"All of that means BDS [boycott, divestment and sanctions]! Urgent, immediate BDS by all states and UN bodies. It cannot be interpreted in any other way in my view." Prominent UK human rights lawyer Daniel Machover breaks down the ICJ ruling on the nature of the situation in the occupied Palestinian territory and the duties which now fall on third party states to comply with the ruling. Support us: https://www.palestinedeepdive.com/sup... Daniel Machover is a leading British human rights lawyer who has represented clients in some of the most high profile civil cases in the UK including the Grenfell Tower Inquiry. Daniel is a partner at London law firm Hickman and Rose and a co-founder of Lawyers for Palestinian Human Rights. He has previously managed to obtain arrest warrants in the UK for former Israeli foreign minister Tzipi Livni and former Israeli general Doron Almog, who are both accused of war crimes against Palestinians under occupation.
Transcript
Intro
0:00
well welcome to this edition of Palestine deep dive and today we're joined by Daniel mover we've been joined
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by Daniel before and it's great to see you again Daniel um he is of course one of the UK's leading sisters specializing
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in police and human rights law uh he is head of civil litigation of partner of
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Hickman and Rose solicitors in London and was the co-founder of lawyers for Palestinian human rights which was
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founded back in 1988 now Daniel's pioneering human rights work has seen him bring cases to
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the court of appeal the Supreme Court and to the European Court of Human Rights and he's also previously managed
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to obtain arrest warrants in the UK for Israeli political and Military figures
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accused of war crimes against Palestinians under occupation and that's
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very much the issue that we're going to be trying to address today uh because as you know as we all know last week the
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international court of justice issued its advisory opinion on the legal
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consequences arising from Israel's policies and practices in the occupied Palestinian
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territories and the consequences of Israel's conduct for other states following an 18month process uh there
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were public hearings more than 50 States including Palestinian three international organizations
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participated uh this long awaited advisory opinion stated that Israel's occupation of Palestinian territories is
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a clear clear violation of international law so not only did we have the icj um
1:35
advisory opinion but we've also of course been um anticipating what may be
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coming from the international criminal court uh in respect of arrest warrants
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for prime minister Netanyahu defense minister YF Galant and leaders of
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Hamas Daniel welcome and thanks very much for joining us i' I'd like to begin
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by asking you um something about the background to last week's ruling by the
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international uh court of justice because for all of us who have been
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watching this for so long I mean we all thought that uh this was already established uh international law that
2:20
affect that the uh the occupation was illegal but why is this judgment in particular
The significance of the ICJ ruling
2:27
important well first of all it wasn't established it was argued and one could have there
2:33
are a range of very important legal arguments uh some of which had been taken on by various
2:39
bodies and various un special rapporteur had made reports um asserting various
2:45
matters but that is completely different order to the top the world Court um the
2:52
court that is part of the UN legal system um issuing this advisory opinion
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so we we've just it's a sea change in respect of a whole series of absolutely fundamental
3:05
findings going well beyond the wall advisory opinion 20 years ago the wall
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advisory opinion said some very important things and was not fully um
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followed up in all the fora in which it could have been both at the United Nations and um in National legal systems
3:24
but these are different order findings different order authoritative findings which will have legal impact and I can
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go through them but I think the important thing to say is doesn't matter how many un resolutions there have been
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outside of uh Security Council binding resolutions under chapter 7 and a whole
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series of very important resolutions which were referred to by the way in this authoritative advisory opinion The
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Advisory opinion is a different order within uh at at international law level
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it will be in my view appear now in many domestic and
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international settings as the findings on which we build what happens next and
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what happens next is obviously the the big question well thank you and and but in
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Practical terms um what difference do you think this ruling could make I mean what implications are there for
“The implications of this ruling are massive!”
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countries such as the UK for instance in terms of trade in terms of military
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sales um they should be mive um unfortunately I don't think they'll
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be immediate they should be immediate it will take a long time to battle through this because this hits the politics of
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the relationships between all countries and Israel and that and countries are going to be very
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reluctant to re wrongly in my view to review and change their policies in
What do the rulings say?
4:51
order to comply with their obligations as spelled out in this ruling and that's
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that's the job of everyone who who in good faith wishes to see this judgment
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um this advisory opinion I should say um fully implemented in its in in the its
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legal consequences I think it's important for your viewers listeners to
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to just for me to spell out some of the key things so forgive me I'm going to read the key things that I think are the
5:22
most important I won't read everything because there isn't time and by the way this these legal arguments would need
5:29
maturing and and developing by experts greater than me um in in international
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public international law and its legal consequences but I think I have enough insight to to be able to sort of kick
5:42
off the debate for for people to add to um uh so the occupation the continued presence
5:50
of Israel in the opt is unlawful there's an obligation to bring that unlawful
5:55
presence to an end as rapidly as possible those are the words Israel must
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cease all settlement activities evacuate all sets
6:07
immediately it has to make reparation for the damage caused and there's a long list of obligations in the section
6:13
towards the end on Israel which include by the way the duty to allow the Palestinians to exercise
6:19
self-determination and to the right to return of those displaced since 1967
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from the opt uh in that sense the court perhaps went further than many expected um then we come to those the
6:34
duties of the various third party States and the international organizations and
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those are spelled out in the advisory opinion and this is where we get to the to the really interesting aspects for me
6:46
of the of the of the judgment and here the The Advisory opinion and here I do really want to quote because I don't
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think this has been appreciated by many audiences so forgive me the key paragraphs I won't read the whole of it
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is 278 and 2 79 these are when the um the the court is addressing what its
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advisory opinion means for third party States there's a section on the UN but this isn't it this is this is this
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section and I will read not only is there an obligation not to recognize all of the unlawful matters
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and wrongful acts that I've listed earlier the court considers that the duty of distinguishing dealings with
7:25
Israel between its own territory and the opt encompasses interia the obligation
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to abstain from treaty relations with Israel in all cases in which it proposed
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to act on behalf of the opt or a part thereof on matters concerning the opt or
7:41
a part of its territory to abstain from entering into economic or trade dealings
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with Israel concerning the opt or parts thereof which may entrench may entrench
7:53
its unlawful presence in the territory to abstain in the establishment and maintenance of diplomatic missions in
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Israel from any recognition of its illegal presence in the opt and to take
8:04
steps to prevent trade or investment relations that assist in the maintenance
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of the illegal situation created by Israel in the op then it goes on they're
8:16
also under an obligation not to render Aid or assistance in maintaining the situation created by Israel's illegal
8:22
presence in the op it is for all states while respecting the charter to ensure
8:28
that any imp pediment resulting from the illegal presence of Israel in the opt to
8:33
the exercise of the Palestinian people of its right of self-determination is brought to an end now all of that means
8:40
BDS yes urgent immediate BDS by all states and by the UN bodies it can't be
8:47
interpreted in any other way because in law in my view what this involves and as I say International lawers can know Pine
8:54
further you have to audit your relations by reference to this advisory opinion
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what do we do or not do that would uh
9:06
require that this advisory opinion requires in order to meet our International obligations and for me
9:14
everything that one does with Israel at the moment renders Aid or assistance it's it's cut off Diplomat I'm I'm not
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I'm being very serious here that I don't see how you can interpret this advisory opinion as anything but a call to cut
9:29
off diplomatic relations because it aids and assists Israel to have diplomatic relations to cut off trade relations to
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cut off cultural relations to Institute the most comprehensive uh like South African type
9:43
and Beyond sanctions against the state of Israel because everything that one
9:48
does in relation to Israel currently AIDS or assists it in maintaining its
9:53
current illegal situation unless Israel understands that it has become a pariah
9:58
state and that these are actual requirements on state then we're not
10:04
going to shift the dial um and and and and I I have yet to hear a compelling
10:11
argument that says it doesn't go as far as I have elaborated Daniel that's
10:16
absolutely that's very very interesting indeed because it actually um you mentioned South Africa um the general
10:23
assembly uh passed a resolution uniting for peace calling for uh sanctions
10:28
against South Africa so under the basis um of that icj ruling um the general
10:35
assembly could do that again so could this I believe it could and it should um
The United Nations could act on this ruling
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there's also an argument for reconstituting the special committee uh on a parthe which was a special
10:47
Committee created during that era and which which really sort of developed all the um the sanctions policies that were
10:55
then taken on so there's a there's a kind of engine room that the general assembly could reconstitute which is the
11:02
special committee um and that in my view again as you rightly said there is a
11:07
series of actions the general assembly should and I believe there's a very
11:12
great likelihood it will begin to Grapple with these issues there was a disappointing response by the Secretary
11:20
General um I think just basically referring um the icj advisor opinion on
11:26
to the UN bodies as requested um but teror didn't really engage with the
11:34
issues that I've raised um or that you've raised yes I I yes you do you do wonder how quickly the advice within the
11:41
system would have moved on that actually I'm not I'm not trying to provide an excuse for him but that's the
11:47
only you do wonder sometimes it takes it takes the system a little bit of time to catch up but I mean presumably as as the
11:55
as as the ramifications of this become clearer because also you mentioned the part of there the icj were actually very
12:00
clear about the apartheid system that's being operated effectively in the occupied territory too they were I I
12:06
mean I would I would like to it to have been even clearer but I think there is there is well I I know there is no doubt
12:13
and what you need to do in that respect is just read paragraphs 225 and 229
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together um 225 sets out um the
12:25
um the provision of the um the relevant treaty the uh International treaty for
12:31
the elimination of discrimination um the convention s um
12:36
for short um and and that includes in its definition of um discriminatory
12:42
practices the practice of apartheid and then later in 229 it finds that that
12:47
article article three of s has been violated by the systematic policies and that's after a long analysis of the
12:54
discriminatory policies within the ruling so yes there has been an
12:59
authoritative ruling by the icj that the practices in the opt breach the
13:04
prohibition against the parid quite quite incredible um and I
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suppose the next question would be I mean given that in the past sections of
13:17
the International Community have ignored rulings by the icj and I'm thinking um
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particularly about the 2004 ruling that the separation wall that the Israelis were building um along and through
13:29
Palestinian territory in the West Bank was in breach of international law I mean that was nothing really was done by
13:35
the West um in response to that ruling but do you think that this time things
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may be different I mean give given the scope and the depth of of these rulings
13:48
they're pretty profound um and even some count West might decide to ignore them other countries will be getting very
13:55
very public with all of this won't they I I agree um I think I think you've answered your own question I mean the
The ICJ ruling in 2004 vs the 2024 ruling today
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disappointing is a kind of understatement about the response of of third party states to The Advisory wall
14:08
opinion 20 years ago I I find it difficult to imagine
14:14
that we will have as poor a response to to to compliance and to Legal followup
14:23
by both within the general assembly and across different un bodies and by
14:28
individual ual States I I I hope and believe that individual states will
14:34
follow up on the kind of actions that turkey took some time ago in terms of its trade relations with Israel
14:40
following you know the appalling events in Gaza so I think the combination of
14:45
what is happening right now on the ground and um in Gaza and elsewhere across the West
14:53
Bank in fact um which is just the level of viol ations of international criminal
15:01
law and of of uh legal duties on the part of Israel is Legion um and this
15:08
advisory opinion will combine to create far more momentum than existed post 2004
15:15
uh but we'll have to wait and see I mean his history will certainly be and legal history will be a very severe judge uh
15:23
or and condemn in my view um the failure because it carries um
15:29
you know carries consequences failing to to make sure that international law is
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abided by does carry consequences of course it carries consequences for the most vulnerable and for the most
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vulnerable States um but it also carries further consequences about the the very
15:48
um it's an existential kind of threat to international law in the future um now
15:54
of course powerful states especially the five permanent members of the Security
15:59
Council May care less um currently but you know uh the the the overall impact
16:07
of this for future international relations Is you know without getting pompous is pretty significant but as I
16:14
say the problem is that the the kind of collective blind spot of the
16:19
International Community when it comes to Israel Palestine is so huge that um one
16:25
can't um be certain that the right thing will happen and and we'll just have to wait and see but I believe there will be
16:32
a lot of um legal consequences I mean you do separate you kind of Wonder with
16:38
the with political figures um with civil servants with with people who are
16:46
responsible for making key decisions you know sometimes the idea of self-preservation or thinking about
16:52
their Futures must come into their minds and I was just briefly as you were saying that thinking back to the previous foreign secretary David Cameron
16:59
and advice over armed sales to Israel whether Israel was meeting the international standards for these sales
17:05
to continue the advice that they refused to publish the advice on that that David Lamy the new foreign secretary has said
17:12
that he will do I think but you to what extent I wonder on both on that question
17:19
and on the general one which is you know this what you're saying now is
17:24
presumably the kind of advice that the foreign secretary should be getting from
17:30
his senior civil servants and if not there is a real real failure and if
17:36
they're getting the kind of advice that you are you are giving now um to to
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viewers on Palestine Deep dive you know what would what would your reaction as a minister
17:46
be my reaction as a minister should be this is a very serious moment for
How the UK Foreign Secretary and western states should react to this ruling
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international relations I'm going to liaz with Partners to see what we can do collectively to to
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ensure that these um duties on us are properly discharged and so that we get
18:06
the quickest possible um a compliance by Israel with its section of what its
18:11
duties and requirements are as authoritatively handed down by the icj
18:17
in its advisory opinion but you know I I I I just think there's too much real
18:24
politique that will interfere in in the pure legal advice that
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a the foreign secretary should be getting and the foreign secretary should be responding to in in like manner so um
18:38
you know we've got several impediments to say the least to this going the way that it should do and ought to but um
18:46
we've just got to keep pushing from the outside and third third party States who are going to respond in good faith and
18:52
in the way that we've just described need to keep having a dialogue with all the other states and there will be
18:59
within the European Union who will take this at a good faith um level uh possibly states such as
19:07
Slovenia Spain even Ireland you know they've already responded in a measured
19:13
way um in the case of Ireland I saw the the the the statement made by the t-shock not long you know within several
19:20
hours of the advisory opinion so let's watch out see what the public statements are see what the states do and see where
19:27
the collective um State you know supernational State organizations such
19:33
as the um organization you know the Arab League the organization of Islamic States uh the African Union um the
19:41
European Union the organization of American states you know there are collective um you know bodies such as
19:48
that and individual states who could start to really move the dial on this
19:54
and it's really now in the hands of states and the UN agency and bodies to
20:00
to pick this up pick up the Baton that the advisory opinion has literally thrown down and run with it and uh and
20:07
Civil Society is going to be part of that endeavor and and the first thing we need to do and I'm I'm I'm trying to do
20:14
in participating this is spread the word about what it actually says and what it should
20:20
mean this of course at a time when President Netanyahu arrives in in Washington um he arrived yesterday we
20:28
noticed that he wasn't necessarily greeted with uh um by senior Administration level figures at the
20:34
airport but he is going to be meeting the president and there'll no doubt be pictures of them both together and very
20:41
likely this will send a signal from Netanyahu that actually doesn't really matter what the icj says or the ICC has
20:49
to say or any or the or the rest of the world um he's he's in Washington and
20:55
nothing's changed but do you think that things things are changing do you think that all of this must be having some
21:03
kind of effect on people within the Israeli government concern they must be at least concerned about what the future
Is this having an impact on Israel and Israeli leaders?
21:09
holds yeah I think they are because that they wouldn't be they wouldn't have been spying on the international criminal
21:14
court in the way now revealed they wouldn't have been responding in the way they have and and uh lobbying
21:20
governments to to interfere with all these legal processes including the current arrest warrant application at
21:26
the ICC they wouldn't be mounting you know massive diplomatic efforts um and
21:32
political efforts to downplay every single legal process including the South African case uh in relation to the
21:40
genocide convention brought at the icj if they didn't if they weren't concerned about leaving things to lie and just
21:47
literally ignoring everything without all those efforts so yes I think it's having an impact is it having the
21:52
desired necessary depth of impact no because we see daily outrages and um you
22:00
know significant in my view certainly very powerful evidence of more and more
22:06
war crimes more and more evidence of uh genocidal acts of crimes against humanity just the last 24 hours I mean
22:13
just every 24hour period almost that one looks at in fact every 24-hour period
22:20
because of the maintenance of the of the starvation policy um let alone everything else that happens on a daily
22:26
basis reveals more and more so Mark I think the problem is that Israel isn't
22:31
worried enough yet to to to have the kind of impact
22:37
that you know the arrest warrants need to be uh once the ink dries on the
22:42
actual arrest warrants which I hope and believe will happen later this year
22:48
delayed by the current processes instituted by the UK government the previous UK
22:54
government you may see the kind of impact that should have happened many months ago which is realizing that they
23:01
are now not able to travel to any Rome statute country once the arrest warrants are granted that's it for netan that is
How long can the appeal process to the ICC take?
23:08
actually Daniel that is a question I should have asked you earlier which is the appeals process the delays but how
23:14
long can those delays be months unfortunately so what's just happened uh
23:19
yesterday is a is a sort indication of some kind of timetable so the UK government its predecessor applied for
23:27
and got the right to put in representations that the court has no jurisdiction because of the Oslo issue
23:34
um that um because of the general election the previous UK government actually got the deadline extended from
23:40
the 12th of July to the 26th of July so this coming Friday as I speak to you is the deadline for the current UK
23:48
government to put in its Oslo Accord issue reason why the court shouldn't
23:53
Grant these arrest warrants um as a result it's opened the door to this even if the UK okay the new government now
23:59
decides to withdraw and repudiate that um set of legal arguments and to say in
24:05
fact go ahead the oso issue is is a dud ignore what our predecessor said um and
24:12
just carry on um the door's been opened So Yesterday a whole Legion of other um
24:19
requests for intervention on this issue was granted and of course many of the um
24:25
bodies and individuals granted that right by the court yesterday um will be
24:30
against the the the the original British government's intervention saying the Oslo um argument by the way Germany put
24:38
in a whole different argument about a week ago saying it didn't have jurisdiction for other reasons to do
24:43
with a continuing conflict and not being able to Grant a restaurant so there's a
24:48
whole series of interventions designed to either Scupper the whole process or
24:54
or delay it it certainly delayed it already so we have seven countries which by the 6th of August and
25:02
a whole list of other individuals and organizations including UK lawyers for Israel um who have a who are going to be
25:08
putting in their views to the court on the 6th of August they will then need to consider all of that sit and uh ponder
25:17
over it for weeks or months and so I don't see there being a decision on this issue until September at the very
25:24
earliest it could get further into the year I really hope I'm wrong and they
25:30
may they can turn this around in August but that would be optimistic so I think
25:35
what we're looking at um realistically is a decision from the
25:41
international criminal court on the arrest warrant application by the prosecutor sometime in September or or
25:49
later right well I mean that's um I mean you don't think that some of these
25:55
appeals could be looked at as being um vexatious I mean you know such as as you
26:02
mentioned um Oslo um being the British government's basis for an appeal which
26:08
does by know by the sound of things seem you know rather concocted even the lawyers putting it together probably
26:14
didn't think it's gonna work I mean Mark the unfortunate aspect of this is that
26:20
and I don't want to go back into the ancient history of this the whole way in which this um jurisdiction was handled
26:27
by the international Criminal Court by the predecessors to the current chief prosecutor uh was very cumbersome and
26:34
long and it resulted in um and this is the issue really in response to what you
26:39
just said it resulted in the court making a ruling saying that the um the
26:45
court had the the jurisdiction the chief prosecutor should uh mount a a proper
26:50
investigation into the allegations put forward um by the state of Palestine when it referred itself uh for invest
26:58
tigation but it said expressly and therefore left the door open we we we've
27:04
heard these arguments about the oso Accords preventing there being in fact
27:10
criminal cases but that's a decision for a later date so they actually knew that
27:15
there this issue existed back in February 2021 March 2021 when they addressed this and they left the door
27:22
open and what's happened is Nobody Until just um the Dying Days of the previous
27:29
conservative government walked through that door unfortunately that door was left open by the the change that granted
27:38
or that pushed pushed matters forward finally in 2021 so there you have it you
27:44
know it's still doesn't mean that the argument is a strong one but I'm afraid there was a procedural issue there in
27:52
that the court left this door open and uh which it should have firmly shut back in 2021
27:58
and I can go into why I think it's a bad argument but you know you you you and um your readers listeners viewers will have
28:05
an opportunity to read literally dozens of arguments on this um from the 6th of
28:12
August and I'm sure many of these individuals and organizations will publish their detailed views in a
28:18
nutshell in my view um States when they enter into the process confer
28:23
jurisdiction they don't delegate jurisdiction and that I would say is the short point and that's why this idea of
28:29
delegating something you don't have is just should be a dead
28:36
duck Daniel finally because we're sadly we're running out of time but it'd be remissive me not to ask you about the
28:41
current situation because in a previous answer a few moments ago you talked about um crimes being committed every 24
28:49
hours the continuing crime of um of of food um and and and and starvation yes
28:55
um the multitude of um of of crimes that are being committed against civilians
29:01
today we've learned that um uh IDF soldiers are being vaccinated against
29:08
polio and that polio amongst um Palestinian uh
29:14
civilians um this is just a new horror um it is polio has been discovered um in
29:21
all the Wast and sewage which is lying uncollected everywhere the most appalling conditions as as you know in
29:28
Gaza um compounded by this latest horror where does this sit in terms of
29:35
um international law the fact that the Palestinians aren't being inoculated
29:40
against polio but soldiers are well it's it's obviously just a moral and legal
“A moral and legal outrage” that polio has been discovered in Gaza
29:47
outrage and more outrage upon more outrage look U an occupying power as
29:52
Israel is and again it was made clear by the way at the icj that um Israel never
29:58
ceased to be an occupying P at any point and it's boots on the ground occupation currently anyway but but you know you
30:06
you just have a positive duty to ensure and not just say oh we've got these um
30:13
we've got this ready these inoculations ready um and you know they're sitting in some storage facility I understand that
30:20
the Israelis have responded by saying yes of course you know we'll organize this but in fact it's not being rolled
30:26
out in fact the conditions in which polio vaccines can be applied in the
30:32
middle of this horrific daily outrage are just not they're not they don't they
30:38
don't it just doesn't arise the possibility of doing so and they know that full well so they've got a positive
30:44
Duty um as a series of positive duties as an occupier that they have serly
30:51
breached um and this is yet another really disturbing example and we will
30:57
learn more and more such examples because um you know you can't decimate a country in the way that
31:03
the Israeli military assault on Gaza and the previous Siege did without causing
31:10
these kind of um uh Health crises um so
31:15
you know I'd be very surprised if there a series of other horrible conditions
31:21
and diseases which are spreading and which the um Israeli authorities have the responsibility to First of will
31:28
never allow to happen but secondly to deal with like the vaccinations on polio
31:33
so um it's almost impossible to to to sort
31:39
of fully Express how utterly outrageous this
31:45
is well on that note um we have to say thank you very much to Daniel for
31:50
joining us today um I think we come away much better um aware and educated as to
31:58
what the icj rulings uh mean what the ICC arrest warrants could mean too and
32:05
all that is going on um thank you very much Daniel for joining us and thank you
32:10
to all of you uh who are watching please do spread this far and wide um there are
32:16
not very many places where you get to uh read and hear uh in such depth um uh
32:23
with such knowledge actually um what is what is actually going on and it's very useful for all of us who are concerned
32:30
and who want to try and do whatever we can so please um do uh spread this
32:36
amongst your uh colleagues and friends and thank you for very much for joining us thank you very much to Daniel
32:42
again thank
32:56
you for
