BADIL Resource Center for Palestinian Residency and Refugee

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Survey of Palestinian Refugees and Internally Displaced Persons (2006-2007)
4.6.8 The International Court of Justice and the United Nations Register of Damage
The International Court of Justice, established in 1945 by the Charter of the United Nations, is the highest legal
authority in the world, and issues rulings on contentious and advisory cases.
built by Israel, the occupying Power, in the Occupied Palestinian Territory?” 236
In October 2003, the UN
General Assembly demanded
that “Israel stop and reverse the
construction of the Wall in the
occupied Palestinian territory,
including in and around eastern
Jerusalem, which is in departure
of the Armistice Line of 1949
and is in contradiction to relevant
provisions of international law.” 235
When Israel continued to build
the Wall, the UN General
Assembly passed resolution ES-
10/14 requesting the International
Court of Justice (ICJ) to issue
an Advisory Opinion on the
following: “What are the legal
The Peace Palace in The Hague (Netherlands), seat of the International Court of Justice. © Jeroen Bouman.
consequences arising from the
construction of the wall being
The ICJ issued its advisory opinion on 9 July 2004. It ruled that the Wall was illegal and violated the fundamental rights
of the Palestinian people, in particular their right to self-determination. The ICJ also affirmed that Israel “cannot rely on
a right to self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall. ”237
The route of the Wall is in violation of Article 49(6) of the Fourth Geneva Convention, because it was largely determined
by the location of Jewish colonies, and not by security concerns. 238 The Court further “considers that the construction of
the wall and its associated regime create a ‘fait accompli’ on the ground that could well become permanent, in which case,
and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.” 239
The Court also found that
[…] since a significant number of Palestinians have already been compelled by the construction of the
wall and its associated regime to depart from certain areas, a process that will continue as more of the
wall is built, that construction, coupled with the establishment of the Israeli settlements […] is tending
to alter the demographic composition of the [occupied Palestinian territory]. 240
The Court ruled that it was incumbent upon Israel to cease the construction of the Wall and dismantle the sections already
built. It further requested Israel to make reparations for all damage caused by its unlawful act. 241 Of particular relevance
for Palestinian refugees and IDPs is the affirmation by the ICJ of the principle of reparation, which includes the right to
return, as well as restitution and compensation for the unlawful taking of private property. Israel officially rejected the ICJ
ruling and has so far failed to comply with the demands therein.
The ICJ affirmed the responsibility of the international community and states “not to recognize the illegal situation
resulting from the construction of the wall and not to render assistance in maintaining the situation created by such
construction.” States Party to the Fourth Geneva Convention were requested to “ensure compliance by Israel with
international humanitarian law.” 242 The Court also insisted on the fact that the violation of the right to self-determination,
which is a right erga omnes, entails certain obligations for states, which should “promote, through joint and separate action,