The ICJ Ruling

And why it will hurt Zionists for decades to come.

[Note: This is the transcript of my introduction to a video I made on this subject. The video contains an additional textual analysis of the ICJ verdict.]

The International Court of Justice just delivered another land-mark ruling concerning Israel’s illegal occupation of Palestine that, judging from Netanyahu’s furious reaction, must really hurt. So, let’s have a look at this. But before going into the ruling of the International Court of Justice (or the ICJ as I will call it from here on), let’s make it clear what we are dealing with here.

Just an Opinion?

While this is a highly significant decision that had to be duly voted on by all the court’s 15 judges, it is not an enforceable judgment over a concrete case brought to the ICJ by a UN member, like the South Africa case against Israel. There is no “guilty” verdict or punishment attached to this one. What the court produced was a so-called “advisory opinion” on a legal matter which the UN General Assembly asked it to produce.

Why did the Assembly do this? Well, advisory opinions from the ICJ are the most authoritative interpretations of international law that you can get. It means the court’s 15 lawyers and their teams studied a certain legal question for months and years and then deliver a judgment in the sense of a “super expert opinion” on the matter.

In the practice of international law, these opinions then become “sources of law,” which itself can serve several purposes

1.    They can be the basis for future verdicts on concrete questions if members decide to drag each other to the court.

2.    They can inform UN members at the General Assembly and the Security council of what the law actually says, which makes it easier to argue for or against resolutions that might be proposed. Which is something we can expect to happen in this case. The General Assembly will certainly in the future create resolutions that will be based on this verdict.

The Nature of International Law

The second thing to note is that while Israel forcefully “rejects” the ruling and certainly won’t adjust its behavior. This is a big set-back for the Zionist project.

You see, International Law is not like domestic law. It’s not enforceable the way that domestic law is. It also doesn’t come about the same way as domestic law. Domestic law is made (usually) by legislative bodies, (usually) called parliaments. They are more or less concrete rules which are then used by the state machine to structure social live inside a country.

International Law doesn’t work like that, because there is no world parliament with the same force over everyone. The UN General Assembly might look a bit like a parliament but it really isn’t the same kind of institution. International Law represents first and foremost the “general collective will” of the international community as expressed through treaties, declarations, custom, and—expert opinions.

So what this verdict signifies is another instant of “the world” not recognizing Israel’s claims over Palestinian lands. Of course Israel is angry now and says, literally, “The people of Israel are not occupiers in their own land and in their eternal capital, Jerusalem” — this is actually a quite useful statement, because exactly this is the core of the issue. The verdict means that the world does not recognize precisely this claim, namely that Israel, by virtue of Jews having lived in these lands 2000 years ago, derives some magical historical rights over the land. This is not a concept of international law and won’t be one. And Israel is furious about not being able to impose its will here.

The Problem for Zionism

This is a very big problem Zionism, since Israel’s entire political strategy is to just create facts on the ground. Israel’s idea ever since its establishment in 1948 has been to just ignore international law, do things that are clearly considered crimes under that law, just take the land, replace the people who are living there, and, over time, let that become a fact of international live.

This is not even a new strategy as this is exactly how all successful settler colonial states were created. New people from Europe eradicated native populations, set up their own states and those became members of the international community by virtue of all other states at the time recognizing them. You see, recognition by other states is really the core of how international law works.

International Law is the will of the world, so if the world loses the will to oppose Israel and actually recognizes its claims, then those claims will become “legal” in the sense of being recognized by the international community. Past actions will always remain illegal under past IL, but for the future they will become recognized and the illegality of them will seize.

And since this is the strategy, Israel “wins” every time states move toward recognizing its claims—like when Donald Trump decided to recognize the Golan Heights, which legally belong to Syria as parts of Israel—and Isreal “loses” every time someone does the opposite. And this verdict here is very much a case of the opposite. It enshrines yet again in the books of current international law that what Isreal is doing is in fact still illegal and will remain so for the foreseeable future. The great majority of the world does not share Isreal’s interpretation of its rights.

This is where also the “weight” of the verdict matters since it was voted on by 15 judges and all of the questions the court ruled over where voted on individually and were recognized by at least 11 of the judges, some questions by even more. This means of course that most questions are not a matter of uncertain law or of differences in nuance. It is a very clear verdict.

Now, let’s look at what the court enshrined in current international law.