Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)
International Court of Justice
July 9, 2004
Other International Provisions:
International Court of Justice, Article 65
General Assembly Charter, Articles 10, 11, 12, 14, 24, 92, 96
General Assembly Rules of Procedure, Rule 9(b)
League of Nations Covenant, Article 22
Armistice Agreement between Israel and Jordan, Articles III, V, VI, VIII
Regulations Respecting the Laws and Customs of War and Land, Article 42
United Nations Charter, Articles 2, 51
International Covenant on Economic, Social and Cultural Rights, Articles 1, 4, 6, 7, 10, 11, 12, 13, 14
International Covenant on Civil and Political Rights, Articles 1, 2, 4, 9, 12, 17
Fourth Geneva Convention, Articles 1, 2, 6, 47, 49, 52, 53, 59, 142, 154
Hague Regulations, Sections II, III
Vienna Convention on the Law of Treaties, Articles 31, 32
1878 Treaty of Berlin, Article 62
1994 Peace Treaty between Israel and Jordan, Article 9
Background: In a time of continuing unrest in Jerusalem, Israel began to build a wall in Israel-occupied Palestinian territory. The wall departed from the Armistice Line of 1949. The finished wall would almost completely encircle communities, push residents out of their homes and limit the occupied persons' access to lands, wells and means of subsistence.
Issue and resolution: Is it legal for an occupying force to construct a wall in the occupied territory and, if not, what are the consequences for doing so? The construction of the wall violates international law. Israel, the occupier, must end the illegal act. It must stop building the wall and dismantle the wall that has been built within the occupied territory, repeal or render ineffective all legislative and regulatory acts adopted to support the wall's construction, and make reparations for damage caused to natural or legal persons by the construction of the wall.
Court reasoning: The wall violates the right of peoples to self-determination since it limits the movements of the occupied persons. The wall was part of a practice of populating the occupied territory with persons from the occupier territory, thereby illegally contributing to demographic changes in the occupied territory. The wall limits access to health services, schools, and an adequate standard of living, and therefore violates the economic, social, and cultural human rights of those in the territories. In the case of children, these violations are especially pronounced given Israel’s ratification of the CRC and its clear obligations to respect the human rights of all children under its control.
Excerpts citing CRC and other relevant human rights instruments:
113. As regards the Convention on the Rights of the Child of 20 November 1989, that instrument contains an according to which "States Parties shall respect and ensure the rights set forth in the … Convention to each child within their jurisdiction…". That Convention is therefore applicable within the Occupied Palestinian Territory.
130. As regards the International Covenant on Economic, Social and Cultural Rights, that instrument includes a number of relevant provisions, namely: the right to work (Arts. 6 and 7); protection and assistance accorded to the family and to children and young persons (Art. 10); the right to an adequate standard of living, including adequate food, clothing and housing, and the right “to be free from hunger” (Art. 11); the right to health (Art. 12); the right to education (Arts. 13 and 14).
131. Lastly, the United Nations Convention on the Rights of the Child of 20 November 1989 includes similar provisions in Articles 16, 24, 27 and 28.
134. To sum up, the Court is of the opinion that the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of lsraeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights. They also impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the United Nations Convention on the Rights of the Child. Lastly, the construction of the wall and its associated régime, by contributing to the demographic changes referred to in paragraphs 122 and 133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions cited in paragraph 120 above.
Israel continues to pursue building the wall, despite its consideration of the ICJ opinion, stating that the ICJ is not the appropriate forum for discussing the wall. The path of the wall has changed since the time of the opinion and the new path is claimed to result in "improvement in the consideration of the fabric of life of Palestinian residents." Israel states that it has the right and obligation to build the wall to protect its citizens from terrorism perpetrated by Palestinians. It states that the wall is consistent with international law and Israeli domestic law. Additional information may be found at http://www.seamzone.mod.gov.il/Pages/ENG/news.htm#news49.
CRIN believes that this decision is consistent with the CRC. Where a country has ratified the CRC, it must apply to all children under that country’s control at all times. In this case, Israel’s construction of a security fence to separate and enclose certain areas would be a clear violation of many of the rights contained in the CRC, as recognized by the court in this case. CRIN finds it unfortunate that Israel continues to pursue the construction of a security fence and hopes that the government will re-examine its international obligations to uphold and respect children’s rights as required by the CRC.
(2004) ICJ Rep 136; ICGJ 203 (ICJ 2004)
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