Talk given by Andreas van Agt, former Prime Minister of The Netherlands, at the UN International Meeting in Support of Israeli-Palestinian Peace Convened by the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People, Vienna, 27-28 June 2006
This meeting is being held almost at the eve of the second anniversary of the landmark ruling by the International Court of Justice (ICJ) concerning the 'Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory'.
On the 9th of July 2004 the United Nations judicial branch, responding to a request for an Advisory Opinion submitted by the General Assembly, ruled – inter alia - :
that the construction of the wall built by Israel, the occupying power, in the Occupied Palestinian Territory, including in and around East Jerusalem, is contrary to international law;
- That Israel is under an obligation to cease forthwith the works of construction of the wall and to dismantle forthwith the structure in the Occupied Territory already situated;
- That Israel is under an obligation to make reparation for all damage caused by the construction of the wall;
- That all States are under an obligation not to recognise the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction;
- That all States parties to the Fourth Geneva Convention of 12 August 1949 have in addition the obligation to ensure compliance by Israel with international humanitarian law as embodied in that Convention.
Furthermore, the ICJ states, again in the clearest of terms, that Israel’s policy of establishing settlements in the occupied territory is in breach of international law, a flagrant violation of the Fourth Geneva Convention which I already referred to. In this context the Court recalled the Security Council Resolution 465, adopted unanimously on 1 March 1980, which calls upon States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories.
SC Resolution 465 is not the only UN verdict or request ignored or dismissed by UN member states. As of 1967 both the General Assembly and the Security Council have issued numerous resolutions calling on Israel, demanding or urging or requesting it to end the occupation, time and again to no avail. There is, of course, no contesting that the UN’s authority hence efficacy is badly brused when a member state can afford to persistently disregard its messages.
Co-responsible for this disgraceful state of affairs is, evidently, Israel’s protector vested with veto power.
But European countries come in for blame too. They fail to take a firm stand on behalf of international law by not clearly dissociating themselves in this matter from their trans-Atlantic ally. And by shrinking from applying real political pressure on the addressee of the UN resolutions in question. The European Union could, if it had just the spine to act, for instance suspend the implementation of its Association Agreement with Israel which yields huge economic benefits to that state.
Two years ago the ICJ delivered its ruling. What about its implementation ever since? The record is appalling. The wall has not been dismantled but steadily expanded so as to cause even more damage to Palestinians living in the area. Settlements in the West Bank (and in East Jerusalem) have not been removed but hurriedly enlarged. All this on the basis of an occupation continued unabatedly. It is a shocking picture of boundless disrespect for international law.
Some argue – no surprise – that the Court’s ruling, an Advisory Opinion, is non-binding. This assertion cuts no ice. The ICJ concluded that the obligations violated by the construction of the wall are essentially of an erga omnes character and constitute intransgressible principles of customary international law. These are imperative rules of international law from which no derogation is permitted and the existence of which cannot be denied by any state. They apply to Israel and other states independently of the Court’s Opinion. That is why the General Assembly, acknowledging the ICJ’s ruling on the 20th of July 2004, in a 150-6 vote, demanded not that Israel and all UN member states comply with the ICJ ruling but that they comply with “the legal obligations as mentioned in the Advisory Opinion”.
What should be done now? The General Assembly, the UN organ endowed with primary responsibility for the question of Palestine, decided already on 20 July 2004 to reconvene to assess the implementation of the resolution it then adopted. Time has now come for the Assembly to put the matter before the Security Council requesting the latter to compel Israel to abide by its resolution. As the members of the European Union voted in favour of that resolution (contrary to the U.S.), as of logic they may be counted on to follow this up.
There is a striking parallel between this case and that of Namibia. In an Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia, in 1971, the Court found that South Africa was under obligation to put an end to its occupation of Namibia and that UN member states had to refrain from lending support or assistance to South Africa’s presence in Namibia. Conspicuous is the similarity one notes with the present case on Palestine. In Namibia’s case, the Security Council adopted resolutions that not only prohibited UN member states from certain dealings with the South African government, but also called upon those states to discourage their nationals or companies of their nationality from dealing with South Africa. It is up to the Security Council to follow the precedent set by itself and take similar action as Israel continues to construct its illegal wall and keeps enlarging its settlements. Powers acting differently in the present situation would expose themselves to legitimate criticism of operating different standards to like situations.
International Forum for Justice and Peace, that is the name of the NGO I am associated with. All organisations and individuals worried about inalienable rights of the downtrodden Palestinians should more than double their efforts to make justice prevail in the ongoing struggle for a viable Palestinian state. There are protests and petitions galore, conferences and other events inspired by indignation and frustration abound. What is sadly lacking, though, is co-operation and coordination.
Europe in particular carries a heavy responsibility for the wellbeing of the Palestinian people. That responsibility emanates from two sources. The first in chronological order is the colonisation of parts of the Ottoman empire, most notably Palestine. The other is anti-semitism in Europe culminating in the horrors of the holocaust. It is injustice beyond description to have the Palestinians pay the price for our blunders and crimes. We ought to force our governments in Europe to face up to their specific responsibilities. This cannot be achieved but by establishing the primacy of international law in our world. As long as justice through the observance of international law is not reigning supreme, we’ll keep living in the jungle.
Andreas van Agt
Prime Minister of The Netherlands, 1977 – 1981
Prime Counsellor of the International Forum for Justice and Peace