The International Court of Justice and the Annexation Wall

The International Court of Justice and the Annexation Wall: The Impact of the Advisory Opinion

Presentation by Randa Siniora to a Conference on the Implementation of the Advisory Opinion Convened by the International Commission of Jurists, the International Federation for Human Rights, and the Palestinian Centre for Human Rights, 8 November 2004:

As we all know, on 9 July 2004, the International Court of Justice (ICJ) issued an historic Advisory Opinion stating unequivocally that the construction of the Wall in the Occupied Palestinian Territories (OPT) was unlawful. The Court found that it had jurisdiction and agreed to comply with the referral request, stating that, as with previous referrals to the Court in which it had been held that the request was legally unclear, the referral was "'framed in terms of law and raise[s] problems of international law', and it is indeed a question of a legal character."[1]

While of course we all know that the Opinion is advisory in nature, the remarkable near unanimity of the Court should be considered in a proper legal analysis of this case. As noted recently by one commentator, the Court's justices are considered to be quite conservative, and cannot be described as "judicial activists."[2] The vast support of the Court's justices for the Opinion's findings is a strong statement in favour of its legal nature.

Obligations Under the Advisory Opinion

As everyone present in this room has read the opinion, we will not detail the seven findings of the dispositif. Rather, we shall address them in terms of obligations to which Israel and the international community should be held accountable. Israel has three primary obligations which are outlined in the Advisory Opinion:

• Stop the construction of the Wall in the OPT and dismantle those sections built to date

• Undo all legislation and regulatory acts related to its construction therein

• Provide reparation for all damage cause by its construction in the OPT

In addition, the dispositif details four obligations of the international community resulting from Israel's unlawful construction of the Annexation Wall:

• Not to recognise the illegal situation resulting from the Wall's construction in the OPT

• To provide neither aid nor assistance in maintaining the situation created by its construction

• All High Contracting Parties to the Fourth Geneva Convention must uphold their obligations under Common Article 1 to ensure respect of the Convention

• The UN should consider what further action is required to bring to an end the illegal situation resulting from the Wall's construction in the OPT

These obligations basically provide for Israel's termination of the unlawful act and provision of reparations for all damage caused by the Wall's construction in the OPT, and the official and practical non-recognition of Israel's unlawful acts and the matter of enforcement of its obligations. Al-Haq believes that the points in the ICJ's dispositif were not radical expansions of international law, as has been alleged by some commentators. To the contrary, many of the Court's findings were reiterations of longstanding principles of international law.

Legal Developments in the Aftermath of the Advisory Opinion

There have been a number of legal developments that are related to the issuance of the Advisory Opinion. Approximately one week before the Opinion's release, the Israeli High Court of Justice pre-emptively issued a well-publicised decision on the legality of a 40-kilometre stretch of the Wall north of Jerusalem. In Beit Surik Village Council v. the Government of Israel, the High Court held that for 30 of those 40 kilometres, the route of the Wall was disproportionate.[3] However, this decision was highly problematic, as the High Court did not find that the Wall's construction in the OPT was in itself illegal. Indeed, the Court indicated that the insistence that the Wall be constructed on the Green Line was itself a political determination, stating that,

[p]etitioners, by pointing to the route of the fence, attempt to prove that the construction of the fence is not motivated by security considerations, but by political ones. They argue that if the fence was primarily motivated by security considerations, it would be constructed on the "Green Line," that is to say, on the armistice line between Israel and Jordan after the War of Independence. We cannot accept this argument. The opposite is the case: it is the security perspective - and not the political one - which must examine the route on its security merits alone, without regard for the location of the Green Line….[4]

Beyond Beit Surik, the Advisory Opinion has led to other Israeli legal developments, many of which we are sure this conference's participants will be discussing over the coming two days. Those petitioners who had legal cases before the High Court submitted additional material regarding the Advisory Opinion, asking the state to consider the implications thereof. On 19 August 2004, the Israeli High Court of Justice concurred, ordering the government to submit a statement on the Opinion. The High Court specifically asked that the statement must address the legal implications of the Opinion on Israeli policies regarding the Wall.

Another interesting legal development has been the potential change of Israeli governmental discourse regarding the applicability of the Fourth Geneva Convention. An Israeli Ministry of Justice legal team recommended in August that the government should "thoroughly examine" the possibility of accepting the de jure application of the Convention to the OPT. The concern of Israeli officials regarding possible reactions in the aftermath of the Advisory Opinion was reflected in the comments of Attorney General Menachem Mazuz, who stated that "[t]he ICJ decision creates a legal reality for Israel, which could serve as an excuse and a catalyst for activity against Israel in international forums, to the point of sanctions."[5] We have not yet seen a comparable development in regards to the international human rights legal regime. We may see developments on this level in 2005, when CEDAW considers Israel, which will be the first UN human rights treaty body to consider Israel in the aftermath of the Advisory Opinion.

There has been an interesting shift in the judicial discourse as well. In an October hearing before the High Court of Justice on the Israeli policy of house demolitions, Chief Justice Aharon Barak emphasised the reports of the UN and international human rights organisations on this practice. He stated that such reports are relied upon by the entire world, and warned the Attorney General that such reports must be thoroughly examined. The month previously, in a petition on the use of human shields, Barak stated that in the overwhelming majority cases, Palestinian civilians would not agree to "assist" Israeli forces, and if they did, it would be out of fear. Such comments appear to reflect a concern on the part of Israeli jurists regarding the international perception of Israeli practice and judicial approval thereof.

On all of these issues, however, it remains to be seen whether we will see a change in Israeli actions. On the surface, without accompanying changes in policies, such linguistic developments appear superficial. As you know, Israeli authorities have continued and indeed escalated the Wall's construction since 9 July. Changes in the official Israeli legal positions, while welcome, have limited meaning unless accompanied by a change in Israeli practice through means which can be seen on the ground.

Political Developments in the Aftermath of the Advisory Opinion

Israel's continued construction of the Wall reflects its increasing reliance on unilateral actions as a means of addressing the conflict. The Wall's construction has escalated with no regard for its illegality, much as Israeli authorities have escalated efforts to implement Sharon's Disengagement Plan. These actions are indicative of Israel's abandonment of bilateral political negotiations and its shift to unilateral means.

Soon after the issuance of the Advisory Opinion, the UN General Assembly adopted a resolution which acknowledged the Opinion; demanded that Israel comply with its legal obligations as mentioned therein; and called on the member states of the UN to do so as well. It also called on the UN Secretary-General to establish a register of damage caused to all natural or legal persons concerned. The resolution passed with 150 in favour, six against, ten abstentions, and 25 non-voting. There have since been references to the establishment of a body which will establish the register of damages, although little of these discussions have been made public.

The matter was also welcomed by the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People. The Committee stated that the Opinion "had the potential to contribute to restoring political dialogue and negotiations between the parties."[6] The Committee further called on Israel to comply fully with the ruling and to fulfil its obligations under international law, including the right of the Palestinian people to self-determination.

Israeli and American leaders were quick to disregard the Opinion, citing its non-binding nature. However, it is interesting to note that although various international leaders may have expressed their reservations regarding the submittal of the matter to the ICJ, many of them have expressed their support for the position that the construction of the Wall in the OPT is unlawful. On the day that the Advisory Opinion was issued, UN Secretary-General Kofi Annan stated "I think the decision of the court is clear," adding that "[w]hilst we all accept the government of Israel has a responsibility, and indeed the duty to protect its citizens, any action it takes has to be in conformity with international law and has to respect the interest of the Palestinians."[7] Several states have called on the UN to take action to obtain Israeli compliance with the Opinion, and a number called on Israel to respect, adhere to, and implement it. As succinctly summarised by the New Zealand authorities, "[t]he Wall is a barrier to the concept of a two-state solution…."[8]

Beyond immediate reactions, the issue of the Wall was a key topic at the 2004 UN International Conference of Civil Society in Support of the Palestinian People. The Plan for Action developed from this conference highlighted the need to "educate people in all of our countries, and to pressure Israel and our own Governments to move towards strict enforcement of the Advisory Opinion of the ICJ and the resolutions of the General Assembly that call for self-determination of the Palestinian people, stopping and reversing Israeli settlements and dismantling the Wall." The issue of the Wall was chosen as a key topic to be highlighted throughout the year during key dates for global mobilisation.

A final political development which should be emphasised is the increased discussion of the matter of boycotts, sanctions and other measures. In its summit in August 2004, the Non-Aligned Movement expressed their support for a boycott of goods from Israeli settlements and for the possible imposition of sanctions on companies which are assisting in the construction of the Wall. Similar calls have been made by key components of civil society, including faith-based organisations. One example of this is the July 2004 decision by the Presbyterian Church (USA) to adopt a resolution calling for the selective divestment of church funds from those companies whose business in Israel is found to be directly or indirectly causing harm or suffering to innocent people. Recent discussions within the Anglican Church indicate an interest in adopting a similar position, and the call for such actions was also made at the European Social Forum. The specific inclusion of obligations of the international community in the Advisory Opinion has given strength to a matter which was previously marginalised.

The Advisory Opinion's Impact on Debate in the OPT and the Response of Palestinian Civil Society

One of the most significant aspects of the Advisory Opinion's impact on debate in the OPT is its use as a reference point. It is unquestionable that the Opinion gives an added legal weight to the discourse used in the Palestinian struggle. The Opinion has been utilised by civil society organisations, in particular human rights NGOs, as a tool for campaigning activities.

In general, Palestinian civil society welcomed the Opinion both as a strong legal voice in support of ongoing efforts to end violations of international law in the OPT and as an issue around which to organise advocacy activities. Increasing numbers of civil society organisations are getting involved in existing advocacy activities such as the Stop the Wall campaign. Founded primarily by environmental organisations, the campaign has been re-shaped into a national one over the last several months, a significant development which will serve to strengthen these efforts.

There has been an increased interest in the legal measures utilised in the South Africa struggle. Palestinian civil society organisations, like those elsewhere, view the Opinion as an important step in a process comparable to that which led to change in the apartheid regime. It is recognised, of course, that pressure from the international community was an important contributing factor in the successful change of this regime.

In particular, Palestinian civil society organisations are working with international partner organisations to bring about such pressure. To that end, the Palestinian Non-Governmental Organisation Network (PNGO) is developing an advocacy strategy, at present aimed at Europe, which uses the Advisory Opinion as its reference point. It is worth noting that there has been a corresponding effort on the part of some international partner organisations, such as the Euro-Mediterranean Human Rights Network and the Aprodev group, to coordinate advocacy activities on the Wall, the European Union (EU) Association Agreement, and other related issues before the EU and its member states.

The Advisory Opinion also serves as a means to unify the work of human rights organisations in particular and civil society more broadly. Human rights NGOs have historically been heavily reliant on international legal discourse, such as that utilised in previous ICJ opinions, in their daily work. This was not, however, shared by the broader civil society structure, which was more heavily reliant on political discourse. The Opinion serves to develop a law-based strategy that will give the strength of international law to existing political campaigning initiatives.

In conclusion, we believe that the Advisory Opinion gives the Palestinian people an extraordinary opportunity to bring an end to Israel's ongoing illegal activities in the OPT. While the focus of the Opinion was of course the construction of the Annexation Wall in the OPT, the provisions of the Opinion include several findings - such as Israel's status as an Occupying Power, the applicability of the international human rights and humanitarian legal regimes in the OPT, and the illegality of settlements - which can be used in the work of Palestinian civil society to challenge Israel's illegal actions in the OPT. As noted in the ICJ's Voting Procedures opinion,

[a state] … which consistently sets itself above the solemnly and repeatedly expressed judgment of the [UN], in particular in proportion as that judgment approximates to unanimity, may find that it has overstepped the imperceptible line between impropriety and illegality, between discretion and arbitrariness, between the exercise of the legal right to disregard the recommendation and the abuse of that right, and that it has exposed itself to the consequences legitimately following as a legal sanction.[10]

Endnotes:

[1] ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, para. 37.

[2] S. Akram and J. Quigley, The International Court of Justice Advisory Opinion on the Legality of Israel's Wall in the Occupied Palestinian Territories: Legal Analysis and Political Consequences (Washington, DC, The Palestine Center, September 2004), p. 15.

[3] HCJ 2056/04, Beit Surik Village Council v. the Government of Israel, et al., at para. 60. See also paras. 67, 71, 76, 80, and 81.

[4] Supra note 3 at para. 30.

[5] BBC, "Israel Court Orders Barrier Reply," 20 August 2004.

[6] UN Press Release, "Bureau of Palestinians Rights Committee Welcomes Advisory Opinion by International Court of Justice," GA/PAL/962, 14 July 2004.

[7] "Annan: Israel Must Accept ICJ Ruling," Al-Jazeera, 11 July 2004, http://english.aljazeera.net/NR/exeres%20/1C53CA1B-AB40-45E7-86FD-3F303951496D.htm, accessed 20 July 2004.

[8] "NZ Welcomes Court Ruling on the Wall," 12 July 2004, http://www.beehive.govt.nz/PrintDocument.cfm?DocumentID= 20299, accessed 6 September 2004.

[9] International Coordinating Network on Palestine, "2004-2005 Plan for Action to Support Palestinian Rights Through International Law and the United Nations," 14 September 2004.

[10] ICJ, Voting Procedures on Questions relating to Reports and Petitions concerning the Territory of South West Africa, 7 June 1955, ICJ Report, para. 120.