Arab League presents the case against the 'legality' of the State of Israel.

Presentation of the legal facts around the creation of the State of Israel in 1948.

https://www.jewishvoiceforlabour.org.uk/article/league-of-arab-states-presentation-to-the-icj-by-ralph-wilde/

In essence the argument is that the establishment of the State fo Israel had no legal basis, and was conducted in contravention of existing International Law at the time, and ever since.

 Short Excerpt:


My comment in addition to that is that Partition and Colonial Settlement has always been a weapon of the British Empire, from Northern Ireland to Israel, India, Pakistan, Bangladesh and the arbitrary borders drawn by the British over lands they had colonised, lines designed to ensure centuries long tension between communities, along religious identitarian lines, where one group was favoured and mother oppressed, to drive tensions amongst the populations in order to prevent those regions from developing healthy economies of their own independent nature. 

They knew exactly what they were doing and why. Israel exists not to protect the Jewish people from European Christian anti-Semitism and centuries of pogroms - Israel was inserted to prevent the Arab polities from going about their own independent development, because the British were and remain White Supremacists.

Dog in the manger, Churchill.

Text of Mr Ralph Wilde's presentation:

The PRESIDENT:  …I now give the floor to Mr Ralph Wilde. You have the floor, Sir.

Mr WILDE:

  1. Mr President, distinguished Members of the Court, it is a great honour and privilege to appear before you, and to represent the League of Arab States7

1. MORE THAN CENTURY-LONG DENIAL OF SELF-DETERMINATION OF, AND WAR AGAINST, THE PALESTINIAN PEOPLE, ON THE BASIS OF RACISM

  1. The Palestinian people have been denied the exercise of their legal right to self-determination through the more than century-long violent, colonial, racist effort to establish a nation State exclusively for the Jewish people in the land of Mandatory Palestine.
  2. When this began after the First World War, the Jewish population of that land was 11 per cent8. Forcibly implementing Zionism in this demographic context has necessarily involved the extermination, or forced displacement of, some of the non-Jewish Palestinian population; the exercise of domination over, and subjugation, dispossession and immiseration of, remaining non-Jewish Palestinians; the emigration to that land of Jewish people, regardless of any direct personal link; and the denial of Palestinian refugees the right to return. All operating through a racist distinction privileging Jewish people over non-Jewish Palestinian people.
  3. This has necessitated serious violations of all the fundamental, jus cogens and erga omnes norms of international law — the right of self-determination, the prohibitions on aggression, genocide, crimes against humanity, racial discrimination, apartheid and torture ⎯ and the core protections of international humanitarian law9.
  4. Today I will address, first, violations of international law arising out of the régime of racial domination — apartheid — perpetrated against the Palestinian people across the entire land of historic Palestine, and then, second, the existential illegality of Israel’s occupation of the Palestinian Gaza Strip and West Bank, including East Jerusalem, since 1967.
  5. As a necessary prerequisite, I must begin with the special right granted to the Palestinian people in the League Covenant.

2. PALESTINIAN SELF-DETERMINATION UNDER ARTICLE 22 OF THE LEAGUE OF NATIONS COVENTION

  1. The legal right of self-determination of the Palestinian people originates in the “sacred trust” obligations of Article 22 of the League Covenant, part of the Versailles Treaty. Palestine ⎯ an “A” class Mandate under British colonial rule ⎯ was, after the First World War, supposed to have its existence as an independent State “provisionally recognized”: a sui generis right of self-determination11. The United Kingdom and other members of the League Council attempted to bypass this, incorporating the 1917 Balfour Declaration commitment to establishing a national home for the Jewish people in Palestine into the instrument stipulating how the Mandate would operate12. However, the Council had no legal power to bypass the Covenant in this way. It acted ultra vires, and the relevant provisions were, legally, void13. There was and is no legal basis in that Mandate instrument for either a specifically Jewish State in Palestine, or the United Kingdom’s failure to discharge the “sacred trust” obligation to implement Palestinian self-determination.

3. SELF-DETERMINATION IN INTERNATIONAL LAW AFTER THE SECONDWORLDWAR —AN ADDITIONAL RIGHT

  1. After the Second World War, a self-determination right applicable to colonial peoples generally crystallized in international law.
  2. For the Palestinian people, this essentially corresponded to, and supplemented, the pre-existing Covenant right, regarding the same, single territory. The 1947 proposal to partition Palestine was contrary to this; the Arab rejection an affirmation of the legal status quo.
  3. In 1948, then, Palestine was, legally, a single territory with a single population enjoying a right of self-determination on a unitary basis.

4. NAKBA IN 1948 — VIOLATION OF SELF-DETERMINATION AND CREATION OF A RÉGIME INVOLVING AN ONGOING VIOLATION OF THIS RIGHT, AS WELL AS RACIAL DISCRIMINATION AND APARTHEID AND A DENIAL OF THE RIGHT TO RETURN

  1. Despite this, a State of Israel, specifically for Jewish people, was proclaimed in 1948 by those controlling 78 per cent — more than three quarters — of Palestine, accompanied by the forced displacement of a significant number of the non-Jewish Palestinian population — the Nakba, catastrophe14. This illegal secession was an egregious violation of Palestinian self-determination. Israel’s statehood was recognized, and Israel admitted as a United Nations Member, despite this illegality. Israel is not the legal continuation or successor of the Mandate.
  2. This violation of Palestinian self-determination is ongoing, and unresolved. Two key elements are:
  3. First, Palestinian people not displaced from the land proclaimed to be of Israel in 1948, and their descendants, have been forced to live as citizens— presently they constitute 17.2 per cent — of a State conceived to be of and for another racial group, under the domination of that group, necessarily treated as second class, because of their race15.
  4. Second, Palestinian people displaced from that land, and their descendants, cannot return.
  5. These are serious breaches of the right of self-determination, the prohibitions of racial discrimination and apartheid, and the right of return. They must end, immediately.

5. 1967 ISRAELI CAPTURE OF THE PALESTINIAN GAZA STRIP AND WEST BANK (INCLUDING EAST JERUSALEM)

  1. As if this ongoing Nakba was not catastrophic enough, in 1967 Israel captured the remaining 22 per cent of historic Palestine — the Gaza Strip and West Bank, including East Jerusalem — the Naksa16. It has maintained that use of force to remain in control for the 57-year period since.

6. ILLEGAL RACIAL DOMINATION — APARTHEID — FROM THE JORDAN RIVER TO THE MEDITERRANEAN SEA

  1. For more than half a century, then, a State defined to be of and for Jewish people exclusively has governed the entire land of historic Palestine and the Palestinian people there. And the régime of racial domination — apartheid — and denying return, has been extended throughout. In the case of Palestinians living in the occupied territory, this has involved the same serious violations of international law, supplemented by serious violations of norms applicable in occupied territory17.
  2. Indeed, these people are subject to an even more extreme form of racist domination, as they are not even citizens of the State exercising authority over them. Even in East Jerusalem, which Israel has purported to annex, the majority non-Jewish Palestinian residents do not have citizenship, whereas Jewish residents, including illegal settlers, are citizens.
  3. Just as in territorial Israel, in occupied territory, these serious violations concerning how Israel exercises authority over the Palestinian people must end immediately.
  4. However, here, a more fundamental matter must also be addressed. The illegality of the exercise of authority itself. 

7. THE GAZA STRIP AND WEST BANK AS PALESTINIAN TERRITORY, WITH THE CONSEQUENCE THAT ISRAEL’S PURPORTED ANNEXATION, AND ATTEMPTED COLONIZATION, ARE ILLEGAL

  1. The enduring Palestinian right of self-determination means that the Palestinian people, and the State of Palestine, not Israel, are sovereign over the territory Israel captured in 196718. For Israel, the land is extraterritorial, and, given what I said about the Mandate, territory over which it has no legal sovereign entitlement19.
  2. Despite this, Israel has purported to annex East Jerusalem and taken various actions there and in the rest of the West Bank constituting de jure and de facto purported annexation, including implanting settlements. It is Israeli policy that Israel should be not only the exclusive authority over the entire land between the river and the sea, but also the exclusive sovereign authority there.
  3. This constitutes a complete repudiation of Palestinian self-determination as a legal right, since it empties the right entirely of any territorial content20.
  4. Actualizing this through de facto and de jure purported annexation is, first, a serious violation of Palestinian self-determination and, second, because it is enabled through the use of force, a violation of the prohibition on the purported acquisition of territory through the use of force in the law on the use of force, and so an aggression21. Serious violations of further areas of law regulating the conduct of the occupation are also being perpetrated, notably the prohibitions on implanting settlements and altering, unless absolutely prevented, the legal, political, social and religious status quo22.
  5. The occupation is, therefore, existentially illegal because of its use to actualize purported annexation. To end this serious illegality, it must be terminated: Israel must renounce all sovereignty claims and all settlements must be removed. Immediately.
  6. However, this is not the only basis on which the occupation’s existential legality must be addressed.
  7. We need to delve deeper into both the law of self-determination and the law on the use of force.

8. SELF-DETERMINATION AS A RIGHT TO BE SELF-GOVERNING, REQUIRING THE OCCUPATION TO END IMMEDIATELY23

  1. Beginning with self-determination: this right, when applied to the Palestinian people in the territory Israel captured in 1967, is a right to be entirely self-governing, free from Israeli domination. 29. Consequently, the Palestinian people have a legal right to the immediate end of the occupation. And Israel has a co-relative legal duty to immediately terminate the occupation.
  2. This right exists and operates simply and exclusively because the Palestinian people are entitled to it. It does not depend on others agreeing to its realization. It is a right.
  3. It is a repudiation of “trusteeship”, whereby colonial peoples were ostensibly to be granted freedom only if and when they were deemed “ready” because of their stage of “development” determined by the racist standard of civilization24. The anti-colonial self-determination rule replaced this with a right based on the automatic, immediate entitlement of all people to freedom, without preconditions. In the words of General Assembly resolution 1514, “inadequacy of . . . preparedness should never serve as a pretext for delaying independence”25.
  4. Some suggest that the Palestinian people were offered, and rejected, deals that could have ended the occupation. And, therefore, Israel can maintain it pending a settlement. Even assuming, arguendo, the veracity of this account, the “deals” involved a further loss of the sovereign territory of the Palestinian people.
  5. Israel cannot lawfully demand concessions on Palestinian rights as the price for ending its impediment to Palestinian freedom. This would mean Israel using force to coerce the Palestinian people to give up some of their peremptory legal rights: illegal in the law on the use of force and, necessarily, voiding the relevant terms of any agreement reached. The Palestinian people are legally entitled to reject a further loss of land over which they have an exclusive, legal, peremptory right. Any such rejection makes no difference to Israel’s immediate legal obligation to end the occupation.

9. THE OCCUPATION AS AN ILLEGAL USE OF FORCE IN THE JUS AD BELLUM AS A GENERAL MATTER (BEYOND THE LINK TO PURPORTED ANNEXATION

  1. Turning to the law on the use of force: Israel’s control over the Palestinian territory since 1967, as a military occupation, is an ongoing use of force. As such, its existential legality is determined by the law on the use of force, as a general matter, beyond the specific issue of annexation.
  2. Israel captured the Gaza Strip and West Bank from Egypt and Jordan in the war it launched against them and Syria. It claimed to be acting in self-defence, anticipating a non-immediately imminent attack. The war was over after six days. Peace treaties between Israel and Egypt and Jordan were subsequently adopted27.
  3. Despite this, Israel maintained control of the territory — continuing the use of force enabling its capture.
  4. Israel’s 1967 war was illegal in the jus ad bellum — even assuming, arguendo, its claim of a feared attack, States cannot lawfully use force in non-immediately imminent anticipatory self-defence.
  5. Alternatively, assuming ⎯ again arguendo ⎯ that the war was lawful, the justification ended after six days. However, the jus ad bellum requirements continued to apply to the occupation as itself a continuing use of force. In 1967, with self-determination well established in international law, States could not lawfully use force to retain control over a self-determination unit captured in war, unless the legal test justifying the initial use of force also justified, on the same basis, the use of force in retaining control. Moreover, this justification would need to continue, not only in the immediate aftermath, but for more than half a century. Manifestly, this legal test has not been met28.
  6. Israel’s exercise of control over the Gaza Strip and West Bank through the use of force has been illegal in the jus ad bellum since the capture of the territory, or, at least, very soon afterwards.
  7. The occupation is, therefore, again existentially illegal in the law on the use of force — an aggression — this time, as a general matter, beyond illegality specific to annexation. To terminate this serious violation, the occupation must, likewise, end immediately.

10. ILLEGAL FORCE DOES NOT BECOME LAWFUL IN RESPONSE TO RESISTANCE TO IT29

  1. What of Israel’s current military action in Gaza? This is not a war that began in October 2023. It is a drastic scaling-up of the force exercised there, and in the West Bank, on a continual basis, since 1967. A justification for a new phase in an ongoing illegal use of force cannot be constructed solely out of the consequences of violent resistance to that illegal use of force. Otherwise, an illegal use of force would be rendered lawful because those subject to it violently resisted — circular logic, with a perverse outcome.

11. ISRAEL CANNOT LAWFULLY USE FORCE TO CONTROL THE PALESTINIAN TERRITORY FOR SECURITY PURPOSES/PENDING A PEACE AGREEMENT30

  1. More generally, Israel cannot lawfully use force to control the Palestinian territory for security purposes pending an agreement providing security guarantees. States can only lawfully use force outside their borders in extremely narrow circumstances. Beyond that, they must address security concerns non-forcibly.
  2. The United States of America, the United Kingdom and Zambia suggested here that there is a sui generis applicable legal framework, an Israeli-Palestinian lex specialis. This somehow supersedes the rules of international law determining whether the occupation is existentially lawful. Instead, we have a new rule, justifying the occupation until there is a peace agreement meeting Israeli security needs. This is the law as these States would like it to be, not the law as it is. It has no basis in resolution 242, Oslo or any other resolutions or agreements31. Actually, you are being invited to do away with the very operation of some of the fundamental, peremptory rules of international law itself. As a result, the matters these rules conceive as rights vested in the Palestinian people would be realized only if agreement is reached, and only on the basis of such agreement. At best, if there is an agreement, this means one that need not be compatible with Palestinian peremptory legal rights, determined only by the acute power imbalance in Israel’s favour32. At worst, if there is no agreement, this means that the indefinite continuation of Israeli rule over the Palestinian people in the occupied Palestinian territories, on the basis of racist supremacy and a claim to sovereignty, would be lawful33. This is an affront to the international rule of law, to the United Nations Charter imperative to settle disputes in conformity with international law, and to your judicial function as guardians of the international legal system34.
  3. A final potential basis sometimes invoked to justify continuing the occupation should be addressed. Occupation and human rights law — applicable to illegal and lawful occupations alike — oblige Israel to address security threats in occupied territory. However, they only regulate the conduct of an occupation when it exists. They do not also provide a legal basis for that existence itself. Existential legality is determined by the law of self-determination and the jus ad bellum only. There is no “back door” legal basis for Israel to maintain the occupation through the imperatives of occupation and human rights law35.

12. EXISTENTIAL ILLEGALITY OF ISRAEL’S OCCUPATION OF THE PALESTINIAN GAZA STRIP AND WEST BANK, INCLUDING EAST JERUSALEM

  1. In sum: the occupation of the Palestinian Gaza Strip and West Bank, including East Jerusalem, is existentially illegal on two mutually reinforcing bases.
  2. First, the law on the use of force. Here, the occupation is illegal both as a use of force without valid justification, and because it is enabling an illegal purported annexation. As such, it is an aggression.
  3. Second, the law of self-determination. Here, it is illegal again because of the association with illegal purported annexation, and also, more generally, because it is, quite simply, an exercise of authority over the Palestinian people that, by its very nature, violates their right to freedom.
  4. This multifaceted existential illegality — involving serious violations of peremptory norms — has two key consequences.
  5. First: the occupation must end: Israel must renounce its claim to sovereignty over the Palestinian territory; all settlers must be removed. Immediately. This is required to end the illegality, to discharge the positive obligation to enable immediate Palestinian self-administration, and because Israel lacks any legal entitlement to exercise authority.
  6. Second, in the absence of the occupation ending, necessarily, everything Israel does in the Palestinian territory lacks a valid international legal basis and is, therefore (subject to the Namibia exception), invalid, not only those things violating the law regulating the conduct of the occupation36. Those norms entitle and require Israel to do certain things. But this does not alter the more fundamental position, from the law on the use of force and self-determination, that Israel lacks any valid authority to do anything, and whatever it does is illegal, even if compliant with or pursuant to the conduct-regulatory rules.

13. THE WORDS OF REFAAT ALAREER

  1. I will close by quoting Palestinian academic and poet Refaat Alareer, from his final poem posted 36 days before he was killed by Israel in Gaza on 6 December 2023:

If I must die, you must live to tell my story […]

If I must die
let it bring hope, let it be a story.37

Thank you for your attention.

The PRESIDENT: I thank the delegation of the League of Arab States for its presentation.

Footnotes

7 This statement draws on the following two documents submitted in the present case: Written Statement by the League of Arab States, 20 July 2023, and Written Comments on the written statements made by States and organizations by the League of Arab States, 25 Oct. 2023, both obtainable from https://www.icj-cij.org/case/186/written-proceedings.

8 11.06 per cent to be exact. Government of the United Kingdom, Report of J. B. Barron, Superintendent of Census, Palestine: Report and General Abstracts of the Census of 1922, 10 Feb. 1923, p. 5, table I, available at https://content.ecf.org.il/files/M00785_1922PalestineCensusEnglish.pdf.

9 See Written Statement of the League of Arab States, Sec. 8, pp. 16-19, Part 3 generally, pp. 19-38, especially Sec. 16 therein, pp. 37-38.

10 See generally Written Statement of the League of Arab States, p. 8, para. 13 (1); Written Comments of the League of Arab States, Sec. 6c, pp. 27-32; and Ralph Wilde, “Tears of the Olive Trees: Mandatory Palestine, the UK, and accountability for colonialism in international law”, Journal of the History of International Law (2022), available at https://brill.com/view/journals/jhil/aop/article-10.1163-15718050-12340216/article-10.1163-15718050-12340216.xml? language=en (hereinafter “Wilde, Tears of Olive Trees”).

11 Treaty of Peace Between the Allied and Associated Powers and Germany, signed in Versailles, 28 June 1919, entry into force 10 January 1920, (1919) UKTS 4 (Cmd. 153), Part I, League Covenant 1919: Covenant of the League of Nations, 28 Apr. 1919, available at: https://www.ungeneva.org/en/about/league-of-nations/covenant.

12 Mandate for Palestine, text approved by the League of Nations Council 19th Session, 13th Meeting, 24 July 1922, UN Library reference C.529. M.314. 1922. VI., available at: https://www.un.org/unispal/document/auto-insert- 201057/, entry into force on 29 Sept. 1923, Minutes of the Meeting of the League of Nations Council held at Geneva on 29 September 1923, UN Library reference C.L.101.1923.VI., available at https://www.un.org/unispal/document/auto- insert-204395/.

13 Wilde, Tears of Olive Trees, pp. 402-403.

14 State of Palestine, Palestinian Liberation Organization Negotiation Affairs Department, Borders, https://www.nad.ps/en/our-position/borders#:~:text=During%20the%20June%201967%20war,Palestinian%20half% 20of%20the%20city, and United Nations, The Question of Palestine, History, https://www.un.org/unispal/history/.

15 Nasreen Haddad Haj-Yahya, Muhammed Khalaily, Arik Rudnitzky and Ben Fargeon, Statistical Report on Arab Society in Israel 2021, The Israel Democracy Institute, 17 Mar. 2022, available at https://en.idi.org.il/articles/38540.

16State of Palestine, Palestinian Liberation Organization Negotiation Affairs Department, Borders, https://www.nad.ps/en/our-position/borders#:~:text=During%20the%20June%201967%20war,Palestinian%20half%20 of%20the%20city. See also Statement of HE Mr Mahmoud Abbas, President of the State of Palestine, Chairman of the Executive Committee of the Palestine Liberation Organization and President of the Palestinian National Authority before the United Nations General Assembly’s Sixty-Sixth Session, New York, 23 Sept. 2011, https://gadebate.un.org/sites/ default/files/gastatements/66/ps_en_25.pdf.

17 Written Statement of the League of Arab States, Sec. 13, pp. 26-33.

18 Ralph Wilde, “Using the master’s tools to dismantle the master’s house: international law and Palestinian liberation”, Palestine Yearbook of International Law, Vol. 22 3 (2021) (hereinafter “Wilde, Master’s Tools”), pp. 35-39.

19 Written Comments of the League of Arab States, Sec. 6, pp. 23-32; Wilde, Master’s Tools, pp. 40-41.

20 Written Comments of the League of Arab States, Sec. 6, pp. 23-32, esp. Secs. 6a and 6b, pp. 23-26.

21 Ibid., Sec. 11 (p. 21-3); Wilde, Master’s Tools, p. 40.

22 Written Statement of the League of Arab States, Sec. 13, pp. 26-33.

23 See generally Written Statement of the League of Arab States, Sec. 4.c., pp. 9-10, Sec. 10, pp. 20-21, Sec. 11.d., pp. 22-23; Wilde, Master’s Tools, Secs. IV-VIII, pp. 35-73).

24 See Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (OUP 2008), Chap. 8.

25 UNGA res. 1514 (XV), 14 Dec. 1960, UN doc. A/RES/1514 (XV), para. 3.

26 See Written Statement of the League of Arab States, Sec. 12, pp. 23-26; Written Comments of the League of Arab States, Sec. 7, pp. 32-33; and Wilde, Master’s Tools, Section III, pp. 21-35.

27 Treaty of Peace between Egypt and Israel, 26 March 1979, UNTS, Vol. 1136, p. 100; Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, 26 October 1994, UNTS, Vol. 2042, p. 351.

28 Written Statement of the League of Arab States, p. 25, paras. 70-71; Wilde, Master’s Tools, pp. 25-26.

29 Ralph Wilde, “Israel’s War in Gaza is Not a Valid Act of Self-defence in International Law”, Opinio Juris, 9 Nov. 2023, https://opiniojuris.org/2023/11/09/israels-war-in-gaza-is-not-a-valid-act-of-self-defence-in-international- law/.

30 See Written Statement of the League of Arab States, p. 24, paras. 63-66, p. 25, paras. 72-73; Written Comments of the League of Arab States, Sec. 3, pp. 5-17; Wilde, Master’s Tools, pp. 27-31.

31 See Written Statement of the League of Arab States, Sec. 12.b, p. 24; and also Written Comments of the League of Arab States, Sec. 3, pp. 5-17.

32 See also Written Comments of the League of Arab States, p. 16, para. 54. 33 Ibid.

34 Ibid., Sec. 3.b, pp. 6-8, paras. 54-55, p. 17 and pp. 19-20, paras. 62-63.

35 Written Statement of the League of Arab States, Sec. 15.b, pp. 34-36. 36 Ibid., Sec. 15, pp. 34-37, and Sec. 17, pp. 38-41.



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