Summary
A Judge of the International Court of Justice who sat on the 9 July 2004 Advisory Opinion on the wall and appended a concurring separate opinion elucidating the occupied status of the territories, the significance of the Green Line and the role of negotiations (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, PDF p.5, p.77-79).
Details
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On status: few propositions in international law rest on so long, constant and solid an opinio juris as that Israel’s presence in the West Bank including East Jerusalem and Gaza is military occupation; the Court was right not merely to reiterate that opinio juris but to reach the same conclusion by textual interpretation of the Fourth Geneva Convention, and right to make no enquiry into the territories’ precise prior status, which could matter only if they had been terra nullius — a discredited concept inapplicable to a former mandated territory, where the principles of non-annexation and of the inhabitants’ well-being as a “sacred trust of civilization” continue after the Mandate until self-determination is achieved (PDF p.77-78).
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What prevents fulfilment of Palestinian Self-determination, in his view, is Israel’s prolonged military occupation with its policy of creating faits accomplis on the ground (PDF p.78).
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On the Green Line: it was initially no more than an armistice line, but it “is the starting line from which is measured the extent of Israel’s occupation of non-Israeli territory” (Sir Arthur Watts, quoted PDF p.79); doubts cast on others’ title would work both ways, and Israel’s security would ultimately be assured through stabilizing its legal relationship with the Palestinians, not through constructing walls (PDF p.79).
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On negotiations: they are a means and not an end, the discharge of international obligations including erga omnes obligations cannot be made conditional on them, and good faith requires abstaining from faits accomplis such as the wall that prejudice their outcome (PDF p.79).
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The same opinion is ingested as a standalone ICJ source at Separate opinion of Judge Al-Khasawneh, Wall Advisory Opinion, PDF p.1-5, with its own pagination.
Related pages
International Court of Justice, Green Line, Self-determination, Erga omnes obligations, Fait accompli