Written statement of Guyana

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 BY
THE COOPERATIVE REPUBLIC OF GUYANA
25 July 2023
INTRODUCTION
1. The Co-Operative Republic of Guyana submits this written statement in accordance
with the Court’s Order dated 3 February 2023 in the advisory opinion proceedings
concerning Legal Consequences arising from the Policies and Practices of Israel in the
Occupied Palestinian Territory, including East Jerusalem.
2. On 30 December 2022, the General Assembly adopted resolution A/RES/77/247 which
requested the Court:
“to render an advisory opinion on the following questions, considering the
rules and principles of international law, including the Charter of the United
Nations, international humanitarian law, international human rights law,
relevant resolutions of the Security Council, the General Assembly and the
Human Rights Council, and the advisory opinion of the Court of 9 July
2004:
(a) What are the legal consequences arising from the ongoing violation
by Israel of the right of the Palestinian people to self-determination, from
its prolonged occupation, settlement and annexation of the Palestinian
territory occupied since 1967, including measures aimed at altering the
demographic composition, character and status of the Holy City of
Jerusalem, and from its adoption of related discriminatory legislation and
measures?
(b) How do the policies and practices of Israel referred to in paragraph
18 (a) above affect the legal status of the occupation, and what are the
legal consequences that arise for all States and the United Nations from
this status?”
3. Guyana’s submission addresses three of the specific issues addressed in the General
Assembly’s request. Part I addresses the jus cogens prohibition on the annexation of
territory and Israel’s violation of that prohibition in the Palestinian territory occupied
since 1967 (“the OPT”). Part II addresses the jus cogens right of the Palestinian people
to self-determination and Israel’s violation of that right through its prolonged
occupation and annexation of the OPT. Part III addresses the effect of Israel’s of these
peremptory norms on the legal status of the occupation.
2
Part I: The Prohibition on Annexation and Israel’s Violation of that Prohibition
in the OPT
A. The Prohibition on Annexation
1. The Prohibition on Annexation is a Jus Cogens Norm of Universal Application
4. The prohibition on annexation of territory is a jus cogens norm of universal application
and a fundamental cornerstone of the international legal order. The prohibition on the
acquisition of territory through the use of force is a necessary corollary of both the
sovereign equality of States and the prohibition on the use of force against the territorial
integrity or political independence of any State enshrined in Article 2 of the Charter of
the United Nations.
5. The prohibition on annexation is reflected in the Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation amongst States in
Accordance with the Charter of the United Nations, which the General Assembly
adopted in 1970. This provides that:
“The territory of a State shall not be the object of acquisition by another
State resulting from the threat or use of force. No territorial acquisition
resulting from the threat or use of force shall be recognised as legal.”1
6. There is no doubt as to the status and legal consequences of the prohibition on
annexation. As the Max Planck Encyclopaedia of Public International Law explains:
“In view of the pertinent consistent and uniform State practice it is beyond
any doubt that, under present international law, the prohibition of
annexation and the obligation not to recognize it as lawful (Stimson
Doctrine) extend beyond treaty obligations and form part of customary
international law. Considering the essential relevance of these two
principles in terms of the effective implementation of the prohibition of
1 Declaration on Principles of International Law concerning Friendly Relations and Co-operation with among
States in accordance with the Charter of the United Nations A/RES/2625(XXV) (24 October 1970). As the Court
observed in the Military and Paramilitary Activities in and against Nicaragua case, “the adoption by States of
this text affords an indication of their opinion juris as to customary international law on the question” (Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment.
I.C.J. Reports 1986, p. 101, para. 191).
3
the threat or use of force as the most fundamental norm of present
international law, there are convincing reasons to consider them as ius
cogens norms.”2
7. The prohibition on annexation applies to all territory, including the territory of former
mandates. In its Advisory Opinion on the International Status of South West Africa, the
Court held that “the principle of non-annexation” was “of paramount importance” in
the context of mandates.3 In his separate concurring opinion in the advisory opinion
on Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (“the 2004 Wall Opinion”), Judge Al-Khasawneh cited this passage of the
South West Africa Advisory Opinion and stressed that: “In this regard, it should be
recalled that the principle of non-annexation is not extinguished with the end of the
mandate but subsists until it is realized.”4
8. The absolute prohibition on annexation of territory has been reiterated by the General
Assembly and the Security Council in the context of Israel’s prolonged occupation of
the OPT. As the Court noted in its 2004 Wall Opinion: “both the General Assembly and
the Security Council have referred, with regard to Palestine, to the customary rule of
‘the inadmissibility of the acquisition of territory by war’”. Indeed, “[i]t is on this basis
that the Council has several times condemned the measures taken by Israel to change
the status of Jerusalem”.5
2. Annexation May Arise Through the Creation of a Permanent “Fait Accompli”
on the Ground
9. Annexation is not confined to situations where a State formally declares sovereignty
over territory which it has invaded. Annexation can also occur where a State, having
occupied the territory of another State by force, proceeds to treat that occupied territory
as though it were its own sovereign territory and manifests an intention to exercise
permanent dominion over the territory. This is because occupation – unlike annexation
2 Max Planck Encyclopaedia of Public International Law, Annexation (January 2020), para. 21.
3 International status of South-West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 131.
4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, p. 237, para. 9 (Separate Opinion of Judge Al-Khasawneh).
5 Ibid., p. 182, para. 117.
4
– is an inherently temporary state of affairs. As the ICRC commentary on Article 47 of
the Fourth Geneva Convention puts it:
“The occupation of territory in wartime is essentially a temporary, de facto
situation, which deprives the occupied power of neither its statehood nor
its sovereignty; it merely interferes with its power to exercise its rights.
That is what distinguishes occupation from annexation, whereby the
Occupying Power acquires all or part of the occupied territory and
incorporates it in its own territory.”6
10. It follows that where an occupying Power evinces an intention to remain in the occupied
territory indefinitely, and where it treats the occupied territory as though it were its own
rather than as territory belonging to another state, this constitutes a violation of the jus
cogens prohibition on annexation.
11. The Court’s 2004 Wall Opinion provides an instructive example of the scope and
application of this principle. The Court had to consider the legal status and
consequences of the wall which Israel had begun to construct in the occupied West
Bank. Israel claimed that the wall was not intended to be permanent. The Court “note[d]
the assurance given by Israel that the construction of the wall does not amount to
annexation and that the wall is a temporary nature”. The Court stated, however, that:
“it nevertheless cannot remain indifferent to certain fears expressed to it
that the route of the wall will prejudge the future frontier between Israel
and Palestine, and the fear that Israel may integrate the settlements and
their means of access. The Court considers that the construction of the wall
and its associated régime create a ‘fait accompli’ on the ground that could
well become permanent, in which case, and notwithstanding the formal
characterization of the wall by Israel, it would be tantamount to de facto
annexation.”7
12. The Court therefore recognized in the 2004 Wall Opinion that irrespective of the formal
characterization by Israel of its acts in the OPT – and irrespective of its alleged
intentions regarding the duration of those acts – the creation of a permanent regime on
the ground in the OPT would constitute unlawful annexation of that territory even if it
6 J. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War
(ICRC, 1958), at 275.
7 2004 Wall Opinion, p. 184, para. 121.
5
were not accompanied by a formal declaration of sovereignty or purported de jure
annexation by Israel.
B. Israel’s Annexation of East Jerusalem and the West Bank
13. Israel has occupied the OPT for some 56 years – making it by some distance “the
longest belligerent occupation in the modern world”.8 The evidence clearly establishes
that, through the acts it has committed during the course of that prolonged occupation,
Israel has annexed East Jerusalem and the West Bank. Indeed, this is clear from the
words of Israel’s own leaders – who have made no secret of the true nature of Israel’s
ongoing presence there – and from the detailed findings of numerous United Nations
bodies, including the Security Council and the General Assembly, charged with
investigating or monitoring Israel’s actions in the OPT. It is also clear from Israel’s acts
in the occupied territory, in particular the extension of its own laws to East Jerusalem
and the West Bank and its construction of hundreds of settlements, populated by many
hundreds of thousands of Israeli settlers, which Israeli leaders themselves have said are
intended to establish a permanent Israeli presence and dominance throughout the
occupied territory.
14. The events which preceded Israel’s occupation of the OPT are well-known and were
succinctly summarized by the Court in the 2004 Wall Opinion.9 After Israel’s armed
forces seized control of East Jerusalem and the West Bank in June 1967, Israel
immediately proclaimed sovereignty over East Jerusalem and began extending its laws
to both East Jerusalem and the West Bank. Israel’s actions prompted immediate and
trenchant international condemnation, including in a series of resolutions by the
General Assembly and the Security Council.10
8 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, 21 October 2019, A/74/507, para. 158, https://daccess-ods.un.org/tmp/5921782.25517273.html.
9 2004 Wall Opinion, pp. 165-166, paras. 70-72.
10 See for example UN General Assembly resolution (ES-V) 2253 of 4 July 1967 and resolution 2254 (ES-V) of
14 July 1967; and UN Security Council resolution 242 (1967) of22 November 1967, resolution 252 of 21 May
1968, and resolution 298 (1971) o 25 September 1971.
6
15. Despite emphatic and unequivocal demands for it to withdraw from East Jerusalem and
the West Bank, Israel did the opposite: it engaged in a concerted programme to increase
its presence and to tighten its control over the occupied territory. In both East Jerusalem
and the West Bank Israel embarked upon a programme of confiscating Palestinian land
and constructing a vast network of settlements into which it transferred huge numbers
of Israeli settlers. The latest figures show that Israel has established a total of 12
settlements in East Jerusalem, which collectively house some 230,000 Israeli settlers,
and has established more than 270 settlements in the West Bank, which collectively
house almost half a million Israeli settlers.11
16. There is no doubt as to either the purpose of the settlements or their illegality under
international law. The settlements are intended by Israel to establish a physical and
demographic presence throughout East Jerusalem and the West Bank which is
permanent, ever-expanding and irreversible. By constructing thousands of buildings –
including homes, workplaces, schools, hospitals, entertainment and religious venues –
and implanting hundreds of thousands of Israeli settlers, Israel has created a vast,
interconnected and sprawling network of towns and cities dramatically altering the
physical and demographic character of the OPT. The settlements reflect a deliberate
attempt to establish irreversible “facts on the ground” and thereby assimilate the
territory to Israel. occupied territory. According to the UN Special Rapporteur on the
situation of human rights in the Palestinian territories, the settlements “serve the broader
goal of the Government of Israel of staking an impermissible sovereignty claim over
parts of the occupied territory”.12 As the Special Rapporteur put it in a report published
in October 2020:
“the settlements are the primary political instrument – the pervasive ‘facts
on the ground’ – employed by the Government of Israel to advance its de
11 In March 2023, the UN High Commissioner for Human Rights reported that: “During the past 10 years, the
settlement population in the occupied West Bank, including East Jerusalem, has grown from 520,000 in 2012 to
just under 700,000. The population lives in 279 Israeli settlements spread across the West Bank, including 14
settlements in East Jerusalem, with a total population of more than 229,000 persons…Settlement expansion has
continued year upon year over the course of the decade”. (See UN High Commissioner for Human Rights, “Israeli
settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan,
15 March 2023, A/HRC/52/76, paras. 5-6, https://daccess-ods.un.org/tmp/5483590.36445618.html.
12 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, 22 October 2020, A/75/532, para. 54, https://daccess-ods.un.org/tmp/8906415.70091248.html.
7
facto and de jure annexation claims and to deny Palestinian selfdetermination”.
13
17. The illegality of Israel’s settlements in the OPT has been universally recognized.
Article 49, paragraph 6 of the Fourth Geneva Convention provides that an occupying
Power “shall not…transfer parts of its own civilian population into the territory it
occupies”. As the Court explained in the 2004 Wall Opinion, this prohibits “any
measures taken by an occupying Power in order to organize or encourage transfers of
parts of its own population into the occupied territory.”14 The Court had no difficulty
in concluding that, “the information provided to the Court shows that, since 1977, Israel
has conducted a policy and developed practices involving the establishment of
Settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49,
paragraph 6” and that “the Israeli settlements in the Occupied Palestinian Territory
(including East Jerusalem) have been established in breach of international law”.15 The
Court’s conclusion is the same as the conclusions repeatedly reached by the General
Assembly and the Security Council during the decades of Israel’s settlement
programme.16
18. Israel’s leaders have made innumerable statements declaring that East Jerusalem and
West Bank are part of Israel’s sovereign territory. Israel’s current Prime Minister,
Benjamin Netanyahu, for example, has declared that Israel “will forever keep Jerusalem
united under Israel’s sovereignty”17; that “United Jerusalem…has always been – and
always will be – ours…Jerusalem will remain only under Israel’s sovereignty” 18; and
that “[t]he Jewish people are not occupiers in their own land nor occupiers in our eternal
capital Jerusalem”.19 He has made similar repeated declarations with respect to the
West Bank. For example, the Prime Minister has proclaimed that Israeli settlements in
13 Ibid., para. 62.
14 2004 Wall Opinion, p. 184, para. 120.
15 2004 Wall Opinion, p. 184, para. 120.
16 See 2004 Wall Opinion, p. 183, para. 120. See further paragraphs 20 and 21 below.
17 Prime Minister’s Office, PM Netanyahu's Remarks at the State Ceremony at Ammunition Hill Marking 48 Years
to the Reunification of Jerusalem (17 May 2015) (emphasis added),
https://www.gov.il/en/departments/news/speechjerusalem170515.
18 Prime Minister’s Office, Address by PM Netanyahu on the occasion of Jerusalem Day State Ceremony,
Ammunition Hill, Jerusalem (21 May 2009) (emphasis added),
https://www.gov.il/en/departments/news/speechjeru210509.
19 Reuters, Netanyahu says Israel not bound by 'despicable' U.N. vote (31 December 2022),
https://www.reuters.com/world/middle-east/un-vote-israels-occupation-a-victory-palestinians-say-2022-12-31/.
8
the West Bank “will be an inseparable part of the state of Israel for eternity”20; has
demanded “recognition for our sovereignty over the Jordan Valley”21 and repeatedly
announced the Israeli Government’s “intention…to apply Israeli sovereignty to the
Jordan Valley and the northern Dead Sea”22 and stressed the importance of “applying
Israeli sovereignty over all of the communities in Judea and Samaria”.23
19. These intentions are clearly shared by other senior members of Israel’s government. For
instance, Israel’s current Minister of Finance, Bezalel Smotrich, who also serves as a
Minister for the Coordination of Government Activities in Territories and the Civil
Administration, has long advocated a policy of “victory by settlement”.24 He recently
declared that Israel would oversee “the construction of thousands more” settlement
units in “Judea and Samaria” with a very specific aim, namely: “to develop the
settlement and strengthen the Israeli hold on the territory.”25
20. Numerous independent UN organs have explicitly characterized Israel’s conduct in East
Jerusalem and the West Bank as annexation. By way of example, the General Assembly
has repeatedly condemned Israel’s “annexation” of that territory:
- As long ago as 1971, the General Assembly adopted resolution 2851 (XVI) which
“Strongly call[ed] upon Israel to rescind forthwith all measures and desist from all
policies and practices such as… [t]he annexation of any part of the occupied Arab
territories”26;
20 New York Times, Netanyahu Says Some Settlements to Stay in Israel (24 January 2010) (emphasis added),
https://www.nytimes.com/2010/01/25/world/middleeast/25mideast.html.
21 Prime Minister’s Office, Excerpts from PM Netanyahu’s Remarks to the Makor Rishon Economic, Society and
Innovation Conference in Jerusalem (8 December 2019) (emphasis added),
https://www.gov.il/en/departments/news/event_conference081219.
22 BBC, Arab nations condemn Netanyahu's Jordan Valley annexation plan (11 September 2019) (emphasis
added), https://www.bbc.co.uk/news/world-middle-east-49657915.
23 Prime Minister’s Office, Cabinet Approves PM Netanyahu’s Proposal to Establish the Community of Mevo’ot
Yeriho & PM’s Remarks at the Start of the Cabinet Meeting (15 September 2019) (emphasis added),
https://www.gov.il/en/departments/news/event_jordan150919.
24 Jerusalem Post, MK’s controversial plan nixes two-state solution, calls for annexation (11 September 2017),
https://www.google.com/search?client=safari&rls=en&q=MK%E2%80%99s+controversial+plan+nixes+twostate+
solution%2C+calls+for+annexation&ie=UTF-8&oe=UTF-8.
25 B. Smotrich, Twitter (18 June 2023) (emphasis added).
26 UNGA resolution 2851 (XXVI) (20 December 1971).
9
- In 197427, 197528, 197629, 197730, 197831 and 197932, the General Assembly adopted
resolutions which expressed “the gravest concern at” and “condemned” regarding
Israel’s “annexation of parts of the occupied territories”;
- In 1983, the General Assembly adopted a resolution which declared that “all Israeli
policies and practices of, or aimed at, annexation of the occupied Palestinian and
other Arab territories, including Jerusalem” are “illegal and in violation of
international law and of the relevant United Nations resolutions”33;
- In 1994, the General Assembly adopted a resolution which declared that “all Israeli
policies and practices of, or aimed at, annexation of the occupied Arab territories
since 1967” are “illegal and in violation of international law and of the relevant
United Nations resolutions”;34
- In resolutions adopted in 200335, 200436, 200537, 200638, 200739, 200840, 200941,
201042, 201143, 201244, 201345, 201446, 201547, 201648, 201749, 201850 the General
Assembly successively “Reiterate[d] its opposition to”, “Deplore[d]” and
27 UNGA resolution 3240 (29 November 1974).
28 UNGA resolution 3525 (15 December 1975).
29 UNGA resolution 31/106 (16 December 1976).
30 UNGA resolution 32/91 (13 December 1977).
31 UNGA resolution 33/113 (18 December 1978).
32 UNGA resolution 34/90 (12 December 1979).
33 UNGA resolution 38/180 (19 December 1983).
34 UNGA resolution 48/59 (31 January 1993).
35 UNGA resolution 58/98 (17 December 2003).
36 UNGA resolution 59/123 (10 December 2004).
37 UNGA resolution 60/106 (8 December 2005).
38 UNGA resolution 61/118 (14 December 2006).
39 UNGA resolution 62/108 (17 December 2007).
40 UNGA resolution 63/97 (5 December 2008).
41 UNGA resolution 64/93 (10 December 2009).
42 UNGA resolution 65/104 (10 December 2010).
43 UNGA resolution 66/78 (9 December 2011).
44 UNGA resolution 67/120 (18 December 2012).
45 UNGA resolution 68/82 (11 December 2013).
46 UNGA resolution 69/92 (5 December 2014).
47 UNGA resolution 70/89 (9 December 2015).
48 UNGA resolution 71/97 (6 December 2016).
49 UNGA resolution 72/86 (7 December 2017).
50 UNGA resolution 73/98 (7 December 2018).
10
“Condemn[ed]” the “settlement activities in the Occupied Palestinian Territory,
including East Jerusalem” and “and the de facto annexation of land” there.
- In resolutions adopted in 202051, 202152 and 202253, the General Assembly went
even further by “Stress[ing]”:
“that the occupation of a territory is to be a temporary, de facto situation,
whereby the occupying Power can neither claim possession nor exert its
sovereignty over the territory it occupies, recalls in this regard the
principle of the inadmissibility of the acquisition of land by force and
therefore the illegality of the annexation of any part of the Occupied
Palestinian Territory, including East Jerusalem, which constitutes a
breach of international law, undermines the viability of the two-State
solution and challenges the prospects for a just, lasting and comprehensive
peace settlement, and expresses its grave concern at recent statements
calling for the annexation by Israel of areas in the Occupied Palestinian
Territory”.
The resolutions further stated that the General Assembly
“Condem[ed] in this regard settlement activities in the Occupied
Palestinian Territory, including East Jerusalem, and in the occupied Syrian
Golan and any activities involving the confiscation of land, the disruption
of the livelihood of protected persons, the forced transfer of civilians and
the annexation of land, whether de facto or through national legislation”;
and
“Call[ed] upon all States, consistent with their obligations under
international law and the relevant resolutions, not to recognize, and not to
render aid or assistance in maintaining, the situation created by measures
that are illegal under international law, including those aimed at advancing
annexation in the Occupied Palestinian Territory, including East
Jerusalem”
21. To similar effect, the Security Council has condemned Israel’s actions in the OPT as
being incompatible with the prohibition on the acquisition of territory by force. For
example:
51 UNGA resolution 75/97 (18 December 2020).
52 UNGA resolution 76/82 (9 December 2021).
53 UNGA resolution 77/126 (12 December 2022).
11
- In 1968, the Security Council adopted resolution 262 “Reaffirm[ed]” that “that
acquisition of territory by military conquest is inadmissible” and which declared
that “all legislative and administrative measures and actions taken by Israel,
including expropriation of land and properties thereon, which tend to change the
legal status of Jerusalem are invalid and cannot change that status”;
- In 1971, the Security Council adopted resolution 298 which once again
“Reaffirm[ed] the principle that acquisition of territory by military conquest is
inadmissible” and which “Confirm[ed] in the clearest possible terms 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 totally invalid
and cannot change that status”;
- In 1980, following Israel’s adoption of the Basic Law: Jerusalem, Capital of Israel,
which declared Jerusalem to be the “complete and united…capital of Israel”, the
Security Council adopted resolution 478 which once more “Reaffirm[ed] again that
the acquisition of territory by force is inadmissible” and which “Censure[d] in the
strongest terms the enactment by Israel of the "basic law" on Jerusalem and the
refusal to comply with relevant Security Council resolutions”;
- In 2016, the Security Council adopted resolution 2334 which “reaffirm[ed]…the
inadmissibility of the acquisition of territory by force” and condemned “all
measures aimed at altering the demographic composition, character and status of
the Palestinian Territory occupied since 1967, including East Jerusalem, including,
inter alia, the construction and expansion of settlements, transfer of Israeli settlers,
confiscation of land, demolition of homes and displacement of Palestinian civilians,
in violation of international humanitarian law and relevant resolutions”. The
Security Council further reiterated that Israel’s construction of settlements in the
OPT “has no legal validity and constitutes a flagrant violation under international
law”.
22. The UN Secretary-General has published numerous reports concerning Israel’s
settlements in the OPT, which explicitly describe Israel’s conduct in East Jerusalem and
the West Bank as “annexation”. For example:
12
- In 2009, the UN Secretary-General published a report which stated:
“International law prohibits the annexation of territory occupied pursuant
to an armed conflict. Israel’s annexation of East Jerusalem constitutes a
flagrant violation of international law.
According to the Office for the Coordination of Humanitarian Affairs, 12
settlements have been constructed in East Jerusalem since its annexation,
and the settler population stands at approximately 195,000.”54
- In 2010, the UN Secretary-General published a further report which reiterated that:
“Israel’s annexation of East Jerusalem immediately after the 1967 war is
a flagrant violation of international law. Contrary to its obligations under
international law, Israel has constructed 12 settlements in East Jerusalem
since its annexation” 55
- In 2015, the UN Secretary-General published a further report which found that:
“Occupation is supposed to be temporary because the annexation or
acquisition of territory by force is strictly prohibited under international
law. The specific prohibition of transferring the population of the
occupying Power into occupied territory aims at countering attempts at de
facto annexation. In the West Bank, including East Jerusalem, the
establishment and maintenance of the settlements amount to a slow, but
steady annexation of the occupied Palestinian territory…
In the case of East Jerusalem, the continued settlement advances in
Jerusalem and around the Jerusalem periphery, appears to have been
intended to alter the demographic composition there…in the context of an
illegal annexation condemned by the Security Council.”56
- In 2020, the UN Secretary-General published a further report which found that:
“Since Israel annexed East Jerusalem, property in East Jerusalem owned by
Palestinians residing outside the city has been determined by Israeli authorities to
54 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and the occupied Syrian Golan, 6 November 2009, A/64/516, paras. 22-23 (emphasis added),
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N09/598/11/PDF/N0959811.pdf?OpenElement.
55 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and the occupied Syrian Golan, 14 September 2010, A/65/365, para. 18 (emphasis added),
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N10/532/26/PDF/N1053226.pdf?OpenElement.
56 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and the occupied Syrian Golan, 31 August 2015, A/70/351, paras. 17-18 (emphasis added),
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/268/50/PDF/N1526850.pdf?OpenElement.
13
be “absentee property” on the basis of claims initiated by settler organizations, and
in some cases transferred or sold to settler organizations. Notwithstanding the
illegality of annexation under international law, the Supreme Court of Israel
accepted such confiscations”.57 The report also referred to: “The Israeli
Government’s stated intention to move ahead with annexation of parts of the
occupied West Bank”.58
23. Various independent persons and bodies charged with investigating Israel’s activities in
the OPT have reached the same conclusions. Successive UN Special Rapporteurs, for
example, have characterised Israel’s actions in East Jerusalem and West Bank as
“annexation”. To take the reports published in the last five years as an example:
- In October 2018, the Special Rapporteur concluded that: “As part of its continuing
efforts to ensure that its de jure annexation of East Jerusalem is irreversible, Israel
has over the past five decades extended its national laws and civil authority to the
occupied section of the city; issued numerous declarations of permanent
sovereignty; transformed the physical features and historic character of East
Jerusalem; moved some of its national institutions, including the Ministry of
Justice; and embarked upon an intensive programme of creating and expanding
Israeli settlements.”59 In respect of the West Bank, the Special Rapporteur added:
“The Israeli political leadership has become much more uninhibited over the past
two years in expressing out loud what the actions of the Government of Israel have
been proclaiming for years. Annexation is in the air, and intention is now being
openly expressed in words as well as in deeds.”60
- In October 2019, the Special Rapporteur highlighted the “increased calls by the
Prime Minister of Israel and senior members of his Government for the annexation
of parts or all of the West Bank”.61 The Special Rapporteur stated that, “the
57 Report of the Secretary-General, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and the occupied Syrian Golan, 1 October 2020, A/75/376,, para 51 (emphasis added),
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N20/253/41/PDF/N2025341.pdf?OpenElement.
58 Ibid., para. 39 (emphasis added).
59 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, 22 October 2018, A/73/447, para. 37 (emphasis added), https://daccessods.
un.org/tmp/8394666.91017151.html.
60 Ibid., para. 58 (emphasis added).
61 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, 21 October 2019, A/74/507, para. 15, https://daccess-ods.un.org/tmp/5921782.25517273.html.
14
extension by Israel of it laws and civil authority to occupied East Jerusalem is part
of its continuing efforts to ensure that the de jure annexation of East Jerusalem is
irreversible”.62 In a section specifically concerned with “Annexation”, the Special
Rapporteur further stated that: “The Security Council has affirmed the legal
principle on at least eight occasions, most recently in its resolution 2334 (2016),
that the acquisition of territory by force is inadmissible. Although it denounced the
annexation by Israel of East Jerusalem in 1980 and of the Syrian Golan Heights in
1981 as unlawful, Israel has not reversed these de jure annexations, nor has its
political leadership been impeded from intensifying its de facto annexation of the
West Bank through ongoing land confiscation and its burgeoning settlement
enterprise. Moreover, the Israeli political leadership continues to regularly express
its support for formally annexing parts or all of the West Bank”.63
- In October 2020, the Special Rapporteur described “the persistent refusal of Israel
to unwind its annexation of East Jerusalem”, noting that despite condemnation by
the Security Council “Israel has continued to intensify its annexation of East
Jerusalem through the creation and expansion of 12 civilian settlements, the
presence of 215,000 Jewish settlers and the construction of a wall separating East
Jerusalem from the West Bank, and by solidifying the political and infrastructural
integration of East and West Jerusalem”.64 The Special Rapporteur also referred to
“the announcement by Israel of its planned annexation of parts of the West Bank
and the Jordan Valley”.65
- In October 2021, the Special Rapporteur published a further report which concluded
that Israel’s “five-decade-old occupation has become indistinguishable from
annexation”.66 He noted that there was “plentiful economic and political evidence”
that “Israeli policies and practices towards the Palestinians” pursue “a strategy of
de facto annexation and permanent control over the Palestinian territory”.67 The
62 Ibid., para. 22 (emphasis added).
63 Ibid., para. 63 (emphasis added).
64 Ibid., paras. 41-42 (emphasis added)
65 Ibid., para. 8 (emphasis added).
66 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, 22 October 2021, A/76/433, para. 57, https://www.ohchr.org/en/documents/country-reports/a76433-reportsituation-
human-rights-palestinian-territories-occupied.
67 Ibid., para. 48.
15
Special Rapporteur referred to the European Union’s “opposition to the de jure
annexation plans made by Israel” in respect of the West Bank; although he noted
that this had “done little to alter the thickening occupation and the reality of de facto
annexation”.68 He also referred to that fact that: “Former Secretary-General Ban Ki-
Moon stated in June 2021 that: ‘Israel has pursued a policy of incremental de facto
annexation in the territories it has occupied since 1967’”.69
- In August 2022, the Special Rapporteur published a further report which reiterated
his finding that: “in recent decades, the inexorable Israeli occupation has become
indistinguishable from annexation”.70 The Special Rapporteur described how:
“Since the beginning of the occupation in June 1967, the rule of Israel over the
Palestinian territory has been epitomized by two core features. The first is the
establishment of designed-to-be irreversible “facts-on-the-ground”: the creation of
300 civilian settlements, with 700,000 Jewish settlers, meant to demographically
engineer an unlawful sovereignty claim through the annexation of the occupied
territory while simultaneously thwarting the Palestinians’ right to selfdetermination.”
71 He summarized the position in the following terms: “The
occupation by Israel has been conducted in profound defiance of international law
and hundreds of United Nations resolutions, with scant pushback from the
international community. Its 55-year-old occupation burst through the restraints of
temporariness long ago. Israel has progressively engaged in the de jure and de facto
annexation of occupied territory.”72
24. Most recently, in September 2022 the Independent International Commission of Inquiry
on the Occupied Palestinian Territory, including East Jerusalem, and Israel submitted a
report to the General Assembly which addressed Israel’s “purported de jure and de facto
annexation of” the OPT.73 The report described amongst other things Israel’s “purported
68 Ibid., para. 43.
69 Ibid., para. 33.
70 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
1967, Michael Lynk, 12 August 2022, A/HRC/49/87, para. 51, https://documents-ddsny.
un.org/doc/UNDOC/GEN/G22/448/72/PDF/G2244872.pdf?OpenElement.
71 Ibid., para. 35.
72 Ibid., para. 11.
73 Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, 14 September 2022, A/77/328, p. 2, https://documents-ddsny.
un.org/doc/UNDOC/GEN/N22/591/34/PDF/N2259134.pdf?OpenElement.
16
de jure annexation of East Jerusalem”74 and the “de facto annexation policies” which
“successive Governments of Israel” had adopted.75 The Independent Commission
concluded that:
- “[T]here are reasonable grounds to conclude that the Israeli occupation of
Palestinian territory is now unlawful under international law owing to its
permanence and to actions undertaken by Israel to annex parts of the land de facto
and de jure.”76
- “Actions by Israel that are intended to create irreversible facts on the ground and
expand its control over territory are reflections as well as drivers of its permanent
occupation. The settlement enterprise is the principal means by which those results
are achieved.” 77
- “Statements made by Israeli officials provide further evidence that Israel intends
the occupation to be permanent, as does the absence of actions intended to end the
occupation, including in respect to a “two-State solution” or any other solution.” 78
- “Israel treats the occupation as a permanent fixture and has – for all intents and
purposes – annexed parts of the West Bank, while seeking to hide behind a fiction
of temporariness. Actions by Israel constituting de facto annexation include
expropriating land and natural resources, establishing settlements and outposts,
maintaining a restrictive and discriminatory planning and building regime for
Palestinians and extending Israeli law extraterritorially to Israeli settlers in the West
Bank.” 79
- “The International Court of Justice anticipated such a scenario in its 2004 advisory
opinion, in which it stated that the wall was creating a fait accompli on the ground
74 Ibid., para. 16 (emphasis added).
75 Ibid., para. 51 (emphasis added).
76 Ibid., para. 75 (emphasis added).
77 Ibid. (emphasis added).
78 Ibid. (emphasis added).
79 Ibid., para. 76 (emphasis added).
17
that could well become permanent and tantamount to de facto annexation. This has
now become the reality.”80
- “In the view of the Commission, the permanent occupation and de facto annexation
by Israel, including the actions undertaken by Israel as identified in the present
report, cannot remain unaddressed.” 81
25. Guyana submits that the findings summarized above, and many others like them,
demonstrate that there is no doubt that Israel has annexed East Jerusalem and the West
Bank, contrary to international law.
Part II. The Right to Self-Determination of the Palestinian People and Israel’s
Violation of that Right
A. The Right to Self-Determination
26. Like the prohibition on annexation, the right to self-determination is also a jus cogens
norm of universal application. In the 2004 Wall Opinion, the Court noted that:
“the principle of self-determination of peoples has been enshrined in the
United Nations Charter and reaffirmed by the General Assembly in
resolution 2625 (XXV)…Article 1 common to the International Covenant
on Economic, Social and Cultural Rights and the International Covenant
on Civil and Political Rights reaffirms the rights of all peoples to selfdetermination,
and lays upon the States parties the obligation to promote
the realization of that right and to respect it, in conformity with the
provisions of the United Nations Charter.”82
27. As the Court observed in the East Timor case, the principle of self-determination “has
an erga omnes character” and “is one of the essential principles of contemporary
international law”.83 In its 2019 advisory opinion on the Legal Consequences of the
Separation of the Chagos Archipelago from Mauritius in 1965, the Court observed that
it therefore follows that “all States have a legal interest in protecting that right”.84 The
80 Ibid., para. 76 (emphasis added).
81 Ibid., para. 84 (emphasis added).
82 2004 Wall Opinion, pp. 171-172, para. 88.
83 East Timor (Portugal v. Australia), Judgment, I. C.J. Reports 1995, p. 102, para. 29.
84 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019, p. 139, para. 180.
18
Court added that: “[T]he right to self-determination, as a fundamental human right, has
a broad scope of application”.85
28. The jus cogens character of the right to self-determination is reflected (amongst other
things) by the fact that it is expressly included in the list of jus cogens norms in the
ILC’s Draft Conclusions on Identification and Legal Consequences of Peremptory
Norms of International Law (Jus Cogens).86 Indeed, in his separate concurring opinion
the Chagos Advisory Opinion, Judge Cançado Trindade observed that: “On several
occasions, from the early sixties, jus cogens was directly attached to the right to selfdetermination”
by the ILC. In the Chagos advisory proceedings no fewer than 17 States
(plus the African Union) made submissions specifically in support of the proposition
that the right to self-determination has the status of jus cogens.87 Judge Cançado
Trindade conducted a detailed analysis of those submissions and of the history of the
right to self-determination and had no hesitation in concluding that the right “indeed
belongs to the realm of jus cogens, and entails obligations erga omnes, with all legal
consequences ensuing therefrom”.88 This conclusion accords with the views of learned
commentators.89
B. Israel’s Violation of the Right to Self-Determination of the Palestinian People
29. There is no doubt that the right to self-determination applies to the Palestinian people.
Nor is there any doubt that Israel has systematically violated this right through its
conduct in the OPT. Indeed, the Court expressly confirmed both the existence and the
violation of that right in the 2004 Wall Opinion, which held that the rights of the
85 Ibid., p. 131, para. 144.
86 Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of General International
Law (Jus Cogens), Report of the International Law Commission, 73rd Sess., 18 April-3 June & 4 July-5 August
2022, A/77/10, para. 44, Annex.
87 In his separate opinion Judge Cançado Trindade listed the 17 States which had expressly addressed this issue:
“Argentina, Belize, Brazil, Chile, Cuba, Cyprus, Djibouti, Kenya, Mauritius, Namibia, Nigeria, the Netherlands;
Nicaragua; Serbia; Seychelles; South Africa; and Zambia. (See 2004 Wall Opinion, p. 196, para. 129 (Separate
opinion of Judge Cançado Trindade)).
88 2004 Wall Opinion, p. 193, para. 119.
89 As long ago as 1994, for example, the authors of The Charter of the United Nations – A Commentary observed
that the right to self-determination had become “overwhelmingly characterized as forming part of the peremptory
norms of international law” (K. Doehring, “Self-Determination as Jus Cogens”, [Various Authors], The Charter
of the United Nations — A Commentary (eds. B. Simma et al.), Oxford University Press, 1994, pp. 70-71.) The
Max Planck Encyclopaedia of Public International Law similarly observes that the principle of self-determination
is one of the “rules mentioned frequently” as having the character of jus cogens.
19
Palestinian people “include the right to self-determination, as the General Assembly
has…recognized on a number of occasions”90 and which found that “Israel is bound to
comply with its obligation to respect the right of the Palestinian people to selfdetermination”
91 The Court went on to find that Israel’s construction of the wall in the
OPT “severely impedes the exercise by the Palestinian people of its right to selfdetermination,
and is therefore a breach of Israel’s obligation to respect that right”.92
The Court further held that: “It is also for all States, while respecting the United Nations
Charter and international law, to see to it that any impediment, resulting from the
construction of the wall, to the exercise by the Palestinian people of its right to selfdetermination
is brought to an end.”93
30. The Court’s conclusions regarding Israel’s violation of the Palestinian people’s right to
self-determination in the 2004 Wall Opinion were based entirely on the narrow issues
then before the Court regarding the construction of the wall and the associated regime.
In the present advisory proceedings, the Court is called upon to consider Israel’s
conduct from a much broader perspective, which includes the significant extension and
consolidation of Israel’s annexation of East Jerusalem and the West Bank that has
occurred in the intervening 19-year period. When assessed through that expanded lens,
the existence and scale of Israel’s violation of the right to self-determination of the
Palestinian people is both indisputable and overwhelming.
31. Israel’s violation of the right of the Palestinian people to self-determination is an
inevitable consequence of its decades-long occupation and annexation of Palestinian
territory. Indeed, as Judge Al-Khasawneh put it in his separate opinion in the Wall case:
“[W]hat prevents this right of self-determination from being fulfilled is Israel’s
prolonged military occupation with its policy of creating faits accomplis on the
ground”.94 As the Special Rapporteur explained in 2021,“the de facto and de jure
annexation of occupied territory by Israel, primarily led by the relentless expansion of
its settlements, has undercut any meaningful exercise of self-determination on what
90 2004 Wall Opinion, p. 183, para. 118.
91 Ibid., p. 197, para. 149.
92 Ibid., p. 184, para. 122.
93 Ibid., p. 200, para 159.
94 2004 Wall Opinion, p. 237, para. 9 (Separate opinion of Judge Al-Khasawneh).
20
remains of Palestinian land”.95 The Independent International Commission of Inquiry
was likewise clear in its conclusion that:
“[T]he occupation and de facto annexation policies of Israel have had a
severe impact on Palestinian lives throughout the West Bank and
constitute grave violations and abuses of human rights as well as violations
of international humanitarian law. The commitment of Israel to supporting
this enterprise has resulted in a series of policies that are intended to
sustain and extend the enterprise, which have negatively affected all areas
of Palestinian life. They include evictions, deportations and the forcible
transfer of Palestinians within the West Bank, the expropriation, looting,
plundering and exploitation of land and vital natural resources, movement
restrictions and the maintenance of a coercive environment with the aim
of fragmenting Palestinian society, encouraging the departure of
Palestinians from certain areas and ensuring that they are incapable of
fulfilling their right to self-determination.”96
Part III. The Effect of Israel’s Violations on the Legal Status of the Occupation
32. As explained above, the annexation of territory is fundamentally incompatible with
lawful occupation. So too is the denial of the right to self-determination of the people
of the occupied territory. An occupation which involves annexation of the occupied
territory is, in truth, not an “occupation” at all: it is a military conquest. A State cannot
simultaneously be both the temporary non-sovereign occupant and the permanent
purported “sovereign” of the same territory. Likewise, an occupation which is
conducted in such a way as to deny the right to self-determination of the people of the
occupied territory (including by annexing the territory of those people) is, inevitably
and self-evidently, not an occupation which is being carried out in accordance with the
laws of occupation.
33. Through its acts in the OPT since 1967, Israel has systematically violated both the jus
cogens prohibition on annexation and the jus cogens right to self-determination of the
Palestinian people. The violations of those peremptory norms of international law –
95 Report of the Special Rapporteur on the situation of human rights in the Palestinian territory occupied since
1967, 22 October 2021, Michael Lynk, A/76/433, para. 36(c), https://www.ohchr.org/en/documents/countryreports/
a76433-report-situation-human-rights-palestinian-territories-occupied.
96 Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including
East Jerusalem, and Israel, 14 September 2022, A/77/328, para. 77, https://documents-ddsny.
un.org/doc/UNDOC/GEN/N22/591/34/PDF/N2259134.pdf?OpenElement.
21
which the evidence shows are grave, longstanding and ongoing – are not ancillary or
accidental or isolated aspects of an otherwise lawful temporary occupation. Rather,
they are both an integral feature and a permanent consequence of Israel’s continuing
presence in the OPT.
34. An occupation which involves, and is inextricably founded upon, such serious breaches
of jus cogens norms is not – and could not ever be – a lawful occupation. Israel’s
violation of these peremptory norms of international law therefore irredeemably vitiates
the lawfulness of its prolonged occupation of the OPT. It follows that Israel’s prolonged
occupation of the OPT is itself unlawful in toto, and therefore Israel’s obligation to
cease its internationally wrongful acts entails an obligation to immediately and fully
end that occupation. Nothing short of a complete end to the occupation would suffice
for this purpose.
35. In its 2019 Advisory Opinion in the Chagos case, Court found that the United
Kingdom’s ongoing colonial administration of an integral part of Mauritius’ national
territory was “an unlawful act of a continuing character,”97 and that, as a consequence,
the United Kingdom was “under an obligation to bring an end to its administration of
the Chagos Archipelago as rapidly as possible.”98 Whether, as in Chagos, a colonial
administration is unlawful, or whether, as here, an occupation administration is
unlawful, the consequences must be the same. In both situations, a foreign power –
whether colonial or occupying – is unlawfully present in and administering the territory
of another State, against the wishes of its people and in violation of their right to selfdetermination.
In both cases, the unlawful administration must be brought to an end as
rapidly as possible in its entirety.
36. There are consequences for third States, as well. In the 2004 Wall Opinion the Court
held that, in light of the Court’s conclusions regarding the illegality of Israel’s acts
under consideration in that case, it followed that:
“All States are under an obligation not to recognize the illegal situation
resulting from the construction of the wall and not to render aid or
assistance in maintaining the situation created by such construction; all
97 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019, p. 138, para. 177.
98 Ibid., p. 139, para. 178.
22
States parties to the Fourth Geneva Convention relative to the Protection
of Civilian Persons in Time of War of 12 August 1949 have in addition the
obligation, while respecting the United Nations Charter and inter- national
law, to ensure compliance by Israel with international humanitarian law as
embodied in that Convention.”99
37. Adopting the same approach, Guyana submits that it must follow that Israel is under an
obligation to end its unlawful occupation of Palestinian territory as rapidly as possible
and respect the right of the Palestinian people to self-determination; and that all States
have an obligation (i) not to recognize as legal Israel’s occupation of the OPT; (ii) not
to render any aid or assistance to Israel in maintaining that occupation; and (iii) to
ensure that Israel complies fully with international humanitarian law and with the jus
cogens prohibition on annexation and the jus cogens right to self-determination of the
Palestinian people – such compliance must include (but is not limited to) immediately
ending its occupation of the OPT. These solemn and binding duties are a necessary
corollary of the unlawfulness of Israel’s occupation of the OPT.
CONCLUSION
38. For the reasons set out in this Written Statement, the Co-Operative Republic of Guyana
submits that:
(1) Israel has unlawfully annexed the West Bank and East Jerusalem.
(2) Israel has violated the right to self-determination of the Palestinian people.
(3) Israel’s occupation of the OPT is unlawful, and Israel is under an obligation to
immediately and fully cease that occupation.
(4) All States are under an obligation (i) not to recognize as lawful Israel’s occupation
of the OPT; not to render any aid or assistance to Israel in maintaining that
occupation; and (iii) to ensure that Israel complies fully with its international legal
obligations, including by immediately ending its occupation of the OPT.
99 2004 Wall Opinion, p. 202, para. 163D.
23
Hugh Hilton Todd
Minister of Foreign Affairs and International Cooperation
25 July 2023