INTERNATIONAL COURT OF JUSTICE
9 July 2004
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 Gabc(íkovo-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 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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