Summary
A Judge of the International Court of Justice who sat on the 9 July 2004 Advisory Opinion on the wall and appended a separate opinion concurring in the dispositif while disagreeing with the Court’s treatment of discretion and balance, its self-determination and self-defence reasoning, and its use of erga omnes (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, PDF p.5, p.57-64).
Details
- On discretion: the attempt to assimilate the case to Namibia is misconceived, because there the Court had already held the mandatory Power’s obligations and no obligations lay on the other side (her text as printed says the obligations lay with “South West Africa” — an apparent slip for South Africa, recorded as printed on the source page under Open questions); the Court’s silence on the Western Sahara object condition “essentially revises, rather than applies, the existing case law”; and the both-parties obligations recalled only at paragraph 162 should have been spelled out and placed in the dispositif (PDF p.57-60).
- On the merits she agrees with the violations actually found — Fourth Geneva Article 49, Hague Articles 46 and 52 and Fourth Geneva Article 53, and ICCPR Article 12 at paragraph 134 — but criticizes the Opinion’s light treatment of humanitarian law, calls the paragraph 122 self-determination finding “a non sequitur”, and rejects the Article 51 reasoning as resting on Nicaragua rather than on Article 51’s text, while agreeing a wall is not self-defence as Article 51 is normally understood and that the route’s necessity and proportionality were not explained (PDF p.61-63).
- On consequences: she does not think the specified consequences in subparagraph (3)(D) “have anything to do with the concept of erga omnes”; non-recognition and non-assistance follow from a competent organ’s determination of illegality, and common Article 1 of the Fourth Geneva Convention is simply a treaty provision (PDF p.63-64).
- On the facts: Israel’s directly provided information was “only very partial” and the Court’s findings general, but the significant negative impact on parts of the West Bank population cannot be excused on military necessity, and Israel has not explained why its security needs can be met only by the route selected (PDF p.64).
Where sources disagree
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Higgins’s account of what the Court found differs in emphasis from the Court’s own summary: she locates the humanitarian-law findings at paragraphs 120 and 132 (PDF p.61), while paragraph 134 also rests a demographic-change contravention on Article 49, paragraph 6; both are kept on the source page under Open questions.
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The same opinion is ingested as a standalone ICJ source at Separate opinion of Judge Higgins, Wall Advisory Opinion, PDF p.1-12, with its own pagination.
Related pages
International Court of Justice, Erga omnes obligations, Proportionality, Separation wall