July
19, 2024
In
a landmark opinion issued today, the International Court of Justice (ICJ) has
said that Israel’s 57-year occupation of the West Bank, East Jerusalem and the
Gaza Strip is in breach of international law.
Demonstrators gather outside the Peace Palace, home of the International
Court of Justice, to demand a ceasefire and show support for Palestine
and Nicarague, in The Hague, Netherlands, on April 30, 2024.The
proceedings came out of a UN resolution passed in December of 2022. In the
resolution, the UN General Assembly requested an advisory opinion from the
International Court of Justice on “Israeli practices affecting the human rights
of the Palestinian people in the Occupied Palestinian Territory, including East
Jerusalem.” The ICJ, also known as the World Court, is the UN’s principal
judicial organ that adjudicates disputes between member states and provides
advisory opinions on international legal matters.
This
case is separate from the one brought forth by South Africa last year, in which
the ICJ provisionally ruled that Israeli practices in Gaza are plausibly
genocidal. Following that ruling, Israel indicated that it rejects the ICJ’s
findings. In a post on X, Prime Minister Benjamin Netanyahu wrote, “Nobody will
stop us – not The Hague, not the axis of evil and not anybody else.”
Public
hearings on Israel’s occupation of Palestine were held at The Hague on February
19 and lasted for six days, during which 52 countries participated and
presented arguments. The panel of 15 judges on the court was asked by the UN
General Assembly to consider “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.”
The
hearings commenced with remarks by Palestinian Foreign Minister Riyad
al-Maliki, in which he asserted the rights of Palestinians to live “in freedom
and dignity in their ancestral land.” He asked the ICJ to recognize the
Palestinian people’s right to self-determination and called on the court to
“declare Israel occupation is illegal and must end it completely and
unconditionally.”
Israel
did not participate in the oral arguments, but the Office of the Prime Minister
issued a statement saying, “Israel does not recognize the legitimacy of the
discussion at the International Court of Justice in The Hague regarding the
‘legality of the occupation’ — a move designed to harm Israel’s right to defend
itself against existential threats.”
Israel’s
Occupation Is Sustained by a Combination of State-Sponsored Violence and
Apartheid
Israel
was born of British colonialism; it was created through a mixture of state
violence and vigilante terrorist acts that displaced Palestinians and
dispossessed them from their homes and land; it is supported — financially,
militarily and diplomatically — by Western, primarily U.S., imperialism-serving
war profiteers; and it is sustained by a combination of state-sanctioned
violence and a system of apartheid that denies Palestinians — who form half the
people in the land under Israeli control from the river to the sea — their
equal rights.
After
the Nakba of 1948, the State of Israel was established on 78 percent of the
land of what had been British Mandate Palestine. During the June 1967 war,
Israel took over the West Bank, Gaza and Arab East Jerusalem, the remaining 22
percent of historic Palestine, now known as “the Occupied Territories.” In
1980, Israel unilaterally formalized its annexation of East Jerusalem — a move
that was condemned as illegal by the international community.
Over
the past 57 years, successive Israeli governments have brutally terrorized
Palestinians, demolished homes, confiscated large tracts of Palestinian lands,
expanded Israeli settlements in the West Bank — considered illegal under
international law — and added many new ones that effectively rendered the
“two-state solution” impossible. Now West Bank settlers number more than
700,000; they are heavily armed and are constantly terrorizing Palestinian
residents in neighboring villages in an effort to force them to leave, as
described in a report by Amnesty International.
According
to the Palestinian Health Ministry, since October 7,575 Palestinians — of whom
138 are children — were killed in the occupied West Bank and East Jerusalem by
soldiers and armed settlers.
Israel
employs oppression, violence, persecution, checkpoints, house demolitions,
displacement, expulsion, imprisonment, land theft, torture of children and
collective punishment to ethnically cleanse non-Jewish inhabitants.
Racism
in Israel is not a flaw in the system; it is the system. International human
rights organizations, including Amnesty International and Human Rights Watch,
have issued extensive reports that concluded that Israel practices apartheid.
United Nations Special Rapporteur on Human Rights in the Occupied Palestinian
Territory Francesca Albanese has come under vicious attacks following her
report highlighting Israeli settler colonialism and apartheid. Hagai El-Ad,
director of B’Tselem, Israel’s oldest human rights organization, recently said
in a report, “Israel is not a democracy that has a temporary occupation
attached to it: It is one regime between the Jordan River to the Mediterranean
Sea, and we must look at the full picture and see it for what it is:
apartheid.”
Unlike
the framing commonly put forth by politicians and mainstream media, it is not
“complicated.” It is not “an age-old religious feud.” And, it is not “a
conflict by extremists on both sides.”
The
ICJ’s Advisory Opinion Is the Court’s Latest Blow to Israel and Its Allies
At
a public sitting at the Peace Palace in The Hague, Judge Nawaf Salam, president
of the World Court, read the ICJ’s advisory opinion regarding Israel’s
occupation of Palestinian territories.
The
panel of judges concluded by 14 votes to 1 that the ICJ has jurisdiction to
give the advisory opinion requested by the UN General Assembly. By 11 votes to
4, the court is of the opinion that “the State of Israel’s continued presence
in the Occupied Palestinian Territory is unlawful” and that “Israel is under an
obligation to bring to an end its unlawful presence in the Occupied Palestinian
Territory as rapidly as possible. “
With
only a single “no” vote by Judge Julia Sebutinde of Uganda, the remaining 14
judges on the panel agreed that Israel’s settlement policies are in breach of
international law and that “the State of Israel is under an obligation to cease
immediately all new settlement activities, and to evacuate all settlers from
the Occupied Palestinian Territory.” Also, by 14 votes to 1, the court agreed
that “Israel has the obligation to make reparation for the damage caused to all
the natural and or legal persons concerned in the Occupied Palestinian
Territory.”
By
12 votes to 3, the ICJ is of the opinion:
- that all States are under an obligation not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the Occupied Palestinian Territory and not to render aid or assistance in maintaining the situation created by the continued presence of the State of Israel in the Occupied Palestinian Territory;
- that international organizations, including the United Nations, are under an obligation not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the Occupied Palestinian Territory;
- that the United Nations, and especially the General Assembly, which requested this opinion, and the Security Council, should consider the precise modalities and further action required to bring to an end as rapidly as possible the unlawful presence of the State of Israel in the Occupied Palestinian Territory.
Today’s
highly significant opinion by the ICJ will have far-reaching effects —despite
the fact that it is considered as advisory and nonbinding. Israeli Prime
Minister Benjamin Netanyahu was quick to blast the opinion, releasing a July 19
statement saying: “The Jewish people are not occupiers in their own land — not
in our eternal capital Jerusalem, nor in our ancestral heritage of Judea and
Samaria” (a reference to the occupied West Bank), and adding, “No decision of
lies in The Hague will distort this historical truth, and similarly, the
legality of Israeli settlements in all parts of our homeland cannot be
disputed.”
Israeli
politicians’ eagerness to assure their public and the world that the World
Court’s decision will be ignored comes as no surprise given how they reacted in
May to the International Court of Justice when it ordered an end to Israel’s
military offensive on Rafah as part of the broader genocide case.
The
ICJ’s order relating to Israel’s Rafah offensive required Israel, “in
conformity with its obligations” under the Genocide Convention, to “immediately
halt its military offensive, and any other action in the Rafah Governorate,
which may inflict on the Palestinian group in Gaza conditions of life that
could bring about its physical destruction in whole or in part.” The court also
ordered Israel to open the Rafah crossing and allow aid trucks of food, water
and medical supplies to reach displaced Palestinians. It also required that
Israel provide access for investigators and report back on its progress within
one month.
But
as we have seen, Israel complied with none of the above. Instead, it went ahead
with its military offensive on Rafah and has further intensified its assault on
Gaza City and northern Gaza. According to the Palestinian Ministry of Health,
Israel killed 309 Palestinians and wounded 640 across Gaza since July 11,
raising the death toll to 38,794 and the number of wounded to 88,881 in the
Gaza Strip. Among the dead, 28,428 have been fully identified. These include
7,779 children, 5,466 women and 2,418 elderly people. In addition, around
10,000 more are estimated to be under the rubble.
The
Lancet, a respected British medical journal, calculated that the real death
toll, including those missing under the rubble and “indirect” deaths from
malnutrition, disease, and other conditions brought on by the conflict, could
be around 186,000 people — roughly 8 percent of Gaza’s population. Meanwhile,
the U.S. House of Representatives just passed a bill to ban the State
Department from accurately sharing the death toll in Palestine.
Gaza
has been pulverized. Gaza today is thirsty; Gaza today is hungry; Gaza today is
bleeding and is crying for help — for a ceasefire and an end to the suffering
of its people. Nearly 80 percent of the Palestinians in Gaza have been forced
from their homes and a colossal humanitarian crisis has taken hold, including,
per the United Nations, a full-blown famine. The United Nations experts warned
that the number of deaths of Palestinian children due to hunger and
malnutrition leaves no doubt that famine has spread across the entire Gaza
Strip.
Seventy-Five
Percent of All UN Member States Recognize the State of Palestine
Today’s
damning ICJ opinion is in line with what two-thirds of all UN member states
agree on. As of June 2024, the State of Palestine is recognized as a sovereign
state by 146 of the 193 member states of the United Nations, or over 75 percent
of all UN member states. Spain, Ireland, Norway and Slovenia most recently
recognized the State of Palestine.
By
going to the ICJ, the internationally recognized State of Palestine is calling
upon all countries of the world to genuinely support democracy and equal rights
for Palestinians to achieve a peace that would be in the best interest of
Palestinians and Israelis alike.
Despite
numerous UN Security Council resolutions, the Israeli government led by
Benjamin Netanyahu has rejected the establishment of an independent State of
Palestine in the West Bank, Gaza and East Jerusalem. The current extremist,
right-wing Israeli leaders of the settlement movement such as Bezalel Smotrich
and Itamar Ben-Gvir have openly called for ethnic cleansing of the West Bank
and Gaza to create a Greater Israel from the Jordan River to the Mediterranean
Sea.
In
anticipation of the ICJ opinion, the Israeli parliament passed a resolution on
July 18 — the day before the ICJ announced its advisory opinion — affirming its
opposition to Palestinian statehood. The resolution, which was opposed only by
the nine Arab members of the Israeli Knesset, states that “the establishment of
a Palestinian state in the heart of the Land of Israel would constitute an
existential threat to the State of Israel and its citizens, perpetuate the
Israeli-Palestinian conflict and destabilize the region.”
In
a Haaretz article on July 18, far right Finance Minister Bezalel Smotrich of
the Religious Zionist Party was quoted as saying in a post on X: “With a
decisive majority of 68 to 9, the Knesset voted against the establishment of an
Arab terror state in Israel, not now, not in the future, not unilaterally, and
not within an agreement.” Referring to the annexation of the West Bank, he
added: “The awakening of the overwhelming majority in Israeli society is
amazing. Now is the time for sovereignty.”
While
the Biden administration continues its insincere rhetorical support for the
two-state solution, the U.S. has remained Israel’s staunchest supporter, always
using its veto power to shield it from accountability and prevent Palestinian
statehood despite Israel’s repeated violations of international law and UN
Security Council resolutions.
The
Palestinian people have faced a long history of injustice — from colonialism to
displacement to present-day apartheid. The countries of the Global South
recognize that the unimaginable suffering being inflicted every minute of every
day on the Palestinian people must come to an end. Time will tell if the ICJ’s
opinion will produce a change in the policies of Western governments and
succeed in finally allowing Palestinians to return to their homes and live
their lives with freedom, equality and dignity.
In a scathing Advisory Opinion sure to tighten the legal screws
on Israel and place its Western allies in a huge bind, the world’s supreme
judicial body declared today that Israel’s 57-year occupation and settlement of
the West Bank and East Jerusalem are unlawful, that both must end, that
settlements must be evacuated, and that Palestinians — denied their inalienable
right to self-determination – must be compensated for their losses and allowed
to return to their lands.
“The sustained abuse by Israel of its position as an occupying
Power, through annexation and an assertion of permanent control over the
Occupied Palestinian Territory and continued frustration of the right of the
Palestinian people to self-determination, violates fundamental principles of
international law and renders Israel’s presence in the Occupied Palestinian
Territory unlawful,” Lebanese court President Nawaf Salam told the packed court
chambers at the Peace Palace in The Hague.
And, Judge Nawaf said, reading from the ICJ’s 83-page Advisory
Opinion, the international community is obliged not to recognize as legal the
internationally wrongful acts Israel has carried out in the course of its
prolonged occupation, nor render aid and assistance in furthering them.
All nine clauses of the Advisory Opinion’s operative statement
were passed by an overwhelming majority of the court’s 15 justices.
In contrast to the ICJ’s January 26 provisional measures order
against Israel, issued in response to South Africa’s application under the
Genocide Convention, Advisory Opinions from the UN’s supreme judicial body are
not binding.
They are the most authoritative expressions of international
law, however, and carry enormous political weight.
In declaring Israel’s occupation of the Palestinian territories
unlawful, the court moves far beyond its 2004 ruling on Israel’s Separation
Wall. That opinion simply declared the barrier illegal, and an impediment to
the Palestinian people’s right to self-determination. Israel ignored it and its
Western allies have refrained from enforcing it.
In today’s Advisory Opinion, the court re-enunciated the
illegality of Israel’s settlement enterprise under the Fourth Geneva
Convention, and confirmed the applicability of Geneva IV, the two Covenants on
Civil, Political, Economic, Social and Cultural Rights, and the Convention on
the Elimination of Racial Discrimination (CERD) outside Israel’s
internationally recognized territory (Israel denies they apply).
Sidestepping the legal consequences of Israel’s assault on Gaza
(deemed plausibly genocidal in its entirely different provisional measures
orders against Israel), the court confirmed that Gaza’s status as an integral
part of the occupied territories — and Israel’s status as occupying power —
preceded the events of October 7.
UN General Assembly request
Today’s ruling is the court’s response to a request for an
Advisory Opinion on the ‘Legal Consequences arising from the Policies and
Practices of Israel in the Occupied Palestinian Territory, including East
Jerusalem’, and on how those policies and practices affect the “legal status”
of Israel’s occupation, referred to it late last year by the UN General
Assembly, in a resolution Israel and its Western allies moved heaven and Earth
to stave off.
In his letter to the ICJ informing it of the Advisory Opinion
request, UN Secretary General Antonio Guterres asked the ICJ to address “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 … and from its adoption of
related discriminatory legislation and measures.”
Reference to “discriminatory legislation and measures” in the
General Assembly’s Advisory Opinion request opened the door for the court to
opine on the question of Israeli apartheid.
And it did, crucially citing Article 3 of the 1965 Convention on
the Elimination of Racial Discrimination and Apartheid (CERD), in which
apartheid is specifically prohibited – the first such prohibition, predating
the 1976 Apartheid Convention.
“The Court observes that Israel’s legislation and measures
impose and serve to maintain a near-complete separation in the West Bank and
East Jerusalem between the settler and Palestinian communities,” today’s
Advisory Opinion says. “For this reason, the Court considers that Israel’s
legislation and measures constitute a breach of Article 3 of CERD.”
“I think the finding of a breach of Article 3 is hugely
significant,” Irish legal scholar David Keane told Mondoweiss following the
ruling.
Still, Keane points out, a breach of Article 3 could refer to
racial segregation or apartheid, or both. Several judges brought up the Article
3 breach in individual declarations, without specifying apartheid.
South African Judge Dire Tladi did.
“I interpret this finding to be an acceptance that the policies
and practices of Israel constitute a breach of the prohibition of apartheid,”
Judge Tladi wrote.
“I can understand that there is a reluctance to describe the
policies of Israel in the OPT as apartheid. I suspect the main reason for this
hesitation is that, to date, only the policies of the pre-1994 South African
government in South Africa and elsewhere in Southern Africa have been described
as apartheid … [It] is hard not to see that Israeli policies, legislation and
practices involve widespread discrimination against Palestinians in nearly all
aspects of life much like the case in apartheid South Africa.”
The court’s ruling on CERD Article 3, albeit nuanced, comes at
an opportune moment. For the past six years, the CERD committee has been
addressing an ‘Inter-State Complaint’ lodged by Palestine against Israel,
claiming Israel to be in breach of Article 3. The complaint has been idling in
‘conciliation’ mode for over a year. Israel has refused to participate. Today’s
court reference to an Article 3 breach promises to accelerate CERD.
“The Advisory Opinion does provide CERD with a platform to make
an individuated decision on the issue of apartheid,” David Keane told
Mondoweiss.”
Swift ICJ response
Given the complexity of the questions put to it by the UN
General Assembly, the ICJ has responded quickly.
In early January, UN Secretary General Guterres handed over
15,000 pages of UN reports and resolutions to the court, documenting the full
spectrum of Israeli practices over 57 years of Israeli military occupation.
Five days of public hearings were held in mid-February.
Israel’s breaches of international law are extensive and
egregious, the UN top court was told, in oral pleadings and written statements
filed by 57 UN member states and three organizations – the League of Arab
States, the Organization of Islamic Cooperation and the African Union — the
largest number ever to argue a case before the ICJ.
The core question put to the court: Has Israel’s presence in the
OPT crossed the line between lawful occupation, as defined and regulated under
the 1907 Hague and 1949 Geneva Conventions, and the “inadmissible acquisition
of territory by war” – i.e. annexation?
Yes, an increasing number of legal authorities have stated in
recent years.
In a Fall 2017 report to the UN Human Rights Council, then
Special Rapporteur Michael Lynk put forward a four-part test for the legality
of an occupation. Israel failed, Lynk declared: a) by annexing portions of the
territory it occupied in June 1967 (East Jerusalem and the Golan Heights); b)
by failing to return the territory to sovereign Palestinian rule in a
reasonable amount of time; c) by failing to act in the best interests of the
Palestinian people (referred to under the Fourth Geneva Convention as a
‘protected people’; and by failing to act in good faith, “in full compliance
with its duties and obligations under international law,” and as a UN member
state.
And, Lynk and others argued before the ICJ this past February,
the ICJ has established a precedent on this matter.
In its 1971 opinion on the Continued Presence of South Africa in
Namibia (South West Africa), the court ruled that South Africa had “abused the
terms of its trusteeship,” that its occupation was therefore “illegal,” and
that the Apartheid regime was obliged to “withdraw its administration from
Namibia immediately and thus put an end to its occupation of the Territory.”
Having failed to stave off an Advisory Opinion resolution at the
UN, Israel’s allies had urged the court to decline to render one, even if the
request was admissible and within the court’s jurisdiction; doing so would muck
up the ‘peace process’, a bilateral dispute best resolved by the parties
themselves; if it did render an opinion, to frame its opinion in the most
narrow way possible, distancing itself from complex root causes, going back a
century, based on over 15,000 pages of documents provided to it by the General
Assembly that the court hasn’t the capacity to assess.
The Court dismissed these arguments in today’s ruling.
While continuing to seek a just and peaceful resolution to the
so-called ‘conflict, the ICJ ruled today, the international community must hold
Israel accountable for its wrongful acts.
The “precise modalities to bring to an end Israel’s unlawful
presence in the Occupied Palestinian Territory is a matter to be dealt with by
the General Assembly, which requested this opinion, as well as the Security
Council,” today’s Advisory Opinion states. “[It] is for the General Assembly
and the Security Council to consider what further action is required to put an
end to the illegal presence of Israel, taking into account the present Advisory
Opinion.”
However, today’s Advisory Opinion emphasizes, “all States are
under an obligation not to recognize as legal the situation arising from the
unlawful presence of Israel in the Occupied Palestinian Territory. They are
also under an obligation not to render aid or assistance in maintaining the
situation created by Israel’s illegal presence in the Occupied Palestinian
Territory. It is for all States, while respecting the Charter of the United
Nations and international law, to ensure that any impediment resulting from the
illegal presence of Israel in the Occupied Palestinian Territory to the
exercise of the Palestinian people of its right to self-determination is
brought to an end.”
Historic ruling
“I think it’s a really historic ruling,” says Julia Pinzauti, a
legal scholar at Leiden University, who teaches a course about the ICJ. “And,”
Pinzauti told Mondoweiss, “given how blatantly illegal Israeli practices are, I
think the ICJ couldn’t have reached any other conclusion.”
“[It’s] the culmination of years and years of work, especially
by Palestinian human rights organizations,” Pinzauti says. “Ultimately, whether
these rulings will make a difference or not in terms of ending an illegal
occupation and saving lives and ending apartheid and discriminatory practices
and measures that impede the Palestinian people’s right to self-determination,
it really depends on third states and international organizations.”
“This will now be a centerpiece of virtually every General
Assembly and Human Rights Council resolution from now on,” former UN Special
Rapporteur Michael Lynk told Mondoweiss, in anticipation of the ruling, a few
days prior.
“The word ‘illegal’ will be in front of ‘occupation’ from now
on,” says Lynk. Israel’s war on Gaza has deepened Israel’s isolation, says
Lynk. “A ruling of this sort coming from the International Court of Justice
will, I think, only accelerate that kind of isolation.”
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