The recent opinion of the International Court of Justice (ICJ) on Israel’s occupation of Palestine drew little attention in Australia. The silence perhaps reflects Australians’ identification of law with enforcement. By these standards the judgement of the International Court was a mere opinion to which the United Nations General Assembly of the United Nations may decide whether and how to give effect. For many Australian politicians and commentators, too, questions of legality are irrelevant in international relations. Disputes between nations are resolved by power and not by law. The judgements of international agencies are no more than an exercise in public relations.
The ICJ opinion, however, is significant because it is carefully and thoroughly argued, and because international law is based on the ethical conviction that all human beings are of equal value. Nations and their representatives who take pride in their democratic tradition boast that adherence to the rule of law distinguishes them from totalitarianism. They will find embarrassing the legal judgement by an impartial Court that an allied nation has consistently violated international law. The opinion may not be enforceable, but it will reverberate in international institutions and ultimately in public opinion.
Although the questions put to the Court were asked prior to the Hamas invasion in late 2023, the opinion also sets standards for comment on the War in Gaza. I shall summarise the opinion by drawing on and sometimes paraphrasing its accompanying summary. The Court first established its right to speak, established by the request by the General Assembly for an opinion on two questions. The first concerned the legal consequences arising from certain policies and practices of Israel as an occupying power in a situation of belligerent occupation since 1967. The second concerned how such policies and practices affect the legal status of the occupation in light of international law, and the legal consequences which arise from this status. The Court was satisfied that these were legal questions. It also established its discretion to make an opinion on a bilateral dispute in which one side does not consent, dismissed as speculative any arguments that it risked inflaming the dispute, argued that it was sufficiently well informed to make a judgment, and that any bias in the formulation of the questions could be excluded.
In coming to its opinion, the ICJ measured the practices of Israel in the territory it had occupied against the provisions of international statutory and customary law. Under these provisions the inhabitants of the occupied land may not be removed by force except in emergency, must be able to return, must not be discriminated against, must be free to form its government and institutions, and enjoy for their own benefit and not for that of the occupying power the resources of their territory.
In its findings, the Court decided that in all these areas the Israeli occupation had violated international law by encouraging settlements on occupied land, destroying houses belonging to Palestinians, by effectively controlling Palestine and weakening its institutions. Israel remained capable of exercising, and continued to exercise, certain key elements of authority over the Gaza Strip, including control of the land, sea and air borders, restrictions on movement of people and goods, collection of import and export taxes, and military control over the buffer zone. Furthermore the violence by settlers against Palestinians, Israel’s failure to prevent or to punish it effectively, and the excessive use of force against Palestinians contributed to the creation and maintenance of a coercive environment against Palestinians.
In summary, contrary to International law, Israel occupied by force territory that was not its own and has since not yielded that territory but has maintained control over it and exploited its resources for its own purposes. In doing so it has violated the law governing occupation in which the occupying power must govern in the interests of the occupied people, respect its self-government and their human rights. Such prolonged and exploitative occupation cannot be justified by appeal to the occupiers’ security, nor is it justified by the length of time that it has lasted.
The ICJ then dealt with its consequences for Israel of this judgment, stating that it is obliged to bring an end to its presence in the Occupied Palestinian Territory as rapidly as possible and cease to act unlawfully by ceasing all new settlement activity, repealing laws that created or maintained the unlawful situation, including those which discriminate against the Palestinian people in the occupied Palestinian Territory. It is also bound to make reparations for the damage done.
'The history of violence provides both the people of Israel and of Palestine with reasonable fear for their security. To reach a mutually acceptable and enduring settlement will be like unscrambling an egg that has already been fried.'
The Court also spelled out the consequences for other States and international agencies. They may not recognise as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory. Neither may they render aid or assistance in maintaining the situation created by the occupation. Finally, the Court left it to the United Nations Security Council decide what further action is required to put an end to the illegal presence of Israel, taking into account its advisory opinion.
The ICJ opinion is a devastating legal judgment on the actions of Israel in Palestinian territory. Though the Court does not explicitly consider Israel’s continuing actions in Gaza, many of them would likely be adjudged to violate international law.
Although the judgment imposes legal obligations on Israel and the international community, it did not consider how they might be met. It left it to the parties and to the international community to negotiate a settlement in which the rights and the security of the people of Israel and of Palestine can be assured. This challenge is made the greater by the historical claim of each party to the same land and by the aggravation of mutual hatred by military actions of Israel and Palestinian groups over many years. The history of violence provides both the people of Israel and of Palestine with reasonable fear for their security. To reach a mutually acceptable and enduring settlement will be like unscrambling an egg that has already been fried.
The ICJ opinion highlights the long-term challenge to Israel’s place in the world. The pressure on public opinion in the West arising from the critical judgment, together with the radicalisation of nationalist politics in Israel and of populist policies in the West, already threaten to weaken military support for Israel at a time when it relies most on it. For its lasting security Israel will need to build bridges to nations in its region. It cannot do that without respecting the rights of its Palestinian neighbours.
Other nations, including Australia, should not take sides in the present war in Gaza, but by refusing to supply arms and by other actions should press for the end of military actions that build and intensify mutual hatred. They should also press for negotiations that might lead to a lasting peace.
Andrew Hamilton is consulting editor of Eureka Street, and writer at Jesuit Social Services.