Should the International Court of Justice Give an Advisory Opinion on Israel’s Separation Fence?

Vol. 3, No. 18      February 23, 2004

• Since the Palestinians could not sue Israel in the International Court of Justice (ICJ) as a contentious case – because the Palestinians are not a state and because Israel has not agreed to the jurisdiction of the court – the Palestinians used their influence in the General Assembly, which then asked for an advisory opinion.

• The emergency special session of the General Assembly was convened in accordance with the Uniting for Peace resolution of 1950, according to which certain conditions have to be fulfilled before the General Assembly can act, and these conditions have not been fulfilled in the present case.

• In addition, the question is already being dealt with by the Security Council, which has adopted the “road map.” The request for an advisory opinion undermines the road map and the attempts to find a comprehensive solution to the Israeli-Palestinian dispute.

On 20 November 2003 the UN General Assembly requested the ICJ to give an advisory opinion on the 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….” Israel is of the opinion that the court does not have jurisdiction to deal with this question. Even if it had jurisdiction, the court should refrain from exercising it – as will be explained below.

The International Court of Justice

The ICJ is the principal judicial organ of the UN. It was established in 1922 at the time of the League of Nations, and was renewed in 1946. The court has two kinds of functions:

1. To settle disputes between states by binding judgments; this function may be exercised only if both states have agreed to the submission of the case to the court
2. To give advisory opinions on legal questions submitted to it by a major organ of the UN or another international organization (the “specialized agencies”) authorized thereto by the UN General Assembly. Advisory opinions are not binding.¹ Moreover, the court may refuse to give a certain opinion – it is a discretionary power.

Background of the Case

On 21 October 2003 the UN General Assembly adopted a resolution which demanded that “Israel stop and reverse” the building of the fence which, according to the General Assembly, “is in contradiction” of international law (an earlier similar proposal had been vetoed in the Security Council). Since Israel had not complied with this request, the General Assembly asked the ICJ for an advisory opinion on the above quoted question. It should be noted that the question speaks of a “wall” while the barrier is mainly a fence, and only about 5% of it is in the form of a wall.

In this case, the Palestinians could not sue Israel in the court as a contentious case between states, first, because the Palestinians are not a state, and secondly, because Israel has not agreed to the jurisdiction of the court. In order to circumvent this problem, the Palestinians used their influence in the General Assembly, which then asked for an advisory opinion.

The Nature of the Fence

The fence does not involve any annexation; it was established for security reasons. The land used was not confiscated but requisitioned for three years. Rent is being paid for the land.

Why Should the Court Refuse to Give an Advisory Opinion?

Interestingly, in thirty of the close to fifty written statements submitted to the court on this issue, the opinion has been expressed that the court should not give an opinion. Even in some statements that question the legality of the fence, the authors nevertheless advise against the exercise of jurisdiction by the court.

The main arguments by Israel against the exercise of jurisdiction may be summarized as follows:

1. The General Assembly acted ultra vires in requesting an advisory opinion, since the conditions for action by the General Assembly under the 1950 Uniting for Peace resolution did not exist.
2. The subject is mainly of a political nature and therefore should be dealt with by diplomatic and political means.
3. The request undermines the Security Council, which had adopted the 2003 road map sponsored by the U.S., Russia, the UN, and the EU.
4. The fence is one issue in the larger Israeli-Palestinian conflict. Picking out this single item undermines the efforts to reach a comprehensive solution.
5. Since the General Assembly itself had already decided on the legality of the fence, it seems superfluous to submit the question to the ICJ.
6. This is an attempt to make the court decide a contentious case by means of an advisory opinion.
7. The reputation of the court itself may suffer if it gets involved in such a highly political matter.

The Attitude of Israel

Israel has submitted to the ICJ a detailed written statement dealing with the question of jurisdiction and the propriety of giving an advisory opinion. As a background, the statement also describes the factual situation – the serious and terrible terrorist acts which the fence should prevent or at least reduce.

However, Israel has decided not to participate in the oral hearings foreseen for 23-25 February, for several reasons:

1. Israel’s participation in the proceedings could be interpreted as recognition of the court’s jurisdiction in the matter.
2. Such participation could also induce the Palestinians and their allies to transform the case into a public relations show denying Israel’s right to exist, as happened in Durban (South Africa) at the Conference against Racism.
3. Israel has stated and explained all its arguments in the written statement.

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Note

1. Only when acting as an appellate court against decisions of the UN Administrative Tribunal – i.e., disputes between the UN and its employees – are the advisory opinions binding.

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Ruth Lapidoth is a Fellow of the Jerusalem Center for Public Affairs, Professor Emeritus of International Law at the Hebrew University of Jerusalem, and Professor at the Law School of the College of Management. Her books include The Arab-Israel Conflict and Its Resolution: Selected Documents (1992), The Jerusalem Question and Its Resolution: Selected Documents (1994), Autonomy: Flexible Solutions to Ethnic Conflicts (1997), and The Old City of Jerusalem (2002). She is also the author of “Legal Aspects of the Palestinian Refugee Question,” Jerusalem Viewpoints No. 485 (September 2002). In 2000 she received the “Prominent Woman in International Law Award” from the WILIG group of the American Society of International Law. This Jerusalem Issue Brief is based on her presentation at the Institute for Contemporary Affairs in Jerusalem on February 2, 2004.