The ICJ ruled that Israel is practicing apartheid against Palestinians and its occupation is illegal: If States fail to end complicity & impose targeted sanctions they relegate international law to oblivion

Policy Brief – August 6, 2024

The Advisory Opinion (AO) of the International Court of Justice (ICJ) on July 19, 2024 on the questions posed by the UN General Assembly about Israel’s military occupation and its legal consequences, was welcomed by a large number of states, jurists and legal experts, and human rights organizations as an authoritative determination and milestone for justice and the rule of law. The ICJ declared that Israel’s occupation of the Gaza Strip and the West Bank, including East Jerusalem, is unlawful and must be ended as quickly as possible. It confirmed that Israel must dismantle all its settlements, provide full reparations to Palestinian victims, and facilitate the return of displaced Palestinians.

The Court also declared that, in the context of the 1967 occupied Palestinian territory (OPT), Israel is violating the international prohibition on racial segregation and apartheid. It underlined the inalienable rights of the Palestinian people, particularly the right to self-determination, right of return, restitution, and reparation to those it displaced.

This is the second decision by the world’s top court against Israel since the beginning of the year. In Januaury, the ICJ affirmed the plausibility of genocide in Gaza in the case brought by South Africa against Israel and ordered provisional measures against Israel, which were reaffirmed and added to in two consequent rulings on requests by South Africa. Adding to the duties of states arising from that order, the ICJ’s 2024 AO also triggers the obligation of all States and international organizations, including corporations, not to render aid or assistance to Israel’s illegal occupation and apartheid, and to impose sanctions on it until it ends its violations of international law.

Third State obligations

The 2024 ICJ AO, the Court’s orders for provisional measures in the genocide case, as well as the ICJ AO from 2004 on the illegality of Israel’s wall and settlements in the occupied West Bank trigger legal obligations for Third States, both individually and collectively, to end complicity and hold Israel accountable. They also trigger responsibilities for organizations, including corporations and institutions, to end complicity in Israel’s gross human rights violations.

The 2024 ICJ AO explicitly confirms that all States must “abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory or parts thereof which may entrench its unlawful presence in the territory.” (para 278)

Thirty eight UN legal and human rights experts have underlined that Third States have to immediately take action to:

“review all diplomatic, political, and economic ties with Israel, inclusive of business and finance, pension funds, academia and charities,”
impose an arms embargo on Israel, and
put “an end to all other commercial [ties] that may damage the Palestinians, and [impose] targeted sanctions, including asset freezes, on Israeli individuals and entities involved in illegal occupation and racial segregation and apartheid policies.”

According to legal experts, also the provisional measures issued by the ICJ in the genocide case against Israel in January 2024 oblige Third States to “take immediate actions to ensure that their economic relationship with Israel and the activities of corporations domiciled in their territories do not breach their duty to prevent and to not be complicit in genocide, and in order to ensure they are not complicit in or do not aid and assist in Israel’s commission of war crimes. Corporations also have such responsibility independently from their Home States’ regulation.”

The primacy of enforcement of rights

The ICJ AO is a paradigm shifter as it moves the achievement of Palestinian rights from one centered on “negotiations” between oppressor and oppressed to one centered on accountability and enforcement to end the system of oppression and uphold the inalienable, internationally recognized rights of the Palestinian people. The UN experts cited above confirm that the AO is the “authoritative determination” of law with regards to part of the situation in Palestine and that all UN member states must comply with it. “The Court has finally reaffirmed a principle that seemed unclear, even to the United Nations: Freedom from foreign military occupation, racial segregation and apartheid is absolutely non-negotiable,” they said.

The ICJ decision comes at a time when many States, mainly in the global south, along with officials from the UN, some less complicit Western states, even the EU (despite its egregious complicity), have been warning that Israel’s genocidal war in Gaza as well as its crimes against the Palestinian people as a whole are consistently undermining international law, not just Palestinian rights.

Palestine - the litmus test

The Western-dominated UN system has thus far failed to trigger genocide prevention mechanisms despite the unprecedented abundance of evidence of Israel’s genocide against 2.3 million Palestinians in Gaza. Neither has the UN enforced the obligations deriving from the 2004 ICJ AO. The UN and most States are yet to signal that they will take meaningful and measurable actions to uphold their duties outlined in the authoritative ICJ AO by ending their respective complicity with Israel and imposing targeted sanctions on it.

Many States, mainly from the global south, have supported the South Africa case and/or the AO judicial proceeding regarding Israel’s policies in the OPT, including through legal submissions in harmony with the judicial outcome. Many have welcomed the AO and expressed commitment to international law.

Though a number of European States have slightly shifted positions recently, Western states have largely maintained their unprecedented level of hypocrisy and criminal complicity in Israel’s genocide and underlying system of settler-colonialism, occupation and apartheid. This is exposing the West’s lack of commitment to international law when it concerns its own interests or those of its settler-colonial partner, Israel, and it is therefore eroding the credibility and relevance of the international legal system.

Following 76 years of Israel’s settler-colonialism and apartheid, and with its ongoing genocide, Palestine more than ever is, in the words of South African jurist John Dugard, the litmus test for the system of human rights. According to the UN legal experts’ opinion, states must challenge “Israel’s deliberate efforts to rewrite the rules of international humanitarian law, using it as ‘humanitarian camouflage’ to legitimize potentially genocidal violence against all Palestinians.”

The ICJ AO is the last chance: States must counter the “might makes right” paradigm by immediately ending all forms of complicity in Israel’s illegal military occupation, apartheid, and its livestreamed genocide in Gaza, and the root cause of all this: its 76-year-old regime of settler-colonialism. They must put into action what they had already recognized as urgent in the UNGA Resolution A RES ES-9.1, passed in 1982 in response to Israel’s annexation of territory, ongoing threat to peace and security in the region, as well as failure to comply with UN Security Council resolutions:

At the national level:

Impose a comprehensive military embargo on Israel, including the export, import and transfer of weapons, military equipment, and dual use items, as well as an end to all other forms of military cooperation (training, joint research, investments, etc.).
Impose lawful, targeted sanctions against Israel including diplomatic, trade, academic, cultural, and financial sanctions.
Ban all trade and other direct and indirect relations with Israel which do or may contribute to genocide and apartheid, including with Israel’s illegal settlement enterprise, and immediately stop all ties with the corporations listed in the UN database (despite its obvious deficiency) and by credible organizations.

At the UN:

Re-activate the UN Special Committee against Apartheid to help abolish Israel’s regime of apartheid and hold those responsible accountable.
Suspend apartheid Israel from the UN and strip it of its privileges and membership rights, as was done with apartheid South Africa.
Promote and support resolutions, similar to that passed against Israel in 1982, demanding a comprehensive military embargo and other lawful and targeted sanctions.
Implement ethical procurement guidelines throughout the UN system to avoid any recognition of or aid and assistance to Israel’s unlawful and criminal actions and policies.

Within the framework of other multilateral bodies:

Suspend Israel from the Olympics, FIFA, and all such international and regional fora and events.