Legality of Israel’s Wall to be tested before the International Court of Justice

Part of the ICJ building. (ICJ)

In December of last year the United Nations General Assembly decided to request an Advisory Opinion from the International Court of Justice on one of the most controversial issues of the Israeli-Palestinian conflict in recent years, Israel’s construction of a “security wall” in the Occupied Territories. Specifically, the General Assembly put the following question to the court:
What are the legal consequences arising from the construction of the Wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?

The facts and human rights implications of Sharon’s latest enterprise are widely known and well-documented: further confiscation and destruction of Palestinian land, de facto annexation of that land to Israel (6% of the West Bank), the creation of prison-like conditions in towns like Qalqilya, severe restrictions on freedom of movement with access denied to farmland, schools and workplaces and the enforcement of an apartheid-like system by physically keeping the two communities apart. The Wall’s stated purpose of security, of preventing Palestinian suicide bombers from entering Israel and killing innocent Israelis, has been undermined by the actual route of the Wall. It runs entirely within the West Bank, not on the Green line, leading to a situation where vast tracts of lands are being annexed to Israel. Rather than going into the details of the Wall’s construction, or the serious implications just outlined, this article will instead look at the avenue that has just been opened up by the General Assembly in referring this issue to the International Court of Justice.

What is the International Court of Justice? The ICJ, often called the World Court, is based at the Peace Palace in The Hague and was established under the Charter of the United Nations, adopted in San Francisco in 1945. It replaced the Permanent Court of International Justice that had been established by the League of Nations during the inter-war period. The ICJ is described in Article 92 of the UN Charter as “the principal judicial organ of the United Nations”. It serves a dual purpose: to settle legal disputes between States and to give so-called “advisory opinions” on legal questions referred to it by certain international bodies. Mostly it is the Security Council or the General Assembly that submit legal issues to the Court for its consideration. It is by way of an advisory opinion that the ICJ will have to pronounce on the legality of the Wall that Israel is building in the West Bank.

Since it began its work the ICJ has given over twenty advisory opinions on various issues, including the legality of the threat or use of nuclear weapons, admission to the United Nations, the status of human rights rapporteurs and compensation for injured United Nations workers. On the face of it an advisory opinion does not differ that much from a regular case; the sources of law are the same, interested States may make submissions and the Court looks at all sides of the issue. Following this the Court will deliver its decision. However, the decision is not necessarily in anyone’s favour. An advisory opinion is given primarily on a point of law, although in the case of Israel’s Wall it is clear that if the opinion finds that the construction of the Wall violates international law, which is likely, then it can be said to go against Israel. The most significant difference between cases and advisory opinions, and of crucial importance, is the fact that advisory opinions are not binding. This means that the States involved, if there are any, are not legally obliged to respect the decision of the Court. This raises the question then of what value advisory opinions do have.

To properly gauge the significance of ICJ advisory opinions it is necessary to first look at the status of the Court itself. As already mentioned, the Court was set up under the UN Charter, a treaty which forms the very foundation of modern international relations and which has been signed by practically every country in the world, including Israel. By virtue of signing the UN Charter every country has accepted the legitimacy and jurisdiction of the ICJ. The Court hears cases and issues advisory opinions on a wide-variety of issues, almost always of the utmost seriousness. Past cases have looked at nuclear-testing in the Pacific, US sponsored Contra actions in Nicaragua and at subjects such as territorial rights over land and fishing zones. There are presently cases pending before the Court concerning the charge of genocide in Bosnia and Herzegovina and the use of force by NATO countries against Serbia. The Court is undoubtedly the highest judicial organ in the world, its pre-eminence only matched by the recently created International Criminal Court.

A judgement or an advisory opinion from the International Court of Justice clearly carries considerable weight then. It is said that the full authority of the Court attaches to these rulings. According to the Court’s statute the ICJ is made up of

a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.

The fifteen judges who are currently serving were elected by open and fair procedure and some of the countries represented on the bench include China, the Netherlands, the United States of America, Germany, Jordan, Brazil, the United Kingdom and Egypt. Advisory opinions are said to be of “persuasive authority”, that is to say, if another court or tribunal is confronted with an issue that the World Court has ruled on, then that court will usually follow the findings of ICJ.

So what can we expect in February when the ICJ begins proceedings on the legality of Israel’s Wall? On receiving a request for an advisory opinion, the Court will decide which States and organisations might provide useful information. These are then given an opportunity to make written or oral statements to the Court. In December the Court asked “the United Nations and its Member States, as well as Palestine” to inform the Registry by 13 February if they are intending to take part in the hearings. The Court recently announced that both the League of Arab States and the Organisation of the Islamic Conference would participate in the proceedings.

Daniel Bethlehem, a British international law expert and Professor Alan Dershowitz, head of Harvard Law School and author of The Case for Israel have both been acting as consultants on this case for Israel. So far Israel has sought that judges, who it believes have expressed opinions hostile to Israel in the past, be excused from the proceedings. The call to remove Judge Elaraby of Egypt was rejected by the Court; it found that the comments he had made in 2001, as a diplomat, “expressed no opinion on the question put in the present case”.

It is not clear yet whether Israel will decide to represent itself at the proceedings. It does, however, challenge the Court’s authority to rule on this issue, while also defending the Wall on security grounds. An Israeli government official recently stated, “We believe that the court should not and cannot deal with this political issue, which has to be dealt with by direct negotiations between Israel and the Palestinians”. The British government also lodged an official objection to the ICJ arguing that this hearing would “serve to politicize the court in a way for which it was not designed”. The plain fact is that courts the world over are always ruling on issues that could be considered political. Israel’s own Supreme Court has looked at the legality of settlements in the Occupied Territories - an intensely political issue. At issue before the ICJ is the violation of established rules of international law that the construction of this Wall entails and Israel should not escape legal scrutiny by way of this flimsy argument.

The Israeli government seems resigned to the fact that the advisory opinion will not go in its favour. This indicates that their awareness of the illegal nature of the Wall; that its construction violates the rules in the Fourth Geneva Convention and that, by way of its route, it unlawfully annexes even more Palestinian land to Israel. Clarification of the illegality of this Wall by the world’s highest judicial authority will bring the plight of the Palestinians to the fore and will serve to highlight the duplicitous conduct of Israel, in spite of its concerted public relations efforts to the contrary. Although we are unlikely to see Sharon order the demolition of the Wall, or even a halt to its construction, an unfavourable ruling by the ICJ could, as Israel’s own foreign minister warned, lead to pariah status for the country for such treatment of the Palestinian people.

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    Shane Darcy is a doctoral fellow at the Irish Centre for Human Rights, in the National University of Ireland, Galway and a founding member of Human Rights for Change. He is the author of ‘Israel’s Punitive House Demolition Policy: Collective Punishment in violation of International Law’ (Al-Haq, Ramallah, 2003).