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July 10, 2004

Palestinian Win Rises Higher Than Israeli Wall

by Sanjay Suri

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 opinion.

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. position.

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 Authority.

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 from Jerusalem.

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 law."

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 found.

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 advisory opinion."

(Inter Press Service)

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