Front Burner - Israel’s occupation scrutinized at the Hague

Episode Date: February 29, 2024

This week, the International Court of Justice wrapped up a set of historic hearings into the legality of Israel’s decades-long occupation of the West Bank, East Jerusalem, and Gaza.The proceedings were requested by the UN General Assembly back in 2022, and so the timing of them — almost five months into Israel’s bloody war with Hamas — is in essence coincidental. But many believe that finding a resolution to this question is fundamental to securing a lasting peace between Israel and the Palestinians.While many are familiar with the term “occupation” in relation to this conflict, it’s another thing to understand the specific legal meaning of that term, or its practical implications. Or why Israel argues that this term doesn’t actually apply to them.Today we’re going to explain all of that, and then look at how these questions played out at these recent hearings at the UN’s top court. We’re joined by Nahlah Ayed, host of the CBC Radio show Ideas. Among other things, Nahlah was previously a foreign correspondent based in the Middle East, and she has covered other cases at the Hague, most recently one relating to the conflict in Gaza.For transcripts of Front Burner, please visit: https://www.cbc.ca/radio/frontburner/transcriptsTranscripts of each episode will be made available by the next workday.

Happy Holidays! I'm Frank Cappadocia, Dean of Continuous Professional Learning at Humber Polytechnic. I'd like you to set a goal to drive key learning for your people in 2025. I want you to connect with Humber CPL to design a custom training solution that accelerates your team's performance and engagement. Humber works with you to hone industry-specific upskilling, enhance your leadership, and drive results. Flexible learning delivery formats are tailored to your unique needs. Adapt, evolve, and excel. To learn more, go to humber.ca slash cpl. This is a CBC Podcast. Hi, I'm Jamie Poisson. In closing, honorable judges, the state of Palestine appeals to this court.

Last week, as Riyad Mansour, the Palestinian ambassador to the UN, was finishing his speech at the International Court of Justice in The Hague, he began to choke up. To guide us towards a future in which

Palestinian children are treated as children, not as demographic threat, in which the identity of the group to which we belong does not diminish the human rights to which we are all entitled. Mansour was speaking as part of a Palestinian delegation in a historic set of hearings on the legality of Israel's occupation of the West Bank, Gaza, and East Jerusalem. Gaza, and East Jerusalem. Many think the resolution to this question is fundamental to securing a lasting peace between Israel and the Palestinians, which is, of course, pressing, given the current Israel-Hamas war, which has killed nearly 30,000 Palestinians,

most of them women and children, according to Gaza's Ministry of Health, and which follows Hamas's October 7th attack in Israel, which killed close to 1,200 people, a majority of them also civilians, according to Israeli authorities. Most of us are familiar with the term occupation in relation to Israel and the Palestinian territories. But it's another thing to understand the specific legal meaning of that term or its practical implications or why Israel argues that this term doesn't even apply to them. So today we're going to walk through all of that and then look at how all of these questions played out at these recent hearings in The Hague. For that, I'm joined by Nala Ayyad. She's the host of Ideas on CBC Radio and, among other things, a former foreign correspondent previously based in the Middle East. Nala has also covered other cases at The Hague, including the most recent one relating to the conflict in Gaza.

Nella, thank you so much for being here today. It's great to be here. Thank you. So what exactly is being deliberated in these hearings at the ICJ? To answer that question, you have to go back to December 2022, when the UN General Assembly passed a resolution to ask the World's Court for a legal opinion on Israel's ongoing occupation of the territories it seized in 1967. 87 votes in favor of requesting the International Court of Justice's opinion on Israel's occupation of the Palestinian territories. We trust that regardless of your vote today, if you believe in international law and peace,

you will uphold the opinion of the International Court of Justice. So there were two specific questions. One was, what are the legal consequences that arise from Israel's, quote, prolonged occupation, settlement and annexation of those territories? And two, how Israel's policies and practices, quote, affect the legal status of the occupation? So in other words, it's effectively asking for an opinion on the legality of the 57, almost 57 year occupation under international law. of the almost 57-year occupation under international law.

The voted resolution asks the ICJ for an advisory opinion on the legal consequences of Israel's occupation, settlement and annexation, including measures aimed at altering the demographic, composition, character and status of the Holy City of Jerusalem and from its adoption of related discriminatory legislation and measures. Okay, so just to make sure I understand that, is it fair for me to say that the first question is asking, is the occupation itself legal? Because you can technically have a legal occupation. And the second question is, are the policies of the occupation legal?

Are the policies of the occupation legal? More or less. I mean, it's interesting to listen to the actual testimony and to see where the arguments go. And most of the presentations have tackled the question whether this occupation is still legal. Israel has occupied the Palestinian territory, committing violations that are inherent to its presence in our land and colonial objective. You were actually in The Hague last month for a different case at the ICJ that our audience is probably familiar with. And in that case, the court ruled that it is plausible that Israel's actions against Palestinians in its war in Gaza could amount to genocide. Israel had wanted what it called the absurd genocide case dismissed, while South Africa's lawyers demanded the court effectively order a ceasefire in Gaza. Instead, the court said Israel must take actions to improve the humanitarian situation and to prevent acts of genocide.

The court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the aforementioned acts. So just to clarify, this is a completely separate case that was already, as you mentioned, in the works before this war started. And the timing of these hearings, fair to say, is coincidental. It's exactly right, Jamie. It's a totally separate case from the one you're mentioning, which was brought forward by South Africa against Israel. But I do want to just say, it's an opportunity to say that it's important to point out that even though this timing of these two cases is coincidental,

obviously these hearings are inextricably linked. And coming together, they really, or around the same time, they really highlight the urgent need for resolution of this conflict. And the fact that they're going to be considered by the court at the same time will undoubtedly have an effect on the outcome of both cases. And the court will have to look probably at this holistically. And beyond that, the current conflict that's going on in Gaza has revived talk about the two-state solution. And that cannot be solved or it cannot be arrived at without working out the status of the occupation. So really, those cases are quite linked. Before we dive more into the arguments that have been presented at the hearings, I think it's probably important that we understand some basic context here.

Most importantly, what occupation actually means. And to understand that, we need to go back to 1967 and the Six-Day War. And in brief terms, I know that is a hard thing to do, but what happened? Well, as you say, we don't have time to go into all the details of what happened in 1967, but it was a very brief conflict between Israel on the one hand and its Arab neighbors on the other. The key to the unconditional ceasefire lay in the joint and parallel action of the United States and the Soviet Union. The news flashes clarified the situation. It soon became apparent that the Middle East power patterns of a decade were being changed in a matter of hours. And suffice to say that when the war was over,

Israel had occupied the Sinai Peninsula, which has its own separate story, and we won't get into that, but also occupied the West Bank, Gaza, and East Jerusalem. And since then, those three areas have been considered by the international community as occupied territories. Hero today of the Jewish peoples,

General Moshe Dayan, defense minister and architect of the swiftest, most overwhelming victory of all time. And the three areas of West Bank, Gaza, East Jerusalem, what did they represent to the Palestinians? Well, you have to remember that for many Palestinians who lived there in those places, they were simply home. And 400,000 Palestinians during that conflict were displaced. The war on the deserts of the Sinai involved far more than governmental concern. Blood ties, national origins, and deep-seated sympathies made themselves felt virtually to the doorstep of the White House. And many of them left completely. Altogether, they went to other One million refugees! We want our land! We want our land! We want our land!

And many of them left completely. Altogether, they went to other places, to Jordan and other countries, while others stayed and had to live under military occupation for the many decades ahead. But these areas would also become the territories where Palestinians had hoped to form their eventual independent state. And when we're talking about the concept of occupation, occupation has a specific definition within international law. And in basic terms, what is that definition?

It's a harder question than you might think. But very simply, let me actually just read you from an article, Article 42 of the 1907 Hague Regulations, which states that, quote, a territory is considered occupied when it's actually placed under the authority of the hostile army. So let's put it more simply, and in the words actually of the International Committee of the Red Cross, it says that under international humanitarian law, there is occupation, quote, when a state exercises an unconsented to effective control over a territory on which it has no sovereign title. And one last thing I should mention that there are laws that govern occupation

that help narrow down that definition, and they apply to any territory occupied during international hostilities as well as situations where an occupation happens and meets no armed resistance. Okay and and as we were talking about earlier that there are essentially two questions the court is dealing with under international humanitarian human rights law occupying powers also have certain obligations to the people whose territory they are occupying. And what are some of those obligations? Yeah, they're spelled out in a number of international documents, legal documents, including what I'm sure many people have heard of the Fourth Geneva Convention. And they include some really basic obligations for the occupying

power. For example, ensuring there's food and medical care for the population that's under occupation. But there are other matters that are regulated or, you know, that relate to what's permissible and what is not in terms of conduct on the ground of an occupier. So, for example, it says forcible transfers of population from and within the occupied territory is prohibited. Moving people who belong to the occupying power into the occupied area is also prohibited. Collective punishment is prohibited. Confiscation of private property. And one more key feature, Jamie, that's provided for as well is that occupation is supposed to be a temporary situation. It is not meant to go on indefinitely.

So as you mentioned earlier, there is broad agreement within the vast majority of the international community that Israel is militarily occupying the West Bank and Gaza and East Jerusalem, and that the international laws you were just talking about apply to that occupation. But it's important to note here, of course, that successive Israeli governments have disputed this. And why? What do they say? There are two ways to answer this question, Jamie.

One is that Israeli leaders have advanced the argument that there can be no occupation since there was no sovereign state, no sovereign Palestinian state, when Israel captured those territories. And further, that Egypt and Jordan's control of those territories at that time in 1967 was not accepted by the international community as legitimate. So in Israel's opinion, the territories were not under the sovereignty of any state and so could not really be seen or ruled as occupied territory under their control.

Another answer, a simpler answer maybe found in the words of the Israeli Prime Minister, Benjamin Netanyahu, who had just become Israel's Prime Minister again when the UN General Assembly decided to go ahead with asking the court for its opinion. And in the reaction, he said, quote, the Jewish people are not occupiers on their own land, nor occupiers in our eternal capital, Jerusalem, and no UN resolution can warp that historical truth, close quote. It is important to note, as you said, Jamie, that the United Nations and several international organizations like Amnesty International, like Human Rights

Watch, and the ICRC, the Red Cross, all of whom consider the territories as occupied and Israel as the occupying power. Right. So essentially Israel, or in this case Netanyahu, is making the argument that they can't occupy land that belongs to them. Correct. Is there any distinctions being made by Israel between the West Bank and Gaza? Yeah. Well, you might remember in 2005 when Ariel Sharon was prime minister, Israel implemented what it called a unilateral disengagement from Gaza. Gaza cannot be held onto forever.

Over one million Palestinians live there. They live in incredibly cramped refugee camps, in poverty and squalor, in hotbeds of ever-increasing hatred, with no hope whatsoever on the horizon. It is out of strength rather than weakness that we are taking this step. So that meant they pulled out all the settlements.

The event marked the official end of Israel's 38-year-old settlement venture in Gaza. The government has ordered the Strip's 8,000 Israeli residents who live in 21 settlements to leave their homes by Wednesday. Thousands have refused to comply. They pulled out thousands of soldiers who had been based in Gaza, and there was a complete withdrawal from Gaza, and then Gaza itself was blockaded and sequestered from the rest of the region. The IDF will redeploy on defensive lines behind the security fence. Now the Palestinians bear the burden of proof. They must fight the terror organizations, dismantle its infrastructures,

and show sincere intentions of peace in order to sit with us at the negotiating table. And so Israel says that it cannot be an occupying power in Gaza if it had walked away from it. However, the counter-argument is that Israel continued to have control over Gaza, the movement of people, the movement of aid and supplies, Gaza's land, air and sea, entry and exit points, except for its border with Egypt, and that it maintained and exercised that control even before this current conflict flared up. So Israel's position on this is not one, again, that is widely supported, and the UN and international organizations still see Gaza as occupied. And so now I just want to come back to the present and these hearings that have happened in The Hague over the past week and a bit. And let's start with Riyad al-Maliki, the foreign affairs minister of the Palestinian Authority. In part of his speech, he presented five maps.

And what was the point that he was making through these maps? What he was trying to do, Jamie, is to visually represent the stark changes that have brought Palestinians to the point where an independent state is no longer viable. The first one is historic Palestine. This is the territory over which the Palestinian people should have been able to exercise their right to self-determination. Initially, actually, he showed four maps with the area that could potentially form a Palestinian state depicted in green and getting progressively smaller as the years went by. And how from 1967, Israel, in his words, started, quote, colonizing and annexing more and more land. With the aim of making its occupation irreversible, it left us with a collection of disconnected pan-Pustans, preventing the independence of our state. He underlines this point by showing one last map, the fifth map, which was carried by Israeli Prime Minister Benjamin Netanyahu at the UN General Assembly meeting last September.

And that map, Malky points out, showed no Palestinian state, nothing at all. This shows you what the prolonged, continuous Israeli occupation of Palestine is intended to accomplish, the complete disappearance of Palestine and the destruction of the Palestinian people. So that's what he was trying to demonstrate. And did he talk about how Israeli settlements have contributed to that? has been condemned internationally as an obstacle to peace negotiations precisely for this reason, because it is reducing this area that could possibly potentially be declared as part of a Palestinian state. But they do continue. And apparently in 2023, according to Palestinian lawyers at The Hague, that year saw the largest ever expansion of settlements in the territory by Israeli authorities.

Okay. And I just want to note here that successive Israeli governments have argued that the settlements in the territory by Israeli authorities. Okay. And I just want to note here that successive Israeli governments have argued that the settlements in the West Bank, they are legal. They state that Jewish communities have existed there for thousands of years and that they can move their citizens there because they say the land was legitimately acquired. Okay. So another argument that I want to talk about with you that was being made in court was one that was being made by Paul Reichler, one of the lawyers representing the Palestinians at the ICJ. And he said, quote, occupation can only be a temporary state of affairs, as you've mentioned. And he spent a lot of time laying out a case arguing that what is happening is not temporary. And he argued that the

objective of the occupation is, quote, permanent acquisition of the maximum amount of Palestinian territory with the minimum number of Palestinians in it. Tell me more about the argument that he was making. Yeah, I would say that the crux of his argument was that he stated, you know, Israel's intention to make the occupation permanent is best demonstrated by Israel's own actions. So Reichler says, you know, he cites, again, the establishment of these Israeli settlements and the hundreds of thousands of settlers in the West Bank and East Jerusalem. And he says that that has altered, fundamentally altered the demographic makeup of those areas to create effectively a Jewish majority. Israel has been equally clear

in declaring its permanence in the West Bank in over 270 ever-expanding settlements spread throughout this territory in what can only be described as a vast colonial enterprise. And he also cited just the open, repeated claims of sovereignty over those areas by Israeli officials. So official statements and documents that he says, quote, openly declare Israel's intention to incorporate all of the occupied territories east of the Green Line into the state of Israel as a permanent part of a single Jewish state extending from the Jordan River to the Mediterranean Sea. And one example of that, of course, we've mentioned already, which was Netanyahu's depiction of Israel that we mentioned earlier, in which there's no sign

of anything called Palestinian territories. And his conclusion is that all of this was detrimental to the possibility of a two-state solution and that the only hope for that solution is for the occupation to be declared illegal and that it should be terminated, that quote, completely, unconditionally, and immediately. Happy Holidays. I'm Frank Cappadocia, Happy holidays. I'm Frank Cappadocia,

Dean of Continuous Professional Learning at Humber Polytechnic. I'd like you to set a goal to drive key learning for your people in 2025. I want you to connect with Humber CPL to design a custom training solution that accelerates your team's performance and engagement. Humber works with you to hone industry-specific upskilling,

enhance your leadership, and drive results. Flexible learning delivery formats are tailored to your unique needs. Adapt, evolve, and excel. To learn more, go to humber.ca slash cpl. Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income? That's not a typo, 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. So in addition to the legal obligation that the occupation is supposed to be temporary, like we've been talking about,

what other arguments were Palestinian representatives making about Israel not fulfilling those obligations? As we mentioned, they talked about the settlements, which represent a breach, as I mentioned to you earlier, of the obligation not to move citizens of the occupying power into an occupied area. They talked about collective punishment and the onslaught against Gaza after Hamas's October 7th attacks being the starkest example in recent years. They talked about evictions, people evicted from their homes or having their homes demolished or having their residential permits in Jerusalem revoked. So those are some of the examples the Palestinians cited that contravened the explicit obligations of an occupying power, as we discussed earlier. of an occupying power, as we discussed earlier. But from the start, Jamie, the Palestinian representatives painted a really stark picture of life for Palestinians under occupation for the nearly 57 years that it has been in place.

The unequal access to everything from roads to water, the system of checkpoints and roadblocks that make it really hard for Palestinians to get to work or to health care or to each other even. One of the lawyers, Namira Nigam, said, They are confined in space and rights. They travel on segregated roads, a phenomena that even apartheid South Africa never knew. The rights that are afforded to citizens of Israel and denied to Palestinians just minutes down the road. What lawyers described, Jamie, was what they called a systematic policies constituting a pattern of racial discrimination that they described as, quote,

apartheid. The thousands upon thousands who were imprisoned without due process in a system that one of the lawyers said had a conviction rate for Palestinians that's 99%. So as a result, the presentations, as I mentioned earlier, repeatedly called on the court to declare this occupation illegal and call for its immediate end. You mentioned collective punishment of civilians in Gaza. I just want to say Prime Minister Netanyahu has repeatedly refuted this. He argues that they are pursuing legitimate military targets and that Hamas is operating out of densely populated areas and therefore that civilians are sometimes, quote unquote, collateral damage. We're deliberately doing everything in our power to target the terrorists

and the civilians, as happens in every legitimate war, are sometimes what are called collateral damage. That's a laundered way of saying unintended casualties. So let's talk now about what Israel argued in these hearings at the ICJ. I know that Israel didn't actually speak at the hearings, but they did submit a written statement. And tell me more about what it said. Yeah, Israel had a brief statement, as you say, it was written, a written submission in which it described the request for the advisory opinion as a biased one, that it's a, quote, abuse of international law and the judicial process. The statement really focuses on what's missing from all of this. So it says the questions are very one-sided and overlook the thousands of dead and

wounded Israelis who have been killed by, quote, Palestinian acts of hatred and terrorism, and that such acts still threaten Israel's security. It also says that the questions fail to recognize Israel's right and duty to protect its citizens and the need for any resolution of the conflict to effectively address Israel's legitimate security concerns. Israel said the discussion in The Hague is part of the Palestinian attempt to dictate the results of the political settlement without negotiations. It says it'll continue to fight this attempt and its government and the Knesset are united in rejecting this wrong trend. There was also mention of Israel's, quote,

deep historical ties and own valid claims to the territory in question, and that those too had been left out of this conversation. And finally, the submission said that a decision by the court on this to engage on this matter would be, quote, harmful. So for the court to this to engage on this matter would be, quote, harmful. So for the court to safeguard its judicial integrity and the ongoing framework for a negotiated settlement, Israel said that it hoped the court would act accordingly. Essentially, is it fair for me to say that they were making an argument there that the court's involvement could interfere with

the ability to have peace negotiations. Precisely. It's interesting because listening to some of the other countries present at the hearing, they actually appear to be making the opposite argument, that the opposite is true, that because there are no negotiations, argument, that the opposite is true, that because there are no negotiations, because the two-state solution seems to have been effectively abandoned, that the court actually must weigh in here. Nella, what about the U.S.? They were one of the few countries to defend the Israeli position here, and what did they say on this? Yeah, I mean, because they are a strong supporter

of Israel, the State Department advisor, legal advisor, Richard Visek, he echoed some of those arguments we just discussed, Israel's arguments, cautioning against any ruling that would advise an immediate end of the occupation, and that any decision the court might make requires, quote, consideration for Israel's very real security needs. And he actually invoked the Hamas attacks of October 7th as an example when he advised the court to refrain from recommending an unconditional end of the occupation. Any movement towards Israel's withdrawal from the West Bank and Gaza requires consideration of Israel's very real security needs. We were all

reminded of those security needs on October 7, and they persist. Regrettably, those needs have been ignored by many of the participants in asserting how the court should consider the questions before it. So again, echoing Israel, he said that the questions submitted to the court seemed to be focused on the acts of just one party to this dispute, and that the best way to solve this conflict was through those negotiations, which haven't been happening, to lead to a two-state solution. The challenge for the court is how to provide its advice in a way that promotes the framework rather than disrupting its balance, potentially making the possibility of negotiations even more difficult. So again, he recommended that the court should, quote, carefully calibrate its advice accordingly. More than 50 countries addressed the judges in these hearings.

The vast majority of them supported the Palestinian position. But we should note, I think, Canada's position here. They didn't present at the hearings, but they did release a statement. Yeah. It was a really carefully worded submission, Jamie, that put the two-state solution kind of at the heart of Canada's position as well. I should note that back in December 22, when this was all being decided, Canada voted against referring these questions to the International Court of Justice. So the submission reflected that decision, and it suggested that the court should actually refuse to take on this case and to provide an advisory

opinion, and for two compelling reasons as far as Canada is concerned. One is that Israel had not provided its consent for the court to look into this matter. And second is that this issue has long been the purview of the Security Council, which again, echoing the Israeli and U.S. positions, has established a path for resolving the dispute through negotiations. And so Canada believes that direct dialogue between the parties is the best path to peace, and it says that the court and its involvement risks moving the parties further away from a just and lasting resolution to the conflict. Okay. So the hearings have now wrapped, they're over. And I know it's likely to take several months for the judges to come back

with a decision. But I'm wondering, Nala, ultimately, what the significance of a ruling here would be. Like even Riyad Mansour, the Palestinian UN ambassador who was presenting at the hearings, he choked up while talking about how all of these international laws have basically done nothing to protect Palestinian children. What does international law mean for Palestinian children in Gaza today? law mean for Palestinian children in Gaza today? It has protected neither them nor their child. It has not protected their families or communities. It has not protected their lives or limbs,

their hopes or homes. And so ultimately, I think the question I have here is what is the point of all of this? That's a really good question, Jamie. But those negotiations that have been mentioned as being the best way to solve this conflict, as you rightly pointed out, have been stalled for years. And the Security Council can't even agree on a ceasefire in Gaza because the U.S. vetoed it, as we saw again last week. So these hearings have given an opportunity for Palestinians and those who support them

and their position to air their arguments, no less at a time when there is intense focus around the world on this conflict. And they're appealing to a respected, internationally recognized body, which doesn't provide anyone with a veto, and whose opinion, even though it's not binding, could dramatically at least change the conversation. So one other thing I should say is that these hearings have shown just this very deep global divide on this question, a divide that's been there for quite some time,

but it's really been highlighted by this conflict in the last few months. That's largely between Western countries that are very supportive of Israel and the rest of these countries that the occupation is illegal, then perhaps that might shift things in this impasse. But in the short term and until that actually materializes, it could be months before the court comes back with an opinion. And for all the people on the ground who are affected by this conflict, it's really the status quo. Nella, thank you so much for this. This is such a complex and dense topic that you've tackled today.

And I just, I really want to thank you for making it so digestible. Thank you for having me on. All right, that is all for today. I'm Jamie Poisson. Thanks so much for listening. Talk to you tomorrow.