Canada’s confused policies on Israeli-palestinian relations
On Feb. 19, 2024, the International Court of Justice (ICJ) convened in The Hague to hold public hearings on a request by the UN General Assembly for an advisory opinion on the question of the “legal consequences arising from the policies and practices of Israel in the occupied Palestinian Territory, including East Jerusalem.”
The request arose from a resolution of the General Assembly passed in 2022.
Canada has stated publicly that it “supports the ICJ’S critical role in the peaceful settlement of disputes and its work in upholding the international rules-based order.”
Nevertheless, in the hearing before the ICJ, Canada — by way of a written statement — urged the ICJ to decline the request of the General Assembly and not provide any opinion on the question referred to it. In fact, in the General Assembly, Canada had voted against the referral of the question to the ICJ.
CANADA’S POSITION
This surprising position of Canada was based on two grounds. First, that the consent of Israel was required for the ICJ to proceed with the case.
There is no merit in this argument. To require the consent of Israel would, in effect, give Israel a veto over ICJ proceedings and prevent the court, as the principal judicial organ of the UN, from performing its core functions relating to the application of international law to such disputes as exist between Palestine and Israel.
In its own jurisprudence, the court has held that the consent of an interested state may be relevant, not for the court’s competence (i.e. jurisdiction), but for the appreciation of the propriety of giving an opinion. The court will require compelling reasons why its opinion should not be given.
LONGTIME ISSUE
The occupation by Israel of Palestinian territory since the 1967 war has arguably been the most intractable problem faced by the UN since the court was established in 1945.
When the General Assembly passed the 2022 resolution for the referral to the ICJ, the situation in occupied Palestinian territory was already compelling. Since Oct. 7, 2023, the circumstances are even more compelling. Why Canada would see no useful role for the court in the current case is puzzling.
It is clear, too, that Israel would not give its consent to any process which might find it to have breached international law.
In 2004, the ICJ issued an opinion holding that Israel’s barrier wall constructed in the occupied West Bank was illegal under international law and should be dismantled.
Israel rejected the ruling and has since extended the wall.
‘DIRECT DIALOGUE’
The second reason given for Canada’s position was that “Canada believes direct dialogue between the parties themselves is the best path to create conditions for peace ... and that an advisory opinion on Israeli practices in the occupied territories may contribute to a polarization of positions that risks moving the parties further away from a just and lasting resolution of the conflict.”
This second reason is a reiteration of Canada’s position that any resolution of the relevant disputes must be resolved through negotiation toward a two-state solution.
Several points need to be made here. First, there have been no serious attempts at a two-state solution since the second term of the Obama administration, when John Kerry was the U.S. secretary of state.
Kerry spent a good deal of time and effort on the twostate solution in 2013-2014. He dealt with Benjamin Netanyahu as prime minister of Israel and with Mahmoud Abbas as president of the Palestinian Authority. It all came to naught.
Second, the Israeli government has made it abundantly clear that no negotiations will take place with the Palestinians toward a separate state for Palestine.
Netanyahu has stated that Israel must have control of all territory from the Jordan River to the Mediterranean Sea. This is incompatible with Palestinian statehood as Israel would claim the right to cross Palestinian borders whenever it wished. The president of Israel (Isaac Herzog) has also ruled out a Palestinian state, saying it would only provide a “launching pad” for attacks on Israel.
Third, Canada’s position before the ICJ that an opinion from the court might jeopardize negotiations between the parties is divorced from reality. There are no negotiations, none have been had for the past 10 years and, if the Israelis are to be taken at their word, none will be had for a very long time, if ever.
Canada’s position does no more than maintain the status quo which has led to death, injury, famine and destruction.
In the meantime, Israel continues to construct settlements on land which, under international law, would form part of a Palestinian state.
ISRAELI SETTLEMENTS
While the case now before the ICJ concerns the policies and practices of Israel in the occupied Palestinian territories, nowhere in the statement made to the ICJ by Canada is there any reference to Israeli settlements in the occupied territories.
The history of Israeli settlements in the occupied territories is instructive. In 1993, there were about 110,000 Jewish settlers in the West Bank. By the time John Kerry became U.S. secretary of state in 2013, the number had grown to about 375,000.
By January 2023, there were 144 Israeli settlements in the West Bank and 12 in East Jerusalem. In all, there were 700,000 settlers in Palestinian territories occupied by Israel since the 1967 war. These are areas that would be occupied by Palestinians in a Palestinian state.
The expansion of settlements in occupied territories continues apace, putting the hope for a Palestinian state ever further away.
The idea behind the twostate solution was land for peace. The Israeli settlements are clearly intended to be permanent and constitute a gradual and cumulative annexation of Palestinian land. The number and location of these settlements militate against the creation of a viable Palestinian state.
CANADA’S VOTING RECORD
While promoting a two-state solution, Canada has ignored the rapid spread of Israeli settlements in the occupied territories. As recently as Dec. 7, 2023, Canada voted against a resolution before a plenary session of the UN that sought to reaffirm that Israeli settlements in occupied Palestinian territory were illegal and an obstacle to peace and economic and social development.
The same resolution called for the immediate and complete cessation of all Israeli settlement activities in those territories. Canada was one of only six countries that voted against the resolution.
In fact, for at least the past 10 years, Canada’s voting record at the UN has been inconsistent with its stated policies on the Palestinian right to self-determination and Israeli control over occupied Palestinian territory.
Canada’s failure to challenge the proliferation of Israeli settlements in occupied territories is clearly inconsistent with its professed support for the role of the ICJ in the peaceful settlement of disputes and its work in upholding the” international rules-based order.”
Canada’s position, as recently stated before the ICJ, is based on the belief that there can be good-faith discussions between Israel and the Palestinians leading to a two-state solution.
This is not based in reality. By its own words, Israel has made it clear that it has no intention of allowing a Palestinian state side by side with Israel.
Of course, there are also elements on the Palestinian side who have no interest in negotiating with Israel.
LONG HISTORY
In the case before the ICJ on Feb. 19, the court heard from 51 countries, the largest number to be heard in any case since the court was constituted in 1945.
The vast majority of those countries spoke in favour of Palestinian self-determination and the cessation of Israel’s occupation of and control over Palestinian lands.
The history of the conflict between Palestinians and the Jewish population in the region has been long and tortured, going back more than 100 years to the period of the British Mandate following the First World War.
The horrors of Oct. 7, 2023, and the ongoing carnage in Gaza are the latest chapter in this sad history.
Where lies the solution?
SEPARATE PALESTINIAN STATE
The general consensus in the world community is that the solution ties in a separate state for Palestinians. The population of Palestinians in the occupied territories and in Israel is roughly six million, about equal to the Jewish population in Israel and in the occupied territories.
There is a growing consensus that the best hope for a fully functioning Palestinian state lies not in negotiations with Israel but by admission to full membership in the UN.
The Palestinians declared their statehood in 1988 and, in 2012, the state of Palestine was given observer status in the UN.
RECOGNITION
Currently, 139 of the 193 UN member states have extended recognition to the state of Palestine. Among these are Poland, Sweden, Russia, Chile, Egypt, Saudi Arabia, China, India, Malaysia, Hungary, Turkey, Brazil, Iceland and South Africa. Collectively, the recognizing countries represent almost half of the world’s population.
Also, among those countries recognizing the state of Palestine are eight of the 15 members of the UN Security Council, two of which (Russia and China) are permanent Security Council members.
It is noteworthy, too, that nine of the countries that have recognized the state of Palestine are G20 countries and 11 of them are NATO members.
Recent press reports have indicated that France, the U.K. and Spain have all expressed a readiness to recognize the state of Palestine without waiting for any Israeli-palestinian talks on a two-state solution.
Of special significance, it has recently been made known that the U.S. secretary of state has instructed the U.S. State Department to prepare a review of options, including the possible recognition of the state of Palestine.
WHAT HAS TO HAPPEN TO JOIN THE UN?
To be admitted to full membership in the UN, Palestine will need the votes of at least nine of the Security Council’s 15 members, with none of the permanent members using their veto power. This appears to be within reach.
As for the General Assembly, the votes required are already there, as more than two-thirds of the members of the General Assembly have recognized the state of Palestine.
There is work to be done before Palestine can apply to the Security Council for full membership. The Security Council will have to be satisfied that Palestine has a functioning government that is stable and effective and that it has a defined territory. The boundaries of Palestine should not be an issue, as the ICJ has dealt extensively with that issue in the barrier wall case previously mentioned.
As for a stable, functioning government, there will have to be a reformed and revitalized Palestinian Authority. It is understood that work on this is already underway.
There will also have to be an election so all Palestinians in all territories can speak with one voice. There will need to be an executive and a legislative authority supported by a majority of the people.
WON’T SOLVE ALL PROBLEMS
Of course, UN membership for the Palestinian state will not miraculously solve all of the problems between Israel and the Palestinians. There are many thorny issues, not the least of which is the problem of Israeli settlements in the occupied territories.
Also, all of the Israeli military forces in the occupied territories will have to be withdrawn and the status of Jerusalem will have to be resolved. The release of Palestinians held by Israel in “administrative detention” will have to be accomplished.
It is hoped that the opinion of the ICJ in the current case will provide mediators with a rules-based framework consistent with international law. With the support of the world community, the parties may then be able to reach a place where each side has the peace, security and prosperity that every country wishes for its people. They don’t have to like each other, but the killing has to stop.
CANADA NEEDS TO STEP UP
The folks at Global Affairs Canada need to re-focus and put their shoulders to the wheel. We want to be part of the solution, not part of the problem.
A good place to start would be for Canada to join the majority of UN members in recognizing the state of Palestine.
Also, we need to make our practices, particularly those relating to the ICJ and UN resolutions, consistent with our stated principles and policies.