The ICJ Opinion on the Separation Barrier: Designating the Entire West Bank as “Palestinian Territory”

No. 535   October 2005

• The International Court of Justice in The Hague (ICJ) in its advisory opinion on the legality of Israel’s separation barrier uncritically adopted the UN General Assembly phrase “Palestinian territories” as applying to all the territories.

• The UN General Assembly is a political body. It is not a global legislature that creates international law through its resolutions. Thus its designation of the whole of the West Bank as “Palestinian” is not a legal determination and should not have been adopted by the Court.

• The historical narrative set out in the ICJ Opinion was critically flawed and this was pointed out in the separate opinions of the minority judges.

• There has as yet been no legal definition of a future boundary between Israel and the territories of the Palestinian Authority. The 1949 Armistice line was not and is not a political boundary. Such a future boundary will have to be negotiated between the parties.

Use of the Term “Occupied Palestinian Territory” by the ICJ

The UN General Assembly is a political body and it was in this political context that the Assembly adopted resolutions recognizing the right of the Palestinians to create a future Palestinian state. It is not a global legislature that creates international law through its resolutions. Thus its designation of the whole of the West Bank as “Palestinian” must be seen as a political act and not as a legal determination.

It was the UN General Assembly that sought an advisory opinion from the ICJ about the legality of Israel’s security fence and in doing so it used the politicized language it had utilized in the past. The mandate of the ICJ is to apply international law, but in its opinion on the barrier it adopted the General Assembly’s political language without attempting to resolve the legal dilemma of how the area could be defined as occupied “Palestinian” territory. The ICJ opinion confined itself to stating its conclusion:

The Court accordingly finds that that [the IVth] Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.¹

The adoption by the Court of the UN General Assembly phrase “Palestinian territory” would appear to contradict the Court’s statement as to “there being no need for any enquiry into the precise prior status of those territories.”² Judge Pieter Kooijmans of The Netherlands, in a separate opinion, added, “The Court has refrained from taking a position with regard to territorial rights and the question of permanent status.”³

The designation of territory as belonging to an entity inherently implies that the entity concerned is a state or a subject of international law with its own territory and has the power “to exercise supreme authority over all persons and things within its territory.”⁴ The Palestinian Authority, although having some of the attributes of statehood, has not declared itself to be a state and does not comply with the recognized attributes of statehood.⁵

In 1988 the Palestine National Council declared a “State of Palestine,” but this was clearly a fiction at the time.⁶ Although the UN General Assembly acknowledged “the proclamation” and decided “the designation ‘Palestine’ should be used in place of the designation ‘Palestine Liberation Organization’ in the United Nations system,”⁷ the Assembly did not however declare that it recognized Palestine as a state and “Palestine” has not been accepted as a member state by any non-Arab international organization. Indeed, at the time when the General Assembly changed the PLO’s designation in the UN system to “Palestine,” the resolution made clear that it was not altering the political status of the Palestinian delegation, which was that of an observer mission.

The UN General Assembly since 1967 had faced the dilemma as to how to designate the territories. From 1948 till 1967 the West Bank had been under Jordanian rule and the Gaza Strip under Egyptian control. The UN General Assembly however refrained from designating these territories as occupied Jordanian or occupied Egyptian territory, presumably since the majority of states, including the Arab states, had not recognized the West Bank as Jordanian territory and Egypt had not even claimed sovereignty over the Gaza Strip.

From 1967 till 1976 the UN General Assembly resolved the dilemma by referring to occupied “Arab” territories and often simply as “occupied territories.” From 1976 onward, the increased political clout of the PLO at the UN led to a change. A 1976 UN General Assembly resolution referred to “the right of the Arab states and peoples whose territories are under Israeli occupation” (emphasis added).⁸ From 1977 the reference becomes “Palestinian and other Arab territories.”⁹ In 1979 the UN Security Council adopted similar language.¹⁰

The change to the use of the phrase “Palestinian” territory by the UN was presumably based on repeated UN General Assembly resolutions recognizing a Palestinian right to self-determination in the territories. It was also based on the premise that these territories would be the territory of a future Palestinian state. The UN did not however attempt to resolve the dilemma of how the West Bank could be defined as occupied “Palestinian” territory of a future state when its status as occupied territory presumably derived from Israel’s seizure of the area from Jordan, and a Palestinian state had never previously existed there, or anywhere.

Since Israel seized the West Bank from the Kingdom of Jordan in the 1967 Six-Day War, this territory has been essentially disputed land with the claimants being Israel, Jordan, and the Palestinians. Its ultimate status and boundaries will require negotiation between the parties, according to UN Security Council Resolutions 242 and 338.

It is relevant to note in this context that in March 1994, U.S. Ambassador to the UN Madeleine Albright, in an explanation of a vote at the UN Security Council, stated, “We simply do not support the description of the territories occupied by Israel in the 1967 war as occupied Palestinian territory. In the view of my government, this language could be taken to indicate sovereignty, a matter which both Israel and the PLO have agreed must be decided in negotiations on the final status of the territories.”¹¹

The Historical Narrative of the Court

In the historical narrative described by the Court, the paragraph describing the Armistice Agreement is followed immediately by a paragraph stating, “In the 1967 armed conflict, Israeli forces occupied all the territories which had constituted Palestine under British Mandate (including those known as the West Bank, lying to the east of the Green Line).”¹² The Jordanian rule is not even mentioned, and needless to say there is no examination of the Jordanian status in the West Bank.¹³ Judge Kooijmans, in a separate opinion, comments on this:

Nothing is said, however, about the status of the West Bank between the conclusion of the General Armistice Agreement in 1949 and the occupation by Israel in 1967, in spite of the fact that it is a generally known fact that it was placed by Jordan under its sovereignty but that this claim to sovereignty, which was relinquished only in 1988, was recognized by three states only.
The strange result of the Court’s reticence about the status of the West Bank between 1949 and 1967 is that it is only by implication that the reader is able to understand that it was under Jordanian control…without ever being explicitly informed that the West Bank had been placed under Jordanian authority.¹⁴

Indeed, by ignoring Jordan’s previous position in the West Bank, the ICJ advanced a narrative that ignores the fact that in 1967 Israel entered this territory in self-defense when Jordanian forces opened fire on Israeli civilian positions. The uninitiated student of history might believe that, prior to 1967, there was a pre-existing Palestinian state, which Israel one day decided to invade.

Judge Rosalyn Higgins of the United Kingdom, in her separate opinion, and in what is perhaps an English understatement, comments: “I find the ‘history’ as recounted by the Court in paragraphs 71-76 neither balanced nor satisfactory.”¹⁵

However, according to Judge Awn Shawkat Al-Khasawneh of Jordan:

The Court followed a wise course in steering away from embarking on an enquiry into the precise prior status of those territories not only because such an enquiry is unnecessary for the purpose of establishing their present status as occupied territories and affirming the de jure applicability of the Fourth Geneva Convention to them, but also because the prior status of the territories would make no difference whatsoever to their present status as occupied territories except in the event that they were terra nullius when they were occupied by Israel.¹⁶

Judge Al-Khasawneh may have wished to avoid a full examination of the “prior status” of the West Bank, where Jordan’s claims of sovereignty were not recognized by most of the world. Further historical investigation would reveal that the last legal sovereign over the West Bank was the Ottoman Empire, which however renounced its claims after the First World War. This complexity however would fly in the face of the effort to establish that the West Bank in its entirety was originally Palestinian territory.

Not only does the ICJ Opinion ignore the Jordanian presence in the territories, from 1948 till 1967, it studiously ignores the salient provisions of the 1922 League of Nations Mandate for Palestine. In paragraph 70 of the Opinion, the League of Nations Mandate for Palestine is recalled; however the ICJ says absolutely nothing about the fact that the League of Nations Mandate referred to “the establishment in Palestine of a national home for the Jewish people” and that this injunction was understood at the time by the League of Nations and by the British Mandatory Power as applying to the whole of Palestine west of the River Jordan, that is, including the present-day West Bank.

The Green Line

The ICJ Opinion used the 1949 Armistice demarcation line, the so-called “Green Line,” to determine the extent of the “occupied Palestinian territory.” The Court made no reference to the fact that the Armistice Agreement that created the Green Line had terminated and that no Arab state had ever recognized the Green Line as an international boundary, nor had Israel given the line such recognition.

Basing itself on UN resolutions, the Court concluded that “occupied Palestinian territory” included East Jerusalem. The Court failed to examine by what authority the UN made such a determination. The Court failed to examine questions related to East Jerusalem as “occupied Palestinian territory,” such as the status of the Jewish Quarter of the Old City, which the Jordanians occupied in 1948, or the status of Jewish suburbs of Jerusalem built since 1967 on previously barren hills.

The Court’s Conclusions

I believe that the Court’s opinion was seriously flawed from the outset by the Court’s unquestioning acceptance of the definition of all the area under discussion as “occupied Palestinian territory.” The Court failed to examine Jordan’s status in the area. Nor did it determine how an area held by Jordan became “occupied Palestinian territory.” Nor did it examine what effect such a transformation had on the laws of occupation.

The Court refrained from declaring that Israel’s occupation of the West Bank was illegal, and this is particularly pertinent since one judge did make such a declaration in his separate opinion.¹⁷ Israel may, perhaps, take some further comfort from the fact that, by implication, the ICJ Opinion invalidates objections by Arab states to the legitimacy of Israeli sovereignty on the Israeli side of the Green Line, including West Jerusalem – a result which, one would assume, was not foreseen by the sponsors of the application to the Court. Nevertheless, by slavishly following the use of UN General Assembly language, the Court has done a disservice to international law.

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Notes

1. ICJ Opinion, at para. 101.
2. ICJ Opinion, opinion of the Court, at para. 101.
3. Separate Opinion of Judge Kooijmans, para. 30, available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Kooijmans.htm.
4. Oppenheims International Law, Sir Robert Jennings and Sir Arthur Watts, eds. (London: Longman, 1996), vol. 1, 382.
5. See C.C. 2538/00 Jerusalem District Court, Irena Litwak Nuritz et al v. The Palestinian Authority and Yasser Arafat (62(2) P. M. 776.
6. See Malcolm N. Shaw, International Law (Cambridge: Cambridge University Press, 5th ed., 2003), 222.
7. UNGA Resolution A/Res./43/177 of 15 December 1988. “The designation Palestine used within the UN system has no territorial connotation. General Assembly resolution 43/177 of 15 December 1988, which provided that the designation Palestine should be used in place of the designation Palestine Liberation Organization, emphasized that this was without prejudice to the observer status and functions of the Palestine Liberation Organization within the United Nations system.” Right of Reply by Ambassador Arye Mekel on Representation of the Occupied Palestinian Territory, including East Jerusalem, UNGA 17 December 2003, available at http://www.israel-un.org/gen_assembly/me/mekel_credentials_17dec2003.htm.
8. UNGA Resolution 186 (XXXI) of 21 December 1976.
9. UNGA Resolution 5 (XXXII) of 28 October 1977.
10. UN Security Council Resolution 446 (1979) 22 March 1979.
11. UN Security Council Official Records, 3351st Meeting, 18 March 1994, UN Doc. S/PV.335 p.12 (1994).
12. ICJ Opinion, at para. 73.
13. See Yehuda Zvi Blum, “The Juridical Status of Jerusalem,” Jerusalem Papers on Peace Problems (Jerusalem: Leonard Davis Institute for International Relations, 1974), 21.
14. Separate Opinion of Judge Kooijmans, at para. 9, 10.
15. Separate Opinion of Judge Higgins, at para. 16.
16. Separate Opinion of Judge Al-Khasawneh, para. 8, available at http://www.icj-icj.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Al-Khasawneh.htm.
17. Separate Opinion of Judge Nabil Elaraby, Section III, available at http://www.icj-cig.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Elaraby.htm. This quote and all quotes from Written Statements, Oral Pleadings and the Advisory Opinion of the ICJ in the case are taken from Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, General List, No. 131. For a transcript of the Advisory Opinion, see Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2005) 38 (1-2) Is.L.R. 17 (hereinafter: “ICJ Opinion“).

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Dr. Robbie Sabel lectures in international law at Hebrew University and is a former legal adviser to the Israeli Foreign Ministry. This Jerusalem Viewpoints is partially based on the author’s article, “The International Court of Justice Decision on the Separation Barrier and the Green Line,” Israel Law Review, 38(1-2) (2005).