Yesterday, the Israeli Knesset declared that the creation of a Palestinian states would “pose an existential danger to the State of Israel.” The vote was 68 to 9 out of a possible 120 votes, and the fact that 43 members did not votes is intriguing, and perhaps, telling. The vote was held just as Prime Minister Netanyahu is scheduled to deliver an address to the US Congress next Wednesday, 24 July. Since US President Biden has repeatedly held that the creastion of a Palestinian state is necessary for peace between the Israelis and the Palestinians, the vote was intended to undermine the US position. To further indicate the growing distance between the US and the Netanyahu government, the Israeli national security ministar, Itamar Ben-Gvir, prayed at the al-Aqsa mosque compound, stating that he had prayed for the Israeli government to not sign a cease-fire agreement over Gaza.
Today, however, the International COurt of Justice relieased its findings in a Advisory Position which was requested by the UN General Assembly in 2022. The decision, “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem“, forcefully reiterated previous legal findings that the Israeli occupation of the Gaza Strip, the Golan Heights, and the West Bank, territories seized by Israel in the war of 1967, violated both the Geneva and Hague Conventions on occupied territories:
“Conclusion on Israel’s settlement policy
155. In light of the above, the Court reaffirms that the Israeli settlements in the West Bank and East Jerusalem, and the régime associated with them, have been established and are being maintained in violation of international law (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 184, para. 120).
“156. The Court notes with grave concern reports that Israel’s settlement policy has been expanding since the Court’s Wall Advisory Opinion. In particular, in December 2022 Israel’s parliament approved the establishment of an additional minister within the Ministry of Defence vested with governing powers in the West Bank, including land designations, planning and co-ordination of demolitions, which would expedite the approval process for new settlements. Also, the size of existing Israeli settlements expanded from 1 November 2022 to 31 October 2023 at a significant rate, with approximately 24,300 housing units within existing Israeli settlements in the West Bank being advanced or approved, including approximately 9,670 in East Jerusalem (“Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan: Report of the United Nations High Commissioner for Human Rights”, UN doc. A/HRC/55/72 (1 February 2024), paras. 7 and 10).” (p. 47)
The International Court of Justice does not equivocate on the application of relevant international law. The Economist summarizes the finding:
“On July 19th the International Court of Justice (icj) rejected all of Israel’s legal claims in response to a request for a legal opinion by the United Nations General Assembly. In a series of coruscating majority rulings, it said that Israel’s prolonged presence can no longer be considered a temporary military occupation, but amounts to illegal annexation that undermines the rights of the Palestinians living there to self-determination. It said the occupation, ‘transfer by Israeli of settlers to the West Bank and Jerusalem’ and ‘forced displacement’ of Palestinians are clear breaches of international law. The bottom line, according to the judges, is that ‘Israel’s continued presence in the Occupied Palestinian Territory is unlawful’ and that the Jewish state is ‘under an obligation to cease immediately all new settlement activities’ and evacuate the settlers already there.
“’Successive Israeli governments have treated the settlements, as well as Israeli control over the area, as an immovable fact on the ground and not even made a pretence of negotiating with the Palestinians,’ says Eliav Lieblich, a professor of international law at Tel Aviv University. ‘This [ruling] was inevitable.’”
The decision is not enforceable. The International Court of Justice can only refer matters to the UN Security Council, and this is only an Advisory Decision. But there are members of the Security Council who would not be willing to even entertain an enforcement resolution. Nonetheless, the decision further isolates Israel and its allies from the vast majority of the states in the United Nations. Currently, 145 of the 193 member states in the UN recognize an independent Palestinian state.
What is most inrtiguing about the decision is that the preferred position of the US on the Israeli-Palestdinian question is that the only possible resolution lies in the creation of an independent Palestine. But the US insists that such an outcome needs to be negotiated and not imposed. The Israeli occupation has lasted for 57 years, and there have been numerous negotiations over those years which have had no discernable effect toward any effective resolution. There is no reason to believe that further negotiations will yield different outcomes. Israeli Prime Minister Netanyahu released this statement after the Court’s decision: “The Jewish people are not occupiers in their own land, including in our eternal capital Jerusalem nor in Judea and Samaria, our historical homeland. No absurd opinion in The Hague can deny this historical truth or the legal right of Israelis to live in their own communities in our ancestral home.”
The time has long past for the US to indulge the fantasy of negotiations. The International Court of Justice has created an opportunity for the US to change its position.
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