Well, the International Court of Justice has spoken on Israel-Palestine once again. This time they have issued an advisory opinion on the question of whether or not Israel’s long-standing occupation of the Palestinian territories is illegal. After 57 years, one might say it’s about time.
I say: at last. This matter came to the Court in December, 2022, when the UN General Assembly asked for advice on the legality of Israel’s occupation of the West Bank, East Jerusalem and Gaza.
I always thought that an advisory opinion was just that – advice on law from the world’s highest court. You can take it or leave it. It’s just advice. Investigating the ICJ for this piece, and watching the 2+ hour video of this most recent ruling, I realized that the Court is interpreting law that exists. We don’t need a trial to see if the law is correct. This eminent body of 15 jurists, elected by the UN to serve 9 year terms, comprising the world’s leading specialists in international law, is giving us the law as it already exists. What they are saying is international law as set out in the 4th Geneva Conventions, 1949, when the UN was established. It seems to me the name “advisory opinion” is a bit misleading. It’s more than an “opinion” – it’s international law. That’s why legal analysts call it a “ruling”. I recognize that many of you, dear Readers, knew that already; for me, it was a bit of a revelation, and a very good one to boot.
Supporters of Israel “right or wrong” will of course say that it is only an advisory opinion and therefore carries no weight. They couldn’t be more wrong. Actually these determinations by the world’s highest court hold a great deal of weight, and their impacts will be felt over the days, months, and years ahead. First though, what is the gist of the ruling?
According to the World Court, occupations in themselves are not illegal, but they have to fall within two categories to make that claim:
- They have to be military in nature, and only military. They have to have as their purpose protection of the security of the occupying state as well as safeguarding the rights of the occupied people. That’s why there’s a prohibition in the Geneva Conventions of occupiers settling their own people in occupied territory. By 1949, the international community declared itself past the time of colonization of other people’s land.
- They have to be temporary. They are only supposed to last while negotiations are taking place to restore civilian rule and allow the occupied people self-determination. This condition may explain why so many were beginning to wonder: is it really an occupation? How could it be if it has gone on for so long, for 57 years?
Israel’s occupation of Palestinian territory since 1967 has been found by the world’s highest court to breach both of those conditions. Very soon after the occupation, settlement outposts began to be established by Israel, even though the Israeli government was well aware that it was illegal under international law to do so. The Court itself references Theodor Meron – Israel’s foreign ministry legal advisor in 1967- warning the government that establishing civilian
settlements in the occupied Palestinian territories “contravenes explicit provisions of the Fourth Geneva Convention”, provisions which were “aimed at preventing colonization”. Nine days after his memo, the Israeli government helped a group of young Israelis set up the first settlement: Kfar Etzion.
A terrific book on this era is “The Accidental Empire: Israel & the Birth of the Settlements 1967- 1977”, by Gershom Gorenberg. He is a well-known Israeli historian and journalist who lives in Jerusalem. His book details the entire settlement project during that decade. Gorenberg also “shows how three American presidents turned a blind eye to what was happening in the territories, and reveals their strategic reasons for doing so”. (Cover notes) That “blind eye” continues to this day, despite occasional western expressions of concern about the expansion of settlements, There’s no actual word of condemnation of their very existence.
From those early days of a few ultra-religious nationalists establishing outposts, the settlement population in the West Bank & East Jerusalem has grown to around 700,000, and a number of the settlements are “small cities, such as Ariel and Maale Adumim, with shopping malls, parks, public pools, synagogues, factories, libraries, schools and colleges”. (Jonathan Cook, The World Court has cleared the fog hiding western support for Israel’s crimes. 23 July,2024. First published in Middle East Eye). I’ve been to Maale Adumim, and it was a shock to see the vast green lawns, European–style homes and swimming pools of this settlement, for Jews only, just outside Jerusalem. Less than ½ hour away in East Jerusalem, water is extremely scarce for Palestinians who all have black rain catchment barrels on their roofs because of the exorbitant prices Mekorot, the Israeli water company, charges them for their own water. You can also tell where Palestinians live because the roads are very run-down, garbage is often not collected, and sidewalks are non-existent or crumbling. There are army checkpoints but no police presence to protect against crime, and yet the streets are alive with people trying just to live their lives. I was never afraid walking those streets alone at night. But I digress; back to the ICJ!
This ruling has to do with the West Bank, East Jerusalem and Gaza. It does not affect the state of Israel itself (20% of whose population is Palestinian), only the occupied territories. Some Israelis believe that there is no occupation of Gaza since Ariel Sharon withdrew the Jewish settlements from the Gaza Strip in 2005. Gaza, under full Israeli administrative control, plus air, sea & land blockade, is indeed part of the occupied territories, so even though the Court does not make this link, because it is yet to rule on the genocide question, the current onslaught against Palestinians in Gaza is actually a war crime; it violates the first condition of establishing an occupation: protection of the occupied civilian population is mandated under international law. Stay tuned.
(Next week: Scope of the advisory opinion.)
