Tear Down That Wall, Mr. Sharon

The International Court of Justice’s advisory opinion on the legal consequences of the Israeli Wall in the Occupied Territories is a triumphant vindication of the Palestinian decision to get their case heard there, and of their long term strategy of underlining and restating their legal rights. In effect, the Court ruled against Israel and its patron, the U.S., on every point. It appears that even the Arab states and the Palestinians may not have been entirely prepared for such an unqualified victory.

The Court’s statement issued on July 9 was in response to the U.N. General Assembly’s request for its opinion on the Wall. It is interesting that most of the American media reports before and after the opinion sought to qualify the Court’s opinion as “non-binding,” and said that the U.S. and the EU opposed the decision to refer the question to them.

Few took time out to record that most EU states went on the record as saying that they themselves considered the Wall illegal, and abstained for fear that it would disrupt the “Road Map” although they failed to explain how it could disrupt an already well macerated document. If the EU, in particular, does not welcome a Palestinian resort to the law and the courts rather than armed resistance, they really have to think through the logic of their positions!

Of course, an authoritative statement of international law, issued by a 14-1 majority (American Judge Thomas Buergenthal followed the national line) is non-binding only if you do not accept the applicability of international law. Buergenthal said the opinion did not take into account Israel’s need to protect itself against terrorism. This is, of course, complete nonsense. The Court considered this issue in some depth and length in its 56 page opinion—and concluded that if Israel wanted to build the wall on its side of the Green Line, it could do so entirely legally. However, it could not do so on illegally occupied territory.

In the sense that the Court did not award damages, and does not have bailiffs or police to enforce its decisions, its opinion may not be binding. But in the larger sense, the Court has definitively ruled that Israel is breaking international law, and that the states that subscribe to the various charters, conventions and treaties that constitute the law have a duty to enforce it. You could not get a more binding decision, not least since this opinion is being delivered to the General Assembly of the United Nations—with part of the opinion being that states party to the various conventions have a duty to enforce them on Israel!

It is worth remembering that even though the process is slow, it was such ICJ rulings that led to independence for Namibia and East Timor, so, just as the Israelis fear, there may well be tangible consequences when this decision is reported back to the United Nations.

The Opinion

The Court first of all decided that it did indeed, despite the U.S. and the Israeli positions, have the right to consider the question, and that the U.N. General Assembly indeed had the right to ask it to. And in this, as in all its other issues, it cited numerous precedents for its reasoning.

Then the Judges voted by 14 to one, with Judge Buergenthal dissenting in each case, that:

  • “The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law.
  • Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion.”
  • “Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.”
  • “The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.”
  • In a very important clause, Buergenthal was joined by the Dutch judge in his dissent (still passing 13-2) when the court found that:

  • “All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.”
  • Of Walls and Laws

    To the quiet delight of the Palestinians, the court had already allowed Palestine as an entity all the privileges of a state in representation to the Court and refers to it throughout on a par with Israel as a party to the proceedings. It had then further gladdened their hearts by vindicating the Palestinian position as opposed to U.S. and Israeli attempts to relegate the conflict to a bilateral issue, “given the powers and responsibilities of the United Nations in questions relating to international peace and security,” so the Wall was of direct concern to the organization.

    And while it welcomed the “Road Map” and negotiation for a settlement, it qualified that such negotiations as “On the Basis of International Law,” which is the contingency that the Americans and Israelis have been trying to avoid, and that the Palestinians have been trying to invoke, ever since Oslo.

    While it noted that Israel was not a party to the Hague Convention of 1907—it stated that the Nuremburg Tribunals had declared that the convention was now customary international law—a finding which it would be embarrassing for either the U.S. as an instigator of the Tribunals or Israel as self-appointed avenger against the Nazis, to gainsay.

    Interestingly it also finds that the International Covenant on Civil and Political Rights applies to all people that a state has jurisdiction over, which means that they apply to the territories—and incidentally would also apply to the U.S. in places like Guantanamo Bay, although the Court does not wander that far. It also affirmed the applicability of other conventions that the Israelis have signed to people in the territories.

    As a coup de grace, the Court notes that the Wall’s route has been drawn to include over 80% of the settlements—and it considers the settlements illegal, a violation of the Fourth Geneva Convention, not just “unhelpful” as the Clinton reformulation of the American position has it.

    Uniting for Peace

    In a further blow to the expedient American position that decries the “Uniting For Peace Resolution” which allows issues stalled by vetoes in the Security Council to be dealt with by the General Assembly, the Court ruled that the Assembly was entitled to do so—and obligingly cited precedents from the time that the U.S. and others had pioneered the procedure.

    The Palestinians had of course used this just procedure in the face of yet another American veto in the Security Council to ask for the opinion from the ICJ. If the U.S. had abstained and let the resolution through, then Israel would have been given a token admonishment by the Security Council. As it is, the ICJ opinion requested by the Special General Assembly may well pave the way to eventual sanctions.

    After all, how can democratic governments outside the U.S., particularly the EU, explain away to their people their failure to “ensure compliance by Israel with international humanitarian law,” when told by the world’s highest court that they have an obligation to do so?

    The next step is for the reconvening of the Special General Assembly, probably on July 15-16 to receive the report.

    At this stage, it seems likely that the resolution to be proposed, and almost certainly passed, will ask UN Secretary-General Kofi Annan to report back on measures taken by Israel to comply with the Court’s opinion. This should be a short report, since Sharon’s government, even though its own Supreme Court has gone a long way to agreeing with some aspects of the ICJ’s decision, has declared in advance that it would not accept the Court’s authority. It did so on the eminently logical grounds that its own legal advisors had told it that the Wall breached international law!

    This brings the focus on the Court’s reminder to states that they have a duty to apply international law when it is flouted. The resolution will certainly strengthen pressure inside the EU to take a stronger line against Israel’s behavior, and the EU is a far bigger trading and commercial partner for Israel than the U.S., and could potentially bring some serious leverage.

    The nightmare for Israel is of course South African-style sanctions, both state-imposed and consumer boycotts. But the answer is simple, and mandated by the Court. “Mr. Sharon, tear down this Wall!”

    Ian Williams contributes frequently to Foreign Policy In Focus (online at www.fpif.org) on UN and international affairs.