The International Court of Justice’s ruling last week against Israel is just the latest sign of the growing public pressure the country faces amid its ongoing war on Gaza.
But the case predated the war – a result of a 2022 request from the United Nations General Assembly for the court to provide an opinion on the continued occupation of Palestinian territory.
The ICJ firmly came down against Israel in the opinion issued on Friday, calling the occupation unlawful and declaring that building settlements in the occupied West Bank and occupied East Jerusalem was unlawful. It rejected any argument that Israel has sovereignty over the territories, despite its claims. The president of the court also said that Israel’s laws in the occupied territories were “tantamount to the crime of apartheid”.
The Palestinian Authority was delighted with the court’s opinion, with Palestinian Foreign Minister Riad Malki calling it “a watershed moment for Palestine”. As expected, Israel has rejected the decision, calling it “false”.
But if it is so momentous, what can be expected to come next?
The ICJ’s ruling is an “advisory opinion” – it is not binding. As the initial request for an opinion was issued by the UN General Assembly, the question will now return to the body, which will “decide how to proceed in the matter”, confirmed Farhan Haq, the UN Secretary-General’s deputy spokesperson.
The resolutions the General Assembly passes are not binding, but they still carry weight, coming from a body that represents all member states.
And although the General Assembly does not have the power to expel a UN member state without approval from the UN Security Council, it does have the ability to suspend its rights and privileges, meaning that the state would not be able to participate in the sessions of the General Assembly and other UN bodies.
This was notably what happened in 1974, when member states voted to suspend the participation of apartheid South Africa, over the objections of the United States, the United Kingdom and France, helping to turn the apartheid regime in South Africa into a pariah state, despite Western objections.
Hassan Ben Imran, a Law for Palestine board member, argues that – with the UN Security Council “compromised and paralysed” as a result of US veto power – the General Assembly should take the lead.
“Israel has given us no reason to assume it’d respect [ICJ] rulings, in fact, its top leaders did publicly say so,” said Ben Imran. “Therefore the only way forward is political, economic and military sanctions through the UN General Assembly … Just like apartheid South Africa, Israel should be suspended, or unseated, from the UN, FIFA, the Olympics and other fora. The UN General Assembly may initiate this line of action.”
Omar H Rahman, a fellow at the Middle East Council on Global Affairs, told Al Jazeera that the ICJ’s ruling “provides the Palestinians and their supporters a potentially powerful tool for mobilising the international community to pressure Israel”.
Israeli isolation
With Israel facing a separate genocide case brought forward by South Africa at the ICJ, and the application for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant at the International Criminal Court, the Israelis face growing legal trouble.
The ICJ decision last week on Israel’s presence in the occupied territories only adds to the likelihood that Israel will lose in those cases, too.
Mai El-Sadany, the executive director of the Tahrir Institute for Middle East Policy, said that the ICJ decision will have consequences.
“The world’s highest court establishes clearly the illegality of Israel’s occupation and its settlement policy and practices; describes the situation as racial segregation and apartheid; and highlights the obligation of other states not to aid or assist in maintaining Israel’s presence in the OPT [occupied Palestinian territories],” El-Sadany said. “In doing so, it lays out facts and conclusions that can then be used by diplomats in their negotiations, that can be leveraged by states in their bilateral relations, that can be reported on and used by journalists covering the issue, and that can be used by lawyers and advocates in additional litigation and civil society work.”
El-Sadany added that the ICJ’s confirmation that it considered Gaza to be part of the Israeli-occupied Palestinian territories may impact the separate genocide case, as occupying powers have “obligations and duties” to the people who live on land they occupy. Ben Imran argued that it “ended the legal debate over whether Israel, the occupying power, was entitled to claim the right of self-defence against attacks emanating from a territory it occupies”. With the ruling that the Palestinian territories are unlawfully occupied, Ben Imran believes Israel can no longer use the self-defence claim.
Annexation
Israel has doubled down on its position, refusing to give up on East Jerusalem and the West Bank.
“The Jewish people are not conquerors in their own land,” Netanyahu said, adding that the “legality of Israeli settlement in all the territories of our homeland cannot be contested”. Other far-right politicians called for the annexation of the West Bank, and even before the ICJ decision, the Israeli parliament overwhelmingly rejected the creation of a Palestinian state.
There has long been a fear that Israel may eventually go ahead and annex the occupied West Bank, as it has done with occupied East Jerusalem and the occupied Golan Heights.
The latter action was recognised by the former – and possibly forthcoming – US president, Donald Trump, and it may be that the Israeli government is now banking on a new Trump administration giving it the cover to annex the West Bank, intensify its destruction of Gaza and ignore the international pressure to give the Palestinians their rights.
Rahman doesn’t believe the ICJ decision makes the annexation of the West Bank any more likely, but sees it as a continuation of “decades of purposeful policy on the part of Israel to establish the conditions on the ground for annexation”.
“While the ICJ ruling should make them think twice about whether the international community will accept [annexation], the consequences in terms of establishing apartheid rule were always the same,” he said.
Israel’s fortress mentality, and its attempts to discredit the ICJ and other critical international bodies, mean that it will likely continue on its current path, at least in the short term.
It has previously ignored a 2004 ICJ ruling that the separation wall it has built – much of it on Palestinian land – is illegal.
That raises doubts over whether the ICJ and international human rights law have any power at all when it comes to Israel and Palestine, although Ben Imran points out that is a problem with countries not implementing the law, and behaving like they are above it.
As more countries choose to support the rule of law when it comes to the occupation, that pressure may eventually reach a point where Israel, and its backers, buckle.
“Even some of Israel’s closest allies, including the US, have recognised parts of the advisory opinion, particularly on the illegality of the settlement policy,” said El-Sadany. “The majority of countries across the world agree with the ICJ’s advisory opinion. It will take collective, coordinated action and a multipronged long-term strategy on the majority’s part to keep the momentum produced by the case to make a material change on the ground, but the potential for that change is there.”
