Introduction

Ever since the Government of Israel officially decided to construct a security fence which would partly lie within the disputed territory of the West Bank, there has been much questioning of the legal issues involved. This questioning came to a head on December 8th, 2003 when the General Assembly of the United Nations voted to request that the International Court of Justice advise the UN regarding the fence.

Because of the attention naturally given to the issues of purview and propriety in anticipation of the February 23rd hearings, there has been little public discussion of the actual legal issues that relate to the construction of a security barrier within disputed territory. This series, while addressing the important issues of purview and propriety, will primarily focus on and analyze those legal issues, in order to help clarify what legal ramifications the security fence may have.

The precise wording of the question contained in the UN request for an advisory was as follows:

“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of International Law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?”

[For the full text of the Resolution]

In accordance with the Court's procedure, all countries, UN observers, and UN organizations interested in the issue of the fence had to present their written arguments by January 30th, 2004; and by February 13th to declare if they intended to send representatives to the hearings scheduled to begin on February 23rd in the Hague. In addition, the Court has accepted the participation of two organizations not affiliated with the United Nations: the League of Arab States, and the Organization of the Islamic Conference.

As of going to press, Israel has decided not to send counsel to appear at the hearings, but to depend on its already submitted written statement as sufficient defense. The main body of Israel's written statement contends that the issue of the Security Fence is ultimately not within the Court's purview, and in particular that it does not befit the Court to rule on a clearly politicized issue. This view has been adopted by over 30 UN member states, including the United States, Canada, Russia, Australia, South Africa, Senegal and 25 European countries, who have submitted similar positions despite varying degrees of reservations regarding the security fence's effect on peace talks.

These statements will become available to the public only after the opening of the hearings.

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