The World Court’s decision is anti-Occupation, not ‘Anti-Israel’

On Friday, July 19^th, the International Court of Justice (ICJ) declared illegal Israel’s occupation of the territories conquered in 1967. The Court based its ruling on pervasive Israeli violations of international law in its conduct of the occupation, which together amount to the illegal annexation of occupied territory and the denial of the Palestinian right to self-determination. The illegality of annexation and denial of self-determination both derive from the broadest problem with the Israeli occupation: its defiance of the international legal principle that only temporary military occupations are permissible. Israeli actions since 1967 make it implausible to describe the occupation as temporary. The Court’s ruling can be debated on a number of grounds – but it is not, contrary to what the Israeli government and its right-wing supporters are saying, an “anti-Israel” decision, much less an “antisemitic” one.

This ruling is a major turning-point in public debate about the Israeli-Palestinian conflict, which has been thoroughly shaped by law for more than a century – at least since the 1922 League of Nations Mandate. The ICJ had already ruled in its 2004 “Wall” decision that Israeli settlements and some other Israeli actions are illegal. But the new decision concerns the occupation as such, not merely specific policies. Predictably, the Israeli government has reacted harshly to the ruling. Netanyahu called it a “lying decision”; Minister of National Security Ben Gvir called it “antisemitic”; Finance Minister and “Minister in the Defense Ministry” Smotrich declared that Israel should immediately declare its sovereignty over the West Bank, thus unwittingly proving the Court’s most far-reaching indictment of the occupation. The condemnation by the Israeli Knesset of the establishment of any Palestinian state, just two days before the ICJ’s ruling, heightens the ruling’s vast importance.

Most of the Court’s findings about Israeli illegalities come as no surprise to anyone versed in international law. In the first year of the occupation (1967-1968), then-Legal Advisor to the Israeli Foreign Ministry Theodor Meron had already explained to the government the illegality of some of the same actions that figure in the new ICJ decision: settlements, house demolitions, population expulsions, unilateral changes to borders. Other key illegal policies were not yet fully in place: above all, the establishment of two separate legal systems for Jews and Palestinians on the West Bank and the legal incorporation of the settlements into the State of Israel. These policies have heightened both the discriminatory, apartheid-like features of the occupation and the “de facto” annexation of at least parts of the West Bank – both violations of cardinal international legal principles. There is a broad international legal consensus that all these policies are illegal, ranging from all international courts who have considered the issues to a near-unanimity among legal experts; the only exceptions are a small number of right-wing writers, mostly current or former officials of the Israeli government and affiliates of right-wing think tanks.

Aside from the annexationist policies, the other major basis for the Court’s ruling was the denial of the Palestinian right to self-determination. This issue also derives directly from the principle that military occupations are only permissible if they are temporary. A prolonged occupation, in this case over 57 years, necessarily entails denying self-determination to the occupied population. Indeed, in modern international law, this denial is a central reason for the rule that only a temporary occupation is permissible. The ICJ has applied analogous forms of this principle in relation to other parts of the world, as in the 1971 Namibia Case, the 1975 Western Sahara Case, and the 2017 Chagos Archipelago Case.

These precedents shed light on the move that the new ICJ decision makes from the pervasive illegalities that have accompanied the Israeli occupation to its ruling that the occupation as such has become illegal – and that Israel should end it “as rapidly as possible.” While this phrase (“rapidly as possible”) is quite vague, the most obvious objection to this directive is that a “rapid” withdrawal could give rise to grave security dangers to Israel – as the Hamas onslaught on October 7^th highlighted. The Court’s majority opinion summarily dismisses this objection. Judge Charlseworth’s concurring opinion, by contrast, discusses it in depth. She nonetheless arrives at the conclusion that the right of self-defense cannot justify an occupation accompanied by such pervasive illegalities, particularly the de facto annexation of territory. In their joint dissenting opinion, three ICJ judges, Abraham, Aurescu, and Tomka, make the security issue central to their rejection of the notion that Israel must proceed to a rapid end of the occupation. Even these dissenters, however, agreed that the Israeli actions discussed in the Court’s opinion, particularly settlements, violate international law. Indeed, they voted for those parts of the Court’s ruling that declared that “the State of Israel is under an obligation to cease immediately all new settlement activities, and to evacuate all settlers from the Occupied Palestinian Territory” and that it must pay reparations for any damage that it has caused to the population.

Thus, even taking into account this dissent, the claim that the ICJ’s ruling is “anti-Israel,” even “antisemitic,” is simply baseless. Aside from the fact that most of the ruling commands a broad international legal consensus, several other factors must be considered. First, the Court rightfully treated Israel as a completely legitimate State, with all the rights as well as duties of States. While such treatment may seem like something that should be taken for granted, it constituted a total rejection of one of the arguments made to the Court that the very establishment of the State of Israel was illegal. Moeover, the Court, as it did in 2004, treated only the areas conquered in 1967 as occupied, implicitly ratifying Israel’s pre-1967 borders (including areas conquered in the 1948 war). Second, even more importantly, conflating opposition to the occupation with opposition to the State of Israel is wrong on many grounds. Indeed, it is precisely the most radical opponents of the State of Israel who make this conflation – arguing that the entire State of Israel should better be termed “occupied Palestine.” It is ironic that both the most extreme anti-Zionists and the extreme Israeli right-wing argue that the legitimacy of the State of Israel depends on the legitimacy of the occupation. Again, the Court’s discussion implicitly rejects any such stance. Third, much of Israel’s own citizenry opposes the occupation. This opposition is the predominant view among the 21% of Israel’s citizens who are Palestinian. It is also the view of a small minority of Jewish Israelis, particularly those active in human rights work and in other forms of anti-occupation activism. It goes without saying that it is the overwhelming view of Palestinians who live under Israeli rule in the occupied territory. They are not formally “Israeli” by citizenship, but they have lived under Israeli rule for more than 57 years.

Finally, a very large percentage of those Israelis and Diaspora Jews who have not actively  opposed the occupation recognize that the rule of law is crucial for a democratic society – and should thus respect the ruling of the ICJ, at least most of it. I have in mind those vast numbers of Israeli Jews and their Diaspora supporters who marched against the multi-pronged assault on the Israeli legal system that the Netanyahu government has been attempting since January, 2023. Respect for the International Court of Justice is part of the rule of law. Even those who might point to the security dangers lurking in a “rapid” Israeli withdrawal from the occupied territory should accept the substantive rulings of the Court concerning the illegality of longstanding Israeli policies: settlements, collective punishment, dual legal systems divided on ethnicity, population expulsions, discriminatory access to natural resources and government aid, and so on.

The ruling will disappoint, even enrage, many. The most ardent anti-Zionists will condemn the fact that the Court’s ruling is anti-occupation, but not anti-Israel. Some will even point to this fact as indicting international law as a whole for complicity with historical injustices. At the opposite extreme, the most ardent Israeli annexationists will denounce the ruling’s finding that the central Israeli policies that have governed the occupation are illegal. And they will be enraged at the Court’s declaration that the occupation as such has become illegal.

For those at neither extreme, the ruling should provide a basis for a new stage in international debate. The ICJ’s ruling is an “Advisory Opinion” and, in any case, the Court has no coercive means at its disposal. But maybe, just maybe, its call to respect international norms will be taken seriously by a wide spectrum of well-meaning people in the region and around the world.