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Separate opinion of Judge Owada, Wall Advisory Opinion

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Summary

The separate opinion of Judge Hisashi Owada appended to the International Court of Justice Advisory Opinion of 9 July 2004 on the wall: he concurs with the conclusions on jurisdiction and judicial propriety and on most merits points, while recording serious reservations about how the Court proceeded. Judicial propriety should be examined proprio motu, and not only as whether to comply with a request but as how jurisdiction is exercised: the existence of an underlying bilateral dispute between Israel and Palestine is no bar, but the Court drew too facile an analogy with Namibia, Western Sahara is the closest and still incomplete precedent, and the critical test is whether a reply would circumvent the consent principle, so the Court should offer objective findings of law to the General Assembly rather than adjudicate the dispute itself. Fairness in the administration of justice extends to advisory procedure, including the judge ad hoc question — Israel would have been justified in applying to choose one, Palestine’s inability to do so as a non-State for Statute purposes raising a further fairness question he leaves open — and to facts and law: the material on the wall’s humanitarian and socio-economic impact is ample and reliable, but material explaining the Israeli side is wanting, and the Court’s “not convinced” findings at Opinion paragraphs 137 and 140 in effect admit that absence, although he accepts the impacts are so overwhelming that no military-exigencies justification could preclude wrongfulness under the stringent Proportionality conditions. In closing, the Court should treat the specific question only, in balanced overall context: state any inadmissibility finding in the context of resolution 242’s twin principles, make an in-depth proprio motu effort to test Israel’s sole-purpose security argument, and underline the condemnation of the tragic circle of indiscriminate violence by both sides against innocent civilians (Separate opinion of Judge Owada, Wall Advisory Opinion, PDF p.1-12).

What the file is

The standalone ICJ PDF of the separate opinion (General List No. 131), 12 PDF pages, printed p.260-271 as computed from the printed page numbers shown in the text copy at PDF p.7 (266) and PDF p.8 (267), signed Hisashi Owada. The supplied text copy carries heavy OCR garbling, especially in the headnote and in names and some words (e.g. “Curelia” for Carelia, “Namihia” for Namibia at PDF p.5, plus “Numibia”, “Nanzibia” and “Nunzibiu” for Namibia elsewhere). 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.95-103 of that file); this page treats the standalone ICJ file as its own source.

Section by section

  • Concurrence and the proprio motu point (PDF p.1-2, paras. 1-2): concurrence as in the Summary; the Court’s reasons on jurisdiction and propriety are set out at Opinion paragraphs 24-67 and raise no major disagreement, but propriety is a matter the Court should examine proprio motu if necessary, in in-depth scrutiny of all particular circumstances, going beyond what participants argued if necessary — one such aspect being the implication of a bilateral dispute in the subject-matter.
  • League origins and assimilation (PDF p.2-3, paras. 3-5): the Permanent Court’s Statute contained no express advisory provisions; Covenant Article 14 was the legal basis. From the legislative history, the advisory purpose consisted from the beginning in aiding the League in the peaceful settlement of a concrete dispute before the Council, in particular under Covenant Articles 12 to 16 (Pomerance, cited). The 1922 Rules (Arts. 71-74) affirmed the “judicial character” of the advisory function; the 1927 Committee Report, quoted at length, records that the Court “deliberately and advisedly assimilated its advisory procedure to its contentious procedure” and that, where there are contending parties, “the difference between contentious cases and advisory cases is only nominal” (PDF p.2-3).
  • Eastern Carelia (PDF p.3-4, paras. 6-7): the Permanent Court declined jurisdiction there because Russia, not a League Member and not bound by the Covenant, had never given consent to a solution according to the Covenant’s methods — not because a dispute relating to the subject-matter existed between Finland and Russia. The question quoted is whether Articles 10 and 11 of the 1920 Finland-Russia Treaty of Peace and the annexed Russian Declaration on Eastern Carelia’s autonomy were engagements of an international character obliging Russia to Finland; the Council’s request followed Finland’s bringing the dispute to the League and Russia’s declining consent under Article 17 (whose text is given in a footnote, PDF p.4).
  • Continuity and the bilateral-dispute factor (PDF p.4-5, paras. 8-10): no drastic change was introduced in the ICJ Statute in this respect, and the advisory function has followed the predecessor’s course. The Court is right that a bilateral dispute should not be a bar, but its existence should be a factor in determining the extent to which, and the manner in which, jurisdiction is exercised; the analogy with past cases, especially Namibia, is too facile, and applying precedent principles automatically is not quite warranted.
  • Namibia distinguished; Western Sahara closest (PDF p.5-6, paras. 11-13): in Namibia any dispute was precisely between the United Nations and the State concerned, over the legal significance of the United Nations terminating the Mandate; here the situation centres on action of Israel vis-à-vis Palestine in relation to the Occupied Palestinian Territory, and an underlying dispute between the parties directly involved undeniably exists alongside the matter between the United Nations and Israel. Western Sahara is probably closest, since an underlying dispute clearly existed there, but even it is not completely analogous: its stated object — an opinion the Assembly deemed of assistance for the proper exercise of its functions concerning decolonization (I.C.J. Reports 1975, pp. 26-27, para. 39, quoted) — and in the present case the presumed objective of the General Assembly would not seem to be the latter so much as the former, settlement-oriented object. The critical test is whether giving a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent (Western Sahara, I.C.J. Reports 1975, p. 25, para. 33, emphasis added by Owada, PDF p.6; the passage is given without quotation marks on this page because the text copy garbles two words in it).
  • Two conclusions and judicial character (PDF p.6, paras. 14-15): the bilateral aspect should not prevent exercise of competence, but should bear on the whole proceedings — the Court should focus on offering objective findings of law to the extent necessary and useful to the General Assembly, rather than adjudicating the dispute’s subject-matter; and it should remain faithful to “the requirements of its judicial character” (PDF p.6), Western Sahara on Statute Article 65, paragraph 1, quoted.
  • Fairness, procedure and judge ad hoc (PDF p.7-8, paras. 16-19): fairness in the administration of justice is one such requirement, and the Court’s discretion embraces advisory procedure, not only whether to comply (Pomerance, footnote). Statute Article 68 and Rules Part IV (Arts. 102-109), in particular Article 102, paragraph 3 on a legal question actually pending between two or more States, are quoted. In Namibia South Africa’s judge ad hoc application was rejected by Order of 29 January 1971 over well-argued dissents; in Western Sahara Morocco was found entitled to choose a judge ad hoc and Mauritania’s similar request was rejected. Israel would have been justified in applying to choose a judge ad hoc and, for whatever reason, did not; Palestine, not recognized as a State for Statute purposes, could not do the same, which could itself raise a fairness question — an intractable but hypothetical problem on which he offers no conclusion, raised as an aspect the Court could have considered on propriety.
  • Absent party, law and facts (PDF p.8-9, paras. 20-21): absence does not deprive the Court of jurisdiction (Statute Article 53), but fairness must be maintained; Fisheries Jurisdiction on judicial notice of international law and Nicaragua on material, balance and equality of the parties are quoted at length. The principle applies to advisory as to contentious proceedings, arguably a fortiori, since in advisory proceedings no State, however interested, is obliged to appear, and an absent party cannot in the legal sense be said to forfeit the opportunity to counter its opponent’s factual allegations.
  • The missing Israeli-side material (PDF p.9-10, paras. 22-25): the Opinion’s paragraph 57 dossier passage is quoted; the humanitarian and socio-economic material is ample and its authenticity and reliability are not in doubt, but material explaining why and how construction as actually planned and implemented is necessary and appropriate on the Israeli side seems wanting, despite the same paragraph’s statement on Israel’s Written Statement and annexes. The Court’s paragraph 137 “not convinced” finding on necessity for its security objectives, and its paragraph 140 finding on “the material before it”, in effect admit that absence rather than rebut Israel’s arguments (Israel’s sole purpose being, at Opinion paragraph 80 via the Secretary-General’s report, “to halt infiltration into Israel from the central and northern West Bank”, PDF p.10). He does not dispute the conclusions on the available material: the impacts substantiated are such that construction would violate obligations under various instruments to which Israel is a Party, and are so overwhelming that no “military exigencies” justification, even if fortified by substantiated facts, could preclude wrongfulness under the stringent proportionality conditions. The crucial point is appearance as well as result: the Court should be extremely careful to be seen to maintain fairness throughout the proceedings.
  • Specific question, overall picture and resolution 242 (PDF p.10-11, paras. 26-29): the question (General Assembly resolution A/ES-10/L.16, symbol garbled in the text copy) concerns only the specific act of “the legal consequences arising from the construction of the wall being built by Israel” (PDF p.10), and the Court should treat “this question, and this question only, without expanding the scope” of its enquiry into the bigger Middle East peace question including “permanent status” (PDF p.10-11). Yet construction did not come about in a vacuum, and it is of cardinal importance to examine the specific question keeping in balance the overall picture. Resolution 242’s twin principles — 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 and political independence and right to live in peace within secure and recognized boundaries — quoted, form the basis of peace, and the Roadmap, endorsed by resolution 1515 (2003), is a blueprint on that basis. If the Court found construction impedes the principles, 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 Assembly the principle was couched in the twin context, both to be realized side by side.
  • Proprio motu effort owed; mutual violence (PDF p.11-12, paras. 30-31): on Israel’s sole-purpose security argument the Court confined itself to Opinion paragraph 140, quoted in full in the reading notes. Even if true as to motives, that argument would not justify construction as actually drawn up and implemented, which would still breach, inter alia, the Hague Regulations and the Fourth Geneva Convention unless cogent justifications precluded wrongfulness; but an in-depth effort could have been made proprio motu to ascertain the argument’s validity on facts and law and to present an objective picture in its entirety. Without going into causation or whether Palestinian suicide-bomber attacks could ground construction, the tragic circle of indiscriminate violence perpetrated by both sides against each other’s innocent civilian population is to be condemned and rejected as totally unacceptable, and — though not expressly part of the specific question — should have been underlined as an important segment of the Opinion, for balance. Signed Hisashi Owada.

Key passages

  • “the difference between contentious cases and advisory cases is only nominal” (1927 Committee Report, quoted, PDF p.2-3).
  • “this question, and this question only, without expanding the scope” (PDF p.10-11)
  • “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” (PDF p.12)

Evidence the work relies on

The Advisory Opinion itself (paras. 24-67, 57, 80, 117, 137, 140); Covenant Articles 12-17, in particular Article 14 and the Article 17 footnote text; Statute Articles 31, 53, 65 and 68 and Rules of Court Articles 71-74 (1922) and Part IV, Articles 102-109, in particular Article 102, paragraph 3; Permanent Court and Court jurisprudence (Status of Eastern Carelia, P.C.I.J. Series B, No. 5, pp. 6, 23-24, 27-28; the 1927 Committee Report, P.C.I.J. Series E, No. 4, p. 76; Namibia and its 29 January 1971 Order, I.C.J. Reports 1971, pp. 12, 308, 324; Western Sahara, I.C.J. Reports 1975, pp. 6, 21, 25, 26-27; Fisheries Jurisdiction, Merits, I.C.J. Reports 1974, p. 181; Nicaragua, Merits, I.C.J. Reports 1986, pp. 25-26, with Brazilian Loans and Nuclear Tests as cited there); Michla Pomerance, The Advisory Function of the International Court in the League and U.N. Eras (1973), pp. 9, 14, 281, in the footnotes; Israel’s argument and Written Statement as presented in the Opinion; the Secretary-General’s report and dossier; and Security Council resolutions 242 (1967) and 1515 (2003) and the Roadmap, all as cited in the reading notes.

Analysis

A procedure-focused concurrence: Owada concurs with the Court’s conclusions on the preliminary issues and on most of the points belonging to the merits, while having some disagreements on certain specific points (PDF p.1, para. 1), and argues the Court reasoned and proceeded as if the advisory/contentious assimilation his history establishes had no procedural consequences. His distinctions do the work — consent, not the mere existence of a dispute, was Eastern Carelia’s rationale; a United Nations-State controversy (Namibia) is not an underlying bilateral dispute (Western Sahara is closer, and still inexact); and a “not convinced” finding on incomplete material is, on his reading, an admission about the record rather than a rebuttal, which is why fairness must be seen as well as done. The closing balance argument is expressly bounded: the twin-principles context, the proprio motu test of the security argument and the condemnation of mutual violence are each presented as completing the picture within the specific question, and the security argument, even if substantiated, is accepted as unable to justify the construction as implemented.

Hisashi Owada, International Court of Justice, Permanent Court of International Justice, League of Nations, West Bank, Status of Eastern Carelia, Namibia Advisory Opinion, Western Sahara Advisory Opinion

Proportionality, Separation wall, Fourth Geneva Convention, Hague Regulations, Quartet Roadmap, UN Security Council Resolution 242

How it relates to other sources

The same opinion is appended in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (PDF p.95-103 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 Kooijmans, Wall Advisory Opinion and Separate opinion of Judge Higgins, Wall Advisory Opinion in faulting the Opinion’s balance and its oblique treatment of attacks on Israeli civilians, and with Declaration of Judge Buergenthal, Wall Advisory Opinion on the insufficiency of the factual record on the Israeli side, while unlike Buergenthal accepting the findings on the material available and voting with the Court; Separate opinion of Judge Elaraby, Wall Advisory Opinion and Separate opinion of Judge Koroma, Wall Advisory Opinion, by contrast, would have had the dispositif run further on the same record.

Open questions

  • Owada locates the Court’s reasons on jurisdiction and propriety at “paragraphs 24-67” (PDF p.1); the main Opinion’s propriety section, as recorded on the main Wall source page, ends at paragraph 65, with paragraphs 66-69 stating scope and order — recorded as printed, not reconciled.
  • Owada records that “the Russian Government declined the request from the Estonian Government” for consent to submit the Eastern Carelia question to the Council (PDF p.3), in a dispute the same paragraph describes as between Finland and Russia; the attribution is recorded as printed.
  • The General Assembly resolution symbol for the question is garbled in the text copy at PDF p.10 (“AIES-101 L.16”); it is given on this page in the form used in the main Wall file.
  • The text copy garbles several names and words throughout (e.g. Carelia, Namibia, Western Sahara); quotations on this page were shortened to passages clean in the copy, and the Western Sahara consent-test quotation is paraphrased in part for that reason.

Coverage

PDF p.1-12 of 12, read in full

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