The Settlements Gave Us the ICJ Decision

The International Court of Justice has released a long-anticipated advisory opinion regarding the status of Israel's occupation of the Palestinian territories. You can read all of the opinions here, but the top-line conclusion is that the occupation is at this point unlawful, because Israel's actions have made clear that it is not acting in the context of a military occupation at all -- it is acting as if to acquire the underlying territory as part of its own domain. And my overall conclusion is that, while the opinion sprawls and has wide implications, ultimately the vast majority of its conclusions can be laid at the feet of the settlement project. That's what gives the opinion its analytical force, the subject of the main "remedy", and that's what makes it not ultimately a matter of Israel's genuine self-defense and security interests.

To be sure, there is more to the opinion than just an indictment of the settlement project, or even the occupation-qua-occupation. Another aspect sure to get much commentary is the gesture at characterizing Israel's conduct in the West Bank as potentially apartheid -- the opinion was (it seems almost certainly intentionally) ambiguous on this point, and amongst the concurrences one sees both "yes, that's absolutely what it's saying" and "no, we're definitely not saying that". There's also the question of how to apply the ruling to the Gaza Strip -- while nominally covering all of the Palestinian territories, the opinion is primarily focused on the situation in the West Bank, recognizing that Gaza is a different and more complex circumstance for a host of reasons, ranging from Israel's withdrawal in 2005 to the current ongoing war. For the most part, the opinion largely accepts that different analysis will need to be applied there, and so it's fair to bracket that off.

Still, even "just" talking about the illegality of the occupation of the West Bank, the ruling is bombshell enough. Ultimately, the opinion reflects an essential and oft-misunderstood attribute of Israel's relationship with the Palestinian territories: while pro-Israel commentators often treat the language of "occupation" as delegitimizing Israel's activities (cf. Bibi's response to the ruling: "The Jewish people are not conquerors in their own land"), in reality occupation is the most plausible justification for Israel's activities in the Palestinian territories. When one is in the midst of military hostilities with another power, one is allowed to have a military presence on their territory, and one is allowed to impose not infinite but substantial restrictions on the local civilian population to account for security necessities, and one is certainly not required to give the civilian nationals of the opposing power citizenship in your country.

But those prerogatives are predicated on the occupation not being permanent; it is not a claim of permanent jurisdictional right over the underlying territory, it is a temporary state of affairs tied to ongoing hostilities with another power. The ruling of the ICJ can be summarized as a conclusion that Israel is no longer acting as if that was the case. The settlement enterprise, in particular, is the smoking gun evidence here: it is not only clearly impermissible under the law of occupation, but it has nothing to do with effectuating military security in the context of an ongoing state of belligerency and everything to do with acting as if the territories in question are part of Israel's normal domestic territory -- the settlers are, in most every respect, treated identically as if they were Israeli citizens in Tel Aviv. Through the settlements, Israel is taking actions that are fundamentally at odds with it treating the West Bank as being under a temporary occupation, and so it cannot claim the protections international law accords to occupying powers to take actions that otherwise would be obvious breaches of principles of sovereignty and Palestinian self-determination.

For my part, I've only had the opportunity to quickly skim the various opinions, and I'm not an international law expert. There were a cluster of judges who sought to distinguish in various ways between the illegality of Israel's conduct in the West Bank (which they find conclusively established) and the inherent illegality of Israel's presence in the West Bank (which they would not reach), and on my quick read they make a valid distinction. The idea, in essence, is that while it is clear enough that what Israel is actually doing in the West Bank cannot be justified via the security framework of a belligerent occupation (indeed, it openly defies this framework) -- the settlement enterprise being the obvious example -- this doesn't mean that it's impossible in concept for Israel to do things in the Palestinian territories that would be consistent with a genuine military occupation. Israel and Palestine are still in a state of belligerency, and in such a context there likely will be causes where actions could be justified under the framework of a (genuine) military occupation. This probably has more salience in Gaza than in the West Bank, and it further ratifies a point I've made earlier -- that as horrible as the happenings are in Gaza, the West Bank if anything represents an easier case of Israeli injustice: the former at least nominally can be fitted into the framework of a military confrontation subject to a national right of self-defense, the latter appears to be a pure unadulterated land grab.

But it's worth emphasizing how little this matters. Several judges chastised the majority for not paying due heed to Israel's genuine security concerns. It's a fair shot, but the payoff is that even being attentive to these concerns would not actually change much (as evidenced by the fact that even the aforementioned "cluster" of judges ended up agreeing with the majority on all or nearly all substantive points). One can wholeheartedly agree that Israel has valid self-defense rights that are operative in the Palestinian territories, and nonetheless conclude "but there are a host of Israeli actions in the West Bank that have nothing to do with security; it's about taking over territory" (indeed, the fact that recognizing the security concerns would have been more or less "free" does, arguably, validate the Israeli suspicion that the ICJ majority genuinely doesn't care about them -- they do not downplay Israel's security needs as a necessary component of their legal analysis, but rather wholly gratuitously).

Once again, the settlements are central to the point: one can wholeheartedly acknowledge that Israel has a raft of genuine security concerns vis-a-vis the Palestinian territories, and still easily come to the conclusion that the settlements evidence an orientation towards those territories that is acquisitive in character. After all, does anyone truly believe that the settlements are a security measure, as opposed to what they manifestly appear to be on face: an effort to establish Israeli civilian control over new swaths of territory? Once in a blue moon one hears the argument (something about setting a "buffer"), but any jurist would be fully justified in dismissing it as specious; and in any event it is a tactic decisively forbidden by the international legal framework that recognizes many other ways in which an occupying power can entrench its security (just not via the transfer of its civilian population into the occupied territory).

Over and over again, we return to the same point: it's all about the settlements. It is the settlements that show Israel doesn't view its occupation as temporary; it is the settlements that demonstrate the unequal treatment of the two civilian populations that reside in the Palestinian territories; it is the settlements that falsify the notion that the deprivation of Palestine's self-determination rights is solely attributable to the regrettable necessities of ongoing military belligerency. The settlements are the problem. Saying that doesn't make figuring out what to do about them any clearer -- if anything, the deep ties the settlement enterprise has to the "regular" Israeli state only accentuates the magnitude of the crisis -- but nonetheless: the settlements are what makes this entire machine run. I don't know what the Israeli/Palestinian conflict would look like if there were no settlements, but it would look different and would and should be treated differently under international law.

There are many facets of the Israeli/Palestinian conflict which are "complicated", which raise difficult questions of security versus self-determination, where compelling but seemingly irreconcilable national narratives stand at an impasse. But the settlements are simple. They are not annexes of a military occupation, justified by an ongoing state of belligerency. They are an attempt by Israel to exercise permanent control over territories it acquired by force, in defiance of clear international legal rules that prohibit exactly that. One can quibble around the edges of bits and pieces of the ICJ's ruling. But the core conclusion that the settlement project is not part of a military belligerency but an effort by Israel to establish indefinite control over Palestinian territories under a separate and unequal legal regime is to my mind impossible to gainsay.

The ICJ's decision is a bitter pill for many friends of Israel to swallow. But if there is one bit of solace they can take, it lies once again in recognizing the true significance of occupation -- it presupposes two states, both of which have unquestionable legitimacy and a right to exist in their own sphere, neither of which has the right to displace the other. Israel has no right to settlements in Palestinian territories, but Israel in its pre-1967 borders is neither a settlement nor a colony: it is a validated member of the community of nations, whose existence is exactly as sacrosanct as any other country, Palestine included. In his separate opinion, ICJ President Nawaf Salam observed this reciprocity: the entirety of the international legal framework which governs this opinion, including the notion that Palestine is being unlawfully occupied by Israel, is based on the original UN partition resolution in 1948 which "provided for the creation of two independent states on the territory of Palestine, one Arab and the other Jewish."

It was on the basis of [this] resolution ... that both Israel and Palestine proclaimed their existence.... This resolution forms a whole, whose terms must be read together and inseparably. In other words, neither Israel nor Palestine can claim to derive rights from the resolution while rejecting or ignoring the rights of the other party enshrined in the same text.

Emphasis added. The same commitment to self-determination that validated the creation of a Jewish state in Israel demands acknowledgment of the Palestinians' right to their own state. And vice versa. Those who indulge in nightmarish fantasies of the expulsion and extirpation of Israel-qua-Israel, who see the entirety of Israel as an "occupation" and the entirety of the land as Palestinian by right, are not implementing today's decision, they are flouting it.

The ICJ's opinion is a historic victory for the cause of Palestinian independence. But -- or, in my preference, and -- it continues to insist that the legal grounding for both Palestinian and Israeli liberation depends on, and cannot be separated from, parallel recognition of the other. In this critical -- albeit sure to be overlooked point -- the ICJ's decision is emphatic and unimpeachable in holding that freeing Palestine not only need not, but must not, take the form of replacing, displacing, or otherwise eliminating the state of Israel.