General Assembly resolution ES-10/14 of 8 December 2003 requested the International Court of Justice (ICJ) to give 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?”
Right of self-determination
The Court gives a variety of reasons for this conclusion, but the primary reason is that it infringes upon the right of the Palestinian people to self-determination as laid down in Article 1 to the UN Charter.
In coming to that conclusion, the Court rejected Israel’s assertion that the wall is a temporary security barrier without any political significance, which can be taken down at any time as part of a political settlement. Rather, the Court comes close to saying that the construction of the wall is a preliminary to the annexation by Israel of the so-called Closed Area lying between the Green Line and the wall:
“The Court considers that the construction of the wall and its associated régime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.” (paragraph 121)
That essentially political judgement about Israel’s intentions is central to the Court’s final conclusion.
The Opinion notes that the route of the wall seems to have little to do with the security of Israel, but to have been chosen with one aim in mind: to include as many settlers as possible within the Closed Area:
“The Court notes that the route of the wall as fixed by the Israeli Government includes within the ‘Closed Area’ … some 80 per cent of the settlers living in the Occupied Palestinian Territory. Moreover, it is apparent … that the wall’s sinuous route has been traced in such a way as to include within that area the great majority of the Israeli settlements in the occupied Palestinian Territory (including East Jerusalem).” (paragraph 119)
The net result would be that:
“… the planned route would incorporate in the area between the Green Line and the wall more than 16 per cent of the territory of the West Bank. Around 80 per cent of the settlers living in the Occupied Palestinian Territory, that is 320,000 individuals, would reside in that area, as well 237,000 Palestinians. Moreover, as a result of the construction of the wall, around 160,000 other Palestinians would reside in almost completely encircled communities.” (paragraph 122)
The Opinion also notes that the construction of the wall has been accompanied by the creation of a new administrative régime:
“Thus in October 2003 the Israeli Defence Forces issued Orders establishing the part of the West Bank lying between the Green Line and the wall as a “Closed Area”. Residents of this area may no longer remain in it, nor may non-residents enter it, unless holding a permit or identity card issued by the Israeli authorities. According to the report of the Secretary-General, most residents have received permits for a limited period. Israeli citizens, Israeli permanent residents and those eligible to immigrate to Israel in accordance with the Law of Return may remain in, or move freely to, from and within the Closed Area without a permit. Access to and exit from the Closed Area can only be made through access gates, which are opened infrequently and for short periods.” (paragraph 85)
(It appears that Jews resident in New York are allowed to move freely within the Closed Area but Arabs who have lived there all their lives have to seek a permit from the Occupying Power to do so).
All this led the Court to their tentative conclusion that the wall was not a temporary security fence, as claimed by Israel, but a first step towards annexation of the Closed Area, and therefore its construction “severely impedes the exercise by the Palestinian people of its right self-determination, and is therefore a breach of Israel’s obligation to respect that right” (paragraph 122).
Fourth Geneva Convention
The Court also finds (paragraph 132) that in constructing the wall Israel has breached the Fourth Geneva Convention (on the Protection of Civilians Persons in Time of War), because the destruction or requisition of property in order to make way for the wall is contrary to Article 53 of the Convention, which says:
“Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”
Confiscating property is also contrary to the Hague Regulations of 1907, article 46 of which says that private property must be “respected” and that it cannot “be confiscated”.
(Alone in the world, Israel has always insisted that the Fourth Geneva Convention doesn’t apply to the West Bank and Gaza, because, it says, these areas are not “occupied territories” within the meaning of the Convention. Its argument, such as it is, arises from the indefinite status of the West Bank and Gaza in 1967.
Article 49, paragraph 6, of the Convention says:
“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
The presence of that paragraph in the Convention is the real reason why Israel cannot possibly concede that it applies to the West Bank and Gaza. To do so, would be to concede that establishment of settlements there is contrary to the Convention.
Successive Security Council resolutions, beginning with number 446 passed on 22 March 1979, have asserted that the Convention does apply and demanded that settlement activity stop, on the grounds that it is contrary to the Convention. The US did not disagree with that view, otherwise these resolutions would not have passed.
Paragraphs 90-101 of the Advisory Opinion are devoted to arguing, and concluding, that the West Bank and Gaza are “occupied territories” within the meaning of the Convention. And paragraph 120 concurs with the Security Council’s view that settlement activity is contrary to the Convention.)
Paragraph 133 of the Opinion summarises a variety of other ways in which the lives of Palestinians have been affected adversely by the construction of the wall and the imposition of its associated régime:
“That construction, the establishment of a closed area between the Green Line and the wall itself and the creation of enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto). Such restrictions are most marked in urban areas, such as the Qalqiliya enclave or the City of Jerusalem and its suburbs. They are aggravated by the fact that the access gates are few in number in certain sectors and opening hours appear to be restricted and unpredictably applied. …
“There have also been serious repercussions for agricultural production, as is attested by a number of sources. …
“It has further led to increasing difficulties for the population concerned regarding access to health services, educational establishments and primary sources of water. …
“In this respect also the construction of the wall would effectively deprive a significant number of Palestinians of the “freedom to choose [their] residence”. In addition, however, in the view of the Court, since a significant number of Palestinians have already been compelled by the construction of the wall and its associated régime to depart from certain areas, a process that will continue as more of the wall is built, that construction, coupled with the establishment of the Israeli settlements …, is tending to alter the demographic composition of the Occupied Palestinian Territory.”
In view of that, paragraph 134 concludes that, by the imposition of this régime on Palestinians, Israel has acted contrary to various international conventions:
“To sum up, the Court is of the opinion that the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights.
“They also impede the exercise by the persons concerned of the right 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 in the United Nations Convention on the Rights of the Child.
“Lastly, the construction of the wall and its associated régime, by contributing to … demographic changes …, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions [446, 452 & 465].”
The Opinion ends with a formal response to the question put to the Court by the General Assembly. It is as follows (paragraph 163):
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 régime, 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 régime, taking due account of the present Advisory Opinion.
(The Court came to conclusions A, B, C & E by 14 votes to 1, and to D by 14 votes to 2. An American judge, Thomas Buergenthal, dissented in each instance, saying that the Court had not taken proper account of Israel’s security needs, though he didn’t go so far as to say that the wall was justified by Israel’s security needs. A British judge, Rosalyn Higgins, voted for all five conclusions.)
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