Israeli-Palestinian Conflict before the International Court of Justice: Türkiye's Address

The Israeli-Palestinian conflict did not begin on 7 October 2023, and seems unlikely to come to an end in the foreseeable future. On the other hand, it has escalated to a state that increasingly endangers the maintenance of international peace and security, which is one of the purposes of the United Nations (UN),[1] and the primary responsibility of the UN Security Council.[2] Nevertheless, international community has failed to address and resolve the issue. Despite several resolutions adopted by both the UN General Assembly and the Security Council,[3] no major change has been achieved regarding the circumstances on the ground as Israel persists in its unilateral actions in the occupied Palestinian territories and continues to disregard international law.

Recent Developments

On 29 December 2023, South Africa instituted proceedings against Israel in the International Court of Justice (ICJ), titled “Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip”. This marked Israel’s second contentious case before the ICJ and the first concerning its actions in the occupied Palestinian territories.[4] Thank to this case global public opinion has grown more sensitive and cognizant of the Israeli-Palestinian conflict. There were also other actions taken by the UN regarding the conflict, which, unlike South Africa v. Israel, are not widely known by the public.

On 30 December, 2022, the UN General Assembly adopted Resolution A/RES/77/247 and requested an advisory opinion[5] from the ICJ on two questions: Israel's violation of the Palestinian people's right to self-determination and the adoption of measures aimed at changing the status of Jerusalem; and the effect of these policies and practices on the legal status of the occupation.[6] Several states, including Türkiye, made statements on the matter.

Türkiye’s Statements

On 20 July 2023, and 26 February 2024, respectively, Türkiye submitted written[7] and oral[8] statements about the advisory opinion. It emphasized the necessity to ensure a two-state solution in the region,  based on the 1967 borders as delineated in the resolutions of  UN General Assembly[9] and UN Security Council[10]. Türkiye stated that the historical status quo in Haram Al-Sharif should be observed and breaches of the said status quo must be ended. In this regard, references were made to various historical documents, such as the firman[11] published by Sultan Abdülmecid I of the Ottoman Empire in 1852, the 1878 Treaty of Berlin, and the Mandate for Palestine established by the League of Nations.

Türkiye conveyed Israel's unlawful actions contrary to the status quo under three contexts: the right of Muslims to worship, access and freedom of movements of Muslims, and excavation and maintenance.

Right of Muslims to Worship

Türkiye expressed concern about the prevention of Muslims' right to worship being contrary to the historical status quo of Jerusalem. It stated that Al-Aqsa is a compound open only to the worship of Muslims, but Jews and Israeli state officials, accompanied by security forces, violate this status. The most striking example of this in recent years is the clashes during Ramadan on 4-5 April 2023. In these clashes, many people were injured, and hundreds of people were detained.

Access and Freedom of Movements of Muslims

Türkiye submitted that, historically and legally, the administration of Jerusalem belonged to the Jerusalem Islamic Waqf of Jordan, and this has been recognized by the parties in various documents[12]. In fact, UNESCO condemned Israel’s escalating aggression and illegal measures against the Al-Aqsa waqf and its personnel and demanded Israel to respect the historical status quo and cease its attacks immediately. Nevertheless, currently, Israeli security forces control all entrances into the compound.

Moreover, Türkiye emphasized that Israel's illegal settlement activities have intensified, including in East Jerusalem, and this has seriously damaged the demographic structure. Demolitions of houses of Palestinian people as well as forcible evacuations seriously contributed to this outcome.

Excavation and Maintenance

Türkiye further addressed Israel’s illegal excavations in the region, particularly in Al-Aqsa compound. Although the Jerusalem Islamic Waqf is the sole authority in the administration and maintenance of the compound, Israel has conducted unauthorized excavations. UNESCO also called upon Israel to end its illegal activities in the region.

The Significance and Influence of Advisory Opinions

The ICJ renders advisory opinions according to Art. 65 of its Statute and Art. 96 of the UN Charter. Unlike judgments and several exceptions[13], advisory opinions do not possess a binding nature. Nonetheless, they carry significant legal weight and are often instruments of preventive diplomacy that are utilized to maintain peace and security.

Concerns have arisen with regard to the influence of advisory opinions due to their non-binding nature. Considering Israel’s history of consistent breaches of UN resolutions, such concerns are justified. On the other hand, to suggest that advisory opinions have no impact at all would be incorrect. In Wall[14], upon ICJ’s conclusion that the wall built by Israel in Palestinian territories was unlawful, many states and corporations refrained from contributing to its construction. Furthermore, in Kosovo[15], the Court stated that a unilateral declaration of independence was not contrary to international law. Thereafter, more states recognized Kosovo’s independence. These examples demonstrate the influence that advisory opinions can have on states’ conduct in the international arena.

In addition, there are also advisory opinions that have influenced both states’ conduct and the internal functioning of the UN organs. In Namibia[16], the court departed from traditional view and asserted that Security Council resolutions adopted under Chapter 6 of the UN Charter could be binding. ICJ’s approach has led to significant changes in the wording and interpretation of Security Council resolutions, which is important also within the context of the Israeli-Palestinian conflict.

A Step Further: Intervening in South Africa’s Genocide Case

While it is meaningful and significant for Türkiye to express its opinion and not remain indifferent to the humanitarian crisis in Palestine, it could have taken a step further and intervened in South Africa v. Israel. By doing so, it would have had the right to make written and oral submissions, express its opinion on genocide, and, as such, contribute to a possible judgment in favour of Palestine. However, Türkiye refrained from seizing this opportunity.

States may intervene in a case before the ICJ through the means provided in Articles 62 and Article 63/2 of the ICJ Statute. Under Art. 62, states can only intervene only if they have an "interest of a legal nature which may be affected by the case". On the other hand, by Art 63/2, states are not obliged to demonstrate a legal interest to intervene if the case pertains to the interpretation of an international convention. The most important reason for such a distinction is the protection of the convention itself in question rather than the individual interests of States.

South Africa instituted proceedings against Israel for violations of the Genocide Convention. In 2019, relying on Art. 9 of the Genocide Convention, Gambia instituted proceedings against Myanmar, claiming that Myanmar failed to fulfill its obligations under the Convention by not preventing and punishing acts of genocide committed against the Rohingya.[17] Several states, such as UK, Canada, and Denmark, intervened in this case. Türkiye became a party to the Convention on the Prevention and Punishment of the Crime of Genocide in 1950. Thus, pursuant to Article 63/2 of the Statute of the ICJ, it does have the right to intervene in the case brought by South Africa.

Conclusion

Türkiye has maintained a longstanding stance on the Israel-Palestine conflict, voicing numerous criticisms and taking steps at various political levels. In particular, the situation in Gaza has been a major concern in Türkiye's foreign policy. Thus, it is significant that Türkiye exercises its right to intervene in the case before the ICJ to align with the importance it attaches to the matter.

Bibliography

1. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] ICJ Reports 2010.

2. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) [2022] ICJ Reports 2022.

3. Jordanian-Palestinian Agreement on Holy Sites in Jerusalem, 31 March 2013.

4. Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Verbatim record 2024/13.

5. Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Written Statement of Türkiye, 20 July 2023.

6. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Namibia), Advisory Opinion, [1971] ICJ Reports 1971.

7. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Reports 2004.

8. Repertoire of the Practice of the United Nations Security Council.

9. Treaty of Peace  Between The Hashemite Kingdom of Jordan  And  The State of Israel, 26 October 1994.

10. United Nations, Charter of the United Nations, 24 October 1945.

11. United Nations General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, United Nations, 9 December 1948.

12. United Nations, Statute of the International Court of Justice, 18 April 1946.