Written statement of the Russian Federation

INTERNATIONAL COURT OF JUSTICE
Legal Consequences arising from the Policies and Practices of Israel
in the Occupied Palestinian Territory, including East Jerusalem
(Request for advisory opinion)
WRITTEN STATEMENT
BY THE RUSSIAN FEDERATION
24 July 2023
TABLE OF CONTENTS
I. Introduction. 1
II. Jurisdiction of the Court. 4
III. Discretion. Fairness of proceedings. 6
IV. Scope of the questions put before the Court. Applicable law. 10
V. Role of the Court as a Principal Organ of the United Nations. 15
VI. The advisory opinion and final status negotiations. 18
VII. Qualification of Israel's conduct with regard to international law. 21
VIII. Legal consequences of violations. 23
IX. Conclusion. 25
I. Introduction
1. Twenty years after the Advisory Opinion on the Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory, the Court is
again seized of a question related to the Palestinian-Israeli conflict, one of the most
complex and politically sensitive issues on the international agenda for decades.
These proceedings coincide with a number of other politically-loaded cases on the
Court's docket. Some applications have been brought before the Court in the
middle of acute political crises, such as those between Armenia and Azerbaijan and
between Ukraine and the Russian Federation. Others relate to more medium- and
long-term problems on which there are serious political disagreements between
States, such as the several proceedings involving Iran or the request for an advisory
opinion on climate change.
2. One may argue that involving the Court in such matters is a positive trend,
reflecting the will of States to resolve disagreements on the basis of international
law. Unfortunately, this logic is not always correct. We are witnessing attempts to
instrumentalize the Court, essentially to abuse its procedures in order to reach
short-term political goals.
3. The task of the Court in such cases is an extremely delicate one. It has to
remain faithful to its functions and at the same time not to encourage a further
spread of 'lawfare' strategies. Moreover, the Court should be mindful of the fact
that, as practice shows, formal justice is not always conducive to efficient
settlement of conflicts. The erosion of authority of the International Criminal Court
illustrates what happens to an international judicial institution that chooses to
submit to one-sided political pressure and ignores the wider conflict-settlement
interests of the world community.
4. To be sure, the current case is not an example of abuse of the Court. Yet
its heavy political dimensions are to be borne in mind.
2
5. The present request for an advisory opinion strikes at the very heart of the
contradictions between Israel and Palestine. Ever since the dismantlement of the
Ottoman Empire, the international community has been taking efforts in order to
secure a settlement whereby the interests of the Arab and Jewish populations of the
historic Palestine would be best served. A vision of two States, one Jewish and one
Arab, has been guiding those efforts after the Second World War. The people of
Israel have realized their right to self-determination and are happily living in their
own State. The Palestinians are yet to realize this dream of several generations. To
much regret, policies adopted by Israel are a major obstacle in that regard. The task
of the Court is to give a legal assessment to those policies, and to do so in a way
that would help, rather than further complicate, finding long-term solutions with an
independent, viable and contiguous Palestine emerging as a full-fledged State
living in peace with Israel. The Russian Federation is happy to contribute to this
task, both within these proceedings and in its wider diplomatic efforts.
6. Russia has for a long time been a champion of Palestinian rights and
Palestinian statehood, and has recognized the State of Palestine. Russia enjoys
cordial relations with both Palestine and Israel. These relations are based on deep
historical, cultural and people-to-people ties, not least the spiritual value of the
Holy Places of Jerusalem for the Christian, Muslim and Jewish communities of
Russia.
7. This ability to be on friendly terms with both sides of the protracted
conflict allows Russia to play a particularly important role as a mediator of
negotiations between them. In this spirit, Russia has co-sponsored, together with
the United States, the 1991 Madrid Conference that paved the way for the
landmark Oslo Accords, and has been, since 2002, part to the Quartet, alongside
the United Nations, the United States and the European Union.
8. It is regrettable that the Quartet process has stalled in the recent years. The
United States' unilateral efforts whereby issues of economy and security are
3
singled out and discussed without a broader strategic v1s10n, are nothing but
imitation. They essentially serve to legitimize the 'facts on the ground'.
9. Meanwhile, the situation in Palestine continues to deteriorate. Israel is
expanding its unlawful settlements in the Occupied Territory, goes on with
confiscation of Palestinian land and demolition of Palestinian homes, establishes
closed military areas, encourages further Judaization of East Jerusalem and a
change of the status quo of the Holy Places, in particular the Al Aqsa mosque.
Armed operations by Israeli security forces have resulted in 181 Palestinian deaths
in 2022 and more than 150 in the first half of 2023 alone. These victims regularly
include civilians, not least women and children.
10. The negative trends in Palestine are in contrast to the broader picture in
the Middle East, characterized by more healthy relations between States and
gradual stabilization of conflict zones. The Russian Federation is convinced that
resuming direct Palestinian-Israeli negotiations on a final status settlement based
on the two-State formula is long overdue. It is the only scenario that will satisfy the
aspirations of Palestinians and neutralize threats to the security of Israel. It is also
indispensable for stability across the Middle East.
11. The status of the Russian Federation as a mediator dictates a responsible
approach to the current proceedings. This Written Contribution will therefore
primarily address issues of procedure and proper administration of justice. There is
no need for Russia to go into specific issues of substance that have to be
considered by the Court: other participants will undoubtedly do so in detail, and
more eloquently than Russia might have done. This Contribution will thus focus on
the Court's jurisdiction, discretion and, most importantly, on the Court's role as a
Principal Organ of the United Nations and its advisory opinions as a contribution
to the activities of the Organization.
4
II. Jurisdiction of the Court
12. It is well established in the jurisprudence of the Court that it must first
satisfy itself that it has jurisdiction to give the opinion requested.1 As in several
previous advisory proceedings before the Court, one is to expect certain
participants to challenge the Court's jurisdiction. In the past, it was challenged on
account of the opinion being allegedly requested by a body not competent to do so;
of the request pertaining to a question that is not a legal one; of the question raised
being abstract in nature, lacking clarity, or not reflecting the real issue at stake, or
else being of a political character. It is worth making several comments in this
regard.
13. The present request for an advisory opm10n has been made by the
General Assembly, a body authorized to request such an opinion "on any legal
question".2 That, when it comes to the General Assembly, "any legal question"
means precisely any, was confirmed by the Court on numerous occasions.
Furthermore, in a number of previous advisory opinions, the Court confirmed that
the limitation of powers of the General Assembly provided for in Article 12 of the
Charter does not deprive the Assembly from the authority to request an advisory
opinion. Importantly, this was reiterated specifically with regard to the matters
relating to Israel and Palestine in the Advisory Opinion on The Wall. 3 There being
no doubt that the General Assembly Resolution 77 /24 7 was adopted in full
conformity with established procedures and within the powers conferred on the
Assembly by the Charter, it is clear that the opinion in the present case is being
requested by a body duly authorized to do so.
1 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (hereinafter Nuclear
Weapons), para. 10; Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion (hereinafter The Wall), para. 13; Accordance with
International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory
Opinion (hereinafter Kosovo), para. 17.
2 Article 96, paragraph 1 of the UN Charter.
3 The Wall, paras. 25-28.
5
14. The questions being asked of the Court are legal in nature. Indeed, the
questions raised in paragraph 18 (a) and in the final passage of paragraph 18 (b) of
Resolution 77 /24 7 follow the now standard wording of requests for advisory
opinions: "What are the legal consequences of ... ?". The Court has previously
dealt with questions similarly framed in the Namibia, The Wall and Chagos
Advisory Opinions and has always confirmed that the questions thus posed are
"framed in terms of law", "raise problems of international law", and are
"susceptible of a reply based on law".
15. In the first part of paragraph 18 (b) of the Resolution, the General
Assembly is asking the Court to determine how policies and practices of Israel
"affect the legal status of occupation". One has to accept that this question is open
to criticism as being "abstract" or "unclear". The Court has dealt with similar
doubts notably in The Wall, stating that "lack of clarity in the drafting of a question
does not deprive the Court of jurisdiction. Rather, such uncertainty will require
clarification in interpretation".4 There is every reason for the Court to follow this
logic in the present case and to interpret the words "the legal status" taking into
account the positions of all participants to the proceedings.
16. By the same token, the Court will have every reason to follow its
established practice when assessing whether the political aspects of the questions
posed deprive it of jurisdiction to give an advisory opinion. Indeed, the political
dimension of the Namibia, Kosovo, Chagos, The Wall or Nuclear Weapons cases is
hard to over-estimate. Yet the Court has invariably rejected the assertion that this
political dimension deprives the questions of their legal character. After all, the
General Assembly (and, for that matter, the Security Council) is a political organ
by its very nature, and seeking an advisory opinion of the Court is inevitably an
element of its political activities. To limit the Assembly's power to request an
advisory opinion to purely legal matters free from political elements (if any such
matters exist in the real world) would render meaningless the logic of the Charter
4 The Wall, para. 38.
6
whereby the two principal political organs, the Assembly and the Security Council,
are supported in their proceedings by the principal judicial organ, the Court. In
view of the Russian Federation, for those political proceedings to be informed,
where necessary, by legal input from the Court, corresponds to the purposes of the
Charter and to the idea of international relations to be governed by international
law.
17. The Russian Federation therefore submits that the Court undoubtedly has
jurisdiction to give an advisory opinion in the present case.
III. Discretion. Fairness of proceedings.
18. The next question that the Court is likely to consider is whether there are
compelling reasons for it to decline to exercise its jurisdiction. Indeed, the Court
was requested to do so on numerous occasions, and one is to expect that this will
be the case in the present proceedings.
19. The Court has previously been asked to decline to exercise jurisdiction
for the reason that the request for advisory opinion was essentially a contentious
matter between two States; that an opinion would not assist the General Assembly
in the performance of its functions or else would not serve any useful purpose; that
an opinion would circumvent the principle of 'clean hands'; that the Court did not
have at its disposal the requisite facts and evidence or that the factual issues were
so complex that were not suitable for determination in advisory proceedings; that
the Court would be going beyond its judicial role and would be taking upon itself a
law-making capacity; or that an advisory opinion would negatively impact political
negotiations related to the matter raised.
20. The Court has invariably rejected these arguments. Most importantly for
the present case, nearly all of these reasons were invoked by participants to The
Wall proceedings. The Court, having examined each of these arguments, found that
they did not constitute "compelling reasons" to decline to exercise jurisdiction. In
7
the current proceedings some of those arguments possibly have more weight than
they had in previous advisory proceedings before the Court. Yet the Russian
Federation does not find that they reach the threshold of becoming "compelling
reasons" that would lead the Court to exercise its discretion not to give an advisory
opm10n.
21. That the occupation of Palestine by Israel is not purely a bilateral matter
has been convincingly explained by the Court in The Wall Advisory Opinion. The
Russian Federation fully supports the Court in giving legal weight to the position
of the General Assembly on its "permanent responsibility towards the question of
Palestine until the question is resolved in all its aspects in a satisfactory manner in
accordance with international legitimacy". 5
22. The Court has never questioned the reasoning that had led the General
Assembly to request an advisory opinion. "It is not for the Court itself to determine
the usefulness of its response to the requesting organ". 6 In the present case, one is
to note that the General Assembly resolution seeking an advisory opinion,
Resolution 77 /24 7, was the latest in a series of resolutions adopted by the
Assembly on a yearly basis since at least 1996.7 That the Assembly, after
considering an issue for nearly thirty years, has come to a conclusion that an
advisory opinion from the Court would be useful for its further deliberations, is
compelling evidence to the effect that the Assembly did not request the opinion by
chance, by mistake or out of curiosity, but did so in full recognition that an opinion
would indeed be a useful contribution to its work.
23. In The Wall, the Court squarely rejected the 'clean hands' argument,
explaining that it is not relevant when it comes to an advisory opinion requested by
the General Assembly. There is no reason to depart from this conclusion in the
5 The Wall, para. 49
6 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion (hereinafter Chagos), para. 76.
7 See General Assembly Resolutions 51/134, 52/67, 53/56, 54/79, 55/133, 56/62, 57/127, 58/99,
59/124, 60/107, 61/119, 62/109, 63/98, 64/94, 65/105, 66/79, 67/121, 68/83, 69/93, 70/90, 71/98,
72/87, 73/99, 74/89,75/98.
8
present case. However, as will be explained below, the rationale behind this
argument is not entirely without bearing on the advisory opinion to be delivered.
24. An alleged lack of requisite facts and evidence is clearly not a valid
argument in the present case. If anything, the work of the Court will be
complicated not by an alleged lack of facts but by their abundance, not least thanks
to the dossier submitted to the Court by the Secretary-General. On the other hand,
the question of suitability of advisory proceedings for determining complex and
disputed factual issues might have a bearing on the current case.
25. The risk of the Court going beyond its judicial role is much less obvious
m this case than it was in the Nuclear Weapons or than it will be in the
forthcoming Climate Change proceedings. Indeed, here, the Court is primarily
being called to establish "legal consequences" of ( alleged) violations of
international law. By definition, this means a law-applying rather than a lawmaking
exercise. Therefore, if this argument is raised, it should be rejected by the
Court, as it duly was in the Nuclear Weapons Advisory Opinion.8
26. Finally, and most importantly for the present proceedings, the Court will
have to determine_ whether it should decline to exercise its jurisdiction because an
advisory opinion could impede political negotiations on the Palestinian-Israeli
conflict. For the moment, it is suffice to say that the Court will have good reasons
to follow its decisions in the Nuclear Weapons and The Wall cases - namely, to
reject the notion that this aspect should serve as a deciding factor in exercising
discretion not to give an advisory opinion, but to take it into account when giving
an opinion.9
27. Having thus outlined the various possible grounds for challenging the
appropriateness of the Court's complying with a request for an advisory opinion,
the Russian Federation submits that the Court should not decline to exercise its
jurisdiction in the present case.
8 Nuclear Weapons, para. 18.
9 Nuclear Weapons, para. 17; The Wall, paras. 51-53.
9
28. Having said that, those possible grounds, and the reasons advanced to
support them, form an important background against which the Court will be
giving its advisory opinion. It is worth focusing on those reasons in more detail in
order to ensure that the advisory opinion that will ultimately be given by the Court
will correspond to the advisory nature of the exercise and will indeed serve the
purposes of the General Assembly and the United Nations as a whole.
29. Thus, even if the matters raised in the current request for an advisory
opinion are not purely bilateral and the proceedings are not contentious, the Court
is directly being asked to ascertain violations of international law committed by
one State, without that State having consented to being brought before the Court.
Moreover, due to the advisory nature of the proceedings, limited in scope to the
questions asked by the General Assembly, that one State is not only precluded
from relying on the 'clean hands' argument, but is left entirely without options to
bring a counterclaim or to otherwise challenge the lawfulness of behaviour of other
States and non-State actors. In Russia's opinion, this circumstance dictates extra
care from the Court. The advisory opinion that it will deliver, as well as the way
the proceedings will be organized, must be, and must be seen to be, fair, balanced
and based indeed on law rather than other considerations. This means, for example,
that:
- Israel, whose supporters will likely be outnumbered by its critics, must be
given a fair amount of time during oral proceedings to defend its positions;
- The depth of investigation of facts by the Court must be commensurate to
the needs of an advisory opinion, as opposed to a contentious case;
- When dealing with facts, the Court is not to be limited to those facts ( and
their interpretation) that are included in the reports by the United Nations
Secretary-General and other United Nations bodies, but should allow Israel, and
indeed all participants, to present facts in support of their views;
10
- The Court should address the issues of Israel's responsibility for its
wrongful acts, and particularly implementation of that responsibility, only
inasmuch as this is required in advisory proceedings.
IV. Scope of the questions put before the Court. Applicable law.
30. Although the questions asked by the General Assembly correspond to
the criteria established by the Court so as to enable it to give an advisory opinion,
they require further analysis in order to determine the precise scope of the opinion
to be given. It is worth recalling the respective language of paragraph 18 of
Resolution 77 /24 7, including its grammatical and semantic structure:
- (a) 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?
- (b) How do the policies and practices of Israel referred to in paragraph
18 (a) 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?"
11
31. It will be for the Court to determine whether this language should be
read as a whole or whether the questions are susceptible of being dissected and
considered one by one; whether it presupposes, for example, a separate analysis of
legal consequences of occupation, of settlement and of annexation, and whether
these are to be addressed separately from violations of the right to selfdetermination.
Russia is interested in learning other participants' views on this
matter.
32. More importantly, the wording of paragraph 18, complex as it is and
raising a broad range of issues, is further complicated by the overall content of
Resolution 77 /24 7, which, apart from the right of the Palestinian people to selfdetermination,
or occupation, settlement and annexation of the Occupied
Palestinian Territories, or measures with regard to Jerusalem, speaks of a wide
range of more specific Israeli laws and practices. These include: systematic
violation of the human rights of the Palestinian people, excessive use of force and
military operations, arbitrary imprisonment and detention, use of collective
punishment, closure of areas, confiscation of land, destruction of property and
infrastructure, forced displacement of civilians, demolition of homes, blockade of
the Gaza Strip, obstruction of humanitarian assistance, etc. 1O
3 3. It will be for the Court to decide whether these manifestations should be
included into the notion of "related discriminatory legislation and measures" for
the purposes of paragraph 18 (a) of the Resolution, and therefore, whether the
advisory opinion should address them.
34. A careful approach is called for in this regard. On the one hand, these
specific violations may be seen as creating an important context, or having an
important cumulative value, for determining the more broad issues raised before
the Court. On the other hand, the Court cannot possibly engage in detailed scrutiny
of each and every one of these violations (which may consist of thousands of
individual episodes). This would not only mean a disproportionate workload but
10 A/RES/77 /24 7, 281
\ 31 st and 3 8th preambular paragraphs.
12
may run counter to the advisory nature of these proceedings, which by definition
are not, strictly speaking, about bringing Israel to responsibility for one violation or
another, nor about imposing specific forms and scope of that responsibility. The
Russian Federation would at this stage refrain from taking a particular stance on
this matter and is looking forward to learning the approach of other participants.
3 5. A related question arises from the fact that, in the Resolution, as well as
in numerous other resolutions, the General Assembly has already declared much of
Israeli legislation and practices as being contrary to international law. The Court
will therefore face the same problem as the one that arose in The Wall proceedings,
namely whether the Court is to assume that those practices are against international
law, and limit itself to establishing the legal consequences of such violations, or
whether it should first find that they are unlawful (or, as the case may be, lawful). 11
On this particular aspect, the Russian Federation invites the Court to follow its
conclusion in The Wall to the effect that the question "What are the legal
consequences of ... ?" "necessarily encompasses an assessment of whether [the
practice in question] is or is not in breach of certain rules and principles of
international law". 12
36. To be sure, the Russian Federation supported the Resolution. It is,
however, important, for the sake of proper administration of justice and out of
more general considerations on the nature of Principal Organs of the United
Nations and the distribution of competences between them, that the Court is not
bound by legal pronouncements of the General Assembly as such.
3 7. After all, as mentioned above, the General Assembly is primarily a
political body. Member States vote for its resolutions mostly for political reasons
rather than out of purely legal considerations. Of course, there exist resolutions
adopted by consensus or nearly so, which therefore reflect the almost unanimous
opinion of the international community, including on legal matters. Other
11 The Wall, para. 36.
12 The Wall, para. 39.
13
resolutions may reflect well established rules of international law. Yet in many
cases, legal opinions reflected in a General Assembly resolution, even if adopted
by a considerable majority, reflect primarily political interests of States voting in
favour. There is nothing wrong if those political interests include legal positions (to
be) taken on a particular matter, but the Court should treat them as such: legal
positions of a number of States voting in the General Assembly and open to
judicial reappraisal.
38. On the other hand, if the Court independently studies the matters raised
before it and, not being bound by legal determinations made by the General
Assembly, comes to similar conclusions, this will significantly strengthen the
respective positions, signalling a virtual consensus in the international community
as regards unlawfulness of many of the Israeli practices and the need to bring them
to an end.
3 9. One further element worth discussing is the "chapeau" of paragraph 18
of Resolution 77 /24 7 that requests the Court to deliver an advisory opinion
"considering the rules and principles of international law, including the Charter of
the United Nations, international humanitarian law, international human rights law,
relevant resolutions of the Security Council, the General Assembly and the Human
Rights Council, and the advisory opinion of the Court of 9 July 2004". This
wording essentially enumerates elements of applicable law on which the Court
should base its advisory opinion.
40. The Russian Federation supports the General Assembly in its choice of
law applicable to the present case. However, a couple of comments are in order.
41. First, it is to be assumed that the formula "rules and principles of
international law, including ... relevant resolutions of ... the General Assembly
and the Human Rights Council" does not purport to put those resolutions on the
level of proper sources of international law. As described above, General
Assembly resolutions can only serve as qualifications of certain situations, to the
extent that they reflect consensus or near consensus between States. This is all the
14
more so when it comes to resolutions of the Human Rights Council, a body of
limited membership, restricted mandate and controversial track record.
42. Second, Russia trusts that the Court, when applying "international
humanitarian law" and "international human rights law" for the purposes of giving
a legal assessment to various Israeli laws and practices, will see to it that it is
actually applying rules that are binding for Israel. These include rules of treaties to
which Israel is party and binding customary rules. They do not include, however,
'emerging customs' and other 'rules' that may be invoked by enthusiasts of a
'rules-based international order' but that have not found their way into
international law through proper procedures.
43. Third, it is Russia's assumption that, when mentioning Security Council
resolutions, paragraph 18 (read together with paragraph 6) refers to Resolution
2334 which, in its tum, reaffirms Resolutions 242, 338, 446, 452, 465, 476, 478,
1397, 1515, and 1850. Some of these Resolutions address specifically the problem
of Israeli settlements in the Occupied Territory, while others (together with
documents, decisions and processes endorsed by them) constitute the universally
recognized international legal framework of the Middle East Peace Process. This
framework was summarized in paragraph 9 of Resolution 2334 as follows:
"[The Security Council] Urges in this regard the intensification and
acceleration of international and regional diplomatic efforts and support
aimed at achieving, without delay a comprehensive, just and lasting peace in
the Middle East on the basis of the relevant United Nations resolutions, the
Madrid terms of reference, including the principle of land for peace, the
Arab Peace Initiative and the Quartet Roadmap and an end to the Israeli
occupation that began in 1967; and underscores in this regard the
importance of the ongoing efforts to advance the Arab Peace Initiative, the
initiative of France for the convening of an international peace conference,
the recent efforts of the Quartet, as well as the efforts of Egypt and the
Russian Federation".
Any advisory opinion that the Court will deliver will have to be in line with this
framework and contribute to its implementation.
15
V. Role of the Court as a Principal Organ of the United Nations
44. In previous advisory opinions given to the General Assembly, the Court
has emphasized that its answer to a request for an advisory opinion "represents its
participation in the activities of the Organization" .13 The effect that the Court has
given to this crucial finding is that an advisory opinion "in principle, should not be
refused" .14 On the other hand, "the discretion whether or not to respond to a
request for an advisory opinion exists in order to protect the integrity of the Court's
judicial function as the principal judicial organ of the United Nations". 15
45. In other words, both giving an advisory opinion and refusing to give one
are manifestations of the role of the Court in the United Nations system, and
rightly so.
46. The Russian Federation believes, however, that the Court's status as one
of the Principal Organs of the United Nations imposes on the Court responsibilities
of a wider and more nuanced nature.
4 7. There have been a number of attempts to persuade the Court to decline to
give an opinion citing an alleged lack of understanding of whether, and how, the
opinion would assist the General Assembly in the performance of its functions.
The Court has invariably rejected those attempts; it has always affirmed that "it is
not for the Court itself to determine the usefulness of its response to the requesting
organ"16 and that "the General Assembly has the right to decide for itself on the
usefulness of an opinion in light of its own needs" .17 In The Wall, the Court further
established that "the Court's task would be to determine in a comprehensive
manner the legal consequences of the construction of the wall, while the General
13 Chagos, para. 65
14 Ibid.
15 Chagos, para. 64.
16 Chagos, para. 77.
17 Nuclear Weapons, para. 16.
16
Assembly - and the Security Council - may then draw conclusions from the
Court's findings". 18
48. Thus, the Court does not question the usefulness of its opinion for the
General Assembly, leaving it to the Assembly alone to decide on the matter.
However, the Court does not do so blindly.
49. On a number of occasions, the Court has specifically explained that the
questions asked of it are indeed relevant for the Assembly's activities. Thus, in the
Western Sahara Advisory Opinion the Court spoke of the "legitimate interest of
the General Assembly in obtaining an opinion from the Court in respect of its own
future action", namely "for the proper exercise of its functions concerning the
decolonization of the territory" .19 In Nuclear Weapons, the Court was "aware that
... its conclusions ... would have relevance for the continuing debate on the matter
in the General Assembly". 20 In Kosovo, the Court noted that "the General
Assembly ha[ d] taken action with regard to the situation in Kosovo" and therefore
"ha[d] a legitimate interest in the answer to a question".21 In Chagos, the Court
said that "the purpose of the request [was] for the General Assembly to receive the
Court's assistance so that it [might] be guided in the discharge of its functions
relating to the decolonization of Mauritius", as "the General Assembly [had] a long
and consistent record in seeking to bring colonialism to an end".22 Crucially, in The
Wall, the Court agreed with the General Assembly's own description of its
"permanent responsibility towards the question of Palestine until the question is
resolved in all its aspects in a satisfactory manner in accordance with international
legitimacy" and stressed that "the construction of the wall must be deemed to be
directly of concern to the United Nations.23
18 The Wall, para. 62.
19 Western Sahara, Advisory Opinion, paras. 39-41.
20 Nuclear Weapons, para. I 7.
21 Kosovo, paras. 45-47.
22 Chagos, paras. 86-87.
23 The Wall, para. 49.
17
50. In brief, the Court pays attention to the motives of the General Assembly
and its own role as a Principal Organ of the United Nations, and is committed to
contributing to the work of the Organization.
51. This stance of the Court must be reflected not only when deciding
whether to give an opinion, but also when giving an opinion. Otherwise, the
Court's own reasoning on "participation in the activities of the Organization" and
its readiness to follow the General Assembly's determination of its own needs
would lose much of its meaning. The Court should not only give an opinion
because it presumes it to be useful for the General Assembly, but also should give
an opinion that would indeed be useful for it.
52. The reason why the Russian Federation is discussing this aspect in such
detail lies in the special nature and the wide scope of United Nations activities with
regard to Israel and Palestine. Ever since General Assembly Resolution 181, the
United Nations has spared no effort to ensure the realisation of the right of the
Israeli and the Palestinian peoples to self-determination and to achieve a lasting
two-State solution with an independent, viable and contiguous Palestinian State
peacefully co-existing with Israel. It is within the United Nations, or at least under
its auspices, that the universally recognized legal basis for a Palestinian-Israeli
settlement has been established. It includes Security Council Resolutions 242, 338,
1397, 1515, 1850, and has been most recently spelled out in Resolution 2334.
53. Resolution 2334 reaffirms the aim of the international community to
"achiev[ e ], without delay, a comprehensive, just and lasting peace in the Middle
East on the basis of the relevant United Nations resolutions, the Madrid terms of
reference, including the principle of land for peace, the Arab Peace Initiative and
the Quartet Roadmap and an end to the Israeli occupation that began in 1967".24
24 S/RES/2334 (2016), para. 9.
18
54. In Resolution 77/247, the General Assembly "call[ed] for the full respect
of all relevant General Assembly and Security Council resolutions in this regard,
including Security Council Resolution 2334".25
55. The principles set in the Security Council Resolution 2334, and indeed in
the earlier Security Council and General Assembly resolutions with regard to Israel
and Palestine, thus form the universal vision of the Middle East Peace Process.
They are to be shared by all organs of the United Nations, which should contribute,
within their respective mandates, to their implementation.
56. For these reasons, the Russian Federation submits that the Court, while
giving an advisory opinion in the present case, should be guided by the abovementioned
principles and should seek to give an opinion that would contribute to
their implementation.
VI. The advisory opinion and final status negotiations
5 7. A crucial element of the principles of the Middle East Peace Process is
the idea of a lasting settlement to be achieved through negotiations between the
parties. Thus, the preamble to the Quartet Roadmap ( endorsed by Security Council
Resolution 1515) speaks of a "settlement, negotiated between the parties". In
Resolution 1850, the Security Council declared "its commitment to the
irreversibility of the bilateral negotiations" and, among other things, "call[ ed] on
all States and international organizations to contribute to an atmosphere conducive
to negotiations".26 In Resolution 2334, the Security Council stressed an urgent
need for significant steps "to create the conditions for successful final status
negotiations and for advancing the two State solution through those negotiations
and on the ground" and "call[ ed] upon all parties to continue, in the interest of the
25 A/JIBS/77 /24 7, para. 6
26 S/RES/1850 (2004), paras. 1 and 4.
19
promotion of peace and security, to exert collective efforts to launch credible
negotiations on all final status issues".27
58. Whether the Court should be counted among the "international
organizations" and "all parties" mentioned in the Security Council Resolutions is
rather an academic question that does not necessarily require a legal answer. What
is clear, however, is that the Court, being a Principal Organ of the United Nations
whose advisory opinion "represents its participation in the activities of the
Organization", should at the very least take account of the above-mentioned
decisions of the Security Council and the corresponding vision of the General
Assembly.
59. It follows that the Court, whatever advisory opinion it might give, should
strive to ensure that the opinion contributes to the task of creating conditions for
successful final status negotiations, or, at a minimum, that the opinion does not
create new obstacles to those negotiations.
60. In previous advisory proceedings, the Court was sometimes invited to
use its discretion and to refuse to give an advisory opinion because it might impede
the prospects of negotiations. This was notably the case in Nuclear Weapons and
The Wall. In both of these cases, the Court acknowledged the existence of
negotiations and their value for the international community, but did not go much
further in establishing whether, and how, that universal interest in the success of
negotiations affects the Court when it is giving an advisory opinion.
61. Thus, in the Nuclear Weapons Advisory Opinion, one may read:
"The Court is aware that, no matter what might be its conclusions in
any opinion it might give, they would have relevance for the continuing
debate on the matter in the General Assembly and would present an
additional element in the negotiations on the matter. Beyond that, the effect
of the opinion is a matter of appreciation. The Court has heard contrary
27 S/RES/2334 (2016), final preambular paragraph and para. 8.
20
positions advanced and there are no evident criteria by which it can prefer
one assessment to another". 28
In The Wall, the Court addressed the same argument in somewhat greater detail. It
was "conscious that the "Roadmap", which was endorsed by the Security Council
in resolution 1515 (2003) . .. constitute[ d] a negotiating framework for the
resolution of the Israeli-Palestinian conflict". It was also "aware that the question
of the wall [was] part of a greater whole, and it would take this circumstance
carefully into account in any opinion it might give".29
62. It has, however, remained unclear how exactly the Court took this
circumstance into account in the Advisory Opinion given. Moreover, for the Court,
"[it was] not clear ... what influence the Court's opinion might have on those
negotiations: participants in the present proceedings ha[ d] expressed differing
views in this regard".30 This, with all due respect, cannot be regarded satisfactory.
63. There is every reason to expect that participants to the current
proceedings will also express differing views on the potential influence of the
Court's opinion on the negotiations. Some participants will likely argue that a legal
pronouncement by the Court on the unlawfulness of the various Israeli practices, or
indeed the occupation itself, will give a fresh impetus to the negotiations. The
parties will have a stronger legal framework within which to search for a solution,
whereas continued reluctance (if any) to reach agreement will now defy not only
the Security Council and the General Assembly, but also the Court. Others will
note that the Court's findings on the unlawfulness of certain practices may limit
(legally or politically) the freedom of the parties to search for solutions on their
way to a final settlement. Yet others may point to the fact that, as practice shows,
parties to a conflict are sometimes less willing to negotiate if concessions are
required of them as a matter of law rather than as matter of free will.
28 Nuclear Weapons, para. 17.
29 The Wall, paras. 53-54.
30 The Wall, para. 53.
21
64. In Russia's view, the Court should carefully take those views into
account rather than dismiss them - the impression that the above-quoted passage
from The Wall unfortunately creates.
65. Furthermore, in light of the mentioned Security Council resolutions, the
Russian Federation invites the Court to be actively seeking to contribute to creating
conditions for successful final status negotiations. This way, the Court would
indeed live up to its responsibilities not only as the most authoritative judicial body
of the international community, but also as a Principal Organ of the United
Nations.
VII. Qualification of Israel's conduct with regard to international law
66. The foregoing should not be interpreted in any way as an attempt by the
Russian Federation to question Israel's responsibility for breaches of international
law. Considerations of judicial propriety in particular proceedings must be
distinguished from the position on substance. Russia's position on Israeli laws and
practices with regard to Palestine is crystal clear and well known.
67. In particular, Israel has been persistently denying the Palestinian people
its right to self-determination.
68. The right of Palestinians to self-determination through the establishment
of their own State has been at the heart of efforts of the international community.
That right has been recognized by the General Assembly, the Security Council and
the Court.31 Importantly, the international community is virtually unanimous in
insisting that that right is to be exercised through independence. No issue of
"internal" self-determination may arise in the case of Palestine, as the country has
never been a legal part of Israel and is not seeking to secede from it. Rather, it is
seeking to obtain the status to which it has been duly entitled since the
31 The Wall, para. 118.
22
discontinuation of the Mandate and the adoption of United Nations decisions on
the creation of two States, one Arab and one Jewish.
69. "An end to the Israeli occupation" has been identified as a goal of the
international community by legally binding resolutions of the Security Council,
including Resolution 2334.
70. Israel is accordingly under an obligation to cease its violations of
international law and to allow the Palestinian people to establish an independent
State.
71. Another qualification of Israel's conduct with regard to international law
concerns the establishment and the expansion of settlements in the Occupied
Territory.
72. The fact that those settlements have been established in breach of
international law has been directly confirmed by the Court in The Wall. 32 As
explained in that Advisory Opinion, the settlements are contrary to the principle of
inadmissibility of acquisition of territory by force; to the provisions of the Fourth
Geneva Convention prohibiting deportation of population from an occupied
territory as well as transfer thereto of population of the occupying power; to the
resolutions of the Security Council that have characterized that policy as changing
the legal status and geographical nature and materially affecting the demographic
composition of the Arab territories occupied since 1967, including Jerusalem. That
policy is aggravated by numerous accompanying violations of other rules of
international humanitarian law and international human rights law, such as the
right to life, to respect for private and family life, to property, to freedom of
movement, to freedom of religion, to work, to health, to education, to an adequate
standard of living.
73. In the years that have passed since The Wall, nothing has changed these
legal qualifications. On the contrary, the policy of settlements has continued, with
32 The Wall, para. 120.
23
the number, the area and the population figures of those settlements constantly
growing. This is happening in defiance of Security Council resolutions and the
Quartet Roadmap under which Israel was at least to freeze all settlement activity.
Importantly, as stressed in Resolution 2334, the settlements not only violate
international humanitarian law and human rights of Palestinians, but also are "a
major obstacle to the achievement of the two State solution and a just, lasting and
comprehensive peace", "dangerously imperilling the viability of the two State
solution based on the 1967 lines". They are thus also violating the right of the
Palestinian people to self-determination.
74. Israeli policies in Palestine, to Russia's deep regret, include other
international law violations. Several examples have ·been provided in the
Introduction. Many others will, no doubt, be presented to the Court by other
participants to these proceedings. The Russian Federation expects that the Court
will give them due consideration without prejudice to the nature of an advisory
opm10n.
VIII. Legal consequences of violations
75. The starting point for the consideration of legal consequences of
violations of international law by Israel is the well-established rule whereby "every
internationally wrongful act of a State entails the international responsibility of that
State".33 On the basis of customary international law of State responsibility and the
Advisory Opinion on The Wall, in the present proceedings the Court will be right
to conclude that Israel's violations result in Israel's duty to comply with the
obligations it has breached, to put an end to its ongoing violations and to provide
reparation for the damage caused.
76. This means, first and foremost, that Israel is under an international legal
obligation to respect the right of the Palestinian people to self-determination and to
33 International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, Article 1.
24
stop all settlement activity in the Occupied Territory. Israel is also under obligation
to cease all other violations of international law with regard to Palestinian people.
77. Given the particular legal framework of the Middle East Peace Process,
Israel is also under an obligation to cease all activities that impede reaching a final
status agreement based on the right of the Palestinian people to self-determination
in an independent, viable and contiguous Palestinian State with East Jerusalem as
its capital.
78. In line with the reasoning in The Wall, the Court will also be right to
conclude that all States and international organizations are under an obligation not
to recognize the illegal situation resulting from Israeli violations, not to render aid
or assistance in maintaining that situation, and to see to it that any impediment to
the exercise by the Palestinian people of its right to self-determination is brought to
an end.
79. Having said that, the Court will be wise not to engage into a detailed
discussion on a precise scope and forms of implementation of Israel's
responsibility. This is important for two reasons.
80. First, advisory proceedings before the Court are not an exercise m
implementation of responsibility. No State is invoking Israel's responsibility in
these proceedings, as indeed Israel is precluded from invoking responsibility of
others.
81. Secondly, the international community has established a solid framework
for the Middle East Peace Process, in which bringing an end to Israeli violations,
creating guarantees of their non-repetition as well as issues of reparations are an
unalienable element. The Process, of course, is not legally framed as a
responsibility exercise, but its aims necessarily include aims of such an exercise.
The advantage of the Peace Process is the idea of direct negotiations between Israel
and Palestine that are to reach an agreement on the basis of their free will,
something that, in Russia's opinion, significantly strengthens the chances that an
25
agreement will actually be achieved, will indeed satisfy the interests of both
parties, and will be implemented in practice.
82. It follows from these considerations, as well as from the legally binding
nature of the principles of the Peace Process, that the Court, through its advisory
opinion, is not to create ground for a parallel process of bringing Israel to legal
responsibility for its violations, but should be guided by the need to contribute to
creating conditions for successful final status negotiations. The best contribution
would be a confirmation by the Court that Israel and Palestine are under an
obligation to resume such negotiations, while all States and international
organizations are under an obligation to cooperate in order to make those
negotiations possible and successful.
IX. Conclusion
On the basis of the foregoing, the Russian Federation respectfully submits:
1) The Court has jurisdiction to give the advisory opinion requested by the
General Assembly.
2) There are no compelling reasons for the Court to exercise its discretion
not to accede to the request to give an advisory opinion.
3) The Court has to bear in mind that it is entertaining a request for a legal
assessment of behaviour of a State without that State's consent. It is therefore
important to create fair procedural conditions and to ensure that the advisory
opinion corresponds to the advisory nature of the proceedings.
4) In determining the legal consequences of certain Israeli laws and
practices, the Court may wish to re-interpret the questions formulated by the
General Assembly. The Court is not bound by legal opinions of the General
Assembly and has to independently establish whether the respective Israeli laws
and practices are or are not against international law.
26
5) When dealing with facts, the Court is not to be limited to those facts (and
their interpretation) that are included in the reports by the United Nations
Secretary-General and other United Nations bodies, but should allow all interested
parties to present facts in support of their views.
6) International law applicable for the purposes of the advisory opm10n
includes the sources of law mentioned in paragraph 18 of Resolution 77 /24 7, it
being understood that (i) General Assembly and Human Rights Council resolutions
are not per se sources of international law, and (ii) Security Council resolutions
should be read to include the universally recognized legal framework of the Middle
East Peace Process endorsed by those resolutions.
7) When giving an advisory opinion, the Court should be guided by its role
as a Principal Organ of the United Nations. Notably, the Court should ensure that
its advisory opinion contributes to creating conditions for successful final status
negotiations.
8) The continued Israeli occupation of Palestine impedes the realisation by
the Palestinian people of its right to self-determination through the establishment
of an independent, viable and contiguous State.
9) Position of the Court on the unlawfulness of the Israeli settlements in
Palestine has been directly confirmed in the Advisory Opinion of the Court on the
Wall. As explained by the Court, settlements are contrary to the principle of
inadmissibility of acquisition of territory by force; to the provisions of the Fourth
Geneva Convention prohibiting deportation of population from an occupied
territory as well as transfer thereto of population of the occupying power; to the
resolutions of the Security Council that have characterized that policy as changing
the legal status and geographical nature and materially affecting the demographic
composition of the Arab territories occupied since 1967, including Jerusalem.
27
10) The policy of establishing Israeli settlements in Palestine is aggravated
by numerous accompanying violations of other rules of international humanitarian
law and international human rights law, such as the right to life, to respect for
private and family life, to property, to freedom of movement, to freedom of
religion, to work, to health, to education, to an adequate standard of living.
11) Israel is under obligation to terminate its breaches of international law. It
must in particular cease all settlement activity and all other activities that impede
reaching a final status agreement based on the right of the Palestinian people to
self-determination in an independent, viable and contiguous Palestinian State with
East Jerusalem as its capital.
12) Establishing a precise scope and forms of Israel's responsibility for its
breaches may run counter to the advisory nature of the proceedings and to the need
to create conditions for successful final status negotiations.
13) Israel and Palestine are under an obligation to conduct, in good faith and
without delay, negotiations aimed at reaching a final status settlement that will
result in the implementation by the Palestinian people of its right to selfdetermination,
emergence of an independent, viable and contiguous Palestinian
State, and thus bring to an end most of the ongoing violations of human rights of
Palestinians.
14) All States are under obligation not to recognize the illegal situation
resulting from Israel's laws and practices in violation of the right of the Palestinian
people to self-determination and human rights of Palestinians.
15) All States and international organizations are under obligation to
cooperate so as to contribute to creating conditions for successful final status
negotiations on the basis of relevant United Nations resolutions, the Madrid terms
of reference, including the principle of land for peace, the Arab Peace Initiative
and the Quartet Roadmap, and an end to the Israeli occupation.
Ale antler V.SHULGIN
Ambassador of the Russian Federation
To the Kingdom of the Netherlands
28