Western leaders recently expressed their full support for Israel after attacks by Hamas. But does the West have the right to dictate what the Palestinians should do?
A recent report from the Irish Center for Human Rights for the UN states the following:
“The study outlines that there are international consequences for Israel’s illegal occupation and its breaches of peremptory norms of international law, and Third States and the international community are obliged to bring the unlawful administration of occupied territory to an end. In doing so, this study underscores the requirements for the full de-occupation and decolonization of the Palestinian territory, starting with the immediate, unconditional, and total withdrawal of Israeli occupying forces and the dismantling of the military administration. Critically, withdrawal, as the termination of an internationally wrongful act, cannot be made the subject of negotiation. Full sanctions and countermeasures, including economic restrictions, arms embargoes, and the cutting of diplomatic and consular relations, should be implemented immediately, as an erga omnes response of Third States and the international community to Israel’s serious violations of peremptory norms of international law. The international community must take immediate steps toward the realization of the collective rights of the Palestinian people, including refugees and exiles in the diaspora, starting with a plebiscite convened under United Nations supervision, to undertake the completion of decolonization.”
This report largely aligns with the conclusions of the Dutch Advisory Council on International Affairs and a letter from thirteen professors of international law to the government. André Nollkaemper, the legal advisor of the Netherlands and dean of the Faculty of Law at the University of Amsterdam, said that Israel is committing apartheid and argued for the suspension of the EU Association Agreement and military cooperation with Israel, as well as recognition of the Palestinian state.
Are Arabs Warlike?
Supporters of Israel claim that Arabs are warlike. For instance Gilad Erdan, Israel’s UN Ambassador to the UN said 2019: “Jews resolve things in court, Arabs pull out a weapon.” In reality, both Syria and Egypt attempted multiple times in 1947 to have the conflict decided by the International Court of Justice (ICJ) through an advisory opinion. Advisory opinions are not binding, but the Arabs wanted to recognize these opinions as such. They wished to ask various questions: Was the Balfour Declaration legal? Did the mandate conflict with the prior British promise of an independent Arab state? Was the UN competent to partition Palestine? Should the local population decide the fate of Palestine based on the principle of self-determination?
In 1948, the Arabs wanted to pose new questions: Was Israel’s declaration of independence legal? Who had sovereignty over Palestine when Great Britain left? Were the Arabs or the Israelis the aggressors?
Israeli Resistance
The Israelis consulted two prominent jurists: Shabtai Rosenne and Hersch Lauterpacht. Lauterpacht was one of the greatest scholars in international law and later a judge at the ICJ. Rosenne and Lauterpacht advised avoiding the ICJ, as it was not evident that the Israelis were in the right. The court could easily decide that Palestine belonged to the Palestinians. In fact, Lauterpacht thought the Israeli arguments were nonsensical.
Lauterpacht’s Hypocrisy
Countries are not obligated to settle their conflicts in international courts. Lauterpacht, however, campaigned to make international courts mandatory. He also wanted ICJ advisory opinions to be strengthened. Currently, only UN bodies like the Security Council and the General Assembly can request an advisory opinion. Lauterpacht wanted individual countries also to have this ability. Contrary to his philosophy, he advised against seeking an advisory opinion. Through lobbying, the Israelis prevented the Arabs from securing enough votes.
Dutch Hypocrisy
It is noteworthy that in 2004 the Netherlands requested that the ICJ not give an advisory opinion on the situation, despite acknowledging in the same letter that Israel violated international law. The Netherlands knows it but does not want to hear it. This attitude raises questions about the Netherlands’ willingness to act according to international law.
Through a resolution, the UN requested a new advisory opinion in 2022 on the legality of the occupation and whether Israel is committing apartheid. The Dutch cabinet abstained from voting, despite claiming that only judges can decide whether Israel is committing apartheid.
Additionally, the West supports tribunals against Russians but does little to encourage the International Criminal Court to prosecute all war crimes in Palestine, including both Palestinian attacks and Israeli actions such as expropriations and settlements.
Through their behavior, Western countries enable Israel to acquire more territory illegally.
Finally, there is the legal principle of ‘clean hands’. According to this principle, a country that breaks the law itself is not in a position to reprimand another offender in the same conflict. Although the West likes to present itself as a champion of human rights and international law, it must first put its own house in order before teaching others a lesson. By failing in its legal duties, the West stands on shaky ground.
The conclusion is inevitable: as long as the West aids Israel in taking more land, it has no right to dictate to the Palestinians how they should liberate themselves. If the West is committed to justice and international law, it must first fulfill its own legal obligations. Only then does the West have the right to speak.
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