This article has been written by Mr. Omkar Tamhane, a first-year student at Maharashtra National Law University, Mumbai.   

ABSTRACT

This article explores the legal ramifications of Israel’s wall building in the Occupied Palestinian Territory, which began in 2002 under the pretence of security. The United Nations General Assembly led the International Court of Justice to provide an advisory opinion on the subject, which provides a comprehensive examination of the transgressions of international law—particularly international humanitarian law. With an emphasis on the Israel-Palestine conflict, the essay examines the wall’s multifarious effects, emphasizing the resulting violations of human rights and the intricacies of the legal debate.

The legal concerns underlying the case are examined in detail, with a focus on how the right to self-determination, international humanitarian law principles, and international agreements have all been violated. Following a thorough investigation by the International Court of Justice, Israel was found to be the construction’s responsible party. As a result, an urgent cease-work order, disassembly of the project, and payment for damages were issued. The essay also emphasizes how crucial international collaboration is to preventing the recognition or support of such illicit entities.

Finally, the case provides an important example of how international humanitarian law is developing. The court’s advisory judgment is based on the human rights-based principles that govern international law, which emphasize the need for responsibility and reparation in the face of grave crimes. The prospect for stability and peace in the impacted areas emphasizes how important it is to respect international legal norms when dealing with intricate geopolitical disputes.

INTRODUCTION 

In this extant world that we reside in, the security of a Nation State is an inseparable and critical notion for discussion of it’s National Concerns. In a world of rat race, everyone is in a fierce competition with each and every single person in any of the spheres one can possibly think of. The same does stand true in relation to the Nation States in the world. If there exists any difference at all, it would be that of the intensity of the competitiveness that exists. It is imperative that the increased sense of developing your nation than any other is quite the driving force backed by the sense of Nationalism which instils these developmental ideas in nudge towards global betterment. 

Although the world does develop at the evolving pace, it is quite baffling and miserable how this development is impacting the basic fundamentals of Humanity. It is quite distressing to live in a world where we are exposed to human war crimes, human right infringements and many more on frequent daily basis. One such heart-wrenching episode is definitely that of the Israel-Palestine conflict. The situation of the civilians is quite pitiful with the historical and the ongoing sufferings which they have no choice but to endure. 

This article deals with the legal implications of the construction of a wall in the Occupied Palestinian Territory by the Israeli Government which served as a strict boundary causing many further issues to everyone especially the citizens living in the areas surrounding the wall. The construction of this wall was started in 2002. Precisely in June 2002, on the excuse of security, the Israeli government began unilaterally building a wall to divide Palestinians in the occupied West Bank from Israel and occupied East Jerusalem, as well as from Israeli settlements built within the West Bank. The intention behind this action was to enhance Israel’s annexation plans and strengthen its apartheid system over the Palestinian people. It does not surround the occupied West Bank, but rather cuts deep into it, exacerbating Israel’s seizure of Palestinian lands and resources. Acts similar to this one, are indicative of the growing hostility between Israel and Palestine. It is but evident such inculcating hostility also will disturb the structural integrity of the international community, eventually harming the sense of harmony with which exists global peace and security. 

This prompts for an important need to have an analytical discussion on the Human Rights and their violations. Besides identifying these problematic contentions, the intellectuals and the leaders in the World Forums must also make it a pertinent point to critically analyse these infringements and also elaborate upon the remedies which must be administered in scenarios where these violations of International Human Rights materialize especially when it is Inter-States. 

BACKGROUND

The element which the Case Concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory stands as a major legal case heard by the International Court of Justice, the United Nations’ chief judicial authority. The case was quite an important precedent, even though the judgement was delivered in as an opinion on an advisory capacity on the recommendation of the United Nations General Assembly. 

Beginning in 2004, the case presented complicated and delicate questions of human rights, international law, and the Israeli-Palestinian conflict. Israel began building of the wall, with the official objective of preventing terrorist attacks. However, the barrier went far beyond the mutually agreed 1967 borders, penetrating into Palestinian homes and more importantly agricultural regions, harming the lives of thousands of Palestinians.

The Palestinians, with the help of numerous countries and organizations, filed the matter to the International Court of Justice, claiming that the wall’s construction breached international law, including humanitarian law, human rights law, and the principle of self-determination. They argued that the barrier’s route disproportionately violated Palestinian rights, resulting in serious humanitarian and socioeconomic ramifications.

On the other hand, Israel defended its actions, claiming that the wall was a necessary security barrier designed to protect its citizens from terrorist threats. Israel also claimed that the ICJ lacked jurisdiction in the case and that building the wall was an appropriate response to the constant risk of terrorism.

ANALYSIS

The case gave rise an astounding number of legal issues and other questions in general as well, which makes it an important opinion of the International Court of Justice. The pronouncement, as was asked for by the United Nations General Assembly, was provided by the International Court of Justice in a very nuanced manner. The Court to clear any speck of doubt, started by clearly establishing its jurisdiction in the case to provide an opinion. The Court observed that under the Statute of The International Court of Justice it finds the power to administer such an opinion. Article 65(1) of the statute states that

“The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.” 

In accordance to the decision of the United Nations General Assembly on December 8, 2003 which requested for an advisory opinion of the International Court of Justice on the following question, “ What  are  the  legal  consequences  arising  from  the  construction  of  the  wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the  rules  and  principles  of  international law,  including  the  Fourth  Geneva  Convention  of  1949,  and  relevant  Security Council and General Assembly resolutions? ”

The General Assembly derived this power from a certain provision of the Charter of United Nations. The Article 96(1) of the Charter says that, “ The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.” 

The General Assembly exercised this power in the concerned case and asked for an advisory opinion of the Court. 

An important right which was infringed among many was the right to self-determination of people. The Court held that the wall violated the right to self-determination of the Palestinians. The right to self-determination refers to an individual’s ability to choose his own fate. People have the right to choose their own political position and to shape their own economic, cultural, and social progress. The principle which provides the right to self-determination was first introduced in the Atlantic Charter of 1941. Further developments led to the inclusion of this provision in the Charter of United Nations as well. The very first article, ie. Article 1(2) of the Charter of United Nations while outlaying the purposes of the UN precisely expedites that, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”

The International Court of Justice also held that the Israeli activities of construction had also violated the important principles of International Humanitarian Law. It is pertinent to note that the Court held that multiple provisions stood infringed of the Fourth Geneva Convention of 1949 which protects the civilians in situations pertaining to those of war and occupation of territory. 

The Court further observed that Israel was not a party to the Fourth Hague Convention of 1907.  The Court finds that, according to the Convention, such Regulations were prepared “to revise the general laws and customs of war” in force at the time. Since then, the International Military Tribunal at Nuremberg has determined that the “rules laid down in the Convention were recognized by all civilized nations, and were regarded as declaratory of the laws and customs of war.” When considering belligerents’ rights and duties in the conduct of military operations, the Court came to the same conclusions. The Court believes that the articles of the Hague Regulations have become part of customary law, as acknowledged by all parties in the proceedings before the Court. The Court also notes that, under Article 154 of the Fourth Geneva Convention, that Convention supplements Sections II and III of the Hague Regulations. Section III of those Regulations, which addresses “Military authority over the territory of the hostile State,” is particularly relevant in this case.

The International Court of Justice observed in advancement that the action of constructing the concerned wall was also violative of the International Covenant on Civil and Political Rights. The actions restricted the liberty of movement of the citizens residing the area occupied by the Israelites with the exception of Israeli citizens. This is in direct contradiction with the Article 12 of the International Covenant on Civil and Political Rights. The article says that,
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.”

The direct interpretation of the above stated provision is enough to make it imperative that the actions of Israel have violated these provisions. Under the terms of the United Nations Convention on the Rights of the Child and the International Covenant on Economic, Social, and Cultural Rights, Israel’s actions also restricted Palestinians’ access to employment, healthcare, education, and an adequate living wage.

The Court also held that these actions of Israel are also in contravention to some of the resolutions passed by the United Nations General Assembly and the United Nations Security Council. 

The aftermath of these violations leads to the second important topic of this article, which is the State Responsibility of Israel and others states as well. To begin with, it is integral to note that International Court of Justice held that Israel must take responsibility for its actions and the construction of the so-called apartheid wall. The Court also opined that Israel must comply with its international obligations concerning the restitution of the rights of citizens of Palestine. The Court also held that the construction of this wall must cease with immediate effect, the dismantling of the structure must commence and the compensation for all the damages cost must be compensated. 

The Court also guided other states to not recognize such illegal structures and aid or assist in the maintenance of the situation created due the wall’s construction. 

The Court in its conclusion mentioned that it hoped for peace and security in the regions surrounding the disputed area. 

Hence, the analysis of the Court’s opinion makes it clear that the Court finds that Israel’s constructed wall is in violation of not one but multiple provisions under the International Law especially the International Humanitarian Law by facilitating the human right infringements which caused a lot of harm to the grieved people. 

CONCLUSION

The case of construction of the wall by Israel in the occupied Palestinian territory stands as an epitome of the principles enshrined within magnificently descriptive International Humanitarian Laws. The Advisory opinion of the court held a great importance as the court exercises this power with great infrequency. 

It is quite fascinating to note that the area of International Humanitarian Law is an ever-developing field of Law. The principles which govern the International Law are enshrined within the Humanitarian Laws which stem from the idea that all the people in this world must be guaranteed some basic rights like basic standard of living as well as political and social rights. 

REFERENCES

1.  https://www.icj-cij.org/case/131.
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