Stop sitting on the fence
10 Years after the Advisory Opinion on the Wall in Occupied Palestine: Time for Concrete Action
[Click on above headline for names of signatories and for footnotes]
From Stop the Wall
July 09, 2014
Secretary-General of the United Nations Ban ki Moon
High Contracting Parties to the Geneva Conventions
This letter is joined by 83 legal experts and 32 legal networks and organizations concerned with the ongoing breaches of international law in the occupied Palestinian territories violating the Palestinian people’s individual and collective human rights. We are pursuing mechanisms to end impunity for these breaches and violations on the occasion of the tenth anniversary of the International Court of Justice (ICJ) Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2004. We take note also of the main outcomes of subsequent efforts by independent legal experts, UN bodies and civil institutions to promote good practice and operational measures aimed at ending Israeli violations and ensuring respect for international law in the pursuit of justice, peace and world order.
The Court arrived at its Advisory Opinion following essentially the same rules and procedures as in its binding judgements in other contentious cases. Further, the Advisory Opinion’s high status and legal effect derive from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.
The 2004 ICJ opinion authoritatively elucidates (1) the international legal framework that applies to the Israeli occupation (2) the connection between the Wall and Israel’s illegal settler-colony enterprise and (3) the responsible actors and their legal obligations. The ICJ concluded that the “construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law.”
The Court found that construction of the Wall and its associated regime violate multiple norms binding on all States under both treaties and customary law, including peremptory norms from which no derogation is permitted. The Court ruled that:
A. 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;
B. Israel is under an obligation to terminate its breaches of international law, to cease the construction of the Wall, to dismantle its structures, and to repeal or render ineffective all related legislative and regulatory acts; Israel is further under an obligation to make reparation for all damage caused by the Wall;
C. All States are under an obligation not to recognize the illegal situation resulting from the construction of the Wall and not to render aid or assistance in maintaining the situation created by such construction and its associated regime;
D. All High Contracting Parties (HCPs) to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have an additional obligation to respect and ensure Israel’s and other States’ compliance with international humanitarian law as embodied in that Convention;
E. 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.
The 150 states that voted in favour of UN General Assembly resolution ES-10/1511 explicitly have acknowledged the duty of Israel and all UN Member States to “comply with their legal obligations as mentioned in the advisory opinion.”
Following the ICJ advisory to consider further action, the General Assembly acclaimed “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” and established the United Nations Register of Damage (UNRoD) caused by the construction of the wall in the occupied Palestinian territory.
Subsequent legal analysis of Israeli violations and their consequences for Palestinian human rights have reaffirmed and complemented the ICJ Advisory Opinion in response to the particular question that the General Assembly put to it.15 The ICJ Advisory Opinion already had underlined that the Wall was a component of the wider Israeli annexation and settlement enterprise that systematically violates Palestinians’ human rights. Consecutive UN Special Rapporteurs on the situation of human rights in the oPt have found that Israel’s occupation regime, integrating the settler colonies and the Wall, has resulted in institutionalized discrimination, segregation and systematic and severe violation of Palestinians’ human rights.
They have characterized this Israeli regime as one “of prolonged occupation with features of colonialism and apartheid.”
UN treaty bodies such as the UN Committee on the Elimination of Racial Discrimination (CERD) and independent legal studies18 have supported these findings. It follows that these Israeli violations trigger not only state responsibility, but also individual criminal liability under the Rome Statute of the ICC and other standards of international criminal law.
Based on the above, UN fact-finding missions and Special Rapporteurs, as well as human rights organizations around the world, have engaged in the study of third-party responsibilities and extraterritorial human rights obligations. They have analysed how states, parastatal and private actors provide recognition and/or otherwise assist in the commission or maintenance of these crimes, gross violations of human rights and serious violations of IHL. Taking into consideration the IHL framework, human rights conventions, the Apartheid Convention and the Rome Statute of the ICC, such analysis has demonstrated the obligation of states to adopt practical measures in economic and business operations, in order to comply with their duties under international law and avoid, or terminate complicity with illegal situations.
Primary responsibility to promote and protect human rights, and to ensure respect for international law and human rights by non-state actors, remains with States. However, legal development over the last years has stressed the liability of corporations, parastatal institutions and financial actors. In 2006, the International Red Cross has stressed that IHL binds not only states and armed groups but as well business enterprises. In 2011, the UN Human Rights Council resolution A/HRC/RES/17/4 adopting the UN Guiding Principles on Business and Human Rights underlined that transnational corporations and other business enterprises have a responsibility to respect human rights. The UN Special Representative for Business and Human Rights has concluded that corporations now are considered bearers of duties under international criminal law.
Some non-State actors already have been denounced for their noncompliance with their international law and human rights obligations. Among these entities are the parastatal Jewish National Fund, World Zionist Organization, and Mekorot, as well as Israeli and transnational corporations such as Elbit Systems, Sodastream, Ahava, G4S, Veolia Group, Alstom, Dexia Bank, and institutions of the Israeli banking system, among others.
Since 2004, some States and private bodies have developed good practices or policies, including divestment from, or termination of/abstention from contracts with entities involved in Israeli violations of international law. The EU Guidelines on eligibility of Israeli entities for grants, prizes and financial instruments28 and the relevant Non-Aligned Movement resolutions are notable examples of the exercise of collective extraterritorial obligations.
States, public entities, parastatal organisations and private actors—whether located in, operating partially in, providing services or products to, transacting with or trading in services or products of Israeli settler colonies, or otherwise engaged in projects executed totally or partially under Israeli control in the oPt and/or not “undertaken in accordance with the wishes of the peoples of [Non-Self-Governing] Territories, and their contribution to the development of such Territories”—are under self-executing obligations to cooperate in taking the following measures:
1. Terminate all funding, contracts or other economic and institutional relations with actors enabling, supporting or encouraging the continuation of Israeli violations of international law.
To this end, investigations must consider the fungibility of financial trails, products and technology transfer.
2. Ban/terminate all trade in products partially or totally produced in the illegal settlercolonies. The labelling of products as originating from the colonies, while continuing to trade, is not sufficient to meet the obligations of non-recognition of, and non-cooperation with the illegal situation. The WTO regime does not impede this corrective trade measure.
Individual States and governments, in particular, should:
1. Adopt policies and prohibitive legislation, and develop, produce and widely disseminate informational guidelines, in order to ensure that companies and other entities under their jurisdiction are sufficiently apprised of the legal consequences of their role in Israeli violations, and in order that no party evade its obligations.
2. High Contracting Parties to the Geneva Conventions are further obliged to exercise domestic and universal jurisdiction, in order to pursue and prosecute or extradite actors that have been or are involved in grave breaches of IHL32;
3. States must pursue and prosecute the authors of international crimes, codified inter alia in the Apartheid Convention and the Rome Statute of the ICC, in accordance with their international obligations;
4. States and organs of the United Nations must ensure that Israel make timely, effective and adequate reparation for all damages suffered from its conduct and that of its agents.
International law provides for States to comply with these obligations individually and by way of international cooperation, as well as through the organs and mechanisms of the United Nations. Among the available measures are:
• Implementing trade, military and/or diplomatic sanctions as a countermeasure;
• Creating an enabling environment for the accession of Palestine to the Rome Statute;
• Depositing a statement affirming applicability of the Fourth Geneva Convention in the oPt, including Jerusalem, the West Bank and Gaza Strip;
• Re-constituting the UN Special Committee and Center against Apartheid, charged to investigate Israeli apartheid, recommend measures to combat it, and monitor compliance of all States and private entities in light of their individual, collective, domestic and extraterritorial obligations vis-à-vis Israel’s regime of prolonged occupation with its features of colonialism and apartheid, which the Wall exemplifies;
• Development of an UN Agenda for Action in consultation with the UN human rights treaty bodies, ILO compliance mechanisms, legal advisors to the Secretary-General and the depositary of the IV Geneva Convention;
• Through the General Assembly, mandating the UN Register of Damage to develop the capacity to determine reparations for losses, costs and damages to any party as a consequence of the Separation Wall’s development, construction and/or maintenance.
The failure of the United Nations and individual Member States to uphold their binding obligations to uphold international law and world order in this case undermines the international system and faith in international law. Ten years after the ICJ decision, we urge the United Nations, its Member States and organs, finally to comply with their obligations and take legally permissible measures to ensure the removal of the Israeli Wall from occupied Palestinian territory and the associated regime of settler colonies, institutionalized discrimination and annexation. This requires applying the lessons of conflagrations past, combatting the related violations by any and all parties, and effecting the full reparation of victims now for the resulting costs, losses and damages in compliance with the reparations framework that the General Assembly has adopted by acclamation.
In the face of these persistent grave breaches, gross violations and codified crimes, ten years of inertia is far too long.