Mondoweiss / September 4, 2023
“The study is the most comprehensive and persuasive analysis of why the Israel occupation has now become illegal,” says former UN Special Rapporteur Michael Lynk. “It will be the intellectual and political touchstone on Palestine and international law for some time.”
Last week, the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP) issued a study two years in the making: The Legality of the Israeli Occupation of the Occupied Territories, Including East Jerusalem.
Committee Chair Ambassador Cheikh Niang introduced the study commissioned by the CEIRPP and prepared by the Irish Human Rights Centre of the National University of Ireland in Galway. Niang said, “The relevance and urgency of this study cannot be overstated… It is incumbent upon us, the international community, to deepen our understanding of the legal issues raised by this prolonged occupation and its profound impact on human rights, peace, and stability in the region.”
At the invitation of the UN committee, former UN Special Rapporteur on Palestine Michael Lynk reflected on the study. He highlighted many of its findings and described it as “the most comprehensive, the most detailed, the most thorough documentation addressing the questions that the UN General Assembly has put before the International Court of Justice regarding its advisory opinion on the legality of Israel’s now over 56-year occupation of Palestine.”
The 106-page report is an exhaustive study (with over 700 footnotes) concluding that the conduct of Israel meets “two clear grounds in international law establishing when a belligerent occupation may be categorized as illegal.” [A belligerent occupation, the term most often used in international law, is more commonly called a military occupation and is defined as the military control by a ruling power over a territory outside of that power’s sovereign territory.]
The study takes the reader into the weeds of international law: definitions; the points at which an occupation allowed under international law can be considered an illegal occupation; related cases settled before the International Court of Justice (ICJ); an examination—and refutation—of Israel’s policies and positions regarding its administration of the Palestinian territory; a presentation of the evidence that the belligerent occupation has become illegal; and an examination of the responsibility—under international law—for the international community to act to bring an end to the occupation.
Still, the legal study is accessible to lay readers. Those well-informed about the ongoing situation in Palestine/Israel will add to their understanding through the many resources and findings uncovered by the study.
While it acknowledges that “the most appropriate forum for examining the legality of the occupation is the International Court of Justice,” the study, as it says, “provides the factual basis to support the finding that Israel’s occupation is illegal.”
Following a finding of illegality, the study concludes that, according to international law,
the consequences should be the immediate, unconditional and total withdrawal of Israel’s military forces; the withdrawal of colonial settlers; and the dismantling of the military administrative regime, with clear instructions that withdrawal of breach of an internationally wrongful act is not subject to negotiation. Full and commensurate reparations should be accorded to the affected Palestinian individuals, corporations and entities for the generational harm caused by Israel’s land and property appropriations, house demolitions, pillage of natural resources, denial of return, and other war crimes against humanity orchestrated for the colonialist, annexationists aims of an illegal occupant.
Arguments are expected to be heard in The Hague by the ICJ next spring on the legality of the Israel occupation and the legal consequences incumbent on the international community.
Mondoweiss interviewed now-retired Professor Michael Lynk by phone following the committee meeting.
Mondoweiss: How did the study come about, why the Irish Centre for Human Rights ?
Michael Lynk: The Idea for the study came through the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People and the Division for Palestinian Rights. They saw the need for a wide-ranging study, both for public education and to advance the diplomatic steps for Palestinian self-determination.
For many reasons, it made sense to approach the Irish Centre. One, because Ireland, among all the European states, has taken a very good position with respect to the wrongs associated with the occupation. Two, the Centre has produced a number of legal scholars who have gone on to write a lot about Palestine. Many wound up working with organizations in Palestine and Israel on questions related to the occupation and international law. So, the Centre had the inclination, the understanding of the occupation, and the legal expertise to be able to do the study.
Let me say, I’m someone who is deeply invested in reading about international law and Palestine. Still, I learned a huge amount from the study. There are many sources, and many resolutions, and many, many arguments that I was not familiar with. It’s groundbreaking. It will be the intellectual and political touchstone on Palestine and international law for some time to come.”
What are some of the important features of the study ?
The view in much of the Global North—in the U.S. and Canada and many European countries—is, “Yes, there may be illegalities or illegitimate actions by Israeli in the conduct of the occupation: the settlements, the annexation of East Jerusalem, the Wall.” But overall, these countries have always assumed that the occupation is legal. They say, “We’re just waiting for the right diplomatic… the right magic sauce to get the parties together to negotiate an end to this.”
The study says that there are not only significant illegalities attached to the occupation, but the occupation itself is now illegal ….
All you have to do is listen to the commentary of recent Israeli leaders to understand that the occupation is not going to end by the grace of Israel. Naftali Bennett, when he was Prime Minister two years ago, said, “I oppose a Palestinian state and I am making it impossible to conduct diplomatic negotiations that might lead to a Palestinian state.” Benjamin Netanyahu has said—and I’m paraphrasing, “The most we’re going to offer Palestinians is a State-minus. That is, they have the power to collect their garbage, clean their streets and run their water service. Otherwise, we control the territory from the Mediterranean to the Jordan.”
What do you hope will be the study’s impact ?
It should be a landmark in diplomatic thinking about how to confront, how to end the Israeli occupation, the stated goal of every state in the world, aside from Israel. If the occupation itself is illegal, this raises the bar of responsibility on the international community, particularly the Global North, for finally accepting that the occupation will not end by itself. It’s not going to end by repeating the mantra of “negotiations for a two-state solution,” when nothing is being done by the Global North to impose a diplomatic… an economic cost on Israel for doing everything it can to write the obituary for Palestinian self-determination.
The hearing that will come before the ICJ, what practical, concrete end can we anticipate ?
In December last year, the UN adopted a resolution asking the International Court of Justice for an advisory opinion on a number of issues—whether the prolonged occupation is still legal, what are the legal consequences arising from Israel’s adoption of related discriminatory measures, what are the legal consequences for the international community and the United Nations. You’ll remember that the ICJ is the highest judicial body in the UN system. In 2004, it delivered an advisory opinion which determined that Israel’s separation wall was illegal.
Now, a number of countries—primarily from the Global South—have delivered written statements to the ICJ, arguing that the occupation has become illegal, that it must end immediately. Some have argued that Israel has violated fundamental norms of international law by instituting apartheid. Just a handful of states—including the United States, Israel, the United Kingdom and Canada—have submitted statements asking the ICJ not to grant the request by the General Assembly for an advisory opinion, arguing that everything should be settled at a negotiating table instead.
…The only way that the Palestinians can ever hope to bargain effectively at a negotiating table is if the international community insists that any negotiations between Israel and Palestine be conducted entirely within a rights-based framework, with the central demand that Israel end the occupation completely, immediately and unconditionally. And that Israel is responsible for reparations to Palestinians for what’s happened over the last many decades.
Any personal reflections on your work ?
I consider it the honor of my life to have served as the UN Special Rapporteur for the six years [2016-2022]. Before my appointment, I had done a fair amount of work on Palestine and Israel, I had lived in the occupied territory and worked at the UN, I had read widely on Palestine. But the opportunity as Special Rapporteur to speak on the international stage about the deteriorating state of human rights, to meet the very brave Palestinian, Israeli and international human rights organizations that did stellar work on this issue, it’s been the most meaningful experience of my legal career.
I’ll add this: Those six years marked an important turning point. All of a sudden, you could begin to see the titanic change in direction. It was blasphemous in 2016 to state the word apartheid. By the time I left in 2022, the word apartheid had been adopted by every major international and regional human rights organization to describe what was going on in the occupied territory… plus that which happened after my time: the arrival of this new extreme Israeli government, the hardening of the international attitude towards the occupation. I think international attitudes are changing, changing rapidly. They wouldn’t have changed without all these human rights organizations on the ground in Palestine and Israel who did such heroic work to change the vocabulary, to change the understanding about what is going on.
Jeff Wright is an ordained minister of the Christian Church (Disciples of Christ)