OPINION - How binding is the UN resolution: Will Israel be out of Palestine in 12 months?

By Thierry Tardy

-The author is an Associate Researcher, Jacques Delors Institute (Paris), and Visiting Professor at the College of Europe (Bruges and Natolin).

ISTANBUL (AA) - On September 18, 2024, the United Nations General Assembly (UNGA) adopted a resolution demanding that Israel bring to an end its “unlawful presence in the Occupied Palestinian Territory” and do so within the next 12 months. The text was adopted by a vast majority of 124 votes in favor, 14 against, and 43 abstentions (12 countries did not participate in the vote). Among the countries that voted against are Israel, the United States, the Czech Republic, Hungary, and Argentina.

The UNGA resolution comes a few weeks after the advisory opinion of the International Court of Justice (ICJ) of July 19, 2024 on the “legal consequences arising from Israel’s policies and practices in the Occupied Palestinian Territory," which concluded that Israel’s occupation of the said territory was unlawful and therefore had to come to an end “as rapidly as possible." Noticeably, the ICJ text included all territories occupied since 1967, the West Bank, the Gaza Strip, as well as East Jerusalem—in the singular “Occupied Palestinian Territory.”

Both texts also assert that the “Israeli settlements and their associated regime, including the transfer by Israel of settlers to the West Bank, including East Jerusalem […] have been established and are being maintained in violation of international law.”

- What binding force?

This said, the recurrent issue is that of the legal force of the texts adopted. As a matter of fact, neither the advisory opinion of the ICJ nor the UNGA resolution are legally binding, i.e., they do not constitute decisions that carry a binding force against the parties or states that are concerned. This results from their legal characteristics as defined by the relevant treaties. Within the United Nations (UN), only texts adopted by the Security Council are legally binding, while texts adopted by the General Assembly are not. Similarly, only the ICJ judgments and orders are legally binding (and only when parties have first consented to the ICJ jurisdiction over a particular case), not the advisory opinions. Of course, there is a sense of injustice when texts adopted by global institutions with large majorities are simply dismissed by the parties first concerned. Yet, no state would consent to endow international organizations they belong to with legally binding power without a number of safeguards.

Also, there is no guarantee that legally binding texts would have a stronger impact on states that are determined to pursue a particular path and to face the legal and political consequences. As a matter of fact, the ICJ issued an order on January 26, 2024 on provisional measures in relation to Israel’s operation in the Gaza Strip. Such text carries binding force and requested Israel to take “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians” and to take “all measures within its power to prevent and punish the direct and public incitement to commit genocide” in the Gaza Strip. There is no evidence that such an order altered Israel’s policy.

-The unlawful character of Israel’s policy is undeniable

Nonetheless, the first 2 texts assert a number of facts that cannot be easily contested. Of course, the UN General Assembly is a body composed of all UN member states (193), and, as such, adopts texts that tend to reflect the political positions of the majority. However, the fact that the General Assembly draws on an opinion of the ICJ, the highest judicial organ of the UN, does change the situation. The issues at stake and the observations made are legally grounded, and furthermore, at least as far as the ICJ is concerned, they carry moral authority; they cannot be dismissed on the basis that they would simply be politically motivated.

In contrast, there is little doubt that the countries that voted against last week’s UNGA resolution did so on political rather than legal grounds. A number of countries that abstained invoked the fact that they could not vote in favor of a resolution that does not spell out Israel’s right to defend itself. Indeed, such a statement would have given the resolution an even stronger weight. Yet the fact is that the unlawful character of Israel’s policy in the Palestinian Territory has been established. In the UN’s General Assembly high-level debate this week, no state or political entity, be they in the Middle East, Europe or North America, can seriously and in the long run deny it.

*Opinions expressed in this article are the author's own and do not necessarily reflect the editorial policy of Anadolu