In a press release, the International Court of Justice (ICJ) announced on 7 August 2023 that it had received a number of legal opinions from states and international organisations in preparation for the advisory opinion it is due to deliver on the prolonged occupation and colonisation of Palestinian territory by Israel: see official ICJ press release in English and French.
Among the 57 opinions registered, from the American continent, submissions were received (in chronological order) from Canada, Chile, Guyana, Brazil, Belize, the United States, Bolivia, Cuba, Colombia and Guatemala, while no organisation from this continent sent any submissions (unlike, for example, the African continent, with an opinion from the African Union, in addition to those from two other international organisations: the League of Arab States and the Organisation of the Islamic Conference).
From the Middle East, submissions were received from (in chronological order) Turkey, Jordan, Lebanon, Israel, Syria, Palestine, Egypt, Saudi Arabia, Qatar, Yemen, United Arab Emirates, Oman and Kuwait.
This is the second time in history that the advisory procedure has been used before the ICJ to address the situation in Palestine: in 2004, the ICJ rendered an advisory opinion on the legal consequences of Israel’s construction of a wall in Palestinian territories (see full text with, in paragraph 9, the chronological list of legal opinions received from states and international organisations).
A brief background
As will be recalled, on 30 December 2022, the United Nations General Assembly adopted a resolution confirming and ratifying one previously adopted in November 2022 (Note 1): in it, the ICJ was asked to give an advisory opinion on the situation in the Palestinian Territory (see official UN communiqué).
The ICJ’s advisory procedure is regulated in articles 65-68 of its Statute (see text).
This request was formally registered on 19 January in The Hague (see official ICJ communiqué in English and French dated 20 January 2023). It should be noted that the advisory procedure allows the ICJ to receive legal opinions from both states and international organisations.
The two questions put to the international judge
The two questions put to the ICJ contained in resolution A/Res/77/247 (see text) are the following (paragraph 18):
“(a) What are the legal consequences of Israel’s continued violation of the right of the Palestinian people to self-determination, its prolonged acts of occupation, settlement and annexation of the Occupied Palestinian Territory since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and Israel’s adoption of related discriminatory legislation and measures?
(b) How do Israel’s policies and practices referred to in paragraph 18(a) affect the legal status of the occupation and what are the legal implications of that status for all States and for the United Nations?”
We have had the opportunity to analyse and put into perspective the previous vote, which took place on 11 November 2022 in the Fourth Committee of the General Assembly, and to point out the profound fear that it had aroused in the highest Israeli authorities: see our article entitled “Palestine: Israeli occupation and colonisation soon to be examined by the International Court of Justice (ICJ)”.
This fear heralded diplomatic efforts at the highest level, which were indeed deployed by Israel and its loyal US ally from 11 November onwards to stop this initiative at all costs. As we analysed in the case of Latin America, these attempts had a very limited effectiveness, with very few exceptions (one of them being Costa Rica): see our article entitled “Latin America in the face of a request for an advisory opinion from international justice on the situation in Palestine: brief notes on Costa Rica’s unusual vote against”.
The extent of diplomatic pressure exerted between the two votes
On 11 November, in the Fourth Committee of the General Assembly, the result was 98 votes in favour, 17 against and 52 abstentions. In the vote held on 30 December in the General Assembly as such, the result was 87 votes in favour, 26 against and 53 abstentions.
The voting table reproduced below shows in detail which states succumbed to all kinds of pressure from the Israeli diplomatic apparatus and its staunch US ally. This table also makes it possible to predict the probable position that was sent in the legal opinion submitted to the ICJ in The Hague before 28 July 2023.
It should be noted that these diplomatic demarches did not produce any major effects, with a few exceptions: the only – somewhat peculiar – case of a state that voted in favour in November and then voted against in December (Kenya). As is customary in such contests, no official explanation has been given for the sudden change of position of the Kenyan delegate to the UN.
The vote of Latin American States in 2022: Guatemala and Costa Rica the only ones to vote against
When reviewing in detail what happened between November (first vote) and December (second vote), in Latin America, Guatemala maintained its vote against in both votes.
It should be noted that Guatemala was the only Latin American State to vote against during the vote in November 2022. It is worth recalling that Guatemala was the only State in the world to feel obliged to “second” the then President of the United States in 2018, also moving its embassy to Jerusalem after the United States did so (see France24 article of May 2018). At the time Guatemala officially recognised Jerusalem as the capital of Israel on 24 December 2017, we had the opportunity to write that:
“After the failure obtained at the United Nations, first in the Security Council, with a marked result of 14 votes against the sole American veto, and then in the General Assembly (128 votes in favour, 9 against), for the United States and Israel to have another state to agree with the US decision was a top priority: Guatemala now allows them to materialise it” (Note 2).
Returning to the General Assembly resolution requesting an advisory opinion from the ICJ, in this second vote on 30 December 2022, it should be noted that Ecuador, Haiti, Honduras and Uruguay maintained their previous abstention in November. It is worth noting that although these four states (like many others) were pressured by Israel and its loyal US ally, they chose to maintain their position unchanged.
On the other hand, it is worth noting the sudden change of position between the 11 November and 30 December vote of the following states: Brazil voted in favour on 11 November and abstained on 30 December. The same happened with the delegations of Panama and the Dominican Republic. It is interesting to note that Brazil’s vote took place while its president was already on his way to the United States, declining to participate in the inauguration ceremony of the newly elected Brazilian authorities on 1 January 2023: the latter were able to count on the presence of the head of Palestinian diplomacy by personally attending the ceremony (see the interesting interview conducted by Correio Braziliense on 3 January 2023, which augurs a renewed strengthening of relations between Brazil and Palestine).
Costa Rica and Colombia: a striking exercise in change of position
The cases of Costa Rica and Colombia, which had both abstained in the first vote on 11 November 2022, are considered much more striking.
– Costa Rica, which abstained on 11 November, went on to vote against on 30 December, joining 25 other states (among which reappears the group of states that, year after year, automatically seek to protect Israel at the UN, namely Australia, Canada, the United States, the Marshall Islands, Micronesia, Nauru and Palau). Unless we are mistaken, no official explanation has been given for this sudden change of position by the Costa Rican diplomatic apparatus;
– Colombia, for its part, opted to change its position and vote in favour of the resolution.
As will be recalled, Costa Rica recognised Palestine as a State since February 2008, while Colombia did so only in August 2018: see article in El Pais of Spain and DW’s article explaining that this act by the Colombian Executive took place on the last day of the Presidency of Juan Manuel Santos. Bearing in mind that Colombia became the last state in Latin America to have made this recognition, Costa Rica’s sudden change of heart in December 2023 at the UN General Assembly is even more difficult to understand.
It is the first time in many years that Costa Rica has voted so singularly on the Palestinian issue, a state that had managed to distance itself from Israel since 2006, after a long period in which Costa Rica adopted positions very close to those sought by Israeli diplomacy at the United Nations. Former Costa Rican foreign minister Bruno Stagno (2006-2010) said:
“I recalled two cases that in one way or another reflected the intricate, but still veiled set of interests that came into play when dealing with the Israel issue. As Ambassador, Permanent Representative to the United Nations, I had lived and suffered through it. I remembered how, in order to mark me on votes on the Middle East situation, the then Costa Rican Ambassador in Washington DC, Jaime Daremblum, alienated some members of the US Congress, so that they would send me letters urging or instructing me to vote in favour of Israel. Congressman Tom Lantos would be the most insistent, even addressing President Pacheco de la Espriella directly. I also recalled the indignation with which Ambassador Emeritus Emilia Castro de Barish commented on how in the past it had been accepted that an official of the Permanent Mission of Israel would sit in the second row of seats, reserved for Costa Rica, in order to ensure Costa Rica’s “correct” vote” (Note 3).
In Europe, the states that abstained in November and voted against in December 2022 were Croatia, the United Kingdom and Romania.
To recapitulate from the voting board, only Guatemala and Costa Rica from Latin America as a whole voted against the resolution.
The unbreakable “coalition” in the UN that Israel can always count on
As has become customary in such UN contests, an observer will recognise among the ‘hard core’ of states that consistently oppose any pro-Palestinian language, including Australia, Canada, the Marshall Islands, Israel, Micronesia, Nauru, Palau and the United States, among the ‘no’ votes. In general, this small core group manages to attract occasional and circumstantial votes (whether from Europe, Africa or Central America).
As one example, among many others, when in November 2012 the General Assembly recognised Palestine as a “Non-Member Observer State” by adopting resolution A/Res/67/19 (138 votes in favour, 9 against and 41 abstentions), this odd association of states was joined by Panama and the Czech Republic (see official UN communiqué). To date, Panama persists in remaining the only Latin American state not to formally recognise Palestine as a state.
In the same way (9 votes against), in a vote in the General Assembly on the obligation not to transfer embassies to Jerusalem in December 2017, with 128 votes in favour and 35 abstentions (see official UN press release): it should be noted that this was a very similar text that was the subject of a previous vote in the Security Council, in which the United States alone voted against (veto) against 14 votes in favour (see our note on this subject).
This curious “coalition”, to use the term used by the Washington Post in 2012 (see article), was also expressed in 2021, during the vote on resolution A/RES/76/225 (see text), with 7 votes against, against 156 votes in favour and 15 abstentions (see details of the vote): far from being a circumstantial alliance, the ties that unite its members appear to be those of a real, lasting and fairly solid front.
In 2022, these ties reappeared during the vote on the resolution entitled “Non-violent settlement of the question of Palestine” A/77/L.26, adopted on 30 November 2022 by 153 votes in favour, 9 against and 10 abstentions (see details of the vote during which Hungary and Liberia joined the aforementioned “coalition”, Australia having finally abstained).
This already small group can sometimes be even smaller: one of the most modest expressions in number of votes of the so-called “coalition” (4 votes: United States, Israel, Marshall Islands and Micronesia) is certainly this resolution voted in October 2003 on the construction of the wall built by Israel on Palestinian territory, adopted with 144 votes in favour and only 4 against (see the official UN communiqué). In the case of resolution, A/RES/ES-10-15 voted on 20 July 2004 urging Israel to implement the ICJ’s advisory opinion of the same month, the vote was 150 in favour, 10 abstentions and six votes against (Australia, United States, Marshall Islands, Israel, Micronesia and Palau).
Beyond the (rather limited) effect of the pressure exerted by Israel and the United States to stop this initiative, the fact remains that this resolution was adopted and ratified in December 2022. It was subsequently referred to the international judge in The Hague in early 2023 to examine the situation in Palestine in the light of current international law.
As indicated, the consultative procedure before the ICJ allows for the submission of written submissions both by other states and by international organisations. In the first case, it is very likely that Israel and the United States persuaded some foreign ministries to draft legal opinions in favour of Israel, as happened in a similar consultative procedure before the ICJ in 2003-2004 in relation to Israel’s construction of a wall on Palestinian territory (Note 4): On that occasion, resolution ES/10/14 (see text) requesting such an opinion from the ICJ was adopted on 8 December 2003 with 90 votes in favour, 8 against – Australia, Ethiopia, Israel, Marshall Islands, Micronesia, Nauru, Palau and the United States – and 74 states opting to abstain. Notably, no Latin American State voted against at the time (Note 5). In the second case – legal opinions of international organisations – when transmitting the request for an advisory opinion to the ICJ on 17 January 2023 (see letter), the UN Secretary-General informed the ICJ that his services were already preparing a document that would be useful to the judges in their future deliberations:
“In this regard, I would like to further inform you that, pursuant to Article 65, paragraph 2, of the Statute of the Court, the Secretariat will start to prepare a dossier containing a collection of all relevant documents that are likely to throw light upon these questions. The dossier will be transmitted to the Court in due course”.
At a time when the United States and Europe seek to convince the rest of the world of the imperative need to strongly condemn Russia for the military aggression suffered by Ukraine since 24 February 2022, for the intentional destruction by Russia of public infrastructure that allows the subsistence of the Ukrainian civilian population, the two votes related to Palestine in the last months of 2022 evidenced the inconsistency of many, by not wanting to allow the ICJ to examine the application of these same international norms in the Palestinian territory.
Is it not in the interest of any Member State of the United Nations and of the international community as such that these same rules, rightly invoked by Ukraine, be applied uniformly and duly respected by all other states, including Israel (Note 6)? Is it not the right of any state to appeal to an international judicial body such as the ICJ when it considers itself the victim of violations by another state of rules in force in the international legal order?
This second question should ask ourselves of the states that already officially recognise Palestine as a state (currently totalling 138), a recognition in which Costa Rica played a notorious and decisive role in Latin America (Note 7).
Note 1: The text of the resolution adopted by the UN General Assembly on 11 November 2022 is available in the various official languages here. For the few studies on this first resolution, see POWER S., “UN General Assembly Committee Adopts Resolution Requesting Second Advisory Opinion from ICJ on Occupied Palestinian Territory”, EJIL-Talk, 20 December 2022 edition, available here. As well as this very comprehensive 13-question booklet by Diakonia, Centre for International Humanitarian Law (no authors indicated), “The ICJ advisory opinion on the legal consequences of Israel’s occupation of Palestinian territory”, November 2022, available here.
Note 2: See in this regard our analysis in BOEGLIN N., “La desafortunada decisión de Guatemala de trasladar su embajada a Jerusalén: breves apuntes”, DerechoInternacionalcr, edition of 29/12/2017. Text available here.
Note 3: See STAGNO UGARTE B., Los caminos menos transitados. La administración Arias Sánchez y la redefinición de la política exterior de Costa Rica, 2006-2010, Heredia, Editorial UNA (EUNA), 2013, pp. 70-71.
Note 4: The same ICJ in 2004 issued an advisory opinion on the legal consequences of Israel’s construction of a wall in occupied Palestinian territory. The question that had been put to the international judge in 2003 by the General Assembly in Resolution ES/10/14 (see text) adopted with 90 votes in favour, 8 against and 74 abstentions (see official communiqué) was as follows: “What are the legal consequences arising from the construction of the wall being erected 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, taking into account the rules and principles of international law, including the Fourth Geneva Convention of 1949 and the relevant Security Council and General Assembly resolutions? “. In the period 2003-2004, almost 50 states submitted their legal opinion to the ICJ (see official link to the documents submitted by these states). In the text of the advisory opinion released only seven months after, and whose full reading is recommended, it will be noted that the operative part – paragraph 163(2) – was adopted with 14 votes in favour and only one against, the American judge Thomas Buergenthal. In this other link of the same ICJ, you can read the text in Spanish of this important advisory opinion of 2004.
Note 5: Regarding the vote on resolution ES/10/14 of 8 December 2003, in Latin America, Argentina, Brazil, Cuba, Haiti, Mexico, Panama voted in favour, and the following States abstained: Bolivia, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela.
Note 6: On the case of Ukraine and Russia, we refer to our brief analysis of Russia’s failure to appear before the judge in The Hague: BOEGLIN N., “La fuerza del derecho ante el derecho a la fuerza. A propósito de la no comparecencia de Rusia ante la Corte Internacional de Justicia (CIJ)”, Portal de la Universidad de Costa Rica (UCR), Voz Experta section, 23 March 2022 edition. Text available here.
Note 7: Costa Rica’s recognition of Palestine as a state in February 2008 reactivated support for Palestine as a state in Latin America and other parts of the world. Following Costa Rica’s recognition, Latin America responded to this call by making a similar gesture in favour of Palestine: in chronological order, Venezuela (April 2009), the Dominican Republic (July 2009), Bolivia, Brazil, Ecuador and Paraguay (December 2010), Peru and Chile (January 2011), Argentina (February 2011), Uruguay (March 2011), El Salvador and Honduras (August 2011) and Guatemala (April 2013). In August 2018, Colombia proceeded to recognise Palestine as a state. It should be noted that an official Palestinian request made in 2011 to the Security Council to become a full Member State of the United Nations (see note) is still waiting to be resolved: the fact that it has not been resolved by the beginning of 2023 has not in the least prevented 138 States from formally recognising Palestine as a State; and that since 2012, Palestine has been granted the status of “Non-Member Observer State” by the United Nations General Assembly, allowing it to accede to a number of multilateral treaties. In case of doubt on the point of knowing if, legally, a non-member state of the United Nations has this legal capacity, it suffices to recall that Switzerland was not a member of the United Nations until 10 September 2002.