The Court unanimously held that it had jurisdiction to pursue the mater and by a 14-1 majority held that the wall was contrary to international law; that Israel is under an obligation to terminate its breaches of international law and to cease construction of the wall. It also held by a 14-1 majority that Israel is under an obligation to make reparation for all damage caused by the construction of the wall and by a 13-2 majority 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 …” By a 14-1 majority the Court held that the U.N., 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.2
The International Court’s decision was greeted with dismay, anger, shock and frustration by Israel. A senior aide to Israel’s Prime Minister, Ranan Gissin, was quoted by the BBC as saying that the International Court’s advisory opinion will find its place in “the garbage can of history”.3
Certain sections of Israeli society, in particular the military, contested the applicability of international law to the “war on terror” and as Tanya Reinhart noted in an article she published in the Hebrew press “a battle is being waged in the world today over the status of international law”.4
Israel’s former Prime Minister, Binyamin Netanyahu, wrote in the New York Times that “Israel will never sacrifice Jewish life on the debased altar of ‘international justice’”.5 He said that the Court’s decision made a mockery of Israel's right to defend itself and avowed that his government would ignore it.
On Tuesday, 20 July, the General Assembly passed Resolution ES-10/L.18/Rev.1acknowledging the International Court’s Advisory Opinion and demanded that Israel comply with its legal obligations as identified in the opinion.This resolution was adopted by 150 states, including the 25 member EU bloc, with 6 against and 10 abstaining. The resolution can be reconvened at any moment in order for its implementation to be assessed.
It sets up a U.N. register of the damage caused to all natural and legal persons as well as inviting Switzerland to report on Israel’s compliance with the Fourth Geneva Convention of 1949. This resolution is very significant due to the size of the vote, the strong language used, and because it is based on an Advisory Opinion by the world’s highest judicial body. Israel vowed to press on with the construction of the wall despite the passing of this resolution.
It is common knowledge that an Advisory Opinion is non-binding. However this does not necessarily mean that Israel can afford to ignore it altogether. For the Court observed that the obligations violated by Israel include certain obligations erga omnes. These obligations are concerned with the enforcement of norms of international law a violation of which is deemed to be an offence against all members of the international community.
The Court had previously indicated in the Barcelona Traction case (1970) that these obligations are by their very nature the concern of all states which can be held to have a legal interest in their protection. The obligations erga omnes violated by Israel are the obligations to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law.
Already the Advisory Opinion is causing Israel problems. A request to the World Bank to upgrade Palestinian roads could be rejected because this would be contrary to the International Court’s Opinion which prohibits “aid or assistance” to Israel. In many respects current Israeli policies towards the Palestinians in the light of the Court’s Advisory Opinion bare the hallmarks of apartheid as Amira Hass noted in an article she published in Ha’aretz.6
Although prolonged military occupation in Palestine and apartheid in South Africa are two different systems of repression they nevertheless share certain similar characteristics. From 1949 to 1971, the case of South West Africa (now Namibia) engaged the Court’s attention. This resulted in four Advisory Opinions (1950, 1955, 1956 and 1971) and two Judgements (1962 and 1966). What was at issue in these Advisory Opinions and Judgements was the status of South West Africa - though at the heart of the matter was apartheid.
From 1949 to 1962 South Africa did its best to thwart the supervisory role assigned to the General Assembly and just like Israel it ignored the Court’s Advisory Opinion(s).7 But by the 1960s with many new African states now members of the U.N. - a new idea took root - to explore the possibility of contentious litigation through a binding Judgment from the International Court of Justice.
However South West Africa was not a State in the 1960s (Namibia did not attain independence until 1990) and it therefore had to rely on Ethiopia and Liberia to bring the case to court on its behalf. In 1966, “the white mans court” held that Ethiopia and Liberia were not entitled to receive judgement on the merits of the case since they had not “established any legal right or interest appertaining to them in the subject matter” of the claims.8
This Judgement came as a surprise to many and it is generally thought that were it not for the death of Judge Badawi, the illness of Judge Bustamante and the withdrawal of Judge Zafrullah Khan, the outcome might have been very different.
This raises an interesting question. What conclusion would the Court reach today were a similar case to reach its docket by an interested party - say Jordan? Failure by the Security Council to act might lead to gridlock and force the Palestinians down the same path as the Namibians in the 1960s to explore the possibility of contentious litigation. Article 42 of the International Law Commission’s Draft Articles on State Responsibility (2001) allow an injured State to invoke the responsibility of another State if the obligation breached is owed to that state, a group of States or to the international community as a whole.9
The International Court found that the obligations breached by Israel are obligations erga omnes which by their very definition are obligations owed to the international community. Failure by the Security Council to bring the illegal situation arising from the construction of the wall to and end may leave the Palestinians little choice but to pursue this option. Alternatively, the Palestinians could seek another Advisory Opinion from the Court and seek to further isolate Israel in the U.N.
In the last Advisory Opinion which would take place on the status of South West Africa (1971), the Court found that South Africa’s continued presence in Namibia was illegal and that it was obliged to withdraw its administration immediately from Namibia. All states were legally obliged to refrain from acts which might have implied recognition of the South Africa’s illegal occupation of Namibia.
The Prime Minister of South Africa who was at the time, Mr. B.J. Vorster, responded by attacking the integrity of the Court. He alleged that the Court’s opinion would not stand up to juridical analysis and that it had been “packed” for the proceedings.10
There are many similarities between Palestine and Namibia: both were formerly mandated territory, both cases were politically charged, and they both provoked a similar reaction from their occupiers. They also both touched upon the issue of self-determination, an issue that would also be addressed in the Court’s Advisory Opinion in Western Sahara (1973) and in its Judgement on East Timor (1995).
The difference this time around is that the Court went slightly further in its advisory opinion on the Wall (2004) by saying that it is for all states, while respecting the U.N. Charter and international law, “to see to it that any impediment, resulting from the construction of the wall, to the exercise of the Palestinian people of its right to self-determination is brought to an end.” Although the Court did not explicitly spell out what exactly it is the international community must do - it is clear that whatever the international community decides to do – it must bring to an end the illegal situation resulting from the construction of the wall.
The Court concluded by saying, “[i]llegal actions and unilateral decisions have been taken on all sides” which was a swipe at President George W. Bush’s and Prime Minister Ariel Sharon’s unilateral decision and exchange of letters in April to do away with all previous U.N. resolutions on the status of settlements in the West Bank and U.N. resolutions on the plight of the Palestinian refugees.11
In the Court’s view, the tragic situation brought about by the construction of the wall can only end “through implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973).” The Court went on to say that, “the “Roadmap” approved by Security Council resolution 1515 (2003) represents the most recent of 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.” It might be added that the operative paragraph of Security Council resolution 1515 refers to “an independent and viable Palestinian state.” It is difficult to see this coming to fruition if the present Israeli government is able to act with impunity.
Victor Kattan (LL.B Hons.) Brunel University, (LL.M) Leiden University, is currently a correspondent for Arab Media Watch and a member of its Advisory Committee. He is also an occasional contributor to the electronic intifada. He was a U.N. Development Program TOKTEN Consultant to BADIL from May to August 2003 and from November to February 2004. He attended the oral pleadings in The Hague which took place at the International Court of Justice on Monday 23 February.
1 See U.N.G.A. resolution ES-10/14 (A/ES-10/L.16), 8 December 2003.
2 The Advisory Opinion can be read in full along with the Separate Opinions of various Judges at the International Court of Justice’s web site at http://www.icj-cij.org/.
3“Parties Split on Barrier Ruling” BBC News, 9 July 2004.
4 Tanya Reinhart, “From the Hague to Mas’ha,” Yediot Aharonot, 15 July 2004 (Hebrew). This article can be viewed in English in the electronic intifada.
5 Binyamin Netanyahu, “It’s a fence, and there’s nothing illegal about it,” NYT, reprinted in the International Herald Tribune, 14 July 2004.
6 See Amira Hass, “Donating to Apartheid,” Ha’aretz, 8 September 2004.
7 For a brief overview see Michla Pomerance, “The ICJ and South West Africa (Namibia): A Retrospective Legal / Political Assessment,” 12 Leiden Journal of International Law (1999), at 425 – 436. Pomerance is Emilio von Hofmannsthal Professor of International Law at the Hebrew University of Jerusalem.
8 See Rosalyn Higgins, “The International Court and South West Africa,” 42 International Affairs (1966), at 573 – 599. Rosalyn Higgins is currently a Judge at the International Court of Justice and participated in the Advisory Opinion on the construction of a wall in Occupied Palestinian Territory.
9 See Ian Brownlie, Basic Documents in International Law. Oxford: Oxford University Press, 2002, at 300 - 310.
10 For Further reading see John Dugard, “Namibia (South West Africa): The Court’s Opinion, South Africa’s Response, and Prospects for the Future,” 11 Columbia Journal of Transnational Law (1972), at 14 – 49. John Dugard is currently Professor of International Law at Leiden University in the Netherlands and is U.N. Special Rapportuer for Human Rights in the Occupied Palestinian Territories.
11 See Victor Kattan, “George W. Bush, Ariel Sharon, ‘Unilateral Declarations’ and International Law,” Electronic Intifada, 28 April 2004.
For a summary of the ICJ advisory opinion see, “International Court Rules against Israel’s wall. 1. Findings 2. Recommendations 3. Jurisdiction of the Court,” BADIL Bulletin No. 20 (July 2004). For a complete version of the opinion visit the ICJ website: www.icj-cij.org.