Written statement of Pakistan

INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND
PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN
TERRITORY, INCLUDING EAST JERUSALEM
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT
SUBMITTED BY THE ISLAMIC REPUBLIC OF PAKISTAN
25 JULY 2023
Table of Contents
I. Introduction .............................................................................................................................. 1
II. Jurisdiction of the ICJ to Render the Requested Advisory Opinion ....................................... 3
A. The Meaning of “Questions of a Legal Nature” .............................................................. 4
B. The Discretionary Authority of the ICJ to Render Advisory Opinions ........................... 4
III. Questions of International Law arising out of the Request for the Advisory Opinion ............. 5
A. The Right to Self-Determination ..................................................................................... 5
B. The Law on the Use of Force – Jus ad Bellum ................................................................ 8
C. Illegal Occupation as an Issue of International Humanitarian Law (IHL) .................... 10
D. Discriminatory Legislation and Measures and the Question of Apartheid .................... 11
i. Legal Definitions: The Crime of Apartheid in International Law ........................... 12
ii. Apartheid in the Occupied Palestinian Territory ..................................................... 14
E. Other Violations of IHL and International Human Rights Law .................................... 17
i. Prohibition on forcible transfer ................................................................................ 17
ii. Prohibition on transfer of occupying power’s population into occupied territory ... 18
iii. Property Rights under Occupation Law ................................................................... 18
iv. International Human Rights Law ............................................................................. 18
IV. Legal Consequences of a Finding of Violations of International Law ................................... 21
A. Legal Consequences of those Violations for Israel ........................................................ 21
B. Legal Consequences for Other States ............................................................................ 24
C. Legal Consequences for the United Nations .................................................................. 28
V. Final Submissions ................................................................................................................... 29
1
I. Introduction
1. In Resolution 77/247 of 30 December 2022, the United Nations General Assembly
(UNGA) requested an Advisory Opinion from the International Court of Justice (hereinafter
referred to as ICJ or the Court) in the following terms:
“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 question
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?”1
2. By its Order of 3 February 2023, the ICJ fixed the date of 25 July 2023 as the time-limit
within which written statements on the questions may be presented to the Court.2 The Court
decided that all Member States of the United Nations (UN) as well as the observer State of
Palestine are entitled to file written statements. It also decided subsequently that the League of
Arab States, the Organisation of Islamic Cooperation, and the African Union may participate in
the advisory proceedings.3
3. Pakistan is filing this written statement in accordance with the aforementioned Order of
the Court.This written statement is structured in the following way:
(a) Section II will briefly consider the jurisdiction of the Courtin light of its statutory
provisions, precedents and discretionary authority to render the requested Advisory
Opinion. In Pakistan’s view, the Court is competent to issue this opinion and there
are no compelling reasons preventing it from doing so.
1UNGA Res 77/247, UN Doc A/RES/77/247 (adopted on 30 December 2022), para. 18.
2 ICJ, Legal Consequences arising from the Policies and Practices of Israel in Occupied Palestinian Territory,
including East Jerusalem (Request for an Advisory Opinion), Order of 3 February 2023, p. 2.
3 ; ICJ, ‘The Court authorizes the League of Arab States to participate in the proceedings’ (ICJ Press Release No
2023/12, 10 March 2023); ICJ, ‘The Court authorizes the Organisation of Islamic Cooperation to participate in the
proceedings’ (ICJ Press Release No 2023/16, 31 March 2023); ICJ, ‘The Court authorizes the African Union to
participate in the proceedings’ (ICJ Press Release No 2023/19, 13 April 2023)
2
(b) Section III will address questions of international law arising out of the UNGA’s
request for the Advisory Opinion from the Court, focussing on five substantive
issues, on the basis of the rules and principles of international law, including the
UN Charter, international humanitarian law, international human rights law,
relevant resolutions of the UN Security Council and UNGA, customary
international law and jurisprudence of the ICJ, along the following lines:
(i) First, the right to self-determination will be emphasized as one of the basic
principles and jus cogens norm of international law, and a right erga omnes.
The violations by Israel4 in denying this fundamental right to Palestinians on
the basis of its prolonged occupation as well asde facto and de jure
annexation of Occupied Palestinian Territory (OPT)5 will also be covered.
(ii) Second, in terms of the law on the use of force – jus ad bellum, the
prohibition on the use of force, and the inapplicability of Israel’s exercise of
the right of self-defence in the given context, will be elaborated to highlight
Israel’s prolonged occupation of OPT as a grave breach of the principles of
international law.
(iii) Third, considering illegal occupation as an issue of international
humanitarian law, Israel’s non-fulfilment of its legal obligations as an
occupying power will be explained.
(iv) Fourth, the discriminatory legislation and measures and the question of
apartheid will be dealt at length to expound on the legal definition of
apartheid, the recognition of its prohibition as a peremptory norm (jus
cogens) and crime against humanity, and the crime of apartheid in OPT on
the basis of Israel’s inhuman acts, with the intent to establish or maintain
domination of Jewish Israelis over Palestinians, in the context of an
institutionalized regime of systematic racial discrimination and oppression.
(v) Fifth, other violations of international humanitarian law and international
human rights law will cover Israel’s illegal policies and actions to transfer
its population to the occupied territory, forcibly evict protected persons from
the occupied territory, and confiscate and demolish property in the occupied
territory, to stress that the establishment of illegal settlements by Israel to
change the demographic composition and character of OPT contradicts the
4 The Government of Pakistan does not recognize the State of Israel.
5Occupied Palestinian Territory (OPT) covers Gaza, West Bank and East Jerusalem under the effective control and
siege of the Israeli Government and Forces.
3
Fourth Geneva Convention and the universal human rights treaties which
also remain applicable in armed conflict.
(c) Section IV will elaborate on the legal consequences that arise for Israel, for all other
States, and for the UN from Israel’s violation of international law in OPT. It will
make the case that Israel, on account of its violations of jus cogens norms (use of
force, denial of the right to self-determination, prolonged occupation,
discriminatory legislation, illegal settlements to change the demography of OPT,
etc.), is bound to cease its internationally wrongful conduct and make reparations
for compensating the Palestinian people. The breaches of jus cogens norms by
Israel create erga omnes obligation on all States to cooperate with each other and
with the UN to put an end to these violations, and also give rise to erga omnes
partes obligation on all States – which not only necessitate condemnation, nonrecognition
and non-assistance of the Israeli actions in OPT, but also dictate the
condemnation and non-recognition of the duplication of Israeli models in other
similar factual and legal situations.
(d) Section V sets out final submissions encompassing Pakistan’s requests to the Court
regarding its response to the UNGA’s request for Advisory Opinion.
4. Pakistan reserves the right to address other substantive questions of international law,
including the legal consequences that arise for all States, in its written comments on the written
statements filed by other States and international organizations, as well as during the subsequent
oral proceedings.
II. Jurisdiction of the International Court of Justice to Render the
Requested Advisory Opinion
5. Article 96 of the UN Charter gives the Security Council and the UNGA the authority to
request the ICJ to issue an advisory opinion on “any legal question.” On the basis of past
precedents and practices of the Court, as discussed below, the Court has the jurisdiction to render
the opinion requested. The questions before the Court are of a legal nature, and can be located in
a broader frame of reference than the settlement of a bilateral dispute; thus, giving the opinion
would not circumvent the principle of consent.
6. The first paragraph of Article 65 of the Court’s Statute provides the authority to render
the requested advisory opinion, in the following terms:
“The Court may give its opinion on any legal question on the request of whatever
body authorized by or in accordance with the UN Charter to make such a
request”.
4
7. Article 96 of the UN Charter provides that the subject matter of an advisory opinion from
the Court must be a question of a legal nature, as a condition for the competence of the Court to
issue its advisory opinion, irrespective of whether such request for an opinion came from the
UNGA, the Security Council, or some other UN organs. This requires defining the intended
meaning of a question of a legal nature that gives the Court jurisdiction to issue advisory
opinions. This requires a discussion of the extent of the discretionary authority of the Court in
deciding to render or not render an opinion.
8. It may be inferred from the text of Article 65 of the Court’s Statute that it may refrain
from issuing such an opinion, even when the conditions for requesting an opinion are satisfied.
In the present case, the Court may like to consider whether the questions on which the UNGA
requested its advisory opinion in Resolution 77/247 of 30 December 2022, constitute a question
of a legal nature or not.
A. The Meaning of “Questions of a Legal Nature”
9. The issues pertaining to the situation of human rights, self-determination, the use of force
et al. in the Palestinian territory occupied by Israel since 1967, including the legal consequences
of Israeli practices in the OPT, fall squarely within the UN General Assembly’s express powers
in accordance with Article 10 of the UN Charter, and are appropriately framed as questions of
legal nature as per UNGA resolution 77/247 of 30 December 2022.
10. Reviewing of the Court’s consistent precedents related to its advisory function reveals
that it has refused objections to its advisory jurisdiction on the grounds that the relevant
questions are of a political nature, as opposed to legal nature.
11. In the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory 6 and in Interpretation of the Agreement of 25 March 1951
between the WHO and Egypt, the Court held that: if a legal question also has political aspects, it
does not suffice to deprive it of its character as a “legal question” and to “deprive the Court of a
competence expressly conferred on it by its Statute”.
B. The Discretionary Authority of the International Court of Justice to
Issue or Refrain from rendering Advisory Opinions
12. Under Article 65 of its Statute, the Court may decline to give an opinion falling within its
jurisdiction to protect the integrity of its judicial function 7 . However, the Court has also
characterized advisory opinions as its “participation in the activities of the Organization [the
UN]”; thus, “in principle”, the Court tends not to refuse such participation, unless there are
6 Hereinafter referred to as Wall.
7Wall and Advisory Opinion on Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in
1965 – hereinafter referred to as Chagos.
5
“compelling reasons” to do so8. One such compelling reason is “lack of consent of an interested
State”, which “may render the giving of an advisory opinion incompatible with the Court’s
judicial character”9,or it “would have the effect of circumventing the principle that a State is not
obliged to allow its disputes to be submitted to judicial settlement without its consent”10 .
13. The Court has never declined to respond to a request for an advisory opinion based on
considerations of judicial impropriety, including when the request related to existing
disputes11.The Court has limited the relevance of consent in advisory proceedings by placing the
issues raised in the requests “in the broader frame of reference”12.
III. Questions of International Law arising out of the Request for an
Advisory Opinion
14. This section will focus on five substantive issues, in each case framing potential
questions arising out of UNGA’s request. These are:
A. The right to self-determination;
B. The law on the use of force –jus ad bellum;
C. Illegal occupation as an issue of international humanitarian law;
D. Discriminatory legislation and measures and the question of apartheid; and
E. Other violations of international humanitarian law and international human rights
law.
A. The Right to Self-Determination
15. The key issue addressed to the Court by the UNGA relates to the legal consequences of
“the ongoing violation by Israel of the right of the Palestinian people to self-determination” on
the basis, inter alia, of the “prolonged occupation, settlement and annexation of the Palestinian
territory occupied since 1967”.
16. In the Chagos case, the Court stated that “The nature and scope of the right to selfdetermination
of peoples…... were reiterated in the [Friendly Relations Declaration]. By
8Wall, para. 44; and Chagos, para. 91
9Chagos, para. 90
10Advisory Opinion on Western Sahara, hereinafter referred to as Western Sahara, Para 33
11Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt; Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 – hereinafter referred to as Namibia; Western Sahara; Applicability of Article VI, Section 22, of the
Convention on the Privileges and Immunities of the United Nations (Mazilu); Wall; and Chagos.
12 In Western Sahara it stated that the legal questions of which the Court was seized were located “in a broader
frame of reference than the settlement of a particular dispute and embrace[d] other elements” (para. 38).
6
recognizing the right to self-determination as one of the ‘basic principles of international law’,
the Declaration confirmed its normative character under customary international law”13.
17. In the Wall case, the ICJ found that the “construction [of the Wall], along with measures
taken previously, thus severely impedes the exercise by the Palestinian people of its right to selfdetermination,
and is therefore a breach of Israel’s obligation to respect that right.”
18. The ICJ has observed in the Wall case that: “The Court recalls its previous case law,
which emphasized that current developments in “international law in regard to non-selfgoverning
territories, as enshrined in the Charter of the United Nations, made the principle of
self-determination applicable to all [such territories]”, and that the right of peoples to selfdetermination
is today a right erga omnes.”
19. In the East Timor (Portugal v. Australia) case, the Court held that “The principle of selfdetermination
of peoples has been recognized by the United Nations Charter and in the
jurisprudence of the Court.”14
20. Articles 1(2) and 55 of the UN charter on “the principle of equal rights and selfdetermination
of peoples” and Common Article 1 of the International Covenant on Civil and
Political Rights, and the International Covenant on Social, Economic and Cultural Rights
recognize self-determination as a collective human right. The UN General Assembly has
affirmed in the Declaration on Principles of International Law Concerning Friendly Relations
and Cooperation among States in accordance with the Charter of the United Nations that “[b]y
virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter
of the United Nations, all peoples have the right freely to determine, without external
interference, their political status and to pursue their economic, social and cultural
development” 15 . It has further affirmed that “subjection of peoples to alien subjugation,
domination and exploitation constitutes a violation of the principle, as well as a denial of
fundamental human rights, and is contrary to the Charter.”16
21. The application of the aforementioned principle of equal rights to Palestine is also no
longer in dispute. The said principle was also rooted in UNGA Resolutions 181 (II) of 29
November 1947, 2535 B (XXIV) of 10 December 1969, 2649 (XXV) of 30 November 1970,
2672 C (XXV) of 8 December 1970, 3236 (XXIX) of 22 November 1974, 58/163 of 22
December 2003; and in UNSC Resolution 242 (1967) of 22 November 1967, confirmed by
Resolution 338 (1973) of 22 October 1973, Resolution 1397 (2002) of 12 March 2002, and
Resolution 1515 (2003) of 19 November 2003.
13 Chagos (para. 155)
14 See also Namibia (paras. 52-53); Western Sahara (paras. 54-59)
15 UNGA Declaration on Principles of the International Law concerning Friendly Relations and Cooperation among
states in accordance with the Charter of the UN, A/RES/2625(XXV), 24 Oct 1970 – hereinafter referred to as
Friendly Relations Declaration.
16 Ibid
7
22. There are two central legal considerations in the context of violation of the right to selfdetermination
due to the illegality of an occupation:
(i) A prolonged occupation, with its de facto and de jure annexations and various
violations of international humanitarian law, is a breach of the right to selfdetermination.
Moreover, these violations together indicate that the military
necessity and proportionality requirements for self-defence, are no longer
satisfied, making the occupation illegal on the basis of jus ad bellum;
(ii) A breach of self-determination in its own right provides a stand-alone ground for
illegality of the occupation. The establishment of the “occupation” breaches the
right to self-determination and renders the “occupation” illegal.
23. Prolonged occupation breaches the right of the occupied people to self-determination. It
is clear from the UNGA resolutions mentioned in paragraph 19 above that the illegality of the
occupation was considered to derive from a continuing act of aggression. UNGA has adopted
numerous resolutions calling for Israel’s “unconditional and total withdrawal.”This means
withdrawal is not to be made the subject of negotiations, but is rather the termination of an
internationally wrongful act.
24. In terms of State responsibility, the International Law Commission (ILC) Commentary
refers to the prohibition of both formal and implied acts of recognition of an “attempted
acquisition of sovereignty over territory through the denial of the right to self-determination of
peoples”17. Any forcible action to deprive people of their right to self-determination is prohibited
under the Friendly Relations Declaration. Therefore, any use of force to deny self-determination
is an unlawful use of force.
25. In the Namibia case,where the UNGA formally ended the Mandate in 1966, recognizing
South West Africa (later renamed Namibia) as a territory having international status until its full
independence was recognized, the Court noted that the UN Charter expanded the concept of
“sacred trust” to apply to “all territories whose peoples have not yet attained a full measure of
self-government” and that territories under a “colonial regime” retained the right to selfdetermination.
The ICJ determined that “the continued presence of South Africa in Namibia
being illegal, South Africa is under obligation to withdraw its administration from Namibia
immediately and thus put an end to its occupation of the Territory”18.
26. Quite apart from the prolonged nature of an occupation, the right to self-determination is
violated in situations where the occupying power annexes all or parts of the occupied territory.
The Friendly Relations Declaration affirms that “The territory of a colony or other Non-Self-
17Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, Report of
the International Law Commission on the work of its fifty-third session, P114.
18Namibia Advisory Opinion
8
Governing Territory has, under the Charter, a status separate and distinct from the territory of the
State administering it; and such separate and distinct status under the Charter shall exist until the
people of the colony or Non-Self-Governing Territory have exercised their right of selfdetermination
…”19
27. This principle means that the OPT has a separate status from Israel and that distinct status
is to be maintained until the Palestinian people have exercised their right to self-determination.
Clearly, any annexation of territory would be a breach of the obligation to maintain that separate
and distinct status.
28. It is worth noting that annexation which breaches the right to self-determination may take
a number of forms. The clearest case of such a breach would be an attempt to annex occupied
territory de jure. However, there may be a breach of the right to self-determination on the basis
of a de facto annexation by the occupying power. In the Wall case, the Court stated that it
“considers that the construction of the wall and its associated regime create a ‘fait accompli’ on
the ground that could well become permanent, in which case, and notwithstanding the formal
characterization of the wall by Israel, it would be tantamount to de facto annexation.”
29. The prolonged occupation by a State of foreign territory and peoples is by that very fact a
violation of the right to self-determination. In situations of occupation, the occupied people are
unable to determine their own political status and unable to pursue their economic, social and
cultural development. As one leading author and judge put it “alien subjugation, domination and
exploitation” covers those situations in which any one Power dominates the people of a foreign
territory by recourse to force. 20 ”He goes on to explain that, “[i]f this is correct, selfdetermination
is violated whenever there is a military invasion or belligerent occupation of a
foreign territory, except where the occupation – although unlawful – is of a minimal duration or
is solely intended as a means of repelling, under Article 51 of the UN Charter, an armed attack
initiated by the vanquished Power and consequently is not protracted.”
30. Finally, as already explained, even without annexation, permanence or a fait accompli
occupation which is prolonged in the sense that it lasts longer than the justifications which might
have existed for it under the law relating to the use of force, will violate the right to selfdetermination.
B. The Law on the Use of Force – Jus ad Bellum
31. The question put to the Court by the UNGA refers in para (a) to “the violation by Israel
of the right of the Palestinian people to self-determination, from its prolonged occupation”
(emphasis added).
19UNGA Declaration on Principles of the International Law concerning Friendly Relations and Cooperation among
states in accordance with the Charter of the UN, A/RES/2625(XXV), 24 Oct 1970
20Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge University Press, 1995) p. 99.
9
32. The prohibition of use of force applies in the relations between Israel and Palestine.
Israel has an obligation under customary international law not to use force against Palestine. The
obligation under customary international law is commonly taken to be identical to that contained
in Article 2(4) of the UN Charter. In the Wall case, the Court stated that:“The Court first recalls
Article 2, paragraph 4, of the United Nations Charter, which provides that ‘All Members shall
refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any other manner inconsistent with the
Purposes of the United Nations.”
33. An occupation, particularly one that results from an invasion or attack, constitutes an
ongoing use of force.To the extent that the legality of the occupation is claimed on notions of
self-defence, it must still respect the customary international law principles of necessity and
proportionality.
34. In the Wall case, the Court held that: “Article 51 of the Charter thus recognizes the
existence of an inherent right of self-defence in the case of armed attack by one State against
another State. However, Israel does not claim that the attacks against it are imputable to a foreign
State. The Court also notes that Israel exercises control in the Occupied Palestinian Territory and
that, as Israel itself states, the threat which it regards as justifying the construction of the wall
originates within, and not outside, that territory. The situation is thus different from that
contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel
could not in any event invoke those resolutions in support of its claim to be exercising a right of
self-defence. Consequently, the Court concludes that Article 51 of the Charter has no relevance
in this case.”
35. UNGA has stated that “[a]ggression is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations …”21. The UNGA further states that
“any military occupation, however temporary, resulting from such invasion or attack”22 shall
qualify as an act of aggression. Since all acts of aggression are a use of force, it must follow that
a military occupation is a use of force.
36. The law of occupation prevents the occupying power from treating the occupied territory
as if it were a portion of its own territory because the law assumes that the occupation is
temporary and that the occupying territory must be returned to the ousted sovereign.
Consequently, the use of armed force in the occupied territory cannot be considered an internal
employment of armed force.23
37. The prohibition of force also extends to the use of force “in any other manner inconsistent
21United Nations General Assembly Resolution 3314 (XXIX) on Definition of Aggression, adopted by consensus in
1974 (Art. 1)
22 Ibid (Art. 3.a.)
23Longobardo, The Use of Armed Force in Occupied Territory (Cambridge University Press, 2018) p. 112.
10
with the Purposes of the United Nations”. As the principle of self-determination is referred to in
Article 1(2) of the UN Charter as one of the Purposes of the United Nations, it may, thus, be
argued that use of force which deprives a people of their right to self-determination is a use of
force inconsistent with the Charter, even if the entity against which the force is being used is not
a State. The Friendly Relations Declaration, in interpreting the prohibition of force, proclaims
that “[e]very State has the duty to refrain from any forcible action which deprives peoples
referred to in the elaboration of the principle of equal rights and self-determination of their right
to self-determination and freedom and independence.”
C. Illegal Occupation as an Issue of International Humanitarian Law
38. This sub-section is focused on the conduct within the context of occupation. The law of
occupation is regulated under international humanitarian law as codified under the Geneva
Conventions. It may be helpful to think about the question here as to whether the illegality of an
occupation arises “internally” to international humanitarian law – that is, without reference to
other bodies of international law.
39. The traditional starting point has been that occupation is a factual phenomenon. As set
out in Article 42 of the Hague Regulations of 1907, occupation arises where territory ‘is actually
placed under the authority of the hostile army’. The occupation extends only to the territory
where such authority has been established and can be exercised. The Hague Regulations annexed
to The Hague's Fourth Convention of 1907 with Respect to the Laws and Customs of War on
Land (Articles 42 to 56) and the Fourth Geneva Convention on the Protection of Civilian Persons
at the Time of War signed on 12 August 1949, and Articles 27 to 34 and 47 to 78, dealt war
occupation and identified the authorities of the occupying power and the duties of the persons on
the occupied territory. They also identified the duties of the occupying power towards them and
the rights they are entitled to.
40. In the Wall case, on the question of the applicability of the Geneva and Hague
Conventions to Palestine or Occupied Palestinian Territory the Court stated that:
“The Court notes that, according to the first paragraph of Article 2 of the Fourth
Geneva Convention, when two conditions are fulfilled, namely that there exists an
armed conflict (whether or not a state of war has been recognized), and that the
conflict has arisen between two contracting parties, then the Convention applies,
in particular, in any territory occupied in the course of the conflict by one of the
contracting parties. The object of the second paragraph of Article 2, which refers
to ‘occupation of the territory of a High Contracting Party’, is not to restrict the
scope of application of the Convention, as defined by the first paragraph, by
excluding the territories not falling under the sovereignty of one of the contracting
parties, but simply to making it clear that, even if occupation affected during the
conflict met no armed resistance, the Convention is still applicable.”
11
41. Israel has specific legal obligations under the international humanitarian law towards the
territorial integrity of the occupied land, and public and private property, under Articles 46, 53,
55 of The Hague Regulations on War on Land dated 1907. These obligations have been
repeatedly reiterated and declared through numerous UNSC resolutions 24 calling on the
Government of Israel to respect and to comply with the provision of the Geneva Convention
relative to the Protection of Civilian Persons in the Time of War, as well as with the relevant
resolution of the Security Council, and reaffirm the overriding necessity to end the prolonged
occupation of the Palestinian territories occupied by Israel since 1967, including Jerusalem.
D. Discriminatory Legislation and Measures and the Question of Apartheid
42. The fourth set of issues flows from Israel’s “adoption of related discriminatory legislation
and measures.” In this respect, international humanitarian law and international human rights law
impose duties of non-discrimination on occupying powers.
43. As to the former, customary international humanitarian law prohibits “adverse distinction
in the application of international humanitarian law” on a set of protected grounds.25 As to the
latter, both the International Covenant on Civil and Political Rights(ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR) impose obligations of nondiscrimination
on State parties26. Israel is party to both of these Conventions, as well as a number
of other international human rights treaties, including the International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD)27. Moreover, in the Wallcase, the
Court confirmed both the extraterritorial application of the ICCPR and ICESCR, as well as their
applicability in occupied territories.28
44. The prohibition of apartheid is one existing in customary international law and under
Article 3 of ICERD, both of which are binding on Israel. However, the term “apartheid” in
Article 3 of ICERD is not defined in that instrument but is defined in the Apartheid Convention.
24UNSC Resolutions 242 (1967) of 22 November 1967, 267 (1969) of 3 July 1969, 298 (1971) of 25 September
1971, 338 (1973) of 22 October 1973, 446 (1979) of 22 March 1979, 452 (1979) of 20 July 1979, 465 (1980) of I
March 1980, 467 (1980) of 30 June 1980, 478 (1980) of 20 August 1980, 904 (1994) of 18 March 1994, 1073
(1996) of 28 September 1996, 1397 (2002) of 12 March 2002 and 1515 (2003) of 19 November 2003.
25Henckaerts and Doswald-Beck, Customary International Law (Vol 1, Cambridge University Press, 2005) (‘ICRC
Customary Study’) Rule 88.
264 International Covenant on Civil and Political Rights (opened for signature 19 December 1966, entered into force
23 March 1976) 999 UNTS 171 (‘ICCPR’) Article 26; International Covenant on Economic, Social and Cultural
Rights (opened for signature 19 December 1966, entered into force 3 January 1976) 993 UNTS 3 (‘ICESCR’)
Article 2(2). Israel ratified both of these conventions on 3 October 1991.
27 International Convention on the Elimination of All Forms of Racial Discrimination (entered into force, 4 January
1969) - ratified by Israel on 3 January 1979 (‘ICERD’). Other treaties to which Israel is a party, as provided for in
the UN Treaty Series Collection, include the Convention on the Elimination of All Forms of Discrimination against
Women (opened for signature 1 March 1980, entered into force 4 January 1969) 660 UNTS 195 (‘CEDAW’) and
the Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3 (‘CRC’), both of which were ratified by Israel on 3 October 1991.
28Wall Advisory Opinion, pp. 102–103
12
i. Legal Definitions: The Crime of Apartheid in International Law
45. The definition of apartheid requires the following enumerated acts to be practiced within
an institutionalized regime of systematic racial discrimination and oppression. As discussed
below, the Israeli occupation has created and deployed legal frameworks and institutions that
directly enable rampant violations of Palestinians’ human rights and suppress the exercise of
their civil and political rights. These frameworks and institutions, taken together with ongoing
long-term Israeli policies of land confiscation and dispossession, restriction of the movement of
Palestinians, and expansion of illegal Israeli settlements, systematically serve the purpose of
privileging and maintaining the domination of Jewish Israelis over Palestinians. Within this
context, Israeli policies and actions in the occupied Palestinian territories are far from isolated
incidents, but rather represent a systematic deployment of laws, policies, and institutions to
enshrine a dual legal regime that entrenches Israel’s control over Palestinians, and the
suppression of the rights of Palestinians as a group, while privileging the interests and nurturing
the growth and expansion of Jewish Israeli settlement communities.
46. While the term “apartheid” was originally coined and applied in the context of South
Africa, the crime of apartheid is well-recognized in international law and is understood to apply
universally. International law prohibits the crime of apartheid both as a matter of customary
international law and treaty law.
47. The analysis of the crime of apartheid in this submission is informed by the definitions
set forth in the Apartheid Convention and considers only acts that meet the requirements of both
instruments. The Apartheid Convention defines the crime of apartheid as “similar policies and
practices of racial segregation and discrimination as practiced in Southern Africa”, which include
“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.29”
48. Customary international law recognizes apartheid as a peremptory norm (jus cogens) and
prohibits the crime of apartheid. The ILC Special Rapporteur, in the fourth report on peremptory
norms of general international law, recognized the prohibition of apartheid as a peremptory norm
of general international law, from which no derogation is permitted.30 Practices of apartheid
committed in the context of an armed conflict also amount to a grave breach of Protocol I
Additional to the Geneva Conventions, which, notwithstanding that Israel is not a State Party to
Protocol I, is widely regarded as customary international law.31
29 Apartheid Convention, Art. 2.
30 International Law Commission, “Fourth Report on Peremptory Norms of General International Law (jus cogens)
by Dire Tladi, Special Rapporteur,” U.N. Doc. A/CN.4/727 at [94], 2019,
31See Henckaerts, Jean-Marie and Doswald-Beck, Louise, “Rule 88,” Customary International Humanitarian Law,
ICRC, 2005, https://www.icrc.org/en/doc/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf
(“State practice establishes this rule [prohibiting adverse distinction in the application of international humanitarian
13
49. The prohibition of apartheid is also codified in Article 3 of the International Convention
on the Elimination of All Forms of Racial Discrimination (ICERD), which both Israel and
Palestine have ratified. Under article 2 of ICERD, States “undertake to prevent, prohibit and
eradicate all practices of this nature in territories under their jurisdiction.” In short, although
Israel is not a State Party to the Apartheid Convention, or Protocol I Additional to the Geneva
Convention, the prohibition of the crime of apartheid extends to its laws, policies, and practices
in the OPT.
50. Furthermore, the applicability of international humanitarian law in the OPT due to
Israel’s decades-long occupation does not displace the applicability of international human rights
law or the prohibition of apartheid. As the Courtheld in the Armed Activities case, both branches
of law are applicable during armed conflict.32
51. The Human Rights Committee has adopted a similar approach, stating that “both spheres
of law [international humanitarian law and international human rights law] are complementary,
not mutually exclusive. 33 ” For purposes of the analysis here, it is important to note the
peremptory status of the prohibition on apartheid. Importantly, the prohibition of apartheid is
also enshrined in international humanitarian law within Protocol I Additional to the Geneva
Conventions.
52. The crime against humanity of apartheid, therefore, entails: (i) inhuman acts; (ii)
committed with the intent to establish or maintain the domination of one racial group over
another; and (iii) in the context of an institutionalized regime of systematic racial discrimination
and oppression. Article 2 of the Apartheid Convention outlines the list of “inhuman acts” that
may amount to acts of apartheid, when committed systematically for the purpose of establishing
or maintaining domination by one racial group over another.
53. Palestinians are a distinct racial group for purposes of the apartheid definition under
international law.34The understanding of the term “racial group” in international law has evolved
away from the traditional category of “race” to encompass broader group identification which
may form the basis of discrimination. In the absence of a clear definition of the term “racial
group” in the Apartheid Convention, the jurisprudence of international tribunals 35 and
international human rights law can be used to clarify the term.
law based on race, colour, sex, language, religion or belief, or political belief or other opinion, national or social
origin, wealth, birth or other status, or on any other similar criteria] as a norm of customary international law
applicable in both international and non-international armed conflicts.”).
32 See Armed Activities on the Territory of the Congo (Dem. Rep. of the Congo v. Uganda), Judgment, 2005 I.C.J.
Rep. 168, ¶ 215-221.
33See General Comment no. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on
the right to life, U.N. Doc. CCPR/C/GC/36,
34For a discussion of the issue of “racial groups” in the context of Israel-Palestine, see Dugard, John and Reynolds,
John, “Apartheid, International Law, and the Occupied Palestinian Territory,” Euro. J. of Int’l L. 24(3), August
2013, pp. 885-
35In Rutaganda, the ICTR held that group membership under the Genocide Convention was to be understood as “a
subjective rather than an objective concept” where “the victim is perceived by the perpetrator as belonging to a
14
54. The ICERD, which is referenced in the preamble of the Apartheid Convention, offers
further guidance to understanding the term “racial group.” The ICERD’s definition of “racial
discrimination” is broad and incorporates a subjective understanding similar to that used by
international criminal tribunals. In its definition of racial discrimination, Article 1 of the ICERD
clarifies that “race” is not the sole indicator of racial discrimination, but that it may cover “any
distinction, exclusion, restriction or preference based on race, colour, descent, or national or
ethnic origin.” In its 2019 review of Israel, the Committee on the Elimination of Racial
Discrimination (CERD) expressed grave concerns at the consequences of policies and practices
which amount to de facto segregation, and called on Israel “to eradicate all forms of segregation
between Jewish and non-Jewish communities,” and to “to take immediate measures to prohibit
and eradicate any such policies or practices which severely and disproportionately affect the
Palestinian population in the Occupied Palestinian Territory,” finding them to be in violation of
Articles 1(2), 1(3), 3 of ICERD.36
55. Finally, it should also be noted that Israeli law has interpreted the term “race” broadly,
extending the definition of racism to acts committed against parts of the population because of
their national origin.37
ii. Apartheid in the Occupied Palestinian Territory
56. A finding of apartheid in the OPT requires ascertaining whether the Israeli occupation
has committed: (i) inhuman act(s), (ii) with the intent to establish or maintain domination of
Jewish Israelis over Palestinians, (iii) in the context of an institutionalized regime of systematic
racial discrimination and oppression.
57. Israel’s deployment of a dual legal system in the OPT, and the resulting systematic
discrimination against Palestinians and subordination of Palestinians’ civil and political rights to
the rights of Jewish Israeli citizens settled in the OPT, amount to a breach of the prohibition of
apartheid under international law.
group slated for destruction.35” In Blagojevich and Jokic, the ICTY held that “a national, ethnical, racial or religious
group is identified by using as criterion the stigmatisation of the group, notably by the perpetrators of the crime, on
the basis of its perceived national, ethnical, racial or religious characteristics.
36Consideration of reports submitted by States parties under article 9 of the Convention: Concluding Observations,
Committee on the Elimination of Racial Discrimination, 19 March 2012, CERD/C/ISR/CO/14-16,
https://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.ISR.CO.14-16.pdf. Earlier in 2014, the Human Rights
Committee noted the existence of the two as separate groups and expressed concerns that “the Jewish and non-
Jewish population are treated differently in several regards.” Human Rights Committee, Concluding observations on
the fourth periodic report of Israel, CCPR/C/ISR/CO/4,
37 The Israeli Penal Code defines racism, in the context of the crime of “publication of racist incitement,” as
“persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against a
public or parts of the population, all because of their color, racial affiliation or national ethnic origin” (Penal Law
5737-1977
15
58. An examination of relevant Israeli law and practice, suggests that Israeli officials are
responsible for committing several inhuman acts as defined in Article 2 of the Apartheid
Convention, particularly Articles under 2(a), 2(c), and 2(f).
59. Article 2(a) of the Apartheid Convention relates to depriving members of a racial group
the right to life and liberty of person. Israel’s prevalent and well-documented practices of
arbitrarily detaining Palestinians under the guise of broadly defined security offenses, denying
Palestinian detainees’ basic fair trial and due process rights, using ill-treatment and torture with
impunity, and placing Palestinians in prolonged administrative detention without charges or trial
i.e. Military Order 165138, together can amount to the inhuman act of denying Palestinians the
right to liberty of person under Article 2(a)(ii) and 2(a)(iii). Israeli practices of tolerating, and in
certain cases, enabling and encouraging violent attacks by Israeli Jewish settlers on Palestinian
residents39 in the OPT constitute another basis for a finding of an inhuman act under Article 2(a)
of the Apartheid Convention.
60. Article 2(c) of the Apartheid Convention addresses the inhuman act of persecution and
encompasses a broad range of legislative and other measures that are calculated to prevent the
participation of a racial group 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 by
denying them basic human rights and freedoms. A wide range of Israeli policies and prevalent
practices in the OPT can amount to a finding of persecution under the Article, including the
discriminatory deployment of draconian military orders that severely restrict Palestinians’
exercise of their basic rights to free expression and free association and assembly, targeting
Palestinian individuals and civil society organizations with criminalization and suppression,
denying Palestinian detainees basic fair trial and due process rights, and failing to protect
Palestinian residents from ideologically-motivated acts of violence and intimidation by Jewish
Israeli settlers. Additionally, Israel’s harassment, arrest, and detention of Palestinian Legislative
Council members—eight of whom were currently detained as of February 2022—appear
calculated to prevent the full participation of Palestinians in the political life of their country, by
forcing them to languish in Israeli prisons, potentially indefinitely, based on “secret evidence,” in
violation of Article 2(c) of the Apartheid Convention.
61. Article 2(f) of the Apartheid Convention concerns the persecution of organizations and
persons by depriving them of their fundamental rights and freedoms, specifically because they
oppose apartheid. Since 1967, Israel has weaponized military orders and the military courts to
38 Military Order no. 1651 provides that the Israeli military commander may authorize the “administrative”
detention, for up to six months, of a Palestinian individual not charged with a crime if the commander has
reasonable grounds to believe that the individual “must (?) be held in detention for reasons to do with regional
security or public security.” This detention is not subject to a warrant, and charges do not need to be disclosed to the
detainee. Military Order no. 1651 further grants the Israeli military broad powers to withhold a detainee’s right to
communicate with a lawyer and to be brought before a judge in a timely manner.
39B’Tselem, “Settler Violence=State Violence,” 25 November 2021, https://www.btselem.org/settler_violence; Yesh
Din, “Position Paper: Settler Crime and Violence Inside Palestinian Communities, 2017-2020,” 27 May 2021,
16
persecute those who oppose its prevalent discriminatory policies and actions in the OPT,
including through criminalization of peaceful expression and assembly that may “incite” against
the occupation. This persecution was demonstrated most recently in 2021 and in Jenin in 2023 by
resorting to excessive use of force with the mass criminalization and targeting of Palestinian civil
society organizations, community activists and human rights defenders.
62. Since 1967, the Israeli Supreme Court, sitting as the High Court of Justice, has exercised
jurisdiction to hear petitions concerning the activities of the Israeli military in the OPT.
However, it has maintained discretion to accept or reject any petition, with a limited standard of
review in comparison to the “regular” appeal process, thus preventing many petitions from
reaching the Court. Notably, the Israeli Supreme Court has accepted that “Israeli nationals who
reside in territory under the state’s control are subject to different arrangements from those that
apply to the Palestinians,” without questioning the implications of the existence of different legal
arrangement governing both groups and the nature of the regime in the OPT.40
63. Apartheid involves commission of specified inhuman acts with an intent to dominate.
The totality of Israeli actions and policies in the OPT manifests an intent to establish and
maintain Jewish domination and suppression of Palestinians. Since 1967, Israel has put in place
institutions, legal instruments, and mechanisms that systematically discriminate against
Palestinians in the OPT, enshrine Jewish supremacy, suppress Palestinians’ exercise of their civil
and political rights, and deny Palestinians’ basic human rights and freedoms.
64. The explicit objective of ensuring Jewish character and domination across Israel and the
OPT was affirmed in the 2018 Jewish Nation-State Law, which enshrines the character of Israel
as a “nation-state of the Jewish people” and constitutionally entrenches the privileging of one
group of people over another. The law also declares “the development of Jewish settlement” as a
“national value,” which the state would act to encourage and promote, without limiting
settlement to the boundaries of the State of Israel.41 In 2020, the former prime minister of Israel
declared a plan to formally annex parts of the OPT, bringing them under Israeli sovereignty,
while specifically excluding Palestinians 42 who have been openly described by Israeli
policymakers as a demographic threat to the existence of Israel as a Jewish state. That there is
“no end in sight” to Israel’s prolonged occupation of the OPT, in conjunction with its
encouragement of settlement building, further compels the conclusion that Israel’s actions are
done with an intent to establish and maintain Jewish dominance over Palestinians in the OPT.
40 Id., p. 512 (noting that in the Hebron Municipality case (2019), the Israeli Supreme Court described the existence
of a “different legal system that applies to Israeli nationals who reside in the OPT as a preordained situation, without
so much as querying whether this was lawful.”
41See Basic Law: Israel – the Nation-State of the Jewish People, 2018,
42 Explainer: Israel, Annexation, and the Occupied Palestinian authorities,” BBC News, 25 June 2020,
https://www.bbc.com/news/worldmiddle-east-52756427.
17
E. Other Violations of International Humanitarian Law and International
Human Rights Law
65. The relationship between international humanitarian law and international human rights
law is not one of exclusion but of coordination. Where international human rights law deals in
general terms with an issue (e.g. “arbitrary” deprivation of life) which is regulated in more detail
and specificity by international humanitarian law, the latter provides the content to the applicable
law, i.e. it determines the scope of the legal standard. Where on the other hand international
human rights law prohibits certain treatment entirely (e.g. torture) then that treatment remains
internationally unlawful at all times and places including during armed conflict or occupation.
Accordingly, the applicable law in the OPT, including East Jerusalem, is both the international
humanitarian law and the international human rights law.
66. In order to facilitate its actions in the occupied territory, Israel has used a variety of legal
tools. Applying Israeli domestic law to East Jerusalem has enabled Israel to enforce its land laws
on the occupied territories, including those passed after the 1967 War. These legislations include,
inter alia, the Basic Law:43 Jerusalem, Capital of Israel (adopted in 1980 and amended in 2000)
declaring, inter alia, that “Jerusalem, complete and united, is the capital of Israel”; and the Legal
and Administrative Matters Law (enacted in 1970) which exclusively allows Jews to pursue
claims to land and property allegedly owned by Jews in East Jerusalem before the establishment
of the “State of” Israel in 1948.
67. By continuing with the actions described above, Israel has breached its obligations not to
alter the original legislation in the occupied territory unless the changes are necessary for the
preservation of public life and order and for the benefit of protected persons. In addition, the
legislation introduced by the Israeli authorities raises great concerns in relation to its
compatibility with international law standards. As these above-mentioned legislations and
actions arguably facilitate, inter alia, transfer of Israeli population to the annexed territory,
forcible transfer of protected persons, confiscation and demolition of property in contradiction
with the following rules and principles of the international humanitarian law:
i. Prohibition on forcible transfer
68. Article 49 (1) of the Fourth Geneva Convention stipulates that “Individual or mass
forcible transfers, as well as deportations of protected persons from occupied territory to the
territoryof the Occupying Power or to that of any other country, occupied or not, are prohibited,
regardless of their motive”.
69. Forcible transfer entails consequences including the abandonment of one’s home and
possessions and potentially losing one’s rights in the property. Whereas deportation requires the
displacement of persons across a national border, forcible transfer may take place within national
43Israel has no constitution but a series of Basic Laws having superiority on all other legislations.
18
boundaries or the occupied territory. The seriousness of this act is emphasized by the inclusion
and categorization of forcible transfer as a grave breach of the Fourth Geneva Convention.
70. The forcible nature of deportation or eviction is not limited to physical force, but may
encompass threat of force or coercion. The act of deportation or forcible transfer is prohibited,
irrespective of the motive and the purpose of such displacement. Even the fact that an eviction or
deportation order is issued pursuant to judicial proceedings is irrelevant to this rule.
ii. Prohibition on transfer of occupying power’s population into occupied
territory
71. Article 49 (6) of the Fourth Geneva Convention stipulates that the transfer of civilians
from the occupying power into the territory it occupies is strictly forbidden. It also constitutes a
grave breach of the Convention (Article 147 of the Convention).
iii. Property Rights under Occupation Law
72. International humanitarian law has long recognized that property rights should be
protected from most types of state intervention. The foundation of this notion is found in Article
46 of the Hague Regulations of 1907 which lays down the general obligation of respecting
private property in occupied territory. The Article mandates that private property must be
respected and “cannot be confiscated”.Thus, it forbids confiscation, namely, the permanent
taking of private property with the transfer of title to it. With regard to public property, Article
55 of the Hague Regulations states that: “The occupying State shall be regarded only as
administrator and usufructuary of public buildings, real estate, forests, and agricultural estates
belonging to the hostile State, and situated in the occupied country. It must safeguard the capital
of these properties, and administer them in accordance with the rules of usufruct”.
73. The Fourth Geneva Convention added some supplemental provisions in regard to
property rights. One of them is Article 53, which provides that “Any destruction by the
Occupying Power of real or personal property belonging individually or collectively to private
persons, or to the State, or to other public authorities, or to social or cooperative organizations, is
prohibited, except where such destruction is rendered absolutely necessary by military
operations”. In addition, Article 147 provides that the “extensive destruction and appropriation of
property, not justified by military necessity and carried out unlawfully and wantonly” constitutes
a grave breach of the Convention.
iv. International Human Rights Law
74. The important aspects of international human rights law have entered into customary
international law. Therefore, it is sufficient here to rely on the universal human rights treaties
which Israel itself has accepted by becoming a party to them.
19
75. Israel is a party, in particular, to the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Cultural and Social Rights (ICESCR) –
both of which it ratified on 3 October 1991. In particular Article 2(1) of ICCPR provides that
each State Party “undertakes to respect and to ensure to al1 individuals within its territory and
subject to its jurisdiction” the rights recognized in the Covenant. The term “within its territory
and subject to its jurisdiction” in Article 2(1) is disjunctive; States Parties are bound to apply the
Covenant to territories over which they exercise jurisdiction, including as a belligerent occupant.
76. Thus, the United Nations Human Rights Committee is correct in concluding that ICCPR
applies to the benefit of the populations in the OPT, and Israel is in violation of them.44
77. Israel has offered the Palestinian residents of East Jerusalem the opportunity to better
their situation and ensure their right to live in the city, but conditioned it by applying for Israeli
citizenship – a procedure that requires swearing allegiance to the State of Israel, which, under
international law, is the occupying power of East Jerusalem. In this regard it is worth mentioning
that Article 45 of the Hague Regulations which stipulates that “it is forbidden to compel
residents of occupied territory to swear allegiance to the hostile power”. Conditioning
fundamental rights – such as the right not to be transferred or deported from the occupied
territory – on swearing loyalty to the occupying power, therefore contravenes the provisions of
the Article.
78. According to the Universal Declaration of Human Right of 1948, East Jerusalem
residents should be entitled, like any other person, to leave their home and to return to it, without
thereby being at risk that their travels abroad or their departure to other areas of Palestine, and
even their acquisition of status in another country, will lead to the deprivation of their rights to
return to their homeland. The right of persons to leave and return to their country is secured in
international human rights law.
79. Article 13(2) of the Universal Declaration of Human Rights (1948) states: “Everyone has
the right to leave any country, including his own, and to return to his country”. Article 12(4) of
ICCPR continues and states the following: “No one shall be arbitrarily deprived of the right to
enter his own country”45. It should be noted, in this regard, that the United Nations Human
Rights Committee,46 the body charged with monitoring the implementation of the ICCPR, held
that the right to return to one’s country as per Article 12(4) of the Covenant is not available
44 Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High
Commissioner and the Secretary-General, Fifty-third session 19 June–14 July 2023
45International Covenant on Civil and Political Rights, Article 12(4). This principle is enshrined in other human
rights conventions. See: Article 10(2) of the Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N.
GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force 2 September 1990; Article 5(d)(ii) of
the International Convention on the Elimination of All Forms of Racial Discrimination, G.A. res. 2106 (XX),
Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc A/6014 (1966), 660 U.N.T.S. 195, entered into force 4
January 1969.
46The Human Rights Committee's General Comment 27, CCPR/C/21/Rev.1/Add.9 (1999), par. 20.
20
exclusively to those who are citizens of that country. It most certainly also applies, so the
Committee held, to those who, because of their special ties to that country, cannot be considered
a mere “alien”. As an example, the Committee points out that this right shall also be available to
residents of territories whose rule has been transferred to a foreign country of which they are not
citizens.
80. Israel maintains that the applicable law in the OPT is international humanitarian law
rather than international human rights law. In its view, there is a well-established distinction
between the two areas of international law, and in times of armed conflict, the applicable law is
international humanitarian law. ICCPR and ICESCR are claimed by Israel to be not applicable
during armed conflict, but only during peacetime.
81. Many international human rights treaties explicitly state that they apply in both times of
war and peace. For example, Article 2(2) of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment of 1984 provides:
“No exceptional circumstances whatsoever, whether a state of war or a threat of
war, interna1 political instability or any other public emergency, may be invoked
as a justification of torture.”
82. The Genocide Convention likewise provides in Article 1:
“The Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they undertake
to prevent and to punish.”
83. Many international and regional human rights conventions, including the ICCPR, contain
provisions permitting States to derogate from certain provisions of the convention during war:
see especially Article 4of the ICCPR. The explicit exception for derogation during war clearly
implies that absent derogation, the human rights convention will apply fully during war.
Moreover, it sets a limit to the kinds of derogation that will be acceptable even in time of war or
national emergency, and it confers a special status upon non-derogable rights-many of which, as
we have seen, are violated by Israel’s settlement practices and changes in the demographic
character of the East Jerusalem and the OPT.
84. As the Court pointed out in the Nuclear Weapons Advisory Opinion, there is a conceptual
distinction between the body of international law comprising international humanitarian law and
that of international human rights law. At the same time the Court affirmed the continued
application of international human rights law to territories affected by armed conflict, subject to
the application of international humanitarian law as a lexspecialis. The Court was presented with
the argument that the ICCPR applied only to the protection of human rights in peacetime. The
Courtsaid:
21
“the protection of the International Covenant on Civil and Political Rights does not
cease in time of war, except by operation of Article 4 of the Covenant whereby
certain provisions may be derogated from in a time of national emergency. Respect
for the right to life is not, however, such a provision. In principle the right not
arbitrarily to be deprived of one's life applies also in hostilities.”
IV. Legal Consequences of a Finding of Violations of International Law
85. The UNGA’s request to the ICJ does not merely require the Court to examine whether
certain practices and policies constitute violations of international law, but specifically asks the
Court to pronounce on the legal consequences of any violations found, as well as on the legal
status of the occupation. In considering the legal consequences of any violations found, the Court
will also address the consequences for (i) Israel (whose conduct is at issue); (ii) other States; and
(iii) the UN.
A. Legal consequences of those violations for Israel
86. As analysed and submitted in preceding paragraphs, Israel’s practice regarding use of
force, denial of the right to self-determination, its prolonged occupation, discriminatory
legislation and settlements to change the demography of OPT are contrary to the Geneva
Conventions, laws of occupation, and peremptory and jus cogens norms of international law.
87. Israeli actions are in direct violation of Articles 1 and 40 of the Draft Articles on the
Responsibility of States for Internationally Wrongful Acts 47 . This entails,Art. 1: “Every
internationally wrongful act of a State entails the international responsibility of that State.” And
Art 40:
“This chapter applies to the international responsibility which is entailed by a
serious breach by a State of an obligation arising under a peremptory norm of
general international law.
2. A breach of such an obligation is serious if it involves a gross or systematic
failure by the responsible State to fulfil the obligation.”
88. Article 40 serves to define the scope of the breaches covered by the chapter. It establishes
two criteria in order to distinguish “serious breaches of obligations under peremptory norms of
general international law” from other types of breaches. The first relates to the character of the
obligation breached, which must derive from a peremptory norm of general international law, In
accordance with article 53 of the 1969 Vienna Convention, a peremptory norm of general
international law is one which is: accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and which can be modified
47Draft articles on Responsibility of States for Internationally wrongful Acts, with commentaries, 2001, Report of
the International Law Commission on the work of its fifty-third session.
22
only by a subsequent norm of general international law having the same character. The second
qualifies the intensity of the breach, which must have been serious in nature, systematic and
gross. To be regarded as systematic, a violation would have to be carried out in an organized and
deliberate way. In contrast, the term “gross” refers to the intensity of the violation or its effects;
it denotes violations of a flagrant nature, amounting to a direct and outright assault on the values
protected by the rule. The terms are not of course mutually exclusive; serious breaches will
usually be both systematic and gross. As we have mentioned earlier Israel has seriously breached
its international obligations.
89. As per Conclusion no. 23 of the Draft Conclusions on Identification and legal
consequences of peremptory norms of General International Law48 , the principle of selfdetermination
and the basic rules of international humanitarian law are part of non-exhaustive
list of jus cogens norms. According to the ICJ, obligations erga omnes “derive, for example, in
contemporary international law, from the outlawing of acts of aggression, and of genocide, as
also from the principles and rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination.49”
90. The core legal consequences of an internationally wrongful act set out in Part Two of the
Draft Articles on the Responsibility of the States for Internationally Wrongful Act, are the
obligations of the responsible “State” i.e. Israel, to cease the wrongful conduct (Art. 30) and to
make full reparation for the injury caused by the internationally wrongful act (Art. 31). Article
34 describes the forms of reparation in the form of restitution (Art.35), compensation (Art.36)
and satisfaction (Art. 37).50
91. Under the law of State responsibility for internationally wrongful acts, reparation
constitutes, in case of injury, the classical legal consequence of responsibility. As stated by the
Permanent Court of International Justice, reparation “must, so far as possible, wipe out all the
consequences of the illegal act and re-establish the situation which would, in all probability, have
existed if that act had not been committed”51. As described above, reparation may take various
forms, including restitution (so-called restitutio in integrum) and compensation. Restitution is a
form of reparation for injury which is aimed at the reestablishment of the situation which existed
before the breach, by reverting to the status quo ante. Restitution may take the form of material
restoration or return of territory, persons or property, or the reversal of some juridical act, or
some combination of them. Examples of material restitution include the release of detained
48Draft Conclusions on Identification and legal consequences of peremptory norms of General International Law
(jus cogens), with commentaries, 2022, adopted by International Law Commission at its 73rd session, and submitted
to the General Assembly.
49Barcelona Traction, at p. 32, para. 34. See also East Timor; Legality of the Threat or Use of Nuclear Weapons;
and Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections(Bosnia and Herzegovina v. Serbia and Montenegro).
50Draft articles on Responsibility of States for Internationally wrongful Acts, with commentaries, 2001, Report of
the International Law Commission on the work of its fifty-third session
51Factory at Chorzbw, Merits, 1928, P.C. I.J., Series A, No. 1 7, p. 47.
23
individuals, the handing over to a State of an individual arrested in its territory, and the
restitution of ships or other types of property, 52 including documents, works of art, share
certificates, etc. The term “juridical restitution” is sometimes used where restitution requires or
involves the modification of a legal situation either within the legal system of the responsible
State or in its legal relations with the injured State. Such cases include the revocation, annulment
or amendment of a constitutional or legislative provision enacted in violation of a rule of
international law,53 the rescinding or reconsideration of an administrative or judicial measure
unlawfully adopted in respect of the person or property of a foreigner or a requirement that steps
be taken (to the extent allowed by international law) for the termination of a treaty54. In the
present case, both material and juridical restitution are involved.
92. This principle has been affirmed in the Court’s jurisprudence.55 Thus, Israel is under an
obligation to make reparation for all injury caused to Palestine and the Palestinian people by the
annulment of legislative acts, or decrees, or administrative acts or orders, which are contrary to
the principles of international law outlined in the previous chapters of this Written Statement.
93. The Court in the Wall case stated that:
“The Court finds further that Israel has the obligation to make reparation for the
damage caused to all the natural or legal persons concerned. The Court recalls the
established jurisprudence that ‘The essential principle contained in the actual
notion of an illegal act . . . is that reparation must, as far as possible, wipe out all
the consequences of the illegal act and re-establish the situation which would, in
all probability, have existed if that act had not been committed.’ Israel is
accordingly under an obligation to return the land, orchards, olive groves and
other immovable property seized from any natural or legal person for purposes of
construction of the wall in the Occupied Palestinian Territory.”
94. In the Chagos case, the Court reiterated the same principles by stating that:
“The Court having found that the decolonization of Mauritius was not conducted
in a manner consistent with the right of peoples to self-determination, it follows
that the United Kingdom’s continued administration of the Chagos Archipelago
52 For example, Temple of Preah Vihear, Merits, Judgment, I.C.J. Reports 1962, p. 6, at pp. 36–37, where ICJ
decided in favour of a Cambodian claim which included restitution of certain objects removed from the area and the
temple by Thai authorities. See also the Hôtel Métropole case, UNRIAA, vol. XIII (Sales No. 64.V.3), p. 219
(1950); the Ottoz case, ibid., p. 240 (1950); and the Hénon case, ibid., p. 248 (1951).
53For cases where the existence of a law itself amounts to a breach of an international obligation, see paragraph (12)
of the commentary to article 12 of State Responsibility. Report of the ILC on the work of its fifty-third session.
54 In the Bryan-Chamorro Treaty case (Costa Rica v. Nicaragua), the Central American Court of Justice decided that
“the Government of Nicaragua, by availing itself of measures possible under the authority of international law, is
under the obligation to re-establish and maintain the legal status that existed prior to the Bryan-Chamorro Treaty
between the litigant republics in so far as relates to matters considered in this action” (Anales de la Corte de Justicia
Centroamericana (San José, Costa Rica), vol. VI, Nos. 16–18 (December 1916–May 1917), p. 7); and AJIL, vol. 11,
No. 3 (1917), p. 674, at p. 696; see also page 683
55 See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 149 sub (13) and (14).
24
constitutes a wrongful act entailing the international responsibility of that State
…….It is an unlawful act of a continuing character which arose as a result of the
separation of the Chagos Archipelago from Mauritius. Accordingly, the United
Kingdom is under an obligation to bring an end to its administration of the
Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to
complete the decolonization of its territory in a manner consistent with the right
of peoples to self determination.”
95. As Israel has violated peremptory norms of international law, it is bound to cease its
wrongful conduct, should make reparation for its internationally wrongful conduct, compensate
the Palestinian people for the damage caused to them, and satisfy the Palestinian people by
acknowledging the breach, and furnishing an expression of regret, a formal apology or another
appropriate modality.
B. Legal Consequences for Other States
96. All States are bound by the principles enumerated under the following paras and the prior
ICJ ruling to cease to assist and aid Israel in its continued violations of the jus cogens norms of
international law related to the right to self-determination, use of force, and violations of the
basic principles of International humanitarian law, along with the continued anti racial policies in
the OPT. All the States are under the obligation not to recognize the situation created by Israel in
OPT by its serious and consistent breach of the jus cogens norms of the international law, and
must cooperate with each other to bring an end to such unlawful and systematic violations by
Israel.
97. Where the internationally wrongful act constitutes a serious breach by the State of an
obligation arising under a peremptory norm of general international law, the breach may entail
further consequences both for the responsible State and for other States. In particular, all States
in such cases have obligations to cooperate to bring the breach to an end, not to recognize as
lawful the situation created by the breach, and not to render aid or assistance to the responsible
State in maintaining the situation so created (Arts. 16, 40 and 41) of the Draft Articles on the
Responsibility of the States for Internationally Wrongful Acts.56As per Article 16:
“A State which aids or assists another State in the commission of an
internationally wrongful act by the latter is internationally responsible for doing
so if:
(a) that State does so with knowledge of the circumstances of the
internationally wrongful act; and
(b) the act would be internationally wrongful if committed by that State.”
56 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, Report of
the International Law Commission on the work of its fifty-third session
25
98. Article 16 limits the scope of responsibility for aid or assistance in three ways. First, the
relevant State organ or agency providing aid or assistance must be aware of the circumstances
making the conduct of the assisted State internationally wrongful; secondly, the aid or assistance
must be given with a view to facilitating the commission of that act, and must actually do so; and
thirdly, the completed act must be such that it would have been wrongful had it been committed
by the assisting State itself.
99. The obligation not to provide aid or assistance to facilitate the commission of an
internationally wrongful act by another State is not limited to the prohibition on the use of force
or violation of other peremptory norms. For instance, a State may incur responsibility if it assists
another State to circumvent sanctions imposed by the Security Council or provides material aid
to a State that uses the aid to commit human rights violations.
100. As per Article 41:
“1.States shall cooperate to bring to an end through lawful means any
seriousbreach 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 inmaintainingthatsituation.
3.This article is without prejudice to the other consequences referred to in thisPart
and to such further consequences that a breach to which this chapter applies may
entail under international law.”
101. Article 41 sets out the particular consequences of breaches of the kind and gravity
referred to in article 40. It consists of three paragraphs. The first two prescribe special legal
obligations of States faced with the commission of “serious breaches” in the sense of article 40,
the third takes the form of a saving clause. Pursuant to paragraph 1 of Article 41, States are under
a positive duty to cooperate in order to bring to an end serious breach in the sense of article 40.
Cooperation could be organized in the framework of a competent international organization, in
particular the UN. However, paragraph 1 also envisages the possibility of non-institutionalized
cooperation.
102. The second obligation contained in paragraph 2 prohibits States from rendering aid or
assistance in maintaining the situation created by a serious breach in the sense of Article 40, and
no State to recognize the situation created by the serious breach as lawful. This obligation applies
to all States, including the responsible State. This goes beyond the provisions dealing with aid or
assistance in the commission of an internationally wrongful act, which are covered by Article 16.
It deals with conduct “after the fact” which assists the responsible State in maintaining a
situation “opposable to all States in the sense of barring erga omnes the legality of a situation
which is maintained in violation of international law”. It extends beyond the commission of the
serious breach itself to the maintenance of the situation created by that breach, and it applies
whether or not the breach itself is a continuing one. As to the elements of “aid or assistance”,
26
Article 41 is to be read in connection with Article 16. In particular, the concept of aid or
assistance in Article 16 presupposes that the State has “knowledge of the circumstances of the
internationally wrongful act”. There is no need to mention such a requirement in Article 41,
paragraph 2, as it is hardly conceivable that a State would not have notice of the commission of a
serious breach by another State. In some respects, the prohibition contained in paragraph 2 may
be seen as a logical extension of the duty of non-recognition.
103. In as similar fashion, draft conclusion 19 of the Draft Conclusions on Identification and
legal consequences of peremptory norms of General International Law57concerns particular
consequences of serious breaches of obligations arising under peremptory norms of general
international law (jus cogens). It is based on Article 41 of the articles on responsibility of States
for internationally wrongful acts. It provides that States shall cooperate to bring to an end serious
breaches of obligations arising under peremptory norms of general international law (jus
cogens). The obligation to “cooperate to bring to an end through lawful means” serious breaches
of peremptory norms of general international law (jus cogens) builds on the general obligation to
cooperate under international Law.
104. Conclusion 19, Particular consequences of serious breaches of peremptory norms of
general international law (jus cogens) states that:
“1. States shall cooperate to bring to an end through lawful means any serious
breach by a State of an obligation arising under a peremptory norm of general
international law (jus cogens).
2. No State shall recognize as lawful a situation created by a serious breach by a
State of an obligation arising under a peremptory norm of general international
law (jus cogens), nor render aid or assistance in maintaining that situation.
3. A breach of an obligation arising under a peremptory norm of general
international law (jus cogens) is serious if it involves a gross or systematic failure
by the responsible State to fulfil that obligation.
4. This draft conclusion is without prejudice to the other consequences that any
breach by a State of an obligation arising under a peremptory norm of general
international law (jus cogens) may entail under international law.”
105. The relationship between jus cogens norms and the erga omnes obligations are reflected
in the Draft conclusion 17 58 which addresses obligations erga omnes. It consists of two
paragraphs. Paragraph 1 states that peremptory norms of general international law (jus cogens)
57Draft Conclusions on Identification and legal consequences of peremptory norms of General International
Law(jus cogens), with commentaries, 2022, adopted by International Law commission in its 73rd session, and
submitted to the General Assembly.
58Draft Conclusions on Identification and legal consequences of peremptory norms of General International
Law(jus cogens), with commentaries, 2022, adopted by International Law commission in its 73 session, 2022, and
submitted to General Assembly.
27
give rise to obligations owed to the international community as a whole (obligations erga
omnes). The relationship between peremptory norms of general international law (jus cogens)
and obligations erga omnes has been recognized in the practice of States and by the Court. In the
East Timor case, the Court said that “Portugal’s assertion that the right of peoples to selfdetermination,
as it evolved from the Charter and from United Nations practice, has an erga
omnes character, is irreproachable”. In the Wall case the Court held that: “the obligations
violated by Israel include certain obligations erga omnes. As the Court indicated in the Barcelona
Traction case, such obligations are by their very nature the concern of all States” and, “In view
of the importance of the rights involved, all States can be held to have a legal interest in their
protection.”
106. An example of the practice of non-recognition of acts in breach of peremptory norms and
erga omnes obligations is provided by the reaction of the Security Council to the Iraqi invasion
of Kuwait in 1990. Following the Iraqi declaration of a “comprehensive and eternal merger” with
Kuwait, the Security Council, in resolution 662 (1990) of 9 August 1990, decided that the
annexation had “no legal validity, and is considered null and void”, and called upon all States,
international organizations and specialized agencies not to recognize that annexation and to
refrain from any action or dealing that might be interpreted as a recognition of it, whether direct
or indirect.
107. As regards the denial by a State of the right to self-determination of peoples, the advisory
opinion of Court in the Namibia case is similarly clear in calling for a non-recognition of the
situation. 59The same obligations are reflected in the resolutions of the Security Council and
General Assembly concerning the situation in Rhodesia60 and the Bantustans in South Africa.
61These examples reflect the principle that where a serious breach in the sense of Article 40 has
resulted in a situation that might otherwise call for recognition, this has nonetheless to be
withheld.
108. The violations of the jus cogens norms creates erga omnes partes obligations on all States
in the “sense that each State party has an interest in compliance with them in any given case”62,
59Namibia case, where the Court held that “the termination of the Mandate and the declaration of the illegality of
South Africa’s presence in Namibia 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” (p. 56, para. 126).
60 Cf. Security Council resolution 216 (1965) of 12 November 1965.
61 See, e.g., UNGA resolution 31/6 A of 26 October 1976, endorsed by the Security Council in its resolution 402
(1976) of 22 December 1976; UNGA resolutions 32/105N of 14 December 1977 and 34/93G of 12 December 1979;
see also the statements of 21 September 1979 and 15 December 1981 issued by the respective Presidents of the
Security Council in reaction to the “creation” of Venda and Ciskei (S/13549 and S/14794).
62In its Judgment in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), the Court observed that the relevant provisions in the Convention against Torture were “similar” to those
in the Genocide Convention. The Court held that these provisions generated “obligations [that] may be defined as
“obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any
given case” (Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68). It follows that any State party to the Genocide
Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view
28
which implies not only the condemnation, non-recognition and non-assistance of the Israeli
actions in OPT, but to also condemn and deny recognition of the duplication of the Israeli
models in toto, in any other similar factual and legal situation.
109. It is an established principle that a serious breach in the sense of Article 40 and 41of the
Draft Articles on the Responsibility of the States for Internationally Wrongful Act warrants a
denial of recognition. Collective non-recognition would seem to be a prerequisite for any
concerted community response against such breaches and marks the minimum necessary
response by States to the serious breaches referred to in the said Article 40 and 41. As mentioned
above, the breaches of jus cogens norms also create obligations extended erga omnes partes on
all States to not recognize similar breaches and wrongfulness in other similar factual and legal
situations.
110. The Friendly Relations Declaration affirms this principle by stating unequivocally that
States shall not recognize as legal any acquisition of territory brought about by the use of force.
C. Legal Consequences for the United Nations
111. The obligation of States to act collectively to bring to an end serious breaches of
peremptory norms of general international law (jus cogens) has particular consequences for
cooperation within the organs of the UN and other international organizations. It means that, in
the face of serious breaches of peremptory norms of general international law (jus cogens),
international organizations should act, within their respective mandates and when permitted to do
so under international law, to bring to an end such breaches. Thus, where an international
organization has the discretion to act, the obligation to cooperate imposes a duty on the members
of that international organization to act with a view to the organization exercising that discretion
in a manner to bring to an end the breach of a peremptory norm of general international law (jus
cogens).
112. Depending on the type of breach and the type of the peremptory norm in question, the
collective system of the UN lays down the framework for cooperative action. It is for this reason
that, in light of the determination by the Court of a breach of “self-determination” and “basic
principles of humanitarian law”, the Court stated 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”.63 Similarly, in the Chagos case, the Court referred to the
obligation of “all Member States” to “co-operate with the United Nations” to end the breach in
question. 64 Other international organizations may also adopt measures, consistent with
international law, to bring to an end serious breaches of peremptory norms of general
international law (jus cogens) if their mandates permit them to do so.
to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an
end.
63Wall Advisory Opinion(para. 160).
64Chagos Advisory Opinion (pp. 139–140, para. 182).
29
113. There are numerous examples of resolutions of organs of international organizations, in
particular the UN, that illustrate the duty to cooperate to bring to an end serious breaches of
obligations that are widely recognized as arising from peremptory norms of general international
law (jus cogens). These include resolutions condemning breaches of such obligations 65 ,
including the right to self-determination, calling for an end to violation of such obligations,66 and
resolutions establishing accountability mechanisms to address such breaches.67
V. Final Submissions
114. For the reasons set out in this Written Statement, Pakistan respectfully requests the Court
to respond to the request of the UNGA and to advise that:
1) The Court is competent to give the advisory opinion requested by the General
Assembly in its Resolution 77/247 of 30 December 2022, and there are no
compelling reasons preventing the Court from giving the requested opinion.
2) Israel’s obligations in the OPT, including in and around East Jerusalem, are those
of an Occupying Power, governed by the provisions of international humanitarian
law, including in particular the Hague Regulations, the Fourth Geneva
Convention and customary international humanitarian law; and by the provisions
of international human rights law, including in particular ICCPR, ICESCR,
ICERD, Apartheid Convention, Convention on the Rights of the Child,
Convention on the Elimination of All Forms of Discrimination against Women;
and customary international human rights law.
65See UNGA resolution 2022 (XX) of 5 November 1965, para. 4 (“Condemns the policies of racial discrimination
and segregation practiced in Southern Rhodesia, which constitute a crime against humanity”); General Assembly
resolution ES-8/2 of 14 September 1981, para. 4 (“Strongly condemns South Africa for its continued illegal
occupation of Namibia”); General Assembly resolution 36/27 of 13 November 1981, concerning Israeli aggression
against Iraqi nuclear installations, para. 1 (“Strongly condemns Israel for its premeditated and unprecedented act of
aggression in violation of the Charter of the United Nations and the norms of international conduct”); UNGA
resolution 46/47 of 9 December 1991, para. 5 (“Condemns the continued and persistent violation by Israel of the
Geneva Convention relative to the Protection of Civilian Persons in Time of War … and condemns in particular
those violations which the Convention designates as ‘grave breaches’ thereof”);
66UNGA resolution 36/27 of 13 November 1981, para. 3 (“Reiterates its call to all States to cease forthwith any
provision to Israel of arms and related material of all types which enable it to commit acts of aggression against
other States”); Security Council resolution 2334 (2016) of 23 December 2016, para. 2 (“Reiterates its demand that
Israel immediately and completely cease all settlement activities in the Occupied Palestinian Territory, including
East Jerusalem, and that it fully respect all of its legal obligations in this regard”);
67 See UNGA resolution 2184 (XXI) of 12 December 1966, para. 5 (“Calls upon Portugal to apply immediately the
principle of self-determination to the peoples of the Territories under its administration”), para. 6 (“Appeals to all
States to give the peoples of the Territories under Portuguese domination the moral and material support necessary
for the restoration of their inalienable rights and to prevent their nationals from cooperating with the Portuguese
authorities, especially in regard to investment in the Territories”); UNGA resolution 36/27 of 13 November 1981,
para. 3 (“Reiterates its call to all States to cease forthwith any provision to Israel of arms and related material of all
types which enable it to commit acts of aggression against other States”);
30
3) The prolonged occupation by a State of foreign territory and peoples is by that
very fact a violation of the right to self-determination.
4) Israel use of force to prolong the occupation of OPT is illegal, amounting to
annexation, and is contrary to the principles of international law.
5) Israel’s practices and procedures of deployment of a dual legal system, forced
evictions, demolitions in the OPT, and the resulting systematic discrimination
against Palestinians and subordination of Palestinians’ civil and political rights to
the rights of Jewish Israeli citizens settled in the OPT, including East Jerusalem,
amount to a breach of the prohibition of apartheid under international law.
6) As consequences of these grave breaches of international law, Israel is bound to:
(a) Immediately and completely cease and reverse all settlements, and related
activities in the OPT, including East Jerusalem, in accordance with relevant
UN resolutions,
(b) Rescind all policies and practices contributing to a coercive environment
and/or increasing the risk of forcible transfer of Palestinians;
(c) Review planning laws and policies to ensure that they are compliant with
the obligations of Israel under international human rights law and
international humanitarian law;
(d) Refrain from implementing evictions and demolition orders on the basis of
discriminatory and unlawful planning policies and practices that may lead to
the forcible transfer of Palestinians, affecting women and the vulnerable
disproportionally;
(e) Take all steps necessary to protect the Palestinian population and their
property from settler violence and ensure that all incidents of violence by
settlers and Israeli security forces against Palestinians and damage to their
property are promptly, effectively, thoroughly and transparently
investigated, that perpetrators are prosecuted and, if convicted, punished
with appropriate sanctions, and that victims are provided with effective
remedies, including adequate compensation, in accordance with
international standards;
7) In terms of legal consequences that arise for other States from these grave
breaches of international law, the Court may declare that:
31
(a) The breaches of the peremptory norms create erga omnes obligation to
cooperate, with each other and with the UN and other competent
international bodies, with a view to putting an end to Israel's violations of
jus cogens norms of the right to self-determination and its illegal occupation
through force and acts of aggression.
(b) That UN to establish a compensation tribunal with the aim to address the
damages and losses of the Palestinian people suffered due to the prolonged
illegal occupation by Israel of OPT.
(Ambassador Suljuk Mustansar Tarar)
Ambassador of the
Islamic Republic of Pakistan to the
The Hague, 25 July 2023 Kingdom of The Netherlands