The ICJ Ruling on Palestinian Territorial Rights

How can an international court be so prestigious and yet so politicized?

On July 19^th the International Court of Justice (ICJ) issued a non-binding opinion ordering Israel to terminate its prolonged “occupation” of Gaza, east Jerusalem, and the West Bank (collectively, the Territories). The opinion said Israel’s presence in these “Occupied Palestinian Territories” violated the prohibition against annexing territory by force and thereby impeded the Palestinian right of self-determination (autonomy).

Regrettably, the ICJ decision disrespects actual law and applies, instead, an imaginary legal regime. The court reaches its erroneous conclusions by starting with an unfounded premise. It assumes the Palestinians hold legal title to the Territories and Israel is a mere foreigner, thereby ignoring the rich, ages-old history of the Jewish people’s connection to, and indigeneity in, the region. Further, the court ignores two of the most fundamental issues at stake: the prolonged history of Palestinian war crimes; and Israel’s right of self-defense. A look at the court’s reasoning shows the magnitude of its flaws, which are grounded in its bizarre perspective that the relevant history began in 1967, the date of the supposed occupation.

The Palestinians do not Hold Title to the Territories

Israel’s sovereign right to the land of Israel and the Territories was secured by the San Remo Treaty of 1920, the Palestine Mandate of 1922, and Article 80 of the United Nations Charter of 1945. These legal instruments did not arise from thin air. They were a recognition of the aforementioned connection of the Jewish people to that area. Israel therefore exercised its sovereign rights by applying its domestic law to all of Israel and east Jerusalem, but refrained from legislating that broadly in the other Territories pending negotiation of “land for peace” deals with its Arab enemies.

Those legal pillars remained intact through the signing of the Israeli-Palestinian Oslo Accords of the 1990’s. The Oslo Accords delegated interim self-determination to the Palestinians over certain portions of the Territories. The “permanent status negotiations” planned by the Accords contemplate an ultimate Palestinian accession to sovereignty, with their sovereign domain covering a greater or lesser share of the Territories, depending on negotiable factors such as Israel’s security needs. The Accords represented a remarkable concession by Israel to end its conflict with the Palestinian people so the parties could live side-by-side in peace and security, even though the deal may require Israel to cede its strong claim to the West Bank, a claim rooted in both law and history.

The above-described binding laws form the customized legal landscape of the Israeli-Palestinian conflict. Although the ICJ lacks jurisdiction over Israel, it audaciously tries to subordinate these negotiated guidelines to an incompatible, ad hoc framework of occupation law. This egregious judicial overreach has produced misguided findings of lsraeli wrongdoing.

Israel is not Subject to Occupation Law

A state cannot occupy its own land. Israel’s sovereign entitlement to the Territories insulates it from the legal classification of an occupying power. Israel is further distanced from the “occupier” stereotype based on two more principles of occupation law: it lacks “effective control” over the Palestinian-controlled parts of the Territories; and per the Oslo agreements, its troops and civilians traverse the Territories by Palestinian consent. Therefore, the court should not have subjected Israel to occupation law.

Israel Is Not Annexing the Territories

Because Israel holds sovereign rights to the Territories, it properly applied its domestic law to the residents and land of east Jerusalem with no prior need to “annex” the district to its sovereign realm. Israel similarly applied its domestic law to the Israeli residents but not the land of the West Bank. It could apply domestic law in all respects to both the West Bank and Gaza, but in keeping with the Oslo Accords, Israel limits its military and civilian activities in those Territories. For example, the government authorizes housing construction in the West Bank only within the square mileage of Israel’s Oslo-assigned control, and Israeli residents in those neighborhoods may rent but not own their homes. Israel also adheres to Oslo by coordinating West Bank/Gaza infrastructure decisions with the Palestinians.

The ICJ ignores these legal realities. It calls the above housing developments occupation law abuses, foreign implantations designed to annex the Territories “by force.” In this novel construct, if Israel builds a home in the Territories, it is an illegal use of force, and if an Israeli family moves into the home, it is a war crime. Such prejudicial standards are unprecedented. They only confuse the issue of how best to address concerns that Israel’s land development policies are inconsistent with the goals of Oslo.

The kind of force authorized by occupation law is military force to maintain security. But the ICJ denies Israel any authority to maintain security, even for nonviolent measures of self-defense such as the West Bank security barrier.

If Palestinians oppose an Israeli action in the Territories, their required recourse is to invoke the dispute resolution process of the Oslo contracts, not to bypass their Oslo obligations by petitioning the ICJ. Even if one were to put the Accords aside, the only valid remedy for an occupation law violation would be to cure the violation, not to end the occupation itself. Halting an occupation would defeat the purpose of occupation law, which is to maintain order until the given armed conflict is resolved.

Israel Has Not Impeded Palestinian Self-Determination

According to the court, Israeli occupation policies in the Territories (primarily involving land use) impermissibly impede the Palestinian right of self-determination. However, Israel has already exceeded the requirements of occupation law via the Oslo Accords by giving the Palestinians temporary self-determination, including their own parliament, legal system, and administration of municipal affairs. In the Oslo permanent status talks with Israel, the Palestinians could make that autonomy perpetual, or even attain sovereignty. It is by following that course — as opposed to leaving the negotiating table and running to extracurricular venues such as the ICJ or the UN while resorting to terrorism — that the Palestinians can lawfully address their grievances.

Moreover, the ICJ’s one-sided concern for Palestinian self-determination tramples on the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, which instructs that the self-determination of a group (in this case, the Palestinians) may not disrupt “the national unity and territorial integrity of a country” (in this case, Israel).

The ICJ Ruling Impliedly Threatens Israel’s Existence

Although the ICJ’s biased ruling is ostensibly confined to the Territories, the implications are broader. Polling data show that most Palestinians believe all of Israel and the Territories, that is, everything “from the [Jordan] river to the [Mediterranean] sea,” is “occupied territory.” Those hardliners may interpret the ruling as a call to wipe Israel off the map, either by judicial process or otherwise.