THE DECISION OF
THE INTERNATIONAL COURT OF JUSTICE
THE COURT FINDS THAT THE CONSTRUCTION OF THE WALL IN
THE OCCUPIED PALESTINIAN TERRITORIES IS CONTRARY TO INTERNATIONAL
LAW.THE INTERNATIONAL COURT OF JUSTICE CALLS ON ISRAEL TO STOP THE
CONSTRUCTION AND TO DEMOLISH WHAT HAS BEEN ERECTED.THE PALESTINIANS REGARD THE DECISION AS BINDING AND SHARON REBUKES
THE RULING AND ISSUES HIS ORDERS TO CONTINUE BUILDING THE WALL.
The International Court of Justice has found Israel's West Bank
barrier illegal, and asks the Jewish state to dismantle the structure
and compensate Palestinians for confiscated land. The court, the highest judicial arm of the United Nations, delivered
the ruling in what was to be a long and complex legal opinion. The
15-member court's advisory opinions are nonbinding but bear moral
and historic weight, and they could serve as the basis for later
action by the U.N. General Assembly or Security Council. By a 14-1 vote the judges found the barrier, along its planned
route, "gravely infringes" on the rights of Palestinians
and cannot be justified by military needs or national security.
The lone dissenter was U.S. judge Thomas Buerghenthal. The court rejected Israel's argument that it had no jurisdiction
in the case. Nasser Al-Kidwa, the Palestinian observer to the United Nations,
said the ruling send "a powerful message to our people, the
Israeli people and the whole world that international law counts." The overwhelming vote against the barrier would contribute to
a peaceful settlement and coexistence, he told AP Television News. Al-Kidwa said the Palestinians will seek a General Assembly resolution
demanding that Israel dismantle the barrier. If the Israelis refuse,
it will seek Security Council enforcement, and risk a U.S. veto.
"An advisory opinion is important in itself. It alone should
be enough to make a difference" and force Israel to remove
the barrier, he told reporters.
The International Court of Justice ruled that the wall Israel
is building to seal off the West Bank violates international law,
and urged the United Nations to take action to halt its construction. The court dismissed Israel's arguments that the wall was essential
for its security, and said the infringement on Palestinians' ability
to move freely was unjustified by arguments of military necessity. The ruling was a rebuff not only to Israel but also to the United
States and several European nations, which had argued that the issue
should not be before the court. "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," said the
ruling, read by court president Shi Jiuyong of China.
The court also ordered Israel to pay reparations to Palestinians
harmed by the barrier and return land seized to construct it. "The court is of the view that 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," the judgment
said.
The judges were united in backing the decisions, by a vote of
14-1 for most paragraphs of the decision, with only the American
judge dissenting. The court also said all countries "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." In Washington, White House spokesman Scott McClellan denounced
the decision, saying the United States believed the dispute should
be resolved politically. "We've always said that is not the
appropriate forum to resolve what is a political issue," he
said.At the Palestinians' request, the UN General Assembly asked the
world court last December for its opinion on the legality of the
barrier a 685-km long complex of high concrete walls, razor-wire
fences, trenches and watch towers. About one-fourth has been completed,
much of it close to the pre-1967 border, but some dipping into the
West Bank. The court said the barrier was routed in a way that would
encompass 80 percent of the Israeli settlers in the West Bank, while
cutting off more than 230,000 Palestinians from their surrounding
areas.
Despite Israel's protests that the barrier was temporary and not
designed as a political boundary, the court said it could amount
to "de facto annexation" by creating new facts on the
ground. It said the building of the barrier "severely impedes the
exercise of the Palestinian people of its right to self-determination,
and therefore is a breach of Israel's obligation to the respect
of that right." The court's advisory opinions are nonbinding, but bear moral and
historic weight. In one brief reference, the court said the construction of the
barrier should be seen in the context of "the succession of
armed conflicts, acts of indiscriminate violence and repressive
measures" since 1947, when Israel declared itself a state.
At the outset of the 2 1/2-hour session, the court ruled it had
jurisdiction and dismissed Israel's objections that the UN General
Assembly acted irregularly in asking the court for an advisory opinion. It also rebuffed the argument that the court's interference could
disrupt Middle East peace efforts, and that the issue was political,
not legal. "A legal question also has political aspects,"
said the ruling. The court said it was aware of the political negotiations in particular
the US-sponsored road map but said it was not clear its legal opinion
would influence those efforts. The court dealt in passing with issues long at dispute between
Israel and the Arab states.
It determined that the lands captured
by Israel in the 1967 Middle East war are occupied territory, including
East Jerusalem. Israel has refused to recognize Jerusalem as occupied
since it was formally annexed by the Israeli Parliament shortly
after the war. While the General Assembly and Security Council had never recognized
Israel's claims, it was the first time Israel's status in the West
Bank was the subject of an international legal judgment. Predictably, the Palestinians welcomed the ruling while the Israelis
denounced it. Palestinian President Yasser Arafat: "This is an excellent
decision. We thank the court in The Hague. This is a victory for
the Palestinian people and for all the free peoples of the world." Israeli Finance Minister Benjamin Netanyahu: "What's going
to happen now? This is going to go to the UN General Assembly. They
can decide anything there. They can say that the Earth is flat.
It won't make it legal, it won't make it true and it won't make
it just." Raanan Gissin, senior adviser to Israeli Prime Minister Ariel
Sharon: "I believe that after all the rancor dies, this resolution
will find its place in the garbage can of history." Nabil Abu Rudeinah, senior adviser to Arafat: "The next step
is to approach the UN General Assembly and Security Council to adopt
resolutions that will isolate and punish Israel. As of today Israel
should be viewed as an outlaw state."
European Commission spokesman Jean-Christophe Filori: "...the
European Union continues to call on Israel to remove the barrier
from inside the occupied Palestinian territories, including in and
around East Jerusalem." Arab League Secretary-General Amr Moussa: "The message that
was very forcibly sent by the court is that upholding and respecting
international law should be the basis for strong international relations." GCC Secretary-General Abdulrahman Al-Attiyah: "The United
Nations must take the required measures to ensure implementation
of the court's ruling, which demands Israel's removal of the wall." Jordanian Foreign Minister Marwan Muasher: "The ICJ's ruling
represents a large legal, ethical and political weight which Israel
cannot ignore." Following is the ICJ ruling on the Wall 9 July 2004 Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory The Court finds that the construction by Israel of a wall in the
Occupied Palestinian Territory and its associated regime are contrary
to international law; it states the legal consequences arising from
that illegality THE HAGUE, 9 July 2004. The International Court of Justice (ICJ),
principal judicial organ of the United Nations, has today rendered
its Advisory Opinion in the case concerning the Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory
(request for advisory opinion). In its Opinion, the Court finds unanimously that it has jurisdiction
to give the advisory opinion requested by the United Nations General
Assembly and decides by fourteen votes to one to comply with that
request. The Court responds to the question as follows: "A. By fourteen votes to one, 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"; "B. By fourteen votes to one, 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"; "C. By fourteen votes to one, 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"; "D. By thirteen votes to two, 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"; "E. By fourteen votes to one, 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 regime, taking due account of the
present Advisory Opinion." Reasoning of the Court The Advisory Opinion is divided into three parts:
jurisdiction
and judicial propriety; legality of the construction by Israel of
a wall in the Occupied Palestinian Territory; legal consequences
of the breaches found. Jurisdiction of the Court and judicial propriety The Court states that when it is seised of a request for an advisory
opinion, it must first consider whether it has jurisdiction to give
that opinion. It finds that the General Assembly, which requested
the opinion by resolution ES10/14 of 8 December 2003, is authorized
to do so by Article 96, paragraph 1, of the Charter. The Court, as it has sometimes done in the past, then gives certain
indications as to the relationship between the question on which
the advisory opinion is requested and the activities of the General
Assembly. It finds that the General Assembly, in requesting an advisory
opinion from the Court, did not exceed its competence, as qualified
by Article 12, paragraph 1, of the Charter, which provides that,
while the Security Council is exercising its functions in respect
of any dispute or situation, the Assembly must not make any recommendation
with regard thereto unless the Security Council so requests. The Court further refers to the fact that the General Assembly
adopted resolution ES 10/14 during its Tenth Emergency Special Session,
convened pursuant to resolution 377A (V), which provides that if
the Security Council fails to exercise its primary responsibility
for the maintenance of international peace and security, the General
Assembly may consider the matter immediately with a view to making
recommendations to Member States. The Court finds that the conditions
laid down by that resolution were met when the Tenth Emergency Special
Session was convened; that was in particular true when the General
Assembly decided to request an opinion, as the Security Council
was at that time unable to adopt a resolution concerning the construction
of the wall as a result of the negative vote of a permanent member. The Court then rejects the argument that an opinion could not
be given in the present case on the ground that the question posed
in the request is not a legal one. Having established its jurisdiction, the Court considers the propriety
of giving the requested opinion. It recalls that the lack of consent
by a State to its contentious jurisdiction has no bearing on its
jurisdiction to give an advisory opinion. It adds that the giving
of an opinion would not have the effect, in the present case, of
circumventing the principle of consent to judicial settlement, given
that the question on which the General Assembly requested an opinion
is located in a much broader frame of reference than that of the
bilateral dispute between Israel and Palestine, and that it is of
direct concern to the United Nations. Nor does the Court accept
the contention that it should decline to give the advisory opinion
requested because its opinion could impede a political, negotiated
solution to the Israeli Palestinian conflict. It further finds it
has before it sufficient information and evidence to enable it to
give its opinion, and emphasizes that it is for the General Assembly
to assess the usefulness of that opinion. The Court concludes from
the foregoing that there is no compelling reason precluding it from
giving the requested opinion. Legality of the construction by Israel of a wall in the Occupied
Palestinian Territory. Before addressing the legal consequences of the construction of
the wall (the term which the General Assembly has chosen to use
and which is also used in the Opinion, since the other expressions
sometimes employed are no more accurate if understood in the physical
sense), the Court considers whether or not the construction of the
wall is contrary to international law. The Court determines the rules and principles of international
law which are relevant to the question posed by the General Assembly.
The Court begins by citing, with reference to Article 2, paragraph
4, of the United Nations Charter and to General Assembly resolution
2625 (XXV), the principles of the prohibition of the threat or use
of force and the illegality of any territorial acquisition by such
means, as reflected in customary international law. It further cites
the principle of self determination of peoples, as enshrined in
the Charter and reaffirmed by resolution 2625 (XXV). As regards
international humanitarian law, the Court refers to the provisions
of the Hague Regulation of 1907, which have become part of customary
law, as well as the Fourth Geneva Convention relative to the Protection
of Civilian Persons in Time of War of 1949, applicable in those
Palestinian territories which before the armed conflict of 1967
lay to the east of the 1949 Armistice demarcation line (or "Green
Line") and were occupied by Israel during that conflict. The
Court further notes that certain human rights instruments (International
Covenant on Civil and Political Rights, International Covenant on
Economic, Social and Cultural Rights and the United Nations Convention
on the Rights of the Child) are applicable in the Occupied Palestinian
Territory. The Court ascertains whether the construction of the wall has
violated the above mentioned rules and principles. It first observes
that the route of the wall as fixed by the Israeli Government includes
within the "Closed Area" (between the wall and the "Green
Line") some 80 percent of the settlers living in the Occupied
Palestinian Territory. Recalling that the Security Council described
Israel's policy of establishing settlements in that territory as
a "flagrant violation" of the Fourth Geneva Convention,
the Court finds that those settlements have been established in
breach of international law. It further considers certain fears
expressed to it that the route of the wall will prejudge the future
frontier between Israel and Palestine; it considers that the construction
of the wall and its associated regime "create a 'fait accompli'
on the ground that could well become permanent, in which case, .
. . [the construction of the wall] would be tantamount to de facto
annexation". The Court notes that the route chosen for the
wall gives expression in loco to the illegal measures taken by Israel,
and deplored by the Security Council, with regard to Jerusalem and
the settlements, and that it entails further alterations to the
demographic composition of the Occupied Palestinian Territory. It
finds that the "construction [of the wall], along with measures
taken previously, . . . severely impedes the exercise by the Palestinian
people of its right to self determination, and is therefore a breach
of Israel's obligation to respect that right". The Court then considers the information furnished to it regarding
the impact of the construction of the wall on the daily life of
the inhabitants of the Occupied Palestinian Territory (destruction
or requisition of private property, restrictions on freedom of movement,
confiscation of agricultural land, cutting off of access to primary
water sources, etc.). It finds that the construction of the wall
and its associated régime are contrary to the relevant provisions
of the Hague Regulations of 1907 and of the Fourth Geneva Convention;
that they impede the liberty of movement of the inhabitants of the
territory as guaranteed by the International Covenant on Civil and
Political Rights; and that they also impede the exercise by the
persons concerned of the right to work, to health, to education
and to an adequate standard of living as proclaimed in the International
Covenant on Economic, Social and Cultural Rights and in the Convention
on the Rights of the Child. Lastly, the Court finds that this construction
and its associated regime, coupled with the establishment of settlements,
are tending to alter the demographic composition of the Occupied
Palestinian Territory and thereby contravene the Fourth Geneva Convention
and the relevant Security Council resolutions. The Court observes that certain humanitarian law and human rights
instruments include qualifying clauses or provisions for derogation
which may be invoked by States parties, inter alia where military
exigencies or the needs of national security or public order so
require. It states that it is not convinced that the specific course
Israel has chosen for the wall was necessary to attain its security
objectives and, holding that none of such clauses are applicable,
finds that the construction of the wall constitutes "breaches
by Israel of various of its obligations under the applicable international
humanitarian law and human rights instruments". In conclusion, the Court considers that Israel cannot rely on
a right of self defence or on a state of necessity in order to preclude
the wrongfulness of the construction of the wall. The Court accordingly
finds that the construction of the wall and its associated regime
are contrary to international law. Legal consequences of the violations found The Court draws a distinction between the legal consequences of
these violations for Israel and those for other States. In regard to the former, the Court finds that Israel must respect
the right of the Palestinian people to self determination and its
obligations under humanitarian law and human rights law. Israel
must also put an end to the violation of its international obligations
flowing from the construction of the wall in the Occupied Palestinian
Territory and must accordingly cease forthwith the works of construction
of the wall, dismantle forthwith those parts of that structure situated
within the Occupied Palestinian Territory and forthwith repeal or
render ineffective all legislative and regulatory acts adopted with
a view to construction of the wall and establishment of its associated
regime, except in so far as such acts may continue to be relevant
for compliance by Israel with its obligations in regard to reparation.
Israel must further make reparation for all damage suffered by all
natural or legal persons affected by the wall's construction. As regards the legal consequences for other States, the Court
finds 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. The Court further finds that it is for all
States, while respecting the United Nations Charter and international
law, to see to it that any impediment, resulting from the construction
of the wall, in the exercise by the Palestinian people of its right
to self determination is brought to an end. In addition, all States
parties to the Fourth Geneva Convention are under an obligation,
while respecting the Charter and international law, to ensure compliance
by Israel with international humanitarian law as embodied in that
Convention. Finally, the Court is of the view that 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
its associated regime, taking due account of the present Advisory
Opinion. The Court concludes by stating that the construction of the wall
must be placed in a more general context. In this regard, the Court
notes that Israel and Palestine are "under an obligation scrupulously
to observe the rules of international humanitarian law". In
the Court's view, the tragic situation in the region can be brought
to an end only through implementation in good faith of all relevant
Security Council resolutions. The Court further draws the attention
of the General Assembly to the "need for . . . efforts to be
encouraged with a view to achieving as soon as possible, on the
basis of international law, a negotiated solution to the outstanding
problems and the establishment of a Palestinian State, existing
side by side with Israel and its other neighbours, with peace and
security for all in the region".
Calling it a "slap in the face" in the global fight
against terrorism, Israeli Prime Minister Arial Sharon denounced
the ruling by the International Court of Justice (ICJ) calling for
the dismantling of Israel's security wall. In its 14 to 1 decision,
the court also called on Israel to pay compensation to all those
affected by its construction. Following the ruling, Sharon opened a meeting with his cabinet
by rebuking the court's decision. "I want to make it clear: The State of Israel completely
rejects the ICJ's opinion. This is a one-sided opinion based solely
on political considerations," said Sharon. "The opinion
completely ignores the reason for the construction of the security
fence - murderous Palestinian terrorism." Sharon said that work on the security barrier would continue,
and he called on all the nations in the global war on terror to
reject the ICJ ruling, adding that he hoped "this immoral decision
will disappear from the world." Israeli Attorney General Menachem Mazuz has decided to set up
a team of experts to examine the International Court of Justice's
recent ruling on Israeli separation fence, Ha'aretz reported. Mazuz made the decision last Sunday following the International
Court of Justice (ICJ) ruled last Friday that the Israeli separation
fence is illegal and must be dismantled, and compensations must
be paid to the Palestinians whose properties were confiscated for
its construction. Israeli Prime Minister Ariel Sharon said that the building work
on the fence will proceed in line with last month's ruling by the
Israeli High Court of Justice. Sharon instructed the Finance Ministry to ensure that the costs
for building the fence were included in the 2005 state budget. Prime Minister Ariel Sharon last Sunday lambasted the U.N. world
court's finding that Israel's West Bank separation barrier is illegal,
shortly after a bombing at a Tel Aviv bus stop killed an Israeli
woman. Palestinian fighters took responsibility for Sunday's attack,
their first successful strike in Israel in nearly four months. Opening the weekly meeting of the Israeli Cabinet, Sharon said
the International Court of Justice's ruling was one-sided and "encourages
the terror" against Israel. The court, based in the Hague, Netherlands, ruled that the barrier
violates international law. Israel has completed about one-fourth
of the planned 425-mile (685-kilometer) structure. The United States said last Friday the peace process could be
impeded by an international court decision calling Israel's security
wall illegal. State Department spokesman Richard Boucher said the ruling could
distract from the ongoing political process to find a negotiated
solution to the Israeli-Palestinian conflict. "It remains our view that this referral to the court was
inappropriate and that in fact it could impede efforts to achieve
progress towards a negotiated settlement between Israelis and Palestinians,"
Boucher said. "We don't need to be creating other things that can be distracting
or that can take people's attention away from the matter at hand,"
he said. The United States has expressed reservations about the fence,
but opposed the decision by the U.N. General Assembly to refer the
matter to the court in The Hague for a non-binding opinion. Richard Boucher, said during a press briefing that officials are
still reviewing the decision. But he also said officials opposed
sending the case to the ICJ. "The way to resolve the issues
between Israelis and Palestinians, the way to create a Palestinian
state, is through the political process, through the roadmap process.
And that's where the United States has placed and continues to place
its emphasis," according to Boucher. Boucher said the Israeli Supreme Court already has ruled the government
must change the wall's configuration. He also said the fence must
not affect the Palestinian population. The advisory opinion from the International Court of Justice (ICJ)
on the legality of the Israeli wall is the beginning of the end
for the barrier, according to the League of Arab States leader Yahya
Mahmassani. The decision showed the "credibility and the impartiality
of the court," he said. "I think that this decision calls
on Israel to destroy this wall." Secretary-General Kofi Annan has received the judgment, and has
passed it on to the General Assembly to discuss, according to his
spokesman. Annan refrained from making a statement on the ruling.
The General
Assembly has scheduled a tentative emergency conference for next
week to debate the ruling. "We will see how discussion will
go at the General Assembly," said Mahmassani. "It will
be in line with the court decisionthis wall is illegitimate."
Although the issue of imposing sanctions against Israel has been
raised, the General Assembly does not have the power to impose sanctions,
only recommend them. Mahmassani added that Israel was protected
in the Security Council, where sanctions could be imposed, but he
did not think this probable. UN Secretary General Kofi Annan called last Sunday for the necessity
that Israel accepts the international Court of Justice (ICJ) advisory
opinion about the illegality of the Apartheid Wall. Minutes before the inauguration of a Global Conference against
the AIDS in Bankok, Annan told reporters that "I think the
ICJ Decision is very obvious". "Any measures Israel takes have to comply with the international
law, as Israel has to respect the interests of the Palestinian people",
Annan added. He concluded his speech saying "the ICJ report has to be
submitted to the UN General Assembly. I am not about to give a judge
in advance". The Vatican reiterated Sunday that the international Court of
Justice ICJ advisory opinion about the illegality of the Apartheid
Wall "is of a political weight as it has been demanded by the
UN".
The official spokesman for the Vatican, Joaquin Navarro-Valls,
told reporters that "such a decision is of a weight and now
let us see what the global governments would do". Egypt's foreign minister-designate returned to Cairo to take up
his appointment and promptly hailed the World Court's finding that
Israel should dismantle the barrier it is building in the West Bank. "The ruling is a great victory and the strongest decision
in favor of the Palestinian question because it was based on international
legitimacy and international law," Ahmed Aboul Gheit told reporters
at Cairo airport. The European Union (EU) urged the United Nations General Assembly
to take actions based on the ICJ's verdict. "It will now be up to the General Assembly to decide how
to act upon the Court's Advice," said Dutch Foreign Minister
Ben Bot in his capacity as the President of the EU Council.
The ICJ's advisory opinion would "need to be studied carefully,"
said Bot in a written statement, adding that the EU foreign ministers'
meeting due on Monday is expected to discuss the ICJ's verdict. Claiming the ruling as "unbinding," Israeli UN Ambassador
Dan Gillerman echoed his government's opinion and accused the court
offailing to recognize that the barrier had reduced terrorist attacks
against Israelis . ``We believe this is a very dark day for the International Court
of Justice,'' Dan Gillerman, Israel's ambassador to the UN, told
reporters in New York. ``We feel the court was taken for a ride
and literally abused by the forces of evil.'' Palestinian attacks on Israelis have decreased by 90 percent since
construction of the barrier began, and Israeli deaths due to suicide
bombings have decreased by 70 percent, Gillerman said. He said the
barrier would be removed as soon as a negotiated settlement of the
West Bank and Gaza is reached. ``This is an historic day and an historic decision that has been
delivered by the world's highest legal authority,'' Palestinian
Authority Prime Minister Ahmed Qureia told reporters in the West
Bank as the international court opinion was being read, according
to Agence France-Presse. ``This fence is a legitimate response by a sovereign nation, a
democratic nation, to protect its citizens. It is clear to me that
this fence saves lives,'' U.S. Senator Hillary Clinton, Democrat
of New York, said in a speech near the UN. The court ruling is ``not
to be accepted by people who understand the legitimate needs of
democratic nations to defend themselves.''
