Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory
(Request for advisory opinion)
Summary of the Advisory Opinion of
9 July 2004
History of the proceedings (paras. 1‑12)
The Court first recalls that on
10 December 2003 the Secretary‑General of the United Nations
officially communicated to the Court the decision taken by the General Assembly
to submit the question set forth in its resolution ES‑10/14, adopted
on 8 December 2003 at its Tenth Emergency Special Session, for an
advisory opinion. The question is the following:
“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 Court then gives a short
overview of the history of the proceedings.
Questions of jurisdiction (paras. 13‑42)
At the outset of its reasoning
the Court observes that, when seised of a request for an advisory opinion, it
must first consider whether it has jurisdiction to give the opinion requested
and whether, should the answer be in the affirmative, there is any reason why
it should decline to exercise any such jurisdiction.
The Court first addresses the
question whether it possesses jurisdiction to give the advisory opinion. It
notes first that the competence of the Court in this regard is based on
Article 65, paragraph 1, of its Statute, according to which the Court
“may give an advisory opinion on any legal question at the request of whatever
body may be authorized by or in accordance with the Charter of the United
Nations to make such a request”, and secondly that the General Assembly, which
seeks the advisory opinion, is authorized to do so by Article 96,
paragraph 1, of the Charter,
which provides: “The General Assembly or
the Security Council may request the International Court of Justice to give an
advisory opinion on any legal question.” As it has done sometimes in the past,
the Court then turns to the relationship between the question which is the
subject of a request for an advisory opinion and the activities of the
Assembly. It observes in this respect that Article 10 of the Charter has
conferred upon the General Assembly a competence relating to “any questions or
any matters” within the scope of the Charter, and that Article 11,
paragraph 2, has specifically provided it with competence on “questions
relating to the maintenance of international peace and security brought before
it by any Member of the United Nations . . .” and to make
recommendations under certain conditions fixed by those Articles. It notes
that the question of the construction of the wall in the Occupied Palestinian
Territory was brought before the General Assembly by a number of Member States
in the context of the Tenth Emergency Special Session of the Assembly, convened
to deal with what the Assembly, in its resolution ES‑10/2 of
25 April 1997, considered to constitute a threat to international
peace and security.
After recalling the sequence of
events that led to the adoption of resolution ES‑10/14, the Court
turns to the first question of jurisdiction raised in the present proceedings.
Israel has alleged that, given the active engagement of the Security Council
with the situation in the Middle East, including the Palestinian question, the
General Assembly acted ultra vires under the Charter, because its
request for an advisory opinion was not in accordance with Article 12,
paragraph 1, of the Charter, which provides that: “While the Security
Council is exercising in respect of any dispute or situation the functions
assigned to it in the present Charter, the General Assembly shall not make any
recommendation with regard to that dispute or situation unless the Security
Council so requests.” The Court first observes that a request for an advisory
opinion is not a “recommendation” by the General Assembly “with regard to [a]
dispute or situation”, within the meaning of Article 12, but
considers it appropriate to examine the significance of that Article, having
regard to the practice of the United Nations. It notes that, under
Article 24 of the Charter, the Security Council has “primary
responsibility for the maintenance of international peace and security” and
that both the Security Council and the General Assembly initially interpreted
and applied Article 12 to the effect that the Assembly could not make a
recommendation on a question concerning the maintenance of international peace
and security while the matter remained on the Council’s agenda, but that this
interpretation of Article 12 has evolved subsequently. The Court takes
note of an interpretation of that text given by the United Nations Legal
Counsel at the Twenty‑third Session of the Assembly, and of an increasing
tendency over time for the General Assembly and the Security Council to deal in
parallel with the same matter concerning the maintenance of international peace
and security. The Court considers that the accepted practice of the Assembly,
as it has evolved, is consistent with Article 12, paragraph 1; it is
accordingly of the view that the General Assembly, in adopting
resolution ES‑10/14, seeking an advisory opinion from the Court, did
not contravene the provisions of Article 12, paragraph 1, of the Charter. The
Court concludes that by submitting that request the General Assembly did not
exceed its competence.
The Court recalls that it has
however been contended before it that the request did not fulfil the essential
conditions set by resolution 377 A (V), under which the Tenth
Emergency Special Session was convened and has continued to act.
Resolution 377 A (V)
provides that:
“if the Security Council, because of lack of
unanimity of the permanent members, fails to exercise its primary
responsibility for the maintenance of international peace and security in any
case where there appears to be a threat to the peace, breach of the peace, or
act of aggression, the General Assembly shall consider the matter immediately
with a view to making appropriate recommendations to Members for collective
measures . . .”.
The Court proceeds to ascertain whether the
conditions laid down by this resolution were fulfilled as regards the convening
of the Tenth Emergency Special Session of the General Assembly, in particular
at the time when the Assembly decided to request an advisory opinion from the
Court.
In light of the sequence of
events as described by it, the Court observes that, at the time when the Tenth
Emergency Special Session was convened in 1997, the Council had been unable to
take a decision on the case of certain Israeli settlements in the Occupied
Palestinian Territory, due to a negative vote of a permanent member; and that,
as indicated in resolution ES‑10/2, there existed a threat to
international peace and security. The Court further notes that, on
20 October 2003, the Tenth Emergency Special Session of the General
Assembly was reconvened on the same basis as in 1997, after the rejection by
the Security Council, on 14 October 2003, again as a result of the
negative vote of a permanent member, of a draft resolution concerning the
construction by Israel of the wall in the Occupied Palestinian Territory. The
Court considers that the Security Council again failed to act as contemplated
in resolution 377 A (V). It does not appear to the Court that the
situation in this regard changed between 20 October 2003 and
8 December 2003, since the Council neither discussed the construction
of the wall nor adopted any resolution in that connection. Thus, the Court is
of the view that, up to 8 December 2003, the Council had not
reconsidered the negative vote of 14 October 2003. The Court
concludes that, during that period, the Tenth Emergency Special Session was
duly reconvened and could properly be seised of the matter now before the
Court, under resolution 377 A (V).
The Court also emphasizes that,
in the course of this Emergency Special Session, the General Assembly could
adopt any resolution falling within the subject‑matter for which the
Session had been convened, and otherwise within its powers, including a
resolution seeking the Court’s opinion. It is irrelevant in that regard that
no proposal had been made to the Security Council to request such an opinion.
Turning to alleged further
procedural irregularities of the Tenth Emergency Special Session, the Court
does not consider that the “rolling” character of that Session, namely the fact
of it having been convened in April 1997 and reconvened 11 times
since then, has any relevance with regard to the validity of the request by the
General Assembly. In response to the contention by Israel that it was improper to reconvene the Tenth
Emergency Special Session at a time when the regular Session
of the General Assembly was in progress, the Court observes that, while it may
not have been originally contemplated that it would be appropriate for the
General Assembly to hold simultaneous emergency and regular sessions, no rule
of the Organization has been identified which would be thereby violated, so as
to render invalid the resolution adopting the present request for an advisory
opinion. Finally, the Tenth Emergency Special Session
appears to have been convened in accordance with Rule 9 (b) of
the Rules of Procedure of the General Assembly, and the relevant meetings have
been convened in pursuance of the applicable rules.
The Court turns to a further
issue related to jurisdiction namely the contention that the request for an
advisory opinion by the General Assembly does not raise a “legal question”
within the meaning of Article 96, paragraph 1, of the Charter and
Article 65, paragraph 1, of the Statute of the Court.
As regards the alleged lack of
clarity of the terms of the General Assembly’s request and its effect on the
“legal nature” of the question referred to the Court, the Court observes that
this question is directed to the legal consequences arising from a given
factual situation considering the rules and principles of international law,
including the Geneva Convention relative to the Protection of Civilian Persons
in Time of War of 12 August 1949 (hereinafter the “Fourth Geneva
Convention”) and relevant Security Council and General Assembly resolutions.
In the view of the Court, it is indeed a question of a legal character. The
Court further points out that lack of clarity in the drafting of a question
does not deprive the Court of jurisdiction. Rather, such uncertainty will
require clarification in interpretation, and such necessary clarifications of
interpretation have frequently been given by the Court. Therefore, the Court
will, as it has done often in the past, “identify the existing principles and
rules, interpret them and apply them . . ., thus offering a
reply to the question posed based on law” (Legality of the Threat or Use of
Nuclear Weapons, I.C.J. Reports 1996 (I), p. 234,
para. 13). The Court points out that, in the present instance, if the
General Assembly requests the Court to state the “legal consequences” arising
from the construction of the wall, the use of these terms necessarily
encompasses an assessment of whether that construction is or is not in breach
of certain rules and principles of international law.
The Court does not consider that
what is contended to be the abstract nature of the question posed to it raises
an issue of jurisdiction. Even when the matter was raised as an issue of
propriety rather than one of jurisdiction, in the case concerning the Legality
of the Threat or Use of Nuclear Weapons, the Court took the clear position
that to contend that it should not deal with a question couched in abstract
terms is “a mere affirmation devoid of any justification” and that “the Court
may give an advisory opinion on any legal question, abstract or otherwise” (I.C.J.
Reports 1996 (I), p. 236, para. 15).
The Court finds that it
furthermore cannot accept the view, which has also been advanced, that it has
no jurisdiction because of the “political” character of the question posed. As
is clear from its long‑standing jurisprudence on this point, the Court
considers that the fact that a legal question also has political aspects, “does
not suffice to deprive it of its character as a ‘legal question’ and to
‘deprive the Court of a competence expressly conferred on it by its Statute’,
and the Court cannot refuse to admit the legal character of a question which
invites it to discharge an essentially judicial task” (Legality of the
Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I),
p. 234, para. 13).
The Court accordingly concludes
that it has jurisdiction to give the advisory opinion requested by
resolution ES‑10/14 of the General Assembly.
Discretionary power of the Court to
exercise its jurisdiction (paras. 43‑65)
The Court notes that it has been
contended, however, that the Court should decline to exercise its jurisdiction
because of the presence of specific aspects of the General Assembly’s request
that would render the exercise of the Court’s jurisdiction improper and
inconsistent with the Court’s judicial function.
The Court first recalls that
Article 65, paragraph 1, of its Statute, which provides that “The
Court may give an advisory opinion . . .” (emphasis
added), should be interpreted to mean that the Court retains a discretionary
power to decline to give an advisory opinion even if the conditions of
jurisdiction are met. It is mindful however of the fact that its answer to a
request for an advisory opinion “represents its participation in the activities
of the Organization, and, in principle, should not be refused”. From this it
follows that, given its responsibilities as the “principal judicial organ of
the United Nations” (Article 92 of the Charter), the Court should in
principle not decline to give an advisory opinion, and only “compelling
reasons” should lead the Court to do so.
The first argument presented to
the Court in this regard is to the effect that it should not exercise its
jurisdiction in the present case because the request concerns a contentious
matter between Israel and Palestine, in respect of which Israel has not
consented to the exercise of that jurisdiction. According to this view, the
subject‑matter of the question posed by the General Assembly “is an
integral part of the wider Israeli‑Palestinian dispute concerning
questions of terrorism, security, borders, settlements, Jerusalem and other
related matters”. The Court observes in this respect that the lack of consent
to the Court’s contentious jurisdiction by interested States has no bearing on
the Court’s jurisdiction to give an advisory opinion, but recalls its
jurisprudence to the effect that the lack of consent of an interested State might
render the giving of an advisory
opinion incompatible with the Court’s
judicial character, e.g. if to give a reply would have the effect of
circumventing the principle that a State is not obliged to submit its disputes
to judicial settlement without its consent.
As regards the request for an
advisory opinion now before it, the Court acknowledges that Israel and
Palestine have expressed radically divergent views on the legal consequences of
Israel’s construction of the wall, on which the Court has been asked to
pronounce in the context of the opinion it would give. However, as the Court
has itself noted before, “Differences of views . . . on legal
issues have existed in practically every advisory proceeding.” Furthermore,
the Court does not consider that the subject‑matter of the General
Assembly’s request can be regarded as only a bilateral matter between Israel
and Palestine. Given the powers and responsibilities of the United Nations in
questions relating to international peace and security, it is the Court’s view
that the construction of the wall must be deemed to be directly of concern to
the United Nations in general and the General Assembly in particular. The
responsibility of the United Nations in this matter also has its origin in the
Mandate and the Partition Resolution concerning Palestine. This responsibility
has been described by the General Assembly as “a permanent responsibility
towards the question of Palestine until the question is resolved in all its
aspects in a satisfactory manner in accordance with international legitimacy”
(General Assembly resolution 57/107 of 3 December 2002). The
object of the request before the Court is to obtain from the Court an opinion
which the General Assembly deems of assistance to it for the proper exercise of
its functions. The opinion is requested on a question which is of particularly
acute concern to the United Nations, and one which is located in a much broader
frame of reference than a bilateral dispute. In the circumstances, the Court
does not consider that to give an opinion would have the effect of
circumventing the principle of consent to judicial settlement, and the Court
accordingly cannot, in the exercise of its discretion, decline to give an
opinion on that ground.
The Court then turns to another
argument raised in support of the view that it should decline to exercise its
jurisdiction: that an advisory opinion from the Court on the legality of the
wall and the legal consequences of its construction could impede a political,
negotiated solution to the Israeli‑Palestinian conflict. More
particularly, it has been contended that such an opinion could undermine the
scheme of the “Roadmap”, which requires Israel and Palestine to comply with
certain obligations in various phases referred to therein. The Court observes
that it is conscious that the “Roadmap”, which was endorsed by Security Council
resolution 1515 (2003), constitutes a negotiating framework for the
resolution of the Israeli‑Palestinian conflict, but that it is not clear
what influence its opinion might have on those negotiations: participants in
the present proceedings have expressed differing views in this regard. The
Court finds that it cannot regard this factor as a compelling reason to decline
to exercise its jurisdiction.
It was also put to the Court by
certain participants that the question of the construction of the wall was only
one aspect of the wider Israeli‑Palestinian conflict which could not be
properly addressed in the present proceedings. The Court does not however
consider this a reason for it to decline to reply to the question asked: it is
aware, and would take into account, that the question of the wall is part of a
greater whole. At the same time, the question which the General Assembly has
chosen to ask of the Court is confined to the legal consequences of the
construction of the wall, and that the Court would only examine other issues to
the extent that they might be necessary to its consideration of the question
put to it.
The further argument has been
raised that the Court should decline to exercise its jurisdiction because it
does not have at its disposal the requisite facts and evidence to enable it to
reach its conclusions. According to Israel, if the Court decided to give the
requested opinion, it would be forced to speculate about essential facts and
make assumptions about arguments of law. The Court points out that in the
present instance, it has at its disposal the report of the Secretary‑General,
as well as a voluminous dossier submitted by him to the Court, comprising not
only detailed information on the route of the wall but also on its humanitarian
and socio‑economic impact on the Palestinian population. The dossier
includes several reports based on on‑site visits by special rapporteurs and
competent organs of the United Nations. Moreover, numerous other participants
have submitted to the Court written statements which contain information
relevant to a response to the question put by the General Assembly. The Court
notes in particular that Israel’s Written Statement, although limited to issues
of jurisdiction and propriety, contained observations on other matters,
including Israel’s concerns in terms of security, and was accompanied by
corresponding annexes; and that many other documents issued by the Israeli
Government on those matters are in the public domain.
The Court therefore finds that it
has before it sufficient information and evidence to enable it to give the
advisory opinion requested by the General Assembly. Moreover, the circumstance
that others may evaluate and interpret these facts in a subjective or political
manner can be no argument for a court of law to abdicate its judicial task.
There is therefore in the present case no lack of information such as to
constitute a compelling reason for the Court to decline to give the requested
opinion.
Another argument that has been
advanced is that the Court should decline to give the requested opinion on the
legal consequences of the construction of the wall because such opinion would
lack any useful purpose: the General Assembly would not need an opinion of the
Court because it has already declared the construction of the wall to be
illegal and has already determined the legal consequences by demanding that
Israel stop and reverse its construction and further, because the General
Assembly has never made it clear how it intended to use the opinion. The Court
observes that, as is clear from its jurisprudence, advisory opinions have the
purpose of furnishing to the requesting organs the elements of law necessary
for them in their action. It recalls what it stated in its Opinion on the Legality
of the Threat or Use of Nuclear Weapons: “it is not for the Court itself
to purport to decide whether or not an advisory opinion is needed by the
Assembly for the performance of its functions. The General Assembly has the
right to decide for itself on the usefulness of an opinion in the light of its
own needs.” It thus follows that the Court cannot decline to answer the
question posed based on the ground that its opinion would lack any useful
purpose. The Court cannot substitute its assessment of the usefulness of the
opinion requested for that of the organ that seeks such opinion, namely the
General Assembly. Furthermore, and in any event, the Court considers that the
General Assembly has not yet determined all the possible consequences of its
own resolution. The Court’s task would be to determine in a comprehensive
manner the legal consequences of the construction of the wall, while the
General Assembly ¾ and the Security Council ¾ may then draw conclusions
from the Court’s findings.
Lastly, another argument advanced
by Israel with regard to the propriety of its giving an advisory opinion in the
present proceedings is that Palestine, given its responsibility for acts of
violence against Israel and its population which the wall is aimed at
addressing, cannot seek from the Court a remedy for a situation resulting from
its own wrongdoing. Therefore, Israel concludes, good faith and the principle
of “clean hands” provide a compelling reason that should lead the Court to
refuse the General Assembly’s request. The Court does not consider this
argument to be pertinent. It emphasizes, as earlier, that it was the General
Assembly which requested the advisory opinion, and that the opinion is to be
given to the General Assembly, and not to an individual State or entity.
*
In the light of the foregoing,
the Court concludes that it has jurisdiction to give an opinion on the question
put to it by the General Assembly and that there is no compelling reason for it
to use its discretionary power not to give that opinion.
Scope of the question before the Court (paras. 66‑69)
The Court then proceeds to
address the question put to it by General Assembly resolution ES‑10/14
(see above). The Court explains that it has chosen to use the term “wall”
employed by the General Assembly, because the other terms used ¾ “fence” or
“barrier” ¾ are no more accurate if understood in the physical sense. It
further notes that the request of the General Assembly concerns the legal
consequences of the wall being built “in the Occupied Palestinian Territory,
including in and around East Jerusalem”, and considers that it is not called
upon to examine the legal consequences arising from the construction of those
parts of the wall which are on the territory of Israel itself.
Historical background (paras. 70‑78)
In order to indicate the legal
consequences of the construction of the wall in the Occupied Palestinian
Territory, the Court has first to determine whether or not the construction of
that wall breaches international law. To this end, it first makes a brief
historical analysis of the status of the territory concerned since the time
that Palestine, having been part of the Ottoman Empire, was, at the end of the
First World War, the subject of a class “A” mandate entrusted by the League of
Nations to Great Britain. In the course of this analysis, the Court mentions
the hostilities of 1948‑1949, and the armistice demarcation line between
Israeli and Arab forces fixed by a general armistice agreement of
3 April 1949 between Israel and Jordan, referred to as the “Green
Line”. At the close of its analysis, the Court notes that the territories
situated between the Green Line and the former eastern boundary of Palestine
under the Mandate were occupied by Israel in 1967 during the armed conflict
between Israel and Jordan. Under customary international law, the Court
observes, these were therefore occupied territories in which Israel had the
status of occupying Power. Subsequent events in these territories have done
nothing to alter this situation. The Court concludes that all these
territories (including East Jerusalem) remain occupied territories and that
Israel has continued to have the status of occupying Power.
Description of the wall (paras. 79‑85)
The Court goes on to describe, on
the basis of the information available to it in a report by the United Nations
Secretary‑General and the Written Statement presented to the Court by the
Secretary‑General, the works already constructed or in course of
construction in that territory.
Relevant rules and principles of
international law (paras. 86‑113)
It then turns to the
determination of the rules and principles of international law which are
relevant in assessing the legality of the measures taken by Israel. It
observes that such rules and principles can be found in the United Nations
Charter and certain other treaties, in customary international law and in the
relevant resolutions adopted pursuant to the Charter by the General Assembly
and the Security Council. It is aware, however, that doubts have been
expressed by Israel as to the applicability in the Occupied Palestinian
Territory of certain rules of international humanitarian law and human rights
instruments.
United Nations Charter and General Assembly
resolution 2625 (XXV) (paras. 87‑88)
The Court first recalls
Article 2, paragraph 4, of the United Nations Charter, which provides
that:
“All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations,”
and General Assembly resolution 2625 (XXV), entitled
“Declaration on Principles of International Law concerning Friendly Relations
and Co‑operation among States” (hereinafter
“resolution 2625 (XXV)”), in which the Assembly emphasized that “No
territorial acquisition resulting from the threat or use of force shall be
recognized as legal.” As stated in the Court’s Judgment in the case concerning
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), the principles as to the use of force
incorporated in the Charter reflect customary international law (see I.C.J.
Reports 1986, pp. 98‑101, paras. 187‑190); the same
is true, it observes, of its corollary entailing the illegality of territorial
acquisition resulting from the threat or use of force.
As to the principle of self‑determination
of peoples, the Court points out that it has been enshrined in the United
Nations Charter and reaffirmed by the General Assembly in
resolution 2625 (XXV) cited above, pursuant to which “Every State has
the duty to refrain from any forcible action which deprives peoples referred to
[in that resolution] . . . of their right to self‑determination.”
Article 1 common to the International Covenant on Economic, Social and
Cultural Rights and the International Covenant on Civil and Political Rights
reaffirms the right of all peoples to self‑determination, and lays upon
the States parties the obligation to promote the realization of that right and
to respect it, in conformity with the provisions of the United Nations
Charter. The Court recalls its previous case law, which emphasized that
current developments in “international law in regard to non‑self‑governing
territories, as enshrined in the Charter of the United Nations, made the
principle of self‑determination applicable to all [such territories]”,
and that the right of peoples to self‑determination is today a right erga
omnes.
International humanitarian law (paras. 89‑101)
As regards international
humanitarian law, the Court first recalls that Israel is not a party to the Fourth
Hague Convention of 1907, to which the Hague Regulations are annexed. It
considers, however, that the provisions of the Hague Regulations have become
part of customary law, as is in fact recognized by all the participants in the
proceedings before the Court. The Court also observes that, pursuant to
Article 154 of the Fourth Geneva Convention, that Convention is
supplementary to Sections II and III of the Hague Regulations.
Section III of those Regulations, which concerns “Military authority over
the territory of the hostile State”, is particularly pertinent in the present
case.
Secondly, with regard to the
Fourth Geneva Convention, the Court takes note that differing views have been
expressed by the participants in these proceedings. Israel, contrary to the
great majority of the participants, disputes the applicability de jure
of the Convention to the Occupied Palestinian Territory. The Court recalls
that the Fourth Geneva Convention was ratified by Israel on
6 July 1951 and that Israel is a party to that Convention; that
Jordan has also been a party thereto since 29 May 1951; and that
neither of the two States has made any reservation that would be pertinent to
the present proceedings. The Court observes that the Israeli authorities have
indicated on a number of occasions that in fact they generally apply the
humanitarian provisions of the Fourth Geneva Convention within the occupied
territories. However, according to Israel’s position, that Convention is not
applicable de jure within those territories because, under
Article 2, paragraph 2, it applies only in the case of occupation of
territories falling under the sovereignty of a High Contracting Party involved
in an armed conflict. Israel explains that the territories occupied by Israel
subsequent to the 1967 conflict had not previously fallen under Jordanian
sovereignty.
The Court notes that, according
to the first paragraph of Article 2 of the Fourth Geneva Convention, when
two conditions are fulfilled, namely that there exists an armed conflict
(whether or not a state of war has been recognized), and that the conflict has
arisen between two contracting parties, then the Convention applies, in
particular, in any territory occupied in the course of the conflict by one of
the contracting parties. The object of the second paragraph of Article 2,
which refers to “occupation of the territory of a High Contracting Party”, is
not to restrict the scope of application of the Convention, as defined by the
first paragraph, by excluding therefrom territories not falling under the
sovereignty of one of the contracting parties, but simply to making it clear
that, even if occupation effected during the conflict met no armed resistance,
the Convention is still applicable.
This interpretation reflects the
intention of the drafters of the Fourth Geneva Convention to protect civilians
who find themselves, in whatever way, in the hands of the occupying Power,
regardless of the status of the occupied territories, and is confirmed by the
Convention’s travaux pr?paratoires. The States parties to the Fourth
Geneva Convention, at their Conference on 15 July 1999, approved that
interpretation, which has also been adopted by the ICRC, the General Assembly
and the Security Council. The Court finally makes mention of a judgment of the
Supreme Court of Israel dated 30 May 2004, to a similar effect.
In view of the foregoing, the
Court considers that the Fourth Geneva Convention is applicable in the
Palestinian territories which before the 1967 conflict lay to the east of the Green
Line and which, during that conflict, were occupied by Israel, there being no
need for any enquiry into the precise prior status of those territories.
Human rights law (paras. 102‑113)
The participants in the
proceedings before the Court also disagree whether the international human
rights conventions to which Israel is party apply within the Occupied
Palestinian Territory. Annex I to the report of the Secretary‑General
states:
“4. Israel denies that the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights, both of which it has signed,
are applicable to the occupied Palestinian territory. It asserts that
humanitarian law is the protection granted in a conflict situation such as the
one in the West Bank and Gaza Strip, whereas human rights treaties were
intended for the protection of citizens from their own Government in times of
peace.”
On 3 October 1991
Israel ratified both the International Covenant on Economic, Social and
Cultural Rights of 19 December 1966 and the International Covenant on
Civil and Political Rights of the same date, as well as the United Nations
Convention on the Rights of the Child of 20 November 1989.
On the question of the
relationship between international humanitarian law and human rights law, the
Court first recalls its finding, in a previous case, that the protection of the
International Covenant on Civil and Political Rights does not cease in time of
war (I.C.J. Reports 1996 (I), p. 240, para. 25). More
generally, it considers that the protection offered by human rights conventions
does not cease in case of armed conflict, save through the effect of provisions
for derogation of the kind to be found in Article 4 of the International
Covenant on Civil and Political Rights. It notes that there are thus three
possible situations: some rights may be exclusively matters of international
humanitarian law; others may be exclusively matters of human rights law; yet
others may be matters of both these branches of international law. In order to
answer the question put to it, the Court will have to take into consideration
both these branches of international law, namely human rights law and, as lex
specialis, international humanitarian law.
It remains to be determined
whether the two international Covenants and the Convention on the Rights of the
Child are applicable only on the territories of the States parties thereto or
whether they are also applicable outside those territories and, if so, in what circumstances.
After examination of the provision of the two international Covenants, in the
light of the relevant travaux pr?paratoires and of the position of
Israel in communications to the Human Rights Committee and the Committee on
Economic, Social and Cultural Rights, the Court concludes that those
instruments are applicable in respect of acts done by a State in the exercise
of its jurisdiction outside its own territory. In the case of the
International Covenant on Economic, Social and Cultural Rights, Israel is also
under an obligation not to raise any obstacle to the exercise of such rights in
those fields where competence has been transferred to Palestinian authorities.
The Court further concludes that the Convention on the Rights of the Child is also
applicable within the Occupied Palestinian Territory.
Violation of relevant rules (paras. 114‑142)
The Court next proceeds to
ascertain whether the construction of the wall has violated the rules and
principles of international law found relevant to reply to the question posed
by the General Assembly.
Impact on right of Palestinian people to self‑determination
(paras. 115‑122)
It notes in this regard the
contentions of Palestine and other participants that the construction of the
wall is “an attempt to annex the territory contrary to international law” and
“a violation of the legal principle prohibiting the acquisition of territory by
the use of force” and that “the de facto annexation of land interferes with the
territorial sovereignty and consequently with the right of the Palestinians to
self‑determination”. It notes also that Israel, for its part, has argued
that the wall’s sole purpose is to enable it effectively to combat terrorist
attacks launched from the West Bank, and that Israel has repeatedly stated that
the Barrier is a temporary measure.
The Court recalls that both the
General Assembly and the Security Council have referred, with regard to
Palestine, to the customary rule of “the inadmissibility of the acquisition of
territory by war”. As regards the principle of the right of peoples to self‑determination,
the Court observes that the existence of a “Palestinian people” is no longer in
issue, and has been recognized by Israel, along with that people’s “legitimate
rights”. The Court considers that those rights include the right to self‑determination,
as the General Assembly has moreover recognized on a number of occasions.
The Court notes that the route of
the wall as fixed by the Israeli Government includes within the “Closed Area”
(i.e. the part of the West Bank lying between the Green Line and the wall) some
80 per cent of the settlers living in the Occupied Palestinian
Territory, and has been traced in such a way as to include within that area the
great majority of the Israeli settlements in the Occupied Palestinian Territory
(including East Jerusalem). The information provided to the Court shows that,
since 1977, Israel has conducted a policy and developed practices involving the
establishment of settlements in the Occupied Palestinian Territory, contrary to
the terms of Article 49, paragraph 6, of the Fourth Geneva Convention
which provides: “The Occupying Power shall not deport or transfer parts of its
own civilian population into the territory it occupies.” The Security Council
has taken the view that such policy and practices “have no legal validity” and
constitute a “flagrant violation” of the Convention. The Court concludes that
the Israeli settlements in the Occupied Palestinian Territory (including East
Jerusalem) have been established in breach of international law.
Whilst taking note of the
assurance given by Israel that the construction of the wall does not amount to
annexation and that the wall is of a temporary nature, the Court nevertheless
considers that the construction of the wall and its associated r?gime create a “fait
accompli” on the ground that could well become permanent, in which case, and
notwithstanding the formal characterization of the wall by Israel, it would be
tantamount to de facto annexation.
The Court considers moreover that
the route chosen for the wall gives expression in loco to the illegal
measures taken by Israel with regard to Jerusalem and the settlements, as
deplored by the Security Council. There is also a risk of further alterations
to the demographic composition of the Occupied Palestinian Territory resulting
from the construction of the wall inasmuch as it is contributing to the
departure of Palestinian populations from certain areas. That construction,
along with measures taken previously, thus 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.
Relevant international humanitarian law and human rights
instruments (paras. 123‑137)
The construction of the wall also
raises a number of issues in relation to the relevant provisions of international
humanitarian law and of human rights instruments.
The Court first enumerates and
quotes a number of such provisions applicable in the Occupied Palestinian
Territory, including articles of the 1907 Hague Regulations, the Fourth Geneva
Convention, the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights and the United Nations
Convention on the Rights of the Child. In this connection it also refers to
obligations relating to guarantees of access to the Christian, Jewish and
Islamic Holy Places.
From the information submitted to
the Court, particularly the report of the Secretary‑General, it appears
that the construction of the wall has led to the destruction or requisition of
properties under conditions which contravene the requirements of
Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53
of the Fourth Geneva Convention.
That construction, the
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
(with the exception of Israeli citizens and those assimilated thereto). There
have also been serious repercussions for agricultural production, and
increasing difficulties for the population concerned regarding access to health
services, educational establishments and primary sources of water.
In the view of the Court, the
construction of the wall would also deprive a significant number of
Palestinians of the “freedom to choose [their] residence”. In addition, since
a significant number of Palestinians have already been compelled by the
construction of the wall and its associated r?gime to depart from certain
areas, a process that will continue as more of the wall is built, that
construction, coupled with the establishment of the Israeli settlements
mentioned above, is tending to alter the demographic composition of the
Occupied Palestinian Territory.
In sum,
the Court is of the opinion that the construction of the wall and its
associated r?gime impede the liberty of movement of the inhabitants of the
Occupied Palestinian Territory (with the exception of Israeli citizens and
those assimilated thereto) as guaranteed under Article 12,
paragraph 1, of the International Covenant on Civil and Political Rights.
They also impede the exercise by the persons concerned of the right to work, to
health, to education and to an adequate standard of living as proclaimed in the
International Covenant on Economic, Social and Cultural Rights and in the
United Nations Convention on the Rights of the Child. Lastly, the construction
of the wall and its associated r?gime, by contributing to the demographic
changes mentioned, contravene Article 49, paragraph 6, of the Fourth
Geneva Convention and the pertinent Security Council resolutions cited earlier.
The Court then examines certain
provisions of the applicable international humanitarian law enabling account to
be taken in certain circumstances of military exigencies, which may in its view
be invoked in occupied territories even after the general close of the military
operations that led to their occupation; it points out, however, that only
Article 53 of the Fourth Geneva Convention
contains a relevant provision of this kind,
and finds that, on the material before it, the Court is not convinced that the
destructions carried out contrary to the prohibition in that Article were
“rendered absolutely necessary by military operations” so as to fall within the
exception.
Similarly, the Court examines
provisions in some human rights conventions permitting derogation from, or
qualifying, the rights guaranteed by those conventions, but finds, on the basis
of the information available to it, that the conditions laid down by such
provisions are not met in the present instance.
In sum, the Court finds that,
from the material available to it, it is not convinced that the specific course
Israel has chosen for the wall was necessary to attain its security
objectives. The wall, along the route chosen, and its associated r?gime
gravely infringe a number of rights of Palestinians residing in the territory
occupied by Israel, and the infringements resulting from that route cannot be
justified by military exigencies or by the requirements of national security or
public order. The construction of such a wall accordingly constitutes breaches
by Israel of various of its obligations under the applicable international
humanitarian law and human rights instruments.
Self‑defence and state of necessity
(paras. 138‑141)
The Court recalls that
Annex I to the report of the Secretary‑General states, however,
that, according to Israel: “the construction of the Barrier is consistent with
Article 51 of the Charter of the United Nations, its inherent right to
self‑defence and Security Council resolutions 1368 (2001) and
1373 (2001)”.
Article 51 of the Charter,
the Court notes, recognizes the existence of an inherent right of self‑defence
in the case of armed attack by one State against another State. However,
Israel does not claim that the attacks against it are imputable to a foreign
State. The Court also notes that Israel exercises control in the Occupied
Palestinian Territory and that, as Israel itself states, the threat which it
regards as justifying the construction of the wall originates within, and not
outside, that territory. The situation is thus different from that
contemplated by Security Council resolutions 1368 (2001) and
1373 (2001), and therefore Israel could not in any event invoke those
resolutions in support of its claim to be exercising a right of self‑defence.
Consequently, the Court concludes that Article 51 of the Charter has no
relevance in this case.
The Court considers further
whether Israel could rely on a state of necessity which would preclude the
wrongfulness of the construction of the wall. In this regard, citing its
decision in the case concerning the Gabč?kovo‑Nagymaros
Project (Hungary/Slovakia), it observes that the state of necessity is a ground recognized by customary
international law that “can only be invoked under certain strictly defined
conditions which must be cumulatively satisfied” (I.C.J. Reports 1997,
p. 40, para. 51), one of those conditions being that the act at issue
be the only way for the State to guard an essential interest against a grave
and imminent peril. In the light of the material before it, the Court is not
convinced that the construction of the wall along the route chosen was the only
means to safeguard the interests of Israel against the peril which it has
invoked as justification for that construction. While Israel has the right,
and indeed the duty to respond to the numerous and deadly acts of violence
directed against its civilian population, in order to protect the life of its
citizens, the measures taken are bound to remain in conformity with applicable
international law. Israel cannot rely on a right of self‑defence or on a
state of necessity in order to preclude the wrongfulness of the construction of
the wall. The Court accordingly finds that the construction of the wall, and
its associated r?gime, are contrary to international law.
Legal consequences of the violations (paras. 143‑160)
The Court then examines the
consequences of the violations by Israel of its international obligations.
After recalling the contentions in that respect of various participants in the
proceedings, the Court observes that the responsibility of Israel is engaged
under international law. It then proceeds to examine the legal consequences by
distinguishing between, on the one hand, those arising for Israel and, on the
other, those arising for other States and, where appropriate, for the United
Nations.
Legal consequences of those violations for Israel
(paras. 149‑154)
The Court notes that Israel is
first obliged to comply with the international obligations it has breached by
the construction of the wall in the Occupied Palestinian Territory.
Consequently, Israel is bound to comply with 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.
Furthermore, it must ensure freedom of access to the Holy Places that came
under its control following the 1967 War.
The Court observes that Israel
also has an obligation to put an end to the violation of its international
obligations flowing from the construction of the wall in the Occupied
Palestinian Territory. Israel accordingly has the obligation to cease
forthwith the works of construction of the wall being built by it in the
Occupied Palestinian Territory, including in and around East Jerusalem.
In the view of the Court, cessation of Israel’s violations of its international
obligations entails in practice the dismantling forthwith of those parts of
that structure situated within the Occupied Palestinian Territory, including in
and around East Jerusalem. All legislative and regulatory acts adopted with a
view to its construction, and to the establishment of its associated r?gime,
must forthwith be repealed or rendered ineffective, except where of continuing
relevance to Israel’s obligation of reparation.
The Court finds further that
Israel has the obligation to make reparation for the damage caused to all the
natural or legal persons concerned. The Court recalls the established
jurisprudence that “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.” Israel is accordingly under an obligation to return 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. In the event that such restitution should prove to be
materially impossible, Israel has an obligation to compensate the persons in
question for the damage suffered. The Court considers that Israel also 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.
Legal consequences for other States (paras. 154‑159)
The Court points out that the
obligations violated by Israel include certain obligations erga omnes.
As the Court indicated in the Barcelona Traction case, such obligations
are by their very nature “the concern of all States” and, “In view of the
importance of the rights involved, all States can be held to have a legal
interest in their protection.” (Barcelona Traction, Light and Power
Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32,
para. 33.) The obligations erga omnes violated by Israel are the
obligation to respect the right of the Palestinian people to self‑determination,
and certain of its obligations under international humanitarian law. As
regards self‑determination, the Court recalls its findings in the East
Timor case, and General Assembly resolution 2625 (XXV). It
recalls that a great many rules of humanitarian law “constitute intransgressible
principles of international customary law” (I.C.J. Reports 1996 (I),
p. 257, para. 79), and observes that they incorporate obligations
which are essentially of an erga omnes character. It also notes the
obligation of States parties to the Fourth Geneva Convention to “ensure
respect” for its provisions.
Given the character and the
importance of the rights and obligations involved, the
Court is of the view that all States are under an obligation not to recognize
the illegal situation resulting from the construction of the wall in the
Occupied Palestinian Territory, including in and around East Jerusalem. They
are also under an obligation not to render aid or assistance in maintaining the
situation created by such construction. It is also for all States, while
respecting the United Nations Charter and international law, to see to it that
any impediment, resulting from the construction of the wall, to the exercise by
the Palestinian people of its right to self‑determination is brought to
an end. In addition, all the States parties to the Geneva Convention relative
to the Protection of Civilian Persons in Time of War of
12 August 1949 are under an obligation, while respecting the United
Nations Charter and international law, to ensure compliance by Israel with international
humanitarian law as embodied in that Convention.
The United Nations (para. 160)
Finally, the Court is of the view
that the United Nations, and especially the General Assembly and the Security
Council, should consider what further action is required to bring to an end the
illegal situation resulting from the construction of the wall and the
associated r?gime, taking due account of the present Advisory Opinion.
*
The Court considers that its
conclusion that the construction of the wall by Israel in the Occupied
Palestinian Territory is contrary to international law must be placed in a more
general context. Since 1947, the year when General Assembly
resolution 181 (II) was adopted and the Mandate for Palestine was
terminated, there has been a succession of armed conflicts, acts of
indiscriminate violence and repressive measures on the former mandated
territory. The Court would emphasize that both Israel and Palestine are under
an obligation scrupulously to observe the rules of international humanitarian
law, one of the paramount purposes of which is to protect civilian life.
Illegal actions and unilateral decisions have been taken on all sides, whereas,
in the Court’s view, this tragic situation can be brought to an end only through
implementation in good faith of all relevant Security Council resolutions, in
particular resolutions 242 (1967) and 338 (1973). The “Roadmap”
approved by Security Council resolution 1515 (2003) represents the
most recent of efforts to initiate negotiations to this end. The Court
considers that it has a duty to draw the attention of the General Assembly, to
which the present Opinion is addressed, to the need for these efforts to be
encouraged with a view to achieving as soon as possible, on the basis of international
law, a negotiated solution to the outstanding problems and the establishment of
a Palestinian State, existing side by side with Israel and its other
neighbours, with peace and security for all in the region.
*
The full text of the final paragraph
(para. 163) reads as follows:
“For these
reasons,
The
Court,
(1) Unanimously,
Finds that it has jurisdiction
to give the advisory opinion requested;
(2) By fourteen votes to one,
Decides to comply with the
request for an advisory opinion;
in favour: President
Shi; Vice‑President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh,
Elaraby, Owada, Simma, Tomka;
against:
Judge Buergenthal;
(3) Replies in the
following manner to the question put by the General Assembly:
A. By fourteen votes to one,
The
construction of the wall being built by Israel, the occupying Power, in the
Occupied Palestinian Territory, including in and around East Jerusalem, and its
associated r?gime, are contrary to international law;
in favour: President Shi; Vice‑President Ranjeva; Judges
Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans,
Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;
against:
Judge Buergenthal;
B. By fourteen votes to one,
Israel is under an obligation to
terminate its breaches of international law; it is under an obligation to
cease forthwith the works of construction of the wall being built in the
Occupied Palestinian Territory, including in and around East Jerusalem, to
dismantle forthwith the structure therein situated, and to repeal or render
ineffective forthwith all legislative and regulatory acts relating thereto, in
accordance with paragraph 151 of this Opinion;
in favour: President
Shi; Vice‑President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh,
Elaraby, Owada, Simma, Tomka;
against:
Judge Buergenthal;
C. By fourteen votes to one,
Israel is under an obligation to make
reparation for all damage caused by the construction of the wall in the
Occupied Palestinian Territory, including in and around East Jerusalem;
in favour: President
Shi; Vice‑President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh,
Elaraby, Owada, Simma, Tomka;
against:
Judge Buergenthal;
D. By thirteen votes to two,
All States are under an obligation
not to recognize the illegal situation resulting from the construction of the
wall and not to render aid or assistance in maintaining the situation created
by such construction; all States parties to the Fourth Geneva Convention
relative to the Protection of Civilian Persons in Time of War of
12 August 1949 have in addition the obligation, while respecting the
United Nations Charter and international law, to ensure compliance by Israel
with international humanitarian law as embodied in that Convention;
in favour: President
Shi; Vice‑President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra‑Aranguren, Rezek, Al‑Khasawneh,
Elaraby, Owada, Simma, Tomka;
against:
Judges Kooijmans, Buergenthal;
E. By fourteen votes to one,
The United Nations, and especially
the General Assembly and the Security Council, should consider what further
action is required to bring to an end the illegal situation resulting from the
construction of the wall and the associated r?gime, taking due account of the
present Advisory Opinion.
in favour: President
Shi; Vice‑President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans, Rezek, Al‑Khasawneh,
Elaraby, Owada, Simma, Tomka;
against:
Judge Buergenthal.”
___________
Annex
to Summary 2004/2
Separate opinion of Judge Koroma
In his separate opinion Judge
Koroma stated that although he concurred with the Court’s ruling that the
construction of the wall being built by Israel, the occupying Power, in the
Occupied Palestinian Territory, including in and around East Jerusalem, and its
associated r?gime are contrary to international law, he thought the following
points worth stressing.
In his view, the construction of
the wall has involved the annexation of parts of the occupied territory and the
dispossession of some of the Palestinians of their land, contrary to
international law (in particular, the principle of the non‑acquisition of
territory by force), human rights law and international humanitarian law,
according to which the rights of an occupying Power in an occupied territory
and over the inhabitants are of a limited nature; such rights do not amount to
sovereign rights which would entitle the occupier to bring about changes in the
status of that territory such as the construction of the wall. In other words,
it is a violation of the existing law for an occupying Power unilaterally by
its action to bring about changes in the status of a territory under its
military occupation.
On the issue of jurisdiction,
Judge Koroma stated that while it is understandable for a diversity of
legal views to exist on the question submitted to the Court, he is of the
opinion that the objection that the Court lacks jurisdiction to consider the
issues raised in the question is not sustainable when seen in the light of the
United Nations Charter, the Statute of the Court and its jurisprudence; also
not sustainable, in his view, is the objection based on judicial
propriety ¾ a matter which the Court considered extensively in terms of the
fair administration of justice. In the judge’s view, not only is the question
presented to the Court an eminently legal one susceptible of a legal response
but no compelling evidence was adduced to persuade the Court to deny itself its
advisory competence.
Equally worth stressing were the
Court’s finding regarding the right to self‑determination of the
Palestinian people including the establishment of a State of their own as
envisaged in resolution 181 (II) and the finding that the
construction of the wall would be an impediment to the realization of that
right.
He also emphasized the
authoritative character of the findings of the Court, some of which are based
on the principles of jus cogens and are of an erga omnes
character.
Also of importance is the call
upon the parties to the conflict to respect the principles of humanitarian law,
in particular the Fourth Geneva Convention, in the ongoing hostilities.
Finally, the judge stated that,
the Court having made its findings, it was now up to the General Assembly to
utilize those findings in such a way as to bring about a just and peaceful
solution to the Israeli‑Palestinian conflict, a conflict which has not
only lasted for too long but has been the cause of enormous suffering to those
directly involved and has poisoned international relations in general.
Separate opinion of Judge Higgins
Judge Higgins, who voted with the Court on each of the paragraphs in
the dispositif, expounds in her separate opinion on some of the problems
faced by the Court in deciding whether it should exercise its discretion to
decline to respond to the question put to it. In her view, a condition
elaborated by the Court in the Western Sahara Advisory Opinion is not
met ¾ namely, that where two States are in dispute, an opinion should not
be requested by the General Assembly
“in order that it may later, on the basis of the Court’s opinion, exercise its
powers and functions for the peaceful settlement of that dispute or
controversy” (I.C.J. Reports 1975, p. 26, para. 39). Participants in this case made clear
that the intention was precisely to use any opinion to bring pressure to bear.
Judge Higgins further opines that
it is in principle undesirable for a question to be put to the Court, while
precluding it from looking at the context in which the problem has arisen. She
specifies what the Court should have done, both to ensure that the Opinion was
balanced and evenhanded, and to make use of the possibilities afforded by an
advisory opinion to remind both Palestine and Israel of their responsibilities
under international law.
Judge Higgins further explains
that, while she agrees that Articles 46 and 52 of the Hague Regulations
and Article 53 of the Fourth Geneva Convention have been violated by the
building of the wall within the Occupied Territory, she does not fully share
all the reasoning of the Court in arriving at this conclusion. In particular,
she doubts the wall constitutes a “serious impediment” to the exercise of
Palestinian right to self‑determination, seeing the real impediment as
lying elsewhere. While she agrees that Israel may not exclude wrongfulness by
invoking the right of self‑defence, her reasons are different from those
of the Court, whose views on self‑defence as expressed in
paragraph 139 of this Opinion she does not share.
As to the legal consequences of
the Court’s findings, Judge Higgins notes that while she has voted in favour, inter alia,
of subparagraph (3) (D), she does not believe that the obligations
incumbent on United Nations Members stem from or rely on the legal concept of
obligations erga omnes.
Separate opinion of Judge Kooijmans
Judge Kooijmans starts by summarily
explaining why he voted against operative subparagraph (3) (D).
He then sketches the background
and context of the General Assembly’s request. He feels that the Court should
have described more in detail this context; the Opinion would then have
reflected in a more satisfactory way the legitimate interests and
responsibilities of all groups and persons involved.
Judge Kooijmans then makes some
comments on jurisdictional issues and the question of judicial propriety. He
is of the view that the request, which is premised on the illegality of the
construction of the wall, is drafted in a rather infelicitous way; it is,
however, the Court’s judicial responsibility to analyse the request and, if
necessary, to restate its object.
With regard to the merits
Judge Kooijmans dissociates himself from the Court’s finding that the
construction of the wall constitutes a breach of Israel’s obligation to respect
the Palestinian people’s right to self‑determination. The realization of
that right is part of the much wider political process, although he agrees with
the Court that the wall impedes its realization.
Judge Kooijmans further regrets
that the measures taken by Israel have not been put to the proportionality test
but merely to that of military exigencies and requirements of national
security; in international humanitarian law the criteria of military necessity
and proportionality are closely linked.
With regard to Israel’s claim to
have acted in self‑defence Judge Kooijmans observes that the Court has
failed to note that Security Council resolutions 1368 (2001) and
1373 (2001) on which Israel relies do not refer to an armed attack by
another State but that it correctly points out that these resolutions refer to
acts of international terrorism. In the present case the terrorist acts
have their origin in territory which is under Israeli control.
Finally Judge Kooijmans explains
why he supports the Court’s findings on the legal consequences for the United
Nations and for Israel but why he dissociates himself from the findings vis‑?‑vis
other States with the exception of the duty not to render aid or assistance in
maintaining the situation created by the construction of the wall.
With regard to the duty of non‑recognition
and the duty to ensure respect for compliance by Israel with international
humanitarian law Judge Kooijmans is of the view that the Court’s findings
are not well founded in positive international law and that, moreover, these
duties are without real substance.
Separate opinion of Judge Al‑Khasawneh
Judge
Al‑Khasawneh, appending a separate opinion, expressed his agreement with
the Court’s findings and its reasoning but wished to elucidate three points:
Firstly,
that the characterization of Israel’s presence in the West Bank including East
Jerusalem and Gaza as one of military occupation, rests on solid opinio
juris and is supported by many resolutions, some of a binding nature, as
well as the position of governments individually or in groups. The Court,
while taking cognizance of that constant opinio juris, arrived at
similar conclusions independently of those resolutions and other findings. The
Court was wise, Judge Al‑Khasawneh said, in not enquiring into the
precise prior status of the occupied territories before 1967, because a finding
that these territories are occupied and that the international legal r?gime of
occupation applies in them can be arrived at without reference to their prior
status. Moreover, except on the impossible thesis that the territories were terra
nullius would their previous status matter. No one can seriously argue
that those territories were terra nullius for that is a discredited
concept that does not have relevance in the contemporary world. Moreover, the
territories were part of mandatory territory and the right to self‑determination
of their inhabitants was not extinguished and would not be until the
Palestinians achieved that right.
Secondly,
Judge Al‑Khasawneh advanced the question of the Green Line recalling
that before 1967 prominent Israeli jurists sought to prove it was more than a
mere armistice line, at the present it is the point from which Israeli
occupation is measured. Denigrating the importance of that Line works both
ways and opens the door for questioning Israel’s title and its territory
expanse beyond what was envisioned in the partition plan of Palestine in 1947.
Thirdly,
Judge Al‑Khasawneh recalled that referring to negotiations is
possible but they are a means to an end and not an end to themselves. If they
are not going to produce non‑principled solutions they should be grounded
in law. They should be conducted in good faith that should be concretized by
not creating faits accomplis.
Declaration of Judge Buergenthal
In Judge Buergenthal’s view the
Court should have exercised its discretion and declined to render the requested
advisory opinion because it lacked sufficient information and evidence to
render the opinion. The absence in this case of the requisite factual basis
vitiates the Court’s sweeping findings on the merits, which is the reason for
his dissenting votes.
Judge Buergenthal is prepared to
assume that on a thorough analysis of all relevant facts, a finding could well
be made that some or even all segments of the wall being constructed by Israel
in the Occupied Palestinian Territory violate international law. But he
believes that for the Court to reach such conclusion with regard to the wall as
a whole without having before it or seeking to ascertain all relevant facts
bearing directly on issues of Israel’s legitimate right of self-defence,
military necessity and security needs, given the repeated deadly terrorist
attacks in and upon Israel proper coming from the Occupied Palestinian
Territory to which Israel has been and continues to be subjected, cannot be
justified as a matter of law. In this connection, Judge Buergenthal shows that
the right of self‑defence does not apply only to attacks by State actors
and that armed attacks on Israel proper originating from the Occupied
Palestinian Territory must be deemed, in the context of this case, to meet the
requirements of Article 51 of the United Nations Charter.
Judge Buergenthal also concludes
that the Court’s overall findings that the wall violates international
humanitarian law and human rights instruments are not convincing because they
fail to address any facts or evidence specifically rebutting Israel’s claim of
military exigencies or requirements of national security. Judge Buergenthal
recognises, however, that some international humanitarian law provisions the
Court cites admit of no exceptions based on military exigencies, namely,
Article 46 of the Hague Rules and paragraph 6 of Article 49 of
the Fourth Geneva Convention. While Judge Buergenthal believes that the
Court’s analysis of the relevance to this case of Article 46 is not well
founded, he concludes that Article 49, paragraph 6, which provides
that “the Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it occupies”, applies to the Israeli
settlements in the West Bank, and that they violate Article 49,
paragraph 6. Hence, the segments of the wall being built by Israel to
protect the settlements are ipso facto in violation of that provision.
Finally, Judge Buergenthal notes
that it could be argued that the Court lacked many relevant facts bearing on
the legality of Israel’s construction of the wall because Israel failed to
present them, and that the Court was therefore justified in relying almost
exclusively on the United Nations reports submitted to it. This would be true
if, instead of dealing with an advisory opinion request, the Court had before
it a contentious case where each party has the burden of proving its claims.
That is not the rule applicable to advisory opinion proceedings. Israel had no
legal obligation to participate in these proceedings or to adduce evidence
supporting its claim regarding the legality of the wall. Consequently, the
Court may not draw any adverse evidentiary conclusions from Israel’s failure to
supply it or assume, without itself fully inquiring into the matter, that the
information before it is sufficient to support its sweeping legal conclusions.
Separate opinion of Judge Elaraby
Judge Elaraby expressed his
complete and unqualified support for the findings and conclusions of the
Court. He, however, considered it necessary to append a separate opinion in
order to elaborate on some of the historical and legal aspects in the Advisory
Opinion.
He first addressed the nature and
scope of the United Nations responsibility towards Palestine, which has its
genesis in General Assembly resolution 181 (II) of
29 November 1947. Known as the Partition Resolution, it called for
the establishment of two independent States, one Arab and one Jewish, and
affirmed that the period prior to the realization of the objective “shall be a
transitional period”.
Judge Elaraby then addressed the
international legal status of the Occupied Palestinian Territory, and the legal
implications of the Mandate over Palestine and its termination by the General
Assembly. Judge Elaraby also recalled that the Court has, in the South West
Africa and Namibia cases, held that former mandatory territories
were “a sacred trust of civilization” and were “not to be annexed”. He also
referred to Israel’s various undertakings to withdraw and to respect the
territorial integrity of the Occupied Palestinian Territory.
In a third section of his
separate opinion, he provided a brief analysis of the effects of the prolonged
Israeli occupation, and the limitations in the rules of jus in bello
that ensure protection for non‑combatants. He considers that the
breaches by Israel of international humanitarian law should have been
characterized as grave breaches.
Judge Elaraby also commented on
the Court’s finding that “the construction of the wall severely impedes the
exercise of the Palestinian people of their right to self‑determination”.
He is of the view that this important finding should have been reflected in the
dispositif.
Separate opinion of Judge Owada
In his separate opinion
Judge Owada concurs with the conclusions of the Advisory Opinion of the
Court, both on the preliminary issues of jurisdiction and of judicial propriety
in exercising jurisdiction, and on most of the points belonging to the merits.
He however has some reservations about the way the Court has proceeded in
exercising its judicial propriety in the present case.
More specifically, Judge Owada is
of the view that the Court should have approached the issue of judicial
propriety, not simply in terms of whether it should comply with the request for
an advisory opinion, but also in terms of how it should exercise jurisdiction
once it has decided to exercise it, with a view to ensuring fairness in the
administration of justice in the case which involves an underlying bilateral
dispute. In this situation, consideration of fairness in the administration of
justice would also require fair treatment of the positions of the parties
involved in the subject‑matter with regard to the assessment of facts and
of law. Finally, Judge Owada would have wished to see in the Opinion of
the Court a categorical rejection by the Court of the tragic circle of
indiscriminate violence perpetrated by both sides against innocent civilian
populations, which forms an important background to the present case.
___________
