As we enter 2023 with trepidation - especially in Israel/Palestine where the new government of Ben Gvir, Smotrich & Netanyahu (in that order) has just been sworn in - we should note a small measure of support for international law and Palestinian rights. The UN General Assembly just voted to ask the International Court of Justice (ICJ) in The Hague to “render urgently an advisory opinion” on Israel’s “prolonged occupation, settlement and annexation of Palestinian territory.”
The vote passed by a wide margin (87-26, with 53 abstentions), which gives you insight into why Israel prefers to work through the Security Council where it can count on at least the vetoes of the US & the UK. And indeed, among those voting against the resolution were the US, the UK, Canada, Germany, Austria, Hungary, Poland - and Israel. All those so opposed to the Russian occupation of Ukraine! (See the vote in the photo.)
Israel is a master at manipulating international law. For the past half-century it has violated every article of the Fourth Geneva Convention which both protects Palestinian rights, property & lives in the Occupied Territory and prohibits settlement and annexation (including de facto annexation).
Israel has gotten away with this by arguing there IS NO Occupation because the Palestinian territories were never sovereign and thus have no legal status. No one bought that, but then again, the US would not allow any sanctions on Israel to enforce international law.
Still, it's important for Israel to maintain its image as a liberal Western democracy. So now it has adopted an argument for its settlement & de facto annexation of the OPT based precisely on the fact that there IS an occupation - a "prolonged occupation."
Now Israel is arguing that international law recognizes occupation as only a temporary military situation. But since the occupation has grown "prolonged" over the last 54 years with no end in sight, and since the Fourth Geneva Convention requires an Occupying Power to ensure the well-being of the population under its control - something Israel has obviously never done - Israel is now arguing that because of its "prolonged" nature it is REQUIRED to build in the OPT out of its obligation to serve the local population - which now includes the settlers as a "legitimate" part of that population after all these years.
Neither the General Assembly nor the ICJ will accept such a ridiculous and transparent legal argument. It recognizes that "prolonged occupation" is merely a euphemism for de facto annexation, which is what the ICJ is being asked to clarify. But in the end, it doesn't really matter - at least in terms of enforcement. In 2004 the ICJ issued an advisory opinion that Israel must immediately end construction of its illegal wall, dismantle what it has built and compensate the Palestinians affected for all damages suffered by the wall’s construction. Even though the ICJ ruling was adopted overwhelmingly by the General Assembly, it could not be enforced without the Security Council - and Israel knows that will never happen.
All this points to the poverty and futility of the "rights-based" approach to resolving the Israeli-Palestinian "conflict" - or any other that crosses Big Power interests. "Everybody knows," as the Leonard Cohen song goes, what Israel is doing - the Security Council, the General Assembly, the ICJ, governments, parliaments, the media - but no one will expend the political capital needed to take effective political action. As the recent alliance between the US and Israel against Iran shows, Israel has made itself too useful to the neo-colonial West to sanction. Indeed, the US is now proposing a Middle Eastern NATO led by Israel.
The ICJ decision could nevertheless be significant politically. If it rules, as it will do, that "prolonged occupation" means de facto annexation, Israeli rule must end immediately and unconditionally. Since that will not happen, it means that Israel has, in the eyes of the international community, officially an apartheid state.
In my view, only a Palestinian-led political campaign for a single democracy that mobilizes the tremendous support the Palestinians have among the international grassroots has the ability to prevail. The General Assembly's appeal to the ICJ demonstrates that the Palestinians do enjoy support among the peoples, and many governments, of the world. The likely ICJ decision will give us a strong legal and moral basis to force our governments to change their policies.
What is called for is a concerted political campaign along the lines of the anti-apartheid struggle in South Africa, soon grounded on an irrefutable legal basis. That is something to build on. One democratic state - a fitting task for 2023.
31 December 2022