The Electronic Intifada 1 June 2004
In a few months, the International Court will conclude its deliberations on the wall that Israeli constructs on Palestinian land. It has long been claimed that the Palestinian-Israeli conflict is a political problem and that the solution is a political solution. However, what the Palestinians have been witnessing since 1967 is land grab and settlements expansion done through “legal” means, when in fact the law was always abused to satisfy Israel’s expansionist whims. Azem Bishara, a legal expert, argues that an advisory opinion will reverse that process with an authoritative statement on basic legal issues that have been long disputed by Israel.
On the 8th of December 2003, the United Nations General Assembly adopted resolution A/ES-10/14, pursuant to article 96(1) of the United Nations Charter by which it requested the International Court of Justice to give an urgent advisory opinion on the following question:
“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?”
Though the chief focus of this article is the examination of issues raised by this request and the legal consequences of the construction of the Wall by Israel in the Occupied Palestinian Territory (OPT), a brief presentation of the factual background leading to the former request by the General Assembly is necessary.
The Wall- the last in a series of Israeli measures in the OPT’s
The Wall being constructed in the West Bank since mid 2002 is only another step in the escalation of the measures taken by Israel since the occupation of the West Bank and Gaza in 1967. Israel authorized the construction of the Wall, the so called “security barrier”, in the “seam zone” between the West Bank and Israel and in parts of East Jerusalem on April 2002, two years after the eruption of the Palestinian uprising in September 2000. The construction of the Wall was authorized in a series of decisions adopted by the Israeli government and the Israeli cabinet1.
The total length of segments authorized to date is more than 570 km. Out of those, 180 km were already established and the construction is on going in various segments amounting to a total length of 75 km2. The majority of the authorized sections of the Wall deviate for the Armistice Line established under the Israeli Jordanian Armistice Agreement of 1949 and is being built almost entirely on OPT3.
In and around Palestinian urban areas the Wall consists of concrete cement Wall of 8 meters high. In other segments the composition includes a fence with electronic sensors surrounded from both sides with barbed and razor wires, a trench, paved roads for Israeli patrols and sand trace path to detect footprints4. The width of the latter complex varies between 30 and 100 meters5. The Wall when completed as planed would not only separate Israel and the West Bank, but is also expected to separate it from the Jordan valley6
On the 2nd and the 7th of October 2003, the military commander of the West Bank issued four military orders declaring the area in the OPT between the Wall and the Green Line as a closed military zone. According to these orders, the movement of the residents and workers of the closed area is subjected to an onerous permit system7. This permit system explicitly excludes “Israelis”, defined in the aforementioned Declarations as “citizens of Israel, residents of Israel and those entitled to citizenship by the Law of Return8”, all of whom are free to move about in the zone, enter and exit; while others, in practice Palestinians, are directly subjected to the closed area regime and the permit system.
The construction of the Wall entails seizure of lands for “military needs” and vast and wanton destruction of property and will result in creating enclaves of Palestinians towns and villages sounded by fences and Walls. Houses bordering the Wall have already been demolished using the pretext of “military need” or “lack of permit”.
Moreover, the pass system presented will surely affect all civilian aspects of life. The criteria of obtaining a permit is vague and can arbitrarily be refused, as has been the practice with different kinds of permits in the past, without offering any reasoning beyond a mere statement of “security reasons”.
Lands to be found on the eastern side of the Wall, part of the most fruitful in the West Bank for a society mainly depending on agricultural for its livelihood, could be declared as “state land” if they are not cultivated for a period of three years, regardless of the reason. Furthermore, the Wall will enable Israel to further usurp Palestinian natural resources, in particular water, and restrict the ability of Palestinians to exploit and extract water resources found on the eastern side of the Wall9.
The deviation of the Wall from the Armistice Line was justified as being the result of three considerations: I. Topographic considerations. II. The need for establishing a buffer zone between the Wall and the Green Line to enable the chase and capture of terrorists before they enter Israel. III. The desire to leave as many settlements as possible on the west side of the Wall out of concern for their security10.
The incompatibility of the latter two considerations invites criticism. If the purpose underlying the route of the Wall is to have a buffer zone before terrorists reach civilian concentrations. then why is it planned to include as many civilian settlements as possible. It is clear that the annexation of settlements is the main consideration for determining the current route of the Wall and no other.
At one and the same time Israel has been engaged in a clear attempt to colonize the OPT by transferring parts of its population, building settlements and an extensive infrastructure to support the existence and expansion thereof. In accordance with this policy a series of legal and administrative measures were adopted. Amongst these measures were land seizures for military purposes11, declarations of lands as state lands, expropriation of lands under the Jordanian zoning and planning laws for “public purpose”. Additionally, Israel adopted a comprehensive plan to build a vast network of roads connecting the settlements with each others and with Israel while by-passing Palestinian towns and villages and used two mandatory plans to limit the growth of Palestinian villages and towns while amending those plans whenever necessary to build or expand settlements12.
It is important to recall that by 2003, land appropriated for Israeli settlements in the West Bank, including East Jerusalem, constituted 41.9 percent of the total area of the West Bank. By 1993, the date of the signing of the Declaration of Principles between Israel and the PLO, there were a total number of 247,000 Israeli settlers in the West Bank, including in East Jerusalem. This figure had risen by the end of 2001 to 375,000 and is constantly increasing13. This has resulted in a legal regime of dual character, where two different sets of laws apply to two different ethnic populations14.
Given the aforementioned it is important to view the Wall in its wider context as the culmination of a series of Israeli polices and practices since the occupation of the West Bank in 1967 designed to change the status of the OPT’s by creating facts on the ground and presenting them as fait accompli.
It should be remembered that although the Palestinian situation has been always on the agenda of the UN, this is the first time that aspects thereof are to be considered by the International Court of Justice. However, this does not mean that legal issues related to the conflict were not present; on the contrary the claimed political feature of the conflict, a claim always promoted by Israel, always somehow submerged them.
The Advisory Function of the Court
The Competence of the General Assembly and the Jurisdiction of the Court
The advisory function of the court is governed by the terms of the UN Charter and the court’s Statue. In particular, by article 96 (1) of the United Nations Charter which provides the General Assembly with the legal competence to request an advisory opinion from the International Court of Justice. Additionally, Article 65(1) of the court’s Statute vests the court with the competence to respond to a request for an advisory opinion from an authorized body in accordance with the United Nations Charter. This latter power of the ICJ is discretionary given the permissive language of article 65(1) of the court’s Statute and the jurisprudence of the court.
However, given the fact that the court’s opinion is not given to states but to an organ of the UN, the court’s reply, itself an “organ of the United Nations”15, represents its participation in the activities of the organization and in principle, should not be refused16. Indeed, this has been the practice of the ICJ, which has never refused to give an advisory opinion in reply to an admissible request by a competent organ of the UN.
Moreover, unlike other organs of the United Nations and its specialized agencies, whose power to request advisory opinions is restricted to legal questions “arising within the scope of their activities”17, the Assembly’s power is not so restricted under Article 96 of the Charter and it may include any legal question. This is compatible with the General Assembly’s powers under Chapter IV of the United Nations Charter, which provide for an extensive mandate that includes the power to “discuss any questions or any matter within the scope of the present Charter…”18. This includes matters related to self-determination19, human rights20 and an express authority under article 11 of the UN Charter to consider general principles of co-operation and discuss any questions relating to the maintenance of international peace and security. All these legal matters are amongst the merits of the case in question.
In order for a question to be a “legal question”, it is suffice that it is framed in terms of law and is raising problems of international law in order to be given a reply by the court based on law21. There is no doubt that the question posed by GA resolution A/ES-10/14 was formed as a legal question concerning the international legal aspects of the construction of the Wall in the OPT’s. Those aspects include identifying the applicable laws, examining the legality of the construction of the Wall as well as determining the legal consequences of its construction. The question does not relate to other aspects, namely political and the court is not being asked to pronounce on any of the related political issues. In particular the court is not being asked to delaminate any borders. The court gave an advisory opinion to a similar question posed by the Security Council22 concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) of 197123. Moreover, “a mixed question of law and fact is nonetheless a legal question within the meaning of Article 96, paragraph 1, of the Charter and Article 65, paragraph 1, of the Statute”24 and “the contingency that there may be factual issues underlying the question posed does not alter its character as a ‘legal question’ as envisaged in Article 96 of the Charter”25.
Issues of Judicial Propriety
The two main arguments advanced as to why the court should refrain, as a matter of judicial propriety, from rendering an advisory opinion are the following: I. The question relates to an existing dispute between Israel and other states. II. An advisory opinion would interfere or be inconsistent with the political process for solving the dispute, namely the most recent “Performance Based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict”26.
As for the first argument, the court in the South West Africa advisory opinion has rejected a similar argument promoted by South Africa27. Moreover it is well established in the practice of the ICJ that the advisory function is aimed at stating the law rather than adjudicating between parties and “The fact that, in order to give its answer, the Court might have to pronounce on legal questions upon which divergent views exist… does not convert the case into a dispute between States.” 28
As to the second argument, it is hard to see how stating the applicable law in this case and the legal consequences of the construction of the Wall would jeopardize the peace process. In particular, when the Wall has the affect of de facto annexation and altering the status of territories that would be the subject of any future negotiations. If anything, an advisory opinion on this specific question would facilitate the peace efforts by authoritatively establishing the present legal situation.
The Legal Framework
The applicable law to the OPT, and its interpretation, has long been the subject of a disagreement between Israel and the international community. While Israel never took a clear stand on the applicability of the Hague Regulations annexed to the Hague convention (IV) respecting the Laws and Customs of War on Land, 1907 (“Hague Regulations”)29, it argued that the Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949 (“Fourth Geneva Convention”) does not apply de jure to the OPT. Yet Israel stated that it is willing to de facto apply the “Humanitarian provisions” of the latter convention. Moreover, Israel has argued that human rights law does not apply at present in the OPT since the applicability of this corpus of law is limited to peacetime30.
The applicability of the Fourth Geneva Convention and the Hague Regulations
Immediately after the occupation of the West Bank, the Israeli military commander issued a proclamation that, inter alia, provided for the application of the Fourth Geneva Convention as a supreme norm in the Occupied Territories31. Not long after, this proclamation was revoked, as it was incompatible with Israel’s political stance to view those territories as occupied. Israel’s official legal argument concerning the applicability of the Fourth Geneva Convention is based on an interpretation of the second paragraph of article 2 of the Fourth Geneva Convention32. Israel claimed that neither the West Bank nor Gaza was a territory of a High Contracting Party since Jordan and Egypt had never had sovereignty over those territories33.
The second paragraph of article 2 of the Fourth Geneva convention clearly intends to ensure the application of the convention in cases where the occupation was not the result of an armed conflict34. The relevant paragraph for situations arising from an armed conflict, such as that of the 1967 war, is the first paragraph by which the Convention shall apply to “All cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties”. In the 1967 war between Israel, Jordan and Egypt, all parties to the convention, Israel occupied territory which was not its own and remains in occupation. Accordingly the Fourth Geneva Convention applies until there is an internationally accepted settlement concerning this territory.
Moreover, numerous General Assembly and Security Council resolutions as well as the declaration of the Conference of High Contracting Parties to the Fourth Geneva Convention35 confirmed the applicability of the Fourth Geneva Convention to the OPT. These confirmations constitute an interpretation and subsequent practice of the parties to that convention and should be taken into consideration when coming to examine the applicability and interpretation of the convention. 36
The test for determining if a territory is occupied in order for the legal regime of occupation under International Humanitarian Law to apply is a factual test of “effective control”. This test does not take into account any possible legal claims to the territories concerned or to the legality of the war that resulted in the occupation.37 It has been debatable whether or not Israel is still occupying certain areas that were transferred to the Palestinian Authority under the Oslo Accords38. However, it is clear that at least since the eruption of the second Intifada Israel has effective control over all of the West Bank, as evident by the continued incursions into areas under the authority of the Palestinian Authority and by entirely controlling the surroundings of those territories. The fact that Israel did not resume its obligations towards the civilian population does not mean that it has no effective control; On the contrary, it means that it is in violation of its obligations under the laws of occupation. Furthermore, the Wall is being constructed in areas where Israel retained full control over security and civil spheres or overriding responsibility for security under the interim agreement with the PLO39.
The Legality of the Wall under International Humanitarian Law
On the merits Israel argued that the construction of the Wall is authorized under: I. The laws governing the conduct of hostilities, namely Article 23(g) of the Hague regulations, which authorizes the destruction or seizure of property “imperatively demanded by the necessities of war”. II. In addition, such an authority exist in the laws of belligerent occupation, namely under article 52 of the Hague regulations, which allow for requisition of land for military needs. And III. Under article 43 of The Hague regulations requisition of lands is allowed for the purpose of ensuring “public order and safety”40.
As for the claimed authority to seize and destroy property under article 23(g) of the Hague regulations, two limiting criteria’s have to for it to be lawful. First the necessity must arise from “military operation”. Second, the necessity must be “absolute” i.e. no alternative whatever exists to the destruction of property. Those explicit criteria’s are additional to the overriding principle of proportionality, and were restated in article 53 of the Fourth Geneva Convention, which prohibits the destruction of property unless it “is rendered absolutely necessary by military operations”. Accordingly, the destruction of property for the general interests of the occupying power is prohibited. None of those criteria’s are meet in the present case, as the construction of the Wall and the destruction of Palestinian property is not part of an ongoing military operation. Likewise, the vast destruction of property is not proportionate and alternatives do exist i.e. constructing the Wall on Israeli territory.
The seizure of property Under Article 52 of the Hague Regulations is permissible only “for the needs of the army of occupation”. This excludes seizers or requisitions of property for the broader interests of the occupying power or its civilians. Even if the need of the army of occupation is said to be the protection of the occupying country, there is no need for the Wall to be constructed on Palestinian territory rather than on Israeli territory. Moreover, given the underlying presumption that occupation is a temporary state of affairs, article 52 authorizes requisition of property as distinct from confiscation or expropriation. Though the formal ownership over lands seized for the construction of the Wall has not changed, the seizure and destruction of those lands has, nonetheless, the effect of confiscation given the permanent nature of the Wall.
The merit of Israel’s last argument is that the powers to maintain “public order and safety” under article 43 of the Hague Regulations, include requisition of lands for the purpose of defending and safeguarding the safety of Israeli settlers living in the West Bank.
The rational underlying article 43 of the Hague regulations is the prohibition on changing the status and nature of the occupied territories. In spite of the aforementioned, Israel has, nonetheless, claimed the authority under this article to present an unprecedented change in the nature of the occupied Palestinian territories by constricting a Wall that fundamentally alters the status and nature of the West Bank. Furthermore, this change in the nature of the occupied territories is being openly advocated to be for the purpose of protecting not only what is illegal under article 49(6) of the Fourth Geneva Convention, the transfer of its own population to the occupied territories, but what is declared to be a “grave breach” and a war crime by article 85 of Additional Protocol I to the Geneva Conventions.
Plainly, Just as the transfer of civilian populations into occupied territory is unlawful, so, too, are the settlements accommodating the transferred populations unlawful as well as the Wall being diverted away from the Armistice Line well into the OPT to protect them.
Absent authorization under the applicable law, the construction of the Wall in the OPT is a violation of International Humanitarian Law and Human Rights Law. It also constitutes a violation of the prohibition on acquisition of territory by force, one of the basic principles of international law and a correlation of the prohibition on the use of force. Under the law of state responsibility, these violations constitute an international wrongful act attributed to Israel and entail consequences for both Israel and the international community41.
Accordingly, Israel is under a duty cease the construction of the Wall42, and to make full reparation for the injury caused by its wrongful act43. Reparations can take the form of restitution, compensation or satisfaction44. However, the principle form is restitution that, so far as possible, wipes out all the consequences of the illegal act and reestablishes the situation that existed had the wrongful act not been committed45. Consequently, the Wall being constructed should be dismantled and the lands seized returned to its lawful owners. In addition, compensations should be paid in so far as the damage made by the construction of the Wall is not made good by restitution46.
Amongst the violations resulting from the constructing of the Wall are violations of peremptory norms of general international law, in particular, the principle on non-acquisition of territory by force. As a result, other states are under the obligation not to recognize as lawful the situation created by the breach of the peremptory norm, nor render aid or assistance in maintaining this situation47. This latter obligation is of utmost importance given Israel’s attempt to present the Wall as a fait accompli and possible attempts by certain states to accept it as such.
The International Court of Justice advisory opinion on the legal consequences of the construction of the Wall, would be an authoritative statement on basic legal issues that have been long disputed by Israel and would help in prompting the role of international law in a conflict where it has only been absent or submerged by political claims. It has long been claimed that the Palestinian Israeli problem is a political problem and that the solution is a political solution. However, what the Palestinians have been witnessing since 1967 is land grab and settlements expansion done through “legal” means, when in fact the law was always abused to satisfy Israel’s expansionist whims. The Wall is being constructed on Occupied Palestinian Territories while being justified in legal arguments. The International court of Justice has played a crucial role in the past in relation to self- determination issues and contributed to upholding the role of law and ending situations of occupation and colonization. It is high time that law claims a role in the Israeli Palestinian conflict and it is unquestionable that an advisory opinion would promote this end.
Azem Bishara is currently an LLM student in University College London and a lawyer who has litigated cases concerning the construction of the Wall in the Occupied Palestinian Territories before the Israeli High Court of Justice.
See State response in HCJ 7784/02, Sa’el Awani Abd Al Hadi et. al. v. The Commander of the IDF Forces in the West Bank; also HCJ 9961/03 - HaMoked: Center for the Defense of the Individual v. The Government of Israel et al
Commission Resolution 1993/2 A, UN Doc. E/CN.4/2004/6 (8 September 2003).
See State response in HCJ 7784/02, Sa’el Awani Abd Al Hadi et. al. v. The Commander of the IDF Forces in the West Bank; also HCJ 9961/03 - HaMoked: Center for the Defense of the Individual v. The Government of Israel et al
• Declaration Concerning Closing an Area No. S/2/03 (Seam Zone) - 2 October 2003 (with attached map)
• General Permit to Enter the Seam Zone and to Stay in it - 2 October 2003
• Regulations Regarding Entry and Stay Permits to the Seam Zone - 7 October 2003
• Regulations Regarding Permit for Permanent Residents in the Seam Zone - 7 October 2003.
“In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance…..”
Regarding the enforcement of the Fourth Geneva Convention in domestic courts, an additional argument is raised, which stipulates the incorporation of the Fourth Geneva convention by an act of parliament given the claimed conventional nature of that convention.
“…The participating High Contracting Parties reaffirm the applicability of the Convention to the Occupied Palestinian Territory, including East Jerusalem and reiterate the need for full respect for the provisions of the said Convention in that Territory.”