By: Hiba Bi’rat
This is the third and last part of our article series dealing with the international law position on the Israeli Wall of Separation constructed on the Palestinian Occupied Territories including East Jerusalem. This article mainly focuses on the consequences and responsibilities emerge from violating international law in this specific case.
Israel has justified its action of the wall construction in two main arguments: the state of self-defense against the suicide bombing committed by the Palestinian armed groups against Israeli civilians, in which it invoked Article 51 of the UN Charter and UN Security Council resolutions 1368 and 1373 (2001), and the state of necessity. The Israeli government argued that an observed reduction of the Israeli civilians killed by Palestinian attacks of approximately 45%; 76 Israeli were killed in 2003 (before the wall construction) to 53 in 2004 (after the wall construction). Nonetheless, the suicide bombing attacks was reduced only by 5 attacks: 26 attacks in 2003 to 21 attacks in 2004.
With reference to the first argument, in the Wall the ICJ noted that according to Article 51 of the UN Charter, a state has an inherent right of self –defense. However, this right is not absolute as it has some requirements to apply; the most important one is that an armed attack should be held by another state. The occupied Palestinian territory, however, is under the effective control of Israel and does not constitute another state; thus, neither Article 51 of the UN Charter, nor UN Security Council resolutions 1368 and 1373 (2001) are applicable to the wall construction. Moreover, according to the Palestinian counterargument, Israel is obviously mixes between jus in Bello under the International Humanitarian Law, to which the right of self –defense belongs, and jus in bellum to which rules that govern war and armed conflicts belong. In contrast, in Mara’aba v. the Prime Minister of Israel, the Israeli High Court of Justice noted that Article 51 of the UN Charter may be invoked in cases of armed attacks from non-state actors, just as the United States justification of the war on Al-Qa’eda.
For the second argument, The Israeli foreign Minister stated that the suicide bombing used by Palestinians as a warfare method invokes the state of necessity and requires the acceleration in the wall construction process. In the Wall case the ICJ recognized the Israeli legitimate right to protect its civilians against the indiscriminate Palestinian attacks; however, this state of necessity must be subject to the test of proportionality. Moreover, for the necessity state to apply, the committed action must be the last and most effective way to render the attacks, in other words, no less strict alternative should be available for the Israeli government to prevent the Palestinian attacks. Therefore, the construction of the wall is disproportional measure to satisfy the Israeli necessity to protect its civilians as Israel could have constructed the wall along the green Line rather than going beyond it. Similarly, in Gabicikovo- Nagymaros the ICJ noted that the state of necessity is very limited state and should be exercised on a very exceptional basis; therefore, Israel argument regarding the state of necessity as a justification of the wall construction was declared unacceptable by the ICJ. In contrast, in Beit Sourike village v. the Government of Israel, the Israeli High Court of justice invoked the necessity state and declared the wall construction legal; the court held that “it is the security perspective not the political one which must examine a route based on its security merits alone, without regard for the location of the green line.”
It is worth noting that two judges of the ICJ dissented the majority decision regarding the Wall decision. Justice Thomas Buergenthal stated that “ICJ failed to consider Palestinian terror attacks on Israeli Civilians, although it does not relieve Israel from its international obligations, it would serve humanitarian needs of Palestinian people.” Justice Higgins in his turn criticized the ICJ for dealing with the Israeli right of self-defense in a way that ignored the Israeli military necessity.
According to Article 30 of the State International responsibility Act, there are two main categories of implications resulting from the state international responsibility, which are:
In regard to our issue, the ICJ demanded Israel to:
The following is a clarifying chart that compares between the ICJ position from specific issues regarding the construction of the wall and the Israeli High Court of Justice position from the same issues:
The Israeli High Court Position from the Wall Issues in Comparison with the ICJ Position from such Issues
On the other side, in Barcelona traction, the ICJ emphasized the nature of some international obligations as an erga omns, including the basic human rights and the right of Self-Determination; therefore, State members of the international community should take the appropriate collective measure to restore Palestinian rights violated by the Israeli construction of the wall and guarantee Israeli non-repetition of any future violations.
States responsibility to ensure respect for the provisions of the Fourth Geneva Convention in the occupied Palestinian territory has been invoked, in many occasions, in the United Nations. For example the UN Security Council in its resolutions 681 (1990) and 1322 (2000), as well as the general Assembly resolution 43/21 (1988) have called upon states parties to the Fourth Geneva to ensure the full Israeli compliance with the provisions of the convention.
On the other hand, according to Article 1 (3) of the United Nations Charter, promoting international co-proration between states members of the international community regarding human rights issues constitutes a fundamental purpose of the United Nations. While both Article 55 and 56 of the United Nations Charter require a universal co-proration between the states, with the help of the United Nations, to ensure respect for international human rights. Therefore, the UN is under an obligation to move jointly and collectively to protect human rights in the occupied Palestinian territory, not only through its Security Council and its General Assembly, but also through its International Court of Justice.With full understanding of the difficulties that face the ICJ in activating its judicial capacity due to jurisdictional issues, the ICJ power of issuing advisory opinions may play an effective rule in the Palestinian Israeli conflict. Although the ICJ advisory opinions are of a non-binding nature, they still carry a significant political weight, and still represent “an authoritative statement of legal position,” According to Peter Bekker. In conclusion, the UN which is the international guardian on human rights and international peace and security should play more effective rule in the Palestinian Israeli struggle in a way that achieves international peace and stability to the whole area of the Middle East.
After the Second Palestinian Uprising ‘Intifada’2000, Palestinian armed groups came up with a new method of warfare: that is suicide bombing inside Israel. Israel made use of this situation; in 2002, the Israeli government adopted a plan to construct a wall between the Israeli and the Palestinian occupied territories. The wall, however, went beyond the Green Line, which is the legal boundary between the two territories. The wall complicated Palestinians’ daily lives and created many humanitarian obstacles; therefore, the United Nations General Assembly interfered in 2004. In its report, the United Nations General Assembly noted the high seriousness of the situation in the Palestinian occupied territory; thus, it asked the International Court of Justice to issue an advisory opinion on the situation. Indeed, in 2004, the ICJ issued an advisory opinion on the situation. The ICJ advisory opinion analyzed various violations resulting from the Israeli construction of the wall on the Palestinian occupied territory. Violations were analyzed under International Human Rights Law, International Humanitarian Law, and United Nations Principles.
For human rights violations, the Israeli construction of the wall ripped the West Bank territory apart. The wall highly restricted freedom of movement as it required special permits, which resulted in humiliating Palestinians and treating them inhumanely. These restrictions imposed on Palestinians after the wall’s construction prevented them from enjoying an adequate standard of living, left them without access to health facilities, educational institutes, or workshops. Moreover, the reckless route of the wall divided residential habitual areas, which in turn separated families and deprived them from stability and privacy. Previously mentioned restrictions on the daily lives of Palestinians constitute serious violations of International Human Rights law. More specifically, they constitute severe violations of the International Covenant on Civil and Political Rights 1966, International Covenant on Economic, Social, and Cultural Rights 1966, and the International Convention on the Rights of the Child 1990.
In regard to Humanitarian Law violations, the Israeli construction of the Wall destroyed private property of Palestinians without a legal justifiable military necessity. Furthermore, the wall, although not a De Jure annexation of Palestinian lands, has effects tantamount to a De Facto annexation of the Palestinian lands, which prevents the Palestinians from exercising their inherent right of self-determination. Not only does the wall illegally annex Palestinian occupied territory, but also it changes the occupied territory status geographically, materially, naturally, and legally in a way that affects the demographic composition of the occupied society. This demographic composition is affected mostly by the wall route that encircled illegal Israeli settlements in the West Bank, on one hand, and forcedly deports Palestinian civilians from the occupied territory affected by the wall’s route. Furthermore, the wall exists, in the opinions of international expertise, as an illegal collective punishment for the whole Palestinian society. All these illegal actions by the Israeli government constitute serious violations of International Humanitarian Law, more specifically, Fourth Hague Convention 1907, Fourth Geneva Convention 1949, and First Protocol Additional to Geneva Conventions 1977. Moreover, the wall construction violates the international rules and principles of the United Nations Charter and various resolutions.
In summary, the wall construction on the occupied Palestinian territory is in violation of international human rights law, international humanitarian law, and international general principles of the United Nations. Accordingly, Israel bears an international responsibility on its violations. This international responsibility requires Israel to stop the construction of the wall, dismantle what has been already built, repair all damages caused to Palestinians and their property, and compensate them for their losses. On the other hand, other states have an international responsibility on the Israeli violations of the International Law. States are obligated, under International law, to take collective and effective measures to restore the Israeli violations of Human rights. Moreover, states have a collective obligation to ensure respect to International Humanitarian Law, more specifically, to Geneva Conventions and their protocols. Other states, therefore, are obligated to compel Israel to stop its illegal construction of the wall on the Palestinian occupied territory on one hand, and to refrain from any financial, military, or diplomatic assistance to Israel to continue its illegal actions in the Palestinian occupied territory.
In addition to the Israeli international responsibility and other states international responsibility, the United Nations has an international responsibility on the Israeli violations of international law. The UN has to discharge its primary duty to maintain international peace and security. UN Security Council, more specifically, has to play more effective rule in the Palestinian issue, as it has to enforce all its previous resolutions regarding the Palestinian Israeli struggle and to compel Israel to bear its international responsibilities. In case the UN Security Council failed to perform its primary duty, the UN General Assembly should pay serious consideration to the possibility of invoking its resolution, uniting for Peace 1950. Uniting for Peace resolution will allow the UN General Assembly to take effective measures towards achieving justice to the Palestinian people. Finally, the International Court of Justice should play a more significant role in the Palestinian situation. This role may not be played through cases due to the jurisdictional requirements; however, more advisory opinions should be passed on other serious issues such as the issue of illegal settlements in the West Bank.
In conclusion, Israel, through its construction of the wall on the occupied Palestinian territory, has violated International Law different chambers. Severe violations of international Human Rights Law, International Humanitarian Law, and UN international principles have been committed. This illegal situation invokes the international community’s responsibility towards Palestine and its oppressed people. Israel has shown no intention to change its illegal policy in the Occupied Palestinian territory, which gives rise to the question: until when would Israel violate the most fundamental human rights of an entire nation before the eyes of the ‘civilized’ international community in the twenty first century?
These are two clarifying charts of violations committed by Israel under International Law
Human Rights Violated, according to the ICJ, Because of the Israeli Construction of the Wall
International Humanitarian Law’s Obligations Violated, according to the ICJ, Because of the Israeli Construction of the Wall