Read Palestine

Separate opinion of Judge Kooijmans, Wall Advisory Opinion

Properties2
tags
aliasesSeparate Opinion of Judge Kooijmans

12 min read

Summary

The separate opinion of Judge Pieter Kooijmans appended to the International Court of Justice Advisory Opinion of 9 July 2004 on the wall: he voted for every operative paragraph except subparagraph (3)(D) on legal consequences for other States, because the request did not necessitate determining third-State obligations (the Namibia analogy failing), the Court’s erga omnes reasoning to them is not persuasive, and (3)(D) is rather weak in practice apart from the non-assistance finding he subscribes to. In general agreement on jurisdiction, applicability and breach, he faults the Opinion’s balance — the historical résumé is “rather two-dimensional” for omitting the West Bank under Jordanian sovereignty 1949-1967, and terrorist attacks on civilians deserved explicit treatment throughout, not oblique references — doubts that the wall’s impediment to self-determination is without more a breach of the obligation to respect it, would have put the wall to the Proportionality test (which the route manifestly fails), holds the Court by-passed the new element in Security Council resolutions 1368 and 1373 on self-defence while rightly concluding Article 51 cannot be invoked for acts originating in territory under the victim State’s control, and, working through Article 41 of the ILC Articles on State Responsibility and Kalshoven’s study of common Article 1, rejects the non-recognition duty as applied to an illegal fact as “an obligation without real substance” and cannot support the ensure-respect finding as stated positive law (Separate opinion of Judge Kooijmans, Wall Advisory Opinion, PDF p.1-16).

What the file is

The standalone ICJ PDF of the separate opinion (General List No. 131), 16 PDF pages, printed p.219-234 as computed from the printed page numbers shown in the text copy at PDF p.6 (224) and PDF p.13 (231), signed Pieter H. Kooijmans. The supplied text copy carries scattered OCR garbling of names, document symbols and some words (e.g. “halanced” for balanced, “Narrzihia” for Namibia). The same opinion text is also contained in the appended opinions of Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (PDF p.65-76 of that file); this page treats the standalone ICJ file as its own source.

Section by section

  • I. Introductory remarks (PDF p.1-2, paras. 1-2): the sole negative vote, on (3)(D), for the three reasons in the Summary; the balance of the opinion follows the Court’s order — jurisdictional issues, judicial propriety, merits, legal consequences — preceded by remarks on background and context.
  • II. Background and context of the request (PDF p.2-5, paras. 3-13): he shares Opinion para. 54 but the Court should have attended more explicitly to the context — a decades-long threat to peace and a human tragedy on both sides. Deliberate indiscriminate attacks on civilians are the core element of terrorism, unconditionally condemned; “Every State, including Israel, has the right and even the duty (as the Court says in paragraph 141) to respond to such acts in order to protect the life of its citizens” (PDF p.3), within international law’s limits, which Israel has not respected, the route greatly adding to Palestinian suffering. Terrorist acts have also caused “great harm to the legitimate aspirations of the Palestinian people for a better future” (Quartet Statement of 16 July 2002, quoted). The historical résumé (Opinion paras. 70-78) is rather two-dimensional: it omits the West Bank placed under Jordanian sovereignty 1949-1967 (claim relinquished only in 1988, recognized by three States only), an omission that in fact strengthens Fourth Geneva applicability, since a territory claimed and controlled by one party is, once occupied by the other, “by definition occupied territory” of a High Contracting Party in the sense of the Fourth Geneva Convention (emphasis added by Kooijmans, PDF p.4; the text copy prints “High Contructing Purty” in this passage), as Israel’s own post-occupation Order (Opinion para. 93) recognized. Israel’s letter of 29 January asked the Court to look “beyond the request to the wider issues” and called resolution ES-10/14 “absolutely silent” on terrorist attacks; the Court may not have regard to a request’s origins or political history (Nuclear Weapons, para. 16, quoted), but it does not function in a void, and the Opinion should have reflected all interests throughout rather than only in para. 162.
  • III. Jurisdictional issues (PDF p.5-6, paras. 14-18): ES-10/14 was not ultra vires, but the practice on Charter Article 12, paragraph 1, cannot be described without resolution 377 A (V), which also had a substantive effect on the interpretation of the Council-Assembly relationship (Manin, quoted; de Wet cited): where a veto prevents a Council decision, the Council is no longer exercising its functions, and “the fact that a veto had been cast when the Security Council voted on a resolution dealing with the construction of the wall is determinative” (PDF p.6); no Council member treated the 20 October 2003 reconvening or resolution 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.
  • IV. Judicial propriety (PDF p.7-9, paras. 19-28): considerable hesitation — compliance will inevitably politicize the Court (three Quartet members abstained on ES-10/14 fearing interference with the peace process), but refusal would politicize it just as much, the risk having been the Assembly’s when it made the request; only strict adherence to the judicial function minimizes it. On purpose: the request recalls Judge Petrén’s Namibia dilemma — pressure first, legal question second — and the Nuclear Weapons usefulness answer (Opinion paras. 61-62) is not fully satisfactory; analysing the request’s purpose is a judicial necessity, and the request is far from “legally neutral” (Judge Dillard in Namibia, quoted), so the Court was duty bound to reconsider its content proprio motu, not by assuming what the Assembly “necessarily” must have assumed (Opinion para. 39). Para. 49’s finding that the subject-matter is not “only a bilateral matter between Israel and Palestine” is felicitous, since a matter of concern to the organized international community and a bilateral dispute over it can exist simultaneously; the Western Sahara quotation at para. 47 is less than helpful. Israel’s evidentiary argument fails: sufficiency is the Court’s own responsibility, though Israel’s choice not to address the merits is a matter for sincere regret.
  • V. Merits (PDF p.9-12, paras. 29-36): he shares the applicability findings (Hague Regulations, Fourth Geneva Convention, both 1966 Covenants, Convention on the Rights of the Child) and the breach findings, but regrets Opinion para. 137 lists no treaty provisions breached. He welcomes Israel’s assurances that the “fence” is temporary and not a border as recognition of legal commitments, while sharing the fait accompli concern. On self-determination, the Court should have left the issue to the political process whose Roadmap aim both sides subscribe to — “the emergence of an independent, democratic and viable Palestinian State living side by side in peace and security with Israel and its other neighbours” (Secretary-General’s dossier No. 70, quoted, PDF p.10): “But not every impediment to the exercise of a right is by definition a breach of that right or of the obligation to respect it, as the Court seems to conclude in paragraph 122” (PDF p.10); the Namibia and East Timor references at para. 88 do not show how the erga omnes right translates into obligations for a non-colonial State. On proportionality: the wall should also have been put to that test, intimately linked to military necessity in humanitarian law, and “these measures would not pass the proportionality test” (PDF p.11) — the route is manifestly disproportionate, as recent Israeli Supreme Court decisions seem to recognize. On self-defence: the Court’s State-attack statement (para. 139) is beside the point, because resolutions 1368 (2001) and 1373 (2001) recognize self-defence against international terrorism without ascribing it to a State — a new element Article 51’s terms do not exclude, whose implications cannot yet be assessed — but the decisive point is para. 139’s second part: those resolutions address international terrorism and have no immediate bearing on acts originating within territory under the victim State’s control, which Israel does not claim originate elsewhere, so Article 51 rightly cannot be invoked.
  • VI. Legal consequences (PDF p.12-16, paras. 37-51): he voted for (3)(B), (C) and (E) and agrees on consequences for Israel and the United Nations (Opinion paras. 149-153, 160). The request does not necessitate determining consequences for other States; the Namibia wording analogy is insufficient, so a special reason is needed, given at Opinion paras. 155-158 as erga omnes obligations — but why their violation should necessarily oblige third States is difficult to understand. Article 41 of the ILC Articles on State Responsibility (quoted at PDF p.13): its paragraph 1 duty to co-operate is, per the ILC commentary (“What is called for in the face of serious breaches is a joint and coordinated effort” by all States to counteract the effects of these breaches), an organizational effort encompassed in (3)(E), not individual obligations under (3)(D). Its paragraph 2 non-recognition duty is intelligible for the ILC’s examples — formal or quasi-formal legal claims, from “an attempted acquisition of sovereignty over territory through denial of the right of self-determination” to Manchuria, Kuwait, Namibia, Rhodesia and the Bantustans — but as applied to an illegal fact it is “an obligation without real substance” (PDF p.14), 144 States having already condemned the construction in resolution ES-10/13. He fully supports non-assistance, and would have added a reminder of humanitarian assistance to the victims (as in Namibia, para. 125). On common Article 1 — “The High Contracting Parties undertake to respect and to ensure respect for the present Convention” in all circumstances (emphasis added by Kooijmans) — the Court gives no ground for a third-State positive duty; Kalshoven’s study of the travaux préparatoires found “not … even the slightest awareness” among delegates of such a reading (quoted, PDF p.15); the ICRC commentaries are non-authoritative, the 1977 Protocols conference never dealt with third-State implications, and Nicaragua para. 220 states a duty of abstention, not a positive duty to ensure compliance. He does not know whether the Court’s scope is correct as positive law and sees no expected positive action beyond diplomatic démarches; for all these reasons he felt compelled to vote against operative subparagraph (3)(D) (PDF p.16).

Key passages

  • “Every State, including Israel, has the right and even the duty (as the Court says in paragraph 141) to respond to such acts in order to protect the life of its citizens” (PDF p.3).
  • “But not every impediment to the exercise of a right is by definition a breach of that right or of the obligation to respect it, as the Court seems to conclude in paragraph 122.” (PDF p.10)

Evidence the work relies on

The Advisory Opinion itself (paras. 39, 49, 50, 54, 61-62, 70-78, 88, 93, 122, 135-137, 139, 141, 146, 149-153, 155-159, 162, 163(3)(D)-(E)); Court jurisprudence (Nuclear Weapons 1996, Namibia 1971 including the separate opinions of Judges Petrén and Dillard, Western Sahara, East Timor, Nicaragua 1986, South West Africa line of cases as discussed); Charter Articles 12 and 51 and resolutions 377 A (V), ES-10/13, ES-10/14, 1368 (2001) and 1373 (2001); the Middle East Quartet Statement of 16 July 2002 and the Roadmap aim as quoted from the Secretary-General’s dossier No. 70; Israel’s Written Statement and its covering letter of 29 January; Article 41 of the ILC Articles on State Responsibility and the ILC commentary to Chapter III; Manin in Cot, La Charte des Nations Unies (2nd ed., 1981) and de Wet (2004) on Article 12; and Kalshoven’s 1999 study of common Article 1, all as cited in the reading notes.

Analysis

A concurring opinion on the merits that dissents only on third-State consequences, and argues rather than asserts: its (3)(D) critique proceeds through the ILC text and commentary and the travaux of common Article 1, conceding what it accepts (non-assistance subscribed to; a restricted reading of common Article 1 not favoured) and marking what it cannot verify (he simply does not know whether the scope the Court gives common Article 1 is correct as a statement of positive law, PDF p.16). Its balance argument is double-edged: fuller attention to attacks on Israeli civilians and to the territory’s 1949-1967 status is demanded in the name of judicial credibility, while both additions are shown to leave — or in the Jordanian-sovereignty case to strengthen — the Court’s illegality findings. Its self-determination and self-defence points identify genuine gaps in the Opinion’s reasoning (the unargued step from impediment to breach; the unaddressed post-2001 resolutions) while accepting both conclusions’ outcomes on other grounds.

Pieter Kooijmans, International Court of Justice, West Bank, East Jerusalem, Gaza, UN Security Council, Quartet, Israeli Supreme Court

Self-determination, Erga omnes obligations, Proportionality, Fait accompli, Fourth Geneva Convention, Quartet Roadmap

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.65-76 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. He stands with Separate opinion of Judge Higgins, Wall Advisory Opinion in rejecting the erga omnes route to third-State consequences while subscribing to non-assistance, and against Separate opinion of Judge Koroma, Wall Advisory Opinion and Separate opinion of Judge Elaraby, Wall Advisory Opinion, for whom the findings’ erga omnes character and the dispositif’s reach should have run further; Declaration of Judge Buergenthal, Wall Advisory Opinion joined him in voting against (3)(D), on different grounds.

Open questions

  • The headnote (PDF p.1) lists “Article 12, paragraph 2, of the Charter” among the topics, while the text at paras. 14-18 and the Opinion throughout discuss Article 12, paragraph 1; recorded as printed.
  • The Israeli Foreign Ministry letter is dated in the text only “29 January” (PDF p.4), with no year stated in that passage.
  • The text copy garbles several names and symbols (e.g. Namibia, resolutions ES-10/13 and ES-10/14); quotations on this page were checked against the passages as printed.

Coverage

PDF p.1-16 of 16, read in full

Graph View

Backlinks