| 137. To sum up, the Court, from the material
available to it, is not convinced that the specific course
Israel has chosen for the wall was necessary to attain its
security objectives. The wall, along the route chosen, and
its associated régime gravely infringe a number of rights
of Palestinians residing in the territory occupied by Israel,
and the infringements resulting from that route cannot be
justified by military exigencies or by the requirements of
national security or public order. The construction of such
a wall accordingly constitutes breaches by Israel of various
of its obligations under the applicable international humanitarian
law and human rights instruments.
149. The Court notes that Israel is first
obliged to comply with the international obligations it has
breached by the construction of the wall in the Occupied Palestinian
Territory (see paragraphs 114 137 above). Consequently, Israel
is bound to comply with its obligation to respect the right
of the Palestinian people to self determination and its obligations
under international humanitarian law and international human
rights law. Furthermore, it must ensure freedom of access
to the Holy Places that came under its control following the
1967 War (see paragraph 129 above).
150. The Court observes that Israel also
has an obligation to put an end to the violation of its
international obligations flowing from the construction
of the wall in the Occupied Palestinian Territory. The obligation
of a State responsible for an internationally wrongful act
to put an end to that act is well established in general
international law, and the Court has on a number of occasions
confirmed the existence of that obligation (Military
and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Merits, Judgment, I.C.J. Reports
1986, p. 149; United States Diplomatic and Consular Staff
in Tehran, Judgment, I.C.J. Reports 1980, p. 44, para. 95;
Haya de la Torre, Judgment, I.C.J. Reports 1951, p. 82).
151. Israel accordingly has the obligation
to cease forthwith the works of construction of the wall
being built by it in the Occupied Palestinian Territory,
including in and around East Jerusalem. Moreover, in view
of the Court's finding (see paragraph 143 above) that Israel's
violations of its international obligations stem from the
construction of the wall and from its associated régime,
cessation of those violations entails the dismantling forthwith
of those parts of that structure situated within the Occupied
Palestinian Territory, including in and around East Jerusalem.
All legislative and regulatory acts adopted with a view
to its construction, and to the establishment of its associated
régime, must forthwith be repealed or rendered ineffective,
except in so far as such acts, by providing for compensation
or other forms of reparation for the Palestinian population,
may continue to be relevant for compliance by Israel with
the obligations referred to in paragraph 153 below.
152. Moreover, given that the construction
of the wall in the Occupied Palestinian Territory has,
inter alia, entailed the requisition and destruction
of homes, businesses and agricultural holdings, the Court
finds further that Israel has the obligation to make reparation
for the damage caused to all the natural or legal persons
concerned. The Court would recall that the essential forms
of reparation in customary law were laid down by the Permanent
Court of International Justice in the following terms:
| "The essential principle contained
in the actual notion of an illegal act a principle which
seems to be established by international practice and
in particular by the decisions of arbitral tribunals
is that reparation must, as far as possible, wipe out
all the consequences of the illegal act and reestablish
the situation which would, in all probability, have
existed if that act had not been committed. Restitution
in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind
would bear; the award, if need be, of damages for loss
sustained which would not be covered by restitution
in kind or payment in place of it such are the principles
which should serve to determine the amount of compensation
due for an act contrary to international law." (Factory
at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J.,
Series A, No. 17, p. 47.) |
153. Israel is accordingly under an obligation
to return the land, orchards, olive groves and other immovable
property seized from any natural or legal person for purposes
of construction of the wall in the Occupied Palestinian
Territory. In the event that such restitution should prove
to be materially impossible, Israel has an obligation to
compensate the persons in question for the damage suffered.
The Court considers that Israel also has an obligation to
compensate, in accordance with the applicable rules of international
law, all natural or legal persons having suffered any form
of material damage as a result of the wall's construction.
154. The Court will now consider the legal
consequences of the internationally wrongful acts flowing
from Israel's construction of the wall as regards other
States.
155. The Court would observe that the
obligations violated by Israel include certain obligations
erga omnes. As the Court indicated in the Barcelona
Traction case, such obligations are by their very nature
"the concern of all States" and, "In view of the importance
of the rights involved, all States can be held to have a
legal interest in their protection." (Barcelona Traction,
Light and Power Company, Limited, Second Phase, Judgment,
I.C.J. Reports 1970, p. 32, para. 33.) The obligations
erga omnes violated by Israel are the obligation to respect
the right of the Palestinian people to self determination,
and certain of its obligations under international humanitarian
law.
156. As regards the first of these, the
Court has already observed (paragraph 88 above) that in
the East Timor case, it described as "irreproachable" the
assertion that "the right of peoples to self determination,
as it evolved from the Charter and from United Nations practice,
has an erga omnes character" (I.C.J. Reports 1995,
p. 102, para. 29). The Court would also recall that under
the terms of General Assembly resolution 2625 (XXV), already
mentioned above (see paragraph 88),
| "Every State has the duty to promote,
through joint and separate action, realization of the
principle of equal rights and self determination of
peoples, in accordance with the provisions of the Charter,
and to render assistance to the United Nations in carrying
out the responsibilities entrusted to it by the Charter
regarding the implementation of the principle . . ." |
157. With regard to international humanitarian
law, the Court recalls that in its Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons,
it stated that "a great many rules of humanitarian law applicable
in armed conflict are so fundamental to the respect of the
human person and 'elementary considerations of humanity'
. . .", that they are "to be observed by all States whether
or not they have ratified the conventions that contain them,
because they constitute intransgressible principles of international
customary law" (I.C.J. Reports 1996 (I), p. 257, para.
79). In the Court's view, these rules incorporate obligations
which are essentially of an erga omnes character.
158. The Court would also emphasize that
Article 1 of the Fourth Geneva Convention, a provision common
to the four Geneva Conventions, provides that "The High
Contracting Parties undertake to respect and to ensure respect
for the present Convention in all circumstances." It follows
from that provision that every State party to that Convention,
whether or not it is a party to a specific conflict, is
under an obligation to ensure that the requirements of the
instruments in question are complied with.
159. Given the character and the importance
of the rights and obligations involved, the Court is of
the view that all States are under an obligation not to
recognize the illegal situation resulting from the construction
of the wall in the Occupied Palestinian Territory, including
in and around East Jerusalem. They are also under an obligation
not to render aid or assistance in maintaining the situation
created by such construction. It is also for all States,
while respecting the United Nations Charter and international
law, to see to it that any impediment, resulting from the
construction of the wall, to the exercise by the Palestinian
people of its right to self determination is brought to
an end. In addition, all the States parties to the Geneva
Convention relative to the Protection of Civilian Persons
in Time of War of 12 August 1949 are under an obligation,
while respecting the United Nations Charter and international
law, to ensure compliance by Israel with international humanitarian
law as embodied in that Convention. |