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More than a Huge Imbalance: The ICJ's Advisory Opinion on the Legal Consequences of the Construction of the Barrier

Published online by Cambridge University Press:  04 July 2014

Karin Calvo-Goller
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Abstract

This note deals with some of the procedural and substantive issues raised by the Legal Opinion rendered by International Court of Justice on the legality of the separation barrier. In the note it is argued that the motivations behind the General Assembly's request where political and not legal. It is contended that he partiality of the choice of the dossiers' material as submitted, issues relevant to propriety and the judicial character of the Court, should have led it to decline to give the requested opinion. The note is critical on the participation of Judge Elaraby, which the note argues affects the fairness and impartiality of the proceedings and affect the value of the Advisory Opinion. Israel did not consent to the exercise of jurisdiction by the Court. The problems inherent in the lack of relevant factual basis and in the fact-finding function of the Court, its total disregard of Israel's needs to protect its citizens against Palestinian terrorism, and the categorical and unmotivated rejection of Israel's security claims, led to an unbalanced and unjust result. Basic humanitarian law principles relating to the protection of civilians and international human rights are disregarded by the Court when it comes to the right to life of Israeli civilians and to their right to be protected against terror attacks. The note contends that the Court's denial of Israel's right to self-defense lacks legal and factual basis. The procedural and substantive deficiencies of the Advisory Opinion affect its value and persuasiveness.

Type
Research Article
Information
Israel Law Review , Volume 38 , Issue 1-2: Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier , Spring Winter 2005 , pp. 165 - 188
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2004

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Footnotes

*

Senior Lecturer, The Academic College of Law (Ramat-Gan).

References

1 ResolutionA/RES/ES-10/14, 8 December 2003 (hereinafter: “Resolution requesting an advisory opinion”)

2 The resolution uses the term “wall” rather than the more neutral term “barrier” used in the Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13 (A/ES-10/248 (2003)) (hereinafter: “The Report of the Secretary General”).

3 Israel Ministry of Foreign Affairs “Victims of Palestinian Violence and Terrorism Since September 2000” available at www.mfa.gov.il/mfa/terrorism.

4 S/RES/1515, 19 November 2003.

5 Statement to the 10th Emergency Special Session, 8 December 2003. A/ES-10/PV.23 (2003) 19.

6 Ibid., at 21.

7 Among other issues that gave rise to serious concern about the fairness of the proceedings as of the preliminary phase: the very short time allowed (six weeks) for the filing of written statements. On this matter, Israel submitted that “The Court has fixed time-limits that are so short as significantly to affect the ability of Israel to put its case…” (Written Statement of the Government of Israel on Jurisdiction and Propriety available at http://www.icj-cij.org/icjwww/idocket/imwp/imwpstatements/iWrittenStatement_17_Israel.pdf, para. 2.10) (hereinafter: “Written Statement of the Government of Israel”). “Even if Israel had considered it appropriate to address the issues of substance, the procedure adopted by the Court would not have allowed it properly to do so” (Ibid., at para. 2.12).

Under Chapter IV on Advisory Opinions, the Statute of the International Court of Justice provides that “States and organizations having presented written or oral statements or both shall be permitted to comment on the statements made by other states or organizations…within the time limits which the Court, or, the President shall decide in each particular case”. “Palestine” was permitted by the Court to submit a written statement and to participate in the hearing of the case. The contentious nature of the proceedings is thereby underlined. Israel contended that “Palestine” was accorded a status it does not possess under international law. Article 35(1) of the Statute of the Court provides that the Court “shall be open to states parties to the present Statute”. Article 66(2) of the same Statute, refers to “any state entitled to appear before the Court or international organization…”.

8 Under Article 65(2) of the Statute, “Questions upon which the advisory opinion of the Court is asked shall be laid before the Court…and accompanied by all documents likely to throw light upon the question.”

9 Written Statement of the Government of Israel, supra n. 7, at para. 2.7.

10 Resolution requesting an advisory opinion, supra n. 1.

11 The meetings of the 10th Emergency Special Session concentrate on “illegal Israeli actions in occupied territories”, “repeated violations of international law by Israel”, “illegal Israeli actions in occupied East Jerusalem”, “the Palestine question”, etc.

12 Written Statement of the Government of Israel, supra n. 7, at 15.

13 Sami, Aziza, “Nabil Elaraby: A Law for All Nations” Al-Ahram, Weekly Online, 16-22 August 2001, Issue 547 available at http://weekly.ahram.org.eg/2001/547/profile.htm Google Scholar.

14 Written Statement of the Government of Israel, supra n. 7, at 15.

15 Under Article 17(2) of the Statute of the Court “No Member may participate in the decision of any case in which he has previously taken part as an agent, counsel, or advocate for one of the parties, or as a member of a national or international court…or in any other capacity”.

16 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request for Advisory Opinion), Order, 30 January 2004 available at http://www.icj-ij.org/icjwww/idocket/imwp/imwp_advisory_opinion/imwp_advisory_opinion_declaration.

17 Ibid., at para. 8

18 Dissenting Opinion of Judge Buergenthal available at http://www.icj-ij.org/icjwww/idocket/imwp/imwp_advisory_opinion/imwp_advisory_opinion_declaration_buergenthal.htm (hereinafter: “Judge Buergenthal's dissent”).

19 Ibid., at para. 10

20 Ibid., at para 11.

21 Ibid., at para. 13.

22 Prosecutor v. Furundzija, IT-95-17/1-T, Judgment of 21 July 2000. Hauschildt v. Denmark, ECourt HR, 24 May 1989 (Series A-154) para 46. See also, R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex. P. Pinochet Ugarte (No. 2) [2000] 1 AC 119 (H.L.(E.)); Miglin v. Miglin, [2003] 1 S.C.R. 303. Article 34(d) of the Rules and Procedure and Evidence of the International Criminal Court provides that “Expression of opinions, through the communication media, in writing or in public actions that, objectively, could adversely affect the required impartiality of the person concerned”, are a ground for disqualification of a judge. Finalised Draft Text of the Rules of Procedure and Evidence, PCNICC/2000/INF/3/Add. 1 (2000). Amerasinghe, Chittharanjan Felix, “Judicial Independence- An Enduring and Widespread Social Value” (2000) CIJL Yearbook 13 Google Scholar.

23 Prosecutor v. Furundzija, supra n. 22, at para. 189.

24 The Report of the Secretary General, supra n. 2.

25 Supra n. 7, at para. 2.24.

26 Ibid., at para 2.25.

27 Ibid., at para. 2.26 There was no reference in the Report to relevant legally binding Security Council Resolutions reaffirming “the inherent right of individual and collective self-defense” against terrorism nor “the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts” as reaffirmed by resolution 1373 (2001).

28 The Advisory Opinion ignores the existence of Jewish rights under Article 2 of the Mandate for Palestine (League of Nations, Official Journal, August 1922, at 1007). The legal history of the territories as recounted in the “brief analysis of status of the territories” in the Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory, Advisory Opinion of 9 July 2004 Google Scholar, I.C.J. See this issue of the Israel Law Review: “Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory” (2005) 38(1–2) Is.L.R. 17 CrossRefGoogle Scholar (hereinafter: “Legal Consequences of the Construction of a Wall”) para. 70 contains errors of law for which there is no excuse. The Mandate for Palestine was not established under paragraph 4 of Article 22 of the Covenant of the League of Nations as stated in the Advisory Opinion. Article 95 of the Treaty of Sèvres (League of Nations Treaty Series N. 11 (1920)), explicitly provides that paragraph 4 of Article 22 cited in paragraph 70 of the Opinion, did not apply to the Arab inhabitants living within the area covered by the Mandate for Palestine. In this context, recalling the principles deriving from the International Status of South West Africa case (1950 I.C.J. 132), and implying that they were applicable to the Arab population in the area, is tantamount to rewriting history.

29 Interpretation of Peace Treaties, Advisory Opinion, 1950 I.C.J. 65, 72. (hereinafter: “Interpretation of Peace Treaties”).

30 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, at paras. 10 and 14.

31 The Case of the Northern Cameroons (Cameron v. United Kingdom), Preliminary Objections, 1963 I.C.J. 15, 30 (hereinafter: “The Case of the Northern Cameroons”); Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 21. (hereinafter: “Western Sahara”); Applicability of Article VI. Section 22, of the Convention on the Privileges and Immunities of the United Nations, 1989 I.C.J. 177, 191. (hereinafter: “Privileges and Immunities Case”).

32 Western Sahara, supra n. 31, at 23; Interpretation of Peace Treaties, supra n. 29, at 71, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15, 19.

33 The Case of the Northern Cameroons, supra n. 31, at 30.

34 Written Statement of the Government of Israel, supra n. 7, at 99-102. Beyond those noted above, Israel submitted further arguments pertaining to jurisdiction and propriety for which the Court should decline to render the advisory opinion.

35 In the Interpretation of Peace Treaties case, supra n. 29 for example, Bulgaria, Hungary and Romania contending that if the Court rendered an advisory opinion, it would offend the principle that no judicial proceedings relating to a question pending between States can take place without their consent. The Court concluded to give the requested opinion, but stressed that the legal position of the parties to the dispute cannot in any way be compromised by the answers the Court may give in its opinion, Ibid., at 71.

36 Status of Eastern Carelia, Advisory Opinion 1923 P.C.I.J., Series B. N. 5, 27-29. Western Sahara, supra n. 31, at 25. In this case the Court expressly noted that the lack of consent should oblige the Court to refuse to render an opinion “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”

The Court adopted the same approach in the Privileges and Immunities Case, supra n. 31, stating that it must consider whether “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” (Ibid., at 191).

37 Western Sahara, supra n. 31, at 25. On absence of consent see Pomerance, Michla, The Advisory Function of the International Court in the League and U.N. Eras (Baltimore, John Hopkins University Press, 1973) 287–296 Google Scholar.

38 Privileges and Immunities Case, supra n. 31, at 191.

39 Declaration of Principles on Interim-Self-Government Arrangements, 32 I.L.M. 1525 (1993) (Article 15), Israeli-Palestinian Interim Agreement on the West Bank and on the Gaza Strip, 28 September 1995 (Article 21). These agreements were not superceded by the “Road Map”.

40 Written Statement of the Government of Australia, Order of the International Court of Justice of 19 December 2003, Legal Consequences Arising from the Construction of the Wall in the Occupied Palestinian Territory (Request for Advisory Opinion), 8 available at http://www.icj-cij.org/icjwww/idocket/imwp/imwpstatements/iWrittenStatement_07_Australia.pdf (hereinafter “Written Statement of the Government of Australia”).

41 Resolution A/RES/ES-10/14 (2003).

42 Written Statement of the Government of Australia, supra n. 40 at 3.

43 Legal Consequences of the Construction of a Wall, supra n. 28, at para. 1.

44 Judge Buergenthal's Dissent, supra n. 18, 1 para. 1. Judge Owada expressed “serious reservations about the way in which the Court has proceeded in this case”, Legal Consequences of the Construction of the Wall, Separate Opinion of Judge Owada, 1, para. 2 available at http://www.icj-cij.org/icjwww/idocket/imwp/imwp_advisory_opinion/imwp_advisory_opinion_separate_owada.htm (hereinafter: “Judge Owada's Separate Opinion”).

45 Legal Consequences of the Construction of a Wall, supra n. 28, at para. 48.

46 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 I.C.J. 24, at para. 34.

47 Legal Consequences of the Construction of a Wall, supra n. 28, at para. 49.

48 Resolution 57/107 of 3 December 2002 as cited in ibid.

49 Ibid., at para. 50.

50 Legal Consequences of the Construction of a Wall, Separate Opinion of Judge Higgins, 3, para. 12 available at www.icj-cij.org/icjwww/idocket/imwp/imwp_advisory_opinion/imwp_advisory_opinion_separate_higgins.htm (hereinafter: “Judge Higgins' Separate Opinion”).

51 Ibid.

52 The Palestinian side, although not being a state has been recognized international status, it has signed several international agreements, has observer status in the United Nations and is no doubt an international entity.

53 Legal Consequences of the Construction of a Wall, supra n. 28, at para. 50.

54 In the Advisory Opinion, the Court referred thirteen times to the Western Sahara case, supra n. 31.

55 Western Sahara, supra n. 31, at 26-27.

56 Judge Higgins' Separate Opinion, supra n. 50, at 1, para. 13.

57 Judge Owada's Separate Opinion, supra n. 44, at 4, para. 11. Judge Higgins found that “It is apparent (not least from the wording of the request to the Court) that an attempt has been made by those seeking the Opinion to assimilate the Opinion on the wall to that obtained from the court regarding Namibia. Judge Higgins' Separate Opinion, supra n. 50, at 1, para. 2.

58 International Status of South West Africa, supra n. 28; Voting Procedures on Questions relating to Reports and Petitions concerning the Territory of South West Africa, Advisory Opinion, 1955 I.C.J. 67; Admissibility of Hearings of Petitioners by the Committee South West Africa, Advisory Opinion, 1956 I.C.J. 23.

59 Judge Higgins' Separate Opinion, supra n. 50, at 1, para. 3.

60 See Written Statement of the Government of Israel, supra n. 7.

61 Ibid. 7. For example, Israel stressed that the sole purpose of the barrier was to prevent terrorist attacks launched from the territories. Para. 80 of the Advisory Opinion reads: “The Report of the Secretary-General states that: “…the Government of Israel has since 1996 considered plans to halt infiltrations into Israel from the central and northern West Bank…” According to that report, a plan of this type was approved for the first time by the Israeli Cabinet in July 2001…”

62 Legal Consequences of the Construction of a Wall, supra n. 28, at para. 58

63 Ibid., at para. 137.

64 Ibid., at para. 140.

65 Judge Buergenthal's Dissent, supra n. 18, at 3, para. 7.

66 Ibid., at 1.

67 Article 53.1 of the Statute of the Court. Judge Owada discussed the lack of elaborate material from the Israeli side available in the present case, and referred to cases recalling the applicable legal principles where one party is not appearing, among others, the maintenance of fairness in the administration of justice and the equality of the parties to the dispute. Judge Owada's Separate Opinion, supra n. 44, at 7, para. 20. In Judge Higgins view “…although there has indeed been much information provided to the Court, that provided directly by Israel has only been very partial”. Judge Higgins' Separate Opinion, supra n. 50, at 8, para. 40.

68 Nuclear Tests, 1974 I.C.J. 263.

69 Judge Buergenthal's Dissent, supra n. 18, at 4, para. 10.

70 Legal Consequences of the Construction of the Wall, supra n. 28, para. 139.

71 Article 51 of the Charter of the United Nations available at http://www.un.org/aboutun/charter/.

72 H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) P.D. 807. See this issue of the Israel Law Review for an English translation of this decision: “H.C.J. 2056/04 Beit Sourik Village v. The Government of Israel 58(5) P.D. 807” (2005) 38 (1-2) Is.L.R. 83.

73 See Franck, Thomas M., “Terrorism and the Right of Self-Defense” (2001) 95 Am. J. Int'l L. 839–840 CrossRefGoogle Scholar.

74 Bowett, D.W., Self-Defence in International Law (Manchester, Manchester University Press, 1958) 87 Google Scholar.

75 Brownlie, Ian, Principles of Public International Law (Oxford, Clarendon Press, 5th ed., 1998) 521–522 Google Scholar; Shaw, Malcolm N., International Law (Cambridge, Cambridge University Press, 4th ed., 1997) 791–792 Google Scholar.

76 Secretary of General Report, supra n. 1, at para. 83.

77 Ibid., at para. 84.

78 Legal Consequences of the Construction of a Wall, supra n. 28, at para. 162.

79 Ibid., at para. 163 (3) B.

80 Ibid., at para. 121.

81 Security Council Resolution 242 and 338 call for the “withdrawal from territories and not from the territories or from all the territories. The resolutions do not define the extent of the withdrawal and the negotiation history of resolution 242 shows that the omission of “the” or “all” was one of the most hotly debated and fundamental features of the resolution. See Bailey, Sydney Dawson, The Making of Resolution 242 (MA., Kluwer Academic Pub., 1985) 143 Google Scholar; Lapidoth, Ruth, “La Résolution du Conseil de Sécurité en date du 29 novembre 1967 au sujet du Moyen Orient” (1970) 74 R.G.D.I.P. 289 Google Scholar; Rostow, Eugene V., “The Truth About 242”, The Jerusalem Post, 5 November 1990 Google Scholar.

82 Legal Consequences of the Construction of a Wall, supra n. 28, at para. 54.

83 Judge Higgins' Separate Opinion, supra n. 50, at 5, para. 16.

84 Ibid., at para. 17.

85 Ibid., at para 18.

86 The effectiveness of the barrier cannot be refuted. The decrease of 75% of fatal terrorist attacks and of 80% of the number wounded persons since the construction of the barrier, speaks for itself. The percentage is based on the yearly average number of killed and wounded persons since October 2002 to September 2003 as a result of terrorist attacks launched from the area of Salem Elkana (where the construction of the barrier was completed), as compared to the period a October 2003 to September 2004 in the same area, see “Un rapport de Tsahal prouve l'efficacité anti-terroriste de la barrière de sécurité” in Euro Jmagazine, September 2004. For the chronology, number of victims and the responsibility under international humanitarian law for the terrorist attacks, see Calvo-Goller, Karin and Calvo, Michel A., Le dossier Arafat (Paris, Albin Michel, 2004) 191-203, 243–252 Google Scholar.

87 Written Statement of the Government of Israel, supra n. 7, at 5.

88 Legal Consequences of the Construction of a Wall, supra n. 28, at para. 121.

89 Corfu Channel (Merits), 1949 I.C.J. 4, Military and Paramilitary Activities, 1986 I.C.J. 215.

90 Legal Consequences of the Construction of a Wall, supra n. 28, at para. 141.