International Court of Justice

Contents

  • My next book.
  • Blogs  – Scroll down to find:

–   ‘Can the ICJ in effect order disclosure of information by Israel about its AI machines?’

–   ‘Injunction sought to restrain supply of arms to Israel by Germany.’

–   ‘UN top court orders Israel to open more land crossings for aid into Gaza.’

–   ‘Israel is systematically destroying the infrastructure of society throughout Gaza in breach of IHL.’

–   ‘Execution of unarmed civilians by the IDF.’

–  ‘Why is the deliberate starvation of an entire civilian population by Israel blocking the entry by land of humanitarian relief not a red line for Joe Biden?’

–   ‘Israeli troops massacre unarmed civilians collecting food in Gaza – 29.02.2024.’

–   ‘The law as States would like it to be is not the law as it is.’

–   ‘Derogation from a peremptory norm is not permitted under International Law – so there can be no defence to a jus cogens violation.’

–  ‘The ICJ Ruling’s Hidden Diplomacy – How the Court’s Considered Measures Can Help America Restrain Israel.’

–   ‘Fiduciary theory of jus cogens.’

–   ‘Following the ICJ ruling will Rishi Sunak confirm that future arms sales to Israel have been suspended?’

–   ‘War Crime of execution – Rome Statute of the ICC.’

–   ‘South Africa’s case is legally watertight.’

–  ‘Cultural Genocide is the Elephant in the Room at the ICJ for the Global South.’

–  ‘Intentional destruction of cultural heritage is not only a war crime it is also prima facie evidence of genocide.’

–  ‘War is as much about destroying cultures and identity as it is about killing people and seizing land.’

–  ‘The UK Government is under a positive duty to ensure compliance by Israel with International Humanitarian Law’.

– ‘Complicity In International Law.’

– ‘UK accused of seeking to block the international court of justice.’

– ‘Jurisdiction of the International Criminal Court.’

– ‘Prosecution of individuals in UK courts for international war crimes?’

– ‘International Humanitarian Law prohibits the starvation of civilians as a method of warfare.’

– ‘For a war crimes suspect nowhere is safe.’

  • ICJ Hearings & Decisions.

My next book

The working title of my next book, which I plan to research and write in 2025 is, ‘International Dispute Settlement.‘ See the ‘International Dispute Settlement’ page at www.carlislam.co.uk

The book will also explore:

(i) the existence of ‘fiduciary’ duties owed by states under International Law to both their own people and to humanity, i.e. to the international community as a whole – the ‘Dual Commission’ principle; and

(ii) the intersection and nexus between jus cogens and erga omnes under International Humanitarian Law, including the absolute prohibition against genocide.

For more information about the book, please visit the ‘International Dispute Settlement’ page at www.carlislam.co.uk

Blogs

‘Can the ICJ in effect order disclosure of information by Israel about its AI machines?’

See:

Rules of the production of evidence before the ICJ are contained in Articles 48-52.

The ICJ has a number of tools for gathering evidence. Under the ICJ Statute and its Rules of Court, it can: (i) request parties to provide documents; (ii) put questions to the parties; (iii) call on international organizations to provide relevent information; (iv) call witnesses and experts at its own initiative; (v) conduct site inspections; and (vi) entrust third persons with ‘the task of carrying out an enquiry or giving an expert opinion.’ The ICJ has traditonally relied principally on the parties to a case for production of evidence, and since the parties are sovereign states, the Court does not have the power to compel them to produce evidence. Art. 49 ICJ Statute provides the Court with a device to offset this deficiency. The ICJ can take ‘formal note of any refusal by the parties to turn over the requested materials.’ Then, the court can ‘infer’ that the non produced evidence is ‘adverse to the interests’ of the non-producing party. In effect, reversing the burden of proof on the factual issue in question. Alternatively, it may ‘make findings of fact adverse to a party that has failed to comply with the order for production.’

Google – ‘The International Court of Justice’s Treatment of Circumstantial Evidence and Adverse Inferences Evidence and Adverse Inferences’, which states:

‘[T]he ICJ will rely on circumstantial evidence and liberal inferences to determine factual issues … in certain circumstances. The Court will resort to using circumstantial evidence in favor of one party when the other party has exclusive control of the evidence and when the other party or the Court cannot furnish any contradictory direct evidence. Simply submitting that the other party has territorial control is insufficient to earn the right to resort to circumstantial evidence. [T]he Court … must be convinced that the circumstantial evidence proves an issue beyond reasonable doubt. …  [There is] a hierarchy of preferred evidence. The Court favors direct evidence over circumstantial evidence. The Court finds factual evidence that has been put through the trial process more persuasive than factual evidence that has not withstood cross examination.”‘ Thus, if reliable direct evidence contradicts circumstantial evidence, the Court is unlikely to rely on the circumstantial evidence. [A] party’s ability to rely on circumstantial evidence may depend on the strength of its opponent’s case. … [C]onsistent with the powers vested in the Court by the ICJ Statute, at the pre-trial stage of cases requiring production of evidence, the ICJ could appoint a “special master” who would monitor discovery and act as a mediator relating to discovery disputes.’ This approach would enable the Court to settle in detail which facts are uncontested, what evidence the parties accept, and which issues need further clarification. As part of the process, the special master could recommend production orders and suggest inferences of fact that should be taken in response to a party’s failure to produce relevant evidence exclusively in its possession. This approach would shift the ICJ from merely sanctioning liberal recourse to circumstantial evidence in response to nonproduction to explicitly taking adverse findings of fact in appropriate circumstances. Following the example of domestic courts, such adverse findings of fact should be made only after prior warning. …’

Note that in civil proceedings – which ICJ proceedings are not, an adverse inference may be drawn where a witness who might be expected to give relevant evidence on an issue does not do so. So, the ICJ may also draw adverse inferences if Israel does not co-operate.

See also – Israel is taking ‘a lot of care to minimise civilian casualties’, says former home secretary Suella Braverman | The Independent

The existence, purpose, operation and consequences of using these AI machines entirely contradicts what Suella Braverman has said. I am wondering – does she know that using these AI machines Israel allocates a number between 0-100 to a target, and that its has been reported by intelligence sources that for the lowest level of Hamas operative targeted using Israeli AI machines, the permitted loss of innocent civilian lives in the same place as the target, i.e. collateral loss of life = 15 civilians/1 ‘low level’ Hamas operative? Google – ‘How Netanyahu is Depending Upon Hamas – Matt Hoh lays it all out + You Tube’ & ‘Israel Troop Withdrawal from Khan Younis But No Ceasefire + Jason Beardsley + You Tube.’ The use of AI in targeting and killing civilians, appears to explain the high number of deaths of women and children in Gaza. How can using AI machines in what has been described by commentators as being ‘AI Assisted Genocide’, i.e. the mass murder of civilians, be reconciled with the ‘care’ Suella Braverman claims Israel is carrying out? So, what she has said is complete nonsense!

Suella Braverman denies ‘that there’s a forced starvation.’ Google – ‘Israel Gaza war: EU says starvation being used as a weapon.’ This states – ‘Starvation is being used as a weapon of war in Gaza, the EU’s foreign policy chief has claimed.’ That is a war crime.

She also said that the killing of three British military heroes last week – ‘was a mistake.’

1st- How does she know?

2nd – It self-evidently was not a mistake, because these aid works were deliberately targeted, hunted, and then executed. Extra-judicial execution of civilians is a war crime – see my blog – ‘Execution of unarmed civilians by the IDF’ below. She asserts her legal credentials but does not appear to know or understand basic principles of International Humanitarian Law. How can any rational and informed person take what she says seriously?

See also:

‘Injunction sought to restrain supply of arms to Israel by Germany’

Nicaragua has asked the ICJ to order Germany to halt arms exports to Israel and reverse its decision to de-fund the UN Palestinian refugee agency UNRWA, saying there is a serious risk of genocide in Gaza. Nicaragua said Germany had violated the 1948 Genocide Convention by continuing to supply Israel with arms after ICJ judges ruled it was plausible that Israel violated some rights guaranteed under the genocide convention during its assault on Gaza.
“There can be no question that Germany (…) was well aware, and is well aware, of at least the serious risk of genocide being committed,” in the Gaza strip, Arguello Gomez said.’
‘It is recalled that Nicaragua filed an Application instituting proceedings against Germany concerning alleged violations by Germany of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, the Geneva Conventions of 1949 and their Additional Protocols, “intransgressible principles of international humanitarian law” and other norms of general international law in relation to the Occupied Palestinian Territory, particularly the Gaza Strip (see press release 2024/19). The hearings will be devoted to the request for the indication of provisional measures contained in Nicaragua’s Application. Nicaragua asks the Court to indicate provisional measures as a matter of extreme urgency, pending the Court’s determination on the merits of the case, with respect to Germany’s “participation in the ongoing plausible genocide and serious breaches of international humanitarian law and other peremptory norms of general international law occurring in the Gaza Strip”. Proceedings instituted by the Republic of Nicaragua against the Federal Republic of Germany on 1 March 2024 (icj-cij.org)

‘Nicaragua is arguing in its filing that “Germany is facilitating the commission of genocide” in Gaza and violating the Genocide Convention by providing Israel with military and financial aid. It asks for emergency measures ordering Berlin to halt its wartime support to Israel. … Nicaragua is also expected to assert that Germany is enabling grave breaches of the Geneva Conventions by Israel, in particular the obligation to protect civilians during armed conflict. The case brought by Nicaragua raises new questions about the liability of countries that have supplied weapons to Israel for the war in Gaza. Google ‘Nicaragua Is Taking Germany to ICJ Over Supplying Arms to Israel – The New York Times.’

In effect an injunction is being sought to restrain the supply of arms to Israel by Germany. When they become available, I will post links to the proceedings below under ‘International Court of Justice – Hearings & Judgments.’

If Germany does not comply with an order of the ICJ, then that may eventually open the door to proceedings for complicity in Genocide.

If you watch Prof. John Mearsheimer: Israel Wants to Drag the US Into WAR With Iran, Ukraine Proxy War is LOST (rumble.com) he mentions a recent poll in Israel from which he concludes that 68% of the population of Israel want a genocide in Gaza.

‘The common feature of Article 16 ARSIWA, Article 41 ARSIWA, and (according to the ICRC) common Article 1 is that they place obligations on States in relation to the conduct of others. Article 16 prohibits States from aiding or assisting in internationally wrongful acts by other States, whilst Article 41 sets out an aggravated regime of responsibility placing secondary (negative and positive) obligations on all States in response to serious breaches of peremptory rules.’ GCIII Commentary: Common Article 1 and State responsibility – Humanitarian Law & Policy Blog (icrc.org)

So, if the legal advice the UK Government has received from the Foreign Office is that Israel has breached International Law, then under International Law the UK must not approve export licences for the supply of arms to Israel. Nicaragua has today submitted to the ICJ that Germany is facilitating the commission of genocide in Gaza and violating the Genocide Convention by providing Israel with military and financial aid.

See also:

‘UN top court orders Israel to open more land crossings for aid into Gaza’

Starvation: Anatomy of ‘a very cruel, slow death’ | News | Al Jazeera

UN top court orders Israel to open more land crossings for aid into Gaza (msn.com)

‘UN top court orders Israel to open more land crossings for aid into Gaza’ + ‘The Indepenent’ – ‘The International Court of Justice issued two new so-called provisional measures in a case brought by South Africa accusing Israel of acts of genocide in its military campaign launched after the Oct. 7 attacks by Hamas. Israel stringently denies it is committing genocide and says its military campaign is self defense. Thursday’s order came after South Africa sought more provisional measures, including a ceasefire, citing starvation in Gaza. Israel urged the court not to issue new orders. In its legally binding order, the court told Israel to take “all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance” including food, water, fuel and medical supplies. It also ordered Israel to immediately ensure “that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the Convention on the Prevention and Punishment of the Crime of Genocide, including by preventing, through any action, the delivery of urgently needed humanitarian assistance.” …’

Joining-up the dots:

(i) ‘Genocide’ is not ‘self-defence’.

(ii) At the ICJ Provisional Measures Hearing in Januaury, Professor Vaughan Lowe KC, representing the Republic of South Africa stated two core principles of International Law:
1st – The exercise of the right of self-defence cannot justify or be a defence to genocide.
2nd – The prohibition of genocide is not an ordinary rule of international law: it is jus cogens – an overriding fundamental principle, at all times and without exception, for all humanity – ‘No matter how outrageous or appalling an attack or provocation, genocide is never a permissible response. Every use of force, whether used in self-defence, or in enforcing an occupation, or in policing operations, must stay within the limits set by international law, including the explicit duty in Article I of the Convention to prevent genocide. … The point is not simply that Israel is acting “disproportionately”. The point is that the prohibition on genocide is an absolute, peremptory rule of law. Nothing can ever justify genocide. No matter what some individuals within the group of Palestinians in Gaza may have done, and no matter how great the threat to Israeli citizens might be, genocidal attacks on the whole of Gaza and the whole of its population with the intent of destroying them cannot be justified.’

(iii) The court told Israel to report back in a month on its implementation of the orders. Therefore, if Israel does not comply, the ducks are in a row for the UNSC to pass a resolution to enforce the provisional measures ordered by the court.

(iv) Non-compliance also adds to the weight of evidence of Genocide.

So, Israel has legally been placed in a cleft stick.

For projected statistics about the number of civilians who are at risk of dying see – Horrifying New Gaza Study Shows Worst To Come – Without Immediate Ceasefire w/ Zeina Jamaluddine (youtube.com)

See also:

‘Murder of unarmed civilians waving white flags + Concealing Murder by bulldozing their bodies into rubbish + Famine through deliberate starvation of an entire civilian population.’

This is how the Zionist state of Israel has behaved following the UN Resolution call for an immediate ceasefire.

There must be an immediate call for sanctions – see my blog – ‘Hierarchy of Sanctions for non-compliance with a binding resolution of the UN Security Council’, on the ‘Negotiating Political Order’ page at www.diplomaticlawguide.com

The UNSC must also resolve to send a force of peace-keepers & humanitarian workers into Gaza, under the protection of armed soldiers wearing ‘blue helmets’, who are authorised to use lethal force against the IDF, in order to save civilian lives.

The UNSC has the power to order this because Israel is acting in breach of a binding resolution.

Unless immediate action is taken by the UNSC to enforce its binding resolution v. Israel, by ordering sanctions, then the future of the international rules based order is in jeopardy.

The vote needs to be held before the ceasefire expires.

If this is done & any state exercises a veto & continues to supply arms to Israel, then by holding the vote, those states in favour, will in effect, have placed the heads of any officials and political leaders of the vetoing state, on the legal block, for a future a war crimes court/tribunal.

In other words, by vetoing a resolution which called for sanctions, that was evidentially based upon the behaviour of the IDF over the last 24 hours, those decision-makers (i.e. officials and political leaders of the vetoing state), will have provided further evidence, if it was needed, of complicity in Genocide. Assuming of course, that the ICJ decide that Israel has committed genocide.

Of that, I am in no doubt.

The evidence against Israel is overwhelming & mounting by the hour –
Google:

‘UN agency warns “time is running out” to prevent famine in besieged and bombarded Gaza, urges Israel to lift aid restrictions immediately. Footage obtained by Al Jazeera shows unarmed Palestinian men – one repeatedly waving a piece of white cloth in a sign of surrender – before Israeli troops shoot them dead and then bury their bodies with a bulldozer near Gaza City.’

  • ‘They scream in hunger’ – How Israel is starving Palestinians in Gaza | Israel War on Gaza News | Al JazeeraThe UN must not only save Israel from itself, the Jewish diasapora from what Zionist zealots are doing in their name, but also set the Palestinian people free from their brutal and inhuman oppressors. There is only side in this conflict – the International Rule of Law. When you apply the rule, there is only one place for the perpetrators of war crimes, murder and genocide – prosecution in a court of law with jurisdiction and the power to do justice in the name of mankind.

‘Israel is systematically destroying the infrastructure of society throughout Gaza in breach of IHL’

See:

‘Execution of unarmed civilians by the IDF’

[‘Israel has been using loudspeakers overnight telling Palestinians to leave al-Shifa hospital in northern Gaza. Troops are threatening to blow the building up while people are still trapped inside. Food and water are not being allowed in.’ According to Al-Jazeera, civilians who following Israeli orders recently left the hospital, have reported being fired upon by the IDF using heavy machine guns. The women and children trapped inside the hospital must be terrified].

[This contains a report that the IDF machined-gunned to death the Head of Paediatric care at Al Shifa Hospital along with two ill children he was attending to at the time. If these accounts, as reported, are true, then they not only add to the mounting evidence of Genocide, and are war crimes, they amount to cold blooded murder].

‘Why is the deliberate starvation of an entire civilian population by Israel blocking the entry by land of humanitarian relief not a red line for Joe Biden?’

Is he suffering from amnesia, i.e. did he forget what Israel is doing all around its border with Gaza, or is he turning a Nelsonian blind eye to what Israel has been doing on a daily basis for months in breach of International Humanitarian Law? If under International Humanitarian Law the US owes a duty to Gazans as ‘fiduciaries of humanity’, then I would argue that Biden is in breach of fiduciary duty in permitting Israel to block the entry of food and water into Gaza by land. If Israel is eventually convicted of Genocide at the ICJ, then arguably turning a Nelsonian blind eye in breach of fiduciary duty, makes Biden and his administration accessories in the ultimate crime of Genocide.

See: Biden warns of ‘red line’ for Israel over Rafah – POLITICO

It was Netanyahu and not Biden who proposed a floating dock – which will take at least 2 months to construct. How many thousands of Gazans will have died of satrvation and disease by then? If the IDF enter Rafah before the dock is constructed, it may not be possible to complete construction because of ongoing military operations. So, the dock may turn out to be a mirage.

See:

US could take 2 months and 1,000 troops to construct floating pier to deliver aid to Gaza, Pentagon says (yahoo.com)

Meanwhile, until a ceasefire is announced in Gaza, uncertainty hangs over Lebanon, with the potential for another catastrophic war just around the corner. See: Is Israel hoping to escalate hostilities with Hezbollah in Lebanon? | News | Al Jazeera

An invasion of Lebanon by Israel is not a Biden red-line.

So, is there is another possible motivation for the construction of a floating port in Gaza?

An Israeli journalist recently reported that a Larnaca-based port used for checking goods set to be delivered to Gaza could double as an alternative to the Port of Haifa, should it be shut down in the case of an intensification of the conflict with Hezbollah. Could goods be delivered to Israel from Larnaca through Rafah using the floating dock, i.e. if war breaks out between Israel and Lebanon?

If that is a strategic aim, then the IDF must enter Rafah before invading Lebanon.

The reality is that Biden has no meaningful red-lines, and has re-affirmed his commitment to unconditionally supply arms to Israel.

So, the death rate in Gza will continue to rise. Since Biden has made it clear that the supply of arms will not be witheld if the IDF enter Rafah, then the slaughter of thousands of unarmed civilian Gazans in Rafah at the hands of the IDF is not only inevitable, but imminent.

See: Netanyahu says he will press forward with military campaign in Rafah (msn.com)

Instead of laying down a red line not to be crossed without incurring military consequences, Biden has given Israel a green light to continue to act without restraint, as there will be no consequences.

See:

See also my blogs below:

  • ‘International Humanitarian Law prohibits the starvation of civilians as a method of warfare’;
  • ‘Fiduciary theory of jus cogens’;
  • ‘The UK Government is under a positive duty to ensure compliance by Israel with International Humanitarian Law’;
  • ‘Complicity In International Law’, and

on the Negotiating Political Order page:

  • ‘Under International Law an occupier is both a fiduciary for their own people and also of humanity writ large.’ 

So, what will compel Israel to give up apartheid?

It will not be an event. It will be a tipping-point reached at the confluence and convergence of a series of dynamic factors, which include:

(i) Self-destruction of the fabric of Israeli society, and the raison d’etre of Zionism, brought about by the onset of moral decay from within Israeli society, as a result of genocide-mania within Israeli society, see: Why Israel’s Fake ‘Moderates’ Are Politically Dangerous (youtube.com)

(ii) Collapse of moral support by the general public in the Global North for Zionism, see e.g. British director Jonathan Glazer condemns Gaza attacks as he accepts Oscar for Holocaust film (msn.com)

(iii) A change in the political leadership of the Global North.

(iv) A realist choice made by the political leadership of the Global North to focus on containing China.

(v) A diplomatic rapprochement between the US and Russia.

(vi) The military defeat of Israel by Hezbollah following an attack by Israel on Lebanon, resulting in an end to the fighting in Gaza, which forces Israel to figure out what it needs to do to save itself. That is because Zionism will be perceived to be not only an existential threat to the survival of the liberal global order, but also to the continuation of US hegemony in the region.

(vii) An impetus, urged by US corporations, to preserve the status-quo in the Gulf States, see: Geopolitics in the C-Suite: More Than Ever, U.S. Foreign Policy Depends on Corporations—and Vice Versa (foreignaffairs.com)

(viii) A strategic decision made by leaders in the Global North and in the Global South, to collaborate in MENA to their mutual advantage, which results in a shift in US doctrinal thinking about the geo-political advantages of clipping the tail of the Israel Lobby and of the neo-cons, in order to prevent them from ever again wagging the dog in US foreign relations.

This process appears to have already begun as a result of the disaster in Ukraine, which was designed and engineered by neo-cons whose influence is now waning, see:

So, could a diplomatic settlement in Ukraine also bring about a political settlement in Gaza?

See my blog – ‘Understanding Conflict & Mediation’ on the Negotiating Political Order page.

‘Israel troops massacre unarmed civilians collecting food in Gaza – 29.02.2024.’

According to eye witnesses, unarmed civilians, including women, were fired upon by Israel aircraft, tanks and snipers. See: (43) Updates Israel’s war on Gaza live: Dozens killed while waiting for food aid (aljazeera.com)

‘Far-right Israeli National Security Minister Itamar Ben-Gvir says the provision of humanitarian aid to Palestinians in Gaza endangers Israeli soldiers and must stop after more than 100 Palestinians were reported killed while trying to get aid in Gaza City.
“Today it was proven that the transfer of humanitarian aid to Gaza is not only madness while our hostages are held in the Strip … but also endangers IDF soldiers,” Ben-Gvir said, calling the deliveries “oxygen to Hamas”.
The incident is “another clear reason why we must stop transferring this aid”, he wrote on X.
Palestinian officials have denounced the attack on starving civilians in the besieged and bombarded territory as a “cold-blooded massacre”. …

’Bassam Zaqout, director of the Palestinian Relief Society, has said that aid-seekers have repeatedly come under attack by Israeli forces in Gaza.
“This situation is happening every day, it’s not the first time,” he told Al Jazeera from Rafah, in southern Gaza.
“There is intention to increase the pressure towards Hamas by killing more civilians on the ground while the Israeli forces completely understand there is no operational health system in the Gaza Strip that can deal with such a massacre or with such a huge number of injured at this time,” he said.
“This is intentional killing of civilians who are not involved in this situation; they are just there waiting for humanitarian aid to come, they want to have food for their children, and this is the price that civilians have to pay.” …
Mustafa Barghouti, secretary-general of the Palestinian National Initiative, has condemned the deadly attack on aid-seekers as another “horrible crime” committed by Israel.
“We are dealing with a pariah state, a structure that has become fascist, run by fascists in a government that includes fascists,” he told Al Jazeera.
“These were civilians who are starving because Israel has been depriving them from food for months and does not allow any supplies to them for more than a month now,” said Barghouti. “And then they try to justify it by saying that Palestinians are responsible for being killed by the same Israeli soldiers? It’s unbelievable.”
Barghouti also decried “the silence” of Western countries and blaming their governments of being “complicit with these crimes and allow them to happen”.
“This should stop immediately,” he said. “It cannot stop without an immediate, permanent, complete and total ceasefire, without the Israeli army withdrawing from Gaza after they have destroyed it so much and after they have driven so many people, millions of people, to the edge of starvation and death from starving.” …’ (Reported by Al Jazeera).

‘Under International humanitarian law a party to the conflict is prohibited from wilfully killing or murdering a civilian. The prohibition is closely related to one of the cardinal principles of international humanitarian law, namely that parties to a conflict distinguish between military objectives and civilians. The intentional killing of civilians represents a war crime in both international armed conflict (in the form of wilful killing) and non international armed conflict (in the form of murder). It may also constitute a crime against humanity if committed as part of a widespread or systematic attack directed against any civilian population, or be an element of genocide.’ Google: ‘Examples of definitions of humanitarian law violations.pdf (un.org)’. So, what the IDF has done may constitute mass murder.

The White House said that Israeli forces opening fire on Palestinians waiting for humanitarian aid is a ‘serious incident’. More than 100 people were killed and over 700 injured.

There I surmise, goes any hope of Joe Biden winning Michigan. If he loses Michigan, then he will lose the Presidential election. Note that this massacre took place following the Democratic Party primary in Michigan on 27.02.2024.

Note added 01.03.2024:

‘The US, on 29 February, vetoed a UN Security Council (UNSC) statement that would have condemned Israel for the mass murder of over 100 Palestinian civilians who were awaiting the delivery of humanitarian aid in Gaza City. …
Thursday’s veto is the fifth time Washington has blocked a UNSC statement or ceasefire resolution that would hold Israel accountable for the atrocities it has committed in Gaza. According to Riyad Mansour, the Palestinian UN ambassador, 14 of the 15 council members supported the statement advanced by Algeria.
At least 112 Palestinians were killed and more than 750 wounded after Israeli troops opened heavy machine gun and artillery fire on thousands waiting for food … in what marked the first delivery of food to northern Gaza in several weeks.
“After opening fire, Israeli tanks advanced and ran over many of the dead and injured bodies,” Al Jazeera’s Ismail al-Ghoul reported from the scene.
“At about 4:30 in the early morning, trucks started to trickle in. The Israelis just opened random fire on us as if it was a trap. Once we approached the aid trucks, the Israeli tanks and warplanes started firing on us,” a witness at the scene told Al Jazeera. ‘ (thecradle.co)
‘The law as States would like it to be is not the law as it is.’

The six days of hearings in the ICJ of Israel’s occupation of the Palestinian territories concluded on 26 February 2024.

There are links to the proceedings on each day on the International Humanitarian Law and Mediation page under the heading ‘International Court of Justice – Hearings & Judgements’ at www.diplomaticlawguide.com.

Outstanding speeches include:
·       Palestine (Day 1) – scroll along to 1:15.
·       League of Arab Nations (Day 6 – Morning session) – scroll along to 53.00.
·       Mauritius (Day 6 –Afternoon session) – scroll to 1:18.

Representing the League of Arab Nations, one of the submissions made by Dr Ralph Wilde pulled the rug from underneath a central legal argument advanced by the US, UK & Zambia as follows:
‘The United States of America, the United Kingdom and Zambia suggested here that there is a sui generis applicable legal framework, an Israeli-Palestinian lex specialis. This somehow supersedes the rules of international law determining whether the occupation is existentially lawful. Instead, we have a new rule, justifying the occupation until there is a peace agreement meeting Israeli security needs. This is the law as these States would like it to be, not the law as it is. It has no basis in resolution 242, Oslo or any other resolutions or agreements. Actually, you are being invited to do away with the very operation of some of the fundamental, peremptory rules of international law itself. As a result, the matters these rules conceive as rights vested in the Palestinian people would be realized only if agreement is reached, and only on the basis of such agreement. 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. At worst, if there is no agreement, this means that the indefinite continuation of Israeli rule over the Palestinian people in the occupied Palestinian territories, on the basis of racist supremacy and a claim to sovereignty, would be lawful. This is an affront to the international rule of law, to the United Nations Charter imperative to settle disputes in conformity with international law, and to your judicial function as guardians of the international legal system.’

See also my post on the same page  –  ‘Derogation from a peremptory norm is not permitted under International Law – so there can be no defence to a jus cogens violation.’

‘Colonialism’ lies at the heart of this case. According to many leading political science and international relations theorists, the world is now geopolitically bifurcated i.e. split into two parts:
(i) the ‘Global North’ – essentially: US & European former colonial powers; and
(ii) the ‘Global South’ – which includes victims of colonialism & genocide.
Together with the Genocide case against Israel, these cases will have far reaching geopolitical consequences.

Verbatim transcript of the speech of Dr Ralph Wilde:

Mr WILDE:

Mr President, distinguished Members of the Court, it is a great honour and privilege to appear before you, and to represent the League of Arab States.
1. MORE THAN CENTURY-LONG DENIAL OF SELF-DETERMINATION OF, AND WAR AGAINST, THE PALESTINIAN PEOPLE, ON THE BASIS OF RACISM
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.
When this began after the First World War, the Jewish population of that land was 11 per cent8. Forcibly implementing Zionism in this demographic context has necessarily involved the extermination, or forced displacement of, some of the non-Jewish Palestinian population; the exercise of domination over, and subjugation, dispossession and immiseration of, remaining

[This statement draws on the following two documents submitted in the present case: Written Statement by the League of Arab States, 20 July 2023, and Written Comments on the written statements made by States and organizations by the League of Arab States, 25 Oct. 2023, both obtainable from https://www.icj-cij.org/case/186/written-proceedings. 11.06 per cent to be exact. Government of the United Kingdom, Report of J. B. Barron, Superintendent of Census, Palestine: Report and General Abstracts of the Census of 1922, 10 Feb. 1923, p. 5, table I, available at https://content.ecf.org.il/files/M00785_1922PalestineCensusEnglish.pdf].

non-Jewish Palestinians; the emigration to that land of Jewish people, regardless of any direct personal link; and the denial of Palestinian refugees the right to return. All operating through a racist distinction privileging Jewish people over non-Jewish Palestinian people.

This has necessitated serious violations of all the fundamental, jus cogens and erga omnes norms of international law — the right of self-determination, the prohibitions on aggression, genocide, crimes against humanity, racial discrimination, apartheid and torture ⎯ and the core protections of international humanitarian law.

Today I will address, first, violations of international law arising out of the régime of racial domination — apartheid — perpetrated against the Palestinian people across the entire land of historic Palestine, and then, second, the existential illegality of Israel’s occupation of the Palestinian Gaza Strip and West Bank, including East Jerusalem, since 1967.

As a necessary prerequisite, I must begin with the special right granted to the Palestinian people in the League Covenant.

2. PALESTINIAN SELF-DETERMINATION UNDER ARTICLE 22 OF THE LEAGUE OF NATIONS COVENANT10

The legal right of self-determination of the Palestinian people originates in the “sacred trust” obligations of Article 22 of the League Covenant, part of the Versailles Treaty. Palestine ⎯ an “A” class Mandate under British colonial rule ⎯ was, after the First World War, supposed to have its existence as an independent State “provisionally recognized”: a sui generis right of self-determination11. The United Kingdom and other members of the League Council attempted to bypass this, incorporating the 1917 Balfour Declaration commitment to establishing a national home

[See Written Statement of the League of Arab States, Sec. 8, pp. 16-19, Part 3 generally, pp. 19-38, especially Sec. 16 therein, pp. 37-38.
10 See generally Written Statement of the League of Arab States, p. 8, para. 13 (1); Written Comments of the League of Arab States, Sec. 6c, pp. 27-32; and Ralph Wilde, “Tears of the Olive Trees: Mandatory Palestine, the UK, and accountability for colonialism in international law”, Journal of the History of International Law (2022), available at https://brill.com/view/journals/jhil/aop/article-10.1163-15718050-12340216/article-10.1163-15718050-12340216.xml? language=en (hereinafter “Wilde, Tears of Olive Trees”).
11 Treaty of Peace Between the Allied and Associated Powers and Germany, signed in Versailles, 28 June 1919, entry into force 10 January 1920, (1919) UKTS 4 (Cmd. 153), Part I, League Covenant 1919: Covenant of the League of Nations, 28 Apr. 1919, available at: https://www.ungeneva.org/en/about/league-of-nations/covenant].

for the Jewish people in Palestine into the instrument stipulating how the Mandate would operate12. However, the Council had no legal power to bypass the Covenant in this way. It acted ultra vires, and the relevant provisions were, legally, void13. There was and is no legal basis in that Mandate instrument for either a specifically Jewish State in Palestine, or the United Kingdom’s failure to discharge the “sacred trust” obligation to implement Palestinian self-determination.

3. SELF-DETERMINATION IN INTERNATIONAL LAW AFTER THE SECOND WORLD WAR — AN ADDITIONAL RIGHT

After the Second World War, a self-determination right applicable to colonial peoples generally crystallized in international law.
9. For the Palestinian people, this essentially corresponded to, and supplemented, the pre-existing Covenant right, regarding the same, single territory. The 1947 proposal to partition Palestine was contrary to this; the Arab rejection an affirmation of the legal status quo.

In 1948, then, Palestine was, legally, a single territory with a single population enjoying a right of self-determination on a unitary basis.

4. NAKBA IN 1948 — VIOLATION OF SELF-DETERMINATION AND CREATION OF A RÉGIME INVOLVING AN ONGOING VIOLATION OF THIS RIGHT, AS WELL AS RACIAL DISCRIMINATION AND APARTHEID AND A DENIAL OF THE RIGHT TO RETURN

Despite this, a State of Israel, specifically for Jewish people, was proclaimed in 1948 by those controlling 78 per cent — more than three quarters — of Palestine, accompanied by the forced displacement of a significant number of the non-Jewish Palestinian population — the Nakba, catastrophe14. This illegal secession was an egregious violation of Palestinian self-determination. Israel’s statehood was recognized, and Israel admitted as a United Nations Member, despite this illegality. Israel is not the legal continuation or successor of the Mandate.

[Mandate for Palestine, text approved by the League of Nations Council 19th Session, 13th Meeting, 24 July 1922, UN Library reference C.529. M.314. 1922. VI., available at: https://www.un.org/unispal/document/auto-insert-201057/, entry into force on 29 Sept. 1923, Minutes of the Meeting of the League of Nations Council held at Geneva on 29 September 1923, UN Library reference C.L.101.1923.VI., available at https://www.un.org/unispal/document/auto-insert-204395/.
13 Wilde, Tears of Olive Trees, pp. 402-403.
14 State of Palestine, Palestinian Liberation Organization Negotiation Affairs Department, Borders, https://www.nad.ps/en/our-position/borders#:~:text=During%20the%20June%201967%20war,Palestinian%20half% 20of%20the%20city, and United Nations, The Question of Palestine, History, https://www.un.org/unispal/history/].

This violation of Palestinian self-determination is ongoing, and unresolved. Two key elements are:

First, Palestinian people not displaced from the land proclaimed to be of Israel in 1948, and their descendants, have been forced to live as citizens — presently they constitute 17.2 per cent — of a State conceived to be of and for another racial group, under the domination of that group, necessarily treated as second class, because of their race15.

Second, Palestinian people displaced from that land, and their descendants, cannot return.

These are serious breaches of the right of self-determination, the prohibitions of racial discrimination and apartheid, and the right of return. They must end, immediately.

5. 1967 ISRAELI CAPTURE OF THE PALESTINIAN GAZA STRIP AND WEST BANK (INCLUDING EAST JERUSALEM)

As if this ongoing Nakba was not catastrophic enough, in 1967 Israel captured the remaining 22 per cent of historic Palestine — the Gaza Strip and West Bank, including East Jerusalem — the Naksa16. It has maintained that use of force to remain in control for the 57-year period since.

6. ILLEGAL RACIAL DOMINATION — APARTHEID — FROM THE JORDAN RIVER TO THE MEDITERRANEAN SEA

For more than half a century, then, a State defined to be of and for Jewish people exclusively has governed the entire land of historic Palestine and the Palestinian people there. And the régime of racial domination — apartheid — and denying return, has been extended throughout. In the case of Palestinians living in the occupied territory, this has involved the same serious violations of international law, supplemented by serious violations of norms applicable in occupied territory.
[Nasreen Haddad Haj-Yahya, Muhammed Khalaily, Arik Rudnitzky and Ben Fargeon, Statistical Report on Arab Society in Israel 2021, The Israel Democracy Institute, 17 Mar. 2022, available at https://en.idi.org.il/articles/38540.
16 State of Palestine, Palestinian Liberation Organization Negotiation Affairs Department, Borders, https://www.nad.ps/en/our-position/borders#:~:text=During%20the%20June%201967%20war,Palestinian%20half%20 of%20the%20city. See also Statement of HE Mr Mahmoud Abbas, President of the State of Palestine, Chairman of the Executive Committee of the Palestine Liberation Organization and President of the Palestinian National Authority before the United Nations General Assembly’s Sixty-Sixth Session, New York, 23 Sept. 2011, https://gadebate.un.org/sites/ default/files/gastatements/66/ps_en_25.pdf.
17 Written Statement of the League of Arab States, Sec. 13, pp. 26-33].

Indeed, these people are subject to an even more extreme form of racist domination, as they are not even citizens of the State exercising authority over them. Even in East Jerusalem, which Israel has purported to annex, the majority non-Jewish Palestinian residents do not have citizenship, whereas Jewish residents, including illegal settlers, are citizens.

Just as in territorial Israel, in occupied territory, these serious violations concerning how Israel exercises authority over the Palestinian people must end immediately.

However, here, a more fundamental matter must also be addressed. The illegality of the exercise of authority itself.

7. THE GAZA STRIP AND WEST BANK AS PALESTINIAN TERRITORY, WITH THE CONSEQUENCE THAT ISRAEL’S PURPORTED ANNEXATION, AND ATTEMPTED COLONIZATION, ARE ILLEGAL

The enduring Palestinian right of self-determination means that the Palestinian people, and the State of Palestine, not Israel, are sovereign over the territory Israel captured in 196718. For Israel, the land is extraterritorial, and, given what I said about the Mandate, territory over which it has no legal sovereign entitlement.

Despite this, Israel has purported to annex East Jerusalem and taken various actions there and in the rest of the West Bank constituting de jure and de facto purported annexation, including implanting settlements. It is Israeli policy that Israel should be not only the exclusive authority over the entire land between the river and the sea, but also the exclusive sovereign authority there.

This constitutes a complete repudiation of Palestinian self-determination as a legal right, since it empties the right entirely of any territorial content.

Actualizing this through de facto and de jure purported annexation is, first, a serious violation of Palestinian self-determination and, second, because it is enabled through the use of force, a violation of the prohibition on the purported acquisition of territory through the use of force in the law on the use of force, and so an aggression21. Serious violations of further areas of law regulating

[Ralph Wilde, “Using the master’s tools to dismantle the master’s house: international law and Palestinian liberation”, Palestine Yearbook of International Law, Vol. 22 3 (2021) (hereinafter “Wilde, Master’s Tools”), pp. 35-39.
19 Written Comments of the League of Arab States, Sec. 6, pp. 23-32; Wilde, Master’s Tools, pp. 40-41. Written Comments of the League of Arab States, Sec. 6, pp. 23-32, esp. Secs. 6a and 6b, pp. 23-26. 21 Ibid., Sec. 11 (p. 21-3); Wilde, Master’s Tools, p. 40].

the conduct of the occupation are also being perpetrated, notably the prohibitions on implanting settlements and altering, unless absolutely prevented, the legal, political, social and religious status quo.

The occupation is, therefore, existentially illegal because of its use to actualize purported annexation. To end this serious illegality, it must be terminated: Israel must renounce all sovereignty claims and all settlements must be removed. Immediately.

However, this is not the only basis on which the occupation’s existential legality must be addressed.

We need to delve deeper into both the law of self-determination and the law on the use of force.

8. SELF-DETERMINATION AS A RIGHT TO BE SELF-GOVERNING, REQUIRING THE OCCUPATION TO END IMMEDIATELY

Beginning with self-determination: this right, when applied to the Palestinian people in the territory Israel captured in 1967, is a right to be entirely self-governing, free from Israeli domination.

Consequently, the Palestinian people have a legal right to the immediate end of the occupation. And Israel has a co-relative legal duty to immediately terminate the occupation.

This right exists and operates simply and exclusively because the Palestinian people are entitled to it. It does not depend on others agreeing to its realization. It is a right.

It is a repudiation of “trusteeship”, whereby colonial peoples were ostensibly to be granted freedom only if and when they were deemed “ready” because of their stage of “development” determined by the racist standard of civilization24. The anti-colonial self-determination rule replaced this with a right based on the automatic, immediate entitlement of all people to freedom, without preconditions. In the words of General Assembly resolution 1514, “inadequacy of . . . preparedness should never serve as a pretext for delaying independence”.

[Written Statement of the League of Arab States, Sec. 13, pp. 26-33.
23 See generally Written Statement of the League of Arab States, Sec. 4.c., pp. 9-10, Sec. 10, pp. 20-21, Sec. 11.d., pp. 22-23; Wilde, Master’s Tools, Secs. IV-VIII, pp. 35-73). See Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (OUP 2008), Chap. 8.
25 UNGA res. 1514 (XV), 14 Dec. 1960, UN doc. A/RES/1514 (XV), para. 3].

Some suggest that the Palestinian people were offered, and rejected, deals that could have ended the occupation. And, therefore, Israel can maintain it pending a settlement. Even assuming, arguendo, the veracity of this account, the “deals” involved a further loss of the sovereign territory of the Palestinian people.

Israel cannot lawfully demand concessions on Palestinian rights as the price for ending its impediment to Palestinian freedom. This would mean Israel using force to coerce the Palestinian people to give up some of their peremptory legal rights: illegal in the law on the use of force and, necessarily, voiding the relevant terms of any agreement reached. The Palestinian people are legally entitled to reject a further loss of land over which they have an exclusive, legal, peremptory right. Any such rejection makes no difference to Israel’s immediate legal obligation to end the occupation.

9. THE OCCUPATION AS AN ILLEGAL USE OF FORCE IN THE JUS AD BELLUM AS A GENERAL MATTER (BEYOND THE LINK TO PURPORTED ANNEXATION)

Turning to the law on the use of force: Israel’s control over the Palestinian territory since 1967, as a military occupation, is an ongoing use of force. As such, its existential legality is determined by the law on the use of force, as a general matter, beyond the specific issue of annexation.

Israel captured the Gaza Strip and West Bank from Egypt and Jordan in the war it launched against them and Syria. It claimed to be acting in self-defence, anticipating a non-immediately imminent attack. The war was over after six days. Peace treaties between Israel and Egypt and Jordan were subsequently adopted.

Despite this, Israel maintained control of the territory — continuing the use of force enabling its capture.

Israel’s 1967 war was illegal in the jus ad bellum — even assuming, arguendo, its claim of a feared attack, States cannot lawfully use force in non-immediately imminent anticipatory self-defence.

[See Written Statement of the League of Arab States, Sec. 12, pp. 23-26; Written Comments of the League of Arab States, Sec. 7, pp. 32-33; and Wilde, Master’s Tools, Section III, pp. 21-35.
27 Treaty of Peace between Egypt and Israel, 26 March 1979, UNTS, Vol. 1136, p. 100; Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, 26 October 1994, UNTS, Vol. 2042, p. 351].

Alternatively, assuming ⎯ again arguendo ⎯ that the war was lawful, the justification ended after six days. However, the jus ad bellum requirements continued to apply to the occupation as itself a continuing use of force. In 1967, with self-determination well established in international law, States could not lawfully use force to retain control over a self-determination unit captured in war, unless the legal test justifying the initial use of force also justified, on the same basis, the use of force in retaining control. Moreover, this justification would need to continue, not only in the immediate aftermath, but for more than half a century. Manifestly, this legal test has not been met.

Israel’s exercise of control over the Gaza Strip and West Bank through the use of force has been illegal in the jus ad bellum since the capture of the territory, or, at least, very soon afterwards.
40. The occupation is, therefore, again existentially illegal in the law on the use of force — an aggression — this time, as a general matter, beyond illegality specific to annexation. To terminate this serious violation, the occupation must, likewise, end immediately.

10. ILLEGAL FORCE DOES NOT BECOME LAWFUL IN RESPONSE TO RESISTANCE TO IT

What of Israel’s current military action in Gaza? This is not a war that began in October 2023. It is a drastic scaling-up of the force exercised there, and in the West Bank, on a continual basis, since 1967. A justification for a new phase in an ongoing illegal use of force cannot be constructed solely out of the consequences of violent resistance to that illegal use of force. Otherwise, an illegal use of force would be rendered lawful because those subject to it violently resisted — circular logic, with a perverse outcome.

11. ISRAEL CANNOT LAWFULLY USE FORCE TO CONTROL THE PALESTINIAN TERRITORY FOR SECURITY PURPOSES/PENDING A PEACE AGREEMENT

More generally, Israel cannot lawfully use force to control the Palestinian territory for security purposes pending an agreement providing security guarantees. States can only lawfully use

[Written Statement of the League of Arab States, p. 25, paras. 70-71; Wilde, Master’s Tools, pp. 25-26. Ralph Wilde, “Israel’s War in Gaza is Not a Valid Act of Self-defence in International Law”, Opinio Juris, 9 Nov. 2023, https://opiniojuris.org/2023/11/09/israels-war-in-gaza-is-not-a-valid-act-of-self-defence-in-international-law/.
30 See Written Statement of the League of Arab States, p. 24, paras. 63-66, p. 25, paras. 72-73; Written Comments of the League of Arab States, Sec. 3, pp. 5-17; Wilde, Master’s Tools, pp. 27-31].

force outside their borders in extremely narrow circumstances. Beyond that, they must address security concerns non-forcibly.

The United States of America, the United Kingdom and Zambia suggested here that there is a sui generis applicable legal framework, an Israeli-Palestinian lex specialis. This somehow supersedes the rules of international law determining whether the occupation is existentially lawful. Instead, we have a new rule, justifying the occupation until there is a peace agreement meeting Israeli security needs. This is the law as these States would like it to be, not the law as it is. It has no basis in resolution 242, Oslo or any other resolutions or agreements31. Actually, you are being invited to do away with the very operation of some of the fundamental, peremptory rules of international law itself. As a result, the matters these rules conceive as rights vested in the Palestinian people would be realized only if agreement is reached, and only on the basis of such agreement. 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 favour32. At worst, if there is no agreement, this means that the indefinite continuation of Israeli rule over the Palestinian people in the occupied Palestinian territories, on the basis of racist supremacy and a claim to sovereignty, would be lawful33. This is an affront to the international rule of law, to the United Nations Charter imperative to settle disputes in conformity with international law, and to your judicial function as guardians of the international legal system.

A final potential basis sometimes invoked to justify continuing the occupation should be addressed. Occupation and human rights law — applicable to illegal and lawful occupations alike — oblige Israel to address security threats in occupied territory. However, they only regulate the conduct of an occupation when it exists. They do not also provide a legal basis for that existence itself. Existential legality is determined by the law of self-determination and the jus ad bellum only.

[See Written Statement of the League of Arab States, Sec. 12.b, p. 24; and also Written Comments of the League of Arab States, Sec. 3, pp. 5-17.
32 See also Written Comments of the League of Arab States, p. 16, para. 54.
33 Ibid.34 Ibid., Sec. 3.b, pp. 6-8, paras. 54-55, p. 17 and pp. 19-20, paras. 62-63].

There is no “back door” legal basis for Israel to maintain the occupation through the imperatives of occupation and human rights law.

12. EXISTENTIAL ILLEGALITY OF ISRAEL’S OCCUPATION OF THE PALESTINIAN GAZA STRIP AND WEST BANK, INCLUDING EAST JERUSALEM

In sum: the occupation of the Palestinian Gaza Strip and West Bank, including East Jerusalem, is existentially illegal on two mutually reinforcing bases.

First, the law on the use of force. Here, the occupation is illegal both as a use of force without valid justification, and because it is enabling an illegal purported annexation. As such, it is an aggression.

Second, the law of self-determination. Here, it is illegal again because of the association with illegal purported annexation, and also, more generally, because it is, quite simply, an exercise of authority over the Palestinian people that, by its very nature, violates their right to freedom.

This multifaceted existential illegality — involving serious violations of peremptory norms — has two key consequences.

First: the occupation must end: Israel must renounce its claim to sovereignty over the Palestinian territory; all settlers must be removed. Immediately. This is required to end the illegality, to discharge the positive obligation to enable immediate Palestinian self-administration, and because Israel lacks any legal entitlement to exercise authority.

Second, in the absence of the occupation ending, necessarily, everything Israel does in the Palestinian territory lacks a valid international legal basis and is, therefore (subject to the Namibia exception), invalid, not only those things violating the law regulating the conduct of the occupation36. Those norms entitle and require Israel to do certain things. But this does not alter the more fundamental position, from the law on the use of force and self-determination, that Israel lacks any valid authority to do anything, and whatever it does is illegal, even if compliant with or pursuant to the conduct-regulatory rules.

[Written Statement of the League of Arab States, Sec. 15.b, pp. 34-36.
36 Ibid., Sec. 15, pp. 34-37, and Sec. 17, pp. 38-41].

13. THE WORDS OF REFAAT ALAREER

I will close by quoting Palestinian academic and poet Refaat Alareer, from his final poem posted 36 days before he was killed by Israel in Gaza on 6 December 2023:

If I must die,
you must live
to tell my story
[…]
If I must die
let it bring hope,
let it be a story.

‘Derogation from a peremptory norm is not permitted under International Law – so there can be no defence to a jus cogens violation.’

I have a research and writing interest in relation to International Humanitarian Law, and in 2025 plan to research and write a book provisionally entitled, ‘Universal Principles of Humanity Under International Law – Jus Cogens & Erga Omnes.’See the International Humanitarian Law page at www.carlislam.co.uk.

States can respond to breaches of obligations ‘erga omnes’ by instituting proceedings in the ICJ. Where under International Law a crime, e.g. genocide is a ‘jus cogens’ violation, there can be no legal justification whatsoever. So, at trial, (i) ‘erga omnes’ – which on the factual matrix may arise out of a breach of ‘fiduciary duty’ under international law, see my previous post; and (ii) ‘jus cogens’, are powerful arguments in discharging the burden of proof, because if the other threshold issues are met, i.e. proven, including: ‘dispute’; ‘jurisdiction’; ‘actus reus’ and ‘intent’, there is no defence.

‘The ICJ Ruling’s Hidden Diplomacy – How the Court’s Considered Measures Can Help America Restrain Israel’

Writing today in the journal Foreign Affairs in an article entitled, ‘The ICJ Ruling’s Hidden Diplomacy – How the Court’s Considered Measures Can Help America Restrain Israel’, David Kaye observed:
·       ‘Sword of Damocles’ – The court has placed ‘a virtual sword of Damocles over not only Israel in its future conduct in Gaza, but also those, such as the United States, that have given it such strong support.’
·       ‘Diplomatic tool’ – ‘The court has given the United States and Europe a new tool to demand that Israel change its approach in Gaza. The ruling offers the Biden administration an opportunity to emphasize its strong displeasure, backed by international law, with the dehumanizing rhetoric that has come from members of Israel’s right-wing cabinet. And it provides Washington with an opportunity to press Prime Minister Benjamin Netanyahu to do more than merely restate Israel’s aims to “eradicate” Hamas and to hold accountable those in his coalition and in the military who use the language of destruction of Gaza and its Palestinian population.’
·       ‘Opportunity for US to reaffirm it’s historic commitment to enforcement of international justice ’ – ‘Even as it supports Israel’s right to self-defense, the United States can bolster the court’s demands for concrete Israeli steps to prevent and punish violence against civilians in Gaza and the rampant destruction of the infrastructure that makes Gaza livable. The United States is no mere bystander, either to Israeli military action or to the enforcement of international law. Indeed, Washington has in the past, launching the modern era’s use of the court for real-time international justice when it brought an ICJ claim against Iran in 1979, demanding that it release the American hostages held at the U.S. embassy in Tehran. The court has given the United States an opportunity to reaffirm that historic commitment, and the Biden administration should take it.’

‘Fiduciary theory of jus cogens’

‘jus cogens‘ (literally, ‘compelling law‘) refers to norms that command peremptory authority, superseding conflicting treaties & customs, i.e. they are mandatory. In their article ‘A Fiduciary Theory of Jus Cogens’ (The Yale Journal of International Law (2009) Vol 34: 331-387), Evan Criddle & Evan Fox-Decent argue that:

‘Jus cogens ‘s norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.  … By placing limits on state action, jus cogens challenges the positivist orthodoxy that views state consent as the wellspring of all international legal obligations. … [Peremptory] norms express constitutive elements of sovereignty’s normative dimension. The key to understanding international jus cogens lies in a much neglected passage of The Doctrine Of Right, where Immanuel Kant discusses the innate right of humanity which all children may assert against their parents as citizens of the world. Drawing on Kant’s account of familial fiduciary relations, our theory of jus cogens posits that states exercise sovereign authority as fiduciaries of the people subject to state power. An immanent feature of this state subject fiduciary relationship is that the state must comply with jus cogens. … Although the term  “jus cogens” did not take root in international law discourse until the 20th century, the principle that certain fundamental norms merit peremptory authority within international law bears a much older pedigree. Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate consensual agreements between states from the “necessary” principles of international law that bind all states as a point of conscience regardless of consent. In contrast to ordinary legal obligations derive from treaty or customs, jus scriptum norms would not permit derogation, Vattel reasoned, because they were derived from a higher source – the natural law of reason itself;

“We use the term necessary Law of Nations for that law which results from applying the natural law to Nations. It is necessary, because Nations are absolutely bound to observe it. … The same law is called by Grotius and his followers the internal Law of Nations. … It is by the application of this principle that a distinction can be made between lawful and unlawful treaties or conventions and between customs which are innocent and reasonable and those which are unjust and deserving of condemnation.” [Emer De Vattel, The Law Of nations Or The Principles Of Natural Law (1758).). …

Verdross argued that states bore an imperative duty under international law to undertake certain moral tasks. …

Lauterpacht asserted that peremptory norms derive their unique legal authority from two interrelated sources – international morality and general principles of state practice. In Lauterpacht’s view, “overriding principles of international law,” [which in my opinion include a duty by an occupier to protect ancient  monuments located in occupied territory – subject to the doctrine of military necessity], “may be regarded as constituting principles of international public order (ordre international public). These principles … May be expressive of rules of international morality so cogent that an international tribunal would consider them forming a part of those principles of law generally recognised by civilised nations which the ICJ is bound to apply [under] it’s statute.” … Kant’s theory of international law ultimately relies on his social contract theory of the state. [The] theory we defend is that the state and its institutions fiduciaries of the people subject to state power, and therefore a state’s claim to sovereignty, properly understood, relies on its fulfilment of a multifaceted and overarching fiduciary obligation to respect the agency and dignity of the people subject to state power. One of the requirements of this obligation – is compliance with jus cogens. Put another way, fiduciary principle governs the relationship between the state and its people, and this principle requires the state to comply with peremptory norms. … Fiduciary relations arise from circumstances in which one party (the fiduciary) holds discretionary power of an administrative nature over the legal or practical interests of another party (the beneficiary), and the beneficiary is  peculiarly vulnerable to the fiduciary’s power in the sense that she is unable, either as a matter of fact or law, to exercise the entrusted power. … The fiduciary’s power is purposive in that it is held or conferred for limited purposes, such as furthering exclusively the equitable interests of a trust’s beneficiary.  And finally, the power is institutional in that it must be situated within a legally permissible institution.  … The law seeks to dissolve rather than regulate relationships of incorrigible domination. Beneficiaries are particularly vulnerable in that, once in a fiduciary relationship, they generally are unable to protect themselves or their entrusted interests against an abuse of fiduciary power. … Locke had famously asserted that legislative power is “only a fiduciary power to act for certain ends” and that “there remained still in the people a supreme power to remove or alter the legislators, when they find the legislative act contrary to the trust reposed in them. In other words, popular sovereignty denotes that the state sovereign powers belong to the people, and so those powers are held in trust by the rulers on condition that they be used for the people’s benefit. Popular sovereignty thus implies that the state and its institutions are fiduciaries of the people, for their justification rests exclusively on the authority they enjoy the governance of the people. … [It] is an entity’s assumption of state powers, not the jury statehood per se, that triggers the fiduciary principle. Any entity that assumes unilateral administrator power over individuals bears a fiduciary obligation to honour the basic demands of dignity, including the peremptory norms of international jus cogens. … [Implicit] within the state’s obligation to secure legal order is another independently sufficient condition for the identification of peremptory norms: the rule of law. … Public corruption offends the state subject fiduciary relation irrespective of whether the corrupt acts are large or small in scope: a low-level public official who … Accepts a petty bride violates the peremptory norm against corruption, just as a head of state violates jus cogens by draining the state treasury for private gain. The prohibition against corruption thus illustrates the important principle that the scope of jus cogens is not limited exclusively to acts such as military aggression. … Violations of peremptory norms .. are necessarily wrongful and legally impermissible on any scale. … Legal scholars have traced the fiduciary concept as far back as the Code of Hammurabi in ancient Mesopotamia … and have shown that concepts of fiduciary obligation informs not only Roman law … But also Islamic law. … Indeed, the modern Anglo-American law of trust owes a considerable debt to the waqf from Islamic law – an endowment created by a donor for use by designated beneficiaries and under the administration of the trustee – which was introduced to England by Franciscan friars returning from the Crusades in the 13th century. … Many important questions require further consideration. … An additional consideration should be devoted, as well, to unpacking the fiduciary model’s consequences for future litigation to enforce alleged jus cogens violations, including such threshold concerns as standing, sovereign immunity, causes of action, compulsory jurisdiction, forums, and remedies. … Addressing these questions will be essential to determine the specific legal consequences that flow from a breach of jus cogens.’ [Criddle & Fox-Decent (2009): 331;332;333;334;335;337;347;350;359;366;372;378;379; 387].

An additional consideration should be devoted, as well, to unpacking the fiduciary model’s consequences for future litigation to enforce alleged jus cogens violations, including such threshold concerns as standing, sovereign immunity, causes of action, compulsory jurisdiction, forums, and remedies. … Addressing these questions will be essential to determine the specific legal consequences that flow from a breach of jus cogens.’ [Evan Criddle & Evan Fox-Decent]. Another consideration is how a global order in which states must act as ‘fiduciaries of humanity’ can emerge and evolve in the real world of ‘balance of power politics’, i.e. because states will usually act in their own interest. It would be a better world if states, politicians, and political elites were under an overriding fiduciary duty to act in the best interests of all mankind, and perhaps future generations will become the architects? Meanwhile the seeds of what can become a mighty Oak Tree have been planted, and if nourished and protected, perhaps a new ‘fiduciary’ world order will evovlve incrementally and in small steps. I think that one step is acknowledgment of the existence of ‘humanitarian principles’ under IHL, which I will be writing about in 2025.

You will be hearing a lot about ‘jus cogens’ over the coming months and years, as the absolute prohibition of genocide is both ‘jus cogens’ and ‘erga omnes partes’ (i.e. obligations owed to the international community as a whole) – as the ICJ stated yesterday.

See also my essay on the ‘International Humanitarian Law’ page at  www.carlislam.co.uk – ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’

‘War Crime of execution – Rome Statute of the ICC.’

Para 103 of ICC, The Office of the Prosecutor, Situation in Mali Article 53(1) Report (16 January 2013) states:
‘The actus reus of the war crime of … execution without due process pursuant to Article 8(2)(c)(iv) requires that the perpetrator … carry out an execution of one or more persons who were … civilians … taking no part in hostilities; and that the … execution is carried out without previous judgement pronounced by a regularly constituted court, that is, a court which affords the essential guarantees of independence and impartiality, and the other judicial guarantees generally recognised as indispensable under international law.’
The elements of this war crime are:
·       The perpetrator … executed one or more persons.
·       Such person or persons were … civilians.
·       The perpetrator was aware of the factual circumstances that established this status.
·       There was no previous judgement pronounced by a court, or the court that rendered judgement was not “regularly constituted”, that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgement did not afford all other judicial guarantees generally recognized as indispensable under international law. The perpetrator was aware of the absence of a previous judgement or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial.

‘South Africa’s case is legally watertight’

Professor Vaughan Lowe KC, representing the Republic of South Africa stated two core principles of International Law:
1st – The exercise of the right of self-defence cannot justify or be a defence to genocide – ‘In its Advisory Opinion in the Wall case the Court noted that the threat that Israel argued justified the construction of the Wall was not imputable to a foreign State, but emanated from territory – the Occupied Palestinian Territory – over which Israel itself exercises control. For those reasons the Court decided that as a matter of international law the right of self-defence under Article 51 of the UN Charter had no relevance in such circumstances. Twenty days ago the Security Council affirmed yet again that Gaza is occupied territory. Though Israel refers to a complete withdrawal from Gaza, it has retained control over Gaza – over access by land, sea and air, and over key governmental functions and supplies of water and electricity. The tightness of its grip may have varied; but no-one can doubt the continuous reality of Israel’s grip on Gaza. The Court’s legal holding from 2004 remains good. A similar point is to be made here. What Israel is doing in Gaza, it is doing in territory under its own control. Its actions are enforcing its occupation. The law on self-defence under Article 51 of the Charter has no application.’
2nd – The prohibition of genocide is not an ordinary rule of international law: it is jus cogens – an overriding fundamental principle, at all times and without exception, for all humanity – ‘No matter how outrageous or appalling an attack or provocation, genocide is never a permissible response. Every use of force, whether used in self-defence, or in enforcing an occupation, or in policing operations, must stay within the limits set by international law, including the explicit duty in Article I of the Convention to prevent genocide. South Africa believes that the publicly-available evidence, of the scale of the destruction resulting from the bombardment of Gaza, and the deliberate restriction of the food, water, medicines and electricity available to the population of Gaza demonstrates that the Government of Israel – not Jewish people or Israeli citizens: the Government of Israel and its military – is intent on destroying the Palestinians in Gaza as a group, and is doing nothing to prevent or punish the actions of others who support that aim. The point is not simply that Israel is acting ‘disproportionately’: the point is that the prohibition on genocide is an absolute, peremptory rule of law. Nothing can ever justify genocide. No matter what some individuals within the group of Palestinians in Gaza may have done, and no matter how great the threat to Israeli citizens might be, genocidal attacks on the whole of Gaza and the whole of its population with the intent of destroying them cannot be justified.’

‘Courts and Tribunals have repeatedly recognised the jus cogens character of the prohibition of genocide. The international court has consistently observed that genocide constitutes a universal prohibition arising from the higher interests of the international community, giving rise to obligations erga omnes. Domestic courts in Canada, Germany, Italy, the Philippines, Spain, and the United States have [also] recognised the jus cogens character of the prohibition of genocide.’ (‘Jus Cogens – International Law and Social Contract’ by Thomas Weatherall [2015] Cambridge University Press, p.233).

‘The Genocide Convention places criminal responsibility on all individuals, Article IV making no exception for Heads of State or lesser public officials.’ (‘Handbook of International Law, Second Edition, by Anthony Aust [2011], Cambridge University Press). Anthony Aust was a former Deputy Legal Adviser of the Foreign & Commonwealth Office in London.

The principles stated by Professor Lowe are immutable. Therefore provided the burden of proof has been discharged on the other threshold issues, i.e. ‘dispute; ‘jurisdiction’; ‘actus reus’; and ‘intention’, for which South Africa adduced overwhelming primary evidence from credible sources, including the Israeli Government and the IDF themselves, then it’s application for provisional measures which must satisfy the legal test of ‘plausibility’, is legally watertight, as the core principles mentioned above are not legally capable of any rebuttal. That is one of the reasons why the future of: the court; international law; and of the international rules based system, are all in the balance. Legally, the judgment is a ‘no-brainer’, but let’s see what these judges decide.

Note added 28.01.2024 –

What SA’s counsel Vaughan Lowe KC argued: 1st – The exercise of the right of self-defence cannot justify or be a defence to genocide & 2nd – The prohibition of genocide is not an ordinary rule of international law: it is jus cogens – an overriding fundamental principle, at all times and without exception, for all humanity, I wrote – ‘provided the burden of proof has been discharged on the other threshold issues, i.e. ‘dispute; ‘jurisdiction’; ‘actus reus’; and ‘intention’, for which South Africa adduced overwhelming primary evidence from credible sources, including the Israeli Government and the IDF themselves, then it’s application for provisional measures which must satisfy the legal test of ‘plausibility’, is legally watertight, as the core principles mentioned above are not legally capable of any rebuttal.’ – My reading of the ICJ judgment is: 1. ‘Jurisdiction’ – has been accepted. 2. ‘Actus reus’ – the court accepted that SA’s case is plausible. So if Israel does not restrain itself SA can invite the court to issue further provisional measures [‘PM’]. Every PM ordered by the ICJ bangs a further nail into the coffin lid of Israel’s defence on actus reus. 3. ‘Intention’ – this will be a battleground at trial, however the court named 3 senior figures who have made statements inciting genocide. Therefore if Israel does nothing to investigate & prosecute it will be in breach of a provisional measure which its own ad hoc judge voted in favour of. So, the court is putting Israel to a test by calling its bluff. If Vaugham Lowe is correct on ‘jus cogens’ and I consider that he is, NB my blog on the same page about ‘jus cogens’, and what Israel’s counsel Malcolm Shaw KC wrote on p. 317 of the ‘8th edition of his book ‘International Law (2017) – ‘The [ICJ] in the Bosnian Genocide case reaffirmed in its Order of 8 April 1993 on provisional measures the view expressed in the Advisory Opinion on Reservations to the Genocide Convention that the crime of genocide “shocks the conscience of mankind, results in great losses to hummanity … and is contrary to the moral law and to the spirit and aims of the United Nation.”…’ In my blog I quote from an article by Criddle & Evan-Fox in which they state, ‘Lauterpacht asserted that peremptory norms derive their unique legal authority from two interrelated sources – international morality and general principles of state practice. In Lauterpacht’s view, overriding principles of international law may be regarded as constituting principles of international public order (ordre international public). These principles [may] be expressive of rules of international morality so cogent that an international tribunal would consider them forming a part of those principles of law generally recognised by civilised nations which the ICJ is bound to apply [under] it’s statute.’ So looking at Israel’s defence in the round, one plank i.e. jurisdiction has fallen away, another plank i.e. ‘actus reus’ may fall away within one month, a third plank i.e. ‘intention’ is being tested by calling Israel’s bluff, and on the technical issues of ‘jus cogens’ & ‘erga omnes’ Israel does not appear to have a plank to stand on. So if Israel maintains the intensity of its military operations in Gaza it will lose at trial, i.e. Israel is on track to be found guilty of the core international crime of genocide.

A state that is convicted of genocide has no place in the world order of ‘civilized’ states and may be expelled from membership of the United Nations. It that happens it will be designated as being a ‘rogue state’. A rogue state has no power in the UN to block the imposition of a two-state solution.

‘Cultural Genocide is the Elephant in the Room at the ICJ for the Global South’

‘In 1933, the very year when Hitler became Chancellor and a little more than a decade before Raphael Lemkin, a Polish lawyer of Jewish origin, coined the term “genocide”, Lemkin made a farsighted proposal. Motivated by aspirations of cultural diversity and multiculturalism, Lemkin abhorred the wilful and systematic destruction of a nation’s cultural and artistic works and the extermination of racial, religious, or social collectivities. These offences formed the basis of Lemkin’s definition in 1944, of genocide. … Lemkin initiated and promoted the 1948 Genocide Convention. … In Lemkin’s view, the deliberate destruction of culture – what he also described as a national pattern – was a fundamental act of genocide, which could also be a predicate of the systematic elimination of a people. His concept of cultural genocide was that it involved two phases: destruction of the national pattern or culture of an oppressed people, as a whole or in part, and replacement by the oppressor of its own national pattern or culture – that is, its own institutions and culture. Lemkin viewed this second phase as an attribute of colonisation, based on his studies of the Spanish Conquest in the Western Hemisphere. Accordingly, as an act of imperialism, everything from traditional folkways and language to cultural monuments would be wiped out and recast or rebuilt in the oppressor’s image. The final version of the Genocide Convention, however, makes no mention of cultural genocide … The decision not to explicitly prohibit cultural genocide resulted from several factors: first, the opposition of Western Hemisphere and Western Europe representatives … second, a more specific fear of some countries that their colonial and other treatment of minority peoples could be branded as cultural genocide. … Even so, despite the rejection of cultural genocide as an express target of the 1948 convention, the concept has nevertheless evolved into a secure concept in the discourse of international relations and will likely continue to evolve as an instrument of human rights and humanitarian discourse. Ironically, the Convention has been described as a ’seriously flawed document’ in part for one of its ‘major weaknesses’: the failure to include culture as well as social and political groups within its protective scope.’  (The Oxford Handbook of International Cultural Heritage Law’, pages  130-132). As I observed in an essay which you can read on the ‘International Humanitarian Law’ page at www.carlislam.co.uk, ‘Targeting cultural heritage is an act of power that legitimises one group while diminishing others and is often a precursor for the most offensive form of cultural destruction: genocide. Hence, there is an unspoken connection between:
1.    the deliberate destruction of cultural heritage as a strategy by an invading force in war and occupation;
2.    ethnic cleansing; and
3.    genocide.’

‘Intentional destruction of cultural heritage is not only a war crime it is also prima facie evidence of genocide.’

‘Israel is “intentionally destroying” cultural and historical sites in Gaza, the Euro-Med Human Rights Monitor said on Monday, calling for an international inquiry into Israel’s targeting of Palestinians’ cultural heritage.  The rights group pointed out that a significant portion of Gaza’s Old City, targeted in intense Israeli bombardments, is an area containing ancient residences, mosques, churches, markets, and educational institutions. The report highlights the damage to Gaza’s oldest mosque, the Al-Omari Grand Mosque, famed for its minaret dating back 1,400 years. It also mentions the destruction of three historic churches, among them the Church of Saint Porphyrius, which was originally constructed in around 407 AD. The Euro-Med Monitor also drew attention damage to the ancient Al-Balakhiya port and the Anthedon Harbour, archaeological sites dating back to 800 BC and listed on both the Islamic Heritage List and the preliminary World Heritage List.’ Israel ‘deliberately destroying’ cultural sites in Gaza (newarab.com)

See – As part of its genocidal war in Gaza, Israel destroys Palestinians’ cultural heritage (euromedmonitor.org)

In my essay ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’, which appears on the ‘Cultural Property Claims & International Humanitarian Law’ page at www.carlislam.co.uk I observe that ‘there is an unspoken connection between:

  1. the deliberate destruction of cultural heritage as a strategy by an invading force in war and occupation;
  2. ethnic cleansing; and
  3. genocide.’

The first draft of this essay was written in February 2023 and submitted to Foreign Affairs in New York. See also the ‘International Humanitarian Law’ and ‘Geopolitical Challenges’ pages at www.diplomaticlawguide.com. Based upon the arguments set out in the essay I would argue that the intentional destruction of cultural heritage by any state party [‘SP’] against any civilian population [‘CP’] is prima facie evidence of genocide. It therefore follows, that any other state (including civil servants and politicians), or any private person (including a company and its executives), who have in any way (including financing) been involved in the provision of arms to ‘SP’ in the knowledge that these weapons could be used to intentionally destroy the cultural heritage of ‘CP’, are all prima facie complicit, if a war crime is subsequently proven to have been committed by SP in a court of law or international tribunal.

‘War is as much about destroying cultures and identity as it is about killing people and seizing land’

This was a recurring theme at the  online conference ‘Reporting Heritage Destruction: A Double-Edged Sword?’ 15.11.2023 organised by the Endangered Cultural Heritage in the Global South (ECHGS) Hub, in the School of Archaeology of the University of Oxford. As you would expect the presenters were all leaders in their field, and their presentations were eye-opening. I concluded that there is an urgent need for more research, and teaching not only on mainstream university law, political science, international relations, and archaeology courses, but also for journalists and armed forces personnel, about the dynamic inter-relationship between:
(i)         protection of cultural property & heritage;
(ii)        the framework of protective principles under international humanitarian law;
(iii)       the framework of protective principles under human rights law;
(iv)       preservation & stability of the international rules based system and order;
(v)        human security;
(vi)       peace-building, geopolitical mediation, and negotiating political order;
(vii)     post-conflict transformation through a process of truth & reconciliation; and
(viii)    restitution & repatriation of cultural property.
This will be the subject of my next book, which I will start to research and write from January 2025. Perhaps, the book could also become the foundation for a future teaching course? Meanwhile, I would like to thank the organisers of the conference for a highly informative and thought-provoking day. One of the attendees, Maria Blyzinsky kindly sent me an article she had co-written with Tetyana Filevska entitled, ‘A Global Approach to Decolonizing Ukrainian Cultural Heritage’, published in Museum & Society earlier in the year, and I have included a link to the article on the ‘International Humanitarian Law’ page at www.diplomaticlawguide.com under ‘Articles.’ Extract – ‘Ukraine has been reclaiming its suppressed history since regaining independence in 1991. … Under Russian and Soviet rule, archives held by museums, libraries, government organizations and centres for academic research were censored, restricted, hidden or destroyed. Access to such information was only possible after 1991, resulting in a great rediscovery of knowledge. However, since the full-scale invasion of Ukraine … stories have emerged about the deliberate Russian destruction of cultural organizations, looting of heritage, and brutal treatment of cultural workers within temporarily occupied areas. As of 17 May 2023, UNESCO had verified damage to 256 cultural sites and counting, including museums, monuments, libraries and archives, as well as buildings of historic, artistic or religious interest. Such cultural obliteration is a recognized feature of wars globally. After all, war is as much about destroying cultures and identity.’

See – A Global Approach to Decolonizing Ukrainian Cultural Heritage | Filevska | Museum and Society

‘The UK Government is under a positive duty to ensure compliance by Israel with International Humanitarian Law’

‘[A]ll States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.’ ‘[Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 36 paras 158-159’]. Therefore, the UK Government is under a positive duty to ensure compliance by Israel with International Humanitarian Law. The duty is unequivocal, so there is no scope for ambiguity. I wonder, and perhaps an MP can ask this question in Parliament this week – has the UK Government been advised by the Foreign Office Legal Department that failure to perform this duty risks undermining the rule of law, and thereby jeopardises the stability of the global order which depends upon survival of the rule of law? Because we live in a geopolitically multi-polar and bifurcated world, playing fast and loose with international law or dismissing it at being irrelevant, is a dangerous path for politicians to choose, because as history shows, it clears the way for fascism. Mussolini compared accumulating power to ‘plucking a chicken one feather at a time, go slowly and no one notices’. ‘Democracies erode slowly, in barely visible steps. Many government efforts to subvert democracy are legal, in the sense that they are approved by the legislature or accepted by the courts. They may even be portrayed as efforts to improve democracy – making the judiciary more efficient, combating corruption, or cleaning up the electoral process. People do not immediately realise what is happening. Many continue to believe they are living under a democracy. Because there is no single moment- no coup, declaration of martial law, or suspension of the constitution -in which the regime obviously crosses the line into dictatorship, nothing may set off society’s alarm bells. Those who denounce government abuse may be dismissed as exaggerating or crying wolf. Democracy’s erosion is, for many, almost imperceptible. The tragic paradox of the electoral route to authoritarianism is that democracy’s assassins use the very institutions of democracy – gradually, subtly, and even legally – to kill it.’ – Google ‘Carl’s Mediation blog’ and use the search bar to find my blog ‘‘Sleep walking into fascism.’ That is why survival of the rule of law, by ensuring full legal compliance with IHL, is an existential priority for all democracies, and trumps any individual political allegiance.

‘Complicity In International Law’

The following is an extract from a Thesis written by Miles Jackson. There is a link to his Thesis under ‘Articles’. Miles Jackson is the author of ‘Complicity in International Law’ published by Oxford University Press (2015) – available from Amazon.
‘A significant part of Nuremberg’s legacy is the principle of individual criminal responsibility for violations of international law. Article 6 of the Charter of the International Military Tribunal at Nuremberg, signed by the United Kingdom, France, the Union of Soviet Socialist Republics, and the United States … provided for individual criminal responsibility for crimes against peace, war crimes, and crimes against humanity. It also set out the modes of participation in the crimes prohibited therein: Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. … The principle of individual criminal responsibility was reflected in identical terms in the statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda: A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. These are the forms of responsibility at the ad hoc tribunals—planners, instigators, orders, perpetrators, and aiders and abettors bear individual criminal responsibility. The forms of responsibility at the ICTR and ICTY constitute a more sophisticated approach than those at the post-Second World War tribunals. … In accordance with [the Rome] Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime.’

See also:

‘UK accused of seeking to block the international court of justice’

See: UK ‘seeking to block ICJ ruling’ on Israeli occupation of Palestine | Palestinian territories | The Guardian

‘The UK has been accused of “seeking to block the international court of justice (ICJ) from addressing important international humanitarian law matters” in a submission to the world court on the legality of Israel’s occupation of the Palestinian territories. … “[Assuming that the document is authentic] … this is a rather weak and uninformed document that portrays Israel’s longstanding occupation of the West Bank and Gaza, and its annexation of East Jerusalem, as a bilateral dispute between two states,” said Dr Victor Kattan, an assistant professor in public international law at the University of Nottingham who has written widely on the Israeli-Palestinian conflict. According to Kattan, the ICJ can issue an opinion on any legal question arising from the work of the UN, and the general assembly does not need Israel’s consent to refer a request to the court.

A senior Palestinian source … said: “The UK submission is a complete endorsement of Israeli talking points. They are not arguing that this is not the right time to go to the ICJ, because the peace process is working. They are saying the Israeli violations Palestinians point out are not as important as negotiation frameworks from decades ago.” Daniel Machover of Hickman & Rose solicitors in London, who has extensive experience in human rights litigation, said with the caveat that the document is authentic: “It is a matter of concern that the UK is seeking to block the court from addressing such important matters, something I am sure it would not do were the court asked to address comparable issues … such as Russia’s occupation of Ukrainian territory.” … Unlike other ICJ submissions seen by the Guardian, including those of France and Ireland, the UK statement makes no mention of the dire political situation in either Israel or Palestine. It also does not reference relevant UN findings since 2016 that Israel has repeatedly failed to fulfil its obligation to uphold the rights of the Palestinian people and violated international humanitarian law. … Israel has lambasted the ICJ referral, with its envoy to the UN … calling the general assembly vote a “moral stain” that delegitimises Israel. The last conclusive action related to Palestine at the ICJ was in 2004, when the court decided Israel’s West Bank security barrier was illegal. Israel rejected the ruling.’

See also:

‘International Humanitarian Law (“IHL”) prohibits the starvation of civilians as a method of warfare’

Deliberately depriving civilians of food as a method of warfare is a war crime, see Dapo, Akande and Emanuella-Chiara Gillard, ‘Conflict Induced Food Insecurity and the War Crime of Starvation of Civilians as a Method of Warfare: The Underlying Rules of International Humanitarian Law .’ (2019) 17 JICJ 753. ‘Derived from the principle of distinction, this rule appears for the first time in both additional Protocols of 1977 [API article 54(1); APII article 14] and, today, is considered customary law in both IAC’s and NIAC’s [CIHL rule 53]. The Rome Statute provides that “intentionally using starvation of civilians as a method of warfare” is a war crime in IAC’s. …. Arbitrarily denying humanitarian access in favour of civilians in need, or arbitrarily restricting the freedom of movement of humanitarian relief personnel will also constitute violations of the prohibition of starvation. …. Although sieges … have been condemned by the international community, they are not prohibited, even if they cause starvation, as long as the purpose is to achieve a military objective and not to starve the civilian population. At the same time, the prohibition of starvation implies that the besieging party must either allow the inhabitants to leave the besieged area or permit the free passage of humanitarian relief supplies. For example, in the context of the Gaza blockade, which led to harsh humanitarian consequences and food insecurity, the issue of starvation has been discussed by several commissions of enquiry. Although these discussions did not reach the same conclusions regarding the lawfulness of the blockade (terms of proportionality and on whether it amounted to collective punishment), none concluded that the blockade amounted to a violation of the prohibition of starvation as a method of warfare. The reason for this was that the starvation of the civilian population was not the sole and not even the main purpose of the blockade. This does not, however, relieve the blockading party from their obligation to take into account, when assessing the proportionality of incidental harm, any starvation which may be expected to result as an unwanted consequence resulting from the blockade.’ [‘The Oxford Guide to International Humanitarian Law’, edited by Ben Saul and Dapo Akande (2020) Oxford University Press, pages 248-249]. When is deliberately depriving civilians of food a war crime? Where is the line drawn? What if e.g. 42% of the besieged population have no political allegiance to the hostile population, the elimination of which is the primary military objective of the blockading party? If a siege is disproportionate because of the scale of collective punishment and suffering, is the inextricably consequential starvation of civilians a war crime? When can starving an entire civilian population be justified in International Law?

‘Volker Turk, the U.N. High Commissioner for Human Rights, told the New York Times Thursday that “the imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law.” Tom Dannenbaum, an expert on siege law at Tufts University, affirmed this assessment, describing Israel’s policy as an abnormally clear-cut instance of starving civilians as a means of war, an unambiguous violation of human rights’. See: https://nymag.com/intelligencer/2023/10/the-u-s-is-giving-israel-permission-for-war-crimes.html#:~:text=Tom%20Dannenbaum%2C%20an%20expert%20on,unambiguous%20violation%20of%20human%20rights.

See also:

Customary IHL – Rules (icrc.org)

Ex-Israeli Negotiator to BBC: ‘You’ve Lost Sight Of Humanity’ Over Indiscriminate Gaza Bombing (msn.com)

Excerpt:

‘He continued: “Do you think terrorist organisations embedded in populations who are denied their most basic rights are ended once and for all in a military campaign? Does that happen in history? Can someone credibly tell me that when the leadership of a country says we are cutting off food, electricity, water, all supplies to an entire civilian population that they’re targeting militants?”

“I’m sorry these kinds of lies can’t be allowed to pass. And when you tell yourself the lie, it leads to the wrong policy,” he said.

“If anyone told me that what the militants did on the weekend was a legitimate response to years and years of occupation. I would say: ‘No, you’re wrong headed. You’ve lost sight of humanity and reality,’” Levy rationalised. “And if anyone tells me that what Israel is doing in Gaza today is a legitimate response to what happened on the weekend, it’s exactly the same.”

“And yet they are saying it,” he closed. “And yet the international community is, and people need to challenge them on it because it’s a lie and we’re war mongering if we allow them to get away with it.”

[Daniel Levy served a notable role in the history of peace process relations between Israel and the Palestinians, working as an Israeli peace negotiator during crucial talks at Taba Summit in 2001 and also at the Oslo-B talks in 1994. He is currently the president of the U.S./Middle East Project, an organisation committed to advancing peace in the region]’

‘For a war crimes suspect nowhere is safe’

‘All war crimes are crimes for which there is universal jurisdiction, so that any State can prosecute them. The most authoritative and convenient, list of war crimes, committed in international or internal armed conflicts, is now to be found in the ICC statute. The defence that an accused was acting under the order of a superior is available only in very limited circumstances.’ Handbook of International Law, by Anthony Aust (formerly legal advisor to the Foreign and Commonwealth Office).

For a war crimes suspect nowhere is safe, because all war crimes are crimes for which there is universal jurisdiction. Therefore, any State can prosecute them, i.e. they can be prosecuted anywhere and everywhere.

Once the ICC has issued an arrest warrant against a person [‘P‘] suspected of war crimes, the rhetorical question that those who belong to the same political elite or who associate with P need to ask themselves is – ‘Will I be next?’

States retain the primary responsibility in the prosecution of international crimes. Under the Geneva Conventions and Additional Protocol I of 1977, States must prosecute people accused of war crimes before their own national courts or extradite them for trial elsewhere.

See also:

Head of State Immunity is Too Important for the International Court of Justice – Just Security

Heads of State Immunities, International Crimes and President Bashir’s Visit to South Africa in: International Criminal Law Review Volume 18 Issue 4 (2018) (brill.com)

SUN7%B1:9129BK–01I:0001-K (ejil.org)

Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova | International Criminal Court (icc-cpi.int)

Putin Wanted by International Criminal Court Over Alleged War Crimes in Ukraine (foreignpolicy.com)

What does the ICC arrest warrant for Vladimir Putin mean in reality? | Vladimir Putin | The Guardian

House of Lords – In Re Pinochet (parliament.uk)

International Court of Justice – Hearings & Decisions

Written Statement of the League of Arab States at the ICJ 26.02.2024:

Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem
(Request for Advisory Opinion)
International Court of Justice
Written comments on the written statements made by States and organizations
League of Arab States
25 October 2023
2
TABLE OF CONTENTS
1. Introduction ………………………………………………………………………………………………………….. 3
2. Applying the international legal framework: recap of the position on illegality and its consequences, and the prior determinations on which this is based ……………………………… 4
2.a. Illegality and its consequences…………………………………………………………………… 4
2.b. Prior legal determinations on which the determination of illegality is partly based ……………………………………………………………………………………………………… 5
3. The argument that the ordinary operation of the international legal framework, as outlined above, has been/should be departed from, and this has implications for whether the Court can exercise jurisdiction, and whether the occupation is existentially illegal ………………… 5
3.a. The argument ………………………………………………………………………………………….. 5
3.b. The continued ordinary operation of international law during and in the settlement of international disputes ……………………………………………………………. 6
3.c. Oslo does not legalize the existence of occupation ………………………………………. 8
3.c.i Oslo’s provisions concerning the Israeli presence in the West Bank and the existence of certain Palestinian institutions of self-governance ……………… 8
3.c.ii Coerced consent through illegal use of force ……………………………………….. 9
3.c.iii Conflict with peremptory norms ………………………………………………………. 11
3.c.iv Voiding: entire accords, or only certain provisions? ……………………………. 12
3.c.v Oslo does not legalize the existence of the occupation………………………… 15
3.d. The relationship between the Court’s advisory jurisdiction and peace negotiations …………………………………………………………………………………………… 15
4. Situation before the Court is multilateral in character ………………………………………………. 17
5. The Court is capable of addressing a complex and long-running situation, in its entirety, and, indeed, in doing so it would discharge an indispensable function under the UN Charter……………………………………………………………………………………………………………….. 20
6. The applicability of Palestinian self-determination to the territory of the West Bank (including East Jerusalem) and Gaza, and the significance of this to the (il)legality of the occupation and to the implanting of settlements………………………………………………………. 23
6.a. Fiji’s argument: only Israel has an international legal entitlement concerning the enjoyment of sovereignty and related matters linked to the territory of the West Bank and Gaza ………………………………………………………………………………………. 23
6.b. Implications and consequences of the argument…………………………………………. 25
6.c. Mandate arrangements vest a sovereign entitlement over the land between the Jordan river and the Mediterranean Sea in the Palestinian people and not in Israel …………………………………………………………………………………………………….. 27
7. The illegality of the existence of the occupation according to the jus ad bellum ………….. 32
3
1. Introduction
1.
This response addresses certain matters arising out of the written statements made by states and other organizations in relation to the case. It is partly linked to, and should be taken in conjunction with, the written statement to the Court by the League of Arab States, dated 20 July 2023 (referred to herein as ‘the written statement’).
2.
The response begins in section 2 by summarizing, by way of a recap of what is set out in the written statement, the position on the illegality of the occupation, its consequences, and the prior legal determinations on general matters on which this position is partly based.
3.
In section 3, it then addresses the suggestion made in a few of the written statements that the ordinary operation of the international legal framework, as outlined in section 2, has been/should be departed from.
a.
These written statements suggest that the commitment to a settlement process, including through the Oslo accords (Oslo), has somehow suspended the operation of the ordinary application of international law to the occupation, in that it has rendered certain key matters that would be determined by such application subject to determination only by what is agreed in a settlement process. On this basis, it is suggested that the question of the legality/illegality of the occupation is not something to be determined in the manner outlined in section 2, and that it would be inappropriate for the Court to engage in any determination of this question. More specifically, it is also suggested that the Oslo accords legalized the existence of certain elements of the occupation, and that this trumps the position on the question of the legality/illegality of the occupation that would be arrived at according to the approach outlined in section 2.
b.
It will be explained that both of these positions are incorrect, not least because they fail to account for the continued operation of international law during any process of dispute settlement and, indeed, how respect for that is embedded as a legal principle applicable to such a process as a matter of the UN Charter. The correct, and complete, international law framework applicable to determine the legality/illegality of the occupation is as summarized in section 2. More specifically, Oslo does not provide legal cover for the existence of the occupation. The existence of a commitment to a settlement process does not pose any legal impediment to the Court’s exercise of its discretion to exercise jurisdiction over the case. Indeed, suggestions to the contrary risk compromising the Court’s judicial function, potentially co-opting the Court in a political manoeuvre aimed at benefiting one side in a dispute—Israel—by enabling the meaning and application of the general international law framework to the occupation to be concealed in a manner that is to the advantage of Israel and to the detriment of the Palestinian people.
4.
Section 4 addresses the suggestion made again by a few written statements that the situation before the Court is somehow exclusively or essentially a bilateral dispute, and that this has implications for whether the Court should exercise its discretion to answer the question put to it by the General Assembly. It will be explained how this is manifestly not the case, and to suggest otherwise is to downplay the centrality of the situation at issue to the global public interest, as reflected in the involvement of the United Nations across all
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of its organs and agencies, including the present Court, since the creation of the
organization. This is also reflected in how, as set out in the written statement, the areas of international law violated by Israel in both the existence and conduct of the occupation are all those that have erga omnes status and are thus by definition not only bilateral but also multilateral in nature.
5.
Section 5 responds to the suggestion that the question requires the Court to address matters that are so complex, requiring so much information, and covering such a long period of time, that this is, essentially, too much for the Court to handle. In consequence, either jurisdiction should not be exercised at all, or the Court should make things more manageable by cherry-picking certain discrete matters covered by the question while leaving other matters covered by it unaddressed. This suggestion has no merit in the face of the Court’s jurisprudence, and given the pressing need for the situation before it to be addressed in its entirety, so that the Court can assist the General Assembly to discharge its functions under the UN Charter to deal comprehensively with matters that directly implicate the purposes and principles of the UN Charter.
6.
Section 6 responds to the suggestion in the written submission of Fiji that the legal effect of the League of Nations Mandate Agreement for Palestine is to provide an international legal entitlement on the part of Israel to the entire territory between the Jordan river and the Mediterranean Sea, in terms of both sovereignty and Jewish settlement. The effect of this argument is that there is no territorial basis for the Palestinian right of self-determination, and, in consequence, there is no legal bar to the occupation, annexation and Jewish settlement on all or part of the West Bank (including East Jerusalem) and Gaza. This constitutes the complete opposite of the correct position in international law, which is that the Palestinian people have what is in effect a right of external self-determination on the basis of Article 22 of the Covenant of the League of Nations (as well as, separately, on the basis of the right of self-determination that emerged in international law applicable to people in colonial territories generally in the middle of the twentieth century), and this right was not somehow legally replaced by a somewhat equivalent right vested in the Jewish people by the Palestine Mandate Agreement.
7.
Section 7 addresses the applicability of the jus ad bellum to the occupation, and why it does not meet the test for legality, in response to the suggestion in the written submission of Fiji to the contrary.
2. Applying the international legal framework: recap of the position on illegality and its consequences, and the prior determinations on which this is based
2.a. Illegality and its consequences
8.
As set out in the written statement, the occupation is existentially illegal as a matter of the international law on the use of force (and as such constitutes an aggression), and the law of self-determination. Therefore, it needs to be terminated immediately. Both areas of international law being breached by the continued existence of the occupation have jus cogens status in international law. One aspect of the existential illegality of the occupation is that those aspects of the occupation involving purported annexation, whether de jure or
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de facto
, are illegal; the existence of the occupation on the basis of such purported annexation is illegal; and the purported annexation is without legal effect. One consequence of the foregoing is that in the absence of a termination of the occupation, the Palestinian people have a legal right to resist its existence. The occupation is also illegal in the way it is conducted, notably in terms of the abusive and discriminatory treatment of the Palestinian people, the implanting of and support given to Jewish settlements, and the prevention of the right of Palestinian people to return. This illegality must also end immediately, for example by Israel ceasing all abusive and discriminatory treatment of the Palestinian people, removing all settlers and settlements, and allowing Palestinian people to return.
2.b. Prior legal determinations on which the determination of illegality is partly based
9.
The foregoing position on illegality and its consequences is based on legal determinations of prior, more general matters. These include the following:
a.
The Palestinian people have a legal right of external self-determination.
b.
The West Bank (including East Jerusalem) and Gaza are part of the sovereign territory of the State of Palestine and the Palestinian people as a self-determination unit.
c.
The West Bank (including East Jerusalem) and Gaza are not part of the sovereign territory of Israel. Israel’s exercise of control over this territory is therefore that of a non-sovereign over land that is the sovereign territory of another international legal person.
d.
In consequence, Israel is legally prohibited from annexing all or part of this land.
e.
Also in consequence, the legality of the existence of Israel’s exercise of control over this territory falls to be determined according to the law of self-determination and (because the control is effected through the use of military force) the law on the use of force.
f.
Also in consequence, the applicable law governing the legality of the conduct of Israel’s exercise of control over this territory is occupation law plus international human rights law (on the basis that the latter applies extraterritorially and the test for extraterritorial applicability is met).
g.
The Palestinian people have a legal right to return.
h.
The Palestinian people have a legal right to resist the existence of the occupation, given that the occupation constitutes a violation of their right to self-determination.
3. The argument that the ordinary operation of the international legal framework, as outlined above, has been/should be departed from, and this has implications for whether the Court can exercise jurisdiction, and whether the occupation is existentially illegal
3.a. The argument
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10.
A small number of written statements in the present proceedings seem to suggest that in consenting to, and continuing to affirm the operation of, the Oslo peace agreements, the PLO as the representative of the Palestinian people somehow consented to an alteration in the operation of the international legal framework as it applies to the determination of the legality/illegality of the occupation, and/or the prior determinations of general matters on which that determination of legality/illegality is partly based. Insofar as the Oslo process was and continues to be endorsed at the United Nations and by certain other States, it is also seemingly suggested that the UN and these States have endorsed the supposed alteration.
11.
The supposed alteration has two elements, the first is relatively general, the second is relatively specific.
12.
In the first place, a few of the written statements suggest that some of the prior determinations of general matters on which the determination of legality/illegality would be partially based, as outlined above, have been made subject to the outcome of peace negotiations. The statements argue that because the Oslo accords provide for these matters to be addressed in peace negotiations, it would not be appropriate for the Court to pronounce upon them. As a result, the Court cannot make a determination on the illegality of the existence and the conduct of the occupation, because to do this it would have to determine matters which, it is said, have been left to negotiation.
13.
In the second place, more narrowly, a few of the written statements suggest that since the terms of the Oslo accords purport to provide for certain aspects of the Israeli presence in the Palestinian territory to operate for an interim period, this permits the existence of the relevant aspects of the presence as a matter of international law. Thus, the position on the existential illegality of the occupation is different from that arrived at from applying the general international law framework as indicated above. Oslo essentially derogates from that, rendering lawful what would otherwise be illegal.
3.b. The continued ordinary operation of international law during and in the settlement of international disputes
14.
If the Palestinian people had no collective right to external self-determination in international law, it would indeed follow that the question of the existence of the occupation would not be a matter of such legal rights, and any legal arrangement on this question would only be rooted in something agreed to by Israel in negotiations.
15.
However, as the present Court itself has affirmed in the Wall advisory opinion, it is universally accepted that the Palestinian people do indeed have a right of external self-determination, a legal position that no written statement in the present proceedings has challenged, and most have affirmed. This has implications for the status of the West Bank (including East Jerusalem) and Gaza, and thus the legality of Israel’s occupation of that territory, in both its existence and conduct. These implications have been outlined above.
16.
The question is whether the representatives of the Palestinian people somehow agreed to put the full scope of application of the right of self-determination aside by agreeing to and continuing to affirm the Oslo accords. And whether this therefore abrogates the effect of
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the right of self
-determination on the existential legality of the occupation, and the prior issues on which a determination of such legality is partly based (such as the question of the status of the West Bank (including East Jerusalem) and Gaza).
17.
However, when States and peoples participate in processes of dispute settlement, including negotiation, which concern matters implicating their rights under international law, this does not mean that they have given up those rights. While a negotiation process might eventually lead to a party agreeing to modify the scope of and even give up certain rights, and while reaching this outcome might be understood by some to be the purpose of the negotiations (cf. ‘land for peace’), this should not be confused with the idea that these rights do not exist in the first place, or that the party has somehow renounced them by entering into a negotiation about whether a concession might be made.
18.
The Palestinian people have continued to be entitled to their right of external self-determination in international law, in its full, ordinary meaning and scope, and the implications of this for the other prior issues on which determinations of legality/illegality partly depend, such as the status of the West Bank, including East Jerusalem, and Gaza, have continued to operate, throughout the period when Palestinian representatives entered into agreements such as the Oslo accords, and participated in negotiations. It follows, then, that agreements and negotiations have left unchanged the general international law framework applicable to the legality of the existence and the conduct of the occupation, and the prior legal determinations on which a determination of such legality is partially based. For example, the fact that the question of whether the Palestinian people should give up sovereignty over parts of the West Bank, including East Jerusalem, in favour of Israel, in return for a permanent peace agreement (‘land for peace’), has been and may be discussed in negotiations does not mean that the Palestinian people’s sovereignty over all or parts of that land has thereby already been somehow terminated or suspended. Israel’s presence on the land continues to be, as the Court held in the Wall Advisory Opinion (issued post-Oslo), that of a non-sovereign occupier. The existential legality of this occupation falls to be determined according to the standard international legal framework of the law on the use of force and the law of self-determination.
19.
The continued operation of international law during any process of dispute settlement, including negotiation, is a necessary consequence of the rule of international law itself.1 This is reflected in the international law of dispute settlement including within it a requirement that, in the words of the UN Charter, Art 2(3):
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered (emphasis added).
It is also reflected in the fact that, under Article 1(1) of the UN Charter, one of the purposes of the United Nations is to bring about “the adjustment or settlement of international
1 See, e.g., the written statements in the present case of Bangladesh (“International law must dictate the terms of any future solution to the plight of the Palestinian people. The Palestinian people must not be compelled to negotiate their freedom in the face of unlawful conduct”) (para. 8), and Norway (expressing a “preference for a negotiated, peaceful two state solution within the framework of international law”) (p. 2).
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disputes or situations which might lead to a breach of the peace” in “conformity with the principles of justice and international law”.
20.
It follows that all States, as subjects of international law, and those States who are parties to the UN Charter, are legally committed to respecting the full, normal operation of international law during any process of dispute settlement. And insofar as the United Nations is involved in and/or takes a position on any such process, this must necessarily be on the basis that the process itself does not and cannot involve the suspension of the ordinary operation of international law to the matters it is concerned with. The powers of UN Organs are limited by the purposes and principles of the Organization, as set out in the UN Charter, including, therefore, the foregoing stipulation concerning dispute settlement having to be in conformity with the principles of justice and international law. Notably, when it comes to the Security Council in particular, there is a dedicated Charter provision linking its powers to the purposes and principles of the UN. Under Article 24(2), the Council “shall act in accordance with the Purposes and Principles of the United Nations.”2 The significance of dispute settlement processes being in conformity with international law for the UN in general, and as it relates to the very issue under present evaluation in particular, was underlined by the present Court, when in the Wall Advisory Opinion it drew the General Assembly’s attention “to the need for…efforts to be encouraged with a view to achieving as soon as possible, on the basis of international law, a negotiated solution” (emphasis added) (p. 201, para. 99).
21.
As usual, the present Court is being asked to address a question put to it by a fellow principal UN organ on the basis of this understanding of the operation of international law when a dispute settlement process (in addition to that operated by itself under its contentious jurisdiction) might also be in play, bearing in mind that its function is to apply international law, and that it exists and operates as a principal UN organ on the basis of powers given to it by the UN Charter.
3.c. Oslo does not legalize the existence of occupation
3.c.i Oslo’s provisions concerning the Israeli presence in the West Bank and the existence of certain Palestinian institutions of self-governance
22.
At the time of the present written comments, the legal operability of the 1993/5 Oslo accords as a general matter continues to be affirmed by the representatives of the Palestinian people (as well as Israel).
23.
The accords purport to provide for certain aspects of the Israeli presence in the Palestinian territory to continue for an interim period. They also provide for a degree of reduction by Israel of authority in certain areas, and, in consequence, enable certain self-governing
2 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 13 September 1993, Separate Opinion of Judge ad hoc Lauterpacht, I.C.J. Reports 1993 p. 325 at p. 440, para. 101 and Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, Dissenting Opinion of Judge Weeramantry, I.C.J. Reports 1992, p. 3 at p. 61-5 (addressing the specific purpose and principle at issue, concerning international law and dispute settlement in Art. 1(1)).
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Palestinian institutions to operate in these areas, even if still subject to the occupation as
whole.
24.
The Palestinian people and their representatives do not depend on Oslo for their legal entitlement to exercise such prerogatives and functions. They enjoy this entitlement, which, moreover, extends to the entirety of the Palestinian territory and not just those areas provided for under Oslo, as a matter of their right to self-determination in international law. Equally, Israel’s legal obligation to permit these administrative prerogatives and functions does not depend exclusively on Oslo. In any case, it has an obligation under the law of self-determination to permit them and more broadly to permit Palestinian self-administration throughout the entirety of the West Bank (including East Jerusalem) and Gaza. Oslo amounts, then, to a treaty-based legal obligation on Israel to engage in a very partial reduction in its impediment to Palestinian self-determination, while at the same time also being obliged, as a matter of the international law of self-determination, to end the impediment completely by withdrawing entirely its control from all the Palestinian West Bank, including East Jerusalem, as well as Gaza.
25.
Oslo does not legalize the existence of the occupation. The agreement of the representatives of the Palestinian people to Oslo was procured by Israel in the context of an illegal use of force, and the provisions in Oslo purporting to permit Israel to maintain its presence in the Palestinian territory are contrary to peremptory norms in international law. The consequence of these two factors, both individually and together, is that those provisions purporting to legalize the occupation in Oslo are void (even if the accords as a general matter remain in force).
3.c.ii Coerced consent through illegal use of force
26.
The accords were agreed to by the PLO in the context of the already-existing occupation, being conducted by the other party to the accords, which, as indicated, was and is an unlawful use of force.
27.
In a provision reflective of the position in customary international law, the Vienna Convention on the Law of Treaties (VCLT) stipulates in Article 52 that “a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations”3. This rule, which the VCLT (using its State-centric language, which can be applied here to a non-State self-determination unit) characterizes (in the same Article) as arising in the context of “coercion of a State by the threat or use of force”, reflects the policy position that a State should not be able to use force illegally to gain advantages that would not be obtainable, or would be less easily obtainable, through peaceful means. The lack of such a rule would risk greater recourse to war internationally. The effort to limit war to narrow circumstances of self-defence, in order, in the opening words of the UN Charter, to “save succeeding generations from the scourge of war”, presupposes and requires not only that such a doctrine of recourse to force as a means of self-help is itself illegal, but also, to bolster this, that provision is made to deny a State the advantages enabled by illegal war. This is the reason why the use of force to annex territory is not only a violation of the international law on
3 Vienna Convention on the Law of Treaties, 22 May 1969, 1155 U.N.T.S. 119.
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the use of force
(hence Israel’s acts of annexation are illegal as breaches of this area of law), but also, in terms of the law of title to territory, treated as a nullity (hence Israel is not sovereign over those areas it has purportedly annexed, like East Jerusalem).
28.
As set out in the written statement, the existence of the occupation is not only a means, in certain areas, of Israel purporting to assert de jure annexation (and so for Israel this is not an occupation, but an ostensible assertion of sovereignty or at least control over territory in relation to which it claims it has a sovereign right). It is also more generally a means through which Israel establishes ‘facts on the ground’ to gain advantages when negotiating the terms of any agreement, including insofar as provision might be made for Israel to acquire territorial sovereignty over parts of the Palestinian territory. One such advantage is that the basic fact of this domination manifestly places the Palestinian people in an egregiously weak position when it comes to negotiations on any agreement, whether for an interim or final status. This is especially true when the agreement in question, as here, is about the very nature of that domination itself, i.e., re-configuring how the occupation will operate.
29.
Representatives of a dominated people were negotiating and supposedly agreeing with the State exercising domination over them about the terms of domination, in the context where this particular form of domination was prohibited by international law as an illegal use of force, and, moreover, on the basis that the domination would not end, but be simply reconfigured, albeit ostensibly on an interim basis. Thus, there is an unbroken continuation and correspondence between the activity the accords provided for on the part of Israel, and Israel’s already-existing illegal use of force. This is a perverse situation where a State is using force illegally to coerce the object of that force to agree to an arrangement that amounts to a continuation, in partly reconfigured form, of the illegal use of force. An immediate and automatic end to the illegal use of force—the occupation—which was not only what the Palestinian people wanted (and want), but also what international law required, was not an option.
30.
It will be recalled that in the Chagos Advisory Opinion, the present Court noted that
Heightened scrutiny should be given to the issue of consent in a situation where a part of a non-self-governing territory is separated to create a new colony … it is not possible to talk of an international agreement, when one of the parties to it, Mauritius, which is said to have ceded the territory to the United Kingdom, was under the authority of the latter (p. 137, para. 172).
Oslo did not of course provide for part of the Palestinian territory to form part of Israeli sovereign territory. But it did purport to provide for a significant part of this territory to remain under Israeli control, a situation that can look and be experienced as if Israel does enjoy sovereignty in the sense of legal title (and, as addressed above and in the original written statement, can be a means through which Israel maintains ‘facts on the ground’ in order to bolster a sovereignty claim). The underlying logic behind the Court’s caution that “heightened scrutiny should be given to the issue of consent” is applicable, given that the Palestinian territory “was under the authority” of Israel when the accords were adopted.
31.
Given that much of international law operates on the basis of a fiction of sovereign equality despite de facto inequality, treaties between unequal parties are not necessarily invalid for
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that reason. But one red line is when the powerful party, as here, is subjugating the other
party in a particular manner—through an illegal use of force—in a way that has so compromised the freedom of action of that other party when it comes to their consent to the agreement, that the agreement can be understood to have been “procured” through that particular form of subjugation. The Oslo accords meet this test. Indeed, their procurement in the context of the occupation constitutes a manifest and egregious form of coercion. At stake here is the integrity of the global rules on the use of force, and the legal prohibition on using force on a broad self-help basis.
32.
Does this mean that the entire accords are void, or only those provisions in them that are to the disadvantage of the Palestinian side whose consent was procured through the illegal use of force? This matter will be addressed below, alongside an equivalent matter arising out of the conflict between certain stipulations in Oslo and peremptory norms in international law.
3.c.iii Conflict with peremptory norms
33.
The right of self-determination and the prohibition of aggression that are breached through the existence of the occupation are, as explained in the written statement, peremptory norms of international law. In the light of this, the provisions of the Oslo accords that purport to provide authority for Israel to maintain its presence in certain areas of the Palestinian territory conflict with peremptory norms in the following ways:
a.
In the first place, fundamentally, by purporting to legalize something which is prohibited by these peremptory norms.
b.
In the second place, by, enabling Israel to use its illegal occupation (via the coercive effect as outlined above) to gain the advantage of legal cover for maintaining the occupation which would have not been possible, or would have been more difficult, had the illegal occupation not been in existence at the time the accords were negotiated and agreed. Insofar as they place this advantage on an international legal footing, the accords conflict with the legal prohibition on the use of force preventing a State from using force other than in self-defence, i.e., the prohibition of its use by Israel to gain these advantages.
c.
In the third place, as indicated above, the relevant provisions enable Israel to obtain legal cover for its coercion, through the illegal use of force, of the representatives of the Palestinian people into ‘accepting’ the arrangements they contained. This is incompatible with the legal right of self-determination, since according to that right, such acceptance must be freely given. For this reason of bypassing meaningful consent alone, the provisions conflict with the right of self-determination. This is then aggravated by the fact that the arrangements the provisions are concerned with involve, in substance, a continued limitation of the Palestinian people to engage in self-administration. It is striking that this needs to be stated, but coercing a people with a right of external self-determination through an unlawful denial of this right of self-determination (the occupation) to accept a modified continued form of that denial is a violation of that right.
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34.
The Oslo accords do not have jus cogens status. They, therefore, must be interpreted in a manner that is compatible with the peremptory character of norms prohibiting the existence and conduct of the occupation by Israel, with any contradictions resolved in favour of the peremptory norms. The approach here is the same as that addressed earlier in terms of the coerced nature of the Palestinian acceptance of the accords: voiding. The VCLT takes the same approach here as it does, in Article 52, on the earlier matter. Article 53, also understood to reflect the position in customary international law, stipulates that “a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”4 The same question that presented itself on the earlier issue is therefore present here: does this mean the entire treaty is void, or only those provisions contrary to jus cogens norms? This question will now be addressed in relation to both issues.
3.c.iv Voiding: entire accords, or only certain provisions?
35.
A common issue presents itself from the position that the conclusion of the Oslo accords was brought about through an illegal use of force, and that the provisions of the accords that permit Israel to maintain certain forms of authority over the Palestinian territory conflict with peremptory norms of international law: does this mean that the accords are void in their entirety, or only certain provisions in them?
36.
The relevant provisions of the VCLT are, as indicated, Articles 52 (on coerced consent) and 53 (on conflict with peremptory norms). (Article 44 of the VCLT, concerned with particular circumstances where a party to a treaty might “denounce, withdraw from or suspend the operation of the treaty” stipulates that “in cases falling under articles…52 and 53, no separation of the provisions of the treaty is permitted.” This is irrelevant to the present matter, which concerns the meaning and operation of the treaty irrespective of whether or not a party has purported to denounce/withdraw/suspend the operation of it.)
37.
Articles 52 and 53 of the VCLT refer to the “treaty” being “void”. Applying the principles of treaty interpretation, themselves set out in the VCLT (Article 31), to these provisions requires a term in a treaty to be given an “ordinary meaning” in its “context” and “in the light of” the “object and purpose” of the treaty, and, in addition to context, it is necessary to take “into account”, inter alia, “relevant rules of international law applicable in the relations between the parties”.
38.
Rendering the accords void in and of themselves, and, necessarily, ab initio, would necessarily void the obligations that Israel has under them which, as indicated above, permit a degree of self-administration by the Palestinian people in certain areas. Although, as explained, the right of the Palestinian people to self-administration does not depend, legally, on Oslo (being derived from their self-determination right in international law, which would remain unchanged), nonetheless there is a benefit to them, in terms of the limited exercise of self-determination, insofar as Israel enables this limited exercise because it is stipulated in the accords rather than because it is obliged to do so in general international law. Voiding the accords as a whole, and therefore voiding these obligations on Israel, would risk loss of this this benefit, insofar as Israel’s behaviour is linked to the presence or absence of these lex specialis obligations as distinct from its obligations under
4 Vienna Convention on the Law of Treaties, 22 May 1969, 1155 U.N.T.S. 119.
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international law to end the occupation. That said, if the accords are void in their entirety,
this would take with it the provisions that purport to permit Israel to maintain the occupation in those areas where authority has not been transferred to the representatives of the Palestinian people.
39.
As indicated, the “context” for the legal rule of treaty law on voiding when there is coercion through illegal force (reflected in Article 52 of the VCLT) is that one party is not to be permitted to obtain a benefit from the other party, and that other party is not to be subjected to a detriment by the first party (including in the benefit to the former, if relevant), through coercion by the former over the latter through the illegal use of force. The international law rules on the use of force are, of course, “relevant rules of international law applicable in the relations between the parties”. Such a benefit/detriment matrix can operate consistently across and thus at the level of the treaty in its entirety, in which case the approach of voiding the treaty itself is warranted. But where, as here, a party is coerced through the illegal use of force to agree to a treaty, and is subject to provisions in that treaty partly to its detriment but also partly to its benefit, the automatic approach of drastic treaty-wide voiding only captures the (unfair, because of illegal coercion) detriment and does not also account for the benefit. A more sound approach is that the voiding occurs more specifically to those things in the treaty that are to the detriment of the coerced party, leaving intact those other things that are to its benefit. Thus, Oslo has to be interpreted in a manner that preserves Israel’s obligations to enable certain elements of Palestinian self-administration, but voids those elements that permit Israel to maintain its own presence in the Palestinian territory.
40.
The “context” for the legal rule of treaty law on voiding where there is a conflict with peremptory norms of international law (reflected in Article 53 of the VCLT) is, as stated by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in the Furundžija case, that jus cogens norms possess
a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.5
Such an approach is necessarily concerned with the rules that have a “higher rank” only. And it is only concerned with a situation where such rules, or their operation, would be derogated from. This has two consequences for the Oslo accords.
41.
In the first place, it only requires that the provisions that purport to legalize the continuation of the occupation are invalidated.
42.
In the second place, the concern it has for upholding and protecting the existence and operation of peremptory norms necessarily means that those other parts of Oslo that do involve a partial implementation of the right of self-determination of the Palestinian people must be upheld and cannot be invalidated. To be sure, as indicated above, if Oslo was void in its entirety, including these other key parts, the Palestinian people would still have their
5 Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgment, Trial Chamber, 10 December 1988, para. 153.
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legal
right to be free of the occupation, since this right does not depend on Oslo for its existence. Nonetheless, the partial supplementary normative weight of Oslo is significant for the reasons indicated above. Taking this away, then, would amount to the removal of an additional guarantee of compliance with a partial aspect of a right that has peremptory status. If the right itself is peremptory, then a guarantee of compliance has to enjoy the same status. Given this, the logic behind a rule such as that in VCLT Article 53 requires the rule to be applied in a way that does not have any knock-on negative consequences for the enjoyment of rights with peremptory status. This requires that only those provisions that violate peremptory norms are void, with the other provisions that provide for a partial realization of the rights that have peremptory status remaining in force.
43.
The correct approach to these two areas of voidability, then, is the same for each: voiding those parts of Oslo that permit Israel to maintain its presence in the Palestinian territory in particular, rather than the accords as a whole.
44.
It might be said that this approach would run counter to the principle of consent that is embedded in treaty law (and thus part of the “object and purpose” of the VCLT that needs to be accounted for when interpreting Articles 52 and 53), in that the state using illegal force to coerce another party to agree to things that are to its benefit, and which breach peremptory norms, necessarily gave its own agreement to the treaty on the basis of those benefits and breaches being in it. Thus, Israel cannot be considered to have consented to the Oslo accords if those benefits and breaches are void. The accords therefore have to be void in their entirety.
45.
Such an approach is based on a particular logic concerning reciprocal, bilateral benefits and detriments in treaties that fails to account for the broader context in which some treaties, as here, are adopted, and the international law framework applicable in that broader context. When a treaty involves a deal between two parties enshrining reciprocal rights and obligations of those parties exclusively—i.e. rights and obligations operating mutually, being owed by one to the other, and vice versa—it is always a challenge to unpack the treaty and potentially void certain provisions of benefit to one party, bearing in mind how that party being given these benefits might be linked to its willingness to accept certain other parts of the treaty that are to its detriment. Any unpacking risks disrupting the cost/benefit balance that was the basis for that state agreeing to the treaty in the first place.
46.
But treaties are rarely adopted in a legal vacuum whereby the matters they are concerned with are not already the subject of international legal rules. And the Oslo accords were certainly not adopted in such a vacuum. Indeed, as ostensibly part of a process of dispute settlement, they must, as explained above, conform with the applicable general international law framework. If the accords were void in their entirety, the position in international law would be (as it is) that the occupation is existentially illegal, meaning that Israel has no valid legal basis to exercise any authority anywhere in the Palestinian territory. And Israel would have a positive obligation to allow the Palestinian people to exercise full control over that territory. By contrast, if Oslo continues to operate with those provisions in it purporting to provide Israel legal cover to maintain certain forms of authority in the Palestinian territory being void, then from the standpoint of Israel, it would be in the same position as if the accords were void in their entirety. Thus, the two different
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approaches
—voiding the entire accords, or only those parts of them that purport to legalize Israel’s authority over parts of the Palestinian territory—are identical in outcome when it comes to Israel’s rights to exercise authority over Palestinian territory. Understanding Oslo as a reciprocal ‘bargain’ involving Israel giving up some of its own rights in order to gain certain things that are the rights of the Palestinian people, and vice versa, is fundamentally at odds with the position the two parties were and are in when it comes to international law. Israel had no right to that which it agreed it would enable the Palestinian people to partly exercise. Whereas the Palestinian people already had the legal right to do that which Israel purported to partly grant them the ability to do. Voiding those parts of Oslo that purport to permit Israel to continue the occupation does not, therefore, invalidate Oslo in terms of the principle of consent. It would not unfairly deprive Israel of something it was given in exchange for something it gave up, because the thing it ‘gave up’ was something it had no right to in the first place, which it would be required to give up regardless of any obligation to do so under Oslo, and which was already the rightful entitlement of the other party.
3.c.v Oslo does not legalize the existence of the occupation
47.
To sum up the foregoing analysis: the Oslo accords do not alter the meaning and application of the general international law framework on the question of the existential illegality of the occupation, since they do not provide a valid treaty-based entitlement on the part of Israel to exercise any authority over the Palestinian territory, nor a reciprocal acceptance by the Palestinian people to such exercise of authority.
3.d. The relationship between the Court’s advisory jurisdiction and peace negotiations
48.
For the Court to clarify the position regarding the legality of the existence and conduct of the occupation, and to make any determinations of prior legal issues necessary to provide such clarification, is not to prejudice or substitute its own determination for the outcome of negotiations, since it is addressing matters which are already the position in international law, regardless of whether negotiations end up addressing them and what the outcome of these negotiations might be. Indeed, as indicated in the written statement, the illegality of the existence and conduct of the occupation is a matter that has presented itself since 1967.
49.
Moreover, the present Court has already made, in the Wall Advisory Opinion, legal determinations on some of the key background legal questions as outlined above (the right of self-determination of the Palestinian people; Israel’s non-sovereign relationship to the West Bank including East Jerusalem; the consequent application of occupation law and the extraterritorial application of human rights law; the consequent prohibition on annexation and settlements) and also some elements of the question of legality/illegality. The Court was well aware of, and, indeed, made reference to, the negotiations framework and process, and the emphasis placed on this by the representatives of the Palestinian people, and Israel, and by the UN. Clearly, the Court did not take the view that the existence of the foregoing prevented it from making these determinations.
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50.
Indeed, the Court took this approach when the negotiations process period was, roughly speaking, ten years into what was conceived to be a temporary, interim phase post-Oslo. It is now two decades after that, three decades in total. If the continued existence of a commitment to a process was not even regarded as a bar to making legal determinations, then it surely cannot operate in this way now, a further twenty years on.
51.
To be sure, the question before the Court now is wider than in the earlier case. In consequence, the range of legal determinations necessary is broader. But this is simply a difference of degree. In substance, the Court is being asked to do now what it was able to do then. And, actually, as indicated, what it did then was to make clear legal determinations on some of the background general matters, and areas of substantive illegality, that it is being asked to address now.
52.
It is also important to emphasize that the Court is being asked to make a determination on what the already-existing international legal position is when it comes to the legality/illegality of the existence and conduct of the occupation, and any prior general matters that are necessary to make the determination on legality/illegality. The Court is not being asked to determine matters ex aequo et bono. Nothing the Court will say in its answer, then, will encroach on anything that is not already determined by international law: the Court will simply clarify what that determination is. When the Court determined in the Wall Advisory Opinion that, for example, the Palestinian people had a right to self-determination in international law, Israel did not enjoy sovereignty over the Palestinian territory occupied since 1967, and Israel’s implanting of settlements in the West Bank was illegal, the Court did not somehow bring these legal positions into existence as a matter of international law. The Palestinian people did not, for example, suddenly acquire the legal right of external self-determination, nor did Israel suddenly find itself to be lacking legal title over the West Bank, nor did the Israeli settlements in the West Bank suddenly become illegal, through judicial fiat on 9 July 2004. It was already the case. Similarly, in the present proceedings, the Court is not being asked to render the Israeli occupation illegal in its existence and conduct. It is being asked to determine whether international law does this. If the Court determines that, as is submitted, the occupation is illegal, this determination will not somehow render the occupation suddenly illegal on the date the Court’s judgment is issued. Rather, it will amount to an authoritative confirmation of a pre-existing situation which has already been in operation, including throughout the post-Oslo period. In consequence, any determination by the present Court of the question before it cannot be understood as an interference in the diplomatic process. It is simply clarifying what the international legal context is within which that process has been and (insofar as it can be understood to continue to exist) is taking place.
53.
Indeed, given the centrality of international law to the settlement of disputes, as indicated above, the Court providing such clarification has to be viewed, necessarily, as a positive contribution to the prospects of and process for a settlement, and, more specifically, as helpful guidance, by the principal judicial organ, to the political organ requesting its advice, and also to other non-judicial UN bodies, notably the Security Council.6 Given
6 See e.g. the written statements in the present case of Norway (“… an advisory opinion of the ICJ will provide important guidance to the General Assembly and the Security Council in furthering the process of reaching a negotiated two-state solution based on internationally agreed parameters and public international law”) (p. 2) and China (the Court should “…provide legal guidance to the UN in handling the question of Palestine and contribute to an appropriate solution to the question”) (para. 15).
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this, it is strange to see those few written statements by
States, including Israel, who raise objections to the present case by invoking the settlement process. On what valid basis might (an admittedly very small number of) States view the Court providing clarity on the international legal framework relevant to a dispute as being harmful to the process of resolving that dispute?
54.
It might be speculated that this reflects a position that the negotiation process should be conducted on some other basis than, and lead to an outcome and agreement that departs from the operation of, international law. Such an approach would greatly advantage Israel, and correspondingly be to the serious detriment of the Palestinian people, given that Israel’s claims and aspirations to territorial sovereignty beyond its 1948 borders are entirely coextensive with territory—all or parts of the West Bank (including East Jerusalem)—that forms part of the territorial sovereignty of the State of Palestine and the Palestinian people as a self-determination unit (and thus to which Israel has no legally valid sovereign entitlement). However, such a position is not within the legally-permissible parameters of the law of international dispute settlement. It cannot, then, be accepted as a legally valid basis for objecting to the Court clarifying the legal position. This would be tantamount to seeking to co-opt the Court (by successfully persuading it to exercise its discretion not to exercise jurisdiction) into the political process of downplaying and obscuring the meaning and significance of international law in a dispute, in order to give an advantage to one side in their effort to have the dispute resolved in a manner contrary to international law. This would involve the Court in supporting a political position—an abuse of its judicial function—and, moreover, a political position that constitutes a breach of the UN Charter.
55.
Alternatively, these objections may reflect a cynical invocation of a process that is not actually viewed/being pursued as a viable means of producing a final settlement at all. Rather, its existence serves as a means of avoiding having to address the fundamental question of the legality of Israel’s exercise of control over the West Bank (including East Jerusalem) and Gaza which has continued for over half a century. But if this were the case, then not only is the process a sham in the view of such States, but also its invocation by them before the present Court is being made in bad faith. And the Court would again be co-opted into a political position. In this case, it would be aimed at removing attention from a fundamental matter of illegality in order to benefit the state, Israel, responsible for that illegality. The benefit would be in the advantages Israel obtains from maintaining the illegal situation, and being able to avoid the scrutiny and criticism that would arise out of the recognition that the occupation is existentially illegal, and that the illegality of its conduct is widespread, systematic and egregious. Equally, the Court would also be co-opted into providing cognate advantages to those States who have supported Israel in its operation of the occupation, or who have at least been unwilling to fully challenge it in this regard, and whose own responsibilities and reputations are thereby at stake, being bound up in Israel’s behaviour and reputation.
4. Situation before the Court is multilateral in character
56.
A few of the written statements have suggested that the situation before the Court is exclusively or essentially a bilateral dispute, and that this has implications for whether the
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Court should exercise its discretion to answer the question put to it by the General
Assembly.
57.
The situation before the Court is one that has long been and continues to be central to the global public interest, and is manifestly multilateral in character.7 This is partly because of the historical, religious and cultural significance of the land and its people between the Jordan river and the Mediterranean sea to many people in the world, for example, in religious terms, given the centrality of this land and particular sites on it, notably Al-Quds/Jerusalem, to the three major Abrahamic religions. It is also because it concerns matters—colonization, decolonization, and self-determination; the use of military force, including military occupation, and the pursuit of peace; the prohibition of racial discrimination; other core human rights protections—that are understood to be of common global concern.
58.
This is reflected in the following:
a.
The position of Palestine as a Mandate under the League of Nations, subject to the special international “sacred trust of civilization” obligations of the League Covenant (Article 22) (part of the multilateral Treaty of Versailles) and the supervision of the League, the League being the pre-eminent multilateral organization of its time.
b.
The subsequent and consequent involvement of the United Nations, the pre-eminent multilateral organization since 1945, across all of its organs and agencies, including the present Court (in two previous cases and two current cases including the present advisory opinion case), from its creation, in the situation in the entire land between the river and the sea and the people on that land in general and, specifically, in the situation in the Palestinian territory occupied by Israel since 1967.8 Reflecting this, the General Assembly reaffirmed in 2002 that “the United Nations has a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy”.9
c.
The way in which, as set out in the written statement, the areas of international law violated by Israel in both the existence and conduct of the occupation—the law of self-determination, the prohibition of aggression, the prohibition of racial discrimination generally and apartheid in particular, the core norms of IHL notably the implantation of settlements in occupied territory, the prohibition on torture, inhuman and degrading treatment—are all those that have erga omnes status and are thus by international legal definition not only bilateral but also multilateral in nature.10
7 See also the following written statements in the present case: of Jordan, para. 2.15; Palestine, para2.15; Palestine, para. 1.57, Liechtenstein, para. . 1.57, Liechtenstein, para. 1.56; Egypt, para. 44; Saudi Arabia, paras. 171.56; Egypt, para. 44; Saudi Arabia, paras. 17––18; Qatar, paras. 18; Qatar, paras. 6.100–6.101; Switzerland, para. 16; Russia, para. 21; Yemen, para. 9; Pakistan, para. 13; South Africa, para. 35; China, para. 14; Ireland, para. 9; Malaysia, para. 18; Indonesia, para. 20.
8 Note the present Court’s invocation of these matters, in the Wall Advisory Opinion, as the basis for concluding that “the construction of the wall must be deemed to be directly of concern to the United Nations” and that the question before was “of particularly acute concern to the United Nations and one which is located in a much broader frame of reference than a bilateral dispute” as a rebuttal to the assertion that the subject-matter of the General Assembly’s request to it was “only a bilateral matter between Israel and Palestine” Wall Advisory Opinion, paras. 49 and 50. Since the matters are not specific to the construction of the wall, but concern, at the very least, entire situation in the occupied Palestinian territory now before the Court, the logic of the Court’s finding in relation to the construction of the wall in particular is transferrable to the situation now before the Court.
9 GA Res 57/107, 3 December 2002, preamble.
10 See also the written statements in the present case by Luxembourg, para. 22; Brazil, para. 12; Switzerland, para. 16.
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d.
The fact that 57 States and international organizations, the highest ever number in the 77 years of the Court’s operation at the time of writing, the States of which representing more than a quarter of the entire membership of the United Nations, have chosen to participate in the present proceedings, in the vast majority of cases to affirm the Court’s exercise of jurisdiction, and to make submissions relating to the substance of the question before the Court.
59.
Indeed, the foregoing significance of States participating in the present proceedings includes those few States, other than Israel, who have suggested that the subject of the present proceedings is somehow exclusively or essentially bilateral. It is one thing for Israel to make this point. But it is strange to see other States, who, according to their own position, seemingly have no legitimate stake in the matter before the Court, intervening in the proceedings to make the same point. They deny that a general interest exists or, at least, is of much significance, when it comes the nature of the question put before the Court, but invoke a clear general interest (as the necessary basis for their intervention) when it comes to whether the Court should answer the question. But they cannot have it both ways. The very act of intervening undermines the point being made in the intervention.
60.
(In fact, in some cases they seem to want to have it every which way. The UK, for example, simultaneously insists that the situation is essentially bilateral and therefore should not be determined by the Court, and also, in the same written statement, advances positions of its own that presuppose determinations of some of the general matters it says the Court should not pronounce upon. For the UK, the injunction to stay out of an essentially bilateral matter or, alternatively, the characterization of the situation as essentially bilateral, seems to apply selectively, only when the International Court of Justice and, by association, the General Assembly (as the UN organ for whom the opinion will be rendered) is concerned, and not also in the case of itself.)
61.
Equally, their invocation of the significance of UN Security Council determinations on the subject of the peace process, as somehow supporting the argument that the situation at issue in that process is of an essentially bilateral character, is baffling given the very nature of the Security Council and the legal basis on which it makes determinations. Indeed, for member States of the Council to make this ‘essentially bilateral’ argument ignores that Council members act in that position on behalf of the organization as a whole. And it ignores how the Council’s involvement in any situation, including the present one, is itself both reflective and partly constitutive of the situation having a multilateral character.
62.
In truth, what these few States are doing is articulating a substantive position on what the common global multilateral position is and should be on the issues that have been put before the present Court. And dissimulating what they are doing here through the disingenuous claim that there is no or not much multilateral character to these issues. Echoing what was said earlier when it comes to the positions advanced by certain States, who overlap with the States making the present argument, there is a policy preference for the situation in the Palestinian West Bank (including East Jerusalem) and Gaza to be addressed by the multilateral system without full reference to and adherence with the usual application of international law. In both how that situation is understood now, and the basis on which a settlement to it might be arrived at. For these States and Israel, the Court’s opinion risks underscoring how their agenda for global public policy on this subject runs
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counter to the multilateral position on the situation when this position is a
ppraised according to international law.
63.
This is, then, an attempt by a few States to prevent the Court from revealing how far their own position is from the multilateral position arrived at on the basis of international law. And, as earlier, this is an attempt to co-opt the Court into endorsing their dismissal of the significance of the multilateral character of the situation, in order support their agenda of having that situation understood and addressed on a basis other than that arrived at through the application of international law. Again, this is an effort to interfere with the Court’s judicial function. And to do so in the service of a treatment of the situation that would run counter to the requirement that disputes are settled in accordance with international law. This is, then, not merely an attempt to persuade the Court not to exercise its discretion to accept jurisdiction in the present case. It is also an attempt to get the Court to accept their characterization of the situation, with important, exemplary implications beyond the proceedings for the way the situation is understood and should be resolved.
5. The Court is capable of addressing a complex and long-running situation, in its entirety, and, indeed, in doing so it would discharge an indispensable function under the UN Charter
64.
It has been suggested that the question requires the Court to address matters that are so complex, requiring so much information, and covering such a long period of time, that this is, essentially, too much for the Court to handle. In consequence, either jurisdiction should not be exercised at all, or the Court should make things more manageable by cherry-picking certain discrete matters covered by the question while leaving other matters covered by it unaddressed.
65.
It is difficult to understand this argument if one has respect for the Court and its members. And if one possesses even a passing knowledge of the Court’s jurisprudence, which demonstrates a clear track record, over a very long period, of dealing with the type of matters now being pronounced as somehow beyond the Court’s capabilities. It will be recalled that apartheid-era South Africa raised the factual-complexity issue to challenge the Court’s jurisdiction in the Namibia case. It “expressed doubts as to whether the Court is competent to, or should, give an opinion, if, in order to do so, it should have to make findings as to extensive factual issues.”11 The Court concluded that such a “limitation of the powers of the Court … has no basis in the Charter or the Statute.”12
66.
As before, what might seem simply like an effort to prevent or limit the question being addressed can also be viewed as a more troubling attempt to present the situation before the Court in a manner that supports a political agenda of bypassing the rule of international law. This is achieved by presenting the situation as somehow beyond human understanding, incapable of being rationally and fairly addressed, on the basis of evidence, in this case by a judicial body applying international law. What is left in such a situation is that the matters put before the Court are only to be determined on the basis of power. This is an affront to the very idea of the rule of international law. In asking the Court to
11 Namibia Advisory Opinion (1971), p. 27, para. 40.
12 Id.
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exercise its discretion to decline the exercise of jurisdiction on this basis,
these States are attempting to co-opt the Court in their political agenda. This is not just an ordinary form of disrespect for the Court’s judicial function. Here, the Court is being asked to engage in a form of self-sabotage (in addition to self-criticism in terms of supposed limited capabilities), degrading the very operation of the international legal system which it is not just part of, but whose very existence is bound up in that of itself.
67.
The cherry-picking alternative to the drastic totalized-rejection approach concerning the seeming unintelligibility of the subject also pursues a political agenda running counter to the international rule of law. And also, in particular, contrary the role of the United Nations and, within this, the present Court and the fellow principal organ, the General Assembly, asking the question of the Court. A partial answer to the question would support an approach to addressing global issues through international law that is selective, superficial, and does not address structural matters that are major determinants of issues appearing at the surface.
68.
This runs counter to the UN Charter, the legal instrument that is the basis for the General Assembly and the present Court’s existence and role. The point of the organization of which they are principal organs is to address the structural matters which these few States claim should be excised from the present case. The preamble to the United Nations Charter States that the objective of the organization is:
to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom.
The first two, and the fourth, objectives are the objectives of the legal rules that the Court has been asked to apply to the present question, and which the General Assembly has decided it wishes to receive advice about. The first concerns the existential legality of the occupation as a matter of the law on the use of force, and the legality of the conduct of the occupation as a matter of IHL and IHRL. The second concerns the existential legality of the occupation as a matter of the international law of self-determination, the associated right to resist vested in peoples deprived their right to external self-determination, and the legality of the conduct of the occupation as a matter of international human rights law across the full spectrum of rights, including, notably, the prohibition of racial discrimination generally and the prohibition of apartheid in particular, and including the right to return. The fourth concerns the existential legality of Israel’s economic domination and exploitation of the Palestinian people and their land, and the negative impact on the enjoyment of socio-economic rights by the Palestinian people of the conduct of the occupation. The third objective reflects the function of the Court in providing an advisory opinion clarifying the legal position when it comes to these three sets of rules, and the value to the General Assembly of this. It is only possible to seek to realize the objective of maintaining the establishment of “conditions under which justice and respect for the
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obligations arising from treaties and other sources of international law” if the meaning and application of these obligations is clear. Thus, the Court is, as usual, being asked to play an essential role in the functioning of the organization of which it forms an central part, by providing such clarity in the form of an advisory opinion. The States challenging this are, therefore, asking the present Court, and by extension the General Assembly for whom the advisory opinion would be provided, to somehow demur in part from the proper function they have under the UN Charter.
69.
Such a departure from Charter objectives would suit Israel and those States who take a one-sided or lopsided approach, in favour of Israel, when it comes to the matters before the Court. It is easier to justify the existence, maintenance and conduct of the occupation of the Palestinian territory if the legal questions determining these matters are only partially considered. This is not just a matter of lessening the range and scale of what has to be justified. It also would constitute a distorted picture that provides justification where none exists. As explained in the written statement, the question put to the Court by the General Assembly can be simplified into a two-part matter of whether the occupation of the Palestinian West Bank (including East Jerusalem) and Gaza is existentially illegal, and whether and how it is illegal in the way it is conducted. If only parts of these two issues were addressed, this would have the following effect.
70.
On existential legality/illegality, a partial answer would, in one important sense, be a non-answer. Unless the matter is addressed completely, it would, of necessity, be left open whether on some remaining, unconsidered basis the existence of the occupation might be legally permissible. Linking back to the earlier drastic approach of rejecting the request in its entirety, this would amount to a statement to the world that, in the view of the principal judicial organ of the United Nations, the ultimate question of whether or not the occupation is, in the final analysis, existentially lawful, is somehow unknowable. This would enable efforts by Israel and its supporters to argue, incorrectly, that the matter of whether and when the occupation can and should end is exclusively a matter of power and politics. The matter of Palestinian self-determination could be presented not, as it is, a legally-binding, automatic entitlement to freedom, but, rather, something that may, in some vague way, be a legal ‘right’, but one that operates only in a endlessly-deferrable sense, to be realized only if and when there is an agreement to it by the very state that is the source of its deprivation. In international law terms, such an approach would turn the clock back to a period in history where people, such as the Palestinian people, did not have a right of external self-determination as it is understood now. In earlier times, whether and when colonial peoples might be free was, legally, in the gift of the colonizer. For the Palestinian people, as addressed further below, their legal position in this regard changed with the provisions of Article 22 of the League of Nations applicable to A class mandates, and with complementary, supplementary emergence around the middle of the twentieth century of a right of external self-determination applicable to all colonial peoples. A partial answer to the question of existential legality, then, would have the effect of abrogating much of the practical and political significance of this right, enabling the Palestinian people to be treated as if they inhabit the world of over a century ago. This would equally require the present Court and the General Assembly to themselves set aside their consistent concern with the normative position on self-determination as it has evolved in international law. In the words of the present Court in the Chagos Advisory Opinion in relation to the Assembly,
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the “long and consistent record in seeking to bring colonialism to an end”, and in relation to the UN as a whole, “the matter of decolonization which is of particular concern to the United Nations.”13 And in doing so stepping back from the crucial role that they have played and continue to play in securing one of the purposes and principles of the United Nations, viz.:
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. (Art 1(2)).14
71.
On illegality of conduct, a partial answer to the question would mean that whereas the question of violations might be clarified in certain discrete areas (e.g., perhaps, in the implanting of settlements), whether or not there are violations in other, more complex and structural ways (e.g., perhaps, in terms of racial discrimination in general and apartheid in particular) will be left unaddressed or only partly determined. But discrete violations are often linked to structural violations, and an appraisal of the former in the absence of considering the latter is often, as a result, inadequate even on its own terms. More fundamentally, failing to address structural matters would support a superficial appraisal of a situation that so manifestly requires being addressed properly if there can be any hope of its resolution.
72.
Finally, as reflected in the comprehensive and in some places interlinked treatment of the different legal issues set out in written statement, the two matters – existential legality and legality of conduct – cannot each be properly appraised in the absence of a full appraisal of the other. If, for example, as is submitted in the written statement, the occupation is existentially illegal, this has important consequences for the illegality of how the occupation is conducted. For example, all exercise of authority by Israel through its soldiers in the West Bank would be unlawful, not just such authority that breaches occupation law/IHL and IHRL generally. Equally, certain aspects of existential illegality, such as the test of necessity and proportionality in the law on the use of force, require a full-spectrum consideration of whether or not the conduct of the occupation complies with IHL (even if such compliance, which is manifestly not the case, would not be sufficient to render the occupation existentially lawful bearing in mind the other, more fundamental legal problems with its existence).
6. The applicability of Palestinian self-determination to the territory of the West Bank (including East Jerusalem) and Gaza, and the significance of this to the (il)legality of the occupation and to the implanting of settlements
6.a. Fiji’s argument: only Israel has an international legal entitlement concerning the enjoyment of sovereignty and related matters linked to the territory of the West Bank and Gaza
73.
The written statement of Fiji, which in its arguments on substantive issues bears striking resemblance to certain Israeli approaches (the written statement of Israel itself is limited
13 Chagos Advisory Opinion (2019), p. 118, paras. 87 and 88 respectively.
14 On the significance of the General Assembly’s role in relation to self-determination when it comes to the request for the Advisory Opinion, see also the written statement of Malaysia in the present case, para. 20.
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to jurisdictional issues)
raises an important question about the territorial applicability of the right of self-determination of the Palestinian people and, relatedly, the scope of Israel’s territorial entitlements. This fundamental general matter is partly determinative of whether or not the existence of the occupation of the West Bank, including East Jerusalem, and Gaza, and Israel’s purported annexation over all or parts of the West Bank, including East Jerusalem, and Gaza, and Israel’s implanting of settlements in this territory, are lawful.
74.
On the one hand, Fiji claims that “there is no doubt that the Palestinian people have a right to self-determination” (page 7). On the other hand, its written statement suggests that there is no clear territorial entitlement embedded in this right, whereas there are territorial entitlements over the West Bank, including East Jerusalem, and Gaza, vested in Israel.
75.
When dealing with East Jerusalem in particular, Fiji observes that “allegations that Israel illegitimately annexed East Jerusalem presume that international law prohibits annexation in any circumstances, including even reunification of a national capital city” (p. 6). In international law, annexation is indeed only prohibited if the territory is already the sovereign territory of another international legal entity (a state or a non-state self-determination unit) or such a legal entity has an international legal entitlement to sovereignty over it. Thus for Israel’s purported annexation of East Jerusalem to escape this prohibition, East Jerusalem has to not form part of the sovereign territory of the State of Palestine, or the Palestinian people as a self-determination unit if the State of Palestine is to be set aside (either on the incorrect basis that it is not, legally, a state, or to cover the period before its statehood became operative in international law). Or, absent the foregoing, it is not territory that the Palestinian people have an international legal right to enjoy sovereignty over.
76.
East Jerusalem is part of the West Bank, which Israel captured in the illegal 1967 war. This is referred to as the “Palestinian territory occupied since 1967” in the question put by the General Assembly to the present Court. Fiji claims that the term “Palestinian territory” in the question constitutes “a political concept without legal specificity”. For Fiji, “[t]he sovereignty of these territories is, arguably, in abeyance until such a time as a peace agreement is reached” (p. 7). The concept of sovereignty being “in abeyance” was used by Judge Arnold McNair in his separate opinion to the International Status of South West Africa Advisory Opinion of the present Court.15 It was intended there, and presumably is intended here, to denote a situation where sovereignty in the sense of territorial title—international legal ‘ownership’ of the land, as it were—is not currently vested in any international legal person. If this is correct, then according to Fiji, Israel’s purported annexation of East Jerusalem, which forms part of the West Bank, has not been legally effective.
77.
However, and more broadly, Fiji argues that although sovereignty over the West Bank and Gaza may not be currently vested in any international legal entity, Israel has a right to such sovereignty, and, by implication, the Palestinian people lack such a right. For Fiji,
It is relevant to mention that Article 2 of the Mandate for Palestine, created by the Council of the League of Nations in 1922, carries legal weight. It recognized the rights
15 International Status of South West Africa, Advisory Opinion, 11 July 1950, Separate Opinion of Judge Arnold McNair, p. 150.
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of the Jewish people in its legal obligation to ensure the establishment of the Jewish national home in the territory between the Mediterranean and the Jordan River. The Mandate included in Article 6 a right to immigration and settlement for the Jewish people in that territory [footnote omitted].
The international law principle of “acquired legal rights”, constituted part of the transitional arrangements from the system of Mandates under the League of Nations to the system of Trusteeships under the UN Charter. Article 80 of the UN Charter continued the rights of Jewish and other peoples under the Mandates system. When the British unilaterally terminated their responsibilities under the Mandate and the [sic] Israel was proclaimed a State on 14 May 1948, rights under the Mandate remained relevant in the mandate territory not yet under Israeli control. The Court has underlined the relevance of the rights bestowed by a Mandate on the people concerned in its Advisory Opinions on Southwest Africa and Namibia [footnotes, referencing pages 133 of the former decision and 33-38 of the latter decision, omitted]. (p. 7).
6.b. Implications and consequences of the argument
78.
The implication of Fiji’s argument is that Israel has a legal right in international law to enjoy sovereignty over the entire territory of former Mandatory Palestine, including the territory occupied since 1967. The relationship between Israel and that territory, then, is that of a state that does not enjoy sovereignty, but is entitled to it. This presumes that the West Bank and Gaza are not ‘Palestinian’ territory in the sense that the State of Palestine and/or the self-determination unit of the Palestinian people are not sovereign over it. It also presumes that, as an alternative to such current enjoyment of sovereignty, the Palestinian people do not have a territorial entitlement over the West Bank and Gaza (in other words, they lack a right to have sovereignty over this territory vested in them).
79.
In consequence, there is no legal bar to the Israeli annexation of all or part of the West Bank and Gaza. Indeed, any annexation by Israel would be pursuant to a valid international legal basis to enjoy sovereignty. Thus, although Fiji seems to suggest that Israel’s purported annexation over East Jerusalem has not been legally effective in terms of Israel acquiring sovereignty (the assertion that sovereignty over the West Bank is ‘in abeyance’ – unless, perhaps, Fiji’s reference to the West Bank here is supposed to exclude East Jerusalem), this cannot be regarded as an unlawful act since Israel is simply asserting a right it is entitled to in international law.
80.
A further consequence is that the question of the existential legality of Israel’s control over the West Bank and Gaza does not have to account for the effect the occupation has on the self-determination right of the Palestinian people to exercise territorial sovereignty and control there, since no such right can exist, given that it would conflict with what we are told is Israel’s legal right to sovereignty over the territory. Consequently, when Fiji says that “there is no doubt that the Palestinian people have a right to self-determination” (p. 7), the ‘right’ is emptied of a crucial element: a territory. The Palestinian people seem to enjoy this right only in a virtual sense, without any connection to the material world in terms of there being territory they would inhabit. (Israel might agree to let the Palestinian people inhabit, control, and even eventually have sovereignty over, some of the territory
26
in the West Bank and Ga
za, but such arrangements would be based on not legal entitlements vested in the Palestinian people but, rather, a gift by the rights-holder, Israel). This is not the right in the sense of the international law right to external self-determination. Fiji is effectively denying that the Palestinian people have this legal right, and occluding this through its earlier general affirmation which, it turns out, does not relate to that right as generally understood in international law.
81.
A yet further consequence is that the existential legality of Israel’s occupation of the West Bank and Gaza does not depend on the legal significance of this for the enjoyment of the Palestinian people to self-determination linked to that territory, since there is no such enjoyment with that link.
82.
With the bars concerning annexation and self-determination removed, the occupation is existentially lawful (the illegality of the occupation as a use of force only applies if there is a right of self-determination negatively affected by the use of force).
83.
When it comes to the legality of the conduct of the occupation, one of the key prescriptions of occupation law—the prohibition of implanting settlements—is expressly and also impliedly challenged when it comes to the legality of Jewish settlers in Palestinian territory. The express challenge involves disputing that the occupation law prohibition covers civilian migration other than if it is forced (p. 6). Such a bold reach challenges the consensus view on the matter in general and as it applies to the present situation held by a large number of states (reflected in many of the written statements in the present case), and various UN bodies including principal organs, the latter including the present Court in the Wall Advisory Opinion. The implied challenge is in the invocation of the Mandate arrangements. A cognate right to Israel’s supposed international legal right to all the territory between the Jordan river and the Mediterranean Sea is the right to settle that territory: expressly invoked by Fiji with its reference “a right to immigration and settlement for the Jewish people in that territory.” In a sense, then, it may not matter what view is taken on the meaning of the occupation law prohibition on settlements, because there is the Mandate arrangement, which presumably is understood to operate in some sort of trumping fashion, perhaps via the doctrine of lex specialis.
84.
Thus, according to Fiji, not only is the existence of the occupation lawful, but the implanting of Jewish settlements on occupied territory is also lawful.
85.
All of the foregoing hinges on a particular approach to the Mandate arrangements that is completely mistaken. In the original written statement, it was indicated that the Palestinian people have a legal right to external self-determination in part because of the provisions of Article 22 of the League of Nations Covenant (para. 13(1) of the written statement). It is now necessary to set out the reasoning that lay behind that one sentence,16 in order to explain why the foregoing suggestions based on the Mandate arrangements by Fiji are incorrect.
16 As set out in Ralph Wilde, ‘Tears of the Olive Trees: Mandatory Palestine, the UK, and accountability for colonialism in international law’, Journal of the History of International Law (2022), available at: https://brill.com/view/journals/jhil/aop/article-10.1163-15718050-12340216/article-10.1163-15718050-12340216.xml?language=en.
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6.c. Mandate arrangements vest a sovereign entitlement over the land between the Jordan river and the Mediterranean Sea in the Palestinian people and not in Israel
86.
At the end of the so-called First World War, the victorious allies took over the colonies of the defeated powers, one of the prizes of victory. The UK became the power in Palestine, displacing the defeated Ottoman Empire. These arrangements were placed under the authority of the League of Nations in the Mandates system. Unlike with other colonies, they were subject to the stipulations of the Covenant of the League of Nations. The Covenant formed part of the Versailles Treaty, thereby binding in international law on the states administering the Mandated territories as part of that international agreement to which they were a party.
87.
The administration of each particular Mandate was set out in a dedicated ‘Mandate Agreement’ (referred to in the quotation from the written statement of Fiji above as the ‘Mandate for Palestine’), itself a binding international law instrument adopted by the governing Council of the League of Nations (not, it must be stressed, an ‘agreement’ involving participation or consent by the inhabitants of the territory). In the case of the Palestine Mandate, covering the entire land between the Jordan river and the Mediterranean Sea, the Agreement, adopted in 1922 and entering into force in 1923, incorporated the terms of the so-called Balfour Declaration made in 1917.17 The preamble to the Mandate Agreement stated that:
the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people…
Under Article 2,
The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions…
Under Article 6,
The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.
17 Mandate for Palestine, text approved by the League of Nations Council 19th Session, 13th Meeting, 24 July 1922, UN Library reference C.529. M.314. 1922. VI., obtainable from https://www.un.org/unispal/document/auto-insert-201057/ entry into force on 29 September 1923, Minutes of the Meeting of the League of Nations Council held at Geneva on 29 September 1923, UN Library reference C.L.101.1923.VI., available at: https://www.un.org/unispal/document/auto-insert-204395/
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As indicated in the quotation earlier, Fiji cites these two Articles as the basis for the arguments it makes concerning Israel’s supposed territorial entitlement over the West Bank and Gaza and related entitlement to settle Jewish people there.
88.
Some critics of the League Council’s adoption of the Mandate Agreement, and/or the UK’s implementation of it, invoke the idea of a right of self-determination in international law vested in the inhabitants of the territory. Typically, they associate this, somewhat vaguely, with Wilsonian self-determination and the League of Nations. However, the settled view in international law is that in this period there was no legal right of external self-determination—the right to be free from colonial rule—for colonial peoples. This came later, in the middle half of the 20th Century. Thus, the Palestinian people may have that legal right now, but they did not have it then. (Hence, in the written statement, it was indicated that the Palestinian people have a right of external self-determination on this basis – see para 13(2) of that written statement). In consequence, it is said, the UK and the League of Nations Council had a free hand on the question of the future of Palestine. If they decided that all or part of it was to be a “national home for the Jewish people”, even though most people living in Palestine at that time were not Jewish, there was nothing, legally, impermissible about this. And thus, as Fiji suggests, these stipulations can be the basis for Israel having sovereign entitlements over the West Bank and Gaza, and the right to implant settlements on this territory.
89.
This is incorrect. There was no internationally valid legal basis for the League of Nations to incorporate the Balfour commitment into the Mandate Agreement. And insofar as it did this, including in the provisions extracted above, such stipulations are a nullity. As mentioned, the League of Nations Mandates system was conceived legally through Article 22 of the League of Nations Covenant, an instrument binding in international law as part of the Treaty of Versailles which entered into force 1920.18 According to Article 22, the arrangements constituted a “sacred trust of civilization”. That article contained a crucial provision. For Mandates covering the former dominions of the Ottoman Empire, what became referred to as ‘A’ class mandates (the mandates were divided up into three classes in the Covenant), it stipulates that:
their 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.
This is, effectively, a sui generis model of self-determination. It is not the same as the immediate right to independence which became the right in international law applicable to people in all colonial territories in the second half of the twentieth century (and so, as indicated, applicable to the Palestinian people in Jerusalem, the West Bank and the Gaza Strip now). But it is close to it, through the requirement that independent statehood is the clear objective, and, moreover, that this should be “provisionally recognized”. The people in ‘A’ class Mandates were placed in a privileged category compared to the people of all other colonies, including other classes of Mandate, as far as their entitlement to self-rule in general international law was concerned.
18 Treaty of Peace Between the Allied and Associated Powers and Germany, Signed in Versailles, 289 June 1919, entry into force 10 January 1920, (1919) UKTS 4 (Cmd. 153), Part I, League Covenant 1919: Covenant of the League of Nations, 28 April 1919, available at: https://www.ungeneva.org/en/about/league-of-nations/covenant.
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90.
This is commonly ignored because of the lack of such an entitlement for peoples in colonial territories generally, which only came later. ‘A’ class Mandates are sometimes mistakenly lumped together into a general category, whereby self-determination as it came to be understood from the middle of the 20th century did not have any relevance in the earlier period. This oversight treats the position of the people of these Mandates, such as the population of Mandatory Palestine, as if the status of their territory was to be determined at the complete discretion of the League Council and/or the Mandatory authority. Such discretion did indeed prevail in the case of many other colonial territories (until the later emergence of the general right of self-determination in international law). However, things were different for ‘A’ class Mandates.
91.
The sui generis regime of Article 22 was to be in operation from the start of the Mandate. The community that was to be “provisionally recognized” as an “independent nation” was that of Mandatory Palestine at that time, the population of which being 90 percent non-Jewish Palestinian.
92.
There is, therefore, a fundamental contradiction between the provisional independence obligation in Article 22 of the Covenant, and the Balfour Declaration plan enshrined in the Mandate Agreement, implemented by the UK in practice, and now claimed by Fiji as the basis for Israel’s supposed entitlements concerning sovereignty and settlement over the West Bank and Gaza. A few commentators suggest that it can be somehow reconciled in favour of the Agreement—and so, actually, there is no contradiction. The argument advanced by Fiji may be based on this. But most of the actors involved in and reacting to the process of adopting the Agreement, including Balfour himself, and commentators at the time and since, proceeded from an assumption that there was a fundamental contradiction between it and the Covenant. Some commentators criticise the Agreement as an unjustified departure from the Covenant, characterising this as a ‘violation’ of the Covenant. But they do not then explain whether this had any consequences for the legal effectiveness of the Agreement and, in turn, the lawfulness of UK actions in implementing it. It is as if the Covenant was violated but the Mandate Agreement was nonetheless legally valid insofar as it departed from the Covenant and thus constituted such a violation. To ultimately the same effect, others assume, without even acknowledging they are doing this, let alone justifying their reasons for doing so, that the Agreement legally-validly overrode the Covenant insofar as there were contradictions between the two. Either way, then, the suggestion is that the Mandate Agreement was legally effective notwithstanding the fundamental contradiction with the Covenant. These may be alternative explanations for the argument advanced by Fiji in its written statement.
93.
As Wilde argues, all these approaches ignore a fundamental legal question that always arises when organs of international organizations—here the Council of the League of Nations—act.19 It is necessary to ask whether that organ had the legal competence under the constituent instrument of the organization that it forms part of—the League of Nations Covenant—to modify the operation of a fundamental stipulation of that constituent instrument in the way it did here. And to consider, if it did not, what the consequences are for the legal validity of the provisions of the Mandate for Palestine that contradicted Article 22. According to the general principles of international law relating to the powers of
19 Wilde, ‘Tears of the Olive Trees’, above.
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international organizations, the League Council’s competence to act was limited: it had to
stay within the bounds of the Covenant as the constituent instrument of the organization. In consequence, the Council did not have the power to take action that contradicted the express provisions of the Covenant. Thus, the Council could not validly approve any stipulations in the Mandate Agreement which were incompatible with those provisions. Any such purported approval would involve the Council acting ultra vires. As a result, the relevant approval would be without legal effect—void ab initio.
94.
In the same way, all states, including the UK as the Mandatory in Palestine, were bound to respect and comply with the provisions of the Covenant, as part of a binding international treaty, insofar as they related to Mandatory Palestine. This prohibited the UK from any action which did not respect and comply with those provisions. Any breach of this prohibition is not only a violation of international law. Also, necessarily, it could not act as a valid basis for new arrangements which purported to trump the prior relevant stipulations in the Covenant. The consequence, as a matter of both the limited legal powers of the League Council, and the legal position of the UK as a party to the Treaty of Versailles, is as follows. The operative international legal regime for Mandatory Palestine comprised the relevant provisions of the League Covenant taken together with only those elements of the Mandate Agreement compatible with the Covenant provisions.
95.
It follows that it is necessary to read the Mandate Agreement as if those parts of it implementing the Balfour commitment and contradicting Article 22 of the Covenant are not there.
96.
The consequence of this is that there is no international legal basis for a Jewish homeland, or a cognate legal basis for Jewish settlement, in Palestine rooted in the Palestine Mandate Agreement. That instrument does not carry “legal weight” for these things, to borrow the words of the written statement of Fiji.
97.
It will be recalled that the statement of Fiji asserts that:
The international law principle of “acquired legal rights”, constituted part of the transitional arrangements from the system of Mandates under the League of Nations to the system of Trusteeships under the UN Charter. Article 80 of the UN Charter continued the rights of Jewish and other peoples under the Mandates system. When the British unilaterally terminated their responsibilities under the Mandate and the [sic] Israel was proclaimed a State on 14 May 1948, rights under the Mandate remained relevant in the mandate territory not yet under Israeli control. The Court has underlined the relevance of the rights bestowed by a Mandate on the people concerned in its Advisory Opinions on Southwest Africa and Namibia. (p. 7, footnotes, referencing pages 133 of the former decision and 33-38 of the latter decision, removed).
98.
There are multiple mistakes and misunderstandings in the foregoing account.
99.
The reference to Article 80 concerning the UN Trusteeship system is irrelevant, since, of course, Palestine was not formally placed under the Trusteeship system. That said, the reference to “acquired legal rights” in a broader sense—from Mandate or Mandatory (the UK) to Israel, rather than from Mandate or Mandatory (the UK) to Trust Territory/Trust Territory administering authority—would indeed be the legal basis for the contention that Israel has a territorial right over the West Bank and Gaza because of the legal regime
31
applicable to the Palestine Mandate.
However, the particular “rights of” the Jewish people “under the Mandates system” that would need to have been ‘acquired’ by Israel—the right to the land of Palestine as a homeland (i.e., the right to sovereignty) and the right to settle this land—were not, for the reasons explained, rights that the Jewish people had under that system. There were, then, no such rights for Israel to acquire.
100.
Moreover, and relatedly, because there were no such rights under the Mandate system, the proclamation of Israel in part of the territory of the Mandate in 1948, and the recognition of Israeli statehood by certain states, and its membership of the United Nations, necessarily cannot be based on the legal stipulations of the Mandate. Instead, it was an illegal secession. Israel was not and is not, therefore, somehow the legal successor or the legal continuation, in a different form (its statehood covering only part of the territory) of the Palestine Mandate. It was and is a novel and separate international legal entity established in defiance of and at odds with the Mandate and its operative legal regime, which was the commitment to independent statehood operating at the level of the entire territory of the Mandate, as set out in the “sacred trust of civilization” obligations of Article 22 of the Covenant.
101.
The written statement of Fiji is correct when it says that on the proclamation of Israel in 1948, “rights under the Mandate remained relevant in the mandate territory not yet under Israeli control.” But these are rights not vested in the Jewish people on or before 1948 and they have not been vested in Israel since then. They were and are, rather, rights vested in the Palestinian people. The written statement of Fiji observes that
The Court has underlined the relevance of the rights bestowed by a Mandate on the people concerned in its Advisory Opinions on Southwest Africa and Namibia. (page 7, footnotes, referencing pages 133 of the former decision and 33-38 of the latter decision, removed).
The present Court did indeed do this in those opinions, but, crucially, by referencing the rights in both the relevant mandate agreement and Article 22 of the Covenant, not simply the former. Moreover, significantly for present purposes, the particular mandate agreement at issue, that for South West Africa, did not contain a radical divergent position in relation to that territory from the position applicable to it under Article 22 of the Covenant. Thus, there is nothing in these decisions to support Fiji’s contention about the legal effect of the Palestine Mandate Agreement in terms of legalizing a departure from Article 22.
102.
These decisions affirm the continued operation of the international legal regime applicable to the land between the Jordan river and the Mediterranean Sea under Article 22 of the League of Nations Covenant, supplemented by the Mandate Agreement only insofar as its provisions are compatible with Article 22. This legal regime stipulates that there is a right of what is effectively self-determination on the part of the Palestinian people over this entire land. And it does not enshrine a competing equivalent right, nor a cognate right of settlement, vested in the Jewish people and somehow inherited by Israel. The only difference now from the position in the League era is that, as indicated above, the right of self-determination in international law is to be realized instantly and automatically, not merely ‘provisionally recognized’. This is the effect of synthesizing the two separate international legal grounds for Palestinian self-determination, the Article 22 of the League
32
of N
ations Covenant grounds and the subsequent generalized anti-colonial grounds (set out, as indicated, in paragraphs 13(1) and 13(2) of the original written statement).
103.
It follows, then, that the West Bank, including East Jerusalem, and Gaza, are, as set out in the original written statement, part of the sovereign territory of the State of Palestine and the Palestinian people as a self-determination unit. Israel has no legal sovereign entitlement over this territory nor a legal right to settle Jewish people there. The legality of Israel’s exercise of control over this territory, its purported annexation of all or part of it, and its implanting of settlements, therefore, falls to be determined according to international law in the light of the status of the territories in this regard. Such a determination based on the application of the law of self-determination, the law on the use of force, and occupation law, leads to the conclusion, as set out in the written statement, that the occupation is existentially illegal as a breach of self-determination and an aggression, the purported annexation is illegal also in these two senses, and the implanting of Jewish settlements in the territory is illegal as a breach of occupation law and the law of self-determination.
7. The illegality of the existence of the occupation according to the jus ad bellum
104.
The Written Statement of Fiji insists that the occupation is existentially legal in jus ad bellum terms. The reasoning behind this is somewhat unclear. On the one hand, Fiji states that “the mere fact of occupation does not entail illegality” and that “international law imposes no constraint on the duration of occupation” (p. 5). This would suggest that the existence of the occupation does not fall to be determined by international law, and that the only matter the present Court can address, therefore, is the question of the legality of the conduct of the occupation. However, Fiji also asserts that “the right of occupation continues throughout an armed conflict and endures until it is resolved” (p. 5). Presumably, then, an occupation is only legally permissible if there is a “right” to conduct it, and the test for this is a negative one: if the “armed conflict” is not “resolved.”
105.
The only references to armed conflict made in the written statement of Fiji are when it says that “Israel is occupying a remainder of territories over which it gained control in self-defense in June 1967” and references “continuing acts of aggression against Israel emanating from the Gaza Strip.”
106.
The 1967 war was between Israel and Egypt, Jordan and Syria, not between Israel and the Palestinian people in the West Bank and Gaza. The war between Israel and these three states was over after six days. Israel subsequently entered into peace agreements with Egypt and Jordan, the states from whom it captured, respectively, Gaza and the West Bank during that six-day period. The situation between Israel and Egypt and Jordan is not in any sense, and, within this, not in any international legal sense, an “armed conflict”. There is, then, manifestly no link between the 1967 war and the current occupation in terms of the legal justification Israel claimed (erroneously, as addressed in the written submission) for that war, correctly characterized by Fiji as self-defence.
107.
The situation between Israel and West Bank and the Gaza Strip is one between an occupying state and occupied territory, the latter of the Palestinian people with a right to self-determination in international law. Fiji’s reference to “acts of aggression against Israel
33
emanating from the Gaza Strip”
implies that attacks on Israel from Gaza are somehow illegal in the jus ad bellum (hence “aggression”), which, if correct, would necessarily imply that Israel has a legal right to self-defence, which could therefore provide a legal basis for the existence of the occupation, at least of Gaza (assuming the requirements of necessity and proportionality were met—not, actually, an assumption that can be made). As addressed in the written submission, more broadly one potential explanation for Israel maintaining the occupation over the West Bank and Gaza is a defensive objective: to prevent threats to Israel from emerging from these territories (preventative action of this kind does not, of course, fall within the boundaries of lawful self-defence).
108.
But this is all circular reasoning: acts of violent resistance to the occupation, and/or the risk of such acts, are invoked to supposedly give rise to a right to use force to maintain the occupation. The starting point has to be the occupation itself, and whether it is justified from the beginning, given that by definition its origins had nothing to do with any acts of resistance to it by the Palestinian people in Gaza or the West Bank, but something entirely different from, and necessarily antecedent to, such acts. If there was no original lawful basis for introducing and conducting the occupation in terms of threats emanating from the Palestinian people (and Israel has never claimed this was the reason why it captured the West Bank and Gaza), there cannot somehow then be such a basis based on threats that are acts of resistance to the occupation. A justification for maintaining the occupation cannot be constructed simply out of the consequences of resistance to it.
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Original copy filed at the Registry of the Court
Signed by Ambassador Abdelhamid ZEHANI
Chief of the Permanent Mission of the League of Arab States in Brussels