Written statement of Namibia

REPUBLIC OF NAMIBIA
WRITTEN STATEMENT
INTERNATIONAL COURT OF JUSTICE
ON
LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND PRACTICES OF ISRAEL IN THE OCCUPIED
PALESTINIAN TERRITORY, INCLUDING EAST JERUSALEM
(REQUEST FOR AN ADVISORY OPINION)
SUBMITTED BY THE REPUBLIC OF NAMIBIA
July 2023
TABLE OF CONTENTS
I. Introduction ....... .............................. .. ................................................................ ....... ......... .. ... ....... ...... 3
II. The Jurisdiction of the Court .... ............ .... ..... ...... .... ... ... .................. ............. .............. ................... .... 6
III. The Prohibition of Apartheid in International Law ....... ..... .. .. .... .... ... ........... .. .. .... .... .. ... .... .......... .... .. 8
A. The Existence of the Prohibition of Apartheid in International Law 8
i. Apartheid in Customary International Law .. .. ... ................. ... .... ... .... ........ ...... .... ................... 8
ii. Apartheid under Article 3 ofICERD ....... .. ......... ...... ..... ... ........... .... ............ ...... ....... ........ ... 10
B. The Definition of Apartheid in Custom and ICERD 10
i. The Relevance of the Definition in Article 2 of the Apartheid Convention to the Prohibition of Apartheid in
Customary International Law ....... ......... ..................... ..... ....... ... .......... ... .... ............ ............ ...... .... 11
u. The Relevance of the Definition in Article 2 of the Apartheid Convention to Article 3 of!CERD 12
iii. Apartheid in the Rome Statute .. ... ............. ..... .. ........... .... ............ ... ............... ............ .. .... ..... 13
iv. Apartheid in Additional Protocol I to the Geneva Conventions .......................... ................ ... 14
C. The Scope of the Prohibition of Apartheid 14
IV. Practices of Apartheid Against the Palestinian People ......... .... ........ ...... ..................................... ... 16
A.
B.
i.
ii.
iii.
C.
D.
i.
ii.
iii.
Elements of the Prohibition of Apartheid
The Material Element of Apartheid
17
18
The Material Element in Article 2(c) of the Apartheid Convention ...... ..... .... .. ........ ... ........ 18
The Material Element in Article 2( d) of the Apartheid Convention .... ......... ................... .... 25
Conclusion on the Material Element of Apartheid .......... ............... ..... ..... ......................... .. 28
The Question of Racial Groups 28
The Specific Intent Element of the Wrong of Apartheid 30
The Meaning of the Specific Intent of Apartheid ....... ... ...... ........ ............. ........... ....... ....... .. 30
Inferring Specific Intent - An Analogy from the Law of Genocide .... ............................. .. .31
Application to Israel's Practices in Occupied Palestinian Territory and Israel ... .... .. ..... ..... 32
E. Conclusion - Apartheid against the Palestinian people 34
V. Legal Consequences Arising from Israel's Practice of Apartheid ............................... .................... 34
A. The Peremptory Status of Apartheid in Customary International Law 34
B. Legal Consequences for Israel 35
C. Legal Consequences for all other States 37
D. Legal Consequences for the United Nations 38
VI. Israel's Administration of the Occupied Palestinian Territory Breaches the Right of the Palestinian People to Self-
Detennination, and is Illegal ............. ........ ...... .. ..... ..... .. ...... ... .......... .. ............. ........................ .... ... ....... 38
VII. Legal Consequences Arising from Israel's Illegal Occupation .. ..... ......... ....... ............... .............. .40
VIII. Conclusion and Summary ..... ... .... ....... ............ ............. .. ... ..... ..... ... ... ............ .... .. ..... ....... .... .... .. .. .41
2
WRITTEN STATEMENT OF NAMIBIA
*
I. INTRODUCTION
l. This written statement is filed by the Republic of Namibia in accordance with the Order of the
Court of 3 February 2023 in response to the request by the General Assembly of the United
Nations for an Advisory Opinion contained in Resolution 77 /24 7 of 30 December 2022.1
2. In Resolution 77/247, the General Assembly requested an Advisory Opinion in the following
terms:
The General Assembly,
18. Decides, in accordance with Article 96 of the Charter of the United Nations, to request
the International Court of Justice, pursuant to Article 65 of the Statute of 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?2
3. The request can be divided into five parts. Paragraph 18(a) of Resolution 77/247 contains three
questions. First, the Court is asked to examine and advise on legal consequences arising from the
violation by Israel of the right of the Palestinian people to self-determination. Second, the Court
is asked to consider the (il)legality of the prolonged Israeli occupation of the Occupied
Palestinian Territory since 1967, comprising the West Bank, including east Jerusalem, and the
Gaza Strip including measures aimed at altering the demographic composition, character and
status of the Holy City of Jerusalem,. Third, the Court is asked to consider Israel's 'adoption of
related discriminatory legislation and measures.' Paragraph 18 (b) presents the fourth and fifth
questions, which call upon the Court to determine how the above Israeli policies and practices
'affect the legal status of the occupation' and what legal consequences arise therefrom for all
States and the United Nations.
1 UNGA Res 77/247, 30 December 2022, A/Res/77/247.
2 UNGA Res 77/247, 30 December 2022, A/Res/77/247, para 18.
3
4. Namibia respectfully asks the Court to adopt an expansive interpretation of the five questions
referred to it by the General Assembly. At this point in proceedings, Namibia will focus on the
first and fourth questions referred to the Court - on the 'violation by Israel of the right of the
Palestinian people to self-determination' and the illegality of the Israeli occupation. Namibia
also examines in detail the third question regarding 'discriminatory legislation and measures'
adopted by Israel with respect to the Palestinian people. The three questions are interrelated but
distinct.
a. In relation to the first two questions, Namibia draws on the precedent of the Court's
decision in Legal Consequences for States of the Continued Presence of South Africa in
Namibia (1971) (the Namibia Advisory Opinion). Namibia considers that Israel's
continued administration of the former Mandate of Palestine from the Meditrranean Sea
to the Jordan River, which has been held on sacred trust for the indigenous Palestinian
people, and its occupation of the Palestinian territory since 1967. denies the right of the
Palestinian people as a whole to self-determination. Israel 's occupation was illegal ab
initio and this illegality has been further compounded by Israel's prolonged occupation,
colonization and annexation of the Palestinian territory and its other breaches of
peremptory norms.
b. In relation to the third question, Namibia submits that Israel's adoption of
'discriminatory legislation and measures' against Palestinians in the Occupied
Palestinian Territory and Palestinian people, as a whole, amounts to the imposition of~
system of aparthejd, whicb also violates the right of the Palestinian people to selfdetermination
among other fundamental rights and freedoms.
5. In this respect, it is Namibia's view that Israel's policies and practices violate the prohibition of
apartheid in customary international law and Article 3 of the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD), both of which bind Israel.3 Namibia
respectfully requests that the Court make such a determination in the present proceedings and
that the Court also sets out the legal consequences that flow from such a determination.
6. While Namibia has decided to focus in this written statement on the prohibition of apartheid in
customary international law and Article 3 of CERD, we also draw attention to the fact that
apartheid gives rise to individual criminal re ponsibility as a crime again t humanity under the
Rome Statute of the International Criminal Court.4 The fundamental features of apartheid that
Namibia addresses are also key features of the crime of apartheid under the Rome Statute.
7. Namibia files this written statement for the following reasons.
a. Namibia believes that clarification of the existence, definition, and scope of application of
the wrong of apartheid under international law is of critical importance in ensuring the
eradication of such an egregious form of racial discrimination. This is particularly so in the
light of its peremptory character, as well as in the light of its criminalization. Namibia
respectfully asks the Court to provide this clarification in the exercise of its functions as the
principal judicial organ of the United Nations.
3 International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into
force 4 January 1969) 660 UNTS 195 (CERD).
4 Article 7(l)U), Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNTS 3. The State of Palestine acceded to the Rome Statute on 2 January 2015. State parties to the Apartheid Convention are also
bound to criminalize apartheid, and to bring to trial and punish individuals responsible for the crime of apartheid - Article 4,
International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entered into
force 18 July 1976) 1015 UNTS 243.
4
b. Namibia emphasizes the historical role of the General Assembly in relation to
decolonization generally and the fight against racial discrimination, in particular. This
Advisory Opinion will be valuable to the General Assembly in the continuing exercise of
this role.
c. Namibia has its own historical experience of systematic racial discrimination imposed by
South Africa both before and after the termination by the General Assembly of the League
of Nations Mandate in South West Africa in 1966.5 In Resolution 2074 (XX) of 1965, the
General Assembly condemned 'the policies of apartheid and racial discrimination practiced
by the Government of South Africa in South West Africa, which constitute a crime against
humanity. '6 These policies - imposed by the regime in South Africa on the people of
Namibia - continued until independence on 2 l March 1990.
8. It is in the light of these considerations that Namibia voted in favour of Resolution 77/247 in the
General Assembly,7 which included the General Assembly's request for an Advisory Opinion.
On this occasion, the Permanent Representative of the Government of Namibia stated:
"The responsibility of the UN towards the resolution of the question of Palestine is a
permanent one. We therefore support and have full respect for all UN-mandated processes
geared at bringing about a resolution to this complex question. It is therefore perplexing that
Israel continues to be shielded, despite being inconsistent flagrant violation of international
law, and humanitarian and international human rights law. And in so doing, denying the
Palestinian people their most basic rights. This blatant inconsistency remains difficult to
fathom.
The Government of Namibia continues to implore Israel to work with international systems,
processes and institutions to allow them urifettered access to carry out their responsibilities
in accordance with their respective mandates, including humanitarian work. In the same
vein, we further call on Israel to honour its obligations by its membership to the UN and in
accordance with international law and international human rights law. The practice of
unabated continued annexation and expansion of settlements is untenable. War is destructive,
it maims, injures and destroys. Oppression is unkind. Occupation is not a means by which
peace is birthed.
It is in this vein that Namibia welcomes, as a concrete next step, the proposal to request an
advisory opinion from the International Court of Justice on the legal consequences of Israel's
prolonged occupation and colonization of the Palestinian Territory, including East
Jerusalem, and its violation of the Palestinian people's right to self-determination and
policies and measures of discrimination against them. With the passing of 20 years since the
General Assembly last asked the !CJ for an advisory opinion regarding the Palestine
question, we support the decision to once again seek guidance from the international legal
system on how best to seek recourse for the long-oppressed people of Palestine. "
9. This written statement is structured in the following way:
5 UNGA Res 2145 (XXI), 27 October 1966, A/Res/2145. See Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (/970), Advisory Opinion, I.CJ. Reports
1971,p. 16.
6 UNGA Res 2074 (XX), 17 December 1965, A/Res/2074, para 4.
7 UNGA Res 77/247, 30 December 2022, A/Res/77/247.
5
a. Section ff will briefly consider the jurisdiction of the Court. It is Namibia's view that the
Court is competent to issue this Advisory Opinion and that no compelling reasons prevent it
from doing so.
b. ection flI will address the (A) existence; (B) definition; and (C) geographical and territorial
scope of application of the prohibition of apartheid. It first sets out (A) the prohibition of
apartheid in customary international law and Article 3 of CERD. Thereafter, it will show
(B) that the definition of apartheid contained in both of these rules is based on the definition
set out in the Apartheid Convention of 1973. Finally, it will demonstrate (C) that the
prohibition in custom and Article 3 of CERD is applicable to Israel in its treatment of the
Palestinian people, including the denial of their right to self-determination.
c. ection IV applies the prohibition on apartheid in custom and Article 3 of CERD to Israel's
treatment of the Palestinian people. It sets out (A) the elements of the wrong. It then
addresses (B) its material elements; (C) the question of racial groups; and (D) the specific
intent requirement of apartheid. In relation to (B), it shows how Israel's practices fulfil, in
particular, the material elements set out in Articles 2( c) and 2( d) of the Apartheid
Convention. In relation to (C), it shows that these practices are committed against a racial
group for the benefit of another racial group. Finally, in relation to (D), it shows that these
practices were and are being committed with the specific intent of the wrong of apartheid.
d. Section V addresses the consequences that arise from Israel's imposition of an apartheid
regime against Palestinians in the Occupied Palestinian Territory and the Palestinian people,
as a whole. This entails consequences for Israel, for third States, and for the United Nations.
This includes those consequences that follow from the peremptory status of the prohibition
of apartheid under customary international law.
e. ' ection VI addresses the illegality of Israel's continued administration of the Occupied
Palestinian Territory, and specifically compares the current situation in the Occupied
Palestinian Territory with that set out in the Legal Consequences for States of the Continued
Presence of South Africa in Namibia (1971).
f. Section VII sets out the consequences that arise for Israel, for third States, and for the
United Nations from a finding of illegal occupation.
g. ection YIU sets out conclusions and a summary.
10. Namibia reserves the right to address other substantive questions of international law in its
comments on the written statements filed by other States and international organizations in these
proceedings.
II. Tm: JURISDICTION OF THE COURT
11. It is Namibia's view that the Court is jurisdictionally competent to issue this Advisory Opinion
and that no compelling reasons prevent it from doing so.
12. Article 65(1) of the Statute of the Court provides:
The Court may give an advisory opinion on any legal question at the request of whatever
body may be authorized by or in accordance with the Charter of the United Nations to make
such a request.
13. Article 96(1) of the Charter of the United Nations provides:
6
The General Assembly ... may request the International Court of Justice to give an advisory
opinion on any legal question.
14. As to the Court's jurisdiction in these proceedings:
a. First, the present request was duly adopted by the General Assembly in Resolution 77/247,8
and was transmitted to the Court in accordance with Article 65(2) of the Statute of the
Court.
b. Second, each aspect of the request concerns a 'legal question,' as required by Article 65(1)
of the Statute of the Court and Article 96(1) of the Charter of the United Nations. Resolution
77/247 asks the Court to render its opinion on the legal consequences arising from a
specified set of the State of Israel's measures and practices and on the legal status of the
occupation of the Palestinian territory.
c. Third, although the request relates to matters of deep political concern, the Court has
consistently found 'that the fact that a question has political aspects does not suffice to
deprive it of its character as a legal question. '9 The Court has also held that
Whatever its political aspects, the Court cannot refuse to respond to the legal elements of
a question which invites it to discharge an essentially judicial task, namely, in the present
case, an assessment of an act by reference to international law. 10
15. Even vJhere there is juri. diction, the ourt ha interpreted Article 65( I) of its Statute as entailing
discretion to decline to give an Advisory Opinion in certa in circumstances. 11 This is to 'protect
the integrity of lh • Court's judicial function as the principal judicial organ of the United
Nations. ' 12 However the Court has consistently held that only 'compelling reasons' may lead
the ou rl to refu e to give its 0pinion.13
16. In the present proceedings, there are no such compelling reasons in relation to the integrity of the
Court's judicial function:
a. First, the request relates to matters of longstanding importance to the work and functions of
the General Assembly. At least since Resolution 181 (II) of 1947, the question of Palestine
has been a central aspect of the General Assembly's work. The General Assembly has
consistently expressed support to the inalienable rights of the Palestinian people, including
to self-determination, over decades, notably since Resolution 3236 (XXIX) of 1974, 14
8 UNGA Res 77/247, 30 December 2022, A/Res/77/247.
9 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion,
I.CJ Reports 2010, p. 403, para 27; Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal,
Advisory Opinion, I.CJ Reports 1973, p. 172, para. 14
1° Kosovo Advisory Opinion, p. 403, para 27.
11 Wall Advisory Opinion, p. 156, para 44; Kosovo Advisory Opinion, pp. 415-416, para 29; legal Consequences of the Separation
of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.CJ Reports 2019, p. 95, para 63.
12 Chagos Advisory Opinion, p. 95, para 63.
13 Wall Advisory Opinion, p. 156, para 44; Kosovo Advisory Opinion, p. 416, para 30; Chagos Advisory Opinion, p. 95, para 65.
14 UNGA Res 3236 (XXIX), 22 November 1974, A/Res/3236 (XXIX).
7
including through the Committee on the Exercise of the Inalienable Rights of the Palestinian
People, established by Resolution 3376 of 1975.15
b. Second, providing an answer to the legal questions in the request will be of particular value
to the General Assembly in its continued performance of its work and functions. Moreover,
and in any event, the Court has consistently held that it is not for it - the Court - 'to purport
to decide whether or not an advisory opinion is needed by the Assembly for the performance
of its functions. The General Assembly has the right to decide for itself on the usefulness of
an opinion in the light of its own needs.' 16
c. Third, the Court will be able to make all necessary factual findings in relation to answering
the request. It has received a dossier from the Secretariat of the United Nations, comprising
some of the 'relevant United Nations documents published from 1967, being the start of the
occupation, through to the present.' 17 The Court will also receive extensive, relevant
information in the form of written statements, written comments and oral statements from
States and international organizations in these proceedings. 18
17. In Namibia's view, it follows that the Court has jurisdiction to render an Advisory Opinion and
that no compelling reasons prevent the Court from doing so.
Ill. THE PROHIBITION OF APARTHEID IN INTERNATIONAL LAW
18. The General Assembly's request refers to the legal consequences of Israel's 'adoption of related
discriminatory legislation and measures.' In considering this aspect of the request, it would be
particularly valuable for the Court to clarify the international legal framework concerning a
distinctive and egregious discriminatory policy and practice - the imposition of an apartheid
regime toward Palestinian ..
19. This part of the written statement addresses: (A) the existence of the prohibition of apartheid in
customary international law and in Article 3 of ICERD; (B) the definition of apartheid that
applies in relation to these two rules; and (C) their geographical and territorial scope of
application.
A. The Existence of the Prohibition of Apartheid in International Law
Apartheid in u tomary In ternational Law
20. In 1962, the General Assembly established a Special Committee on the Policies of Apartheid of
the Government of the Republic of South Africa. 19 The following year, the Committee Reported
on the 'mass of discriminatory and repressive legislation' adopted by South Africa. This
legislation, together with the State's administrative and judicial practices, established a regime
of racial domination throughout the country and Namibia.
15 UNGA Res 3376 (XXX), 10 November 1975, A/Res/3376 (XXX).
16 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.CJ Reports 1996, p. 226, para 16; Chagos Advisory
Opinion, p. 95, para 76.
17 United Nations Secretariat, Introductory Note in relation to the Palestine Advisory Proceedings, para 5.
18 Similarly, Chagos Advisory Opinion, p. 95, para 73.
19 UNGA Res 1761 (XVII), 6 November 1962, A/Res/1761.
8
21. In response to these developments, a rule of customary international law prohibiting the practice
of apartheid crystallized. In particular, the existence of such a prohibition is evident in the
international community's unequivocal rejection from the early 1960s to the end of the 1980s of
the practice of apartheid by South Africa.
22. The central forum for the crystallization of the prohibition of apartheid was the United Nations.
As to the General Assembly, its Declaration on the Elimination of All Forms of Racial
Discrimination, adopted in 1963, called for an 'end ... without delay to ftovernmental and other
public policies of racial segregation and especially policies of apartheid.' 0 This was followed by
a series of resolution in the General Assembly whi h condemned South Africa's practices and
policies of apartheid 21 and which pa sed with large majoritie . Re oluLion 2396 of 1968, for
instance, which reiterated the Assembly's 'condemnation of the policies of apartheid practiced
by the Government of uth Africa as a crime against humanity', was adopted by 85 votes in
favour to two votes against with 14 abstentions.22 Re olution 43/50 of 1988, which also
condemned South Africa's 'racist regime and its policies and practices of apartheid' was
adopted by 144 votes in favour to 1 vote against, with 9 abstentions.23
23. In the Security Council, Resolution 473 of 1980 unanimously reaffirmed that:
[T]he policy of apartheid is a crime against the conscience and dignity of mankind and is
incompatible with the rights and dignity of man, the Charter of the United Nations and the
Universal Declaration of Human Rights, and seriously disturbs international peace and
. 24 secunty.
24. The relevant parts of these resolutions of the General Assembly and Security Council have a
normative and declarative character as to the illegality of practices of apartheid under
international law.25 They provide evidence of state practice and opinio Juris of States
consolidating over time towards virtually universal acceptance of the wrongfulness of
apartheid.26 Indeed, with the fall of the last apartheid gov rnment in South Africa and the
country's first democratic election in 1994, no State today maintains the permissibility of
imposing such a policy. In his 4th Report, Professor Dire Tladi, the Special Rapporteur on
Peremptory Norms of General International Law of the International Law Commission (ILC),
articulated that the resolutions adopted at the United Nations signify the 'complete and total
rejection of the policy of apartheid and the discriminatory practices attendant to it'27 by the
international community.
25. As a rule of customary international law, the prohibition of apartheid binds all States, including
Israel.
20 Article 5, UNGA Res 1904 (XVIII), 20 November 1963, A/Res/18/1904.
21 See e.g. UNGA Res 2054 (XX), 15 December 1965, A/Res/2054(XX), para 4; UNGA Res 2074 (XX), 17 December 1965,
A/Res/2074 (XX), para 4; UNGA Res 2202 (XXI), 16 December 1966, A/Res/2202 (XXI), para 1; UNGA Res 2307 (XXII), 13
December 1967, A/Res/2307 (XXII), para 1; UNGA Res 2396 (XXXIII), 2 December 1968, A/Res/2396, para 1.
22 United Nations Digital Library, Voting Data on UNGA Res 2396 of 1968.
23 United Nations Digital Library, Voting Data on UNGA Res 43/50 of 1988.
24 UNSC Res 4 73, 13 June 1980, S/Res/4 73 (1980), para 3.
25 As in relation to the right of self-determination in the Chagos Advisory Opinion, p. 95, paras 151-153 .
26 See similarly Chagos Advisory Opinion, p. 95, para 142.
27 ILC, 'Fourth Report on Peremptory Norms of General International Law (Jus Cogens) by Dire Tladi, Special Rapporteur', 31
January 2019, A/CN.4.727, para 98.
9
ii. Apa1theid under Article of ICERD
26. The reference in the request to Israel's adoption of 'related discriminatory legislation and
measures' also entails consideration of the provisions of ICERD - a cornerstone of the modem
system of international human rights law. Indeed, at least some of the political impetus behind
the adoption of ICERD itself emerged from the international community's deep abhorrence of
South Africa's practices of racial discrimination.28
27. In addition to its general regulation of racial discrimination, ICERD specifically addresses
apartheid in the following terms:
States Parties particularly condemn racial segregation and apartheid and undertake to
prevent, prohibit and eradicate all practices of this nature in territories under their
jurisdiction. 29
28. Israel ratified ICERD on 3 January I 979.30 There are no relevant reservations. It follows that
Israel is bound by the obligation in Article 3 to prevent, prohibit and eradicate all practices of
apartheid in territories under its jurisdiction.
B. The Definition of Apartheid in Custom and ICERD
29. The previous sub-section noted the existence of the prohibition of apartheid in custom and in
Article 3 of ICERD. This sub-section addresses the definition of apartheid applicable to each
rule.
30. As to the customary rule, the target of States' condemnation throughout the l 960s-1980s was the
racially discriminatory policies of South Africa. However, this practice does not shed much light
on the meaning of the term itself. Similarly, ICERD does not provide a definition of 'apartheid',
as prohibited by Article 3 of ICERD. For these reasons, it would be of particular value for the
Court to advise on the meaning of the prohibition of apartheid in international law. Clarity on the
definition would assist the General Assembly in performing its functions. It would also be of
great assistance to States in complying with their international obligations and in cooperating to
bring to an end any such practices by other States.
31. It is submitted that it is the definition of apartheid in the Apartheid Convention of 1973 that
applies to the prohibition of apartheid in customary international law and to Article 3 of ICERD.
32. The Apartheid Convention, which was negotiated and drafted in the United Nations' Third
Committee between 1971 and 1973, provides a definition of apartheid in Article 2:
For the purpose of the present Convention, the term 'the crime of apartheid', which shall
include similar policies and practices of racial segregation and discrimination as practised
in southern Africa, shall apply to the following inhuman acts committed for the purpose of
establishing and maintaining domination by one racial group of persons over any other
racial group of persons and systematically oppressing them:
28 Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary (2016)
236.
29 Article 3, ICERD.
30 The State of Palestine acceded to CERD on 2 April 2014.
10
a. denial to a member or members of a racial group or groups of the right to life and
liberty of person:
i. by murder of members of a racial group or groups,·
ii. by the infliction upon the members of a racial group or groups of serious bodily
or mental harm, by the infringement of their freedom or dignity, or by subjecting
them to torture or to cruel, inhuman or degrading treatment or punishment,·
iii. by arbitrary arrest and illegal imprisonment of the members of a racial group or
groups,·
b. deliberate imposition on a racial group or groups of living conditions calculated to
cause its or their physical destruction in whole or in part;
c. any legislative measures and other measures calculated to prevent a racial group or
groups from participation in the political, social, economic and cultural life of the
country and the deliberate creation of conditions preventing the full development of
such a group or groups, in particular by denying to members of a racial group or
groups basic human rights and .freedoms, including the right to work, the right to form
recognized trade unions, the right to education, the right to leave and to return to their
country, the right to a nationality, the right to freedom of movement and residence, the
right to freedom of opinion and expression, and the right to freedom of peaceful
assembly and association,·
d. any measures, including legislative measures, designed to divide the population along
racial lines by the creation of separate reserves and ghettos for the members of a racial
group or groups, the prohibition of mixed marriages among members of various racial
groups, the expropriation of landed property belonging to a racial group or groups or
to members thereof;
e. exploitation of the labour of the members of a racial group or groups, in particular by
submitting them to forced labour;
f. persecution of organizations and persons by depriving them of fundamental rights and
freedoms, because they oppose apartheid. 31
33. For State Parties to the Apartheid Convention - numbering l 09 States, including Palestine but
not including Israel - this definition determines the applicability of the obligations set out
therein. The Apartheid Convention is, in essence, a suppression convention - it requires State
Parties to suppress, di courage, and prosecute acts of apartheid.32 That is, it aims to ensure the
criminalization and punishment of the crime of apartheid.
34. To be clear, the argument is not that the Apartheid Convention - and its suppression obligations
- are binding on Israel or any other State that is not a party to it. Rather, it is that this definition
of apartheid informs the scope of the customary prohibition and the obligation in Article 3 of
ICERD. Each will be taken in turn.
i. The Relevance of the Definition in Article 2 of the Apartheid Convention to the Prohibition of
Apartheid in Customary International Law
31 Article 2, Apartheid Convention.
32 Article 4, Apartheid Convention.
11
35. To take the customary prohibition first, the Third Committee of the United Nations' work in
drafting and adopting the Apartheid Convention was part of the same programme of legal and
political work that led to the crystallization of the customary rule. In this respect, the Preamble
to the Apartheid Convention refers explicitly to the condemnation of apartheid in Resolutions of
the General Assembly and Security Council that were critical to the crystallization of the
customary rule .33 As Jackson note :
There is no evidence indicating that States had in mind two concepts in this process- that is,
one definition in relation to the crystallizing customary prohibition binding States and
another, different definition for the attempt at criminalization in the Apartheid Convention. 34
36. In other words, the definition of apartheid set out in the Apartheid Convention entails what
States understood themselves to be condemning in their practice that forms the basis of the
customary prohibition.
37. Moreover, within the Third Committee of the United Nations, the definition was adopted in
1973 by 88 votes to 3, with 21 abstentions.35 This represents a sufficiently general and
representative understanding among States of the term's meaning at the time. In addition, there
has been no recent, general practice of States which may have since provoked an evolution in the
term's meaning.
38. On this basis, the definition of apartheid m the Apartheid Convention 1s applicable to the
customary prohibition.
ii. The Relevance of the Definition in Article 2 of the Aparth
39. The same is true in relation to the reference to apartheid in Article 3 of lCERD. ICERD entered
into force on 4 January 1969. In negotiating the Apartheid Convention between 1971 and 1973,
it is clear that States also had in mind their pre-existing treaty obligations under Article 3 of
ICERD. This is evident in the Preambles of earlier drafts of the Convention submitted by
different States in I 97 l 36 and 1972 37 as well as in the final text adopted in 1973. That final text
explicitly refers to the obligation und r Article 3 of I RD on State Parties to ' prevent, prohibit
and eradicate all practices of this nature in territories under their jurisdiction.'38
40. For this reason, it is correct to understand the Apartheid Convention as an instrument aimed at
the criminalization - using the same definition of apartheid - of practices addressed by Article 3
33 Preamble, ICERD:
Observing that the General Assembly of the United Nations has adopted a number of resolutions in which the policies
and practices of apartheid are condemned as a crime against humanity
Observing that the Security Council has emphasized that apartheid and its continued intensification and expansion
seriously disturb and threaten international peace and security.
34 Jackson, 'The Definition of Apartheid in Customary International Law and the International Convention on the Elimination of
All Forms of Racial Discrimination' (2022) 71 ICLQ 831, 839.
35 UNGA, Report of the Third Committee (Part 11), 'Draft Convention on the Suppression and Punishment of the Crime of
Apartheid', 19 November 1973, A/9233/Add. l, para 28.
36 UNGA Third Committee, 'Guinea and Union of Soviet Socialist Republics: draft of a Convention on the suppression and
punishment of the crime of apartheid ' , 28 October 1971 , A/C.3/L.1871.
37 UNGA Third Committee, 'Guinea, Nigeria and the Union of Soviet Socialist Republics: revised draft Convention on the
suppression and punishment of the crime of apartheid', 24 October 1972, A/C.3/L.1942/Rev. l .
38 Preamble, ICERD.
12
of ICERD.39 For those States that were parties to ICERD at the time, this entails sub equent
practice that contributes to 'the clarification of the meaning of a treaty' ,40 as a supplementary
means of interpretation under Article 32 of the Vienna Convention on the Law ofTreaties.41 As
the ILC noted in its recent Conclusions on Subsequent Agreements and Subsequent Practice in
relation to the Interpretation of Treaties:
A subsequent practice as a supplementary means of interpretation under article 32 consists
of conduct by one or more parties in the application of the treaty, after its conclusion. 42
41. As set out previously, within the Third Committee of the United Nations, the definition of
apartheid set out in the Apartheid Convention wa adopted in 1973 by 88 votes to 3, with 21
abstentions.43 Many of the States voting in favour of the definition were, at the time, State
Parties to ICERD - and this vote should be understood as conduct of those States which
indicates their understanding of the meaning of the term 'apartheid' in Article 3 of ICERD.
Moreover, there appears to have been no attempt by other State Parties to ICERD to establish an
alternative definition.
42. Since 1973, there has been no general State practice in relation to the meaning of Article 3 of
ICERD that employs a different definition.44 Moreover, as discussed in the following paragraph,
the drafting and adoption of the Rome Statute of the International Criminal Court did not affect
the definition of States' pre-existing treaty obligation in ICERD. Finally, as to any practice of
the Committee on the Elimination of Racial Discrimination itself, as opposed to States,
Thornberry notes that 'clearer specification of the meaning of apartheid has hardly been
forthcoming in [CERD Committee] practice'.45
43. In sum, the definition of apartheid in the Apartheid Convention of 1973 is applicable to the
obligation under Article 3 of ICERD of all State Parties 'to prevent, prohibit and eradicate all
practices of this nature in territories under their jurisdiction.'
111. Aparlheid in lhe Rome
39 Jackson, 'The Definition of Apartheid in Customary International Law and the International Convention on the Elimination of
All Forms of Racial Discrimination' (2022) 71 ICLQ 831,841.
4° Conclusion 7(2), ILC, 'Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of
treaties, with commentaries' (2018) 11(2) YILC.
41 Article 32, Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS
331.
42 Conclusion 4(3), ILC, 'Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of
treaties, with commentaries' (2018) 11(2) YILC. The Commentaries specify - para 35 - that:
Thus, "subsequent practice" in the broad sense (under article 32) covers any application of the treaty by one or more
(but not all) parties. II can take various forms. Such "conduct by one or more parties in the application of the treaty"
may, in particular, consist of a direct application of the treaty in question, conduct that is attributable lo a State party as
an application of the treaty, a statement or a judicial pronouncement regarding its interpretation or application.
43 UNGA, Report of the Third Committee (Part II), 'Draft Convention on the Suppression and Punishment of the Crime of
Apartheid', 19 November 1973, A/9233/Add. l, para 28.
44 In its Interstate Communication pursuant to Article 11 of ICERD, the State of Palestine adopts the view articulated in this
written statement - that the Apartheid Convention 'provides the best definition for the purposes of interpreting Art. 3 ICERD' -
CERD, 'Communication submitted to the Committee on the Elimination of All Forms of Racial Discrimination by the State of
Palestine pursuant to Article 11 of the International Convention on the Elimination of all Forms of Racial Discrimination', 23
April 2018, ICERDJSC-2018/3, para 586.
45 Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary (2016)
236.
13
44. To conclude, it may be noted that the Rome Statute of the International Criminal Court
recognises "the crime of apartheid" as a crime against humanity under Article 7 .. In Article 7(2)
it defines the 'crime of apartheid' as:
... inhumane acts of a character similar to those referred to in paragraph 1, committed in the
context of an institutionalized regime of systematic oppression and domination by one racial
group over any other racial group or groups and committed with the intention of maintaining
that regime.
45. This definition, which relates to individual criminal responsibility under international law, is
quite similar to that prescribed in the Apartheid Convention. In relation to the definition of the
prohibition of apartheid in custom and Article 3 of CERD, a key point is that there is no
evidence that States, when negotiating and drafting Article 7 of the Rome Statute, understood
themselves to also be putting forward an interpretation relevant to the customary rule or Article
3 of ICERD.46 For that reason, the content of the obligations binding States remains unaffected
by the adoption of a slightly different definition for the purposes of individual criminal
responsibility under the Rome Statute.
46. Nonetheless, given the similarities between the two definitions, any clarification that the Court
can provide on the meaning and application of the customary rule and Article 3 of CERD will
also be of particular value to the interpretation and application of the Rome Statute.47
iv. Apartheid in Additional Protocol I to the Geneva Conventions
47. For completeness, Namibia points out that under Article 85(4)(c) of Additional Protocol I to the
Geneva Conventions, apartheid is considered a grave breach. The Commentary to the Geneva
Conventions indicates that acts of apartheid were already prohibited as outrages upon human
dignity and grave breaches under the Geneva Conventions of 1949.48 Notably, the Fourth
Geneva Convention is directly binding on Israel as a State party to the Convention and is also
binding as customary international law.
C. The Scope of the Prohibition of Apartheid
48. Having addressed the existence and definition of apartheid in relation to the rule-binding States
in customary international law and Article 3 of ICERD, the present sub-section addresses each
rule's geographical and territorial scope.
49. First, although these rules were generated by the international community's response to the
practices of a particular State, there is no reason to think that their geographical scope of
application is limited to either the territory of South Africa or the region of southern Africa.49
Moreover, their application is not limited to the commission by a particular State - South Africa
46 Jackson, 'The Definition of Apartheid in Customary International Law and the International Convention on the Elimination of
All Forms of Racial Discrimination' (2022) 71 ICLQ 831, 844.
47 In its ruling of 5 February 2021, the Pre-Trial Chamber of the ICC held that the Court may exercise its criminal jurisdiction in
the Situation in Palestine, and that the territorial scope of this jurisdiction extends to 'the territories occupied by Israel since 1967,
namely Gaza and the West Bank, including East Jerusalem': ICC, 'Decision on the 'Prosecution request pursuant to article 19(3)
for a ruling on the Court's territorial jurisdiction in Palestine" (Pre-Trial Chamber I, Doc No ICC-01/18, 5 February 2021) p. 60.
48 Sandoz et al, 'Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949' (1986),
paras 3513-3515.
49 This is further confirmed by the Rome Statute, which omits any reference to southern Africa in its definition of apartheid as a
crime against humanity.
14
- in a particular period. The prohibition on apartheid is a fundamental principle of the
international legal order, confirmed by the near-universal ratification of CERD and, as noted in
Section V of this written statement, its peremptory status under general international law. The
rules bind States in general, in accordance with their respective characters - all States for the
customary rule and State Parties to ICERD for the treaty rule. 50
50. Second, both the customary rule and the rule in Article 3 of ICERD apply extraterritorially and
in situations of occupation to which the rules of international humanitarian law are applicable:
a. As to the customary rule, this is evident in the fact that the international community's
denunciation of the regime in South Africa's practices extended to its imposition of
apartheid in Namibia. The General Assembly, for instance, repeatedly condemned these
extraterritorial practices, both prior to51 and after the termination of the League Mandate in
1966.52 Likewise, the Security Council condemned the mea ure taken by South Africa to
enforce its policy of apartheid beyond its borders.53 Moreover, in the Namibia Advisory
Opinion, the Court held that South Africa's implementation of apartheid in Namibia
constituted 'a flagrant violation of the purposes and principles of the Charter' of the United
Nations.54
b. As to Article 3 of ICERD, the text itself entails an obligation on State Parties 'to prevent,
prohibit and eradicate all practices [ of apartheid] in territories under their jurisdiction.' In
the practice of ICERD, this straightforwardly includes situations of occupation,55 as in the
present proceedings. This is in I ine with the consistent jurisprudence of the Court, which has
repeatedly confirmed the extraterritorial application of international human rights law,
including in situations of occupation to which international humanitarian law is applicable. 56
51. That Article 3 of ICERD on apartheid applies to Israel's policies and practices in both Israel and
the Occupied Palestinian Territory is further established in the Concluding Observations of the
CERD Committee to Israel, in 2019. There the Committee in paragraph 23:
Draws the State party's attention to its general recommendation 19 (1995) concerning the
prevention, prohibition and eradication of all policies and practices of racial segregation
and apartheid, and urges the State party to give full effect to article 3 of the Convention to
eradicate all forms of segregation between Jewish and non-Jewish communities and any such
policies or practices which severely and disproportionately affect the Palestinian population
in Israel proper and in the Occupied Palestinian Territory. 57
50 See further CERD, 'General Recommendation XIX: The Prevention, Prohibition and Eradication of Racial Segregation and
Apartheid', A/50/18 (1995) para I.
51 UNGA Res 2074 (XX), 17 December 1965, A/Res/2074, para 4.
52 See also Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 26th sess, Supp No 18, A/8418
( 1971) 36; Namibia Advisory Opinion, paras 130-131.
53 UNSC Res 282, 23 July 1970, S/Res/282 (recital 2).
54 Namibia Advisory Opinion, para 131 .
55 Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary (2016)
259.
56 Wall Advisory Opinion, p. 156, paras 106, 111; Armed Activities on the Terriloty of the Congo (Democratic Republic of the
Congo v. Uganda), Judgment, I.CJ. Reports 2005, p. 168, para 216.
57 CERD/C/ISR/CO/17-19, Committee on the Elimination of Racial Discrimination, Concluding observationsObservations on the
combined seventeenthCombined Seventeenth to nineteenth reportsNineteenth Reports of Israel (12 December 2019), 27 January
2020, CERD/C/ISR/CO/17-19, para. 23.
15
52. Significantly, the observations point to policies and practices of racial discrimination,
segregation and apartheid as affecting the Palestinian population across two jurisdictions, both in
Israel and the Occupied Palestinian Territory. Further, the CERD Committee has established a
Conciliation Committee to examine violations of Article 3 including 'policies of racial
segregation and apartheid' between the State of Palestine and Israel.58
IV. PRACTICES OF APARTHEID AGAINST THE PALESTINIAN PEOPLE
53. This section applies the prohibition of apartheid in custom and Article 3 of ICERD to the
situation at issue in these proceedings. To reiterate, each of these rules, whose definition is
provided by Article 2 of the Apartheid Convention, is binding on Israel and is applicable within
territories subject to its jurisdiction, including the territory inside the Green Line (Israel proper),
the Occupied Palestinian Territory, and the occupied Syrian Golan. In relation to the latter,
Namibia draws attention to the similarity of Israeli policies and practices towards Syrians
therein, including prolonged occupation, illegal settlements and annexation, denial of the right of
return, and other discriminatory measures.
54. Namibia notes that there is no constraint within the General Assembly's question limiting the
examination of apartheid to the Occupied Palestinian Territory alone. In particular, Namibia
draws attention to the use of the conjunctive 'and' in the phrasing of the request - 'and from its
adoption of related discriminatory legislation and measures - as presenting a separate standalone
question. Namibia respectfully requests consideration of discriminatory Israeli measures with
respect of the Palestinian people as a whole.
55. In this respect, Namibia submits that Israel is in breach of its obligations under the customary
prohibition of apartheid and Article 3 of ICERD. It has imposed a system of apartheid on (i)
Palestinians within the Occupied Palestinian Territory, specifically, and (ii) the Palestinian
people, as a whole.
a. Sub-section A sets out an overview of the elements of the prohibition of apartheid in
international law.
b. Sub-section B addresses its material elements. It submits that Israel's practices fulfil, in
particular, the material elements set out in Articles 2( c) and 2( d) of the Apartheid
Convention. They entail inhuman acts committed against Palestinians in the Occupied
Palestinian Territory, specifically, and the Palestinian people as a whole.
c. Sub-section C concerns the question of racial groups. It submits that Israel's practices are
being committed against a racial group, as required by the definition of apartheid. The
relevant group is (i) Palestinians in the Occupied Palestinian Territory, and (ii) the
Palestinian people, as a whole, comprising Palestinians who have been fragmented in the
Occupied Palestinian Territory, Palestinian citizens of Israel, and Palestinian refugees and
exiles). Moreover, these practices are undertaken for the benefit of another racial group -
Jewish Israelis in the Occupied Palestinian Territory and in Israel.
58 CERD/C/100/3, Inter-state communication submitted by the State of Palestine against Israel (12 December 2019) para. B(I)
2.6), available at: httpsJ/1vww.ohchr.org/sitcs/dc fa ul t/liles/Documents/HRBodies/CERD
/ ERl - -100-3.pdf.
16
d. Sub-section D discusses the specific intent requirement of apartheid. It submits that
Israel's practices were and are being committed with the specific intent of the wrong of
apartheid.
A. Elements of the Prohibition of Apartheid
56. In accordance with the definition set out above, three elements make up the prohibition of
apartheid in custom and the rule in Article 3 ofICERD:
a. First, the State - through its organs and agents - must commit one or more of the inhuman
acts of apartheid, as set out in Articles 2(a)-(f) of the Apartheid Convention. In many
instances, these enumerated inhuman acts entail violations of fundamental rights and
freedoms protected by international law. This may be understood as the material element
of the wrong of apartheid. 59
b. Second, these inhuman acts must be committed against a racial group or members of that
racial group.60
c. Third, the State - through its organs and agents - must commit these inhuman acts 'for the
purpose of establishing and maintaining domination by one racial group of persons over
any other racial group of persons and systematically oppressing them', as set out in Article
2 of the Apartheid Convention. This may be understood as the specific intent element of
the wrong of apartheid.61
57. In relation to these elements, the Court has before it the extensive factual evidence provided by
the United Nations Secretariat, and will also have detailed factual evidence provided by
participants in these proceedings.
58. This section draws attention to factual evidence of certain specific policies, practices, and
statements that together demonstrate that the threshold of the prohibition of apartheid has been
met. Almost all of the material referred to below is included in the Secretariat's dossier, and
comes from an official United Nations body or institution. Any other materials referred to are
readily available online, including the reports of Palestinian, Israeli, and international nongovernmental
organizations that have addressed the issue of apartheid in the Occupied
Palestinian Territories in detail.62
59 See analogously Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I. CJ. Reports 2007, p. 43, paras 276, 319 in relation to the material element
of genocide.
60 The inhuman act set out in Article 2(f) of the Apartheid Convention is not limited to commission against the racial group or its
members: 'Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose
apartheid.'
61 See analogously Bosnia v. Serbia, p. 43, para 187.
62 B'Tselem, 'A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This is apartheid' (Position Paper,
12 January 2021) 4; Al-Haq, 'Israeli Apartheid: Tool of Zionist Settler Colonialism' (2022) 99-110; Human Rights Watch, 'A
Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution' (Report, 27 April 2021) 176-183; Amnesty
International, 'Israel's Apartheid against Palestinians: Cruel System of Domination and Crime against Humanity' (Report, I
February 2022) 113-162.
17
B. The Material Element of Apartheid
59. The commission by the State of any of apartheid's enumerated inhuman acts, as set out in
Article 2(a)-(f) of the Apartheid Convention, will fulfil the material element of the prohibition of
apartheid under international law.
60. The present sub-section focuses on two elements of the prohibition of apartheid. These are the
material elements in Articles 2(c) and 2(d) of the Apartheid Convention.
61. In passing, it may be noted that in the factual record before the Court, there is evidence of the
commission of other enumerated wrongful acts of apartheid. This includes extensive practices of
unlawful deprivation of liberty in breach of Article 2(a)(iii) of the Apartheid Convention.63 It
also includes increasingly restrictive measures persecuting individual who oppose the
imposition of a regime of apartheid, as set out in Article 2(f) of the Aparthe id Convention.64
1. The Material Element in Article 2{c) of the Apartheid Convention
62. Article 2( c) of the Apartheid Convention categorizes as an inhuman act of apartheid:
Any legislative measures and other measures calculated to prevent a racial group or groups
from participation in the political, social, economic and cultural life of the country and the
deliberate creation of conditions preventing the full development of such a group or groups,
in particular by denying to members of a racial group or groups basic human rights and
freedoms, including the right to work, the right to form recognized trade unions, the right to
education, the right to leave and to return to their country, the right to a nationality, the right
to freedom of movement and residence, the right to freedom of opinion and expression, and
the right to freedom of peaceful assembly and association.
63. Article 2( c) is at the heart of the international legal wrong of apartheid in that it captures the
systemic and structural ways that a State might prevent the flourishing and development of a
group.
64. Since 1948, Israel has adopted laws, policies and practices aimed at fragmenting the Palestinian
people. The Palestinian people have been divided into a number of administrative 'domains' or
groups,65 with varying degrees of rights, with the purpose of separating and segregating the
Palestinian domains from each other. This prevents the flourishing of the group, and in doing so,
denies the exercise of the Palestinian people of its right to self-determination.
65. Israel (a) has denied Palestinian refugees, displaced persons, and exiles their right to return to
their homes, lands, and properties since 1948 on the basis of their racial identity; (b)
discriminates against Palestinian citizens, for the benefit of Jewish nationals, including through
the period of military rule from 1948 until 1966 and through ongoing racial oppression and
domination; (c) controls the Palestinian people in the occupied West Bank under the laws of
63 Article 2(a), Apartheid Convention reads: 'Denial to a member or members of a racial group or groups of the right to life and
liberty of person: By arbitrary arrest and illegal imprisonment of the members of a racial group or groups' - see 1 s
t Report of
Special Rapporteur Francesca Albanese, 21 September 2022, A/77/356, para 59.
64 Article 2(f), Apartheid Convention reads: 'Persecution of organizations and persons, by depriving them of fundamental rights
and freedoms, because they oppose apartheid' - on which see Independent International Commission of Inquiry Report, 9 May
2023, A/HRC/53/22.
65 United Nations Economic and Social Commission for Western Asia, ' Israeli Practices towards the Palestinian People and the
Question of Apai1heid' (2017), UN Doc E/ESCWA/ECRl/2017/1; State of Palestine, It ls Apartheid: The Reality of Israel's
Colonial Occupation of Palestine (2021) p. 18, available at: hll ps ://\, \'\V. nad. ps/sitc s/default/filcs/20201 23 0.pdf'.
18
occupation; (d) treats Palestinians in occupied East Jerusalem as 'permanent residents', a
temporary and revocable residency status, and (e) treats the occupied Gaza Strip as an 'enemy
entity' with severe repercussions on the Palestinians living there.
66. This strategic fragmentation has two underlying objectives: first, it prevents Palestinians from
collectively mobilizing against Israel's settler colonial enterprise; second, it ensures the
continuation of the settler colonial enterprise by maintaining Israeli Jewish domination over the
Palestinian people. Israel's discriminatory laws, policies and practices started with the
foundation of the State of Israel in 1948, and continued after the occupation of Palestinian
territory in 1967, under military orders.
67. Namibia maintains its position that Israel's apartheid spans two jurisdictions on both sides of the
Green Line as a regime of domination over Palestinians in both Israel and the Occupied
Palestinian Territory. At the UN Human Rights Council, Namibia stated:
ff Israel continues to ignore calls to put an end to its illegal occupation, apartheid system and
related human rights violations, then this Council must explore the possibility of establishing
a mechanism, to deal exclusively with Israeli apartheid practices against the Palestinian
people on both sides of the Green Line.66
68. Since 1948, Israel has adopted discriminatory laws, policies and practices against the Palestinian
people as a whole. The content of these measures is described in-depth in the reports of
Palestinian, Israeli and international human rights organizations, including Human Rights Watch
and Amnesty International.67
a. The Law of Return (1950) and the Citizenship Law (1952) provides that citizenship
'shall be granted to every Jew who has expressed his desire to settle in Israel' and 'every
Jew has the right to come to this country as an oleh', while discriminating against the
Palestinian people indigenous to the land.68 Under Israel's Citizenship Law and the Law
of Return, every 'oleh', which is 'every Jew' who enters territory within Israel's control,
66 Item: 7 General Debate (Cont'd) - 31 st Meeting, 51 st Regular Session of Human Rights Council (30 September 2022), Namibia,
M . . Hi llcni Tangi I de am hjkongo (at 30:46). See also Presentation of Reports and Item: 7 General Debate - 46th meeting,
49th Regular Session of Human Rights Council (25 March 2022), amibia. • I ·. Jerr I liko (at 52:00):
Namibia further considers that businesses operating in the settlements, may be 'complicit in the commission of war
crimes and crimes against humanity, including apartheid by Israel against the Palestinian people.
67 Al-Haq, Israeli Apartheid: Tool of Zionist Settler Colonialism (29 November 2022), available at:
hll s://w,n .alhac .or advocacv/20931 .html ; Al Mezan, The Gaza Bantustan-Israeli Apartheid in the Gaza Strip (29 November
2021), available at: hll ps ://re licl\vch.in t/rc port/t ccupicd-pulcstiniun-tt:r rilor /gaza-bnntustan- isracli-aparlhcid-11.aza-stri p; Amnesty
International, Israel's Apartheid Against Palestinians: A Look Into Decades of Oppression and Domination (February 2022),
available at: hups://www.amncstv.org/en/ late l
/cam ai ns/2022/02/isracl - tcm-or-a arthcid/; B'Tselem, A regime of Jewish supremacy from the Jordan River to the
Mediterranean Sea: This is apartheid ( 12 January 2021 ), available at: llllp ://ww, .bls 'lem
.org/publications/fullte. 1/202 10 I this is apartheid; Harvard and Addameer, A Legal Analysis of Israel's Actions, Joint
Submission to the United Nations Independent International Commission of Inquiry on the Occupied Territory, including East
Jerusalem, and Israel (28 February 2022), available at: hlt ://hr .law. lmrvard.edu/w -c n1en1/u I ads/2022/03/ IHR .-1\ddameerubmissiorHo-
l lRC- 01- parthcid-in-WIJ.pdf: Human Rights Watch, A Threshold Crossed: Israeli Authorities and the Crimes
of Apartheid and Persecution (27 April 2021), available at: hllps://www.hrw.org/rcpurt/2021/04/27/thrcshold-crossed/israeliauthorities-
and-crimes-aparlhe id-and-pcrsccut ion. See also, State of Palestine, It ls Apartheid: The Reality of Israel's Colonial
Occupation of Palestine (2021) p. 18, available at: hll ,s://www.nad .. /site·
/<lefau lt/lilcs/20201230.pdf.
68 Law of Return 5710-1950 (5 July 1950), available at: hllps://mfa.go .il/mfa/mfa-archivc/1950-1959/pages
/law%20ol%20return%2057 l 0- 1950.asp •.
19
'shall become an Israeli national', again expressly omitting any provision for Palestinian
n•g ht o f return. 69
b. The Absentee Property Law provides for the confiscation of Palestinian refugee property
from persons classified as 'absentees' or 'persons who were expelled, fled, or who left
the country after 29 November 1947, mainly due to the war'.70 This appropriated
Palestinian property was reallocated to Israel Jews under the Land Acquisition Law
(1953) in a mass settlement enterprise.71
c. The Jewish settlement of land continues to be enshrined in the Basic Law, Nation State
of the Jewish People (2018) which provides that 'State of Israel is the nation State of the
Jewish people' and limits the right to self-determination therein 'to the Jewish people',
while providing for the development of Jewish settlements as a national priority. Under
No 40 of the Budgets Law, the Minister for Finance can refuse public funding to
institutions that reject the existence of Israel as a 'Jewish and democratic state' or that
seek to commemorate 'Israel's Independence Day or the day on which the state was
established as a day of mourning', laws which directly discriminate against the
Palestinian population.72
69. Israel's practices towards Palestinians in the Occupied Palestinian Territory also violate the
material element of the prohibition of apartheid, as reflected in Article 2(c) of the Apartheid
Convention. This may be illustrated with reference to the following measures and practices:
a. the establishment of settlements and their associated regimes;
b. the exploitation of natural resources, and in particular, water resources throughout areas
under Israel's control;
c. the control over economic and social development through restrictive zoning practices,
including discriminatory allocation of resources and services to the detriment of the full
development of the Palestinian people;
d. the infliction of disproportionate restrictions on Palestinians' freedom of movement in the
Occupied Palestinian Territory and through the policy of denying Palestinian refugees,
displaced persons, and exiles their right of return;
e. the failure to take reasonable measures to protect Palestinians from private violence
committed by settlers in the Occupied Palestinian Territory;
f. the establishment of a wider context of a dual system of law in the Occupied Palestinian
Territory under which Palestinians' fundamental rights, including political rights of
assembly, opinion and expression, and association, are unjustifiably curtailed; and
g. the denial of basic human rights and freedoms to Palestinians, notably Palestinians in the
Gaza Strip held under illegal closure and siege.
69 Nationality Law, 5712 - I 952, available at: https: //www.kncssct.gov.il/rcvicw/data/cng/law/kns2 nati onal it
eng.pdf.
70 Article 19(a) of the Absentees' Property Law, 1950, provides that 'it shall be lawful for the Custodian to sell the property to that
Development Authority.'
71 Land Acquisition (Validation of Acts and Compensation) Law ( 1953). See Adalah to Attorney General and Custodian
of Absentee Property: Israel's Sale of Palestinian, available at: hllps://ww, .adalah
.org/en/conlent/view/7003.
72 "Nakba Law" - Amendment No. 40 to the Budgets Foundations Law, 2011 , available at: hllps ://www.adalah
.org/e n/law/vie1 /496.
20
70. First, Israel's establishment and facilitation of the establishment of civilian settlements have
continued unabated.73 In and of itself, this practice breaches the prohibition on transfer of a
State's own civilian population into occupied territory under Article 49 of the Fourth Geneva
Convention which is binding on Israel. This has been widely recognized by the international
community including by the Security Council,74 the General Assembly,75 and the Court in the
Wall Advisory Opinion.76 Such practice also constitutes a war crime under Article 8(2)(b)(viii)
of the Rome Statute.77 Beyond this, the wider project of the settlements as a whole - and the
legal regime that surrounds them - prevents the full development of Palestinians as a group.78 As
the Independent International Commission of Inquiry Report concluded in 2022:
The establishment, maintenance and expansion of Israeli settlements throughout the West
Bank, including in East Jerusalem, has fragmented and isolated Palestinians .from their
lands and other Palestinian communities. The Commission emphasizes that wherever
setllements are located, they have a cascading impact on Palestinians throughout the West
Bank. 79
7 l. Second, Israel's practices in relation to the exploitation of natural resources prevent Palestinians
from full participation in economic life and prevent their full development as a group. These
practices also entail an infringement of the right of the Palestinian people to permanent
sovereignty over their natural resources 80 and exceed any possible justification accruing under
the law of occupation.81 To focus on one resource - water - the same Independent International
Commission of Inquiry Report found that: 'Israel has taken control of all water resources in the
West Bank and has been using much of the water for its own purposes.' 82 This has directly
affected the economic potential of Palestinian agriculture83 and broader economic development
as a group. The question of access to water is also addressed in more detail by the United
Nations High Commissioner for Human Rights in their Report to the Human Rights Council of
2021. This Report illustrates how 'Israeli occupation policies and practices negatively affect the
enjoyment of human rights of the Palestinian people in terms of rights to safe drinking water and
73 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, para 25; Fifth Report of Special
Rapporteur Michael Lynk, 22 October 2020, A/75/532, para 14 noting that: 'In 2020 alone, Israel has approved or advanced more
than 12,150 settlement homes, making it the single highest rate on record since 2012, when such figures started to be recorded by
Peace Now.'
74 E.g. UNSC Resolution 446, 22 March 1979, S/Res/446; UNSC Resolution 465, 1 March 1980, S/Res/465; UNSC Resolution
2334, 23 December 2016, S/Res/2334.
75 E.g. UNGA Resolution 77/126, 12 December 2022, A/Res/77/126.
76 Wall Advisory Opinion, p. 156, para 120.
77 The war crime set out in Article 8(2)(b)(viii) was explicitly referred to in the ICC Prosecutor's 2020 Request for a ruling on the
Court's territorial jurisdiction in Palestine - see ICC, 'Prosecution request pursuant to article 19(3) for a ruling on the Court's
territorial jurisdiction in Palestine' (Pre-Trial Chamber 1, Doc No ICC-01/18, 22 January 2020) para. 95.
78 The settlement project and its associated practices also violate the right of the Palestinian people to self-determination - on
which, see UNGA Resolution 2625 (XXV), 24 October 1970; Wall Advisory Opinion, p. 156, paras 88, 122.
79 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, para 30.
80 See UNGA Resolution 77/187, 22 December 2022, A/Res/77/187, para 1: The General Assembly: 'Reaffirms the inalienable
rights of the Palestinian people and of the population of the occupied Syrian Golan over their natural resources, including land,
water and energy resources'; and foundationally UNGA Resolution 1803 (XVII, 14 December 1962, A/1803 (XVII)).
81 Article 55, Hague Regulations (1907). See also Article 11, ICESCR; Committee on Economic, Social and Cultural Rights,
'General Comment No. 15 - The Right to Water', 2002, E/C.12/2002/11.
82 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, para 35.
83 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, paras 72, 74.
21
sanitation in the Occupied Palestinian Territory, including East Jerusalem. ' 84 In addition, in its
Concluding Observations on Israel's Fourth Periodic Report, the Committee on Economic,
Social and Cultural Rights urged Israel to:
cease the destruction of Palestinian water infrastructure and ensure that Palestinians have
access to sufficient quantities of safe and clean drinking water. 85
72. Third, Israel exercises control over the economic and social development of the Palestinian
people through an extensive system of planning and zoning within the West Bank.86
Applications for building permits are commonly rejected, 87 and 'Israeli military application of
land, zoning and property rules in East Jerusalem and the West Bank discriminatorily benefits
Israeli Jewish settlers and significantly disadvantages Palestinians. ' 88 The system of planning
and zoning provides for house demolitions for unlicensed construction in Area C, and along
with punitive house demolitions and the creation of coercive environments, 89 has forced the
widespread and systematic transfer of Palestinian population. Between 2009 and July 2023,
OCHA recorded that Israel destroyed 9,629 structures forcing the displacement of 14,051
Palestinians.90 Indeed, in its Concluding Observations on the Fifth Periodic Report of Israel in
2022, the Human Rights Committee observed that 'the restrictive zoning and planning regime in
the West Bank makes it almost impossible for Palestinians to obtain construction permits.'91 The
practices entailed in this control amount to the deliberate creation of conditions preventing the
full development of the Palestinian people. They also have severe effects on the right of
Palestinians to work, as protected by international law.92
73. Fourth, the freedom of movement of Palestinians is restricted through the imposition of a
coercive system of checkpoints and searches, including of women and girls.93 In its collective
application and disproportionality, this coercive system exceeds any po ible j ustification arising
under international law.94 In addition, in his 6th report to the General A embly, Michael Lynk,
the Special Rapporteur on the Situation of Human rights in the Palestinian Territories Occupied
Since 1967, noted how this system of checkpoints and roadblocks 'continue[s] to effectively
obstruct Palestinians' access to other rights and services, including health, education and
84 Report of the United Nations High Commissioner for Human Rights, Allocation of Water Resources in the Occupied
Palestinian Territory, including East Jerusalem, 15 October 2021, A/HRC/48/43, para 3.
85 CESCR, Concluding Observations on the Fourth Periodic Report of Israel, 12 November 2019, E/C.12/ISR/CO.4, para 47.
86 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, paras 41, 42:
Permits are rarefy given to Palestinians for building residential structures or structures for economic activities, or to
develop infrastructure. Over the JO-year period lasting from 2009 to 2018, only about 2 per cent of applications for
construction permits was approved Jn 2019 and 2020, 32 plans and permits for Palestinians were approved and 3 I 0
plans were rejected, while the Civil Administration of Israel approved plans for I 6,098 units in Israeli settlements.
87 4th Report of Special Rapporteur Michael Lynk, 21 October 2019, A/74/507, para 15.
88 Report of Special Rapporteur Michael Lynk to the Human Rights Council, 2022, A/HRC/49/87, para 50.
89 OCHA, Coercive environment intensified on herding Communities in southern Hebron (17 December 2017), available at:
llll s:/ , v, •.ochaopl.l rg/cont ntlcocr i \lc- n ironment-intensilied-her<ling-communities-southern-h bron.
90 OCHA, Data on demolition and displacement in the West Bank (Figures as of 15 July 2023), available at:
l1ttps://w,vw.ochaopl.org/dat0/dcmolition.
91 Human Rights Committee, Concluding Observations on the Fifth Periodic Report of Israel, 5 May 2022, CCPR/C/ISR/CO/5,
para 42.
92 On the content of the right, see Committee on Economic, Social and Cultural Rights, General Comment No. 18, the Right to
Work, 2005, E/C.12/GC/186.
93 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, paras 55, 59.
94 Article 12, ICCPR.
22
work. ' 95 This is an extension of the specific finding of the Court in the Wall Advisory Opinion,
where the Court identified the effects of the separation wall on Pale tin ians rights to freedom of
movement, as well as their access to health services, education, and water.96
74. Fifth, in breach of its duties as an occupying power as well as its protective duties under
int rnational human rights law 97 Israel has failed to take all reasonable measures to protect
Palestinians from violence committed by settlers, often providing protection and support to the
settlers committing such violence.98 This has led to an 'atmosphere of impunity surrounding
attacks by settlers' ,99 which itself contributes to the inability of Palestinians to exercise basic
freedoms as guaranteed by international law.
75. Sixth, these specific practices take place within a wider context of a dual system of law which
provides privileges to the I raeli settlers illegally present in the OPT and denies the human rights
of the Palestinian people. 100 Israel undertake mass arbitrary arrests and impri onment of
Palestinians, including an extensive practice of administrative detention without trial, 101 that
breaches what mi.ghl be justified under its derogation to Article 9 of the International Covenant
on Civil and Political Rights.102 It imposes severe limitations on the rights of family
reuni tication. 10 The Palestinian people s freedom of assembly opinion and expression and .
association is severely restricted104 in a systematic and collective way that entails a
disproportionate limitation under international law. 105 Moreover, there have been severe attacks
on the political freedoms of the Palestinian people, including civil society.106 This has included
legislation targeting the civic space, including the use of counter-terrorism legislation,
harassment of human rights defenders, and collective punitive measures by Israel as occupying
power.101
76. Seventh, Israel's policies and practices in the Gaza Strip have serious detrimental consequences
for Palestinians. The denial of freedom of movement, including preventing and delaying access
95 6th Report of Special Rapporteur Michael Lynk, 22 October 2021, A/76/433, para 13.
96 Wal/Advisory Opinion, p.156,paras 133,137.
97 Article 43, Hague Regulations ( 1907); Article 6, ICC PR; Human Rights Committee, General Comment 36, para 21.
98 Independent International Commission of Inquiry Report, 14 cptcmbcr 2022, A/77/3 28, para 66; 4th Report of Special
Rapporteur Michael Lynk, 21 October 2019, A/74/507, para 15; 6th Report of pecial Rapponeur Michael Lynk, 22 October 2021 ,
A/76/433, paras 16-19; Report of the Special Committee, 29 September 2021, A/76/360, paras 25-26.
99 6th Report of Special Rapporteur Michael Lynk, 22 October 2021, A/76/433, para 19. See also Human Rights Committee,
Concluding Observations on the Fifth Periodic Report of Israel , 5 May 2022, CCPR/C/ISR/CO/5, para 24.
100 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, para 47; Report of Special
Rapporteur Michael Lynk to the Human Rights Council, 2022, A/I-IRC/49/87, paras 38-45.
101 1st Report of Special Rapporteur Francesca Albanese, 21 September 2022, A/77/356, para 59.
102 On the limits to derogation, Human Rights Committee, General Comment No. 29 - States of Emergency (2001)
CCPR/C/21/Rev.l/Add. l l.
103 Committee on the Elimination of Racial Discrimination, Concluding Observations on the Combined Seventeenth to Nineteenth
Reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19, para 24.
104 Independent International Commission of Inquiry Report, 14 September 2022, A/77/3 28, para 47; 4th Report of Special
Rapporteur Michael Lynk, 21 October 2019, A/74/507, para 18.
105 Articles 19, 21 , 22, ICCPR.
106 Independent International Commission of Inquiry Report, 9 May 2023, A/HRC/53/22.
107 Independent International Commission of Inquiry Report, 9 May 2023, A/HRC/53/22, paras 11-35.
23
to medical appointments for chemotherapy and other treatments, 108 as well as the prevention of
the besieged occupied population from accessing basic humanitarian supplies including the
provision of adequate fuel supply, electricity, water and sanitation, amount to collective
punishment. This was affirmed by UN Special Rapporteur Michael Lynk, 109 and entails a
violation of Article 50 of the Hague Regulations and Article 33 of the Fourth Geneva
Convention. 110
77. These measures and practices con titute an institutionalized system where two groups of people
subject to Israel's jurisdiction are treated in radically different ways. 111 As the Committee on the
Elimination of Racial Discrimination found in its Concluding Observations on the Combined
Seventeenth to Nineteenth Reports of Israel in 2019, there are two groups within the Occupied
Palestinian Territory:
[W]ho live on the same territory but do not enjoy either equal use of roads and irifrastructure
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
d
. . Ip an a permtt regime... -
78. Similarly, earlier this year, the Human Rights Council called upon Israel, as the Occupying
Power:
To take immediate measures to prohibit and eradicate all policies and practices that
discriminate against and disproportionately affect the Palestinian population in the Occupied
Palestinian Territory, including East Jerusalem, by, inter alia, putting an end to the system of
separate roads for the exclusive use of Israeli settlers, who reside illegally in the said
territory, the complex combination of movement restrictions consisting of the wall,
roadblocks and a permit regime that only affects the Palestinian population, the application
of a two-tier legal system that has facilitated the establishment and consolidation of the
settlements, and other violations and forms of institutionalized discrimination. 113
79. In sum, in relation to Article 2(c) of the Apartheid Convention, Israel's legislative and other
measures constitute, in particular through the violation of fundamental rights protected by
international law:
108 National Library of Medicine, Comparative survival of cancer patients requiring Israeli permits to exit the Gaza Strip for health
care: A retrospective cohort study from 2008 to 2017 (2021 ), available at:
https://www .ncbi .nlm .nih .gO\ /pmc/urticles/PMC8 l 72025/.
109 UN OHCHR, Israel's collective punishment of Palestinians illegal and an affront to justice: UN expert (17 July 2020),
available at: https://www.ohchr.org/en/press-releases/2020/07/israels-collective-punishment-palestinians-illegal-and-affrontj
ustice-un.
110 The Report of the Palestinian NGO, Al Mezan, considers that Israel's policies: '[D]emonstrate Israel's intent to separate and
divide Palestinians and re-engineer the demographics of the entire Palestinian population in order to assert its domination over
them. As a sealed-off enclave, fragmented from the rest of the OPT and controlled by Israel within its apartheid system, Gaza is a
strip of land that can be likened to a South African Bantustan' - The Gaza Bantustan: Israeli Apartheid in the Gaza Strip (2021)available
at hups://rclicl'wcb.int/rcport/occupicd-palcstin ian-tc rrilorv/uaza-bnntustan-i -racli-apanhcid-gaza-s trip. See also Human
Rights Watch, A Threshold Crossed Israeli Authorities and the Crimes of Apartheid and Persecution (2021), p. 73-77, 128-14 -
available at hlLps://w\\ v.hrw. re/ ites/dc fa ull/fil es/mcd ia 202 1/04/i ·rael pa lestine042 l \ eb 0.pd f.
111 Report of Special Rapporteur Michael Lynk to the Human Rights Council, 2022, A/HRC/49/87, paras 38-45.
112 Committee on the Elimination of Racial Discrimination, Concluding Observations on the Combined Seventeenth to Nineteenth
Reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19, para 22.
113 Human Rights Council, Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied
Syrian Golan, 20 April 2023, A/HRC/Res/52/35, para 7(c).
24
a. measures calculated to prevent Palestinians in the Occupied Palestinian Territory and the
Palestinian people as a whole from participation in political, social, economic and
cultural life; and
b. the deliberate creation of conditions preventing the full development of Palestinians in
the Occupied Palestinian Territory and the Palestinian people as a whole.
80. As such, they fulfil the material element, as set out in Article 2(c) of the Apartheid Convention,
of the prohibition of apartheid in customary international law and Article 3 of ICE RD.
ii . The Material Element in Article 2(d) of the Apartheid Convention
81. Article 2( d) of the Apartheid Convention categorizes as an inhuman act of apartheid:
Any measures including legislative measures, designed to divide the population along racial
lines by the creation of separate reserves and ghettos for the members of a racial group or
groups, the prohibition of mixed marriages among members of various racial groups, the
expropriation of landed property belonging to a racial group or groups or to members
thereof
82. This sub-section considers Israel's imposition of measures that are designed to divide the
population along racial lines by the creation of separate reserves for Palestinians, as well as the
expropriation of landed property belonging to Palestinians. Each of these practices constitutes an
infringement of the material element of apartheid, as set out in Article 2(d) of the Apartheid
Convention.
83. First, as to the imposition of measures designed to divide the population along racial lines, a
central and intended consequence of the settlement project and related practices is the increased
confinement of Palestinians to shrinking and separated parts of the Territories. These measures
are 'designed' to divide the population.
84. As previously mentioned, the Palestinian people have been separated from each other into
different domains, divided into separate administrative 'reserves' through legislative and other
measures. This prevents the Palestinian people as a whole from even physically meeting -
Palestinians in Gaza cannot leave the Gaza Strip, and are prevented from travelling to see
Palestinians in the West Bank, including Jerusalem, and Palestinian citizens of Israel. In
addition, Palestinian refugees cannot return to meet other Palestinians. All domains are denied
family unification. Under Israel's Citizenship and Entry into Israel Law (Temporary Provision)
(2003), renewed in 2023 :
[TJ he Minister of the Interior shall not grant the inhabitant of an area (the West Bank and
the Gaza Strip) citizenship on the basis of the Citizenship law, and shall not give him a
license to reside in Israel on the basis of the Entry into Israel Law, and the Area
Commander shall not grant a said inhabitant, a permit to stay in Israel, on the basis with
the security legislation in the area. 114
114 The Citizenship and Entry into Israel Law (temporary provision) 5763 - 2003, available at: https://www.kne
s ·et.gov.il/ laws/ pe ial/eng/ci tjzenship la\ .hun ; TOI Staff, Knesset extends law banning Palestinian family unification for
another year, The Times Israel (6 March 2023 ), available at: hllp!;://www.times
ofi rae l.com/knc scL-exlcnds-law-banni ng-palcslin ian-fam i ly-u n i ficaLion-lor-anoLher-vear/.
25
85. The denial of family unification for Palestinians with different status is part and parcel of the
denial of their right to self-determination and amounts to an inhuman act of apartheid.
86. In relation to Gaza, the State of Palestine notes that '[t]he containment of the Palestinian people
in the besieged and densely-populated Gaza Strip as a separate and distinct entity is particularly
evident from the now permanently entrenched illegal closure and blockade of the Gaza Strip'. 115
In purportedly annexed Jerusalem, Israel's application of Article l(b), Entry into Israel Law,
5712-1952, imposes a temporary and revocable 'permanent residency' status on indigenous
Pale tinians from Jerusalem requiring them to continually prove that their 'centre of life' is in
the city. 116 Those who cannot prove residency are forcibly tran sferred from the City. To date,
14,500 people have been transferred. I17 In the rest of the West Bank, Palestinians are denied
movement from the con truction of the Wall and its associated permit regime which cuts them
off from Jerusalem and fragments the territory. 118 Palestinian refugees are systematically denied
their right of return to their homes, lands, and properties in Israel and the Occupied Palestinian
Territory. 119 All these measures serve to divide the population along racial lines, separating
Palestinians into segregated groups. Similarly, Palestinian displaced persons within the Green
Line are denied their right of return to their towns of origin, and their rights to land and property.
87. As to East Jerusalem, the Independent International Commission of Inquiry concluded in its
Report of September 2022 that ' [ o ]ver one third of East Jerusalem has been expropriated for the
construction of Israeli settlements, and only 13 per cent of the annexed area is currently zoned
for Pale tinian con truction.' There have been exten ive practices of forced evictions, 120 and the
creation of a 'shrunken and tenuous range of residency rights for the 360,000 Palestinians' living
in East Jerusalem. 121
88. Similarly, the development of new settlements in the West Bank, sanctioned by Israel and
including outr:osts on private Palestinian land has further fragmented and isolated Palestinian
communities. 22 In Zone C, Israel has undertaken a widespread practice of declaring land ' tate
land' and appropriating land as military training zones nature reserves, and archaeological
reserves, am ngst other .123 with detrimental consequences for Pale tinians. Private violence, as
mentioned above, has resulted in 'many Palestinian inhabitants [being] forced to leave these
areas as a result of the violence, while Israeli ettlements continue to expand, effectively
surrounding and reducing the living space for Palestinian communities. 124
11 5 State of Palestine, 'It Is Apartheid: The Reality of Israel's Colonial Occupation of Palestine' (2021) p. 32, available at:
!.illn • -J/www .nau.ps/si tcs/dcfou ltfli les/2020 1230. pd r
116 Article l(b), Entry into Israel Law, 5712 - 1952.
117 OCHA, West Bank Palestinians at Risk of Forcible Transfer, available at: http ://, W\ .ochaopt.
org/sitcs/d •fa ul t/tiles/paleslini an a l ri k of lo rciblc Iran fe r.pdf.
118 See Wall Advisory Opinion, para 134.
119 UN CEIRPP Study, The Right of Return of the Palestinian People (1978), available at: hltps://www.un. rg
/un ispal/d cument/a ut -insert-2 10 170/.
120 4th Report of Special Rapporteur Michael Lynk, 21 October 2019, A/74/507, para 19; Report of the Special Committee, 29
September 2021, A/76/360, paras 22-24.
121 Report of Special Rapporteur Michael Lynk to the Human Rights Council, 2022, A/HRC/49/87, para 35.
122 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, para 27, 30.
123 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, para 33 ; Human Rights Committee,
Concluding Observations on the Fifth Periodic Report of Israel, 5 May 2022, CCPR/C/ISR/CO/5, para 15; A/HRC/52/76, Israeli
settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan Report of the
United Nations High Commissioner for Human Rights (15 March 2023) para 20-21.
124 4th Report of Special Rapporteur Michael Lynk, 21 October 2019, A/74/507, para 15.
26
89. Second, as to expropriation of landed property, Israel has undertaken a widespread practice of
expropriation of Palestinian property inside the Green Line and in the Occupied Palestinian
Territory:
a. This involves exten ive expropriation in occupied East Jerusalem for the construction of
settlements, 125 as w II as in the West Bank. 126 This has included broad transfers of
'property rights from Palestinians in East Jerusalem to the State', with a view to
facilitating settlement expansion. 127 These actions, and related practices, exceed any
possible justification arising under the law of occupation or international human rights
law, and are in fact, prohibited under the property provisions of Article 46, 52, 55 and 56
of the Hague Regulations of l 907.
b. Moreover, demolitions of Palestinian property in the West Bank, also linked to the
expansion of settlements, are common. 128 Under Article 53 of the Fourth Geneva
Convention, destruction of private Rroperty can only be justified if 'rendered absolutely
necessary by military operations.' 1 9 This requirement is not met in relation to the vast
majority of these ongoing practices. More widely, as the Independent International
Commission of Inquiry found in its Report of September 2022:
The demolition and confiscation of livelihood structures, such as shops, animal
shelters, walls and warehouses, as well as of infrastructure, such as water pipes,
cisterns and roads, has had a substantial impact on Palestinians' access to
livelihoods. 130
c. These practices are a central part of the creation of an institutionalized regime of
discrimination and control, and recall policies targeting, and forced removals of, Black
South Africans by the government in South Africa. 131
90. Israel's practices of expropriation and confiscation of Palestinian owned land have been
repeatedly condemned by the General Assembly132 and Human Rights Council. 133 Moreover, in
its Concluding Observations on the Fifth Periodic Report of Israel in 2022, the Human Rights
Committee urged the State to:
125 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, para 14.
126 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, paras 31-40; Report of Special
Rapporteur Michael Lynk to the Human Rights Council, 2022, A/HRC/49/87, para 43.
127 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, para 14.
128 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, paras 45, 60-63; 41
h Report of Special
Rapporteur Michael Lynk, 21 October 2019, A/74/507, para 16.
129 Article 53, Fourth Geneva Convention.
130 Independent International Commission of Inquiry Report, 14 September 2022, A/77/328, para 62.
131 See, in particular, the Group Areas Act 41 of 1950 and the Group Areas Act 36 of 1966.
132 See e.g. UNGA Resolution 77/126, 12 December 2022, A/Res/77/126, para 8; UNGA Resolution 76/82, 9 December 2021,
A/Res/76/82, para 8.
133 See e.g. Human Rights Council, Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the
occupied Syrian Golan, 20 April 2023, A/HRC/Res/52/35, para 5; Human Rights Council, Israeli settlements in the Occupied
Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, 20 April 2023, A/HRC/Res/49/29, para 5.
27
Put an end to the practice of expropriating private land owned by Palestinians and the Syrian
Arab population and declaring it as "State land'' for selllement purposes. 134
91. In addition, recent reports by Palestinian, Israeli, and international non-governmental
organizations describe Israel's f:ractices of expropriation as a central aspect of the imposition of
a regime of apartheid by Israel. 35
92. In sum, in relation to Article 2(d) of the Apartheid Convention, these practices, aimed at
Palestinians in the Occupied Palestinian Territory and the Palestinian people as a whole,
constitute:
a. measures designed to divide the population along racial lines by the creation of separate
reserves and ghettos for the members of a racial group; and
b. the expropriation of landed property belonging to members of the racial group.
93. As such, they fulfil the material element, as set out in Article 2(d) of the Apartheid Convention,
of the prohibition of apartheid in customary international law and Article 3 of ICERD.
iii. Conclusion on the Material Element of Apa1t heid
94. Israel's measures and practices fulfil the requirements, as set out in Articles 2(c) and 2(d) of the
Apartheid Convention, of the material element of apartheid in customary international law and
Article 3 of ICERD. Taken together, and in combination with other violations of the
fundamental rights of the Palestinian people, these measures and practices establish a regime of
domination and systematic oppression spanning both Israel and the Occupied Palestinian
Territory.
C. The Question of Racial Groups
95. The previous sub-section demonstrated how Israel's practices breach the material element of the
prohibition of apartheid. The present sub-section addresses the second element of the prohibition
- that relating to racial groups. It would be particularly valuable for the Court to interpret this
element, and to determine authoritatively that Palestinians in the Occupied Palestinian Territory,
as well as the Palestinian people as a whole, constitute racial groups for the purposes of the state
wrong and the crime of apartheid.
96. Apartheid entails the systematic oppression of a racial group. First, each of its material elements,
as set out in Articles 2(a)-(e) of the Apartheid Convention, concern inhuman acts committed
against a racial group or members of a racial group. The exception is Article 2(f): 'Persecution
of organizations and persons, by depriving them of fundamental rights and freedoms, because
they oppose apartheid. ' Second, the State's purpose must be to establish and maintain
domination by 'one racial group of persons over any other racial group.'
n4 Human Rights Committee, Concluding Observations on the Fi fth Periodic Report of Israel, 5 May 2022, CCPR/C/JSR/CO/5,
para 15.
135 See e.g. B'Tselem, 'A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This is apa11he id'
(Position Paper, 12 January 2021) 4; Al-Haq, 'Israeli Apartheid: Tool of Zionist Settler Coloni alism' (2022) 99- 110; Human
Rights Watch, 'A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution' (Report, 27 Apri l 202 1)
176-183; Amnesty International, ' Israel's Apartheid against Palestinians: Cruel System of Domination and Crime agai nst
Humanity' (Report, I February 2022) 11 3- 162.
28
97. The initial question, then, concerns the meaning of 'racial' for these purposes. Article 1(1) of
ICERD provides:
In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent, or national or ethnic origin which
has the purpose or effect of nullifying or impairing the recognition, eryoyment or exercise, on
an equal footing, of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life. 136
98. This definition of 'racial' equally applies to the term 'apartheid' under Article 3 of ICERD.
Indeed, apartheid in Article 3 of ICERD should be understood as a distinctive kind of systematic
'racial discrimination', as defined by ICERD, where the State's aim is to establish a regime of
racial domination.
99. The same is true for the customary prohibition on apartheid. The definition set out above in
Article 1 (1) of IC ERO, a convention which has been ratified by 182 States, represents a general
understanding of the international community of the meaning of the term 'racial discrimination'
in international law. There is no reason to think that its conception of racial discrimination does
not also apply to the customary prohibition on apartheid. 137
100. In sum, the term 'racial groups' in the definition of apartheid in Article 3 of ICERD, and in the
customary rule, is defined with reference to identity-based on race, colour, descent, national
origin, or ethnic origin. 138
101. Applying this definition to the situation in Israel and the Occupied Palestinian Territory, 1t 1s
clear that the measures and practices described in the previous section target Palestinians on the
basis of their identity as members of the group.
102. In addition to constituting a 'people' for the purposes of the right of self-determination, as the
Court held in the Wall Advisory Opinion, 139 Palestinians constitute a racial group for applying
the prohibition on apartheid. This is so both for Palestinians in the Occupied Palestinian
Territory and for the Palestinian people as a whole, comprising Palestinians in the Occupied
Palestinian Territory, Palestinian citizens of Israel and Palestinian refugees and xiles. Their
status as a group i con tituted by both their self-understandingI40 and the perceptions and
practices14I of the Israeli authorities in the particular, localized contexts of interaction.
136 Article 2, ICERD.
137 Similarly, Dugard and Reynolds, ' Apartheid, International Law, and the Occupied Palestinian Territory' (2013) 24 EJIL 867,
886.
138 Jackson, 'The Definition of Apartheid in Customary International Law and the International Convention on the Elimination of
All Forms of Racial Discrimination' (2022) 71 ICLQ 831, 850. This is also implicit in the Court's reasoning in the Namibia
Advisory Opinion, p. 16, para 131:
Under the Charter of the United Nations, the former Mandatory had pledged itself to observe and respect, in a territory
having an international status, human rights and jimdamental freedoms for all without distinction as to race. To
establish instead, and lo eriforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of
race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant
violation of the purposes and principles of the Charter.
139 Wall Advisory Opinion, p. 156, para 149.
140 See Committee on the Elimination of Racial Discrimination, General Recommendation 8, 22 August 1990.
141 See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 January 2005,
para 499
29
l 03. Moreover, the regimes of discrimination constituted by these practices benefits Jewish Israelis
inside the Green Line, the Occupied Palestinian Territory, and the occupied Syrian Golan. These
communities constitute a racial group in their relationship with Palestinians, as well as in their
self-understanding. These communities benefit from the State's discriminatory provision of
services, resources, and protection of fundamental rights.
104. This is confirmed in the practice of the Human Rights Committee, 142 Committee on the
Elimination of Racial Discrimination, 143 and in the reports of four successive United Nations
Special Rapporteurs on the Situation of Human Right in the Palestinian Territories since
1967.144 It is further recognized in the statements of the African Union i.is the Arab League 1 6
and the Organization of Islamic Cooperation, 147 the former UN Secretary-General Ban Kimoon,
148 and in the Human Rights Council statements of Member States, including Algeria,
Bolivia, Brunei Darussalam, Indonesia, Iran, Libya, Malaysia, Mauritania, Namibia, Pakistan,
South Africa, Syria, Venezuela.149 In addition, Belize has adopted a motion recognizing
apartheid against the Palestinian people, 150 as has the Catalan Parliament in Spain.151
.105. In conclusion, the second element of the prohibition of apartheid is met. The inhuman acts are
being committed against a racial group for the benefit of another racial group.
D. The Specific Intent Element of the Wrong of Apartheid
i. The Meaning of the Specific Intent of Apartheid
l 06. This section addresses the final element of the wrong of apartheid. This is the requirement that
the wrongful acts were undertaken with a specific form of intent. As set out in Article 2 of the
142 Human Rights Committee, Concluding Observations on the Fifth Periodic Report of Israel, 5 May 2022, CCPR/C/JSR/CO/5,
para 42.
143 Committee on the Elimination of Racial Discrimination, Concluding Observations on the Combined Seventeenth to Nineteenth
Reports of Israel, 27 January 2020, CERD/C/ISR/CO/ 17-19, para 21-23.
144 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, John
Dugard, 29 January 2007, A/HRC/4/17, para. 62; Report of the Special Rapporteur on the situation of human rights in the
Palestinian territories occupied since 1967, Richard Falk', 13 January 2014, A/HRC/25/67, para. 81(b); Report of Special
Rapporteur Michael Lynk to the Human Rights Council, 2022, A/HRC/49/87, paras 32-33; Report of Special Rapporteur
Francesca Albanese to the Human Rights Council, 21 September 2022, A/77/356, p. 5.
145 Letter to Representatives of the African Union in Geneva (24 September 2021 ), available at:
hltns://,, w\\ .al haq.org/cacbctl uploatls/tlownloatl/202 1/09/27/ joinL-civil- ·ocicL -Ie1tcr-lll•thc-al"rican-union- l 6J2731 199.pdf".
146 Arab League, OIC welcome Amnesty's report on Israel's 'apartheid' against Palestinians Arab News (3 February 2022),
avai I able at: hLtps://www.arabnews.c m/node/20 17946/middle-cast.
147 Arab League, OIC welcome Amnesty's report on Israel's 'apartheid' against Palestinians Arab News (3 February 2022),
available at: hltps;//ww,, .arabne, s.com/nodc/20 17946/middlc-cast.
148 Ban Ki-moon, Ban Ki-moon: US Should Back a New Approach to the Israeli-Palestinian Conflict Financial Times (21 June
2021 ), a vai lab le at: hllps://www.ll.com/conlent/c 121 0a2 I-0209-4c4b-8cb3-cfa3 I c3 fdee0 .
149 Sessions at HRC49, HRC50, HRC5 l and HRC52.
150 Belize House of Representatives, HR9/l/l 3, 2021 available at: h11ps://www.nationalassembly.gov.b7/ wpconlent/
uploads/202 I/ I 0/ upplcmcntary-26-October-202 1- 1.pd r. The Par I iament of Catalonia has also declared that Israel is
committing the crime of apartheid against the Palestinian people - Catalan News, 'Catalonia recognises Israel 'committing crime
of apartheid' against Palestinians' available at https://www.mid
dleca teyc.nct/nc, s/israel-apar1hcid-ca1alonia-li rs1-e uropea11-par liament-reco'1.ni se.
151 Belize House of Representatives, HR9/l/13, 2021 available at:
contcnt/uploads/2021/ l 0/Supplcmenlarv-26- ctober-202 1- 1.pdf;
hll ps://www.nationalasscmbly.gov.bz/wp-
30
Apartheid Convention, which informs the customary rule and Article 3 of ICERD, the inhuman
acts of apartheid must have been committed:
for the purpose of establishing and maintaining domination by one racial group of persons
over any other racial group of persons and systematically oppressing them.
107. This distinctive form of specific intent marks out apartheid as a particularly grave wrong under
international law.
108. As to the meaning of the relevant terms in this requirement - that is, what the State through its
organs and agents must actually intend:
a. Domination may be understood as a serious form of control over the group. Amnesty
lnt.ernational 152 and Human Rights Watch153 in their research found that Israel
implements a system of oppression and domination through institutionalized
discrimination over Palestinians wherever it exercises control. The Special Rapporteur on
the human rights situation in the Palestinian territories occupied since 1967, in his report
found that: " ... 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."154
b. The term 'systematically' may be understood by analogy to the same term in the
definition of crimes against humanity. In that context, emblematically, the Appeals
Chamber of the International Criminal Tribunal for the former Yugoslavia held that the
term systematic refers to 'the organized nature of the acts of violence and the
improbability of their random occurrence.' 155
c. Oppression may be understood as entailing prolonged cruelty. 156
109. To emphasize, this is a requirement within the mental element of the wrong of apartheid: the
state's intention - through its organs and agents - must be to establish and maintain such a
regime of racial domination and systematic oppression.
ii. Inferring Specific Intent - An Analogy from the Law of Genocide
110. The next question concerns how such intent may be found. In this respect, it is appropriate to
draw from international jurisprudence concerning genocide. Genocide also includes a
requirement of specific intent, namely: the 'intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such.' 157
152 Amnesty International (2022) Israel's apartheid against Palestinians: Cruel system of domination and crime against humanity,
A vai I able at: https://www.amnesty.org/en/documents/mde 15/5141/2022/en/
153 Human Rights Watch (2022) A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, Available
at: https://www.hrw.org/report/2021/04/27 /threshold-crossed/israe I i-authori ties-and-crimes-apartheid-and-persecution
154 Report or pecial Rapporteur Michael Lynk to the Human Rights ouncil, 2022, A/1 IR /49/87, para 54
155 ICTY, Appeals Chamber, Proseculor v. Kunarac et al, IT-96-23 & IT-96-23/1-/\ 12 June 2002, para 94 citing ICTY, Trial
Chamber, Prosecutor v. Kunarac et al, IT-96-23 & IT-96-23/1, 22 February 2001, para 429.
156 Lingaas, 'The Crime against Humanity of Apartheid in a Post-Apartheid World' (2015) Oslo L.R. 86, 99.
157 Article 2, Genocide Convention.
31
111. In relation to that requirement, it has long been accepted that such an intent may be inferred
from the facts and context of the matter. The Court held this in both Bosnia v. Serbia158 and
Croatia v. Serbia. 159 As to the quality of the inference, the Court found in Croatia v. Serbia that:
'in order to infer the existence of do/us specialis [the specific intent] from a pattern of conduct, it
is necessary and sufficient that this is the only inference that could reasonably be drawn from the
acts in question.' 160
112. In addition, as to what might form the basis of such an inference, in the Jelisic case, the Appeals
Chamber of the International Criminal Tribunal for the former Yugoslavia held:
As to proof of specific intent, it may, in the absence of direct explicit evidence, be inferred
from a number of facts and circumstances, such as the general context, the perpetration of
other culpable acts systematically directed against the same group, the scale of atrocities
commillec/. the systematic targeLing of victims on account of their membership of a particular
group, or the repetil.ion of de ·tructive and discriminatory acts. 161
113. Finally, the Report of the Detailed Findings of the Independent International Fact-Finding
Mission on Myanmar of 2018 provides additional guidance on how an inference of specific
intent may be made. In relation to the question of genocide, the Report emphasizes the probative
importance of the 'broader context within hich the acts occurred and the widely prevalent
rhetoric of hatred and contempt toward Rohingya.' 162 This included a general context of
dehumanizing rhetoric aimed at the targeted group and specific violent and derogatory
statements and utterances of government offi ials and politicians. 163
114. These holdings, which are concerned with the question of finding the specific intent for
genocide, may be applied by analogy in relation to the specific intent of the wrong of apartheid.
iii. Application to Israel s Practice in Occupied Pale tinian Territory and Israel
115. The element of specific intent is met in relation to Israel's wrongful acts in the Occupied
Palestinian Territory and Israel.
116. More precisely, it may be inferred from the following facts that the wrongful acts were and are
being committed 'for the purpose of establishing and maintaining domination by one racial
group of persons over any other racial group of persons and systematically oppressing them':
a. First, the wrongful acts referred to above, as well as detailed in the wider documentary
material provided to the Court by the Secretariat, are directed against Palestinians in the
Occupied Palestinian Territory, Palestinians in Israel and Palestinian refugees and exiles
on account of their identity- that is, their membership of the Palestinian people. 164
158 Bosnia v. Serbia, p. 43, para 373.
159 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia). Judgment,
I.CJ Reports 2015, p. 3, para 145.
16° Croatia v. Serbia, p. 3, para 148.
161 ICTY, Appeals Chamber, Prosecutor v. Jelisic, IT-95-10-A, 5 July 2001, para 47.
162 HRC, 'Report of the Detailed Findings of the Independent Fact-Finding Mission on Myanmar', 17 September 2018,
A/l-lRC/39/CRP.2, paras 1419.
163 l-lRC, 'Report of the Detailed Findings of the Independent Fact-Finding Mission on Myanmar', 17 September 2018,
A/l-lRC/39/CRP .2, paras 1420-1424.
164 Committee on the Elimination of Racial Discrimination, Concluding Observations on the Combined Seventeenth to Nineteenth
Reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19, para 22; Committee on the Elimination of Racial Discrimination,
32
b. Second, these acts are being undertaken at an immense scale, and are being imposed in
an institutionalized manner that creates a system of coercion and cruelty. They result
from legislative and administrative policy choice at the highest levels of the Israeli State.
Col.lectively, they amount to the impo ition of a regime of racial domination and
sy tematic oppression on the Palestinian people, 165 which the State i choosing to
maintain and further entrench.
c. Third, relatedly, the duration of the occupation - since 1967 - and the escalation of
discriminatory acts in recent years is evidence of an intention to maintain in place the
existing regime of racial domination. Indeed, Israel's ongoing facilitation of further
settlement activity in the Occupied Pale tinian Territory including East Jerusalem,
further entrenches this discriminatory regime. 166 Moreover, recent tatements by senior
political leader demonstrates an intention that the settlements be permanent. 167
d. Fourth, there exists a context of dehumanizing language and contempt directed at the
Palestinian people, as a group. This has included, in recent years, inflammatory and racist
statements by high-level political leaders. For instance, in March of this year, Bezalel
Smotrich, Israel's Minister of Finance, called for the Palestinian village of Huwara to be
'wiped out' .168 This was days after a violent rampage of I raeli ettlers through the
village. 169 Smotrich was also reported a aying that there is no such thing as
Palestinians because there is no such thing as th Palestinian people.' 170 motrich
remains the Minister of Finance, and has also been granted legal authority over the
administration of much of civilian life in Area C of the West Bank, including a
programme to expand existing settlements. 171
117. More widely, in its most recent Concluding Observations on Israel's periodic reports, the
Committee on the Elimination of Racial Discrimination expressed its concern at the 'tide of
racist hate speech in public discourse, in particular by public officials, political and religious
leaders, in certain media outlets and in school curricula and textbooks' and the 'proliferation of
racist and xenophobic acts' a~ainst non-Jewish minorities, including Palestinians in the
Occupied Pale tinian Territory. 17
118. Taken together, there is only one inference that can reasonably be drawn from the facts and the
wider context. It is that these inhuman acts of apartheid are being undertaken for the purpose of
establishing and maintaining domination by Jewish Israelis in the Occupied Palestinian Territory
Concluding observations of the Committee on the Elimination of Racial Discrimination - Israel, 3 April 2012,
CERD/C/ISR/CO/14-16, para 24; Human Rights Council, Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, and in the occupied Syrian Golan, 20 April 2023, NHRC/Res/52/35, para 7(c).
165 Report of Special Rapporteur Michael Lynk to the Human Rights Council, 2022, A/HRC/49/87, paras 38-45.
166 UNGA Resolution 77/126, 15 December 2022, A/Res/126; UNGA Resolution 76/82, 15 December 2021, A/Res76/82.
167 Independent International Commission ofinquiry Report, 14 September 2022, A/77/328, paras 52-53.
168 The Times of Israel, 'US prods PM to condemn Smotrich's "repugnant, disgusting" call to wipe out Huwara', 2 March 2023.
169 BBC News, 'Settlers rampage in West Bank villages after Israelis killed' , 27 February 2023.
170 The Times of Israel, 'Smotrich says there's no Palestinian people, declares his family "real Palestinians'", 20 March 2023 .
171 The Times of Israel , 'Smotrich handed sweeping powers over West Bank, control over settlement planning', 23 February 2023;
The Times of Israel, 'Netanyahu hands Smotrich full authority to expand existing settlements', 18 June 2023.
172 Committee on the Elimination of Racial Discrimination, Concluding Observations on the Combined Seventeenth to Nineteenth
Reports of Israel, 27 January 2020, CERD/C/ISR/CO/17-19, para 26.
33
and Israel over Palestinians in the Occupied Palestinian Territory and the Palestinian people as a
whole and systematically oppressing them.
119. On this basis, apartheid's specific intent requirement is met.
E. Conclusion -Apartheid against the Palestinian people
120. Israel's measures and practices against Palestinians in the Occupied Palestinian Territory,
including East Jerusalem, and Israel breach the prohibition of apartheid in customary
international law and breach the obligation in Article 3 of ICERD to 'prevent, prohibit and
eradicate all practices of this nature in territories under their jurisdiction':
a. First, these measures and practices fulfil the material element of apartheid, as set out in
Articles 2(c) and 2(d) of the Apartheid Convention. Together with other discriminatory
acts entailing violations of the rights of Palestinians, these measures and practices
constitute a prolonged and ongoing regime of racial domination and oppression.
b. Second, these measures and practices are committed against members of a racial group -
Palestinians in the Occupied Palestinian Territory and the Palestinian people as a whole.
c. Third, these measures and practices are committed with apartheid's specific intent. They
are committed for the purpose of establishing and maintaining domination by Jewish
Israelis in the Occupied Palestinian Territory and Israel over Palestinians in the Occupied
Palestinian Territory and the Palestinian people as a whole and systematically oppressing
them.
V. LEGAL CONSEQUENCES ARISING FROM ISRAEL'S PRACTICE OF APARTHEID
121. The question put by the General Assembly asks about the legal consequences that arise from
Israel's internationally wrongful acts including its policies and practices. This may be
understood as referring to legal consequences for Israel itself, for other States, and for the United
Nations.
A. The Peremptory Status of Apartheid in Customary International Law
122. In considering the legal consequences that arise from Israel's imposition of a regime of apartheid
and violation of the Palestinian people's right to self-determination, one crucial feature is the
status of the prohibition of apartheid in customary international law as a peremptory norm of
general international law.
123. In this respect, the Commentary to the Articles on State Responsibility, adopted by the
International Law Commission in 2001 , Ii ts 'racial di crimination and apartheid' a examples of
peremptory norms that have attracted 'widespread agreement' .173 This statu is reinforced by the
inclusion of 'the prohibition of racial discrimination and apartheid' in the Annex to the ILC's
-onclu ion on Identification and L gal Consequences of Peremptory orms of General
International Law, adopted in 2022. In his 4th Report, the Special Rapporteur noted that there is
'ample State practice recognizing the prohibition of apartheid and racial discrimination as a
173 Commentary to Article 40, para 4, Articles on State Responsibility,
34
peremptory norm of general international law.' 174 Indeed there is no State on record defending
the lawfulness of imposing such a regime of racial domination.
B. Legal Consequences for Israel
124. Israel has violated, and continues to violate, the prohibition of apartheid in customary
international law and Article 3 of ICERD. These are unlawful acts of a continuing character.
125. First, Israel is under an obligation to immediately cease the imposition of a regime of apartheid
against the Palestinian people. 175
a. This obligation entails dismantling - in full - the regime of institutionalized discrimination
against Palestinians in the Occupied Palestinian Territory and in Israel.
b. This obligation also entails the cessation of each wrongful act of apartheid. 176 This
includes, but is not limited to, the establishment of settlements, the exploitation of natural
resources, the use of restrictive zoning practices, the infliction of disproportionate
restrictions on freedom of movement, the failure to take reasonable measures to protect
Palestinians from private violence, the imposition of measures designed to divide groups
in the Occupied Palestinian Territory on racial lines, the unjustified expropriation of
property, and other violations of the fundamental rights of Palestinians, and the imposition
of the blockade of Gaza.
126. Second, Israel is under an obligation to provide full reparation for the damage caused by its
imposition of a regime of apartheid against the Palestinian people. 177
127. As set out in Article 34 of the Articles on State Responsibility, '[f]ull reparation for the injury
caused by the internationally wrongful act shall take the form of restitution, compensation and
satisfaction, either singly or in combination ... ' 178
128. As to restitution, Article 35 of the Articles on State Responsibility provides:
A State responsible for an internationally wrongful act is under an obligation to make
restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution:
(a) is not materially impossible,·
(b) does not involve a burden out of all proportion to the benefit deriving from
restitution instead of compensation.
129. In the present context, re titution will entail:
174 ILC, Fourth Report on Peremptory Norms of General International Law (Jus Cogens) by Dire Tladi, Special Rapporteur,
A/CN.4.727, 31 January 2019, para 94. The prohibition on apartheid is also owed erga omnes - see Barcelona Traction, Light and
Power Company, Limited, Judgment, I. CJ. Reports 1970, p. 3, paras 33-34 in relation to racial discrimination.
175 Article 30, Articles on State Responsibility; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), I. CJ. Reports 1986, p. 14, para 292.
176 See similarly Wall Advisory Opinion, p. 156, para 151.
117 Factory at Chorz6w, Jurisdiction, Judgment No. 8, 1927, P.Cl.J., Series A, No. 9, p. 21; Article 31, Articles on State
Responsibility; Armed Activities on the Territory of the Congo, Reparations, 9 February 2022, para 70.
178 Article 34, Articles on State Responsibility; Armed Activities, Reparations, para 101.
35
a. The return of all land and property in the Occupied Palestinian Territory and Israel
belonging to Palestinians unlawfully expropriated or seized. As set out below, if the
return of this land and property is not materially possible, Israel is under an obligation to
compensate the owners for the damage suffered, including with interest.
b. The release of all Palestinians unlawfully detained in connection with the imposition of a
regime of apartheid and the facilitation of the return of those subject to forced removal.
c. The specific facilitation of the right of return of Palestinian refugees.
d. The annulment of all legislative, administrative and judicial acts, measures, or decrees
that constitute the regime of apartheid against the Palestinian people.
130. Article 36 of the Articles on State Responsibility reflects the general rule on compensation in
international law:
1. The State responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as such damage is not made good by
restitution.
2. The compensation shall cover any financially assessable damage including loss of profits
insofar as it is established.
13 I. Further, the notion of 'damage' is defined broadly in Article 31(2) as including both 'material'
and 'moral' damage. 179
132. In the present context, compensation will entail:
a. Compensation for all material damage caused to Palestinians' land and property by the
inhuman acts of apartheid. This includes all land and property for which restitution is not
possible, and losses caused by demolitions and expropriations. It also includes loss of
profit .180
b. Compensation for loss oflife, deprivations of liberty, and other injuries to Palestinians,181
as well as for the systemic violations of fundamental rights detailed above in the
imposition of a regime of apartheid.
c. Compensation for the systemic prevention of the Palestinian people from 'participation
in ... political, social, economic and cultural life' and from reaching their 'full
development' as a group.
d. Compensation for the systematic damage caused to, and exploitation of, natural resources
within the Occupied Palestinian Territory.
e. Compensation can be assessed by reference to the World Bank Study on economic costs
of the occupation, and the numerous UNCT AD reports on the deprivation of Palestinian
development. 182
179 Article 31 (2), Articles on State Responsibility; Armed Activities, Reparations, para 93 .
180 Article 36(2), Articles on State Responsibility.
181 Commentary to Article 36(2), Articles on State Responsibility, paras I 1-12, 17-20.
36
C. Legal Consequences/or all other States
133. As noted above, the peremptory status of the prohibition of apartheid entails distinctive
consequences for all States.
134. In the Articles on State Responsibility, the ILC set out specific consequences that follow from
what it termed 'seriou ' breaches of peremptory norms - defined as 'a gross or sy tematic failure
by the responsible tate to fulfil the obligation' .183 This requirement of a serious breach is met in
relation to the imposition of apartheid, entailing in this instance 'an intentional violation on a
large scale.' 184
135. Article 41 of the Articles on State Responsibility, in the relevant part, reads:
1. States shall cooperate to bring to an end through lawful means any serious breach within
the meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the
meaning of article 40, nor render aid or assistance in maintaining that situation. 185
136. Two particular obligations on all States will be drawn out - the obligation to cooperate to bring
to an end the situation of apartheid and the obligation not to render aid or assistance in
maintaining this situation.
137. First, all States are under an obligation to cooperate to bring to an end the situation of apartheid
against the Palestinian people:
a. This obligation requires what the ILC calls a 'joint and coordinated effort by all States'
to bring to an end this regime of apartheid. The most likely forum for such coordination
will be institutionalized forms of cooperation. This extends to action in the General
Assembly, the Security Council, and regional organizations. It also includes cooperation
with the responsible United Nations bodies and agencies working to bring an end to this
serious breach of international law. 186
b. This obligation also requires States to act outside of the context of institutionalized
cooperation. This is noted in the Commentaries to the ILC's Conclusions on
Identification and Legal Consequences of Peremptory Norms of General International
Law Uus cogens):
182 UNCTAD, The economic costs of the Israeli occupation for the Palestinian people: Arrested development and poverty in the
West Bank; UNCTAD, Economic costs of the Israeli occupation for the Palestinian people: poverty in the West Bank between
2000 and 2019 (2021 ), available at: http. :/lunctad.org/systcm/ liles/1 l'licial-dpcum nt/a76d309 en 0.pdf· World Bank, Economic
Monitoring Reports, available at: hit s://www.\ rid
bank .org/en/countr /westbankandgaza/publicatinn/economic-monitoring-report-ahlc; UNCT AD, 'The Economic Costs of the
Israeli Occupation for the Palestinian People: The Unrealized Oil and Natural Gas Potential' (2019) p. 15 .
183 Article 40(1), Articles on State Responsibility.
184 Article 40(8), Articles on State Responsibility.
185 Article 41, Articles on State Responsibility, reproduced in Conclusion 19, ILC, 'Conclusions on Identification and Legal
Consequences of Peremptory Norms of General International Law (}us cogens)', (2022) A/77/10.
186 Similarly, Chagos Advisory Opinion, p. 139, para 180 and further Article 42, ILC, Articles on the Responsibility of
International Organizations, Yearbook of the International Law Commission, 2011, vol. II, Part Two.
37
The obligation to cooperate to bring to an end serious breaches of peremptory
norms of general international law Ous cogens) may also be implemented through
noninslitutionalized cooperation, including through ad hoe arrangements by a group
of States acting together to bring to an end a breach of a perempto,y norm. 187
138. Second, all tate are under an obligation not to render aid or assistance in maintaining the
situation of apartheid against the Palestinian people.188
a. This obligation requires all States, to refrain from the provision of weapons, technology,
equipment, financial aid, as well as any other material support, to Israel in connection
with sustaining the institutionalized regime of discrimination.
b. This obligation also requires all States to regulate the activities of private actors,
including business entities, under their jurisdiction whose activities are contributing to
sustaining the institutionalized regime of discrimination against the Palestinian people.
This obligation, which arises as a matter of general international law and is binding on all
States, coheres with the approach of the Committee on Economic, Social and Cultural
Rights in its General Comment 24. 189 In that General Comment, the Committee
recognized the duty of States parties to the International Covenant on Economic, Social
and Cultural Rights 'to take steps to prevent and redress infringements of Covenant
rights that occur outside their territories due to the activities of business entities over
which they can exercise control.' 190
D. Legal Consequences for the United Nations
139. In the Wall Advisory Opinion, the Court held that:
the United Nations, and especially the General Assembly and the Security Council, should
consider what further action is required to bring to an end the illegal situation resulting from
the construction of the wall and the associated regime, taking due account of the present
Adv1. sory 0 p1.m.o n. 191
140. This applies equally in relation to the bringing to an end of the illegal situation of apartheid
against the Palestinian people.
VI. ISRAEL'S ADMINISTRATION OF THE OCCUPIED PALESTINIAN TERRITORY BREACHES THE RIGHT OF
THE PALESTINIAN PEOPLE TO SELF-DETERMINATION, AND IS ILLEGAL
141. Israel's Ministry of Foreign Affairs has clearly established that Israel launched a pre-emptive
strike on Egypt in 1967, stating:
187 Commentary to Conclusion 19, para 10, ILC, 'Conclusions on Identi fi cation and Legal Consequences of Peremptory Norms of
General International Law (Jus Cogens)' , (2022) A/77/ 10.
188 Similarly Wall Advisory Opinion, para 158. This obl igation complements the ordinary ru le on aid and assistance, set out in
Article 16 of the Articles on State Responsibility and held to be one of customary international law by the Court in the Bosnia v.
Serbia, p. 43, para 420.
189 Committee on Economic, Social and Cultural Rights, 'General Comment No. 24 - on State Obl igations under the International
Covenant on Economic, Social and Cultural Rights in the context of Business Activities', 20 17, E/C. 12/GC/24.
19° CESCR, General Comment No. 24, para 30.
191 Wall Advisory Opinion, para 160; Chagos Advisory Opinion, para 179.
38
On 22 May, in a move that constituted a casus be/Ii [an act that justifies war}, Egypt closed
the Straits of Ti ran to Israeli shipping, cutting off Israel 's only route to Asia and Iran, its
~,ai~ supplier of oi_l ·:· /nvoki,~g i~s inheren~ r~ght of se((-dcife,~se. Israel preentl~ed the
znev1table attack, strtkmg Egypt s mrforce while 1/s planes were st,I/ on the ground. -
142. Israel's use of force against Egypt and other Arab States in 1967 was a pre-emptive use of force
in the absence of an armed attack, and therefore an unlawful act of aggression in violation of
Article 2(4) and Article 51 of the UN Charter. Israel's presence in the Palestinian territory has
been illegal from the outset in 1967 and the consequent occupation is also illegal.
143. This illegality has been further compounded by Israel's colonization of the Palestinian territory
that started in 1967 and continue to this very day and its purported annexation of Palestinian
territory, in breach of article 2( 4) of the Charter and of the inadmissibility of the acquisition of
territory by force. Namibia reiterates its previously stated position that Israel's occupation of the
Palestinian territory (i.e., the West Bank, including Jerusalem, and the Gaza Strip) is illegal. 193
At the UN Human Rights Council, Namibia has highlighted that Israel's occupation is
characterized by grave violations 'including crimes against humanity of apartheid and
persecution committed by Israeli officials with the aim of prolonging the illegal occupation, and
suppressing the right to self-determination' and that international action is required to 'dismantle
the system of apartheid and put an end to the illegal occupation' .194
144. Israel's occupation of the Palestinian territory breaches the right to external self-determination of
the Palestinian people, which includes the exercise of the right of the Palestinian people to an
independent State.
145. The special status of right of the Palestinian people to external self-determination was
recognized under Article 22 of the Covenant of the League of Nations. That Covenant classified
Palestine as a Class A mandate, whose 'existence as independent nations can be provisionally
recognized subject to the rendering of administrative advice and assistance by a Mandatory until
such time as they are able to stand alone'. As the International Court of Justice outlined in the
Namibia Advisory Opinion), the 'ultimate objective' of the Mandate as a sacred trust was the
'self-determination and independence of the peoples concerned' .195
146. As such, the right of Palestinian self-determination continues as a 'sacred trust'. There is no
reversion of this sacred trust - no reversion back to a colonial status. For this reason, Israel
cannot argue that the Palestinian territory constituted a no-man's land, or that there was a
missing sovereign. As the Court in the Namibia Advisory Opinion clearly highlighted in relation
to South Africa, '[t]o accept the contention of the Government of South Africa on this point
would have entailed the reversion of mandated territories to colonial status, and the virtual
replacement of the mandates regime by annexation, so determinedly excluded in I 920.' 196
147. In 1948, Israel seized control of78% of Mandatory Palestine, in breach of the 'sacred trust'. In
1967, Israel occupied the remainder of Mandatory Palestine and has pursued ever since policies
192 Israel Ministry of Foreign Affairs, ' 1967: The Six-Day War and the Historic Reunification of Jerusalem (2013).
193 Item: 7 General Debate (Cont'd) - 31st Meeting, 51st Regular Session of Human Rights Council (30 September 2022),
Nami bia. Ms. I lillcni Tangi deyarno ' hikono.o (at 30:46).
194 Item: 7 General Debate (Cont'd)- 47th meeting, 52nd Regular Session of Human Rights Council, amib ia, (at 01:15).
195 Namibia Advisory Opinion, para 53.
196 Namibia Advisory Opinion, para 57.
39
aimed at further annexing Palestinian territory. As a continuing act of aggression and a denial of
the right of the Palestinian people to external self-determination, the occupation of the
Palestinian territory is in breach of peremptory norms of international law. Israel's continued
presence in the Occupied Palestinian Territory is analogous to South Africa's continued
presence in Namibia at the time of the Namibia Advisory Opinion. In this respect, the Court
determined 'that the continued presence of South Africa in Namibia [ was] illegal and contrary to
the principles of the Charter' .197
148. The right of the Palestinian people to national independence and sovereignty has been
recognized in numerous UN resolutions. For example, UN General Assembly Resolution 3236
(XXIX) (1974) expressly recognizes the right of the Palestinian people to self-determination
without external interference, and the 'right to national independence and sovereignty', and part
2(a) of General Assembly Resolution 3376 (1975), provides for 'the right to self-determination
without external interference and the right to national independence and sovereignty'. The most
recent General Assembly Resolution 77/208 of 2022 'reaffirms the right of the Palestinian
people to self-determination including the right to their independent State of Palestine'. 198
149. The exercise of Palestinian self-determination and Statehood has also been severely impaired by
the imposition of unlawful measures (including the expansion of settlements and the
construction of the walland its associated regime in the West Bank, including East Jerusalem). 199
The Palestinian people have been deliberately prohibited from gathering and exercising their
inalienable and collective right to self-determination as a result of decades of imposed strategic
fragmentation, placing them in different legal and administrative domains and across various
spatial geographies in Palestine and exile, by virtue of Israel's regime of racial discrimination
and domination. The right to self-determination encompasses sovereignty over natural resources
and wealth, most of which has been unlawfully appropriated, exploited, depleted and pillaged by
the Occupying Power - oftentimes together with Israeli and multinational private and corporate
actors.
VII. LEGAL CONSEQUENCES ARISING FROM ISRAEL'S ILLEGAL OCCUPATION
150. In addition to the legal consequences set out in this written statement arising from the imposition
of a regime of apartheid, there are also key legal consequences which the Court provided for in
the Namibia advisory opinion, and which Namibia requests should be applied in the case of
Israel's illegal occupation of the Palestinian territories. These include the following
consequences:
a. The continued presence of Israel in the Occupied Palestinian Territory and Mandate
Territory being illegal, Israel is under obligation to withdraw its administration from
occupied Palestine immediately and thus put an end to its occupation of the Territory.
b. Member States of the United Nations are under obligation to recognize the illegality of
Israel's presence in the Occupied Palestinian Territory and the invalidity of its acts on
behalf of or concerning Palestine, and to refrain from any acts and in particular any
197 UNSC Res 264 The Situation in Namibia (20 March 1969), para. 2; UNSC Res 276 (30 January 1970); See also
A/RES/2403(XXIII), 16 December l 968.
198 Such a right has also been recognized in UNGA Resolution 2672 (XXV) of 1970 and UNGA Resolution 3236 (XXIX) of
1974, and reiterated many times since.
199 International Criminal Court, Prosecution request pursuant to article 19(3) for a ruling on the Court's territorial jurisdiction in
Palestine, No. ICC-01/18 (22 January 2022) para 9.
40
dealings with the Government oflsrael implying recognition of the legality of, or lending
support or assistance to, such presence and administration.
c. Member States are under obligation to abstain from entering into treaty relations with
Israel in all cases in which the Government of Israel purports to act on behalf of or
concerning the Occupied Palestinian Territory.
d. Member States, in compliance with the duty of non-recognition are obliged to abstain
from sending diplomatic or special missions to Israel including in their jurisdiction the
Occupied Palestinian Territory.
e. Member States are obliged to abstain from entering into economic and other forms of
relationship or dealings with Israel on behalf of or concerning the Occupied Palestinian
Territory which may entrench its authority over the Territory.
f. The termination of the Mandate and the declaration of the illegality of Israel's presence in
the Occupied Palestinian Territory are opposable to all States in the sense of barring erga
omnes the legality of a situation which is maintained in violation of international law: in
particular, no State which enters into relations with Israel concerning the Occupied
Palestinian Territory may expect the United Nations or its Members to recognize the
validity or effects of such relationship, or of the consequences thereof.
g. All States should bear in mind that the injured entity is a people which must look to the
international community for assistance in its progress towards the goals for which the
sacred trust was instituted, namely self-determination.
VIII. CONCLUSION AND SUMMARY
151. For the reasons set out above, Namibia respectfully submits the following conclusions:
a. The Court is competent to issue this Advisory Opinion and no compelling reasons
prevent it from doing so.
b. With respect to the question's reference to Israel's ' adoption of related discriminatory
legislation and measures', the Court should define the prohibition of apartheid in
customary international law and Article 3 of ICERD.
c. The definition of apartheid in customary international law and in Article 3 of ICERD is
provided by Article 2 of the Apartheid Convention.
d. The prohibition of apartheid in customary international law and Article 3 of ICERD is
binding on Israel, and is applicable in Israel and the Occupied Palestinian Territory.
e. Israel's discriminatory practices against Palestinians in the Occupied Palestinian
Territory and the Palestinian people, as a whole, breach the prohibition of apartheid in
customary international law and the obligation in Article 3 of ICERD to prevent, prohibit
and eradicate all practices of apartheid in territories under its jurisdiction.
f. The Palestinian people have a continuing inalienable right to exercise external selfdetermination,
which continues as a sacred trust since the ending of the Mandate.
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g. As a consequence, Israel is bound to cease the imposition of its illegal occupation of the
Palestinian territory and regime of apartheid against the Palestinian people and to provide
full reparation to the Palestinian people.
h. As a consequence, all States are bound to cooperate in bringing to an end the illegal
occupation and the illegal situation of apartheid against the Palestinian people, not to
recognize that situation as lawful, and to refrain from rendering any aid or assistance in
maintaining the situation.
1. It is important to note that the resolutions of the UN General Assembly call for Israel's
'unconditional and total withdrawal', meaning that withdrawal is not to be made the
subject of negotiation but is, rather the termination of an internationally wrongful act.200
It is the position of Namibia that there can be no negotiations or qualifications placed on
the termination of internationally wrongful acts.201
Dated at Windhoek, Namibia on this __ day of ____ 2023
Netumbo Nandi-Ndaitwah, MP
Deputy Prime Minister and
Minister of International
Relations and Cooperation
ON BEHALF OF THE
GOVERNMENT OF THE
REPUBLIC OF NAMIBIA
200 UNGA Resolution 36/147E Res (16 December 1981); UNGA Resolution 36/226A (17 December 1981); UNGA Resolution
37/123F (20 December 1982); UNGA Resolution 38/180D (19 December 1983); UNGA Resolution 39/146A (14 December
1984); UNGA Resolution 40/168A (16 December 1985); UNGA Resolution 41/162A (4 December 1986); UNGA Resolution
42/2098 ( 11 December 1987); UNGA Resolution 43/54A.
201 See Imseis, Negotiating the Illegal: On the United Nations and the lllegal Occupation of Palestine, 1967- 2020, (2020) 31(3)
EHL 1055.
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