Summary of the Advisory Opinion of
9 July 2004 International Court of
Justice
Press Release - 9 July 2004
Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory
Advisory Opinion The Court finds that the
construction by Israel of a wall in the Occupied Palestinian
Territory and its associated régime are contrary to international
law; it states the legal consequences arising from that illegality
THE HAGUE, 9 July 2004. The International Court of
Justice (ICJ), principal judicial organ of the United Nations, has
today rendered its Advisory Opinion in the case concerning the Legal
Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (request for advisory opinion).
In its Opinion, the Court finds unanimously that it has jurisdiction
to give the advisory opinion requested by the United Nations General
Assembly and decides by fourteen votes to one to comply with that
request.
The Court responds to the question as follows:
-- 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”;
-- 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”;
-- 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”;
-- 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”;
-- 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.”
Reasoning of the Court
The Advisory Opinion is divided into three parts: jurisdiction and
judicial propriety; legality of the construction by Israel of a wall
in the Occupied Palestinian Territory; legal consequences of the
breaches found.
Jurisdiction of the Court and judicial propriety
The Court states that when it is seised of a request for an advisory
opinion, it must first consider whether it has jurisdiction to give
that opinion. It finds that the General Assembly, which requested
the opinion by resolution ES-10/14 of 8 December 2003, is authorized
to do so by Article 96, paragraph 1, of the Charter.
The Court, as it has sometimes done in the past, then gives certain
indications as to the relationship between the question on which the
advisory opinion is requested and the activities of the General
Assembly. It finds that the General Assembly, in requesting an
advisory opinion from the Court, did not exceed its competence, as
qualified by Article 12, paragraph 1, of the Charter, which provides
that, while the Security Council is exercising its functions in
respect of any dispute or situation, the Assembly must not make any
recommendation with regard thereto unless the Security Council so
requests.
The Court further refers to the fact that the General Assembly
adopted resolution ES-10/14 during its Tenth Emergency Special
Session, convened pursuant to resolution 377A (V), which provides
that if the Security Council fails to exercise its primary
responsibility for the maintenance of international peace and
security, the General Assembly may consider the matter immediately
with a view to making recommendations to Member States. The Court
finds that the conditions laid down by that resolution were met when
the Tenth Emergency Special Session was convened; that was in
particular true when the General Assembly decided to request an
opinion, as the Security Council was at that time unable to adopt a
resolution concerning the construction of the wall as a result of
the negative vote of a permanent member.
The Court then rejects the argument that an opinion could not be
given in the present case on the ground that the question posed in
the request is not a legal one.
Having established its jurisdiction, the Court considers the
propriety of giving the requested opinion. It recalls that the lack
of consent by a State to its contentious jurisdiction has no bearing
on its jurisdiction to give an advisory opinion. It adds that the
giving of an opinion would not have the effect, in the present case,
of circumventing the principle of consent to judicial settlement,
given that the question on which the General Assembly requested an
opinion is located in a much broader frame of reference than that of
the bilateral dispute between Israel and Palestine, and that it is
of direct concern to the United Nations. Nor does the Court accept
the contention that it should decline to give the advisory opinion
requested because its opinion could impede a political, negotiated
solution to the Israeli-Palestinian conflict. It further finds it
has before it sufficient information and evidence to enable it to
give its opinion, and emphasizes that it is for the General Assembly
to assess the usefulness of that opinion. The Court concludes from
the foregoing that there is no compelling reason precluding it from
giving the requested opinion.
Legality of the construction by Israel of a wall in the Occupied
Palestinian Territory
Before addressing the legal consequences of the construction of the
wall (the term which the General Assembly has chosen to use and
which is also used in the Opinion, since the other expressions
sometimes employed are no more accurate if understood in the
physical sense), the Court considers whether or not the construction
of the wall is contrary to international law.
The Court determines the rules and principles of international law
which are relevant to the question posed by the General Assembly.
The Court begins by citing, with reference to Article 2, paragraph
4, of the United Nations Charter and to General Assembly resolution
2625 (XXV), the principles of the prohibition of the threat or use
of force and the illegality of any territorial acquisition by such
means, as reflected in customary international law. It further cites
the principle of self-determination of peoples, as enshrined in the
Charter and reaffirmed by resolution 2625 (XXV). As regards
international humanitarian law, the Court refers to the provisions
of the Hague Regulation of 1907, which have become part of customary
law, as well as the Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War of 1949, applicable in
those Palestinian territories which before the armed conflict of
1967 lay to the east of the 1949 Armistice demarcation line (or
“Green Line”) and were occupied by Israel during that conflict. The
Court further notes that certain human rights instruments
(International Covenant on Civil and Political Rights, International
Covenant on Economic, Social and Cultural Rights and the United
Nations Convention on the Rights of the Child) are applicable in the
Occupied Palestinian Territory.
The Court ascertains whether the construction of the wall has
violated the above-mentioned rules and principles. It first observes
that the route of the wall as fixed by the Israeli Government
includes within the “Closed Area” (between the wall and the “Green
Line”) some 80 percent of the settlers living in the Occupied
Palestinian Territory. Recalling that the Security Council described
Israel’s policy of establishing settlements in that territory as a
“flagrant violation” of the Fourth Geneva Convention, the Court
finds that those settlements have been established in breach of
international law. It further considers certain fears expressed to
it that the route of the wall will prejudge the future frontier
between Israel and Palestine; it 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, . . . [the
construction of the wall] would be tantamount to de facto
annexation”. The Court notes that the route chosen for the wall
gives expression in loco to the illegal measures taken by Israel,
and deplored by the Security Council, with regard to Jerusalem and
the settlements, and that it entails further alterations to the
demographic composition of the Occupied Palestinian Territory. It
finds that the “construction [of the wall], along with measures
taken previously, . . . 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”.
The Court then considers the information furnished to it regarding
the impact of the construction of the wall on the daily life of the
inhabitants of the Occupied Palestinian Territory (destruction or
requisition of private property, restrictions on freedom of
movement, confiscation of agricultural land, cutting-off of access
to primary water sources, etc.). It finds that the construction of
the wall and its associated régime are contrary to the relevant
provisions of the Hague Regulations of 1907 and of the Fourth Geneva
Convention; that they impede the liberty of movement of the
inhabitants of the territory as guaranteed by the International
Covenant on Civil and Political Rights; and that 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 Convention on the Rights of the Child.
Lastly, the Court finds that this construction and its associated
régime, coupled with the establishment of settlements, are tending
to alter the demographic composition of the Occupied Palestinian
Territory and thereby contravene the Fourth Geneva Convention and
the relevant Security Council resolutions.
The Court observes that certain humanitarian law and human rights
instruments include qualifying clauses or provisions for derogation
which may be invoked by States parties, inter alia where military
exigencies or the needs of national security or public order so
require. It states that it is not convinced that the specific course
Israel has chosen for the wall was necessary to attain its security
objectives and, holding that none of such clauses are applicable,
finds that the construction of the wall constitutes “breaches by
Israel of various of its obligations under the applicable
international humanitarian law and human rights instruments”.
In conclusion, the Court considers that 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 found
The Court draws a distinction between the legal consequences of
these violations for Israel and those for other States.
In regard to the former, the Court finds that Israel must respect
the right of the Palestinian people to self-determination and its
obligations under humanitarian law and human rights law. Israel must
also put an end to the violation of its international obligations
flowing from the construction of the wall in the Occupied
Palestinian Territory and must accordingly cease forthwith the works
of construction of the wall, dismantle forthwith those parts of that
structure situated within the Occupied Palestinian Territory and
forthwith repeal or render ineffective all legislative and
regulatory acts adopted with a view to construction of the wall and
establishment of its associated régime, except in so far as such
acts may continue to be relevant for compliance by Israel with its
obligations in regard to reparation. Israel must further make
reparation for all damage suffered by all natural or legal persons
affected by the wall’s construction.
As regards the legal consequences for other States, the Court finds
that 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. The Court further finds that it is 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, in the exercise by the Palestinian
people of its right to self-determination is brought to an end. In
addition, all States parties to the Fourth Geneva Convention are
under an obligation, while respecting the Charter and international
law, to ensure compliance by Israel with international humanitarian
law as embodied in that Convention.
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
its associated régime, taking due account of the present Advisory
Opinion.
The Court concludes by stating that the construction of the wall
must be placed in a more general context. In this regard, the Court
notes that Israel and Palestine are “under an obligation
scrupulously to observe the rules of international humanitarian
law”. In the Court’s view, the tragic situation in the region can be
brought to an end only through implementation in good faith of all
relevant Security Council resolutions. The Court further draws the
attention of the General Assembly to the “need for . . . 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”.
Composition of the Court
The Court was composed as follows: Judge Shi, President; Judge
Ranjeva, Vice-President; Judges Guillaume, Koroma, Vereshchetin,
Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma and Tomka; Registrar Couvreur.
Judges Koroma, Higgins, Kooijmans and Al-Khasawneh append separate
opinions to the Advisory Opinion. Judge Buergenthal appends a
declaration. Judges Elaraby and Owada append separate opinions.
A summary of the Advisory Opinion is published in the
document entitled “Summary No. 2004/2”, to which summaries of the
declaration and separate opinions appended to the Advisory Opinion
are attached. This Press Communiqué, the summary of the Advisory
Opinion and the latter’s full text can also be accessed on the
Court’s website by clicking on “Docket” and “Decisions” (www.icj-cij.org).
Information Department:
Mr. Arthur Witteveen, First Secretary of the Court (tel.: + 31 70
302 23 36)
Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers
(tel.: + 31 70 302 23 37)
E-mail address:
information@icj-cij.org
Summary of the
Advisory Opinion of 9 July 2004
hagalil.com
11-07-2004 |