[Salon] Decision on the Occupation Goes Beyond Israel's Worst Fears

https://www.haaretz.com/israel-news/2024-07-19/ty-article/.premium/icjs-decision-on-the-occupation-goes-beyond-israel's-worst-fears/00000190-cbe6-dc8b-a1dd-cbe7a2350000

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 ruling, which essentially arms countries, institutions and corporations with justification to penalize Israel. Ignoring it shouldn't be an option

Alon PinkasJul 19, 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 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.

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.

Members of the diplomatic corps reacting at the ICJ in The Hague after Friday''s opinion was handed down.Credit: Nick Gammon/AFP

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 appeal was 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.

Effective occupation sees the control of territory with no other sovereign power claiming the land. This was part of Israel's argument asserting 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.