The United Nations General Assembly passed a resolution on Thursday, 124 votes to 14, demanding that Israel end its “unlawful presence” in Gaza and the West Bank within a year. Forty-three member countries abstained, including Australia.
Foreign Affairs Minister Penny Wong said our government was “disappointed” by the resolution. As she explained: “We were wanting to be able to vote for a resolution which did reflect closely the [International Court of Justice] opinion … and we worked very hard … to seek amendments that would enable us to support it … [they] were not accepted. For that reason we abstained.”
Is the government’s position sound, or is this political expediency posturing as a genuine law-based reservation? (Bearing in mind that Israel and the US, our allies, voted against the UN resolution.)
We’ll do what the media won’t bother with: have a close look at the actual resolution and the ICJ advisory opinion that it purports to be putting into action.
The ICJ gave its advisory opinion in July, responding to specific questions the General Assembly had asked it. The court concluded that Israel’s continued presence in the occupied Palestinian territories is unlawful; it is obliged to bring its occupation to an end; it must cease all settlement activities and evacuate all settlers (because their presence is illegal too); it must make reparations to the Palestinian people for the damage its occupation has caused; and that all other states are obliged to not recognise Israel’s occupation as illegal and to do nothing that aids or assists its maintenance.
Critically, the ICJ stated that the UN itself should consider “the precise modalities and further action” needed to bring Israel’s occupation to an end “as rapidly as possible”. This was the legal trigger for the proposed resolution coming in front of the General Assembly, sponsored by 30 member states.
The UN comprises two decision-making bodies: the General Assembly, which includes all 181 member states; and the Security Council, made up of the five permanent members and 10 other state members elected for two-year terms.
The Security Council would never pass a resolution this adverse to Israel’s preferences, because the US, as one of the permanent members, would wield its veto right to prevent such an outcome. That’s why this fight has played out in the General Assembly. In a sense it doesn’t matter either way, because neither body’s resolutions is enforceable. However, real politik dictates that Security Council resolutions carry weight.
The UN resolution is undoubtedly more detailed in its demands for specific action than the ICJ opinion. For one thing, it puts a deadline on the ending of the occupation: one year. It puts meat on the bones of evacuation and reparations, including demands for repatriation of all displaced Palestinians to their homes, the dismantling of parts of Israel’s security wall in the West Bank, and the return of all seized assets and cultural property taken since 1967.
The resolution also places a positive obligation on Israel to not impede the Palestinian people from establishing their own sovereign state, a move Israel’s Prime Minister Benjamin Netanyahu has declared impossible, and which its allies have continued to insist is necessary but not feasible until the “security situation” is stable (the now-mythical “two-state solution”).
Finally, the resolution requires all member states to do things the US will absolutely not accept, most significantly to impose sanctions on individuals involved in the settlements and occupation, and an arms embargo on Israel covering any weapons that might be used against or in the Palestinian territories.
Wong has not said how exactly the government claims the resolution exceeds the scope of the ICJ opinion, nor what amendments were sought. Our UN ambassador, James Larsen, put out a statement saying only that the resolution goes “beyond the scope of the advisory opinion” and therefore “distracts from what the world needs Israel to do”.
To be clear, Australia is on record confirming that Israel’s occupation is illegal and demanding that settlement activity cease. It has also shifted its position on recognition of a Palestinian state, saying this must happen “as a matter of when, not if” (just not now).
It seems Australia’s declared position is an uncomfortably technical one, masking a diplomatic anxiety over the elephant in the room: America’s commitment to sticking with Israel — and providing it with weapons — no matter what.
The ICJ advisory opinion was a statement of the law, in answer to questions it had been asked. An ordinary court will both declare what the law is and make orders designed to ensure that the law is enforced. The ICJ is not such a court; its rulings have no binding force on member states. It can only say what the law is.
Properly, the court referred back to the UN the question of what needs to be done, in order for the correct legal status to be restored. In those terms, what the General Assembly has done is not particularly remarkable. It has determined the measures it says are necessary and appropriate to achieve that outcome.
Member states could fairly object to the terms of the resolution, as 14 of them did, on the basis that they are excessive, ineffective or wrong. Their arguments didn’t carry the day. I could argue against some of the specific terms too, but I don’t see any that go beyond the scope of the ICJ’s ruling.
Australia did not object; it refused to vote at all. While its decision is completely understandable in the context of its relationships with Israel and the US, it makes no legal sense. That’s why Penny Wong’s explanation sounds pretty thin; it is.
