It’s easy to see why the advisory opinion of the United Nations International Court of Justice (the World Court) might give Foreign Minister, Penny Wong, a few matters for consideration.
Some of the Court’s findings include that Israel’s continued presence in the Occupied Palestinian Territory is unlawful, that all states are under an obligation not to recognise as legal the situation arising from the unlawful presence of Israel and that states are under an obligation not to render aid or assistance in maintaining the situation created by the continued presence of the State of Israel in the Occupied Palestinian Territory.
However, she should be relieved that the Court seems to have anticipated that and has provided guidance in Part VII.B of its Opinion (“Legal consequences for other States”), including requiring other states:
…to abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory or parts thereof which may entrench its unlawful presence in the territory; to abstain, in the establishment and maintenance of diplomatic missions in Israel, from any recognition of its illegal presence in the Occupied Palestinian Territory; and to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory
Apart from the question of Australian support for Israel in terms of military, “defence” or technology contracts or other commercial arrangements that fund Israel or otherwise assist it in performing its illegal activities, she might also consider what sanctions might appropriately be imposed by Australia and all other countries that claim to support an international rules-based order to compel or at least encourage Israel’s compliance with the Court’s findings.
The likelihood of Israel voluntarily complying with the Court’s orders is nil, as was made clear by Netanyahu’s contumelious response to the orders of the World Court: “The Jewish people are not occupiers in their own land… No absurd opinion in the Hague can deny this historical truth or the legal right of Israelis to live in our own communities in our ancestral home. …”
Although the Court’s ruling was not in any way directed at the events of 7 October 2023 it will have incidental consequences for viewing the events of that day and subsequently in a proper historical perspective.
Israel consistently asserts its right of self-defence as justifying its invasion and destruction of Gaza and the killing en masse of its citizens, and from Day 1 that assertion has ingenuously been picked up and supported by its Western lackeys.
Certainly Penny Wong is correct to say, as she did, that “We have been consistent in Israel having a right to self-defence” but as Israel has been found to be an occupier at all relevant times it is under particular international law duties to those under its occupation.
Although international law recognises a right to self-defence, that defence’s availability to occupying powers – if it exists and can be invoked in this case at all- is limited and nuanced. (See for example the ICJ Advisory Opinion on the Legal Consequences of the Construction of a wall in Occupied Palestinian Territory(2004)). It must be balanced with its responsibilities and obligations as the occupying power under international humanitarian law. Under the Fourth Geneva Convention (1949) the occupying power must ensure that any actions allegedly taken in self-defence are necessary and proportional, and it must prioritise the protection of civilians and maintenance of order in the occupied territory. Israel is also subject to Additional Protocol 1, Art.53 which protects civilians from attack unless they are taking a direct part in the hostilities.
Instead of complying with those duties Israel’s actions to date have killed tens of thousands of innocent civilians and displaced more than a million others, and physically destroyed much of Gaza’s food, water, energy, educational and cultural infrastructure.
This murderous rampage is continuing:
Even less egregiously inhumane conduct indeed gave rise to the ICJ finding of a plausible case of genocide against the occupied people of Gaza.
Another important aspect of the Court’s recent Advisory Opinion is the findings (paras. 224-229) about Israel’s apartheid practices against the Palestinians in the West Bank and East Jerusalem.
In para 280 of its Advisory Opinion the Court considered it important to stress “the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli-Palestinian conflict, which continues to pose a threat to international peace and security, to a speedy conclusion, thereby establishing a just and lasting peace in the region”
In light of the findings that Israel is guilty of a breach of anti-apartheid laws and of building illegal settlements on Palestinian land, the fact that it has wilfully disobeyed the orders of the ICJ in relation to its invasion of Rafah, the fact that it is facing the real risk of an adverse finding against it on a plausible case of genocide, and its openly brazen contumacy in the face of the orders of the highest court in the world and the entreaties and criticisms of allies and foes across the globe, topped with the risk that its actions will provoke a dangerously widespread war, what is rest of the world to do?
In the face of Israel’s intransigence the only way to secure Israel’s compliance with international law is the application of political and economic sanctions along the lines of those imposed upon South Africa which led to the deconstruction of that apartheid State.
The sooner those sanctions are in place the better for world peace given that Israel’s belligerence is the source of the perceived obligation of Western nations to amass forces in the Middle East and of the actions against it by Hezbollah and Ansar Allah (the Houthis), each entity having stated consistently that they would cease their attacks on Israel if it ceased its attacks on Gaza.
Rather than take that course Israel has committed flagrant breaches of international law by actions like the bombing of the Iranian embassy in Damascus and it has attempted to drag Iran and hence the US and its minions into a wider war in which no-one wishes to be involved.
Kellie Tranter
Kellie Tranter is a lawyer, researcher, and human rights advocate. She tweets from @KellieTranter
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