Practice Relating to Rule 150. Reparation
Section C. Forms of reparation other than compensation
In 1997, the French Government, created by a decree a “Study Mission on the Spoliation of Jews in France” (also known as the “Mattéoli Mission”) with the task of conducting a study of the various forms of spoliation visited upon the Jews of France during the Second World War, and of the scope and effect of post-war restitution efforts.
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, France stated:
63. As the Permanent Court of International Justice stated in a famous passage: “The essential principle contained in the actual notion of an illegal act … 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” [Permanent Court of International Justice, Factory at Chorzów, Judgment No. 13, 13 September 1928, Series A, No. 17, p. 47].
64. Restitution is the prime means of reparation. Under Article 35 of the [ILC] Draft Articles on Responsibility of States for Internationally Wrongful Acts, in this instance codifying a rule grounded in straightforward logic and supported by well-settled jurisprudence, the responsible State is required to make restitution “provided and to the extent that [it] is not materially impossible”. Now, even though it would appear from the Secretary-General’s Report that the wall is a massive structure intended tangibly to mark the Occupied Palestinian Territory, the destruction of that part of it situated on the territory and the restoration of the status quo ante do not appear impossible.
65. First, while restitution often proves impossible where the prejudice arises from the destruction of property, it would always seem possible if, as in the present case, the converse is true and it is a question of demolishing an existing structure. The process can sometimes present significant practical difficulties; they alone however are not sufficient to make restitution materially impossible. Second, and most importantly, Israel has on a number of occasions underscored the temporary nature of the structure it is building, insisting moreover that it be called a “security fence”, not a “separation wall” intended to be permanent.
66. At the same time Israel has clearly expressed its desire to condition any dismantling of the wall, or a change in its route, on progress in the negotiations on the final status of the occupied Palestinian territories. This is incompatible with the very spirit of the reparation process, as defined by the Permanent Court of International Justice in a famous dictum.
67. Finally, in order for the status quo ante
to be restored as completely as possible, it is important that the dismantling of the wall in the Occupied Palestinian Territory be accompanied by the annulment of the legal instruments having permitted its construction and, if necessary, the payment of appropriate compensation.