A week at the ICJ: Israeli occupation and genocide

Amira Howeidy , Wednesday 28 Feb 2024

As the ICJ wraps up a week of hearings on Israel’s occupation of the Palestinian Territories, it now begins closed-door deliberations on South Africa’s case against Israel for allegedly violating the Genocide Convention.

A week at the ICJ:  Israeli occupation and genocide


A month after the International Court of Justice (ICJ) gave Israel a deadline to abide by a list of provisional measures to effectively stop the war on Gaza, Israel filed a report on its compliance to the world court on 26 February.

Its report to the ICJ, which has not been made public, was shared with the government of South Africa, which instituted proceedings against Israel at the court concerning alleged violations of the Genocide Convention late in December 2023.

South Africa has the right to respond to Israel’s report and to eventually take the matter to the UN Security Council.

Following two-day oral hearings in January from both sides, the 15-judge ICJ panel gave Israel a list of six provisional measures for it to take to prevent genocidal acts and to prevent and punish the direct and public incitement to genocide. It was also instructed to take immediate and effective steps to ensure the provision of humanitarian assistance to civilians in Gaza.

The ICJ ordered Israel to preserve evidence of genocide and to submit a report to the court within a month, or 26 February, regarding its compliance with the order.

Because the court’s rulings are binding, Israel, which is party to the Genocide Convention, is obliged to report on how it complied with these measures by the 26 February deadline.

Israel’s report submitted on Monday remains confidential, as is standard practice at the world court and was also implemented in The Gambia vs Myanmar ICJ proceedings in 2020.

According to Israeli newspaper the Times of Israel, Tel Aviv reported in its submission, which was drafted by both the Justice and Foreign Ministries, that it is implementing the orders and listed the steps it has taken to provide humanitarian aid to Gaza, as well as the measures being taken by senior legal and law-enforcement officials against those who may have made comments inciting genocide against the Palestinians in Gaza, including senior government officials.

Anticipating this, several UN and international aid and humanitarian and rights agencies issued reports this week documenting Israel’s failure to comply with any of the measures designed to prevent genocide.

Philippe Lazzarini, the commissioner-general of UNRWA, the UN relief agency for Palestinian refugees, said that the month of February had seen a 50 per cent reduction in humanitarian aid entering Gaza compared to January when the ICJ ruling was made.

“Aid was supposed to increase not decrease to address the huge needs of two million Palestinians in desperate living conditions,” he said.

Lazzarini said that the last time UNRWA was able to deliver food aid to northern Gaza was on 23 January, describing the situation as a “manmade disaster.”

“Since then, together with other UN agencies, we have warned against looming famine, appealed for regular humanitarian access, and stated that famine can be averted if more food convoys are allowed into northern Gaza on a regular basis,” which has not been the case, he explained.

According to a 26 February report by international rights group Human Rights Watch (HRW) documenting Israel’s failure to comply with the ICJ’s provisional measures during the past month, Tel Aviv has obstructed the provision of basic services and the entry of fuel and lifesaving aid to Gaza.

Furthermore, it has used the starvation of Palestinian civilians as a weapon of war.

“The Israeli government is starving Gaza’s 2.3 million Palestinians, putting them in even more peril than before the world court’s binding order,” said Omar Shakir, Israel and Palestine director at HRW.

Israel’s disregard for the ICJ is a challenge to the rules-based international order, he added. It is “time for sanctions to press Israel to comply.”

Since the ICJ order last month, the Israeli authorities have also destroyed the offices of at least two humanitarian organisations in Gaza, including UNRWA.

Also on Monday, Forensic Architecture (FA), a respected London-based search and art collective, released an evidence-based analysis of the visual material that was presented by the Israeli legal team at the ICJ hearing last month.

Using open-source research and satellite images and 3D modelling technology, FA said it had found “multiple instances of misrepresentation, mislabelling, and misleading descriptions” by Israel’s legal team before the court.

Israel’s report was submitted against the backdrop of a week-long series of oral hearings at the ICJ on the legality of Israel’s occupation of Palestinian Territory since 1967.

The ICJ has heard arguments from 49 states and three international organisations since 19 February following a 2022 request from the UN General Assembly to issue an advisory opinion on the legal consequences of 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.”

The date of these hearings long predates Israel’s war on Gaza since 7 October 2023, which has killed over 30,000 Palestinians, destroyed 70 per cent of the enclave’s civilian infrastructure, all the while preventing and obstructing the entry of aid and fuel to more than 2.2 million Palestinians.

The timing of the hearings, however, not only provided an opportunity for multiple legal arguments to be made on Israel’s illegal occupation and system of apartheid imposed on the Palestinians, but they also served to discredit Israel’s narrative on its current war on Gaza.

This hinges on the 7 October attack by Hamas, but the hearings highlighted Israel’s 57-year-old settler colonialism, even as far back as the Zionist project in the 19th century, as was underscored by Turkey.

During the week-long hearings at The Hague, dozens of states made incisive arguments on the illegality of Israel’s occupation and the violation of the prohibition on apartheid and racial discrimination, calling for an immediate end of the occupation.

Many, like China’s representative, also made the legal argument for the Palestinian right to armed struggle, reasoning that acts of violence committed against Israelis by Palestinians are not terrorism but rather legitimate resistance.

Ralph Wilde, the Arab League’s representative, articulated how the ongoing Israeli occupation constitutes aggression against the Palestinian people and is therefore directly connected to the genocide taking place in Gaza.

The Palestinian people, he said, have been denied their right to self-determination through “a century-long violent, colonial racist effort to establish a nation state exclusively for the Jewish people in the land of [former] Mandatory Palestine,” leading to what he called “racial domination and apartheid” against the Palestinians.

Israel did not take part in the hearings but sent a five-page memo objecting to the court’s involvement as “harmful” to achieving a negotiated settlement to the Israeli-Palestinian conflict and calling the questions posed to the court “prejudiced.”

Israeli ally the United States urged the court to limit any advisory opinion on the occupation and not order the unconditional withdrawal of Israeli forces from the Palestinian Territories it occupies.

The hearings provided a platform for top-tier international legal experts to challenge the de facto norms and dynamics of how UN Security Council veto rights work and their abuse by the five permanent members. Spain for example, invited the court to find that states should not prevent Security Council action in order to end serious breaches of peremptory norms in international law.

Israel occupied the West Bank, Gaza, and East Jerusalem in the 1967 War and has since built illegal settlements in the West Bank and steadily expanded them during the failed 20-year-old Oslo Process, rendering the promised Palestinian state impossible.

The UN refers to the territories as occupied by Israel and has demanded that Israeli forces withdraw, but its 1967 Resolution, Number 242, was vaguely worded and lacked binding mechanisms and did not specifically label the occupation as illegal.

The ICJ judges are expected to take roughly six months to issue their non-binding opinion on the occupation.

While the ICJ’s advisory opinion is non-binding, the condensed anti-Israeli occupation legal arguments by what amounted to 25 per cent of UN member states in six days demonstrated significant global impatience with the continued existence of the Israeli occupation and its “blatant impunity,” as communicated by Belize’s representative.

“What we’ve learned [from these hearings] is how isolated Israel is, legally and politically,” said Nimer Sultany, Reader in Public Law at SOAS University in London.

“Only a handful of states, primarily the US, defended the continued denial of the Palestinian right to self-determination, and another handful, primarily the UK, asked the court to decline from ruling in the case by reference to a non-existent bi-lateral political process,” Sultany wrote on X, previously Twitter.

* A version of this article appears in print in the 29 February, 2024 edition of Al-Ahram Weekly

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