ICJ opinion on Israel’s occupation upends the order that oppresses Palestinians

Fifty-seven years have passed since Israeli forces swept through East Jerusalem and the West Bank during the 1967 Arab-Israeli war, known in Israel as the Six Days War.

Ever since these areas have remained under Israeli military occupation. A brutal occupation to be sure.

But it was a legal occupation, according to the letter of international law, which sets out duties and responsibilities that an occupying power must uphold in territory under its control during armed conflict.

Certainly, many of the actions carried out by the Israeli government, above all the transfer of 700,000 settlers into occupied territory, are widely regarded to have been in direct defiance of international law.

Friday’s momentous advisory opinion from the International Court of Justice (ICJ) in The Hague, the UN’s top court, changes that.

The court has found that the entire occupation is unlawful and that Israel’s settlement policy is in breach of the Geneva Convention, which states that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”.

It has found, too, that Israel’s policies and practices in the occupied Palestinian territories amount to annexation of large parts of these territories, and that Israel systematically discriminates against the Palestinians who live there.

The court also advises that Israel’s practices and policies violate Palestinians’ right to self-determination.

ICJ President Nawaf Salam did not mince his words, saying: “The sustained abuse of Israel of its position as an occupying power through annexation and an assertion of permanent control over the occupied Palestinian territory and continued frustration of the right of the Palestinian people to self-determination violates fundamental principles of international law and renders Israel’s presence in the occupied Palestinian territory unlawful.”

From now on, it is not simply Israel’s conduct of the occupation that should be considered illegal. So too, in the opinion of the ICJ’s judges, is the occupation itself.

It should be understood that this ICJ case is entirely separate to the other ongoing proceedings at the court concerning Israel: South Africa’s complaint that Israel is committing genocide in Gaza, which the court has already ruled “plausible”.

Friday’s opinion is a response to a request from the United Nations General Assembly, filed in December 2022 and supported by 87 countries (though opposed by the US, the UK, Germany and Israel, among others). 

The UN General Assembly asked the court whether the military occupation of Israel should still be considered temporary (and therefore legal) in light of the fact that it has persisted for more than half a century.

Submissions to the court hearing asked the ICJ to take account of the massive expansion of settlements as well as many statements by Israeli politicians, including Prime Minister Benjamin Netanyahu, categorically ruling out a Palestinian state while describing the West Bank as part of a greater Israel.

The court has agreed – and come to the view that Israel has been running a permanent occupation in the West Bank. It has accepted that Israel has, in effect, annexed the West Bank.

Profound consequences

It should be stressed that the ICJ has issued nothing more powerful than a non-binding opinion that does not in itself place any obligation on Israel to withdraw from the West Bank.

But the consequences are profound. For decades successive Israeli governments have abused the technical legality of the occupation to expand the grip of the Israeli state, stealing land from Palestinians, and building illegal settlements for Israeli citizens.

To quote last February’s despairing submission to the court from Riyad al-Maliki, Palestinian foreign minister, Israel “from the first day of its occupation, started colonising and annexing the land with the aim of making its occupation irreversible. It left us with a collection of disconnected Bantustans.”

The ICJ’s verdict is important because it strips away the legal ambiguities and ingenious bureaucratic subterfuges that have enabled the Israeli occupation.

And it comes at the precise moment when, under the shadow of the Gaza war, Israel has in any case pushed forward with completing the de facto annexation of the West Bank, abandoning the pretence that the area is under temporary military occupation.

This policy received a resounding endorsement in the early hours of Thursday morning when Israel’s parliament, the Knesset, voted to reject outright a Palestinian state.

With 68 Knesset members voting in favour, and just nine against, the resolution enjoyed the support of Netanyahu’s Likud party as well as his far-right coalition allies, Bezalel Smotrich’s Religious Zionism party and Itamar Ben Gvir’s Jewish Power.

But it was also backed by Benny Gantz, leader of the supposedly centrist National Unity party and a man often characterised by western policymakers as a moderate influence within Israeli politics.

The significance of the Knesset vote is momentous.

Along with the trashing of the idea of the Palestinian state goes the so-called “two-state solution”, the hackneyed formula still beloved by many western politicians even as the reality on the ground has made it increasingly unviable.

One state

From now on there can be no argument that Israel has started on a path towards a goal that it has either obscured or denied for half a century since 1967: the one-state solution.

Of course, one imagining of such an outcome could be a one-state solution in the sense of a single country open to all its citizens with equal rights and freedoms for all.

But Israel’s current political leadership is not planning that. They want a Jewish ethnostate in which Palestinians are denied social and economic rights.

There’s a word for this: apartheid. Human rights organisations including Amnesty International, Human Rights Watch, Israel’s own B’Tselem and the West Bank-based Al-Haq have already applied that term to Israel.

But western leaders have refused to follow suit. It’s hard to see how they can avoid facing that reality in the light of the ICJ opinion and the Knesset vote.

In the case of South Africa, international condemnation led to sanctions and travel restrictions that left the country isolated, and eventually led to the release of Nelson Mandela and the end of the Apartheid system.

That is why this ICJ opinion poses a giant problem for western leaders who support Israel.

It leaves them open to questions about that support at a time when Israel’s parliament has rejected the existence of a Palestinian state on any terms, and the highest court in the world has accused it of the illegal annexation of the West Bank.

In London and Washington, in particular, it leaves governments vulnerable to further challenges over the legality and morality of continuing to supply weapons deployed with daily deadly effect against Palestinians in Gaza and the West Bank.

Through their actions, Israel’s government, and now its parliament, have openly demonstrated their own defiance of the rule-based international order.

But the ICJ’s opinion at least leaves western leaders with no remaining excuses to be in any doubt about that fact.