The United Nations general assembly’s resolution on Wednesday advanced a dramatic legal shift, begun by the international court of justice (ICJ) in July, in how we understand Israel’s occupation of Palestinian territory. The US government’s response suggests a refusal to recognize the new legal reality in which Israel now finds itself.
The general assembly resolution, which largely tracked the ICJ ruling, was adopted by an overwhelming vote of 124 to 14, with 43 abstentions. The tally was even more lopsided than the numbers suggest, given that the “No” votes were limited to Israel, the United States, a group of small Pacific states, and a handful of outliers such as Viktor Orbán’s Hungary and Javier Milei’s Argentina. Britain abstained.
The ICJ had found Israel’s prolonged occupation to be unlawful and ordered it to end “as rapidly as possible”. The headline on the general assembly resolution was that it ordered Israel to withdraw from occupied Palestinian territory within one year. But that is only the beginning.
The general assembly confirmed the ICJ ruling that Israel’s prolonged occupation constitutes a de facto annexation and hence a violation of the “principle of the non-acquisition of territory by force”. In other words, although the term was not explicitly used, the endless occupation is an act of aggression – no different from Russia’s invasion of Ukraine.
Until now, most analyses of Israeli conduct in the occupied territory have focused on particular war crimes – say, the starvation or indiscriminate bombing in Gaza or the settlements in the West Bank and East Jerusalem – or the crime of apartheid throughout the occupied territory. From now on, we should also recognize the occupation as a forcible violation of Palestinians’ right to self-determination.
Or to put it another way, international humanitarian law, which governs warfare, is neutral about the fact of occupation but imposes duties on the occupier for how it must treat the occupied population. But the ICJ, and now the general assembly, also looked to a separate body of law which regards prolonged occupation as the illegal forcible acquisition of territory. Israel is violating both sets of laws.
There is no reason to expect the Israeli government to respect international law against aggression any more than it has adhered to international human rights or humanitarian law, but the ICJ and the general assembly also spoke to other nations. All governments, they said, have a duty to stop transferring arms to Israel “where there are reasonable grounds to suspect that they may be used in the Occupied Palestinian Territory”.
The new British government has already taken steps to comply with this legal requirement (other than for components of the F-35 bombers being used to pummel Gaza), but the US government has suspended only the delivery of the 2,000-pound bombs used to decimate Palestinian neighborhoods, not a plethora of other munitions still being provided.
Beyond arms, the general assembly and ICJ require governments to take “steps to prevent trade or investment relations that assist in the maintenance of the illegal” occupation. There already have been calls for businesses to avoid complicity in the settlements. Governments must now not only adjust their own conduct but also move to prevent businesses and investors in their countries from supporting the overall occupation.
The US government’s response to the general assembly resolution reflected (at least feigned) ignorance of the legal paradigm shift that has occurred. The Biden administration accused the general assembly of “ignoring Israel’s very real security concerns”, but that misses the point of the ICJ ruling. Those security concerns must be met from within Israel, not through occupation.
Indeed, the ICJ had already said as much in 2004 when it ruled that Israel’s security barrier must be built within its 1967 borders, not, as Israel did, with deep incursions into the occupied West Bank and East Jerusalem. In other words, concerns with “security” do not justify seizing someone else’s territory by force, as many nations have already made clear in condemning Russia’s invasion of Ukraine.
The Biden administration also said that the general assembly’s action will “impede reinvigorating steps toward a two-state solution”, Of course, there are no “reinvigorating steps” toward a Palestinian state being taken while the Israeli government of the prime minister, Benjamin Netanyahu, categorically refuses to countenance that result. But more fundamentally, the ICJ envisions a very different route to a Palestinian state.
The ICJ rejected the idea that the Oslo accords represent any abandonment of Palestinian rights by noting that Article 47 of the fourth Geneva convention precludes any agreement in which a population under occupation relinquishes its rights. That makes sense, given the disparity of power. The rule prevents a quisling government like the Palestinian Authority from negotiating away fundamental rights. From now on, the route to a two-state solution is not negotiation between unequals during occupation but negotiation after occupation. Withdrawal must come first.
Some have noted that the ICJ decision, which came in response to a general assembly request for an advisory opinion rather than in response to a dispute between two states, is not legally “binding”. But that offers little solace to Israel or its backers. The ICJ is the world’s highest court – there is no court to overrule it – and a later lawsuit before it between states, such as South Africa’s genocide case against Israel or Nicaragua’s case against Germany for arming Israel, would produce a binding result that is unlikely to come out any differently.
Similarly, the general assembly does not have the coercive powers of the UN security council, but with the security council stymied on Israel and Palestine because of the US veto, the general assembly is the main alternative. Indeed, the US government itself turned to the general assembly when the Russian veto precluded security council action on the invasion of Ukraine. There was no talk then about general assembly actions being non-binding.
The general assembly and ICJ actions also have implications for the international criminal court (ICC), which is currently considering the prosecutor’s request for arrest warrants for Netanyahu and the Israeli defense minister, Yoav Gallant, as well as three senior Hamas officials. The main argument against warrants is the claim that Palestine is not enough of a state to join the court and hence to confer on it jurisdiction.
But the general assembly and ICJ both affirm the duty “not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory”. Although they were speaking to governments and UN agencies, not the ICC, the fact remains that the main obstacle to full Palestinian statehood is Israel’s illegal occupation. The ICC judges would be remiss if, despite 146 governments having recognized a Palestinian state, they would rule against Palestine’s ability to join the court.
Interestingly, the general assembly resolution was modest in certain respects. It fully recognized Israel’s right to exist within its pre-1967 borders, as it should. And it spoke of the right of refugees to return to ancestral homes in the occupied territory without addressing those who would want to return to past homes within Israel. The Israeli government blocks both.
Still, the combined action of these two leading international bodies has effected a revolution in our legal understanding of Israel’s endless occupation. The Israeli government will undoubtedly resist, but everyone else has a duty to press it to comply – and to avoid any contribution, military or commercial, to Israeli defiance.
Joe Biden is probably too set in his ways to change, and Donald Trump has never directed anything but a green light toward the Israeli government, but Kamala Harris, as a former prosecutor, understands the importance of respecting the law. Should she emerge victorious in November, I hope she will reconsider Washington’s blind support for Israel and its illegal occupation.
Kenneth Roth, who was executive director of Human Rights Watch from 1993 to 2022, is a visiting professor at Princeton’s School of Public and International Affairs
