Advisory opinion by International Court Justice. Israel (D) constructed a wall in occupied Palestinian territory and the United Nations (P) objected. Israel (D) constructed a wall in occupied Palestinian territory. The wall and its route impaired the freedom of the Palestinian population. The U.N. General Assembly (P) demanded that it stop and reverse the construction of the wall. The I.C.J. was asked to provide an advisory opinion on the matter. Palestine is not a state nor a member in the UN, so it wouldn’t be a contentious case, this is the only way the ICJ would work.
Does the construction of a wall by Israel (D), the occupying power, in the occupied Palestinian territory, violate international law, including the Fourth Geneva Convention of 1949, the Hague Convention, and relevant Security Council and General Assembly resolutions?
the construction of a wall by Israel, the occupying power, in the occupied Palestinian territory, violates intl. law, including the 4th Geneva convention of 1949, the Hague convention, and relevant security council and general assembly resolutions
Judge Buergenthal, the only dissenter in the matter, is a US. citizen. In addition, the United States was one of eight votes against asking the I.C.J. for an advis01y opinion. Ninety members voted in favor of the opinion, and 74 members abstained.
Yes. The construction of a wall by Israel (D), the occupying power, in the occupied Palestinian territory, violates international law, including the Fourth Geneva Convention of 1949, the Hague Convention, and relevant Security Council and General Assembly resolutions. The wall and the Israeli occupation impede the liberty of movement of the inhabitants of the occupied territory, with the exception of Israeli citizens, as guaranteed under Article 12 of the International Covenant on Civil and Political Rights. It also impedes access to work, health facilities, education, and adequate standard of living under the International Covenant on Economic, Social, and Cultural Rights and the United Nations Convention on the Rights of the Child. Finally, the wall changed the demography of the territory, because of the departure of some Palestinians, which violates Article 49 of the Fourth Geneva Convention. Construction of the wall also breaches Israel’s (D) obligations under the Fourth Geneva Convention and the Hague Convention because the route chosen for the wall infringes the rights of Palestinians in the occupied territory, which cannot be justified by military exigencies or the requirement of national security. The legal consequence of Israel’s (D) actions in the matter is that all states are under an obligation not to recognize the illegal situation resulting from the construction of the wall, and all the states party to the Fourth Geneva Convention are under an obligation to ensure compliance by Israel (D) with international humanitarian law. Finally, both Israel (D) and Palestine are under an obligation to observe the rules of international humanitarian law. Illegal action and unilateral decisions have been taken on all sides, and implementation of the relevant Security Council resolutions is the only way to end the hostile situation.
SEPARATE OPINION: (Higgins, J.) The International Court of Justice looked at only a part of a much larger conflict between the two states, and should have considered the bigger picture and spelled out what is required of both parties. Of paramount importance is the protection of civilians. In addition, the real impediment to Palestine’s ability to exercise its rights as a self-determined people is not the wall, but Israel’s (D) refusal to withdraw from Arab occupied territory and for Palestine to provide conditions to allow Israel (D) to feel secure in doing so. Further, while the wall seems to have resulted in a lessening of attacks on Israeli civilians, the necessity and proportionality for the route selected, balanced against the hardships for Palestinians, have not been explained.
DISSENT: (Buergenthal, J.) The construction of the wall raises important issues of humanitarian law, but the Court should have declined to issue an advisory opinion because the Court failed to address Israel’s (D) arguments that it was willing to provide compensation and services for Palestinian residents, and that the wall was intended to be a temporary structure. The Court’s conclusions are not convincing, because it failed to demonstrate adequately why it was not convinced that military exigencies and concern for security required Israel (D) to erect the wall along the chosen route.