She is the only Australian woman to have served on the international court of justice. Now, just months after the Australian government supported her re-election to the top UN court, Hilary Charlesworth has taken a significant stand: calling for Israel to suspend its military operations in Gaza.
Charlesworth, a distinguished international lawyer who replaced the late Australian judge James Crawford on the ICJ, believes a suspension is required to ensure enough aid reaches civilians, while also cautioning that such a step “only partly addresses the risk of destruction of the Palestinians in Gaza”.
Charlesworth expressed this position after joining 15 other judges last Thursday in unanimously ordering Israel to urgently ensure “the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance” including food and water.
The declaration, posted on the ICJ website alongside statements from several other judges, is not so much a dissenting opinion as an additional explanation of her position.
Charlesworth said the ICJ’s new orders included a call for Israel to ensure “its military does not commit acts” that breach the genocide convention “including by preventing, through any action, the delivery of urgently needed humanitarian assistance”.
But Charlesworth, who has a doctor of juridical science from Harvard Law School, said this “elliptical” phasing was “drafted in such opaque terms that it fails to provide clear guidance to the parties”.
“Instead of employing [these] convoluted terms … in my view the court should have made it explicit that Israel is required to suspend its military operations in the Gaza Strip, precisely because this is the only way to ensure that basic services and humanitarian assistance reach the Palestinian population,” she wrote.
Charlesworth noted that the ICJ did not have power to order measures directed at entities not bound by its statute – a likely reference to Hamas – but said South Africa also had responsibilities given it had brought the legal dispute before the court.
“In my view it is open to the court to order both Israel and South Africa to take all reasonable measures within their power to achieve an immediate and sustained humanitarian ceasefire, which would serve to preserve the rights in dispute between them,” she wrote.
The ICJ has yet to make a substantive ruling on South Africa’s allegation that Israel has committed genocide in Gaza, while Benjamin Netanyahu’s government has said the claim “is not only false, it’s outrageous”.
In January the ICJ issued a provisional ruling that Palestinians in the Gaza Strip had a “plausible” right to be protected from acts of genocide, and it ordered Israel to “take all measures within its power to prevent the commission” of genocidal acts.
South Africa returned to the court last month with a request to issue new provisional orders on the basis that widespread starvation was a “change in the situation in Gaza”.
Israel rejected “in the strongest terms” any claims that incidents of starvation in Gaza were a direct result of its deliberate acts and omissions, and maintains that its military operations are a legitimate response to Hamas’s 7 October attack on southern Israel.
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On Thursday, however, the ICJ agreed that the recent developments in Gaza were “exceptionally grave” and said “famine is setting in”.
Rita Jabri Markwell, a lawyer with the Australian Muslim Advocacy Network, said it was significant that Charlesworth had indicated Israel should explicitly be ordered to suspend its military operations.
“The Australian government is at odds with Judge Charlesworth’s opinion because it has only made qualified calls for a ceasefire and has not applied a single consequence to Israel as required by international law,” she said.
Since December, the Australian government has called for an “immediate humanitarian ceasefire” in Gaza and the release of hostages, leading to a “sustainable ceasefire” that “cannot be one-sided”.
The foreign minister, Penny Wong, has said ICJ orders are binding and that Hamas should also comply with the UN security council demand for the immediate and unconditional release of all hostages.
“And we should be able to come together to demand that the Netanyahu government comply with the security council’s demand that all barriers to the provision of humanitarian assistance at scale are removed,” Wong told fellow senators last Tuesday.
Wong said during the ICJ re-election campaign last year: “A vote for Judge Charlesworth is a vote to uphold an international legal system that is representative, that is robust, that is fair. It’s a system that serves us all.”
