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.
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