The court evaluated the work already done in construction of the wall and the analysis of the territorial rights of the dispute area with regards to the previous treaties and actions of the parties concerned. The court took note of Israel’s assurances that the disputed wall does not amount to annexation. However, it also said that fears that the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access cannot be disregarded.
The Court observed that the wall also raises doubts about the respect of certain aspects of international humanitarian laws. It observed that establishment of a closed area between the Green Line and the wall itself and the creation of enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory. It also noted that access gates are few in number in certain sectors and opening hours appear to be restricted and unpredictably applied. The Special Reporter on the Right to Food of the United Nations Commission on
Human Rights states that construction of the wall “cuts off Palestinians from their agricultural lands, wells and means of subsistence”. It has further led to increasing difficulties for the population concerned regarding access to health services, educational establishments and primary sources of water. The Court is also not convinced that the action of building a wall was necessary for maintaining the security of Israel. According to the Court the wall infringes on several human rights of the Palestinians whose territory Israel has occupied.
The Court goes on to say that the construction of the wall by Israel breaches the various obligations applicable under international humanitarian law and human rights instruments. There are provisions under the UN Charter that allow a country to protect itself from imminent external threats. However this does not apply to Israel and the construction of the wall as Israel is occupying the territory and the threat exists from within its control area and not externally. Though Israel has a right and moral duty to protect its citizens from acts of aggression it has to take security measures in accordance with the international law as applicable.
The Court asked Israel to stop construction of the wall and destroy forthwith those parts of that structure situated within the Occupied Palestinian Territory, including in and around East Jerusalem. It goes on to state that the construction of the wall has entailed the requisition and destruction of homes, business and agricultural holdings. Hence Israel 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.
The confrontation over the Palestinian territory has a history that dates back to several decades. General Assembly had on 29 November 1947 adopted resolution 181 (II) on the future government of Palestine, which “Recommends to the United Kingdom and to all other Members of the United Nations the adoption and implementation of the Plan of Partition” of the territory, as set forth in the resolution, between two independent States, one Arab, the other Jewish, as well as the creation of a special international regime for the City of Jerusalem.
By resolution 62 (1948) of 16 November 1948, the Security Council decided that “an armistice shall be established in all sectors of Palestine” and called upon the parties directly involved in the conflict to seek agreement to this end. However in 1967 Israeli forces occupied all the territories which had constituted Palestine under British Mandate. From 1967 onwards, Israel took a number of measures in these territories aimed at changing the status of the City of Jerusalem.
Later, following the adoption by Israel on 30 July 1980 of the Basic Law making Jerusalem the “complete and united” capital of Israel, the Security Council, by resolution 478 (1980) of 20 August 1980, stated that the enactment of that Law constituted a violation of international law and that “all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem are null and void”.