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WORLD COURT HEARING ON LEGALITY OF ISRAELI OCCUPATION ENDS FOLLOWING
WEEK OF TESTIMONY  
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David Kattenburg
February 26, 2024
Mondoweiss
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_ Over 50 nations presented testimony to the ICJ on the legality of
the Israeli occupation, with the majority offering stirring arguments
for Israeli accountability and justice for the Palestinians. An
Advisory Opinion is expected sometime this summer. _

Hon. Yvonne Dausab, Minister of Justice of Namibia, joined
representatives of over 50 nations in presenting testimony to the
International Court of Justice on the legality of the Israeli
occupation. , International Court of Justice

 

Israel and its allies moved heaven and Earth to prevent a legal debate
over its military occupation of the West Bank, Gaza, and East
Jerusalem from happening. This past week in The Hague, the debate
finally took place. 

On Monday, February 19, in response to a late December request
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from the UN General Assembly for an authoritative opinion, the UN’s
supreme judicial body convened oral hearings
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on the “legal consequences” arising from Israeli “policies and
practices” over the course of its 56-year belligerent occupation of
the Palestinian territories, including East Jerusalem. 

In other words, on the legality of Israel’s occupation and what UN
member states must do to hold Israel accountable under international
law.

The International Court of Justice (ICJ) hearings wrapped up late this
afternoon, Netherlands-time.

Enjoined by the court’s Lebanese President Nawaf Salam to limit
their comments to thirty minutes, diplomats and attorneys from fifty
nations and three organizations stood before the ICJ’s 15 judges,
laying out facts and arguments.

Many got emotional. 

“Exceptional moral principles for humanity” are at stake,
Bangladeshi ambassador Riaz Hamidullah declared. “Palestinians are
not an expendable people.”

The Palestinian people had a right to independence in 1948, like all
other League of Nations Mandate territories, Belizean Ambassador Assad
Shoman told the court in a sharp, incisively voiced statement.

“No state reserves to itself the right to systematically violate the
rights of a people to self-determination … _except_ Israel,”
Shoman said. “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 …
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!”

[Assad Shoman, Ambassador, Special Envoy of the Prime Minister of
Belize responsible for sovereignty matters, addresses the second day
of the hearings at the International Court of Justice for an advisory
opinion in respect of the Legal Consequences arising from the Policies
and Practices of Israel in the Occupied Palestinian Territory,
including East Jerusalem. (Photo: International Court of Justice)]

Assad Shoman, Ambassador and Special Envoy of the Prime Minister of
Belize responsible for sovereignty matters, addresses the second day
of the International Court of Justice hearings. (Photo: International
Court of Justice)

South Africa seconded that sentiment.

“We as South Africans sense, see, hear and feel to our core the
inhumane, discriminatory policies and practices of the Israeli regime
as an even more extreme form of the apartheid that was
institutionalized against black people in my country,” Vusimuzi
Madonsela, South African ambassador to the Netherlands, told the
court.”

“[No] country is above the law,” declared Indonesia’s Foreign
Minister, Retno Marsudi. “Indonesia believes that this legal motion
is also a motion of global conscience. It should not be another …
call to go unheeded, ignored blatantly by Israel. Never again means
never again.”

Describing Israel’s wrongful acts, Palestinian UN Ambassador Riyad
Mansour and Kuwaiti Ali Ahmad Ebraheem Al-Dafri began crying. Al-Dafri
struggled to regain composure, apologizing to the court. 

Many turned to history: the 1917 Balfour Declaration; the ‘sacred
trust obligations’ embodied in Article 22 of the 1919 Covenant of
the League of Nations; decolonization; the start of the British
Mandate in 1922; the 1947 partition agreement; the _Nakba_; the 1967
Six-Day War.

Pondering Israel’s assault on Gaza, Algerian law professor Ahmed
Laraba channeled Roman statesman Cato the Elder — “obsessed by
Carthage, whose leitmotif was the term ‘_Carthago delenda est’_,
as we can say today that ‘_Gaza destructum est’_.”

With a few exceptions, Israel’s allies seem to have accepted the
inevitability of an ICJ Advisory Opinion and are now in damage
control.

U.S. State Department attorney Richard Visek urged the court to issue
the narrowest opinion possible, focusing on the peace process, in
deference to American efforts at the UN Security Council.

[Mr Richard C. Visek, Acting Legal Adviser to the United States
Department of State addresses the ICJ on the third day of the
hearings. (Photo: International Court of Justice)]

Mr Richard C. Visek, Acting Legal Adviser to the United States
Department of State addresses the ICJ on the third day of the
hearings. (Photo: International Court of Justice)

France, Norway, and Luxembourg called for stricter justice. So did
Irish Foreign Minister Rossa Fanning, in a cogent, precisely phrased
presentation that riveted the court’s justices — eyeglasses in
hand, heads cocked, chins on palms.

“Neither the duration of the occupation nor the scale and extent of
[Israel’s] settlement activity is, in Ireland’s view, justified or
permitted by the law regulating the use of force in self-defense,”
Fanning told the court, suggesting that Israel’s occupation is
arguably illegal, and certainly counterproductive.

“[If] the security of one people can only be achieved by the
occupation over so many decades of the territory of another people,
one has to wonder whether there can be any military solution to the
problem that it purports to address,” Fanning said.

Faithful to the Netherlands’ reputation as the cradle of modern
international law, Dutch legal advisor René Lefeber spent his
allotted half-hour expounding on the international legal canon,
without uttering Israel or Palestine’s names once.

High crimes

Israel’s breaches of international law are extensive and egregious,
the UN top court was told, in six days of oral pleadings and 57
written statements filed by UN member states and three organizations
– the League of Arab States, the Organization of Islamic
Cooperation, and the African Union.

Topping the list of Israel’s allegedly “wrongful acts”: the
acquisition of Palestinian territory by force; denial of the right of
the Palestinian people to self-determination; imposition of alien
subjugation and rule, racial discrimination and apartheid, and – the
crime of crimes — genocide.

Hierarchically superior in the legal canon, the norms prohibiting
these acts have been codified as ‘customary’ (universal and
binding) by the UN-affiliated International Law Commission. 

Many are ‘peremptory’ (_jus cogens_) norms, with no derogation. In
lay parlance, obligatory. 

Crucially, peremptory norms ‘give rise to obligations owed to the
international community as a whole,’ _erga omnes_. All states have
an interest in ensuring respect for them. States are obliged not to
recognize situations arising from breaches of these norms, to withhold
aid or assistance, and to cooperate to bring grave breaches to an
end.  

The most grievous of breaches attributed to Israel are genocide and
apartheid, the latter classed as a ‘crime against humanity’ under
the Rome Statute of the International Criminal Court.

British barrister Philippa Webb, a member of Belize’s legal team,
focused on Israeli apartheid.

“[In] the West Bank, there is the separation wall, restrictive
permit requirements, checkpoints, and segregated roads,” Webb told
the court. “Gaza is under siege … Millions of Palestinians are
confined to ever smaller strips of land, the longest and most complete
siege of the greatest number in modern history. The whole of Gaza has
become an impoverished, desperate ghetto.”

Laws of occupation breached

[Mr Rossa Fanning, SC, Attorney General of Ireland presenting
testimony before the International Court of Justice. (Photo:
International Court of Justice)]

Mr Rossa Fanning, SC, Attorney General of Ireland, presenting
testimony before the International Court of Justice. (Photo:
International Court of Justice)

Lower on the hierarchy of wrongful Israeli acts presented to the ICJ
in Advisory Opinion hearings that concluded today – numerous
breaches of the laws of war and occupation, codified in the 1949
Fourth Geneva Convention. Several of these are considered “grave
breaches” under Geneva IV’s Additional Protocol and war crimes
under the Rome Statute.

These include collective punishment; confiscation and destruction of
land; the appropriation of natural resources; movement restrictions;
pillage; unlawful killing; targeting of hospitals, educational
institutions, and journalists; forcible transfer, and imprisonment of
Palestinians inside the Green Line.

The gravest of Israeli breaches of the laws of occupation, its
settlement enterprise – clearly aimed at making an independent
Palestinian state impossible, numerous states told the court this
week.

“The defining feature of Israel’s occupation of Palestinian
territory in the West Bank, including East Jerusalem, has been
continuous settlement activity,” Irish Attorney General Rossa
Fanning told the court.

“By transferring parts of its own civilian population into the OPT,
Israel has violated Article 49(6) of the Fourth Geneva Convention,”
Fanning said. 

Israel’s settlement enterprise, accompanied by the application of
domestic Israeli laws and administration in the occupied Palestinian
territory, constitute a “disguised form of annexation,” Fanning
told the judges.

Annexation amounts to the acquisition of territory by force – among
the gravest of wrongful acts, Fanning said, thus rendering the
occupation illegal.    

Israel’s occupation of the West Bank and Gaza, “in the war it
launched” against Egypt and Jordan (therefore an act of aggression),
was illegal from the start, Ralph Wilde, legal counsellor for the
League of Arab States told the court. Even if the war was a lawful act
of self-defense, Wilde said, its justification “ended after six
days.” 

A half-century later, Israel’s occupation constitutes a continuing
unlawful use of force, said Wilde.

Predictably, U.S. State Department attorney Richard Visek disagreed.
Israel was defending itself in June 1967, Visek suggested.
Furthermore, the laws of belligerent occupation say nothing about its
duration. The legal status of occupation is based solely on how or why
a country invades territory (_jus ad bellum_), rather than how it
conducts that occupation (_jus in bello_), or how long occupation
lasts, Visek said. 

“On that approach,” another member of Belize’s legal team, Ben
Juratowitch, riposted, “an occupying power that has lawfully
established an occupation would be unrestrained by law as to how long
that occupation lasts … That would of course mean that an occupation
could lawfully become indefinite. And that must be incorrect.”

[Members of the Belize delegation at the International Court of
Justice. (Photo: International Court of Justice)]

Members of the Belize delegation at the International Court of
Justice. (Photo: International Court of Justice)

Legal consequences

Having outlined wrongful Israeli policies, practices, and acts
rendering its occupation illegal, lawyers told the court about the
legal consequences Israel must face.

“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,”
Belizean team member Philippa Webb told the court.

“These consequences, taken collectively, mean that Israel must
immediately, unconditionally, and totally withdraw from the entire
Palestinian territory,” Webb said.

Belize’s remedy was seconded by almost all of the presentations
delivered to the court this past week.

Israel’s allies push court to not render an opinion

Having concluded oral sessions, the International Court of Justice can
either accede to the General Assembly’s request for an Advisory
Opinion or — exercising its discretionary power — it can decline
to do so, something it has never done.

The U.S., Canada, UK, and a handful of other states – among these,
Zambia, represented this morning by its lavishly wigged Solicitor
General, and Fiji, clearly a friend of Israel, who referred to the
General Assembly’s Advisory Opinion request as a “distinctly
one-sided” “legal maneuver” to side-step the ‘Peace
Process’, assigning legal consequences on just one of the parties to
the ‘conflict’ – are hoping for a first.

The court has “compelling reasons” not to issue an Advisory
Opinion, they argue. Israel has not consented to ICJ jurisdiction over
what amounts to a ‘bilateral dispute,’ best resolved through
negotiation between the two parties; international law would get in
the way; ‘seized’ by the situation since 1967, the Security
Council’s authority in these matters is superior to the General
Assembly’s; an Advisory Opinion would complicate the Council’s
pursuit of its ‘Land for Peace’ ‘framework,’ based on the Oslo
Accords. 

If the court does issue an opinion about Israel’s occupation, the
U.S., Britain, Zambia, and Fiji argued, it should refrain from delving
into the exceptionally complex root causes of the situation, 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.

[Members of the delegation of the United States of America to the
International Court of Justice public hearings on the Legal
Consequences arising from the Policies and Practices of Israel in the
Occupied Palestinian Territory, including East Jerusalem. (Photo:
International Court of Justice)]

Members of the United States delegation to the International Court of
Justice. (Photo: International Court of Justice)

Others dismissed these arguments as “fallacious” (Kuwait),
“perverse” (Lebanon), “fiction” (Saudi Arabia), “myth”
(Organization of Islamic Cooperation),” and an “affront to the
rule of law” (League of Arab States).

“These [reasons] have been constantly discarded by the Court,”
Algerian jurist Ahmed Laraba added, quoting directly from several of
the court’s past Advisory Opinions. 

An ICJ Advisory Opinion on Israel’s prolonged occupation would
actually _facilitate_ a negotiated agreement, some argued.

“A clear legal characterization of the nature of Israel’s regime
over the Palestinian people can only assist in remedying the ongoing
delay in achieving a just settlement,” South Africa’s ambassador
to the Netherlands, Vusimuzi Madonsela, told the court.

Netherlands legal adviser René Lefeber told the court that the
General Assembly’s Advisory Opinion request “should be regarded in
a much broader frame of reference than a bilateral dispute.”

Self-determination, Lefeber reminded the judges, is a “permanent,
continuing, universal and inalienable right with a peremptory
character.” If that right is denied, he added – remarkably —
people 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.” 

Consequences of a powerful advisory opinion

Having failed to stave off ICJ hearings, Israel is now up against the
wall. Unlike the court’s January 26 preliminary measures order in
response to South Africa’s genocide application, Advisory Opinions
are not binding.

Still, they carry enormous authority and are hard to ignore. Israel
certainly will.

But, the fallout from a broadly-framed ICJ Advisory Opinion, sometime
this summer, promises to be huge.

It will “help set the stage, politically, for what is regarded as
legitimate in the international community, at the halls of the United
Nations, in capitals of states around the world, when they’re
dealing with the question of Palestine,” Canadian international law
scholar and State of Palestine legal advisor Ardi Imseis told
_Mondoweiss_, on the first day of hearings. 

“Most particularly, because the occupation is unlawful and an
internationally wrongful act, third states would not be allowed to
continue to engage the State of Israel, the occupying power, in
relation to the occupied Palestinian territory, in the same way that
they have done over the past 56 years,” Imseis said.

“That means the end of all trade in arms; that means the end of all
trade in settlement products.” 

“[A] serious breach of a peremptory norm entitles states other than
the injured state to take countermeasures against the responsible
state as a legal consequence of that breach,” legal counsel for the
Dutch Foreign Ministry, René Lefeber, confirmed to the ICJ last week.
The Netherlands did this in late January, cutting off the provision of
F-35 spare parts to Israel
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The U.S. government will also be under the gun. Recent U.S. sanctions
against violent settlers, and Antony Blinken’s confirmation that
Israeli settlements are “inconsistent”
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with international law, suggest increasing willingness to hold Israel
accountable for its breaches of peremptory norms, as required under
international law.

Strategic lawsuits promise to proliferate.

In response to the ICJ’s January 26 provisional measures order
against Israel, U.S. District Court Judge Jeffrey White
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cited “undisputed evidence” that “the ongoing military siege on
Gaza is intended to eradicate a whole people and therefore plausibly
falls within the international prohibition against genocide.”

Judge White “implored” U.S. officials “to examine the results of
their unflagging support” for Israel. 

A decisive Advisory Opinion is certain to put wind in the BDS
movement’s sails.

This past November, shortly after the start of Israel’s assault on
Gaza, the Norwegian Pension Fund
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completed the withdrawal of its half-billion dollar investment in
Israel Bonds.

Last week, four Norwegian
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universities reportedly terminated ties with Israeli counterparts.

And, as the ICJ drafts its Advisory Opinion on the legality of
Israel’s occupation, it will also be building the factual basis for
its genocide ruling two or three years down the road.

“I’m hopeful,” Giulia Pinzauti told _Mondoweiss_, in a café
down the street from the Peace Palace. 

“Everybody’s talking about genocide, as if that’s the only
issue,” says Pinzauti. “Clearly, there’s a much bigger problem
concerning the legality of the occupation and Israel’s
discriminatory practices in the occupied territories. So that’s why
I think this Advisory Opinion is extremely important … a good setup
for hopefully the merits of the case concerning the Genocide
Convention because it puts things in a much broader context.”

In the meantime, says Pinzauti — who teaches a course about the ICJ
at Leiden University – the ICJ’s upcoming Advisory Opinion on the
legal consequences of Israel’s prolonged occupation promises to
transform the political landscape.

“It’s difficult for judicial decisions to change things on the
ground, and that’s where impacts are really needed,” Pinzauti told
_Mondoweiss_. “I’m hoping that judicial decisions or
pronouncements or advisory opinions will help shape state policies in
a way that can make effect on the ground where it’s really, really
needed … I think it can provide the foundations for a just and
lasting peace.”

DAVID KATTENBURG
David Kattenburg is a university science instructor and radio/web
journalist based in Breda, North Brabant, the Netherlands.

* International Court of Justice; Israeli Occupation; Palestinians;
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