Israeli occupation on trial at the Hague

A second case against Israel has been put to the International Court of Justice. This time, dozens of states decry its constant breach of international law and call for an end to its impunity.

Minister of Foreign Affairs of the Palestinian Authority Riyad al-Maliki (R) at the International Court of Justice at a hearing on the legal consequences of the Israeli occupation on February 19, 2024, in The Hague.
Minister of Foreign Affairs of the Palestinian Authority Riyad al-Maliki (R) at the International Court of Justice at a hearing on the legal consequences of the Israeli occupation on February 19, 2024, in The Hague.

Israeli occupation on trial at the Hague

Events in the Middle East continue to dominate the headlines as far away as Britain.

This week, the visit of the Rev. Dr Munther Isaac, Lutheran pastor of Bethlehem, to London was mired in controversy when the Archbishop of Canterbury, Justin Welby, refused to meet him. It was another example of the kind of timorous attitude Isaac had come to expect from religious leaders.

The Prince of Wales, in contrast, departed from protocol in expressing the hope that violence in Gaza would come to an end. This was a rare intervention for a member of the royal family to make, prompting heavily-veiled criticism from the royalist press, who are more accustomed to moaning about his brother.

Earlier this week, the UK’s parliament was due to discuss a ceasefire, but the proceedings degenerated into farce as members walked out in protest at the way in which voting had been arranged.

The most likely casualty of this is the Speaker, Sir Lindsay Hoyle, who ought to be above the fray at all times but who seems on this occasion to have acted in favour of his old party, Labour. The spectacle of a vote on a matter of such gravity being derailed has done nothing to repair the image of Britain’s political class.

Meanwhile, the Hague this week has seen the International Court of Justice back in the news after their recent hearing where South Africa put forward a case that Israel is engaged in genocide.

Flagging the obvious

Some 52 countries appeared at the hearing on whether to declare Israel’s occupation of parts of Palestine illegal. This may sound unnecessary – Israel’s presence in the West Bank is routinely alluded to as illegal already.

However, the UN’s resolution back in 1967, while calling for Israel’s forces to withdraw, did not specifically refer to the occupation as illegal. For this reason, following a UN general assembly vote in 2022, the judges have returned to the matter.

Judge Nawaf Salam, president of the ICJ, speaks during a public hearing on the legal consequences of Israel's occupation of Palestinian land in The Hague, Netherlands, February 19, 2024.

This separate case will inevitably not command the same attention as South Africa’s. Genocide is considered the greatest of all crimes.

Accusing a state which, perhaps uniquely, was born out of a previous genocide of the same crime threatened to add cognitive dissonance to the seriousness of the charge.

However, as Edward Said once observed, the Palestinians are the victims of victims. It is no secret that from its very inception, the ruling Likud party has had a contemptuous attitude toward Palestinian aspirations for statehood.

In fact, to quote English poet, William Blake, with every passing day, it is becoming increasingly evident that a ‘fearful symmetry’ exists between the plight of the Jews in war-torn Europe and that of the Palestinians in modern Israel.

To say so, however, immediately attracts opprobrium, as the South Africans duly found out.

The present case is more limited in its scope — specifically centring on Israel's occupation of Palestinian land after the 1967 war. As a consequence, it has not attracted anywhere near as much attention worldwide.

In Israel itself, according to Gideon Levy, the political analyst and contributor to the Haaretz newspaper, it has been totally ignored: “Israel’s media is helping to ignore it."

"Whatever is inconvenient or unpleasant to Israel, you can always trust the Israeli media to hide it from its viewers and readership. No TV stations saw it as important or interesting enough.”

Some 52 countries appeared at the ICJ hearing on whether to declare Israel's occupation of parts of Palestine illegal.

One would hope that the Israelis are unique in this regard. Though the case is not as sensational this time around, it is undoubtedly overdue.

After over half a century, the ICJ's 15-judge panel has been asked to review Israel's "occupation, settlement and annexation... 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."

Israeli politicians have regularly argued that it is not a formal occupation, as the lands were taken from Egypt and Jordan during a war and not from a sovereign Palestinian state. To which the only obvious reply might be a nonplussed "Duh?" Sovereignty, and the Palestinians' lack of it, is, after all, the whole point.

Call for accountability

Once again, South Africa was visibly present at the hearing. Their representative this time is Vusimuzi Madonsela, South Africa's ambassador to the Netherlands, who insisted, 'We must ask, when will Israel's decades-long impunity for widespread and systematic rights violations and norms of international law end – if not now?'

He then went on to decry Israel's ever-increasing 'depravity and bloodshed.'

France was similarly forthright in its criticism, with Anglo-French lawyer Philippe Sands insisting that "The right of self-determination requires that UN member states bring Israel's occupation to an immediate end."

With this in mind, Israel should be penalised right away: "No aid, no assistance, no complicity, no contribution to forcible actions, no money, no arms, no trade. No nothing."

On his part, Edward Craven for Guyana argued that occupation was "inherently and exclusively a temporary state of affairs." An occupying power does not acquire "one atom" of the occupied territory and cannot make permanent changes.

"Permanent occupation is military conquest; it is annexation, and annexation is, of course, strictly forbidden under international law," he said.

Some states were keen to draw the court's attention back to the situation in Gaza. The words of Cuba's representative were particularly damning.

Raquel Rodríguez-Camejo said that to qualify Israel's actions "merely as acts of apartheid would leave out the implicit intention to exterminate the Palestinian people, either in part or as an ethnic and religious group to whom the right to self-determination is denied."

Her warning regarding the time left to act could not have been starker: "We are convinced this court should not wait for the complete extermination of an entire nation before ruling on the matter."

Lana Nusseibeh, representing the UAE, focused on the religious aspect of the problem: "Israel has, in agreements with Jordan and with the Holy See, committed to the historic status quo and freedom of access to the holy places in Jerusalem."

"It is, therefore, gravely disconcerting that Israel has taken, and continues to take, measures which undermine the special character of Jerusalem and erase its cultural heritage."

Israel was in breach of its obligations by "repeatedly interfering with the holy places and hindering freedom of access to them."

She also went on to address the situation in Gaza: "The level of human suffering for people in Gaza is on a level rarely seen in human history. Israel has imposed a policy of collective punishment on the Palestinian people."

When will Israel's decades-long impunity for systematic rights violations of international law end – if not now?

Vusimuzi Madonsela, South Africa's ambassador to the Netherlands

Deflective arguments

Not everyone, however, was so critical of Israel.

In at least one case, the court was cautioned regarding the effects of its deliberations. Speaking for Hungary, Attila Hidegh asserted that the judges' intervention "may directly contribute to the escalation of the conflict."

"Potential utilisation of the court in the communication war could create narrow dividing lines and could continue to fuel tensions in one of the most severe conflicts in recent history," he added.

The US was one of two states (the other was Fiji) to argue against the idea that the court should declare Israel's occupation illegal.

State Department official Richard Visek maintained that the question the court was being asked to consider was one-sided, as it only focused on Israel's role in the occupation. 

The focus should instead be on the UN Security Council resolutions that, over the decades, had affirmed the commitment to the two-state solution.

He also said the allegations that Israel had breached the fourth Geneva Convention by transferring settlers to the occupied Palestinian territories should be addressed by the UN Security Council, not the court in the Hague.

Many of these positions could have been predicted long before the court was convened. There was bound to be a sense of going through the motions.

Heartfelt plea

Yet beyond all the rhetoric and legalese — at a time when it is not only the politicians in Britain who have sought to advance their own agenda by co-opting the horrors unfolding in Gaza — one speech, in particular, stood out from the rest for its heartfelt plea for justice.

It came from the Foreign Affairs Minister of the Palestinian National Authority, Riyad al-Maliki, who illustrated his presentation with five maps showing the dramatic erosion of Palestinian territory from the land established as Palestine under a League of Nations mandate in 1920.

The maps depicted the territory's proposed partition under a failed 1947 UN plan, its reduction to the West Bank and Gaza after the 1948 war that led to the creation of Israel and the fragments of Palestinian-run areas in the West Bank left by 2020 after decades of Jewish settlement.

Finally, he showed the court a picture of the Israeli prime minister, Benjamin Netanyahu, at the UN general assembly last September, holding up a map that he called the "new" Middle East in which all vestiges of Palestinian territory had been removed.

"There is no Palestine at all on this map, only Israel, comprised of all the land from the Jordan River to the Mediterranean Sea," al-Maliki told the hearing.

"This shows you what the prolonged, continuous Israeli occupation of Palestine is intended to accomplish – the complete disappearance of Palestine and the destruction of the Palestinian people."

"The Palestinians have endured colonialism and apartheid. There are those who are enraged by these words. They should be enraged by the reality we are suffering."

One only has to look at the statements coming out of the members of Netanyahu's war cabinet to see the endgame Israel is likely to be pursuing.

In view of the explicit desire to remove the Palestinian population altogether, creating a buffer zone seems too modest a war aim.

The Guardian has reported, based on satellite images, the construction of some kind of enclosed area on the Egyptian side of the Rafah border.

Given that the million and more Palestinians camping in Rafah have nowhere else within Gaza to go, it would be wilful naivety to assume that the satellite images lied.  

These maps show what the continuous Israeli occupation is intended to accomplish – the complete destruction of the Palestinian people.

Riyad al-Maliki, Foreign Affairs Minister of the Palestinian National Authority

Deeping agony

And so the agony of Gaza deepens with each passing minute. Even the pastor from Bethlehem admits he has struggled to overcome his despair and to pray.

Read more: Making sense of the senseless: Gaza's horrors throw up a mix of emotions

The people huddling in tents – cold, hungry, homeless and exposed to continuing bombardment – might be forgiven for running out of patience with eloquent expressions of solidarity.

In the end, no words will do. Suffering of this magnitude is ineffable.

The raw emotions came through in the speech of the Permanent Observer of Palestine to the United Nations to the UN, Riyad Mansour, who, at one point in his speech, his voice faltered when he referred to a future in which "Palestinian children are treated as children…"

Here, he paused for an agonising few seconds before adding, "…not as demographic..." Then, his words became almost impossible to make out after being overwhelmed by grief.

The sight and sound of such distress would have moved anyone with a trace of humanity left in them.

Mansour's broken sentences seemed to voice the plight of the people in Gaza more eloquently than any well-fashioned articulations of righteous anger and more shockingly than anything heard since the reverend Isaac's sermon when he claimed that a contemporary Jesus would have been born under the rubble.

The elderly ambassador's broken sentences asked a simple question of the world: Just how long must this suffering continue?

font change

Related Articles