ICJ Advisory Opinion is an International Judiciary Opinion for the Interest of the Palestinian People
ICJ Advisory Opinion is an International Judiciary Opinion for the Interest of the Palestinian People
On 7 July 2015 the Palestinian people celebrated the 11th anniversary of the International Court of Justice (ICJ) Advisory Opinion as a significant judicial opinion for the interest of the Palestinian people. The opinion reaffirms the illegality of the construction of the Apartheid and Expansion Wall and calls for its dismantlement.
Advisory opinions of the ICJ hold great legal weight and are attributed to the formulation and development of international law. It is of considerable significance as official jurisprudence of the highest judicial body in the United Nations Systems to explicitly assert that the Wall is a key component of the Israeli settlement and annexation enterprise in direct violation of international law and the human rights of the Palestinian people.
- ICJ deemed the Wall and Israeli settlements illegal under international law and international humanitarian law, and called on Israel to immediately halt construction of the Wall, including in and around East Jerusalem, and dismantle the sections already built. Moreover, ICJ demanded that Israel repeal any and all legislation or regulations associated with the Wall construction, and make reparations for the damages caused as a result of its construction and damage made to Palestinian infrastructure and property, including returning all “land, orchards, olive groves and other immovable property seized” to their owners.1
- According to the Advisory Opinion, the Wall violates the inalienable rights of the Palestinian people to self-determination. The ICJ Advisory Opinion states that all States are under an obligation not to recognize the illegal situation resulting from the construction of the Wall and to remove all obstacles that prevent the Palestinian people from exercising their right to self-determination.
“Given 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 Convention.”
Annexation and Expansion Wall Bolsters Systematic Apartheid
The construction of the annexation and expansion Wall is Israel’s unilateral political and racial enterprise to draw the borders of the future State of Palestine and preserve Israel’s own security and expansionist interests at the expense of Palestinian land. It is Israel’s preemptive measure to curb any final status agreement with the Palestinians. In addition, the construction of the Wall is inhumane and unethical since it obstructs peaceful coexistence, entrenches systematic apartheid and segregation, and creates a fait accompli situation on the ground.
- Special UN rapporteurs concerned about human rights situation in the occupied Palestinian territory found that the Israeli occupation regime and the incorporation of settlements and the Wall have precipitated institutional discrimination and systematic segregation, and have led to serious human rights violations. UN rapporteurs described the Israeli regime as “one of the longest occupations characterized by colonialism and apartheid.”2
- UN organizations such as the UN Committee on the Elimination of Racial Discrimination3 have supported the findings of UN rapporteurs. “It follows that these Israeli violations trigger not only state responsibility, but also individual criminal liability under the Rome Statute of the ICC and other standards of international criminal law.”4
Eleven years after ICJ Advisory Opinion on the Wall in Occupied Palestine
The annexation and expansionist Wall is part and parcel of the Israeli illegal settlement enterprise. Eleven years have passed since the ICJ issued the Advisory Opinion and Resolution ES-10/15, but the Israeli government continues to blatantly defy it and persists in committing grave breaches, gross violations and codified crimes.
Facts and Numbers5
- Approximately 85 percent of the route of the Wall runs inside the West Bank, including East Jerusalem.
- 65 percent of the Wall has been completed, 6 percent is still currently under construction, and 29 percent is planned, but not yet constructed.
- The Wall isolates approximately 9 percent of the West Bank, including East Jerusalem and the Latrun Valley.
- The Wall’s total length is approximately 714 kilometers, more than twice the length of 323-kilometer-long 1967 border. For example, Ariel and Kadumim settlements run 22 kilometers into the West Bank.
- Approximately 150 Palestinian communities own land between the Wall and the Green Line.
- Around 85% of the Israel’s settler population is located between west of the wall and the Green line.
- The Wall has left some 11,000 West Bank Palestinian residents isolated between the Wall and the Green Line.
- Upon the completion of the planned construction of the Wall, another 25,000 West Bank Palestinian residents will be isolated between the Wall and the Green Line.
- 1,400 Palestinians holding Palestinian ID’s and living in 17 communities are annexed to East Jerusalem side of the Wall, directly impacting their residency status and their access to employment, healthcare facilities, and education services in East Jerusalem.
- Approximately 100,000 Palestinian East Jerusalem residents now live on east side of the Wall.
- Palestinian residents aged 16 and older are required to apply for ‘permanent resident’ permits with Israel so as to continue living in their own homes.
The ICJ stated that the sections of the Wall’s route which run inside the West Bank, including East Jerusalem, together with the associated gate and permit regime, violate Israel’s obligations under international law.
Even residents who manage to obtain entry permits from the Israeli military authorities have to go through designated metal gates in order to reach the area between the Wall and the Green Line.
- Currently, there are 81 agricultural gates that open during the olive harvest season, and usually 9 of these gates open daily for a limited period. In addition, there are 9 other gates that open for one or more days during the week. Wall gates impede farmers’ access to their agricultural land for most of the year.6
- The entry of Palestinians from the rest of the Palestinian territory into Jerusalem is restricted by 4 of 13 military checkpoints around the city. Incorporated within the Wall, the Israeli military checkpoints have severely restricted Palestinian access to East Jerusalem and entrenched the isolation of the city from the rest of the West Bank.
Examples of Areas Affected by the Wall Cremisan Valley
One of the last areas in the Bethlehem District with vast stretches of agricultural lands and recreational grounds, Cremisan Valley is situated between the Israeli settlement of Gilo in the Jerusalem District, and Israeli settlement of Har Gilo near Bethlehem. Cremisan Valley is rich in natural resources with abundant olive trees groves, almond trees and grapevines.
Israel, the occupying power, has been trying to annex Palestinian-owned land in the Cremisan Valley to the borders of Israel through the construction of the Wall, carrying out its colonial expansionist plans and connecting Israeli settlements. In practice, the annexation of land adjacent to the city of Bethlehem will isolate Bethlehem from the City of Jerusalem.
In 2006, the Israeli military authorities issued an order for the construction of the Wall on Cremisan Valley land in the town of Beit Jala. The construction of the Wall, if it takes place as planned, will separate 58 Christian families and the Salesian Sisters Convent and School from their land. The Wall will annex the Convent’s kindergarten and effectively split the valley into two separate entities thereby segregating Beit Jala and neighboring villages from the largest portion of the agricultural land west of the Wall.
Moreover, as a result of the construction of the Wall, the Christian community will forfeit one of its most historic and religious traditions. May marks the annual Feast of the Blessed Virgin Mary. Organized by the Catholic community, the congregation carries a statue of the Virgin Mary and marches from the Cremisan Convent to the Annunciation Church in Beit Jala.
On 7 July 2015, the Israeli Supreme Court issued a decision giving the green light to the Israeli military authorities to initiate the construction of the annexation and expansion Wall in the Cremisan Valley, noting that last April, after a lengthy legal battle lasting nine years, the same Court issued a decision rejecting the proposed route of the Wall in Cremisan Valley as it will inflict considerable damage upon the rights of the population and holy sites. At that time, the Court ordered the Israeli army to adjust the route of the Wall, keep the convents and monasteries on the Palestinian side, and maintain territorial contiguity between holy places and the population.
According to the ICJ Advisory Opinion on the Wall, the construction of the Wall violates international law and adversely affects the basic rights and freedoms of the Palestinian population, including and especially their access to places of worship.
Success Story of Bil’in Village
The Israeli occupying authorities confiscated hundreds of dunums in the village of Bil’in to pave the way for the expansion of neighboring settlements and the construction of the Apartheid Wall. Bil’in is surrounded by illegal Israeli settlements, including Modi’in, Kiryat Sefer, and Matityahu.
On 20 April 2004, the Bil’in Village Council received a military order providing for the confiscation of half of the village’s land for the purpose of construction of the annexation and expansion Wall. Within less than a week, the Village Council convened with the families and owners of the land situated in the areas designated for confiscation to discuss steps that can be taken to non-violently resist the military order. Accordingly, the Popular Committee Against the Wall and Settlements was formed composed of 13 members charged with legal follow-up of the case and organizing peaceful resistance activities, including demonstrations, sit-ins and other similar activities.
On 20 February 2005, the Israeli military authorities sent bulldozers to Bil’in and began razingthe village. That day, dozens of villagers assembled to stop the bulldozers. Even though the Israeli authorities had sent military reinforcements to the village, peaceful demonstrations went on and the “Popular Committee Against the Wall and Settlements” developed innovative and creative resistance as a means to attract local and international media. Three years of continued and uninterrupted resistance, Bil’in villagers succeeded in a favorable ruling from the Israeli Supreme Court on 4 September 2007 providing for the re- routing of the Wall in Bil’in and the return of approximately 1,200 dunums to the villagers. However, Bil’in paid a high price to achieve this goal, resulting in the killing of Bil’in residents Mr. Bassem Abu Rahmeh and Jawaher Abu Rahmeh. Moreover, the Israeli military authorities arrested 200 and wounded 1,500 villagers in the process.
Through unity and perseverance, the Bil’in community has set forth an outstanding example of struggle and resistance to Israeli terror and oppression. And Bil’in became a role model of resistance for Palestine and the rest of the world.7
Eleven Years after ICJ Advisory Opinion the Time Has Come to Lift Israel’s Immunity
Since 2004, various countries and private organizations have successfully drawn up policies and taken measures to boycott Israel. The BDS movement (boycott, divestment, and sanctions) has been instrumental in divestment from companies and organizations aiding and abetting Israel’s violations of international law. The EU guidelines and relevant decisions of non-alignment countries are prime examples of ethical and legal commitments to human rights and international law. In addition, international solidarity movements with the Palestinian people have raised global awareness of Israeli violations and tilted international public opinion in support of justice and Palestinian human rights.
By virtue of the peaceful diplomatic, legal and political action of the Palestinian leadership and positive international efforts, Palestine has obtained the legal status of non-member observer state in the UN and was admitted to full membership to UNESCO. Moreover, Palestine acceded to the Rome Statute and can now participate in the Assembly of State Parties. In addition, Palestine has become a member to, and signed various international treaties and conventions, including the Geneva Convention, the Committee for the Elimination of Racial Discrimination (CERD), and many others. Palestine has chosen to confront the Israeli military occupation through international legal instruments will continue to cooperate and join hands with the international community toward the implementation of UN resolutions.
The ineffectiveness and delay in carrying out international law will perpetuate the Israeli occupation and waste opportunities for peace. Eleven years of non-implementation of the ICJ Advisory Opinion have passed, and the opportunity to hold the Israeli military authorities accountable for their colonial enterprise and seizure of Palestinian land has been squandered. The time has come to put the ICJ Advisory Opinion into effect to ensure the credibility of the international community and its respect of international legitimacy and Palestinian rights. Indeed the time has come to lift Israel’s political and legal impunity and hold it accountable for its illegal practices.
E. The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring the illegal situation resulting from the construction of the wall and the associated regime to an end, taking due account of the Advisory Opinion.
- 1. Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory by Israel, ICJ, 9 July 2004, Para. 153.
- 2. John Dugard, "Implementation of General Assembly resolution 60/251 of 15 March 2006 entitled "Human Rights Council": Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 "http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=461e52b12; Richard Falk, “Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, submitted in accordance with Human Rights Council resolution 5/1,” http://unispal.un.org/UNISPAL.NSF/0/69BEC99AF727EAC2852577C3004AAD8A; Human Sciences Research Council of South Africa, Occupation, Colonialism, Apartheid?: A re-assessment of Israel’s practices in the occupied Palestinian territories under international law (Cape Town: HSRC, 2009), at: http://www.hlrn.org/img/documents/HSRC%20study%20-%20Occupation,%20Colon....
- 3. CERD, “Concluding Observations: Israel,” CERD/C/ISR/CO/13, 14 June 2007, paras. 17–19; and CERD/C/ISR/CO/14–16, 9 March 2012, paras. 11, 15, 24–27.
- 4. A letter joined by 92 legal experts and 41 legal networks and organizations concerned with the ongoing breaches of international law in the occupied Palestinian territories violating the Palestinian people’s individual and collective human rights. 2014.
- 5. OCHA
- 6. OCHA Annual Report, December 2013.
- 7. Popular Resistance in Palestine, published by the Negotiations Affairs Department, PLO, 2015.