ISRAEL AND PALESTINE: RECONCILING LAW AND POLITICS

Israel must end “as rapidly as possible” its unlawful occupation of Palestinian territory (including the Gaza Strip), the International Court of Justice (ICJ) pronounced in a landmark advisory opinion …  – Kim and Balliette (justsecurity.org)

Despite the absolute clarity of the World Court’s ruling that Israel’s long-term occupation of Palestinian territory was “unlawful”, amounted to de facto annexation, and needed to be ended as rapidly as possible, the US — with the support of some key allies, including Canada — is still insisting on Israeli “security first”.

In this post, we discuss why it is necessary to reconcile the US view of Israel’s “right to security” within the two-state solution negotiating framework with the requirements of international law, particularly the requirement for Israel to end its illegal occupation as rapidly as possible.

Landmark World Court ruling finds the continued presence of Israel in the Occupied Palestinian Territory to be illegal

On 19 July 2024, the International Court of Justice gave its Advisory Opinion on the “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.”

On the core issue of the legality of Israel’s continued presence in the Occupied Palestinian Territory, the Court was unequivocal:

The sustained abuse by Israel of its position as an occupying Power, through annexation and an assertion of permanent control over the Occupied Palestinian Territory and continued frustration of the right of the Palestinian people to self-determination, violates fundamental principles of international law and renders Israel’s presence in the Occupied Palestinian Territory unlawful. (para. 261)

Palestinian right of self-determination relates to the entirety of the Occupied Palestinian Territory (OPT)

This illegality relates to the entirety of the Palestinian territory occupied by Israel in 1967. (para. 262)

The World Court makes it clear that the Palestinian right of self-determination relates to the entirety of the Palestinian territory occupied by Israel in 1967, “encompassing the West Bank, East Jerusalem and the Gaza Strip”. (para. 78)

The Court adds:

from a legal standpoint, the Occupied Palestinian Territory constitutes a single territorial unit, the unity, contiguity and integrity of which is to be preserved and respected. (para. 78)

Israel violating the prohibition on acquisition of territory by force

The Court is of the view that Israel’s assertion of sovereignty and its annexation of certain parts of the territory constitute a violation of the prohibition of the acquisition of territory by force. (para. 254)

Security concerns cannot override this fundamental principle

Nor can Israel’s security concerns override the principle of the prohibition of the acquisition of territory by force. (para. 254)

Israel is violating the international prohibition on racial segregation and apartheid

The Court observes that Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD [The International Convention on the Elimination of All Forms of Racial Discrimination]. (para. 229)

Legal consequences for Israel of its continuing unlawful occupation

The Court outlines the legal consequences for Israel of its unlawful occupation, stating:

Israel has an obligation to bring an end to its presence in the Occupied Palestinian Territory as rapidly as possible. (para. 267)

The Court further observes (in paragraphs 268–272) that Israel has an obligation to end its illegal policies and practices in the OPT, by which they mean:

• An immediate cessation of all new settlement activity; and the
• Repeal of all legislation and measures creating or maintaining its illegal occupation.

Israel is obliged to provide full reparation for the damage caused by its internationally wrongful acts

The Court outlines Israel’s obligation to provide “full reparation for the damage caused by its internationally wrongful acts”, defining “reparation” as including “restitution, compensation and/or satisfaction”. (para. 269)

They continue:

Restitution includes Israel’s obligation to return the land … seized … since its occupation started in 1967….

It also requires the evacuation of all settlers from existing settlements and the dismantling of the parts of the wall constructed by Israel that are situated in the Occupied Palestinian
Territory, as well as allowing all Palestinians displaced during the occupation to return to their original place of residence. (para. 270)

The Court also outlines Israel’s obligation to provide compensation where restitution is not possible. (para. 271)

Legal consequences for other states of Israel’s illegal occupation (paras. 273–279)

After outlining the legal consequences for Israel, the Court sets out the legal consequences of Israel’s international wrongful acts in the OPT for other states, including Canada.

Obligation to co-operate with UN to put into effect the modalities for ending occupation and realizing Palestinian self-determination

In a finding that is particularly relevant to our proposal for a UN Transitional Administration for Palestine, the ICJ outlined the obligation of all States to cooperate with the UN as follows:

With regard to the right to self-determination, the Court considers that, while it is for the General Assembly and the Security Council to pronounce on the modalities required to ensure an end to Israel’s illegal presence in the Occupied Palestinian Territory and the full realization of the right of the Palestinian people to self-determination, all States must co-operate with the United Nations to put those modalities into effect. (para. 275)

Obligation of non-recognition and non-cooperation

In the view of the Court:

[A]ll States are under an obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory. They are also under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory. (para. 279)

Legal Consequences for the United Nations (paras. 280–283)

The Court then outlines the legal consequences of Israel’s international wrongful acts in the OPT for the United Nations.

UN responsible for modalities for ending illegal occupation and realizing Palestinian self-determination

In the words of the Court:

the precise modalities to bring to an end Israel’s unlawful presence in the Occupied Palestinian Territory is a matter to be dealt with by the General Assembly, which requested this opinion, as well as the Security Council.

Therefore, it is for the General Assembly and the Security Council to consider what further action is required to put an end to the illegal presence of Israel, taking into account the present Advisory Opinion. (para. 281)

UN must redouble efforts to end the Israeli-Palestinian conflict

In its closing comments, the Court stresses

the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli-Palestinian conflict, which continues to pose a threat to international peace and security, to a speedy conclusion, thereby establishing a just and lasting peace in the region. (para. 282)

Status of ICJ Advisory Opinion: What does “non-binding” actually mean?

Organizations like the Centre for Israel and Jewish Affairs (CIJA) have called on the government of Canada to “reject the ICJ’s non-binding opinion”.

This type of comment stands in stark contrast to the call from 38 UN independent experts who stated in part:

Israel and other UN Member States must immediately comply with the authoritative determination by the International Court of Justice (ICJ) on Israel’s presence in the occupied Palestinian territory… – 38 UN independent experts

The International Court of Justice has itself addressed the meaning and import of its “Advisory Jurisdiction”.

In their words:

Despite having no binding force, the Court’s advisory opinions nevertheless carry great legal weight and moral authority.

They carry such weight because, in Advisory opinions, the ICJ exercises its power to determine the precise scope of rights and obligations of states and pronounces what international law requires a state to do or refrain from doing.

Canadian international law professor Ardi Imseis, in a recent Just Security podcast, elaborates further:

There is no question that, as the principal judicial organ of the UN, mandated  … with providing authoritative interpretations of public international law and with the fact that the Court has done so in this case in respect of international legal principles that across the board amount to customary international law which is already binding on all states…. all of that is binding as a matter of public international law. [Emphasis added.]

US reaction to historic ICJ Advisory Opinion

In an email sent to the media on the day after the Court handed down its opinion, the US State Department spokesperson stated in part:

we are concerned that the breadth of the court’s opinion will complicate efforts to resolve the conflict.

In particular, in the US view, the ICJ opinion that Israel must withdraw as soon as possible from the Palestinian territories was “inconsistent with the established framework” for resolving the conflict.

US asserts that occupation can only end when Israeli security is assured

In its written and oral submissions during the ICJ proceedings, the US elaborates further, asserting:

It would not … be conducive to [the] achievement of the established framework [for a two-state solution] to issue an opinion that calls for a unilateral, immediate and unconditional withdrawal by Israel that does not account for Israel’s legitimate security needs. (US oral submission at p. 54, para. 25.)

As for the Israeli violations of international law in the OPT, the US goes on to say:

Whatever the Court’s opinion on the legal consequences of particular violations of international law, [a court-ordered end to the occupation] … would be contrary to the established framework [for a two-state solution], which the Security Council and General Assembly have structured around the two interdependent and inseparable elements: not only withdrawal, but also the conditions necessary for peace and security for all States in the region. An enduring peace requires progress on both of these balanced elements. (page 54, para. 25)

A recent Carnegie Foundation analysis of the American position puts it at its plainest:

According to the US legal brief and oral argument to the ICJ, the “land for peace” framework [which includes the Oslo Accords] requires that Israel’s security needs be met before the occupation can end. Once that is achieved and memorialized in a bilateral agreement, a two-state solution becomes possible.

ICJ states that the ‘negotiating framework’ cannot override Israel’s obligations under international law

As part of identifying the applicable law and obligations relevant to Israel’s policies and practices in the OPT, the Court specifically considered the impact of the Oslo Accords, signed by Israel and the PLO, that recognize Israel’s right to maintain its presence in the OPT and which were intended to promote a two-state solution.

Accordingly, in para. 102 they stated:

the Court considers that the Oslo Accords cannot be understood to detract from Israel’s obligations under the pertinent rules of international law applicable in the Occupied Palestinian Territory.

The Court then specifically addressed the American argument that Israel’s security needs justify continued occupation, in accordance with the Oslo II  Accords, stating:

… the Oslo Accords do not permit Israel to annex parts of the Occupied Palestinian Territory in order to meet its security needs.

Nor do they authorize Israel to maintain a permanent presence in the Occupied Palestinian Territory for such security needs. (para. 263)

In the words of the aforementioned multitude of UN Experts:

The Court has finally reaffirmed a principle that seemed unclear, even to the United Nations: Freedom from foreign military occupation, racial segregation and apartheid is absolutely non-negotiable.

UN Emergency Session on the ICJ Advisory Opinion

On 17 and 18 September the UN General Assembly held an emergency special session to consider and approve a resolution calling for the full implementation of the ICJ Advisory Opinion, including Israel’s withdrawal from the OPT within one year.

Resolution calls for actions by states and UN to implement ICJ Advisory Opinion

Demands that Israel brings to an end without delay its unlawful presence in the Occupied Palestinian Territory … [within] 12 months…” – Operative para. 2 of UNGA resolution

The preambular paragraphs outline the key elements of the ICJ Opinion.

In the operative paragraphs, the General Assembly demands that Israel withdraw from the OPT within 12 months, identifies a range of specific actions that states and the UN are called upon to undertake to help end the occupation and hold Israel accountable for its violations of international law, and decides to hold an international conference to implement UN resolutions on the two-state solution.

To implement sanctions, including travel bans and asset freezes, against natural and legal persons engaged in the maintenance of Israel’s unlawful presence in the [OPT]…. (op. para. 5(c))

Among other actions, states are called upon to end the import of products originating in the Israeli settlements; to stop the provision of arms, munitions, and related equipment to Israel “if it is reasonable to suspect that they may be used in the occupied Palestinian territory”; and to implement sanctions against entities engaged in maintaining the illegal occupation.

The resolution also calls for the convening of a conference of the parties to the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War and requests the UN Secretary-General in consultation with the UN High Commissioner for Human Rights

to present proposals for the establishment of a mechanism to follow up on the violations by Israel of article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination identified by the International Court of Justice in its advisory opinion (op. para. 12)

The UN Secretary-General is further requested to submit a report to the General Assembly within three months on:

on the implementation of the present resolution, including any actions taken by Israel, other States and international organizations, including the United Nations, for the implementation of its provisions or for any violations thereof (op. para. 14)

For a UN summary of the resolution, click HERE.

Resolution passes with a two-thirds majority, but Canada and others abstain

Today the General Assembly adopted a resolution welcoming the advisory opinion of the International Court of Justice on the legal consequences arising from Israel’s policy and practices in the Occupied Palestinian Territory, including East Jerusalem.

The resolution was adopted… pic.twitter.com/yxzLKO2RmR

— UN GA President (@UN_PGA) September 18, 2024

The resolution passed overwhelmingly with a recorded vote of 124 in favour, 14 against (including Israel and the US) and 43 abstentions. Western states who voted in favour of the resolution include Belgium, Estonia, Finland, France, Greece, Iceland, Ireland, Japan, New Zealand, Norway, Portugal, Slovenia, and Spain.

a highly important ruling from the principal judicial organ of the United Nations – Norway

Among the powerful statements made in support of the full and timely implementation of the ICJ ruling, as reflected in the resolution, was that of Norway, delivered by its Permanent Representative to the UN in New York, Ambassador Merete Brattested, available here.

Speaking on the day before the vote, he stated in part:

Tomorrow, a resolution building on ICJ’s Advisory Opinion, will be put to a vote. It is aligned with the Court’s opinion and aims at ensuring that the latter is upheld. Norway will therefore vote in favour. And we encourage everyone to do the same.

Respect for international law is a prerequisite for maintaining global peace and security.

His statement concludes:

The current trajectory is not sustainable. A change of course is urgently needed. The Court has provided a framework to remedy the situation. It deserves all our attention.

In addition to Canada, those who abstained included Australia, Austria, Bulgaria, Germany, Netherlands, Sweden, Switzerland, and the UK.

Canada alleges insufficient attention in UN resolution to Israel’s security needs

Global Affairs issued a statement setting out Canada’s reasons for its abstention.

There is no mention in the resolution of the need to end terrorism, for which Israel has serious and legitimate security concerns. Canada continues to support Israel’s right to defend itself from terrorism.

In this statement, Canada reiterates its 26 July 2024 call on Israel to “respond substantively to the [Advisory] Opinion.” Global Affairs then bizarrely argues that the resolution holds Israel “solely responsible for the conflict” and “makes no mention … of the need to end terrorism” when the focus of both the ICJ Advisory Opinion and the resolution is on Israel’s violations of international law that cannot be justified by its security needs, legitimate or otherwise.

For a detailed summary of the debate, click HERE.

Lack of attention to Israeli security concerns cited by other abstaining countries

Canada was not alone in abstaining on these grounds. The representative of Switzerland, for example, stated:

While there is no doubt about the illegality of Israel’s occupation, the one-year timeline referenced in the text for the withdrawal of Israel does not acknowledge that country’s legitimate security concerns.

New Zealand, on the other hand, while expressing concern about the “unrealistic deadline” of one year for Israeli withdrawal from the OPT, nonetheless voted in favour of the resolution, and further indicated that

in the next 12 months, we expect Israel to take meaningful steps towards compliance with international law.

Despite the ICJ ruling, the US is still insisting on primacy of Israeli security concerns

The US response to the ICJ ruling makes it clear that they continue to insist on a position that has effectively given Israel control over when or whether its military occupation over Palestinians will end. This has remained so despite Israel’s adamant opposition to a two-state solution, vividly exemplified in July 2024 by the passage in the Israeli Knesset of a resolution rejecting Palestinian statehood, even as part of a negotiated settlement with Israel.

The resolution, which passed by a majority of 68 votes, with only nine parliamentarians voting against it, reads in part:

The Knesset [parliament] of Israel firmly opposes the establishment of a Palestinian state west of Jordan.

The establishment of a Palestinian state in the heart of the Land of Israel will pose an existential danger to the State of Israel and its citizens, perpetuate the Israeli-Palestinian conflict and destabilise the region.

Israel limited its participation in the ICJ proceedings

Israel did not participate fully in the ICJ proceedings. It submitted only a five-page written statement and a set of annexes, and chose not to participate at all in the oral proceedings. 

Aside from the biased nature, in their view, of the questions put before the Court by the General Assembly, Israel’s main argument was that the request for an advisory opinion in the General Assembly resolution was

contrary to the established legal framework governing the Israeli-Palestinian conflict, and an abuse of international law and the judicial process.

RI President Peggy Mason comments:

Israel seemed to be arguing that the World Court should not be commenting on the “established legal framework” when that is their role and exactly what they did.

Netanyahu heaps contempt on the ICJ ruling

Predictably, the Israeli Prime Minister’s reaction to the pronouncements of the world’s highest court was one of ridicule and contempt, and continued rejection of the very notion of a two-state solution:

The Jewish people are not occupiers in their own land…. No decision of lies in The Hague will distort this historical truth, and similarly, the legality of Israeli settlements in all parts of our homeland cannot be disputed.

Note that Israel did not make the ‘historic homeland’ argument before the Court but instead relied on the American approach — that Israeli security can only be assured through the “established negotiating framework”, over which, as we discussed earlier, Israel holds a de facto veto.

But what if Israeli’s legitimate security needs can be assured?

Israeli legal experts writing about the ICJ hearings before the decision was rendered put forth the following argument:

These [Israeli] rights [under the established negotiating framework] to peaceful co-existence and not to be subject to acts of aggression… have not been legally negated or forfeited by Israel’s violations of international law in the occupied territories.

They, therefore, concluded:

As a result, the Palestinian right to self-determination needs to be realized in a manner that does not abrogate them, or that, at least, attempts to reconcile with them. [Emphasis added.]

This is where the UNTAP model comes in.

UNTAP model reconciles US view and compliance with international law

UNTAP will deliver post-occupation security for both Israel and Palestine – Ceasefire post on 2 July 2024

A UN Transitional Administration in Palestine (UNTAP) with the mandate and resources to provide interim governance and security throughout the OPT while building local capacity for self-governance and elections is the means by which Israel’s illegal occupation, policies and practices can be brought to an end, and Palestinian security assured, without compromising Israel’s legitimate security needs or the negotiations on a viable two-state solution.

Canada began its explanation for its abstention on the General Assembly resolution on the Advisory opinion with these words:

Canada’s position on questions relating to the Israeli-Palestinian conflict [is] guided by our historic and unwavering commitment to international law and a framework that best guarantees peace and security for both Israelis and Palestinians.

Ceasefire.ca comments:

This is exactly what UNTAP offers.

The next post will look more closely at the UNTAP model

Our next post will discuss how a UN transitional administration might best be adapted to the Occupied Palestinian Territory, bearing in mind that the ICJ specifically called on the General Assembly and the UN Security Council to elaborate the precise modalities to bring to an end Israel’s unlawful presence in the Occupied Palestinian Territory.

Whither Canada?

The Government of Canada has called upon Israel to “respond substantively” to the ICJ Advisory Opinion. Canada must do the same.

We call upon the Government of Canada to immediately review all of its interactions with the State of Israel to ensure compliance with Canada’s international obligations of non-recognition of, and non-assistance in the maintenance of, the situation created by Israel’s illegal presence in the Occupied Palestinian Territory.

TO STOP THE GAZA WAR, CONTINUED DIRECT PRESSURE ON THE GOVERNMENT OF CANADA FROM CANADIAN CITIZENS IS ESSENTIAL AND EFFECTIVE.

CLICK HERE  FOR LINKS TO GOVERNMENT MINISTERS AND OPPOSITION CRITICS AND YOUR LOCAL MEMBER OF PARLIAMENT.

Photo credits: Wikimedia Commons (UN HQ, NYC); UNRWA (Gaza bombing).

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