What about the Wall?

The International Court of Justice recently has issued an advisory opinion on the legal implications of the wall or security fence that Israel has been building around the West Bank. Matthew Taylor of The Guardian writes:

Palestinian leaders today said they would seek UN sanctions against Israel after the international court of justice ruled that the barrier being built around the West Bank was illegal and should be pulled down.

Announcing its findings, the court said the “security wall” infringed the rights of Palestinians, adding that Israel should pay compensation for the damage it had caused.

The decision itself is here. This does not appear to be a permalink so get it while it’s hot.

The decision is not a condemnation of a security fence per se cf. Article 67 of the advisory decision:

The Court notes furthermore that the request of the General Assembly concerns the legal consequences of the wall being built “in the Occupied Palestinian Territory, including in and around East Jerusalem”. As also explained below (see paragraphs 79‑84 below), some parts of the complex are being built, or are planned to be built, on the territory of Israel itself; the Court does not consider that it is called upon to examine the legal consequences arising from the construction of those parts of the wall.

Would a security fence built exclusively on Israeli land be acceptable? It’s difficult for me to see how any security fence would satisfy some of the objections the justices cite. In particular:

• Restrictions on freedom of movement of inhabitants of the Occupied Palestinian Territory
• Impediments to the exercise by those concerned of the right to work, to health, to education and to an adequate standard of living

Any security fence will ipso facto restrict the freedom of movement of the Palestinians—that’s the point. And since there are Palestinians living on the West Bank who work in Israel they will, indeed, suffer impediments.

The key failings of the advisory opinion include its failure to deal reasonably with the Israelis’ right of self-defense from terrorist attack by Palestinians residing in the Occupied Territories and the outright refusal of the Palestinian Authority to take adequate measures to control these attacks (on the grounds that it would provoke civil war which would not seem to me to be the Israelis’ problem). The sharp decline of terrorist attack in the areas already divided by the wall would appear to be a powerful argument for its practical necessity.

Finally, what are United Nations member states expected to do as a result of this advisory opinion? Judge Pieter Kooijmans comments in his opinion:

50. Although I certainly am not in favour of a restricted interpretation of common Article 1, such as may have been envisaged in 1949, I simply do not know whether the scope given by the Court to this Article in the present Opinion is correct as a statement of positive law. Since the Court does not give any argument in its reasoning, I do not feel able to support its finding. Moreover, I fail to see what kind of positive action, resulting from this obligation, may be expected from individual States, apart from diplomatic demarches.