To understand more about the
significance and scope of the ruling, +972 Magazine spoke to Diana
Buttu, a Palestinian lawyer based in Haifa who served as legal advisor
to the PLO from 2000 to 2005. During that time, she was part of the team
that brought a case to the ICJ concerning Israel’s separation wall,
whose route the court declared — in another non-binding advisory opinion
— to be unlawful. The interview has been edited for length and clarity.
How did you feel as you watched ICJ President Nawaf Salam read out the court’s opinion?
On the one hand, I was very happy
because it confirms everything that I and so many other legal scholars
and activists have been saying for decades. But on the other hand, I
kept asking myself: Why did we have to actually go to the ICJ? Why do
people listen to a legal opinion, but not to our lived experience? Why
did it take so long to see that what Israel is doing is wrong?
Diana Buttu. (Courtesy)
How significant is this ruling for Palestinians?
It’s important to put the ruling in
its proper context, as an advisory opinion. There are two ways you can
go to the ICJ. The first is when there’s a dispute between two states,
and that’s what you’ve seen with South Africa versus Israel
[on the question of genocide in Gaza], and those decisions are binding.
The second is when the UN General Assembly asks for clarification or a
legal opinion on a matter; that’s an advisory opinion, and those are
non-binding.
So when you look at the overall
picture, one must remember that using the courts and using law is just
one tool, not the only or final tool. That doesn’t mean it isn’t
important, or that a non-binding opinion isn’t law. The bigger issue is
how it’s going to impact future behavior.
Here it’s important to remember what
happened with the first ICJ decision [on Israel’s separation wall],
which was issued on July 9, 2004. Even though it was an advisory
opinion, it did set law, and more importantly, it was because of this
decision that we saw the growth of the Boycott, Divestment, and
Sanctions (BDS) movement — in fact, the movement was launched
internationally exactly one year afterward.
So people should understand that
there’s never going to be a legal knockout. The occupation is not going
to end through courts and legal mechanisms — it’s going to end when
Israel pays the price. And whether that price is paid externally because
the world says enough, or internally because the system starts to
implode, it’s going to be an Israeli decision to end the occupation.
The ICJ’s 2004 advisory opinion was a landmark decision, but it
did little to counter the construction of the separation wall or change
its route. Do you think the new opinion carries any different weight
compared to the past, or could generate different political actions?
Yes. The 2004 decision was important
for a few reasons. First, not only did it say that the wall is illegal,
but it also talked about the obligations of third-party states to uphold
international humanitarian law and not contribute to the damage. Now,
you’re right, the wall continued to stand and the non-binding decision
did not stop the construction, because there was no enforcement of it.
It did, however, change the ways in which diplomats and others related
to the wall.
Israel’s separation wall cutting through Jerusalem, January 12, 2023. (Jamal Awad/Flash90)
We must also remember that this new
advisory opinion is much bigger and broader. The court tears to shreds
the idea of peace negotiations, of the Oslo Accords, of Palestinians
accepting permanent occupation. And while governments may continue to
hold onto their position that negotiations are the only way forward, in
every capital around the world, there is now going to be a legal memo
that says the International Court of Justice has ruled [that
negotiations cannot deprive the occupied population of rights under the
Geneva Convention].
One other important thing is that Israeli settlements in the West Bank have become normalized,
and here we have a decision that undercuts that, saying that the
settlements and the settlers have to go. Based on those things, I do
expect to start seeing a shift in policy. It might not happen immediately, but it will shift the mindset of the ways people will relate to the occupation.
What kind of a change in policy or mindset do you expect from the international community?
I can give one example from Canada,
where I was born. Canada’s submission [for the ICJ’s proceedings on the
case] was very typical, affirming that the ICJ has jurisdiction over
this important issue, but then going on to say that the best way to
resolve it is by negotiations. But that’s the equivalent of saying, and
forgive the analogy, that a person who is being beaten up just needs to
negotiate with their abuser. Now the court has dispensed with that, and
has clearly established that there is an occupier and occupied. So now I
expect — and I’m actually going to start demanding — that the Canadian
government change its position.
Another example where I expect to see
change is the issue of settlers. When you look at the number of
settlers living in occupied territory today, the conservative estimate
is 700,000. In relation to the 4 million people in the entire territory
[of the West Bank, including East Jerusalem], that’s a very high
percentage. And that’s important because it shows that so many Israeli
settlers have internalized and normalized the occupation.
The question is whether the Israeli
settlers are going to view themselves as people living illegally on
Palestinian land — and I suspect it’s going to be a no. But what I want
to see is that action and that perception no longer being normalized,
and a recognition that the occupation has done harm that needs to come
to an end. Israel has done a good job at normalizing the settlements,
and there is no Green Line anymore — Netanyahu’s statement yesterday [against the ICJ ruling] is proof of this. But that has to change.
Israeli soldiers prevent the residents of
the Palestinian village of Az-Zuweidin from grazing on their private
pastures and arrest three Palestinians, southern occupied West Bank, May
4, 2024. (Omri Eran Vardi/Activestills)
I think we’re at the same moment as
we were in the 1980s with apartheid South Africa. Back then, advocates
for apartheid would tell anti-apartheid activists that they simply
didn’t understand the situation. Apartheid had become so normalized. Ten
years later, it wasn’t. And here we are 30 years after that, and I have
a hard time finding one person who says apartheid was a good thing.
Was there anything in the advisory opinion that you were surprised by?
I wasn’t surprised by many things,
but I was pleased that certain elements were there. One of those things
was the focus on Gaza, because since 2005, Israel has adopted this
narrative of “disengagement,” claiming that there is no occupation there. Many human rights organizations have been fighting to say that Gaza is actually occupied
— that there is effective Israeli control, and that Israel’s
responsibilities are linked to the level of that control. I was happy to
see that the court confirmed that and put this argument to rest,
especially because there has not been, to my knowledge, any UN Security
Council resolutions on this matter.
The second thing I was very pleased
to see was that the court said reparations have to be paid, and not just
in the form of all the settlements being taken down, but the settlers
leaving too. And the third thing was the idea of refugees being allowed
to return [to the homes from which they fled or were expelled in 1967].
This is an acknowledgement of the harm that 57 years of military
occupation has done.
I was kind of surprised to see the
Australian judge [Hilary Charlesworth] come out and very clearly say
that Israel cannot claim self-defense to maintain a military occupation,
or in relation to acts of resistance against the occupation; I have
argued this for a long time and it is good to see a judge make the same
remarks. And while by and large agreeing with the court’s opinion, the
new American judge, Sarah Cleveland, had a very interesting separate opinion:
she argued that the ruling should have given more attention to Israel’s
responsibilities under the law of occupation specifically to Gaza, both
before October 7 and now.
Israeli politicians, both in the government and the opposition,
rejected the ICJ opinion, smearing it as antisemitic and biased. Do you
think these reactions disguise any genuine concerns or fears?
Yes, the fear is that they’re being
outed for the racists that they are, and that they may actually need to
end the occupation. There might also be some action worldwide [putting
pressure on Israel]. They are also concerned because they’re the ones
who put the settlers there in the first place, and there might be
demands on the part of the settlers to be compensated for leaving.
Israeli settlers, backed by Israeli
soldiers, attack Palestinian residents, cars, and shops in the occupied
West Bank town of Huwara, near Nablus, October 13, 2022. (Oren Ziv)
Netanyahu has never recognized Palestine’s right to exist. We saw just the other day the Knesset vote
against the establishment of a Palestinian state. And it wasn’t just
the Likudniks, or [Itamar] Ben Gvirs, or [Bezalel] Smotrichs who signed
on to it, but other lawmakers as well, including [Benny] Gantz. They’ve
never recognized what they did in 1948 or the harm they’re perpetrating
today. Instead, they are guided by this concept of Jewish supremacy —
that only they have a right to this land.
Israel has always sold the occupation
as somehow being legal, and their actions as somehow being just and
right, with these stupid claims of a “moral army.” There’s no moral army
in the world — how do you morally kill people? They make these claims
that you can go to the Israeli High Court,
and every Palestinian knows there’s no justice to be achieved from a
court that’s been set up as an arm of the occupation. Now, when they
have a court looking from the outside and saying what they’re doing is
illegal, it’s of course terrifying to them.
Apartheid South Africa behaved the
same way when it had to deal with the ICJ’s opinions. At the end of each
ICJ opinion, the apartheid government used to give the same line: that
only South Africa can stand in judgment of South Africa, meaning that
only a racist system can judge whether the system is racist. That’s what
Israel is saying: only us, the racist system, can determine whether
it’s racist. But then you step out and see the international rules
confirm that the system is racist and needs to be dismantled. That’s
scary for Israel.
A few Israeli international law experts are downplaying the
significance of the ICJ’s opinion by emphasizing that it is non-binding,
and arguing that the court didn’t say the occupation is illegal, only
that it is illegal for Israel to disobey the rules of occupation. How do
you view these claims?
They’re right, but to downplay it is
also a fool’s errand. According to international law, you can have a
legal occupation, but only as a temporary state for a short period of
time in order to restore law and order and get rid of threats. The
problem with the Israeli occupation is not just the length of time, but
the fact that it was never intended to be temporary. Since 1967, Israel
has said they are never going to give up the West Bank. They denied that
Palestinians have a right to this land, and almost immediately began
settlement construction and expansion. The length and practices are what
makes Israel’s occupation illegal.
These same Israeli legal scholars
don’t recognize what harm means. Maintaining an occupation requires
violence. Taking land, putting up checkpoints, building settlements, running a military court system and permit regime, abducting kids in the middle of the night, demolishing homes and stealing water:
everything that this occupation entails is violent. So Israeli experts
can try to downplay the ruling as much as they want, but they’d be well
advised, instead of coming up with ways to make the occupation look
prettier, to finally put an end to it.
Palestinians cross Qalandiya checkpoint on
their way from the West Bank to the fourth Friday prayer of Ramadan in
Al-Aqsa Mosque, April 29, 2022. (Oren Ziv)
You say that Israel’s actions were illegal from day one of the
1967 occupation. Do you see this current government, or the last 15
years of Netanyahu’s rule, as more dangerous than what came before? Or
is it basically continuing the same policies toward the Palestinians and
the occupied territories that we’ve seen for more than half a century?
It’s the same and it’s different.
It’s the same because there hasn’t been one Israeli government since
1967 that has stopped settlement expansion. You can look at any other
issue in Israel, and governments have differing policies, but this
unites them. So it doesn’t matter if it was Labor, Likud, or Kadima;
Netanyahu is no different in that respect.
The only thing that is new is that
this government is so brazen about its position. While in the past you
may have had people who would talk about a two-state solution, Netanyahu
has been very clear throughout his premiership that there will never be a Palestinian state, and that Palestinians have no rights.
You have long been critical of the Palestinian Authority for its failures. How do you see them handling this ruling and the other recent procedures at the ICJ and ICC, both in the diplomatic arena and on the ground?
One of the big problems in 2004 was
that we didn’t have a Palestinian leadership that was pushing for the
implementation of the ICJ decision [on the separation wall]. They were
still in what they thought was the heyday of negotiations, still living
in a fantasy world. And that’s why the BDS movement ended up coming out
and pushing.
This time around I’m really worried,
because if there’s one thing that you can take away from this decision,
it is [a critique of] all these so-called “generous [Israeli] offers”
that Palestinians have had to suffer under. The ICJ makes it clear that
[the occupied Palestinian territories] are not Israeli territory for
them to be generous with. Not only that, the opinion of the ICJ is an
indictment against Oslo: it says that it doesn’t matter what was signed,
Palestine still has a right to self-determination and no agreement can
supersede that right.
A protester raises the Palestinian flag in
front of Israeli soldiers during a demonstration in Beita, occupied West
Bank, September 8, 2023. (Wahaj Bani Moufleh/Activestills)
My fear is that Abu Mazen [President
Mahmoud Abbas] knows only one concept, and that is negotiations. I’m
afraid that we’re going to see enough U.S. and Western European pressure
for him to say, this is all very well and good, but we believe that
negotiations are the only way forward.
And if you were to advise the PA, how would you suggest they move forward?
The PA should be going from capital
to capital to get backing for the idea that settlements are illegal, and
that the settlers have to go. I wouldn’t be entertaining ideas of land
swaps, which is what they did in the past. I wouldn’t be entertaining
the idea of negotiations now; they are not bad as a tool, but the
negotiations have to be about something. If they were to, for example,
have negotiations on pesticides, or the economy, or movement of people,
that’s all fine. But to have negotiations over your rights is something
very repugnant, and I can’t believe there are people still thinking in
these terms in the year 2024.
So I would advise them to push for
everything possible to be done to make sure that the settlements and
settlers are removed — which should not be up for negotiations — and
Israel begins to pay a price. I understand that the Palestinian
president is under military occupation, and that the economy is under
Israel’s control. But there has to be a breaking of that dependency.
How can the Palestinian leadership use this ICJ decision to push harder on ending the war on Gaza?
I don’t think this current leadership
is capable of doing anything for Gaza. It’s very sad for me to say, but
I get the feeling that many of them don’t care about Gaza.
And if we’re speaking about the Palestinian leadership as a whole, not only the PA?
First, we have to have a Palestinian
leadership that emerges through elections. My fear now for Gaza is that
there’s all this [international] talk of the “who” [who will take over],
and there’s no real talk of “what.” People are pointing saying this or
that person would be good, then it somehow ends up consolidating around
Abu Mazen, as though there are no other people in Palestine capable of
being a leader.
Palestinian President Mahmoud Abbas speaks
during a meeting of the Palestinian leadership in the West Bank city of
Ramallah, September 3, 2020. (Flash90)
No person is going to want to come in
and be the head of the Palestinian Authority [as it is now]. There’s a
reason there’s not been a coup in Ramallah since Abu Mazen took over:
it’s a thankless, stupid job where you are effectively the security
subcontractor for Israel.
What needs to come out is a credible
elected leadership with an overall strategy and vision for all
Palestinians, but especially right now for Gaza. And for me, it centers
on the idea of holding Israel accountable for everything that it’s done,
particularly since October 7. It’s disheartening to hear over and over
again [from international commentators and politicians] that nothing
justifies [the Hamas attack of] October 7 and yet everything that Israel
does in Gaza is justified by October 7. We need to start poking holes
in that ideology and hold Israel accountable — then you can start
rebuilding Gaza.
I hope that a new, united, and elected Palestinian leadership would step back, assess Oslo
and the mistakes that were made, and assess this moment to move
forward. I don’t think the current leadership is capable of having that
internal reflection.
The PLO always had this obsession
with Palestinian decision-making being in the hands of Palestinians, and
the PA today is holding to this same obsession. But if the PA doesn’t
handle this moment right, and I suspect they won’t, we’re going to see
many more activists, the BDS movement, and others internationally pick
up the torch.
The ruling is focused on the Palestinian territories occupied by
Israel since 1967. Some would say that this scope is very narrow,
ignoring crimes and violations going back to 1948, or that it may force
the Palestinians into accepting a future only on these 1967 lines. How
do you grapple with the limitations of this ruling for the Palestinian
cause?
This was the critique of the ICJ
question in the first place, and I share this critique: that by focusing
just on ‘67, you’re giving Israel a pass. The only way to understand
the occupation is if you understand what Israel did during the Nakba and during the era of military rule
[inside Israel], which Palestinian citizens lived under for 19 years
until ‘66. The idea that you can separate the two [1948 and 1967] is a
fiction.
Israeli forces raze the entire unrecognized village of Wadi al-Khalil in the Naqab, May 8, 2024. (Oren Ziv)
For the PA, there are two main
reasons to focus on 1967: one is that they see the occupation as the
immediate harm that must be undone, and two is that I think they gave up
on 1948 decades ago — not just with the signing of Oslo, but even
before that, with the PLO’s Declaration of Independence in 1988.
For the PA, there’s a limiting
political backdrop as well. In many ways they have given up on
reparations for the Nakba, which effectively means that they’re giving
up on the right of return. They may say they’re supportive of it, but I
just don’t see it.
There’s a way where you can talk
about ‘48, and still have this idea of a political compromise. That has
been the Palestinian position for many years, but over the last 20
years, that has not been the PA’s position. When I step back and look at
where they stand, I think there’s very much a political conviction that
we’re just going to give up on ‘48 — not only the territory but also
the narrative — in order to try to preserve what’s left of ‘67.
Palestinians have lost faith in international law over the years
for its failure to protect them. Do you think the recent moves at the
ICJ and the ICC give Palestinians a new reason to rekindle that faith?
I understand why there’s anger with
the legal system, because law is oftentimes a reflection of power. But
it can also be used as a tool. Israel has been very clever in the way it
has carried out its occupation — not just on the ground, but in the way
they’ve sold the occupation and blocked opposition to it, particularly
in the United States, Canada, Australia, and other countries in the
West.
Now, this ICJ opinion opens new
arenas [for accountability]: to make sure that Israel doesn’t get to use
free trade agreements, that French citizens don’t get social security
if they’re living in an illegal Israeli settlement, and that settlers
are sanctioned financially and not allowed to travel to certain places
around the world. But that all requires a lot of work.