New Zealand Yearbook of International Law
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Caroline E. Foster[*]
The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nonetheless to remain in conformity with applicable international law.[1]
This Note discusses the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, delivered on 9 July 2004 by the International Court of Justice in exercise of the power found in article 65(1) of the Court’s Statute.[2] Statements made by Israel following the rendering of the Court’s Advisory Opinion reveal only a partial intention to comply with the law as stated in the Opinion, but it must be recalled that an advisory opinion does not bind individual States who may be in dispute over issues connected with the subject of an opinion. The character of advisory opinions contrasts with the judgments of the International Court in contentious proceedings, which are binding on the parties to a given case.[3] Consistent with the purpose of the Court’s advisory jurisdiction as reflected in Article 96 of the United Nations Charter, the Court’s findings in the Advisory Opinion on the Wall will provide guidance for the United Nations General Assembly in ongoing debate about the status and future of the Occupied Territories and their populations. [4]
The Opinion is also of broader significance, providing clarification on aspects of the Court’s power to render advisory opinions and providing authoritative judicial advice on a cluster of issues central to international law and multilateral security in the post-Iraq era. Readers will recall the controversy surrounding the General Assembly’s submission of a request for an Advisory Opinion on the Wall and the opposition of a number of States, including the United Kingdom, the United States and Australia, to the Court’s exercise of its advisory jurisdiction in this case. The Advisory Opinion delineated more clearly than previously the Court’s role vis-à-vis that of the United Nations Security Council and the United Nations General Assembly. At the same time the Court confirmed that the security-related activities of these two organs may proceed in parallel. In agreeing to render an Advisory Opinion on a question that was closely connected with an ongoing bilateral dispute, the International Court made clear that propriety did not necessarily preclude it from taking such a role. However, the Opinion highlights the potential problems associated with non-cooperative disputants in the context of advisory proceedings.
The Advisory Opinion on the Wall additionally offers the international community the opportunity to reconsider from a new angle the difficulties intrinsic to the international legal rubric presently prevailing in discussion on the legitimacy of responses to terrorism. The Opinion may bring a measure of relief from the intensity of the present focus within international law on the inapposite and problematic provisions in the law on self-defence. The circumstances that gave rise to the request for the Advisory Opinion on the Wall draw attention to the potential alternative applicability of the doctrine of necessity. Further, although the Opinion deals with a situation connected to armed conflict, the Court places at its heart an analysis of the human rights infringements occasioned by the Wall’s construction, alongside a denunciation of Israel’s violation of international humanitarian law. In highlighting violations of the Palestinians’ economic, social and cultural rights the Opinion can be viewed as having brought about scope for a new realisation of the centrality of human rights concerns to human security.
In light of the significance of these developments, this Note takes the time to report and comment upon each of the key points arising in the Court’s consideration of the question put before it, addressing also the perspectives of those Members of the Court who delivered their views individually in Separate Opinions or, in the case of Judge Buergenthal, in a Declaration.
Israel’s barrier, fence, or wall (the Wall) consists of a fence equipped with electronic sensors, a ditch up to 4 metres deep, a two-lane asphalt patrol road, a trace road parallel to the fence (a strip of smooth sand to detect footprints) and coiled barbed wire.[5] The Wall has been planned to extend some 720 kilometres in length, with approximately 975 square kilometres of land falling between the Wall and the Green Line as established under articles V and VI of the Armistice Agreement signed by Israel and Jordan in Rhodes on 3 April 1949. This area has been estimated to be occupied by 17,000 Palestinians in the West Bank, and 220,000 in Jerusalem. Areas in which another 160,000 Palestinians live will become enclaves. The Wall’s construction has been accompanied by the creation of a new administrative regime, requiring possession of a valid identity card or permit to enter the “Closed Area” between the Wall and the Green Line.[6]
Construction of the Wall has been denounced by the United Nations Secretary-General as a deeply counterproductive act at a time when the Israelis and the Palestinians need to be building their confidence in each other. In response to international protest Israel had, at the time the Advisory Opinion was rendered, made only minor modifications in February 2004 to the Wall’s route and timetabling for its construction.[7] Israel said that building the Wall was consistent with its inherent right to self-defence and with article 51 of the UN Charter.[8] The Palestine Liberation Organisation (PLO) argued that Israel’s activity was inconsistent with international humanitarian law because the measures taken are not consistent with the principles of necessity and proportionality, and inconsistent with international human rights law.[9] The PLO pointed to the effects of the Wall on settlers’ access to their places of work, to food and water supplies, and to schools and hospitals.[10] The PLO also maintained that Israel was attempting to annex the territory in question contrary to international law. Israel reasserted that the Wall was simply intended as a security measure, not representing a political or other border, intended to stop the entry into Israel of Palestinian terrorists from the West Bank.[11]
On 8 December 2003 the General Assembly of the United Nations adopted Resolution ES-10/14, requesting the International Court of Justice urgently to render an advisory opinion on Israel’s construction of this wall in the Occupied Palestinian Territory. The General Assembly requested the Court to address the question:
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?
Resolution ES-10/14 was adopted at the Tenth Emergency Special Session of the General Assembly. The Tenth Emergency Special Session was originally convened, under the “Uniting for Peace” procedure found in GA Resolution 377 A (V), in April 1997.[12] Following the United States’ exercise of its veto to block adoption of two draft resolutions on the subject of the Israeli-Palestinian dispute by the Security Council, the majority of UN Members agreed to establish such a session, as requested by the Chairman of the Arab Group, in order that the Assembly might focus on Israel’s construction of settlements in the Occupied Palestinian Territory together with other Israeli actions in Eastern Jerusalem and in the Occupied Territory. The Tenth Emergency Special Session was reconvened eleven times in the period up to December 2003, including in October 2003, when the General Assembly demanded on 27 October 2003 that Israel cease and reverse construction of the Wall.[13] This followed the Security Council’s failure to adopt a draft resolution on 14 October 2003 concerning construction of the Wall, again by reason of the United States’ exercise of the veto. In November 2003 the Security Council endorsed the Performance-based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict,[14] but without discussing the construction of the Wall. In December the Special Session of the General Assembly was reconvened and Resolution ES-10/14 was then adopted.
The Court’s findings in the Advisory Opinion on the Wall were as follows. The Court found unanimously that it had jurisdiction to give the advisory opinion requested. By fourteen votes to one, with Judge Buergenthal voting against the majority, the Court decided to comply with the request for an advisory opinion. On the substance of the question before it, the Court found, by fourteen votes to one, with Judge Buergenthal voting against the majority for reasons discussed later in this Note, that:[15]
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;
That:[16]
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;
That:[17]
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;
That:[18]
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;
And, by thirteen votes to two, with Judge Buergenthal and Judge Kooijmans voting against the majority, that:[19]
All States are under an obligation not to recognise 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.
This Note will address first the issues that arose in relation to whether the Court had jurisdiction to issue an advisory opinion in the circumstances, and whether it was proper for the Court to do so. Subsequently the Note will evaluate the Court’s handling of the substantive issues to which the General Assembly’s request gave rise.
Before proceeding, a word should be said about the special arrangements made by the Court in this case. Taking into account the terms of urgency in which the General Assembly had couched its request, as officially communicated via facsimile to the Registry on 10 December 2003, the Court fixed a short time-limit for the receipt of written statements by the United Nations and Member States.[20] Given Palestine’s special status as an observer in the United Nations and its role as co-sponsor of Resolution ES-10/14, the Court decided that Palestine likewise might submit a written statement, and might also take part in the public hearings scheduled for 23 February 2004.[21] In response to requests received from the League of Arab States and the Organisation of the Islamic Conference the Court then agreed that they might submit written statements and appear before the Court.[22]
It may be helpful at this point to provide a brief overview of the seven issues facing the Court in relation to its jurisdiction and whether to exercise this jurisdiction, as follows. In assessing whether it had jurisdiction to give an opinion in response to the General Assembly’s request, the Court addressed two main issues: whether the General Assembly had the power to request the Opinion; and whether the request concerned a legal question.
In considering whether in the exercise of its discretion the Court should decline to render an opinion, the Court addressed a further five main arguments: that Israel had not consented to the rendering of an opinion; that giving an opinion could impede progress towards a negotiated solution to the conflict-based on the Roadmap; that the Court lacked sufficient evidence on the security threat which the Wall was being build to address; that giving an opinion would lack any useful purpose; and that the Palestinian lack of “clean hands” should preclude delivery of an opinion that might provide the Palestinians with some remedy against Israeli actions.
These seven points will be considered in turn, beginning with the question of the Court’s jurisdiction and the General Assembly’s power to request the Court’s opinion and then addressing the remaining issues. As indicated above, the Court received submissions from a number of United Nations Members reflecting strongly held views on the subject of its jurisdiction, and was required to steer a steady course through competing considerations discussed in those submissions.
The Court recalled its competence under the Court’s Statute to give an advisory opinion to any body authorised by, or in accordance with, the UN Charter to request such an opinion,[23] and noted the General Assembly’s competence to seek an advisory opinion under the Charter.[24] The question then arose of the General Assembly’s competence under the Charter in relation to the maintenance of international peace and security in the light of article 12(1) of the Charter, which provides that: [25]
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.
Given the Security Council’s ongoing involvement in the situation, was the General Assembly’s request ultra vires by virtue of article 12(1)?[26]
During the 1940s and early 1950s article 12 had been subject to an interpretation that appeared to preclude General Assembly recommendations on any matters on the Council agenda. However the Court accepted that subsequently the General Assembly had come to exercise a broader competence permitting its engagement in various matters in parallel with Security Council involvement. Examples of General Assembly involvement in such situations included activity in relation to Cyprus, South Africa, Angola, Southern Rhodesia, Bosnia and Herzegovina and Somalia.[27] Accordingly, the Court accepted that the General Assembly had not exceeded its competence in requesting the Opinion on the Wall. Perhaps significantly, given the attention that was to be dedicated to social issues in the latter parts of its Opinion, the Court observed that often the Security Council had focused on aspects of a situation relating to international peace and security while the General Assembly had considered their humanitarian, social and economic aspects.[28] Yet one of the effects of the Court’s Opinion as a whole is to help collapse any bright-line distinction between the two spheres of activity, as discussed below.
Also going to the question of the General Assembly’s power to request an opinion from the Court on the construction of the Wall were claims that the conditions for the exercise of the General Assembly’s “Uniting for Peace” procedure under Resolution 377 A (V) had not been met in the present instance. Resolution 377 A (V), adopted in 1950, governs the General Assembly’s exercise of a function relating to international peace and security in the following terms:
[I]f 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…
Resolution 377 A (V) has proved controversial in the past, particularly so far as concerns the validity of the resolution’s provision for the General Assembly to call for collective measures involving the use of force.[29] However in this case only the power of the General Assembly to request an advisory opinion of the International Court of Justice was at issue. In accordance with the terms of the resolution, the Court set out to ascertain whether the Security Council had failed to exercise its responsibility, and whether the situation was such that there appeared to be a threat to the peace, breach of the peace or act of aggression.[30] Like the Court’s enquiry in respect of article 12 of the Charter, this enquiry also required the Court to address the delineation of the respective roles of the Security Council and General Assembly. It had been argued that by endorsing the “Roadmap” in November 2003 the Security Council had continued to exercise its primary responsibility in relation to the Israeli-Palestinian conflict, and that therefore it was not open to the General Assembly to take action. The Court rejected this argument and took the view that, in failing to discuss the subject of the construction of the Wall after 14 October 2003, the Security Council had ‘failed to act, as contemplated in resolution 337 A (V)’.[31]
The Court also rejected as irrelevant the argument that the General Assembly was not empowered to exercise its responsibility under Resolution 337 A (V) because the Security Council had not itself considered requesting an advisory opinion from the Court, and thus could not be considered to have failed to act. When the General Assembly met in Emergency Special Session it was open to the Assembly to adopt any resolution otherwise within its power in relation to the subject of the session.[32] The Court then readily found that the Tenth Emergency Special Session of the General Assembly was properly convened in 1997, and properly reconvened in October 2003. The “rolling character” of the Special Session did not pose any difficulty with regard to the validity of the General Assembly’s request for an opinion.[33] There was no rule precluding the General Assembly from meeting, as it had in late 2003, simultaneously in its regular session and in an emergency session, even if this had not originally been contemplated.[34] The Court referred lastly to the presumption of validity applying to resolutions of the United Nations.[35]
Judge Kooijmans in his Separate Opinion suggested that, in considering the issues arising respectively under article 12(1) of the Charter and Resolution 337 A (V) only sequentially, the Court left unaddressed a number of other points that might further be made concerning the relationship between the functions of the General Assembly and the Security Council. The most essential point made by Judge Kooijmans related to the interpretation of the word “while” in article 12(1). By virtue of practice under Resolution 337 A (V) an interpretation of article 12(1) had evolved such that, where a permanent Member’s veto prevented the Security Council from taking a decision with respect to a certain situation, the Council could be considered no longer to be exercising its functions within the meaning of article 12(1). On the other hand, if the Security Council had still been considering the subject of the Wall’s construction without yet having taken a decision, then Judge Kooijmans doubted that the General Assembly would have had the power to adopt even Resolution ES-10/13, demanding that Israel cease and reverse construction of the Wall.[36]
Perhaps of most interest among the different aspects of the Court’s approach to Resolution 337 A (V) canvassed in this Note is the Court’s tacit acceptance of certain points that were implicit in the General Assembly’s request to the Court. According to the General Assembly, the Security Council’s focus on continued attempts to bring about a negotiated solution to the conflict under the “Roadmap” involved a failure on its part to exercise its primary responsibility for the maintenance of international peace and security so far as construction of the Wall was concerned. The Court did not query this point. In this respect especially the Court’s Opinion can be read as endorsing a broad role for the General Assembly in relation to international peace and security, permitting the Assembly to take steps it believes will complement those of the Security Council. The Court did emphasise that the Security Council’s competence under article 24 of the Charter was a primary but not necessarily an exclusive competence and that, subject only to article 12, article 14 of the Charter conferred a power on the General Assembly to recommend measures for the peaceful adjustment of various situations.[37]
Looking to the future, the guidance to be taken from the Advisory Opinion on the Wall is that there may arise circumstances in which the Security Council is seized with and is taking action in relation to a particular subject but, through lack of unanimity, remains unable to address a particular dispute or situation arising in connection with that subject and creating or constituting a threat to the peace, breach of the peace or act of aggression. Here the General Assembly may take action, including making a request for an advisory opinion from the International Court if that should seem necessary.
The Court then turned to the second main issue arising with respect to its jurisdiction, and established the basis on which the subject of the General Assembly’s request could be considered a legal question. The Court rejected arguments that the request lacked specificity, clarity and precision, and was too abstract or political. It was considered that the question posed by the General Assembly was ‘scarcely susceptible of a reply otherwise than on the basis of law’[38] and it was noted that the Court’s practice was to rectify through interpretation any uncertainties or inaccuracies in such requests.[39] The Court reiterated its readiness to render advisory opinions even on abstract questions, though not considering the request at hand to be of that nature.[40] The political aspects of a legal question would not deprive it of its legal character.[41] Accordingly, the Court made a robust finding that it had jurisdiction to render an Advisory Opinion on the Wall in response to the General Assembly’s request.
Having determined that it had jurisdiction to deal with the General Assembly’s request, the Court then decided that indeed it would do so. The Court dismissed each of the five main arguments raised by United Nations Members who considered it would be improper and inconsistent with the judicial function for the Court to render an Advisory Opinion. The Court relied on the significance of its judicial role, setting this role in the context of the work of the United Nations. Noting its responsibilities as the principal judicial organ of the United Nations,[42] the Court reiterated that responding to requests for Advisory Opinions: [43]
[R]epresents its participation in the activities of the Organisation, and, in principle, should not be refused.
Only where there were “compelling reasons” would refusal be appropriate.[44] The ensuing discussion raised a range of points going to clarification of the international judicial role, and for this reason is of some interest in the context of broader debate about the appropriate delineation of the respective roles of judicial and political institutions at the international level. When should a situation be handled by the Security Council and when should a situation be brought before the International Court of Justice? The Court’s contribution to discussion of these issues in the Advisory Opinion of the Wall complements its contribution to elucidating the relationship between the Security Council and the General Assembly, as discussed above.[45]
From among the five arguments put forward in support of the view that the Court should in this case withhold an opinion, the first argument addressed by the Court was the question whether lack of consent on the part of Israel to the exercise of the Court’s advisory jurisdiction might constitute a circumstance meriting such a refusal. Israel argued that the question before the Court was an integral part of the broader Israeli-Palestinian dispute, to the judicial settlement of which Israel had never consented, and that therefore the Court had no jurisdiction to render an opinion.[46] Although the Court was prepared to consider whether lack of Israeli consent might constitute a compelling reason for deciding to give an opinion, the Court rejected the notion that lack of consent could prejudice the Court’s jurisdiction in advisory proceedings. In this respect there was a significant distinction to be made between contentious and advisory proceedings. In advisory proceedings the Court’s opinion was not binding. Their purpose was not to bring about the settlement of a dispute directly, but rather to provide enlightenment for the requesting organ in its decisions about the course it should take in the exercise of its own mandate.[47] Building on these comments on the purpose of its advisory jurisdiction, the Court reasoned that it could not decline to give an opinion on the ground that rendering an opinion would involve circumvention of the principle of consent to judicial settlement. The Court considered that the construction of the Wall had to be deemed to be directly of concern to the United Nations, given that Organisation’s general powers and responsibilities in the field of international peace and security, and its particular responsibility for Palestine under the Mandate and Partition Resolution concerning Palestine of 1947. The subject of the General Assembly’s request was of acute concern to the United Nations and could not be regarded as connecting solely to a bilateral dispute between the Israelis and the Palestinians.[48]
Judges Higgins, Kooijmans and Owada addressed in their Separate Opinions the question whether the Israeli-Palestinian dispute might give rise to compelling reasons for the Court to decline to exercise its jurisdiction in this case, but their concerns were not sufficient to persuade the Court not to exercise its jurisdiction. Judge Higgins was clear that the case rested in terrain familiar to the International Court from its handling of contentious cases: terrain where there was a dispute between parties.[49] Israel was in dispute with the Palestinian Authority, and this bore upon aspects of a dispute between two international actors, taking into account the special status of Palestine in international law.[50] In these circumstances the Western Sahara Advisory Opinion might be looked to for guidance.[51] In the Western Sahara case Spain objected that the Court should not give an advisory opinion because the questions to be addressed were the subject of a dispute between Spain and Morocco on how to carry out the decolonisation of Spanish Sahara. The Court was not persuaded by Spain’s objections. The Court was satisfied that the purpose of the General Assembly’s request was to obtain an opinion on the status of the Spanish Sahara that would be of assistance in the exercise of its functions relating to the decolonisation of the Western Sahara, rather than to bring a dispute or controversy before the Court in order to secure an opinion that would provide a basis on which the General Assembly might then work for its peaceful settlement.[52] Judge Higgins considered that the opposite was true in relation to the General Assembly’s request for an advisory opinion on the Israeli Wall: ‘Many participants in the oral phase of this case frankly emphasised this objective.’[53]
Like Judge Higgins, Judge Kooijmans was concerned about the purpose for which the General Assembly had sought an opinion. The Judge observed that the Assembly’s request of the Court was oddly worded, and, in seeking an opinion only on the legal consequences of the Wall’s construction, apparently prejudged the Court’s views on the legality or illegality of this act. He considered that the terms of the General Assembly’s request tended to reverse the ‘natural distribution of roles as between the principal judicial organ and the political organ of the United Nations’, because it was the object of the request to obtain a reply from the Court that would identify an obligation for States to bring pressure to bear on Israel.[54] The Court had dealt with this problem by taking the view that reference to the “legal consequences” of building the wall “necessarily” required that in responding to the General Assembly’s request, the Court should assess whether or not the Wall’s construction might be in breach of certain rules and principles of international law.[55] However Judge Kooijmans considered there was a need to articulate a stronger rationale for the Court’s assessment of the legality of the Wall’s construction. The Court’s own judicial function precluded it from simply accepting without enquiry any legal conclusion embedded in the General Assembly’s request.[56] Judge Kooijmans also persisted in objecting that it was insufficient to assert, as the Court had done, that deference was due to the General Assembly’s own assessment that it would find the Court’s opinion useful in the performance of its functions.[57]
The Separate Opinion of Judge Owada in particular explicitly provided some guidance for the Court’s future exercise of its advisory jurisdiction. Joining the majority, Judge Owada did not consider the existence of a bilateral dispute was a bar to the exercise of the Court’s advisory jurisdiction in relation to any given matter.[58] Indeed, he observed that the legislative history of the Covenant of the League of Nations recorded as one of the purposes of the advisory function of the Permanent Court the provision of aid to the League in the peaceful settlement of a concrete dispute before the Council.[59] Judge Owada reasoned that the “critical test for judicial propriety” was not whether a request related to an existing, concrete legal controversy or dispute, but whether ‘to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent.’ [60]
Judge Owada referred to the Eastern Carelia case,[61] in which the Permanent Court of International Justice declined to respond to a request by the Council of the League of Nations for an opinion relating to a bilateral dispute between Finland and Russia. The Court’s decision not to give an opinion in that case took into account that Russia was not a Member of the League of Nations and could not be considered to have consented to the application of the procedures provided in the Covenant for obtaining an advisory opinion. Although Judge Owada did not consider that the existence of a bilateral dispute would per se render improper the giving of an Advisory Opinion by the Court, he did believe that the reality of the situation had to be taken into account by the Court in the way in which it handled the request before it.[62] Underlining the difficulty faced by the Court, Judge Owada referred to the same passage from the Western Sahara Advisory Opinion as had Judge Higgins,[63] and, like Judge Higgins and Judge Kooijmans, noted that the General Assembly’s object in the Advisory Opinion on the Wall had been to bring before the Court a matter involving a legal dispute and controversy.[64] Judge Owada considered that the key to proper handling of a request in such circumstances was for the Court to: [65]
focus its task on offering its objective findings of law to the extent necessary and useful to the requesting organ, the General Assembly, in carrying out its functions relating to this question, rather than adjudicating on the subject-matter of the dispute between the parties concerned.
In this way Judge Owada appeared to consider that the Court would avoid adjudicating the exact subject matter to be adjudicated of the bilateral dispute in question, and thus avoid circumventing the principle requiring a State’s consent to the judicial settlement of its international disputes. If so, it has to be observed that it is unlikely that this will always be possible. That may depend in part on the terms of future requests for advisory opinions. The emphasis on objectivity and impartiality urged by Judge Owada can however be adopted, and should help alleviate the difficulties associated with giving an advisory opinion on a matter involving a bilateral dispute. Judge Owada considered strongly that the Court’s judicial character required it to maintain fairness in the administration of justice when executing its advisory duties.[66] In this respect he discussed whether Israel would have been justified in seeking the appointment of an ad hoc Judge in this case[67] and commented critically on the Court’s response to the lack of evidence before it on certain aspects of the subject matter.[68] His concern underlines the importance of the objections raised by Judge Buergenthal in respect of absence of potentially significant evidence in the context of advisory proceedings, discussed below.
The discomfort caused by submission of a request for an advisory opinion clearly relating to a bilateral dispute for the express purpose of obtaining an authoritative legal opinion on a matter arising between the disputants does indeed seem to have been alleviated, for the majority of the Court, through a focus on facilitating the work of the General Assembly pursuant to its responsibilities in respect of international peace and security and in respect of Palestine. The Court was prepared to live with the fact that the effect of its opinion was both to address these issues and also to make an authoritative statement on a series of legal issues arising in the context of a heated bilateral dispute. Thus the Advisory Opinion on the Wall stands for, inter alia, the proposition that the International Court of Justice may have and may exercise jurisdiction to deliver authoritative opinions on bilateral disputes without the consent of either disputing party to the judicial settlement of that dispute, where requested to do so in accordance with the Charter of the United Nations. It is to be remembered that, as a UN Member, Israel had accepted the provisions in the UN Charter and the Statute of the International Court of Justice relating to advisory opinions.[69] The scope that the Court’s agreement to render an advisory opinion on the Wall may generate for increasing and centralised international institutional oversight of Members’ compliance with international law remains to be seen in practice.
The Court was not prepared to accept arguments that it ought to refrain from responding to the General Assembly’s request for an opinion because an opinion could impede a political, negotiated solution to the Israeli-Palestinian conflict. This argument was made both in general terms and in relation directly to the series of obligations set out for the parties in the “Roadmap”. While the Court noted that it considered the Roadmap to constitute a negotiating framework for the resolution of the conflict, the potential influence on these negotiations of an advisory opinion on the Wall was not clear. The Court had heard differing views on the question. The Court declined to regard the potential for such influence as a compelling reason for declining to exercise its jurisdiction.[70] Though later cases may prove more testing in regard to such issues, it can be observed that the approach taken here is consistent with commitment to the rule of law internationally.
The Court rejected arguments that it should not give an advisory opinion in the absence of further information about the circumstances relating to the Wall’s construction. This argument mainly concerned the Court’s lack of access to details about the nature of the security threat faced by Israel, and also on the impact of the Wall’s construction for the Palestinians. The argument was that Israel alone possessed much of the information that the Court might have found helpful, but had declined to make submissions or adduce evidence concerning the merits of the issues before the Court. At the same time Israel argued the Court was unequipped to proceed and, rather than indulge in speculation and assumption on matters of fact and law, should desist from rendering an opinion.[71] These arguments were assessed using tests based on ensuring the integrity of the judicial function. The Court cited the Western Sahara Advisory Opinion to the effect that the decisive questions should be: [7]
whether the Court has before it sufficient information and evidence to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character.
The Court found that it had sufficient material before it to give an advisory opinion, referring to: the Secretary-General’s report on the construction of the Wall,[72] a voluminous and detailed dossier prepared by the Secretary-General which included reports from site visits by UN agents and organs, supplementary written information provided by the Secretary-General to update his report, information from the written statements of participants in the proceedings including observations on security matters contained in Israel’s Written Statement, and information from the public domain again including documents on security questions issued by the Israeli Government.[73] That said, in particular in that part of its Opinion dealing with the breach of the international human rights covenants, the Court qualified certain of its findings by stating that they had been reached ‘on the basis of the information available to it’.[74] The Court held 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.’[75]
The problems associated with limitations on the evidence before the Court were addressed most fully by Judge Owada in his Separate Opinion, and by Judge Buergenthal in his Declaration. Judge Owada’s approach was anchored in the particular significance he attached to ensuring fairness in the Court’s administration of justice in the context of formulating an advisory opinion on a matter which was the subject of a bilateral dispute, as discussed above.[76] Judge Owada considered that the Court should have made an in-depth effort of its own motion to ascertain, on the basis of fact and law, the validity of arguments as to whether or not Israel’s construction of the Wall had breached its obligations under the Hague Regulations, the Geneva Conventions, and other bodies of law; and whether or not there might be circumstances precluding the wrongfulness of such breach.[77] The Judge rehearsed basic principles of judicial responsibility in relation to matters of proof in contentious proceedings. Proof or ascertainment of the law applying to a dispute could not be required of litigants, and was regarded as lying within the judicial knowledge of the Court.[78] When it came to the facts of a case, it was incumbent on the Court to satisfy itself that it had all the available facts in its possession. This was particularly so where one of the parties to the proceedings before the Court decided not to appear.[79] How did this duty translate in the context of advisory proceedings? Judge Owada was of the view that the duty should apply and indeed might apply a fortiori in advisory proceedings.[80] Although he did not articulate it in exactly this way, the Judge’s reasoning seems to have been as follows. Judge Owada appears to have considered that, in the absence of consent to jurisdiction, expectations that a disputant would provide the Court with argument and information supporting its views on a dispute must necessarily be reduced. In such circumstances the Court could not so readily take the view that ‘[t]he absent party… forfeits the opportunity to counter the factual allegations of its opponent’.[81] From Judge Owada’s perspective the Court was faced with serious problems in relation to evidence that would be less likely to arise in contentious proceedings. He noted that the Court expressed a lack of conviction 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’.[82] The Court was free to make further enquiries. Indeed, as Judge Owada noted, it was stated clearly in the Nicaragua case that ‘in principle [it] is not bound to confine its consideration to the material formally submitted to it by the parties’.[83]
However, despite these concerns about the Court’s approach to questions of proof and evidence, Judge Owada did not question the Court’s conclusions. Rather, he, too, found the impacts of the Wall’s construction amply substantiated and considered it reasonable to conclude that Israel had violated its international obligations. Further, these impacts were so overwhelming that he was ready to accept, based on the principles of proportionality, that no justification on the basis of military exigency could conceivably preclude the wrongfulness of Israel’s acts, even if further factual substantiation of Israel’s position were put forward.[84]
In contrast, Judge Buergenthal believed that in the exercise of its discretion the Court should have declined to render the advisory opinion requested by the General Assembly, and, as noted above, dissented from the Court’s decision to do so. Judge Buergenthal also voted against the Court’s findings on the merits on the basis of his view that ‘the Court did not have before it the requisite factual bases for its sweeping findings’.[85] He considered the availability of sufficient information and evidence to be the critical question for the Court in determining whether to give an advisory opinion.[86] Absence of the necessary material vitiated the findings of the Court.[87] The Judge expressly contrasted the application of rules concerning the burden of proof in contentious proceedings with those applying in an advisory case.[88] He took the view that the Court might have been justified, in the absence of Israeli presentation of relevant material, in relying exclusively on United Nations reports ‘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.’[89] This was not the case. He said: [90]
The Court may therefore not draw any adverse evidentiary conclusions from Israel’s failure to supply [the information] or assume, without itself fully enquiring into the matter, that the information and evidence before it is sufficient to support each and every one of its sweeping legal conclusions.
The significance of the questions addressed in the Separate Opinion of Judge Owada and the Declaration of Judge Buergenthal should not be overlooked. Situations may arise where a question put to the Court ‘raise[s] a question of fact which could not be elucidated without hearing both parties’, as recognised in the Court’s quotation from the Opinion of the Permanent Court of International Justice in the Status of Eastern Carelia.[91] In that case the problem of access to evidence was one of the reasons for the Permanent Court’s decision to decline to give an opinion.[92]
As observed earlier, the Court’s preparedness in an appropriate case to render an advisory opinion in the absence of representations by a party involved in a dispute may signal a development in the role of the Court. If the Court is to issue advisory opinions in circumstances where there is a dispute between States, the problem of the non-cooperative disputant can be expected to continue to occur. Although there may be cases where, for example, States might wish to withhold commercially sensitive information, the scenario that is more likely to arise in future is precisely that reflected in the request for an Advisory Opinion on the Wall, where the Court’s opinion is sought in relation to legal aspects of a situation involving armed conflict and where it is security-related information that is withheld from the Court. Disputants’ reasons for withholding security-related information may be due directly to their security concerns, may connect to a disputant’s internal or international political strategies, or may form part of the disputant’s litigation tactics. The question whether and when deference may be due to a participant’s determination of the information it can safely make public in court may arise.
The question at the core of Judge Buergenthal’s Declaration will in due course probably require to be addressed. May the Court draw adverse inferences in relation to the case of the non-cooperative party in the context of an advisory opinion?[93] Attention might be drawn to the comments of Judge Owada and Judge Buergenthal that advisory proceedings could be contrasted with contentious proceedings because in contentious proceedings disputants had “an obligation” to participate.[94] In the light of the privilege of non-appearance that pertains even in contentious proceedings, critical consideration may need to be given to arguments that contentious and advisory proceedings may readily be directly contrasted.[95] Also mitigating in favour of application of the doctrine of adverse inferences is the commitment of all Members of the United Nations Charter to peace and security. Where a request dealt with by the Court is a request made by the Security Council under Chapter VII of the Charter, or, as in the case of the Opinion on the Wall, a request made by the General Assembly under the “Uniting for Peace” procedure, might there not be grounds to consider that a particular duty of co-operation might arise on the part of disputants, requiring their participation in proceedings?
The Court rejected the argument put forward in certain participants’ written statements that the Court should not accede to the General Assembly’s request to render an opinion on the construction of the Wall because this would lack any useful purpose. It was argued that the General Assembly had itself clearly declared the Wall’s construction illegal and, it was argued, in demanding that Israel stop and reverse its construction, had determined for itself the legal consequences of construction. The General Assembly had not made clear how it planned to use the Court’s opinion.[96] The Court noted that this argument had failed in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion and rejected it again here on the same basis, that it was not for the Court to decide whether or not the General Assembly needed the Court’s opinion in order to carry out its functions, nor the usefulness of an opinion.[97] Adopting a relatively formulaic approach, the Court emphasised that its task was solely to examine the legal issues put before it in order to provide authoritative guidance for the requesting organ.[98] In line with this, the Court rejected as lacking in pertinence Israel’s argument that Palestine would obtain through the Court’s opinion ‘a remedy for a situation resulting from its own wrongdoing’.[99] The Advisory Opinion was to be given to the General Assembly rather than to Palestine or any other particular State or entity.[100]
Having dedicated approximately half its opinion to the question of its jurisdiction and whether to decline to exercise jurisdiction in the case before it, the Court proceeded to consider the substantive issues involved in responding to the Court’s request. Reviewing briefly the history of Palestine,[101] the Court made it clear that under customary international law the territories lying between the Green Line and the former eastern boundary of Palestine under the Mandate were occupied territories. After the 1967 conflict between Israel and Jordan, Israel was clearly the occupying power and had remained so since.[102] Judge Elaraby observed that, although such prolonged occupation might put pressure on aspects of the law on belligerent occupation pertaining to such territories, it was clear that full respect remained due to the law.[103] It was in these territories that Israel was constructing the Wall.[104] Judge Kooijmans added that the West Bank was to be classified as an occupied territory also from 1949 to 1967, during the period when it was under Jordanian control and claim.[105]
The Court then turned to the identification and application of the rules and principles of international law relevant to the legality of Israel’s actions, discussing applicable rules of international humanitarian law, international human rights law and the law relating to self-determination, assessing also whether factors involving military exigencies and self-defence might justify breaches of those rules. Lastly, based on these analyses, the Court examined, as requested, the legal consequences of the Wall’s construction.
The Court’s findings on each of these sets of issues will be considered in turn, beginning with the questions of Israel’s non-compliance with international humanitarian law and international human rights law. In this connection the Court observed that substantial restrictions had been imposed on the freedom of movement of inhabitants of the Occupied Palestinian Territory other than Israeli citizens, most markedly in urban areas. The example of the city of Qalqiliya was cited. Qalqiliya was a city of 40,000 people that was completely surrounded by the Wall and from which residents could come and go only between 7am and 7pm.[106] The Wall had also had serious repercussions for agriculture, with the destruction during the Wall’s construction of approximately 10,000 hectares of the West Bank’s most fertile agricultural land, including olive trees, citrus groves and hothouses. The World Food Programme had reported 25,000 new recipients of food aid.[107] Further, the Wall was increasingly causing difficulties in access to water, health services and educational establishments.[108] The Court reached the view that construction of the Wall, together with the establishment of Israeli settlements in the occupied territories, was producing changes in their demographic composition, with a significant number of Palestinians having been compelled to depart some areas.[109] Account was taken in the Court’s opinion also of the specific guarantees of freedom of access to Christian, Jewish and Islamic Holy Places, dating back in time, which the Court considered to have remained in place under Israeli occupation, including to the Room of the Last Supper and the Tomb of David.[110]
Early in its reasoning on the substance of the General Assembly’s request, the Court set out the prohibition in article 2(4) of the Charter on the threat or use of force against the territorial integrity or political independence of any State, as well as the statement in the 1970 Friendly Relations Declaration that: [111]
No territorial acquisition resulting from the threat or use of force shall be recognised as legal.
The Court then devoted attention to the principle of self-determination as enshrined in the UN Charter, reaffirmed in the Friendly Relations Declaration and the human rights Covenants, and applied in the context of non-self-governing territories,[112] before turning to consider the application of international humanitarian and human rights law. The Court paid particular attention to the contention that: [113]
… The wall severs the territorial sphere over which the Palestinian people are entitled to exercise their right of self-determination and constitutes a violation of the legal principle prohibiting the acquisition of territory by the use of force.
The existence of a Palestinian people had been recognised by Israel. Israel’s right to self-determination flowed from that and had been established in the General Assembly on a number of occasions.[114] Judge Higgins noted that this was the first time the Court had adopted a post-colonial view of self-determination. The General Assembly had adopted many resolutions referring to the application of self-determination in the type of situation at hand, where peoples were subject to “alien subjugation, domination and exploitation”, with the Occupied Territories and Afghanistan in mind, consistent with the United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.[1] The Human Rights Committee had consistently supported a post-colonial view of self-determination and there was a substantial body of doctrine and practice on the subject.
Israel had stated that the Wall was not a border and did not annex territories to Israel, emphasising that the Wall was rather part of Israel’s attempts to combat terrorist attacks coming from the West Bank.[11] However, the finding of the Court was that construction of the wall severely impeded the Palestinian people’s exercise of its right to self-determination.[116] In making this finding the Court also referred to its concerns that the route selected for the Wall might prejudge the future frontier between Israel and Palestine, creating a fait accompli on the ground that could become permanent, in which case construction of the Wall would be ‘tantamount to de facto annexation’.[117] The Wall’s route gave expression in loco to Israel’s breach of article 49(6) of the Fourth Geneva Convention.[118] The point was made in stronger terms by Judge Koroma, who considered that it would be illegal for Israeli action to change the status of the occupied territory. Occupied territory was not open to annexation.[119]
The Court’s reasoning on the question of self-determination was subject to critique from both Judge Higgins and Judge Kooijmans. Both Judges indicated that in their view the realisation of Palestinian self-determination depended more on political will than on the existence of the physical structure constituted by the Wall.[120] Judge Kooijmans noted that it had been recognised internationally that the terrorist attacks perpetrated upon Israel, and the Palestinian Authority’s failure to prevent them, also indirectly impeded the realisation of self-determination. He considered further legal analysis had been necessary. Was every impediment to self-determination a breach of the obligation to respect the right?[121] The questions raised in the Separate Opinions of these Judges call attention to the complexity of the dispute involved in the case with which the Court was dealing, calling into question the usefulness of a judicial opinion on a subject as broad as self-determination in a context as limited as the question of the legality of the construction of a particular edifice.
The Court found Israel’s construction of the Wall to be inconsistent with article 49(6) of the Fourth Geneva Convention and Security Council resolutions calling upon Israel to abide by the Convention,[122] with article 53 of the same Convention, and with articles 46 and 52 of the Hague Regulations of 1907.[123] Israel had ratified the Fourth Geneva Convention on 6 July 1951, but was not a party to the Fourth Hague Convention of 1907, to which the Hague Regulations are annexed. However the content of the Regulations was recognised as having become part of customary international law.[124] Section III of the Hague Regulations of 1907 applied to the West Bank.[125]
The relevant provisions are as follows. Article 49(6) of the Fourth Geneva Convention states that:
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
The policy operated by Israel since 1977 of establishing settlements in the Occupied Palestinian Territory was contrary to this provision, as had been recognised by the Security Council.[126] Article 53 provides that:
Any destruction by the occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organisations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.
The Court did not accept that there was such necessity.[127] The Court set out in its opinion also the full text of articles 47, 52 and 59, also applicable for the protection of individuals in occupied territories throughout the period of their occupation by virtue of article 6 of the Convention.[128] Article 46 of the Hague Regulations provides that private property must be respected and cannot be confiscated, while article 52 authorises requisitions in kind and services for the needs of occupying armies, subject to certain limits.[129]
Israel argued that the Fourth Geneva Convention was not applicable in the Occupied Palestinian Territory, even though both Jordan and Israel had been party to the Convention since 1951 and Palestine's unilateral declaration on 7 June 1982 that it would apply the Convention had been accepted as valid by the depository for the Convention, Switzerland (albeit while noting that it was not, as depository, in a position to decide whether the declaration might, as purported, constitute an instrument of accession).[130] In order to determine that the Convention applied to the occupied territories the Court was required to address the interpretation of article 2 of the Convention, a provision common to all four Geneva Conventions. The first two paragraphs of article 2 read: [131]
In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
The Israeli authorities had themselves stated that they applied the Convention’s humanitarian provisions within the occupied territories. However, the Court was required to address Israeli arguments that as a matter of law the Convention did not apply to the Occupied Territories. Israel did not accept that the Convention applied by virtue of the first paragraph of article 2 and furthermore rejected the view that the Convention applied by virtue of the second paragraph of article 2.[132] The Court had little difficulty in finding that article 2 envisaged the application of the Convention in situations such as the Israeli occupation. The Court was not prepared to accept the idea that the second paragraph of article 2 could have the effect of excluding from the ambit of the first paragraph territories not falling under the sovereignty of one of the Convention's contracting parties. The purpose of the second paragraph was simply to make it clear that the Convention would apply even where an occupation did not meet with armed resistance.[133] Reliance was placed on the affirmation of the High Contracting Parties in 1999 and 2001 of the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory[134] and the declaration of the International Committee of the Red Cross in 2001 that it had always considered the Convention to apply,[135] as well as on the adoption of the same view by the General Assembly[136] and the Security Council[137] and indeed by the Supreme Court of Israel.[138] The Court read the two paragraphs of article 2 in such a way that the Fourth Geneva Convention applied to the territory in which the Wall was being built, considering that, regardless of the status of the occupied territories, the drafters of the Convention had intended to protect civilians finding themselves in the hands of an occupying power, as indicated by the travaux preparatoires.[139]
When it came to assessing Israel’s compliance with its international human rights obligations, the Court found that Israel was in breach of the provision on freedom of movement in article 12(1) of the International Covenant on Civil and Political Rights (ICCPR), the provisions on the right to work, to health, to education and to an adequate standard of living in articles 6, 7, 11, 12, 13 and 14 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and articles 16, 24, 27 and 28 of the United Nations Convention on the Rights of the Child (UNCROC), providing related guarantees.[140] Israel was party to all three Conventions.
Israel’s argument that its obligations under these three human rights instruments did not extend to the Occupied Palestinian Territory was rejected, consistent with the views of the United Nations Human Rights Committee that the provisions of the Covenant did apply there. The Human Rights Committee had consistently taken this approach, and the Covenant’s travaux supported the Court’s view,[141] although article 2(1) of the ICCPR was ambiguous: [142]
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social opinion, property, birth, or other status.
In expressing concern about Israel’s attitude the Committee had at one point referred to the Israeli security forces’ exercise of effective jurisdiction in the territories, Israel’s long-standing presence there, and Israel’s ambiguous attitude towards the future status of the territories.[143] The rejection of Israel’s contentions was consistent also with the reaffirmation in 2001 by the International Committee on Economic, Social and Cultural Rights that Israel’s obligations under the ICESCR applied to ‘all territories and populations under its effective control’.[144] The Court determined that although the ICESCR lacked a provision on its scope of application and did, in the eyes of the Court, by nature guarantee rights that were essentially territorial in character, it was not to be excluded that the ICESCR applied ‘both to territories over which a party has sovereignty and to those over which that State exercises territorial jurisdiction’. In particular, the Covenant’s provision on the right to education, article 14, referred to both the metropolitan territory of a Party and other territories under its jurisdiction.[145] In respect of the Convention on the Rights of the Child, the Court observed that article 2 of the Convention stated that States party were to respect and ensure Convention rights to ‘each child within their jurisdiction…’[146]
The Court’s emphasis on effective jurisdiction, presence and control is of notable significance for States involved in conflicts abroad. While in this case it was relatively clear that such criteria were met, in other circumstances more precise understandings of these terms will require to be developed, including through a focus on whether it is the individuals in question or the territory in question that must be under a State’s jurisdiction or control. Relevant further observations of the Court included the comment that ‘while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory’ and that it would be natural that States party to the ICCPR were bound to give effect to the rights in the Covenant even where this was the case.[147]
The Court’s assessment of Israel’s compliance with the substance of its human rights obligations took into account the notification submitted by Israel in 1991 to the United Nations Secretary-General of Israel’s derogation from article 9 of the ICCPR in the context of the ongoing State of Emergency proclaimed by Israel in 1948. The Court observed that article 9 dealt only with the right to liberty and security of the person, and that Israel remained obliged to comply fully with the remaining provisions of the ICCPR, including those dealing with an individual’s right to be free from arbitrary or unlawful interference with his or her privacy, family, home or correspondence in article 17(1) of the ICCPR and the right to liberty of movement and freedom to choose his or her place of residence in article 12(1).[148] However, there were qualifications on a certain number of Israel’s human rights obligations. Article 12(3) of the ICCPR permitted restrictions on freedom of movement as provided by law and as necessary to protect national security, public order, public health or morals or the rights and freedoms of others, where consistent with the other rights recognised in the Covenant. Adopting the approach of the Human Rights Committee, the Court read the test of necessity in article 12(3) as involving a requirement that any restrictions on the right in article 12(1) conform with the principle of proportionality, and that they ‘be the least intrusive instrument amongst those which might achieve the desired result.’ The Court did not consider Israel had complied with this requirement.[149] In relation to the rights at issue under the ICESCR, the Court noted that parties to that Covenant were permitted by article 4 to subject the rights it contained only to ‘such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’[150] The Court did not accept that the restrictions on their economic, social and cultural rights suffered by Palestinians living in the territory occupied by Israel were ‘solely for the purpose of promoting the general welfare in a democratic society.’[151]
Israel argued that these human rights conventions did not apply in the Occupied Palestinian Territory, based on the notion that it was humanitarian law that was applicable in relation to situations of armed conflict, and that this ousted the applicability of human rights law: [152]
[Israel] 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.
A similar argument had been made by certain States participating in the proceedings before the Court in relation to its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons and had been roundly rejected by the Court, without prejudice to the provision in article 4 of the ICCPR permitting derogation from specified rights in time of national emergency subject to certain conditions.[153]
The Court makes it clear that international humanitarian law and international human rights law apply alongside one another in times of armed conflict: [154]
the protection offered by human rights conventions does not cease in case of armed conflict.
The Court’s analysis of the relationship between international humanitarian law and international human rights law continues to build on the concept of international humanitarian law as the lex specialis in times of armed conflict where matters arise that raise issues under both bodies of law, as suggested by the Court in the Nuclear Weapons Advisory Opinion.[155] This approach bears further contemplation. Obviously the Court does not consider that as a general rule international human rights law will cease to apply where international humanitarian law applies. Yet the Advisory Opinion contains little that might advance appreciation of how the two bodies of law may inform one another. There will be a need for refinements in legal reasoning as to the respects in which international humanitarian law remains reinforced or complemented by international human rights law and the respects in which it will truly require application as a lex specialis.[156]
Dealing with international human rights law and international humanitarian law more closely together might have been productive in the Advisory Opinion on the Wall, particularly in relation to population transfers. For example, tests for assessing the necessity of restrictions upon human rights for the protection of national security and public order under the ICCPR could provide insights relevant for the implementation of the provisions in article 49(1) and (2) of the Fourth Geneva Convention. These provisions deal with the forcible transfer or deportation of protected persons, permitting this only where demanded for the security of the population or military imperatives.[157] In the event, that provision was not required to be applied in the Advisory Opinion. It was the provision in article 49(6) that Israel was found to have breached, a provision dealing with the transfer of a State’s own population into occupied territory.[158]
However, the question of the compelled departure of the Palestinians from some parts of the occupied territories, referred to above, may deserve further attention. Nowhere is it altogether clear that analysis of this question formed an integral part of the Court’s legal reasoning.[159] The Opinion referred to no argument that forcible relocation of Palestinians was taking place, and there was therefore no question of transfer or deportation arising under the Fourth Geneva Convention. Nor was the issue addressed under article 12(1) of the ICCPR, where there might have been an argument that creation of the circumstances leading to departures constituted an interference with Palestinians’ freedom to choose their residence. The Court couched its conclusion on self-determination as following from the finding that the Wall’s construction was contributing to the departure of Palestinians from certain areas.[160] Yet Judge Higgins considered this to involve a non-sequitur.[161] If her view is adopted, it becomes apparent that the question of the compelled departure of the Palestinians would seem to have no true home within the Court’s opinion. Is it possible that this would have been remedied if a different methodology had been adopted for addressing all concerns that might arise under international humanitarian law as well as under international human rights law?
The Court’s approach to the human rights issues addressed in the Opinion lacked a detailed focus on the interpretation and application of the applicable rights, the Court directing analytical attention primarily to the territorial application of the Covenants and the qualifications applying to the rights they contain. Judge Higgins perhaps would not agree with this concern, querying whether the Court should be asked to deal with subjects in relation to which the human rights treaty bodies exercise an ongoing mandate:[162]
For both Covenants, one may wonder about the appropriateness of asking for advisory opinions from the Court on compliance by States parties with such obligations, which are monitored, in much greater detail, by a treaty body established for that purpose.
It is true that States would no doubt be hesitant to bring before the Court in a contentious suit questions of one another’s compliance with international human rights obligations. Legal confrontation between States is not a regular feature of international human rights diplomacy. The provisions in articles 41 and 42 of the ICCPR for investigation and resolution of disputes between States on the interpretation and application of the Covenant have gone unused. Even in the European context inter-State challenges are infrequent. However, on the other hand, as a matter of general policy is it desirable for the International Court to be considered an inappropriate forum for legal issues in the human rights sphere? Unlike the Human Rights Committee, the Court is a forum in which, subject to jurisdiction, there could be issued a binding judgment on a UN Member’s compliance with international human rights law. This may at some point prove to be an invaluable facility. To have the facility “in reserve”, as it were, is in itself of inherent value as part of the accountability structure of international human rights law. It might also be observed that, although co-ordination among the human rights treaty bodies has been improved, these bodies have been established to address matters arising in relation to the implementation of their respective empowering treaties. In contrast the Court may have jurisdiction to consider simultaneously issues arising in parallel under more than one of the treaties. The Court may also have jurisdiction to address human rights issues arising under customary international law, a capacity that could come into its own where a disputant was not party to a relevant human rights treaty. Nor does the Human Rights Committee analyse alongside one another States’ obligations under international humanitarian law and international human rights law. This is another task that, as indicated earlier, the Court might undertake. Most pertinently, perhaps, the Court may frequently deal with cases involving disputes between States of which human rights compliance is but a single facet, but nevertheless not one that should be severed entirely from the rest of the dispute. These considerations hold for requests for advisory opinions as well as for contentious proceedings.
Thus there appear to be a number of reasons why it may be desirable to retain the understanding that it may be appropriate to submit to the Court questions concerning situations and disputes arising between States that involve human rights. The treaty bodies have generated a detailed procedural and substantive jurisprudence on human rights issues, it is true; yet this means only that if comity and the unity of the law were the primary concern, their preservation might have to come at the cost of a more elaborately researched and reasoned approach on the part of the Court to questions of human rights law coming before it. It is suggested with respect, therefore, that Judge Higgins’ comment should not be over-read, and might best understood as advice to the General Assembly or any other organ of the UN contemplating requesting an advisory opinion from the International Court to consider carefully the desirability of asking the Court to engage in human rights issues. However in circumstances such as those giving rise to the request for the Advisory Opinion on the Wall that may not be easily avoided.
Judge Higgins might not have agreed, either, with the suggestion that international human rights obligations and obligations under international humanitarian law might be considered more closely alongside one another, but the Judge did consider that the Court’s analysis of Israel’s compliance and non-compliance with international humanitarian law should have contained a referenced and detailed analysis of the issues.[163] Judge Higgins also argued that the Court should have included within its dispositif the call for both parties to observe their obligations under international humanitarian law, as had been done in the Court’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons:[164]
I think the Court should also have taken the opportunity to say, in the clearest terms, what regrettably today apparently needs constant reaffirmation even among international lawyers, namely, that the protection of civilians remains an intransgressible obligation of international humanitarian law, not only for the occupier but equally for those seeking to liberate themselves from occupation.[165]
Part of the impetus behind accentuation of international humanitarian law in the circumstances giving rise to the Advisory Opinion on the Wall may be the importance of ensuring that a focus on the status of the Occupied Territories is not lost. There is a need to avoid juridical approaches that may inadvertently add weight to any idea that these territories might be subject to the very process of de facto annexation about which the Court showed itself to be so concerned in considering the question of self-determination. The emphasis may not be necessary, however. It is entirely clear that the recognition of responsibility for the guarantee of human rights in territories under States’ jurisdiction and control is without prejudice to their responsibility for the implementation of guarantees found in international humanitarian law.
In dealing with the subjects of self-defence, terrorism and necessity, the Court made strides to safeguard the careful development of international law in the light of events that have taken place in Afghanistan and Iraq since the adoption of the International Law Commission’s Articles on State Responsibility in 2001.[166] The Court rejected Israeli arguments that construction of the Wall was a justified response to the threats to its security posed by terrorist attacks from Palestine, concluding that:[167]
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.
Consistent with this, the Court stated that, since it had been concluded that the Wall’s construction and the associated regime were contrary to a number of Israel’s international legal obligations, it followed that Israel’s responsibility under international law was engaged.[168]
The Court thus, in some measure at least, seems to have come to the questions of both self-defence and necessity from a perspective that treated them as rules precluding the wrongfulness of acts contrary to international law. Yet there was ambivalence in the reasoning of the Court as to precisely how the Court viewed both self-defence and necessity, as discussed below. The observation might be made that there was no indication in the drafting of the Court’s dispositif of the notion that there had been an analytical step between the Court’s finding that Israel’s acts were contrary to international law and the Court’s conclusion that Israel’s responsibility was engaged by these acts. Indeed, the way in which the latter conclusion was expressed omitted any indication that there might have been circumstances precluding the wrongfulness of the breach in question.[169]
The application of the doctrine of self-defence may be considered first. article 51 of the United Nations Charter states that:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.
The Court focused initially on Israel’s arguments that construction of the Wall was a non-forcible exercise of Israel’s inherent right of self-defence as protected under article 51, but found that article 51 was irrelevant in this case on the basis that article 51 applied only in respect of attacks against United Nations Members by other States. The Court then found that Israel could not invoke a right of self-defence when Israel was dealing with a threat emanating from within territory in which Israel exercised control.[1]
In the Separate Opinions of Judge Higgins and Judge Kooijmans, and in the Declaration made by Judge Buergenthal, these two key aspects of the Court’s application of article 51 were debated. Judge Kooijmans did not accept the Court’s view that the inherent right of self-defence recognised in article 51 of the Charter existed only in case of an armed attack by a State. Even if that had been the generally accepted interpretation for more than 50 years, Security Council resolutions were now expressing the Council’s power to take action in response to threats to international peace and security regardless of whether these threats emanated from States or from private individuals, and were referring to the inherent right of individual or collective self-defence without reference to an armed attack by a State. The Judge considered it regrettable that the Court had “by-passed” this new element in the Security Counil’s resolutions.[17] However, Judge Kooijmans considered that, even so far as it now related to acts of terrorism, the law on self-defence referred only to acts of international terrorism. He did not view the acts perpetrated by Palestinians originating within territory controlled by Israel as acts of international terrorism. Therefore article 51 was not susceptible of application in relation to the construction of the Wall.[171]
Judge Higgins also held reservations about the interpretation of article 51 of the UN Charter as admitting a right of self-defence only to counter an armed attack made by a State.[172] The Judge additionally found unpersuasive the Court’s conclusions that attacks upon Israel emanating from the occupied territory could not be countered by Israel as a matter of self-defence. The Judge said that she failed to understand ‘the Court’s view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory’.[173] This territory was, after all, “other” than Israeli, having been found not to have been annexed. Palestine had, after all, been accorded international status sufficient to permit its participation in the proceedings at hand and to permit it to benefit from international humanitarian law. However Judge Higgins had not voted against the relevant subparagraph of the dispositif[174] for two reasons. First, she was not convinced that non-forcible measures such as building of a wall might fall within the ambit of self-defence under article 51, and, second, even if that were conceded, the necessity and proportionality of building the wall along its selected route had not been established.
Judge Buergenthal’s views on the question of self-defence were critical in all respects of the approach taken by the Court. He was concerned that the Court had not adequately examined the nature and impact of the attacks experienced by Israel. He considered article 51 might apply to attacks other than those carried out by States.[175] He also considered that article 51 might apply in respect of attacks from the Occupied Palestinian Territory, because this territory was “not part of Israel proper”.[176] He considered that the necessity and proportionality of the Wall’s construction as a response to Palestinian attacks required to be evaluated.[177] In abstaining from doing so the Court had, in the view of Judge Buergenthal, failed to deal with the issues at the heart of the case.[178] However, Judge Buergenthal accepted that it was seriously doubtful that the proportionality requirement could be fulfilled in relation to Israel’s violation of article 49(6) through its establishment of Israeli settlements on the West Bank, together with the construction of the Wall to protect them, and the creation of Palestinian enclaves occasioned by this.[179]
The Court’s approach to these questions associated with the law on self-defence noticeably set aside the need for detailed examination of the issues they raised. Instead, the Court moved on to consider the doctrine of necessity. The doctrine of necessity is not encumbered by the most troublesome aspects of the law of self-defence. A threat need not emanate from a State, nor from outside the State responding to the threat. Proof of an “armed attack” is not required. The requirement that an attack be “imminent” does not require to be addressed, although the law on necessity does require a grave and imminent peril.
However, Israel’s actions were not to be excused under the doctrine of necessity. Citing its own judgment in the Gabcíkovo Nagymaros Project (Hungary/Slovakia),[180] the Court noted the exceptional character of a state of necessity and reiterated the language used by the International Law Commission to capture the kernel of the doctrine: the act being challenged had to be ‘the only way for the State to safeguard an essential interest against a grave and imminent peril’.[181] The Court was not satisfied, in the light of the material before it, that the Wall’s construction on the route chosen was the only means available to Israel to safeguard itself against the peril referred to.[182]
The Advisory Opinion on the Wall may perhaps bring about a change of key in legal debate and analysis on responses to terrorism. Instead of trying to deal with a new problem, i.e. large-scale international terrorism, in the old terms of the law on self-defence, States may find in the Advisory Opinion further avenues to explore in relation to the doctrine of necessity. The doctrine of necessity, a relatively underdeveloped international legal doctrine, could prove to be more appropriate in certain circumstances than the law on self-defence. The doctrine of necessity may be more consistent than the doctrine of self-defence with the legal conceptualisation of terrorist threats as falling essentially outside the rubric of State-to-State relations, as involving activities that may not always qualify as “armed attacks” and in calling for responses that may breach rules of international law other than those dealing with the use of force.
The Court’s approach also does much to dispel any notion that a State’s breach of human rights obligations in the course of response to a terrorist threat emanating from its own territory could be precluded under the doctrine of self-defence. Yet the question of whether and when the doctrine of necessity might provide a means by which States could defend violations of human rights and other international legal obligations within territories under their control remains open. In addressing this broad question it will be important to recall that consideration should be given to whether particular tests of necessity found in international human rights law and international humanitarian law may require to be applied prior to any contemplation of whether the doctrine of necessity may be applicable. Such necessity tests were at issue in the Advisory Opinion on the Wall itself.[183] By reason of their breadth, or of their clear object and purpose, they might well be expected to eclipse the doctrine of necessity in many circumstances.[184] It does seem that developments in understandings of the rules on applicability of human rights commitments in territories under States’ partial control will require in some way to be reconciled with the fact that such control may not be sufficiently complete to prevent significant violence directed to that State or its citizens. It would be more desirable for this to be done through interpretation of international human rights law and international humanitarian law than by means of a doctrine potentially providing more of an apparent carte blanche to States with problems like those faced by Israel.
The Court’s approach to questions of human rights and international humanitarian law, and to the doctrines of self-defence and necessity respectively, was consistent with an awareness of this concern. It will be recalled that the Law Commission’s Articles treat circumstances of self-defence and of necessity as among the situations where the wrongfulness of a State’s breach or breaches of international law may be precluded. In such circumstances a State will not be responsible in international law in relation to these breaches and accordingly the consequences usually attaching to responsibility will not follow.[185] In addition to circumstances involving self defence[186] or necessity[187] the Commission identifies as circumstances precluding wrongfulness also situations involving the consent of an injured State,[188] force majeure,[189] distress,[190] and circumstances where a State’s act would be wrongful but for the fact it constitutes a legitimate countermeasure against the wrongful act of another State.[191] The Court did not engage closely with the schema on responsibility developed by the Commission.[192] The Court presumably saw the Commission’s formulation on self-defence as adding little to its reasoning, cast as it is in terms of Charter obligations.[193] In relation to the doctrine of necessity, the Court explicitly declined to assess whether the relevant customary international law fell to be applied as a matter of primary or secondary law.[194]
As recorded at the beginning of this note, the Court dedicated most of the paragraphs and subparagraphs making up its dispositif to a statement of the legal consequences arising from the construction of the Wall being built by Israel.[195] By virtue of this device, the Court’s Advisory Opinion took on the guise of one targeted more uniquely to the subject of those legal consequences than was the case. In fact, for the reasons discussed above, the major part of the exposition and reasoning contained in that part of the Court’s opinion dealing with the merits of the General Assembly’s request was directed rather towards an assessment of the legality of Israel’s acts.[196] Given this balance within the opinion there would seem to be some merit to Judge Higgins’ view that paragraph A of the Court’s reply to the General Assembly’s question should have contained a statement of the particular rules of international law that the Court considered Israel to have violated,[197] rather than simply a statement that the Wall’s construction and the associated regime were contrary to international law.[198]
In contrast, paragraphs B to E of the Court’s response dealt in much more specific terms with the Court’s view of the legal consequences of the Wall’s construction. Those findings may briefly be resummarised here for ease of reference. It will be recalled that paragraph 163(3)B of the Advisory Opinion stated that Israel was under an obligation to terminate its breaches of international law, to cease construction and dismantle the structure situated in the occupied territory, including in and around East Jerusalem, and repeal or render ineffective all related legislative and regulatory acts.[199] As recorded in the body of the Court’s opinion, Israel was bound to respect the Palestinian people’s right to self-determination, Israel’s obligations under international humanitarian law and international human rights law, and freedom of access to the Holy Places controlled by Israel.[200] Paragraph 163(3)(C) stated that Israel was under an obligation to make reparation for damage caused by the Wall’s construction in the occupied territory, including in and around East Jerusalem.[201] This included making reparation for damage caused to natural and legal persons through the requisition and destruction of homes, businesses and agricultural holdings[202] and returning to their owners such land, orchards, olive groves and other immovable property as had been seized.[203]
Paragraph 163(3)(D) said that all States were obliged not to recognise the illegal situation resulting from the Wall’s construction and not to render aid or assistance in maintaining the situation, while parties to the Fourth Geneva Convention were also obliged to ensure Israel’s compliance with the Convention.[204] Paragraph 163(3)(E) stated that the United Nations and especially the General Assembly and the Security Council should consider the further action required to bring the illegal situation to an end, taking due account of the Court’s Advisory Opinion.[205] The Court emphasised the urgent necessity for the United Nations to redouble efforts to secure a speedy conclusion to the Israeli-Palestinian conflict, recording its concern to lend its support to the purposes and principles of the UN Charter.[206] Paragraph 163(3)(E) effectively incorporated comments made in the body of the Advisory Opinion, drawing to the attention of the General Assembly the need to encourage efforts to achieve as soon as possible a negotiated solution to the problems between Israel and Palestine, and the achievement of a Palestinian State.[207] Also, the Court noted that illegal actions had been taken on all sides, and that bringing an end to the tragic situation prevailing required the implementation in good faith of the relevant Security Council resolutions, including resolution 1515 of 2003 endorsing the “Roadmap”.[208]
The finding made in paragraph 163(3)(D) is of particular interest here. Paragraph 163(3)(D) dealt with the obligations falling upon other States in respect of Israel’s illegal acts, and was subject to strong and well-grounded critique on the part of those Judges who issued Separate Opinions on the issues concerned.
In relation to its findings in paragraph 163(3)(D), the Court observed that among the obligations violated by Israel were certain obligations that were “the concern of all States”, or in the protection of which, by virtue of their importance, all States had a legal interest, and these were obligations erga omnes.[209] The obligations erga omnes that Israel had violated were the obligation to respect the Palestinian people’s right to self-determination, and certain applicable rules of international humanitarian law.[210] The assertion of the erga omnes character of the right to self-determination had been recognised as irreproachable in the East Timor case; and the Friendly Relations Declaration had invoked the duty of every State to promote through joint and separate action the realisation of the principle of equal rights and self-determination of peoples, and to assist the United Nations in carrying out its responsibilities regarding the principle’s implementation.[211] The Court considered that accordingly it was for all States to see to it that any impediment to the Palestinian people’s right to self-determination resulting from the Wall’s construction was brought to an end.[212] In respect of international humanitarian law, the Court did not identify the particular provisions that it believed to constitute obligations erga omnes. The Court’s approach was to recall its own statement in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion that ‘a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and “elementary considerations of humanity”…’ that they were ‘to be observed by all states whether or not they have ratified the Conventions that contain them, because they constitute intransgressible principles of international customary law’, and to build on that comment with the statement that the Court took the view that these rules incorporated obligations that were of an erga omnes character.[213]
Judge Higgins disagreed that the consequences of Israel’s violation of its obligations, as identified in paragraph 163(3)(D), had any connection with the concept of obligations erga omnes. The Judge considered this concept as elucidated in Barcelona Traction to relate specifically and only to locus standi, although agreeing with the International Law Commission that there were certain rights in which, due to their importance, all States had a legal interest. For Judge Higgins it was self-evident that third parties were obliged not to recognise or assist the maintenance of an illegal situation and assertions that certain rights entailed obligations erga omnes were not necessary to that conclusion.[214]
Judge Kooijmans took the view that the terms of the General Assembly’s request did not require the Court to give an opinion as to the consequences for third States of Israel’s acts once they had been found to be illegal,[215] although this would not prevent the Court from doing so if there were a reason why this was required. What then was the reason why the Court had done so? This appeared to be the designation of the obligations violated by Israel as obligations erga omnes. However, Judge Kooijmans could not understand why a violation of an obligation erga omnes would necessarily generate an obligation on the part of a third State. He noted that article 41 of the ILC’s Articles on State Responsibility said that States shall cooperate to bring an end through lawful means to any serious breach by a State of an obligation arising under a peremptory norm of international law, and shall not recognise as lawful a situation created by such a breach.[216] For the purposes of his argument the Judge was prepared to assume that obligations erga omnes were obligations arising under peremptory norms of international law.[217] However, the Judge took issue with any idea that paragraph 163(3)(D) might subject individual States to obligations to bring serious breaches to an end. Article 41 referred only to a “joint and coordinated effort by States”, such as that envisaged in paragraph 163 (3)(E).[218]
While Judge Kooijmans fully supported that part of paragraph 163(3)(D) of the Advisory Opinion dealing with States’ obligations not to render aid or assistance to maintaining the situation created by Israel’s serious breach,[219] he also objected to the formulation of the stated duty not to recognise the illegal situation resulting from the Wall’s construction.[220] This was too vague. The Judge found the Court’s findings on this question of a duty of non-recognition to be general and weak, and considered that they did not inform States of what they were required to do or not to do in practice.[221] The finding in paragraph 163(3)(D) contrasted with the examples given by the International Law Commission of situations where a duty of non-recognition might pertain. These examples involved the assertion of legal claims to territory and included Japan’s annexation of Manchuria and Iraq’s annexation of Kuwait. In those instances Judge Kooijmans had no difficulty accepting a duty of non-recognition. In the present case it was less clear what was entailed by a duty of non-recognition, beyond the condemnation of the Wall that had already taken place.[222] Nor did the Court’s statements in East Timor, that the right to self-determination was a right erga omnes, say how the right translated into obligations for States other than the colonial power.[223] Judge Kooijmans also disagreed with the Court’s conclusion that parties to the Fourth Geneva Convention were obliged to ensure Israel’s compliance with the Convention. This was not supported by the Convention’s travaux, even though the International Committee of the Red Cross had taken such a view.[224]
A number of questions remain in relation to the Court’s comments about the character of the obligations identified as obligations erga omnes. Why did the Court consider rights under international humanitarian law to generate obligations of such a character? Why not rights under international human rights law? Why did the Court not specify those rights it had in mind? On what basis did the Court identify these rights as having the same erga omnes operation as the right of self-determination? No issue need necessarily be taken with the desirability of developing further the comments made in Legality of the Threat or Use of Nuclear Weapons on the nature of these rights, but might it not have been taken more natural to do so in terms of their character as peremptory norms? On the other hand, an advantage of the Court’s approach, if it can be sustained, is that this approach offers to inject further into international understanding of these rights or obligations the distinct connotation that they concern interests properly to be viewed as the common concern of all States. At this point in history that is significant.
No special rule exists to excuse States responding to terrorist activity from their obligations under international humanitarian law or basic international human rights law, including commitments in the area of economic, social and cultural rights. The Court’s Advisory Opinion on the Wall identified clearly the infringement of numerous Palestinians’ rights to work, to education, to health, and to freedom of movement and choice of place of residence that was being brought about through the construction of the Wall. In the Advisory Opinion on the Wall the International Court of Justice adopted a vitalising focus on parallel application of international human rights and humanitarian law relating to individuals’ everyday life in the context of a dispute in a forum where grand questions of inter-State diplomacy might have predominated.[225] The result is a refreshing and regrounded perspective on conflict, revelatory of the degree to which international law can and should be read as concerning the essential needs of the natural persons whose interests it should ultimately protect. Taking into account also the Court’s focus on core legal obligations applying as among all States, the Court’s approach to the question before it can be considered consistent with a vision of international law that increasingly incorporates notions of community interest.
The Court found that arguments relating to Israel’s inherent rights to self-defence, recognised in article 51 of the United Nations Charter, were not germane in the formulation of its Opinion on the legal consequences of the Wall’s construction. Nor was the Court persuaded that the situation faced by Israel justified construction of the Wall on the basis of necessity. Through its analyses on the subjects of self-defence and necessity, the Court called attention to those respects in which the doctrine of necessity may be better fitted to the justification of responses to terrorism than the law of self-defence. At the same time it was emphasised that the doctrine of necessity may only be applied in extreme circumstances. The approach applied by the Court appeared to indicate that necessity tests in provisions of international human rights law and international humanitarian law permitting derogation from certain rights should generally be applied in place of the doctrine of necessity where issues under these bodies of law are concerned.
The delivery of the Advisory Opinion on the Wall is also significant for a number of other reasons. The General Assembly’s request for the Opinion brought about a situation in which thought was required on a number of points connected with elaboration of the judicial role in international law. Implicit in the Court’s approach to the request is an ongoing trend towards stronger and more closely complementary international institutional responses to situations involving serious or problematic breaches of international law. In several key respects, the Court placed itself shoulder to shoulder with other international institutions as a servant of international law. As discussed in the course of this Note, these other international institutions included the United Nations General Assembly, the United Nations Security Council and international treaty bodies. In order to give effect to the General Assembly’s request under the “Uniting for Peace” procedure, the Court displayed a high tolerance for the undeniably strong bilateral aspects of the situation to which the General Assembly’s request related, declining also to call into question the General Assembly’s view of the usefulness of an advisory opinion on the subject in hand.
Challenges lie ahead for the Court. The Advisory Opinion on the Wall has required a step forward in recognition of the scope for the Court to play an advisory role in contexts involving a concrete threat to international peace and security. The role goes beyond that exercised in the Nuclear Weapons Advisory Opinion,[226] where no particular concrete threat was under consideration, or in the case of Certain Expenses of the United Nations,[227] which concerned United Nations’ Members’ obligations to contribute to the expenses of UN Forces created under the “Uniting for Peace” Resolution. A wary tread will be required in order to ensure respect for fundamental principles in such cases. Ongoing thought may need to be given to the question of how to deal with a situation where a disputant declines to put information before the Court in advisory proceedings, and the Court is less confident than it was in the context of the Advisory Opinion on the Wall that it has access to sufficient information to render an opinion.
The Court’s accession to the General Assembly’s request to render an opinion on the construction of Israel’s Wall may indicate a growing role for the Court in relation to situations involving armed conflict. It is to be noted that in order to accomplish the prompt delivery of a comprehensive opinion in this case the Court adopted procedures enabling hearings to be held urgently and on an inclusive basis. This, many will say, is what a World Court is for! At the very least, the Court’s Advisory Opinion on the Wall underlines that:[228]
[T]hose engaged in conflict have always known that it is the price of our hopes for the future that they must, whatever the provocation, fight ‘with one hand behind their back’.
[*] Caroline E. Foster, BA LLB (Cantuar) LLM PhD (Cantab), Lecturer in Law, University of Auckland. My thanks to Dapo Akande, University Lecturer in Public International Law, Faculty of Law, St. Peter's College, University of Oxford, for his helpful comments on a draft of this Note. Any errors remain my own. The Note was developed as the author finalised a lengthier article on developments taking place in relation to the role of international adjudicative bodies in the context of armed conflict, and might be read in conjunction with the observations made in that article. Foster, Caroline E ‘The Role of International Courts and Tribunals in Relation to Armed Conflict’, in Tina Dolgopol and Judith Gardam (eds) The Challenge of Conflict: International Law Responds, Martinus Nijhoff Publishers, the Hague (forthcoming).
[1] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004 (hereafter Adv. Op.) [141].
[2] Article 65(1) of the Statute of the International Court of Justice provides that:
‘The Court may give an advisory opinion on any legal question on the request of whatever body may be authorised by or in accordance with the Charter of the United Nations to make such a request.’
[3] Article 59 of the Statute of the International Court of Justice.
[4] Article 96 reads:
‘1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.
2. Other organs of the United Nations and specialised agencies, which may at any time be so authorised by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.’
[5] Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13 A/ES-10/248, [8]-[9]. See also Adv. Op. [80]-[84].
[6] Adv. Op. [85].
[7] Ibid, [81].
[8] Ibid, Annex I [6].
[9] Ibid, Annex II.
[10] Ibid. See also Secretary General’s Report Section D – Humanitarian and Social Impact.
[11] Report of the Secretary-General, above n 5, [2], [4]-[6].
[12] Resolution ES-10/2.
[13] Resolution ES-10/13.
[14] Resolution 1515 (2003).
[15] Adv. Op. dispositif, [163(3)(A)].
[16] Ibid, [163(3)(B)].
[17] Ibid, [163(3)(C)].
[18] Ibid, [163(3)(E)].
[19] Ibid, [163(3)(D)].
[20] Order of 19 December 2003, fixing the time-limit at 30 January 2004, in accordance with article 66(4) of the Court’s Statute. Statute of the International Court of Justice, 1945. Member States’ written and oral submissions can be consulted on the Court’s website.
[21] Ibid.
[22] Adv. Op. [6]-[12].
[23] Above n 2. Adv. Op. [14], citing Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, (1982) ICJ 333-334, [21].
[24] Above n 4. Adv. Op. [15].
[25] Adv. Op. [17]. See article 11(2) of the Charter, which establishes the General Assembly’s competence to discuss any questions relating to the maintenance of international peace and security and to make recommendations on these matters subject to article 12.
[26] Ibid, [25].
[27] Ibid, [27] and [28].
[28] Ibid, [27].
[29] Malcolm Shaw, International Law, (5th ed, 2003), 1151-1153.
[30] Adv. Op. [30].
[31] Ibid, [31], punctuation added. See also [29].
[32] Ibid, [29] and [32].
[33] Ibid, [31] and [33].
[34] Ibid, [34].
[35] Ibid, [35], citing Legal Consequences for States of the Continued Presence of South Africa in Nambia (South West Africa) notwithstanding Security Council Resolution 276 (1970) Advisory Opinion of 21 June 1971, (1971) ICJ 22, [20].
[36] Judge Kooijmans Separate Opinion [14]-[18]. On Resolution ES-10/13, above n 13.
[37] Adv. Op. [26], citing Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) Advisory Opinion of 20 July 1962, (1962) ICJ 163.
[38] Adv. Op. [37], citing the test established in the Court’s advisory opinion on Western Sahara, whether a question has ‘been framed in terms of law and raises[s] problems of international law’. Western Sahara Advisory Opinion, (1975) ICJ 18, [15]. See also [39].
[39] Adv. Op. [38].
[40] Ibid, [40], citing Legality of the Threat or Use of Nuclear Weapons Advisory Opinion 1996, [1996] 1 ICJ 236, [15].
[41] Adv. Op. [41].
[42] Article 92 UN Charter.
[43] Adv. Op. [44], citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, (1950) ICJ 71.
[44] Adv. Op. [44], [45].
[45] See earlier section titled ‘Did the General Assembly Have the Power to Request the Court to Render an Advisory Opinion?’.
[46] Adv. Op. [46].
[47] Ibid, [47].
[48] Ibid, [48]-[50].
[49] Judge Higgins, Separate Opinion, [6].
[50] Ibid, [7].
[51] Western Sahara Advisory Opinion, above n 38.
[52] Judge Higgins, Separate Opinion [12], citing Western Sahara Advisory Opinion, above n 38, 26-27, [39].
[53] Ibid.
[54] Ibid, [23], citing Judge Petrén in the Namibia case, above n 35, 128.
[55] Adv. Op. [39]. See also [36], where the Court noted opposing arguments on the question whether assessing the legal consequences of constructing the Wall required assessing the legality of its construction.
[56] Ibid, [25], citing Judge Dillard in the Namibia case, above n 35, 151. See also [21], [26].
[57] Ibid, [24]. See also below under the subheading ‘Arguments that the Court should decline to give an opinion because this would lack any useful purpose and because the Palestinians did not have “clean hands”’.
[58] Judge Owada, Separate Opinion, [9].
[59] Ibid, [4], citing Michla Pomerance, The Advisory Function of the International Court in the League and U.N. Eras (1973) 9.
[60] Western Sahara, above n 38, [33], quoted by Judge Owada at [13] of his Separate Opinion.
[61] Status of Eastern Carelia, Advisory Opinion, 1923 PCIJ Series B, No.5.
[62] Ibid, [10], [12].
[63] Above n 38.
[64] Judge Owada, Separate Opinion, [12].
[65] Ibid, [14].
[66] Ibid, [15]-[16], citing Western Sahara, above n 38, 21 [23].
[67] Ibid, [19].
[68] See below pages 16-21. Also, on the views of Judge Buergenthal, pages 19-21.
[69] See the Eastern Carelia case, above n 61.
[70] Adv. Op. [51]-[54].
[71] Adv. Op. [55].
[72] Above n 38, 28-29 [46], quoted in Adv. Op. [56].
72 Above n 5.
[73] Adv. Op. [57]. The Court’s Conclusion was supported by Judge Kooijmans in his Separate Opinion at [28] and is discussed and supported by Judge Higgins in her Separate Opinion at [40], referring to additional documents containing useful information.
[74] Ibid, [136].
[75] Ibid, [137]. As noted by Judge Owada, Separate Opinion, [23].
[76] Above pages 14-15.
[77] Judge Owada, Separate Opinion, [30]. See also [22].
[78] Ibid, [20], citing the Court’s judgment in Fisheries Jurisdiction, (1974) ICJ 181, [18].
[79] Ibid, [20], citing the Court’s judgment in Military and Paramilitary Activities in and against Nicaragua (Merits), (1986) ICJ 25-26, [31], referring to the Court’s judgment in Nuclear Tests, (1974) ICJ 263, [31].
[80] Ibid, [21].
[81] Ibid, quoting from the judgment of the Court in Nicaragua, above n 80, [30].
[82] Adv. Op. [23], quoting the Court at [140] of the Advisory Opinion.
[83] Above n 80, [31], quoted by Judge Owada, Separate Opinion, [20].
[84] Judge Owada, Separate Opinion, [24].
[85] Judge Buergenthal, Declaration, [1].
[86] Ibid, quoting the Court’s Advisory Opinion in Western Sahara, above n 38, [46] as quoted by the Court itself, Adv. Op. [56].
[87] Ibid.
[88] Ibid, [10].
[89] Ibid.
[90] Ibid.
[91] Above n 61.
[92] Adv. Op. [56], quoting Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, above n 43, referring to Status of Eastern Carelia, above n 61, 28.
[93] In this respect the final sentence of Judge Higgin’s Separate Opinion is of interest:
‘I have nonetheless voted in favour of subparagraphs (3)(A) of the dispositif because there is undoubtedly a significant negative impact upon portions of the population of the West Bank, that cannot be excused on the grounds of military necessity allowed by [the Hague Rules or the Fourth Geneva Convention]; and nor has Israel explained to the United Nations or to this Court why its legitimate security needs can be met only by the route selected.’ Judge Higgins, Separate Opinion, [40] (emphasis added).
[94] Judge Owada, Separate Opinion, [21]; and Judge Buergenthal, Declaration, [10].
[95] On the “privilege” of non-appearance, HWA Thirlway, Non-appearance before the International Court of Justice, (Cambridge University Press, 1985) 64.
[96] Adv. Op. [59].
[97] Ibid, [61]-[62], quoting Legality of the Threat or Use of Nuclear Weapons, above n 40, [16]. See also above page 9 on the Court’s application of the presumption of the validity of the acts of international organisations; see also above, the concerns of Judge Higgins and Judge Kooijmans as to the purpose for which the General Assembly was seeking the Court’s opinion.
[98] Adv. Op. [60].
[99] Ibid, [63].
[100] Ibid, [64].
[101] Ibid, [70]-[76].
[102] Ibid, [78].
[103] Judge Elaraby, Separate Opinion, [3.1].
[104] Adv. Op. [79].
[105] Judge Koojimans, Separate Opinion, [8]-[9].
[106] Adv. Op. [133], drawing on ‘Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine,’ Report of John Dugard, the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967, submitted in accordance with Commission resolution 1993/2A E/CN.4/2004/6 8 September 2003, [9].
[107] Adv. Op. [133], quoting the Report of the Special Rapporteur of the Commission on Human Rights, above n 107, [9]; the Report of the Special Committee to Investigate Israeli Practices Affecting the Rights of the Palestinian People and other Arabs of the Occupied Territories, A/58/311, 22 August 2003, [26]; ‘The Right to Food’, Report by Jean Ziegler, the Special Rapporteur of the United Nations Commission on Human Rights, Addendum, Mission to the Occupied Palestinian Territories E/CN.4/2004/10/Add.2 31 October 2003, [49]; and the Report of the Secretary-General, above n 5, [25].
[108] Ibid, citing much of the same range of reports.
[109] Adv. Op, [133].
[110] Ibid, [129].
[111] Adv. Op. [88], citing the United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, Resolution 2625 (XXV) adopted by the General Assembly on 24 October 1970.
[112] Ibid.
[113] Adv. Op. [115].
[114] Ibid, [118], c.f. Judge Higgins’ view that the Palestinian people are a “peoples” for the purposes of self-determination. Judge Higgins, Separate Opinion, [30].
[11]6 Judge Higgins, Separate Opinion, [29], citing Resolution 2625 (XXV) 1970, above n 112.
115 Adv. Op. [116].
[116] Ibid, [122].
[117] Ibid, [121].
[118] Ibid, [122], read with [75] and [120].
[119] Judge Koroma, Separate Opinion,[2]-[4].
[120] Judge Higgins, Separate Opinion, [30]; Judge Kooijmans, Separate Opinion, [6], [32].
[121] Judge Kooijmans, Separate Opinion, [32]-[33], raising a number of such questions.
[122] Adv. Op. [134] and [120]. See also [125]-[126].
[123] Ibid, [132].
[124] Ibid, [89], quoting the Judgment of the International Military Tribunal of Nuremberg, 30 September and 1 October 1946, 65; and the Legality of the Threat or Use of Nuclear Weapons, above n 40, [75].
[125] Adv. Op. [124].
[126] Ibid, [120].
[127] Ibid, [135].
[128] Ibid, [125]-[126].
[129] Ibid, [124].
[130] Ibid, [91].
[131] Ibid, [92]. Emphasis added.
[132] Ibid, [93].
[133] Ibid, [95].
[134] Ibid, [96].
[135] Ibid, [97].
[136] Ibid, [98].
[137] Ibid, [99].
[138] Ibid, [100], referring to a judgment dated 30 May 2004.
[139] Ibid, [95].
[140] Ibid, [134] and [130].
[141] Ibid, [109], referring to the discussion of the preliminary draft in the Commission on Human Rights, E/CN.4/SR.194, [46], and the Official Records of the General Assembly, Tenth Session, Annexes, A/2929, Part II, Chap. V, [4] (1995).
[142] Emphasis added.
[143] Adv. Op. [110], quoting the Committee’s concluding observations on its 1998 examination of Israel’s current report under the ICCPR. CCPR/C/79. Add. 93, [10].
[144] Adv. Op. [112], quoting the Committee’s dialogue with Israel on its 1998 report under the ICESCR E/C.12/1/Add.90, [15] and [31].
[145] Adv. Op. [112].
[146] Ibid, [113].
[147] Ibid, [109].
[148] Ibid, [127]-[128] and [136].
[149] Ibid, [136], quoting the Human Rights Committee’s General Comment No.27, [14] CCPR/C/21/Rev.1/Add.9.
[150] Emphasis added.
[151] Adv. Op. [136].
[152] Ibid, [102], quoting Annex I to the Report of the Secretary-General, above n 5.
[153] Adv. Op. [105], quoting Legality of the Threat or Use of Nuclear Weapons, above n 40, [24]-[25]. See also [106].
[154] Adv. Op. [106].
[155] Ibid. Legality of the Threat or Use of Nuclear Weapons, above n 40, [24]-[25].
[156] On the right to life as treated by the Court in Legality of the Threat or Use of Nuclear Weapons Advisory Opinion see Foster, above n *.
[157] See Adv. Op. [135] on those questions of military exigency.
[158] See above page 26.
[159] See above text accompanying n 110.
[160] Adv. Op. [122].
[161] Judge Higgins, Separate Opinion, [28].
[162] Judge Higgins, Separate Opinion, [27].
[163] Ibid. [23]-[24].
[164] Judge Higgins, Separate Opinion, [18], citing Legality of the Threat or Use of Nuclear Weapons, above n 40, clause F of the dispositif, 266.
[165] Ibid, [19].
[166] Articles on Responsibility of States for Internationally Wrongful Acts, adopted on 9 August 2001. For text and commentary see James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002, Cambridge University Press).
[167] Adv. Op. [142].
[168] Ibid, [147].
[169] Ibid, [163(3)(A)]. For the text of [163(3)(A)] see text accompanying above n 15.
[17]2 Ibid, [139].
170 Judge Kooijmans, Separate Opinion, [35].
[171] Ibid, [36].
[172] Although the Judge accepted that the Court’s reasoning was consistent with its findings in the Nicaragua case, above n 80, 14 at 103, [195]. Judge Higgins, Separate Opinion, [33], citing R Higgins, Problems and Process: International Law and How we Use It (1994, Oxford University Press) 250-251.
[173] Adv. Op. [34].
[174] Subparagraph 3(A).
[175] Judge Buergenthal, Declaration, [6], citing Thomas Franck, ‘Terrorism and the Rights of Self-Defence’ (2001) 95 AJIL 839-840.
[176] Ibid.
[177] Ibid, [5]-[6].
[178] Ibid, [6].
[179] Ibid, [9].
[180] Case Concerning the Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, (1997) ICJ 7.
[181] Adv. Op. [140], quoting article 25 of the ILC Activities, as quoted in the Gabcikovo case, above n 183.
[182] Ibid.
[183] Above, pages 26, 30.
[184] For the comment of the ILC, see below n 197.
[185] ILC Articles, Chapter V.
[186] ILC Article 21.
[187] ILC Article 25.
[188] ILC Article 20.
[189] ILC Article 23.
[190] ILC Article 24.
[191] ILC Article 22.
[192] c.f. Judge Buergenthal, Declaration, [4], quoting article 21 of the ILC Articles.
[193] The International Law Commission’s formulation on self-defence states that:
‘The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.’ ILC Article 21.
[194] Adv. Op. [140]: ‘the Court will not need to consider that question’. It might be noted that the Commission has said that questions of whether or not a situation of military necessity pertains under international humanitarian law will fall to be determined according to the terms of international humanitarian law rather than those of the doctrine of necessity as found in article 25 of the ILC Articles. Commentary to article 25, [21]. Equally, where an international obligation, such as a rule of international humanitarian law, expressly precludes reliance on necessity, then that will be determinative. Commentary to article 25, [19].
[195] Above.
[196] Above.
[197] Above.
[198] Adv. Op. [163 (3)A]. See above, text accompanying note 15.
[199] Ibid, [163(3)B]. See above, text accompanying note 16.
[200] Ibid, [149].
[201] See above, text accompanying note 17.
[202] Ibid, [152], citing Factory at Chorzow, Merits, Judgment No 13, 1928, PCIJ Series A No 17, 47.
[203] Ibid, [153].
[204] See above, text accompanying note 19. See also [158]-[159].
[205] See above, text accompanying note 18.
[206] Ibid, [161].
[207] Ibid, [162].
[208] Ibid, [162].
[209] Ibid, [155], quoting Barcelona Traction, Light and Power Company, Limited, Second Phases, Judgment, (1970) ICJ 32, [33].
[210] Ibid.
[211] Ibid, [156], citing the Judgment of the Court in East Timor (Portugal v Australia) (1995) ICJ 102, [29]. See also [88].
[212] Ibid, [159].
[213] Ibid, [157], quoting Legality of the Threat or Use of Nuclear Weapons, above n 40, [79].
[214] Judge Higgins, Separate Opinion, [37]-[39].
[215] See also Adv. Op. [36].
[216] Judge Kooijmans, Separate Opinion, [40], quoting article 41 of the International Law Commission’s Articles. See also article 40 of the Articles.
[217] Adv. Op. [41].
[218] Ibid, [42], quoting paragraph 3 of the ILC’s commentary on article 41.
[219] Ibid, [45].
[220] Ibid, [43]-[44].
[221] Judge Kooijmans, Separate Opinion, [1]. See also above, his comments on self-determination.
[222] Ibid, [43]-[44]. See also [50].
[223] Ibid, [33].
[224] Ibid, [46]-[49].
[225] See also the Israeli High Court’s judgment of 30 June 2004 in Beit Sourik v Israel HCJ 2056/04, although the High Court’s decision focused only on the application of international humanitarian law.
[226] Above n 40.
[227] Above n 37.
[228] Judge Higgins, Separate Opinion, [14].
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