1 As Professor Watson notes, the term to be used to refer to the barrier/fence/wall was a matter of some controversy in the proceedings. Geoffrey, R. Watson, The “Wall” Decisions in Legal and Political Context, 99 AJIL 6, 7 n.3 (2005) Google Scholar (in this Agora). On this point, the International Court of Justice commented:

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 67 (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004) [hereinafter Advisory Opinion], The Court also refers to the “wall, and its associated régime” in the opinion to designate the structure and its associated regime of roads and ditch. Id., para. 82. To maintain consistency with the Court, the term “wall” shall be used in this paper.

2 All documents of the International Court cited in this paper may be obtained from the Court’s Web site, <http://www.icj-cij.org>.

3 SC Res. 1368 (Sept. 12, 2001), 40 ILM 1277 (2001); SC Res. 1373 (Sept. 28, 2001), 40 ILM at 1278.

4 EU Presidency Statement—The ICJ-Resolution—Explanation of Vote (July 20, 2004), available at <http://europa-eu-un.org/articles/es/article_3693_es.htm>. This statement refers erroneously to “the resolution contained in document A/ES-10/18”; the relevant document was UN Doc. A/ES-10/L.18/Rev.l (2004). For details of the adoption of Resolution ES-10/15, see General Assembly Press Release GA/10248 (July 20, 2004). Bulgaria, Romania, Turkey, and Croatia (European Union candidate states), Albania, Bosnia-Herzegovina, Macedonia, Serbia and Montenegro (potential candidates for EU membership), and Iceland (as a member of the European Economic Area) aligned themselves with this statement made on behalf of EU member states.

5 See, for example, the following written statements submitted in the proceedings on the Advisory Opinion, supra note 1: Written Statement of the Government of Canada 1 (Jan. 29, 2004); Statement of the Government of the Federal Republic of Germany 5-6 (Jan. 2004); Statement of the Government of Ireland 2, para. 1.4 (Jan. 2004); Written Statement of Malaysia 52-53, paras. 148-49 (Jan. 30, 2004); Statement of the Government of the Kingdom of the Netherlands 3-4, para. 8 (Jan. 30, 2004); Written Statement Submitted by Palestine 100, para. 226 (Jan. 30, 2004); Written Statement by the Government [of] the Republic of Senegal 2 (n.d.); Written Statement Submitted by the Government of the Republic of South Africa 17, para. 43 (Jan. 30, 2004). A similar view was expressed in the European Union written statement of January 30, 2004, to which the acceding states of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia aligned themselves. Subsequent references to previously cited written statements will be referred to hereinafter by country and the words Written Statement,” regardless of title.

6 Self-defense was expressly addressed in the Legal Memorandum Submitted by the Arab Republic of Egypt 39 (Jan. 2004); Written Statement of the French Republic 12-13, esp. para. 51 (Jan. 30, 2004); Written Statement Submitted by the Hashemite Kingdom of Jordan 138-42, paras. 5.264-5.277 (Jan. 30, 2004); Written Statement of Lebanon 9, para. 44 (Jan. 30, 2004); Malaysia Written Statement, supra note 5, at 52-53, paras. 146-51; Palestine Written Statement, supra note 5, at 232-34, paras. 529-34; Written Statement of the Kingdom of Saudi Arabia 19-21, paras. 31-34 (Jan. 30, 2004); Senegal Written Statement, supra note 5, at 2; South Africa Written Statement, supra note 5, at 12—18, paras. 30-34. It was considered in the oral proceedings by Palestine, ICJ Doc. CR 2004/1, at 44-45 (Feb. 23, 2004) (Prof. Georges Abi-Saab); Belize, ICJ Doc. CR 2004/3, at 26-27, paras. 40-13 (Feb. 24, 2004) (Prof. Jean-Marc Sorel); Cuba, id. at 40 (Abelardo Moreno Fernández); Jordan, id. at 56, para. 9 (Sir Arthur Watts); and the League of Arab States, ICJ Doc. CR 2004/5, at 30 (Feb. 25, 2004) (Prof. Michael Bothe).

7 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14, 110, para. 210 (June 27) [hereinafter Nicaragua].

8 Id. at 101, para. 191. This ruling was expressly affirmed bv the Court in the merits judgment of Oil. Platforms (Iran v. U.S.), 2003 ICJ REP. 161, para. 51 (Nov. 6), 42 ILM 1334 (2003).

9 Advisory Opinion, supra note 1, para. 138.

10 Id. In her separate opinion, Judge Higgins observed that she was not convinced that nonforcible measures fall within self-defense under Article 51 of the UN Charter “as that provision is normally understood.” Advisory Opinion, supra note 1, Separate Opinion of Judge Higgins, 42 ILM at 1058, para. 35 [hereinafter Higgins Opinion]. Given the emergence of nonkinetic means of warfare, such as computer network attacks, it seems certain that traditional notions of what amounts to “force” require reconsideration. On these matters, see, for example, Richard, W. Aldrich, How Do You Know You Are at War in the Information Age? 22 Hous. J. Int’l L. 223 (2000) Google Scholar; Roger, W. Barnett, Information Operations, Deterrence, and the Use of Force, Naval War C. Rev., Spring 1998, at 7 Google Scholar, available at <http://www.nwc.navy.mil/press/Review/1998/spring/artl-sp8.htm>; Joyner, C. C. & Lotrionte, C., Information Warfare as International Coercion: Elements of a Legal Framework, 12 Eur. J. Int’l.L. 825 (2001) Google Scholar; Michael, N. Schmitt, Americanum, Bellum: The U.S. View of Twenty-first Century War and Its Possible Implications for the Law of Armed Conflict, 19 Mich.J. Int’l L. 1051 (1998) Google Scholar; Michael, N. Schmitt, Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework, 37 Colum. J. Transnat’l L. 885 (1999) Google Scholar.

11 See UN Doc. A/ES-10/PV.21, at 6 (2003).

12 UN Doc. A/ES-10/248 (Nov. 24, 2003). Annex I is entitled “Summary Legal Position of the Government of Israel.” See paragraph 6, which expressly cites the Israeli permanent representative’s statement of October 20, 2003, as authority for its content.

13 Advisory Opinion, supra note 1, Declaration of Judge Buergenthal, 43 ILM at 1078, para. 4 [hereinafter Buergenthal Declaration].

14 Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, Art. 21, UN Doc. A/56/10 (2001), reprinted in Crawford, James, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 65,166–67 (2002) Google Scholar [hereinafter State Responsibility Articles]. The articles were formally adopted by the Commission on August 9,2001. They were approved, without vote, by the General Assembly in Resolution 56/83 (Dec. 12, 2001), operative paragraph 3 of which provided that the General Assembly “[t]akes note of the articles on responsibility of States for internationally wrongful acts, presented by the International Law Commission . . . and commends them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action” (emphasis omitted).

15 Written Statement of the Government of Israel on Jurisdiction and Propriety 3, para. 1.2 (Jan. 30, 2004), Advisory Opinion, supra note 1.

16 Palestine Written Statement, supra note 5, at 202, paras. 450-51 (quoting in paragraph 450 a report by Special Rapporteur John Dugard for the Commission on Human Rights, UN Doc. E/CN.4/2004/6 (2003)). See generally id. at 202-03, paras. 450-52.

17 Jordan Written Statement, supra note 6, at 139, para. 5.265.

18 Indeed, during the oral proceedings, Professor Vaughan Lowe, counsel for Palestine, adverted to “the Court’s desire to focus at this stage on law rather than facts.” ICJ Doc. CR 2004/1, supra note 6, at 50, para. 18.

19 See, e.g., Jordan Written Statement, supra note 6, at 140, para. 5.270; Malaysia Written Statement, supra note 5. at 52, para. 147; Palestine Written Statement, supra note 5, at 232, para. 531; Saudi Arabia Written Statement, supra note 6, at 19, para. 31; South Africa Written Statement, supra note 5, at 13, para. 33, & 16, para. 39.

20 See. e.g., Jordan Written Statement, supra note 6, at 141, paras. 5.274-5.275; Saudi Arabia Written Statement, supra note 6, at 19, para. 32; South Africa Written Statement, supra note 5, at 14-15, para. 36.

21 See, e.g., Jordan Written Statement, supra note 6, at 141, para. 5.275; Palestine Written Statement, supra note 5, at 223, para. 533; Saudi Arabia Written Statement, supra note 6, at 20-21, para. 34; South Africa Written Statement, supra note 5, at 14-15, para. 15; ICJ Doc. CR 2004/3, supra note 6, at 26-27, para. 43 (Prof Sorel’s oral argument on behalf of Belize).

22 See, e.g., Jordan Written Statement, supra note 6, at 140, para. 5.270.

23 ICJ Doc. CR 2004/3, supra note 6, at 57, para. 9 (Sir Arthur Watts, counsel for Jordan); see also Jordan Written Statement, supra note 6, at 144-45, paras. 5.283-5.284. Compare the South Africa Written Statement, supra note 5, at 14, para. 35, on the use of force to protect nationals.

24 .See Palestine Written Statement, supra note 5, at 233, para. 532; South Africa Written Statement, supra note 5, at 14, para. 34.

25 See South Africa Written Statement, supra note 5, at 15, para. 38. For an exposition of the accumulation-of events theory, see Greenwood, Christopher, International Law and the United States’ Air Operation Against Libya, 89 W. Va. L. Rev. 933, 953–56 (1987) Google Scholar. This theory holds that where a state suffers a series of terrorist attacks, each of which is relatively minor in its scale and effect, the legitimacy of a resort to self-defense must be assessed in terms of the whole series of attacks. II this series is sustained and coherent, as opposed to a set of sporadic incidents, the accumulation-of-events theory argues that it amounts to a continuing attack on that state. Accordingly, it need not demonstrate that another attack is imminent before it may take measures in self-defense.

In Oil Platforms, the United States invoked a similar argument to justify its attack of October 19, 1987, on the Reshadat complex as a response to the missile attack on the Sea Isle City. It claimed that this was “only the latest in a series of unlawful armed attacks by Iranian forces against, the United States.” Oil Platforms, supra note 8, para. 48. In rejecting this plea, the International Court apparently left open the validity of the accumulation-of events theory, ruling, “Even taken cumulatively . . . these incidents do not seem to the Court to constitute an armed attack on the United States.” Id., para. 64; see generally id., paras. 62-64.

26 Buergenthal Declaration, supra note 13, para. 5.

27 ICJ Doc. CR 2004/3, supra note 6, at 67, para. 48.

28 For a possible explanation of the sparse nature of the reasoning employed in this advisory opinion, see Scobbie, Iain, Smoke, Mirrors and Killer Whales: The International Court’s Opinion on the Israeli Barrier Wall, 5 German L.J. 1107 (2004) Google Scholar, available at <http://www.germanlawjournal.com>. The views expressed here modify, to a degree, my initial views on the Court’s handling of self-defense, see id. at 1125-31, principally in relation to nonforcible measures, see supra note 10.

29 Higgins Opinion, supra note 10, para. 23.

30 See, e.g., Sean, D. Murphy, Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ? 99 AJIL 62 (2005) Google Scholar (in this Agora); Wedgwood, Ruth, The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self- Defense, 99 AJIL 52 (2005) CrossRefGoogle Scholar (in this Agora).

31 Buergenthal Declaration, supra note 13, para. 6.

32 Higgins Opinion, supra note 10, para. 33 (quoting Nicaragua, supra note 7, at 103, para. 195).

33 Nicaragua, supra note 7, at 103, para. 195. For the Definition of Aggression, see GA Res. 3314 (XXIX) (Dee. 14, 1974), 69 AJIL480 (1975).

34 M Higgins Opinion, supra note 10, para. 33.

35 Advisory Opinion, supra note 1, Separate Opinion of Judge Kooijmans, 43 ILM at 1065, para. 35 [hereinafter Kooijmans Opinion].

36 Article 51, in 1 The Charter of the United Nations: A Commentary 788, 802, para. 34 (Bruno, Simma ed., 2d ed. 2002 Google Scholar) (commentary by Randelzhofer, Albrecht Google Scholar); see generally id. at 800-02.

37 Higgins Opinion, supra note 10, para. 34.

38 Kooijmans Opinion, supra note 35, para. 36.

39 Buergenthal Declaration, supra note 13, para. 6.

40 Higgins Opinion, supra note 10, para. 34.

41 Advisory Opinion, supra note 1, para. 78: see generally paras. 75-77.

42 See, e.g., HCJ 2056/04, Beit Sourik Village Council v. Israel, para. 23 (June 30, 2004) (Barak, J.), 43 ILM 1099 (2004) [hereinafter Beit Sourik]. When sitting as the High Court of Justice, the Israeli Supreme Court acts as a court of first and last instance. On the functions of the Court, see Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 10–11 (2002) Google Scholar.

43 For the view that occupation is a matter of fact, see Mcnair, Arnold & Watts, A. D. , The Legal Effects of War 368 (4th ed. 1966 Google Scholar).

44 Beit Sourik, supra note 42, para. 23. Hague Regulations annexed to the Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.

45 Hans-Peter, Gasser, Protection of the Civilian Population, in The Handbook of Humanitarian Law in Armed Conflicts 209, 256, para. 549(1) (Dieter, Fleck ed., 1995 Google Scholar).

46 This is based on the translation of the authoritative French text suggested by Schwenk. See Edmund, H. Schwenk, Legislative Power of the Military Occupant Under Article 43, Hague Regulations, 54 Yale L.J. 393, 393 n. 1 (1944-45) Google Scholar. The common translation of this article inaccurately renders the French phrase “I’ ordre et la vie publics” as “public order and safety,” as noted by, for example, Benvenisti, Eyal,The International Law of Occupation 7, 10–11 (1993) Google Scholar; Gerhard von, Glahn, Obiter Dictum: An Unofficial Expression of Opinion on the VAT Case Judgment, 1987-88 Palestinian Y.B. Int’l L. 210, 213 Google Scholar; Greenwood, Christopher, The Administration of Occupied Territory in International Law, in International Law and the Administration of Occupied Territories 241, 246 (Playfaired, Emma., 1992 Google Scholar). See also Grahame v. Director of Prosecutions, 14 Ann. Dig. 228, 232 (British Zone, Germany. Control Comm’n Ct. Crim. App. 1947).

47 The occupying power’s duty under Article 43 to ensure order extends only to the “public order and public safety in the country under occupation.” See City of Vlaardingen v. de Snayer, Ct. App., The Hague, 29 May 1951, 18 ILR 613. Accordingly, Israel’s duty under Article 43 cannot justify the construction of the wall.

48 Trial of Wilhelm List and Others (1948), 8 Law Reports of Trials of War Criminals 34, 57 (1949).

49 This is implicit in Anglo-Chinese Shipping Co. v. United States, 127 F. Supp. 553 (Ct. CI. 1955), 22ILR 982. Also, Greece’s liability as an occupying power was in issue in some of the claims presented in the Lighthouses Arbitration (Fr. v. Greece), in particular 23 ILR 659 (Perm. Ct. Arb. 1956) (regrouping of claims by the tribunal); id. at 780 (Claim No. 13); id. at 801 (Claim No. 1, first part); id. at 806 (Claim No. 8, first part). As the tribunal ruled: “Some claims arise out of acts done by agencies of Greece as occupying Power. These claims cannot in any event come within the provisions of Greek law; they depend entirely on international law.” Id. at 672.

50 Corfu Channel (UK v. Alb.), Merits, 1949 ICJ REP. 4, 22 (Apr. 9).

51 Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928) (Huber, J., sole arbitrator).

52 ICJ Doc. CR 2004/3, supra note 6, at 27, para. 43.

53 ICJ Doc. CR 2004/1, supra note 6, at 44 (Prof. Abi-Saab); see also id. at 44-45.

54 Palestine Written Statement, supra note 5, at 233-34, para. 534.

55 Advisory Opinion, supra note 1, para. 95.

56 Beit Sourik, supra note 42, para. 34.

57 Advisory Opinion, supra note 1, para. 120. Judge Buergenthal expressly concurred in this ruling in paragraph 9 of his declaration, supra note 13.

58 ICJ Doc. CR 2004/3, supra note 6, at 57, para. 9: see also Jordan Written Statement, supra note 6, at 144-45, paras. 5.283-5.284.

59 Israel Written Statement, supra note 15, at 114, para. 9.4; see also id. at 113-14, paras. 9.3-9.4.

60 State Responsibility Articles, supra note 14, Art. 25(2); CRAWFORD, supra note 14, at 178, 185.

61 Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ REP. 7, 46, para. 57 (Sept. 25).

62 James Crawford argues that the Caroline involved a plea of necessity rather than self-defense. CRAWFORD, supra note 14, at 179-80; see also Kearley, Timothy, Raising the Caroline, 17 Wis. Int’l L.J. 325 (1999) Google Scholar. Compare Maria Benvenuta, Occelli, ‘Sinking’ the Caroline: Why the Caroline Doctrine’s Restrictions on Self-Defense Should Not Be Regarded as Customary International Law, 4 San Diego Int’l L.J. 467 (2003) Google Scholar.

63 Buergenthal Declaration, supra note 13, para. 6. Resolutions 1368 and 1373 classified terrorist acts as threats to international peace and security and reaffirmed the right to self-defense in their preambular paragraphs. Further, the preamble to Resolution 1373 reaffirmed the principle established in General Assembly Resolution 2625 (XXV) (Oct. 24, 1970) (the Declaration on Friendly Relations) that “every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts.” SC Res. 1373, supra note 3, pmbl.

64 Kooijmans Opinion, supra note 35, para. 36.

65 Malaysia Written Statement, supra note 5, at 53, para. 149.

66 South Africa Written Statement, supra note 5, at 17, para. 40.

67 W., para. 41.

68 Id., para. 42.

69 Oil Platforms, supra note 8, para. 38. For the Court’s exegesis of principle, see id., paras. 51, 72-77.

70 See, for example, Symposium, Reflections on the Oil Platforms Decision, 29 Yale J. Int’l, L. 291 (2004); and in particular William, H. Taft IV, Self-Defense and the Oil Platforms Decision, id. at 295 Google Scholar; Momtaz, Djamchid, Did the Court Miss an Opportunity to Denounce the Erosion of the Principle Prohibiting the Use of Force? id. at 307 Google Scholar; Rishikof, Harvey, When Naked Came the Doctrine of “Self-Defense”: What Is the Proper Role of the International Court of Justice in Use of Force Cases? id. at 331 Google Scholar.

71 See Oil Platforms, supra note 8, Separate Opinion of Judge Higgins, 42 ILM at 1379, paras. 9-28,46,49-50, 52; Separate Opinion of Judge Parra-Aranguren, 42 ILM at 1388, paras. 5,13; Separate Opinion of Judge Kooijmans, 42 ILM at 1391, paras. 17-35; Separate Opinion of Judge Buergenthal, 42 ILM at 1404, paras. 3-32; Separate Opinion of Judge Owada, 42 ILM at 1417, paras. 2-16. See also the trenchant criticism of Sir Frank Berman, Treaty “Interpretation” in a Judicial Context, in the Yale symposium, supra note 70, at 315. It should, however, be acknowledged that several judges expressly approved and justified the examination of self-defense. See Déclaration de M. le juge Ranjeva, vice-président, 42 ILM at 1376, passim; Declaration ofjudge Koroma, 42 ILM at Vila*, passim; Dissenting Opinion of Judge Al-Khasawneh, 42 ILM at 1473, paras. 8-9; Dissenting Opinion of Judge Elaraby, 42 ILM at 1475, paras. 3.1-3.2; Separate Opinion of Judge Simma, 42 ILM at 1428, paras. 1-4.

72 Oil Platforms, Separate Opinion of Judge Higgins, supra note 71, para. 26.

73 Oil Platforms, Separate Opinion of Judge Owada, supra note 71, para. 38.

74 Id., para. 39.

75 M., para. 40.

76 Higgins Opinion, supra note 10, para. 35. On the question of the information and evidence available to the Court, see Advisory Opinion, supra note 1, paras. 55-58.

77 ICJ Doc. CR 2004/3, supra note 6, at 63, para. 32.

78 Lauterpacht, Hersch, The Development of International Law by the International Court 75 (1958).Google Scholar

79 Id.

80 The notion of unstable jurisprudence is drawn from David, L. Shapiro, In Defense of Judicial Candor, 100 Harv. L. Rev. 731, esp. 734-35, 742-43 (1987)Google Scholar. Shapiro argues that, in the analysis of decisions of collegiate courts, allowance must be made for the influence of personnel changes, the dynamics of forming a majority for both the decision and its motivation, and the fact that judges can, and do, change their minds.

81 Kooijmans Opinion, supra note 35, para. 35.

82 See Oil Platforms, Separate Opinion of Judge Owada, supra note 71, para. 38.

83 LAUTERPACHT, supra note 78, at 83.