By Ruling against Israel, the International Court of Justice Will Undermine International Law Itself

In December, the UN General Assembly passed a resolution requesting that the International Court of Justice (ICJ)—a UN body tasked with resolving disputes between states—issue an advisory opinion on the Israeli presence in “the Palestinian territory occupied since 1967.” This very phrase, which assumes that the land in question is Palestinian in a legal sense rather than territory occupied first by Jordan and then by Israel, both prejudices the outcome and bespeaks carelessness about the finer points of international law. The details of the request only accentuate these problems. Orde Kittrie and Bruce Rashkow explain that the ruling the ICJ is poised to issue stands not only to undermine the very basis of the Oslo Accords and of the court’s legitimacy, but also to do serious damage to the laws of war:

While international law prohibits the permanent acquisition by force of the territory of another state, it does not prohibit an interim occupation, which results from a legal use of force in self-defense, pending resolution of the conflict. The 1907 Hague Regulations and 1949 Fourth Geneva Convention both provide for and regulate such occupations. Neither requires an occupier whose occupation results from a legal use of force in self-defense to withdraw before a peace treaty is signed.

In 1967, the international community recognized the legality of Israel’s preemptive action against Arab armies poised to attack. Draft resolutions condemning Israel’s actions were resoundingly defeated in both the UN Security Council and General Assembly.

The expected ICJ ruling—the one the General Assembly’s request was designed to elicit—that any Israeli presence in the West Bank or east Jerusalem is illegal would therefore require an immediate Israeli withdrawal. Setting aside the unlikelihood that the Jewish state would abide by the ruling, as well as the catastrophic consequences doing so would have for Israel, Jordan, and the civilian population of the West Bank, the decision would render moot both the Oslo Accords and prior UN resolutions.

Kittrie and Rashkow explain that “the Oslo I Accord . . . affirmed the Security Council’s ‘land for peace’ framework, set forth in two binding resolutions,” which requires that the two sides engage in “negotiations . . . leading to a permanent settlement” of the conflict. The prospective ICJ ruling obviates the need for such negotiations. And that’s not all:

An ICJ opinion that international law requires Israel to withdraw from the disputed territories without any Palestinian concessions on any of the permanent-status issues would make it far more difficult or even impossible for Palestinian leaders to compromise with Israel on such issues. Since Israel will inevitably decline to withdraw unilaterally, the advisory opinion will, in addition to undercutting compromise-minded Palestinians, create yet another Israeli “violation” with which activists can demand anti-Israel boycotts, divestment, and sanctions. Given the practical realities, that is presumably the real objective of the General Assembly request’s architects.

The pending ICJ advisory proceedings also threaten to expand upon the dangerous precedent . . . that the General Assembly and ICJ can use advisory opinions to circumvent the sovereign right of nation states to determine whether to submit to the Court a particular dispute to which they are a party.

Read more at Articles of War

More about: BDS, International Law, Israeli-Palestinian Conflict, Laws of war, United Nations


Israel Can’t Stake Its Fate on “Ironclad” Promises from Allies

Israeli tanks reportedly reached the center of the Gazan city of Rafah yesterday, suggesting that the campaign there is progressing swiftly. And despite repeatedly warning Jerusalem not to undertake an operation in Rafah, Washington has not indicated any displeasure, nor is it following through on its threat to withhold arms. Even after an IDF airstrike led to the deaths of Gazan civilians on Sunday night, the White House refrained from outright condemnation.

What caused this apparent American change of heart is unclear. But the temporary suspension of arms shipments, the threat of a complete embargo if Israel continued the war, and comments like the president’s assertion in February that the Israeli military response has been “over the top” all call into question the reliability of Joe Biden’s earlier promises of an “ironclad” commitment to Israel’s security. Douglas Feith and Ze’ev Jabotinsky write:

There’s a lesson here: the promises of foreign officials are never entirely trustworthy. Moreover, those officials cannot always be counted on to protect even their own country’s interests, let alone those of others.

Israelis, like Americans, often have excessive faith in the trustworthiness of promises from abroad. This applies to arms-control and peacekeeping arrangements, diplomatic accords, mutual-defense agreements, and membership in multilateral organizations. There can be value in such things—and countries do have interests in their reputations for reliability—but one should be realistic. Commitments from foreign powers are never “ironclad.”

Israel should, of course, maintain and cultivate connections with the United States and other powers. But Zionism is, in essence, about the Jewish people taking responsibility for their own fate.

Read more at JNS

More about: Israeli Security, Joseph Biden, U.S.-Israel relationship