Israel’s formula is “an even more excessive form of apartheid” than South Africa’s, the South African ambassador said.
Over the course of six days, more than 50 countries, the League of Arab States, the African Union and the Organization of Islamic Cooperation testified before the International Court of Justice (ICJ, or World Court) about the legality of Israel’s profession of Palestinian territory. The vast majority of them, mostly from the Global South, told the court that the profession was illegal.
The hearing, which took place from 19 to 26 February, took a position in response to the United Nations General Assembly’s request for an advisory opinion of 30 December 2022 on the following issues:
(a) What are the legal consequences of Israel’s continued violation of the right of the Palestinian people to self-determination, its prolonged occupation, colonization and annexation of the Palestinian territory occupied since 1967, by adding measures aimed at changing the demographic composition, character and prestige of the Holy City of Jerusalem, and the adoption of similar discriminatory laws and measures?
(b) How do Israel’s policies and practices work?Do they affect the legal prestige of the occupation and what are the legal consequences of that prestige for all States and the United Nations?
The General Assembly requested the ICJ to address these problems with reference to foreign law, adding the Charter of the United Nations; foreign humanitarian law; foreign human rights law; resolutions of the Security Council, the General Assembly and the Human Rights Council; and the 2004 ICJ advisory opinion that concluded that the Israeli wall on Palestinian land violated foreign law.
Israel has ignored the court’s ruling that the wall is illegal and refuses to enforce the ICJ’s interim order prohibiting it from committing acts of genocide and providing humanitarian aid to Gaza.
Ahead of the hearing, Israeli Prime Minister Benjamin Netanyahu lashed out at the court: “Israel does not recognize the legitimacy of the proceedings of the International Court in The Hague related to the ‘legality of the occupation,’ which are an effort to undermine Israel’s right to protect itself against existential threats,” he said. “The proceedings in The Hague are part of the Palestinian attempt to dictate the final results of the diplomatic settlement without negotiations. “
Although Israel did not appear at the hearing, it submitted a five-page document in which it called the General Assembly’s questions “a transparent distortion of the history and existing truth of the Israeli-Palestinian conflict. “Israel has not even attempted to protect the legalidad. de occupation, focusing instead on why the ICJ does not deserve to consider an advisory opinion.
Israel complained that the ICJ is being asked “simply to presume Israeli violations of foreign law, to accept, as given, manifestly biased and erroneous claims directed solely against Israel. “Although the consent of the parties is required for the ICJ to take into account the advice According to their views, Israel protested by saying that it had “consented to a judicial settlement of its dispute with the Palestinian side. “
A handful of countries (including the United States, Canada, the United Kingdom, Fiji, Hungary, Italy, and Zambia) have sided with Israel. Only Fiji maintained that the profession is legal. The U. S. has argued that a profession cannot be legal. or illegal; rather, it is governed exclusively by foreign humanitarian law, which deals only with the acts of the occupying Power and does not address the legality of the profession itself.
“The court does not conclude that Israel is legally obligated to withdraw without delay and unconditionally from occupied territory,” said Richard Visek of the U. S. State Department, urging the court to take into account Israel’s “legitimate security needs. “Visek defended Israel at the ICJ a day after the U. S. veto of a not-so-easy Security Council solution: an early ceasefire in Gaza for the fourth time.
“The current genocide in Gaza is the result of decades of impunity and inaction. Ending Israel’s impunity is a moral, political and legal imperative,” Palestinian Foreign Minister Riyad al-Maliki told the court. “Successive Israeli governments have given Palestinians other people There are only 3 options: displacement, enslavement or death; They are the choices, ethnic cleansing, apartheid or genocide.
“Israel restricts each and every facet of Palestinian life, from birth to death, resulting in blatant human rights violations and a blatant formula of repression and persecution,” al-Maliki said. Through indiscriminate killings, abstract executions, mass arbitrary detentions, torture, forced displacement, settler violence, restrictions on movement and blockades, Israel is subjecting Palestinians to inhumane living situations and unspeakable human indignities, affecting the fate of each and every man, woman and child under its control. “
Ambassador Assad Shoman of Belize clearly reflects the arguments put forward by the maximum number of countries: “No state reserves the right to systematically violate the rights of another people to self-determination, with the exception of Israel. No state seeks to justify the indefinite profession of the territory of another – with the exception of Israel. No state commits annexation and apartheid with impunity, with the obvious exception of Israel. He said that “Israel will not have to enjoy such blatant impunity. “
Shoman said, “Israel will have to behave like all civilized nations: avoid violating foreign laws and UN resolutions!Respect the right of the rest of the Palestinian people to self-determination. Palestine will have to be free!
“Successive Israeli governments have given the Palestinian people only three options: displacement, enslavement or death; They are the choices, ethnic cleansing, apartheid or genocide.
Several treaties, adding the Charter of the United Nations; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social and Cultural Rights enshrined the right of peoples to self-determination. This right is jus cogens, a peremptory norm and the highest form of foreign law, from which no derogation is permitted.
In its advisory opinion on the wall, the ICJ stated that “the precept of self-determination of peoples has been enshrined in the Charter of the United Nations and reaffirmed through the General Assembly in resolution 2625 (XXV)”. . . according to which “It is the duty of each and every State to refrain from any action by force which deprives the peoples concerned”. . . of their right to self-determination.
Professor Philippe Sands argued, on behalf of Palestine, that the Palestinians’ right to self-determination includes, but is not limited to, “the right to their own lands and natural resources; the right not to suffer demographic manipulation through a third party. “and the right to determine their own political status, economic progress, and future.
“The Palestinians’ permanent right to self-determination means that the Palestinian people and the State of Palestine, Israel, are sovereign over the territory conquered through Israel in 1967,” said Ralph Wilde of the League of Arab States. Jerusalem and the rest of the West Bank, claiming to be “exclusive sovereign authority” there, “constitutes a complete rejection of Palestinian self-determination as a legal right, as it completely empties the law of any territorial content,” Wilde added.
Israel’s 2018 Basic Law: Israel as the Nation-State of the Jewish People states that “the right to national self-determination in the State of Israel belongs to the Jewish people. “Palestinians are excluded from the right to self-determination under this law. .
The right to self-determination “exists and exists just and exclusively because other Palestinians have the right to it. It does not have the agreement of others for its realization. It’s a right,” Wilde said.
This is a peremptory rule of foreign law according to which territory must 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. Since then, Israel has occupied those Palestinian territories.
The U. S. State Department’s Visek told the ICJ that Israel was protecting itself from the 1967 war, but it was Israel that started the war. Rossa Fanning, Ireland’s attorney general, called the war a “launched war” and therefore an act of aggression. Wilde noted that Israel “pretended to be acting in self-defense, expecting an attack that would not be imminent without delay,” but “even assuming, arguing, its claim of a feared attack, states cannot legally use force in a context of expected self-defense that is not imminent without delay. ” defense. “Article 51 of the Charter of the United Nations prohibits a State from using military force unless it is in self-defence following an armed attack by some other State.
Moreover, in its opinion on the Wall, the ICJ established the non-applicability of the “self-defense” provided for in Article 51 in the scenario between Israel and the Occupied Palestinian Territory. According to the court, an occupying force invokes self-defence when threats emanate from within the occupied territory.
Israel says it has not occupied the Gaza Strip since 2005, when it withdrew its military forces and settlements. But it continues to exert its army over Gaza through uninterrupted military operations in and against Gaza. It also exercises administrative activities over Gaza through the exclusive regulation of all movements of goods and persons, the entry of the civilian population, and the fiscal and taxation system. In addition, Israel maintains Gaza’s borders, air and sea space, electricity, water, sewage and telecommunications systems non-stop.
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 is an integral component of the territory occupied in 1967. “
Palestinians have the right to use force to resist Israel’s illegal profession. The General Assembly has continuously reaffirmed “the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial domination, apartheid and foreign profession in all possible respects”. it means adding the armed struggle. “
René Lefeber of the Netherlands told the court that self-determination is a “permanent, continuous, universal and inalienable right of an obligatory nature. “If this right is denied through Israel, Lefeber said, Palestinians living under colonial rule, apartheid or foreign profession have the right to liberate themselves “by all means at their disposal, adding armed struggle . . . in accordance with foreign law. “
Israel maintains a formula of apartheid in the Occupied Palestinian Territory, as demonstrated by Amnesty International, Human Rights Watch and the Israeli human rights organization B’Tselem. Vusimuzi Madonsela, South Africa’s ambassador to the Netherlands, called Israel’s apartheid formula “an even more excessive apartheid formula. “form of institutionalized apartheid opposed to blacks in my country. “
In the West Bank, Israel retains its separation wall, segregated roads, checkpoints, and restrictive permit requirements. While Israelis are subject to a civilian legal system, Palestinians are controlled through a military system. They may be detained indefinitely or with due process in administrative detention. and can be convicted on the basis of secret evidence.
“All members of the UN are obliged by law to end the Israeli presence in Palestinian territory. “
“By employing a set of population tools and inhumane acts tantamount to the pesky bureaucracy of racial discrimination, Israel restricts every facet of Palestinian life, from birth to death, resulting in blatant human rights violations and a blatant formula of repression and persecution,” Namira Negm, legal adviser to the African Union and a member of the Palestinian delegation, he told the ICJ.
The Rome Statute of the International Criminal Court considers apartheid a crime against humanity. The prohibition of apartheid is a peremptory rule of law.
Apartheid “goes hand in hand” with Israel’s violation of the Palestinians’ right to self-determination, Belize’s Philippa Webb argued before the tribunal. “It is about realizing the right of another people to self-determination within an ‘institutionalized regime of racial oppression and discrimination. ‘”The dehumanizing nature of apartheid removes the equality, identity, and dignity that are at the core of self-determination.
More than 700,000 Israeli settlers (10 percent of Israel’s roughly 7 million inhabitants) have been moved to the occupied Palestinian territories, “terrorizing and continuously displacing Palestinians from more of their territory and participating in pogroms against them,” Belize’s Shoman said. . Declared.
This is a “covert form of annexation,” said Irishman Fanning. “The prohibition on acquiring territory by force is firmly rooted in standard foreign law. The use of force to occupy and such profession for the purpose of territorial acquisition or annexation of occupied territory by force in whole or in part is illegal.
Israel’s policy of settling its civilians in the occupied Palestinian territories and displacing the local population violates foreign humanitarian law, as governed by the ICJ. Article 49 of the Fourth Geneva Convention states: “The occupying power shall deport or transfer any component of its own civilian population. “population to the territory it occupies. “
“Israel will have to dismantle the physical, legal and political regime of discrimination and oppression. . . evacuate Israeli settlers from the Palestinian territories, allow Palestinians to return to their country and property, and lift the siege and blockade of Gaza,” the government of Belize said. Webb told the ICJ: “These consequences, taken together, mean that Israel will have to withdraw immediately, unconditionally and absolutely from all Palestinian territory. “
Wilde, of the League of Arab States, said Israel’s moves constitute a “multifaceted existential illegality” that means the profession will have to end. “Israel will have to relinquish its claim to sovereignty over Palestinian territory; All settlers will have to be expelled. This is mandatory to put an end to illegality, to satisfy the positive legal responsibility to allow for early Palestinian self-rule, and because Israel has no legal right to exercise its authority,” he said. If the profession continues, Wilde added, “everything Israel does in the Palestinian territory lacks a valid foreign legal basis. . . Israel has no valid authority to do anything, and everything it does is illegal. “
Pieter Andreas Stemmet, speaking on behalf of South Africa, said that Israel will have to “dismantle the colonial apartheid regime against the Palestinian people, repealing all legislative measures taken to annex Palestinian lands and discriminate against the Palestinian people, allowing for the full restitution of Palestinian property and for the Palestinian people’s right to self-determination to finally be realized. “
The right to self-determination was erga omnes, that is, it was a duty of all and all States had a legal responsibility to uphold it.
Professor Sands told the court that UN member states will have to terminate the Israeli profession without delay in order to protect the right to self-determination. “No help. Unaided. No complicity. No contribution to forced actions. No money, no guns. “”All members of the UN are required by law to end the Israeli presence in Palestinian territory. “
While Israel has a shameful record of violations of Security Council and General Assembly resolutions, those bodies “should adopt the additional measures and binding foreign legitimacy equipment stipulated in the Charter that are obligatory to terminate the illegal profession without delay and take the mandatory measures to ensure the implementation of its applicable resolutions without further delay,” supported Ammar Al Arsan on behalf of the Syrian Arab Republic, whose Golan Heights have been occupied through Israel since 1967.
Israel claims that the profession can only end after a negotiated settlement. But as Mohamed Helal of the African Union pointed out, “To make the end of the profession conditional on a negotiated settlement is to make the profession permanent, given that the occupying force – Israel – refuses to negotiate on the basis of the two-state solution and has declared its willingness never to settle for the creation of a Palestinian state.
Moreover, Wilde said, “Israel cannot legally ask for concessions on Palestinian rights as a price to pay to remove obstacles to Palestinian freedom. “The right to self-determination is not and can never be a matter of negotiation. “
The ICJ will most likely issue its advisory opinion in about six months.
Marjorie Cohn is Professor Emerita at Thomas Jefferson Law School, President of the National Lawyers Guild, and a member of the National Advisory Forums of Assange Defense and Veterans For Peace, as well as the Board of Directors of the International Democratic Lawyers Association. he is the founding dean of the People’s Academy of International Law and the U. S. representative on the Continental Advisory Council of the Association of American Jurists. His books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.