Archive | March, 2012

Increasingly Illegal – Israel’s Apartheid Wall

6 Mar

by Nasim Ahmed and Tom Charles for JPRS

Israel's separation wall at the Qalandiya checkpoint between Jerusalem and Ramallah in the occupied West Bank

The International Court of Justice (ICJ) is the principal judicial arm of the United Nations. In 2004 it was tasked with giving an opinion on the legal consequences of Israel’s wall in the Occupied Palestinian Territories.

The wall, which directly affects half a million Palestinians, will be 723 Kilometres in length when complete[i]. The route of the wall substantially deviates from the Green Line of 1949 and into the occupied territories captured by Israel in 1967.

The Advisory Opinion of the ICJ:

The ICJ declared the wall being built by Israel in the West Bank to be illegal under international law. Therefore:

  • Israel has to dismantle the wall and
  • Israel has to pay compensation for the damages caused by the wall

The vote passed 14:1 in the court, with the one dissenting voice being the American judge Thomas Burgenthal who called his dissent a“declaration”. He agreed with much in the majority opinion and recognised that the Jewish settlements in the occupied West Bank are illegal under Article 49 of the fourth Geneva Convention.

Disputes Resolved by the ICJ[ii]:

Settlements and borders

The ICJ ruled that under Article 49 of the fourth Geneva Convention, it is illegal for an occupying power to transfer its population to occupied territory. The West Bank (including East Jerusalem) and the Gaza Strip are occupied territories according to international law; therefore all settlements there are illegal. The ICJ’s Advisory Opinion quoted the United Nations Security Council as saying the settlements constitute a “flagrant violation” of the Geneva Convention.

A fundamental pre-emptory norm of international law is that it is inadmissible to acquire territory or change borders by war. The West Bank (including East Jerusalem) and the Gaza Strip were acquired by Israel in the 1967 war. Israel has zero title to them. These areas are referred to by the World Court as “Occupied Palestinian Territories” throughout its Advisory Opinion.



Because Israel acquired East Jerusalem in the 1967 war, it is Occupied Palestinian Territory to which Israel has no claim.


July sees the anniversary of the ICJ advisory opinion on Israel’s Wall. The 2004 opinion seemed to be a victory for the Palestinians and those championing justice, human rights and the rule of international law, but nearly eight years on the advisory opinion has not translated in to changes on the ground. Israel has not budged from its policy of annexation and has adopted legal mechanisms to expel more Palestinians from their land.

Israel’s Wall and expulsions have led many to argue that Israel is becoming an apartheid regime pursuing a policy of ethnically cleansing the indigenous population in order to tackle what it sees as the demographic problem in preserving its contradictory identity as a Jewish and a democratic state.

The Opinion and Israel’s response

In July 2004 the ICJ was tasked by the UN General Assembly to issue an advisory opinion on the “Legal Consequences of Construction of a Wall in the Occupied Palestinian Territory (OPT)”. Amongst its many conclusions were:

  • The construction and operation of the wall within the Occupied Territories violates international humanitarian law.
  • The Wall is part of a continuing attempt by Israel to change the legal status of the OPT (including East Jerusalem).
  • Construction of the wall is a form of collective punishment.
  • The Wall is a disproportionate response to any threat faced by Israel.
  • The wall violates the right of the Palestinian people to self determination[iii]

This was an unprecedented moral and legal victory for the Palestinian cause. However, seven years on, instead of finding a more chastened Israel we find yet more aggression being committed against the Palestinians.

The Wall and Israel’s policies towards the Palestinians reveal a colonial operation. Many Israeli policies since the ICJ ruling are reminiscent of South African Apartheid, and they show no compunction in flouting international law.

There is a danger in using words like “Colonialism” and “Apartheid” that in sensationalising and politicising the words we undermine the argument we seek to make. This is not so in the case of Israel’s Wall. In January 2007 Professor John Dugard, in his capacity as UN special Rapporteur on human rights in the OPT, stated that Israel’s military occupation displays elements of colonialism and apartheid. His report to the Human Rights Council also suggested that an advisory opinion on the legal consequences of Israel’s conduct should be sought from the ICJ to compliment the opinion on the Wall.

Colonialism and Apartheid both constitute serious violations of basic human rights. Both have been consistently condemned by the international community and both, like the crimes of ethnic cleansing, genocide and torture, are amongst the peremptory norms of international law: rules from which no derogation is permitted.

To explore these very serious accusations an international team of scholars was assembled by the Human Sciences Research Council of South Africa. Its findings corroborated Professor Dugard’s position and made many disturbing conclusions, amongst which were that:

  • Israel’s annexation of East Jerusalem is manifestly an act based on colonial intent.
  • Israel’s acquisition of territory in the occupied West Bank illustrates colonial intent.
  • By portioning contiguous blocs of Palestinian areas into cantons, Israel has violated the territorial integrity of the OPT in violation of the Declaration of Colonialism.
  • Israel has introduced a system of apartheid in the OPT

Instead of justice, what we have witnessed is further aggression and a slow but effective implementation of the original Zionist goal to cleanse Palestinian land of its indigenous population. Throughout its history Israel has rarely missed an opportunity to implement its core strategy of population transfer, pursuing this course through its many wars, its creeping colonisation in the form of settlement building: a regime that combines occupation, apartheid and colonisation.

Legal Structure

Israel’s entire legal structure in the occupied territories is designed to serve this end. Since 1967, in order to control the Palestinian population, Israel has enacted more than 1,200 military orders and has altered the administrative and legal situation in the OPT in violation of international humanitarian law.

In securing its aspiration and maintaining Jewish privileges over the land, Israel enacted the Law of Return (1950), the Law of Absentee Property (1950), the Law of the State’s Property (1951), the Law of Citizenship (1952), the Status Law (1952), the Israel Lands Administration Law (1960), the Construction and Building Law (1965), and the “temporary” law (2002) banning marriage between Palestinians in Israel and Palestinians of the OPT. Consistent with this trend it enacted in April 2010 two further military orders: an Order regarding Prevention of Infiltration (Amendment No. 2) and the Order regarding Security Provisions (Amendment No. 112).

A vivid illustration of how the April 2010 military order will impact the Palestinians in East Jerusalem was highlighted in June 2010 when four elected members of the Palestinian Legislative Council (PLC) were arrested for refusing an Israeli order expelling them from their home and place of birth, East Jerusalem. Many Palestinians fear their expulsion could set a precedent for the removal of more of the nearly 270,000 Palestinians living in East Jerusalem, which Israel occupied in 1967, an occupation that has never been accepted by the international community.

Richard Falk, the UN special rapporteur on human rights in the OPT, cited the case of the four PLC members in a statement, saying that it was part of “a larger, extremely worrying pattern of Israeli efforts to drive Palestinians out of East Jerusalem – all of which are illegal under international law”[iv].

When Israel annexed East Jerusalem in 1967, the government did not confer citizenship on the inhabitants, which would have significantly increased the percentage of Arab voters in Israel. Neither did they invent a new status for them. Lacking alternatives, the inhabitants became “permanent residents”, a status devised for foreigners who wish to stay in Israel. The Minister of the Interior has the right to revoke this status and deport such people to their countries of origin.

Logically, this definition of “permanent residents” should not apply to the inhabitants of East Jerusalem. They and their forefathers were born there; they have no other citizenship and no other place of residence. Revoking their status turns them into politically homeless people without protection of any kind.

This forced expulsion and illegal revocation of residency rights is not only happening to parliamentarians and public figures, but it is happening to many ordinary Jerusalemites as well. No one, it seems, is safe from Israel’s insistence on gradually removing Palestinians from the land. In 2008, Israel revoked 466 Jerusalem residency cards, with the number expected to skyrocket in 2011 as a consequence of the April 2010 military order.

What is being played out is Israel’s desire to have total control over Palestinian lives and Palestinian land, leading to the series of acts that would cause utter shock and outrage if carried out here in Britain or in any other Western country.



Israel’s annexation of East Jerusalem and its legal framework in the OPT is manifestly an act of colonial intent. Israel has no sovereignty and no legitimacy in these territories to enforce such policies.

Legally, Israel bears the primary reasonability for remedying the situation it has created. It has a duty to cease its unlawful activity and dismantle its colonial and apartheid institutions.

Thus far the Palestinians have also been failed by the international system which continues to fall short of meeting its responsibility. The widespread outrage against the siege of Gaza and assault on the Freedom Flotilla suggest that calls for effective action are greater than ever. The call for justice is approaching the volume reached during apartheid South Africa and global institutions will need to respond appropriately or risk their own credibility.

The case of the four PLC members is just one demonstration of the mechanism that Israel has refined over the decades in fulfilling its objectives and tackling what it regards as the demographic problem. Changing facts on the grounds has been a constant method pursued in order to prejudice future negotiations. Inside Israel, extremism has played an increasingly mainstream role, illustrated by the rise to power of openly racist Foreign Minister Avigdor Lieberman and the mob assault on Member of the Knesset Haneen Zoabi in 2010.


Next Steps

If states fail to fulfil their responsibilities they too are acting outside the law. If a state aids or assists in the theft of Palestinian land and allows for the slow but deliberate ethnic cleansing of the Palestinians then it is complicit in maintaining a colonial and apartheid system.

States, inter-governmental and non-governmental agencies have a duty to prevent and bring to book all breaches of peremptory norms of international law. States must not recognise the unlawful situation in Palestine and must issue a robust condemnation of Israel’s annexation of Palestinian territory in East Jerusalem and its criminal intent to expel Palestinians from their lands.

Israel’s wall on occupied Palestinian territory is illegal and should be removed. Furthermore, individual states and parliamentarians from around the world must reject anti-democratic Israeli decisions such as the expulsion of elected PLC members from East Jerusalem. The PLC members, all born in East Jerusalem and forced to take protection at the International Red Cross, need the support of the international community. The principles of democracy and human rights require the support of the international community.

Israeli policy must be described in unequivocal terms; a gradual step to remove Palestinians from their homeland through legal pretence. If Israel succeeds now, many more expulsions will likely follow. The international community must act before Israel becomes further emboldened in pursuing this dangerous course of action.