ICJ Ruling Deforms International Law into Non-Law

There is no way to sugarcoat it. As a lawyer, it is abundantly clear that the majority opinion, titled “Legal Consequences Arising From The Policies And Practices Of Israel In The Occupied Palestinian Territory, Including East Jerusalem,” is so contrary to international law and so devoid of any appropriate legal analysis under any functioning notion of what the “rule of law” is supposed to mean that it is to be disregarded in its entirety for having no legitimate value whatever and, indeed, reviled.

This comes after a complete review of the full 83-page opinion, all thirteen of the concurring opinions and declarations of the various judges (available here, along with the submissions by all of the participants), and the one dissent by Ugandan judge, ICJ Vice-President Julia Sebutinde,

We might call the majority’s opinion “non-law” or “un-law” – and classified, along with the ICJ’s plausibility ruling in the genocide case (see my prior article on South Africa vs. Israel) or the ICC’s jurisdiction ruling (see my prior article criticizing that decision), into a special category of cases that apply double standards, deform the facts before them, and ignore those tribunals’ own precedent that we might call “U.N.–Law.”

Others have written to criticize the majority opinion. These include two excellent and detailed articles by Anne Bayefsky and Joshua Rozenberg. I write here to emphasize additional and, I believe, powerful points that they did not make.

There are so many false narratives in the majority and concurring opinions that cataloguing them all would be only partially useful. But the two most egregious – the ones that require any thinking person to reject those opinions as non-law – are these:

1. The “facts” are ahistorical – or more accurately perhaps, anti-historical; the majority and concurring opinions engage in a one-sided, cherry-picked version of history. For example, as Anne Bayefsky points out, according to the majority opinion, the various conflicts between Israel and its neighbors (1948, 1967, 1973, and more) simply “broke out.” Apparently, they arose from spontaneous combustion, without any mention that on each of these occasions, the Arab countries were violent aggressors – as was Hamas on 10-7 and other occasions – with expressed genocidal goals of annihilating the nation of Israel and every Jew who lived there. In the entire 83-page of opinion, there is not one reference to this history.

Indeed, the majority opinion goes so far as to confirm that it did not have to make any findings of fact to reach its conclusions (Paragraph 77): “In these advisory proceedings, the Court considers that, in its request, the General Assembly has not sought from the Court a detailed factual determination of Israel’s policies and practices. The object of the questions posed by the General Assembly to the Court is the legal characterization by the Court of Israel’s policies and practices. Therefore, in order to give an advisory opinion in this case, it is not necessary for the Court to make findings of fact with regard to specific incidents allegedly in violation of international law.” (emphasis added). This is a complete abrogation of a fundamental judicial function.

2. The opinion assumes – without any fact-finding or legal analysis of any kind – that the territory is “Occupied Palestinian Territory.” (See, e.g., Paragraph 86 of the majority opinion: “The questions posed by the General Assembly are premised on the assumption that the Occupied Palestinian Territory is occupied by Israel.”). The majority opinion adopts this assumption – and everything in the entire opinion follows from this one false starting point, including the references to the Fourth Geneva Convention. Everything flows from the assumption that Israel’s presence in the territories at issue is as an “occupier.”

This second assumption is the worst of all. Under the well-settled international law doctrine of uti possidetis juris (which is the same doctrine that created the internationally recognized borders of Lebanon, Syria, Iraq, and virtually all of the African nations that came into existence after European colonial powers left), Israel – and only Israel – is entitled to sovereignty over all of what the majority improperly defines as “Occupied Palestinian Territory” or “OPT” (which the majority opinion defines in Paragraph 78 as encompassing “the West Bank, East Jerusalem and the Gaza Strip”).

As discussed in depth in my prior articles on this subject (see here, here, here, and here) with citation and links to relevant legal authorities, Israel is not and cannot be an “occupier” since Israel is and has been since its Declaration of Independence, in fact and in law, the legal sovereign of all of the West Bank, all of Jerusalem, and all of the Gaza Strip. From 1948 to 1967, Jordan was the illegal occupier of the West Bank and Jerusalem, and Egypt was the illegal occupier of Gaza. When Israel militarily regained possession of these territories in 1967, it was doing nothing more than taking back its own land. This was without prejudice to ownership rights of individual Palestinians as to any plots of land – that ownership was unaffected. The discussion here is about sovereignty, not ownership.

Once the false foundation arising from the incorrect assumption of  “occupation,” is removed, the rest of the majority opinion falls like the house of cards that it is. The Fourth Geneva Convention provisions on the obligations of the Occupying Power, for example, do not apply by their own terms because Israel is not, and has never been for even one millisecond, an Occupying Power as defined by the Geneva Convention. The same is true for every other principle or convention cited in the majority opinion – once the assumption of “occupation” falls away, so does the rest of the rationale for the findings and rulings.

It would be one thing if the majority – or any of the concurring opinions and declarations – had at least considered uti possidetis juris, even if it were to reject its application here for one reason or another. We might criticize that decision, or not, based on the quality of the reasoning for the decision.

But, crucially, neither majority opinion nor any of the concurring opinions/declarations even mention the existence of uti possidetis juris as a legal principle to be considered and evaluated. This is judicial malpractice at its most obvious.

It is not as if the fourteen judges who joined in the majority opinion should not have been aware of the doctrine. The fifteenth judge, ICJ Vice-President Sebutinde, features a discussion of it prominently in her dissent. How is it that she knew of the doctrine and the rest of the supposedly eminent international jurists did not? It is impossible to believe that only Judge Sebutinde realized the potential application of this long-established legal doctrine.

Further, while this failure to evaluate the application of uti possidetis juris is the most serious and fundamental flaw in the majority opinion, it is far from the only important one. Judge Sebutinde’s dissent also raises the question of the legality of Israel’s presence in the disputed territories due to its self-defense (Dissent at Paragraphs 86-87). But even she does not fully address the issue – because another legal principle at issue is the right of a state to acquire sovereignty over land due to a defensive war.

The question of acquiring sovereignty via a defensive war is most often discussed in the context of Israel’s annexation of the Golan Heights from Syria; Golan was not part of the British Mandate, and therefore the doctrine of uti possidetis juris does not apply there. Nonetheless, legal analysis suggests that, while less well-settled than uti possidetis juris, international law as it existed in 1967 permitted such acquisition in non-aggressive conflicts. For example, see this 2018 Congressional testimony by Professor Eugene Kontorovich and this 2019 analysis by Dr. Matthijs de Blois, Senior Fellow of thinc.

Part of the logic supporting this principle is this: those initiating an aggressive war – where the goal is often the acquisition of land by force – should face the risk of losing land to the party defending the aggressor. Otherwise, the aggressor would have much more limited risks and more incentive to be an aggressor, since it would arguably be entitled to recover territory occupied by the defender in response to the aggression.

There are pros and cons to this approach, as discussed most often regarding the Golan Heights, but the point here is that the same  principles also apply to the West Bank, Jerusalem, and Gaza, even if one rejects application of uti possidetis juris. It is undeniable, and not seriously disputed, that the 1967 Six-Day War was a defensive war for Israel. Israel, having taken possession of these territories through a defensive war, was and remains entitled to exercise sovereignty over them.

The further point is that this concept is also not mentioned at all in the majority opinion. This proceeds from the majority’s primary fallacy – the court’s untested and unevaluated assumption at the outset that the areas at issue are “Occupied Palestinian Territory.”

It is not at all unusual for people to criticize the logic and reasoning of US Supreme Court decisions. But at least in SCOTUS cases, the justices take the time to explain their reasoning and to discuss those arguments made by the parties with which they disagree. Further, it is common practice – indeed, so common that it is notable on the rare occasions when it does not occur – for the majority to respond to arguments made by the dissent. We might strongly agree or disagree  with any given SCOTUS opinion, but at least we almost always have confidence that the Court has considered arguments and authorities that it might eventually reject.

Readers of judicial rulings should expect no less. When judges do not even consider important arguments, authorities, and facts, they fail to function as “judges,” and instead become politicians. When they accept one-sided arguments and never even mention the counterarguments, their determinations are not entitled to respect.

The ICJ’s most recent advisory opinion, non-binding though it may be, establishes that it is not, in fact, a court of “justice.” Instead, it demonstrates that the time has arrived for the United States and other democracies to reject its existence and stop funding what has now become, unfortunately, a kangaroo court merely repeating the anti-Israel, antisemitic bias of the rest of the United Nations. It is time to reject “UN-Law” as the non-law it is.