World court’s opinion on Israeli occupation hardly a surprise

One possible reason July’s advisory opinion by the UN’s top court, which stated that the Israeli occupation of Palestinian territories goes against international law, did not attract much international attention is that most observers felt this was no more than stating the very obvious.

However, as the Israeli occupation of the West Bank and East Jerusalem is currently entrenching at a faster pace, the prospect of an Israeli military presence in Gaza for years to come has become very real. And because some extreme elements at the heart of Israel’s government are advocating building settlements in the Gaza Strip, stating and amplifying the obvious is more important than ever. Adding to the significance of this advisory opinion is that it marked the first time that this court had delivered a position on the legality of the 57-year occupation, let alone it being crystal clear about its unlawfulness.

Although this advisory opinion by the International Court of Justice is not legally binding, it carries significant moral and political weight and, given the political resolve, could be translated into a binding resolution by the UN Security Council. The long and learned legal document could also serve as a guide for the behavior of individual countries, international organizations and businesses that clarifies how they should engage with the occupation, the settlements, the settlers and those who sustain them.

What links the political and legal aspects of this document is that it was the UN General Assembly that requested that the court give its view on Israel’s policies and practices toward the Occupied Territories and on the legal status of the occupation, including East Jerusalem. It is now for the UNGA and its member states to decide how they will translate this view of the court into a meaningful resolution and policies that will end the occupation and lead to an end of the Israeli-Palestinian conflict, based on the right of self-determination for both peoples and their living in peace and security side by side.

Israeli Prime Minister Benjamin Netanyahu’s response to the ruling reflected an utter disregard for international law

Yossi Mekelberg

Israeli Prime Minister Benjamin Netanyahu’s response to the ruling reflected an utter disregard for international law and deliberate obliviousness to the international isolation he is leading his country into. Beyond calling the court’s depiction of the occupation as illegal “absurd” and a “decision of lies,” he went on to say: “The Jewish people are not occupiers in their own land — not in our eternal capital Jerusalem, nor in our ancestral heritage of Judea and Samaria (the West Bank).” This is a denial of both the fact that these territories were acquired by military force and that, as per international humanitarian law, any occupation should be a temporary one, let alone that the Zionist movement accepted the partition of Mandatory Palestine, which facilitated the establishment of Israel and the international recognition it enjoys within its pre-June 1967 borders.

It is the behavior — or, more accurately, the misbehavior — of Israel in the West Bank, East Jerusalem and Gaza that has brought on this decision. Under international law, the occupying power should not change the conditions that led to its acquiring sovereignty over the occupied territory and it is obliged to respect the existing laws and institutions of the occupied territory within reason. This is all based on the assumption that an occupation is temporary, as it should be.

An argument is made by the right in Israel that the Occupied Territories were not under the control of the Palestinians when they were occupied in 1967 and hence there was a necessity to establish governing structures and mechanisms. As valid as this argument is, these structures and mechanisms should only have been employed for a limited time, until the transfer of political power to the local population to exercise their right to self-determination, and not as a tool to oppress them and perpetuate Israeli control over these territories.

Instead, for decades now, and especially during the Netanyahu years, Israeli efforts have been invested in burying the two-state solution by altering the facts on the ground that make a viable state with contiguous territory ever more difficult to accomplish.

Israel also challenged whether the International Court of Justice had any legal standing to consider this issue, but it was rebuked by the court, which unanimously expressed the view that it has the jurisdiction to give an advisory opinion on every matter requested by the UNGA. After all, this UN body presented to the court the most pertinent question of how the policies and practices of the occupation are changing the status of the occupation. The answers are crucial to the feasibility of reaching a future peace deal.

It is the behavior of Israel in the West Bank, East Jerusalem and Gaza that has brought on this decision

Yossi Mekelberg

The court also rejected the idea that it should refrain from addressing the legality of the occupation as that would likely interfere with the Israeli-Palestinian peace negotiations process as outlined by the Oslo Accords and subsequent agreements. This argument would have been humorous had it not been so sad.

Considering the current disheveled state of affairs between the Israelis and the Palestinians, it is hard to foresee how any decision by any court could further exacerbate the disagreements between the two and consequently compromise the outcome of (nonexistent) negotiations. If anyone is looking for an absurdist argument, they don’t come any better than this.

There are no peace negotiations in progress and under all Netanyahu governments — the current one in particular — the idea of a two-state solution has been totally rejected, including by a recent Knesset vote passed by a vast majority, which declared that the establishment of a Palestinian state in the Occupied Territories would pose a danger to Israel. The derivative from that is perpetuating an occupation that has now been ruled by the most senior international court as unlawful, as are all of its practices, not least the building of settlements, because they lead in only one direction: to the annexation of large parts of the Occupied Territories.

This advisory opinion of the world court could not have been any clearer in stating that the state of Israel is under an obligation to bring an end to its unlawful presence in the Occupied Territories as rapidly as possible. And if Israel wonders how this decision has come about, it should first and foremost reflect on year upon year of a harsh occupation that violates the basic rights of Palestinians and of Israel’s grabbing of land for building its settlements, weakening the peace movements in both societies and obstructing any peace initiatives. This should provide most of the answer.

• Yossi Mekelberg is a professor of international relations and an associate fellow of the MENA Program at Chatham House. X: @YMekelberg