It’s the bombshell legal ruling that made it politically impossible for the Australian government to continue to delay imposing sanctions on Israeli settlers.
While much of the Australian media were focused on the latest twists in the US presidential election, the international court of justice delivered sweeping findings against Israel’s conduct in the occupied Palestinian territories, ratcheting up pressure on all governments to take a firmer line.
The ICJ ruling comes at a time of significant legal peril for the Israeli government over the way it has conducted its military response to Hamas’s 7 October 2023 attacks.
In a separate and ongoing case, the ICJ is weighing up South Africa’s allegations that Israel is committing genocide against the Palestinian people in Gaza. Additionally, the international criminal court will soon decide whether to issue arrest warrants against the Israeli prime minister, Benjamin Netanyahu, and defence minister (along with three Hamas leaders) for alleged crimes against humanity and war crimes.
These are significant accusations and the Israeli government denies them all. In some ways, however, the latest advisory opinion from the ICJ regarding the 57-year-long occupation of territories it seized in 1967, including the West Bank and East Jerusalem, has the potential to have the biggest impact.
That is because the ICJ focused on the legal reality of the situation prior to the latest war erupting nine months ago. The UN general assembly asked the ICJ for its opinion in late 2022 (Australia voted against the referral) and the end-result is far-reaching and damning for Israel.
The ICJ found decades of “unlawful policies and practices” have violated the right of the Palestinian people to self-determination. 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”.
Israel was obliged to evacuate all 695,000 settlers from the West Bank and East Jerusalem, the UN’s top judicial organ said. Even though Israeli settlements in Gaza were evacuated 20 years ago, the ICJ found Israel maintained control over the land, sea and air borders, and the 2005 withdrawal from the Gaza Strip “has not entirely released it of its obligations under the law of occupation”.
So what does this mean for countries like Australia that have traditionally maintained friendly diplomatic relations with Israel? The ICJ said countries were obliged “not to recognise as legal the situation arising from the unlawful presence” and must not “render aid or assistance” in maintaining that situation.
Enter Penny Wong with the announcement of sanctions for seven Israeli settlers and Hilltop Youth, an extremist religious nationalist movement.
The foreign affairs minister’s declaration on Thursday did not come out of the blue.
The Israeli ambassador, Amir Maimon, confirmed in early December that Australia had used “official channels” to raise the issue of settler attacks against Palestinians in the West Bank.
At the time, Maimon told Guardian Australia the Israeli government would “do its utmost” to bring perpetrators to justice.
A week later, however, the Australian government joined with many of its western allies to publicly complain that violent acts by Israeli settlers were “terrorising Palestinian communities” in an “environment of near-complete impunity”.
Thursday’s announcement includes asset freezes and travel bans for a narrow list of individuals the Australian government says have been implicated in violent attacks on Palestinians. It follows similar steps taken by other allies, and Wong had to be satisfied that each person was “engaged in, responsible for, or complicit” in serious human rights abuses.
A source with knowledge of the process said: “Some of the evidence presented to the minister included attacks against villagers with stones, clubs, arson, threatening people at gunpoint, as well as the use of drones to monitor and intimidate villagers.”
In fact, a section of the latest ICJ ruling said Israel’s “failure” to prevent or punish settler violence contributed to “a coercive environment against Palestinians”.
For now, the Israeli embassy in Canberra has responded cautiously to the sanctions, promising that Israel “will work to bring the extreme minority involved to justice”.
The Labor MP Julian Hill said on Thursday the announcement was significant because it broke “a long-held taboo in Australia that somehow the behaviour of Israeli extremists, no matter how outrageous, would attract no consequences”.
“Of course there is more to be done by the international community to impose direct consequences on Israel’s government for the ongoing expansion of illegal settlements that prevent a Palestinian state,” he added.
But the Greens and Palestinian advocates argued the Labor government must sanction Netanyahu and members of his cabinet for their policies and actions – not just a handful of individual settlers.
It’s impossible to ignore the heightened political context in Australia, where Labor is under increasing pressure from many of its grassroots members and supporters to take a more assertive stand against the war in Gaza.
Earlier this month, the first-term senator Fatima Payman quit the Labor party after crossing the floor to support immediate recognition of Palestine as a state. Two new organisations are seeking to mobilise Muslim voters in key seats at the next federal election.
This weekend’s New South Wales Labor conference is expected to consider a motion to recognise Palestine. Privately, some within the federal Labor caucus are pressing for the government to openly adopt terms such as genocide and apartheid when referring to Israel’s conduct.
Back in February 2022, when Amnesty International joined Human Rights Watch in accusing Israel of apartheid, Wong said Labor “does not agree with the use of the term apartheid”, in part because “it’s not a term that’s been found to apply by any international court”.
But that argument fell away last weekend, when the ICJ found that Israel’s laws and measures maintained “a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities” in breach of an international prohibition on “racial segregation and apartheid”.
For now, the Australian government is refusing to say whether it agrees with this finding. Its holding position is that it is “carefully considering the detail of the ICJ opinion”.
Soon, though, the government won’t be able to sidestep giving its view – and what it’s going to do about it.
Daniel Hurst is Guardian Australia’s foreign affairs and defence correspondent
