¹ The text of the Opinion, and the representations made to the Court during the course of the proceedings, with the exception of Israel's submission that Judge Elaraby should be disqualified (see the Court's 30.01.04 Order on the composition of the Court, and Opinion para.8), may be found on the Court's website (www.icj-cij.org). For a concise summary of the Opinion, with comments on its significance, see Akram SM and Quigley J, A reading of the International Court of Justice advisory opinion on the legality of Israel's wall in the Occupied Palestinian Territories, at www.palestinecenter.org. The Court itself also issued press releases, which summarised the content of the Opinion, see ICJ Communiqué 2004/28 and Summary 2004/2. These are also available on the Court's website.Google Scholar

² Separate opinion of Judge Higgins, para.23.Google Scholar

³ The judges taking part in the Opinion were President Shi; Vice-President Ranjeva; and Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Simma and Tomka.Google Scholar

⁴ The term to be used to refer to the barrier/fence/wall was a matter of some controversy in the proceedings. In its written statement, Israel contended (para 2.7) that:Google Scholar

The use of the term “wall” in the resolution requesting an opinion is neither happenstance nor oversight. It reflects a calculated media campaign to raise pejorative connotations in the mind of the Court of great concrete constructions of separation such as the Berlin Wall, intended to stop people escaping tyranny. The reality, however, is different.Google Scholar

On this the Court commented (para.67):Google Scholar

The Court also refers to the “wall, and its associated régime” in the Opinion to designate the structure and its associated roads and ditch. See para.82. To maintain consistency with the Court, the term “wall” shall be used in this paper.Google Scholar

The Court also refers to the “wall, and its associated régime” in the Opinion to designate the structure and its associated roads and ditch. See para.82. To maintain consistency with the Court, the term “wall” shall be used in this paper.Google Scholar

⁵ Declaration of Judge Buergenthal, paras.1 and 10.Google Scholar

⁶ An analysis of the Court's assertion of competence in these proceedings is beyond the scope of this paper. For a discussion of some of these issues, written before the Opinion was delivered, see Scobbie I, Legal consequences of the construction of a wall in Occupied Palestinian Territory: request for an advisory opinion. An analysis of issues of competence and procedure, at www.soas.ac.uk/lawpeacemideast. A revised version of this paper will appear in due course.Google Scholar

⁷ Declaration of Judge Buergenthal, para.2.Google Scholar

⁸ Id. at para.4.Google Scholar

⁹ Id. at para.9.Google Scholar

¹⁰ Adopted 150-6: 10 abstentions. The States casting negative votes were Australia, the Federated States of Micronesia, Israel, the Marshall Islands, Tuvalu and the United States.Google Scholar

¹¹ In paras.145 and 146 of the Opinion, the Court noted that it had been argued that prosecutions for grave breaches could take place as a consequence of the construction of the wall, but it makes no further reference to this. Prosecutions for grave breaches were raised as a possible consequence by, for instance, France (written statement para.42) and Ireland (written statement para.2.8). The Court's silence on this question, of course, does not preclude the possibility of prosecutions should the requirements of Article 147 be met. Indeed, Article 146 makes this an obligation for the High Contracting Parties.Google Scholar

¹² Separate opinion of Judge Elaraby, para.3.3.Google Scholar

¹³ This is posted on the Court's website (www.icj-cij.org). To compare the 1976 resolution with the Court's previous practice, see G. Guyomar, La révision par la CIJ de la résolution visant la pratique interne de la Cour en matière judiciaire, 22 Annuaire français de droit international 116 (1976); Guyomay, G., Commentaire du Reglement de la Cour internationale de Justice adoptee le 14 avril 1978: interpretation et pratique 75 et seq (1983); Lillich, R.B. and White, G.E., The deliberative process of the International Court of Justice: a preliminary critique and some possible reforms, 70 American Journal of International Law 28 (1976); and Rosenne, S., Procedure in the International Court 225 et seq. (1983).Google Scholar

¹⁴ For instance, A Gros, La recherche du consensus dans les décisions de la Cour international de Justice, in Völkerrecht als Rechtsordnung Internationale Gerischtsbarkeit Menschenrechte: Festschrift für Herman Mosler (R. Bernhardt et al eds., 1983) 351; R.Y. Jennings, The internal judicial practice of the International Court of Justice, 59 British Yearbook of International Law 31 (1988); Jennings, R.Y., The collegiate responsibility and authority of the International Court of Justice, in International law at a time of perplexity: essays in honour of Shabtai Rosenne 343 (Y. Dinstein ed., 1989); Lachs, M., Le juge international à visage decouvert (les opinions et le vote), in II Estudios de derecho internacional: homenage al Profesor Miaja de la Muela 939 (A. Mostaza eds., 1979); Oda, S., The International Court of Justice viewed from the bench (1976-1983), 244 Recueil des cours 9 (1993-VIII) 126; S. Petren, Forms of expression of judicial activity, in II The future of the International Court of Justice 455 (L. Gross ed., 1976).Google Scholar

¹⁵ For instance, E. Hambro, The reasons behind the decisions of the International Court of Justice, 7 Current Legal Problems 212 (1954).Google Scholar

¹⁶ Id. 223.Google Scholar

¹⁷ Lachs employs the phrase “un dénominateur commun.” See, Lachs, supra note 14 at 949. Hambro employs the perhaps more optimistic “highest common factor.” See, Hambro, supra note 15 at 222.Google Scholar

¹⁸ Petren, supra note 14 at 450-451.Google Scholar

¹⁹ For an alleged example of this, see E. Hambro E, Dissenting and individual opinions in the International Court of Justice, 17 Zeitschrift für Öffentliches Recht und Völkerrecht 229, 247 (1956-57); Hambro, E., The Ihlen declaration revisited, in Grundeprobleme des internationalen Rechts: Festschrift für Jean Spiropoulos 227 (DS Constantopoulos et al eds., 1957).Google Scholar

²⁰ Article 57 of the Statute of the Court provides:Google Scholar

If the judgment does not represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.Google Scholar

For commentary, see, e.g., S. Rosenne, III The law and practice of the International Court, 1920-1996 1579 et seq. (3^rd ed. 1997); Hussain, I., Dissenting and separate opinions at the World Court (1984).Google Scholar

²¹ Jennings, supra note 14 at 349-350.Google Scholar

²² Opinion, para.118.Google Scholar

²³ See Opinion, paras.90-101. The position of the Government of Israel contradicts that of the Israel Supreme Court, sitting as the High Court of Justice, in cases involving the Occupied Territory, which has held Geneva Convention IV to be applicable, but not justiciable as it has not been incorporated into Israeli law. The Court noted the position of the Israel High Court in para.100, and also, in para.93, that when the IDF took control of the West Bank, the military commander assumed all governmental powers and issued an order that made proceedings before military courts subject to Geneva Convention IV. This order was subsequently revoked, as the IDF view that the Territory was occupied was incompatible with the expansionist stance adopted by many Israeli politicians. See D. Kretzmer, The occupation of justice: the Supreme Court of Israel and the Occupied Territories 32-35 (2002), and Chapter Two generally.Google Scholar

²⁴ Opinion, paras.154-160.Google Scholar

²⁵ Opinion, para.157.Google Scholar

²⁶ Opinion, para.159. Judge Higgins argued that the invocation of erga omnes obligations to justify the conclusion that a duty of non-recognition exists was superfluous and, in particular, that the claimed erga omnes nature of rules of humanitarian law was irrelevant in this connection – see her separate opinion at paras.37-39.Google Scholar

²⁷ Opinion, para.124.Google Scholar

²⁸ For instance, the Special Criminal Court of the Hague In re Fiebig (1949) ruled that:Google Scholar

it was evident that the provisions of Section II remained in operation so long as there was still active war between the invading forces and the forces of the invaded country, a period which ends with a capitulation or an armistice… After such a capitulation or armistice, while the war may continue elsewhere, it is Section III and no longer Section II which regulates the rights and obligations of the invader as Occupant.Google Scholar

(16 Annual Digest of Public International Law Cases 487 at 489). This relationship between the two Sections has also been affirmed by publicists (see, e.g., C.C. Hyde, III International law, chiefly as interpreted and applied by the United States1892-93 (2d rev. ed. 1951); L. Oppenheim, II International law: a treatise – Disputes, war and neutrality 412-417 (H. Lauterpacth ed., 7^th ed. 1952) 412-417; G. Schwarzenberger, II International law as applied by international courts and tribunals,– The law of armed conflict 266 (1968)) and by the ICRC Commentary to Article 53 of Geneva Convention IV, in Commentary to Geneva Convention IV relative to the protection of civilian persons in time of war 301 (J. Pictet ed., 1958). The Court's practice, however, makes it unlikely that it would refer expressly to the judgment of the Hague court, specific publicists, or the Pictet commentary.Google Scholar

²⁹ A/ES-10/248, Annex I, p.8, para.2.Google Scholar

³⁰ HCJ 2056/04 (30 June 2004): opinion of President Barak, para.32: available at www.court.gov.il. This case considered whether the Commander of the Israel Defence Forces in the West Bank was legally authorised to construct the wall and, if so, whether certain sections of its route were lawful. President Barak noted that the parties’ arguments had concentrated on the second issue, to the extent that the question of the wall's legality “did not receive full expression in the arguments before us” (para.25). On the basis of these arguments, the Israel High Court ruled that the petitioners had not demonstrated that the wall was unlawful (paras.26-32), and then proceeded to address the legality of its route in the areas is issue. Given the date of this judgment, it is probable that the International Court could not take it into account as the text of its Opinion would, by then, be in an advanced if not final form.Google Scholar

³¹ For these findings by the Israel High Court, see Beit Sourik Village Council, paras.23 (applicable law) and 60 (freedom of movement).Google Scholar

³² Separate opinion of Judge Kooijmans, para.1: paragraph breaks suppressed: see also paras.37-51. Paragraph 3.D of the dispositif provides:Google Scholar

All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance with Israel with international humanitarian law as embodied in that Convention.Google Scholar

³³ ICJ Reports, 1951, 71.Google Scholar

³⁴ ICJ Reports, 1950, 266.Google Scholar

³⁵ ICJ Reports, 1951, 79.Google Scholar

³⁶ Separate opinion of Judge Kooijmans, para.46.Google Scholar

³⁷ F. Kalshoven, The undertaking to respect and to ensure respect in all circumstances: from tiny seed to ripening fruit, 2 Yearbook of International Humanitarian Law 3 (1999).Google Scholar

³⁸ Separate opinion of Judge Kooijmans, para.47.Google Scholar

³⁹ Separate opinion of Judge Kooijmans, para.50.Google Scholar

⁴⁰ Ratification statistics are available on the Swiss Government's website at <www.eda.admin.ch/eda/f/home/foreign/intagr/train/iprotection.html>..>Google Scholar

⁴¹ As the ICRC Commentary notes, “The meaning of the words ‘in situations of serious violations of the Conventions or of this Protocol’ was not elucidated during the Conference” but, by comparing the terms of Article 89 with Article 90, concludes that it “refers to conduct contrary to these instruments which is of a serious nature but which is not included as such in the list of ‘grave breaches.'” See Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 1033, paras. 3588-3592 (Y. Sandoz, C. Swinarski, and B. Zimmermann eds., 1987).Google Scholar

⁴² See Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, supra note 41 at 1034, paras.3595-3596 (quotation at para. 3596).Google Scholar

⁴³ M. Sassoli and A. Bouvier, Un droit dans le guerre? 282 (2003). See id. at 282-284 generally. For exegeses of common Article 1, see Commentary to Geneva Convention IV relative to the protection of civilian persons in time of war, supra note 28 at 16;; L. Condorelli and L.B. de Chazournes LB, Quelques remarques à propos de l'obligation des États de «respecter et faire respecter» le droit international humanitaire «en toutes circonstances», in Studies and essays in honour of Jean Pictet 17 (C. Swinarski ed., 1984); Palwankar, U., Measures available to States for fulfilling their obligation to ensure respect for international humanitarian law, 298 International Review of the Red Cross 9 (1994), available at <www.icrc.org>; Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, supra note 41 at 35-37. See generally, H.P. Gasser, Ensuring respect for the Geneva Conventions and Protocols: the role of third States and the United Nations, in Effecting compliance 15 (H. Fox and M. Meyer eds.,1993). See also M. Sassòli and A. Bouvier, How does law protect in war? 231-232 (1999).;+Commentary+on+the+Additional+Protocols+of+8+June+1977+to+the+Geneva+Conventions+of+12+August+1949,+supra+note+41+at+35-37.+See+generally,+H.P.+Gasser,+Ensuring+respect+for+the+Geneva+Conventions+and+Protocols:+the+role+of+third+States+and+the+United+Nations,+in+Effecting+compliance+15+(H.+Fox+and+M.+Meyer+eds.,1993).+See+also+M.+Sassòli+and+A.+Bouvier,+How+does+law+protect+in+war?+231-232+(1999).>Google Scholar

⁴⁴ It should be recalled that Judge Higgins (separate opinion, para.39) thought that the invocation of the erga omnes nature of violations of humanitarian law in para.157 of the Opinion was “irrelevant.”Google Scholar

⁴⁵ International Law Commission, commentary to Article 54, para.3 (reproduced in J. Crawford, The International Law Commission's Articles on State responsibility: introduction, text and commentaries 302 (2002)).Google Scholar

⁴⁶ International Law Commission, commentary to Article 54, para.6 (reproduced in J. Crawford, The International Law Commission's Articles on State responsibility: introduction, text and commentaries 302 (2002)).Google Scholar

⁴⁷ Palwankar 1994, text following n.12.Google Scholar

⁴⁸ This resolution is available on the international humanitarian law database maintained on the ICRC website – <www.icrc.org/ihl>..>Google Scholar

⁴⁹ The United States voted in favour of this resolution, see 1978 Digest of United States practice in international law 1575, 1581 (1980).Google Scholar

⁵⁰ The final preambular paragraph of this resolution made express reference to common Article 1, providing:Google Scholar

Taking into account that States parties to [Geneva Convention IV] undertake, in accordance with article 1 thereof, not only to respect but also to ensure respect for the Convention in all circumstances.Google Scholar

⁵¹ Security Council resolution 681 (20 December 1990) and General Assembly resolution 45/69 (6 December 1990), adopted 141-2 (Israel; the United States) with 3 abstentions (Costa Rica; Dominica; Honduras).Google Scholar

⁵² This declaration is posted at <.http://www.eda.admin.ch/eda/e/home/foreign/hupol/4gc.html>..>Google Scholar

⁵³ 1977 Additional Protocol I, Article 1.3: it must be noted that Israel is neither a signatory nor party to Additional Protocol I.Google Scholar

⁵⁴ Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, supra note 41 at 36, para. 42. For the relevant passage regarding Convention IV, see Commentary to Geneva Convention IV relative to the protection of civilian persons in time of war, supra note 28 at 16‥Google Scholar

⁵⁵ Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, supra note 41 at 36, para. 43-44‥Google Scholar

⁵⁶ Opinion, para.138.Google Scholar

⁵⁷ This is re-affirmed in Article 21 of the International Law Commission's 2001 Articles on Responsibility of States for Internationally Wrongful Acts.Google Scholar

⁵⁸ Opinion, para.139.Google Scholar

⁵⁹ Bulgaria, Romania, Turkey and Croatia (EU candidate States), Albania, Bosnia and Herzrgovina, 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.Google Scholar

⁶⁰ Separate opinion of Judge Kooijmans, para.35.Google Scholar

⁶¹ See Military and paramilitary activities in and against Nicaragua case: merits judgment, ICJ Reports, 1986, 14 at 103, para.195.Google Scholar

⁶² Separate opinion of Judge Higgins, para.33. Judge Higgins’ objections to the ruling in the Nicaragua case are set out in R. Higgins, Problems and process: international law and how we use it 250-251 (1994).Google Scholar

⁶³ Separate opinion of Judge Kooijmans, para.36.Google Scholar

⁶⁴ Separate opinion of Judge Higgins, para.34.Google Scholar

⁶⁵ Oppenheim-Lauterpacht 1952 187-188.Google Scholar

⁶⁶ Separate opinion of Judge Higgins, para.35.Google Scholar

⁶⁷ See, e.g. „para.1 of the International Law Commission's Commentary to Article 21 of its 2001 Articles on Responsibility of States for Internationally Wrongful Acts: Crawford 2002 166; and Randelzhofer A, Commentary to Article 51, in Simma B(Ed), The Charter of the United Nations: a commentary (Oxford UP: Oxford: 2002, 2nd edn) 789, para.3.Google Scholar

⁶⁸ Y. Dinstein, War, aggression and self-defence 161 (3^rd ed. 2001) (citation omitted).Google Scholar

⁶⁹ Id. at 160 (citations omitted).Google Scholar

⁷⁰ In its Commentary to the 2001 Articles, the International Law Commission expressly identified “the obligation to respect the right of self-determination” as a peremptory norm – see Commentary to Article 40, para.5: Crawford 2002 246-247.Google Scholar

⁷¹ Opinion, para.134.Google Scholar

⁷² Opinion, para.122.Google Scholar

⁷³ Opinion, para.132. Article 46 of the Hague Regulations provides, in part, “Private property cannot be confiscated”. Article 53 of Convention IV provides:Google Scholar

Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organisations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.Google Scholar

The Court further ruled that the requirements of the final clause of Article 53 had not been met, and noted that Article 46 contained no qualifying provision – see Opinion, para.135.Google Scholar

⁷⁴ HCJ 2056/04 (30 June 2004): opinion of President Barak, para.34.Google Scholar