Summary
The separate opinion of Judge Rosalyn Higgins appended to the International Court of Justice Advisory Opinion of 9 July 2004 on the wall: she concurs in the dispositif and agrees with the humanitarian-law violations actually found, but dissents from much of the reasoning — the Court is silent on the Western Sahara object condition and thereby revises rather than applies the case law, the Opinion is unbalanced because the both-parties obligations in resolution 242 through resolution 1515 were recalled only at paragraph 162 and not placed in the dispositif, the paragraph 122 self-determination finding is “a non sequitur”, the Article 51 self-defence reasoning rests on Nicaragua rather than the Charter text, the legal consequences in subparagraph (3)(D) have nothing to do with erga omnes, and the factual findings are general, with no section-by-section application (Separate opinion of Judge Higgins, Wall Advisory Opinion, PDF p.1-12).
What the file is
The standalone ICJ PDF of the separate opinion (General List No. 131), 12 PDF pages, printed p.207-218 as shown in the file from PDF p.2 onward, signed Rosalyn Higgins. The supplied text copy carries OCR garbling of names and document symbols. 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
- Para. 1 (PDF p.1): agreement on jurisdiction, paras. 14-42.
- Paras. 2-6, the Namibia analogy (PDF p.1-2): discretion is harder than the Court suggests; assimilation to Namibia is misconceived because three earlier Opinions had already fixed the mandatory Power’s obligations and no obligations lay on SWAPO, whereas here only the General Assembly has pronounced, no court has classified one party alone as wrongdoer, and resolutions 242 and 1515 attest obligations on both sides; counsel’s “one State - Israel - and the United Nations” framing (CR 2004/3, quoted) serves to avoid the dispute criteria; the mandate-termination conundrum at the heart of Namibia has no analogy here.
- Paras. 7-13, consent and Western Sahara (PDF p.2-4): there is a dispute between two international actors, Israel and Palestine as invited participant, which alone does not bar an opinion; Western Sahara kept consent relevant to propriety (quoted, paras. 32-33), and one condition was that the Assembly’s object was not to obtain an Opinion to later exercise powers over the dispute (quoted, para. 39); here “it is the reverse circumstance that obtains”, participants frankly said so, and the Court’s silence “essentially revises, rather than applies, the existing case law” (PDF p.4).
- Paras. 14-20, balance (PDF p.4-6): pronouncing on one element of a multifaceted dispute is inherently awkward; humanitarian obligations are absolute, but context matters for other law; the Court’s para. 54 promise to take the greater whole into account is never performed and the history at paras. 71-76 is neither balanced nor satisfactory. A balanced Opinion would spell out both parties’ requirements from resolution 242 to resolution 1515 (2003) — Israel entitled to exist, be recognized and have security; the Palestinian people entitled to their territory, self-determination and their own State, to be secured by negotiation — plus the procedural obligation to move simultaneously, all in the dispositif, as with Nuclear Weapons operative clause F; civilian protection binds those seeking liberation equally. Her vote for subparagraph (2) was made “with considerable hesitation” (PDF p.6).
- Paras. 21-27, humanitarian and human rights law (PDF p.6-7): the Court found violations only of Fourth Geneva Article 49 (para. 120) and Hague Articles 46 and 52 and Fourth Geneva Article 53 (para. 132) — findings she agrees with — despite the many provisions invoked by Palestine, other participants and the Special Rapporteur (listed); its treatment is light, shows only violated provisions, and mixes humanitarian and human rights law. She agrees on human rights law’s continued relevance and ICCPR Article 12 (para. 134), but notes the treaty bodies’ detailed monitoring role and the single-phrase ICESCR treatment at para. 134 (quoted).
- Paras. 28-31, self-determination (PDF p.8-9): para. 122 “appears to me to be a non sequitur” (PDF p.8); she approves the post-colonial principle (2625 (XXV); resolutions 3236 (XXIX) and, as printed, 2144 (XXV) of 1987) but not its application — the real impediment is both sides’ unwillingness to move in parallel, the Palestinians would not have exercised the right even without the wall, and occupied territory is no more or less occupied because a wall runs through it.
- Paras. 32-35, self-defence (PDF p.9-10): Article 51’s text does not confine self-defence to an armed attack by one State against another; that comes from Nicaragua para. 195 (quoted), to which she maintains reservations (her Problems and Process, pp. 250-251). The occupied-origin argument is “formalism of an unevenhanded sort” (PDF p.9). She still concurs because a wall is a non-forcible measure not within Article 51 as normally understood, and in any event the route’s necessity and proportionality were not explained.
- Paras. 36-39, erga omnes (PDF p.10-11): subparagraph (3)(D)‘s consequences do not rest on erga omnes; Barcelona Traction para. 33 concerned locus standi and the ILC Commentary speaks of a legal interest in protection, not substantive third-party obligations. Non-recognition and non-assistance follow from a competent organ’s binding determination of illegality (Namibia paras. 115, 117, quoted; Haya de la Torre), and here from the Court’s own finding; humanitarian principles bind as customary law, and common Article 1 is a treaty provision (Pictet Commentary, p. 16, quoted).
- Para. 40, facts (PDF p.11-12): Israel’s direct information was “only very partial”; the Court relied largely on the Secretary-General’s report of 14 April 2002 to 20 November 2003 and the UN Written Statement, and its findings are general with little section-by-section application; other useful material existed (Special Rapporteur’s Third Report and Israel’s Reply, E/CN.4/2004/6/Add.1; HEPG March 2004 update). She voted for subparagraph (3)(A) because the significant negative impact on parts of the West Bank population cannot be excused on military necessity and Israel never explained why its security needs could be met only by the chosen route.
Key passages
- “In the present case it is the reverse circumstance that obtains.” (PDF p.4)
- “Military necessity” is not quoted by Higgins as a freestanding maxim; her closing ground is that the impact “cannot be excused on the grounds of military necessity allowed by those Conventions” (PDF p.12).
- “A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence.” (Namibia, para. 117, quoted at PDF p.10-11)
Evidence the work relies on
The Advisory Opinion (paras. 14-42, 44-64, 71-76, 78-79, 118, 120-122, 132, 134, 139-140, 154-159, 162 and the dispositif); the South West Africa Opinions of 1950, 1955 and 1956, Certain Expenses (1962), Namibia (1971), Western Sahara (1975), Status of Eastern Carelia (1923), Interpretation of Peace Treaties (1950), Nuclear Weapons (1996), Barcelona Traction (1970), Haya de la Torre (1951) and Nicaragua (1986); resolutions ES-10/13, ES-10/14, 242, 1515, 2625 (XXV), 3236 (XXIX) and the citation printed as 2144 (XXV) of 1987; the two Covenants; the ILC Articles on State Responsibility and Commentary; the Pictet Commentary; participants’ pleadings (CR 2004/3); and the Secretary-General’s report, the Special Rapporteur’s Third Report with Israel’s Reply, and the HEPG March 2004 update, all as cited in the reading notes.
Analysis
A concurrence in result that is a methodical critique of reasoning: propriety, balance, and the proper bases of consequences. Higgins would keep humanitarian-law findings narrow and specific, ground third-State duties in determinations of illegality rather than erga omnes, and treat self-determination and self-defence as questions about both parties’ parallel obligations. Her stated limits are factual — the material was partial and general — which she says did not defeat the (3)(A) vote because the route was never explained.
People, organizations, places and events (links)
Rosalyn Higgins, International Court of Justice, UN Security Council, West Bank, Separation wall
Concepts (links)
Self-determination, Erga omnes obligations, Proportionality, Fourth Geneva Convention, Hague Regulations, UN Security Council Resolution 242, UN Security Council Resolution 1515
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.57-64 of that file). It contrasts with Separate opinion of Judge Elaraby, Wall Advisory Opinion, who would extend the Opinion’s dispositif, and stops short of Declaration of Judge Buergenthal, Wall Advisory Opinion, who would have declined the request altogether for want of facts: Higgins finds the facts general but sufficient for the violations she accepts.
Open questions
- Para. 2 as printed in the text copy assigns all the legal obligations as mandatory Power to “South West Africa”, where South Africa was the mandatory Power; recorded as printed.
- Para. 29 cites “General Assembly resolution 2144 (XXV) of 1987 (Afghanistan)” as printed; the session number and year do not correspond in the file’s own usage elsewhere, and the file does not reconcile them.
- Higgins locates the Court’s humanitarian-law findings at paras. 120 and 132, while the Court’s summary at para. 134 also rests a demographic-change contravention on Article 49, paragraph 6; both accounts are kept, as on the main Opinion’s source page.
Coverage
PDF p.1-12 of 12, read in full