Summary
A Judge of the International Court of Justice who appended a separate opinion to the 9 July 2004 Advisory Opinion on the wall, concurring in its conclusions on jurisdiction, propriety and most merits points while recording serious reservations about how the Court proceeded — in particular its treatment of the underlying bilateral dispute, fairness in the advisory procedure, and the lack of material explaining the Israeli side (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, PDF p.5, p.95-103).
Details
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Judicial propriety should be examined by the Court proprio motu, and not only as whether to comply with a request but as how jurisdiction should be exercised: the existence of a bilateral dispute is no bar, but the critical test is whether giving a reply would circumvent the principle that a State is not obliged to submit its disputes to judicial settlement without its consent, and the Court should offer objective findings of law for the requesting organ rather than adjudicate the dispute’s subject-matter (PDF p.95, p.97-98).
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The analogy to Namibia is in his view too facile: there any dispute was between the United Nations and the State concerned, while here an underlying dispute between Israel and Palestine undeniably exists alongside the matter between the United Nations and Israel; even Western Sahara, the closest case, is not completely analogous (PDF p.97-98).
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On fairness in procedure: the Court’s discretion embraces advisory procedure, including the judge ad hoc question under Rules Article 102 — Israel would in his view have been justified in applying to choose a judge ad hoc, and Palestine’s inability to do the same, not being recognized as a State for Statute purposes, itself raises a fairness question he leaves open (PDF p.99-100).
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On facts: the material on the wall’s humanitarian and socio-economic impact is ample and its reliability not in doubt, but material explaining why and how construction as planned is necessary and appropriate on the Israeli side seems wanting, and the Court’s “not convinced” findings at paragraphs 137 and 140 in effect admit that absence rather than rebut Israel’s arguments; he nevertheless accepts the impacts are so overwhelming that no military-exigencies justification, even if substantiated, could preclude wrongfulness under the stringent Proportionality conditions (PDF p.100-101).
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In his conclusion, the Court should treat the specific question only, without expanding its enquiry into the bigger Middle East peace question including “permanent status”, yet examine it keeping in balance the overall picture that formed the construction’s entire background; that background’s premise is resolution 242’s twin principles, both to be realized side by side, and a finding that the construction impedes the inadmissibility-of-acquisition-by-war principle should be stated in that twin context (PDF p.102).
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Also in his conclusion: the Court could have made an in-depth effort proprio motu to ascertain the validity of Israel’s sole-purpose security argument on facts and law, although that argument, even if true as to motives, would not justify the construction as actually drawn up, which would still breach the Hague Regulations and the Fourth Geneva Convention unless cogent justifications precluded wrongfulness; and the tragic circle of indiscriminate violence by both sides against each other’s innocent civilians is to be condemned and should have been underlined in the Opinion for balance, although it was not expressly part of the specific question (PDF p.102-103).
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The same opinion is ingested as a standalone ICJ source at Separate opinion of Judge Owada, Wall Advisory Opinion, PDF p.1-12, with its own pagination.
Related pages
International Court of Justice, Proportionality, Separation wall