Diploma of the Hague Academy of International Law. Previously Professor of International Law at the Geneva Graduate Institute
At the request of the UN General Assembly, the International Court of Justice has this week been conducting oral hearings on “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem”. Guyana has made a written submission to the Court on this matter, and on Wednesday amplified these in oral submissions.
Mr Edward Craven of Matrix Chambers in London spoke ably for Guyana. He was accompanied by Ms. Jill Tansley of London, Ontario, as assistant, and Mr Lloyd Gunraj, Officer-in Charge of Guyana’s Embassy in Brussels. Mr Craven’s submissions on behalf of Guyana contained significant statements of the foreign policy of Guyana on the issues at hand, and on the role of international law in international affairs.
The core of Mr Craven’s argument is contained in paragraph 39 of his submissions, taken from the published transcript of the hearing: “For many years, Israel has chosen to place its own expansionist interests above the duty to respect international law, including [peremptory] jus cogens norms and the United Nations Charter. The result of that deliberate defiance of international law has been decades of dispossession, oppression and injustice for the State of Palestine and the Palestinian people, who have been systematically deprived of their fundamental right of self-determination”.
Mr Craven underlined the absence of negotiations between Israel and the State of Palestine: “There have been no negotiations between the two States for a decade. There are no live negotiations… Nor is there any realistic prospect of Israel’s willing participation in such negotiations in the near future.” In the circumstances, he said, the Israel-Palestine conflict must be – and can only be – resolved in accordance with international law: “In other words, a just, lasting and comprehensive peace necessarily requires compliance with international law.”
On “an important issue of substance, namely whether as a matter of international law an occupation can be unlawful”, Mr Craven was critical of the position of the USA in its submissions: “The United States, as you heard earlier, contends that an occupation cannot be unlawful. It argues that occupation is governed exclusively by international humanitarian law, which is concerned only with the acts of the Occupying Power and has nothing to say about the legality of the occupation itself. For the United States, when it comes to occupation international humanitarian law is both the start and the end; it is the only game in town. Guyana, like dozens of other States and international organizations, disagrees. Put simply, there is a distinction between the law of occupation, on the one hand, and the legality of an occupation, on the other. The conduct of an occupation is governed by international humanitarian law, while the legality of an occupation as a whole is determined by the United Nations Charter and general international law.” Mr Craven went on to point out that under the United Nations Charter, the acquisition of territory by force is absolutely prohibited.
Permanent occupation, Mr Craven continued, is not occupation at all; it is military conquest. It is annexation. “And annexation is…strictly forbidden under international law. It therefore necessarily follows that an ‘occupation’ which is intended to be permanent is unlawful under international law.”
Israel’s occupation of Palestinian territory, Mr Craven added, “is unlawful as a whole. The unlawfulness arises from the fact that Israel has annexed most of the occupied territory, de jure and de facto, including by implanting almost three quarters of a million Israeli settlers in hundreds of settlements, which Israel’s leaders have promised never to remove.”
Mr Craven went on to make the following loaded submissions: In Jerusalem, Israel has formally declared sovereignty over the occupied territory and has expressly extended the application of its domestic laws to that territory. This is a classic example of de jure annexation – and it is irrefutable evidence that Israel intends its occupation to be permanent.
Over many years, Israel’s leaders have repeatedly proclaimed East Jerusalem to be an inseparable part of Israel. There has been the systematic implantation of more than 230,000 Israeli settlers in East Jerusalem – “an exercise in deliberate demographic manipulation that has profoundly changed the composition, the character and the status of the Holy City.”
In the rest of the West Bank, Israel has conducted a similar, decades-long process of implanting half a million Israeli settlers in more than 270 illegal settlements. The intent, and the effect, is to establish permanent Israeli dominion throughout the West Bank.
Israel’s annexation of the occupied territory and its intention for the occupation to be permanent has been widely recognized and condemned by the United Nations.
Mr Craven underlined: “Israel’s annexation of Palestinian territory, and its clear intention for the occupation to be permanent, render the occupation unlawful as a whole.” He continued, in paragraph 37 of his submissions: “In January this year, the Secretary-General, citing international law and the resolutions of the Security Council and the General Assembly, concluded bluntly that ‘Israel’s occupation must end’. When the United States read aloud from the Secretary-General’s statement earlier today, it regrettably excised these crucial words… Guyana emphatically agrees with …the Secretary-General. The occupation is unlawful. The occupation must therefore end – immediately, comprehensively, irreversibly.”.
Barrister Craven thus spoke vehemently in the name of Guyana – in the very month when Guyana is presiding over the UN Security Council. He expressed regret at the conduct of the USA – at a time when Guyana needs the support of the USA for the legal and political defence of its own borders.
It would be interesting to know whether, and at what level of Government, the nuances and wordings of these legal submissions were approved, and whether they took account of Guyana’s membership and Presidency of the Security Council, and Guyana’s need for allies in the defence of its own borders.
