Summary
The separate opinion of Judge Abdul G. Koroma appended to the International Court of Justice Advisory Opinion of 9 July 2004 on the wall, concurring with the Court’s findings and stressing points the Opinion itself states more guardedly: “first and foremost”, construction of the wall has involved the annexation of parts of the occupied territory contrary to the non-acquisition of territory by force, occupation being by its essence temporary and bound to serve the population’s interests and the occupying Power’s military needs, so anything changing the territory’s character is illegal; the question — whether an occupying Power may unilaterally change an occupied territory’s character — is eminently legal and firmly within the Court’s advisory jurisdiction; self-determination entitles the Palestinian people to a State of their own as originally envisaged in resolution 181 (II); the international community holds a “sacred trust” for the former mandated territory and must not recognize any unilateral change in its status brought about by the wall; the Court’s findings are of an erga omnes character, binding on and of interest to all States; all parties must respect humanitarian law at all times; and it is now up to the General Assembly to use the findings toward a just and peaceful solution, not recriminations (Separate opinion of Judge Koroma, Wall Advisory Opinion, PDF p.1-3).
What the file is
The standalone ICJ PDF of the separate opinion (General List No. 131), 3 PDF pages, signed Abdul G. Koroma. The supplied text copy carries scattered OCR garbling (e.g. “ergu orrznes” for erga omnes at PDF p.3). 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.55-56 of that file); this page treats the standalone ICJ file as its own source.
Section by section
- Concurrence and annexation (PDF p.1, paras. 1-2): he concurs with the findings that the wall and its associated régime are contrary to international law, and stresses first and foremost that “the construction of the wall has involved the annexation of parts of the occupied territory by Israel, the occupying Power, contrary to the fundamental international law principle of the non-acquisition of territory by force” (PDF p.1; the text copy prints “First and foremost.” with a full stop). The Court has confirmed the territories as occupied, so Israel is not entitled to embark there on activities of a sovereign nature changing their status; the essence of occupation is that it is only temporary and should serve the interests of the population and the military needs of the occupying Power; accordingly anything which changes its character, such as the wall, will be illegal.
- Jurisdiction and judicial propriety (PDF p.1-2, para. 3): diversity of legal views on the question — the rights and obligations of an occupying Power and the remedies for their breach — is understandable, but the competence objection is not sustainable, as determined under Charter Art. 96 (functional co-operation on legal questions between the Court and the General Assembly), Statute Art. 65 (discretionary power) and Art. 68 (assimilation with contentious procedures), Rules of Court Art. 102, para. 2, and the settled jurisprudence of the Court; nor is the propriety objection, duly considered in terms of competence and fairness. The question is not about the Israeli-Palestinian conflict as such or its resolution, but whether it is permissible under existing law for an occupying Power, unilaterally, to bring about changes in the character of an occupied territory — an eminently legal question, susceptible of a legal response, a request for elucidation of the applicable law rather than by necessity an adjudication of a bilateral dispute; it was appropriate to exercise the advisory jurisdiction, whose basis is firmly anchored in the Court’s jurisprudence.
- The Court’s function and occupation law (PDF p.2, para. 4): the Court’s function is to ascertain and apply the law; applying the relevant rules of the international law of occupation, it found the territories occupied and thus not open to annexation, any annexation being a violation of international law and contrary to international peace; under the régime of occupation, division or partition of an occupied territory by the occupying Power is illegal; and in contemporary international law every State must refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.
- Self-determination (PDF p.2, para. 5): the Court held the right of self-determination, an established and recognized right, applies to the territory and to the Palestinian people, so its exercise entitles them “to a State of their own as originally envisaged in resolution 181 (II) and subsequently confirmed” (wording as recorded from the Court’s finding in the reading notes); the Court found construction of the wall will prevent the realization of that right and is therefore a violation of it.
- Humanitarian and human rights law (PDF p.2, para. 6): the Court rightly adjudged both régimes applicable to the occupied territories, Israel as occupying Power being obliged to respect the Palestinian population’s rights, and rightly held the wall’s construction violates the humanitarian and human rights régime; to end the violations it rightly called for immediate cessation of construction and payment of reparation for damages caused.
- Sacred trust and non-recognition (PDF p.2, para. 7): equally important is the finding that the international community as a whole bears an obligation towards the Palestinian people as a former mandated territory, on whose behalf it holds a “sacred trust”, not to recognize any unilateral change in the territory’s status brought about by construction of the wall.
- Erga omnes character (PDF p.2-3, para. 8): the Court’s findings are based on the authoritative rules of international law and are of an erga omnes character; the response is an authoritative answer to the question submitted; given all States are bound by those rules and have an interest in their observance, all States are subject to these findings.
- All parties and humanitarian law (PDF p.3, para. 9): just as important is the call on the parties to respect humanitarian law in the ongoing hostilities; while understandable that a prolonged occupation would engender resistance, it is incumbent on all parties to the conflict to respect international humanitarian law at all times.
- The General Assembly’s role — close (PDF p.3, para. 10): the Court has performed its role as the supreme arbiter of international legality and safeguard against illegal acts; it is now up to the General Assembly, discharging its Charter responsibilities, to treat the Opinion with the respect and seriousness it deserves, not for recriminations but to use the findings to bring about a just and peaceful solution to a conflict which has lasted far too long, caused enormous suffering to those directly involved and poisoned international relations in general.
Key passages
- “the construction of the wall has involved the annexation of parts of the occupied territory by Israel, the occupying Power, contrary to the fundamental international law principle of the non-acquisition of territory by force” (PDF p.1, introduced “First and foremost” — printed with a full stop after it in the text copy)
- “sacred trust” (PDF p.2)
Evidence the work relies on
The Advisory Opinion’s findings as Koroma restates them; Charter Art. 96; Statute Arts. 65 and 68; Rules of Court Art. 102, para. 2; the Court’s settled advisory jurisprudence (unnamed in the passage); resolution 181 (II); and the principles of non-acquisition of territory by force, the temporary character of occupation, self-determination and the sacred trust for a former mandated territory, all as cited in the reading notes. The opinion cites no statistics, testimony or documentary record beyond those instruments.
Analysis
The shortest of the three opinions in this batch and the most declaratory: it does not re-argue the record but restates the Court’s findings in stronger form at three points — annexation stated outright where the Opinion spoke of a fait accompli that could become tantamount to de facto annexation, self-determination stated as an entitlement to a State as envisaged in resolution 181 (II), and the findings themselves, rather than the obligations breached, characterized as erga omnes and as binding all States. Its jurisdictional section is its most worked part, anchoring the advisory competence in Charter, Statute, Rules and settled jurisprudence and framing the question as elucidation of the law rather than adjudication of the bilateral conflict.
People, organizations, places and events (links)
Abdul G. Koroma, International Court of Justice, East Jerusalem, West Bank, Gaza, UN General Assembly Resolution 181
Concepts (links)
Self-determination, Erga omnes obligations, Mandate for Palestine, Fourth Geneva Convention
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.55-56 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 is the counterweight in this batch to Separate opinion of Judge Kooijmans, Wall Advisory Opinion: where Kooijmans voted against (3)(D) because the erga omnes reasoning cannot carry third-State obligations and non-recognition of a fact is without real substance, Koroma treats the findings themselves as erga omnes and all States as subject to them; Separate opinion of Judge Al-Khasawneh, Wall Advisory Opinion likewise treats erga omnes obligations as unconditionally owed. With Separate opinion of Judge Elaraby, Wall Advisory Opinion he reads the wall directly as annexation, where Elaraby reaches the same direction through the Disengagement Plan.
Open questions
- Para. 5 states self-determination entitles the Palestinian people to a State “as originally envisaged in resolution 181 (II) and subsequently confirmed”; the passage does not name the confirming instrument.
- Para. 8 characterizes the Court’s findings, rather than the obligations breached, as erga omnes; whether that is a shorthand for the Opinion’s paras. 155-158 reasoning or a distinct claim is not spelled out in the opinion.
- The text copy garbles the Latin at PDF p.3 (“ergu orrznes”); quotations on this page were checked against the passages as printed.
Coverage
PDF p.1-3 of 3, read in full