The International Court of Justice’s (ICJ) advisory opinion on the legal consequences arising from Israel’s actions in the Occupied Palestinian Territory was groundbreaking on several fronts. Not only did it affirm what many experts have been saying about the Occupation for decades, but it also expressed, in concrete terms, the legal obligations of Israel and other states arising from such a situation — creating a legal landscape that invokes customary international law, human rights law, and international humanitarian law, including Israel’s obligations under the Fourth Geneva Convention and 1907 Hague Regulations governing the responsibilities of an occupying power.
In addition to being overshadowed by the theatre of the U.S. elections, mainstream Western coverage of the advisory opinion, which was issued last week, misrepresents and ignores important facts about the opinion.
CNN reported that it “was the first time the [ICJ] has expressed its view on the legality of Israel’s presence in territories it captured in the 1967 war.”
This is accurate to an extent, but it doesn’t offer the full picture, as the ICJ had already concluded in its 2004 advisory opinion on the construction of the separation wall in the West Bank that the wall “and its associated régime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.”
Thus the ICJ had already expressed its view in terms that were conditional but clear: if the reality created by the wall becomes permanent, it is annexation. For 20 years, Israel did its best to make it permanent, and in 2024 the Court recognized in absolute terms the reality of the situation it had already expressed its view on two decades prior. For instance, the court found that Israel’s physical, juridical, and legislative separation and discrimination in the West Bank and East Jerusalem constitutes a violation of Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination, which prohibits racial segregation and apartheid. Among other things, it also found that the Palestinian people “has been deprived of its right to self-determination over a long period” spanning decades of Israel’s unlawful practices including its settlement policy, restrictions on movement, and control over resources.
On the other hand, Fox News quoted Anne Bayefsky, director of the Touro Institute on Human Rights and the Holocaust and president at Human Rights Voices: “The court openly states it didn't need to find any specific facts in violation of international law before reaching its conclusions”.
This claim is false. Paragraph 77 of the advisory opinion, which Bayefsky is most likely referring to, states that “it is not necessary for the Court to make findings of fact with regard to specific incidents allegedly in violation of international law. The Court need only establish the main features of Israel’s policies and practices and, on that basis, assess the conformity of these policies and practices with international law.”
Accordingly, the ICJ doesn’t state that it didn’t need to find “specific facts,” but rather to identify “specific incidents” in violation of international law — the latter not in the General Assembly’s request when it asked the court for an advisory opinion on the matter. It is Israel’s overall policies and practices that are under scrutiny, and not specific incidents. The fact that a discernible pattern of illegality exists in Israel’s general practices is a condemnation of Israel, not the court. Moreover, Bayefsky conveniently ignores the part, just three paragraphs earlier, where the court says that it “must itself determine the lawfulness of the policies and practices identified by the General Assembly.”
This example reflects the dangers of misinformation and the responsibility the media has in relaying nuanced and factually correct perspectives, especially when many lives are on the line.
In its opinion, the ICJ finds that Israel violates certain erga omnes obligations, or obligations that concern all states; states are responsible for aiding or abetting internationally wrongful acts. As such, the court concludes that all states are “under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory. It is for all States [...] to ensure that any impediment resulting from the illegal presence of Israel in the Occupied Palestinian Territory to the exercise of the Palestinian people of its right to self-determination is brought to an end.”
The importance of this cannot be overstated in the current context where, two months ago, the very same court issued its third provisional measures order after Israel failed to comply with the first two. It demanded Israel halt its offensive on Rafah, maintain the crossing open for unhindered provision of aid into Gaza, and allow access to investigative UN missions. Israel refuses to comply with all three accounts. A month and a half ago, UN Security Council Resolution 2735 called for a ceasefire that has yet to materialize today. Palestinians are suffering from famine in addition to 10 months’ worth of endless attacks, bombardment, displacement, and death looming overhead.
To recognize a legal obligation on all states to cease any assistance that supports the Occupation, let alone the genocide, is therefore monumental. This will either alter the political calculations of all policymakers concerned or further expose the hypocrisy toward the same “rules-based order” that such policymakers profess to uphold. Policymakers still have tools at their disposal to pressure Israel, such as diplomatic and economic sanctions, an arms embargo, and peacekeeping measures under Chapter VII of the UN Charter, among others. So it comes as a shock that some mainstream news coverage in the U.S. and UK is surprisingly lacking mention of this crucial aspect of the advisory opinion, or misrepresenting it in some way.
It is completely absent from the print coverage of the New York Times, NPR, Fox News, Sky News, and the Telegraph. The New York Post and USA Today don’t seem to have reported on the advisory opinion at all.
Beyond omission, the BBC reported that “[t]he court also advised states to avoid any actions, including providing aid or assistance, that would maintain the current situation.” Indeed, the court advises insofar as the advisory opinion is advisory, but, as quoted above, it spells out that states are legally obliged not to provide said assistance — a legal conclusion on the consequences for other states rather than a mere recommendation. This is particularly alarming when the rest of the ICJ’s reported findings were either quoted or not watered down.
NBC, on its part, quoted the Palestinian Authority’s (PA) foreign ministry stating “That the ruling meant the ‘international community is under an obligation’” to uphold Palestinian self-determination. Still, the news outlet does not mention the ICJ’s conclusion — giving the impression that this is the PA’s (by nature politicized) interpretation of the ICJ’s conclusions instead of the actual letter of such conclusions.
Meanwhile, the Wall Street Journal, in addition to quoting the PA, quoted Chatham House analyst Yossi Mekelberg saying that “[f]rom an international point of view, it makes every economic activity, cultural cooperation and academic cooperation with [Israeli settlements in] the occupied territories illegal for those who do that internationally.” Once again, interpretation, even that of an analyst, is not an adequate substitute for the letter of the readily available primary source — especially if that interpretation does not discuss the issue directly. Mekelberg discusses the issue of cooperation with Israel in the settlements, but the ICJ was clear that any assistance rendered in “maintaining” the Occupation must be stopped; money wired to Tel Aviv can still serve to maintain the Occupation in Ramallah.
CNN, Forbes, the Washington Post, the Guardian, and the Independent do mention this matter without misrepresentation, as do wire services Reuters and the Associated Press. Progressive outlets such as the Intercept did as well.
While some, such as Fox, harbor what appears to be outright malicious intent with their misinformation, other reporters working on news of this nature might be shaped by or forced to conform to the prevailing narratives and implicit or explicit biases in the U.S./UK media landscape. It is important to point out the intended or unintended misrepresentations that result from such a landscape to be able to move forward in an environment that allows journalism that could contribute to saving or taking lives to thrive. By recognizing these issues, we can push for more accurate reporting and informed public discourse on critical international legal matters.
