This is a separate type of proceedings to what we have in the South Africa v. Israel case, which is what is known as a contentious case, with one state making a complaint against another. This, on the other hand, is an advisory opinion, which is the other type of case that the ICJ has jurisdiction over. In an advisory opinion process, the court can respond to a request for its authoritative legal opinion on a question from one of the UN (United Nations) organs.

In this case, it was the UN General Assembly that asked the court for clarification on the legality and legal consequences of the prolonged Israeli occupation of Palestinian territories. The request was made in 2022, so it predates October 7, 2023 and everything that has happened since then in Gaza.

Written submissions were made by more than fifty states and international organizations as interested parties in the case during 2023, and the hearings were held earlier this year in February 2024, just a few weeks after the initial hearings in the South Africa v. Israel case. The advisory opinion is not directly related to the genocide case, which is going on separately.

But there is inevitably some overlap — it’s the same set of judges reviewing aspects of Israel’s oppression of the Palestinians, so the cases are indirectly speaking to each other. Certain aspects of the advisory opinion relating to the status of Gaza and the use of force will likely inform elements of the court’s own later judgment in the case brought by South Africa. However, the timelines and the core themes are different — genocide in the South Africa case; occupation, settlements, apartheid, annexation, and self-determination in the advisory opinion.

The question that the General Assembly asked came in two parts. It first asked the court to advise on the legal consequences arising from Israeli occupation, settlement, and annexation of Palestinian territory, the continuing violation of Palestinian self-determination, and Israel’s related discriminatory legislation and measures. It then asked: What are the implications of all of that for every UN member state? How should they engage with a state that is illegally occupying another territory and imposing an institutionally racist or apartheid-style regime?

It is an advisory set of proceedings, which means that the opinion is not binding in the same way that the court’s judgment in a contentious case like South Africa v. Israel case will be formally binding on both South Africa and Israel to comply with. An advisory opinion is generally not directed only to one state — though in this case, obviously, a lot of the legal consequences that the court has found do produce particular legal responsibilities for Israel — but to all UN member states, to advise them on their legal obligations.

However, lawyers and legal scholars would always say that while it may not be binding, it is authoritative. We can sometimes get hung up on the difference between binding and nonbinding rulings or questions about enforcement. The reality is that even “binding” ICJ judgments do not come with any guarantee of enforcement themselves. They don’t have any kind of self-executing coercive or punitive implementation measures. There is an assumption of good-faith engagement and commitment to the system, which is somewhat absurd when we’re talking about a belligerent, colonial apartheid state like Israel.

If we think about the advisory opinion as a piece of law, we have to think about the law itself as a site of contestation, as a tool, as a discourse — as something that has as much or as little weight as social movements, political campaigns, and popular pressure can give it by forcing states or other sites of power to act on it. The liberal concept of law as a neutral, value-free set of rules and decisions, the legitimacy of which is universally accepted and which will automatically compel states to act in a certain way, regardless of the political dynamics, hegemonic tendencies, or economic structures at work, is clearly fallacious.

For the law to be of use for socialist and liberation movements, it needs to be deployed tactically and harnessed effectively in the context of political struggle and in the service of strategic objectives, but without any blind fidelity to the law or the legal institutions as such. In the context of Palestine, international legal instruments and decisions have not always been as helpful as they might have appeared at first glance, and Palestinians themselves are under no illusions about the limitations and colonial complicities of international law.

What we ultimately have in this ICJ opinion, on the face of it, is a strong set of findings condemning the Israeli occupation and the continued presence of Israel’s civil and military administration, its settlements, and all of its associated colonial infrastructure in Palestinian territory as illegal. That gives rise to a whole set of obligations for Israel itself to withdraw and make reparations, and — assuming that Israel isn’t going to readily comply with those obligations — also for other states engaged in any form of relations with Israel.

Thinking back to the point about making the best tactical use of what the law does offer, Palestinian movements, scholars and global solidarity campaigns were quick to emphasize that the ICJ advisory opinion in practice requires trade suspensions, financial divestment, economic sanctions, and energy and arms embargoes.

This advisory opinion comes out of a context going back twenty years. There was a previous advisory opinion from the ICJ in 2004 on the apartheid wall that Israel was building at the time in the West Bank. The court said that the wall and the settlements that it was enveloping were illegal and had to be dismantled. Third-party states had a responsibility to enforce that.

The fact that Israel didn’t comply with this ruling and that other states took no meaningful action to force Israel to comply with it was the catalyst for the emergence of the Palestinian Boycott, Divestment, and Sanctions (BDS) movement. It was based on the need for people in civil society and grassroots movements to take action because Palestinians didn’t have the luxury of waiting for states to do so. Again, we can see the relationship here between a legal process in an institution like the ICJ on the one hand and political developments and social movement activism from below on the other.

Very soon afterward, there were calls for a further advisory opinion to go beyond the specific thematic question of the wall and the settlements connected to the wall and to look at the occupation in a more fundamental way. John Dugard, who was the UN special rapporteur on Palestine at the time, called in 2007 for a second question to be put to the ICJ from the UN General Assembly to address the legality of the Israeli occupation as a whole, based on whether it was effectively a colonial and apartheid regime (because under international law, colonialism and apartheid are prohibited, whereas military occupation is assumed to be a temporary postwar transitional situation and so is considered permissible in itself).

It was fifteen years before the question was ultimately put to the ICJ from the General Assembly. The reason it took so long was primarily because of the Palestinian Authority’s (PA) own initial reticence at a time when it was still engaged in negotiations, and later because of its own conservatism and reluctance to adopt the anti-apartheid and decolonization analysis that Palestinian activists and movements were engaged in.

Even when the PA did ultimately go to the General Assembly and asked UN member states to support this in 2022, the scope of the question that they put forward was narrower than John Dugard had been suggesting fifteen years earlier. They focused on the occupation and its prolonged nature but didn’t explicitly include the language and elements of colonialism, decolonization, and apartheid, which meant that the court wasn’t obliged to answer those questions directly.

The headline analysis of the opinion is that it was a defeat for Israel on every front. The court held the occupation and Israel’s continued presence in the West Bank (including East Jerusalem) and Gaza Strip to be illegal. It held that Palestinian self-determination is being violated, that the occupation amounts to illegal acquisition and conquest of territory by force, and that the Israeli occupation regime systematically discriminates against Palestinians.

On the latter point, the court said that Israel’s laws and practices violate Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination, which prohibits racial segregation and apartheid. The text of the opinion didn’t say explicitly that Israel was perpetrating both racial segregation and apartheid, which left the door open for some legal commentators to argue that the court didn’t necessarily make a finding of apartheid — it might have meant “only” racial segregation.

The wording was likely crafted to leave a degree of deliberate ambiguity as a way to get as many of the judges as possible to vote in favor. The core findings against Israel were made by a solid majority of eleven out of the fifteen judges, including a couple of judges who expressed doubts or uncertainties in their separate, individual opinions about the existence of apartheid. But when we read the language of the opinion’s section on apartheid in the whole, it’s talking not only about physical separation, but also juridical discrimination between Palestinians and settlers in the West Bank and longstanding systemic and social inequalities imposed by Israeli law across the board.

Some of the judges in their individual opinions were also explicit on the existence and extent of the Israeli apartheid regime, including South African judge Dire Tladi who highlighted Israel’s racial permit system, movement restrictions, land expropriation, and “the encircling of Palestinian communities into enclaves reminiscent of South African Bantustans from which I come.” He wrote that “the Court was correct to find that the policies and practices of Israel in the Occupied Palestinian Territory amount to apartheid.”

In any event, the Court’s finding on racial segregation and/or apartheid is going further than some people might have expected and going beyond what the court was strictly asked to do in the question that was put to it. That has been celebrated by Palestinian lawyers and activists as a landmark element of this ruling.

The major caveat that we do have to flag here in terms of the territorial focus of the court — and this goes back to the problematic position of international law on Palestine more broadly — is that this ruling is limited to the 1967 occupied territories. Going back to the imposition of the British mandate over Palestine, the UN partition plan in 1947, the recognition of the Israeli state, and everything that has come since then, there is a partitionist logic and a normalization of the Nakba that underpins the established position of international law and sets the limits of what a case like this can or cannot do in that context.

The finding that there is an apartheid or racially discriminatory regime in the 1967 territories is therefore only as far as the court went in this decision and as far as it could really go, because of the parameters of the question that it was asked and the premises that international law is operating on. Even where it gets into the question of racist Israeli laws, for the most part it only looks at how they apply in the West Bank and East Jerusalem.

When the court talks about the right to return for Palestinians displaced during the occupation since 1967, it doesn’t talk about the Nakba and the 1948 refugees. They do have a right to return under international law, but that right is not being addressed by the ICJ in this opinion. It operates very much on the basis of a two-state logic, even if, perhaps, in an optimistic reading we can see signs in some of the individual opinions from particular judges where that might be starting to slip away.

You have some judges talking about the violation of Palestinian self-determination going back to 1948 rather than 1967. Some of them use the language and legal prohibition of colonialism to characterize Israel’s record. Palestinian organizations like Al-Haq have responded by saying that this is a landmark ruling in and of itself, but it’s also a first step toward rectifying the generational harm of the occupation and going back beyond that to the root causes of the settler-colonial and apartheid regime, which must be dismantled in its entirety.

The Israeli response to the ICJ ruling has been to say that this is a politicization of the court and thus it is a political decision, not a legal one. The Israeli statements are trying to concoct a fantasy version of international law that exists in a political vacuum, when in reality Israel itself is often engaged in hyperpoliticization of legal discourse. Their position is that Israel completely rejects the conclusions of the advisory opinion but regardless, it remains committed to international law. It’s almost a parody of itself and comes across as being completely unserious.

Part of the Israeli position is to say that this is interference by the ICJ, and we have to resolve this situation through negotiations. As you mentioned, the Knesset vote showed a very strong commitment across the spectrum of the Jewish-Israeli parties to a very absolutist Zionist position that there should be no two-state solution. This is not just the most extreme settler elements of the current governing coalition — this is across the board of all the Israeli parties.

We can see the lack of commitment to any kind of good-faith engagement toward a Palestinian state in whatever shape or form that might assume. That does in turn have implications, between the ICJ ruling itself and the intransigence of the Israeli political establishment, for all other states that are engaging with them. The judgment says very clearly that the Oslo Accords or any process of negotiations cannot be an obstacle or an excuse to delay Palestinian self-determination.

The court spoke about an obligation on Israel and on all states to bring about the end of the occupation “as rapidly as possible” — that was the language it used (whereas in some previous cases like that of apartheid South Africa’s occupation of Namibia, the ICJ found an obligation to “immediately” end the colonial administration or occupation). But the court did say here that Israel’s obligation to withdraw from the Palestinian territories is unconditional.

For all other states, there are general obligations that states have as a matter of course under international law not to recognize an illegal situation and not to render aid or assistance to it. They also have a proactive duty to cooperate to bring that situation to an end. In a case like this, where you have a prolonged occupation and apartheid regime, that means there is effectively an international legal obligation to engage in boycott, divestment, and sanctions.

These duties in relation to Israel’s oppression of the Palestinians had already been noted by resolutions and decisions of other UN organs and human rights bodies. As the UN’s supreme judicial organ, the ICJ has now given this added confirmation and gravitas. There is an obligation not to engage in any relations with Israel that would sustain or legitimize the occupation.

The language of the advisory opinion talks about that in quite broad terms. It goes beyond an obligation not to engage with the Israeli military in its occupation of the West Bank or in its attacks on Gaza, or an obligation not to engage in trade with illegal settlements. It is also a broader obligation not to engage with the Israeli state in any way that could sustain and prolong the occupation and the apartheid regime in the 1967 territories.

That gives rise to obligations for all states to review and suspend trade relations with Israel that are in any way feeding into the occupation and the discriminatory regime. The BDS movement and many Palestinian campaigners have been quick out of the blocks to call for this. States have immediate and unconditional obligations to divest from Israeli companies that are involved in any way with the occupation and to impose energy embargoes and arms embargoes.

As I said, all of that has already been on the table for a long time in terms of the general principles of international law, but now it has been confirmed and endorsed by the ICJ. It has also been on the table since October in terms of the duty to prevent genocide. The advisory opinion adds another layer and another set of tools that give weight to the arguments that the Palestinian solidarity movement has been making. This is not just an ethical imperative, but also a legal obligation on states.

The response from states has been mixed. We have seen plenty of states in the Global South come out endorsing the ruling, and other states from the Western bloc being more equivocal and saying, “this is an important decision — we have to study it carefully and see what it means for us.” South Africa, for example, made strong statements declaring that the court has confirmed what they had been saying for a long time: Israel is practicing the crime of apartheid, and we all have to act on that.

There is now a question for a state like South Africa, which is engaged in litigation accusing Israel of genocide while at the same time continuing to have economic and diplomatic relations with Israel. South Africa is in a particular moment now with the ANC (African National Congress) now being in a new coalition government that includes parties with pro-Israel positions. Even the nominally strongest supporters of Palestinian freedom have to decide how to concretely respond to this ruling.

Then you have figures like the German chancellor Olaf Scholz and his foreign minister, Annalena Baerbock, who said that their government noted the decision from the ICJ and that it was already clear that the settlements are an obstacle to peace and an obstacle to a two-state solution. But Germany is not committing to do anything itself beyond that.

The German leaders say that the advisory opinion is nonbinding and that it doesn’t change Germany’s assessment of the situation. Germany will continue supplying weapons to Israel. Scholz described calls for restrictions on trade with Israel or Israeli settlements as “despicable,” while a spokesperson for the German Foreign Office claimed that “the choice of the term apartheid sets a tone that is not helpful when thinking about how to resolve the Middle East conflict.”

The need to get beyond that type of empty, formulaic rhetoric of “two states,” “negotiations,” “resolving the conflict,” and so on will be central to the campaign to push states and institutions to take this decision more concretely and impose the type of material sanctions that the situation requires.

The original order was in late January. Within a week, it was already clear that Israel was openly defying the ICJ orders through the campaign against UNRWA (United Nations Relief and Works Agency for Palestine) as well as the ramping up of attacks on Gaza. Francesca Albanese pointed out after the recent advisory opinion that there is a pattern: every time there is a new decision or judgment against Israel, its response is to escalate its attacks on Palestinians.

South Africa’s legal team went back three more times, in February, in March, and in May, asking for further provisional measures, sometimes asking again in different terms for the “cease-fire” order, but also asking for other measures against the Israeli state. In response to the first request in February, the court said that the situation was terrible and getting worse but would be alleviated if Israel simply followed its original set of orders, so it didn’t impose any new measures at that time.

In March, the ICJ did feel the need to add a couple of additional clarifications and additions to the original orders. In May, as you said, there was a more significant evolution with the court ordering a set of new measures.

By that point, you had starvation and disease proliferating across Gaza. The majority of people had been displaced multiple times and repeatedly attacked in what Israel called “safe zones.” The last wave of mass displacement was into Rafah, which was the last refuge for the majority of the population. At that point, the situation was so severe that the judges themselves were describing it as “catastrophic,” “apocalyptic,” “gut-wrenching,” and “unimaginable.”

Yet in the classic style of courts in general and this court in particular, the language of the new orders was still somewhat ambiguous — even in terms of punctuation, triggering an absurd debate among international lawyers and some of the judges themselves in their separate opinions about the positioning of commas. They ordered the Israeli forces to “halt” their “offensive” in Rafah, but the way the order was formulated left it open to contestation as to whether this order applied to the military offensive in its entirety, or only to the parts of the offensive that were violating previous orders and were inherently inflicting genocidal conditions of life on Palestinians.

Either way, the premise of the order was not to go as far as South Africa had requested from the outset of the case, which was to order Israel to immediately suspend all military operations in and against Gaza as a whole. The order was limited to Rafah and to the offensive elements of Israeli military operations in some conditional form.

That was still, even in its narrowest reading, essentially an order for Israel to stop attacking Rafah, which it ignored. Israel bombed Rafah sixty times in the first forty-eight hours after the order was made, culminating in the horrific attack on sheltering civilians in a designed safe zone in Tal as-Sultan that has been called the “tent massacre.”

But Israel was still able to come out with a statement saying that it had not and would not conduct any military actions in Rafah that conflicted with the court’s order. It was still clinging to the idea that it was distinguishing between legitimate and illegitimate targets and continuing its dance with legal language and gray areas.

Again, we can see the limitations of the court’s authority in the first place, but also the problem with the court using ambiguous or indeterminate language, sometimes to get as many of the judges on board with a decision as possible. That opens the door for different readings or constructions of the ruling, and then we get sidetracked into these debates between military lawyers and legal advisers and commentators about the particular meaning of the language that was used by the ICJ, rather than focusing on the core issue of the continuing genocidal violence itself.

That will also be a feature of the response to the advisory opinion. Did they explicitly say that it was an apartheid regime or not? What does the obligation not to aid or assist the Israeli occupation mean exactly for the trade relations of other states and so on?

There will be lots of work going on there by lawyers and legal scholars of all stripes, presenting particular readings of the advisory opinion, including those advancing Zionist positions aimed at minimizing its impact. Once again, it will be up to the Palestinian organizations and those concerned with Palestinian rights and freedoms to articulate their arguments and to harness what is there in terms of useful legal tools and tactics to feed into the work of the social and political movements and without undermining the broader struggle for liberation.

The ICJ is a court of general public international law, which governs relations between states. All of its cases and decisions are to do with state responsibilities — what states are obliged to do in their relations with each other.

The ICC, on the other hand, is situated in the field of international criminal law, following in the tradition of the Nuremberg trials and the Tokyo trials of fascist leaders in Germany and Japan after World War II, and subsequent ad hoc tribunals that were set up to prosecute war crimes, crimes against humanity, and genocide in the former Yugoslavia, Rwanda, and a few other places.

In international criminal law, we’re talking about the responsibility of individuals, although there is also an overlap with general public international law and the ICJ. For example, genocide is a crime under international law that can be perpetrated by individuals who are carrying out acts of genocide, but it is also something that states can be responsible for because of its systematic nature.

Genocide can thus fall within the jurisdiction of either the ICC or the ICJ, or both. Bosnia and Croatia both brought genocide cases against Serbia at the ICJ arguing that Serbia was responsible as a state for genocide, whereas in the International Criminal Tribunal for the former Yugoslavia, it was individual (Serb and other) political leaders, military commanders, and so on who were being prosecuted as individuals for international crimes, including genocide.

The ICC was set up in 2002 and is supposed to be the universal, permanent version of a court like the tribunal for the Balkan wars, which was wound up a few years ago. About two-thirds of UN member states are now members of the ICC. While it’s not universal, it does have quite a wide reach.

Palestine is one state or entity that is a member of the ICC, and on that basis, the court has jurisdiction over the situation in Palestine. There was a process with the court figuring out whether or not it could accept Palestine’s membership, as its statehood status was still being contested, but ultimately, after the UN General Assembly recognized Palestine in 2012, the ICC said it would accept Palestine as a member.

There has been a lot of frustration and disillusionment with the court for operating during its first twenty years essentially as a Eurocentric and neocolonial “white man’s court” that was only prosecuting what were perceived as soft targets, primarily from the African continent. At the same time, it was refusing to move ahead with investigations of British and US war crimes in Iraq or Afghanistan.

Likewise, when the court finally said it was going to open an investigation into Palestine in 2021, there was a lot of pressure for it to move quickly, but it did very little between 2021 and 2023. In view of everything that has happened since October, there has been more urgency to the situation, and after stalling for many months, the prosecutor has now asked the court to issue the arrest warrants that you mentioned.

There have been different shades of the response to this. One is that this is a very “both-sides” approach to the situation. It is only looking at the situation from October 7 — not the many years of submissions by Palestinian lawyers and organizations with documentation of Israeli war crimes in Gaza dating back to 2014 and crimes of apartheid and settlements in the West Bank, and not the crime of Israeli genocide in Gaza since October. It also appears to have made a point of presenting slightly more charges against the Palestinian suspects than the Israeli ones.

Many Palestinians have argued that this is presenting a false equivalence in a situation that is in fact completely unbalanced, where the origins and root causes of the oppression as well as the scale and severity of the crimes perpetrated by Israel since October 7 are so much greater. Karim Khan has been accused of being too sympathetic to the Western position and of trying to appease member states like Germany and Britain who are among the main funders of the court. But there is a process now in place and the pretrial chamber of the court will have to decide whether or not to issue these arrest warrants.

Normally they do grant arrest warrants that are requested by the prosecutor, but those requests usually aren’t announced in advance for fear of interference or preemption. The fact that the prosecutor publicized this in advance has left the situation open to intervention by other parties who have made submissions and are trying to interfere in the process.

Those reports on Israeli surveillance of and threats to ICC officials as well as Palestinian organizations making submissions to the ICC were very extensive and included some very stark details. But they reflect a broader, long-term policy of interference that the Israeli state has been engaged in. It does show in very clear terms how seriously the Israeli state takes the threat of ICC prosecution of its leaders and how determined it is to stop that.

The Israeli Ministry of Strategic Affairs was set up in the wake of the growing success of the BDS movement as a governmental site to oppose efforts in civil society and diplomatic spaces in relation to BDS, but also in relation to some of these international legal processes as well. We know some of the other tactics that they have used as well, such as trying to designate some of the Palestinian rights organizations as terrorist groups to get their funding cut off and detain their staff members.

Then you have the question of Israel’s Western allies doing some of its bidding inside these institutions. The United States is not a member of the ICC, and neither is Israel itself. Countries like Britain and Germany do have access to those spaces as members of the court and they have been intervening in various ways over the years.

In the specific example that you mentioned, this goes back to the point about the prosecutor publicizing in advance the request for arrest warrants. That opened up the process and Britain sent in a request to the ICC in June saying that it wanted to contest the jurisdiction of the court and make a formal submission to that effect. Their argument was based on the Oslo agreements, contending that since the Palestinian Authority, under the terms of Oslo, did not have full criminal jurisdiction over Israeli nationals in the occupied territories, this meant that the Palestinians would not be able to transfer that jurisdiction to the ICC.

The ICC decided in late June that it would allow the British government to make their submission on this point and would also allow other member states or interested parties to make submissions. Since then, there has been an election in Britain and the new Labour government has now eventually said that it is not going to go ahead with this submission.

However, the previous Tory government has already opened up this can of worms by raising this in the first place. Even though Britain is no longer intervening, a number of other states as well as legal organizations and law professors have made their submissions for and against this argument, and those submissions now have to be looked at by the court.

Even if the ICC ultimately decides there is no bar to jurisdiction — which seems the most likely result, especially after the ICJ has now said Oslo cannot be used to negate Palestinian rights — it will still be going through the motions of reviewing those submissions and issuing a decision on the issue. That will probably delay the issuing of any arrest warrants by a few months.

In this context, Germany has made an intervention of its own based on a different set of arguments as to why the ICC should not have jurisdiction and should not go ahead with these arrest warrants. The German argument is essentially that the ICC should not investigate or prosecute Israeli officials until Israel’s own legal system has had time to do so, and that the question of whether the ICC should have jurisdiction should not be decided while the armed conflict is ongoing. Again, we see the role of Israel’s Western backers in trying to disrupt even very limited institutional avenues for some form of justice.

With the ICC as it stands, we’re talking about an investigation of Netanyahu and Gallant, which is obviously significant, but only those two figures out of a much wider group of perpetrators, and on a relatively limited set of charges at that. There have been multiple submissions to the ICC asking them to investigate Israeli apartheid and Israeli genocide in Gaza, but the prosecutor decided not to include those bigger systemic and structural charges in the request for arrest warrants.

The final thing I would say is in relation to the idea of the “rules-based international order.” This is really a creation of the United States and the West that emerged as we know it now under the [Barack] Obama administration as an alternative to “international law,” which was seen as an inconvenience. While the rules-based international order retains certain elements of classic international law (reconfigured in a flexible way to serve US geopolitical agendas), it sidelines much of that corpus, and instead incorporates other “rules” that are not part of conventional international law doctrine but are rather constructed to protect US capital and US global and regional security interests.

The whole premise of this has evolved primarily in the context of competition and rivalry with China and Russia, who themselves are positioned as lying intrinsically outside of the rules-based international order. Despite being on the hook for annexation, apartheid, and genocide in the ICJ, Israel is seen by its proponents as remaining inside this alternative rules-based order and as such is able to essentially retort at one and the same time — as Jake Romm and Dylan Saba put it — that “we follow the law, and also there is no such thing.”