On the ICJ Advisory – a compilation

The ICJ declared Israel’s long-term occupation of Palestinian territory “unlawful” and said it amounted to de facto annexation. The court called for Israel to rapidly quit the occupied territories and ruled Palestinians were due reparations for the harm of 57 years of an occupation that systematically discriminates against them.

And in its many parts, the judgment represents a devastating defeat for Israel in the world court.

While numerous UN reports and resolutions in the general assembly have made the same point, the ICJ ruling, by virtue of being made in reference to treaty and individual laws, represents a judgment that will be hard to ignore.

The ruling also stood as a rebuke to Israel’s argument that the ICJ had no standing to consider the issue on the grounds that UN resolutions, as well as bilateral Israeli-Palestinian agreements, had established that the correct framework for resolving the conflict should be political, not legal.

Effectively rejecting that argument, the court asserted that international law applies regardless of the decades of failed political efforts to reach a lasting peace agreement, not least as Israel has continued with its settlement-building.

Taking half an hour to read, the ruling gathered together multiple strands of international law from the Geneva conventions to the Hague convention to make a case that has been obvious to Palestinians and to critics of Israeli policy in the international community for years.

In summary it said that years of Israel’s own officially and self-described ambitions to build and settle in the occupied territories amounted to an intent to effectively annex territory against international law; that those policies were designed to benefit settlers and Israel, not the Palestinians living under military administration.

Perhaps the most significant section was the judgment that “the transfer by Israel of settlers to the West Bank and Jerusalem as well as Israel’s maintenance of their presence, is contrary to article 49 of the 4th Geneva convention”.

While the individual paragraphs applying to each breach of international law – and each inconsistency – were not surprising, taken in its entirety the ruling offers a profound challenge to governments, including the UK and US, that had for years soft-pedalled on Israel’s occupation policies, criticising settlement building but until recently doing little practical about it.

If that has changed in recent months, with a raft of US, UK and European sanctions targeting violent settlers, both individually and the groups that support them, the advisory ruling poses a far more serious question: whether, given the severity of the breaches of international law, sanctions should also be applied to Israeli ministers and institutions supporting the settlement enterprise.

While non-binding, the ruling will provide ample ammunition for government lawyers already actively examining future sanctions against those linked to Israeli settlement.

Significant in the ruling was that the court had noted the recent and continuing transfer of powers from the military to civilian officials overseeing the occupied territories, which critics had warned further exposed Israel activities to the court.

The timing, too, is significant. With Israel isolated over its conduct of the Gaza war, and under investigation at the ICJ and the international criminal court for alleged war crimes, the stark assessment of the long-term illegality of Israel’s occupation will only reinforce that isolation.

If the ruling felt inevitable, it was because of Israel’s own rightward drift under its prime minister, Benjamin Netanyahu, who now heads a coalition that includes far-right pro-settler parties and ministers and has embraced exactly the policies for which Israel has been condemned.

ICJ’s Decision on the Occupation Goes Beyond Israel’s Worst Fears

Israel’s fundamental arguments about its long-term occupation of the West Bank and Gaza are undermined in the ICJ’s advisory opinion, which essentially arms countries, institutions and corporations with justification to penalize Israel. Ignoring it shouldn’t be an option

Alon Pinkas, Haaretz, 19 July 2024

However predictable, however strong the “Yeah, but there’s nothing new here,” however nonbinding, the International Court of Justice’s ruling on Israel’s occupation or administration in the West Bank and East Jerusalem is an unpleasant and dangerous statement.

In fact, it probably eclipsed Israel’s worst-case-scenario fears in that it demands that Israel end the occupation as quickly as possible, an occupation that the court deems illegal. When the judges come to this conclusion and demand that Israel pay reparations to the Palestinians, Israel can defy, ignore, ridicule and sanctimoniously attack the opinion all it wants. But this vindicates many countries – foes and friends, detractors and supporters alike.

The key points in the ICJ’s opinion

• • • Israel’s ongoing presence in the occupied Palestinian territories is deemed illegal.
    • Israel must end its presence in the occupied territories as soon as possible.
    • Israel should immediately cease settlement expansion and evacuate all settlers from the occupied areas.
    • Israel is required to make reparations for the damage caused to the local and lawful population in the Palestinian territories.
    • The international community and organizations have a duty not to recognize the Israeli presence in the territories as legal and to avoid supporting its maintenance.
    • The UN should consider what actions are necessary to end the Israeli presence in the territories as soon as possible.

The court said the occupation has become permanent and turned into an annexation. In fact, Israel’s entire presence in the West Bank is illegal, the court opined.

Benjamin Netanyahu’s extremist, messianic right-wing government can (and will) dismiss this as an irrelevant ruling by a court without jurisdiction. It will say that the court expressed nothing more than anti-Zionism that crossed the fine line into antisemitism.

That won’t change the fact that there is now a broad consensus around the world. The court’s ruling wasn’t helped by the Knesset’s vote this week “against a Palestinian state,” as if this were currently on the table and required urgent action.

The court said the occupation is de facto annexation, answering the core question it was asked to address. It added that the occupation consists of “systematic discrimination, segregation and” – here comes the dreaded a-word – “apartheid.”

Regarding the settlements, the court both echoed and armed broad world opinion. It said the settlements are “illegal and in breach of international law.” And despite the unilateral withdrawal in 2005, Israel remains “an occupying force in the Gaza Strip.”

The court issued its ruling as a legal opinion upon referral from the United Nations, which it provides with on-demand opinions as part of its mandate. As such, the decision isn’t legally binding, and even if it’s referred by the General Assembly to the Security Council for enforcement, it’s reasonable to expect an American veto.

Still, the decision carries substantial political consequences, especially against the backdrop of the war in Gaza and crucial world opinion about Israel’s prosecution of the war. The opinion further undermines Israel’s basic arguments about the nature of its relationship with the West Bank and East Jerusalem.

Individual countries, banks, pension funds and multinational corporations might use the opinion to expand sanctions against individuals, settlements, organizations and Israeli companies. More ominously, the court’s ruling is bound to have an effect on the International Criminal Court, the sister court in The Hague that is considering further accusations of genocide and war crimes against Israel. It might issue warrants against more officials than just the prime minister and the defense minister.

Friday’s opinion is separate from South Africa’s petition to the International Court of Justice alleging that Israel is committing or facilitating genocide in Gaza. The current case was the result of a request made in December 2022, and, interestingly, even though it’s a different case than the South African petition, it mentions Gaza at least 15 times, in a document drawn up almost a year before the war began. It too describes “high casualties among Palestinian civilians … including among children” and stresses that “the situation in Gaza is unsustainable.”

When the referral was made, it was supported at the UN General Assembly by 87 countries and opposed by 23, among them the United States, Britain and Germany. The basic question the court was asked was whether Israel’s occupation of the West Bank and East Jerusalem – a reality in place since June 1967 no matter how it’s defined – is “temporary” or has become a “permanent” feature that leads to partial or full annexation.

In other words, do Israeli settlements – that is, major population transfers from the occupying or administering country to the occupied territory in part or in whole, a continued military presence and vast infrastructure work – constitute an irreversible occupation?

Under international law, an occupation is not automatically illegal if it is temporary and the circumstances leading to it can be justified or adequately explained. This applied, for example, to the American occupation of Japan and West Germany, and to the Soviet occupation of East Germany, after World War II. The law recognizes context, situations and eventualities following conflicts in which specific circumstances make temporary occupation legal, or at least “not illegal.”

International law distinguishes between “provisional belligerent occupation” and “territorial acquisition by invasion and annexation,” both of which are illegal under international law. It also distinguishes between cession, conquest and effective occupation.

Under cession, sovereignty is ceded to the occupier. Regarding conquest, direct annexation and the acquisition of territory by force has become illegal since the end of World War II. It’s the basis of UN Security Council Resolutions 242 and 338 classifying Israel as an occupier. Conquest, actually, was already mentioned in the 1907 Hague Convention. Part of Israel’s argument has been that Jordan (which held the West Bank) and Egypt (which held Gaza) had no sovereign claim to those territories between 1949 and 1967.

Once a territory is occupied, both the Hague Regulations and the Geneva Conventions set out extensive obligations for an occupying power.

The rules of occupation aim to prevent measures that could lead to annexation, which is strictly forbidden under international law. The prohibition of annexation by use or threat of force stems from Article 2(4) of the UN Charter and has been reiterated in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States.

The gist of the argument against Israel at the International Court of Justice is empirical. Demographically, 650,000 Israelis live in settlements east of the Green Line, the 1949 armistice line that’s also called the June 4, 1967 borders, referring to the day before the Six-Day War. This presence constitutes a clear demonstration of permanent occupation.

Hence the court’s remarks on settlements. Fifty-seven years of an uninterrupted and expansive military presence, vast infrastructure investments and numerous declarations of intent either opposing a Palestinian state or stating intent to annex hardly indicate temporariness. Already in 2004, the International Court of Justice decreed that the “security fence” – the barrier that Israel was building in the West Bank to separate itself from Palestinian cities and towns – was effective annexation of the areas west of the barrier next to the 1967 border.

In the last 30 years, Israel’s legal line of defense changed somewhat from the “no sovereign” argument to the Oslo Accords of 1993. According to Israel, the accords proved that the occupation was indeed meant to be temporary in the absence of a diplomatic settlement. By virtue of the establishment of the Palestinian Authority, its sovereignty over Palestinian population centers in the West Bank and Gaza, and the mutual commitment to a future Palestinian state, Israel proved it had no annexationist intentions.

Good luck expecting this argument with any credibility from Israel’s current extremist government, but that remains the core of Israel’s legal defense.

Setting aside the nonbinding nature of Friday’s ruling and the lack of political feasibility, the court essentially armed countries, institutions and corporations with reasoned justification not only to admonish Israel, but to penalize it. No one thinks that this ruling will trigger a policy overhaul or political awakening.

But the knee-jerk pontifications, condemnations and derision in Israel are equally unfeasible. The entire world may be wrong, sure, but ignoring it isn’t policy or moral posture. It’s the lack of them.