Understanding The Hague’s proceedings against Israeli occupation

While the hearings on the possibility that Israel committed genocide in its war in Gaza have attracted the world’s attention, another case currently before the UN’s highest court is no less crucial to establishing a legal framework for the Israeli-Palestinian case.

What’s going on at the ICJ?

The ICJ has held hearings since Feb. 19 which will continue until Feb. 26. Bringing together a record number of participants, with more than 50 states and three intergovernmental organizations, namely the League of Arab States, the African Union and Islamic Conference Organisation, the proceedings underway are historic in terms of international law.

The judges in The Hague will have to give their opinion on the legality of Israel’s occupation system in Palestinian territories. This proceeding was instituted well before South Africa filed the genocide case before the same court, following the war waged by Israel in the Gaza Strip.

The current case dates back to December 2022, when the UN General Assembly adopted a resolution asking The Hague to rule on the occupation. The resolution was passed by a vote of 87 in favor and 26 against, with 53 abstentions. The Western countries were divided on the issue, while the Arab countries voted unanimously in favor of the resolution.

What must the ICJ rule on?

The ICJ will be asked to give an advisory opinion on the following question: What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures? Although several UN reports found that this occupation is illegal, no judge has so far ruled that it is.

Three factors determine if an occupation is illegal under international law: If the occupation becomes an annexation, if there is a violation of the right to self-determination of the people concerned and if it is accompanied by discrimination or apartheid policies.

According to a study submitted by Michael Lynk, former United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, to the court, Israel — as the occupying power — “is in gross violation of all three of these norms and is, therefore, a bad faith occupier.”

In March 2022, Lynk submitted a report to the UN Human Rights Council in which he concluded that the situation in the occupied Palestinian territories constitutes apartheid. Human rights organizations, including Amnesty International and Human Rights Watch, also made this accusation.

What did the Palestinian delegation plead?

The Palestinian delegation was the first to open the hearings. For three hours on Monday, it outlined the extent and consequences of “the acquisition of territory by force” in the West Bank, where 700,000 Israeli settlers live, in Gaza and East Jerusalem. It demanded “the right to self-determination” and “a ban on apartheid,” as Riyad al-Maliki, the Palestinian Foreign Affairs Minister, called for at the opening of the public sitting, wearing a kuffiyeh around his neck.

“Successive Israeli governments have given the Palestinian people only three options: Displacement, subjugation or death,” he said. Commenting on the daily life of Palestinians under occupation, the minister described, using maps showing how the Palestinian territories evolved from the British mandate to present day, a situation where “your lives, your community and your homes are under constant threat. Your loved ones can be put in jail, your land can be stolen, colonized and annexed without hesitation. There is no freedom anywhere. Israel can destroy Gaza and kill tens of thousands of Palestinians.”

These words echo at a time when Israel’s war in the enclave has caused more than 30,000 deaths and injuries among Palestinians, according to Gaza’s health ministry.

What does an advisory proceeding mean?

Unlike the genocide case, which obliges Israel as a member state of the UN, and subsequently of the ICJ, the highest UN court is only submitting an advisory opinion here, which is not binding on the state concerned.

Israel refused to take part in the debates, as it is entitled to do. As part of the proceedings, The Hague calls on the member states and international organizations that are likely to provide information on the matter to submit a written statement or to make an oral statement. Other parties may also provide the court with information and take part in the proceedings.

Despite its non-binding power, the institution stresses that its advisory opinions “nonetheless carry great legal weight and moral authority” and have “peace-making virtues.”

Once the opinion has been issued, the UN General Assembly could also decide what action to take and possibly make its effects binding.

What are the possible consequences of the ICJ decision?

In 2004, the ICJ issued its first advisory opinion on the legality of Israel’s construction of a wall in the West Bank — which Palestinians and rights groups called the Apartheid Wall — and ruled that it is illegal and should be destroyed. Twenty years later, in the absence of an enforcement mechanism, the implementation of the opinion has remained a dead letter.

On the second day of the public sitting this week, Saudi Arabia, which was in the process of normalizing relations with Israel before the war in Gaza, expressed through its delegation its “deep disgust at Israel’s prolonged impunity,” considering that Israel has never concealed its intention to maintain and extend the illegal settlements despite international law.

According to Amnesty International, which considers the Israeli occupation illegal, putting an end to this regime should imply restoring Palestinian rights by lifting the brutal blockade on Gaza, dismantling Israeli settlements in the West Bank, including East Jerusalem, and reversing its illegal annexation. “It would allow Palestinians to move freely in the areas where they live and allow families separated by different legal statuses … to be reunited,” Amnesty noted.

Without changing the situation on the ground, the possibility that the court recognizes the illegality of the Israeli occupation could nevertheless have strong political and symbolic repercussions. The ICJ opinion, which should be delivered within six months of the end of the hearings, could further undermine Israel’s reputation internationally, at a time when a genocide case also targets it before the same legal institution. It could also force states to step up the pressure on Israel as the court examines the legal consequences of Israel’s practices “for all States and the United Nations.”

Which states are opposed to the proceedings?

Israel refused to take part in the case debates. When the UN passed the resolution, Israeli Prime Minister Benjamin Netanyahu described the proceedings as “shameful” and “contemptible.” At the same time, his government merely sent a five-page memorandum to the court in July, in which it denounced a “clear distortion of history” of the Israeli-Palestinian case and blamed the stagnation on the Palestinian leadership's opposition to any offers of settlement. While the proceedings received great international media attention, they were not practically covered in Israel.

The US representatives, who had been opposed to any ICJ intervention in the Israeli-Palestinian case, arguing that it could constitute an obstacle to the continuation of negotiations between the two sides, clarified their position when they took the stand on Wednesday.

“The US is in no way suggesting that the Court has no role to play or that it must not rule on international law violations, but [it should] exercise its advisory role. It is important that the court keeps in mind that the UN Security Council has already adopted measures to address the issue,” said the US State Department official Richard Visek, reaffirming the need for a two-state solution.

Washington advocates the principle of “land for peace,” considering that the withdrawal of Israeli forces from the Palestinian territories must be conditional on “an end to belligerence and respect for Israel's right to live peacefully in the region.”

This article was originally published in L'Orient-Le Jour. Translated by Joelle El Khoury.