Leiden Journal of International Law



HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice

International Court of Justice Firmly Walled in the Law of Power in the Israeli–Palestinian Peace Process


PAUL J. I. M. DE WAART  1

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Abstract

The impartial and nearly unanimous advisory opinion by the International Court of Justice in the Wall case put the role of politics and diplomacy in the settlement of the Israeli–Palestinian conflict in its proper place, within the context of the rule of law. The significance of the opinion goes far beyond the illegality of the construction of the wall in the Occupied Palestinian Territories (OPT). The Court wisely and courageously seized the opportunity of its first direct involvement in the conflict to speak in plain legal terms about the tricky political problems that have ruined the Israeli–Palestinian peace process. It ascertained the present responsibility of the United Nations to protect Palestine's statehood. It affirmed the applicability of the prohibition of acquisition of Palestinian territory by Israel and confirmed the illegality of the Israeli settlements in the OPT. Moreover, the existence of the Palestinian people as the rightful claimant to the OPT is no longer open to question. One may only regret that the UN was not able to ask the Court to throw light on the Palestinian question at a much earlier stage.


Key Words: Advisory opinion on legal consequences of the construction of a wall in the Occupied Palestinian Territory; Israeli-Palestinian conflict; League of Nations mandate; law and politics; intertemporal law; occupation.


Footnotes

1 Professor Emeritus of International Law, Vrije Universiteit Amsterdam. Chaired the board of Israeli, Palestinian and European researchers of the joint project Dynamics of Self-determination of the Arab Thought Forum (Jerusalem), the International Center for Peace in the Middle East (Tel Aviv), the Rijksuniversiteit Gent, the Vrije Universiteit Amsterdam, the Radboud Universiteit (Nijmegen) and the International Dialogues Foundation (The Hague). The project included a series of seminars on political aspects, economic relations, security issues, and mutual understanding of obstacles and prospects in the beginning of the 1990s. The project was terminated when the Oslo peace process started in 1993 and Israelis no longer needed an academic umbrella under which to discuss unpunished peace issues with Palestinians.