By Hassan Ben Imran
Last week, the International Court of Justice, the world's top court, delivered a historic ruling declaring Israel's occupation over the Palestinian territories since 1967 as unlawful. The decision reiterated Palestinians' right to self-determination, including the right to return and reparations and restitution. In so many ways, the ruling was great news for the Palestinian struggle for freedom and liberation.
However, ever since the decision came down, I have been asked several times by colleagues and journalists not only what I "think," but also how I "feel" about it. It was a mixture of feelings. It was a progressive and helpful ruling, taking unfair structural limitations into account, but the price for this ruling was paid by Palestinians' blood.
What the court said
The ICJ unequivocally declared Israel's occupation over the Palestinian territories unlawful, in and of itself, meaning that this occupation should unconditionally be terminated and settlements be dismantled. The Court went on to reiterate that Israel is, inter alia, illegally annexing Palestinian territories, appropriating resources and subjecting Palestinians to racial segregation and apartheid.
There was a clear reference to apartheid and racial segregation through Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). This is huge.
Article 3 of ICERD directly refers to states' obligation to condemn, but also to prevent, prohibit and eradicate those practices. This gives states several domestic legal tools to pressure Israel into compliance.
In their separate opinions, Judge Nawaf Salam and Judge Dire Tladi confirmed this designation. Judge Tladi, who has a firsthand experience with apartheid, drew parallels to South Africa's apartheid.
The Court also said that the Oslo Accords cannot be cited or used to abridge Palestinian rights or to detract from Israel's obligations.
The ruling cited Article 47 of Geneva Convention IV, in which "protected persons who are in occupied territory shall not be deprived… of the benefits of the present Convention by … any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory."
The separate opinions on the Court's ruling, made by different judges, were sometimes even stronger. Judge Salam, in his separate opinion, said that the violation of the Palestinian right to self-determination dates back to 1948, the year of the Nakba and establishment of Israel, and not only 1967.
To my knowledge, this is the first judicial recognition of the 1948 Nakba, albeit without using the term, on that judicial level. Judge Abdulqawi Yusuf and Judge Xue Hanqin went on in their separate opinions to cite colonial rule, and not just occupation.
Israel's occupation and self-defence
Declaring an occupation illegal means that maintaining it or any of its manifestations should be considered acts of aggression. This has direct consequences on Israel's claim to self-defence.
Israel can no longer claim that right against attacks emanating from a territory it occupies, including Gaza. If a state illegally occupies a territory, it is already in a proactive act of hostility, as the initiator of hostilities, and hence it has no claim for self-defence.
Many would rightly argue that Israel never had a legal right to self-defence against attacks from an occupied territory, regardless of the status of this occupation. Either way, this debate should now be settled once and for all.
Negotiations and the Oslo Accords
The Court spoke further about the Oslo Accords, which have been deliberately misused by Israel to divert attention from its violations, and to question Palestine's capacity to join the UN or file a request before the International Criminal Court (ICC).
The ICJ's ruling emphasised that the Oslo Accords, preliminary agreements between the PLO and Israel in 1990s, cannot derogate from Palestinian rights or detract from Israel's obligations. This should be clearly heard by the government of the United Kingdom, which challenged the jurisdiction of the ICC on the basis of Oslo.
The ICC itself should take note of that and deny the UK, or any other party, from objecting to its jurisdiction on that basis.
On the question of future negotiations, assuming they are still plausible, declaring the occupation unlawful means occupation or its manifestations, such as settlements, can no longer be on the table of negotiations.
Legally established rights cannot be subject to political calculations. The start of any negotiations should be based on ending the occupation before talking about practical steps.
Hence, its consequences such as the settlements are to be terminated and dismantled completely, including in East Jerusalem.
Apartheid and colonialism
On the question of apartheid, those who have questioned the designation of Israel as an apartheid state or its practices as such have more homework to do to justify why they refuse to designate Israel as such.
After the many reports from the UN and leading international, Palestinian and Israeli human rights groups, rigorously establishing this designation, many voices, especially from within the European Union and North America, offered lip service to shield Israel and advanced a definition of antisemitism, reportedly requested by Israel, that criminalises associating Israel with Apartheid. Now they have to explain themselves in light of a ruling from the world's top court.
Finally, the Court, while not using this terminology in the main text of the ruling, has made it clear based on the reasoning and conclusions that Israel is practising "settler-colonialism". This was in fact clearly stated in the separate opinions of Judges Xue and Yusuf.
Turning the ink into action
"Justice for Palestine won't come from The Hague" is a statement frequently made by Palestinians, and rightly so. Let's not forget how much sacrifice it took for Palestinians to simply get an authoritative designation of their decades-long suffering. For the Court, this ruling was written by ink. For the Palestinians, it was written by their blood.
This ruling, however, offers a chance not only to Palestinians but to the international legal regime at large. At a time when the legitimacy of world institutions has been radically collapsing, especially in the global south, the ICJ did something right for Palestinians and international law.
For this ink to mean something, and for international institutions to breathe more life into their futures, this ruling must be upheld.
To call a spade a spade, the majority of the international community would consider this path. But it's a group of Israel's allies, mainly in the West, who would be the main hurdle. What happens next may define the legitimacy and future of international institutions.
Hassan Ben Imran is the head of the Legal Action Department and a member of the Governing Council of Law for Palestine. He is also a PhD researcher at the University of Galway's Irish Centre for Human Rights in Ireland.
Disclaimer: The views expressed by the author do not necessarily reflect the opinions, viewpoints and editorial policies of TRT Afrika.
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