February 26, 2024
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A man waves a Palestinian flag in front of the International Court of Justice
The United Nations' top court, the International Court of Justice (ICJ), is hearing final arguments in a case challenging Israel's 56-year occupation of the West Bank and Gaza Strip.
The key question in this week's hearings is: What are the legal consequences of Israel's occupation of the Palestinian territories?
It may not be as dramatic as recent World Court cases, but leading international lawyer Philippe Sands told the BBC: “In terms of the legal outcomes and the resolution that ultimately needs to be found, this is as significant as it gets goes.”
This case was initiated by a resolution of the UN General Assembly (UNGA) in December 2022, before the Hamas attacks on October 7 last year and Israel's military response in the Gaza Strip.
What arguments were heard?
On the opening day of the hearings last week, Palestinian Authority (PA) Foreign Minister Riad al-Maliki accused Israel of “colonialism and apartheid” and a violation of the Palestinian people's right to self-determination.
He illustrated his presentation with a series of maps that appeared to show the dramatic erosion of Palestinian territory.
The final image was shown of Israeli Prime Minister Benjamin Netanyahu at the United Nations General Assembly last September, holding up a map he called the “new” Middle East, from which all traces of Palestinian territory had been removed.
“On this map there is no Palestine at all, only Israel, which covers the entire land from the Jordan to the Mediterranean,” Mr al-Maliki said at the hearing.
“This shows you what the continued, continuous Israeli occupation of Palestine is intended to achieve – the complete disappearance of Palestine and the destruction of the Palestinian people.”
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Palestinian Foreign Minister Riad al-Maliki (left) told the hearing that Palestinian territory was being eroded by the occupation
International lawyer Paul S. Reichler told the International Court of Justice that permanent employment is a legal oxymoron. An occupation that lasts indefinitely becomes annexation, he said.
Philippe Sands, who was part of the Palestinian Authority's legal team, told the judges: “The right to self-determination… requires that UN member states immediately end the Israeli occupation.”
“No help, no support, no complicity, no contribution to acts of violence, no money, no weapons, no trade. Nothing.”
Many countries used her 30-minute lectures to argue that the Palestinian people's right to self-determination was being violated by the Israeli occupation.
Israel declined to participate in the hearings and instead submitted a written statement arguing that the proceedings were “detrimental” to ongoing efforts to resolve the conflict because the questions raised by the United Nations were prejudicial.
However, Israel's closest allies also took part.
The United States told the International Court of Justice that a withdrawal order without security assurances would be detrimental to peace negotiations. It asked the justices to ensure that any opinion would serve to strengthen, rather than destabilize, the prospect of a two-state solution.
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Richard Visek, a US State Department official, attended the hearing at the International Court of Justice
The UK went further than any other country and asked the panel of 15 international judges not to issue an opinion at all because Israel had not consented to the proceedings.
Several countries pointed to Hamas attacks that killed about 1,200 people and took more than 250 hostage to Gaza as evidence of Israel's need for security. In addition, they argued that any withdrawal of Israeli forces must be accompanied by security guarantees.
Why are these procedures important?
If the ICJ issues a non-legally binding opinion, it goes to the UN General Assembly, which passes a resolution. This would be significant and could be a catalyst for negotiations and set the legal parameters for a future negotiated settlement.
If the court finds that Israel's occupation is illegal, it will tell all UN bodies and nations that they must not do anything to support or contribute to the current situation.
Such a ruling could potentially have far-reaching implications for trade, but of greatest importance would be the implications for the legitimacy of Israel's position. It could become increasingly difficult for countries like the US to continue supporting Israel.
The current United Nations General Assembly case represents the first time since the 1940s that the United Nations' highest judicial body has had the opportunity to address the entirety of these issues.
In recent weeks, some of the ICJ presentations have gone viral on TikTok, showing how legal arguments that often feel distant and disjointed are, in this case, resonating with audiences well beyond the ICJ's Great Hall of Justice.
Meanwhile, Human Rights Watch has accused Israel of committing acts amounting to “collective punishment” by ignoring a separate International Court of Justice order that allowed aid to be delivered to Gaza, thereby affecting the 2.3 million in Gaza putting captured Palestinians at risk of starvation.
On Monday, Israeli officials confirmed that a response had been sent to the International Court of Justice to the court's Jan. 26 demand that Israel report on a series of steps to prevent genocide in Gaza.
The Israeli government has not yet disclosed the contents of the response.