In the Spotlight: 10 years since the ICJ advisory opinion on the legal consequences of the construction of a wall in the oPt – OCHA report

10 YEARS SINCE THE INTERNATIONAL COURT OF JUSTICE (ICJ) ADVISORY OPINION

9 JULY 2014

On 9 July 2004, 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 stated that the sections of the Barrier route which run inside the West Bank, including East Jerusalem, together with the associated gate and permit regime, violated Israel's obligations under international law. The ICJ called on Israel to cease construction of the Barrier 'including in and around East Jerusalem'; dismantle the sections already completed; and 'repeal or render ineffective forthwith all legislative and regulatory acts relating thereto.''¹

Ten years on, 62 per cent of the Barrier has been constructed, including 200 kilometres since the ICJ Advisory Opinion. This report summarizes the continuing humanitarian impact of the Barrier on Palestinian rural and urban communities.

BARRIER COMPONENTS

In 2002, the Government of Israel aproved construction of a Barrier with the stated purpose of preventing violent attacks by Palestinians in Israel. The majority of the Barrier, both constructed and under construction – 445 Km ­consists of fences, ditches, razor wire, groomed sand paths, an electronic monitoring system, patrol roads, and a buffer zone. Land for construction of the Barrier is requisitioned from Palestinian landowners by the Israeli Ministry of Defence through military orders. Most orders are valid for three years and have been periodically renewed.

Around 70 Km of the Barrier both constructed and under construction consists of 8-9 metre high concrete slab segments which are connected to form a wall, particularly in urban areas such as Jerusalem, Bethlehem, Qalqiliya and Tulkarm.

HUMANITARIAN IMPACT: UNDERMINING LIVELIHOODS

PERMITS TO ACCESS LAND

Most Palestinian farmers are now obliged to obtain special permits to access their farming land between the Barrier and the Green Line, which has been declared a 'closed area'³. These permits are difficult to obtain. The approval rate in the northern West Bank is only 50 per cent over the last four years, according to OCHA monitoring.⁴

AGRICULTURAL GATES

For those granted permits, entry to the area between the Barrier and the Green Line is channelled through a gate, designated on the permit. In total, as of the 2013 olive harvest, there were 81 gates designated for agricultural access. However, of these, only nine open daily, and for limited hours. An additional nine open for some day(s) during the week in addition to the olive season. The majority, 63, only open during the olive season, prohibiting year-round access and cultivation.⁵

REDUCED PRODUCTIVITY

The limited allocation of permits, combined with the restricted number and opening times of the Barrier gates, have curtailed agricultural practice and undermined rural livelihoods, forcing farmers to shift from labour-intensive to rain-fed and low-value crops, or to stop cultivation entirely. Olive production has been especially affected, as activities such as ploughing, pruning, fertilizing and pest and weed management need to be carried out at certain fixed periods of the year. Delays or prevention of any of the activities has an adverse impact on olive productivity and value.

Data collected by OCHA in the northern West Bank since 2010 show that olive trees in the area between the Barrier and the Green Line have an approximately 60 per cent reduction in yield compared to their equivalents on the 'Palestinian' side of the Barrier, where the essential activities can be carried out on a regular and predictable basis.⁶

HUMANITARIAN IMPACT: LIVING IN AN ENCLAVE

The intrusive route of the Barrier leaves whole Palestinian communities —approximately 11,000 people — stuck between the Barrier and the Green Line, excluding East Jerusalem. Most residents over 16 years of age are obliged to apply for 'permanent resident' permits just to continue to live in their own homes! Most of these communities lack basic health, education and other services, including shops, obliging residents to pass through a checkpoint to reach workplaces and essential services and to maintain family and social relations with family and friends on the 'Palestinian side' of the Barrier. Their family members and friends require permits to enter these areas with the result that birthday parties, religious holidays and weddings have to be held on the 'West Bank' side of the Barrier. The entry of dairy products, meat and eggs is also restricted and service providers require permits to enter these areas.

Barrier re-routing

Re-routings of the Barrier in recent years have ‘reconnected’ a number of communities isolated between the Barrier and the Green Line to the remainder of the West Bank. In May 2010, a re-routing 'returned' three communities – Ad Dab’a, Wadi Ar Rasha and Ras at Tira, Qalqiliya (nearly 900 people) – thus facilitating their access to services and livelihoods on the ‘West Bank’ side of the Barrier. However, these amendments, which are in compliance with decisions issued by the Israeli High Court of Justice rather than the ICJ advisory opinion, leave the re-routed sections of the Barrier within the West Bank rather than along the Green Line or in Israel.

IMPACT ON EAST JERUSALEM:

FRAGMENTING THE URBAN FABRIC

East Jerusalem has traditionally served as the focus of political, commercial, religious and cultural life for the entire Palestinian population of the West Bank and Gaza Strip, and a hub for essential services.¹⁰ Palestinians from the remainder of the oPt require permits just to access the city, with entry restricted to four of 13 checkpoints around the city. The majority of these have been incorporated into the Barrier, further resticting access and intensifying the separation of East Jerusalem from the remainder of the West Bank.¹¹

Certain Palestinian communities such as Kafr 'Aqab and Shu'fat Refugee Camp, are now located within the Jerusalem municipal boundary on the 'West Bank' side of the Barrier. They need to cross Barrier checkpoints to access the health, education and other services to which they are entitled as Jerusalem residents.¹²

Conversly, some 1,400 West Bank residents living in 17 communities are now isolated on the 'Jerusalem' side of the Barrier but they are denied residency and access to work and services in East Jerusalem.¹³

ICJ OPINION

International Legal Obligations of Member States:

END NOTES

¹ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, para. 141. The full text of the ICJ opinion can be found at:

http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=5a&case=131&code=nnwp&p3=4

²For a comparison of the successive Barrier routes and revisions see OCHA, Five Years after the International Court of Justice Advisory Opinion, July 2009, pp. 10-11. http://www.ochaopt.org/docunnents/ocha_opt_barrier_report july_2009_english_low_res.pdf

³In the northern West Bank, the land between the Barrier and the Green Line was declared closed by military order in October 2002. In January 2009, the closed area designation was extended to all or part of areas between the Barrier and the Green Line in the Salfit, Ramallah, Bethlehem and Hebron districts, and various areas between the Barrier and the Israeli-defined municipal boundary of Jerusalem.

⁴See 'Overview of the 2013 olive season', OCHA Humanitarian Bulletin, December 2013. http://www.ochaopt.org/docunnents/ocha_opt_the_hunnanitarian_monitor_2014_01_20_english.pdf

⁵Ibid. The figures are correct as of the 2013 olive harvest.

⁶See 'Impact of the Barrier on agricultural productivity in the northern West Bank', OCHA Humanitarian Bulletin, February 2013. http://www.ochaopt.org/docunnents/ocha_opt_the_hunnanitarian_monitor_2014_03_19_english.pdf

⁷In certain areas not designated closed, an ID card/prior coordination system operates.

⁸See 'Impact of the Barrier on education' in OCHA Humanitarian Bulletin, April 2013. http://www.ochaopt.org/docunnents/ocha_opt_the_hunnanitarian_monitor_2014_05_21_english.pdf

⁹See 'The case of the Barta'a Enclave', OCHA, West Bank Movement and Access Update, September 2012. http://www.ochaopt.org/docunnents/ocha_opt_nnovennent_and_access_report_septennber_2012_english. pdf

¹⁰Ten percent of hospitals beds in the oPt are located in Jerusalem. The six hospitals in East Jerusalem have served Palestinians for more than 50 years, offering specialized treatment that is not available in the West Bank or Gaza Strip. World Health Organization, 'The Wall: 10 years of dividing Palestinians in the oPt and restricting access to health care,' July 2014. http://www.ennro.who.int/pse/palestine-news/the-wall-10–

¹¹See OCHA, East Jerusalem: Key Humanitarian Concerns, March 2011.

http://www.ochaopt.org/docunnents/ocha_opt jerusalenn_report_2011_03_23_web_english.pdf

¹²Ibid, pp.69-72.

¹³See 'Dislocated communities on the Jerusalem side of the Barrier; concern over forced displacement' in in OCHA Humanitarian Bulletin, March 2013. http://www.ochaopt.org/docunnents/ocha_opt_the_hunnanitarian_monitor_2014_04_29_english.pdf

¹⁴Resolution ES10/14 adopted by the General Assembly of the United Nations on 8 December 2003 at its Tenth Emergency Special Session.