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What UNSC-465 and ICJ 7-2004 actually say

by Peter A. Belmont / 2011-04-06


 
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UNSC-465 (1980) calls on Israel to remove all settlers and dismantle all settlements and to stop the settlement process.

The International Court of Justice’s July 9, 2004, advisory opinion declares Israel’s separation (apartheid) wall illegal, calls for its dismantlement, and makes enforcement of Israel’s accomplishing this a duty of all states.
 

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UNSC-465
ICJ-2004

UNSC-465: the two key provisions:

5. Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;
6. Strongly deplores the continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem;
(Emphasis added.)
The whole resolution:
The Security Council,

Taking note of the reports of the Commission of the Security Council established under resolution 446 (1979) to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, contained in documents S/13450 and Corr. 1 and S/13679,

Taking note also of letters from the Permanent Representative of Jordan (S/13801) and the Permanent Representative of Morocco, Chairman of the Islamic Group (S/13802),

Strongly deploring the refusal by Israel to co-operate with the Commission and regretting its formal rejection of resolutions 446 (1979) and 452 (1979),

Affirming once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem,

Deploring the decision of the Government of Israel to officially support Israeli settlement in the Palestinian and other Arab territories occupied since 1967,

Deeply concerned over the practices of the Israeli authorities in implementing that settlement policy in the occupied Arab territories, including Jerusalem, and its consequences for the local Arab and Palestinian population,

Taking into account the need to consider measures for the impartial protection of private and public land and property, and water resources,

Bearing in mind the specific status of Jerusalem and, in particular, the need for protection and preservation of the unique spiritual and religious dimension of the Holy Places in the city,

Drawing attention to the grave consequences which the settlement policy is bound to have on any attempt to reach a comprehensive, just and lasting peace in the Middle East,

Recalling pertinent Security Council resolutions, specifically resolutions 237 (1967) of 14 June 1967, 252 (1968) of 21 May 1968, 267 (1969) of 3 July 1969, 271 (1969) of 15 September 1969 and 298 (1971) of 25 September 1971, as well as the consensus statement made by the President of the Security Council on 11 November 1976,

Having invited Mr. Fahd Qawasmeh, Mayor of Al-Khalil (Hebron), in the occupied territory, to supply it with information pursuant to rule 39 of the provisional rules of procedure,

1. Commends the work done by the Commission in preparing the report contained in document S/13679;

2. Accepts the conclusions and recommendations contained in the above-mentioned report of the Commission;

3. Calls upon all parties, particularly the Government of Israel, to co-operate with the Commission;

4. Strongly deplores the decision of Israel to prohibit the free travel of Mayor Fahd Qawasmeh in order to appear before the Security Council, and requests Israel to permit his free travel to the United Nations headquarters for that purpose;

5. Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

6. Strongly deplores the continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem;

7. Calls upon all States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories;

8. Requests the Commission to continue to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, to investigate the reported serious depletion of natural resources, particularly the water resources, with a view to ensuring the protection of those important natural resources of the territories under occupation, and to keep under close scrutiny the implementation of the present resolution;

9. Requests the Commission to report to the Security Council before 1 September 1980, and decides to convene at the earliest possible date thereafter in order to consider the report and the full implementation of the present resolution.
Source electronicintifada..

ICJ-2004 Key provisions:

Israel accepts Fourth Geneva
Fourth Geneva is applicable
Israel recognizes PLO and Palestinian People
Israeli settlements are illegal
wall is illegal(1)
wall is illegal(2)
Israel must allow access to Holy Places
Israel must dismantle wall
Israel must make reparations
All States must secure remediation


Israel accepts Fourth Geneva

100. The Court would note finally that the Supreme Court of Israel, in
a judgment dated 30 May 2004, also found that: “The military operations of the [Israeli Defence Forces] in Rafah, to the extent they affect civilians, are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907 . . . and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949.”

Fourth Geneva is applicable

101. In view of the foregoing, the Court considers that the Fourth
Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties. Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out. The Court accordingly finds that that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.

Israel recognizes PLO and Palestinian People

118. * * * In reply, the Israeli Prime Minister informed him that, in the light of those commitments, “the Government of Israel has decided to recognize the P L 0 as the representative of the Palestinian people”. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 also refers a number of times to the Palestinian people and its “legitimate rights” (Preamble, paras. 4, 7, 8; Article II, para. 2; Article I I I , paras. 1 and 3; Article XXII, para. 2). The Court considers that those rights include the right to self-determination, as the General Assembly has moreover recognized on a number of occasions (see, for example, resolution 9;8/163 of 22 December 2003).


Israeli settlements are illegal


120. As regards these settlements, the Court notes that Article 49,
paragraph 6, of the Fourth Geneva Convention provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.

In this respect, the information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of Settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, just cited.

The Court concludes that the Israeli settlements in the Occupied
Palestinian Territory (including East Jerusalem) have been established
in breach of international law.



wall is illegal(1)


138. The Court has thus concluded that the construction of the wall
constitutes action not in conformity with various international legal obligations incumbent upon Israel.

140. One of those conditions was stated by the Court in terms used by the International Law Commission, in a text which in its present form requires that the act being challenged be “the only way for the State to safeguard an essential interest against a grave and imminent peril” (Article 25 of the international Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts; see also former Article 33 of the Draft Articles on the International Responsibility of States, with slightly different wording in the English text). In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.


wall is illegal(2)

142. In conclusion, the Court considers that Israel cannot rely on a
right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall resulting from the considerations mentioned in paragraphs 122 and 137 above. The Court accordingly finds that the construction of the wall, and its associated régime, are contrary to international law.

Israel must allow access to Holy Places

149. The Court notes that Israel is first obliged to comply with the
international obligations it has breached by the construction of the wall in the Occupied Palestinian Territory (see paragraphs 114-137 above). Consequently, Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law. Furthermore, it must ensure freedom of access to the Holy Places that came under its control following the 1967 War (see paragraph 129 above).

150. The Court observes that Israel also has an obligation to put an
end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory. The obligation of a State responsible for an internationally wrongful act to put an end to that act is well established in general international law, and the Court has on a number of occasions confirmed the existence of that obligation.

Israel must dismantle wall

151. Israel accordingly has the obligation to cease forthwith the works of construction of the wall being built by it in the Occupied Palestinian Territory, including in and around East Jerusalem. Moreover, in view of the Court’s finding (see paragraph 143 above) that Israel’s violations of its international obligations stem from the construction of the wall and from its associated régime, cessation of those violations entails the dismantling forthwith of those parts of that structure situated within the Occupied Palestinian Territory, including in and around East Jerusalem.

Israel must make reparations

152. Moreover, given that the construction of the wall in the Occupied
Palestinian Territory has, inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court finds further that Israel has the obligation to make reparation for the damage caused to al1 the natural or legal persons concerned.

The Court would recall that the essential forms of reparation in customary law were laid down by the Permanent Court of International Justice in the following terms :
”The essential principle contained in the actual notion of an illegal
act a principle which seems to be established by international
practice and in particular by the decisions of arbitral tribunals
is that reparation must, as far as possible, wipe out al1 the consequences of the illegal act and reestablish the situation which would, in al1 probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it
such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.” * * *

153. Israel is accordingly under an obligation to return the land,
orchards, olive groves and other immovable property seized from any
natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory. In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered. The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, al1 natural or legal persons having suffered any form of material damage as a result of the wall’s construction.


All States must secure remediation

159. Given the character and the importance of the rights and obligations involved, the Court is of the view that al1 States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for al1 States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, al1 the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.

155. The Court would observe that the obligations violated by Israel
include certain obligations erga omnes. As the Court indicated in the
Barcelona Traction case, such obligations are by their very nature “the concern of al1 States” and, “In view of the importance of the rights involved, al1 States can be held to have a legal interest in their protection” (Barcelonu Truction, Light and Power Company, Lirnited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33). The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law.

156. As regards the first of these, the Court has already observed
(paragraph 88 above) that in the East Timor case, it described as
”irreproachable” the assertion that “the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character” ( I . C.J. Reports 1995, p. 102, para. 29). The Court would also recall that under the terms of General Assembly resolution 2625 (XXV), already mentioned above (see paragraph 88), “Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle . . .”

157. With regard to international humanitarian law, the Court recalls
that in its Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons it stated that “a great many rules of humanitarian law
applicable in armed conflict are so fundamental to the respect of the
human person and ‘elementary considerations of humanity’ . . .”, that
they are “to be observed by al1 States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (I. J. Reports 1996 ( I ), C. p. 257, para. 79). In the Court’s view, these rules incorporate obligations which are essentially of an erga omnes character.

Source for ICJ July 9, 2004, advisory opinion. (PDF)





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