The ICJ has issued advisory opinions in the face of objections based on ‘politicization;’(3) that an opinion would be outside the competence of the UN body requesting it;(4) that an opinion would add nothing to existing UNGA or UNSC resolutions on the matter;(5) that an opinion would not be useful;(6) that consent of all parties is required;(7) and that an opinion would prejudice ongoing negotiations.(8) However, the ICJ has never found an obstacle to rendering an advisory opinion, recently reaffirming that: “There has been no refusal, based on the discretionary power of the Court, to act upon a request for an advisory opinion in the history of the present Court.”(9)
Since an opinion on the merits is probable, it remains to examine the possible range of options the Court has before it, and on what issues it is most likely to rule. These options are examined below, in order of the most narrow to the most expansive, with a brief discussion of the Court’s likely concerns in deciding among its options.
Arguments on the Merits: The Court May Address a Range of Legal Issues, from the Most Narrow to the Major underlying Issues of the Conflict
The main argument made by those supporting the Advisory Request concerned the path of the wall: all agreed that if the wall were built solely within Israeli boundaries, there would be no challenge to its legality.(10) Thus, should the Court wish to find the most narrow grounds for its opinion, it could address only the route of the wall, to determine the consequences of Israel’s construction outside the boundaries of the 1949 Armistice Agreement. The Court could engage in an analysis of whether the 1949 Armistice Lines are settled under international law, or remain disputed. If the former, the ICJ will likely confirm the UNGA’s claim that Israel’s construction of the wall in its current route is illegal; if the latter, the legality may be less clear, and the Court may engage in further inquiry on the issue. However, the Court does not need to determine precisely what the Israeli borders are as a matter of international law in order to affirm the illegality of the wall’s current path.
Some legal experts on the question conclude that the only de jure boundaries were those established under Resolution 181 for the two entities that were to be created in Palestine: for Israel, those were pre-1949 Armistice borders defining the ‘Jewish state.’(11) The Armistice Agreements of 1949 did not establish new de jure boundaries, but recognized the expanded de facto boundaries claimed by Israel. These boundaries may have obtained international recognition, by virtue of subsequent Security Council resolutions.(12) Other experts dispute the authority of Resolution 181 to establish de jure boundaries at all, since the Partition Resolution was a recommendation to the parties to the conflict, thus could not be binding, and in any event violated the terms of the Mandate on Palestine through which the UN was exercising authority over the matter.(13) Although there has been no subsequent de jure establishment of any final borders within which the Palestinian state recognized by Resolution 181 is to be established, there is both international and UN recognition that Israel is illegally occupying the areas of the West Bank, Gaza and East Jerusalem it seized in 1967.(14) These areas remain ‘international,’ and are recognized as the territorial unit within which Palestinian self-determination will be exercised. Thus, at a minimum, the ICJ could find that Israel is not entitled to take actions which prejudice the well-established legal right of the Palestinian people to exercise self-determination over those areas, actions that prejudice the final status of those territories.
If the Court finds that the 1949 Armistice Line settles the question of the borders, it need not further examine the consequences of the wall, as everything related to its construction will consequently be prohibited as also illegal. In its opinion, the Court may, nevertheless, address the consequences to Palestinians of Israel’s actions, and discuss how such actions violate various humanitarian and human rights provisions. However, if the Court believes the borders are not settled, that they remain ‘disputed,’ then the Court must address whether international humanitarian law and/or human rights law provisions nevertheless constrain Israeli actions in the Palestinian territories; and if so, which provisions apply.
If the ICJ addresses the applicability of IHL in the Occupied Territories it will most likely find both the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949 clearly applicable in the Occupied Territories--both because Israel has agreed that certain provisions of those treaties apply to the territories in some circumstances, and because they have become customary norms and thus universally applicable. Under the Hague Regulations and the Fourth Geneva Convention, the status of the West Bank, Gaza and East Jerusalem as ‘occupied,’ is a matter of factual inquiry, and the requisite facts exist to establish Israel as ‘occupier’ and the Palestinians as ‘occupied,’ or ‘protected persons.’(15) From this conclusion, the ICJ will examine the main contention put forth by Israel, which is that the wall is necessary protection against suicide bombers entering Israel from the occupied territories, and the Palestinian position that the wall’s location is not calculated to prevent suicide bombers as it is not constructed on the Israeli side of the 1949 armistice line. Israel’s argument is that if humanitarian or human rights law is applicable, it has the right to protect its people and territory under the principle of “necessity.”(16)
The ICJ has recently decided a case examining the defense of “necessity.” In the Gabcikovo-Nagymaros Project Case, the ICJ found that the necessity defense was unavailable even if the state claiming the defense did not cause the danger to itself.(17) Whether or not the state ‘contributed’ to the danger is the test, and as long as the state’s actions were a factor in causing the danger, it cannot claim the defense of ‘necessity.’ Thus, under prior precedent, the Court is unlikely to find that Israel meets the requirements to claim that building the wall is ‘necessary’ because of the danger of Palestinian suicide bombings.
Additional Considerations and Consequences of an Advisory Opinion in the Context of the Palestine-Israel Conflict
It is unlikely that the Court will address the additional contentions by the claimants that Israeli actions, in constructing the wall, in the wall regime it has put in place and the consequences, constitute war crimes. The above conclusions alone are sufficient for the Court to address the basic question put forward by the advisory opinion request and confirm, without more, that Israel’s construction of the wall in the location it has been constructed, is a violation of international law. Such conclusion will logically lead to the implication that everything related to the wall’s construction—land expropriation, dispossession, denial of IH and HR obligations—will consequently be prohibited as also illegal, without the necessity of examining precisely which actions constitute further violations of law. Moreover, in rendering an advisory opinion, the Court will likely steer clear of opining on issues that could make one of the affected entities vulnerable to criminal prosecution at the fledgling International Criminal Court. The merits of the claim that construction of the wall and the regime that Israel has put in place around it violates international law are very strong, without the need for additional examination of whether they subject Israel to criminal culpability. In fact, Israel’s own legal advisors on the case have conceded that the Court is likely to render an opinion unfavorable to Israel.(18)
Moreover, the Court is most likely, in a dispute as longstanding, contentious and politically charged as this, to seek a relatively narrow ground for its opinion.(19) Israel and its supporters have strenuously argued that this it is inappropriate for the Court to render an opinion in this situation, which should only be decided through political negotiations.(20) Thus, the Court will be mindful of charting a fine line between what is likely to be perceived as an overly political opinion from a clearly legal one, and is unlikely to reach issues that are not absolutely essential to a narrow decision.
Nevertheless, the Court will be aware of the ramifications of an advisory opinion in this case, with the clear precedent of its advisory and contentious decisions in the South West Africa Cases. In the ongoing tension between the UN and South Africa concerning the Namibia (South West Africa) mandates, the ICJ gave a series of decisions and advisory opinions.(21) In 1970, the Security Council adopted a resolution declaring that “the continued presence of the South African authorities in Namibia is illegal, and…consequently all acts taken by the Government of South Africa, on behalf of or concerning Namibia after the termination of the Mandate, are illegal and invalid.”(22) The Security Council called on all states to “refrain from any dealings with the Government of South Africa.” When South Africa failed to act in accordance with the UN resolutions, the Security Council sought an advisory opinion from the ICJ on the legal consequences of South Africa’s failure to comply.(23) The Court’s advisory opinion agreed with the UN that “South Africa is under obligation to withdraw its administration from Namibia immediately…” It further stated that “States members of the United Nations are under obligation…to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the s of, or lending support or assistance to, such presence and administration.”(24) Commentators claim that the ICJ opinions and rulings in the South Africa cases were important factors in the establishment of sanctions against South Africa.(25)
The ICJ’s advisory opinions are not binding. However, there is no doubt that what the Court opines in its response to the request for an opinion on the wall will have far-reaching implications for the ongoing Israeli-Palestinian conflict, no matter how narrowly the Court frames its decision.
(1) See, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights,(the Cumaraswamy case), Advisory Opinion, 1999 ICJ Reports 62 (Apr. 28, 1999); see also, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (Jul. 1996)..
(2) Status of Eastern Carelia, Permanent Court of International Justice, Advisory Opinion, 1923 PCIJ Series B, No. 5 (dispute between Finland and Russia when Russia was not a member of the League of Nations, and both states did not concede to PCIJ jurisdiction). For the distinction between competence to render advisory opinions and jurisdiction over contentious cases under the ICJ Statute in comparison to the Statute of the ICJ’s predecessor, the Permanent Court of Justice (PCIJ), see Iain Scobbie, Legal Consequences of the Construction of a wall in the Occupied Palestinian Territory: request for an advisory opinion, An analysis of issues concerning competence and procedure, Hotung Project-Law, Human Rights and Peace Building in the ME—Papers, No. 1, available at: at 5-6.The distinction in the provisions between the two Statutes on this point is one of the main reasons for the PCIJ decision declining to render an advisory opinion in the Eastern Carelia Advisory Opinion case, heavily relied on by Israel in claiming the ICJ lacks competence to render an opinion on the wall. See Written Statement of the Government of Israel on Jurisdiction and Propriety, available at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm (Jan. 30, 2004) [Israel’s Written Statement], at 93ff.
(3) See Legality of the Threat or Use of Nuclear Weapons, supra note 1.
(4) See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion[Namibia Advisory Opinion], 1971 I.C.J. 16 (Jun. 1971)..
(5) See Western Sahara, Advisory Opinion [Western Sahara], 1975 I.C.J. 12 (Oct. 1975); Namibia Advisory opinion, supra note 4.
(6) See Legality of the Threat or Use of Nuclear Weapons, supra note 1; see also Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, 2nd Phase, Advisory Opinion, 1950 I.C.J. 221 (Jul. 18, 1950).
(7) See Western Sahara, supra note 5; see also, Applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities of the United Nations (the Mazilu case), Advisory Opinion, 1989 I.C.J. Rep. 177; and Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (the Cumaraswamy case), Advisory Opinion, 1999 I.C.J. Rep. 62.
(8) See Legality of the Threat or Use of Nuclear Weapons, supra at note 1.
(9) See id., at 233, para. 14.
(10) See Palestine Oral Statement, Verbatim Record of Proceedings, CR 2004/1, Public sitting held on Monday 23 February 2004, at 10 a.m., at the Peace Palace, President Shi presiding (2004), available at at 23; See also Written Statement submitted by Palestine, available at (Jan. 30, 2004),[Palestine’s Written Statement]; Written Statement of the Arab League, available at .
(11) See W.Thomas Mallison and Sally V. Mallison, An International Law analysis of the Major United Nations Resolutions Concerning the Palestine Question, ST/ST/SER.F/4 (1979) [Mallison, International Law Analysis], at47.
(12) See S.C. Res. 242, U.N. SCOR, 1382th mtg., U.N.. Doc. S/Res/242 (1967)(referring to the requirement that Israel ‘withdraw from territories occupied in the recent conflict,’ but not referring to withdrawal from territories occupied before 1967). See Mallison, id.
(13) John Quigley, Palestine’s Declaration of Independence: Self-Determination and the Right of the Palestinians to Statehood, 7 B.U. Int’l. L.J.1 (1989) [Quigley], at 18-21.
(14) See S.C. Res. 242, supra note 176; S.C. Res. 1515, U.N. SCOR, 4862nd mtg., U.N. Doc. S/Res/1515 (2003); G.A. Res. 3236, U.N. GAOR, 29 Sess., Supp. No. 30, U.N. Doc. A/RES/3236 (XXIX) (1974); G.A. Res. 3210, U.N. GAOR, 29 Sess., Supp. No. 30, U.N. Doc. A/RES/3210 (XXIX) (1974).
(15) See Convention Respecting the Laws and Customs of War on Land, with Annex of Regulations [Hague Regulations], Oct. 18, 1907, 36 Stat 2277, T.S. 539, art. 42; Convention Relative to the Protection of Civilian Persons in Time of War [4th Geneva Convention], Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, arts. 1, 2(1) and 2(2), 3 and 4. See also International Committee of the Red Cross, Commentaries to the Conventions [ICRC Commentary] arts. 1 and 2, available at http://www.icrc.org/ihl.nsf/COMART?OpenView&Start=1&Count=150&Expand=4#4.
(16) Under Art. 25 of the Articles on the Responsibility of States for Internationally Wrongful Acts of the UN’s International Law Commission, “necessity” is an extraordinary defense, and is strictly limited. It cannot be invoked if the state’s own actions create the situation of danger. The UN Human Rights Committee has noted that Israel itself contributes to suicide bombings through “the illegal occupation of Palestinian territory, the bombing of civilian areas, extrajudicial killings, the disproportionate use of force by the IDF, the demolition of homes, the destruction of infrastructure, mobility restrictions and the daily humiliation of Palestinians…” (Oct. 9, 2002 HRC report). See John Quigley, The Defense of Necessity in Request for Advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (3/7/2004), available at: .
(17) Case Concerning the Gabcikovo-Nagymoros Project (Hungary/Slovakia), ICJ Reports, 1997 (25 Sept. 1997).
(18) See Ori Nir, Israel Fears Isolation, Sanctions Over Fence: Slam the Court, Advisers Urge, Forward, January 9, 2004, available at <www.forward.com/issues/2004/04.01.09/news1.html>, (citing Alan Dershowitz, one of the advisors to Israel on the wall case, as encouraging Israeli supporters to discredit the court: “The case is a foregone conclusion…Israel’s going to lose. The only question is whether it will lose unanimously, and there is a substantial chance it might.” He argues that those who support Israel should “be prepared to expose this court for what it really is…it would be insulting to kangaroos to call it a kangaroo court”). Dershowitz’s views of the ICJ are not shared by international legal scholars, see The World Court, 80 Am. Soc. Int’l. L. Proceedings 201 (1986) (Remarks of international law experts John R. Stevenson, Lori F. Damrosch, Abraham D. Sofaer, Oscar Schachter, Antony D’Amato).
(19) As this article went to press, the Israeli Supreme Court ruled that the route of the wall violated the rights of Palestinians affected by the wall under international humanitarian law, and that a small portion of the wall had to be changed. See, Molly Moore, Israeli Court Orders Changes in Barrier: Route Through West Bank Found to Violate Palestinians’ Rights, Washington Post, July 1, 2004(A 01), available at: <http://www.washingtonpost.com/wp-dyn/articles/A16630-2004Jun30.html>; Beit Sourik Village Council v. the Government of Israel, Commander of the IDF Forces in the West Bank, HCJ 2056/04 (Jun. 30, 2004).
(20) See, for example, Ruth Wedgwood, The International Court of Justice and the Israeli “Fence,” available at <www.benadorassociates.com/article/2222> (Feb. 23, 2004).
(21) See the Namibia Advisory Opinion, supra note 43; See also, Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, 1955 ICJ Rep. 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion, 1956 I.C.J. 20 (Jun. 1); International Status of South West Africa, Advisory Opinion, 1950 I.C.J. 128 (Jul. 11); and the contentious case, South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), 2nd Phase, 1966 I.C.J. 6 (Jul. 18);
(22) See S.C. Res. 276, U.N. SCOR, 1527th mtg., U.N. Doc. S/RES/276 (1970).
(23) The request was: “What are the legal consequences for States of the continued presence of south African in Namibia, notwithstanding Security Council resolutions 276 (1970)?” See Namibia Advisory Opinion, supra note 4.
(24) Namibia Advisory opinion, supra note 4,at 58.
(25) See, eg, Ernst Klein, South West Africa/ Namibia (Advisory Opinions and Judgments) in 2 Encyclopedia of Public International Law 260-70 (analyzing the four advisory opinions, twojudgments and various orders of the ICJ in the South West Africa/Namibia matters, and concluding: “Whichever way the South West Africa/Namibia decisions are seen, it is certain that without this judicial basis the legal and political pressure upon South Africa would not have been as strong as it has been…” at p. 269). Israeli officials affirm this view, See Nir, supra note 181, (quoting Israeli justice minister Yosef Lapid as saying that the process “will turn Israel into an apartheid-era South Africa…” and that “I am afraid that we will be boycotted in every international forum.”)
Susan Akram is associate professor at the Boston University School of Law. Elizabeth Badger and Rasmus Goksor are students at BUSL. This article is excerpted from a longer article by the authors entitled, “An Analysis of the Main Substantive Arguments on the Legality of the Wall and its Consequences” and published by the Palestine Center