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Pro-Palestinian protesters demonstrate outside the International Court of Justice (ICJ) on the day of a public hearing to allow parties to give their views on the legal consequences of Israel's occupation of the Palestinian territories before eventually issuing a non-binding legal opinion, in The Hague, Netherlands, February 19, 2024.
Israeli occupation on trial at ICJ
Palestinian Authority Foreign Affairs Minister Riyad al-Maliki on Monday delivered an opening statement before the International Court of Justice at the Hague in a case about Israel’s occupation of Palestinian Territories since 1967. The UN-backed court will hear from more than 50 countries and three multinational organizations – the largest case in the ICJ’s history – but a decision could take months, and it would be non-binding.
This is separate from South Africa’s case alleging Israel is committing genocide in Gaza.
Quick history: In the aftermath of Israel’s war of independence in 1948, Egypt occupied Gaza while the West Bank and East Jerusalem fell under Jordanian control. However, when Israel launched preemptive strikes against an imminent Egyptian invasion in 1967, it responded to Jordanian shelling by pushing Amman’s forces back across the Jordan River. Israel has occupied the West Bank and East Jerusalem ever since, while Israeli settlers have inhabited large portions of each territory (see our explainer here). Israel also captured Gaza and the Sinai desert from Egypt but withdrew all troops and settlers first from Sinai by 1982 and then from Gaza in 2005.
The arguments? Palestinians argue that the occupation undermines their self-determination, that Israeli policy amounts to apartheid, and that the occupation is illegal. Tuesday’s session will be opened by South Africa, a strong Palestinian advocate, followed by delegates from nine other countries including Chile, which has the largest Palestinian population outside the Middle East.
Israel said in a written argument that the question before the court is prejudiced and an opinion would be “harmful” to a resolution, but it will not directly participate in the proceedings. Its strongest ally, the United States, is slated to speak on Wednesday.
Will anything come of it? The short answer is no. Israel will be free to ignore any ICJ decision. That said, the exercise is already illustrating Israel’s near-total isolation on the global stage – and we’re watching for how the Biden administration threads a tricky needle of public opinion at home. The president is facing opposition from the left wing of his own party as well as Muslim voters in the key swing state of Michigan for what they see as an overly deferential position toward Israel’s war in Gaza.What should Israel do next?
An Israeli ground incursion into Gaza has been inevitable from the moment Hamas launched its shocking Oct. 7 surprise attack into southern Israel, where it brutally massacred more than 1,400 Israeli citizens and took over 200 to Gaza as hostages. Israel’s objective: to destroy Hamas once and for all, ensuring it can never pose a threat to Israeli security again.
This long-anticipated offensive has thus far been delayed by international efforts to reduce the humanitarian impact, ongoing negotiations to release hostages, divisions within Israel’s unity government about what to do next, and pressure from Washington to wait until both Israel and the US are prepared to handle any resulting escalation. But the invasion will take place in short order.
This will be a terrible mistake for Israel, graver even than the one the US committed in Iraq and Afghanistan in response to 9/11. To be clear, I fully understand and share Israel’s desire to destroy the terrorist organization that is Hamas. Israel has every right to defend itself and retaliate against attacks on its citizens. But just because this objective is understandable, legitimate, and desirable, it does not mean it is feasible or strategically wise.
A large-scale invasion of Gaza would be counterproductive
There is no military way for Israel to fully destroy Hamas without killing tens of thousands of Palestinian civilians and radicalizing even more. An invasion of Gaza would be a humanitarian, moral, and strategic catastrophe, not only inflicting unfathomable human costs but also badly undermining Israel’s long-term security. Nothing it can hope to achieve – beyond satisfying Israeli demands for revenge – can outweigh the harm it is certain to do even in the best of scenarios.
Because Hamas’ military infrastructure is embedded in civilian areas and its 30,000-40,000 fighters hide among noncombatants, any attempt to destroy Hamas in Gaza would have to be conducted block by block, building by building, and door by door in one of the most densely populated and urbanized environments in the world, amid a uniquely hostile population and against a highly motivated enemy that has been preparing for this fight on their home turf for a long time. This slow and grinding urban battle would be tactically harder to prosecute and costlier in terms of Israeli military casualties than Fallujah was for the US. Even if Israel takes every precaution to protect civilian lives, many innocent people will inevitably be killed, injured, and displaced. Before Oct. 7, 50% of Palestinians in Gaza faced chronic hunger and 90% didn’t have access to clean water; under siege and without a way out of the territory, this will only get worse for them.
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The death and suffering of innocent civilians will in turn radicalize many more Palestinians in Gaza and elsewhere, increasing support for Hamas and multiplying the threat to Israel. At a minimum, widespread anti-Israel demonstrations will occur across the region, with terrorist attacks more likely. More social unrest will also emerge in the West Bank, Egypt, and Jordan, potentially destabilizing the broader region and sparking wider conflict beyond Gaza, with retaliation from Hezbollah in Lebanon or even Iran.
At the same time, the more damage Israel’s offensive inflicts, the more its own moral legitimacy and international standing will suffer. Western support for Israel will be tested, and Israel’s relations with Arab states and much of the Global South will become untenable, as will normalization with Saudi Arabia. Popular anger toward Israel among Arab populations could cause trouble for even the most repressive Arab regimes, lead them to distance themselves from the US and Israel, and drive a surge in extremist violence in the US and Europe.
Perhaps the biggest problem with a ground invasion is that even if Israel succeeded in eliminating Hamas, it has no plan for what to do with Gaza the “day after.” This is the same problem that befell the US after toppling the ruling regimes in Iraq and Afghanistan. Israel can’t install the Palestinian Authority, which is too weak and unpopular to take Hamas’s place. And it’s hard to imagine Egypt or the Gulf states would step up to administer Gaza after decades of washing their hands of the Palestinian problem. Yet if Israel simply pulls out, a reconstituted Hamas or another militant group like it would no doubt fill the power vacuum. Which means that once started, an invasion would lead to an indefinite occupation and an unwinnable counterinsurgency.
What’s the alternative?
Ultimately, there is no military solution to the Israeli-Palestinian conflict. Hamas is as much an idea as it is an organization made up of specific people: Israel can kill its entire leadership and destroy its infrastructure, but the movement and ideology will survive in one form or another so long as the political conditions that underpin its support continue to fester. The only way Israelis can achieve lasting security is by offering Palestinians a credible pathway to realize their legitimate aspirations for self-determination by peaceful means.
That's not to say Israel shouldn’t retaliate militarily against Hamas for the horrific Oct. 7 attacks. In fact, it must: Israel has a right to self-defense, and its government has an obligation to protect citizens from harm. Insofar as Hamas continues to pose a threat to Israelis, a (non-temporary) ceasefire and de-escalation is both politically impossible and morally unacceptable. In addition to physically preventing Hamas from attacking Israel in the near future, Israel must also reestablish deterrence both to prevent a bloodier assault down the line and to make diplomacy conceivable in the distant future. If its enemies believe Israel is weak, they will have no incentive to eventually work toward a peaceful solution.
So how can Israel achieve these aims without worsening the growing humanitarian crisis and causing more problems for itself? In other words, how can Israel fight a monster without becoming a monster? Instead of a full ground invasion that would inflict collective punishment on innocent Gazans and inevitably lead to a forever occupation, Israel should employ targeted strikes against Hamas leaders, fighters, and infrastructure to degrade the terrorist organization’s capabilities while minimizing Israeli military and Palestinian civilian casualties.
This counterterrorism campaign (as opposed to the regime change and counterinsurgency campaign that’s about to begin) should be paired with more pressure on Qatar to end its hosting of Hamas’s political leaders, negotiations and special forces operations to rescue hostages, and immediate (and sufficient) humanitarian aid for Gaza civilians. And it should only start once far more civilians have been able to get to safety. After all, Hamas is not going anywhere; no one in Gaza is. There’s no real reason not to take the time to set up the requisite safe zones and refugee camps, deploy humanitarian aid, evacuate greater numbers of northern Gazans, and negotiate the release of more hostages.
The heart wants what the heart wants
Alas, all signs point to Israel still going ahead with the ground incursion – and soon. This retribution campaign, which the White House has characterized to me as “emotional rather than strategic,” is supported not just by Netanyahu but by his entire war cabinet and most Israelis across the political spectrum. The military and intelligence services understand the difficulty and danger of a long-term occupation, but the leadership and citizenry are intent on going in hard and going in now, consequences be damned.
Despite the enormous leverage the US has on Israel, the Biden administration doesn’t believe it can forestall the invasion for much longer and is instead focused on limiting the consequent damage. They have accordingly privately advised the Israeli government to “go in quick, get out quick,” minimize areas of operation, and create safe zones inside northern Gaza where civilians can take shelter and access water, food, medicine, and fuel. Several relief trucks did finally get to civilians in southern Gaza over the weekend, but not nearly enough to meet Gaza’s minimum humanitarian needs. And there’s little hope Israel will agree to the ”humanitarian pause” the White House has been advocating.
To reiterate, Israel has a sovereign, inalienable right to security. But a ground invasion into Gaza does not accomplish that; it does the opposite, playing straight into the hands of Israel’s enemies and undermining regional stability without fundamentally solving any of Israel’s strategic dilemmas.
I truly hope cooler heads prevail to save Israel from itself, but absent a miracle, it’s going to get much worse before it gets better.