Summary
A Judge of the International Court of Justice who appended a separate opinion to the 9 July 2004 Advisory Opinion on the wall expressing complete and unqualified support for its findings, and elaborating on the United Nations’ responsibility towards Palestine, the territory’s legal status and the law of belligerent occupation (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, PDF p.5, p.84-94). Opinion paragraph 8 records the Court’s Order of 30 January 2004 that the matters raised by Israel were not such as to preclude him from sitting (PDF p.8, p.84).
Details
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On United Nations responsibility: it was discharged for five decades without proper regard for the rule of law — no organ had ever before requested the Court to clarify the legal aspects of the question of Palestine, although the 1947 Sub-Committee 2 report to the Ad Hoc Committee on the Palestinian Question had urged an advisory opinion and warned refusal would amount to a confession the Assembly meant to settle the problem irrespective of the merits; the ES-10/14 request is therefore a landmark, the first time the Court was consulted on any aspect regarding Palestine (PDF p.84-86).
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On status: Palestine was a class “A” Mandate whose people were provisionally recognized as an independent nation; the principles of non-annexation and of the sacred trust remain valid for the Occupied Palestinian Territory, the Partition Resolution’s “transitional period” is a legal nexus carrying Mandate responsibilities to the present, and the United Nations is under an obligation to pursue the establishment of an independent Palestine (PDF p.86-88).
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On Israel’s undertakings: under resolution 242, the Camp David Accords of 17 September 1978, the Oslo Accord of 13 September 1993 and the Interim Agreement of 28 September 1995, Israel contractually undertook to withdraw, to respect the West Bank and Gaza Strip’s territorial integrity and to take no step changing their status; read in light of the Israeli Prime Minister’s letter of 14 April 2004 and its attached Disengagement Plan, the wall’s construction was in his view conceived with a view to annexing Palestinian territories, and the Court’s fait accompli finding should have been reflected in the dispositif with an affirmation the territory cannot be annexed (PDF p.89-90).
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On belligerent occupation: the law must be fully respected regardless of the occupation’s duration of almost four decades; military necessity is in Professor Michael Schmitt’s words, which he adopts, “a principle of limitation, not authorization. In its legal sense, military necessity justifies nothing.”; the destruction accompanying construction should in his view have been characterized as grave breaches within Fourth Geneva Article 147; and the consequences for all States of impeding the erga omnes right to Self-determination should have been included in the dispositif (PDF p.90-94).
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The same opinion is ingested as a standalone ICJ source at Separate opinion of Judge Elaraby, Wall Advisory Opinion, PDF p.1-14, with its own pagination and the PDF p.8 undertakings list read in the original because that page is blank in its text copy.
Related pages
International Court of Justice, Self-determination, Erga omnes obligations, Fait accompli, Mandate for Palestine