Presentation by Dr. Ralph Wilde on Behalf of League of Arab States
This TML Supplement on Palestine is posting for information of our readers the presentation by Dr. Ralph Wilde, Senior Counsel and Advocate on behalf of the League of Arab States on the legal questions before the International Court of Justice on March 1. Dr. Wilde is an associate professor at University College London, Faculty of Laws.
His presentation provides the legal basis to affirm the Palestinian right to self determination. Amongst other things it provides the proof that there is no basis in international law for the apartheid state of Israel to exist. And that international law requires Israel to end the occupation without conditions, including so called "guarantees of security" and other such claims. It also shows that the argument that the state of Israel has been granted an exceptional right to "defend itself" arising from the Holocaust is completely bogus, as the illegal creation of the apartheid state goes back to British violations of the right to self-determination recognized in the terms arising from the Treaty of Versailles.
A video of Dr. Wilde's presentation can also be viewed by clicking here.
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Mr. President, distinguished Members of the Court, it is a great honour and privilege to appear before you, and to represent the League of Arab States.
More than Century-Long Denial of Self-Determination of, and War Against, the Palestinian People, on the Basis of Racism
The Palestinian people have been denied the exercise of their legal right to self-determination through the more than century-long violent, colonial, racist effort to establish a nation State exclusively for the Jewish people in the land of Mandatory Palestine.
When this began after the First World War, the Jewish population of that land was 11 per cent. Forcibly implementing Zionism in this demographic context has necessarily involved the extermination, or forced displacement of, some of the non-Jewish Palestinian population; the exercise of domination over, and subjugation, dispossession and immiseration of, remaining non-Jewish Palestinians; the emigration to that land of Jewish people, regardless of any direct personal link; and the denial of Palestinian refugees the right to return. All operating through a racist distinction privileging Jewish people over non-Jewish Palestinian people.
This has necessitated serious violations of all the fundamental, jus cogens and erga omnes norms of international law -- the right of self-determination, the prohibitions on aggression, genocide, crimes against humanity, racial discrimination, apartheid and torture -- and the core protections of international humanitarian law.
Today I will address, first, violations of international law arising out of the regime of racial domination -- apartheid -- perpetrated against the Palestinian people across the entire land of historic Palestine, and then, second, the existential illegality of Israel's occupation of the Palestinian Gaza Strip and West Bank, including East Jerusalem, since 1967.
As a necessary prerequisite, I must begin with the special right granted to the Palestinian people in the League Covenant.
Palestinian Self-Determination Under Article 22 of
League
of Nations Covenant
The legal right of self-determination of the Palestinian people originates in the "sacred trust" obligations of Article 22 of the League Covenant, part of the Versailles Treaty. Palestine -- an "A" class Mandate under British colonial rule -- was, after the First World War, supposed to have its existence as an independent State "provisionally recognized": a sui generis right of self-determination.
The United Kingdom and other members of the League Council attempted to bypass this, incorporating the 1917 Balfour Declaration commitment to establishing a national home for the Jewish people in Palestine into the instrument stipulating how the Mandate would operate.
However, the Council had no legal power to bypass the Covenant in this way. It acted ultra vires, and the relevant provisions were, legally, void. There was and is no legal basis in that Mandate instrument for either a specifically Jewish State in Palestine, or the United Kingdom's failure to discharge the "sacred trust" obligation to implement Palestinian self-determination.
Self-Determination in International Law After the Second World War -- an Additional Right
After the Second World War, a self-determination right applicable to colonial peoples generally crystallized in international law.
For the Palestinian people, this essentially corresponded to, and supplemented, the pre-existing Covenant right, regarding the same, single territory. The 1947 proposal to partition Palestine was contrary to this; the Arab rejection an affirmation of the legal status quo.
In 1948, then, Palestine was, legally, a single territory with a single population enjoying a right of self-determination on a unitary basis.
Nakba in 1948 -- Violation of Self-Determination and Creation of a Regime Involving an Ongoing Violation of This Right, as Well as Racial Discrimination and Apartheid and a Denial of the Right to Return
Despite this, a State of Israel, specifically for Jewish people, was proclaimed in 1948 by those controlling 78 per cent -- more than three quarters -- of Palestine, accompanied by the forced displacement of a significant number of the non-Jewish Palestinian population -- the Nakba, catastrophe. This illegal secession was an egregious violation of Palestinian self-determination. Israel's statehood was recognized, and Israel [was] admitted as a United Nations Member, despite this illegality. Israel is not the legal continuation or successor of the Mandate.
This violation of Palestinian self-determination is ongoing, and unresolved. Two key elements are:
First, Palestinian people not displaced from the land proclaimed to be of Israel in 1948, and their descendants, have been forced to live as citizens -- presently they constitute 17.2 per cent -- of a State conceived to be of and for another racial group, under the domination of that group, necessarily treated as second class, because of their race.
Second, Palestinian people displaced from that land, and their descendants, cannot return.
These are serious breaches of the right of self-determination, the prohibitions of racial discrimination and apartheid, and the right of return. They must end, immediately.
1967 Israeli Capture of the Palestinian Gaza Strip and West
Bank
(Including East Jerusalem)
As if this ongoing Nakba was not catastrophic enough, in 1967 Israel captured the remaining 22 per cent of historic Palestine -- the Gaza Strip and West Bank, including East Jerusalem -- the Naksa. It has maintained that use of force to remain in control for the 57-year period since.
Illegal Racial Domination -- Apartheid -- from the Jordan River to the Mediterranean Sea
For more than half a century, then, a State defined to be of and for Jewish people exclusively has governed the entire land of historic Palestine and the Palestinian people there. And the regime of racial domination -- apartheid -- and denying return, has been extended throughout. In the case of Palestinians living in the occupied territory, this has involved the same serious violations of international law, supplemented by serious violations of norms applicable in occupied territory.
Indeed, these people are subject to an even more extreme form of racist domination, as they are not even citizens of the State exercising authority over them. Even in East Jerusalem, which Israel has purported to annex, the majority non-Jewish Palestinian residents do not have citizenship, whereas Jewish residents, including illegal settlers, are citizens.
Just as in territorial Israel, in occupied territory, these serious violations concerning how Israel exercises authority over the Palestinian people must end immediately.
However, here, a more fundamental matter must also be addressed. The illegality of the exercise of authority itself.
The Gaza Strip and West Bank as Palestinian Territory, with the Consequence That Israel's Purported Annexation, and Attempted Colonization, Are Illegal
The enduring Palestinian right of self-determination means that the Palestinian people, and the State of Palestine, not Israel, are sovereign over the territory Israel captured in 1967. For Israel, the land is extraterritorial, and, given what I said about the Mandate, territory over which it has no legal sovereign entitlement.
Despite this, Israel has purported to annex East Jerusalem and taken various actions there and in the rest of the West Bank constituting de jure and de facto purported annexation, including implanting settlements. It is Israeli policy that Israel should be not only the exclusive authority over the entire land between the river and the sea, but also the exclusive sovereign authority there.
This constitutes a complete repudiation of Palestinian self-determination as a legal right, since it empties the right entirely of any territorial content.
Actualizing this through de facto and de jure purported annexation is, first, a serious violation of Palestinian self-determination and, second, because it is enabled through the use of force, a violation of the prohibition on the purported acquisition of territory through the use of force in the law on the use of force, and so an aggression. Serious violations of further areas of law regulating the conduct of the occupation are also being perpetrated, notably the prohibitions on implanting settlements and altering, unless absolutely prevented, the legal, political, social and religious status quo.
The occupation is, therefore, existentially illegal because of its use to actualize purported annexation. To end this serious illegality, it must be terminated: Israel must renounce all sovereignty claims and all settlements must be removed. Immediately.
However, this is not the only basis on which the occupation's existential legality must be addressed.
We need to delve deeper into both the law of self-determination and the law on the use of force.
Self-Determination as a Right to Be
Self-Governing, Requiring the
Occupation to End Immediately
Beginning with self-determination: this right, when applied to the Palestinian people in the territory Israel captured in 1967, is a right to be entirely self-governing, free from Israeli domination.
Consequently, the Palestinian people have a legal right to the immediate end of the occupation. And Israel has a co-relative legal duty to immediately terminate the occupation.
This right exists and operates simply and exclusively because the Palestinian people are entitled to it. It does not depend on others agreeing to its realization. It is a right.
It is a repudiation of "trusteeship," whereby colonial peoples were ostensibly to be granted freedom only if and when they were deemed "ready" because of their stage of "development" determined by the racist standard of civilization. The anti-colonial self-determination rule replaced this with a right based on the automatic, immediate entitlement of all people to freedom, without preconditions. In the words of General Assembly resolution 1514, "inadequacy of . . . preparedness should never serve as a pretext for delaying independence."
Some suggest that the Palestinian people were offered, and rejected, deals that could have ended the occupation. And, therefore, Israel can maintain it pending a settlement. Even assuming, arguendo, the veracity of this account, the "deals" involved a further loss of the sovereign territory of the Palestinian people.
Israel cannot lawfully demand concessions on Palestinian rights as the price for ending its impediment to Palestinian freedom. This would mean Israel using force to coerce the Palestinian people to give up some of their peremptory legal rights: illegal in the law on the use of force and, necessarily, voiding the relevant terms of any agreement reached. The Palestinian people are legally entitled to reject a further loss of land over which they have an exclusive, legal, peremptory right. Any such rejection makes no difference to Israel's immediate legal obligation to end the occupation.
The Occupation as an Illegal Use of Force in the Jus Ad Bellum as a General Matter (Beyond the Link to Purported Annexation)
Turning to the law on the use of force: Israel's control over the Palestinian territory since 1967, as a military occupation, is an ongoing use of force. As such, its existential legality is determined by the law on the use of force, as a general matter, beyond the specific issue of annexation.
Israel captured the Gaza Strip and West Bank from Egypt and Jordan in the war it launched against them and Syria. It claimed to be acting in self-defence, anticipating a non-immediately imminent attack. The war was over after six days. Peace treaties between Israel and Egypt and Jordan were subsequently adopted
Despite this, Israel maintained control of the territory -- continuing the use of force enabling its capture.
Israel's 1967 war was illegal in the jus ad bellum -- even assuming, arguendo, its claim of a feared attack, States cannot lawfully use force in non-immediately imminent anticipatory self-defense.
Alternatively, assuming -- again arguendo -- that the war was lawful, the justification ended after six days. However, the jus ad bellum requirements continued to apply to the occupation as itself a continuing use of force. In 1967, with self-determination well established in international law, States could not lawfully use force to retain control over a self-determination unit captured in war, unless the legal test justifying the initial use of force also justified, on the same basis, the use of force in retaining control. Moreover, this justification would need to continue, not only in the immediate aftermath, but for more than half a century. Manifestly, this legal test has not been met.
Israel's exercise of control over the Gaza Strip and West Bank through the use of force has been illegal in the jus ad bellum since the capture of the territory, or, at least, very soon afterwards.
The occupation is, therefore, again existentially illegal in the law on the use of force -- an aggression -- this time, as a general matter, beyond illegality specific to annexation. To terminate this serious violation, the occupation must, likewise, end immediately.
Illegal Force Does Not Become Lawful in Response to Resistance to it
What of Israel's current military action in Gaza? This is not a war that began in October 2023. It is a drastic scaling-up of the force exercised there, and in the West Bank, on a continual basis, since 1967. A justification for a new phase in an ongoing illegal use of force cannot be constructed solely out of the consequences of violent resistance to that illegal use of force. Otherwise, an illegal use of force would be rendered lawful because those subject to it violently resisted -- circular logic, with a perverse outcome.
Israel Cannot Lawfully Use Force to Control the Palestinian Territory for Security Purposes/Pending a Peace Agreement
More generally, Israel cannot lawfully use force to control the Palestinian territory for security purposes pending an agreement providing security guarantees. States can only lawfully use force outside their borders in extremely narrow circumstances. Beyond that, they must address security concerns non-forcibly.
The United States of America, the United Kingdom and Zambia suggested here that there is a sui generis applicable legal framework, an Israeli-Palestinian lex specialis. This somehow supersedes the rules of international law determining whether the occupation is existentially lawful. Instead, we have a new rule, justifying the occupation until there is a peace agreement meeting Israeli security needs. This is the law as these States would like it to be, not the law as it is. It has no basis in resolution 242, Oslo or any other resolutions or agreements. Actually, you are being invited to do away with the very operation of some of the fundamental, peremptory rules of international law itself. As a result, the matters these rules conceive as rights vested in the Palestinian people would be realized only if agreement is reached, and only on the basis of such agreement. At best, if there is an agreement, this means one that need not be compatible with Palestinian peremptory legal rights, determined only by the acute power imbalance in Israel's favour. At worst, if there is no agreement, this means that the indefinite continuation of Israeli rule over the Palestinian people in the occupied Palestinian territories, on the basis of racist supremacy and a claim to sovereignty, would be lawful. This is an affront to the international rule of law, to the United Nations Charter imperative to settle disputes in conformity with international law, and to your judicial function as guardians of the international legal system.
A final potential basis sometimes invoked to justify continuing the occupation should be addressed. Occupation and human rights law -- applicable to illegal and lawful occupations alike -- oblige Israel to address security threats in occupied territory. However, they only regulate the conduct of an occupation when it exists. They do not also provide a legal basis for that existence itself. Existential legality is determined by the law of self-determination and the jus ad bellum only. There is no "back door" legal basis for Israel to maintain the occupation through the imperatives of occupation and human rights law.
Existential Illegality of Israel's Occupation of the Palestinian Gaza Strip and West Bank, Including East Jerusalem
In sum: the occupation of the Palestinian Gaza Strip and West Bank, including East Jerusalem, is existentially illegal on two mutually reinforcing bases.
First, the law on the use of force. Here, the occupation is illegal both as a use of force without valid justification, and because it is enabling an illegal purported annexation. As such, it is an aggression.
Second, the law of self-determination. Here, it is illegal again because of the association with illegal purported annexation, and also, more generally, because it is, quite simply, an exercise of authority over the Palestinian people that, by its very nature, violates their right to freedom.
This multifaceted existential illegality -- involving serious violations of peremptory norms -- has two key consequences.
First: the occupation must end: Israel must renounce its claim to sovereignty over the Palestinian territory; all settlers must be removed. Immediately. This is required to end the illegality, to discharge the positive obligation to enable immediate Palestinian self-administration, and because Israel lacks any legal entitlement to exercise authority.
Second, in the absence of the occupation ending, necessarily, everything Israel does in the Palestinian territory lacks a valid international legal basis and is, therefore (subject to the Namibia exception), invalid, not only those things violating the law regulating the conduct of the occupation. Those norms entitle and require Israel to do certain things. But this does not alter the more fundamental position, from the law on the use of force and self-determination, that Israel lacks any valid authority to do anything, and whatever it does is illegal, even if compliant with or pursuant to the conduct-regulatory rules.
The Words of Refaat Alareer
I will close by quoting Palestinian academic and poet Refaat Alareer, from his final poem posted 36 days before he was killed by Israel in Gaza on 6 December 2023: If I must die, you must live to tell my story.... If I must die let it bring hope, let it be a story.
Thank you for your attention.
This article was published in
Volume 54
Number 16 - March 5, 2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/MS54167.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca