Israel a no-show at the ICJ, but its advocates argue the ‘occupation’ isn’t illegal

Scholars contend Palestinian failure to accept several peace proposals and address Israeli security concerns are cause of long-term Israeli rule in the territories

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Palestinian Foreign Minister Riyad al-Maliki addresses the International Court of Justice (ICJ during public hearings on the request for an advisory opinion in respect of the "Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem," from February 19 to 26 at the Peace Palace in The Hague. (International Court of Justice)
Palestinian Foreign Minister Riyad al-Maliki addresses the International Court of Justice (ICJ during public hearings on the request for an advisory opinion in respect of the "Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem," from February 19 to 26 at the Peace Palace in The Hague. (International Court of Justice)

Israel’s decision not to send a delegation to the International Court of Justice this week to defend itself against allegations that its 56-year-long rule of the West Bank and East Jerusalem is illegal has meant the claims against it are going virtually unchallenged.

During the course of Monday’s three-hour session at the court, seven representatives for the Palestinians alleged that Israel’s rule in the West Bank and East Jerusalem was illegal, and accused the country of a litany of the most heinous crimes, including colonialism, ethnic cleansing, apartheid, and even genocide.

Similar accusations were leveled against Israel by the South African delegation in court on Tuesday.

Jerusalem’s stance is that the ICJ advisory opinion sought by the UN General Assembly is illegitimate since numerous UN resolutions, as well as bilateral Israeli-Palestinian agreements, have established that the correct framework for resolving the conflict should be political, not legal.

In addition, some prominent legal scholars and international organizations have presented arguments against the Palestinian position.

One such defense of Israel argues that only the bilateral treaties between Israel and the Palestinians must serve as the framework for resolving the dispute. Another points out that it is the Palestinian leadership’s rejection of comprehensive peace agreements that has led to the lengthy duration of Israeli rule in the territories.

The International Court of Justice (ICJ), holds public hearings on the request for an advisory opinion in respect of “the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem,” from February 19 to 26 at the Peace Palace in The Hague. (International Court of Justice)

At the heart of the arguments made against Israeli rule in the territories is that it is unlawful due to its permanence, whereas under international law it must be a temporary arrangement.

Israel captured the West Bank and East Jerusalem — which includes the Old City and its holy sites — from Jordan during the 1967 Six Day War. In later years Israel annexed East Jerusalem in a move not recognized internationally, but it has not done so with the West Bank.

Representing the Palestinians on Monday, international lawyer Paul Reichler asserted that Israel’s establishment of Jewish neighborhoods in East Jerusalem and  hundreds of settlements and outposts in the West Bank — which he described as having been “implanted” with 700,000 Israelis — testified to the permanence of the alleged occupation.

He coupled this with statements by senior Israeli politicians, including Prime Minister Benjamin Netanyahu, as well as commitments by the current government, expressing either a desire to legally annex some or all of the territories or an intent to never relinquish control over them.

Asserting permanent control over these territories in such a manner violates the principle of the inadmissibility of the acquisition of territory by force, argued Reichler.

But the Hague Conventions of 1907 and the Geneva Convention of 1949, which address the laws of occupation among numerous other issues, do not require an occupying force to withdraw before a treaty is concluded, wrote Prof. Orde Kittrie in the Articles of War blog of the Liebler Institute at West Point.

Kittrie pointed out that UN Security Council resolutions 242 and 338 created a legal framework of “land for peace” on which subsequent treaties including the Oslo Accords were based, and called for Israeli withdrawal from disputed territories only as part of the “establishment of a just and lasting peace” including “respect for and acknowledgment of” Israel’s “right to live in peace… free from threats or acts of force.”

This point was also made by a submission to the ICJ filed last week by the International Association of Jewish Lawyers and Jurists, which pointed out that the UN Security Council and General Assembly have “reiterated on numerous occasions their support for the existing bilateral agreements as the applicable legal framework for settling the Israeli-Palestinian conflict and determining the sovereign status of the territory in dispute.”

And Israel’s own brief submission to the ICJ made a similar point, noting the UN General Assembly’s request for an advisory opinion on the legality of Israel’s military rule failed to “appreciate the very existence of the Israeli-Palestinian agreements, according to which the two sides have agreed to resolve through direct negotiations, precisely the subject-matter placed before the Court, including such issues as the permanent status of the territory, security arrangements, settlements, and borders.”

(L-R) Prime Minister Yitzhak Rabin, US President Bill Clinton, and PLO Chairman Yasser Arafat, at the Oslo Accords signing ceremony on September 13, 1993. (Wikipedia)

Israel’s submission also argued that attempts to end the conflict, and by extension its military rule, had been “scuttled by repeated rejections by the Palestinian leadership itself of far-reaching offers for the settlement of the conflict and the establishment of a Palestinian State alongside Israel.”

The Israeli document cited statements by former US president Bill Clinton, former US secretary of state Condoleezza Rice, and former Saudi ambassador to the US Prince Bandar bin Sultan, who accused the Palestinians of failing to come to an agreement with Israel and thereby end Israeli rule in the territories.

“The arrangements established through Oslo are ‘still in force and define the legal situation as between the parties until such time as a final agreed settlement has been concluded,’” added the International Association of Jewish Lawyers and Jurists in its submission.

Anne Herzberg, legal adviser to the NGO Monitor organization, which helped formulate that submission, argued that the request for the advisory opinion from the ICJ was an attempt by the Palestinians to evade their responsibilities under the treaties signed with Israel.

“Rather than engaging in political compromise, they’re hoping to find a magic bullet to get Israel to withdraw from the territories, without them needing to compromise,” she said.

Israel in its submission also pointed out that a key issue in the conflict resolution process with the Palestinians was the need to address Israeli security concerns, something court intervention would bypass.

The request for the ICJ’s advisory opinion failed to recognize “the well-established principle — long enshrined in bilateral Israeli-Palestinian agreements” that a resolution to the conflict must “effectively address Israel’s legitimate security concerns,” Israel insisted in its submission.

It further contended that the Palestinian Authority is not only seeking to avoid addressing those concerns but is exacerbating them with its “pay for slay” policy “by which the Palestinian Authority’s own budget is used to financially support and reward terrorists based on the number of Israelis they have murdered.”

The scene of a terror attack in Ra’anana (R), and Ra’anana resident Edna Bluestein, 79 who was killed in the attack, on January 15, 2024. (Magen David Adom/Screenshot: Courtesy, used in accordance with Clause 27a of the Copyright Law)

Speaking to The Times of Israel, Kittrie pointed out that in 2005 Israel unilaterally withdrew from the Gaza Strip — which was separately captured from Egypt, another adversary in the Six Day War — and that the October 7 atrocities 18 years later “underscored the grave and continuing risk of unilateral Israeli withdrawal from the West Bank.”

He said that arguing for Israeli withdrawal from the territories without its security concerns being addressed would be tantamount to “arguing that Israel has no right to self-defense,” and said that resolutions 242 and 338 stipulate that “Israel does not need to withdraw until they have received reliable security guarantees from the Palestinians.”

Prof. Aeyal Gross, a scholar of international law at Tel Aviv University, acknowledged that there is no strict timeframe for what is considered an illegal occupation, but argued nevertheless that it must be temporary in nature, something he said was based on the principles of the inadmissibility of acquiring land by force and, in the Palestinian case, the right to self-determination of a people which cannot be denied on a permanent basis.

And Gross, like Reichler in court on Monday, pointed to the Israel government coalition’s document of guiding principles, which declares that “The Jewish people have an exclusive and inalienable right to all parts of the Land of Israel” including “Judea and Samaria,” the Biblical term used by some Israelis for the West Bank.

“When you are establishing so many settlements, it makes the occupation very difficult to reverse; and you are not indicating that it is temporary, you’re indicating you want to control the territory indefinitely,” Gross told The Times of Israel.

“Establishing settlements, encouraging people to move there, giving them incentives to do so… it is the explicit policy of the government, and it is in the coalition agreements,” he added.

Gross said that while it was true that as long as annexation is not formally declared the situation could be reversed, the indefinite nature of Israeli control over the territories was itself problematic.

The application of Israeli law to Israelis living in the West Bank and East Jerusalem and the large number of Israelis residing there could, as the Palestinian delegation argued, even be considered a form of de facto annexation, Gross added.

File: This photo shows a construction site of new housing projects in the West Bank settlement of Givat Ze’ev, June 18, 2023 (AP Photo/Ohad Zwigenberg, File)

Kitterie pointed out, though, Israel has nevertheless not formally annexed the West Bank, and said that the cited quotes by Israeli ministers and citations of government documents had been cherrypicked and could not be used to establish the adoption of a policy that has yet to be implemented.

As the Palestinian delegation made clear on Monday, there are numerous serious problems that have arisen from Israel’s half-century-rule over the West Bank for the Palestinian population living there.

But as Israel’s advocates have contended, there are also weighty arguments to be made that it is not only Israel that bears responsibility for the lengthy duration of its military rule, both regarding the political reality of the conflict or the country’s well-founded security concerns.

Any advisory opinion issued by the ICJ to the UN Security Council and General Assembly will be non-binding, one of the main reasons behind Israel’s decision not to send a delegation to the hearings.

But this also means that its positions on the essence of the legal debate at the ICJ will likely get less attention and less consideration in the formulation of a ruling that could have a significant impact on Israel’s international standing, even if it will be bear no formal legal weight.

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