China: The Palestinian people’s use of force to resist foreign oppression is an inalienable right

We previously reported on the important statement made by Ma Xinmin, Legal Adviser to the Chinese Foreign Ministry, to the public sitting of the International Court of Justice at The Hague, Holland, on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, on February 22, 2024.

We now reprint the verbatim record of Ma’s statement, which deals with a number of key aspects of this question, strictly within the parameters of international law and in a comprehensive and forensic manner.

Ma begins by stating that:

“Dealing with the question of Palestine serves as a litmus test for the collective conscience of humanity, the wisdom of the United Nations and the authority of international law. The question of Palestine has persisted for over half a century, inflicting sufferings across generations. Countless Palestinians have been waiting in vain their entire lives, yet there remains no glimmer of hope in their efforts to restore the legitimate rights of the Palestinian people.

“China has consistently supported the just cause of the Palestinian people in restoring their legitimate rights. Chinese President Xi Jinping has stressed on multiple occasions that China calls for a comprehensive ceasefire and an early solution to the question of Palestine on the basis of the two-State solution through negotiation.”

Ma then proceeds to address the question as to whether the court, which was asked to give an advisory opinion by the United Nations General Assembly, has the relevant jurisdiction. He states: “The question of Palestine, with its origin in the mandate system under the League of Nations, goes beyond the scope of bilateral affairs between Palestine and Israel. It directly relates to the responsibility of the United Nations on international peace and security. The United Nations has a ‘permanent responsibility’ toward the question of Palestine.”

He then goes into detail regarding how Israel has been violating the Palestinian people’s right to self-determination:

“The Palestinian-Israeli conflict stems from Israel’s prolonged occupation of Palestinian territory and Israel’s long-standing oppression of the Palestinian people. The Palestinian people’s fight against Israeli oppression and their struggle for completing the establishment of an independent State on the occupied territories are, essentially, just actions for restoring their legitimate rights. The right to self-determination serves as the precise legal foundation for their struggle.

“Self-determination of peoples is a fundamental principle of modern international law enshrined in the United Nations Charter and a collective human right under customary international law. In 1955, during the Bandung Conference, the Chinese Premier and Foreign Minister, Zhou Enlai, solemnly declared ‘full support of the principle of self-determination of peoples and nations as set forth in the [UN] Charter’ and ‘took note of the [UN] resolutions on the rights of peoples and nations to self-determination, which is a prerequisite of the full enjoyment of all fundamental Human Rights’ This declaration was fully incorporated into the Final Communiqué of the Bandung Conference.”

On this basis:

“The Palestinian people enjoy the right to self-determination, which includes five main aspects: first, the right to preserve territorial integrity; second, the right to maintain national unity, that is, the Palestinian people, in its group identity, collectively enjoys and exercises the right to self-determination; third, the right to freely determine their political status; fourth, the right to freely pursue their economic, social and cultural development; fifth, the right to permanent sovereignty over natural wealth and resources.

“Every State is obliged to promote the realisation of the right to self-determination and to refrain from any forcible action which deprives peoples of that right. In their pursuit of the right to self-determination, these peoples have the right to engage in struggles, seek and receive support. On the basis of that right, the Palestinian people declared the establishment of the State of Palestine in 1988, which has been recognised by over 130 countries.

“In pursuit of the right to self-determination, the Palestinian people’s use of force to resist foreign oppression and to complete the establishment of an independent State is an inalienable right well founded in international law. Various peoples freed themselves from colonial rule and foreign oppression to realise independent statehood after World War II. Their practices serve as convincing evidence for this right. Numerous UNGA [United Nations General Assembly] resolutions recognise the legitimacy of struggling by all available means, including armed struggle, by peoples under colonial domination or foreign occupation to realise the right to self-determination. For instance, the UNGA resolution 3070 of 1973 ‘reaffirms the legitimacy of the people’s struggle for liberation from colonial and foreign domination and alien subjugation by all available means, including armed struggle’.”

This, Ma insists, should not be confused with terrorism: “Armed struggle in this context is distinguished from acts of terrorism. It is grounded in international law. This distinction is acknowledged by several international conventions. For example, Article 3 of the Organisation of African Unity Convention on the Prevention and Combating of Terrorism of 1999 provides that ‘the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts’.”

He then moves on to issues of international law relating to the occupation:

“In China’s view, the question of the Occupied Palestinian Territory involves both the legality of the occupation per se and the legality of Israel’s acts during the occupation. These two aspects are governed by distinct legal frameworks…

“The principle of non-use of force is at the core of jus ad bellum [the conditions under which States may resort to war or to the use of armed force in general]. As a corollary of this principle, the prohibition on the acquisition of territory by force is firmly established in customary international law. Using force to occupy and maintain such occupation for the purposes of territorial acquisition or annexing an occupied territory by force in whole or in part, is each illegal…

“Israel’s occupation has been explicitly recognised as unlawful by several United Nations resolutions…

“China is of the view that the temporary and non-sovereign nature of belligerent occupation means that an occupying Power cannot acquire sovereignty over the territory during the belligerency. Belligerent occupation, under any circumstances, does not have the effect of lawful annexation…

“Fifty-seven years have passed since Israel began its occupation of the Palestinian territory. Regardless of the duration of the occupation, the unlawful nature of the occupation and the sovereignty over the occupied territories remain unchanged.”

These points have particular bearing on the question of East Jerusalem (as well as of Syria’s Golan Heights) as well as the illegal settlements in the Occupied Territories.

Concluding, Ma stated that “justice has been long delayed, but it must not be denied.”

China’s position was welcomed by the Islamic Resistance Movement Hamas. According to the Jerusalem Post, its politburo member in charge of international relations Osama Hamdan said in a statement:

“We also appreciate the position expressed by the People’s Republic of China, and its emphasis on the legality of the occupied peoples’ pursuit of self-determination, by various means, including armed resistance, and the necessity not to confuse terrorism with the armed struggle practiced by the Palestinian people against the Zionist occupation.”

The below text was originally published by the International Court of Justice. Ma Xinmin’s statement can also be viewed on UN Web TV.

INTRODUCTION

Mr President, distinguished Members of the Court, it is a great honour and a privilege to appear before you on behalf of China. China is committed to promoting the rule of law in international relations and stands in firm support of the Court in preserving and safeguarding international peace and security, international order, fairness and justice.

Dealing with the question of Palestine serves as a litmus test for the collective conscience of humanity, the wisdom of the United Nations and the authority of international law. The question of Palestine has persisted for over half a century, inflicting sufferings across generations. Countless Palestinians have been waiting in vain their entire lives, yet there remains no glimmer of hope in their efforts to restore the legitimate rights of the Palestinian people. Fundamentally, the foundation of the “two-State solution” has been continually eroding; the relevant United Nations resolutions have not been effectively implemented.

China has consistently supported the just cause of the Palestinian people in restoring their legitimate rights. Chinese President Xi Jinping has stressed on multiple occasions that China calls for a comprehensive ceasefire and an early solution to the question of Palestine on the basis of the two-State solution through negotiation.

China submitted its Written Statement to the Court last July. Today, I would like to further elaborate on China’s views. My statement will be three parts, dealing with, respectively, the advisory – 11 – jurisdiction of the Court, self- determination of peoples, as well as jus ad bellum and international humanitarian law.

I) THE COURT HAS ADVISORY JURISDICTION AND SHOULD RENDER AN ADVISORY OPINION

Mr President, I will now turn to address the matter of jurisdiction. In this regard, China submits that the Court has jurisdiction over this case and there is no compelling reason for the Court to decline to exercise its jurisdiction.

China observes that some written statements submitted last July claim that there are compelling reasons for the Court to decline to render an advisory opinion. Their main concerns are: first, an advisory opinion would circumvent the principle of consent; second, the advisory opinion would undermine the established legal framework for resolving the question of Palestine or adversely impact the negotiation process.

China is of the view that these two arguments are not tenable. First, the subject of the present request falls within the competence of the General Assembly and has always been on its agenda. Therefore, the Court, by rendering an advisory opinion in this case, would not circumvent the principle of consent in the settlement of bilateral disputes. The question of Palestine, with its origin in the mandate system under the League of Nations, goes beyond the scope of bilateral affairs between Palestine and Israel. It directly relates to the responsibility of the United Nations on international peace and security. The United Nations has a “permanent responsibility” toward the question of Palestine.

Second, the issuance of an advisory opinion by the Court would not contradict the established legal framework or disrupt negotiations to settle the question of Palestine in accordance with international law. The Court’s advisory opinion will not set up new legal frameworks or rules. Rather, it will find its basis in the established legal framework, including relevant Security Council resolutions and the Oslo Accords, and present an interpretation of relevant legal questions. Furthermore, the advisory opinion will offer clearer legal guidance on the legal issues involved in the negotiations, thus facilitating the relaunching of the negotiation process.

China supports the Court in discharging its jurisdiction in accordance with the law, with a focus on identifying, interpreting and applying existing rules, upholding the purposes and principles of the Charter of the United Nations, providing legal guidance to the UN in dealing with the question of Palestine, and fostering a proper settlement through peace talks.

II) ISRAEL HAS BEEN VIOLATING THE PALESTINIAN PEOPLE’S RIGHT TO SELF-DETERMINATION

Mr President, now I will turn to the Palestinian people’s right to self- determination.

The Palestinian-Israeli conflict stems from Israel’s prolonged occupation of Palestinian territory and Israel’s long-standing oppression of the Palestinian people. The Palestinian people fight against Israeli oppression and their struggle for completing the establishment of an independent State on the occupied territories are, essentially, just actions for restoring their legitimate rights. The right to self-determination serves as the precise legal foundation for their struggle.

Self-determination of peoples is a fundamental principle of modern international law enshrined in the United Nations Charter and a collective human right under customary international law. In 1955, during the Bandung Conference, the Chinese Premier and Foreign Minister, Zhou Enlai, solemnly declared “full support of the principle of self-determination of peoples and nations as set forth in the [UN] Charter” and “took note of the [UN] resolutions on the rights of peoples and nations to self-determination, which is a pre- requisite of the full enjoyment of all fundamental Human Rights”. This declaration was fully incorporated into the Final Communiqué of the Bandung Conference.

Let me clarify that self-determination only applies to two scenarios, namely peoples under colonial domination or foreign occupation. Under no circumstances does the right to self-determination afford any basis for any part or group within a sovereign State to claim a so-called “right to secession”. International law does not recognize the existence of a right to so-called “remedial secession” or “remedial self-determination”.

The Palestinian people, being a group residing in territory under foreign domination, is a sui generis international legal person as a whole. The right to self-determination of the Palestinian people has been consistently reaffirmed in multiple United Nations resolutions4 and the Wall Advisory Opinion. This is also widely recognized by most States and international organizations.

The Palestinian people enjoy the right to self-determination, which includes five main aspects: first, the right to preserve territorial integrity; second, the right to maintain national unity, that is, the Palestinian people, in its group identity, collectively enjoys and exercises the right to selfdetermination; third, the right to freely determine their political status; fourth, the right to freely pursue their economic, social and cultural development; fifth, the right to permanent sovereignty over natural wealth and resources.

Every State is obliged to promote the realization of the right to self- determination and to refrain from any forcible action which deprives peoples of that right. In their pursuit of the right to self-determination, these peoples have the right to engage in struggles, seek and receive support. On the basis of that right, the Palestinian people declared the establishment of the State of Palestine in 1988, which has been recognized by over 130 countries.

In pursuit of the right to self-determination, the Palestinian people’s use of force to resist foreign oppression and to complete the establishment of an independent State is an inalienable right well founded in international law. Various peoples freed themselves from colonial rule and foreign oppression to realize independent statehood after World War II. Their practices serve as convincing evidence for this right. Numerous UNGA resolutions recognize the legitimacy of struggling by all available means, including armed struggle, by peoples under colonial domination or foreign occupation to realize the right to self-determination. For instance, the UNGA resolution 3070 of 1973 “reaffirms the legitimacy of the people’s struggle for liberation from colonial and foreign domination and alien subjugation by all available means, including armed struggle”. This recognition is also reflected in international conventions. For example, the Arab Convention for the Suppression of Terrorism of 1998 affirms “the right of peoples to combat foreign occupation and aggression by whatever means, including armed struggle, in order to liberate their territories and secure their right to self-determination, and independence”.

Armed struggle in this context is distinguished from acts of terrorism. It is grounded in international law. This distinction is acknowledged by several international conventions. For example14, Article 3 of the Organisation of African Unity Convention on the Prevention and Combating of Terrorism of 1999 provides that “the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts”. It should be emphasized that, the use of force by any entity or individual in the name of exercising the right to self-determination outside the context of colonial domination or foreign occupation is not legitimate. Meanwhile, during legitimate armed struggle by peoples, all parties are obliged to comply with international humanitarian law and, in particular, to refrain from committing acts of terrorism in violation of international humanitarian law.

Against the backdrop of the Occupied Palestinian Territory, well- documented and widely recognized facts indicate that Israel’s oppressing policies and practices, throughout its prolonged occupation of Palestinian territory, have severely undermined and impeded the exercise and full realization of the Palestinian people’s right to self-determination.

III) ISRAEL’S OCCUPATION OF PALESTINIAN TERRITORIES VIOLATES INTERNATIONAL LAW

Mr President, now I will move on to the issues of international law relating to the occupation.

In China’s view, the question of the Occupied Palestinian Territory involves both the legality of the occupation per se and the legality of Israel’s acts during the occupation. These two aspects are governed by distinct legal frameworks. The former falls under jus ad bellum, while the latter is mainly regulated by international humanitarian law.

Within the framework of jus ad bellum, the principle and exceptions are established by the United Nations Charter and customary international law.

The principle of non-use of force is at the core of jus ad bellum. As a corollary of this principle, the prohibition on the acquisition of territory by force is firmly established in customary international law. Using force to occupy and maintain such occupation for the purposes of territorial acquisition or annexing an occupied territory by force in whole or in part, is each illegal. These are confirmed by the Friendly Relations Declaration of 1970, the “Definition of Aggression” of 1974 and the Wall Advisory Opinion.

Israel’s occupation has been explicitly recognized as unlawful by several United Nations resolutions. Following Israel’s occupation of the Palestinian territories in 1967, the Security Council adopted resolution 242 that “[e]mphasiz[es] the inadmissibility of the acquisition of territory by war”. Similarly, multiple General Assembly resolutions affirmed the illegality of Israel’s occupation.

In addition to the use of force by peoples under colonial domination or foreign occupation in the exercise of their right to self-determination, the United Nations Charter provides for two exceptions to the principle of non-use of force, namely, the use of force authorized by the Security Council under Chapter 7, and the right of self-defence under Article 51.

The exercise of the right to self-defence, as an “inherent right” of States, is contingent upon the occurrence of an armed attack against the territorial sovereignty of a State. When can an occupying Power invoke the right of self- defence? It hinges on whether the armed attack occurs in the occupied territory or within its own territory.

In the occupied territory, the right of the occupying Power to self-defence depends on the legitimacy of the occupation per se. If the occupation is unlawful, the occupying Power can neither acquire territorial sovereignty nor resort to self-defence against an armed attack that occurred in the occupied territory. This is rooted in the legal maxim, “no one can take advantage of his own wrong”.

However, this does not rule out the possibility for the occupying Power, based on temporary administration, as a last resort, to take necessary forcible law enforcement measures against individuals or entities in the occupied territory. Nor does it preclude the use of force by the occupying Power against the combatants and military targets in accordance with jus in bello. These acts must stay within the limits set by international law.

Within its own territory, an occupying Power is entitled to self-defence against an armed attack. However, the exercise of this right is subject to various principles, including necessity and proportionality, as reflected in customary international law.

Under the framework of international humanitarian law, the legality or not of the occupation per se will not affect the application of international humanitarian law in the occupied territory. The armed conflict in which oppressed peoples struggle against colonial domination or foreign occupation, in the exercise of their right to self-determination, is considered as an international armed conflict. Consequently, international humanitarian law, including the rules of belligerent occupation, is applicable to all parties involved in such conflicts.

It is noted that belligerent occupation is a special régime involving the temporary administration of occupied territories by the occupying Power and it is governed by two principles.

First, the principle of temporary administration, that is, the occupying Power can exercise provisional jurisdiction over the occupied territory, including limited but not necessarily legislative judicial and law enforcement power, with the obligation to maintain law and order and public life in good faith.

Meanwhile, the occupying Power is obliged to respect and protect civilians and property in the occupied territory under international humanitarian law and international human rights law. It should serve the best interests of the people of the occupied territories, and refrain from plundering resources and property, forcibly transferring or deporting inhabitants, practicing apartheid, adopting discriminatory legislation and other related violations.

Second, the principle of non-alteration of the territorial sovereignty of the occupied territory. This is a corollary of the principle of prohibition on the acquisition of territory by force. It underscores the non-sovereign nature of belligerent occupation. The occupying Power is obliged to preserve the status quo ante of the occupied territory and refrain from altering the sovereignty over the occupied territory.

Obviously, the rules of belligerent occupation are applicable to the Occupied Palestinian Territory and should be followed by both parties to the conflict. Facts indicate that relevant Israeli policies and practices have violated international humanitarian law and international human rights law.

China is of the view that the temporary and non-sovereign nature of belligerent occupation means that an occupying Power cannot acquire sovereignty over the territory during the belligerency. Belligerent occupation, under any circumstances, does not have the effect of lawful annexation. The rules of acquisitive prescription in international law does not apply to belligerent occupation. Fifty-seven years have passed since Israel began its occupation of the Palestinian territory. Regardless of the duration of the occupation, the unlawful nature of the occupation and the sovereignty over the occupied territories remain unchanged.

CONCLUSION

Mr President, justice has been long delayed, but it must not be denied. The settlement of the question of Palestine requires mutual efforts from Palestine and Israel, along with the joint efforts of the international community. China encourages both parties to accommodate each other’s legitimate concerns, embrace the vision of common, comprehensive, co-operative and sustainable security, continue negotiating for a peaceful settlement and work toward two States coexisting in peace, and two peoples living side by side in harmony.

Mr President, distinguished Members of the Court, that concludes China’s statement. I would like to thank you for your patient attention. I also wish to thank the Registry and all the staff for your kind support. I thank you all.