The Israeli wall is to run for 740 kilometres separating the West Bank from Israel and about one third has been completed. Israel calls it a "fence" while to others including Palestinians it is a wall.

It may be recalled that last December the UN General Assembly asked the World Court to give its Advisory Opinion on the legality of the wall that Israel is constructing in the West Bank. It took Israel off the guard because they did not expect that Palestinian Authority would seek an advisory opinion on the legality of the wall from the World Court through the UN General Assembly.

The precise legal issue referred to the World Court by the General Assembly is as follows:

" What are the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territory, including in and around East Jerusalem, as described in the report of the Secretary General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949 and relevant Security Council and General Assembly resolutions?"

The advisory opinion was sought in a resolution by the General Assembly that was opposed by only 8 out of 191 member-states of the UN. Australia, Ethiopia, Israel, Marshall Islands, Micronesia, Nauru, Palau and United States opposed the resolution.

Forty-four governments have reportedly sent written submissions to the Court. The US opposes World Court's intervention because it is a political issue and argues that opinion by the Court will complicate peaceful solution of the conflict. Although the European Union voted in favour of the General Assembly resolution, it argues against this question being referred to the World Court for an opinion. On the other hand, many Islamic countries and the Organisation of Islamic Conference have sent written opinions reportedly challenging the legality of the wall.

Israel has boycotted the Court because it does not accept jurisdiction of the World Court to decide the question of the legality of the barrier, a common phenomenon for a country that is put publicly on the dock. In 1984, the US also walked out of a case brought by the Sandinista government of Nicaragua for interference in its internal affairs by the activities of the US-supported Contra rebels during the Reagan administration.

Status and composition of the World Court
Under Article 92 of the UN Charter, the World Court is the principal juridical organ of the UN. It means that it is an integral part of the UN, unlike its predecessor the Permanent Court of Justice under the League of Nations. The Court has two jurisdictions: (a) it makes rulings in international disputes, although its jurisdiction depends on countries accepting it (which is not that often) and (b) it gives non-binding advisory opinions on legal questions when asked to do by relevant UN organisations.

The Court consists of 15 judges who are elected separately by the General Assembly and the Security Council. Their tenure is for nine years and they may be re-elected. The judges are drawn from all geographical areas with diverse systems of law. Every member of the Court makes a solemn declaration that he/she will exercise his/her powers "impartially and conscientiously" prior to taking up duties (Article 20 of the Statute of the Court). The judges elect a President and a Vice-President of the Court from among themselves.

Of the 15 judges, ordinarily four belong to the members of the Security Council, four from Asia, three from Europe, two each from Africa and Latin America. No Bangladeshi has yet occupied a position in the Court, although in the past Sri Lanka, India and Pakistan had their nationals on the bench. At present there are three judges from Asia. They are from China, Japan and Jordan. Out of 15 judges, it is believed that there are two Muslim and two Jewish judges.

The Court applies laws in terms of Article 38 of the Statute of the World Court. They include: (a) international conventions, establishing rules expressly recognised by the contesting states, (b) international custom, as evidence of a general practice accepted as law, (c) the general principles of law recognized by civilised nations, and (d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

The decisions of the Court on inter-state disputes are final and have no binding force except between the parties in a particular case. Article 94(2) of the UN Charter provides that if a party fails to carry out a judgment, the other party may have recourse to the Security Council which may make recommendations or decide upon measures to give effect to the judgment. This means that the Security Council may impose sanctions on the defaulting party until the judgment is complied with.

Advisory opinions
In terms of Article 96 of the UN Charter, the General Assembly or the Security Council " may request the International Court of Justice to give an advisory opinion on any legal question ."

Although Advisory Opinions of the Court are non-binding in character, they have a moral force in international community and the UN may impose sanctions on defaulting states for non-compliance. In 1971, the World Court in its advisory opinion considered South Africa's presence in Namibia (former South-West Africa) to be illegal and that it should withdraw from the mandated territory immediately. Later the UN imposed sanctions on South Africa for non-compliance of the opinion.

The last Advisory opinion was rendered in 1996 about the legality of the threat or use of nuclear weapons under the UN Charter. The Court then was equally divided on its opinion and with the casting vote of the President ( a judge from Algeria), the Court held that it cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake.

Israel's wall and its legality
The Court may at its discretion decline to render Advisory opinion. Before it goes to the merits of the case, it has to decide first whether the issue presented is a "legal question" or not.

Palestinian case
The Palestinians argue that the wall per se is not illegal if it sticks to the pre-1967 border between Israel and the West Bank (known as Green Line). But a wall encroaching upon the West Bank (from 3 to 22 kilometers inside the West Bank) is illegal. Furthermore they argue that all the land captured by Israel in the 1967 war is "occupied territory" under the 1949 Geneva Conventions on Armed Conflicts and therefore cannot be annexed or appropriated in any manner. They also argue that the withdrawal of a claim to the West Bank by Jordan is not relevant and the Palestinians should be considered as rightful owners of the land.

Accordingly, to build a wall anywhere inside this territory, especially around East Jerusalem which Palestinians want as their capital, constitutes annexation by Israel and also violates day-to-day rights of movement of 400,000 Palestinian population whose lives are adversely affected. The Wall would grab about 900 square kilometers of the West Bank or about 15 percent of the occupied territory.

They cite the UN Security Council Resolution 242 of 1967 that called for "withdrawal of Israeli armed forces from territories occupied in the recent conflict" and accordingly Israel should comply with the implementation of the resolution.

Prime Minister of Palestinian Authority Queria described the wall as "apartheid wall" that would put the Palestinians in cantons. He said that the wall endangered the "two-state solution" and the creation of an independent state as envisaged by the US sponsored "road-map" to peace to end the Israeli-Palestinian conflict.

Israel's case
Israel rejects the claim that the land it captured in 1967 is "occupied territory". It argues that in 1967 Jordan controlled the West Bank and since Jordan gave it up the status of territory is undetermined. Furthermore they argue that the 1967 border was not an international boundary but merely a ceasefire line. The 242 Resolution does not mention withdrawal of "the territories". The omission of word "the" before the phrase "territories" is deliberate and it means that before Israeli withdrawal, there has to be a negotiated international boundary so that Israel can "live in peace within secure and recognised boundaries free from threats or acts of force."

As for the wall itself, it says that it is a fence to ward off suicide bombers from Palestinian territory. It is a self-defence device and can be dismantled in the event of a political settlement. Israel's right-wing Prime Minister reportedly stated that " no better example of cynicism of the world than the decision to hold political discussions in the international court in The Hague, discussions against the fence that will protect human lives."

Conclusion
The case is shaping up to be very contentious and Israel has flown a destroyed bus by a suicide bomber to The Hague to prove its point. Meanwhile only a day earlier before the hearing, Israel dismantled a small portion of the wall to prove its bona fide intention.

A UN report said that the wall would carve off 14 percent of the West Bank, would trap 274,000 Palestinians in tiny enclaves and block another 400,000 from their fields, jobs, schools and hospitals.

The opinion of the Court is expected to take quite some time before it is rendered. Some say that it may take several months before it is publicly announced. All Advisory Opinions are required to be delivered in open court.

If the outcome is in favour of Palestinians, it will at least be a moral victory for them unless the UN Security Council takes appropriate action for non-compliance. However, Israel's mentor US is likely to veto any action against Israel in the Security Council. Therefore the situation on the ground is unlikely to dramatically change unless a political solution is arrived at.

Barrister Harun ur Rashid is a former Bangladesh Ambassador to the UN, Geneva.