Israel and the International Court of Justice
Israel is the subject of unparalleled level of attention, specifically within the UN system. The recent war in Gaza has ushered in the newest stage of “lawfare” as South Africa has brought proceedings against Israel alleging Israel is guilty of genocide before the International Court of Justice (ICJ). This is in addition to two other cases pending before the ICJ: a request for an Advisory Opinion on “the legal consequences of Israel’s prolonged occupation of Palestinian territory”, and proceedings initiated by Palestine against the United States regarding the US embassy in Jerusalem.
Misconceptions About Gaza
- “Gaza is the most densely populated place in the world”: This is not true. Cities such as Manhattan, Mumbai, and Mexico City surpass Gaza in population density.
- “Gaza is occupied”: This is not true. Occupation requires “boots on the ground”. Israel withdrew all Israeli military and civilians from Gaza entirely in 2005. The only Israeli military personnel to enter Gaza are those in the current campaign, beginning after October 7, 2023.
- “There is an illegal naval blockade of Gaza”: This is not true. A UN commission found that the Israeli blockade was legal and permissible due to Hamas firing indiscriminately into Israel.
Provisional Measures- South Africa v. Israel
On December 29, 2023, South Africa accused Israel of violating the 1948 Genocide Convention, requesting “provisional measures”, including halting Israeli military activity in Gaza. The legal test at this early stage is whether it is “plausible” that Israel is committing genocide, as opposed to evidence of genocide actively taking place.
Advisory Opinion on the Occupation
On December 30, 2022, the United Nations General Assembly requested an advisory opinion from the ICJ questioning the “legal consequences” of Israel’s occupation of East Jerusalem, West Bank and Gaza, and the status of “the Holy City of Jerusalem”. The General Assembly appears to condemn Israel prematurely, as they refer to the “ongoing violation of Israel” in the occupied territories. Over 55 states and international organizations have submitted written statements, and oral proceedings will commence on 19th February in The Hague.
It is important to note that under international law, the following can be stated:
- Occupation of territory is not illegal, in fact it is permissible under The Hague Regulations of 1907 and Fourth Geneva Convention.
- The mere duration of the occupation does not render it illegal.
- Jerusalem has never been “Palestinian” territory. Israel’s claim to West Jerusalem is solid and Israel retains a superior claim to East Jerusalem.
- The only “legal consequences for states and for the UN” should be insisting the Arabs comply with Resolution 242 by ceasing belligerency toward Israel and recognizing Israel’s right to live in peace with secure borders free from threats or acts of force.
Please find here prof. Steven Zippersteins presentation:
Watch the whole webinar here:
