Dhaka,  Tuesday
25 June 2024

Legal and Diplomatic Stance of Bangladesh on the Palestinian Occupation Issue

Md. Shawkat Alam Faisal

Published: 22:10, 20 May 2024

Legal and Diplomatic Stance of Bangladesh on the Palestinian Occupation Issue

Photo : Messenger

Bangladesh was among the five South Asian nations that supported the resolution requesting an Advisory Opinion (AO) from the International Court of Justice (ICJ) regarding Israel’s occupation of Palestine. Subsequently, Bangladesh submitted its Written Submission (WS) to the ICJ and participated in the Oral proceedings.

Bangladesh's stance on the Palestinian issue is grounded in its historical struggle for self-determination, a unique instance of remedial secession outside the colonial context. The Proclamation of Independence of Bangladesh, included in the Seventh Schedule of its Constitution, emphasizes self-determination as a key justification for its independence.

Interestingly, Bangladesh's declaration on Article 1 of the International Covenant on Economic, Social and Cultural Rights limits its interpretation of "self-determination" to contexts of colonial rule, foreign domination, and similar situations. Nonetheless, Article 25 of the Bangladesh Constitution pledges support for oppressed peoples fighting against imperialism, colonialism, or racialism, which Bangladesh referenced in its Oral Statement on 20 February 2024, to justify its participation in the current Advisory Opinion proceedings.

Since its independence, Bangladesh has been a staunch supporter of the Palestinian cause, rejecting Israel's offer of diplomatic recognition. Bangladesh is one of 28 United Nations (UN) member states that neither recognize Israel nor maintain diplomatic relations with it. Furthermore, Bangladeshi passports are not valid for travel to Israel, and vice versa. Notably, in mid-2021, Bangladesh removed except Israel" from its passports, though its Foreign Minister at the time cautioned that travelling to Israel with a Bangladeshi passport would result in legal consequences.

Bangladesh’s involvement in the Palestinian cause dates back to the 1973 Arab–Israeli War and was strengthened during the second Summit of the Organization of Islamic Cooperation in 1974. This engagement has been crucial for solidifying Bangladesh's international status, particularly among initially resistant Arab states. Bangladesh's support for Palestine has been consistent across various multilateral forums.

In addition to political support, Bangladesh has also engaged in judicial fora. It participated in the oral proceedings of the ICJ’s Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory (Wall Opinion) and expressed its intent to intervene in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in Gaza (South Africa v. Israel). Alongside South Africa, Bolivia, Comoros, and Djibouti, Bangladesh referred the Palestinian situation to the International Criminal Court under Article 14 of the Rome Statute.

Consequently, its participation in the current Advisory Opinion proceedings was anticipated, with expectations regarding how it would contribute to the legal questions posed by the UN General Assembly to the ICJ on the Legal Consequences arising from Israel's Policies and Practices in the Occupied Palestinian Territory, including East Jerusalem.

Bangladesh articulated its position on the Advisory Opinion concerning the Occupied Palestinian Territory through two Written Statements dated 24 July 2023 and 25 October 2023, and an Oral Statement on 20 February 2024. 1st Written Submission primarily addressed the legality of the occupation, asserting that Israel’s policies and practices are unlawful.

Bangladesh's submission can be divided into three parts:
(I) introductory considerations,

(II) the legality of the occupation, and

(III) the consequences of the illegality.

Bangladesh raised issues regarding the ICJ’s competence, the nature of the questions posed, the adequacy of evidence, and the potential impact of the Advisory Opinion on political peace negotiations. Bangladesh asserted that there are no compelling reasons for the Court to decline rendering the opinion, as historically, the Court has never refused to render advisory opinions.

It suggested that the current Advisory Opinion should not fall within any exceptional reasons to decline, as highlighted in the Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict.

Regarding the nature of the question and the Court propriety, Bangladesh indicated that the Court could refer to the Wall Opinion to address jurisdictional and judicial propriety concerns. In the 2nd Written Submission, Bangladesh argued that legal and political questions are often intertwined and that the presence of political questions does not negate the legal nature of the issues. It affirmed that the Court had sufficient evidence from UN sources to render the Advisory Opinion.

Bangladesh emphasized two points regarding the Advisory Opinion’s potential impact on political peace negotiations: (i) it contradicts the law of state responsibility given Israel’s unlawful conduct, and (ii) such negotiations have been largely unsuccessful. Bangladesh contended that future solutions for the Palestinian people should be based on international law, without them having to negotiate their freedom under unlawful conditions.

The Second Question in UNGA Res 77/247 asked how Israel's policies and practices affect the legal status of the occupation and the legal consequences for all States and the UN. Bangladesh proposed a normative framework for determining the legal status of the occupation and assessed Israel's occupation in light of this framework.

Bangladesh highlighted that the legality of occupation is still debated and countered the argument that occupation can never be illegal. It proposed two frameworks, based on reports by Special Rapporteurs Michael Lynk and Francesca Albanese, for assessing the legality of the occupation. Lynk's four-part test and Albanese framework, including three peremptory norms, were presented as appropriate for the Court consideration.

Bangladesh justified endorsing the Lynk framework by its grounding in international law principles and the illegality of occupations maintained by unlawful conduct. It drew parallels with the ICJ’s finding of illegality in South Africa’s mandate in Namibia. Bangladesh supported Albanese’s framework, which emphasized the prohibition of territory acquisition by force, regimes of alien subjugation, and respect for the right to self-determination, all recognized as jus cogens norms.

Bangladesh argued that Israel’s occupation policies violated both frameworks and outlined the legal consequences, stating that Israel must end its occupation, provide assurances against repetition, and make reparations. These obligations were categorized towards Israel, other states, and the UN, drawing from the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts.

Bangladesh’s submission underscored the Palestinian right to self-determination, supported by various international recognitions and previous ICJ opinions. Although it did not fully analyze this right, it highlighted Israel's violation of this right and the obligations of Israel, other states, and the UN to ensure its realization.

Bangladesh's omission of a detailed response to the First Question on self-determination was a missed opportunity to present its unique perspective. Overreliance on Special Rapporteurs reports also limited its ability to present a novel interpretation of the law of belligerent occupation. Nevertheless, Bangladesh's participation in the current Advisory Opinion proceedings is symbolically and legally significant, reaffirming its longstanding position on the Palestine question and contributing to the deliberation of the Court.

The writer, Md. Shawkat Alam Faisal is an Apprentice Lawyer at the Bangladesh Bar Council.