9 March 2005
UN International Meeting on Question of Palestine Hears Legal Analysis of Advisory Opinion of ICJ
(Reissued as received.)
GENEVA, 8 March (UN Information Service) -- The United Nations International Meeting on the Question of Palestine this afternoon heard from panellists who provided a legal analysis of the Advisory Opinion of the International Court of Justice (ICJ) on the construction by Israel of the wall in the occupied Palestinian territory.
One panellist noted that the Advisory Opinion had stated that Palestine, including occupied East Jerusalem and all of the territories east of the Green Line, was a territory under foreign military occupation and that Israeli settlements in the occupied Palestinian territory, including East Jerusalem, had been established in breach of international law.
Another panellist said that the Courts ruling had presented a unique dilemma to Israel's political leadership who could not ignore such an emphatic and high profile opinion, but adherence to the Opinion would be in complete contradiction to their political agenda.
The Courts opinion left no room for interpretation or guessing, stated one panellist. The wall was illegal and should be dismantled and the Court noted that it gravely infringed on a number of rights of Palestinians and constituted breaches by Israel of various obligations under the applicable international humanitarian law and human rights instruments.
A panellist said future would tell what influence, if any, the Advisory Opinion has had in the resolution of the Israeli-Palestinian conflict. The words of the law, even when they were those of the principal judicial body of the United Nations, might seem to be pointless in front of such an exceptional accumulation of mutual grievances and such a long confrontational history. Distrust ran so deep on both sides that the very commonality of the law, which appeared to be the prerequisite of its effective application, was itself more and more evanescent.
When the Meeting reconvenes, at 10 a.m. on Wednesday, 9 March, it will hold a plenary session on the theme The responsibility of governments and intergovernmental organizations in upholding international law.
VAUGHAN LOWE, Professor of Public International Law at All Souls College, Oxford, said that the Advisory Opinion of the International Court of Justice in the case concerning the legal consequences of the construction of the wall in the occupied Palestinian territory gave rise to important questions. Had the situation of Palestine been treated as a political matter demanding compromise, rather than a legal matter demanding the vindication of rights, and if so, why? Who should decide whether it was appropriate for the Court to make legal declarations in the midst of a complex and volatile political conflict? What criteria should be applied in order to reach the decision?
The answers given by the Court affirmed its role within the United Nations structure, and the relevance of international law in international relations. The implications for the use by States of the United Nations were serious. The Court had affirmed that its Advisory Opinion role lay within the structure of the United Nations system, and that, in principle, it was for United Nations organs to decide whether or not they needed the Courts advice. The Opinion was sought by the General Assembly, acting under the Uniting for Peace resolution. The Court might not have accepted the case, had the United States not vetoed Security Council resolutions on Palestine. A range of United Nations reports on Palestine provided an adequate, and probably indispensable, factual basis upon which the Court could base its Opinion. The Court could and would discern and rule upon legal questions that arose in political disputes. Arguments that an Advisory Opinion would interfere with the political process, including the Road Map, did not persuade the Court. The Israel-Palestine question was not a purely bilateral matter; it was of direct concern to the United Nations.
The Court had affirmed legal principles of fundamental importance to Palestine. Among other things, there were legal rights and duties involved in the Palestinian question, and not only interests and aspirations to be bargained for. Palestine was a territory under foreign military occupation; Palestine included occupied East Jerusalem and all of the territories east of the Green Line; Israeli settlements in the occupied Palestinian territory, including East Jerusalem, had been established in breach of international law; the wall and its associated regime created a fait accompli that could become permanent, which would be tantamount to de facto annexation; and Israel had violated obligations under humanitarian law, including the prohibition on deportations and transfers of civilian populations and on the destruction of civilian property, and had unlawfully impeded liberty of movement and rights to work, to health, to education, and to an adequate standard of living.
MICHAEL BOTHE, Professor of Law and President of the German Association for International Law in Frankfurt, said the battle about Palestine had not only been a political or military one, it had also been a legal battle since the League of Nations had taken over by placing Palestine under the Mandates System. Legal instruments had been relevant for the fate of Palestine and its population, parties to that conflict had buttressed their political interests by legal arguments. Legal designs had been developed for the purpose of solving the conflict. On the other hand, the role of law had been challenged in the proceedings before the Court. Thus, it was important to recall the role of international law at the outset of a legal analysis of some of the points, which the Court addressed in its opinion.
The question asked by the General Assembly related to the consequences of the construction of the wall. That formulation was understandable in the light of the fact that there had already been a number of utterances by the political organs of the United Nations as to the illegality of the construction. Yet, the Court could not possibly address the consequences of that illegality without reviewing its reasons. That was indeed the way in which the Court approached its task. In doing so, the Court had addressed, clarified and developed a number of important issues of international law in general and as they related to Palestine in particular -- thus fulfilling with great distinction its noble task as the principal judicial organ of the United Nations.
The opinion of the Court was very important, for the international legal order for the Palestinian people, as well as for peace in the Middle East. The Court continued to adopt a restrictive stance in the interpretation of rules legitimizing the use of force or measures asserting de facto unilateral control. It thus strengthened the role of peaceful, negotiated settlements. The Court recognized that a number of aspirations formulated by the representatives and allies of the Palestinian people were well founded in law, and that a number of grievances of the Palestinian people were indeed violations of international law. Frustration was an obstacle to peace. If Israel did what followed from the Opinion, namely, if it destroyed the existing parts of the wall and desisted from further construction, it would relieve many frustrations and bitterness, which stood in the way of peace. By clarifying questions on the status of the territory, the Court also facilitated, as it had often done in the past, a solution based on a genuine accommodation of conflicting interests by mutual concessions.
AVNER PINCHUK, Lawyer at the Association for Civil Rights in Israel in Tel Aviv, said the severity of the human rights violations that were inherent to the barriers construction was reflected by the enormous amount of time the issue had taken up in his Associations litigation work over the last year. The Courts ruling had presented a unique dilemma to Israel's political leadership who could not ignore such an emphatic and high profile opinion, but adherence to the Opinion would be in complete contradiction to their political agenda. The political leadership in Israel had tended, at first, to dismiss the Courts Opinion. Prime Minister Sharon had declared in response to the Opinion: We have our court and we are committed to abide by its ruling, thus declaring the Courts Opinion as irrelevant.
In its response, submitted 10 days ago, the State emphasized the non-binding nature of the Opinion. In addition, the State claimed that the Opinion was only a secondary source of international law. However, the State recognized, at least in rhetoric, the Courts status as an important international tribunal, and, therefore, presented its detained position regarding the Opinion and its legal ramifications. The States principal claim was that the whole Opinion was flawed since it was based on paltry, outdated and inaccurate evidence, especially as regard the route of the barrier. As a result of Israel's decision not to submit its arguments before the Court, the opinion, said the State, was based on unbalanced factual information and on a partial picture of the regional situation, which formed the background for the construction of the barrier. Furthermore, the State claimed, since the opinion was issued, the route of the barrier was substantially revised, and, therefore, the findings of the opinion were no longer relevant to the new route.
ANIS KASSIM, Lawyer and Member of the Palestinian Defence Team to the International Court of Justice, based in Amman, Jordan, said that the Court had ruled that the occupied Palestinian territory included East Jerusalem. It clearly said All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying power. The Israeli expansionist policies were better reflected in its territorial designs for Jerusalem. Soon after Israeli armed forces secured their control over West Bank and East Jerusalem in the June 1967 war, they immediately began implementing such policies. In spite of the voluminous United Nations resolutions against Israels actions and legislation involving Jerusalem, Israel went ahead with its policies with no consideration to the world community's attitude. What compounded the problem and fed Israels intransigence was the supportive position of the United States.
The Courts Opinion left no room for interpretation or guessing. The wall was illegal and should be dismantled. The Court noted that it gravely infringed on a number of rights of Palestinians; and the construction of such a wall accordingly constituted breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments. The Court had noted that Israel argued that the wall's sole purpose was to enable it to combat terrorist attacks, that it was a temporary measure, that it did not annex territories, that it was not a border and that it did not change the status of the territory in any way. However, it was obvious that the Court was not impressed by any of Israels apparent defences. The Court had pointed that the infringements resulting from the construction of the wall included the restriction on the free movement of Palestinians, the serious repercussions for agricultural production, and the restriction on access to schools, clinics, workplaces and water wells. All of these measures violated human rights laws.
PIERRE DARGENT, Professor of International Law at the Catholic University of Louvain, Thomas More College, Louvain-la-Neuve, Belgium, said the fact that the Court dealt with the question of halting future constructions under the notion of cessation, rather than under the duty to comply with existing obligations, suggested the importance given to the acts that occasioned the question of the General Assembly. That act was considered to be an ongoing Israeli project, which encompassed past, present and future constructions. In the Advisory Opinion, it was clear that the Court did not limit its analysis of facts and law to the sections of the wall that had already been build, but took the question of the General Assembly as relating to a construction project, be it partly or entirely achieved. Since important sections of the wall had actually already been built by the time the General Assembly requested the Advisory Opinion, it was speculation to ask whether the mere intent of building such a wall, with all its preparatory planning, could have been considered as a wrongful act. One could be tempted to consider that if future constructions had to be halted on the basis of cessation, it was because the intent of implementing that project in the future was itself wrongful.
Future would tell what influence, if any, the Advisory Opinion has had in the resolution of the Israeli-Palestinian conflict. The words of the law, even when they were those of the principal judicial body of the United Nations, might seem to be pointless in front of such an exceptional accumulation of mutual grievances and such a long confrontational history. Distrust ran so deep on both sides that the very commonality of the law, which appeared to be the prerequisite of its effective application, was itself more and more evanescent.
MAHMOUD HMOUD, First Secretary of the Permanent Mission of Jordan to the United Nations in New York, said that despite the huge campaign mounted to prevent the Court from making pronouncement on the merits of the issue, the Court was successful in proving that law prevailed and that its voice could be heard. For the first time in the history of the Palestine question, a judicial body was able to consider a legal dimension of the question, which would hopefully guide the world community and parties to the peace process in their quest for peace in the Middle East. The main significance of the advisory opinion was that it was a pronouncement by an authoritative body on the rules of international law and the obligations of States under such a law. For States, including Israel, carrying out their international law obligations was not a matter of choice; rather, it was a question of adhering to the rule of law.
Despite the strong message by the Court and the international community, Israel still maintained that the wall in occupied Palestinian territory was a lawful measure of self-defence. It had declared that, in reaction to its High Court rulings, it was going to amend the route of the wall and make it closer to the Green Line; taking into account elements of necessity, proportionality and Palestinian humanitarian needs. Hopefully, the United Nations and the international community would assume their responsibilities as laid out in the advisory opinion to ensure compliance. There was a new optimism regarding the resumption of the peace process. However, any part of the wall that remained in the occupied Palestinian territory was an obstacle to peace. It was hoped that the new developments on the peace process would contribute to the implementation of the Advisory Opinion, which would truly allow for the existence of two States, Palestine and Israel, living peacefully side by side.
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