Portside

You can’t say Israel wasn’t warned.

On June 19, 1967, a week after the Six-Day War, the Israeli cabinet met to discuss the future of the territories that Israel had just occupied. One proposal was to permanently keep the West Bank and give its Palestinian residents local autonomy—but not citizenship. Justice Minister Yaakov Shimshon Shapira responded that in “an era of decolonization,” the idea was absurd.

“Every progressive person will rise against us and say … ‘They want to turn the West Bank, inhabited by Arabs, into a colony,’” he said.

Three months later, Israeli Prime Minister Levi Eshkol was preparing to green-light the first Israeli settlement in the West Bank. A top aide checked with the Foreign Ministry’s legal adviser, Theodor Meron, about the legality of the move.

“My conclusion,” Meron answered in a top-secret memo, “is that civilian settlement in the administered [occupied] territories contravenes explicit provisions of the Fourth Geneva Convention.” In other words, it was illegal.

Meron, who’d go on to become one of the world’s leading authorities on the laws of war, cited the last paragraph of Article 49 of the convention: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Fast-forward to this summer. At The Hague, the president of the International Court of Justice, Nawaf Salam, read out the tribunal’s opinion on the legality of the Israeli occupation on a Friday afternoon—timing that guaranteed minimal coverage, because journalists would already be leaning into the weekend. He spoke in the rhythmic monotone peculiar to judges declaiming long printed judgments, but his words were dramatic—indeed, scathing.

The ICJ had concluded that Israel, behind the facade of a temporary occupation, has developed permanent control of the West Bank, East Jerusalem, and the Gaza Strip. The settlements are one part of that metamorphosis. Therefore, Israel has violated the post–World War II ban on acquiring territory by force, and it has “frustrated the right of the Palestinian people to self-determination.”

And so, “Israel’s presence in the Occupied Palestinian Territory [is] unlawful” and should end. Other countries must avoid recognizing Israeli annexation of any territory taken in 1967, including East Jerusalem.

As an Israeli, I am devastated by the indictment of 57 years of my country’s policy and actions in the occupied territories. As someone who has reported extensively on those actions, I also know that the opinion is almost entirely on target.

The opinion is advisory and not binding. It does not obligate Israel or any other country to act. A United Nations Security Council decision based on the ruling would be necessary for that. Yet it’s a watershed. That Israel is breaking the law is now the position of the highest tribunal for international disputes. The ruling could spur individual countries, including traditional allies of Israel, to take actions, such as imposing newer and wider sanctions against individual settlers, settlement organizations, and even Israeli-government officials. Britain is reportedly weighing ending some arms sales to Israel because of the ICJ opinion.

Note that despite the timing, the opinion isn’t connected to the current war in Gaza, and the court did not regard its mandate as covering the aftermath of October 7. That is because the ICJ was responding to a request by the UN General Assembly in December 2022. Gaza is mentioned because Israel continued to exercise some authority over that territory after its 2005 withdrawal—for instance, by controlling Gaza’s airspace and offshore waters.

More important: Gaza shows up in the 83-page opinion because the ICJ defines the West Bank, East Jerusalem, and Gaza as a single territory—and as the realm in which Palestinians have the right to self-determination. Given the tide of recent anti-Israel activism in the West, this point is worth stressing: The ICJ opinion takes the legitimacy of Israel within its pre-1967 borders as a given. It provides no sustenance to those who regard all Israelis as settlers, or who call for a Palestinian state “from the river to the sea.”

Explicitly, the court affirms that recognizing a Palestinian state next to Israel is the way to end the conflict. An Israeli government eager to reach a two-state agreement—a government utterly different from the current one, in other words—could find at least a few sparks of light in the opinion.

The key to the ICJ’s logic is this: Military occupation of land beyond one’s borders can be legal if it is a military necessity. But it is supposed to be temporary. Under post–World War II international law, you are not allowed to annex your conquests. The occupier must administer the territory for the benefit of the local population.

Temporary, however, is an undefined, slippery term.

Imagine an alternative world, in which Israel conquered the West Bank and Gaza in 1967—and then heeded those early warnings. It left local laws in place, didn’t settle Israelis on occupied land, and treated the 1949 Fourth Geneva Convention as holy writ. Let’s say that Israel tried to reach peace with the Palestinians, but an agreement never came together—over the refugee issue, or access to holy places, or security arrangements, or Palestinian cold feet about ending the conflict. Fifty-seven years later, Israel could still be a legal occupier.

We don’t live in that world. Though the court does not mention this, actual history diverged from that scenario on the first night after the cease-fire in 1967. An Israeli lieutenant colonel oversaw the bulldozing of the Arab neighborhood next to the Western Wall in Jerusalem’s Old City, to create space for crowds next to the Jewish holy site. In those first postwar hours, Israel seized real estate in occupied land for its own use and forcibly displaced residents. Both actions were violations of international law that the ICJ does describe in more general terms.

Within three weeks, the Knesset passed laws allowing the government to expand the city limits of Israeli Jerusalem to encompass the Old City and an additional swath of occupied land—and to extend Israeli law to those areas. In the hope of reducing international objections, Israel insisted that this wasn’t annexation, just a local municipal change. But as the ICJ points out, the Geneva Convention forbids changing local laws and institutions in occupied territory. And the Knesset’s passage of a 1980 law formally declaring the “united, complete” city to be Israel’s capital made annexation explicit—and removed any remaining ruse of temporary occupation in East Jerusalem.

Despite Theodor Meron’s warning, the first civilian settlement in the West Bank was established in September 1967 in what was known as the Etzion Bloc, between Bethlehem and Hebron. The Etzion Bloc had been the site of four kibbutzim, which were conquered by Trans-Jordanian and local Arab forces on the eve of Israel’s establishment, in May 1948; in his memo, Meron wrote that establishing a settlement there would nonetheless be seen internationally as violating the Fourth Geneva Convention. So this move, too, involved a pretense. “As a ‘cover’ for the purposes of the diplomatic struggle,” says a long-classified Israel Defense Forces document, the settlement was identified as a military outpost—permissible for an occupying power. In fact, the memo confirms, the settlement had no connection to the army.

As the number of settlements grew and maintaining the “cover” became impossible, the government switched tactics. It relied on the arguments of two prominent Israeli jurists, who said that the Fourth Geneva Convention did not apply to the West Bank. That claim gained almost no support from legal experts abroad.

Meanwhile, the West Bank remained under the direct rule of the IDF, subject to a mix of the pre-1967 legal system and Israeli military laws. The right-wing Likud party took power in 1977 and stepped up settlement building. Government financial incentives drew Israelis to new suburbs in occupied territory—but what laws would apply to them there? Military orders in 1979 enabled the commander of the West Bank to set up Israeli-style local governments for settlements, where Israeli laws would apply solely within the municipal limits.

The 1995 Oslo Accords with the Palestinians were supposed to lead to a final status agreement that would decide the fate of the settlements. After Oslo, the Israeli government stepped up road-building to settlements, so that settlers could avoid driving through towns now administered by the new Palestinian Authority. No final-status agreement was ever reached, and the web of roads kept growing. Today, the roads serve to ease the commute to settlements.

An illustration: My home in West Jerusalem is near a main thoroughfare. Less than a mile to the south, at a spot marked neither on official maps nor on the road itself, it crosses the pre-1967 border. Take a quick right and then a left at a pair of traffic lights, and you’ll be on a highway that passes through two tunnels through the mountains to take you to the Etzion Bloc of settlements. Settlers living there vote in Israeli elections, are covered by Israeli national health insurance, and in nearly every respect live as if they were inside Israel. None of that applies to Palestinian communities near the same highway.

So when the ICJ opinion states that “for all intents and purposes,” Israeli has annexed parts of the West Bank “while hiding behind a fiction” of temporary occupation, it is describing the uncomfortable truth.

Prime Minister Benjamin Netanyahu’s current government makes very little effort to maintain that fiction. The ruling coalition depends on two far-right parties, both led by settlers. One of those leaders, the Religious Zionist Party’s Bezalel Smotrich, has a double portfolio, as finance minister and as a minister within the Defense Ministry. In the latter role, he was given control over planning and construction in the West Bank. Those powers previously belonged to the military. Handing them to a civilian dispensed with the cover of military occupation—bringing Israel closer, as the ICJ points out, to asserting explicit sovereignty in the West Bank, which is to say, permanent control.

Permanent is also a slippery term. The ICJ’s operative conclusions are that virtually everything Israel has done—its settlements, its legislation, its expropriations, and more—should be treated as impermanent and reversible. Some of this is doable, albeit only by an utterly different Israeli government. To start, the court says, “Israel must immediately cease all new settlement activity.” But then it goes on to say that Israel should evacuate “all existing settlements,” which is less persuasive, and less likely.

Previous rounds of Israeli-Palestinian negotiations, even if unsuccessful, developed the idea of land swaps: Israel would retain some large settlements close to the pre-1967 border and cede some of its own sovereign territory to the new Palestinian state in exchange. The simple reason to pursue this is that it would make a two-state agreement easier to reach and carry out.

The headline finding in the ICJ opinion is that Israel must “end its presence” in occupied territory “as rapidly as possible.” This sounds logical and attractive: I’d like to see the occupation end tonight, if it could happen safely. But as a dissent by three of the court’s judges argues, a reality outside the frame of the majority opinion complicates such demands: By any measure, Israel “faces serious security threats.”

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Put differently, the court’s majority is treating the West Bank and Gaza as a colony that Israel should simply give up. But unlike France and Algeria, or Portugal and Mozambique, Israel and the occupied Palestinian territories border each other—and within those territories are armed and popular Palestinian groups that lay claim to all of Israel. Hamas has shown no sign that it would give up that claim and lay down its arms if Israel would just unilaterally leave both Gaza and the West Bank. Building a Palestinian state capable of living peacefully next to Israel requires Palestinian political change, which in turn requires a level of international and especially American involvement that has been lacking in recent years. It requires not just Palestinian willingness to sign off on the end of the conflict, but also a Palestinian government ready and able to disarm all armed groups within its borders. It may require foreign peacekeeping forces, like those deployed in the Sinai after the Egyptian-Israeli peace agreement. These are not developments likely to happen overnight.

The Israeli government, predictably, rejected the opinion. The Jewish nation “is not an occupier in its homeland,” a cabinet resolution proclaimed. On the surface, this statement seemed to brush off the legal case. But it subtly pointed to the need for an international legal framework.

Almost the entire stretch of land extending from the Baltic Sea to the Red Sea belonged to empires until the late 19th century. The crumbling of the empires, and then their collapse during World War I, led to the creation of nation-states, based on the principle of self-determination. But the historic lands of the nationalities overlap, like the circles of a Venn diagram. Hungary can claim that part of its homeland is now in Romania; Turkey and Greece could each claim part of the other’s territory on historic grounds. And Jews and Palestinians can each rightfully claim the same narrow land as their own.

By itself, self-determination is a formula for unending war. The ban on acquiring territory by force is meant to prevent this. It bars Israel from annexing the West Bank and Gaza. For the same reason, Palestinian self-determination must be limited to those territories.

The ICJ opinion describes 57 years of a disastrous Israeli policy. Ultimately, it could help bring about positive change—by pushing other countries to reengage with the effort to bring Israelis and Palestinians to a two-state agreement, or by serving as a warning to Israel to reverse course. For the moment, however, the ruling is just one more reminder that Israel needs a government capable of hearing that warning at last.