ICJ Opinion on Occupation: Must Israel Give Back the West Bank?

In late December, the United Nations General Assembly asked the International Court of Justice (ICJ) for an opinion on the legality of Israel’s occupation of the West Bank. This report could lead to a sharp condemnation of Israel and “have some negative effects on the country,” says Israeli lawyer Ori Beeri in an interview with ntv.de. Not only would Israel’s reputation be damaged in the international community, the report would also be a victory for the BDS movement.

ntv.de: In the 1967 Six Day War, Israel conquered the West Bank from Jordan and has occupied it ever since. Is this occupation illegal under international law?

Ori Beeri: In international law, it is defined as a factual situation in which a state occupies the territory of another state and exercises effective control there. In our case, Israel has a number of obligations, such as observing human rights, which it must respect. But there is no clear indication of the legality or illegality of the occupation itself, as its legal status – full annexation or even joint rule – is still up in the air, according to Israel.

Isn’t a state obliged to return conquered territory?

According to occupation law, there is no clear definition of its duration. It can be a year or a hundred years. But since World War II – and before that – states have not been allowed to take territory by force. That means even if they captured it in war, they are not allowed to exercise sovereignty there.

What does this mean for Israel?

In this case, there is a need to negotiate the sovereignty of the territory and decide on it in the future. The Israeli government claims there is no occupation in the West Bank because it is a disputed territory. Officially, this is explained by the fact that this area was previously not legally part of Jordan, as the kingdom annexed it in 1950 – a year after the end of Israel’s War of Independence – and this was only recognized by Britain, Pakistan, Iraq and the USA. Since Jordan also gave up its claims to the West Bank in 1988, Israel says the territory’s sovereignty is in limbo and would have to be decided in future negotiations with the Palestinians.

Which states were the decisive factor in appealing to the court in The Hague?

For about twenty years, the Palestinians have been trying to internationalize the Middle East conflict, especially in legal terms. Together with some Arab states they were the decisive factor. Incidentally, this is not the first time that you have asked the ICJ for advice or an opinion. There was already a statement from The Hague in 2004 about the Israeli barrier in the West Bank.

But there are other efforts to bring the Jewish state to the dock. For example, investigations by an international commission of inquiry such as the UN Human Rights Council or the International Criminal Court, which has been investigating Israel and the Palestinians since 2021, may have committed human rights violations in the years after 2014.

Various states and organizations refer to Israel as an apartheid state. Could this accusation influence the decision of the ICJ?

The request for an opinion did not specifically mention the defamatory accusation of apartheid in the General Assembly resolution. It merely referred to discriminatory laws and measures. But this could open a door for the ICJ to mention and perhaps rule on the Palestinian charges.

What impact could the ICJ opinion have on Israel?

Should their assessment be extremely critical of the Jewish state, then it could have some negative repercussions. Not only would Israel’s reputation be damaged in the international community, the report would also be a victory for the BDS movement. This anti-Semitic organization would mark it as a great success and gain further impetus in the fight against Israel. In addition, this judgment could also affect the ongoing investigations of the ICC.

Could sanctions be imposed on Israel, is there even a threat of an economic boycott or exclusion from the international community?

I do not believe that. The United States, which has a strong right of veto, also sits on the Security Council. Since the Russian invasion of Ukraine, many companies have ceased operations in Russia. This happened mainly for moral reasons. I’m not saying this could affect Israel, but there is a risk that the report will affect the decisions of some companies.

What arguments does Israel have? What’s his defense like?

The first question is whether Israel will take part in the process or not. For many years, Israeli governments have not rejected international law. Their stance has always been that the process of the Israeli-Palestinian conflict is political and should only be resolved through negotiations and not through a court. Of course, the government cares about the opinion, but usually when making such decisions, they issue a written statement on states with which they have close ties. Since other nations can also give their opinion on this before the ICJ, I assume that Jerusalem will also use this right. However, the new right-wing government will find it more difficult to persuade friendly states to support Israel.

Could this advice force Israel into peace talks with the Palestinians and demand a two-state solution?

The 2004 court order said the Israeli separation barriers and most settlements are illegal and violate Palestinian self-determination and international law. Despite this, it has not forced Israel into peace talks with the Palestinians. What mattered most to Jerusalem was how the international community supported and embraced this decision. In the 2004 statement, numerous states even rejected the report. However, the new right-wing national government could negatively influence both the sovereignty of the court decision and the approval by the international community.

In what way?

Israel could exacerbate the already tense situation with unwise political decisions. For example by annexing parts of the West Bank or expanding settlements. The most important thing is to preserve the independence of the Israeli judiciary and not to curtail it. That is the difference from 2004. Because Israel’s supreme court is the guarantor for the preservation of its democracy and thus also for the trust of the international community. It would cast a dark light on the Jewish state if the independence of the judiciary were in question.

Why is the United Nations so focused on Israel? Why doesn’t the ICC react to massive human rights violations in China, Myanmar, Egypt, Iran, North Korea or elsewhere? Does anti-Semitism play a role here?

I don’t rule that out. But the international community expects more from Israel than from dictatorships like China or Iran. She sees the Jewish state as part of the western world and wants it to continue to behave like a democratic state. Israel does not have the power and influence such as Russia. Nevertheless, it is interesting that numerous states also voted against the resolution of the UN General Assembly.

Can one blame the UN double standards and the demonization of Israel to delegitimize the Jewish state?

I don’t see it that drastically. But since 2006, the UN Human Rights Council has passed more resolutions against Israel alone than against all the countries in the world combined. Compared to the Jewish state, Russia’s war of aggression in Ukraine has only twice been condemned by the UN General Assembly. That says a lot.

Tal Leder spoke to Ori Beeri