This article is submitted by:

• Akansha Jain
• Ananya Vura
• Ankita Manchanda

The Israeli-Palestinian conflict is a perpetual struggle that has been referred to as the world’s most intractable international conflict. The issues perpetrated by the construction of the wall was a prime addition to this chaos of affairs. The Green Line demarcated the armies of Israel and its neighbouring states.[i] In 2002, Israel began the construction of a wall running not only across its territory but also across the occupied territory of Palestine, beyond the Green Line. Palestine claimed that this construction constituted an illegal annexation of territory in an attempt to undermine their basic fundamental rights. In response, Israel contended that this construction was initiated to combat the terrorist attacks launched by the Palestinians. Thereby, in 2004, the International Court of Justice (ICJ) issued a legal advisory opinion on the wall following a request by the UN General Assembly (GA).

Although the Advisory Opinion would touch its two-decade mark in a few years, it has unfortunately sparingly been implemented by the concerned parties. In light of the same, this paper endeavours to critically examine the Advisory Opinion of the International Court of Justice on the construction of the wall in the Occupied Palestinian Territory (OPT). This is exemplified with specific reference to the issues of jurisdiction, self-determination, humanitarian impact and the consequent legal consequences. This paper further analyses the judges’ opinions and concludes with the authors’ perspectives on the stance of various critics.

Upon acknowledging the gravity of the situation, the General Assembly requested the International Court of Justice to urgently render their 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?”[ii]

However, for the International Court of Justice to determine the legal consequences faced by the Palestinians, the Court felt the need to establish its jurisdiction to give an advisory opinion by the mandate of Article 65 of its statute and Article 96 of the GA Charter. According to Israel, Palestine was neither a part of the United Nations (UN) nor a party to the International Court of Justice statute. Israel asserted that it did not recognise Palestine as a state. Therefore, the issue presented before the Court was not only bilateral in nature but also lacked jurisdiction.[iii] The International Court of Justice held that, despite not being a member of the United Nations, it was vested with special responsibilities as Palestine was a former territory regarded under the mandate of the League of Nations and its territory was exposed to the partition plan detailed by the General Assembly itself. Moreover, Israel contested that if the Court decided to give the said opinion, “it will be forced to speculate about essential facts and make assumptions about arguments of law.”[iv] In response, the Court ruled that it had sufficient information on the route of the wall and its humanitarian impact on the citizens of both the States, thus was fit to exercise jurisdiction over the matter. Further, Israel argued that Palestine was seeking relief from the Court for its wrongdoings i.e., the violent acts against Israel. To this, the Court emphasized that the request to give an Advisory Opinion was by the General Assembly and not an individual State party, thus quashing this argument.

In light of the presented arguments, the Court concluded that it did in fact have jurisdiction over the matter to form an Advisory Opinion and that there was no reason for them to use their discretionary power to abstain from giving that opinion.

After establishing the International Court of Justice’s jurisdiction, the Court highlighted the main issue of self-determination by affirming the existence of the Palestinian population, which was evidenced in the form of letters exchanged between Israel and the PLO’s President.[v] Where Israel had recognised PLO as the representatives of the Palestinian people. Further, the Israeli-Palestinian agreement referred to the Palestinian people and their “legitimate rights” on multiple occasions. Thus, the court concluded that these rights included the right to self-determination. 

The International Court of Justice emphasized the well-established principle of self-determination of people under the UN Charter and the GA resolutions. Further, the right to self-determination as reiterated under Article 1 of International Covenant on Economic, Social & Cultural Rights (ICESCR) and the International Covenant on Civil & Political Rights (ICCPR) both, laid the obligation to promote the realization of that right and to respect it upon the states.[vi] Subsequently, the International Court of Justice made two observations. First, the route of the wall as fixated by Israel included 80% of the Israeli settlers residing in the OPT.[vii] Second, the route chosen for the construction included the majority of the Israeli settlements within the contested area.

The Court observed that as per Article 49 of the Fourth Geneva Convention, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies,”[viii] Israel had developed practices and formulated a policy involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the Article which consequently breached the International Law.[ix] Israel further provided assurance to the Court that the wall was of a temporary nature and did not amount to annexation. However, the Court maintained that it could not ignore the fear of integration of settlements, means of access or the de facto annexation that would result on account of its permanence.[x] Thereby, the route chosen highlighted the illegal measures adopted by Israel with regard to the settlements. Additionally, it presented an opportunity for Israel to further alter the demographic composition as well as contribute to the departure of the Palestinian population from certain areas in the Occupied Palestinian Territory.[xi]

It is interesting to note here that the court did not go into the issue of Palestine’s statehood to determine its right to self-determination and sufficed with merely the recognition of the Palestinian people’s rights. Neither did the Court discuss whether this was a case of internal or external self-determination, Thereby, paving way for much ambiguity. Therefore, it was observed that the construction severely impeded the Palestinian people’s right to exercise self-determination and thus was a breach of Israel’s obligations to respect that right.

Due to the erga omnes nature, it’s the duty of all states to ensure that such a right is realized and complied with. Further, a violation of such right particularly by ‘use of force’ was considered highly detrimental that eventually caused a serious violation of international law which has an adverse humanitarian impact.

This adverse impact became a major pillar that formed the foundational basis for the International Court of Justice’s opinion concerning the illegality of the construction of the wall. Israel constructed this wall after the second intifada i.e., a term for Palestinian uprising against oppression. The General Assembly declared it a human rights issue since the Occupied Palestinian Territory had already been experiencing violence and humanitarian crisis. Consequently, the Court touched on the violation of specific provisions of International Humanitarian Law (IHL) and International Human Rights Law (IHRL).

The General Assembly claimed that the construction of a wall does not only occur between the armies of two territories but also between the two groups of citizens who are directly affected by such actions. Upon examination of such actions committed by Israel, certain conventions including the Fourth Geneva Convention were considered by the International Court of Justice. Although Israel was a party to the Convention “relative to the Protection of Civilians in Times of War,”[xii] it claimed its inapplicability to the Occupied Palestinian Territory on the basis that it was not recognized as a sovereign and was neither a high contracting party as required by the Convention. However, the International Court of Justice after analyzing the intentions of the drafters and statements by state parties, concluded similarly to the ICRC, General Assembly and the Security Council that Israel was indeed bound to comply with the Convention, and the same also extended to the territories that were occupied by Israel which were under its control i.e., Occupied Palestinian Territory.[xiii] Court reasoned it by adopting a broader interpretation of Article 2 of the Convention. It stated that although not recognized as a sovereign or a contracting party, the effect of the occupation met no armed resistance, thereby validating its applicability to the Occupied Palestinian Territory.[xiv]

The contested part of the wall was not constructed in the Israeli territory but in the Palestinian territory that Israel had occupied by ‘use of force’. Occupation by use of force left major chunks of Palestinian land located between the Green Line and the wall, wherein 17% of the West Bank was home to 2,37,000 Palestinians.[xv] They were separated from the rest of the West Bank with the illegal erection of the contested wall, which seemed permanent and was tantamount to annexation. Upon acknowledging the situation and Article 2(4) of the UN Charter and its corollary regarding the prohibition of the ‘use of force’[xvi], the Court declared that since this territorial acquisition was a result of the hostile approach and use of force exercised by Israel. The same was not recognized as legal.

The Court observed violation of various provisions of the Geneva Convention as a consequent effect of the wall. Additionally, various rights of the Palestinians were infringed upon, which included the liberty of movement, their rights to work, health, education, and an adequate standard of living, besides provisions concerning the protection of property and their agricultural land.[xvii] The International Court of Justice further acknowledged the plight of the Palestinians residing between the wall and the Green Line who were left devoid of basic facilities such as health care facilities, primary food & water resources and other social services.[xviii] This directly affected the International Court of Justice’s perspective on the matter.

To this, Israel contended that the construction of the wall was well within their right of self-defence as per Article 51 of the UN Charter and by certain Security Council resolutions.[xix] Israel claimed that the prevention of suicide attacks against their citizens and other such security reasons were the main objectives behind the construction. Judge Higgins and Judge Kooijmans challenged this claim, although dissenting with the final ruling. They found that Article 51 was nowhere related to this case since it only recognized the existence of an inherent right of self-defence in cases involving armed attacks by one state against another.[xx] Per this rule, Israel failed to assert that the attacks against it were ascribable to another State, thereby failing its contention of right to self-defence against global terrorism.

State of necessity was another basis for Israel’s contention to the claims made by the International Court of Justice. However, per the Gabçikovo-Nagymaros case, the Court configured that necessity was acceptable only on an exceptional basis, under certain comprehensively defined conditions which were to be fully satisfied.[xxi] Since the state of necessity reflects an International Customary Rule, a factual situation of the grave and imminent peril against Israel did not legally justify their breach of an international obligation upon another State as the only means to safeguard their essential interests.[xxii] Kooijmans J. and Elaraby J. claimed that although Israel had the right and the duty to protect the security of its citizens and to defend its territory, such security measures were to be in strict conformity with Israel’s obligations under International Law.

Per Human Rights Committee, the restrictions imposed on the Palestinian population did not apply under exceptional circumstances and as per Kooijmans J.’s claim,these restrictions did not conform to the principle of proportionality.[xxiii] Moreover, the strategies used were highly intrusive in order to achieve the desired result i.e., the route chosen for the construction of the wall did not align with the interests that Israel sought to protest. Thereby, the Court concluded that Israel could not rely on the right of self-defence or a state of necessity in order to preclude the wrongfulness of the construction of the wall and its associated regime that were contrary to International Law.[xxiv] The Court then further moved on to examine the consequences of the concerning violations.

Ultimately, in order to comply with the requested question posed by the General Assembly to determine the legal consequences, various contentions were made before the Court by the concerned parties. These consisted of making reparations for the damages caused by its unlawful conduct, including both restitution and compensation.[xxv] Further, it was contended that Israel had a continuing duty of compliance with the international obligations. Considering the gravity of this situation, contentions were made for the legal consequences for other States as well.

On account of these contentions, the Court held that Israel was first under the obligation to comply with the various international obligations breached by it due to the construction of the wall. Accordingly, Israel was further obligated to respect the right of self-determination of the Palestinian people and its obligations under International Humanitarian Law (IHL) and International Human Rights Law (IHRL).[xxvi]

Furthermore, the Court observed that based on the established International Law precedence (Nicaragua),[xxvii] Israel had the obligation to put an end to the violation of its international obligations stemming from the construction of the said wall. To fulfil this obligation, the Court opined Israel to terminate the works of construction of the wall and further dismantle subsequently those parts of the structure which were situated within the Occupied Palestinian Territory.[xxviii] Henceforth, all legal acts adopted in lieu of construction were to be repealed, unless such acts provided any compensation or other forms of reparation to the Palestinian population.[xxix] Moreover, the Court found that Israel was duty-bound to make reparations for the damages caused to all-natural and legal persons affected by the construction.[xxx] In cases, where such material restitution was impossible, the people in question were to be compensated for any shape of material damages suffered by them.[xxxi]

The Court observed that the obligations violated by Israel included certain erga omnes obligations. This included the obligation to respect the right of self-determination of the Palestinian people and certain obligations under International Humanitarian Law (IHL). The Court’s reference to Article 1 of the Geneva Convention provided that the States already party to the Convention should ensure the breaching parties’ compliance to the provisions of the Convention.[xxxii] Thus, it asserted that the other States were under the obligation to not recognize the illegal situation resulting from the construction of the wall and not to render assistance in maintaining such a situation.[xxxiii] Keeping in view the UN Charter and International law, the States were to also ensure that any impairment of the right to self-determination of the Palestinian population caused by the construction must be ended.[xxxiv] Additionally, the States party to the Convention were obligated to ensure Israel’s compliance with International Humanitarian Law (IHL) as exemplified in the Convention. Ultimately, the Court maintained that the General Assembly and the Security Council should consider the actions further required to bring an end to the illegal situation resulting from the construction of the wall.[xxxv] Additionally, emphasis was laid upon the fact that both Israel and Palestine were obligated to observe the rules of the International Humanitarian Law (IHL) for the welfare of their citizens. Simultaneously, the implementation of relevant Security Council resolutions in good faith was assumed to possibly terminate the hostile situation.[xxxvi]

In conclusion, the Court issued a clear and unequivocal opinion, although technically not binding, it represented an authoritative statement from a legal position. With 14 votes to 1, it was held that the construction of the wall in the Occupied Palestinian Territory violated International Law with an adverse humanitarian impact, whereby Israel had to make reparations for all the damage caused as a result of the wall.

While various scholars critically analyzed the advisory opinion of the International Court of Justice, they largely agreed with the dissenting opinion of Buergenthal J. to a certain extent. Critics, in consonance with Buergenthal J.’s opinion, believed that the majority of the judges displayed bias towards Palestine. They claimed that although the Court acknowledged the global terrorism against Israel, it failed to make “an additional effort to address the potential defences raised by Israel.”[xxxvii] It is our opinion that the Court’s bias calls for ‘judicial misconduct. The International Court of Justice turned a blind eye towards the illegality and the serious implication of terrorism against Israel that the wall was built to counter. Rather, the Court emphasized the legal consequences imposed on Israel that were to conform with the international laws. Further, we commend the Court to have acknowledged and acted upon the claims made by the Palestinians, however, an extra effort could have been made to analyze the scope and reach of International Humanitarian Law (IHL) and International Human Rights Law (IHRL) provisions. This would have satisfied Buergenthal’s contention on their bias as well.

Another critique of this opinion stemmed from the International Court of Justice construing Article 51 narrowly and formalistically, eventually removing self-defence from the equation by applying it only against an attack from another state. This interpretation was not deliberated and elaborated upon by the Court thus resulting in confusion, which eventually made Buergenthal J. question the Court’s persuasive capacity. Per critic’s contention, the opinion failed to include the various other interpretations and constructions of Article 51 that were possible. In our opinion, the Court could have adopted the interpretation employed by the Security Council after the 9/11 attacks whereby, it was affirmed that self-defence applied irrespective of whether the attack came from within the state or not.[xxxviii]

Furthermore, critics agreed with Buergenthal J.’s claim of setting a higher evidentiary standard for the serious omission committed by giving an opinion based on insufficient information and inadequate sources. The Court acted upon the information that was either collected from public domains or received incidentally from Israel in their dispute for jurisdiction. Despite having insufficient knowledge about the issue, the International Court of Justice opined it to be “adequate information”[xxxix] which is an omission by the Court. In our opinion, this eventually undermined the authority of the opinion detrimentally. Similarly, due to the opinions’ inadequacy to enforce any monumental change in the Israel-Palestinian conflict, the consequences though well spelt out have unfortunately seldom been implemented, even after a decade.

However, it is an acknowledged fact that the advisory opinion was riddled with several ambiguities making it a grey area. Thus, it is our opinion that the Court might have reached a more practical conclusion, had appropriate analysis been conducted for it to be duly implemented. But by neglecting the salient issues from its examination, the Court severely undermined the merit and persuasiveness of the Advisory Opinion. Thereby making it an implicit condition that the Opinion will not be implemented by Israel. Evidently, thirteen years after the International Court of Justice’s opinion and receiving global attention, the construction of the wall failed to cease. In spite of putting the International Court of Justice’s advisory opinion on the pedestal, it was looked down upon and considered bad law.

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[i] Anti-Defamation League, The Green Line, https://www.adl.org/resources/glossary-terms/the-green-line (last visited April 21, 2021, 3:02 P.M.)

[ii] INTERNATIONAL COURT OF JUSTICE Reports 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, https://www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf (last visited April 17, 2021, 6:35 P.M.)

[iii] Jure Vidmar, Palestine v United States: Why the INTERNATION COURT OF JUSTICE does not need to decide whether Palestine is a state, EIJL: Talk! (2018).

[iv] UNROD, Summary of the Advisory Opinion of 9 July 2004, http://www.unrod.org/docs/INTERNATION COURT OF JUSTICE-Advisory2004.pdf (last visited April 20, 2021, 4:35 P.M.)

[v] INTERNATIONAL COURT OF JUSTICE Reports 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, https://www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf (last visited April 17, 2021, 6:35 P.M.)

[vi] Ibid.

[vii] Ibid.

[viii] Ibid.

[ix] Ibid.

[x] Ibid.

[xi] Ibid.

[xii] Ibid.

[xiii] Case & Comment (2004) 63 CLJ 3, 530.

[xiv] INTERNATIONAL COURT OF JUSTICE Reports 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, https://www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf (last visited April 17, 2021, 6:35 P.M.)

[xv] UNOCHA, Ten years since the International Court of Justice Advisory Opinion, https://www.un.org/unispal/document/auto-insert-201880/(last visited April 19, 2021, 3:39 P.M.).

[xvi] Ibid.

[xvii] INTERNATIONAL COURT OF JUSTICE Reports 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, https://www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf (last visited April 17, 2021, 6:35 P.M.)

[xviii] INTERNATIONAL COURT OF JUSTICE Reports 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, https://www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf (last visited April 17, 2021, 6:35 P.M.)

[xix] Case & Comment (2004) 63 CLJ 3, 530.

[xx] Ibid.

[xxi] Ibid.

[xxii] Attila Tanzi, State of Necessity, OXFORD PUBLIC INTERNATIONAL LAW (April 21, 2021, 4:14 P.M.) https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1071

[xxiii] UNROD, Summary of the Advisory Opinion of 9 July 2004, http://www.unrod.org/docs/INTERNATION COURT OF JUSTICE-Advisory2004.pdf (last visited April 20, 2021, 4:35 P.M.)

[xxiv] INTERNATIONAL COURT OF JUSTICE Reports 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, https://www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf (last visited April 17, 2021, 6:35 P.M.)

[xxv] Ibid.

[xxvi] Ibid.

[xxvii] Ibid.

[xxviii] Ibid.

[xxix] Ibid.

[xxx] Ibid.

[xxxi] Ibid.

[xxxii] Ibid.

[xxxiii] Ibid.

[xxxiv] Ibid.

[xxxv] Ibid.

[xxxvi] Ibid.

[xxxvii] Susan Akram & S. Michael Lynk, The Wall and the Law: A Tale of Two Judgements, 24 NQHR 61 (2006) https://scholarship.law.bu.edu/faculty_scholarship/421

[xxxviii] Arye Schreiber, Graffiti on the Wall—A Critique of the INTERNATION COURT OF JUSTICE Advisory Opinion on the Israeli Security Wall, 16 KLJ 1, 160 (2005).

[xxxix] INTERNATIONAL COURT OF JUSTICE Reports 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, https://www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf (last visited April 17, 2021, 6:35 P.M.)