Ghousoon Bisharat
+972 Magazine / July 23, 2024
Palestinian lawyer Diana Buttu unpacks the ICJ opinion on Israel’s military regime, and the lessons of turning international law into action.
On Friday, July 19, the International Court of Justice (ICJ) ruled that Israel’s occupation of the Gaza Strip and the West Bank, including East Jerusalem, is unlawful and must cease “as rapidly as possible.” The court stated that Israel is obliged to immediately refrain from all new settlement activity; evacuate all settlers from the occupied territories; and pay reparations to Palestinian for the damage caused by Israel’s 57-year military regime. It also affirmed that some of Israel’s policies in the occupied territories amount to the crime of apartheid.
The ruling — known as an advisory opinion — stems from a 2022 request by the UN General Assembly, and is non-binding. But it marks the first time that the world’s top court has expressed its view on the legality of Israel’s control over the occupied territories, and constitutes a sharp repudiation of Israel’s long-held legal defenses.
Palestinian Authority President Mahmoud Abbas welcomed the ruling, describing it as “a triumph for justice” and calling on the UN General Assembly and Security Council to explore additional measures to put an end to the occupation. Israeli Prime Minister Benjamin Netanyahu dismissed it as “absurd,” saying: “The Jewish people are not occupiers in their own land, including in our eternal capital Jerusalem nor in Judea and Samaria [the West Bank], our historical homeland.” The United States responded by affirming only that Israel’s settlements are illegal, and criticized “the breadth of the court’s opinion,” which, it said, “will complicate efforts to resolve the conflict.”
To understand more about the significance and scope of the ruling, +972 Magazine spoke to Diana Buttu, a Palestinian lawyer based in Haifa who served as legal advisor to the PLO from 2000 to 2005. During that time, she was part of the team that brought a case to the ICJ concerning Israel’s separation wall, whose route the court declared — in another non-binding advisory opinion — to be unlawful. The interview has been edited for length and clarity.
How did you feel as you watched ICJ President Nawaf Salam read out the court’s opinion?
On the one hand, I was very happy because it confirms everything that I and so many other legal scholars and activists have been saying for decades. But on the other hand, I kept asking myself: Why did we have to actually go to the ICJ? Why do people listen to a legal opinion, but not to our lived experience? Why did it take so long to see that what Israel is doing is wrong?
How significant is this ruling for Palestinians?
It’s important to put the ruling in its proper context, as an advisory opinion. There are two ways you can go to the ICJ. The first is when there’s a dispute between two states, and that’s what you’ve seen with South Africa versus Israel [on the question of genocide in Gaza], and those decisions are binding. The second is when the UN General Assembly asks for clarification or a legal opinion on a matter; that’s an advisory opinion, and those are non-binding.
So when you look at the overall picture, one must remember that using the courts and using law is just one tool, not the only or final tool. That doesn’t mean it isn’t important, or that a non-binding opinion isn’t law. The bigger issue is how it’s going to impact future behavior.
Here it’s important to remember what happened with the first ICJ decision [on Israel’s separation wall], which was issued on July 9, 2004. Even though it was an advisory opinion, it did set law, and more importantly, it was because of this decision that we saw the growth of the Boycott, Divestment, and Sanctions (BDS) movement — in fact, the movement was launched internationally exactly one year afterward.
So people should understand that there’s never going to be a legal knockout. The occupation is not going to end through courts and legal mechanisms — it’s going to end when Israel pays the price. And whether that price is paid externally because the world says enough, or internally because the system starts to implode, it’s going to be an Israeli decision to end the occupation.
The ICJ’s 2004 advisory opinion was a landmark decision, but it did little to counter the construction of the separation wall or change its route. Do you think the new opinion carries any different weight compared to the past, or could generate different political actions?
Yes. The 2004 decision was important for a few reasons. First, not only did it say that the wall is illegal, but it also talked about the obligations of third-party states to uphold international humanitarian law and not contribute to the damage. Now, you’re right, the wall continued to stand and the non-binding decision did not stop the construction, because there was no enforcement of it. It did, however, change the ways in which diplomats and others related to the wall.
We must also remember that this new advisory opinion is much bigger and broader. The court tears to shreds the idea of peace negotiations, of the Oslo Accords, of Palestinians accepting permanent occupation. And while governments may continue to hold onto their position that negotiations are the only way forward, in every capital around the world, there is now going to be a legal memo that says the International Court of Justice has ruled [that negotiations cannot deprive the occupied population of rights under the Geneva Convention].
One other important thing is that Jewish settlements in the West Bank have become normalized, and here we have a decision that undercuts that, saying that the settlements and the settlers have to go. Based on those things, I do expect to start seeing a shift in policy. It might not happen immediately, but it will shift the mindset of the ways people will relate to the occupation.
What kind of a change in policy or mindset do you expect from the international community?
I can give one example from Canada, where I was born. Canada’s submission [for the ICJ’s proceedings on the case] was very typical, affirming that the ICJ has jurisdiction over this important issue, but then going on to say that the best way to resolve it is by negotiations. But that’s the equivalent of saying, and forgive the analogy, that a person who is being beaten up just needs to negotiate with their abuser. Now the court has dispensed with that, and has clearly established that there is an occupier and occupied. So now I expect — and I’m actually going to start demanding — that the Canadian government change its position.
Another example where I expect to see change is the issue of settlers. When you look at the number of settlers living in occupied territory today, the conservative estimate is 700,000. In relation to the 4 million people in the entire territory [of the West Bank, including East Jerusalem], that’s a very high percentage. And that’s important because it shows that so many Israeli settlers have internalized and normalized the occupation.
The question is whether the Jewish settlers are going to view themselves as people living illegally on Palestinian land — and I suspect it’s going to be a no. But what I want to see is that action and that perception no longer being normalized, and a recognition that the occupation has done harm that needs to come to an end. Israel has done a good job at normalizing the settlements, and there is no Green Line anymore — Netanyahu’s statement yesterday [against the ICJ ruling] is proof of this. But that has to change.
I think we’re at the same moment as we were in the 1980s with apartheid South Africa. Back then, advocates for apartheid would tell anti-apartheid activists that they simply didn’t understand the situation. Apartheid had become so normalized. Ten years later, it wasn’t. And here we are 30 years after that, and I have a hard time finding one person who says apartheid was a good thing.
Was there anything in the advisory opinion that you were surprised by?
I wasn’t surprised by many things, but I was pleased that certain elements were there. One of those things was the focus on Gaza, because since 2005, Israel has adopted this narrative of “disengagement,” claiming that there is no occupation there. Many human rights organizations have been fighting to say that Gaza is actually occupied — that there is effective Israeli control, and that Israel’s responsibilities are linked to the level of that control. I was happy to see that the court confirmed that and put this argument to rest, especially because there has not been, to my knowledge, any UN Security Council resolutions on this matter.
The second thing I was very pleased to see was that the court said reparations have to be paid, and not just in the form of all the settlements being taken down, but the settlers leaving too. And the third thing was the idea of refugees being allowed to return [to the homes from which they fled or were expelled in 1967]. This is an acknowledgement of the harm that 57 years of military occupation has done.
I was kind of surprised to see the Australian judge [Hilary Charlesworth] come out and very clearly say that Israel cannot claim self-defense to maintain a military occupation, or in relation to acts of resistance against the occupation; I have argued this for a long time and it is good to see a judge make the same remarks. And while by and large agreeing with the court’s opinion, the new American judge, Sarah Cleveland, had a very interesting separate opinion: she argued that the ruling should have given more attention to Israel’s responsibilities under the law of occupation specifically to Gaza, both before October 7 and now.
Israeli politicians, both in the government and the opposition, rejected the ICJ opinion, smearing it as antisemitic and biased. Do you think these reactions disguise any genuine concerns or fears?
Yes, the fear is that they’re being outed for the racists that they are, and that they may actually need to end the occupation. There might also be some action worldwide [putting pressure on Israel]. They are also concerned because they’re the ones who put the settlers there in the first place, and there might be demands on the part of the settlers to be compensated for leaving.
Netanyahu has never recognized Palestine’s right to exist. We saw just the other day the Knesset vote against the establishment of a Palestinian state. And it wasn’t just the Likudniks, or [Itamar] Ben-Gvirs, or [Bezalel] Smotrichs who signed on to it, but other lawmakers as well, including [Benny] Gantz. They’ve never recognized what they did in 1948 or the harm they’re perpetrating today. Instead, they are guided by this concept of Jewish supremacy — that only they have a right to this land.
Israel has always sold the occupation as somehow being legal, and their actions as somehow being just and right, with these stupid claims of a “moral army.” There’s no moral army in the world — how do you morally kill people? They make these claims that you can go to the Israeli High Court, and every Palestinian knows there’s no justice to be achieved from a court that’s been set up as an arm of the occupation. Now, when they have a court looking from the outside and saying what they’re doing is illegal, it’s of course terrifying to them.
Apartheid South Africa behaved the same way when it had to deal with the ICJ’s opinions. At the end of each ICJ opinion, the apartheid government used to give the same line: that only South Africa can stand in judgment of South Africa, meaning that only a racist system can judge whether the system is racist. That’s what Israel is saying: only us, the racist system, can determine whether it’s racist. But then you step out and see the international rules confirm that the system is racist and needs to be dismantled. That’s scary for Israel.
A few Israeli international law experts are downplaying the significance of the ICJ’s opinion by emphasizing that it is non-binding, and arguing that the court didn’t say the occupation is illegal, only that it is illegal for Israel to disobey the rules of occupation. How do you view these claims?
They’re right, but to downplay it is also a fool’s errand. According to international law, you can have a legal occupation, but only as a temporary state for a short period of time in order to restore law and order and get rid of threats. The problem with the Israeli occupation is not just the length of time, but the fact that it was never intended to be temporary. Since 1967, Israel has said they are never going to give up the West Bank. They denied that Palestinians have a right to this land, and almost immediately began settlement construction and expansion. The length and practices are what makes Israel’s occupation illegal.
These same Israeli legal scholars don’t recognize what harm means. Maintaining an occupation requires violence. Taking land, putting up checkpoints, building settlements, running a military court system and permit regime, abducting kids in the middle of the night, demolishing homes and stealing water: everything that this occupation entails is violent. So Israeli experts can try to downplay the ruling as much as they want, but they’d be well advised, instead of coming up with ways to make the occupation look prettier, to finally put an end to it.
You say that Israel’s actions were illegal from day one of the 1967 occupation. Do you see this current government, or the last 15 years of Netanyahu’s rule, as more dangerous than what came before? Or is it basically continuing the same policies toward the Palestinians and the occupied territories that we’ve seen for more than half a century?
It’s the same and it’s different. It’s the same because there hasn’t been one Israeli government since 1967 that has stopped settlement expansion. You can look at any other issue in Israel, and governments have differing policies, but this unites them. So it doesn’t matter if it was Labor, Likud, or Kadima; Netanyahu is no different in that respect.
The only thing that is new is that this government is so brazen about its position. While in the past you may have had people who would talk about a two-state solution, Netanyahu has been very clear throughout his premiership that there will never be a Palestinian state, and that Palestinians have no rights.
You have long been critical of the Palestinian Authority for its failures. How do you see them handling this ruling and the other recent procedures at the ICJ and ICC, both in the diplomatic arena and on the ground?
One of the big problems in 2004 was that we didn’t have a Palestinian leadership that was pushing for the implementation of the ICJ decision [on the separation wall]. They were still in what they thought was the heyday of negotiations, still living in a fantasy world. And that’s why the BDS movement ended up coming out and pushing.
This time around I’m really worried, because if there’s one thing that you can take away from this decision, it is [a critique of] all these so-called “generous [Israeli] offers” that Palestinians have had to suffer under. The ICJ makes it clear that [the occupied Palestinian territories] are not Israeli territory for them to be generous with. Not only that, the opinion of the ICJ is an indictment against Oslo: it says that it doesn’t matter what was signed, Palestine still has a right to self-determination and no agreement can supersede that right.
My fear is that Abu Mazen [President Mahmoud Abbas] knows only one concept, and that is negotiations. I’m afraid that we’re going to see enough U.S. and Western European pressure for him to say, this is all very well and good, but we believe that negotiations are the only way forward.
And if you were to advise the PA, how would you suggest they move forward?
The PA should be going from capital to capital to get backing for the idea that settlements are illegal, and that the settlers have to go. I wouldn’t be entertaining ideas of land swaps, which is what they did in the past. I wouldn’t be entertaining the idea of negotiations now; they are not bad as a tool, but the negotiations have to be about something. If they were to, for example, have negotiations on pesticides, or the economy, or movement of people, that’s all fine. But to have negotiations over your rights is something very repugnant, and I can’t believe there are people still thinking in these terms in the year 2024.
So I would advise them to push for everything possible to be done to make sure that the settlements and settlers are removed — which should not be up for negotiations — and Israel begins to pay a price. I understand that the Palestinian president is under military occupation, and that the economy is under Israel’s control. But there has to be a breaking of that dependency.
How can the Palestinian leadership use this ICJ decision to push harder on ending the war on Gaza?
I don’t think this current leadership is capable of doing anything for Gaza. It’s very sad for me to say, but I get the feeling that many of them don’t care about Gaza.
And if we’re speaking about the Palestinian leadership as a whole, not only the PA?
First, we have to have a Palestinian leadership that emerges through elections. My fear now for Gaza is that there’s all this [international] talk of the “who” [who will take over], and there’s no real talk of “what.” People are pointing saying this or that person would be good, then it somehow ends up consolidating around Abu Mazen, as though there are no other people in Palestine capable of being a leader.
No person is going to want to come in and be the head of the Palestinian Authority [as it is now]. There’s a reason there’s not been a coup in Ramallah since Abu Mazen took over: it’s a thankless, stupid job where you are effectively the security subcontractor for Israel.
What needs to come out is a credible elected leadership with an overall strategy and vision for all Palestinians, but especially right now for Gaza. And for me, it centers on the idea of holding Israel accountable for everything that it’s done, particularly since October 7. It’s disheartening to hear over and over again [from international commentators and politicians] that nothing justifies [the Hamas attack of] October 7 and yet everything that Israel does in Gaza is justified by October 7. We need to start poking holes in that ideology and hold Israel accountable — then you can start rebuilding Gaza.
I hope that a new, united, and elected Palestinian leadership would step back, assess Oslo and the mistakes that were made, and assess this moment to move forward. I don’t think the current leadership is capable of having that internal reflection.
The PLO always had this obsession with Palestinian decision-making being in the hands of Palestinians, and the PA today is holding to this same obsession. But if the PA doesn’t handle this moment right, and I suspect they won’t, we’re going to see many more activists, the BDS movement, and others internationally pick up the torch.
The ruling is focused on the Palestinian territories occupied by Israel since 1967. Some would say that this scope is very narrow, ignoring crimes and violations going back to 1948, or that it may force the Palestinians into accepting a future only on these 1967 lines. How do you grapple with the limitations of this ruling for the Palestinian cause?
This was the critique of the ICJ question in the first place, and I share this critique: that by focusing just on ‘67, you’re giving Israel a pass. The only way to understand the occupation is if you understand what Israel did during the Nakba and during the era of military rule [inside Israel], which Palestinian citizens lived under for 19 years until ‘66. The idea that you can separate the two [1948 and 1967] is a fiction.
For the PA, there are two main reasons to focus on 1967: one is that they see the occupation as the immediate harm that must be undone, and two is that I think they gave up on 1948 decades ago — not just with the signing of Oslo, but even before that, with the PLO’s Declaration of Independence in 1988.
For the PA, there’s a limiting political backdrop as well. In many ways they have given up on reparations for the Nakba, which effectively means that they’re giving up on the right of return. They may say they’re supportive of it, but I just don’t see it.
There’s a way where you can talk about ‘48, and still have this idea of a political compromise. That has been the Palestinian position for many years, but over the last 20 years, that has not been the PA’s position. When I step back and look at where they stand, I think there’s very much a political conviction that we’re just going to give up on ‘48 — not only the territory but also the narrative — in order to try to preserve what’s left of ‘67.
Palestinians have lost faith in international law over the years for its failure to protect them. Do you think the recent moves at the ICJ and the ICC give Palestinians a new reason to rekindle that faith?
I understand why there’s anger with the legal system, because law is oftentimes a reflection of power. But it can also be used as a tool. Israel has been very clever in the way it has carried out its occupation — not just on the ground, but in the way they’ve sold the occupation and blocked opposition to it, particularly in the United States, Canada, Australia, and other countries in the West.
Now, this ICJ opinion opens new arenas [for accountability]: to make sure that Israel doesn’t get to use free trade agreements, that French citizens don’t get social security if they’re living in an illegal Israeli settlement, and that settlers are sanctioned financially and not allowed to travel to certain places around the world. But that all requires a lot of work.
Ghousoon Bisharat is the editor-in-chief of +972 Magazine
