Dismantling the wall (13 July 2004)

Published in Palestine News (Summer 2004)

After five months of deliberation, the International Court of Justice (ICJ) - the highest court of the United Nations - issued its opinion on 9 July that Israel's separation wall is illegal where it encroaches upon the West Bank and that it must be dismantled. It also decided that Israel should pay compensation to Palestinians whose property was damaged or destroyed in its construction.

The degree of unanimity in the court was striking: only one of the fifteen judges, Thomas Buergenthal from the US, voted against these findings, and even he accepted that large parts of Israel’s wall may be illegal (though he argued that the ICJ should not have given its opinion until Israel provided more facts to the court). The British judge, Rosalyn Higgins, supported the findings of the court, taking the still unusual step of disagreeing with her government’s lacklustre position that the ICJ should refrain from give its “unhelpful” opinion.

This was the first time in its 58-year history that the ICJ had given its verdict on Palestine, and it took the opportunity to establish thoroughly and authoritatively the legal framework within which the conflict exists. Ever since 1967, and particularly since the Oslo accords of 1993, successive Israeli governments have disputed that the West Bank and Gaza Strip are "occupied territories" and that the Palestinians are protected by the humanitarian treaties – particularly the Fourth Geneva Convention of 1949 – that establish the rights of people living under military occupation. They have argued that they do not have a legal obligation to grant the Palestinians a right of self-determination, although they may choose to do so out of a spirit of generosity.

The court reviewed the arguments of both sides, but reached its firm conclusions: the West Bank, including East Jerusalem, and Gaza Strip are occupied territory; Israeli settlements built there are illegal, and must be removed; the Palestinians are protected by the Geneva Convention and the full range of human rights instruments; that the Palestinian people has a right to self-determination that Israel must act upon; and that all states have a legal obligation to ensure that Israel acts in compliance with these requirements. Israel and its supporters have long argued in international forums and in the media that there was ambiguity over the status of the Palestinians, and so their actions against them couldn’t be criticised: no longer is that the case. Now you either have to accept that Israel has to act to bring itself into conformity with international law – by allowing Palestinian self-determination and removing the wall inside the occupied territories – or you have to reject the entire framework of international justice and the United Nations.

Unsurprisingly, the Israeli leadership has taken that second course. Ariel Sharon's official spokesman Ra'anan Gissin declared that the court's opinion "will find its place in the garbage can of history". But nobody expected that the Likud would immediately repent for its past actions and start respecting Palestinian human rights once the judges spoke. It remains true that only a minority of cases decided upon by the ICJ since 1946 have been accepted by both of the disputing sides straight after the verdict was pronounced.

However, in almost all cases, the ICJ fundamentally changes the balance of legitimacy: the state judged the wrongdoer is hampered in a myriad of ways from continuing its illegal actions. Its own courts find against it – the Israeli Supreme Court, which already ruled against Sharon’s plans for part of the wall, now has the legal authority to be more comprehensive in its judgements. Foreign corporations decide that it would be unwise for them to do anything that assists the illegal act, for fear of being sued in their home country. And the violating country’s diplomats find themselves confronted with the issue at stake in every international forum, and unable to make headway on their own interests: Israel is now more discredited internationally than ever before. Take the closest example to this one in the ICJ’s history: when the court gave its opinion in 1971 that South Africa’s presence in Namibia was illegal, and that it must end the occupation. South Africa apartheid leaders, like Sharon’s coterie, denounced the court as biased, ill-informed and stupid. The issue though would not die: and South Africa – still then under the racist leadership of P.W. Botha – was forced to accept the UN plan for Namibia in 1988.

The prospects for concerted European – much less US – pressure on Israel to dismantle the wall may look distant. Nevertheless, the argument for international action is more compelling now than ever before. The Palestinian people have turned to the mechanisms of international law, and found them clearly on their side. If the European governments join the Bush administration in ignoring the findings of the ICJ, then who but they are to blame if Palestinians find that the only way to achieve their rights is through the use of violence?