The ICJ has demolished Israel’s claims that it is not occupying Palestinian territories
The
Israeli government has long stressed that there was no Palestine whose
land it could occupy and that the territories are ‘disputed’. The court
has rejected this
Mon 22 Jul 2024Last modified on Mon 22 Jul 2024 11.11 EDT
Friday’s international court of justice (ICJ) ruling
was a wholesale repudiation of Israel’s legal justifications for its
57-year (and counting) occupation of Palestinian territory. But it is
not a magic bullet. Political pressure will be needed to back it up. The
first opportunity will come when Joe Biden meets the Israeli prime
minister, Benjamin Netanyahu, in Washington on Tuesday.
As has been widely noted, the court’s ruling is only “advisory”,
not binding, because it was requested by the UN general assembly rather
than the product of a lawsuit between two states. Moreover, the Israeli
government is already ignoring prior ICJ decisions. Israel has not
moved the separation barrier, which the court held in a 2004 advisory opinion
to be illegal because, under the guise of security, Israel has
incorporated large swathes of Palestinian land on the Israeli side of
the barrier. Nor has Israel discernibly mitigated its offensive in Gaza
despite court orders in the case brought by South Africa requiring steps to protect Palestinian rights under the genocide convention.
Yet the ICJ has demolished Israel’s claim that the West Bank, East Jerusalem, and the Gaza Strip are not occupied, merely “disputed”. The Israeli government has long stressed that there was no “Palestine” whose land it could occupy because,
until the six-day war of June 1967, the West Bank and East Jerusalem
had been held by Jordan, which has since relinquished any claims to
them, and the Gaza Strip was administered by Egypt, which certainly
doesn’t want it back.
But the court held that
for legal purposes, occupation is the product of a military takeover of
land, regardless of its status. Even Gaza has long been occupied, the
court found, despite Israel’s 2005 disengagement, because Israel maintained authority over various aspects of life in Gaza that could be exercised when it wished.
That occupation brings into force the fourth geneva convention of 1949 on military occupation, which Israel has ratified. Article 49 renders it illegal – a war crime
– for an occupying power to transfer its population to occupied
territory, as the court found that Israel has done with its settlements.
Did
Palestinian leaders waive these rights with the Oslo accords, which
recognized certain Israeli powers in the occupied territory as
negotiations were supposed to proceed toward a Palestinian state? No,
said the court, citing article 47
of the fourth Geneva convention, which says negotiations between
occupier and occupied cannot deprive people of rights under the
convention – a wise precaution given inherent power imbalances.
The
court’s ruling is more than a legal setback for Israel. It is a virtual
invitation for the ICC to prosecute the officials behind the
settlements
The court’s
ruling is thus more than a legal setback for Israel. It is a virtual
invitation for Karim Khan, chief prosecutor for the international
criminal court (ICC), to prosecute the officials behind the settlements.
He should start with the members of the current government who are
authorizing their rapid expansion.
Benjamin Netanyahu rejected the court ruling as “absurd”,
saying that Jews have a right to settle in their homeland. But that
same land is also the homeland of Palestinians. The court noted the
Palestinian people’s right to self-determination. While the key question
for such matters is what the “self” is that gets to be determined, the
court cited the UN security council and the UN general assembly on the
integrity of all occupied Palestinian territory. In essence, while the
Jewish homeland is now recognized as Israel within its borders as they
existed until June 1967, the Palestinian homeland is the occupied
territory.
The court’s ruling comes as the
prime minister is about to meet Biden. Despite abandoning his candidacy
for re-election, Biden has given no indication that he will change his
extraordinary deference to the Netanyahu government’s war crimes in
Gaza. But the ICJ decision should give him pause about his response to
the occupation as a whole.
In the most
sweeping portion of the ruling, the ICJ found that Israel’s entire
occupation is illegal and should be reversed. The Biden administration
said in response
that the US government has long agreed that the settlements are
illegal, but that the “breadth” of the court’s ruling will complicate
efforts to resolve the conflict because it doesn’t take into account
Israel’s security needs.
Yet most of what the
court described – the settlements, the demolition of Palestinian
housing, the theft of Palestinian resources – has nothing to do with
security. Indeed, transferring Israeli settlers to the heart of
Palestinian territory arguably makes Israelis less secure. One theory
for why Israeli forces were so poorly prepared for Hamas’s 7 October
attack is that they had been diverted to address the growing tensions under Netanyahu’s far-right government between Israeli settlers, with their mounting violence and land grabs, and the Palestinian population.
Perhaps
most ominously for Israel, the court ordered all governments not to
“render aid or assistance in maintaining” Israel’s presence in the
occupied territory, given its illegality. That should apply foremost to
the US government, the largest supplier to Israel by far of arms and
military aid. The former Liberian president Charles Taylor is serving a 50-year prison term
in a British prison for aiding and abetting war crimes by shipping arms
to an abusive rebel group in neighboring Sierra Leone. No one is
holding their breath awaiting ICC charges against US officials, but
Biden should reconsider continuing to finance and arm the maintenance of
the occupation precisely because charges would be legally justified.
Moreover,
although the finding was hidden in legalese, the court ruled that
Israel has imposed a regime of apartheid in the occupied Palestinian
territory by virtue of its systematic discrimination against Palestinian
residents. The A-word has been anathema in official Washington circles,
despite detailed reports finding apartheid by Human Rights Watch and every other serious human rights organization to have addressed the issue.
That
should give Biden ammunition to overcome Netanyahu’s opposition to a
Palestinian state. If not a Palestinian state, then what? Some now talk
about equal rights for all within the existing “one-state reality”
between the Jordan River and the Mediterranean Sea, but that is
undoubtedly the last thing Netanyahu wants. Some of the far-right
members of his government dream of forcibly deporting
Palestinians, but that would be a sure route to ICC charges and global
opprobrium that even the US establishment would find difficult to
resist.
The ICJ now says the third option –
Netanyahu’s preferred option – of endlessly kicking the can down the
road with occasional talk of a moribund peace process to camouflage the
ugly status quo is in fact apartheid. Not that I think he would ever
have the courage to do so, but it is nice to imagine Biden saying that
the United States, with its own long history of racial injustice, will
no longer support Israel in maintaining an apartheid regime in the occupied Palestinian territory. The occupation must end.