‘There is an amazing phenomenon taking place on the international scene,” commented an Israeli official 16 years ago when we chatted in between UN discussions. “Since 1967, there’s an ongoing occupation in the West Bank and 40 years since, the world’s governments oppose it but cannot change it.” This honest, well-described statement from an Israeli right-wing politician was as true back then as it is today. Is that situation, as described, about to change?
Israel stands, today, in front of a new type of challenge, as mentioned by Foreign Minister Director-General Alon Ushpiz at the last Mitvim Institute conference in November. The senior diplomat reviewed the achievements of Israeli diplomacy in recent years, which seemingly cracked the linkage between normalization with Israel and the resolution of the Palestinian problem.
At the end of his review, he described a worrying and challenging change in the way the international community treats the Israeli-Palestinian conflict, “There is a big difference between the way the international community treats the Israeli-Palestinian conflict until now as a political conflict that needs to be resolved through negotiations and moving on to declaring the situation on the ground as an ongoing illegal occupation.
So, the conflict is no longer being resolved through negotiations but through pressure on the Israeli side. Two completely different paradigms and two paradigms that place Israel in two completely different places. “Pressure on Israel also means measures from the world of sanctions,” Ushpiz concluded.
Since 1967, there has been a situation known internationally as temporary occupation, with legal recognition of the temporary legitimacy of the Israeli presence in the territories. UN Security Council Resolution 242 laid the groundwork for future negotiations that would bring about, according to the land-for-peace paradigm, the end of the occupation. Occupation isn’t forbidden according to the international system, if it describes a temporary situation.
A determinant international campaign against Israel
Throughout the years, the Palestinians have established a determinant international campaign against Israel, especially in the UN, in the hope that the world would coerce Israel into making concessions that cannot be achieved through negotiations. In their view, this is an effective battlefield, as they benefit from gathering a majority of votes for any initiative. On the other hand, through the institutions of government and the status of the Israeli High Court of Justice (HCJ), Israel has proven that it is a democratic and stable state of law.
The UN General Assembly resolution of December 30 is not just another declarative UN resolution to be disregarded. The legal opinion that the Assembly requested from the International Court of Justice (ICJ) deals with the legality of the Israeli occupation in the West Bank territories and its legal consequences on the policy of member states towards Israel. The resolution, which upgrades the ongoing Palestinian effort, was drafted with a Palestinian/Arab narrative and includes agreed language that will be incorporated, by definition, into future UN resolutions.
WE ARE currently at the beginning of a dramatic international phase, in terms of a paradigm shift. It is true that even in the past (2003-2004), the Palestinians used similar international legal institutions to attack Israel. In a previous opinion of the ICJ regarding the separation fence (“the wall” in their words), which was the result of a Palestinian initiative, it was stated that “we determine that the construction of the wall establishes a fact in the territory that may be final and permanent. In this case, the actual result will be the annexation of territories by Israel.”
But despite the similarity between the opinion published in 2004 and the one that will be published about the occupation, these are different cases: while in 2004 the court examined a specific issue (the fence), this time it will examine the entire subject of the occupation and the settlements, their legality, and their impact on “Palestine,” recognized today by the UN as a state, unlike in 2003/2004.
Moreover, in 2004, the HCJ addressed some of the claims of the ICJ when it proved that the Israeli legal system is strong enough to provide a local alternative of proper judicial review. At the time, the HCJ even ordered the security establishment to change part of the route of the fence. Israel clarified that the fence is temporary and claimed the right to self-defense against terrorism. Today, in the midst of a constitutional crisis that includes fear of a weakened HCJ, the arguments from 2004 may be weakened.
The prime minister announced that the opinion will not bind Israel, which usually refrains from cooperating with UN General Assembly resolutions that are born in sin, in its view (from unilateral decisions based on an automatic majority). I say, from my experience, that alongside denying the court’s authority, there are advantages in sharing relevant information with the UN/the tribunal, through an unofficial channel. And for reference: when Israel shared the data with the UN that proved that the military justice system was responding to the claims of a UN report, the damage was avoided. I hope that this time too a way will be found to cooperate in a discreet manner.
As for the possible consequences of the opinion, the way in which it will be implemented into action by Governments, countries, international organizations, legal institutions, the business sector and civil society is of crucial importance.
Governments are not expected to immediately adopt the advisory opinion and its recommendations and will prefer to wait. However, the opinion will penetrate the diplomatic discourse and trigger new Palestinian initiatives against Israel. The opinion of the judges of a prestigious body, such as the ICJ, as to the negation of the legality of the occupation, will motivate the BDS delegitimization movement, and the public apartheid campaign at international institutions and within civil society and around the world.
The accumulation of these moves could lead to a critical mass in which governments or international organizations, such as the European Union, would also be forced to act. The danger is not immediate but the train has already left the station.
The business sector may be immediately affected by the opinion. Against the use of social-moral adequacy indicators (ESG) influencing business decisions of corporations and companies regarding investments, there is a danger of damage to Israel’s economy. We see the first signs of this spirit in the decisions of Airbnb, Ben & Jerry’s, the Statens pensjonsfond (The Government Pension Fund of Norway), and others to avoid operating and investing in the territories.
WHILE THESE are examples that are above the surface, experts point to the possibility of a covert/silent boycott, which will lead to some boards of directors to decide to avoid investment or business relations with Israeli companies and financial entities, which have ties to the occupation. While the decision by Ben & Jerry’s can be fought, a stealth/silent boycott cannot. There are already reports of entities that are sitting on the fence waiting for the situation to be clarified.
A continuation of the trend may even harm Israel’s credit rating. It is likely that the ICJ’s opinion will also affect moves in another significant international legal institution: the International Criminal Court (ICC). It may give legal legitimacy to the promotion of proceedings against Israeli individuals. The day will not be far away when Israeli ministers, officers and citizens associated with the occupation will not be able to travel abroad without risking arrest or will be required to obtain entry visas, which may be refused.
The international business sector and civil society will benefit from a legal framework and feel protected if they decide to implement the recommendations of the opinion and act. It is, therefore, dangerous to ignore this and dismiss it by saying, “everything will be fine.”
The UN resolution would have been adopted in any case and is apparently unrelated to the change of government in Israel. At the same time, the voices being heard these days from Jerusalem sharpen, in the view of the Palestinians, the need to intensify their diplomatic and legal struggle. The world listens to the statements of government and Knesset officials about the expected moves, the coalition agreements, the laws to be legislated and the government guaranteeing exclusive rights to Israel in the West Bank.
The world is witnessing executive decisions, like handing the Civil Administration in the territories to civilian/political actors (instead of the military), splitting the military chain of command, promoting an immunity bill for soldiers, etc. All these actions will also strengthen, in the eyes of our friends, the fear that Israel is annexing the territories.
In addition, the lack of clarity regarding the legal reform, the weakening of the separation of powers, as well as intentions to weaken the HCJ, may give impetus to the opinion. They will intensify the criticism of Israel from the critics, weaken the supporters and help to assimilate a new paradigm of international pressure on Israel based on the assertion that there is an occupation that has turned into annexation in the territories.
THE ISSUE of the Israeli occupation of the territories, the control over other people and its influence on Israeli society are weighty issues that require a thorough discussion in Israeli society as a whole. However, the latest steps are taking place without discussion, creating a tangible danger of harming Israel’s status in the world, isolation and the return of the Arab Boycott in a new configuration, as a process that is partly hidden.
Israel cannot abandon interests in the international arena in favor of internal political considerations as reflected in some of the new coalition agreements. The leadership in Israel must understand that the situation described by the Israeli official 16 years ago has changed and that the transfer of the conflict to the legal arena is a dangerous dramatic development. This may lead to the criminalization of Israelis, damage to the economy and create real political damage. It must be attentive to the American expectation of maintaining shared values.
We must understand that in the new political reality, the safety net that the US has deployed for Israel at the UN should no longer be taken for granted. If we want to ensure the continuation of an American veto when (and only when) it is required (if the opinion is placed before the Security Council), we must take their positions into account.
The government of Israel must decide whether it intends to continue and follow the existing policy, which implies that the future of the territories will be determined in future negotiations even without setting a specific date or bringing about the annexation, while paying a heavy price. In this discussion, it is essential that the heads of state, its elected officials and its citizens be aware of the consequences of the change in the political and legal situation, which may have a significant impact on Israel, its status and the quality of life of its citizens.
The writer is a member of the community of experts at the Mitvim Institute. He served in the Foreign Ministry. His positions included deputy permanent representative at the UN (2005-2010) and the ambassador to India (2014-2018).