In February, Fiji refuted anti-Israel arguments at the ICJ (full text)

This Friday, the International Court of Justice is expected to rule on "Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem."

It is widely expected that the ICJ will rule that the settlements are illegal and give the UN ammunition to sanction Israel.

This is the culmination of the PLO's strategy to become a state for the purposes of international law. The entire reason the PLO has pretended to accede to international agreements is to give the pretense of statehood, when in fact the entire purpose of statehood for the PLO is not to build a state but to destroy one, and calling itself a state has allowed it to bring cases to the ICC and ICJ.  The ICJ is another international institution that the PLO has been hijacking.

The question before the court itself was biased in its very wording, almost forcing the decision to be against Israel. 

During oral arguments on this case in February, Fiji's UN Ambassador Ambassador Filipo Tarakinikini gave an argument on why the ICJ should not issue this ruling and how it ignores the context of the issues. That argument received very little attention, but it is a comprehensive response explaining why the case was biased and should never have been formulated the way it was.

Here is nearly all of his 25 minute speech.

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Fiji affirms the important role of this Court as the highest judicial organ of the United Nations in resolving disputes between States and assisting United Nations organs in their activities.

In so doing, the Court must promote the purposes and principles of the United Nations Charter. According to Article 1 of the United Nations Charter, one of the main purposes of the United Nations is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. Fiji strongly believes that the only way to achieve truly sustainable peace between Israel and the Palestinian people - indeed between any neighbours - is through mutual respect.

As reflected in our Written Statement, Fiji considers it essential to maintain and uphold the legal framework agreed between the parties and sanctioned by the Security Council to resolve the Israeli–Palestinian dispute. That framework is founded on the understanding that Jews and Arabs must coexist in a small piece of territory. This requires direct negotiations between the parties for an agreed outcome.

Mr President, Members of the Court, the General Assembly has requested the Court to answer certain questions that focus on the legal consequences of the policies and practices of only one party to this dispute.

In Fiji’s view, this Court has unfortunately been presented in these proceedings with a distinctly one-sided narrative. This fails to take account of the complexity of this dispute and misrepresents the legal, historical and political context.

In its Written Statement, Fiji has provided several reasons why the Court should exercise its judicial discretion not to render an advisory opinion on the questions that have been posed by the General Assembly:

(i) first, the request is a legal manoeuvre to circumvent the existing internationally sanctioned and legally binding framework for resolution of the Israel-Palestine dispute;

(ii) second, to give an opinion in this case “would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent”; and

(iii) third, due to the one-sided formulation of the questions posed in resolution 77/247, the Court does not have before it the accurate and reliable information that it would need to render an opinion on the questions posed.

Mr President, Members of the Court, in this oral presentation I will address the first and third of these issues.

THE PEACE PROCESS AND LEGALLY BINDING FRAMEWORK

I turn to the existing framework.

In these proceedings, the Court has been asked to render an advisory opinion that may well mean, in effect, the “immediate”, “unconditional” and “total” end to the occupation - that is, withdrawal of all Israeli military and civilians from the entirety of the West Bank, East Jerusalem and Gaza. This withdrawal must not only be complete, but it must also be unconditional - in other words, Israel may not impose or require any limitations or conditions. This unconditionality is supposedly necessary in order that the Palestinian people have a sovereign State on such territory, which they assert is the only way to achieve justice and therefore peace.

Fiji respectfully submits that this demand of a complete and unconditional withdrawal circumvents the peace process and the agreements that have been made in pursuit of that process.

Mr President, the fact is that, from 1993, Israel and Palestine entered into the series of agreements known collectively as the “Oslo Accords”. The parties expressed the intention to “put an end to decades of confrontation and to live in peaceful coexistence, mutual dignity and security, while recognizing their mutual legitimate and political rights”. To that end, they agreed on a wide range of interim measures, pending the achievement of a final agreement through permanent status negotiations.

Some of those interim measures include:

(a) The Palestinian Authority was established.

(b) Powers and responsibilities were transferred from the Israeli military government and its civil administration to the Palestinian Authority, while Israel continued to exercise powers and responsibilities not so transferred.

(c) Direct, free and general political elections were to be held by the Palestinians.

(d) The West Bank was divided into three areas: A, B and C. The Palestinians would obtain exclusive control over Area A; Area B would be under joint Israeli/Palestinian control; and Area C would be under exclusive Israeli control.

(e) Lastly, the parties would enter negotiations on the permanent status to resolve the remaining issues, which included “settlements”, “borders”, “Jerusalem” and “security”.

In addition, the Oslo Accords contain a specific dispute resolution mechanism, and do not permit either party unilaterally to commence or ask others to commence external legal proceedings.

Since 1993, an extensive set of arrangements has been put in place to operationalize the agreements.

In 2003, the General Assembly7 endorsed the Oslo Accords and the Security Council8 has “[e]ndorse[d] the Quartet Performance-based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict”. This Court itself confirmed the importance of the Oslo Accords and the Roadmap in the Wall Advisory Opinion in 20049.

According to the Roadmap,“a two state solution to the Israeli-Palestinian conflict will only be achieved through an end to violence and terrorism, when the Palestinian people have a leadership acting decisively against terror and willing and able to build a practicing democracy based on tolerance and liberty, and through Israel’s readiness to do what is necessary for a democratic Palestinian state to be established, and a clear, unambiguous acceptance by both parties of the goal of a negotiated settlement”.

The thrust of the Oslo Accords and the Roadmap is mutual performance and good faith negotiation, leading to a consensual outcome. 22. The Oslo Accords are legally binding. Remarkably, the Palestinians do not refer to these agreements in their Written Statement, while less than 12 months ago both Israel and Palestine reaffirmed their “unwavering commitment to all previous agreements between them” and “to address all outstanding issues through direct dialogue”.

Mr President, it is our submission that the request to this Court to opine on questions that address the legal obligations of only one party to this dispute conflicts with the clear rights and obligations of both parties in the Oslo Accords and the Roadmap, and which exclude recourse to this Court.

 For this reason, Fiji respectfully submits that the Court should exercise its discretion not to render an opinion on those questions.

LEGAL AND FACTUAL EVIDENCE

Mr President, Members of this honourable Court, I now turn to the issue of legal and factual evidence.

As stated, in Fiji’s view, the Court should decline to answer the questions posed. But were it to do so, it would need to gather and independently assess the probative value of evidence on issues raised within the established legal framework of the dispute.

This Court would have to decide, as it has previously explained, “whether [it] has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character”.

In Fiji’s view the Court cannot simply defer to the reports of United Nations bodies. In order to fulfil its judicial function, the Court must reach its own independent findings of fact.

Further, Fiji submits that, that due to the selective and one-sided formulations of the questions, the Court does not have before it all the evidence it would need to exercise its judicial function.

Mr President and esteemed Members of the Court, the point here is that the Court is being asked to focus solely on the policies and practices of one of the parties to this dispute, to the exclusion of the policies and practices of the other. This is highly problematic. If the Court would limit itself to consideration of the questions asked, it would be unable to consider the relevant broader context, and it will also not have before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon questions of fact that are in dispute, all of which would be necessary to give an opinion compatible with its judicial character.

We will illustrate this by looking briefly at three of the issues raised by the questions that have been posed to the Court, and these are: withdrawal and security, territorial sovereignty, and the right to self-determination.

Withdrawal and security

First, withdrawal and security. Palestine argues that the occupation is illegal and the legal consequence is that Israel must withdraw from the occupied territories. As highlighted earlier, any assessment of the questions posed would require the Court to consider the legal rights and obligations of both parties under the Oslo Accords.

The Oslo Accords were built upon Security Council resolutions 242 and 338, which were adopted following the 1967 and 1973 Arab-Israeli Wars. They recognize the legitimate security needs of Israel to prevent further attack.

Resolutions 242 and 338, and thus the Oslo Accords, do not oblige Israel to withdraw from all the territories.

Further, resolutions 242 and 338 refer to peace being established by the application of two mutually dependent principles:

“(i) Withdrawal of Israeli armed forces from territories occupied in the recent conflict; and (ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.”

By incorporating these resolutions into the Oslo Accords, the parties recognize that Israel’s withdrawal and the creation of conditions providing security to Israel are interdependent. As Judge Higgins stated in the Wall Opinion, both “Israel and Palestine [need] to move in parallel to secure the necessary conditions . . . for Israel to withdraw from Arab occupied territory and for Palestine to provide the conditions to allow Israel to feel secure in so doing”.

In other words, if the Court is to consider the legal consequences of the alleged Israeli refusal to withdraw from territory, it should also look at what Palestine must do to ensure Israel’s security.

Mr President and Members of this honourable Court, the events of 7 October 2023 have shown us what could happen if there were a complete and unconditional withdrawal without the necessary arrangements in place to guarantee the security of Israel and its population. At the very least, the Court would need to examine and evaluate evidence concerning the question whether the 1949 Armistice Lines are “secure boundaries” within the meaning of resolutions 242 and 338. This in turn would require examination of the threats facing Israel emanating from the occupied territories and the broader region.

Territorial sovereignty

Second, territorial sovereignty. Mr President and Members of the Court, the General Assembly’s request speaks of Israel’s “prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967”. This asks the Court to presuppose that all the territories held during the Jordanian and Egyptian occupation within the 1949 Armistice Lines are “Palestinian” - that is, that they are sovereign territories of Palestine and thus not of Israel.

A precise definition of the scope of territorial claims is important because “[t]erritorial sovereignty is a fundamental principle of the international political and legal order . . . It ‘serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian.’”

In the context of the questions put to this Court, territorial sovereignty is critical because without clarifying the respective claims of Israel and the Palestinians concerning the sovereign status of the territory, it would be impossible to answer the questions of territorial scope of the Palestinian self-determination claim or the occupation.

Fiji notes that the question of territorial scope- both of the State of Israel and of the self-determination claim of the Palestinian people - is in dispute between the parties.

And yet the way the questions are drafted excludes the possibility of the Court considering Israel’s claims to the sovereignty over the territory and asks the Court to assume without further investigation that these territories are somehow “Palestinian”.

Furthermore, the Court would need to assess whether the Palestinians have sovereignty and, if so, over which territory. This would include an examination, among other things, of the history of Palestinian assertions of claims  and of whether Palestinians make different assertions of sovereignty in different fora.

Palestine asserts that the provisions in the Mandate for Palestine concerning the establishment of a Jewish homeland as envisaged in the Balfour Declaration were illegitimate and in contravention of the Covenant of the League of Nations. It appears to claim that all the territory of Mandate Palestine - even including what is generally accepted to be the territory of the State of Israel - belongs to the Palestinian people. 

Mr President, Israel asserts, and Fiji agrees, that the Mandate for Palestine, including its provisions concerning the establishment of the Jewish homeland, such as the right of the Jewish people to live in and closely settle the land, was a binding instrument of international law. Israel also argues that the relevance of the rights conferred by the Mandate for Palestine was affirmed in Article 80 of the United Nations Charter, the so-called “Palestinian clause”20. 

There is thus a dispute about territorial sovereignty. Fiji submits that this dispute cannot and should not be resolved through means of the requested advisory opinion, for two reasons.

The first reason is that the question of “borders” and therefore the scope of territorial sovereignty was expressly agreed to be resolved through the permanent status negotiations to which the parties have committed themselves in the Oslo Accords. For the reasons set out earlier, this precludes the matter being adjudicated via an advisory opinion procedure.

The second reason is that, in any event, because of the way the questions to the Court have been formulated, the Court simply does not have before it sufficient information and evidence to enable it to arrive at a judicial conclusion on the disputed issue of the geographic limits of the territorial sovereignty of Palestine and Israel.

Self-determination

I now turn to self-determination.

The questions before the Court ask it to assume that Israel is violating “the right of the Palestinian people to self-determination”.

The question of self-determination raises the question of territorial scope. This raises the evidentiary concerns I have just expressed.  

Moreover, Fiji notes that the right to self-determination is a relative right. It should not involve changes to existing frontiers. In the context of Israel/Palestine, this means that the Court would need to ascertain whether the Palestinians’ exercise of their right to self-determination has infringed the territorial integrity, political inviolability or legitimate security needs of the State of Israel.

By asking the Court to look only at the policies and practices of Israel, resolution 77/247 shields from the Court’s purview the policies and practices of Palestine. The result, in Fiji’s submission, is that the Court simply does not have before it sufficient information concerning the policies and practices of Palestine, and thus is unable to make a judicial determination on whether, in exercise of their right to self-determination, Palestine has infringed the sovereignty of the State of Israel.

CONCLUSIONS

Mr President, esteemed Members of the Court, in conclusion, the relationship between Israel and the Palestinian people is legally, factually and historically complex. There are no simple answers. But there are two parties who need to jointly find a solution and they should be supported to do this.

Using the advisory opinion procedure to prosecute the alleged violations of international law of one of the parties to the dispute while ignoring possible violations by the other will not promote dialogue, nor foster mutual respect. Rather, it is likely to undermine efforts towards peace that can be best settled through the recommitment of the parties to the processes established under the Oslo Accords. In our view, this is why the General Assembly was seriously divided on whether these questions should be put to the Court for an advisory opinion, and it is also why this honourable Court should refrain from giving one.

Fiji respectfully submits that, for all these reasons, the Court should exercise its judicial discretion to decline to provide an advisory opinion on the specific question put to it in the United Nations General Assembly resolution 77/247.

Mr President, were the Court to decide to provide an advisory opinion, which Fiji submits it should not, the Court should be cautious to ensure the advisory opinion rendered does not circumvent the binding agreements between the parties but encourages them to promote fruitful negotiations. Furthermore, the Court should ensure that it does not impose obligations and responsibilities on only one party, while disregarding its legitimate concerns.

Mr President, Members of this honourable Court, this brings me to the end of Fiji’s oral presentation and I thank you.

Fiji's written arguments included more information about how the PLO was cynically abusing the court.

 Legal Obfuscation to Instrumentalize the Court.

 Legal obfuscation is problematic throughout the Request. It is evident, inter-alia, in the conflation of the legal doctrines of }us ad helium and of jus in hello, in the false assertions of violation of the Palestinian right to self-determination, false assertions of Israeli annexation throughout the West Bank, and of Palestinian national territory.

 The problem of conflation of the legal doctrines of }us ad helium and of jus in hello is apparent in the allegations embodied in the Request. The allegations impugn the entire Israeli occupation despite its legality in accordance with jus ad helium. Controversy over Israeli application of jus in hello should not be conflated with and does not equate to negation of the rights of the occupier under jus ad helium.

 Under jus ad hellum, the presence of Israel is legitimate, as is affirmed in UN Security Council Resolutions 242 (1967), 338 (1973) and 2334 (2016). These recognize control by Israel of the presumed occupied territories but do not declare that control per se to be a violation of international law. Furthermore, Israel's presence in the West Bank is endorsed by detailed international legal agreements, such as the Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan of 26 October 1994. According to the Oslo Accords, the final status of the territories is subject to negotiations. Various peace proposals negotiated between the parties have all recognized the potential for territorial exchanges, including the letter from US President Bush to Israeli Prime Minister Sharon of 14 April 2004.

 The Request also asks for legal consequences against Israel to flow from "prolonged occupation". While Israel is occupying a remainder of territories over which it gained control in self-defense in June 1967, the mere fact of occupation does not entail illegality. Control over much of those territories was handed back following the conclusion of an Egypt-Israel peace agreement of 26 March 1979 based on the 1978 Camp David Accords. (Israeli control over the Gaza Strip was unilaterally relinquished and handed by Israel to the Palestinian Authority in 2006 also, despite the lack of a final status peace agreement. The consequent continuing acts of aggression against Israel emanating from the Gaza Strip are well-known.) Israel has expressed and demonstrated willingness to cede control over territory in return for peace. International law imposes no constraint on the duration of occupation. The right of occupation continues throughout an armed conflict and endures until it is resolved.

The illegal South African presence in Namibia is not comparable, as that situation involved a League of Nations Class C Mandate in Southwest Africa (Namibia) granted to South Africa in 1915 and then terminated in 1966 under UN General Assembly Resolution 2145(XXI). The General Assembly resolution rendered the continuing South African presence illegal. In the current situation, there is no mandate and no termination of it. The Israeli presence is legal.

 

The Request also refers to "annexation" in the context of the West Bank, but the only territory annexed is East Jerusalem. The situation concerning East Jerusalem is complex and the Court cannot decide this issue unless it is presented with extensive, objective and verified legal and historical facts. The previously united city of Jerusalem was recommended by the UN General Assembly in 1947 to become an international condominium, but East Jerusalem was illegally invaded by Jordan in 1948 and then taken from Jordan by Israel in legitimate self-defense in 1967, then de facto annexed and reunited by Israel in 1980, and then passed symbolically by Jordan to the PLO in 1988. A substantive Jewish population resided in East Jerusalem for centuries; it has been the Jewish people's historic capital for more than 3000 years. West Jerusalem was built by Jews and has been under Israeli jurisdiction and control since 1948 and was treated as being under Israeli sovereignty in Security Council Resolution 242, which referred to trading peace for only those territories occupied by Israel in 1967. Although the Security Council in 1980 referred to the "Holy City of Jerusalem" and asserted that Israel's de facto annexation of the city was an infringement of its obligations as the occupying power, that resolution concerned East Jerusalem only. Furthermore, allegations that Israel illegitimately annexed East Jerusalem presume that international law prohibits annexation in any circumstances, including even reunification of a national capital city.

 The Request for an Advisory Opinion also alleges "discriminatory legislation and measures". Vague reference to Israel's alleged "adoption of related discriminatory legislation and measures" is indeterminate and prejudicial. Application of }us in be/lo entails legislation and measures distinct from the municipal law of Israel. To apply Israeli domestic law would amount to de facto annexation. Furthermore, Israel can depart from applying prior Jordanian law to the extent needed to meet the security needs of the occupying power.⁴ It would be incompatible with the judicial function for the Court to prosecute the case by actively selecting so-called "discriminatory" measures and then actively selecting standards to compare.

 The Request also refers to "settlement (...) of Palestinian territory", using language that obfuscates the lawful status of that territory. International law prohibits the forced movement of civilian population into occupied territory but does not prohibit civilian migration per se.⁵ Furthermore, "Palestinian territory" is a political concept without legal specificity. Security Council Resolution 242 does not rule out Israel's legitimate territorial claims to some of those territories, because it did not recommend withdrawal from all of those territories. Moreover, it was Jordan, not the Palestinians, who made claims to the territory originally.

The sovereignty of these territories is, arguably, in abeyance until such a time as a peace agreement is reached. The Court was careful, in 2004, to avoid deciding the sovereign status of these territories, except to determine that they are not, at present, part of the sovereign territory of Israel. The legal status of West Bank/Judaea and Samaria occupied by Israel has never been determined. Moreover, to decide this issue would require the Court to examine the complex history of the region from 1920 onwards, an exercise that goes arguably beyond the scope of the Request. It is relevant to mention that Article 2 of the Mandate for Palestine, created by the Council of the League of Nations in 1922, carries legal weight. It recognized the rights of the Jewish people in its legal obligation to ensure the establishment of the Jewish national home in the territory between the Mediterranean and the Jordan River. The Mandate included in Article 6 a right to immigration and settlement for the Jewish people in that territory.⁶

The international law principle of "acquired legal rights", constituted part of the transitional arrangements from the system of Mandates under the League of Nations to the system of Trusteeships under the UN Charter. Article 80 of the UN Charter continued the rights of Jewish and other peoples under the Mandates system. When the British unilaterally terminated their responsibilities under the Mandate and the Israel was proclaimed a State on 14 May 1948, rights under the Mandate remained relevant in the mandate territory not yet under Israeli control. The Court has underlined the relevance of the rights bestowed by a Mandate on the people concerned in its Advisory Opinions on Southwest Africa ⁷ and Namibia.⁸

Legal obfuscation to instrumentalize the Court is evident in the Request to the Court to opine on "legal consequences arising from" "ongoing violation by Israel" of "the right of the Palestinian people to self-determination". The Court is presumed to agree with the assertions of fact concerning alleged violation of the right to self-determination. There is no doubt that the Palestinian people have a right to self-determination, but it cannot be assumed that Israel is violating Palestinian rights to self-determination:

a.       The application of a right to self-determination requires the will of the peoples concerned to be fully established.⁹ This condition has not been satisfied, as a result of the failure of Palestinian leaders to hold elections for the last 16 years.

b.      Contrary to unsubstantiated frequent assumptions, reliable opinion polls (e.g. December 2021) show that an overwhelming majority of Arabs in East Jerusalem prefer a continuation of Israeli rule.¹⁰

c.       Self-determination is a relative right, that must be respected together with other rights, including the rights of the Jewish people to self-determination and to security. This is why a solution to the conflict must be found through a political process.

 

Under the Oslo Accords, the PLO agreed that "realization of the legitimate rights of the Palestinian people and their just requirements" depends on the fulfillment of conditions, including "direct, free and general political elections", establishing "a democratic basis for the establishment of Palestinian institutions". The Oslo II Interim Agreement (1995) contains current provisions regarding the election of the Authority in its Articles II-IX and Annex 2. It is the non-implementation of these provisions by Palestinian leaders that is currently depriving Palestinians of self-determination.

Even a prima facie analysis shows strong reasons why the allegations made in the Request obfuscate the law and make factual assertions that are misleading or false. If the UN General Assembly seeks advice, it must not require the Court to agree first with its own assertions. If the Court was to address these issues, there is a high risk its Advisory Opinion would be based on false information.

Reportedly, this was created with the help of a pro-Israel organization,  The Hague Initiative for International Cooperation, a pro-Israel legal consulting team based in The Netherlands.

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