Presentation of the Republic of Cuba to the International Court of Justice

Presentation of the Republic of Cuba to the International Court of Justice in relation to the Request for an Advisory Opinion on the following questions:    

a) What are the legal implications deriving from Israel’s continued violation of the right of the Palestinian people to self-determination, longstanding occupation, settlements and annexation of the Palestinian territory occupied since 1967, including the measures aimed at altering the demographic composition, the nature and the status of the Holy City of Jerusalem and the adoption of related legislations and discriminatory measures?

b) How does Israel’s practices and policies mentioned in paragraph 18 (a) affect the legal status of the occupation and what legal implications will such status have for other States and for the United Nations?

The Hague, February 21, 2024

Mr. President, distinguished members of the Court, it is an honor for me to address you on behalf of the Republic of Cuba.

On July 25, 2023, the Republic of Cuba presented its written submissions as part of the Advisory Opinion on the Legal Implications resulting from Israel’s Practices and Policies in the Occupied Palestinian Territories.

Our delegation appears before this solemn sitting as an expression of Cuba’s genuine interest in and commitment to peace and based on its historical and unconditional solidarity with the peoples that are subject to colonialism and foreign domination.

The Palestinian people, its girls, boys, women and civilian population as a whole, continue to be massacred due to the illegal use of force by Israel, the Occupying Power.

All this takes place with the complicity of countries such as the United States of America, responsible under international law for genocide, war crimes, crimes against humanity and the Apartheid regime that determines where people can live, work and move around depending on their ethnic and religious backgrounds.

Honorable Magistrates, we and you bear the high moral, historical and legal responsibility to pronounce ourselves in a clear, transparent and forceful manner on the ignominious situation of the Palestinian people and to demand international responsibility for what is happening in the occupied territories.

The current context highlights the importance of the questions circulated by the General Assembly of the United Nations through its resolution A/RES/ 77/247 of December 30, 2022.

The presentation of the Cuban delegation has been structured as follows:

In the first part we will discuss the essential legal elements that should serve as the basis for establishing the international responsibility of the occupying power and all other international actors involved.

In the second part we will focus on the legal implications and consequences that should be exacted for such internationally wrongful acts or omissions.

Finally, on behalf of the Republic of Cuba, I will present our conclusion on this proceeding.

FIRST PART

Honorable Magistrates, the violations of the ban on the threat or use of force, equal rights and free determination of peoples have been amply documented before the international community and this very Court.

Israel’s occupation of Palestinian territories is an internationally wrongful act; the reiteration and duration of which aggravate the responsibility of the occupying Power before the Palestinian people and the international community.

The prohibition to acquire territories by threat or the use of force is a rule of customary international law with broad regulatory and jurisdictional recognition. This prohibition applies regardless of whether the territory is acquired as a result of an act of aggression or self-defense.

The United Nations Charter, which is the basic international legal instrument for the new international order and the contemporary international law, is very clear in this regard. 

This treaty, of which the Statute of the International Court of Justice is an integral part, establishes in Article 2.4 that every State shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

The Charter itself, in Article 1.2, recognizes as one of its purposes "respect for the principle of equal rights and self-determination of peoples", which are systematically and flagrantly denied to the Palestinian people. These violations of general customary international law stand erga omnes.

In relation to the specific question before the International Court of Justice, it should be pointed out that since the adoption of resolution 242 (1967) of the Security Council, it was agreed that Israel’s armed forces would withdraw from all the territories occupied during the 1967 conflict and that the 1949 Armistice Line (the Green Line) would be recognized as the demarcation of the borders between Israel and Palestine.

The occupation of the Palestinian territories is also considered as a wrongful act of annexation in accordance with the provisions contained in resolutions 476 (1980), 478 (1980), and 497 (1981) of the Security Council, which state that the acts of Israel oriented to the annexation of East Jerusalem and the Golan Heights are null and void and should not be recognized by States. 

These spurious attempts have also included maneuvers to change the international status of the Holy City of Jerusalem.

Some States not only recognize and accord legal status to Israel’s policies and practices, but act with complicity and blatant impunity to prevent the international community, including the United Nations, from stopping the ongoing genocide.

Under the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by United Nations General Assembly resolution 1514 (XV), the Palestinian people have the inalienable right to determine their own political, economic and social destiny.

This is in keeping with the recognition of equal rights and self-determination of peoples, peremptory norms endorsed in the United Nations Charter, the Human Rights Covenants and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, in conformity with the United Nations Charter, agreed upon by resolution 2625 (XXV) of the United Nations General Assembly of October 24, 1970.

The presence of Israeli settlements in the occupied territories, the forced changes to the demography of the Palestinian people through land occupation and forced displacement of people, the construction of the separation wall, the control exercised over their natural resources and the restrictions imposed on their mobility, undermine and deny the ability of Palestinians to exercise their right to self-determination.

Israel is also in violation of resolution 242 (1967) of the Security Council and the Oslo Accords.  These accords state that “no party shall commence or take any step that would modify the status of the West Bank and the Gaza Strip, pending the outcome of negotiations on the permanent status.”

The destruction and appropriation of property in occupied territories, which are not justified by military necessity and are carried out on a large scale, unlawfully and arbitrarily, constitute grave breaches of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and therefore constitute a war crime.

The Palestinian question demands a clear statement on the legal implications resulting from the non-applicability and violations of the Fourth Geneva Convention of August.

Land, sea and air blockades constitute collective punishment and are extreme violations of freedom of movement and the enjoyment of economic, social and cultural rights.

Collective punishment is expressly prohibited by international humanitarian law and is incompatible with several international human rights law provisions.

The written submission presented by the Republic of Cuba to the International Court of Justice on July 25, 2023, provides well-documented evidence of all of the above, particularly the serious violations of the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948.

The genocide against the Palestinian people is not limited to the current stage of the extermination war being waged by Israel. All this with the complicit attitude of the United States of America, which prevents the international community from acting to protect the Palestinian people. The justifications for fighting terrorism and exercising the right to self-defense are deceitful when they are raised by the aggressors themselves.

As argued in our July 2023 Brief, and all the more evident under the present course of events, from the point of view of legal implications and consequences, these events should not be analyzed in a piecemeal fashion.  They are all part of a fully articulated state policy implemented against the Palestinian people for decades.

Taken as a whole, this institutionalized violence, which makes no distinction between civilians and combatants, is part of a broader policy that also includes, in a systematic and organized manner: massive confiscations of land and property, unlawful killings, extrajudicial executions, torture, administrative detentions, forced transfers, restrictions on movement and the denial of nationality and citizenship to the Palestinian population.

There is also a discriminatory economic and cultural policy aimed at impoverishing the Palestinian population and denying the realization of their fundamental human rights.

The International Court of Justice should make a general assessment of this situation so as to determine the legal implications resulting from it. In this regard, the Republic of Cuba believes that, rather than an obvious apartheid regime situation, prosecuted as a crime against humanity, this is an act of low-intensity genocide that is perpetrated with systematic and effective cruelty. To qualify Israel's actions merely as acts of Apartheid would leave out the implicit intention to exterminate the Palestinian people, either in part or as an ethnic and religious group to whom the right to self-determination is denied.

In case there was any doubt about the arguments that Cuba presented to the Court in its Brief a few months ago, the current situation, that is taking place in the eyes of all, confirms the ongoing genocide.

Innocent victims, girls, boys, women, civilians in general, number in the thousands.

For the Genocide Convention to apply, the life of one single victim, or the incitement, attempt or conspiracy to commit such acts would be enough.

The Convention against Genocide also punishes the accomplices and instigators; those who veto decisions and prevent the international community and the United Nations from taking action; those who oppose an immediate ceasefire and the delivery of humanitarian aid; those who, for years, have supported each and every one of the policies and practices of Israel, the Occupying Power, which deny the existence of the Palestinian people and their rights. This agenda, to a large extent, has advanced unabatedly in the course of time.

We are convinced that this Court should not wait for the complete extermination of an entire nation before ruling on the matter. That was the intention United Nations’ General Assembly in requesting the Advisory Opinion.

The terrible situation currently facing the Palestinian people is a reminder of the urgency of a clear and consistent statement on the questions submitted to the consideration of the Court.

Israel, the Occupying Power, its allies and efficient collaborators, must take responsibility for the legal implications resulting from the sustained non-compliance with the International Law in force. 

Consequently, the analysis of the international responsibility of Israel should go hand in hand with the responsibility of the United Nations and the member States that hinder its actions, creating by sustained and continued omission an international wrongful act that aggravates and worsens a clear situation of violation of international law in the Palestinian Occupied Territories.

There should be a clear and unanimous ruling by the Court that impartially and independently establishes the legal implications resulting from depriving the Palestinian peoples from their fundamental rights, including the right to life, freedom and self-determination.

SECOND PART

Honorable Magistrates, added to the aforementioned international violations there is the indolent attitude of Israel, the Occupying Power, of ignoring the numerous resolutions and decisions adopted by the United Nations General Assembly, the Security Council and the International Court of Justice. 

In this regard, and without intending to cover all issues, our Brief to the Court contains a report on the violations of the aforementioned provisions.

In line with the foregoing and all other relevant opinions that may be contributed by other States, the main legal implication resulting from these violations of international law should be the declaration of the international legal responsibility of Israel, the Occupying Power, and its accomplices.

All this based on the series of conventional and customary primary rules of International Law that have been violated by Israel. 

Likewise, the aforementioned responsibilities and legal consequences must be established for Israel and its accomplices, in accordance with the secondary rules on State Responsibility for Internationally Wrongful Acts contained in the Draft Articles of the International Law Commission (ILC), as reflected in document A/56/10, Report of the International Law Commission on the work of its 53rd session, April 23 to June 1 and July 2 to August 10, 2001.

It would be appropriate for the International Court of Justice to provide in its Advisory Opinion that the international responsibility of Israel as the Occupying Power, covers all acts or omissions of its State bodies (legislative, executive and judicial bodies) contrary to international law and those executed by persons or entities exercising powers of public authority, acting in the absence of official authorities or under the guidance or control of the Occupying Power.

These secondary rules that govern the international responsibility of States for internationally wrongful acts clearly establish the guidelines to determine the legal implications of the internationally wrongful act.

This would motivate a strong ruling by the Court, indicating the immediate obligation of all States, in particular the Occupying Power, to comply with the conventional and customary norms flagrantly and systematically violated in the Palestinian territory, including the cessation and non-repetition and reparation for the damage caused to the Palestinian people referred to, respectively, in Articles 29, 30 and 31 of the 2001 International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts.  All of the foregoing is without prejudice to the applicable provisions of treaty law.

In addition to all of the above, the International Court of Justice should separately address the international responsibility of other States for the aid and assistance they offer to Israel.

The International Court of Justice should issue a statement indicating the legal implications incurred into by States that supply, for example, weapons to Israel.

It is an undisputed fact that certain members of the Organization violate the principles reflected in Article 2 of the Charter, not only by denying the sovereign equality and rights of the State of Palestine, but also by acting in bad faith in such a way that precludes any possibility for a negotiated solution to the conflict that, far from being resolved, has worsened over the last seventy years.

In all these years, the United States of America has systematically and consistently overused its veto to prevent any effective action by the Security Council and to ensure impunity for the Occupying Power, Israel, despite the statements of the United Nations General Assembly.

The International Court of Justice should emphasize the scope of Article 2.5 of the United Nations Charter, which states that all members “shall refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action.”

This entails the obligation of all States to abide by the decisions adopted by the Organization as a whole, particularly when the Security Council remains impassive deadlocked by the indolent attitude of one of its permanent members, the United States of America, and the United Nations General Assembly has continuously and categorically taken a stand on this question, supported by the International Court of Justice.

CONCLUSIONS

Honorable Magistrates, based on the foregoing and, especially, taking into account the unbearable situation of the Palestinian people, the Honorable International Court of Justice should take a stand, in the clearest strongest, and most forceful legal terms, in support of International Law.

The Advisory Opinion should establish the legal implications for Israel, other States and the United Nations for the violations of the norms against the threat or use of force, equal rights and self-determination of peoples; as well as of the main international human rights instruments, the Geneva Convention of August 12, 1949 on the Protection of Civilian Persons in Time of War, the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1984, and the continued non-compliance with decisions of the United Nations General Assembly, Security Council and the International Court of Justice.

Special pronouncement would be merited by the issues related to the character and status of the Holy City of Jerusalem, in light of the continuous violation by Israel and the regrettable inaction of the United Nations, a direct result of the abusive and irresponsible exercise of the veto privilege in the Security Council.

The Court should carefully think about the legal implications of these actions or omissions.  We understand that once the Court has declared the existence of a situation of violation of international law, for example, the commission of a crime of genocide, war crime or crime against humanity, there should be clear legal implications for all States that act in a way that ignores or undermines the decision or opinion of the Court.

Actions or omissions that support violations of general international law should be held to be incompatible with the exercise of any international privilege.

Honorable Magistrates, it is up to the Honorable International Court of Justice to render the peace and justice the Palestinian people deserve, without political double standards.

That is the reason why the delegation of the Republic of Cuba respectfully requests the prompt issuance of an Advisory Opinion against the many years of genocidal impunity, clearly stating the international implications and responsibilities of those who, one way or the other, contribute to the extermination of the Palestinian people.

The international community requires a pronouncement that makes it clear to those responsible that today they may use their force against the innocent civilians, but this force will not be enough to spare them from justice.

Thank you very much.