While the International Court of Justice is currently deliberating a case brought by South Africa, charging Israel with “genocidal acts” against Palestinians in its brutal military campaign in Gaza following Hamas’ deadly terror attack on Oct. 7, 2023, there’s another ICJ case involving Israel that’s currently pending.
The Southeast Asian nation of Indonesia is taking the lead in a separate proceeding with the United Nations’ main judicial body based in The Hague, Netherlands, regarding Israel’s longstanding “occupation” of Palestinian territory.
The U.N. General Assembly formally requested an “advisory opinion” from the ICJ on the matter of “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem” in a resolution adopted on Dec. 30, 2022. After the ICJ accepted non-public written statements in 2023, oral hearings for the case are set to begin in February, in which at least Indonesia and Slovenia will take part.
Indonesia’s Foreign Minister Retno Marsudi announced last week that she will deliver an oral statement on the opening day of hearings, Feb. 19, and that she recently convened in Jakarta around 50 international law experts to help prepare for the statement.
“International law must be upheld,” Marsudi said. “The right of the Palestinian people to self-determination must be respected. Israel’s occupation of Palestine, which has lasted for more than 70 years, will not erase the right of the Palestinian people to independence.”
Slovenia’s Minister of Foreign and European Affairs Tanja Fajon announced earlier this month that Slovenia will also participate in the hearings on Feb. 23.
“This is a very broad spectrum of alleged violations that have been committed in the region for decades and whose horrific consequences are still visible today,” Fajon said. “In the light of recent events in Gaza and the West Bank, Slovenia, as one of the few EU countries, has decided to actively participate and present its views in these proceedings.”
How is this case different from the South Africa one?
The ICJ entertains two types of cases: legal disputes among member states and requests by U.N. bodies or agencies for advisory opinions on legal questions.
Unlike the ICJ’s genocide case, which was lodged by South Africa against Israel, no country is officially spearheading the proceedings for an advisory opinion on Israel’s occupation of Palestinian territory. Rather, the case was brought by the U.N. General Assembly, and various states like Indonesia are participating by offering their expertise and perspectives to the court.
In the genocide case, South Africa has charged that Israel has violated the Genocide Convention in its ongoing military campaign in Gaza that has reportedly left more than 25,000 dead, and South Africa is seeking provisional measures “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide.” Israel has denied the charges, insisting that its war is with Hamas, not the Palestinian people. It’s unclear how long it will take the ICJ to come to a ruling, which will be legally binding though unenforceable.
The advisory opinion case is much broader, seeking an opinion on the legality of Israel’s decadeslong occupation of Palestinian territory. The two questions put before the court are:
What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?
How do the policies and practices of Israel referred to [above] affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?
The United States was among 26 U.N. member states that voted against the resolution to request an advisory opinion from the ICJ on these questions. State Department spokesperson Ned Price described the case last March as “counterproductive,” saying it “will only take the parties further away from the objective of a negotiated two-state solution.”
A bipartisan group of U.S. lawmakers urged the Biden Administration to “use all diplomatic tools available to support Israel at the ICJ” in a June letter to Sec. of State Antony Blinken. “Weaponizing the UN system to delegitimize and criminalize Israel will not lead to peace, which must be negotiated directly by Israel and the Palestinians,” the letter stated.
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Standard procedure for requests for ICJ advisory opinion cases dictates that states and international organizations that wish to participate first submit confidential written statements by a specified deadline. In August 2023, the court announced that 57 statements were submitted, including by Indonesia, Israel, the State of Palestine (a U.N. observer state), the U.S., the Organisation of Islamic Cooperation, and others. Then participating states and organizations are given a window to submit further comments, which are also confidential, responding to the initial statements. The court announced in November that 15 comments were submitted, including by Indonesia and the U.S.
The written proceedings, which are now concluded, are followed by oral proceedings, which will begin in February with Indonesia’s statement before the court. After the hearings are concluded, the ICJ will deliberate and eventually issue its advisory opinion.
What is an advisory opinion?
Advisory opinions by the ICJ are—with rare exception—not legally binding, but Holger Hestermeyer, professor of international and EU law at the Vienna School of International Studies, tells TIME that they are still powerful. “It is after all rendered by the highest court in the international system,” he says.
According to the ICJ, advisory opinions “carry great legal weight and moral authority. They are often an instrument of preventive diplomacy and have peace-keeping virtues. Advisory opinions also, in their way, contribute to the elucidation and development of international law and thereby to the strengthening of peaceful relations between States.”
“The requesting organ, agency or organization remains free to decide, as it sees fit, what effect to give to these opinions.”
Why is Indonesia taking the lead?
Indonesia is the only country so far that has submitted a written statement as well as written comments and that is also confirmed to participate in the oral hearings for this ICJ case.
Indonesia has long been a supporter of the Palestinian cause and a critic of Israel, with which it has no formal diplomatic relations. However, while “morally and politically” backing South Africa’s genocide case against Israel, it could not have lodged such a case itself because—unlike South Africa, Israel, and more than 150 other nations worldwide—Indonesia (with its own history of mass killings and occupation) is not a party to the Genocide Convention.
Evan Laksmana, senior fellow at the International Institute for Strategic Studies, tells TIME that Indonesia’s historic enthusiasm to push on the international stage in support of Palestinians is “very much driven” by domestic politics in the Muslim-majority nation.
Anti-Israel sentiment persists in the country to such a degree that FIFA, the global governing body of soccer, stripped Indonesia of its hosting duties for last year’s Under-20 World Cup after politicians and citizens fiercely opposed the participation of Israel’s youth team.
“The foreign ministry,” Laksmana says, “would be in a difficult position if they are not seen by the public and political elites to not be doing their best to champion the Palestinian cause.”
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