Legal consequences of the construction of a wall in the Occupied Palestinian Territory

Summary of the advisory opinion of 9th July 2004 by the International Court of Justice.

Full information of the case can be found here: http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=5a&case=131&code=mwp&p3=5

Background:

  • On the 10th December 2003 the Secretary-General of the United Nations communicated to the International Court of Justice (“the Court”) the decision taken by the United Nations General Assembly on resolution ES-10/14 adopted on 8th December 2003 the request for an advisory opinion.

Case:

  • The advisory opinion was 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?”

Judgment:

  • There were seven judgments of this question:
  • 1. The Court unanimously found that it had jurisdiction to give an advisory opinion as requested.
  • 2. By 14 votes to 1, the Court decides to comply with the request for an advisory opinion.
  • 3. By 14 votes to 1, the Court judged that the construction of the wall built by Israel in the Occupied Palestinian Territory, including in and around East Jerusalem, are contrary to international law.
  • 4. By 14 votes to 1, the Court judged that Israel is under obligation to terminate its breaches of international law. Israel is under obligation to cease the works of construction of the wall in the Occupied Palestinian Territory. Israel is under obligation to dismantle forthwith the structure therein situated. Israel is under obligation to repeal or render ineffective all legislation and regulatory acts relating thereto.
  • 5. By 14 votes to 1, 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.
  • 6. By 13 votes to 2, all states are under an obligation not to recognise the illegal situation resulting from the construction of the wall and not to render any assistance or aid in maintaining the situation. All states parties to the Fourth Geneva Convention (protection of civilian persons in time of war) are under additional obligation to ensure compliance by Israel with international humanitarian law as embodied in the Convention.
  • 7. By 14 votes to 1, the Court judged that the United Nations, and in particular the United Nations General Assembly and Security Council, should consider what further action is required to bring an end to the illegal situation resulting from the construction of the wall.  

Further reading:

  • In explanation to judgment 1, the Court found it possesses jurisdiction to give an advisory opinion from Article 65 of the Statute of the Court in which it states the Court “may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request” and secondly from the UN charter Article 96 Paragraph 1 “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.”
  • In explanation to judgment 2, giving an advisory opinion has been contested due to the wording of the Statute of the Court, stating: “The Court may give an advisory opinion…” which means that the Court retains at its discretion a power to decline to give an advisory opinion. Given that Article 92 of the United Nations Charter states that “The International Court of Justice is the principal judicial organ of the United Nations”, the Court should in principle not decline to give an advisory opinion, unless there are “compelling reasons” not to do so.
  • In explanation to judgment 3, judging that Israel’s construction of the wall being contrary to international law looks at rules and principles of international law. Article 2, Chapter 4 of the United Nations Charter states “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” United Nations General Assembly resolution 2625 entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States” emphasises that “No territorial acquisition resulting from the threat or use of force shall be recognised as legal.”
  • The Court noted that Israel has given assurances that the construction of the wall does not amount annexation and that the wall is a temporary measure to enable it to effectively combat terrorist attacks launched from the West Bank. The Court nevertheless considers the construction of the wall creates a “fait accompli” on the ground that it could become permanent. This would be tantamount to de facto annexation.
  • In explanation to judgment 4, Israel has an obligation to cease the works of construction of the wall built in the Occupied Palestinian Territory. Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination, and its obligations under international humanitarian law and international human rights law.
  • In explanation to judgment 5, the Court found that Israel is under obligation to make reparation for the damage caused to all the natural or legal persons concerned. The established jurisprudence states: “The essential principle contained in the actual notion of an illegal act…is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.” This means Israel is under obligation to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for the purposes of construction of the wall in the Occupied Palestinian Territory. In the event that this restitution is materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered.
  • In explanation to judgment 6, that all states are under obligation not to recognise the illegal situation resulting of the construction of the wall, the Court states the obligations erga omnes violated by Israel are in respect to the right of the Palestinian people to self-determination and certain obligations under international humanitarian law. In regards to self-determination, the Court recalls its findings in the East Timor case and United Nations General Assembly resolution 2625.