"As is" reference - not a United Nations document
3. The Court is competent, under both the United Nations Charter and the ICJ Statute, to answer the question put to it by the General Assembly following the report of the UN Secretary-General dated 24 November 2003, which found Israel not to be in compliance with Assembly resolution ES-10/13 of 21 October 2003. That resolution, which was adopted by a vote of 144-4, demanded that Israel stop and reverse its construction of the Wall. Security Council action on the matter of the Wall was blocked by a veto. The Assembly is authorized to request an opinion on any legal question without limitation. The request concerns the international legal aspects of Israel’s construction of the Wall in the OPT, and only such aspects. The referral resolution was validly adopted by a majority of the UN Member States voting on the matter (90-8). The number of abstaining and non-voting States does not affect the legal validity of the referral resolution.
4. The subject-matter of the request falls squarely within the Assembly’s powers and activities. The Assembly has a long-standing interest in the situation in Palestine, dating back to Mandated Palestine and its adoption of resolution 181 (II) in 1947 partitioning it.
5. No request for an advisory opinion from any competent UN organ has ever been refused by the ICJ.
6. While the Court’s advisory jurisdiction is discretionary, there are no “compelling reasons” preventing the ICJ from giving the requested advisory opinion in this case. The question put to the ICJ is both urgent and relevant, and is likely to have a practical and contemporary effect on the work of the United Nations relating to the situation in Palestine. The giving of an advisory opinion does not depend on the consent of any particular State, and no State can prevent the giving of an opinion. The request does not concern a contentious dispute between two UN member States. Where the Court has been asked to characterize a particular form of behavior with respect to the provisions of treaty and customary international law, the Court is performing a task which is essentially judicial. The Court’s Opinion is given not to States, but to the UN General Assembly. The Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs. As a rule, the ICJ will not question the propriety of the requesting organ’s action or its motives. An independent and impartial pronouncement by the ICJ on the legal consequences of Israel’s construction of the Wall is in no way incompatible with the pursuit of negotiations on final status issues.
7. The request does not ask or require the ICJ to pronounce itself on Israel/Palestine boundaries. In order to answer the question the ICJ needs only to take account of the fact that the Wall is being built by Israel in the OPT, including in and around East Jerusalem, beyond the Armistice Line of 1949 (the “Green Line”). The essential facts are simple: wherever the precise boundaries of the OPT lie, there is no doubt that the greater part of the Wall has been built by Israel well inside occupied Palestinian territory. The facts upon which the ICJ can rely in responding to the Request are of public record and are well-documented, including in United Nations reports.
II. THE FACTS
A. FACTUAL CONTEXT
8. Palestine was until 1917 an undivided part of the Ottoman Empire without separate status. It was subsequently occupied by Britain and became a British Mandate under the League of Nations mandate system in 1923. UN General Assembly resolution 181(II) of 29 November 1947 incorporated a plan for the partition of Palestine into two States (one Arab and one Jewish), for economic union between them, and for the internationalization of Jerusalem. After Britain withdrew from Palestine in May 1948, hostilities broke out which led to Armistice Agreements of 1949. Since the June 1967 War, Israel has been in occupation of all Palestinian areas beyond the Green Line, including the West Bank and East Jerusalem.
9. The Wall that is being built by Israel in the OPT, including in and around East Jerusalem, is the culmination of more than three decades of Israeli policies and practices, leading to the de facto annexation of large areas of Palestinian territory, especially areas in which there is a heavy concentration of Israeli settlements built since 1967. The Wall cannot be understood except in the context of such longstanding, unlawful policies and practices.
10. Israel has been engaged in the colonization and annexation of the Palestinian territory under its occupation since 1967. Israel has done so through the illegal acquisition of territory and the illegal transfer of parts of its population, the institutionalization of a separate structure of life and dual system of law and other measures designed to change the demographic composition of the OPT, including in particular in East Jerusalem. Such measures have resulted in the seizure of some 42 percent of the OPT by Israel. Israel has appropriated land in the OPT for Israeli settlements, thereby creating conditions for violence within the OPT. Successive Israeli governments have pursued policies of de facto annexation by extending territorial jurisdiction to the OPT. Israel has even declared its de jure annexation of East Jerusalem over the objection of the international community, including the UN Security Council and the General Assembly.
11. The humanitarian crisis being faced by the Palestinian people has been fundamentally aggravated by Israel’s construction of the Wall in the OPT, as the expropriation of land, the obstruction of movement and the isolation of Palestinian cities and villages from one another further exacerbate the dire socio-economic conditions in the OPT and deepen the frustration and despair of the Palestinian population.
B. THE WALL AND ITS REGIME AND EFFECTS
12. The Wall is not just a barrier. It consists of a whole regime, composed of a complex physical structure as well as practical, administrative and other measures. It is being constructed almost entirely in the OPT, including in and around East Jerusalem, in departure from the Green Line. It encircles entire Palestinian communities, including Qalqiliya, a city of 41,000 inhabitants, in walled, Bantustan-like enclaves. If completed, it will wall-in the majority of the Palestinian population. The Wall regime undermines Palestinian capacity for sustainable livelihood. It makes the viability of a Palestinian State and the implementation of the “two State” solution practically impossible.
13. Israel’s decision to establish a permanent barrier in the “seam area” between the West Bank and Israel dates back to April 2002. The total length of the Wall once completed is estimated to be 788 kilometers. The Wall will be constructed in several phases, which are well-documented in United Nations reports, including the report by Secretary-General Kofi Annan of 24 November 2003. Of the total length of all phases, only 6 percent of the Wall will be located within 100 meters of the Green Line, and almost entirely in the OPT.
14. Construction of the initial phase of the Wall, running some 186 kilometers from the northwest edge of the West Bank, near the village of Salem, to the Israeli settlement of “Elqana” in the central West Bank was mostly completed in late July 2003. A second phase of the Wall was approved by the Israeli Cabinet on 1 October 2003. Three sections of that phase, including concrete wall extensions in and around East Jerusalem, are currently under construction at an accelerated pace. In March 2003, the Israeli Prime Minister also announced plans for the construction of a wall running along the Jordan Valley in the eastern part of the OPT.
15. The route of the Wall weaves in and around Occupied East Jerusalem. Sections of the Wall in East Jerusalem, Abu Dis, Qalqilya, Tulkarem, Nazlat Issa and Salem are 8 meters high and constructed of concrete. Thus far, approximately 9 km of the Wall, including some 2 km in East Jerusalem, is constructed of concrete and lined with watch towers.
16. Of the completed sections of the Wall built in the OPT, 41 km of the Wall are within 100 m of the Green Line; 3 km are between 100 m and 200 m of the Green Line; 17 km are between 200 m and 1000 m of the Green Line; and 124 km are between 1000 and 8000 m from the Green Line.
17. The majority of the Wall complex, consisting of multiple components, varies in width between 30 and 100 meters. Overall, the physical Wall complex is integrated into a larger system of barriers, including natural topographical features, a road network, fixed checkpoints, “flying” checkpoints, dirt mounds, cement blocks, and gates on secondary roads. Altogether, the system of closure and enclosure is farther reaching than the linear features of the Wall.
18. In October 2003, a series of Israeli military orders established a “Closed Zone” of several kilometers between the Green Line and the Wall and introduced an onerous permit system for Palestinian residents living in and workers accessing this area. Many have been denied permits and most permits are granted for only limited periods of time. Gates along the Wall are closed most of the time, or open only for short fifteen-minute periods and at the discretion of Israeli soldiers. The opening times fluctuate, and procedures are applied haphazardly. Israeli measures and practices are forcing Palestinian residents to reconsider the viability of remaining in areas where freedom of movement does not exist or where permits are not granted to landowners and/or laborers and the ability to pursue a livelihood is thus severely restricted. This situation has already caused displacement among the Palestinian civilian population.
19. If all 788 km of the Wall are completed, more than 43.5 percent, or 2,541 square km, of the West Bank will be located outside the Wall. This will leave 56.5 percent of the West Bank as enclosed Palestinian areas. Of this figure, 2 percent of the West Bank will be inside walled enclaves or double-walled areas. In and around Jerusalem, approximately 336 square km will be outside the Wall over a length of approximately 145 km. The number of Palestinians who will be located outside of the Wall or who will have lost land to the other side of the Wall will be 865,000, or 37.5 percent of the Palestinian population of the West Bank. This amounts to de facto annexation by Israel, coupled with the forced displacement of the occupied population.
20. As detailed in a number of United Nations reports, the Wall creates pockets of isolated and vulnerable population clusters that are severed from basic social services and networks. The Wall is leading to massive internal displacement and migration of the Palestinian population. The Wall is having a significant impact on the social fabric of communities in the OPT, separating communities and detrimentally affecting traditional and kinship ties, marriage, social and religious activities, and further obstructing freedom of movement, especially for women and children. The Wall also is having negative health, education, cultural, and psychological effects on the Palestinian population.
21. The construction of the Wall has resulted in vast property demolition and leveling of land and has caused the destruction of economic resources. For the construction of the first phase of the Wall, more than 5,000 acres of land were razed, including cropland, greenhouses, schools, playgrounds, shops, and animal shelters. More than 100,000 trees were uprooted (of which 83,000 were olive trees), and more than 30,000 meters of irrigation network and water pipelines were destroyed.
22. The Wall is causing severe water access and usage problems for Palestinian civilians and farmers, crippling the Palestinian agricultural economy. Once the western section of the Wall is completed, it is estimated that the annual value of agricultural production in the West Bank will decrease by 22.8 percent, and by a total of 41.7 percent once the eastern section is constructed.
23. There is an undeniable correlation of the route of the Wall to Israeli settlements and access roads. Such settlements have been declared illegal by UN resolutions which are binding on Israel. The constructed and approved sections of the Wall will incorporate approximately 80 percent of the Israeli settler population to the west of the Wall. The route of the Wall facilitates continued settlement expansion. In East Jerusalem, preparations have begun for two new settlements situated to the west of the Wall. The Wall entrenches the pattern of separation created by Israel’s settlements in the OPT and the grid of by-pass roads built to link these settlements with each other and to the territory of the State of Israel. The Wall facilitates the de facto annexation of the expropriated Palestinian land upon which the settlements and the Wall have been illegally constructed.
III. THE LAW
A. THE LAW OF OCCUPATION APPLIES TO ISRAEL’S CONDUCT IN THE OPT
24. That Israel has been, and remains, in occupation of Palestinian territory is internationally uncontroversial. Numerous UN resolutions have confirmed that Israel is in occupation of the OPT and that international humanitarian law applies to the OPT. Consequently, the international law of occupation, and international humanitarian law in general, is applicable to the OPT and to Israel as occupier for so long as its occupation subsists in fact. This occupation has existed since 1967, when Israel took the whole of the Gaza Strip and the West Bank (including East Jerusalem) by force during the June 1967 War, an international armed conflict between Israel, Jordan, Syria and Egypt—all of whom are parties to the Fourth Geneva Convention. The territory concerned represents about one-half of the territory that had been allocated to the Arab State under the partition plan in General Assembly resolution 181(II) of 1947.
25. The justification for the continuing occupation of the OPT is unclear, but appears close to a circular argument: that Israel must maintain a military presence in the West Bank in order to protect its facilities in Israel and the West Bank. However, the military occupation of the territory is not in itself a legitimate military objective.
26. The law of occupation comprises fundamental rules of customary international law embodied in particular in the 1907 Hague Regulations and the Fourth Geneva Convention of 1949. Israel is a party to the four 1949 Geneva Conventions, but not to the Hague Regulations or to the Additional Protocols to the Geneva Conventions. Yet, it is widely accepted that these instruments reflect customary international law and are not limited to relationships as between States parties only. Israel’s revocation of an early military order accepting the applicability of the Fourth Geneva Convention, as a matter of law, to the OPT is without effect. More than two dozen Security Council resolutions adopted over a 30-year period and numerous General Assembly resolutions have confirmed that the Fourth Geneva Convention is applicable to the OPT. In December 2001, the Conference of High Contracting Parties to the Fourth Geneva Convention, expressly declared that the Fourth Geneva Convention is applicable in the OPT and called for ensuring respect of the Convention. The Court need do no more than identify the legal consequences that arise from such parts of the Wall—by far the largest portion of it—as have been built by Israel within Palestinian (rather than Israeli) territory.
27. An Occupying Power does not have sovereignty over the territory subject to its occupation. It merely exercises authority (effective control) over the territory on a temporary basis. The Occupying Power must not deprive the occupied population of their rights under international humanitarian law by taking unnecessary and disproportionate measures in the occupied territory. It must ensure the food and medical supplies and services of the occupied population. It must not transfer or deport protected persons from occupied territory nor deport or transfer parts of its own population into the occupied territory, a practice prohibited by the Fourth Geneva Convention (Article 49), and considered under Additional Protocol I to constitute a grave breach, i.e., a war crime.
28. The law of occupation prohibits purported annexations of occupied territory. Security Council resolution 242 (1967) confirmed the inadmissibility of the acquisition of territory by force and called for the withdrawal of Israel’s armed forces from territories occupied in 1967. Israel’s purported annexation of East Jerusalem was condemned by Security Council resolution 476 (1980). Other resolutions have reaffirmed this position.
B. ISRAEL IS BOUND BY INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW IN RESPECT OF ITS CONDUCT IN THE OPT
29. Notwithstanding Israel’s defiance, Israel’s conduct in the OPT, including with regard to the Wall, is subject to both international humanitarian law and to international human rights law. International humanitarian law (including the law of occupation) applies as a lex specialis, but does not exclude international human rights law, which continues to apply in the OPT. In addition to the norms of international humanitarian law described above, Israel is bound by international human rights in both general international law and in treaty. Israel is a party, in particular, to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Cultural and Social Rights, and the Convention on the Rights of the Child. These treaties must apply not only to Israel’s civilian population but must also benefit the occupied population in the OPT in both times of war and peace.
30. Israel’s position that, while international humanitarian law is not applicable to the OPT, it abides de facto with its humanitarian provisions, rather than international human rights law, has been rejected by the international community, including the UN Human Rights Committee and the International Committee of the Red Cross.
C. ISRAEL’S INTERNATIONAL LAW VIOLATIONS
31. Israel, if it chooses, has both the right to build a security wall on its own territory along the Green Line and the practical possibility and ability to do so. However, there is no lawful basis for the Wall as it is being constructed, operated and planned by Israel along the actual route that it follows, outside Israel’s territory. It is as if one person were to build a wall in a garden belonging to another.
32. Israel has offered no adequate explanation of the justification for the route of the Wall, beyond bald assertions of its security interest. The Wall lacks any justification as a security measure. Israel’s State Comptroller has acknowledged that most of the suicide bombers crossed into Israel through existing checkpoints. The Palestinian leadership has been unequivocal in its condemnation of suicide bombings against civilians in Israel.
33. The Wall is not justified by self-defence. The twin criteria of necessity and proportionality are not satisfied. It is not a general right for a State to take forcible measures outside its sovereign territory in order to prevent the commission of crimes within the State. In any event, Israel’s rights in relation to the construction of the Wall can be no more extensive than those of an Occupying Power.
34. The route of the completed sections of the Wall departs significantly from the Green Line evidently in order to ensure that Israeli civilian settlements or other civilian facilities in the OPT are on the western side the Wall and to facilitate their extension. The illegality of the Israeli settlements in the OPT, including East Jerusalem, has been clearly, consistently, and repeatedly affirmed by States and international bodies, including by the UN Security Council and the General Assembly. The settlements being unlawful, there can be no legal right to protect such settlements or related infrastructure by diverting the course of the Wall away from the Green Line.
35. The segment of the Wall in and around East Jerusalem evidently is designed to protect annexed territory and Israeli civilian settlements in East Jerusalem. Notwithstanding the fact that Israel has no proprietary rights in that area of the OPT and its undertaking in the 1995 “Interim Agreement” between Israel and the PLO not to “take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations,” by encircling Palestinian territory the Wall deprives the Palestinian people of access to their land with a view to changing the legal status of the OPT, especially East Jerusalem. Moreover, the prohibition on changes to the status of occupied territory is a fundamental rule of international humanitarian law and a corollary of the prohibition on the acquisition of territory by force. The Wall has brought about such changes, especially in the OPT’s demographic structure, and renders them more intractable. The cost of the Wall, estimated at NIS 10 million per kilometer, suggests something very different from a temporary security measure.
36. As detailed in United Nations reports, the effects of the Wall and the hardship caused to the civilian population of the OPT violate international law and render it a disproportionate measure. The question of proportionality in fact does not arise, because the requirement that the Wall be a proportionate response to threats facing Israel would arise only if the initial necessity, which must arise from military operations (not merely military occupation), were demonstrated. Israel’s Wall does not surround vulnerable military installations. It surrounds Palestinians. Military necessity is a precondition for the limited rights that Israel enjoys as an occupier. This concept provides no general, blanket justification for actions in occupied territory, but only a justification within the specific provisions of international humanitarian law.
37. The construction and operation of the Wall violates Israel’s obligations under international humanitarian law, in particular for the following reasons:
38. The construction and operation of the Wall violates inter alia the following fundamental human rights of the affected Palestinian population, as enshrined in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Cultural and Social Rights, and the Convention on the Rights of the Child binding on Israel:
39. The seriousness of the violations listed above is aggravated by the fact that the operation of the Wall explicitly discriminates against Palestinians and is applied to Palestinians in a manner that degrades and humiliates them.
40. The Wall gravely infringes the right of the Palestinian people to self-determination as enshrined in human rights treaties to which Israel is a party and as recognized by numerous UN resolutions binding on Israel. It does so particularly in the following respects. The Wall severs the territorial sphere over which the Palestinian people are entitled to exercise their right to self-determination and constitutes a violation of the legal principle prohibiting the acquisition of territory by the use of force, as expressed in Security Council resolution 242 (1967). This resolution unanimously called on Israel to withdraw from the OPT.
41. By the creation of Palestinian enclaves, the discrimination against and humiliation of the Palestinian population, and the creation of unbearable economic conditions, the Wall is having the clear and foreseeable effect of the forced displacement of the Palestinian population into increasingly limited areas regarded as safe and livable for Palestinians. The Wall is part of a policy of reducing and parceling out the territorial sphere over which the Palestinian people are entitled to exercise their right to self-determination, establishing non-contiguous Palestinian areas similar to Bantustans, prohibited by international law.
42. The Wall violates the right of the Palestinian people to permanent sovereignty over their natural resources in the OPT and destroys the economic and social basis of the life of the Palestinian people.
43. The Wall endangers the feasibility of a viable State for the Palestinian people and consequently completely undermines future negotiations based on the “two State” principle.
IV. LEGAL CONSEQUENCES
A. LEGAL CONSEQUENCES FOR ISRAEL
44. The breaches of international humanitarian law and international human rights law resulting from Israel’s construction, operation and/or planning of the Wall in the OPT constitute internationally wrongful acts which are attributable to Israel and entail its responsibility under international law.
45. Israel’s international obligations remain unaffected by the breaches committed by it in connection with the construction, operation and/or planning of the Wall. The applicable legal norms retain their legal value in their entirety.
46. Israel is under obligation immediately to cease all of its internationally wrongful acts arising from the construction, operation and/or planning of the Wall and not to repeat them. Israel has the duty to desist from taking any further action, altering, or purporting to alter, the legal status, institutional structure, geographical and historical character and demographic composition of the zone between the Green Line and the Wall, or which would prejudice the right of the Palestinian people to self-determination. Israel has the further duty to desist from transferring parts of its civilian population into the OPT and from causing the displacement of the Palestinian population in the section of the Wall in the OPT.
47. Israel is under obligation to make reparation for all injury caused to Palestine and the Palestinian people by the construction and operation of the Wall and by the related breaches of international law. Israel must re-establish the situation which existed before the breaches, by restoring the status quo ante. Thus, Israel must dismantle all parts of the Wall in the OPT and restore to its owners all property seized or requisitioned in connection with the construction, operation and/or planning of the Wall in the OPT. It must also rescind all legislative and administrative measures, policies and actions taken by it in relation to the Wall, including the expropriation of land and properties within the OPT. Israel must further rescind all previous Wall-related actions, including by the lifting of any restrictions imposed on the movement of persons and goods and on the operations of humanitarian organizations in the relevant area within the OPT. Israel has a duty to facilitate the safe and immediate return of Palestinians displaced as a result of the construction and operation of the Wall. Israel must compensate the injured Palestinian individuals for their loss of income and profits during the period when they were deprived of their properties as a result of the Wall.
48. In conformity with its obligations under international humanitarian law, Israel is bound (i) to respect and ensure respect for the Fourth Geneva Convention, (ii) to search for and bring before its courts persons alleged to have committed, or to have ordered to be committed, grave breaches of international humanitarian law, and (iii) to take measures necessary to suppress any other breaches of international humanitarian law arising from the construction, operation and/or planning of the Wall.
49. Israel must conform itself to the relevant Security Council resolutions, and heed the will of the international community.
B. LEGAL CONSEQUENCES FOR STATES OTHER THAN ISRAEL
50. As a consequence of Israel’s grave breaches of international law, other States have:
(3) the obligation not to give aid or assistance to maintain such situations.