THE HAGUE – The United Nations' highest court opens historic hearings Monday into the legality of Israel's 57-year occupation of lands sought for a Palestinian state, plunging the 15 international judges back into the heart of the decades-long Israeli-Palestinian conflict.
Six days of hearings are scheduled at the International Court of Justice, during which an unprecedented number of countries will participate, as Israel continues its devastating assault on Gaza.
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Though the case occurs against the backdrop of the Israel-Hamas war, it focuses instead on Israel's open-ended occupation of the West Bank, Gaza and east Jerusalem.
Palestinian representatives, who speak first on Monday, will argue that the Israeli occupation is illegal because it has violated three key tenets of international law, the Palestinian legal team told reporters Wednesday.
They say that Israel has violated the prohibition on territorial conquest by annexing large swaths of occupied land, has violated the Palestinians' right to self-determination, and has imposed a system of racial discrimination and apartheid.
“We want to hear new words from the court," said Omar Awadallah, the head of the U.N. organizations department in the Palestinian Foreign Ministry.
“They've had to consider the word genocide in the South Africa case," he said, referring to a separate case before the court. "Now we want them to consider apartheid.”
Awadallah said an advisory opinion from the court "will give us many tools, using peaceful international law methods and tools, to confront the illegalities of the occupation.”
The court will likely take months to rule. But experts say the decision, though not legally binding, could profoundly impact international jurisprudence, international aid to Israel and public opinion.
“The case will put before the court a litany of accusations and allegations and grievances which are probably going to be uncomfortable and embarrassing for Israel, given the war and the already very polarized international environment,” said Yuval Shany, a law professor at Hebrew University and senior fellow at the Israel Democracy Institute.
Israel is not scheduled to speak during the hearings, but could submit a written statement. Shany said Israel will likely justify the ongoing occupation on security grounds, especially in the absence of a peace deal.
It is likely to point to the Oct. 7 attack in which Hamas-led militants from Gaza killed 1,200 people across southern Israel and dragged 250 hostages back to the territory.
“There is this narrative that territories from which Israel withdraws, like Gaza, can potentially transform into very serious security risks," Shany said. “If anything, Oct. 7 underscored the traditional Israeli security rationale to justify unending occupation.”
But Palestinians and leading rights groups say the occupation goes far beyond defensive measures. They say it has morphed into an apartheid system, bolstered by settlement building on occupied lands, that gives Palestinians second-class status and is designed to maintain Jewish hegemony from the Jordan River to the Mediterranean Sea. Israel rejects any accusation of apartheid.
The case arrives at the court after the U.N. General Assembly voted by a wide margin in December 2022 to ask the world court for a non-binding advisory opinion on one of the world’s longest-running and thorniest disputes. The request was promoted by the Palestinians and opposed vehemently by Israel. Fifty countries abstained from voting.
In a written statement before the vote, Israel’s U.N. Ambassador Gilad Erdan called the measure “outrageous,” the U.N. “morally bankrupt and politicized” and any potential decision from the court “completely illegitimate.”
After the Palestinians present their arguments, 51 countries and three organizations — the League of Arab States, the Organization of Islamic Cooperation, and the African Union will address the panel of judges in the wood-paneled Great Hall of Justice.
Israel captured the West Bank, east Jerusalem and Gaza Strip in the 1967 Mideast war. The Palestinians seek all three areas for an independent state. Israel considers the West Bank to be disputed territory, whose future should be decided in negotiations.
It has built 146 settlements, according to watchdog group Peace Now, home to more than 500,000 Jewish settlers. The West Bank settler population has grown by more than 15% in the last five years according to a pro-settler group.
Israel also has annexed east Jerusalem and considers the entire city to be its capital. An additional 200,000 Israelis live in settlements built in east Jerusalem that Israel considers to be neighborhoods of its capital. Palestinian residents of the city face systematic discrimination, making it difficult for them to build new homes or expand existing ones.
The international community overwhelmingly considers the settlements to be illegal. Israel’s annexation of east Jerusalem, home to the city’s most sensitive holy sites, is not internationally recognized.
It's not the first time the court has been asked to give an advisory opinion on Israeli policies or to declare an occupation illegal.
In 2004, the court said that a separation barrier Israel built through east Jerusalem and parts of the West Bank was “contrary to international law.” It also called on Israel to immediately halt construction. Israel has ignored the ruling.
In a 1971 case the Palestinian legal team is likely to draw from, the court issued an advisory opinion finding that the South African occupation of Namibia was illegal, and said that South Africa had to immediately withdraw from the country.
Also, late last month, the court ordered Israel to do all it can to prevent death, destruction and any acts of genocide in its campaign in Gaza. South Africa filed the case accusing Israel of genocide, a charge that Israel denied.
South African representatives are scheduled to speak Tuesday. The country's governing party, the African National Congress, has long compared Israel’s policies in Gaza and the West Bank to the apartheid regime of white minority rule in South Africa, which restricted most Black people to “homelands” before ending in 1994.
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Frankel reported from Jerusalem.
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