Whilst journalists have rightly picked up on this point, many have overlooked paragraph 159, which sets out in clear and unequivocal terms the legal obligations of the international community. These include the duties of non-recognition, non-assistance, preventing the wall from impeding the Palestinians’ right to self-determination, and ensuring Israel’s compliance with international humanitarian law. Whilst sceptics have pointed out that an advisory opinion is not binding per se, the legal obligations stipulated in that paragraph are.
The EU, as an international organisation made up of its constituent states, has a responsibility, in the same way as states do, to abide by the ICJ’s opinion. The EU is set up by treaties which are governed by international law. The European Court of Justice has held that customary international law is binding upon the EU. At least two of the obligations set out in the ICJ’s opinion are of a customary character. All 25 members of the EU voted in favour of the UN General Assembly resolution which demanded that Israel comply with its legal obligations as identified in the advisory opinion.
The wall - which consists of a series of concrete blocks, fences, ditches, patrol roads and watchtowers - is designed to buttress existing settlements perched on hilltops surrounding occupied East Jerusalem, and to support those settlements strategically built over Palestinian water reserves. Its construction is incompatible with the creation of an independent, sovereign, viable Palestinian state as envisaged in the Road Map and the European Council’s Seville Declaration. The ICJ held that Israel must cease building the wall, dismantle what has been built in occupied territory, repeal all legislation enabling its construction, and compensate Palestinians. Israel is still building the wall in clear violation of international law.
The EU cannot bring to an end Israel’s violations or ensure its compliance with humanitarian law simply by issuing statements, declarations and démarches. In support of the peace process, the EU could bring pressure to bear by withdrawing preferential trade from Israel until it abides by its obligations under international law. Under the EU-Israel association agreement, access to the common market is conditional upon “respect for human rights”, which forms an “essential element” of the agreement. Israel does not satisfy the human rights requirement in the Occupied Palestinian Territories. This was confirmed in three separate UN reports by Catherine Bertini, John Dugard and Jean Ziegler, who found that Israel was in breach of its international humanitarian and human rights obligations.
In light of the advisory opinion, the very legality of this agreement is questionable. This is especially so since the ICJ, from which there is no appeal, held that the construction of the wall “constitutes breaches by Israel of several of its obligations under the applicable international humanitarian and human rights instruments.” It is difficult to see why Israeli products should be exempt from EU customs and excise duty when it is in material breach of this agreement. Israel should not be benefiting from the unlawful policies and practices it adopts towards the Occupied Palestinian Territories. At the very minimum, the EU should censure Israel by withdrawing its privileged trading status.
In May, during “Operation Rainbow” the UN Special Rapporteur, John Dugard, called for an arms embargo to be imposed against Israel modelled along the lines of the 1977 embargo imposed on apartheid South Africa. His call went unheeded. Dugard, a South African, does not believe there is a possibility of sanctions being imposed against Israel since it can always rely on the United States to veto such an attempt. It is quite clear that US support for Israel has emasculated the Security Council and has rendered it powerless to bring peace to the Middle East.
The EU must step into the breach. If need be it can act unilaterally. On 22 April 1980, during the hostage crisis in the American Embassy in Tehran, the EU imposed sanctions against Iran for violating the laws of diplomatic immunity. The EU acted after the Soviet Union vetoed a resolution in the UN Security Council that sought to impose sanctions on Iran. It justified its act by saying “the situation created a concern for the whole international community.” If the EU could then act without express authorisation from the Security Council, it could surely do so today. The EU need not be concerned about US vetoes. The US may have a seat in the Security Council, but it does not have a seat in the European Council.
As Vaughan Lowe, Professor of International Law at Oxford University, noted before the ICJ: “The wall is not simply a present hardship, but marks the boundary of the miserable patch of land into which Israel intends to force the Palestinian people, in a grotesque caricature of the two-State vision that is as far from justice as it is from legality.” The Court agreed with this sentiment by a 14 to 1 majority, as did the UN General Assembly by a 150 to 6 majority. The EU, however, is trying to develop a stronger relationship with Israel through the European Neighbourhood Policy because it believes this will “enhance its ability to influence” that country. The EU has not had much success so far. It should think again.
Victor Kattan is a Director of Arab Media Watch. This article is based on a presentation he gave at Leiden University organised by the Europa Institute. The article will appear in Volume 13 of the Palestine Yearbook of International Law (2002 - 2004). firstname.lastname@example.org