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Volume 62, July 2009

The ICJ Ruling: Looking Back

By Diana Buttu*


Five years after the Advisory Opinion by the International Court Justice (ICJ) on the legality of the Wall, it is time to assess the legal strategies since employed, offer criticisms and reassess future legal strategies. The ICJ ruling represented the first time that an international court adjudicated the issue of Palestine, and in its decision, the ICJ finally affirmed what lawyers, scholars and human rights activists all know to be true: that Israel is, indeed, in occupation of the West Bank and Gaza Strip (which Israeli government officials cannot even acknowledge); that the cancerous colonies are illegal, irrespective of whether they are in Jerusalem or otherwise; and that Israel has flagrantly violated the law for decades. The ICJ did not confine itself to small parcels of land, but instead demanded that Israel demolish the entirety of the Wall in occupied Palestinian territory, return the land and pay compensation for all damages and losses. Most importantly, the ICJ ruling framed relations between Israel and the Palestinians in the proper light: as between an occupier and the occupied with the inherent power imbalance embodied in occupation and not as between two equal parties.  In other words, the ICJ dismissed the ‘proportionality test’ peddled by the Supreme Court of Israel, in which Israel’s ‘security needs’ are balanced with the human rights of Palestinians,. Herein lies the strength of the ICJ’s opinion, for rather than assessing each meter of the illegal Wall on the basis of whether it meets the needs of a country engaging in colonialism, the ICJ recognized the link between Israel’s colonial designs and the Wall and noted that the Wall was not being built for ‘security’ purposes but to further these colonial designs.

The very strength of the ICJ ruling is also the reason that Israeli government officials dismissed the decision. Israel, like other regimes that commit gross violations of international law, refuses to accept the universal application of international law and goes to great pains to portray that its actions are not only different but benevolent in light of the ongoing ‘threats’ it faces. The familiar refrain, “No one can stand in adjudication of [insert name of offending state],” was also echoed by South African officials, who supported the apartheid regime. 

While offering some limited relief to a limited number of families, the piecemeal litigation approach has continued to strengthen Israel’s claims that:  (a) there is no need for wide-scale, international litigation owing to the ‘benevolence’ of the Israeli Supreme Court; and (b) there is no utility in such wide-scale principled litigation since the rulings of any court other than the Israeli court will be soundly ignored. While I am highly critical of the piecemeal litigation approach, both in terms of utility and strategy, my strongest criticism is leveled not against the individuals using this method but against the Palestinian Authority which has: (a) utterly failed to capitalize on the importance of the ICJ ruling; (b) forced communities to seek redress through the Israeli court system in this way; and (c) failed to articulate any position/vision as regards to the resort to the Israeli Supreme Court, a court that has an inherent conflict of interest in that it adjudicates the very 'crimes' that the State of Israel claims are in fact actions undertaken for Israel's security. This concept is best demonstrated by former Chief Justice Aharon Barak’s words in the Beit Sourik case, the first Supreme Court decision on the Wall: “Our task is difficult. We are members of Israeli society… As any other Israelis, we too recognize the need to defend the country and its citizens against the wounds inflicted by terror.” (See HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel, et al. (decision delivered 30 June 2004), para. 86). With that statement in mind, it is therefore of little surprise that this is the same court that has failed to outlaw torture; has given the green light to the Israel to carry out heinous war crimes and maintain a brutal siege on Gaza; and has legitimized the use of home demolitions as a form of punishment. It is thus astonishing that a more principled position as regards to the use of the Israeli Supreme Court by the PA has not been taken despite the ruling of the ICJ.

Although five years have passed, it is still possible to capitalize on the ICJ’s ruling for the decision also implicates the international community and obliges states not to support Israel’s Wall. The time has come to take the ruling global and use it as a tool to support a wide-scale boycott, divestment and sanctions campaign against Israel. International legal activism on a local scale should target those countries and businesses that support Israel’s Wall and its colonies. Efforts within the UN system should be renewed to seek UN resolutions implementing the ICJ’s opinion, and ideally, these initiatives should be accompanied by continued diplomatic and other pressure exerted to force Israel’s compliance with the ruling.  In addition, efforts to support Palestinian steadfastness (sumud) should also be undertaken so as to ensure that Palestinians do not need to resort to piecemeal litigation before a court that may offer limited relief to some but will, in the future, use the ‘legitimacy’ of this limited relief to condone greater human rights abuses. 

Strategic legal planning is crucially needed lest the ICJ’s ruling make its way, as one Israeli pundit fantasized, to the “garbage can of history”.


* The author is a Palestinian-Canadian lawyer based in Ramallah. She previously served as a legal advisor to the PLO and was a member of the team that worked to bring Israel’s Wall before the ICJ.