In a Worst-Case Scenario, the Recent ICJ Legal Ruling Could Threaten the Existence of Israel

Is the Western Wall an “illegal settlement” built on “occupied Palestinian territory”?

Is Israel an “apartheid” state?

Is it possible that terrorism against Israelis simply doesn’t exist at all?

These are some of the extraordinary conclusions that stem from the International Court of Justice (ICJ) advisory opinion last week. (A summary of the opinion can be found here.)

Though much of the ICJ’s analysis flies in the face of international law, logic, and common sense, the body has reached a conclusion and it is not subject to appeal. Therefore, the only relevant question that remains is: what impact will this advisory opinion have, and what will happen next?

The ICJ came to several conclusions in its decision, which I will briefly review.

“Occupation”: The ICJ held that Israeli presence on “Palestinian territory” is an illegal occupation. The Court unilaterally adopted a definition of what constitutes “Palestinian territory,” which includes the eastern part of Jerusalem, that, in turn, includes the entire Old City and its ancient Jewish Quarter, the Western Wall, and the Temple Mount.

This means, in effect, that visiting or praying at the Western Wall would technically constitute a type of war crime, as would living anywhere in the region of Judea and Samaria.

Security Fence: The Court addressed Israel’s “wall” (which is actually a security fence for 95% of its length), declaring it illegal. The court made no mention of the Second Intifada, nor the fact that the fence reduced Israeli deaths from terrorism by 95%, nor that the conditions necessitating such life saving security measures — i.e., official Palestinian support for terrorism — have not changed.

The Oslo Accords: A well-established principle of international law is that mutual agreement of two or more parties supersedes international conventions. Since 1995, Israel’s security measures, settlement activities, humanitarian aid, and physical presence in Judea and Samaria have been performed in strict accordance with the Oslo Accords, by mutual agreement of both Israel and the Palestinian Authority.

The ICJ has ignored or overruled the Oslo Accords so many times, that it effectively dissolved the Accords as a functioning agreement.

Negotiations: The ICJ has effectively required an end to negotiations over peace or co-existence by mandating the results of such negotiations without regard for the input of the parties themselves.

A few notable statistics: In its 80 page opinion, the ICJ used the word “occupation” 121 times, “violating” international law or Palestinian rights 29 times, “apartheid” three times, and alluded to “genocide” twice.

The ICJ did not acknowledge terrorism against Israelis, incitement to terrorism, or the “Martyr’s Fund” (which pays Palestinians to kill Israelis) even once — not even in its passing reference to October 7, which made no mention of the word “terrorism” nor the astonishing death, destruction, and hostage-taking perpetrated upon the Israeli people.

The vote by the ICJ was not unanimous — the vote was either 11-4 or 12-3 on most of the nine issues that were decided.

The Court’s Vice-President, Julie Sebutinde of Uganda, consistently sided with Israel, and wrote an eloquent dissenting opinion which is well worth reading. Judge Sarah Cleveland of the United States (a long-time Biden nominee) voted consistently against Israel.

The President of the Court, who also voted consistently against Israel, is Nawaf Salam of Lebanon — a country controlled by the Iranian-backed terror organization Hezbollah, which is currently at war with Israel.

In order to understand the possible impact of this decision, one must understand the “diplomatic intifada.”

In 2001, the Palestinians and various allies held a UN-sponsored (but ultimately Palestinian-controlled) conference in Durban, South Africa. Misleadingly entitled a conference “against racism,” the Durban conference was riddled with antisemitism, including Nazi symbology and rhetoric, and early examples of the “Israel apartheid” claims.

This conference also marked the inception of the anti-Israel boycott movement (BDS), as well as what later came to be called the Palestinian “diplomatic intifada,” the stated goals of which include isolating Israel and having Israel removed from the United Nations.

Though merely an advisory opinion, this ICJ decision is a meaningful step in a Palestinian campaign that spans 23 years of work, and billions of dollars of investment, aimed at discrediting, isolating and harming the Jewish State.

In a theoretical worst case scenario, the United Nations Security Council could remove Israel from the United Nations entirely, making Israel effectively a rogue state, as well as order Israel to implement the ICJ recommendations, and then impose sanctions if Israel refuses.

These would not be “BDS-style” sanctions, which are largely rhetoric, but instead what are called “Chapter 7 Sanctions” — the kind that one sees in places like North Korea. Not only would such measures plunge Israel’s economy and civilians into utter poverty, but sanctions would also cut off the IDF from necessary resources and resupply. Within months, Israel would become effectively “army-less” and vulnerable to attacks by any number of neighboring enemies.

It is likely (though never 100% certain) that the United States would veto such a resolution. However, short of the “worst case scenario” there are many intermediate scenarios that could result.

For example, individual countries may choose to implement the terms of the ICJ recommendation by cutting off trade with Israel, removing Israel from international events (such as the Olympics or FIFA), or embargoing arms shipments to Israel. In fact, some countries have already implemented such measures. The ICJ opinion would give these measures the legitimacy of international law, making them more widespread and more difficult to combat.

Most critically, a resolution of this nature can impact how voters view Israel in democracies around the world, leading, over time, to decreased support by Israel’s critical allies. We are already seeing signs of this on campuses and in political parties throughout the US and Europe.

This should hardly be surprising.

Israel’s global isolation has been the openly stated goal of the Palestinian Authority for over two decades. While Israel has (understandably) focused its resources on military defense and economic growth, the diplomatic battlefield has been left largely undefended, and the ICJ decision is just the latest result.

Daniel Pomerantz is the CEO of RealityCheck, an organization dedicated to deepening public conversation through robust research studies and public speaking.

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