Australia is obliged to curb the import of products made in the occupied Palestinian territories after a landmark finding by the international court of justice that the Israeli occupation is illegal, according to a UN commission of inquiry member.
Australian human rights expert Chris Sidoti also revealed that his team was preparing advice for the UN general assembly about how to implement the ICJ’s advisory opinion.
Such actions could span political, diplomatic, economic, financial and military fields, with the advice due to be completed in coming weeks.
The Australian government is still weighing up its position on a Palestinian-drafted UN general assembly resolution that is due for a vote in New York on Thursday, with the Coalition blasting the wording as “one-sided”.
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Sidoti, a former Australian human rights commissioner, is one of three members of a UN commission of inquiry into human rights in Israel and the occupied territories – an open-ended inquiry that the Israeli government has long opposed.
He and two other legal experts briefed reporters in Canberra on Wednesday on the implications of the ICJ’s advisory opinion.
The ICJ stated that Israel’s “sustained abuse” of its position as an occupying power had rendered its presence in the territories it seized in the six-day war in 1967 as “unlawful”.
It said all countries were “under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence” including by preventing “trade or investment relations that assist in the maintenance of the illegal situation”.
Sidoti said any action should focus on the Occupied Palestinian Territory (OPT) rather than Israel, but he acknowledged the practical difficulties that could arise in distinguishing between the two.
“If a state like Australia is trying to implement the court’s decision and target economic relationships that support the settlements, and is not sure whether some product which is stamped ‘made in Israel’ is made in the settlements or not, the onus shifts to the State of Israel itself to establish that a product was made in Israel or in the OPT,” Sidoti said.
“And if Israel fails to establish that, then the other state, the trading state, is entitled to take broad action [and] is required to take broad action under the ICJ decision, even if it may have an impact beyond the occupied Palestinian territory.”
The executive director of the Australian Centre for International Justice, Rawan Arraf, told the same briefing that the government should “enact legislation banning settlement goods and services from entering Australia’s marketplace”.
Wine produced in Israeli settlements was available for sale in Australia, she said, while arguing that it should be up to the Australian government, and not the consumer, to act.
Prof Ben Saul, a UN special rapporteur on human rights and counter-terrorism, added that the UN human rights office maintained a list of companies that engaged in business in the occupied territory.
“Like we have a UN security council terrorism list that Australia just picks up and puts into Australian law and applies sanctions to, you could do the same thing with that UN list of companies,” Saul said.
“If any Australian companies are financing businesses or activities in the occupied territory, that should be prohibited under Australian law as well.”
Israel flatly rejects the ICJ advisory opinion, which was provided in response to a request from the UN general assembly that pre-dated the current Gaza conflict.
The office of the Israeli prime minister, Benjamin Netanyahu, said in a statement in July: “The Jewish people are not occupiers in their own land – not in our eternal capital Jerusalem, nor in our ancestral heritage of Judea and Samaria [the West Bank].”
The Israeli foreign ministry said at the time that the ICJ opinion was “not legally binding”, “blatantly one-sided” and “mixes politics and law”.
But Sidoti said on Wednesday that the ICJ was “the highest judicial body in the international system” and even though its advisory opinions were “not directly binding in themselves”, they still carried “enormous legal and political weight”.
“Four out of the five western judges supported the majority on every issue, and those judges were from the United States, the United Kingdom, Australia and Germany,” he said.
In the briefing, Sidoti also touched on potential legal risks for any individuals, including Australians, who take part in military services with the Israel Defense Forces (IDF), due to the IDF’s engagement “in the maintenance of the occupation”.
Donald Rothwell, a professor of international law at the Australian National University and not part of the joint briefing on Wednesday, confirmed the ICJ’s advisory opinion was “not legally binding in the same way [as] a judgment” but said it was “highly persuasive”.
Rothwell said he was “confident that the Albanese government has received extensive legal advice on the legal implications of the Advisory Opinion and how to respond”.
He said the advice would probably influence Australia’s vote on the looming general assembly resolution. The government is believed to be seeking further amendments to ensure it more closely reflects the ICJ opinion.
A spokesperson for the foreign affairs minister, Penny Wong, said Australia had “engaged constructively” in the hope of enabling “as many countries as possible to agree a practical path to a two-state solution and self-determination for the Palestinian people”.
The Israeli embassy in Canberra was contacted for comment.
