World Court's Ruling on Wall Speaks with Utmost Clarity

Nidal Sliman

(Nidal Sliman is a Palestinian lawyer from Israel, and a J.S.D. candidate at Notre Dame University Law School.)

July 27, 2004

The International Court of Justice has rendered its advisory opinion on "the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the Occupied Palestinian Territory, including in and around East Jerusalem." Though the near-term fate of the wall is unclear, subject as it is to international power politics, the Court's ruling, issued on July 9, speaks with the utmost clarity.

The wall is illegal. Israel must dismantle it, and pay compensation to Palestinians who have suffered financial or property losses as a result of its construction. No state should recognize the barrier as legitimate. The UN should act to implement the court's decision. On July 21, the General Assembly of the UN overwhelmingly agreed with the ICJ opinion, by a vote of 150-6 with ten abstentions. Interestingly, the General Assembly requested that the secretary-general register all damages caused to the Palestinians by the wall's construction.

JURISDICTION AND JUDICIAL PROPRIETY

The 64-page advisory opinion rejected Israel's argument, endorsed by both the Bush administration and Democrat John Kerry's presidential campaign, that the Court has no jurisdiction in the matter of the wall. The Court found that the General Assembly had the right to request the advisory opinion. According to Article 65(1) of its statute, the ICJ "may give an advisory opinion on any legal question at the request of whatever body may be authorized," and Article 96(1) of the UN Charter specifically authorizes the General Assembly (GA) to do so.

One might argue that the GA impinged upon a "dispute" -- the Israeli-Palestinian conflict -- that is in the purview of the UN Security Council. But the Court held that the Security Council's "primary responsibility for the maintenance of international peace and security" is not an exclusive one, and that the GA can also "recommend measures for the peaceful adjustment" of conflicts.

The Court likewise rejected the Israeli-US contention that it should decline to give the advisory opinion because of possible political consequences for a future negotiated solution to the conflict. As per long-standing jurisprudence, said the judges, many legal questions also have political aspects that do not deprive the Court of its competence.

The ICJ has power to adjudicate contentious cases between two states and to issue advisory opinions. In contentious cases, the parties must accept the jurisdiction of the Court. But even in advisory proceedings, the lack of consent of one party to the proceedings has no necessary bearing on the Court's jurisdiction. Because of UN responsibilities in matters relating to peace and security and the GA's permanent responsibility regarding the question of Palestine until its final resolution, the Court decided that the "radically divergent views" of Israel and the Palestinians on the wall may not be regarded as solely a bilateral matter. Lack of consent to the proceedings on Israel's part was therefore not sufficient to convince the Court to decline to issue the advisory opinion.

Furthermore, the Court dismissed the argument that it should decline to render the advisory opinion "because it does not have at its disposal the requisite facts and evidence." The UN secretary-general's Office, the justices said, had submitted a voluminous dossier "comprising not only detailed information on the route of the wall but also on its humanitarian and socio-economic impact on the Palestinian population." Although Israel's written statement was limited to issues of jurisdiction and judicial propriety, it touched on security concerns and was accompanied by annexes that made the security argument in more detail. Furthermore, many official texts of the Israeli government defending the wall as a security measure are available to the public. Hence, the Court found that it has sufficient "information and evidence," and that it "cannot decline to answer the question based on the ground that its opinion would lack any useful purpose." The UN will assess the usefulness of the Court's findings. The contention that Palestine is responsible for acts of violence and cannot seek from the Court a remedy for a situation resulting from its own wrongdoing was dismissed by the Court because the advisory opinion is to be given to the GA and not to "a specific state or entity."

ACQUISITION OF TERRITORY BY WAR

Having resolved the question of jurisdiction, the Court turned to the historical-legal background of the Occupied Territories. With the collapse of the Ottoman Empire in the aftermath of World War I, Palestine came under a British mandate with two important principles: non-annexation and "the wellbeing and development" of peoples. After Britain declared its intention to evacuate Palestine by 1948, the GA adopted on November 29, 1947 a "Partition Plan" to establish two states: one Jewish and the other Arab. The Arab Palestinians and Arab states rejected the plan, "contending that it was not balanced," and on May 14, 1948, Israel proclaimed its independence. An armed conflict broke out and the partition plan was never implemented. On April 3, 1949, an armistice agreement was signed between Israel and neighboring states in Rhodes, and the so-called Green Line separating the state of Israel from the West Bank was drawn.

In 1967, Israel occupied all the territories that had constituted Palestine under the British mandate. Since then, the Security Council has adopted several resolutions emphasizing the inadmissibility "of acquisition of territory by war," and condemning Israel for attempting to annex parts of East Jerusalem. Neither the armistice agreement nor the 1994 peace treaty between Israel and Jordan nor the 1993 agreement signed between Israel and the Palestine Liberation Organization has prejudiced the status of the Occupied Territories. Since the territories were occupied in 1967 during an armed conflict, Israel is an occupying power under customary international law.

On October 1, 2002, Israel approved a plan to construct a "security fence" along a route "stretching 720 kilometers along the West Bank." By the end of July 2003, Israel had built 150 kilometers of the barrier, leaving about 56,000 Palestinians living in enclaves cut off from the rest of the West Bank. When the secretary-general submitted his written statement to the ICJ in January 2004, Israel began to carry out the second and third phases of the plan. The barrier, in many places, is comprised of electronic sensors, a ditch up to four meters deep, a two-lane asphalt patrol road, a trace road and a stack of six coils of barbed wire -- for a combined width of 50 to 100 meters. An area of 975 square kilometers (16.6 percent of the West Bank) already lies between the wall and the Green Line. If the barrier is completed, another 160,000 Palestinians and 320,000 Israeli settlers will live between the two boundaries. The territory between the wall and the Green Line is defined as a "Closed Area," and Palestinians living in this area cannot move in or out without having special permits or identity cards, while non-residents may not enter the area at all. However, Israelis may move to and from the area freely without a permit.

VIOLATIONS

Considering this history, the Court stressed that the Hague Regulations of 1907 are part of customary law and are thus applicable in the Occupied Territories. The Fourth Geneva Convention, as well, is applicable because there existed an armed conflict between two high contracting parties -- Israel and Jordan -- to the Convention when Israel occupied the West Bank.

"The existence of a 'Palestinian people' is no longer in issue," the Court observed, and Israel is legally obligated to respect the right of the Palestinian people to self-determination. Therefore, the Court concluded, "the Israeli settlements in the Occupied Territories (including East Jerusalem) have been established in breach of international law." The settlements and the wall being built to protect them constitute a "de facto annexation" which "severely impedes the exercise by the Palestinian people of its right to self-determination."

The Court held that the construction of the wall entails "substantial restrictions on the freedom of movement of the inhabitants." Separating Palestinians from farmland, wells and means of subsistence, the wall "has further led to increasing difficulties for the population concerned regarding access to health services, educational establishments and primary sources of water." Hence, the Court found that Israel has violated guarantees of freedom of movement under the International Covenant on Civil and Political Rights, and the Palestinians' rights to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and the UN Convention on the Rights of the Child.

Furthermore, Israel's attempts to alter the demographic situation in the Occupied Territories contravene Article 49(6) of the Fourth Geneva Convention and Security Council resolutions. The forcible transfers of population, deportations and the destruction of private property are contrary to Article 53 of the Fourth Geneva Convention. The Court was not convinced that Israel's actions were "necessary to attain its security objectives."

Israel did not appear before the Court, but argued in written briefs that Article 51 of the UN Charter enables it to construct the wall in self-defense against Palestinian attacks. The Court held that Article 51 is irrelevant. This article recognizes the inherent right of self-defense "in the case of armed attack by one state against another state." Since Israel does not claim that Palestinian attacks, which originate from territory under its military control, are imputable to a foreign state, it cannot invoke Article 51. Furthermore, the Court was not convinced that Israel was in a state of necessity to construct the wall in order to safeguard its interests. Israel's right and even duty to protect its citizens from indiscriminate and deadly acts, the ICJ ruling said, should be in conformity with applicable international law.

OBLIGATIONS

Having found the construction of the wall to be in contravention of Israel's international legal obligations, the ICJ noted that Israel is bound "to put an end to the violations." Among its specific obligations are to "cease forthwith the works of construction" and to knock down those parts of the barrier which have so far been constructed. In addition, the Court ruled that Israel has to repeal all legislation and reverse any orders that it used to authorize the wall's construction and make reparations for the damages caused to all the natural or legal persons concerned. If it is impossible for Israel to return any of the "land, orchards, olive groves and other immovable property seized" to make room for the barrier, then Israel has to compensate the Palestinian owners.

The Court was also "of the view that all states are under an obligation not to recognize the illegal situation resulting from the construction of the wall.... They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction." State parties to the Fourth Geneva Convention are instead obliged to act "to ensure compliance by Israel with international humanitarian law as embodied in the convention." The UN should consider what further action is required to bring to an end the illegal situation and seek "the establishment of a Palestinian state, existing side by side with Israel and its other neighbors, with peace and security for all in the region."

NEAR UNANIMITY

The ICJ passed this strongly worded advisory opinion by a margin of 14-1 -- with the lone negative vote cast by the American justice, Thomas Buergenthal. Judge Pieter Kooijmans of the Netherlands, who concurred with most of the advisory opinion, joined Buergenthal in voting against the section regarding the obligation of other states not to recognize the illegal situation created by the wall. In Kooijmans' view, the request for the advisory opinion "did not make it necessary for the Court to determine the obligations for states which ensue from the Court's findings."

Judge Buergenthal voted against giving the advisory opinion because, in his view, "the Court did not have before it the requisite factual bases for its sweeping findings." Nonetheless, he added, "there is much in the opinion with which I agree." In his separate opinion, Buergenthal agreed with the Court's finding that international humanitarian law, including the Fourth Geneva Convention and international human rights law, are applicable to the Occupied Territories and "must there be faithfully complied with by Israel." Therefore, he concurred with the majority on the Court that "the means used to defend against terrorism must conform to all applicable rules of international law." He also accepted "that the wall is causing deplorable suffering to many Palestinians living in that territory."

In addition, Buergenthal agreed with the majority that the existence of the Israeli settlements in the West Bank violates the Fourth Geneva Convention. Hence, "the segments of the wall being built by Israel to protect the settlements are ipso facto in violation of international humanitarian law. Moreover, given the demonstrable great hardship to which the affected Palestinian population is being subjected in and around the enclaves created by those segments of the wall, I seriously doubt that the wall would here satisfy the proportionality requirement to qualify as a legitimate measure of self-defense."

If the near unanimity of the ICJ's decision was a rebuke to Israeli-US legal arguments, then Buergenthal's clear acceptance of substantial portions of the decision indicates the breadth of the international consensus holding that the wall is itself a barrier to peace. Should the US obstruct eventual deliberations at the Security Council about the Court's verdict, or veto a resolution to enforce the decision, it will have a difficult time finding a legal justification for doing so.