* Guest blogpost by Dr Otto Spijkers.
Otto Spijkers is assistant professor of international and European law at Leiden University College (LUC), Faculty of Governance and Global Affairs of Leiden University. Before joining Leiden University College, Otto was professor of international law at Wuhan University’s China Institute of Boundary and Ocean Studies as well as its Research Institute of Environmental Law. Prior to joining Wuhan University, he worked at the Utrecht Centre for Water, Oceans and Sustainability Law and Netherlands Institute for the Law of the Sea of Utrecht University, Netherlands. He authored his doctoral dissertation, entitled The United Nations, the Evolution of Global Values and International Law, at the Grotius Centre for International Legal Studies of Leiden University.
This is an English translation of a lecture for the members of the Royal Dutch Association of Information Professionals (Koninklijke Nederlandse Vereniging van Informatieprofessionals), delivered on 24 September 2024, at the Peace Palace in The Hague.
Introduction
Today, I will talk about the opinion on the Palestinian occupied territories that the International Court of Justice (‘Court’) recently issued. The United Nations General Assembly wanted to know from the Court what the legal consequences are for all UN Member States, including the Netherlands, arising from Israel’s violation of the Palestinian people’s right to self-determination and Israel’s ongoing presence in the Palestinian territories. This territory, occupied by Israel since 1967, consists of the West Bank, East Jerusalem, and the Gaza Strip.
On July 19, 2024, the International Court of Justice issued an advisory opinion with answers to these questions. The Court held that Israel’s violations of the prohibition on the acquisition of territory by force (annexation) and Israel’s ongoing frustration of the Palestinian people’s right to self-determination directly impact the legality of Israel’s ongoing presence as an occupying power in the Palestinian territories. In short, the Court concluded that Israel’s presence in the Palestinian territories is unlawful, and therefore Israel must end it as soon as possible.
Obligations for the Netherlands
There is much to be said about this opinion, but I want to make some comments about the obligations of all UN Member States, such as the Netherlands. It is often emphasized that an advisory opinion of the Court is not legally binding. This means that the requesting body – in this case, the UN General Assembly – is free to do with this opinion what it wants – the General Assembly has actually embraced the opinion in a resolution of September 18, more on that later.
The fact that an advisory opinion of the ICJ is not legally binding for UN Member States does not mean that the opinion is completely irrelevant for determining and interpreting the obligations that they have under international law. In a letter from the current Netherlands’ Minister of Foreign Affairs, Caspar Veldkamp, to the House of Representatives dated September 10, the Minister acknowledged this. He wrote: ‘Advisory opinions of the ICJ are not legally binding, but are authoritative because the principal judicial organ of the United Nations provides therein an explanation of the applicable international law.’ And that applicable international law itself is certainly binding for the Netherlands. The Netherlands also has a constitutional duty to promote the development of the international legal order – Article 90 of our Constitution prescribes this – and this includes respecting the International Court of Justice and the opinions it issues.
So, what does the opinion say about the obligations for third states, including the Netherlands? Because the obligations violated by Israel – particularly the prohibition on annexation and the right to self-determination of peoples – have the status of peremptory norms (jus cogens) and are owed to the international community as a whole (erga omnes), these violations create several special obligations for third states, including the Netherlands.
No state may recognize as lawful a situation created by actions that are contrary to a peremptory norm, nor may it assist in maintaining it. This is a negative obligation. Therefore, all UN Member States may in no way assist in maintaining Israel’s unlawful presence in the occupied Palestinian territories. They must, in any case, avoid all trade and investment relationships that may directly or indirectly contribute to this. Furthermore, all states, according to the Court, must refrain from any implicit recognition of Israel’s unlawful presence in the Palestinian territories, including East Jerusalem, inter alia when determining the location of their diplomatic missions in Israel.
In addition, all states must cooperate to bring to an end all serious violations of peremptory norms. This is a positive obligation, meaning an obligation to act. Thus, all UN Member States must ensure, among other things, that any serious impediment to the Palestinian people’s right to self-determination resulting from Israel’s unlawful presence in the Palestinian territories is removed. It is irrelevant whether one State – the Netherlands – can single-handedly ensure that Israel stops these violations of peremptory norms. After all, all States in the world have the same obligation. And if all states in the world fulfil their obligation to stop these violations, the result can be achieved that the efforts of just one state – the Netherlands – could never accomplish.
What is the Netherlands concretely planning to do?
In response to the opinion, the government first issued the letter of September 10, in which the Minister provided an overview of the Netherlands’ current policy. Since 2006, the Dutch government has been pursuing a ‘discouragement policy’ of relations of Dutch companies with Israeli settlements in occupied Palestinian territory. However, this is rather non-committal. As the minister himself admits in his letter, it is ultimately up to companies themselves to determine which activities they undertake. Companies have their own social responsibility to respect human rights. Second, products from illegal settlements may not be marketed as ‘made in Israel.’ Finally, the minister mentioned the sanctions imposed by the EU against settlers in the West Bank who commit violence against Palestinian civilians. A handful of individuals and organizations have indeed been placed on a sanctions list. Veldkamp concludes that ‘the ICJ opinion justifies the continuation of these measures,’ and that ‘the cabinet will further analyse in the coming period whether there is a reason to adjust the current policy framework based on the Court’s opinion.’ In other words, Dutch policy has not yet changed following the ICJ’s opinion.
Three days after Veldkamp’s letter (September 13), the ‘Elaboration of the Coalition Agreement by the Cabinet‘ was published. This elaboration contains nothing about measures that the Netherlands plans to take to help end Israel’s ongoing and unlawful presence in the Palestinian territories. In fact, the Dutch government still plans to relocate the Dutch embassy to Jerusalem. Israel claims Jerusalem as its capital, but according to the United Nations, East Jerusalem is part of the occupied Palestinian territories.
Incidentally, there is a dispute at the ICJ, brought by Palestine against the US, regarding the relocation of the American embassy to Jerusalem. I think, I hope, that the Netherlands will follow that case with particular interest. Currently, there are ninety-seven embassies in Israel, of which ninety-one are in Tel Aviv, and only five in Jerusalem: the US embassy was moved there in 2018 by President Trump, followed by the diplomatic missions of Guatemala, Honduras, Kosovo, and Papua New Guinea. The Netherlands would be added to that list.
As mentioned, the United Nations General Assembly requested the ICJ’s advisory opinion. So, the Assembly must determine how to proceed. In a resolution of September 18, 2024, the General Assembly welcomed the International Court of Justice’s opinion. The Assembly demanded in this resolution that Israel end its unlawful presence in the occupied Palestinian territory, thereby following the Court. The Assembly added a clear deadline to this: this must happen no later than 12 months after the adoption of the resolution, i.e., before September 18, 2025. The Assembly also decided to convene an international conference for the implementation of the United Nations resolutions concerning the question of Palestine and the two-state solution to achieve a just, lasting, and comprehensive peace in the Middle East.
This resolution was adopted with 124 votes in favour, fourteen against, and forty-three abstentions. Belgium, France, Greece, and Spain all voted in favour. The Belgian delegate expressed his country’s support for the Court. According to Belgium, Israel’s decades-long illegal occupation undermines the human rights of Palestinians and jeopardizes any chance for a successful peace process in the Middle East. According to the Belgian delegate, the Assembly’s resolution offers a realistic prospect of restoring hope to a Palestinian population that is subjected to an extremist ideology.
The Netherlands abstained from voting. In its explanation of the vote, the Netherlands emphasized that it still sees the International Court of Justice as the principal judicial organ of the United Nations and that it is still enormously proud to host this institution in The Hague. So that is not the issue.
The Netherlands abstained from voting because the resolution did not refer to the gruesome attack by Hamas on Israel, which had major implications for Israel’s security. Nor was Israel’s right to self-defence against this attack confirmed in the resolution. One might argue that the Court’s opinion expressly did not address the attack that Hamas and other armed groups launched on Israel on October 7, 2023, nor did it address the legality of Israel’s response, which has since claimed more than 40,000 lives. That is in part because the Assembly requested the opinion before all this took place. The General Assembly resolution did, however, call on Israel to immediately comply with its obligations under international law as indicated in the three provisional measures’ orders issued by the International Court of Justice in the case brought by South Africa against Israel. That case is currently being heard by the Court. This case concerns the right of the Palestinian people in the Gaza Strip to be protected from genocide. So, this case does address the legality of Israel’s response to the October 7 attack, which the Court’s advisory opinion of 19 July of this year did not address.
Secondly, according to the Netherlands, a negotiated and sustainable two-state solution was more necessary than ever. And unilateral calls for an internationally imposed solution or a time-bound withdrawal were not helpful, according to the Netherlands. It is questionable whether the Court’s opinion, followed by a resolution of the General Assembly adopted by a large majority, can truly be labelled ‘unilateral.’
Bahia Tahzib-Lie, the Dutch representative to the United Nations in New York, did conclude by stressing that the Netherlands remains committed to realizing the right of the Palestinian people to self-determination, including their right to an independent, democratic, contiguous, sovereign, and viable state that lives in peace and security alongside Israel. How the Netherlands is precisely committed to doing this was not made clear.
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