uploaded : Friday 16th Jul 2004 at 23:18
by : Americans for Peace Now
The International Court of Justice Opinion on the Route of the Israeli Security Barrier in the West Bank
The International Court of Justice (ICJ) opinion regarding the legal consequences of the Israeli security barrier being built in the West Bank is bound to grate on the ears of Israelis. Further, the ICJ opinion does not give as much credence to legitimate Israeli security concerns about terrorism as supporters of Israel expect and deserve to see in a serious discussion about the situation in the region. Indeed, the opinion raises serious questions about how states are supposed to defend themselves against non-state threats. The ICJ?s silence on how Israel can defend itself against non-state actors renders the whole report suspect in the eyes of Israelis, who are very focused on security concerns.
However, the immediate attacks that were launched against the ICJ opinion were not necessarily fair to the work done by the justices, who appeared to have taken Israeli objections seriously and provided thoughtful responses to many of them. The justices pointed out that their language and findings were, to a large degree, pre-determined by the nature of the UN General Assembly resolution that requested their input. The Court did recognize Israel?s right to self-defense against terrorist attacks in a general sense, but it did not approve a specific method for Israel to use to protect its people.
The bottom line is that the ICJ saw its fundamental task as determining whether or not Israel is an occupying power in the West Bank, and, if so, what international legal consequences logically flow from its construction of a security barrier on West Bank territory. The ICJ was quite specific in writing that it was not reviewing the security barrier in its entirety-just those sections built over the Green Line. In the end, the ICJ essentially treated the security barrier as an extension of Israeli settlement building in the West Bank: it found the settlements to be illegal under international law and the route of the fence in the West Bank to be illegal, too, since it serves to perpetuate the original unlawful activity.
At the end of the day, Israel is likely to ignore the ICJ opinion because of its implications for the entire settlement enterprise. On the other hand, Israel is likely to make adjustments to the location of the security barrier because of the recent ruling of the Israeli High Court of Justice, which recognized the barrier as a security measure but called on the Israeli government to balance security needs with the humanitarian and economic needs of Palestinians impacted by the route of barrier. But even this adjusted route, to the extent it lies over the Green Line, would be considered illegal under the ICJ opinion.
Perhaps the most enduring impact of the ICJ opinion will be its clear interpretation of international law as it applies to Israel?s presence in the West Bank. The opinion should remind Israelis that if they want to get international recognition for Jewish neighborhoods in East Jerusalem and settlement blocs in the West Bank, only a negotiated agreement with the Palestinians will deliver it. Unilateral measures can provide much needed security protection for Israel, but they won?t allow Israel to remain over the Green Line and enjoy acceptance for its actions in the global community. But the same global community should be concerned about how the ICJ treats security threats from sources that are not states. Perhaps the ICJ opinion on self-defense will trigger a deeper debate, not only in the context of the Israeli-Palestinian conflict, but also in a much broader context.
The following comments summarize the ICJ?s opinions about some of the key arguments submitted to it in this case:
Israel and its supporters said that the ICJ is not a proper forum for considering the legal implications of the security barrier because the Court lacks jurisdiction; the issue is basically a political, not a legal, matter; and the question should be resolved through negotiations within the framework of the Road Map.
In response to these arguments, the ICJ said that the Court determines its jurisdiction based on whether the request for an advisory opinion comes from an appropriate entity. In this instance, the UN General Assembly requested an opinion, and it is clearly qualified to do so. The ICJ acknowledged that there is a political character to the questions surrounding the security barrier. However, the justices wrote that the presence of a political character does not negate a legal character to the matter, which also exists. The ICJ noted that the Road Map does not mention the security barrier, and, in any event, it is not clear to the Court how an advisory opinion from it would impact negotiations under the Road Map one way or the other.
Declining To Exercise Jurisdiction
The argument was made that the ICJ should decline to exercise its jurisdiction over this issue because it does not have the facts and evidence needed to enable it to reach its conclusions. Israel, in particular, argued that the ICJ could not reach an opinion on issues that raise questions about facts that cannot be elucidated without hearing from all parties of the conflict. Specifically, Israel said the ICJ cannot rule on legalities without inquiring into the nature of the security threat to which the fence is intended to respond and the impact of construction of the fence on Palestinians.
The ICJ responded that, ?This task, which would already be difficult in a contentious case, would be further complicated in an advisory proceeding, particularly since Israel alone possesses much of the necessary information and has stated that it chooses not to address the merits.? Since Israel was not willing to participate in the case by providing such security information, the Court relied on a report and dossier from the UN Secretary-General, as well as information from other participants in the case and information from Israel taken from its written submission and other official documents available in the public domain.
The Wall v. The Fence
Many Israelis disliked the ICJ ruling, in part, because it used the term ?wall? to describe the barrier being built in the West Bank. Palestinians tend to use the term ?wall,? while Israelis prefer ?fence.? Therefore, Israelis felt that the ICJ?s use of the term ?wall? reflected a general attitude hostile to the Israeli position on the overall issue.
The ICJ opinion is very clear about why certain terminology was used. It states, ?The ?wall? in question is a complex construction, so that that term cannot be understood in a limited physical sense. However, the other terms used, either by Israel (?fence?) or by the Secretary-General (?barrier?) are no more accurate if understood in the physical sense. In this opinion, the Court has therefore chosen to use the terminology employed by the General Assembly.? It should be noted that the ICJ opinion also includes a thorough physical description of the barrier, mentioning its various aspects, such as a fence with sensors, a ditch, a patrol road, and coils of wire. The ICJ also recognizes that only a small portion of the barrier actually consists of a concrete wall.
The Green Line
Some Israelis believe that the ICJ opinion condemns the entire security barrier.
However, the ICJ notes that the General Assembly request concerns only the legal consequences of the barrier being built ?in the Occupied Palestinian Territory, including in and around East Jerusalem.? The ICJ recognizes that some parts of the barrier are being built or are planned to be built on Israeli territory itself. ?The Court does not consider it is called upon to examine the legal consequences arising from the construction of these parts of the wall.? In other words, the ICJ only concerned itself with the part of the barrier built across the Green Line, not the entire structure.
Israel has argued that its presence in the West Bank should not be considered occupation. Rather, the West Bank is disputed territory that Israel won in a defensive war in 1967 from Jordan, whose occupation of the land was never recognized by the international community.
The ICJ observed that under customary international law as reflected in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of October 18, 1907, territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised. The ICJ states, ?The territories situated between the Green Line?and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories?have done nothing to alter this situation.?
The opinion continues, ??the Court considers that the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties. Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out. The Court accordingly finds that the Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.?
The ICJ cites numerous Security Council resolutions calling for Israel to observe the Geneva Conventions and international law governing military occupation and reaffirming the applicability of the Fourth Geneva Convention to the occupied territories. The ICJ points out that Article 49 of the Fourth Geneva Convention provides, ?The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.? This provision, says the ICJ, prohibits ?any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.? In other words, Israeli settlements in the West Bank are illegal.
Barrier A Temporary Measure Solely To Fight Terror
Israel argued that the barrier?s sole purpose is to enable it effectively to combat terrorist attacks launched from the West Bank. Israel also stated that the barrier is a temporary measure.
The ICJ responded that the route of the barrier in the West Bank is designed to include a majority of settlers living in West Bank settlements, which were established in breach of international law. The Court found that it could not remain indifferent to the fear that the route of the fence could prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. ?The Court considers that the construction of the wall and its associated regime create a ?fait accompli? on the ground that could well become permanent, in which case, notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation,? the ICJ wrote. ?In other terms, the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the Security Council??
Further, ?the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives?The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nonetheless to remain in conformity with applicable international law.?
Self-Defense Under UN Charter
On the other hand, the ICJ raises troubling questions about how Israel (or any other county) is allowed to defend itself from terrorist attacks coming from inside territory it controls. Israel claims that the barrier is consistent with Article 51 of the UN Charter and its inherent right to self-defense. Article 51 of the Charter reads, ?Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.?
The ICJ opinion claims that ?Article 51 of the Charter thus recognizes the existence of an inherent right of self-defense in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State.?
Nothing in the Article 51 language cited above specifies that self-defense can only be applied in response to an attack from another state. If there is additional precedent to back-up this interpretation, the ICJ opinion did not provide it.
Perhaps the ICJ opinion could be interpreted as saying that a state can only respond in self-defense to a threat coming from another state not under its occupation.
However, this logic raises questions about how an occupying state could defend its citizens living illegally in occupied territory, as well as how states are supposed to defend themselves from non-state actors in general. In this case, it is critical to note that under the last four years of terrorist siege, Israelis living in Israel proper have often been the target of suicide bombers originating from the West Bank on behalf of terrorist organizations pledged to the destruction of Israel. It therefore is all the more troubling that the ICJ should have taken such a prejudicial view of Israeli security considerations and Israel?s right to self-defense. The ICJ interpretation of Article 51 could also imply that an occupying power lacks the right to defend its citizens living within its own borders from a non-state threat emanating from territory that it occupies. The ICJ opinion seems to be inconsistent with interpretations of international law by Amnesty International and Human Rights Watch, which have called terrorist attacks on Israeli civilians and settlers ?war crimes? and ?crimes against humanity.?