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The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense

Published online by Cambridge University Press:  27 February 2017

Ruth Wedgwood
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Extract

On December 8, 2003, the International Court of Justice was requested by the United Nations General Assembly to give an advisory opinion on the “legal consequences” of the security fence under construction by Israel in the West Bank, also variously called “security barrier” and “wall.” The General Assembly sought referral to the Court by a vote of 90 states—but another 74 states abstained, and 8 states voted in opposition. Careful consideration of the case was rendered especially difficult by the decision of the Court to set a truncated briefing schedule, permitting only six weeks for written submissions on jurisdiction and the merits. An even greater concern was the danger, perhaps realized, that the Court’s opinion might be read as prejudging issues central to negotiations in the “Roadmap” political process seeking peace in the Middle East. The hope for some coherence in the approach of the international community to the resolution of a difficult and violent conflict is not otiose, especially where a stable settlement will require ongoing diplomatic, economic, and security support. For that very reason, two of the road map’s sponsors—the United States and the Russian Federation—urged the Court to take account of the impact that any decision might have on the negotiating process. The European Union, as a third member of the “Quartet” sponsoring the road map, together with the ten acceding states to the European Union and fifteen other states, urged the Court to decline to render any advisor)’ opinion at all because of the “compelling” circumstances of the peacemaking process.

Type
Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory
Information
American Journal of International Law , Volume 99 , Issue 1 , January 2005 , pp. 52 - 61
Copyright
Copyright © American Society of International Law 2005

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References

1 GA Res. ES-10/14 (Dec. 8, 2003). The resolution refers to the structure as the “wall.”

2 Letter from Secretary-General Kofi Annan to President Shi Juyong, International Court of Justice (Dec. 8, 2003), available at <http://www.icj-cij.org>.

3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Request for Advisor) Opinion (Int’l Ct. Justice Dec. 19, 2003).

4 Five states filed pleadings urging the Court to give weight to the consequences of its decision for the negotiating process. These states were France, Japan, Norway, the Russian Federation, and the United States.

5 Countries taking this position included Australia, Belgium, Cameroon, Canada, the Czech Republic, Germany, Greece, Israel, Italy, the Marshall Islands, Micronesia, the Netherlands, Palau, Spain, and the United Kingdom. Israel also took the view that the Court entirely lacked jurisdiction.

6 SC Res. 1515 (Nov. 19, 2003); see also Transcript of the Press Conference Held by the UN Secretary-General and the Foreign Ministers of the Five Permanent Members of the Security Council (Sept. 13, 2003), available at <http://www.un.org/apps/sg/offthecuff.asp?nid=484>, also available as U.S. State Department Press Release in LEXIS, News Library, Allnews File (“The permanent members of the Security Council recognized that both sides have obligations under the Quartet’s road map and must fulfil them and that it is now essential to go ahead with its implementation.”)

7 See Geoffrey, R. Watson, The “Wall” Decisions in Legal and Political Context, 99 AJIL 6, 8 (2005) Google Scholar (in this Agora).

8 ICJ STATUTE Art. 53(2).

9 Cf. id., Art. 68.

10 On the Court’s modalities of fact-finding, see Highet, Keith, Evidence and Proof of Facts, in The International Court of Justice Atacrossroads 355, 374 Google Scholar ( Lori Fisler, Damrosch ed., 1987 Google Scholar) (stating that “although the Court has broad flexibility and wide powers in matters relating to evidence, it has not in fact used them to their full potential”); White, Gillian, The Use of Experts by the International Court, in Fifty Years of the International Court of Justice 528 Google Scholar ( Lowe, Vaughan & Malgosia Fitzmaurice, eds., 1996 Google Scholar) (asserting that ICJ has power under Article 68 of the ICJ Statute to provide for taking of evidence under Article 48 or to order an inquiry or expert opinion under Article 50).

11 Judge Owada suggested that Israel was entitled to seek the appointment of an ad hoc judge in the advisory opinion proceedings, since this would have been its right in a contentious case. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004) [hereinafter Advisory Opinion], Separate Opinion of Judge Owada, 43ILM at 1091, para. 19; cf. Western Sahara, Advisory Opinion, 1975 ICJ REP. 12, 15-16, para. 9 (Oct. 16) (appointment of ad hoc judge in advisory jurisdiction); Oral Statement by Mr. de Villiers, Representative of the Government of South Africa, 1971 ICJ Pleadings (2 Legal Consequences for States of the Continued Presence of South Africa in Namibia) 5-23 (South Africa invoking rule providing for mandatory appointment of judges ad hoc “if the advisory opinion is requested upon a legal question actually pending between two or more States”). See generally Pomerance, Michla, The Admission of Judges Ad Hoc in Advisory Proceedings: Some Reflections in the Light of the Namibia Case, 67 AJIL 446 (1973) CrossRefGoogle Scholar; Pomerance, Michla, The Advisory Role of the International Court of Justice and Its Judicial’ Character: Past and Future Prisms, in The International Court of Justice: Its Future Role After Fifty Years 271 Google Scholar ( Muller, A. S. ,Raic, D. , & Thuránszky eds.,, J. M. 1997); Krzysztof Skubiszewski, Commentary, in Increasing the Effectiveness of The International Court of Justice 378, 383 Google Scholar n.26 ( Peck, Connie & Roy, S. Lee eds., 1997 Google Scholar) (“questionable decision” to deny appointment of judge ad hoc in the Namibia case).

12 Advisory Opinion, supra note 11, para. 57.

13 See, e.g., David Makovsky, How to Build a Fence, FOREIGN AFF., Mar ./Apr. 2004, at 50. See also Almog, Doron, The West Bank Fence: A Vital Component in Israel’s Strategy of Defense (2004) Google Scholar; Makovsky, David, A Defensible Fence: Fighting Terror And Enabling A two-State Solution (2004) Google Scholar (comparing proposed adjustments in Israeli border under “Clinton Scenario” and “Geneva Accords” with current planned route offence). Ambassador Dennis Ross, the former U.S. special Middle East coordinator for the peace process, has noted that “in the absence of terror, there would be no need for a security barrier. Conversely, with the persistence of terror, the barrier is inevitable.” He continues by observing: “So long as an agreement between the parties remains elusive, and while the terror and siege continue, the Israeli security barrier will remain the only alternative for these beleaguered populations.” Dennis Ross, Foreword to id. at ix, x.

14 See, e.g., Israeli Ministry of Defense, Israel’s Security Fence: Operational Concept, at <http://www.securityfence.mod.gov.il/Pages/ENG/operational.htm> (last modified Nov. 17, 2003) (claiming that fence improves defensive capabilities through “[prevention of terror and weapons emanating from [the West Bank] into Israel”; “[minimizing transfer of weapons from Israel to the areas controlled by the Palestinian Authority”; and “[prevention of effective shooting against Israeli population and vital infrastructure installations”); see also Israeli Ministry of Defense, Execution Aspects, at <http://www.seamzone.mod.gov.i1/Pages/ENG/execution.htm#5> (last modified July 1, 2004); Israeli Ministry of Foreign Affairs, Victims of Palestinian Violence and Terrorism Since September 2000 (Jan. 1, 2005), at <http://www.mfa.gov.il>.

15 See, e.g., HCJ 2056/04, Beit Sourik Village Council v. Israel (June 30, 2004), 43 ILM 1099 (2004).

16 See, e.g., Separate Opinion of Judge Owada, supra note 11, para. 22 (available evidence was “wanting” as to the “Israeli side of the picture”); Advisory Opinion, supra note 11, Separate Opinion of Judge Higgins, 43 ILM at 1058, para. 16 (Court’s treatment of history of dispute was “neither balanced nor satisfactory”); Advisory Opinion, supra, Separate Opinion of Judge Buergenthal, 43 ILM at 1078, para. 3 (“nature” and “impact” of cross-Green Line attacks were “never really seriously examined by the Court”); see also Written Statement of the United States 20, para. 3.5 (Jan. 30, 2004), Advisory Opinion, supra (“an advisory setting is ill-suited to application of principles of law to particular factual situations where the lack of participation by an interested party may deprive the Court of necessary information, and the format of the proceedings is ill-suited to the development of a factual record”).

17 Western Sahara, supra note 11, at 28-29, para. 46.

18 See, e.g., B’Tselem, Not All It Seems—Preventing Palestinians Access to Their Lands West of The Separation Barrier in the Tulkarm-Qalqiliya Area( June 2004); B’Tselem, Facing the Abyss: The Isolation of Sheikh Sa’ad Village—Before and After the Separation Barrier (Feb. 2004), both available at <http://www.btselem.org> ;Ir Amim, The Separation Barrier in Jerusalem,available at <http://www.ir-amim.org.il> (visited Jan. 15, 2005); see also Beit Sourik Village Council v. Israel, supra note 15.

19 Each of these groups has been designated as a “terrorist” organization under Executive Order No. 13,224, 66 Fed. Reg. 186 (Sept. 25, 2001). See also U.S. Dep’t of State, Patterns of Global Terrorism 2003 (Apr. 2004), available at <http://www.state.gov/s/ct/rls/pgtrpt/2003/>. Hamas, Hezbollah, the Palestine Islamic Jihad, and the Popular Front are funded, at least in part, by the governments of Iran and Syria, according to the State Department. The source of funding for the Al Aqsa Martyrs Brigades has not been determined, according to the State Department, but Israel has asserted that it was organized and funded by sources close to the leadership of the Palestinian Authority.

20 Tanzim is said to be part of the Fatah organization, which is the largest group within the Palestinian Authority. Israel’s War Against Terror: The Tanzim, at <http://www.israel-wat.com/q3_eng.htm> (visited Jan. 12, 2005).

21 Schengen Agreement on the Gradual Abolition of Checks at Their Common Borders, June 14, 1985, and the Convention Applying the Agreement, June 19, 1990, Benelux states-FRG-Fr., 30 ILM 68 (1991).

22 GA Res. ES-10/14, supra note 1.

23 Israel-Jordan Armistice Agreement, Apr. 3, 1949, Art. VI(9), 42 UNTS 303 (“The Armistice Demarcation Lines defined in . . . this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.”).

24 King Hussein, Address to the Nation (July 31, 1988), available at <http://www.kinghussein.gov.jo/88July31.html>; See also Hussein’s, H. M. King Statement on the Severance of Jordan’s Relationship with the West Bank, 1987-88 Palestine Y.B. Int’l L. 297, 299 Google Scholar. Jordan signed a peace treaty with Israel in 1994.

25 President George Bush, Address Before a Joint Session of the Congress on the Cessation of the Persian Gulf Conflict, March 6, 1991, available at <http://bushlibrary.tamu.edu/research/papers/1991/91030600.html>.

26 A Performance-Based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (Apr. 30, 2003), UN Doc. S/2003/529, annex, available at <http://www.europa.eu.int/comm/external_relations/mepp/roadmap.htm> [hereinafter Road Map].

27 SC Res. 242, para. 1 (Nov. 22, 1967).

28 Road Map, supra note 26.

29 Oil Platforms (Iran v. U.S.), Merits, 2003 ICJ REP. 161 (Nov. 6), 42 ILM 1334 (2003); see William Howard, Taft IV, Self-Defense and the Oil Platforms Decision, 29 Yale J. Int’l L. 295 (2004) Google Scholar.

30 Oil Platforms, supra note 29, para. 51.

31 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14 (June 27).

32 United Nations, A More Secure World : Our Shared Responsibility, Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565, para. 159 (2004), available at <http://www.un.org/secureworld> (emphasis added).

33 Id., para. 160. “Terrorism” includes

any action . . . that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

Id., para. 164. This is a welcome statement of principle, against a more ambiguous declarative history in the General Assembly. As Adam Roberts notes: “UN resolutions have given no clue as to whether liberation struggles ought to be fought within limits derived from, or akin to, the laws of war. This omission has been especially serious since terrorist attacks against wholly innocent civilian targets were already alarmingly widespread in the early 1970’s.” Sir Adam concludes that the “real criticism is that UN resolutions have ... lost sight of laws of war principles as a possible restraint not just on occupying powers, but also on liberation movements.” Adam Roberts, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 AJIL 44, 82 (1990).

34 Advisory Opinion, supra note 11, para. 139.

35 Military and Paramilitary Activities in and Against Nicaragua, supra note 31. :

36 Prosecutor v. Tadić, Opinion and Judgment, No. IT-94-1-T (May 7, 1997).

37 SC Res. 1390 (Jan. 16, 2002), 41 ILM 511 (2002). For Resolutions 1368 and 1373, see note 39 infra.

38 Advisory Opinion, supra note 11, para. 139.

39 SC Res. 1368 (Sept. 12, 2001), 40 ILM 1277 (2001); see also SC Res. 1373 (Sept. 28, 2001)’, 40 ILM at 1278.

40 Advisory Opinion, supra note 11, para. 139.

41 Id

42 Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, Isr.-PLO, 32 ILM 1525 (1993); see also Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995, Isr.-PLO, 36 ILM 551 (1997).

43 Roberts, supra note 33, at 67. He makes this statement in the following context:

The PLO has sometimes advanced the view that Israel is an aggressor or illegal occupant, and as such has no rights over the inhabitants under international law. . . .

. . . This argument is questionable on several grounds. First, it is debatable whether Israel was an “aggressor” in 1967, or acted out of a basically defensive intent. There is also reason to doubt whether the occupation itself (as distinct from some of the actions by the occupying power) has been definitively considered illegal by the international community. But these points pale into insignificance beside the cardinal principle that the laws of war, including the law on occupations, are widely viewed as applying equally to all states, whether aggressors or victims of aggression. Moreover, it seems strange to insist that Israel or any other country could be expected to carry out all its obligations under the conventions, without at the same time having certain rights, or at least being “suffered” by international law to take certain actions.

Id. at 66-67 (footnote omitted).

44 The 1949 armistice line (or Green Line) extends beyond the boundaries of the 1947 UN partition plan in some places, especially in the north. The UN partition plan was not accepted by the Arab states in 1947, and it may well be considered to have fallen into some form of desuetude. The 1949 armistice line set the working boundary between Israel and Jordanian authorities on the West Bank at the time of Israel’s admission to the United Nations in 1949.

45 Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 49(6), 6 UST 3516, 75 UNTS 287.

46 Advisory Opinion, supra note 11, para. 135.

47 See Elements of Crimes, Art. 8(2)(b)(viii), in Official Records of the First Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, September 3-10,2002, UN Doc. ICC-ASP/1/3, at 108,135, UN Sales No. E.03.V.2 (2002),available at<http://www.icc-cpi.int>. The element in Article 8(2)(b)(viii) is described as “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.” A footnote qualifies that description: “The term ‘transfer’ needs to be interpreted in accordance with the relevant provisions of international humanitarian law.” Id. n.44.

48 Roberts, supra note 33, at 84.

49 Id.

50 Id. at 85. But see HCJ 606/78, Ayoub v. Minister of Defense, 33(2) P.D. 113 (Beth El case), translated in 1 Military Government in the Territories Administered by Israel 1967-1980: The Legal Aspects 371 (Meir, Shamgar ed., 1982 Google Scholar); HCJ 390/79, Dweikat v. Israel, 34(1) P.D. 1 (Elm Moreh case), translated in Military Government in the Territories Administered by Israel, supra, at 404 (striking down requisition of land for civilian settlement, but stating, in concurring opinion of Justice Witkon, that “the question whether voluntary settlement falls under the prohibition of ‘transferring sections of the population’ within the meaning of Article 49[6] of the Geneva Convention is not an easy one and as far as we know, no answer has yet been found in international jurisprudence.”); Dinstein, Yoram, The International Law of Belligerent Occupation and Human Rights, 1978 ISR. Y.B. Hum. Rts. 105 Google Scholar

51 See The President’s News Conference with Prime Minister Mahmoud Abbas of the Palestinian Authority (July 25, 2003), 39 Weekly Comp. Pres. Doc. 973, 976 (July 28, 2003)Google Scholar:

Let me talk about the wall. I think the wall is a problem, and I discussed this with Ariel Sharon. It is very difficult to develop confidence between the Palestinians and the Israel—Israel—with a wall snaking through the West Bank. And I will continue to discuss this issue very clearly with the Prime Minister.

. . .

. . . [T]hese are all difficult issues. .. . [W]e’re discussing them now in a frank way, which is progress unto itself. . . .

. . . And the more confidence we gain, the more easy it’s going to be to tackle these very difficult issues. :

52 See id.

53 UNITED NATIONS, supra note 32, paras. 160, 161, 164; note 32 supra (containing the panel’s definition of terrorism).