ICJ: Ireland vs Israel – Advisory Opinion Hearings

Along with other states, the Attorney-General of Ireland, Mr Rossa Fanning SC, presented a case against Israel at the ICJ Advisory Opinion hearings earlier this year.   

With a combination of legal and moral arguments he condemned Israel for breaching international law with activities such as:

• Mistreating the Palestinians.
• Occupying Palestinian territory.
• Seeking to annex Palestinian territory.
• Denying Palestinian self-determination.

In the view of Ireland, the remedy for all this is the creation of a Palestinian state.  

No attempt was made to understand Israel’s perspective.  There was no Israeli presence at the ICJ to help with such an understanding.  

Therefore, this response sent to Ireland’s Attorney-General may help fill that gap and hopefully enable a dialogue with Ireland and others with similar views.

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7 Questions to Mr Rossa Fanning SC Attorney General of Ireland

1/  Your statement at the ICJ Advisory Opinion proceedings in February 2024 contained several core remarks on which we agree.   These include your point regarding the ‘protection and promotion of a global order based on a respect for international law’.   Further, we see that core foundational purposes of the UN and international law are to prevent wars between states and support the national self-determination of peoples.  These will be themes throughout this response. 

2/   The recent joint statement by the governments of Ireland, Spain, Slovenia and Malta drew these aspirations together regarding the Israeli-Palestinian conflict:

We are agreed that the only way to achieve a lasting peace and stability in the region is through implementation of a two-state solution, with Israeli and Palestinian States living side-by-side, in peace and security.

3/    However, in this context, two crucial questions are neither asked nor answered in the presentation to the ICJ or in the joint statement of the four states.

 Question # 1

How can a Palestinian state intent on Israel’s destruction produce a successful Two-State Solution –  and regional peace and stability?

 Question # 2

What is the status in international law of establishing a Palestinian state that intends to destroy another state?

4/   Of course, these questions could be dismissed by denying that the Palestinians seek Israel’s destruction.  Yet even a cursory examination of the Palestinian National Charter (1968) or the main PA daily Al-Hayat al Jadida shows that the PA:

1. Refuses to accept a two-state solution as an end to the conflict.
2. Claims all Israel – from the river-to-the sea, the ‘48 territories, the interior. 
3. Propounds the theory that Jews are a religious community only with no independent national rights.
4. Asserts the bizarre notion that Jews have no religious or historical connection to the region.
5. Devotes zero efforts with its citizens to promote a peaceful win-win solution.
6. Devotes tremendous efforts, resources and funds to incite and reward attacks on Israeli Jews. 

5/  Further, Irish politicians visiting the ‘West Bank’ will have noticed masses of posters, banners, maps, wall-plaques, murals, monuments and other such material.  But did they see a single one with Israel and ‘Palestine’ side-by-side in peace?  Did they see any sign or statement that expressed any sentiment other than hatred and hostility to Israel and open calls for its destruction?  In Palestinian governed areas is it even possible to safely express support for acceptance of Israel and publicly organize and demonstrate in support of that view?

6/   No matter what is said to visiting politicians or at international forums, every Palestinian faction sees the whole of Israel as OPT and none pursue a two-state solution to end the conflict.  In their view, the ‘occupation’ is not and never was confined to the West Bank.  Nor did the conflict begin with the West Bank and settlements or even the creation of Israel.  It preceded both.  

7/  This is why, both before and after the creation of Israel, a succession of opportunities for an Arab/Palestinian state alongside a Jewish state were rejected by the Arabs-Palestinians.  The reason is unambiguous, they do not seek an accommodation which accepts a Jewish state but an end to it.   In contrast, all the proposals were accepted by the Jewish side.   

8/  In reality, there is no Palestinian body with any political weight, with any social weight, with any economic weight, with any numerical weight, with any religious weight, or with any military weight, that sees the conflict differently.  To many in the ‘west’, the notion that Palestinian bodies seek the destruction of Israel is scarcely credible.  Yet unlike the struggles in Ireland, where none of the variations of the IRA had a plan to destroy England, the Palestinians do have such a plan for Israel.  This is the rock against which all previous peace attempts have crashed.   

Two Conflicting Concepts of the Two-State Solution

9/  To avoid this, an important step is to distinguish between two concepts of the two-state solution. Two-State Solution ‘A’ is where Jewish national rights are acknowledged and respected as a basis for a historical compromise where the two national movements agree to a solution based on mutual acceptance.    

10/  Unfortunately, the Palestinians and large parts of the Arab and Muslim world reject this characterization.  In its place is Two-State Solution ‘B’ where Palestinian denial of Jewish national rights is perpetuated and a Palestinian state is established alongside the Zionist Entity.  This is obviously the exact opposite of a peaceful two-state solution. 

11/   There is a strong tendency among ‘western’ advocates of the two-state solution to see their own aspirations for a peaceful solution as so self-evidently reasonable and equitable that it is unnecessary to examine actual Palestinian aspirations or take into account Israeli fears.  Only the formal fairness of the two-state solution is seen and not the fatal unfairness of the Palestinian rejection of Israel.  

12/  By not distinguishing between two-state solutions A and B, they appear entirely unaware or uncaring of the dangers to Israel – whatever its borders.  This leads to two common but erroneous assumptions:

• The conflict is essentially a territorial dispute and not an existential battle.
• The Palestinians will accept a West Bank-based state as an end to the conflict.

13/  Instead, looking at Palestinian claims since Israel captured the West Bank from Jordanian occupation in the 6-Day War of 1967, we find that:

1. From 1964 to 1968 they claimed all Israel but not the West Bank.  In fact, they specifically disclaimed the West Bank (see article 24 of the 1964 Palestinian National Charter).
2. From 1968 they claimed all of Israel and the West Bank (see the 1968 Palestinian National Charter).
3. Currently, the standard assumption of advocates of the two-state solution is that the Palestinians will be satisfied with a West Bank-based state.

14/   But is the final point true?  Ireland and others work on the assumption that it is.  Yet to carry the weight of a successful two-state solution, it needs to be demonstrated that the Palestinians have indeed accepted the presence of the Jewish state and that the above analysis of destructive Palestinian intentions is out-of-date.  

15/  If this were true, the situation would be radically transformed from a winner-takes-all conflict to a win-win dispute.  Therefore, evidence of such transformation needs to be unambiguous and reliable.   Sadly, no evidence at all was presented in Ireland’s statement to the ICJ.  Therefore, the following question arises:

Question # 3

Does Ireland have unambiguous, strong and reliable evidence that the Palestinians no longer seek the destruction of Israel and are willing to accept a West Bank-based state as an end to the conflict?  

16/  In the absence of such evidence, Israeli nervousness at the prospect of two-state solution B is surely not difficult to understand?  All serious political or legal proposals are mindful of consequences and need to answer the question: what next?  Instead, promoters of a Palestinian state appear to believe that its establishment alone will bring an automatic end to the conflict.  Your view on this would be welcome.  

17/   By contrast, Israel’s answer to the ‘what next’ question is that a type-B Palestinian state has zero prospects of producing the peaceful two-state solution desired by Ireland.  This is because a type-B state is bound to use its new status and power-base to escalate efforts to destroy Israel.  Hamas in Gaza is the perfect example.  In Israel this provokes alarm, excitable language and combative attitudes.  Many are shocked by such outbursts – but not so shocked by the Palestinian aim of destroying the Jewish state.  

18/   Further, given the Palestinian rejection of sovereign claims over the West Bank at the time of its capture by Israel, and the absence of mutually agreed borders or a binding legal ruling, in what legal sense can the West Bank be categorized as sovereign Palestinian territory?  Or is this really a non-legal political preference?   Therefore:

Question # 4

What is your understanding of the legal explanation for the claim that the West Bank subsequently became sovereign Palestinian territory?

The ONLY way to a peaceful resolution of the conflict 

19/ The Palestinian aim of destroying Israel makes a type-A territorial compromise IMPOSSIBLE.  It inevitably generates Israeli measures to protect itself and its legal rights to the territory (Palestinian Mandate, uti possidetis juris, Article 80 UN Charter).  This kills stone-dead the twin aspirations for a successful two-state solution and regional peace and security.  This means that if a two-state solution is to have any chance of success, the only option is Two-State Solution ‘A’.

20/  Therefore, any attempt to foist a type-B Palestinian state onto Israel as if Palestinian intentions to destroy Israel did not exist, will free the Palestinians of the necessity to abandon the prime obstacle to a successful and peaceful end to the conflict.  But if your remark regarding bringing an end to ‘any impediment’ to Palestinian self-determination is to be taken literally, a further question is necessary.   

Question # 5

What will Ireland do to help persuade or pressurize the Palestinans to jettison the Palestinian National Charter and abandon the aim of destroying Israel – and so set the framework for Two-State Solution ‘A’? 

21/   Without this there is no demand or insistence that the Palestinians undo the single greatest impediment to a peaceful resolution of the conflict – and the failures of earlier peace attempts will be repeated.   If, as you say, it is indeed time the conflict ended, it is time to take the right measures to achieve that, not those that make a solution impossible and will only prolong it. 

22/  You remarked on PM Netanyahu’s expressed opposition to the two-state solution.  As two-state solution B is the only version currently ‘on-offer’ he is not alone.  The reason is simple – optimism following the Oslo Accords has been beaten-out of most Israelis by series of traumatic experiences:

1.  the second intifada,
2.  the series of rocket-wars with Hamas from 2008-2023,
3.  the Hamas atrocities of 7th October, 
4.  the current ‘tunnel war’ in Gaza.

23/   This is why your answer to question # 5 above is so crucial if a peaceful resolution of the conflict and regional stability are to be attained.   Your answer to the following question would also be appreciated:

Question # 6

What will Ireland do to ensure that Two-State Solution ‘B’ is replaced by Two-State Solution ‘A’ in the work of the UN, EU and ICJ?

24/  Further, has Ireland, or the UN or the EU ever expressed indignation, condemnation and outright opposition to the openly declared policies of the PA and Hamas to wipe-out Jewish national self-determination?  And with Hamas widely considered a terrorist organization, where were the international demands over the last 18 years for its removal from power and its replacement by a government that does not want to ‘obliterate’ Israel?

25/   Despite the foundational aims and ‘legal obligations’ of the UN, the scarcely believable reality is that on this issue the international community has effectively abandoned Israel by turning a blind-eye to these illegal Palestinian aims.  This has allowed Hamas to misuse international funds to accumulate weapons and construct an unparalleled underground infrastructure with a single overriding purpose.  

26/    Therefore, to implement the UN Charter, ensure peace and security between states, and provide real hope of an end to the conflict, a further question suggests itself: 

Question # 7

What measures will Ireland now undertake at the UN, EU and the ICJ-AO proceedings, to ensure that these international organizations actively oppose the illegal Palestinian aims of seeking the destruction of Israel?   

27/   Finally, although Israel has chosen not to participate in the proceedings of the ICJ, there is no impediment to dialogue outside that framework.  Therefore, I look forward to your response to the questions above.  Perhaps you could also let me have copies of official statements on these topics by your office or the government?  Hopefully, this will go some way to relieve the impression of relentless one-sided hostility to Israel.