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The political implications of the ICJ-advice on the building of the Israeli Wall

Referring to the fact, that the General Assembly of the UN  by means of the recently with an overwhelming majority [150 for, including the EU-members, 6 against including the USA and Australia and 10 abstinations] taken resolution has followed the advice of the International Court of Justice [ICJ]  dd 9-7  which included the demolition of the Israeli Wall in the occupied Palestinian territories, it of great importance to give a short review of the recent history of the building of the Wall and the referring political-humanitarian implications.

A Recent history:

In June 2002, a month after the ending of the first Israeli military offensive [Operation ''Defensive Shield] in the occupied Palestinian territories, which included a great number of  violations of human rights and war-crimes, the Israeli government started the building of the Israeli Wall, aiming to prevent Palestinian suicide-attacks on Israeli civilians.

1 Geografical route of the Wall

However, soon after the beginning of the contsruction-works  of the Wall it became evident, that the route was not following the so-called Green Line (the official border between Israel and the occupied Palestinian territories), but was cutting deeply in the occupied Palestinian areas.

Seen in the light of a political view this meant the de faco annexation of the occupied Palestinian territories, which as such is a flagrant violation of the in 1967 accepted UN-Security Council Resolution 242, which called on Israel to withdraw from of the in  the june-war of 1967 conquered territories, which included the Palestinian areas.

Moreover, seen in the light of the humanitairain view the route of the Wall accross occupied Palestinian areas implies a serious violation of the human rights of the Palestinian population.

2 Humanitarian implications of the route of the Wall:

In regard to this Wall-building, especially two factors have caused grave humanitarian disasters among the Palestinian population.

In the first place the building of the Wall led to the disowning and destruction of as well agricultural grounds as shops and houses with as a consequence, that thousands of Palestinians were being deprived of their most elementary basic needs, which is not only contrarily with the head-responsibility of Israel, being the occupying power for the safety, the welfare and the well-being of the Palestinian popuplation (4th Geneva
Convention), but also contrarily with article 53 of the 4th Geneva Convention, which prohibits the disowning of possessions of the ґґprotected peopleґґ(people, who are living under an occupation).

The direct consequence of those disownings is moreover en masse departure of the Palestinian population to other areas, which means de facto the expulsion of parts of the Palestinian population, which is a serious violation of the International Law (article 49, 4th Geneva Convention). Another factor of the Wall-building are the so-called enclaves, which implies that Palestinian villages, cities and sometimes areas are partly or
almost totally closed in by the Wall with as direct consequence that because of the very severe control of the Israeli army, the Palestinian population is de facto denied acces to their agricultural grounds, schools and hospitals, which is not only unacceptable, seen from social-humanitarian point of view, but is also a grave violation of the right of freedom of movement for people, living in the occupied territories (article 43 of the
the Hague Convention of 1907 and article 12 of the International Covenant of Civil and Political Rights).

An example of a Palestinian city, made to enclave is Qalqilya (38.000 inhabitants) in which case yet apart from the humanitarian needs of the inhabitants also the inhabitants of several surrounding villages are being made victims because of their economical dependence of Qalqilya.

According to the investigations of the Israeli human rights organisation Bґtselem more than 875.000 Palestinians are depirved from access to their agricultural grounds, hospitals and schools whether by enclaves or by the fact that their agricultural grounds are lying on the other side of the Wall.

3 Settlements

A third main consequence of the building of the Wall is the annexation of 66 of the 124 settlements, which are present in the West-Bank and East-Jerusalem, consisting of 322.800 inhabitants.

Thise settlements, which are founded in occupied Palestinian territories by means of huge Palestinian landdisownings, are illegal according to International Law, which states that it is forbidden to transfer parts of the population from the occupying land to the occupated areas (article 49, 4th Geneva Convention).

Moreiver, the illegality of the settlements in the occupied Palestinian areaґs is also confirmed in 2 UN-Security- Resolutions dd 1979 (nrs 446 and 452) in which Israel was summoned to stop the building of settlements and to dismatnle all already existing settlements in the occupied Palestinian territories.

B International criticism

Of course the building of the Israeli Wall met huge international criticism, not only from the side of international human rights organisations and the Red Cross, but also from the side of a great number of leading politicians, as well regarding the Arabic world and the Third world, as in regard with the EU and the UN Secretary General, Kofi Annan.

At the 21th of october 2003 a resolution was taken by the General Assembly of the UN by which the building of the Israeli Wall was condemned (ES 10/13) Two months later the General Assembly requested in a new resolution (WS 10/14) the International Court of Justice to give an advisory opinion about the real or alleged legitimacy of the building of the Ixsraeli Wall, seen in the light of the rules of International Law.

1 Israeli point of view

The Israeli political defence is judicially being based on the fact of self-defence against Palestinian suicide-attacks against Israeli civilians, in total deniance of the fact, that those suicide-attacks, however rejectable, are the direct consequence of Israelґs refusal to implement resolution 242 and to end the 37 years long occupation and the settlements-policy, despite all international summons to apply the resolutions involved (resolutions 242 and 338). However, the international community doesnґt challenge Israelґs right on
self-defence but the very fact, that the Wall-building is done in occupied Palestinina areas, which is contrarily with the International Law.

This point of view is also reflected in the advice of the International Court of Justice  (ICJ) which, especially stemming from the very fact of the Israeli Wall-building on occupied Palestinian land, concluded that Israel had to dismantle the Wall and moroever had to pay financial compensation for all damage, done to the Palestinina population in regard with this Wall-buidling.

2 Wall-building on the Green Line

Although it seems to be the international concensus, only to condemn the Wall-building inthe  occupied Palestinian areas, but to approve with a Wall alongside the Green Line, I have a different point of view regarding this.

With the building of the Wall on the Green-Line, there is of course no annexation of occupied land, but it means de facto the impossibility for Palestinian people to work in Israel for their elemantery basic needs, which further will enlarge the already existing great poverty.

This is a grave violation of International Law, because  Israel,  being the occupying power is head-responsible for the safety, the wellfare and the wellbeing of the occupated Palestinina civilian-population (4th Geneva Convention)

Moreover Israel has never undertaken any serious or structural economical attempt to improve the economic possibilities and the wellfare of the Palestinian population on the occupied territories, with as result this economic dependence of Israel.

3 Israelґs reaction  of the advice of the ICJ

It is commonly known by now, that Israel has rejected the ICJ-advice with as argument that the Court has no jutisdiction to give an advisory opinion.

Of couse, this argument makes no sense, because this is an advice, done by the highest international judicial institution (with the International Criminal Court) to one of the 4 head-orgnaistaions of the UN, namelu the General Assembly.

C Political pressure on Israel to realize the ICJ-advice

Althought the General Assembly has consented with the advice of the ICJ to take political action (which was also included in the ICJ advice, so urging the General Assembly and the Security Council ґґto consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated rйgimeґґ) by taking the above-named resolution, the General Assembly-resolutions are not legally binding in comtarily with the UN-Security-Council-resolutions). Further seen in the light of the predictable voting-behaviour of the USA, being the most important ally to Israel it is higly unlikely that a Security Resolution makes any chance, because it will almost certainly be rejected because of an American veto.

In this it is perhaps hopeful, that the EU, which was first a strong opponent to the fact that the General Assembly had asked for an ICJ-advice, has unanimously voted in favour of the latest General  Assembly resolution.

It would be a considerable step towards peace, based on the real principles of International Law, when the EU wouldnґt limit her Middle-Eastern policy to condemning words only, but to actually expend her policy to deeds, for example the renouncement of the Trade Association with Israel.

Astrid Essed
Amsterdam (Z-O)
The Netherlands