Written comments of Namibia

REPUBLIC OF NAMIBIA
WRITTEN COMMENTS
TOTHE
INTERNATIONAL COURT OF JUSTICE
ON
ADVISORY OPINION ON THE LEGAL CONSEQUENCES ARISING FROM THE
POLICIES AND PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN
TERRITORY, INCLUDING EAST JERUSALEM
SUBMITTED BY THE REPUBLIC OF NAMIBIA
OCTOBER 2023
TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................... 3
II. THE POLITICAL PROCESS SUPPORTING A NEGOTIATED SOLUTION ......... 5
III. ECONOMIC DEALINGS WITH THE OCCUPYING POWER .............................. 12
IV. GENOCIDE ..................................................................................................................... 23
V. THEIUSADBELLUMILLEGALITY OF THE OCCUPATION ............................ 27
2
WRITTEN STATEMENT OF NAMIBIA
*
I. INTRODUCTION
I. These written comments by the Republic of Namibia are filed in accordance with the
Order of the Court of 3 February 2023 in response to the request by the General
Assembly of the United Nations for an Advisory Opinion contained in Resolution
77/247 of 30 December 2022.1 They seek to address to the Court four matters, in
response to the written statements provided by other States parties, and which may
assist the Court in its deliberations related to the request by the General Assembly of
the United Nations for an Advisory Opinion contained in Resolution 77/247 of 30
December 2022. 2
2. These four matters include:
a. The political process supporting a negotiated solution for the Palestine/Israel
conflict;
b. The extent of third State party obligations pertaining to their economic dealings
with the Occupying Power;
c. The current attempt to commit, if not actively commit, genocide in the Occupied
Palestinian Territory (OPT); and
d. The precise relationship of the ius ad bell um to the matters raised by the request
for an advisory opinion.
3. Several written statements3 have argued that the Court should exercise its discretion not
to issue an advisory opinion in light of a political process instigated over 30 years ago
that supports a negotiated solution; or that the Court should respond only to those legal
questions raised by the advisory opinion in as far as its response would be in line with
the outlines of this political process. Namibia does not share this view, and Namibia
does not agree that the outlines of this process would permit Israel's continued
1 UNGA Res 77/247, 30 December 2022, A/Res/77/247.
2 UNGA Res 77/247, 30 December 2022, A/Res/77/247.
3 U.S.; Israel; Fiji; Nauru; Togo; United Kingdom; Russia; Italy; Czech Republic; Hungary; Spain.
3
occupation of the Occupied Palestinian Territory irrespective of its international legal
obligations, up until a negotiated peace.
4. Namibia takes this position because nothing in the Security Council Resolutions argued
to demonstrate political support of the international community to a negotiation process
grants a mandate for Israel to persist in violations of ius cogens. Namibia also takes the
position that the Palestinian Liberation Organisation (PLO) did not consent to any
violations of ius cogens by Israel, including the maintenance of an illegal occupation,
in its agreements with Israel.
5. Several written statements,4 have outlined the obligations of third States with respect to
economic dealings with the Occupying Power should the continued occupation by
lsrael of the Occupied Palestinian Territory be found unlawful by the Court. Namibia
agrees with this view and would like to make several additional observations on the
extent of this obligation.
6. Specifically, Namibia observes that, in order to comply with their customary duty of
non-recognition of Israel's sovereignty over the Occupied Palestinian Territory, third
States must ensure that all their international agreements with Israel unequivocally and
explicitly indicate their non-applicability to the Occupied Palestinian Territory. In order
to ensure their compliance with their customary duty of not aiding and assisting, third
States must ensure the import, marketing and sale of settlement goods and services is
prohibited.
7. Cuba has outlined in its submission that "ln this regard, the Republic of Cuba believes
that, rather than an obvious apartheid situation, pursued as a crime against humanity,
this is an act of low-intensity genocide that is being perpetrated with systematic and
effective cruelty."5 Namibia will address this view in this submission.
8. Several written statements have suggested that the illegality of the occupation per se
may result in the failure to apply the law of occupation to the Occupying Power's
conduct, and have confused the request to determine the legal status under international
4 Including: League of Arab States; Ireland; Syrian Arab Republic; State of Palestine; African Union; Saudi
Arabia.
5 Cuba, Written Statement of July 2023, page 15.
4
law of the prolonged occupation with a request to determine the legal status of the
occupation under international humanitarian law.6 These are misguided suggestions
that Namibia wishes to address.
II. THE POLITICAL PROCESS SUPPORTING A NEGOTIATED SOLUTION
9. Several submissions appear to confuse the international community's support for a
political process for a negotiated solution to Israel's occupation of the West Bank,
including East Jerusalem, and the Gaza Strip (the Occupied Palestinian Territory), with
a blanket approval, acquiescence, or consent by that international community to
violations of peremptory norms by the Occupying Power.
10. In determining the legal nature and consequences of Israel's conduct and its effects
inter alia on the Palestinian people's inalienable right to exercise external selfdetermination
and full independence, and the status of its occupation of the Occupied
Palestinian Territory, the matters of law on which the Court is requested to advise will
involve; the principle of self-determination, grave violations of core principles of
international humanitarian law, the use of force and the principle of non-acquisition of
territory by force, and the prohibition against apartheid, i.e. they involve obligations ius
cogens.7
6 France § 51.: De l'avis de la France, Jes consequences juridiques de ce constat doivent etre appreciees a leur
exacte mesure. Le caractere prolonge d'une occupation, s' il est contraire au fait que celle-ci devrait etre provisoire
par nature, n'a pas pour consequence de rendre celle-ci illicite per se. En effet, ce constat d'illiceite per se pourrait
conduire a soutenir l'inapplicabilite du regime juridique de !'occupation. Cela aboutirait a un resultat,
manifestement absurde ou deraisonnable, qui serait de priver Jes populations civiles de la protection offerte par ce
regime, protection d'autant plus necessaire que ladite occupation dure dans le temps,
U.S. §4.2: The second referred question rests on a faulty premise. It asks the Court to opine on how the policies,
practices and alleged violations referred to in the first question, including Israel's prolonged occupation,
settlement and annexation of occupied territory "affect the legal status of the occupation." The straightforward
answer is the legal status of the occupation under international humanitarian law results from the fact of occupation
alone. The legal status of a belligerent occupation under international humanitarian law does not change if the
occupation is prolonged or if alleged violations of international humanitarian law or other international law have
been committed by the Occupying Power.
7 Report of the International Law Commission, Seventy-first Session (29 April - 7 June and 8 July - 9 August
2019), UN General Assembly, A/74/10, 'Chapter V: Peremptory norms of general international law Ous cogens)'
available at < https://digitallibrary .un.org/record/382735S?ln=en>.
5
11. Namibia submits that a negotiated political solution, cannot be predicated on a mandate
to the Occupying Power to persist in violations of peremptory norms, nor can it require
its persistence in such wrongful conduct.
12. Namibia further submits that there is no legal framework requiring a negotiated
solution. Rather, the international community's support is for a political process that
seeks a negotiated solution, and Israel's consent to such a political process, is generally
considered to be outlined in the following documents: 8
(i) U.N. Doc. S/RES/242 (Nov. 22, 1967)
(ii) U.N. Doc. S/RES/338 (Oct. 22, 1973)
(iii) Exchange of Letters between Yitzhak Rabin, Prime Minister of Israel, and
Yasser Arafat, PLO Chairman, concerning Israel-PLO Recognition (Sept. 9, 1993)
(iv) Declaration of Principles on Interim Self-Government Arrangements,
A/48/486- S/26560 (Sept. 13, 1993); Israeli-Palestinian Interim Agreement on the
West Bank and the Gaza Strip, A/51/889-S/l 997 /357 (Sept. 28, 1995).
The Palestinian Liberation Organisation's (PLO) consent is considered to be derived
from the letters, Declaration of Principles and Interim Agreement outlined under (iii)
and (iv) above.
13. With respect to UN Security Council Resolution 242 and UN Security Council
Resolution 338, Namibia understands that the "withdrawal oflsraeli armed forces from
territories occupied in the recent conflict" was required subsequent to Israel's unlawful
use of force and territorial aggression against its Arab neighbours,9 and was not made
explicitly conditional by the text of those resolutions on any peace agreements
concluded with those neighbours (the supposed "land for peace" formula).
14. In as far as the political process supporting a negotiated peace was established based
on, and in accordance with, UN Security Council resolutions, Namibia submits that the
8 Some have referred to these documents and the support from the international community for negotiations
between the parties as the "framework for negotiations". Namibia does not find this term helpful in establishing
the extent, nature or content of the international community's support for a political process supporting a
negotiated solution; or in establishing the extent, nature or content of the legal obligations incumbent upon the
PLO by virtue of its political support for a peaceful process supporting a negotiated solution.
9 See Namibia's written statement, Paragraph 141-142.
6
Security Council remained bound by ius cogens and the UN Charter in the exercise of
its functions, including its issuance of the abovementioned resolutions. 10 Article 24(2)
of the UN Charter stipulates that "in discharging these duties the Security Council shall
act in accordance with the Purposes and Principles of the United Nations". These
principles include (emphasis added):
a. "To maintain international peace and security, and to that end: to take effective
collective measures ( ... ) for the suppression of acts of aggression or other
breaches of the peace, and to bring about by peaceful means, and in conformity
with the principles of justice and international law, adjustment or settlement
of international disputes or situations which might lead to a breach of the peace
(emphasis added)";
b. "To develop friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples,( ... )";
c. "( ... ) in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or
religion".
15. It must therefore be presumed that the UN Security Council did not intend to ask States,
or non-State actors, to consent to, mandate, or require, Israel's breaches of peremptory
norms through the Council's promotion of a peaceful resolution. The Security Council
can therefore not have authorized a framework through Resolution 242 and Resolution
338 that required, or consented to, Israel's continued presence in the Occupied
Palestinian Territory, or to Israel's other internationally wrongful acts. 11 Israel's
continued presence in occupied Palestine is in breach of peremptory norms of
international law.
10 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Order of 13 September 1993, 440 (Judge ad hoe Lauterpacht, sep. op.,
para. I 00-102); see also Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 465
(para. 28).
11 On other wrongful acts, see e.g. Namibia's Written Statement of July 2023, Paragraph 151.
7
16. Alternatively, should the UN Security Council be at liberty to require State action that
violates peremptory norms pursuant to Article 103 of the UN Charter, 12 its functions as
outlined under Article 24(2) of the Charter do not presume that it would require,
acquiesce to, or consent in internationally wrongful conduct as a matter of ordinary
Security Council practice. In interpreting the Security Council's resolutions there is an
implicit presumption that the Security Council does not intend to impose any
obligations on UN Member States that breach peremptory norms. In the event of any
ambiguity as to the meaning of Resolutions' terms, resolutions should be interpreted
in that light. 13 In this vein, the language enshrined in UN Security Council resolutions
242 and 338, promoting a peaceful resolution to the conflict by the UN Security Council
cannot therefore be interpreted as implicitly conditioning Israel's withdrawal from the
territories occupied by it in 1967 on the conclusion of a peace process, given that
Israel's continued presence there breaches peremptory norms prohibiting the
acquisition of territory through use of force and the denial of self-determination,
amongst others. This view was also expressed by several of the participants to the UN
Security Council Debates preceding the vote. 14
17. In light of the above, it is clear that the provisions of UN Security Council resolutions
242 and 338, do not in any way impede the exercise of the Court's discretior to issue
an Advisory Opinion, finding that the occupation is illegal and as a consequence,
requiring that Israel's administration of the Occupied Palestinian Territory is brought
to an immediate and unconditional end.
18. Namibia further considers that the agreements signed by Israel and the PLO and cosigned
by other members of the international community, do not contain any legally
12 Article 103, UN Charter: "In the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other international agreement, their obligations
under the present Charter shall prevail."
13 AI-Jedda v. the United Kingdom, European Court of Human Rights, Grand Chamber, Application no. 27021/08,
Judgement, Strasbourg, 7 July 2011; available on http://hudoc.cchr.coc. in site · cng, para. 102; See also Namibia
advisory opinion, paragraph 53 "( ... ) Moreover, an international instrument has to be interpreted and applied
within the framework of the entire legal system prevailing at the time of the interpretation. ( ... )". See also
Prosecutor v. Dusko Tadic, Judgment on Appeal, IT-94-1-A (July 15, 1999), para. 296.
14 Security Council Official Records, 1379th meeting, 16, intervention of the United Arab Republic; Security
Council Official Records, 1382nd meeting, 22 November 1967, S/PV.1382 November 1967, SIPV.1379,
intervention of the USSR and Jordan.
8
binding provisions on negotiation that defer the matter of ending Israel's illegal
occupation to a politically negotiated process exclusively. For example, in the IsraeliPalestinian
Interim Agreement both Israel and the PLO emphasised that, "[T]he two
parties agree that the outcome of the permanent status negotiations should not be
prejudiced or pre-empted by agreements reached for the interim period."15 They also
agreed that "[N]either side shall initiate or take any step that will change the status of
the West Bank and the Gaza Strip pending the outcome of the permanent status
negotiations" and that "[T]he two Parties view the West Bank and the Gaza Strip as a
single territorial unit, the integrity and status of which will be preserved during the
interim period" .16 This essentially means that regardless of the outcome of the ongoing
political negotiations, the "status" of the West Bank and the Gaza Strip, remained that
of an occupied territory.
19. Where the Oslo accords and other agreements promoting a negotiated peace conflict
with peremptory norms, they would be invalid.17 The arrangements concluded between
Israel and the PLO at most committed the parties to politically support and engage in
good faith negotiations during the interim period, which expired on 4 May 1999, and
required Israel's withdrawal. Their transfer of certain administrative functions from the
Occupying Power to the local authority, did not change the status of the West Bank and
the Gaza Strip as occupied territory, and as such, constituted a special agreement
governed by Articles, 7, 8 and 47 of the Fourth Geneva Convention (1949).18
15 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, A/51 /889-S/1997/357 (Sept. 28,
I 995), Article XXXI(6).
16 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, A/5 l/889-S/1997/357 (Sept. 28,
I 995), Article XXXl(7) &(8)
17 "The ILC confronted this basic question: What would the legal position be where two or more parties seek to
derogate by treaty from a norm of general international law the integrity of which lay in States' collective interest?
Nearly all States agreed during the drafting of the VCL T that derogation by treaty from certain legal norms should
not be legally possible and that the attempt to do so should result in the treaty's invalidity. Their disagreement
turned primarily on the criteria for identifying non-derogable legal norms and, crucially, on how the question of
a treaty's validity ought to be adjudicated in these circumstances." From Costelloe, Daniel, Legal Consequences
of Peremptory Norms in International Law: 132 (Cambridge Studies in International and Comparative Law) (p.
54). Cambridge University Press; See also VCLT Article 53, see also UN GA Resolution l/RES/34/65/B of 29
November I 979, which "Declares that the Camp David accords and other agreements have no validity in so far
as they purport to determine the future of the Palestinian people and of the Palestinian territories occupied by
Israel since 1967."
18 Article 7 of the Fourth Geneva Convention provides that "No special agreement shall adversely affect the
situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon
them". Article 8 emphasises that, "Protected persons may in no circumstances renounce in part or in entirety the
9
20. The Occupying Power's retention of its effective control over the Occupied Palestinian
Territory and other administrative functions was accepted as a de facto reality but it did
not confer de Jure legality under the ius ad helium by virtue of the signing of the
agreements. The accords do not involve the PLO's consent to Israel's violations of any
peremptory norms. While the law of State responsibility envisages that a State could
consent to an otherwise internationally wrongful act, jurisprudence establishes that the
waiver of such claims must be "clear and unequivocal",19 while bearing in mind the
explicit caveat that there cannot be a valid waiver of a violation of a peremptory norm
of international law (such as permanent sovereignty and right of self-determination over
natural resources), even by the "consent or acquiescence of the injured State".20
21. The arrangements concluded between Israel and third parties, and Israel and the PLO,
and those arrangements' mandating of a peace process, cannot therefore be perceived
as providing any State or non-state actor fiat to act in disregard of their applicable
international legal obligations of ius cogens and erga omnes nature, from which no
derogation is permitted.
22. It should also be pointed out that, whether or not Israel has an indefinite right to
continue its occupation pending a negotiated resolution is in fact partly the subject of
this Advisory Opinion. While the parties are free to negotiate, they must do so within
the bounds of applicable international law, and the clear establishment of what those
rights secured to them by the present Convention, and by the special agreements referred to in the foregoing
Article". While Article 47 provides that, "Protected persons who are in occupied territory shall not be deprived,
in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as
the result of the occupation of a territory, into the institutions or government of the said territory, nor by any
agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any
annexation by the latter of the whole or part of the occupied territory".
19 Case Concerning Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, Judgment
of26 June 1992, ICJ Reports 1992, p. 240, 247, Para 13 .
20 Article 45, Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries
(2001), para 4: "Of particular significance in this respect is the question of consent given by an injured Stale
following a breach of an obligation arising from a peremptory norm of general international law, especially one
to which article 40 applies. Since such a breach engages the interest of the international community as a whole,
even the consent or acquiescence of the injured State does not preclude that interest from being expressed in order
to ensure a settlement in conformity with international law."
10
bounds are can only assist the parties in any good faith efforts.21 In order to understand
how the General Assembly can best contribute to the process of bringing Palestine to
full independence in the fulfilment of its exercise to full external self-determination, 22
the Court is now being asked by the General Assembly to help it determine what exactly
the legal status of that prolonged occupation is.
23. The fact that a negotiated solution carries the political support of the international
community, but is not legally required, is also evident in the fact that nothing in the
negotiation roadmap precludes Israel from deciding to unilaterally withdraw from the
entirety of the Occupied Palestinian Territory and dismantle its belligerent occupation
and associated administration in accordance with the relevant human rights law
responsibilities that it has.
24. Namibia warns, that should the Court find otherwise, the consequences for international
conflict prevention would be grave. Essentially, it would give rise to a precedent, where
a State may occupy another State in violation of the ius ad helium, and then obtain that
other State's commitment to indefinite negotiations, and essentially acquire territory
through the use of force. An occupied State may be unduly forced to commit to
negotiations where, for example, the subjugated State does not have sufficient military
might to free itself from an act of continued territorial aggression.
25. While the international community can support such a political process, provide
resources for it and take measures to facilitate it (as opposed to, for example, support
the use of armed resistance, and the act of aggression), its support does not oblige the
21 See also Norway's written statement: "Norway believes that a lasting, peaceful solution to the Israeli-Palestinian
conflict must be found through political negotiations and must be in conformity with the framework of
international law"; See also the Waif Advisory Opinion, paragraph 162: "efforts to be encouraged with a view to
achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems
and the establishment of a Palestinian State, existing side by side with Israel and its other neighbours, with peace
and security for all in the region" (emphasis added).
22 Namibia, Written Statement of July 2023, paragraphs 145-146: "The special status of right of the Palestinian
people to external self-determination was recognized under Article 22 of the Covenant of the League of Nations.
That Covenant classified Palestine as a Class A mandate, whose 'existence as independent nations can be
provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until
such time as they are able to stand alone'. As the International Court of Justice outlined in the Namibia Advisory
Opinion), the 'ultimate objective' of the Mandate as a sacred trust was the 'self-determination and independence
of the peoples concerned'. As such, the right of Palestinian self-determination continues as a 'sacred trust'. There
is no reversion of this sacred trust - no reversion back to a colonial status."
11
State whose territory is occupied to negotiate, nor does it alleviate the Occupying Power
and third States from their relevant obligations under international law, nor could it
alter the ius ad bellum status of an occupation from illegal to legal.
26. Namibia further stresses that the right to self-determination of a State and of a People,
also entails the right to free and informed consent to the imposition of any obligations
on it. In Legal Consequences of the Separation of the Chagos Archipelago from
Mauritius in 1965, the Court underscored that consent has to be freely provided (the
"freely expressed" and "genuine will" of the people of the territory concemed).23 It
would be helpful if the Court could indicate, what the consequences are of an
occupation that is illegal on ius ad bellum grounds for the ability of the representatives
of the occupied State or people, to provide.free and genuine consent to any cession of
its territory, in light of the unlawful use of force against the occupied State that such an
illegal occupation entails.24 While the principles laid down in the Chagos Advisory
Opinion pertain to a Non Self-Governing Territory, the Occupied Palestinian Territory
has an equal right to external self-determination deriving from its Mandate status as a
'sacred trust', and the principles related to consent are therefore equally applicable to
it. 25
Ill. ECONOMIC DEALINGS WITH THE OCCUPYING POWER
27. Several member states have correctly asserted that the obligations laid out in the
Namibia Advisory Opinion, providing that Member States must "abstain from entering
into economic and other forms of relationship or dealings with South Africa on behalf
of or concerning Namibia which may entrench its authority over the Territory"26 would
23 UN Security Council S/2002/161, 'Letter dated 29 January 2002 from the Under-Secretary-General for Legal
Affairs, the Legal Counsel, Addressed to the President of the Security Council'. See also Written Submission by
Palestine, paragraph xxx (re: content of the right to self-determination).
24 Free and informed consent as a corollary of the principle of self-determination. See, mutatis mulandis, Chagos
Advisory Opinion "any detachment by the administering Power of part of a non-self-governing territory, unless
based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to
self-determination." - Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
ICJ (Advisory Opinion) 2019, para 160
25 See, written submission of Namibia to the Court of July 2023, paragraph 146-148.
26 Namibia Advisory Opinion, paragraph 124.
12
apply mutatis mutandis to third State obligations vis-a-vis their dealings with Israel, in
light of its unlawful occupation of the Occupied Palestinian Territory. They have also
highlighted what their duty of non-recognition entails for their treaty relations with the
Occupying Power.27
28. As outlined in the written statement of the African Union:
"It is of crucial importance that the duty not to recognise does not amount "to an
obligation without real substance." ( ... ) Instead, concrete steps must be taken to
ensure that the breach's consequences are minimised, and in particular that the
breaching state obtains no benefit thereof. These steps may include: ( ... ) (c) A
moratorium on any international legal agreement with the breaching state that
would apply or extend its benefits to the unlawfully occupied territory. Existing
international instruments between any state and Israel, to the extent that they extend
to the occupied territories (if the definition of "territory" in that instrument is
capacious enough), should be disregarded to that extent."28
29. With respect to such international legal agreements with the Occupying Power,
Namibia would like to provide the following additional comments to the content of
these obligations:
30. As Namibia understands the current status of customary treaty law, States may not
conclude treaties with an Occupying Power that impose obligations on the territory it
occupies or its people, as the exercise of such treaty-making powers is reserved for the
legitimate sovereign, and its exercise by an Occupying Power would infringe on the
occupied people's right to self-determination (see also the principle of paeta tertiis nee
noeent nee prosunt). 29
27 See also UN SC Res 2334 and Namibia Advisory Opinion § 122 (member States are under obligation to abstain
from entering into treaty relations with South Africa in all cases in which the Government of South Africa
purports to act on behalf of or concerning Namibia. With respect to existing bilateral treaties, member States must
abstain from invoking or applying those treaties or provi sions of treaties concluded by South Africa on behalf of
or concerning Namibia which involve active intergovernmental Co-operation."
28 See Written Submission of the African Union, July 2023, paragraph 262-263.
29 See, VCLT Section 4, see also CJEU Case C-104/16 P Council v Polisario; CJEU Case T-279/19 Council v
Polisario; Preliminary Ruling of the CJEU in Western Sahara Campaign UK v HMRC etc. of27 February 2018
13
31. Nevertheless, States have at times desisted from inserting a territorial clause that
explicitly and unequivocally excludes the Occupied Palestinian Territory from the
territorial scope of applicability of an agreement they conclude with the Occupying
Power, while simultaneously arguing they could unilaterally ensure that they do not
recognise the Occupying Power's sovereignty over the Occupied Palestinian Territory,
or could unilaterally ensure they do not give any legal effect to the Occupying Power's
imposition of its sovereign treaty-making powers over the Occupied Palestinian
Territory.30
32. Namibia considers this position to be misguided. Where a State has knowledge that an
Occupying Power applies its international treaties to some or all of the territories
occupied by it in accordance with the wrongful elements of that Occupying Power's
own national law ( e.g., its de Jure or de facto annexation. See also VCL T Article 29),
it must negotiate its treaties with that Occupying Power in full consideration of this
knowledge. Where third States have knowledge that Israel applies its treaties with other
parties to the Occupied Palestinian Territory, in accordance with Israel's national
legislation and in accordance with the ordinary meaning of the term "the State oflsrael"
under its national legislation:
o States that fail to insert a clear and unequivocal territorial clause in their bilateral or
multilateral agreements with Israel would implicitly consent to that Occupying
Power's extension of its sovereign treaty-making authority to the Occupied
Palestinian Territory;
o Their failure would constitute such consent in light of their awareness that the
Occupying Power will unilaterally apply that agreement to the Occupied Palestinian
Territory, as mandated under its own legislation, and in the absence of an explicit
and unequivocal territorial clause excluding the Occupied Palestinian Territory
from the territorial scope of applicability of that agreement;
(C-266/16); CJEU's ruling of 2021 in joined cases T-344/19 and T-356/19. CJEU Judgment of 25 February 2010
in Firma Brita GmbH v Hauptzo/lamt Hamburg-Hafen.
30 See also UN SC Resolution 2334, operative paragraph 5, which " .·- c alls upon all States, bearing in mind
paragraph I of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel
and the territories occupied since 1967".
14
o By virtue of such implicit consent, States would recognise and give legal effect to
the Occupying Power's exercise of powers reserved for legitimate sovereigns in the
Occupied Palestinian Territory, specifically, to their exercise of sovereign treatymaking
powers over the Occupied Palestinian Territory. This would amount to a
violation of their duty of non-recognition;
o States would also be violating their duty of not aiding and assisting in as far as their
omission would predictably assist the Occupying Power in its infringement of the
occupied territories' people's right to self-determination, and the infringement of
the occupied people's right to permanent sovereignty over their own natural
resources.
33. With respect to treaties that do not have a clear territorial scope of applicability, the
duty of non-recognition would require a careful investigation by third States ofall treaty
provisions to ensure that their application or implementation of that treaty will not result
in their treating as lawful, giving legal effect to, or implying consent to the Occupying
Power's exercise of competences reserved for the legitimate sovereign in the Occupied
Palestinian Territory, or to acts by the Occupying Power in the Occupied Palestinian
Territory, that are otherwise unlawful.
34. With respect to other dealings with the Occupying Power, the duty of non-recognition
would at least entail that third States are prohibited from:
o Recognising as lawful any acts or extra-territorial exercises of authority reserved to
legitimate sovereigns carried out by Israeli authorities in the Occupied Palestinian
Territory. The Occupied Palestinian Territory does not fall under Israel's national
authorities' territorial competence;
o Recognising as lawful any application of Israel's domestic legislation extraterritorially
and in violation of the limitations on an Occupying Power laid down in
Article 43 of the Hague Regulations of 1907;
o Recognising as lawful any measures that discriminate against protected persons in
the Occupied Palestinian Territory, or are intended to render more sustainable the
establishment of Israel's natural and legal persons on that territory, or their
exploitation, use or control of the Occupied Palestinian Territory's natural resources
without the consent of its people. It includes their recognition of such acts in the
15
context of their governance of commercial exchanges, transactions in goods and
services, and the implementation of trade-related measures.
35. On the other hand, the duty of non-recognition does not extend to acts such as the
registration of births, deaths and marriages, where such non-recognition could only
work to the detriment of the protected persons of the occupied territory (mutatis
mutandis from Namibia Advisory Opinion, para.125).
36. With specific regard to economic dealings with the Occupying Power, Namibia would
like to provide some additional comments on a matter raised by Ireland and other
States31 in their submissions:
55. ( ... )The General Assembly and Security Council have, in the past, called
upon all states to refrain from rendering any assistance to the maintenance of
situations of denial of self-determination.
56. In Ireland's view, these obligations require all states, as well as international
organisations competent in the field of external trade (which for Ireland is the
European Union), to review their trading relationships with the settlements in
the Occupied Palestinian Territory and to take steps to prevent trade that assists
in the maintenance of the situation created by the settlement activity, or that
implicitly recognises or serves to entrench Israel's settlement or annexation of
that territory.
37. Namibia notes that States are required not to aid and assist in the commission of an
internationally wrongful act, nor to render aid or assistance in maintaining a situation
created by a serious breach of international law.32 It is Namibia's understanding that
States who trade in settlement products are doing so in breach of their obligations not
to aid or assist serious breaches of international law, or the situations created by them.
31 Among others: the League of Arab States; Syrian Arab Republic; State of Palestine; African Union; Saudi
Arabia.
32 Draft Articles on State Responsibility, Article 16 and 41 + commentaries.
16
38. The International Law Commission stipulates that, whether or not a State aids and
assists in a wrongful act depends on three elements:33
a) 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;
b) secondly, the aid or assistance must be given with a view to facilitating the
commission of that act, and must actually do so;
c) and thirdly, the completed act must be such that it would have been wrongful had it
been committed by the assisting State itself.
39. When it comes to States' obligations not to, through their acts or omissions, contribute
to maintaining or sustaining the situations created by serious breaches of international
law, the standard has been argued by commentators to be lower and only requires
States' knowledge of such a breach and the resulting situation.34
40. With respect to the serious breach at stake, and the situation created by it, the unlawful
appropriation of property35 is a corner stone of Israel's settlement enterprise and
colonisation of the Occupied Palestinian Territory. No Israeli nationals can be
effectively transferred into the Occupied Palestinian Territory, without the Occupying
Power reserving and allocating property to their exclusive use, conveying such property
to them, and enforcing such allocations and conveyance through the use of force vis-avis
the protected persons, the Palestinian people. Such uses include the property's
residential and commercial (including agricultural and industrial) use by Israeli natural
or legal persons to which the property is conveyed. The appropriation of property, not
justified by military necessity and carried out wantonly and unlawfully, including
where done so for the purpose of facilitating the transfer of Israel's own civilian
population into the Occupied Palestinian Territory, constitutes a grave breach of the
33 ILC draft articles on state responsibility, commentary to Article 16.
34 Harriet Moynihan, 'Aiding and assisting : the mental element under article 16 of the international law
commission's articles on state responsibility', page 18, International & Comparative Law Quarterly, Volume 67
, Issue 2, April 2018, pp. 455 - 471 DOI: https://do i.org/10.1 017/S00205893 17000598: "The reference to a
'serious breach' in this context means a gross and systematic failure by the responsible State to fulfil an obligation
imposed by a peremptory norm. The ILC Commentary notes that the lack of the subjective element in Article
41 (2) is motivated by the fact that 'it is hardly conceivable that a State would not have notice of the commission
of a serious breach by another State'."
35 Under the meaning of Article 47 of Geneva Convention IV of 1949
17
Fourth Geneva Convention. As such, it is a continuous crime, i.e., the unlawful
appropriation continues until the property is reverted to its original use or another lawful
purpose. The unlawful appropriation of property by Israeli authorities in the Occupied
Palestinian Territory, in widespread and systematic manner, is an essential element to
the establishment of Israel's settlements, in flagrant violation of international law.
41. Once the Occupying Power appropriates property, it transfers possession and control
over such property to several of its own natural or legal persons. It does so for its own
unlawful purposes and objectives - i.e., facilitating the transfer and habitual residence
of its own (Israeli) natural or legal persons in the Occupied Palestinian Territory. Those
natural or legal persons subsequently obtain possession and control over that property.
The possession by Israeli natural and legal entities of unlawfully appropriated property
in the Occupied Palestinian Territory, for the uses allocated to such property by the
Occupying Power, constitutes a situation created by a serious breach of international
law.
42. In order for Israeli natural and legal persons to maintain such possession and control
they must derive some utility from the property conveyed to them by the Occupying
Power, i.e., that possession needs to confer some advantage to the controlling entity:36
a. Such advantage can be derived from their residential use of the property;
b. Such advantage can be derived from their commercial use of the property and
subsequent economic gain from it.
43. Natural and legal persons which possess unlawfully appropriated property use such
property as a factor of production in their production of goods and services, i.e., they
utilise their possession of the land together with other factors of production they have
also obtained (i.e., capital and labour) and transform them into a new good or service
that can be exchanged gainfully/profitably through commercial transactions.
36 Possession of immovable property also often involves its maintenance or safeguarding, which includes investing
in it and improving it. Such activities would only be engaged in by an entity with respect to property if some
advantage can be seen to be derivable from its continued possession of the immovable property.
18
44. Where commercial transactions in such goods and services are permitted and take place,
the ability to profitably sell goods and services obtained using such unlawfully
appropriated property facilitates the continued possession of that property by those
controlling Israeli natural and legal persons. Namibia understands that the purchase of
goods or services produced using unlawfully appropriated property ensures that the
natural and legal persons to whom the property was unlawfully conveyed can maintain
their gainful use of that property. Those commercial transaction also ensure that the
Occupying Power can continue to satisfy the purposes for which it has unlawfully
appropriated the property, allocated it to its own nationals' use, conveyed it to their
possession, and continuously enforces and protects their possession of it. In sum: Israeli
natural and legal persons' gainful use of unlawfully appropriated immovable property
in the Occupied Palestinian Territory, is essential to maintaining their continued
possession of such property, and is essential to the satisfaction of the unlawful purposes
of the Occupying Power that are served by its unlawful appropriations.
45. By failing to prohibit the import, marketing and sale in their jurisdictions of settlement
goods and services, States facilitate the maintenance of such natural and legal persons'
possession of that unlawfully appropriated property; and facilitate the Occupying
Power's accomplishment of the goals it is pursuing through maintaining and continuing
to enforce the property's unlawful appropriation, in as much as maintaining the gainful
uses by its own nationals to which that property has been allocated, must be
consummated by economic advantages derived from trading in the products the
property is used to produce.
46. Namibia notes that whether States violate their duty of not aiding and assisting is not
dependent on whether their commercial dealings in such settlement goods or services
are necessary or sufficient to maintain possession by Israeli natural or legal persons of
unlawfully appropriated property (the situation resulting from a serious breach), but
merely requires that such commercial dealings contribute to maintaining their
possession.
47. While a State engaging in trade relations with another State does not normally assume
the risk that its trade may amount to its assistance or aid in maintaining the situation
resulting from a serious breach, the situation pertaining to the Occupied Palestinian
19
Territory, is markedly different. States that are members of the United Nations, in view
of the many Security Council resolutions and General Assembly resolutions, the
Human Rights Council's work, the work of the UN Special Rapporteur on the situation
in the Occupied Palestinian Territory, and the work of the UN Commission oflnquiry,
are all aware of the relevant wrongful acts of the Occupying Power and the various
situations resulting from such wrongful acts (such as settlements, or the resulting
possession and control by Israeli natural and legal persons over property unlawfully
appropriated).
48. The ILC states in its commentary to Article 4137 that "[A]s to the elements of"aid or
assistance", 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".
49. The ILC commentary suggests that only knowledge of the wrongful conduct itself
occurring is required. On that basis, the relevant third States continuing their trade in
settlement products would appear to be in breach of their customary obligations as third
States if they continue such trade.
50. However, should the Court find that the ILC commentary on Article 41 of its Articles
on State Responsibility does not reflect customary international law, and the principles
regarding intent laid down for the legal concept of aiding and assisting in Article 16 are
equally applicable to determine whether a State is rendering aid and assistance to the
maintenance of a situation resulting from a wrongful act, we here outline some
additional points for its consideration:
51. The commentary to Article 16 reads that "the aid or assistance must be given with a
view to facilitating the commission of that act, and must actually do so;" i.e; "A State
is not responsible for aid or assistance under article 16 unless the relevant State organ
intended, by the aid or assistance given, to facilitate the occurrence of the wrongful
37 Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001
20
conduct and the internationally wrongful conduct is actually committed by the
aided or assisted State." [our emphasis]
52. Intent, for the purpose of determining whether a State is 'aiding or assisting' must be
understood not merely as the "desire or will to bring about the consequences of the
crime but" also as the awareness, i.e. the knowledge, that facilitating the maintenance
of the situation created by another State's serious breach of international law will be an
almost inevitable outcome of the first State's acts or omissions, i.e. intent must be
understood as involving 'oblique intent' .38 The State must not have had the purpose to
facilitate the maintenance of a situation created by a serious breach, but must have been
aware (had knowledge) that such facilitation would be an outcome of its own conduct
(acts or omissions) barring rare or unforeseen events.
53. If the requirement for establishing intent was that a State had to be in common cause
with the perpetrating State or needed to have as its purpose to facilitate the maintenance
of the situation created by a serious breach of international law, the requirement not to
render aid or assistance would swiftly be rendered meaningless. States would simply
be able to claim that the purpose of their conduct is not the facilitation of the wrongful
act or of the situation resulting from a serious breach and that they therefore can persist
in such facilitating conduct irrespective of its consequences, as their purpose may be -
depending on the breach and situation in question - ensuring the economic stability of
38 Harriet Moynihan, 'Aiding and assisting: the mental element under article 16 of the international law
commission's articles on state responsibility', page 15, International & Comparative Law Quarterly, Volume 67
, Issue 2, April 2018, pp. 455 ~ 471 DOI: htLps://<loi.org/l0.1017/S0020589317000598: "The ICC Pre-Trial
Chamber in Prosecutor v Bemba, in its consideration of Article 30 of the Rome Statute, stated that direct intent
requires that the suspect 'knows that his or her acts will bring about the material elements of the crime and carries
them out with the purpose, will or desire to attain this result'. The second part of sub-paragraph (b)---'is aware
that it will occur in the ordinary course of events' -describes a more oblique form of intent, where a person does
not have the desire or will to bring about the consequences of the crime but is aware that those elements will be
the almost inevitable outcome of his or her acts or omissions. The ICC Pre-Trial Chamber in Bemba stated that,
in relation to this more oblique form of intent, the volitional element decreases substantially and is
overridden by the cognitive element, i.e., awareness that his or her acts 'will' cause the undesired proscribed
consequence. This reflects the orthodox standard of intention in English criminal law, which includes knowledge
that the consequence was virtually certain to follow" (emphasis added). See also the concepts of'dolus eventualis'
or 'subjective recklessness'.
21
their own markets through continued trade, ensuring they do not harm bilateral relations
with the perpetrating state, ensuring continued profit from arms sales, etc.39
54. Based on that standard of 'oblique intent', a third State who fails to regulate the import
and sale in its market of settlement goods and services would thereby appear to be in
breach of its duty not to render aid or assistance to the situation resulting from a serious
breach of international law where:
a. The specific third State's market constitutes a market for settlement goods and
services;
b. The specific third State has knowledge of the unlawful appropriations of property
and their unlawful purpose (i.e., the transfer and settlement of Israel's civilian
population in occupied territory), and the resulting possession by Israel's natural
and legal persons of such property;
c. The specific third State is aware that settlement goods and services are imported,
marketed, and sold within its ownjurisdiction;
d. The specific third State has knowledge of the sustaining economic interface
between the sale of settlement goods and services in its market and the continued
gainful possession and use by Israel's natural and legal persons of such
unlawfully appropriated property;
e. The specific third States nevertheless fails to prohibit such import, marketing and
sale in its own jurisdiction.
55. Namibia therefore takes the position that States that do not have as the purpose of their
omission to prohibit the import, sale and marketing of settlement goods to render aid
and assistance to maintain the situation created by the serious breach are therefore not
relieved of their obligations to prohibit such trade.
56. Moreover, in as far as the conveyance of the unlawfully appropriated property in the
Occupied Palestinian Territory, to Israel's natural and legal persons, and the resulting
possession of such property by such persons, constitutes part of the act of appropriation
39 Because the serious breach that gave rise to the situation in question is a peremptory norm, other States
legitimate interests that they may pursue in their activities that constitute aiding or assisting would not trump that
norm and the importance of preventing its breach.
22
as a continuous act, the rendering of aid and assistance to such continued possession
and commercial use would constitute a violation of the customary obligation of not
aiding and assisting in the commission of a wrongful act under the meaning of Article
16 of the ILC Articles on State Responsibility as well.
57. Namibia would find it helpful if the Court could elaborate, in light of the above, on
whether it finds that the continued import of settlement goods may constitute a violation
of States' obligations not to render aid or assistance in the maintenance of a situation
resulting from a wrongful act, or not to aid and assist in the commission of a wrongful
act, and if it could elaborate on what the elements of facts and law are that must be
established for a State to be found in violation of that customary obligation in the
present context.
IV. GENOCIDE
58. With respect to Cuba's statement that "rather than an obvious apartheid situation,
pursued as a crime against humanity, this is an act of low-intensity genocide that is
being perpetrated with systematic and effective cruelty," Namibia would like to make
two additional observations:
1) That, without prejudice to whether what is termed as "a low-intensity genocide"
was occurring prior to 7 October 2023, Israel is now attempting to commit, if not
actively committing crimes against humanity which could be tantamount to an act
of genocide in the Occupied Palestinian Territory.
2) That Israel's commission of the crime against humanity could amount to an act of
genocide in the Occupied Palestinian Territory, in any shape or form does not
exclude its ability to simultaneously impose a system of apartheid over the
Occupied Palestinian Territory, as it indeed is doing.40
40 Namibia, Written Statement of July 2023, p.8-33.
23
59. The prohibition against genocide is a peremptory norm, i.e., no derogation from that
prohibition is permitted.41 The Convention on the Prevention and Punishment of the
Crime of Genocide42 specifies genocide as "any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as
such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
( d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
60. The distinctive feature that renders the acts listed above genocidal, is their intent, i.e.,
whether they are intended to destroy, in whole or in part, a national, ethnical, racial, or
religious group, they can amount to genocide.
61. Since 7 October 2023, Israel has been engaged in a large-scale indiscriminate bombing
campaign of Gaza that has cost at least 4500 lives its first two weeks and has amounted
to the wilful and systematic destruction of civilian homes ('domicide').43 It has also
been engaged in a ruthless tightening of its 17-year siege on Gaza through the cutting
of electricity and water provision to the Gaza Strip and prohibiting any transport of
food, fuel and medicine into the Gaza through its border crossings with it. The Israel
Defence Force has issued evacuation orders for the I. I million population living in the
North of the Gaza Strip to move to the South of the Gaza Strip,44 while simultaneously
bombing the South of the Gaza Strip to which it required people to evacuate, including
41 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia); Judgment dated 3 Feb. 2015, para. 87.
42 Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by the General Assembly
of the United Nations on December 9, 1948 as General Assembly Resolution 260, and entered into force on 12
January 195.l
43 See the flash updates provided by the United Nations Office for the Coordination of Humanitarian Affairs
(OCHA) at h! lp!i:ll,~:w,1 .ochao Jl.Qrg; see also United Nations Office of the High Commissioner for Human
Rights, Press Release, 19 October 2023, 'Gaza: UN experts decry bombing hospitals and schools as crimes
against humanity, all for prevention of genocide.'
44 Israel Defence Force, IDF announcement sent to civilians of Gaza City, available at:
<https://twitter.com/IDF /status/ 171270730 l 369434398>
24
areas marked for safe passage.45 The World Health Organisation referred to the
evacuation order for hospitals in the North of the Strip as "a death sentence for the sick
and injured".46
62. The abovementioned serious and systematic violations of international humanitarian
law (war crimes) and possible crimes against humanity involve the killing of
Palestinians in Gaza, the causing of serious bodily or mental harm to Palestinians in
Gaza, and the deliberate infliction on Palestinians in Gaza of conditions oflife that can
bring about their physical destruction in whole or in part. Namibia warns that Israel
may be imposing such conditions and perpetrating such crimes which could amount to
acts done with genocidal intent, i.e., they are calculated to bring about the physical
destruction of the Palestinian people in whole or in part. Namibia is led to believe this
through the nature of Israel's acts and the severe effects of such acts on the Palestinian
lives, bodily and mental well-being, and through the accompanying rhetoric indicating
genocidal intent, as well as possibly constituting incitement to genocide, on behalf of
Israel's public officials. Those statements (translated from Hebrew) include, but are not
limited to, the following:
a. "We are imposing a complete siege on Gaza. There will be no electricity, no food,
no water, no fuel. Everything is closed. We are fighting human animals and we act
accordingly." - Israeli Defense Minister Yoav Gallant.47
b. "Human animals must be treated as such. There will be no electricity and no water
[in Gaza], there will only be destruction. You wanted hell, you will get hell." -
Israeli Major General and COGA T chief Ghassan Alian.48
45 Al-Haq, Al Mezan, PCHR, "No Safe Place: Despite 'Evacuation Order', Israel Continues to Carpet-Bomb
Gaza from North To South" (18 October 2023), available at: <https://www.alhaq.org/advocacy/21927.html>
46 World Health Organization, Statement, 'Evacuation orders by Israel to hospitals in northern Gaza are a death
sentence for the sick and injured', 14 October 2023
47 Emmanuel Fabian, "Defense minister announces 'complete siege' of Gaza: No power, food or fuel" (9 October
2023), available at: < hllps://www.LimcsolisJ"ael.com/liveb log cnlrv/dclcnse-minisLcr-an nounces-complclcsi
cgc-o l'-gaza-no-pU\ vcr-food-or-ruel/>
48 Gianluca Pacchiani, "COGAT chief addresses Gazans: 'You wanted hell, you will get hell"' The Times of
Israel ( I O October 2023), available at: 111 s ://w,, \\ .timcsofisrat·l.com/ livebloe. <:n lr •/co •at-eh icl:.addresse.~
e.azans-,,ou-\\'antcd-hcl 1-vou-,vil 1-gcl-hcl I/
25
c. "We are fighting against human animals ... Gaza won't return to what it was before.
We will eliminate everything." - Israeli Defense Minister Yoav Gallant.49
d. "It's an entire nation out there that is responsible. It's not true, this rhetoric about
civilians not aware, not involved. It's absolutely not true. They could have risen up
against that evil regime, which took over Gaza in a coup d'etat. But we are at war.
We are at war. We are defending our homes. We are protecting our home. That's
the truth. And when a nation protects its homes, it fights. And we will fight until
we break their backbone." - Israeli President Isaac Herzog.50
e. All the civilian population in Gaza is ordered to leave immediately. We will win.
They will not receive a drop of water or a single battery until they leave the world."
- Israeli Minister of Energy Israel Katz. 51
63. UN Experts52 have also sounded the alarm: "There is an ongoing campaign by Israel
resulting in crimes against humanity in Gaza. Considering statements made by Israeli
political leaders and their allies, accompanied by military action in Gaza and escalation
of arrests and killing in the West Bank, there is also a risk of genocide against the
Palestinian People. "53
49 "Israeli defence minister orders 'complete siege' on Gaza" Al-Jazeera (9 October 2023), available at: <
hltps://,vw, .oljiuccrn.corn /progrnm/ncwsfccd/2023/ 10/9/i racli -<lcfoncc-m inislcr-ordcrs-complcLc-sic11conaaal/.:~:
tex1=%l~2%80%9 \: e%20are%20fi •ht in %20a oinst%20human.attack%20bv%20l lamas%20o
n%201 srael .>
50 "'No Innocent Civilians in Gaza', Israel President Says as Northern Gaza Struggles to Flee Israeli Bombs" The
Wire (13 October 2023), available at: < hllps://thcwirc.in/world/northcrn-gaza-isracl-palcstinc•con nict>
51 Bethan McKernan, "No power, water or fuel to Gaza until hostages freed, says Israel minister" The Guardian
(12 October 2023 ), available at: < hLLps:1/www. thcguurd ian .com/\HWld/2023/oct/ 12/no-powcr-\ alcr-or-fucl -to l!
aza-unli 1-hostagcs-freed-sav. -isracl irn
in istcr/1 :- :Lcx t=Thc%20cncre. v %20m i 11 i stcr%2C%20lsrael %20Katz. which %20is%20a%20war%20crirne>
52 Special Rapporteur on the human rights to safe drinking water and sanitation; Special Rapporteur on the
situation of human rights in the Palestinian Territory occupied since 1967; Special Rapporteur on Violence
against women and girls; Special Rapporteur on the human rights of internally displaced persons; Special
Rapporteur on the right to food; Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health; Special Rapporteur on the right to adequate housing; Special
Rapporteur on the right to education.
53 United Nations Office of the High Commissioner for Human Rights, Press Release, 19 October 2023, 'Gaza:
UN experts decry bombing hospitals and schools as crimes against humanity, all for prevention of genocide.'
26
64. In light of the above, Namibia considers that Israel is now attempting to commit, if not
actively committing crimes against humanity and such brutal acts could amount to,
genocide in the Occupied Palestinian Territory. Namibia respectfully asks the Court to
elaborate on what the legal consequences are for Israel and third States of such an
attempt or commission.
V. THE /US AD BELLUM ILLEGALITY OF THE OCCUPATION
65. France's written statement cautioned that the illegality of the occupation per se may
result in the failure to apply the law ofoccupation to the Occupying Power's conduct.54
This is a misguided and dangerous suggestion that Namibia wishes to address.
66. Namibia would like to comment on the relationship between the various bodies of law
of relevance to this advisory opinion, in order to ensure this relationship has been fully
clarified on the record.
67. The ius in hello governs the conduct of an Occupying Power during an occupation. It
does so whether or not an occupation is illegal, as the status of the occupation does not
alter the obligations of the Occupying Power under that body of law, or the obligations
of the international community to ensure the Occupying Power's respect with that body
oflaw.
68. The ius ad helium governs the use of force. A belligerent occupation, such as Israel's
occupation of the Occupied Palestinian Territory, entails the use of force: it entails the
54 France § 51.
France§ 51 : De l'avis de la France, les consequencesjuridiques de ce constat doivent etre appreciees a leur exacte
mesure. Le caractere prolonge d'une occupation, s'il est contraire au fait que celle-ci devrait etre provisoire
par nature, n'a pas pour consequence de rendre celle-ci illicite per se. En effet, ce constat d'illiceite per se
pourrait conduire a soutenir l'inapplicabilite du regime juridique de !'occupation. Cela aboutirait a un
resultat, manifestement absurde ou deraisonnable, qui serait de priver Jes populations civiles de la
protection offerte par ce regime, protection d'autant plus necessaire que ladite occupation dure dans le
temps.
27
placing of a territory under the control of hostile forces, without the consent of its
legitimate sovereign or that territory's people.
69. Namibia's position with respect to Israel's initial aggression and occupation of the
Occupied Palestinian Territory in 1967 has been laid out in its Written Statement of
July 2023, paragraph 142: "Israel's use of force against Egypt and other Arab States in
1967 was a pre-emptive use of force in the absence of an armed attack, and therefore
an unlawful act of aggression in violation of Article 2(4) and Article 51 of the UN
Charter. Israel's presence in the Palestinian territory has been illegal from the outset in
1967 and the consequent occupation is also illegal."55
70. Should the Court disagree with this position, the Court has to address the effect of
Israel's prolonged occupation on the right to self-determination of the Palestinian
people and the consequent status of that occupation. Should the Court determine that
Israel's occupation was lawful in 1967, Namibia respectfully submits that "An
occupation as an act of self-defence against an armed attack is legitimate for as long
as the armed attack continues ( .. .) The question of when the continuing act of selfdefence
ends is answered simply: when it is no longer necessary to repel an armed
attack through the use of force. Either of two scenarios may arise: first, the armed
attack has taken place, giving rise to a right to use necessary and proportionate force
in self-defence, and is over; or secondly, an armed attack leads to an occupation, and
the armed attack continues as long as the occupation lasts."56 It is clear in the case of
Israel's occupation of the Occupied Palestinian Territory that the armed attack has not
lasted as long as the occupation. The occupation, if not illegal at the outset, has become
unlawful through its unnecessary and disproportionate prolongation from a ius ad
bellum perspective.
71. Israel may argue that its maintenance of its occupation, if no longer necessary and
proportionate on grounds of self-defence prior to 7 October 2023, became necessary
55 See also UN General Assembly Resolution 3314, Annex (Definition of Aggression), Article 5(3).
56 2023 Study, 'the legality of the Israeli occupation of the occupied Palestinian territory, including East
Jerusalem' UN Committee on the exercise of the inalienable rights of the Palestinian people, University of
Galway Irish Centre for Human Rights
28
and proportionate on ius ad helium grounds in light of the hostilities by non-State actors
taking place in its territory on 7 October 2023 .
72. First, it should be noted that the attacks of 7 October 2023 resulted from acts of a nonState
actor operating in territory unlawfully occupied by Israel.
73. Namibia recalls that in its Advisory Opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the Court confirmed that
Article 51 of the UN Charter recognizes the existence of an inherent right of selfdefence
in the case of armed attack by one State against another State. The Court
concluded that since Israel does not claim that the attacks against it are imputable to a
foreign State, that Israel exercises control in the Occupied Palestinian Territory, and
that threats which it regards as justifying its conduct originate within, and not outside,
occupied territory: "the Court concludes that Article 51 of the Charter has no relevance
in this case". 57
74. It should also be noted that there has not been a UN Security Council Resolution since
7 October 2023 purporting that Israel has a right to self-defence against those attacks
that justifies its continued blockade, bombardment, and occupation of parts or the whole
of the Occupied Palestinian Territory, as necessary and proportionate on ius ad helium
grounds.
75. Further, Israel, the Occupying Power has refused to recognise that there is a State or
people with an externally recognised right to self-determination whose territorial
integrity it is infringing on. That refusal is one of the root causes for its 56-year-long
occupation. That unlawful occupation has in tum given rise to resistance of the
occupied population. Such resistance is an inevitable consequence of the act of
aggression against the Occupied Palestinian Territory and attempts by the Occupying
Power to the permanent subjugation of its people, characterised by the imposition of an
57 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) International Court of Justice Reports 136 (2004), para. 139
29
apartheid system, amount to serious violations of core norms of international
humanitarian law, and the wrongful de facto and de Jure annexation of that territory.58
76. The UN General Assembly has reaffirmed the legitimacy ofresistance, including in the
form of armed struggle. Namibia takes the position that such activity is not just
legitimate but also lawful under the ius ad bellum.59 Just like States have a right to selfdefence
against territorial aggression by another State, peoples with a recognised right
to external self-determination, who are placed under the colonial subjugation and
foreign occupation and control by another State, can use armed means in order to defend
themselves against and seek to put to an end that continued territorial aggression against
them.60
77. Namibia also takes the position that the means and methods employed under the ius in
be/lo by non-State actors do not alter the legality of their armed activities on ius ad
helium grounds, and vice versa. This distinction between ius in be/lo and ius ad helium
is one of the cornerstones of the international legal system regulating armed conflict.
78. Should the Court take the position that States have a right to self-defence against nonState
actors that involves the violation of the territorial integrity of another State or
people with an external right to self-determination through continued occupation, and
that they have such a right irrespective of the absence of a UN Security Council
resolution, and irrespective of whether the act against it was in response to its own
initial act of aggression, any act of armed resistance by a non-State actor61 against an
unlawful act of aggression would be sufficient to turn an unlawful occupation into a
lawful one. Such an interpretation of the law would incentivise the persistence in illegal
wars of aggression and the indefinite acquisition of territory by force globally.
58 See also Spain's Written Statement, paragraph 8.2: "8.2. Any practice conducive to de jure or de facto
annexation of the Palestinian occupied territories would render such an occupation illegal."
59 See, e.g., UN GA Resolution 3246 of 29 November 1974, which "reaffirms the legitimacy of the people's
struggle for liberation from colonial and foreign domination and alien subjugation by all available means,
including armed struggle;" see also League of Arab States Written Statement of July 2023, Chapter 18:
'Consequences for the Palestinian people: the right to resist' (p.41-43).
60 See also UN General Assembly Resolution 3314, Annex (Definition of Aggression), Article 7.
61 Where the Occupying Power does not recognise the Statehood of the occupied State, any act of resistance
including by the displaced sovereign would fall under this category according to it.
30
79. In light of the above, Namibia concludes that the attack of 7 October 2023 by a nonState
armed group on Israel's territory did not constitute an act of aggression against
the territorial integrity of Israel that triggers a right to self-defence against that nonState
actor granting Israel a right to occupy the territory, in which that actor operates
and from which the threat originates. In other words, there is no legal basis on which
the hostilities of 7 October 2023 could be determined to have altered the status of
Israel's occupation of the Occupied Palestinian Territory from illegal to legal.
~✓
Dated at Windhoek, Namibia on this.2.£_day of {f2e,P/4t./2023.
31
Jl!iv1
.. .... .. ,~ .............. ..
Netumbo Nandi-Ndaitwah, MP
Deputy Prime Minister and
Minister of International
Relations and Cooperation
ON BEHALF OF THE
GOVERNMENT OF THE
REPUBLIC OF NAMIBIA