Quick Answers to the Ten Key Questions
(Click on any question. At the end of each quick answer is a link
to the longer analysis.))
1. Does the security fence fall within the purview of the ICJ's
mandate to give advisories?
The Statute of the Court broadly states that the Court may issue
an advisory opinion on any legal question put to it by a duly authorized
body or agency of the United Nations. As such, the UN's question
would seem to be within the ICJ's purview. However, the Court may
decide that the issues involved are either too complex and/or too
politicized for it to be appropriate for the Court to issue an advisory.
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2. What precedents in the history of ICJ advisory cases may be
relevant?
Out of the 24 advisories issued since 1948, only two have dealt
with the status of occupied territory.
a. In 1971, the Court ruled that South Africa had to leave Namibia
because it had a legal obligation to respect the UN General Assembly's
decision to create an independent Namibia. This was because South
Africa had accepted that territory from the League of Nations as
a mandate. South Africa had no special historical ties to that territory
prior to the granting of the mandate.
Since Israel is not at all in an analogous situation, this first
ruling does not set a true precedent for judging Israel's presence
in the West Bank, and hence is irrelevant vis a vis the security
fence.
b. In 1975, the ICJ ruled that neither Spain, nor Morocco, nor
Mauritania, had sufficient historical ties to Western Sahara to
establish an a priori claim to sovereignty there. At the same time,
the Court determined that the local tribes did have sufficient political
ties to become an appropriate recipient of sovereignty.
The ruling showed that:
- Historical ties must be taken into account in determining claims
to sovereignty;
- UN recommendations of sovereignty do not in and of themselves
establish a right to sovereignty.
Morocco's 1000-mile long security barrier
1) Historical developments after the 1975 advisory are instructive,
too. Morocco did not back down on its claims, and proceeded to colonize
Western Sahara, despite yearly UN resolutions calling for decolonization
and sovereignty for the native people. Between 1980 and 1987, Morocco
built most of a 1000-mile long security barrier across the heart
of the territory of Western Sahara, taking the best two-thirds of
the territory for Morocco. The UN never challenged the legitimacy
of this security barrier.
2) In 2001, Kofi Annan wrote a special report calling for Moroccan
sovereignty and Sahrawi autonomy. As a result, since 2003, the UN
has dropped its calls for decolonization and Sahrawi independence.
The UN's actions in this case suggest that Israel's far less intrusive
actions could be considered legal, in the same way that Morocco's
intrusive actions have been treated as legal by the UN. I t should
be noted that Israel in not currently seeking to annex the West
Bank.
However, if the UN's favorable response to Morocco's security barrier
and occupation of Western Sahara is viewed as a legal precedent,
the possibility that the security fence could eventually become
a border would not seem to be inherently illegal.
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3. Did the UN ask for an opinion on the fence's legal status, or
rather did it ask what the legal ramifications might be on the assumption that the fence
is a priori illegal?
In the preamble to the UN's question appears the statement,
“Israel... continues to refuse to comply with International
Law, vis a vis its construction of the... wall”.
So in point of fact, the UN voted for a version of the question
which assumes that the security fence is illegal, though it is unclear
if all the voting ambassadors were aware of this wording.
It would appear that the intention of the Arab countries, responsible
for the wording and for lobbying for support for the ICJ advisory,
is to test the ICJ's position on Israel's occupation of the West
Bank in general. The UN, and in particular the pro-Palestinian lobby,
has never asked the ICJ about the legality of Israel's occupation,
presumably because it is aware that, until now, it would most likely
be ruled a legal occupation.
The current advisory, aside from clarifying ancillary issues such
as whether other countries would be obligated to refrain from helping
Israel build the fence should it be ruled illegal, may reveal the
disposition of the current ICJ judges towards the occupation.
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4. Is Israel an "Occupying Power"?
Technically speaking, Israel is not an “Occupying Power”.
This is because the document which defines the term in its legal
sense, the Fourth Geneva Convention, states in its second article
that the Convention only applies when the army and the people controlled
by the army belong to countries which have signed the Fourth Geneva
Convention. Since the Palestinians do not qualify under this definition,
the legal term “Occupying Power” does not apply. However,
in accordance with accepted practice as well as a later addendum
to the Fourth Geneva Convention, Israel applies all of the relevant
humanitarian provisions to its actions in the West Bank.
It should be noted that most countries are reticent to label themselves
as “occupying powers” not because of the legal ramifications,
but because of the negative connotations associated with the term
“occupation”. People often incorrectly assume that occupation
forces are automatically present illegally, and have no legal claims
to the land being occupied. Both of these assumptions are false,
but the term “Occupying Power” continues to be used
or avoided depending on political orientation.
With regard to Israel's security fence, its legality does not depend
on whether or not Israel is technically an Occupying Power, since
countries in control of disputed territory have both rights to security
and self-defense, as well as obligations to the occupied civilians,
under international law. Therefore, the ICJ should address these
rights and obligations, in order to decide on the fence's legality.
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5. Is the disputed territory "Palestinian", or does it
have some other status?
According to ICJ's 1975 advisory, claims to rightful sovereignty
are made on the basis of historical ties. Both Jews and Arabs have
long historical ties to the disputed territory, and therefore the
ICJ would have to weigh all of these ties before accepting the wording
of the UN's question. With all of the religious and political implications,
along with the complexity and controversy of the historical ties
involved, it seems likely that the Court would not deem it as proper
for it to decide on the relative weight of each of the claims to
sovereignty. Therefore, the most appropriate designation for the
status of the West Bank (and Gaza Strip) is “disputed territory”,
and will probably remain so.
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6. What articles in the 4th Geneva Convention might be germane
to the fence's construction?
The Fourth Geneva Convention, composed in 1949, is the document
which most addresses the rights and obligations of Occupying Powers.
The Palestinian Arabs are not citizens of a country which has agreed
to the Convention, but it is universally accepted that all of the
articles which relate to the treatment of the civilian, non-combatant
population still apply. Below are descriptions of the articles most
relevant to the case of the security fence, arranged by topic:
Freedom of Movement
Article 23 – Allows Occupying Powers to limit the free passage
of medical and other critical consignments when such materials may
give direct or indirect aid to enemy fighting forces.
Article 49 – Allows Occupying Powers to transfer, in part
or in total, the occupied civilian population when there are “imperative
military reasons”. What precisely constitutes “imperative”
is not defined, but freedom of movement is clearly not a fundamental
right of those living under occupation. This would indicate that
the mere fact that the fence limits movement does not automatically
render it illegal.
Military operations in the heart of civilian populations
Article 28 – States that, “the presence of a protected
person may not be used to render certain points or areas immune
from military operations.” If the fence can be considered
a “military operation”, and it seems it could, then
there is nothing especially illegal about its position near civilian
populations.
Collective Punishment vs. Restrictive Measures
Article 33 – Specifically forbids Occupying Powers from employing
collective punishment. The ICJ could rule that the fence constitutes
a kind of collective punishment for the crimes committed by a few
hundred terrorists. On the other hand, the Court could rule that
the fence is simply a restrictive measure, like many legalized by
the Fourth Geneva Convention. How the Court rules will depend on
how it views Israel's intentions, and how it views the effectiveness
of the fence in stopping terrorists, compared with the degree of
inconvenience caused to the civilian population in the West Bank.
Restrictive Measures affecting Property
Article 46 – Allows for “restrictive measures”
regarding personal property of civilians. What these measures are
is not defined by the Fourth Geneva Convention.
Article 53 – Allows Occupying Powers to destroy personal
property where “such destruction is rendered absolutely necessary
by military operations.” Again, “absolutely necessary”
is a broad term which could be interpreted either to apply or not
apply to the case of preventing terrorist attacks with a security
fence built in part on disputed territory.
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7. What other documents of International Law might be relevant?
The Hague Convention of 1907
Article 23(g) of this Convention states that it is forbidden “to
destroy or seize the enemy's property, unless such destruction or
seizure be imperatively demanded by the necessities of war.”
This article clarifies that the seizure or confiscation of property
belonging to an enemy can be justified, depending on the dictates
of war. How the ICJ relates to Israel's war on terrorism will decide
whether or not the fence can be considered as one of the “necessities
of war”.
Protocol I Additional to the Fourth Geneva Convention (1977)
Article 54 lays down conditions under which an army can make land
or installations inaccessible to the local civilian population,
even when agricultural land or water resources are involved. There
are two scenarios wherein such actions are allowed:
1) The land or installations involved have been used for attacks;
or
2) The land or installations involved may be used in the future
for an invasion of the army's country
When either of these situations arise, actions such as building
a security barrier become legal, provided that the local population
is not starved or forced to leave their homes to avoid starvation.
No one has claimed that the current fence would create such a severe
strain on resources. Therefore, Article 54 of Protocol I provides
a strong legal basis for the security fence.
There may be a question about the term “invasion” in
the second scenario, for it is not clear whether or not the extreme
on-going terrorism emanating from the West Bank can be properly
termed as “invasion”. However, as the events of September
11th, 2001 have so tragically demonstrated, a single mega-attack
is inarguably a form of invasion. To date, there have been at least
two documented cases of attempted mega-attacks perpetrated by Palestinian
terrorists from the West Bank:
1) On April 26, 2002, a terrorist from the West Bank town of Qalqilya
was caught driving a truck with 1,000 pounds of explosives. Papers
in the truck showed that the target was the twin 50-storey Azrieli
Towers in downtown Tel Aviv. This was a clear attempt to copy the
attack on the World Trade Center's Twin Towers.
2) On May 22, 2002, Fatah terrorists planted a bomb on a natural
gas transport truck, and detonated it as it received fuel at one
of Israel's largest gas depots. Had the chain reaction occurred
as planned, the ensuing explosion of the depot would have killed
on the order of ten thousand people, left many more severely burned,
and destroyed most of northern Tel Aviv. Had this occurred, “9/11”
would have had an even more devastating parallel called “5/22”.
Due to the very real potential for mega-attacks, the second scenario
of Article 54 regarding the threat of invasion undoubtedly applies
when considering the legality of Israel's security fence.
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8. Which Security Council and General Assembly resolutions are
relevant in this case?
General Assembly Resolution 181
This resolution was a recommendation to the United Nations, which
suggested that the territory of the British Mandate be partitioned
into a Jewish State and an Arab State in order to address the competing
claims to sovereignty, and thus prevent war. Resolution 181 did
not create states, nor did it assign a right to sovereignty. It
only asked UN members to support Partition in order to prevent war.
Unfortunately, it did not prevent war as the Arabs were not willing
to agree to any form of partition or compromise.
By the end of the war, the Arab country of Jordan controlled the
West Bank, expelled the Jews living in the West Bank (though their
right to reside there had been guaranteed by Resolution 181), and
annexed it. And though the annexation was not officially recognized,
in practice it went without objection from the Palestinian Arabs
or the UN.
In short, Resolution 181 is not a precedent for Palestinian Arab
sovereignty over the West Bank, and therefore the building of a
security fence in the West Bank is not in any way a violation of
that resolution's letter or spirit.
Security Council Resolution 242
Passed just after the 1967 War, this resolution stated that the
UN charter “requires the establishment of a just and lasting
peace in the Middle East”, predicated on Israeli withdrawals
and ending all states of belligerency, while guaranteeing “secure
and recognized boundaries”. The text meticulously avoided
calling for a return to the pre-1967 borders, since most members
of the Security Council understood that those borders were not secure.
Since Resolution 242 did not demand immediate Israeli withdrawal,
it ipso facto recognized the legitimacy of Israel's occupation in
lieu of the continuing fact of Arab belligerency. In not demanding
an eventual return to the 1967 borders, Resolution 242 confirmed
that Resolution 181 was a recommendation for achieving peace, and
not a statement regarding relative historical claims. Thus, Resolution
242 in no way diminishes Israel's right to be present in the West
Bank, nor does it diminish Israel's right to defend itself in the
territory of the West Bank.
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9. What are the legal implications of the Oslo Accords vis a vis
the security fence and the issue of jurisdiction?
The Oslo Accords created a legal relationship between Israel and
the PLO, wherein Israel was recognized by the Palestinian side as
the government which was and is responsible for security in the
portions of the West Bank not handed over to PLO control. The areas
where the fence is being built are those areas that the Oslo Accords
authorized Israel to act, in order to bring security both to Israel
proper as well as to the Jewish towns and villages of the West Bank.
This aspect of the Oslo Accords lends legal support to the security
fence.
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10. Do the political and ethical implications of the fence fall
within the purview of the ICJ?
Although there are many serious political and ethical implications
of the security fence, these must be considered and dealt with by
organizations other than the International Court of Justice. The
ICJ is authorized only to consider legal issues. Any other kind
of question, no matter how seemingly important, is beyond the purview
of the Court.
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