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INTERNATIONAL COURT OF JUSTICE |
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YEAR 2004 9 July 2004 |
2004 9
July General
List No.
131 |
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LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL 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 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,
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
Ms Monique Chemillier‑Gendreau, Professor of Public Law,
University of Paris VII‑Denis Diderot, as Counsel. * *
*
13. When seised of a request for an advisory opinion, the Court must first
consider whether it has jurisdiction to give the opinion requested and
whether, should the answer be in the affirmative, there is any reason why it
should decline to exercise any such jurisdiction (see Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996 (I), p. 232, para. 10). *
*
14. The Court will thus first address the question whether it possesses
jurisdiction to give the advisory opinion requested by the General Assembly
on 8 December 2003. The competence of the Court in this
regard is based on Article 65, paragraph 1, of its Statute, according
to which the Court “may give an advisory opinion on any legal question at the
request of whatever body may be authorized by or in accordance with the
Charter of the United Nations to make such a request”. The Court has
already had occasion to indicate that:
“It is . . . a precondition of the Court’s competence that the
advisory opinion be requested by an organ duly authorized to seek it under
the Charter, that it be requested on a legal question, and that, except in
the case of the General Assembly or the Security Council, that question
should be one arising within the scope of the activities of the requesting
organ.” (Application for Review of Judgement No. 273 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982,
pp. 333‑334, para. 21.)
15. It is for the Court to satisfy itself that the request for an advisory
opinion comes from an organ or agency having competence to make it. In
the present instance, the Court notes that the General Assembly, which seeks
the advisory opinion, is authorized to do so by Article 96,
paragraph 1, of the Charter, which provides: “The General Assembly
or the Security Council may request the International Court of Justice to
give an advisory opinion on any legal question.”
16. Although the above‑mentioned provision states that the General
Assembly may seek an advisory opinion “on any legal question”, the Court has
sometimes in the past given certain indications as to the relationship
between the question the subject of a request for an advisory opinion and the
activities of the General Assembly (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 70; Legality
of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I),
pp. 232 and 233, paras. 11 and 12).
17. The Court will so proceed in the present case. The Court would
observe that Article 10 of the Charter has conferred upon the General
Assembly a competence relating to “any questions or any matters” within the
scope of the Charter, and that Article 11, paragraph 2, has
specifically provided it with competence on “questions relating to the
maintenance of international peace and security brought before it by any
Member of the United Nations . . .” and to make
recommendations under certain conditions fixed by those Articles. As
will be explained below, the question of the construction of the wall in the
Occupied Palestinian Territory was brought before the General
Assembly by a number of Member States in the context of the Tenth Emergency
Special Session of the Assembly, convened to deal with what the Assembly, in
its resolution ES‑10/2 of 25 April 1997, considered to
constitute a threat to international peace and security. *
18. Before further examining the problems of jurisdiction that have been
raised in the present proceedings, the Court considers it necessary to
describe the events that led to the adoption of resolution ES‑10/14,
by which the General Assembly requested an advisory opinion on the legal
consequences of the construction of the wall in the Occupied Palestinian
Territory.
19. The Tenth Emergency Special Session of the General Assembly, at which
that resolution was adopted, was first convened following the rejection by
the Security Council, on 7 March and 21 March 1997, as a
result of negative votes by a permanent member, of two draft resolutions
concerning certain Israeli settlements in the Occupied Palestinian Territory
(see, respectively, S/1997/199 and S/PV.3747, and S/1997/241 and S/PV.3756).
By a letter of 31 March 1997, the Chairman of the Arab Group then
requested “that an emergency special session of the General Assembly be
convened pursuant to resolution 377 A (V) entitled ‘Uniting
for Peace’” with a view to discussing “Illegal Israeli actions in occupied
East Jerusalem and the rest of the Occupied Palestinian Territory” (letter
dated 31 March 1997 from the Permanent Representative of Qatar to
the United Nations addressed to the Secretary‑General, A/ES‑10/1,
22 April 1997, Annex). The majority of Members of the United
Nations having concurred in this request, the first meeting of the Tenth
Emergency Special Session of the General Assembly took place on
24 April 1997 (see A/ES‑10/1, 22 April 1997).
Resolution ES‑10/2 was adopted the following day; the
General Assembly thereby expressed its conviction that: “the
repeated violation by Israel, the occupying Power, of international law and
its failure to comply with relevant Security Council and General Assembly
resolutions and the agreements reached between the parties undermine the
Middle East peace process and constitute a threat to international peace and
security”, and condemned the “illegal Israeli actions” in occupied East Jerusalem
and the rest of the Occupied Palestinian Territory, in particular the
construction of settlements in that territory. The Tenth Emergency
Special Session was then adjourned temporarily and has since been reconvened
11 times (on 15 July 1997, 13 November 1997,
17 March 1998, 5 February 1999,
18 October 2000, 20 December 2001, 7 May 2002,
5 August 2002, 19 September 2003,
20 October 2003 and 8 December 2003).
20. By a letter dated 9 October 2003, the
Chairman of the Arab Group, on behalf of the States Members of the League of
Arab States, requested an immediate meeting of the Security Council to
consider the “grave and ongoing Israeli violations of international law,
including international humanitarian law, and to take the necessary measures
in this regard” (letter of 9 October 2003 from the Permanent
Representative of the Syrian Arab Republic to the United Nations to the
President of the Security Council, S/2003/973,
9 October 2003). This letter was accompanied by a draft
resolution for consideration by the Council, which condemned as illegal the
construction by Israel of a wall in the Occupied Palestinian Territory
departing from the Armistice Line of 1949. The Security Council held
its 4841st and 4842nd meetings on 14 October 2003 to consider the
item entitled “The situation in the Middle East, including the Palestine
question”. It then had before it another draft resolution proposed on
the same day by Guinea, Malaysia, Pakistan and the Syrian Arab Republic,
which also condemned the construction of the wall. This latter draft
resolution was put to a vote after an open debate and was not adopted owing
to the negative vote of a permanent member of the Council (S/PV.4841 and
S/PV.4842). On
15 October 2003, the Chairman of the Arab Group, on behalf of the
States Members of the League of Arab States, requested the resumption of the
Tenth Emergency Special Session of the General Assembly to consider the item
of “Illegal Israeli actions in Occupied East Jerusalem and the rest of the
Occupied Palestinian Territory” (A/ES‑10/242); this request was
supported by the Non-Aligned Movement (A/ES‑10/243) and the
Organization of the Islamic Conference Group at the United Nations (A/ES‑10/244).
The Tenth Emergency Special Session resumed its work on
20 October 2003.
21. On 27 October 2003, the General Assembly adopted resolution ES‑10/13,
by which it demanded that “Israel stop and reverse the construction of the
wall in the Occupied Palestinian Territory, including in and around East
Jerusalem, which is in departure of the Armistice Line of 1949 and is in
contradiction to relevant provisions of international law”
(para. 1). In paragraph 3, the Assembly requested the
Secretary‑General “to report on compliance with
the . . . resolution periodically, with the first report on
compliance with paragraph 1 [of that resolution] to be submitted within one
month . . .”. The Tenth Emergency Special Session was
temporarily adjourned and, on 24 November 2003, the report of the
Secretary‑General prepared pursuant to General Assembly
resolution ES-10/13 (hereinafter the “report of the Secretary‑General”)
was issued (A/ES‑10/248).
22. Meanwhile, on 19 November 2003, the Security Council adopted
resolution 1515 (2003), by which it “Endorse[d] the Quartet
Performance‑based Roadmap to a Permanent Two‑State Solution to
the Israeli‑Palestinian Conflict”. The Quartet consists of
representatives of the United States of America, the European Union, the
Russian Federation and the United Nations. That resolution
“Call[ed] on the parties to fulfil their obligations under the Roadmap
in cooperation with the Quartet and to achieve the vision of two States
living side by side in peace and security.” Neither the “Roadmap” nor resolution 1515 (2003) contained
any specific provision concerning the construction of the wall, which was not
discussed by the Security Council in this context.
23. Nineteen days later, on 8 December 2003, the Tenth Emergency
Special Session of the General Assembly again resumed its work, following a
new request by the Chairman of the Arab Group, on behalf of the States
Members of the League of Arab States, and pursuant to resolution ES‑10/13
(letter dated 1 December 2003 to the President of the General
Assembly from the Chargé d’affaires a.i. of the Permanent Mission of Kuwait
to the United Nations, A/ES‑10/249, 2 December 2003).
It was during the meeting convened on that day that resolution ES‑10/14
requesting the present Advisory Opinion was adopted. *
24. Having thus recalled the sequence of events that led to the adoption of
resolution ES‑10/14, the Court will now turn to the questions of
jurisdiction that have been raised in the present proceedings. First,
Israel has alleged that, given the active engagement of the Security Council
with the situation in the Middle East, including the Palestinian question,
the General Assembly acted ultra vires under the Charter when it
requested an advisory opinion on the legal consequences of the construction
of the wall in the Occupied Palestinian Territory. 25. The Court has already indicated that the subject of the present
request for an advisory opinion falls within the competence of the General
Assembly under the Charter (see paragraphs 15‑17 above).
However, Article 12, paragraph 1, of the Charter provides that:
“While the Security Council is exercising in respect of any dispute or
situation the functions assigned to it in the present Charter, the General
Assembly shall not make any recommendation with regard to that dispute or
situation unless the Security Council so requests.” A request for an advisory opinion is not in itself a “recommendation”
by the General Assembly “with regard to [a] dispute or situation”. It
has however been argued in this case that the adoption by the General
Assembly of resolution ES-10/14 was ultra vires as not in
accordance with Article 12. The Court thus considers that it is
appropriate for it to examine the significance of that Article, having regard
to the relevant texts and the practice of the United Nations.
26. Under Article 24 of the Charter the Security Council has “primary
responsibility for the maintenance of international peace and
security”. In that regard it can impose on States “an explicit
obligation of compliance if for example it issues an order or command . . .
under Chapter VII” and can, to that end, “require enforcement by
coercive action” (Certain Expenses of the
United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion of 20 July 1962, I.C.J. Reports 1962,
p. 163). However, the Court would emphasize that Article 24
refers to a primary, but not necessarily exclusive, competence. The
General Assembly does have the power, inter alia, under
Article 14 of the Charter, to “recommend measures for the peaceful
adjustment” of various situations (Certain Expenses of the United Nations,
ibid., p. 163). “[T]he only limitation which Article 14
imposes on the General Assembly is the restriction found in Article 12,
namely, that the Assembly should not recommend measures while the Security
Council is dealing with the same matter unless the Council requests it to do
so.” (Ibid.).
27. As regards the practice of the United Nations, both the General Assembly
and the Security Council initially interpreted and applied Article 12 to
the effect that the Assembly could not make a recommendation on a question
concerning the maintenance of international peace and security while the
matter remained on the Council’s agenda. Thus the Assembly during its
fourth session refused to recommend certain measures on the question of
Indonesia, on the ground, inter alia, that the Council remained seised
of the matter (Official Records of the General Assembly, Fourth Session,
Ad Hoc Political Committee, Summary Records of Meetings, 27 September‑7 December 1949,
56th Meeting, 3 December 1949, p. 339,
para. 118). As for the Council, on a number of occasions it
deleted items from its agenda in order to enable the Assembly to deliberate
on them (for example, in respect of the Spanish question (Official Records
of the Security Council, First Year: Second Series, No. 21,
79th Meeting, 4 November 1946, p. 498), in connection
with incidents on the Greek border (Official Records of the Security
Council, Second Year, No. 89, 202nd Meeting,
15 September 1947, pp. 2404‑2405) and in regard to the
Island of Taiwan (Formosa) (Official Records of the Security Council,
Fifth Year, No. 48, 506th Meeting, 29 September 1950,
p. 5)). In the case of the Republic of Korea, the Council decided
on 31 January 1951 to remove the relevant item from the list of
matters of which it was seised in order to enable the Assembly to deliberate
on the matter (Official Records of the Security Council, Sixth Year,
S/PV.531, 531st Meeting, 31 January 1951, pp. 11‑12,
para. 57). However, this interpretation
of Article 12 has evolved subsequently. Thus the General Assembly
deemed itself entitled in 1961 to adopt recommendations in the matter of the
Congo (resolutions 1955 (XV) and 1600 (XVI)) and in 1963 in
respect of the Portuguese colonies (resolution 1913 (XVIII)) while
those cases still appeared on the Council’s agenda, without the Council
having adopted any recent resolution concerning them. In response to a
question posed by Peru during the Twenty‑third session of the General
Assembly, the Legal Counsel of the United Nations confirmed that the Assembly
interpreted the words “is exercising the functions” in Article 12 of the
Charter as meaning “is exercising the functions at this moment” (Twenty‑third
General Assembly, Third Committee, 1637th meeting, A/C.3/SR.1637,
para. 9). Indeed, the Court notes that there has been an
increasing tendency over time for the General Assembly and the Security
Council to deal in parallel with the same matter concerning the maintenance
of international peace and security (see, for example, the matters involving
Cyprus, South Africa, Angola, Southern Rhodesia and more recently Bosnia and
Herzegovina and Somalia). It is often the case that, while the Security
Council has tended to focus on the aspects of such matters related to
international peace and security, the General Assembly has taken a broader
view, considering also their humanitarian, social and economic aspects.
28. The Court considers that the accepted practice
of the General Assembly, as it has evolved, is consistent with
Article 12, paragraph 1, of the Charter. The Court is
accordingly of the view that the General Assembly, in adopting
resolution ES‑10/14, seeking an advisory opinion from the Court,
did not contravene the provisions of Article 12, paragraph 1, of the
Charter. The Court concludes that by submitting that request the
General Assembly did not exceed its competence.
29. It has however been contended before the Court that the present request
for an advisory opinion did not fulfil the essential conditions set by
resolution 377 A (V), under which the Tenth Emergency Special
Session was convened and has continued to act. In this regard, it has
been said, first, that “The Security Council was never seised of a draft
resolution proposing that the Council itself should request an advisory
opinion from the Court on the matters now in contention”, and, that specific
issue having thus never been brought before the Council, the General Assembly
could not rely on any inaction by the Council to make such a request.
Secondly, it has been claimed that, in adopting
resolution 1515 (2003), which endorsed the “Roadmap”, before the
adoption by the General Assembly of resolution ES‑10/14, the
Security Council continued to exercise its responsibility for the maintenance
of international peace and security and that, as a result, the General
Assembly was not entitled to act in its place. The validity of the
procedure followed by the Tenth Emergency Special Session, especially the Session’s
“rolling character” and the fact that its meeting was convened to deliberate
on the request for the advisory opinion at the same time as the General
Assembly was meeting in regular session, has also been questioned.
30. The Court would recall that resolution 377 A (V) states
that: “if
the Security Council, because of lack of unanimity of the permanent members,
fails to exercise its primary responsibility for the maintenance of
international peace and security in any case where there appears to be a
threat to the peace, breach of the peace, or act of aggression, the General
Assembly shall consider the matter immediately with a view to making
appropriate recommendations to Members for collective
measures . . .” The procedure provided for by that resolution is premised on two
conditions, namely that the Council has failed to exercise its primary
responsibility for the maintenance of international peace and security as a
result of a negative vote of one or more permanent members, and that the situation
is one in which there appears to be a threat to the peace, breach of the
peace, or act of aggression. The Court must accordingly ascertain
whether these conditions were fulfilled as regards the convening of the Tenth
Emergency Special Session of the General Assembly, in particular at the time
when the Assembly decided to request an advisory opinion from the Court.
31. In the light of the sequence of events described in paragraphs 18 to
23 above, the Court observes that, at the time when the Tenth Emergency
Special Session was convened in 1997, the Council had been unable to take a
decision on the case of certain Israeli settlements in the Occupied
Palestinian Territory, due to negative votes of a permanent member; and that,
as indicated in resolution ES‑10/2 (see paragraph 19 above),
there existed a threat to international peace and security. The Court
further notes that, on 20 October 2003, the Tenth Emergency Special
Session of the General Assembly was reconvened on the same basis as in 1997
(see the statements by the representatives of Palestine and Israel, A/ES‑10/PV.21,
pp. 2 and 5), after the rejection by the Security Council, on
14 October 2003, again as a result of the negative vote of a
permanent member, of a draft resolution concerning the construction by Israel
of the wall in the Occupied Palestinian Territory. The Court considers
that the Security Council again failed to act as contemplated in resolution
377 A (V). It does not appear to the Court that the situation
in this regard changed between 20 October 2003 and
8 December 2003, since the Council neither discussed the
construction of the wall nor adopted any resolution in that connection.
Thus, the Court is of the view that, up to 8 December 2003, the
Council had not reconsidered the negative vote of
14 October 2003. It follows that, during that period, the
Tenth Emergency Special Session was duly reconvened and could properly be
seised, under resolution 377 A (V), of the matter now before
the Court.
32. The Court would also emphasize that, in the course of this Emergency
Special Session, the General Assembly could adopt any resolution falling
within the subject-matter for which the Session had been convened, and
otherwise within its powers, including a resolution seeking the Court’s
opinion. It is irrelevant in that regard that no proposal had been made
to the Security Council to request such an opinion.
33. Turning now to alleged further procedural irregularities of the Tenth
Emergency Special Session, the Court does not consider that the “rolling”
character of that Session, namely the fact of its having been convened in
April 1997 and reconvened 11 times since then, has any relevance
with regard to the validity of the request by the General Assembly. The
Court observes in that regard that the Seventh Emergency Special Session of
the General Assembly, having been convened on 22 July 1980, was
subsequently reconvened four times (on 20 April 1982,
25 June 1982, 16 August 1982 and
24 September 1982), and that the validity of resolutions or
decisions of the Assembly adopted under such circumstances was never
disputed. Nor has the validity of any previous resolutions adopted
during the Tenth Emergency Special Session been challenged.
34. The Court also notes the contention by Israel that it was improper to
reconvene the Tenth Emergency Special Session at a time when the regular
Session of the General Assembly was in progress. The Court considers
that, while it may not have been originally contemplated that it would be
appropriate for the General Assembly to hold simultaneous emergency and
regular sessions, no rule of the Organization has been identified which would
be thereby violated, so as to render invalid the resolution adopting the present
request for an advisory opinion.
35. Finally, the Tenth Emergency Special Session
appears to have been convened in accordance with Rule 9 (b)
of the Rules of Procedure of the General Assembly, and the relevant meetings
have been convened in pursuance of the applicable rules. As the Court
stated in its Advisory Opinion of 21 June 1971 concerning the Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
a “resolution of a properly constituted organ of the United Nations which is
passed in accordance with that organ’s rules of procedure, and is declared by
its President to have been so passed, must be presumed to have been validly
adopted” (I.C.J. Reports 1971, p. 22, para. 20). In
view of the foregoing, the Court cannot see any reason why that presumption
is to be rebutted in the present case. *
36. The Court now turns to a further issue related to jurisdiction in the
present proceedings, namely the contention that the request for an advisory
opinion by the General Assembly is not on a “legal question” within the
meaning of Article 96, paragraph 1, of the Charter and
Article 65, paragraph 1, of the Statute of the Court. It has
been contended in this regard that, for a question to constitute a “legal
question” for the purposes of these two provisions, it must be reasonably
specific, since otherwise it would not be amenable to a response by the
Court. With regard to the request made in the present advisory
proceedings, it has been argued that it is not possible to determine with
reasonable certainty the legal meaning of the question asked of the Court for
two reasons. First, it has
been argued that the question regarding the “legal consequences” of the
construction of the wall only allows for two possible interpretations, each
of which would lead to a course of action that is precluded for the
Court. The question asked could first be interpreted as a request for
the Court to find that the construction of the wall is illegal, and then to
give its opinion on the legal consequences of that illegality. In this
case, it has been contended, the Court should decline to respond to the
question asked for a variety of reasons, some of which pertain to
jurisdiction and others rather to the issue of propriety. As regards
jurisdiction, it is said that, if the General Assembly had wished to obtain
the view of the Court on the highly complex and sensitive question of the
legality of the construction of the wall, it should have expressly sought an
opinion to that effect (cf. Exchange of Greek and Turkish Populations,
Advisory Opinion, 1925, P.C.I.J., Series B, No. 10,
p. 17). A second possible interpretation of the request, it is
said, is that the Court should assume that the construction of the wall is
illegal, and then give its opinion on the legal consequences of that assumed
illegality. It has been contended that the Court should also decline to
respond to the question on this hypothesis, since the request would then be
based on a questionable assumption and since, in any event, it would be
impossible to rule on the legal consequences of illegality without specifying
the nature of that illegality. Secondly, it
has been contended that the question asked of the Court is not of a “legal”
character because of its imprecision and abstract nature. In
particular, it has been argued in this regard that the question fails to
specify whether the Court is being asked to address legal consequences for “the General Assembly or some other organ of the
United Nations”, “Member States of the United Nations”, “Israel”, “Palestine”
or “some combination of the above, or some different entity”.
37. As regards the alleged lack of clarity of the terms of the General
Assembly’s request and its effect on the “legal nature” of the question
referred to the Court, the Court observes that this question is directed to
the legal consequences arising from a given factual situation considering the
rules and principles of international law, including the Geneva Convention
relative to the Protection of Civilian Persons in Time of War of
12 August 1949 (hereinafter the “Fourth Geneva Convention”) and
relevant Security Council and General Assembly resolutions. The
question submitted by the General Assembly has thus, to use the Court’s
phrase in its Advisory Opinion on Western Sahara, “been framed in
terms of law and raise[s] problems of international law”; it is by its
very nature susceptible of a reply based on law; indeed it is scarcely
susceptible of a reply otherwise than on the basis of law. In the view
of the Court, it is indeed a question of a legal character (see Western
Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18,
para. 15).
38. The Court would point out that lack of clarity in the drafting of a
question does not deprive the Court of jurisdiction. Rather, such
uncertainty will require clarification in interpretation, and such necessary
clarifications of interpretation have frequently been given by the Court. In the past,
both the Permanent Court and the present Court have observed in some cases
that the wording of a request for an advisory opinion did not accurately
state the question on which the Court’s opinion was being sought (Interpretation
of the Greco‑Turkish Agreement of 1 December 1926 (Final
Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B,
No. 16 (I), pp. 14‑16), or did not correspond to the
“true legal question” under consideration (Interpretation of the Agreement
of 25 March 1951 between the WHO and Egypt, Advisory Opinion,
I.C.J. Reports 1980, pp. 87‑89, paras. 34‑36).
The Court noted in one case that “the question put to the Court is, on the
face of it, at once infelicitously expressed and vague” (Application for
Review of Judgement No. 273 of the United Nations Administrative
Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 348,
para. 46). Consequently,
the Court has often been required to broaden, interpret and even reformulate
the questions put (see the three Opinions cited above; see also Jaworzina,
Advisory Opinion, 1923, P.C.I.J., Series B, No. 8; Admissibility
of Hearings of Petitioners by the Committee on South West Africa, Advisory
Opinion, I.C.J. Reports 1956, p. 25; Certain Expenses of
the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, I.C.J. Reports 1962, pp. 157‑162). In the present
instance, the Court will only have to do what it has often done in the past,
namely “identify the existing principles and rules, interpret them and apply
them . . ., thus offering a reply to the question posed based
on law” (Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports
1996 (I), p. 234, para. 13).
39. In the present instance, if the General Assembly
requests the Court to state the “legal consequences” arising from the
construction of the wall, the use of these terms necessarily encompasses an
assessment of whether that construction is or is not in breach of certain
rules and principles of international law. Thus, the Court is first
called upon to determine whether such rules and principles have been and are
still being breached by the construction of the wall along the planned route.
40. The Court does not consider that what is contended to be the abstract
nature of the question posed to it raises an issue of jurisdiction.
Even when the matter was raised as an issue of propriety rather than one of
jurisdiction, in the case concerning the Legality of the Threat or Use of
Nuclear Weapons, the Court took the position that to contend that it
should not deal with a question couched in abstract terms is “a mere
affirmation devoid of any justification” and that “the Court may give an
advisory opinion on any legal question, abstract or otherwise” (I.C.J.
Reports 1996 (I), p. 236, para. 15, referring to Conditions
of Admission of a State to Membership in the United Nations (Article 4 of the
Charter), Advisory Opinion, 1948, I.C.J. Reports 1947‑1948,
p. 61; Effect of Awards of Compensation Made by the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954,
p. 51; and Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, p. 27, para. 40). In any event, the Court considers
that the question posed to it in relation to the legal consequences of the
construction of the wall is not an abstract one, and moreover that it would
be for the Court to determine for whom any such consequences arise.
41. Furthermore, the Court cannot accept the view, which has also been
advanced in the present proceedings, that it has no jurisdiction because of
the “political” character of the question posed. As is clear from its
long‑standing jurisprudence on this point, the Court considers that the
fact that a legal question also has political aspects, “as,
in the nature of things, is the case with so many questions which arise in
international life, does not suffice to deprive it of its character as a
‘legal question’ and to ‘deprive the Court of a competence expressly
conferred on it by its Statute’(Application for Review of Judgement No.
158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J,
Reports 1973, p. 172, para. 14). Whatever its political
aspects, the Court cannot refuse to admit the legal character of a question
which invites it to discharge an essentially judicial task, namely, an assessment
of the legality of the possible conduct of States with regard to the
obligations imposed upon them by international law (cf. Conditions of
Admission of a State to Membership in the United Nations (Article 4 of the
Charter), Advisory Opinion, 1948, I.C.J. Reports 1947‑1948,
pp. 61‑62; Competence of the General Assembly for the
Admission of a State to the United Nations, Advisory Opinion,
I.C.J. Reports 1950, pp. 6‑7; Certain Expenses
of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, I.C.J. Reports 1962, p. 155).” (Legality of the
Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), p. 234,
para. 13.) In its Opinion concerning the Interpretation of the Agreement of
25 March 1951 between the WHO and Egypt, the Court indeed emphasized
that, “in situations in which political considerations are prominent it may
be particularly necessary for an international organization to obtain an
advisory opinion from the Court as to the legal principles applicable with
respect to the matter under debate . . .” (I.C.J. Reports
1980, p. 87, para. 33). Moreover, the Court has affirmed
in its Opinion on the Legality of the Threat or Use of Nuclear Weapons
that “the political nature of the motives which may be said to have inspired
the request and the political implications that the opinion given might have
are of no relevance in the establishment of its jurisdiction to give such an
opinion” (I.C.J. Reports 1996 (I), p. 234,
para. 13). The Court is of the view that there is no element in
the present proceedings which could lead it to conclude otherwise. *
42. The Court accordingly has jurisdiction to give the advisory opinion
requested by resolution ES‑10/14 of the General Assembly. *
*
43. It has been contended in the present proceedings, however, that the Court
should decline to exercise its jurisdiction because of the presence of
specific aspects of the General Assembly’s request that would render the
exercise of the Court’s jurisdiction improper and inconsistent with the
Court’s judicial function.
44. The Court has recalled many times in the past that Article 65,
paragraph 1, of its Statute, which provides that “The Court may
give an advisory opinion . . .” (emphasis added), should be
interpreted to mean that the Court has a discretionary power to decline to
give an advisory opinion even if the conditions of jurisdiction are met (Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996 (I), p. 234, para. 14). The Court
however is mindful of the fact that its answer to a request for an advisory
opinion “represents its participation in the activities of the Organization,
and, in principle, should not be refused” (Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
I.C.J. Reports 1950, p. 71; see also, for example, Difference
Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission of Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I),
pp. 78‑79, para. 29.) Given its responsibilities as the
“principal judicial organ of the United Nations” (Article 92 of the
Charter), the Court should in principle not decline to give an advisory
opinion. In accordance with its consistent jurisprudence, only “compelling
reasons” should lead the Court to refuse its opinion (Certain
Expenses of the United Nations (Article 17, paragraph 2, of the
Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155; see
also, for example, Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission of Human Rights, Advisory Opinion,
I.C.J. Reports 1999 (I), pp. 78‑79, para. 29.) The present
Court has never, in the exercise of this discretionary power, declined to
respond to a request for an advisory opinion. Its decision not to give
the advisory opinion on the Legality of the Use by a State of Nuclear
Weapons in Armed Conflict requested by the World Health Organization was
based on the Court’s lack of jurisdiction, and not on considerations of
judicial propriety (see I.C.J. Reports 1996 (I), p. 235,
para. 14). Only on one occasion did the Court’s predecessor, the
Permanent Court of International Justice, take the view that it should not
reply to a question put to it (Status of Eastern Carelia, Advisory
Opinion, 1923, P.C.I.J., Series B, No. 5), but this was due to “the
very particular circumstances of the case, among which were that the question
directly concerned an already existing dispute, one of the States parties to
which was neither a party to the Statute of the Permanent Court nor a Member
of the League of Nations, objected to the proceedings, and refused to take
part in any way” (Legality of the Threat or Use of Nuclear Weapons, I.C.J.
Reports 1996 (I), pp. 235‑236, para. 14).
45. These considerations do not release the Court from the duty to satisfy
itself, each time it is seised of a request for an opinion, as to the
propriety of the exercise of its judicial function, by reference to the criterion
of “compelling reasons” as cited above. The Court will accordingly
examine in detail and in the light of its jurisprudence each of the arguments
presented to it in this regard. *
46. The first such argument is to the effect that the Court should not
exercise its jurisdiction in the present case because the request concerns a
contentious matter between Israel and Palestine, in respect of which Israel
has not consented to the exercise of that jurisdiction. According to
this view, the subject‑matter of the question posed by the General
Assembly “is an integral part of the wider Israeli‑Palestinian dispute
concerning questions of terrorism, security, borders, settlements, Jerusalem
and other related matters”. Israel has emphasized that it has never
consented to the settlement of this wider dispute by the Court or by any
other means of compulsory adjudication; on the contrary, it contends that the
parties repeatedly agreed that these issues are to be settled by negotiation,
with the possibility of an agreement that recourse could be had to
arbitration. It is accordingly contended that the Court should decline
to give the present Opinion, on the basis inter alia of the precedent
of the decision of the Permanent Court of International Justice on the Status
of Eastern Carelia.
47. The Court observes that the lack of consent to the Court’s contentious
jurisdiction by interested States has no bearing on the Court’s jurisdiction
to give an advisory opinion. In an Advisory Opinion of 1950, the Court
explained that:
“The consent of States, parties to a dispute, is the
basis of the Court’s jurisdiction in contentious cases. The situation
is different in regard to advisory proceedings even where the Request for an
Opinion relates to a legal question actually pending between States.
The Court’s reply is only of an advisory character: as such, it has no
binding force. It follows that no State, whether a Member of the United
Nations or not, can prevent the giving of an Advisory Opinion which the United
Nations considers to be desirable in order to obtain enlightenment as to the
course of action it should take. The Court’s Opinion is given not to
the States, but to the organ which is entitled to request it; the reply
of the Court, itself an ‘organ of the United Nations’, represents its
participation in the activities of the Organization, and, in principle,
should not be refused.” (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports
1950, p. 71; see also Western Sahara, I.C.J. Reports 1975,
p. 24, para. 31.) It followed from this that, in those proceedings, the Court did not
refuse to respond to the request for an advisory opinion on the ground that,
in the particular circumstances, it lacked jurisdiction. The Court did
however examine the opposition of certain interested States to the request by
the General Assembly in the context of issues of judicial propriety.
Commenting on its 1950 decision, the Court explained in its Advisory Opinion
on Western Sahara that it had “Thus . . . recognized
that lack of consent might constitute a ground for declining to give the
opinion requested if, in the circumstances of a given case, considerations of
judicial propriety should oblige the Court to refuse an opinion.” The
Court continued:
“In certain circumstances . . . the lack of consent of an
interested State may render the giving of an advisory opinion incompatible
with the Court’s judicial character. An instance of this would be when
the circumstances disclose that to give a reply would have the effect of
circumventing the principle that a State is not obliged to allow its disputes
to be submitted to judicial settlement without its consent.” (Western
Sahara, I.C.J. Reports 1975, p. 25, paras. 32‑33.) In applying that principle to the request concerning Western Sahara,
the Court found that a legal controversy did indeed exist, but one which had
arisen during the proceedings of the General Assembly and in relation to
matters with which the Assembly was dealing. It had not arisen
independently in bilateral relations (ibid., p. 25, para. 34).
48. As regards the request for an advisory opinion now before it, the Court
acknowledges that Israel and Palestine have expressed radically divergent
views on the legal consequences of Israel’s construction of the wall, on
which the Court has been asked to pronounce. However, as the Court has
itself noted, “Differences of views . . . on legal issues have
existed in practically every advisory proceeding” (Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, p. 24, para. 34).
49. Furthermore, the Court does not consider that the subject‑matter of
the General Assembly’s request can be regarded as only a bilateral matter
between Israel and Palestine. Given the powers and responsibilities of
the United Nations in questions relating to international peace and security,
it is the Court’s view that the construction of the wall must be deemed to be
directly of concern to the United Nations. The responsibility of the
United Nations in this matter also has its origin in the Mandate and the
Partition Resolution concerning Palestine (see paragraphs 70 and
71 below). This responsibility has been described by the General
Assembly as “a permanent responsibility towards the question of Palestine
until the question is resolved in all its aspects in a satisfactory manner in
accordance with international legitimacy” (General Assembly
resolution 57/107 of 3 December 2002). Within the
institutional framework of the Organization, this responsibility has been
manifested by the adoption of many Security Council and General Assembly
resolutions, and by the creation of several subsidiary bodies specifically
established to assist in the realization of the inalienable rights of the
Palestinian people.
50. The object of the request before the Court is to obtain from the Court an
opinion which the General Assembly deems of assistance to it for the proper
exercise of its functions. The opinion is requested on a question which
is of particularly acute concern to the United Nations, and one which is
located in a much broader frame of reference than a bilateral dispute.
In the circumstances, the Court does not consider that to give an opinion
would have the effect of circumventing the principle of consent to judicial
settlement, and the Court accordingly cannot, in the exercise of its
discretion, decline to give an opinion on that ground. *
51. The Court now turns to another argument raised in the present proceedings
in support of the view that it should decline to exercise its
jurisdiction. Some participants have argued that an advisory opinion
from the Court on the legality of the wall and the legal consequences of its
construction could impede a political, negotiated solution to the Israeli‑Palestinian
conflict. More particularly, it has been contended that such an opinion
could undermine the scheme of the “Roadmap” (see paragraph 22 above),
which requires Israel and Palestine to comply with certain obligations in
various phases referred to therein. The requested opinion, it has been
alleged, could complicate the negotiations envisaged in the “Roadmap”, and
the Court should therefore exercise its discretion and decline to reply to
the question put. This is a
submission of a kind which the Court has already had to consider several
times in the past. For instance, in its Advisory opinion on the Legality
of the Threat or Use of Nuclear Weapons, the Court stated:
“It has . . . been submitted that a reply from the Court in
this case might adversely affect disarmament negotiations and would,
therefore, be contrary to the interest of the United Nations. The Court
is aware that, no matter what might be its conclusions in any opinion it
might give, they would have relevance for the continuing debate on the matter
in the General Assembly and would present an additional element in
the negotiations on the matter. Beyond that, the effect of the opinion
is a matter of appreciation. The Court has heard contrary positions
advanced and there are no evident criteria by which it can prefer one
assessment to another.” (I.C.J. Reports 1996 (I),
p. 237, para. 17; see also Western Sahara, I.C.J. Reports
1975, p. 37, para. 73.)
52. One participant in the present proceedings has indicated that the Court,
if it were to give a response to the request, should in any event do so
keeping in mind “two
key aspects of the peace process: the fundamental principle that
permanent status issues must be resolved through negotiations; and the
need during the interim period for the parties to fulfill their security
responsibilities so that the peace process can succeed”.
53. The Court is conscious that the “Roadmap”, which was endorsed by the
Security Council in resolution 1515 (2003) (see paragraph 22
above), constitutes a negotiating framework for the resolution of the Israeli‑Palestinian
conflict. It is not clear, however, what influence the Court’s opinion
might have on those negotiations: participants in the present
proceedings have expressed differing views in this regard. The Court
cannot regard this factor as a compelling reason to decline to exercise its
jurisdiction.
54. It was also put to the Court by certain participants that the question of
the construction of the wall was only one aspect of the Israeli‑Palestinian
conflict, which could not be properly addressed in the present
proceedings. The Court does not however consider this a reason for it
to decline to reply to the question asked. The Court is indeed aware
that the question of the wall is part of a greater whole, and it would take
this circumstance carefully into account in any opinion it might give.
At the same time, the question that the General Assembly has chosen to ask of
the Court is confined to the legal consequences of the construction of the
wall, and the Court would only examine other issues to the extent that they
might be necessary to its consideration of the question put to it. *
55. Several participants in the proceedings have raised the further argument
that the Court should decline to exercise its jurisdiction because it does
not have at its disposal the requisite facts and evidence to enable it to
reach its conclusions. In particular, Israel has contended, referring
to the Advisory Opinion on the Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, that the Court could not give an opinion
on issues which raise questions of fact that cannot be elucidated without
hearing all parties to the conflict. According to Israel, if the Court
decided to give the requested opinion, it would be forced to speculate about
essential facts and make assumptions about arguments of law. More
specifically, Israel has argued that the Court could not rule on the legal
consequences of the construction of the wall without enquiring, first, into the nature
and scope of the security threat to which the wall is intended to respond and
the effectiveness of that response, and, second, into the impact of the
construction for the Palestinians. This task, which would already be
difficult in a contentious case, would be further complicated in an advisory
proceeding, particularly since Israel alone possesses much of the necessary
information and has stated that it chooses not to address the merits.
Israel has concluded that the Court, confronted with factual issues impossible
to clarify in the present proceedings, should use its discretion and decline
to comply with the request for an advisory opinion.
56. The Court observes that the question whether the evidence available to it
is sufficient to give an advisory opinion must be decided in each particular
instance. In its Opinion concerning the Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania (I.C.J. Reports 1950,
p. 72) and again in its Opinion on the Western Sahara, the Court
made it clear that what is decisive in these circumstances is “whether the
Court has before it sufficient information and evidence to enable it to
arrive at a judicial conclusion upon any disputed questions of fact the
determination of which is necessary for it to give an opinion in conditions
compatible with its judicial character” (Western Sahara, I.C.J. Reports
1975, pp. 28‑29, para. 46). Thus, for instance, in
the proceedings concerning the Status of Eastern Carelia, the
Permanent Court of International Justice decided to decline to give an
Opinion inter alia because the question put “raised a question of fact
which could not be elucidated without hearing both parties” (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950,
p. 72; see Status of Eastern Carelia, P.C.I.J., Series B,
No. 5, p. 28). On the other hand, in the Western
Sahara Opinion, the Court observed that it had been provided with very
extensive documentary evidence of the relevant facts (I.C.J. Reports 1975,
p. 29, para. 47).
57. In the present instance, the Court has at its disposal the report of the
Secretary‑General, as well as a voluminous dossier submitted by him to
the Court, comprising not only detailed information on the route of the wall
but also on its humanitarian and socio‑economic impact on the
Palestinian population. The dossier includes several reports based on
on‑site visits by special rapporteurs and competent organs of the
United Nations. The Secretary-General has further submitted to the Court
a written statement updating his report, which supplemented the information
contained therein. Moreover, numerous other participants have submitted
to the Court written statements which contain information relevant to a
response to the question put by the General Assembly. The Court notes
in particular that Israel’s Written Statement, although limited to issues of
jurisdiction and judicial propriety, contained observations on other matters,
including Israel’s concerns in terms of security, and was accompanied by
corresponding annexes; many other documents issued by the Israeli
Government on those matters are in the public domain.
58. The Court finds that it has before it sufficient information and evidence
to enable it to give the advisory opinion requested by the General
Assembly. Moreover, the circumstance that others may evaluate and
interpret these facts in a subjective or political manner can be no argument for a court of
law to abdicate its judicial task. There is therefore in the present
case no lack of information such as to constitute a compelling reason for the
Court to decline to give the requested opinion. *
59. In their written statements, some participants have also put forward the
argument that the Court should decline to give the requested opinion on the
legal consequences of the construction of the wall because such opinion would
lack any useful purpose. They have argued that the advisory opinions of
the Court are to be seen as a means to enable an organ or agency in need of
legal clarification for its future action to obtain that clarification.
In the present instance, the argument continues, the General Assembly would
not need an opinion of the Court because it has already declared the
construction of the wall to be illegal and has already determined the legal
consequences by demanding that Israel stop and reverse its construction, and
further, because the General Assembly has never made it clear how it intended
to use the opinion.
60. As is clear from the Court’s jurisprudence, advisory opinions have the
purpose of furnishing to the requesting organs the elements of law necessary
for them in their action. In its Opinion concerning Reservations to
the Convention on the Prevention and Punishment of the Crime of Genocide,
the Court observed: “The object of this request for an Opinion is to
guide the United Nations in respect of its own action.” (I.C.J.
Reports 1951, p. 19.) Likewise, in its Opinion on the Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276
(1970), the Court noted: “The request is put forward by a United
Nations organ with reference to its own decisions and it seeks legal advice
from the Court on the consequences and implications of these
decisions.” (I.C.J. Reports 1971, p. 24,
para. 32.) The Court found on another occasion that the advisory
opinion it was to give would “furnish the General Assembly with elements of a
legal character relevant to its further treatment of the decolonization of
Western Sahara” (Western Sahara, I.C.J. Reports 1975, p. 37,
para. 72).
61. With regard to the argument that the General Assembly has not made it
clear what use it would make of an advisory opinion on the wall, the Court
would recall, as equally relevant in the present proceedings, what it stated
in its Opinion on the Legality of the Threat or Use of Nuclear Weapons:
“Certain States have observed that the General Assembly has not explained to
the Court for what precise purposes it seeks the advisory opinion.
Nevertheless, it is not for the Court itself to purport to decide whether or
not an advisory opinion is needed by the Assembly for the performance of its
functions. The General Assembly has the right to decide for itself on
the usefulness of an opinion in the light of its own needs.” (I.C.J.
Reports 1996 (I), p. 237, para. 16.)
62. It follows that the Court cannot decline to
answer the question posed based on the ground that its opinion would lack any
useful purpose. The Court cannot substitute its assessment of the
usefulness of the opinion requested for that of the organ that seeks such
opinion, namely the General Assembly. Furthermore, and in any event,
the Court considers that the General Assembly has not yet determined all the
possible consequences of its own resolution. The Court’s task would be
to determine in a comprehensive manner the legal consequences of the
construction of the wall, while the General Assembly - and the Security Council - may then draw conclusions from the Court’s findings. *
63. Lastly, the Court will turn to another argument advanced with regard to
the propriety of its giving an advisory opinion in the present
proceedings. Israel has contended that Palestine, given its
responsibility for acts of violence against Israel and its population which
the wall is aimed at addressing, cannot seek from the Court a remedy for a
situation resulting from its own wrongdoing. In this context, Israel
has invoked the maxim nullus commodum capere potest de sua injuria propria,
which it considers to be as relevant in advisory proceedings as it is in
contentious cases. Therefore, Israel concludes, good faith and the
principle of “clean hands” provide a compelling reason that should lead the
Court to refuse the General Assembly’s request.
64. The Court does not consider this argument to be pertinent. As
was emphasized earlier, it was the General Assembly which requested the
advisory opinion, and the opinion is to be given to the General Assembly, and
not to a specific State or entity. *
*
65. In the light of the foregoing, the Court concludes not only that it has
jurisdiction to give an opinion on the question put to it by the General
Assembly (see paragraph 42 above), but also that there is no compelling
reason for it to use its discretionary power not to give that opinion. * *
*
66. The Court will now address the question put to
it by the General Assembly in resolution ES‑10/14. The Court
recalls that the question is as follows:
“What are the legal consequences arising from the construction of the wall
being built by Israel, the occupying Power, in the Occupied Palestinian
Territory, including in and around East Jerusalem, as described in the report
of the Secretary‑General, considering the rules and principles of
international law, including the Fourth Geneva Convention of 1949, and
relevant Security Council and General Assembly resolutions?”
67. As explained in paragraph 82 below, the “wall” in question is a
complex construction, so that that term cannot be understood in a limited
physical sense. However, the other terms used, either by Israel
(“fence”) or by the Secretary‑General (“barrier”), are no more accurate
if understood in the physical sense. In this Opinion, the Court has
therefore chosen to use the terminology employed by the General Assembly. The Court notes
furthermore that the request of the General Assembly concerns the legal
consequences of the wall being built “in the Occupied Palestinian Territory,
including in and around East Jerusalem”. As also explained below (see
paragraphs 79‑84 below), some parts of the complex are being built, or
are planned to be built, on the territory of Israel itself; the Court
does not consider that it is called upon to examine the legal consequences
arising from the construction of those parts of the wall.
68. The question put by the General Assembly concerns the legal consequences
of the construction of the wall in the Occupied Palestinian Territory.
However, in order to indicate those consequences to the General Assembly the
Court must first determine whether or not the construction of that wall
breaches international law (see paragraph 39 above). It will
therefore make this determination before dealing with the consequences of the
construction.
69. To do so, the Court will first make a brief analysis of the status of the
territory concerned, and will then describe the works already constructed or
in course of construction in that territory. It will then indicate the
applicable law before seeking to establish whether that law has been
breached. *
*
70. Palestine was part of the Ottoman Empire. At the end of the First
World War, a class “A” Mandate for Palestine was entrusted to Great
Britain by the League of Nations, pursuant to paragraph 4 of
Article 22 of the Covenant, which provided that:
“Certain communities, formerly belonging to the
Turkish Empire have reached a stage of development where their existence as
independent nations can be provisionally recognized subject to the rendering
of administrative advice and assistance by a Mandatory until such time as
they are able to stand alone.” The Court
recalls that in its Advisory Opinion on the International Status of
South West Africa, speaking of mandates in general, it observed that
“The Mandate was created, in the interest of the inhabitants of the
territory, and of humanity in general, as an international institution with
an international object -
a sacred trust of civilization.” (I.C.J. Reports 1950,
p. 132.) The Court also held in this regard that “two principles
were considered to be of paramount importance: the principle of non‑annexation
and the principle that the well‑being and development
of . . . peoples [not yet able to govern themselves] form[ed]
‘a sacred trust of civilization’” (ibid., p. 131). The territorial
boundaries of the Mandate for Palestine were laid down by various
instruments, in particular on the eastern border by a British memorandum of
16 September 1922 and an Anglo‑Transjordanian Treaty of
20 February 1928.
71. In 1947 the United Kingdom announced its intention to complete evacuation
of the mandated territory by 1 August 1948, subsequently advancing
that date to 15 May 1948. In the meantime, the General
Assembly had on 29 November 1947 adopted
resolution 181 (II) on the future government of Palestine, which “Recommends
to the United Kingdom . . . and to all other Members of the
United Nations the adoption and implementation . . . of the
Plan of Partition” of the territory, as set forth in the resolution, between
two independent States, one Arab, the other Jewish, as well as the creation
of a special international régime for the City of Jerusalem. The Arab
population of Palestine and the Arab States rejected this plan, contending
that it was unbalanced; on 14 May 1948, Israel proclaimed its
independence on the strength of the General Assembly resolution; armed
conflict then broke out between Israel and a number of Arab States and the
Plan of Partition was not implemented.
72. By resolution 62 (1948) of 16 November 1948, the Security Council
decided that “an armistice shall be established in all sectors of Palestine”
and called upon the parties directly involved in the conflict to seek
agreement to this end. In conformity with this decision, general
armistice agreements were concluded in 1949 between Israel and the
neighbouring States through mediation by the United Nations. In
particular, one such agreement was signed in Rhodes on 3 April 1949
between Israel and Jordan. Articles V and VI of that Agreement
fixed the armistice demarcation line between Israeli and Arab forces (often
later called the “Green Line” owing to the colour used for it on maps;
hereinafter the “Green Line”). Article III, paragraph 2,
provided that “No element of the . . . military or para‑military
forces of either Party . . . shall advance beyond or pass over
for any purpose whatsoever the Armistice Demarcation Lines . . .”
It was agreed in Article VI, paragraph 8, that these provisions
would not be “interpreted as prejudicing, in any sense, an ultimate political
settlement between the Parties”. It was also stated that “the Armistice
Demarcation
Lines defined in articles V and VI of [the] Agreement [were] agreed upon
by the Parties without prejudice to future territorial settlements or
boundary lines or to claims of either Party relating thereto”. The
Demarcation Line was subject to such rectification as might be agreed upon by
the parties.
73. In the 1967 armed conflict, Israeli forces occupied all the territories
which had constituted Palestine under British Mandate (including those known
as the West Bank, lying to the east of the Green Line).
74. On 22 November 1967, the Security Council unanimously adopted
resolution 242 (1967), which emphasized the inadmissibility of
acquisition of territory by war and called for the “Withdrawal of Israel
armed forces from territories occupied in the recent conflict”, and
“Termination of all claims or states of belligerency”.
75. From 1967 onwards, Israel took a number of measures in these territories
aimed at changing the status of the City of Jerusalem. The Security
Council, after recalling on a number of occasions “the principle that
acquisition of territory by military conquest is inadmissible”, condemned
those measures and, by resolution 298 (1971) of
25 September 1971, confirmed in the clearest possible terms that: “all
legislative and administrative actions taken by Israel to change the status
of the City of Jerusalem, including expropriation of land and properties,
transfer of populations and legislation aimed at the incorporation of the
occupied section, are totally invalid and cannot change that status”. Later,
following the adoption by Israel on 30 July 1980 of the Basic Law
making Jerusalem the “complete and united” capital of Israel, the Security
Council, by resolution 478 (1980) of 20 August 1980, stated
that the enactment of that Law constituted a violation of international law
and that “all legislative and administrative measures and actions taken by
Israel, the occupying Power, which have altered or purport to alter the
character and status of the Holy City of Jerusalem . . . are
null and void”. It further decided “not to recognize the ‘basic law’
and such other actions by Israel that, as a result of this law, seek to alter
the character and status of Jerusalem”.
76. Subsequently, a peace treaty was signed on 26 October 1994
between Israel and Jordan. That treaty fixed the boundary between the
two States “with reference to the boundary definition under the Mandate as is
shown in Annex I (a) . . . without prejudice
to the status of any territories that came under Israeli military government
control in 1967” (Article 3, paragraphs 1 and 2).
Annex I provided the corresponding maps and added that, with regard to
the “territory that came under Israeli military government control in 1967”,
the line indicated “is the administrative boundary” with Jordan.
77. Lastly, a number of agreements have been signed
since 1993 between Israel and the Palestine Liberation Organization imposing
various obligations on each party. Those agreements inter alia
required Israel to transfer to Palestinian authorities certain powers and
responsibilities exercised in the Occupied Palestinian Territory by its
military authorities and civil administration. Such transfers have
taken place, but, as a result of subsequent events, they remained partial and
limited.
78. The Court would observe that, under customary international law as
reflected (see paragraph 89 below) in Article 42 of the Regulations
Respecting the Laws and Customs of War on Land annexed to the Fourth Hague
Convention of 18 October 1907 (hereinafter “the Hague Regulations
of 1907”), territory is considered occupied when it is actually placed under
the authority of the hostile army, and the occupation extends only to the
territory where such authority has been established and can be exercised. The territories
situated between the Green Line (see paragraph 72 above) and the former
eastern boundary of Palestine under the Mandate were occupied by Israel in
1967 during the armed conflict between Israel and Jordan. Under
customary international law, these were therefore occupied territories in
which Israel had the status of occupying Power. Subsequent events in
these territories, as described in paragraphs 75 to 77 above, have done
nothing to alter this situation. All these territories (including East
Jerusalem) remain occupied territories and Israel has continued to have the
status of occupying Power. * 79. It is
essentially in these territories that Israel has constructed or plans to
construct the works described in the report of the Secretary‑General.
The Court will now describe those works, basing itself on that report.
For developments subsequent to the publication of that report, the
Court will refer to complementary information contained in the Written
Statement of the United Nations, which was intended by the Secretary‑General
to supplement his report (hereinafter “Written Statement of the Secretary‑General”).
80. The report of the Secretary‑General states that “The Government of
Israel has since 1996 considered plans to halt infiltration into Israel from
the central and northern West Bank . . .”
(Para. 4.) According to that report, a plan of this type was
approved for the first time by the Israeli Cabinet in July 2001.
Then, on 14 April 2002, the Cabinet adopted a decision for the
construction of works, forming what Israel describes as a “security fence”,
80 kilometres in length, in three areas of the West Bank. The project was
taken a stage further when, on 23 June 2002, the Israeli Cabinet
approved the first phase of the construction of a “continuous fence” in the
West Bank (including East Jerusalem). On 14 August 2002, it
adopted the line of that “fence” for the work in Phase A, with a view to
the construction of a complex 123 kilometres long in the northern West
Bank, running from the Salem checkpoint (north of Jenin) to the settlement at
Elkana. Phase B of the work was approved in
December 2002. It entailed a stretch of some 40 kilometres
running east from the Salem checkpoint towards Beth Shean along the northern
part of the Green Line as far as the Jordan Valley. Furthermore, on
1 October 2003, the Israeli Cabinet approved a full route, which,
according to the report of the Secretary‑General, “will form one
continuous line stretching 720 kilometres along the West Bank”. A
map showing completed and planned sections was posted on the Israeli Ministry
of Defence website on 23 October 2003. According to the
particulars provided on that map, a continuous section (Phase C)
encompassing a number of large settlements will link the north‑western
end of the “security fence” built around Jerusalem with the southern point of
Phase A construction at Elkana. According to the same map, the
“security fence” will run for 115 kilometres from the Har Gilo
settlement near Jerusalem to the Carmel settlement south‑east of
Hebron (Phase D). According to Ministry of Defence documents,
work in this sector is due for completion in 2005. Lastly, there are
references in the case file to Israel’s planned construction of a “security
fence” following the Jordan Valley along the mountain range to the west.
81. According to the Written Statement of the Secretary‑General, the
first part of these works (Phase A), which ultimately extends for a
distance of 150 kilometres, was declared completed on
31 July 2003. It is reported that approximately
56,000 Palestinians would be encompassed in enclaves. During this
phase, two sections totalling 19.5 kilometres were built around Jerusalem.
In November 2003 construction of a new section was begun along the Green
Line to the west of the Nazlat Issa‑Baqa al‑Sharqiya enclave,
which in January 2004 was close to completion at the time when the
Secretary‑General submitted his Written Statement. According to
the Written Statement of the Secretary‑General, the works carried out
under Phase B were still in progress in January 2004. Thus an
initial section of this stretch, which runs near or on the Green Line to the
village of al‑Mutilla, was almost complete in January 2004.
Two additional sections diverge at this point. Construction started in
early January 2004 on one section that runs due east as far as the
Jordanian border. Construction of the second section, which is planned
to run from the Green Line to the village of Taysir, has barely begun.
The United Nations has, however, been informed that this second section might
not be built. The Written
Statement of the Secretary‑General further states that Phase C of
the work, which runs from the terminus of Phase A, near the Elkana
settlement, to the village of Nu’man, south‑east of Jerusalem, began in
December 2003. This section is divided into three stages. In
Stage C1, between inter alia the villages of Rantis and Budrus, approximately
4 kilometres out of a planned total of 40 kilometres have been
constructed. Stage C2, which will surround the so‑called
“Ariel Salient” by cutting 22 kilometres into the West Bank, will
incorporate 52,000 Israeli settlers. Stage C3 is to involve
the construction of two “depth barriers”; one of these is to run north‑south,
roughly parallel with the section of Stage C1 currently under
construction between Rantis and Budrus, whilst the other runs east‑west
along a ridge said to be part of the route of Highway 45, a motorway
under construction. If construction of the two barriers were completed,
two enclaves would be formed, encompassing 72,000 Palestinians in
24 communities.
Further construction also started in late
November 2003 along the south‑eastern part of the municipal
boundary of Jerusalem, following a route that, according to the Written
Statement of the Secretary‑General, cuts off the suburban village of El‑Ezariya
from Jerusalem and splits the neighbouring Abu Dis in two. As at
25 January 2004, according to the Written Statement of the
Secretary‑General, some 190 kilometres of construction had been
completed, covering Phase A and the greater part of Phase B.
Further construction in Phase C had begun in certain areas of the
central West Bank and in Jerusalem. Phase D, planned for the
southern part of the West Bank, had not yet begun. The Israeli
Government has explained that the routes and timetable as described above are
subject to modification. In February 2004, for example, an 8‑kilometre
section near the town of Baqa al‑Sharqiya was demolished, and the
planned length of the wall appears to have been slightly reduced.
82. According to the description in the report and the Written Statement of
the Secretary‑General, the works planned or completed have resulted or
will result in a complex consisting essentially of: (1)
a fence with electronic sensors; (2)
a ditch (up to 4 metres deep); (3)
a two‑lane asphalt patrol road; (4)
a trace road (a strip of sand smoothed to detect footprints) running parallel
to the fence; (5)
a stack of six coils of barbed wire marking the perimeter of the
complex. The complex has
a width of 50 to 70 metres, increasing to as much as 100 metres in
some places. “Depth barriers” may be added to these works. The
approximately 180 kilometres of the complex completed or under
construction as of the time when the Secretary‑General submitted his
report included some 8.5 kilometres of concrete wall. These are
generally found where Palestinian population centres are close to or abut
Israel (such as near Qalqiliya and Tulkarm or in parts of Jerusalem).
83. According to the report of the Secretary‑General, in its
northernmost part, the wall as completed or under construction barely
deviates from the Green Line. It nevertheless lies within occupied
territories for most of its course. The works deviate more than
7.5 kilometres from the Green Line in certain places to encompass
settlements, while encircling Palestinian population areas. A stretch
of 1 to 2 kilometres west of Tulkarm appears to run on the Israeli side
of the Green Line. Elsewhere, on the other hand, the planned route
would deviate eastward by up to 22 kilometres.
In the case of Jerusalem, the existing works and the planned route lie well
beyond the Green Line and even in some cases beyond the eastern municipal
boundary of Jerusalem as fixed by Israel.
84. On the basis of that route, approximately 975 square kilometres (or
16.6 per cent of the West Bank) would, according to the report of the
Secretary‑General, lie between the Green Line and the wall. This
area is stated to be home to 237,000 Palestinians. If the full
wall were completed as planned, another 160,000 Palestinians would live
in almost completely encircled communities, described as enclaves in the
report. As a result of the planned route, nearly 320,000 Israeli
settlers (of whom 178,000 in East Jerusalem) would be living in the area
between the Green Line and the wall.
85. Lastly, it should be noted that the construction of the wall has been
accompanied by the creation of a new administrative régime. Thus in
October 2003 the Israeli Defence Forces issued Orders establishing the part
of the West Bank lying between the Green Line and the wall as a “Closed
Area”. Residents of this area may no longer remain in it, nor may non‑residents
enter it, unless holding a permit or identity card issued by the Israeli
authorities. According to the report of the Secretary‑General,
most residents have received permits for a limited period. Israeli
citizens, Israeli permanent residents and those eligible to immigrate to
Israel in accordance with the Law of Return may remain in, or move freely to,
from and within the Closed Area without a permit. Access to and exit
from the Closed Area can only be made through access gates, which are opened
infrequently and for short periods. *
*
86. The Court will now determine the rules and principles of international
law which are relevant in assessing the legality of the measures taken by
Israel. Such rules and principles can be found in the United Nations
Charter and certain other treaties, in customary international law and in the
relevant resolutions adopted pursuant to the Charter by the General Assembly
and the Security Council. However, doubts have been expressed by Israel
as to the applicability in the Occupied Palestinian Territory of certain
rules of international humanitarian law and human rights instruments.
The Court will now consider these various questions.
87. The Court first recalls that, pursuant to Article 2,
paragraph 4, of the United Nations Charter:
“All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of
any State, or in any other manner inconsistent with the Purposes of the
United Nations.” On 24 October 1970, the General Assembly adopted
resolution 2625 (XXV), entitled “Declaration on Principles of
International Law concerning Friendly Relations and Co‑operation among
States” (hereinafter “resolution 2625 (XXV)”), in which it
emphasized that “No territorial acquisition resulting from the threat or use
of force shall be recognized as legal.” As the Court stated in its
Judgment in the case concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America),
the principles as to the use of force incorporated in the Charter reflect
customary international law (see I.C.J. Reports 1986, pp. 98‑101,
paras. 187‑190); the same is true of its corollary entailing
the illegality of territorial acquisition resulting from the threat or use of
force.
88. The Court also notes that the principle of self‑determination of
peoples has been enshrined in the United Nations Charter and reaffirmed by
the General Assembly in resolution 2625 (XXV) cited above, pursuant
to which “Every State has the duty to refrain from any forcible action which
deprives peoples referred to [in that resolution] . . . of
their right to self‑determination.” Article 1 common to the
International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights reaffirms the right of
all peoples to self‑determination, and lays upon the States parties the
obligation to promote the realization of that right and to respect it, in
conformity with the provisions of the United Nations Charter. The Court would
recall that in 1971 it emphasized that current developments in “international
law in regard to non‑self‑governing territories, as enshrined in
the Charter of the United Nations, made the principle of self‑determination
applicable to all [such territories]”. The Court went on to state that
“These developments leave little doubt that the ultimate objective of the
sacred trust” referred to in Article 22, paragraph 1, of the
Covenant of the League of Nations “was the self‑determination . . .
of the peoples concerned” (Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, p. 31, paras. 52‑53). The Court has referred
to this principle on a number of occasions in its jurisprudence (ibid.;
see also Western Sahara, Advisory Opinion, I.C.J. Reports 1975,
p. 68, para. 162). The Court indeed made it clear that the
right of peoples to self‑determination is today a right erga omnes
(see East Timor (Portugal v. Australia), Judgment, I.C.J.
Reports 1995, p. 102, para. 29).
89. As regards international humanitarian law, the Court would first note
that Israel is not a party to the Fourth Hague Convention of 1907, to which
the Hague Regulations are annexed. The Court observes that, in the
words of the Convention, those Regulations were prepared “to revise the
general laws and customs of war” existing at that time. Since then,
however, the International Military Tribunal of Nuremberg has found that the
“rules laid down in the Convention were recognised by all civilised nations,
and were regarded as being declaratory of the laws and customs of war”
(Judgment of the International Military Tribunal of Nuremberg,
30 September and 1 October 1946, p. 65). The Court
itself reached the same conclusion when examining the rights and duties of
belligerents in their conduct of military operations (Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996 (I), p. 256, para. 75). The Court considers
that the provisions of the Hague Regulations have become part of customary
law, as is in fact recognized by all the participants in the proceedings
before the Court.
The Court also observes that, pursuant to
Article 154 of the Fourth Geneva Convention, that Convention is
supplementary to Sections II and III of the Hague
Regulations. Section III of those Regulations, which concerns
“Military authority over the territory of the hostile State”, is particularly
pertinent in the present case.
90. Secondly, with regard to the Fourth Geneva Convention, differing views
have been expressed by the participants in these proceedings. Israel,
contrary to the great majority of the other participants, disputes the
applicability de jure of the Convention to the Occupied Palestinian
Territory. In particular, in paragraph 3 of Annex I to the
report of the Secretary‑General, entitled “Summary Legal Position of
the Government of Israel”, it is stated that Israel does not agree that the
Fourth Geneva Convention “is applicable to the occupied Palestinian
Territory”, citing “the lack of recognition of the territory as sovereign
prior to its annexation by Jordan and Egypt” and inferring that it is “not a
territory of a High Contracting Party as required by the Convention”.
91. The Court would recall that the Fourth Geneva Convention was ratified by
Israel on 6 July 1951 and that Israel is a party to that
Convention. Jordan has also been a party thereto since
29 May 1951. Neither of the two States has made any
reservation that would be pertinent to the present proceedings. Furthermore,
Palestine gave a unilateral undertaking, by declaration of
7 June 1982, to apply the Fourth Geneva Convention.
Switzerland, as depositary State, considered that unilateral undertaking
valid. It concluded, however, that it “[was] not - as a depositary -
in a position to decide whether” “the request [dated 14 June 1989] from the
Palestine Liberation Movement in the name of the ‘State of Palestine’ to
accede” inter alia to the Fourth Geneva Convention “can be considered
as an instrument of accession”.
92. Moreover, for the purpose of determining the scope of application of the
Fourth Geneva Convention, it should be recalled that under common
Article 2 of the four Conventions of 12 August 1949:
“In addition to the provisions which shall be implemented in peacetime, the
present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation
of the territory of a High Contracting Party, even if the said occupation
meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present
Convention, the Powers who are parties thereto shall remain bound by it in
their mutual relations. They shall furthermore be bound by the
Convention in relation to the said Power, if the latter accepts and applies
the provisions thereof.”
93. After the occupation of the West Bank in 1967, the Israeli authorities
issued an order No. 3 stating in its Article 35 that: “the
Military Court . . . must apply the provisions of the Geneva
Convention dated 12 August 1949 relative to the Protection of
Civilian Persons in Time of War with respect to judicial procedures. In
case of conflict between this Order and the said Convention, the Convention
shall prevail.” Subsequently, the Israeli authorities have indicated on a number of
occasions that in fact they generally apply the humanitarian provisions of
the Fourth Geneva Convention within the occupied territories. However,
according to Israel’s position as briefly recalled in paragraph 90 above,
that Convention is not applicable de jure within those territories
because, under Article 2, paragraph 2, it applies only in the case
of occupation of territories falling under the sovereignty of a High
Contracting Party involved in an armed conflict. Israel explains that
Jordan was admittedly a party to the Fourth Geneva Convention in 1967, and
that an armed conflict broke out at that time between Israel and Jordan, but
it goes on to observe that the territories occupied by Israel subsequent to
that conflict had not previously fallen under Jordanian sovereignty. It
infers from this that that Convention is not applicable de jure
in those territories. According however to the great majority of other
participants in the proceedings, the Fourth Geneva Convention is applicable
to those territories pursuant to Article 2, paragraph 1, whether or
not Jordan had any rights in respect thereof prior to 1967.
94. The Court would recall that, according to customary international law as
expressed in Article 31 of the Vienna Convention on the Law of Treaties
of 23 May 1969, a treaty must be interpreted in good faith in
accordance with the ordinary meaning to be given to its terms in their
context and in the light of its object and purpose. Article 32
provides that:
“Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the application of
article 31, or to determine the meaning when the interpretation
according to article 31 . . . leaves the meaning
ambiguous or obscure; or . . . leads to a result which
is manifestly obscure or unreasonable.” (See Oil Platforms (Islamic
Republic of Iran v. United States of America), Preliminary
Objections, I.C.J. Reports 1996 (II), p. 812,
para. 23; see, similarly, Kasikili/Sedudu Island
(Botswana/Namibia), I.C.J. Reports 1999 (II), p. 1059,
para. 18, and Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645,
para. 37.)
95. The Court notes that, according to the first paragraph of Article 2
of the Fourth Geneva Convention, that Convention is applicable when two
conditions are fulfilled: that there exists an armed conflict (whether
or not a state of war has been recognized); and that the conflict has
arisen between two contracting parties. If those two conditions are
satisfied, the Convention applies, in particular, in any territory occupied
in the course of the conflict by one of the contracting parties. The object of
the second paragraph of Article 2 is not to restrict the scope of
application of the Convention, as defined by the first paragraph, by
excluding therefrom territories not falling under the sovereignty of one of
the contracting parties. It is directed simply to making it clear that,
even if occupation effected during the conflict met no armed resistance, the
Convention is still applicable.
This interpretation reflects the intention of the
drafters of the Fourth Geneva Convention to protect civilians who find
themselves, in whatever way, in the hands of the occupying Power.
Whilst the drafters of the Hague Regulations of 1907 were as much concerned
with protecting the rights of a State whose territory is occupied, as with
protecting the inhabitants of that territory, the drafters of the Fourth
Geneva Convention sought to guarantee the protection of civilians in time of
war, regardless of the status of the occupied territories, as is shown by
Article 47 of the Convention. That
interpretation is confirmed by the Convention’s travaux préparatoires.
The Conference of Government Experts convened by the International Committee
of the Red Cross (hereinafter, “ICRC”) in the aftermath of the Second World
War for the purpose of preparing the new Geneva Conventions recommended that
these conventions be applicable to any armed conflict “whether [it] is or is not
recognized as a state of war by the parties” and “in cases of occupation of
territories in the absence of any state of war” (Report on the Work of the
Conference of Government Experts for the Study of the Conventions for the
Protection of War Victims, Geneva, 14‑26 April 1947,
p. 8). The drafters of the second paragraph of Article 2 thus
had no intention, when they inserted that paragraph into the Convention, of
restricting the latter’s scope of application. They were merely seeking
to provide for cases of occupation without combat, such as the occupation of
Bohemia and Moravia by Germany in 1939.
96. The Court would moreover note that the States parties to the Fourth
Geneva Convention approved that interpretation at their Conference on
15 July 1999. They issued a statement in which they
“reaffirmed the applicability of the Fourth Geneva Convention to the Occupied
Palestinian Territory, including East Jerusalem”. Subsequently, on
5 December 2001, the High Contracting Parties, referring in particular
to Article 1 of the Fourth Geneva Convention of 1949, once again
reaffirmed the “applicability of the Fourth Geneva Convention to the Occupied
Palestinian Territory, including East Jerusalem”. They further reminded
the Contracting Parties participating in the Conference, the parties to the
conflict, and the State of Israel as occupying Power, of their respective
obligations.
97. Moreover, the Court would observe that the ICRC, whose special position
with respect to execution of the Fourth Geneva Convention must be “recognized
and respected at all times” by the parties pursuant to Article 142 of
the Convention, has also expressed its opinion on the interpretation to be
given to the Convention. In a declaration of 5 December 2001,
it recalled that “the ICRC has always affirmed the de jure
applicability of the Fourth Geneva Convention to the territories occupied
since 1967 by the State of Israel, including East Jerusalem”.
98. The Court notes that the General Assembly has, in many of its
resolutions, taken a position to the same effect. Thus on
10 December 2001 and 9 December 2003, in
resolutions 56/60 and 58/97, it reaffirmed “that the Geneva Convention
relative to the Protection of Civilian Persons in Time of War, of
12 August 1949, is applicable to the Occupied Palestinian
Territory, including East Jerusalem, and other Arab territories occupied by
Israel since 1967”.
99. The Security Council, for its part, had already on 14 June 1967
taken the view in resolution 237 (1967) that “all the obligations of the
Geneva Convention relative to the Treatment of Prisoners of
War . . . should be complied with by the parties involved in
the conflict”. Subsequently,
on 15 September 1969, the Security Council, in resolution 271
(1969), called upon “Israel scrupulously to observe the provisions of the
Geneva Conventions and international law governing military
occupation”. Ten years
later, the Security Council examined “the policy and practices of Israel in
establishing settlements in the Palestinian and other Arab territories
occupied since 1967”. In resolution 446 (1979) of
22 March 1979, the Security Council considered that those
settlements had “no legal validity” and affirmed “once more that the
Geneva Convention relative to the Protection of Civilian Persons in Time of
War, of 12 August 1949, is applicable to the Arab territories
occupied by Israel since 1967, including Jerusalem”. It called “once
more upon Israel, as the occupying Power, to abide scrupulously” by that
Convention. On
20 December 1990, the Security Council, in
resolution 681 (1990), urged “the Government of Israel to accept
the de jure applicability of the Fourth Geneva
Convention . . . to all the territories occupied by Israel
since 1967 and to abide scrupulously by the provisions of the
Convention”. It further called upon “the high contracting parties to
the said Fourth Geneva Convention to ensure respect by Israel, the occupying
Power, for its obligations under the Convention in accordance with
article 1 thereof”. Lastly, in
resolutions 799 (1992) of 18 December 1992 and
904 (1994) of 18 March 1994, the Security Council reaffirmed
its position concerning the applicability of the Fourth Geneva Convention in
the occupied territories.
100. The Court would note finally that the Supreme Court of Israel, in a
judgment dated 30 May 2004, also found that:
“The military operations of the [Israeli Defence Forces] in Rafah, to the
extent they affect civilians, are governed by Hague Convention IV Respecting
the Laws and Customs of War on Land 1907 . . . and the Geneva
Convention Relative to the Protection of Civilian Persons in Time of War
1949.”
101. In view of the foregoing, the Court considers that the Fourth Geneva
Convention is applicable in any occupied territory in the event of an armed
conflict arising between two or more High Contracting Parties. Israel
and Jordan were parties to that Convention when the 1967 armed conflict broke
out. The Court accordingly finds that that Convention is applicable in
the Palestinian territories which before the conflict lay to the east of the
Green Line and which, during that conflict, were occupied by Israel, there
being no need for any enquiry into the precise prior status of those
territories. * 102. The
participants in the proceedings before the Court also disagree whether the
international human rights conventions to which Israel is party apply within
the Occupied Palestinian Territory. Annex I to the report of the
Secretary‑General states:
“4. Israel denies that the International Covenant on
Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights, both of which it has signed, are applicable to the
occupied Palestinian territory. It asserts that humanitarian law is the
protection granted in a conflict situation such as the one in the West Bank
and Gaza Strip, whereas human rights treaties were intended for the
protection of citizens from their own Government in times of peace.” Of the other
participants in the proceedings, those who addressed this issue contend that,
on the contrary, both Covenants are applicable within the Occupied
Palestinian Territory.
103. On 3 October 1991 Israel ratified both the International
Covenant on Economic, Social and Cultural Rights of
19 December 1966 and the International Covenant on Civil and
Political Rights of the same date, as well as the United Nations Convention
on the Rights of the Child of 20 November 1989. It is a party
to these three instruments.
104. In order to determine whether these texts are applicable in the Occupied
Palestinian Territory, the Court will first address the issue of the
relationship between international humanitarian law and human rights law and
then that of the applicability of human rights instruments outside national
territory.
105. In its Advisory Opinion of 8 July 1996 on the Legality of
the Threat or Use of Nuclear Weapons, the Court had occasion to address
the first of these issues in relation to the International Covenant on Civil
and Political Rights. In those proceedings certain States had argued
that “the Covenant was directed to the protection of human rights in
peacetime, but that questions relating to unlawful loss of life in
hostilities were governed by the law applicable in armed conflict” (I.C.J.
Reports 1996 (I), p. 239, para. 24). The Court
rejected this argument, stating that: “the
protection of the International Covenant of Civil and Political Rights does
not cease in times of war, except by operation of Article 4 of the
Covenant whereby certain provisions may be derogated from in a time of
national emergency. Respect for the right to life is not, however, such
a provision. In principle, the right not arbitrarily to be deprived of
one’s life applies also in hostilities. The test of what is an
arbitrary deprivation of life, however, then falls to be determined by the
applicable lex specialis, namely, the law applicable in armed conflict
which is designed to regulate the conduct of hostilities.” (Ibid.,
p. 240, para. 25.)
106. More generally, the Court considers that the protection offered by human
rights conventions does not cease in case of armed conflict, save through the
effect of provisions for derogation of the kind to be found in Article 4
of the International Covenant on Civil and Political Rights. As regards
the relationship between international humanitarian law and human rights law,
there are thus three possible situations: some rights may be
exclusively matters of international humanitarian
law; others may be exclusively matters of human rights law; yet
others may be matters of both these branches of international law. In
order to answer the question put to it, the Court will have to take into
consideration both these branches of international law, namely human rights
law and, as lex specialis, international humanitarian law.
107. It remains to be determined whether the two international Covenants and
the Convention on the Rights of the Child are applicable only on the
territories of the States parties thereto or whether they are also applicable
outside those territories and, if so, in what circumstances.
108. The scope of application of the International Covenant on Civil and
Political Rights is defined by Article 2, paragraph 1, thereof,
which provides:
“Each State Party to the present Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.” This provision
can be interpreted as covering only individuals who are both present within a
State’s territory and subject to that State’s jurisdiction. It can also
be construed as covering both individuals present within a State’s territory
and those outside that territory but subject to that State’s
jurisdiction. The Court will thus seek to determine the meaning to be
given to this text.
109. The Court would observe that, while the jurisdiction of States is
primarily territorial, it may sometimes be exercised outside the national
territory. Considering the object and purpose of the International
Covenant on Civil and Political Rights, it would seem natural that, even when
such is the case, States parties to the Covenant should be bound to comply
with its provisions. The constant
practice of the Human Rights Committee is consistent with this. Thus, the
Committee has found the Covenant applicable where the State exercises its
jurisdiction on foreign territory. It has ruled on the legality of acts
by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or
Argentina (case No. 52/79, López Burgos v. Uruguay;
case No. 56/79, Lilian Celiberti de Casariego v. Uruguay).
It decided to the same effect in the case of the confiscation of a passport
by a Uruguayan consulate in Germany (case No. 106/81, Montero v.
Uruguay). The travaux
préparatoires of the Covenant confirm the Committee’s interpretation of
Article 2 of that instrument. These show that, in adopting the wording
chosen, the drafters of the Covenant did not intend to allow States to escape
from their obligations when they exercise jurisdiction outside their national
territory. They only intended to prevent persons residing abroad from
asserting, vis‑à‑vis their State of origin, rights that do not
fall within the competence of that State, but of that of the State of
residence (see the discussion of the preliminary draft in the Commission on
Human Rights, E/CN.4/SR.194, para. 46; and United Nations, Official
Records of the General Assembly, Tenth Session, Annexes, A/2929,
Part II, Chap. V, para. 4 (1955)).
110. The Court takes note in this connection of the
position taken by Israel, in relation to the applicability of the Covenant,
in its communications to the Human Rights Committee, and of the view of the
Committee. In 1998, Israel
stated that, when preparing its report to the Committee, it had had to face
the question “whether individuals resident in the occupied territories were
indeed subject to Israel’s jurisdiction” for purposes of the application of
the Covenant (CCPR/C/SR.1675, para. 21). Israel took the position
that “the Covenant and similar instruments did not apply directly to the
current situation in the occupied territories” (ibid., para. 27). The Committee,
in its concluding observations after examination of the report, expressed
concern at Israel’s attitude and pointed “to the long‑standing presence
of Israel in [the occupied] territories, Israel’s ambiguous attitude towards
their future status, as well as the exercise of effective jurisdiction by
Israeli security forces therein” (CCPR/C/79/Add.93, para. 10). In
2003 in face of Israel’s consistent position, to the effect that “the
Covenant does not apply beyond its own territory, notably in the West Bank
and Gaza . . .”, the Committee reached the following
conclusion: “in
the current circumstances, the provisions of the Covenant apply to the
benefit of the population of the Occupied Territories, for all conduct by the
State party’s authorities or agents in those territories that affect the
enjoyment of rights enshrined in the Covenant and fall within the ambit of
State responsibility of Israel under the principles of public international
law” (CCPR/CO/78/ISR, para. 11).
111. In conclusion, the Court considers that the International Covenant on
Civil and Political Rights is applicable in respect of acts done by a State
in the exercise of its jurisdiction outside its own territory.
112. The International Covenant on Economic, Social and Cultural Rights
contains no provision on its scope of application. This may be
explicable by the fact that this Covenant guarantees rights which are
essentially territorial. However, it is not to be excluded that it applies
both to territories over which a State party has sovereignty and to those
over which that State exercises territorial jurisdiction. Thus
Article 14 makes provision for transitional measures in the case of any
State which “at the time of becoming a Party, has not been able to secure in
its metropolitan territory or other territories under its jurisdiction
compulsory primary education, free of charge”. It is not
without relevance to recall in this regard the position taken by Israel in
its reports to the Committee on Economic, Social and Cultural Rights.
In its initial report to the Committee of 4 December 1998, Israel
provided “statistics indicating the enjoyment of the rights enshrined in the
Covenant by Israeli settlers in the occupied Territories”. The
Committee noted that, according to Israel, “the Palestinian population within
the same jurisdictional areas were excluded from both the report and the
protection of the Covenant” (E/C.12/1/Add. 27, para. 8). The
Committee expressed its concern in this regard, to which Israel replied in a further
report of 19 October 2001 that it has “consistently maintained that
the Covenant does not apply to areas that are not subject to its sovereign
territory and jurisdiction” (a formula inspired by the language of the
International Covenant on Civil and Political Rights). This position,
continued Israel, is “based on the well‑established distinction between
human rights and humanitarian law under international law”. It
added: “the Committee’s mandate cannot relate to events in the West
Bank and the Gaza Strip, inasmuch as they are part and parcel of the context
of armed conflict as distinct from a relationship of human rights”
(E/1990/6/Add. 32, para. 5). In view of these observations,
the Committee reiterated its concern about Israel’s position and reaffirmed
“its view that the State party’s obligations under the Covenant apply to all
territories and populations under its effective control” (E/C.12/1/Add.90,
paras. 15 and 31). For the reasons
explained in paragraph 106 above, the Court cannot accept Israel’s
view. It would also observe that the territories occupied by Israel
have for over 37 years been subject to its territorial jurisdiction as
the occupying Power. In the exercise of the powers available to it on
this basis, Israel is bound by the provisions of the International Covenant
on Economic, Social and Cultural Rights. Furthermore, it is under an
obligation not to raise any obstacle to the exercise of such rights in those fields
where competence has been transferred to Palestinian authorities.
113. As regards the Convention on the Rights of the Child of 20 November
1989, that instrument contains an Article 2 according to which “States
Parties shall respect and ensure the rights set forth in
the . . . Convention to each child within their
jurisdiction . . .”. That Convention is therefore
applicable within the Occupied Palestinian Territory. *
*
114. Having determined the rules and principles of international law relevant
to reply to the question posed by the General Assembly, and having ruled in
particular on the applicability within the Occupied Palestinian Territory of
international humanitarian law and human rights law, the Court will now seek
to ascertain whether the construction of the wall has violated those rules
and principles. *
115. In this regard, Annex II to the report of the Secretary‑General,
entitled “Summary Legal Position of the Palestine Liberation Organization”,
states that “The construction of the Barrier is an attempt to annex the
territory contrary to international law” and that “The de facto annexation of
land interferes with the territorial sovereignty and consequently with the
right of the Palestinians to self‑determination.”
This view was echoed in certain of the written statements submitted to the
Court and in the views expressed at the hearings. Inter alia, it
was contended that: “The wall severs the territorial sphere over which
the Palestinian people are entitled to exercise their right of self‑determination
and constitutes a violation of the legal principle prohibiting the
acquisition of territory by the use of force.” In this connection, it
was in particular emphasized that “The route of the wall is designed to change
the demographic composition of the Occupied Palestinian Territory, including
East Jerusalem, by reinforcing the Israeli settlements” illegally established
on the Occupied Palestinian Territory. It was further contended that
the wall aimed at “reducing and parcelling out the territorial sphere over
which the Palestinian people are entitled to exercise their right of self‑determination”.
116. For its part, Israel has argued that the wall’s sole purpose is to
enable it effectively to combat terrorist attacks launched from the West
Bank. Furthermore, Israel has repeatedly stated that the Barrier is a
temporary measure (see report of the Secretary‑General,
para. 29). It did so inter alia through its Permanent
Representative to the United Nations at the Security Council meeting of
14 October 2003, emphasizing that “[the fence] does not annex
territories to the State of Israel”, and that Israel is “ready and able, at
tremendous cost, to adjust or dismantle a fence if so required as part of a
political settlement” (S/PV.4841, p. 10). Israel’s Permanent
Representative restated this view before the General Assembly on 20 October
and 8 December 2003. On this latter occasion, he added:
“As soon as the terror ends, the fence will no longer be necessary. The
fence is not a border and has no political significance. It does not
change the legal status of the territory in any way.” (A/ES‑10/PV.23,
p. 6.)
117. The Court would recall that both the General Assembly and the Security
Council have referred, with regard to Palestine, to the customary rule of
“the inadmissibility of the acquisition of territory by war” (see
paragraphs 74 and 87 above). Thus in resolution 242 (1967) of
22 November 1967, the Security Council, after recalling this rule,
affirmed that: “the
fulfilment of Charter principles requires the establishment of a just and
lasting peace in the Middle East which should include the application of both
the following principles: (i) Withdrawal of Israel armed forces from
territories occupied in the recent conflict; (ii) Termination of all claims or states of
belligerency and respect for and acknowledgement of the sovereignty,
territorial integrity and political independence of every State in the area
and their right to live in peace within secure and recognized boundaries free
from threats or acts of force”. It is on this
same basis that the Council has several times condemned the measures taken by
Israel to change the status of Jerusalem (see paragraph 75 above).
118. As regards the principle of the right of
peoples to self‑determination, the Court observes that the existence of
a “Palestinian people” is no longer in issue. Such existence has
moreover been recognized by Israel in the exchange of letters of
9 September 1993 between Mr. Yasser Arafat, President of
the Palestine Liberation Organization (PLO) and
Mr. Yitzhak Rabin, Israeli Prime Minister. In that
correspondence, the President of the PLO recognized “the right of the State
of Israel to exist in peace and security” and made various other
commitments. In reply, the Israeli Prime Minister informed him that, in
the light of those commitments, “the Government of Israel has decided to
recognize the PLO as the representative of the Palestinian people”. The
Israeli‑Palestinian Interim Agreement on the West Bank and the Gaza
Strip of 28 September 1995 also refers a number of times to the
Palestinian people and its “legitimate rights” (Preamble, paras. 4, 7, 8;
Article II, para. 2; Article III, paras. 1 and 3; Article XXII, para. 2). The Court
considers that those rights include the right to self‑determination, as
the General Assembly has moreover recognized on a number of occasions (see,
for example, resolution 58/163 of 22 December 2003).
119. The Court notes that the route of the wall as fixed by the Israeli
Government includes within the “Closed Area” (see paragraph 85 above)
some 80 per cent of the settlers living in the Occupied Palestinian
Territory. Moreover, it is apparent from an examination of the map
mentioned in paragraph 80 above that the wall’s sinuous route has been
traced in such a way as to include within that area the great majority of the
Israeli settlements in the occupied Palestinian Territory (including East Jerusalem).
120. As regards these settlements, the Court notes that Article 49,
paragraph 6, of the Fourth Geneva Convention provides: “The
Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies.” That provision prohibits
not only deportations or forced transfers of population such as those carried
out during the Second World War, but also any measures taken by an occupying
Power in order to organize or encourage transfers of parts of its own population
into the occupied territory. In this
respect, the information provided to the Court shows that, since 1977, Israel
has conducted a policy and developed practices involving the establishment of
settlements in the Occupied Palestinian Territory, contrary to the terms of
Article 49, paragraph 6, just cited. The Security
Council has thus taken the view that such policy and practices “have no legal
validity”. It has also called upon “Israel, as the occupying Power, to
abide scrupulously” by the Fourth Geneva Convention and: “to
rescind its previous measures and to desist from taking any action which
would result in changing the legal status and geographical nature and
materially affecting the demographic composition of the Arab territories
occupied since 1967, including Jerusalem and, in particular, not to transfer
parts of its own civilian population into the occupied Arab territories”
(resolution 446 (1979) of 22 March 1979). The Council reaffirmed its position in resolutions 452 (1979)
of 20 July 1979 and 465 (1980) of
1 March 1980. Indeed, in the latter case it described
“Israel’s policy and practices of settling parts of its population and new
immigrants in [the occupied] territories” as a “flagrant violation” of the
Fourth Geneva Convention. The Court
concludes that the Israeli settlements in the Occupied Palestinian Territory
(including East Jerusalem) have been established in breach of international
law.
121. Whilst the Court notes the assurance given by Israel that the
construction of the wall does not amount to annexation and that the wall is
of a temporary nature (see paragraph 116 above), it nevertheless cannot
remain indifferent to certain fears expressed to it that the route of the
wall will prejudge the future frontier between Israel and Palestine, and the
fear that Israel may integrate the settlements and their means of
access. The Court considers that the construction of the wall and its
associated régime create a “fait accompli” on the ground that could well
become permanent, in which case, and notwithstanding the formal
characterization of the wall by Israel, it would be tantamount to de facto
annexation.
122. The Court recalls moreover that, according to the report of the
Secretary‑General, the planned route would incorporate in the area
between the Green Line and the wall more than 16 per cent of the
territory of the West Bank. Around 80 per cent of the settlers
living in the Occupied Palestinian Territory, that is 320,000 individuals,
would reside in that area, as well as 237,000 Palestinians.
Moreover, as a result of the construction of the wall, around 160,000 other
Palestinians would reside in almost completely encircled communities (see
paragraphs 84, 85 and 119 above). In other terms,
the route chosen for the wall gives expression in loco to the illegal
measures taken by Israel with regard to Jerusalem and the settlements, as
deplored by the Security Council (see paragraphs 75 and 120
above). There is also a risk of further alterations to the demographic
composition of the Occupied Palestinian Territory resulting from the
construction of the wall inasmuch as it is contributing, as will be further
explained in paragraph 133 below, to the departure of Palestinian populations
from certain areas. That construction, along with measures taken
previously, thus severely impedes the exercise by the Palestinian people of
its right to self‑determination, and is therefore a breach of Israel’s
obligation to respect that right. *
123. The construction of the wall also raises a number of issues in relation
to the relevant provisions of international humanitarian law and of human
rights instruments.
124. With regard to the Hague Regulations of 1907, the Court would recall
that these deal, in Section II, with hostilities and in particular with
“means of injuring the enemy, sieges, and bombardments”.
Section III deals with military authority in occupied territories.
Only Section III is currently applicable in the West Bank and
Article 23 (g) of the Regulations, in Section II, is
thus not pertinent.
Section III of the Hague Regulations includes
Articles 43, 46 and 52, which are applicable in the Occupied Palestinian
Territory. Article 43 imposes a duty on the occupant to “take all
measures within his power to restore, and, as far as possible, to insure
public order and life, respecting the laws in force in the country”.
Article 46 adds that private property must be “respected” and that it
cannot “be confiscated”. Lastly, Article 52 authorizes, within
certain limits, requisitions in kind and services for the needs of the army
of occupation.
125. A distinction is also made in the Fourth Geneva Convention between
provisions applying during military operations leading to occupation and
those that remain applicable throughout the entire period of
occupation. It thus states in Article 6:
“The present Convention shall apply from the outset of any conflict or
occupation mentioned in Article 2.
In the territory of Parties to the conflict, the application of the present
Convention shall cease on the general close of military operations.
In the case of occupied territory, the application of the present Convention
shall cease one year after the general close of military operations;
however, the Occupying Power shall be bound, for the duration of the
occupation, to the extent that such Power exercises the functions of
government in such territory, by the provisions of the following Articles of
the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59,
61 to 77, 143.
Protected persons whose release, repatriation or re‑establishment may
take place after such dates shall meanwhile continue to benefit by the present
Convention.” Since the
military operations leading to the occupation of the West Bank in 1967
ended a long time ago, only those Articles of the Fourth Geneva Convention
referred to in Article 6, paragraph 3, remain applicable in that
occupied territory.
126. These provisions include Articles 47, 49, 52, 53 and 59 of the
Fourth Geneva Convention. According
to Article 47:
“Protected persons who are in occupied territory shall not be deprived, in
any case or in any manner whatsoever, of the benefits of the present
Convention by any change introduced, as the result of the occupation of a
territory, into the institutions or government of the said territory, nor by
any agreement concluded between the authorities of the occupied territories
and the Occupying Power, nor by any annexation by the latter of the whole or
part of the occupied territory.” Article 49
reads as follows:
“Individual or mass forcible transfers, as well as
deportations of protected persons from occupied territory to the territory of
the Occupying Power or to that of any other country, occupied or not, are
prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation
of a given area if the security of the population or imperative military
reasons so demand. Such evacuations may not involve the displacement of
protected persons outside the bounds of the occupied territory except when
for material reasons it is impossible to avoid such displacement.
Persons thus evacuated shall be transferred back to their homes as soon as
hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure,
to the greatest practicable extent, that proper accommodation is provided to
receive the protected persons, that the removals are effected in satisfactory
conditions of hygiene, health, safety and nutrition, and that members of the
same family are not separated.
The Protecting Power shall be informed of any transfers and evacuations as
soon as they have taken place.
The Occupying Power shall not detain protected persons in an area
particularly exposed to the dangers of war unless the security of the
population or imperative military reasons so demand.
The Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies.” According to
Article 52:
“No contract, agreement or regulation shall impair the right of any worker,
whether voluntary or not and wherever he may be, to apply to the
representatives of the Protecting Power in order to request the said Power’s
intervention.
All measures aiming at creating unemployment or at restricting the
opportunities offered to workers in an occupied territory, in order to induce
them to work for the Occupying Power, are prohibited.” Article 53
provides that:
“Any destruction by the Occupying Power of real or personal property
belonging individually or collectively to private persons, or to the State,
or to other public authorities, or to social or cooperative organizations, is
prohibited, except where such destruction is rendered absolutely necessary by
military operations.” Lastly,
according to Article 59:
“If the whole or part of the population of an
occupied territory is inadequately supplied, the Occupying Power shall agree
to relief schemes on behalf of the said population, and shall facilitate them
by all the means at its disposal.
Such schemes, which may be undertaken either by States or by impartial
humanitarian organizations such as the International Committee of the Red
Cross, shall consist, in particular, of the provision of consignments of
foodstuffs, medical supplies and clothing.
All Contracting Parties shall permit the free passage of these consignments
and shall guarantee their protection.
A Power granting free passage to consignments on their way to territory occupied
by an adverse Party to the conflict shall, however, have the right to search
the consignments, to regulate their passage according to prescribed times and
routes, and to be reasonably satisfied through the Protecting Power that
these consignments are to be used for the relief of the needy population and
are not to be used for the benefit of the Occupying Power.”
127. The International Covenant on Civil and Political Rights also contains
several relevant provisions. Before further examining these, the Court
will observe that Article 4 of the Covenant allows for derogation to be
made, under various conditions, to certain provisions of that
instrument. Israel made use of its right of derogation under this
Article by addressing the following communication to the Secretary‑General
of the United Nations on 3 October 1991:
“Since its establishment, the State of Israel has been the victim of
continuous threats and attacks on its very existence as well as on the life
and property of its citizens.
These have taken the form of threats of war, of actual armed attacks, and
campaigns of terrorism resulting in the murder of and injury to human beings.
In view of the above, the State of Emergency which was proclaimed in
May 1948 has remained in force ever since. This situation
constitutes a public emergency within the meaning of article 4 (1)
of the Covenant.
The Government of Israel has therefore found it necessary, in accordance with
the said article 4, to take measures to the extent strictly required by
the exigencies of the situation, for the defence of the State and for the
protection of life and property, including the exercise of powers of arrest
and detention.
In so far as any of these measures are inconsistent with article 9 of
the Covenant, Israel thereby derogates from its obligations under that
provision.” The Court notes
that the derogation so notified concerns only Article 9 of the
International Covenant on Civil and Political Rights, which deals with the
right to liberty and security of person and lays down the rules applicable in
cases of arrest or detention. The other Articles of the Covenant
therefore remain applicable not only on Israeli territory, but also on the
Occupied Palestinian Territory.
128. Among these mention must be made of
Article 17, paragraph 1 of which reads as follows: “No one shall
be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and
reputation.” Mention must
also be made of Article 12, paragraph 1, which provides:
“Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose his
residence.”
129. In addition to the general guarantees of freedom of movement under
Article 12 of the International Covenant on Civil and Political Rights,
account must also be taken of specific guarantees of access to the Christian,
Jewish and Islamic Holy Places. The status of the Christian Holy Places
in the Ottoman Empire dates far back in time, the latest provisions relating
thereto having been incorporated into Article 62 of the Treaty of Berlin
of 13 July 1878. The Mandate for Palestine given to the
British Government on 24 July 1922 included an Article 13,
under which:
“All responsibility in connection with the Holy Places and religious
buildings or sites in Palestine, including that of preserving existing rights
and of securing free access to the Holy Places, religious buildings and sites
and the free exercise of worship, while ensuring the requirements of public
order and decorum, is assumed by the Mandatory . . .” Article 13 further stated: “nothing in this mandate shall
be construed as conferring . . . authority to interfere with
the fabric or the management of purely Moslem sacred shrines, the immunities
of which are guaranteed”. In the
aftermath of the Second World War, the General Assembly, in adopting resolution 181 (II)
on the future government of Palestine, devoted an entire chapter of the Plan
of Partition to the Holy Places, religious buildings and sites.
Article 2 of this Chapter provided, in so far as the Holy Places were
concerned: “the
liberty of access, visit and transit shall be guaranteed, in conformity with
existing rights, to all residents and citizens [of the Arab State, of the
Jewish State] and of the City of Jerusalem, as well as to aliens, without
distinction as to nationality, subject to requirements of national security,
public order and decorum”. Subsequently, in the aftermath of the armed conflict of 1948, the 1949
General Armistice Agreement between Jordan and Israel provided in
Article VIII for the establishment of a special committee for “the
formulation of agreed plans and arrangements for such matters as either Party
may submit to it” for the purpose of enlarging the scope of the Agreement and
of effecting improvement in its application. Such matters, on which an
agreement of principle had already been concluded, included “free access to
the Holy Places”. This commitment
concerned mainly the Holy Places located to the east of the Green Line.
However, some Holy Places were located west of that Line. This was the
case of the Room of the Last Supper and the Tomb of David, on Mount
Zion. In signing the General Armistice Agreement, Israel thus
undertook, as did Jordan, to guarantee freedom of access to the Holy
Places. The Court considers that this undertaking by Israel has remained valid for the
Holy Places which came under its control in 1967. This undertaking has
further been confirmed by Article 9, paragraph 1, of the 1994 Peace
Treaty between Israel and Jordan, by virtue of which, in more general terms,
“Each party will provide freedom of access to places of religious and
historical significance.”
130. As regards the International Covenant on Economic, Social and Cultural
Rights, that instrument includes a number of relevant provisions,
namely: the right to work (Articles 6 and 7); protection and
assistance accorded to the family and to children and young persons
(Article 10); the right to an adequate standard of living,
including adequate food, clothing and housing, and the right “to be free from
hunger” (Art. 11); the right to health (Art. 12); the
right to education (Arts. 13 and 14).
131. Lastly, the United Nations Convention on the Rights of the Child of
20 November 1989 includes similar provisions in Articles 16,
24, 27 and 28. * 132. From the
information submitted to the Court, particularly the report of the Secretary‑General,
it appears that the construction of the wall has led to the destruction or
requisition of properties under conditions which contravene the requirements
of Articles 46 and 52 of the Hague Regulations of 1907 and of
Article 53 of the Fourth Geneva Convention.
133. That construction, the establishment of a closed area between the Green
Line and the wall itself and the creation of enclaves have moreover imposed
substantial restrictions on the freedom of movement of the inhabitants of the
Occupied Palestinian Territory (with the exception of Israeli citizens and
those assimilated thereto). Such restrictions are most marked in urban
areas, such as the Qalqiliya enclave or the City of Jerusalem and its
suburbs. They are aggravated by the fact that the access gates are few
in number in certain sectors and opening hours appear to be restricted and
unpredictably applied. For example, according to the Special Rapporteur
of the Commission on Human Rights on the situation of human rights in the
Palestinian territories occupied by Israel since 1967, “Qalqiliya, a city
with a population of 40,000, is completely surrounded by the Wall and
residents can only enter and leave through a single military checkpoint open
from 7 a.m. to 7 p.m.” (Report of the Special Rapporteur of
the Commission on Human Rights, John Dugard, on the situation of human rights
in the Palestinian territories occupied by Israel since 1967, submitted in
accordance with Commission resolution 1993/2 A and entitled
“Question of the Violation of Human Rights in the Occupied Arab Territories,
including Palestine”, E/CN.4/2004/6, 8 September 2003,
para. 9.) There have also
been serious repercussions for agricultural production, as is attested by a
number of sources. According to the Special Committee to Investigate
Israeli Practices Affecting the Human Rights of the Palestinian People and
Other Arabs of the Occupied Territories “an
estimated 100,000 dunums [approximately 10,000 hectares] of the
West Bank’s most fertile agricultural land, confiscated by the Israeli
Occupation Forces, have been destroyed during the first phase of the wall
construction, which involves the disappearance of vast amounts of property,
notably private agricultural land and olive trees, wells, citrus grows and
hothouses upon which tens of thousands of Palestinians rely for their
survival” (Report of the Special Committee to Investigate Israeli Practices
Affecting the Human Rights of the Palestinian People and Other Arabs of the
Occupied Territories, A/58/311, 22 August 2003,
para. 26). Further, the Special Rapporteur on the situation of human rights in
the Palestinian territories occupied by Israel since 1967 states that “Much
of the Palestinian land on the Israeli side of the Wall consists of fertile
agricultural land and some of the most important water wells in the region”
and adds that “Many fruit and olive trees had been destroyed in the course of
building the barrier.” (E/CN.4/2004/6, 8 September 2003,
para. 9.) The Special Rapporteur on the Right to Food of the
United Nations Commission on Human Rights states that construction of the
wall “cuts off Palestinians from their agricultural lands, wells and means of
subsistence” (Report by the Special Rapporteur of the United Nations
Commission on Human Rights, Jean Ziegler, “The Right to Food”, Addendum,
Mission to the Occupied Palestinian Territories, E/CN.4/2004/10/Add.2,
31 October 2003, para. 49). In a recent survey conducted
by the World Food Programme, it is stated that the situation has aggravated
food insecurity in the region, which reportedly numbers 25,000 new
beneficiaries of food aid (report of the Secretary‑General,
para. 25). It has further
led to increasing difficulties for the population concerned regarding access
to health services, educational establishments and primary sources of
water. This is also attested by a number of different information
sources. Thus the report of the Secretary‑General states
generally that “According to the Palestinian Central Bureau of Statistics, so
far the Barrier has separated 30 localities from health services, 22
from schools, 8 from primary water sources and 3 from electricity
networks.” (Report of the Secretary‑General,
para. 23.) The Special Rapporteur of the United Nations Commission
on Human Rights on the situation of human rights in the Palestinian
territories occupied by Israel since 1967 states that “Palestinians between
the Wall and Green Line will effectively be cut off from their land and
workplaces, schools, health clinics and other social services.”
(E/CN.4/2004/6, 8 September 2003, para. 9.) In relation
specifically to water resources, the Special Rapporteur on the Right to Food
of the United Nations Commission on Human Rights observes that “By
constructing the fence Israel will also effectively annex most of the western
aquifer system (which provides 51 per cent of the West Bank’s water
resources).” (E/CN.4/2004/10/Add.2, 31 October 2003, para. 51.)
Similarly, in regard to access to health services, it has been stated that,
as a result of the enclosure of Qalqiliya, a United Nations hospital in that
town has recorded a 40 per cent decrease in its caseload (report of
the Secretary‑General, para. 24). At Qalqiliya,
according to reports furnished to the United Nations, some 600 shops or
businesses have shut down, and 6,000 to 8,000 people have already left
the region (E/CN.4/2004/6, 8 September 2003, para. 10;
E/CN.4/2004/10/Add.2, 31 October 2003, para. 51). The
Special Rapporteur on the Right to Food of the United Nations Commission on
Human Rights has also observed that “With the fence/wall cutting communities
off from their land and water without other means of subsistence, many of the Palestinians living in these areas
will be forced to leave.” (E/CN.4/2004/10/Add.2,
31 October 2003, para. 51.) In this respect also the
construction of the wall would effectively deprive a significant number of
Palestinians of the “freedom to choose [their] residence”. In addition,
however, in the view of the Court, since a significant number of Palestinians
have already been compelled by the construction of the wall and its
associated régime to depart from certain areas, a process that will continue
as more of the wall is built, that construction, coupled with the
establishment of the Israeli settlements mentioned in paragraph 120
above, is tending to alter the demographic composition of the Occupied
Palestinian Territory.
134. To sum up, the Court is of the opinion that the construction of the wall
and its associated régime impede the liberty of movement of the inhabitants
of the Occupied Palestinian Territory (with the exception of Israeli citizens
and those assimilated thereto) as guaranteed under Article 12,
paragraph 1, of the International Covenant on Civil and Political
Rights. They also impede the exercise by the persons concerned of the
right to work, to health, to education and to an adequate standard of living
as proclaimed in the International Covenant on Economic, Social and Cultural
Rights and in the United Nations Convention on the Rights of the Child.
Lastly, the construction of the wall and its associated régime, by
contributing to the demographic changes referred to in paragraphs 122
and 133 above, contravene Article 49, paragraph 6, of the Fourth
Geneva Convention and the Security Council resolutions cited in
paragraph 120 above.
135. The Court would observe, however, that the applicable international humanitarian
law contains provisions enabling account to be taken of military exigencies
in certain circumstances. Neither
Article 46 of the Hague Regulations of 1907 nor Article 47 of the
Fourth Geneva Convention contain any qualifying provision of this type.
With regard to forcible transfers of population and deportations, which are
prohibited under Article 49, paragraph 1, of the Convention,
paragraph 2 of that Article provides for an exception in those cases in
which “the security of the population or imperative military reasons so
demand”. This exception however does not apply to paragraph 6 of
that Article, which prohibits the occupying Power from deporting or
transferring parts of its own civilian population into the territories it
occupies. As to Article 53 concerning the destruction of personal
property, it provides for an exception “where such destruction is rendered
absolutely necessary by military operations”. The Court
considers that the military exigencies contemplated by these texts may be
invoked in occupied territories even after the general close of the military
operations that led to their occupation. However, on the material
before it, the Court is not convinced that the destructions carried out
contrary to the prohibition in Article 53 of the Fourth Geneva
Convention were rendered absolutely necessary by military operations.
136. The Court would further observe that some human rights conventions, and
in particular the International Covenant on Civil and Political Rights,
contain provisions which States parties may invoke in order to derogate,
under various conditions, from certain of their conventional
obligations. In this respect, the Court would however recall that the
communication notified by Israel to the
Secretary‑General of the United Nations under Article 4 of the
International Covenant on Civil and Political Rights concerns only
Article 9 of the Covenant, relating to the right to freedom and security
of person (see paragraph 127 above); Israel is accordingly bound to
respect all the other provisions of that instrument. The Court would
note, moreover, that certain provisions of human rights conventions contain
clauses qualifying the rights covered by those provisions. There is no
clause of this kind in Article 17 of the International Covenant on Civil
and Political Rights. On the other hand, Article 12,
paragraph 3, of that instrument provides that restrictions on liberty of
movement as guaranteed under that Article “shall not be subject to any
restrictions except those which are provided by law, are necessary to protect
national security, public order (ordre public), public health or
morals or the rights and freedoms of others, and are consistent with the
other rights recognized in the present Covenant”. As for the
International Covenant on Economic, Social and Cultural Rights, Article 4
thereof contains a general provision as follows:
“The States Parties to the present Covenant recognize that, in the enjoyment
of those rights provided by the State in conformity with the present
Covenant, the State may subject such rights only to such limitations as are
determined by law only in so far as this may be compatible with the nature of
these rights and solely for the purpose of promoting the general welfare in a
democratic society.” The Court would
observe that the restrictions provided for under Article 12,
paragraph 3, of the International Covenant on Civil and Political Rights
are, by the very terms of that provision, exceptions to the right of freedom
of movement contained in paragraph 1. In addition, it is not
sufficient that such restrictions be directed to the ends authorized;
they must also be necessary for the attainment of those ends. As the
Human Rights Committee put it, they “must conform to the principle of
proportionality” and “must be the least intrusive instrument amongst those
which might achieve the desired result” (CCPR/C/21/Rev.1/Add.9, General
Comment No. 27, para. 14). On the basis of the information
available to it, the Court finds that these conditions are not met in the
present instance. The Court would
further observe that the restrictions on the enjoyment by the Palestinians
living in the territory occupied by Israel of their economic, social and
cultural rights, resulting from Israel’s construction of the wall, fail to
meet a condition laid down by Article 4 of the International Covenant on
Economic, Social and Cultural Rights, that is to say that their
implementation must be “solely for the purpose of promoting the general
welfare in a democratic society”.
137. To sum up, the Court, from the material available to it, is not
convinced that the specific course Israel has chosen for the wall was
necessary to attain its security objectives. The wall, along the route
chosen, and its associated régime gravely infringe a number of rights of
Palestinians residing in the territory occupied by Israel, and the
infringements resulting from that route cannot be justified by military exigencies
or by the requirements of national security or public order. The
construction of such a wall accordingly constitutes breaches by Israel of
various of its obligations under the applicable international humanitarian
law and human rights instruments. *
138. The Court has thus concluded that the
construction of the wall constitutes action not in conformity with various
international legal obligations incumbent upon Israel. However,
Annex I to the report of the Secretary‑General states that,
according to Israel: “the construction of the Barrier is consistent
with Article 51 of the Charter of the United Nations, its inherent right
to self‑defence and Security Council resolutions 1368 (2001)
and 1373 (2001)”. More specifically, Israel’s Permanent Representative
to the United Nations asserted in the General Assembly on
20 October 2003 that “the fence is a measure wholly consistent with
the right of States to self‑defence enshrined in Article 51 of the
Charter”; the Security Council resolutions referred to, he continued,
“have clearly recognized the right of States to use force in self‑defence
against terrorist attacks”, and therefore surely recognize the right to use
non‑forcible measures to that end (A/ES‑10/PV.21, p. 6).
139. Under the terms of Article 51 of the Charter of the United Nations:
“Nothing in the present Charter shall impair the inherent right of individual
or collective self‑defence if an armed attack occurs against a Member
of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security.” Article 51
of the Charter thus recognizes the existence of an inherent right of self‑defence
in the case of armed attack by one State against another State. However,
Israel does not claim that the attacks against it are imputable to a foreign
State. The Court also
notes that Israel exercises control in the Occupied Palestinian Territory and
that, as Israel itself states, the threat which it regards as justifying the
construction of the wall originates within, and not outside, that
territory. The situation is thus different from that contemplated by
Security Council resolutions 1368 (2001) and 1373 (2001), and
therefore Israel could not in any event invoke those resolutions in support
of its claim to be exercising a right of self‑defence. Consequently,
the Court concludes that Article 51 of the Charter has no relevance in
this case.
140. The Court has, however, considered whether Israel could rely on a state
of necessity which would preclude the wrongfulness of the construction of the
wall. In this regard the Court is bound to note that some of the
conventions at issue in the present instance include qualifying clauses of
the rights guaranteed or provisions for derogation (see paragraphs 135
and 136 above). Since those treaties already address considerations of
this kind within their own provisions, it might be asked whether a state of
necessity as recognized in customary international law could be invoked with
regard to those treaties as a ground for precluding the wrongfulness of the
measures or decisions being challenged. However, the Court will not
need to consider that question. As the Court observed in the case
concerning the Gabčíkovo‑Nagymaros
Project (Hungary/Slovakia), “the state of
necessity is a ground recognized by customary international law” that “can
only be accepted on an exceptional basis”; it “can only be invoked under
certain strictly defined conditions which must be cumulatively satisfied; and
the State concerned is not the sole judge of whether those conditions have
been met” (I.C.J. Reports 1997, p. 40, para. 51). One
of those conditions was stated by
the Court in terms used by the International Law Commission, in a text which
in its present form requires that the act being challenged be “the only way
for the State to safeguard an essential interest against a grave and imminent
peril” (Article 25 of the International Law Commission’s Articles on
Responsibility of States for Internationally Wrongful Acts; see also
former Article 33 of the Draft Articles on the International
Responsibility of States, with slightly different wording in the English
text). In the light of the material before it, the Court is not convinced
that the construction of the wall along the route chosen was the only means
to safeguard the interests of Israel against the peril which it has invoked
as justification for that construction.
141. The fact remains that Israel has to face numerous indiscriminate and
deadly acts of violence against its civilian population. It has the
right, and indeed the duty, to respond in order to protect the life of its
citizens. The measures taken are bound nonetheless to remain in
conformity with applicable international law.
142. In conclusion, the Court considers that Israel cannot rely on a right of
self‑defence or on a state of necessity in order to preclude the
wrongfulness of the construction of the wall resulting from the
considerations mentioned in paragraphs 122 and 137 above. The
Court accordingly finds that the construction of the wall, and its associated
régime, are contrary to international law. * *
*
143. The Court having concluded that, by the construction of the wall in the
Occupied Palestinian Territory, including in and around East Jerusalem, and
by adopting its associated régime, Israel has violated various international
obligations incumbent upon it (see paragraphs 114‑137 above), it
must now, in order to reply to the question posed by the General Assembly,
examine the consequences of those violations. *
*
144. In their written and oral observations, many participants in the
proceedings before the Court contended that Israel’s action in illegally
constructing this wall has legal consequences not only for Israel itself, but
also for other States and for the United Nations; in its Written
Statement, Israel, for its part, presented no arguments regarding the
possible legal consequences of the construction of the wall.
145. As regards the legal consequences for Israel,
it was contended that Israel has, first, a legal obligation to bring the
illegal situation to an end by ceasing forthwith the construction of the wall
in the Occupied Palestinian Territory, and to give appropriate assurances and
guarantees of non‑repetition. It was argued
that, secondly, Israel is under a legal obligation to make reparation for the
damage arising from its unlawful conduct. It was submitted that such
reparation should first of all take the form of restitution, namely
demolition of those portions of the wall constructed in the Occupied
Palestinian Territory and annulment of the legal acts associated with its
construction and the restoration of property requisitioned or expropriated
for that purpose; reparation should also include appropriate
compensation for individuals whose homes or agricultural holdings have been
destroyed. It was further
contended that Israel is under a continuing duty to comply with all of the
international obligations violated by it as a result of the construction of
the wall in the Occupied Palestinian Territory and of the associated
régime. It was also argued that, under the terms of the Fourth Geneva
Convention, Israel is under an obligation to search for and bring before its
courts persons alleged to have committed, or to have ordered to be committed,
grave breaches of international humanitarian law flowing from the planning,
construction and use of the wall.
146. As regards the legal consequences for States other than Israel, it was
contended before the Court that all States are under an obligation not to
recognize the illegal situation arising from the construction of the wall,
not to render aid or assistance in maintaining that situation and to co‑operate
with a view to putting an end to the alleged violations and to ensuring that
reparation will be made therefor. Certain
participants in the proceedings further contended that the States parties to
the Fourth Geneva Convention are obliged to take measures to ensure
compliance with the Convention and that, inasmuch as the construction and
maintenance of the wall in the Occupied Palestinian Territory constitutes
grave breaches of that Convention, the States parties to that Convention are
under an obligation to prosecute or extradite the authors of such
breaches. It was further observed that “the United Nations Security
Council should consider flagrant and systematic violation of international
law norm[s] and principles by Israel, particularly . . .
international humanitarian law, and take all necessary measures to put an end
[to] these violations”, and that the Security Council and the General
Assembly must take due account of the advisory opinion to be given by the
Court. *
*
147. Since the Court has concluded that the construction of the wall in the
Occupied Palestinian Territory, including in and around East Jerusalem, and
its associated régime, are contrary to various of Israel’s international
obligations, it follows that the responsibility of that State is engaged
under international law.
148. The Court will now examine the legal
consequences resulting from the violations of international law by Israel by distinguishing
between, on the one hand, those arising for Israel and, on the other, those
arising for other States and, where appropriate, for the United
Nations. The Court will begin by examining the legal consequences of
those violations for Israel. *
149. The Court notes that Israel is first obliged to comply with the
international obligations it has breached by the construction of the wall in
the Occupied Palestinian Territory (see paragraphs 114‑137
above). Consequently, Israel is bound to comply with its obligation to
respect the right of the Palestinian people to self‑determination and
its obligations under international humanitarian law and international human
rights law. Furthermore, it must ensure freedom of access to the Holy
Places that came under its control following the 1967 War (see
paragraph 129 above).
150. The Court observes that Israel also has an obligation to put an end to
the violation of its international obligations flowing from the construction
of the wall in the Occupied Palestinian Territory. The obligation of a
State responsible for an internationally wrongful act to put an end to that
act is well established in general international law, and the Court has on a
number of occasions confirmed the existence of that obligation (Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986,
p. 149; United States Diplomatic and Consular Staff in Tehran,
Judgment, I.C.J. Reports 1980, p. 44, para. 95; Haya de
la Torre, Judgment, I.C.J. Reports 1951, p. 82).
151. Israel accordingly has the obligation to cease
forthwith the works of construction of the wall being built by it in the
Occupied Palestinian Territory, including in and around
East Jerusalem. Moreover, in view of the Court’s finding (see
paragraph 143 above) that Israel’s violations of its international
obligations stem from the construction of the wall and from its associated
régime, cessation of those violations entails the dismantling forthwith of
those parts of that structure situated within the Occupied Palestinian
Territory, including in and around East Jerusalem. All legislative and
regulatory acts adopted with a view to its construction, and to the establishment
of its associated régime, must forthwith be repealed or rendered ineffective,
except in so far as such acts, by providing for compensation or other forms
of reparation for the Palestinian population, may continue to be relevant for
compliance by Israel with the obligations referred to in paragraph 153
below.
152. Moreover, given that the construction of the wall in the Occupied
Palestinian Territory has, inter alia, entailed the requisition and
destruction of homes, businesses and agricultural holdings, the Court finds
further that Israel has the obligation to make reparation for the damage
caused to all the natural or legal persons concerned. The Court would
recall that the essential forms of reparation in customary law were laid down
by the Permanent Court of International Justice in the following terms:
“The essential principle contained in the actual
notion of an illegal act -
a principle which seems to be established by international practice and in
particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe out all the
consequences of the illegal act and reestablish the situation which would, in
all probability, have existed if that act had not been committed.
Restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear; the
award, if need be, of damages for loss sustained which would not be covered
by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of
compensation due for an act contrary to international law.” (Factory
at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A,
No. 17, p. 47.)
153. Israel is accordingly under an obligation to return the land, orchards,
olive groves and other immovable property seized from any natural or legal
person for purposes of construction of the wall in the Occupied Palestinian
Territory. In the event that such restitution should prove to be materially
impossible, Israel has an obligation to compensate the persons in question
for the damage suffered. The Court considers that Israel also has an
obligation to compensate, in accordance with the applicable rules of
international law, all natural or legal persons having suffered any
form of material damage as a result of the wall’s construction. *
154. The Court will now consider the legal consequences of the
internationally wrongful acts flowing from Israel’s construction of the wall
as regards other States.
155. The Court would observe that the obligations violated by Israel include
certain obligations erga omnes. As the Court indicated in the Barcelona
Traction case, such obligations are by their very nature “the concern of
all States” and, “In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection.” (Barcelona
Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J.
Reports 1970, p. 32, para. 33.) The obligations erga
omnes violated by Israel are the obligation to respect the right of the
Palestinian people to self‑determination, and certain of its
obligations under international humanitarian law.
156. As regards the first of these, the Court has already observed
(paragraph 88 above) that in the East Timor case, it described as
“irreproachable” the assertion that “the right of peoples to self‑determination,
as it evolved from the Charter and from United Nations practice, has an erga
omnes character” (I.C.J. Reports 1995, p. 102,
para. 29). The Court would also recall that under the terms of
General Assembly resolution 2625 (XXV), already mentioned above (see
paragraph 88),
“Every State has the duty to promote, through joint
and separate action, realization of the principle of equal rights and self‑determination
of peoples, in accordance with the provisions of the Charter, and to render
assistance to the United Nations in carrying out the responsibilities
entrusted to it by the Charter regarding the implementation of the
principle . . .”
157. With regard to international humanitarian law, the Court recalls that in
its Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, it stated that “a great many rules of humanitarian law
applicable in armed conflict are so fundamental to the respect of the human
person and ‘elementary considerations of humanity’ . . .”,
that they are “to be observed by all States whether or not they have ratified
the conventions that contain them, because they constitute intransgressible
principles of international customary law” (I.C.J. Reports 1996 (I),
p. 257, para. 79). In the Court’s view, these rules
incorporate obligations which are essentially of an erga omnes
character.
158. The Court would also emphasize that Article 1 of the Fourth Geneva
Convention, a provision common to the four Geneva Conventions, provides that
“The High Contracting Parties undertake to respect and to ensure respect for
the present Convention in all circumstances.” It follows from that
provision that every State party to that Convention, whether or not it is a
party to a specific conflict, is under an obligation to ensure that the
requirements of the instruments in question are complied with.
159. Given the character and the importance of the rights and obligations
involved, the Court is of the view that all States are under an
obligation not to recognize the illegal situation resulting from the
construction of the wall in the Occupied Palestinian Territory, including in
and around East Jerusalem. They are also under an obligation not to
render aid or assistance in maintaining the situation created by such
construction. It is also for all States, while respecting the United
Nations Charter and international law, to see to it that any impediment,
resulting from the construction of the wall, to the exercise by the
Palestinian people of its right to self‑determination is brought to an
end. In addition, all the States parties to the Geneva Convention
relative to the Protection of Civilian Persons in Time of War of
12 August 1949 are under an obligation, while respecting the United
Nations Charter and international law, to ensure compliance by Israel with
international humanitarian law as embodied in that Convention.
160. Finally, the Court is of the view that the United Nations, and
especially the General Assembly and the Security Council, should consider
what further action is required to bring to an end the illegal situation resulting
from the construction of the wall and the associated régime, taking due
account of the present Advisory Opinion. * *
*
161. The Court, being concerned to lend its support
to the purposes and principles laid down in the United Nations Charter, in
particular the maintenance of international peace and security and the
peaceful settlement of disputes, would emphasize the urgent necessity for the
United Nations as a whole to redouble its efforts to bring the Israeli‑Palestinian
conflict, which continues to pose a threat to international peace and
security, to a speedy conclusion, thereby establishing a just and lasting
peace in the region.
162. The Court has reached the conclusion that the construction of the wall
by Israel in the Occupied Palestinian Territory is contrary to international
law and has stated the legal consequences that are to be drawn from that
illegality. The Court considers itself bound to add that this
construction must be placed in a more general context. Since 1947, the
year when General Assembly resolution 181 (II) was adopted and the
Mandate for Palestine was terminated, there has been a succession of armed
conflicts, acts of indiscriminate violence and repressive measures on the
former mandated territory. The Court would emphasize that both Israel
and Palestine are under an obligation scrupulously to observe the rules of
international humanitarian law, one of the paramount purposes of which is to
protect civilian life. Illegal actions and unilateral decisions have
been taken on all sides, whereas, in the Court’s view, this tragic situation
can be brought to an end only through implementation in good faith of all
relevant Security Council resolutions, in particular
resolutions 242 (1967) and 338 (1973). The “Roadmap”
approved by Security Council resolution 1515 (2003) represents the
most recent of efforts to initiate negotiations to this end. The Court
considers that it has a duty to draw the attention of the General Assembly,
to which the present Opinion is addressed, to the need for these efforts to
be encouraged with a view to achieving as soon as possible, on the basis of
international law, a negotiated solution to the outstanding problems and the
establishment of a Palestinian State, existing side by side with Israel and
its other neighbours, with peace and security for all in the region. * *
*
163. For these reasons, The Court,
(1) Unanimously, Finds
that it has jurisdiction to give the advisory opinion requested;
(2) By fourteen votes to one, Decides
to comply with the request for an advisory opinion; in favour:
President Shi; Vice‑President
Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren,
Kooijmans, Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka;
against: Judge
Buergenthal;
(3) Replies in the
following manner to the question put by the General Assembly: A. By fourteen
votes to one, The construction of the wall being built by Israel,
the occupying Power, in the Occupied Palestinian Territory, including in and
around East Jerusalem, and its associated régime, are contrary to
international law; in favour: President Shi; Vice‑President Ranjeva; Judges
Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans,
Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka; against: Judge
Buergenthal; B. By fourteen
votes to one, Israel is under
an obligation to terminate its breaches of international law; it is
under an obligation to cease forthwith the works of construction of the wall
being built in the Occupied Palestinian Territory, including in and around
East Jerusalem, to dismantle forthwith the structure therein situated, and to
repeal or render ineffective forthwith all legislative and regulatory acts
relating thereto, in accordance with paragraph 151 of this Opinion; in favour: President
Shi; Vice‑President Ranjeva; Judges
Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans,
Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka; against: Judge
Buergenthal; C. By fourteen
votes to one, Israel is under
an obligation to make reparation for all damage caused by the construction of
the wall in the Occupied Palestinian Territory, including in and around East
Jerusalem; in favour: President
Shi; Vice‑President Ranjeva; Judges
Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans,
Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka; against: Judge
Buergenthal; D. By thirteen
votes to two, All States are
under an obligation not to recognize the illegal situation resulting from the
construction of the wall and not to render aid or assistance in maintaining the
situation created by such construction; all States parties to the
Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in
addition the obligation, while respecting the United Nations Charter and
international law, to ensure compliance by Israel with international
humanitarian law as embodied in that Convention; in favour: President
Shi; Vice‑President Ranjeva; Judges
Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Rezek, Al‑Khasawneh,
Elaraby, Owada, Simma, Tomka; against: Judges
Kooijmans, Buergenthal; E. By fourteen
votes to one, The United
Nations, and especially the General Assembly and the Security Council, should
consider what further action is required to bring to an end the illegal
situation resulting from the construction of the wall and the associated
régime, taking due account of the present Advisory Opinion. in favour: President
Shi; Vice‑President Ranjeva; Judges
Guillaume, Koroma, Vereshchetin, Higgins, Parra‑Aranguren, Kooijmans,
Rezek, Al‑Khasawneh, Elaraby, Owada, Simma, Tomka; against: Judge
Buergenthal.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this ninth day of July, two thousand and four,
in two copies, one of which will be placed in the archives of the Court and
the other transmitted to the Secretary‑General of the United Nations.
(Signed) Shi Jiuyong,
President.
(Signed) Philippe Couvreur,
Registrar.
Judges Koroma, Higgins, Kooijmans and
Al‑Khasawneh append
separate opinions to the Advisory Opinion of the Court; Judge Buergenthal appends a declaration to
the Advisory Opinion of the Court; Judges Elaraby and Owada
append separate opinions to the Advisory Opinion of the Court.
(Initialled) J.Y.S.
(Initialled) Ph.C. ___________ |