"Turning to the question of whether the construction of the wall has violated the rules and principles identified by it, the ICJ noted that Israel has argued that the wall's sole purpose is to enable it effectively to combat terrorist attacks launched from the West Bank and that the wall is a temporary measure. The Court recalled that both the General Assembly and the Security Council in their resolutions have referred, with regard to Palestine, to the customary rule of the inadmissibility of the acquisition of territory by war. In the Court's view, it is apparent that the wall's sinuous route has been traced in such a way as to include within the "Closed Area" between the Green Line and the wall the great majority of the Israeli settlements (and about 80% of the Israeli settlers) in the Occupied Palestinian Territory (including East Jerusalem). According to the ICJ, the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law, in particular Article 49(6) of the Fourth Geneva Convention <13> and binding Security Council resolutions. The Court considered that the construction of the wall and its associated regime of measures create a "fait accompli" on the ground that could well become permanent, in which case it would be tantamount to de facto annexation. In the Court's view, the wall's construction, along with measures taken previously, "severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel's obligation to respect that right." (Para. 122.)
The ICJ found that the construction of the wall has led to the destruction or requisition of Palestinian properties under conditions that contravene the requirements of Articles 46 and 52 of the 1907 Hague Regulations and Article 53 of the Fourth Geneva Convention. <14> In its view, the wall's construction, the establishment of the Closed Area, and the creation of enclaves have imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens) and have had serious repercussions for Palestinian agricultural production, access to health services, educational establishments and primary sources of water, and have changed the demographic composition of the territory concerned in violation of applicable provisions of international humanitarian law, <15> human rights treaties, <16> and Security Council resolutions.
<17> "
"VIII. Legal consequences (Paras. 143-160)
A. Legal consequences for Israel
Noting that Israel's violations trigger its responsibility under international law, the ICJ found that Israel: (i) is obliged to comply with the international obligations it has breached, including 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; (ii) must ensure freedom of access to the Holy Places that came under its control following the 1967 war; (iii) has an obligation to put an end to the violation of its international obligations relating to its construction of the wall in the Occupied Palestinian Territory; (iv) immediately must cease the works of construction of the wall being built by it in the Occupied Palestinian Territory, including in and around East Jerusalem, and must dismantle those parts; (v) immediately must repeal or render ineffective all legislative and regulatory acts adopted with a view to the wall's construction, except insofar as those acts provide for Palestinian compensation; (vi) has the obligation to make reparation for the damage caused to all the natural or legal persons concerned, either by returning 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 or, if such restitution is materially impossible, to compensate the persons in question for the damage suffered, and (vii) has an obligation to compensate all natural or legal persons having suffered any form of material damage as a result of the wall's construction.
B. Legal consequences for states other than Israel
As regards the legal consequences for other states, the ICJ noted that the obligations violated by Israel include certain obligations erga omnes, namely, the right of the Palestinian people to self-determination, and certain of Israel's obligations under international humanitarian law, which are to be observed by all states because they constitute intransgressible principles of international customary law. In the Court's view, all states are bound not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. All states also are under an obligation not to render aid or assistance in maintaining the situation created by such construction, and they must see to it that any impediment, resulting from the wall's construction, to the exercise by the Palestinian people of its right to self-determination is brought to an end. Article 1 of the Fourth Geneva Convention dictates that every state party to that Convention, whether or not it is a party to a specific conflict, must ensure that the requirements of the instruments in question are complied with. Consequently, all the states parties to the Fourth Geneva Convention are under an obligation to ensure compliance by Israel with international humanitarian law as embodied in that Convention. <21>
link:
http://www.asil.org/insights/insigh141.htm#_ednref2.
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