Tricks of the ICJ Report on Israel

1/ As expected, the Advisory Opinion of the International Court of Justice, the legal arm of the UN, excoriates Israel on a wide range of issues stemming from what it insists is Israel’s prolonged occupation of Palestinian territory. The central accusations of the ICJ are that:

The West Bank is Palestinian territory.
Israel occupies the West Bank.
Israel prevents Palestinian self-determination.

2/ Despite not being legally binding on anyone, it will be claimed that the Advisory Opinion should be respected and treated as if it were. Therefore, it will be useful to understand the core arguments of the Court – especially as the remedies it ‘ordered’ will be repeated ad nauseam: that the ‘occupation’ should end immediately, the settlements should be evacuated, and compensation should be paid by Israel. It must be noted that Israel declined to participate in the proceedings.

3/ Given the significance of these issues, it could reasonably have been expected that the ICJ would have undertaken a thorough test of the competing legal and territorial claims of Israel and the Palestinians. Instead of such a comparison, it adopted a far simpler approach: it completely ignored Israel’s legal claims as if they were non-existent, and adopted an entirely one-sided account in support of the Palestinians.

Is the West Bank Palestinian territory?

The Case for Israel

4/ To have examined the missing legal case for Israel, the starting point would have been the post-First World War settlement in which the League of Nations established a mandate system where some proto-nations were to be guided to independence by more experienced states. Britain became the Mandatory power for Palestine with the prime function of establishing Jewish national and settlement rights (Article 6) for the future ‘Jewish National Home’. Yet the only paragraph in the ICJ Report about the Mandate (para 51), failed to mention this. As various Arab national rights were established elsewhere in this way, only Jewish national rights were included in the Mandate for Palestine.

5/ Secondly, the Report could have noted that soon after the Mandate was established, Britain split the mandated territory into a region for an Arab state (about three-quarters of the territory), which eventually became Jordan, with the remainder for the Jewish National Home. This established the eastern territorial boundaries of Mandatory Palestine as the river Jordan – acknowledged in para 51 of the ICJ Report.

6/ What was not acknowledged was that under the customary international law of uti possidetis juris the boundaries of new successor states would be those of the legal authority immediately prior to independence. This was the case with the independence of Latin and South American states from the Spanish Empire, throughout African decolonization, and more recently the break-up of the Soviet Union. The purpose of the rule was to prevent internal disputes from derailing independence. Therefore, as the Jordan river was the eastern boundary established by the Mandatory power, it should have been the border of the Jewish National Home on its independence the day following British withdrawal. None of this is mentioned by the Report.

7/ Thirdly, the Report could have noted that Article 80 of the UN Charter confirms that the rights of states or peoples under the League of Nations system of Mandated territories were not to be altered or ended. Instead, following the Second World War they were to be continued by the United Nations as the successor body to the League of Nations. This was also missing from the Report.

8/ These three arguments present a very strong case for Israel. None of them are particularly obscure. Yet none are discussed or even mentioned by the ‘World Court’.

The First ICJ Argument for Palestine Statehood

9/ The ICJ conclusion that the West Bank is Palestinian territory rests firstly on the entirely non-legal ‘argument’ based on the habitual use by the UN of such phrases as Occupied Palestinian Territory. In fact, the ICJ Report says as much by its statement that:

The questions posed by the General Assembly are premised on the assumption (emphasis added) that the Occupied Palestinian Territory is occupied by Israel. (para 86)

10/ An obvious question is: what supports this assumption? The answer is that this was the assumption of the Advisory Opinion of 2004. But what was that assumption based on? It was based on the same standard UN usage of these terms which expressed a consensus of political views in the UN. Therefore, instead of developing a strong legal argument, the current ICJ Report merely continues its reliance on the preferred policy recommendations of the UN which are treated as if they were legal rulings. But a political declaration of policy is not a legal declaration. In any case, neither the UNSC nor the GA possess powers to make legal determinations.

11/ In other words, we have erroneous legal assumptions based on erroneous legal assumptions which merely assume what needs to be demonstrated. In essence, the ICJ asserts a politically-based Palestinian case, masquerading as if it were a legal case.

12/ But there is an added factor – also ignored by the ICJ Report – which would have created severe difficulties had the ICJ considered it. This is that in 1967, when Israel captured the West Bank from Jordanian occupation, the PLO did not claim the West Bank. As can be seen from its Palestinian National Charter (1964), it claimed the entire territory of Israel – but not the West Bank. To make things even worse for the ICJ view, Article 24 of the Charter specifically disclaimed Palestinian sovereignty over the West Bank, which was viewed as Jordanian.

13/ Therefore, if the Palestinians themselves rejected any claim to the West Bank in 1967, in what sense can the ICJ consider it Palestinian? To this question there has been no legal answer. In reality, it could only have become Palestinian subsequently if a legally-binding ruling by an authoritative legal authority could in some unexplained way have overruled i) the Mandate for Palestine, ii) uti possidetis juris, and iii) Article 80 of the UN Charter. Lacking this, such a conclusion could only have been secured by agreement with Israel. In fact, the ICJ Report is silent on the absence of both. Subsequently, in its second Palestinian National Charter (1968), the PLO reversed its position and claimed for itself the whole of Israel including the West Bank.

14/ Further, in claiming that the West Bank is Palestinian territory, the ICJ ignores the Armistice Agreement between Israel and Jordan of 1949 which effectively created the West Bank. This specifically states that the Armistice Lines are not borders but simply the positions where the warring armies stopped fighting in 1949. In this way, both parties kept their future claims open. Yet without any legal authority to decide on any borders, the UN and the ICJ have unilaterally declared that the Armistice Lines have become the international border between Israel and Palestine. Once again this violates i) the Mandate for Palestine, ii) uti possidetis juris, and iii) Article 80 of the UN Charter. Once again it reflects UN policy, not law.

Does Israel occupy the West Bank?

15/ A further difficulty for the ICJ position is that if the West Bank cannot legally be considered Palestinian, Israel cannot be said to occupy Palestinian territory. Further, according to the standard definition of occupation in the Hague Regulations, occupation was the military control of the territory of another state which was the legitimate power. This means that by the ‘traditional’ definition Israel could not be said to occupy the territory as Jordan was never the legitimate power – having occupied the territory itself in the war of 1948-9.

16/ Nevertheless, could it be that Israel occupies the territory in the sense that no matter who was the previous legitimate power, the territory did not belong to Israel? This is the ICJ claim. It is also the direction of legal thought by the ICRC and others to broaden the standard Hague Convention definition. In effect, this modification would fill the gap left by the ICJ’s unadmitted inability to show that the West Bank was Palestinian or Jordanian but still allow Israel to be condemned as an occupier. But this again falls flat on the grounds of i) the Palestinian Mandate, ii) uti possidetis juris, and iii) Article 80 of the UN Charter.

17/ There is some resemblance here to the notion that the West Bank was unallocated territory: a left-over from the break-up of the Ottoman Empire at the end of the First World War. But who is or was supposed to perform the allocating? It cannot be the UN as it possesses no territory or legal powers to divide or allocate. It can only make recommendations. Likewise, it cannot grant anyone a state, but it may or may not recognise a state. In any case, the ICJ argument falls flat because, as shown above, the territory was indeed allocated.

18/ Yet a further attempt by the ICJ to condemn Israel also collapses. The ICJ Report quotes the famous preamble to UNSCR 242 (1967) which declares the inadmissibility of the acquisition of territory by war. That is, Israel is said to have acquired the West Bank by the inadmissible use of war. But this is false. Jordan had attacked Israel in the 6-Day War of 1967. Under Article 51 of the UN Charter, Israel legally defended itself and in the process retrieved the territory that Jordan had ‘acquired’ in 1949 by its own ‘inadmissible’ use of war. Therefore, Israel’s capture of the West Bank was entirely within the legal rules of war. It was also within the borders of Mandatory Palestine and therefore within the sphere of uti possidetis juris and Article 80 of the UN Charter.

The Second ICJ Argument for Palestinian Statehood

19/ The second argument in support of Palestinian statehood aspires to be based on legality rather than opinion. In fact, without providing any legal justification, the ICJ seems to believe that self-determination for the Palestinians is the cornerstone argument for Palestinian statehood. And it has become the dominating passion of many who advocate Palestinian statehood. The reasoning is simple: the Palestinians are a nation without a state and therefore they should have a state. As confirmed by the UN Charter, a key aim of the UN is:

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples
(Art 1 para 2)

20/ Many Western supporters in particular have been unable to imagine any palatable alternative to the simplicity and clarity of the implied two-state solution. With the recognition of a Palestinian state seen as morally and legally justified, this essentially settles the issue for many and no further elaboration is required. Further, being considered so self-evidently superior to alternatives, it is unnecessary to examine actual Palestinian intentions or take into account Israeli fears. The ICJ is completely uninterested in either. In this way, it completely misses that the driving force of the conflict, and the reason it has been prolonged for so long is the Palestinian rejection of the Jewish state and their intention to destroy it.

21/ Such stunning disregard for causes and consequences focuses only on the formal reasonableness of a two-state solution and not the fatal unreasonableness of the Palestinian rejection of the Jewish state. By reversing reality in this way, the ICJ maintains that the prolonged occupation is responsible for:

the ongoing violation by Israel of the right of the Palestinian people to self-determination, (para 72a)

Does Israel Prevent Palestinian Self-determination?

22/ In fact, there is not a word in the Report regarding the various occasions, both before and after the creation of Israel, when proposals were made for an Arab/Palestinian state alongside Israel (for example, 1937, 1947, 2000, and 2008). On every occasion they were accepted by the Jewish/Israeli side and on every occasion rejected by the Arab/Palestinian side. These are hardly obscure historical events. In any case, given the expertise of the ICJ and the resources at its disposal, it is surely impossible that the judges were ignorant of them. Therefore, what explains these omissions?

23/ A possible answer is that to have included them would have disturbed the theme that presents Israel as all-bad and Palestinians as all-suffering. This would have destroyed their own accusation that Israel prevents Palestinian self-determination. It would have also obliged the ICJ to account for the serial rejection of these opportunities by the Palestinians. This in turn would have acknowledged that Palestinian aspirations were aimed at the whole of Israel and not just a redivision of Mandatory Palestine. Therefore, as with other awkward facts, it was suppressed. The ICJ was also secure in the knowledge that many members of the UN, are not at all perturbed by the absence of truth and accuracy or UN rules where Israel is concerned.

24/ Both the UN and ICJ speak as if self-determination for the Palestinians were an unconditional right under international law. That is, it is said to be a fundamental or peremptory norm (jus cogens) that permits no exemptions. However, this would cut across uti possidetis juris. In reality, the relationship between uti possidetis juris and self-determination is legally unclear and undecided. In practice, self-determination is both conditional and limited – as with many apparently unconditional laws. For example, in modern western property owning democracies the right to own property does not permit the ownership of slaves. Likewise, although the right to self-determination implies that national groupings should be free to form their own government over their own territory, it does not permit them to destroy a neighbor-state and eliminate its right to self-determination.

25/ Yet the ICJ Report (para 71) uncritically quotes the GA resolution of May 2024 that:

. . . the State of Palestine (added emphasis) is qualified (emphasis added) for membership of the United Nations in accordance with Article 4 (emphasis added) of the Charter of the United Nations and should therefore be admitted to membership in the United Nations.

26/ This is nonsense. Article 4 actually says the opposite: that the condition or limit on the right of acceptance of statehood is that UN membership is open to peace-loving states (emphasis added). Sadly, ignoring its own rules in this way is not a problem for many member-states of the UN. For example, the peaceful state of Taiwan is denied membership due to objections from China (no UN demands for a two-state solution there). Further, apart from the detail that Palestine is not a state, the PLO, in its PA clothing, lives and breathes for the destruction of Israel – without so much as a peep of protest from the UN or ICJ about the supposedly fundamental right of Jewish self determination. Yet with their ideology, program and practice dominated by the intention to eliminate Israel, the Palestinians are anything but peaceful. Therefore, they are absolutely not qualified for UN membership.

27/ To reinforce this, Article 1, para 1 of the UN Charter states that the foundational principles for the formation of the UN are:

To maintain international peace and security and to that end take effective collective measures for the prevention and removal of threats to peace.

28/ From these basic premises, two obvious questions shout out:

How can regional peace, security and international law be served by establishing a state that intends to destroy another state?

Where is the UN outrage at this core Palestinian policy and what ‘collective actions’ are the UN, ICJ proposing to prevent such an eventuality?

29/ The answer is that many UN member-states are not the slightest bit interested in either question. Nor are they at all bothered by the fact that for those wedded to the standard anti-Israel and pro-Palestinian obsessions of the UN these questions are unanswerable. As a result, they are avoided like the plague by the ICJ, the UN, the EU and all the states that proclaim confidence that a Palestinian state alongside Israel is the path to peace, prosperity and security for Israel and the region.

30/ In sum, the ICJ Report demonstrated zero interest in assessing competing legal rights – only in the reassertion of Israel’s guilt by repeating established UN policies formulated many years ago. Consequently, completely without answers to even the most basic of questions, combined with its practice of ignoring a wealth of relevant facts, the ICJ Report can be summed-up as an unscrupulous and totally one-sided travesty of fairness and impartiality. A real ‘hatchet-job’.