A protester holding a sign calling for the end of the apartheid practices of Israel's government.
A protester holding a sign calling for the end of the apartheid practices of Israel's government. Credit: Alisdare Hickson / Flickr Credit: Alisdare Hickson / Flickr

On August 7, the International Court of Justice (ICJ) announced that it had received 57 written statements from member states regarding the currently underway advisory proceeding on the legal consequences arising from Israel’s policies and practices in the Occupied Palestinian Territory.

Canada was one of the states that made a written submission. 

Canada’s short six-page submission asked the ICJ to not fulfill the legal request received from the United Nations General Assembly. Over the last several days, about 2,000 letters have been sent to the Canadian government expressing concern about Canada’s statement to the World Court.

So once again, as the Trudeau government crows about international law and the rules based international order, Canada is seeking to block the ICJ from delivering a legal opinion on Palestine. 

Specifically, Canada’s submission said since Israel had not provided consent to the process, the ICJ should not provide an advisory opinion. This would seem akin to an accused abuser being able to stop a court proceeding by saying they did not agree to it.

The request to the ICJ was a result of the December 30, 2022 UN General Assembly resolution A/RES/247, which asked that the ICJ provide an advisory opinion on the legal consequences arising from the violation of Palestinians’ right to self-determination due to Israel’s occupation and annexation of its territory. Canada, following its long-standing pro-Israel voting record at the UN, unsurprisingly, voted against this resolution.

The recent written submissions received by the ICJ are part of the process that will lead towards a hearing later in the year. Those who submit a written statement may also make comments on other submitted statements—perhaps one motivator for Canada to make its submission. 

Rather than considering the substantive legal issues included in the request for an ICJ advisory opinion, Canada suggested that a Court opinion would polarize the issue.

Even the US, while showing its pro-Israel bias, at least appeared to take the response to the ICJ somewhat serious with a an over 100-page response. It is also worth noting that even long-term close allies of Israel, Germany and the Netherlands, did not provide a response. Perhaps attempting to separate themselves from the current far right Israeli Coalition government. Other countries such as Ireland submitted substantive detailed responses. Ireland beat Canada for a seat at the UNSC in 2020, with member states recognizing Canada’s pro-Israel bias in its voting record at the United Nations.  

It is unlikely that Canada really thinks its brief written submission will block the ICJ advisory opinion, but perhaps expects that the Canadian pro-Israel lobby will see this as Canada continuing its support. 

Although NGOs submission are not considered part of the ICJ case file, they are “treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements.” Canada and all member states are encouraged to consult statements and publications from NGOS, and to consider the arguments included while engaging in the proceedings. 

It is an embarrassment that Canada has ignored at least five essential substantive legal issues included in the United Nations request to the ICJ for an advisory opinion. This includes: i) right to self-determination; ii) the inherent illegality of the occupation; iii) the prolonged occupation including unlawful use of force; iv) acquisition of territory by force specifically annexation and settlements; and v) discriminatory legislation and measures specifically apartheid.

Rather, Canada, in its submission to the World Court, indicated it is of the opinion that an advisory opinion would derail direct negotiations, choosing instead to encourage Israelis and Palestinians to return to the negotiating table. Canada’s attempt at reducing the Israeli settler-colonial project to a bilateral issue of conflict is embarrassing at best.

Despite Canada’s optical illusion of distancing itself from the current Israeli right-wing Coalition, Canada remains committed to defending Israel in international affairs. In November 2018, during an official visit to Israel,then Foreign Minister Chrystia Freeland openly said that she hoped securing a seat at the UNSC would allow Canada to serve as an “asset for Israel.” Ironically, Canada may not have gotten that UNSC seat for that very reason. 

This is not the first time that the ICJ has issued an advisory opinion regarding Palestine. On July 9 2004, the ICJ confirmed that the Wall is illegal and ruled that Israel must dismantle it. Canada claims to oppose Israel’s construction of the barrier and indicates the construction is contrary to international law under the Fourth Geneva Convention. That said, Canada has taken no concrete action in the almost twenty years since that ICJ ruling to hold Israel accountable.Canada also continues to maintain that the Palestine does not have jurisdiction at the International Criminal Court (ICC), based on Canada’s stance that Palestine is not a state. In 2020, the Canadian government did not submit a brief to the ICC, but in a letter sent to the ICC in February 2020, the Canadian government took the position that the ICC did not have jurisdiction over Palestine. At the same time, in a veiled threat, Canada reminded the ICC of past financial contributions.