Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Advisory Opinion of the International Court of Justice, July 9^th 2004

 

Background

In 2004 at the request of the United Nations, the International Court of Justice (ICJ) issued an advisory opinion on the legality of the wall being constructed at that time by Israel in the Occupied Territories.

In reaching its opinion, the court was forced to incidentally examine some of the so-called “Final Status” issues – the issues which must be resolved for any lasting peace in the Israeli-Palestinian conflict. There are generally held to be five : Borders, Settlements, Refugees, Jerusalem and Water.

The report is of interest then as it comprises a summary and assessment of international law as applicable to the conflict and its potential resolution from one of the highest and most respected judiciary bodies in the world .

 

Historical Assessment

The ICJ looks into some of the relevant history of the conflict and the status of Palestine under the Ottoman Empire and under the British Mandate. It briefly discusses the Israeli-Arab conflict of 1948-9 and the armistice demarcation agreed between Israel and her neighbours in 1949, known as the “Green Line.” 

The war of 1967 raises some rather blunt points. One of the key tenets of international law is the “inadmissibility of the acquisition of territory by war.” The phrase is generally emphasised in the first few lines of every UN resolution relating to the conflict since 1967. The Gaza Strip, the West Bank and East Jerusalem were all areas captured by Israeli forces during the conflict of that year (“The Six Day War”). As such, the Court notes that Israel has no right to retain them and they remain illegally “Occupied Palestinian Territory” under customary international law. Israel has the status of “Occupying Power”.

 

Settlements & Jerusalem

The ICJ makes clear that the occupation is unlawful. Israeli settlements in Occupied Palestinian Territory (including East Jerusalem) are therefore obviously also illegal. The expansion of these settlements continues.

The Court makes reference to Article 49, paragraph 6 of the Fourth Geneva Convention which provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

It concurs with the assessment of the United Nations Security Council that the settlements have “no legal validity” and constitute a “flagrant violation” of the Fourth Geneva Convention.

 

The Wall

The same applies to the wall, where it is within Occupied Palestinian Territory. The ICJ notes that it has no interest in any wall constructed within Israel’s borders, where Israel can do what she likes. As regards the vast sections of the wall that are on Occupied Palestinian Territory: “that construction, along with measures taken previously, thus severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right.”

The court rules that the wall should be dismantled and goes on to say that Israel is legally obliged to “return the land, orchards, olive groves and other immovable property seized… In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered.”

 

Humanitarian Law

The Court draws on a dizzying array of Human Rights Law including articles of the Hague Regulations, the Fourth Geneva Convention, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the Rights of the Child.

It then proceeds to outline a number of violations by Israel against Palestinians in the Occupied Territories. These include: destruction or requisition of properties; restriction of free movement; restriction of access to healthcare; restriction of access to education; restriction of access to water; disruption of agricultural production; impedance of the right to work and impedance of the right to an adequate standard of living.

Some of Israel’s violations are classed as violations erga omnes (‘towards all’). This is a particularly strong legal term, normally reserved for piracy, genocide, slavery or ethnic cleansing. It implies breach of universal, undeniable and critical rights; a breach of rights that all nations have an interest in upholding. 

Moreover :

“Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.  They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.  It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end.  In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.”

We might note in passing that in 2007 the Bush Administration promised an increase in military assistance to Israel of $6 billion over the next decade. $2.4 billion of military assistance was earmarked for 2008 (see Congressional Report, ‘U.S. Foreign Aid to Israel').

 

Israel’s defence (1) : Legal

Israel submitted a number of documents to the ICJ in its legal defence and these are taken into consideration. Israel quite sensibly does not attempt to deny the violations - they are gross and indisputable. Instead, she argues that the Palestinians do not have any rights to violate. 

The Court notes that Israel ratified the Fourth Geneva Convention on 6 July 1951 but “contrary to the great majority of the participants, disputes the applicability de jure of the Convention to the Occupied Palestinian Territory”. Israel’s argument is that the Convention applies only to occupation of the territory of a “High Contracting Party” and that the Palestinian Territories do not constitute such an entity.

In response, the ruling finds that the intention of the drafters of the Fourth Geneva Convention, as set out in the travaux préparatoires of that document are “to protect civilians who find themselves, in whatever way, in the hands of the occupying Power, regardless of the status of the occupied territories.”

Similar findings are made as regards the conventions of international humanitarian law enumerated previously. Again, Israel argues that these rights do not apply to Palestinians in the Occupied Palestinian Territories. The justifications provided are: firstly, that the Palestinians do not have a State and so cannot claim these rights and secondly, that Israel recognises humanitarian laws only as applying to her own citizens within her own borders in times of peace. Again, the ICJ finds that this is not a legitimate defence and rules that humanitarian and human rights law applies in times of peace or war; applies to the actions of a State within or outside her own borders and applies in defence of stateless people.

 

Israel’s defence (2) : Exigency

Another aspect of Israel's defence is the argument that her violation of international law has been compelled by the situation she finds herself in.

Initially, Israel urgently requested the ICJ not to rule on the legality of the wall as “Palestine… given its responsibility for acts of violence…cannot seek from the Court a remedy for a situation resulting from its own wrongdoing.” The court essentially ruled that this imputation of blame was Israel’s opinion and that as the United Nations had asked for the ICJ’s legal opinion, it would provide one.

Subsequently, Israel argued that the construction of the wall was “consistent with Article 51 of the UN Charter, its inherent right to self-defence and Security Council Resolutions 1368 and 1373.”

The ICJ dismissed this argument, ruling that Article 51 and the quoted resolutions were not relevant as they applied to armed conflict between States and not to conflict between a State and a territory it has subjected to an illegal occupation.       

As the Court says, “While Israel has the right, and indeed the duty to respond to the numerous and deadly acts of violence directed against its civilian population… the measures taken are bound to remain in conformity with applicable international law.”

 

Ruling and Judges

Given the international composition of the ICJ and the complex and controversial issues it is called upon to judge, one might expect the rulings to have been close-fought. In fact, the vote was 14-1 in favour of all points except reparations (13-2). The large margin is indicative of the clarity of international law on the points discussed.

The dissenter on all rulings was the US representative, Judge Buergenthal. In his separate ruling he explains that he agrees with his colleagues on some of the key issues. Among these is the ruling that the Israeli settlements in the Occupied Palestinian Territories are illegal under international law and in violation of the Fourth Geneva Convention, there is therefore unanimity in the International Court of Justice on this point. Judge Buergenthal felt however, that the ICJ should not have made a ruling on this case at all, given the political nature of the dispute. For this reason he voted against all motions.

Given the usual media presentation of the Israeli-Palestinian conflict one might wonder what lunatic cabal of Israel-bashers and anti-semites comprises the rest of the International Court of Justice.

A quick search on the British representative (who voted in favour of all rulings) reveals Dame Rosalyn Higgins, educated at Cambridge and Yale and with 13 honorary doctorates to her name. She is currently presiding over the ICJ. In an interview in The Telegraph after the ruling she was asked if, being Jewish, she found it difficult to be so critical of Israel. “I don’t think so,” she replied. "I also think that the fact you happen to be Jewish doesn't mean you think that everything the State of Israel does is right." 

 

International Response

The response was swift and predictable. The Palestinians hailed the ruling as a moral coup and the Israelis lambasted it as nonsense. A United Nations “Special Session” was convened and the vast majority of the nations of the world were in support of the findings of the ICJ. The vote was 150-6 with 10 abstentions, that is to say the US, Israel, Australia, The Federated State of Micronesia, Marshall Islands and Palau on one side, and the rest of the nations of the world on the other. Canada was the only western nation to abstain.

Without US backing, the ICJ’s opinion and the UN resolution reflecting the world’s support of it were flushed down the memory hole. The wall has grown taller, thicker and deeper. The occupation continues.

 

Comments

Throughought Israel’s current brutal assault on Gaza, US and Israeli official opinion has laid the blame squarely and solely on Hamas. There is no doubting that the Palestinians have been plagued by leadership of astounding corruption, incompetence and stupidity. They have squandered their moral victories. The brilliance of the Zionist movement was in its seizing an idea and a few bits of paper – the Balfour Declaration and the Partition Resolution and realising them into a State. This is a feat the Palestinians have yet to achieve, despite a growing raft of resolutions and the weight of international opinion (though not support).

The Palestinians must unite, they must end any pretence of not recognising the State of Israel and they must end violence against Israeli civilians. Such actions serve only to delegitimise their legitimate complaints and bitter suffering. There is an occasional vogue in Israel of comparing Hamas to Samson – blind and captive in Gaza, even in death seeking vengeance on his enemies and bringing the edifice crashing down on himself and all around. Whether or not the comparison is apt, the international community plays its part in the tragedy.

But to lay the blame on Hamas and the Palestinians alone is absurd and obscene. Hamas is an unjust creature born of bitter and longstanding injustice. When, in recent times, the international community is effectively silent and complicit in an Israeli blockade which has cynically left Gaza teetering on the edge of a formal “humanitarian crisis” and reduced ordinary Gazans to eating refuse to survive (see Report), a backlash is inevitable.

If she truly wants a just peace, Israel must begin to act in accordance with international law and humanitarian law. This will mean heeding international calls to stop the savage assault on Gaza. It will mean ending the occupation and the blockade, withdrawing from the settlements and bringing down the wall. It will mean a peace agreement something akin to the international consensus. The suggestion that Israel should do all this and as the ICJ says, pay reparations for damages and violations, seems frankly laughable given the balance of power.

But it seems unlikely that Israel will end Hamas and organisations like it through violence alone. Unless Israel starves or kills practically every man, woman and child in Gaza, there will be a cycle of vengeance sooner or later. Ehud Barak has said, echoing Ecclesiastes: “There is a time for calm and a time for fighting, now is the time for fighting.” We might wonder whether he feels “now is the time” in part because of upcoming Israeli elections and a change in the White House. We might reply that there is no time for massacres and that the time for peace is long overdue.

Imminent regime change in the US holds the tiniest glimmer of hope for a peace process, but ask for this great deliverer now and find him eyeless in the Occupied Palestinian Territories. The demands of justice are clear. The position of international law is clear. The fact that justice and law look increasingly Quixotic notions should not make us lose interest in them, nor should we forget that we claim to uphold them.

 

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Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion of the International Court of Justice, July 9^th 2004 (link)

 

Dear motiz88, Thank you for your comments. The final section aside, my article largely paraphrases the ICJ report which is freely available online. I do not claim that all sections of the report are of direct relevance to the current crisis but they provide the legal background to the overarching Israeli-Palestinian issues. If you have any substantive criticism of their findings I would be interested to hear them. Perhaps they would too. If you can show me where in my article I show support for Hamas I would be interested to see it. I am sorry if you do not feel that the wall, occupation or settlements are relevant to the conflict. Many people do. It is true that the ICJ findings are now dated inasmuch as there has been an official Israeli withdrawal from Gaza. The aims of the unilateral disengagement are open to debate; I will not go into that here.  The shift from occupation to siege has not significantly improved the lot of Gazans. The violations of international and humanitarian law and the prevention of Palestinian self-determination as described by the ICJ in its 2004 report continue, the report is therefore of continued relevance. It is hard to describe the blockade of Gaza as “cutting it slack”. International observers including the UN Relief and Works Agency have been describing a state of crisis there. Finally, the ‘wall’ (I have used the bland terminology adopted by the ICJ) is not in the West Bank alone, though the most controversial part of it is.