Egypt joins calls for World Court to establish illegality of Israeli occupation

Egypt presented its position on Wednesday in public hearings as part of the United Nations’ suit to have Israel’s occupation of Palestinian lands declared illegal in an advisory opinion by the International Court of Justice.

The ICJ’s advisory opinions are not binding, and will have no direct impact on Israel’s ongoing aggression on Gaza.

The right kind of ruling, though, could add to slowly building international pressure in favor of the Palestinian cause.

The suit is one of three international legal actions probing the Occupation’s violations against Palestinians, with South Africa seeking that the ICJ classify the current aggression on Gaza as genocidal, and the International Criminal Court investigating violations committed against Palestinians since 2014.

“We hope that the court will issue a strong advisory opinion,” said Namira Negm, an Egyptian diplomat and director of the African Migration Observatory who was one of the counsels who spoke before the ICJ on Monday on behalf of the Sstate of Palestine.

“It is not expected that these efforts will bear fruit overnight, especially since this move by the General Assembly began before the current operations in Gaza,” she told Mada Masr.

“However, a court’s opinion indicating the illegality of the occupation will confirm everything we repeat daily against Israeli officials declaring they have the right to defend themselves in the occupied territories.”

What is the case being heard in the ICJ this week?

The UN General Assembly requested in December 2022 that the ICJ issue its legal advisory opinion on the legality of Israel’s occupation of Palestine on the basis of a 87-26 vote with 53 abstentions that saw Western states divided on the matter.

The vote came after a report issued by the UN High Commissioner for Human Rights stated that there are “reasonable grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law due to its permanence and the Israeli Government’s de-facto annexation policies.”

International law professor Noura Salem told Mada Masr that the case seeks clarity on legal questions, such as: is the prolonged occupation, settlement and annexation of Palestinian territory since 1967 illegal? What are the legal consequences for Palestine? And what are the legal consequences for third-party states and for the UN?

Fifty-two states, including Egypt and three international organizations — the Arab League, the African Union and the Organization of Islamic Cooperation — submitted their memoranda to the court during the first half of 2023. This week’s sessions will see those participants present their arguments orally.

While the court’s advisory opinions are not legally binding decisions, they can enable the UN to take action against the perpetrator state if they prove international law was violated, Yasser Hassan, the lead counsel of the Arab Lawyers Union’s legal team for defending Palestinian victims before international courts, told Mada Masr.

In a similar case in 2003, the UNGA sought the court’s opinion on the separation wall erected by the Occupation in the West Bank. The ICJ concluded in 2004 that the wall is in violation of international law and should be dismantled. Regardless, the wall remains in place, separating the West Bank from Israel.

How is Egypt participating in the case?

Egypt is presenting its legal memorandum to the case in the public hearings ongoing at the ICJ between February 19 and 26.

Speaking before the court on Wednesday, legal advisor to the office of the Foreign Minister Yasmine Moussa restated Egypt’s position.

On the procedural side, Moussa agreed that the ICJ has jurisdiction to give the advisory opinion and that the UN is responsible for pursuing pathways toward Palestinian statehood.

On the legality of Israel’s occupation, Moussa argued on behalf of Egypt’s Foreign Ministry that Israel has violated international law by building Israeli settlements on and occupying Palestinian territories and discriminating against Palestinians, representing a de facto colonization of the territories.

She said that these acts violate international humanitarian law, international human rights law, the right to self-determination and the legal prescriptions against acquiring territory by force.

The latter two rights have peremptory value, Salem noted to Mada Masr, meaning there are no exceptions to them.

Moussa argued as well that Israel is required to make full reparation, restitution, compensation and satisfaction by ceasing occupation and its practices. She added that other states have a duty not to recognize the illegal situation created by Israel’s ongoing violations and not to render aid or assistance to it to maintain them.

What to expect from the ICJ’s ruling?

The ICJ could likely decide that Israel’s acts constitute a violation of international human rights law, international humanitarian law and the right to self-determination.

Its opinion could also include a set of recommendations going forward, said Salem. It could recommend a stop to wrongful acts, for example, which could entail orders to halt settlement building. A recommendation for “reparations for injury caused by the wrongful acts” could entail demolishing settlements built on Palestinian lands after 1967 and compensation for Palestinians.

“Perhaps, most forcefully, the court could also recommend measures to prohibit third parties from collaborating with Israel to uphold anything related to its occupation of Palestinian lands. These recommendations could include the suspension of economic relations with or imposing a weapons embargo on Israel.”

While the recommendations will be advisory and not legally binding, Hassan said he believes that this and other pending international cases could add legal ballast to long-held diplomatic positions that stand in favor of a return to the 1967 borders, the two-state solution, and the right of Palestinians to resist occupation in Palestinian territories.

It stands alongside two other cases pending in international courts against Israel. The first is South Africa’s ongoing case on whether Israel’s actions in Gaza are in violation of the Genocide Convention, which have already killed over 29,300 people. South Africa’s 2023 case is a “dispute between states,” which is the other type of litigation the ICJ is competent to review. Hassan notes that in this case, the ICJ’s ruling will be legally binding.

The second is an investigation, filed in 2018 and accepted in 2021, at the ICC, which seeks to try individuals, not states, for crimes committed in Palestinian territories since 2014, including the ongoing war on Gaza, according to Hassan, who is leading a legal team put together by the Arab Lawyers Union to represent Palestinian victims in the ICC proceedings. 

Israel and 40 other states do not recognize the ICC. However, a ruling can still allow states and the International Criminal Police Organization (Interpol) to arrest and prosecute the perpetrators if they are convicted, Hassan noted.

Negm told Mada Masr about the Palestinian legal team’s hopes for the ICC case on occupation. “We hope that the court will issue a strong advisory opinion, similar to [that issued] in 2004, demanding that all UN member states stop dealing with the settlements, support the establishment of the State of Palestine on its lands occupied since 1967, and stop supporting Israeli operations in East Jerusalem, including prohibiting countries from moving their embassies from Tel Aviv to Jerusalem.”

Though a date is yet to be set for the court’s decision, Hassan expects it to come out before the end of 2024.