Last week’s decision by the International Court of Justice on Israel and Palestine is of profound importance. Coming so soon after its rulings on genocide, the judges are once again saying loud and clear that law matters in the international sphere, that neither this court nor the rules it upholds are any longer (if they ever were) the creature of global north powers, that states having signed up to the international legal order need now to buckle down to the obedience to law that this requires.
The matter now rests with others: the judges have no police arm to enforce their rulings. If nothing happens, the court will be exposed as an empty vessel, the legal order that it purports to uphold subjugated to international stasis and national self-interest.
The findings in this advisory opinion, achieved with strong majorities on all points, go beyond what was expected by keen observers and exceed even the wildest imaginings of partisans for Palestine. The very presence of Israel in the Occupied Palestinian Territory (OPT) is declared to be illegal; Israel is under an obligation to bring to an end its unlawful occupation as rapidly as possible; it must cease all new settlement activities immediately, evacuating all settlers from the Territory; and it must also engage in proper reparation for the damage caused to all the natural or legal persons affected by its long-term illegal activity.
The court has also insisted that all states are under an obligation not to recognise and not to render aid or assistance in maintaining the unlawful presence of Israel in the OPT. Both the UN’s General Assembly and the Security Council have now also been instructed by the court to consider what further action is required to bring to an end, as rapidly as possible, the situation it has described in its ruling.
Making his own separate declaration, the court’s president, Nawaf Salam, observed the effects of Israel’s occupation to “have little difference from those under colonial rule, which has been firmly condemned under international law”. Furthermore (as though this were not enough) Salam also considered “Israel’s commission of inhumane acts against the Palestinians as part of an institutionalized régime of systematic oppression and domination”, with its intention to maintain that regime, being “undeniably the expression of a policy that is tantamount to apartheid.” (The court’s own judgment implied this but skirted around the A-word.)
As with its genocide rulings, the court has drawn on a whole range of UN sources to demonstrate its case, including its own rulings on this and other issues which it has delivered down the years. The surprise lies not in the substance of the case but rather in the absence of procedural dodges, of weasel words, of (as one concurring judge Dire Tladi put it) any hook upon which to hang a “cloak of legality” behind which Israeli action could hide.
The Conservative government tried just such an evasive move in the weeks before the general election, with the intention of preventing the issuance of arrest warrants against Netanyahu and Yoav Gallant. This line now appears to have been resiled by the new Starmer administration and, even if other countries persist, it seems altogether improbable after the ICJ ruling that the International Criminal Court (responsible for such warrants), will allow itself to be manoeuvred into such a procedural dead-end.
Those warrant applications arose out of Israel’s ongoing destruction of Gaza, and though beyond the reach of the ICJ ruling (having arisen after the case was initiated), the shadow of Gaza lies over these proceedings. Israel has long benefitted from the benevolent inattention of the US-led international community: make the killing of Palestinians quick while pretending you care about law; in return we will look the other way and clean up the murderous mess when you dart back behind your wall and your iron shield. Israel’s extraordinary destruction across the whole of Gaza and its escalation of a murderous assault on Palestinians in the West Bank has exposed a deeper and well-entrenched venality which the ICJ has now felt compelled to lay bare. (Some might say “finally”, and certainly this recognition occurs today as a result of the prodigious efforts of advocacy groups and certain state actors).
The Israelis refused to engage properly in legal argument in the case, and Netanyahu’s rejection of the ruling is honest, even if it is supremely chilling: effectively “this is our land; Palestinians simply don’t count.” He might have added: “to Hell with law; we embrace our pariah status.” Whether he and Israelis more generally feel the same way after pariahdom begins properly to bite remains to be seen.
The ruling may be “advisory” but it is precisely because it clarifies rather than makes new law that it has the whiff of obligation about it. President Salam reminded his colleagues and the watching diplomatic world of his late colleague James Crawford’s remark about how it was “important to note that the obligation to ensure respect [for the law] is not satisfied by mere diplomatic protests.”
The EU and allies of Israel in the global north will come under intense pressure to recalibrate their relations—economic, legal and political—with the state. So will universities and corporations and cultural organisations. Where will all this leave the United States and the international legal order it has overseen for so long? With Biden moving off the scene, how long will the US persist in committing diplomatic suicide on behalf of a country that is bent on Armageddon?
Already China has pulled off an agreement between the key Palestinian factions, and promises to be further engaged in pursuit of a just peace in the region. Biden may have airily dismissed the International Criminal Court’s arrest warrant process as beyond the court’s jurisdiction, but this ICJ judgment will be harder to explain away—unless, that is, you are prepared to reject international law completely, which is not Biden’s position (albeit it might be that of a Trump/Vance administration).
President Salam asserted that “[b]y stating the law, the Court [was providing] the various actors with a reliable basis for a just, comprehensive and lasting peace.” Will that basis be a foundation or just part of the discarded flotsam and jetsam of a post-legal world?
