International Court of Justice
Press Release - 9 July 2004
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 préparatoires.
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 préparatoires 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
régime 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 régime 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 régime 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 régime, 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 régime
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
Gabcíkovo-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 régime, 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 régime, 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 régime, 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
régime, 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 régime, 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 régime 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-à-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 régime 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.
hagalil.com
11-07-2004 |