From: "Middle East Report Online" <[EMAIL PROTECTED]>
Subject: World Court's Ruling on Wall Speaks with Utmost Clarity
Date: Tue, 27 Jul 2004 20:52:24 -0400
World Court's Ruling on Wall Speaks with Utmost Clarity
Nidal Sliman
July 27, 2004
(Nidal Sliman is a Palestinian lawyer from Israel, and a J.S.D. candidate at
Notre Dame University Law School.)
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.
-----
The International Court of Justice advisory opinion and the justices'
separate opinions are accessible online at:
http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm
The winter 2003 issue of Middle East Report, "International Justice, Local
Injustices," focuses on political obstacles to implementing decisions of
international legal bodies in the Middle East.
Order back issues of Middle East Report, or subscribe, via a secure server
at MERIP's home page: http://www.merip.org
Middle East Report Online is a free service of the Middle East Research
and Information Project (MERIP).
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