ICJ | First One Through

The headline deal which everyone pretends is a simple human-rights triumph — hostages home in exchange for prisoners and a ceasefire — is, on its face, a moral imperative. Families and politicians, of course want the war to end and hostages back home. But if we treat this swap as merely a humanitarian ledger without thinking about incentives, strategy and deterrence, we invite a replay of October 7 — not because anyone wants it, but because the arithmetic of the deal makes another mass-carnage payoff seem rational to those who plan such crimes.

*Palestinian Arabs wave Hamas flags atop the Red Cross truck bringing releases terrorists to the West Bank in November 2024*

Here’s the cold calculus the bland statements miss.

Hostages for prisoners. Civilians for killers. A handful for hundreds. These trades have an immediate human relief value. The cost, however, is structural: they reset the reward function for terrorism. If a violent raid can reliably purchase the release of leadership, fighters, and political capital — and if the international response includes legal actions that delegitimize the responding state — then the net effect is to make mass atrocity an instrument of statecraft.

Celebrations for released Palestinian Arab terrorists in 2014

But the mathematics isn’t just – and must not be viewed as – the prisoner-to-hostage ratio. It includes the defensive response: the likely military, political, and territorial consequences of the assault. Hamas should be forced to accept that math too. If it contemplates another October 7-style operation as it has promised to do repeatedly, it must understand that the outcome will not be a tidy prisoner exchange and a televised victory lap. It will be the destruction of leadership and the decimation of military infrastructure, with broad international support for the defensive measures taken to prevent a repeat.

Which brings us to the international legal theater now playing out: the ICJ’s “genocide” accusations, the vociferous statements from states threatening arrest of Israeli officials, and the diplomatic embrace of Palestinian statehood in some quarters. These actions, however well intended by their proponents, have immediate strategic effects. They amplify Hamas’s narrative of global validation and, crucially, complicate the deterrent effect of defensive operations. If a state in self-defense risks being publicly criminalized or its leaders subject to arrest, the calculus of deterrence is altered – for the entire world.

So, what should sensible governments do if they insist on both protecting Palestinian rights and preventing another October 7? Two practical propositions:

If regional governments want backing for Palestinian statehood and avoid terrorism in their own countries, they should drop the ICJ case. the Arab and Muslim countries which backed the U.S. ceasefire plan should pressure South Africa and other countries which brought the case to drop the charges and let diplomacy take center stage. Law and diplomacy should be tools of stability, not absolution for terror strategies.
If the desired outcome is that populations on both sides live within range of cross-border terror and reprisals, then investing in defensive infrastructure as a bridge to a political solution is a rational step. The United Nations and donor states should be pressed to fund a replacement barrier between Gaza and Israel — walls and surveillance that reduce the risk of mass infiltrations, so that the question of where futures lie for Palestinians becomes a matter of state-building and safety inside Gaza, not a perpetual recruitment slogan for militancy.

*Hamas breaks through security fence between Gaza and Israel on October 7, 2023, on way for mass murder and abductions*

This is not a call to abandon human rights oversight or to whitewash abuses. Accountability and adherence to international law matter. But timing and incentives matter too. Legal actions taken in the heat of war — unmoored from a strategy to prevent recurrence — can harden positions and diminish the tools of deterrence. If the objective is to keep people alive and build a durable peace that allows Stateless Arabs from Palestine (SAPs) self-determination without repeated massacres, then international actors must think like engineers of stability, not moral prosecutors on a press release timetable.

If we are serious about both ending the war and preventing future acts of mass terrorism and barbarity, we must stop evaluating deals by immediate feel-good optics alone. The right measure of a deal includes whether it reduces the incentive to perpetrate mass atrocities, strengthens deterrence against their planners, and clears a path toward political arrangements that give civilians on all sides a future. Anything less is not a solution — it is an invitation.

The top court of the United Nations, the International Court of Justice (ICJ) ruled that Israel’s presence in territories it captured in the June 1967 Six Day War is illegal. Specifically, it decided that “Israel’s presence in the Occupied Palestinian Territory unlawful.” ICJ’s President Nawaf Salam said that “Israeli settlements in the West Bank and East Jerusalem, and the regime associated with them, have been established and are being maintained in violation of international law.”

To arrive at such conclusion, the ICJ must believe that Jordan is Palestine.

The “West Bank and East Jerusalem” were captured in a defensive war that Israel fought after Jordan (Transjordan at the time) attacked it from those lands in 1967. TransJordan had annexed those lands in April 1950 after it fought a war to destroy the nascent Jewish State. Only Britain, Pakistan and Iraq recognized that annexation.

It would appear that the ICJ has now recognized that annexation as well.

The San Remo Conference of April 1920 set the outline for carving up the defeated Ottoman Empire into a number of mandates, including the Mandate of Palestine which covered today’s Israel, Gaza, West Bank and Jordan. According to the British Mandate which took effect in July 1922, Britain had the right to separate Mandate Palestine into two areas: one for the Jews west of the Jordan River and one area east of the river, according to Article 25. It did so on May 23, 1925 in the area that became Trans-Jordan. Trans-jordan declared its independence on May 25, 1946.

Britain was having difficulty dealing with the eastern Palestinian Mandate and turned to the United Nations for assistance. In November 1947, the UN General Assembly voted to partition the remaining eastern Palestine into a Jewish State and and Arab State, with the area of Greater Jerusalem and Greater Bethlehem to be held by the United Nations in a Corpus Separatum, an international zone.

*UN’s plan for an internationally-controlled “Corpus Separatum” including Greater Bethlehem and Jerusalem*

The UNGA and the Jews accepted the planned division but the Arabs rejected it. When Britain left the region in May 1948 and the Jews declared a new State of Israel, the Arab world attacked. At the end of the war, Transjordan seized the area that became known as the “West Bank”, the eastern part of Jerusalem and all of greater Bethlehem. Israel took the western part of Jerusalem. Transjordan ethnically cleansed its annexed lands of all Jews and gave citizenship to everyone who lived in those lands in 1954, except if they were Jews (Article 3).

*“Corpus Separatum” in purple as divided between Israel (shaded grey) and Trans-Jordan (in white)*

Palestine did not exist as a distinct country pre-1948, but was a subset of Greater Syria as part of the Ottoman Empire until 1917, and then under British rule. Under the British, the land was separated into a portion west of the Jordan River set up to be a reestablished Jewish homeland, and east of Jordan River to be Transjordan. After the Israeli war of independence, there was still no “Palestine” but an expanded Jordan which seized the western shores of the Jordan River which were to be part of the Jewish homeland, and eastern Jerusalem which was designated to be an international city.

Whether during the Ottoman Empire, British Mandate, or during Israeli and Jordanian rule, there was never a country called Palestine. Further, “East Jerusalem” a fragment of the city which existed only during 18 years from 1949-1967 under Jordanian rule, was never contemplated to be part of Palestine in any formulation.

Israel fought a defensive war with Transjordan in 1948-9 and then again in 1967 in land that was specifically designated in the San Remo Conference and the British Mandate to be an integral part of the Jewish homeland. In order to consider the “West Bank and East Jerusalem” to be “occupied” and “illegal”, one would have to declare that:

the British mandate to have been illegal
the annexation of the seized land west of the Jordan River by Transjordan in 1949 to be legal
Jordan’s ethnic cleansing of Jews from those lands and barring them from citizenship to be legal
Jordan to be Palestine

In no other configuration could the ICJ conclude that Israeli Jews living in eastern Jerusalem is illegal and should be expelled.

The ICJ ruling is revisionist history and deeply antisemitic. It shows the moral rot of the United Nations which still has “Zionism is racism” in its lifeblood.