Q. Did the International Criminal Court of Justice Find that the Apartheid Wall is Illegal in 2004?

A. Yes. In a 2004 Advisory Opinion the International Criminal Court of Justice Found the that Apartheid Wall, in as Much as it Deviates from Israel’s Internationally Recognized Border, is Illegal.

The following is excerpted from pages 11-15 of the ICJ advisory opinion summary conclusion from 2004:

…Whilst taking note of the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature, the Court nevertheless 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.

 

The Court considers moreover that the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the Security Council. There is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing to the departure of Palestinian populations from certain areas. That construction, along with measures taken previously, thus severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right.

 

Relevant international humanitarian law and human rights instruments (paras. 123-137)

 

The construction of the wall also raises a number of issues in relation to the relevant provisions of international humanitarian law and of human rights instruments.

 

– 11 –

 

The Court first enumerates and quotes a number of such provisions applicable in the Occupied Palestinian Territory, including articles of the 1907 Hague Regulations, the Fourth Geneva Convention, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the Rights of the Child. In this connection it also refers to obligations relating to guarantees of access to the Christian, Jewish and Islamic Holy Places.

 

From the information submitted to the Court, particularly the report of the Secretary-General, it appears that the construction of the wall has led to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention.

 

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). There have also been serious repercussions for agricultural production, and increasing difficulties for the population concerned regarding access to health services, educational establishments and primary sources of water.

 

In the view of the Court, the construction of the wall would also deprive a significant number of Palestinians of the “freedom to choose [their] residence”. In addition, 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 mentioned above, is tending to alter the demographic composition of the Occupied Palestinian Territory.

 

In sum, 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 the demographic changes mentioned, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the pertinent Security Council resolutions cited earlier.

 

The Court then examines certain provisions of the applicable international humanitarian law enabling account to be taken in certain circumstances of military exigencies, which may in its view be invoked in occupied territories even after the general close of the military operations that led to their occupation; it points out, however, that only Article 53 of the Fourth Geneva Convention contains a relevant provision of this kind, and finds that, on the material before it, the Court is not convinced that the destructions carried out contrary to the prohibition in that Article were “rendered absolutely necessary by military operations” so as to fall within the exception.

 

Similarly, the Court examines provisions in some human rights conventions permitting derogation from, or qualifying, the rights guaranteed by those conventions, but finds, on the basis of the information available to it, that the conditions laid down by such provisions are not met in the present instance.

 

In sum, the Court finds that, from the material available to it, it is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public

 

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order. The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments.

 

Self-defence and state of necessity (paras. 138-141)

 

The Court recalls that Annex I to the report of the Secretary-General states, however, that, according to Israel: “the construction of the Barrier is consistent with Article 51 of the Charter of the United Nations, its inherent right to self-defence and Security Council resolutions 1368 (2001) and 1373 (2001)”.

 

Article 51 of the Charter, the Court notes, recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State. The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.

 

The Court considers further whether Israel could rely on a state of necessity which would preclude the wrongfulness of the construction of the wall. In this regard, citing its decision in the case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), it observes that the state of necessity is a ground recognized by customary international law that “can only be invoked under certain strictly defined conditions which must be cumulatively satisfied” (I.C.J. Reports 1997, p. 40, para. 51), one of those conditions being that the act at issue be the only way for the State to guard an essential interest against a grave and imminent peril. In the light of the material before it, the Court is not convinced that 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. While Israel has the right, and indeed the duty to respond to the numerous and deadly acts of violence directed against its civilian population, in order to protect the life of its citizens, the measures taken are bound to remain in conformity with applicable international law. Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall. The Court accordingly finds that the construction of the wall, and its associated régime, are contrary to international law.

 

Legal consequences of the violations (paras. 143-160)

 

The Court then examines the consequences of the violations by Israel of its international obligations. After recalling the contentions in that respect of various participants in the proceedings, the Court observes that the responsibility of Israel is engaged under international law.

 

It then proceeds to examine the legal consequences by distinguishing between, on the one hand, those arising for Israel and, on the other, those arising for other States and, where appropriate, for the United Nations.

 

Legal consequences of those violations for Israel (paras. 149-154)

 

The Court notes that Israel is first obliged to comply with the international obligations it has breached by the construction of the wall in the Occupied Palestinian Territory. Consequently, Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law. Furthermore, it must ensure freedom of access to the Holy Places that came under its control following the 1967 War.

 

– 13 –

 

The Court observes that Israel also has an obligation to put an end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory. Israel accordingly has the obligation to cease forthwith the works of construction of the wall being built by it in the Occupied Palestinian Territory, including in and around East Jerusalem.

 

In the view of the Court, cessation of Israel’s violations of its international obligations entails in practice the dismantling forthwith of those parts of that structure situated within the Occupied Palestinian Territory, including in and around East Jerusalem. All legislative and regulatory acts adopted with a view to its construction, and to the establishment of its associated régime, must forthwith be repealed or rendered ineffective, except where of continuing relevance to Israel’s obligation of reparation.

 

The Court finds further that Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned. The Court recalls the established jurisprudence that “The essential principle contained in the actual notion of an illegal act . . . is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”

 

Israel is accordingly under an obligation to 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. In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered. The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction.

 

Legal consequences for other States (paras. 154-159)

 

The Court points out that the obligations violated by Israel include certain obligations erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are by their very nature “the concern of all States” and, “In view of the importance of the rights involved, all States can be held to have a legal interest in their protection.” (Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgement, I.C.J. Reports 1970, p. 32, para. 33.) The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law. As regards self-determination, the Court recalls its findings in the East Timor case, and General Assembly resolution 2625 (XXV). It recalls that a great many rules of humanitarian law “constitute intransgressible principles of international customary law” (I.C.J. Reports 1996 (I), p. 257, para. 79), and observes that they incorporate obligations which are essentially of an erga omnes character. It also notes the obligation of States parties to the Fourth Geneva Convention to “ensure respect” for its provisions.

 

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.

 

The United Nations (para. 160)

 

– 14 –

 

Finally, the Court is of the view that 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 considers that its conclusion that the construction of the wall by Israel in the Occupied Palestinian Territory is contrary to international law must be placed in a more general context. Since 1947, the year when General Assembly resolution 181 (II) was adopted and the Mandate for Palestine was terminated, there has been a succession of armed conflicts, acts of indiscriminate violence and repressive measures on the former mandated territory. The Court would emphasize 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. Illegal actions and unilateral decisions have been taken on all sides, whereas, in the Court’s view, this tragic situation can be brought to an end only through implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973). The “Roadmap” approved by Security Council resolution 1515 (2003) represents the most recent of efforts to initiate negotiations to this end. The Court considers that it has a duty to draw the attention of the General Assembly, to which the present Opinion is addressed, to the need for these efforts to be encouraged with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and the establishment of a Palestinian State, existing side by side with Israel and its other neighbours, with peace and security for all in the region…

[1] Balfour, Arthur James. The Balfour Declaration. The Avalon Project. Lillian Goldman Law Library, Yale Law School, 2 November 1917. Web. 17 June 2016. ‹http://avalon.law.yale.edu/20th_century/balfour.asp›

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Michael Hess

Michael Hess

I started writing and editing BBSNews in 1990. Before the 'web, back in the Bulletin Board System (BBS) days. My pursuit of factual and reality based information informs my worldview. The ever evolving BBSNews contains New Mexico news, national and international news, politics, space, foreign policy and in particular; news and facts about the Israeli-Palestinian conflict. See our About Us page for more details.