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Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall

Published online by Cambridge University Press:  27 February 2017

Richard A. Folk
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Extract

On July 9, 2004, the International Court of Justice issued its advisory opinion on the legal consequences of Israel’s construction of a security wall on occupied Palestinian territory, declaring that the wall was in violation of international law. The advisory opinion also indicated that Israel should forthwith cease construction of the wall, dismantle what had been so far constructed, and make reparations to the Palestinians for all damages caused by the project. On July 20, 2004, at the Tenth Emergency Session of the General Assembly, Resolution ES-10/15 was adopted by a vote of 150 in favor, 6 opposed, and 10 abstentions, demanding that Israel comply with the legal obligations as specified by the advisory opinion.

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. 42 - 52
Copyright
Copyright © American Society of International Law 2005

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References

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

2 This development is discussed in the contributions of Geoffrey R. Watson and David Kretzmer to this Agora, Geoffrey, R. Watson, The “Wall” Decisions in Legal and Political Context, 99 AJIL 6, 25 (2005) Google Scholar; Kretzmer, David, The Advisory Opinion: The Light Treatment of International Humanitarian JM,W, 99 AJIL 88, 101 n.105 (2005) Google Scholar.

3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 159 (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004) [hereinafter Advisory Opinion].

4 Advisory Opinion, supra note 3, Separate Opinion of Judge Buergenthal, para. 10 [hereinafter Buergenthal Opinion].

5 Id., para. 1.

6 Id.

7 Advisory Opinion, supra note 3, para. 56 (quoting Western Sahara, Advisory Opinion, 1975 ICJ REP. 25, 46, paras. 32-33 (Oct. 16)); see also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276(1970), Advisory Opinion, 1971 ICJ REP. 16, paras. 40, 48, 60 (June 21) [hereinafter Namibia Opinion],

8 Report of the Secretary-General Prepared Pursuant to General Assembly Resolution ES-10/13, at 3, UN Doc. A/ES-10/248 (2003) [hereinafter S-G Report]. The secretary-general’s report covers the period from April 14, 2002, to November 20, 2003; it includes a later Written Statement of the United Nations and is accompanied by a dossier of documents on the question posed to the Court, both available at <http://www.icj-cij.org>. Other useful information before the Court is contained in Humanitarian and Emergency Policy Group (HEPG), The Impact of Israel’s Separation Barrier On Affected West Bank Communities: Construction Of The Barrier, Access, And Its Humanitarian Impact (Mar. 2004) (Update 2).

9 Status of Eastern Carelia, Advisory Opinion, 1923 PCIJ (ser. B) No. 5 (July 23) [hereinafter Eastern Carelia].

10 I welcome this development as an appropriate expansion of the Court’s advisory function. But see Pomerance, Michla, The ICJ’s Advisory Jurisdiction and the Crumbling Wall Between the Political and the Judicial, 99 AJIL 26 (2005) CrossRefGoogle Scholar (in this Agora).

11 The Court may give an advisory opinion on any legal question” properly referred to it. ICJ STATUTE Art. 65, para. 1. The word “may” is relied upon to uphold the discretionary option to refuse such a request, despite the existence of jurisdiction. Judge Buergenthal’s entire rationale in his declaration is based on the claim that the insufficiency of evidence to decide the legal question properly was grounds for a discretionary refusal.

12 Advisory Opinion, supra note 3, para. 44 (quoting Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), Advisory Opinion, 1950 ICJ REP. 65, 71 (Mar. 30) [hereinafter Peace Treaties]).

13 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICf REP. 66 (July 8).

14 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226 (July 8) [hereinafter Nuclear Weapons].

15 Reference is made here to several advisory opinions in addition to Nuclear Weapons, including Namibia Opinion, supra note 7; Peace Treaties, supra note 12; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, 1962 ICJ REP. 151 (July 20). Advisory Opinion, supra note 3, paras. 44, 48.

16 SC Res. 1515 (Nov. 19, 2003).

17 Advisory Opinion, supra note 3, para. 53.

18 Id., para. 61 (quoting Nuclear Weapons, supra note 14, para. 16).

19 Id., para. 62.

20 Id.

21 In this regard Professor Pomerance’s lines of criticism strike me as overly protective of the sensitivities of sovereign states. Moreover, in my view, she fails to take account of the fundamental shifts in the relations between states and the United Nations, as the embodiment of an inchoate organized international community, that have occurred in the last fifty or more years. See Pomerance, supra note 10.

22 Eastern Carelia, supra note 9.

23 For two perspectives on these post-Westphalian developments, see Richard, A. Falk, on Humane Governance: Toward a New Global Politics (1995) Google Scholar; Anne-Marie, Slaughter, A New World Order (2004). Google ScholarFor a perceptive assessment of the erosion of sovereignty, see Joseph, A. Camilleri & Falk, Jim, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (1992) Google Scholar. For an argument that the Westphalian world order was much more nuanced with respect to the role of sovereignty than is generally believed, see Stephen, D. Krasner, Sovereigns: Organized Hypocrisy (1999) Google Scholar.

24 At the same time, the contributions of several other participants in this Agora do not bear out this optimism, suggesting some possibly overlapping explanations, such as reluctance to challenge the viewpoints associated with the political postures of Israel and the United States, and unwillingness to lend credence to the expanding role of the United Nations system in its relations with sovereign states.

25 Buergenthal Opinion, supra note 4, para. 5.

26 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.

27 S-G Report, supra note 8; Advisory Opinion, supra note 3, paras. 84, 122. For a sophisticated interrogation of this cluster of issues, see Kretzmer, David, The Advisory Opinion: The Light Treatment of International Humanitarian Law, 99 AJIL 88 (2005) CrossRefGoogle Scholar (in this Agora).

28 Advisory Opinion, supra note 3, Separate Opinion of Judge Higgins, 43 ILM at 1058, para. 2.

29 Id., para. 7.

30 Id., paras. 17, 18.

31 Id., para. 20.

32 Id., para. 40. Some of the other participants in the Agora do not match their emphasis on Judge Higgins’s criticisms of the opinion with attention to her more significant solidarity with the main opinion on the core issues before the Court.

33 Peace Treaties, supra note 12, at 71; see also Western Sahara, supra note 7, para.

34 Advisory Opinion, supra note 3, para. 47.

35 1 The Oxford English Dictionary 193 (2d ed. 1989).

36 See Advisory Opinion, supra note 3, paras. 46-50. •

37 For a contrary view, see Pomerance, supra note 10.

38 See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ REP. 11 (Nov. 26).

39 See, for example, id.; Nuclear Weapons, supra note 14; United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ REP. 3 (May 24); as well as cases involving South Africa and this case on Israel’s security wall, instances where countries were unwilling to adopt positions that upheld the relevant rules of international law, some of them contentious and some of them advisory cases.

40 For a contrary perspective on this matter of judicial function, see Pomerance, supra note 10, at 27 (using as an example the unwillingness of the U.S. Supreme Court to pronounce on legal matters that are not embedded in a legal dispute between parties). Her position fails, in my view, to account for the rather different role of the ICJ and, for that matter, of international law.

41 Advisory Opinion, supra note 3, Separate Opinion of Judge Koroma, 43 ILM at 1056, para. 8.

42 Id., para. 10

43 Address Before a Joint Session of the Congress on the State of the Union, 40 WEEKLY COMP. PRES. DOC. 94, 97 (Jan. 20, 2004).

44 See Richard, A. Falk, The Great Terror War (2003) Google Scholar. On the wider concerns relating to international law and world order, see Richard, A. Falk, The Declining World Order: America’s Imperial Foreign Policy (2004) Google Scholar; Iraq: One Year Later, 98 ASIL Proc. 261 (2004) Google Scholar.

45 Written Statement of the United States of America 31 (Jan. 30, 2004), Advisory Opinion, supra note 3; Written Statement of the Government of Israel on Jurisdiction and Propriety 119 (Jan. 30, 2004), Advisory Opinion, supra. The written statements are available at <http://www.icj-cij.org>.

46 Advisory Opinion, supra note 3, para. 162.

47 For an argument along these lines, see Richard, A. Falk, International Law and the Israel/Palestine Peace Process, 28 Hastings Int’l & Comp. L. Rev. (forthcoming 2005)Google Scholar. In this connection, I share Professor Watson’s enthusiasm for Oslo if it is understood as a shared resolve by Israelis and Palestinians to seek a solution through diplomacy rather than by way of violence, see Watson, supra note 2, at 22-24, 26. But if the Oslo framework and experience is held up as a model for the future, I am far more critical of it.

48 An early, yet still convincing, analysis along these lines is to be found in Oscar Schachter, The Relation of Law, Politics and Action in the United Nations, 109 RECUEIL DES COURS 165, 196 (1963 II).

49 See Myres, S. McDougal & Richard, N. Gardner, The Veto and the Charter: An Interpretation for Survival, 60 Yale L.J. 258 (1951) Google Scholar. For a more general approach that includes discussions of these issues bearing on the United Nations, see Myrks, S. Mcdougal, Harold, D. Lasswell, & James, C. Miller, The Interpretation of Agreements and World Public Order (1967) Google Scholar.

50 See International Commission on Intervention and State Sovereignty: Responsibility to Protect (2001) Google ScholarPubMed.

51 See Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned 163–98 (2000) Google Scholar (I was a member of the commission).