Statement of the Revolutionary Communist International Tendency (RCIT), jointly issued by the Internationalist Socialist League (RCIT Section in Israel/Occupied Palestine) and the International Bureau of the RCIT, 22.07.2024 (plus a legal summary with commentary by Yossi Schwartz), https://the-isleague.com/ and www.thecommunists.net

 

 

 

1.           On 19 July 2024, the International Court of Justice (ICJ) has issued a document called “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem”. It deals with the question of legitimacy resp. illegitimacy of Israel’s occupation of those Palestinian territories which it had conquered in the 1967 war (West Bank, Gaza and East Jerusalem). This ICJ ruling has its origin in a resolution of the UN General Assembly from December 2022, i.e. before the beginning of Israel’s genocidal war in Gaza since 7 October last year. (For a summary of this document with commentary by Yossi Schwartz see the Appendix below.)

 

2.           While the document is, strictly speaking, only an “advisory opinion“ and has, in itself, no legal significance, it has profound political consequences. Basically, the ICJ arrives at the conclusion that Israel’s policy in West Bank, Gaza and East Jerusalem is “in breach of international law”, “that the prolonged character of Israel’s unlawful policies and practices aggravates their violation of the right of the Palestinian people to self-determination” and that the UN is “required to ensure an end to Israel’s illegal presence in the Occupied Palestinian Territory.” The document denounces the existence of Jewish settlements in the Westbank as well as Israel’s appropriation of natural resources in these areas.

 

3.           Importantly, particularly in the context of the current Gaza War, the ICJ considers Israel as an occupying power of the Strip despite the withdrawal of its army and the removal of its settlements in 2005. “The Court notes that to determine whether a territory remains occupied under international law, the decisive criterion is not whether the occupying Power retains its physical military presence in the territory at all times but whether its authority has been established and can be exercised. Based on the information before it, the Court considers that Israel remained capable of exercising and continued to exercise certain critical elements of authority over the Gaza Strip, including control of the land, sea, and air borders, restrictions on the movement of people and goods, collection of import and export taxes, and military control over the buffer zone, despite the withdrawal of its military presence in 2005. This is even more so since 7 October 2023.”

 

4.           It is also worth noting that the ICJ ruling says: “A number of participants (i.e. judges of the ICJ, Ed.) have argued that Israel’s policies and practices in the Occupied Palestinian Territory amount to segregation or apartheid, in breach of Article 3 of CERD.” These participants include Nawaf Salam, the President of the ICJ, as he expressed in a separate declaration attached to the ruling.

 

5.           The ICJ ruling is a highly welcome political development. Naturally, as Marxists we have no illusions about the character of this institutions or about international law as such. The ICJ is a court created by an imperialist institution – the United Nations – in which five Great Powers exercise veto rights. In itself, the ICJ has no power to implement its decisions. Furthermore, we are aware that international law is basically a reflection of the interests of the ruling class – most importantly the imperialist powers – as well as of the relations of forces between states.

 

6.           Nevertheless, the ICJ – like other bourgeois institutions – doesn’t exist in a vacuum but can reflect, under certain circumstances and in a distorted way, the pressure of the class struggle as well as political shifts between states. There exists an unprecedented global pro-Palestine solidarity movement since the 7 October which mobilises millions of people – including in Western Europe and Northern America, Israel’s closest allies. This – in combination with the ongoing heroic struggle of the Palestinian resistance and its regional allies against the Zionist monster – has created huge pressure on Israel and its imperialist backers and provoked a massive shift in world public opinion. These developments have accelerated the decline of U.S. imperialism – the long-time global hegemon. The ICJ ruling, which hits one of America’s most important allies, reflects these changes.

 

7.           While we do not share any illusions in the ICJ or “international law”, we are fully aware that the ICJ ruling can be a highly useful document in the campaigning work of the global pro-Palestine solidarity movement. It is well known that the ruling class – in particular in Western imperialist countries – has justified its foreign policy since many decades with references to “international law” and a “rules-based order”. Hence, a ruling by the ICJ – an institution representing “international law” more than anything else – has a particularly high “moral authority” in Western countries and the global public opinion. As such, the ICJ ruling can and should be utilised in mass campaigns against the genocidal war of the Zionist monster and its Western backers.

 

8.           The Revolutionary Communist International Tendency (RCIT) and its section in Israel/Occupied Palestine – the Internationalist Socialist League – reiterate their position of unconditional support for the Palestinian resistance. We fully support the struggle to expel the occupiers from Gaza, West Bank, and East Jerusalem. However, we strongly oppose any form of “two-state solution” which would be nothing but a trap for the Palestinian people. Such a small and impoverished Palestinian statelet would be completely dependent and subjugated to Israel – a rich settler and Apartheid state and also a regional imperialist power. The only way forward is the revolutionary destruction of the Zionist state and the creation of a free and red Palestine from the River to the Sea. We call on the global pro-Palestine solidarity movement to double their efforts, to move from mass demonstrations to boycott and strike activities and to win the organisations of the workers and popular movement for such a policy.

 

 

 

Legal Summary of the ICJ Ruling with Commentary

 

by Yossi Schwartz, Internationalist Socialist League (RCIT Section in Israel/Occupied Palestine), 22 July 2024

 

 

 

A. SUBMISSION

 

 

 

On 19 January 2023, the Secretary-General of the United Nations officially communicated to the International Court of Justice the decision taken by the General Assembly to submit the questions set forth in resolution 77/247 adopted on 30 December 2022. The General Assembly put two questions to the Court. These questions relate first to the legal consequences arising from specific policies and practices of Israel as an occupying Power in a situation of belligerent occupation since 1967. Secondly, they relate to how such policies and practices affect the legal status of the occupation in light of specific rules and principles of international law and to the legal consequences that arise from this status.

 

 

 

B. THE COURT JURISDICTION

 

 

 

The Court ruled that it has the Jurisdiction to give its opinion and rejected the argument that the occupation is only a matter concerning Israel and the Palestinians. The involvement of the United Nations organs, and before that, the League of Nations, in questions relating to Palestine, dates back to the Mandate System. Since resolution 181 (II) concerning the partition of Palestine was adopted by the General Assembly in 1947, the Palestinian question has been before the General Assembly, which has considered, debated, and adopted resolutions almost annually. Thus, this issue is of particular interest and concern to the United Nations. The Court, therefore, considers that the issues raised by the request are part of the Palestinian question, including the General Assembly’s role relating thereto, and the ICJ has the jurisdiction.

 

The Court rejects the argument that it should not interfere in the negotiation process. The Court notes that whether the Court's opinion would have an adverse effect on the negotiation framework is a matter of conjecture on which the Court should not speculate. The Court has sufficient information to enable it to give an advisory opinion. It rejects the argument that the Court should decline to give an opinion because it lacks sufficient information and would have to embark on a fact-finding mission covering a period of decades in order to answer the questions put to it by the General Assembly.

 

 

 

C. GENERAL CONTEXT (PARAS. 51-71)

 

 

 

The Court recalls the general context. Having been part of the Ottoman Empire, at the end of the First World War, Palestine was placed under a Mandate entrusted to Great Britain by the League of Nations. In 1947, the United Kingdom announced its intention to complete its evacuation of the mandated territory by 1 August 1948, advancing to 15 May 1948. In the meantime, on 29 November 1947, the General Assembly adopted resolution 181 (II) on the future government of Palestine, which recommends to the United Kingdom . . . and to all other Members of the United Nations the adoption and implementation . . . of the Plan of Partition” of the territory, as outlined in the resolution, between two independent States, one Arab, the other Jewish, as well as the creation of a particular international régime for the City of Jerusalem. While the Jewish population accepted the Plan of Partition, the Arab population of Palestine and the Arab States rejected this plan, contending, among other things, that it was unbalanced. An armed conflict then broke out between Israel and several Arab States, and the Plan of Partition was not implemented

 

On 29 November 1948, referring to resolution 181 (II), Israel applied for admission to membership of the United Nations. On 11 May 1949, when it admitted Israel as a Member State of the United Nations, the General Assembly recalled resolution 181 (II) and took note of Israel’s declarations “in respect of the implementation of the said resolution” (General Assembly resolution 273 (III)).

 

In the debates about UN resolution 273 in 1949 about Israel's admittance to the UN, Israel's UN representative Abba Eban promised that the state would honor its obligations under Resolution 181 and Resolution 194. El Salvador's representative asked: "I wish to ask the representative of Israel whether he is authorized by his Government to assure the Committee that the State of Israel will do everything in its power to co-operate with the United Nations in order to put into effect (a) the General Assembly resolution of 29 November 1947 on the internationalization of the City of Jerusalem and the surrounding area [resolution 181] and (b) the General Assembly resolution of 11 December 1948 on the repatriation of the refugees [resolution 194].” The writer (Y.S.) notes that Abba Eban fibbed as Israel never intended to give the Palestinians any piece of land the Zionists occupied nor to allow the Palestinian refugees to return.

 

In 1967, an armed conflict (also known as the “Six-Day War”) broke out between Israel and neighboring countries Egypt, Syria, and Jordan. By the time hostilities had ceased, Israeli forces occupied all the territories of Palestine under the British Mandate beyond the Green Line.

 

On 22 November 1967, the Security Council unanimously adopted resolution 242 (1967), which “emphasizes the inadmissibility of the acquisition of territory by war” and called for the “withdrawal of Israel's armed forces from territories occupied in the recent conflict.”(Why did the UN not decide to force Israel to the borders of the partition plan, and why did the Partition plan give the Zionist settlers who were only 1/3 of the population and owned 6% of the land of Palestine, a state on 55% of Palestine can be answered only by understanding the nature of the UN as an imperialist tool; Y.S.)

 

From 1967 onwards, Israel started to establish or support settlements in the territories it occupied and took several measures aimed at changing the status of the City of Jerusalem. The Security Council, after recalling on several occasions “the principle that acquisition of territory by military conquest is inadmissible,” condemned those measures and, by resolution 298 (1971) of 25 September 1971, confirmed that:

 

“all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, including expropriation of land and properties, transfer of populations, and legislation aimed at the incorporation of the occupied section, are invalid and cannot change that status.“

 

In October 1973, another armed conflict broke out between Egypt, Syria, and Israel. By resolution 338 of 22 October 1973, the Security Council called upon the parties to the conflict to terminate all military activity and to start immediately after the cease-fire the implementation of Security Council resolution 242 (1967) in all of its parts.

 

On 14 October 1974, the General Assembly recognized the Palestinian Liberation Organization (PLO) as the representative of the Palestinian people by resolution 3210 (XXIX). By resolution 3236 (XXIX) of 22 November 1974, it recognized “that the Palestinian people is entitled to self-determination in accordance with the Charter of the United Nations.”

 

On 10 November 1975, the UN General Assembly Resolution adopted resolution 3379 which stated that "Zionism is a form of racism and racial discrimination."

 

On 17 September 1978, Israel and Egypt signed the “Camp David Accords,” which led to a Peace Treaty between the two countries the following year. Later, Israel and Jordan signed a peace treaty on 26 October 1994. That treaty fixed the boundary between the two States according to the lines set under the Mandate for Palestine.

 

On 15 November 1988, referring to resolution 181 (II), “which partitioned Palestine into an Arab and a Jewish State,” the PLO “proclaim[ed] the establishment of the State of Palestine.”

 

In 1993 and 1995, Israel and the PLO signed the Oslo I and Oslo II Accords. In an exchange of letters on 9 September 1993, the PLO recognized Israel’s right to exist in peace and security, and Israel recognized the PLO as the legitimate representative of the Palestinian people. (Why the PLO recognized Israel on the borders of June 5, 1967, only the theory and strategy of the Permanent Revolutions can answer; Y.S.)

 

 

 

D. ISRAEL'S ACTIONS IN NEGATION OF THE INTERNATIONAL LAW

 

 

 

Following an increase in acts of violence from the West Bank, in the early 2000s Israel began building a “continuous fence” (hereinafter the “wall”) largely in the West Bank and East Jerusalem. A plan of this type was approved for the first time by the Israeli Government in July 2001 and the first part of the relevant works was declared completed on 31 July 2003. Notwithstanding the Court’s opinion in 2004, finding “[t]he construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime [to be] contrary to international law”, the construction of the wall continued, as well as the expansion of settlements in the Occupied Palestinian Territory.

 

Reports indicate that, by 2005, settlers who had been residing in 21 settlements in the Gaza Strip and in four settlements in the northern West Bank, were evacuated under an Israeli “Disengagement Plan”. By 2023, approximately 465,000 settlers resided in the West Bank, spread across around 300 settlements and outposts, while some 230,000 settlers resided in East Jerusalem. The residents of settlements and “outposts” in the Occupied Palestinian Territory (“settlers”) are predominantly Israelis, as well as non-Israeli Jews who qualify for Israeli nationality under Israeli legislation.

 

 

 

E. SCOPE AND MEANING OF THE QUESTIONS POSED BY THE GENERAL ASSEMBLY (PARAS 72-83)

 

 

 

The Court considers that question (a) requires an assessment of Israel's conformity with international law of those policies and practices identified in the request. In terms of its territorial scope, question (a) refers to “the Palestinian territory occupied since 1967”, which encompasses the West Bank, East Jerusalem, and the Gaza Strip. The Court notes that the various United Nations organs and bodies frequently make specific reference to the different parts of the Occupied Palestinian Territory. The Court also does so in the present Advisory Opinion, as appropriate. However, the Court recalls that, from a legal standpoint, the Occupied Palestinian Territory constitutes a single territorial unit, the unity. The Court further observes that the question mentions measures about “the Holy City of Jerusalem.

 

Question (b) has two parts. The first part requests the Court to assess how the policies and practices of Israel identified by the General Assembly “affect the legal status of the occupation.” The Court observes that using the verb “effect” indicates that such policies and practices may change the “legal status.” However, the scope of the first part of the question depends upon the meaning of the expression “legal status of the occupation” in the overall context of question (b). In the present context, the Court is of the view that the first part of the question (b) calls on the Court to ascertain how Israel’s policies and practices affect the legal status of the occupation and, thereby the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory.

 

The Court observes that both question (a) and the second part of the question (b) call upon it to determine the legal consequences arising, respectively, from Israel’s policies and practices and its continued presence as an occupying Power in the Occupied Palestinian Territory. If and to the extent that the Court finds that any of Israel’s policies and practices, or its continued presence, in the Occupied Palestinian Territory, are contrary to international law, the Court indicates that it will examine the legal consequences flowing from such findings for Israel, for other States and the United Nations.

 

 

 

F. APPLICABLE LAW (PARAS. 84-102)

 

 

 

The Court notes at the outset that the applicability of specific rules of international law in the territory concerned depends on the status of that territory under international law. The Court first seeks to ascertain the status of the Occupied Palestinian Territory under international law, and then determines which rules of international law are relevant for answering the questions posed to it by the General Assembly.

 

The questions posed by the General Assembly are premised on the assumption that the Occupied Palestinian Territory is occupied by Israel. In its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court set out the circumstances under which a state of occupation is established. The Court observed that, in the 1967 armed conflict, Israel occupied the territories situated between the Green Line and the former eastern boundary of Palestine under the British Mandate, namely the West Bank and East Jerusalem. The Court affirmed that subsequent events had not altered the status of the territories in question or Israel’s status as occupying Power.

 

In its Wall Advisory Opinion, the Court did not express a view as to the legal status of the Gaza Strip, as the construction of the wall did not affect it. The Gaza Strip is an integral part of the territory that was occupied by Israel in 1967. Following the 1967-armed conflict, Israel, as the occupying Power, placed the Gaza Strip under its effective control. However, in 2004, Israel announced a “Disengagement Plan”. According to that plan, Israel was to withdraw its military presence from the Gaza Strip and several areas in the northern part of the West Bank. By 2005, Israel had completed the withdrawal of its army and the removal of the settlements in the Gaza Strip.

 

The Court notes that to determine whether a territory remains occupied under international law, the decisive criterion is not whether the occupying Power retains its physical military presence in the territory at all times but whether its authority has been established and can be exercised.

 

Based on the information before it, the Court considers that Israel remained capable of exercising and continued to exercise certain critical elements of authority over the Gaza Strip, including control of the land, sea, and air borders, restrictions on the movement of people and goods, collection of import and export taxes, and military control over the buffer zone, despite the withdrawal of its military presence in 2005. This is even more so since 7 October 2023.

 

In light of the above, the Court is of the view that Israel’s withdrawal from the Gaza Strip has not entirely released it of its obligations under the law of occupation. Israel’s obligations have remained commensurate with the degree of its effective control over the Gaza Strip.

 

 

 

G. ISRAEL’S POLICIES AND PRACTICES IN THE OCCUPIED PALESTINIAN TERRITORY (PARAS. 103-243)

 

 

 

The Court then assesses the conformity of Israel’s policies and practices in the Occupied Palestinian Territory, as identified in question (a), with its obligations under international law. In particular, the Court’s analysis examines, in turn, the questions of the prolonged occupation, Israel’s policy of settlement, the annexation of the Palestinian territory occupied since 1967, and its adoption of related legislation and measures that are allegedly discriminatory. The Court appraises whether and, if so, how Israel’s policies and practices affect the right of the Palestinian people to self-determination after those other questions are considered.

 

The Court notes that Israel’s occupation has lasted for more than 57 years. To answer this aspect of the question, the Court must turn to the relationship between Israel, as the occupying Power, and the protected population of the occupied territory, which is governed by the law of occupation.

 

The fact that an occupation is prolonged does not change its legal status under international humanitarian law. Although premised on the temporary character of the occupation, the law of occupation does not set temporal limits that would, as such, alter the legal status of the occupation. Instead, the legality of the occupying Power’s presence in the occupied territory must be assessed in light of other rules. In particular, occupation consists of the exercise of a state of effective control in foreign territory. To be permissible, therefore, such exercise of effective control must always be consistent with the rules concerning the prohibition of the threat or use of force, including the banning of territorial acquisition resulting from the threat or use of force and the right to self-determination. Therefore, the prolonged occupation may have a bearing on the justification under international law for the occupying Power’s continued presence in the occupied territory.

 

Question (a) posed by the General Assembly enquires in part about the legal consequences of Israel’s settlement policy. The Court considers, in this regard, that the distinction that is sometimes made between “settlements” and “outposts” is immaterial to ascertain whether the communities in question form part of Israel’s settlement policy. What matters is whether they are established or maintained with Israel’s support.

 

The Court further notes that, between 1967 and 2005, Israel’s settlement policy was carried out in the West Bank, East Jerusalem, and the Gaza Strip. Since the removal of Israel’s settlements from the Gaza Strip in 2005, Israel’s settlement policy has continued in the West Bank and East Jerusalem; the Court, therefore, limits its analysis to Israel’s ongoing settlement policy in the West Bank and East Jerusalem. At the same time, the Court observes that Israel’s settlement policy carried out in the Gaza Strip until 2005 was not substantially different from the policy that continues in the West Bank and East Jerusalem today.

 

In its Wall Advisory Opinion, the Court found that Israel’s settlement policy was in breach of the sixth paragraph of Article 49 of the Fourth Geneva Convention, which provides that “[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”.

 

In the Court’s view, there is nothing in the terms or the context of the provision, or in the object and purpose or the drafting history of the Fourth Geneva Convention, to suggest that that provision prohibits only the forcible transfer of parts of the occupying Power’s civilian population into the occupied territory. In the present case, there is extensive evidence of Israel’s policy of providing incentives for the relocation of Israeli individuals and businesses into the West Bank, as well as for its industrial and agricultural development by settlers. There is also evidence that Israel regularly legalizes outposts that have been established in contravention of domestic Israeli legislation and that Israel’s construction of settlements is accompanied by specially designed civilian infrastructure in the West Bank and East Jerusalem, which integrates the settlements into the territory of Israel.

 

In light of the above, the Court considers that the transfer by Israel of settlers to the West Bank and East Jerusalem, as well as Israel’s maintenance of their presence, is contrary to the sixth paragraph of Article 49 of the Fourth Geneva Convention.

 

The Court further notes that the expansion of Israel’s settlements in the West Bank and East Jerusalem is based on the confiscation or requisitioning of large areas of land.

 

Observing that, in the present case, the public property confiscated or requisitioned for the development of Israeli settlements benefits the civilian population of settlers, to the detriment of the local Palestinian population, the Court concludes that Israel’s land policies are not in conformity with Articles 46, 52 and 55 of the Hague Regulations.

 

The Court next turns to the question of the exploitation of natural resources. It recalls that, under the principle of customary international law contained in Article 55 of the Hague Regulations, the occupying Power shall be regarded only as administrator and usufructuary of natural resources in the occupied territory, including but not limited to forests and agricultural estates, and it shall safeguard the capital of these resources. Therefore, the use of natural resources by the occupying power must not exceed what is necessary for the purposes of the occupation. In this connection, the Court observes that the occupying Power has the continuing duty to ensure that the local population has an adequate supply of foodstuffs, including water. Moreover, the use of natural resources in the occupied territory must be sustainable, and it must avoid environmental harm. Based on the evidence before it, the Court considers that Israel’s use of the natural resources in the Occupied Palestinian Territory is inconsistent with its obligations under international law.

 

The Court recalls that, under Article 43 of the Hague Regulations, the occupying Power must, in principle, respect the law in force in the occupied territory unless prevented. Based on the evidence before it, the Court observes that Israel has expanded its sphere of legal regulation in the West Bank. It notes, in particular, that Israel has, to a large degree, substituted its military law for the local law in force in the Occupied Palestinian. Moreover, regional and local councils of settlers have assumed de facto jurisdiction over the settlements in the West Bank. In East Jerusalem, domestic Israeli law has been applied since the beginning of the occupation in 1967, and Israel treats East Jerusalem as its own national territory, where Israeli law is applied in full and to the exclusion of any other domestic legal system.

 

 

 

H. THE QUESTION OF SELF-DETERMINATION (PARAS. 230-243)

 

 

 

Having found that Israel’s settlement policy, its acts of annexation, and its related discriminatory legislation and measures are in breach of international law, the Court turns to the aspect of question (a) that enquires as to the effects of Israel’s policies and practices on the exercise of the Palestinian people’s right to self-determination.

 

In light of its analysis, the Court is of the view that the prolonged character of Israel’s unlawful policies and practices aggravates their violation of the right of the Palestinian people to self-determination.

 

With regard to the right to self-determination, the Court considers that, while it is for the General Assembly and the Security Council to pronounce on the modalities required to ensure an end to Israel’s illegal presence in the Occupied Palestinian Territory and the full realization of the right of the Palestinian people to self-determination, all States must co-operate with the United Nations to put those modalities into effect.

 

(If the PA brings the ruling to the UNSC to enforce the ruling, most likely the US will use its power of veto and be in violation of international law and the UN. This will further expose the nature of the US and the UN; Y.S.)