Kenneth Roth
The Guardian / July 22, 2024
The court’s ruling is more than a legal setback for Israel. It is a virtual invitation for the ICC to prosecute the officials behind the settlements
The Israeli government has long stressed that there was no Palestine whose land it could occupy and that the territories are ‘disputed’. The court has rejected this
Friday’s international court of justice (ICJ) ruling was a wholesale repudiation of Israel’s legal justifications for its 57-year (and counting) occupation of Palestinian territory. But it is not a magic bullet. Political pressure will be needed to back it up. The first opportunity will come when Joe Biden meets the Israeli prime minister, Benjamin Netanyahu, in Washington on Tuesday.
As has been widely noted, the court’s ruling is only “advisory”, not binding, because it was requested by the UN general assembly rather than the product of a lawsuit between two states. Moreover, the Israeli government is already ignoring prior ICJ decisions. Israel has not moved the separation barrier, which the court held in a 2004 advisory opinion to be illegal because, under the guise of security, Israel has incorporated large swathes of Palestinian land on the Israeli side of the barrier. Nor has Israel discernibly mitigated its offensive in Gaza despite court orders in the case brought by South Africa requiring steps to protect Palestinian rights under the genocide convention.
Yet the ICJ has demolished Israel’s claim that the West Bank, East Jerusalem, and the Gaza Strip are not occupied, merely “disputed”. The Israeli government has long stressed that there was no “Palestine” whose land it could occupy because, until the six-day war of June 1967, the West Bank and East Jerusalem had been held by Jordan, which has since relinquished any claims to them, and the Gaza Strip was administered by Egypt, which certainly doesn’t want it back.
But the court held that for legal purposes, occupation is the product of a military takeover of land, regardless of its status. Even Gaza has long been occupied, the court found, despite Israel’s 2005 disengagement, because Israel maintained authority over various aspects of life in Gaza that could be exercised when it wished.
That occupation brings into force the fourth geneva convention of 1949 on military occupation, which Israel has ratified. Article 49 renders it illegal – a war crime – for an occupying power to transfer its population to occupied territory, as the court found that Israel has done with its settlements.
Did Palestinian leaders waive these rights with the Oslo accords, which recognized certain Israeli powers in the occupied territory as negotiations were supposed to proceed toward a Palestinian state? No, said the court, citing article 47 of the fourth Geneva convention, which says negotiations between occupier and occupied cannot deprive people of rights under the convention – a wise precaution given inherent power imbalances.
The court’s ruling is thus more than a legal setback for Israel. It is a virtual invitation for Karim Khan, chief prosecutor for the international criminal court (ICC), to prosecute the officials behind the settlements. He should start with the members of the current government who are authorizing their rapid expansion.
Benjamin Netanyahu rejected the court ruling as “absurd”, saying that Jews have a right to settle in their homeland. But that same land is also the homeland of Palestinians. The court noted the Palestinian people’s right to self-determination. While the key question for such matters is what the “self” is that gets to be determined, the court cited the UN security council and the UN general assembly on the integrity of all occupied Palestinian territory. In essence, while the Jewish homeland is now recognized as Israel within its borders as they existed until June 1967, the Palestinian homeland is the occupied territory.
The court’s ruling comes as the prime minister is about to meet Biden. Despite abandoning his candidacy for re-election, Biden has given no indication that he will change his extraordinary deference to the Netanyahu government’s war crimes in Gaza. But the ICJ decision should give him pause about his response to the occupation as a whole.
In the most sweeping portion of the ruling, the ICJ found that Israel’s entire occupation is illegal and should be reversed. The Biden administration said in response that the US government has long agreed that the settlements are illegal, but that the “breadth” of the court’s ruling will complicate efforts to resolve the conflict because it doesn’t take into account Israel’s security needs.
Yet most of what the court described – the settlements, the demolition of Palestinian housing, the theft of Palestinian resources – has nothing to do with security. Indeed, transferring Israeli settlers to the heart of Palestinian territory arguably makes Israelis less secure. One theory for why Israeli forces were so poorly prepared for Hamas’s 7 October attack is that they had been diverted to address the growing tensions under Netanyahu’s far-right government between Israeli settlers, with their mounting violence and land grabs, and the Palestinian population.
Perhaps most ominously for Israel, the court ordered all governments not to “render aid or assistance in maintaining” Israel’s presence in the occupied territory, given its illegality. That should apply foremost to the US government, the largest supplier to Israel by far of arms and military aid. The former Liberian president Charles Taylor is serving a 50-year prison term in a British prison for aiding and abetting war crimes by shipping arms to an abusive rebel group in neighboring Sierra Leone. No one is holding their breath awaiting ICC charges against US officials, but Biden should reconsider continuing to finance and arm the maintenance of the occupation precisely because charges would be legally justified.
Moreover, although the finding was hidden in legalese, the court ruled that Israel has imposed a regime of apartheid in the occupied Palestinian territory by virtue of its systematic discrimination against Palestinian residents. The A-word has been anathema in official Washington circles, despite detailed reports finding apartheid by Human Rights Watch and every other serious human rights organization to have addressed the issue.
That should give Biden ammunition to overcome Netanyahu’s opposition to a Palestinian state. If not a Palestinian state, then what? Some now talk about equal rights for all within the existing “one-state reality” between the Jordan River and the Mediterranean Sea, but that is undoubtedly the last thing Netanyahu wants. Some of the far-right members of his government dream of forcibly deporting Palestinians, but that would be a sure route to ICC charges and global opprobrium that even the US establishment finds difficult to resist.
The ICJ now says the third option – Netanyahu’s preferred option – of endlessly kicking the can down the road with occasional talk of a moribund peace process to camouflage the ugly status quo is in fact apartheid. Not that I think he would ever have the courage to do so, but it is nice to imagine Biden saying that the United States, with its own long history of racial injustice, will no longer support Israel in maintaining an apartheid regime in the occupied Palestinian territory. The occupation must end.
Kenneth Roth, former executive director of Human Rights Watch (1993-2022), is a visiting professor at Princeton’s School of Public and International Affairs
