ICJ must continue with advisory opinion on wall

The International Court of Justice (Photo: UN)

Al-Haq is deeply disturbed by reports that the European Union, the United States, Israel and other governments have filed objections to the International Court of Justice (ICJ), stating that they believe that the ICJ should not issue an Advisory Opinion on the legal consequences of Israel’s construction of the Annexation Wall in the Occupied Palestinian Territories (OPT). The UN General Assembly requested the ICJ to urgently render this Advisory Opinion in December 2003, and the Court is scheduled to begin hearings on 23 February 2004.

Critics of the ICJ hearings have suggested that such a hearing would be political rather than legal in nature, a claim which Al-Haq vehemently disputes. We fully agree with the viewpoint that a just and durable solution to the Israeli-Palestinian conflict lies in international law, not in politics. As such, we welcome the ICJ’s intervention in this matter, as we believe that it will provide an objective legal, not political, assessment of the international legal implications of the Wall’s construction on the OPT. We would emphasise that the means by which this issue has been raised before the ICJ - through a referral of the UN General Assembly as permitted under Article 65 of the Statute of the ICJ - is fully compliant with international law. Further, we would suggest that Israel’s objection to such a hearing appears to be in violation of its obligation undertaken at the time of its acceptance as a UN Member State to unreservedly accept the obligations of the UN Charter and to honour them from the day it becomes a Member State.

Al-Haq believes that the construction of the Annexation Wall (the term used by the UN Special Rapporteur on the Situation of Human Rights in the OPT) as it has been planned and undertaken to date, including its construction on the OPT, the annexation of Palestinian land, and the violation of Palestinian territorial sovereignty, is in breach of Israel’s obligations under international human rights and humanitarian law. Many of these provisions are upheld in customary law as well as in international treaties to which Israel is a party (inter alia, the Hague Regulations; the Fourth Geneva Convention,; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social and Cultural Rights). As noted by the UN Special Rapporteur on the OPT, the Wall is,

“an act of unlawful annexation in the language of Security Council resolutions 478 (1980) and 497 (1981) which declare that Israel’s actions aimed at the annexation of East Jerusalem and the Golan Heights are “null and void” and should not be recognized by States.”

The construction of the Annexation Wall is not only unlawful, it has a devastating effect on the Palestinian people, who have lost their land and extensive amounts of their natural resources such as aquifers and hundreds of thousands of olive trees, both of which are vital to the largely agricultural Palestinian economy. Through its construction, Israel has unilaterally imposed an invasive “solution” through newly-created facts on the ground - facts which will prevent the emergence of a viable independent Palestinian state. As the UN Special Rapporteur on the OPT observed,

“[t]he amputation of Palestinian territory by the Wall seriously interferes with the right of self-determination of the Palestinian people as it substantially reduces the size of the self-determination unit (already small) within which that right is to be exercised.”

We urge the International Court of Justice to continue the hearings on the Annexation Wall. Now is the opportunity for them to intervene and ensure that the issue is reviewed on the basis of international law, not politics.