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By Shawqi Issa

Attorney at Law

Director of Ensan Center for Human Rights, Palestine

 

 

Background:

 

The Palestine Question was created by foreign forces. They first began with the founding of the Zionist organization at the hands of a group of European Jews. At the event, that organization received an unprecedented support form the then anti- Semitic Europe with a view to hitting two birds with one stone: ousting poorer Jews from Europe and using them in European plans of domination over the Middle East. Then the "Balfour Declaration" was made public, to be followed by the League of Nation's resolution of imposing the British mandate on Palestine to facilitate, among other reasons, the effective implementation of the Balfour Declaration. Finally, there was the UN resolution on the partition Palestine, and the creation of the state of Israel, with foreign military, financial and political support.

In spite of all these decisions and measures of international bodies on Palestine and the successful creation of Israel, the picture is now reversed. Since its inception, Israel and its allies continue to reject any intervention by international bodies to solve the Palestinian question and make peace. As World War II was ended, and the Palestinian 1948 Nakba incurred, a new international balance of forces existed.  The UN resolutions reflected that balance to a large extent and international law proved to have a role to play. The Geneva conventions, and other accords, were passed to protect oppressed citizens and observe human rights at the minimum level. However, the latter issue has actually meant that any discussion of the Palestinian question at the UN or anywhere else won't be in favor of Israel. This is obviously confirmed by numerous resolutions and recommendations of UN Security Council and General Assembly, namely Resolution No. 194 on the Palestinian refugees, and those issued in the aftermath of 1967 war. Via-a-via this situation, Israel has only had to reject, with the US and Western backing, the UN resolutions, and not to abide by international treaties, especially the Geneva Conventions.

Since 1967, numerous UN decisions focused on the urgency on the need for Israel to respect international law and conventions. Whenever the US did not use the veto[1], the UN Security Council was able to pass resolutions supportive of the Palestinian people. Those resolutions recognize the 1967 lands as Israeli occupied territories, and are subject to Geneva Conventions of 1949, especially the fourth Convention. They also regard Jerusalem as part of the occupied territories, and Israeli settlements as illegal, in addition to the illegality of collective punishment and the abrogation of the pre-occupation effective laws in these territories. Many other reports and decisions have also been adopted by UN and non-governmental organizations in the interest of the Palestinians (it should, however, be noted that the global community has come to accept Israel's borders, not as the UN Resolution No181 had "de jure" designed, and according to which it was admitted to UN membership, but in compliance with the "de facto" 4 June 1967 borders).   

The advisory opinion of the International Court of Justice on the Wall includes and summarizes these resolutions as a whole. As I personally spoke out in advance of its issuance, it was not possible for such an opinion to be adopted in substance in any other formulation.  The ICJ would find itself obliged to include in its opinion the other major issues: whether the Palestinian territories are occupied or not, the Jewish settlements are illegal or not, Jerusalem is part of the occupied territories or not, etc. and to issue its legal decision accordingly. Because it was inevitable that the Court would view Israeli actions as illegal, Israel, the US and their allies did their best to prevent the ICJ from reviewing this case. Failing to stop the UN General Assembly from asking the ICJ to do so, they tried to find a legal way out for the ICJ to abstain from considering the UN GA demand. Again they failed.

 

The ICJ and Palestine:

What is the ICJ?  From its website: “The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946.

The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America).

The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.

The first case entered in the General List of the Court (Corfu Channel (United Kingdom v. Albania)) was submitted on 22 May 1947.

From 22 May 1947 to 12 January 2008, 136 cases were entered in the General List.

The Court may entertain two types of cases: legal disputes between States submitted to it by them (contentious cases) and requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies (advisory proceedings).

 

Contentious cases

Only States (States Members of the United Nations and other States which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions) may be parties to contentious cases.

The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways:

• by entering into a special agreement to submit the dispute to the Court;
• by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby, in the event of a dispute of a given type or disagreement over the interpretation or application of the treaty, one of them may refer the dispute to the Court;
• through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. A number of these declarations, which must be deposited with the United Nations Secretary-General, contain reservations excluding certain categories of dispute.”[2]

This actually means that the Palestinians have no access to request the ICJ to discuss any issue as they are not a member state of the UN or the ICJ.  Neither would a case be discussed there if it involves Israel without the latter's consent.

At this point, one might argue that Palestine is a state under the UN resolution 181 on the partition of Palestine, by which Israel was also created and recognized. Later, the PLO was established as the representative of the Palestinian people and declared the "Palestinian State in Exile". The only reason for the non-existence of this state on its territory is Israel's illegal obstruction of that by force, in spite of the fact that conquering other's lands by force is prohibited by international law. Hence Palestine's right of being recognized as a UN member state, and in the ICJ as well, can be argued too. In fact, many states have already recognized the state of Palestine, and Palestine is a member of the Arab league and regional and international state organizations. Such discretionary judgment could be another issue where the ICJ may adopt a judicial opinion once the Arab and Moslem states manage to obtain a decision in the UN General Assembly obliging the ICJ to do so.

 

"Advisory Proceedings

Advisory proceedings before the Court are open solely to five organs of the United Nations and to 16 specialized agencies of the United Nations family.

The United Nations General Assembly and Security Council may request advisory opinions on “any legal question”. Other United Nations organs and specialized agencies which have been authorized to seek advisory opinions can only do so with respect to “legal questions arising within the scope of their activities”.

When it receives a request for an advisory opinion, the Court, in order that it may give its opinion with full knowledge of the facts, is empowered to hold written and oral proceedings, certain aspects of which recall the proceedings in contentious cases. In theory, the Court may do without such proceedings, but it has never dispensed with them entirely.

A few days after the request is filed, the Court draws up a list of those States and international organizations that will be able to furnish information on the question before the Court. Those States are not in the same position as parties to contentious proceedings: their representatives before the Court are not known as agents and their participation, if any, in the advisory proceedings does not render the Court’s opinion binding upon them. In general, the States listed are the Member States of the organization requesting the opinion. Any State not consulted by the Court may ask to be.

It is rare, however, for the ICJ to allow international organizations other than the one having requested the opinion to participate in advisory proceedings. With respect to non-governmental international organizations, the only one ever authorized by the ICJ to furnish information did not in the end do so (International Status of South West Africa). The Court has rejected all such requests by private parties.

The written proceedings are shorter but as flexible as in contentious proceedings between States. Participants may file written statements, which sometimes form the object of written comments by other participants. The written statements and comments are regarded as confidential, but are generally made available to the public at the beginning of the oral proceedings. States are then usually invited to present oral statements at public sittings.

Advisory proceedings are concluded by the delivery of the advisory opinion at a public sitting.

It is of the essence of such opinions that they are advisory, i.e., that, unlike the Court’s judgments, they have no binding effect. The requesting organ, agency or organization remains free to give effect to the opinion by any means open to it, or not to do so. Certain instruments or regulations can, however, provide beforehand that an advisory opinion by the Court shall have binding force (e.g., conventions on the privileges and immunities of the United Nations).

It remains nevertheless that the authority and prestige of the Court attach to its advisory opinions and that where the organ or agency concerned endorses that opinion, that decision is as it were sanctioned by international law.”[3]

 

This allows discussion on issues related to the Palestinian – Israeli conflict, and the potential to offer a legal advisory opinion thereon, but only if an authorized UN Agency requests the ICJ to work on such an opinion.

In 1988, long before the case of the Apartheid Wall was raised, the ICJ had considered the issue of the PLO offices (with observer status) at the UN in the United States. The latter sought to close them down. A dispute erupted between the US and the UN on this issue soon after the US Congress passed legislation, in December 1987, against terrorism, and labeled the PLO as a terrorist organization. The US asked the UN to close down the office of the PLO representative at its headquarters in the US. The UN requested the US to comply with the rules of arbitration as enshrined in the accords with the host country. The US turned that request down. So the UN General Assembly adopted a resolution (42/229) on 2 March 1988, requesting the ICJ to present an advisory opinion. On 26 April 1988, the ICJ sent back its judgment obliging the US to comply with the arbitration rules in this dispute, under Chapter 21 of the Headquarters Accord of 1947

Israeli Policies leading to the Wall Project

Ever since its conquest of the Palestinian territories in 1967, Israel implemented a wide variety of measures aimed at changing all aspects of life there. Its definite and ultimate goal was, and continues to be, the driving away and displacement as many of the local citizens as possible, and, subsequently, put as much land as possible under its direct control. As a first measure, Israel issued military orders to control water resources in the Palestinian territories. As a result, it became easier for Israel to gradually drive away the Palestinians from agricultural works, and to eventually illegally confiscate their lands.

The next measure was to increase Israeli control of planning and construction activities in built up or populated areas.  In this endeavour, it prohibited the development of any structural map for those areas and, in most cases, rejected applications for building new houses. According to reports released early 2008 by the Israeli "Peace Now" movement, Israel issued only 91 construction permissions for Palestinians in the West Bank throughout the last seven years, whereas 18,472 building license were granted to Jewish settlers in the occupied territories in the same period. However, against each of the 91 construction permits, Israel ordered 55 demolitions of Palestinian buildings. The table below of Peace Now demonstrates these facts:

Construction Permits, Requests and Demolitions for Palestinians in Area “C”:

Year          Requests     Permits              Demolition orders              Demolitions
2000         182                5                         465                                       41
2001         167                6                         568                                       186
2002         159                6                         641                                       276
2003         337                3                         681                                       306
2004         250                5                         703                                       225
2005         189               13                        795                                       157
2006         176               43                        502                                       264
2007         164               10                        638                                       208

Total        1,624             91                        4,993                                   1,663

According to the Israeli Committee Against House Demolition (ICAD), Israel razed 18,147 Palestinian houses between 1967 and the end of 2006, in addition to 208 houses in 2007 which Israel demolished in "Area C" for being built without Israeli permits, as the "Peace Now" table 2007 shows. This report also points out that 3330 houses in Area C are ordered to be destroyed, but not implemented yet.

Other measures strictly control all aspects of Palestinian daily life. Prior to the establishment of the Palestinian Authority, no one was allowed to obtain a telephone line, a driving license, or move to another residence or get a job in the public sector without an Israeli intelligence permit. It further controlled Palestinian travel abroad in such a way that they would not be able to come back. For the younger generation, traveling abroad required permission from the Israeli security agencies in advance. Reportedly, the Israeli security agencies used these permissions to travel abroad to coerce Palestinian young people to collaborate with Israeli intelligence. Even if they were granted a permission to travel, they were not allowed to return until six months had passed from the date of travel; later that period was extended to nine months. Once the stay abroad lasted for more than three years, the Palestinian concerned should have the consent of these agencies for the prolongation of his travel permit abroad once a year, for three times at most (for a total of 6 years "permitted" time abroad) -  if he stays abroad without this consent he loses the right to return.

The Israeli military orders allow the security agencies to arrest any Palestinian for a maximum of 18 days, without legal procedures. Later, Israel used administrative detention, a detention without trial, of Palestinians for six months, subject for indefinite renewal.  The Israeli military courts, which operates without standard legal procedures, also repeatedly sentenced many Palestinians to decades of imprisonment. The Israeli military has likewise forcibly deported Palestinians.

Besides forbidding books, newspapers and magazines, including those published in Israel itself, from distribution in the occupied territories, and exercising the upper hand in schools and on education in general, the Israelis deleted certain themes and educational units from Palestinian textbooks. A military governor's order is sufficient for the expulsion of a student from school and for forbidding him from enrolment at any public school in the Palestinian territories. Schools, educational institutes, and universities were ordered closed for long periods of time.

Since its conquest of the West Bank, Israel has separated Jerusalem from the rest of the occupied Palestinian territories, imposed Israeli law there, and prevented Palestinians from the West Bank from moving to live in the city. Later Israeli policy prohibited them from entering it for any reason, unless they had already obtained permission from the Israeli security agencies.  Finally the Israeli government prohibited the city's Palestinian citizens from living somewhere else, even temporarily, under the threat of depriving them of their right to reside in Jerusalem.

Israel has been illegally building Jewish settlements on land confiscated from Palestinians since the start of the occupation. By granting tax exemptions and long-term loans, it has encouraged Jewish settlers to move there. The future construction of an extensive settler-only road network on confiscated Palestinian land after the Oslo Accords were signed, effectively consolidated the presence of these settlements and divided the West Bank into cantons.  Moreover, hundreds of roadblocks are being erected by the Israelis to further disconnect Palestinian towns and villages.

All these Israeli actions above were and remain violations of international law, in particular the Fourth Geneva Convention, despite many UN SC and GA resolutions about the implementation of the Fourth Convention in the occupied Palestinian lands.  The Israeli ultimate purpose was and still is to force the Palestinians to migration, through direct and indirect means, and replace them with Jewish settlers.  

In the backdrop of these illegal actions, the Oslo Accords were signed, which divide the occupied Palestinian territories into "A, B, and C" areas, and the Palestinian Authority was established. Under these circumstances, the Israeli leaders seemed convinced that they are laying down a solution that is not very far from their strategic goals. In this atmosphere the decision to redeploy from Gaza in 2005 was implemented and most probably based on studies and recommendations worked out by Jaffee Institute for Strategic Studies in 1989, aimed to make it easier for them to annex large parts of the land in the West Bank to Israel.

 Building the Wall in the West Bank would put in place temporary borders in this period for the Israeli state, and subject Gaza and the rest of West Bank to a new form of Israeli domination.  The route of the Wall, then, divides the West Bank into easy to control enclaves and sets a new boundary for the state of Israel. The associated regime Israel put in place for Palestinian access to the areas between the Green Line and the Wall would lead to the displacement of the Palestinians who live there, a phenomenon we see happening today.

Indeed, Israel had already ensured the necessary finances, and that the necessary military and administrative orders and procedures were in place, for this enormous undertaking. The Apartheid Wall is 703 km long (while the Green Line–the pre 1967 borders-is only 320 km), and 8 meters high in some areas of its route, as of March 2007. "Its route is also designed to place under Israeli control over 65% of the available sources of water and most of the farmable land".[4] The measures that are effectively taken by Israel and applied to the area between the Wall and Israel, as mentioned above, lead to the forcible displacement of Palestinian inhabitants (some of whom have been displaced multiple times), creating internally displaced persons (IDPs) in the West Bank. The Wall route left about 10.2% of the West Bank land area, and 50,000 people, in areas between the Wall and the Green Line (the so-called seam zone) ruled under a military system that is deliberately designed to gradually force them to immigration eastward.  According to a study conducted by the Palestinian Central Bureau of Statistics (PCBS), some 15,000 Palestinians have been forced to migrate from 145 locations of this zone between 2003-2005. Badil Center for Residency Studies and Refugees' Rights reported that 2700 Palestinians of the Jahalin Bedouins (nomads) are threatened with displacement from a neighboring area to Maaleh Adumim settlement (between Jerusalem and Jericho) because of the Wall.  Approximately 17.3% of Palestinian Jerusalemites have also changed their residence between 2002 and 2007 for the same reason. (For more information on this topic, we advise reference to: "Palestinian Towns and Villages: Between Isolation and Expulsion", a detailed report conducted by MAAN Development Center, based in Ramallah).

For any jurist, the Wall that is being built by Israel in the West Bank is a clear violation of international law. Israel, however, seemed to believe that the case would not reach the ICJ. Such a belief proceeded from its previous experience that US and European consistent support would protect it from the ICJ. Israel still launched an intensive media campaign, and carried out wide diplomatic contacts with a view to marketing its own justifications of the Wall. In its attempt to drive away attention from the actual aim of building the Wall, Israel claimed that its only purpose was to protect its own security. It follows then that the Palestinians are the ones to blame for coercing Israel to build the wall vis-a-vis their actions. Let's look at what Shaul Arieli, of Israel's Jaffee Institute for Strategic Studies, has written about the Wall in his proposed alternative route of the Wall (which shows that security is not the reason for building the Wall):

“Israel's long-term strategic goal is to end the conflict with the Palestinians. This can be done only in an agreement that establishes and anchors modes of political separation between Israel and the Palestinians. …… the Israeli government's policy, reflected in the construction of the separation fence in the Judea and Samaria "seam" zone and in the prime minister's disengagement plan is preferable to the position of the leaders of the Jewish settlements in the territories, who advocate maintaining the current situation. On the other hand, the government's policy tends to postpone the achievement of the strategic goal, and is therefore liable to force Israel to pay an unnecessarily high cost.”[5]

The UN role in the Wall Case:

The subsequent developments show that the US promised Israel not to allow adoption of any resolution in the Security Council against the Wall. So it did. The US vetoed such a resolution on 14 October 2003, thereby paving the way for the General Assembly to request an ICJ advisory opinion on the Wall.

On their part, the Palestinians launched information campaigns, mass activities, legal approaches and diplomatic contacts against the Wall. Through supporters and sympathizers with the Palestinian cause, they managed to mobilize world public opinion (to some extent) against the building of the Wall. At the UN, the Palestinians and the Arabs also managed- as mentioned earlier- to obtain the support of a sufficient number of UN GA member states to pass a resolution requesting the ICJ's legal opinion on the Wall.

 

UN General Assembly Resolution

No. ES-10/14 of 08/12/2003:

“The General Assembly,

Reaffirming its resolution ES-10/13 of 21 October 2003,

Guided by the principles of the Charter of the United Nations,

Aware of the established principle of international law on the inadmissibility of

the acquisition of territory by force,

Aware also that developing friendly relations among nations based on respect

for the principle of equal rights and self-determination of peoples is among the

purposes and principles of the Charter of the United Nations,

Recalling relevant General Assembly resolutions, including resolution 181 (II)

of 29 November 1947, which partitioned mandated Palestine into two States, one Arab

and one Jewish,

Recalling also the resolutions of the tenth emergency special session of the

General Assembly,

Recalling further relevant Security Council resolutions, including

resolutions 242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973,

267 (1969) of 3 July 1969, 298 (1971) of 25 September 1971, 446 (1979) of

22 March 1979, 452 (1979) of 20 July 1979, 465 (1980) of 1 March 1980, 476 (1980)

of 30 June 1980, 478 (1980) of 20 August 1980, 904 (1994) of 18 March 1994,

1073 (1996) of 28 September 1996, 1397 (2002) of 12 March 2002 and 1515 (2003)

of 19 November 2003,

Reaffirming the applicability of the Fourth Geneva Convention1 as well as

Additional Protocol I to the Geneva Conventions2 to the Occupied Palestinian

Territory, including East Jerusalem,

Recalling the Regulations annexed to the Hague Convention Respecting the

Laws and Customs of War on Land of 19073,

- 6 -

Welcoming the convening of the Conference of High Contracting Parties to the

Fourth Geneva Convention on measures to enforce the Convention in the Occupied

Palestinian Territory, including Jerusalem, at Geneva on 15 July 1999,

Expressing its support for the declaration adopted by the reconvened

Conference of High Contracting Parties at Geneva on 5 December 2001,

Recalling in particular relevant United Nations resolutions affirming that Israeli

settlements in the Occupied Palestinian Territory, including East Jerusalem, are illegal

and an obstacle to peace and to economic and social development as well as those

demanding the complete cessation of settlement activities,

Recalling relevant United Nations resolutions affirming that actions taken by

Israel, the occupying Power, to change the status and demographic composition of

Occupied East Jerusalem have no legal validity and are null and void,

Noting the agreements reached between the Government of Israel and the

Palestine Liberation Organization in the context of the Middle East peace process,

Gravely concerned at the commencement and continuation of construction by

Israel, the occupying Power, of a wall in the Occupied Palestinian Territory, including

in and around East Jerusalem, which is in departure from the Armistice Line of 1949

(Green Line) and which has involved the confiscation and destruction of Palestinian

land and resources, the disruption of the lives of thousands of protected civilians and

the de facto annexation of large areas of territory, and underlining the unanimous

opposition by the international community to the construction of that wall,

Gravely concerned also at the even more devastating impact of the projected

parts of the wall on the Palestinian civilian population and on the prospects for solving

the Palestinian-Israeli conflict and establishing peace in the region,

Welcoming the report of 8 September 2003 of the Special Rapporteur of the

Commission on Human Rights on the situation of human rights in the Palestinian

territories occupied by Israel since 19674, in particular the section regarding the wall,

Affirming the necessity of ending the conflict on the basis of the two-State

solution of Israel and Palestine living side by side in peace and security based on the

Armistice Line of 1949, in accordance with relevant Security Council and General

Assembly resolutions,

Having received with appreciation the report of the Secretary-General,

submitted in accordance with resolution ES-10/135,

- 7 -

Bearing in mind that the passage of time further compounds the difficulties on

the ground, as Israel, the occupying Power, continues to refuse to comply with

international law vis-à-vis its construction of the above-mentioned wall, with all its

detrimental implications and consequences,

Decides, in accordance with Article 96 of the Charter of the United Nations, to

request the International Court of Justice, pursuant to Article 65 of the Statute of the

Court, to urgently render an advisory opinion on the following question:

What are 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, as

described in the report of the Secretary-General, considering the rules and

principles of international law, including the Fourth Geneva Convention

of 1949, and relevant Security Council and General Assembly resolutions?[6]

 

 

The result of the vote at the GA was:

 90 for

8 against (Australia, Ethiopia, Israel,, Marshall Islands, Micronesia (FEDERATED STATES OF), Republic Of  Nauru, Palau, US)

19 states did not cast votes (they included Iraq, Afghanistan, Eretria)

And 74 abstentions (including Russia, Bosnia, Chili, Cyprus, Greece, and rest of European countries). 

 

 

ICJ Procedures :

 

The ICJ considered first a number of procedural issues to decide whether to discuss the Wall issue and to present an advisory opinion on it. These issues were:

• Did the General Assembly exceed its jurisdiction in presenting its request or did it abide by correct legal procedures?
• Was the General Assembly meeting, where the resolution was adopted, properly qualified to approach the ICJ for that purpose?
• Was it a political issue? Were there certain drives behind it? What would the possible consequences of the ICJ opinion be?

 

And the ICJ opinion on this was:

 

Article 65, paragraph 1, of the Statute ¾ Article 96, paragraph 1, of the Charter ¾ Power of General Assembly to request advisory opinions ¾ Activities of Assembly.

Events leading to the adoption of General Assembly resolution ES-10/14 requesting the

advisory opinion.

Contention that General Assembly acted ultra vires under the Charter ¾ Article 12,

paragraph 1, and Article 24 of the Charter ¾ United Nations practice concerning the

interpretation of Article 12, paragraph 1, of Charter ¾

 

General Assembly did not exceed its competence.

 

Request for opinion adopted by the Tenth Emergency Special Session of the General

Assembly ¾ Session convened pursuant to resolution 377 A (V) (“Uniting for Peace”) ¾ Conditions set by that resolution ¾

 

Regularity of procedure followed.

 

Alleged lack of clarity of the terms of the question ¾ Purportedly abstract nature of the

question ¾ Political aspects of the question ¾ Motives said to have inspired the request and opinion’s possible implications ¾

 

“Legal” nature of question unaffected.

Court having jurisdiction to give advisory opinion requested.

Discretionary power of Court to decide whether it should give an opinion.

Article 65, paragraph 1, of Statute ¾ Relevance of lack of consent of a State concerned ¾

Question cannot be regarded only as a bilateral matter between Israel and Palestine but is directly

of concern to the United Nations ¾ Possible effects of opinion on a political, negotiated solution to

the Israeli-Palestinian conflict ¾ Question representing only one aspect of Israeli-Palestinian

conflict ¾ Sufficiency of information and evidence available to Court ¾ Useful purpose of

opinion ¾ Nullus commodum capere potest de sua injuria propria  (no one should benefit from their wrong-doing.) ¾ Opinion to be given to the General Assembly, not to a specific State or entity.

 

No “compelling reason” for Court to use its discretionary power not to give an advisory opinion.

 

 

Indeed, the ICJ was not reproached by a claim that it lacked evidence and sufficient information.   After having described the Wall and its historical background, the ICJ  established the legal framework that should be applied.

In this context, the ICJ particularly underlined

-           the UN Charter,

-          the General Assembly Resolution No 2625 (D-25),

-          Illegality of any territorial acquisition resulting from the threat or use of force,

-          right of peoples to self-determination,

-          international humanitarian law,

-          Regulations annexed to the Fourth Hague Convention of 1907, 

-          Fourth Geneva Convention of 1949,

-          Human Rights Law,

-          International Covenant on Civil and Political Rights,  

-          International Covenant on Economic, Social and Cultural Rights,

-          Convention on the Rights of the Child,

-          Relationship between international humanitarian law and human rights law,  

-          Applicability of human rights instruments outside national territory,  

-          Applicability of those instruments in the Occupied Palestinian Territory.

 

The ICJ ruled that these laws and principles are applicable to the occupied Palestinian territories.  On this basis the Israeli settlements in these territories are built in violation of international law. The construction of the Wall and its associated régime  create a “fait accompli” on the ground that could well become permanent, and create the risk of creating a situation on the ground tantamount to de facto annexation.

 

The Court said also that construction of the Wall severely impedes the exercise by the Palestinian people of their right to self-determination and is therefore a breach of Israel’s obligation to respect that right.  Israel's pretext of self –defense, based on Article 51 of the UN Charter, is irrelevant in this case as the threat claimed by Israel emanates from lands it has already occupied and controlled, not from a foreign state. The Court said there are other means where Israel's interests can be protected against the above-mentioned danger.  The ICJ dwelt also on the various aspects where the building of the wall encroaches upon human rights.

In the course of these procedural deliberations, the ICJ reviewed a number of Israel's requests, including a 31 December 2003 memo to the Court and a confidential letter sent to the ICJ Chairman on 15 January 2004, demanding the dismissal of the Egyptian judge Nabil Elaraby from its ranks. The Court turned down the request.

As for Palestine participation in oral and written statements in the Court's deliberations, it said that  “in the light of resolution ES-10/14 and the report of the Secretary-General transmitted with the request, and taking into account the fact that the General Assembly  had granted Palestine a special status of observer and that the latter was co-sponsor of the draft resolution requesting the advisory opinion, Palestine might also submit a written statement”,  in addition to the oral discussions.

 

The ICJ Ruling:

The full text of the final paragraph (para. 163) reads as follows:

 

“For these reasons,

THE COURT,

(1) Unanimously,

Finds that it has jurisdiction to give the advisory opinion requested;

(2) By fourteen votes to one,

Decides to comply with the request for an advisory opinion;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka;

AGAINST: Judge Buergenthal;

(3) Replies in the following manner to the question put by the General Assembly:

A. By fourteen votes to one,

The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka;

AGAINST: Judge Buergenthal;

B. By fourteen votes to one,

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;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka;

AGAINST: Judge Buergenthal;

 

C. By fourteen votes to one,

Israel is 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;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka;

AGAINST: Judge Buergenthal;

D. By thirteen votes to two,

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 created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka;

AGAINST: Judges Kooijmans, Buergenthal;

E. By fourteen votes to one,

The United Nations, and especially 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 and the associated régime, taking due account of the present Advisory Opinion.

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka;

AGAINST: Judge Buergenthal.”

 

As the Advisory Opinion was issued and dispatched to the General Assembly, the latter adopted it by great majority in its Resolution No. A/RES/ES-10/15 of 20 July 2004, which reads:

 

Tenth emergency special session

Agenda item 5

04 44018

Resolution adopted by the General Assembly

[without reference to a Main Committee (A/ES-10/L.18/Rev.1)]

ES-10/15. Advisory opinion of the International Court of

Justice on the Legal Consequences of the Construction

of a Wall in the Occupied Palestinian Territory,

including in and around East Jerusalem

The General Assembly,

Guided by the principles enshrined in the Charter of the United Nations,

Considering that the promotion of respect for the obligations arising from the

Charter and other instruments and rules of international law is among the basic

purposes and principles of the United Nations,

Recalling its resolution 2625 (XXV) of 24 October 1970, on the Declaration

on Principles of International Law concerning Friendly Relations and Cooperation

among States in accordance with the Charter of the United Nations,

Reaffirming the illegality of any territorial acquisition resulting from the threat or use of force,

Recalling the Regulations annexed to the Hague Convention Respecting the

Laws and Customs of War on Land of 1907,1

Recalling also the Geneva Convention relative to the Protection of Civilian

Persons in Time of War of 12 August 1949,2 and relevant provisions of customary

law, including those codified in Additional Protocol I to the Geneva Conventions,3

Recalling further the International Covenant on Civil and Political Rights,4 the

International Covenant on Economic, Social and Cultural Rights4 and the

Convention on the Rights of the Child,5

_______________

1 See Carnegie Endowment for International Peace, The Hague Conventions and Declarations of 1899 and

1907 (New York, Oxford University Press, 1915).

2 United Nations, Treaty Series, vol. 75, No. 973.

3 Ibid., vol. 1125, No. 17512.

4 See resolution 2200 A (XXI), annex.

5 Resolution 44/25, annex.

A/RES/ES-10/15

2

Reaffirming the permanent responsibility of the United Nations towards the

question of Palestine until it is resolved in all aspects in a satisfactory manner on the

basis of international legitimacy,

Recalling relevant Security Council resolutions, including resolutions

242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973, 446 (1979) of

22 March 1979, 452 (1979) of 20 July 1979, 465 (1980) of 1 March 1980,

476 (1980) of 30 June 1980, 478 (1980) of 20 August 1980, 904 (1994) of 18 March

1994, 1073 (1996) of 28 September 1996, 1397 (2002) of 12 March 2002,

1515 (2003) of 19 November 2003 and 1544 (2004) of 19 May 2004,

Recalling also the resolutions of its tenth emergency special session on illegal

Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian

Territory,

Reaffirming the most recent resolution of the fifty-eighth session of the

General Assembly on the status of the Occupied Palestinian Territory, including East

Jerusalem, resolution 58/292 of 6 May 2004,

Reaffirming also the right of the Palestinian people to self-determination,

including their right to their independent State of Palestine,

Reaffirming further the commitment to the two-State solution of Israel and

Palestine, living side by side in peace and security within recognized borders, based

on the pre-1967 borders,

Condemning all acts of violence, terrorism and destruction,

Calling upon both parties to fulfil their obligations under relevant provisions

of the road map,6 the Palestinian Authority to undertake visible efforts on the ground

to arrest, disrupt and restrain individuals and groups conducting and planning

violent attacks, and the Government of Israel to take no actions undermining trust,

including deportations and attacks on civilians and extrajudicial killings,

Reaffirming that all States have the right and the duty to take actions in

conformity with international law and international humanitarian law to counter

deadly acts of violence against their civilian population in order to protect the lives

of their citizens,

Recalling its resolution ES-10/13 of 21 October 2003, in which it demanded

that Israel stop and reverse the construction of the wall in the Occupied Palestinian

Territory, including in and around East Jerusalem,

Recalling also its resolution ES-10/14 of 8 December 2003, in which it

requested the International Court of Justice to urgently render an advisory opinion

on the following question:

“What are 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, as described in the report of

the Secretary-General, considering the rules and principles of international

law, including the Fourth Geneva Convention, of 1949, and relevant Security

Council and General Assembly resolutions?”,

_______________

6 S/2003/529, annex.

A/RES//ES-10/15

3

Having received with respect the advisory opinion of the Court on the Legal

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

rendered on 9 July 2004,7

Noting in particular that the Court replied to the question put forth by the

General Assembly in resolution ES-10/14 as follows:8

“A. The construction of the wall being built by Israel, the occupying Power,

in the Occupied Palestinian Territory, including in and around East

Jerusalem, and its associated regime, are contrary to international law;

“B. 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;

“C. Israel is 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;

“D. 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 created by such construction; all

States Parties to the Fourth Geneva Convention relative to the Protection

of Civilian Persons in Time of War of 12 August 1949 have in addition

the obligation, while respecting the United Nations Charter and

international law, to ensure compliance by Israel with international

humanitarian law as embodied in that Convention;

“E. The United Nations, and especially 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

and the associated regime, taking due account of the present Advisory

Opinion.”,

Noting that the Court concluded that “the Israeli settlements in the Occupied

Palestinian Territory (including East Jerusalem) have been established in breach of

international law”,9

Noting also the statement made by the Court that “Israel and Palestine are

under an obligation scrupulously to observe the rules of international humanitarian

law, one of the paramount purposes of which is to protect civilian life”,10 and that

“in the Court’s view, this tragic situation can be brought to an end only through

implementation in good faith of all relevant Security Council resolutions, in

particular resolutions 242 (1967) and 338 (1973)”,10

Considering that respect for the Court and its functions is essential to the rule

of law and reason in international affairs,

_______________

7 See A/ES-10/273 and Corr.1.

8 Ibid., para. 163.

9 Ibid., para. 120.

10 Ibid., para. 162.

A/RES/ES-10/15

4

1. Acknowledges the advisory opinion of the International Court of Justice

of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory,7 including in and around East Jerusalem;

2. Demands that Israel, the occupying Power, comply with its legal

obligations as mentioned in the advisory opinion;

3. Calls upon all States Members of the United Nations to comply with

their legal obligations as mentioned in the advisory opinion;

4. Requests the Secretary-General to establish a register of damage caused

to all natural or legal persons concerned in connection with paragraphs 152 and 153

of the advisory opinion;

5. Decides to reconvene to assess the implementation of the present

resolution, with the aim of ending the illegal situation resulting from the

construction of the wall and its associated regime in the Occupied Palestinian

Territory, including East Jerusalem;

6. Calls upon both the Government of Israel and the Palestinian Authority

to immediately implement their obligations under the road map,6 in cooperation

with the Quartet, as endorsed by Security Council resolution 1515 (2003), to

achieve the vision of two States living side by side in peace and security, and

emphasizes that both Israel and the Palestinian Authority are under an obligation

scrupulously to observe the rules of international humanitarian law;

7. Calls upon all States parties to the Fourth Geneva Convention2 to ensure

respect by Israel for the Convention, and invites Switzerland, in its capacity as the

depositary of the Geneva Conventions,11 to conduct consultations and to report to

the General Assembly on the matter, including with regard to the possibility of

resuming the Conference of High Contracting Parties to the Fourth Geneva

Convention;

8. Decides to adjourn the tenth emergency special session temporarily and

to authorize the President of the General Assembly at its most recent session to

resume its meeting upon request from Member States.

27th plenary meeting

20 July 2004

I believe this resolution of the GA is of paramount importance, especially in terms of strengthening the Court's Advisory Opinion and of turning it into part of the international law. We should also pay greater attention to "Item 7" which calls on Switzerland to move forward to resume the conference of High Contracting Parties to the Fourth Geneva Convention, to ensure respect by Israel for this Convention and reinforcing its application to the occupied Palestinian territories.

 

Israel's Position

Israel has continued to reject the jurisdiction of the ICJ, even after the Advisory Opinion and the General Assembly Resolution were issued. It added some feeble argument on the resolution and how it was adopted. However, the Israeli government made use of a lawsuit under consideration by the Israeli High Court, (H.C.2056/04 Bet Sourik Village Council V. Government of Israel), about the Wall to present its viewpoint of the ICJ opinion which included:

1-That parts of the Wall route pass through Israel (pre-1967 borders). As for those parts of the Wall route which lie behind the Green Line (in the occupied territories) and concern this lawsuit, only security reasons emanating from the topographical nature of the area dictated that route.

1. That owners of those lands were offered compensation for the land use. Moreover, gates were opened in the wall to facilitate these residents' access to their planted fields.
2. Israeli courts are open for the Palestinians, where they can challenge the government's decisions.
3.  The ICJ dealt with the Wall as one unit, whereas some of its parts are built inside Israel (1967 borders).
4. The decision to build the Wall was made because of the terrorist threats, and to protect Israeli citizens and residents, not for any other reason. ICJ didn't consider this justification.
5. The ICJ's Advisory Opinion should not be used at the Israeli High Court.
6. That the position of the Israeli government on this case was, and continues to be, a rejection of having it considered by any international legal body.
7. That the ICJ based its deliberations on UN reports, which were general, inaccurate and unbalanced.
8. That the ICJ disregarded the changes which Israel had made on the Wall's route to protect the land owners' interests as much as possible. After the Advisory Opinion was made, Israel made further changes to the Wall's route, an additional justification for not using it at an Israeli court.

In fact, the ICJ had discussed all these aspects in its deliberations. It also defined and explained the position of international law on them. It is enough to read the summary of the resolution, where the ICJ rejected the Israeli position that the pretext of security gave it the right to violate international law and to carry out these actions in the occupied territories by military orders that violate international law.  That was rightfully rejected by the ICJ. 

The official Palestinian party seems to be content with the resolution as such. So far, it has not invested in that event, neither has it used, mentioned or called for its implementation. That is what happened in the November 2007 Annapolis Conference, during negotiations with Israel, and in meetings with international players in the Palestinian- Israeli conflict.

 

Significance of the Advisory Opinion:

1-It was the first time that a Palestinian rights-related issue, and Israel's encroachment on these rights, were reviewed by the International Court of Justice. Indeed, that was a great success for the Palestinians and the Arabs as a whole, especially as it came out in spite of the strong opposition on the part of the US, and even Europe.

1. Though the Wall was the main subject, the resolution assumed a character of universality, as the ICJ found itself involved in discussing other aspects of the occupation. It thus strengthened with legal justification the resolutions of the UN General Assembly and Security Council, such as the illegality of the settlements, Jerusalem as part of the occupied territories, the viability of the 4^th Geneva Convention, in addition to the illegality of the wall.
2. The resolution put an end to the dispute on the definite article in the UN Resolution 242 by its legal interpretation that the occupied Palestinian territories are all those lands occupied by Israel in 1967. In other words, they are the territories which lie between the Armistice Line of 1949 and the international borders of Jordan and Egypt.
3. The ICJ confirmed that the adoption of such a resolution does not affect the peace negotiations. The significance of such a statement lies in the fact that the US, Israel, and very often Europe, have long used this fake pretext to hamper attempts by other parties aimed at issuing decisions condemning Israeli crimes. The best example was when the high contracting parties to the 4^th Geneva Convention met to discus the continuous Israeli refusal to apply it to OPT and take decisions against Israel, the US successfully prevented the discussion on measures against Israel by arguing that this would affect peace negotiations. Unfortunately, the Palestinian leadership acquiesced in, and finally agreed to adjourn, the meeting.
4. The ICJ reiterated that all states, especially the signatories to the Geneva Conventions, bear their own responsibilities, and make sure that Israel abides by international law as stated in the Conventions. Literally, this means they have to take measures to compel Israel to do so.
5. The ICJ resolved that the Security Council, General Assembly in particular, and the UN in general, take any other necessary measure that ends the illegal situation created by the Wall construction and its associated regime, bearing in mind this Advisory Opinion.
6. With a vote categorically different from the one that requested the opinion, the General Assembly endorsed the Advisory Opinion of the ICJ on the wall (165 votes in support, 6 against and 15 abstentions), in the resolution of 20 July 2004. This further supports the inclusion of this opinion as part of international law. 
7. This resolution entitles the Palestinians to use this opinion to call on the world community to impose sanctions on Israel until it removes the Wall, and adheres to the application of the Geneva Conventions in the occupied territories.
8. The ICJ opinion also underlines the call to the Security Council to take procedural measures to oblige Israel to remove the Wall. If the US vetoes an ICJ opinion, it would then be the first time in the history of the SC that the veto was used against an ICJ opinion. Hence the US will exert every effort not to use the veto against the ICJ opinion. It is left up to the Palestinian leadership how to proceed. Either the US would take an unprecedented step in its history, or give a golden opportunity for the Palestinians to press the US.

10- This ICJ opinion teaches the Palestinians a lesson.  We must insist on international law in all negotiations, and not agree to replace it with promises or guarantees from the US or others.