WeeklySA_AdminBreach: Israel’s measures was a breach of the un treaty and governments must prevent and eradicate this apartheid
By Sherwin Bryce-Pease
The United Nations General Assembly (UNGA) was considering a draft resolution that sought to affirm a July advisory opinion of the International Court of Justice (ICJ) that Israel’s occupation of Palestinian territories was contrary to international law and that it should end.
The ICJ determined, among other things, that Israel’s policies and practices, such as its maintenance and expansion of settlements, were designed to “create irreversible effects on the ground” and, as such, “amount to annexation of large parts” of the occupied Palestinian territories.
The draft resolution introduced by Palestine “demands that Israel brings to an end without delay its unlawful presence in the Occupied Palestinian Territories and to do so no later than twelve months from the adoption of the current resolution”.
In a sweeping advisory opinion, the ICJ found Israel’s continued presence in the Occupied Palestinian Territories including East Jerusalem and the West Bank was unlawful and called on the UNGA and the Security Council to consider further actions to ensure the occupation ends.
Almost two months later, there was a push in the UNGA to achieve just that, even though its decisions, like the advisory opinion, were not legally binding but reflected legal and global sentiment on any issues.
Israel’s Ambassador Danny Danon rejected the effort, calling it diplomatic terrorism that used the tools of diplomacy not to build bridges but to destroy them. Israel’s key ally, the United States, expressed itself against the resolution.
Palestinians sought the territories captured by Israel after the 1967 War, including the West Bank, East Jerusalem and Gaza for a future independent Palestinian State. A decision on the General Assembly draft was expected by last weekt as debate among member states continued.
Meanwhile, senior legal adviser, Clive Baldwin writes that the International Court of Justice’s (ICJ) July advisory opinion on the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territory, was a landmark ruling. The ICJ’s findings were legally and morally persuasive, and set out obligations on all states, and on the United Nations itself. Two of its important conclusions were with respect to apartheid and reparations.
The court found Israel’s measures in the West Bank that imposed and maintained separation between Palestinians and Israeli settlers were a breach of Article 3 of the UN treaty prohibiting racial discrimination. Article 3 obligated governments to prevent, prohibit and eradicate all racial segregation and apartheid.
Though the court’s language was a compromise, limited to separation, the finding meant that Israel was responsible for apartheid. Several judges, including Judge Nawaf Salam, the court’s president, and Judge Dire Tladi, a South African, made this clear in their separate declarations. Two of the ICJ’s 15 judges disagreed and said the court should not find apartheid. One of these, Judge Georg Nolte, asserted a standard of intent for apartheid that would be nearly impossible to prove, and said the court should not find racial segregation either.
The court’s opinion does not address criminal law, only apartheid as a human rights violation. But Salam’s separate opinion set out the definition of apartheid as a crime and discussed how many jurists and organizations, including Human Rights Watch, had found Israel responsible for this crime against humanity.
Salam’s discussion of the crime should be studied by relevant criminal justice authorities, including the International Criminal Court (ICC) prosecutor, as it outlined the legal framework needed to investigate the crime of apartheid. The ICJ’s finding on apartheid should also help focus discussions about apartheid against Palestinians on the legal definition of apartheid, not limiting it to the historical case of South Africa.
Another key finding was the court’s short and clear statement on reparations. Israel, the court found, should return land and other property seized since the occupation began in 1967. It should also evacuate all settlers, allow all Palestinians displaced during the occupation to return to their original place of residence, and compensate everyone who suffered material damage as a result of Israel’s unlawful acts during the occupation. States and the UN should urgently take up this call, including considering, as Tladi suggested, and the UN General Assembly had now called for, an international mechanism for reparation.
