By Prof Upendra Baxi
Israel witnessed this week six dead hostages; their brutal killing led to mass grief and anger, led to a mass protest, and a general strike against the war hawks. The families and much of the public blamed Prime Minister Benjamin Netanyahu, saying the hostages could have been returned alive in a deal with Hamas but the public response of Netanyahu was: “No one is more committed to freeing the hostages than me. But no one will preach to me.”
Israelis had poured into the streets late Sunday in grief and anger in what appeared to be the largest protest since the beginning of the war. The families and huge public blamed Netanyahu, saying the hostages could have been returned alive in a deal with Hamas. A rare general strike was held across the country on Monday. But Netanyahu is reported as saying: “No one is more committed to freeing the hostages than me. But no one will preach to me”, adding that “Israeli forces must retain control over the Philadelphi Corridor along the Egypt-Gaza border, which has emerged as a primary sticking point in talks mediated by the United States, Egypt and Qatar”.
Even so, as some commentators have already noted, the timing of the International Court of Justice (ICJ, July 18, 2024) Advisory (non-binding) Opinion is indeed significant considering international opinion that an enduring ceasefire must be reached despite Israeli military action, following the brutal Hamas massacre and mayhem, sexual violence in the October 7 event. And the war-weary world questions the excessive pursuit of the prolonged self-defence war, which admits of no-reasoned ceasefire, and is wary of the mounting Palestinian casualties (estimated at 40,600 by the Palestine authorities) and war cruelties that do not take any account of age, gender, and physical frailty. One hopes, even against hope, that the great normative force of the ICJ opinion, especially affirming the binding norms of international law, will advance the prospects of a just peace in the region.
The Opinion advises Israel to end the occupation of the Palestinian territories “as rapidly as possible” and make full reparations for its “internationally wrongful acts” holding that the occupation violates international law. In what international law calls erga omens doctrine, the Court advises other states that they are now under an obligation to comprehensively recognise the illegality of occupation and not to aid or assist it.
Predictably, the office of the Palestinian President, Mahmoud Abbas, welcomed the Court’s opinion as “historic” and a “victory for justice” and the Palestinian Foreign Minister Riyad Al-Maliki called it a “watershed moment”. In a sharp contrast, the office of Netanyahu stated that: “The Jewish people are not occupiers in their own land—not in our eternal capital Jerusalem, nor in our ancestral heritage of Judea and Samaria [the occupied West Bank].” Terming it a “decision of lies in The Hague,” he said Israel will not “distort this historical truth, …. and the legality of Israeli settlements in all parts of our homeland cannot be disputed”. Whatever parties may say, however, does not affect the international legal position on which the future course of world political action may proceed.
International law is not written on stone, but based on a complex institutional web of customs, treaties, beliefs (about legality), and organizations, which may remain open to change. But it is too early to foretell whether the world’s political leaders may want to change the customary law of belligerent occupation which prohibits an occupying power to proceed with lawful annexation; till then, however, the extant international law ought to prevail.
It is true that the State of Israel did not appear before the ICJ as other 52 states did (in an unparallelled record for advisory opinions). But it urged (in July 2023) the ICJ to dismiss the request because questions raised failed to “recognise Israel’s right and duty to protect citizens”, or to address Israeli security concerns or acknowledge Israel-Palestinian agreements to negotiate issues, including “the permanent status of the territory, security arrangements, settlements, and borders”. The ICJ rightly said that while it had taken account of Israel’s security concerns, these could not “override the principle of the prohibition of the acquisition of territory by force”.
While no one doubts that a political settlement in the region could only be reached by negotiations, it is extremely doubtful that Israel’s difficulties with, and objections to, the advisory opinion were not fully considered by the ICJ. It is ethically extravagant to say (as Israel submitted) that the questions put to the Court were prejudiced and failed to “recognise Israel’s right and duty to protect its citizens”. The Court, to reiterate, has, however, found that the security concerns do not “override” the principle of the prohibition of the acquisition of territory by force” and the imposition of “disproportionate” restrictions on all Palestinians.
Of note, are two aspects of the decision: self-determination and ecocide. The ICJ links, almost causally, the prohibition of the acquisition of territory by force and the Palestinian people’s right to self-determination; besides, it goes into great details of “forcible evictions”, widespread “house demolitions”, and “restrictions on residence and movement” and somewhat uncharacteristically, though refreshingly, dwells on the restrictions on the access of the Palestinian population to water.
The ICJ finds these in breach of Article 3 of the international convention on the elimination of all forms of racial discrimination (CERD), which explicitly says: “Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” However, on this aspect of the matter, (as Jian Bastaki analyses in the EJIL Talk (the blog of the European Journal of International Law, August 27, 2024) there is much discussion concerning the burden of proof to establish “mens rea”—the specific intent. Justice Nolte is of the view, in his separate opinion, that the illegal act of Apartheid required showing that “the purpose of these acts is the establishment and maintenance of an institutionalized regime of domination and oppression”; Justice Tladi (himself an Apartheid system violated) agreed. In contrast, President Nawaz Salam (elected the 27th president of ICJ, and a former distinguished Lebanese diplomat and scholar) maintained that the commission of such discriminatory acts plus an “intention to maintain that regime” undeniably amount to Apartheid. The latter standard seems to relate also to the definition and standard of proof of genocide as well, which emerges now as a frontal question, given certain binding, tough contentious proceedings against the state of Israel and other states.
The ending of occupation “as soon as possible” means not just ending to all unlawful acts that maintain it “but cessation of acts that seek to modify the demographic composition of any parts of the occupied territory”. Also contemplated is “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”. Further notable are measures for the reparation, restitution, compensation and/or satisfaction, defining the former as “Israel’s obligation to return the land and other immovable property, as well as all assets seized from any natural or legal person since its occupation started in 1967, and all cultural property and assets taken from Palestinians and Palestinian institutions, including archives and documents”. It is understood that where reparations are not possible, compensation should be paid instead. The more important aspect to note here is the ways in which the ICJ accords primacy to environmental protection and integrity.
Further course of action now is in the hands of the United Nations General Assembly where considerable opposition to any major course of action will be led by Israel and its European and other allies. All the same, it would be difficult, if not altogether impossible, to contest the illegality of annexation (and the subsequent fallouts of related action), without jettisoning some basic norms and principles evolved through international custom or treaties prescribing the minimum obligations of morality, legality, and dignity, on the concerned states and the diffuse community of states.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer