As for legal rights, states and the EU are entitled to publicly characterise the existence of Israel’s presence in the occupied Palestinian territory as illegal, and publicly criticise it as such, writes Ralph Wilde. [GETTY]
Six months ago today, on 19 July 2024, the UN International Court of Justice in the Hague (ICJ) issued one of the most significant judicial decisions ever rendered in international law. What Palestinian human rights NGO Al Haq characterised as the “historic” Advisory Opinion on the question of the legality of Israel’s occupation of the Palestinian Gaza Strip and West Bank, including East Jerusalem.
Although not itself a legally-binding judgment, it is an authoritative determination of what international law—which is binding—means. Its ruling was affirmed and supplemented by the UN General Assembly (UNGA) in a resolution of 13 September 2024. I was privileged to serve, as senior legal counsel and advocate, the League of Arab States in the case, presenting arguments based on my academic research.
The ICJ and UNGA adopted the arguments I made, leading to a profound shift of approach to that hitherto taken by most Western states, the EU, and international human rights NGOs. In what the editorial board of the Financial Times described as a “damning verdict,” the Court ruled that the Israeli presence is illegal in not only its conduct, but also its very existence. It is a violation of the legal right of self-determination of the Palestinian people, and the legal prohibition of annexation through the use of force. As a result, it must end as rapidly as possible.
Back in July, the FT editorial board stated that “the ICJ’s ruling must force a re-calibration of the west’s policies towards Israel’s violations of international law in occupied territory.” Six months on, many Western states and the EU continue to behave seemingly in denial about the existential illegality of the occupation, and what this means for their own relations with Israel.
As I explain in a recent expert legal opinion for the Palestinian human rights NGO Al Haq Europe, the fundamental character of the legal rules violated by Israel means that all states and the EU bear special legal obligations to suppress these violations, and have special legal rights to complain about them.
As for suppression obligations, states and the EU are legally required to: take positive steps, individually and collectively, to bring Israel’s illegal presence in the occupied Palestinian territory to an end; not recognise this illegal presence; and not aid or assist it.
They must also take action against non-state actors, including their own nationals, and corporations and universities based in their jurisdictions, to prevent involvement in/with Israel that itself involves recognition of and/or aid/assistance to the unlawful Israeli presence in the occupied Palestinian territory.
The links between the Israeli presence in the occupied Palestinian territory, on the one hand, and Israel proper, on the other, in terms of the economy, society, military, natural resources, culture, education etc, are multifaceted, and inextricable. Consequently, implementing the suppression obligations requires states and the EU to address Israel as a general matter.
It is impossible to disaggregate relations with the Israeli state and Israeli public and private actors to identify discrete matters where recognition and/or aid or assistance will not end up, one way or another, linked to the Israeli presence in the Palestinian territory. A complete, general embargo of Israel is therefore required.
This means the EU Association Agreement with Israel (covering trade, investment, and scientific, technological, economic, audiovisual, cultural, informational, communication and social co-operation) needs to be terminated.
As for legal rights, states and the EU are entitled to publicly characterise the existence of Israel’s presence in the occupied Palestinian territory as illegal, and publicly criticise it as such. This includes a special ‘public interest’ right to bring new international legal cases, and participate in existing legal cases, against Israel, to complain about this illegality, invoking the global community value served by bringing violations of this type to an end. Likewise, cases can be brought against other states for failing to discharge their duties to suppress Israel’s violations, for example by continuing to provide arms to Israel.
Individuals and NGOs can also bring claims against such states. And claims against non-state actors such as corporations and universities that collaborate with Israeli public and private entities in a way that ends up recognising and/or aiding or assisting the illegal occupation.
The time is long overdue for all states and the EU to face up to the exceptional character of Israel’s violations of fundamental legal obligations in maintaining its presence in the occupied Palestinian territory. And the exceptional consequential legal duty they have to suppress this, and legal right they have to complain about it.
Legally, they are not disinterested bystanders, free to pick and choose whether and to what extent they address the illegality of Israel’s presence. They are required to act, and, in doing so, must be comprehensive in what they address.
Ralph Wilde is Professor of International Law at UCL, University of London.
The writer acted as Senior Counsel and Advocate to the League of Arab States in the case discussed, and is writing in his personal capacity only.
Have questions or comments? Email us at: [email protected]
Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.
