Dichiarazione dell’IJL riguardante il parere consultivo dell’ICJ su questioni relative al conflitto israelo-palestinese
Venerdì 19 luglio, la Corte internazionale di giustizia (ICJ) ha espresso il suo parere consultivo sulle “Conseguenze legali derivanti dalle politiche e dalle pratiche di Israele nei territori palestinesi occupati, compresa Gerusalemme est” (vedi in calce nda).
È deplorevole che la Corte abbia accettato la richiesta dell’Assemblea Generale di fornire un parere su tale questione, nonostante il fatto che i suoi aspetti politici prevalgano chiaramente su qualsiasi potenziale questione giuridica.
Il parere consultivo trascura informazioni fattuali critiche e giunge a conclusioni giuridiche errate. Ad esempio, ignorando le forti rivendicazioni legali dello Stato di Israele e del popolo ebraico sul territorio e applicando in modo errato le leggi sull’occupazione belligerante e le leggi sull’uso della forza. (Per una discussione completa di questi e altri aspetti rilevanti, vedere la presentazione dettagliata dell’IJL alla Corte)
In particolare, il parere consultivo non riesce a considerare adeguatamente le legittime preoccupazioni di Israele in materia di sicurezza e le loro implicazioni legali, comprese quelle derivanti dall’orrendo attacco di Hamas del 7 ottobre 2023.
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Written Statement submitted by the International Association of Jewish Lawyers and Jurists under ICJ Practice Direction XII in the Advisory Proceedings on the “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem” as initiated by UNGA A/RES/77/247
https://mcusercontent.com/d2aa5f1f6afd4be7f77f4c271/files/28c0909d-0248-b247-f582-86fbdfcb07f4/IJL_Statement_ICJ_Final.01.pdf
Conclusion
91. The Israeli-Palestinian dispute is one component of a historic, wider, dispute between the Arab world and the State of Israel, which is widely viewed as having commenced in 1948 (although some would date it before or after). This submission has shown that there are competing claims over the disputed territory which forms the subject of the General Assembly’s referral. The territory’s current legal status is that of indeterminacy pending agreement by the parties.
92. We have further explained that there is an international legal framework (UN and bilateral) in force for the resolution of the conflict, which is based on the principle of land for peace, and which does not view the presence of Israeli forces in the West Bank until peace is achieved as unlawful. Over the last 45 years, significant strides have been made in resolving the wider dispute. Peace treaties between Egypt and Israel and Jordan and Israel were signed and implemented in 1979 and 1994 respectively. In 2020, in the context of the Abraham Accords, normalisation agreements (equivalent to peace treaties) have been reached between Israel and a diverse list of Arab countries including the UAE, Bahrain, Morocco, and Sudan. The Israeli presence in the West Bank pending
the conclusion of a peace agreement between Israel and the Palestinians is consistent with the international and bilateral frameworks for the resolution of the conflict.
93. We also explained that Israel’s presence in the West Bank is a result of lawful use of force in self-defence in 1967. Israel’s presence in the West Bank since then is governed by the jus in bello, and in particular, the law of occupation. We demonstrated that international law does not include a requirement to end a situation of occupation before the resolution of the conflict. We also highlighted that while international law does not require Israel to provide an ongoing self-defence justification for its continued presence in the West Bank, in reality Israel’s presence in the West Bank is required in order to protect its citizens from attacks such as the one that occurred on 7 October 2023.
94. The historic peace processes between Israel and its neighbours show that, in this context, one-time enemies can set aside their differences and resolve their disputes without resorting to force and compulsion. What is required is that both the Israeli and Palestinian sides accept that a negotiated solution is the only way forward. In the words of Judge Sebutinde:
“As can be seen from the above history, it is clear that a permanent /solution to the Israeli Palestinian conflict can only result from good
faith negotiations between Israeli and Palestinian representatives working towards the achievement of a just and sustainable two-State
solution. A solution cannot be imposed from outside, much less through judicial settlement.”136
135 Wall Advisory Opinion, Id, Separate Opinion of Judge Higgins, para. 34, para. 6.
136 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip
(South Africa v. Israel), Order of 26 January 2024, Dissenting opinion of Judge Sebutinde, para. 11. 27
95. The Court has twin functions under its Statute, namely (1) to resolve disputes between
States when all relevant States consent and (2) to provide advisory opinions to authorised UN entities. This submission has further shown how, in the current matter, the Court may conclude that it is, in effect, being requested to use its advisory role to resolve a dispute in an alternative manner to that which has been stipulated by the Security Council, and agreed between the parties, in the absence of the consent of one of those parties to its judicial dispute resolution. Yet this is a dispute which the parties thereto have agreed, in binding international agreements which have been the subject of international recognition and support, including through the award of three Nobel Peace Prizes, to resolve through direct bilateral negotiation.
96. The IJL therefore urges the Court to exercise caution. Addressing the questions raised in Resolution 77/247, especially in their current form, runs the risk of ignoring the lex lata international legal framework, undermining the mutually agreed framework for resolution of the Israeli-Palestinian conflict, and the prospect of its negotiated solution.
Respectfully submitted,
Daniel Reisner, Deputy President, IJL Dr. Roy Schond
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