World Court hearings about Israel’s occupation of Palestine conclude after six days of submissions

By Annette Gartland on February 27, 2024

The hearings at the International Court of Justice (ICJ) in The Hague about Israel’s occupation of Palestine have concluded after six days of oral submissions.

The State of Palestine, 49 member states of the United Nations and three international organisations – the Arab League, the Organisation of Islamic Cooperation, and the African Union – presented oral statements to the court.

On the sixth day, representatives of Turkey, Zambia, the Arab League, the Organisation of Islamic Cooperation, and the African Union spoke at the first session yesterday (Monday) followed by the representatives of Spain, Fiji, and the Maldives, who made their submissions in the afternoon session.

The hearings are in response to the request by the UN General Assembly 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”.

There were again clear calls for an immediate end to Israel’s occupation of Palestine and appeals for Israel to make reparations.

The Arab League is one of the organisations that has called for an end to the occupation.

“It must be terminated,” law professor Ralph Wilde, speaking on behalf of the league, said. “Israel must renounce all sovereignty claims and all settlements must be removed immediately.”

Also speaking for the Arab League, Abdel Hakim El Rifai said in his submission that Israel’s occupation of Palestine was “the last oppressive, expansionist apartheid settler colonial occupation still standing in the 21st century”.

El Rifai (pictured below) added: “This prolonged occupation is an affront to international justice. The failure to bring it to an end has led to the current horrors perpetrated against the Palestinian people, amounting to genocide.”

Speaking for the African Union, Mohamed Helal said that, since 1967, Israel had exercised “belligerent occupation” over the West Bank, Gaza, and East Jerusalem. Israel’s occupation of the Palestinian territories was unlawful and must be brought to an end, he said.

Helal added: “Determining the legal status of Israel’s occupation of the Palestinian territories is the question of title. Does Israel have title over the West Bank, Gaza and East Jerusalem? The answer is unequivocally no.”

While most representatives presenting their submissions yesterday spoke in favour of the ICJ giving an advisory opinion, Zambia and Fiji added their voices to those of the United Kingdom, the United States, Canada, and Hungary in urging the court to decline the General Assembly’s request.

Canada did not make an oral submission, but says in its written statement that there are “compelling reasons” for the ICJ to decline the General Assembly’s request for an advisory opinion.

Zambia’s Solicitor-General, Marshal Mubambe Muchende, said the question posed to the ICJ required “Solomonic wisdom to obviate rendering an opinion that may exacerbate rather than resolve the complex and nuanced situation [in] which both Palestine and Israel find themselves”.

Muchende said the ICJ should not exercise its jurisdiction to give an advisory opinion about Israel’s occupation of Palestine, but should rather “give deference and sanctity to the bilateral agreements existing between the two states”.

He said that “any recourse to the conflict should not be one that puts the blame squarely on one party, but rather one that advances a negotiated solution, which culminates in a two-state solution”.

Muchende said that, should the ICJ decide to exercise its jurisdiction to render an advisory opinion, that opinion “should encourage and assist the parties to respect the legal commitments, including conducting credible negotiations, and not make it more difficult for them to do so”.

He said Zambia’s support for the Palestinian people’s right to self-determination remained steadfast. “However, it is imperative to approach this issue with a comprehensive and balanced perspective,” he added.

Fiji’s permanent representative to the United Nations, Filipo Tarakinikini, said Fiji had provided several reasons why the ICJ should exercise its judicial discretion not to render an advisory opinion on the questions posed by the General Assembly about Israel’s occupation of Palestine.

Tarakinikini said that the ICJ giving an advisory opinion would have the effect of circumventing the principle that a state is not obliged to allow its disputes to be submitted to judicial settlement without its consent.

Israel said in a written statement sent to the ICJ in July last year that it would not present oral arguments during the hearings. It said that the request for the ICJ’s advisory opinion “perversely seeks to circumvent the lack of Israel’s consent”.

Israel says there are “glaring failings” in the questions brought before the court and a risk of the ICJ proceedings “fundamentally delegitimizing the established legal framework governing the conflict and any prospect of negotiations between Israelis and the Palestinians which, Israel says, remains “the only viable path to peace”.

Muchende said yesterday that the General Assembly’s request was a “legal manoeuvre to circumvent the existing internationally sanctioned and legally binding framework for resolution of the Israel-Palestine dispute”.

Speaking for the Organisation of Islamic Cooperation, Hissein Brahim Taha (pictured below) said he hoped that the ICJ’s advisory opinion would be an opportunity to recall the imperative duty incumbent on Israel to end its occupation of Palestinian territories and to repair all the consequences.

Also speaking for the Organisation of Islamic Cooperation, Monique Chemillier-Gendreau said that the argument that a finding of jurisdiction for the ICJ to give an advisory opinion would in some way bar the way to a negotiated peace was an argument wholly without merit.

The way forward, based on the findings of the ICJ’s opinion “should ensure that the agreement re-establishing the Palestinians in all their rights will respect the fundamental norms, which currently are the target of circumvention”, Chemillier-Gendreau said.

Israel had been occupying Palestine for 66 years and its leaders openly broadcasted their intention to indefinitely pursue this occupation, Chemillier-Gendreau told the ICJ judges.

Referring to suggestions by the US, the UK, and Zambia that there was an applicable legal framework, Ralph Wilde said this was the law as these states would like it to be, “not the law as it is”.

It was a new rule, Wilde said, which was “justifying the occupation until there is a peace agreement meeting Israeli security needs”.

This ‘new rule’ had no basis in United Nations Security Council Resolution 242 (a resolution adopted unanimously by the UN Security Council in 1967, in the aftermath of the Six-Day War), or the Oslo Accord, or any other resolutions or agreement, Wilde said.

The ICJ was being invited to do away with the very operation of some of the fundamental peremptory rules of international law, Wilde told the judges.

“At best, if there is an agreement, this means one that need not be compatible with Palestinian peremptory legal rights, determined only by the acute power imbalance in Israel’s favour,” he said.

“At worst, if there is no agreement, this means that the indefinite continuation of Israeli rule over the Palestinian people in the OPT [Occupied Palestinian Territory] on the basis of racist supremacy and a claim to sovereignty would be lawful.”

Wilde, who is an associate professor at the Faculty of Laws at University College London, said Israel could not lawfully demand concessions on Palestinian rights as the price for ending its impediment to Palestinian freedom.

He told the ICJ judges: “The Palestinian people have been denied the exercise of their legal right to self-determination through the more than century-long, violent, colonial, racist effort to establish a nation state exclusively for the Jewish people in the land of mandatory Palestine.”

Israel’s occupation of Palestine was “existentially illegal” because of its use to actualise purported annexation, Wilde said.

Referring to Israel’s current military action in Gaza, he added: ”This is not a war that began in October 2023. It’s a drastic scaling up of the force exercised there, and in the West Bank, on a continual basis since ’67.”

In East Jerusalem, which Israel had purported to annex, the majority non-Jewish Palestinian residents didn’t have citizenship, whereas Jewish residents, including illegal settlers, were citizens, Wilde told the court.

He ended his submission with a quote from the Palestinian poet, academic, and activist Refaat Alareer, who was killed along with six members of his family in an Israeli bombardment of Gaza in December last year:

“If I must die,
you must live to tell my story …

If I must die
let it bring hope,
let it be a story.”

Mohamed Helal, speaking for the African Union, told the ICJ judges that pronouncements by Israel’s political leaders and Israel’s conduct on the ground reflected an intention to perpetuate the occupation of Palestine through acts that amounted to de jure and de facto annexation of Palestinian territories.

Helal said that, given that Israel refused to negotiate on the basis of a two-state solution and had said it would never accept the establishment of a Palestinian state, to condition the end of Israeli occupation on a negotiated settlement was to make the occupation permanent.

“The historical record is unequivocal,” Helal said. “Israel’s occupation of the Palestinian territories was a result of an act of aggression that commenced on June 5, 1967.”

Also speaking for the African Union, Hajer Gueldich said that Israel’s aggression against Gaza was “nothing but a shameful attempt to create another Nakba”.

Gueldich said that, given the famine affecting them, Palestinian children born miraculously under the rubble of Gaza were living on borrowed time.

Grieving families were surviving without water and without electricity, seeing, day after day, their hopes, their dreams, and their destiny, disappearing forever under the ruins.

“The conscience of humankind will never forget it,” Gueldich told the ICJ judges.

Gueldich said the history of Palestine was a history of dispossession, displacement, and dehumanisation.

“It’s the history of an injustice,” she said. “It’s the tragedy of a people who for over seven decades is systematically subjugated and oppressed by the Israeli colonial project whose aim is to establish total and exclusive control on all of Palestine soil, to deny the Palestinian people its inalienable right to self-determination and deprive it of its right to live freely in its native land.”

Israel’s “ruthless war machine” had ceaselessly devastated the Palestinian population, Gueldich said. Schools, places of worship, homes, and hospitals had been reduced to nothing.

In his submission, Turkey’s Deputy Foreign Minister, Ahmet Yıldız, said that the Israeli-Palestinian conflict did not start on October 7, 2023. The conflict was not about a certain Palestinian faction or group and dated back to an earlier century, he said.

The Israeli-Palestinian conflict could have been settled by now if international law, especially humanitarian and human rights law, had been upheld and the inalienable rights of the Palestinian people had been recognised, Yıldız told the ICJ judges.

“The real obstacle to peace is obvious: the deepening occupation by Israel of the Palestinian territories, including East Jerusalem, and failure to implement the two-state vision: Israel and Palestine living side by side,” he said.

Yıldız told the ICJ judges that the rules-based international system had come to a point of collapse because of injustices that were being inflicted on the Palestinian people for decades.

He described Israel’s occupation of Palestine as “suffocating”. He said Israel’s occupation had not only led to Palestinian people being deprived of their fundamental rights; it had also made them dependent on Israel’s mercy.

“Their properties are demolished,” Yıldız said. “Their land is usurped. Their livelihoods are confiscated.”

Yıldız said Turkey strongly and clearly rejected and condemned all attacks against civilians. “Civilians must be protected at all times and under any circumstances,” he told the ICJ judges.

Yıldız spoke of Israeli actions that had violated the sanctity of holy sites, including the Al-Aqsa Mosque in East Jerusalem.

In 2023, just before October 7, thousand of Israeli extremists and settlers stormed into Al-Aqsa Mosque complex during the Jewish holiday of Sukkot, mainly in response to heinous calls by the Israeli politicians, he said.

Yıldız noted that the overwhelming majority of UN member states had asked for an immediate, unconditional ceasefire in Gaza and delivery of unhindered, sufficient, and sustained humanitarian assistance. However, he said, the UN Security Council had regrettably failed to discharge its duties.

The current trajectory risked a broader regional conflagration as well as inter- communal polarisation, Yıldız said.

“Furthermore, rising threats of Islamophobia, antisemitism, and extremism all around the world must also be taken into consideration,” he told the court.

Amy Sander, representing the Maldives, said that many breaches of international humanitarian law by Israel had been cited before the court, including Israel settlement policy, which was a breach of Article 49 of the Fourth Geneva Convention.

Israel’s policies and practices with respect to water resources constituted a cascade of further violations of the Fourth Geneva Convention and the 1907 Hague regulations, Sander said.

“Notably, Israel’s conduct is a violation of the rules prohibiting destruction of property, which includes water and sanitation infrastructure, in circumstances where it is clearly not absolutely necessary for military operations,” Sander told the court.

“It’s a violation of the prohibition on destruction or removal of objects essential for survival of the civilian population.”

Israel had also violated its obligation to ensure and maintain public health and hygiene in territory it occupied, Sander added.

A raft of horrific diseases sprang directly from the lack of clean water in the occupied territory, with little children particularly vulnerable, she told the court.

Sander spoke of the “tidal wave of suffering” that had been unleashed by Israeli policies and practices with respect to water resources, which, she said, were characterised by “deprivation, denial, discrimination, and destruction”.

Many Palestinians in the Gaza Strip had no access to potable water, she said.

Use of vital ground waters was marred by grossly inequitable allocations between Israelis and Palestinians, Sander said. There had been destruction of vital infrastructure, with Israel demolishing sanitation structures and pipelines.

Sander said the policies and practices of Israel in the Occupied Palestinian Territory violated the prohibition of the acquisition of territory by force.

She noted that an occupying power could not acquire sovereignty over an occupied territory, including by annexation, irrespective of whether it claimed to have acted in self-defence at any point during the occupation.

Israel, Sander said, had annexed all of the occupied Palestinian territory, whether through Israeli law or conduct manifesting a de facto annexation, creating a fait accompli.

Naomi Hart, also representing the Maldives, said Israel was obliged to cease its continuing unlawful acts and this included an obligation to terminate its occupation.

“Secondly, at the same time as terminating its unlawful acts, Israel must provide assurances that it will not repeat them. Thirdly, Israel is obliged to provide comprehensive reparations,” Hart told the ICJ judges.

Hart noted Palestine’s statement on the first day of the hearings that no action by Israel could ever restore the Palestinian people to the situation that would have existed without its violations.

“In that case, Israel’s reparations must include compensation,” Hart said.

Given that compensation would not fully make good the harm caused, Israel must provide just satisfaction in other forms, such as acknowledging its breaches and providing a formal apology, she added.

Emilio Pin Godos from Spain’s foreign ministry spoke about the detention, interrogation, prosecution, and imprisonment of Palestinian children by Israeli occupation forces. This was contrary to Article 37 of the Convention on the Rights of the Child, he told the court.

“Palestinians in the OPTs [Occupied Palestinian Territories] are subject to a system of jurisdictional fragmentation in the context of a structure of institutionalised discrimination,” Godos said.