What is the legal status of the International Court of Justice’s (ICJ) ruling on Israel’s occupation of Palestinian territory? And what does it mean for Australia?
To recap: the ICJ’s panel of 15 judges delivered its opinion last Friday, with the following declarations:
- Israel’s continued presence in the occupied territories (East Jerusalem and the West Bank, which it has occupied since capturing them during the 1967 Six-Day War) is unlawful;
- It is obliged to end its occupation “as rapidly as possible”;
- It must cease all new settlement activities, and evacuate all settlers from the occupied areas, and make reparations to Palestinian people harmed by the occupation;
- It has obligations to the people of Gaza commensurate with its degree of control over that area;
- Its policies and practices — settlement activity and the effective impunity afforded settlers for their illegal acts, land confiscations and annexations, excessive use of force, discriminatory laws and practical discrimination against Palestinian people (what many have described as a state of apartheid) violate international law;
- The cumulative effect of Israel’s actions has denied the Palestinian people their right to self-determination.
The ICJ is a court established by the Statute of the International Court of Justice, in place since the formation of the United Nations in 1945. It forms part of the UN Charter, and consequently all 193 member states of the UN are also parties to the statute.
The court’s jurisdiction is also defined by the statute; relevantly, to give advisory opinions on any legal question asked of it by the UN General Assembly. That body resolved in December 2022 to ask the ICJ to advise on the legal consequences of Israel’s occupation and actions in the occupied territories, as well as the consequences for other member states and the UN itself.
The media has generally reported the ICJ’s opinion as “non-binding”. This is both true and untrue. It is correct in the practical sense, because neither the ICJ nor the UN has means of enforcing its own determinations. Israel has rejected the ICJ ruling, and the US will disregard it, no matter what anyone else says or does.
However, as a matter of international law, all member states of the UN are obliged by their submission to the charter to uphold and act in accordance with its dictates. That is the whole point of its existence: the so-called rules-based international order.
The ICJ is accustomed to being ignored, but that’s never stopped it trying to do its job. It’s 83-page opinion is a deadly serious analysis and determination of very complex legal questions, based on highly contested facts. Business as usual for any court of law.
Having ordered Israel to cease settlement activity, vacate the occupied territories and pay reparations — none of which is likely to happen if Israel sticks with its government’s current policies — the court turned to the consequences it says now flow to other states from its rulings.
In accordance with precedent, the ICJ said that Israel’s violations of law are ”the concern of all states” given the universal importance of the human rights involved. This aligns with the general trend in international law that has developed since the UN’s founding, towards a concept of collective responsibility to protect all people from major violations of their human rights no matter where they are or who is doing the violating.
This principle emerged strongly with the international shame over the genocides in the Balkans and Rwanda. It was invoked by the countries who invaded Afghanistan in 2001 and Iraq in 2003.
The ICJ said that precisely how member states should go about ensuring Israel’s occupation comes to an end will be a matter for the UN General Assembly and Security Council to decide; with big questions like this, it’s usually left to the latter, a tricky business given the veto power held by its five permanent members.
However, the court declared that all states (including Australia) are at least obliged to take these measures:
- Not recognise Israel’s occupation of the territories as legal, by any means, including diplomatic missions or trade relations that assist in maintaining the occupation;
- Not render any aid or assistance to the continued occupation;
- Ensure Israeli compliance with international humanitarian law.
What this means in practical terms is being widely canvassed. For example, Francesca Albanese, the UN’s Special Rapporteur on the occupied territories, has posited that member states may be obliged to disclose to the UN which of their nationals are living in West Bank settlements now declared illegal.
Questions have also arisen as to whether states should be imposing sanctions on Israeli leaders and settlers, or diplomatic or trade embargoes on Israel itself. There are no definitive answers, because there is no clear line to draw between steps any country might take and the court’s end in sight.
As for Australia, its only action so far is a declaration by Penny Wong in June that the government will refuse a visa to any “extremist Israeli settlers” who try to come here. Beyond that, it will no doubt wait to see what the fallout of all this is in the UN. Wong has affirmed that Australia recognises the ICJ’s jurisdiction and respects its decisions.
Additionally, in some respects Australia is already in compliance with the court’s rulings — we formally recognise the 1967 borders and treat the settlements as illegal, while continuing to support the two-state solution.
As to more direct action against Israel, I think the government’s position is reasonable on this question. It is properly a matter for the Security Council to decide what happens next, in such a heightened context.
The pressure, however, will only keep rising, even if the Gaza conflict calms down. The West Bank and Jerusalem present, in many ways, the most intractable problems of all.
How should Australia respond to the ICJ ruling? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
