Occupied Palestinian territories: first days of hearings at the ICJ

In what is a first in the history of the International Court of Justice (ICJ), 52 States and three international organisations, the Organisation of Islamic Cooperation (OIC), the African Union (AU) and the Arab League, submitted written comments as well as oral presentations to a case.

The procedure concerns an advisory opinion requested from the ICJ in December 2022, before the current conflict, by the United Nations General Assembly on the “legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.”

Questions asked by the UN General Assembly

The two specific questions posed by the UN General Assembly to the ICJ are as follows:

“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?”

“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?”

This recap provides a non-exhaustive overview of the points of view of the different speakers during the first three days of hearings (February 19-21). The remaining speakers will be presented after the hearings close on 26 February.

Palestine’s plea

Palestine presented its arguments for three hours on 19 February. Riyad al-Maliki, foreign minister of the Palestinian National Authority, began with these words: “I stand before you as 2,3 million Palestinians in Gaza, half of them children, are besieged and bombed, killed and maimed, starved and displaced; as more than 3,5 million Palestinians in the West Bank including East Jerusalem are subjected to colonisation of their territory and the racist violence that enables it, as 1,7 million Palestinians in Israel are treated as second class citizens and unwelcomed intruders on their ancestral land, as 7 million Palestinian refugees continue to be denied their right to return to their land and home.”

HE Dr Riyad Mansour, Permanent Representative of the State of Palestine to the United Nations. © UN Photo/ICJ-CIJ/Frank van Beek.
HE Dr Riyad Mansour, Permanent Representative of the State of Palestine to the United Nations. © UN Photo/ICJ-CIJ/Frank van Beek.

Riyad al-Maliki called to “put an end to Israel’s impunity, a moral, political and legal imperative. Successive governments in Israel have left only three choices to Palestinians: displacement, subjugation or death. Here are the choices: ethnic cleansing, apartheid or genocide. But our people are here to stay (…) and they will not forsake their rights.”

The jurists and diplomats who defended Palestine formed an international team of renowned experts, with law professor Andreas Zimmermann (Germany), Paul S. Reichler (United States), diplomat Namira Negm (Egypt), lawyer Philippe Sands (France, Great Britain), jurist Alain Pellet (France) and Riyad Mansour, Permanent Observer of the State of Palestine to the United Nations.

Practices described as “apartheid” by South Africa

South Africa, which filed a complaint with the ICJ in December against Israel for “genocide in Gaza”, a separate case on which the ICJ indicated provisional measures on 26 January, was the first to speak out after Palestine.

After “decades of apartheid settler colonialism”, Vusimuzi Madonsela, South Africa’s ambassador to the Netherlands, declared on 19 February, “a just solution for all who legally qualify to live in historical Palestine would need to be negotiated with the assistance of the international community.”

The diplomat drew a parallel between the situation in Palestine and the struggle of South Africans against apartheid, an “institutionalised regime of discriminatory laws” which today ensures “Israeli-Jewish domination”. He called for the “immediate, unconditional and total withdrawal of Israeli troops” from the occupied territories. 

Many criticisms of Israel

Chile recalled being home to the largest Palestinian community outside the Middle East and a large Jewish community, the third largest in Latin America. Israel “neither regards itself nor behaves as a temporary occupant,” its practices amounting to “annexation,” according to Santiago.

Algeria estimated that Israel “aims a point of no return” in the Occupied Territories, to “discard all possibility of creating a Palestinian state”. Through the voice of law professor Ahmed Laraba, Algiers asked the ICJ to put an end to Israel’s “impunity” as an “oppressor” by reminding it of “a law which is not that of revenge, but justice.”

Saudi Arabia, for its part, criticised Israel for “the dehumanisation” of Palestinians, who are treated as “disposable objects” in Gaza. A situation which shows “how the illegality of the Israeli occupation for over more than five decades can degenerate into the ugliest of consequences”. In addition, Saudi Arabia accuses Israel of “continuing to ignore the provisional measures ordered by the Court” on 26 January as part of the South African complaint for “genocide”. 

“International law cannot be an “à la carte” menu; it must apply equally to all,” said Lana Nusseibeh, Assistant Minister for Political Affairs, Permanent Representative of the United Arab Emirates (UAE) to the United Nations. 

Cuba extended its criticism to the United States and asked the ICJ to take into account American “complicity” in the policies carried out by Israel, including in the supply of weapons to Israel.

The right to self-defence addressed by the Netherlands…

The Netherlands recalled the foundations of the right to self-determination of peoples, as well as the legal framework of the “use of force” and the right to self-defence in the event of an attack.

René J. M. Lefeber, the legal advisor to the Dutch Ministry of Foreign Affairs, recalled that “the occupation of a territory can be legitimate within the framework of the right to self-defence, in response to an armed attack”, even if that -it does not come from a State but from an armed group. 

He also recalled the obligation to respect international humanitarian law and to put an end to its violations, hoping that the ICJ could contribute to bringing peace to the Middle East.

Mr René J. M. Lefeber, Legal Adviser, Ministry of Foreign Affairs of the Kingdom of the Netherlands. © UN Photo/ICJ-CIJ/Frank van Beek.
Mr René J. M. Lefeber, Legal Adviser, Ministry of Foreign Affairs of the Kingdom of the Netherlands. © UN Photo/ICJ-CIJ/Frank van Beek.

…and contested by Egypt

Egypt highlighted the seriousness of the current situation, including in Rafah, where “Israel is continuing its policy of mass forcible expulsion of Palestinians civilians, all while the Security Council repeatedly fail to call for a ceasefire, in callous disregard for Palestinian life.”

Aligned with the Palestinian plea, the Egyptian representative, Jasmine Moussa, Legal Advisor in the Office of the Minister of Foreign Affairs, said: “The Middle-East region yearns for peace and stability, and a just, comprehensive and lasting resolution of the Palestinian-Israeli conflict, based on the principles of international law and the establishment of a viable Palestinian state, on the pre-1967 lines, with East-Jerusalem as its capital.”

Egypt has challenged Israel’s use of the right to self-defence, accusing it of having committed a “war of aggression” in 1967 and then continued “decades of occupation” contrary to international law. “The argument that a State may exercise self-defence against a territory under its own military occupation and effective control is counter-intuitive,” continued Jasmine Moussa. (…) “Israel cannot invoke self-defence to maintain a situation created by its own illegal conduct.”

Ms Jasmine Moussa, Legal Counsellor, Cabinet of the Minister for Foreign Affairs, Ministry of Foreign Affairs of the Arab Republic of Egypt. © UN Photo/ICJ-CIJ/Frank van Beek.
Ms Jasmine Moussa, Legal Counsellor, Cabinet of the Minister for Foreign Affairs, Ministry of Foreign Affairs of the Arab Republic of Egypt. © UN Photo/ICJ-CIJ/Frank van Beek.

France recalls Israel’s “right to defend itself” in accordance with international law.

Returning first to “the very heavy context in which these hearings take place” since the attack carried out by Hamas in Israel on 7 October, Diego Colas, Director of Legal Affairs at the Ministry of Europe and Foreign Affairs, recalled on 21 February in the name of France “the right of Israel to defend itself and its population with the aim of preventing such attacks from happening again. This right must be exercised in strict compliance with international law, and in particular, international humanitarian law.

While Israeli operations and bombings are causing thousands of civilian victims in Gaza, France has clearly, consistently and repeatedly affirmed this demand.”

He added that “respect for international law, in particular international humanitarian law, by all stakeholders, is the only possible horizon of peace.”

“The colonisation policy must stop”, according to France.

France reiterated its condemnation of the colonisation policy accelerated since 2004 by Israel, “which must stop”. On measures aimed at changing the demographic composition of the occupied territories, France “reiterates its condemnation of comments promoting the installation of colonies in Gaza and the transfer of the Palestinian population of Gaza out of this territory”, which would constitute “a very serious violation of international law.

On the Statute of Jerusalem, proclaimed one and indivisible as the capital of the State of Israel by the fundamental law of Israel of 30 July 1980, France mentioned “Security Council resolution 478 of 1980, which recalls that The adoption of this fundamental law does not call into question the application of the 4th Geneva Convention. There is, therefore, no doubt that the unilateral status imposed by Israel on Jerusalem is null and void under international law.” 

In addition, “France considers that it is appropriate to maintain unchanged the historic status quo on the holy places in Jerusalem”. On the question of reparations, “France considers that this obligation extends to all damage done to the Palestinian population” by proceeding with “restitutions and, failing that, compensation”.

Egypt, Bolivia, Colombia, Cuba and Brazil also mention reparations

Bolivia, which broke off its relations with Israel on 1 November 2023, denounced a situation of “apartheid” and “atrocities amounting to the crime of genocide” in Gaza. The country pleaded for “Israel’s reversal of its illegal settlement policy” in the Occupied Territories, with reparations and compensation.

According to Colombia, Israel must cease all occupation and colonisation, but also carry out reparations. “Israel has an obligation to compensate, in accordance with the applicable rules of international law, all legal person having suffered any form of material or immaterial damage as a result of its occupation of the Palestinian territories.” 

Like Egypt, Cuba mentioned the principle of reparations for damage caused to the Palestinians. Brazil, along with Bolivia and Colombia, supported South Africa’s complaint against Israel for “genocide” and also stated the principle of reparations without going into details.

A negotiated two-state solution

Brazil especially insisted on 20 February on the need to move towards a negotiated two-state solution in “One of the most pressing unresolved conflicts on the international agenda since decades”.

From Brazil’s point of view, “the importance of the question and the gravity of the situation were indisputable, even before 7 October 2023. The tragic events of that date and the disproportionate and indiscriminate military operations that followed, however, show clearly that the mere management of the conflict cannot be considered an option. The two-state solution with an economically viable Palestinian State living side by side with Israel is the only way to bring peace and security to the Israelis and the Palestinians.”

The United States is in favour of a political settlement within the framework established by the UN.

Richard C. Visek, Legal Advisor at the American Department of State, began by recalling “the horror of the terrorist attacks of 7 October 2023” and a context marked by “the ongoing conflict between Israel and Hamas, which has had severe, widespread and tragic consequences for Palestinian civilians in Gaza. “ 

He recalled the efforts of the United States to “not only address the current crisis but to get beyond where we have been, namely to advance a political settlement that will lead to a durable peace in the region that includes lasting security for Israeli and Palestinian, and a path to Palestinian statehood.”

The American expert focused his presentation on the fact that stakeholders must return to the framework set by the Security Council and the United Nations General Assembly to resolve the conflict – a two-state solution. He then discussed the role of the ICJ in preserving this framework so as to make a negotiated solution a realistic possibility.

“The occupation must come to an end,” says Russia

“The occupation must come to an end,” declared Vladimir Tarabrin, ambassador of the Russian Federation to the Netherlands, following the lead of many countries. Russia also advocates for the two-state negotiated solution. On 21 February, she highlighted two important points that are important from its perspective: the “persistent denial by Israel to the right of self-determination” and “the colonisation policy pursued by Israel since 1967.”

“This has effectively undermined the prospects of a negotiated solution. (…) The overall number of Israeli settlers in the West Bank, Jerusalem included, is more than 700,000. (…) In 2023, Israel’s settlement activities have gained record-breaking speed: according to the latest report of the UN Secretary-General, in 2023, plans for more than 24,700 housing units were advanced, approved, or tendered. This is more than double 11700 units in 2022, which in itself was a remarkable figure.”

Russia also hopes that the ICJ can contribute to a solution to the conflict by stipulating that both parties “are under the obligation” to resume peace negotiations.




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