06/20/2012 11:19 am ET Updated Aug 20, 2012

The Wall Must Come Down

For 45 years now, the Palestinian people have been subjected to occupation by Israel in the Gaza Strip and the West Bank, including East Jerusalem. For the last ten of those years, they have had to cope, in the West Bank and East Jerusalem, with a wall built by Israel that has served to entrench the occupation. The International Court of Justice was more than a little prophetic when it said in 2004 that the wall threatened the self-determination of the Palestinian people. The wall protects Israeli settlements, which have mushroomed in the ensuing years.

The International Court of Justice (ICJ) made that statement in the course of a formal opinion on the legal consequences of the construction of the wall, issued at the request of the UN General Assembly. In no uncertain terms, the Court said that the wall must come down. A threat to self-determination was seen in separating off a sector of the West Bank in territory contiguous with that of Israel. In particular, the path of the wall included some Israeli settlements on the western side. A threat to self-determination was also seen in the destruction of the Palestinian economy and the fabric of Palestinian society, which may in fact be the main purpose of the wall. One segment of West Bank Palestinians became caged in the area between the wall and the Green line. Farmers were separated from their fields and children from their schools. The sick were separated from hospitals.

The Court applied several propositions of law that are important even beyond the issue of the wall itself. The Court used the law of belligerent occupation. The Israeli Government increasingly, but unconvincingly, questions whether the West Bank is under belligerent occupation, which requires that the "civic life" of the population be protected. On this, the Israeli Government is strangely at odds with Israel's own Supreme Court, which agrees with the International Court of Justice that Israel must conform to the requirements of belligerent occupation.

And contrary to the view of the Israeli Government, the ICJ said that human rights obligations that Israel has undertaken by treaty apply to what Israel does in the West Bank. The Israeli Government has tried unsuccessfully to convince human rights monitoring bodies that treaties like the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child apply only in the territory of Israel itself. The ICJ found violations of human rights obligations in the wall construction.

The ICJ's opinion is dismissed by the Israeli Government on the grounds that it is only "advisory," therefore not binding. This is technically true. Israel has taken care not to subject itself to the jurisdiction of the Court in a way that would allow other states to sue it over what it does in the West Bank. The Court's decision could be issued only via another route, a request by the UN General Assembly for an advisory opinion. While the decision does not bind Israel in a formal sense, it reflects the opinion of the world's leading judicial body that the law requires the dismantling of the wall.

The Court was not asked broader questions, like the legality of the occupation itself, or whether Israel has any lawful basis for its military presence in the West Bank. The answers could only have been devastating to the Israeli Government and to its ally, the United States. Since June 5, 1967, the United States has concealed its knowledge that Israel attacked Egypt on that day with no legal cause. In the war that followed, Israel seized the West Bank when Jordan came to Egypt's defense. Israel's control of the West Bank is thus the product of aggression.

The Court did not go into the details of what happened in 1967. But it did say that sovereignty may not be acquired when territory is taken by military force. It quoted the UN Charter provision against aggression.

The sorry aftermath of the Court's issuance of its 2004 opinion is that the international community has not forced Israel to comply. A few segments of the wall have been found illegal by the Israeli Supreme Court, but most of the wall stands. The General Assembly's purpose in seeking the opinion was to guide the United Nations on how to deal with the construction. To date, the United Nations has done little, largely because the United States, as a permanent member of the UN Security Council, obstructs any constructive action.

The Security Council is required under the UN Charter to deal with breaches of the peace. That was the principal plank of the UN Charter when it was drafted in 1945. But with respect to the 1967 war and the resulting occupations, the Security Council continues to sit on its collective hands. Were the international community to fulfill its responsibilities as specified by the International Court of Justice, we would be a step closer to peace.