A couple months into the war in Gaza, an editorial cartoon depicted two people standing amid the smoldering ruins. One asks, “Where is international law?” The other points to the debris behind him, saying, “Under there.” The image spoke vividly to the moment we are in. The laws that were supposed to bind us to humanity’s core values were being violated daily, heaped like the rubble that is all that’s left of Gaza. Nearly ten months since the October 7 massacre of Israeli civilians, the war grinds on, half of the hostages are not free, the people of Gaza are starving and displaced with nowhere safe to go, and yet there is little sign that any of this will come to an end anytime soon.
Following the breakout of wars in Ukraine and Gaza, many have feared that we have now entered a new and even more dangerous world, one where the most basic protections in war are not just routinely violated, but appeared to have ceased to exist altogether. Now, however, there is some hope that international justice still matters. The International Criminal Court’s arrest warrant against Russian President Vladimir Putin may soon be followed by those against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant as well as the leaders of Hamas. The International Court of Justice (ICJ) is hearing cases on both wars, including South Africa’s allegations that Israel has violated the Genocide Convention. And last week, the ICJ issued a momentous ruling on the legal consequences of Israel’s occupation of the West Bank and Gaza.
The Advisory Opinion, which was set in motion several months before the October 7 attacks, was notable for its wide participation. At the written comments stage, 55 States, overwhelmingly from the Global South, made submissions. With the UN Security Council gridlocked, States from across Latin America, Africa, the Middle East and Asia are pursuing the few avenues still left to them. At a moment when international law has failed people in Palestine and Israel, the reaction from States has not been to abandon it as a failed project but have sought to restore its relevance – drawing on their own histories of international law as a tool for decolonization. This is part of a remarkable trend with the ICJ hearing a flurry of cases with a human rights focus, from the Gambia v. Myanmar genocide case to the forthcoming Advisory Opinion on climate change. More than 100 States are currently active at the ICJ – either as parties to a contentious case, interveners, or participants in advisory proceedings. The ICC is also experiencing a surge in interest from across the globe, with the Pre-Trial Chamber recently allowing nearly 70 States, organizations, and individuals to file amicus briefs in the arrest warrants case involving the situation in Palestine.
It is time now to take stock of what the ICJ has told the world, and the ensuing legal obligations.
In its conclusions, the Advisory Opinion confirms what Israeli, Palestinian and international human rights groups have spent decades calling out. The 57-year-long occupation is not a temporary situation, but a prolonged attempt to enclose the Palestinian people into a suffocating system that denies them their right to self-determination. The sweeping advances of illegal settlements have brought with them settler violence, displacement, and the exploitation of natural resources. The Advisory Opinion notes that the discriminatory system that cuts through the West Bank – carving up communities, assigning distinct roads while impeding movement through permits, and applying different laws to different people – amounts to a violation of the prohibition on segregation and apartheid.
While the Court ruled that there had been a violation of Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, a number of the judges went further in their individual declarations. “On the basis of the Court’s finding concerning the various policies and practices it is hard not to see that Israeli policies, legislation and practices involve widespread discrimination against Palestinians in nearly all aspects of life much like the case in apartheid South Africa,” wrote Judge Dire Tladi of South Africa. In their submissions to the Court, South Africa and Namibia – the two countries that endured that crime against humanity – also argued that Israel’s discriminatory policies breach the prohibition of apartheid.
The judges have also thrown down a challenge. They have not just detailed Israel’s violations of international law but also the legal consequences. Therein lies implications for third States and United Nations bodies. The Israeli government has already made clear that it “rejects” the Court’s views and will do nothing to implement its obligations to end the occupation, cease settlement activity, evacuate settlers, and make reparation. It is up to other States, particularly in the West, not to “recognize” or “render aid or assistance” to the occupation (paras. 278-79 of the Advisory Opinion). This will be a test of their avowed commitment to international law. Will they apply a single standard to all situations, or choose to persist with double standards, invoking international law when it suits them and discarding it when it doesn’t?
Critics of the ICJ have been quick to note that the Advisory Opinion is non-binding. That is true, but only up to a point. This is not a contentious case where parties are bound to comply with the judges’ ruling. But the obligations laid out in the ruling draw on the UN Charter, the decisions of the Security Council, international human rights law, international humanitarian law, and the law of State responsibility. The obligations laid out in these bodies of law are binding on all States that have ratified the relevant agreements or as a fundamental matter of customary international law. And now the world’s most authoritative judicial tribunal has laid them out with abundant clarity and shown how they apply to Israel’s occupation of Palestinian territory. No longer can the occupation be consigned to a zone of exception, where it has long languished, with evasive claims that it is too fraught with history, too complex to grasp, and too difficult to address.
Unlike what some States argued before the Court, the Advisory Opinion can strengthen moves toward a resolution of the conflict rather than impede them. There is an emerging consensus, among both supporters and critics of Israel’s policies, that the current situation is unsustainable. But there is no viable peace process on the horizon. A new process is needed, one that is grounded in international law and guided by the Advisory Opinion – a process that sets down a rights-based approach and envisions a future where both Israelis and Palestinians get the justice they are owed and the peace that they need.