The Third Anniversary of the International Court of Justice’s Advisory Opinion: Time for Concrete Action by the UN General Assembly
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 .” After comprehensive examination of its own jurisdiction and relevant international law, the ICJ found the construction of the Wall in the Occupied Palestinian Territory (OPT), its associated regime of movement restrictions, land confiscation and property destruction, and the Israeli settlements, to be in breach of international law. The advisory opinion held that Israel must cease construction of the Wall, dismantle those parts already constructed in the OPT, and provide remedy to the affected Palestinian civilians. The ICJ also clearly delineated the obligations of third-states in respect of Israel ’s breaches of international law and further expressed the view:
“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 the associated régime, taking due account of the present advisory opinion.”
Far from complying with the advisory opinion, over the past three years the construction of the Wall has continued unremittingly, as has the expansion of illegal Israeli settlements in the West Bank , and the associated violations of international human rights and humanitarian law. In a striking example, since the issuing of the advisory opinion East Jerusalem, recognised by the UN Security Council as an integral part of the OPT, has been all but amputated from the West Bank by the Wall, settlements and severe movement restrictions.
While Israel, as the occupying power, bears primary responsibility for violations of international law in the OPT, in conspicuously failing to take action to bring Israel into compliance with international law, the international community has tacitly endorsed the continuation of Israel’s illegal policies and practices in the OPT. Similarly, the United Nations Security Council has failed to adopt concrete measures in respect of Israel’s egregious violations of international law, and in particular its failure to implement the advisory opinion.
Faced with such pervasive inaction the UN General Assembly can, and must, act boldly to stand in defence of the fundamental freedoms and protections guaranteed the Palestinian people under international law.
Under UN General Assembly Resolution 377 A (V) “Uniting for Peace,”
“…if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, … to maintain or restore international peace and security.”
The paralysis of the Security Council on the issue of the Israeli occupation is beyond dispute. Between 1983 and 2006, the United States vetoed over 20 draft Security Council resolutions critical of Israel ’s policies and practices in the OPT.
After the failure, in 1997, of the Security Council to adopt two resolutions concerning Israeli settlements in the OPT due to a veto exercised by a permanent member, the 10th Emergency Special Session of the General Assembly was convened at the request of the Arab Group. The 10th Emergency Special Session has been reconvened 11 times, and in December 2003 passed a resolution requesting an advisory opinion from the ICJ on the legal consequences of the construction of a Wall by Israel in the OPT. The request was made after a draft Security Council resolution declaring the construction of the Wall illegal under the relevant provisions of international law was vetoed.
In the advisory opinion itself, the ICJ affirmed that the request made by the General Assembly was valid under the procedures prescribed by the UN Charter and Resolution 377 A (V). This confirmed two essential points already established in numerous UN General Assembly resolutions. First, the situation in the OPT, and in particular the construction of the Wall, constituted a threat to international peace and security; and second, that the Security Council was failing in its duty to act.
Resolution 377 A (V) provides the General Assembly with the ability to recommend collective measures to ensure respect for fundamental provisions of the UN Charter, and international human rights and humanitarian law. In the past measures recommended under Resolution 377 A (V) have included calls upon member states to impose “comprehensive mandatory sanctions in accordance with the provisions of the Charter” and urging the political, economic, military and cultural isolation of South Africa as a result of its occupation of Namibia and its apartheid regime. After 40 years of occupation, and the systematic failure of Israel to abide by UN Security Council and General Assembly Resolutions, and respect fundamental principles of international law, such measures must be considered in relation to Israel.
Resolution 377 A (V) provides a tool through which UN member states can overcome the paralysis of the Security Council and, through the General Assembly, act in the interests of international peace and security, seeking not only the implementation of the advisory opinion, but also an end to the severe violations of international law inherent in Israel’s 40 year occupation of the OPT.
Upon the anniversary of the Advisory opinion, Al-Haq therefore calls upon UN member states to adopt the same principled and determined stance that led to the advisory opinion itself, using the powers granted to the General Assembly under the ‘Uniting for Peace’ resolution to recommend Israel be subjected to the full weight of collective measures until the Wall is dismantled, settlements removed from the OPT, the occupation ended and the fundamental rights of the Palestinian people, as set out in international law, meaningfully exercised, in particular the right to self-determination
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