How does Israel’s occupation of Palestine work?

Why do some call it an ‘apartheid’ and what does the occupation look like in practice?

Hearings have started at the International Court of Justice (ICJ) in The Hague on Monday in a landmark case in which 52 countries are jointly presenting evidence about the legal consequences of Israel’s occupation of Palestinian territories.

The case stems from a request from the United Nations General Assembly (UNGA) on December 30, 2022. A majority of UNGA members voted to seek the court’s opinion on the legal consequences of the continuing Israeli occupation of Palestine. The hearings will last until February 26.

A panel of 15 judges is expected to take about six months to issue a non-binding, advisory opinion on the request, which also asks them to consider the legal status of the occupation and its consequences.

Israeli Prime Minister Benjamin Netanyahu rejected the legitimacy of the ongoing proceedings at The Hague in a statement released by his office on Monday.

Netanyahu appeared to suggest he would disregard any ruling against Israel by the ICJ when he added that Israel will maintain full “security control” over areas that are west of the Jordan River. “Of course, this includes Judea and Samaria, and the Gaza Strip,” the statement added. “Judea and Samaria” refers to the West Bank.

On Monday, Palestine presented its case at the ICJ. “We call on you to confirm that Israel’s presence in the occupied Palestinian territory is illegal,” Riyad Mansour, the Palestinian representative to the United Nations, said during an emotional speech.

“A finding from this distinguished court … would contribute to bringing [the occupation] to an immediate end, paving a way to a just and lasting peace,” he said. “A future in which no Palestinians and no Israelis are killed. A future in which two states live side by side in peace and security.”

International law expert Paul Reichler, representing Palestine in the hearings, told the court that the policies of Israel’s government “are aligned to an unprecedented extent with the goals of the Israeli settler movement to expand long-term control over the occupied West Bank, including East Jerusalem, and in practice to further integrate those areas within the territory” of Israel. He deemed the occupation “gravely unlawful”.

Canadian officials announced at the last minute that they would not be presenting in oral proceedings on Tuesday, but did not give a reason. The court is expected to hear varying opinions, however.

The way in which each country voted in the UN General Assembly in the 2022 vote that prompted this case may be indicative of their approach in upcoming days in The Hague. The United States, United Kingdom and Canada voted against referring the case, whereas Brazil, Spain and Switzerland abstained.

Article 42 of the 1907 Hague Regulations, pertaining to conduct in warfare, states that “territory is considered occupied when it is actually placed under the authority of the hostile army”. The regulations state that occupation is only permitted to be provisional, temporary control and is only meant to last while armed conflict lasts.

International law, including the Hague Regulations and the Geneva Convention, which pertains to conduct during armed conflict and protects civilians not taking part in hostilities, sets out provisions that protect the rights of those living under occupation.

Under international law, an occupying power is supposed to introduce as few changes as possible and not alter the status quo of the territory from before it was occupied. The occupier is also supposed to adhere to regulations including the protection of occupied peoples’ property and allowing the flow of humanitarian aid.

What has happened in the hearings so far?

An occupying power should not move its own people into the territory it is occupying, under international law.

Israel has been criticised on many occasions for failing to adhere to these principles during its occupation of the Palestinian territories. Over the decades, for example, more and more illegal settlements have been built and there are now around 750,000 Israeli settlers living on Palestinian land.

Israel occupied the West Bank and East Jerusalem after the Six-Day War in 1967. These regions were formerly under Jordanian control.

Israel made its annexation of East Jerusalem official when it passed the Jerusalem Law in 1980, stating that East and West Jerusalem combined were the capital of Israel.

Despite several peace efforts such as the 1993 Oslo Accords and the 2000 Camp David negotiations since then, Israel has not withdrawn from the West Bank. The Oslo Accords resulted in the creation of the Palestinian Authority (PA), which was supposed to be temporary. The West Bank was divided into Areas A, B and C in 1995, denoting how much control the PA has in each. A final agreement, which was supposed to be reached five years later, never came into existence.

Israel occupied Gaza, which had been under the control of Egypt, in 1967.

However, in 2005, Israel technically withdrew from Gaza under then-prime minister Ariel Sharon’s disengagement plan, pulling out 9,000 Israeli settlers, when the situation there became too tense.

Israel and its supporters, therefore, claim it was no longer occupying Gaza.

However, the Gaza Strip has been under an Israeli land, air and sea blockade since 2007, which is why the UN, Amnesty International and other aid organisations and think-tanks still refer to Gaza as an “occupied territory”.

At the ICJ hearings this week, South Africa accused Israel of practicing an “extreme form of apartheid” against Palestinians. It isn’t alone.

Many commentators have used the word “apartheid” in connection with Israel’s occupation of Palestine. The word literally means “apartness” in Afrikaans – a policy of separation. Apartheid was implemented against Black residents of South Africa from the 1940s until its abolition in the early 1990s.