Study Guide: GA request for Advisory Opinion

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STUDY GUIDE TO THE ICJ ADVISORY OPINION ON THE ISRAELI WALL BEING BUILT IN PALESTINE

General Assembly request for the Advisory Opinion - articles 1 - 12, 18 - 23 (text & notes)

ICJ jurisdiction - articles 13 - 17, 24 - 31, 65 (text & notes)
ICJ summary of its Advisory Opinion - article 163 (text & notes)
ICJ member judges voting on the Opinion- article 163 (text & notes)

International humanitarian law, applicability of - articles 86 - 101 (text & notes)

International human rights law, applicability of - articles 102 - 113 (text & notes)

Israeli opposition to ICJ ruling on the wall - articles 33 - 64 (text & notes)
Israeli settlements, violaton of international law - article 99, 120 (text & notes)

Wall, legal consequences of - articles 144 - 162 (text & notes)
Wall, use of the term - article 67 (text & notes)
Wall, violation of international law - articles 115 - 142 (text & notes)

General Assembly request for the Advisory Opinion (articles 1 - 12, 18 - 23)

TEXT OF THE ADVISORY OPINION

NOTES ON THIS SECTION

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?

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¹ United 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."
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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 Republic of Algeria: Mr. Ahmed Laraba, Professor of International Law;

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 of Bangladesh: H.E. Mr. Liaquat Ali Choudhury, Ambassador of the 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 of Jordan: H.R.H. Ambassador Zeid Ra'ad Zeid Al-Hussein, 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 Islamic Conference: H.E. Mr. Abdelouahed Belkeziz, Secretary General of the Organization of the Islamic Conference,
Ms Monique Chemillier Gendreau, Professor of Public Law, University of Paris VII Denis Diderot, as Counsel.

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.

Articles 1 - 12, 18 - 23: Procedural steps followed by the General Assembly to get ICJ to give an Advisory Opinion on the Wall.

Articles 1- 12. REFERS TO: UN Charter (art. 96); Statute of the ICJ (art. 65); GAres ES-10/13 & ES-10/14; SC res 181 (II), 242 (1967), 338 (1973), 267 (1969), 298 (1971), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 904 (1994), 1073 (1996), 1397 (2002), and 1515 (2003); UN Charter; GAres 2625; Hague Regulations IV (1907); Geneva Convenetions IV (1949); Geneva Conventions (Protocol I); International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child; Special Rapporteur of the Commission on Human Rights report (2003) (E/CN.4/2004/6); and the "Roadmap"; Letter from the Registrar, Statute of the ICJ (art. 66); Letter from Israel; Statute of the ICJ (arts. 65(para.2) & 66); GA res ES-10/14; Secretary General report; Rules of the Court (arts. 105 & 106); letters from member-nations concerning this topic - (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; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 232, para. 10.

Articles 18-23. REFERRED TO: GA res ES-10/2, ES-10/13 (para.1&3) & ES-10/14; SC Draft Memos S/1997/199, S/PV.3747, S/1997/241, S/PV.3756; GA resolution resolution ES 10/13; SC resolution 377 A (V); letter from Qatar A/ES 10/1; letter from Syria S/2003/973; SC Draft resolutions S/PV.4841 and S/PV.4842; letter from Arab Group A/ES 10/242; letter from Non-Aligned Movement A/ES 10/243; letter from Organization of the Islamic Conference Group at the United Nations A/ES 10/244; Report of the Secretary-General A/ES 10/248; letter from Arab Group A/ES 10/249; SC res 1515 (2003); Quartet Performance based Roadmap to a Permanent Two State Solution to the Israeli Palestinian Conflict; letter from Kuwait (2003) (A/ES-10/249).

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