Enforcing the World Court’s Advisory Opinion

By Arab Media Watch director Victor Kattan

The International Court of Justice did not directly call upon the international community to impose sanctions against Israel for building the Wall, because sanctions (also known as reprisals and countermeasures in international law) are political acts that can only be executed by States and international organizations.

It is not usually the role for a court of law to impose sanctions on states to ensure compliance with the law. This is usually done by the executive or in the case of international law by the Security Council. However, a court of law can provide a legal basis for imposing sanctions against a rogue State or a group of States if there are valid reasons for doing so.

The ICJ did find that the construction of the wall was a valid reason for imposing positive obligations on third states. At paragraph 159, the ICJ called upon the international community:

(1) Not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem;

(2) Not to render aid or assistance in maintaining the situation brought about by such construction;

(3) 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 (while respecting the United Nations Charter and international law); and

(4) To ensure Israel’s compliance with international humanitarian law as embodied in the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.

Paragraphs (1) and (2) impose negative obligations on states and international organizations, whereas paragraphs (3) and (4) impose positive obligations. The latter two obligations on self-determination and international humanitarian law have an erga omnes character.*

It will be recalled that UN General Assembly resolution ES-10/L.18/Rev.1 "[d]emands that Israel, the Occupying Power, comply with its legal obligations as mentioned in the advisory opinion". According to the International Court of Justice's dispositif:

"Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the Wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion. Israel is also under an obligation to make reparation for all damage caused by the construction of the Wall in the Occupied Palestinian Territory, including in and around East Jerusalem".

According to paragraph 153 (which para. 151 specifically refers to):

"Israel is accordingly under an obligation to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory.  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.  The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the Wall’s construction".

To date, Israel has failed to comply with its legal obligations, as mentioned in the advisory opinion, by going ahead with the construction of the Wall. Third States have also done very little to bring to an end the illegal situation resulting from its construction. As John Dugard, UN Special Rapporteur for Human Rights in the OPTs, highlighted in his December 2004 report to the UN Commission on Human Rights:

"In its advisory opinion, which has been approved by the General Assembly, the International Court of Justice indicated that there are consequences of the Wall for States other than Israel. States are reminded of their obligation not to recognize the illegal situation resulting from the construction of the Wall and not to render aid or assistance in maintaining the situation created by the construction of the Wall. Israel’s defiance of international law poses a threat not only to the international legal order but to the international order itself. This is no time for appeasement on the part of the international community".

As long as Israel is waging war on international law, all States and international organisations should consider acting individually, and collectively, to bring to an end Israel’s violations of international law, in conformity with the UN Charter.

Israel’s violations of international humanitarian and human rights law, and its interference with the Palestinian people’s right of self-determination (held to be of such importance as to qualify as obligations erga omnes), provide a legal basis for those who want to lobby for the imposition of boycotts, divestment, disinvestment and sanctions against the State of Israel - while it remains in breach of international law.

For further reading:

For the role of the EU in light of the ICJ’s advisory opinion:

See Victor Kattan, “The Wall, Obligations Erga Omnes and Human Rights: The Case for Withdrawing the European Community’s Terms of Preferential Trade with Israel”, in volume 13 of the Palestine Yearbook of International Law.

See Victor Kattan, “The EU’s Pivotal Role in Middle East Peace”, in the Review of International Social Questions (RISQ) at the following link: http://www.risq.org/article394.html