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.)
Labour & Trade Union Review
August 2004