ICJ/The Wall: Replacing Politics With Law

The International Court of Justice in The Hague.


In June 2002, Israeli authorities began constructing what the UN Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories (OPT) has termed “the Annexation Wall.” The structure itself, presently planned to stretch to at least 680 kilometres in length, varies in different areas. In some areas, it consists of layers of razor wire, military patrol roads, sand paths to trace footprints, trenches, surveillance cameras and a three-metre high electric fence. It is 60 - 100 metres wide. An additional buffer zone exists 30 - 100 metres beside the Wall. Palestinians are prohibited from entering this zone, which consists of electric fences, trenches, cameras, sensors, and is patrolled by the Israeli military. There are also reported plans for “depth barriers,” 150 metres in length, to be erected a few kilometres east of the Wall itself. In urban areas such as Qalqiliya and East Jerusalem, the Wall is constructed of eight-metre high concrete slabs with concrete watchtowers.

Israel has justified the construction of the Wall by claiming it is necessary to ensure the security of Israelis within the Green Line (the 1949 armistice line). The route of the Wall, however, demonstrates the fallacy of this claim. The primary purpose of the Wall is to annex large amounts of the West Bank, ensuring that most of the illegal settlements will be on the Israeli side. The Wall is also planned to extend into the Jordan Valley, and will join with the Western section to form two distinct enclosed Palestinian areas to the north and south of Jerusalem. Jericho will be encircled, while East Jerusalem will be isolated from the rest of the West Bank. The route of the Wall is difficult to predict, as Israelis have been slow to release plans and those which are released are then subject to change at the behest of Israeli politicians and settlers. However, the information presently available suggests that at least 45% of the West Bank will be de facto annexed by the wall. This mass annexation, at times disregarded at the international level in the midst of ongoing controversy as to the most accurate descriptor (“fence,” “barrier,” etc.) for the structure, is unquestionably the single most devastating impact of the Wall on the Palestinian people.

The Impact of the Annexation Wall

Approximately 14.5% of the West Bank (excluding East Jerusalem) will be isolated between the Wall and the Green Line and de facto annexed to Israel. The figure for the amount of annexed land between the Wall and the Jordan River is likely to be at least double. The UN Office for the Coordination of Humanitarian Affairs (OCHA) estimates that over 500,000 Palestinians will be trapped between the Wall and the Green Line, thus isolating them from their own communities. Another 250,000 Palestinians in the vicinity of the “Jerusalem Envelope” will find themselves trapped between the Green Line and the Wall in a series of disconnected and isolated enclaves. The annexed land includes an extensive amount of natural resources: the Palestinian Hydrology Group estimates that nearly 18% of the Palestinian share of the Western Groundwater Basin alone will be lost.

The impact of the Wall on the movement of Palestinians is severe. In some areas, Palestinians will have to apply for a permit from the Israeli military if they wish to travel to schools, medical clinics, religious sites, markets, employment or neighbouring communities which are across the Wall but within the OPT. The village of Jayyous, near Qalqiliya, presents a striking example. Although it is six kilometres from the Green Line, 72% of the village’s land and seven of its wells have been requisitioned by Israeli authorities in the construction of the Wall directly adjacent to the village. East Jerusalem has also been particularly affected, as thousands of Palestinian residents holding Israeli IDs will be cut off from the city. Such movement restrictions, when combined with the annexation of natural resources, has had a devastating effect on the already fragile Palestinian economy.

Additionally, construction of the Wall is resulting in the destruction of large amounts of property. In the village of Nazlet ‘Isa, over 250 shops and seven houses have been demolished, while another seven houses are now located on the other side of the Wall. Nearly 15,000 dunums of land (approximately 3,800 acres) have been destroyed in the first phase of construction. Further, it is important to note that while the international community passionately debates the route, naming and permanence of the Wall, Israeli authorities continue to alter the nature of the land presently between the Wall and the Green Line. The building of roads, destruction of arable land, and development of Israeli infrastructure on this territory not only adds to the extensive property destruction associated with the construction of the Wall, but serves to effectively formalise the route and establish the Wall’s permanency.

Further, the Wall blocks not just Palestinians from crossing the border, but also any opportunity to achieve a meaningful peace in the region. Rather than seeking ways in which each party can live freely and without interference, Israeli authorities have unilaterally and forcibly imposed an invasive “solution” through newly-created facts on the ground. Recognising this, the UN General Assembly has called on Israeli authorities to “stop and reverse the construction of the Wall.”[1] Further, concerns about Israel’s actions have been raised by international leaders around the globe, including UN Secretary General Kofi Annan, who noted that, Israel has repeatedly stated that the Barrier is a temporary measure. However, the scope of construction and the amount of occupied West Bank land that is either being requisitioned for its route or that will end up between the Barrier and the Green Line are of serious concern and have implications for the future. In the midst of the road map process, when each party should be making good-faith confidence-building gestures, the Barrier’s construction in the West Bank cannot, in this regard, be seen as anything but a deeply counterproductive act. The placing of most of the structure on occupied Palestinian land could impair future negotiations. [2]

It is gravely disturbing that despite the unquestionably extreme impact that the construction of the Wall will have on the Palestinian population in the OPT, and calls from the international community to cease its construction, Israeli authorities are continuing with its construction as planned.

The Annexation Wall and International Law

International Humanitarian Law

Israeli policies regarding the construction of the Annexation Wall clearly breach international humanitarian law. Although Israeli authorities have accepted the applicability of the Regulations Annexed to the 1907 Hague Convention Respecting the Laws and Customs of War on Land due to their customary nature, Israel contests the de jure applicability of the Fourth Geneva Convention Relative to the Protection of Civilians to the OPT. However, the vast majority of the international legal community has rejected these claims, agreeing that Israel must meet the obligations it committed to undertake.

Article 23(g) of the Hague Regulations prohibits the destruction or seizure of enemy’s property, unless it is imperatively demanded by military necessity. Article 53 of the Fourth Geneva Convention expands this principle:

[a]ny destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

International humanitarian law also permits the requisitioning of property in occupied territories if it is for the need of the occupying forces. However, Article 52 of the Hague Regulations states that such requisitioning must be in proportion to the resources of the country. In light of the substantial proportion of arable land, aquifers and other natural resources which are being annexed by the construction of the Wall, its construction clearly does not meet this criteria. Further, the building of fortifications may not be construed as being necessary for the military needs of the army of occupation, as they serve instead “for future military operations of the Occupying Power.” [3]

At the heart of the Fourth Geneva Convention is Article 27, which proclaims the principle of respect for the human person and the inviolable character of the basic rights of individuals. While certain rights may be restricted for security measures “as may be necessary as a result of war,” no specifications are made as to what security measures may be considered legitimate actions for a state to take in a time of emergency. This leaves a great deal of discretion to the parties to a conflict to restrict rights. The International Committee of the Red Cross (ICRC) Commentary stresses however, that what is essential is that such measures not affect the fundamental rights of the persons concerned. Reality on the ground, however, makes evident the lack of respect for the human person. As noted by the ICRC,

[t]he problems affecting the Palestinian population in their daily lives clearly demonstrate that it runs counter to Israel’s obligation under IHL to ensure the humane treatment and well-being of the civilian population living under its occupation. [4]

While Israel has a right under international law to place limited restrictions over Palestinians’ freedom of movement, any such restrictions must be justified and must not infringe upon Palestinians’ other basic rights. As noted by the ICRC at the launch of its closures relief programme, measures which serve to isolate entire villages are contrary to international humanitarian law, and such restrictions frequently lead to breaches of numerous provisions thereof. In particular, they noted that measures taken to address security concerns must be in accordance with international humanitarian law, and must allow for a quick return to normal civilian life.

Al-Haq believes that the Annexation Wall as planned and constructed to date does not serve any of these needs, but rather Israel’s broader annexationist policy. Its construction constitutes “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,” a grave breach of the Fourth Geneva Convention. The ICRC has clearly stated that the Wall’s construction and its associated measures to date are a violation of Israel’s international legal obligations:

The measures taken by the Israeli authorities linked to the construction of the Barrier in occupied territory go far beyond what is permissible for an occupying power under [international humanitarian law]. [5]

International Human Rights Law

The construction of the Annexation Wall violates numerous provisions of international human rights law, such as the rights to freedom of movement and to own property, and results in the violation of other basic rights such as the right to work, education and health. Most fundamentally, it represents a violation to the right of self-determination.

The right to freedom of movement within one’s own country is upheld in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). While this right may be subject to restrictions for the protection of national security, such restrictions must be consistent with other fundamental rights. However, the Wall, a structure which graphically illustrates the prison-like reality faced daily by Palestinians, cannot be justified on the ground of national security. It isolates Palestinians not merely from Israelis but from each other. The few gates in the Wall that do exist serve as tools to further violate Palestinians’ rights. Most significantly, it has been constructed not on Israeli territory, but on the West Bank. The sweeping movement restrictions it imposes are disproportionate, even if considered within the context of a time of emergency, and target only Palestinian civilians.

The construction of the Wall has also entailed violations of the rights to own property and to be free from arbitrary or unlawful deprivation thereof, fundamental rights upheld in the UDHR. The right to adequate housing and the prohibition of arbitrary or unlawful interference with one’s home are upheld in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the ICCPR respectively.

Further, restrictions on Palestinians’ right to movement has resulted in further violations of other fundamental rights. Palestinians have been unable to access their agricultural land, employment, markets, clinics, schools, and social and religious communities. As a result, they have been subject to violations of the rights to work, food, health, and education. Perhaps most fundamentally, the Wall represents a violation of the Palestinian right to self-determination. Article 1(1) common to the ICCPR and the ICESCR states that,

[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

The UN General Assembly has repeatedly recognised the right of the Palestinian people to self-determination and condemned “those governments that deny the right to self-determination…of the peoples of Southern Africa and Palestine.”[6] Construction of the Wall will pre-empt the successful exercise of the Palestinian right to self-determination by annexing much of the West Bank and dividing the remainder into unconnected enclaves. In his 2003 report, the UN Special Rapporteur on Situation of Human Rights in the OPT stated,

[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. [7]

Clearly, through the Annexation Wall’s construction, Israel is violating fundamental human rights of the Palestinian people.

International Law and Annexation

While the occupation of territory during an armed conflict is not illegal per se, international law is clear that occupation is temporary and that the final status of any territory so occupied can only be determined in negotiations between the relevant parties, i.e., the Israeli and Palestinian people. UN Security Council Resolution 242, passed after the 1967 War, emphasised the “inadmissibility of the acquisition of territory by war,” and called for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict.”

Further, the acquisition of territory by force is prohibited by international law. While conquest was a recognised basis for title until the early 20th century, it is now well-established that state territory shall not be the object of acquisition by another state as a result of the threat or use of force. The acquisition of territory through any war, including one of self-defence, is prohibited.[8] As noted by the UN Special Rapporteur on the Situation of Human Rights in the OPT, the Wall must be condemned as,

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.[9]

The International Court of Justice and the Annexation Wall

The UN General Assembly requested the International Court of Justice (ICJ) to urgently render this Advisory Opinion in December 2003. This referral was done in full accordance with international law, in particular with Article 65 of the Statute of the ICJ, which states,

1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.

2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question.

The inclusion of the General Assembly as a duly authorised body is established in Article 96(1) of the UN Charter, which notes that “[t]he General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.” The valuable role of the ICJ in the development and understanding of international human rights and humanitarian law through the issuance of Advisory Opinions has been repeatedly proven, notably through such cases as Reservations to the Genocide Convention (1951), South West Africa (1971), and Opinion Concerning the Legality of the Threat or Use of Nuclear Weapons (1996). Consideration by the ICJ of the Annexation Wall will provide the opportunity for greater understanding of the fundamental values of the international community and clarification of their normative basis.

However, it cannot be denied that this hearing has been surrounded by controversy, particularly from critics who have suggested that such it would be political rather than legal in nature. It should be noted that a just and durable solution to the Israeli-Palestinian conflict lies in respect for international law. As such, this hearing is a welcome opportunity to provide an objective legal, not political, assessment of the international legal implications of the Wall’s construction on the OPT. 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.

The Annexation Wall and the International Community

The obligations under international law, notably the Geneva Conventions, are not limited to the parties which have ratified the Conventions. In many instances, they extend to the international community as a whole. For example, Article 1 common to all four Geneva Conventions clearly states that, “[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” The ICRC, which serves as the guardian of international humanitarian law, has emphasised that the Conventions demand not just that High Contracting Parties ensure its application themselves, but that they “should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally.”[10] This is not merely a declaration of intent, but in fact provides for a level of inter-state accountability in regards to the application of the Convention.

The international community has upheld part of this obligation to ensure respect for the Fourth Geneva Convention by referring the case to the ICJ. Al-Haq welcomes this referral and believes that it places the issue precisely where it belongs: within the arena of international law. However, it is deeply disturbing that the European Union and several individual states have urged the ICJ not to hear the case. Such acts dismiss the importance of respect for international human rights and humanitarian law in the achievement of peace.

We urge the international community to uphold its obligation to ensure respect for the Geneva Conventions and support the ICJ in its objective deliberations. It is only through such respect that we can achieve a just and durable solution to the Israeli-Palestinian conflict.

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    Notes:

    1. UN General Assembly, “Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory,” A/RES/ES-10/13, 23 October 2003.
    2. UN Secretary General K. Annan, “Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13,” A/ES-10/248, 24 November 2003, para. 29.
    3. F. Kalshoven, Constraints on the Waging of War (Geneva, ICRC, 1987), pp.55-56.
    4. ICRC, “Israel/Occupied and Autonomous Palestinian Territories: West Bank Barrier Causes Serious Humanitarian and Legal Problems,” Press Release 04/12, 18 February 2004.
    5. Ibid.
    6. Inter alia, General Assembly Resolution 2649 (XXV) of 30 November 1970.
    7. UN Special Rapporteur J. Dugard, “Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the situation of human rights in the Palestinian territories occupied by Israel since 1967, submitted in accordance with Commission resolution 1993/2 A,” E/CN.4/2004/6, 8 September 2003, para. 15.
    8. J. McHugo, “Resolution 242: A Legal Reappraisal of the Right-Wing Israeli Interpretation of the Withdrawal Phrase with Reference to the Conflict Between Israel and the Palestinians” 51 International and Comparative Law Quarterly 2002, p. 851.
    9. See supra note 7 at para. 16.
    10. ICRC, Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, ICRC, 1958), p. 6.