The ICJ delivered its advisory opinion on 19 July regarding the legal consequences of Israel’s occupation of Palestinian territories. Readers are by now familiar with the basic rulings of the Court, not from mainstream media, I might add. The ICJ’s judgment has been reported, but its consequences, and particularly for Australia, have barely raised a comment.
It is appropriate to summarise. Israel’s occupation of Palestinian territory is illegal and must be ended as soon as possible. All settlements with their settlers must be evacuated, and reparations for damage caused must be forthcoming. All states in the community of nations must conduct themselves in their dealings with Israel in accordance with these rulings. One significant ruling should be noted. Para.229 finds that Article 3 of CERD is breached: in other words, apartheid exists. CERD stands for the International Convention on the Elimination of All Forms of Racial Discrimination.
One point of note for Australians is the fact that the Australian judge, Hilary Charlesworth, appended a declaration to the Advisory Opinion. It is an addition to the judgment, principally addressing the apartheid issue, of which Australians can be proud: “Israel’s occupation “does not qualify as an act of self-defence”: 20 July 2024.
Mention should be made of the extent of agreement in the 15 member Court. All rulings had the support of at least 11 of the 15 judges, some rulings were supported by 12, and some by 14. So, there was clearly a strong consensus, and it is also significant to note that the Australian, American and German judges each voted in favour of all rulings, notwithstanding their governments’ pro-Israel positions.
There is much scope for comment, however, on where to go from here.
On that score it will be recalled that Advisory Opinions, albeit carrying great moral and legal authority, are non-binding. That is not to say that they might not be acted upon by the General Assembly or the Security Council in such a way as to make them binding upon member states of the UN, including those states directly affected. Given that the opinion was sought by the General Assembly, it is hard to imagine that the General Assembly will not act to implement it, and at the earliest possible time.
It must also be said that this ruling is bound to have significant immediate consequences, particularly in trade and diplomacy. The Court specifically said that states should not recognise Israel’s unlawful presence in occupied territory, nor should they render aid or assistance in maintaining it.
What has been the response of Israel? To start with, there was an anticipatory response. Israel was clearly anticipating an adverse judgment. On 16 July, Finance Minister Smotrich called on Prime Minister Netanyahu to annex the West Bank should the ICJ declare Israeli settlements illegal. Then, on 18 July, the Knesset voted 68-9 to reject the establishment of a Palestinian State. The UN immediately re-acted by issuing a statement that a two-state solution cannot be voted away by the Israeli Parliament. After the judgment Prime Minister Netanyahu has asserted that the Court’s ruling is “absurd”; and how could it be said that Israel is occupying land which is its own – land given to it by God! Non-compliance with the judgement by Israel can therefore be presumed. This would justify the immediate sanctioning of Israel by Australia, the recall of our ambassador, and the expulsion of theirs.
What of other countries? It will be recalled that at the hearing stage, the USA and the United Kingdom urged the Court not to proceed.
The position of the USA was that borders should be the subject of negotiation, and that by proceeding the Court might inhibit the role of the Security Council in the management of such negotiations. Further, such negotiations needed to address Israel’s security. The US spoke of a resolution based on the “land for peace” principle.
Some 30 States were specific in their submissions. They asserted that international law called for a two-State solution on the ’67 borders with East Jerusalem as the capital of the State of Palestine.
The USA proposed a two-state solution and pointed to Security Council resolutions 242 and 338 as the basis for such. Those resolutions, dating respectively from 1967 and 1973, indicate acceptance by the US of the ’67 borders although the US could not resist proposing the possibility of negotiations.
What of the other permanent members of the Security Council? It is appropriate to consider them because the matter may well go from the General Assembly to the Security Council where they have vetoes. China proposed a two-State solution arrived at through negotiation. Russia drew attention to the fact that it has “stable relations” with Israel, but it claimed the need to address the “root cause”. It proposed two States on the ’67 borders but then proceeded to suggest the need for direct negotiations; perhaps referring to peripheral issues. France was middle of the road. The United Kingdom’s position was unique, not going beyond its submission that the Court should exercise its discretion not to give its opinion at all.
The Court has, by its decision, largely accepted the majority view, but it has acted to thwart Israel’s stance by rejecting any reliance upon a negotiated outcome.
Conclusion
The decision will go back to the General Assembly. Of course, resolutions of the General Assembly have limitations. But a resolution will definitely raise questions for every State member of the UN as to its obligations.
Consider the position of the USA. The ICJ’s decision calls for an end to occupation, two States on the ’67 borders with East Jerusalem as Palestine’s capital, dismantling of settlements and reparations. It will be difficult for the US not to accept such. The US is forever talking up its “rules-based international order”. The US could not conceivably say that the ICJ and the General Assembly of the United Nations are not significant cogs in that order. After all, the ICJ was established by the Charter of the United Nations, signed in San Francisco in June 1945, and provides that all Member States of the UN are ipso facto parties to the Court’s Statute. On Saturday last the US State Department said that the judgment could “complicate efforts to resolve the conflict”. Ho hum! What might those efforts be, given Israel’s outright and publicly declared intransigence?
As for Australia, it did not appear at the ICJ. But it seems that the present government has nowhere to run. It must now accept that apartheid exists. It must now proceed to recognition of the State of Palestine – it must join the 145 states which had already done so prior to the ICJ judgment. It can’t be too hard to do, given Albanese’s and Wong’s repeated support for a two-state solution. A failure to do so could only result in a loud demand as to what Israel and its backers have over our country, and its government.
It is of interest to note Senator Fatima Payman’s demand that Australia must take decisive action, including calling for an immediate ceasefire, recognition of the state of Palestine, imposing sanctions, and halting trade with Israel.
The silence, not only of our media, but critically, of the Albanese government is deafening!
For more on this topic, P&I recommends:
Paul Heywood-Smith is an Adelaide SC of some 20 years. He was the initial chairperson of the Australian Friends of Palestine Association, an incorporated association registered in South Australia in 2004. He is the author of The Case for Palestine, The Perspective of an Australian Observer published by Wakefield Press in 2014.
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