ICJ Case – Advisory Opinion on the Wall (Security Barrier)

• Introduction
• Israel Seeks Dismissal and Declines to Participate in the Case
• Involvement of Other States and International Organizations
• Consideration and Conclusions of the Court, and of Individual Judges
• Main Points in the Court’s Ruling
• Criticism of the Court’s Ruling
• Contrasting Rulings by the Israel Supreme Court
• Additional Resources
• The Case on the ICJ Website

The UN General Assembly on 8 Dec 2003, meeting in special session, adopted Resolution ES-10/14, requesting an advisory opinion from the ICJ on the “legal consequences” of Israel’s building a security barrier in Judea and Samaria.  The security barrier (most of which is a fence, not a “wall”, as characterized by the Court and the General Assembly) was constructed in response to repeated terror attacks by infiltrators from Judea and Samaria, resulting in multiple deaths and injuries to the civilian population of Israel, during the Arab uprising colloquially known as the Second or Al Aqsa Intifada. 

• 8 Dec 2003 – UNGA Request for Advisory Opinion     English     French

Israel Seeks Dismissal and Declines to Participate in the Case

On 31 Dec 2003, and again on 15 Jan 2004, Israel submitted to the Court a request that J. Elaraby be disqualified from participating in the proceeding.  Israel contended that Judge Elaraby, both in his previous professional capacity and in his statements of opinion, had been actively engaged in opposition to Israel, including matters that went directly to aspects of the question before the Court.  Nevertheless, by order issued on 30 Jan 2004, Israel’s application seeking disqualification of J. Elaraby was rejected.

• Order Rejecting Request by Israel to Disqualify J. Elaraby from Sitting on the Panel of Judges      English    French
• Dissent by J. Buergenthal      English    French

On 30 Jan 2004, Israel transmitted a detailed statement setting forth its objections to the jurisdiction of the Court and the legal impropriety of the Court responding to the request.  Israel did not consent to the hearing of the referral before the ICC and did not participate in the proceedings beyond its objection to the Court’s jurisdiction.  Israel’s position was and remains, that the issue with which the Advisory Opinion dealt was not appropriate for consideration by an international legal forum.  These are the main points raised by Israel in its written submission to the Court:

• Objections to Jurisdiction
  1. The request for an advisory opinion is ultra vires – not within the competence of the Special Session of the General Assembly
  2. The request does not raise a legal question under the UN Charter or ICJ Statute
• Propriety and Exercise of Discretion
  1. The request concerns a contentious matter for which Israel has not consented to jurisdiction
  2. The question requires speculation about essential facts and assumptions of law
  3. Principles of equity require the Court to decline to render an opinion
  4. A judicial proceeding would undermine the then-ongoing diplomatic initiative

Involvement of Other States and International Organizations

Four organizations and forty-five states submitted written statements in the proceeding.  

The submissions are available in the table below and on the ICJ Website.

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Consideration and Conclusions of the Court, and of Individual Judges

Oral hearings were held before the Court from 23 to 25 Feb 2004 (ICJ website).

• Verbatim Record – English with French Translation
  • 23 Feb 2004 – morning sitting
  • 23 Feb 2004 – afternoon sitting
  • 24 Feb 2004 – morning sitting
  • 24 Feb 2004 – afternoon sitting
  • 25 Feb 2004 – final sitting

The Court issued its determination on 9 July 2004.

• Summary of the Court’s Opinion     English     French
• Opinion of the Court      English    French
  • Separate Opinion of J. Al-Khasawneh      English    French
  • Declaration of J. Buergenthal     English     French
  • Separate Opinion of J. Elaraby      English     French
  • Separate Opinion of J. Higgins      English     French
  • Separate Opinion of J. Kooijmans      English     French
  • Separate Opinion of J. Koroma     English     French
  • Separate Opinion of J. Owada    English      French

• The Court accepts jurisdiction over the case, as it involved only a dispute between Israel and the UN, rather than between Israel and the Palestinians or another party. [¶¶ 24-42]
• Propriety and exercise of discretion. [¶¶ 43-65]
  1. The Court will not, in the exercise of discretion, decline to render an opinion on the ground that the case involves a contentious matter to which Israel has not consented to jurisdiction. [¶¶ 46-50]
  2. The Court rejects the argument that an advisory opinion could impede a political solution to the Palestinian-Israeli conflict. [¶¶ 51-54]
  3. The Court concludes that it has sufficient evidence to issue a ruling. [¶¶ 55-58]
  4. The Court cannot decline to issue an opinion on the ground that it would lack a useful purpose. [¶¶ 59-62]
  5. The Court does not consider the claim of lack of good faith and clean hands on the part of the Palestinians to be pertinent, as the request was raised by the General Assembly and not any other party. [¶¶ 63-64]
• The Court decides to use the term “wall” as opposed to “fence” or “barrier”. [¶ 67]
• The Court’s determination on whether or not the wall breaches international law. [¶ 68-137]
  1. The Court concludes that Judea and Samaria, including “East Jerusalem” are occupied territories and Israel is the occupying power. [¶¶ 70-78]
  2. The Court bases its characterization of the security barrier on reports from the Secretary-General. [¶¶ 79-85]
  3. The Court sets forth what it considers to be the applicable rules and principles of international law. [¶¶ 86-113]
  4. The Court assesses whether or not there has been a violation of those rules and principles. [¶¶ 114-85]
  5. The Court concludes the Israeli settlements in Judea, Samaria, and east Jerusalem are in breach of international law. [¶ 120]
  6. The Court rules that the construction of the security barrier is a breach of Israel’s obligations. [¶¶ 121-122]
  7. The Court rules that the construction of the security barrier breaches various international humanitarian law and human rights instruments. [¶¶ 123-137]
• The Court concludes that the inherent right of self-defense enshrined in Article 51 of the UN Charter has no relevance to the situation in Judea and Samaria, since Israel has not been attacked by a foreign state. [¶¶ 138-139]
• The Court rules that Israel cannot rely on a state of necessity in order to preclude the wrongfulness of the construction of the security barrier and finds that the construction is contrary to international law. [¶¶ 140-142]
• The Court examines the consequences of what it has ruled to be violations by Israel. [¶¶ 143-160]
• The Court’s concluding remarks. [¶¶ 161-162]
• Vote tally of the judges of the Court [¶ 163]

Judge Buergenthal’s dissent:

• The Court should have exercised its discretion and declined to render the requested advisory opinion.
  • The Court did not have before it the requisite factual bases for its sweeping findings.
• The nature of the cross-Green Line terror attacks and their impact on Israel and its population were never seriously examined by the Court.
• The Court’s formalistic approach to the right of self-defense enables it to avoid addressing the very issues that are at the heart of this case.
  • The UN Charter, in affirming the inherent right of self-defense, does not make its exercise dependent upon an armed attack by another State.
  • The Security Council resolutions cited by the Court made clear that “international terrorism constitutes a threat to international peace and security”
    while “reaffirming the inherent right of individual or collective self-defense as recognized by the Charter.
  • The Security Council did not limit the application of those resolutions to terrorist attacks by State actors only, nor was an assumption to that effect implicit in those resolutions.
  • It is irrelevant that Israel is alleged to exercise control in the “Occupied Palestinian Territory” or that the attacks do not originate from outside the territory. 
  • Attacks on Israel coming from across the Green Line must therefore permit Israel to exercise its right of self-defense against such attacks.
• The Court’s finding that the wall violates international humanitarian law and international human rights law fails to address any facts or evidence specifically rebutting Israel’s claim of military exigencies or requirements of national security.
• Once the Court recognized that Israel’s consent to these proceedings was not necessary since the case was not bought against it and Israel was not a party to it, Israel had no legal obligation to participate in the proceedings or to adduce evidence supporting its claim regarding the legality of the wall.
  • The Court may therefore not draw any adverse evidentiary conclusions from Israel’s failure to supply it or assume, without itself fully enquiring into the matter, that the information and evidence before it is sufficient to support each and every one of its sweeping legal conclusions.

Judge Kooijmans dissent:

• The Court’s ruling in subparagraph 163(3)(D) that 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 was not a necessary finding under the terms of the General Assembly’s request.
• The Court’s view was not requested about the legal consequences of a decision taken by a political organ of the United Nations but of an act committed by a member state.
• The Court’s conclusions are rather weak: it is difficult to envisage what states are expected to do or not in actual practice. 

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Criticism of the Court’s Ruling

International law scholars have criticized the Court’s rulings on many points and on many levels. A number of those criticisms are listed here, followed by citations to the legal literature which discuss them in depth.

• Abuse of the Advisory Opinion power.
  • The formulation of the General Assembly’s request was improper and glaringly unbalanced.
  • The transparent motives of its sponsors.
  • The unprecedented number of states urging judicial restraint.
  • The absence of an agreed factual basis for adjudication.
  • The illegitimacy and consequences of judicial intervention in an acute and ongoing conflict in which the Security Council was actively engaged.
  • The objection of Israel, the targeted state, to back-door nonconsensual adjudication of matters impinging on its existence, its territorial rights, and the defense of its
    citizens.
  • Judicial propriety in rendering an “advisory opinion” under the circumstances.
• The fiat ruling on self-defense without explanation or analysis.
• The distorted historical characterization upon which the Court relied.
• The status of the “settlements”
• The presumption that Judea, Samaria, and Gaza are “Occupied Territories” absent any objective legal or historical analysis.
• Flawed findings on International Humanitarian Law and Human Rights Law.

Criticism in the Literature [for other perspectives, see the symposia in Amer. J. of Int’l. Law, vol. 99, no. 1 (2005), and in Isr. L. Rev., vol. 38, nos. 1-2 (2005).]

• Judge Buergenthal’s Declaration
•  Judge Higgins’  Separate Opinion 
• Judge Kooijman’s Separate Opinion
• Gerald M. Adler, Separation Barrier, Closures and Checkpoints in “Occupied Palestinian Territories” and Postscript to the International Court of Justice Decision on the Barrier (Jul. 2004)
• Anne Bayefsky, Had Enough?, Justice, Vol. 40 (Winter 2004)
• Avi Bell interviewed by Al Jazeera, (9 Jul 2019) (YouTube)
• Karin Calvo-Goller, More than a Huge Imbalance: The ICJ’s Advisory Opinion on the Legal Consequences of the Construction of the Barrier, Isr. L. Rev. vol. 38, p. 165 (Jul. 2005)
• Moshe Hirsch, The Legal Status of Jerusalem Following the ICJ Advisory Opinion on the Separation Barrier, Isr. L. Rev. vol. 38, p. 298 (Jul. 2005)
• Michael J. Kelly, Critical Analysis of the International Court of Justice Ruling on Israel’s Security Barrier, Fordham Int’l L.J., vol 29, p. 181 (2005).
• Ruth Lapidoth, The Advisory Opinion and the Jewish Settlements, Isr. L. Rev. vol. 38, p. 292 (Jul. 2005)
• Sean D. Murphy, Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ? Amer. J. Int’l. Law, vol. 99, no. 1, p. 62 (Jan. 2005)
• Michla Pomerance, The ICJ’s Advisory Jurisdiction and the Crumbling Wall between the Political and the Judicial, Amer. J. Int’l. Law, vol. 99, no. 1, p. 26 (Jan. 2005)
• Michla Pomerance, A Court of UN Law, 38 Isr. L. Rev., vol. 38, p. 134 (2005)
• Ori Pomson, Climbing the Walls: International Law and the Construction of a Security Barrier Protecting Settlers (Jan. 2013)
• Robbie Sabel, The International Court of Justice Decision on the Separation Barrier and the Green Line, Isr. L. Rev. vol. 38, p. 316 (Jul. 2005)
• Yuval Shany, Head Against the Wall? Israel’s Rejection of the Advisory Opinion, Yearbook of Int’l. Hum. Law , vol. 7 (Dec. 2004)
• Gerald M. Steinberg, The UN, The ICJ and the Separation Barrier: War by Other Means, Isr. L. Rev. vol. 38, p. 331 (Jul. 2005)
• Ruth Wedgewood, The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense, Amer. J. Int’l. Law, vol. 99, no. 1, p. 52 (Jan. 2005)

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Contrasting Rulings by the Israel Supreme Court Regarding the Security Barrier

The Israel Supreme Court has rendered decisions concerning the security barrier in two cases, one issued just days before the ICJ decision, and the other in the following year.  The second case addressed the ICJ ruling.

1. Beit Sourik Village Council v. Government of Israel, HCJ 2056/04, June 30, 2004
   Decision and Ruling of the Court  (Hebrew)  (English translation)  (Abstract) 
2. Mara’abe v. The Prime Minister of Israel, HCJ 7957/04, September 15, 2005
   Decision and Ruling of the Court  (Hebrew)  (English translation)  (Abstract) 

For discussions of the differences between the ICJ ruling and the Israel Supreme Court rulings, in addition to some of the articles listed above which discuss in part the Israeli rulings, see:

• Moshe Cohen-Eliya, The Formal and the Substantive Meanings of Proportionality in the Supreme Court’s Decision Regarding the Security Fence, Isr. L. Rev. vol. 38, p. 262 (Jul. 2005)
• Yehudah Mirsky, Human Rights, Democracy, and the Inescapability of Politics; or, Human Dignity Thick and Thin, Isr. L. Rev. vol. 38, p. 358 (Jul. 2005)
• Yuval Shany, Capacities and Inadequacies: A Look at the Two Separation Barrier Cases, Isr. L. Rev. vol. 38, p. 230 (Jul. 2005)

Additional Resource:

• Congressional Research Service, Israel’s Security Fences, Separating Israel from the Palestinians (1 Aug 2003)