Israel’s Wall and the World Court

By Arab Media Watch director Victor Kattan

Background

To understand the advisory opinion of the International Court of Justice on Israel’s Wall, it is worth looking at the political developments which led to the decision by the Palestine Liberation Organisation to petition the ICJ to urgently render an advisory opinion on the legal consequences arising from its construction in occupied Palestinian territory.

There is a general international consensus that the Palestinian people have a right to a state of their own that should be based on the 1949 ceasefire lines between Israel and Jordan, and Israel and Egypt - what many people refer to as the ‘two-state solution’.

US President George W. Bush first talked about a two-state solution in a speech he gave in the Rose Garden outside the White House on 24 June 2002:

“My vision is two states, [Israel and Palestine] living side by side in peace and security.”

This was a vision which three months previously had been incorporated in the preamble to UN Security Council resolution 1397 on 12 March 2002. The preamble:

“Affirmed a vision of a region where two states, Israel and Palestine, live side by side within secure and recognized borders.”

One month after the adoption of this resolution, on 14 April 2002, the Government of Israel decided to build a system of walls, fences, ditches and barriers inside the occupied Palestinian territory of the West Bank.

On 7 May 2003, UN Secretary-General Kofi Annan transmitted the text of a “performance-based roadmap to a permanent two-state solution to the Israeli-Palestinian conflict” to the president of the Security Council.

The Road Map envisaged a settlement that “will result in the emergence of an independent, democratic and viable Palestinian state living side by side in peace and security with Israel and its other neighbours.”

Nasser Al-Kidwa, permanent observer of Palestine to the UN, who worried that the construction of the Wall inside occupied Palestinian territory would interfere with the creation of an independent, democratic and viable Palestinian state, expressed his concern in a letter he wrote to Annan on 1 October 2003.

Two weeks later Guinea, Malaysia, Pakistan and Syria introduced a draft resolution in the Security Council that would have declared the Wall illegal and asked Israel to cease and reverse its construction. This draft resolution was vetoed by the US, one of five permanent members of the Council.

Thirteen days later, on 27 October 2003, the question of the construction of the Wall was brought before the UN General Assembly by a number of European states in the context of the Tenth Emergency Special Session of the General Assembly, convened to deal with what the Assembly considered a threat to international peace and security.

The Assembly subsequently passed resolution ES-10/13, which “demanded Israel stop and reverse construction of the Wall in Occupied Palestinian Territory, including in and around East Jerusalem.”

This resolution was adopted by 144 states, with 12 abstentions and four against. It requested the secretary-general to periodically report on compliance with this resolution.

On 24 November 2003, Annan’s report was submitted to the Assembly, concluding that Israel was not in compliance with the resolution’s demand that it “stop and reverse the construction of a Wall in the Occupied Palestinian Territory.”

On receipt of this report the Assembly, on 8 December 2003, requested that the ICJ urgently render an advisory opinion on the international legal consequences arising from the construction of the Wall. This resolution was adopted by 90 states, with 74 abstentions and eight against.

European Union states abstained from the vote, although they stressed that the departure of the Wall from the 1949 armistice line could “prejudge future negotiations and make the two-state solution physically impossible to implement,” and that it would cause “further humanitarian and economic hardship” for the Palestinians.

On 23 February 2004, the oral pleadings began. Palestine, 12 states (Algeria, Bangladesh, Belize, Cuba, Indonesia, Jordan, Madagascar, Malaysia, Saudi Arabia, Senegal, South Africa and Sudan) and two international organisations (the League of Arab States and the Organisation of the Islamic Conference) took part.

Israel decided not to attend, although it did submit a written statement. The pleadings ended on 25 February 2004, when the ICJ began its deliberation.

The Advisory Opinion

On 9 July 2004, the International Court of Justice reconvened when its Chinese President Shi Jiuyong read out aloud the advisory opinion on the construction of the Wall in occupied Palestinian territory. The 15 judges sitting in the Court reached several conclusions by an overwhelming majority:

■ By a unanimous vote, the ICJ held that it had jurisdiction to give the advisory opinion.

■ By a 14-1 majority, it decided to comply with the request for the advisory opinion.

■ By a 14-1 majority, the ICJ held that the Wall and its associated regime of checkpoints and closed military zones are contrary to international law, and that Israel is under an obligation to terminate its breaches of international law and to cease construction of the Wall. Israel is obliged to dismantle those sections already constructed in occupied Palestinian territory, including in and around East Jerusalem, and to repeal or render ineffective all legislative and regulatory acts relating to the Wall's construction.

■ By a 14-1 majority, the ICJ held that Israel is under an obligation to make reparations for all damage caused by the construction of the Wall.

■ By a 13-2 majority, the ICJ held that all states “are under an 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 …” States party to the Fourth Geneva Convention have an obligation to ensure that Israel complies with international humanitarian law.

■ By a 14-1 majority, the ICJ held that the UN, the General Assembly and the Security Council should consider what further action is required to bring to an end the illegal situation resulting from the construction of the Wall.

The sole judge to vote against these findings was the US judge, Thomas Buergenthal. However, as Richard Falk - Albert G. Milbank Professor of International Law and Practise, Princeton University - points out in the American Journal of International Law, he voted against these findings in the form of a Declaration rather than a Dissenting Opinion.

In his Declaration, Buergenthal made it clear that he agreed with the ICJ’s main conclusions. His differences with the majority were based on his belief that there were insufficient facts before the Court on Israel’s security concerns, and that it should not have rendered an opinion without full consideration of those facts.

In an article in the German Law Journal, Iain Scobbie - director of the Sir Joseph Hotung Program in Law, Human Rights and Peace Building at the School of Oriental and African Studies - noted that Buergenthal agreed with his colleagues on four key legal issues:

● The territory in dispute is occupied territory and that international humanitarian law, including the Fourth Geneva Convention of 1949, is applicable.

● The Palestinian people have a right to self-determination that must be protected.

● Settlements built on occupied territory are illegal.

● Human rights law is applicable to the occupied Palestinian territories.

On these four points of law, the ICJ was unanimous - a rare feat in international jurisprudence. As Susan Akram, associate professor at Boston University Law School, and John Quigley, President’s Club Professor of Law at the Ohio State University, highlighted in a pamphlet they prepared for the Jerusalem Fund:

“This Court, comprising highly eminent jurists representing all geographical areas of the world, is widely considered extremely conservative - not ‘judicial activists’ in any sense of the term. The 14-1 votes on almost all the points can fairly be said to reflect the weight of legal authority on the key conclusions and principles underlying the opinion. The geographical, religious and ethnic diversity of the Court’s membership commonly contributes to greater disagreement in most cases and on most issues than is reflected in this opinion.”

It can therefore be stated that the ICJ’s findings on the construction of the Wall are, without a shadow of a doubt, the correct statement of international law on the subject today.

On 20 July 2004, the UN General Assembly voted by a 150-6 majority to accept the Court’s advice and demanded that Israel comply with the opinion.

For further reading:

The ICJ Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory

Susan Akram’s and John Quigley’s pamphlet prepared for the Jerusalem Fund

Iain Scobbie, “Smoke, mirrors and killer whales: the International Court’s opinion on the Israeli barrier Wall”, in the German Law Journal, September 2004