The United Nations and International Law

International Conference on Middle East Policies
by Pieter H.F. Bekker
November 6, 2004

[The following talk was given by Pieter H.F. Bekker at the International Conference on Middle East Policies, held at Peace Palace, The Hague, on November 6, 2004. Dr. Bekker provides a compelling analysis of the recent ICG ruling against Israel's "separation fence."]

Excellencies, Ladies and Gentlemen:

I have been asked to address the impact of the United Nations and International Law on the Israeli-Palestinian conflict. I do so from my perspective as a former Senior Counsel to Palestine in the advisory proceeding before the International Court of Justice in the case concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory earlier this year.

The case constituted my inaugural involvement with the Middle East conflict. Never before had I studied that conflict closely, from either side. I side not with Israel or Palestine, but with International Law. My belief, as a former United Nations official and ICJ staff lawyer, in upholding the primacy of International Law convinced me to assist Palestine in the Wall Case. My involvement with Palestine has remained limited to the ICJ proceeding, and I wish to emphasize that I speak here today in my individual capacity as an international law specialist.

In stark contrast to what Israel has claimed, and the media have reported, the ICJ case was not about Israel's right to protect itself through a fence, or barrier, or wall, which it is entitled to do as a sovereign state. Rather, the case was about the course, or the route, of the Wall, running for 99% outside recognized Israeli borders and inside Palestinian territory. For this reason, the Wall is an illegal measure purportedly to protect Israelis against suicide bombings. Those suicide bombings rightly were condemned, in no uncertain terms, in not one but two paragraphs of Palestine 's written statement to the ICJ, and again during Palestine's oral intervention before the Court.

On July 9th, the ICJ, by 14 votes to 1, with only the U.S. Judge dissenting, found that Israel's construction of the Wall in the West Bank, including East Jerusalem, violates various international obligations incumbent upon Israel. In the Court's view, the Wall must be dismantled im media tely, and Israel must make reparation for any damage caused. The Opinion spells out the legal consequences flowing from the Wall's illegality for Israel, for other states, and for the United Nations.

The 64-page Opinion is a landmark ruling in more than one respect. I submit that the ICJ's authoritative statements on the applicable international law should change the parameters for any negotiated solution of the conflict between Israel and Palestine. The legal landscape undeniably has changed since July 9th, and in the next half hour I will attempt to explain how and to explore the ruling's potential. First, the ruling was the first-ever judicial pronouncement on a current aspect of the conflict. Second, the ICJ authorized Palestine to participate. Third, the Court concluded that the Palestinian territory concerned is occupied, and not “disputed” as Israel has claimed. Fourth, the ICJ found that the Israeli settlements violate international law. Fifth, the Court concluded that the Geneva Conventions are applicable to the Palestinian territories. Sixth, the ICJ found that international human rights law applies to Palestinians alongside international humanitarian law. Finally, the ICJ rejected Israel's security arguments pertaining to the Wall. After highlighting these various pronouncements of the ICJ in aid of the panel discussion that follows, I will address what the Court's ruling could, and should, mean for the future.

First and foremost, the case signaled the first time that a judicial organ has ruled, based on objective facts documented in United Nations reports, on a prominent aspect of the problem in application of the rules of international law. In the past, only the General Assembly and the Security Council, which are the political organs of the United Nations, had dealt with the conflict with varying results. The ICJ acknowledged that the Security Council, by resolution 1515 of November 19, 2003, had endorsed the so-called “Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict,” but it pointed out that neither the Roadmap nor resolution 1515 contains any specific provision concerning the construction of the Wall. In other words, the ICJ rejected Israel's attempt to create a fact-on-the-ground through the construction of the Wall, to super-impose that fact on the Road Map process, and then to demand that the Palestinians negotiate their way out.

The ICJ had a clear message for its fellow UN organs. It rebuked the Security Council for having repeatedly failed to exercise its primary responsibility for the mainte nan ce of international peace and security as a result of a veto of one of its permanent members. The Court emphasized “the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli-Palestinian conflict, … , to a speedy solution.” It held that “[t]he United Nations … 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 regime, taking due account of the present Advisory Opinion.” Thus, the Opinion constitutes the guideline for future UN action regarding the question of Palestine. The United Nations, being an equal member of the “Quartet” along with the European Union, the Russian Federation and the United States, can no longer defer to the United States for media tion of the conflict. It is no longer “business as usual” after July 9th.

Another highlight of the case is the fact that the ICJ allowed the participation in the proceeding of Palestine, an entity which enjoys Observer status with the UN General Assembly. Over the objection of Israel included in a private letter to the ICJ, the Court gave Palestine a voice at the highest legal stage. This was a victory by itself. Never before in the history of ICJ advisory proceedings had an entity that is not recognized as a state by the United Nations actually participated. Moreover, the Court observed that the existence of a “Palestinian people” for purposes of the right to self-determination is no longer in issue.

Palestine did not waste this unique opportunity. Its legal team before the ICJ consisted of the leading specialists from Oxford and Cambridge, Belgium , Egypt , and myself from The Netherlands. The team comprised Chris tians, Jews, and Muslims. We readily accepted this assignment at reduced fees because we were all convinced that the West Bank Wall is in breach of international law. Our joint desire to serve the administration of international justice brought us together. The legal team did not receive any instructions whatsoever from the Palestinian authorities in Ramallah. Ambassador Dr. Nasser Al- Kidwa, who led Palestine 's ICJ team, wisely let the specialists handle the case.

Another major development represented by the ICJ ruling relates to the fact that it is the first time that an international court has ruled on the status of the territory concerned. The ICJ noted that the territories situated between the line indicated in the 1949 Israel-Jordan Armistice Agreement, the so-called “Green Line,” and the former eastern boundary of Palestine under the League of Nations Mandate of Palestine were occupied territories in which Israel has had the status of occupying power since 1967. It thus explicitly rejected Israel 's position that these territories are “disputed” territory. This point alone should have a major impact on the debate. Since July 9th, neither Israel nor its allies can claim in good faith that the territory that is the subject of the conflict is “disputed,” as opposed to “occupied.” Important legal ramifications flow from this characterization, especially the prohibition on making changes to the status of occupied territory, including by transferring the occupying power's population to the occupied territory.

Perhaps the most remarkable feature of the ruling is the fact that the ICJ explicitly condemned the settlements that Israel has established in Palestinian territory since 1967. Just as in the case of the Wall, Israel justified the settlements as only temporary structures when it began building them some 37 years ago.

While Palestine took a modest approach and did not specifically ask the ICJ to declare the settlements illegal, logic dictated that the Court should come to this conclusion. Palestine had submitted a series of satellite images showing the correlation between the route of the Wall and the Israeli settlements in the West Bank and in East Jerusalem. Based on this objective evidence, the ICJ observed that, within the Closed Area between the Green Line and the Wall, the Wall's “sinuous route has been traced in such a way as to include within that area the great majority of Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem )” and around 80% of the Israeli settlers. The ICJ found that “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem ) have been established in breach of international law.” Even the Am erica n ICJ judge stated that “the segments of the wall being built by Israel to protect the settlements are ipso facto in violation of international humanitarian law.” The settlements being illegal, no wall can lawfully protect them. That should not be difficult to understand for the media, the general public, and, especially, policy-makers

The ICJ recalled that both the General Assembly and the Security Council in their resolutions have referred, with regard to Palestine , to the fundamental rule of the inadmissibility of the acquisition of territory by war, or annexation. The Court considered 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 it would be tantamount to de facto annexation. In the light of this holding, no UN member state can declare, in good faith, that any Israeli settlement constitutes an acceptable fact-on-the-ground, and Israel cannot claim under international law that any land occupied by it since 1967 should be a part of the State of Israel, now or in the future. Thus, Prime Minister Sharon's Disengagement Plan, which was accepted by the Israeli Parliament on October 26th, violates international law to the extent it purports unilaterally to perpetuate the illegal settlements in the West Bank. The July 9th Opinion has removed any doubt on this point.

Faced with these statements of the world's highest judicial organ, the Palestinians should not be forced to negotiate with Israel over what has been declared by 15 independent judges to be plainly illegal. The ICJ referred to the need to achieve “as soon as possible, on the basis of international law, a negotiated solution” to the conflict. Since July 9th, Israel can no longer claim in good faith that the settlements are legal, or at best “disputed,” and that their fate should be negotiated. Why should illegalities be subject to negotiations which according to the ICJ are to proceed “on the basis of international law?” That is the question which should be the focus of the debate.

The ICJ also decided the threshold question of whether the Geneva Conventions are applicable to Israel 's presence in the Palestinian territories. The ICJ found that both the 1949 Fourth Geneva Convention relative to the protection of civilian persons in times of war, to which Israel is a party, and the 1907 Hague Regulations on the Laws and Customs on War on Land, a source that is binding on Israel as customary international law, are applicable to Israel's occupation of the Palestinian territories. The Court noted that numerous resolutions of the General Assembly and the Security Council over some 30 years have affirmed the de jure applicability of the Fourth Geneva Convention. Thus, since July 9th the Israeli Government can no longer claim in good faith that the Geneva Conventions do not apply to Israel 's operations in the Palestinian territories and that the Geneva protections are not available to the Palestinian population. This brings into play the mechanism of the Geneva Conventions, including through authoritative statements by the Conference of the High Contracting Parties to the Geneva Conventions. The Conference should be actively engaged in ensuring compliance with the July 9th ruling.

Another significant legal breakthrough accomplished by the July 9th ruling is the fact that the ICJ confirmed that international humanitarian law is applicable alongside international human rights law that is binding on Israel . Israel has denied that the International Cove nan t on Civil and Political Rights (“ICCPR”), the International Cove nan t on Economic, Social and Cultural Rights (“ICESCR”), and the UN Convention on the Rights of the Child, all of which have been ratified by Israel , are applicable to the Palestinian territories. In Israel 's view, these treaties protect only Israeli citizens. But the ICJ pointed out that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of (in this case inapplicable) provisions for derogation included in those instruments. Thus, since July 9th Israel can no longer claim in good faith that it does not have to apply human rights law to Palestinians. The ICJ's conclusion on this point opens up remedies on the human rights front.

Of particular significance also is the fact that the ICJ was not convinced that the specific course Israel has chosen for the Wall was necessary to attain its security objectives. The Court recognized that the Wall is not just a linear phenomenon, but that it comes with a regime of restrictive measures affecting the Palestinian population. In the Court's view, the Wall, along the route chosen, and its associated regime “gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel .”

After weighing all the arguments, the ICJ ruled that “the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order.” Thus, in the post July 9-situation, the Israeli Supreme Court, to whose decisions the Israeli authorities and the media prefer to refer, can no longer conclude in good faith that the Wall satisfies the necessity criterion under international law. And if the necessity criterion is not satisfied, the twin criterion of proportionality becomes moot.

Israeli Fi nan ce Minister Benjamin Netanyahu wrote in the International Herald Tribune on July 14th that “the court's decision makes a mockery of Israel 's right to defend itself.” The text of the ICJ's Opinion, which devotes some eight paragraphs on four pages to the issue, suggests the opposite. The ICJ explicitly recognized that Israel “has the right, and indeed the duty, to respond [to deadly acts of violence against its civilian population] in order to protect the life of its citizens.” But the Court emphasized at the same time that the “measures taken are bound nonetheless to remain in conformity with applicable international law.” These latter words are routinely and conveniently ignored in reporting about the ICJ case. But they constitute the very essence of the ICJ's ruling and its emphasis on the applicability of International Law. The debate similarly should shift to emphasize the Rule of International Law.

The ICJ concluded that Israel's violations pertaining to the Wall trigger its responsibility under international law, and found inter alia : (1) that Israel must comply with the international obligations it has breached, including its obligation to respect the right of the Palestinian people to self-determination; (2) that Israel im media tely must cease the works of construction of the Wall being built by it in the Occupied Palestinian Territory and dismantle those parts; and (3) that Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned, either by returning the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the Wall, or, if such restitution is materially impossible, to compensate the persons in question for the damage suffered.

With regard to the legal consequences of the Wall's illegality for other states, the ICJ noted that the obligations violated by Israel include certain obligations erga omnes , namely, the irreproachable right of the Palestinian people to self-determination, and certain of Israel's obligations under international humanitarian law, which are to be observed by all states because they constitute intransgressible principles of customary international law. This means that every state in the world has a legal interest in the protection of these principles, which are at the very heart of the Middle East conflict. Presumably, but this remains unclear under international law, this creates a right of action that could be pursued by any state before any international court of competent jurisdiction. Perhaps the time has come for eligible states to initiate a test case, much like the case that Ethiopia and Liberia brought before the ICJ in 1960 following two earlier ICJ Opinions regarding South Africa 's illegal presence in Namibia , the former South-West Africa .

In the Court's view, all states are bound not to recognize the illegal situation resulting from the construction of the Wall in Palestinian territory.

All states also are bound not to render aid or assistance in maintaining the situation created by Israel 's construction of the Wall, and they must see to it that any impediment, resulting from its construction, to the exercise by the Palestinian people of the right to self-determination is brought to an end. While the ICJ did not address the legal consequences for natural and legal persons such as private companies, presumably this holding means that all states also must discourage their nationals and companies of their nationality from assisting in any form in the construction of the Wall, and if any state fails to prevent or correct the illegal actions of its nationals in this respect it may trigger that state's responsibility under international law.

Israel has pointed out, and the media have emphasized, that Advisory Opinions of the ICJ are non-binding. But this non-binding character does not mean that such opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and in arriving at them, the ICJ follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases between sovereign states. An Advisory Opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations. Indeed, Judge Higgins, the British ICJ judge who was critical of the ICJ's Opinion despite voting in favor of it, stated that “the Court's position as the principal judicial organ of the United Nations suggests that the legal consequence for a finding that an act or situation is illegal is the same” as a binding decision of a UN organ acting under Articles 24 and 25 of the UN Charter. (According to Article 25, “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”)

I submit that the fact that the ICJ concluded that the obligations violated by Israel include certain obligations erga omnes , i.e., obligations that are to be observed by all states and which constitute intransgressible principles, or “super rules,” of international law, means that those obligations transcend the non-binding Advisory Opinion that spells out the obligations. In other words, these obligations could be said to apply to Israel and other states independently of the Court's Opinion. One may attack the messenger, but the message itself is indeed intransgressible .

The question may be asked: what next? As a first step toward implementation of the ICJ's Opinion, the UN General Assembly voted 150-6 to acknowledge the ICJ Opinion on July 20th, and decided “to reconvene to assess the implementation of the present resolution.” This represents only the third instance in which the Assembly has decided on follow-up action after receiving an Advisory Opinion. This development means that we now know the legal position regarding core aspects of the Israeli-Palestinian conflict as judicially determined by the ICJ in its Opinion and as acknowledged by the General Assembly, the UN organ with primary responsibility for the question of Palestine . The Opinion thus represents the law at large recognized by the United Nations.

The resolution specifically considered that “respect for the International Court of Justice and its functions is essential to the rule of law and reason in international affairs.” Yet Israel 's Fi nan ce Minister wrote in the International Herald Tribune in reaction to the ICJ's decision that “the government of Israel will ignore it.” This stance means that Israel can no longer claim that it is the only law-abiding democracy in the Middle East , for Israeli law consists of both domestic law and customary international law, the Israeli Supreme Court has ruled. The Advisory Opinion provides a potent instrument in this regard and its potential is unlimited if it is used in the right way. The Opinion is the yardstick for measuring Israel 's compliance with International Law. States by and large comply with the ICJ's rulings not because they are binding or not, but because they want to avoid being regarded as a bad or “rogue” member of the community of nations. In the current circumstances, the ICJ's advisory jurisdiction is Palestine 's best, and perhaps only, weapon, which it could use again with the support of the Arab-African membership of the General Assembly.

A New York newspaper's editorial stated last week in connection with the Israeli Parliament's vote on Mr. Sharon's Disengagement Plan: “In what other Middle Eastern country would a nationalistic general and war hero have to submit any sort of controversial plan to democratic scrutiny?” This statement ignores that the Disengagement Plan violates international law to the extent it purports unilaterally to perpetuate Israeli settlements in the West Bank declared by the ICJ to be illegal. The ICJ's Opinion is a reminder that the Israeli-Palestinian conflict is subject to International Law. The Israeli Government is reminded that the General Assembly's acknowledging resolution demanded, 150-6, not that Israel and all UN member states comply with the non-binding ICJ Opinion, but that they comply with “the legal obligations as mentioned in the Advisory Opinion,” thereby underscoring that the focus should not be on the ICJ as the messenger, but on those legal obligations.

It is interesting, and instructive, to look at the analogies between the Wall Case before the ICJ and the Namibia Case in the 1970s, which eventually resulted in Namibian statehood, even though the analogy as such is disputed among international lawyers. As you may recall, the ICJ issued an Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia in 1971, finding that the presence of South Africa in Namibia was illegal; that South Africa was under obligation to put an end to its occupation of Namibia; and that UN member states had the duty to recognize the illegality of South Africa's presence in Namibia and had to refrain from any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, its presence in Namibia. The wording of the operative paragraph of the Namibia Opinion is very similar to that found in the Wall Opinion. Indeed, Namibia was the blue-print on which Palestine 's case before the ICJ was built.

In the 1950s, the General Assembly requested, and successfully obtained, several ICJ Opinions regarding the South-West Africa situation. The Assembly could request a new Advisory Opinion on the aspect of Israel 's compliance with the ICJ Opinion of July 9th. The Security Council could do the same, based on the statement in the Opinion that “the Israeli-Palestinian conflict … continues to pose a threat to international peace and security.” While it undoubtedly would raise the issue of a veto, it should be kept in mind that the Council has never had occasion to decide whether a draft resolution requesting an Advisory Opinion had been adopted despite the negative vote of a permanent member. It is not at all certain that the United States would just as easily use its veto power as it has in the past regarding aspects of the question of Palestine , because it now has an ICJ ruling to contend with. It is a different ball-game altogether.

Perhaps there is an inter media te solution. While South Africa did not im media tely comply with the wishes of the world community and the World Court , it effectively was isolated through a United Nations boycott. The ICJ Opinion of July 9th does not in and of itself create a cause of action to prohibit private economic interests from assisting in the construction of Israel 's version of the Berlin Wall. It is the task of the UN's political organs to demand that all states and their natural and legal persons refrain from assisting Israel in building its illegal Wall in support of illegal Israeli settlements in Palestinian territory. Meanwhile, individual states should take guidance from the ICJ's ruling and ensure that their obligation not to render aid or assistance in maintaining the situation created by Israel 's construction of the Wall is not frustrated or circumvented by any persons within their jurisdiction. The interference by a state or its nationals with an intransgressible rule of international law arguably provides any other state with a legal interest to see to it that this rule is protected and that the interference is stopped.

In Namibia 's case, the UN Security Council adopted resolutions that not only prohibited UN member states from certain dealings with the South African Government, but also called upon those states to discourage their nationals or companies of their nationality from dealing with South Africa . The Security Council should follow the precedent set by itself and take similar action if Israel continues to construct its illegal Wall and perpetuate the illegal settlements unilaterally. If a similar process is followed in the Wall Case as that pursued in the Namibia Case, it will be difficult for the Powers that be to act differently in the present situation, lest they open themselves up to legitimate criticism of imposing different standards in like situations. The power of precedent should be trusted.

Great lessons can be learnt from history. Namibia gained independence in March 1990, 19 years after the ICJ's Namibia Opinion. There is no reason why the ICJ's Opinion of July 9th should not prove to be a similar catalyst for change in the conflict between Israel and Palestine and will lead, in the shortest possible term, to what the principal judicial organ of the United Nations now has described as “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.” As U.S. Supreme Court Justice Sandra Day O'Connor reminded us a few days ago: “International law is a help in our search for a more peaceful world.” There is ample reason for hope and optimism since July 9th.

from: www.academicsforjustice.org

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