ICJ Commemorative Speech: ICJ Lead Attorney Vaughan Lowe
ICJ Commemorative Speech: ICJ Lead Attorney Vaughan Lowe
It was an honour to have been entrusted with the presentation of a part of Palestine’s case in the International Court of Justice; and it is an honour to have been invited to say a few words on the case at this gathering. Thank you.
Let me explain why the case was important, and what it can and cannot achieve.
The case was important, in my view, for one overriding reason. It established that the rights and the duties of Palestine, and of Palestinians, are regulated by law and are not simply a matter for political negotiation.
Palestine and Palestinians do not simply have claims and interests over which they must negotiate with Israel. They have legal rights. They do not have to bargain for those rights. They do not have to make concessions in return for the recognition of those rights. They have those rights now and they are entitled to have those rights observed.
The International Court of Justice in The Hague, which is the principal judicial organ of the United Nations and generally regarded as the highest authority in international law, was requested by the UN General Assembly to give an Advisory Opinion on the Wall. The passage, on 8 December 2003 of the General Assembly resolution requesting the Opinion, was a very considerable diplomatic success for Palestine.
The Court engaged in a careful examination of the situation created by Israel’s security wall and the associated controls on movement within Palestinian territory.
The International Court did so after examining hundreds of pages of reports from UN bodies and others. The Court’s reliance on those reports demonstrates the great value of the work of the UN special rapporteurs, and of human rights organizations in Palestine, Israel and elsewhere, who patiently verify and document the effects of the Israeli occupation. It also underlines the value of the work of those within Palestine who have assisted in the preparation of those reports.
The International Court invited submissions from Palestine, Israel and from all other States. Palestine and Israel each had the same opportunity to make their positions known; and both of them made submissions to the Court.
The Palestinian submission was put together in a very short time by a Palestinian team based in Ramallah and assisted by outside legal counsel. It explains both the factual consequences and the legal implications of the building of the Wall.
Israel, along with other States, said little about the substance of the matter and urged the Court to refuse to give a ruling. One of the main arguments was that the situation was too political for the Court to get involved in.
One of the most significant aspects of the Court’s judgment is that it rejected that argument. The Court took the view that if the UN General Assembly considered it necessary to have legal questions authoritatively answered in order for the General Assembly to discharge its responsibilities concerning Palestine under the UN Charter, the Court should not second-guess the Assembly but should answer the question put to it.
The Court, as it has done in similar cases, said that whatever the political aspects of a situation it can and must assess the legality of the conduct of States with regard to obligations imposed upon them by international law when it is asked to do so. In doing so, it clearly affirmed that Palestine has legal rights, and legal duties, not because it has bargained for them with Israel or with anyone else, but because the Law directly imposes those right and duties on all States.
The Court set out is conclusions on the legal position very clearly.
It affirmed that Palestine is a territory under foreign military occupation (paragraph 101); and that 'Palestine’ includes Occupied East Jerusalem and all of the territories east of the Green Line (paragraphs 101, 120).
It affirmed that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law (paragraph 120).
It held that the Wall and its associated regime create a 'fait accompli’ that could become permanent, which would be tantamount to de facto annexation (paragraph 121), and that the route chosen for the Wall gives expression on the ground to the illegal measures taken by Israel with regard to the settlements, and severely impedes Palestinian self-determination (paragraph 122). It held that Israel, in its occupation of Palestinian territory, is bound to observe Humanitarian Law, the Laws of War and Human Rights law (paragraphs 105- 114). Those laws give Israel the rights that are necessary to defend itself against terrorist threats and to safeguard its security, and Israel must act within them. Israel has the right, and the duty, to respond to acts of violence in order to protect its civilians, but the measures taken must remain within international law (paragraph 141).
The Court held that Israel has violated obligations under humanitarian law, including the prohibition on deportations and transfers of civilian populations (paragraph 120) and on the destruction of civilian property (paragraph 132), and has unlawfully impeded liberty of movement and rights to work, to health, to education, and to an adequate standard of living (paragraph 134).
It concluded that the construction of the Wall, and its associated regime, are contrary to international law (paragraph 142); and that Israel is under a legal obligation:-
a. to respect Palestine’s right to self-determination (paragraph 149),
b. to cease forthwith construction of the Wall, including in and around East Jerusalem (paragraph 151),
c. to dismantle the Wall forthwith (paragraph 151);
d. to repeal forthwith all legislative and regulatory acts adopted with a view to the construction of the Wall and to the establishment of its associated regime (paragraph 151); and
e. to make reparation for the damage arising from its unlawful conduct (paragraphs 152, 153)
The Court was not one-sided. It acknowledged that Israel had the right, and the duty, to protect its citizens against unlawful attacks. It said that both Israel and Palestine are under an obligation scrupulously to observe the rules of international humanitarian law, one of the paramount purposes of which is to protect civilian life. And it found that illegal actions and unilateral decisions have been taken on both sides (paragraph 162).
The Court did not address only the rights and duties of Palestine and Israel. It said that all States are under an obligation not to recognize the illegal situation resulting from the construction of the Wall in Occupied Palestinian Territory, including in and around East Jerusalem. They must not render aid or assistance in maintaining that situation, and must see to it that any impediment to the exercise of the Palestinian people’s right of self-determination is brought to an end (paragraph 159). That provision in the Court’s Opinion is already having effect. It is leading lending bodies, such as international banks, to refuse to lend Israel money that would be used to support or extend the Wall. States should also be considering whether their foreign aid to Israel conforms with this obligation.
Some have said that the Court’s ruling was 'only’ an Advisory Opinion. That misstates the position. The effect of Advisory Opinions was clearly described by one of the Judges in as earlier case, where he said:
“…when the Court gives an advisory opinion on a question of law it states the law. The absence of binding force does not transform the judicial operation into a legal consultation, which may be made use of or not according to choice. The advisory opinion determines the law applicable to the question put; it is possible for the body which sought the opinion not to follow it in its action, but that body is aware that no position adopted contrary to the Court’s pronouncement will have any effectiveness whatsoever in the legal sphere.” [Gros, Declaration in Western Sahara, ICJ Reports 1975, p. 6, at p. 73.]
For me, then, the historic significance of the Advisory Opinion is that it put beyond any question the fact that Palestine has legal rights, which it does not have to bargain for. The implementation of those rights, like the fulfilment of Palestine’s duties under international law, and the implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973) must form the basis of any resolution of the situation.