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Legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem (Request for Advisory Opinion)

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Oral submission of the Republic of The Gambia by Attorney General and Minister
of Justice, Dawda Jallow at International Court of Justice on 21 February 2024

Mister President, Honourable Members of the Court, it is an honour for me to appear before you to represent the Republic of The Gambia in these essential advisory opinion proceedings.

As was the case with The Gambia’s written statement, my oral submission today focuses on the second question presented to the Court regarding the legal status of the occupation and the legal consequences that arise therefrom.

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The preamble of the UN Charter reminds us of the fundamental goals of our international system: “to save succeeding generations from the scourge of war”; “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”; “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”; and “to promote social progress and better standards of life in larger freedom”.

Mister President, Members of the Court, notwithstanding the great resources invested by the international community at large, none of these goals has been achieved for the Palestinian people. None of them. And none of these goals can be achieved for the Palestinian people until Israel’s illegal occupation of the Palestinian territories is brought to an end.

My remarks today will focus on three main points. First, I will discuss the fact that a belligerent occupation can be illegal per se under certain circumstances. Second, I will set forth three reasons why Israel’s prolonged occupation of the Palestinian territories is illegal—a view shared by a substantial majority of the States participating in these proceedings. Third, I will conclude by emphasizing the essential role of this Court in declaring that Israel’s occupation is illegal and must be brought to an end immediately.

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Illegality of a belligerent occupation

As the Court knows quite well, the international system is based on certain fundamental principles of law, which include the peremptory norms of international law, or jus cogens norms. Adherence to these norms is not subject to derogation and compliance with them is owed erga omnes—to the international community as a whole. Some of the recognized jus cogens norms include the prohibition of aggression, the prohibition of genocide, the prohibition of apartheid, and the right to self-determination.

If a particular action of a State violates one or more jus cogens norms, that action is illegal under international law. Any State may invoke the responsibility of that State for such a violation and seek an immediate end to it.

This is, fundamentally, the situation regarding Israel’s occupation of the Palestinian territories. The international community, collectively over many years, has found Israel’s occupation of the Palestinian territories to be illegal, among other reasons, on account of its violation of multiple jus cogens norms. And collectively we have invoked Israel’s responsibility in that regard to end the occupation.

Mister President, at least one State in the course of these proceedings has suggested that an occupation under international law cannot be illegal under any circumstances. This argument posits that “an occupation exists, therefore it is legal”. The proposition is unfounded in international law and fails for several reasons.

First, this argument confuses the jus in bello and completely ignores the jus ad bellum. As the Court is well aware, international humanitarian law, or the jus in bello, is the body of law that governs the ways in which warfare can be conducted. It includes within it the law of occupation, a body of rules regulating the conduct of an occupying power.   It is, indeed, true that the obligations under the jus in bello as they relate to an occupation persist throughout the pendency of that occupation.

But separate from the jus in bello is the jus ad bellum, or the conditions under which States may resort to armed force. It is the jus ad bellum that addresses the legality of a use of force, including an occupation, which is maintained by the ongoing use of force.

Article 2(4) of the UN Charter prohibits the threat or use of force in any “manner inconsistent with the Purposes of the United Nations”. The only exceptions to this prohibition are the very narrow circumstances of force authorised by the UN Security Council or self-defense under Article 51 of the Charter. Any use of force outside of these narrow exceptions—i.e., any annexation or occupation of territory arising from an act of aggression or otherwise unlawful use of force—is illegal.  Any use of force that is unnecessary or disproportionate to the threat against which it is exercised is also illegal under the jus ad bellum.

Second, the proposition that “an occupation exists, therefore it is legal” also ignores the existence and implications of jus cogens norms going beyond the jus ad bellum. If an occupation inherently violates one or more jus cogens norms, then it is illegal as a whole, and the occupying power’s responsibility for that violation can be invoked in order to bring the violation to an end. The occupying power’s ongoing obligations under international humanitarian law do not, and cannot, preclude the wrongfulness of the jus cogens violations inherent in the occupation itself.

For example, the argument that occupations are inherently legal, if adopted, would directly conflict with and undermine the prohibition on the annexation of territory. Any State that wanted to de facto annex a territory could do so by indefinitely occupying that territory but not formally incorporating it within its borders. It is the same with the jus cogens norm of the right to self-determination. Simply put, flagrant violations of international law cannot be brushed aside by the fig leaf of occupation.

Finally, the thesis that “an occupation exists, therefore it is legal” also ignores the fact that the Court has determined occupations to be unlawful in the past. As discussed in The Gambia’s written statement, this was the case regarding South Africa’s occupation of Namibia without title and regarding Uganda’s occupation of the Congolese province of Ituri. The UN Security Council and the General Assembly have characterised occupations resulting from unlawful uses of force to be illegal as well. In sum, a belligerent occupation can be illegal per se if it violates the jus ad bellum or other jus cogens norms.

II.  Israel’s Prolonged Occupation of the Palestinian Territories is Illegal

Mister President, Members of the Court, The Gambia will highlight three reasons why Israel’s prolonged occupation of the Palestinian territories is illegal. All three of these reasons—the right to self-determination (A), the prohibition on apartheid (B), and the jus ad bellum (C)—reflect obligations rooted in jus cogens norms. This conclusion of illegality is shared by a substantial majority of the participants in these proceedings, many for the same reasons as The Gambia.

The right to self-determination

First, Israel’s occupation violates the right of the Palestinian people to self-determination and is therefore illegal. The erga omnes right to self-determination is “one of the essential principles of contemporary international law”, a jus cogens norm enshrined in the UN Charter.

The Court has before it extensive and uncontested fact-finding by multiple UN mandate holders, including the Independent International Commission of Inquiry on the Occupied Palestinian Territory and the many reports of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. These reports have been produced by independent UN mandate holders who engaged in extensive fact finding utilizing multiple sources of evidence. The Court should accept these reports as conclusive and convincing evidence of Israel’s long-standing, ongoing, and indefinite infringement on the right to self-determination for the Palestinian people.

Indeed, there is no end in sight to Israel’s occupation. Already extending over 56 years, Israel’s current leadership boasts with pride its long-standing efforts to prevent the creation of an independent Palestinian State.

 As reported by the UN Special Rapporteur, Israel’s “occupation violates Palestinians’ ability to organise themselves as a people, free from alien domination and control”.

No derogation is permitted from respecting the right of the Palestinian people to self-determination. There is no escaping the conclusion that Israel’s occupation is illegal for violating the right of the Palestinian people to self-determination and that it must expeditiously be brought to an end.

The prohibition on Apartheid

Second, Israel’s ongoing occupation of the Palestinian territories is also illegal because it amounts to a regime of apartheid, the prohibition of which is a peremptory norm of international law. This Court has described apartheid as a “flagrant violation of the purposes and principles of the Charter”.

Once again, the Court has before it extensive, credible, and independent fact-finding demonstrating conclusively that Israel has imposed an apartheid reality in the Palestinian territories. This is clear in the reporting of the UN Special Rapporteur, who concluded that “Israel has imposed upon Palestine an apartheid reality in a post-apartheid world.”  This is also reflected in the findings of the Committee on the Elimination of Racial Discrimination.

Senior international leaders, like Ban Ki-moon and Desmond Tutu, and former Israeli officials, including a former Attorney General, a former director of Israel’s Intelligence Service, Shin Bet, and former Ambassadors of Israel to South Africa, have also concluded that Israel’s occupation constitutes a regime of apartheid.

The most credible non-governmental human rights organizations that report on the situation in the Occupied Palestinian Territory have also concluded that the occupation is, in fact and in law, an apartheid regime.

A sober review of the uncontroverted evidence convincingly shows that the occupation is a regime of apartheid. As such, Israel’s occupation of the Palestinian territories is illegal and must urgently be brought to an end.

The jus ad bellum

Third, Israel’s 56-year occupation of the Palestinian Territory violates the laws on the use of force—jus ad bellum—and is illegal for that reason as well.

As discussed earlier, the prohibition on the threat or use of force is a jus cogens norm. Even when resort to force is justified by self-defense in response to an armed attack, the particular force used may still be illegal if it is unnecessary or disproportionate to the threat against which it is exercised.

Israel launched the June 1967 war that led to its occupation of the Palestinian Territory.  After its surprise attack initiating the war, Israel occupied all remaining Palestinian territory in the West Bank, including East Jerusalem, the Gaza Strip, as well as Syria’s Golan Heights and Egypt’s Sinai Peninsula, “effectively tripling the size of territory under [its] control”.  Since this use of force was not taken in response to an armed attack and was not necessary or proportionate even if it had been, the occupation was a flagrant violation of the laws on the use of force from the outset.

Furthermore, even if the occupation of the Palestinian territories were lawful at one time, its continuation for more than five decades means that it could not possibly still be lawful today. First, the use of force in self-defense is only justified “within the strict confines” laid down in Article 51 of the Charter, and “does not allow the use of force by a State to protect perceived security interests beyond those parameters”.  As such, “essentially preventative” uses of force are beyond the scope of Article 51.

Second, as clarified in the Wall Advisory Opinion, Article 51 does not apply to situations involving conduct taken in response to purported threats emanating from within occupied territory. Israel therefore cannot justify its occupation as a response to alleged threats emanating from within the Occupied Palestinian Territory itself.

Israel’s ongoing occupation of the Palestinian territories also violates the jus ad bellum because its maintenance is unnecessary and disproportionate. It is simply not possible that it has been necessary for Israel to maintain its occupation since 1967—for over 56 years. Moreover, Israel also cannot possibly justify its settlements upon and annexation of occupied territory as a necessary response to any perceived threat—not to mention the myriad of rights violations that are intrinsic to the occupation. By settling and annexing occupied territory, Israel has acted unnecessarily in using force.

Israel’s prolonged occupation is also wholly disproportionate to any legitimate aim. Israel’s occupation of the entirety of the Palestinian territories “long after the period in which any presumed armed attack … could reasonably be contemplated”  makes it even more disproportionate now. And the manner in which the occupation has been conducted—including the establishment of an apartheid regime—renders the occupation disproportionate as well.

In sum, Israel’s decades-long occupation violates the jus ad bellum and is therefore illegal.

The Court should declare that Israel’s occupation is illegal and must be brought to an end

Mister President, Members of the Court, in the almost twenty years since the Wall Advisory Opinion, Israel has only deepened the occupation. Israel has annexed more territory and expanded its illegal settlements. It has further fragmented the Palestinian Territory. In Gaza, Israel has decimated the territory and the Palestinian population there. In the territories overall, Israel has entrenched an apartheid regime. The Palestinian people continue to be deprived of their right to self-determination, indefinitely. And all the while, there is no justification under international law for Israel’s continued use of force to maintain the occupation—if there ever was one to begin with.

Mister President, Members of the Court, I remind us of the foundational goals of the United Nations that I recited at the beginning of my remarks. If we are to ever achieve any of those goals in regard to the Palestinian people, then this Court must play its role in robustly answering the questions posed by the General Assembly.

As to the second question posed, The Gambia submits that the Court should find that Israel’s occupation of the Palestinian territories is illegal per se for all of the reasons discussed. And The Gambia further submits that the Court should find that Israel, all other States, and the United Nations are under an obligation to bring about an end to Israel’s occupation immediately, or at least as rapidly as possible.

Thank you, Mister President, Members of the Court, for your kind attention.

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