http://unispal.un.org/UNISPAL.NSF/0/321BFD8CAB197930852574B8006D8A7D http://unispal.un.org/UNISPAL.NSF/0/321BFD8CAB197930852574B8006D8A7D
United Nations International Meeting on the Question of Palestine



Implementing the advisory opinion of the International Court of Justice
on the legal consequences of the construction of a wall
in the Occupied Palestinian Territory —
the role of Governments, intergovernmental organizations and civil society



United Nations Office at Geneva, 8 and 9 March 2005

Michael Lynk
Professor of Law
University of Western Ontario
London, Ontario, Canada

The wall and the settlements

I. Introduction 

The international community has spoken frequently and, at times, sharply, about the legal requirements necessary to end the military occupation and create a just and durable peace between Israel and the Palestinians. According to international law and the pronouncements of the United Nations (Security Council resolution 242 (1967), the acquisition of territory by military conquest is prohibited; the 38-year-old occupation has been rife with a myriad of serious human rights violations (see E/CN.4/2004/6); Palestinian refugees have the right to return to their homes, with restitution and compensation (General Assembly resolution 194 (III);42` the unilateral annexation of East Jerusalem is unlawful (Security Council resolution 252 (1968), para. 2); the demographic and physical transformation of the occupied territories through settler implantation is a war crime (A/Conf.183/9, Art. 8(2)(b) (viii); the construction of a separation wall on occupied land violates the legal obligations of a belligerent occupier (see A/ES-10/273); and the Palestinians have the right to self-determination, including the creation of a viable and sovereign State in their homeland (General Assembly resolution 3236(xxix) of 22 November 1974, Security Council resolution 1397 (2002), and General Assembly resolution 58/292 of 6 May 2004). As the United Nations Secretary-General Kofi A. Annan, said in his address to the Summit Meeting of the Arab League in March 2002: “There is no conflict in the world today whose solution is so clear, so widely agreed upon, and so necessary to world peace as the Israeli-Palestinian conflict.” But such a solution, as he implied, would have to be anchored in the inherent rights of the individuals and peoples who live there, rather than permitting the inequities of power politics to continue pushing the Middle East deeper into a morass. 

Yet, in the face of all this, the Israeli-Palestinian conflict remains a zone of legal exceptionalism. Binding resolutions are scorned, Security Council investigations are rebuffed, Advisory Opinions of the International Court of Justice go unheeded, and the obligations of international conventions and treaties are dismissed. This obstructionism fails not only the requirements of law, but also the demands of realism. No conflict can be transformed into an equitable and viable resolution where one party can successfully plead exemptions and special entitlements forbidden to others. The lack of political will to enforce compliance with international law and universally recognized rights – the result of Israeli obstinacy, American obeisance, the paralysis of the international community, Arab schisms, and Palestinian impotence – has allowed the matter to fester for almost six decades. Besides debasing the efficacy of international law, the irresolution of this conflict has destabilized the entire region, fuelled the tensions between the West and the Arab and Muslim worlds, perpetuated the world's largest and longest-lasting refugee problem, adversely affected the global economy, and consumed an inordinate amount of diplomatic oxygen. 

However, a regime of legal exceptionalism does not necessarily mean that legal strategies and concrete remedies are beyond the reach of those who support a rights-based approach to compassionately resolving the conflict in the Middle East. This paper will discuss the availability of an underappreciated yet likely effective legal strategy to challenge the entrenchment and continuation of the Israeli settlements project and the separation wall. This legal strategy, which would focus on those countries that have enacted the Statute of Rome into their domestic legislation, probably presents the best available legal opportunity to effectively implement, albeit indirectly, the ruling of the International Court of Justice on the separation wall, and to meaningfully sanction Israel as long as it maintains its settler-implantation project on occupied Palestinian land in defiance of world opinion and international law. 

II. International obligations 

The separation wall and the Israeli settlements in the West Bank and East Jerusalem are inseparable projects. If there were no settlements, Israel would not have built the wall within the occupied territories. The route of the wall, 90 per cent of which is destined to be built on occupied land, is designed to maximize the number of Jewish settlers and settlements on its western side, and maximize the number of Palestinians and their communities on its eastern side.43 As Daniel Seiderman, an Israeli lawyer who represents Palestinians whose lands have been confiscated because of the wall has recently said that Israel says nothing is irreversible and that the fence can be removed but that it is not the fence that creates irreversibility, it is the interface of the wall with the settlement activity.”44 The settlements are the principal Israeli strategy by which to extend demographic control over much of the occupied territories,45 and the wall is an integral political tool to ensure that the largest settlement blocs and the lands surrounding them remain under Israeli sovereign control in any final peace agreement.46

That the Israeli settlements are illegal and contrary to international law has been universally accepted, with the exception of Israel, the United States and a handful of other nations.47 The transfer or encouragement by an occupying power of the settlement of parts of its civilian population to settle on occupied lands has been implicitly prohibited by international law since the Hague Convention and its Regulations,48 and has been expressly forbidden since the adoption of the Fourth Geneva Convention of 1949.49 Subsequently, the international interdiction was strengthened in 1977 to state that settler implantation projects amounted to a “grave breach” of international humanitarian law.50 With this body of international law in mind, the United Nations Security Council has held on a number of occasions that the Israeli settlements are contrary to international law (Security Council resolutions 446 (1979), 452 (1979), 465 (1980), 471 (1980), 476 (1980).51 So has the United Nations General Assembly.52 The International Court of Justice, in its July 2004 advisory opinion on the legality of the separation wall, ruled that: “…the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law” (para. 20).

Settlement implantation projects have been prohibited by the international community because they invariably result in indigenous civilian dispossession, environmental destruction, apartheid-like social and legal structures, segregated labour markets, political instability and significant human rights violations..53 Above all, they are condemned in international law because they abrogate the right of the indigenous people to self-determination,54 which is, after the right to life, perhaps the single most important human right of all because no other rights are possible without it. The rupture between an indigenous community and its territories is not only the frequent consequence of settler implantation, but invariably its very purpose. This is achieved either by the swamping of the territory through settler encroachment in order to create a new majority,55 or, at the very least, by the establishment of a critical mass of settlers so that the dominant power can justify a sustained military and political presence to maintain ‘security’ for the privileged minority.56

Illustrative examples from history include the British settlement of Scottish and English Protestants into Catholic Ireland, the French in Algeria, the Dutch and the British in South Africa, the transfer by the Nazis of German-speaking peoples into newly conquered lands during the Second World War, the Soviet Union’s infusion of Russians into the Baltic republics, and the export of Moroccan settlers into the Western Sahara. 

The legal prohibition against settler implantation projects took a significant step forward with the adoption of the Statute of Rome in 1998. The achievement of the Statute has been to create, for the first time, a permanent international court with jurisdiction over genocide, war crimes and crimes against humanity, with a focus on individual, rather than State, responsibility. Article 8 of the Rome Statute provides the Court with jurisdiction over an extensive list of codified war crimes “in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.” Among the proscribed war crimes, as detailed in article 8(2)(b)(viii), is:

The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.

Respecting settler implantation, article 8(2)(b)(viii) is very similar to the language found in article 49(6) of the Fourth Geneva Convention, with one visible addition. The provision adds the term “directly or indirectly,” which broadens, or at least clarifies, the express scope of the original provision to include any active or passive support by the occupying power of a settler implantation project.57

The significance of the Statute on this issue is that the world community’s opposition to the practice has been elevated to a war crime, among the ultimate of interdictions in international criminal law. In Rome, Israel voted against the adoption of the Statute, and subsequently refused to ratify it because of the probable consequences of article 8(2)(b)(viii).58
Without the ratification, Israel’s citizens lie outside of the purview of the Statute and the jurisdiction of the International Criminal Court. As such, Israeli officials responsible for the implementation or administration of the settlements programme in the occupied territories cannot foreseeably be indicted under the Statute.59 Another limitation of the statute is that it applies only to proscribed acts committed after 1 July 2002, the date on which the Court formally came into existence. Thus, even if Israel had submitted itself to the Statute and the Court, individuals in Israel who had played a culpable role in the formation and growth of the settlement project prior to the implementation date of the Court could not be indicted under the Statute for actions committed before that date. 

III. Domestic remedies 

Following the adoption of the Statute of Rome, a number of States have enacted legislation that incorporates all of the International Criminal Court crimes listed in the Statute into their domestic legal system. Persons who are alleged to have committed a proscribed act falling within the definitions of genocide, war crimes or crimes against humanity, and who are either citizens or residents of the State, or who are physically on the soil of that State, can be indicted and tried under the domestic laws of the State for breaches of international criminal law. In effect, those States have created a parallel national legal structure that both complements and supplements the International Criminal Court. Among the States that have enacted legislation to codify the Rome provisions into their criminal law system are Australia,60 Canada,61Germany,62 the Netherlands,63 New Zealand,64 South Africa,65 and the United Kingdom.66

Among the features of this national incorporation of the Statute of Rome definitions of international crimes is a universal jurisdictional aspect not present in the International Criminal Court. Those domestic statutes are not limited in their application by the refusal of another State to have ratified the Statute. Rather, the crimes are deemed to have universal scope and apply to any individual physically present in the State for any offence stated in the legislation, regardless of where the offence occurred.67 Thus, a citizen of a State that has not subjected itself to the jurisdiction of the International Criminal Court can nevertheless be indicted and tried for a proscribed international crime in one of the States that has incorporated the Statute, should the individual otherwise come within the jurisdiction of that State (such as being present on the soil of that State) and consent for prosecution has been given by the designated legal official.68

Canada possesses a second advantage over the Statute of Rome that is not found in the other national statutes. For International Criminal Court crimes committed outside Canada, the Crimes Against Humanity and War Crimes Act permits retrospective application, provided that the crime was recognized under customary international law at the relevant time. In contrast, the International Criminal Court is restricted in its jurisdiction to defined crimes that occurred only after 1 July 2002. The other national statutes do not contain any retrospective feature for war crimes.69 However, none of the statutes contains any prospective time limitation periods that would restrict an indictment for an international crime that occurred any time after the enactment of the national statute. 

All of the States that have incorporated the Statute of Rome into their domestic legislation have included the provision that stipulates a war crime as the transfer of the civilian population of an occupying power into the territory it occupies. For example, Canada’s Crimes against Humanity and War Crimes Act defines a war crime that has occurred outside of Canada in the following terms:

S. 6(1) Every person who, either before or after the coming into force of this section, commits outside Canada
(c) a war crime 
is guilty of an indictable offence and may be prosecuted for that offence

6(3)The definitions in this subsection apply in this section.
“war crimes” means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war s crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
6(4) For greater certainty, crimes described in articles 6 and 7 and paragraph 2 of article 8 of the Rome Statute are, as of 17 July 1998, crimes according to customary international law, and may be crimes according to customary international law before that date. This does not limit or prejudice in any way the application of existing or developing rules of international law. 
Schedule 2(1) of the Act incorporates virtually the same list of prohibitions against genocide, war crimes and crimes against humanity that appears in the Statute of Rome. This includes the prohibition against settler implantation, with precisely the same wording as in the Statute:

(viii) The transfer, directly or indirectly, by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.

The other States that have incorporated the Statute into their domestic laws have adopted the same prohibition against settler implantation in identical or substantially similar language. All of them, except one, have specifically defined “population transfer” as a war crime in the same or similar language as the Statute of Rome. New Zealand’s International Crimes and International Criminal Court Act of 2000 provides no specific definitions, but simply refers to the crimes as defined in the Statute of Rome, which arrives at the same result.

All of the incorporated statutes contain a broad definition of liability for the commission of proscribed acts. The Canadian and New Zealand statutes provide that “every person” who commits a war crime is guilty of an indictable offence, while the United Kingdom and Australia use the term “a person”. South Africa employs the term “any person”, and the English translation of The Netherlands statute uses “anyone.” While domestic legislation in these countries might grant temporary immunity to heads of State or Government or to senior diplomatic officers, the incorporated legislation on international crimes would appear to apply to any other political, military, or administrative operative who has played a significant contributory role in the establishment, administration, perpetuation, or defence of a settler implantation project. Upon a conviction of an international crime under the national statutes, substantial criminal penalties may be imposed by the domestic courts.70


IV. Conclusions

There are a number of strategies that can be invoked by civil society to campaign against the wall and in support of the fulfilment of the July 2004 advisory opinion of the International Court of Justice. Legal strategies can often form an important part of a broader political and social campaign, if the foundation in law exists to effectively advance the legal and public features of the issue. However, within the realm of the law, the possibility of directly challenging the wall through either national courts or through an international tribunal, and thereby yield an applicable and meaningful remedy, appears remote. No foundation exists in most national legal systems to enforce or apply the advisory opinion of the Court, and no international tribunal or body, short of the United Nations Security Council or the General Assembly, can provide either an effective remedy or an obligatory direction for united action which could insist that Israel heed the requirements of international law and dismantle the wall, or otherwise face international approbation and sanctions.

But an effective and available legal approach does exist within the national legal systems of a number of respected States that can respond to the absence of political will, and the unavailability of a direct legal basis, to challenge the wall and its patent illegality in international law. The wall is intimately tied up with the Israeli settlement project. The international community has long accepted that the settlements are illegal, as per the general application of the cornerstone conventions of international humanitarian and human rights law, as well as the specific pronouncements of the United Nations and significant regional bodies such as the European Community. The long-standing prohibition against population transfers by an occupying power has now been elevated to a war crime by the 1998 Statute of Rome, and this specific interdiction has been incorporated into the domestic legislation of at least seven States. This is little legal doubt that the Israeli settlements fall squarely within the Statute’s prohibition against population transfers. 

The domestication of the Statute of Rome and, specifically, the inclusion of “population transfer” as a war crime in these national legal systems, is much more than an elegant sentiment or a noble statement of intentions. Rather, it has become both a political commitment and a legal obligation. The task now becomes how to realize these commitments and obligations. The obvious route would be to mount the necessary legal and evidentiary case in order to establish that the Israeli settlements, and those Israeli political, military and settlement movement leaders who have engineered the ongoing settlement project, fall within these domestic prohibitions against population transfer. As long as Israel remains outside of the jurisdiction of the International Criminal Court, nothing can be done at an international criminal law judicial forum. But much can be done at the national level, because these domestic statutes provide an available political route and an accessible legal forum to litigate the promise of international criminal law: that war crimes and crimes against humanity should know no immunity.