Statement of Judge Abdul G. Koroma, former Justice of the International Court of Justice
In the Advisory opinion (AO) it rendered on 9th July 2004, responding to the request submitted by the General Assembly (GA), the International Court of Justice (ICJ) confirmed the responsibility of the United Nations (UN) for Palestine, stating, inter alia, that:
Your body, your Committee, the Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP)8is one such body specifically created by the GA and requested by into recommend a programme of implementation to enable the Palestinian people to exercise their inalienable right to self-determination, national independence and sovereignty. I note that one of the objectives of the committee is to contribute to the attainment of a comprehensive, just and lasting solution of the question of Palestine in accordance with international law. The issue which explains my presence here on this occasion.
Elaborating further on the responsibility of the UN for Palestine, the Court stated as follows:
The Court further opined that:
Thus spoke the court- the supreme Judicial Organ of the United Nations, as well as one of its main organs. By doing so, the court lent its judicial authority to the purposes and principles laid down in the Charter, in particular the maintenance of international peace and security and the peaceful settlement of disputes. The court called on the United Nations as a whole but in particular on the General Assembly and the Security Council to bring the Israeli-Palestinian conflict, which continues to pose a threat to international peace and security, to a speedy conclusion, thereby establishing a just and lasting peace in the region.
As stated earlier and as distinguished delegates are aware, an advisory opinion functions to provide legal advice to the body that requests it. But even when it exercises its advisory jurisdiction as opposed to its contentious jurisdiction, in making its determination, the Court applies identical principles of international law as it enjoined to do even when sitting in its Advisory capacity. It was against this background that the court having applied the relevant principles of international law, namely, article 2(4) of the UN Charter relating to the prohibition of the use or threat of the use of force, the inadmissibility of the acquisition of territory by the threat or use of force as enshrined in General Assembly Resolution 2625 (1970); the Hague Regulations of 1907, and the Fourth Geneva Convention of 1949, made the following findings that;
1. Israel’s construction of the wall in the Occupied Palestinian Territory, including in and around Jerusalem, and its associated regime are contrary to international law;
A. The construction of the wall …on the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law.
B. Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with
paragraph 151 of this Opinion;
D. All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation. while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention;
E. The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion.
In,,synthesis, the Court found that the construction of the wall violated several fundamental principles of international law, first and foremost the principle of the inadmissibility of the acquisition of territory through the use of or threat of the use of force; the right to self-determination of the Palestinian people, human rights and humanitarian law. These are principles which are recognised as jars cogens , peremptory norms of international law, the violation of which entails very serious consequences both for the State which is primarily in breach, as well as for the international community as a whole as constituted by the UN.
On the issue of self-determination of the Palestinian people, the Court took the view that “the route of the wall is designed to change the demographic composition of the Occupied Palestinian Territory, including East Jerusalem, by reinforcing the Israeli Settlements “illegally established on the Occupied Palestinian Territory. The Court was also of the view that “the route chosen for its wall gives expression in loco to the illegal measures taken with regard to Jerusalem and the settlements, as deplored by the Security Council. That the building of the wall contributed to the “further alterations to the demographic composition of the Occupied Palestinian Territory “through the departure of Palestinian populations from certain areas”, as this could create a fait accomipli that could well become permanent, in which case it would be tantamount to de facto annexation of the territories. In effect, the wall severely impedes “the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligations to respect that right.”
Thus, in the view of the Court, the construction of the wall and the annexation activities carried out by the Occupying Power in the Occupied Territory were not only illegal per se, but were also in violation of the right of self-determination of the Palestinian people. This latter finding by the court is also of the utmost importance. As distinguished delegates are aware, the right of a people to self-determination is not only enshrined in the UN charter but it is also one of the fundamental contributions made by this organisation to contemporary international law; it is intended not only to protect but to allow vulnerable people to determine their own destiny, including the establishment of an independent state.
Another seminal finding made by the Court was that given the nature and the importance of obligation breached by the construction of the wall, all States are under obligation not to recognise the illegal situation resulting from that construction.
The Court further held that the construction of the wall also involved the violation of several provisions of the Fourth Geneva Convention, and it stressed that all States are also under obligation to ensure compliance by Israel with International Humanitarian Law as embodied in the Convention”.
Based on these legal findings, the Court called on the GA and the SC to consider what further action is required to bring to an end the illegal situation arising from the construction of the wall taking due account of the Advisory Opinion.
It is now ten years since the Court delivered its Advisory Opinion based on the law. It was intended to assist the United Nations to make a decision on the problem of Palestine which has been on its agenda since its inception, an issue that the Security Council has determined is a threat to international peace and security. The United Nations Charter calls for the establishment of conditions under which justice and respect for the obligations arising from treaties and other sources of international law should be maintained, as well as to take effective collective measures for the removal of threats to the peace or other breaches of the peace, and to bring about by peaceful means and in conformity with the principle of justice and international law, adjustment or settlement of international disputes. Thus the UN itself recognises that the law is an instrument of solving international disputes.
It is, therefore, very much in the interest of the people of Palestine, in the interest of the Parties to the conflict, and, indeed, very much in the interest of this organisation itself, I have in mind its credibility and continued effectiveness, to ensure that this dispute is resolved in conformity with the principles of justice and international law, and urgently. There is a legal maxim with which distinguished delegates are familiar: that justice delayed is justice denied. The people of Palestine have waited too long for justice and for a just solution. It is hoped that the Advisory Opinion will contribute in bringing about such a solution.
Document Sources: Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP), Department of Public Information (DPI), International Court of Justice (ICJ)
Subject: Access and movement, Closures/Curfews/Blockades, Fence, Gaza Strip, Green Line, Legal issues, Living conditions, Security issues, Separation barrier, Wall
Publication Date: 09/07/2014