25 February 2004

The General Assembly decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to urgently render an advisory opinion on the following question:

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 the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?

A/RES/ES-10/14

8 December 2003

On Monday morning, 23 February 2004, the 15 judges of the International Court of Justice (ICJ) filed into the Peace Palace at The Hague and started the three-day hearings that could determine the ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’. The ICJ was seised by a UN General Assembly resolution (adopted by 90 votes against 8 with 74 abstentions) in December 2003 that sought an advisory opinion on the legality under International law of this ‘wall’ (referred to as a ‘security fence’ by Israel, and as an ‘apartheid wall’ by Palestinians). The non-binding advisory opinion of the ICJ will almost surely take weeks if not longer to come out. Israel (the party that is building the ‘wall’ sub judice) has refused to attend the hearings or make any oral representations lite pendente. Claiming that the ICJ lacks jurisdiction and competence, it has only filed a written submission. The USA and many EU States have also questioned the wisdom of involving the world’s highest court in what they view as a political conflict - and not a juridical issue. In fact, and since its inception in 1946, the ICJ has come out with 24 advisory opinions - some of them quite sensitive too.

During the three-day hearings, with Judge Shi presiding, 44 UN members submitted arguments to the Court, and 14 countries or organisations spoke out. The central issue underlying most of the arguments dealt with the question of whether the ‘wall’ that Israel is constructing breaks international human rights and international humanitarian laws.

But let me recap first on the physical realities of this ‘wall’. Once built in its entirety, it will be 440 miles long. Although referred to as a ‘wall’, it is in part concrete and in part barbed wire - with trenches, watchtowers and live wire in some places. The first phase has already been completed by Israel, the ongoing second phase will be around 150 miles long, and then the third phase would complete its construction. Israel claims that it needs to erect this ‘wall’ in order to defend itself against Palestinian suicide bombers and thereby prevent further Israeli deaths. It also claims that this ‘wall’ is reversible and can be dismantled within the context of an overall future resolution of the Israeli-Palestinian conflict.

However, it is not that simple, is it? For one, this wall is not being built on what is referred to as the Green Line boundaries that separate Israel from a future Palestinian state. In other words, this ‘wall’ skirts the 1948-49 armistice lines that existed prior to the Israeli occupation in June 1967 of East Jerusalem, the West Bank and the Gaza Strip. Instead, what this construction does is grab further Palestinian land in its attempt to envelop many of the [illegal] Israeli settlements that have been built on Palestinian lands during the 37-year occupation of Palestinian territories. In so doing, it not only gobbles up more Palestinian land, but also in fact separates scores of Palestinians (in their tens of thousands) from their livelihoods - their spouses and families, farmlands, schools, hospitals, workplaces or sanctuaries. Besides, how can Israel claim that this ‘wall’ is reversible when it made the same claim about the settlements once it started constructing them some thirty years ago? Were they not also meant to be temporary and reversible, but have steadily become permanent fixtures for 400,000 settlers within Palestinian territory, and constitute today a major impediment toward regional peace?

According to UN estimates, Israeli barriers and infrastructure projects prior to the construction of the ‘wall’ had already created fifty disconnected Palestinian pockets in the West Bank. Later, as the design of the ‘wall’ was coming into view, the World Bank estimated that it might well isolate 250,000 to 300,000 Palestinians - more than 10% of the population - and that it might effectively annex up a further 10% of West Bank land. When the Israeli government published its proposed map for the construction of the ‘wall’, it became evident that this construction would cut the West bank into 16 isolated enclaves, confined to just 42% of the West Bank. As the Israeli sociologist Baruch Kimmerling wrote, ‘Israel has helped turn Palestinian communities into dungeons.’ In a nutshell, this ‘wall’ disembowels any Palestinian quest for independence, and renders much less possible the future creation of a sovereign, viable and contiguous Palestinian state.

In fact, the ‘wall’ has already claimed some of the most fertile Palestinian lands and extended Israeli critical control over the water resources and aquifers that lie within Palestinian land. This renders Palestinian lives on Palestinian land even more untenable. Indeed, Jordan’s own forceful submission to the ICJ belies the [legitimate] concern of this small and economically challenged Hashemite country. Jordan fears that the creation of those enclaves and the dispossession of further Palestinians would either result in their mass transfer by Israel into Jordan, or else that many of them would voluntarily flee into Jordan and contribute to a demographic influx that the Jordanian economy simply cannot handle today.

So in the final analysis, and given that the advisory opinion of the ICJ is not binding, what could be the possible motivation behind this hearing and what possible outcome(s) could it then have over the ‘wall’ in particular and the conflict in general?

For one, and should the opinion of the ICJ advise that the ‘wall’ is illegal under all norms of International law, this could well be a moral victory for Palestinians and all those supporting their legal position. It therefore would re-centre ipso facto the legal context of the Israeli-Palestinian conflict, by reminding the occupier [Israel] that it must abide by its obligations under International law and international conventions toward the occupied [Palestinians].

Besides, a moral victory is not to be dismissed cursorily! Although it is an advisory opinion and not a judgment {since both sides have not given their consent to referral}, it could constitute the first step toward international sanctions or an international boycott of Israel that many countries and NGO’s have been calling for in the past years. After all, are there not similarities with the ICJ ruling in 1971 that South Africa’s apartheid presence in Namibia was illegal? Equally importantly, this advisory opinion - were it to confirm the illegality of the ‘wall’ - would also affirm one of the great advances of international humanitarian law in moving away from Clausewitz’s concept of military necessity as Kriegraisen. Otherwise said, the idea that the aims of war justify using any means considered necessary to achieve them would no longer apply. The ICJ would thus be affirming that the concept of military necessity is ultimately nugatory of international humanitarian law. Furthermore, such an advisory opinion could underline the principle of status quo ante whereby Israel’s illegal geographic and demographic changes of Palestinian occupied land would yet again be deemed illegal under International law.

Would any of this happen though? Would an advisory opinion favourable to the Palestinian case - as argued by the battery of international and Palestinian jurists and lawyers in The Hague this week - make any concrete difference on the ground?

Not likely! In fact, it is quite possible that PM Ariel Sharon’s government would not heed to any advisory opinion from an international tribunal affiliated to a body [the UN] that Israel views with scorn or suspicion. Besides, with massive and vocal grassroots polarisation in Israel against this hearing, the Sharon government cannot act - assuming it ever wants to do so!

This helps me draw two parallel conclusions. No less a personality than Noam Chomsky, author of Hegemony and Survival: America’s Quest for Global Dominance, has endorsed one conclusion whereby the legal opinion of the ICJ would highlight the political realities of the region. Indeed, the solution to the Israeli-Palestinian does not lie at The Hague but in Washington DC. If the US Administration - perhaps the incumbent one with its disputatious Roadmap to Peace - wishes to see peace prevailing in the Middle East and also witness the populist tide turning in its favour amongst Arabs and Muslims world-wide, it needs to ensure the establishment of a viable Palestine next to an equally secure Israel within the context of a two-state solution. Any real chance for a political settlement depends on the USA, but the only way the USA can enact such a solution is by recognising that the occupation of Palestinian lands must come to an end. Indeed, ending the occupation would render the purpose of this ‘wall’ obsolescent and would further mow down drastically (but by no means fully since there are misguided men and women whose frustration and hopelessness in any society leads them wrongly and criminally to become ticking bombs and suicide bombers) terror and death. After all, as Chalmers Johnson, author of Blowback on political violence, wrote, ‘Terrorism by definition strikes at the innocent in order to draw attention to the sins of the invulnerable.’

Does Israel deserve peace and security? Yes, and yes again! Israelis too are unquestioningly entitled to live in peace and security in their homes and cities. They should not experience the numbing fear and dread that permeates their societies and envenoms their lives today. But achieving peace and security cannot be done at the expense of occupying and subjugating another people. Fortitude must be reconciled with sensitivity. Building walls cannot do it; deconstructing them can do it!

The stock market investor Warren Buffett once remarked, ‘Should you find yourself in a chronically leaking boat, energy devoted to changing vessels is likely to be more productive than energy devoted to patching leaks.’ This statement carries with it less-than-cryptic political overtones! Applying it to this conflict, I would say, ‘When faced with the consequences of a malevolent occupation, it is better to end the occupation rather than try to sustain it and wreak death and suffering both upon the occupier and the occupied parties! In such a case alone, law and politics would no longer need to clash anymore!