International Court of Justice (ICJ) Ruling on the Israeli Security Barrier ("Wall") - Part IV
July 9, 2004

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International Court of Justice (ICJ) Ruling on the Israeli Security Barrier ("Wall") - July 9, 2004 Part IV

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130. As regards the International Covenant on Economic, Social and Cultural Rights, that instrument includes a number of relevant provisions, namely:  the right to work (Articles 6 and 7);  protection and assistance accorded to the family and to children and young persons (Article 10);  the right to an adequate standard of living, including adequate food, clothing and housing, and the right “to be free from hunger” (Art. 11);  the right to health (Art. 12);  the right to education (Arts. 13 and 14).

          131. Lastly, the United Nations Convention on the Rights of the Child of 20 November 1989 includes similar provisions in Articles 16, 24, 27 and 28.

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          132. From the information submitted to the Court, particularly the report of the Secretary‑General, it appears that the construction of the wall has led to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention.

          133. That construction, the establishment of a closed area between the Green Line and the wall itself and the creation of enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto).  Such restrictions are most marked in urban areas, such as the Qalqiliya enclave or the City of Jerusalem and its suburbs.  They are aggravated by the fact that the access gates are few in number in certain sectors and opening hours appear to be restricted and unpredictably applied.  For example, according to the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967, “Qalqiliya, a city with a population of 40,000, is completely surrounded by the Wall and residents can only enter and leave through a single military checkpoint open from 7 a.m. to 7 p.m.”  (Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the situation of human rights in the Palestinian territories occupied by Israel since 1967, submitted in accordance with Commission resolution 1993/2 A and entitled “Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine”, E/CN.4/2004/6, 8 September 2003, para. 9.)

          There have also been serious repercussions for agricultural production, as is attested by a number of sources.  According to the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories

“an estimated 100,000 dunums [approximately 10,000 hectares] of the West Bank's most fertile agricultural land, confiscated by the Israeli Occupation Forces, have been destroyed during the first phase of the wall construction, which involves the disappearance of vast amounts of property, notably private agricultural land and olive trees, wells, citrus grows and hothouses upon which tens of thousands of Palestinians rely for their survival” (Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, A/58/311, 22 August 2003, para. 26). 

Further, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967 states that “Much of the Palestinian land on the Israeli side of the Wall consists of fertile agricultural land and some of the most important water wells in the region” and adds that “Many fruit and olive trees had been destroyed in the course of building the barrier.”  (E/CN.4/2004/6, 8 September 2003, para. 9.)  The Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights states that construction of the wall “cuts off Palestinians from their agricultural lands, wells and means of subsistence” (Report by the Special Rapporteur of the United Nations Commission on Human Rights, Jean Ziegler, “The Right to Food”, Addendum, Mission to the Occupied Palestinian Territories, E/CN.4/2004/10/Add.2, 31 October 2003, para. 49).  In a recent survey conducted by the World Food Programme, it is stated that the situation has aggravated food insecurity in the region, which reportedly numbers 25,000 new beneficiaries of food aid (report of the Secretary‑General, para. 25).

          It has further led to increasing difficulties for the population concerned regarding access to health services, educational establishments and primary sources of water.  This is also attested by a number of different information sources.  Thus the report of the Secretary‑General states generally that “According to the Palestinian Central Bureau of Statistics, so far the Barrier has separated 30 localities from health services, 22 from schools, 8 from primary water sources and 3 from electricity networks.”  (Report of the Secretary‑General, para. 23.)  The Special Rapporteur of the United Nations Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967 states that “Palestinians between the Wall and Green Line will effectively be cut off from their land and workplaces, schools, health clinics and other social services.”  (E/CN.4/2004/6, 8 September 2003, para. 9.)  In relation specifically to water resources, the Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights observes that “By constructing the fence Israel will also effectively annex most of the western aquifer system (which provides 51 per cent of the West Bank's water resources).”  (E/CN.4/2004/10/Add.2, 31 October 2003, para. 51.)  Similarly, in regard to access to health services, it has been stated that, as a result of the enclosure of Qalqiliya, a United Nations hospital in that town has recorded a 40 per cent decrease in its caseload (report of the Secretary‑General, para. 24). 

          At Qalqiliya, according to reports furnished to the United Nations, some 600 shops or businesses have shut down, and 6,000 to 8,000 people have already left the region (E/CN.4/2004/6, 8 September 2003, para. 10;  E/CN.4/2004/10/Add.2, 31 October 2003, para. 51).  The Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights has also observed that “With the fence/wall cutting communities off from their land and water without other means of subsistence, many of the Palestinians living in these areas will be forced to leave.”  (E/CN.4/2004/10/Add.2, 31 October 2003, para. 51.)  In this respect also the construction of the wall would effectively deprive a significant number of Palestinians of the “freedom to choose [their] residence”.  In addition, however, in the view of the Court, since a significant number of Palestinians have already been compelled by the construction of the wall and its associated régime to depart from certain areas, a process that will continue as more of the wall is built, that construction, coupled with the establishment of the Israeli settlements mentioned in paragraph 120 above, is tending to alter the demographic composition of the Occupied Palestinian Territory.

          134. To sum up, the Court is of the opinion that the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights.  They also impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the United Nations Convention on the Rights of the Child.  Lastly, the construction of the wall and its associated régime, by contributing to the demographic changes referred to in paragraphs 122 and 133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions cited in paragraph 120 above.

          135. The Court would observe, however, that the applicable international humanitarian law contains provisions enabling account to be taken of military exigencies in certain circumstances.

          Neither Article 46 of the Hague Regulations of 1907 nor Article 47 of the Fourth Geneva Convention contain any qualifying provision of this type.  With regard to forcible transfers of population and deportations, which are prohibited under Article 49, paragraph 1, of the Convention, paragraph 2 of that Article provides for an exception in those cases in which “the security of the population or imperative military reasons so demand”.  This exception however does not apply to paragraph 6 of that Article, which prohibits the occupying Power from deporting or transferring parts of its own civilian population into the territories it occupies.  As to Article 53 concerning the destruction of personal property, it provides for an exception “where such destruction is rendered absolutely necessary by military operations”.

          The Court considers that the military exigencies contemplated by these texts may be invoked in occupied territories even after the general close of the military operations that led to their occupation.  However, on the material before it, the Court is not convinced that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations.

          136. The Court would further observe that some human rights conventions, and in particular the International Covenant on Civil and Political Rights, contain provisions which States parties may invoke in order to derogate, under various conditions, from certain of their conventional obligations.  In this respect, the Court would however recall that the communication notified by Israel to the Secretary‑General of the United Nations under Article 4 of the International Covenant on Civil and Political Rights concerns only Article 9 of the Covenant, relating to the right to freedom and security of person (see paragraph 127 above); Israel is accordingly bound to respect all the other provisions of that instrument.

          The Court would note, moreover, that certain provisions of human rights conventions contain clauses qualifying the rights covered by those provisions.  There is no clause of this kind in Article 17 of the International Covenant on Civil and Political Rights.  On the other hand, Article 12, paragraph 3, of that instrument provides that restrictions on liberty of movement as guaranteed under that Article “shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant”.  As for the International Covenant on Economic, Social and Cultural Rights, Article 4 thereof contains a general provision as follows:

          “The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”

          The Court would observe that the restrictions provided for under Article 12, paragraph 3, of the International Covenant on Civil and Political Rights are, by the very terms of that provision, exceptions to the right of freedom of movement contained in paragraph 1.  In addition, it is not sufficient that such restrictions be directed to the ends authorized;  they must also be necessary for the attainment of those ends.  As the Human Rights Committee put it, they “must conform to the principle of proportionality” and “must be the least intrusive instrument amongst those which might achieve the desired result” (CCPR/C/21/Rev.1/Add.9, General Comment No. 27, para. 14).  On the basis of the information available to it, the Court finds that these conditions are not met in the present instance.

          The Court would further observe that the restrictions on the enjoyment by the Palestinians living in the territory occupied by Israel of their economic, social and cultural rights, resulting from Israel's construction of the wall, fail to meet a condition laid down by Article 4 of the International Covenant on Economic, Social and Cultural Rights, that is to say that their implementation must be “solely for the purpose of promoting the general welfare in a democratic society”.

          137. To sum up, 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 wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order.  The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments.

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          138. The Court has thus concluded that the construction of the wall constitutes action not in conformity with various international legal obligations incumbent upon Israel.  However, Annex I to the report of the Secretary‑General states that, according to Israel:  “the construction of the Barrier is consistent with Article 51 of the Charter of the United Nations, its inherent right to self‑defence and Security Council resolutions 1368 (2001) and 1373 (2001)”.  More specifically, Israel's Permanent Representative to the United Nations asserted in the General Assembly on 20 October 2003 that “the fence is a measure wholly consistent with the right of States to self‑defence enshrined in Article 51 of the Charter”;  the Security Council resolutions referred to, he continued, “have clearly recognized the right of States to use force in self‑defence against terrorist attacks”, and therefore surely recognize the right to use non‑forcible measures to that end (A/ES‑10/PV.21, p. 6).

          139. Under the terms of Article 51 of the Charter of the United Nations:

          “Nothing in the present Charter shall impair the inherent right of individual or collective self‑defence 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.”

          Article 51 of the Charter thus recognizes the existence of an inherent right of self‑defence 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.

          The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory.  The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self‑defence.

          Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.

          140. The Court has, however, considered whether Israel could rely on a state of necessity which would preclude the wrongfulness of the construction of the wall.  In this regard the Court is bound to note that some of the conventions at issue in the present instance include qualifying clauses of the rights guaranteed or provisions for derogation (see paragraphs 135 and 136 above).  Since those treaties already address considerations of this kind within their own provisions, it might be asked whether a state of necessity as recognized in customary international law could be invoked with regard to those treaties as a ground for precluding the wrongfulness of the measures or decisions being challenged.  However, the Court will not need to consider that question.  As the Court observed in the case concerning the Gabčíkovo‑Nagymaros Project (Hungary/Slovakia) , “the state of necessity is a ground recognized by customary international law” that “can only be accepted on an exceptional basis”; it “can only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions have been met” (I.C.J. Reports 1997, p. 40, para. 51).  One of those conditions was stated by the Court in terms used by the International Law Commission, in a text which in its present form requires that the act being challenged be “the only way for the State to safeguard an essential interest against a grave and imminent peril” (Article 25 of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts;  see also former Article 33 of the Draft Articles on the International Responsibility of States, with slightly different wording in the English text).  In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.

          141. 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.

          142. In conclusion, the Court considers that Israel cannot rely on a right of self‑defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall resulting from the considerations mentioned in paragraphs 122 and 137 above.  The Court accordingly finds that the construction of the wall, and its associated régime, are contrary to international law.

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          143. The Court having concluded that, by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, and by adopting its associated régime, Israel has violated various international obligations incumbent upon it (see paragraphs 114‑137 above), it must now, in order to reply to the question posed by the General Assembly, examine the consequences of those violations. 

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          144. In their written and oral observations, many participants in the proceedings before the Court contended that Israel's action in illegally constructing this wall has legal consequences not only for Israel itself, but also for other States and for the United Nations;  in its Written Statement, Israel, for its part, presented no arguments regarding the possible legal consequences of the construction of the wall.

          145. As regards the legal consequences for Israel, it was contended that Israel has, first, a legal obligation to bring the illegal situation to an end by ceasing forthwith the construction of the wall in the Occupied Palestinian Territory, and to give appropriate assurances and guarantees of non‑repetition. 

          It was argued that, secondly, Israel is under a legal obligation to make reparation for the damage arising from its unlawful conduct.  It was submitted that such reparation should first of all take the form of restitution, namely demolition of those portions of the wall constructed in the Occupied Palestinian Territory and annulment of the legal acts associated with its construction and the restoration of property requisitioned or expropriated for that purpose;  reparation should also include appropriate compensation for individuals whose homes or agricultural holdings have been destroyed. 

          It was further contended that Israel is under a continuing duty to comply with all of the international obligations violated by it as a result of the construction of the wall in the Occupied Palestinian Territory and of the associated régime.  It was also argued that, under the terms of the Fourth Geneva Convention, Israel is under an obligation to search for and bring before its courts persons alleged to have committed, or to have ordered to be committed, grave breaches of international humanitarian law flowing from the planning, construction and use of the wall.

          146. As regards the legal consequences for States other than Israel, it was contended before the Court that all States are under an obligation not to recognize the illegal situation arising from the construction of the wall, not to render aid or assistance in maintaining that situation and to co‑operate with a view to putting an end to the alleged violations and to ensuring that reparation will be made therefor. 

          Certain participants in the proceedings further contended that the States parties to the Fourth Geneva Convention are obliged to take measures to ensure compliance with the Convention and that, inasmuch as the construction and maintenance of the wall in the Occupied Palestinian Territory constitutes grave breaches of that Convention, the States parties to that Convention are under an obligation to prosecute or extradite the authors of such breaches.  It was further observed that “the United Nations Security Council should consider flagrant and systematic violation of international law norm[s] and principles by Israel, particularly . . . international humanitarian law, and take all necessary measures to put an end [to] these violations”, and that the Security Council and the General Assembly must take due account of the advisory opinion to be given by the Court. 

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          147. Since the Court has concluded that the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to various of Israel's international obligations, it follows that the responsibility of that State is engaged under international law.


          148. The Court will now examine the legal consequences resulting from the violations of international law by Israel by distinguishing between, on the one hand, those arising for Israel and, on the other, those arising for other States and, where appropriate, for the United Nations.  The Court will begin by examining the legal consequences of those violations for Israel.

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          149. The Court notes that Israel is first obliged to comply with the international obligations it has breached by the construction of the wall in the Occupied Palestinian Territory (see paragraphs 114‑137 above).  Consequently, Israel is bound to comply with its obligation to respect the right of the Palestinian people to self‑determination and its obligations under international humanitarian law and international human rights law.  Furthermore, it must ensure freedom of access to the Holy Places that came under its control following the 1967 War (see paragraph 129 above).

          150. The Court observes that Israel also has an obligation to put an end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory.  The obligation of a State responsible for an internationally wrongful act to put an end to that act is well established in general international law, and the Court has on a number of occasions confirmed the existence of that obligation (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 149;  United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 44, para.  95;  Haya de la Torre, Judgment, I.C.J. Reports 1951, p. 82).

          151. Israel accordingly has the obligation to cease forthwith the works of construction of the wall being built by it in the Occupied Palestinian Territory, including in and around East Jerusalem.  Moreover, in view of the Court's finding (see paragraph 143 above) that Israel's violations of its international obligations stem from the construction of the wall and from its associated régime, cessation of those violations entails the dismantling forthwith of those parts of that structure situated within the Occupied Palestinian Territory, including in and around East Jerusalem.  All legislative and regulatory acts adopted with a view to its construction, and to the establishment of its associated régime, must forthwith be repealed or rendered ineffective, except in so far as such acts, by providing for compensation or other forms of reparation for the Palestinian population, may continue to be relevant for compliance by Israel with the obligations referred to in paragraph 153 below.

          152. Moreover, given that the construction of the wall in the Occupied Palestinian Territory has, inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court finds further that Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned.  The Court would recall that the essential forms of reparation in customary law were laid down by the Permanent Court of International Justice in the following terms:


 

          “The essential principle contained in the actual notion of an illegal act  - a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals  - is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.  Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear;  the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it  - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.”  (Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 47.)

          153. Israel is accordingly under an obligation to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory.  In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered.  The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered  any form of material damage as a result of the wall's construction. 

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          154. The Court will now consider the legal consequences of the internationally wrongful acts flowing from Israel's construction of the wall as regards other States.

          155. The Court would observe that the obligations violated by Israel include certain obligations erga omnes.  As the Court indicated in the Barcelona Traction case, such obligations are by their very nature “the concern of all States” and, “In view of the importance of the rights involved, all States can be held to have a legal interest in their protection.”  (Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.)  The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self‑determination, and certain of its obligations under international humanitarian law.

          156. As regards the first of these, the Court has already observed (paragraph 88 above) that in the East Timor case, it described as “irreproachable” the assertion that “the right of peoples to self‑determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character” (I.C.J. Reports 1995, p. 102, para. 29).  The Court would also recall that under the terms of General Assembly resolution 2625 (XXV), already mentioned above (see paragraph 88),

          “Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self‑determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle . . .”

          157. With regard to international humanitarian law, the Court recalls that in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, it stated that “a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity' . . .”, that they are “to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (I.C.J. Reports 1996 (I), p. 257, para. 79).  In the Court's view, these rules incorporate obligations which are essentially of an erga omnes character.

          158. The Court would also emphasize that Article 1 of the Fourth Geneva Convention, a provision common to the four Geneva Conventions, provides that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”  It follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with.

          159. Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation  not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.  They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.  It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self‑determination is brought to an end.  In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.

          160. Finally, the Court is of the view that the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.

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          161. The Court, being concerned to lend its support to the purposes and principles laid down in the United Nations Charter, in particular the maintenance of international peace and security and the peaceful settlement of disputes, would emphasize the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli‑Palestinian conflict, which continues to pose a threat to international peace and security, to a speedy conclusion, thereby establishing a just and lasting peace in the region.

          162. The Court has reached the conclusion that the construction of the wall by Israel in the Occupied Palestinian Territory is contrary to international law and has stated the legal consequences that are to be drawn from that illegality.  The Court considers itself bound to add that this construction must be placed in a more general context.  Since 1947, the year when General Assembly resolution 181 (II) was adopted and the Mandate for Palestine was terminated, there has been a succession of armed conflicts, acts of indiscriminate violence and repressive measures on the former mandated territory.  The Court would emphasize that both Israel and Palestine are under an obligation scrupulously to observe the rules of international humanitarian law, one of the paramount purposes of which is to protect civilian life.  Illegal actions and unilateral decisions have been taken on all sides, whereas, in the Court's view, this tragic situation can be brought to an end only through implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973).  The “Roadmap” approved by Security Council resolution 1515 (2003) represents the most recent of efforts to initiate negotiations to this end.  The Court considers that it has a duty to draw the attention of the General Assembly, to which the present Opinion is addressed, to the need for these efforts to be encouraged with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and the establishment of a Palestinian State, existing side by side with Israel and its other neighbours, with peace and security for all in the region.

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          163. For these reasons,           The Court,           (1) Unanimously,            Finds that it has jurisdiction to give the advisory opinion requested;

          ( 2) By fourteen votes to one,         Decides to comply with the request for an advisory opinion;
 

in favour:   President Shi;  Vice‑President Ranjeva;  Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;

          against:   Judge Buergenthal;

          (3) Replies in the following manner to the question put by the General Assembly:

          A. By fourteen votes to one,

The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law;

in favour:  President Shi;  Vice‑President Ranjeva;  Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;

          against :  Judge Buergenthal;

          B. By fourteen votes to one,

          Israel is under an obligation to terminate its breaches of international law;  it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion;

in favour :  President Shi;  Vice‑President Ranjeva;  Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;

          against :  Judge Buergenthal;

          C. By fourteen votes to one,

          Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem;

in favour :  President Shi;  Vice‑President Ranjeva;  Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;

          against :  Judge Buergenthal;

          D. By thirteen votes to two,

          All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction;  all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention;

in favour :  President Shi;  Vice‑President Ranjeva;  Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;

          against :  Judges Kooijmans, Buergenthal;

          E. By fourteen votes to one,

          The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.

in favour :  President Shi;  Vice‑President Ranjeva;  Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;

          against :  Judge Buergenthal.

            Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this ninth day of July, two thousand and four, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary‑General of the United Nations.

  

                                                                                               (Signed) Shi Jiuyong,

                                                                                                               President.

   

                                                                                        (Signed) Philippe Couvreur ,

                                                                                                               Registrar .

 

 

 

          Judges Koroma, Higgins, Kooijmans and Al‑Khasawneh append separate opinions to the Advisory Opinion of the Court;  Judge Buergenthal appends a declaration to the Advisory Opinion of the Court;  Judges Elaraby and Owada append separate opinions to the Advisory Opinion of the Court.

 

 

                                                                                                                  (Initialled) J.Y.S.

 

 

                                                                                                                  (Initialled) Ph.C.

NotES

1 United Nations, Treaty Series, Vol. 75, No. 973.

2 Ibid ., Vol. 1125, No. 17512.

3 See Carnegie Endowment for International Peace, The Hague Conventions and Declarations of 1899 and 1907 (New York, Oxford University Press, 1915).

4 E/CN.4/2004/6.

5 A/ES‑10/248.”

Documents:

International Court of Justice (ICJ) Ruling on the Israeli Security Barrier ("Wall")

International Court of Justice (ICJ) Ruling on the Israeli Security Barrier ("Wall") II

International Court of Justice (ICJ) Ruling on the Israeli Security Barrier ("Wall") III

International Court of Justice (ICJ) Ruling on the Israeli Security Barrier ("Wall") IV

This document is at Zionism and Israel Information Center - Historical Documents and References

General History of Zionism - Zionism and the Creation of Israel


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