ASIL Insights

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On July 9, 2004, the International Court of Justice (ICJ or Court), the UN's principal judicial organ seated in The Hague, The Netherlands, issued its Advisory Opinion on the legal consequences arising from Israel's construction of a barrier (the "wall") [1] separating part of the West Bank from Israel.  After unanimously upholding its jurisdiction, the ICJ, by 14 votes to 1 (Judge Thomas Buergenthal (U.S.) dissenting), found that there were no compelling reasons preventing it from ruling that Israel's building of the wall in the "Occupied Palestinian Territory" (including in and around East Jerusalem) violates various international obligations incumbent upon Israel, and that the wall must be dismantled immediately and Israel must make reparation for any damage caused. (Para. 163)

Observing that "the wall's sinuous route has been traced in such a way as to include within that area the great majority of Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem)," the ICJ also found that "the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law." [2] (Paras. 119-120)

On July 20, 2004, the UN General Assembly voted 150-6 to endorse the ICJ Opinion.

I.          Background

The ICJ decided to comply with a request of the UN General Assembly, embodied in resolution ES-10/14 of December 8, 2003.  The text of the request reads as follows:

"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?" [3]  

Forty-four UN member states (including Israel) and the United Nations, the League of Arab States, the Organization of the Islamic Conference, and Palestine submitted written statements to the ICJ by the deadline of January 30, 2004. [4]   While some participants questioned the propriety of the ICJ ruling on the matter, none voiced support for the legality of the wall.  Israel's Written Statement was confined to issues of jurisdiction and judicial propriety without addressing the substantive aspects of the question put to the ICJ.  On February 23-25, 2004, the Court heard the oral statements of 12 UN members states representing four different regions (South Africa, Algeria, Saudi Arabia, Bangladesh, Belize, Cuba, Indonesia, Jordan, Madagascar, Malaysia, Senegal, and Sudan), in addition to the League of Arab States, the Organization of the Islamic Conference, and Palestine.  Israel chose not to participate in the oral phase.

In its 64-page Advisory Opinion, the ICJ determined that it had jurisdiction to give the opinion requested by the General Assembly; concluded that there were no compelling reasons for it to use its discretionary power not to give an opinion; indicated the applicable international law, including international humanitarian law and human rights law; found that the wall and its associated regime of measures violate the applicable law; and indicated the legal consequences flowing from such illegality for Israel, for other states, and for the United Nations.

II.         Jurisdiction (Paras. 14-42)

The ICJ first determined that it had jurisdiction, under the UN Charter and the ICJ Statute, to reply to the General Assembly's request.  The Court rejected Israel's contention that the Assembly had exceeded its competence under the Charter given the active engagement of the UN Security Council with the Palestinian question.  Acknowledging that the Council, by resolution 1515 of November 19, 2003, had endorsed the "Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict," the Court pointed out that neither the Roadmap nor resolution 1515 contains any specific provision concerning the construction of the wall.  It also noted that a request for an advisory opinion is not in itself a "recommendation" by the General Assembly with regard to a dispute or situation as provided in Article 12(1) of the UN Charter [5] and that the Council's "primary responsibility for the maintenance of international peace and security" under Article 24 of the Charter is not necessarily exclusive. 

The ICJ was satisfied that the Tenth Emergency Special Session that had adopted the request for an advisory opinion was duly reconvened and could properly address the matter before the Court, under General Assembly resolution 377 A (V) (the Uniting for Peace resolution). [6]   In this regard, it noted that the Security Council had repeatedly failed to exercise its primary responsibility for the maintenance of international peace and security as a result of a negative vote (veto) of one of its permanent members and that the situation was one in which there appeared to be a threat to the peace, breach of the peace, or act of aggression.  In the Court's view, it was irrelevant that the Council had never considered a draft resolution proposing that the Council itself request an advisory opinion from the ICJ concerning Israel's construction of the wall.  The Court found that no UN rule had been identified that would be violated by the fact that the Tenth Emergency Special Session was reconvened while the regular session of the General Assembly was in progress.  It also confirmed that the resolution adopting the request for an advisory opinion must be presumed to have been validly adopted.

The ICJ further was satisfied that the Assembly's request related to a "legal question" within the meaning of the UN Charter and the ICJ Statute.  It observed that the question posed to it was directed to the legal consequences arising from a given factual situation considering the rules and principles of international law.  Being framed in terms of law and raising problems of international law, the Assembly's question was by its very nature susceptible of a reply based on law.  In the Court's view, the question put to it in relation to the legal consequences of the construction of the wall was not an abstract one.  The ICJ affirmed 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.

III.       Judicial propriety (Paras. 43-65)

The ICJ next examined whether there was any "compelling reason" for it to use its discretionary power under the ICJ Statute [7] to refrain from giving an opinion despite having jurisdiction to do so.  This question goes to the propriety of the exercise of the Court's judicial function.  The ICJ confirmed that it should in principle not decline to give an advisory opinion, given its responsibilities as the UN's principal judicial organ.  It noted that no request for an advisory opinion from any competent UN organ has ever been refused by the ICJ. 

As regards the argument that the request concerned a contentious matter between Israel and Palestine, in respect of which Israel has not consented to the exercise of that jurisdiction, the ICJ pointed out that the lack of such consent has no bearing on the Court's jurisdiction to give an advisory opinion, which is given not to the states, but to the organ that is entitled to request it.  The Court conceded, however, that lack of consent by interested states might be a discretionary ground to refrain from giving an opinion.  In the Court's view, the subject-matter of the General Assembly's request cannot be regarded as only a bilateral matter between Israel and Palestine.  The ICJ was satisfied that its opinion was requested on a question that is of particularly acute concern to the United Nations, and one which is located in a much broader frame of reference than a bilateral dispute.  The Court further emphasized that its opinion was to be given to the General Assembly, and not to a specific state or entity.

The ICJ rejected the argument advanced by the U.S. and certain other states that its opinion could impede a political, negotiated solution to the Israeli-Palestinian conflict and could undermine the scheme of the Roadmap, pointing out that it was not clear what influence its opinion might have on the negotiations envisaged in the Roadmap.  The Court saw its role as being limited to the determination of the legal consequences of the construction of the wall.

As regards the argument that the Court did not have at its disposal the requisite facts and evidence to enable it to reach its conclusions, the ICJ concluded from the material before it (including UN reports, written statements of various states and international organizations, and public Israeli sources) that it had before it sufficient information and evidence to enable it to give the requested opinion in conditions compatible with its judicial character.

IV.       Status of territory and applicable law (Paras. 70-106)

The ICJ went on to indicate the law applicable to determining whether or not Israel's construction of the wall in the Occupied Palestinian Territory breaches international law.  Regarding the status of the territory concerned, the Court noted that the territories situated between the line indicated in the 1949 Israel-Jordan Armistice Agreement (the "Green Line") and the former eastern boundary of Palestine (including East Jerusalem) under the League of Nations Mandate for Palestine were occupied territories in which Israel has had the status of occupying Power since 1967. 

Regarding the rules and principles of international law relevant in assessing the legality of the measures taken by Israel, the Court noted that these were found in the UN Charter and certain other treaties, in customary international law, and in the relevant resolutions adopted pursuant to the Charter by the General Assembly and the Security Council.  The Court relied on General Assembly resolution 2625 (XXV) of 1970 as an enunciation of two relevant principles of customary international law.  In that resolution the Assembly, inter alia, affirmed the illegality of the acquisition of territory resulting from the threat or use of force and affirmed the right of peoples in non-self-governing territories to self-determination.  The ICJ has recognized the latter as a right erga omnes, i.e., an inalienable right in the protection of which all states have a legal interest. [8]

As regards international humanitarian law, the ICJ found that both the 1949 Fourth Geneva Convention relative to the protection of civilian persons in times of war, [9] to which Israel is a party, and the 1907 Hague Regulations, [10] a source that is binding on Israel as customary international law, are applicable to Israel's occupation of the Palestinian territories.  Israel had 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 (which it regards as "disputed" territory).  Relying on the rules governing the interpretation of treaties, the Court concluded that the Fourth Geneva Convention is applicable de jure in the Occupied Palestinian Territory given the existence of an armed conflict that had arisen between Israel and Jordan, two contracting parties at the start of the 1967 war.  The ICJ noted that numerous resolutions of the General Assembly and the Security Council have affirmed the de jure applicability of the Fourth Geneva Convention and that Israel's Supreme Court found in a May 30, 2004 judgment that the Convention applied in Rafah which is situated in the Occupied Palestinian Territory.  The Court also acknowledged the significance of the International Committee of the Red Cross ("ICRC") as an authoritative interpreter of the Fourth Geneva Convention, and noted the ICRC's repeated affirmation that the Convention applies to the Occupied Palestinian Territory, including East Jerusalem.

As regards Israel's denial that the International Covenant on Civil and Political Rights ("ICCPR"), the International Covenant on Economic, Social and Cultural Rights ("ICESCR"), and the UN Convention on the Rights of the Child, all of which have been ratified by Israel, are applicable to the Occupied Palestinian Territory, the ICJ pointed out that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation included in those instruments.  Consequently, in answering the question put to it, the Court had to take into consideration both human rights law and international humanitarian law (as lex specialis).

V.        Scope of applicable treaties (Paras. 107-113)

Regarding the scope of application of the applicable treaties, the ICJ concluded that the ICCPR and the Convention on the Rights of the Child are applicable both to territories over which a state has sovereignty and to those over which that state exercises jurisdiction outside sovereign territory. [11]    

While the ICESCR lacks a provision specifying its scope of application, the ICJ found that it is not to be excluded that this treaty applies also to acts carried out by a state in the exercise of its jurisdiction outside its own territory. [12]   Observing that "the territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power," the ICJ concluded that Israel is bound by the provisions of these treaties and "is under an obligation not to raise any obstacle to the exercise of such rights in those fields where competence has been transferred to Palestinian authorities." (Para. 112)

VI.       Question of breach (Paras. 114-134)

Turning to the question of whether the construction of the wall has violated the rules and principles identified by it, the ICJ noted that Israel has argued that the wall's sole purpose is to enable it effectively to combat terrorist attacks launched from the West Bank and that the wall is a temporary measure.  The Court recalled that both the General Assembly and the Security Council in their resolutions have referred, with regard to Palestine, to the customary rule of the inadmissibility of the acquisition of territory by war.  In the Court's view, it is apparent that the wall's sinuous route has been traced in such a way as to include within the "Closed Area" between the Green Line and the wall the great majority of the Israeli settlements (and about 80% of the Israeli settlers) in the Occupied Palestinian Territory (including East Jerusalem).  According to the ICJ, the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law, in particular Article 49(6) of the Fourth Geneva Convention [13] and binding Security Council resolutions.  The Court considered that the construction of the wall and its associated regime of measures create a "fait accompli" on the ground that could well become permanent, in which case it would be tantamount to de facto annexation.  In the Court's view, the wall's construction, along with measures taken previously, "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.)

The ICJ found that the construction of the wall has led to the destruction or requisition of Palestinian properties under conditions that contravene the requirements of Articles 46 and 52 of the 1907 Hague Regulations and Article 53 of the Fourth Geneva Convention. [14]   In its view, the wall's construction, the establishment of the Closed Area, and the creation of enclaves have imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens) and have had serious repercussions for Palestinian agricultural production, access to health services, educational establishments and primary sources of water, and have changed the demographic composition of the territory concerned in violation of applicable provisions of international humanitarian law, [15] human rights treaties, [16] and Security Council resolutions. [17]  

VII.      Applicability of exceptions (Paras. 135-142)

With regard to the question whether the applicable international humanitarian law contains provisions enabling account to be taken of "military exigencies," the ICJ pointed out that the exception to Article 49(1) of the Fourth Geneva Convention prohibiting forcible transfers of population and deportations (except when "the security of the population or imperative military reasons so demand") does not apply to Article 49(6), which prohibits the occupying Power from deporting or transferring parts of its own civilian population into the territories it occupies.  Although Article 53 of the Fourth Geneva Convention concerning the destruction of personal property includes an exception "where such destruction is rendered absolutely necessary by military operations," the ICJ was not convinced that the destructions carried out by Israel contrary to the prohibition in Article 53 were rendered absolutely necessary by military operations.

As regards the applicable human rights conventions, the ICJ noted that Israel is bound to respect all the provisions of the ICCPR with the exception only of Article 9 relating to the right to freedom and security of the person. [18]   It said that although Article 12 permits some restrictions on freedom of movement, the restrictions not only must be directed to the ends authorized (i.e., the protection of national security, public order, public health or morals), but also must be necessary for the attainment of those ends.  Moreover, they must conform to the principle of proportionality and must be the least intrusive instrument available.  The ICJ concluded that these conditions were not met in this case.  Moreover, the restrictions on the economic, social and cultural rights of the affected Palestinians were not implemented "solely for the purpose of promoting the general welfare in a democratic society," as required by Article 4 of the ICESCR. 

In sum, the ICJ was not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives.  In its view, the wall, along the route chosen, and its associated regime "gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel" and "the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order." (Para. 137)

As regards the argument that the construction of the wall is consistent with Article 51 of the UN Charter confirming the inherent right to self-defense, the ICJ took the position that this provision has no relevance to this case, because Israel does not claim that the attacks against it are attributable to a foreign state (Israel does not recognize Palestinian statehood). [19]

The Court also said that the situation is different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001) adopted after the September 11 attacks, because the threat that Israel regards as justifying the construction of the wall originates within, and not outside, territory over which it exercises control. [20]   Finally, the Court was not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril that it has invoked as justification for that construction.

While recognizing that Israel "has the right, and indeed the duty, to respond [to deadly acts of violence against its civilian population] in order to protect the life of its citizens," the ICJ pointed out that the "measures taken are bound nonetheless to remain in conformity with applicable international law." (Para. 141.)

VIII.     Legal consequences (Paras. 143-160)

            A.        Legal consequences for Israel

Noting that Israel's violations trigger its responsibility under international law, the ICJ found that Israel: (i) is obliged to comply with the international obligations it has breached, including its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law; (ii) must ensure freedom of access to the Holy Places that came under its control following the 1967 war; (iii) has an obligation to put an end to the violation of its international obligations relating to its construction of the wall in the Occupied Palestinian Territory; (iv) immediately must cease the works of construction of the wall being built by it in the Occupied Palestinian Territory, including in and around East Jerusalem, and must dismantle those parts; (v) immediately must repeal or render ineffective all legislative and regulatory acts adopted with a view to the wall's construction, except insofar as those acts provide for Palestinian compensation; (vi) has the obligation to make reparation for the damage caused to all the natural or legal persons concerned, either by returning the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory or, if such restitution is materially impossible, to compensate the persons in question for the damage suffered, and (vii) has an obligation to compensate all natural or legal persons having suffered any form of material damage as a result of the wall's construction.

            B.         Legal consequences for states other than Israel

As regards the legal consequences for other states, the ICJ noted that the obligations violated by Israel include certain obligations erga omnes, namely, the right of the Palestinian people to self-determination, and certain of Israel's obligations under international humanitarian law, which are to be observed by all states because they constitute intransgressible principles of international customary law.  In the Court's view, all states are bound not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.  All states also are under an obligation not to render aid or assistance in maintaining the situation created by such construction, and they must see to it that any impediment, resulting from the wall's construction, to the exercise by the Palestinian people of its right to self-determination is brought to an end.  Article 1 of the Fourth Geneva Convention dictates that every state party to that Convention, whether or not it is a party to a specific conflict, must ensure that the requirements of the instruments in question are complied with.  Consequently, all the states parties to the Fourth Geneva Convention are under an obligation to ensure compliance by Israel with international humanitarian law as embodied in that Convention. [21]

            C.        Legal consequences for the United Nations

As regards the legal consequences for the United Nations, in the Court's view that organization, "and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion." (Para. 160)

Finally, the ICJ emphasized "the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli-Palestinian conflict, which continues to pose a threat to international peace and security, to a speedy solution," and it drew the attention of the General Assembly to the need to encourage recent efforts toward a negotiated solution leading to "the establishment of a Palestinian State, existing side by side with Israel and its other neighbours, with peace and security for all in the region." (Paras. 161-162.)

IX.       Legal status of advisory opinions

Under the UN Charter and the ICJ Statute, advisory opinions rendered by the ICJ in principle are non-binding.  This non-binding character does not mean that such opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law.  Moreover, in arriving at its opinion the ICJ follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases between 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 fact that the ICJ concluded that "the obligations violated by Israel include certain obligations erga omnes" (Para. 155) is particularly noteworthy because it puts the ICJ on record as concluding that Israel has violated an intransgressible right of the Palestinian people to self-determination and certain obligations under international humanitarian law.  All other states have a legal interest in protecting such obligations by peaceful means.

X.        Follow-up

On July 20, 2004, the Tenth Special Emergency Session of the UN General Assembly adopted resolution ES-10/18 in which the Assembly accepted the Advisory Opinion; demanded that Israel and all UN member states comply with the legal obligations spelled out in the Opinion; and requested that the UN Secretary-General set up a register of all damage caused to all the natural or legal persons in connection with Israel's construction of the wall in the Occupied Palestinian Territory.  The General Assembly also reaffirmed the right and duty of all states to take action in accordance with international law to counter deadly acts of violence against the civilian population.  The recorded vote in the Assembly was 150 in favor, to 6 against, with 10 abstentions. [22]   The Assembly has reserved the right to reconvene to consider further actions in the case of non-compliance, which could include non-binding sanctions.

See also this author's previous Insight, "The General Assembly Requests a World Court Advisory Opinion On Israel's Separation Barrier" (December 2003).

About the Author: 

Pieter H.F. Bekker, Ph.D. (pbekker@whitecase.com) practices public 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 94^th Annual Meeting of the American Society of International Law in April 2000.  The author served as Senior Counsel to Palestine in the ICJ proceeding on a leave of absence from his firm.  The views expressed herein are solely those of the author.

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