Summary
A Judge of the International Court of Justice who appended a declaration to the 9 July 2004 Advisory Opinion on the wall, dissenting from the decision to comply with the request and voting against every operative paragraph except jurisdiction, on the ground that the Court lacked the requisite factual basis for its sweeping merits findings (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, PDF p.5, p.80-83).
Details
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His dissent is not a defence of the wall: he agrees international humanitarian law, including the Fourth Geneva Convention, and human rights law apply in the Occupied Palestinian Territory and must be faithfully complied with, accepts the wall causes deplorable suffering, and is prepared to assume some or even all segments might on a full factual analysis violate international law (PDF p.80).
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The missing examination, in his view, is of the nature and impact of the repeated deadly cross-Green Line terrorist attacks on Israel proper and of necessity and Proportionality segment by segment; without it the findings are not legally well founded, and the Court’s Article 51 reasoning is formalistic — the Charter does not condition self-defence on an attack by another State, and resolutions 1368 (2001) and 1373 (2001) do not limit self-defence to State actors (PDF p.80-82).
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On evidence: in advisory proceedings, which have no parties, Israel had no obligation to appear or adduce evidence once its consent was held unnecessary, so the Court could not draw adverse conclusions from its failure to supply facts or assume the material before it sufficed (PDF p.83).
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He agrees Fourth Geneva Article 49, paragraph 6, applies to the Israeli settlements in the West Bank and that their existence violates it, so the wall segments built to protect the settlements are ipso facto in violation of international humanitarian law, and he seriously doubts those segments would satisfy proportionality given the hardship in and around the enclaves they create (PDF p.83).
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The same declaration is ingested as a standalone ICJ source at Declaration of Judge Buergenthal, Wall Advisory Opinion, PDF p.1-6, with its own pagination.
Related pages
International Court of Justice, Proportionality, Green Line, Separation wall