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Home arrow ICJ Ruling on Separation Wall

ICJ Ruling on the Separation Wall
INTERNATIONAL COURT OF JUSTICE
YEAR 2004
9 July 2004
2004
9 July
General List
No. 131
LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL
IN THE OCCUPIED PALESTINIAN TERRITORY
Jurisdiction of the Court to give the advisory opinion requested.
Article 65, paragraph 1, of the Statute ⎯ Article 96, paragraph 1, of the Charter ⎯
Power of General Assembly to request advisory opinions ⎯ Activities of Assembly.
Events leading to the adoption of General Assembly resolution ES-10/14 requesting
the advisory opinion.
Contention that General Assembly acted ultra vires under the Charter ⎯ Article 12,
paragraph 1, and Article 24 of the Charter ⎯ United Nations practice concerning the
interpretation of Article 12, paragraph 1, of Charter ⎯ General Assembly did not exceed its
competence.
Request for opinion adopted by the Tenth Emergency Special Session of the General
Assembly ⎯ Session convened pursuant to resolution 377 A (V) (“Uniting for Peace”) ⎯
Conditions set by that resolution ⎯ Regularity of procedure followed.
Alleged lack of clarity of the terms of the question ⎯ Purportedly abstract nature of
the question ⎯ Political aspects of the question ⎯ Motives said to have inspired the
request and opinion’s possible implications ⎯ “Legal” nature of question unaffected.
Court having jurisdiction to give advisory opinion requested.
* *
Discretionary power of Court to decide whether it should give an opinion.
Article 65, paragraph 1, of Statute ⎯ Relevance of lack of consent of a State
concerned ⎯ Question cannot be regarded only as a bilateral matter between Israel and
Palestine but is directly of concern to the United Nations ⎯ Possible effects of opinion on a
political, negotiated solution to the Israeli-Palestinian conflict ⎯ Question representing
only one aspect of Israeli-Palestinian conflict ⎯ Sufficiency of information and evidence
available to Court ⎯ Useful purpose of opinion ⎯ Nullus commodum capere potest de sua
injuria propria ⎯ Opinion to be given to the General Assembly, not to a specific State or
entity.
No “compelling reason” for Court to use its discretionary power not to give an
advisory opinion.
* *
“Legal consequences” of the construction of a wall in the Occupied Palestinian
Territory, including in and around East Jerusalem ⎯ Scope of question posed ⎯ Request
for opinion limited to the legal consequences of the construction of those parts of the wall
situated in Occupied Palestinian Territory ⎯ Use of the term “wall”.
Historical background.
Description of the wall.
* *
Applicable law.
United Nations Charter ⎯ General Assembly resolution 2625 (XXV) ⎯ Illegality of
any territorial acquisition resulting from the threat or use of force ⎯ Right of peoples to
self-determination.
International humanitarian law ⎯ Regulations annexed to the Fourth Hague
Convention of 1907 ⎯ Fourth Geneva Convention of 1949 ⎯ Applicability of Fourth
Geneva Convention in the Occupied Palestinian Territory ⎯ Human rights law ⎯
International Covenant on Civil and Political Rights ⎯ International Covenant on
Economic, Social and Cultural Rights ⎯ Convention on the Rights of the Child ⎯
Relationship between international humanitarian law and human rights law ⎯
Applicability of human rights instruments outside national territory ⎯ Applicability of
those instruments in the Occupied Palestinian Territory.
* *
Settlements established by Israel in breach of international law in the Occupied
Palestinian Territory ⎯ Construction of the wall and its associated régime create a “fait
accompli” on the ground that could well become permanent ⎯ Risk of situation tantamount
to de facto annexation ⎯ Construction of the wall 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.
Applicable provisions of international humanitarian law and human rights
instruments relevant to the present case ⎯ Destruction and requisition of properties ⎯
Restrictions on freedom of movement of inhabitants of the Occupied Palestinian
Territory ⎯ Impediments to the exercise by those concerned of the right to work, to health,
to education and to an adequate standard of living ⎯ Demographic changes in the
Occupied Palestinian Territory ⎯ Provisions of international humanitarian law enabling
account to be taken of military exigencies ⎯ Clauses in human rights instruments
qualifying rights guaranteed or providing for derogation ⎯ Construction of the wall and its
associated régime cannot be justified by military exigencies or by the requirements of
national security or public order ⎯ Breach by Israel of various of its obligations under the
applicable provisions of international humanitarian law and human rights instruments.
Self-defence ⎯ Article 51 of the Charter ⎯ Attacks against Israel not imputable to a
foreign State ⎯ Threat invoked to justify the construction of the wall originating within a
territory over which Israel exercises control ⎯ Article 51 not relevant in the present case.
State of necessity ⎯ Customary international law ⎯ Conditions ⎯ Construction of
the wall not the only means to safeguard Israel’s interests against the peril invoked.
Construction of the wall and its associated régime are contrary to international law.
* *
Legal consequences of the violation by Israel of its obligations.
Israel’s international responsibility ⎯ Israel obliged to comply with the international
obligations it has breached by the construction of the wall ⎯ Israel obliged to put an end to
the violation of its international obligations ⎯ Obligation to cease forthwith the works of
construction of the wall, to dismantle it forthwith and to repeal or render ineffective
forthwith the legislative and regulatory acts relating to its construction, save where relevant
for compliance by Israel with its obligation to make reparation for the damage caused ⎯
Israel obliged to make reparation for the damage caused to all natural or legal persons
affected by construction of the wall.
Legal consequences for States other than Israel ⎯ Erga omnes character of certain
obligations violated by Israel ⎯ Obligation for all States not to recognize the illegal
situation resulting from construction of the wall and not to render aid or assistance in
maintaining the situation created by such construction ⎯ Obligation for all States, while
respecting the Charter and international law, to see to it that any impediment, resulting
from the construction of the wall, to the exercise by the Palestinian people of its right to
self-determination is brought to an end ⎯ Obligation for all States parties to the Fourth
Geneva Convention, while respecting the Charter and international law, to ensure
compliance by Israel with international humanitarian law as embodied in that
Convention ⎯ Need for the United Nations, and especially the General Assembly and the
Security Council, to consider what further action is required to bring to an end the illegal
situation resulting from the construction of the wall and its associated régime, taking due
account of the Advisory Opinion.
* *
Construction of the wall must be placed in a more general context ⎯ Obligation of
Israel and Palestine scrupulously to observe international humanitarian law ⎯
Implementation in good faith of all relevant Security Council resolutions, in particular
resolutions 242 (1967) and 338 (1973) ⎯ “Roadmap” ⎯ Need for efforts to be encouraged
with a view to achieving as soon as possible, on the basis of international law, a negotiated
solution to the outstanding problems and the establishment of a Palestinian State, with
peace and security for all in the region.
ADVISORY OPINION
Present: President SHI; Vice-President RANJEVA; Judges GUILLAUME, KOROMA,
VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOIJMANS,
REZEK, AL-KHASAWNEH, BUERGENTHAL, ELARABY, OWADA,
SIMMA, TOMKA; Registrar COUVREUR.
On the legal consequences of the construction of a wall in the Occupied Palestinian
Territory,
THE COURT,
Composed as above,
Gives the following Advisory Opinion:
1. The question on which the advisory opinion of the Court has been requested is set
forth in resolution ES-10/14 adopted by the General Assembly of the United Nations
(hereinafter the “General Assembly”) on 8 December 2003 at its Tenth Emergency Special
Session. By a letter dated 8 December 2003 and received in the Registry by facsimile on
10 December 2003, the original of which reached the Registry subsequently, the
Secretary-General of the United Nations officially communicated to the Court the decision
taken by the General Assembly to submit the question for an advisory opinion. Certified
true copies of the English and French versions of resolution ES-10/14 were enclosed with
the letter. The resolution reads as follows:
“The General Assembly,
Reaffirming its resolution ES-10/13 of 21 October 2003,
Guided by the principles of the Charter of the United Nations,
Aware of the established principle of international law on the
inadmissibility of the acquisition of territory by force,
Aware also that developing friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples is
among the purposes and principles of the Charter of the United Nations,
Recalling relevant General Assembly resolutions, including
resolution 181 (II) of 29 November 1947, which partitioned mandated Palestine
into two States, one Arab and one Jewish,
Recalling also the resolutions of the tenth emergency special session of
the General Assembly,
Recalling further relevant Security Council resolutions, including
resolutions 242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973,
267 (1969) of 3 July 1969, 298 (1971) of 25 September 1971, 446 (1979) of
22 March 1979, 452 (1979) of 20 July 1979, 465 (1980) of 1 March 1980,
476 (1980) of 30 June 1980, 478 (1980) of 20 August 1980, 904 (1994) of
18 March 1994, 1073 (1996) of 28 September 1996, 1397 (2002) of
12 March 2002 and 1515 (2003) of 19 November 2003,
Reaffirming the applicability of the Fourth Geneva Convention1 as well
as Additional Protocol I to the Geneva Conventions2 to the Occupied
Palestinian Territory, including East Jerusalem,
Recalling the Regulations annexed to the Hague Convention Respecting
the Laws and Customs of War on Land of 19073,
Welcoming the convening of the Conference of High Contracting Parties
to the Fourth Geneva Convention on measures to enforce the Convention in the
Occupied Palestinian Territory, including Jerusalem, at Geneva on
15 July 1999,
Expressing its support for the declaration adopted by the reconvened
Conference of High Contracting Parties at Geneva on 5 December 2001,
Recalling in particular relevant United Nations resolutions affirming that
Israeli settlements in the Occupied Palestinian Territory, including East
Jerusalem, are illegal and an obstacle to peace and to economic and social
development as well as those demanding the complete cessation of settlement
activities,
Recalling relevant United Nations resolutions affirming that actions
taken by Israel, the occupying Power, to change the status and demographic
composition of Occupied East Jerusalem have no legal validity and are null and
void,
Noting the agreements reached between the Government of Israel and the
Palestine Liberation Organization in the context of the Middle East peace
process,
Gravely concerned at the commencement and continuation of
construction by Israel, the occupying Power, of a wall in the Occupied
Palestinian Territory, including in and around East Jerusalem, which is in
departure from the Armistice Line of 1949 (Green Line) and which has
involved the confiscation and destruction of Palestinian land and resources, the
disruption of the lives of thousands of protected civilians and the de facto
annexation of large areas of territory, and underlining the unanimous
opposition by the international community to the construction of that wall,
Gravely concerned also at the even more devastating impact of the
projected parts of the wall on the Palestinian civilian population and on the
prospects for solving the Palestinian-Israeli conflict and establishing peace in
the region,
Welcoming the report of 8 September 2003 of the Special Rapporteur of
the Commission on Human Rights on the situation of human rights in the
Palestinian territories occupied by Israel since 19674, in particular the section
regarding the wall,
Affirming the necessity of ending the conflict on the basis of the
two-State solution of Israel and Palestine living side by side in peace and
security based on the Armistice Line of 1949, in accordance with relevant
Security Council and General Assembly resolutions,
Having received with appreciation the report of the Secretary-General,
submitted in accordance with resolution ES-10/135,
Bearing in mind that the passage of time further compounds the
difficulties on the ground, as Israel, the occupying Power, continues to refuse
to comply with international law vis-à-vis its construction of the
above-mentioned wall, with all its detrimental implications and consequences,
Decides, in accordance with Article 96 of the Charter of the United
Nations, to request the International Court of Justice, pursuant to Article 65 of
the Statute of the Court, to urgently render an advisory opinion on the
following question:
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?
_______________
1United Nations, Treaty Series, Vol. 75, No. 973.
2Ibid., Vol. 1125, No. 17512.
3See Carnegie Endowment for International Peace, The Hague Conventions and
Declarations of 1899 and 1907 (New York, Oxford University Press, 1915).
4E/CN.4/2004/6.
5A/ES-10/248.”
Also enclosed with the letter were the certified English and French texts of the report of the
Secretary-General dated 24 November 2003, prepared pursuant to General Assembly
resolution ES-10/13 (A/ES-10/248), to which resolution ES-10/14 makes reference.
2. By letters dated 10 December 2003, the Registrar notified the request for an
advisory opinion to all States entitled to appear before the Court, in accordance with
Article 66, paragraph 1, of the Statute.
3. By a letter dated 11 December 2003, the Government of Israel informed the Court
of its position on the request for an advisory opinion and on the procedure to be followed.
4. By an Order of 19 December 2003, the Court decided that the United Nations and
its Member States were likely, in accordance with Article 66, paragraph 2, of the Statute, to
be able to furnish information on all aspects raised by the question submitted to the Court
for an advisory opinion and fixed 30 January 2004 as the time-limit within which written
statements might be submitted to it on the question in accordance with Article 66,
paragraph 4, of the Statute. By the same Order, the Court further decided that, in the light
of resolution ES-10/14 and the report of the Secretary-General transmitted with the request,
and taking into account the fact that the General
Assembly had granted Palestine a special status of observer and that the latter was
co-sponsor of the draft resolution requesting the advisory opinion, Palestine might also
submit a written statement on the question within the above time-limit.
5. By the aforesaid Order, the Court also decided, in accordance with Article 105,
paragraph 4, of the Rules of Court, to hold public hearings during which oral statements and
comments might be presented to it by the United Nations and its Member States, regardless
of whether or not they had submitted written statements, and fixed 23 February 2004 as the
date for the opening of the said hearings. By the same Order, the Court decided that, for the
reasons set out above (see paragraph 4), Palestine might also take part in the hearings.
Lastly, it invited the United Nations and its Member States, as well as Palestine, to inform
the Registry, by 13 February 2004 at the latest, if they were intending to take part in the
above-mentioned hearings. By letters of 19 December 2004, the Registrar informed them of
the Court’s decisions and transmitted to them a copy of the Order.
6. Ruling on requests submitted subsequently by the League of Arab States and the
Organization of the Islamic Conference, the Court decided, in accordance with Article 66 of
its Statute, that those two international organizations were likely to be able to furnish
information on the question submitted to the Court, and that consequently they might for
that purpose submit written statements within the time-limit fixed by the Court in its Order
of 19 December 2003 and take part in the hearings.
7. Pursuant to Article 65, paragraph 2, of the Statute, the Secretary-General of the
United Nations communicated to the Court a dossier of documents likely to throw light
upon the question.
8. By a reasoned Order of 30 January 2004 regarding its composition in the case, the
Court decided that the matters brought to its attention by the Government of Israel in a letter
of 31 December 2003, and in a confidential letter of 15 January 2004 addressed to the
President pursuant to Article 34, paragraph 2, of the Rules of Court, were not such as to
preclude Judge Elaraby from sitting in the case.
9. Within the time-limit fixed by the Court for that purpose, written statements were
filed by, in order of their receipt: Guinea, Saudi Arabia, League of Arab States, Egypt,
Cameroon, Russian Federation, Australia, Palestine, United Nations, Jordan, Kuwait,
Lebanon, Canada, Syria, Switzerland, Israel, Yemen, United States of America, Morocco,
Indonesia, Organization of the Islamic Conference, France, Italy, Sudan, South Africa,
Germany, Japan, Norway, United Kingdom, Pakistan, Czech Republic, Greece, Ireland on
its own behalf, Ireland on behalf of the European Union, Cyprus, Brazil, Namibia, Malta,
Malaysia, Netherlands, Cuba, Sweden, Spain, Belgium, Palau, Federated States of
Micronesia, Marshall Islands, Senegal, Democratic People’s Republic of Korea. Upon
receipt of those statements, the Registrar transmitted copies thereof to the United Nations
and its Member States, to Palestine, to the League of Arab States and to the Organization of
the Islamic Conference.
10. Various communications were addressed to these latter by the Registry,
concerning in particular the measures taken for the organization of the oral proceedings. By
communications of 20 February 2004, the Registry transmitted a detailed timetable of the
hearings to those of the latter who, within the time-limit fixed for that purpose by the Court,
had expressed their intention of taking part in the aforementioned proceedings.
11. Pursuant to Article 106 of the Rules of Court, the Court decided to make the
written statements accessible to the public, with effect from the opening of the oral
proceedings.
12. In the course of hearings held from 23 to 25 February 2004, the Court heard oral
statements, in the following order, by:
For Palestine: H.E. Mr. Nasser Al-Kidwa, Ambassador, Permanent
Observer of Palestine to the United Nations,
Ms Stephanie Koury, Member, Negotiations Support
Unit, Counsel,
Mr. James Crawford, S.C., Whewell Professor of
International Law, University of Cambridge,
Member of the Institute of International Law,
Counsel and Advocate,
Mr. Georges Abi-Saab, Professor of International Law,
Graduate Institute of International Studies,
Geneva, Member of the Institute of International
Law, Counsel and Advocate,
Mr. Vaughan Lowe, Chichele Professor of International
Law, University of Oxford, Counsel and
Advocate,
Mr. Jean Salmon, Professor Emeritus of International
Law, Université libre de Bruxelles, Member of the
Institute of International Law, Counsel and
Advocate;
For the Republic of South Africa: H.E. Mr. Aziz Pahad, Deputy Minister for Foreign
Affairs, Head of Delegation,
Judge M. R. W. Madlanga, S.C.;
For the People’s Democratic Mr. Ahmed Laraba, Professor of International Law;
Republic of Algeria:
For the Kingdom of Saudi Arabia: H.E. Mr. Fawzi A. Shobokshi, Ambassador and
Permanent Representative of the Kingdom of
Saudi Arabia to the United Nations in New York,
Head of Delegation;
For the People’s Republic H.E. Mr. Liaquat Ali Choudhury, Ambassador of the
of Bangladesh: People’s Republic of Bangladesh to the Kingdom of
the Netherlands;
For Belize: Mr. Jean-Marc Sorel, Professor at the University of
Paris I (Panthéon-Sorbonne);
For the Republic of Cuba: H.E. Mr. Abelardo Moreno Fernández, Deputy Minister
for Foreign Affairs;
For the Republic of Indonesia: H.E. Mr. Mohammad Jusuf, Ambassador of the
Republic of Indonesia to the Kingdom of the
Netherlands, Head of Delegation;
For the Hashemite Kingdom H.R.H. Ambassador Zeid Ra’ad Zeid Al-Hussein,
of Jordan: Permanent Representative of the Hashemite Kingdom
of Jordan to the United Nations, New York, Head of Delegation,
Sir Arthur Watts, K.C.M.G., Q.C., Senior Legal Adviser
to the Government of the Hashemite Kingdom of
Jordan;
For the Republic of Madagascar: H.E. Mr. Alfred Rambeloson, Permanent
Representative of Madagascar to the Office of the
United Nations at Geneva and to the Specialized
Agencies, Head of Delegation;
For Malaysia: H.E. Datuk Seri Syed Hamid Albar, Foreign Minister of
Malaysia, Head of Delegation;
For the Republic of Senegal: H.E. Mr. Saliou Cissé, Ambassador of the Republic of
Senegal to the Kingdom of the Netherlands, Head
of Delegation;
For the Republic of the Sudan: H.E. Mr. Abuelgasim A. Idris, Ambassador of the
Republic of the Sudan to the Kingdom of the
Netherlands;
For the League of Arab States: Mr. Michael Bothe, Professor of Law, Head of the
Legal Team;
For the Organization of the H.E. Mr. Abdelouahed Belkeziz, Secretary General of
the
Islamic Conference: Organization of the Islamic Conference,
Ms Monique Chemillier-Gendreau, Professor of Public
Law, University of Paris VII-Denis Diderot, as
Counsel.
*
* *
13. When seised of a request for an advisory opinion, the Court must first consider
whether it has jurisdiction to give the opinion requested and whether, should the answer be
in the affirmative, there is any reason why it should decline to exercise any such jurisdiction
(see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996 (I), p. 232, para. 10).
* *
14. The Court will thus first address the question whether it possesses jurisdiction to
give the advisory opinion requested by the General Assembly on 8 December 2003. The
competence of the Court in this regard is based on Article 65, paragraph 1, of its Statute,
according to which 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”. The Court has already had occasion to indicate
that:
“It is . . . a precondition of the Court’s competence that the advisory
opinion be requested by an organ duly authorized to seek it under the Charter,
that it be requested on a legal question, and that, except in the case of the
General Assembly or the Security Council, that question should be one arising
within the scope of the activities of the requesting organ.” (Application for
Review of Judgement No. 273 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1982, pp. 333-334, para. 21.)
15. It is for the Court to satisfy itself that the request for an advisory opinion comes
from an organ or agency having competence to make it. In the present instance, the Court
notes that the General Assembly, which seeks the advisory opinion, is authorized to do so
by Article 96, paragraph 1, of the Charter, which provides: “The General Assembly or the
Security Council may request the International Court of Justice to give an advisory opinion
on any legal question.”
16. Although the above-mentioned provision states that the General Assembly may
seek an advisory opinion “on any legal question”, the Court has sometimes in the past given
certain indications as to the relationship between the question the subject of a request for an
advisory opinion and the activities of the General Assembly (Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 70; Legality of the
Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), pp. 232 and 233, paras. 11 and
12).
17. The Court will so proceed in the present case. The Court would observe that
Article 10 of the Charter has conferred upon the General Assembly a competence relating to
“any questions or any matters” within the scope of the Charter, and that Article 11,
paragraph 2, has specifically provided it with competence on “questions relating to the
maintenance of international peace and security brought before it by any Member of the
United Nations . . .” and to make recommendations under certain conditions fixed by those
Articles. As will be explained below, the question of the construction of the wall in the
Occupied Palestinian Territory was brought before
the General Assembly by a number of Member States in the context of the Tenth
Emergency Special Session of the Assembly, convened to deal with what the Assembly, in
its resolution ES-10/2 of 25 April 1997, considered to constitute a threat to international
peace and security.
*
18. Before further examining the problems of jurisdiction that have been raised in the
present proceedings, the Court considers it necessary to describe the events that led to the
adoption of resolution ES-10/14, by which the General Assembly requested an advisory
opinion on the legal consequences of the construction of the wall in the Occupied
Palestinian Territory.
19. The Tenth Emergency Special Session of the General Assembly, at which that
resolution was adopted, was first convened following the rejection by the Security Council,
on 7 March and 21 March 1997, as a result of negative votes by a permanent member, of
two draft resolutions concerning certain Israeli settlements in the Occupied Palestinian
Territory (see, respectively, S/1997/199 and S/PV.3747, and S/1997/241 and S/PV.3756).
By a letter of 31 March 1997, the Chairman of the Arab Group then requested “that an
emergency special session of the General Assembly be convened pursuant to
resolution 377 A (V) entitled ‘Uniting for Peace’” with a view to discussing “Illegal Israeli
actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory” (letter
dated 31 March 1997 from the Permanent Representative of Qatar to the United Nations
addressed to the Secretary-General, A/ES-10/1, 22 April 1997, Annex). The majority of
Members of the United Nations having concurred in this request, the first meeting of the
Tenth Emergency Special Session of the General Assembly took place on 24 April 1997
(see A/ES-10/1, 22 April 1997). Resolution ES-10/2 was adopted the following day; the
General Assembly thereby expressed its conviction that:
“the repeated violation by Israel, the occupying Power, of international law and
its failure to comply with relevant Security Council and General Assembly
resolutions and the agreements reached between the parties undermine the
Middle East peace process and constitute a threat to international peace and
security”,
and condemned the “illegal Israeli actions” in occupied East Jerusalem and the rest of the
Occupied Palestinian Territory, in particular the construction of settlements in that territory.
The Tenth Emergency Special Session was then adjourned temporarily and has since been
reconvened 11 times (on 15 July 1997, 13 November 1997, 17 March 1998,
5 February 1999, 18 October 2000, 20 December 2001, 7 May 2002, 5 August 2002,
19 September 2003, 20 October 2003 and 8 December 2003).
20. By a letter dated 9 October 2003, the Chairman of the Arab Group, on behalf of
the States Members of the League of Arab States, requested an immediate meeting of the
Security Council to consider the “grave and ongoing Israeli violations of international law,
including international humanitarian law, and to take the necessary measures in this regard”
(letter of 9 October 2003 from the Permanent Representative of the Syrian Arab Republic to
the United Nations to the President of the Security Council, S/2003/973, 9 October 2003).
This letter was accompanied by a draft resolution for consideration by the Council, which
condemned as illegal the construction by Israel of a wall in the Occupied Palestinian
Territory departing from the Armistice Line of 1949. The Security Council held its 4841st
and 4842nd meetings on 14 October 2003 to consider the item entitled “The situation in the
Middle East, including the Palestine question”. It then had before it another draft resolution
proposed on the same day by Guinea, Malaysia, Pakistan and the Syrian Arab Republic,
which also condemned the construction of the wall. This latter draft resolution was put to a
vote after an open debate and was not adopted owing to the negative vote of a permanent
member of the Council (S/PV.4841 and S/PV.4842).
On 15 October 2003, the Chairman of the Arab Group, on behalf of the States
Members of the League of Arab States, requested the resumption of the Tenth Emergency
Special Session of the General Assembly to consider the item of “Illegal Israeli actions in
Occupied East Jerusalem and the rest of the Occupied Palestinian Territory”
(A/ES-10/242); this request was supported by the Non-Aligned Movement (A/ES-10/243)
and the Organization of the Islamic Conference Group at the United Nations
(A/ES-10/244). The Tenth Emergency Special Session resumed its work on
20 October 2003.
21. On 27 October 2003, the General Assembly adopted resolution ES-10/13, by
which it demanded that “Israel stop and reverse the construction of the wall in the Occupied
Palestinian Territory, including in and around East Jerusalem, which is in departure of the
Armistice Line of 1949 and is in contradiction to relevant provisions of international law”
(para. 1). In paragraph 3, the Assembly requested the Secretary-General “to report on
compliance with the . . . resolution periodically, with the first report on compliance with
paragraph 1 [of that resolution] to be submitted within one month . . .”. The Tenth
Emergency Special Session was temporarily adjourned and, on 24 November 2003, the
report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13
(hereinafter the “report of the Secretary-General”) was issued (A/ES-10/248).
22. Meanwhile, on 19 November 2003, the Security Council adopted
resolution 1515 (2003), by which it “Endorse[d] the Quartet Performance-based Roadmap
to a Permanent Two-State Solution to the Israeli-Palestinian Conflict”. The Quartet consists
of representatives of the United States of America, the European Union, the Russian
Federation and the United Nations. That resolution
“Call[ed] on the parties to fulfil their obligations under the Roadmap in
cooperation with the Quartet and to achieve the vision of two States living side
by side in peace and security.”
Neither the “Roadmap” nor resolution 1515 (2003) contained any specific provision
concerning the construction of the wall, which was not discussed by the Security Council in
this context.
23. Nineteen days later, on 8 December 2003, the Tenth Emergency Special Session
of the General Assembly again resumed its work, following a new request by the Chairman
of the Arab Group, on behalf of the States Members of the League of Arab States, and
pursuant to resolution ES-10/13 (letter dated 1 December 2003 to the President of the
General Assembly from the Chargé d’affaires a.i. of the Permanent Mission of Kuwait to
the United Nations, A/ES-10/249, 2 December 2003). It was during the meeting convened
on that day that resolution ES-10/14 requesting the present Advisory Opinion was adopted.
*
24. Having thus recalled the sequence of events that led to the adoption of
resolution ES-10/14, the Court will now turn to the questions of jurisdiction that have been
raised in the present proceedings. First, Israel has alleged that, given the active engagement
of the Security Council with the situation in the Middle East, including the Palestinian
question, the General Assembly acted ultra vires under the Charter when it requested an
advisory opinion on the legal consequences of the construction of the wall in the Occupied
Palestinian Territory.
25. The Court has already indicated that the subject of the present request for an
advisory opinion falls within the competence of the General Assembly under the Charter
(see paragraphs 15-17 above). However, Article 12, paragraph 1, of the Charter provides
that:
“While the Security Council is exercising in respect of any dispute or
situation the functions assigned to it in the present Charter, the General
Assembly shall not make any recommendation with regard to that dispute or
situation unless the Security Council so requests.”
A request for an advisory opinion is not in itself a “recommendation” by the General
Assembly “with regard to [a] dispute or situation”. It has however been argued in this case
that the adoption by the General Assembly of resolution ES-10/14 was ultra vires as not in
accordance with Article 12. The Court thus considers that it is appropriate for it to examine
the significance of that Article, having regard to the relevant texts and the practice of the
United Nations.
26. Under Article 24 of the Charter the Security Council has “primary responsibility
for the maintenance of international peace and security”. In that regard it can impose on
States “an explicit obligation of compliance if for example it issues an order or
command . . . under Chapter VII” and can, to that end, “require enforcement by coercive
action” (Certain Expenses of
the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July
1962, I.C.J. Reports 1962, p. 163). However, the Court would emphasize that Article 24
refers to a primary, but not necessarily exclusive, competence. The General Assembly does
have the power, inter alia, under Article 14 of the Charter, to “recommend measures for the
peaceful adjustment” of various situations (Certain Expenses of the United Nations, ibid.,
p. 163). “[T]he only limitation which Article 14 imposes on the General Assembly is the
restriction found in Article 12, namely, that the Assembly should not recommend measures
while the Security Council is dealing with the same matter unless the Council requests it to
do so.” (Ibid.).
27. As regards the practice of the United Nations, both the General Assembly and the
Security Council initially interpreted and applied Article 12 to the effect that the Assembly
could not make a recommendation on a question concerning the maintenance of
international peace and security while the matter remained on the Council’s agenda. Thus
the Assembly during its fourth session refused to recommend certain measures on the
question of Indonesia, on the ground, inter alia, that the Council remained seised of the
matter (Official Records of the General Assembly, Fourth Session, Ad Hoc Political
Committee, Summary Records of Meetings, 27 September-7 December 1949, 56th Meeting,
3 December 1949, p. 339, para. 118). As for the Council, on a number of occasions it
deleted items from its agenda in order to enable the Assembly to deliberate on them (for
example, in respect of the Spanish question (Official Records of the Security Council, First
Year: Second Series, No. 21, 79th Meeting, 4 November 1946, p. 498), in connection with
incidents on the Greek border (Official Records of the Security Council, Second Year,
No. 89, 202nd Meeting, 15 September 1947, pp. 2404-2405) and in regard to the Island of
Taiwan (Formosa) (Official Records of the Security Council, Fifth Year, No. 48,
506th Meeting, 29 September 1950, p. 5)). In the case of the Republic of Korea, the
Council decided on 31 January 1951 to remove the relevant item from the list of matters of
which it was seised in order to enable the Assembly to deliberate on the matter (Official
Records of the Security Council, Sixth Year, S/PV.531, 531st Meeting, 31 January 1951,
pp. 11-12, para. 57).
However, this interpretation of Article 12 has evolved subsequently. Thus the
General Assembly deemed itself entitled in 1961 to adopt recommendations in the matter of
the Congo (resolutions 1955 (XV) and 1600 (XVI)) and in 1963 in respect of the Portuguese
colonies (resolution 1913 (XVIII)) while those cases still appeared on the Council’s agenda,
without the Council having adopted any recent resolution concerning them. In response to a
question posed by Peru during the Twenty-third session of the General Assembly, the Legal
Counsel of the United Nations confirmed that the Assembly interpreted the words “is
exercising the functions” in Article 12 of the Charter as meaning “is exercising the functions
at this moment” (Twenty-third General Assembly, Third Committee, 1637th meeting,
A/C.3/SR.1637, para. 9). Indeed, the Court notes that there has been an increasing tendency
over time for the General Assembly and the Security Council to deal in parallel with the
same matter concerning the maintenance of international peace and security (see, for
example, the matters involving Cyprus, South Africa, Angola, Southern Rhodesia and more
recently Bosnia and Herzegovina and Somalia). It is often the case that, while the Security
Council has tended to focus on the aspects of such matters related to international peace and
security, the General Assembly has taken a broader view, considering also their
humanitarian, social and economic aspects.
28. The Court considers that the accepted practice of the General Assembly, as it has
evolved, is consistent with Article 12, paragraph 1, of the Charter.
The Court is accordingly of the view that the General Assembly, in adopting
resolution ES-10/14, seeking an advisory opinion from the Court, did not contravene the
provisions of Article 12, paragraph 1, of the Charter. The Court concludes that by
submitting that request the General Assembly did not exceed its competence.
29. It has however been contended before the Court that the present request for an
advisory opinion did not fulfil the essential conditions set by resolution 377 A (V), under
which the Tenth Emergency Special Session was convened and has continued to act. In this
regard, it has been said, first, that “The Security Council was never seised of a draft
resolution proposing that the Council itself should request an advisory opinion from the
Court on the matters now in contention”, and, that specific issue having thus never been
brought before the Council, the General Assembly could not rely on any inaction by the
Council to make such a request. Secondly, it has been claimed that, in adopting
resolution 1515 (2003), which endorsed the “Roadmap”, before the adoption by the General
Assembly of resolution ES-10/14, the Security Council continued to exercise its
responsibility for the maintenance of international peace and security and that, as a result,
the General Assembly was not entitled to act in its place. The validity of the procedure
followed by the Tenth Emergency Special Session, especially the Session’s “rolling
character” and the fact that its meeting was convened to deliberate on the request for the
advisory opinion at the same time as the General Assembly was meeting in regular session,
has also been questioned.
30. The Court would recall that resolution 377 A (V) states that:
“if the Security Council, because of lack of unanimity of the permanent
members, fails to exercise its primary responsibility for the maintenance of
international peace and security in any case where there appears to be a threat
to the peace, breach of the peace, or act of aggression, the General Assembly
shall consider the matter immediately with a view to making appropriate
recommendations to Members for collective measures . . .”
The procedure provided for by that resolution is premised on two conditions, namely that
the Council has failed to exercise its primary responsibility for the maintenance of
international peace and security as a result of a negative vote of one or more permanent
members, and that the situation is one in which there appears to be a threat to the peace,
breach of the peace, or act of aggression. The Court must accordingly ascertain whether
these conditions were fulfilled as regards the convening of the Tenth Emergency Special
Session of the General Assembly, in particular at the time when the Assembly decided to
request an advisory opinion from the Court.
31. In the light of the sequence of events described in paragraphs 18 to 23 above, the
Court observes that, at the time when the Tenth Emergency Special Session was convened
in 1997, the Council had been unable to take a decision on the case of certain Israeli
settlements in the
Occupied Palestinian Territory, due to negative votes of a permanent member; and that, as
indicated in resolution ES-10/2 (see paragraph 19 above), there existed a threat to
international peace and security.
The Court further notes that, on 20 October 2003, the Tenth Emergency Special
Session of the General Assembly was reconvened on the same basis as in 1997 (see the
statements by the representatives of Palestine and Israel, A/ES-10/PV.21, pp. 2 and 5), after
the rejection by the Security Council, on 14 October 2003, again as a result of the negative
vote of a permanent member, of a draft resolution concerning the construction by Israel of
the wall in the Occupied Palestinian Territory. The Court considers that the Security
Council again failed to act as contemplated in resolution 377 A (V). It does not appear to
the Court that the situation in this regard changed between 20 October 2003 and
8 December 2003, since the Council neither discussed the construction of the wall nor
adopted any resolution in that connection. Thus, the Court is of the view that, up to
8 December 2003, the Council had not reconsidered the negative vote of 14 October 2003.
It follows that, during that period, the Tenth Emergency Special Session was duly
reconvened and could properly be seised, under resolution 377 A (V), of the matter now
before the Court.
32. The Court would also emphasize that, in the course of this Emergency Special
Session, the General Assembly could adopt any resolution falling within the subject-matter
for which the Session had been convened, and otherwise within its powers, including a
resolution seeking the Court’s opinion. It is irrelevant in that regard that no proposal had
been made to the Security Council to request such an opinion.
33. Turning now to alleged further procedural irregularities of the Tenth Emergency
Special Session, the Court does not consider that the “rolling” character of that Session,
namely the fact of its having been convened in April 1997 and reconvened 11 times since
then, has any relevance with regard to the validity of the request by the General Assembly.
The Court observes in that regard that the Seventh Emergency Special Session of the
General Assembly, having been convened on 22 July 1980, was subsequently reconvened
four times (on 20 April 1982, 25 June 1982, 16 August 1982 and 24 September 1982), and
that the validity of resolutions or decisions of the Assembly adopted under such
circumstances was never disputed. Nor has the validity of any previous resolutions adopted
during the Tenth Emergency Special Session been challenged.
34. The Court also notes the contention by Israel that it was improper to reconvene
the Tenth Emergency Special Session at a time when the regular Session of the General
Assembly was in progress. The Court considers that, while it may not have been originally
contemplated that it would be appropriate for the General Assembly to hold simultaneous
emergency and regular sessions, no rule of the Organization has been identified which
would be thereby violated, so as to render invalid the resolution adopting the present request
for an advisory opinion.
35. Finally, the Tenth Emergency Special Session appears to have been convened in
accordance with Rule 9 (b) of the Rules of Procedure of the General Assembly, and the
relevant meetings have been convened in pursuance of the applicable rules. As the Court
stated in its Advisory Opinion of 21 June 1971 concerning the Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), a “resolution of a properly
constituted organ of the United Nations which is passed in accordance with that organ’s
rules of procedure, and is declared by its President to have been so passed, must be
presumed to have been validly adopted” (I.C.J. Reports 1971, p. 22, para. 20). In view of
the foregoing, the Court cannot see any reason why that presumption is to be rebutted in the
present case.
*
36. The Court now turns to a further issue related to jurisdiction in the present
proceedings, namely the contention that the request for an advisory opinion by the General
Assembly is not on a “legal question” within the meaning of Article 96, paragraph 1, of the
Charter and Article 65, paragraph 1, of the Statute of the Court. It has been contended in
this regard that, for a question to constitute a “legal question” for the purposes of these two
provisions, it must be reasonably specific, since otherwise it would not be amenable to a
response by the Court. With regard to the request made in the present advisory proceedings,
it has been argued that it is not possible to determine with reasonable certainty the legal
meaning of the question asked of the Court for two reasons.
First, it has been argued that the question regarding the “legal consequences” of the
construction of the wall only allows for two possible interpretations, each of which would
lead to a course of action that is precluded for the Court. The question asked could first be
interpreted as a request for the Court to find that the construction of the wall is illegal, and
then to give its opinion on the legal consequences of that illegality. In this case, it has been
contended, the Court should decline to respond to the question asked for a variety of
reasons, some of which pertain to jurisdiction and others rather to the issue of propriety. As
regards jurisdiction, it is said that, if the General Assembly had wished to obtain the view of
the Court on the highly complex and sensitive question of the legality of the construction of
the wall, it should have expressly sought an opinion to that effect (cf. Exchange of Greek
and Turkish Populations, Advisory Opinion, 1925, P.C.I.J., Series B, No. 10, p. 17). A
second possible interpretation of the request, it is said, is that the Court should assume that
the construction of the wall is illegal, and then give its opinion on the legal consequences of
that assumed illegality. It has been contended that the Court should also decline to respond
to the question on this hypothesis, since the request would then be based on a questionable
assumption and since, in any event, it would be impossible to rule on the legal consequences
of illegality without specifying the nature of that illegality.
Secondly, it has been contended that the question asked of the Court is not of a
“legal” character because of its imprecision and abstract nature. In particular, it has been
argued in this regard that the question fails to specify whether the Court is being asked to
address legal
consequences for “the General Assembly or some other organ of the United Nations”,
“Member States of the United Nations”, “Israel”, “Palestine” or “some combination of the
above, or some different entity”.
37. As regards the alleged lack of clarity of the terms of the General Assembly’s
request and its effect on the “legal nature” of the question referred to the Court, the Court
observes that this question is directed to the legal consequences arising from a given factual
situation considering the rules and principles of international law, including the Geneva
Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949
(hereinafter the “Fourth Geneva Convention”) and relevant Security Council and General
Assembly resolutions. The question submitted by the General Assembly has thus, to use the
Court’s phrase in its Advisory Opinion on Western Sahara, “been framed in terms of law
and raise[s] problems of international law”; it is by its very nature susceptible of a reply
based on law; indeed it is scarcely susceptible of a reply otherwise than on the basis of law.
In the view of the Court, it is indeed a question of a legal character (see Western Sahara,
Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15).
38. The Court would point out that lack of clarity in the drafting of a question does
not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in
interpretation, and such necessary clarifications of interpretation have frequently been given
by the Court.
In the past, both the Permanent Court and the present Court have observed in some
cases that the wording of a request for an advisory opinion did not accurately state the
question on which the Court’s opinion was being sought (Interpretation of the
Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article IV), Advisory
Opinion, 1928, P.C.I.J., Series B, No. 16 (I), pp. 14-16), or did not correspond to the “true
legal question” under consideration (Interpretation of the Agreement of 25 March 1951
between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, pp. 87-89,
paras. 34-36). The Court noted in one case that “the question put to the Court is, on the face
of it, at once infelicitously expressed and vague” (Application for Review of Judgement
No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports
1982, p. 348, para. 46).
Consequently, the Court has often been required to broaden, interpret and even
reformulate the questions put (see the three Opinions cited above; see also Jaworzina,
Advisory Opinion, 1923, P.C.I.J., Series B, No. 8; Admissibility of Hearings of Petitioners
by the Committee on South West Africa, Advisory Opinion, I.C.J. Reports 1956, p. 25;
Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, I.C.J. Reports 1962, pp. 157-162).
In the present instance, the Court will only have to do what it has often done in the
past, namely “identify the existing principles and rules, interpret them and apply them . . .,
thus offering a reply to the question posed based on law” (Legality of the Threat or Use of
Nuclear Weapons, I.C.J. Reports 1996 (I), p. 234, para. 13).
39. In the present instance, if the General Assembly requests the Court to state the
“legal consequences” arising from the construction of the wall, the use of these terms
necessarily encompasses an assessment of whether that construction is or is not in breach of
certain rules and principles of international law. Thus, the Court is first called upon to
determine whether such rules and principles have been and are still being breached by the
construction of the wall along the planned route.
40. The Court does not consider that what is contended to be the abstract nature of the
question posed to it raises an issue of jurisdiction. Even when the matter was raised as an
issue of propriety rather than one of jurisdiction, in the case concerning the Legality of the
Threat or Use of Nuclear Weapons, the Court took the position that to contend that it should
not deal with a question couched in abstract terms is “a mere affirmation devoid of any
justification” and that “the Court may give an advisory opinion on any legal question,
abstract or otherwise” (I.C.J. Reports 1996 (I), p. 236, para. 15, referring to Conditions of
Admission of a State to Membership in the United Nations (Article 4 of the Charter),
Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 61; Effect of Awards of
Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion,
I.C.J. Reports 1954, p. 51; and Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 27, para. 40). In any
event, the Court considers that the question posed to it in relation to the legal consequences
of the construction of the wall is not an abstract one, and moreover that it would be for the
Court to determine for whom any such consequences arise.
41. Furthermore, the Court cannot accept the view, which has also been advanced in
the present proceedings, that it has no jurisdiction because of the “political” character of the
question posed. As is clear from its long-standing jurisprudence on this point, the Court
considers that the fact that a legal question also has political aspects,
“as, in the nature of things, is the case with so many questions which arise in
international life, does not suffice to deprive it of its character as a ‘legal
question’ and to ‘deprive the Court of a competence expressly conferred on it
by its Statute’(Application for Review of Judgement No. 158 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J, Reports 1973,
p. 172, para. 14). Whatever its political aspects, the Court cannot refuse to
admit the legal character of a question which invites it to discharge an
essentially judicial task, namely, an assessment of the legality of the possible
conduct of States with regard to the obligations imposed upon them by
international law (cf. Conditions of Admission of a State to Membership in the
United Nations (Article 4 of the Charter), Advisory Opinion, 1948, I.C.J.
Reports 1947-1948, pp. 61-62; Competence of the General Assembly for the
Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports
1950, pp. 6-7; Certain Expenses of the United Nations (Article 17,
paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155).”
(Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I),
p. 234, para. 13.)
In its Opinion concerning the Interpretation of the Agreement of 25 March 1951 between
the WHO and Egypt, the Court indeed emphasized that, “in situations in which political
considerations are prominent it may be particularly necessary for an international
organization to obtain an advisory opinion from the Court as to the legal principles
applicable with respect to the matter under debate . . .” (I.C.J. Reports 1980, p. 87,
para. 33). Moreover, the Court has affirmed in its Opinion on the Legality of the Threat or
Use of Nuclear Weapons that “the political nature of the motives which may be said to have
inspired the request and the political implications that the opinion given might have are of
no relevance in the establishment of its jurisdiction to give such an opinion” (I.C.J. Reports
1996 (I), p. 234, para. 13). The Court is of the view that there is no element in the present
proceedings which could lead it to conclude otherwise.
*
42. The Court accordingly has jurisdiction to give the advisory opinion requested by
resolution ES-10/14 of the General Assembly.
* *
43. It has been contended in the present proceedings, however, that the Court should
decline to exercise its jurisdiction because of the presence of specific aspects of the General
Assembly’s request that would render the exercise of the Court’s jurisdiction improper and
inconsistent with the Court’s judicial function.
44. The Court has recalled many times in the past that Article 65, paragraph 1, of its
Statute, which provides that “The Court may give an advisory opinion . . .” (emphasis
added), should be interpreted to mean that the Court has a discretionary power to decline to
give an advisory opinion even if the conditions of jurisdiction are met (Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 234,
para. 14). The Court however is mindful of the fact that its answer to a request for an
advisory opinion “represents its participation in the activities of the Organization, and, in
principle, should not be refused” (Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71; see also, for
example, Difference Relating to Immunity from Legal Process of a Special Rapporteur of
the Commission of Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), pp. 78-79,
para. 29.) Given its responsibilities as the “principal judicial organ of the United Nations”
(Article 92 of the Charter), the Court should in principle not decline to give an advisory
opinion. In accordance with its consistent jurisprudence, only “compelling reasons” should
lead the Court to refuse its opinion
(Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, I.C.J. Reports 1962, p. 155; see also, for example, Difference Relating to
Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights,
Advisory Opinion, I.C.J. Reports 1999 (I), pp. 78-79, para. 29.)
The present Court has never, in the exercise of this discretionary power, declined to
respond to a request for an advisory opinion. Its decision not to give the advisory opinion
on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict requested by
the World Health Organization was based on the Court’s lack of jurisdiction, and not on
considerations of judicial propriety (see I.C.J. Reports 1996 (I), p. 235, para. 14). Only on
one occasion did the Court’s predecessor, the Permanent Court of International Justice, take
the view that it should not reply to a question put to it (Status of Eastern Carelia, Advisory
Opinion, 1923, P.C.I.J., Series B, No. 5), but this was due to
“the very particular circumstances of the case, among which were that the
question directly concerned an already existing dispute, one of the States
parties to which was neither a party to the Statute of the Permanent Court nor a
Member of the League of Nations, objected to the proceedings, and refused to
take part in any way” (Legality of the Threat or Use of Nuclear Weapons, I.C.J.
Reports 1996 (I), pp. 235-236, para. 14).
45. These considerations do not release the Court from the duty to satisfy itself, each
time it is seised of a request for an opinion, as to the propriety of the exercise of its judicial
function, by reference to the criterion of “compelling reasons” as cited above. The Court
will accordingly examine in detail and in the light of its jurisprudence each of the arguments
presented to it in this regard.
*
46. The first such argument is to the effect that the Court should not exercise its
jurisdiction in the present case because the request concerns a contentious matter between
Israel and Palestine, in respect of which Israel has not consented to the exercise of that
jurisdiction. According to this view, the subject-matter of the question posed by the General
Assembly “is an integral part of the wider Israeli-Palestinian dispute concerning questions
of terrorism, security, borders, settlements, Jerusalem and other related matters”. Israel has
emphasized that it has never consented to the settlement of this wider dispute by the Court
or by any other means of compulsory adjudication; on the contrary, it contends that the
parties repeatedly agreed that these issues are to be settled by negotiation, with the
possibility of an agreement that recourse could be had to arbitration. It is accordingly
contended that the Court should decline to give the present Opinion, on the basis inter alia
of the precedent of the decision of the Permanent Court of International Justice on the Status
of Eastern Carelia.
47. The Court observes that the lack of consent to the Court’s contentious jurisdiction
by interested States has no bearing on the Court’s jurisdiction to give an advisory opinion.
In an Advisory Opinion of 1950, the Court explained that:
“The consent of States, parties to a dispute, is the basis of the Court’s
jurisdiction in contentious cases. The situation is different in regard to
advisory proceedings even where the Request for an Opinion relates to a legal
question actually pending between States. The Court’s reply is only of an
advisory character: as such, it has no binding force. It follows that no State,
whether a Member of the United Nations or not, can prevent the giving of an
Advisory Opinion which the United Nations considers to be desirable in order
to obtain enlightenment as to the course of action it should take. The Court’s
Opinion is given not to the States, but to the organ which is entitled to request
it; the reply of the Court, itself an ‘organ of the United Nations’, represents its
participation in the activities of the Organization, and, in principle, should not
be refused.” (Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71; see also
Western Sahara, I.C.J. Reports 1975, p. 24, para. 31.)
It followed from this that, in those proceedings, the Court did not refuse to respond to the
request for an advisory opinion on the ground that, in the particular circumstances, it lacked
jurisdiction. The Court did however examine the opposition of certain interested States to
the request by the General Assembly in the context of issues of judicial propriety.
Commenting on its 1950 decision, the Court explained in its Advisory Opinion on Western
Sahara that it had “Thus . . . recognized that lack of consent might constitute a ground for
declining to give the opinion requested if, in the circumstances of a given case,
considerations of judicial propriety should oblige the Court to refuse an opinion.” The
Court continued:
“In certain circumstances . . . the lack of consent of an interested State
may render the giving of an advisory opinion incompatible with the Court’s
judicial character. An instance of this would be when the circumstances
disclose that to give 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, paras. 32-33.)
In applying that principle to the request concerning Western Sahara, the Court found that a
legal controversy did indeed exist, but one which had arisen during the proceedings of the
General Assembly and in relation to matters with which the Assembly was dealing. It had
not arisen independently in bilateral relations (ibid., p. 25, para. 34).
48. As regards the request for an advisory opinion now before it, the Court
acknowledges that Israel and Palestine have expressed radically divergent views on the legal
consequences of Israel’s construction of the wall, on which the Court has been asked to
pronounce. However, as the Court has itself noted, “Differences of views . . . on legal
issues have existed in practically every advisory proceeding” (Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, p. 24, para. 34).
49. Furthermore, the Court does not consider that the subject-matter of the General
Assembly’s request can be regarded as only a bilateral matter between Israel and Palestine.
Given the powers and responsibilities of the United Nations in questions relating to
international peace
and security, it is the Court’s view that the construction of the wall must be deemed to be
directly of concern to the United Nations. The responsibility of the United Nations in this
matter also has its origin in the Mandate and the Partition Resolution concerning Palestine
(see paragraphs 70 and 71 below). This responsibility has been described by the General
Assembly as “a permanent responsibility towards the question of Palestine until the question
is resolved in all its aspects in a satisfactory manner in accordance with international
legitimacy” (General Assembly resolution 57/107 of 3 December 2002). Within the
institutional framework of the Organization, this responsibility has been manifested by the
adoption of many Security Council and General Assembly resolutions, and by the creation
of several subsidiary bodies specifically established to assist in the realization of the
inalienable rights of the Palestinian people.
50. The object of the request before the Court is to obtain from the Court an opinion
which the General Assembly deems of assistance to it for the proper exercise of its
functions. The opinion is requested on a question which 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. In the circumstances, the Court does not consider that to give an opinion
would have the effect of circumventing the principle of consent to judicial settlement, and
the Court accordingly cannot, in the exercise of its discretion, decline to give an opinion on
that ground.
*
51. The Court now turns to another argument raised in the present proceedings in
support of the view that it should decline to exercise its jurisdiction. Some participants have
argued that an advisory opinion from the Court on the legality of the wall and the legal
consequences of its construction could impede a political, negotiated solution to the
Israeli-Palestinian conflict. More particularly, it has been contended that such an opinion
could undermine the scheme of the “Roadmap” (see paragraph 22 above), which requires
Israel and Palestine to comply with certain obligations in various phases referred to therein.
The requested opinion, it has been alleged, could complicate the negotiations envisaged in
the “Roadmap”, and the Court should therefore exercise its discretion and decline to reply to
the question put.
This is a submission of a kind which the Court has already had to consider several
times in the past. For instance, in its Advisory opinion on the Legality of the Threat or Use
of Nuclear Weapons, the Court stated:
“It has . . . been submitted that a reply from the Court in this case might
adversely affect disarmament negotiations and would, therefore, be contrary to
the interest of the United Nations. The Court is aware that, no matter what
might be its conclusions in any opinion it might give, they would have
relevance for the continuing debate on the matter in the General Assembly and
would present an additional element
in the negotiations on the matter. Beyond that, the effect of the opinion is a
matter of appreciation. The Court has heard contrary positions advanced and
there are no evident criteria by which it can prefer one assessment to another.”
(I.C.J. Reports 1996 (I), p. 237, para. 17; see also Western Sahara, I.C.J.
Reports 1975, p. 37, para. 73.)
52. One participant in the present proceedings has indicated that the Court, if it were
to give a response to the request, should in any event do so keeping in mind
“two key aspects of the peace process: the fundamental principle that
permanent status issues must be resolved through negotiations; and the need
during the interim period for the parties to fulfill their security responsibilities
so that the peace process can succeed”.
53. The Court is conscious that the “Roadmap”, which was endorsed by the Security
Council in resolution 1515 (2003) (see paragraph 22 above), constitutes a negotiating
framework for the resolution of the Israeli-Palestinian conflict. It is not clear, however,
what influence the Court’s opinion might have on those negotiations: participants in the
present proceedings have expressed differing views in this regard. The Court cannot regard
this factor as a compelling reason to decline to exercise its jurisdiction.
54. It was also put to the Court by certain participants that the question of the
construction of the wall was only one aspect of the Israeli-Palestinian conflict, which could
not be properly addressed in the present proceedings. The Court does not however consider
this a reason for it to decline to reply to the question asked. The Court is indeed aware that
the question of the wall is part of a greater whole, and it would take this circumstance
carefully into account in any opinion it might give. At the same time, the question that the
General Assembly has chosen to ask of the Court is confined to the legal consequences of
the construction of the wall, and the Court would only examine other issues to the extent
that they might be necessary to its consideration of the question put to it.
*
55. Several participants in the proceedings have raised the further argument that the
Court should decline to exercise its jurisdiction because it does not have at its disposal the
requisite facts and evidence to enable it to reach its conclusions. In particular, Israel has
contended, referring to the Advisory Opinion on the Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, that the Court could not give an opinion on issues which
raise questions of fact that cannot be elucidated without hearing all parties to the conflict.
According to Israel, if the Court decided to give the requested opinion, it would be forced to
speculate about essential facts and make assumptions about arguments of law. More
specifically, Israel has argued that the Court could not rule on the legal consequences of the
construction of the wall without enquiring, first,
into the nature and scope of the security threat to which the wall is intended to respond and
the effectiveness of that response, and, second, into the impact of the construction for the
Palestinians. This task, which would already be difficult in a contentious case, would be
further complicated in an advisory proceeding, particularly since Israel alone possesses
much of the necessary information and has stated that it chooses not to address the merits.
Israel has concluded that the Court, confronted with factual issues impossible to clarify in
the present proceedings, should use its discretion and decline to comply with the request for
an advisory opinion.
56. The Court observes that the question whether the evidence available to it is
sufficient to give an advisory opinion must be decided in each particular instance. In its
Opinion concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania (I.C.J. Reports 1950, p. 72) and again in its Opinion on the Western Sahara, the
Court made it clear that what is decisive in these circumstances is “whether the Court has
before it sufficient information and evidence to enable it to arrive at a judicial conclusion
upon any disputed questions of fact the determination of which is necessary for it to give an
opinion in conditions compatible with its judicial character” (Western Sahara, I.C.J.
Reports 1975, pp. 28-29, para. 46). Thus, for instance, in the proceedings concerning the
Status of Eastern Carelia, the Permanent Court of International Justice decided to decline to
give an Opinion inter alia because the question put “raised a question of fact which could
not be elucidated without hearing both parties” (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 72; see Status of Eastern Carelia,
P.C.I.J., Series B, No. 5, p. 28). On the other hand, in the Western Sahara Opinion, the
Court observed that it had been provided with very extensive documentary evidence of the
relevant facts (I.C.J. Reports 1975, p. 29, para. 47).
57. In the present instance, the Court has at its disposal the report of the
Secretary-General, as well as a voluminous dossier submitted by him to the Court,
comprising not only detailed information on the route of the wall but also on its
humanitarian and socio-economic impact on the Palestinian population. The dossier
includes several reports based on on-site visits by special rapporteurs and competent organs
of the United Nations. The Secretary-General has further submitted to the Court a written
statement updating his report, which supplemented the information contained therein.
Moreover, numerous other participants have submitted to the Court written statements
which contain information relevant to a response to the question put by the General
Assembly. The Court notes in particular that Israel’s Written Statement, although limited to
issues of jurisdiction and judicial propriety, contained observations on other matters,
including Israel’s concerns in terms of security, and was accompanied by corresponding
annexes; many other documents issued by the Israeli Government on those matters are in
the public domain.
58. The Court finds that it has before it sufficient information and evidence to enable
it to give the advisory opinion requested by the General Assembly. Moreover, the
circumstance that others may evaluate and interpret these facts in a subjective or political
manner can be no argument
for a court of law to abdicate its judicial task. There is therefore in the present case no lack
of information such as to constitute a compelling reason for the Court to decline to give the
requested opinion.
*
59. In their written statements, some participants have also put forward the argument
that the Court should decline to give the requested opinion on the legal consequences of the
construction of the wall because such opinion would lack any useful purpose. They have
argued that the advisory opinions of the Court are to be seen as a means to enable an organ
or agency in need of legal clarification for its future action to obtain that clarification. In the
present instance, the argument continues, the General Assembly would not need an opinion
of the Court because it has already declared the construction of the wall to be illegal and has
already determined the legal consequences by demanding that Israel stop and reverse its
construction, and further, because the General Assembly has never made it clear how it
intended to use the opinion.
60. As is clear from the Court’s jurisprudence, advisory opinions have the purpose of
furnishing to the requesting organs the elements of law necessary for them in their action.
In its Opinion concerning Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, the Court observed: “The object of this request for
an Opinion is to guide the United Nations in respect of its own action.” (I.C.J. Reports
1951, p. 19.) Likewise, in its Opinion on the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), the Court noted: “The request is put forward by a
United Nations organ with reference to its own decisions and it seeks legal advice from the
Court on the consequences and implications of these decisions.” (I.C.J. Reports 1971,
p. 24, para. 32.) The Court found on another occasion that the advisory opinion it was to
give would “furnish the General Assembly with elements of a legal character relevant to its
further treatment of the decolonization of Western Sahara” (Western Sahara, I.C.J. Reports
1975, p. 37, para. 72).
61. With regard to the argument that the General Assembly has not made it clear what
use it would make of an advisory opinion on the wall, the Court would recall, as equally
relevant in the present proceedings, what it stated in its Opinion on the Legality of the
Threat or Use of Nuclear Weapons:
“Certain States have observed that the General Assembly has not
explained to the Court for what precise purposes it seeks the advisory opinion.
Nevertheless, it is not for the Court itself to purport to decide whether or not an
advisory opinion is needed by the Assembly for the performance of its
functions. The General Assembly has the right to decide for itself on the
usefulness of an opinion in the light of its own needs.” (I.C.J. Reports
1996 (I), p. 237, para. 16.)
62. It follows that the Court cannot decline to answer the question posed based on the
ground that its opinion would lack any useful purpose. The Court cannot substitute its
assessment of the usefulness of the opinion requested for that of the organ that seeks such
opinion, namely the General Assembly. Furthermore, and in any event, the Court considers
that the General Assembly has not yet determined all the possible consequences of its own
resolution. The Court’s task would be to determine in a comprehensive manner the legal
consequences of the construction of the wall, while the General Assembly ⎯ and the
Security Council ⎯ may then draw conclusions from the Court’s findings.
*
63. Lastly, the Court will turn to another argument advanced with regard to the
propriety of its giving an advisory opinion in the present proceedings. Israel has contended
that Palestine, given its responsibility for acts of violence against Israel and its population
which the wall is aimed at addressing, cannot seek from the Court a remedy for a situation
resulting from its own wrongdoing. In this context, Israel has invoked the maxim nullus
commodum capere potest de sua injuria propria, which it considers to be as relevant in
advisory proceedings as it is in contentious cases. Therefore, Israel concludes, good faith
and the principle of “clean hands” provide a compelling reason that should lead the Court to
refuse the General Assembly’s request.
64. The Court does not consider this argument to be pertinent. As was emphasized
earlier, it was the General Assembly which requested the advisory opinion, and the opinion
is to be given to the General Assembly, and not to a specific State or entity.
* *
65. In the light of the foregoing, the Court concludes not only that it has jurisdiction
to give an opinion on the question put to it by the General Assembly (see paragraph 42
above), but also that there is no compelling reason for it to use its discretionary power not to
give that opinion.
*
* *
66. The Court will now address the question put to it by the General Assembly in
resolution ES-10/14. The Court recalls that the question is 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?”
67. As explained in paragraph 82 below, the “wall” in question is a complex
construction, so that that term cannot be understood in a limited physical sense. However,
the other terms used, either by Israel (“fence”) or by the Secretary-General (“barrier”), are
no more accurate if understood in the physical sense. In this Opinion, the Court has
therefore chosen to use the terminology employed by the General Assembly.
The Court notes furthermore that the request of the General Assembly concerns the
legal consequences of the wall being built “in the Occupied Palestinian Territory, including
in and around East Jerusalem”. As also explained below (see paragraphs 79-84 below),
some parts of the complex are being built, or are planned to be built, on the territory of
Israel itself; the Court does not consider that it is called upon to examine the legal
consequences arising from the construction of those parts of the wall.
68. The question put by the General Assembly concerns the legal consequences of the
construction of the wall in the Occupied Palestinian Territory. However, in order to indicate
those consequences to the General Assembly the Court must first determine whether or not
the construction of that wall breaches international law (see paragraph 39 above). It will
therefore make this determination before dealing with the consequences of the construction.
69. To do so, the Court will first make a brief analysis of the status of the territory
concerned, and will then describe the works already constructed or in course of construction
in that territory. It will then indicate the applicable law before seeking to establish whether
that law has been breached.
* *
70. Palestine was part of the Ottoman Empire. At the end of the First World War, a
class “A” Mandate for Palestine was entrusted to Great Britain by the League of Nations,
pursuant to paragraph 4 of Article 22 of the Covenant, which provided that:
“Certain communities, formerly belonging to the Turkish Empire have
reached a stage of development where their existence as independent nations
can be provisionally recognized subject to the rendering of administrative
advice and assistance by a Mandatory until such time as they are able to stand
alone.”
The Court recalls that in its Advisory Opinion on the International Status of
South West Africa, speaking of mandates in general, it observed that “The Mandate was
created, in the interest of the inhabitants of the territory, and of humanity in general, as an
international institution with an international object ⎯ a sacred trust of civilization.” (I.C.J.
Reports 1950, p. 132.) The Court also held in this regard that “two principles were
considered to be of paramount importance: the principle of non-annexation and the
principle that the well-being and development of . . . peoples [not yet able to govern
themselves] form[ed] ‘a sacred trust of civilization’” (ibid., p. 131).
The territorial boundaries of the Mandate for Palestine were laid down by various
instruments, in particular on the eastern border by a British memorandum of
16 September 1922 and an Anglo-Transjordanian Treaty of 20 February 1928.
71. In 1947 the United Kingdom announced its intention to complete evacuation of
the mandated territory by 1 August 1948, subsequently advancing that date to
15 May 1948. In the meantime, the General Assembly had on 29 November 1947 adopted
resolution 181 (II) on the future government of Palestine, which “Recommends to the United
Kingdom . . . and to all other Members of the United Nations the adoption and
implementation . . . of the Plan of Partition” of the territory, as set forth in the resolution,
between two independent States, one Arab, the other Jewish, as well as the creation of a
special international régime for the City of Jerusalem. The Arab population of Palestine and
the Arab States rejected this plan, contending that it was unbalanced; on 14 May 1948,
Israel proclaimed its independence on the strength of the General Assembly resolution;
armed conflict then broke out between Israel and a number of Arab States and the Plan of
Partition was not implemented.
72. By resolution 62 (1948) of 16 November 1948, the Security Council decided that
“an armistice shall be established in all sectors of Palestine” and called upon the parties
directly involved in the conflict to seek agreement to this end. In conformity with this
decision, general armistice agreements were concluded in 1949 between Israel and the
neighbouring States through mediation by the United Nations. In particular, one such
agreement was signed in Rhodes on 3 April 1949 between Israel and Jordan. Articles V and
VI of that Agreement fixed the armistice demarcation line between Israeli and Arab forces
(often later called the “Green Line” owing to the colour used for it on maps; hereinafter the
“Green Line”). Article III, paragraph 2, provided that “No element of the . . . military or
para-military forces of either Party . . . shall advance beyond or pass over for any purpose
whatsoever the Armistice Demarcation Lines . . .” It was agreed in Article VI, paragraph 8,
that these provisions would not be “interpreted as prejudicing, in any sense, an ultimate
political settlement between the Parties”. It was also stated that “the Armistice
Demarcation Lines defined in articles V and VI of [the] Agreement [were] agreed upon by
the Parties without prejudice to future territorial settlements or boundary lines or to claims
of either Party relating thereto”. The Demarcation Line was subject to such rectification as
might be agreed upon by the parties.
73. In the 1967 armed conflict, Israeli forces occupied all the territories which had
constituted Palestine under British Mandate (including those known as the West Bank, lying
to the east of the Green Line).
74. On 22 November 1967, the Security Council unanimously adopted
resolution 242 (1967), which emphasized the inadmissibility of acquisition of territory by
war and called for the “Withdrawal of Israel armed forces from territories occupied in the
recent conflict”, and “Termination of all claims or states of belligerency”.
75. From 1967 onwards, Israel took a number of measures in these territories aimed at
changing the status of the City of Jerusalem. The Security Council, after recalling on a
number of occasions “the principle that acquisition of territory by military conquest is
inadmissible”, condemned those measures and, by resolution 298 (1971) of
25 September 1971, confirmed in the clearest possible terms that:
“all legislative and administrative actions taken by Israel to change the status of
the City of Jerusalem, including expropriation of land and properties, transfer
of populations and legislation aimed at the incorporation of the occupied
section, are totally invalid and cannot change that status”.
Later, following the adoption by Israel on 30 July 1980 of the Basic Law making
Jerusalem the “complete and united” capital of Israel, the Security Council, by
resolution 478 (1980) of 20 August 1980, stated that the enactment of that Law constituted a
violation of international law and that “all legislative and administrative measures and
actions taken by Israel, the occupying Power, which have altered or purport to alter the
character and status of the Holy City of Jerusalem . . . are null and void”. It further decided
“not to recognize the ‘basic law’ and such other actions by Israel that, as a result of this law,
seek to alter the character and status of Jerusalem”.
76. Subsequently, a peace treaty was signed on 26 October 1994 between Israel and
Jordan. That treaty fixed the boundary between the two States “with reference to the
boundary definition under the Mandate as is shown in Annex I (a) . . . without prejudice to
the status of any territories that came under Israeli military government control in 1967”
(Article 3, paragraphs 1 and 2). Annex I provided the corresponding maps and added that,
with regard to the “territory that came under Israeli military government control in 1967”,
the line indicated “is the administrative boundary” with Jordan.
77. Lastly, a number of agreements have been signed since 1993 between Israel and
the Palestine Liberation Organization imposing various obligations on each party. Those
agreements inter alia required Israel to transfer to Palestinian authorities certain powers and
responsibilities exercised in the Occupied Palestinian Territory by its military authorities
and civil administration. Such transfers have taken place, but, as a result of subsequent
events, they remained partial and limited.
78. The Court would observe that, under customary international law as reflected (see
paragraph 89 below) in Article 42 of the Regulations Respecting the Laws and Customs of
War on Land annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter “the
Hague Regulations of 1907”), territory is considered occupied when it is actually placed
under the authority of the hostile army, and the occupation extends only to the territory
where such authority has been established and can be exercised.
The territories situated between the Green Line (see paragraph 72 above) and the
former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967
during the armed conflict between Israel and Jordan. Under customary international law,
these were therefore occupied territories in which Israel had the status of occupying Power.
Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done
nothing to alter this situation. All these territories (including East Jerusalem) remain
occupied territories and Israel has continued to have the status of occupying Power.
*
79. It is essentially in these territories that Israel has constructed or plans to construct
the works described in the report of the Secretary-General. The Court will now describe
those works, basing itself on that report. For developments subsequent to the publication of
that report, the Court will refer to complementary information contained in the Written
Statement of the United Nations, which was intended by the Secretary-General to
supplement his report (hereinafter “Written Statement of the Secretary-General”).
80. The report of the Secretary-General states that “The Government of Israel has
since 1996 considered plans to halt infiltration into Israel from the central and northern
West Bank . . .” (Para. 4.) According to that report, a plan of this type was approved for the
first time by the Israeli Cabinet in July 2001. Then, on 14 April 2002, the Cabinet adopted a
decision for the construction of works, forming what Israel describes as a “security fence”,
80 kilometres in length, in three areas of the West Bank.
The project was taken a stage further when, on 23 June 2002, the Israeli Cabinet
approved the first phase of the construction of a “continuous fence” in the West Bank
(including East Jerusalem). On 14 August 2002, it adopted the line of that “fence” for the
work in Phase A, with a view to the construction of a complex 123 kilometres long in the
northern West Bank, running
from the Salem checkpoint (north of Jenin) to the settlement at Elkana. Phase B of the work
was approved in December 2002. It entailed a stretch of some 40 kilometres running east
from the Salem checkpoint towards Beth Shean along the northern part of the Green Line as
far as the Jordan Valley. Furthermore, on 1 October 2003, the Israeli Cabinet approved a
full route, which, according to the report of the Secretary-General, “will form one
continuous line stretching 720 kilometres along the West Bank”. A map showing
completed and planned sections was posted on the Israeli Ministry of Defence website on
23 October 2003. According to the particulars provided on that map, a continuous
section (Phase C) encompassing a number of large settlements will link the north-western
end of the “security fence” built around Jerusalem with the southern point of Phase A
construction at Elkana. According to the same map, the “security fence” will run for
115 kilometres from the Har Gilo settlement near Jerusalem to the Carmel settlement
south-east of Hebron (Phase D). According to Ministry of Defence documents, work in this
sector is due for completion in 2005. Lastly, there are references in the case file to Israel’s
planned construction of a “security fence” following the Jordan Valley along the mountain
range to the west.
81. According to the Written Statement of the Secretary-General, the first part of
these works (Phase A), which ultimately extends for a distance of 150 kilometres, was
declared completed on 31 July 2003. It is reported that approximately 56,000 Palestinians
would be encompassed in enclaves. During this phase, two sections totalling
19.5 kilometres were built around Jerusalem. In November 2003 construction of a new
section was begun along the Green Line to the west of the Nazlat Issa-Baqa al-Sharqiya
enclave, which in January 2004 was close to completion at the time when the
Secretary-General submitted his Written Statement.
According to the Written Statement of the Secretary-General, the works carried out
under Phase B were still in progress in January 2004. Thus an initial section of this stretch,
which runs near or on the Green Line to the village of al-Mutilla, was almost complete in
January 2004. Two additional sections diverge at this point. Construction started in early
January 2004 on one section that runs due east as far as the Jordanian border. Construction
of the second section, which is planned to run from the Green Line to the village of Taysir,
has barely begun. The United Nations has, however, been informed that this second section
might not be built.
The Written Statement of the Secretary-General further states that Phase C of the
work, which runs from the terminus of Phase A, near the Elkana settlement, to the village of
Nu’man, south-east of Jerusalem, began in December 2003. This section is divided into
three stages. In Stage C1, between inter alia the villages of Rantis and Budrus,
approximately 4 kilometres out of a planned total of 40 kilometres have been constructed.
Stage C2, which will surround the so-called “Ariel Salient” by cutting 22 kilometres into the
West Bank, will incorporate 52,000 Israeli settlers. Stage C3 is to involve the construction
of two “depth barriers”; one of these is to run north-south, roughly parallel with the section
of Stage C1 currently under construction between Rantis and Budrus, whilst the other runs
east-west along a ridge said to be part of the route of Highway 45, a motorway under
construction. If construction of the two barriers were completed, two enclaves would be
formed, encompassing 72,000 Palestinians in 24 communities.
Further construction also started in late November 2003 along the south-eastern part
of the municipal boundary of Jerusalem, following a route that, according to the Written
Statement of the Secretary-General, cuts off the suburban village of El-Ezariya from
Jerusalem and splits the neighbouring Abu Dis in two.
As at 25 January 2004, according to the Written Statement of the Secretary-General,
some 190 kilometres of construction had been completed, covering Phase A and the greater
part of Phase B. Further construction in Phase C had begun in certain areas of the central
West Bank and in Jerusalem. Phase D, planned for the southern part of the West Bank, had
not yet begun.
The Israeli Government has explained that the routes and timetable as described
above are subject to modification. In February 2004, for example, an 8-kilometre section
near the town of Baqa al-Sharqiya was demolished, and the planned length of the wall
appears to have been slightly reduced.
82. According to the description in the report and the Written Statement of the
Secretary-General, the works planned or completed have resulted or will result in a complex
consisting essentially of:
(1) a fence with electronic sensors;
(2) a ditch (up to 4 metres deep);
(3) a two-lane asphalt patrol road;
(4) a trace road (a strip of sand smoothed to detect footprints) running parallel to the fence;
(5) a stack of six coils of barbed wire marking the perimeter of the complex.
The complex has a width of 50 to 70 metres, increasing to as much as 100 metres in
some places. “Depth barriers” may be added to these works.
The approximately 180 kilometres of the complex completed or under construction as
of the time when the Secretary-General submitted his report included some 8.5 kilometres
of concrete wall. These are generally found where Palestinian population centres are close
to or abut Israel (such as near Qalqiliya and Tulkarm or in parts of Jerusalem).
83. According to the report of the Secretary-General, in its northernmost part, the wall
as completed or under construction barely deviates from the Green Line. It nevertheless lies
within occupied territories for most of its course. The works deviate more than
7.5 kilometres from the Green Line in certain places to encompass settlements, while
encircling Palestinian population areas. A stretch of 1 to 2 kilometres west of Tulkarm
appears to run on the Israeli side of the Green Line. Elsewhere, on the other hand, the
planned route would deviate eastward by up to
22 kilometres. In the case of Jerusalem, the existing works and the planned route lie well
beyond the Green Line and even in some cases beyond the eastern municipal boundary of
Jerusalem as fixed by Israel.
84. On the basis of that route, approximately 975 square kilometres (or 16.6 per cent
of the West Bank) would, according to the report of the Secretary-General, lie between the
Green Line and the wall. This area is stated to be home to 237,000 Palestinians. If the full
wall were completed as planned, another 160,000 Palestinians would live in almost
completely encircled communities, described as enclaves in the report. As a result of the
planned route, nearly 320,000 Israeli settlers (of whom 178,000 in East Jerusalem) would be
living in the area between the Green Line and the wall.
85. Lastly, it should be noted that the construction of the wall has been accompanied
by the creation of a new administrative régime. Thus in October 2003 the Israeli Defence
Forces issued Orders establishing the part of the West Bank lying between the Green Line
and the wall as a “Closed Area”. Residents of this area may no longer remain in it, nor may
non-residents enter it, unless holding a permit or identity card issued by the Israeli
authorities. According to the report of the Secretary-General, most residents have received
permits for a limited period. Israeli citizens, Israeli permanent residents and those eligible
to immigrate to Israel in accordance with the Law of Return may remain in, or move freely
to, from and within the Closed Area without a permit. Access to and exit from the Closed
Area can only be made through access gates, which are opened infrequently and for short
periods.
* *
86. The Court will now determine the rules and principles of international law which
are relevant in assessing the legality of the measures taken by Israel. Such rules and
principles can be found in the United Nations 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. However, doubts have been expressed
by Israel as to the applicability in the Occupied Palestinian Territory of certain rules of
international humanitarian law and human rights instruments. The Court will now consider
these various questions.
87. The Court first recalls that, pursuant to Article 2, paragraph 4, of the United
Nations Charter:
“All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the Purposes of the United
Nations.”
On 24 October 1970, the General Assembly adopted resolution 2625 (XXV), entitled
“Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States” (hereinafter “resolution 2625 (XXV)”), in which it emphasized
that “No territorial acquisition resulting from the threat or use of force shall be recognized
as legal.” As the Court stated in its Judgment in the case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
the principles as to the use of force incorporated in the Charter reflect customary
international law (see I.C.J. Reports 1986, pp. 98-101, paras. 187-190); the same is true of
its corollary entailing the illegality of territorial acquisition resulting from the threat or use
of force.
88. The Court also notes that the principle of self-determination of peoples has been
enshrined in the United Nations Charter and reaffirmed by the General Assembly in
resolution 2625 (XXV) cited above, pursuant to which “Every State has the duty to refrain
from any forcible action which deprives peoples referred to [in that resolution] . . . of their
right to self-determination.” Article 1 common to the International Covenant on Economic,
Social and Cultural Rights and the International Covenant on Civil and Political Rights
reaffirms the right of all peoples to self-determination, and lays upon the States parties the
obligation to promote the realization of that right and to respect it, in conformity with the
provisions of the United Nations Charter.
The Court would recall that in 1971 it emphasized that current developments in
“international law in regard to non-self-governing territories, as enshrined in the Charter of
the United Nations, made the principle of self-determination applicable to all [such
territories]”. The Court went on to state that “These developments leave little doubt that the
ultimate objective of the sacred trust” referred to in Article 22, paragraph 1, of the Covenant
of the League of Nations “was the self-determination . . . of the peoples concerned” (Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971, p. 31, paras. 52-53). The Court has referred to this principle on a number of
occasions in its jurisprudence (ibid.; see also Western Sahara, Advisory Opinion, I.C.J.
Reports 1975, p. 68, para. 162). The Court indeed made it clear that the right of peoples to
self-determination is today a right erga omnes (see East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 102, para. 29).
89. As regards international humanitarian law, the Court would first note that Israel is
not a party to the Fourth Hague Convention of 1907, to which the Hague Regulations are
annexed. The Court observes that, in the words of the Convention, those Regulations were
prepared “to revise the general laws and customs of war” existing at that time. Since then,
however, the International Military Tribunal of Nuremberg has found that the “rules laid
down in the Convention were recognised by all civilised nations, and were regarded as
being declaratory of the laws and customs of war” (Judgment of the International Military
Tribunal of Nuremberg, 30 September and 1 October 1946, p. 65). The Court itself reached
the same conclusion when examining the rights and duties of belligerents in their conduct of
military operations (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
I.C.J. Reports 1996 (I), p. 256, para. 75). The Court considers that the provisions of the
Hague Regulations have become part of customary law, as is in fact recognized by all the
participants in the proceedings before the Court.
The Court also observes that, pursuant to Article 154 of the Fourth Geneva
Convention, that Convention is supplementary to Sections II and III of the Hague
Regulations. Section III of those Regulations, which concerns “Military authority over the
territory of the hostile State”, is particularly pertinent in the present case.
90. Secondly, with regard to the Fourth Geneva Convention, differing views have
been expressed by the participants in these proceedings. Israel, contrary to the great
majority of the other participants, disputes the applicability de jure of the Convention to the
Occupied Palestinian Territory. In particular, in paragraph 3 of Annex I to the report of the
Secretary-General, entitled “Summary Legal Position of the Government of Israel”, it is
stated that Israel does not agree that the Fourth Geneva Convention “is applicable to the
occupied Palestinian Territory”, citing “the lack of recognition of the territory as sovereign
prior to its annexation by Jordan and Egypt” and inferring that it is “not a territory of a High
Contracting Party as required by the Convention”.
91. The Court would recall that the Fourth Geneva Convention was ratified by Israel
on 6 July 1951 and that Israel is a party to that Convention. Jordan has also been a party
thereto since 29 May 1951. Neither of the two States has made any reservation that would
be pertinent to the present proceedings.
Furthermore, Palestine gave a unilateral undertaking, by declaration of 7 June 1982,
to apply the Fourth Geneva Convention. Switzerland, as depositary State, considered that
unilateral undertaking valid. It concluded, however, that it “[was] not ⎯ as a depositary ⎯
in a position to decide whether” “the request [dated 14 June 1989] from the Palestine
Liberation Movement in the name of the ‘State of Palestine’ to accede” inter alia to the
Fourth Geneva Convention “can be considered as an instrument of accession”.
92. Moreover, for the purpose of determining the scope of application of the Fourth
Geneva Convention, it should be recalled that under common Article 2 of the four
Conventions of 12 August 1949:
“In addition to the provisions which shall be implemented in peacetime,
the present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation
of the territory of a High Contracting Party, even if the said occupation meets
with no armed resistance.
Although one of the Powers in conflict may not be a party to the present
Convention, the Powers who are parties thereto shall remain bound by it in
their mutual relations. They shall furthermore be bound by the Convention in
relation to the said Power, if the latter accepts and applies the provisions
thereof.”
93. After the occupation of the West Bank in 1967, the Israeli authorities issued an
order No. 3 stating in its Article 35 that:
“the Military Court . . . must apply the provisions of the Geneva Convention
dated 12 August 1949 relative to the Protection of Civilian Persons in Time of
War with respect to judicial procedures. In case of conflict between this Order
and the said Convention, the Convention shall prevail.”
Subsequently, the Israeli authorities have indicated on a number of occasions that in fact
they generally apply the humanitarian provisions of the Fourth Geneva Convention within
the occupied territories. However, according to Israel’s position as briefly recalled in
paragraph 90 above, that Convention is not applicable de jure within those territories
because, under Article 2, paragraph 2, it applies only in the case of occupation of territories
falling under the sovereignty of a High Contracting Party involved in an armed conflict.
Israel explains that Jordan was admittedly a party to the Fourth Geneva Convention in 1967,
and that an armed conflict broke out at that time between Israel and Jordan, but it goes on to
observe that the territories occupied by Israel subsequent to that conflict had not previously
fallen under Jordanian sovereignty. It infers from this that that Convention is not applicable
de jure in those territories. According however to the great majority of other participants in
the proceedings, the Fourth Geneva Convention is applicable to those territories pursuant to
Article 2, paragraph 1, whether or not Jordan had any rights in respect thereof prior to 1967.
94. The Court would recall that, according to customary international law as
expressed in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, a
treaty must be interpreted in good faith in accordance with the ordinary meaning to be given
to its terms in their context and in the light of its object and purpose. Article 32 provides
that:
“Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the application of
article 31, or to determine the meaning when the interpretation according to
article 31 . . . leaves the meaning ambiguous or obscure; or . . . leads to a result
which is manifestly obscure or unreasonable.” (See Oil Platforms (Islamic
Republic of Iran v. United States of America), Preliminary Objections, I.C.J.
Reports 1996 (II), p. 812, para. 23; see, similarly, Kasikili/Sedudu Island
(Botswana/Namibia), I.C.J. Reports 1999 (II), p. 1059, para. 18, and
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
Judgment, I.C.J. Reports 2002, p. 645, para. 37.)
95. The Court notes that, according to the first paragraph of Article 2 of the Fourth
Geneva Convention, that Convention is applicable when two conditions are fulfilled: that
there exists an armed conflict (whether or not a state of war has been recognized); and that
the conflict has arisen between two contracting parties. If those two conditions are satisfied,
the Convention applies, in particular, in any territory occupied in the course of the conflict
by one of the contracting parties.
The object of the second paragraph of Article 2 is not to restrict the scope of
application of the Convention, as defined by the first paragraph, by excluding therefrom
territories not falling under the sovereignty of one of the contracting parties. It is directed
simply to making it clear that, even if occupation effected during the conflict met no armed
resistance, the Convention is still applicable.
This interpretation reflects the intention of the drafters of the Fourth Geneva
Convention to protect civilians who find themselves, in whatever way, in the hands of the
occupying Power. Whilst the drafters of the Hague Regulations of 1907 were as much
concerned with protecting the rights of a State whose territory is occupied, as with
protecting the inhabitants of that territory, the drafters of the Fourth Geneva Convention
sought to guarantee the protection of civilians in time of war, regardless of the status of the
occupied territories, as is shown by Article 47 of the Convention.
That interpretation is confirmed by the Convention’s travaux préparatoires. The
Conference of Government Experts convened by the International Committee of the Red
Cross (hereinafter, “ICRC”) in the aftermath of the Second World War for the purpose of
preparing the new Geneva Conventions recommended that these conventions be applicable
to any armed conflict “whether [it] is or is not recognized as a state of war by the parties”
and “in cases of occupation of territories in the absence of any state of war” (Report on the
Work of the Conference of Government Experts for the Study of the Conventions for the
Protection of War Victims, Geneva, 14-26 April 1947, p. 8). The drafters of the second
paragraph of Article 2 thus had no intention, when they inserted that paragraph into the
Convention, of restricting the latter’s scope of application. They were merely seeking to
provide for cases of occupation without combat, such as the occupation of Bohemia and
Moravia by Germany in 1939.
96. The Court would moreover note that the States parties to the Fourth Geneva
Convention approved that interpretation at their Conference on 15 July 1999. They issued a
statement in which they “reaffirmed the applicability of the Fourth Geneva Convention to
the Occupied Palestinian Territory, including East Jerusalem”. Subsequently, on
5 December 2001, the High Contracting Parties, referring in particular to Article 1 of the
Fourth Geneva Convention of 1949, once again reaffirmed the “applicability of the Fourth
Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem”. They
further reminded the Contracting Parties participating in the Conference, the parties to the
conflict, and the State of Israel as occupying Power, of their respective obligations.
97. Moreover, the Court would observe that the ICRC, whose special position with
respect to execution of the Fourth Geneva Convention must be “recognized and respected at
all times” by the parties pursuant to Article 142 of the Convention, has also expressed its
opinion on the interpretation to be given to the Convention. In a declaration of
5 December 2001, it recalled that “the ICRC has always affirmed the de jure applicability of
the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel,
including East Jerusalem”.
98. The Court notes that the General Assembly has, in many of its resolutions, taken a
position to the same effect. Thus on 10 December 2001 and 9 December 2003, in
resolutions 56/60 and 58/97, it reaffirmed “that the Geneva Convention relative to the
Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the
Occupied Palestinian Territory, including East Jerusalem, and other Arab territories
occupied by Israel since 1967”.
99. The Security Council, for its part, had already on 14 June 1967 taken the view in
resolution 237 (1967) that “all the obligations of the Geneva Convention relative to the
Treatment of Prisoners of War . . . should be complied with by the parties involved in the
conflict”.
Subsequently, on 15 September 1969, the Security Council, in resolution 271 (1969), called
upon “Israel scrupulously to observe the provisions of the Geneva Conventions and
international law governing military occupation”.
Ten years later, the Security Council examined “the policy and practices of Israel in
establishing settlements in the Palestinian and other Arab territories occupied since 1967”.
In resolution 446 (1979) of 22 March 1979, the Security Council considered that those
settlements had “no legal validity” and affirmed “once more that the Geneva Convention
relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is
applicable to the Arab territories occupied by Israel since 1967, including Jerusalem”. It
called “once more upon Israel, as the occupying Power, to abide scrupulously” by that
Convention.
On 20 December 1990, the Security Council, in resolution 681 (1990), urged “the
Government of Israel to accept the de jure applicability of the Fourth Geneva
Convention . . . to all the territories occupied by Israel since 1967 and to abide scrupulously
by the provisions of the Convention”. It further called upon “the high contracting parties to
the said Fourth Geneva Convention to ensure respect by Israel, the occupying Power, for its
obligations under the Convention in accordance with article 1 thereof”.
Lastly, in resolutions 799 (1992) of 18 December 1992 and 904 (1994) of
18 March 1994, the Security Council reaffirmed its position concerning the applicability of
the Fourth Geneva Convention in the occupied territories.
100. The Court would note finally that the Supreme Court of Israel, in a judgment
dated 30 May 2004, also found that:
“The military operations of the [Israeli Defence Forces] in Rafah, to the
extent they affect civilians, are governed by Hague Convention IV Respecting
the Laws and Customs of War on Land 1907 . . . and the Geneva Convention
Relative to the Protection of Civilian Persons in Time of War 1949.”
101. In view of the foregoing, the Court considers that the Fourth Geneva Convention
is applicable in any occupied territory in the event of an armed conflict arising between two
or more High Contracting Parties. Israel and Jordan were parties to that Convention when
the 1967 armed conflict broke out. The Court accordingly finds that that Convention is
applicable in the Palestinian territories which before the conflict lay to the east of the Green
Line and which, during that conflict, were occupied by Israel, there being no need for any
enquiry into the precise prior status of those territories.
*
102. The participants in the proceedings before the Court also disagree whether the
international human rights conventions to which Israel is party apply within the Occupied
Palestinian Territory. Annex I to the report of the Secretary-General states:
“4. Israel denies that the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural
Rights, both of which it has signed, are applicable to the occupied Palestinian
territory. It asserts that humanitarian law is the protection granted in a conflict
situation such as the one in the West Bank and Gaza Strip, whereas human
rights treaties were intended for the protection of citizens from their own
Government in times of peace.”
Of the other participants in the proceedings, those who addressed this issue contend
that, on the contrary, both Covenants are applicable within the Occupied Palestinian
Territory.
103. On 3 October 1991 Israel ratified both the International Covenant on Economic,
Social and Cultural Rights of 19 December 1966 and the International Covenant on Civil
and Political Rights of the same date, as well as the United Nations Convention on the
Rights of the Child of 20 November 1989. It is a party to these three instruments.
104. In order to determine whether these texts are applicable in the Occupied
Palestinian Territory, the Court will first address the issue of the relationship between
international humanitarian law and human rights law and then that of the applicability of
human rights instruments outside national territory.
105. In its Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of
Nuclear Weapons, the Court had occasion to address the first of these issues in relation to
the International Covenant on Civil and Political Rights. In those proceedings certain States
had argued that “the Covenant was directed to the protection of human rights in peacetime,
but that questions relating to unlawful loss of life in hostilities were governed by the law
applicable in armed conflict” (I.C.J. Reports 1996 (I), p. 239, para. 24).
The Court rejected this argument, stating that:
“the protection of the International Covenant of Civil and Political Rights does
not cease in times of war, except by operation of Article 4 of the Covenant
whereby certain provisions may be derogated from in a time of national
emergency. Respect for the right to life is not, however, such a provision. In
principle, the right not arbitrarily to be deprived of one’s life applies also in
hostilities. The test of what is an arbitrary deprivation of life, however, then
falls to be determined by the applicable lex specialis, namely, the law
applicable in armed conflict which is designed to regulate the conduct of
hostilities.” (Ibid., p. 240, para. 25.)
106. More generally, the Court considers that the protection offered by human rights
conventions does not cease in case of armed conflict, save through the effect of provisions
for derogation of the kind to be found in Article 4 of the International Covenant on Civil
and Political Rights. As regards the relationship between international humanitarian law
and human rights law, there are thus three possible situations: some rights may be
exclusively matters of international
humanitarian law; others may be exclusively matters of human rights law; yet others may
be matters of both these branches of international law. In order to answer the question put
to it, the Court will have to take into consideration both these branches of international law,
namely human rights law and, as lex specialis, international humanitarian law.
107. It remains to be determined whether the two international Covenants and the
Convention on the Rights of the Child are applicable only on the territories of the States
parties thereto or whether they are also applicable outside those territories and, if so, in what
circumstances.
108. The scope of application of the International Covenant on Civil and Political
Rights is defined by Article 2, paragraph 1, thereof, which provides:
“Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind, such
as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.”
This provision can be interpreted as covering only individuals who are both present
within a State’s territory and subject to that State’s jurisdiction. It can also be construed as
covering both individuals present within a State’s territory and those outside that territory
but subject to that State’s jurisdiction. The Court will thus seek to determine the meaning to
be given to this text.
109. The Court would observe that, while the jurisdiction of States is primarily
territorial, it may sometimes be exercised outside the national territory. Considering the
object and purpose of the International Covenant on Civil and Political Rights, it would
seem natural that, even when such is the case, States parties to the Covenant should be
bound to comply with its provisions.
The constant practice of the Human Rights Committee is consistent with this. Thus,
the Committee has found the Covenant applicable where the State exercises its jurisdiction
on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests
carried out by Uruguayan agents in Brazil or Argentina (case No. 52/79, López Burgos v.
Uruguay; case No. 56/79, Lilian Celiberti de Casariego v. Uruguay). It decided to the
same effect in the case of the confiscation of a passport by a Uruguayan consulate in
Germany (case No. 106/81, Montero v. Uruguay).
The travaux préparatoires of the Covenant confirm the Committee’s interpretation of
Article 2 of that instrument. These show that, in adopting the wording chosen, the drafters
of the Covenant did not intend to allow States to escape from their obligations when they
exercise jurisdiction outside their national territory. They only intended to prevent persons
residing abroad from asserting, vis-à-vis their State of origin, rights that do not fall within
the competence of that State, but of that of the State of residence (see the discussion of the
preliminary draft in the Commission on Human Rights, E/CN.4/SR.194, para. 46; and
United Nations, Official Records of the General Assembly, Tenth Session, Annexes, A/2929,
Part II, Chap. V, para. 4 (1955)).
110. The Court takes note in this connection of the position taken by Israel, in relation
to the applicability of the Covenant, in its communications to the Human Rights Committee,
and of the view of the Committee.
In 1998, Israel stated that, when preparing its report to the Committee, it had had to
face the question “whether individuals resident in the occupied territories were indeed
subject to Israel’s jurisdiction” for purposes of the application of the Covenant
(CCPR/C/SR.1675, para. 21). Israel took the position that “the Covenant and similar
instruments did not apply directly to the current situation in the occupied territories” (ibid.,
para. 27).
The Committee, in its concluding observations after examination of the report,
expressed concern at Israel’s attitude and pointed “to the long-standing presence of Israel in
[the occupied] territories, Israel’s ambiguous attitude towards their future status, as well as
the exercise of effective jurisdiction by Israeli security forces therein” (CCPR/C/79/Add.93,
para. 10). In 2003 in face of Israel’s consistent position, to the effect that “the Covenant
does not apply beyond its own territory, notably in the West Bank and Gaza . . .”, the
Committee reached the following conclusion:
“in the current circumstances, the provisions of the Covenant apply to the
benefit of the population of the Occupied Territories, for all conduct by the
State party’s authorities or agents in those territories that affect the enjoyment
of rights enshrined in the Covenant and fall within the ambit of State
responsibility of Israel under the principles of public international law”
(CCPR/CO/78/ISR, para. 11).
111. In conclusion, the Court considers that the International Covenant on Civil and
Political Rights is applicable in respect of acts done by a State in the exercise of its
jurisdiction outside its own territory.
112. The International Covenant on Economic, Social and Cultural Rights contains no
provision on its scope of application. This may be explicable by the fact that this Covenant
guarantees rights which are essentially territorial. However, it is not to be excluded that it
applies both to territories over which a State party has sovereignty and to those over which
that State exercises territorial jurisdiction. Thus Article 14 makes provision for transitional
measures in the case of any State which “at the time of becoming a Party, has not been able
to secure in its metropolitan territory or other territories under its jurisdiction compulsory
primary education, free of charge”.
It is not without relevance to recall in this regard the position taken by Israel in its
reports to the Committee on Economic, Social and Cultural Rights. In its initial report to
the Committee of 4 December 1998, Israel provided “statistics indicating the enjoyment of
the rights enshrined in the Covenant by Israeli settlers in the occupied Territories”. The
Committee noted that, according to Israel, “the Palestinian population within the same
jurisdictional areas were excluded from both the report and the protection of the Covenant”
(E/C.12/1/Add. 27, para. 8). The Committee expressed
its concern in this regard, to which Israel replied in a further report of 19 October 2001 that
it has “consistently maintained that the Covenant does not apply to areas that are not subject
to its sovereign territory and jurisdiction” (a formula inspired by the language of the
International Covenant on Civil and Political Rights). This position, continued Israel, is
“based on the well-established distinction between human rights and humanitarian law
under international law”. It added: “the Committee’s mandate cannot relate to events in the
West Bank and the Gaza Strip, inasmuch as they are part and parcel of the context of armed
conflict as distinct from a relationship of human rights” (E/1990/6/Add. 32, para. 5). In
view of these observations, the Committee reiterated its concern about Israel’s position and
reaffirmed “its view that the State party’s obligations under the Covenant apply to all
territories and populations under its effective control” (E/C.12/1/Add.90, paras. 15 and 31).
For the reasons explained in paragraph 106 above, the Court cannot accept Israel’s
view. It would also observe that the territories occupied by Israel have for over 37 years
been subject to its territorial jurisdiction as the occupying Power. In the exercise of the
powers available to it on this basis, Israel is bound by the provisions of the International
Covenant on Economic, Social and Cultural Rights. Furthermore, it 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.
113. As regards the Convention on the Rights of the Child of 20 November 1989, that
instrument contains an Article 2 according to which “States Parties shall respect and ensure
the rights set forth in the . . . Convention to each child within their jurisdiction . . .”. That
Convention is therefore applicable within the Occupied Palestinian Territory.
* *
114. Having determined the rules and principles of international law relevant to reply
to the question posed by the General Assembly, and having ruled in particular on the
applicability within the Occupied Palestinian Territory of international humanitarian law
and human rights law, the Court will now seek to ascertain whether the construction of the
wall has violated those rules and principles.
*
115. In this regard, Annex II to the report of the Secretary-General, entitled
“Summary Legal Position of the Palestine Liberation Organization”, states that “The
construction of the Barrier is an attempt to annex the territory contrary to international law”
and that “The de facto annexation of land interferes with the territorial sovereignty and
consequently with the right of the Palestinians to
self-determination.” This view was echoed in certain of the written statements submitted to
the Court and in the views expressed at the hearings. Inter alia, it was contended that: “The
wall severs the territorial sphere over which the Palestinian people are entitled to exercise
their right of self-determination and constitutes a violation of the legal principle prohibiting
the acquisition of territory by the use of force.” In this connection, it was in particular
emphasized that “The route of the wall is designed to change the demographic composition
of the Occupied Palestinian Territory, including East Jerusalem, by reinforcing the Israeli
settlements” illegally established on the Occupied Palestinian Territory. It was further
contended that the wall aimed at “reducing and parcelling out the territorial sphere over
which the Palestinian people are entitled to exercise their right of self-determination”.
116. For its part, Israel has argued that the wall’s sole purpose is to enable it
effectively to combat terrorist attacks launched from the West Bank. Furthermore, Israel
has repeatedly stated that the Barrier is a temporary measure (see report of the
Secretary-General, para. 29). It did so inter alia through its Permanent Representative to the
United Nations at the Security Council meeting of 14 October 2003, emphasizing that “[the
fence] does not annex territories to the State of Israel”, and that Israel is “ready and able, at
tremendous cost, to adjust or dismantle a fence if so required as part of a political
settlement” (S/PV.4841, p. 10). Israel’s Permanent Representative restated this view before
the General Assembly on 20 October and 8 December 2003. On this latter occasion, he
added: “As soon as the terror ends, the fence will no longer be necessary. The fence is not
a border and has no political significance. It does not change the legal status of the territory
in any way.” (A/ES-10/PV.23, p. 6.)
117. The Court would recall that both the General Assembly and the Security Council
have referred, with regard to Palestine, to the customary rule of “the inadmissibility of the
acquisition of territory by war” (see paragraphs 74 and 87 above). Thus in resolution 242
(1967) of 22 November 1967, the Security Council, after recalling this rule, affirmed that:
“the fulfilment of Charter principles requires the establishment of a just and
lasting peace in the Middle East which should include the application of both
the following principles:
(i) Withdrawal of Israel armed forces from territories occupied in the
recent conflict;
(ii) Termination of all claims or states of belligerency and respect for and
acknowledgement of the sovereignty, territorial integrity and political
independence of every State in the area and their right to live in peace
within secure and recognized boundaries free from threats or acts of
force”.
It is on this same basis that the Council has several times condemned the measures
taken by Israel to change the status of Jerusalem (see paragraph 75 above).
118. As regards the principle of the right of peoples to self-determination, the Court
observes that the existence of a “Palestinian people” is no longer in issue. Such existence
has moreover been recognized by Israel in the exchange of letters of 9 September 1993
between Mr. Yasser Arafat, President of the Palestine Liberation Organization (PLO) and
Mr. Yitzhak Rabin, Israeli Prime Minister. In that correspondence, the President of the PLO
recognized “the right of the State of Israel to exist in peace and security” and made various
other commitments. In reply, the Israeli Prime Minister informed him that, in the light of
those commitments, “the Government of Israel has decided to recognize the PLO as the
representative of the Palestinian people”. The Israeli-Palestinian Interim Agreement on the
West Bank and the Gaza Strip of 28 September 1995 also refers a number of times to the
Palestinian people and its “legitimate rights” (Preamble, paras. 4, 7, 8; Article II, para. 2;
Article III, paras. 1 and 3; Article XXII, para. 2). The Court considers that those rights
include the right to self-determination, as the General Assembly has moreover recognized
on a number of occasions (see, for example, resolution 58/163 of 22 December 2003).
119. The Court notes that the route of the wall as fixed by the Israeli Government
includes within the “Closed Area” (see paragraph 85 above) some 80 per cent of the settlers
living in the Occupied Palestinian Territory. Moreover, it is apparent from an examination
of the map mentioned in paragraph 80 above that the wall’s sinuous route has been traced in
such a way as to include within that area the great majority of the Israeli settlements in the
occupied Palestinian Territory (including East Jerusalem).
120. As regards these settlements, the Court notes that Article 49, paragraph 6, of the
Fourth Geneva Convention provides: “The Occupying Power shall not deport or transfer
parts of its own civilian population into the territory it occupies.” That provision prohibits
not only deportations or forced transfers of population such as those carried out during the
Second World War, but also any measures taken by an occupying Power in order to
organize or encourage transfers of parts of its own population into the occupied territory.
In this respect, the information provided to the Court shows that, since 1977, Israel
has conducted a policy and developed practices involving the establishment of settlements
in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, just
cited.
The Security Council has thus taken the view that such policy and practices “have no
legal validity”. It has also called upon “Israel, as the occupying Power, to abide
scrupulously” by the Fourth Geneva Convention and:
“to rescind its previous measures and to desist from taking any action which
would result in changing the legal status and geographical nature and
materially affecting the demographic composition of the Arab territories
occupied since 1967, including Jerusalem and, in particular, not to transfer
parts of its own civilian population into the occupied Arab territories”
(resolution 446 (1979) of 22 March 1979).
The Council reaffirmed its position in resolutions 452 (1979) of 20 July 1979 and
465 (1980) of 1 March 1980. Indeed, in the latter case it described “Israel’s policy and
practices of settling parts of its population and new immigrants in [the occupied] territories”
as a “flagrant violation” of the Fourth Geneva Convention.
The Court concludes that the Israeli settlements in the Occupied Palestinian Territory
(including East Jerusalem) have been established in breach of international law.
121. Whilst the Court notes the assurance given by Israel that the construction of the
wall does not amount to annexation and that the wall is of a temporary nature (see
paragraph 116 above), it nevertheless cannot remain indifferent to certain fears expressed to
it that the route of the wall will prejudge the future frontier between Israel and Palestine, and
the fear that Israel may integrate the settlements and their means of access. The Court
considers that the construction of the wall and its associated régime create a “fait accompli”
on the ground that could well become permanent, in which case, and notwithstanding the
formal characterization of the wall by Israel, it would be tantamount to de facto annexation.
122. The Court recalls moreover that, according to the report of the
Secretary-General, the planned route would incorporate in the area between the Green Line
and the wall more than 16 per cent of the territory of the West Bank. Around 80 per cent of
the settlers living in the Occupied Palestinian Territory, that is 320,000 individuals, would
reside in that area, as well as 237,000 Palestinians. Moreover, as a result of the construction
of the wall, around 160,000 other Palestinians would reside in almost completely encircled
communities (see paragraphs 84, 85 and 119 above).
In other terms, the route chosen for the wall gives expression in loco to the illegal
measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the
Security Council (see paragraphs 75 and 120 above). There is also a risk of further
alterations to the demographic composition of the Occupied Palestinian Territory resulting
from the construction of the wall inasmuch as it is contributing, as will be further explained
in paragraph 133 below, to the departure of Palestinian populations from certain areas. That
construction, along with measures taken previously, thus 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.
*
123. The construction of the wall also raises a number of issues in relation to the
relevant provisions of international humanitarian law and of human rights instruments.
124. With regard to the Hague Regulations of 1907, the Court would recall that these
deal, in Section II, with hostilities and in particular with “means of injuring the enemy,
sieges, and bombardments”. Section III deals with military authority in occupied
territories. Only Section III is currently applicable in the West Bank and Article 23 (g) of
the Regulations, in Section II, is thus not pertinent.
Section III of the Hague Regulations includes Articles 43, 46 and 52, which are
applicable in the Occupied Palestinian Territory. Article 43 imposes a duty on the occupant
to “take all measures within his power to restore, and, as far as possible, to insure public
order and life, respecting the laws in force in the country”. Article 46 adds that private
property must be “respected” and that it cannot “be confiscated”. Lastly, Article 52
authorizes, within certain limits, requisitions in kind and services for the needs of the army
of occupation.
125. A distinction is also made in the Fourth Geneva Convention between provisions
applying during military operations leading to occupation and those that remain applicable
throughout the entire period of occupation. It thus states in Article 6:
“The present Convention shall apply from the outset of any conflict or
occupation mentioned in Article 2.
In the territory of Parties to the conflict, the application of the present
Convention shall cease on the general close of military operations.
In the case of occupied territory, the application of the present
Convention shall cease one year after the general close of military operations;
however, the Occupying Power shall be bound, for the duration of the
occupation, to the extent that such Power exercises the functions of
government in such territory, by the provisions of the following Articles of the
present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.
Protected persons whose release, repatriation or re-establishment may
take place after such dates shall meanwhile continue to benefit by the present
Convention.”
Since the military operations leading to the occupation of the West Bank in 1967
ended a long time ago, only those Articles of the Fourth Geneva Convention referred to in
Article 6, paragraph 3, remain applicable in that occupied territory.
126. These provisions include Articles 47, 49, 52, 53 and 59 of the Fourth Geneva
Convention.
According to Article 47:
“Protected persons who are in occupied territory shall not be deprived, in
any case or in any manner whatsoever, of the benefits of the present
Convention by any change introduced, as the result of the occupation of a
territory, into the institutions or government of the said territory, nor by any
agreement concluded between the authorities of the occupied territories and the
Occupying Power, nor by any annexation by the latter of the whole or part of
the occupied territory.”
Article 49 reads as follows:
“Individual or mass forcible transfers, as well as deportations of
protected persons from occupied territory to the territory of the Occupying
Power or to that of any other country, occupied or not, are prohibited,
regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial
evacuation of a given area if the security of the population or imperative
military reasons so demand. Such evacuations may not involve the
displacement of protected persons outside the bounds of the occupied territory
except when for material reasons it is impossible to avoid such displacement.
Persons thus evacuated shall be transferred back to their homes as soon as
hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall
ensure, to the greatest practicable extent, that proper accommodation is
provided to receive the protected persons, that the removals are effected in
satisfactory conditions of hygiene, health, safety and nutrition, and that
members of the same family are not separated.
The Protecting Power shall be informed of any transfers and evacuations
as soon as they have taken place.
The Occupying Power shall not detain protected persons in an area
particularly exposed to the dangers of war unless the security of the population
or imperative military reasons so demand.
The Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it occupies.”
According to Article 52:
“No contract, agreement or regulation shall impair the right of any
worker, whether voluntary or not and wherever he may be, to apply to the
representatives of the Protecting Power in order to request the said Power’s
intervention.
All measures aiming at creating unemployment or at restricting the
opportunities offered to workers in an occupied territory, in order to induce
them to work for the Occupying Power, are prohibited.”
Article 53 provides that:
“Any destruction by the Occupying Power of real or personal property
belonging individually or collectively to private persons, or to the State, or to
other public authorities, or to social or cooperative organizations, is prohibited,
except where such destruction is rendered absolutely necessary by military
operations.”
Lastly, according to Article 59:
“If the whole or part of the population of an occupied territory is
inadequately supplied, the Occupying Power shall agree to relief schemes on
behalf of the said population, and shall facilitate them by all the means at its
disposal.
Such schemes, which may be undertaken either by States or by impartial
humanitarian organizations such as the International Committee of the Red
Cross, shall consist, in particular, of the provision of consignments of
foodstuffs, medical supplies and clothing.
All Contracting Parties shall permit the free passage of these
consignments and shall guarantee their protection.
A Power granting free passage to consignments on their way to territory
occupied by an adverse Party to the conflict shall, however, have the right to
search the consignments, to regulate their passage according to prescribed
times and routes, and to be reasonably satisfied through the Protecting Power
that these consignments are to be used for the relief of the needy population
and are not to be used for the benefit of the Occupying Power.”
127. The International Covenant on Civil and Political Rights also contains several
relevant provisions. Before further examining these, the Court will observe that Article 4 of
the Covenant allows for derogation to be made, under various conditions, to certain
provisions of that instrument. Israel made use of its right of derogation under this Article by
addressing the following communication to the Secretary-General of the United Nations on
3 October 1991:
“Since its establishment, the State of Israel has been the victim of
continuous threats and attacks on its very existence as well as on the life and
property of its citizens.
These have taken the form of threats of war, of actual armed attacks, and
campaigns of terrorism resulting in the murder of and injury to human beings.
In view of the above, the State of Emergency which was proclaimed in
May 1948 has remained in force ever since. This situation constitutes a public
emergency within the meaning of article 4 (1) of the Covenant.
The Government of Israel has therefore found it necessary, in accordance
with the said article 4, to take measures to the extent strictly required by the
exigencies of the situation, for the defence of the State and for the protection of
life and property, including the exercise of powers of arrest and detention.
In so far as any of these measures are inconsistent with article 9 of the
Covenant, Israel thereby derogates from its obligations under that provision.”
The Court notes that the derogation so notified concerns only Article 9 of the
International Covenant on Civil and Political Rights, which deals with the right to liberty
and security of person and lays down the rules applicable in cases of arrest or detention.
The other Articles of the Covenant therefore remain applicable not only on Israeli territory,
but also on the Occupied Palestinian Territory.
128. Among these mention must be made of Article 17, paragraph 1 of which reads as
follows: “No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and reputation.”
Mention must also be made of Article 12, paragraph 1, which provides: “Everyone
lawfully within the territory of a State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence.”
129. In addition to the general guarantees of freedom of movement under Article 12
of the International Covenant on Civil and Political Rights, account must also be taken of
specific guarantees of access to the Christian, Jewish and Islamic Holy Places. The status of
the Christian Holy Places in the Ottoman Empire dates far back in time, the latest provisions
relating thereto having been incorporated into Article 62 of the Treaty of Berlin of
13 July 1878. The Mandate for Palestine given to the British Government on 24 July 1922
included an Article 13, under which:
“All responsibility in connection with the Holy Places and religious
buildings or sites in Palestine, including that of preserving existing rights and
of securing free access to the Holy Places, religious buildings and sites and the
free exercise of worship, while ensuring the requirements of public order and
decorum, is assumed by the Mandatory . . .”
Article 13 further stated: “nothing in this mandate shall be construed as conferring . . .
authority to interfere with the fabric or the management of purely Moslem sacred shrines,
the immunities of which are guaranteed”.
In the aftermath of the Second World War, the General Assembly, in adopting
resolution 181 (II) on the future government of Palestine, devoted an entire chapter of the
Plan of Partition to the Holy Places, religious buildings and sites. Article 2 of this Chapter
provided, in so far as the Holy Places were concerned:
“the liberty of access, visit and transit shall be guaranteed, in conformity with
existing rights, to all residents and citizens [of the Arab State, of the Jewish
State] and of the City of Jerusalem, as well as to aliens, without distinction as
to nationality, subject to requirements of national security, public order and
decorum”.
Subsequently, in the aftermath of the armed conflict of 1948, the 1949 General Armistice
Agreement between Jordan and Israel provided in Article VIII for the establishment of a
special committee for “the formulation of agreed plans and arrangements for such matters as
either Party may submit to it” for the purpose of enlarging the scope of the Agreement and
of effecting improvement in its application. Such matters, on which an agreement of
principle had already been concluded, included “free access to the Holy Places”.
This commitment concerned mainly the Holy Places located to the east of the Green
Line. However, some Holy Places were located west of that Line. This was the case of the
Room of the Last Supper and the Tomb of David, on Mount Zion. In signing the General
Armistice Agreement, Israel thus undertook, as did Jordan, to guarantee freedom of access
to the Holy Places. The Court
considers that this undertaking by Israel has remained valid for the Holy Places which came
under its control in 1967. This undertaking has further been confirmed by Article 9,
paragraph 1, of the 1994 Peace Treaty between Israel and Jordan, by virtue of which, in
more general terms, “Each party will provide freedom of access to places of religious and
historical significance.”
130. As regards the International Covenant on Economic, Social and Cultural Rights,
that instrument includes a number of relevant provisions, namely: the right to work
(Articles 6 and 7); protection and assistance accorded to the family and to children and
young persons (Article 10); the right to an adequate standard of living, including adequate
food, clothing and housing, and the right “to be free from hunger” (Art. 11); the right to
health (Art. 12); the right to education (Arts. 13 and 14).
131. Lastly, the United Nations Convention on the Rights of the Child of
20 November 1989 includes similar provisions in Articles 16, 24, 27 and 28.
*
132. From the information submitted to the Court, particularly the report of the
Secretary-General, it appears that the construction of the wall has led to the destruction or
requisition of properties under conditions which contravene the requirements of Articles 46
and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva
Convention.
133. That construction, the establishment of a closed area between the Green Line and
the wall itself and the creation of enclaves have moreover imposed substantial restrictions
on the freedom of movement of the inhabitants of the Occupied Palestinian Territory (with
the exception of Israeli citizens and those assimilated thereto). Such restrictions are most
marked in urban areas, such as the Qalqiliya enclave or the City of Jerusalem and its
suburbs. They are aggravated by the fact that the access gates are few in number in certain
sectors and opening hours appear to be restricted and unpredictably applied. For example,
according to the Special Rapporteur of the Commission on Human Rights on the situation of
human rights in the Palestinian territories occupied by Israel since 1967, “Qalqiliya, a city
with a population of 40,000, is completely surrounded by the Wall and residents can only
enter and leave through a single military checkpoint open from 7 a.m. to 7 p.m.” (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, submitted in
accordance with Commission resolution 1993/2 A and entitled “Question of the Violation of
Human Rights in the Occupied Arab Territories, including Palestine”, E/CN.4/2004/6,
8 September 2003, para. 9.)
There have also been serious repercussions for agricultural production, as is attested
by a number of sources. According to the Special Committee to Investigate Israeli Practices
Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied
Territories
“an estimated 100,000 dunums [approximately 10,000 hectares] of the West
Bank’s most fertile agricultural land, confiscated by the Israeli Occupation
Forces, have been destroyed during the first phase of the wall construction,
which involves the disappearance of vast amounts of property, notably private
agricultural land and olive trees, wells, citrus grows and hothouses upon which
tens of thousands of Palestinians rely for their survival” (Report of the Special
Committee to Investigate Israeli Practices Affecting the Human Rights of the
Palestinian People and Other Arabs of the Occupied Territories, A/58/311,
22 August 2003, para. 26).
Further, the Special Rapporteur on the situation of human rights in the Palestinian territories
occupied by Israel since 1967 states that “Much of the Palestinian land on the Israeli side of
the Wall consists of fertile agricultural land and some of the most important water wells in
the region” and adds that “Many fruit and olive trees had been destroyed in the course of
building the barrier.” (E/CN.4/2004/6, 8 September 2003, para. 9.) The Special Rapporteur
on the Right to Food of the United Nations Commission on Human Rights states that
construction of the wall “cuts off Palestinians from their agricultural lands, wells and means
of subsistence” (Report by the Special Rapporteur of the United Nations Commission on
Human Rights, Jean Ziegler, “The Right to Food”, Addendum, Mission to the Occupied
Palestinian Territories, E/CN.4/2004/10/Add.2, 31 October 2003, para. 49). In a recent
survey conducted by the World Food Programme, it is stated that the situation has
aggravated food insecurity in the region, which reportedly numbers 25,000 new
beneficiaries of food aid (report of the Secretary-General, para. 25).
It has further led to increasing difficulties for the population concerned regarding
access to health services, educational establishments and primary sources of water. This is
also attested by a number of different information sources. Thus the report of the
Secretary-General states generally that “According to the Palestinian Central Bureau of
Statistics, so far the Barrier has separated 30 localities from health services, 22 from
schools, 8 from primary water sources and 3 from electricity networks.” (Report of the
Secretary-General, para. 23.) The Special Rapporteur of the United Nations Commission on
Human Rights on the situation of human rights in the Palestinian territories occupied by
Israel since 1967 states that “Palestinians between the Wall and Green Line will effectively
be cut off from their land and workplaces, schools, health clinics and other social services.”
(E/CN.4/2004/6, 8 September 2003, para. 9.) In relation specifically to water resources, the
Special Rapporteur on the Right to Food of the United Nations Commission on Human
Rights observes that “By constructing the fence Israel will also effectively annex most of
the western aquifer system (which provides 51 per cent of the West Bank’s water
resources).” (E/CN.4/2004/10/Add.2, 31 October 2003, para. 51.) Similarly, in regard to
access to health services, it has been stated that, as a result of the enclosure of Qalqiliya, a
United Nations hospital in that town has recorded a 40 per cent decrease in its caseload
(report of the Secretary-General, para. 24).
At Qalqiliya, according to reports furnished to the United Nations, some 600 shops or
businesses have shut down, and 6,000 to 8,000 people have already left the region
(E/CN.4/2004/6, 8 September 2003, para. 10; E/CN.4/2004/10/Add.2, 31 October 2003,
para. 51). The Special Rapporteur on the Right to Food of the United Nations Commission
on Human Rights has also observed that “With the fence/wall cutting communities off from
their land and water without other
means of subsistence, many of the Palestinians living in these areas will be forced to
leave.” (E/CN.4/2004/10/Add.2, 31 October 2003, para. 51.) In this respect also the
construction of the wall would effectively deprive a significant number of Palestinians of
the “freedom to choose [their] residence”. In addition, however, in the view of the Court,
since a significant number of Palestinians have already been compelled by the construction
of the wall and its associated régime to depart from certain areas, a process that will
continue as more of the wall is built, that construction, coupled with the establishment of the
Israeli settlements mentioned in paragraph 120 above, is tending to alter the demographic
composition of the Occupied Palestinian Territory.
134. To sum up, the Court is of the opinion that the construction of the wall and its
associated régime impede the liberty of movement of the inhabitants of the Occupied
Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto) as
guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and
Political Rights. They also impede the exercise by the persons concerned of the right to
work, to health, to education and to an adequate standard of living as proclaimed in the
International Covenant on Economic, Social and Cultural Rights and in the United Nations
Convention on the Rights of the Child. Lastly, the construction of the wall and its
associated régime, by contributing to the demographic changes referred to in paragraphs 122
and 133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and
the Security Council resolutions cited in paragraph 120 above.
135. The Court would observe, however, that the applicable international
humanitarian law contains provisions enabling account to be taken of military exigencies in
certain circumstances.
Neither Article 46 of the Hague Regulations of 1907 nor Article 47 of the Fourth
Geneva Convention contain any qualifying provision of this type. With regard to forcible
transfers of population and deportations, which are prohibited under Article 49, paragraph 1,
of the Convention, paragraph 2 of that Article provides for an exception in those cases in
which “the security of the population or imperative military reasons so demand”. This
exception however does not apply to paragraph 6 of that Article, which prohibits the
occupying Power from deporting or transferring parts of its own civilian population into the
territories it occupies. As to Article 53 concerning the destruction of personal property, it
provides for an exception “where such destruction is rendered absolutely necessary by
military operations”.
The Court considers that the military exigencies contemplated by these texts may be
invoked in occupied territories even after the general close of the military operations that led
to their occupation. However, on the material before it, the Court is not convinced that the
destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva
Convention were rendered absolutely necessary by military operations.
136. The Court would further observe that some human rights conventions, and in
particular the International Covenant on Civil and Political Rights, contain provisions which
States parties may invoke in order to derogate, under various conditions, from certain of
their conventional obligations. In this respect, the Court would however recall that the
communication notified by
Israel to the Secretary-General of the United Nations under Article 4 of the International
Covenant on Civil and Political Rights concerns only Article 9 of the Covenant, relating to
the right to freedom and security of person (see paragraph 127 above); Israel is accordingly
bound to respect all the other provisions of that instrument.
The Court would note, moreover, that certain provisions of human rights conventions
contain clauses qualifying the rights covered by those provisions. There is no clause of this
kind in Article 17 of the International Covenant on Civil and Political Rights. On the other
hand, Article 12, paragraph 3, of that instrument provides that restrictions on liberty of
movement as guaranteed under that Article “shall not be subject to any restrictions except
those which are provided by law, are necessary to protect national security, public order
(ordre public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant”. As for the
International Covenant on Economic, Social and Cultural Rights, Article 4 thereof contains
a general provision as follows:
“The States Parties to the present Covenant recognize that, in the
enjoyment of those rights provided by the State in conformity with the present
Covenant, the State may subject such rights only to such limitations as are
determined by law only in so far as this may be compatible with the nature of
these rights and solely for the purpose of promoting the general welfare in a
democratic society.”
The Court would observe that the restrictions provided for under Article 12,
paragraph 3, of the International Covenant on Civil and Political Rights are, by the very
terms of that provision, exceptions to the right of freedom of movement contained in
paragraph 1. In addition, it is not sufficient that such restrictions be directed to the ends
authorized; they must also be necessary for the attainment of those ends. As the Human
Rights Committee put it, they “must conform to the principle of proportionality” and “must
be the least intrusive instrument amongst those which might achieve the desired result”
(CCPR/C/21/Rev.1/Add.9, General Comment No. 27, para. 14). On the basis of the
information available to it, the Court finds that these conditions are not met in the present
instance.
The Court would further observe that the restrictions on the enjoyment by the
Palestinians living in the territory occupied by Israel of their economic, social and cultural
rights, resulting from Israel’s construction of the wall, fail to meet a condition laid down by
Article 4 of the International Covenant on Economic, Social and Cultural Rights, that is to
say that their implementation must be “solely for the purpose of promoting the general
welfare in a democratic society”.
137. To sum up, the Court, from the material available to it, is not convinced that the
specific course Israel has chosen for the wall was necessary to attain its security objectives.
The wall, along the route chosen, and its associated régime 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. The construction of such a wall accordingly constitutes
breaches by Israel of various of its obligations under the applicable international
humanitarian law and human rights instruments.
*
138. The Court has thus concluded that the construction of the wall constitutes action
not in conformity with various international legal obligations incumbent upon Israel.
However, Annex I to the report of the Secretary-General states that, according to Israel:
“the construction of the Barrier is consistent with Article 51 of the Charter of the United
Nations, its inherent right to self-defence and Security Council resolutions 1368 (2001) and
1373 (2001)”. More specifically, Israel’s Permanent Representative to the United Nations
asserted in the General Assembly on 20 October 2003 that “the fence is a measure wholly
consistent with the right of States to self-defence enshrined in Article 51 of the Charter”;
the Security Council resolutions referred to, he continued, “have clearly recognized the right
of States to use force in self-defence against terrorist attacks”, and therefore surely
recognize the right to use non-forcible measures to that end (A/ES-10/PV.21, p. 6).
139. Under the terms of Article 51 of the Charter of the United Nations:
“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security.”
Article 51 of the Charter thus recognizes the existence of an inherent right of
self-defence in the case of armed attack by one State against another State. However, Israel
does not claim that the attacks against it are imputable to a foreign State.
The Court also notes that Israel exercises control in the Occupied Palestinian
Territory and that, as Israel itself states, the threat which it regards as justifying the
construction of the wall originates within, and not outside, that territory. The situation is
thus different from that contemplated by Security Council resolutions 1368 (2001) and
1373 (2001), and therefore Israel could not in any event invoke those resolutions in support
of its claim to be exercising a right of self-defence.
Consequently, the Court concludes that Article 51 of the Charter has no relevance in
this case.
140. The Court has, however, considered whether Israel could rely on a state of
necessity which would preclude the wrongfulness of the construction of the wall. In this
regard the Court is bound to note that some of the conventions at issue in the present
instance include qualifying clauses of the rights guaranteed or provisions for derogation (see
paragraphs 135 and 136 above). Since those treaties already address considerations of this
kind within their own provisions, it might be asked whether a state of necessity as
recognized in customary international law could be invoked with regard to those treaties as
a ground for precluding the wrongfulness of the measures or decisions being challenged.
However, the Court will not need to consider that question. As the Court observed in the
case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), “the state of
necessity is a ground recognized by customary international law” that “can only be accepted
on an exceptional basis”; it “can only be invoked under certain strictly defined conditions
which must be cumulatively satisfied; and the State concerned is not the sole judge of
whether those conditions have been met” (I.C.J. Reports 1997, p. 40, para. 51). One of
those conditions
was stated by the Court in terms used by the International Law Commission, in a text which
in its present form requires that the act being challenged be “the only way for the State to
safeguard an essential interest against a grave and imminent peril” (Article 25 of the
International Law Commission’s Articles on Responsibility of States for Internationally
Wrongful Acts; see also former Article 33 of the Draft Articles on the International
Responsibility of States, with slightly different wording in the English text). In the light of
the material before it, the Court is 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 which
it has invoked as justification for that construction.
141. The fact remains that Israel has to face numerous indiscriminate and deadly acts
of violence against its civilian population. It has the right, and indeed the duty, to respond
in order to protect the life of its citizens. The measures taken are bound nonetheless to
remain in conformity with applicable international law.
142. In conclusion, the Court considers that Israel cannot rely on a right of
self-defence or on a state of necessity in order to preclude the wrongfulness of the
construction of the wall resulting from the considerations mentioned in paragraphs 122 and
137 above. The Court accordingly finds that the construction of the wall, and its associated
régime, are contrary to international law.
*
* *
143. The Court having concluded that, by the construction of the wall in the Occupied
Palestinian Territory, including in and around East Jerusalem, and by adopting its associated
régime, Israel has violated various international obligations incumbent upon it (see
paragraphs 114-137 above), it must now, in order to reply to the question posed by the
General Assembly, examine the consequences of those violations.
* *
144. In their written and oral observations, many participants in the proceedings
before the Court contended that Israel’s action in illegally constructing this wall has legal
consequences not only for Israel itself, but also for other States and for the United Nations;
in its Written Statement, Israel, for its part, presented no arguments regarding the possible
legal consequences of the construction of the wall.
145. As regards the legal consequences for Israel, it was contended that Israel has,
first, a legal obligation to bring the illegal situation to an end by ceasing forthwith the
construction of the wall in the Occupied Palestinian Territory, and to give appropriate
assurances and guarantees of non-repetition.
It was argued that, secondly, Israel is under a legal obligation to make reparation for
the damage arising from its unlawful conduct. It was submitted that such reparation should
first of all take the form of restitution, namely demolition of those portions of the wall
constructed in the Occupied Palestinian Territory and annulment of the legal acts associated
with its construction and the restoration of property requisitioned or expropriated for that
purpose; reparation should also include appropriate compensation for individuals whose
homes or agricultural holdings have been destroyed.
It was further contended that Israel is under a continuing duty to comply with all of
the international obligations violated by it as a result of the construction of the wall in the
Occupied Palestinian Territory and of the associated régime. It was also argued that, under
the terms of the Fourth Geneva Convention, Israel is under an obligation to search for and
bring before its courts persons alleged to have committed, or to have ordered to be
committed, grave breaches of international humanitarian law flowing from the planning,
construction and use of the wall.
146. As regards the legal consequences for States other than Israel, it was contended
before the Court that all States are under an obligation not to recognize the illegal situation
arising from the construction of the wall, not to render aid or assistance in maintaining that
situation and to co-operate with a view to putting an end to the alleged violations and to
ensuring that reparation will be made therefor.
Certain participants in the proceedings further contended that the States parties to the
Fourth Geneva Convention are obliged to take measures to ensure compliance with the
Convention and that, inasmuch as the construction and maintenance of the wall in the
Occupied Palestinian Territory constitutes grave breaches of that Convention, the States
parties to that Convention are under an obligation to prosecute or extradite the authors of
such breaches. It was further observed that “the United Nations Security Council should
consider flagrant and systematic violation of international law norm[s] and principles by
Israel, particularly . . . international humanitarian law, and take all necessary measures to
put an end [to] these violations”, and that the Security Council and the General Assembly
must take due account of the advisory opinion to be given by the Court.
* *
147. Since the Court has concluded that the construction of the wall in the Occupied
Palestinian Territory, including in and around East Jerusalem, and its associated régime, are
contrary to various of Israel’s international obligations, it follows that the responsibility of
that State is engaged under international law.
148. The Court will now examine the legal consequences resulting from the violations
of international law by Israel by distinguishing between, on the one hand, those arising for
Israel and, on the other, those arising for other States and, where appropriate, for the United
Nations. The Court will begin by examining the legal consequences of those violations for
Israel.
*
149. The Court notes that Israel is first obliged to comply with the international
obligations it has breached by the construction of the wall in the Occupied Palestinian
Territory (see paragraphs 114-137 above). Consequently, Israel is bound to comply with 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.
Furthermore, it must ensure freedom of access to the Holy Places that came under its control
following the 1967 War (see paragraph 129 above).
150. The Court observes that Israel also has an obligation to put an end to the
violation of its international obligations flowing from the construction of the wall in the
Occupied Palestinian Territory. The obligation of a State responsible for an internationally
wrongful act to put an end to that act is well established in general international law, and the
Court has on a number of occasions confirmed the existence of that obligation (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 149; United States Diplomatic and Consular Staff
in Tehran, Judgment, I.C.J. Reports 1980, p. 44, para. 95; Haya de la Torre, Judgment,
I.C.J. Reports 1951, p. 82).
151. Israel accordingly has the obligation to cease forthwith the works of construction
of the wall being built by it in the Occupied Palestinian Territory, including in and around
East Jerusalem. Moreover, in view of the Court’s finding (see paragraph 143 above) that
Israel’s violations of its international obligations stem from the construction of the wall and
from its associated régime, cessation of those violations entails in practice the dismantling
forthwith of those parts of that structure situated within the Occupied Palestinian Territory,
including in and around East Jerusalem. All legislative and regulatory acts adopted with a
view to its construction, and to the establishment of its associated régime, must forthwith be
repealed or rendered ineffective, except in so far as such acts, by providing for
compensation or other forms of reparation for the Palestinian population, may continue to
be relevant for compliance by Israel with the obligations referred to in paragraph 153 below.
152. Moreover, given that the construction of the wall in the Occupied Palestinian
Territory has, inter alia, entailed the requisition and destruction of homes, businesses and
agricultural holdings, the Court finds further that Israel has the obligation to make
reparation for the damage caused to all the natural or legal persons concerned. The Court
would recall that the essential forms of reparation in customary law were laid down by the
Permanent Court of International Justice in the following terms:
“The essential principle contained in the actual notion of an illegal act ⎯
a principle which seems to be established by international practice and in
particular by the decisions of arbitral tribunals ⎯ is that reparation must, as far
as possible, wipe out all the consequences of the illegal act and reestablish the
situation which would, in all probability, have existed if that act had not been
committed. Restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear; the award, if
need be, of damages for loss sustained which would not be covered by
restitution in kind or payment in place of it ⎯ such are the principles which
should serve to determine the amount of compensation due for an act contrary
to international law.” (Factory at Chorzów, Merits, Judgment No. 13, 1928,
P.C.I.J., Series A, No. 17, p. 47.)
153. Israel is accordingly under an obligation to return 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. In the event that such
restitution should prove to be materially impossible, Israel has an obligation to compensate
the persons in question for the damage suffered. The Court considers that Israel also has an
obligation to compensate, in accordance with the applicable rules of international law, all
natural or legal persons having suffered any form of material damage as a result of the
wall’s construction.
*
154. The Court will now consider the legal consequences of the internationally
wrongful acts flowing from Israel’s construction of the wall as regards other States.
155. The Court would observe that the obligations violated by Israel include certain
obligations erga omnes. As the Court indicated in the Barcelona Traction case, such
obligations are by their very nature “the concern of all States” and, “In view of the
importance of the rights involved, all States can be held to have a legal interest in their
protection.” (Barcelona Traction, Light and Power Company, Limited, Second Phase,
Judgment, I.C.J. Reports 1970, p. 32, para. 33.) The obligations erga omnes violated by
Israel are the obligation to respect the right of the Palestinian people to self-determination,
and certain of its obligations under international humanitarian law.
156. As regards the first of these, the Court has already observed (paragraph 88
above) that in the East Timor case, it described as “irreproachable” the assertion that “the
right of peoples to self-determination, as it evolved from the Charter and from United
Nations practice, has an erga omnes character” (I.C.J. Reports 1995, p. 102, para. 29). The
Court would also recall that under the terms of General Assembly resolution 2625 (XXV),
already mentioned above (see paragraph 88),
“Every State has the duty to promote, through joint and separate action,
realization of the principle of equal rights and self-determination of peoples, in
accordance with the provisions of the Charter, and to render assistance to the
United Nations in carrying out the responsibilities entrusted to it by the Charter
regarding the implementation of the principle . . .”
157. With regard to international humanitarian law, the Court recalls that in its
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, it stated that “a
great many rules of humanitarian law applicable in armed conflict are so fundamental to the
respect of the human person and ‘elementary considerations of humanity’ . . .”, that they are
“to be observed by all States whether or not they have ratified the conventions that contain
them, because they constitute intransgressible principles of international customary law”
(I.C.J. Reports 1996 (I), p. 257, para. 79). In the Court’s view, these rules incorporate
obligations which are essentially of an erga omnes character.
158. The Court would also emphasize that Article 1 of the Fourth Geneva
Convention, a provision common to the four Geneva Conventions, provides that “The High
Contracting Parties undertake to respect and to ensure respect for the present Convention in
all circumstances.” It follows from that provision that every State party to that Convention,
whether or not it is a party to a specific conflict, is under an obligation to ensure that the
requirements of the instruments in question are complied with.
159. Given the character and the importance of the rights and obligations involved,
the Court is of the view that all States are under an obligation not to recognize the illegal
situation resulting from the construction of the wall in the Occupied Palestinian Territory,
including in and around East Jerusalem. They are also under an obligation not to render aid
or assistance in maintaining the situation created by such construction. It is also for all
States, while respecting the United Nations Charter and international law, to see to it that
any impediment, resulting from the construction of the wall, to the exercise by the
Palestinian people of its right to self-determination is brought to an end. In addition, all the
States parties to the Geneva Convention relative to the Protection of Civilian Persons in
Time of War of 12 August 1949 are under an obligation, while respecting the United
Nations Charter and international law, to ensure compliance by Israel with international
humanitarian law as embodied in that Convention.
160. Finally, the Court is of the view that the United Nations, 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 régime, taking due account of the present Advisory Opinion.
*
* *
161. The Court, being concerned to lend its support to the purposes and principles laid
down in the United Nations Charter, in particular the maintenance of international peace and
security and the peaceful settlement of disputes, would emphasize 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 conclusion,
thereby establishing a just and lasting peace in the region.
162. The Court has reached the conclusion that the construction of the wall by Israel
in the Occupied Palestinian Territory is contrary to international law and has stated the legal
consequences that are to be drawn from that illegality. The Court considers itself bound to
add that this construction must be placed in a more general context. Since 1947, the year
when General Assembly resolution 181 (II) was adopted and the Mandate for Palestine was
terminated, there has been a succession of armed conflicts, acts of indiscriminate violence
and repressive measures on the former mandated territory. The Court would emphasize that
both Israel and Palestine are under an obligation scrupulously to observe the rules of
international humanitarian law, one of the paramount purposes of which is to protect
civilian life. Illegal actions and unilateral decisions have been taken on all sides, whereas,
in the Court’s view, this tragic situation can be brought to an end only through
implementation in good faith of all relevant Security Council resolutions, in particular
resolutions 242 (1967) and 338 (1973). The “Roadmap” approved by Security Council
resolution 1515 (2003) represents the most recent of efforts to initiate negotiations to this
end. The Court considers that it has a duty to draw the attention of the General Assembly,
to which the present Opinion is addressed, to the need for these efforts to be encouraged
with a view to achieving as soon as possible, on the basis of international law, a negotiated
solution to the outstanding problems and 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.
*
* *
163. For these reasons,
THE COURT,
(1) Unanimously,
Finds that it has jurisdiction to give the advisory opinion requested;
(2) By fourteen votes to one,
Decides to comply with the request for an advisory opinion;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Elaraby, Owada, Simma, Tomka;
AGAINST: Judge Buergenthal;
(3) Replies in the following manner to the question put by the General Assembly:
A. By fourteen votes to one,
The construction of the wall being built by Israel, the occupying Power, in the
Occupied Palestinian Territory, including in and around East Jerusalem, and its associated
régime, are contrary to international law;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Elaraby, Owada, Simma, Tomka;
AGAINST: Judge Buergenthal;
B. By fourteen votes to one,
Israel is under an obligation to terminate its breaches of international law; it is under
an obligation to cease forthwith the works of construction of the wall being built in the
Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle
forthwith the structure therein situated, and to repeal or render ineffective forthwith all
legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this
Opinion;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Elaraby, Owada, Simma, Tomka;
AGAINST: Judge Buergenthal;
C. By fourteen votes to one,
Israel is under an obligation to make reparation for all damage caused by the
construction of the wall in the Occupied Palestinian Territory, including in and around East
Jerusalem;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Elaraby, Owada, Simma, Tomka;
AGAINST: Judge Buergenthal;
D. By thirteen votes to two,
All States are under an obligation not to recognize the illegal situation resulting from
the construction of the wall and not to render aid or assistance in maintaining the situation
created by such construction; all States parties to the Fourth Geneva Convention relative to
the Protection of
Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while
respecting the United Nations Charter and international law, to ensure compliance by Israel
with international humanitarian law as embodied in that Convention;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Elaraby, Owada,
Simma, Tomka;
AGAINST: Judges Kooijmans, Buergenthal;
E. By fourteen votes to one,
The United Nations, 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 régime, taking due account of
the present Advisory Opinion.
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Elaraby, Owada, Simma, Tomka;
AGAINST: Judge Buergenthal.
Done in French and in English, the French text being authoritative, at the Peace
Palace, The Hague, this ninth day of July, two thousand and four, in two copies, one of
which will be placed in the archives of the Court and the other transmitted to the
Secretary-General of the United Nations.
(Signed) SHI Jiuyong,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judges KOROMA, HIGGINS, KOOIJMANS and AL-KHASAWNEH append
separate opinions to the Advisory Opinion of the Court; Judge BUERGENTHAL appends a
declaration to the Advisory Opinion of the Court; Judges ELARABY and OWADA append
separate opinions to the Advisory Opinion of the Court.
(Initialled) J.Y.S.
(Initialled) Ph.C.
___________
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