Statement of Judge Abdul G. Koroma, former Justice of the International Court of Justice
In the Advisory opinion (AO) it rendered on 9th July 2004, responding to the request submitted by the General Assembly (GA), the International Court of Justice (ICJ) confirmed the responsibility of the United Nations (UN) for Palestine, stating, inter alia, that:
Elaborating further on the responsibility of the UN for Palestine, the Court stated as follows:
“The Court, being concerned to lend its support to the purposes and principles laid down in the United Nations Charter, in particular the maintenance of international peace and security and the peaceful settlement of disputes, would emphasize the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli-Palestinian conflict, which continues to pose a threat to international peace and security, to a speedy conclusion, thereby establishing a just and lasting peace in the region.” (Para. 161.)
The court took into consideration that the object of the request was to obtain from the court an opinion which the General Assembly deemed of assistance to it for the proper exercise of its functions, and on a question of acute concern to the United Nations.
After careful deliberation, including taking into account the Report of the Secretary-General, the Court concluded that the construction of the wall by Israel in the OPT is contrary to international law and stated the legal consequences that are to be drawn from that illegality. The Court considered itself bound to add that the construction must be placed in a more general context: that since 1947, the year when General Assembly resolution 181 (II) was adopted and the Mandate for Palestine was terminated, there has been a succession of armed conflicts, acts of indiscriminate violence and repressive measures on the former mandated territory. The Court emphasized that both Israel and Palestine are under an obligation scrupulously to observe the rules of international humanitarian law, one of the paramount purposes of which is to protect civilian life. Illegal actions and unilateral decisions have been taken on all sides, whereas, in the Court’s view, this tragic situation can be brought to an end only through implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973). The “Roadmap” approved by Security Council resolution 1515 (2003) represented the most recent of efforts to initiate negotiations to this end. The Court considered that it had a duty to draw the attention of the General Assembly, to which the present Opinion is addressed, to the need for these efforts to be encouraged with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and 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.” (Para. 162.)
As stated earlier and as distinguished delegates are aware, an advisory opinion functions to provide legal advice to the body that requests it. But even when it exercises its advisory jurisdiction as opposed to its contentious jurisdiction, in making its determination, the Court applies identical principles of international law as it enjoined to do even when sitting in its Advisory capacity. It was against this background that the court having applied the relevant principles of international law, namely, article 2(4) of the UN Charter relating to the prohibition of the use or threat of the use of force, the inadmissibility of the acquisition of territory by the threat or use of force as enshrined in General Assembly Resolution 2625 (1970); the Hague Regulations of 1907, and the Fourth Geneva Convention of 1949, made the following findings that;
1. Israel’s construction of the wall in the Occupied Palestinian Territory, including in and around Jerusalem, and its associated regime are contrary to international law;
A. The construction of the wall ...on the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law.
B. 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, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with
paragraph 151 of this Opinion;
D. All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation. while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention;
E. The United Nations, and especially the General Assembly and the Security Council, 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.
In,,synthesis, the Court found that the construction of the wall violated several fundamental principles of international law, first and foremost the principle of the inadmissibility of the acquisition of territory through the use of or threat of the use of force; the right to self-determination of the Palestinian people, human rights and humanitarian law. These are principles which are recognised as jars cogens , peremptory norms of international law, the violation of which entails very serious consequences both for the State which is primarily in breach, as well as for the international community as a whole as constituted by the UN.
On the issue of self-determination of the Palestinian people, the Court took the view that “the route of the wall is designed to change the demographic composition of the Occupied Palestinian Territory, including East Jerusalem, by reinforcing the Israeli Settlements “illegally established on the Occupied Palestinian Territory. The Court was also of the view that “the route chosen for its wall gives expression in loco to the illegal measures taken with regard to Jerusalem and the settlements, as deplored by the Security Council. That the building of the wall contributed to the “further alterations to the demographic composition of the Occupied Palestinian Territory “through the departure of Palestinian populations from certain areas”, as this could create a fait accomipli that could well become permanent, in which case it would be tantamount to de facto annexation of the territories. In effect, the wall severely impedes “the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligations to respect that right.”
Thus, in the view of the Court, the construction of the wall and the annexation activities carried out by the Occupying Power in the Occupied Territory were not only illegal per se, but were also in violation of the right of self-determination of the Palestinian people. This latter finding by the court is also of the utmost importance. As distinguished delegates are aware, the right of a people to self-determination is not only enshrined in the UN charter but it is also one of the fundamental contributions made by this organisation to contemporary international law; it is intended not only to protect but to allow vulnerable people to determine their own destiny, including the establishment of an independent state.
Another seminal finding made by the Court was that given the nature and the importance of obligation breached by the construction of the wall, all States are under obligation not to recognise the illegal situation resulting from that construction.
The Court further held that the construction of the wall also involved the violation of several provisions of the Fourth Geneva Convention, and it stressed that all States are also under obligation to ensure compliance by Israel with International Humanitarian Law as embodied in the Convention”.
Based on these legal findings, the Court called on the GA and the SC to consider what further action is required to bring to an end the illegal situation arising from the construction of the wall taking due account of the Advisory Opinion.
It is now ten years since the Court delivered its Advisory Opinion based on the law. It was intended to assist the United Nations to make a decision on the problem of Palestine which has been on its agenda since its inception, an issue that the Security Council has determined is a threat to international peace and security. The United Nations Charter calls for the establishment of conditions under which justice and respect for the obligations arising from treaties and other sources of international law should be maintained, as well as to take effective collective measures for the removal of threats to the peace or other breaches of the peace, and to bring about by peaceful means and in conformity with the principle of justice and international law, adjustment or settlement of international disputes. Thus the UN itself recognises that the law is an instrument of solving international disputes.
It is, therefore, very much in the interest of the people of Palestine, in the interest of the Parties to the conflict, and, indeed, very much in the interest of this organisation itself, I have in mind its credibility and continued effectiveness, to ensure that this dispute is resolved in conformity with the principles of justice and international law, and urgently. There is a legal maxim with which distinguished delegates are familiar: that justice delayed is justice denied. The people of Palestine have waited too long for justice and for a just solution. It is hoped that the Advisory Opinion will contribute in bringing about such a solution.