REF.: 18.2008E 9 July 2008
On 9 July 2004, at the request UN General Assembly, the International Court of Justice (ICJ) issued an Advisory Opinion on “The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.” The ICJ found the construction of the Wall in the Occupied Palestinian Territory (OPT),its associated regime of movement restrictions, land confiscation and property destruction, as well as the Israeli settlements in the OPT, to be in breach of customary international law. Furthermore, the ICJ declared that the facts on the ground created by continued construction of the Wall would be “tantamount to de facto annexation.” The Advisory Opinion therefore held that Israel must cease construction of the Wall, dismantle those parts already constructed in the OPT, and provide remedies to the affected Palestinian civilians. At the same time, the ICJ outlined the legal responsibility of the international community, declaring that it must not recognise or assist in maintaining the illegal situation created by the Wall, and must consider further actions to bring that situation to an end.
Israel, for its part, has acted in direct violation of the Advisory Opinion. Over the past four years, the construction of the Annexation Wall has continued relentlessly, as has the expansion of illegal Israeli settlements in the West Bank, including East Jerusalem, and the associated violations of international human rights and humanitarian law, while remedies for Palestinians have been both limited and rare. Over the same period, the international community has tacitly endorsed the continuation of Israel’s illegal policies and practices in the OPT by conspicuously failing to take action to bring Israel into compliance with international law. An egregious example of this endorsement has been the international community’s acceptance of the deference of the Israeli High Court of Justice (HCJ) to the executive branch of government, which is critically undermining the division of powers considered integral to a democracy. Instead of applying established international legal standards and embodying the role of an independent and impartial judiciary, the court has consistently chosen to support the political motivations of the Israeli government – to annex land, including valuable natural resources, protect illegal settlements and force demographic changes on Palestinian territory that has been targeted for the expansion of Israel as a Jewish State.
Over the last four years, the HCJ has played a central role in Israel’s ongoing disregard for the Advisory Opinion and the legal parameters established therein. Using legal reasoning that distorts or simply ignores well-established norms of international law and flouts the findings of the ICJ, the HCJ jurisprudence has become the ultimate rubber stamp for Isreali policies in the OPT, legitimising Israel’s illegal actions through the veneer of “legal” judgments.
Only nine days before the ICJ released its Advisory Opinion, the HCJ determined, in the Beit Sourik case, that the construction of the Wall in the OPT was legal. It further condoned other violations of international law, including those emanating from the Wall’s associated regime, the presence of settlements and the routing of the Wall to ensure their safety. Despite the Advisory Opinion that followed, the HCJ reaffirmed its position in 2005 in the Ma’arabe case, and directly dismissed the ICJ’s authoritative findings.
Given this approach, the HCJ has also severely limited the ability of human rights lawyers to seek redress for these violations in any meaningful way. By setting the precedent in Beit Sourik and Ma’arabe that the Wall was not illegal and limiting the legal arguments the Court would even consider, the HCJ has eliminated from consideration critical international legal norms that protect the occupied Palestinian population. Human rights lawyers are forced to argue on the restricted terms allowed by the HCJ, including the starting assumption that the Wall is legal. Barred from arguing against the basic question of the Wall's legality – an argument that would be supported by the ICJ's Advisory Opinion – they are left to debate only minor amendments to the route of the Wall, 80% of which is inside the West Bank. Most of the international law that has been accepted and confirmed as applicable to the OPT, by the ICJ and a majority of international actors, is material non-grata for human rights lawyers arguing in front of the Court. The resulting dearth of available legal arguments translates directly into the extremely limited protections offered to the Palestinian individuals and communities these lawyers represent, while at the same time allowing the HCJ to justify Israeli actions in the OPT.
At the same time, the HCJ is currently the only forum in which these complaints may be heard, which leaves human rights lawyers in an ethical bind. They are loathe to walk away from the court when even small gains, such as a change in the route of the Wall, will make an enormous difference in the lives of the people they represent. Yet they recognize that their engagement with the court serves the broader purpose of entrenching its “legitimacy,” and therefore the occupation itself, which clearly results in less protections for the Palestinian population overall.
The HCJ’s continued willingness to apply selectively or simply ignore the basic tenets of international law that have been clearly laid out by the supreme judicial body in the UN system not only undermines the rights of Palestinians, but is a stain on the reputation of the HCJ and strikes a blow to the legitimacy of both the domestic and international legal regimes. It also severely compromises the integrity of the human rights community in Israel and the OPT that is attempting to protect Palestinians from these illegal Israeli policies.
On the fourth anniversary of the Advisory Opinion, and in light of the failure of the Israeli judiciary to provide justice for the occupied Palestinian population, Al Haq therefore calls upon:
All Third State Parties to create as well as act upon existing domestic legislation that will open their jurisdictions to provide fair and balanced access to justice for Palestinians in their domestic courts.
- Ends -