Palestinians continue assault on the rule of law  

On Friday, the International Court of Justice in The Hague will issue an advisory opinion that is likely to be devastating for Israel, undermine the court’s reputation, and unleash further violence and antisemitism.  

At the request of fewer than half the total number of UN members, the court will opine on the legal status of the land referred to by the UN General Assembly as the “occupied Palestinian territory.” 

Advisory opinions are non-binding but given the court’s prestigious standing as “the world court,” its opinions are extremely important.  

This is the same court that is entertaining cases under the Genocide Convention alleging that Israel is committing genocide in Gaza. The court’s rather opaque provisional rulings have been widely, but falsely, used to conclude that Israel is committing genocide. Of course, it is not, and the court has not made any final rulings.  

Also in The Hague, the Palestinians are pushing the International Criminal Court (ICC) to prosecute Israeli leaders for Rome Statute crimes on Palestinian territory — even though Israel is not a party to the Rome Statute and Palestine is not a state.   

All of this “lawfare” in The Hague is result of a decade-long campaign driven by the Palestine Liberation Organization. Established in 1964 by the Arab states, the PLO is their vehicle to destroy the Jewish state and replace it with an Arab state from the river to the sea. The PLO remains fully committed to the use of violence to achieve the destruction of Israel. Notwithstanding former PLO President Yasser Arafat’s promises made to President Clinton in 1993, the PLO has never amended its charter nor changed its mission.

Instead, Arafat walked away from President Clinton’s offer at Camp David of over 97 percent of the West Bank in 2000 and launched the second intifada that resulted in 1,600 Israelis murdered and 9,000 injured. Ever since, the PLO has promoted (and financially sponsored) terror against Israel.  

In 2011, Arafat’s successor Mahmoud Abbas announced the PLO’s new strategy: to abandon negotiations with Israel and ask the international courts in The Hague to grant their demands for statehood. The first step was to mobilize states in the General Assembly to elevate Palestine to “UN non-member observer state status” in 2012.

Most Western states abstained from voting, enabling the UN to create a virtual Palestinian state on paper that bears little resemblance to reality, but has enabled the Palestinians to operate within courts and international institutions as if it is a state. 

The reality on the ground is that the Palestinians have failed to create effective institutions of government capable of ensuring the rule of law for its people and have made no effort to comply with basic international norms. 

Hamas reigns in Gaza, while the Palestinian Authority is corrupt and ineffective at governing while openly paying terrorists. Israel’s presence in the West Bank is essential to eradicate terror cells and prevent the West Bank from descending into chaos. As a result Palestine is not yet a state under the generally-accepted principles of international law. 

Yet the request for an advisory opinion invited the court to ignore all of this, and assume that Israel’s presence in the West Bank, East Jerusalem and Gaza is illegal, that all disputed Palestinian territory belongs to the Palestinians, and that they have a unilateral right to statehood. In their submissions, the Palestinians (supported by the Islamic and Arab states) demand that Israel remove all its military personnel and civilians from the “occupied territories” – immediately, unconditionally and completely. 

These claims not only defy reality, they are based on false legal assumptions. Israel’s reunification of Jerusalem since 1967 and its administration of the West Bank are not an occupation of a nation state, nor are they illegal. East Jerusalem and the West Bank do not belong to “the Palestinians,” nor do they have an absolute right to statehood under international law. International law requires the parties to negotiate this complex matrix of competing rights and obligations, including Palestinian rights to autonomy and Israel’s right to security. 

Requiring Israel to withdraw unilaterally from the West Bank and East Jerusalem – without any hard guarantees for Israel’s security – would be disastrous for both Israel and the Palestinian people. Just as happened in Gaza, Hamas and the Palestinian Islamic Jihad (PIJ) would soon take over the West Bank, and the Iranian revolutionary regime would have free rein to further extend its oppressive influence in the area. 

But the Palestinians’ claims at the International Court of Justice go much further. They seek a court ruling that the Jews have no national rights whatsoever, and that the establishment of a Jewish national home, pursuant to the Balfour Declaration (1917) and the Mandate for Palestine (1922) were illegal.  

This would require the court to completely rewrite both history and law. It also shows that the Palestine leadership is not seeking a two-state solution, but the elimination of the Jewish state and its replacement with a Palestinian Arab state from the river to the sea from which Jews will be excluded. 

The PLO is manipulating the advisory opinion process to continue its hostile lawfare campaign against Israel’s existence. It is to be hoped the International Court of Justice will not give in to this pressure. The court’s own reputation as trustee of fairness, due process and the rule of law is at stake.

Andrew Tucker is the director general of thinc (The Hague Initiative for International Cooperation), a think tank based in the Hague that is challenging the misuse of international law to delegitimize the state of Israel and advocates the fair interpretation and application of international law.