The International Court of Justice (ICJ) Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
“Where We Are 5 Years Later? “

On Thursday, July 9, 2009 it will be the 5th year anniversary of the International Court of Justice's Advisory Opinion regarding the illegality of the separation wall constructed on Palestinian lands by the occupying Israeli forces. 

Unfortunately, the ICJ's ruling has been continuously ignored by the Israeli government and the international community even though the Advisory Opinion is clear in its denouncing of the separation wall, and it is clear in its call for Israel to dismantle the separation wall and cease all illegal occupying activities, including demolition of homes, confiscating of lands, and restricting the movement people in the West Bank and East Jerusalem. Photo 1

Photo 1: A Palestinian passing by the huge blocks of the Israeli Segregation Wall  Bethlehem Area.

Five years later, it is important to highlight the background and legality of the International Court of Justice and the correlating international laws and conventions.  Included in this article are the exact five summary points found by the International Court of Justice.  By summarizing the current situation, we can prove, in facts, how the Israeli government has continued its illegal activities against the Palestinian people, even after the clarity of the Advisory Opinion.  Finally, we call to the General Assembly to take the Advisory Opinion to the Security Council, on 5th anniversary of the Advisory Opinion, to finally take the correct actions to bring security and justice to the Palestinian people and their lands.  The Palestinian people cannot wait another 5 years for action from the United Nations.

International Court of Justice

The International Court of Justice is a critical, judicial arm of the United Nations.  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 United Nations General Assembly and Security Council may request advisory opinions on “any legal question”.

The International Court of Justice is of critical importance because of the silence forced upon the Security Council by the veto power of the permanent members.  The Security Council consists of five permanent members who are China, France, the Russian Federation, the United Kingdom, and the United States, and ten non-permanent members.  The permanent members wield consider power since they have veto power; meaning that any of the five members can reject a decision or motion. 

On several different occasions, specifically the Tenth Emergency Special Session in 1997 and a reconvened session in October of 2003, the Security Council was unable to take a decision on the case of certain Israeli actions in the Occupied Palestinian Territory because of a rejecting vote of one of the permanent members.  The United Nations resolution 377 A (V) set by the Tenth Emergency Special Session clearly states that 'if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security … the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to the Members for collective measures … .

It is the responsibility of the General Assembly (which represents the collective body of all nations) to act when they believe the Security Council (which is strongly controlled by only 5 of the world's most powerful states) is not fulfilling their duties. 

The Court based its decision on numerous United Nations Resolutions, international laws and conventions, and on international legal precedent.  Most notable of those UN resolutions, is UN resolution 2625 (XXV) highlighted below:

This resolution is used to highlight the illegal actions taken by the Israeli government in the construction of the separation barrier.  The separation barrier isolates Palestinian villages, destroys farmland and any possibility for an encouraging business climate, and cuts the Palestinian state into separate discontinuous pieces.  All of these consequences of the separation wall harm the possibility for a future Palestinian state, and deny the right of self-determination to the Palestinian people.

Because of the silence of the Security Council regarding the illegal actions taken by the Israelis through the construction of the segregation wall, the General Assembly submitted the official request on December 10, 2003 to the International Court of Justice for an Advisory Opinion on the security wall.  It is critical to highlight that it wasn't a Palestinian entity or an Arab entity that requested the Advisory Opinion  Rather, it was the general consensus of the international community which is represented through the General Assembly. The question posed in resolution ES-10/14 is as follows:

Advisory Opinion

It is not surprising that the Court's Advisory Opinion strongly rebuked Israeli's actions in creation of the security wall, and exposed Israel's false claims that the security wall is the only option for the defense of their country.

The Advisory Opinion  declared that the occupying force (Israel) was taking illegal actions against the Palestinian people, land, and livelihood.  The Court voted on and gave five responses to the question put forward by the General Assembly in resolution ES-10/14.  The opinion is quoted below:

1. 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.
2.  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 build in the OPT, 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.
3. Israel is under an obligation to make reparation for all damages caused by the construction of the wall in the OPT, including in and around East Jerusalem.
4. 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 embodied in that Convention.
5. 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 associated regime, taking due account of the present Advisory Opinion.

Additionally, the Court was also not persuaded by the Israeli response to claims they are not violating the 49th paragraph of the 4th Geneva Convention because of the military necessities of such establishments.  In the summary of Advisory Opinion, it states that 'the Court is not convinced that the destructions carried out contrary to the prohibition in that Article were 'rendered absolutely necessary by military operations' so as to fall within the exception'. 

Furthermore, 'the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order'.  The Court's Advisory Opinion dismisses Israel's claim that it must build the security wall but stating that the wall could be built on Israeli land, not occupied land.  The Court also points out that the exceptions to the norms and conditions of international law require that there be no other alternates to maintaining national security while the Court is not convinced that the construction of the wall, along the route which is chosen, is the only way to protect Israeli national security. 

The Court determines that it is Israeli's first obligation to return any confiscated lands, and only if this is not materially possible to compensate the people damaged by the wall.

Facts on the Ground

The main purpose of this article is to expose the Israeli actions, and to show that they are consciously defying the will of the Advisory Council and the international community by continuing their illegal actions in the Occupied Palestinian Territory.  The information below has been gathered by the Applied Research Institute – Jerusalem (ARIJ).

Not only has Israel not dismantled the wall, and refrained from their illegal actions but rather they have increased the length of the wall on Palestinian lands the West Bank.  The facts below are irrefutable and gathered in the hope that they will expose the Israeli motives which are counter to peace and justice.

The Israeli Segregation Wall

The segregation wall snakes around the Occupied Palestinian Territory, including Israeli settlements into the Israeli side of the wall and cutting deep into Palestinian lands (see Map 1 below of segregation wall as of 2008).

The Court's Advisory Opinion notes that the security wall is 'an attempt to annex the territory contrary to international law'.  The Advisory Opinion also noted that 'the de  facto annexation of land interferes with the territorial sovereignty and consequently with the right of the Palestinians to self-determination'. See Map 1

Map 1: The path of the Israeli Segregation Wall in the Occupied Palestinian Territory

Israel began implementing a unilateral segregation plan (Hafrada) in the West Bank  in June 2002.  The plan included building a segregation wall, and also a segregation 'buffer zone', most of which is built inside the Green Zone on Palestinian land.  In the beginning, the segregation zone consists of either a 40 -100 meters wide double layered fence or a 8-9 meters high concrete wall.

Accordingly, 138 Palestinian villages will loose 555 km² of their lands behind the Segregation Wall, 29 Palestinian villages will be totally isolated behind the Segregation Wall, and 107 settlements and 56 established outposts will be included within the Western Segregation Zone (they hold 80+% of the Israeli settlers’ population in the OPT).

Currently, 425km of construction (55.2% of the total length) is completed in West Bank with an additional 67km of construction (8.7% of the total length) underway in the West Bank.  Furthermore, there are 278km of planned construction (36.1% of the total length) in the West Bank. 

Only 128km (17.6% of the total length) runs on the 1949 Armistice Line (Green Line).  For details on the different paths of the Segregation Wall and the Green Line, refer to Map 1 and track the different routs of the red Segregation Wall and the green Armistice Line.  See Figure 1

Figure 1: Current Status of the Wall – Construction Accelerating Instead of  Dismantling.

The Israeli government has flagrantly ignored the call from the ICJ in their Advisory Opinion to not only cease construction but to dismantle the segregation wall.  The most recent plan released by Israel was in 2007 and shows an acceleration in construction instead of dismantling.  

• The wall has increased from 645 km in 2004 to 770 km in 2007, an increase of 125 km (20%).

• Additionally. the amount of area isolated behind the Segregation Wall has increased from 633 km square in 2004 to 733 km square in 2007, an increase of 100 km square (16%). 

• The Buffer Zone area, which only extends into Palestinian areas not into Israel areas, has been increased from 150 meters to 300 meters in some places.

Changes in the Segregation Wall Route between June 2004 and April 2007

Source: Applied Research Institute – Jerusalem

Israel's Political Maneuvering on the Segregation Wall

While the Israeli government contends that the Segregation Wall is a temporary structure installed for security, others in the government reveal their true intentions to make the Segregation Wall the permanent border. 

In November of 2005, Tzipi Livni who was at that time Justice Minister, stated that  the Segregation Wall would serve as ' the future borders of the state of Israel' and that 'the High Court of Justice, in its rulings over the fence, is drawing the country's borders'.  Many times stated in court, when petitions against the separation fence were being heard, it was stated by the State that the barrier is a 'security' wall rather than a 'political' fence, and that it is a temporary measure. 'Just as the fence has been built, so it can be taken down or moved,' the prosecution has often stated. 

She further stated that 'One does not have to be a genius to see that the fence will have implications for the future border. This is not the reason for its establishment, but it could have political implications.'  Supreme Court Justice Mishael Cheshin who participated in the conference, told Livni, 'that is not what you have contended in court.'

While the Israelis struggle over a consistent political spin of the situation, it is obvious that Israel plans to use the Segregation Wall as a future border, which will result in a confiscation of Palestinian land and creation of a discontinuous Palestinian state.

United Nations Creates Register of Damages

The resolution was passed overwhelmingly by the General Assembly, by a recorded vote of 162 in favor with only 7 against (Australia, Federated States of Micronesia, Israel, Marshall Islands, Nauru, Palau, United States). 

Even though there was on overwhelming consensus that a register of damages was necessary, the Israeli government immediately announced its opinion that a register was not necessary and from that day forward has not cooperated in any fashion on its creation.  The Israel representative on the day of the vote regarding the register of damages claimed that 'the mechanism was not a 'register of damage' but a 'register that does damage'' and that they had already created their own registration for damages and were already compensating Palestinians who have been negatively affected by the segregation wall.  How can an occupying force be a legitimate accountable force for its own actions? 

The Register of Damages is moving at an extremely slow pace.  Since its inception on 2006, the registry has only been able to survey 4 villages in the northern section of the West Bank.  Furthermore, the registry has only received claims from these towns, and investigations are still pending.  It will inevitably take decades to complete this slow process of surveying the damages caused by the segregation wall. Furthermore, the registry is being treated as a political tactic in order for the international community to be tricked into believing there is an active investigation into the damages caused by Israel. 

The need for the Register of Damages would diminish if the Israeli government would cease its construction of the segregation wall, and confiscation of lands on in the buffer zones.  While the registry struggles to account for damages in just a few towns, the Israeli government increased the wall (by 20% from 2004) and the isolated areas (by 16% since 2004) causing even more damages.  How can the registry keep up with these accelerating Israeli actions?

A Call for Action to the United Nations Security Council and General Assembly

The written request of the General Assembly in its resolution ES-10/14 for an advisory opinion on the legal consequences arising from the construction of the wall being build by Israel' is only the first step of which the United Nations is responsible. 

The advisory opinion was set to call for Israel to 'cease forthwith the works of construction of the wall' and 'to make reparation for all damages' and for the international community to 'to recognize the illegal situation resulting from the construction of the wall', and finally for the General Assembly and the Security Council to 'consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and associated regime'.

Now, it is in the hands of the General Assembly to bring the advisory opinion to the Security Council for direct action.  After the presentation of clear facts, and the obvious obstructive and ignorant actions by Israel, it is the responsibility of the United Nations to intervene in the name of justice and peace.

Most recently, the new US President Barack Obama has taken a balanced approach to the Palestinian-Israeli conflict, specifically by demanding a stop to all settlements (natural growth, outposts, etc).  In the past, the United States has acted to protect Israel in the United Nations by using or threatening to use their veto in the Security Council.  President Obama can now prove his commitment to a fair and balance Middle Eastern policy by insisting that the Israeli 

government comply with the ICJ Advisory Opinion and dismantle the Segregation Wall.   

The Palestinian people are waiting for the United Nations to uphold their responsibilities as outlined in the UN Charter 'to save future generations from the scourge of war' and 'to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small' 

The Palestinian people have waited 5 years since the Advisory Opinion was issued, and sixty one years since they were expelled from their lands in 1948.  How many future findings, opinions, rulings, or declarations need to be made before there is justice?

Refrences:-

[1] http://www.icj-cij.org

[2] Summary of Advisory Opinion, pg 2.
[3] Summary of Advisory Opinion, pg 11-12.
[4] http://www.un.org/News/Press/docs/2006/ga10560.doc.htm

[5] United Nations Charter, Preamble, http://www.un.org

Prepared by:
The Applied Research Institute – Jerusalem