A recent International Court of Justice ruling has made it clear that Israel’s occupation of Palestinian territories is illegal under international law. Israel has responded by rejecting the decision. This is part of a wider pattern of Israel routinely ignoring international human rights accountability, such as United Nations resolutions, including in response to its assault on Gaza. Despite the existence of a body of international human rights and humanitarian law, enforcement mechanisms remain weak. Much depends on pressure from other states, and their willingness to put human rights before self-interest. Israel’s allies should do so and urge it to comply with the court’s orders.

The advisory opinion that the International Court of Justice (ICJ) issued on 19 July couldn’t be clearer: it concludes that the Israeli state’s actions in the Occupied Palestinian Territory (OPT) violate international law in multiple ways.

Since the 1967 Six-Day War, Israel has illegally occupied Gaza and the West Bank. In the West Bank – as well as in the Golan Heights, internationally recognised as part of Syria – Israeli has illegally built and funded numerous settlements. Under the right-wing government of Prime Minister Benjamin Netanyahu, which came to power with the help of settler votes and includes settler politicians, the programme has been expanded. There are an estimated 150 settlements in the West Bank, including East Jerusalem, which Israel illegally annexed, along with 128 outposts not explicitly authorised by the Israeli government. The settler population reportedly exceeds 700,000.

The settlement programme affects the rights of Palestinians in many ways. Settlers evict Palestinians from their homes and land, and Israeli authorities severely constrain their freedom of movement through checkpoints, surveillance and permit requirements. Roads that serve settlements are closed to Palestinian vehicles, and further exclusion comes in the form of Israeli military firing zones dotted around the West Bank. All this makes it harder for Palestinians to work and farm, while settlements consume vital resources such as water. Settlers have also committed numerous acts of violence against Palestinians, which have increased during the conflict’s current phase. The effect of the settlements is to fragment Palestine, undermining its territorial viability as a nation and making a two-state solution more difficult.

When an occupying power moves its civilians into occupied territory, it’s a violation of the Geneva Conventions. Now the ICJ has made clear the extent to which Israel is breaking international law.

The ICJ, a major United Nations (UN) body often referred to as the world court, adjudicates disputes between states – for example, on border questions – and gives advisory opinions on questions of international law when other UN bodies ask it to. The UN General Assembly, in which all member states have a vote, asked for this advisory opinion in 2022.

The ruling consists of 14 separate opinions, most of which were overwhelmingly agreed by the court’s 15 judges. It’s far-reaching and couldn’t be more damning for Israel. It makes clear that Israel is illegally occupying the OPT, over which it has no sovereignty, and is violating international rules against apartheid and racial discrimination. It states that the human rights treaties Israel has ratified apply to its actions in the OPT, which means it’s in breach of them.

The ICJ ordered Israel to end its occupation, immediately stop building illegal settlements and remove those already built, pay Palestinians reparations and enable the return of displaced people. The implications go beyond Israel: other states are obliged not to help Israel maintain its illegal presence in the OPT.

Voices from the frontline

Rebecca Shoot is Executive Director of Citizens for Global Solutions.

 

The much-anticipated advisory opinion the ICJ delivered on 19 July was requested by the General Assembly on 30 December 2022 and addressed the question of whether Israel’s actions in the OPT violate international law. It concluded that they did indeed constitute multiple violations of international law.

While in other controversial or contentious cases the ICJ has opted to be more discreet, in this case it went quite far in giving its opinion. For example, while occupations are usually associated with military armed conflict, in this case the court said there were other ways in which Israel was illegally occupying the Palestinian territories, such as by applying its own law. It concluded this was also a violation of international law.

It also found Israel had violated human rights treaties, which apply extraterritorially when a state exercises jurisdiction outside its territory. This means the human rights violations found to have been committed by Israel are violations of international law.

The court also found that Israel’s discriminatory policies and unequal treatment of Israelis and Palestinians under the law violated several human rights treaties.

We expected the ICJ to find that Israel’s actions constituted a violation of international law, but we didn’t expect it to be so expansive in its reasoning or identify such a wide range of violations. It cited violations of international humanitarian law, international human rights law, the UN Charter and the principles of state sovereignty and self-determination. It represents a significant advance in international law and is likely to be studied and debated for years to come.

With regard to the implications for other states, the conclusions are also significant. First, with important nuances in the various judges’ opinions, the court reiterated the erga omnes nature – meaning towards states as a whole – of the international legal obligations Israel has been held to be violating. Various treaties, including the European Union Association Agreement with Israel, are also potentially in need of review, where Israel has been found to violate ‘essential elements’ with regard to human rights. This will have major implications for bilateral and multilateral agreements.

This advisory opinion is an important precedent, particularly in relation to other occupied territories, such as Ukraine. Now there’s no way Israel’s allies can pretend Israel has been a fair actor, even before the conflict in Gaza broke out.

But advisory opinions are not legally binding. They are meant to provide guidance on legal issues, but they don’t have the same enforceability as a binding decision in a contentious case. And even in those cases, the ICJ doesn’t have its own enforcement mechanism and relies on the cooperation of states. There is no international police force to enforce the court’s decision and tell Israel to get out of Palestine now.

The purpose of advisory opinions is to influence future policy and legislation. If Israel continues to ignore such a clear ICJ advisory opinion, it will further diminish its status under international law and its position within the community of states and the diplomatic world order.

 

This is an edited extract of our conversation with Rebecca. Read the full interview here.

Israel doesn’t listen

The question is whether Israel will pay any more attention than it has to previous international decisions. The ICJ’s ruling makes it abundantly clear that Israel’s human rights violations didn’t start with its reaction to the 7 October attacks. Nor did the international condemnation – or Israel’s attitude of dismissing it. Israel has a track record of ignoring international law and UN resolutions – including a 2004 ICJ advisory opinion that ordered Israel to tear down the segregation wall it has built in the West Bank.

The UN Security Council has largely failed to provide an adequate response because of the veto power of the USA, Israel’s staunchest ally. But in 2016, with the USA abstaining, it was able to pass a resolution stating that the settlements are illegal, in flagrant violation of international law and a major obstacle to peace and security. Clearly, Israel didn’t do anything differently as a result. There’s also little to show for 45 resolutions concerning Israel passed by the UN Human Rights Council.

Since the conflict’s current phase began, a UN General Assembly emergency session has passed two resolutions, in October and December, calling for an immediate ceasefire and humanitarian access. The Israeli state’s response was to categorically reject the resolutions.

In defiance of the resolutions, Israel’s assault on Gaza has continued, directly fuelling a humanitarian crisis in which it’s impossible for aid agencies and civil society organisations to deliver aid on the scale needed. Those trying to help aren’t safe either. According to the UN, over 250 humanitarian workers have been killed in Gaza since 7 October.

Characteristically, Israel immediately lashed out at the ICJ following its advisory opinion. Netanyahu’s office called it a ‘decision of lies’ and his far-right finance minister Bezalel Smotrich urged immediate formal annexation of the West Bank.

It was the same with another set of court orders. In January, the ICJ made an urgent interim ruling on a case filed by South Africa alleging that Israel was in breach of the Genocide Convention. The judges found there was a plausible risk of genocide and issued Israel with six orders, including to ‘take all measures in its power’ to ensure its forces comply with the Genocide Convention, facilitate humanitarian access and stop public incitements to genocide. Israel simply continued the slaughter.

Israel also chose that moment to launch a campaign to undermine UNRWA, the UN’s agency for Palestinians. An investigation has now found evidence that nine UNRWA staff members – out of some 30,000 – may have had some involvement in the 7 October attacks, and their contracts were terminated. But Israel’s allegations that the organisation has been extensively infiltrated by Hamas were found to be groundless. However, the damage had been done: the smears had the effect of diverting international attention from the ICJ’s orders in the genocide case and reducing potential pressure on Israel from its allies, many of which suspended their funding for UNRWA.

Voices from the frontline

Jonathan Fowler is Senior Communications Manager at UNRWA.

 

Unfortunately, the allegations gained enough traction to cause several UN member states, including major donors, to suspend funding to our organisation at a time when we’re dealing with the biggest humanitarian crisis in the region in decades.

This became a huge problem for us. Underfunding constrains our operations and puts our staff at risk. Our facilities have been affected by the war and repeatedly targeted.

We have also been refused permission by the Israeli authorities to deliver aid to northern Gaza, exacerbating the ongoing humanitarian crisis. In the West Bank, our staff are routinely intimidated and denied access to our offices in East Jerusalem. In East Jerusalem, our office has been the target of regular protests, vandalism and, most recently, arson attacks.

We believe in freedom of expression, but not in violence. Some people, including a deputy mayor of Jerusalem, have incited crowds. Their highly inflammatory language soon became real flames. We expected the deputy mayor to apologise, or at least acknowledge these weren’t the right means. But instead, he ramped up his aggressive rhetoric and singled out the next compounds to be attacked. We’re worried about what might come next and whether this campaign of intimidation and active violence might turn into something more serious.

All in all, the attacks and the disinformation campaign are aimed at dismantling the agency. But we are committed to fulfilling our mandate. We believe passionately in what we do and why we do it. And we count on the invaluable support of UN member states that have publicly affirmed that UN entities have diplomatic privileges and immunities that protect us and our mission.

 

This is an edited extract of our conversation with Jonathan. Read the full interview here.

A disproportionate response

Since the end of the Second World War, international law has evolved with the aim of ensuring that the atrocities of that time are never repeated. It includes international humanitarian law and human rights law, designed to protect people, including civilians during conflict, and to minimise suffering.

It’s hard to look at the world today and see anything but a lack of respect for international humanitarian and human rights law. Laws are clearly being flouted in Gaza and in so many other conflicts around the world, including in Myanmar, Sudan and Ukraine.

Israel claims to be acting in self-defence in its assault on Gaza, but one of the key principles of international humanitarian law is proportionality: parties to a conflict are obliged to assess the likely impacts of military actions on civilians.

There’s no indication of such a sober approach from Israel. Instead, it appears to be pursuing a punitive mission with no attempt to weigh the cost in civilian lives: the death toll in Gaza now stands at almost 40,000, the vast majority of whom are civilians, including many children.

As well as humanitarian workers, journalists are under attack. Journalists in conflict situations are civilians and as such have the same rights under international law. But they’re being slaughtered. So far, at least 113 journalists and media workers have been killed since 7 October, a number likely to be an underestimate. They include Al Jazeera’s Ismail al-Ghoul and Rami al-Rifi, killed in an Israeli airstrike on 31 July.

It’s a further sign of the conflict’s asymmetric nature that 108 of those killed were Palestinian. Some were caught up in the larger bombardment, but there’s evidence that others were deliberately targeted, which could constitute a war crime. Journalists have been attacked even when they’ve made sure they’re clearly identifiable by wearing jackets and helmets or travelling in vehicles marked ‘press’, something all sides in a conflict are obliged to respect.

Voices from the frontline

Carlos Martínez de la Serna is Program Director at the Committee to Protect Journalists.

 

During times of conflict and volatility, it is all the more vital to have a free press that is able to report on events as they unfold. Despite grave dangers, journalists provide timely, factual – often life-saving – information in a sea of disinformation. A free press is the ultimate antidote to the fog of war.

It is crucial for all warring parties in the Israel-Gaza war to recognise that all journalists and media workers are civilians under international humanitarian law, and their rights must be respected and protected. Deliberately targeting journalists or media infrastructure constitutes possible war crimes.

Authorities on all sides of this conflict should publicly commit to recognising, respecting and protecting journalists as civilians. Media facilities and equipment must also be recognised and protected from attacks.

We’re in the middle of the war so establishing conclusively whether journalists have been deliberately targeted by the Israel Defence Forces is extremely challenging. However, it does appear there is a pattern where journalists wearing press insignia have been killed while reporting. Our May 2023 report, ‘Deadly Pattern’, found that the majority of the 20 journalists then killed — at least 13 — were clearly identified as members of the media or were inside vehicles with press insignia at the time of their deaths.

Authorities on all sides — military or civilian — should convey to all security forces, internally and publicly, that the use of lethal force against journalists — who are civilians performing their jobs — is prohibited, and make clear that forces must refrain from opening fire on individuals with press insignia or vehicles marked as press.

We reiterate our call for clear and transparent rules of engagement to avoid the unwarranted use of lethal force against the press. Media credentials and press insignia must be respected by all warring parties, who should abstain from obstruction, harassment, shooting or detaining journalists.

The USA, Germany and other close allies of Israel must ensure that the Israeli Defence Forces — which have a history of lethal violence against journalists with zero accountability — establish and follow rigorous rules of engagement that can avoid journalist killings and other harms.

 

This is an edited extract of our conversation with Carlos. Read the full interview here.

International hypocrisy

There’s a key problem that the ICJ’s recent ruling points to: as an advisory opinion, it isn’t binding.

International law, including humanitarian and human rights law, has developed over decades, including through treaties ratified by most states and the creation of new bodies, such as the International Criminal Court (ICC), which prosecutes individuals for genocide, crimes against humanity, war crimes and the crime of aggression.

Civil society has worked to help develop the international legal architecture, successfully advocating for new treaties, such as the Rome Statute that established the ICC, pushing for strong language in UN resolutions and engaging with the mechanisms that hold states accountable for their human rights performance, such as the Human Rights Council’s Universal Periodic Review process.

But the problem remains that compliance mechanisms are weak. While states have ratified numerous international treaties, too often national leaders assert state sovereignty as a priority principle and make self-serving decisions. They use multilateral arenas such as the UN not as a space to solve common problems, but to advance their own agendas.

Voices from the frontline

Marco Sassòli is Professor of International Law at Geneva University, Switzerland.

 

International humanitarian law is the part of international law aimed at reducing the extent of violence that unfolds during armed conflicts and providing some level of protection for those not directly participating in hostilities. It applies to both international and non-international conflicts. Its rules are outlined in the 1949 Geneva Conventions and their 1977 Additional Protocols and supplemented by customary law.

Although there’s room for improvement, the substance of existing rules is quite good. The main problem is lack of enforcement. While the ICC acted very quickly on Russia, they’ve been working on Palestine since 2015 and we haven’t seen any progress. Enforcement mechanisms don’t seem to be applied consistently.

States are reluctant to create a more efficient system because they worry that one day it could be used against them. For an enforcement mechanism to be effective, we need those who conduct war to accept it. There’s no use in having an efficient system if it is only accepted by a few countries that never engage in war.

Even so, there’s still hope that looking back at the horrors and atrocities committed in Gaza and Ukraine, states will have a similar reaction as they did in the aftermath of the Second World War, when they agreed to adopt the Geneva Conventions. The horrors we are now witnessing in real time that are amplified by the media may result in a turning point.

International humanitarian law can and should also be strengthened through education. We need to educate young people that even in war there are rules that apply to everyone, everywhere, regardless of whether they’re in the right or not. If the public accepted and absorbed this message, there’s hope that atrocities such as the ones we are seeing today wouldn’t be allowed to happen.

 

This is an edited extract of our interview with Marco. Read the full interview here.

Naked international hypocrisy has been on display ever since the conflict’s current phase began. A slew of western states that led the justified international condemnation of Russia’s full-scale invasion of Ukraine have pulled their punches when it comes to Israel. Germany, the UK and the USA are among the countries that refused to back both General Assembly resolutions calling for a ceasefire in Gaza. And while several western states supported the genocide case The Gambia brought against Myanmar, they’ve criticised South Africa’s case against Israel.

There’s a broader pattern of hypocrisy at play. Russia has repeatedly used its Security Council veto to prevent action on its war on Ukraine. There also seems little prospect of ICC justice in either conflict, despite an arrest warrant having been issued against Vladimir Putin for war crimes and one having been requested by the ICC prosecutor against Netanyahu, his defence minister, Yoav Gallant, and three Hamas leaders. Israel and Russia are among the many states – along with China and the USA – that have consistently refused to ratify the Rome Statute.

It’s true that recently the scale of the atrocities committed by Israel has become so obvious that allies such as the UK and the USA have started to try to curb its worst excesses. The USA pressured Israel into scaling back what had seemed an imminent all-out assault on Rafah, and behind the scenes there’s now a concerted effort to stop the war spreading further across the region. The UK’s new government has at least reportedly dropped its challenge against the ICC prosecutor’s request for an arrest warrant against Netanyahu, and has belatedly restored funding to UNRWA. But this is nowhere near enough.

Olympic double standards

As the sporting spectacle unfolds in Paris, charges of hypocrisy can also be levelled at the International Olympic Committee. Because of the war on Ukraine, athletes are banned from competing in the 2024 Olympics under the flag of Russia and its close ally Belarus. Yet 88 Israeli competitors are free to take part.

Among them is one of Israel’s two opening ceremony flag-bearers, Peter Paltchik, who went on to win a bronze medal in judo. He’s reported to have autographed Israeli bombs used in Gaza. In the run-up to the Olympics, other Israeli athletes dedicated their sporting successes to their country’s soldiers. Meanwhile, the Palestinian Olympic Committee says that around 400 Palestinian athletes are among the dead.

The Olympic ban on athletes from Belarus and Russia wearing their countries’ colours is far from the first. South African athletes were long barred from competing under apartheid, and those from Germany and Japan were banned in the aftermath of the Second World War.

As it stands, Israel is able to present itself as just another country committed to the principles of the Olympic Charter, which include the promotion of a peaceful society and human dignity and anti-discrimination.

Sporting events are important for national prestige and international reputation; that’s why countries compete to host competitions and put money into training team members. Many in civil society feel that, given the circumstances, Israel should have been treated like Belarus and Russia and denied the platform offered by the Olympics.

Room for improvement

The decisions of international institutions have value even if they can’t be enforced. They offer opportunities to expose states’ human rights failings and to advocate for better performance. No matter how badly they behave, states generally like to present themselves as good international citizens. But much depends on other states exerting pressure. The ICJ’s advisory opinion makes it impossible for democratic states that claim to place a high value on human rights to pretend that Israel plays by the rules. In the wake of the ruling, all states should urge Israel to start complying with international law.

There’s an ongoing need to keep developing the fabric of international law, building out from the current patchwork, to strengthen the norms states should follow if they want to show they’re playing by the rules, and to raise the costs of non-compliance.

There are clear areas for improvement. One is to reform the Security Council to reduce the use of vetoes by its five permanent members. Another is to expand the jurisdiction of the world’s top courts. So far, only 124 of 193 UN member states have ratified the Rome Statute, which grants the ICC jurisdiction. And only 74 have accepted the ICJ’s compulsory jurisdiction, which obliges them to respect its rulings.

There’s the same problem when it comes to international recognition of Palestine. Currently 135 states recognise Palestine, but many western states don’t. Without recognition, Palestine is denied full statehood and the ability to participate on an equal footing in the international system, making it harder to recognise and protect the rights of Palestinians and preventing progress towards a two-state solution.

The ICJ’s ruling also means that states that have cooperation agreements with Israel should now review them. They should consider whether they’re violating the ruling by helping Israel maintain its illegal presence in the OPT.

The European Union (EU), for example, has a comprehensive association agreement with Israel that includes as key elements respect for human rights and the principles of the UN Charter; if these are violated it allows the EU to suspend the agreement. It’s now impossible for the EU to pretend these principles are being respected.

Civil society will keep pushing for reform on all these fronts, working for a world in which the human rights of all are respected and those who transgress pay the price. The slaughter in Gaza offers sickening evidence of how far there is still to go.

OUR CALLS FOR ACTION

  • The international community, including Israel’s allies, should urge Israel to comply with the orders issued by the International Court of Justice.
  • The government of Israel should immediately agree to a ceasefire and unimpeded humanitarian access.
  • All states should accept the compulsory jurisdiction of the International Court of Justice, join the International Criminal Court and recognise Palestine as a state.

For interviews or more information, please contact research@civicus.org

Cover photo by Selman Aksunger/Anadolu via Getty Images