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ISRAEL’S DISASTER FORETOLD  
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Gershom Gorenberg
August 6, 2024
The Atlantic
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_ The ICJ’s opinion on the West Bank is devastating, and it isn’t
wrong. _

, Paolo Pellegrin / Magnum

 

You can’t say Israel wasn’t warned.

On June 19, 1967, a week after the Six-Day War, the Israeli cabinet
met to discuss the future of the territories that Israel had just
occupied. One proposal was to permanently keep the West Bank and give
its Palestinian residents local autonomy—but not citizenship.
Justice Minister Yaakov Shimshon Shapira responded that in “an era
of decolonization,” the idea was absurd.

“Every progressive person will rise against us and say … ‘They
want to turn the West Bank, inhabited by Arabs, into a colony,’”
he said.

Three months later, Israeli Prime Minister Levi Eshkol was preparing
to green-light the first Israeli settlement in the West Bank. A top
aide checked with the Foreign Ministry’s legal adviser, Theodor
Meron, about the legality of the move.

“My conclusion,” Meron answered in a top-secret memo, “is that
civilian settlement in the administered [occupied] territories
contravenes explicit provisions of the Fourth Geneva Convention.” In
other words, it was illegal.

Meron, who’d go on to become one of the world’s leading
authorities on the laws of war, cited the last paragraph of Article 49
of the convention: “The Occupying Power shall not deport or transfer
parts of its own civilian population into the territory it
occupies.”

Fast-forward to this summer. At The Hague, the president of the
International Court of Justice, Nawaf Salam, read out the tribunal’s
opinion on the legality of the Israeli occupation on a Friday
afternoon—timing that guaranteed minimal coverage, because
journalists would already be leaning into the weekend. He spoke in the
rhythmic monotone peculiar to judges declaiming long printed
judgments, but his words were dramatic—indeed, scathing.

The ICJ had concluded that Israel, behind the facade of a temporary
occupation, has developed permanent control of the West Bank, East
Jerusalem, and the Gaza Strip. The settlements are one part of that
metamorphosis. Therefore, Israel has violated the post–World War II
ban on acquiring territory by force, and it has “frustrated the
right of the Palestinian people to self-determination.”

And so, “Israel’s presence in the Occupied Palestinian Territory
[is] unlawful” and should end. Other countries must avoid
recognizing Israeli annexation of any territory taken in 1967,
including East Jerusalem.

As an Israeli, I am devastated by the indictment of 57 years of my
country’s policy and actions in the occupied territories. As someone
who has reported extensively on those actions, I also know that the
opinion is almost entirely on target.

The opinion is advisory and not binding. It does not obligate Israel
or any other country to act. A United Nations Security Council
decision based on the ruling would be necessary for that. Yet it’s a
watershed. That Israel is breaking the law is now the position of the
highest tribunal for international disputes. The ruling could spur
individual countries, including traditional allies of Israel, to take
actions, such as imposing newer and wider sanctions against individual
settlers, settlement organizations, and even Israeli-government
officials. Britain is reportedly
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ending some arms sales to Israel because of the ICJ opinion.

Note that despite the timing, the opinion isn’t connected to the
current war in Gaza, and the court did not regard its mandate as
covering the aftermath of October 7. That is because the ICJ was
responding to a request by the UN General Assembly in December 2022.
Gaza is mentioned because Israel continued to exercise some authority
over that territory after its 2005 withdrawal—for instance, by
controlling Gaza’s airspace and offshore waters.

More important: Gaza shows up in the 83-page opinion because the ICJ
defines the West Bank, East Jerusalem, and Gaza as a single
territory—and as the realm in which Palestinians have the right to
self-determination. Given the tide of recent anti-Israel activism in
the West, this point is worth stressing: The ICJ opinion takes the
legitimacy of Israel within its pre-1967 borders as a given. It
provides no sustenance to those who regard all Israelis as settlers,
or who call for a Palestinian state “from the river to the sea.”

Explicitly, the court affirms that recognizing a Palestinian
state _next to_ Israel is the way to end the conflict. An Israeli
government eager to reach a two-state agreement—a government utterly
different from the current one, in other words—could find at least a
few sparks of light in the opinion.

The key to the ICJ’s logic is this: Military occupation of land
beyond one’s borders can be legal if it is a military necessity. But
it is supposed to be temporary. Under post–World War II
international law, you are not allowed to annex your conquests. The
occupier must administer the territory for the benefit of the local
population.

_Temporary_, however, is an undefined, slippery term.

Imagine an alternative world, in which Israel conquered the West Bank
and Gaza in 1967—and then heeded those early warnings. It left local
laws in place, didn’t settle Israelis on occupied land, and treated
the 1949 Fourth Geneva Convention as holy writ. Let’s say that
Israel tried to reach peace with the Palestinians, but an agreement
never came together—over the refugee issue, or access to holy
places, or security arrangements, or Palestinian cold feet about
ending the conflict. Fifty-seven years later, Israel could still be a
legal occupier.

We don’t live in that world. Though the court does not mention this,
actual history diverged from that scenario on the first night after
the cease-fire in 1967. An Israeli lieutenant colonel oversaw the
bulldozing of the Arab neighborhood next to the Western Wall in
Jerusalem’s Old City, to create space for crowds next to the Jewish
holy site. In those first postwar hours, Israel seized real estate in
occupied land for its own use and forcibly displaced residents. Both
actions were violations of international law that the ICJ does
describe in more general terms.

Within three weeks, the Knesset passed laws allowing the government to
expand the city limits of Israeli Jerusalem to encompass the Old City
and an additional swath of occupied land—and to extend Israeli law
to those areas. In the hope of reducing international objections,
Israel insisted that this wasn’t annexation, just a local municipal
change. But as the ICJ points out, the Geneva Convention forbids
changing local laws and institutions in occupied territory. And the
Knesset’s passage of a 1980 law formally declaring the “united,
complete” city to be Israel’s capital made annexation
explicit—and removed any remaining ruse of temporary occupation in
East Jerusalem.

Despite Theodor Meron’s warning, the first civilian settlement in
the West Bank was established in September 1967 in what was known as
the Etzion Bloc, between Bethlehem and Hebron. The Etzion Bloc had
been the site of four kibbutzim, which were conquered by
Trans-Jordanian and local Arab forces on the eve of Israel’s
establishment, in May 1948; in his memo, Meron wrote that establishing
a settlement there would nonetheless be seen internationally as
violating the Fourth Geneva Convention. So this move, too, involved a
pretense. “As a ‘cover’ for the purposes of the diplomatic
struggle,” says a long-classified Israel Defense Forces document,
the settlement was identified as a military outpost—permissible for
an occupying power. In fact, the memo confirms, the settlement had no
connection to the army.

As the number of settlements grew and maintaining the “cover”
became impossible, the government switched tactics. It relied on the
arguments of two
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jurists [[link removed]], who said that the
Fourth Geneva Convention did not apply to the West Bank. That claim
gained almost no support from legal experts abroad.

Meanwhile, the West Bank remained under the direct rule of the IDF,
subject to a mix of the pre-1967 legal system and Israeli military
laws. The right-wing Likud party took power in 1977 and stepped up
settlement building. Government financial incentives drew Israelis to
new suburbs in occupied territory—but what laws would apply to them
there? Military orders in 1979 enabled the commander of the West Bank
to set up Israeli-style local governments for settlements, where
Israeli laws would apply solely within the municipal limits.

The 1995 Oslo Accords with the Palestinians were supposed to lead to a
final status agreement that would decide the fate of the settlements.
After Oslo, the Israeli government stepped up road-building to
settlements, so that settlers could avoid driving through towns now
administered by the new Palestinian Authority. No final-status
agreement was ever reached, and the web of roads kept growing. Today,
the roads serve to ease the commute to settlements.

An illustration: My home in West Jerusalem is near a main
thoroughfare. Less than a mile to the south, at a spot marked neither
on official maps nor on the road itself, it crosses the pre-1967
border. Take a quick right and then a left at a pair of traffic
lights, and you’ll be on a highway that passes through two tunnels
through the mountains to take you to the Etzion Bloc of settlements.
Settlers living there vote in Israeli elections, are covered by
Israeli national health insurance, and in nearly every respect live as
if they were inside Israel. None of that applies to Palestinian
communities near the same highway.

So when the ICJ opinion states that “for all intents and
purposes,” Israeli has annexed parts of the West Bank “while
hiding behind a fiction” of temporary occupation, it is describing
the uncomfortable truth.

Prime Minister Benjamin Netanyahu’s current government makes very
little effort to maintain that fiction. The ruling coalition depends
on two far-right parties, both led by settlers. One of those leaders,
the Religious Zionist Party’s Bezalel Smotrich, has a double
portfolio, as finance minister and as a minister within the Defense
Ministry. In the latter role, he was given control
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planning and construction in the West Bank. Those powers previously
belonged to the military. Handing them to a civilian dispensed with
the cover of military occupation—bringing Israel closer, as the ICJ
points out, to asserting explicit sovereignty in the West Bank, which
is to say, permanent control.

_Permanent_ is also a slippery term. The ICJ’s operative
conclusions are that virtually everything Israel has done—its
settlements, its legislation, its expropriations, and more—should be
treated as impermanent and reversible. Some of this is doable, albeit
only by an utterly different Israeli government. To start, the court
says, “Israel must immediately cease all new settlement activity.”
But then it goes on to say that Israel should evacuate “all existing
settlements,” which is less persuasive, and less likely.

Previous rounds of Israeli-Palestinian negotiations, even if
unsuccessful, developed the idea of land swaps: Israel would retain
some large settlements close to the pre-1967 border and cede some of
its own sovereign territory to the new Palestinian state in exchange.
The simple reason to pursue this is that it would make a two-state
agreement easier to reach and carry out.

The headline finding in the ICJ opinion is that Israel must “end its
presence” in occupied territory “as rapidly as possible.” This
sounds logical and attractive: I’d like to see the occupation end
tonight, if it could happen safely. But as a dissent by three of the
court’s judges argues, a reality outside the frame of the majority
opinion complicates such demands: By any measure, Israel “faces
serious security threats.”

Ahmed Fouad Alkhatib: Israel killed my family, but not my hope
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Put differently, the court’s majority is treating the West Bank and
Gaza as a colony that Israel should simply give up. But unlike France
and Algeria, or Portugal and Mozambique, Israel and the occupied
Palestinian territories border each other—and within those
territories are armed and popular Palestinian groups that lay claim to
all of Israel. Hamas has shown no sign that it would give up that
claim and lay down its arms if Israel would just unilaterally leave
both Gaza and the West Bank. Building a Palestinian state capable of
living peacefully next to Israel requires Palestinian political
change, which in turn requires a level of international and especially
American involvement that has been lacking in recent years. It
requires not just Palestinian willingness to sign off on the end of
the conflict, but also a Palestinian government ready and able to
disarm all armed groups within its borders. It may require foreign
peacekeeping forces, like those deployed in the Sinai after the
Egyptian-Israeli peace agreement. These are not developments likely to
happen overnight.

The Israeli government, predictably, rejected the opinion. The Jewish
nation “is not an occupier in its homeland,” a cabinet
resolution proclaimed
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the surface, this statement seemed to brush off the legal case. But it
subtly pointed to the need for an international legal framework.

Almost the entire stretch of land extending from the Baltic Sea to the
Red Sea belonged to empires until the late 19th century. The crumbling
of the empires, and then their collapse during World War I, led to the
creation of nation-states, based on the principle
of self-determination
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historic lands of the nationalities overlap, like the circles of a
Venn diagram. Hungary can claim that part of its homeland is now in
Romania; Turkey and Greece could each claim part of the other’s
territory on historic grounds. And Jews and Palestinians can each
rightfully claim the same narrow land as their own.

By itself, self-determination is a formula for unending war. The ban
on acquiring territory by force is meant to prevent this. It bars
Israel from annexing the West Bank and Gaza. For the same reason,
Palestinian self-determination must be limited to those territories.

The ICJ opinion describes 57 years of a disastrous Israeli policy.
Ultimately, it could help bring about positive change—by pushing
other countries to reengage with the effort to bring Israelis and
Palestinians to a two-state agreement, or by serving as a warning to
Israel to reverse course. For the moment, however, the ruling is just
one more reminder that Israel needs a government capable of hearing
that warning at last.

* Israeli settlements
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* Palestinian territories
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* Palestinian rights
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* ICJ
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