One year ago on 9 July 2004, at the request of the United Nations, the International Court of Justice in The Hague issued an Advisory Opinion on the legal consequences of Israel’s construction of a wall in the Occupied Palestinian Territories.
What the Advisory Opinion said
The Advisory Opinion was important in a number of fundamental respects. While the Opinion itself is not binding, it represents the most authoritative statement to date of the content and applicability of international law concerning Israel’s occupation of Palestinian territory. In fact, the Court’s Opinion did not create any new obligations, it simply confirmed existing ones.
In summary, the Court concluded that the West Bank and Gaza, including East Jerusalem, are occupied territories under international law, and Israel is an occupying power with consequent legal obligations. Furthermore, Israeli settlements breach international law. Finally, Israel’s occupation practices violate both international human rights and humanitarian law obligations.
In short, the Court made clear that the construction of the Wall and the settlements were illegal. Israel should not only immediately stop with its construction, but also begin dismantling them and to pay reparations to those who had lost their property as the result of the Wall’s construction.
The Court furthermore declared that Israel stop its violations of international law, which includes human rights and humanitarian law violations against Palestinians in the Occupied Territories.
Consequences for The Netherlands?
But, the Court did not stop at Israel’s obligations. An overwhelming majority of the Court concluded that all states were obliged not to recognize the illegal situation Israel has created and to refrain from any financial support to Israel in maintaining the illegally constructed wall.
The Court also pointed out that signatories to the Geneva Conventions of 1949 (including The Netherlands) had “additional obligations to ensure Israel’s compliance” with the Conventions. Finally, the Court declared that United Nations General Assembly and Security Council ought to “consider further actions” against Israel to bring an end to the “illegal situation”.
What has been the response so far?
Throughout the Advisory Opinion, references were made to breaches of international instruments that organisations such as Amnesty International and Human Rights Watch have been raising for years. These all point to Israel’s persistent violations of international law, which these same human rights organisations have since reaffirmed. The reaction of the international community has been more muted.
While Israel’s violations have continued to be raised, mainly in the United Nations, powerful governments have only issued private protests, if at all. There has been an obvious reluctance to openly and strongly condemn Israel’s violations of international law.
Secondly, there have been several fact-finding missions undertaken by, amongst others, Professor John Dugard of Leiden University. Dugard has been designated by the UN as Special Rapporteur on the situation of human rights in the Palestinian Territories; each of his reports, the last one issued in March 2005, have amounted to strong indictments of Israel’s failure to respect or even acknowledge its international law obligations, let alone cease its violations.
However, each of these steps has fallen short of insisting that there will be consequences if Israel continues to defy the will of the international community. This is despite a stern warning from Dugard that:
“Israel’s defiance of international law poses a threat not only to the international legal order but to the international order itself. This is no time for appeasement on the part of the international community.”
What remains to be done?
Much remains to be done before States can be said to be in compliance with international law: this includes the Netherlands government. States must emphasise in all their contacts with Israel of the imperative need of compliance by Israel with international law, which includes compliance with the advisory opinion. States must also hold Israel to account by taking measures in the event of further non-compliance.
In addition to what has been done so far, the Dutch government, both on its own and with the European Union and United Nations (especially the Security Council), could persistently condemn Israel’s violations of international law and threaten to take further action against Israel if these violations continue. These could be backed up by direct, public protests of individual states and privately and publicly denouncing Israel’s continued violations of international law.
Ultimately, if Israel continues to defy the international community, then there are several concrete steps available, ranging from expulsion of Israeli diplomats and halting existing negotiations (for example halting arms sales to Israel from the European Union) to stopping technical assistance so long as Israel continues to violate international law by building settlements and constructing the Wall. A further measure could include the EU suspending its Association Agreement with Israel on the grounds that Israel has persistently violated the human rights clause to the Agreement.
Respect for human rights as a pre-requisite to peace
“But isn’t peace more important than human rights”, some have asked?
Perhaps the most significant aspect of the Advisory Opinion is that respect for human rights and humanitarian law does not depend upon a peace settlement. The Security Council has repeatedly made clear that violations of human rights are themselves “threats to international peace and security”. Indeed, the Court made it very clear that a negotiated solution should be achieved “on the basis of international law” and that these obligations to ensure respect for international law bind not only Israel, but all States.
One year after the highest judicial authority in the world made clear that respect for international human rights and humanitarian law is of utmost priority, it is time for concrete follow-up.
Just as in apartheid South Africa, the Israeli government’s violent policy of repression presents a point of no return for the international community. For the sake of both Israelis and Palestinians, the government of The Netherlands and the rest of the international community must take concrete action and live up to their international obligations.
Jeff Handmaker and Gentian Zyberi are both international legal scholars and Ph.D. candidates and Dr. Peter Malcontent is lecturer in international relations, all at the Netherlands Institute of Human Rights (SIM), Utrecht University.