A deep division between what the law requires and what political reality has made of it remains.
Both the enthusiasm and opprobrium that followed the 2004 International Court of Justice’s (ICJ) Advisory Opinion on the Wall seem, thirteen years later, to have been unwarranted and overblown. A deep division between what the law requires and what political reality has made of it remains. For those who believe the Advisory Opinion was a positive game-changer, cautious optimism is in order, and for those who attack it as a misguided challenge to Israel’s right to self-defense, it is worth reminding them that the opinion remains on solid legal ground though it has done very little to curb Israel’s annexation project.
THE FINDINGS OF THE ICJ
The ICJ issued five main legal conclusions: i) that the construction of the Wall in the Occupied Palestinian Territory and its associated regime violate Israeli obligations under international law; ii) that Israel must cease further construction, re-route or remove the completed sections from within the West Bank, and completely terminate the permit regime associated with it; iii) that Israel must restore all Palestinian properties confiscated for the Wall construction and pay damages for all losses; iv) that all states must ensure compliance with humanitarian law by not recognizing the wall regime and by ceasing any aid to Israel that supports it; and finally, v) that all states and the UN must take action to terminate the illegal situation arising from the construction of the Wall.
In finding that the construction of the Wall inside the West Bank and East Jerusalem is unlawful, the Court put to rest several of Israel’s main longstanding claims. Contrary to Israel’s official position, the Court found that the West Bank and East Jerusalem are occupied and not ‘disputed’ territory, and that Israeli conduct in these areas is bound by the Fourth Geneva Convention. The Court also found that self-defense was inapplicable to Israel as the occupier of the territory, and in any event could not justify constructing a wall within the land it is occupying. The Court further concluded that because the route of the Wall and the intent of constructing it was to protect Israel’s settlers, whose transfer to settlements is prohibited, the Wall was illegal because the settlements themselves were illegal. The Court went on to state that “the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to the settlements,” and was a severe impediment to Palestinian right to self-determination. Since the settlements are unlawful and prevented Palestinian self-determination, the Court also found that these violations triggered obligations on the entire community of states not to assist Israel in the continuation of the Wall regime, and required states to bring an end to it.
SUBSEQUENT LEGAL DEVELOPMENTS
A series of developments immediately preceding and following the ICJ decision have had far-reaching consequences.
The first was the results of litigation within Israel itself. In response to the Wall construction, Palestinian petitioners and human rights organizations filed legal challenges that came before the Israeli Supreme Court in the case of Beit Sourik Village Council vs. Israel, which was decided only nine days before the ICJ opinion on the Wall. Though the Israeli Supreme Court arrived at a similar conclusion in this case, namely that Israel has obligations under humanitarian law as a belligerent occupier, it did so in a radically different manner from the ICJ.
In fact, the Israeli Supreme Court determined that Israel was justified in constructing the Wall, even within the territory it occupies, as a security measure. It took at face value the Israeli position that the Wall was to prevent Palestinian terrorists entering Israel, and was justified to protect Israeli settlers. The Court also accepted the Government’s position that the Wall was a temporary measure, and that Israel’s only obligations are to apply certain ‘humanitarian principles’ to its occupation. Since the Wall was a temporary measure and justified for the occupier’s security, the Court in Beit Sourik only required Israel to re-route certain segments of the Wall—approximately 25 km.
The extreme irony of the Court’s reading of Israeli obligations in this case is that it found that the security justification was strong because the Wall was not erected on the 1967 border. If it had been, then the reasons would have been political and unjustified. The Israeli Supreme Court in Beit Sourik, although supposedly resting on the same body of laws, came to drastically different conclusions than the ICJ in the Advisory Opinion. Predictably, the Israeli government committed to following its own Court and not the ICJ.
Since Beit Sourik, litigation challenging the Wall, its route, legality and impact, has continued in the Israeli courts. Beit Sourik followed thousands of petitions by Palestinians concerning deportations, house demolitions, land expropriation and other issues related to the establishment and expansion of Israeli settlements. In the vast majority of these cases the Israeli Supreme Court has ruled in favor of the government’s actions, and gradually distanced itself from the ICJ opinion. In Mara’abe, the Israeli Supreme Court addressed the Wall’s route around the Alfei Menashe settlement. While it reaffirmed its decision in Beit Sourik, the Court also explicitly stated that the ICJ was incorrect, and that it was not bound by the Advisory Opinion.
Other legal developments are the subsequent actions in the United Nations (UN) related to the Advisory Opinion. The UN General Assembly voted by an overwhelming majority on 20 July 2004 to accept the ICJ Opinion, demanding that Israel comply with the legal obligations spelled out in the decision, and calling on all UN members to act in accordance with the legal requirements of the Opinion. In January 2005 the Secretary-General announced the establishment of a Registry of Damage to record claims of property and other material losses by Palestinians from the Wall construction. In 2008, the UN issued one of several comprehensive reports on the humanitarian impact of the Wall that detailed the massive and ongoing harm to Palestinians. The UN Registry has been very slow to get off the ground; its members were not appointed until 2007, and it finally issued its rules and first report in 2009. Despite its findings on the legitimacy of thousands of Palestinian claims, the Registry has no authority to compensate the victims, and has been heavily criticized by Palestinian rights organizations.
Three years later, the UNGA recognized Palestine as a ‘non-member Observer State’ in November, 2012, by a vote of 138-9-41. As of this writing, 137 states have given bilateral recognition to the State of Palestine. In 2016, in its first Resolution on the conflict since 2009, the UN Security Council adopted Resolution 2334 by 14-0 vote with the abstention of the U.S. The resolution explicitly cites the Advisory Opinion, reaffirming that Israeli settlements are illegal, and that Israel must fully comply with the Fourth Geneva Convention. The Resolution then “[c]alls upon all States….to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.” The Resolution repeatedly refers to the occupied ‘Palestinian territory’ as a single entity, not the ‘Palestinian territories,’ recognizing the legal consensus towards Palestine as a state.
Following the statehood vote, Palestine sought to become a party to a number of treaties, including the Rome Statute, and to accept the jurisdiction of the International Criminal Court (ICC). In 2015, the Office of the ICC Prosecutor announced that it recognized Palestine as a state for purposes of Palestine’s accession to the Treaty and for the Court’s jurisdiction. Palestine has requested that the ICC bring prosecutions against Israeli defendants, including with regard to Israeli settlements. Since Israel is a party to Fourth Geneva Convention, but not to the Rome Statute which criminalizes settler activity, there are a number of difficult questions pending before the ICC Prosecutor. The ICJ Opinion, as the findings and conclusions of the highest court in the world, will be instructive, if not binding, on many of the legal questions underlying the ICC’s decision to prosecute for settlement activities, including the Wall construction.
SUBSEQUENT POLITICAL DEVELOPMENTS IN ISRAEL
The political impact of the Advisory Opinion within Israel has been little to none as its colonization and settlement project in the West Bank continues unchecked. The Wall is both a physical reality and a metaphor for the apartheid regime that Israel has established in the West Bank. Aside from the ongoing litigation in Israel that has been unsuccessful in significantly challenging the Wall—except in forcing minor changes to the Wall’s route—Israel has introduced legislative and other measures that underscore how essential the Wall is to expanding its settlement project.
Three recent bills reflect the Israeli government motivation of annexing the West Bank. Together, they authorize the application of Israeli law to settlers, legalize the incorporation of privately-owned Palestinian land into Israeli settlements, and apply Israeli law to the largest Israeli settlement of Ma’ale Adumim as well as to the nearby land reserves of Palestinian East Jerusalem.
Far from being dismantled, as the ICJ demanded, the Wall has become further entrenched and is a major feature of Israel’s annexation of the entire West Bank. Today, according to the latest OCHA reports, 456 km of the planned 710 km wall are now complete, 85% of which have been constructed inside the West Bank. The wall ‘regime,’ as the ICJ termed it, comprises not just the physical barrier but fences, ditches, razor wire, an electronic monitoring system, buffer (‘seam’) zones and roads from which Palestinians are either completely barred or have limited ingress or egress. Land within the West Bank on which this ‘regime’ has been built is primarily private Palestinian land ‘requisitioned’ by Israel through Israeli military orders. About 6,500 Palestinians now live in the ‘seam zone’, the barred area between the wall and the green line. Once the Wall is completed, this number will grow to about 25,000 Palestinians trapped in the seam zone—where they must obtain permits to live in their own homes and to cross one of the more than 60 gates or checkpoints in order to get to work, school, access their farmlands, their families or services on the Palestinian side of the Wall. The reports sum up the effects: “The Barrier impedes access to services and resources, disrupts family and social life, undermines livelihoods and compounds the fragmentation of the occupied Palestinian territory.”
BEYOND POLITICS AND LAW
The larger legal impact of the ICJ Opinion has been significant and remains under-utilized by civil society and political actors. The Advisory Opinion has registered on states’ radars in terms of the legal obligations the ICJ placed on the world community.
States have, individually and collectively, been taking steps to comply with the ICJ Opinion in various ways. Just a few of these are worth mentioning here. Shortly after the UNGA Resolution accepting the Opinion, the Non-Aligned Movement of UN ministers of 115 states met in Durban, South Africa and issued a declaration affirming both the Opinion and the resolution that followed. The Declaration called on the movement’s members to refuse “any products of illegal Israeli settlements from entering their markets, to decline entry to Israeli settlers, and to impose sanctions against companies and entities involved in the construction of the wall and other illegal activities” in the occupied territories.
The organized Boycott, Divestment and Sanctions (BDS) movement gained global momentum after the Wall decision, and has achieved scores of successes primarily through civil society action, but also to some degree at the state level. Eighteen European countries have official warnings to their citizens and businesses about the illegality of doing business with or supporting Israeli settlement activities. Trade unions, including Norway’s largest trade union federation, have endorsed boycotts against Israel. Targeted economic boycotts of major corporations such as G4S, Caterpillar and Veolia, and others who do business in the settlements have resulted in their loss of contracts and business opportunities. Recently, in Switzerland, Spain and the UK, the BDS movement won legislative or judicial victories protecting their actions as freedom of speech and association. Some of the largest churches, such as the Mennonites, Presbyterians and United Methodists, have voted to support BDS, or have entirely divested from companies profiting from the Israeli occupation. In their campaigns many of them raised the ICJ Opinion citing the illegal Israeli occupation and the Wall construction. Boycotts of cultural and educational institutions that support the occupation have also gained ground.
These gains, however, have been overwhelmingly on the ‘boycott and divestment’ front, not yet triggering one of the main remedies flowing from the ICJ opinion: state sanctions.
UNREALIZED POTENTIAL: WHAT NEXT?
In its Wall Opinion, the ICJ found that all states and the UN were required to take further actions to terminate the illegal situation caused by the Wall construction. The Court’s language echoed language from its prior opinions in the South Africa/Namibia situation—opinions which played a major role in generating consensus that the global community had a responsibility to end apartheid through sanctions against South Africa. That said, it should be noted that the African National Congress and allies in the Non-Aligned Movement at the UN succeeded in securing four Advisory Opinions and a contentious case in the ICJ before the ruling on sanctions became solidified as a strategy among member states. No such follow-up effort to build on the Advisory Opinion has been advanced by the Palestinian government at the UN—for example a request for an advisory opinion on the obligations of third states concerning the illegality of settlement activity by Israel. Despite the overwhelming state recognition of Palestine and official pronouncements of non-cooperation with, and trade restrictions on, Israeli settlement products, none has yet instituted sanctions.
Formally, the Palestinian government is the appropriate body to pursue such diplomatic actions. However, the current usurpation of the PLO by a PA lacking legitimacy in the eyes of most Palestinians means a government-led campaign is unlikely. Thus, the hard work of advancing the legal potential of the Advisory Opinion must be carried forward by civil actors in each of the states having diplomatic relations with Palestine. The BDS movement could systematically formulate a strategy for a state-by-state campaign to pressure for sanctions (the ‘S’ in the BDS) as the anti-apartheid movement did on South Africa. The Advisory Opinion provides one of the most important tools to move such a strategy forward and, thirteen years since its pronouncement, there’s no time to waste.