10 Years after the Advisory Opinion on the Wall in Occupied Palestine: Time for Concrete Action

July 9^th 2014

To:

Secretary-General of the United Nations Ban ki Moon
High Contracting Parties to the Geneva Conventions 

This letter is joined by 86 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: 

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; 

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;

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; 

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;

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-10/15 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. 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 studies 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 nonstate 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 instruments 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 settler colonies. The labelling of products as originating from the colonies, while continuing to trade, is not sufficient to meet the obligations of nonrecognition of, and noncooperation 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 IHL;
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: 

1. Implementing trade, military and/or diplomatic sanctions as a countermeasure;
2. Creating an enabling environment for the accession of Palestine to the Rome Statute; 
3. Depositing a statement affirming applicability of the Fourth Geneva Convention in the oPt, including Jerusalem, the West Bank and Gaza Strip;
4. 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;
5. 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;
6. 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 these persistent grave breaches, gross violations and codified crimes, ten years of inertia is far too long.

Initial signatories:

Abe, Kohki, professor of International Law, Kanagawa University School of Law, Japan

Abi-Saab, Georges, former ad hoc Judge of the International Court of Justice, a former Judge of the Appeals Chamber of the International Criminal Court for the former Yugoslavia (ICTY) and Rwanda (ICTR), honorary professor of International Law at the Graduate Institute of International and Development Studies in Geneva, honorary professor at Cairo University Faculty of Law and a member of the Institute of International Law, Egypt

Abu Zayd, Karen, Human Rights Council appointed Commissioner (for the Commission of Inquiry on Syria)

Adely, Suzanne, member of the National Lawyers Guild, International Association of Democratic Lawyers, USA

Ahmad, Bina, National Vice President of the National Lawyers Guild, The Legal Aid Society, USA

Akram, Susan M., clinical professor and supervising attorney, International Human Rights Program, Boston University School of Law, USA

Al-Qasim, Anis, lawyer, associate fellow of the Institute of Advanced Legal Studies, University of London, chairman of the Legal Committee of the Palestine National Council, Palestine, Palestine Year book of international law

Amaral, Roberto, professor at the Catholic University PUC Rio de Janeiro, member of the Institute of Brazilian Lawyers (Instituto dos Advogados Brasileiros), member of the Brazilian Center of Latinamerican Studies, ex-minister of Science and Technology 

Arraf, Huwaida, lawyer and human rights advocate, USA

Balian, Hrair, director of Conflict Resolution Program, The Carter Center, USA

Bekker, Pieter, professor of International Law, University of Dundee, Scotland

Bennoune, Karima, professor of Law, Martin Luther King Jr. Hall research scholar, University of California at Davis School of Law

Bisharat, George, University of California Hastings College of the Law, USA/Palestine

Bissoto, Maria Carolina, lawyer, Brazil

Bomse, Audrey, Co-Chair of the National Lawyers Guild Palestine Subcommittee, USA

Bowring, Bill, barrister, director of the LLM/MA in Human Rights, School of Law Birkbeck, University of London

Boyle, Francis A., professor of International Law, University of Illinois College of Law, Champaign, Illinois, USA

Brichs, Ferran Izquierdo, professor at international relations, department of public law, Autonomous University of Barcelona, Spain

Brygfjeld, Kjell, lawyer, with the right to meet in the Supreme Court, Norway

Buttu, Diana, Palestinian-Canadian lawyer, former spokesperson for the Palestine Liberation Organization, Canada/Palestine

Carrion, Francisco, president of the UN Committee for the Protection of the Rights of All Migrant Workers and Members of Their Families, former Minister of Foreign Affairs of Ecuador 

Castelo Branco, Paulo, lawyer, president of the Coordination ‘Pace in Palestine’ of the Federal Council of the Brazilian Bar Association, Brazil 

Cazorla, M Isabel Torres, professor of International Public Law, Law Faculty, University of Malaga, Spain

Chargoia, Pablo, Human Rights lawyer, Uruguay

David, Eric, professor at the Free University of Brussels (B.L.U.) in Public International Law, Law on International Organisations, International Criminal Law, Law of Armed Conflicts, president of the Advisory Commission on International Humanitarian Law of the Belgian Red Cross (French-speaking section), president of the Centre for International Law at the B.L.U., member of the International Humanitarian Fact-finding Commission, Counsel for various states at the International Court of Justice and the International Criminal Tribunal for Rwanda, 

De la Vega, Pablo, lawyer, regional coordinator of the Interamerican Paltform for Human Rights, Democracy and Development(PIDHDD), Ecuador

De Waart, Paul, professor emeritus of International Law VU Amsterdam, member the Independent Fact Finding Committee on Gaza to the League of Arab States, established in February 2009 , chaired by John Dugard, Chair of the joint Academic Project Dynamics of Self-Determination of Israeli, Palestinian and Western researchers 1988-1993, The Netherlands

Devers, Gilles, lawyer, Lyon, France

Dhavan, Rajeev, advocate of the Supreme Court of India, Commissioner of the International Commission of Jurists, India

Díaz, José E., lawyer of political prisoners and human rights organizations, Uruguay

Dubuisson, Jean-Franois, professor of International Law, Center of International Law at the Free University of Brussels (ULB), Belgium

Dugard, John, Chair in Public International Law, member of the UN International Law Commission, former UN Special Rapporteur on Diplomatic Protection, former UN Special Rapporteur for the Occupied Palestinian Territorities, South Africa

Endresen, Bent, lawyer, with the right to meet in the Supreme Court, Norway

Falk, Richard, Milbank Professor of International Law Emeritus, Princeton University, UN Special Rapporteur for the Occupied Palestinian Territorities, 2008-2014, USA

Gallagher, Katherine, Senior Staff Attorney, Center for Constitutional Rights, USA

Gianelli, Fausto, lawyer, Italy

Gifford (Lord), Anthony, Queens Council, UK

Gowlland-Debbas, Vera, emeritus professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland

Hadler, Pål, lawyer, Norway

Hansen, Peter, Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) from 1996-2005, Switzerland

Hassan, Zaha, Palestinian-American lawyer, human rights advocate, USA

Høin, Geir, lawyer, Norway

Ie, Masaji, professor emeritus of International Law, Kobe City University of Foreign Studies and Himeji Dokkyo University, Japan

Ito, Kazuko, attorney at Law, Secretary General, Human Rights Now, Japan

Jaichand, Vinodh, professor of Law and dean of the School of Law, University of the Witwatersrand, Johannesburg, former deputy director, Irish Centre for Human Rights, Galway, former director, Lawyers for Human Rights, Pretoria, South Africa 

Jaising, Indira, Senior Advocate, former Additional Solicitor General of India

Karadas, Cemalettin, lecturer on International Law, General Secretary of International Law Association-Turkey

Khashan, Ali, former Palestinian Minister of Justice, founder and former Dean of Faculty of Law, University of Jerusalem, professor of constitutional law and human rights, Palestine

Kiyosue, Aisa, associate professor of Constitutional Law and Family Law, Muroran Institute of Technology, Japan

Lahood, Maria, Centre for Constitutional Rights USA

Loureno de Almeida, Wellington, University of Brasilia, master’s programme in Human Rights, Brazil

Lund, Ketil, lawyer, former Norwegian Supreme Court Justice and ICJ Commissioner, Norway

Machover, Daniel, head of civil litigation for Hickman & Rose Solicitors in London, co-founder of Lawyers for Palestinian Human Rights, UK

Maielo, Ana Paula, professor at the State University Paraíba, Brazil

Mansfield, Michael, Queens Council, UK

Martinez, Michel Angela, Ph.D. candidate, Human Rights and Visual Culture, USC, Politics and International Relations Program, USA

Medani, Amin Mekki, lawyer/partner Elkarib and Medani (Khartoum), legal scholar, former Sudanese Cabinet Minister, magistrate, lecturer in law, OHCHR representative in Palestine, Croatia, Afghanistan and Cambodia, former president of the Arab Organization for Human Rights, Sudan

Mirer, Jeanne, president of the International Association of Democratic Lawyers, USA

Moerenhout, Tom, consultant at the Geneva Graduate Institute of International and Development Studies, Switzerland

Moreau, Ernesto, lawyer, co-president of the Permanent Assembly for Human Rights (APDH), ex-president of the Association of Lawyers of Buenos Aires (AABA), Argentina

Moto, Yuriko, visiting researcher, Centre for Asia Pacific Partnership, Osaka University of Economics and Law, Japan

Pace, John, senior visiting fellow, Australian Human Rights Centre, Faculty of Law, University of New South Wales, Australia

Pacheco Pacifico, Andrea, associate professor of international law/international relations at State University Paraíba, Brazil

Pallin, Jose Antonio Martin, member of the Spanish Supreme Court, Spain

Pech, Norman, emeritus professor at Hamburg University, former member of parliament, expert in international law, Germany

Petraglia, Federico lvarez, lawyer, former judge, Uruguay

Pinheiro, Paulo Sérgio , adjunct professor of International Studies, Watson Institute for International Studies, Brown University, USA; research associate, Center for the Study of Violence, University of So Paulo, NEV/USP, Brazil

Ratner, Michael, president emeritus, Center for Constitutional Rights

Ratner, Michael, president emeritus, Center for Constitutional Rights, USA

Rivas Lara, Luca, professor at the National University of Distance Education (UNED), Spain

Rodrigues Loureiro, João Vitor, University of Brasilia, master’s programme in Human Rights, Brazil

Romero, Enrique Santiago, lawyer, Uruguay

Ruiz Ferreira, Carlos Enrique, professor of international relations (focus on human rights), State University Paraíba, Brazil

Schechla, Joseph, former programs coordinator of the OHCHR in Palestine, former representative of the OHCHR in Tunis, coordinator of the Housing and Land Rights Network

Schmidt, Martha L., attorney and counselor, USA

Serrano, Pedro Estevam, professor of constitutional Law at the Catholic University PUC of São Paulo, Brazil

Soroeta, Juan, professor of International Public Law, University of the Basque Country, Spain

Stabell, Harald, lawyer, with the right to meet in the Supreme Court, Norway

Stuby, Gerhard, professor at the University of Bremen, Germany

Szmukler, Beinusz, president of the Consultative Council of the American Association of Jurists, ex-president of the Lawyers Association of Buenos Aires, councilor of the National Judiciary of Argentina

Thiele, Bret, International Human Rights Lawyer, Co-Executive Director of the Global Initiative for Economic, Social and Cultural Rights, USA

Van Agt, Andreas, chairman of The Rights Forum, former Prime Minister of the Netherlands

Van Boven, Theo, honorary professor of international law, Maastricht
University, Netherlands

Yuriko, Moto, visiting researcher, Centre for Asia Pacific Partnership, Osaka University of Economics and Law, Japan

Zamorano, Carlos, president of the Argentine League for Human Rights, Argentina

Zegveld, Liesbeth, human rights lawyer, founder of the Nuhanovic Foundation, The Netherlands

Organizational signatories: 

Palestine:

Adalah – The Legal Center for Arab Minority Rights in Israel

Addameer Association for Human Rights

Addameer, Prisoner Support and Human Rights Association

Al Haq

Al Mezan Center for Human Rights

Al-Quds Human Rights Clinic, Al-Quds University

Arab Organization for Human Rights

Center for Defense of Liberties and Civil Rights “Hurryyat” 

Civic Coalition for Palestinian Rights in Jerusalem

Defence for Children International, Palestine Section

Jerusalem Legal Aid and Human Rights Center

MUSAWA, The Palestinian Center for the Independence of the Judiciary and the Legal Profession 

Palestinian Centre for Human Rights

International:

American Association of Jurists – International

Argentine League for Human Rights (Liga Argentina por los Derechos del Hombre), Argentina

Coordination ‘Peace in Palestine’ of the Federal Council of the Brazilian Bar Association, Brazil

ELDH European Association of Lawyers for Democracy and World Human Rights, Europe

Forum of Lawyers of the Left (Foro de Abogados de Izquierdas), Spain

Global Initiative for Economic, Social and Cultural Rights, International

Housing and Land Rights Network/Habitat International Coalition, International

International Law Association,Turkey

Lawyers for Palestinian Human Rights, UK

Mothers and Families of the prisoners and disappeared, Uruguay 

National Association of Democratic Jurists (Associazione Nazionale Giuristi Democratici), Italy

National Lawyers Guild, USA

Peace and Justice Service (Servicio Paz y Justicia) – SERPAJ Chile

Peace and Justice Service (Servicio Paz y Justicia) – SERPAJ Colombia

Peace and Justice Service (Servicio Paz y Justicia) – SERPAJ Uruguay

Permanent Assembly for Human Rights (APDH), Argentina 

PLAN – Palestine Legal Action Network, International

PROGRESS Lawyers Network, Belgium

Russell Tribunal, International