The court ignored Israel’s historical and legal claims to the disputed territories.

By Shlomo Levin, JNS

On July 19, the International Court of Justice (ICJ) released its long-awaited advisory opinion on what the United Nations General Assembly calls, “The ongoing violation by Israel of the Palestinians’ right to self-determination and the prolonged occupation.”

The decision is an 80-page condemnation of Israel, accompanied by a confusing web of 14 separate opinions, declarations and dissents produced by the 15 judges. You can read it here.

The main decision lists many ways in which Israel’s policies in the disputed territories violate Palestinian rights. These include discrimination in housing, the illegal taking of land, unnecessary restrictions on movement and more. If the ICJ opinion had stopped there, it would have made a clear and compelling case that Israel has committed wrongs that must be righted.

Instead, the opinion goes on to make an enormous leap of logic and conclude that because of these violations, Israel’s very presence in all of Gaza, Judea, Samaria and eastern Jerusalem has somehow become illegal. There is no explanation of what this means, likely because the judges couldn’t agree on an explanation.

In fact, this was one of the main points of dissent. Three judges (Peter Tomka, Ronny Abraham and Bogdan Aurescu) wrote separately that they agree Israel is violating many Palestinian rights in the disputed territories, but the proper conclusion is simply that Israel should remedy those violations.

The legality of Israel’s presence in the territories can only be evaluated by going back to how it began in the 1967 Six-Day War, which the ICJ did not do.

In their individual declarations, judges in the majority give different explanations for their reasoning. The main point was that while International Law understands that occupation of enemy territory may occur in wartime and cannot be forbidden, this is with the understanding that occupation must be short-term and should end soon after the war is finished. As the current situation has been in place since 1967, it can no longer be considered a direct consequence of the Six-Day War but has morphed into an illegal acquisition of territory.

There are many good reasons to dispute this. Most important, Israel has participated in numerous negotiations and peace processes over the years aimed at resolving the final status of the territories and Israel cannot be held solely responsible for their failure.

While Israel may have an international legal obligation to negotiate in good faith to withdraw its troops from disputed territory and allow Palestinians to exercise their right of self-determination, the other side also has to make a good-faith effort to negotiate a way for this to happen that safeguards Israel’s security and resolves the numerous practical difficulties involved. The ICJ decision baselessly makes it seem like the protracted political stalemate is all Israel’s fault.

The opinion also makes little to no mention of Israel’s security concerns. In fact, some of the judges write in their dissenting declarations that they believe Israel’s security should have been given more weight.

On the other hand, Judge Dire Tladi of South Africa, in his particularly strident anti-Israel opinion, justifies ignoring Israel’s security by saying that all nations have security concerns of one sort or another but they cannot be used to justify violations of international law. In a thinly veiled reference, he asks rhetorically whether Russian security concerns regarding Ukraine potentially joining NATO could possibly justify its invasion.

But this comparison is far off the mark. Particularly after Oct. 7, no one can deny the risk that any territory from which Israel withdraws would immediately be taken over by Palestinian terrorists devoted to its destruction. Israel’s security concerns are not grounded in abstract, geopolitical calculations like Russia’s or most other nations. Instead, Israel is confronted with constant, ongoing violence and explicit threats of more violence.

The ICJ’s majority opinion also gives no weight to Israel’s historic and legal claims to many parts of the territory that the court considers occupied—such as Gush Etzion, from which Jews were expelled in 1948, and the Old City of Jerusalem. The opinion dismisses this in a few sentences, merely saying that it isn’t going to judge historical matters and historical claims cannot justify the acquisition of territory by force.

Why, then, should there be any legal weight to the Arab conquest of these places during Israel’s 1948 War of Independence? In their decision, the judges actually are deciding historical claims in favor of the Palestinians and legitimizing territorial conquest carried out by Arab armies. The majority only objects to the acquisition of territory by force when, in the context of defending itself, Israel managed to take these areas back.

In her strident dissent, Judge Julia Sebutinde of Uganda stated that the majority omitted the historical backdrop that is crucial to understanding the conflict and that their opinion was a one-sided audit of Israel that does not reflect a comprehensive, balanced or impartial examination of the questions involved. In her view, the ICJ should have declined to give any opinion at all. Instead, it should have encouraged Israel and the Palestinians to resume negotiations to find a lasting solution to their conflict.

Several other judges joined with Sebutinde in expressing the fear that this