1 UN Doc. A/ES-10/PV.2I, at 6 (2003).

2 Id.

3 Article 51 provides in part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” UN CHARTER Art. 51.

4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 139 (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004) [hereinafter Advisory Opinion].

5 Speech by H. E. Judge Shi Jiuyong, President of the International Court of Justice, to the Sixth Committee of the General Assembly of the United Nations, The Advisory Function of the International Court of Justice (Nov. 5, 2004), at <http://www.icj-cij.org>.

6 See Advisory Opinion, supra note 4, Separate Opinion of Judge Kooijmans, 43 ILM at 1065, para. 35 [hereinafter Kooijmans Opinion] (“Although this statement is undoubtedly correct, as a reply to Israel’s argument it is, with all due respect, beside the point.”).

7 Advisory Opinion, supra note 4, para. 138.

8 Advisory Opinion, supra note 4, Separate Opinion of Judge Higgins, 43 ILM at 1058, para. 33 [hereinafter Higgins Opinion].

9 Advisory Opinion, supra note 4, Declaration of Judge Buergenthal, 43 ILM at 1078, para. 6 [hereinafter Buergenthal Declaration],

10 The Court was unwilling to regard Palestine as a “state” for purposes of Article 51, which is consistent with the fact that Palestine is not a member of the United Nations. However, in its treatment of Palestine throughout the proceedings (allowing it to make written and oral submissions) and in much of the jus in bello analysis, the Court appears to regard Palestine as the functional equivalent of a state. Thus, the Court considered the West Bank and Gaza Strip as sufficiently close to being territory of a foreign state for purposes of applying the Fourth Geneva Convention, noting that the territory was part of Jordan at one time and that Jordan and Israel were parties to the Geneva Conventions when the 1967 armed conflict broke out. Advisory Opinion, supra note 4, para. 101. Yet the Court refrained from regarding this territory as sufficiently close to being the territory of a foreign state for purposes of applying a different treaty, the UN Charter, to which Jordan and Israel were also parties as of 1967. Only with respect to the jus ad bellum argument does Palestine’s formal position as a nonstate seem to become a dispositive factor for the Court.

Giving Palestine a quasi-state status for purposes of appearing before the Court and for purposes of applying certain treaties that operate as between states, but not for other treaties, results in an unexplained double standard. If Palestine were regarded as the functional equivalent of a state for purposes of Article 51, presumably Israel would impute many of the terrorist attacks to that “state.” See Written Statement of the Government of Israel on Jurisdiction and Propriety 50 (Jan. 29, 2004), Advisory Opinion, supra note 4 [hereinafter Israel Written Statement] (stating that the “evidence of attribution, of commission and omission [of terrorist acts to Palestine], is great”).

11 .See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 31(1), 1155 UNTS 33], 340 [hereinafter Vienna Convention] (“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”). The Court has invoked this provision of the Vienna Convention on many occasions, including in its advisory opinion. See Advisory Opinion, supra note 4, para. 94.

12 Vienna Convention, supra note 11, Art. 31(1).

13 UN CHARTER Art. 2(4).

14 Id., pmbl., Arts. 55-56.

15 SC Res. 1540, pmbl. (Apr. 28, 2004), 43 ILM 1237 (2004) (acting under Chapter VII to address terrorism “and the risk that non-State actors” may acquire weapons of mass destruction); SC Res. 1566, para. 1 (Oct. 8, 2004); SC Res. 1373, pmbl. (Sept. 28, 2001), 40 ILM 1278 (2001); SC Res. 1377, annex, pmbl. (Nov. 12, 2001); see also SC Res. 1070, pmbl. (Aug. 16, 1996); SC Res. 731, pmbl. (Jan. 21, 1992), 31 ILM 732 (1992). The Security Council has defined a “non-State actor” as an “individual or entity, not acting under the lawful authority of any Slate.” SC Res. 1540, supra, at n.**

16 Advisory Opinion, supra note 4, paras. 86-87.

17 Military and Paramilitary Activities in and Against Nicaragua (Nicar.v. U.S.), Merits, 1986 ICJ REP. 14, para. 176 (June 27) [hereinafter Nicaragua Merits] (“Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right of self-defence, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter.”).

18 See id., para. 176; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226, para. 41 (July 8) [hereinafter Nuclear Weapons]; Oil Platforms (Iran v. U.S.), Merits, 2003 ICJ REP. 161, para. 51 (Nov. 6), 42 ILM 1334 (2003) [hereinafter Oil Platforms] (“The United States must also show that its actions were necessary and proportional to the armed attack made on it. . .”).

19 See, e.g., 1 Memorial Submitted by the Islamic Republic of Iran (Iran v. U.S.), 2003 ICJ Pleadings (Oil Platforms), para. 4.18 (June 8, 1993) (“This condition of lawful self-defence was reflected in the statement of U.S. Secretary of State Webster, in the celebrated Caroline case, regarded as the locus classifies of the customary right of self-defence.”); Counter-Memorial and Counter-Claim Submitted by the United States of America, id., para. 4.43 (June 23, 1997) (“Webster’s analysis established the requirements of necessity and proportionality as cornerstones oi the legal doctrine of self-defense.”). The ICJ Pleadings are available online at the Court’s Web site, <http://www.icj-cij.org>.

20 See, e.g., Gray, Christine, International Law and the Use of Force 120 (2d ed. 2004)Google Scholar; Shaw, Malcolm, International Law 1024 (5th ed. 2003)Google Scholar.

21 See, e.g., Nicaragua Merits, supra note 17, at 362, para. 200 (Schwebel, J., dissenting).

22 29 Brit. & Foreign St. Papers 1226, 1137-38(1857); 30 Brit. & foreign St. Papers 193,195 (1858) (exchange of letters between the United States and United Kingdom); see Jennings, R. Y. , The Caroline and McLeod Cases, 32 AJIL 82, 89(1938)Google Scholar.

23 The incident involved the assertion by the United Kingdom that its attack in U.S. territory on the schooner Caroline was permissible self-defense because the schooner had previously been used (and might be used again) to ferry supplies across the border to Canada to rebels who were fighting British rule in Canada. In support of the U.S. position, Webster cited eminent scholars of international law regarding the status of international custom, including Grotius, Pufendorf, and Vattel.

24 See, e.g., Waldock, C H. M. , The Regulation of the Use of Force by Individual States in International Law, 81 Recueil Des Cours 455, 464–66 (1952 Google Scholar II).

25 Nicaragua Merits, supra note 17, para. 191, quoted in Oil Platforms, supra note 18, para. 51; see also 1 The Charter of the United Nations: A Commentary 796 (Bruno, Simma ed., 2d ed. 2002)Google Scholar; Dinstein, Yoram, War, Aggression and Self-Defence 173–74 (3d ed. 2001)Google Scholar.

26 Nicaragua Merits, supra note 17, para. 195 (quoting Definition of Aggression, GA Res. 3314 (XXIX) (Dec. 14, 1974), 69 AJIL 480 (1975)).

27 Id.

28 M., paras. 210-11.

29 In the Nicaragua case, El Salvador asserted to the Court, among other things, that Nicaragua was providing “houses, hideouts and communication facilities” to the insurgents (“terrorists”) that were attacking El Salvador. Nicaragua Merits, supra note 17, para. 132. The Court found that until early 1981, “an intermittent flow of arms was routed via the territory of Nicaragua to the armed opposition in El Salvador,” without reaching any specific findings as to how much insurgent activity was occurring in Nicaragua as opposed to El Salvador. Id., para. 160.

30 See, e.g., id. at 544 (Jennings, J. dissenting) (“[I]t seems dangerous to define unnecessarily strictly the conditions for lawful self-defence, so as to leave a large area where both a forcible response to force is forbidden, and yet the United Nations employment of force, which was intended to fill that gap, is absent.”).

31 The Charier of the United Nations: A Commentary, supra note 25, at 801 (commentary by Professor Albrecht Randelzhofer that considering the “modern practice of international terrorism, . . . the statement of the ICJ is much too sweeping.... [and] would lead to the result that States are not sufficiently protected by Art. 51 of the Charter against force committed by other States in an indirect manner, thus eroding the very purpose of this rule”); Rosalyn Higgins, Problems and Process: International Law and How We Use It 250-51 (1994) (“That finding has occasioned a torrent of criticism, the critics contending that it is an encouragement for low grade terrorism because the state at whom it is directed cannot use force in self-defence against it.”).

32 By analogy, it would seem that the second state also could not engage in “counter-intervention” against the first state (i.e., could not take measures falling short of a use of force that would intervene in the first state’s internal affairs).

33 See, e.g., Oil Platforms, supra note 18, para. 76 (noting that “there is no evidence that the United States complained to Iran of the military activities of the platforms, . . . which does not suggest that the targeting of the platforms was seen as a necessary act”).

34 That approach would be consistent with the Court’s decision in Corfu Channel (UK v. Albania), Merits, 1949 ICJ REP. 4, 22 (Apr. 9), which notes “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.” In that case, the Court never established who had laid the mines that damaged the UK warships; rather, it placed an evidentiary burden on Albania to disprove its involvement given Albania’s control over the territory in which the mines were laid. When Albania did not do so, the Court held that Albania was responsible. Such an obligation is embedded more generally in the doctrine of sic utere tuo ut alienum non laedas (one must use his own so as not to injure others), which in turn has strongly influenced developments in international environmental law. See Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1911 (1941); Rio Declaration on Environment and Development, June 14, 1992, princ. 2, 31 ILM 874 (1992) Google Scholar.

35 Subsequent practice by states in the application of a treaty is regarded as relevant in some circumstances for purposes of interpreting the treaty. Vienna Convention, supra note 11, Art. 31 (3)(b).

36 SC Res. 1368, pmbl. (Sept. 12, 2001), 40 ILM 1277 (2001).

37 SC Res. 1373, supra note 15, pmbl.

38 See, e.g., UN Doc. S/PV.4370, at 2 (2001) (statement by secretary-general that “[a]ll of us condemn [the attack] and those who planned it—whoever they may be—in the strongest possible terms”).

39 See, e.g., Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971ICJ REP. 16, 22 (June 21) (using such practice to interpret the voting requirements of UN Charter Article 27(3)); Competence of the General Assembly Regarding Admission to the United Nations, Advisory Opinion, 1950 ICJ REP. 4, 9 (Mar. 3) (looking to the practice of the Security Council and the General Assembly when interpreting UN Charter provisions on admission of states to the United Nations).

40 Kooijmans Opinion, supra note 6, para. 35 (emphasis added); see also Thomas, M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks 54 (2002) Google Scholar (stating that Resolution 1368 “clearly confirms the right of victim states to treat terrorism as an armed attack”); GRAY, supra note 20, at 165 (concluding that “it seems clear from the international reaction at the time that the members of the Security Council were in fact willing to accept the use of force in self-defence by the USA in response to the terrorist attacks”); Cassese, Antonio, Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law, 12 Eur. J. INT’L L. 993, 996 (2001) Google Scholar (finding that the “events of 11 September have dramatically altered this [self-defense] legal framework”).

41 On September 12, 2001, the North Atlantic Council agreed that, if it was determined that the September 11 incidents were directed from abroad against the United States, “it shall be regarded as an action covered by Article 5 of the Washington Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all.” NATO Press Release (2001) 124, Statement by the North Atlantic Council (Sept. 12, 2001), 40 ILM 1267 (2001), available at <http://www.nato.int>; see North Atlantic Treaty, Apr. 4, 1949, Art. 5,63 Stat. 2241, 34UNTS 243 (expressly referring to the exercise of self-defense “recognized by Article 51 of” the UN Charter). On October 2, after being briefed on the known facts by the United States, the North Atlantic Council determined that it was “clear and compelling” that “the attack against the United States on 11 September was directed from abroad and shall therefore be regarded as an action covered by Article 5 of the Washington Treaty.” NATO, Statement by NATO Secretary General, Lord Robertson (Oct. 2, 2001), 40 ILM 1268 (2001), available at <http://www.nato.int>. Even at this stage, NATO did not attribute the attacks to a foreign state.

42 Terrorist Threat to the Americas, OAS Doc. RC.24/RES.1/01, OEA/Ser.F/II.24 (2001), 40 ILM 1273 (2001) (resolution of OAS ministers of foreign affairs that “these terrorist attacks against the United States of America are attacks against all American states,” triggering the reciprocal assistance provisions under the Rio Treaty).

43 As Malcolm Shaw notes, “Accordingly, the members of both these alliances accepted that what had happened on 11 September constituted an armed attack within the meaning of article 51 of the Charter.” SHAW, supra note 20, at 1028. The reactions of NATO and the OAS may be of particular interest, in that Article 51 was incorporated into the Charter at the 1945 San Francisco Conference principally as a means of accommodating the resort to self-defense by regional organizations. Brownlie, Ian, International Law and the Use of Force by States 270 (1963) Google Scholar.

44 The United States did assert that Al Qaeda was “supported by the Taliban regime in Afghanistan” and that the attacks were “made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by [Al Qaeda] as a base of operation.” Letter Dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations, Addressed to the President of the Security Council, UN Doc. S/2001/946 (Oct. 7, 2001).Yet there is nothing in the U.S. report to the Security Council, or in the views of other states at the time, reflecting a belief that imputation of the attacks to the state of Afghanistan was necessary prior to acting upon such a right of self-defense. GRAY, supra note 20, at 166.

45 Advisory Opinion, supra note 4, para. 139.

46 See generally THE 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States (2004) (providing an account of the events leading up to and including the terrorist attacks of September 11, 2001).

47 The Court spoke of where the terrorist threat originated, whereas Judge Kooijmans spoke of where the terrorist acts originated. Kooijmans Opinion, supra note 6, para. 36 (emphasis added).

48 Advisory Opinion, supra note 4, para. 139.

49 Israel Written Statement, supra note 10, at 43, para. 3.59.

50 Id. at 44, para. 3.61.

5l Kooijmans Opinion, supra note 6. para. 35.

52 For a discussion of the Achille Lauro affair, see Cassese, Antonio, Terrorism, Politics and the Law: The Achille Lauro Affair (S. J. K. Greenleaves trans., 1989 Google Scholar).

53 Invoking the right of self-defense under Article 51, Israel crossed into the Sinai in 1956 in pursuit of Palestinian terrorists and attacked Palestinian camps in Lebanon during 1970-1983 and in Tunisia in 1985. During 1976-1985, South Africa attacked camps of the Southwest Africa People’s Organization (SWAPO) in Angola, and made similar raids into Lesotho, Swaziland, and Zambia.

54 See, e.g., CASSESE, supra note 52, at 66-67 (finding the 1985 interception of the aircraft containing the Achille Lauro terrorists unjustifiable under Article 51); Cassese, supra note 38, at 996 (finding that a majority of states prior to September 11 did not accept recourse to self-defense by targeting terrorist bases in a host country).

55 FRANCK, supra note 40, at 65.

56 Letter Dated 20 August 1998 from the Permanent Representative of the United States of America to the United Nations, Addressed to the President of the Security Council, UN Doc. S/1998/780 [hereinafter U.S. Letter].

57 See Drozdiak, William, European Allies Back U.S. Strikes: Japan Says It “Understands,” Wash. Post, Aug. 21, 1998 Google Scholar, atA20.

58 Letter Dated 21 August 1998 from the Chargé d’Affaires a.i. of the Permanent Mission of Kuwait to the United Nations, Addressed to the President of the Security Council, UN Doc. S/1998/789.

59 U.S. Letter, supra note 56.

60 FRANCK, supra note 40, at 67.

61 The Court adverted to the travaux préparatoires of the 1949 Geneva Conventions in the course of its advisory opinion. Advisory Opinion, supra note 4, para. 95. Treaty interpretation, however, calls for recourse to the travaux only if the initial interpretation leads to an ambiguous or obscure meaning, or to an absurd or unreasonable result. Vienna Convention, supra note 11, Art. 32. Further, there is some authority for the proposition that, when interpreting the text of the constitution of an international organization—such as the UN Charter—the original intention of the drafters should not be emphasized, since the parties may increase or change, and because such a constitution, by its nature, should not be viewed as static. See, e.g., Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, 1962ICJ REP. 151, 185 (July 20) (Spender, [., sep. op.).

62 Kearley, Timothy, Regulation of Preventive and Preemptive Force in the United Nations Charter: A Search for Original Intent, 3 Wyo. L. Rev. 663, 693, 695-97, 699-700 (2003) Google Scholar.

63 Id. at 701 (quoting U.S. delegate Harold Stassen).

64 Written Statement Submitted by Palestine 233, para. 531 (fan. 30, 2004), Advisory Opinion, supra note 4.

65 Id., para. 532.

66 Id., para. 533.

67 Id. at 233-34, para. 534; Verbatim Record, ICJ Doc. CR 2004/1, at 44-45 (Feb. 23, 2004) (uncorrected), Advisory Opinion, supra note 4 (statement of Professor Georges Abi-Saab).

68 Israel Written Statement, supra note 10, para. 0.2.

69 See, e.g., Greenwood, Christopher, The Relationship Between ius ad Bellum and ius in Bello, 9 Rev. Int’l Stud. 221 (1983) CrossRefGoogle Scholar.

70 See UN CHARTER Art. 103.

71 Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 27, 6 UST 3516, 75 UNTS 287.

72 ICRC, Commentary on the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 207 (Jean Pictet gen. ed. 1958).

73 Advisory Opinion, supra note 4, para. 135 (“on the material before it, the Court is not convinced that the destructions carried out. . . were rendered absolutely necessary by military operations”); id., para. 140 (“In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.”).

74 Id., para. 121.

75 Buergenthal Declaration, supra note 9, para. 3.

76 Report of the Secretary-General Prepared Pursuant to General Assembly Resolution ES-10/13, UN Doc. A/ES-10/248 (2003) [hereinafter S-G Report].

77 UN Commission on Human Rights, Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the Situation of Human Rights in the Palestinian Territories Occupied by Israel Since 1967, UN Doc. E/CN.4/2004/6.

78 Dossier, Materials Compiled Pursuant to Article 65, Paragraph 2, of the Statute of the International Court of Justice (Jan. 19, 2004), Advisory Opinion, supra note 4 [hereinafter Dossier].

79 S-G Report, supra note 76, para. 4 & Annex I, para. 6.

80 UN Commission on Human Rights, supra note 77, para. 8.

81 See, e.g., Dossier, supra note 78, Doc. 46, UN Doc. S/PV.4846, at 3 (statement on October 21, 2003, of UN undersecretary-general for political affairs to the Security Council, stating that “[w]e recognize Israel’s right to defend itself against terrorist attacks”).

82 Id., Doc. 40, at 5-10 (statement of Israeli ambassador Dan Gillerman to the General Assembly, supra note 1); id., Doc. 44, at 7-12 (statement of Israeli ambassador Gillerman to the Security Council).

83 Advisory Opinion, supra note 4, para. 57.

84 Israel’s statements to the United Nations, many of which are not contained in the secretary-general’s dossier, can most easily be accessed online through Israel’s mission in New York at <http://www.israel-un.org>.

85 See, e.g., Israel Foreign Ministry Press Release, Saving Lives: Israel’s Anti-Terrorist Fence—Answers to Questions ([an. 1, 2004). Such documents are available online at <http://www.securityfence.mfa.gov.il>. Israel Ministry of Defense documents concerning the barrier are available online at <http://www.securityfence.mod.gov.il/Pages/ENG/>.

86 For an example of an Israeli government pleading in Israeli courts addressing, among other things, the placement of a portion of the barrier (filed at approximately the time of the International Court’s receipt of written pleadings for the advisory opinion), see Preliminary Response on Behalf of the Respondents (Jan. 2004), No. 9961/03, HaMoked: Center for the Defence of the Individual v. Israel (High Ct. Justice), at <http://www2.colman.ac.il/Iaw/concord/separation_barrier/articles/petition3827.pdf>. For a list of cases in Israeli courts regarding the barrier, see id. at 8-9, paras. 25-26.

87 Israeli State Comptroller, Audit Report on the Seam Area 35 (July 2002) (in Hebrew), discussed in B’Tselem, Behind the Barrier: Human Rights Violations as a Result of Israel’s Separation Barrier 26 (Mar. 2003), available at <http://www.btselem.org/Download/2003_Behind_The_Barrier_Eng.pdf> (position paper in English by Israeli human rights group). The comptroller’s report was issued a month after the Israeli government’s decision to erect the barrier.

88 Article 50 of the Court’s Statute provides that “[t]he Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.” ICJ STATUTE Art. 50. Article 67 of the Court’s rules of procedure elaborate on this mechanism in the context of contentious cases. International Court of Justice, Rules of Court, Art. 67, as amended Dec. 5, 2000, available at <http://www.icj-cij.org> [hereinafter ICJ Rules]. While the mechanism has not yet been used in the advisory opinion context, the Court’s Statute and Rules provide that, in advisory opinions, the Court shall be guided by the provisions of the Statute and Rules, “which apply in contentious cases to the extent to which it recognizes them to be applicable.” ICJ STATUTE Art. 68; ICJ Rules, supra, Art. 102(2); see 3 Rosenne, Shabtai, The Law and Practice of the International Court, 1920-1996, at 1733 (3d ed. 1997 Google Scholar) (“the Court has a broad discretion with regard to the procedure to be followed” in advisory opinions).

89 Corfu Channel, supra note 34, at 9.

90 Id. For the committee’s reports, see id. at 142, 152. In the same case, the Court also appointed two experts at the compensation stage to evaluate the damage sustained by the United Kingdom. Corfu Channel (UK v. Albania), Compensation, 1949 ICJ REP. 244, 247 (Dec. 15).

91 Resort to such fact-finding would have delayed the Court’s opinion, but perhaps only by a few weeks or months, so that the opinion could still have been rendered within a year of the General Assembly’s request. The Rules call upon the Court to accelerate its procedures when the opinion is requested on an urgent basis, ICJ Rules, supra note 88, Art. 103, as was the case in this advisory opinion. However, in the past the Court has taken as long as a year to issue an advisory opinion that had been requested at “an early date.” See SC Res. 284 (July, 29, 1970) (requesting advisory opinion relating to Namibia); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ REP. 16 (June 21).

92 See, e.g., Durward, V. Sandifer, Evidence Before International Tribunals 127 (rev. ed. 1975 Google Scholar) (observing that “the burden of proof rests upon him who asserts the affirmative of a proposition that if not substantiated will result in a decision adverse to his contention”); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ REP. 392, para. 101 (Nov. 26) (observing that “it is the litigant seeking to establish a fact who bears the burden of proving it; and in cases where evidence may not be forthcoming, a submission may in the judgment be rejected as unproved”).

93 See, e.g., Corfu Channel, supra note 34, at 18 (recognizing that indirect evidence and certain presumptions may be appropriate where evidence is under the exclusive territorial control of a state that declines to furnish it).

94 ICJ STATUTE Art. 53(1). Moreover, even in a contentious case the “non-appearance” of a state does not relieve the Court of its obligation to get the facts right; the Court must “satisfy itself. . . that the claim is well founded in fact and law.” Id., Art. 53(2). The Court has interpreted this obligation as implying “that the Court must attain the same degree of certainty as in any other case that the claim of the party appearing is sound in law, and, so far as the nature of the case permits, that the facts on which it is based are supported by convincing evidence.” Nicaragua Merits, supra note 17, para. 29.

95 ROSENNE, supra note 88, at 1733.

96 Advisory Opinion, supra note 4, paras. 49-50.

97 Status of Eastern Carelia, Advisory Opinion, 1923 PCIJ (ser. B) No. 5, at 28 (July 23) (finding that it “appears now to be very doubtful whether there would be available to the Court materials sufficient to enable it to arrive at any judicial conclusion upon the question of fact”). The Court separately declined to answer the question for a different reason—that Russia had not consented to the Permanent Court’s jurisdiction and was not even a member of the League of Nations. Id. at 27-28.

98 Advisory Opinion, supra note 4, para. 38.

99 An advisory opinion simply discussing the jus ad helium legal framework might have found that (1) construction of a barrier within one’s own territory along a border does not violate the jus ad belium; (2) construction of a barrier in occupied territory as a general matter violates the necessity prong of the jus ad belium, but might be justified as a matter of self-defense if there is a threat to the occupying power that rises to the level of an “armed attack,” and if the barrier is a necessary and proportionate response to that threat; (3) in the context of a threat from terrorist suicide bombers, an “armed attack” arises only when [the threat can be imputed to a foreign state] [the threat originates outside the occupied territory] [the gravity of the threat is comparable to that of a large scale use of force by a state] [other]; (4) in the context of such an “armed attack,” a barrier is necessary only if there is no alternative means of addressing the attack, and is proportionate only if the barrier is directed at the threat and no other objective; and (5) the Court does not have before it sufficient facts to apply these principles to the construction of the Israeli barrier. Of course, such an approach may have had a collateral effect on the ability of the Court to reach definitive factual conclusions regarding the jus in bello.

100 Higgins Opinion, supra note 8, para. 23.

101 Id.

102 Advisory Opinion, supra note 4, Separate Opinion of Judge Koroma, para. 10.