Existence vs Expansion

Former Ambassador, Human Rights Activist

In its reaction to the International Court of Justice’s crystal clear ruling on occupied Palestine, the Labour government has disgracefully attempted to ignore the ruling and to contine the Tory policy of total support for Israel.

The UK statement says that:

The Foreign Secretary was clear on his visit to Israel and the Occupied Palestinian Territories earlier this week that the UK is strongly opposed to the expansion of illegal settlements and rising settler violence.

But of course it is not the expansion of Israel’s illegal settlements that is at issue. It is their existence.

New Labour’s position is that the 800,000 Israeli illegal settlers currently in the West Bank and East Jerusalem should stay in their illegal settlements. That is the opposite of what the International Court of Justice said in its Opinion, which is that Israel must undertake restitution.

270. Restitution includes Israel’s obligation to return the land and other immovable property, as well as all assets seized from any natural or legal person since its occupation started in 1967, and all cultural property and assets taken from Palestinians and Palestinian institutions, including archives and documents. It also requires the evacuation of all settlers from existing settlements and the dismantling of the parts of the wall constructed by Israel that are situated in the Occupied Palestinian Territory, as well as allowing all Palestinians displaced during the occupation to return to their original place of residence

Plainly “It also requires the evacuation of all settlers from existing settlements” is fundamentally different from Lammy/Starmer line that Israel must not further expand the illegal settlements.

This is extremely important. Maximum pressure must be brought on the Labour government to align with the ICJ. The official policy is that the UK does respect and follow ICJ judgments.

MPs need immediately to press ministers on this precise point. Does the UK accept the ICJ ruling that all illegal settlers must be removed from all settlements?

You can help by writing to your MP asking for their view on this specific question, pointing out the UK’s legal obligation to follow the rulings of the ICJ.

Furthermore the Court specifically stated that states may not trade with Israeli interests in the Occupied Territories. The ICJ said at Para 278 that all states are obliged:

…to abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory or parts thereof which may entrench its unlawful presence in the territory…and to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory.

Again the Labour government must be pressed to meet its legal obligation to comply with the ICJ ruling. I fully support direct action by activists to destroy products in shops imported from Occupied Palestine, and thus ensure compliance with international law.

The second part of the British government statement is an attempt to maintain the position which was roundly rejected by the International Court of Justice. The zionist states had attempted to argue before the court that the general principles of international law had been superceded in this case by the Oslo Accords.

The British government is striking for the “safety” of this position in the second part of its statement, where it says:

This government is committed to a negotiated two-State solution which can deliver a safe and secure Israel alongside a viable and sovereign Palestinian state.

The problem is that there can be no equality of negotiation between the occupier and the occupied, particularly when the occupied are subject to the apartheid and systematic despoilation outlined at length in the ICJ judgment.

The British government position is precisely the same as arguing that the general principles of international law were negated by the “negotiated settlement” that set up Vichy France.

The ICJ directly addressed and overruled these objections put forward by the UK and partners to its acting in this case:

38. Some participants have contended that the Court should decline to reply to the questions put to it because an advisory opinion from the Court would interfere with the Israeli-Palestinian negotiation process laid out by the framework established in the 1993 Declaration of Principles on Interim Self-Government Arrangements (hereinafter the “Oslo I Accord”) and the 1995 Interim Agreement on the West Bank and the Gaza Strip (hereinafter the “Oslo II Accord”), and may exacerbate the Israeli-Palestinian disagreement, thereby compromising the outcome of negotiations.

39. In the view of other participants, an advisory opinion from the Court would not interfere with the negotiation process and the Court should not decline to give one on this basis. They have suggested that, on the contrary, an opinion from the Court is all the more necessary in light of the fact that Israeli-Palestinian negotiations have been stalled for many years.

40. In the present circumstances, the question of whether the Court’s opinion would have an adverse effect on a negotiation process is a matter of conjecture. The Court cannot speculate about the effects of its opinion. In response to a similar argument in another case, the Court stated:

“It has . . . been submitted that a reply from the Court in this case might adversely affect disarmament negotiations and would, therefore, be contrary to the interest of the United Nations. The Court is aware that, no matter what might be its conclusions in any opinion it might give, they would have relevance for the continuing debate on the matter in the General Assembly and would present an additional element in the negotiations on the matter. Beyond that, the effect of the opinion is a matter of appreciation. The Court has heard contrary positions advanced and there are no evident criteria by which it can prefer one assessment to another.”
(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 237, para. 17.)
In light of the foregoing, the Court cannot regard this factor as a compelling reason to decline to respond to the General Assembly’s request.

41. It has been contended by some participants that the Court should exercise its discretion to decline to answer the questions before it, while others have argued that, even if the Court were to reply to these questions, it should take care that its reply does not interfere with the established framework for negotiations, since it is the Security Council, and not the General Assembly, whichhas primary responsibility for issues relating to the Israeli-Palestinian conflict. According to these participants, an advisory opinion from the Court could negatively affect or interfere with the negotiation framework that the Security Council has established for resolution of the dispute. Other participants who have addressed the question have argued that the Court’s opinion would not be detrimental to the work of the Security Council. In their view, the Security Council does not have
exclusive responsibility under the Charter with respect to the maintenance of international peace and security, since the General Assembly may also address, alongside the Security Council, issues of such concern.

42. This argument is similar to the one examined in section 3 above, in so far as the negotiating framework is concerned, but also concerns the respective competences of the Security Council and the General Assembly in the maintenance of international peace and security. The Court addressed the latter issue in its Wall Advisory Opinion as follows: “Under Article 24 of the Charter the Security Council has ‘primary responsibility for the maintenance of international peace and ecurity’”
(I.C.J. Reports 2004 (I), p. 148, para. 26).
However, the Court emphasized that “Article 24 refers to a primary, but not necessarily exclusive, competence” (ibid.). The General Assembly has the power,
inter alia, under Article 14 of the Charter to “recommend measures for the peaceful adjustment of any situation”. The Court further stated that “there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security” and that this “accepted practice of the General Assembly, as it has evolved, is consistent with Article 12, paragraph 1, of the Charter”
(Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 149-150, paras. 27-28). This is indeed the case with respect to certain aspects of the Palestinian question.

43. The Court also recalls that Article 10 of the Charter confers on the General Assembly a competence relating to “any questions or any matters” within the scope of the Charter and that Article 11, paragraph 2, specifically provides it with competence to “discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations”. This is the case with respect to the questions posed by the General Assembly in the
present proceedings. As the Court has stated previously,
“[w]here, as here, the General Assembly has a legitimate interest in the answer to a question, the fact that that answer may turn, in part, on a decision of the Security Council is not sufficient to justify the Court in declining to give its opinion to the General Assembly”
(Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 423, para. 47).
As pointed out in paragraph 40 above, whether the opinion of the Court would have an adverse effect on the negotiation framework is a matter of conjecture on which the Court should not speculate.
Moreover, in view of the fact that the General Assembly has the competence to address matters concerning international peace and security, such as those raised in the questions it has posed, there is no compelling reason for the Court to decline to give the requested opinion

I have given the link to the full Opinion of the ICJ. This is an excellent summary from Law For Palestine. The Opinion is extremely lucid and decisive.

The ball is now back in the court of the UN General Assembly, which requested the Opinion. The General Assembly now should move to suspend Israel’s membership of the United Nations. That is the next project on which I shall be working.

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