A month after the ICJ issued its ground-breaking opinion, the UN General Assembly adopted Resolution ES-10/15 (2 August 2004). The Resolution included a directive to the UN Secretary-General to set up “a register of damage caused to all the natural and legal persons concerned in connection with [the ICJ] advisory opinion.” In early 2005 UN Secretary-General KofiAnnanforwardedalettertotheGeneralAssembly setting out a framework and the next moves for the creation of such a register.

According to the letter sent to the General Assembly, the proposed registry “is not a compensation commission or claims-resolution facility, nor is it a judicial or quasi-judicial body.” (UN Doc. A/ES-10/294, 13 January 2005). The statement appears to respond to the concerns of Palestinian landowners that the primary emphasis would be compensation rather than restitution. Nevertheless, evaluation of property damages would be useful for future claims regardless of whether a landowner repossesses his property.

The Secretary-General’s letter, rather describes the proposed registry as a technical, fact-finding process of listing or recording the fact and type of the damage caused as a result of the construction of the Wall. “It thus entails a detailed submission process that would include a statement setting out the alleged damage, eligibility for registration and the causality between the construction of the wall and the damage sustained.”

The registry is supposed to be a subsidiary organ of the UN operating under the authority of the Secretary-General consisting of: (a) a Board, whose members are appointed by the Secretary-General in their personal capacity, and who shall be independent; (b) legal and technical experts in land and agriculture and in such other fieldsasmaybenecessary,appointedbytheBoard;and(c)asmallsecretariat consisting of administrative and technical support staff.

The Board will be responsible for establishing the rules and regulations governing the work of the registry, and for its establishment and maintenance. It will establish eligibility criteria, categories of damage and the process of registration. On the recommendation of the experts, the Board will have the ultimate authority in determining the inclusion of damage in the register.

Under the authority of the Board, the experts will consider submissions for inclusion in the register and deal with any other question entrusted to them by the Board. They will also be empowered to recommend the inclusion of damage in the register. The secretariat will service the members of the Board and the experts. It will be responsible for the administration of the registry and the compilation of the database.

As a subsidiary organ of the United Nations the registry will be financed through assessed contributions. The registry is supposed to remain active for the duration of the process of registration. With the completion of the registration process, the registry will be dissolved. The register of damage will remain open for registration for the duration of the Wall in the occupied West Bank, including eastern Jerusalem.

In devising the process of registration, eligibility criteria and categories of damage, the Board will be guided by the relevant findingsoftheICJadvisoryopinion,generalprinciplesoflawand,totheextentof their relevancy, principles of due process of law. The registry will be publicly available.

Both natural and legal persons who have sustained any form of material damage as a result of the construction of the Wall are eligible to request the inclusion of damage in the registry. In accordance with the advisory opinion, the damage must be material damage, and a causal link will have to be established between the construction of the Wall and the damage sustained.

The types of damage eligible for registration will include: destruction and requisition of properties, seizure or confiscation of land, destruction of orchards, citrus groves, olive groves and wells and the seizure of other immovable property. Material damage sustained as a result of the construction of the Wall will not be limited to lands and crops, but will also include impeded access to means of subsistence, urban centres, work place, health services, educational establishments and primary source of water in areas between the green line and the Wall itself.

The categories of such material damage and their eligibility for registration will be elaborated in greater detail by the members of the Board. A decision when and if it would be appropriate to engage in a process of verifying the fact and extent of the damage will be taken at a subsequent stage.

More than a year after the General Assembly requested the Secretary-General to establish the registry, there is no registry. Israel continues to confiscate Palestinian land and has ordered authorities to speed up construction of the remaining sections of the Wall. Speaking at a special meeting on the Wall in his office, Ariel Sharon instructed officials responsible for the Wall’s construction to “improve the pace”. (Aluf Benn, “PM orders acceleration in work on West Bank Barrier,” Ha’aretz, 6 July 2005)

Moreover, in September Israel’s Supreme Court ruled, contrary to the ICJ advisory opinion, that Israel has a right to build the Wall in the West Bank under international humanitarian law. The three tests set out by the Supreme Court include: that it is necessary to protect the Israeli population, including the settlers in the West Bank, that it must not cause disproportionate harm to the civilian Palestinian population, and, that the necessity of its construction is immediate.

Since the UN Secretary-General sent his initial proposal to the General Assembly at the beginning of this year there have been no further developments. “This process ... appears to have been lost in the bureaucracy of the United Nations,” says John Dugard, the UN Special Rapporteur on human rights in the OPTs. “This is unfortunate because the International Court of Justice clearly attached great importance to Israel’s obligation to pay compensation for the destruction of homes, orchards, olive groves and agricultural land caused by the construction of the wall.” (UN Doc. A/60/271, 18 August 2005)

It appears that the process may have stalled due to Israeli objections and lack of international donor support to establish the registry. According to Annan’s letter to the General Assembly, the establishment and operation of the registry will require Israeli cooperation in facilitating its operations, including granting the members and experts access to documentary materials, to any governmental or municipal authority, organization or institution, or any other person whose information can assist the Board in the submission process.

The newly adopted Principles on Housing and Property Restitution for Refugees and Displaced Persons call upon states to “provide all relevant agencies with adequate financial,humanandotherresourcesto successfully complete their work in a just and timely manner.” The proposed registry will provide a documentary basis for future claims for restitution and compensation for damages. Serious international intervention, including a strong grassroots campaign, however, will be required to press Israel to comply with the ICJ advisory opinion and cooperation in the establishment and work of the registry.

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