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ADALAH'S NEWSLETTER
Volume 62, July 2009


Five Years after the ICJ Advisory Opinion on the Wall: Barriers to Enforcement

By John Reynolds 1

 

The struggle against the Wall within the Israeli legal system has provided perhaps the starkest illustration in recent years of a broader debate that has raged for some time ? whether petitioning the occupier?s courts in defence of Palestinian rights is an effective form of resistance to the occupation, or merely serves to confer its legitimacy.

To the extent that the Israeli Supreme Court has failed to adhere to the ICJ Advisory Opinion in the endless number of petitions brought before it regarding the Wall, it would appear that, in this instance, the result is one of legitimacy conferred rather than justice upheld. Pyrrhic half-victories in ?landmark? cases such as Beit Sourik2, Ma?arabe3 and Bil?in4 were based on the court?s diminution of the disputes to the proportionality of the Wall?s route instead of the prima facie legality of the Wall itself. Of course, viewed from a damage-limitation perspective of what could have been lost?as opposed to what was gained?the affected communities have ?benefited? to the degree that losing half of one?s land is preferable to losing all of it. In the wider scheme of things, however, the Palestinians are far from achieving what the ICJ adjudged them to be entitled to. In Ma?arabe, for instance, the Supreme Court listed a number of crucial issues upon which it would refuse to rule (despite the ICJ having done so) including the applicability of the Fourth Geneva Convention, the legality of Israeli settlements in the OPT, and the relationship between international humanitarian law and human rights law. These limitations on the scope of the case allowed the Supreme Court to pare down the rationale of the ICJ in a selective manner such that it came to the absurd conclusion that both Beit Sourik and the ICJ Advisory Opinion used a ?common normative framework? and that the crux of the distinction between its own rulings and that of the ICJ lay in factual differences rather than in conflicting legal interpretations.

By approving the State?s general policy of building the Wall through the heart of occupied territory yet occasionally and adroitly placating petitioners by conceding to them minor victories, the Supreme Court has maintained the fašade of being a fair and balanced arbiter in spite of the significant disparity between its decisions and international legal norms. Perhaps the most palpable positive effect for Palestinians from the deluge of cases brought against the Wall is the increased burden, stemming from changes to the route ordered by the court, on Israel?s already-dwindling finances for the completion of its construction.

Fiscal matters aside, however, it is clear that the Israeli Supreme Court is not the platform from which enforcement of the Advisory Opinion will be launched. According to the ICJ, all States have legal obligations not to recognise, aid or assist Israel?s illegal construction of the Wall. In addition to pressure campaigns to make it politically inconvenient for States to ignore the Advisory Opinion, legal action can be taken against those States, in their own jurisdictions, in order to compel them to fulfil their obligations under the Advisory Opinion. Al-Haq is currently engaged in such a case in the UK.5 The Advisory Opinion can also potentially be used in civil claims against corporations responsible for aiding, abetting or profiting from the construction of the Wall. At the UN level, should the Security Council continue to ignore the Advisory Opinion, the General Assembly must consider recommending collective measures under resolution 377, Uniting for Peace, to ensure compliance by Israel with the ICJ?s findings. Collective measures may include sanctions, such as those that were imposed on South Africa on account of its occupation of Namibia and its apartheid regime. Additionally, the UN should withdraw from the floundering ?Quartet? should the latter persist in refusing to acknowledge the Advisory Opinion.

While petitions to the Israeli courts in defence of Palestinian rights have resulted in the tempering of violations in a handful of individual cases, such litigation in respect of the Wall has, on the whole, shown itself to be compromised to the point of legitimising a particularly objectionable embodiment of the occupation. Individual lawyers have an ethical obligation to defend the rights of their individual clients. Human rights organisations and the broader human rights community, however, can step back from the trees to see the forest. They must focus on international pressure towards enforcement of the ICJ Advisory Opinion, lest the Wall be consolidated as the latest snaking crawl in a calculated process of creeping annexation.

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1 Legal Advisor, Al-Haq?West Bank Affiliate of the International Commission of Jurists.
2 HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel (decision delivered 30 June 2004).
3 HCJ 7957/04, Ma?arabe v. Prime Minister of Israel (decision delivered 15 September 2005).
4 HCJ 8414/05, Yassin v. The Government of Israel et al. (decision delivered 4 September 2007).
5 Al-Haq v. Secretary of State for Foreign and Commonwealth Affairs et al. Case pending. Claim filed 24 February 2009, available at: http://www.alhaq.org/pdfs/claim%2024%20feb%202009%20-%20al-haq%20v%20uk%20grounds%20for%20judicial%20review.pdf.