Doug Henwood
Jacobin / August 21, 2024
Any political party that claims to be concerned with the rule of law should be using the recent International Court of Justice ruling to demand an end to the occupation and Israeli’s bloody, unlawful conduct in Gaza and across Palestine.
For anyone watching the Democratic Party leadership agonize over its support for Israel’s war making, it can be easy to forget a very basic fact about that war making that isn’t brought up often by major elected officials or mainstream media: it’s illegal. The International Court of Justice ruled on July 19 that Israel’s occupation of Gaza, East Jerusalem, and the West Bank is illegal. It’s only the latest in numerous similar recent and historic rulings, as legal scholar Heidi Matthews explains in an interview with Doug Henwood on his Jacobin Radio show, Behind the News. Matthews is an assistant professor at Osgoode Hall Law School at York University and an expert in international criminal law and the law of war.
You can listen to the conversation, which took place before the Democratic National Convention, in full here. It has been edited for length and clarity.
Doug Henwood: On July 19, the International Court of Justice [ICJ] issued a ruling about Israel’s occupation of Gaza, East Jerusalem, and the West Bank. What exactly did they say ?
Heidi Matthews: The main takeaway is that the court found Israel’s prolonged military occupation of the Palestinian territory to be unlawful and said that Israel is under an obligation “to bring to an end its unlawful presence” in the territory “as rapidly as possible.” That is on the basis of a number of extremely serious violations of basic rules of international law caused by Israel’s policies and practices in the Occupied Territory. This is the first time that the court has made such a clear finding of illegality around the occupation itself.
In 2004, the court had the opportunity in its advisory opinion on the legality of the wall that surrounds, transects, and fragments the West Bank and East Jerusalem. In that case, the particular policy and practice of building the wall basically to protect the settlements was found to breach Israel’s obligations under international humanitarian and human rights law. Now we have this much broader finding that is about the occupation in its totality.
It’s really a sweeping finding. The headlines have focused on Israel’s settlement policy, which has long been established as illegal in international law. That in and of itself is nothing new. But the broader occupation being unlawful is. The court also clearly indicated that Israel retains obligations to the population of Gaza under the law of occupation, to the extent that Gaza remains under its effective control. Also striking is the court’s finding that Israel’s policies and practices violate the human rights law prohibition on “racial segregation and apartheid.”
Doug Henwood: How does it relate to the earlier decision on the genocide case brought by South Africa, if at all ?
Heidi Matthews: The genocide case that South Africa has brought against Israel is still in its early stages. Three of the decisions in that case have been around the question of provisional measures, which refer to actions the court mandates Israel take in order to protect the rights that are at stake: namely the right of the Palestinian people not to be subjected to acts of genocide in the interim between when the case was brought at the end of last year and when it gets decided, which will be some time from now.
That’s a contentious case. It’s a case that South Africa has brought as a state against Israel as a state. The advisory opinion, by contrast, is the result of the General Assembly having asked the court to provide its opinion on the legality of the occupation and the resulting legal consequences for both Israel and other states. It has a slightly different legal status.
A lot of folks are talking about it as a nonbinding ruling of the court, whereas the provisional orders the court has made in the genocide case are binding. That’s true. But the court’s jurisdiction to issue advisory opinions, which is rooted in the UN Charter, exists so that the court can help UN bodies and other intergovernmental organizations understand how to do their job under applicable international law. The court still does make a series of actual findings and still does pronounce on what it believes the law to be in the circumstances.
What we see with this advisory opinion is an emphasis on the rights violations occasioned by Israel’s policies and practices. I’m talking about Israel’s settlement policy, which has included the large-scale confiscation of Palestinian land and violated the Palestinian people’s right to sovereignty over natural resources.
Taken together, the court considers that settlement expansion and the construction of large-scale infrastructure associated with that expansion, including the intricate road network connecting the settlements to Israel, amount to the annexation of large parts of the Palestinian territory. This is a violation of one of the most basic tenets of international law enshrined in the UN Charter, namely, the prohibition on the acquisition of territory by force.
Annexation, combined with various policies that restrict Palestinians’ movement within the territory and otherwise create an “inhospitable environment” for the Palestinian population — including the application of different juridical systems in the West Bank depending on whether you’re Israeli versus Palestinian; the exploitation and appropriation of natural resources to the benefit of Israelis and the detriment of Palestinians; and the enforced economic dependence of the Palestinian territory on Israel — all work together to violate the right of the Palestinian people to self-determination.
The Palestinian people, like all peoples, have an inalienable right to self-determination under international law; in other words, it has the right to “freely determine its political status and to pursue its economic, social and cultural development.” This opinion lays out, in painstaking detail, the myriad ways in which Israel has worked, intentionally, to erode and destroy the integrity and political independence of the Palestinian territory and people. And all of these policies and practices, taken together, give us the background context for understanding the real impact of what Israel is doing in Gaza.
The court is telling us that the integrity of the Palestinian people as a people has been undermined and infringed, not just by what Israel has done in Gaza since October 7, but by what it’s done for the last fifty-seven years across the entirety of the occupied territory.
Doug Henwood: What direct legal effects does this occupation decision have ?
Heidi Matthews: This gets us back to the binding/nonbinding part. The court elaborates Israel’s obligations just like in 2004. Israel has clearly said it doesn’t think that the court even had jurisdiction to issue this opinion, and Israel has no intention of complying with it in any way. That was the case in 2004, and it’s the case now twenty years later.
I’m not expecting there to be any positive impact on the ground within Israel. Since this opinion came out, there has actually been an intensification of violence in Gaza. We saw that in the aftermath of each of the decisions ordering provisional orders in the genocide case as well.
What I’m looking at in terms of impact is not so much Israel (although we should be concerned with the way in which the Israeli government claims victimhood based on these decisions of the ICJ and then further supports its right to do whatever it wants to in Gaza), but really for every other state who is a member of the United Nations. This is one area where the work of the ICJ is quite different from the work of the International Criminal Court [ICC], which also has proceedings separately underway.
The ICJ is often referred to as the “world court” because it is the highest judicial body in the UN system, which is the central infrastructure of international law after World War II. In this opinion we see the court clarifying its legal position on some of the most important obligations that states can owe toward one another. These obligations — referred to as “erga omnes” — concern rights that are so fundamental that all states are understood to have an interest, and a role, in their protection. These sorts of obligations are actually owed by each state to every other state.
As such, Israel’s violations of the Palestinian people’s right to self-determination and its unlawful annexation of large portions of Palestinian territory create obligations for all states not to recognize the occupation as lawful and to bring these violations to an end using lawful means.
This opinion clarifies the obligations for every other state in the world vis-á-vis Israel’s continued presence in the occupied territory. So not only has the occupation been found to be illegal, but the court says that Israel is under an obligation to bring it to an end as rapidly as possible, which entails not only evacuating settlements but removing its presence entirely from the occupied Palestinian territory.
All these other states — the US, Canada, the UK, Germany, who are the main states propping up and giving financial and material aid and assistance, but also moral support and encouragement to the Israeli government, not just in its war in Gaza, but with respect to the occupation in its entirety [by leaving it at verbal condemnations and taking no punitive action; eds.] — are now under an obligation to not render that aid or assistance, and to not recognize as legal the continued unlawful presence of Israel in the territory, or any other unlawful effects created by the occupation.
From a concrete policy perspective, that can take a lot of different forms. This really clarifies international legal obligations around the arms trade, around preferential free trade agreements with Israel, and around corporate or university investments, pension fund investments, etc., not only in companies that provide arms to Israel, but that in any way support the occupation.
Doug Henwood: That’s certainly not good for Israel’s standing in the world, not that Israel seems to care. What do you think the political effects of this decision will be ?
Heidi Matthews: It’s a little early to tell. I think part of that is because of the political unrest that we’re seeing right now in multiple jurisdictions that are important for the Israeli case, particularly in the US. This opinion came in the middle of the question about whether [Joe] Biden would be the nominee or not, [Benjamin] Netanyahu’s visit to the US, and the question now about what [Kamala] Harris’s policy will be toward Israel, which seems totally uncertain. Ideally, the United States under a Harris administration would take international law quite seriously and use this opinion as fodder for substantially changing its policy with respect to Israel, in particular around arms shipments and sales, and the recognition of a sovereign and independent Palestinian state.
States like Ireland, Iceland, and Norway have come out supporting this decision. But again, many of the statements we’ve seen from states actually have been limited to talking about the settlements and not so much considering the broad implications of the policy. For example, it took Canada, my home jurisdiction, over a week to respond at all. They did so in concert with Australia and New Zealand. Their statement calls on Israel to “ensure accountability for ongoing acts of violence against Palestinians by extremist settlers, reverse the record expansion of settlements, and work toward a two-state solution.” That’s a very circumscribed interpretation of and reaction to the actual findings of the court in the opinion. It totally ignores the court’s crystal-clear call to bring the occupation to an end as rapidly as possible.
Doug Henwood: Will [Netanyahu] and his cabinet be afraid to travel now? Is there a chance that we could see them in handcuffs someday ?
Heidi Matthews: No. The ICJ doesn’t have that jurisdiction. That would be for the ICC, and happening alongside this advisory opinion at the ICJ is, of course, the work of the ICC. The ICJ deals with contentious disputes between states and also has an advisory jurisdiction. The ICC deals with criminal cases against individuals. Some weeks ago, the prosecutor requested arrest warrants for Netanyahu and [Defense Minister Yoav] Gallant, along with three Hamas leaders, two of whom have now been assassinated by Israel. We’re waiting for the pretrial chamber to make a decision as to whether those arrest warrants should be issued. They will do so on the basis of whether or not there are reasonable grounds to believe that the offenses alleged have been committed by the individuals named.
Slowing that down is a series of challenges to the ICC’s jurisdiction from states, organizations, and individuals that the court has given permission to have aired before it pronounces on the arrest warrants — which is curious and a little bit unexpected. The UK initiated the challenges under [Rishi] Sunak, but the new Labour government has, thankfully, after some hemming and hawing about it, chosen to withdraw its jurisdictional challenge, which is great news. But they got the ball rolling. Now we have all sorts of other folks who have been given permission to make these written representations to the court. Incidentally, [the very right-wing Republican US senator] Lindsey Graham is one of them.
Doug Henwood: What next? Are there other cases against Israel on the docket ?
Heidi Matthews: Yes, several cases. This advisory opinion is a very big deal. It’s not a response to Hamas’s attack on October 7 or Israel’s response to October 7. This advisory opinion was requested by the General Assembly back in December 2022 at a time when basic human rights violations against Palestinians were already intensifying, but without any knowledge of what was about to take place in the region. It’s fortuitous that it comes as an additional piece of the legal puzzle putting together a larger case against Israel and Israeli leaders for their actions in Gaza, and indeed across the territory since October 7.
The other cases to watch for are Nicaragua versus Germany. It’s still ongoing. Of course, South Africa, with its genocide case against Israel. I’ve been waiting to see whether South Africa will make yet another request for modification or indication of additional provisional measures, given the deterioration of the situation in Gaza since the last order which came at the end of May. That was when the Rafah invasion started. And of course, things have substantially deteriorated. I’m also watching for which states may decide to intervene in the South Africa case in particular.
What’s really gotten in my craw around this deterioration, is the fact that the Polio virus has now been detected in wastewater in Gaza, specifically Type 2 Polio, which no one in Gaza has been vaccinated for since 2016. The first clinical case of polio has been found in a ten-month-old baby in Gaza. It’s a really worrying deterioration of the humanitarian situation, which human rights and public health organizations have all warned about for a long time now. I think we can look for whether South Africa will bring an additional request before the court.
We are likely to see an intensification of domestic litigation as well. There’s already quite a bit of domestic litigation in Canada, the UK, Germany, the US, and worldwide with particular emphasis on arms exports. But I think that will now intensify and expand to include demands on states basically to stop doing anything that would support the continuation of the occupation in general. This advisory opinion really gives a strong legal basis to the long-standing Boycott, Divestment, and Sanctions movement, and vindicates the hard work that student protesters around the world have been putting in on that front for months.
Heidi Matthews is an assistant professor at the Osgoode School of Law at York University (North York, Canada) and an expert in international criminal law and the law of war
Doug Henwood edits Left Business Observer and is the host of Behind the News
