THE International Court of Justice (ICJ), principal judicial organ of the United Nations, decisively condemned in July Israel’s plan to enclose the Palestinians within a wall. Despite this, Ariel Sharon’s government is going ahead with the project amid escalating violence, especially in Gaza.

The UN Secretary General, on behalf of the General Assembly, requested the ICJ’s advisory opinion on this question: "What are the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?" (1).

The force and clarity of the opinion handed down by the court contrasts with the ambiguous attitude of many western countries. The court had to listen to numerous arguments, especially from European governments, intended to dissuade it from pronouncing judgment. The opinion that it delivered has proved of crucial importance since it outlines a legal framework for the search for a solution to the Israeli-Palestinian conflict - the more so since the search for a military solution has long been blocked and recent attempts at political and diplomatic solutions are at a standstill (2).

Democratic nations that recognise the primacy of law in governing international relations should have been delighted by the decision to refer this matter to the court, with its promise of a judicial settlement of a situation that had degenerated into chaos. But they were not. In fact some states used every pretext to halt proceedings, having failed to prevent the matter being referred to the court.

They argued that the ICJ had no competence in the matter on the grounds that the General Assembly, which had sought its opinion, itself had no competence to rule on a question already before the Security Council. But although, as the court asserted, the council has primary responsibility for peacekeeping, it shares this with the assembly, which was therefore within its competence in seeking a legal opinion on a situation with such serious implications for maintaining peace.

Another argument was that the General Assembly was not entitled to meet in emergency session on the basis of Resolution 377 A (V) (3), which authorises such meetings in cases where the Security Council has failed to meet its responsibilities, since the council fulfilled those responsibilities by approving the roadmap. In fact on 14 October 2003, following a veto by a permanent member, the council rejected a draft resolution condemning the construction of the wall - a failure that justified the assembly in tackling the issue.

Then there was the argument that the question was political rather than legal. The court replied that since the political and legal aspects of any international question are inextricably linked, it was competent to rule.

Several major powers tried to persuade the court not to respond to the request for an opinion. But since the court has discretionary power in the matter, there would have to be overwhelming reasons for it to refuse to make a pronouncement. Israel objected that the court could not settle a dispute where one party, Israel, did not consent to its involvement. The court rejected this on the grounds that the wall’s construction had implications for international peace and security; it was not simply a bilateral matter between Israel and Palestine. The wall, it argued, was the direct concern of the UN, which had assumed a permanent responsibility with regard to Palestine arising from the mandate and the UN resolution of 29 November 1947 on the proposed partition of Palestine.

None of these obstructive arguments succeeded. Then it was asserted that an opinion was inappropriate, since it would interfere with current efforts to reach a political solution and would undermine the process started by the roadmap. It was claimed that the court was not in full possession of all the requisite facts and evidence about the situation on the ground and should therefore refrain from expressing an opinion. The court replied that the various UN reports, with information from other sources, constituted the basis for a valid appraisal of the construction of the wall and its likely humanitarian and socio-economic consequences for the Palestinian people.

Another crude argument put forward was that the court’s opinion would lack any useful purpose since the General Assembly had already declared the wall illegal. The court replied that it was not responsible for deciding whether the assembly needed the opinion it had requested; it could determine its own needs.

The final argument, advanced by Israel, was that "since Palestine was responsible for the acts of violence that the wall was aimed at addressing, it could not ask the court to rule on a situation resulting from its own wrongdoing". The court responded that it was the General Assembly, rather than any individual state or entity, that had requested the opinion. That opinion would be addressed to the Assembly.

Having sidestepped these traps, the court found its way to the essential question: the legal consequences of the wall’s construction. To clarify the issues, it retraced the sad, tortuous history of the region: the break-up of the Ottoman empire (4); the status accorded to Palestine in 1922 under the mandate; and the succession of crises and wars which, from 1947 on, were the backdrop for the playing out of Middle Eastern politics.

The court concluded that the area through which the wall runs is a territory under military occupation, as defined by international law, and consequently all the international legal instruments governing armed conflicts apply there. This places Israel under an absolute obligation to respect international humanitarian law as defined by the Hague Regulations of 1907 and by the Fourth Geneva Convention of 1949.

Then there was the question of whether international human rights conventions, to which Israel is party, apply within the occupied Palestinian territories. The Israeli government had showed its contempt for universally accepted concepts of human rights by claiming that these conventions were only applicable in times of peace and that in a conflict situation only humanitarian law was relevant. The court rejected this argument and affirmed that the protection guaranteed by human-rights conventions does not cease in time of war.

The ICJ then condemned numerous violations of rights that had resulted from the construction of the wall. These include territorial encroachment; the transfer of Israeli civilians into the occupied territories through the implantation of settlements; the destruction and requisition of Palestinian properties; restrictions on freedom of movement; and damage to the socio-economic conditions of the Palestinians.

The ICJ was unimpressed by attempts to justify the wall on the grounds of security and legitimate self-defence. It recognised Israel’s right, and duty, to protect itself against lethal acts of violence, but it pointed out that such measures must conform to international law and that Israel could not "invoke resolutions recognising an inherent right to self-defence" (5), since these only apply in the case of armed aggression by one state against another. The acts of violence of which Israel has been a victim cannot be imputed to a foreign state, and responsibility for the current situation belongs to Israel, since it controls the territory within which the violence is taking place.

Also rejected was the argument for a state of necessity that would allow any government to breach guaranteed rights if it has no other means of self-defence at its disposal. The court was not convinced that the construction of the wall was the only means of protection available to Israel.

Finally - and crucially - the ICJ made the universal right to self-determination a key element in its opinion and insisted that the application of this principle to the Israeli-Palestinian conflict must be a precondition for a fair and lasting peace in the region. It invited all states to observe this principle and to assist in its application.

Significantly, the court was prepared to listen to the Palestinian position, even though its statutes lay down that only states and international organisations can be heard. This is all the more remarkable since support for the Palestinian cause had become muted during the proceedings (6).

The ICJ declared Israel’s construction of the wall in the occupied Palestinian territories illegal. Israel is thus obliged to demolish the structure, repeal all legislation relating to it, and make reparation, by virtue of its legal responsibility, for all damage caused (7). Third-party states are placed under an obligation not to recognise the illegal situation resulting from the wall’s construction.

The 15 judges were almost unanimous in supporting this opinion. There was just one voice dissenting from the main body of the text and two opposing the obligations placed upon third-party states. Although the ICJ’s opinion is not binding, the legal position has been stated and guidelines laid down for the future actions of the General Assembly and international community.

This is a matter of urgency if we are to halt the endless cycle of violence and frustrate the strategies of political anaesthesia that have been designed to prevent the creation of a Palestinian state living at peace with Israel. Since law and politics move at different speeds, we must try to help one catch up with the other.