Written statement of The Gambia

INTERNATIONAL COURT OF JUSTICE
________________________________________________________
LEGAL CONSEQUENCES ARISING FROM THE POLICIES
AND PRACTICES OF ISRAEL IN THE OCCUPIED
PALESTINIAN TERRITORY, INCLUDING EAST
JERUSALEM
(REQUEST FOR ADVISORY OPINION)
WRITTEN STATEMENT OF
THE REPUBLIC OF THE GAMBIA
25 JULY 2023
TABLE OF CONTENTS
ISRAEL’S OCCUPATION IS ILLEGAL BECAUSE IT VIOLATES THE
RIGHT OF THE PALESTINIAN PEOPLE TO SELF-DETERMINATION .......... 2
ISRAEL’S OCCUPATION IS ILLEGAL BECAUSE IT CONSTITUTES A
REGIME OF APARTHEID ....................................................................... 4
ISRAEL’S OCCUPATION IS ILLEGAL BECAUSE IT VIOLATES THE JUS
AD BELLUM ......................................................................................... 8
THE OCCUPATION MUST BE BROUGHT TO AN END IMMEDIATELY
.......................................................................................................... 15
1
In accordance with the Court’s Order of 3 February 2023, the Republic of
The Gambia (“The Gambia”) submits this written statement in the advisory
opinion proceedings concerning the Legal Consequences Arising from the Policies
and Practices of Israel in the Occupied Palestinian Territory, including East
Jerusalem.
Israel has occupied the Occupied Palestinian Territories (the “OPT”),
consisting of the West Bank, including East Jerusalem, and Gaza, for over 56 years.
For decades, the various bodies of the United Nations have passed myriad
resolutions calling on Israel to end its occupation. Numerous UN mandate holders
have investigated the situation, and all have come to the same conclusion: that
Israel’s occupation of the OPT entails egregious violations of international law,
including peremptory norms thereof. The Court itself, in its advisory opinion
concerning the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (the “Wall Advisory Opinion”), found that Israel’s conduct
in that context violated several of its obligations under international law.1
In the almost twenty years since the Wall Advisory Opinion, the occupation
has only deepened. Israel has annexed more territory and expanded its illegal
settlements. The OPT has become increasingly fragmented. An institutionalized
system of discrimination, with dual legal and political systems for Israeli settlers
and Palestinians—otherwise known as apartheid—has become entrenched.2 The
Palestinian people continue to be deprived of their right to self-determination,
indefinitely. And all the while, there is no justification under international law for
1 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 136 (hereinafter “Wall Advisory Opinion”), para. 137.
2 Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), paras. 51-56.
2
Israel’s continued use of force to maintain the occupation—if there ever was one
to begin with.
A clear decision from the Court regarding the illegality of the occupation
will help galvanize international action to protect the rights of the Palestinian
people. The Gambia’s submission focuses on the second question presented by the
General Assembly to the Court, namely regarding the legal status of the occupation
and the legal consequences that arise therefrom for all States and the United
Nations. As discussed below, Israel’s indefinite occupation of the OPT is illegal
because it violates the right to self-determination (I), constitutes a regime of
apartheid (II), and violates the jus ad bellum (III). Most important among the legal
consequences that arise from the fact that the occupation is illegal is that it must be
brought to an end immediately (IV).
ISRAEL’S OCCUPATION IS ILLEGAL BECAUSE IT VIOLATES THE RIGHT OF
THE PALESTINIAN PEOPLE TO SELF-DETERMINATION
Israel’s occupation violates the right of the Palestinian people to selfdetermination
and is therefore illegal. The erga omnes right to self-determination
is “one of the essential principles of contemporary international law”,3 a jus cogens
norm enshrined in the UN Charter.4 The obligation to respect the right to selfdetermination
is also directly applicable to Israel by virtue of its ratification of the
International Covenant on Civil and Political Rights and the International Covenant
3 Case Concerning East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, para.
29.
4 UN Charter, art. 1(2). ILC, Draft conclusions on identification and legal consequences of
peremptory norms of general international law (jus cogens), with commentaries, UN Doc. A/77/10
(2022), Conclusion 23 (Annex (h)).
3
on Economic, Social and Cultural Rights.5 This obligation extends to the entirety
of the OPT.6
The Gambia also notes in this regard the UN Declaration on the Granting
of Independence to Colonial Countries and Peoples, which declared that “[t]he
subjection of peoples to alien subjugation, domination and exploitation constitutes
a denial of fundamental human rights, is contrary to the Charter of the United
Nations and is an impediment to the promotion of world peace and co-operation”.7
There is no end in sight to Israel’s occupation. Its prolonged character
indefinitely infringes on the right to self-determination of the Palestinian people.8
As explained by the UN Special Rapporteur on the situation of human rights in the
Palestinian territories occupied since 1967:
“Since 1967, Israel has wilfully and intentionally
violated the self-determination of the Palestinians in
the occupied Palestinian territory, by preventing
their exercise of territorial sovereignty over natural
resources, suppressing their cultural identity and
repressing Palestinian political character and
resistance. In short, Israeli endeavours in the
occupied Palestinian territory are indistinguishable
from settler-colonialism; by seizing, annexing,
fragmenting, and transferring its civilian population
to, the occupied territory, Israeli occupation violates
Palestinian territorial sovereignty; by extracting and
5 See International Covenant on Civil and Political Rights (16 Dec. 1966), 999 U.N.T.S. 171, art. 1;
International Covenant on Economic, Social and Cultural Rights (16 Dec. 1966), 993 U.N.T.S. 3,
art. 1.
6 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, I.C.J. Reports 2019, p. 95 (hereinafter, “Chagos Advisory Opinion”), para. 160.
See also UNGA, Resolution 67/19, Status of Palestine in the United Nations, UN Doc. A/RES/67/19
(29 Nov. 2012), para. 1.
7 UNGA, Resolution 1514 (XV), Declaration on the granting of independence to colonial countries
and peoples, UN Doc. A/RES/1514(XV) (14 Dec. 1960), para. 1.
8 UNGA, Report of Special Rapporteur S. M. Lynk on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/72/43106 (23 Oct. 2017), paras. 31-32.
4
exploiting Palestinians’ resources in order to
generate profits benefiting third parties, including
“settlers”, it violates Palestinians’ sovereignty over
natural resources needed to develop an independent
economy; by erasing or appropriating symbols
expressing Palestinian identity, the occupation
endangers the cultural existence of the Palestinian
people; by repressing Palestinian political activity,
advocacy and activism, the occupation violates
Palestinians’ ability to organize themselves as a
people, free from alien domination and control.”9
As a peremptory norm of international law, no derogation is permitted from
respecting the right of the Palestinian people to self-determination. As such,
Israel’s occupation is illegal and must expeditiously be brought to an end.
ISRAEL’S OCCUPATION IS ILLEGAL BECAUSE IT CONSTITUTES A REGIME OF
APARTHEID
Israel’s occupation of the OPT is also illegal because it amounts to a regime
of apartheid. Just like the right to self-determination, the prohibition of apartheid
is a peremptory norm of international law.10 This Court has described apartheid as
a “flagrant violation of the purposes and principles of the Charter”.11 Article 3 of
the International Convention on the Elimination of All Forms of Racial
Discrimination, to which both Israel and Palestine are parties, also prohibits
apartheid.12
9 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 73.
10 ILC, Peremptory norms of general international law (jus cogens): Texts of the draft conclusions
and Annex adopted by the Drafting Committee on second reading, UN Doc. A/CN.4/L.967 (11 May
2022), Conclusion 23 (Annex (e)).
11 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971, p. 16 (hereinafter, “Namibia Advisory Opinion”), paras. 129-131.
12 International Convention on the Elimination of All Forms of Racial Discrimination (21 Dec.
1965), 660 U.N.T.S. 195, art. 3.
5
As explained by the UN Special Rapporteur on the situation of human rights
in the Palestinian territories occupied since 1967, Israel’s occupation of the OPT is
an apartheid regime:
“First, an institutionalized regime of systematic
racial oppression and discrimination has been
established. Israeli Jews and Palestinian Arabs in
East Jerusalem and the West Bank live their lives
under a single regime that differentiates its
distribution of rights and benefits on the basis of
national and ethnic identity, and that ensures the
supremacy of one group over, and to the detriment
of, the other. … The differences in living conditions
and citizenship rights and benefits are stark, deeply
discriminatory and maintained through systematic
and institutionalized oppression.
[] Second, this system of alien rule has been
established with the intent to maintain the
domination of one racial-national-ethnic group over
another. Israeli political leaders, past and present,
have repeatedly stated that they intend to retain
control over all of the occupied territory in order to
enlarge the blocs of land for present and future
Jewish settlement while confining the Palestinians to
barricaded population reserves. This is a two-sided
coin: the plans for more Jewish settlers and larger
Jewish settlements on greater tracts of occupied land
cannot be accomplished without the expropriation of
more Palestinian property together with harsher and
more sophisticated methods of population control to
manage the inevitable resistance. Under this system,
the freedoms of one group are inextricably bound up
in the subjugation of the other.
[] Third, the imposition of this system of
institutionalized discrimination with the intent of
permanent domination has been built upon the
regular practice of inhumane and inhuman acts.
Arbitrary and extrajudicial killings. Torture. The
violent deaths of children. The denial of fundamental
6
human rights. A fundamentally flawed military court
system and the lack of criminal due process.
Arbitrary detention. Collective punishment. The
repetition of these acts over long periods of time, and
their endorsement by the Knesset and the Israeli
judicial system, indicate that they are not the result
of random and isolated acts but integral to the system
of rule by Israel.
[] This is apartheid. …With the eyes of the
international community wide open, Israel has
imposed upon Palestine an apartheid reality in a
post-apartheid world.”13
This is not just the view of a single UN mandate holder. There is a credible
international consensus that Israel’s occupation is apartheid. The Committee on the
Elimination of Racial Discrimination, for example, found as follows:
“As regards the specific situation in the Occupied
Palestinian Territory, the Committee remains
concerned (CERD/C/ISR/CO/14-16, para. 24) at the
consequences of policies and practices that amount
to segregation, such as the existence in the Occupied
Palestinian Territory of two entirely separate legal
systems and sets of institutions for Jewish
communities in illegal settlements on the one hand
and Palestinian populations living in Palestinian
towns and villages on the other hand. The
Committee is appalled at the hermetic character of
the separation of the two groups, who live on the
same territory but do not enjoy either equal use of
roads and infrastructure or equal access to basic
services, lands and water resources. Such separation
is materialized by the implementation of a complex
combination of movement restrictions consisting of
the Wall, the settlements, roadblocks, military
checkpoints, the obligation to use separate roads and
13 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), paras
53-56.
7
a permit regime that impacts the Palestinian
population negatively (art. 3).”14
Senior international leaders and former Israeli officials have come to the
same conclusion:
“Ban Ki-moon, the former Secretary-General of the
United Nations, wrote in 2021 that the intent of Israel
to maintain ‘structural domination and oppression of
the Palestinian people through indefinite occupation
… arguably constitutes apartheid’. Nobel Laureate
Desmond Tutu stated in 2014: ‘I know firsthand that
Israel has created an apartheid reality within its
borders and through its occupation.’ The Minister
for Foreign Affairs of South Africa, Naledi Pandor,
spoke in 2022 about her country’s ‘significant
dismay at the continued apartheid practices of Israel
against the long-suffering people of Palestine’.
Michael Ben-Yair, a former Attorney General of
Israel, said in 2022 that Israel had become ‘an
apartheid regime … a one state reality, with two
different peoples living with unequal rights’. Ami
Ayalon, the former Director of Shin Bet, wrote in his
memoir: ‘We’ve already created an apartheid
situation in Judea and Samaria, where we control the
Palestinians by force, denying them selfdetermination.’
Furthermore, two former Israeli
ambassadors to South Africa – Ilan Baruch and Alon
Liel – stated in 2021 that the systematic
discrimination of Israel ‘on the basis of nationality
and ethnicity’ now constituted apartheid.”15
14 CERD Committee, Concluding observations on the combined seventeenth to nineteenth reports
of Israel, UN Doc. CERD/C/ISR/CO/17-19 (27 Jan. 2020), para. 22.
15 Human Rights Council, Report of Special Rapporteur S. M. Lynk on the situation of human rights
in the Palestinian territories occupied since 1967, UN Doc. A/HRC/49/87 (12 Aug. 2022), paras
13.
8
The most credible human rights non-governmental organizations that report
on the situation in the OPT have also concluded that the occupation is an apartheid
regime.16
In remarks before the UN General Assembly in May 2021, The Gambia’s
Ambassador and Permanent Representative to the United Nations declared The
Gambia’s view that the occupation amounts to apartheid.17
As a regime of apartheid, Israel’s occupation of the OPT is illegal and must
urgently be brought to an end.
ISRAEL’S OCCUPATION IS ILLEGAL BECAUSE IT VIOLATES THE JUS AD
BELLUM
Israel’s 56-year occupation of the Palestinian Territory violates the laws on
the use of force—jus ad bellum—and is illegal for that reason as well.
16 Human Rights Watch, A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and
Persecution (2021), available at https://tinyurl.com/3s2vdjw9, p. 10; Amnesty International,
Israel’s Apartheid Against Palestinians: Cruel System Of Domination And Crime Against Humanity
(1 Feb. 2022), available at: https://tinyurl.com/bdfscyf2, p. 267; B’Tselem, A regime of Jewish
supremacy from the Jordan River to the Mediterranean Sea: This is apartheid (12 Jan. 2021),
available at: https://www.btselem.org/sites/default/files/publications/202101_this_is_apartheid_
eng.pdf; Al Haq, Israeli Apartheid: Tool of Zionist Settler Colonialism (29 Nov. 2022), p. 181
(endorsed by Addameer, Al Mezan, the Palestinian Centre for Human Rights, the Civic Coalition
for Palestinian Rights in Jerusalem, the Jerusalem Legal Aid and Human Rights Center, the
Community Action Center of Al-Quds University, and the Palestinian Initiative for the Promotion
of Global Dialogue and Democracy (MIFTAH)).
17 H.E. Lang Yabou, Statement, UN General Assembly, “On The Situation In The Middle East (Item
37); Question Of Palestine (Item 38)” (25 May 2021), available at
https://estatements.unmeetings.org/estatements/10.0010/20210525/wlEcg6g2SBVH/m7kPhqa2S8
Qc_en.pdf (“It is time for the international community to stop the policy of apartheid and act
decisively to end this long-standing conflict”).
9
Article 2(4) of the UN Charter prohibits the threat or use of force.18 This
prohibition is customary international law19 and a jus cogens norm.20 The only
exception to this prohibition is for cases of self-defense.21 Even when resort to force
is justified by the existence of an armed attack, the particular force used may still
be illegal if it is unnecessary or disproportionate to the threat against which it is
exercised.22
A belligerent occupation arises from and is maintained by the use of force.23
Thus, belligerent occupations inconsistent with the laws on the use of force are
unlawful in and of themselves. The General Assembly Declaration on Principles
of International Law Concerning Friendly Relations and Cooperation among
States, which reflects customary international law,24 provides that “the territory of
a State shall not be the object of military occupation resulting from the use of force
in contravention of the provisions of the Charter”.25 The 1987 UN General
Assembly Declaration on the Enhancement of the Effectiveness of the Principle of
Refraining from the Threat or Use of Force in International Relations stipulates that
18 UN Charter, Art. 2(4).
19 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. U.S.), 1986 I.C.J.
14, 188, 191 (27 June 1986), paras. 187-190.
20 ILC, Draft Articles on the Law of Treaties, with commentaries, Yearbook of the International Law
Commission (1966), Vol. II, p. 247, Art. 50(1).
21 UN Charter, Art. 51; Nicaragua v. U.S., para. 195.
22 Armed Activities in the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116,
165, 171 (19 Dec. 2005), para. 147.
23 UN General Assembly Resolution 3314 on the Definition of Aggression refers to military
occupation as being one among other “measures of force.” UNGA, Resolution 3314 (XXIX),
Definition of Aggression, UN Doc. A/RES/3314(XXIX) (14 Dec. 1974). See also ibid., para. 3(a)
(stating that “any military occupation, however temporary, resulting from such invasion or attack”
shall qualify as an act of aggression”).
24 Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403, para. 80.
25 UNGA, Resolution 2625 (XXV), Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the United
Nations, UN Doc. A/RES/25/2625 (1970).
10
“[n]either acquisition of territory resulting from the threat or use of force nor any
occupation of territory resulting from the threat or use of force in contravention of
international law will be recognized as legal acquisition or occupation”.26
The Court has repeatedly determined occupations to be unlawful in the past.
In Legal Consequences for States of the Continued Presence of South Africa in
Namibia (“Namibia Advisory Opinion”), the Court found that by “occupying the
Territory without title, South Africa incurs international responsibilities”.27
Similarly, in Armed Activities in the Territory of the Congo, the Court concluded
that the occupation of the Congolese province of Ituri by Uganda “violated the
principle of non-use of force”.28 The United Nations Security Council29 and the
General Assembly30 have characterized occupations resulting from unlawful uses
of force to be illegal as well.
In addition, even if the military presence of a State in another State is
initially lawful, it may later lose its lawful character and become an illegal
occupation. In its Namibia Advisory Opinion, the Court found that South Africa
was unlawfully occupying Namibia following the termination of its mandate and
the corresponding resolution by the Security Council that its continued presence
26 UNGA, Resolution 42/22, Declaration on the Enhancement of the Effectiveness of the Principle
of Refraining from the Threat or Use of Force in International Relations, UN Doc. A/RES/42/22
(18 Nov. 1987).
27 Namibia Advisory Opinion, para. 118.
28 Dem. Rep. Congo v. Uganda, para. 345.
29 See UNSC Res. 674 (1990), U.N. Doc. S/RES/674 (29 Oct. 1990) (warning Iraq that “it is liable
for any loss, damage or injury arising in regard to Kuwait and third states, and their nationals and
corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq”); UNSC,
Resolution 545 (1983), UN Doc. S/RES/545 (20 Dec. 1983) (condemning South Africa’s military
occupation of parts of southern Angola as a “flagrant violation of international law”).
30 UNGA, Resolution 3061 (XXVIII), Illegal occupation by Portugese military forces of certain
sectors of the Republic of Guinea-Bissau and acts of aggression committed by them against the
people of the Republic, U.N. Doc. A/RES/3061(XXVIII) (2 Nov. 1973) (“strongly condemn[ing]
the policies of the Government of Portugal in perpetuating its illegal occupation of certain sectors
of the Republic of Guinea-Bissau.”).
11
was unlawful.31 Thus, a lawful belligerent occupation may cease to be so if it
cannot be justified by the right of self-defense.
In determining whether an occupation purportedly justified on the basis of
self-defense is lawful, it is necessary to examine not only whether the occupation
was prompted by an armed attack, but also whether it was a necessary and
proportionate response to that attack. For example, in Armed Activities on the
Territory of the Congo, the Court observed that:
“the taking of airports and towns many hundreds of
kilometres from Uganda’s border would not seem
proportionate to the series of transborder attacks it
claimed had given rise to the right of self-defence,
nor to be necessary to that end”.32
Necessity and proportionality also play a role in determining the legality of
a prolonged occupation. For example, South Africa’s lengthy occupation of a
buffer zone in Angola from 1981-1988 and Israel’s 22-year presence in South
Lebanon from 1978 to 2000 were both claimed to be justified as self-defense, and
yet both were repeatedly and universally condemned as not necessary or
proportionate.33
31 See Namibia Advisory Opinion, paras. 118-119. Similarly, in Armed Activities on the Territory of
the Congo, the Court found that, while the DRC had initially allowed Ugandan forces to engage in
military action against anti-Ugandan rebels on the DRC’s territory, their subsequent refusal to leave
and occupation of certain territory within the DRC violated the principle of the non-use of force.
Dem. Rep. Congo v. Uganda, paras. 53, 147, 165, 176-179, 345(1). See also UNGA, Resolution
3061 (XXVIII), U.N. Doc. A/RES/3061(XXVIII) (2 Nov. 1973) (“strongly condemn[ing] the
policies of the Government of Portugal in perpetuating its illegal occupation of certain sectors of
the Republic of Guinea-Bissau” following the refusal of Portugal to terminate its colonial rule over
Guinea-Bissau in the wake of the latter’s declaration of independence).
32 Dem. Rep. Congo v. Uganda, para. 147.
33 See UNSC, Resolution 425 (1978), On establishment of a UN interim force for Southern Lebanon,
UN Doc. S/RES/425 (19 Mar. 1978) (calling on Israel to end its unlawful occupation of South
Lebanon); UNSC, Resolution 545 (1983), UN Doc. S/RES/545 (20 Dec. 1983) (condemning South
Africa’s “continued military occupation of parts of southern Angola which constitutes a flagrant
12
Israel’s occupation of the Palestinian Territory violates the jus ad bellum
and is therefore unlawful in and of itself. Israel launched the June 1967 war that
led to its occupation of the Palestinian Territory.34 After its surprise attack initiating
the war, Israel occupied all remaining Palestinian territory in the West Bank,
including East Jerusalem, the Gaza Strip, as well as Syria’s Golan Heights and
Egypt’s Sinai Peninsula, “effectively tripling the size of territory under [its]
control”.35 Even assuming arguendo that Israel had been subjected to an armed
attack, it could not possibly have been necessary to occupy territory many times its
own size. Since Israel’s use of force was not taken in response to an armed attack
and would not have been necessary or proportionate even if it had been, the
occupation was a flagrant violation of the laws on the use of force from the outset.
Even if the occupation were lawful at one time (quod non), its continuation
for more than five decades means that it could not possibly still be lawful today.
First, the use of force in self-defense is only justified “within the strict confines”
laid down in Article 51 of the Charter, and “does not allow the use of force by a
State to protect perceived security interests beyond those parameters”.36 The
exercise of the right of self-defence thus “presupposes that an armed attack has
occurred”.37 As such, “essentially preventative” uses of force are beyond the scope
violation of international law and of the independence, sovereignty and territorial integrity of
Angola”).
34 UNGA, Report of Special Rapporteur F. Albanese on the situation of human rights in the
Palestinian territories occupied since 1967, UN Doc. A/77/356 (21 Sept. 2022), para. 37.
35 “Israel’s borders explained in maps,” BBC News (16 Sept. 2020), available at
https://www.bbc.com/news/world-middle-east-54116567.
36 Dem. Rep. Congo v. Uganda, para. 148.
37 Nicaragua v. U.S., para. 232.
13
of Article 51.38 The occupation is therefore a use of force “which cannot be
dismissed, as Israel often does, by claims of ‘pre-emptive’ self-defence”.39
Second, Article 51 does not apply to situations involving alleged attacks not
imputable to a foreign State. As the Court explained in the Wall Advisory Opinion:
“Article 51 of the Charter thus recognizes the
existence of an inherent right of self-defence in the
case of armed attack by one State against another
State. However, Israel does not claim that the attacks
against it are imputable to a foreign State.”40
Nearly 20 years later, Israel still is not facing, and does not even claim to be facing,
an ongoing armed attack imputable to a foreign State.
Third, Article 51 does not apply to situations involving conduct taken in
response to purported threats emanating from within occupied territory.41 The
Court has explained that in such circumstances, “Article 51 of the Charter has no
relevance”.42 Israel therefore cannot justify its occupation as a response to alleged
threats—let alone “armed attacks”—emanating from within the OPT itself.
Thus, Israel is simply not facing an ongoing armed attack and cannot use it
as an excuse for its occupation. Furthermore, even assuming arguendo that the
occupation was initially necessary and proportionate—which it was not—it plainly
became unnecessary and disproportionate, and thus unlawful.
38 Cf. Dem. Rep. Congo v. Uganda, para. 143.
39 UNGA, Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 21 September 2022, UN Doc. A/77/356, paras. 71-72.
40 Wall Advisory Opinion, para. 139.
41 Ibid.
42 Ibid.
14
It is simply not possible that it has been necessary for Israel to maintain its
occupation since 1967. In Nicaragua v. United States, the Court found the United
States’ use of force to have been unnecessary because it was taken “several months
after the major offensive of the armed opposition against the Government of El
Salvador had been completely repulsed”.43 In this case, Israel has maintained its
occupation through the use of force for 56 years. It has, moreover, done so in
flagrant violation of Palestinians’ right to self-determination, as discussed in
Section I above.
For the same reason, Israel also cannot possibly justify its settlements upon
and annexation of occupied territory as a necessary response to any perceived
threat. The “absolute rule against the acquisition of territory by force makes no
distinction as to whether the territory was occupied through a war of self-defence
or a war of aggression; annexation is prohibited in both circumstances”.44 By
settling and annexing occupied territory, Israel has ipso facto acted unnecessarily
in using force.
Israel’s prolonged occupation is, moreover, wholly disproportionate to any
legitimate aim. Israel’s occupation of the entirety of the OPT “long after the period
in which any presumed armed attack … could reasonably be contemplated”45
makes it even more disproportionate now. And the manner in which the occupation
has been conducted—including the establishment of an apartheid regime—renders
the occupation disproportionate as well.
In sum, Israel’s decades-long occupation violates the laws on the use of
force and is therefore illegal. Even if it had once been a lawful use of force in
43 Nicaragua v. U.S., para. 237.
44 UNGA, Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, 23 October 2017, UN Doc. A/72/556, para. 31 (emphasis added).
45 Cf. Nicaragua v. U.S., para. 237.
15
response to an armed attack—and it was not—it could not possibly have remained
lawful for 56 years. Israel has not been facing an ongoing armed attack and the
prolonged occupation has been neither necessary nor proportionate. As a result,
Israel’s occupation is illegal as a whole and must end.
THE OCCUPATION MUST BE BROUGHT TO AN END IMMEDIATELY
If the Court finds that Israel’s occupation of the OPT is illegal—and The
Gambia trusts that it will—that finding must have consequences.46 The Gambia
submits that the Court should find that Israel is under the obligations to cease all of
its wrongful acts, offer assurances and guarantees of non-repetition, and make full
reparation for the injuries caused.47 Additionally, the Court should find that all
States and the United Nations are under the obligations not to recognize as lawful
Israel’s occupation and other illegal conduct, not to render aid or assistance in
maintaining the occupation, and to cooperate to bring the occupation to an end.48
The Gambia further submits that the Court should find that Israel, all other
States, and the United Nations are under an obligation to bring about an end to
Israel’s occupation immediately, or at least as rapidly as possible.
Such a conclusion is supported by the Court’s prior rulings. In the Namibia
Advisory Opinion, the Court found that “the continued presence of South Africa in
Namibia being illegal, South Africa is under obligation to withdraw its
administration from Namibia immediately and thus put an end to its occupation of
the Territory”.49 Similarly, in the advisory opinion concerning the Legal
46 Namibia Advisory Opinion, para. 117.
47 ILC, Responsibility of States for Internationally Wrongful Acts, in Yearbook of the International
Law Commission 2001 (Vol. II, Pt. 2) (hereinafter, “ARSIWA”), arts. 30, 31, 34-37.
48 ARSIWA, art. 41. See also ILC, Draft articles on the responsibility of international organizations,
in Yearbook of the International Law Commission 2011 (Vol. II, Pt. 2), art. 42.
49 Namibia Advisory Opinion, para. 133(1) (emphasis added).
16
Consequences of the Separation of the Chagos Archipelago from Mauritius in
1965, the Court found that “the United Kingdom is under an obligation to bring an
end to its administration of the Chagos Archipelago as rapidly as possible, thereby
enabling Mauritius to complete the decolonization of its territory in a manner
consistent with the right of peoples to self-determination”.50
In this situation, the Palestinian people have been suffering under foreign
occupation for over 56 years—an occupation that has taken on the form of a regime
of apartheid. The Court should find that Israel’s occupation must be brought to an
end immediately, or at least as rapidly as possible.
***
50 Chagos Advisory Opinion, para. 178 (emphasis added).
17
Respectfully submitted,
___________________________
H.E. Dawda Jallow
Attorney General and Minister of Justice
AGENT OF THE GAMBIA
25 JULY 2023