The ICJ’s advisory opinion on Israel and the Palestinian territories is so, so dispiriting. Let me begin with the caution I gave in my very first post after the October 7 massacre and repeated in one form or another in my post explaining the view of scholars who said that Israel did not have the right to respond to the Hamas attack with armed force, my post on scholars who do not seem to think it’s okay to respond with force to Houthi pirates, my post on the ICJ’s decision of provisional measures in the South Africa case, and my post on the ICC prosecutor’s decision to draw an equivalence between his charges against the leaders of Hamas and his charges against the leaders of Israel:

As I said, I am not an expert on the law of apartheid, the law of armed conflict, the law of colonialism, the law of indigenous peoples, etc. So I can’t give authoritative views about what the law in those areas actually is. But what I can say, from what I hope is the perspective of someone who is committed to peace and justice between Israel and the Palestinians and to a Palestinian state alongside the Jewish state, “if this is what the law is, then I think there is something wrong with the law.” 

So I am not going to write very much in this post about the law. Nor am I going to write about justice or try to convince you that the mass return of the Jews to their homeland, Israel, and their ancient capital, Jerusalem, after thousands of years of imperial rule by the Romans, the Arabs, the Crusaders, the Ottomans, and the British, and their renewed sovereignty there is one of the world’s great stories of anti-colonialism and indigenous rights. Instead, I’m going to write about the ICJ’s decision as an obstacle to peace.

There are two ideas that are key to any eventual peace between Israel and the Palestinians. The first is “land for peace.” The Palestinians get land for their state as part of the peace deal, and not as a base for carrying on the decades-long Arab wars aimed at destroying the Israeli state, a war that states such as Egypt and Jordan have long since abandoned. The second is “two states for two peoples.” The Palestinians will have their state, and the Jews will have their state. There will continue to be a strong Palestinian minority in Israel. In an ideal world Jews might be welcome to live as full citizens in the Palestinian state, though who knows.

It’s fair to question the current Israeli government’s commitment to “two states for two peoples,” though of course October 7 had to have an effect on the willingness of Israel to turn over control of the West Bank given Israel’s security needs. Israel has proved that it is willing to uproot settlements for peace, as it did it in Gaza twenty years ago, though that turned out to be a really bad idea. Anyway, the government’s policies on the West Bank are one of the main reasons that so many Israelis and non-Israeli Jews would like to see a different government. But the Palestinians have been extremely clear for decades that they do not want “two states for two peoples.” They want the establishment of a Palestinian state in the West Bank and Gaza, and they want to continue to press for the right of the descendants of Palestinians who lived in Israel prior to the 1948 war—those who fled and those who were expelled—to live in Israel, which would mean the end of Israel as a Jewish state and the establishment of two majority-Palestinian states. How do I know this is what they want? Because when the Palestinians were offered a state they said no and undertook a murderous intifada, since having a state meant that the Jews would also have a state. I also know it because they and their supporters say it all the time. “We don’t want no two-state, we want 1948!” “Min il-ṃayye la-l-ṃayye, Falasṭīn ʿarabiyye!” ¹“From the water to the water, Palestine is Arab!” This is the decidedly less universalist slogan that was made palatable to Westerners as “From the River to the Sea, Palestine will be free!” 

It was the second intifada and the Hamas takeover of Gaza that more or less destroyed the old left in Israel, as even the Israelis most sympathetic to Palestinian national aspirations realized that the Palestinians had no wish to live in their own state next to a Jewish state. So maybe the most important criticism of the ICJ’s decision I have to make is that it makes it harder, not easier, for there to be peace. This, by the way, is the same criticism I could make of UNRWA and the UN regime for Palestinian refugees, which works on principles that are essentially the opposite of the principles that apply to all other refugees. Instead of resettling the refugees after 1948, as was done with every other post-war movement of peoples across borders, the world has perpetuated the conflict for decades, legally, diplomatically, and financially, by legitimizing that part of the Palestinians’ national aspiration that only succeeds if Israel is destroyed.

The court’s advisory opinion ends by recognizing that

the realization of the right of the Palestinian people to self-determination, including its right to an independent and sovereign State, living side by side in peace with the State of Israel within secure and recognized borders for both States, as envisaged in resolutions of the Security Council and General Assembly, would contribute to regional stability and the security of all States in the Middle East.

Assuming for the moment that the court has in mind a Jewish state and a Palestinian state living side by side, then the court got this exactly right. Unfortunately, the court’s decision makes this goal harder, not easier, to achieve.

Image credit: Credit: Daniel Majewski (CC BY-SA)

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  “From the water to the water, Palestine is Arab!” This is the decidedly less universalist slogan that was made palatable to Westerners as “From the River to the Sea, Palestine will be free!”