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Solutions Summit in the SDG Media Zone at the United Nations, Wednesday, Sept. 20, 2017. (Photo/Stuart Ramson for the United Nations Foundation)
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Thanks to the author.
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Credit: Stephen Yang / The Solutions Project
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Solutions Summit in the SDG Media Zone at the United Nations, Thursday, Sept. 21, 2017. (Photo/Stuart Ramson for the United Nations Foundation)
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Unstereotype Alliance at AD Week Panel Discussion
Jason Klein, Head of Human Truths, Google;
Madeline Di Nonno, CEO the Geena Davis Institute;
**Dan Seymour, Director UN Women’s Strategic Partnerships Division;**
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Moderator: Jess Weiner, CEO Talk to Jess and Cultural Changemaker
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Photo: UN Women/Amanda Voisard
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Solutions business, le 6 mars 2008. Charleroi - Belgique
Solutions business, le 6 mars 2008. Charleroi - Belgique
Environmental Science, Geology and Journalism collaborated to produce climate solutions news pieces.
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Participants at the Solutions Summit in Durban, South Africa, 2017. Copyright by World Economic Forum / Benedikt von Loebell
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-Friday 23 February 2024: Even more countries speaking on the legality of Israel’s occupation of Palestine in the International Court of Justice in Den Haag today. Namibia, Norway, Oman, Pakistan, Indonesia, Qatar, United Kingdom, Slovenia, Sudan, Switzerland, Syria and Tunisia.
I have to say, the UK’s presentation was just abhorrent.
Instead of focusing on that, today I would like to highlight and remark on the supreme eloquence of Pakistan and also the strong and morally impressive presentation by Namibia.
I also want to share a personal note. If you did not see yesterday’s presentations in Den Haag, then you should see - and feel - the most emotional address to the court by Ali Ahmad Ebraheem S. Al-Dafiri of Kuwait.
Yesterday, I too held a lecture but for international students; touching on the german occupation of Norway. As I was lecturing, even I could feel it when I was mentioning that during the 5 years of nazi occupion that we had to endure, Norway suffered ’only’ 12.000 war-related deaths - 600 of whom were jews. Compare that to the 57 years Palestine has endured Israeli occupation and the 30.000 Palestinians that Israel has killed in Gaza in the last 4 months alone.
I was really struggling to keep my composure at this point.
International Court of Justice: Day 5 hearing on the legal consequences of Israel's occupation of Palestinian territories (publ. 23 February 2024) [Video]
International Court of Justice: Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem [Transcripts and Documents]
Mr AL-DAFIRI: [KUWAIT] (22 February 2024)
I. INTRODUCTORY REMARKS
1. Mr President, honourable Members of the Court, it is a great honour to appear before you as the Agent of the State of Kuwait in these proceedings. Kuwait deeply appreciates the extraordinary efforts taken by the Court to allow this hearing to proceed smoothly, in light of the great number of participants. The current advisory proceedings are of extreme importance to the Palestinian people, Kuwait, the international legal order and the international community as a whole.
2. Kuwait has always advocated that peace fosters the observance of law and vice versa. Adherence to the UnitedNations Charter is an indispensable prerequisite for the definitive establishment of international peace. Indeed, peaceful relations are founded on accepted rules and as such, peaceful relations among States are based on the provisions of the United Nations Charter. These include, notably, the principle of non-use of force and the peaceful settlement of disputes. These rules apply to all States. Respect for these fundamental rules contributes to the consolidation of international peace.
3. Regrettably, the above-mentioned foundational rules have not been upheld in the case of Palestine. The conflict between Palestine and Israel, hereafter referred to as the “occupying Power”, is an illegal occupation conflict, involving on one side an occupying Power equipped with all military means, and on the other side an occupied nation without defensive capabilities, facing daily expulsion, human rights violations and all sufferings associated with any occupation situation.
4. Over the past decades, the situation between the Palestinians and the occupying Power has been extremely tense, resulting in serious human rights law and humanitarian law violations committed by the latter. Various intergovernmental and non-governmental organizations have documented these violations by publishing comprehensive reports. This climate of violence compromises any possibility of reasonably discussing the issues at stake. This is further exacerbated by the recent developments in Gaza. The occupying Power has waged an illegitimate war on the Palestinians in Gaza characterized by numerous international law violations. The ongoing flagrant violations have been highlighted in a series of statements issued, amongst others, by the United Nations Secretary-General, the United Nations High Commissioner for Human Rights and the Special Procedures of the United Nations Human Rights Council.
5. The unprecedented violence in Gaza is a result of 57 years of illegal occupation of the Palestinian territories and it must stop.
The late Emir of the State of Kuwait, His Highness Sheikh Sabah Al-Ahmad Al-Jaber Al-Sabah (1929-2020) summarized this situation in 2018 by stating:
“We ask the whole world, why the Palestinian people plight continues? Why do we ignore and do not implement Security Council resolutions? Why is the international community incapable of resolving this cause? Why does the victim continue to be portrayed as the killer according to Israel’s norms? Why does Israel always escape punishment? Why have all these souls been lost amid absence of the world conscience?”
6. Mr President, distinguished Members of the Court, it is in this context that Kuwait appears for the first time before the Court, following the adoption by the United Nations General Assembly of resolution 77/247, requesting the Court to deliver an advisory opinion on two legal questions. The first question asks the Court to evaluate the legality of the occupying Power’s specific policies and actions within its occupation of the Palestinian territories, while seeking the Court’s determination of the corresponding legal ramifications. The second question addresses a core issue: has the occupation become illegal? Kuwait will demonstrate the illegality of this occupation, underscoring the necessity of its cessation.
7. Mr President, honourable Members of the Court, my distinguished colleagues will now address these issues in greater depth.
[…]
The PRESIDENT: I shall now give the floor to the representative of Namibia, Honourable Ms Yvonne Dausab. You have the floor, Madam.
Ms DAUSAB: [NAMIBIA] (23 February 2024)
1. Mr President, Madam Vice-President, Members of the Court, it is a special honour to appear before you today on behalf of the Republic of Namibia.
2. With your kind indulgence, I wish to first pay tribute to our late president Dr Hage Geingob (1941-2024), who passed away on 4 February 2024 and will be laid to rest this weekend. President Geingob was a key figure in our struggle for independence. He was a committed anti-apartheid and anti-colonial freedom fighter, who stood up against injustice and oppression wherever it occurred. It is therefore fitting that, in one of his last public statements, he said that “[n]o peace-loving human being can ignore the carnage . . . waged against Palestinians in Gaza”.
3. President Geingob was the representative of the South West Africa People’s Organisation (SWAPO) and its petitioner to the United Nations from 1964 to 1971. It was during this period that the General Assembly condemned and declared “the policies of apartheid and racial discrimination” as a “crime against humanity”. Consequently, the General Assembly also appropriately terminated the Mandate in South West Africa.
4. Mr President, Members of the Court, I stand before you as a representative of a country where Germany brutally carried out the first genocide of the twentieth century against the Herero and the Nama peoples. A country that has known only too well the pain and suffering of occupation, colonialism, systematic discrimination, apartheid, and their entrenched consequences. It is because of this history that Namibia considers it a moral duty and sacred responsibility to appear before this Court on the question of the indefensible occupation of Palestine by Israel.
5. The parallels between Namibia and Palestine are striking and painful. Both were integral parts of the mandate system established after World War I. And in both cases, the so-called “sacred trust of civilisation”, which aimed to guide these nations towards self-determination and independence, was utterly betrayed. Instead of achieving self-government, both Namibians and Palestinians suffered the loss of human dignity, life, liberty and the outright theft of their land and natural resources. Hundreds of thousands of their people were violently expelled from their homes or forced into exile, joining the ranks of the world’s refugees.
6. Upon the dissolution of the League of Nations in 1946, the white minority South African régime refused to place Namibia (then South West Africa) under the United Nations Trusteeship and sought to illegally annex our territory as a fifth province, implementing racist homeland policies and apartheid laws targeting Black Africans.
7. Today, Palestinians have had to endure the seizure of their land and property, illegal settlements, unlawful killings, forced displacement, drastic movement restrictions, the denial of refugees’ right to return and of equal nationality and citizenship. The lived reality of the people of Palestine evokes painful memories for many Namibians of my generation. Namibians still experience the entrenched and structural impact of inequality, as a direct consequence of colonialism and the prolonged unlawful occupation.
8. Mr President, Members of the Court, this Court’s four Advisory Opinions on South West Africa played a vital role in our liberation struggle. In its 1971 Opinion, the Court confirmed the right of self-determination as a legal imperative with decisive consequences for States, paving the way for our independence 19 years later in 1990.
9. It is because of Namibia’s experience with apartheid and its long fight for self-determination that we cannot look the other way in the face of the brutal atrocities committed against the Palestinian people.
10. Mr President, Members of the Court, we ask you not to look away, either. Rather, we appeal to you: once again, end a historic and ongoing injustice by upholding the fundamental rights of a dispossessed people who have endured 57 years of a suffocating occupation. Today, Palestinians are enduring collective punishment in the besieged Gaza Strip, with civilians being killed in continuous and indiscriminate bombardments at a scale that is unprecedented in recent history. This state of affairs — this “hell on earth” — represents a stain on the collective conscience of the world.
11. Civilized nations cannot, and must not, accept images of children covered in blood with gaping wounds; of men and women crying in despair because of the helplessness they feel.
12. However, in the midst of the ongoing tragedy, I wish to say the following to the people of Palestine: this advisory opinion is an important moment in your long fight for independence. And I leave you with the words of our Founding President and Father of the Namibian Nation, Dr Sam Nujoma (b. 1929): “a people united, striving to achieve a common good for all members of society will always emerge victorious.”
13. Mr President, Members of the Court, I thank you, and I now respectfully ask that Professor Phoebe Okowa be called to address the legal questions before the Court.
The PRESIDENT: I thank Ms Dausab. I now give the floor to Professor Phoebe Okowa. You have the floor, Professor.
Ms OKOWA: [NAMIBIA] (23 February 2024)
I. INTRODUCTION
1. Mr President, Madam Vice-President, Members of the Court, it is a great honour for me to appear before you in these proceedings, and a special privilege to do so on behalf of the Republic of Namibia. Our presentation is in three parts.
2. First, I will make two general observations on why the Court should answer the request in its entirety, and why Israel’s occupation is illegal.
3. Then, I will focus on Israel’s policies and practices in the Occupied Palestinian Territory that grossly violate its obligations under international law, specifically the prohibition of apartheid and racial discrimination, and the principle of self-determination.
4. Finally, I will address the legal consequences that arise for Israel, for third States and for the United Nations on account of these violations.
A. The Court can and should answer the request in its entirety
5. As a threshold matter, Namibia reiterates, as do the overwhelming majority of States in these proceedings, that the Court has jurisdiction to render the requested advisory opinion, and that there are no compelling reasons for the Court to decline the request.
B. Israel’s occupation is illegal under international law
6. Namibia notes that there is also wide consensus among the participants on “the legal status of the occupation”. Namibia makes only four brief observations.
7. First, in so far as the law of occupation envisages any belligerent occupation as a temporary measure, immediately following military operations, Israel’s prolonged— or permanent— occupation breaches the law of occupation. It is a de facto annexation in all but name.
8. Second, Israel’s occupation, in and of itself, is unlawful under general international law. This is because it violates the Charter of the United Nations and peremptory norms; specifically, the prohibition on territorial acquisitions through illegal use of force, the principle of self-determination, and the prohibition of apartheid.
10. Finally, the continuation of the illegal occupation does not absolve Israel of its obligations and responsibilities under international law. This is consistent with your own conclusions in the Namibia Advisory Opinion that “[p]hysical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States”.
II. ISRAEL’S POLICIES AND PRACTICES IN THE OCCUPIED PALESTINIAN TERRITORY VIOLATE THE PROHIBITION OF APARTHEID AND THE PRINCIPLE OF SELF-DETERMINATION
A. Israel is bound by the prohibition of apartheid under international law
11. In both its written and oral submissions, Namibia focuses on the prohibition of apartheid and of racial discrimination. This is, in part, on account of Namibia’s history, as one of the few countries that were subjected to this egregious form of systematic and institutionalized racial discrimination.
12. We also do so on account of the fundamental importance of the Court’s 1971 Namibia Opinion, where this Court declared that the policies of apartheid “constitute a denial of fundamental human rights” and are “a flagrant violation of the purposes and principles of the [United Nations] Charter”.
13. But above all, we do this because, notwithstanding the egregious nature of apartheid — as a State delict, as a violation of a peremptory norm and as a crime — it has received virtually no clarification beyond the specific circumstances of southern Africa. An advisory opinion on threshold questions of apartheid will therefore assist the General Assembly in respect of its own action, in identifying the key elements of the illegality and in formulating appropriate responses to Israel’s discriminatory practices in the Occupied Palestinian Territory.
14. Specifically, we invite the Court to clarify three aspects of the obligation.
15. First, we respectfully ask the Court to make it clear that the prohibition of apartheid is not limited to southern Africa in the last century. It extends to Israel’s policies in the Occupied Palestinian Territory today. Article 3 of CERD places all States parties, including Israel, under an obligation to prevent, prohibit and eradicate apartheid “in territories under their jurisdiction”. This is also the conclusion of the CERD Committee. The 1998 Rome Statute of the International Criminal Court, negotiated after the end of apartheid in South Africa, also recognized apartheid as a crime against humanity without temporal or geographical restriction16.
16. Second, the Court should also confirm that the prohibition of apartheid binds all States as a peremptory norm. In your decision in the case under CERD brought by Qatar against United Arab Emirates, you acknowledged the “universal character [of CERD] is confirmed by the fact that 182 States are parties to it”. The International Law Commission and its Special Rapporteur on jus cogens (as Judge Tladi then was) have also expressly recognized the peremptory character of the prohibition of apartheid.
17. Finally, Namibia invites the Court to clarify the definition of apartheid. Namibia aligns itself with other participants that the definition in Article 2 of the Apartheid Convention incorporates the three key elements of the delict under international law.
18. First, the State must engage in one or more “inhuman acts”. Crucially, these take the form of violations of fundamental human rights within an institutionalized framework of systematic oppression and domination.
19. Second, these inhuman acts must be directed against a “racial group” or its members.
20. Finally, the State must commit these inhuman acts “for the purpose of establishing and maintaining domination” by one racial group over the other and “systematically oppressing them”.
B. Israel’s policies and practices constitute apartheid
21. Other participants have already made extensive statements on the discriminatory and inhuman acts carried out against the Palestinians as a racial group. These policies and practices are too many to enumerate in the time available. They include laws that discriminate in matters of citizenship, ownership and transfer of property, and freedom of movement. The systematic and excessive use of force against Palestinian civilians, the arbitrary killings and mass incarceration of Palestinians, including children; the illegal settlements; the discriminatory residency regulations; and, crucially, the denial of a Palestinian identity by refusing to recognize them as a people with a right to determine their own political destiny and to pursue social, economic and cultural development.
22. Namibia’s submission will focus on the final requirement: the purpose of establishing, maintaining domination and systematic oppression.
First, the term “domination” signifies a pervasive, all-encompassing, serious form of control over a group.
Second, “oppression” implies prolonged cruelty, reflecting a sustained violation of human rights.
Third, “systematic” implies the organized nature of violent acts and the improbability of their random occurrence.
23. Namibia shares the view of other participants that Israel’s policies and practices meet the evidentiary standard for establishing the State delict of apartheid. The Israeli Government’s openly articulated aim is to ensure Jewish Israeli control of all facets of Palestinian life, as evidenced by legislation affirming Israel as the nation State of the Jewish people, with unique self-determination rights reserved for Jewish individuals only.
24. It is clear from all the available evidence that these discriminatory practices are not accidental or fortuitous but are designed for the specific purpose of privileging Jewish Israelis over Palestinians. The fact that the practices in question may have other collateral objectives, such as maintaining security, is irrelevant. It will suffice if the primary motive is discriminatory, even if it also serves ancillary purposes.
C. Israel’s apartheid practices violate the Palestinian people’s right to self-determination
25. It follows in Namibia’s submission that Israel’s policies and practices are inconsistent with the prohibition of apartheid as a State delict under international law. Furthermore, these discriminatory practices, in the context of prolonged occupation of the Palestinian territories, violate the right of the Palestinian people to self-determination.
26. As other Participants have highlighted, these discriminatory policies and practices are directed at fragmenting the Palestinian people. These elaborate systems of administrative controls undermine group cohesiveness by dividing the Palestinian people into a number of administrative “domains” or groups, with varying degrees of rights. This strategic fragmentation of the Occupied Palestinian Territory into Bantustans makes Palestinian life burdensome and in many cases unbearable, forcing them to leave their homes.
27. Perhaps the epitome of discriminatory laws negating the Palestinian right of self-determination is the 2018 Basic Law, passed with constitutional status, which boldly declares that Israel is the nation of the Jewish people and that Jewish settlement is a national value.
III. LEGAL CONSEQUENCES OF ISRAEL’S VIOLATIONS OF ITS OBLIGATIONS UNDER INTERNATIONAL LAW
28. I will now turn to the final part of my submission. I will first examine the legal consequences of Israel’s violations, irrespective of the status of the occupation. Second, I will examine the legal consequences arising out of the illegal status of the occupation.
A. Legal consequences of Israel’s violations of its obligations under international law
29. First, Israel must bear consequences for its violations. This is the most elementary requirement of the law on State responsibility. As others in these proceedings have highlighted, this includes the obligations of cessation and the duty to make reparation for more than five decades of harms inflicted on the Palestinian people.
30. The Government of Israel has a legal duty to dismantle all the vestiges of systematic racial discrimination and oppression that permeates all aspects of Palestinian life in the occupied territories.
31. As the State of Palestine itself said on Monday, Israel must bring to an end the annexation of Palestinian land, dismantle existing settlements and recognize the right of the Palestinian people to self-determination in a viable State of their own.
32. Second, States are under an obligation not to recognize Israel’s breaches of peremptory norms of general international law vis-à-vis the Palestinian people. At the same time, the obligation of non-recognition is matched by a parallel and positive duty of recognition — of the Palestinian people’s right to self-determination realized through a viable and independent State of Palestine.
33. Here we ask the Court to pay particular attention to the historical context of these proceedings. Admission to the United Nations, unlike the League of Nations, was not automatic. It was conditioned on the State accepting to uphold the values and principles contained in the Charter, including self-determination. The admission of Israel was no exception.
34. In the Wall Opinion, you observed that when Israel proclaimed its independence, it did so “on the strength of” the partition plan resolution of the General Assembly. As is well known, that plan envisaged two States, one Arab and one Jewish. The Israeli Declaration of Independence makes this plain, by recognizing “the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State”. If that logic applied to the self-determination and statehood of the Jewish people, it must by the same token also apply to the self-determination and statehood of the Palestinian people.
35. We further ask the Court to consider whether there may be circumstances where political discretion in matters of recognition gives way to a positive duty of recognition, especially when it is necessary to safeguard a peremptory norm. And here, Namibia aligns itself with Jordan’s Written Submission that all States are also under an obligation to recognize the right of the Palestinian people to self-determination, including by exercising that right within a viable and independent State of Palestine.
B. Legal consequences of Israel’s illegal occupation
36. Since Israel’s policies and practices violate peremptory norms of international law, the occupation itself is unlawful. This entails consequences for Israel, for third States and, for the United Nations.
37. In the Namibia Opinion, you already set out the legal consequences of unlawful occupation. There, you said that, once the Court is faced with an illegal situation, “it would be failing in the discharge of its judicial functions if it did not declare that there is an obligation, especially upon Members of the United Nations, to bring that situation to an end.”
38. In that Opinion, you recognized the clear obligation on South Africa to put an end to the illegal occupation and withdraw its administration from the territory. The same consequences must of necessity attach to the illegal occupation by Israel of the Palestinian territories.
39. Cessation cannot be contingent on external factors such as the successful outcome of negotiations, as pointed out by some participants in these proceedings. A withdrawal contingent on the outcome of political negotiations effectively gives Israel a veto over the future of the Palestinian people.
40. Namibia invites the Court to set a strict time-limit within which Israel must be asked by the General Assembly to bring the occupation to an end, without conditions. Failure to set a strict time-limit has the perverse effect of being treated as acquiescence in the present occupation, and permission for it to continue indefinitely.
41. Of course, Israel has defied this Court and ultimatums issued by the United Nations organs many times. But it is precisely for this kind of egregious violations of peremptory norms that a régime of countermeasures was contemplated in the now widely accepted International Law Commission’s draft Articles on State Responsibility. Equality before the law is a cardinal principle of the Charter of the United Nations. No State — not Israel — should be exempt from the comprehensive régime of sanctions.
42. Moreover, Namibia reaffirms the position held by the majority of participants that all States are under an obligation not to recognize, assist, support, or contribute to the continuation of the unlawful occupation. This is also in line with your own settled jurisprudence.
43. In the Wall Opinion, you confirmed that the obligations of third States include the “obligation not to render aid or assistance in maintaining the [illegal] situation”. That all States must refrain from all forms of assistance, including transfer of arms, and political support that de facto perpetuates the occupation.
44. In Namibia’s view, this means, in particular, that all States are under an obligation to ensure that companies under their jurisdiction or control do not trade in Israeli goods or with Israeli companies originating from or linked to Israel’s illegal occupation.
45. Mr President, Members of the Court, I thank you for your kind attention. This concludes Namibia’s oral submissions. Thank you.
[…]
The Court adjourned from 11.20 a.m. to 11.40 a.m.
The PRESIDENT: Please be seated. The sitting is resumed. I now call upon the delegation of Pakistan to address the Court and invite His Excellency Mr Ahmed Irfan Aslam to take the floor.
Mr ASLAM: [PAKISTAN] (23 February 2024)
PART I
1. INTRODUCTION
1. Mr President, Members of the Court, it is an honour to appear before you on behalf of the Islamic Republic of Pakistan in these most important of proceedings. These proceedings take place as a whole people struggle to survive through relentless bombardment, the very people who have endured daily persecution for over half a century. And yet, these proceedings inspire hope. They inspire hope because they present an opportunity. They afford this Court an opportunity to develop jurisprudence to advance essential principles of international law that preserves and advances the very basic human right of liberty and dignity.
2. Pakistan has always been a defender of the Palestinian people and their right to self-determination. It was Pakistan that proposed the General Assembly’s first resolution, on the first day of the Six-Day War, relating to Israel’s invasion of Jerusalem and the measures taken by Israel to change the status of the city. Since then, Pakistan has continued to engage on these important questions of international justice and it remains committed to contribute and play its part.
3. Against this background, I will deal initially with five points and then make some technical legal arguments that Pakistan considers to be of particular importance in these proceedings. First, the question of self-determination. Second, the question of occupation and annexation. Third, systematic racial discrimination and apartheid. Fourth, the question of the City of Jerusalem and its holy places, and finally, the two-State solution.
2. SELF-DETERMINATION
4. Mr President, Members of the Court, I come to my first point. The Palestinian people have, as the Court itself has recognized, the right to self-determination. This right, which is codified in the two United Nations Human Rights Conventions, is “one of the essential principles of contemporary international law”. All States have a legal interest in protecting that right, which has the status of jus cogens. Israeli measures that severely impede the exercise by the Palestinian people of the right to self-determination are in breach of Israel’s obligations to respect that right. Pakistan strongly believes in the inherent right of people to live freely and in the justice of struggle for freedom from alien subjugation under the right of self-determination.
3. OCCUPATION AND ANNEXATION
5. I turn to my second point: the question of Israel’s occupation and annexation. It has always been the position of the United Nations that it “cannot condone a change in the status juris resulting from military action contrary to the provisions of the Charter. The Organization must, therefore, maintain that the status juris existing prior to such military action be re-established by a withdrawal of troops, and by the relinquishment or nullification of rights asserted in territories covered by the military action”.
6. Thus, after the Six-Day War, the Security Council determined in resolution 242 (1967) that Israel must withdraw its armed forces from territories occupied in the recent conflict. In resolution 476 (1980), the Security Council reaffirmed “the overriding necessity for ending the prolonged occupation of Arab territories occupied by Israel since 1967”.
7. Israel’s occupation is no longer, if it ever was, a military occupation; it is annexation. In East Jerusalem, the annexation is de jure; in the rest of the territory, it is de facto. But the formal characterization matters little. To use the words of the Court in the Wall case, the occupation is today, “notwithstanding the formal characterization . . . tantamount to de facto annexation”. This now applies to the entire territory. This may have been the intention all along. Prime Minister Ben-Gurion affirmed in 1950 that “the Israeli Empire must comprise all the territories between the Nile and the Euphrates”, and this was to be achieved as much by invasion as by diplomacy. More recently, Prime Minister Netanyahu has declared that his Government will be “applying Israeli sovereignty over all the communities formed through the transfer of Israeli settlers and not one residential community will be uprooted”.
8. Through its settlement policy, Israel has sought to create “irreversible facts on the ground”. It has aimed to create physical facts which in practical terms make it as difficult as possible to bring an end to its prolonged occupation of the West Bank and East Jerusalem. Notwithstanding, the Security Council has reaffirmed that the settlements constitute “a flagrant violation under international law”.
9. As this Court said in the Namibia case: “A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence.” As in that case, in answering the legal questions now referred to it, the Court is not concerned with the question of what practical steps would be required to cease the occupation.
10. It is worth recalling, however, that even greater practical issues have been overcome in other contexts, such as when the French Government withdrew a million settlers from Algeria in 1962. The French settlers were more numerous than the Israeli settlers in the West Bank and East Jerusalem taken together. France’s settlements in Algeria were not only more numerous: they were also “far older and better established than Israel’s West Bank colonies”.
4. SYSTEMATIC RACIAL DISCRIMINATION AND APARTHEID
11. I come to my third point, regarding systematic racial discrimination. Israel’s policies and practices amount to systematic racial discrimination and apartheid. Israel has imposed a system of racial discrimination against the Palestinian people since 1967. It is a system that distinguishes - deliberately and systematically — along ethnic and religious lines between the Palestinian population and Jewish Israeli settlers illegally transferred into the territory. The purpose of domination and oppression may be inferred from Israel’s pattern of conduct against the Palestinians.
5. THE HOLY CITY OF JERUSALEM AND ITS HOLY PLACES
12. I turn to my fourth point: Jerusalem and its holy places. The Holy City of Jerusalem is unique in that it is sacred to all three Abrahamic religions. Under the historic status quo, it is the right of Christian, Jewish and Muslim communities freely to access and worship at their holy places in the city. Ottoman decrees set out these rights in the nineteenth century. The régime was later confirmed in multilateral and bilateral instruments. The historic status quo has today developed into a so-called “objective régime”, which captures the point that it is characterized by a permanence which the instruments that established it do not themselves necessarily enjoy. Every State interested therefore has the right to insist upon compliance with this régime.
13. Under Israel’s prolonged occupation, Christians have not been free to access or worship in the Church of the Holy Sepulchre and Muslims have not been free to access or worship at Haram al-Sharif and in the Al Aqsa Mosque, to name only some prominent sites. The rights under the historic status quo must immediately be restored. This issue is of great importance to Pakistan, which is home to the second largest Muslim population in the world.
6. THE TWO-STATE SOLUTION
14. And now I come to my final point of the first part of my statement. Pakistan believes that the two-State solution must be the basis for peace. In the Wall case, this Court observed that the two-State solution was to be encouraged
“with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and the establishment of a Palestinian State, existing side by side with Israel and its other neighbours, with peace and security for all in the region”.
Pakistan supports this call.
15. On 26 October 2023, Pakistan was pleased to vote in favour of the General Assembly resolution which reaffirmed that: “a just and lasting solution to the Israeli-Palestinian conflict can only be achieved . . . in accordance with international law, and on the basis of the two-State solution”. Two months later, on 22 December 2023, the Security Council reiterated its unwavering commitment to the vision of the two States, consistent with international law and relevant United Nations resolutions.
16. And these— and numerous other— resolutions by the political organs of the United Nations make clear, a two-State solution, and negotiations leading to it, must be consistent with international law. “Negotiations”, Judge Al-Khasawneh of this Court observed in the Wall case, “are a means to an end and cannot in themselves replace that end”. He continued to say that the discharge of fundamental international obligations cannot be made conditional upon negotiations.
17. In this regard, the Court’s advisory opinion in these proceedings will be most important. Far from impeding negotiations and the achievement of a just and lasting two States, the Court’s advisory opinion will further assist such efforts, by making it possible for the parties to make progress on the sound basis of international law and international legitimacy.
PART II
ISRAEL CANNOT BE ALLOWED TO BENEFIT FROM ITS OWN WRONGS
18. Mr President, Members of the Court, I now turn to more technical legal arguments of my submissions.
19. The Court has heard various competing submissions this week with respect to question (b) of the request, but there can be little doubt as to the central importance of three matters:
(a) First, the role of the rules on the use of force in governing the unlawfulness of a given occupation itself.
(b) Second, the series of General Assembly and Security Council resolutions that have consistently and expressly called for Israel’s withdrawal and referred to “the inadmissibility of the acquisition of territory by war”, which is a corollary of those rules.
(c) Third, the Court’s Advisory Opinion on Namibia is a helpful reference point for the Court.
20. Pakistan hopes to assist the Court by suggesting a slightly different way of looking at things, which leads to the conclusion that Israel’s occupation is unlawful and unlawfulness must have consequences.
A. The principle that no State can profit from its own wrong
21. In this respect, Pakistan considers that a useful touchstone for the Court is the general principle that no State can benefit from its own wrong.
22. As Sir Gerald Fitzmaurice (1901-1982) explained:
“The general principle is that States cannot profit from their own wrong . . . and similarly that rights and benefits cannot be derived from wrong-doing. This admits of no doubt. It is a wide general principle having many diverse applications under international law . . . of course these principles apply not merely as regards treaty obligations but to general international law obligations also.”
23. Notably, in the Wall case, Israel accepted that this principle is “as relevant in advisory opinions as it is in contentious cases”. The principle is particularly important where, as here, the wrongs at issue are of the most serious kind.
B. The principle in the context of the applicable law
24. Second, the principle in the context of applicable law. This principle is one of the underpinnings of the prohibition on the acquisition of territory either by force or through the denial of self-determination. The wrongs are obvious and no benefit in terms of lawful possession or a legal entitlement to administer the territory could be derived.
25. As to this case, if the Court agrees with Pakistan and with many other States that Israel is in continued breach of these fundamental primary obligations, it cannot allow Israel to benefit from its own ongoing wrongs by somehow avoiding the natural consequences that must follow under this law of State responsibility. These include the obligations of cessation and non-repetition which require immediate and unconditional withdrawal, as well as the obligations of non-recognition and non-assistance for all other States.
26. As to the applicable primary rules, it is customary international law and the Charter that govern the illegality of a given occupation at any point in time. As a separate matter, international humanitarian law governs the conduct of an occupying Power with respect to the occupied population.
27. But if the occupation itself is unlawful, that carries legal consequences for Israel and for all States under the secondary rules of State responsibility. Those legal consequences are in no way displaced by separate consideration of the lawfulness under international humanitarian law of particular conduct in the course of the occupation, much less by hope for a negotiated solution. Any other approach would effectively permit Israel to benefit from its own wrongdoing.
28. For the same reason, there is no scope for an argument that other States, in their dealings with respect to Israel or the Occupied Palestinian Territory, could somehow put to one side the question of the unlawfulness of the occupation itself. They could not, for example, elect instead to focus exclusively on the different questions of whether specific Israeli measures were absolutely necessary to meet legitimate security requirements such that those measures are not unlawful under international humanitarian law.
C. The principle in the context of the Namibia Advisory Opinion
29. Mr President, Members of the Court, any conclusion could not be reconciled with the Court’s Opinion on Namibia. There are certain clear parallels with the present case. The General Assembly had condemned South Africa’s occupation of Namibia, characterizing this as an “occupation” that engaged the Geneva Conventions, and the Security Council had expressly called for South Africa’s withdrawal.
30. In a later resolution, after condemning South Africa’s non-compliance with the earlier resolutions, the Security Council had also declared that “the continued presence of the South African authorities in Namibia is illegal”. This is to be understood as a reference to illegality under the rules on the use of force. Notably, the United States voted in favour of this resolution. With respect to Palestine, however, it now appears to wish to limit those rules to governing the lawfulness of “the initial resort to force” “leading to an occupation” only. Of course, that could not be correct, including because it would allow an aggressor to benefit from an ongoing attempt to acquire territory through annexation.
31. Indeed, in its 1971 Advisory Opinion, the Court itself concluded that, “the continued presence of South Africa in Namibia [is] illegal”. The Court held that South Africa was under an obligation to withdraw immediately and that all States were under an obligation to recognize the illegality of the occupation.
32. In reaching this conclusion, the Court found that South Africa’s application of the apartheid régime to occupied territories amounted to disowning the Mandate. In this connection, the Court relied on a context specific expression of the general principle that no State can benefit from its own wrong, stating “[o]ne of the fundamental principles governing the international relationship thus established is that a party which disowns or does not fulfil its own obligations cannot be recognized as retaining the rights which it claims to derive from the relationship”.
33. South Africa had claimed it had an independent right to administer the territory by reason of its “long occupation”. Evidently, the Court disagreed. Three points follow from this.
34. First, the Court in Namibia case implicitly recognized that neither the fact of an occupation nor the law of occupation confer upon the occupying Power any legal entitlement to administer the territory. Any contrary view would allow an occupying Power to benefit from its unlawful use of force.
35. Second, the Court made a positive finding that South Africa’s occupation was unlawful. In Namibia, there was a binding Security Council decision to that effect. The Security Council has made no such Security Council decision with respect to Palestine. But this in no way displaces or impedes the Court’s judicial function in determining this legal question for itself.
36. Third, the Court plainly did not consider that South Africa’s continued status as an occupying Power made any difference.
37. As Judge Greenwood has explained, the basic position under the law of occupation is that an occupying Power has the “liberty to govern within certain limits without being guilty of a violation of the ius in bello”. The occupying Power is required to administer the territory as a temporary conservator or trustee for the benefit of the occupied population. Acting in that capacity, the occupying Power has certain liberties to take measures in good faith in the best interests of the occupied population or, where absolutely necessary, to meet its own legitimate security interests. This, of course, is a separate question to the unlawfulness of the occupation itself.
38. As to the position under the law of occupation, again, it is helpful to recall the Namibia case. The Court’s context specific expression of the principle was that “a party which disowns or does not fulfil its own obligations cannot be recognized as retaining the rights which it claims to derive from the relationship”. Pakistan considers that this has relevance when considering whether an occupying Power should be recognized as retaining liberties to administer the occupied territory. In this case, if one were to zoom in exclusively on Israel’s conduct as an occupying Power, the only conclusion could be that Israel has disowned its basic duties. Its policies and practices of occupation deny the right of the Palestinian people to self-determination and amount to systematic racial discrimination and serious violations of international humanitarian law and human rights. Plainly, they cannot be said to be absolutely necessary to meet Israel’s own security interests. They serve Israel’s other interests, including its goal of acquiring the territory.
D. Conclusion
40. Mr President, Members of the Court. I conclude. With the general principle that no State can be benefit from its own wrong firmly in mind, it cannot be right that, as some States have suggested, the Court should refrain from finding that the occupation itself is unlawful or that there is no obligation to withdraw. This would be to allow Israel to profit from its own continued grave wrongs. And, to adopt the Court’s words in Namibia, the Court “would be failing in the discharge of its judicial functions”. Such abdication of responsibility would not encourage or facilitate the achievement of a negotiated solution on the basis of international law. More generally, the Court would be sending out a clear signal to other States that they too might be allowed to benefit through the prolonged unlawful occupation of the territory of another State.
41. Mr President, Members of the Court, these proceedings are a great moment in law, they are a great moment in history. We all have a collective opportunity to develop jurisprudence in a way that advances the cause of humanity. I wish you good luck in your deliberations. Thank you.
The PRESIDENT: I thank the delegation of Pakistan for its presentation.
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JLF Moving Solutions Take Delivery of New Scania R320
… while their first Scania hits the 1½ million kilometres landmark
Keltruck, the largest independent Scania Distributor in Europe, has supplied a new Scania R320 to JLF Moving Solutions of Burntwood, Staffordshire. The truck is the fifth Scania truck to join their fleet, while the first – bought in 2001 – is still going strong and has recently surpassed 1½ million kilometres.
JLF Moving Solutions was started by brothers, John & Steve Lomas in 2009, with 35 years’ experience. The first vehicle they owned was a Ford Transit van. They now have 31 vehicles, including five Scania trucks, to help them with removals, homepack services, office removals, European removals, containerised storage, document storage and specialist services to the fire & flood industry.
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Their new Scania R320 high roof is the company’s first new generation Scania with the newly developed interior. JLF was able to customise their truck by adding a third seat to accommodate a full team of moving staff.
Keltruck has now been working with Steve and John for 18 years and has developed a great working relationship. All of JLF Moving Solutions’ Scania vehicles are serviced on long term repair and maintenance contracts, starting at 60 months and extending beyond that.
John Lomas continued, “The Scania trucks are excellent – a great drive and very robust – while the support we get from Keltruck is outstanding, both in terms of the buying process and the aftersales services.”
Keltruck Account Manager Tony Biddlestone commented, “We have a great relationship with JLF Moving Solutions. It is a pleasure to deal with John and Steve. The new R320 vehicle they have purchased is something different to your everyday Scania, with the new interior focused on driver comfort, which is perfect for JLF as the company’s operation has more than one occupant, so we focused on cab size and driver comfort.”
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Credit: Stephen Yang / The Solutions Project
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Credit: Stephen Yang / The Solutions Project
Naupaka kuahiwi or Chamissos' scaevola
Goodeniaceae
Endemic to the Hawaiian Islands (Molokaʻi, Lānaʻi, Maui, Hawaiʻi Island)
Hawaiʻi Volcanoes National Park, Hawaiʻi Island
Early Hawaiians used the fruits of naupaka kuahiwi to produce a purplish black dye. The fragrant flowers were used in lei making.
The Legend:
In ancient times, one version goes, there was a beautiful Hawaiian princess known as Naupaka. One day, the villagers noticed that Naupaka looked very sad. They told her parents, who approached Naupaka and asked her what was troubling her.
“I have fallen in love with a man named Kaui,” replied the princess. “But Kaui is not of noble birth—he is a commoner.” According to Hawaiian tradition, it was strictly forbidden for members of royalty to marry people from the common ranks.
Distressed, Naupaka and Kaui traveled long and far, seeking a solution to their dilemma. They climbed up a mountain to see a kahuna who was staying at a heiau (temple). Alas, he had no clear answer for the young lovers. “There is nothing I can do,” he told them, “but you should pray. Pray at this heiau.”
So they did. And as they prayed, rain began to fall. Their hearts torn by sorrow, Naupaka and Kaui embraced for a final time. Then Naupaka took a flower from her ear and tore it in half, giving one half to Kaui. “The gods won’t allow us to be together,” she said. “You go live down by the water, while I will stay up here in the mountains.”
As the two lovers separated, the naupaka plants that grew nearby saw how sad they were. The very next day, they began to bloom in only half flowers.
There are different versions of the naupaka legend, but all carry the same unhappy theme: lovers that are separated forever, one banished to the mountains, the other to the beach. www.aloha-hawaii.com
View Naupaka kahakai or Beach naupaka www.flickr.com/photos/dweickhoff/5187929027/
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