Citation. I.C.J. Advisory Opinion, 2004 I.C.J. 136
Brief Fact Summary. The United Nations (P) objected to the wall Israel (D) put up on the Palestinian territory.
Synopsis of Rule of Law. International Law, the Fourth Geneva Convention of 1949, The Hague Convention, relevant Security Council and General Assembly resolutions were all contravened by Israel (D), the occupying power, for constructing a wall on the Palestinian occupied territory.
Issue. Were International Law, the Fourth Geneva Convention of 1949, The Hague Convention, relevant Security Council and General Assembly resolutions contravened by Israel (D), the occupying power, when it constructed a wall on the Palestinian occupied territory?
Held. Yes. International law, the Fourth Geneva Convention, The Hague Convention, relevant Security Council and General Assembly resolutions were all contravened by Israel (D), the occupying power, for constructing a wall on the Palestinian occupied territory.
This action of the Israelites (D) impaired the liberty of movement of the occupied territory with the exception of Israel’s citizens as it was enshrined under Article 12 of the International Covenant on Civil and Political Rights. The actions of Israel (D) also curtailed the Palestinians access to work, health facilities, education and an adequate standard of living under the International Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the Rights of the Child.
Although Israel (D) had through its actions contravened International Law and these conventions, both parties, that is, Israel (D) and the Palestinians are under an obligation to observe the rules of international humanitarian law. The implementation of the relevant Security Council resolutions is the only solution to the hostile situation since both sides had taken illegal actions and unilateral decisions.
Separate Opinion: (Higgins, J). The I.C.J should have looked at the bigger picture by spelling out what is required of both parties instead of looking at just a part of the conflicts between the two states. Although the protection of civilians is of paramount importance which must not be taken with levity, the construction of the wall seemed to have reduced the hostilities against Israel’s (D) citizens. No explanation could be given for the necessity and proportionality of the route selected and balanced against the hardships of the Palestinians.
Dissent. (Buergenthal, J.) Important issues of humanitarian law was raised by the construction of the wall, of which the Court ought to have declined to issue an advisory opinion because it failed to address Israel’s (D) arguments that it was willing to provide compensation and services for Palestinians residents, and that the wall was intended to be a temporary structure. Because the Court was not successful in justifying why it was not convinced that military exigencies and concern for security required Israel (D) to erect the wall along the chosen route, the Court’s conclusions are not convincing.
Discussion. The only dissenter in this case is Judge Buergenthal, who is a U.S. citizen. The U.S. was one of the eight votes against asking the I.C.J. for an advisory opinion. 74 members abstained but 90 members voted in favor.