Summary
The separate opinion of Judge Awn Al-Khasawneh appended to the International Court of Justice Advisory Opinion of 9 July 2004 on the wall, concurring with the Court’s findings and in general with its reasoning and appending the opinion only to elucidate salient points: the occupied status of the West Bank including East Jerusalem and Gaza rests on a long, constant and solid opinio juris — Security Council and General Assembly resolutions, the High Contracting Parties and the ICRC, States including those friendly to Israel, Israel’s own initial recognition in Order No. 1 of 7 June 1967 and its Supreme Court — which the Court was right not merely to reiterate but to confirm by textual interpretation of the Fourth Geneva Convention, and right not to enquire into the territories’ prior status, which could matter only if they had been terra nullius, a discredited concept incompatible with a former mandated territory where non-annexation and the sacred trust subsist until self-determination is achieved; what prevents that right’s fulfilment is the prolonged occupation with its policy of faits accomplis; the Green Line, though initially only an armistice line, “is the starting line from which is measured the extent of Israel’s occupation of non-Israeli territory” (Sir Arthur Watts, quoted), and doubts about others’ title work both ways; and negotiations are a means, not an end — the discharge of international obligations including erga omnes obligations cannot be made conditional on them, and good faith must be translated into abstaining from faits accomplis such as the wall (Separate opinion of Judge Al-Khasawneh, Wall Advisory Opinion, PDF p.1-5).
What the file is
The standalone ICJ PDF of the separate opinion (General List No. 131), 5 PDF pages, signed Awn Al-Khasawneh. The supplied text copy carries scattered OCR garbling, including the footnote’s resolution number and document symbol on PDF p.2. The same opinion text is also contained in the appended opinions of Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (PDF p.77-79 of that file); this page treats the standalone ICJ file as its own source.
Section by section
- Opening (PDF p.1, para. 1): concurrence with the findings and in general with the reasoning; the opinion’s only aim is to elucidate salient points.
- Occupied status and opinio juris (PDF p.1-2, paras. 2-3): “Few propositions in international law can be said to command an almost universal acceptance and to rest on a long, constant and solid opinio juris as the proposition that Israel’s presence in the Palestinian territory of the West Bank including East Jerusalem and Gaza is one of military occupation governed by the applicable international legal régime of military occupation.” (PDF p.1-2) The very large number of Security Council and General Assembly resolutions, often unanimous or by overwhelming majorities — including binding Council decisions and non-binding resolutions that nevertheless produce legal effects — unfalteringly characterize the territory as occupied, Israel as military occupant, and measure its compliance against humanitarian law’s protective norms.
- The consensus and Israel’s own recognition (PDF p.2, paras. 4-6): the High Contracting Parties and the International Committee of the Red Cross “have retained their consensus that the convention”, the Fourth Geneva Convention of 12 August 1949, “does apply de jure to the occupied territories” (Secretary-General’s report, footnoted, symbol garbled in the text copy). States individually and in groups, including States friendly to Israel, take the same position. France’s Written Statement, quoted: “Israel initially recognized the applicability of the Fourth Convention: according to Article 35 of Order No. 1, issued by the occupying authorities on 7 June 1967 [translation by the Registry], ‘[t]he Military Court … must apply the provisions of the Geneva Convention dated 12 August 1949, Relative to the Protection of Civilians in Time of War, with respect to judicial procedures. In case of conflict between this Order and said Convention, the Convention shall prevail …’” (PDF p.2). More recently Israel’s Supreme Court has confirmed the Convention’s applicability to those territories.
- The Court’s course and prior status (PDF p.2-3, paras. 7-9): whilst “that consistent record of the international community’s opinio juris cannot just be swept aside and ignored” (Sir Arthur Watts, quoted), the Court did not simply reiterate it but reached similar conclusions mainly by textual interpretation of the Convention (Opinion paras. 86-101), holding at para. 101 (quoted in full in the reading notes) that the Convention applies in the Palestinian territories east of the Green Line occupied in 1967, “there being no need for any enquiry into the precise prior status of those territories”. That was a wise course: prior status would make no difference except if the territories were terra nullius when occupied — a discredited concept of no contemporary application, incompatible with a former mandatory territory, regarding which “two principles were considered to be of paramount importance: the principle of non-annexation and the principle that the well-being and development of … peoples [not yet able to govern themselves] form[ed]” a sacred trust of civilization (International Status of South West Africa, I.C.J. Reports 1950, p. 131, quoted, PDF p.3). Whatever the merits of the Jordanian title in the West Bank — Jordan would argue it was valid and internationally recognized, and that it severed its legal ties in favour of Palestinian self-determination — what prevents self-determination from being fulfilled is Israel’s prolonged military occupation with its policy of creating faits accomplis on the ground; the principle of non-annexation is not extinguished with the end of the Mandate but subsists until self-determination is realized.
- The Green Line (PDF p.4, paras. 10-11): the line was initially no more than an armistice line, its agreement stipulating no prejudice to an ultimate political settlement or to future territorial settlements, boundary lines or claims (Opinion para. 72, quoted). It is not without irony that prominent Israeli jurists argued before the 1967 war that the General Armistice agreements were sui generis, more than mere armistice agreements, unchangeable except with the Security Council’s acceptance. Two facts are indisputable: (1) the Green Line, to quote Sir Arthur Watts, “is the starting line from which is measured the extent of Israel’s occupation of non-Israeli territory” (CR 2004/3, p. 64, para. 35, quoted), with no implication it is a permanent frontier; (2) attempts to denigrate its significance work both ways — Israel cannot shed doubts on others’ title without its own title, and its territorial expanse beyond the partition resolution, being called into question. Ultimately Israel’s security would be assured through stabilizing its legal relationship with the Palestinians, not through constructing walls.
- Negotiations and good faith (PDF p.4-5, paras. 12-13): the Court’s close (Opinion para. 162, quoted) — the tragic situation can end “only through implementation in good faith” of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973), and the Roadmap approved by resolution 1515 (2003) is the most recent effort to initiate negotiations — is right as far as it goes, and negotiations have produced defensible, durable peace agreements; but negotiations are a means to an end and cannot replace that end. “The discharge of international obligations including erga omnes obligations cannot be made conditional upon negotiations.” (PDF p.4-5) It is doubtful, given the Roadmap’s conditions of acceptance, whether the meeting of minds for mutual and reciprocal obligations exists; if negotiations are not to produce non-principled solutions they must be grounded in law, and good faith translated into concrete steps by abstaining from faits accomplis on the ground such as the wall, which cannot but prejudice their outcome.
Key passages
- “Few propositions in international law can be said to command an almost universal acceptance and to rest on a long, constant and solid opinio juris as the proposition that Israel’s presence in the Palestinian territory of the West Bank including East Jerusalem and Gaza is one of military occupation governed by the applicable international legal régime of military occupation.” (PDF p.1-2)
- “The discharge of international obligations including erga omnes obligations cannot be made conditional upon negotiations.” (PDF p.4-5)
Evidence the work relies on
The Advisory Opinion itself (paras. 72, 86-101, 101, 162); the body of Security Council and General Assembly resolutions characterizing the territories as occupied; the stated consensus of the High Contracting Parties to the Fourth Geneva Convention and of the ICRC (via the Secretary-General’s report prepared pursuant to General Assembly resolution ES-10/2 of 25 April 1997, para. 21, as footnoted); France’s Written Statement quoting Article 35 of Israel’s Order No. 1 of 7 June 1967; the Israeli Supreme Court’s recent confirmation (no decision named in the passage); Sir Arthur Watts’s oral pleading (CR 2004/3, p. 64, paras. 34-35); International Status of South West Africa (I.C.J. Reports 1950, p. 131); the 1949 General Armistice Agreement language quoted at Opinion para. 72; and resolutions 242, 338 and 1515 (2003) and the Roadmap, all as cited in the reading notes.
Analysis
A short elucidating concurrence that reverses the main Opinion’s argumentative order: where the Court treated opinio juris as confirmatory of a textual reading, Al-Khasawneh makes the opinio juris the foundation and the textual reading the confirmation, and he draws from the Mandate principles a continuing non-annexation rule that runs until self-determination is achieved. His two operative additions are the Green Line measure — occupation is measured from the line whatever its final status — with the both-ways warning on title, and the subordination of negotiations to obligations: negotiation is the route to implementation, not a condition on the discharge of obligations, and good faith is made concrete as abstention from faits accomplis. The opinion asserts the Supreme Court confirmation and the Jordanian argument without naming a decision or a Jordanian source in the passages; those points are recorded as he states them.
People, organizations, places and events (links)
Awn Al-Khasawneh, International Court of Justice, West Bank, East Jerusalem, Gaza, Green Line, Israeli Supreme Court, UN Security Council
Concepts (links)
Self-determination, Erga omnes obligations, Fait accompli, Fourth Geneva Convention, Mandate for Palestine, UN Security Council Resolution 242, UN Security Council Resolution 338
How it relates to other sources
The same opinion is appended in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (PDF p.77-79 of that file), whose source page records the same arguments; this standalone file adds nothing new in substance and differs only in presentation and pagination. His opinio juris grounding answers, in the opposite direction, the same prior-status omission Separate opinion of Judge Kooijmans, Wall Advisory Opinion criticizes as two-dimensional history: Kooijmans shows the Jordanian-sovereignty fact strengthens applicability as a matter of the Convention’s definition, Al-Khasawneh holds the enquiry unnecessary because only terra nullius could have mattered. With Separate opinion of Judge Elaraby, Wall Advisory Opinion he presses beyond the majority’s restraint, and against Separate opinion of Judge Higgins, Wall Advisory Opinion and Kooijmans he treats erga omnes obligations as unconditionally owed, not as a contested route to consequences.
Open questions
- The footnote at PDF p.2 gives the Secretary-General’s report’s resolution number and document symbol in garbled form in the text copy (“ES-1012”, “Al165-1016-SlI9971494” as printed); the passage’s sense — a report pursuant to the 25 April 1997 resolution, para. 21 — is recorded in the reading notes without correcting the symbols.
- Para. 9’s statement that the principle of non-annexation “subsists until it is realized” leaves the pronoun’s referent — the principle, or self-determination in the preceding sentence — to the sentence’s construction; the source page records it as self-determination, following the sentence’s subject matter, and notes the ambiguity here.
- The Israeli Supreme Court confirmation of the Fourth Geneva Convention’s applicability (para. 6) is stated without naming a decision.
Coverage
PDF p.1-5 of 5, read in full