“Tear down that wall!” The world court and Israel

Eóin Murray
28 July 2004

There are moments, incidents, opportunities in history where a single event galvanises the public mood and makes change possible. The eventual result can be overwhelming: Rosa Parks sitting in a forbidden part of a bus and the civil rights movement; Nelson Mandela walking free from prison and the end of South African apartheid; the IRA’s ceasefires and the Northern Ireland peace process.

Could the International Court of Justice’s ( ICJ ) decision on 9 July 2004 that the construction of Israel’s separation wall across the West Bank is contrary to international law prove equally historic for the people living in the occupied Palestinian territories?

In its non-binding advisory ruling, the court states that “Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated". The ruling was coupled with a recommendation to the United Nations (including the Security Council) to “consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall”.

The immediate Israeli response was to brand the court’s ruling – decided by fourteen votes to one - as “politicising international law”. The first significance of the ICJ decision, then, is not that it will alter the mood or policy of the faltering Ariel Sharon government. Rather, it may be the event which educates the global public about the true “facts on the ground” in the West Bank.

True, the ICJ has no mechanism to enforce its decisions, which are largely symbolic. But it remains a highly respected judicial body and its decisions are grounded in careful legal deliberation. The ICJ decision, in placing international law at the centre of what had been a highly politicised debate and attempting to balance security concerns with human rights, goes as far as possible to remove politics from this emotionally charged issue.

The body of international law, whose authority both Israel and the Palestine Authority recognise, defines agreed standards of behaviour that bind states, political movements, and individuals. Much of it, like the Geneva Conventions, is by now so ingrained in collective understanding as to be regarded as customary. When significant breaches of its standards occur, the international community has an obligation to try to enforce them. The ICJ’s judgment is a reminder that Israel, like other agencies (including of course those of the Palestinians), has a responsibility to uphold international law.

The single dissenting judge was American, Thomas Buergenthal. But even his advisory opinion states: “I share the court’s opinion that international humanitarian law, including the Fourth Geneva Convention, and international human rights law are applicable to the occupied Palestinian territory and must therefore be faithfully complied with by Israel.” The judge continues that the wall raises “serious questions”, but that - essentially on a technical matter - he would not be able to vote with his colleagues.

Thus, with near-unanimity the ICJ agreed that the fourth Geneva Convention (on the protection of civilians in wartime) and other international human rights standards should be applied in the occupied territories. This is a breakthrough - the international community, with the exception of a few well-intentioned, ineffectual motions at United Nations committee level, has previously ignored the role of human rights law in resolving the Israel-Palestine conflict.

The ill-fated “roadmap” of 2002 and its immediate predecessors had scant references to human rights. A new understanding is now emerging: that human rights are essential components of democracy, not luxuries that can be sacrificed in order to achieve it.

But along with the breakthrough comes a challenge. After the ICJ ruling, the international community - particularly the European Union and the United States - faces a stark choice. The ruling clearly declares that the signatories to the Geneva Conventions have a legal obligation to “ensure respect” for them. A failure by the international community to observe this obligation by acting to halt the continued construction of the “annexation wall” will guarantee continued, severe consequences for the 800,000 Palestinians many of whose lands are being appropriated, houses demolished, and communities divided and isolated.

Testing times

The neglect of international law by the international community will also miss the chance to set a vital, timely example to those living in the occupied territories. A debate is currently raging within occupied Palestine as to what the role of the international community should be in resolving the enduring conflict. The militant resistance groups Hamas, Islamic Jihad and the al-Aqsa Martyrs’ Brigade profess disgust at international hypocrisy on human rights, and advocate an “internal” solution without reference to international standards. That solution, at least in the case of Hamas and Islamic Jihad, is to seek an “Islamic state”.

By contrast, large numbers of people in Palestinian civil and political life are working to build a Palestinian state free from occupation and corruption, founded on respect for human rights and democracy. Israeli action is already marginalising this section of society; the world community’s acknowledgement and support – above all, implementation - of the ICJ’s decision would help protect it from further isolation.

The dangerous pressures facing this democratic, liberal component of Palestinian society are palpable on the streets of the Gaza strip. The routine violence of Israeli occupation is now being compounded by infighting between two corrupt pillars of the Fatah movement. The seductive extremism of the militant groups is flourishing under difficult social, economic and political conditions. The continued isolation of more moderate elements will deprive them of the ability to lead, and prevent more young Palestinians to seek a violent solution to the problem. Crimes against humanity, in the form of bomb attacks against Israeli civilians, will be one likely result.

In such desperate circumstances, the International Court of Justice’s decision is a decisive opportunity for the international community to live up to its commitments, and to create a dynamic of forward movement that will echo the earlier, epochal changes in the American South, South Africa, and Ireland. Those on all sides and none who believe in world community, civil society, justice and peace, can invoke the ICJ’s ruling to call on Israel to halt the construction of the “annexation wall” and other internationally illegal actions.

If not now, when?

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