The UN General
Assembly Requests a World Court Advisory Opinion On Israel's
Separation Barrier
By Pieter H.F. Bekker
December 2003
On December 8, 2003, the United Nations General
Assembly adopted Resolution ES-10/14 embodying
a request for an advisory opinion from the International
Court of Justice (ICJ or Court), the UN's principal
judicial organ located in The Hague, The Netherlands,
on the legal consequences arising from Israel's
construction of a barrier ("Barrier") separating
part of the West Bank from Israel. The text of
the request reads: "What are the legal consequences
arising from the construction of the wall being
built by Israel, the occupying Power, in the Occupied
Palestinian Territory, including in and around
East Jerusalem, as described in the report of
the Secretary-General, considering the rules and
principles of international law, including the
Fourth Geneva Convention of 1949, and relevant
Security Council and General Assembly resolutions?"
[1] The Assembly was meeting in its tenth
resumed emergency special session on the question
of Palestine. The recorded vote in the Assembly,
which consists of all 191 UN member states, was
90 in favor, to 8 against,
[2] with 74 abstentions. Nineteen member
states did not vote.
The request squarely puts before the Court
the sensitive issue of the balance between respect
for human rights (including the right to self-determination)
and the interests of security in the context
of terrorism. It raises the issue of the scope
of a state's margin of appreciation in response
to terrorism. If such response is made in alleged
self-defense, it raises the question what measures
may legitimately be taken under international
law and what limitations the principle of proportionality
recognized by international humanitarian law
places on states exercising the right of self-defense.
If it decides to entertain the Assembly's request
for an advisory opinion, the Court also may
have to decide the threshold question whether
the Geneva Conventions are applicable to Israel's
occupation of the Palestinian territories.
Israel has taken the position that, since Article
2 of the Fourth Geneva Convention says that
the Convention applies only to "occupation of
the territory of a High Contracting Party,"
and since the West Bank and East Jerusalem are
not within the recognized territory of any contracting
party, Israel is not legally bound to apply
the Convention on those places.
Before summarizing the Court's advisory power
and procedure, several factual issues pertaining
to the Barrier will be discussed.
I. The Barrier
A substantial portion of the Barrier's route,
which runs from north to south, runs several
miles inside the so-called Green Line - the
line that marks the de facto boundary
that was in place between Israel and the West
Bank as it was part of Jordan before the "Six
Day War" in 1967. As such, the Barrier will
incorporate occupied Palestinian land, including
a number of Palestinian villages. According
to the latest report of Special Rapporteur John
Dugard of the UN's Commission on Human Rights,
over 200,000 "Palestinians living between the
Wall and the Green Line will be effectively
cut off from their farmlands and workplaces,
schools, health clinics and other social services,"
likely leading to "a new generation of refugees
or internally displaced persons." [3] The report points out that "[s]ettlements
in East Jerusalem and the West Bank are the
principal beneficiaries of the Wall and it is
estimated that approximately half of the 400,000
settler population will be incorporated on the
Israeli side of the Wall."
[4]
The Barrier includes "buffer zones with trenches
and barbed wire, trace paths to register footprints,
an electric fence with sensors to warn of any
incursion, a two-lane patrol road and fortified
guard towers at regular intervals" with limited
crossings.
[5] When finished the Barrier will measure
over 400 miles at a projected cost of US$1.4
billion. [6] About one-fourth of the Barrier
has been completed to date, the remainder being
scheduled for completion by 2005.
Israel has defended the Barrier as a non-permanent
"security fence" the construction of which is
justified by Israel's right to exercise its
right to self-defense against suicide bombers
penetrating into Israeli territory from the
West Bank.
[7] In the view of the Palestinians, the
Barrier is designed to fix borders unilaterally
ahead of any future peace settlement with Israel
and is used as an excuse to establish Jewish
settlements in occupied Palestinian territory.
The adoption of the Assembly's request, the
draft of which was introduced by Kuwait on behalf
of the Group of the Arab States, follows the
release of a report by UN Secretary-General
Kofi Annan, on November 28, 2003, [8] stating that the Barrier "is not in compliance" with General
Assembly resolution ES-10/13, adopted by a vote
of 144-4 on October 21, 2003, demanding that
Israel halt its construction activities and
dismantle the existing parts of the Barrier.
The September 8 report of the UN Special Rapporteur
concluded that the "evidence strongly suggests
that Israel is determined to create facts on
the ground amounting to de facto annexation,"
which the report characterized as "conquest
in international law, . prohibited by the Charter
of the United Nations and the [1949 Geneva Convention
relative to the Protection of Civilian Persons
in Time of War]."
[9] Although the U.S. voted against the
December 8 resolution, the Bush Administration
has repeatedly called on Israel to cease construction
of the Barrier and announced in November that
it would reduce loan guarantees to Israel in
retaliation for its continued construction of
the Barrier.
II. The ICJ's Advisory Power and
Procedure
The ICJ has the power to give advisory opinions
on legal questions referred to it by any of
21 duly authorized United Nations organs and
agencies. [10] All of the principal organs of the United
Nations (with the exception of the Secretary-General
representing the UN Secretariat), the 16 UN
Specialized Agencies and the Interim Committee
of the General Assembly may submit requests
for advisory opinions. These are the only organizations
having "standing" in advisory proceedings before
the Court. The UN Security Council and General
Assembly have the authority to request advisory
opinions on any legal question, while the other
organizations may request advisory opinions
only on legal questions arising within the scope
of their activities. [11]
Advisory proceedings do not include any parties,
so that Israel will not be a defendant, or "respondent,"
in this particular proceeding.
The written request for an advisory opinion
was received by the ICJ Registry in The Hague
on December 10th,
[12] following which the Court or the presiding
judge will issue an Order inviting any state
entitled to appear before the ICJ and international
organizations selected by it to file written
statements concerning the request. It will
be interesting to see whether the Court also
will invite the Palestinian Authority, an entity
enjoying Observer status with the UN General
Assembly, to participate in this process. Such
participation would be a novelty in the Court's
history.
Those organizations and states that have submitted
written statements also may be authorized by
the court to submit written comments on each
other's statements in what constitutes a second
round of written pleadings. The Court subsequently
may decide to hold public hearings at which
those organizations and states that have submitted
written statements and comments and others may
address the Court. Such hearings usually take
only a few days.
The Court will first have to determine that
it has jurisdiction, under the UN Charter and
the ICJ Statute, to reply to the General Assembly's
request. The Court confirmed in connection
with the Assembly's most recent request for
advisory opinion that the Assembly has broad
competence to engage the Court. [13]
One possible ground for refusal to entertain
the Assembly's request would be a finding by
the Court that this request calls for a factual
investigation that cannot be undertaken without
the consent and cooperation of both Israel and
the Palestinian Authority. The Court's predecessor
once declined to give an advisory opinion on
the ground that the necessary investigation
in the case at hand required the consent and
participation of the two states involved in
the dispute that had given rise to the request
for an advisory opinion (Finland and Russia,
which at the time of the request was not a member
state of the League of Nations, the organization
requesting the advisory opinion).
[14] In his explanation after the vote
on Resolution ES-10/14, the representative of
the United Kingdom commented that his country
had abstained on the vote requesting an advisory
opinion "because it was inappropriate to take
such action without the consent of both parties."
[15] In this case, however, it is unclear
whether there is a dispute between two states.
The United Nations has not recognized Palestine
as a state being capable of granting or refusing
consent. Presumably, the Palestinian Authority
will be eager to participate in connection with
this advisory proceeding, having initiated the
process that resulted in the adoption of Resolution
ES-10/14.
The Court next must satisfy itself that the
Assembly's request relates to a legal question
within the meaning of the ICJ Statute and the
UN Charter, in this case, the compatibility
of Israel's construction of the Barrier with
international law. In this connection, the
Court has previously pointed out that the political
nature of any motives inspiring the request,
the political implications of any advisory opinion,
and any political aspects of the legal question
are irrelevant to the establishment of its jurisdiction
to give an opinion.
[16]
Even after it has established that it has competence
to issue an advisory opinion, the Court must
still consider whether it should exercise its
inherent discretionary power not to give an
opinion.
[17] According to the Court's consistent
case law, only "compelling reasons" can lead
it to refuse a request for an advisory opinion.
[18] The fact that a question put to the
Court did not relate to a specific dispute,
or was couched in abstract terms, has not been
found to be a compelling reason to decline to
give the opinion requested. In assessing its
power of appreciation, the Court also has confirmed
the exclusive right of the General Assembly
to determine the usefulness of an opinion in
the light of its own needs. [19] Specifically, the Court has
refused to consider the origin or political
history of a request, or the distribution of
votes underlying the adopted resolution. Therefore,
the fact that more than half of the members
of the General Assembly did not vote for Resolution
ES-10/14 is unlikely to affect the Court's consideration
of the request for advisory opinion included
in that resolution.
[20] Moreover, the fact that General Assembly
resolutions generally are non-binding under
the UN Charter has no effect whatsoever on the
Court's advisory jurisdiction.
After deliberations are held by the full Court
(consisting of 15 members from different nations)
immediately following the closing of any hearing,
the advisory opinion is then delivered at a
public sitting of the Court. The deliberative
phase alone usually takes several months.
Under the UN Charter and the ICJ Statute, advisory
opinions rendered by the Court are non-binding.
[21] This non-binding character does not
mean that advisory opinions are without legal
effect, because the legal reasoning embodied
in them reflects the Court's authoritative views
on important issues of international law and
in arriving at them, the Court follows essentially
the same rules and procedures that govern its
binding judgments delivered in contentious cases
submitted to it by sovereign states. An advisory
opinion derives its status and authority from
the fact that it is the official pronouncement
of the principal judicial organ of the United
Nations.
The ICJ has delivered only six advisory opinions
in the last 20 years. This is the first time
since 1998 that the Court will be requested
to render an opinion.
[22] In that instance, the Court issued
its Opinion within nine months from the date
on which it received the request.
The last time the General Assembly submitted
a request for a non-binding advisory opinion
was in December 1994, resulting in a July 1996
Opinion that was adopted by the ICJ president's
casting vote following a tie in votes. [23]
About the Author:
Pieter H.F. Bekker, Ph.D. (pbekker@whitecase.com)
practices international law and arbitration
at White & Case LLP in New York City, and
formerly served as a staff lawyer at the International
Court of Justice. He has written three books
("The Legal Position of Intergovernmental Organizations,"
"Commentaries on World Court Decisions (1987-1996)"
and "World Court Decisions at the Turn of the
Millennium (1997-2001)," all with Kluwer) and
co-chaired the 94th Annual Meeting
of the American Society of International Law
in April 2000. The views expressed here are
solely those of the author.
[1] See ICJ Communiqué 2003/42 (Dec. 10, 2003)
available from the ICJ's Web site, <www.icj-cij.org>.
[2] Australia, Ethiopia, Federated States of Micronesia,
Israel, Marshall Islands, Nauru, Palau, and
the United States.
[3] Report of the Special Rapporteur of the Commission
on Human Rights, John Dugard, on the situation
of human rights in the Palestinian territories
occupied by Israel since 1967, UN Doc.
E/CN.4/2004/6, at 2 (Sept. 8, 2003) [hereinafter
"Dugard Report"]. Prof. Dugard, a native
of South Africa, is professor of public international
law at Leiden University in The Netherlands
and a member of the International Law Commission
of the United Nations.
[9] Dugard Report, at 2. According to Art. 47 of
the Fourth Geneva Convention, protected persons
in an occupied territory shall not be deprived
of the benefits of the Convention "by any
annexation . of the occupied territory."
UN Security Council resolutions 478 (1980)
and 497 (1981) declared that Israel's actions
aimed at the annexation of East Jerusalem
and the Golan Heights are "null and void and
should not be recognized by states." Id.
at 8.
[10] See UN Charter Art. 96 and ICJ Statute
Arts. 65-68.
[13] SeeLegality of the Threat or Use
of Nuclear Weapons, 1996 I.C.J. Reports,
p. 226, paras. 11-12, Advisory Opinion of
July 8, 1996. For my case report, see 91
AJIL 126 (1997).
[14] SeeStatus of Eastern Carelia,
Permanent Court of International Justice,
Advisory Opinion, 1923 P.C.I.J. Series B,
No. 5.
[15] General Assembly Press Release GA/10216, at
9 (Dec. 8, 2003). The reference to "both
parties" presumably was to Israel and the
Palestinian Authority.
[16] Legality of the Threat or Use of Nuclear
Weapons, 1996 I.C.J. Reports, p.
226, at para. 13.
[17] Art. 65(1) of the ICJ Statute reads: "The Court
may give an advisory opinion on any
legal question at the request of whatever
body may be authorized by or in accordance
with the Charter of the United Nations to
make such a request." (emphasis added).
The question of the Court's exercise of its
discretionary power to give an advisory opinion
arises only after it has established that
it has jurisdiction. See Legality of the
Use by a State of Nuclear Weapons in Armed
Conflict, 1996 I.C.J. Reports p.
66, para. 14, Advisory Opinion of July 8,
1996. For my case report, see 91 AJIL 134
(1997).
[18] Legality of the Threat or Use of Nuclear
Weapons, 1996 I.C.J. Reports, p.
226, para. 16, Advisory Opinion of July 8,
1996.
[20] For example, in the most recent advisory proceeding
triggered by a request from the General Assembly,
the fact that the request was adopted by 78
votes in favor, to 43 against, with 38 abstentions,
was no ground for lack of jurisdiction. Id.
See also Paul Szasz's "Addendum: The Vote
in the General Assembly" to my case report
in the American Journal of International Law,
91 AJIL 133 (1997) (arguing that the Court
should consider proprio motu whether
a request concerns an Assembly decision on
"important questions" for which Article 18(2)
of the UN Charter requires a two-thirds majority
of votes).
[21] A provision contained in an international instrument
governing the request for an advisory opinion
may, however, explicitly confer binding force
on the advisory opinion for the parties involved.
SeeDifference Relating to Immunity
from Legal Process of a Special Rapporteur
of the Commission on Human Rights, 1999
I.C.J. Reports, p. 62, Advisory Opinion
of April 29, 1999. See also Charles
N. Brower & Pieter H.F. Bekker, Understanding
"Binding" Advisory Opinions of the International
Court of Justice, in: Liber Amicorum Judge
Shigeru Oda (N. Ando, E. McWhinney & R.
Wolfrum eds., 2002).
[22] The most recent advisory proceeding was Difference
Relating to Immunity from Legal Process of
a Special Rapporteur of the Commission on
Human Rights, in which a request from
the Economic and Social Council of the United
Nations was adopted on August 5, 1998 (ECOSOC
Decision 1998/297), and filed in the ICJ Registry
on August 10, 1998. For my case report, see
93 AJIL 913 (1999).
[23] SeeLegality of the Threat or Use
of Nuclear Weapons, 1996 I.C.J. Reports,
p. 226, Advisory Opinion of July 8, 1996.
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