The recent decision by a United Nations forum to seek an advisory opinion from the International Court of Justice (ICJ) in The Hague on the “occupation” is not to be taken lightly. The dangers posed to Israel as a result of the U.N. decision should not be neglected. Alongside the (indirect) legal and political battle, Israel should consider measures that will slow down and deter the continued Palestinian campaign to negate its legitimacy.
One can presume that the advisory submitted by the ICJ will not be comfortable for Israel. The most likely scenario is that it will be a polemic that will vilify Israel and cast doubt on the legality of its actions in Jerusalem, Judea and Samaria.
An advisory opinion of that nature will create a negative historical narrative of Israel and will provide support for declarations and decisions against it by countries who already lean that way, and will encourage the BDS movement. It will also provide a tailwind for the more militant elements in the PLO. However, the more significant damage is likely to be caused by the weight the advisory could lend to another case ongoing against Israel at the International Criminal Court (ICC).
We should remember that, last March, then-ICC prosecutor Fatou Bensouda announced the launch of an investigation into suspected crimes committed in Judea and Samaria, eastern Jerusalem and the Gaza Strip since June 13, 2014. Her announcement followed a preliminary investigation in the wake of a Palestinian complaint that claimed—contrary to Israel’s position—that the court has the jurisdiction to deliberate on such complaints. Israel called this decision a moral and legal disgrace and officially informed the court that it would not cooperate with it.
It should be noted that ICC investigations enable arrest warrants to be issued against suspects without any public notification. The court’s signatories are required to cooperate with the investigation, honor arrest warrants and hand over suspects located on their territory to the court. Beyond immediate harm to such persons, the opening of processes against them could impact its comportment in the international arena and severely damage its international standing. In any event, in practical terms the investigation against Israel has yet to commence and the Palestinians wish to advance it through the U.N. move at the ICJ.
In fact, what Palestinian Authority chief Mahmoud Abbas and his people are trying to achieve is a decision that the “occupation” is permanent and that it is in its entirety (not just measures within its framework) illegal. Therefore, Israel should be subjected to pressures and a price should be exacted for its continued presence in Judea and Samaria. The ICC will find it hard to ignore an advisory by the ICJ that adopts these conclusions in their entirety or in part.
At present, the ICJ should be busy dealing with the war in Ukraine and events in Georgia, Afghanistan, Africa and elsewhere. But Israel should not count on the court being too busy to deal with it. The ICJ (once the U.N. General Assembly officially turns to it) will target Israel, which will be required to answer the question of whether it is willing to cooperate. It would seem that the considerations that in the past led to a decision to turn down any such request still hold.
Israel will also have to consider changes in its approach to Abbas and the P.A. It should weigh measures that will make it clear to them that there will be consequences for the incessant campaign to negate Israel’s legitimacy. The means at Israel’s disposal are not meager. If they don’t deter Abbas, they should at the very least encourage a rethink of his approach among leaders who support it.