Michael Sfard, an Israeli human rights lawyer and the author of The Wall and the Gate: Israel, Palestine, and the Legal Battle for Human Rights, is a DAWN fellow.
The sweeping, 83-page advisory opinion published last Friday by the International Court of Justice in The Hague on Israel's occupation of Palestinian territory is, as the cliché goes, a legal earthquake. The court explicitly stated that the Israeli presence in the occupied Palestinian territory and domination over it is illegal—and that includes East Jerusalem, for Israelis and others who have forgotten that the Holy Basin is under occupation. Israel has the legal obligation to end this prolonged occupation, the court ruled. In doing so, the ICJ put an end to the great Israeli lie, which seeks to enjoy the powers of a military occupier but not be subject to the limitations and obligations imposed on an occupier by international law.
The ICJ also determined that Israel carries out forced transfers of Palestinian communities and individuals in the occupied territories—a war crime, which when committed systematically or in a widespread manner is a crime against humanity, an even graver category of crimes. The court found that Israel does not prevent or punish settler violence; that it expropriates public lands and colonizes it by allocating them to settlers; that it has annexed East Jerusalem and is annexing large parts of the West Bank—mainly Area C under the Oslo Accords, which makes up roughly 60 percent of West Bank territory—in direct breach of a clear and central prohibition under international law. Perhaps most seriously, the court determined that Israel administers a system of racial segregation and possibly even apartheid in the occupied territories. In addition to all of that, the court found that Israel has to make reparations to Palestinian victims of these wrongs, including restitution of land and property where possible and compensation where restitution is impractical.
This is, indeed, a legal earthquake. Everything that human rights organizations and legal scholars, both in Israel-Palestine and around the world, have argued for years has now been validated by the highest international legal institution in the world.
The ICJ put an end to the great Israeli lie, which seeks to enjoy the powers of a military occupier but not be subject to the limitations and obligations imposed on an occupier by international law.
- Michael Sfard
But earthquakes in international law are more like earthquakes in slow motion. Unlike a state court whose rulings take immediate effect—someone goes to prison, or a government policy is stopped in its tracks—an advisory opinion of the International Court of Justice penetrates and influences political reality in a creeping and gradual manner. In that way, perhaps instead of an earthquake, it is more like a cloud that moves slowly and darkens the sun.
Therefore, on the day after the opinion was published, you might have felt that basically nothing has changed. That the occupation has not moved an inch, that it is as solid and stable as it was before this advisory opinion was issued in The Hague. But that isn't really the case. The impact of this opinion will be in its aftershocks.
It will be felt through the lawyers, legal advisers and others who will now begin to advise and guide the governments, international agencies and other entities they serve based on international law, translating the ICJ's determinations about the Israeli occupation into prohibitions of certain actions and obligations to carry out others in relation to Israel. For example, the ICJ made clear that the obligation of third parties—namely, all the countries of the world and the United Nations—is not limited to just not recognizing the illegal Israeli presence in the occupied Palestinian territory. They are also obligated to refrain from any action that might assist Israel in perpetuating its domination there—as the advisory opinion states, "not to render aid or assistance in maintaining the situation created by Israel's illegal presence in the Occupied Palestinian Territory." States would instead have to vet every dealing with Israel and make sure their commercial or diplomatic relations do not directly or indirectly help Israel in its annexationist efforts and colonization project. If they don't, they would be in flagrant violation of international law.
Everything that human rights organizations and legal scholars, both in Israel-Palestine and around the world, have argued for years has now been validated by the highest international legal institution in the world.
- Michael Sfard
This is why the ICJ opinion is a legal earthquake. In the coming weeks and months, various countries will be forced to reconsider the nature of their relations with Israel—commercial, military, economic and diplomatic. Ostensibly, their duty is to distinguish between Israel at the borders of the Green Line—the 1949 armistice lines—and the settlements in the occupied Palestinian territory. But when the Israeli government itself erases the Green Line, the changes in relations could also reach Tel Aviv.
When the same Israeli institutions operate in the West Bank and in Israel—whether the Israeli army, Israel's Lands Authority or the Antiquities Authority, which could stretch its power to include the West Bank under a new bill pushed by the current government—it might be difficult for another country to carry out a joint project with them. Even if that project is geographically limited to the Green Line, it could violate the ICJ's prohibition on rendering aid or assistance in maintaining Israel's illegal occupation. And even if it is possible to split hairs like that, some countries might prefer to avoid the headache of ensuring that the effects of their commercial or cultural cooperation with Israel indeed stay in Israel.
The special power of the law allows it sometimes to act like a trump card over the clogs created by political interests. The law, in its clarity and scope, is able in some cases to bring about an action, or prevent an action, that otherwise would be determined only by narrow political will, or the lack of it. In this case, international law's position on Israel's occupation, as declared by the ICJ, is a new and potent actor that joins politics, economics and military power, among others, in the matrix of forces that will determine the fate of this conflict. For political leaders around the world, including in Washington, who find it difficult to criticize Israeli policy and who, either through action or inaction, have helped perpetuate the Israeli occupation, they now have a reason to change course. They can say: "I have no choice, it's a legal matter. That is what the law dictates."
