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What role for international law in the latest escalation of the Israeli-Palestinian conflict?

Some context

International law is an important tool for regulating State relations and for clarifying rights and obligations at the international level. International law has been a very important reference for the Israeli-Palestinian conflict over decades. That enhanced role has been reflected in numerous resolutions by the UN Security Council and the General Assembly and UN reports. There is a lot of information on the history, timeline of the conflict and key moments, and documents of the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People. This blogpost tries to briefly analyze the use of international law by the Palestinian authority to pursue its main cause, namely the self-determination and economic development of the Palestinian peoples, by becoming a party to many human rights and humanitarian law treaties and by engaging with the International Court of Justice and with the International Criminal Court. The sections below explain briefly the change of strategy by Palestine from the early 2000s and the responses they have received from the West generally and from other countries.  

Consolidating Statehood and joining key international treaties

Several international efforts have been made to resolve the Israeli-Palestinian conflict, with the prominent 1993/1995 Oslo Accords (Oslo and Oslo II), albeit in the last decade the peace process has been defunct after the efforts of the Obama administration in 2013-2014 failed (see US Secretary of Department of State, John Kerry, speech of 28 December 2016). Several adverse developments have occurred in the last years, with more illegal settlements, recognition by the US administration of Jerusalem as the capital of Israel, and lack of sustained international efforts to ensure the exercise of the Palestinian peoples of their right to self-determination. Since the early 2000s, the State of Palestine has tried to make more use of international law to exercise the inherent rights of the Palestinian peoples. In 2012, Palestine became a UN non-member observer State (as State of Palestine). Becoming a party to many international treaties can be seen as a way for Palestine to bolstering its claim to Statehood. So far, Palestine has been recognized by 139 States. Palestine became a member to the main human rights treaties, including the ICCPR, ICESCR, CAT, CRC, CEDAW, and CRPD in 2014, subjecting itself to international human rights monitoring (see OHCHR); and, of the main IHL treaties (1949 Geneva Conventions and APs) in 2014-2015. As part of its efforts to join international adjudication mechanisms, it became a member State to the ICC Statute from 1 April 2015 and of the Permanent Court of Arbitration in late 2015 (through a vote of 54 in favor and 25 abstentions). Some countries, including those who routinely vote against UN General Assembly resolutions on the issue of self-determination of Palestine, while paying lip service to the two-State solution, have actively tried to hamper these efforts.

Legal proceedings before the International Court of Justice, 2003-2023

Recent cases concerning Palestine before the ICJ include two advisory opinions, one issued in July 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), one pending (Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem), and a pending contentious case (Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America)). Both advisory opinions were requested by the UN General Asembly. There has been broad participation by States and international organizations (IOs) in these advisory proceedings before the ICJ. Thus, for the July 2004 advisory opinion, the ICJ received written statements by 45 States and four IOs, including the EU. Oral submissions were presented by 12 States, Palestine and two IOs. The questions posed to the Court by the UN General Assembly (Resolution 77/247 of 30 December 2022) in the pending (second) advisory opinion are:

  • “(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, 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?
  • (b) How do the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?”

For this advisory opinion, during the first round of written pleadings (with a deadline of 25 July 2023) the Court received written submissions by 3 organizations (Arab League, OIC and AU) and 54 States. For the second round (with a deadline of 25 October 2023), it received replies by 2 organizations (Arab League and OIC) and 13 States. Note that the EU has not participated in these advisory proceedings. Oral pleadings are scheduled to start on 19 February 2024. It will be interesting to see what the participating States and IOs have argued in this second advisory opinion. While the documents have not become public yet, reporting appears to confirm that some States have presented more of the same tired arguments from almost 20 years ago (The Guardian, UK ‘seeking to block ICJ ruling’ on Israeli occupation of Palestine).

Given some of the legal issues remain controversial, getting some authoritative interpretation on them from the principal judicial organ of the UN is very important. The 2004 advisory opinion by the ICJ clarified among others (operative paragraph 163) that:

  • Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.
  • All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction;
  • All States parties to 1949 GC IV have in addition the obligation while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.
  • The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime.

The pending contentious case from September 2018 stems from the fact that on 6 December 2017, the then US President recognized Jerusalem as the capital of Israel and announced the relocation of the American Embassy in Israel from Tel Aviv to Jerusalem (Application instituting proceedings, September 2018). This contentious case does not seem to have progressed much.

The Palestine situation before the ICC, 2009-2023

Palestine has tried to engage the ICC in investigating international crimes happening in the occupied Palestinian territory. Its first referral of the situation to the ICC of 22 January 2009 cannot be found on the ICC’s website on the Palestine situation, imparting the wrong impression as if everything started in 2015. It took the then ICC Chief Prosecutor (OTP) until 3 April 2012, that is more than 3 years, to issue a two page document, rejecting the request of Palestine to investigate the commitment of crimes falling under the ICC jurisdiction since 1 July 2002. For a criticism of that OTP decision see here.

On 1 January 2015, Palestine lodged a declaration under article 12(3) of the ICCSt. accepting the jurisdiction of the ICC over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” On 2 January 2015, Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for Palestine on 1 April 2015. Only on 20 December 2019, that is about 4,5 years after becoming an ICC member State, the second ICC Prosecutor announced that after a THOROUGH INVESTIGATION the statutory criteria under the Rome Statute for the opening of an investigation had been met. Still, it took until 5 February 2021 (another year), for the Court to accept that Palestine was a member State to the ICC Statute and that the Court’s territorial jurisdiction extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem. On 3 March 2021, the ICC Prosecutor decided to open an investigation on crimes alleged to have been committed in Palestine since 13 June 2014. Basically, the Palestine situation has been pending before the Court from 2009-2023, for 15 years (note also the proprio motu powers of the OTP). Still no indictments, despite the fact that crimes committed in the oPt are the most documented by UN and other organizations, including the EU, at least for the last 15 years, starting in 2008 (OCHA, oPt, Data on casualties).

In the meanwhile, between 2 September 2020 and 2 April 2021, two senior ICC staff were sanctioned by the US (economic sanctions and visa restrictions), incl. for the Palestine situation, with the US administration retaining its strong disagreement about the OTP’s decisions re the situations in Afghanistan and Palestine. The third Chief Prosecutor of the International Criminal Court (ICC) finally expressed his concerns about the situation unfolding in Gaza in a press briefing from Cairo on 30 October and in an op-ed of 10 November 2023 (The Guardian, We are witnessing a pandemic of inhumanity: to halt the spread, we must cling to the law). In the meanwhile, on 17 November, five States referred the situation of Palestine to the ICC, namely South Africa, Bangladesh, Bolivia, Comoros, and Djibouti.

Let us make a quick comparison with the Ukraine situation pending before the ICC. Ukraine is not a State Party to the Rome Statute, but it has twice exercised its prerogatives to accept the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory, pursuant to article 12(3) of the ICCSt. It referred the situation under Art. 12(3) ICCSt. in April 2014 and September 2015 re alleged crimes committed throughout the territory of Ukraine from 20 February 2014 onwards. On 28 February 2022, the ICC Prosecutor announced he would seek authorization to open an investigation into the Situation in Ukraine, based on the Office’s earlier conclusions arising from its preliminary examination. Then, in March – April 2022, 43 States Parties submitted a joint referral of the situation in Ukraine to the ICC. On 2 March 2022, the Prosecutor announced that he had proceeded to open an investigation on crimes under the ICC jurisdiction by any person from 21 November 2013 onwards. On 17 March 2023, ICC Pre-Trial Chamber II issued warrants of arrest for two individuals in the context of the situation in Ukraine, the President of the Russian Federation, and Ms Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights.

Note that it took about one year for the ICC from the opening of the investigations to the issuing of arrest warrants in the Ukraine situation, against the Russian President, no less. It has been more than two and a half years since the OTP opened investigations into Palestine and no arrest warrants have been issued. The Palestine case is the longest modern time occupation since 1967, with 56 years and no end in sight, so if there were a case for States to line up to refer the Palestine situation to the ICC (also based on the duty to ensure respect for IHL under the 1949 Geneva Conventions) and to provide the Court with the means to do its work, there would barely be a better case to do so.

Concerns about the conflict and the humanitarian situation after the 7 October escalation

Many stakeholders have expressed concern about the dire situation in Gaza due to the near total blockade imposed by the Israeli government since at least 11 October 2023. The UN General Assembly adopted a resolution on 26 October 2023 (A/ES-10/L.25), given the Security Council was deadlocked. Finally, the UN Security Council adopted its resolution 2712 (2023) on 15 November. Many UN human rights experts (Human Rights Council Special Procedures) have expressed concern about serious human rights violations and the need to prevent genocide, latest on 16 November. Concern about the dire situation has been expressed regularly by the UN Secretary General, the UN High Commissioner for Human Rights, the Heads of several UN agencies, etc. Almost invariably, these important international officials and concerned State representatives have called for a humanitarian truce or a ceasefire, based on three inter-related imperatives, namely releasing all Israeli hostages without delay; allowing humanitarian assistance in Gaza, to save the civilian population from the impending humanitarian disaster; and, ending the Israeli occupation and ensuring the long overdue right of the Palestinian people to self-determination. Still, those calls have not managed to reduce the Israeli military disproportionate response. The extent of destruction of Gaza, especially of northern Gaza, as seen from some satellite images and information from various UN agencies (OCHA, oPt) is astounding. About 50% of the housing in Gaza is reported destroyed or damaged. About 80% are forcibly internally displaced. The number of Palestinians killed and injured by the Israeli army, or dying of diseases because of the near collapse of the medical system in Gaza continues to rise.

Peaceful resistance or armed resistance?

Palestine has used international law to strengthen its position, its claim to Statehood, and integrate into international adjudicatory mechanisms and international human rights monitoring mechanisms. These peaceful resistance efforts have met with strong resistance from a number of Western countries, especially the US (but also others), including on the pretense that they create difficulties for (non-existing) political negotiations. Some countries have exercised political and economic pressure to try to force the Palestinian authority to withdraw from these legal efforts. When the Palestinian authority tries to use international law, it is often bullied and subjected to political and financial sanctions; when the Palestinian people try to resist by force they are invariably called terrorists and killed indiscriminately. So, the question becomes, what are the Palestinian peoples to do to get their rights under international law, including human rights and humanitarian law? Palestine does not have a navy, air force, or nuclear weapons, like Israel, nor unconditional military and political support from the US, so international law is its strongest weapon, together with the solidarity it gets from many other States constituting the overwhelming majority of the organized international community.

Some necessary final words under this section. Calls by some State representatives to eradicate or neutralize Hamas seems to have gone unnoticed by many State politicians or international lawyers. Such open-ended calls are AGAINST international humanitarian law (IHL) and human rights. Under IHL there can be no denial of quarter – this is actually a war crime. So, whomever makes such calls, is going against this customary and treaty rule. Under international human rights law, such open-ended calls can be equated with calls to commit extraordinary killings, under pretense of such actions being lawful. Protections under IHL and human rights for individuals do not cease because a State or a few States use the term “terrorist” on a whole people or a part of it, whenever a part of it resorts to armed resistance. Such protections for the Palestinian population do not disappear even when Hamas fighters commit horrific crimes, as those committed on 7 October, that need to be fully investigated and those responsible held to account. To be sure, Hamas fighters are a legitimate target (with the additional obligation to observe proportionality and other targeting requirements), but since 7 October there seems to be an implication by certain State representatives that any Palestinian male of military age in Gaza is a Hamas terrorist that can be killed. I hope there is NO need to argue the GENOCIDAL nature of such a claim!!!

Concluding remarks

The latest escalation in Gaza lays bare the hypocrisy of the West that has been neglecting the legitimate rights of the Palestinian people for decades. No real political or economic sanctions have been imposed on Israel for continuing to commit war crimes and serious violations of human rights, all of which are well documented at least since 2008. Unlike the Ukrainian government, the Palestinian authority has not received sufficient political or economic support and moreover has been politically and financially sanctioned for trying to use international law and peaceful means of resistance to further its cause. Before anyone reading this jumps from their chair, my point is not less support for Ukraine, but an equal measure of support from the West for the Palestinian people that has been struggling to enjoy its inherent human rights for decades on end.

The fight of the Palestinian people for their liberation can benefit from international law, despite the ICC having been a rather “cold” house so far.  International judicial institutions like the ICJ and ICC can assist by clarifying various contentious legal points. They can ascertain matters of State responsibility, responsibility of main UN organs and third States, as well as matters of individual criminal responsibility. Moreover, international law can assist in setting the necessary parameters and guiding the diplomatic negotiations.

UN member States need to take their international legal obligations to the Palestinian people seriously and deliver on them, beyond the important but empty words of condemnation for the serious international crimes committed against Palestinian people year after year, or escalation after escalation. UN member States also need to help Israel to stop the ongoing cycle of perpetration of violations of international law against the Palestinian people. ICC member States need to help the ICC to fully investigate the latest crimes committed and to hold those responsible accountable. The ICC OTP needs to be ensured full and unhindered access to Gaza to conduct its work.

People around the world need to continue to show their support for Palestine through peaceful protests and donations. People around the world need to continue to request for the immediate release of all Israeli hostages of 7 October detained by Hamas and of all Palestinians detained without charge or trial by Israel (UN Human Rights Committee, Concluding observations on the fourth periodic report of Israel, UN Doc. CCPR/C/ISR/CO/4, 21 November 2014, para. 10(b), requesting an end the practice of administrative detention and the use of secret evidence in administrative detention proceedings against Palestinians). And to protest against antisemitism and Islamophobia.

            From my part, I appeal for an immediate release of all Israeli hostages and arbitrarily detained Palestinians and a ceasefire. The UN Security Council and the General Assembly, and key States, should bring an immediate end to the fighting, and take immediate steps with a view to achieving as soon as possible, based on international law, a negotiated solution to the establishment of a Palestinian State, existing side by side with Israel and its other neighbors, with peace and security for all in the region, as requested by the International Court of Justice in its advisory opinion of July 2004, almost 20 years ago!!

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