What the Court Advisory Opinion Does and Does Not Say
Posted : July 23, 2004
An Emergency Special Session of the United Nations General Assembly sent the following question to the International Court of Justice (ICJ) for a non-binding advisory opinion:
"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?"
The ICJ answered the request for an advisory opinion on July 9, 2004.
What Does the Advisory Opinion Say?
The non-binding advisory opinion of the International Court of Justice on the "legal consequences arising from the construction of the wall," found that the Israeli security fence violates certain international and humanitarian laws and that Israel must compensate Palestinians who lost land or property as a result of the construction of the fence. The ICJ denounced the route of the security fence, found that construction of the fence on the route was not the only means to safeguard Israelis and that the fence infringes a number of rights of Palestinians. The ICJ stated that those infringements could not be justified on the grounds of national security.
More specifically, the advisory opinion finds that the building of the security fence is illegal because it creates a political precedent for the future border between Israel and the future State of Palestine and states that building the fence constitutes a "de-facto annexation." The ICJ rejected Israel's claim that the fence is temporary. Moreover, the ICJ also fully rejected Israel's argument that the fence was necessary and justified under Israel's right of self-defense, (recognized in the United Nations (UN) charter), finding that Israel cannot claim this right when it is building a wall outside Israel's pre-1967 borders. At the same time, the advisory opinion avoided any direct reference to Palestinian terror.
While the ICJ states quite vaguely that Israel should and is even obligated to protect its citizens from fatal hostile acts, it nonetheless rejects the fence's very construction, because it contravened international law. The ICJ emphasized that the fence infringes on numerous rights of Palestinians in the territories - freedom of movement, freedom of occupation and the right to work, health, education and use of water sources. The court called on Israel to take the fence down, to stop the construction in the region, to restore the lands it confiscated for building the fence, and to pay compensation fees to all those who were damaged by its construction. Moreover, it ruled against the legality of the Israeli settlers on the West Bank, whose status was not relevant to the dispute.
The advisory opinion is remarkable for its totality. It urges the dismantling of the entire fence without trying to deal with the possibility that at least certain sections are necessary for security. The ICJ's opinion rules out building a fence in territory considered occupied by international law, whatever the security or demographic realities.
The ICJ also called on the U.N. General Assembly and Security Council to consider what further action is required to bring an end to the existence of the barrier, which it deemed illegal.
The advisory opinion, however, is of a non-binding declarative nature and is supposed to provide UN institutions with the legal basis for their future acts and guide their debates on the issue. Only the Security Council would be authorized to impose sanctions.
What the Advisory Opinion Does Not Say
The ICJ advisory opinion, troubling in a number of respects, chose not to consider the Israeli Supreme Court's earlier decision even though it had the right and the ability to do so.
Moreover, it dismissed Israel's claim to a right to self-defense under Article 51 of the UN Charter despite numerous terror attacks -- and seemed to even consider the defensive role of the barrier irrelevant. The court said the attacks originate from the West Bank, which Israel controls, so they cannot be considered external attacks against which there is a right of self-defense.
However, since the court objects to the fence primarily because the West Bank is not sovereign Israeli territory, it cannot suddenly decide that the West Bank is part of Israel for the purpose of determining whether Palestinian terror is an internal or external threat.
It avoided any direct reference to Palestinian terror and ignored the fact that Israeli citizens who are killed by suicide bombers are also having a right violated: their fundamental right to life.
MORE: Topics Dealt with in the Advisory Opinion (.pdf format requires Acrobat Reader)