In July last year, the International Court of Justice issued an advisory opinion definitively declaring Israel’s occupation of Gaza, the West Bank, and East Jerusalem to be unlawful.
Notably, the opinion included a reminder of the General Assembly’s resolution 32/161 (1977) that called upon “all states, international organisations, specialised agencies, investment corporations and all other institutions not to recognise, or cooperate with or assist in any manner in, any measures undertaken by Israel to exploit the resources of the occupied territories or to effect any changes in the demographic composition or geographic character or institutional structure of those territories”.
South Africa’s Judge Dire Tladi penned an additional declaration as part of the judgment, expressing directly that “if we compare the policies of the South African apartheid regime with the practices of Israel in the OPT [Occupied Palestinian Territories] it is impossible not to come to the conclusion that they are similar. 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.
“There is for the most part an intentional effort to ensure separation of and discrimination between Israelis and Palestinians: separate roads, separate schools, separate facilities and separate legal systems. Whether one speaks of the discriminatory detention practices, including detention without trial (not addressed in the Opinion but for which there is extensive information in the case file), residence permit system, restrictions of movement or demolition of property, deprivation of land, or the encircling of Palestinian communities into enclaves reminiscent of South African Bantustans from which I come, it is impossible to miss the similarities.”
Read more: ‘International law is on the line’ – Pretoria urges global action to halt Gaza genocide
Legally, Israel must leave Gaza, permanently
Soon after the International Court of Justice’s advisory opinion, the UN General Assembly overwhelmingly (124 yes, 14 no, 43 abstained) voted in favour of a resolution that demands Israel end its unlawful occupation within 12 months.
Subsequently, the UN’s Independent International Commission of Inquiry on the Occupied Palestinian Territory, Including East Jerusalem and Israel published a legal analysis of the court’s advisory opinion, offering recommendations as to its implementation.
Among other recommendations was the suggestion that “all States are also under an obligation to act, individually and collectively, to bring the unlawful occupation to an end, including by building political, economic and cultural pressure on the Israeli government to end the unlawful occupation. States must do all that is necessary and reasonable to ensure that the Israeli government brings its wrongful acts to an end as rapidly as possible.”
Those unwilling to use the scary G-word often cynically deploy the argument that the International Court of Justice has yet to make a determination in regard to that particular word.
However, this sort of argument also implicitly confirms that the court is in a position of authority to determine the legality of what is happening in Gaza.
Yet, if this is the case, we already know what the court thinks on this topic: that Gaza — along with the West Bank and East Jerusalem — is unlawfully occupied by Israel, and Israel must bring its occupation to an end.
The 12-month period prescribed by the General Assembly in order to do so has now passed, and Israel has not made any progress in withdrawing from Gaza, the West Bank or East Jerusalem. In fact, it has made concerted efforts to deepen and expand its occupation across all three, with Israeli Prime Minister Benjamin Netanyahu reaffirming last week that: “We are going to fulfil our promise that there will be no Palestinian state; this place belongs to us.”
The instructions from the International Court of Justice, the General Assembly and the independent commissioners — who have this week also concluded that Israel has committed and is continuing to commit genocide against the Palestinians — are all very clear on the duties this gives rise to in the international community.
All states are obligated to act
Indeed, the commission’s recommendations go into further detail about the pressure mechanisms required, including calling on states to “review their domestic laws and examine all potential accountability options, such as targeted sanctions regimes, especially sanctions with respect to human rights violations”, and prescribing that “States shall not render aid or assistance to educational, academic, research or cultural activities that support or maintain the unlawful occupation. This applies to universities and other research or cultural institutions that support the occupation or that are physically located within the Occupied Palestinian Territory and support the occupation. Conversely, the commission believes that there should be promotion of activities or institutions that are working towards ending the unlawful occupation.”
Now, the people who fear the G-word often also fear three other words starting with B, D and S. But it should be clear from the above that the combination of the court’s order, the General Assembly’s timeline, and the commissioners’ implementation guidelines actually lay out an obligation on states to precisely engage in BDS (boycott, divestment, sanctions) measures as a means of pressuring Israel into complying with international law.
As it happens, this is exactly the rationale with which the BDS movement was founded 20 years ago, and the basis upon which all of its campaigns are ultimately based. In this sense, there isn’t anything remotely radical about BDS. It is a simple and obvious mechanism for enforcing international law, nothing more and nothing less.
Which leads to the obvious question of why international law is not being enforced in the first place?
In terms of the direct execution of UN resolutions, such powers are typically reserved for the Security Council, and the US has (for decades) used its veto power there to unilaterally prevent Israel from facing any genuine accountability for any of its actions.
In other words, the “judicial” and “parliamentary” arms of the UN have been crystal clear on what needs to happen, but the “executive” arm is being held hostage by the hegemonic military and economic power of the US.
Similarly, in recent months the US government has aggressively sanctioned various international law experts — including numerous International Criminal Court judges and prosecutors, UN special rapporteur Francesca Albanese, and most recently three Palestinian human rights groups — based on their involvement in or support for the International Criminal Court’s case against Benjamin Netanyahu and Yoav Gallant.
The entire world order is at stake
This is the same US that this month moved to rename its Department of Defense the Department of War — with Secretary of Defence, Pete Hegseth, explicitly motivating for the rebrand on the basis of prioritising “maximum lethality, not tepid legality; violent effect, not politically correct”.
All of humanity thus now faces a choice between respecting, defending and enforcing international law versus prostrating ourselves before the megalomaniacs with the biggest guns and hoping they never turn them on us.
By virtue of the architecture of international law, obligations tend to be laid out in terms of what states must do. But as of now, most states are still acting fearfully, not wishing to incur the wrath of Team America.
But there is safety in numbers, and coalitions such as the Hague Group have already started to show that the balance between principled multilateralism and realpolitik depends very much on how many states come to the table together.
This strategy, however, must also be employed within states, by ordinary citizens. For, as Navi Pillay, chairperson of the above-mentioned UN Independent Commission, stressed in a
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Fellow commissioner Chris Sidoti agreed: “Whatever value there is in the system comes as a result of domestic pressure on governments and international pressure from civil society organisations on intergovernmental institutions.”
Ordinary people all over the planet must choose international law over might is right and must engage in and intensify BDS measures toward this end. DM