This week Al-Haq submitted a file, including a legal position paper and publications, to the International Court of Justice (ICJ) on its position concerning key arguments pertaining to the forthcoming advisory opinion on the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory (OPT), including East Jerusalem.
On 30 December 2022, the United Nations (UN) General Assembly adopted resolution 77/247 requesting an advisory opinion from the ICJ on the question of Palestine. The request asked the Court to provide a legal opinion on two specific questions, taking into account “the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant Security Council, General Assembly and Human Rights Council resolutions, and the Advisory Opinion of the Court of 9 July 2004”. The two questions are:
(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 referred to in paragraph 18 (a) above 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 ICJ has set 25 July 2023 as the deadline for filing all written submissions. The Court has also set 25 October 2023 as the deadline by which responses to these written submissions may be filed. All Member States of the UN may participate in this advisory procedure by submitting written statements and attending the oral hearings. In addition, according to the ICJ’s Practice Direction XII, non-governmental organizations (NGOs) may also, on their own initiative, submit a written statement and documents in an advisory opinion case on a rolling basis.
Although NGOs submission are not considered part of the 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 in the case in the same manner as publications in the public domain.” Moreover, NGOs’ submissions are placed in a designated location at the seat of the Court, the Peace Palace, where all “States as well as intergovernmental organizations presenting written or oral statements under Article 66 of the Statute will be informed as to the location where statements and/or documents submitted by international non-governmental organizations may be consulted.”
Al-Haq invites all States and international organisations to consult its statement and publications and consider the arguments therein while engaging in the proceedings, including in their responses to any of the written submissions and/or during the oral proceedings. The current UN General Assembly’s request for an advisory opinion from the ICJ includes at least five essential substantive legal issues that States may wish to address.
Al-Haq’s statement provides an overview of the possible arguments on these critical legal issues. It focuses on five main legal arguments that the court should consider, which can be summarised as follows:
The Right to Self-Determination
Israel’s occupation of the Palestinian territory breaches the right to external self-determination of the Palestinian people, which includes the exercise of the right of the Palestinian people to an independent State. The special status of the right of the Palestinian people to external self-determination was recognised under Article 22 of the League of Nations Charter which classified Palestine as a Class A mandate, whose “existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.” As the International Court of Justice outlined in the Namibia advisory opinion, the “ultimate objective” of the Mandate as a sacred trust was the “self-determination and independence of the peoples concerned.” Taking the precedent as established in the Namibia advisory opinion, which similarly examines the legality of the subsequent occupation of a Mandate territory, the ICJ concluded, “that the continued presence of South Africa in Namibia is illegal and contrary to the principles of the Charter”.
The Inherent Illegality of the Occupation - Aggression
Israel’s belligerent occupation has been illegal since the outset in 1967 as an occupation arising from an unlawful act of aggression, prohibited under Article 2(4) of the UN Charter. Israel’s use of force against Egypt, in the absence of an armed attack, constituted a prohibited use of force amounting to an act of aggression. For example, at the UN General Assembly a number of States, including Cyprus and the Soviet Union concluded that there was “no evidence of Arab armed attack or invasion of the territory of Israel”. Likewise, Israel’s Ministry of Foreign Affairs recalls that Israel pre-emptively used force against Egypt, in the absence of an armed attack, stating: “Invoking its inherent right of self-defence, Israel pre-empted the inevitable attack, striking Egypt’s air force while its planes were still on the ground”. The subsequent establishment of a military administration in the Palestinian territory is accordingly a continued unlawful use of force and an act of aggression. Under the international law governing the use of force, the occupation is illegal jus ad bellum.
Israel’s Prolonged Occupation – An Ongoing Unlawful Use of Force
Even assuming for argument's sake, that Israel’s use of force in 1967 amounted to a legitimate use of force in self-defence, the continuing belligerent occupation of the Palestinian territory breaches the principles of proportionality and necessity under Article 51 of the UN Charter. The belligerent occupation on this basis amounts to unlawful use of force ad bellum and an act of aggression. Israel’s breach of peremptory norms of international law provides clear evidence of a breach of necessity and proportionality. The ongoing military control that Israel exercises over the West Bank and Gaza when understood as defensive, is not a response to actual or threatened attacks. Rather, it is preventive or pre-emptive self-defence, i.e., the use of force to prevent the emergence of a threat, either entirely or largely. Another element is to understand the occupation as a mechanism to prevent the existence of another fully autonomous Arab state on its borders, out of a generally defined interest against that state. Moreover, the use of force in the West Bank is sometimes explained as self-defence to protect settlements and settlers. The argument provides that self-defence is an ongoing response to actual/immediate attacks and for long-term prevention and deterrence of emerging threats. Pre-emptive or preventive self-defence is not a valid basis under international law for the use of force in self-defence. Therefore, occupation generally cannot be legally justified on this basis. The necessary actual or imminent threat of imminent armed attack that meets the relevant test is lacking, or there is such a threat, but a disproportionate relationship between the occupation and that threat.
Acquisition of Territory by Force – The Prohibition of Annexation and Settlements
Israel’s conduct since the beginning of the occupation and until today confirms that it intends to make its occupation permanent, i.e. the objective is the illegal annexation of the territory it occupies. The de facto annexation of parts of OPT finds expression in an ongoing, step-by-step process that involves the implementation of measures and actions on the ground that demonstrate the intention of Israel, the Occupying Power, to maintain a permanent presence and unlawfully claim sovereignty over the occupied territory or parts thereof, including by the large scale, infrastructure and location of settlements aimed at maintaining them, controlling resources and creating territorial continuity between them and Israel. Most recently, the guiding principles and coalition agreements of the new Israeli government sworn in on 29 December 2022, in which it explicitly declares that “the Jewish people have an exclusive and unquestionable right to all areas of the Land of Israel” and pledge to “promote and develop settlements in all parts of the Land of Israel – in the Galilee, the Negev, the Golan [unlawfully annexed], Judea and Samaria [occupied West Bank]”; and the transfer of the administrative powers of the occupation to the Israeli government and the extension of direct civil legal authority over the settlements, which amounts to de jure annexation
Discriminatory Legislations and Measures – Apartheid
Israel has strategically fragmented the Palestinian people into at least four separate geographic, legal, political, and administrative domains as a tool to impose and maintain apartheid, comprising: Palestinians with Israeli citizenship; Palestinians of Jerusalem with a precarious “residency” status; Palestinians in the rest of the West Bank and Gaza living under military occupation; Palestinian refugees and exiles denied the right to return to their homes, lands, and properties. The Israeli apartheid strategic fragmentation ensures that the Palestinian people cannot meet, group, live together, or exercise any collective rights, particularly their right to self-determination and permanent sovereignty. Israel’s actions are not random and isolated, but part of a widespread and oppressive regime that is institutionalized and systematic. This racial segregation and discrimination have been deemed tantamount to apartheid after extensive factual and legal scrutiny by UN special procedures and by leading Palestinian, Israeli, and international human rights organizations. Apartheid is most evident in the occupied Palestinian territory, including Jerusalem, where illegally present settlers benefit from extensive privileges to the detriment of the fundamental rights of the Palestinian people. Apartheid is expressed, among other things, in the dual and discriminatory legal system and in discriminatory land-use planning and zoning, as well as in the concerted efforts of occupation forces and settlers to intimidate and oppress the Palestinian people. We urge that the ICJ examines the racist discriminatory founding laws in the State of Israel, which established the regime of apartheid, which continued after 1967 in the occupied Palestinian territory, and which continues to discriminate against the Palestinian people as a whole.
In conclusion, the Israeli occupation is illegal at the outset and constitutes a form of aggression. The illegality of Israel’s occupation rests in the first instance on the jus ad bellum violation that brought it into the occupation. As a result of that violation, the occupation became unlawful the day it began, as there was no imminent threat that would justify Israel’s use of force.
Photo by Activestills Collective.