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Separate opinion of Judge Elaraby, Wall Advisory Opinion

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aliasesSeparate Opinion of Judge Elaraby

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Summary

The separate opinion of Judge Nabil Elaraby appended to the International Court of Justice Advisory Opinion of 9 July 2004 on the wall, expressing complete and unqualified support for the Court’s findings while elaborating three points the Opinion treated more briefly: the nature and wide scope of the United Nations’ historical and legal responsibility towards Palestine, discharged for five decades without proper regard for the rule of law; the international legal status of the Occupied Palestinian Territory, rooted in the Class A Mandate, the principles of non-annexation and the sacred trust, and Israel’s contractual undertakings under resolution 242, Camp David, Oslo and the Interim Agreement; and the law of belligerent occupation in a prolonged occupation, where military necessity is a principle of limitation, not authorization, the destruction accompanying the wall should in his view have been characterized as grave breaches, and the consequences of impeding the erga omnes right to self-determination should have entered the dispositif (Separate opinion of Judge Elaraby, Wall Advisory Opinion, PDF p.1-14).

What the file is

The standalone ICJ PDF of the separate opinion (General List No. 131), 14 PDF pages, printed p.246-259 as shown in the file from PDF p.3 onward, signed Nabil Elaraby. The supplied text copy carries heavy OCR garbling, especially the headnote on PDF p.1 and scattered names, document symbols and Latin phrases, and PDF p.8 is blank in the text copy; that page was read in the original PDF (printed p.253). 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; this page treats the standalone ICJ file as its own source.

Section by section

  • Opening (PDF p.1): complete and unqualified support for the Court; opinion appended under Statute Article 57; reluctance in referring to Advisory Opinion paragraph 8, and Judge Lachs’s Nicaragua maxim that a judge “is bound to be impartial, objective, detached, disinterested and unbiased” (quoted, I.C.J. Reports 1986, p. 158); three interrelated points announced.
    1. United Nations responsibility (PDF p.1-3): the Court traced this responsibility to the Mandate and Partition Resolution (para. 49, quoted); Elaraby emphasizes it “was discharged for five decades without proper regard for the rule of law”, that no UN organ had ever before asked the Court to clarify Palestine’s legal aspects, and that resolutions remain wholly or partially unfulfilled. Sub-Committee 2 in 1947 (A/AC.14/32 and Add.1, paras. 37-38, 40, quoted) urged an advisory opinion on the Assembly’s competence and on implementation without the Palestinian people’s consent, and warned refusal would confess a determination to settle irrespective of merits; no proposal was adopted, and the Partition Resolution’s own ICJ referral clause was never used. The ES-10/14 request of 8 December 2003 is the first consultation of the Court on any aspect regarding Palestine, a landmark.
  • II, 2.1-2.2 Status and the Mandate (PDF p.4-6): the Mandate is the critical date; Palestine was a Class A Mandate whose people’s existence as an independent nation was provisionally recognized (Covenant Article 22, paras. 1 and 4, quoted), with independence the expected outcome at the Mandate’s end. Sub-Committee 2 concluded the people were ripe for self-government and the Assembly was not competent to recommend any solution other than recognition of Palestine’s independence (report submitted by Sub-Committee 2 to the Ad Hoc Committee on the Palestinian Question in 1947, A/AC.14/32 and Add.1, 11 November 1947, para. 18, with the second passage at para. 15). From South West Africa (1950) and Namibia (1971): non-annexation and the sacred trust are the paramount principles (1950 quotation at I.C.J. Reports 1950, p. 131, emphasis added by Elaraby), applying to all former mandated territories not yet independent, including this territory.
  • 2.3 The Partition Resolution and the transitional period (PDF p.6-7): resolution 181 (II) called for Mandate termination by 1 August 1948, two independent States, and a transitional period; the Jewish State was declared on 14 May 1948, the Palestinian Arab State “has not yet materialized”. On Namibia para. 105, Weeramantry’s East Timor dissent and Certain Expenses (all quoted), Assembly determinations within its competence have legal force; so (a) the United Nations must pursue an independent Palestine and the Assembly’s responsibility does not lapse until then, and (b) the transitional period is a legal nexus carrying Mandate responsibilities to the present, not a legal fiction.
  • 2.4 Israel’s undertakings (PDF p.7-8, p.8 read in the original): resolution 242’s territorial principles — inadmissibility of acquisition of territory by war and withdrawal, territories to be “de-occupied” — reiterated by resolution 338 (1973); then the Camp David Accords of 17 September 1978, the Oslo Accord of 13 September 1993 (Article IV: the West Bank and Gaza Strip treated as a single territorial unit, its integrity to be preserved during the interim period) and the Interim Agreement of 28 September 1995 (Article XXXI(7), no step changing the West Bank and Gaza’s status pending permanent-status negotiations). Israel thereby undertook to withdraw, respect territorial integrity, and refrain from status-changing steps; Elaraby concludes these undertakings were contractual in character and legally binding on Israel (PDF p.8).
  • 2.5 The Disengagement Plan (PDF p.8-9): the Israeli Prime Minister’s letter of 14 April 2004 and attached Disengagement Plan, which provides that West Bank areas including cities, towns and villages will be part of the State of Israel (PDF p.8, read in the original), authoritatively reflect an intention to annex; the wall must be read in that light. The Court’s fait accompli finding (para. 121, quoted) was correct but should have been reflected in the dispositif with an affirmation the territory cannot be annexed and a statement that the letter’s purport breaches Israel’s obligations.
  • III, 3.1 Prolonged occupation (PDF p.9-12): Charter Article 2(4) is jus cogens; resolution 2625 (XXV) and ex injuria jus non oritur; occupation of almost four decades must still be governed fully by occupation law — Greenwood, quoted and shared: no indication international law permits disregarding the Regulations or Convention because occupation has been long. Both peoples have rights to peace and security under resolution 242 para. 1(ii), by the identical humanitarian-law yardstick; Nuclear Weapons para. 78 cardinal principles quoted. Falk and Weston, quoted at length and subscribed to “wholeheartedly”: the illegality of the occupation regime itself set off an escalatory spiral of resistance and repression and grounds a right of resistance; the only viable prescription is to end occupation, as resolution 476 (1980) reaffirmed.
  • 3.2 Military necessity (PDF p.12-13): para. 135 quoted and fully shared; necessity could at most go to building a wall as a security measure, never to the accompanying destruction of homes, infrastructure, land, orchards and olive groves; over 100,000 civilian non-combatants rendered homeless (figure as stated, PDF p.12); exceptions are interpreted strictly; Secretary-General (A/ES-10/248, para. 30), Corfu Channel and Nuclear Weapons para. 79 quoted; Schmitt, adopted: “Military necessity operates within this paradigm to prohibit acts that are not militarily necessary; it is a principle of limitation, not authorization. In its legal sense, military necessity justifies nothing.” (PDF p.13); para. 140 quoted.
  • 3.3 Grave breaches (PDF p.13): Dugard’s and Ziegler’s reports leave no doubt of grave breaches; the destruction is “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” (Fourth Geneva Convention, Art. 147, quoted); the Court should have characterized it as grave breaches, contributing to jus in bello.
  • 3.4 Self-determination and close (PDF p.13-14): paras. 88 and 122 quoted with full support, but the consequences for all States of impeding an erga omnes right should have been in the dispositif. Resolutions 242 and 338 obligations (para. 162 quoted) are synallagmatic obligations of result, not mere obligations of means confined to negotiation; full implementation by both parties is needed for “a just and lasting peace”.

Key passages

  • “The responsibility of the United Nations in this matter also has its origin in the Mandate and the Partition Resolution concerning Palestine” (Court, para. 49, quoted at PDF p.1-2).
  • “Military necessity operates within this paradigm to prohibit acts that are not militarily necessary; it is a principle of limitation, not authorization. In its legal sense, military necessity justifies nothing.” (Schmitt, quoted at PDF p.13)

Evidence the work relies on

The Advisory Opinion itself (paras. 49, 87, 88, 121, 122, 135, 140, 162); the report submitted by Sub-Committee 2 to the Ad Hoc Committee on the Palestinian Question in 1947 (A/AC.14/32 and Add.1, 11 November 1947, paras. 37-38 and 40, and, for the status conclusions at PDF p.5, para. 18 with the second passage at para. 15); the League Covenant and Mandate for Palestine; Court jurisprudence (South West Africa 1950, Certain Expenses 1962, Namibia 1971, Corfu Channel 1949, Nuclear Weapons 1996, East Timor 1995 including Weeramantry’s dissent, Nicaragua 1986 via Lachs); resolutions 181 (II), 242, 338, 476, 2625 (XXV) and ES-10/14; Camp David, Oslo and the Interim Agreement; the Israeli Prime Minister’s 14 April 2004 letter and Disengagement Plan; the Secretary-General’s 24 November 2003 report; Dugard’s and Ziegler’s reports; and Greenwood, Falk and Weston, and Schmitt, all as cited in the reading notes.

Analysis

A concurring, elaborative opinion: it accepts every Court finding and argues the Opinion should have gone further in three places — putting non-annexation in the dispositif, characterizing the destruction as grave breaches, and putting the all-States consequences of impeding self-determination in the dispositif. Its method is historical-legal: status is derived from Mandate and Partition texts and earlier mandate jurisprudence, and present illegality is reinforced by reading the wall together with the contemporaneous Disengagement Plan. Its limits are those it states: it focuses only on resolution 242’s territorial dimension, and its 100,000 homeless figure is asserted without a source in the passage.

Nabil Elaraby, International Court of Justice, UN Security Council, League of Nations, West Bank, Gaza, East Jerusalem, UN General Assembly Resolution 181, UN Security Council Resolution 338, Gaza disengagement plan

Self-determination, Erga omnes obligations, Mandate for Palestine, Fait accompli, Fourth Geneva Convention, Hague Regulations, UN Security Council Resolution 242

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.84-94 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. It concurs where Separate opinion of Judge Higgins, Wall Advisory Opinion hesitates on balance, self-determination and erga omnes, and where Declaration of Judge Buergenthal, Wall Advisory Opinion dissents on the factual basis; Elaraby instead says the Opinion did not go far enough.

Open questions

  • At PDF p.2 the text copy prints the Partition Resolution once as “resolution 118 (II)” and elsewhere, including its footnote, as 181 (II); recorded as printed, not corrected.
  • The text copy garbles several names, document symbols and the Latin maxim ex injuria jus non oritur (printed “ovituv”); quotations on this page were checked against the passages as printed and, for PDF p.8, against the original PDF.
  • Elaraby’s figure of over 100,000 civilian non-combatants rendered homeless (PDF p.12) is given without a cited source in the passage.

Coverage

PDF p.1-14 of 14, read in full

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