Arab States; the Organisation of Islamic Cooperation; and the African Union.

In almost all cases, their participation and arguments were driven by political, ideological and religious interests. “Palestine” (which is not a state, and thus, arguably, should not even be entitled to appear before the court) is controlled by the Palestine Liberation Organisation (PLO), which by definition denies Israel’s fundamental rights. Most of the 37 states that appeared in Court are hostile towards Israel and the Jewish people. Twenty that condemned Israel are Islamic or Muslim majority countries.

It is therefore no surprise that the vast majority condemned Israel. Only a very few defended the difficult position that Israel faces in its asymmetric underground war with terrorist organizations embedded in the local population. Israel has been warning throughout the war that Hamas cynically exploits international humanitarian aid to support its war aims to destroy Israel.

The proceedings were provoked by Israel’s decisions to terminate its cooperation with the UN agency for Palestinian refugees – UNRWA – and to restrict humanitarian aid into the strip. There is no UN agency specifically for any individual group of people other than Arab Palestinians. There is a plethora of pro-Palestinian institutions embedded within the United Nations. One of these is UNRWA, which was established and is authorised under General Assembly resolutions, adopted each year by majority votes leveraged by the Organisation for Islamic Cooperation, which has the largest membership of any organisation in the world other than the UN itself.

The United States and Hungary made arguments defending Israel’s decision to terminate cooperation with UNRWA. The UK urged the court not to make a ruling on whether or not Israel has violated international law. It was however remarkable that the UK qualified UNRWA as an “impartial humanitarian organisation”.

Israel had made written submissions to the court, strongly challenging the court’s jurisdiction, but chose not to appear before the court in the oral proceedings.

Requests by the General Assembly for the Court to give legal advice condemning Israel have become a feature of the General Assembly’s annual proceedings. They are always framed in terms that prejudge the expected outcomes of the advice. For example, last week’s hearing was on Israel’s obligations to ensure unhindered provision of “urgently needed supplies essential to the survival of the Palestinian civilian population as well as of basic services and humanitarian and development assistance, for the benefit of the Palestinian civilian population, and in support of the Palestinian people’s right to self-determination.”

Not only was the question posed to the ICJ biased, but the evidence before the Court is almost entirely documentation provided by the UN Secretariat that endorses the outcome desired by the UN political majority. For example, the UN relies blindly on casualty data provided by Hamas and assiduously refuses to consider the possibility that Hamas controls UN staff or uses UNRWA infrastructure for its terror operations.

This systemic bias against Israel means that the Court is prevented from hearing the real facts about how UNRWA has been infiltrated by Hamas, and the strong arguments under international law that support Israel’s decisions to stop working with UNRWA, and to restrict humanitarian aid supplies into Gaza in order to prevent their misuse by Hamas.

A half-dozen of the principal legal arguments that have been made are set out here.

First, the advisory opinion prejudices other contentious cases under the Court’s current consideration. Two of these cases, South Africa v Israel and Nicaragua v Germany, concern allegations of genocide. These cover many of the same factual issues as the UNRWA advisory opinion. In particular, the General Assembly request for an advisory opinion overlaps with the South Africa case, initiated a year prior to the request, concerning scope, content and applicability of humanitarian obligations that form a central factor in of the genocide allegations. For the International Court of Justice to hand down an advisory opinion prior to the conclusion of submissions by the parties in the South Africa case would do irreparable damage to the rights of the parties in these other cases. Therefore, as Israel itself and Hungary and the USA have argued, the Court should exercise its discretion to decline to give legal advice that overlaps with those matters under its consideration in the genocide cases.

Second, the Court has inadequate information available to it to render a decision and should not do so. This failure in the evidence was noted by Judge Julia Sebutinde, vice-president of the Court, in her dissenting judgement in last year’s advisory opinion on the legal consequences arising from policies and practices of Israel in Palestine. She observed that the Court’s advisory opinion in that case “does not reflect a comprehensive, balanced, impartial and in-depth examination of the pertinent legal and factual questions involved. It also overlooks the intricate realities and history of the territories and populations”.

Third, no State can be compelled to cooperate with corruption or terrorism. Hamas controls the UNRWA staff union and Israel alleges that more than 10% of UNRWA staff in Gaza have ties to terrorist factions and that 50% have close relatives in terrorist factions. It is extensively and independently documented that UNRWA schools and institutions glorify and support terrorism against Jews. At least 12 UNRWA terrorist employees actively participated in the October 7 massacre of Israelis. Moreover, UNRWA continually grows its client population, including Palestinian Arabs who live in the very place that they claim is the state of Palestine, but whom it lists as refugees to perpetuate and exacerbate conflict with Israel. Therefore, to oblige Israel cooperate and collaborate with UNRWA is to bully and extort concessions harmful to the Jewish state.

Fourth, UNRWA is a separate instrumentality from the UN. It is not clear that the1946 Convention on Privileges and Immunities of the United Nations even applies to UNRWA. The current position of the US State Department is that it does not. Privileges and immunities are necessary for the fulfilment of United Nations purposes. But neither terrorism nor armed attacks are UN purposes to which diplomatic protections apply. To the contrary, they are prohibited under international laws. Moreover, privileges and immunities are not essential to humanitarian cooperation with UNRWA, as is evident from the work of many humanitarian NGOs.

Fifth, the scope of diplomatic immunities and privileges are qualified by individual agreements between agencies and host states. In the case of UNRWA, that individual agreement is the Comay-Michelmore Exchange of Letters, which was provisional and open to replacement or cancellation. The diplomatic privileges granted to UNRWA under the agreement were conditional and were lawfully terminated by Israel.

Sixth, it is not true that the Palestinians are dependent upon UNRWA for humanitarian aid. This can and is being provided outside of UNRWA auspices. There is no legal obligation to provide humanitarian assistance specifically through UNRWA. UNRWA is not even within the top six aid providers currently active in Gaza. Education, healthcare, humanitarian relief and social services can be supplied by other UN agencies, none of which are affected by the restrictions Israel will impose on UNRWA. In addition, many NGOs are active in this space of humanitarian activities. In contrast to them, UNRWA has acted with impunity and caused more harm than good.

Several non-governmental international organizations, including The Hague Initiative for International Cooperation and UK Lawyers for Israel, have made written submissions to the court providing objective factual and legal analysis supportive of Israel.

It is highly likely that the majority of the Court’s judges will ignore the arguments made in defence of Israel. There are fifteen judges on the ICJ, representing all the main legal systems of the world. Most are, inevitably, influenced by the mindset of the legal and political systems they represent.

The repeated condemnations of Israel continue an historic pattern, a perfectly ordinary cultural continuum, in which the highest courts today persecute Jews in much the same way that royal courts of disputation did in mediaeval centuries.

But Israel is not the only one to suffer from this system. The perversion of our international legal institutions might start with the Jews but does not end there. The damage is much deeper and broader. At the end of the day, the subversion of international laws and the judicial institutions for political purposes undermines respect for the global legal system and the judicial authority of the international courts. It is a guaranteed lose-lose for them both and for the very notion of legal order in our shuddering 21st century world.

Greg Rose is Honorary Professor of Law at the Australian National Centre for Ocean Resources and Security (ANCORS) at the University of Wollongong, Australia, and Senior Fellow at The Hague Initiative for International Cooperation, Netherlands. His expertise is in international law and his areas of research include international law relating to armed conflict, counterterrorism, transnational environmental crime and marine environmental governance

Andrew Tucker (BA/LLB BCL(Oxon)) is an international lawyer, who currently serves as Director General of The Hague Initiative for International Cooperation