Israel’s Wall and the International Court of Justice
Israel’s Wall and the International Court of Justice
July 01, 2004
“The Court has reached the conclusion that the construction of the wall by Israel in the Occupied Palestinian Territory is contrary to international law…”1
1. WHAT DID THE COURT RULE?
On the Wall: The Court ruled that “the construction of the wall, and its associated regime, are contrary to international law” (para. 142). In reaching this conclusion, the Court determined that: (i) in order to build the wall, Israel destroyed or confiscated Palestinian property in violation of international law (para. 132); (ii) Israel’s severe restrictions on Palestinian movement violate international human rights and humanitarian law (para. 134); (iii) the wall impedes the right of Palestinians to work, health, education and to an adequate standard of living (para. 134) and (iv) the wall “severely impedes the exercise by the Palestinian people of its right to self-determination” (para. 122).
On Israel’s Obligations: The Court ruled that Israel must “cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem” (para. 151). The Court also ruled that Israel must dismantle the wall and pay compensation to the Palestinian population. It also ruled that Israel must “return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory” (para. 153).
On the Obligations of the International Community: The Court ruled 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. . . . In addition, all the State parties to the Geneva Convention. . . are under an obligation. . . to ensure compliance by Israel with international humanitarian law as embodied in that Convention” (para. 159).
On Military Necessity: The Court noted that the argument of “military necessity” can only be invoked under “strictly defined conditions” and that the “State concerned is not the sole judge of whether those conditions have been met.” One such condition is that the act at issue “be the only way for the State to safeguard an essential interest against a grave and imminent peril” (para 140)(emphasis added). The Court concluded that “in light of the material before it, the Court is not convinced the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction” (para. 140)(emphasis added).
On Occupied Territory: The Court unanimously ruled that the West Bank, including East Jerusalem, is occupied territory: “The territories situated between the Green Line and the former eastern boundary under the Mandate of Palestine were occupied by Israel in 1967…All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of an occupying Power” (para. 78). Israel is therefore obliged to uphold the Fourth Geneva Convention.
On Whether the Wall is Temporary: “Whilst the court notes the assurances given by Israel that the construction of the wall does not amount to annexation and the wall is of a temporary nature, it nevertheless cannot remain indifferent to certain fears expressed to it that the wall and its associated regime create a 'fait accompli’ on the ground that well could become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation” (para. 121).
On Israeli Colonies (Settlements): Citing UN Security Council resolutions and the Fourth Geneva Convention, the Court confirms that “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law” (para. 120). Even the sole judge who felt the Court should have declined to render the opinion also agreed that the Israeli colonies are illegal.
On Self-Defense: The Court noted that “self-defense” can be invoked in the case of an armed attack by one State against another State. However, the Court noted that Israel exercises control in the Occupied Palestinian Territory and that “the threat it regards as justifying the construction of the wall originates within and not outside, that territory” (para. 139). Consequently, the Court ruled that the right of “self-defense” as provided in the United Nations Charter is irrelevant to the case.
2. WAS THE COURT’S VOTE UNANIMOUS?
Of the panel of fifteen judges, only one judge felt the Court did not have enough factual evidence upon which to base its conclusion.. However, he did not disagree with many of the Court’s conclusions. Even in his separate declaration, Judge Buergenthal of the United States agreed with the majority of the Court that: (i) Israel must comply with international humanitarian law, including the Fourth Geneva Convention and (ii) Israeli colonies are illegal.
3. IF THE DECISION WAS ABOUT THE WALL, WHY DID THE COURT RULE ON THE COLONIES?
Given that the wall has been routed around existing Israeli colonies and their planned expansion area, ascertaining the legality of the colonies becomes central to the question of the wall: if Israeli colonies are illegal then, by extension, any structure that is put in place to consolidate Israel’s hold on these colonies is also illegal. Therefore, the Court assessed the legality of the colonies and confirmed long-standing international law by declaring them illegal. Colonies are considered war crimes by Protocol Additional I to the Geneva Conventions2 and the statute of the international criminal court.3
4. WHAT DID THE COURT SAY ABOUT BUILDING THE WALL ON THE GREEN LINE (ISRAEL’S 1967 PRE-OCCUPATION BORDER)?
The Court was not asked to rule on the legal consequences of a wall built on the Green Line but rather only on the wall built in Occupied Palestinian Territory. Accordingly, the Court confined its ruling to only those parts of the Wall that were built in Occupied Palestinian Territory and declared “the construction of the wall by Israel in the Occupied Palestinian Territory is contrary to international law” (para. 162).
5. WHY IS THE COURT’S RULING SIGNIFICANT?
The Court’s ruling represents the first time the world’s highest judicial body has pronounced on the legality of Israel’s actions with respect to the Occupied Palestinian Territory, including East Jerusalem, and its population. The independent Court ruled decisively in favor of the Palestinians and reaffirmed that this conflict is between Israel as an Occupying Power and the Palestinians as an occupied people. As such, Israel is bound by applicable international humanitarian law, including the Fourth Geneva Convention.
In addition, the Court’s ruling is significant because it specifically recognizes the role of the international community by calling upon countries around the world to “ensure compliance by Israel with international humanitarian law” (para. 146).
6. BUT ISN’T THIS A NON-BINDING RULING?
The legal conclusions reached by the Court as to the Israel’s obligations are based on binding laws such as UN Security Council resolutions and the Fourth Geneva Convention. Irrespective of this decision, States are obliged to ensure that international law, including the Fourth Geneva Convention is followed.
7. WHAT IS THE DIFFERENCE BETWEEN THIS DECISION AND THE ISRAELI HIGH COURT RULING?
Unlike the International Court of Justice, the Israeli High Court (which has no jurisdiction over the Occupied Palestinian Territory) applied its own domestic law, which neither conforms to international legal principles nor is applicable to the Occupied Palestinian Territory. The decision effectively represents a defendant acting as its own judge.
For example, despite the fact that the Israeli High Court found that Israel is in “belligerent occupation” of the West Bank, it failed to apply the international laws applicable to such an occupation and instead created its own Israeli “test” for determining whether the actions of the military are permitted. Thus, the Court used the façade of respecting international law to camouflage Israel’s violations of international law.
Nevertheless, the High Court’s decision is notable for its ruling that Israel has exaggerated the claims of “military necessity” and also
orders Israel to pay compensation to Palestinian landowners.
8. HOW SIGNIFICANT IS IT THAT THE U.S. HAS ALREADY STATED THAT IT WILL NOT GIVE THE RULING ANY WEIGHT?
The Court’s decision places obligations not only on Israel but the entire international community. Any US refusal to abide by or respect this decision will only serve to undermine US credibility in the region with regard to its own commitment to democracy and the rule of law. The US position should not, however, debilitate the rest of the international community.
1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice, 9 General List No. 131. para. 162 (July 2004).
2. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Adopted on 8 June 1977 entry into force 7 December 1979, Articles 85(4)(a) and 85(5).