Civile

sabato 10 luglio 2004

La decisione della Corte Internazionale dell’ Aja sull’ illegittimità del muro israeliano in Cisgiordania (testo originale in inglese)

La decisione della Corte Internazionale dell’Aja sull’illegittimità del
muro israeliano in Cisgiordania (testo originale in inglese)

INTERNATIONAL COURT OF JUSTICE

YEAR 2004

2004

9 July General List

9 July 2004

No. 131

LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A
WALL

IN THE OCCUPIED PALESTINIAN TERRITORY

Jurisdiction of the Court to give the advisory
opinion requested.

Article 65, paragraph 1, of the
Statute ~ Article 96, paragraph 1, of the Charter ~ Power of General Assembly
to request advisory opinions ~ Activities of Assembly.

Events leading to the adoption of
General Assembly resolution ES-10/14 requesting the advisory opinion.

Contention that General Assembly acted ultra
vires under the Charter ~ Article 12, paragraph 1, and Article 24 of the
Charter ~United Nations practice concerning the interpretation of Article 12,
paragraph 1, of Charter ~General Assembly did not exceed its competence.

Request for opinion adopted by the Tenth
Emergency Special Session of the General Assembly ~ Session convened pursuant
to resolution 377 A (V) (“Uniting for Peace”) ~ Conditions set by that
resolution ~ Regularity of procedure followed.

Alleged lack of clarity of the terms of the
question ~Purportedly abstract nature of the question
~ Political aspects of the question ~Motives said to have inspired the request
and opinion’s possible implications ~ “Legal” nature of question unaffected.

Court having jurisdiction to give advisory
opinion requested.

* *

Discretionary power of Court to
decide whether it should give an opinion.

Article 65, paragraph 1, of Statute ~Relevance
of lack of consent of a State concerned ~ Question cannot be regarded only as a
bilateral matter between Israel and Palestine but is directly of concern to the
United Nations ~Possible effects of opinion on a political, negotiated solution
to the Israeli-Palestinian conflict ~ Question representing only one aspect of
Israeli-Palestinian conflict ~Sufficiency of information and evidence available
to Court ~ Useful purpose of opinion ~ Nullus commodum capere potest de sua
injuria propria ~ Opinion to be given to the General Assembly, not to a specific
State or entity.

No “compelling reason” for Court to use its
discretionary power not to give an advisory opinion.

“Legal consequences” of the construction of a
wall in the Occupied Palestinian Territory, including in and around East
Jerusalem ~ Scope of question posed ~ Request for opinion limited to the legal
consequences of the construction of those parts of the wall situated in
Occupied Palestinian Territory ~ Use of the term “wall”.

Historical background. Description of
the wall. Applicable law.

United Nations Charter ~ General Assembly
resolution 2625 (XXV) ~ Illegality of any territorial acquisition resulting
from the threat or use of force ~Right of peoples to self-determination.

International humanitarian law ~Regulations
annexed to the Fourth Hague Convention of 1907 ~ Fourth Geneva Convention of
1949 ~Applicability of Fourth Geneva Convention in the Occupied Palestinian
Territory ~ Human rights law ~ International Covenant on Civil and Political
Rights ~International Covenant on Economic, Social and Cultural Rights ~
Convention on the Rights of the Child ~ Relationship between international
humanitarian law and human rights law ~ Applicability of human rights
instruments outside national territory ~ Applicability of those instruments in
the Occupied Palestinian Territory.

Settlements established by Israel in breach of
international law in the Occupied Palestinian Territory ~ Construction of the
wall and its associated régime create a “fait accompli” on the ground that
could well become permanent ~Risk of situation tantamount to de facto
annexation ~ Construction of the wall severely impedes the exercise by the
Palestinian people of its right to self-determination and is therefore a breach
of Israel’s obligation to respect that right.

Applicable provisions of international
humanitarian law and human rights instruments relevant to the present case ~
Destruction and requisition of properties ~ Restrictions on freedom of movement
of inhabitants of the Occupied Palestinian Territory ~ Impediments to the
exercise by those concerned of the right to work, to health, to education and
to an adequate standard of living ~Demographic changes in the Occupied
Palestinian Territory ~Provisions of international humanitarian law enabling
account to be taken of military exigencies ~Clauses in human rights instruments
qualifying rights guaranteed or providing for derogation ~Construction of the
wall and its associated régime cannot be justified by military exigencies or by
the requirements of national security or public order ~ Breach by Israel of
various of its obligations under the applicable provisions of international
humanitarian law and human rights instruments.

Self-defence ~ Article 51 of the Charter
~Attacks against Israel not imputable to a foreign State ~ Threat invoked to
justify the construction of the wall originating within a territory over which
Israel exercises control ~ Article 51 not relevant in the present case.

State of necessity ~ Customary
international law ~ Conditions ~ Construction of the wall not the only means to
safeguard Israel’s interests against the peril
invoked.

Construction of the wall and its associated
régime are contrary to international law. Legal consequences
of the violation by Israel of its
obligations.

Israel’s international responsibility ~Israel
obliged to comply with the international obligations it has breached by the
construction of the wall ~Israel obliged to put an end to the violation of its
international obligations ~Obligation to cease forthwith the works of
construction of the wall, to dismantle it forthwith and to repeal or render
ineffective forthwith the legislative and regulatory acts relating to its
construction, save where relevant for compliance by Israel with its obligation
to make reparation for the damage caused ~ Israel obliged to make reparation
for the damage caused to all natural or legal persons affected by construction
of the wall.

Legal consequences for States other than Israel
~ Erga omnes character of certain obligations violated by Israel ~ Obligation
for all States not to recognize the illegal situation resulting from
construction of the wall and not to render aid or assistance in maintaining the
situation created by such construction ~Obligation for all States, while
respecting the Charter and international law, to see to it that any impediment,
resulting from the construction of the wall, to the exercise by the Palestinian
people of its right to self-determination is brought to an end ~ Obligation for
all States parties to the Fourth Geneva Convention, while respecting the
Charter and international law, to ensure compliance by Israel with
international humanitarian law as embodied in that Convention ~ Need for the
United Nations, and especially the General Assembly and the Security Council,
to consider what further action is required to bring to an end the illegal
situation resulting from the construction of the wall and its associated
régime, taking due account of the Advisory Opinion.

Construction of the wall must be placed in a
more general context ~ Obligation of Israel and Palestine scrupulously to
observe international humanitarian law ~ Implementation in good faith of all relevant
Security Council resolutions, in particular resolutions 242 (1967) and 338
(1973) ~ “Roadmap” ~Need for efforts to be encouraged with a view to achieving
as soon as possible, on the basis of international law, a negotiated solution
to the outstanding problems and the establishment of a Palestinian State,
with peace and security for all in
the region.

ADVISORY OPINION

Present: President SHI; Vice-President RANJEVA;
Judges GUILLAUME, KOROMA, VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOIJMANS, REZEK, AL-KHASAWNEH, BUERGENTHAL, ELARABY,
OWADA, SIMMA, TOMKA; Registrar COUVREUR.

On the legal consequences of the construction
of a wall in the Occupied Palestinian Territory,

THE COURT,

Composed as above,

Gives the following Advisory Opinion:

1. The question on which the advisory opinion
of the Court has been requested is set forth in resolution ES-10/14 adopted by
the General Assembly of the United Nations (hereinafter the “General Assembly”)
on 8 December 2003 at its Tenth Emergency Special Session.
By a letter dated 8 December 2003 and received in the Registry by
facsimile on 10 December 2003, the original of which reached the
Registry subsequently, the Secretary-General of the United Nations officially
communicated to the Court the decision taken by the General Assembly to submit
the question for an advisory opinion. Certified true copies of the English and
French versions of resolution ES-10/14 were enclosed with the letter. The
resolution reads as follows:

“The General Assembly,

Reaffirming its resolution ES-10/13 of 21
October 2003,
Guided by the principles of the Charter of the United Nations,

Aware of the established principle of
international law on the inadmissibility of the acquisition of territory by
force,

Aware also that developing friendly relations
among nations based on respect for the principle of equal rights and
self-determination of peoples is among the purposes and principles of the
Charter of the United Nations,

Recalling relevant General Assembly resolutions,
including resolution 181 (II) of 29 November 1947, which partitioned mandated Palestine into two States, one Arab and one
Jewish,

Recalling also the resolutions of the tenth
emergency special session of the General Assembly, Recalling further relevant
Security Council resolutions, including resolutions 242 (1967) of 22 November
1967, 338 (1973) of 22 October 1973, 267 (1969) of 3 July 1969, 298 (1971) of
25 September 1971, 446 (1979) of 22 March 1979, 452 (1979) of 20 July 1979, 465
(1980) of 1 March 1980, 476 (1980) of 30 June 1980, 478 (1980) of 20 August
1980, 904 (1994) of 18 March 1994, 1073 (1996) of 28 September 1996, 1397
(2002) of 12 March 2002 and 1515 (2003) of 19 November 2003,

Reaffirming the applicability of the Fourth
Geneva Convention1 as well as Additional Protocol I to the Geneva Conventions2
to the Occupied Palestinian Territory, including East Jerusalem,

Recalling the Regulations annexed to the Hague
Convention Respecting the Laws and Customs of War on Land of 19073,

Welcoming the convening of the Conference of
High Contracting Parties to the Fourth Geneva Convention on measures to enforce
the Convention in the Occupied Palestinian Territory, including Jerusalem, at Geneva on 15 July
1999,

Expressing its support for the declaration
adopted by the reconvened Conference of High Contracting Parties at Geneva on 5 December
2001,

Recalling in particular relevant United Nations
resolutions affirming that Israeli settlements in the Occupied Palestinian
Territory, including East Jerusalem, are illegal and an obstacle to peace and
to economic and social development as well as those demanding the complete
cessation of settlement activities,

Recalling relevant United Nations resolutions
affirming that actions taken by Israel, the occupying Power, to change the
status and demographic composition of Occupied East Jerusalem have no legal
validity and are null and void,

Noting the agreements reached between the
Government of Israel and the Palestine Liberation Organization in the context
of the Middle
East peace
process,

Gravely concerned at the commencement and
continuation of construction by Israel, the occupying Power, of a wall in the
Occupied Palestinian Territory, including in and around East Jerusalem, which
is in departure from the Armistice Line of 1949 (Green Line) and which has
involved the confiscation and destruction of Palestinian land and resources,
the disruption of the lives of thousands of protected civilians and the de
facto annexation of large areas of territory, and underlining the unanimous
opposition by the international community to the construction of that wall,

Gravely concerned also at the even more
devastating impact of the projected parts of the wall on the Palestinian
civilian population and on the prospects for solving the Palestinian-Israeli
conflict and establishing peace in the region,

Welcoming the report of 8
September 2003 of the Special Rapporteur of the Commission on Human Rights on the
situation of human rights in the Palestinian territories occupied by Israel since 19674, in particular the
section

regarding the wall,

Affırming the necessity of ending the
conflict on the basis of the two-State solution of Israel and Palestine living
side by side in peace and security based on the Armistice Line of 1949, in
accordance with relevant Security Council and General Assembly resolutions,

Having received with appreciation the report of
the Secretary-General, submitted in accordance with resolution ES-10/135,

Bearing in mind that the passage of time
further compounds the diffıculties on the ground, as Israel, the occupying
Power, continues to refuse to comply with international law Vis-à-Vis its
construction of the above-mentioned wall, with all its detrimental implications
and consequences,

Decides, in accordance with Article 96 of the
Charter of the United Nations, to request the International Court of Justice,
pursuant to Article 65 of the Statute of the Court, to urgently render an
advisory opinion on the following 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, including in and around East Jerusalem, as
described in the report of the Secretary-General, considering the rules and
principles of international law, including the Fourth Geneva Convention of
1949, and relevant Security Council and General Assembly resolutions?

lUnited Nations, Treaty Seňes, Vol.
75, No. 973. Zlbid., Vol. 1125, No. 17512.

3See Carnegie Endowment for
International Peace, 77ıe Hague Conventions and Declarations of 1899 and
1907 (New York, Oxford University Press, 1915). 4E/CN.4/2004/6.

SA/ES-10/248."

Also enclosed with the letter were the
certified English and French texts of the report of the Secretary-General dated
24 November 2003, prepared pursuant to General
Assembly resolution ES-10/13 (A/ES-10/248), to which resolution ES-10/14 makes
reference.

2. By letters dated 10
December 2003,
the Registrar notifıed the request for an advisory opinion to all States
entitled to appear before the Court, in accordance with Article 66, paragraph
1, of the Statute.

3. By a letter dated 11
December 2003,
the Governnıent of Israel informed the Court of its position on the
request for an advisory opinion and on the procedure to be followed.

4. By an Order of 19 December 2003, the Court
decided that the United Nations and its Member States were likely, in
accordance with Article 66, paragraph 2, of the Statute, to be able to furnish
information on all aspects raised by the question submitted to the Court for an
advisory opinion and fıxed 30 January 2004 as the time-limit within which
written statements might be submitted to it on the question in accordance with
Article 66, paragraph 4, of the Statute. By the same Order, the Court further
decided that, in the light of resolution ES-10/14 and the report of the
Secretary-General transmitted with the request, and taking into account the
fact that the General

Assembly had granted Palestine a special status of observer and
that the latter was co-sponsor of the draft resolution requesting the advisory
opinion, Palestine might also submit a written statement on the
question within the above time-limit.

5. By the aforesaid Order, the Court also
decided, in accordance with Article 105, paragraph 4, of the Rules of Court, to
hold public hearings during which oral statements and comments might be
presented to it by the United Nations and its Member States, regardless of
whether or not they had submitted written statements, and fixed 23 February
2004 as the date for the opening of the said hearings. By the same Order, the
Court decided that, for the reasons set out above (see paragraph 4), Palestine might also take part in the
hearings. Lastly, it invited the United Nations and its Member States, as well as Palestine, to inform the Registry, by 13
February 2004
at the latest, if they were intending to take part in the above-mentioned
hearings. By letters of 19 December 2004, the Registrar informed them of the
Court’s decisions and transmitted to them a copy of the Order.

6. Ruling on requests submitted subsequently by
the League of Arab States and the Organization of the Islamic Conference, the
Court decided, in accordance with Article 66 of its Statute, that those two
international organizations were likely to be able to furnish information on
the question submitted to the Court, and that consequently they might for that
purpose submit written statements within the time-limit fixed by the Court in
its Order of 19 December 2003 and take part in the hearings.

7. Pursuant to Article 65, paragraph 2, of the
Statute, the Secretary-General of the United Nations communicated to the Court
a dossier of documents likely to throw light upon the question.

8. By a reasoned Order of 30 January 2004
regarding its composition in the case, the Court decided that the matters
brought to its attention by the Government of Israel in a letter of 31 December
2003, and in a confidential letter of 15 January 2004 addressed to the
President pursuant to Article 34, paragraph 2, of the Rules of Court, were not
such as to preclude Judge Elaraby from sitting in the case.

9. Within the time-limit fixed by the Court for
that purpose, written statements were filed by, in order of their receipt:
Guinea, Saudi Arabia, League of Arab States, Egypt, Cameroon, Russian
Federation, Australia, Palestine, United Nations, Jordan, Kuwait, Lebanon,
Canada, Syria, Switzerland, Israel, Yemen, United States of America, Morocco,
Indonesia, Organization of the Islamic Conference, France, Italy, Sudan, South
Africa, Germany, Japan, Norway, United Kingdom, Pakistan, Czech Republic,
Greece, Ireland on its own behalf, Ireland on behalf of the European Union,
Cyprus, Brazil, Namibia, Malta, Malaysia, Netherlands, Cuba, Sweden, Spain,
Belgium, Palau, Federated States of Micronesia, Marshall Islands, Senegal,
Democratic People’s Republic of Korea. Upon receipt of those statements, the
Registrar transmitted copies thereof to the United Nations and its Member States, to Palestine, to the League of Arab States and
to the Organization of the Islamic Conference.

10. Various communications were addressed to
these latter by the Registry, concerning in particular the measures taken for
the organization of the oral proceedings. By communications of 20
February 2004,
the Registry transmitted a detailed timetable of the hearings to those of the
latter who, within the time-limit fixed for that
purpose by the Court, had expressed their intention of taking part in the
aforementioned proceedings.

11. Pursuant to Article 106 of the Rules of
Court, the Court decided to make the

For Palestine:

For the People’s Republic of Bangladesh: the Netherlands;

For Belize:

For the Republic of Cuba:

For the Republic of Indonesia:

written statements accessible to the
public, with effect from the opening of the oral proceedings.

12. In the course of hearings held from 23 to 25
February 2004,
the Court heard oral statements, in the following order, by:

H.E. Mr. Nasser Al-Kidwa, Ambassador, Permanent
Observer of Palestine to the United Nations,

For the Republic of South Africa:

Ms Stephanie Koury, Member, Negotiations
Support Unit, Counsel,

Mr. James Crawford, S.C., Whewell Professor of
International Law, University of Cambridge, Member of the Institute of
International Law, Counsel and Advocate,

Mr. Georges Abi-Saab, Professor of
International Law, Graduate Institute of International Studies, Geneva, Member
of the Institute of International Law, Counsel and Advocate,

Mr. Vaughan Lowe, Chichele Professor of
International Law, University of Oxford, Counsel and Advocate,

Mr. Jean Salmon, Professor Emeritus of
International Law, Université libre de Bruxelles, Member of the Institute of International Law, Counsel and Advocate;

H.E. Mr. Aziz Pahad, Deputy Minister for
Foreign Affairs, Head of Delegation,

For the People’s Democratic Republic of
Algeria:

Judge M. R. W. Madlanga, S.C.;

Mr. Ahmed Laraba, Professor of International
Law;

For the Kingdom of Saudi Arabia: H.E. Mr. Fawzi
A. Shobokshi, Ambassador and Permanent Representative of the Kingdom of Saudi
Arabia to the United Nations in New York, Head of Delegation;

H.E. Mr. Liaquat Ali Choudhury, Ambassador of
the People’s Republic of Bangladesh to the Kingdom of

Mr. Jean-Marc Sorel, Professor at the University of Paris I (Panthéon-Sorbonne);

H.E. Mr. Abelardo Moreno Fernández, Deputy
Minister for Foreign Affairs;

H.E. Mr. Mohammad Jusuf, Ambassador of the

For the Republic of

Madagascar: H.E. Mr. Alfred Rambeloson,
Permanent Representative of Madagascar to the Office of the United Nations
at Geneva and to the Specialized Agencies,
Head of Delegation;

For the Republic of Senegal: For the Republic of the Sudan: For the League of Arab States:

For the Organization of the the

Islamic Conference:

Law, Counsel.

Republic of Indonesia to the Kingdom of the Netherlands, Head of Delegation;

For the Hashemite Kingdom H.R.H. Ambassador
Zeid Ra’ad Zeid Al-Hussein, of Jordan: Permanent Representative of the
Hashemite Kingdom of Jordan
to the United Nations, New York, Head of Delegation,

Sir Arthur Watts, K.C.M.G., Q.C., Senior Legal
Adviser to the Government of the Hashemite Kingdom of Jordan;

For Malaysia: H.E. Datuk Seri Syed Hamid
Albar, Foreign Minister of Malaysia, Head of
Delegation;

H.E. Mr. Saliou Cissé, Ambassador of the Republic of Senegal to the Kingdom of the Netherlands, Head of Delegation;

H.E. Mr. Abuelgasim A. Idris, Ambassador of the
Republic of the Sudan to the Kingdom of the Netherlands;

Mr. Michael Bothe, Professor of Law, Head of
the Legal Team;

H.E. Mr. Abdelouahed Belkeziz, Secretary
General of Organization of the Islamic Conference,

Ms Monique Chemillier-Gendreau, Professor of
Public University of Paris VII-Denis Diderot, as

*13. When seised of a request for an advisory
opinion, the Court must first consider whether it has jurisdiction to give the
opinion requested and whether, should the answer be in the affirmative, there
is any reason why it should decline to exercise any such jurisdiction (see
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996 (I), p. 232, para. 10).

14. The Court will thus first address the
question whether it possesses jurisdiction to give the advisory opinion
requested by the General Assembly on 8 December 2003. The competence of the Court in
this regard is based on Article 65, paragraph 1, of its Statute, according to
which the Court “may give an advisory opinion on any legal question at the
request of whatever body may be authorized by or in accordance with the Charter
of the United Nations to make such a request”. The Court has already had
occasion to indicate that:

“It is . . . a precondition of the Court’s
competence that the advisory opinion be requested by an organ duly authorized
to seek it under the Charter, that it be requested on a legal question, and
that, except in the case of the General Assembly or the Security Council, that
question should be one arising within the scope of the activities of the
requesting organ.” (Application for Review of Judgement No. 273 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, pp.
333-334, para. 21.)

15. It is for the Court to satisfy itself that
the request for an advisory opinion comes from an organ or agency having
competence to make it. In the present instance, the Court notes that the
General Assembly, which seeks the advisory opinion, is authorized to do so by
Article 96, paragraph 1, of the Charter, which provides: “The General Assembly
or the Security Council may request the International Court of Justice to give
an advisory opinion on any legal question.”

16. Although the above-mentioned provision
states that the General Assembly may seek an advisory opinion “on any legal
question”, the Court has sometimes in the past given certain indications as to
the relationship between the question the subject of a request for an advisory
opinion and the activities of the General Assembly (Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 70;
Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), pp.
232 and 233, paras. 11 and 12).

17. The Court will so proceed in the present
case. The Court would observe that Article 10 of the Charter has conferred upon
the General Assembly a competence relating to “any questions or any matters”
within the scope of the Charter, and that Article 11, paragraph 2, has
specifically provided it with competence on “questions relating to the
maintenance of international peace and security brought before it by any Member
of the United Nations . . .” and to make recommendations under certain
conditions fixed by those Articles. As will be explained below, the question of
the construction of the wall in the Occupied Palestinian Territory was brought before

the General Assembly by a number of Member States
in the context of the Tenth Emergency Special Session of the Assembly, convened
to deal with what the Assembly, in its resolution ES-10/2 of 25
April 1997,
considered to constitute a threat to international peace and security.

*

18. Before further examining the problems of
jurisdiction that have been raised in the present proceedings, the Court
considers it necessary to describe the events that led to the adoption of
resolution ES-10/14, by which the General Assembly requested an advisory
opinion on the legal consequences of the construction of the wall in the
Occupied Palestinian Territory. 19. The Tenth Emergency Special Session of the
General Assembly, at which that resolution was adopted, was first convened
following the rejection by the Security Council, on 7 March and 21 March 1997,
as a result of negative votes by a permanent member, of two draft resolutions
concerning certain Israeli settlements in the Occupied Palestinian Territory
(see, respectively, S/1997/199 and S/PV.3747, and S/1997/241 and S/PV.3756). By
a letter of 31 March 1997, the Chairman of the Arab Group then requested “that
an emergency special session of the General Assembly be convened pursuant to
resolution 377 A (V) entitled ‘Uniting for Peace’” with a view to discussing
“Illegal Israeli actions in occupied East Jerusalem and the rest of the
Occupied Palestinian Territory” (letter dated 31 March 1997 from the Permanent
Representative of Qatar to the United Nations addressed to the
Secretary-General, A/ES-10/1, 22 April 1997, Annex). The majority of Members of
the United Nations having concurred in this request, the first meeting of the
Tenth Emergency Special Session of the General Assembly took place on 24
April 1997
(see A/ES-10/1, 22 April 1997). Resolution ES-10/2 was adopted
the following day; the General Assembly thereby expressed its conviction that:

“the repeated violation by Israel, the
occupying Power, of international law and its failure to comply with relevant
Security Council and General Assembly resolutions and the agreements reached
between the parties undermine the Middle East peace process and constitute a
threat to international peace and security”,

and condemned the “illegal Israeli actions” in
occupied East
Jerusalem
and the rest of the Occupied Palestinian Territory, in particular the construction of
settlements in that territory. The Tenth Emergency Special Session was then
adjourned temporarily and has since been reconvened 11 times (on 15 July 1997,
13 November 1997, 17 March 1998, 5 February 1999, 18 October 2000, 20 December
2001, 7 May 2002, 5 August 2002, 19 September 2003, 20 October 2003 and 8
December 2003).

20. By a letter dated 9 October 2003, the
Chairman of the Arab Group, on behalf of the States Members of the League of
Arab States, requested an immediate meeting of the Security Council to consider
the “grave and ongoing Israeli violations of international law, including
international humanitarian law, and to take the necessary measures in this
regard” (letter of 9 October 2003 from the Permanent Representative of the
Syrian Arab Republic to the United Nations to the President of the Security
Council, S/2003/973, 9 October 2003). This letter was accompanied by a draft
resolution for consideration by the Council, which condemned as illegal the
construction by Israel of a wall in the Occupied Palestinian Territory departing from the Armistice Line
of 1949. The Security Council held its 4841st and 4842nd meetings on 14
October 2003
to consider the item entitled “The situation in the Middle East, including the Palestine question”. It then had before it
another draft resolution proposed on the same day by Guinea, Malaysia, Pakistan and the Syrian Arab Republic, which also condemned the
construction of the wall. This latter draft resolution was put to a vote after
an open debate and was not adopted owing to the negative vote of a permanent
member of the Council (S/PV.4841 and S/PV.4842).

On 15 October 2003, the Chairman of the Arab
Group, on behalf of the States Members of the League of Arab States, requested
the resumption of the Tenth Emergency Special Session of the General Assembly
to consider the item of “Illegal Israeli actions in Occupied East Jerusalem and
the rest of the Occupied Palestinian Territory” (A/ES-10/242); this request was
supported by the Non-Aligned Movement (A/ES-10/243) and the Organization of the
Islamic Conference Group at the United Nations (A/ES-10/244). The Tenth
Emergency Special Session resumed its work on 20 October
2003.

21. On 27 October 2003, the General Assembly adopted
resolution ES-10/13, by

which it demanded that “Israel stop and reverse
the construction of the wall in the Occupied Palestinian Territory, including
in and around East Jerusalem, which is in departure of the Armistice Line of
1949 and is in contradiction to relevant provisions of international law”
(para. 1). In paragraph 3, the Assembly requested the Secretary-General “to
report on compliance with the . . . resolution periodically, with the first
report on compliance with paragraph 1 [of that resolution] to be submitted
within one month . . .”. The Tenth Emergency Special
Session was temporarily adjourned and, on 24 November 2003, the report of the
Secretary-General prepared pursuant to General Assembly resolution ES-10/13
(hereinafter the “report of the Secretary-General”) was issued (A/ES-10/248).

22. Meanwhile, on 19
November 2003,
the Security Council adopted resolution 1515 (2003), by which it “Endorse[d]
the Quartet Performance-based Roadmap to a Permanent Two-State Solution to the
Israeli-Palestinian Conflict”. The Quartet consists of representatives of the United States of America, the European Union, the Russian Federation and the United Nations. That
resolution

“Call[ed] on the parties to fulfil their
obligations under the Roadmap in cooperation with the Quartet and to achieve
the vision of two States living side by side in peace and security.”

Neither the “Roadmap” nor resolution 1515
(2003) contained any specific provision concerning the construction of the
wall, which was not discussed by the Security Council in this context.

23. Nineteen days later, on 8 December 2003,
the Tenth Emergency Special Session of the General Assembly again resumed its
work, following a new request by the Chairman of the Arab Group, on behalf of
the States Members of the League of Arab States, and pursuant to resolution
ES-10/13 (letter dated 1 December 2003 to the President of the General Assembly
from the Chargé d’affaires a.i. of the Permanent Mission of Kuwait to the
United Nations, A/ES-10/249, 2 December 2003). It was during the meeting
convened on that day that resolution ES-10/14 requesting the present Advisory
Opinion was adopted.

*

24. Having thus recalled the sequence of events
that led to the adoption of resolution ES-10/14, the Court will now turn to the
questions of jurisdiction that have been raised in the present proceedings. First,
Israel has alleged that, given the active engagement
of the Security Council with the situation in the Middle East, including the Palestinian
question, the General Assembly acted ultra vires under the Charter when it
requested an advisory opinion on the legal consequences of the construction of
the wall in the Occupied Palestinian Territory.

25. The Court has already indicated that the
subject of the present request for an advisory opinion falls within the
competence of the General Assembly under the Charter (see paragraphs 15-17
above). However, Article 12, paragraph 1, of the Charter provides that:

“While the Security Council is exercising in
respect of any dispute or situation the functions assigned to it in the present
Charter, the General Assembly shall not make any recommendation with regard to
that dispute or situation unless the Security Council so requests.”

A request for an advisory opinion is not in
itself a “recommendation” by the General Assembly “with regard to [a] dispute
or situation”. It has however been argued in this case that the adoption by the
General Assembly of resolution ES-10/14 was ultra vires as not in

accordance with Article 12. The Court thus
considers that it is appropriate for it to examine the significance of that
Article, having regard to the relevant texts and the practice of the United
Nations.

26. Under Article 24 of the Charter the
Security Council has “primary responsibility for the maintenance of
international peace and security”. In that regard it can impose on States “an
explicit obligation of compliance if for example it issues an order or command
. . . under Chapter VII” and can, to that end, “require enforcement by coercive
action” (Certain Expenses of

the United Nations (Article 17, paragraph 2, of
the Charter), Advisory Opinion of 20 July 1962, I.C.J. Reports 1962, p. 163). However,
the Court would emphasize that Article 24 refers to a primary, but not
necessarily exclusive, competence. The General Assembly does have the power,
inter alia, under Article 14 of the Charter, to “recommend measures for the
peaceful adjustment” of various situations (Certain Expenses of the United Nations,
ibid., p. 163). “[T]he only limitation which Article 14 imposes on the General
Assembly is the restriction found in Article 12, namely, that the Assembly
should not recommend measures while the Security Council is dealing with the
same matter unless the Council requests it to do so.” (Ibid.).

27. As regards the practice of the United
Nations, both the General Assembly and the Security Council initially
interpreted and applied Article 12 to the effect that the Assembly could not
make a recommendation on a question concerning the maintenance of international
peace and security while the matter remained on the Council’s agenda. Thus the
Assembly during its fourth session refused to recommend certain measures on the
question of Indonesia, on the ground, inter alia, that
the Council remained seised of the matter (Official Records of the General
Assembly, Fourth Session, Ad Hoc Political Committee, Summary Records of
Meetings, 27 September-7 December 1949, 56th Meeting, 3 December 1949, p. 339,
para. 118). As for the Council, on a number of occasions it deleted items from
its agenda in order to enable the Assembly to deliberate on them (for example,
in respect of the Spanish question (Official Records of the Security Council,
First Year: Second Series, No. 21, 79th Meeting, 4 November 1946, p. 498), in
connection with incidents on the Greek border (Official Records of the Security
Council, Second Year, No. 89, 202nd Meeting, 15 September 1947, pp. 2404-2405)
and in regard to the Island of Taiwan (Formosa) (Official Records of the
Security Council, Fifth Year, No. 48, 506th Meeting, 29 September 1950, p. 5)).
In the case of the Republic of Korea, the Council decided on 31
January 1951
to remove the relevant item from the list of matters of which it was seised in
order to enable the Assembly to deliberate on the matter (Official Records of
the Security Council, Sixth Year, S/PV.531, 531st Meeting, 31 January 1951, pp.
11-12, para. 57).

However, this interpretation of Article 12 has
evolved subsequently. Thus the General Assembly deemed itself entitled in 1961
to adopt recommendations in the matter of the Congo (resolutions 1955 (XV) and
1600 (XVI)) and in 1963 in respect of the Portuguese colonies (resolution 1913
(XVIII)) while those cases still appeared on the Council’s agenda, without the
Council having adopted any recent resolution concerning them. In response to a
question posed by Peru during the Twenty-third session of the General Assembly,
the Legal Counsel of the United Nations confirmed that the Assembly interpreted
the words “is exercising the functions” in Article 12 of the Charter as meaning
“is exercising the functions at this moment” (Twenty-third General Assembly,
Third Committee, 1637th meeting, A/C.3/SR.1637, para. 9). Indeed, the Court
notes that there has been an increasing tendency over time for the General
Assembly and the Security Council to deal in parallel with the same matter
concerning the maintenance of international peace and security (see, for
example, the matters involving Cyprus, South Africa, Angola, Southern Rhodesia and more recently Bosnia and Herzegovina and Somalia). It is often the case that, while
the Security Council has tended to focus on the aspects of such matters related
to international peace and security, the General Assembly has taken a broader
view, considering also their humanitarian, social and economic aspects.

28. The Court considers that the accepted
practice of the General Assembly, as it has evolved, is consistent with Article
12, paragraph 1, of the Charter.

The Court is accordingly of the view that the
General Assembly, in adopting resolution ES-10/14, seeking an advisory opinion
from the Court, did not contravene the provisions of Article 12, paragraph 1,
of the Charter. The Court concludes that by submitting that request the General
Assembly did not exceed its competence.

29. It has however been contended before the
Court that the present request for an advisory opinion did not fulfil the
essential conditions set by resolution 377 A (V), under which the Tenth
Emergency Special Session was convened and has continued to act. In this
regard, it has been said, first, that “The Security Council was never seised of
a draft resolution proposing that the Council itself should request an advisory
opinion from the Court on the matters now in contention”, and, that specific
issue having thus never been brought before the Council, the General Assembly
could not rely on any inaction by the Council to make such a request. Secondly,
it has been claimed that, in adopting resolution 1515 (2003), which endorsed
the “Roadmap”, before the adoption by the General Assembly of resolution
ES-10/14, the Security Council continued to exercise its responsibility for the
maintenance of international peace and security and that, as a result, the
General Assembly was not entitled to act in its place. The validity of the
procedure followed by the Tenth Emergency Special Session, especially the
Session’s “rolling character” and the fact that its meeting was convened to
deliberate on the request for the advisory opinion at the same time as the
General Assembly was meeting in regular session, has also been questioned.

30. The Court would recall that resolution 377
A (V) states that:

“if the Security Council, because of lack of
unanimity of the permanent members, fails to exercise its primary responsibility
for the maintenance of international peace and security in any case where there
appears to be a threat to the peace, breach of the peace, or act of aggression,
the General Assembly shall consider the matter immediately with a view to
making appropriate recommendations to Members for collective measures . . .”

The procedure provided for by that resolution
is premised on two conditions, namely that the Council has failed to exercise
its primary responsibility for the maintenance of international peace and
security as a result of a negative vote of one or more permanent members, and
that the situation is one in which there appears to be a threat to the peace,
breach of the peace, or act of aggression. The Court must accordingly ascertain
whether these conditions were fulfilled as regards the convening of the Tenth
Emergency Special Session of the General Assembly, in particular at the time
when the Assembly decided to request an advisory opinion from the Court.

31. In the light of the sequence of events
described in paragraphs 18 to 23 above, the Court observes that, at the time
when the Tenth Emergency Special Session was convened in 1997, the Council had
been unable to take a decision on the case of certain Israeli settlements in
the

Occupied Palestinian Territory, due to negative votes of a
permanent member; and that, as indicated in resolution ES-10/2 (see paragraph
19 above), there existed a threat to

international peace and security.

The Court further notes that, on 20 October
2003, the Tenth Emergency Special Session of the General Assembly was
reconvened on the same basis as in 1997 (see the statements by the
representatives of Palestine and Israel, A/ES-10/PV.21, pp. 2 and 5), after the
rejection by the Security Council, on 14 October 2003, again as a result of the
negative vote of a permanent member, of a draft resolution concerning the
construction by Israel of the wall in the Occupied Palestinian Territory. The
Court considers that the Security Council again failed to act as contemplated
in resolution 377 A (V). It does not appear to the Court that the situation in
this regard changed between 20 October 2003 and 8 December 2003, since the
Council neither discussed the construction of the wall nor adopted any
resolution in that connection. Thus, the Court is of the view that, up to 8
December 2003,
the Council had not reconsidered the negative vote of 14
October 2003.
It follows that, during that period, the Tenth Emergency Special Session was
duly reconvened and could properly be seised, under resolution 377 A (V), of
the matter now before the Court.

32. The Court would also emphasize that, in the
course of this Emergency Special Session, the General Assembly could adopt any
resolution falling within the subject-matter for which the Session had been
convened, and otherwise within its powers, including a resolution seeking the
Court’s opinion. It is irrelevant in that regard that no proposal had been made
to the Security Council to request such an opinion.

33. Turning now to alleged further procedural
irregularities of the Tenth Emergency Special Session, the Court does not
consider that the “rolling” character of that Session, namely the fact of its
having been convened in April 1997 and reconvened 11 times since then, has any
relevance with regard to the validity of the request by the General Assembly. The
Court observes in that regard that the Seventh Emergency Special Session of the
General Assembly, having been convened on 22 July 1980, was subsequently
reconvened four times (on 20 April 1982, 25 June 1982, 16 August 1982 and 24
September 1982), and that the validity of resolutions or decisions of the
Assembly adopted under such circumstances was never disputed. Nor has the
validity of any previous resolutions adopted during the Tenth Emergency Special
Session been challenged.

34. The Court also notes the contention by Israel that it was improper to reconvene
the Tenth Emergency Special Session at a time when the regular Session of the
General Assembly was in progress. The Court considers that, while it may not
have been originally contemplated that it would be appropriate for the General
Assembly to hold simultaneous emergency and regular sessions, no rule of the
Organization has been identified which would be thereby violated, so as to
render invalid the resolution adopting the present request for an advisory
opinion.

35. Finally, the Tenth Emergency Special
Session appears to have been convened in accordance with Rule 9 (b) of the
Rules of Procedure of the General Assembly, and the relevant meetings have been
convened in pursuance of the applicable rules. As the Court stated in its
Advisory Opinion of 21 June 1971 concerning the Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), a “resolution of a
properly constituted organ of the United Nations which is passed in accordance
with that organ’s rules of procedure, and is declared by its President to have
been so passed, must be presumed to have been validly adopted” (I.C.J. Reports
1971, p. 22, para. 20). In view of the foregoing, the Court cannot see any
reason why that presumption is to be rebutted in the present case.*

36. The Court now turns to a further issue
related to jurisdiction in the present proceedings, namely the contention that
the request for an advisory opinion by the General Assembly is not on a “legal
question” within the meaning of Article 96, paragraph 1, of the Charter and
Article 65, paragraph 1, of the Statute of the Court. It has been contended in
this regard that, for a question to constitute a “legal question” for the
purposes of these two provisions, it must be reasonably specific, since
otherwise it would not be amenable to a response by the Court. With regard to
the request made in the present advisory proceedings, it has been argued that
it is not possible to determine with reasonable certainty the legal meaning of
the question asked of the Court for two reasons.

First, it has been argued that the question
regarding the “legal consequences” of the construction of the wall only allows
for two possible interpretations, each of which would lead to a course of
action that is precluded for the Court. The question asked could first be
interpreted as a request for the Court to find that the construction of the wall
is illegal, and then to give its opinion on the legal consequences of that
illegality. In this case, it has been contended, the Court should decline to
respond to the question asked for a variety of reasons, some of which pertain
to jurisdiction and others rather to the issue of propriety. As regards
jurisdiction, it is said that, if the General Assembly had wished to obtain the
view of the Court on the highly complex and sensitive question of the legality
of the construction of the wall, it should have expressly sought an opinion to
that effect (cf. Exchange of Greek and Turkish Populations, Advisory Opinion,
1925, P.C.I.J., Series B, No. 10, p. 17). A second possible interpretation of
the request, it is said, is that the Court should assume that the construction
of the wall is illegal, and then give its opinion on the legal consequences of
that assumed illegality. It has been contended that the Court should also
decline to respond to the question on this hypothesis, since the request would
then be based on a questionable assumption and since, in any event, it would be
impossible to rule on the legal consequences of illegality without specifying
the nature of that illegality.

Secondly, it has been contended that the
question asked of the Court is not of a “legal” character because of its
imprecision and abstract nature. In particular, it has been argued in this
regard that the question fails to specify whether the Court is being asked to
address legal

consequences for “the General Assembly or some
other organ of the United Nations”, “Member States of the United Nations”,
“Israel”, “Palestine” or “some combination of the above, or some different
entity”.

37. As regards the alleged lack of clarity of the
terms of the General Assembly’s request and its effect on the “legal nature” of
the question referred to the Court, the Court observes that this question is
directed to the legal consequences arising from a given factual situation
considering the rules and principles of international law, including the Geneva
Convention relative to the Protection of Civilian Persons in Time of War of 12
August 1949 (hereinafter the “Fourth Geneva Convention”) and relevant Security
Council and General Assembly resolutions. The question submitted by the General
Assembly has thus, to use the Court’s phrase in its Advisory Opinion on Western
Sahara, “been framed in terms of law and raise[s] problems of international
law”; it is by its very nature susceptible of a reply based on law; indeed it
is scarcely susceptible of a reply otherwise than on the basis of law. In the
view of the Court, it is indeed a question of a legal character (see Western Sahara, Advisory Opinion, I.C.J. Reports
1975, p. 18, para. 15).

38. The Court would point out that lack of
clarity in the drafting of a question does not deprive the Court of
jurisdiction. Rather, such uncertainty will require clarification in
interpretation, and such necessary clarifications of interpretation have
frequently been given

by the Court.

In the past, both the Permanent Court and the
present Court have observed in some cases that the wording of a request for an
advisory opinion did not accurately state the question on which the Court’s
opinion was being sought (Interpretation of the Greco-Turkish Agreement of 1
December 1926 (Final Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J.,
Series B, No. 16 (I), pp. 14-16), or did not correspond to the “true legal
question” under consideration (Interpretation of the Agreement of 25 March 1951
between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, pp. 87-89,
paras. 34-36). The Court noted in one case that “the question put to the Court
is, on the face of it, at once infelicitously expressed and vague” (Application
for Review of Judgement No. 273 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1982, p. 348, para. 46).

Consequently, the Court has often been required
to broaden, interpret and even reformulate the questions put (see the three
Opinions cited above; see also Jaworzina, Advisory Opinion, 1923, P.C.I.J.,
Series B, No. 8; Admissibility of Hearings of Petitioners by the Committee on
South West Africa, Advisory Opinion, I.C.J. Reports 1956, p. 25; Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, I.C.J. Reports 1962, pp. 157-162).

In the present instance, the Court will only
have to do what it has often done in the past, namely “identify the existing
principles and rules, interpret them and apply them . . ., thus offering a
reply to the question posed based on law” (Legality of the Threat or Use of
Nuclear Weapons, I.C.J. Reports 1996 (I), p. 234, para. 13).

39. In the present instance, if the General
Assembly requests the Court to state the “legal consequences” arising from the
construction of the wall, the use of these terms necessarily encompasses an
assessment of whether that construction is or is not in breach of certain rules
and principles of international law. Thus, the Court is first called upon to
determine whether such rules and principles have been and are still being
breached by the construction of the wall along the planned route.

40. The Court does not consider that what is
contended to be the abstract nature of the question posed to it raises an issue
of jurisdiction. Even when the matter was raised as an issue of propriety
rather than one of jurisdiction, in the case concerning the Legality of the
Threat or Use of Nuclear Weapons, the Court took the position that to contend
that it should not deal with a question couched in abstract terms is “a mere
affirmation devoid of any justification” and that “the Court may give an
advisory opinion on any legal question, abstract or otherwise” (I.C.J. Reports
1996 (I), p. 236, para. 15, referring to Conditions of Admission of a State to
Membership in the United Nations (Article 4 of the Charter), Advisory Opinion,
1948, I.C.J. Reports 1947-1948, p. 61; Effect of Awards of Compensation Made by
the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports
1954, p. 51; and Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 27, para. 40).
In any event, the Court considers that the question posed to it in relation to
the legal consequences of the construction of the wall is not an abstract one,
and moreover that it would be for the Court to determine for whom any such
consequences arise.

41. Furthermore, the Court cannot accept the
view, which has also been advanced in the present proceedings,
that it has no jurisdiction because of the “political” character of the
question posed. As is clear from its long-standing jurisprudence on this point,
the Court considers that the fact that a legal question also has political
aspects,

“as, in the nature of things, is the case with
so many questions which arise in international life, does not suffice to
deprive it of its character as a ‘legal question’ and to ‘deprive the Court of
a competence expressly conferred on it by its Statute’(Application
for Review of Judgement No. 158 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J, Reports 1973, p. 172, para. 14). Whatever its
political aspects, the Court cannot refuse to admit the legal character of a
question which invites it to discharge an essentially judicial task, namely, an
assessment of the legality of the possible conduct of States with regard to the
obligations imposed upon them by international law (cf. Conditions of Admission
of a State to Membership in the United Nations (Article 4 of the Charter),
Advisory Opinion, 1948, I.C.J. Reports 1947-1948, pp. 61-62; Competence of the
General Assembly for the Admission of a State to the United Nations, Advisory
Opinion, I.C.J. Reports 1950, pp. 6-7; Certain Expenses of the United Nations
(Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports
1962, p. 155).” (Legality of the Threat or Use of Nuclear
Weapons, I.C.J. Reports 1996 (I), p. 234, para. 13.)

In its Opinion concerning the Interpretation of
the Agreement of 25 March 1951 between the WHO and Egypt, the Court indeed
emphasized that, “in situations in which political considerations are prominent
it may be particularly necessary for an international organization to obtain an
advisory opinion from the Court as to the legal principles applicable with
respect to the matter under debate . . .” (I.C.J. Reports 1980, p. 87, para.
33). Moreover, the Court has affirmed in its Opinion on the Legality of the
Threat or Use of Nuclear Weapons that “the political nature of the motives
which may be said to have inspired the request and the political implications
that the opinion given might have are of no relevance in the establishment of
its jurisdiction to give such an opinion” (I.C.J. Reports 1996 (I), p. 234,
para. 13). The Court is of the view that there is no element in the present
proceedings which could lead it to conclude otherwise.

*

42. The Court accordingly has jurisdiction to
give the advisory opinion requested by resolution ES-10/14 of the General
Assembly.

43. It has been contended in the present
proceedings, however, that the Court should decline to exercise its
jurisdiction because of the presence of specific aspects of the General
Assembly’s request that would render the exercise of the Court’s jurisdiction
improper and inconsistent with the Court’s judicial function.

44. The Court has recalled many times in the
past that Article 65, paragraph 1, of its Statute, which provides that “The
Court may give an advisory opinion . . .” (emphasis added), should be
interpreted to mean that the Court has a discretionary power to decline to give
an advisory opinion even if the conditions of jurisdiction are met (Legality of
the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996
(I), p. 234, para. 14). The Court however is mindful of the fact that its
answer to a request for an advisory opinion “represents its participation in
the activities of the Organization, and, in principle, should not be refused”
(Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71; see also, for example,
Difference Relating to Immunity from Legal Process of a Special Rapporteur of
the Commission of Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), pp.
78-79, para. 29.) Given its responsibilities as the “principal judicial organ
of the United Nations” (Article 92 of the Charter), the Court should in
principle not decline to give an advisory opinion. In accordance with its
consistent jurisprudence, only “compelling reasons” should lead the Court to
refuse its opinion

(Certain Expenses of the United Nations
(Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports
1962, p. 155; see also, for example, Difference Relating to Immunity from Legal
Process of a Special Rapporteur of the Commission of Human Rights, Advisory
Opinion, I.C.J. Reports 1999 (I), pp. 78-79, para. 29.)

The present Court has never, in the exercise of
this discretionary power, declined to respond to a request for an advisory
opinion. Its decision not to give the advisory opinion on the Legality of the
Use by a State of Nuclear Weapons in Armed Conflict requested by the World
Health Organization was based on the Court’s lack of jurisdiction, and not on
considerations of judicial propriety (see I.C.J. Reports 1996 (I), p. 235,
para. 14). Only on one occasion did the Court’s predecessor, the Permanent
Court of International Justice, take the view that it should not reply to a
question put to it (Status of Eastern Carelia, Advisory Opinion, 1923,
P.C.I.J., Series B, No. 5), but this was due to

“the very particular circumstances of the case,
among which were that the question directly concerned an already existing
dispute, one of the States parties to which was neither a party to the Statute
of the Permanent Court nor a Member of the League of Nations, objected to the
proceedings, and refused to take part in any way” (Legality of the Threat or
Use of Nuclear Weapons, I.C.J. Reports 1996 (I), pp. 235-236, para. 14).

45. These considerations do not release the
Court from the duty to satisfy itself, each time it is seised of a request for
an opinion, as to the propriety of the exercise of its judicial function, by
reference to the criterion of “compelling reasons” as cited above. The Court
will accordingly examine in detail and in the light of its jurisprudence each
of the arguments presented to it in this regard.

*

46. The first such argument is to the effect
that the Court should not exercise its jurisdiction in the present case because
the request concerns a contentious matter between Israel and Palestine, in
respect of which Israel has not consented to the exercise of that jurisdiction.
According to this view, the subject-matter of the question posed by the General
Assembly “is an integral part of the wider Israeli-Palestinian dispute
concerning questions of terrorism, security, borders, settlements, Jerusalem
and other related matters”. Israel has emphasized that it has never consented
to the settlement of this wider dispute by the Court or by any other means of
compulsory adjudication; on the contrary, it contends that the parties
repeatedly agreed that these issues are to be settled by negotiation, with the
possibility of an agreement that recourse could be had to arbitration. It is
accordingly contended that the Court should decline to give the present
Opinion, on the basis inter alia of the precedent of the decision of the
Permanent Court of International Justice on the Status of Eastern Carelia.

47. The Court observes that the lack of consent
to the Court’s contentious jurisdiction by interested States has no bearing on
the Court’s jurisdiction to give an advisory opinion. In an Advisory Opinion of
1950, the Court explained that:

“The consent of States, parties to a dispute,
is the basis of the Court’s jurisdiction in contentious cases. The situation is
different in regard to advisory proceedings even where the Request for an
Opinion relates to a legal

question actually pending between States. The
Court’s reply is only of an advisory character: as such, it has no binding
force. It follows that no State, whether a Member of the United Nations or not,
can prevent the giving of an Advisory Opinion which the United Nations
considers to be desirable in order to obtain enlightenment as to the course of
action it should take. The Court’s Opinion is given not to the States, but to
the organ which is entitled to request it; the reply of the Court, itself an
‘organ of the United Nations’, represents its participation in the activities
of the Organization, and, in principle, should not be refused.” (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 71; see also Western Sahara, I.C.J. Reports
1975, p. 24, para. 31.)

It followed from this that, in those
proceedings, the Court did not refuse to respond to the request for an advisory
opinion on the ground that, in the particular circumstances, it lacked
jurisdiction. The Court did however examine the opposition of certain
interested States to the request by the General Assembly in the context of
issues of judicial propriety. Commenting on its 1950 decision, the Court
explained in its Advisory Opinion on Western Sahara that it had “Thus . . .
recognized that lack of consent might constitute a ground for declining to give
the opinion requested if, in the circumstances of a given case, considerations
of judicial propriety should oblige the Court to refuse an opinion.” The Court
continued:

“In certain circumstances . . . the lack of
consent of an interested State may render the giving of an advisory opinion
incompatible with the Court’s judicial character. An instance of this would be
when the circumstances disclose that to give a reply would have the effect of
circumventing the principle that a State is not obliged to allow its disputes
to be submitted to judicial settlement without its consent.” (Western
Sahara, I.C.J. Reports 1975, p. 25, paras. 32-33.)

In applying that principle to the request
concerning Western Sahara, the Court found that a legal controversy did indeed
exist, but one which had arisen during the proceedings of the General Assembly
and in relation to matters with which the Assembly was dealing. It had not
arisen independently in bilateral relations (ibid., p. 25, para. 34).

48. As regards the request for an advisory
opinion now before it, the Court acknowledges that Israel and Palestine have
expressed radically divergent views on the legal consequences of Israel’s
construction of the wall, on which the Court has been asked to pronounce. However,
as the Court has itself noted, “Differences of views .
. . on legal issues have existed in practically every advisory proceeding”
(Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), Advisory Opinion, I.C.J. Reports 1971, p. 24, para. 34).

49. Furthermore, the Court does not consider
that the subject-matter of the General Assembly’s request can be regarded as
only a bilateral matter between Israel and Palestine. Given the powers and
responsibilities of the United Nations in questions relating to international
peace

and security, it is the Court’s view that the
construction of the wall must be deemed to be directly of concern to the United
Nations. The responsibility of the United Nations in this matter also has its
origin in the Mandate and the Partition Resolution concerning Palestine (see
paragraphs 70 and 71 below). This responsibility has been described by the
General Assembly as “a permanent responsibility towards the question of
Palestine until the question is resolved in all its aspects in a satisfactory
manner in accordance with international

legitimacy” (General Assembly resolution
57/107 of 3 December 2002). Within the institutional framework of the
Organization, this responsibility has been manifested by the adoption of many Security
Council and General Assembly resolutions, and by the creation of several
subsidiary bodies specifically established to assist in the realization of the
inalienable rights of the Palestinian people.

50. The object of the request before the Court
is to obtain from the Court an opinion which the General Assembly deems of
assistance to it for the proper exercise of its functions. The opinion is
requested on a question which is of particularly acute concern to the United
Nations, and one which is located in a much broader frame of reference than a
bilateral dispute. In the circumstances, the Court does not consider that to
give an opinion would have the effect of circumventing the principle of consent
to judicial settlement, and the Court accordingly cannot, in the exercise of
its discretion, decline to give an opinion on that
ground.

*

51. The Court now turns to another argument
raised in the present proceedings in support of the view that it should decline
to exercise its jurisdiction. Some participants have argued that an advisory
opinion from the Court on the legality of the wall and the legal consequences
of its construction could impede a political, negotiated solution to the
Israeli-Palestinian conflict. More particularly, it has been contended that
such an opinion could undermine the scheme of the “Roadmap” (see paragraph 22
above), which requires Israel and Palestine to comply with certain obligations
in various phases referred to therein. The requested opinion, it has been
alleged, could complicate the negotiations envisaged in the “Roadmap”, and the
Court should therefore exercise its discretion and decline to reply to the
question put.

This is a submission of a kind which the Court
has already had to consider several times in the past. For instance, in its
Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the
Court stated:

“It has . . . been submitted that a reply from
the Court in this case might adversely affect disarmament negotiations and
would, therefore, be contrary to the interest of the United Nations. The Court
is aware that, no matter what might be its conclusions in any opinion it might
give, they would have relevance for the continuing debate on the matter in the
General Assembly and would present an additional element

in the negotiations on the matter. Beyond that,
the effect of the opinion is a matter of appreciation. The Court has heard
contrary positions advanced and there are no evident criteria by which it can
prefer one assessment to another.” (I.C.J. Reports 1996 (I), p. 237, para. 17;
see also Western Sahara, I.C.J. Reports 1975, p. 37, para. 73.)

52. One participant in the present proceedings
has indicated that the Court, if it were to give a response to the request,
should in any event do so keeping in mind

“two key aspects of
the peace process: the fundamental principle that permanent status issues must
be resolved through negotiations; and the need during the interim period for
the parties to fulfill their security responsibilities so that the peace process
can succeed”.

53. The Court is conscious that the “Roadmap”,
which was endorsed by the Security Council in resolution 1515 (2003) (see
paragraph 22 above), constitutes a negotiating

framework for the resolution of the
Israeli-Palestinian conflict. It is not clear, however, what influence the
Court’s opinion might have on those negotiations: participants in the present
proceedings have expressed differing views in this regard. The Court cannot
regard this factor as a compelling reason to decline to exercise its
jurisdiction.

54. It was also put to the Court by certain
participants that the question of the construction of the wall was only one
aspect of the Israeli-Palestinian conflict, which could not be properly
addressed in the present proceedings. The Court does not however consider this
a reason for it to decline to reply to the question asked. The Court is indeed
aware that the question of the wall is part of a greater whole, and it would
take this circumstance carefully into account in any opinion it might give. At
the same time, the question that the General Assembly has chosen to ask of the
Court is confined to the legal consequences of the construction of the wall,
and the Court would only examine other issues to the extent that they might be
necessary to its consideration of the question put to it.

*

55. Several participants in the proceedings
have raised the further argument that the Court should decline to exercise its
jurisdiction because it does not have at its disposal the requisite facts and
evidence to enable it to reach its conclusions. In particular, Israel has
contended, referring to the Advisory Opinion on the Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, that the Court could not give an
opinion on issues which raise questions of fact that cannot be elucidated
without hearing all parties to the conflict. According to Israel, if the Court
decided to give the requested opinion, it would be forced to speculate about
essential facts and make assumptions about arguments of law. More specifically,
Israel has argued that the Court could not rule on the legal consequences of
the construction of the wall without enquiring, first,

into the nature and scope of the security threat to
which the wall is intended to respond and the effectiveness of that response,
and, second, into the impact of the construction for the Palestinians. This
task, which would already be difficult in a contentious case, would be further
complicated in an advisory proceeding, particularly since Israel alone
possesses much of the necessary information and has stated that it chooses not
to address the merits. Israel has concluded that the Court,
confronted with factual issues impossible to clarify in the present
proceedings, should use its discretion and decline to comply with the request
for an advisory opinion.

56. The Court observes that the question
whether the evidence available to it is sufficient to give an advisory opinion
must be decided in each particular instance. In its Opinion concerning the
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (I.C.J.
Reports 1950, p. 72) and again in its Opinion on the Western Sahara, the Court
made it clear that what is decisive in these circumstances is “whether the
Court has before it sufficient information and evidence to enable it to arrive
at a judicial conclusion upon any disputed questions of fact the determination
of which is necessary for it to give an opinion in conditions compatible with
its judicial character” (Western Sahara, I.C.J. Reports 1975, pp. 28-29, para. 46).
Thus, for instance, in the proceedings concerning the Status of Eastern
Carelia, the Permanent Court of International Justice decided to decline to
give an Opinion inter alia because the question put “raised a question of fact
which could not be elucidated without hearing both parties” (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 72;
see Status of Eastern Carelia, P.C.I.J., Series B, No. 5, p. 28). On the other
hand, in the Western Sahara Opinion, the Court observed that it had been
provided with very extensive documentary evidence of the relevant facts (I.C.J.
Reports 1975, p. 29, para. 47).

57. In the present instance, the Court has at
its disposal the report of the

Secretary-General, as well as a voluminous
dossier submitted by him to the Court, comprising not only detailed information
on the route of the wall but also on its humanitarian and socio-economic impact
on the Palestinian population. The dossier includes several reports based on
on-site visits by special rapporteurs and competent organs of the United
Nations. The Secretary-General has further submitted to the Court a written
statement updating his report, which supplemented the information contained
therein. Moreover, numerous other participants have submitted to the Court
written statements which contain information relevant to a response to the
question put by the General Assembly. The Court notes in particular that
Israel’s Written Statement, although limited to issues of jurisdiction and
judicial propriety, contained observations on other matters, including Israel’s
concerns in terms of security, and was accompanied by corresponding annexes;
many other documents issued by the Israeli Government on those matters are in
the public domain.

58. The Court finds that it has before it
sufficient information and evidence to enable it to give the advisory opinion
requested by the General Assembly. Moreover, the circumstance that others may
evaluate and interpret these facts in a subjective or political manner can be
no argument

for a court of law to abdicate its judicial task. There
is therefore in the present case no lack of information such as to constitute a
compelling reason for the Court to decline to give the requested opinion.

*

59. In their written statements, some
participants have also put forward the argument that the Court should decline
to give the requested opinion on the legal consequences of the construction of
the wall because such opinion would lack any useful purpose. They have argued
that the advisory opinions of the Court are to be seen as a means to enable an
organ or agency in need of legal clarification for its future action to obtain
that clarification. In the present instance, the argument continues, the
General Assembly would not need an opinion of the Court because it has already
declared the construction of the wall to be illegal and has already determined
the legal consequences by demanding that Israel stop and reverse its
construction, and further, because the General Assembly has never made it clear
how it intended to use the opinion.

60. As is clear from the Court’s jurisprudence,
advisory opinions have the purpose of furnishing to the requesting organs the
elements of law necessary for them in their action. In its Opinion concerning
Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, the Court observed: “The object of this request for an Opinion is to
guide the United Nations in respect of its own action.” (I.C.J.
Reports 1951, p. 19.) Likewise, in its Opinion on the Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), the Court
noted: “The request is put forward by a United Nations organ with reference to
its own decisions and it seeks legal advice from the Court on the consequences
and implications of these decisions.” (I.C.J. Reports 1971,
p. 24, para. 32.) The Court found on another occasion that the advisory
opinion it was to give would “furnish the General Assembly with elements of a
legal character relevant to its further treatment of the decolonization of
Western Sahara” (Western Sahara, I.C.J. Reports 1975, p. 37, para. 72).

61. With regard to the argument that the
General Assembly has not made it clear what use it would make of an advisory
opinion on the wall, the Court would recall, as equally relevant in the present
proceedings, what it stated in its Opinion on the Legality of the

Threat or Use of Nuclear Weapons:

“Certain States have observed that the General
Assembly has not explained to the Court for what precise purposes it seeks the
advisory opinion. Nevertheless, it is not for the Court itself to purport to
decide whether or not an advisory opinion is needed by the Assembly for the
performance of its functions. The General Assembly has the right to decide for
itself on the usefulness of an opinion in the light of its own needs.” (I.C.J. Reports 1996 (I), p. 237, para. 16.)

62. It follows that the Court cannot decline to
answer the question posed based on the ground that its opinion would lack any
useful purpose. The Court cannot substitute its assessment of the usefulness of
the opinion requested for that of the organ that seeks such opinion, namely the
General Assembly. Furthermore, and in any event, the Court considers that the
General Assembly has not yet determined all the possible consequences of its
own resolution. The Court’s task would be to determine in a comprehensive
manner the legal consequences of the construction of the wall, while the
General Assembly ~ and the

Security Council ~ may then draw conclusions
from the Court’s findings.

*

63. Lastly, the Court will turn to another
argument advanced with regard to the propriety of its giving an advisory
opinion in the present proceedings. Israel has contended that Palestine, given
its responsibility for acts of violence against Israel and its population which
the wall is aimed at addressing, cannot seek from the Court a remedy for a
situation resulting from its own wrongdoing. In this context, Israel has
invoked the maxim nullus commodum capere potest de sua injuria propria, which
it considers to be as relevant in advisory proceedings as it is in contentious
cases. Therefore, Israel concludes, good faith and the principle of “clean
hands” provide a compelling reason that should lead the Court to refuse the
General Assembly’s request.

64. The Court does not consider this argument
to be pertinent. As was emphasized earlier, it was the General Assembly which
requested the advisory opinion, and the opinion is to be given to the General
Assembly, and not to a specific State or entity.

65. In the light of the foregoing, the Court
concludes not only that it has jurisdiction to give an opinion on the question
put to it by the General Assembly (see paragraph 42 above), but also that there
is no compelling reason for it to use its discretionary power not to give that
opinion.

*

66. The Court will now address the question put
to it by the General Assembly in resolution ES-10/14. The Court recalls that
the question is as follows:

“What are the legal consequences arising from
the construction of the

wall being built by Israel, the occupying
Power, in the Occupied Palestinian Territory, including in and around East
Jerusalem, as described in the report of the Secretary-General, considering the
rules and principles of international law, including the Fourth Geneva
Convention of 1949, and relevant Security Council and General Assembly
resolutions?”

67. As explained in paragraph 82 below, the
“wall” in question is a complex construction, so that that term cannot be
understood in a limited physical sense. However, the other terms used, either
by Israel (“fence”) or by the Secretary-General (“barrier”), are no more
accurate if understood in the physical sense. In this Opinion, the Court has
therefore chosen to use the terminology employed by the General Assembly.

The Court notes furthermore that the request of
the General Assembly concerns the legal consequences of the wall being built
“in the Occupied Palestinian Territory, including in and around East
Jerusalem”. As also explained below (see paragraphs 79-84 below), some parts of
the complex are being built, or are planned to be built, on the territory of
Israel itself; the Court does not consider that it is called upon to examine
the legal consequences arising from the construction of those parts of the
wall.

68. The question put by the General Assembly
concerns the legal consequences of the construction of the wall in the Occupied
Palestinian Territory. However, in order to indicate those consequences to the
General Assembly the Court must first determine whether or not the construction
of that wall breaches international law (see paragraph 39 above). It will
therefore make this determination before dealing with the consequences of the
construction.

69. To do so, the Court will first make a brief
analysis of the status of the territory concerned, and will then describe the
works already constructed or in course of construction in that territory. It
will then indicate the applicable law before seeking to establish whether that
law has been breached.

70. Palestine was part of the Ottoman Empire. At
the end of the First World War, a class “A” Mandate for Palestine was entrusted
to Great Britain by the League of Nations, pursuant to paragraph 4 of Article
22 of the Covenant, which provided that:

“Certain communities, formerly belonging to the
Turkish Empire have reached a stage of development where their existence as
independent nations can be provisionally recognized subject to the rendering of
administrative advice and assistance by a Mandatory until such time as they are
able to stand alone.”

The Court recalls that in its Advisory Opinion
on the International Status of South West Africa, speaking of mandates in
general, it observed that “The Mandate was created, in the interest of the
inhabitants of the territory, and of humanity in general, as an international
institution with an international object ~ a sacred trust of civilization.” (I.C.J. Reports 1950, p. 132.) The Court also held in this
regard that “two principles were considered to be of paramount importance: the
principle of non-annexation and the principle that the well-being and
development of . . . peoples [not yet able to govern themselves] form[ed] ‘a sacred trust of civilization’” (ibid., p. 131).

The territorial boundaries of the Mandate for
Palestine were laid down by various instruments, in particular on the eastern
border by a British memorandum of

16 September 1922 and an Anglo-Transjordanian
Treaty of 20 February 1928.

71. In 1947 the United Kingdom announced its
intention to complete evacuation of the mandated territory by 1 August 1948,
subsequently advancing that date to 15 May 1948. In the meantime, the General
Assembly had on 29 November 1947 adopted resolution 181 (II) on the future
government of Palestine, which “Recommends to the United Kingdom . . . and to
all other Members of the United Nations the adoption and implementation . . .
of the Plan of Partition” of the territory, as set forth in the resolution,
between two independent States, one Arab, the other Jewish, as well as the
creation of a special international régime for the City of Jerusalem. The Arab
population of Palestine and the Arab States rejected this plan, contending that
it was unbalanced; on 14 May 1948, Israel proclaimed its independence on the
strength of the General Assembly resolution; armed conflict then broke out
between Israel and a number of Arab States and the Plan of Partition was not
implemented.

72. By resolution 62 (1948) of 16 November
1948, the Security Council decided that “an armistice shall be established in
all sectors of Palestine” and called upon the parties directly involved in the
conflict to seek agreement to this end. In conformity with this decision,
general armistice agreements were concluded in 1949 between Israel and the
neighbouring States through mediation by the United Nations. In particular, one
such agreement was signed in Rhodes on 3 April 1949 between Israel and Jordan. Articles
V and VI of that Agreement fixed the armistice demarcation line between Israeli
and Arab forces (often later called the “Green Line” owing to the colour used
for it on maps; hereinafter the “Green Line”). Article III, paragraph 2,
provided that “No element of the . . . military or para-military forces of
either Party . . . shall advance beyond or pass over for any purpose whatsoever
the Armistice Demarcation Lines . . .” It was agreed in Article VI, paragraph
8, that these provisions would not be “interpreted as prejudicing, in any
sense, an ultimate political settlement between the Parties”. It was also
stated that “the Armistice

Demarcation Lines defined in articles V and VI
of [the] Agreement [were] agreed upon by the Parties without prejudice to
future territorial settlements or boundary lines or to claims of either Party
relating thereto”. The Demarcation Line was subject to such rectification as
might be agreed upon by the parties.

73. In the 1967 armed conflict, Israeli forces
occupied all the territories which had constituted Palestine under British
Mandate (including those known as the West Bank, lying to the east of the Green
Line).

74. On 22 November 1967, the Security Council
unanimously adopted resolution 242 (1967), which emphasized the inadmissibility
of acquisition of territory by war and called for the “Withdrawal of Israel
armed forces from territories occupied in the recent conflict”, and
“Termination of all claims or states of belligerency”.

75. From 1967 onwards, Israel took a number of
measures in these territories aimed at changing the status of the City of
Jerusalem. The Security Council, after recalling on a number of occasions “the
principle that acquisition of territory by military conquest is inadmissible”,
condemned those measures and, by resolution 298 (1971) of 25 September 1971,
confirmed in the clearest possible terms that:

“all legislative and
administrative actions taken by Israel to change the status of the City of
Jerusalem, including expropriation of land and properties, transfer of
populations and legislation aimed at the incorporation of the occupied section,
are totally invalid and cannot change that status”.

Later, following the adoption by Israel on 30
July 1980 of the Basic Law making

Jerusalem the “complete and united” capital of
Israel, the Security Council, by resolution 478 (1980) of 20 August 1980, stated
that the enactment of that Law constituted a violation of international law and
that “all legislative and administrative measures and actions taken by Israel,
the occupying Power, which have altered or purport to alter the character and
status of the Holy City of Jerusalem . . . are null and void”. It further
decided “not to recognize the ‘basic law’ and such other actions by Israel
that, as a result of this law, seek to alter the character and status of
Jerusalem”.

76. Subsequently, a peace treaty was signed on
26 October 1994 between Israel and Jordan. That treaty fixed the boundary
between the two States “with reference to the boundary definition under the
Mandate as is shown in Annex I (a) . . . without prejudice to the status of any
territories that came under Israeli military government control in 1967”
(Article 3, paragraphs 1 and 2). Annex I provided the corresponding maps and
added that, with regard to the “territory that came under Israeli military
government control in 1967”, the line indicated “is the administrative
boundary” with Jordan.

77. Lastly, a number of agreements have been
signed since 1993 between Israel and the Palestine Liberation Organization
imposing various obligations on each party. Those agreements inter alia
required Israel to transfer to Palestinian authorities certain powers and
responsibilities exercised in the Occupied Palestinian Territory by its
military authorities and civil administration. Such transfers have taken place,
but, as a result of subsequent events, they remained partial and limited.

78. The Court would observe that, under
customary international law as reflected (see paragraph 89 below) in Article 42
of the Regulations Respecting the Laws and Customs of War on Land annexed to
the Fourth Hague Convention of 18 October 1907 (hereinafter “the Hague
Regulations of 1907”), territory is considered occupied when it is actually
placed under the authority of the hostile army, and the occupation extends only
to the territory where such authority has been established and can be
exercised.

The territories situated between the Green Line
(see paragraph 72 above) and the former eastern boundary of Palestine under the
Mandate were occupied by Israel in 1967 during the armed conflict between
Israel and Jordan. Under customary international law, these were therefore
occupied territories in which Israel had the status of occupying Power. Subsequent
events in these territories, as described in paragraphs 75 to 77 above, have
done nothing to alter this situation. All these territories (including East
Jerusalem) remain occupied territories and Israel has continued to have the
status of occupying Power.

*

79. It is essentially in these territories that
Israel has constructed or plans to construct the works described in the report
of the Secretary-General. The Court will now describe those works, basing
itself on that report. For developments subsequent to the publication of that
report, the Court will refer to complementary information contained in the
Written Statement of the United Nations, which was intended by the
Secretary-General to supplement his report (hereinafter “Written Statement of
the Secretary-General”).

80. The report of the Secretary-General states
that “The Government of Israel has since 1996 considered plans to halt
infiltration into Israel from the central and northern West Bank . . .” (Para.
4.) According to that report, a plan of this type was approved for the first
time by the Israeli Cabinet in July 2001. Then, on 14 April 2002, the Cabinet
adopted a decision for the construction of works, forming what Israel describes
as a “security fence”,

80 kilometres in length, in three
areas of the West Bank.

The project was taken a stage further when, on
23 June 2002, the Israeli Cabinet approved the first phase of the construction
of a “continuous fence” in the West Bank (including East Jerusalem). On 14
August 2002, it adopted the line of that “fence” for the work in Phase A, with
a view to the construction of a complex 123 kilometres long in the northern
West Bank, running

from the Salem checkpoint (north of Jenin) to the
settlement at Elkana. Phase B of the work was approved in December 2002. It
entailed a stretch of some 40 kilometres running east from the Salem checkpoint
towards Beth Shean along the northern part of the Green Line as far as the
Jordan Valley. Furthermore, on 1 October 2003, the Israeli Cabinet approved a
full route, which, according to the report of the Secretary-General, “will form
one continuous line stretching 720 kilometres along the West Bank”. A map
showing completed and planned sections was posted on the Israeli Ministry of
Defence website on 23 October 2003. According to the particulars provided on
that map, a continuous section (Phase C) encompassing a number of large
settlements will link the north-western end of the “security fence” built
around Jerusalem with the southern point of Phase A construction at Elkana. According
to the same map, the “security fence” will run for 115 kilometres from the Har
Gilo settlement near Jerusalem to the Carmel settlement south-east of Hebron
(Phase D). According to Ministry of Defence documents, work in this sector is due
for completion in 2005. Lastly, there are references in the case file to
Israel’s planned construction of a “security fence” following the Jordan Valley
along the mountain range to the west.

81. According to the Written Statement of the
Secretary-General, the first part of these works (Phase A), which ultimately
extends for a distance of 150 kilometres, was declared completed on 31 July
2003. It is reported that approximately 56,000 Palestinians would be
encompassed in enclaves. During this phase, two sections totalling 19.5
kilometres were built around Jerusalem. In November 2003 construction of a new
section was begun along the Green Line to the west of the Nazlat Issa-Baqa
al-Sharqiya enclave, which in January 2004 was close to completion at the time
when the Secretary-General submitted his Written Statement.

According to the Written Statement of the
Secretary-General, the works carried out under Phase B were still in progress
in January 2004. Thus an initial section of this stretch, which runs near or on
the Green Line to the village of al-Mutilla, was almost complete in January
2004. Two additional sections diverge at this point. Construction started in
early January 2004 on one section that runs due east as far as the Jordanian
border. Construction of the second section, which is planned to run from the
Green Line to the village of Taysir, has barely begun. The United Nations has,
however, been informed that this second section might not be built.

The Written Statement of the Secretary-General
further states that Phase C of the work, which runs from the terminus of Phase
A, near the Elkana settlement, to the village of Nu’man, south-east of
Jerusalem, began in December 2003. This section is divided into three stages.
In Stage C1, between inter alia the villages of Rantis and Budrus,
approximately 4 kilometres out of a planned total of 40 kilometres have been
constructed. Stage C2, which will surround the so-called
“Ariel Salient” by cutting 22 kilometres into the West Bank, will incorporate
52,000 Israeli settlers. Stage C3 is to involve the construction of two
“depth barriers”; one of these is to run north-south, roughly parallel with the
section of Stage C1 currently under construction between Rantis and Budrus,
whilst the other runs east-west along a ridge said to be part of the route of
Highway 45, a motorway under construction. If construction of the two barriers
were completed, two enclaves would be formed, encompassing 72,000 Palestinians
in 24 communities.

Further construction also started in late
November 2003 along the south-eastern part of the municipal boundary of
Jerusalem, following a route that, according to the Written Statement of the
Secretary-General, cuts off the suburban village of El-Ezariya from Jerusalem
and splits the neighbouring Abu Dis in two.

As at 25 January 2004, according to the Written
Statement of the Secretary-General, some 190 kilometres of construction had
been completed, covering Phase A and the greater part of Phase B. Further
construction in Phase C had begun in certain areas of the central West Bank and
in Jerusalem. Phase D, planned for the southern part of the West Bank, had not yet begun.

The Israeli Government has explained that the routes
and timetable as described above are subject to modification. In February 2004,
for example, an 8-kilometre section near the town of Baqa al-Sharqiya was
demolished, and the planned length of the wall appears to have been slightly
reduced.

82. According to the description in the report
and the Written Statement of the Secretary-General, the works planned or
completed have resulted or will result in a complex consisting essentially of:

(1) a fence with
electronic sensors;

(2) a ditch (up to 4
metres deep);

(3) a two-lane asphalt
patrol road;

(4) a trace road (a
strip of sand smoothed to detect footprints) running parallel to the fence; (5)
a stack of six coils of barbed wire marking the perimeter of the complex.

The complex has a width of 50 to 70 metres,
increasing to as much as 100 metres in some places. “Depth barriers” may be
added to these works.

The approximately 180 kilometres of the complex
completed or under construction as of the time when the Secretary-General
submitted his report included some 8.5 kilometres of concrete wall. These are
generally found where Palestinian population centres are close to or abut
Israel (such as near Qalqiliya and Tulkarm or in parts of Jerusalem).

83. According to the report of the
Secretary-General, in its northernmost part, the wall as completed or under
construction barely deviates from the Green Line. It nevertheless lies within
occupied territories for most of its course. The works deviate more than 7.5
kilometres from the Green Line in certain places to encompass settlements,
while encircling Palestinian population areas. A stretch of 1 to 2 kilometres
west of Tulkarm appears to run on the Israeli side of the Green Line. Elsewhere,
on the other hand, the planned route would deviate eastward by up to

22 kilometres. In the case of Jerusalem, the
existing works and the planned route lie well beyond the Green Line and even in
some cases beyond the eastern municipal boundary of Jerusalem as fixed by
Israel.

84. On the basis of that route, approximately
975 square kilometres (or 16.6 per cent of the West Bank) would, according to
the report of the Secretary-General, lie between the Green Line and the wall. This
area is stated to be home to 237,000 Palestinians. If the full

wall were completed as planned, another 160,000
Palestinians would live in almost completely encircled communities, described
as enclaves in the report. As a result of the planned route, nearly 320,000
Israeli settlers (of whom 178,000 in East Jerusalem) would be living in the
area between the Green Line and the wall.

85. Lastly, it should be noted that the
construction of the wall has been accompanied by the creation of a new
administrative régime. Thus in October 2003 the Israeli Defence Forces issued
Orders establishing the part of the West Bank lying between the Green Line and
the wall as a “Closed Area”. Residents of this area may no longer remain in it,
nor may non-residents enter it, unless holding a permit or identity card issued
by the Israeli authorities. According to the report of the Secretary-General,
most residents have received permits for a limited period. Israeli citizens,
Israeli permanent residents and those eligible to immigrate to Israel in
accordance with the Law of Return may remain in, or move freely to, from and
within the Closed Area without a permit. Access to and exit from the Closed
Area can only be made through access gates, which are opened infrequently and
for short periods.

86. The Court will now determine the rules and
principles of international law which are relevant in assessing the legality of
the measures taken by Israel. Such rules and principles can be found in the
United Nations Charter and certain other treaties, in customary international
law and in the relevant resolutions adopted pursuant to the Charter by the
General Assembly and the Security Council. However, doubts have been expressed
by Israel as to the applicability in the Occupied Palestinian Territory of
certain rules of international humanitarian law and human rights instruments. The
Court will now consider these various questions.

87. The Court first recalls that, pursuant to
Article 2, paragraph 4, of the United Nations Charter:

“All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations.”

On 24 October 1970, the General Assembly
adopted resolution 2625 (XXV), entitled “Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States”
(hereinafter “resolution 2625 (XXV)”), in which it emphasized that “No
territorial acquisition resulting from the threat or use of force shall be
recognized as legal.” As the Court stated in its Judgment in the case
concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), the principles as to the use of force
incorporated in the Charter reflect customary international law (see I.C.J.
Reports 1986, pp. 98-101, paras. 187-190); the same is true of its corollary
entailing the illegality of territorial acquisition resulting from the threat
or use of force.

88. The Court also notes that the principle of
self-determination of peoples has been enshrined in the United Nations Charter
and reaffirmed by the General Assembly in resolution 2625 (XXV) cited above,
pursuant to which “Every State has the duty to refrain from any forcible action
which deprives peoples referred to [in that resolution] . . . of their right to
self-determination.” Article 1 common to the International Covenant on
Economic, Social and Cultural Rights and the International Covenant on Civil and
Political Rights

reaffirms the right of all peoples to
self-determination, and lays upon the States parties the obligation to promote
the realization of that right and to respect it, in conformity with the
provisions of the United Nations Charter.

The Court would recall that in 1971 it
emphasized that current developments in “international
law in regard to non-self-governing territories, as enshrined in the Charter of
the United Nations, made the principle of self-determination applicable to all
[such territories]”. The Court went on to state that “These developments leave
little doubt that the ultimate objective of the sacred trust” referred to in
Article 22, paragraph 1, of the Covenant of the League of Nations “was the
self-determination . . . of the peoples concerned” (Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,
I.C.J. Reports 1971, p. 31, paras. 52-53). The Court has referred to this
principle on a number of occasions in its jurisprudence (ibid.; see also
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 68, para. 162). The
Court indeed made it clear that the right of peoples to self-determination is
today a right erga omnes (see East Timor (Portugal v. Australia), Judgment,
I.C.J. Reports 1995, p. 102, para. 29).

89. As regards international humanitarian law,
the Court would first note that Israel is not a party to the Fourth Hague
Convention of 1907, to which the Hague Regulations are
annexed. The Court observes that, in the words of the Convention, those
Regulations were prepared “to revise the general laws and customs of war”
existing at that time. Since then, however, the International Military Tribunal
of Nuremberg has found that the “rules laid down in the Convention were
recognised by all civilised nations, and were regarded as being declaratory of
the laws and customs of war” (Judgment of the International Military Tribunal
of Nuremberg, 30 September and 1 October 1946, p. 65). The Court itself reached
the same conclusion when examining the rights and duties of belligerents in
their conduct of military operations (Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 256, para. 75). The
Court considers that the provisions of the Hague Regulations have become part
of customary law, as is in fact recognized by all the participants in the
proceedings before the Court.

The Court also observes that, pursuant to
Article 154 of the Fourth Geneva Convention, that Convention is supplementary
to Sections II and III of the Hague Regulations. Section III of those
Regulations, which concerns “Military authority over the territory of the
hostile State”, is particularly pertinent in the present case.

90. Secondly, with regard to the Fourth Geneva
Convention, differing views have been expressed by the participants in these
proceedings. Israel, contrary to the great majority of the other participants,
disputes the applicability de jure of the Convention to the Occupied
Palestinian Territory. In particular, in paragraph 3 of Annex I to the report
of the Secretary-General, entitled “Summary Legal Position of the Government of
Israel”, it is stated that Israel does not agree that the Fourth Geneva
Convention “is applicable to the occupied Palestinian Territory”, citing “the
lack of recognition of the territory as sovereign prior to its annexation by
Jordan and Egypt” and inferring that it is “not a territory of a High Contracting
Party as required by the Convention”.

91. The Court would recall that the Fourth
Geneva Convention was ratified by Israel on 6 July 1951 and that Israel is a party to that Convention. Jordan has also been a party thereto since
29 May 1951. Neither of the two States has made any
reservation that would be pertinent to the present proceedings.

Furthermore, Palestine gave a unilateral undertaking, by
declaration of 7 June 1982, to apply the Fourth Geneva Convention. Switzerland, as depositary State, considered that unilateral
undertaking valid. It concluded, however, that it “[was] not ~ as a depositary
~

in a position to decide whether” “the request
[dated 14 June 1989] from the Palestine Liberation Movement in the name of the
‘State of Palestine’ to accede” inter alia to the Fourth Geneva Convention “can
be considered as an instrument of accession”.

92. Moreover, for the purpose of determining
the scope of application of the Fourth Geneva Convention, it should be recalled
that under common Article 2 of the four Conventions of 12 August 1949:

“In addition to the provisions which shall be
implemented in peacetime, the present Convention shall apply to all cases of
declared war or of any other armed conflict which may arise between two or more
of the High Contracting Parties, even if the state of war is not recognized by
one of them.

The Convention shall also apply to all cases of
partial or total occupation of the territory of a High Contracting Party, even
if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not
be a party to the present Convention, the Powers who are parties thereto shall
remain bound by it in their mutual relations. They shall furthermore be bound
by the Convention in relation to the said Power, if the latter accepts and
applies the provisions thereof.”

93. After the occupation of the West Bank in
1967, the Israeli authorities issued an order No. 3 stating in its Article 35
that:

“the Military Court .
. . must apply the provisions of the Geneva Convention dated 12 August 1949
relative to the Protection of Civilian Persons in Time of War with respect to
judicial procedures. In case of conflict between this Order and the said
Convention, the Convention shall prevail.”

Subsequently, the Israeli authorities have
indicated on a number of occasions that in fact they generally apply the
humanitarian provisions of the Fourth Geneva Convention within the occupied
territories. However, according to Israel’s position as briefly recalled in
paragraph 90 above, that Convention is not applicable de jure within those
territories because, under Article 2, paragraph 2, it applies only in the case
of occupation of territories falling under the sovereignty of a High
Contracting Party involved in an armed conflict. Israel explains that Jordan
was admittedly a party to the Fourth Geneva Convention in 1967, and that an
armed conflict broke out at that time between Israel and Jordan, but it goes on
to observe that the territories occupied by Israel subsequent to that conflict
had not previously fallen under Jordanian sovereignty. It infers from this that
that Convention is not applicable de jure in those territories. According
however to the great majority of other participants in the proceedings, the
Fourth Geneva Convention is applicable to those territories pursuant to Article
2, paragraph 1, whether or not Jordan had any rights in respect thereof prior
to 1967.

94. The Court would recall that, according to
customary international law as expressed in Article 31 of the Vienna Convention
on the Law of Treaties of 23 May 1969, a treaty must be interpreted in good
faith in accordance with the ordinary meaning to be given to its terms in their
context and in the light of its object and purpose. Article 32 provides
that:

“Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning resulting from
the application of article 31, or to determine the meaning when the
interpretation according to

article 31 . . . leaves the meaning
ambiguous or obscure; or . . . leads to a result which is manifestly obscure or
unreasonable.” (See Oil Platforms (Islamic Republic of Iran v. United States of
America), Preliminary Objections, I.C.J. Reports 1996 (II), p. 812, para. 23;
see, similarly, Kasikili/Sedudu Island (Botswana/Namibia), I.C.J. Reports 1999
(II), p. 1059, para. 18, and Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37.)

95. The Court notes that, according to the
first paragraph of Article 2 of the Fourth Geneva Convention, that Convention
is applicable when two conditions are fulfilled: that there exists an armed
conflict (whether or not a state of war has been recognized); and that the
conflict has arisen between two contracting parties. If those two conditions
are satisfied, the Convention applies, in particular, in any territory occupied
in the course of the conflict by one of the contracting parties.

The object of the second paragraph of Article 2
is not to restrict the scope of application of the Convention, as defined by
the first paragraph, by excluding therefrom territories not falling under the sovereignty
of one of the contracting parties. It is directed simply to making it clear
that, even if occupation effected during the conflict met no armed resistance,
the Convention is still applicable.

This interpretation reflects the intention of
the drafters of the Fourth Geneva Convention to protect civilians who find
themselves, in whatever way, in the hands of the occupying Power. Whilst the
drafters of the Hague Regulations of 1907 were as much concerned with
protecting the rights of a State whose territory is occupied, as with
protecting the inhabitants of that territory, the drafters of the Fourth Geneva
Convention sought to guarantee the protection of civilians in time of war,
regardless of the status of the occupied territories, as is shown by Article 47
of the Convention.

That interpretation is confirmed by the
Convention’s travaux préparatoires. The Conference of Government Experts
convened by the International Committee of the Red Cross (hereinafter, “ICRC”)
in the aftermath of the Second World War for the purpose of preparing the new
Geneva Conventions recommended that these conventions be applicable to any
armed conflict “whether [it] is or is not recognized as a state of war by the
parties” and “in cases of occupation of territories in the absence of any state
of war” (Report on the Work of the Conference of Government Experts for the
Study of the Conventions for the Protection of War Victims, Geneva, 14-26 April
1947, p. 8). The drafters of the second paragraph of Article 2 thus had no
intention, when they inserted that paragraph into the Convention, of
restricting the latter’s scope of application. They were merely seeking to
provide for cases of occupation without combat, such as the occupation of
Bohemia and Moravia by Germany in 1939.

96. The Court would moreover note that the
States parties to the Fourth Geneva Convention approved that interpretation at
their Conference on 15 July 1999. They issued a statement in which they
“reaffirmed the applicability of the Fourth Geneva Convention to the Occupied
Palestinian Territory, including East Jerusalem”. Subsequently, on 5 December
2001, the High Contracting Parties, referring in particular to Article 1 of the
Fourth Geneva Convention of 1949, once again reaffirmed the “applicability of
the Fourth Geneva Convention to the Occupied Palestinian Territory, including
East Jerusalem”. They further reminded the Contracting Parties participating in
the Conference, the parties to the conflict, and the State of Israel as
occupying Power, of their respective obligations.

97. Moreover, the Court would observe that the
ICRC, whose special position with respect to execution of the Fourth Geneva
Convention must be “recognized and respected at all times” by the parties
pursuant to Article 142 of the Convention, has also expressed its

opinion on the interpretation to be given
to the Convention. In a declaration of 5 December 2001, it recalled that “the
ICRC has always affirmed the de jure applicability of the Fourth Geneva
Convention to the territories occupied since 1967 by the State of Israel,
including East Jerusalem”.

98. The Court notes that the General Assembly
has, in many of its resolutions, taken a position to the same effect. Thus on
10 December 2001 and 9 December 2003, in resolutions 56/60 and 58/97, it
reaffirmed “that the Geneva Convention relative to the Protection of Civilian
Persons in Time of War, of 12 August 1949, is applicable to the Occupied
Palestinian Territory, including East Jerusalem, and other Arab territories
occupied by Israel since 1967”.

99. The Security Council, for its part, had
already on 14 June 1967 taken the view in resolution 237 (1967) that “all the
obligations of the Geneva Convention relative to the Treatment of Prisoners of
War . . . should be complied with by the parties involved in the conflict”.

Subsequently, on 15 September 1969, the
Security Council, in resolution 271 (1969), called upon “Israel scrupulously to
observe the provisions of the Geneva Conventions and international law
governing military occupation”.

Ten years later, the Security Council examined
“the policy and practices of Israel in establishing settlements in the
Palestinian and other Arab territories occupied since 1967”. In resolution 446
(1979) of 22 March 1979, the Security Council considered that those settlements
had “no legal validity” and affirmed “once more that the Geneva Convention
relative to the Protection of Civilian Persons in Time of War, of 12 August
1949, is applicable to the Arab territories occupied by Israel since 1967,
including Jerusalem”. It called “once more upon Israel, as the occupying Power,
to abide scrupulously” by that Convention.

On 20 December 1990, the Security Council, in
resolution 681 (1990), urged “the Government of Israel to accept the de jure
applicability of the Fourth Geneva Convention . . . to all the territories
occupied by Israel since 1967 and to abide scrupulously by the provisions of
the Convention”. It further called upon “the high contracting parties to the
said Fourth Geneva Convention to ensure respect by Israel, the occupying Power,
for its obligations under the Convention in accordance with article 1 thereof”.

Lastly, in resolutions 799 (1992) of 18
December 1992 and 904 (1994) of 18 March 1994, the Security Council reaffirmed
its position concerning the applicability of the Fourth Geneva Convention in
the occupied territories.

100. The Court would note finally that the
Supreme Court of Israel, in a judgment dated 30 May 2004, also found that:

“The military operations of the [Israeli Defence
Forces] in Rafah, to the extent they affect civilians, are governed by Hague
Convention IV Respecting the Laws and Customs of War on Land 1907 . . . and the
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
1949.”

101. In view of the foregoing, the Court
considers that the Fourth Geneva Convention is applicable in any occupied
territory in the event of an armed conflict arising between two or more High
Contracting Parties. Israel and Jordan were parties to that Convention when the
1967 armed conflict broke out. The Court accordingly finds that that Convention
is applicable in the Palestinian territories which before the conflict lay to
the east of the Green Line and which, during that conflict, were occupied by
Israel, there being no need for any

enquiry into the precise prior status of
those territories. *

102. The participants in the proceedings before
the Court also disagree whether the international human rights conventions to
which Israel is party apply within the Occupied Palestinian Territory. Annex I to the report of the Secretary-General states:

“4. Israel denies that the International
Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights, both of which it has
signed, are applicable to the occupied Palestinian territory. It asserts that
humanitarian law is the protection granted in a conflict situation such as the
one in the West Bank and Gaza Strip, whereas human rights treaties were
intended for the protection of citizens from their own Government in times of
peace.”

Of the other participants in the proceedings,
those who addressed this issue contend that, on the contrary, both Covenants
are applicable within the Occupied Palestinian Territory.

103. On 3 October 1991 Israel ratified both the
International Covenant on Economic, Social and Cultural Rights of 19 December
1966 and the International Covenant on Civil and Political Rights of the same
date, as well as the United Nations Convention on the Rights of the Child of 20
November 1989. It is a party to these three instruments.

104. In order to determine whether these texts
are applicable in the Occupied Palestinian Territory, the Court will first
address the issue of the relationship between international humanitarian law
and human rights law and then that of the applicability of human rights
instruments outside national territory.

105. In its Advisory Opinion of 8 July 1996 on
the Legality of the Threat or Use of Nuclear Weapons, the Court had occasion to
address the first of these issues in relation to the International Covenant on
Civil and Political Rights. In those proceedings certain States had argued that
“the Covenant was directed to the protection of human rights in peacetime, but
that questions relating to unlawful loss of life in hostilities were governed
by the law applicable in armed conflict” (I.C.J. Reports 1996 (I), p. 239,
para. 24).

The Court rejected this argument,
stating that:

“the protection of the
International Covenant of Civil and Political Rights does not cease in times of
war, except by operation of Article 4 of the Covenant whereby certain
provisions may be derogated from in a time of national emergency. Respect for
the right to life is not, however, such a provision. In principle, the right
not arbitrarily to be deprived of one’s life applies also in hostilities. The
test of what is an arbitrary deprivation of life, however, then falls to be
determined by the applicable lex specialis, namely, the law applicable in armed
conflict which is designed to regulate the conduct of hostilities.” (Ibid., p. 240, para. 25.)

106. More generally, the Court considers that
the protection offered by human rights conventions does not cease in case of
armed conflict, save through the effect of provisions for derogation of the
kind to be found in Article 4 of the International Covenant on Civil and
Political Rights. As regards the relationship between international
humanitarian law

and human rights law, there are thus three
possible situations: some rights may be exclusively matters of international

humanitarian law; others may be exclusively
matters of human rights law; yet others may be matters of both these branches
of international law. In order to answer the question put to it, the Court will
have to take into consideration both these branches of international law,
namely human rights law and, as lex specialis, international humanitarian law.

107. It remains to be determined whether the
two international Covenants and the Convention on the Rights of the Child are
applicable only on the territories of the States parties thereto or whether
they are also applicable outside those territories and, if so, in what
circumstances.

108. The scope of application of the
International Covenant on Civil and Political Rights is defined by Article 2,
paragraph 1, thereof, which provides:

“Each State Party to the present Covenant
undertakes to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status.”

This provision can be interpreted as covering
only individuals who are both present within a State’s territory and subject to
that State’s jurisdiction. It can also be construed as covering both
individuals present within a State’s territory and those outside that territory
but subject to that State’s jurisdiction. The Court will thus seek to determine
the meaning to be given to this text.

109. The Court would observe that, while the
jurisdiction of States is primarily territorial, it may sometimes be exercised
outside the national territory. Considering the object and purpose of the
International Covenant on Civil and Political Rights, it would seem natural
that, even when such is the case, States parties to the Covenant should be
bound to comply with its provisions.

The constant practice of the Human Rights
Committee is consistent with this. Thus, the Committee has found the Covenant
applicable where the State exercises its jurisdiction on foreign territory. It
has ruled on the legality of acts by Uruguay in cases of arrests carried out by
Uruguayan agents in Brazil or Argentina (case No. 52/79, López Burgos v.
Uruguay; case No. 56/79, Lilian Celiberti de Casariego v. Uruguay). It decided
to the same effect in the case of the confiscation of a passport by a Uruguayan
consulate in Germany (case No. 106/81, Montero v. Uruguay).

The travaux préparatoires of the Covenant
confirm the Committee’s interpretation of Article 2 of that instrument. These
show that, in adopting the wording chosen, the drafters of the Covenant did not
intend to allow States to escape from their obligations when they exercise
jurisdiction outside their national territory. They only intended to prevent
persons residing abroad from asserting, vis-à-vis their State of origin, rights
that do not fall within the competence of that State, but of that of the State
of residence (see the discussion of the preliminary draft in the Commission on
Human Rights, E/CN.4/SR.194, para. 46; and United Nations, Official Records of
the General Assembly, Tenth Session, Annexes, A/2929, Part II, Chap. V, para. 4
(1955)).

110. The Court takes note in this connection of
the position taken by Israel, in relation to the applicability of the Covenant,
in its communications to the Human Rights Committee,

and of the view of the Committee.

In 1998, Israel stated that, when preparing its
report to the Committee, it had had to face the question “whether individuals
resident in the occupied territories were indeed subject to Israel’s
jurisdiction” for purposes of the application of the Covenant (CCPR/C/SR.1675,
para. 21). Israel took the position that “the Covenant and similar instruments
did not apply directly to the current situation in the occupied territories” (ibid., para. 27).

The Committee, in its concluding observations
after examination of the report, expressed concern at Israel’s attitude and
pointed “to the long-standing presence of Israel in [the occupied] territories,
Israel’s ambiguous attitude towards their future status, as well as the
exercise of effective jurisdiction by Israeli security forces therein”
(CCPR/C/79/Add.93, para. 10). In 2003 in face of Israel’s consistent position,
to the effect that “the Covenant does not apply beyond its own territory,
notably in the West Bank and Gaza . . .”, the
Committee reached the following conclusion:

“in the current circumstances, the provisions
of the Covenant apply to the benefit of the population of the Occupied
Territories, for all conduct by the State party’s authorities or agents in
those territories that affect the enjoyment of rights enshrined in the Covenant
and fall within the ambit of State responsibility of Israel under the
principles of public international law” (CCPR/CO/78/ISR, para. 11).

111. In conclusion, the Court considers that
the International Covenant on Civil and Political Rights is applicable in
respect of acts done by a State in the exercise of its jurisdiction outside its
own territory.

112. The International Covenant on Economic,
Social and Cultural Rights contains no provision on its scope of application. This
may be explicable by the fact that this Covenant guarantees rights which are
essentially territorial. However, it is not to be excluded that it applies both
to territories over which a State party has sovereignty and to those over which
that State exercises territorial jurisdiction. Thus Article 14 makes provision
for transitional measures in the case of any State which “at the time of
becoming a Party, has not been able to secure in its
metropolitan territory or other territories under its jurisdiction compulsory primary
education, free of charge”.

It is not without relevance to recall in this
regard the position taken by Israel in its reports to the Committee on
Economic, Social and Cultural Rights. In its initial report to the Committee of
4 December 1998, Israel provided “statistics indicating the enjoyment of the
rights enshrined in the Covenant by Israeli settlers in the occupied
Territories”. The Committee noted that, according to Israel, “the Palestinian
population within the same jurisdictional areas were excluded from both the
report and the protection of the Covenant” (E/C.12/1/Add. 27, para. 8).
The Committee expressed

its concern in this regard, to which Israel
replied in a further report of 19 October 2001 that it has “consistently
maintained that the Covenant does not apply to areas that are not subject to
its sovereign territory and jurisdiction” (a formula inspired by the language
of the International Covenant on Civil and Political Rights). This position, continued Israel, is “based on the well-established
distinction between human rights and humanitarian law under international law”.
It added: “the Committee’s mandate cannot relate to events in the West Bank and
the Gaza Strip, inasmuch as they are part and parcel of the context of armed
conflict as distinct from a relationship of human rights” (E/1990/6/Add. 32,
para. 5). In view of these observations, the Committee reiterated its concern
about Israel’s position and reaffirmed “its view that the State party’s
obligations under the Covenant apply to all territories and populations under
its effective control” (E/C.12/1/Add.90, paras. 15 and 31).

For the reasons explained in paragraph 106
above, the Court cannot accept Israel’s view. It would also observe that the
territories occupied by Israel have for over 37 years been subject to its
territorial jurisdiction as the occupying Power. In the exercise of the powers
available to it on this basis, Israel is bound by the provisions of the
International Covenant on Economic, Social and Cultural Rights. Furthermore, it
is under an obligation not to raise any obstacle to the exercise of such rights
in those fields where competence has been transferred to Palestinian
authorities.

113. As regards the Convention on the Rights of
the Child of 20 November 1989, that instrument contains an Article 2 according
to which “States Parties shall respect and ensure the rights set forth in the .
. . Convention to each child within their jurisdiction . . .”.
That Convention is therefore applicable within the Occupied Palestinian
Territory.

114. Having determined the rules and principles
of international law relevant to reply to the question posed by the General
Assembly, and having ruled in particular on the applicability within the
Occupied Palestinian Territory of international humanitarian law and human
rights law, the Court will now seek to ascertain whether the construction of
the wall has violated those rules and principles.

*

115. In this regard, Annex II to the report of
the Secretary-General, entitled “Summary Legal Position of the Palestine
Liberation Organization”, states that “The construction of the Barrier is an
attempt to annex the territory contrary to international law” and that “The de
facto annexation of land interferes with the territorial sovereignty and
consequently with the right of the Palestinians to

self-determination.” This view was echoed in certain
of the written statements submitted to the Court and in the views expressed at
the hearings. Inter alia, it was contended that: “The wall severs the
territorial sphere over which the Palestinian people are entitled to exercise
their right of self-determination and constitutes a violation of the legal
principle prohibiting the acquisition of territory by the use of force.” In
this connection, it was in particular emphasized that “The route of the wall is
designed to change the demographic composition of the Occupied Palestinian
Territory, including East Jerusalem, by reinforcing the Israeli settlements”
illegally established on the Occupied Palestinian Territory. It was further
contended that the wall aimed at “reducing and parcelling out the territorial
sphere over which the Palestinian people are entitled to exercise their right
of self-determination”.

116. For its part, Israel has argued that the
wall’s sole purpose is to enable it effectively to combat terrorist attacks
launched from the West Bank. Furthermore, Israel has repeatedly stated that the
Barrier is a temporary measure (see report of the Secretary-General, para. 29).
It did so inter alia through its Permanent Representative to the United Nations
at the Security Council meeting of 14 October 2003, emphasizing that “[the
fence] does not annex territories to the State of Israel”, and that Israel is
“ready and able, at tremendous cost, to adjust or dismantle a fence if so
required as part of a political settlement” (S/PV.4841, p. 10). Israel’s
Permanent Representative restated this view before the General Assembly on 20
October and 8 December 2003. On this latter occasion, he added: “As soon as the
terror ends, the fence will no longer be necessary. The fence is not a border
and has no political significance. It does not change the legal status of the territory
in any way.” (A/ES-10/PV.23, p. 6.)

117. The Court would recall that both the
General Assembly and the Security Council have referred, with regard to
Palestine, to the customary rule of “the inadmissibility of the acquisition of
territory by war” (see paragraphs 74 and 87 above). Thus in resolution 242
(1967) of 22 November 1967, the Security Council, after recalling this rule,
affirmed that:

“the fulfilment of
Charter principles requires the establishment of a just and lasting peace in
the Middle East which should include the application of both the following
principles:

(i) Withdrawal of Israel armed forces from
territories occupied in the recent conflict;

(ii) Termination of all claims or states of
belligerency and respect for and acknowledgement of the sovereignty,
territorial integrity and political independence of every State in the area and
their right to live in peace within secure and recognized boundaries free from
threats or acts of force”.

It is on this same basis that the Council has
several times condemned the measures taken by Israel to change the status of
Jerusalem (see paragraph 75 above).

118. As regards the principle of the right of peoples
to self-determination, the Court observes that the existence of a “Palestinian
people” is no longer in issue. Such existence has moreover been recognized by
Israel in the exchange of letters of 9 September 1993 between Mr. Yasser
Arafat, President of the Palestine Liberation Organization (PLO) and Mr.
Yitzhak Rabin, Israeli Prime Minister. In that correspondence, the President of
the PLO recognized “the right of the State of Israel to exist in peace and
security” and made various other commitments. In reply, the Israeli Prime
Minister informed him that, in the light of those commitments, “the Government
of Israel has decided to recognize the PLO as the representative of the
Palestinian people”. The Israeli-Palestinian Interim Agreement on the West Bank
and the Gaza Strip of 28 September 1995 also refers a number of times to the
Palestinian people and its “legitimate rights” (Preamble, paras. 4, 7, 8; Article II, para. 2; Article III,
paras. 1 and 3; Article XXII, para. 2). The Court considers that those rights include the right to
self-determination, as the General Assembly has moreover recognized on a number
of occasions (see, for example, resolution 58/163 of 22 December 2003).

119. The Court notes that the route of the wall
as fixed by the Israeli Government includes within the “Closed Area” (see
paragraph 85 above) some 80 per cent of the settlers living in the Occupied
Palestinian Territory. Moreover, it is apparent from an examination of the map
mentioned in paragraph 80 above that the wall’s sinuous route has been traced
in such a way as to include within that area the great majority of the Israeli
settlements in the occupied Palestinian Territory (including East Jerusalem).

120. As regards these settlements, the Court
notes that Article 49, paragraph 6, of the Fourth Geneva Convention provides:
“The Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies.” That provision prohibits not only
deportations or forced transfers of population such as those carried out during
the Second World War, but also any measures taken by an occupying Power in
order to organize or encourage transfers of parts of its own population into
the occupied territory.

In this respect, the information provided to
the Court shows that, since 1977, Israel

123. The construction of the wall also raises a
number of issues in relation to the

has conducted a policy and developed practices
involving the establishment of settlements in the Occupied Palestinian
Territory, contrary to the terms of Article 49, paragraph 6, just cited.

The Security Council has thus taken the view
that such policy and practices “have no legal validity”. It has also called
upon “Israel, as the occupying Power, to abide scrupulously” by the Fourth
Geneva Convention and:

“to rescind its previous measures and to desist
from taking any action which would result in changing the legal status and
geographical nature and materially affecting the demographic composition of the
Arab territories occupied since 1967, including Jerusalem and, in particular,
not to transfer parts of its own civilian population into the occupied Arab
territories” (resolution 446 (1979) of 22 March 1979).

The Council reaffirmed its position in
resolutions 452 (1979) of 20 July 1979 and 465 (1980) of 1 March 1980. Indeed,
in the latter case it described “Israel’s policy and practices of settling
parts of its population and new immigrants in [the occupied] territories” as a
“flagrant violation” of the Fourth Geneva Convention.

The Court concludes that the Israeli
settlements in the Occupied Palestinian Territory (including East Jerusalem) have
been established in breach of international law.

121. Whilst the Court notes the assurance given
by Israel that the construction of the wall does not amount to annexation and
that the wall is of a temporary nature (see paragraph 116 above), it nevertheless
cannot remain indifferent to certain fears expressed to it that the route of
the wall will prejudge the future frontier between Israel and Palestine, and
the fear that Israel may integrate the settlements and their means of access. The
Court considers that the construction of the wall and its associated régime
create a “fait accompli” on the ground that could well become permanent, in
which case, and notwithstanding the formal characterization of the wall by
Israel, it would be tantamount to de facto annexation.

122. The Court recalls moreover that, according
to the report of the Secretary-General, the planned route would incorporate in
the area between the Green Line and the wall more than 16 per cent of the
territory of the West Bank. Around 80 per cent of the settlers living in the
Occupied Palestinian Territory, that is 320,000 individuals, would reside in
that area, as well as 237,000 Palestinians. Moreover, as a result of the
construction of the wall, around 160,000 other Palestinians would reside in
almost completely encircled communities (see paragraphs 84, 85 and 119 above).

In other terms, the route chosen for the wall
gives expression in loco to the illegal measures taken by Israel with regard to
Jerusalem and the settlements, as deplored by the Security Council (see
paragraphs 75 and 120 above). There is also a risk of further alterations to
the demographic composition of the Occupied Palestinian Territory resulting
from the construction of the wall inasmuch as it is contributing, as will be
further explained in paragraph 133 below, to the departure of Palestinian
populations from certain areas. That construction, along with measures taken
previously, thus severely impedes the exercise by the Palestinian people of its
right to self-determination, and is therefore a breach of Israel’s obligation
to respect that right.

*

relevant provisions of international
humanitarian law and of human rights instruments.

124. With regard to the Hague Regulations of
1907, the Court would recall that these deal, in Section II, with hostilities
and in particular with “means of injuring the enemy, sieges, and bombardments”.
Section III deals with military authority in occupied
territories. Only Section III is currently applicable in the West Bank
and Article 23 (g) of the Regulations, in Section II, is thus not pertinent.

Section III of the Hague Regulations includes
Articles 43, 46 and 52, which are applicable in the Occupied Palestinian
Territory. Article 43 imposes a duty on the occupant to “take all measures
within his power to restore, and, as far as possible, to insure public order
and life, respecting the laws in force in the country”. Article 46 adds that
private property must be “respected” and that it cannot “be confiscated”. Lastly,
Article 52 authorizes, within certain limits, requisitions in kind and services
for the needs of the army of occupation.

125. A distinction is also made in the Fourth
Geneva Convention between provisions applying during military operations
leading to occupation and those that remain applicable throughout the entire
period of occupation. It thus states in Article 6:

“The present Convention shall apply from the
outset of any conflict or occupation mentioned in Article 2.

In the territory of Parties to the conflict,
the application of the present Convention shall cease on the general close of
military operations.

In the case of occupied territory, the
application of the present Convention shall cease one year after the general
close of military operations; however, the Occupying Power shall be bound, for
the duration of the occupation, to the extent that such Power exercises the
functions of government in such territory, by the provisions of the following
Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53,
59, 61 to 77, 143.

Protected persons whose release, repatriation
or re-establishment may take place after such dates shall meanwhile continue to
benefit by the present Convention.”

Since the military operations leading to the
occupation of the West Bank in 1967 ended a long time ago, only those Articles
of the Fourth Geneva Convention referred to in Article 6, paragraph 3, remain
applicable in that occupied territory.

126. These provisions include Articles 47, 49,
52, 53 and 59 of the Fourth Geneva Convention.

According to Article 47:

“Protected persons who are in occupied
territory shall not be deprived, in any case or in any manner whatsoever, of
the benefits of the present Convention by any change introduced, as the result
of the occupation of a territory, into the institutions or government of the
said territory, nor by any agreement concluded between the authorities of the
occupied territories and the Occupying Power, nor by any annexation by the
latter of the whole or part of the occupied territory.”

Article 49 reads as follows:

“Individual or mass forcible transfers, as well
as deportations of protected persons from occupied territory to the territory
of the Occupying Power or to that of any other country, occupied or not, are
prohibited, regardless of their motive.

Nevertheless, the Occupying Power may undertake
total or partial evacuation of a given area if the security of the population
or imperative military reasons so demand. Such evacuations may not involve the
displacement of protected persons outside the bounds of the occupied territory
except when for material reasons it is impossible to avoid such displacement. Persons
thus evacuated shall be transferred back to their homes as soon as hostilities
in the area in question have ceased.

The Occupying Power undertaking such transfers
or evacuations shall ensure, to the greatest practicable extent, that proper
accommodation is provided to receive the protected persons,
that the removals are effected in satisfactory conditions of hygiene,
health, safety and nutrition, and that members of the same family are not
separated.

The Protecting Power shall be informed of any
transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected
persons in an area particularly exposed to the dangers of war unless the
security of the population or imperative military reasons so demand.

The Occupying Power shall not deport or
transfer parts of its own civilian population into the territory it occupies.”

According to Article 52:

“No contract, agreement or regulation shall
impair the right of any worker, whether voluntary or not and wherever he may
be, to apply to the representatives of the Protecting Power in order to request
the said Power’s intervention.

All measures aiming at creating unemployment or
at restricting the opportunities offered to workers in an occupied territory,
in order to induce them to work for the Occupying Power, are prohibited.”

Article 53 provides that:

“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
organizations, is prohibited, except where such destruction is rendered
absolutely necessary by military operations.”

Lastly, according to Article 59:

“If the whole or part of the population of an
occupied territory is inadequately supplied, the Occupying Power shall agree to
relief schemes on behalf of the said population, and shall facilitate them by
all the means at its

disposal.

Such schemes, which may be undertaken either by
States or by impartial humanitarian organizations such as the International
Committee of the Red Cross, shall consist, in particular, of the provision of
consignments of foodstuffs, medical supplies and clothing.

All Contracting Parties shall permit the free
passage of these consignments and shall guarantee their protection.

A Power granting free passage to consignments
on their way to territory occupied by an adverse Party to the conflict shall,
however, have the right to search the consignments, to regulate their passage
according to prescribed times and routes, and to be reasonably satisfied
through the Protecting Power that these consignments are to be used for the
relief of the needy population and are not to be used for the benefit of the
Occupying Power.”

127. The International Covenant on Civil and
Political Rights also contains several relevant provisions. Before further
examining these, the Court will observe that Article 4 of the Covenant allows
for derogation to be made, under various conditions, to certain provisions of
that instrument. Israel made use of its right of derogation under this Article
by addressing the following communication to the Secretary-General of the
United Nations on 3 October 1991:

“Since its establishment, the State of Israel
has been the victim of continuous threats and attacks on its very existence as
well as on the life and property of its citizens.

These have taken the form of threats of war, of
actual armed attacks, and campaigns of terrorism resulting in the murder of and
injury to human beings.

In view of the above, the State of Emergency
which was proclaimed in May 1948 has remained in force ever since. This
situation constitutes a public emergency within the meaning of article 4 (1) of
the Covenant.

The Government of Israel has therefore found it
necessary, in accordance with the said article 4, to take measures to the
extent strictly required by the exigencies of the situation, for the defence of
the State and for the protection of life and property, including the exercise
of powers of arrest and detention.

In so far as any of these measures are
inconsistent with article 9 of the Covenant, Israel thereby derogates from its
obligations under that provision.”

The Court notes that the derogation so notified
concerns only Article 9 of the International Covenant on Civil and Political
Rights, which deals with the right to liberty and security of person and lays
down the rules applicable in cases of arrest or detention. The other Articles
of the Covenant therefore remain applicable not only on Israeli territory, but
also on the Occupied Palestinian Territory.

128. Among these mention must be made of
Article 17, paragraph 1 of which reads as follows: “No one shall be subjected
to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour
and reputation.”

Mention must also be made of Article 12,
paragraph 1, which provides: “Everyone lawfully within the territory of a State
shall, within that territory, have the right to liberty of

movement and freedom to choose his
residence.”

129. In addition to the general guarantees of
freedom of movement under Article 12 of the International Covenant on Civil and
Political Rights, account must also be taken of specific guarantees of access
to the Christian, Jewish and Islamic Holy Places. The status of the Christian
Holy Places in the Ottoman Empire dates far back in time, the latest provisions
relating thereto having been incorporated into Article 62 of the Treaty of
Berlin of 13 July 1878. The Mandate for Palestine given to the British
Government on 24 July 1922 included an Article 13, under which:

“All responsibility in connection with the Holy
Places and religious buildings or sites in Palestine, including that of
preserving existing rights and of securing free access to the Holy Places,
religious buildings and sites and the free exercise of worship, while ensuring
the requirements of public order and decorum, is assumed by the Mandatory . .
.”

Article 13 further stated: “nothing in this
mandate shall be construed as conferring . . . authority to interfere with the
fabric or the management of purely Moslem sacred shrines, the immunities of
which are guaranteed”.

In the aftermath of the Second World War, the
General Assembly, in adopting resolution 181 (II) on the future government of
Palestine, devoted an entire chapter of the Plan of Partition to the Holy
Places, religious buildings and sites. Article 2 of this Chapter provided, in
so far as the Holy Places were concerned:

“the liberty of access, visit and transit shall
be guaranteed, in conformity with existing rights, to all residents and
citizens [of the Arab State, of the Jewish State] and of the City of Jerusalem,
as well as to aliens, without distinction as to nationality, subject to
requirements of national security, public order and decorum”.

Subsequently, in the aftermath of the armed
conflict of 1948, the 1949 General Armistice Agreement between Jordan and
Israel provided in Article VIII for the establishment of a special committee
for “the formulation of agreed plans and arrangements for such matters as
either Party may submit to it” for the purpose of enlarging the scope of the
Agreement and of effecting improvement in its application. Such matters, on
which an agreement of principle had already been concluded, included “free
access to the Holy Places”.

This commitment concerned mainly the Holy
Places located to the east of the Green Line. However, some Holy Places were
located west of that Line. This was the case of the Room of the Last Supper and
the Tomb of David, on Mount Zion. In signing the General Armistice Agreement,
Israel thus undertook, as did Jordan, to guarantee freedom of access to the
Holy Places. The Court

considers that this undertaking by Israel has
remained valid for the Holy Places which came under its control in 1967. This
undertaking has further been confirmed by Article 9, paragraph 1, of the 1994
Peace Treaty between Israel and Jordan, by virtue of which, in more general
terms, “Each party will provide freedom of access to places of religious and
historical significance.”

130. As regards the International Covenant on
Economic, Social and Cultural Rights, that instrument includes a number of
relevant provisions, namely: the right to work (Articles 6 and 7); protection
and assistance accorded to the family and to children and young persons
(Article 10); the right to an adequate standard of living, including adequate
food, clothing and housing, and the right “to be free from hunger” (Art. 11);
the right to

health (Art. 12); the right to education
(Arts. 13 and 14).

131. Lastly, the United Nations Convention on
the Rights of the Child of 20 November 1989 includes similar provisions in
Articles 16, 24, 27 and 28.

*

132. From the information submitted to the
Court, particularly the report of the Secretary-General, it appears that the
construction of the wall has led to the destruction or requisition of
properties under conditions which contravene the requirements of Articles 46
and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva
Convention.

133. That construction, the establishment of a
closed area between the Green Line and the wall itself and the creation of
enclaves have moreover imposed substantial restrictions on the freedom of
movement of the inhabitants of the Occupied Palestinian Territory (with the
exception of Israeli citizens and those assimilated thereto). Such restrictions
are most marked in urban areas, such as the Qalqiliya enclave or the City of
Jerusalem and its suburbs. They are aggravated by the fact that the access
gates are few in number in certain sectors and opening hours appear to be
restricted and unpredictably applied. For example, according to the Special
Rapporteur of the Commission on Human Rights on the situation of human rights
in the Palestinian territories occupied by Israel since 1967, “Qalqiliya, a
city with a population of 40,000, is completely surrounded by the Wall and
residents can only enter and leave through a single military checkpoint open
from 7 a.m. to 7 p.m.” (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, submitted in accordance with
Commission resolution 1993/2 A and entitled “Question of the Violation of Human
Rights in the Occupied Arab Territories, including Palestine”, E/CN.4/2004/6, 8
September 2003, para. 9.)

There have also been serious repercussions for
agricultural production, as is attested by a number of sources. According to
the Special Committee to Investigate Israeli Practices Affecting the Human
Rights of the Palestinian People and Other Arabs of the Occupied Territories

“an estimated 100,000 dunums [approximately
10,000 hectares] of the West Bank’s most fertile agricultural land, confiscated
by the Israeli Occupation Forces, have been destroyed during the first phase of
the wall construction, which involves the disappearance of vast amounts of
property, notably private agricultural land and olive trees, wells, citrus
grows and hothouses upon which tens of thousands of Palestinians rely for their
survival” (Report of the Special Committee to Investigate Israeli Practices
Affecting the Human Rights of the Palestinian People and Other Arabs of the
Occupied Territories, A/58/311, 22 August 2003, para. 26).

Further, the Special Rapporteur on the
situation of human rights in the Palestinian territories occupied by Israel
since 1967 states that “Much of the Palestinian land on the Israeli side of the
Wall consists of fertile agricultural land and some of the most important water
wells in the region” and adds that “Many fruit and olive trees had been destroyed
in the course of building the barrier.” (E/CN.4/2004/6, 8
September 2003, para. 9.) The Special Rapporteur on the Right to Food of
the United Nations Commission on Human Rights states that construction of the
wall “cuts off Palestinians from their agricultural lands, wells and means of
subsistence” (Report by the Special Rapporteur of the United Nations Commission
on

Human Rights, Jean Ziegler, “The
Right to Food”, Addendum, Mission to the Occupied Palestinian Territories,
E/CN.4/2004/10/Add.2, 31 October 2003, para. 49). In a recent
survey conducted by the World Food Programme, it is stated that the situation
has aggravated food insecurity in the region, which reportedly numbers 25,000
new beneficiaries of food aid (report of the Secretary-General, para. 25).

It has further led to increasing difficulties
for the population concerned regarding access to health services, educational
establishments and primary sources of water. This is also attested by a number
of different information sources. Thus the report of the Secretary-General
states generally that “According to the Palestinian Central Bureau of
Statistics, so far the Barrier has separated 30 localities from health
services, 22 from schools, 8 from primary water sources and 3 from electricity
networks.” (Report of the Secretary-General, para.
23.) The Special Rapporteur of the United Nations Commission on Human Rights on
the situation of human rights in the Palestinian territories occupied by Israel
since 1967 states that “Palestinians between the Wall and Green Line will
effectively be cut off from their land and workplaces, schools, health clinics
and other social services.” (E/CN.4/2004/6, 8 September 2003,
para. 9.) In relation specifically to water resources, the Special
Rapporteur on the Right to Food of the United Nations Commission on Human
Rights observes that “By constructing the fence Israel will also effectively
annex most of the western aquifer system (which provides 51 per cent of the
West Bank’s water resources).” (E/CN.4/2004/10/Add.2, 31
October 2003, para. 51.) Similarly, in regard to access to health
services, it has been stated that, as a result of the enclosure of Qalqiliya, a
United Nations hospital in that town has recorded a 40 per cent decrease in its
caseload (report of the Secretary-General, para. 24).

At Qalqiliya, according to reports furnished to
the United Nations, some 600 shops or businesses have shut down, and 6,000 to
8,000 people have already left the region (E/CN.4/2004/6, 8 September 2003,
para. 10; E/CN.4/2004/10/Add.2, 31 October 2003, para. 51). The Special
Rapporteur on the Right to Food of the United Nations Commission on Human
Rights has also observed that “With the fence/wall cutting communities off from
their land and water without other

means of subsistence, many of the Palestinians
living in these areas will be forced to leave.” (E/CN.4/2004/10/Add.2,
31 October 2003, para. 51.) In this respect also the construction of the
wall would effectively deprive a significant number of Palestinians of the
“freedom to choose [their] residence”. In addition, however, in the view of the
Court, since a significant number of Palestinians have already been compelled
by the construction of the wall and its associated régime to depart from
certain areas, a process that will continue as more of the wall is built, that
construction, coupled with the establishment of the Israeli settlements
mentioned in paragraph 120 above, is tending to alter the demographic
composition of the Occupied Palestinian Territory.

134. To sum up, the Court is of the opinion
that the construction of the wall and its associated régime impede the liberty
of movement of the inhabitants of the Occupied Palestinian Territory (with the
exception of Israeli citizens and those assimilated thereto) as guaranteed
under Article 12, paragraph 1, of the International Covenant on Civil and
Political Rights. They also impede the exercise by the persons concerned of the
right to work, to health, to education and to an adequate standard of living as
proclaimed in the International Covenant on Economic, Social and Cultural
Rights and in the United Nations Convention on the Rights of the Child. Lastly,
the construction of the wall and its associated régime, by contributing to the
demographic changes referred to in paragraphs 122 and 133 above,
contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the
Security Council resolutions cited in paragraph 120 above.

135. The Court would observe, however, that the
applicable international

humanitarian law contains provisions enabling
account to be taken of military exigencies in certain circumstances.

Neither Article 46 of the Hague Regulations of
1907 nor Article 47 of the Fourth Geneva Convention contain
any qualifying provision of this type. With regard to forcible transfers of
population and deportations, which are prohibited under Article 49, paragraph
1, of the Convention, paragraph 2 of that Article provides for an exception in
those cases in which “the security of the population or imperative military
reasons so demand”. This exception however does not apply to paragraph 6 of
that Article, which prohibits the occupying Power from deporting or
transferring parts of its own civilian population into the territories it
occupies. As to Article 53 concerning the destruction of personal property, it
provides for an exception “where such destruction is rendered absolutely
necessary by military operations”.

The Court considers that the military
exigencies contemplated by these texts may be invoked in occupied territories
even after the general close of the military operations that led to their
occupation. However, on the material before it, the Court is not convinced that
the destructions carried out contrary to the prohibition in Article 53 of the
Fourth Geneva Convention were rendered absolutely necessary by military
operations.

136. The Court would further observe that some
human rights conventions, and in particular the International Covenant on Civil
and Political Rights, contain provisions which States parties may invoke in
order to derogate, under various conditions, from certain of their conventional
obligations. In this respect, the Court would however recall that the
communication notified by

Israel to the Secretary-General of the United
Nations under Article 4 of the International Covenant on Civil and Political
Rights concerns only Article 9 of the Covenant, relating to the right to
freedom and security of person (see paragraph 127 above); Israel is accordingly
bound to respect all the other provisions of that instrument.

The Court would note, moreover, that certain
provisions of human rights conventions contain clauses qualifying the rights
covered by those provisions. There is no clause of this kind in Article 17 of
the International Covenant on Civil and Political Rights. On the other hand,
Article 12, paragraph 3, of that instrument provides that restrictions on
liberty of movement as guaranteed under that Article “shall not be subject to
any restrictions except those which are provided by law, are necessary to
protect national security, public order (ordre public), public health or morals
or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant”. As for the International Covenant on
Economic, Social and Cultural Rights, Article 4 thereof contains a general
provision as follows:

“The States Parties to the present Covenant
recognize that, in the enjoyment of those rights provided by the State in
conformity with the present Covenant, the State may subject such rights only to
such limitations as are determined by law only in so far as this may be
compatible with the nature of these rights and solely for the purpose of
promoting the general welfare in a democratic society.”

The Court would observe that the restrictions
provided for under Article 12, paragraph 3, of the International Covenant on
Civil and Political Rights are, by the very terms of that provision, exceptions
to the right of freedom of movement contained in paragraph 1. In addition, it
is not sufficient that such restrictions be directed to the ends authorized;
they must also be necessary for the attainment of those ends. As the Human
Rights Committee put it, they “must conform to the principle of
proportionality” and “must

be the least intrusive instrument amongst those
which might achieve the desired result” (CCPR/C/21/Rev.1/Add.9, General Comment
No. 27, para. 14). On the basis of the information available to it, the Court
finds that these conditions are not met in the present instance.

The Court would further observe that the
restrictions on the enjoyment by the Palestinians living in the territory
occupied by Israel of their economic, social and cultural rights, resulting
from Israel’s construction of the wall, fail to meet a condition laid down by
Article 4 of the International Covenant on Economic, Social and Cultural
Rights, that is to say that their implementation must be “solely for the
purpose of promoting the general welfare in a democratic society”.

137. To sum up, the Court, from the material
available to it, is not convinced that the specific course Israel has chosen
for the wall was necessary to attain its security objectives. The wall, along
the route chosen, and its associated régime gravely infringe a number of rights
of Palestinians residing in the territory occupied by Israel, and the infringements
resulting from that route cannot be justified by military exigencies or by the
requirements of national security or public order. The construction of such a
wall accordingly constitutes breaches by Israel of various
of its obligations under the applicable international humanitarian law and
human rights instruments.

*

138. The Court has thus concluded that the
construction of the wall constitutes action not in conformity with various
international legal obligations incumbent upon Israel. However, Annex I to the
report of the Secretary-General states that, according to Israel: “the
construction of the Barrier is consistent with Article 51 of the Charter of the
United Nations, its inherent right to self-defence and Security Council
resolutions 1368 (2001) and 1373 (2001)”. More specifically, Israel’s Permanent
Representative to the United Nations asserted in the General Assembly on 20
October 2003 that “the fence is a measure wholly consistent with the right of
States to self-defence enshrined in Article 51 of the Charter”; the Security
Council resolutions referred to, he continued, “have clearly recognized the
right of States to use force in self-defence against terrorist attacks”, and
therefore surely recognize the right to use non-forcible measures to that end
(A/ES-10/PV.21, p. 6).

139. Under the terms
of Article 51 of the Charter of the United Nations:

“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.”

Article 51 of the Charter thus recognizes the
existence of an inherent right of self-defence in the case of armed attack by
one State against another State. However, Israel does not claim that the
attacks against it are imputable to a foreign State.

The Court also notes that Israel exercises
control in the Occupied Palestinian Territory and that, as Israel itself
states, the threat which it regards as justifying the construction of the wall
originates within, and not outside, that territory. The situation is thus
different from that contemplated by Security Council resolutions 1368 (2001)
and 1373 (2001), and therefore Israel could not in any event invoke those
resolutions in support of its claim to be exercising a right of self-defence. Consequently,
the Court concludes that Article 51 of the Charter has no relevance in this
case.

140. The Court has, however, considered whether
Israel could rely on a state of necessity which would preclude the wrongfulness
of the construction of the wall. In this regard the Court is bound to note that
some of the conventions at issue in the present instance include qualifying
clauses of the rights guaranteed or provisions for derogation (see paragraphs
135 and 136 above). Since those treaties already address considerations of this
kind within their own provisions, it might be asked whether a state of
necessity as recognized in customary international law could be invoked with
regard to those treaties as a ground for precluding the wrongfulness of the
measures or decisions being challenged. However, the Court will not need to
consider that question. As the Court observed in the case concerning the
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), “the state of necessity is
a ground recognized by customary international law” that “can only be accepted
on an exceptional basis”; it “can only be invoked under certain strictly
defined conditions which must be cumulatively satisfied; and the State
concerned is not the sole judge of whether those conditions have been met”
(I.C.J. Reports 1997, p. 40, para. 51). One of those conditions

was stated by the Court in terms used by the
International Law Commission, in a text which in its present form requires that
the act being challenged be “the only way for the State to safeguard an
essential interest against a grave and imminent peril” (Article 25 of the
International Law Commission’s Articles on Responsibility of States for
Internationally Wrongful Acts; see also former Article 33 of the Draft Articles
on the International Responsibility of States, with slightly different wording
in the English text). 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.

141. The fact remains that Israel has to face
numerous indiscriminate and deadly acts of violence against its civilian
population. It has the right, and indeed the duty, to respond in order to
protect the life of its citizens. The measures taken are bound nonetheless to
remain in conformity with applicable international law.

142. In conclusion, the Court considers that
Israel cannot rely on a right of self-defence or on a state of necessity in
order to preclude the wrongfulness of the construction of the wall resulting
from the considerations mentioned in paragraphs 122 and 137 above. The Court
accordingly finds that the construction of the wall, and its associated régime,
are contrary to international law.

*

143. The Court having concluded that, by the
construction of the wall in the Occupied Palestinian Territory, including in
and around East Jerusalem, and by adopting its associated régime, Israel has
violated various international obligations incumbent upon it (see paragraphs
114-137 above), it must now, in order to reply to the question posed by the
General Assembly, examine the consequences of those violations.

144. In their written and oral observations,
many participants in the proceedings before the Court contended that Israel’s
action in illegally constructing this wall has legal consequences not only for
Israel itself, but also for other States and for the United Nations; in its
Written Statement, Israel, for its part, presented no arguments regarding the
possible legal consequences of the construction of the wall.

145. As regards the legal consequences for
Israel, it was contended that Israel has, first, a legal obligation to bring
the illegal situation to an end by ceasing forthwith the construction of the
wall in the Occupied Palestinian Territory, and to give appropriate assurances
and guarantees of non-repetition.

It was argued that, secondly, Israel is under a
legal obligation to make reparation for the damage arising from its unlawful
conduct. It was submitted that such reparation should first of all take the
form of restitution, namely demolition of those portions of the wall
constructed in the Occupied Palestinian Territory and annulment of the legal
acts associated with its construction and the restoration of property requisitioned
or expropriated for that purpose; reparation should also include appropriate
compensation for individuals whose homes or agricultural holdings have been
destroyed.

It was further contended that Israel is under a
continuing duty to comply with all of the international obligations violated by
it as a result of the construction of the wall in the Occupied Palestinian
Territory and of the associated régime. It was also argued that, under the
terms of the Fourth Geneva Convention, Israel is under an obligation to search
for and bring before its courts persons alleged to have committed, or to have
ordered to be committed, grave breaches of international humanitarian law
flowing from the planning, construction and use of the wall.

146. As regards the legal consequences for
States other than Israel, it was contended before the Court that all States are
under an obligation not to recognize the illegal situation arising from the
construction of the wall, not to render aid or assistance in maintaining that
situation and to co-operate with a view to putting an end to the alleged
violations and to ensuring that reparation will be made therefor.

Certain participants in the proceedings further
contended that the States parties to the Fourth Geneva Convention are obliged
to take measures to ensure compliance with the Convention and that, inasmuch as
the construction and maintenance of the wall in the Occupied Palestinian
Territory constitutes grave breaches of that Convention, the States parties to
that Convention are under an obligation to prosecute or extradite the authors
of such breaches. It was further observed that “the United Nations Security
Council should consider flagrant and systematic violation of international law
norm[s] and principles by Israel, particularly . . . international humanitarian
law, and take all necessary measures to put an end [to] these violations”, and
that the Security Council and the General Assembly must take due account of the
advisory opinion to be given by the Court.

147. Since the Court has concluded that the
construction of the wall in the Occupied Palestinian Territory, including in
and around East Jerusalem, and its associated régime, are contrary to various
of Israel’s international obligations, it follows that the responsibility of

that State is engaged under international law.

148. The Court will now examine the legal
consequences resulting from the violations of international law by Israel by
distinguishing between, on the one hand, those arising for Israel and, on the
other, those arising for other States and, where appropriate, for the United
Nations. The Court will begin by examining the legal consequences of those
violations for Israel.

*

149. The Court notes that Israel is first
obliged to comply with the international obligations it has breached by the
construction of the wall in the Occupied Palestinian Territory (see paragraphs
114-137 above). Consequently, Israel is bound to comply with its obligation to
respect the right of the Palestinian people to self-determination and its
obligations under international humanitarian law and international human rights
law. Furthermore, it must ensure freedom of access to the Holy Places that came
under its control following the 1967 War (see paragraph 129 above).

150. The Court observes that Israel also has an
obligation to put an end to the violation of its international obligations
flowing from the construction of the wall in the Occupied Palestinian
Territory. The obligation of a State responsible for an internationally
wrongful act to put an end to that act is well established in general
international law, and the Court has on a number of occasions confirmed the
existence of that obligation (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
I.C.J. Reports 1986, p. 149; United States Diplomatic and Consular Staff in
Tehran, Judgment, I.C.J. Reports 1980, p. 44, para. 95; Haya de la Torre, Judgment, I.C.J. Reports
1951, p. 82).

151. Israel accordingly has the obligation to
cease forthwith the works of construction of the wall being built by it in the
Occupied Palestinian Territory, including in and around East Jerusalem. Moreover,
in view of the Court’s finding (see paragraph 143 above) that Israel’s
violations of its international obligations stem from the construction of the
wall and from its associated régime, cessation of those violations entails in
practice the dismantling forthwith of those parts of that structure situated
within the Occupied Palestinian Territory, including in and around East
Jerusalem. All legislative and regulatory acts adopted with a view to its
construction, and to the establishment of its associated régime, must forthwith
be repealed or rendered ineffective, except in so far as such acts, by
providing for compensation or other forms of reparation for the Palestinian
population, may continue to be relevant for compliance by Israel with the
obligations referred to in paragraph 153 below.

152. Moreover, given that the construction of
the wall in the Occupied Palestinian Territory has, inter alia, entailed the
requisition and destruction of homes, businesses and agricultural holdings, the
Court finds further that Israel has the obligation to make reparation for the damage
caused to all the natural or legal persons concerned. The Court would recall
that the essential forms of reparation in customary law were laid down by the
Permanent Court of International Justice in the following terms:

“The essential principle contained in the
actual notion of an illegal act ~ a principle which seems to be established by
international practice and in particular by the decisions of arbitral tribunals
~ is that reparation must, as far as possible, wipe out all the consequences of
the illegal act and reestablish the situation which would, in all probability,
have existed if that act had not been committed. Restitution in kind, or, if
this is not possible, payment of a sum

corresponding to the value which a restitution
in kind would bear; the award, if need be, of damages for loss sustained which
would not be covered by restitution in kind or payment in place of it ~ such
are the principles which should serve to determine the amount of compensation
due for an act contrary to international law.” (Factory at Chorzów, Merits,
Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 47.)

153. Israel is accordingly under an obligation
to return the land, orchards, olive groves and other immovable property seized
from any natural or legal person for purposes of construction of the wall in
the Occupied Palestinian Territory. In the event that such restitution should
prove to be materially impossible, Israel has an obligation to compensate the
persons in question for the damage suffered. The Court considers that Israel
also has an obligation to compensate, in accordance with the applicable rules
of international law, all natural or legal persons having suffered any form of
material damage as a result of the wall’s construction.

*

154. The Court will now consider the legal
consequences of the internationally wrongful acts flowing from Israel’s
construction of the wall as regards other States.

155. The Court would observe that the
obligations violated by Israel include certain obligations erga omnes. As the
Court indicated in the Barcelona Traction case, such obligations are by their
very nature “the concern of all States” and, “In view of the importance of the
rights involved, all States can be held to have a legal interest in their
protection.” (Barcelona Traction, Light and Power Company, Limited, Second
Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.) The obligations erga
omnes violated by Israel are the obligation to respect the right of the
Palestinian people to self-determination, and certain of its obligations under
international humanitarian law.

156. As regards the first of these, the Court
has already observed (paragraph 88 above) that in the East Timor case, it
described as “irreproachable” the assertion that “the right of peoples to
self-determination, as it evolved from the Charter and from United Nations
practice, has an erga omnes character” (I.C.J. Reports 1995, p. 102, para. 29).
The Court would also recall that under the terms of General Assembly resolution
2625 (XXV), already mentioned above (see paragraph 88),

“Every State has the duty to promote, through
joint and separate action, realization of the principle of equal rights and
self-determination of peoples, in accordance with the provisions of the
Charter, and to render assistance to the United Nations in carrying out the
responsibilities entrusted to it by the Charter regarding the implementation of
the principle . . .”

157. With regard to international humanitarian
law, the Court recalls that in its Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons, it stated that “a great many rules of
humanitarian law applicable in armed conflict are so fundamental to the respect
of the human person and ‘elementary considerations of humanity’ . . .”, that
they are “to be observed by all States whether or not they have ratified the
conventions that contain them, because they constitute intransgressible
principles of international customary law” (I.C.J. Reports 1996 (I), p. 257,
para. 79). In the Court’s view, these rules incorporate obligations which are
essentially of an erga omnes character.

158. The Court would also emphasize that
Article 1 of the Fourth Geneva

Convention, a provision common to the four
Geneva Conventions, provides that “The High Contracting Parties undertake to
respect and to ensure respect for the present Convention in all circumstances.”
It follows from that provision that every State party to that Convention,
whether or not it is a party to a specific conflict, is under an obligation to
ensure that the requirements of the instruments in question are complied with.

159. Given the character and the importance of
the rights and obligations involved, the Court is of the view that all States
are under an obligation not to recognize the illegal situation resulting from
the construction of the wall in the Occupied Palestinian Territory, including
in and around East Jerusalem. They are also under an obligation not to render
aid or assistance in maintaining the situation created by such construction. It
is also for all States, while respecting the United Nations Charter and
international law, to see to it that any impediment, resulting from the construction
of the wall, to the exercise by the Palestinian people of its right to
self-determination is brought to an end. In addition, all the States parties to
the Geneva Convention relative to the Protection of Civilian Persons in Time of
War of 12 August 1949 are under an obligation, while respecting the United
Nations Charter and international law, to ensure compliance by Israel with
international humanitarian law as embodied in that Convention.

160. Finally, the Court is of the view that the
United Nations, and especially the General Assembly and the Security Council,
should consider what further action is required to bring to an end the illegal
situation resulting from the construction of the wall and the associated
régime, taking due account of the present Advisory Opinion.

*

161. The Court, being concerned to lend its
support to the purposes and principles laid down in the United Nations Charter,
in particular the maintenance of international peace and security and the
peaceful settlement of disputes, would emphasize the urgent necessity for the
United Nations as a whole to redouble its efforts to bring the
Israeli-Palestinian conflict, which continues to pose a threat to international
peace and security, to a speedy conclusion, thereby establishing a just and
lasting peace in the region.

162. The Court has reached the conclusion that
the construction of the wall by Israel in the Occupied Palestinian Territory is
contrary to international law and has stated the legal consequences that are to
be drawn from that illegality. The Court considers itself bound to add that
this construction must be placed in a more general context. Since 1947, the
year when General Assembly resolution 181 (II) was adopted and the Mandate for
Palestine was terminated, there has been a succession of armed conflicts, acts
of indiscriminate violence and repressive measures on the former mandated
territory. The Court would emphasize that both Israel and Palestine are under
an obligation scrupulously to observe the rules of international humanitarian
law, one of the paramount purposes of which is to protect civilian life. Illegal
actions and unilateral decisions have been taken on all sides, whereas, in the
Court’s view, this tragic situation can be brought to an end only through
implementation in good faith of all relevant Security Council resolutions, in
particular resolutions 242 (1967) and 338 (1973). The “Roadmap” approved by
Security Council resolution 1515 (2003) represents the most recent of efforts
to initiate negotiations to this end. The Court considers that it has a duty to
draw the attention of the General Assembly, to which the present Opinion is
addressed, to the need for these efforts to be encouraged with a view to
achieving as soon as possible, on the basis of international law, a negotiated
solution to the outstanding problems and the establishment of a Palestinian
State, existing side by side with Israel and its other neighbours, with peace
and security for all in the region.

163. For these
reasons,

THE COURT,

(1) Unanimously,

Finds that it has jurisdiction to give the
advisory opinion requested; (2) By fourteen votes to
one,

Decides to comply with the request for an
advisory opinion;

IN FAVOUR:
President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin,
Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada,
Simma, Tomka;

AGAINST: Judge Buergenthal;

(3) Replies in the following manner to the
question put by the General Assembly: A. By fourteen votes to one,

The construction of the wall being built by
Israel, the occupying Power, in the Occupied Palestinian Territory, including
in and around East Jerusalem, and its associated régime, are contrary to
international law;

IN FAVOUR: President Shi; Vice-President
Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka;

AGAINST: Judge Buergenthal; B. By fourteen
votes to one,

Israel is under an obligation to terminate its
breaches of international law; it is under an obligation to cease forthwith the
works of construction of the wall being built in the Occupied Palestinian
Territory, including in and around East Jerusalem, to dismantle forthwith the
structure therein situated, and to repeal or render ineffective forthwith all
legislative and regulatory acts relating thereto, in accordance with paragraph
151 of this Opinion;

IN FAVOUR: President Shi;
Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins,
Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka;

(Signed) SHI Jiuyong, President.

AGAINST: Judge Buergenthal; C. By fourteen
votes to one,

Israel is under an obligation to make
reparation for all damage caused by the construction of the wall in the
Occupied Palestinian Territory, including in and around East Jerusalem;

IN FAVOUR:
President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin,
Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada,
Simma, Tomka;

AGAINST: Judge Buergenthal; D. By thirteen
votes to two,

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 by Israel with
international humanitarian law as embodied in that Convention;

IN FAVOUR: President Shi; Vice-President
Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka;

AGAINST: Judges Kooijmans, Buergenthal; E. By fourteen
votes to one,

The United Nations, and especially the General
Assembly and the Security Council, should consider what further action is
required to bring to an end the illegal situation resulting from the
construction of the wall and the associated régime, taking due account of the
present Advisory Opinion.

IN FAVOUR: President Shi; Vice-President
Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka;

AGAINST: Judge Buergenthal.

Done in French and in English, the French text
being authoritative, at the Peace Palace, The Hague, this ninth day of July,
two thousand and four, in two copies, one of which will be placed in the
archives of the Court and the other transmitted to the Secretary-General of the
United Nations.

(Signed)
Philippe COUVREUR, Registrar.

Judges KOROMA, HIGGINS, KOOIJMANS and
AL-KHASAWNEH append separate opinions to the Advisory Opinion of the Court;
Judge BUERGENTHAL appends a declaration to the Advisory Opinion of the Court;
Judges ELARABY and OWADA append separate opinions to the Advisory Opinion of
the Court.

(Initialled) J.Y.S. (Initialled) Ph.C.