Pearls and Irritations

A position paper has been published by the organisation BADIL in October, suggesting that the International Court of Justice (ICJ) decision on the illegality of Israel’s occupation of Palestinian territory further fragments the Palestinian people and marginalises their rights.

Readers will be aware to some degree of the decision of the ICJ on 19 July last: recall The ICJ decision – where to from here? (25 July 2024). You would be forgiven if you are not so aware, because our mainstream media never adverts to it, as it is anathema for Israel and its supporters.

In summary, Israel’s occupation of Palestinian territory occupied in the 1967 six-day war is illegal and must be ended as soon as possible. 

All settlements with their settlers must be evacuated, and reparations for damage caused must be forthcoming. All states in the community of nations must act in compliance with the ruling.Significantly, apartheid was found to exist in the lands under occupation.

The advisory opinion was referred back to the General Assembly which passed a resolution on 18 September giving effect to the ICJ decision: recall UN Palestine vote: Australia shows it lacks a backbone (19 September 2024). Pursuant to the resolution, Israel has to end its occupation, including by settlers, without delay and within 12 months. All displaced Palestinians must be allowed to return to their original place of residence, and reparations made for any damage caused to them. The resolution was passed by a 2/3rds majority of member states present and voting. Such majority is required under the UN Charter for important decisions appertaining to the maintenance of international peace and security. 181 States voted. 124 voted in favour. 2/3rds of 181 is of course 121. Australia abstained but of course is bound by the decision.

A Position Paper containing a critical analysis of the ICJ’s Advisory Opinion of 19 July this year has now been published: The words, ‘critical analysis’ would have caused most observers to assume that it was advanced by Israel or an Israeli or Zionist entity. They would have been wrong. The analysis was by the BADIL Resource Centre for Palestinian Residency and Refugee Rights situate in Bethlehem in the West Bank. It was published in October. It immediately struck the writer as relevant to the wider Palestinian diaspora.

So, what is this criticism of the ICJ’s decision? The suggestion is that it further fragments the Palestinian people and marginalises their rights.

1. It doesn’t apply to the Gaza Strip.
2. It ignores history prior to 1967, viz., the Nakba in ’47-’48, and the colonisation between 1948 and 1967, and thereby contemplates the denial of the right of return to refugees of that period, i.e. a right of return to all of Mandatory Palestine
3. It doesn’t emphasise apartheid, including in the whole of Mandatory Palestine: it applies Article 3 of CERD, i.e. the International Convention on the Elimination of All Forms of Racial Discrimination, only to the West Bank and East Jerusalem. It doesn’t address apartheid in the rest of Jerusalem and Mandatory Palestine, nor as a result of the 17 year long blockade on Gaza.
4. It goes beyond the ICJ’s mandate as a court of law to proffer diplomacy, political ‘solutions’, compromises, not legal solutions, that are contrary to full Palestinian rights.

A consideration of these criticisms suggests that there is some weight in them. Why should Palestinians expelled from their land at any time from Mandatory Palestine before the ’67 Six Day War be excluded from the right to reparations, or return, assuming that is the effect? Why should Palestinians expelled from Israel (as opposed to the West Bank and East Jerusalem) into the Gaza Strip, at any time, be excluded from the right to reparations or return, again, assuming that is the effect?

The criticism extends to the UN General Assembly in that it, when directing member States, does not do what it did do last Century re apartheid South Africa. To quote directly from the Position Paper:

With regards to the question of apartheid in South Africa, the UNGA requested Member States to take various measures to bring about an end to South Africa’s apartheid policies, including:

• severing diplomatic relations
• closing their ports to all vessels flying the South African flag
• prohibiting their own ships from entering South African ports
• boycotting all South African goods and refraining from exporting goods, including all arms and ammunition, and
• refusing landing and passage facilities to all South African government and companies’ aircraft.

UNGA Res 1761 (XVII) (6 November 1962).

In summary, the effect of all this is said to be that the ICJ Opinion limits the scope of the Palestinian people’s inalienable rights to self-determination and return, solely to the Palestinians living in the Occupied Palestinian Territories, i.e. West Bank and East Jerusalem.

It is of course necessary to be aware of these criticisms. Many, however, will no doubt say that they should not be allowed to delay the implementation of what the ICJ and General Assembly have called for. In that respect it will be noted that not much has happened to date, and a lot of angst will be suffered before Israel facilitates the removal of Israeli citizens and settlers from the West Bank and East Jerusalem.

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