Hearings have started at the International Court of Justice (ICJ) in The Hague on Monday in a landmark case in which 52 countries are jointly presenting evidence about the legal consequences of Israel’s occupation of Palestinian territories.
The case stems from a request from the United Nations General Assembly (UNGA) on December 30, 2022. A majority of UNGA members voted to seek the court’s opinion on the legal consequences of the continuing Israeli occupation of Palestine. The hearings will last until February 26.
A panel of 15 judges is expected to take about six months to issue a non-binding, advisory opinion on the request, which also asks them to consider the legal status of the occupation and its consequences.
Israeli Prime Minister Benjamin Netanyahu rejected the legitimacy of the ongoing proceedings at The Hague in a statement released by his office on Monday.
Netanyahu appeared to suggest he would disregard any ruling against Israel by the ICJ when he added that Israel will maintain full “security control” over areas that are west of the Jordan River. “Of course, this includes Judea and Samaria, and the Gaza Strip,” the statement added. “Judea and Samaria” refers to the West Bank.
What has happened in the hearings so far?
On Monday, Palestine presented its case at the ICJ. “We call on you to confirm that Israel’s presence in the occupied Palestinian territory is illegal,” Riyad Mansour, the Palestinian representative to the United Nations, said during an emotional speech.
“A finding from this distinguished court … would contribute to bringing [the occupation] to an immediate end, paving a way to a just and lasting peace,” he said. “A future in which no Palestinians and no Israelis are killed. A future in which two states live side by side in peace and security.”
International law expert Paul Reichler, representing Palestine in the hearings, told the court that the policies of Israel’s government “are aligned to an unprecedented extent with the goals of the Israeli settler movement to expand long-term control over the occupied West Bank, including East Jerusalem, and in practice to further integrate those areas within the territory” of Israel. He deemed the occupation “gravely unlawful”.
On Tuesday, other countries including South Africa, Saudi Arabia and Belgium presented arguments. Representatives from the countries condemned Israeli occupation, deeming it violent and illegal.
On Wednesday, several more nations including the US, Russia, Egypt and Hungary were giving their points of view.
Canadian officials announced at the last minute that they would not be presenting in oral proceedings on Tuesday, but did not give a reason. The court is expected to hear varying opinions, however.
The way in which each country voted in the UN General Assembly in the 2022 vote that prompted this case may be indicative of their approach in upcoming days in The Hague. The United States, United Kingdom and Canada voted against referring the case, while Brazil, Spain and Switzerland abstained.
What constitutes an ‘occupation’?
Article 42 of the 1907 Hague Regulations, pertaining to conduct in warfare, states that “territory is considered occupied when it is actually placed under the authority of the hostile army”. The regulations state that occupation is only permitted to be provisional, temporary control and is only meant to last while armed conflict lasts.
International law, including the Hague Regulations and the Geneva Convention, which pertains to conduct during armed conflict and protects civilians not taking part in hostilities, sets out provisions that protect the rights of those living under occupation.
Is Israel breaking international law on occupation?
Under international law, an occupying power is supposed to introduce as few changes as possible and not alter the status quo of the territory from before it was occupied. The occupier is also supposed to adhere to regulations including the protection of occupied peoples’ property and allowing the flow of humanitarian aid.
An occupying power should not move its own people into the territory it is occupying, under international law.
Israel has been criticised on many occasions for failing to adhere to these principles during its occupation of the Palestinian territories. Over the decades, for example, more and more illegal settlements have been built and there are now around 750,000 Israeli settlers living on Palestinian land.
Palestinians who are arrested and charged with crimes in the West Bank are tried in military courts, rather than civil ones. There are also many thousands of Palestinian prisoners being held in detention without charge.
Furthermore, international humanitarian agencies say Israel has prevented humanitarian aid trucks from reaching parts of Gaza.
How did the occupation of the West Bank come about?
Israel occupied the West Bank and East Jerusalem after the Six-Day War in 1967. These regions were formerly under Jordanian control.
Israel made its annexation of East Jerusalem official when it passed the Jerusalem Law in 1980, stating that East and West Jerusalem combined were the capital of Israel.
Despite several peace efforts such as the 1993 Oslo Accords and the 2000 Camp David negotiations since then, Israel has not withdrawn from the West Bank. The Oslo Accords resulted in the creation of the Palestinian Authority (PA), which was supposed to be temporary. The West Bank was divided into Areas A, B and C in 1995, denoting how much control the PA has in each. A final agreement, which was supposed to be reached five years later, never came into existence.
Was Israel occupying Gaza before the war began last October?
Israel occupied Gaza, which had been under the control of Egypt, in 1967.
However, in 2005, Israel technically withdrew from Gaza under then-prime minister Ariel Sharon’s disengagement plan, pulling out 9,000 Israeli settlers, when the situation there became too tense.
Israel and its supporters, therefore, claim it was no longer occupying Gaza.
However, the Gaza Strip has been under an Israeli land, air and sea blockade since 2007, which is why the UN, Amnesty International and other aid organisations and think-tanks still refer to Gaza as an “occupied territory”.
Do Israel’s policies towards Palestinians constitute apartheid?
At the ICJ hearings this week, South Africa accused Israel of practising an “extreme form of apartheid” against Palestinians. It isn’t alone.
Many commentators have used the word “apartheid” in connection with Israel’s occupation of Palestine. The word literally means “apartness” in Afrikaans – a policy of separation. Apartheid was implemented against Black residents of South Africa from the 1940s until its abolition in the early 1990s.
According to the 1998 Rome Statute to the International Criminal Court and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, apartheid consists of three main elements.
- An intent to maintain domination by one racial group over another.
- A context of systematic oppression by one racial group over another.
- Inhumane acts.
Among those who describe the Israeli treatment of Palestinians as “apartheid” are Amnesty International and Human Rights Watch. When Amnesty issued a report in 2022, its secretary general, Agnes Callamard, stated: “Whether they live in Gaza, East Jerusalem and the rest of the West Bank, or Israel itself, Palestinians are treated as an inferior racial group and systematically deprived of their rights.”
The report found that policies of segregation, dispossession and exclusion across all the territories under its control “clearly amount to apartheid”.
Palestinians in Israel and the occupied territories face at least 65 discriminatory laws, according to Adalah, a human rights law group in Israel.
What is life like under Israeli occupation?
Under occupation, the West Bank is rife with military checkpoints and patrols. Movement by Palestinian residents is severely restricted under Israel’s permit regime in the West Bank and for movement in and out of Gaza. Under this system, Palestinians are required to obtain permits to move between the West Bank, Gaza and East Jerusalem. These permits can be extremely difficult to obtain. Palestinians are often subjected to violence and theft from settlers with little or no recourse to justice.
Military raids, roadblocks, violence by settlers and curfews have become much more severe since October 7, and Palestinians are living under curfews – often shot at by armed settlers who are supported by Israeli forces if they leave their homes or even move too close to their windows.
Israeli forces regularly destroy infrastructure including private property in the West Bank. Typically, the reasons given for this include the owner not having the correct permits – which are often nearly impossible to obtain – to own the property.
Between 2009 and February this year, Israeli authorities demolished 10,472 Palestinian-owned structures in the West Bank, displacing 15,825 Palestinians, according to the UN Office for the Coordination of Humanitarian Affairs (OCHA).
Who are the settlers?
Illegal Israeli settlers have also been causing the displacement of Palestinians, by taking over land and farmland in the West Bank and destroying Palestinian property, for decades.
On the first day of the ICJ hearings, legal representative Reichler argued that Israel’s goal is to permanently acquire Palestinian territory, which is why forces and settlers violently expel Palestinian citizens from their homes.
While the Israeli government officially stopped building new settlements in the West Bank after signing the Oslo Accords in 1993, the settlements continued to expand. In 2021, the government started building settlements again.
Now, the Israeli government actively enables settlements by providing settlers with financial incentives to move into Palestinian territory, including lower costs of living. The government itself has built and funded houses for settlements in the West Bank.
The number of Israeli settlers living in Palestinian territory has dramatically increased over the past few years. As of February 11 this year, the number of settlers in the West Bank, excluding East Jerusalem, stands at 517,407, up from 502,991 a year earlier.
The Israeli settlements are considered illegal under international law as they violate the Fourth Geneva Convention, which bans an occupying power from transferring its own population to the area it occupies. Settlements also exist in East Jerusalem, where some 350,000 Palestinians live.
Where is the separation wall?
In 2002, Israel constructed a 708km (440 mile)-long separation wall (also known in Arabic as “the apartheid wall”) through the West Bank.
Only around 15 percent of the wall follows the 1967 Green Line, the demarcation line between Israel and the West Bank as stated in the 1949 Armistice Agreements between Israel and its neighbours – Egypt, Jordan, Lebanon and Syria – following the 1948 Arab–Israeli War. The rest (85 percent of the wall) encroaches into Palestinian territory.
In 2004, the ICJ made a nonbinding ruling that the construction of this wall was in violation of international law. It called for its dismantling and ordered Israel to pay reparations for any damage caused by its construction. Two decades after that ruling, however, the wall still stands, slicing up Palestinian communities and cutting residents off from their lands, critical infrastructure and services.
Ghassan Daghlas, a Palestinian official who monitors settlement activity in the northern West Bank, told Al Jazeera in 2019 that Israel’s violation of the ruling demonstrated that it considers itself above international law and was unafraid to show this to the global community.
What does the international community say about the occupation?
Israel occupied East Jerusalem at the end of the 1967 war. It made its annexation of East Jerusalem official when it passed the Jerusalem Law in 1980, saying that East and West Jerusalem combined were the capital of Israel.
In 1980, however, the UN Security Council (UNSC) ruled the Jerusalem Law “null and void” in UNSC Resolution 478.
Most of the international community still considers East Jerusalem and the West Bank to be Palestinian territory illegally occupied by Isreal. Palestinians want East Jerusalem to be the capital of any future Palestinian state.
No major country in the world recognises unified Jerusalem as Israel’s capital, with the exception of the US. On December 6, 2017, former US President Donald Trump recognised Jerusalem as the capital and moved the US embassy there. While a majority of countries have their embassies in Tel Aviv, Guatemala, Honduras, Kosovo and Papua New Guinea also have their embassies in West Jerusalem.
Russia recognises West Jerusalem as the capital of Israel, and East Jerusalem as “the capital of the future Palestinian state”. In 2022, Australia reversed its recognition of West Jerusalem as Israel’s capital.
Israel also unilaterally annexed the Syrian Golan Heights in 1981, a move recognised in 2019 by the US, the only country in the world to do so.
In 1988, the UN General Assembly recognised Palestine’s declaration of independence. In 2012, the UNGA passed a resolution granting Palestine “non-member observer state” status, effectively acknowledging it as a sovereign state.
The United Nations has 193 member states. Of those, 162 (84 percent) recognise Israel and 138 (72 percent) recognise the State of Palestine.
