Israeli Wall of Separation: International Law Position 1

By: Hiba B’irat

Introduction

Israel, the occupying power, has been constructing a wall on the Palestinian occupied territory, including in and around East Jerusalem, since 2001, with an allegation of protecting Israeli civilians from Palestinian violence attacks. The wall, however, is being constructed in violation of International Law.
The construction of the wall on the Palestinian occupied territory, including in and around East Jerusalem, is violating International Human Rights Law, International Humanitarian Law, and United Nations principles. Israel, therefore, has an obligation to terminate its violations under International Law.

This series of articles, to be published in the coming weeks, identifies International Law violations resulting from the construction of the wall by Israel on the Palestinian occupied territory. Furthermore, the articles analyze relevant principles under International Human Rights Law, International Humanitarian Law, and United Nations Law. The purpose of them is to emphasize Israel’s international obligation to terminate its violations and repair the damage caused by the illegal construction of the wall.

This series constitutes of three main articles that deal with the following issues constantly: international human rights law position, international humanitarian law position, and legal consequences of the violations under the two previous laws.
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This first article of the series discusses facts and background of the wall, UN position, and international human rights law position.

• Facts about the Wall

​In July 2001, Israel’s government came up with the idea of constructing a “Security Fence,” between the two territories: the Palestinian and the Israeli; ultimately, the Plan’s final route was approved by the Israeli cabinet in 2003. The final length of the Security Fence (“the Wall”) was estimated by 720 Km along the Palestinian occupied territories, more specifically the West Bank; devouring 975 Sq. Km or 15.6 % of the Palestinian occupied territories as it extends in up to 20 Km east the Green Line, with a purpose to encircle Jewish settlements in the area. The wall width was estimated of 50 to 70 meters up to 100 meters in some places, with 4 meters depth, and an encircled population of 397,000 Palestinians and 320,000 Israeli- Jewish settlers.  

​It is worth noting that long before the beginning of the wall construction in the West Bank, another fence (“Wall”) was constructed along the boundaries between Israel and Gaza Strip. This Gaza wall was not a questionable issue because of its legal route that did not lie beyond the Green Line,unlike the wall in the West Bank which exceeded the legal boundaries and went beyond the Green Line and so became a matter of illegal annexation of the Palestinian Occupied Territory that was referred to the United Nations to decide upon its international legality.

• The Wall in the United Nations
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Because of the serious legal issue regarding the status of the wall in the occupied Palestinian territories, the United Nations decided to interfere. The United Nations General Assembly first issued a report on the wall construction, then it issued its ES-10/13 Resolution that called upon Israel to “stop and reverse the construction of the wall in the occupied Palestinian territory, including in and around east Jerusalem.” This resolution was followed with resolution ES-10/14 in which the General Assembly condemned the Israeli construction of the wall and called upon the interference of the International Court of Justice (“ICJ”) with an advisory opinion.  The ES- 10/14 resolution called for an advisory opinion by the ICJ under the following issue: “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 Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions.”

The ICJ accepted the resolution’s request, and issued an advisory opinion on the issue of international legality of the Israeli wall’s construction.  The advisory opinion dealt with the different international aspects and applicable laws regarding the issue before it; the ICJ recognized the different international violations resulting from the construction of the wall under the United Nations laws, the international human rights laws, and the international humanitarian laws. This series, therefore, will focus on the different relevant international laws and their applicable rules and provisions so as to identify the Israeli violations of such international laws, and to analyze Israel’s international responsibility regarding its illegal construction of the wall in the occupied Palestinian territory
Relevant Rules and Principles under International Law

• United Nations Charter and Resolutions
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• Palestine in the United Nations:
  
  

The issue of Palestine has been one of the major issues on the United Nations agenda, many United Nations specialized bodies have been established to deal with the present and the future of the Palestinian issue as well as the implications of the Palestinian- Israeli continuous struggle.   Examples of these specialized bodies are: the United Nations Relief and Work Agency for Palestinian Refugees in the Middle East (“UNRWA”), the United Nations Committee on the exercise of the Inalienable Rights of the Palestinian People, and the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and other Arabs of the Occupied Territories.  In addition to these specialized bodies, number of general organs of the United Nations paid special attention to the Palestinian Issue, such as: the United Nation Commission on Human Rights, the United Nations Committee on Human Rights, and the United Nations Committee on Racial Discrimination.
Regardless of its effectiveness, The Security Council and the General Assembly have played a significant rule in the Palestinian Israeli conflict. Many resolutions were issued by the two principal organs of the United Nations. some of these resolutions changed the route of the history; as the General Assembly Petition resolution 181, other resolutions were not as effective as they should have been; as Security Council resolutions 242 and 338 regarding the occupation of the Palestinian territory in 1967.

Unlike its equivalents, the ICJ did not play an observed rule in the Palestinian Israeli conflict, until 2004 when it revealed its advisory opinion regarding the legality of the Israeli wall’s construction in the Palestinian occupied territory. This step of the ICJ was a significant one regarding the Palestinian Israeli conflict, although advisory opinions are of a non-binding nature, they still reveal the international applicable laws, which are binding on the international community including Israel and Palestine. According to the 2005 Special rapporteur to the Human Rights Commission, John Dugard, the law described in the wall case is not less than the United Nations binding law.   The two parties concerned of the wall advisory opinion revealed different positions regarding it; the Palestinian representative at the United Nations considered the opinion as a justice achievement for the Palestinian people as well as for the international community that respects the international law. While the Israeli representative at the United Nations considered the wall advisory opinion as stab of the reputation and credibility of the ICJ and the United Nations in General.
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The Wall issue was one of many other issues regarding Palestine before the United Nations; other problems were: peace agreements, settlements illegal constructions, Israeli Sovereignty and its international status, and most importantly: the issue of self-determination of Palestinians. The next section will deal with the Palestinians self- determination issue and its relevancy to the wall construction.

• Palestinians Self- Determination issue and the wall relevant effect:
  
  

Generally speaking, Self- determination stands for “the right of cohesive national groups ‘peoples’ to choose for themselves a form of political organization and their relation to other groups.” This principle is deeply rooted in the international community history; thus, it is considered to be a jus cogens principle or a fundamental customary principle that amounts to an inherent and “inalienable” right.  Other experts in the international environment prefer to classify this principle as an erga omns principle or a binding principle that does not allow any derogation even during emergency situations; this was the route of the ICJ.

Regardless of the controversial nature of this principle, a consensus around its importance has not been questionable by the international community. This principle has been recognized long time ago as a customary principle; however, it was firstly codified in the United Nations Charter 1945. Many later international documents emphasized the importance of this principle; as it was mentioned in the Human Rights covenants 1966: the International Covenant on Civil and Political Rights (“the ICCPR”), and the International Covenant on the Economic, Social, and Cultural Rights (“ICESCR”).

The United Nations General Assembly stated the importance of the Self-Determination principle in number of its resolutions, the most important resolutions, nevertheless, are: resolution 1514 in 1960 regarding the independence of the colonial countries and peoples, and resolution 2625 in 1970 regarding the principles of international law and friendly relations among nations.  The general Assembly resolutions are of a non- binding nature, however, resolution 2625 reflects an opinion juris or a high value customary law. For the Palestinian issue, the General Assembly shifted its terminology towards Palestinians from refugees to carriers of an “Palestinian National Identity”in its resolution 2535 in 1969; moreover, in 1970 the General Assembly issued its resolution 2672 in which it recognized the Palestinian right of Self-Determination. After that land mark resolution, the special committee on the exercise of the inalienable rights of the Palestinian people has emphasized the Palestinian right to self- determination in a frequent basis.

For the ICJ, the emphasis of the Self- Determination principle has been an inherent pattern in the cases and advisory opinions of the ICJ. For example in Namibiaadvisory opinion the court held that peoples under colonial systems have the right to independence and to Self-Determination. Similarly, in Western Sahara the court gave a remarkable definition of the Self- determination principle saying that the principle stands for “the need to pay regard to the freely expressed will of peoples.” A third similar Case, in East Timor, the court reemphasized the importance of the principle by considering it an essential component of the international law.  In the wall, the ICJ paid observed attention to the Palestinian Self-Determination right and examined the wall effects on such right and concluded that the wall construction in the occupied Palestinian territory violates the Palestinians right to Self-Determination.

Now how does the wall violates the Palestinian right to Self-Determination? In addition to the wall’s separation nature that makes the Two-States solution, laid down in Oslo and Geneva and in many other peace agreements, difficult, if not impossible, to achieve, Self- Determination principle is attached to number of principles of the International Humanitarian Law. The principle of Self- Determination is connected, for example, to prohibition of land annexation under International Humanitarian Law, which will be discussed later in this paper; thus, we will delay the answer on this question until we complete the section regarding the International Humanitarian Law relevant rules.
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It is worth noting that in September 2005, the Israeli High Court of Justice ruled on Mara’abe v. the prime minister of Israel.  The case was filed by a Palestinian citizen, Mr. Mara’abe, who suffered from the effects of the wall on his land. Unlike the ICJ, the Israeli High Court of Justice used the term (Separation Fence) to describe the wall.  In its decision, the Israeli High Court of Justice did not address the issue of Self-Determination except when it mentioned the dissent opinion of Justice Higgins and Justice Kooijmans. This willful ignorance of the issue of Self-Determination makes this decision a miscarriage of justice as it did not discuss the most fundamental and relevant principle.  
As we stated previously, the principle of Self-Determination is a fundamental principle. However, this principle does not stand by its own; other principles under International Human Rights Law and International Humanitarian Law supplements this principle; therefore, the next section will be about relevant rules and principles under International Human Rights Law.

• International Human Rights Law
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• The applicability of International Human Rights Law
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Although no state now a days challenge the applicability of the International Human Rights law on Palestine, as Human Rights law has an “unquestionable universal value,”  Israel in the Wall challenged the applicability of Human Rights law. Israel argued that in situations of armed conflicts Human Rights law cease to apply rather International Humanitarian Law becomes applicable, and because of the presence of a Palestinian Israeli armed conflict International Humanitarian Law applies no International Human Rights Law. Moreover, Human Rights law is designed to guarantee people rights and protect them against their national government’s interference and abuse. In this argument, Israel has used the interim agreements 1995 between it and the Palestinians, by which 14 civil aspects were transferred to the Palestinian National Authority (PNA) to exclude the applicability of the International Human Rights Law.

Regarding the first argument, UN General Assembly resolution 2675 in 1970 under the title of “[b]asic principles of civilian population in armed conflicts” noted that Human Rights law does not cease to apply during the armed conflicts; on the contrary, fundamental human rights continue to apply in their full capacity in such situations.  To put differently, some human rights cease to apply during the situation of armed conflicts; still yet, fundamental human rights work as a supplementary instruments to the laws of war and armed conflicts, as it deal with some gaps in greater details.  Moreover, the ICJ, in the legality of the threat and use of nuclear weapons, refused the argument of excluding human rights applicability in cases of armed conflicts except for rights that allow for derogations; furthermore, it divided the rights in an armed conflict into three categories:

• Rights which exclusively fall under the international humanitarian law;
• Rights which exclusively fall under the international human rights law; or
• Rights which fall under the intersecting area between the two chambers of international law.

Therefore, the first Israeli argument is unacceptable and does not justify a legal exclusion of the applicability of the International Human Rights Law to the occupied Palestinian territory.

For the second argument regarding the territoriality of Human Rights law’s application, the ICJ noted that Human Rights Law is applicable not only within the national territory of the state, but also within the territory over which the state practices effective control and jurisdiction. Thus, under the second category Human Rights Law is applicable to occupied Palestine territory as well. This interpretation of the applicability of International Human Rights Law is supported by the applicability scope provisions in relevant human rights treaties. For example, Article 2 (1) of the International Covenant on Civil and Political Rights (“ICCPR”) extends the applicability of its provisions to the people in territories over which a state party exercises an effective jurisdiction. Furthermore, The Human Rights Committee has interpreted Article 2 (1) of the ICCPR in its General Common No 31 by stating that “state parties must respect and ensure the rights laid down in the covenant to anyone within the power and effective control of that state party, even if not situated within the territory of that state party.” Similarly, Article 2 of the International Convention on the Rights of the Child (“CRC”) extends the applicability of its provisions to children in a territory over which a state party exercises its jurisdiction. It is worth noting here that states parties may be held liable for violating human rights in a territory over which these states parties exercise effective control.

Israel finally invoked Article 4(1) of the ICCPR to preclude its applicability; it argued that this article allows a state to derogate number of human rights in cases of emergency, and because Israel has been attacked by Palestinians since 1948, the emergency situation which was announced then continues to exist. Therefore, some human rights are subject to derogation by the Israeli government. Simply the court refused this argument and announced the applicability of the ICCPR due to the very restrict requirements of the exception of derogation that is, the availability of the state of necessity, which will be discuss later in this paper.
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After we proved the applicability of the international human rights to the Palestinian occupied territory, we need to know what the specific violations of human rights law resulting from the construction of the wall are. Next section will analyze human rights violations under the International Covenant on the Civil and Political rights (“ICCPR”), the International Covenant on the Economic, Social, and Cultural Rights (“ICESCR”), and the International Convention on the Rights of the Child (“CRC”).

• The violations of Human Rights Law Resulting from the Construction of the Wall
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The construction of the wall resulted on two levels of human rights violations: rights violated directly by the construction of the wall such as property rights, and rights violated indirectly by the construction of the wall such as movement’s rights. However, the property rights are more related to the International Humanitarian Law; thus, they will be discussed in the next article.
One of the most obvious violations, resulting from the construction of the wall, is the violation of movement freedom. The wall is terminating the Palestinian occupied territories into small pieces, and the traveling between these pieces requires a special permits.This requirement makes it difficult for Palestinians to reach their workplaces, health facilities, and educational institutes, as required permits either arrive late or do not arrive at all,  especially with the Israeli order issued by the defense forces in October 2003, according to these orders neither a Palestinian resident is allowed to stay, nor a non-resident is allowed to access without the required permit.  
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Moreover, the wall is prohibiting Palestinians from an adequate standard of living, as it divides the Palestinian habitual areas leaving them with a very limited access to health, work, food, and education; without mentioning the displacement issue and the distribution of the family peace and unity. More than 11,000 Palestinian will be displaced, especially after the issuance of the Israeli military order in 2004 that prohibits Palestinians from any construction within 90-127 feet of the wall. The problem of displacement is even more serious when related to the residents of east Jerusalem; 60,000 out of 230,000 Palestinian who are residents in East Jerusalem will find themselves in the West Bank; therefore, need to get a permit to access their homes , lands, workplaces, hospitals, and schools. The prevention of access to farms and workshops has resulted in a serious food issue. According to the special rapporteur on the right of food, the destruction of the Palestinian lands and water resources (50% of the water resources in the West Bank will be either destructed or included) is “provoking hunger and malnutrition among Palestinian civilians in a way that amounts to collective punishment of Palestinian society.”

the ICJ advisory opinion analyzed the following international human rights violations resulting from the construction of the wall:

• The right to humane treatment: Palestinians have been humiliated on the wall ports waiting to access their property, workshops, and other social facilities. According to Article 7 of the ICCPR inhuman treatment is prohibited; thus the wall construction violates Article 7 of the ICCPR.   
• The freedom of movement: as discussed above, the freedom of movement has been violated, access to daily life activities is permitted only with an Israeli permit which either suffers long delays or does not arrive at all, and even if it arrives, usually will be for a very limited period. According to Article 12 of the ICCPR movement freedom should be respected and no limitations should be imposed except in the situations of emergency under number of requirements that the Israeli act does not meet as will be discussed later.
• The right to work: as stated previously, the wall is preventing the Palestinians from reaching their workshops. According to Article 7 of the ICESCR, right to work should be respected and favorable conditions should be provided rather than imposing limitations and prohibiting access to such right. Therefore, Israel has violated Article 7 of the ICESCR.
• The right to family life: the wall has scattered Palestinian families. After the construction of the wall, lands have been divided; thus, houses on these lands have been divided as well. Brothers, sisters, sons, grandsons, parents, grandfathers… have been separated. According to Article 10 of the ICESCR family life should be protected by the widest means rather than distrusted and violated.  Similarly, according to Article 16 of the ICRC a child should not be subject to arbitrary interference with his family life. Thus, Israel has violated Article 10 of the ICESCR,  and Article 16 of the ICRC.
• Right to Adequate Standard of living, including right to food: as was discussed previously, the wall has prohibited Palestinians from enjoying an adequate standard of living, especially with the highly limited access to essential living conditions rather than means of welfare. Moreover, the wall has prevented Palestinians from reaching their lands and workshops, it has destructed their water resources, and left their fertile lands port and wild. According to Article 11 (1) of the ICESCR states should provide an adequate standard of living including dissent and sufficient food. Similarly Article 27 of the CRC calls for an adequate standard of mental, physical, moral, spiritual, and social status. Israel; therefore, has violated both Articles 11 (1) of the ICESCR and Article 27 of the CRC.
• Right to education and health: the wall has imposed heavy limitations on the access to schools, universities, and colleges; additionally, it has limited the access to hospitals, clinics, and health centers. The ICJ noted these violations especially for little children. According to Article 24 of the CRC calls upon states to provide the highest conditions of health for children, while Article 28 calls upon states to provide the highest conditions of education for children in their sovereign territory or in a territory under their jurisdiction. Thus, Israel has violated Articles 24 and 28 of the CRC.  

This first article of our wall series analyzed human rights violations resulting from the construction of the wall, the next article however will deal with International Humanitarian Law violations, especially with the presence of the Palestinian Israeli armed conflict and the situation of occupation, which leaves huge space for International humanitarian principles and rules to apply.