260

SEPARATE OPINION OF JUDGE OWADA

The issue of judicial propriety in exercising jurisdiction in advisory proceed-
ings is a factor to be examined by the Court proprio motu, if necessary — Rele-
vance of the existence of a bilateral dispute in the subject-matter of the request
as such is not to be a bar for the Court in exercising jurisdiction, but nonetheless
a factor to be considered in determining how the Court should deal with the sub-
ject-matter of the request without impinging upon the problem of regulating the
very dispute between the parties — The Court should have approached the issue
of exercising judicial propriety, not simply in relation to the question as to
whether it should comply with the request for an advisory opinion, but also in
relation to the question as to how it should exercise jurisdiction with a view to
ensuring fairness in the administration of justice in a case which clearly is
related to a bilateral dispute, including the issue of appointing a judge ad hoc —
Consideration of fairness in the administration of justice requires equitable
treatment of the positions of both sides involved in the subject-matter in terms of
the assessment both of facts and of law involved — Condemnation of the tragic
circle of indiscriminate mutual violence perpetrated by both sides against inno-
cent civilian population should be an important segment of the Opinion of the
Court.

1. I concur with the conclusions of the Opinion of the Court both on
the preliminary issues (jurisdiction and judicial propriety) and on most
of the points belonging to the merits of the substantive issues involved.
Nevertheless, not only have I some disagreements on certain specific
points in the Opinion, but I have some serious reservations about the
way the Court has proceeded in this case. While I acknowledge that
the way in which the Court has proceeded with the present case has to a
large extent been made inevitable under the somewhat extraordinary and
unique circumstances of the case that are not always attributable to
the responsibility of the Court, I feel it incumbent upon me to make
my position clear, by pointing to some of the problematic aspects of the
way in which the Court has proceeded in the present case.

2. The Court has reached its conclusions on the preliminary issues on
jurisdiction and on judicial propriety of exercising this jurisdiction pri-
marily on the basis of the statements put forward by the participants in
the course of its written and oral proceedings. The reasons for the Court
to arrive at these conclusions are set out in paragraphs 24-67. These, as
such, raise no major disagreement on my part. However, I believe that
the issue of jurisdiction and especially the issue of judicial propriety is a
matter that the Court should examine, proprio motu if necessary, in order
to ensure that it is not only right as a matter of law but also proper as a
matter of judicial policy for the Court as a judicial body to exercise juris-

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diction in the concrete context of the case. This means, at least to my
mind, that the Court would be required to engage in an in-depth scrutiny
of all aspects of the particular circumstances of the present case relevant
to the consideration of the case, if necessary going beyond what has been
argued by the participants. One of such aspects of the present case is the
implication of the existence of a bilateral dispute in the subject-matter of
the request for an advisory opinion.

3. The original Statute of the Permanent Court of International Jus-
tice contained no express provisions relating to advisory jurisdiction.
Only the Covenant of the League of Nations, in its Article 14, stipulated
that “[t]he Court may also give an advisory opinion upon any dispute or
question referred to it by the Council or by the Assembly”. It was this
provision that came to form the legal basis for the exercise of advisory
function by the Permanent Court of International Justice.

4. While the purport of this provision according to the intention of the
founding fathers of the League does not appear to have been entirely
clear nor unified, one of the points that clearly emerge from the legisla-
tive history of the Covenant is that the purpose of the advisory function
of the Permanent Court consisted from the beginning in aiding the
League in the peaceful settlement of a concrete dispute before the Coun-
cil of the League, in particular in the context of the procedures provided
for in Articles 12 to 16 of the Covenant!.

5. When the Rules of Court were drafted in 1922 following the estab-
lishment of the Permanent Court, four articles (71-74) were consecrated
to advisory procedure. They affirmed the “judicial character” of the advi-
sory function of the new Court and paved the way for the later fuller
assimilation of advisory to contentious procedure ?. Indeed, the Report of
the Committee [of the Permanent Court of International Justice],
appointed on 2 September 1927, stated as follows:

“The Statute does not mention advisory opinions, but leaves to
the Court the entire regulation of its procedure in the matter. The
Court, in the exercise of this power, deliberately and advisedly
assimilated its advisory procedure to its contentious procedure; and
the results have abundantly justified its action. Such prestige as the
Court to-day enjoys as a judicial tribunal is largely due to the
amount of its advisory business and the judicial way in which it has
dealt with such business. In reality, where there are . . . contending
parties, the difference between contentious cases and advisory cases
is only nominal. The main difference is the way in which the case
comes before the Court, and even this difference may virtually dis-

! See, in particular, Michla Pomerance, The Advisory Function of the International
Court in the League and U.N. Eras, 1973, p. 9.
2 Ibid, p. 14.

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appear, as it did in the Tunisian case. So the view that advisory
opinions are not binding is more theoretical than real.” (P.CL/S,
Series E, No. 4, p. 76.)

6. In fact, when the Permanent Court declined to exercise jurisdiction
to give a requested advisory opinion in the Status of Eastern Carelia case
(P.C.LJ., Series B, No. 5), the main rationale of this decision lay pre-
cisely on this point. The specific issue referred to the Court was whether

“Articles 10 and 11 of the Treaty of Peace between Finland and Rus-
sia [of 1920] and the annexed Declaration of the Russian Delegation
regarding the autonomy of Eastern Carelia, constitute engagements
of an international character which place Russia under an obligation
to Finland as to the carrying out of the provisions contained therein”
(ibid., p. 6).

In other words, it arose in the context of a dispute between Finland and
Russia involving this issue — a matter which Finland asked the League
of Nations to take up. The Council in its resolution expressed its “will-
ing[ness] to consider the question with a view to arriving at a satisfactory
solution if the two parties concerned agree” (ibid., p. 23). It was, how-
ever, due to the circumstances where the Russian Government declined
the request from the Estonian Government for it to “consent to submit
the question to the Council in conformity with Article 17 of the Cov-
enant” (ibid., p. 24) and where the Finnish Government again brought
the matter before the Council, that the Council decided to request the
advisory opinion in question.

7. Against this background, the Permanent Court stated as follows to
clarify its position:

“There has been some discussion as to whether questions for an
advisory opinion, if they relate to matters which form the subject of
a pending dispute between nations, should be put to the Court with-
out the consent of the parties. It is unnecessary in the present case to
deal with this topic.” (P.C.I.J., Series B, No. 5, p. 27; emphasis
added.)

After making this point clear, the Permanent Court continued as fol-
lows:

“It follows from the above that the opinion which the Court has
been requested to give bears on an actual dispute between Finland
and Russia. As Russia is not Member of the League of Nations, the
case is one under Article 17 of the Covenant .. . the Members of the
League . . . having accepted the Covenant, are under the obligation
resulting from the provisions of this part dealing with the pacific

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settlement of international disputes. As concerns States not members
of the League, the situation is quite different; they are not bound by
the Covenant. The submission, therefore, of a dispute between them
and a Member of the League for solution according to the methods
provided for in the Covenant, could take place only by virtue of their
consent. Such consent, however, has never been given by Russia.”
(P.C.LJ., Series B, No. 5, pp. 27-28; emphasis added.}*.

It is clear from this passage that the main rationale of the Permanent
Court in declining the exercise of jurisdiction in the Eastern Carelia case
was not the existence of a dispute relating to the subject-matter of the
request between the parties, but rather the fact that one of the parties
to the dispute did not give its consent to a “solution according to the
methods provided for in the Covenant”.

8. When the International Court of Justice was reconstituted as the
institutional successor to the Permanent Court of International Justice,
and incorporated into the United Nations system as its principal judicial
organ, no drastic change was introduced in the new Statute of the Inter-
national Court of Justice relating to its functions or to its constitution in
this respect. Since then, the advisory function of the Court, as the secondary
but important function of the Court, has been exercised by the Court in
line with the course laid down by its predecessor, the Permanent Court of
International Justice, in the days of the League as described above.

9. Given this background, and in light of the case law accumulated in
the course of years since the establishment of the International Court of
Justice on the questions of jurisdiction of the Court in advisory proceed-
ings and of propriety of its exercise, it is my view that the Court is right
in its conclusion in the present case that the existence of a dispute on a
bilateral basis should not be a bar to the Court in giving the advisory
Opinion requested.

10. While the existence of a bilateral dispute thus should not exclude
the Court from exercising jurisdiction in advisory proceedings as a matter
of judicial propriety, however, it is my view that the existence of a bilat-
eral dispute should be a factor to be taken into account by the Court in
determining the extent to which, and the manner in which, the Court
should exercise jurisdiction in such advisory proceedings. In this respect,
I am of the view that the Court has drawn too facile an analogy between
the present case and the past cases of advisory opinion and especially the

3 Article 17 of the Covenant provides:

“In the event of a dispute between a Member of the League and a State which is
not a Member of the League, or between States not Members of the League, the
State or States not Members of the League shall be invited to accept the obligations
of membership in the League for the purposes of such dispute, upon such conditions
as the Council may deem just. If such invitation is accepted, the provisions of
Articles 12 to 16 inclusive shall be applied with such modifications as may be
deemed necessary by the Council.”

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case concerning Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) notwithstanding Secu-
rity Council Resolution 276 (1970), Advisory Opinion. Given the intrica-
cies of the present case, I submit that this approach of applying the
principles drawn from the past precedents automatically to the present
situation is not quite warranted.

11. Especially in the Namibia case, the point in issue that formed the
basis for the request for an advisory opinion was the “legal
consequences . . . of the continued presence of South Africa in Namibia. . .
notwithstanding Security Council resolution 276 (1970)”. In spite of the
similarity in language in the formulation of the request, the basis for this
request was very different from the present one. In the Namibia case, the
Court was asked to give an opinion on the legal significance of the action
taken by the United Nations in terminating the South African Mandate
over South West Africa and its legal impact upon the status of South
Africa in that territory. If there was a legal controversy or a dispute, it
was precisely the one between the United Nations and the State con-
cerned. By contrast, what is in issue in the present situation centres on a
situation created by the action of Israel vis-a-vis Palestine in relation to
the Occupied Palestinian Territory. It is undeniable that there is in this
case an underlying legal controversy or a dispute between the parties
directly involved in this situation, while at the same time, as the Court
correctly points out, it concerns a matter between the United Nations
and Israel since the legal interest of the United Nations is legitimately
involved.

12. This of course is not to say that the Court should decline for this
reason the exercise of jurisdiction in the present case. It does mean, how-
ever, that the question of judicial propriety should be examined taking
into account this reality, and on the basis of the jurisprudence in more
pertinent cases. I believe the closest to the present case probably is the
Western Sahara, Advisory Opinion, case, in the sense that there was in
that case clearly an underlying legal controversy or a dispute between the
parties involved. However, even that case does not offer a completely
analogous precedent, from which the Court can draw its conclusion. In
the Western Sahara case, the Court stated:

“The object of the General Assembly has not been to bring before
the Court, by way of a request for advisory opinion, a dispute or
legal controversy, in order that it may later, on the basis of the
Court’s opinion, exercise its powers and functions for the peaceful
settlement of that dispute or controversy. The object of the request
is an entirely different one: to obtain from the Court an opinion
which the General Assembly deems of assistance to it for the proper
exercise of its functions concerning the decolonization of the terri-

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tory.” (Advisory Opinion, I.C.J. Reports 1975, pp. 26-27, para. 39;
emphasis added.)

In the present case, the presumed objective of the General Assembly in
requesting an advisory opinion would not seem to be the latter so much
as the former in the two examples given in this passage.

13. Thus, acknowledging the fact that in the present case there is this
undeniable aspect of an underlying legal controversy or a dispute between
the parties involved, and keeping this aspect clearly in mind, I wish to
state that the critical test for judicial propriety in exercising jurisdiction
of the Court, which it undoubtedly has, should lie, not in whether the
request is related to a concrete legal controversy or dispute in existence,
but in whether “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, Advisory Opin-
ion, LC.J. Reports 1975, p. 25, para. 33; emphasis added). To put it dif-
ferently, the critical criterion for judicial propriety in the final analysis
should lie in the Court seeing to it that giving a reply in the form of an
advisory opinion on the subject-matter of the request should not be tan-
tamount to adjudicating on the very subject-matter of the underlying
concrete bilateral dispute that currently undoubtedly exists between Israel
and Palestine.

14. The reasoning that I have offered above leads me to the following
two conclusions. First, the fact that the present case contains an aspect
of addressing a bilateral dispute should not prevent the Court from exer-
cising its competence. Second, however, this fact should have certain
important bearing on the whole proceedings that the Court is to conduct
in the present case, in the sense that the Court in the present advisory pro-
ceedings should focus its task on offering its objective findings of law
to the extent necessary and useful to the requesting organ, the General
Assembly, in carrying out its functions relating to this question, rather
than adjudicating on the subject-matter of the dispute between the
parties concerned.

15. It should be recalled that, even when deciding to exercise its advi-
sory function, this Court has consistently maintained the position that it
should remain faithful to “the requirements of its judicial character”.
Thus in the Western Sahara case the Court declared:

“Article 65, paragraph 1, of the Statute, which establishes the
power of the Court to give an advisory opinion, is permissive and,
under it, that power is of a discretionary character. In exercising this
discretion, the International Court of Justice, like the Permanent
Court of International Justice, has always been guided by the
principle that, as a judicial body, it is bound to remain faithful to
the requirements of its Judicial character even in giving advisory
opinions.” (Advisory Opinion, I.C.J. Reports 1975, p. 21, para. 23;
emphasis added.)

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16. One of such requirements for the Court as a judicial body is the
maintenance of fairness in its administration of justice in the advisory
procedure in the midst of divergent positions and interests among the
interested parties. To put it differently, it must be underlined that the
Court’s discretion in advisory matters is not limited to the question of
whether to comply with a request. It also embraces questions of advisory
procedure* This requirement acquires a special importance in the present
case, as we accept the undeniable fact as developed above that the present
case does relate to an underlying concrete legal controversy or a dispute,
despite my own conclusion that it is proper for the Court to exercise its
jurisdiction in the present case.

17. Article 68 of the Statute of the Court prescribes that “[i]n the exer-
cise of its advisory functions the Court shall further be guided by the pro-
visions of the present Statute which apply in contentious cases to the
extent to which it recognizes them to be applicable”. The Rules of Court
in Part IV (Arts. 102-109) elaborates this provision of the Statute.
Particularly relevant in this context is Article 102, paragraph 3 of which
provides that

“When an advisory opinion is requested upon a legal question
actually pending between two or more States, Article 31 of the
Statute shall apply, as also the provision of these Rules concerning
the application of that Article.”

18. In the Namibia case, South Africa made an application for the
appointment of a judge ad hoc to sit in the proceedings in accordance
with this provision. Although the Court in its Order of 29 January 1971
decided to reject this application (Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), I C.J. Reports
1971, p. 12), it was met with well-argued dissenting views on this point
(ibid., p. 308; p. 324). By contrast, in the Western Sahara case the Court
took a different position. In response to a request by Morocco for the
appointment of a judge ad hoc in accordance with Article 89 (1.e., present
Article 102) of the Rules of Court, the Court found that Morocco was
entitled to choose a judge ad hoc in the proceedings (a similar request by
Mauritania on the other hand was rejected) (Z C.J. Reports 1975, p. 6).

19. The procedure for the appointment of a judge ad hoc is set in
motion by the application of a State which claims that “the request for
the advisory opinion relates to a legal question actually pending between
two or more States” (Rules of Court, Art. 102). It is my view that in light
of the precedents noted above, Israel in its special position in the present
case would have been justified in making an application to choose a judge

4 Michla Pomerance, op. cit., p. 281.

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ad hoc. For whatever reason, Israel did not choose this course of action.
If it had done so, the task of the Court in maintaining the essential
requirement for fairness in the administration of justice would have been
greatly enhanced. It goes without saying that such a course of action
would have complicated the situation, due to the fact that the other party
to this dispute, Palestine, is an entity which is not recognized as a State
for the purpose of the Statute of the Court. What would happen then if
one of the parties directly interested is in a position of appointing a judge
ad hoc, while the other is not. Fairness in the administration of justice
could be questioned from this angle. While I do not propose to offer my
own conclusion to this intractable but hypothetical problem, what I wish
to point out is that this factor is one of the important aspects of the
present case that could have been considered by the Court in deciding on
the question of judicial propriety of whether, and if so how far, the Court
should exercise its jurisdiction in the unique circumstances of this case.

20. Be that as it may, it is established that even in contentious pro-
ceedings the absence of one of the parties in itself does not deprive the
Court of its jurisdiction to proceed (Statute of the Court, Art. 53), but
that the Court has to maintain its fairness in the administration of justice
as a court of justice. Thus, in relation to the question of the law to be
proved and applied, the Court stated in the cases concerning Fisheries
Jurisdiction as follows:

“The Court . . ., as an international judicial organ, is deemed to
take judicial notice of international law and is therefore required in
a case falling under Article 53 of the Statute, as in any other case, to
consider on its own initiative all rules of international law which
may be relevant to the settlement of the dispute. It being the duty of
the Court itself to ascertain and apply the relevant law in the given
circumstances of the case, the burden of establishing or proving rules
of international law cannot be imposed upon any of the Parties, for
the law lies within the judicial knowledge of the Court.” (Merits,
Judgment, I.C.J. Reports 1974, p. 181, para. 18.)

In relation to the question of the facts to be clarified, the Court in the
case concerning Military and Paramilitary Activities in and against Nica-
ragua (Nicaragua v. United States of America) stated that:

“in principle [it] is not bound to confine its consideration to the
material formally submitted to it by the parties (cf. Brazilian Loans,
P.CLJ., Series A, No. 20/21, p. 124; Nuclear Tests, LC.J. Reports
1974, pp. 263-264, paras. 31, 32)” (Merits, Judgment, I.C.J. Reports
1986, p. 25, para. 30).

It went on to state as follows:
“The Court has thus to strike a balance. On the one hand, it is
valuable for the Court to know the views of both parties in whatever

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form those views may have been expressed. Further, as the Court
noted in 1974, where one party is not appearing ‘it is especially
incumbent upon the Court to satisfy itself that it is in possession of
all the available facts’ (Nuclear Tests, LC.J. Reports 1974, p. 263,
para. 31; p. 468, para. 32.). On the other hand, the Court has to
emphasize that the equality of the parties to the dispute must remain
the basic principle for the Court.” (CJ. Reports 1986, pp. 25-26,
para. 31.)

21. This principle governing the basic position of the Court should be
applicable to advisory proceedings as it is applicable to contentious pro-
ceedings. Indeed, it may even be arguable that this principle is applicable
a fortiori to advisory proceedings, in the sense that in advisory proceed-
ings as distinct from contentious proceedings it cannot be said, at any
rate in the legal sense, that “[t]he absent party . . . forfeits the opportunity
to counter the factual allegations of its opponent” (Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, 1 C.J. Reports 1986, p. 25, para. 30). In
advisory proceedings no State, however interested a party it may be, is
under the obligation to appear before the Court to present its case.

22. On this point of facts and information relating to the present case,
it is undoubtedly true, as the present Opinion states, that

“the Court has at its disposal the report of the Secretary-General, as
well as a voluminous dossier submitted by him to the Court, com-
prising not only detailed information on the route of the wall
but also on its humanitarian and socio-economic impact on the
Palestinian population” (Advisory Opinion, para. 57).

Indeed, there is ample material, in particular, about the humanitarian
and socio-economic impacts of the construction of the wall. Their authen-
ticity and reliability are not in doubt. What seems to be wanting, how-
ever, is the material explaining the Israeli side of the picture, especially in
the context of why and how the construction of the wall as it is actually
planned and implemented is necessary and appropriate.

23. This, to my mind, would seem to be the case, in spite of the
Court’s assertion that

“Israel’s Written Statement, although limited to issues of jurisdiction
and propriety, contained observations on other matters, including
Israel’s concerns in terms of security, and was accompanied by cor-
responding annexes” (Advisory Opinion, para. 57).

In fact my point would seem to be corroborated by what the present
Opinion itself acknowledges in relation to the argument of Israel on this
issue. Israel has argued that the wall’s sole purpose is to enable it effec-

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tively to combat terrorist attacks launched from the West Bank, or as the
report of the Secretary-General puts it, “to halt infiltration into Israel
from the central and northern West Bank” (Advisory Opinion, para. 80).
However, the Court, in paragraph 137 of the Opinion, simply states that
“from the material available to it, [it] is not convinced that the specific
course Israel has chosen for the wall was necessary to attain its security
objectives” {emphasis added). It seems clear to me that here the Court is
in effect admitting the fact that elaborate material on this point from the
Israeli side is not available, rather than engaging in a rebuttal of the argu-
ments of Israel on the basis of the material that might have been made
available by Israel on this point. Again in paragraph 140 of the Opinion,
the Court bases itself simply on “the material before it” to express its lack
of conviction 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”.

24. In raising this point, it is not my purpose to dispute the factual
accuracy of these assertions, or to question the conclusions arrived at on
the basis of the documents and the material available to the Court. In
fact it would seem reasonable to conclude on balance that the political,
social, economic and humanitarian impacts of the construction of the
wall, as substantiated by ample evidence supplied and documented in the
course of the present proceedings, is such that the construction of the
wall would constitute a violation of international obligations under vari-
ous international instruments to which Israel 1s a party. Furthermore,
these impacts are so overwhelming that I am ready to accept that no jus-
tification based on the “military exigencies”, even if fortified by substan-
tiated facts, could conceivably constitute a valid basis for precluding the
wrongfulness of the act on the basis of the stringent conditions of pro-
portionality.

25. However, that is not the point. What is crucial is that the above
samples of quotations from the present Opinion testify to my point that
the Court, once deciding to exercise jurisdiction in this case, should be
extremely careful not only in ensuring the objective fairness in the result,
but in seeing to it that the Court is seen to maintain fairness throughout
the proceedings, whatever the final conclusion that we come to may be in
the end.

26. The question put to the Court for its advisory opinion is the spe-
cific question of “the legal consequences arising from the construction of
the wall being built by Israel” (General Assembly resolution A/ES-10/
L.16). It concerns only that specific act of Israel. Needless to say, how-
ever, the Israeli construction of the wall has not come about in a vacuum;
it is a part, albeit an extremely important part, of the whole picture of the
situation surrounding the peace in the Middle East with its long history.

27. Naturally, this does not alter the fact that the request for an advi-
sory opinion is focused on a specific question and that the Court should
treat this question, and this question only, without expanding the scope

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of its enquiry into the bigger question relating to the peace in the Middle
East, including issues relating to the “permanent status” of the territories
involved. Nevertheless, from the viewpoint of getting to an objective
truth concerning the specific question of the construction of the wall in its
complete picture and of ensuring fairness in the administration of justice
in this case which involves the element of a dispute between parties
directly involved, it seems of cardinal importance that the Court examine
this specific question assigned to the Court, keeping in balance the overall
picture which has formed the entire background of the construction of
the wall.

28. It has always been an undisputed premise of the peace in the
Middle East that the twin principles of “[wlithdrawal of Israel armed
forces from territories occupied in the [1967] conflict” and

“[tlermination of ali 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”

have to form the basis of the peace. Security Council resolution 242 (1967)
has consecrated these principles in so many words. The “Roadmap”,
endorsed by Security Council resolution 1515 (2003), is a blueprint for
proceeding on the basis of these principles.

29. If the Court found that the construction of the wall would go
counter to this principle by impeding and prejudicing the realization of
the principles, especially in the context of the customary rule of “the
inadmissibility of the acquisition of territory by war” (Advisory Opinion,
para. 117), it should state this. At the same time, the Court should
remind the General Assembly that this was a principle couched in the
context of the twin set of principles, both of which would have to be
realized, at any rate in the context of a peace in the Middle East, side by
side with each other.

30. As observed above, Israel has argued that the wall’s sole purpose is
to enable it effectively to combat terrorist attacks launched from the
West Bank. In response to this, the Court has confined itself to stating
that

“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.” (Advisory
Opinion, para. 140.)

It is certainly understood that the material available has not included an
elaboration on this point, and that in the absence of such material the
Court has found no other way for responding to this situation. [t may

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also be accepted that this argument of Israel, even if acknowledged as
true as far as the Israeli motives were concerned, would not be a sufficient
ground for justifying the construction of the wall as it has actually been
drawn up and implemented. As the Court has demonstrated with a high
degree of persuasiveness, the construction of the wall would still consti-
tute a breach of Israel’s obligations, inter alia, under the Hague Regula-
tions Respecting the Laws and Customs of War on Land and the Fourth
Geneva Convention relative to the Protection of Civilian Persons in Time
of War, unless cogent justifications are advanced for precluding the
wrongfulness of this act. But the important point is that an in-depth
effort could have been made by the Court, proprio motu, to ascertain the
validity of this argument on the basis of facts and law, and to present an
objective picture surrounding the construction of the wall in its entirety,
on the basis of which to assess the merits of the contention of Israel.

31. It is to my mind important in this context that the issue of mutual
resort to indiscriminate violence against civilian population should be
looked at. Without going into the question of what is the causal relation-
ship between the tragic acts of mutual violence resorted to by each of the
parties and the question of whether the so-called terrorist attacks by
Palestinian suicide bombers against the Israeli civilian population should
be blamed as constituting a good enough ground for justifying the con-
struction of the wall, I believe it is beyond dispute that this tragic circle
of indiscriminate violence perpetrated by both sides against innocent civil-
ian population of each other is to be condemned and rejected as totally
unacceptable. While it is true that this is not an issue expressly referred to
as part of the specific question put to the Court, I believe it should only
be natural that this factor be underlined as an important segment of the
Opinion of the Court in dealing with the issue of the construction of the
wall. This point to my mind is of particular relevance from the viewpoint
that the Court should approach the subject-matter in a balanced way.

(Signed) Hisashi OWADA.

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