ICJ ‘occupation’ opinion heaps pressure on Israel

Israeli President Isaac Herzog accused the International Court of Justice (ICJ) in The Hague this week of mixing politics with law, rejecting what he called the court’s outright one-sided and ill-judged advisory opinion.

Israel’s president, a lawyer by profession, was referring to the opinion that the ICJ issued on 19 July that Israel’s presence in the West Bank and East Jerusalem contravened international law.

The court said on 19 July that the “occupation” was illegal, discriminatory, and should end as soon as possible.

Herzog maintained the ICJ’s words undermined the entire notion of the process of negotiations between Israel and the Palestinians. It also blatantly ignored the Jewish people’s historic connection to Israel and our eternal capital, Jerusalem.

Although the ICJ’s opinion is non-binding, “it will likely embolden a South African government that persistently uses the ICJ as a propaganda tool”, said Rolene Marks, the spokesperson for the South African Zionist Federation (SAZF).

“The opinion demands that Israel end its rule in [the West Bank and East Jerusalem], dismantle Jewish communities and cease all new activities, and provide restitution and reparations to Palestinians. Such a move would inevitably result in the areas suffering the same fate as Gaza after Israel’s 2005 withdrawal: [becoming] a breeding ground for terror and rocket attacks threatening Israel’s existence,” Marks said.

She said the SAZF “rejects and condemns” the ICJ’s opinion, which “is merely another explicitly political gesture from a partisan institution, deeply flawed on legal and moral grounds. These accusations are an attempt to delegitimise Israel’s right of self-defence and to deflect attention from Hamas’s actions.

“The South African government’s support for these proceedings exemplifies a foreign policy trajectory that risks severe economic repercussions, as evidenced by [Trade] Minister Parks Tau’s upcoming shuttle diplomacy in the United States [US] to protect South Africa’s preferential access under AGOA [the African Growth and Opportunity Act].”

South Africa’s relations with the US have already been strained due to Pretoria’s positions on the Ukraine and Gaza conflicts.

This ICJ case is separate from the charge of “genocide” brought by South Africa against Israel in the ICJ earlier in 2024.

As in the “genocide” case, the vice-president of the ICJ, Ugandan Judge Julia Sebutinde, disagreed with most of her colleagues. Though not binding, this opinion will add to the mountain of international condemnation heaped on Israel. It won’t bring peace any closer.

Those on the political right in Israel don’t consider this an “occupation”. They refer to the West Bank territories by their biblical names of Judea and Samaria, and consider these areas to be part of the land promised by G-d to the Jewish people. And you wouldn’t find many Israelis who would want to see Jerusalem divided or shared with a Palestinian state.

This case was launched in late 2002 at the ICJ after a referral from the United Nations (UN) General Assembly. In its advisory opinion, the ICJ concluded that “the state of Israel is under an obligation to bring to an end its unlawful presence in the Occupied Palestinian Territory as rapidly as possible … cease immediately all new settlement activities, and to evacuate all settlers from the Occupied Palestinian Territory”. It further said Israel should make reparations to the Palestinians, and urged all other states not to recognise Israel’s “unlawful presence” in the territories. The ICJ said the UN “should consider the precise modalities and further action required” to end the “occupation” as rapidly as possible.

South Africa joined 48 UN members in delivering a statement on the issue to the ICJ in February 2024. Unsurprisingly, the South African government welcomed the advisory opinion.

As expected, this added fuel to the South African government’s views on Israel. Minister of International Relations and Cooperation Ronald Lamola claimed the ICJ opinion “affirms South Africa’s long-standing position that the occupation by Israel of Palestinian territory remains unlawful under international law”.

“The international community must act to bring an immediate end to the occupation and the gross violations of international humanitarian and human rights law being perpetrated by Israel against the Palestinian people,” Lamola said. “There’s now an additional legal obligation for all states to end complicity in Israel’s illegal actions, and to act to ensure respect for international law. This finding reaffirms that the Israeli government is guilty of practicing the crime of apartheid, as the court put it.”

Israel’s ministry of foreign affairs said, “The court’s opinion is fundamentally wrong. It injects the politics of the corridors of the UN in New York into the courtrooms of the ICJ in The Hague.” The ministry said the opinion ignored the 7 October attack and Israel’s right to defend itself.

It added, “The Palestinian Authority, which initiated the move, isn’t interested in peace, only in slinging mud against Israel. Peace can be achieved only through direct negotiations between the parties, and the Palestinian Authority will not be able to evade this reality by turning to international tribunals.”

There was a difference of opinion among ICJ judges. In her dissenting opinion, ICJ Judge Julia Sebutinde criticised the opinion for “the lack of accurate, balanced, and reliable information to arrive judiciously at a fair conclusion upon disputed questions of fact”.

She also said the complaint’s wording was biased, and the ruling wouldn’t lead to reconciliation. She said the advisory opinion omitted “the historical backdrop crucial to understanding the multifaceted Israeli-Palestinian dispute, and is tantamount to a one-sided ‘forensic audit’ of Israel’s compliance with international law that doesn’t reflect a balanced and impartial examination of the pertinent legal and factual questions”.

Though the advisory opinion isn’t binding, it’s unpleasant and will add to international condemnation of Israel and pressure to end the war in Gaza before Hamas is fully defeated, and indeed to withdraw from the territories. Neither look to be on the cards. The ruling will probably lead to a further damnation and delegitimisation of Israel in the court that matters – the court of public opinion.