This photo shows the honourable judges at the International Court of Justice in The Hague, Netherlands. AFP

The resolution said a Palestinian state would pose ‘an existential danger (Israel), perpetuate the Israeli-Palestinian conflict and destabilise the region.’ This is nonsense, as Israel possesses the region’s most powerful military as well as the only arsenal of nuclear weapons

Anticipating last Friday’s International Court of Justice (ICJ) call for ending the occupation of Palestinian territory, Israel’s Knesset rejected the creation of a Palestinian state. This resolution was adopted by a solid majority of 68 of 120 legislators with nine against.

The resolution said a Palestinian state would pose “an existential danger (Israel), perpetuate the Israeli-Palestinian conflict and destabilise the region.” This is nonsense. As Israel possesses the region’s most powerful military as well as the only arsenal of nuclear weapons. A demilitarised Palestinian ministate in 22 per cent of the country would hardly be an “existential danger” to Israel. A Palestinian state could not only end the century-old conflict in line with the 2002 Arab summit’s peace plan but also stabilise the region by encouraging recognition of Israel. 

The Court contended that Israel has violated international law by denying Palestinians their right to self-determination in the territories occupied in 1967. The ICJ argued that Israel’s 57-year occupation is permanent rather than “temporary,” which is allowed under international law.  The ICJ said Israel violated the Fourth Geneva Convention, which regulates belligerent occupation, by transferring its citizens into the occupied lands. Israel has illegally extended Israeli law to the settlements and has imposed on Palestinians a separate, discriminatory regime (akin to outlawed apartheid) and de facto illegally annexing the West Bank and East Jerusalem.  

The ICJ commanded Israel to cease settlement expansion and remove all settlers so that Palestinians could realise their right to self-determination in Gaza, East Jerusalem and the West Bank which should be treated as a single unit. Palestinians were also to receive reparations and compensation for their losses during the period of occupation.

The ICJ’s ruling reaffirms the two-state solution as the means for Palestinians to gain self-determination and enable Palestinians and the region to reach peace with Israel. The two-state solution was adopted in 1937 during the Palestinian uprising (1936-39) against the British mandate and Jewish immigration to Palestine. At that time Britain’s Peel Commission called for the partition of Palestine into a Jewish state along the coast, an “Arab” Palestinian state in the West Bank and Negev and a neutral zone covering religious sites. This plan formed the basis of the 1947 UN General Assembly’s partition plan (Resolution 181) which divided Palestine into three areas, two states and an international zone for Jerusalem. Instead of abiding by the plan, Israel’s leaders accepted partition as a legal basis for the ultimate establishment of a Jewish state in all of Palestine. This was achieved by war in 1948-49 and 1967.

Israel’s permanent occupation was rejected in November 1967 by Security Council Resolution 242 of November 1967 which called for Israeli withdrawal from “territories” occupied during the June war. The US and its allies removed “the” before “territories,” suggesting that Israel could retain some conquered land. However, the resolution’s French version calls for Israeli “retrait... des territoires occupies” (THE territory occupied) during the June war and the resolution reaffirmed the principle of the “inadmissibility of the acquisition of territory by war.”

In November 1974, the General Assembly adopted a resolution affirming the “right to (Palestinian) self-determination without external interference”, “the right to national independence and sovereignty”, and the “right to return to their homes and property.” The ICJ’s ruling serves as a belated call to the key world powers — i.e. the US and its allies — to deliver. 

Israel and its allies argue that the ICJ’s rulings constitute an advisory opinion rather than demands to be implemented.  This is UN procedure. ICJ acted on a request by the UN General Assembly which will have to decide what to do with the judgements. The Assembly can only recommend. The Security Council is the only UN body with the power to mandate policies or intervention.

For decades, the Council has been prevented from acting against Israel by the US veto. However, if the Council fails to prevent threats of global peace and security, the General Assembly can hold an emergency session and demand action under the 1950 Uniting for Peace Resolution. The ICJ rulings could inspire the Assembly to follow this procedure. This would constitute a major outcome of the ICJ’s consideration of Israel’s occupation.

There could be other repercussions. Washington’s submission to Israel makes it impossible for the US to act on major ICJ recommendations. But political and moral pressure on Washington and its Western proxies could force them to insist Israel curb settlement activity, clamp down on extremist settlers who attack Palestinians, and cease demolishing Palestinian homes and expropriating Palestinian land. Investors could be compelled to think twice about legal risks of financing settlement enterprises as this would violate international law and make them vulnerable to legal action.

As a result of the Court’s unambiguous characterisations of Israel’s actions, the ICJ could be expected to decide that Israel is committing “genocide” in Gaza in response to South Africa’s submission. This will have serious ramifications for Israel at home and abroad.  For the past 76 years Israel has relied on the genocide of Jews during the World War II Holocaust to provide impunity and immunity from prosecution for committing war crimes against Palestinians and its neighbours. 

The ICJ’s firm, comprehensive stand could propel the loitering International Criminal Court (ICC) to proceed with warrants for the arrest of Israeli Prime Minister Binyamin Netanyahu and Defence Minister Yoav Gallant who have been charged with war crimes and crimes against humanity during the Gaza war. If the warrants are issued, the 124 states which are signatories of the ICC statute will be obliged to detain them. These states include France, Germany, Greece, Cyprus, Ireland, Italy, Holland, and Britain where Netanyahu and Gallant could not set foot. Failure to arrest the accused would deal a death blow to “rule of international law” adopted after World War II but never applied to Israel.

Finally, the ICJ’s tough line could encourage countries which have not recognised Palestine to join the 145 states which have among the 193 UN member states and boost pressure for Palestine to be accorded full, unconditional UN membership. Some might also call for Israel’s membership to be suspended or withdrawn. This was conditioned on Israeli implementation of General Assembly resolutions 181 of 1947 and 194 of 1948.  The first gave Israel only 55 per cent of Palestine and the second called for the return of Palestinians to their homes in the 78 per cent of Palestine initially conquered by Israel and compensation for their losses. The second provision may have motivated ICJ’s judges to call for the return home of Palestinians displaced since 1967, reparations and compensation.