The ICJ case on Israel’s occupation could vindicate Palestinian rights, says legal expert

Emotions ran high yesterday as the International Court of Justice (ICJ) started its hearing on Israel’s occupation of Palestinian territory, with Palestine’s UN envoy Riyad Mansour moved to tears as he delivered his final remarks. Mansour spoke about a future where the children of Palestine would be treated as children and not as a “demographic fit”; when the human rights of Palestinians would not be “diminished” because of their ethnicity and identity; and where two states would live side by side, in peace.

Over six days, the world court is hearing oral arguments from 52 countries and three international organisations, following a UN General Assembly request filed in 2022 for an advisory opinion on the legal consequences of Israeli practices in the occupied Palestinian territory.

The hearing comes as Israel continues its devastating war on the Gaza Strip, where it has now killed nearly 30,000 Palestinians and laid waste to most of the besieged enclave.

The UN’s top court is already deliberating on a case filed by South Africa accusing Israel of genocide in Gaza, having ordered provisional measures and finding a plausible risk of genocide in its interim ruling in January.

All of the speakers during the hearing will present their views on why they support or oppose the measures that Israel has enforced in the occupied Palestinian territory. Israel itself has opted out of the hearing and instead submitted a written argument.

A court ruling is likely to take months, but could be possible somewhere between April and June, suggested Victor Kattan, assistant professor of international law at the University of Nottingham in the UK. Any decision in favour of the Palestinians will be “a vindication of their rights by the principal judicial organ of the United Nations,” he told Anadolu.

If the court comes out and holds Israel responsible for the “prohibition of the crime of apartheid, for example,” that could be quite significant, explained Kattan, because the UN has special organs and institutions to deal with combating apartheid, which have not been used for almost four decades. “They could be used to coordinate policies aimed at putting pressure on Israel to end its occupation in discriminatory policies against the Palestinian people.”

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Kattan has written extensively on the Israel-Palestine issue, and said that the ICJ has essentially been asked to defend international law and to make it relevant again. “In a way, it kind of reinforces the importance and value of this approach to the International Court of Justice.”

The hearings, Kattan explained, will deal with two issues, the first being to look at the ongoing violations that Israel has committed by prolonging its occupation, denial of self-determination, major demographic changes, human rights violations and racial discrimination, as well as apartheid. The second is the question about the consequences for states arising from these violations of international law.

The legal expert noted that the participating countries had submitted their arguments well before the 7 October Hamas attack, so it would be interesting to see how Israel’s allies shape their arguments in light of its deadly actions in Gaza. “The argument that Israel or these allies would be putting in front of these proceedings will be that this does not come under the (court’s) jurisdiction or that this is not admissible. They may say this is a political issue that needs to be resolved in negotiations.”

According to Kattan, “They’re going to simply ask the court not to consider the request at all on the grounds of jurisdiction and admissibility. However, in my view, it’s a very weak argument given the special role of the court in matters concerning decolonisation and the like.” They may also say that this is a bilateral process and that peace can only come — statehood can only come — when the Palestinians reach an agreement.

“That may be their argument, but UK Foreign Secretary David Cameron just came out and said that, actually, a Palestinian state doesn’t have to wait until the end of negotiations,” Kattan pointed out. “So, we may already be seeing a shift even in the stance of Israel’s friends in that regard, and this would explain why [Prime Minister Benjamin] Netanyahu is coming out with such belligerent statements and saying that he’ll never accept a Palestinian state.”

Kattan warned that the ICJ proceedings have enough significance that Israel might do something to divert the world’s attention away from them.

“That could, for example, be deciding to attack Rafah,” a reference to Israel’s planned ground assault on the southern Gaza city currently sheltering over 1.4 million displaced Palestinians, an attack which has been condemned around the world.

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Once the oral arguments conclude on 26 February, the court will start its deliberations and likely give an opinion in a few months.

“The judges will have heard the oral submissions, and they have access to written statements and comments on written statements since last year, which they have undoubtedly read, which may have also informed them, by the way, on the genocide case as well. The key points to look out for are how far does the court accept some of the arguments that Palestine has made, what kind of majorities or dissenting opinions emerge, and what are the reasons for the dissent,” said Kattan.

“If the court does give a good opinion, a majority opinion, that the occupation, for example, is illegal or that Israel is committing the crime of apartheid, for example, and that states have an obligation to… refrain from trading in arms [with Israel] that will then be referred back to the UN General Assembly. The General Assembly will take note of it and then it’ll have to pass a resolution.”

The legal expert pointed out that these resolutions are not formally binding, and if it gets to the UN Security Council, we can expect the US to veto any attempts to enforce international law against Israel. “However, it is possible that some states may take matters into their own hands if the opinion is drafted well. If it’s got a large majority, it would give some states the opportunity to enforce international law themselves.” he said.

These states could contend that the court has said they should not be trading with Israel or with entities that are operating in the occupied territories, Kattan suggested.

“It might give a reason for those states to cut diplomatic relations or to take measures to enforce international law. So, even if it doesn’t come from the UN Security Council level, it’s possible for states to implement sanctions unilaterally. Whether they do so or not, we have to wait and see.”

Regarding the participation of countries in favour of Palestine, Kattan said that it is “testimony to the hard work of Palestinian diplomats, who undoubtedly would have been lobbying their friends to support them in this case.” The case also shows that Israel is “more isolated” than before 7 October, particularly in the Global South.

“Perhaps it is also becoming more isolated with states from areas it considers its friends, such as in Europe,” he added. Initially there was massive sympathy for Israel after the Hamas attacks, continued Kattan, but that has “now dissipated because of the Israeli military operations and attacks in Gaza.”

He asserted that Israel’s war on Gaza has revived the issue of Palestinian statehood and brought it back onto the global agenda. “It has undoubtedly galvanised the tension and reminded everyone that this conflict, although it’s very old, is not finished. It is still there, festering.”

While most states recognise Palestine, there are some like the UK that have already made a legal determination that Palestine is a state, but have withheld formal recognition for political reasons.

“There were some states, for instance, that voted in favour of the UN General Assembly resolution according Palestine observer status and statehood all the way back in 2012, but withheld from upgrading their relations,” said Kattan. “And now we can see that for some Western countries the idea of recognising Palestine is back on the agenda in connection with debates on how to end the conflict in Gaza, how to give the Palestinian people a political horizon, and how to ensure that the conflict that we are seeing never happens again.”

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