Summary
The declaration of Judge Thomas Buergenthal appended to the International Court of Justice Advisory Opinion of 9 July 2004 on the wall, dissenting from the decision to comply with the request and voting against the merits findings — not because the wall raises no serious questions of international law, on which he agrees with much of the Opinion, but because the Court lacked the requisite factual basis for its sweeping findings on the wall as a whole: it never seriously examined the repeated deadly cross-Green Line attacks on Israel proper, or necessity and proportionality segment by segment, and its Article 51 reasoning is formalistic because the Charter does not condition self-defence on an attack by another State (Declaration of Judge Buergenthal, Wall Advisory Opinion, PDF p.1-6).
What the file is
The standalone ICJ PDF of the declaration (General List No. 131), 6 PDF pages, signed Thomas Buergenthal. The supplied text copy is readable with light OCR garbling. The same declaration text is also contained in the appended opinions of Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory; this page treats the standalone ICJ file as its own source.
Section by section
- Para. 1 (PDF p.1): the Court should have exercised its discretion and declined; he dissents from the decision to hear the case, and his negative votes on the other dispositif items do not mean the wall raises no serious legal questions. The governing test is Western Sahara’s: “whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact” (quoted, I.C.J. Reports 1975, pp. 28-29, para. 46); its absence vitiates the merits findings.
- Para. 2 (PDF p.1): he shares the applicability of international humanitarian law, including the Fourth Geneva Convention, and human rights law in the Occupied Palestinian Territory; accepts the wall causes deplorable suffering; and agrees anti-terrorism means must conform to international law.
- Para. 3 (PDF p.1-2): some or even all segments might, on a thorough analysis of all relevant facts, violate international law (see para. 10), but a whole-wall conclusion without examining self-defence, military necessity and security needs in light of the repeated deadly attacks from the territory — barely touched in the UN dossier — is not legally well founded; examining them would have served Palestinian humanitarian needs by giving the Opinion credibility.
- Para. 4 (PDF p.2): the same objection meets the paragraph 122 self-determination finding (quoted); he accepts that right, but a legitimately invoked right of self-defence would preclude wrongfulness, per ILC Article 21 (quoted): “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.”
- Paras. 5-6 (PDF p.2-4): whether self-defence is in play turns on the attacks’ nature and scope and on necessity and Proportionality segment by segment, with topography; some segments might meet the test and others not. The Court instead held Article 51 irrelevant (para. 139, quoted in full). Two problems: Article 51 (quoted in part) 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 (Franck, 2001, cited); and control over the territory of origin is irrelevant — attacks across the Green Line come from territory that is not Israel proper. The Court’s “formalistic approach” avoids the issues at the heart of the case (PDF p.4).
- Para. 7 (PDF p.4-5): paragraph 137 (quoted) says the Court “is not convinced” the chosen course was necessary, but the Opinion adduces harm and law without facts specifically rebutting Israel’s military-exigency and security claims, and barely addresses the Israel-position summaries annexed to the Secretary-General’s report; a Court that “is not convinced” but “fails to demonstrate why it is not convinced” produces conclusions that are “not convincing” (PDF p.5).
- Para. 8 (PDF p.5): Hague Article 46 admits no exception, but Israel’s Annex I arguments (A/ES-10/248, p. 8, quoted in part: “there is no change in ownership of the land; compensation is available for use of land, crop yield or damage to the land; residents can petition the Supreme Court to halt or alter construction”) and its temporary-structure assurance (para. 121) should have been dealt with, though they are not necessarily determinative.
- Para. 9 (PDF p.5-6): Article 49, paragraph 6, of the Fourth Geneva Convention — which bars an Occupying Power from deporting or transferring parts of its own civilian population into the territory it occupies — admits no exceptions, applies to the Israeli settlements in the West Bank, and their existence violates it; wall segments built to protect the settlements are therefore ipso facto in violation of international humanitarian law, and he seriously doubts they would satisfy proportionality given the hardship in and around the enclaves created.
- Para. 10 (PDF p.6): in advisory proceedings, which have no parties, Israel — whose consent was held unnecessary and which was not a party — had no legal obligation to participate or adduce evidence; the burden-of-proof logic of contentious cases does not apply, so the Court could not draw adverse conclusions from Israel’s non-supply of facts or assume its material sufficed for each sweeping conclusion without fully enquiring itself.
Key passages
- “whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character” (Western Sahara, quoted at PDF p.1)
- “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.” (ILC Article 21, quoted at PDF p.2)
Evidence the work relies on
The Advisory Opinion (paras. 121, 122, 137, 139 and the dispositif); Western Sahara para. 46; Charter Article 51; Security Council resolutions 1368 (2001) and 1373 (2001); the ILC Articles on State Responsibility, Article 21; Hague Article 46 and Fourth Geneva Article 49, paragraph 6; the Secretary-General’s report and its Annex I Summary of Israel’s legal position (A/ES-10/248); and Thomas Franck, “Terrorism and the Right of Self-Defense”, American Journal of International Law, Vol. 95, 2001, pp. 839-840, all as cited in the reading notes.
Analysis
A dissent on method and evidence, not a defence of the wall: Buergenthal accepts the applicable law, the suffering, and the settlements’ illegality, and concedes a full record might condemn some or all segments. His claim is institutional — an advisory court that dispenses with a non-party’s consent cannot then treat that party’s absence as proof, and cannot decide necessity and proportionality for a whole route without segment facts. The declaration’s own limit is the mirror of its argument: it assumes, without the same examination it demands, that some segments might pass the necessity and proportionality test.
People, organizations, places and events (links)
Thomas Buergenthal, International Court of Justice, UN Security Council, West Bank, Separation wall
Concepts (links)
Green Line, Proportionality, Fourth Geneva Convention, Hague Regulations, Self-determination
How it relates to other sources
The same declaration is appended in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (PDF p.80-83 of that file). It goes further than Separate opinion of Judge Higgins, Wall Advisory Opinion, who also found the factual material partial and general and the Article 51 reasoning unpersuasive but voted for the dispositif; and it is the counterpoint to Separate opinion of Judge Elaraby, Wall Advisory Opinion, who found the same record sufficient and would have extended the Opinion.
Open questions
- Buergenthal says it is “not inconceivable” some segments meet the necessity and proportionality test (PDF p.2-3) while also holding the facts needed for that judgment are not before the Court; both positions are recorded as he states them, unresolved in the declaration.
Coverage
PDF p.1-6 of 6, read in full