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What the top UN court’s ruling means for Israel

Though non-binding, the ICJ’s rulings on the ongoing Gaza massacre strip away the Jewish state’s ability to obfuscate its crimes

Tarik Cyril Amar, a historian from Germany working at Koç University, Istanbul, on Russia, Ukraine, and Eastern Europe, the history of World War II, the cultural Cold War, and the politics of memory 22 July 24,  https://www.rt.com/news/601411-icj-israel-palestine-genocide/

The 15 judges of the International Court of Justice (ICJ), the highest judicial organ of the United Nations, have issued what everyone agrees is a landmark finding. “Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem,” is, in essence, a devastating condemnation of Israel’s policies and crimes in the territories which it conquered more than half a century ago, as a consequence of the Six Day War of 1967, which it still holds today.

The ICJ finding also, inevitably, means (whether the judges intend it or not) that not only Israel’s policy in these specific territories, but the Zionist project as such, is based on the irreparable injustice of violently depriving the Palestinians of their inalienable right to national self-determination. Make no mistake, this is not “merely” a blow to the crimes of Israeli occupation and annexation; it calls into question the foundations of Israel as a state, as it is built around the systematic defiance of justice, law, and elementary ethics.

One feature enhancing the impact of the ICJ finding is its comprehensiveness. The 80-page document is the outcome of a long and thorough process that started in late 2022, when the General Assembly of the UN requested what is known as an “advisory opinion.” Detailed and closely argued, the findings are based, among other things, on the combined expertise of some of the best jurists in the world and hearings that involved almost 60 states. (Israel, clearly aware that its position was less than promising and generally contemptuous of international law, shunned the opportunity to state its case, which adds to the absurdity of its current rage over the result.)

However, while similarly meticulous legal assessments tend to generate complicated outcomes, that is not the case here. As has been widely acknowledged, the findings are devastating for Israel and, at least in legal terms, a clear triumph for the Palestinians and Palestine. In the words of Erika Guevara Rosas, senior director for research, advocacy, policy, and campaigns at Amnesty International, the ICJ’s “conclusion is loud and clear.”

The ICJ has recognized without qualifications that Israel’s holding of territories it seized during the Six Day War – including East Jerusalem (which Israel has officially though unlawfully annexed) and the West Bank (which it pretends to “occupy” but is, in reality, annexing) is illegal and needs to end asap.

In particular, the ICJ made it clear that all settlement must cease and that the settlers already on these territories must leave. That decision alone means that between 700,000 and 750,000 Israeli illegals (here, that term is, for once, exactly correct) should not be where they are. Not only do all of them have to leave the over 100 settlements they never had a right to establish; the Israeli state has an obligation to evacuate them. Moreover, Israel’s expropriations of land are also illegal, that is, simply put, theft. The ICJ has ordered it to return what it has stolen, that is, tens of thousands of acres.

The Israeli state is, of course, deeply implicated in the illegal acts the ICJ has ordered it to stop and even reverse. Israel’s longstanding policies of incentivizing its Jewish citizens – including de facto colonial settlers from anywhere in the world – to move into the illegally held territories and steal Palestinian land and resources is fundamentally criminal, among other reasons, because it is inconsistent with international law, particularly the humanitarian law enshrined in the Geneva Conventions.

Regarding the Gaza Strip, long a de facto concentration camp for its Palestinian inhabitants and since October 2023 the site of Israel’s ongoing genocidal massacre against them, the ICJ has clearly rejected the all-too-frequently heard Israeli argument that its forces retreated from it in 2005.

In reality, as honest legal experts have long maintained and the ICJ has now confirmed explicitly, Israel has always exerted so much stifling control over this area that it has remained an occupying power, with all the attendant obligations, whether its forces were on the ground inside the Gaza Strip or abusing its inhabitants while stationed around it.

The ICJ also clarified the issue of apartheid. As should be well known, apartheid is a recognized crime under international law (it is not merely a name for one specific criminal regime once practiced in South Africa). Under, for instance, the Rome Statute of the International Criminal Court – not to be confused with the ICJ – the “crime of apartheid” is defined as a “crime against humanity” akin to, for instance, murder, extermination, enslavement, or torture. Also according to the Rome statute, what makes apartheid special is that it is “an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”

Put simply, apartheid is, literally, one of the worst crimes a regime and the people supporting and working for it can possibly commit. In the case of Israel, unbiased experts and various human rights organizations have long argued that it is committing this crime as well. The ICJ has addressed this issue, noting arguments “that Israel’s policies and practices in the Occupied Palestinian Territory amount to segregation or apartheid, in breach of Article 3 of CERD,” that is, the “Convention on the Elimination of All Forms of Racial Discrimination” (also known as the International Convention on the Elimination of All Forms of Racial Discrimination, ICERD).

Article 3 of the CERD imposes on states the duty not only to “condemn racial segregation and apartheid,” but also to “undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” The ICJ has concluded that Israel, by its “legislation” and “measures,” that is, really by everything it does as a state, is in breach of this key provision.

Israel is, in sum, a state practicing the crime against humanity of apartheid, de facto annexing and settling territories it has no conceivable legal claim on, and systematically denying a whole nation, the Palestinians, their right to self-determination. The court has also finished off any pretense that Israel can justify its continuing, pervasive criminality by alleged “security” needs. Those are only some of the ICJ’s key findings. Others concern Palestinian rights to restitution, return, and reparations, for instance. For anyone even vaguely familiar with how the Israeli state operates, it is obvious that these ICJ findings have declared its core principles illegal, as they are.

Many states, at least those with enough power, break international law, some quite habitually (the US, for instance), some “only” occasionally. Israel, however, is special: By virtue of its own, freely chosen policies informed by a nationalist ideology of supremacy and colonial settlement, it has made breaking international law its reason of state: without it, it is hard to even imagine how it can continue. Note, in this respect, that its minister of defense and its prime minister are on the verge of having warrants issued against them for crimes against humanity and war crimes by the International Criminal Court, while the ICJ has already found that genocide is a plausible possibility in Gaza and, since Israel has brutally disregarded all its injunctions, will most likely confirm that finding in a final judgment in the not-too-distant future.

One thing that the ICJ findings confirm is, of course, that the Palestinians have a right to armed resistance under international law. Another thing that follows is that many things that Israel and its Western backers pretend are up for negotiation are not: Palestinians have a right to get their land back; Israel has no right to use it, in any way, not even as a bargaining chip.

A third thing also follows, but from the Israeli response: The whole Israeli political spectrum, not only Prime Minister Netanyahu and the other extremists in his cabinet, has rejected the ICJ findings. Hence, the illusion that the problem with Israel is just a few radicals in power must be buried once and for all: Unfortunately, its delusions of domination and supremacy are widespread throughout its political sphere and its society. Israel is the worst rogue state in the world, and it is also a dead end. For that, it cannot, as its elites usually do, blame external enemies or “anti-Semitism.” In reality, its own arrogance and outrageous violence against the Palestinians and its neighbors are to blame.

Of course, these ICJ findings, as many cynics will remind us, will not compel Israel to change. Indeed, as UN Special Rapporteur Francesca Albanese has pointed out, Israel’s usual response to being called out is to commit even more crimes, as if to make a point about its defiance of international law. Yet it is shortsighted to believe that the ICJ’s condemnation is irrelevant.

For one thing, the ICJ has been explicit that all other states have a duty to “co-operate with the United Nations” to bring about “an end to Israel’s illegal presence in the Occupied Palestinian Territory and the full realization of the right of the Palestinian people to self-determination.” In addition, the judges also reiterated, in great detail, that not only other states, but also “international organizations, specialized agencies, investment corporations and all other institutions” must not “recognize, or cooperate with or assist in any manner in, any measures undertaken by Israel to exploit the resources of the occupied territories or to effect any changes in the demographic composition or geographic character or institutional structure of those territories.”

In essence, the ICJ has put all governments on this planet on notice that they are not free to do as they please about Israel and its crimes, but that they are bound by laws to help stop them and to abstain from being accomplices. That, of course, is an aspect of the findings that should concern the many hypocrites and accomplices in the EU and the US, such as German Chancellor Olaf Scholz, for instance, who cannot see anything but a “comprehensive compliance with international law” when he looks at Israel. But then, that’s the same Olaf Scholz, of course, who can’t figure out who blew up his country’s gas pipelines. Likewise, the leaders of the UK, with “Labour-friend-of-Israel” and, embarrassingly, human rights lawyer Keir Starmer in the lead, and those of the US, in the process of co-perpetrating the genocide in Gaza, should feel at least some discomfort: Standing by Israel will not be cost-free much longer.

Ultimately, the single most important result of these ICJ findings has to do with the enormous role that systematic obfuscation – in plain language: lying – plays for the Israeli regime and its society. All those who have long named Israel’s systemic crimes and called for resistance to them, whether outside or inside Palestine, now have, in effect, the highest court of the world on their side. There is no more room for debate about what Israel is doing, and once that has been settled, there is no argument left for defending it. The ICJ findings won’t suddenly change the world, but when the world does change, they will have played an important role.

July 23, 2024 Posted by Christina Macpherson | Israel, Legal | Leave a comment