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Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

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aliasesICJ Wall Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, A/ES-10/273

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Summary

The Advisory Opinion of the International Court of Justice of 9 July 2004 (General List No. 131), transmitted to the General Assembly by the Secretary-General as document A/ES-10/273 on 13 July 2004, answering the question put by resolution ES-10/14 of 8 December 2003 on the legal consequences of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem. Part 1 (PDF p.1-35, paragraphs 1-109) covers the Court’s jurisdiction and its reasons for finding no compelling reason to decline, the scope of the question, the historical background and occupied status of the territory east of the Green Line, the Court’s description of the wall and its associated “Closed Area” régime on the report of the Secretary-General, and the start of applicable law: the Charter prohibition on acquisition of territory by force, self-determination as a right erga omnes, the Hague Regulations as customary law, and the Court’s finding that the Fourth Geneva Convention is applicable de jure in the Palestinian territories occupied in 1967, before the human rights covenants’ applicability analysis. Part 2 (PDF p.36-68, paragraphs 109-163 and the start of the appended separate opinions) completes that analysis for the ICCPR, the ICESCR and the Convention on the Rights of the Child, finds the settlements established in breach of international law and the wall’s route a breach of Israel’s obligation to respect Palestinian self-determination, finds breaches of the Hague Regulations, the Fourth Geneva Convention and both Covenants on the evidence of the rapporteurs and the Secretary-General, rejects military exigencies, derogation, Article 51 self-defence and necessity as justifications, states the legal consequences for Israel, for all States and for the United Nations, and gives the operative reply by 14 votes to 1 (13 to 2 on consequences for other States), before the separate opinions of Judges Koroma and Higgins in full and the start of Judge Kooijmans’s separate opinion. Part 3 (PDF p.69-101) completes Judge Kooijmans’s separate opinion, and reads in full the separate opinions of Judges Al-Khasawneh and Elaraby and Judge Buergenthal’s declaration, and Judge Owada’s separate opinion through paragraph 26 as far as PDF p.101. Part 4 (PDF p.102-103) completes Judge Owada’s separate opinion (paragraphs 27-31): the Court should treat the specific question only, yet examine it keeping in balance the overall picture; resolution 242’s twin principles form the basis of peace and both would have to be realized side by side; the Court could have made an in-depth effort proprio motu to ascertain the validity of Israel’s security argument, although that argument, even if true as to motives, would not justify the construction as actually drawn up; and the tragic circle of indiscriminate violence perpetrated by both sides against each other’s innocent civilian population is to be condemned, a factor he would have underlined for balance (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, PDF p.1-103).

What the file is

United Nations document A/ES-10/273, Distr.: General, 13 July 2004, Original: English and French, 103 PDF pages, about 60,086 words in the supplied text copy (59,918 words counted in the text copy as saved). The file consists of the Secretary-General’s one-page transmittal note (PDF p.1), a three-page headnote summarizing the whole Opinion (PDF p.2-4), the Advisory Opinion itself beginning at PDF p.5, and the separate opinions and declaration the transmittal note says are appended, of which part 2 reads those of Judges Koroma and Higgins in full and Judge Kooijmans’s through paragraph 16, part 3 completes Judge Kooijmans’s opinion, reads those of Judges Al-Khasawneh and Elaraby and Judge Buergenthal’s declaration in full, and reads Judge Owada’s through paragraph 26 as far as PDF p.101, and part 4 completes Judge Owada’s opinion (paragraphs 27-31, PDF p.102-103), ending with his signature on the file’s last page. The Opinion’s text copy is clean, with page markers for each PDF page; a special character in the headnote renders as a box glyph before some Article citations (PDF p.2-3). Two date statements as printed conflict inside the file and are held in Open questions: paragraph 5 gives the Registrar’s letters as “19 December 2004” for an Order of 19 December 2003, and paragraph 21 dates the adoption of resolution ES-10/13 to 27 October 2003 while the reproduced resolution ES-10/14 reaffirms “its resolution ES-10/13 of 21 October 2003” (PDF p.5, p.12).

Section by section

  • Note by the Secretary-General (PDF p.1). At the 23rd meeting of its tenth emergency special session, on 8 December 2003, the General Assembly by resolution ES-10/14 decided under Charter Article 96(1) to request the Court urgently to render an advisory opinion on the question quoted in the Summary above and in paragraph 1; the Court delivered its opinion on 9 July 2004, the Secretary-General received the signed and sealed copy on 13 July 2004, and transmits the opinion “as well as the separate opinions and the declaration appended thereto”.

  • Headnote (PDF p.2-4). A summary of the entire Opinion, not part of the Opinion text: jurisdiction upheld against the ultra vires (Charter Articles 12(1) and 24), Uniting for Peace procedure, clarity, abstractness and political-character objections; no “compelling reason” to decline in discretion; scope limited to parts of the wall in the Occupied Palestinian Territory; settlements in breach of international law, the wall and its associated régime creating a “fait accompli” at risk of de facto annexation and severely impeding Palestinian self-determination; breaches of humanitarian and human rights provisions not justified by military exigencies; Article 51 self-defence and necessity held not relevant / not satisfied; consequences stated for Israel (cessation, dismantling, repeal, reparation), for other States (non-recognition, no aid or assistance, ensuring compliance with the Fourth Geneva Convention) and for the United Nations. These holdings are recorded here as the headnote presents them; the Opinion’s own reasoning for them is in paragraphs not read until later parts, except where part 1 reaches it.

  • Procedure (paras. 1-12, PDF p.5-10). Paragraph 1 reproduces resolution ES-10/14 in full: it reaffirms ES-10/13, recalls resolution 181 (II) of 29 November 1947 and Security Council resolutions 242 (1967), 338 (1973), 267 (1969), 298 (1971), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 904 (1994), 1073 (1996), 1397 (2002) and 1515 (2003), reaffirms the applicability of the Fourth Geneva Convention and Additional Protocol I, recalls the Hague Regulations, welcomes the Conferences of High Contracting Parties of 15 July 1999 and 5 December 2001, records settlements as illegal and actions changing East Jerusalem’s status as null and void, and expresses grave concern at the wall’s departure from the Armistice Line of 1949 (Green Line), confiscation and destruction of Palestinian land and de facto annexation. The Secretary-General’s report under ES-10/13 (A/ES-10/248, 24 November 2003) was enclosed with the request. Order of 19 December 2003: written statements by 30 January 2004 from the United Nations and its Member States, and from Palestine, given its observer status and co-sponsorship of the draft; hearings to open 23 February 2004, Palestine also taking part. League of Arab States and Organization of the Islamic Conference were admitted on the same terms (para. 6). Order of 30 January 2004: the matters raised by Israel were “not such as to preclude Judge Elaraby from sitting” (para. 8). Written statements were filed by 49 listed States and entities, in the order of receipt given in paragraph 9, from Guinea to the Democratic People’s Republic of Korea; hearings were held 23-25 February 2004, with oral statements by Palestine, South Africa, Algeria, Saudi Arabia, Bangladesh, Belize, Cuba, Indonesia, Jordan, Madagascar, Malaysia, Senegal, Sudan, the League of Arab States and the Organization of the Islamic Conference, with their representatives and counsel named in paragraph 12.

  • Jurisdiction — competence and events (paras. 13-23, PDF p.10-13). The Court first considers jurisdiction, then any reason to decline (para. 13, citing the Nuclear Weapons opinion). Competence rests on Statute Article 65(1) and Charter Article 96(1): “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.” (para. 15). The question falls within the Assembly’s activities under Charter Articles 10 and 11(2) (paras. 16-17). Events (paras. 18-23): the Tenth Emergency Special Session was first convened after the Security Council’s rejection on 7 and 21 March 1997, by a permanent member’s negative votes, of two drafts on Israeli settlements; the Arab Group’s letter of 31 March 1997 requested a session under resolution 377 A (V) (“Uniting for Peace”); resolution ES-10/2 of 25 April 1997 held Israel’s repeated violations a threat to international peace and security; the session was reconvened 11 times, last on 8 December 2003. On 14 October 2003 a draft condemning the wall was not adopted owing to a permanent member’s negative vote (Council meetings 4841-4842); the session resumed on 20 October 2003 and adopted ES-10/13 demanding Israel “stop and reverse the construction of the wall” (para. 21, dated as printed — see Open questions); Security Council resolution 1515 (2003) of 19 November 2003 endorsed the Quartet “Roadmap” and contained no provision on the wall (para. 22); ES-10/14 was adopted on 8 December 2003 (para. 23).

  • Jurisdiction — Article 12 and Uniting for Peace (paras. 24-35, PDF p.13-16). A request for an advisory opinion is not itself a “recommendation” under Charter Article 12(1), quoted in paragraph 25. Article 24 gives the Council “primary responsibility”, which is primary, not necessarily exclusive (Certain Expenses, I.C.J. Reports 1962, p.163; Assembly power under Article 14). United Nations practice on Article 12 evolved from the early strict reading (Indonesia, 1949; Council deletions for Spain, Greece, Taiwan/Formosa and Korea) to parallel dealing by both organs (Congo, 1961; Portuguese colonies, 1963; later Cyprus, South Africa, Angola, Southern Rhodesia, Bosnia and Herzegovina and Somalia), with “is exercising the functions” read by the Legal Counsel as “is exercising the functions at this moment”; the accepted evolved practice “is consistent with Article 12, paragraph 1”, and the Assembly “did not exceed its competence” (paras. 27-28). On resolution 377 A (V): its two conditions — Council failure through lack of unanimity, and an apparent threat to the peace — were fulfilled in 1997 and again at the reconvening of 20 October 2003 after the 14 October 2003 negative vote, and the situation had not changed by 8 December 2003, the Council having neither discussed the wall’s construction nor adopted a resolution on it (para. 31); the Assembly could adopt any resolution within the session’s subject-matter, including this request, and it is irrelevant that no proposal had been made to the Council to request an opinion itself (para. 32). The session’s “rolling character” is irrelevant (the Seventh Emergency Special Session precedent), simultaneity with the regular session violates no identified rule, and a resolution of a properly constituted organ “must be presumed to have been validly adopted” (Namibia opinion, para. 20, quoted para. 35).

  • Jurisdiction — legal question (paras. 36-42, PDF p.16-18). Against the contentions that “legal consequences” is too unclear and abstract and the question political: the question is “framed in terms of law and raise[s] problems of international law” (Western Sahara, para. 15) and is a legal question (para. 37); lack of clarity requires interpretation, which the Court has often given, its task being to “identify the existing principles and rules, interpret them and apply them” (Nuclear Weapons, para. 13, quoted para. 38); asking for “legal consequences” necessarily encompasses assessing whether the construction breaches the rules cited (para. 39); “the Court may give an advisory opinion on any legal question, abstract or otherwise” (Nuclear Weapons, para. 15, quoted para. 40), this question is not abstract, and the Court will determine for whom consequences arise; political aspects, motives and implications do not deprive a legal question of its character or the Court of its competence (para. 41). Paragraph 42: “The Court accordingly has jurisdiction to give the advisory opinion requested by resolution ES-10/14”.

  • Discretion (paras. 43-65, PDF p.19-24). Statute Article 65(1) (“may give”) gives a discretionary power, but a reply “represents its participation in the activities of the Organization, and, in principle, should not be refused” (Interpretation of Peace Treaties, 1950), and only “compelling reasons” should lead the Court to refuse (Certain Expenses); the present Court has never declined on discretion, and the Permanent Court did so only in Eastern Carelia on very particular circumstances (para. 44). Consent: lack of a State’s consent to contentious jurisdiction “has no bearing” on advisory jurisdiction, because an advisory reply has no binding force and “no State … can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable” (Interpretation of Peace Treaties, p.71, quoted para. 47); lack of consent could ground refusal only if replying would circumvent the consent principle (Western Sahara, paras. 32-33). Here the subject-matter “can[not] be regarded as only a bilateral matter between Israel and Palestine” — the wall “must be deemed to be directly of concern to the United Nations”, whose responsibility originates in the Mandate and the Partition Resolution and is described in resolution 57/107 as “a permanent responsibility towards the question of Palestine” (paras. 49-50). Negotiated solution: what influence the opinion might have on the Roadmap negotiations is unclear and participants differed; “The Court cannot regard this factor as a compelling reason” (para. 53); that the wall is only one aspect of the conflict is likewise no reason (para. 54). Facts: the test is whether the Court has “sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact” (Western Sahara, para. 46); it has the Secretary-General’s report, his voluminous dossier including on-site reports by special rapporteurs and United Nations organs, his updating written statement, other participants’ statements, and Israel’s written statement with annexes on security (paras. 56-58). Useful purpose: “it is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly” (Nuclear Weapons, para. 16, quoted para. 61), and the Assembly has not yet determined all consequences of its own resolution (para. 62). “Clean hands”: Israel’s invocation of “nullus commodum capere potest de sua injuria propria” for Palestine is “not pertinent”, because the Assembly requested the opinion and it is given to the Assembly, “not to a specific State or entity” (paras. 63-64). Paragraph 65: no compelling reason to decline.

  • Scope and order of analysis (paras. 66-69, PDF p.24-25). The Court uses the Assembly’s term “wall” because the construction is a complex (para. 82) and Israel’s “fence” and the Secretary-General’s “barrier” are no more accurate in the physical sense (para. 67). Parts built or planned on Israel’s own territory are outside the request (para. 67). To state consequences the Court must first determine whether the construction breaches international law (para. 68), proceeding by the territory’s status, a description of the works, the applicable law, and whether that law has been breached (para. 69).

  • Historical background and status of the territory (paras. 70-78, PDF p.25-27). Palestine was part of the Ottoman Empire; a class “A” Mandate was entrusted to Great Britain under Covenant Article 22(4), the Mandate being “a sacred trust of civilization” created “in the interest of the inhabitants of the territory, and of humanity in general” (International Status of South West Africa, pp.131-132, quoted para. 70), its eastern boundary laid down by the British memorandum of 16 September 1922 and the Anglo-Transjordanian Treaty of 20 February 1928. The United Kingdom advanced its evacuation to 15 May 1948; resolution 181 (II) of 29 November 1947 recommended the Plan of Partition into two independent States, one Arab, the other Jewish, with a special international régime for Jerusalem; the Arab population and Arab States rejected it, Israel proclaimed independence on 14 May 1948 “on the strength of the General Assembly resolution”, and the Plan was not implemented (para. 71). The 1949 Israel-Jordan Armistice Agreement (Rhodes, 3 April 1949) fixed the Armistice Demarcation Line — the “Green Line” — in Articles V and VI, without prejudice to future territorial settlements or boundary lines (para. 72). In 1967 Israeli forces occupied all the territories that had constituted Mandate Palestine, including the West Bank (para. 73); resolution 242 (1967) emphasized the inadmissibility of acquisition of territory by war and called for withdrawal (para. 74). Security Council resolutions 298 (1971) and 478 (1980) held Israel’s measures changing Jerusalem’s status “totally invalid” and the 1980 Basic Law’s enactment a violation of international law, its measures “null and void” (para. 75). The 1994 Israel-Jordan treaty fixed their boundary without prejudice to the status of territories under Israeli military government control in 1967 (para. 76); the post-1993 Israel-PLO transfers of powers “remained partial and limited” (para. 77). Under customary law as reflected in Hague Regulation Article 42 the territories between the Green Line and the Mandate’s former eastern boundary were occupied by Israel in 1967, and: “All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.” (para. 78).

  • Description of the wall (paras. 79-85, PDF p.27-29). From the Secretary-General’s report and his supplementing written statement: Israel considered plans since 1996; a plan was first approved in July 2001; Cabinet decisions of 14 April 2002 (works of 80 kilometres in three areas), 23 June 2002 (first phase), 14 August 2002 (Phase A line, 123 kilometres, Salem to Elkana) and December 2002 (Phase B, some 40 kilometres) led to the full route approved 1 October 2003, which will form one continuous line stretching 720 kilometres along the West Bank (para. 80). Phase A, ultimately 150 kilometres, was declared completed on 31 July 2003, encompassing approximately 56,000 Palestinians in enclaves, with 19.5 kilometres around Jerusalem; Phase C stage C2 would surround the “Ariel Salient”, cutting 22 kilometres into the West Bank and incorporating 52,000 Israeli settlers, and stage C3’s two “depth barriers” would form enclaves encompassing 72,000 Palestinians in 24 communities; as at 25 January 2004 some 190 kilometres had been completed, Phase D had not begun, and in February 2004 an 8-kilometre section near Baqa al-Sharqiya was demolished (para. 81). The complex consists of an electronic-sensor fence, a ditch up to 4 metres deep, a two-lane patrol road, a trace road and six coils of barbed wire, 50 to 70 metres wide, up to 100 metres in places, with some 8.5 kilometres of concrete wall in the approximately 180 kilometres completed or under construction at the report’s date, near Qalqiliya, Tulkarm and parts of Jerusalem (para. 82). It lies within occupied territory for most of its course, deviating more than 7.5 kilometres from the Green Line in places and up to 22 kilometres on the planned route, while 1 to 2 kilometres west of Tulkarm appear on the Israeli side (para. 83). On the planned route approximately 975 square kilometres (16.6 per cent of the West Bank) would lie between the Green Line and the wall, home to 237,000 Palestinians, with another 160,000 Palestinians in almost completely encircled enclaves and nearly 320,000 Israeli settlers (178,000 in East Jerusalem) in the area between the line and the wall (para. 84). In October 2003 Israeli Defence Forces orders made that area a “Closed Area”: residents and non-residents need a permit or identity card to remain or enter, most residents having received permits for a limited period, while Israeli citizens, permanent residents and those eligible under the Law of Return may move freely without a permit, and entry and exit are only through gates “opened infrequently and for short periods” (para. 85).

  • Applicable law — Charter, self-determination, Hague Regulations (paras. 86-89, PDF p.30-31). The relevant rules are in the Charter, treaties, customary law and Assembly and Council resolutions (para. 86). Charter Article 2(4) is quoted; resolution 2625 (XXV) of 24 October 1970 emphasized that “No territorial acquisition resulting from the threat or use of force shall be recognized as legal.”, and the Charter principles on the use of force and that corollary reflect customary law (Nicaragua, paras. 187-190) (para. 87). Self-determination is enshrined in the Charter and resolution 2625 (XXV) and in common Article 1 of the two Covenants, was made applicable to all non-self-governing territories in the Namibia opinion (paras. 52-53), and “the right of peoples to self-determination is today a right erga omnes” (East Timor, para. 29, cited para. 88). Israel is not a party to the Fourth Hague Convention of 1907, but the Nuremberg Tribunal found its rules “declaratory of the laws and customs of war” and the Court reaches the same conclusion: “the provisions of the Hague Regulations have become part of customary law”, as all participants recognize; the Fourth Geneva Convention is supplementary to Sections II and III of the Regulations under its Article 154, Section III being particularly pertinent (para. 89).

  • Applicable law — Fourth Geneva Convention (paras. 90-101, PDF p.31-34). Israel disputes the Convention’s applicability de jure, citing in the Secretary-General’s report Annex I “the lack of recognition of the territory as sovereign prior to its annexation by Jordan and Egypt” and that the territory is “not a territory of a High Contracting Party as required by the Convention” (para. 90). Israel ratified the Convention on 6 July 1951 and Jordan was a party from 29 May 1951, with no pertinent reservations; Palestine’s unilateral undertaking of 7 June 1982 was considered valid by Switzerland as depositary, which was not in a position to decide on the 1989 accession request in the name of the “State of Palestine” (para. 91). Common Article 2 is quoted in full (para. 92). Israel’s Order No. 3, Article 35, directed its military courts to apply the Convention in judicial procedures, and Israel generally applies its humanitarian provisions in fact, but maintains de jure that Article 2(2) requires territory under a High Contracting Party’s sovereignty, which Jordan lacked (para. 93). Interpreting the treaty under Vienna Convention Articles 31-32, the Court holds Article 2(1) requires only an armed conflict between two contracting parties, whereupon the Convention applies in any territory occupied in its course, and Article 2(2)‘s object “is not to restrict the scope of application of the Convention … by excluding therefrom territories not falling under the sovereignty of one of the contracting parties” but to cover occupation meeting no armed resistance — the drafters intending to protect civilians “regardless of the status of the occupied territories”, as Article 47 shows, and as the 1947 Conference of Government Experts’ travaux and the 1939 Bohemia and Moravia example confirm (paras. 94-95). The interpretation is confirmed by the High Contracting Parties’ statements of 15 July 1999 and 5 December 2001 reaffirming applicability “to the Occupied Palestinian Territory, including East Jerusalem”, by the ICRC’s declaration of 5 December 2001 that it “has always affirmed the de jure applicability” of the Convention to the territories occupied since 1967, by Assembly resolutions 56/60 and 58/97, by Security Council resolutions 237 (1967), 271 (1969), 446 (1979), 681 (1990), 799 (1992) and 904 (1994), and by the Israeli Supreme Court’s Rafah judgment of 30 May 2004 (paras. 96-100). Paragraph 101: the Convention “is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties”, Israel and Jordan both being parties in 1967, so it applies in the territories east of the Green Line occupied in that conflict, “there being no need for any enquiry into the precise prior status of those territories”.

  • Applicable law — human rights instruments, unfinished (paras. 102-109, PDF p.34-35). Israel denies that the ICCPR and ICESCR, “both of which it has signed”, are applicable to the occupied territory, asserting humanitarian law is the protection in conflict while human rights treaties protect citizens from their own government in peacetime (Secretary-General’s report Annex I, para. 4, quoted para. 102); other participants addressing the issue contend both Covenants apply. Israel ratified both Covenants and the Convention on the Rights of the Child on 3 October 1991 (para. 103). On the relationship of the two branches: ICCPR protection “does not cease in times of war, except by operation of Article 4” of the Covenant, and the right not arbitrarily to be deprived of life applies in hostilities, tested by the lex specialis of armed conflict (Nuclear Weapons, paras. 24-25) (para. 105); generally human rights protection does not cease in armed conflict save by derogation, and rights may be exclusively matters of humanitarian law, exclusively of human rights law, or of both, the Court taking both branches into consideration, human rights law and, as lex specialis, humanitarian law (para. 106). ICCPR Article 2(1) is quoted; its phrase “within its territory and subject to its jurisdiction” admits two readings, and the Court begins its determination: State jurisdiction is primarily territorial but may sometimes be exercised outside the national territory, and compliance would seem natural even then given the Covenant’s object and purpose (paras. 107-109; analysis continues at PDF p.36, part 2).

  • Applicable law — human rights instruments, completed (paras. 109-113, PDF p.36-37). The Human Rights Committee’s constant practice (Uruguay agents in Brazil, Argentina and Germany) and the travaux show the ICCPR applies where a State exercises jurisdiction outside its territory; against Israel’s 1998 position the Committee pointed in 2003 to Israel’s long-standing presence, ambiguous attitude to the territories’ future status and effective jurisdiction, and held the Covenant’s provisions apply to the benefit of the Occupied Territories’ population for conduct of Israel’s authorities or agents. Paragraph 111: the ICCPR “is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”. The ICESCR has no scope provision, but Israel’s own reports gave settler statistics while excluding the Palestinian population in the same areas; the Committee on Economic, Social and Cultural Rights reaffirmed that Israel’s obligations “apply to all territories and populations under its effective control”, and the Court, the territories having been under Israel’s territorial jurisdiction as occupying Power for over 37 years, holds Israel bound by the ICESCR there and obliged not to obstruct rights in fields transferred to Palestinian authorities. The Convention on the Rights of the Child of 20 November 1989, by its Article 2 (“within their jurisdiction”), is applicable within the Occupied Palestinian Territory.

  • Breach — self-determination and settlements (paras. 114-122, PDF p.37-40). The PLO’s position (Secretary-General’s report, Annex II) is that construction is an attempt to annex territory and that de facto annexation interferes with territorial sovereignty and self-determination; Israel’s position (para. 116) is that the wall’s sole purpose is combating terrorist attacks from the West Bank, that it is temporary and not a border, and that “As soon as the terror ends, the fence will no longer be necessary.” The existence of a “Palestinian people” is no longer in issue, recognized by Israel in the 9 September 1993 Arafat-Rabin letters and the 1995 Interim Agreement, and its rights include self-determination (para. 118). The route includes some 80 per cent of the settlers in the Closed Area and is traced to include the great majority of settlements (para. 119). Article 49, paragraph 6, prohibits any measures organizing or encouraging transfers of the occupying Power’s own population; since 1977 Israel has conducted a settlement policy contrary to it, and the Security Council in resolutions 446 (1979) of 22 March 1979, 452 (1979) of 20 July 1979 and 465 (1980) of 1 March 1980 — having also called upon “Israel, as the occupying Power, to abide scrupulously” by the Convention — held that policy to have no legal validity and to be a “flagrant violation”: “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.” (para. 120). Despite Israel’s assurances, the construction and régime create a “fait accompli” that could become permanent and “would be tantamount to de facto annexation” (para. 121); the route incorporates more than 16 per cent of the West Bank, gives expression in loco to the illegal Jerusalem and settlement measures, and risks further demographic change, so the construction “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right” (para. 122).

  • Breach — humanitarian and human rights provisions (paras. 123-134, PDF p.40-45). Only Section III of the Hague Regulations applies in the West Bank (Articles 43, 46, 52); of the Fourth Geneva Convention, by its Article 6 only the listed articles remain applicable, including Articles 47, 49, 52, 53 and 59, all quoted (paras. 124-126). Israel’s ICCPR derogation of 3 October 1991 concerns only Article 9, so the other articles, including Articles 17 and 12(1), remain applicable (paras. 127-128). Freedom of access to the Christian, Jewish and Islamic Holy Places is traced from the status of the Christian Holy Places under the Treaty of Berlin (1878, Article 62) and Mandate Article 13 through resolution 181 (II) and the 1949 Armistice to the 1994 Israel-Jordan treaty, Israel’s undertaking remaining valid for the places that came under its control in 1967 (para. 129). The relevant ICESCR rights (work, family, adequate standard of living, health, education) and Convention on the Rights of the Child articles are listed (paras. 130-131). On the information, particularly the Secretary-General’s report, destruction and requisition contravene Hague Articles 46 and 52 and Fourth Geneva Article 53 (para. 132). Paragraph 133 records, from Special Rapporteurs Dugard and Ziegler, the Special Committee and the World Food Programme: Qalqiliya (40,000 people) completely surrounded, entry and exit through a single checkpoint open 7 a.m. to 7 p.m.; an estimated 100,000 dunums of fertile land destroyed in the first phase; 25,000 new food-aid beneficiaries; 30 localities separated from health services, 22 from schools, 8 from primary water sources; a 40 per cent fall in the Qalqiliya United Nations hospital’s caseload; some 600 Qalqiliya shops shut and 6,000 to 8,000 people already departed; Palestinians compelled to depart, tending to alter the territory’s demographic composition. Paragraph 134: the construction and régime impede liberty of movement under ICCPR Article 12(1), impede the rights to work, health, education and an adequate standard of living under the ICESCR and the Convention on the Rights of the Child, and, by contributing to demographic change, contravene Article 49, paragraph 6.

  • Justifications rejected (paras. 135-142, PDF p.45-48). Hague Article 46 and Fourth Geneva Article 47 have no military-exigency qualifier; Article 49, paragraph 2’s exception does not apply to paragraph 6; Article 53’s exception (“rendered absolutely necessary by military operations”) may be invoked after the close of operations, but the Court is not convinced the destructions were so rendered necessary (para. 135). ICCPR Article 12, paragraph 3 restrictions must be necessary and, in the Human Rights Committee’s words, “must conform to the principle of proportionality” and be “the least intrusive instrument amongst those which might achieve the desired result”; those conditions are not met, and the ICESCR restrictions fail Article 4’s “solely for the purpose of promoting the general welfare in a democratic society” condition (para. 136). The Court “is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives” and the infringements “cannot be justified by military exigencies or by the requirements of national security or public order” (para. 137). Article 51 self-defence: Article 51 recognizes the inherent right “in the case of armed attack by one State against another State”, Israel does not claim the attacks are imputable to a foreign State, and the threat originates within territory under Israel’s control, so resolutions 1368 (2001) and 1373 (2001) do not apply either: “Article 51 of the Charter has no relevance in this case.” (para. 139). Necessity: a ground accepted only on an exceptional basis, requiring the act to be “the only way for the State to safeguard an essential interest against a grave and imminent peril”; the Court is not convinced the route chosen was the only means (para. 140). Israel “has the right, and indeed the duty, to respond in order to protect the life of its citizens”, but its measures must remain in conformity with international law (para. 141); it cannot rely on self-defence or necessity, and the construction and régime “are contrary to international law” (para. 142).

  • Legal consequences (paras. 143-162, PDF p.48-52). Participants’ contentions are recorded, Israel having presented no arguments on consequences (paras. 144-146). Israel’s responsibility is engaged (para. 147). For Israel: comply with the obligations breached, including respect for self-determination and ensuring freedom of access to the Holy Places (para. 149); cease the works forthwith, dismantle forthwith the parts in the Occupied Palestinian Territory, and repeal or render ineffective forthwith the legislative and regulatory acts, except acts providing compensation or reparation (para. 151); and make reparation — return the land, orchards, olive groves and other immovable property seized, or compensate where restitution is materially impossible, and compensate all natural or legal persons for any material damage (paras. 152-153, on the Factory at Chorzów principle). For other States: the obligations violated include obligations erga omnes — respect for Palestinian self-determination and certain humanitarian-law obligations (paras. 155-157) — and by common Article 1 every State party to the Fourth Geneva Convention must ensure its requirements are complied with (para. 158); all States must not recognize the illegal situation, must not render aid or assistance in maintaining it, and must see to it that any impediment to Palestinian self-determination is brought to an end, and States parties to the Convention of 12 August 1949 must ensure Israel’s compliance with it (para. 159). The United Nations, especially the Assembly and the Security Council, should consider what further action is required (para. 160). In the wider context (paras. 161-162), both Israel and Palestine must scrupulously observe humanitarian law, and the conflict can end only through good-faith implementation of Security Council resolutions 242 (1967) and 338 (1973) and the Roadmap, toward a negotiated solution and a Palestinian State side by side with Israel.

  • Operative reply (para. 163, PDF p.52-54). Jurisdiction unanimously; decision to comply by 14 votes to 1 (Judge Buergenthal against); reply A (contrary to international law), B (cease, dismantle, repeal) and C (reparation) each by 14 to 1 (Buergenthal against); D (other States’ non-recognition, non-assistance and ensure-compliance obligations) by 13 votes to 2 (Judges Kooijmans and Buergenthal against); E (United Nations further action) by 14 to 1 (Buergenthal against). Done at the Peace Palace, The Hague, 9 July 2004, French text authoritative. Separate opinions of Judges Koroma, Higgins, Kooijmans, Al-Khasawneh, Elaraby and Owada and a declaration of Judge Buergenthal are appended.

  • Separate opinion of Judge Koroma (PDF p.55-56). Concurring: the construction has involved annexation of parts of the occupied territory contrary to non-acquisition by force; occupation is temporary and must serve the population’s interests and the occupying Power’s military needs, so anything changing its character is illegal; the question — whether an occupying Power may unilaterally change an occupied territory’s character — is eminently legal. Self-determination entitles the Palestinian people “to a State of their own as originally envisaged in resolution 181 (II) and subsequently confirmed”; the international community holds a “sacred trust” for the former mandated territory and must not recognize unilateral change; the findings are erga omnes; all parties must respect humanitarian law even though “a prolonged occupation would engender resistance”; the Assembly should use the findings toward a just and peaceful solution, not recriminations.

  • Separate opinion of Judge Higgins (PDF p.57-64). Concurring in the dispositif (with “considerable hesitation” on paragraph (2)) but disagreeing with several steps. The Namibia analogy is misconceived: there the Court had already held the mandatory’s obligations and no obligations lay on SWAPO (she writes that the legal obligations as mandatory Power lay with “South West Africa”, as printed — see Open questions), while here only the Assembly has pronounced on legality and obligations lie on both sides. The Court is silent on the Western Sahara condition that the request’s object not be to bring a dispute before the Court in order later to exercise powers over it, and by silence “essentially revises, rather than applies, the existing case law”. The Opinion is unbalanced: paragraph 162’s recall of both parties’ humanitarian obligations should have been spelled out and placed in the dispositif, as in the Nuclear Weapons clause F — Israel entitled to exist, recognition and security, the Palestinian people to territory, self-determination and a State, secured by negotiation, both sides moving simultaneously; protection of civilians binds those seeking liberation as much as the occupier. On the merits she agrees with the violations actually found (Fourth Geneva Article 49, and Hague Articles 46 and 52 and Fourth Geneva Article 53 at paragraph 132) and with paragraph 134 on ICCPR Article 12, but criticizes the light, undifferentiated treatment of humanitarian law, the single-phrase ICESCR finding, the self-determination finding at paragraph 122 as “a non sequitur” (the wall is not the real impediment; the territory is no more or less occupied for the wall running through it), and the Article 51 reasoning (nothing in Article 51’s text limits it to State attacks; the Nicaragua qualification is the Court’s; an occupier does not lose the right to defend its citizens because attacks emanate from occupied territory) — while voting for subparagraph (3)(A) because non-forcible measures do not fall within Article 51 as normally understood and the route’s necessity and proportionality were not explained. The consequences in subparagraph (3)(D), she does not think, “have anything to do with the concept of erga omnes”: Barcelona Traction concerned locus standi, and non-recognition and non-assistance follow from a competent organ’s determination of illegality, not from erga omnes; common Article 1 is simply a treaty provision. The factual materials were general and largely the Secretary-General’s report, with Israel’s direct information “only very partial”, but the negative impact on parts of the West Bank population cannot be excused on military necessity and Israel has not explained why its security needs can be met only by the route selected.

  • Separate opinion of Judge Kooijmans, opening (PDF p.65-68; continues in part 3). He voted for every operative paragraph except (3)(D), for three reasons: the request did not make third-State obligations necessary (the Namibia analogy again, where consequences for States were at the request’s heart and premised on a Security Council decision); the Court’s reasoning on them is not persuasive; and (3)(D) is “rather weak” in practice, apart from the non-assistance finding he subscribes to. On context: the Court should have attended more explicitly to the decades-long tragedy on both sides; deliberate attacks on civilians are “the core element of terrorism”, every State has the right and duty to respond within international law, Israel has not respected those limits, and the wall has greatly added to Palestinian suffering; he doubts the last part of paragraph 122’s self-determination finding while accepting the structure separating Palestinians makes realization far more difficult. The historical résumé (paras. 70-78) is “rather two-dimensional”: it says nothing about the West Bank under Jordanian sovereignty 1949-1967 (claim relinquished only in 1988, recognized by three States only), an omission that in fact weakens nothing, since a territory claimed and controlled by one party is, once occupied by the other, occupied territory of a High Contracting Party — and Israel’s own post-occupation Order recognized as much. Israel’s letter of 29 January asked the Court to look beyond the request; the Court cannot have regard to a request’s origins or political history (Nuclear Weapons, para. 16, quoted), but it does not function in a void and should have reflected all interests throughout, not only in paragraph 162. On jurisdiction he fully shares the Court, while doubting the Article 12, paragraph 1, practice can be described without the substantive effect of resolution 377 A (V) on the Council-Assembly relationship (paras. 14-16, unfinished at PDF p.68).

  • Separate opinion of Judge Kooijmans, rest (paras. 16-51, PDF p.69-76). On Article 12: the conclusion that ES-10/14 did not contravene Article 12, paragraph 1, cannot be dissociated from the effect resolution 377 A (V) has had on that provision’s interpretation, and no Council member treated the 20 October 2003 reconvening or ES-10/13 as unconstitutional; he agrees parallel dealing has developed, while doubting a recommendation of ES-10/13’s character could lawfully have been adopted while the Council was still considering the specific issue undecided (paras. 16-18). On judicial propriety (paras. 19-28): he felt considerable hesitation — compliance will inevitably politicize the Court, but refusal would politicize it just as much, the risk having been the Assembly’s when it made the request, and only strict adherence to the judicial function minimizes it; the request is far from “legally neutral” (Judge Dillard in Namibia), so the Court was duty bound to reconsider its content proprio motu rather than assume what the Assembly “necessarily” must have assumed; paragraph 49’s “only a bilateral matter” finding is felicitous because a matter of concern to the organized international community and a bilateral dispute over it can exist simultaneously; and Israel’s evidentiary argument fails, sufficiency being the Court’s own responsibility, though Israel’s choice not to address the merits is a matter for sincere regret. On the merits (paras. 29-36): he shares the applicability and breach findings but regrets paragraph 137 lists no provisions breached, welcomes Israel’s assurances of temporariness as a recognition of legal commitments while sharing the fait accompli concern, and would have left self-determination to the political process — not every impediment to a right’s exercise is by definition a breach of the obligation to respect it, and the Namibia and East Timor references do not show how the right translates into obligations for a non-colonial State. The wall should also have been put to the Proportionality test, which its route and consequences would manifestly fail. On self-defence, the Court by-passed the new element in resolutions 1368 (2001) and 1373 (2001) — self-defence recognized without reference to a State attack — but rightly concluded Article 51 cannot be invoked, because those resolutions address international terrorism and the acts originate within territory under the victim State’s control. On consequences (paras. 37-51, section headed IV as printed): he voted for (3)(B), (C) and (E); the request did not necessitate determining other States’ consequences, the Namibia analogy being insufficient; working through ILC Article 41, its paragraph 1 duty to co-operate is encompassed in (3)(E), not (3)(D), and its paragraph 2 non-recognition duty, whose ILC examples are formal or quasi-formal legal claims, amounts as applied to an illegal fact to “an obligation without real substance”, 144 States having already condemned the construction in ES-10/13; he fully supports non-assistance and would have added a reminder of humanitarian assistance to the victims; and on common Article 1, following Kalshoven’s study of the travaux préparatoires, he does not know whether the Court’s reading is correct as positive law, the Court having given no argument for it, and sees no positive action expected of individual States apart from diplomatic demarches — for all these reasons he voted against (3)(D).

  • Separate opinion of Judge Al-Khasawneh (PDF p.77-79). Concurring, to elucidate salient points. On status: few propositions rest on so long, constant and solid an opinio juris as that Israel’s presence in the West Bank including East Jerusalem and Gaza is military occupation, evidenced by the Council and Assembly resolutions, the High Contracting Parties and the ICRC, States including those friendly to Israel, Israel’s initial recognition in Article 35 of Order No. 1 of 7 June 1967, and the Israeli Supreme Court; the Court was wise not merely to reiterate that opinio juris but to reach the same conclusion by interpreting the Convention (paras. 86-101), and wise to make no enquiry into prior status, which could matter only if the territories had been terra nullius — a discredited concept incompatible with a former mandated territory, where non-annexation and the sacred trust continue until self-determination is achieved. What prevents that right’s fulfilment is the prolonged occupation with its policy of creating faits accomplis. On the Green Line: initially an armistice line only, it “is the starting line from which is measured the extent of Israel’s occupation of non-Israeli territory” (Sir Arthur Watts), attempts to denigrate it work both ways, and Israel’s security would be assured by stabilizing its legal relationship with the Palestinians, not by walls. On negotiations: a means, not an end; discharge of obligations including erga omnes obligations cannot be made conditional on them, and good faith requires abstaining from faits accomplis such as the wall.

  • Declaration of Judge Buergenthal (PDF p.80-83). Dissenting from the decision to comply and voting against the merits findings, not because the wall raises no serious questions — he shares the applicability of humanitarian and human rights law, accepts the deplorable suffering, and is prepared to assume some or even all segments might on full analysis violate international law — but because the Court lacked the requisite factual basis under the Western Sahara test (para. 46): it never seriously examined the nature and impact of the repeated deadly cross-Green Line terrorist attacks on Israel proper, or necessity and proportionality segment by segment, and barely addressed Israel’s position as summarized in Annex I to the Secretary-General’s report (no change in ownership of land, compensation available, petitions to the Supreme Court). On self-determination, a legitimately invoked self-defence would preclude wrongfulness under Article 21 of the ILC Articles on State Responsibility. On Article 51: the Charter does not condition self-defence on an attack by another State, resolutions 1368 (2001) and 1373 (2001) do not limit it to State actors (citing Franck, American Journal of International Law, Vol. 95, 2001, pp.839-840), and attacks from across the Green Line originate outside Israel proper, so the Court’s formalistic approach avoids the case’s heart. He agrees Article 49, paragraph 6, applies to the settlements and is violated by them, so segments protecting settlements are ipso facto unlawful and would seriously be doubted under proportionality. Finally: advisory proceedings have no parties, Israel had no obligation to participate or adduce evidence once its consent was held unnecessary, and the Court may not draw adverse conclusions from its silence or assume its material sufficed.

  • Separate opinion of Judge Elaraby (PDF p.84-94). Complete and unqualified support, elaborating three points. (I) United Nations responsibility: discharged for five decades without proper regard for the rule of law; no organ had ever requested the Court on any aspect of Palestine, although Sub-Committee 2’s 1947 report to the Ad Hoc Committee on the Palestinian Question (A/AC.14/32 and Add. 1, paras. 37-38, 40) urged an advisory opinion on the Assembly’s competence and warned refusal would be a confession the Assembly meant to settle the problem irrespective of the merits; the Partition Resolution’s own referral avenue (referral of any dispute relating to the application or interpretation of its provisions, at either party’s request) was also never followed, making ES-10/14 a landmark and the Opinion of great historical significance. (II) Status: Palestine was a class “A” Mandate, its people’s existence as an independent nation provisionally recognized, the Mandatory confined to administrative advice and assistance; the 1950 principles of non-annexation and the sacred trust remain valid for the Occupied Palestinian Territory; resolution 181 (II)‘s “transitional period” pending the two States’ independence is an Assembly determination within its competence with legal force (citing Namibia, para. 105, and Certain Expenses), serves as a legal nexus carrying Mandate responsibilities to the present, and obliges the United Nations to pursue an independent Palestine — the Arab State proclaimed in 1948’s counterpart “has not yet materialized” while Israel’s declaration of 14 May 1948 rested “on the strength of the resolution of the United Nations General Assembly”. Israel’s contractual undertakings — resolution 242 in the Camp David Accords of 17 September 1978, Article IV of the Oslo Accord of 13 September 1993 (the West Bank and Gaza Strip as “a single territorial unit whose integrity will be preserved during the interim period”), and Article XXXI(7) of the Interim Agreement of 28 September 1995 (no step changing their status pending permanent-status negotiations) — legally debar altering the territory’s status; read in light of the Israeli Prime Minister’s letter of 14 April 2004 and its Disengagement Plan (“it is clear that in the West Bank, there are areas which will be part of the State of Israel, including cities, towns and villages”), the wall was in his submission conceived to annex, and the fait accompli finding should have been reflected in the dispositif. (III) Belligerent occupation: Charter Article 2(4) is a jus cogens norm and ex injuria jus non oritur applies; the occupation has lasted almost four decades, and prolonged occupation — international law performing a “holding operation pending the termination of the conflict” (Greenwood) — does not license disregarding the Regulations or the Convention; security is reciprocal under resolution 242, humanitarian law binds both sides by the identical yardstick, armed resistance does not license disregarding human rights, and, following Falk and Weston, the breaches reside in “the illegality of the Israeli occupation regime itself”, the only viable prescription being to end the occupation (citing resolution 476 (1980)). Military necessity is strictly construed and, in Schmitt’s words, “a principle of limitation, not authorization. In its legal sense, military necessity justifies nothing.”; the accompanying destruction — homes, infrastructure, land, orchards and olive groves, with “Over 100,000 civilian non-combatants” stated to have been “rendered homeless and hapless” — cannot be justified under any pretext, and should have been characterized as grave breaches under Article 147 on the Dugard and Ziegler reports. The paragraph 122 self-determination dictum has his full support, and its consequences for all States should have been in the dispositif. In conclusion, resolutions 242 and 338 impose synallagmatic obligations of result, not mere obligations of means confined to a negotiating process.

  • Separate opinion of Judge Owada, opening (PDF p.95-101). Concurring on jurisdiction, propriety and most merits points, with serious reservations about how the Court proceeded. Judicial propriety is for the Court to examine proprio motu, and embraces not only whether to comply but how jurisdiction is exercised: from the Permanent Court’s advisory origins under League Covenant Article 14, through Eastern Carelia (whose rationale was Russia’s withheld consent to settlement by the Covenant’s methods, not the existence of a dispute), a bilateral dispute is no bar, but the Namibia analogy is too facile — there any controversy was between the United Nations and the State concerned, whereas here an Israel-Palestine dispute undeniably underlies a matter also between the United Nations and Israel, and even Western Sahara is not completely analogous, the Assembly’s presumed objective here resembling the object Western Sahara said was not the Assembly’s. The critical test is whether a reply would circumvent the consent principle, and the Court should give objective findings of law for the Assembly rather than adjudicate the dispute. Fairness in procedure extends to the judge ad hoc question under Statute Article 68 and Rules Article 102: Israel would have been justified in applying, and Palestine’s inability to do likewise, not being recognized as a State for Statute purposes, itself raises a fairness question he leaves open. On facts, the humanitarian and socio-economic material is ample and reliable, but material explaining why and how construction as planned is necessary and appropriate on the Israeli side seems wanting, and the “not convinced” findings at paragraphs 137 and 140 admit that absence rather than rebut Israel’s arguments; he nevertheless accepts the impacts are so overwhelming that no substantiated military-exigencies justification could preclude wrongfulness under the stringent proportionality conditions, and that the Court must be seen to maintain fairness throughout the proceedings.

  • Separate opinion of Judge Owada, rest (paras. 27-31, PDF p.102-103). The request is focussed on a specific question and the Court should treat this question, and this question only, without expanding its enquiry into the bigger question relating to peace in the Middle East, including “permanent status” issues; nevertheless, for objective truth on the specific question in its complete picture and for fairness in the administration of justice in a case involving a dispute element between parties directly involved, it is of cardinal importance that the Court examine the specific question keeping in balance the overall picture that formed the entire background of the construction (para. 27). That background’s undisputed premise is the twin principles of Security Council resolution 242 (1967) — withdrawal of Israel armed forces from territories occupied in the 1967 conflict, and termination of all claims or states of belligerency with respect for every State’s sovereignty, territorial integrity, political independence and right to live in peace within secure and recognized boundaries — which the “Roadmap”, endorsed by Security Council resolution 1515 (2003), takes as its blueprint (para. 28). If the Court found the construction would go counter to that principle by impeding and prejudicing its realization, especially in the context of the customary rule of “the inadmissibility of the acquisition of territory by war” (Opinion para. 117), it should state this, and at the same time remind the General Assembly that the principle was couched in the context of the twin set, both of which would have to be realized side by side in a Middle East peace (para. 29). On Israel’s sole-purpose security argument, the Court confined itself to the paragraph 140 “only means” finding on the material before it, which included no elaboration on this point; even if the argument were acknowledged as true as far as Israeli motives were concerned, it would not suffice to justify the construction as actually drawn up and implemented, which, as the Court demonstrated with a high degree of persuasiveness, would still breach Israel’s obligations, inter alia, under the Hague Regulations and the Fourth Geneva Convention unless cogent justifications precluded wrongfulness — but an in-depth effort could have been made by the Court, proprio motu, to ascertain the argument’s validity on the basis of facts and law and to present an objective picture of the construction in its entirety (para. 30). Finally, the issue of mutual resort to indiscriminate violence against civilian population should be looked at: without going into the causal relationship, or whether the so-called terrorist attacks by Palestinian suicide bombers against the Israeli civilian population should be blamed as a good enough ground for justifying the construction, it is beyond dispute that “this tragic circle of indiscriminate violence perpetrated by both sides against innocent civilian population of each other is to be condemned and rejected as totally unacceptable”; although not expressly referred to in the specific question, that factor should be underlined as an important segment of the Opinion, particularly so that the Court approaches the subject-matter in a balanced way (para. 31). The opinion ends “(Signed) Hisashi OWADA.” (PDF p.103).

Key passages

  • “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.” (PDF p.39)

  • “Article 51 of the Charter has no relevance in this case.” (PDF p.47)

  • “in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories” (Human Rights Committee, CCPR/CO/78/ISR, para. 11, quoted at PDF p.36)

  • “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.” (Professor Michael Schmitt, quoted by Judge Elaraby at PDF p.93)

  • “is the starting line from which is measured the extent of Israel’s occupation of non-Israeli territory” (Sir Arthur Watts on the Green Line, quoted by Judge Al-Khasawneh at PDF p.79)

  • “the Court has at its disposal the report of the Secretary-General, as well as a voluminous dossier submitted by him to the Court, comprising not only detailed information on the route of the wall but also on its humanitarian and socio-economic impact on the Palestinian population” (Opinion para. 57, quoted by Judge Owada at PDF p.101)

  • “this tragic circle of indiscriminate violence perpetrated by both sides against innocent civilian population of each other is to be condemned and rejected as totally unacceptable” (Judge Owada, PDF p.102)

  • “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.” (Charter Article 96(1), quoted at PDF p.11)

  • “resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ’s rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted” (Namibia opinion, quoted at PDF p.16)

  • “The Court accordingly has jurisdiction to give the advisory opinion requested by resolution ES-10/14 of the General Assembly.” (PDF p.18)

  • “All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.” (PDF p.27)

  • “No territorial acquisition resulting from the threat or use of force shall be recognized as legal.” (resolution 2625 (XXV), quoted at PDF p.30)

  • “the ICRC has always affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel, including East Jerusalem” (ICRC declaration of 5 December 2001, quoted at PDF p.33)

Evidence the work relies on

  • The reports the Court quotes at paragraph 133 for the wall’s effects: Special Rapporteur John Dugard’s report E/CN.4/2004/6 of 8 September 2003, Special Rapporteur Jean Ziegler’s The Right to Food mission report E/CN.4/2004/10/Add.2 of 31 October 2003, the Special Committee’s report A/58/311 of 22 August 2003, the Palestinian Central Bureau of Statistics figures in the Secretary-General’s report, and a World Food Programme survey (PDF p.44-45).

  • The treaty-body records on applicability: Human Rights Committee concluding observations CCPR/C/79/Add.93 and CCPR/CO/78/ISR and Israel’s statements CCPR/C/SR.1675; Committee on Economic, Social and Cultural Rights documents E/C.12/1/Add.27, E/1990/6/Add.32 and E/C.12/1/Add.90 (PDF p.36-37).

  • For the separate opinions in part 3: Judge Kooijmans relies on Article 41 of the ILC Articles on State Responsibility and its commentary and on Kalshoven’s study of common Article 1’s travaux, “The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny Seed to Ripening Fruit”, Yearbook of International Humanitarian Law, Vol. 2 (1999), pp.3-61 (PDF p.74-76); Judge Buergenthal on Article 21 of the same ILC Articles, on Israel’s position in Annex I to the Secretary-General’s report (A/ES-10/248, p.8) and on Franck, “Terrorism and the Right of Self-Defense”, American Journal of International Law, Vol. 95, 2001, pp.839-840 (PDF p.81-82); Judge Elaraby on the Sub-Committee 2 report A/AC.14/32 and Add. 1 of 11 November 1947, the Camp David Accords of 17 September 1978, Article IV of the Oslo Accord of 13 September 1993, Article XXXI(7) of the Interim Agreement of 28 September 1995, the Israeli Prime Minister’s letter of 14 April 2004 and its Disengagement Plan, Greenwood in International Law and the Administration of Occupied Territories (1992), Falk and Weston in the same volume, Chap. 3, pp.146-147, and Schmitt (1998), 19 Michigan Journal of International Law, p.1080 (PDF p.85-93); Judge Owada on Pomerance, The Advisory Function of the International Court in the League and U.N. Eras (1973), and the Eastern Carelia, Fisheries Jurisdiction, Nuclear Tests and Nicaragua records (PDF p.95-100).

  • For the conclusion of Judge Owada’s separate opinion (PDF p.102-103): the text of Security Council resolution 242 (1967) as he quotes its twin principles, the “Roadmap” as endorsed by Security Council resolution 1515 (2003), and the Advisory Opinion itself at paragraphs 117 (inadmissibility of the acquisition of territory by war) and 140 (the “only means” finding on the material before the Court).

  • For the separate opinions in this part: Judge Higgins cites, among others, the Western Sahara conditions (pp.25-27, paras. 32-33, 39), Nicaragua on armed attack (p.103, para. 195), the ILC Commentaries (A/56/10, p.278) and the Pictet Commentary on common Article 1 (p.16), and two factual sources she says the Court does not clearly use — Israel’s reply E/CN.4/2004/6/Add.1 and the March 2004 HEPG update (PDF p.59, p.63-64); Judge Kooijmans cites the Quartet Statement of 16 July 2002 and Israel’s letter of 29 January in MWP 2004/38 (PDF p.66-67).

  • The text of resolution ES-10/14 and the Secretary-General’s report of 24 November 2003 (A/ES-10/248) and his supplementing written statement, with its dossier of documents, on-site reports by special rapporteurs and United Nations organs, route particulars and humanitarian and socio-economic impact material, as the Court presents them (PDF p.5-7, p.22-23, p.27-29).

  • The written statements of the 49 States and entities listed in paragraph 9 and the oral statements of paragraph 12, including Israel’s written statement, limited to jurisdiction and propriety but with observations and annexes on security (PDF p.8-10, p.23).

  • Security Council and General Assembly records of the Tenth Emergency Special Session and of the Council’s October 2003 meetings (S/1997/199, S/1997/241, S/2003/973, S/PV.4841-4842, A/ES-10/1, A/ES-10/242-244, A/ES-10/249), as cited in paragraphs 18-23.

  • The Court’s and the Permanent Court’s prior advisory opinions and judgments, cited throughout part 1 for jurisdiction, discretion, treaty interpretation and the status of the Hague Regulations and self-determination: Interpretation of Peace Treaties (1950), Certain Expenses (1962), Namibia (1971), Western Sahara (1975), Nuclear Weapons (1996), Nicaragua (1986), East Timor (1995), and others named in Section by section.

  • Treaty texts as quoted: the Charter, the United Nations Covenants’ common Article 1 and ICCPR Articles 2(1) and 4, the Fourth Geneva Convention’s common Article 2 and Articles 47, 142 and 154, Hague Regulation Article 42, and Vienna Convention Articles 31-32.

Analysis

The Opinion in part 1 is a jurisdictional and framing judgment before it is a judgment on the wall: it establishes the Assembly’s competence against the Article 12 and Uniting for Peace objections by reading the Charter through the Organization’s evolved practice rather than its early strict practice, treats the political character and possible negotiating effects of the question as irrelevant to jurisdiction and not compelling in discretion, and refuses the consent and “clean hands” framings on the ground that an advisory opinion is given to the requesting organ on a matter of direct United Nations concern. Its merits method is set by paragraph 69 — status, description, applicable law, breach — and its description of the wall rests, as it states, on the Secretary-General’s report and written statement, Israel not having addressed the merits. The Fourth Geneva Convention analysis is textual and confirmatory: common Article 2 is read by its object of protecting civilians regardless of the occupied territory’s prior status, and the reading is then checked against the travaux, the High Contracting Parties, the ICRC, the Assembly, the Council and Israel’s own Supreme Court. Part 1 makes no finding yet, in the Opinion’s own reasoning, on breach, self-defence, necessity or consequences; those holdings appear in this file only in the headnote summary (PDF p.2-4). Part 2 supplies them. Its breach findings rest on the route as described from the Secretary-General’s report rather than on section-by-section application: Judge Higgins, concurring, notes the Opinion in the event finds violations only of the provisions at paragraphs 120 and 132 plus ICCPR Article 12 and the ICESCR/CRC rights at paragraph 134, criticizes its undifferentiated structure, and calls the paragraph 122 self-determination inference a non sequitur; Judge Kooijmans likewise doubts the last part of paragraph 122 while accepting the structure makes realization far more difficult. The two concurring opinions also expose the Opinion’s two most contested moves: the Article 51 holding, which Higgins shows rests on the Nicaragua gloss rather than Article 51’s text, though she agrees a wall is not self-defence under Article 51 as normally understood and that the route was not shown necessary and proportionate; and the erga omnes route to third-State consequences at paragraphs 155-159, which Higgins and Kooijmans both reject as reasoning (Higgins: non-recognition follows from a determination of illegality, not erga omnes; Kooijmans voted against subparagraph (3)(D) on this and on its practical weakness) while subscribing to non-assistance. Both, and Koroma in the opposite direction, treat balance as the Opinion’s exposed flank: Higgins and Kooijmans would have had the both-parties obligations in the reasoning throughout and in the dispositif; Koroma stresses the findings’ erga omnes authority and the sacred trust. Part 3 completes the spectrum. Kooijmans supplies the reasoned middle: he accepts the merits almost entire, supplies the proportionality test the Opinion omits, and dismantles only the third-State reasoning, through the ILC Articles rather than assertion. Buergenthal’s declaration is the file’s one dissent, and it is procedural-evidentiary, not a defence of the wall: its force depends on treating advisory proceedings as imposing no burden on a non-participating State, a premise Owada’s concurrence partly shares on fairness — both judges accept the violations could follow on a fuller record, and Buergenthal himself holds the settlement-protecting segments ipso facto unlawful. Al-Khasawneh and Elaraby press in the opposite direction from the majority’s restraint: Al-Khasawneh grounds occupied status in opinio juris the Court had treated as merely confirmatory, and Elaraby alone builds a positive case from instruments the Opinion does not use — the 1947 Sub-Committee 2 report, the Oslo and Interim undertakings, and the April 2004 Disengagement Plan — to argue the dispositif itself was under-inclusive on annexation, grave breaches and the consequences of the erga omnes self-determination right. The separate opinions thus agree on the applicable law and on the wall’s illegality in substance while disagreeing, from both directions, on how much the Court proved and how far its consequences run. Judge Owada’s conclusion (paras. 27-31, PDF p.102-103) closes the file on the balance theme his opening raised: he would have had the Court state the inadmissibility finding expressly in the context of resolution 242’s twin principles, both to be realized side by side, make an in-depth proprio motu effort to test Israel’s security contention on facts and law even though that contention, even if true as to motives, could not justify the construction as actually implemented, and underline the condemnation of indiscriminate violence by both sides against each other’s civilians — a balanced presentation he treats as part of fairness in the administration of justice, not as a condition on the illegality findings he accepts.

International Court of Justice, Abdul G. Koroma, Rosalyn Higgins, Pieter Kooijmans, Awn Al-Khasawneh, Thomas Buergenthal, Nabil Elaraby, Hisashi Owada, John Dugard, UN Security Council, Arab League, Organization of the Islamic Conference, International Committee of the Red Cross, Quartet, Green Line, East Jerusalem, West Bank, Ariel, Qalqilya, Tulkarm, Mandate for Palestine, Tenth Emergency Special Session of the General Assembly, UN General Assembly Resolution ES-10/14, UN Security Council Resolution 242, Quartet Roadmap

Separation wall, Self-determination, Seam zone, Fourth Geneva Convention, Hague Regulations, Erga omnes obligations, Fait accompli, Holy Places, Proportionality

How it relates to other sources

Resolution ES-10/14, ingested as Resolution ES-10/14: Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory (8 December 2003), is reproduced in full at paragraphs 1 and supplies the question; this Opinion is its answer, and resolution ES-10/15, ingested as Resolution ES-10/15: Advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (20 July 2004), afterwards acknowledged the Opinion of 9 July 2004, reproduced its reply and demanded compliance. The Beit Sourik case judgment of 30 June 2004, nine days earlier, is the domestic counterpart for one segment west of Jerusalem: there the parties agreed the Fourth Geneva Convention’s humanitarian rules applied so its applicability was not in issue, while here Israel’s de jure non-applicability position is set out and rejected at paragraphs 90-101; the segment figures in Beit Sourik (35,000 inhabitants, more than 30,000 dunams) concern a roughly 40-kilometre section, against this Opinion’s West Bank-wide planned-route figures at paragraph 84. The contrast in method is sharper in part 2: Beit Sourik tested each segment under a proportionality test the Supreme Court derived in part from the same Hague and Fourth Geneva provisions, and ordered the route changed where the harm was disproportionate, while this Court, as Judge Higgins notes, makes no section-by-section application and is not convinced the specific course chosen was necessary at all (paras. 135-137).

Open questions

  • Higgins writes at paragraph 2 of her separate opinion that “all the legal obligations as mandatory Power lay with South West Africa” (PDF p.57), where South Africa was the mandatory Power whose obligations the earlier Opinions had made clear — an apparent slip, recorded as printed; the reading notes in part 2 originally smoothed it to South Africa.

  • Higgins dates Security Council resolution 1515 to 2002 at PDF p.57 (“Security Council resolutions 242 (1967) and 1515 (2002)”), while the Opinion elsewhere and resolution ES-10/14 date resolution 1515 (2003) to 19 November 2003 (PDF p.12). Both are recorded as printed.

  • Higgins cites “General Assembly resolution 2144 (XXV) 1987 (Afghanistan)” at PDF p.62; the session number and year as printed do not correspond to each other in the file’s own usage elsewhere, and the file does not reconcile them. Recorded as printed.

  • The Special Committee passage quoted at paragraph 133 reads “citrus grows” as printed (PDF p.44), for citrus groves; kept as printed.

  • Kooijmans’s headnote (PDF p.65) lists “Article 12, paragraph 2, of the Charter” among his topics, while his text at paragraphs 14-16 and the Opinion throughout discuss Article 12, paragraph 1. Recorded as printed.

  • Higgins locates the Court’s humanitarian-law violation findings at paragraph 120 (Article 49) and paragraph 132 (Hague Articles 46 and 52, Fourth Geneva Article 53) (PDF p.61); the Court’s own summary at paragraph 134 also rests a demographic-change contravention on Article 49, paragraph 6. Both accounts are kept as the file gives them.

  • Kooijmans’s merits section is headed “V. Merits” (PDF p.71) and his legal-consequences section “IV. Legal consequences” (PDF p.73), numbering as printed; the file does not reconcile the sequence.

  • Al-Khasawneh, quoting Opinion paragraph 101, writes “High Contending Parties” (PDF p.78) for High Contracting Parties, as printed. His footnote 1 gives the Secretary-General’s report document symbol as “A/165-10/6-S/1997/494” (PDF p.77), as printed in the text copy; the symbol as intended is not stated elsewhere in the file.

  • Elaraby states the United Nations’ special responsibility “has its origin in General Assembly resolution 118 (II) of 29 November 1947 (hereafter, the Partition Resolution)” (PDF p.85), while the file elsewhere numbers the Partition Resolution 181 (II), including Elaraby’s own footnote 1 and paragraph 2.3. Recorded as printed.

  • Elaraby states “Over 100,000 civilian non-combatants have been rendered homeless and hapless” by the destruction accompanying construction (PDF p.92), citing no source in that passage; the Opinion’s own figures at paragraph 133 are differently framed (100,000 dunums destroyed in the first phase; 25,000 new food-aid beneficiaries). Both are recorded as given.

  • Owada locates the Court’s reasons on jurisdiction and propriety at “paragraphs 24-67” (PDF p.95); the Opinion’s propriety section ends at paragraph 65, and paragraphs 66-69 state the scope and order of analysis. Recorded as printed.

  • Owada records that “the Russian Government declined the request from the Estonian Government” for consent to submit the Eastern Carelia question to the League Council (PDF p.96), in a dispute the same paragraph describes as between Finland and Russia; the attribution is recorded as printed and not reconciled in the file.

  • Paragraph 21 dates the General Assembly’s adoption of resolution ES-10/13 to 27 October 2003, while resolution ES-10/14 as reproduced at paragraph 1 reaffirms “its resolution ES-10/13 of 21 October 2003” (PDF p.5, p.12). Both dates are recorded as printed; the file does not reconcile them.

  • Paragraph 5 states the Registrar informed the addressees “[b]y letters of 19 December 2004” of the Court’s Order of 19 December 2003 (PDF p.8). The year is recorded as printed.

  • Whether the planned Jordan Valley section and Phase D were built, and how the route, length and Closed Area figures at paragraphs 80-85 changed after 25 January 2004, is outside part 1; the Court notes only the February 2004 demolition near Baqa al-Sharqiya and a slight reduction in planned length (PDF p.28).

Coverage

PDF p.1-103 of 103, read in full. The source is complete: the Advisory Opinion (paras. 1-163), the headnote and transmittal note, and all appended separate opinions (Judges Koroma, Higgins, Kooijmans, Al-Khasawneh, Elaraby and Owada) and Judge Buergenthal’s declaration are read in full, ending with Judge Owada’s signature at PDF p.103.

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