"The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question"
(article 96, Charter of the United Nations)
We believed in the power of the law when our Campaign received news of the United Nations General Assembly Resolution in October 2003. The Resolution demanded that Israel stop construction of the Wall and demolish the existing sections within one month's time. We believed, but conditionally, since Israel's violation of international law and the UN resolutions is continuous and unhindered.
There were 144 votes in favor, 12 abstentions and only four countries voted against the October Resolution: Israel, the United States, Micronesia and the Marshall Islands. Just weeks before, the United States, using its veto power, blocked a similar proposal in the Security Council.
The report of the UN Secretary General presented just one month later in November, showed, once again, Israeli violations of international agreements, in this case through continued construction of the Wall. As a result of Israel's refusal to accept the terms of the General Assembly Resolution, the General Assembly took the next step and requested an Advisory Opinion from the International Court of Justice. This request was approved by more than 90 countries, but saw more abstentions than the resolution from October (74) and a larger number of votes against (8).
We still believed that the United Nations accepts this universal discourse used to justify the use of force, sanctions and even war: that of human rights. In fact, the 90 countries which voted for the Advisory Opinion represent an important portion of the so-called international community, though it was clearly noted that the abstentions represented the totality of the European Union countries.
Prior to these resolutions, we placed our confidence in human rights and put substantial efforts into the legal analysis of the Wall. According to International Humanitarian Law as well as Human Rights Law, the Wall is clearly illegal. Our strategy in Europe and Latin America has been to speak of the illegality of the Wall from the perspective of international law and human rights, trusting that this language is universal.
It was expected that following the affirmative response by the International Court of Justice to examine the legality of the Wall, Israel would unfold a public relations and media campaign that would center around a number of angles: the Wall's illegality, the question of security, international diplomacy, and mass media. Part of this strategy was to claim that the Court does not have jurisdiction to study the legality of the Wall which they call a "political" rather than legal question. The United States, Israel’s unconditional ally, has taken a similar position.
All the contracting parties of the Geneva Convention, including Israel, must ensure the application of International Humanitarian Law, which says clearly that: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." Since the Wall is illegal, all states that have signed the Geneva Convention have the legal responsibility to take part and stop the Wall's construction and its impact on the civilian population.
But to our surprise, and in support of the Israeli voice that demands the Court be denied jurisdiction, the European Union has joined the argument that the debate is political and not a legal one. The fact that it is political is not in question, but the political nature of occupation does not place it outside the law.
We cannot say that war crimes are not legal matters but rather political, since wars are overwhelmingly political measures. Denying war crimes and crimes against humanity that accompany the construction of the Wall is a position that the Government of Israel is expected to take. But if the rest of the so-called international community—including the European Union–takes part in this opinion, and denies the expropriation of land and the serious violations to the rights to freedom of movement, property, health, education and work, then the right to have rights disappears.
The message that is sent by the international community is forceful: "Palestinians, rights do not exist in your case, only politics" where we are reminded of the phrase which states that war is the continuation of policy but by other means. If that cruel message is endorsed by the Court, if the Court declares itself unauthorized to examine the Wall, the message becomes even stronger: "The United Nations is limited to only providing Palestinians with painkillers, and this only when the Israeli government permits".
After the fatal blow to the Geneva Convention in the Afghanistan war and the virtual transformation of the UN into an NGO during the Iraq war, what is at stake here, in addition to the legality of the Wall, is the international legal system itself. If the Israeli message prospers, it is going to be very difficult to speak again in terms of human rights as universal principles recognized by decent societies and which would help bring justice to Palestine.