15 Years Since the ICJ Wall Opinion: Israel’s Impunity Prevails Due to Third States’ Failure to Act

Common Article 1 and Third State Responsibility

On the question of the obligations of third States, the Wall Opinion was unambiguous:

“the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.”[3]

Despite this promisingly clear formulation of the law, third States have largely ignored their obligations under Common Article 1 of the 1949 Geneva Conventions, consistently failing to hold Israel to account for illegal annexation and expansion of illegal settlements in the OPT. Organisations with tax-exempt charitable status in various third States continue to fund settlement infrastructure and even promote violence against Palestinians. Meanwhile third State officials participate in visits to annexed and occupied territory, both in East Jerusalem and in the rest of the OPT.

Since the Wall Opinion was promulgated, third States have also concluded and reaffirmed Free Trade Agreements with Israel that fail to properly distinguish between goods and services originating in ‘Israel proper’ from those made in illegal settlements. It is worth noting, in this regard, the decision by the European Union (EU) and the European Free Trade Association (EFTA) to exclude imports of settlement products from tariff-free treatment in 2005, handed down shortly after the Wall Opinion. But the Israeli Government responded with a special subsidy for reimbursing settlement exporters obliged to pay EU import duty. And Israel continues to label settlement goods as though they originate from Israel itself, placing the burden of identifying settlement goods on European customs officials, rather than on Israel as the exporting country.

In general, and despite a recent opinion by the EU Advocate General confirming the need for labelling of settlement goods, the EU has been lacklustre in opposing imports derived from Israel’s illegal occupation. In 2012, the World Bank estimated that settler exports to the EU totalled 230 million Euros per year.[4] Leaving it to EU consumers to individually decide whether or not to buy illegal settlement produce, and attempting to exclude settlement goods from tariff exemption, is a far cry from the more robust measures that the EU is expected to implement to restrict the import of illegal settlement goods and services.

Despite this bleak picture, there have been some positive steps to implement and act on the Wall Opinion. The Irish Control of Economic Activity (Occupied Territories) Bill 2018 looks set to pass into law, in a move that would criminalise Irish nationals for the import of settlement goods and services from illegal settlements in occupied territories. In November 2018, the Chilean Parliament passed a similar but non-binding resolution, calling on the Government to review the treaties between Chile and Israel to ensure that they distinguish between the OPT, Israeli settlements therein, and the State of Israel, and “include specific reference to the borders of Israel, recognised as the frontiers prior to the June 1967 war” – in accordance with United Nations (UN) Security Council Resolution 2334 (2016).[5]

In addition, some companies have withdrawn from illegal Israeli settlements and infrastructure projects, including French multinational Veolia. The company sold its Israeli subsidiaries and abandoned Israel as a market altogether in 2015, following a global campaign targeting its links to Israel’s occupation and illegal settlements. Irish construction company CRH also withdrew from Israel in 2016 following similar pressure. Similarly, in May and June 2019, Canadian company Bombardier and French company Alstom respectively pulled out from a bid to expand and operate the Jerusalem Light Rail, a tool of Israel’s settlement policy and annexation of Jerusalem. Notably, in March 2016, the UN Human Rights Council adopted a motion establishing a database of businesses operating in or with illegal Israeli settlements in the OPT.[6] The same month, Israeli media reported that “a growing number of Israeli companies operating in the West Bank are moving their facilities to locations within [the Green Line].”[7]

Finally, perhaps the biggest development since 2004, has been the State of Palestine’s ratification of the Rome Statute of the International Criminal Court (ICC) and its May 2018 referral of the Palestine situation to the Court.[8] The State of Palestine’s referral document repeatedly mentions the Wall Opinion, clearly demonstrating the extent to which the authoritative document has come to function as the starting point for any legal analysis of Israel’s prolonged occupation of the Palestinian territory and denial of Palestinians’ inalienable rights.

The Right of the Palestinian People to Self-determination

The Wall Opinion also had the important function of foregrounding the right of the Palestinian people to self-determination. Confirming it to be a right erga omnes,[9] the Court went on to state:

“Under international law, all States have an obligation not to recognise the illegal situation resulting from the construction of the Wall, including an obligation not to assist or maintain the situation resulting from the Wall’s construction. This extends to an obligation to ensure the end of any violations to the Palestinian right to self-determination.”[10]

The principle of self-determination outlines not just the duty of states to respect and promote the right, but also the obligation to refrain from any forcible action which deprives peoples of the enjoyment of such a right. The right of return of Palestinian refugees to their homes and property is therefore inextricably linked to the Palestinian people’s right to self-determination.

Notably, under international human rights law, Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), applicable in the OPT, as recognised by the ICJ in the Wall Opinion, “imposes specific obligations on States parties, not only in relation to their own peoples but vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination”, as confirmed by the UN Human Rights Committee.[11] Yet, for the past 15 years, third States have consistently failed to act against Israel’s illegal construction of the Annexation Wall, despite the ICJ’s recognition that it violates Palestinian self-determination.

Instead, the international community has idly stood by as Israel, the Occupying Power, continues works on the Annexation Wall, expropriates further Palestinian land, exploits natural resources for the benefit of its illegal settler population, and entrenches a regime of racial domination and oppression over the Palestinian people, amounting to the crime of apartheid, and also increasingly recognised as the applicable legal framework. In particular, in 2017, the UN’s Economic and Social Commission for Western Asia (ESCWA) commissioned a report, which concluded “… on the basis of overwhelming evidence, that Israel is guilty of the crime of apartheid” against the Palestinian people, and urging “swift action to oppose and end it.”[12] The ESCWA report contained multiple references to the Wall Opinion, and the ICJ’s reasoning clearly helped to legitimise and support the report’s important conclusions. More recently, in July 2018, the Israeli Parliament (the Knesset) passed the Jewish Nation-State Law, promoting Israeli settlement construction and expansion, and stating that “the right to exercise national self-determination” in Israel is “unique to the Jewish people”, while disregarding the rights of Palestinian nationals. The Jewish Nation-State Law plainly flew in the face of the court’s reasoning in the Wall Opinion and entrenched Israel’s apartheid over the Palestinian people.

Annexation and Fragmentation of the Palestinian Territory and People

The 2017 ESCWA report found fragmentation of the Palestinian territory and the Palestinian people to be the main instrument through which Israel has imposed a regime of apartheid on Palestinians. Since 2002, the Annexation Wall has operated, both de facto and de jure, to illegally annex Palestinian land. This has further entrenched Israel’s apartheid policies and its occupation and colonisation, radically altering the facts on the ground with the intention of making them irreversible. Perhaps most troubling, the Annexation Wall helped lay the groundwork for US President Trump’s highly publicised decision to recognise Jerusalem as Israel’s capital on 6 December 2017, and to relocate the US embassy there on 14 May 2018. The United States (US) under President Trump has been a truly menacing force as far as Palestinian rights are concerned, it has precipitated a clear end to the bipartisan consensus US politics on unequivocal support for Israel.

The fifteen years since the ICJ’s Wall Opinion have seen Israel’s continued fragmentation and annexation of Palestinian territory, in particular in and around occupied East Jerusalem. House demolitions, a restrictive and racially discriminatory permit procedure, and Israel’s onerous ‘centre of life’ regime for Palestinian Jerusalemite residents have all operated to forcibly transfer as many Palestinians as possible from the city. The Annexation Wall has effectively severed Jerusalem from the rest of the OPT. What is more, today some 130,000 Palestinians from East Jerusalem live in Jerusalem neighbourhoods behind the Annexation Wall, in Kufr ‘Aqab, ‘Anata, and Shu’fat refugee camp, separating families in a highly visible extension of Israel’s apartheid regime.

This fragmentation of Jerusalem reflects a broader Israeli policy of fragmenting the Palestinian people into four separate ‘domains’: Palestinians with Israeli citizenship, Palestinian residents of East Jerusalem, Palestinians in the West Bank and Gaza, and Palestinian refugees in the diaspora. While the Wall Opinion does not explicitly mention this fragmentation process, it does clarify the status of East Jerusalem as occupied territory and reaffirms the prohibition on annexation of occupied territory. In this vein, Al-Haq draws attention to the unlawful annexation of West Jerusalem, during the 1948 occupation, which must be similarly condemned internationally for its manifest violations of international law and continued denial of Palestinian rights of self-determination and permanent sovereignty over the City. Thus, the Court’s reasoning continues to provide the starting point for Palestinian and international opposition to Israel’s fragmentation strategy.

The Annexation Wall and its Associated Regime

The Wall Opinion found that:

“…the construction of the wall has been accompanied by the creation of a new administrative régime. Thus in October 2003 the Israeli Defence Forces issued Orders establishing the part of the West Bank lying between the Green Line and the wall as a ‘Closed Area’. Residents of this area may no longer remain in it, nor may non-residents enter it, unless holding a permit or identity card issued by the Israeli authorities. According to the report of the Secretary General, most residents have received permits for a limited period. Israeli citizens, Israeli permanent residents and those eligible to immigrate to Israel in accordance with the Law of Return may remain in, or move freely to, from and within the Closed Area without a permit. Access to and exit from the Closed Area can only be made through access gates, which are opened infrequently and for short periods.”[13]

Israel has maintained and tightened its draconian permit regime, which severely restricts Palestinians’ freedom of movement. For example, Israel has reduced the allocation of permits to farmers to work their lands located behind the Wall. According to HaMoked, “|the approval rate for permits for landowners fell from 76 per cent of applications in 2014, to 28 per cent in 2018 (up to 25 November). Permits issued to agricultural workers declined from 70 per cent and 50 per cent of applications in the same period … The majority of rejections are now based on failure to meet the increasing bureaucratic requirements necessary for permit approval.”[14]

Israel maintains its effective control over the Palestinian territory through mass incarceration of Palestinian civilians. In June 2019, Addameer recorded some 5,250 Palestinian political prisoners held under administrative detention, incarcerated without due process or fair procedure, including 205 child prisoners. Out of 69 Palestinian children who provided Defence for Children International - Palestine (‘DCI-P’) with sworn testimonies in 2017, detailing their experiences following arrest, 49 said they endured physical violence at the hands of Israeli forces:

“The majority of Palestinian child detainees are charged with throwing stones. In addition to physical and psychological abuse during arrest and detention, confessions obtained through coercion or torture are routinely used by military prosecutors to reach a conviction, according to DCIP documentation.”[15]

Israel directly interferes with Palestinian political life and has currently incarcerated without trial, seven members of the Palestinian Legislative Council, thereby directly impeding the democratic process and ensuring that there is no room for the expression of democratic rights and freedoms in Palestine, while quashing any political resistance to the ongoing and rapidly expanding colonisation.

Conclusion

In the fifteen years since the ICJ’s Wall Opinion, the weak responses by third States have effectively given Israel a carte blanche, to remove and erase Palestinian presence in order to transfer in Israeli Jews to Judaize the territory. Meanwhile the prolonged occupation has taken on a permanent and illegal character and the situation now represents a colonisation, annexation, occupation and apartheid, with the latter increasingly considered the dominant legal paradigm for the characterisation of the continuing Nakba and colonisation of Mandatory Palestine. Al-Haq calls on third States to revisit their duties under Common Article 1 of the Geneva Conventions, and to redouble their efforts to ensure that Israel complies with international law, ceases its construction of the illegal Annexation Wall, restores Palestinians to the status quo that existed before and compensates victims. We look forward to a time when the need to commemorate the anniversary of such a damning legal document will no longer be necessary.

[1] "Israeli Settler Population 1972-2006". Foundation for Middle East Peace. Archived from the original on November 18, 2008: https://web.archive.org/web/20081118071827/http://fmep.org/settlement_info/settlement-info-and-tables/stats-data/israeli-settler-population-1972-2006 accessed 08.07.2019.

[2] Statistics on Settlements and Settler Population, B’Tselem, updated 16.01.2019 https://www.btselem.org/settlements/statistics accessed 08.07.2019.

[3] International Court of Justice, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, 2004 ICJ Reports, para. 159.

[4] World Bank, ‘Fiscal Crisis, Economic Prospects: The Imperative for Economic Cohesion in the Palestinian Territories. Economic Monitoring Report (EMR) to the AHLC’, p. 4 (September 2012), quoted in 'Trading Away Peace: How Europe helps sustain illegal Israeli settlements', APPRODEV et al, October 2012, https://reliefweb.int/sites/reliefweb.int/files/resources/TradingAwayPeace_0.pdf accessed 08.07.2019.

[5] ‘Not Just Ireland: Chilean Congress Calls for Boycott of Israeli Settlements’, Haaretz, 29.11.2018 https://www.haaretz.com/israel-news/.premium-chilean-congress-follows-ireland-and-calls-for-boycott-of-israeli-settlements-1.6700267 accessed 08.07.2019.

[6] ‘Israel slams U.N. body's call for 'blacklist' of settlement companies’, Reuters, 24.03.2016, https://www.reuters.com/article/us-israel-palestinians-un-idUSKCN0WQ2LM accessed 08.07.2019

[7] ‘Israeli Companies Leaving West Bank in Apparent Response to Boycott Pressure’, Haaretz, 27.03.2016 https://www.haaretz.com/israel-news/.premium-israeli-firms-increasingly-leaving-west-bank-1.5423112 accessed 08.07.2019

[8] Referral by the State of Palestine Pursuant to Articlesl3(a) and 14 of the Rome Statute, 15.05.2018 https://www.icc-cpi.int/itemsDocuments/2018-05-22_ref-palestine.pdf accessed 08.07.2019.

[9] Advisory Opinion, para 88.

[10] Advisory Opinion, para 159.

[11] UN Human Rights Committee, General Comment No. 12: Article 1, The Right to Self-determination of Peoples, Adopted at the Twenty-first Session of the Human Rights Committee on 13 March 1984, para. 6.

[12] ‘Israeli Practices towards the Palestinian People and the Question of Apartheid’, Palestine and the Israeli Occupation, Issue No. 1 ESCWA, 2017 (subsequently withdrawn from the UN website following diplomatic pressure).

[13] Advisory Opinion, para. 85.

[14] ‘Fewer permits granted to access land behind Barrier’, UNOCHA 18.03.2019 https://www.ochaopt.org/content/fewer-permits-granted-access-land-behind-barrier accessed 08.07.2019

[15] Palestinian children incarcerated at higher rate, abuses routine, DCI Palestine, 18.07.2019 https://www.dci-palestine.org/palestinian_children_incarcerated_at_higher_rate_abuses_routine accessed 08.07.2019.