25.07.2024

Law of the land

Benjamin Netanyahu took to X to denounce the ICJ’s advisory opinion on the illegality of Israel still holding Palestinian territory captured in 1967. Biblical myth supposedly trumps international law. But, as Mike Macnair says, the opinion has some considerable legal significance. That is why the mass media in Britain has been so quiet

On July 19 the International Court of Justice at the Hague handed down its “advisory opinion” on the legality of the continued Israeli occupation of Palestinian territories outside Israel’s 1967 borders. The opinion had been requested by the United Nations general assembly on January 20 2023, but was subject to the usual delays in legal proceedings - with written statements, and then comments, received from various states between July and November 2023, public oral hearings in February 2024, and another five months to produce the opinion and the dissents and separate opinions.¹

The 77-page ‘opinion’ is backed by large majorities of the judges: 14 to one for four points: the court has jurisdiction and should in its discretion give an opinion: Israel is under an obligation to end settlement activity; and to withdraw settlers; and Israel is under an obligation to pay reparations (here only the Ugandan vice-president of the court, Julia Sebutinde, was prepared to back the Israeli, US and British position.)

The majority was 12 to three for three other points: that all states are under an obligation not to recognise the situation as legal or to aid or assist Israel; that the UN is under the same obligations; and that the general assembly and security council should consider measures to bring the occupation to an end. Here Sebutinde was joined by French judge Ronny Abraham and the Romanian former foreign minister Bogdan Aurescu.²

That majority was reduced to 11 to four for the two most general points - “that the state of Israel’s continued presence in the occupied Palestinian territory is unlawful” and “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”; here the dissenters were joined by the Slovakian judge, Peter Tomka.³

Though most of the majority come from countries outside the imperialist core,⁴ Hilary Charlesworth of Australia, Sarah Cleveland of the USA, Yuji Iwasawa of Japan and Georg Nolte of Germany voted with them. It is perhaps significant that these are all academic public international lawyers by background, with less close relationships to foreign ministries than Abraham, Aurescu and Tomka.⁵ Further, the scope of the dissenters is actually rather narrow; only Sebutinde is prepared actually to defend the Israeli, US and UK line.

The lesson to be drawn from all this is that, in spite of the best efforts of the US, Israeli and British states, the overwhelming majority of public international lawyers think that Israel’s conduct in the occupied territories is illegal under the terms of the UN charter and other aspects of the law of war. The same is, of course, true of the large majority of states, but this has already been obvious for years from repeated UN general assembly votes.

Responses

Israel denounced the decision as a “decision of lies”. Benjamin Netanyahu took to X to claim:

The Jewish people are not conquerors in their own land - not in our eternal capital, Jerusalem, and not in the land of our ancestors in Judea and Samaria ... No false decision in The Hague will distort this historical truth and likewise the legality of Israeli settlement in all the territories of our homeland cannot be contested.⁶

The Jewish Chronicle has similarly collected a series of pro-Israel denunciations of the decision.⁷

The USA more cautiously characterised it as unhelpfully over-broad - a state department spokesperson contending that “we are concerned that the breadth of the court’s opinion will complicate efforts to resolve the conflict”.⁸ Josep Borrell, the European Union’s high representative for foreign affairs, was similarly cautious. In general, he said that “it is our moral duty to reaffirm our unwavering commitment to all ICJ decisions in a consistent manner, irrespective of the subject in question”. But, on the specifics, the opinion “will need to be analysed more thoroughly, including in view of its implications for EU policy”.⁹

The British mass media has been largely quiet about the decision - like the policeman who says, ‘Nothing to see here: move along now’. This was to be expected, given the prior suppressive response of the media to the January 26 interim ruling on South Africa’s case against Israel for genocide in Gaza. What lies behind this suppressive response is the central role played by the ‘anti-Semitism’ smear campaign in recent British politics. In this context, even the very tentative January decision on the South African claim was an important blow against the Atlanticists’ big-lie operation.¹⁰

The July decision on the occupation as such, though merely an ‘advisory opinion’, is a more severe blow to this smear operation. In particular, the court ruled that “all states are under an obligation not to recognise as legal the situation arising from the unlawful presence of the state of Israel in the occupied Palestinian territory and not to render aid or assistance in maintaining the situation created by the continued presence of the state of Israel …” - paragraphs 278 and 279 elaborate on the point. In this context, it could be argued that a boycott of products of the settlement is a legal duty, and that arms supplies to Israel constitute “render[ing] aid or assistance in maintaining the situation created by the continued presence of the state of Israel in the occupied Palestinian territory”.

In turn, it arguably follows that the prosecution of activists for direct actions against firms immediately connected with the settlements,¹¹ and against both arms suppliers to Israel and Israeli-owned arms producers, constitutes such “rendering aid or assistance” by the prosecutors. I have argued before that judges who prevent juries from hearing opinions about climate matters, or about the Palestine question, and so on, violate a long-standing constitutional principle of trial by jury.¹² In the light of the ICJ’s ruling, such judicial conduct arguably also amounts to the UK state “rendering aid or assistance” to the occupation.

As usual, though, the mere fact of a judicial decision adverse to the state’s agenda has limited effects. The workers’ movement needs its own media to draw out and publicise the implications, not to follow the mass-media news agenda. The Morning Star covered the decision on July 20, quoting Jeremy Corbyn, who rightly argued that the decision vindicated Palestine campaigners. But for some reason the paper mixed the story with one about a wave of settler attacks on the West Bank (relevant, but less politically important to be given prominence).¹³ Socialist Worker only reports the decision as the fourth item in a Palestine round-up, below the Israeli attack on Yemen, solidarity with Bella Hadid, and the British resumption of aid to the United Nations Works and Relief Agency.¹⁴

I am not saying that these editorial decisions were, other things apart, mistaken. It is that they were mistaken because of the continued centrality of the ‘anti-Semitism’ smear campaign in politics (which the Bella Hadid case illustrates), with the consequence that the mass media downplays the ICJ decision, which means that giving it as much prominence as possible is an important task for left media.

Limits

All this said, the ICJ decision has important limits. In particular, it is very valuable for defensive politics against the ‘anti-Semitism’ smear campaign. It is much less use for offensive politics (as a banner for Palestinian emancipation).

First, as already indicated, it is an advisory opinion requested by the UN general assembly. It would be a great achievement if Israel was forced - as the ICJ opinion proposes - to withdraw unconditionally from the territories occupied in 1967. But, although the USA agreed to security council resolutions to this effect in 1967 and 1971, it has blocked all further enforcement action against Israel and will certainly continue to do so, unless either the USA’s global military power is overthrown or the costs the alliance with Israel poses on holding down the rest of the Middle East radically expand.

Relatedly, the ICJ decision is legally framed within the UN charter and related treaties - and in particular the principle that “acquisition of territory by military conquest is inadmissible” (paragraphs 59, 95, 105-08, 157-79) and, to a much lesser extent, on the principle of the right of nations to self-determination (paragraphs 230-43). But these are, in fact, conflicting principles.

The problem this poses may be expressed by an imaginary example. Suppose that ‘Borduria’ is in possession of a block of territory - call it ‘Bled’ - acquired some years or centuries ago by conquest, which is inhabited mainly by ‘Syldavian’ speakers. Now the Syldavian speakers in Bled in a referendum vote overwhelmingly to leave Borduria and join ‘Syldavia’. Borduria responds by imposing martial law on Bled. Would Syldavia be justified to invade and annex Bled? On the basis of the principle that acquisition of territory by military force is inadmissible, the answer is clearly not. On the basis of the principle of self-determination it is equally clear that it is justified.

My fictional example is, of course, a variant of the numerous ‘irridentism’ problems of central Europe in the inter-war period resulting from the borders artificially created by the victorious powers via the treaties of Versailles and related treaties. The Palestine question is, in fact, one of these problems. As I wrote four weeks ago, in 1920-22 the League of Nations (meaning, in practice, Britain and France) partitioned the Ottoman vilayet of Syria¹⁵ into four parts, giving Britain and France ‘mandates’ to run these. The four parts are modern ‘Syria’ (to France, to be the Muslim part of the French mandate); ‘Lebanon’ (to France, to be the national home for Levantine Christians); ‘Transjordan’, modern Jordan (to Britain, to be the Muslim part of the British mandate); and ‘Palestine’ (to be the national homeland for the Jews).¹⁶

In 1920-21, at the exact same period, Britain partitioned the island of Ireland between the six counties of ‘Northern Ireland’, to be the national homeland for Ireland’s Protestants, and the 26 counties given to the ‘Irish Free state’ and expected to be Catholic - today’s republic of Ireland.

The age and the legitimacy of these two sets of border arrangements are identical. They both rest on nothing more than the power of the imperialists. The principle of self-determination implies that these borders should be overthrown. The principle against conquest implies that they should not.

Both the US interest and the inherent link of the Palestine question to the imperialists’ decision to partition Syria in 1920-22 mean that, as comrades from Matzpen argued in the 1960s-70s and comrade Moshé Machover has continued to argue, it is highly unlikely that there can be any solution within the boundaries of mandate Palestine imposed in 1920-22. But from this standpoint, relying on the ICJ opinion that the occupation is unlawful mainly because of the principle that “acquisition of territory by military conquest is inadmissible”, is to commit to these borders and hence to undermine the road to a real solution.

So we should use the opinion defensively, but not limit our arguments to those the ICJ has used.

1. The very extensive material in the case is collected at www.icj-cij.org/case/186.↩︎

2. Abraham was a senior French lawyer, administrator and judge, before he became an ICJ judge director of legal affairs at the French foreign ministry. Aurescu was closely involved in Romanian negotiations for military agreements with the USA. He was elected as an ICJ judge in November 2023, defeating the Russian candidate - the first time that Russia was unrepresented on the ICJ.↩︎

3. Tomka is something of a ‘Vicar of Bray’, having begun his career in the foreign ministry of the old Czechoslovak Socialist Republic and being promoted after 1989. He moved to the Slovak diplomatic service after the division of the country in 1992.↩︎

4. The court’s president, Nawaf Salam of Lebanon; Dalveer Bhandari of India; Leonardo Nemer Caldeira Brant of Brazil; Juan Manuel Gomez Robledo of Mexico; Dire Tladi of South Africa; Hanquin Xue of China; Abdulquawi Ahmen Yusuf of Somalia.↩︎

5. I should perhaps note that the role of academics as judges in public international law is very longstanding, going back to the ad hoc arbitration arrangements that existed for centuries before the creation of the ICJ. Sebutinde’s career is more that of an advocate than either an academic or a diplomat. Outline CVs of the judges are available at www.icj-cij.org/current-members.↩︎

6. time.com/7000495/un-court-says-israel-presence-palestinian-territories-illegal.↩︎

7. www.thejc.com/news/world/israels-settlement-regime-illegal-under-international-law-icj-judge-holds-sacl2f8h.↩︎

8. www.reuters.com/world/us-criticizes-icj-opinion-israeli-occupation-palestinian-territories-2024-07-20.↩︎

9. www.euractiv.com/section/global-europe/news/eu-backs-icj-ruling-on-illegal-israeli-occupation.↩︎

10. See the discussion in ‘Symbolic victory in The Hague’ Weekly Worker February 1 2024: weeklyworker.co.uk/worker/1476/symbolic-victory-in-the-hague.↩︎

11. This limitation concerns the legality of BDS, not its political advisability. I have written on the second issue twice, the second time modifying the first: ‘Boycotts and working class principle’ Weekly Worker October 11 2007 (weeklyworker.co.uk/worker/692/boycotts-and-working-class-principle); ‘No change of line’ Weekly Worker January 20 2022 (weeklyworker.co.uk/worker/1379/no-change-of-line).↩︎

12. ‘Defend and extend the jury system’ Weekly Worker November 23 2023 (weeklyworker.co.uk/worker/1468/defend-and-extend-the-jury-system).↩︎

13. morningstaronline.co.uk/article/settlers-launch-wave-attacks-after-uns-highest-court-rules-israel-must-end-colonisation-west.↩︎

14. socialistworker.co.uk/palestine-2023/israel-targets-yemen-in-bid-for-wider-middle-east-war. The current edition of The Socialist covers July 18-31, so does not feature the story; the AWL’s Western Solidarity, similarly, covers July 17-August 7.↩︎

15. Before it was an Ottoman vilayet, Syria was the Roman imperial diocese of Oriens; then the centre of the Umayyad Caliphate; then a province of the Abbasid Caliphate; then, after the crusades and before the Ottoman conquest, a vassal of Mamluk Egypt.↩︎

16. See ‘Minimum programme again’ Weekly Worker June 27: weeklyworker.co.uk/worker/1497/minimum-programme-again.↩︎