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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)
Legal status of territories & East Jerusalem - articles 70 - 85 (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)
International Humanitarian Law, applicability of (articles 86 - 101)
TEXT OF THE ADVISORY OPINION |
NOTES ON THIS SECTION |
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86. The Court will now determine the rules and principles of international law which are relevant in assessing the legality of the measures taken by Israel. Such rules and principles can be found in the United Nations Charter and certain other treaties, in customary international law and in the relevant resolutions adopted pursuant to the Charter by the General Assembly and the Security Council. However, doubts have been expressed by Israel as to the applicability in the Occupied Palestinian Territory of certain rules of international humanitarian law and human rights instruments. The Court will now consider these various questions. 87. The Court first recalls that, pursuant to Article 2, paragraph 4, of the United Nations Charter:
On 24 October 1970, the General Assembly adopted resolution 2625 (XXV), entitled "Declaration on Principles of International Law concerning Friendly Relations and Co operation among States" (hereinafter "resolution 2625 (XXV)"), in which it emphasized that "No territorial acquisition resulting from the threat or use of force shall be recognized as legal." As the Court stated in its Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the principles as to the use of force incorporated in the Charter reflect customary international law (see I.C.J. Reports 1986, pp. 98 101, paras. 187 190); the same is true of its corollary entailing the illegality of territorial acquisition resulting from the threat or use of force. 88. The Court also notes that the principle of self determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 (XXV) cited above, pursuant to which "Every State has the duty to refrain from any forcible action which deprives peoples referred to [in that resolution] . . . of their right to self determination." Article 1 common to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights reaffirms the right of all peoples to self determination, and lays upon the States parties the obligation to promote the realization of that right and to respect it, in conformity with the provisions of the United Nations Charter. The Court would recall that in 1971 it emphasized that current developments in "international law in regard to non self governing territories, as enshrined in the Charter of the United Nations, made the principle of self determination applicable to all [such territories]". The Court went on to state that "These developments leave little doubt that the ultimate objective of the sacred trust" referred to in Article 22, paragraph 1, of the Covenant of the League of Nations "was the self determination . . . of the peoples concerned" (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, paras. 52 53). The Court has referred to this principle on a number of occasions in its jurisprudence (ibid.; see also Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 68, para. 162). The Court indeed made it clear that the right of peoples to self determination is today a right erga omnes (see East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29). 89. As regards international humanitarian law, the Court would first note that Israel is not a party to the Fourth Hague Convention of 1907, to which the Hague Regulations are annexed. The Court observes that, in the words of the Convention, those Regulations were prepared "to revise the general laws and customs of war" existing at that time. Since then, however, the International Military Tribunal of Nuremberg has found that the "rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war" (Judgment of the International Military Tribunal of Nuremberg, 30 September and 1 October 1946, p. 65). The Court itself reached the same conclusion when examining the rights and duties of belligerents in their conduct of military operations (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 256, para. 75). The Court considers that the provisions of the Hague Regulations have become part of customary law, as is in fact recognized by all the participants in the proceedings before the Court. The Court also observes that, pursuant to Article 154 of the Fourth Geneva Convention, that Convention is supplementary to Sections II and III of the Hague Regulations. Section III of those Regulations, which concerns "Military authority over the territory of the hostile State", is particularly pertinent in the present case. 90. Secondly, with regard to the Fourth Geneva Convention, differing views have been expressed by the participants in these proceedings. Israel, contrary to the great majority of the other participants, disputes the applicability de jure of the Convention to the Occupied Palestinian Territory. In particular, in paragraph 3 of Annex I to the report of the Secretary General, entitled "Summary Legal Position of the Government of Israel", it is stated that Israel does not agree that the Fourth Geneva Convention "is applicable to the occupied Palestinian Territory", citing "the lack of recognition of the territory as sovereign prior to its annexation by Jordan and Egypt" and inferring that it is "not a territory of a High Contracting Party as required by the Convention". 91. The Court would recall that the Fourth Geneva Convention was ratified by Israel on 6 July 1951 and that Israel is a party to that Convention. Jordan has also been a party thereto since 29 May 1951. Neither of the two States has made any reservation that would be pertinent to the present proceedings. Furthermore, Palestine gave a unilateral undertaking, by declaration of 7 June 1982, to apply the Fourth Geneva Convention. Switzerland, as depositary State, considered that unilateral undertaking valid. It concluded, however, that it "[was] not as a depositary in a position to decide whether" "the request [dated 14 June 1989] from the Palestine Liberation Movement in the name of the 'State of Palestine' to accede" inter alia to the Fourth Geneva Convention "can be considered as an instrument of accession". 92. Moreover, for the purpose of determining the scope of application of the Fourth Geneva Convention, it should be recalled that under common Article 2 of the four Conventions of 12 August 1949:
93. After the occupation of the West Bank in 1967, the Israeli authorities issued an order No. 3 stating in its Article 35 that:
Subsequently, the Israeli authorities have indicated on a number of occasions that in fact they generally apply the humanitarian provisions of the Fourth Geneva Convention within the occupied territories. However, according to Israel's position as briefly recalled in paragraph 90 above, that Convention is not applicable de jure within those territories because, under Article 2, paragraph 2, it applies only in the case of occupation of territories falling under the sovereignty of a High Contracting Party involved in an armed conflict. Israel explains that Jordan was admittedly a party to the Fourth Geneva Convention in 1967, and that an armed conflict broke out at that time between Israel and Jordan, but it goes on to observe that the territories occupied by Israel subsequent to that conflict had not previously fallen under Jordanian sovereignty. It infers from this that that Convention is not applicable de jure in those territories. According however to the great majority of other participants in the proceedings, the Fourth Geneva Convention is applicable to those territories pursuant to Article 2, paragraph 1, whether or not Jordan had any rights in respect thereof prior to 1967. 94. The Court would recall that, according to customary international law as expressed in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Article 32 provides 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. The object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention, as defined by the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if occupation effected during the conflict met no armed resistance, the Convention is still applicable. This interpretation reflects the intention of the drafters of the Fourth Geneva Convention to protect civilians who find themselves, in whatever way, in the hands of the occupying Power. Whilst the drafters of the Hague Regulations of 1907 were as much concerned with protecting the rights of a State whose territory is occupied, as with protecting the inhabitants of that territory, the drafters of the Fourth Geneva Convention sought to guarantee the protection of civilians in time of war, regardless of the status of the occupied territories, as is shown by Article 47 of the Convention. That interpretation is confirmed by the Convention's travaux préparatoires. The Conference of Government Experts convened by the International Committee of the Red Cross (hereinafter, "ICRC") in the aftermath of the Second World War for the purpose of preparing the new Geneva Conventions recommended that these conventions be applicable to any armed conflict "whether [it] is or is not recognized as a state of war by the parties" and "in cases of occupation of territories in the absence of any state of war" (Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, 14 26 April 1947, p. 8). The drafters of the second paragraph of Article 2 thus had no intention, when they inserted that paragraph into the Convention, of restricting the latter's scope of application. They were merely seeking to provide for cases of occupation without combat, such as the occupation of Bohemia and Moravia by Germany in 1939. 96. The Court would moreover note that the States parties to the Fourth Geneva Convention approved that interpretation at their Conference on 15 July 1999. They issued a statement in which they "reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem". Subsequently, on 5 December 2001, the High Contracting Parties, referring in particular to Article 1 of the Fourth Geneva Convention of 1949, once again reaffirmed the "applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem". They further reminded the Contracting Parties participating in the Conference, the parties to the conflict, and the State of Israel as occupying Power, of their respective obligations. 97. Moreover, the Court would observe that the ICRC, whose special position with respect to execution of the Fourth Geneva Convention must be "recognized and respected at all times" by the parties pursuant to Article 142 of the Convention, has also expressed its opinion on the interpretation to be given to the Convention. In a declaration of 5 December 2001, it recalled that "the ICRC has always affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel, including East Jerusalem". 98. The Court notes that the General Assembly has, in many of its resolutions, taken a position to the same effect. Thus on 10 December 2001 and 9 December 2003, in resolutions 56/60 and 58/97, it reaffirmed "that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Occupied Palestinian Territory, including East Jerusalem, and other Arab territories occupied by Israel since 1967". 99. The Security Council, for its part, had already on 14 June 1967 taken the view in resolution 237 (1967) that "all the obligations of the Geneva Convention relative to the Treatment of Prisoners of War . . . should be complied with by the parties involved in the conflict". Subsequently, on 15 September 1969, the Security Council, in resolution 271 (1969), called upon "Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation". Ten years later, the Security Council examined "the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967". In resolution 446 (1979) of 22 March 1979, the Security Council considered that those settlements had "no legal validity" and affirmed "once more that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem". It called "once more upon Israel, as the occupying Power, to abide scrupulously" by that Convention. On 20 December 1990, the Security Council, in resolution 681 (1990), urged "the Government of Israel to accept the de jure applicability of the Fourth Geneva Convention . . . to all the territories occupied by Israel since 1967 and to abide scrupulously by the provisions of the Convention". It further called upon "the high contracting parties to the said Fourth Geneva Convention to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1 thereof". Lastly, in resolutions 799 (1992) of 18 December 1992 and 904 (1994) of 18 March 1994, the Security Council reaffirmed its position concerning the applicability of the Fourth Geneva Convention in the occupied territories. 100. The Court would note finally that the Supreme Court of Israel, in a judgment dated 30 May 2004, also found that:
101. In view of the foregoing, the Court considers that the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties. Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out. The Court accordingly finds that that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories. |
Articles 86 - 101 - the court rules that International humanitarian
law (including the Geneva Conventions of 1949) are applicable to the Israeli
occupation. Article 99 also agrees with the UN Security Council that the
Israeli settlements are illegal as per the Geneva Conventions.
86. The Court now determines the applicability of international law to these steps taken by Israel. 87. The Court recalls that it is illegal to acquire territory by force, and this is a principle of customary international law. REFERRED TO: UN Charter, GA resolution 2625 (XXV), entitled "Declaration on Principles of International Law concerning Friendly Relations and Co operation among States"; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America); I.C.J. Reports 1986, pp. 98 101, paras. 187 190. 88. The Court recalls that the right of self-determination of peoples is erga omnes, and enshrined in international law, and that this applies to all territories including non-self-governing ones, and all states have a "sacred trust" obligating them to promote it. REFERRED TO: UN Charter, GA resolution 2625 (XXV), entitled "Declaration on Principles of International Law concerning Friendly Relations and Co operation among States"; International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa); Security Council Resolution 276 (1970); Advisory Opinion, I.C.J. Reports 1971, p. 31, paras. 52 53); Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 68, para. 162; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29). 89. As regards international humanitarian law, the Hague Regulations of 1907 are universally recognized as customary law, and are applicable to the present situation. REFERS TO: Hague Convention IV (1907) (Sections II & III); Military Tribunal of Nuremberg (1946)(p.65); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 256, para. 75; Geneva Conventions IV (1949) (art.154). 90 - 101. The Court rules that the Geneva Conventions are applicable to the occupied territories including East Jerusalem, and describes its reasoning. 90. Contrary to the majority of others involved, Israel does not believe that the Geneva Conventions IV (1949) are applicable to its occupation of the West Bank and Gaza Strip because these areas were not recognized as sovereigns prior to their annexations by Egypt and Jordan, and because they are also not High Contracting Parties of the Geneva Conventions. REFERS TO: Geneva Conventions IV (1949); Secretary-General report (Annex I, para.3). 91. But the Geneva Conventions (1949) were ratified by both Israel and Jordan, and Palestine made a formal request to accede to the Geneva Conventions (which has not yet been formally accepted). REFERS TO: Geneva Conventions IV (1949). 92. ... and the Geneva Conventions declare that parties to the convention are bound by it even if others involved are not parties to it. REFERS TO: Geneva Conventions IV (1949) (art. 2). 93. The Court recalls that immediately when the occupation began, Israel declared that the Geneva Conventions were applicable, and thereafter Israel has declared that it follows the humanitarian provisions within the Geneva Conventions. In addition, everyone else involved have judged that the Geneva Conventions apply to the territories irrespective of the validity of Jordan's annexation attempt. REFERS TO: Geneva Conventions IV (1949) (art. 2 (para.1)); Israeli Military Order 3. 94. The Court recalls the Vienna Convention on the Law of Treaties (1969) that says that interpretation of treaties must be made in good faith according to the ordinary meaning of the language of the treaty. REFERS TO: Vienna Convention on the Law of Treaties (1969)(art.31 & 32); Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections, I.C.J. Reports 1996 (II), p. 812, para. 23; Kasikili/Sedudu Island (Botswana/Namibia), I.C.J. Reports 1999 (II), p. 1059, para. 18; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37. 95. The Court notes that Art. 2 of the Conventions declares itself applicable to any territory involved in a conflict between two contracting parties (as both Israel and Jordan were), irrespective of the sovereignty of those territories. International review has declared that the Conventions are meant to protect any civilians caught up in armed conflict, and are not meant to be taken in the most narrow exclusionary sense. REFERS TO: Geneva Conventions IV (1949) (art.2 (para.2) & 47); Hague Regulations (1907); Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, 14 26 April 1947, p. 8. 96. The Court further notes that at a 1999 Conference, the States party to the Fourth Geneva Convention declared the Conventions are applicable to the occupied territories including East Jerusalem, and applicable to Israel as the occupier in the conflict. REFERS TO: Geneva Conventions IV (1949) (art.1). 97. The Court further notes that the International Committee of the Red Cross (ICRC - executor of the Geneva Conventions (1949)) has declared the Conventions are applicable to the occupied territories, including East Jerusalem. REFERS TO: Geneva Conventions IV (1949) (art.142). 98. The UN General Assembly has declared in resolutions 56/60 and 58/97 that the Geneva Conventions are applicable to the occupied territories including East Jerusalem. REFERS TO: Geneva Conventions IV (1949); GA res 56/60 and 58/97. 99. THE UN Security Council declared in resolutions 237 (1967), 271 (1969), 446 (1979), 681 (1990), and 799 (1992) the applicability of the Geneva Conventions (1949) to the Israeli occupation. These include Security Council confirmation that the settlements are illegal as per article 49, para. 6 of the Geneva Conventions (1949). REFERS TO: Geneva Conventions IV (1949); SC res 237 (1967), 271 (1969), 446 (1979), 681 (1990), 799 (1992), 904 (1994). 100. The Court also notes that the Israeli Supreme Court has declared that both the Hague Conventions (1907) and the Geneva Conventions (1949) are applicable to Israeli military operations in Rafah in the occupied territories. REFERS TO: Israeli Supreme Court judgment (2004); Geneva Conventions IV (1949). 101. "In view of the foregoing, the Court considers that the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties. Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out. The Court accordingly finds that that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories." REFERS TO: Geneva Conventions IV (1949). |
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