For years, Palestinian and non-Palestinian advocates and legal experts have argued that Israel’s occupation of the Palestinian Territories (OPT), which includes the Gaza Strip, the West Bank, and East Jerusalem, is illegal. On 19 July 2024, the International Court of Justice (ICJ) issued an Advisory Opinion (AdvOp) effectively concurring in that assessment and calling upon the UN and third States to address and rectify Israel’s illegal activities in the OPT, including its unlawful presence in the territory. On 13 September 2024, the UN General Assembly (GA) passed a Resolution (124 in favor, 14 against, and 43 abstentions) demanding that Israel comply with the advisory opinion and, among other things, that it “end without delay its unlawful presence” in the OPT within 12 months of the resolution’s adoption. Israel voted against the resolution, has described it as “diplomatic terrorism,” and is highly unlikely to comply with it or the AdvOp itself.
The GA has other tools for discharging its obligations under the AdvOp, including unseating the Israeli government from the GA through the Assembly’s authority to review the credentials of State delegations. A similar measure was taken against apartheid South Africa in 1974 and lasted until the end of apartheid in 1994. This post canvases some of the most salient arguments raised against that and other efforts to use the credentialing process to substantively evaluate whether a State delegation should be seated or unseated in the GA—arguments that will certainly be leveled against any effort to unseat Israel’s government. In addressing those concerns, this post also demonstrates how the AdvOp provides a particularly strong legal basis—grounded primarily in the right to self-determination—to unseat Israel’s government from the General Assembly until it complies with the ICJ’s advisory opinion.
Unseating Government from the UN General Assembly Through the Credentialing Process
Under its Rules and Procedures, the GA is empowered to inspect the credentials of its State delegations. Pursuant to Rule 28, the Assembly’s Credentials Committee, which consists of nine Member States, “shall examine the credentials of representatives and report without delay.” Once it has decided whether to approve a delegation’s credentials, the committee passes its recommendation onto the GA for a vote. Under Rule 29, members of the GA can also directly challenge the credentials of a delegation, a move that then obliges the Credentials Committee to issue a report on the matter to the GA. Once that report is issued, the GA formally votes on whether to seat the delegation, taking the report into consideration.1)
Since the UN’s earliest days, the GA has used the credentialing process to decide which of two or more rival governments should be treated as a State’s legitimate representative in the Assembly.2) In the case of South Africa, the GA used its credentialing power, for the first and so far last time, to conclude that a single government that had no rival should be unseated from the Assembly because it lacked legitimacy. In the case of South Africa, that illegitimacy was based on its apartheid system and failure to represent its indigenous Black population.
Whether used to decide between competing governments or to evaluate one government, use of the credentialing process to evaluate a government’s “legitimacy” and “representativeness” has long been controversial. This has been particularly true where the process has unseated a single, unrivaled government, as in the case of South Africa. While various arguments have been raised against using the credentialing process to evaluate a government’s legitimacy and representativeness—in the case of South Africa and more broadly—two arguments are particularly salient and likely to be raised against efforts to unseat the government of Israel.
The first argument is that unseating a government through the credentialing system—which is supposed to be a purely procedural process—effectively suspends or expels the State from the UN where there is no rival government to take its place. Such a move purportedly violates Articles 5 and 6 of the UN Charter, which allow for States to be suspended from participating in or expelled from the UN only through joint action by the Security Council and the GA. Under Article 5, “[a] Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the GA upon the recommendation of the Security Council.” Article 6 reflects a similar two-step process, allowing the GA to vote in favor of “expelling” a Member State from the UN “upon recommendation” by the Security Council where the Member State has persistently violated the Charter’s principles.
While Israel’s systematic and persistent non-compliance with Security Council and GA resolutions, as well as long-standing evisceration of core Charter principles—as reflected in the ICJ AdvOp itself—arguably qualify it for suspension or expulsion under Articles 5 and 6, the United States (and perhaps even the UK) would certainly exercise its Security Council veto to prevent either result from occurring. As a result, attempting to unseat the Israeli government through the credentialing process, where there is no rival government to take its place, would undoubtedly raise well-rehearsed Article 5 and 6 concerns.
The second argument against using the credentialing process is that, without any meaningful guidelines, evaluating the legitimacy and representativeness of a government amounts to little more than a political exercise.3) Though there are a hodge podge of opinions from UN officials, as well as a GA Resolution from 1950, that propose guidelines for evaluating a government’s legitimacy and representativeness,4) the credentialing process remains haphazard and inconsistent. This has made it possible for powerful states, like the United States, to use their authority to exclude from the GA governments they do not favor.5) While Israel need not worry about losing the political support of the global hegemon, the absence of strong legal guidelines for unseating a government will help ensure Israel cries wolf and blames political—and even antisemitic—bias for any such effort against it, as it typically does in response to unfavorable UN action.
The AdvOp helps to ameliorate these concerns about conflicts with Articles 5 and 6 of the Charter, as well as the politicization of the credentialing process in the case of Israel. Before addressing those issues, however, the next section describes the framework provided by the AdvOp for evaluating the legitimacy and representativeness of Israel’s government. That framework is based on violations of two inter-related international legal norms—the right of self-determination and the prohibition on acquiring territory by force—and provides a strong conceptual connection between the unseating of Israel’s government today and the unseating of the South African government some fifty years ago.
The Gist of the ICJ’s Advisory Opinion
In the AdvOp, the ICJ held by 11 to 4 votes that Israel’s presence in the entirety of the OPT is unlawful because it violates the prohibition on acquiring territory by force and the right to self-determination of the Palestinian people (para. 259-62). As articulated by the Court, there is a close link between the right to self-determination and the prohibition on the acquisition of territory both generally and in the case of Israel’s occupation of the OPT (points variously made by some scholars as well). As the Court observed, “territorial integrity is recognized under customary international law as a ‘corollary of the right to self-determination.’” (para. 237). Applying that rule to Israel’s occupation, the Court concluded that “Israel’s annexation of large parts of the Occupied Palestinian Territory [which violates the prohibition on the acquisition of territory by force] violates the integrity of the [OPT], as an essential element of the Palestinian people’s right to self-determination.” (para. 238).
The AdvOp—specifically its holding on the self-determination right—provides a strong conceptual basis for unseating Israel’s government based on its illegitimacy and lack of representativeness. It does so in two ways. First, the Opinion demonstrates that, in denying the Palestinian people’s right to self-determination, including through violating the prohibition against the acquisition of territory by force, Israel has prevented the Palestinians from achieving their own independent sovereign State and deprived them of a representative government of their own. Second, the Opinion suggests that, by claiming large swathes of the OPT for itself and engaging in systematic racial discrimination against the Palestinian people living in the OPT (para. 223-229), the Israeli government has both violated the Palestinian people’s right to their own sovereign State and failed to provide them with any representation within the Israeli domestic system, where they have no electoral rights and, indeed, few rights of any kind. While allowing the Palestinian people to vote for or otherwise be represented within the Israeli government would not render Israel’s presence in the OPT lawful, it provides an additional basis for concluding that the Israeli government lacks legitimacy and representativeness because it exercises substantial control over a people without allowing them the right to “freely determine their political status and freely pursue their economic, social and cultural development.” (para. 233).
This link—between representativeness and self-determination—was also made in relation to the unseating of South Africa’s apartheid government. While that decision provides an important precedent, one could argue that representativeness functions differently in the situation of Israel and the OPT than in South Africa, where the indigenous Black population was ostensibly present within South Africa itself. In fact, however, one way the apartheid government denied the Black population its right to self-determination was by conceptually and materially placing it “outside” the territorial South African State. Indeed, the apartheid government created “Bantu Homelands,” so-called independent territories with their own governments, in order to segregate the Black population and remove it from White South African society. This technique parallels similar tactics undertaken by the Israeli government in the OPT, where it has created “bantustans” for Palestinians that segregate them both from one another and from the Israeli settlers living illegally in their homeland, as rightly pointed out in the AdvOp (para. 227).
Even if one rejects this perspective on the similarities between the Israeli and South African cases, unseating the Israeli government arguably stands on even firmer legal ground than unseating South Africa’s government did. This is largely thanks to the AdvOp’s important holding on the nature of the self-determination right and the obligations arising from it. That holding also helps address concerns about the so-called politicization of the credentialing process and potential conflicts between that process and Articles 5 and 6 of the Charter. These issues are discussed in the next section.
Self-Determination and Unseating the Israeli Government
Even though the prohibition on apartheid had arguably obtained jus cogens status at the time of the GA’s decision to unseat the government of South Africa, commentators also framed the government’s removal as grounded in the right to self-determination, which was denied to South Africa’s Black population by the very nature of apartheid.6) While apartheid undoubtedly was and remains an affront to the purposes of the UN—and while it is also implicated in the ICJ’s recent advisory opinion (para. 223-229; see Victor Kattan’s contribution in this symposium) —the right of self-determination has a particular centrality to the UN system that makes its violation especially relevant to determining whether a State delegation is legitimate and representative.
Indeed, the UN Charter emphasizes the importance of the right to self-determination by describing, as one of the UN’s purposes, the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Self-determination is also considered the foundational right upon which other human rights important to the mission of the UN depend.
The AdvOp adds to self-determination’s existing importance at the UN by clearly establishing the right’s peremptory status and binding nature on all States, as well as on the UN itself. By and large, the right to self-determination is understood to have attained jus cogens status during the early post-World War II period, particularly during the mass global decolonization movements of the 1950s, 60s, and 70s. Through multiple resolutions passed in the 1960s and 70s, the GA played a particularly crucial role in elevating self-determination to the status of a peremptory norm, which applies to all peoples and places and is fundamentally incompatible with situations of colonization and foreign occupation.
All that being said, until the July 2024 AdvOp, the ICJ had never explicitly held that the right to self-determination enjoys jus cogens status. Now, it has done so affirming that, “in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law.” (para. 233). The AdvOp also reiterates previous ICJ decisions concluding that the right to self-determination is erga omnes, meaning it is a right that States owe to all other states (para. 232). While jus cogens rights are, in effect, rights erga omnes, the opposite is not necessarily true. In sum, the ICJ’s unambiguous holding on the right to self-determination makes clear that all States, as well as the UN, have a duty to protect and ensure that the right is realized in the particular situation facing the Palestinians of the OPT.
These holdings are meaningful ones. While ICJ advisory opinions are technically “non-binding,” they nevertheless “entail[] an authoritative statement of international law on the question[] with which [they] deal[]” and “carry no less weight and authority than those in judgments because they are made with the same rigour and scrutiny by the ‘principal judicial organ’ of the United Nations with competence in matters of international law.”7) Mechanisms like the credentialing process are one way for third States and the UN to effectuate those responsibilities that have been “authoritatively” articulated by AdvOp.
By providing a legal framework for evaluating the legitimacy and representativeness of a State’s government, grounded in the jus cogens right of self-determination, the ICJ opinion also overcomes claims about the “politicization” of inquiries into the legitimacy and representativeness of State delegations to the GA. Since the Israeli government has clearly and credibly violated the Palestinian people’s right to self-determination—a jus cogens right that is central both to the issue of representativeness and the UN system itself—there is a convincing legal reason for denying it a seat at the GA through the credentialing process.
Further, the AdvOp provides an even stronger basis for rejecting claims about so-called conflicts between the credentialing process and Articles 5 and 6 of the Charter. As others have argued, these two processes do not conflict with one another, on their face. This is due to the distinction between suspending a State, as an enforcement measure or for failure to adhere to the principles of the Charter, and refusing to seat its government, because it is illegitimate and unrepresentative. A GA decision to prevent a State’s government from participating in the Assembly does not violate Articles 5 and 6 because it does not suspend or remove the state itself from the UN or represent an enforcement action or punishment for violating Charter principles.7) Instead, it is fundamentally concerned with the issue of representation – namely with whether the government actually represents the people over which it has control.
The AdvOp provides another basis for rejecting arguments about Article 5 and 6’s primacy. Specifically, the Opinion demands that the UN Charter be interpreted and implemented in ways that conform with the Palestinian people’s right to self-determination, since, as the Court has held, that is a right both jus cogens and erga omnes. This means that Articles 5 and 6—which are treaty rules subsidiary to jus cogens norms—should be interpreted and implemented in the service of the right to self-determination, rather than in the course of its subordination. It also suggests that Articles 5 and 6 should not stand in the way of realizing the right to self-determination through other established processes and procedures in the UN. Even if there is a conflict between the right to self-determination and the language or implementation of a non-jus cogens Charter rule—like Articles 5 and 6—the UN must adhere to the right of self-determination over and above the conflicting Charter rule.
Conclusion
In the wake of Russia’s invasion of Ukraine, there has been much discussion—often creative—among legal scholars about removing Russia from the Security Council as well as the GA. While politicians and others have also called for Israel to be ejected from the UN over the last year, and even though there have been multiple efforts in past decades to unseat Israel’s government from the GA through the credentialing process, there has been noticeably little public debate and discussion of this issue amongst legal advocates and academics recently. That inconsistency is one of many that have been on display within scholarly circles since Israel’s genocide against the Palestinians began last fall—at least in Western countries.
Despite this scholarly reticence, the ICJ AdvOp—as well as past Security Council and GA resolutions recognizing the Palestinian people’s right to self-determination, as well as the illegality of Israel’s annexation of parts of the OPT, and calling for an end to Israel’s occupation of the OPT—provides a clear legal imperative for the GA to use its credentialing process to unseat the Israeli government for lack of legitimacy and representativeness directly connected to its occupation of the OPT and denial of the Palestinian people’s right of self-determination. As the Security Council continues to shirk its duties, the GA can and should assert itself by using its credentialing process to uphold its legal obligations and ensure that Israel’s pathological denial of the Palestinian people’s right to determine their own political, social, and economic future is finally and “rapidly” brought to an end.
Many thanks to Ardi Imseis and Nimer Sultany for helpful comments and suggestions. All errors are my own
