Consequences of the Construction of a Wall in the Occupied Palestinian
of the International Court of Justice, July 9th 2004
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 .
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 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.”
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.
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
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.”
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.
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
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.”
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
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
Ruling and Judges
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."
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.
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.
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
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
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.
unlikely that Israel will end Hamas and organisations like it through
alone. Unless Israel starves or kills practically every man, woman and
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
fighting, now is the time for fighting.” We might wonder whether he
is the time” in part because of upcoming Israeli elections and
in the White House. We might reply that there is no time for massacres
the time for peace is long overdue.
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.
Consequences of the Construction of a Wall in the Occupied Palestinian
of the International Court of Justice, July 9th
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.