ICJ, Knesset and the rules-based order

Two significant developments within the space of less than 24 hours have brought much-needed clarity on the vexed issue of Israel’s ongoing occupation of Palestinian territories.

Advertisement

A reality check is round the corner when Netanyahu will address a joint session of the US Congress on July 27.

In response to a request from the UN General Assembly for an advisory opinion on the subject, the 15-judge Bench of the International Court of Justice (ICJ) in The Hague began deliberations in January 2023. As many as 57 countries submitted their opinions on the case, which is distinct from the one on South Africa’s submission that Israel is committing genocide in the Gaza Strip.

Treating the West Bank, East Jerusalem and the Gaza Strip as a contiguous territory, the court provided a stunning, unequivocal opinion on Friday (July 19). It ruled that Israel’s presence in the Occupied Palestinian Territories is illegal; that Israel must end its unlawful presence as rapidly as possible; that it must cease immediately all new settlement activities and evacuate all settlers; that Israel has the obligation to make reparations for the damage caused by the occupation; and that all states/nations, the UN and international organisations have an obligation to recognise the occupation as illegal.

Israel, led by President Isaac Herzog and Prime Minister Benjamin Netanyahu, has predictably lashed out at the judgment, but its usual efforts to describe any criticism as anti-Semitism would stand on tenuous ground. Key elements of the opinion were passed by a majority of 14 to 1. Uganda’s Judge Julia Sebutinde was the solitary voice in opposition, while the majority opinion included judges from the US, Japan, Germany, Brazil, Australia, China, Mexico, South Africa and Justice Dalveer Bhandari from India.

In a perverse way, the resolution passed by the Knesset just a day earlier (July 18) also brings an end to the ambiguity and obfuscation that have characterised Israel’s position on the Occupied Territories since the Six-Day War in June 1967. Sixty-eight members supported the resolution opposing the establishment of a Palestinian state and describing it as “an existential threat to the State of Israel and its citizens”, while only the nine Arab members of Knesset opposed it. Others, including centre-left groups and Labour, chose to sit out rather than stand up and be counted in opposition to the resolution.

The tenor of the Knesset resolution, at one level, reflects the marked hardening of public opinion in Israel following the brutal massacre by the Hamas on October 7, 2023, that left some 1,100 Israelis dead. But it also comes at a time when Israel’s horrific war on Gaza has left close to 40,000 Palestinians dead and some 90,000 wounded. In the context of the ICJ ruling, it poses a serious challenge to the international community and especially to the US and others which invoke international law and a rules-based order at the drop of a hat.

The obfuscation about the Occupied Territories began in 1967 itself, when British diplomats started drafting UN Security Council Resolution 242 that was eventually adopted in November that year. It called for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict”. Or was it the territories? Didn’t it mean all of the occupied territories, barring minor reciprocal adjustments to cater to considerations of demographics and territorial contiguity? English and French were the only two working languages of the Security Council and the French version was unambiguous. “Retrait des forces armées israéliennes des territoires occupés lors du récent conflit,” it said in its reference to “the occupied territories”.

There was no ambiguity in the mind of the Indian representative at the UNSC, who said that the UNSCR 242 would commit Israel to “total withdrawal of Israel forces from all the territories — I repeat, all the territories — occupied by Israel as a result of the conflict which began on June 5, 1967”.

The Oslo Accords of 1993 and 1995, signed between Yasser Arafat and then Israeli PM Yitzhak Rabin, led to the establishment of the Palestine Authority, initially with limited self-rule over the West Bank and Gaza and the promise of a transition to full statehood within a five-year period. Oslo II divided the West Bank into three zones: Zone A (18 per cent of the area) under full Palestinian civil and security control; Zone B (22 per cent) under Palestinian civil control and joint security control; and Zone C (60 per cent) under full civilian and security control of Israel.

The Palestine Authority took charge in Ramallah and for a while, there was real hope. But Rabin was assassinated by Jewish extremist Yigal Amir in November 1995, ironically at a rally in Tel Aviv in support of the Oslo Accords. Things started going downhill quite rapidly after that, leading to the Second Intifada in September 2000 and an escalating wave of mutual violence including several suicide attacks by Palestinians. The Madrid Process, the Middle East Quartet (the US, EU, Russia and the UN) and the Saudi-led Arab Peace Initiative tried to revive the peace process on the principle of land for peace, but without success. Meanwhile, the steady rise of the ultra-right and ultra-orthodox parties in Israel combined with its overwhelming military superiority to underscore a narrative that Israel has a Biblical claim on all of the land from the Jordan River to the Mediterranean Sea. And as for peace, it can flow from the barrel of a gun.

As a result, government policies and incentives have allowed illegal Jewish settlements to expand at an ever-faster rate, leaving the presumed State of Palestine as a pockmarked landscape of 192 non-contiguous towns and villages in the West Bank and a Gaza Strip that is in ruins. A viable state has been rendered virtually impossible by the plain fact of 144 Jewish settlements spread over the West Bank and East Jerusalem and the presence of some 700,000 settlers, many of them armed and protected by the government of Israel.

For the optimists among us and perhaps for the 145 countries that have recognised the state of Palestine, the ICJ ruling will come as a breath of fresh air, possibly igniting hope that justice may finally be within reach. The ruling is non-binding, but some European nations will undoubtedly pay heed to it and may even impose sanctions against designated Israeli individuals and entities. It may also provide a basis for stronger UN resolutions.

The illegality of the occupation is no longer in doubt. But a reality check is round the corner when Netanyahu will address a joint session of the US Congress on July 27. And if the Trump-Vance duo ends up in the White House, don’t be surprised if the intemperate view of the Knesset prevails over the ruling of the judges at the ICJ. That might just be the fitting requiem of the rules-based order.