We all should read the ICJ opinion – this week I experienced it

Israeli officials began decrying the International Court of Justice advisory opinion before it was read out a week ago. Others have belittled the Court’s conclusion that the Israeli presence in East Jerusalem and West Bank is illegal. Since then, there have been so many events that the discussion was cut short. That is unfortunate.

It behooves everybody who wants to voice an opinion and didn’t hear it read live to read it before giving your opinion. It won’t happen, but there ought to then be an in-depth national discussion regarding the content.

Instead of blindly supporting or lashing out at an allegedly antisemitic document violating Israel’s sovereignty and security, I suggest a calm, serious, and reasoned discussion based on what the advisory opinion actually says. Is it factually correct? Is it well grounded in international law applicable to any occupying power, or tailored to unfairly single out and condemn Israel? Is it a canard or mirror reflecting back to us actions that should cause us to do some soul searching? Are we still committed to our Declaration of Independence, that Israel “will be faithful to the principles of the Charter of the United Nations”?

What is new and precedent-setting in the advisory opinion is the determination that Israel has lost the right to be an occupying power that exists in international law because of our consistent violation of the laws governing occupation.

I have always pointed out that it was wrong to say “The illegal Israeli occupation.” I can no longer say that. Although there is a lacuna in international law because the authors of international occupation law never envisioned a 57-year-long occupation, they never actually outlawed occupation. They regulated it. Israel has violated many aspects of international occupation law over the years, but the Occupation itself wasn’t inherently illegal. Now the ICJ is calling Israel to account for having so consistently trampled the laws that govern any occupation anywhere in the world.

According to the advisory opinion, the Israeli occupation is now a de facto annexation. The opinion states that it is now the obligation of Israel and the international community to end the Occupation as quickly as possible and compensate Palestinians for their plundered resources.

We can rightly point out that many human rights violators around the world have not been as carefully scrutinized as Israel, and demand that the Court write advisory opinions on other countries as well. Arguably the opinion does not sufficiently address Israel’s legitimate security needs. I of course believe that we have a right to defend ourselves.

However, the truth is that we have brought this upon ourselves. Time after time, including just this week, I have personally witnessed examples of the Israeli actions or lack of action the opinion cites. And this week, I told perpetrators to their faces, “What you are doing right now is precisely what brought this opinion upon us.”

It is hard to argue with the facts. One merely needs to look at the maps from 1967 until today showing the growth of settlement spheres of control and shrinking Palestinian living space. It is impossible to deny that there is an unfair and discriminatory discrepancy between zoning and building for Palestinians and Israelis, even though according to the Hague Conventions zoning and building authority should have remained in Palestinian hands other than in very limited instances where there might be legitimate security considerations.

State lands should have been entirely for Palestinians’ use. Certainly, it was wrong to declare large areas of the Occupied Territories as live fire zones or to employ other devices of land control. Minister Bezalel Smotrich has been going several steps beyond the already flagrant planning discrimination, but the opinion correctly cites the thousands of Palestinian homes that have been demolished because of the near impossibility of obtaining a building permit that should never have been Israel’s prerogative to deny.

Clearly, Israel invests far more effort and resources in arresting and prosecuting Palestinians who attack Jews or damage Jewish property than it does to respond to Jewish attacks on Palestinians or damage to their property. The failure of Israel to fulfill its most basic obligation to protect all those under its control is undeniable. I have all too often witnessed the verbal and legal gymnastics the police and legal system employ to find excuses not to investigate, indict or prosecute.

The advisory opinion cites all of these facts and more.

Yesterday I started my day by taking two older farmers from El Khader near Bethlehem to get a glimpse of their lands next to the Elazar settlement. One was over 70. In May, we Israelis had pruned their vineyards because the Israeli District Coordination and Liaison Office backtracked after saying that at least one of them should be allowed to enter his lands, and settlers now in reserve duty expelled them.

When the 70-year-old came alone without us, he was beaten. The legal advisor for the army’s Civil Administration told us that they should be allowed, but then didn’t answer our calls for two months. Finally, two days ago, an officer said he would inform the relevant authorities that we would go in the next day. That didn’t prevent the farmers from being expelled again by a settler in uniform who said the legal advisor’s opinion was of no interest to him.

Exploitation of power to deny property rights with the intent of eventually taking over the lands

Later in the day, settlers from the new outpost “Yinon’s Farm” brought their flocks up to homes in Mukhmas Village. They generally appear twice a day, although sometimes keep their distance. Yesterday, settlers audaciously stole chairs next to the door. The outpost was evacuated by the Civil Administration shortly after being set up without any authorization, but was back the next day. For a while, two concerned soldiers made a real effort to demand that the settlers keep their distance. But they have rotated out. Even when they were here, other soldiers actually supervised the theft of sheep by settlers who dragged off sheep as the owner was forced to sit on the ground and the chairperson of my organization was ordered to keep his distance. Now the army has made it clear to me that it is not their responsibility (as international law mandates) to protect Palestinian homes and flocks, and said not to call them as the previous soldiers had allowed.

Unprotected

From Mukhmas, I had to run to Khirbet al Marajim to confront two settlers on an all-terrain vehicle cruising among the homes. Two additional settlers were with their flock next to the homes. The Palestinians report that before we managed to arrive, one of the settlers hit one of the Palestinians with his rifle butt, pointed the gun at him, and threatened him.

In between these incidents, I photographed the huge growth of the Ma’aleh Ahuvia outpost, and the surrounding devastated fields and olive groves of Dir Jarir. For two years or so I tried repeatedly to get the army and police to come when the devastation was occurring and accompanied many of the landowners to submit complaints. The complaints led nowhere, the landowners have largely given up because they realize they will never get justice from the Israeli legal system, and the outpost grows.

Unprotected

I thought it ironic that last week, as the opinion was read out, we read Parshat Balak. In it, we learn that our enemies can’t defeat us, but we can defeat ourselves. Bilaam is incapable of cursing us, but we bring disaster upon ourselves by giving into the temptations of licentiousness and idolatry. How appropriate. This week, we read Parshat Pinchas in which the daring daughters of Tzelofechad stand up for their property rights and a patriarchal God backs them, at least up until a point.
Many have commented that our High Court has served as Israel’s flak jacket, because according to international law, international courts are only to take action if there isn’t an internal mechanism upholding human rights and international law. Israel has falsely but successfully argued that we have independent judicial and law enforcement systems that investigate and prosecute human rights abuses. The fact is that our High Court, even under Justice Barak who is so maligned by the right wing, has issued rulings propping up the Occupation more often than it has ruled according to international law. However, it was nevertheless symbolic that the Barak’s last case was regarding the rights of the cave dwellers of Masafer Yatta with Palestinian defendants, like the daughters of Tzelofechad, present in the courtroom to argue for their rights. I remember telling the story of the daughters of Tzelofechad to my young daughter that evening, and drawing the parallel. Unfortunately, the Israeli High Court has now green lighted the expulsion of those same families.

There are no teeth to this advisory opinion. It is therefore up to Israel and the international community to decide whether or not to honor it, as the court has requested. We ought to either do so, or give carefully thought out and non demagogic reasons to oppose parts or all of it. We need to also carefully consider and debate the minority opinions.

Ultimately, I don’t believe we can challenge the facts presented in the advisory opinion. The legal reasoning is soundly based on principles of international law that should be applied to any occupation anywhere in the world.

The question therefore becomes whether or not Israel and our legal system honor international law, as we committed to in our Declaration of Independence. I have already pointed out that up until now our High Court has served as the flak jacket for legal action against Israel’s violations of the laws of occupation. While the ICJ opinion does not give us the option of correcting our ways, whether or not our law enforcement and judicial systems are willing to implement the opinion is a test of our compliance with international law that should be followed closely.

We can of course make many arguments why we don’t need to recognize or honor international law or its authority over Israel. We can indignantly cite national sovereignty, although international law does not allow us to be sovereign in occupied territory. We can manipulate Judaism and argue that the world must honor God’s Promise in the Torah that these lands are ours. We can maintain that the oppressive actions that engender hate and thus undermine our security are in fact essential to our security. We can argue that two thousand years of the oppression of Jews grant us privilege that overrides the rights of others. No doubt there are additional possible arguments.

However we can’t dismiss the advisory opinion out of hand or refuse to examine our actions over the past 57 years, yet continue to maintain that we and our legal system uphold international law.

I conclude as I began: Please read the advisory opinion and let us have a serious national discussion on the opinion, on the commitment we made to international law in our Declaration of Independence, what our values are, and what our place is or ought to be within the community of nations.