Israel’s system is “an even more extreme form of the apartheid” than South Africa’s was, the South African ambassador said.
For six days, more than 50 countries, the League of Arab States, the African Union and the Organisation of Islamic Cooperation presented testimony to the International Court of Justice (ICJ, or World Court) about the legality of Israel’s occupation of Palestinian territory. The overwhelming majority of them, largely from the Global South, told the court that the occupation was illegal.
The historic hearing, which took place February 19-26, was held in response to the United Nations General Assembly’s December 30, 2022, request for an advisory opinion on the following questions:
(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 … 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?
The General Assembly asked the ICJ to discuss these issues with reference to international law, including the UN Charter; international humanitarian law; international human rights law; resolutions of the Security Council, General Assembly and Human Rights Council; and the 2004 advisory opinion of the ICJ finding that Israel’s wall on Palestinian land violated international law.
Israel regularly thumbs its nose at the World Court. It ignored the court’s ruling that the wall was illegal and refuses to implement the ICJ’s provisional order to refrain from committing genocidal acts and ensure humanitarian aid to Gaza.
Before the hearing, Israeli Prime Minister Benjamin Netanyahu blasted the court: “Israel does not recognize the legitimacy of the proceedings of the international court in The Hague regarding ‘the legality of the occupation’ — which are an effort designed to infringe on Israel’s right to defend itself against existential threats,” he said. “The proceedings in The Hague are part of the Palestinian attempt to dictate the results of the diplomatic settlement without negotiations.”
Although Israel didn’t appear at the hearing, it submitted a five-page statement which called the General Assembly’s questions “a clear distortion of the history and present reality of the Israeli-Palestinian conflict.” Israel didn’t even attempt to defend the legality of the occupation, focusing instead on why the ICJ should not render an advisory opinion.
Israel complained that the ICJ “is asked simply to presume Israeli violations of international law — to accept, as given, plainly biased and flawed assertions directed against Israel alone.” Although consent of the parties is not required for the ICJ to render advisory opinions, Israel protested that it had “not given its consent to judicial settlement of its dispute with the Palestinian side.”
A handful of countries — including the U.S., Canada, U.K., Fiji, Hungary, Italy and Zambia — sided with Israel. Only Fiji argued that the occupation was lawful. The U.S. contended that an occupation can be neither lawful nor unlawful; it is rather governed exclusively by international humanitarian law, which only deals with acts by the occupying power, and doesn’t examine the legality of the occupation itself.
“The court should not find that Israel is legally obligated to immediately and unconditionally withdraw from occupied territory,” said Richard Visek from the U.S. State Department, urging the court to consider Israel’s “legitimate security needs.” Visek defended Israel in the ICJ the day after the U.S. vetoed a Security Council resolution demanding an immediate ceasefire in Gaza for the fourth time.
Israeli Genocide Is “Result of Decades of Impunity”
“The genocide underway in Gaza is the result of decades of impunity and inaction. Ending Israel’s impunity is a moral, political and legal imperative,” Palestine’s Foreign Minister Riyad al-Maliki told the court. “Successive Israeli governments have given the Palestinian people only three options: displacement, subjugation or death; these are the choices, ethnic cleansing, apartheid or genocide.”
“Israel restricts every aspect of Palestinian life, from birth to death, resulting in manifest human rights violations and an overt system of repression and persecution,” al-Maliki continued. “Through indiscriminate killing, summary execution, mass arbitrary arrest, torture, forced displacement, settler violence, movement restrictions and blockades, Israel subjects Palestinians to inhumane life conditions and untold human indignities, affecting the fate of every man, woman and child under its control.”
The statement by Ambassador Assad Shoman from Belize powerfully reflected the arguments made by most countries: “No state reserves to itself the right to systematically violate the rights of a people to self-determination — except Israel. No state seeks to justify the indefinite occupation of another’s territory — except Israel. No state commits annexation and apartheid with impunity, except — it seems — Israel.” He said that “Israel must not be allowed such blatant impunity.”
Shoman declared, “Israel must be made to behave like all civilized nations: Stop violating international law and UN resolutions! Respect the right of the Palestinian people to self-determination. Palestine must be free!”
The Palestinian People Have the Unequivocal Right to Self-Determination
Several treaties, including the UN Charter; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social and Cultural Rights, enshrine the right of peoples to self-determination. This right is considered to be jus cogens, a peremptory norm and the highest form of international law, from which no derogation is permitted.
In its advisory opinion on the wall, the ICJ ruled that “the principle of self-determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 (XXV) . . . pursuant to which ‘Every State has the duty to refrain from any forcible action which deprives peoples referred to . . . of their right to self-determination.’”
Professor Philippe Sands argued on behalf of Palestine that the Palestinians’ right to self-determination includes, but isn’t limited to, “the right to control their own land and natural resources; the right to be free from demographic manipulations by any third party; and the right to determine their own political status, economic development, their own futures.”
“The enduring Palestinian right of self-determination means that the Palestinian people, and the State of Palestine, not Israel, are sovereign over the territory Israel captured in 1967,” Ralph Wilde from the League of Arab States said. Israel’s annexation in East Jerusalem and the rest of the West Bank, purporting to be the “exclusive sovereign authority” there, “constitutes a complete repudiation of Palestinian self-determination as a legal right, since it empties the right entirely of any territorial content,” Wilde added.
Israel’s 2018 Basic Law: Israel as the Nation-State of the Jewish People says that “the right to national self-determination in the State of Israel is unique to the Jewish people.” Palestinians are excluded from the right to self-determination under that law.
The right to self-determination “exists and operates simply and exclusively because the Palestinian people are entitled to it. It does not depend on others agreeing to its realization. It is a right,” Wilde said.
Israel’s Occupation of Palestinian Territory Is Illegal
It is a peremptory norm of international law that territory cannot be acquired by force. In 1967, Israel launched a “preemptive” war against Egypt, Jordan and Syria, and seized the West Bank, Gaza, Jerusalem, the Golan Heights and the Sinai Peninsula. Israel has occupied those Palestinian territories ever since.
Visek from the U.S. State Department told the ICJ that Israel was defending itself in the 1967 war. But it was Israel that initiated the war. Rossa Fanning, Ireland’s attorney general, called it “the war [Israel] launched,” thus, an act of aggression. Wilde noted that Israel “claimed to be acting in self-defence, anticipating a non-immediately imminent attack,” but “even assuming, arguendo, its claim of a feared attack, States cannot lawfully use force in non-immediately imminent anticipatory self-defence.” Article 51 of the UN Charter forbids a state from using military force except in self-defense after an armed attack by another state.
Moreover, in its wall opinion, the ICJ established the nonapplicability of “self-defence” under Article 51 in the situation between Israel and the occupied Palestinian territory. An occupying power, the court held, cannot claim self-defense when the threats emanate from inside the occupied territory.
Israel asserts that it has not occupied the Gaza Strip since 2005, when it withdrew its military forces and settlements. But it continues to exercise military control over Gaza by continuous military operations in and against Gaza. It also exerts administrative control over Gaza through the exclusive regulation of all movement of goods and people, civil population registry, and tax and revenue system. In addition, Israel maintains continuous control over Gaza’s borders, air and sea space, electricity, water, sewage and telecommunication systems.
Gaza and its population remain under effective Israeli control and are, therefore, occupied. UN Security Council resolution 1860 adopted in 2009 states that “the Gaza Strip constitutes an integral part of the territory occupied in 1967.”
The Palestinians have the right to use force to resist Israel’s illegal occupation. On several occasions, the General Assembly has reaffirmed “the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial domination, apartheid and foreign occupation by all available means, including armed struggle.”
René Lefeber from the Netherlands told the court that self-determination is a “permanent, continuing, universal and inalienable right with a peremptory character.” If that right is denied by Israel, Lefeber said, Palestinians living under colonial domination, apartheid or foreign occupation have the right to liberate themselves “by all available means, including armed struggle … in accordance with international law.”
Apartheid “Goes Hand-in-Hand” With Violation of Right to Self-Determination
Israel maintains a system of apartheid in the occupied Palestinian territory, as confirmed by Amnesty International, Human Rights Watch and Israeli human rights group B’Tselem. Vusimuzi Madonsela, South Africa’s ambassador to the Netherlands, called Israel’s apartheid system “an even more extreme form of the apartheid that was institutionalized against Black people in my country.”
In the West Bank, Israel preserves its separation wall, segregated roads, checkpoints and restrictive permit requirements. While Israelis are subject to a civil legal system, Palestinians are controlled by a military system. They can be held indefinitely with no charges or due process in administrative detention and can be convicted based on secret evidence.
“Using a toolbox of population control and inhumane acts amounting to aggravated forms of racial discrimination, Israel restricts every aspect of Palestinian life, from birth to death, resulting in manifest human rights violations and an overt system of repression and persecution,” Namira Negm, legal counsel for the African Union and member of the Palestinian delegation, told the ICJ.
The Rome Statute for the International Criminal Court considers apartheid a crime against humanity. The prohibition of apartheid is a peremptory norm of international law.
Apartheid “goes hand-in-hand” with Israel’s violation of the Palestinians’ right to self-determination, Philippa Webb from Belize argued to the court. “It is impossible to realize a people’s right to self-determination within an ‘institutionalised regime of systematic racial oppression and discrimination.’ The dehumanizing nature of apartheid suppresses the equality, identity and dignity at the heart of self-determination.”
Israeli Settlements Constitute Illegal Annexation
More than 700,000 Israeli settlers — 10 percent of the nearly 7 million people in Israel — have been transferred into the occupied Palestinian territories, “continuously terrorizing and forcibly displacing Palestinians from even more of their territory and engaging in pogroms against them,” Shoman from Belize stated.
This constitutes a “disguised form of annexation,” Ireland’s Fanning said. “The prohibition on the acquisition of territory by force is firmly established in customary international law. Using force to occupy and maintain such occupation for the purposes of territorial acquisition or annexing an occupied territory by force in whole or in part, is each illegal.”
Israel’s policy of settling its civilians in occupied Palestinian territory and displacing the local population violates international humanitarian law, as the ICJ has ruled. Article 49 of the Fourth Geneva Convention says: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Legal Consequences for All States and the UN
“Israel must dismantle the physical, legal and policy regime of discrimination and oppression … evacuate Israeli settlers from Palestinian territories, permit Palestinians to return to their country and property, and lift the siege and blockade of Gaza,” Webb from Belize told the ICJ. “These consequences, taken collectively, mean that Israel must immediately, unconditionally, and totally withdraw from the entire Palestinian territory.”
Wilde from the League of Arab States said that Israel’s actions constitute a “multifaceted existential illegality” which means the occupation must end. “Israel must renounce its claim to sovereignty over the Palestinian territory; all settlers must be removed. Immediately. This is required to end the illegality, to discharge the positive obligation to enable immediate Palestinian self-administration, and because Israel lacks any legal entitlement to exercise authority,” he stated. If the occupation continues, Wilde added, “everything Israel does in the Palestinian territory lacks a valid international legal basis … Israel lacks any valid authority to do anything, and whatever it does is illegal.”
Pieter Andreas Stemmet, on behalf of South Africa, stated that Israel must “dismantle the settler colonial apartheid régime against Palestinian people, rescinding all legislative measures adopted with a view to annex Palestinian land and discriminate against the Palestinian people, allowing for the full restitution of Palestinian property and for the right to self-determination of the Palestinian people to be finally realized.”
The right to self-determination is erga omnes, which means it is a duty owed to all and all states have an obligation to enforce it.
Professor Sands told the court that UN member states must bring Israel’s occupation to an immediate end in order to protect the right to self-determination. “No aid. No assistance. No complicity. No contribution to forcible actions. No money, no arms, no trade, no nothing,” he said. “All UN members are obliged by law to end Israel’s presence on the territory of Palestine.”
Although Israel has a shameful history of violating resolutions of the Security Council and the General Assembly, those bodies “should consider the additional measures and binding international legitimacy tools stipulated in the charter that are required to immediately end the illegal occupation and take the necessary measures to ensure the implementation of its relevant resolutions without any further delay,” Ammar Al Arsan argued on behalf of the Syrian Arab Republic, of which the Golan Heights has remained occupied by Israel since 1967.
Israel contends that the occupation can only end after a negotiated settlement. But as Mohamed Helal from the African Union noted, “To condition the end of occupation on a negotiated settlement is to make the occupation permanent, given that the occupying Power — Israel — refuses to negotiate on the basis of the two-State solution and it has declared its will that it will never accept the establishment of a Palestinian State.”
Moreover, Wilde said, “Israel cannot lawfully demand concessions on Palestinian rights as the price for ending its impediment to Palestinian freedom.” His statement was echoed by Professor Sands, who told the court, “The existence and exercise of the right to self-determination is not and can never be a matter for negotiation.”
The ICJ will likely issue its advisory opinion in about six months.
Copyright Truthout. Reprinted with permission.
