Barry Werner: The Profound consequences of the different interpretations of international law
Land is gained and lost during wars as the battlefront shifts. When the war ends, the peace treaty determines who will keep which land. Wars end with peace treaties.
Israel’s war with its Arab neighbors started the day Israel was established in 1948, and it isn’t over yet. It has been a very long war. Only Egypt and Jordan signed peace treaties.
The first phase of the long war is called Israel’s War of Independence. The Arab countries surrounding Israel murdered or expelled the Jews living in the West Bank and Gaza and illegally occupied those areas. A cease-fire in 1949 ended the War of Independence but didn’t end the long war. Each of the invading Arab countries said explicitly they were only signing temporary cease-fire agreements, not peace treaties, and they made it clear they would continue large-scale military confrontation when they were ready. They engaged in low-intensity terrorist warfare until 1967, when, as promised, they were about to resume their large-scale military operations. Israel blocked the intended invasion with a preemptive strike and took the West Bank and Gaza, ending 19 years of Jordanian and Egyptian occupation. That phase of the long war was called the Six-Day War. Almost 900,000 Arab Palestinians lived in the West Bank and Gaza at the time, and that population grew by natural increase to about 5 million today. The last major military confrontation of the long war was fought in 1973, called the Yom Kippur War. Egypt and Jordan signed peace treaties with Israel after the 1973 war.
Israel maintains that its borders are those of Mandatory Palestine, which includes the West Bank and Gaza. The land belongs to Israel until it cedes some part of it to another entity in a peace treaty.
Israel made generous offers to the Palestinians to exchange land for peace but without success. Israel generously allowed the Arabs who were living in East Jerusalem to remain legal resident aliens of the city if they chose to. And Israel built its settlements on its newly liberated land in areas where no Arabs were living so as not to obstruct peace negotiations in the future. But Israel will not allow a hostile terrorist state to be established on its land.
The International Court of Justice (ICJ) didn’t see it that way. According to the ICJ, the various large-scale military confrontations of Israel’s long war were all separate wars. The ICJ says Jordan and Egypt successfully prevented Israel from taking possession of the West Bank and Gaza because Israel was unable to establish or exercise its authority there when the War of Independence ended in 1949. So, the ICJ says, Israel “occupied” (in a legal sense) foreign land when it took the West Bank and Gaza during the second military confrontation, the Six-Day War of 1967, and the land Israel occupied is subject to the laws that apply when one country occupies the territory of another country. That initial ICJ ruling formed the legal precedent for all subsequent ICJ rulings.
The ICJ went further and into greater detail in its Advisory Opinion of 19 July 2024. The ICJ accused Israel of criminal behavior for establishing Israeli settlements in “Occupied Palestinian Territory (OPT),” confiscating some of the “Palestinian land” and natural resources, and depriving the Palestinians of the right to self-determination. The International Court of Justice (ICJ) said Israel’s continued presence as an occupying Power in the Occupied Palestinian Territories (OPT) has become illegal, even with regard to Israel’s security concerns. The ICJ obliges all countries and institutions in the world to make a distinction between Israel and the OPT it illegally occupies.
(It is interesting to read the dissenting opinions, especially that of the Vice-President of the ICJ, Julia Sebutinde. See “Summary of the Advisory Opinion of 19 July 2024” https://www.icj-cij.org/node/204176.)
Israel disputed the validity of the ICJ’s initial legal arguments in detail, saying the ICJ had seriously misapplied international law, but to no avail. Now, there are experts in international law who claim that so much time has passed that the ICJ decision has become established international law, whether right or wrong! As a result of the ICJ’s decisions, global support for Israel has been weakening.
Israel agrees the West Bank is disputed, which means that although Israel claims the land, Israel recognizes that the Palestinians claim it, too. Prominent legal experts, Jewish and non-Jewish, agree that if the land is disputed, Israel has the superior claim. Until proven otherwise, Israel believes it is not occupying foreign land.
There are profound consequences to these different interpretations of international law. Regardless of which interpretation is correct, just the fact that Israel and the ICJ disagree the way they do is functionally equivalent to either (1) the ICJ is trying to steal Israel’s biblical homeland and give it to the Palestinians or (2) Israel is trying to steal and colonize land that belongs to the Palestinians. That’s an explosive set of competing interpretations. It puts Israel at significant risk and promotes antisemitism around the world.
Consider the world’s political order. The ICJ says Israel is an outlaw, and Israel loses support around the world.
Consider the Palestinians. Islamists believe that land that had been conquered by the followers of Mohammed in the 7th century forever belongs exclusively to the Muslim People and that non-Muslims living in Muslim lands are probationary tolerated residents who must accept the status of being submissive to Muslims. The Palestinians demand the Al-Aqsa Mosque, which the early Arab Muslims had built over the ruins of the Jewish Temple in the 7th century. It was built on the holiest piece of land in the world for the Jewish People. The Palestinians demand all of East Jerusalem, which the Palestinians call Al-Quds, and want it to be the capital of their putative State of Palestine. It is biblical Jerusalem, the holiest city for the Jews. The Palestinians demand all of the West Bank, which is the biblical homeland of the Jewish People, called Judea and Samaria. The Palestinians demand all the land from the river to the sea, which means all the land the State of Israel is on. Except for the complete elimination of a UN member state, the ICJ supports all the Palestinians’ demands. As a result, the Palestinians feel they don’t need to compromise on anything. In negotiations with Israel, the Palestinians demand all or nothing and get nothing, and the Arab-Israeli conflict continues without resolution.
Consider the world’s political left wing. They accept the Palestinian claim that Israel is a colonial entity that stole the Palestinian’s land, and they believe colonialism is among capitalism’s worst evils. They generalize the colonial narrative to include all of Israel, declaring that anti-Zionism, even terrorism, is a virtuous form of anti-colonialism, not a form of antisemitism. They say that all Jews who support Israeli Zionist colonialism are evil, which means, in effect, that most Jews are evil. Zealous leftists become self-righteous vigilantes who attack Jews everywhere in the world.
Consider the world’s left-leaning mainstream media, which has a powerful effect on public opinion. They simplify the world into good and evil and present Israel as evil.
Consider Global Jihad. Promoting the dominance of Islam in the Arab-Israeli conflict dangerously energizes radical Islamists around the world, including in the countries the ICJ judges represent.
Consider the politically moderate Israelis. The West Bank isn’t just any land; it is the biblical homeland of the Jewish People. Even secular Zionists demanded to create their state in their homeland rather than in Uganda. Israel won’t allow the Palestinians to use Israel’s land to create a terror state devoted to Israel’s destruction. Israelis believe the ICJ is trying to take away the Jewish homeland with the stroke of a pen. Israel is fighting an existential war of survival, and the UN is siding with Israel’s enemies. Israelis have lost faith in the objectivity of the UN.
Consider the religious Zionists. For religious Jews, the West Bank contains extraordinarily holy sites. East Jerusalem is biblical Jerusalem, the holiest city for the Jews, and includes the site of the sacred temple. They adamantly refuse to give up the heartland of biblical Judaism, the land that God promised the Jews, the land for which they have been praying for 2,500 years, the land they believe is legally theirs. Israel’s demography is changing; more religious Jews than ever before live in Israel, and their proportion of Israeli society is growing.
The ICJ dealt a heavy blow to Israel. Where will this lead?
