LONDON - The ruling by the International
Court of Justice in The Hague that the "security wall" Israel
is building in the West Bank is illegal marks a major victory for Palestinians.
The ruling is not binding. Officially it is termed only an "advisory
opinion" offered by the court. Israeli officials briefing media while the
court was delivering its opinion declared the judgment would find its way to
the "garbage can of history."
But the "advisory opinion" marks a major moral and diplomatic win
for Palestinians. And it further weakens the diplomatic case both of Israel
and the United States.
The decision will bring a significant setback to the United States in the
Arab world; a U.S. judge was the only one among 15 who delivered a contrary
That the U.S. judge Thomas Buergenthal was acting as American rather than
as judge became evident from the immediate dismissal of the judgment by the
White House. The White House spokesman Scott McClellan said The Hague was not
the "appropriate forum" to decide this issue. Britain backed the U.S.
The legal ruling took on immediate diplomatic color as a result. Israeli justice
minister Yosef Lapid told Army Radio before the ruling that the court in The
Hague consisted of judges "from the European Union who are not suspected
of being particularly disposed towards Israel."
The European Union (EU) takes a public stand far more supportive of Palestinians
than the United States. The EU is the principal donor in the budget of the Palestinian
The Israeli argument that it was up against a court dominated by EU judges
only underlines its diplomatic isolation.
The ruling follows a decision by the Israeli High Court against the path of
construction of the wall north of Jerusalem. That path is leaving many Palestinians
sandwiched between the Green Line as the pre-1967 border is known, and the wall.
Many other Palestinians are being left stranded outside and virtually cut off
But there is nothing else to stop Israelis building the 425-mile long wall
in the West Bank. About 120 miles of the wall, at places actually a fence, has
been completed. The Israelis say it is intended to keep suicide bombers out
of Israel and that it has already demonstrated its success.
Court president Shi Jiuyong of China said construction of the wall "would
be tantamount to de facto annexation of that construction, along with measures
previously taken, thus severely impeded the exercise by the Palestinian people
of its right to self-determination."
The International Court of Justice gave its ruling after five months of deliberation.
The UN General Assembly asked for an advisory opinion last December.
The U.S. judge agreed with the others only to the extent that the court had
a right to give an advisory opinion.
"In its opinion, the Court finds unanimously that it has jurisdiction
to give the advisory opinion requested by the United Nations General Assembly
and decides by 14 votes to one to comply with that request," it said while
giving its opinion.
The court ruled that "the construction of the wall being built by Israel,
the occupying power, in the occupied Palestinian territory, including in and
around East Jerusalem, and its associated régime, are contrary to international
The court declared, again in a 14:1 ruling: "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."
The court added in its ruling that "Israel is under an obligation to
make reparation for all damage caused by the construction of the wall in the
occupied Palestinian territory, including in and around East Jerusalem."
While the jurisdiction of the court was rejected by Israel and the United
States, they will not find it easy to reject the reasoning of the court.
The advisory opinion is divided into three parts: jurisdiction and judicial
propriety; legality of the construction; and legal consequences of the breaches
The court ruled it had jurisdiction under the UN Charter, under which the
General Assembly had authorized it to give its opinion.
The court ruled that "Israel cannot rely on a right of self-defense or
on a state of necessity in order to preclude the wrongfulness of the construction
of the wall. The Court accordingly finds that the construction of the wall and
its associated régime are contrary to international law."
The Court declared the construction illegal under the United Nations Charter
and under "the principles of the prohibition of the threat or use of force
and the illegality of any territorial acquisition by such means, as reflected
in customary international law."
It further cited the principle of self-determination of peoples as enshrined
in the Charter and reaffirmed by UN resolution 2625 (XXV).
The Court drew a distinction between the legal consequences of these violations
for Israel and those for other states.
In regard to the former, the Court said Israel must "put an end to the
violation of its international obligations flowing from the construction of
the wall in the occupied Palestinian territory and must accordingly cease forthwith
the works of construction of the wall, dismantle forthwith those parts of that
structure situated within the occupied Palestinian territory and forthwith repeal
or render ineffective all legislative and regulatory acts adopted with a view
to construction of the wall and establishment of its associated régime."
As regards the legal consequences for other states, the court said "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."
The court declared that "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 its associated régime, taking due account of the present