Jonathan Cook
Middle East Eye / July 23, 2024
The legal ruling by the world’s highest court obliges western states not just to end their persecution of the boycott movement but to take up that cause as their own.
Don’t be fooled. The ruling by the International Court of Justice (ICJ) on 19 July that Israel’s occupation of Palestine is unlawful is earth-shattering. Israel is a rogue state, according to the world’s highest court.
For that reason, the judgment will be studiously ignored by the cabal of western states and their medias that for decades have so successfully run cover for Israel.
Doubters need only watch the reception Israeli Prime Minister Benjamin Netanyahu receives during his visit to the United States this week.
Even though he is currently being pursued for war crimes by the chief prosecutor of the International Criminal Court, the US Congress will give him a hero’s welcome when he addresses its representatives on Wednesday.
The warm handshakes and standing ovations will be a reminder that Netanyahu has had the full backing of western powers throughout the nine-month slaughter of at least 16,000 Palestinian children in Gaza – with another 21,000 missing, most of them under rubble.
The welcome will be a reminder that western capitals are fully on board with Israel’s levelling of Gaza and the starvation of its population – in what the same court concluded way back in January amounted to a “plausible genocide”.
And it will serve as a heavy slap in the face to those like the World Court committed to international law – reminding them that the West and its most favoured client state believe they are untouchable.
Western politicians and columnists will keep emphasizing that the World Court is offering nothing more than an “advisory opinion” and one that is “non-binding”.
What they won’t point out is that this opinion is the collective view of the world’s most eminent judges on international law, the people best positioned to rule on the occupation’s legality.
And it is non-binding only because the western powers who control our international bodies plan to do nothing to implement a decision that doesn’t suit them.
Nonetheless, the ruling will have dramatic consequences for Israel, and its western patrons, even if those consequences will take months, years or even decades to play out.
‘Top secret’ warning
Last week’s judgment is separate from the case accepted in January by the ICJ that put Israel on trial for genocide in Gaza. A decision on that matter may still be many months away.
This ruling was in response to a request from the United Nations General Assembly in December 2022 for advice on the legality of Israel’s 57-year occupation.
That may sound more mundane a deliberation than the one on genocide, but the implications ultimately are likely to be every bit as profound.
Those not familiar with international law may underestimate the importance of the World Court’s 19 July ruling if only because they had already assumed the occupation was illegal.
But that is not how international law works. A belligerent occupation is permitted so long as it satisfies two conditions.
First, it must be strictly military, designed to protect the security of the occupying state and safeguard the rights of the occupied people.
And second, it must be a temporary measure – while negotiations are conducted to restore civilian rule and allow the occupied people self-determination.
Astonishingly, it has taken 57 years for the world’s highest court to deliver a conclusion that should have been staring it – and everyone else – in the face all that time.
The military nature of the occupation was subverted almost from the moment Israel occupied the Palestinian territories in June 1967.
Within months, Israel had chosen to transfer Jewish civilians – mostly extreme religious nationalists – into the occupied Palestinian territories to help colonize them.
Israel knew that this was a gross violation of international law because its own legal adviser warned it of as much in a “top secret” memo unearthed by the Israeli journalist Gershom Gorenberg some two decades ago.
In a declaration enlarging on the ICJ’s reasoning, Court President Nawaf Salam specifically referenced the warnings of Theodor Meron, who was the Israeli foreign ministry’s legal expert at the time.
In September 1967, his memo cautioned that any decision to establish civilian Jewish settlements in the occupied Palestinian territories “contravenes explicit provisions of the Fourth Geneva Convention”. Those provisions, he added, were “aimed at preventing colonization”.
Nine days later, the Israeli government rode roughshod over Meron’s memo and assisted a group of young Israelis in setting up the first settlement at Kfar Etzion.
Sham peace-making
Today, hundreds of illegal settlements – many of them home to what amount to armed militias – control more than half of the West Bank and much of East Jerusalem.
Rather than protecting the rights of Palestinians under occupation, as international law demands, the Israeli military assists Jewish settlers in terrorizing the Palestinians. The aim is to drive them off their land.
In the words of the Israeli government, the settlements are there to “Judaize” Palestinian territory. In the words of everyone else, they are there to ethnically cleanse the Palestinian population.
Which brings us to Israel’s second violation of the laws of occupation. In transferring hundreds of thousands of settlers into the occupied territories, Israel intentionally blocked any chance of a Palestinian state emerging.
The settlements weren’t makeshift encampments. Some soon developed into small cities, such as Ariel and Ma’ale Adumim, with shopping malls, parks, public pools, synagogues, factories, libraries, schools and colleges.
There was nothing “temporary” about them. They were there to incrementally annex Palestinian territory under cover of an occupation that Washington and its European allies conspired to pretend was temporary.
The whole Oslo process initiated in the early 1990s was a switch-and-bait exercise, or a “Palestinian Versailles”, as the Palestinian scholar Edward Said warned at the time.
Israel was never serious about allowing the Palestinians meaningful statehood – a fact the then-Israeli prime minister, Yitzhak Rabin, admitted shortly before he was killed by a far-right settler in 1995.
Oslo’s sham peace-making was designed to buy more time for Israel to expand the settlements – while also binding the Palestinians into endless contractual obligations that were never reciprocated by Israel.
In his incensed response to the court’s decision last week, Netanyahu gave the game away. He said: “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.”
His is a bipartisan view in Israel. All the Jewish parties in the Israeli parliament take the same position.
Last week they voted to reject any possibility of creating a Palestinian state on the grounds it would be an “existential threat” to Israel. Only a handful of legislators – all belonging to Israel’s Palestinian minority – dissented.
Apartheid rule
The World Court’s ruling is most significant in that it permanently blows apart western states’ cover story about Israel.
The judges point out that Israel’s permanent occupation of the territories, and its transfer of settlers into them, has necessitated the development of two separate and distinct systems of laws.
One is for the settlers, enshrining for them the rights enjoyed by Israelis. Palestinians, by contrast, must submit to the whims of an alien and belligerent military regime.
There is a word for such an arrangement: apartheid.
Over the past decade, a consensus had already emerged in the world’s human rights community – from Amnesty International to Human Rights Watch – that Israel was an apartheid state.
Now the world’s highest judicial body has declared that it agrees.
Apartheid is a crime against humanity. This means that Israeli officials are war criminals, quite aside from the crimes they are currently committing in Gaza.
That was why the Israeli media reported panic inside the Israeli government at the ICJ ruling.
Officials fear that it will leave the International Criminal Court, its sister court, with no option but to issue arrest warrants against Netanyahu and his defence minister, Yoav Gallant, as already requested by its chief prosecutor.
It is also likely to strengthen the ICC’s resolve to prosecute more senior Israeli officials for crimes associated with Israel’s settlement program.
A former Israeli foreign ministry official told the Haaretz newspaper that the World Court ruling had punctured Israel’s claim to be a western-style state: “The democratic aura is no longer protecting us as it did before.”
Acts of aggression
The ICJ has concluded that Israel’s apartheid rule over Palestinians – as well as the ethnic cleansing policies implemented by its settler militias – are acts of aggression.
The West’s depiction of a “conflict” between Israel and the Palestinians, with efforts to resolve this “dispute”, is willfully muddled. Its depiction of Israel’s rampage in Gaza as a “war against Hamas” is a lie too, according to this ruling.
The ICJ has effectively ridiculed the claim by Israel and its western allies that the occupation of Gaza ended when Israel pulled its soldiers to the perimeter fence and soon afterwards instituted a siege on the enclave by land, sea and air.
Israel is judged to be fully responsible for the suffering of Palestinians before 7 October as well as after.
It is Israel that has been permanently attacking the Palestinians – through its illegal occupation, its apartheid rule, its siege of Gaza, and its incremental annexation of territory that should comprise a Palestinian state.
Palestinian violence is a response, not the inciting cause. It is the Palestinians who are the ones retaliating, the ones resisting, according to the judgment. The western political and media establishments have cause and effect back to front.
There are further consequences to the ICJ’s ruling. You don’t compromise on apartheid. No one suggested meeting apartheid South Africa halfway.
The racist foundations of such a state must be eradicated. Apartheid states must be reconstituted from scratch.
The World Court demands that Israel not only pull its occupation forces out of the Palestinian territories and halt its settlement expansion but also dismantle the settlements in their entirety. The settlers must leave Palestine.
The judges call too for “reparations” for the Palestinians for the enormous harm done to them by decades of occupation and apartheid.
That includes allowing those Palestinians who have been ethnically cleansed since 1967 a right to return to their lands, and it requires Israel to pay large-scale financial compensation for the decades-long theft of key resources.
Complicit in war crimes
But the implications don’t just apply to Israel.
In referring the case to the ICJ, the UN General Assembly requested the court advise on how its 192 member states should respond to its findings.
If Israeli leaders are war criminals, then supporting them – as western capitals have been doing for decades – makes those states complicit in Israel’s crimes against humanity.
For western powers, the ruling makes their continuing arms sales, diplomatic cover and the preferential trade status they give Israel collusion in the crime of prolonged occupation and apartheid.
But there’s more. It also means that western states must not only stop harassing, and even jailing, those who seek to penalize Israel for its crimes – supporters of the Boycott, Divestment and Sanctions (BDS) movement – but should take up that very cause as their own.
They are now under an implied legal obligation to join in such actions by imposing sanctions on Israel for being a rogue state.
Already, Britain’s weaselly new Labour government has tried to shift attention away from the ruling and onto discursive terrain that better suits Israel.
It responded with a statement that “the UK is strongly opposed to the expansion of illegal settlements and rising settler violence”.
But as former British ambassador Craig Murray noted, that was not what the ICJ decided. “It is not the expansion of Israel’s illegal settlements that is at issue. It is their existence,” he wrote.
Similarly, the Biden administration bemoaned the court’s ruling. In an act of spectacular mental gymnastics, it argued that ending the occupation would “complicate efforts to resolve the conflict”.
But as noted previously, according to the ICJ’s judgment, there is no “conflict” except in the self-serving imaginations of Israel and its patrons. There are occupation and apartheid – permanent acts of aggression by Israel towards the Palestinian people.
Further, the US warned other states not to take “unilateral actions” against Israel, as the ICJ ruling obliges them to do. Washington claims such actions will “deepen divisions”. But a division – between the upholders of international law and lawbreakers such as Israel and Washington – is precisely what is needed.
The World Court’s ruling upends decades of linguistic slippage by the West whose goal has been to move the ideological dial in favour of Israel’s incremental annexationist agenda.
It is vitally important that activists, legal and human rights groups keep holding the feet of the British and US governments to the ICJ’s fire.
The fog clears
Israel’s supporters will take comfort from the fact that an earlier judgment from the World Court on Israel was roundly ignored by both Israel and its western patrons.
Asked for an advisory opinion, the judges ruled in 2004 that, under cover of security claims, Israel was illegally annexing swaths of territory by building its 800km-long “separation wall” on Palestinian land.
Israel did not dismantle the wall, though in response it did re-route parts of it and abandoned construction in other areas.
But that two-decade-old ICJ ruling was much narrower than the present one. It was restricted to a specific Israeli policy rather than address the entirety of Israel’s rule over Palestinians. It did not impugn Israel’s political character, identifying it as an apartheid state. And there were few obvious implications in the ruling for Israel’s western patrons.
And perhaps most importantly, Israeli officials were in no danger 20 years ago of being put in the dock by the International Criminal Court charged with war crimes, as they are now.
The World Court decision tightens the legal noose around Israel’s neck, and makes it hard for the ICC to continue dragging its feet on issuing arrest warrants for Israeli officials.
And that will put multinational corporations, banks and pension funds in an ever harder legal position if they continue to ignore their own complicity with Israel’s criminality.
They may quickly find themselves paying a price with their customers too.
Adidas could be one of the first victims of just such a backlash after it caved into Israeli pressure on 19 July to drop the Palestinian-American model Bella Hadid as the face of a new ad campaign – paradoxically, on the same day the World Court announced its ruling.
There will also be ramifications for domestic courts in the West. It will be hard for judges to ignore the World Court’s opinion when their governments seek to punish Palestinian solidarity activists.
Those promoting boycotts and sanctions on Israel, or trying to stop companies supplying Israel with weapons, are doing what, according to the World Court, western governments should be doing of their own accord.
But, maybe most importantly of all, the ruling will decisively disrupt the West’s intentionally deceitful discourse about Israel.
This ruling strips away the entire basis of the language western powers have been using about Israel. A reality that’s been turned upside down for decades by the West has been put firmly back on its feet by the World Court.
The occupation – not just the settlements – is illegal.
Israel is legally defined as an apartheid state, as South Africa was before it, and one engaged in a project of annexation and ethnic cleansing.
The Palestinians are the victims, not Israel. It’s their security that needs protecting, not Israel’s. They are the ones who are owed financial assistance, in the form of reparations, not Israel.
As a result, the West’s pretend peace-making stands starkly revealed for the sham it always was. Continuing with this kind of duplicity – as British leader Keir Starmer, for example, appears determined to do – will serve only to highlight the bad faith of those engaged in such exercises.
On the flip side, western powers that help Israel continue its work of segregating, dispossessing and ethnic cleansing the Palestinians will be exposed as complicit in Israel’s crimes against humanity.
Words have power. They are our route to understanding reality. And the World Court has just cleared away the fog. It has wiped clean the mist on the window.
The West will do its level best once again to shroud Israel’s crimes. But the World Court has done the Palestinians and the rest of mankind a service in unmasking Israel for what it is: a rogue, criminal state.
Jonathan Cook is the author of three books on the Israeli-Palestinian conflict, and a winner of the Martha Gellhorn Special Prize for Journalism
