International Court of Justice (ICJ) Ruling on the Israeli Security Barrier ("Wall") -
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Following the outbreak of Palestinian Arab violence in 2002, Israel began construction of a barrier that would separate most of the West Bank (Judea and Samaria) from areas inside Israel. The barrier consists primarily of a chain-link fence and in parts (about 10%) of a wall of prefabricated concrete. The purpose of the fence was to prevent infiltration of terrorists and stop the wave of suicide bombings which took hundreds of lives in Israel. Palestinians insisted that the fence is an "Apartheid Wall" designed to de-facto annex parts of the West Bank to Israel. In fact, the fence encloses about 10% of the land of the West Bank. They took their case to the International Court of Justice. Israel refused to present evidence directly, arguing that the court had no jurisdiction. It presented only an advisory opinion regarding the jurisdiction of the court. Several countries submitted briefs to that effect. The court however, ruled for the Palestinians and they won a ruling that seemingly insists that in principle the fence is illegal as long as any part of it is built beyond the 1967 Green Line.
The ruling was based on several different lines of reasoning.
1- The court ruled that it had jurisdiction over the case, and that it involved only a dispute between Israel and the UN, rather than a dispute between Israel and the Palestinians or another party.
2- The court ruled that provisions of international law regarding right to self defense are inapplicable, since there is no state involved other than Israel:
3. On the other hand, the court ruled that the West Bank is occupied territory, asserting that:
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.
Thus, to achieve its finding, the court held at the same time that there exists an armed conflict, and that territories are occupied territories of another state, but also and at the same time asserted that Israel has no right to defend itself in that conflict, because there is no other state involved.
4. The court asserted that Israel had other ways to defend itself:
State of necessity - Customary international law - Conditions - Construction of the wall not the only means to safeguard Israel's interests against the peril invoked.
However, it did not discuss those other ways. The court did not examine in detail the material relevant to specific violations of rights. It provided some instances of allegations before the court, some of which were untrue. On the other hand, the judgment was based on the sweeping dictum that in principle, any security wall section built in the West Bank would be illegal. Given the assertion that Israel had no right to self defense, it would seem that this judgment would be true according to the court, regardless of the consequences to Palestinians or the security benefit.
Several judges filed dissenting or concurring opinions, that are attached separately:
Dissent of Judge Buergenthal concerning the ICJ Israel Security Fence Ruling
Opinion of Judge Ozawa
Opinion of Judge Higgins
Opinion of Judge Kooijmans
Opinion of Judge El Araby
Opinion of Judge Khawasneh
Opinion of Judge Koroma
The ICJ ruling has not had adverse practical consequences, The US and other countries blocked an Arab sponsored move to bring the matter to the security council. However, the ruling turned European opinion against Israel, especially in Holland, where people resented the fact that Israel is flouting the opinion of the International Court at the Hague, and it has served as a focal point for anti-Israel propaganda. The Israel High Court has ruled that specific portions of the barrier had to be moved in order to spare Palestinian Arab residents inordinate suffering, but it also ruled that the barrier itself does not in principle violate international law. (see Text of Israeli High Court Ruling Regarding the Legality of the Security Fence)
Separation Barrier, Closures and Checkpoints in “Occupied Palestinian Territories” and Postscript to the International Court of Justice Decision on the Barrier
2005: Text of Israeli High Court Ruling Regarding the Legality of the Security Fence.
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INTERNATIONAL COURT OF JUSTICE
9 July 2004
LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL
IN THE OCCUPIED PALESTINIAN TERRITORY
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 [beyond its powers] 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 [No one can take advantage of his own wrongdoing] - 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”.
Description of the wall.
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 [obligations that apply to all states, regardless of jurisdiction]] 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.
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 1967 4 , 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‑10/13 5 ,
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?
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
of Bangladesh: People's Republic of Bangladesh to the Kingdom of the Netherlands;
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,
of Jordan: Permanent Representative of the Hashemite Kingdom of Jordan to the United Nations, New York, Head of Delegation,
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
Islamic Conference: Organization of the Islamic Conference,
Ms Monique Chemillier‑Gendreau, Professor of Public Law, University of Paris VII‑Denis Diderot, as Counsel.
13. When seized 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 seized 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 .
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