As Palestinians stand on the brink of extinction, their right to a state of their own is vital, League of Arab States tells ICJ
In January the International Court of Justice (ICJ) heard an application for provisional measures in a claim against Israel under the 1948 Genocide Convention for its conduct of the war in Gaza, brought by South Africa.
There was a two-day hearing in which Israel participated fully and defended its conduct of the war. It was followed by an interim judgment in which the court found that Israel had a plausible case to answer for breaches of the convention that warranted provisional measures, but no call for a ceasefire.
The court ordered Israel to take all measures possible to prevent genocidal acts, allow humanitarian assistance and submit a report on the measures within a month. A month later, right on cue, 100 people were killed as humanitarian assistance was being delivered to them in Gaza.
The International Court of Justice (ICJ) sat again in a case concerning Israel from February19-26; this time to hear the case brought by the UN General Assembly for an advisory opinion on the legal consequences of Israel’s occupation of Palestine.
The questions posed by the UNGA were about Israel’s violation of the right of the Palestinian people to self-determination owing to its prolonged occupation, settlement and annexation of Palestinian territory since 1967. The UNGA also asked the court to shed light on the legal status of the occupation and the legal obligations of other states due to that status.
Israel did not take part in the hearings. It submitted a brief written statement objecting to the proceedings as an abuse of the court’s role under the UN Charter. Israel’s case is that the request for an advisory opinion is contrary to the established legal framework for the peaceful resolution of the Israel Palestinian conflict.
The questions were a distortion of history. They presumed violations by Israel and ignored terrorist acts against Israelis and Jews by Palestinians – a villain and victim narrative in which there are no Israeli rights and no Palestinian obligations. The UNGA ignored Israel’s deep historical ties with the territories and legitimate security concerns and, crucially, that the parties agreed a political process and not a judicial settlement of the dispute.
In Israel’s submission, the request for an opinion without its consent is an abuse of the process of the court since it runs contrary to the fundamental international legal principle that makes the consent of states to judicial resolution of disputes mandatory.
The court heard arguments from 52 states and three international organisations between February 19 and 26. The US, UK and a few European countries supported Israel’s contention that there is a political framework and that an advisory opinion would throw a spanner in the works of the agreed framework.
The rest of the world disagrees as a two-state negotiated settlement is not in prospect. It is a non-starter for the present government of Israel that makes no secret of its policy of an Israel comprising all the territory from the river to the sea. By the way, in the UK you can be done for inciting hate if you use the slogan ‘from the river to the sea Palestine will be free’ in a public place but not if you call for an Israel ‘from the river to the sea.’
The most erudite presentation before the ICJ was that of Dr Ralph Wilde of University College London on behalf of the League of Arab States, on February 26. It is not easy to do justice to Dr Wilde’s brilliant address to the ICJ in a short column, but it is available online for anyone interested in the legal case of the Palestinians.
It was a legal historical tour de force whose delivery was as captivating as its legal analysis was pellucid. He began with the original basis of Palestinian self-determination in international law, not to challenge Israel’s right to exist, but to preserve the Palestinian people as they stand on the brink of extinction in historic Palestine.
He blamed Britain for breaching the League of Nations covenant under the 1919 Treaty of Versailles at the end of WWI to hold on sacred trust “certain communities formerly belonging to the Turkish empire that reached a stage of development where their existence as independent nations can be provisionally recognised.”
Dr Wilde argued that the mandate did not authorise Britain to carve out of Palestine an exclusively Jewish state in furtherance of the 1917 Balfour Declaration, which he characterised as an egregious violation of the right to self-determination of the territory of historic Palestine as a unitary territory.
He skated over the creation of the state of Israel in 1948 and conceded its international status as a member of the UN, but not as the successor state of the British mandate in historic Palestine.
The main thrust of his submission was concerned with self-determination after it crystallised into an anti-colonial peremptory norm of international law in the second half of the 20th century. In a subtle way, he argued for the international recognition of a Palestinian state independently of the wishes of Israel, while at the same time justifying the assumptions on which the UNGA based its questions. I have to say, prima facie, the questions appear loaded against Israel and Dr Wilde was right to address whether the assumptions were legally and factually sound.
First, he argued that from 1948 and 1967 the Palestinians in Israel were either displaced, expelled or forced to become second-class citizens in an exclusively Jewish state in conditions of discrimination and apartheid, which he submitted was a violation of their right to self-determination.
In the 1967 six-day war, Israel conquered East Jerusalem, the West Bank and Gaza. Dr Wilde submitted that the occupied territories were acquired and retained by the illegal use of force. Anticipatory self-defence, claimed by Israel as its justification for the war, was not lawful and that in any case the use of force to retain occupied lands was unlawful. Next, he argued that the incorporation of East Jerusalem into Israel and the aggressive expansion of Jewish settlements in occupied territories amounted to illegal annexation that had to end immediately.
Finally, he delved deeper into the question of self-determination and submitted it is a free-standing peremptory right of the people of Palestine whose exercise does not depend on Israel’s agreement. And that the US and UK were wrong to submit that the existence of a process of negotiation trumps Palestinian self-determination – it may be wishful thinking but it is not the law.
Alper Ali Riza is a king’s counsel in the UK and a retired part time judge
