COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

CONSEQUENCES JURIDIQUES
DE L’EDIFICATION D'UN MUR
DANS LE TERRITOIRE PALESTINIEN OCCUPE

AVIS CONSULTATIF DU 9 JUILLET 2004

2004

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

LEGAL CONSEQUENCES
OF THE CONSTRUCTION OF A WALL
IN THE OCCUPIED PALESTINIAN TERRITORY

ADVISORY OPINION OF 9 JULY 2004
Mode officiel de citation:

Conséquences juridiques de l'édification d'un mur
dans le territoire palestinien occupé,
avis consultatif, CI.J. Recueil 2004, p. 136

Official citation:

Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory,
Advisory Opinion, I C.J. Reports 2004, p. 136

N° de vente:
ISSN 0074-4441 Sales number 883
ISBN 92-1-070993-4

9 JUILLET 2004

AVIS CONSULTATIF

CONSEQUENCES JURIDIQUES
DE L’EDIFICATION D'UN MUR
DANS LE TERRITOIRE PALESTINIEN OCCUPE

LEGAL CONSEQUENCES
OF THE CONSTRUCTION OF A WALL
IN THE OCCUPIED PALESTINIAN TERRITORY

9 JULY 2004

ADVISORY OPINION
136

INTERNATIONAL COURT OF JUSTICE

YEAR 2004

9 July 2004

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 — Activi-
ties 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 prac-
tice concerning the interpretation of Article 12, paragraph 1, of Charter -— Gen-
eral 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.

x ox

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

Article 65, paragraph |, 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

4

2004
9 July
General List
No. 131
CONSTRUCTION OF A WALL (ADVISORY OPINION) 137

of opinion — Nullus commodum capere potest de sua injuria propria — Opin-
ion 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 Palestin-
ian Territory, including in and around East Jerusalem — Scope of question
posed — Request for opinion limited to the legal consequences of the construc-
tion 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) — Ille-
gality 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 — Interna-
tional 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 Ter-
ritory.

* *

Settlements established by Israel in breach of international law in the Occu-
pied 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 prop-
erties — 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 exigen-
cies — Clauses in human rights instruments qualifying rights guaranteed or pro-
viding 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

5
CONSTRUCTION OF A WALL (ADVISORY OPINION) 138

the applicable provisions of international humanitarian law and human rights
instruments.

Self-defence — Article 51 of the Charter — Attacks against Israel not imput-
able 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 — Con-
struction 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 interna-
tional law.

* *

Legal consequences of the violation by Israel of its obligations.

Israel’s international responsibility — Israel obliged to comply with the inter-
national obligations it has breached by the construction of the wall — Israel
obliged to put an end to the violation of its international obligations — Obliga-
tion to cease forthwith the works of construction of the wall, to dismantle it
forthwith and to repeal or render ineffective forthwith the legislative and regu-
latory 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 recog-
nize the illegal situation resulting from construction of the wall and not to
render aid or assistance in maintaining the situation created by such construc-
tion — 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 com-
pliance by Israel with international humanitarian law as embodied in that Con-
vention -- 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 — Obliga-
tion 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.
CONSTRUCTION OF A WALL (ADVISORY OPINION) 139

ADVISORY OPINION

Present: President Sui; Vice-President RANJEVA; Judges GUILLAUME, KOROMA,
VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOoUMANS, 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 origi-
nal 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 inadmis-
sibility 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 resolu-
tion 181 (11) 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 reso-
lutions 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,
CONSTRUCTION OF A WALL (ADVISORY OPINION) 140

Reaffirming the applicability of the Fourth Geneva Convention! as well
as Additional Protocol I to the Geneva Conventions’? 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 1907,

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 demo-
graphic 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 construc-
tion 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 disrup-
tion 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 pro-
jected 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 sec-
tion regarding the wall,

! United Nations, Treaty Series, Vol. 75, No. 973.

2 Jbid, Vol. 1125, No. 17512.

3 See Carnegie Endowment for International Peace, The Hague Conventions and
Declarations of 1899 and 1907 (New York, Oxford University Press, 1915).

4 E/CN.4/2004/6.
CONSTRUCTION OF A WALL (ADVISORY OPINION) 141

Affirming the necessity of ending the conflict on the basis of the two-
State solution of [srael and Palestine living side by side in peace and secu-
rity 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-10/13°,

Bearing in mind that the passage of time further compounds the diffi-
culties 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 Pales-
tinian 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?

> A/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 notified the request for
an advisory opinion to all States entitled to appear before the Court, in accord-
ance with Article 66, paragraph 1, of the Statute.

3. By a letter dated 11 December 2003, the Government 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, para-
graph 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 fixed
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

9
CONSTRUCTION OF A WALL (ADVISORY OPINION) 142

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 submit-
ted 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 Pales-
tine, 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 Decem-
ber 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 accord-
ance 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 state-
ments 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 Gov-
ernment 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, para-
graph 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 state-
ments 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, Nor-
way, 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, Feder-
ated 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 written statements accessible to the public, with effect from the opening of
the oral proceedings.

10
CONSTRUCTION OF A WALL (ADVISORY OPINION) 143

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

for Palestine:

for the Republic
of South Africa:

for the People's
Democratic Re-

public of Algeria:

for the Kingdom
of Saudi Arabia:

for the People’s
Republic of
Bangladesh:

for Belize:

for the Republic of
Cuba:

for the Republic of
Indonesia:

for the Hashemite
Kingdom of
Jordan:

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

Ms Stephanie Koury, Member, Negotiations Sup-
port Unit, Counsel,

Mr. James Crawford, S.C., Whewell Professor of
International Law, University of Cambridge, Mem-
ber 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 Interna-
tional Law, University of Oxford, Counsel and Advo-
cate,

Mr. Jean Salmon, Professor Emeritus of Interna-
tional 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,

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

Mr. Ahmed Laraba, Professor of International
Law;
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 King-
dom of the Netherlands;

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

HE. Mr. Abelardo Moreno Fernandez,
Minister for Foreign Affairs;

H.E. Mr. Mohammad Jusuf, Ambassador of the
Republic of Indonesia to the Kingdom of the
Netherlands, Head of Delegation;

H.R.H. Ambassador Zeid Ra’ad Zeid Al-Hussein,
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

11

Deputy
CONSTRUCTION OF A WALL (ADVISORY OPINION) 144

Adviser to the Government of the Hashemite King-
dom of Jordan;
for the Republic of | H.E. Mr. Alfred Rambeloson, Permanent Repre-
Madagascar: sentative of Madagascar to the Office of the United
Nations at Geneva and to the Specialized Agencies,
Head of Delegation;
for Malaysia: H.E. Datuk Seri Syed Hamid Albar, Foreign Min-
ister of Malaysia, Head of Delegation;
for the Republic of | H.E. Mr. Saliou Cissé, Ambassador of the Repub-
Senegal: lic of Senegal to the Kingdom of the Netherlands,
Head of Delegation;
for the Republic of | H.E. Mr. Abuelgasim A. Idris, Ambassador of the
the Sudan: Republic of the Sudan to the Kingdom of the
Netherlands;
for the League of Mr. Michael Bothe, Professor of Law, Head of the
Arab States: Legal Team;

for the Organiza- H.E. Mr. Abdelouahed Belkeziz, Secretary General
tion of the Islamic of the Organization of the Islamic Conference,
Conference: Ms Monique Chemillier-Gendreau, Professor of
Public Law, University of Paris VII-Denis Diderot,
as Counsel.
* * *

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 Assem-
bly 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 advi-
sory 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 Opin-
ion, L C.J. Reports 1982, pp. 333-334, para. 21.)

12

CONSTRUCTION OF A WALL (ADVISORY OPINION) 145

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 rela-
tionship between the question the subject of a request for an advisory
opinion and the activities of the General Assembly Unterpretation of
Peace Treaties with Bulgaria, Hungary and Romania, 1 C.J. Reports
1950, p. 70; Legality of the Threat or Use of Nuclear Weapons, I.CJ.
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 con-
ditions 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 Terri-
tory (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

13
CONSTRUCTION OF A WALL (ADVISORY OPINION) 146

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 Spe-
cial 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 interna-
tional 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 con-
struction 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 Febru-
ary 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, $/2003/973, 9 October 2003). This letter was accom-
panied by a draft resolution for consideration by the Council, which con-
demned 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 Coun-
cil (S/PV.4841 and S/PV.4842).

On 15 October 2003, the Chairman of the Arab Group, on behalf of
14
CONSTRUCTION OF A WALL (ADVISORY OPINION) 147

the States Members of the League of Arab States, requested the resump-
tion 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 pur-
suant 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 Perfor-
mance-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

“Callfed] on the parties to fulfil their obligations under the Road-
map 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, follow-
ing 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 resolu-
tion ES-10/13 (letter dated | December 2003 to the President of the Gen-
eral Assembly from the Chargé d’affaires a.i. of the Permanent Mission

15
CONSTRUCTION OF A WALL (ADVISORY OPINION) 148

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 request-
ing the present advisory opinion was adopted.

*

24. Having thus recalled the sequence of events that led to the adop-
tion 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 Gen-
eral 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 com-
pliance if for example it issues an order or command . . . under Chap-
ter 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, LC.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 (ibid. ).

“[The only limitation which Article 14 imposes on the General

16
CONSTRUCTION OF A WALL {ADVISORY OPINION) 149

Assembly is the restriction found in Article 12, namely, that the
Assembly should not recommend measures while the Security Coun-
cil is dealing with the same matter unless the Council requests it to
do so.” {1 CJ. Reports 1962, p. 163.)

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 recommenda-
tion 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 meas-
ures 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 Assem-
bly 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 inci-
dents 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, SIPV.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 recom-
mendations in the matter of the Congo (resolutions 1955 (XV) and
1600 (XVI)) and in 1963 in respect of the Portuguese colonies (resolution
1913 (XVII) 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 func-
tions at this moment” (General Assembly, Twenty-third Session, 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 Gen-
eral 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

17
CONSTRUCTION OF A WALL (ADVISORY OPINION) 150

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 Ses-
sion 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 resolu-
tion 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 Gen-
eral 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 perma-
nent 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 imme-
diately with a view to making appropriate recommendations to

LE]

Members for collective measures . . .”.

The procedure provided for by that resolution is premised on two con-
ditions, namely that the Council has failed to exercise its primary respon-
sibility for the maintenance of international peace and security as a result
of a negative vote of one or more permanent members, and that the situa-

18
CONSTRUCTION OF A WALL (ADVISORY OPINION) 151

tion 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 Emer-
gency 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 Terri-
tory. 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 construc-
tion 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 Emer-
gency Special Session, the General Assembly could adopt any resolution
falling within the subject-matter for which the Session had been con-
vened, 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 rele-
vance 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

19
CONSTRUCTION OF A WALL (ADVISORY OPINION) 152

resolutions or decisions of the Assembly adopted under such cir-
cumstances 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 con-
siders 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 (4) 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” (Z 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 advi-
sory 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 |, of the Statute of the Court. It has been contended in this
regard that, for a question to constitute a “legal question” for the pur-
poses of these two provisions, it must be reasonably specific, since other-
wise 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 conse-
quences” of the construction of the wall only allows for two possible
interpretations, each of which would lead to a course of action that is

20
CONSTRUCTION OF A WALL (ADVISORY OPINION) 153

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 juris-
diction, 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 pos-
sible 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 question-
able 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 Con-
vention relative to the Protection of Civilian Persons in Time of War of
12 August 1949 (hereinafter the “Fourth Geneva Convention”) and rele-
vant 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, .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 uncer-

21
CONSTRUCTION OF A WALL (ADVISORY OPINION) 154

tainty will require clarification in interpretation, and such necessary clari-
fications 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 opin-
ion was being sought ({nterpretation of the Greco-Turkish Agreement of
1 December 1926 (Final Protocol, Article IV), Advisory Opinion, 1928,
P.C.LJ., Series B, No. 16 (1), pp. 14-16), or did not correspond to the
“true legal question” under consideration ({nterpretation of the Agree-
ment of 25 March 1951 between the WHO and Egypt, Advisory Opinion,
LCJ. 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 Judge-
ment No. 273 of the United Nations Administrative Tribunal, Advisory
Opinion, 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.LJ., Series B,
No. 8; Admissibility of Hearings of Petitioners by the Committee on
South West Africa, Advisory Opinion, C.J. Reports 1956, p. 25; Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Char-
ter), Advisory Opinion, .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, inter-
pret them and apply them .. ., thus offering a reply to the question posed
based on law” (Legality of the Threat or Use of Nuclear Weapons, L.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 prin-
ciples of international law. Thus, the Court is first called upon to deter-
mine 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” (4 CJ.
Reports 1996 (1), p. 236, para. 15, referring to Conditions of Admission
of a State to Membership in the United Nations (Article 4 of the Char-
ter), 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, LC.J. Reports 1954, p. 51; and Legal Con-

22
CONSTRUCTION OF A WALL (ADVISORY OPINION) 155

sequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276
(1970), Advisory Opinion, .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 charac-
ter 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, LC.J. Reports 1973, p. 172, para. 14). Whatever
its political aspects, the Court cannot refuse to admit the legal char-
acter 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 inter-
national 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 Gen-
eral 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, LC.J. Reports 1962, p. 155).” (Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, 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,

“im 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 appli-
cable with respect to the matter under debate . . .” (LC./. 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” (C.J. Reports 1996 (1), p. 234, para. 13).

23
CONSTRUCTION OF A WALL (ADVISORY OPINION) 156

The Court is of the view that there is no element in the present proceed-
ings 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.

x *

43. It has been contended in the present proceedings, however, that
the Court should decline to exercise its jurisdiction because of the pres-
ence 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, 1 C.J. Reports
1996 (1), pp. 234-235, 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” Unterpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, 1.C.J. Reports
1950, p. 71: see also, for example, Difference Relating to Immunity from
Legal Process of a Special Rapporteur of the Commission on Human
Rights, Advisory Opinion, 1. 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, para-
graph 2, of the Charter), Advisory Opinion, LC.J. Reports 1962, p. 155;
see also, for example, Difference Relating to Immunity from Legal Pro-
cess of a Special Rapporteur of the Commission on Human Rights, Advi-
sory 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 deci-
sion 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 C.J. Reports 1996 (1),
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

24
CONSTRUCTION OF A WALL (ADVISORY OPINION) 157

not reply to a question put to it (Status of Eastern Carelia, Advisory
Opinion, 1923, P.C.L.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, 1 C.J. Reports
1996 (1), pp. 235-236, para. 14).

45. These considerations do not release the Court from the duty to sat-
isfy itself, each time it is seised of a request for an opinion, as to the pro-
priety 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 argu-
ments 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 Assem-
bly “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 conten-
tious jurisdiction by interested States has no bearing on the Court’s juris-
diction 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 Opin-
ion 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

25
CONSTRUCTION OF A WALL (ADVISORY OPINION) 158

United Nations or not, can prevent the giving of an Advisory Opin-
ion 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.” ({nterpreta-
tion of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, LC.J. Reports 1950, p. 71; see also West-
ern Sahara, 1 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 how-
ever examine the opposition of certain interested States to the request by
the General Assembly in the context of issues of judicial propriety. Com-
menting 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, LCJ. 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, LC.J. Reports 1971, p. 24, para. 34).

49. Furthermore, the Court does not consider that the subject-matter

26
CONSTRUCTION OF A WALL (ADVISORY OPINION) 159

of the General Assembly’s request can be regarded as only a bilateral
matter between Israel and Palestine. Given the powers and responsibili-
ties 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 responsibil-
ity 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 Assem-
bly 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 resolu-
tion 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 con-
sider 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:

27
CONSTRUCTION OF A WALL (ADVISORY OPINION) 160

“It has... been submitted that a reply from the Court in this case
might adversely affect disarmament negotiations and would, there-
fore, 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 addi-
tional 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.” {Z C.J. Reports
1996 (I), p. 237, para. 17: see also Western Sahara, 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 fulfil 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 ques-
tion 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

28
CONSTRUCTION OF A WALL (ADVISORY OPINION) 161

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 /nterpretation of Peace Treaties with Bul-
garia, 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 com-
plicated in an advisory proceeding, particularly since Israel alone pos-
sesses 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 avail-
able to it is sufficient to give an advisory opinion must be decided in each
particular instance. In its Opinion concerning the /nterpretation of Peace
Treaties with Bulgaria, Hungary and Romania (LC.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, LC.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,
LC J. Reports 1950, p. 72; see Status of Eastern Carelia, P.C.LJ.,
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 docu-
mentary evidence of the relevant facts (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

29
CONSTRUCTION OF A WALL (ADVISORY OPINION) 162

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 infor-
mation 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 observa-
tions 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 evi-
dence 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 argu-
ment 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 for-
ward 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.” (1. CJ.
Reports 1951, p. 19.) Likewise, in its Opinion on the Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South

30
CONSTRUCTION OF A WALL (ADVISORY OPINION) 163

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.” (CJ.
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, [.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 advi-
sory opinion. Nevertheless, it is not for the Court itself to purport to
decide whether or not an advisory opinion is needed by the Assem-
bly 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.” (Z 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 pur-
pose. 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 con-
siders that the General Assembly has not yet determined all the possible
consequences of its own resolution. The Court’s task would be to deter-
mine in a comprehensive manner the legal consequences of the construc-
tion of the wall, while the General Assembly -— and the Security Council
— may then draw conclusions from the Court’s findings.

Ba

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.

31
CONSTRUCTION OF A WALL (ADVISORY OPINION) 164

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 con-
sequences of the construction of the wall in the Occupied Palestinian Ter-
ritory. 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

32
CONSTRUCTION OF A WALL (ADVISORY OPINION) 165

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 con-
structed 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 inde-
pendent nations can be provisionally recognized subject to the ren-
dering 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.” (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 adop-
tion 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

33
CONSTRUCTION OF A WALL (ADVISORY OPINION) 166

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 agree-
ment 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 Jor-
dan. 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 bound-
ary 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 acquisi-
tion 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”, con-
demned 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”.

34
CONSTRUCTION OF A WALL (ADVISORY OPINION) 167

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 | 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 vari-
ous 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 con-
tinued to have the status of occupying Power.

35
CONSTRUCTION OF A WALL (ADVISORY OPINION) 168

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 State-
ment 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 “con-
tinuous 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 settle-
ments 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 kilo-
metres 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 construc-
tion 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 dis-
tance 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

36
CONSTRUCTION OF A WALL (ADVISORY OPINION) 169

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-
Baga al-Sharqiya enclave, which in January 2004 was close to comple-
tion at the time when the Secretary-General submitted his Written State-
ment.

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 Jor-
danian 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 Cl, between inter alia the villages of Rantis and Budrus, approxi-
mately 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 Cl 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 Sec-
retary-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 Baga al-Sharqiya was

37
CONSTRUCTION OF A WALL (ADVISORY OPINION) 170

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 State-
ment 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 com-
plex.

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 northern-
most 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

38
CONSTRUCTION OF A WALL (ADVISORY OPINION) 171

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 inter-
national 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 Palestin-
ian 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 con-
cerning 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 Mili-
tary and Paramilitary Activities in and against Nicaragua ( Nicaragua v.
United States of America), the principles as to the use of force incorpo-
rated in the Charter reflect customary international law (see Z. C.J. Reports
1986, pp. 98-101, paras. 187-190); the same is true of its corollary entail-
ing 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

39
CONSTRUCTION OF A WALL (ADVISORY OPINION) 172

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 {| 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-deter-
mination, and lays upon the States parties the obligation to promote the
realization of that right and to respect it, in conformity with the provi-
sions of the United Nations Charter.

The Court would recall that in 1971 it emphasized that current devel-
opments 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) notwithstand-
ing Security Council Resolution 276 (1970), Advisory Opinion, I. CJ.
Reports 1971, p. 31, paras. 52-53). The Court has referred to this prin-
ciple on a number of occasions in its jurisprudence (ibid. ; see also Western
Sahara, Advisory Opinion, 1 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, 1 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 civi-
lised nations, and were regarded as being declaratory of the laws and cus-
toms of war” (Judgment of the International Military Tribunal of Nurem-
berg, 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 rnilitary operations (Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, .C.J. Reports 1996 (1), p. 256,
para. 75). The Court considers that the provisions of the Hague Regula-
tions 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 I
and III of the Hague Regulations. Section HI of those Regulations,
which concerns “Military authority over the territory of the hostile
State”, is particularly pertinent in the present case.

40
CONSTRUCTION OF A WALL (ADVISORY OPINION) 173

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 annexa-
tion 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 Conven-
tion. 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 con-
cluded, however, that it “[was] not -- as a depositary — in a position to
decide whether” “the request [dated 14 June 1989] from the Palestine Lib-
eration Movement in the name of the ‘State of Palestine’ to accede” inter
alia to the Fourth Geneva Convention “can be considered as an instru-
ment of accession”.

92. Moreover, for the purpose of determining the scope of application
of the Fourth Geneva Convention, it should be recalled that under com-
mon 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 authori-
ties 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

41
CONSTRUCTION OF A WALL (ADVISORY OPINION) 174

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 occa-
sions 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 recailed 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 con-
flict 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 pro-
ceedings, 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 ambigu-
ous 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 Objection, Judgment, LCI.
Reports 1996 (II), p. 812, para. 23; see, similarly, Kasikili/Sedudu
Island (BotswanalNamibia), Judgment, LC.J. Reports 1999 (IT),
p. 1059, para. 18, and Sovereignty over Pulau Ligitan and Pulau
Sipadan (Indonesial Malaysia), Judgment, LC.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 satis-

42
CONSTRUCTION OF A WALL (ADVISORY OPINION) 175

fied, 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 resis-
tance, 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 inhabi-
tants 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 prépara-
toires. The Conference of Government Experts convened by the Interna-
tional Committee of the Red Cross (hereinafter, “ICRC”) in the after-
math 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 Vic-
tims, Geneva, 14-26 April 1947, p. 8). The drafters of the second para-
graph of Article 2 thus had no intention, when they inserted that para-
graph 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 Confer-
ence on [5 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

43
CONSTRUCTION OF A WALL (ADVISORY OPINION) 176

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 Decem-
ber 2001, it recalled that “the ICRC has always affirmed the de jure appli-
cability 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”. Subse-
quently, 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 occupa-
tion”.

Ten years later, the Security Council examined “the policy and prac-
tices 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 Con-
vention 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 Conven-
tion”. 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 terri-
tories.

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,

44
CONSTRUCTION OF A WALL (ADVISORY OPINION) 177

to the extent they affect civilians, are governed by Hague Conven-
tion 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 Cov-
enant 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

45
CONSTRUCTION OF A WALL (ADVISORY OPINION) 178

and Political Rights. In those proceedings certain States had argued that
“the Covenant was directed to the protection of human rights in peace-
time, but that questions relating to unlawful loss of life in hostilities
were governed by the law applicable in armed conflict” (4 C.J. Reports
1996 (1), 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 /ex specialis, namely, the
law applicable in armed conflict which is designed to regulate the
conduct of hostilities.” (/bid., 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 Cov-
enants 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.”

46
CONSTRUCTION OF A WALL (ADVISORY OPINION) 179

This provision can be interpreted as covering only individuals who are
both present within a State’s territory and subject to that State’s jurisdic-
tion. 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 Cov-
enant 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, Lopez 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 Uru-
guayan 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 adopt-
ing the wording chosen, the drafters of the Covenant did not intend to
allow States to escape from their obligations when they exercise jurisdic-
tion outside their national territory. They only intended to prevent per-
sons residing abroad from asserting, vis-a-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 Com-
mission 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 communi-
cations to the Human Rights Committee, and of the view of the Com-
mittee.

In 1998, Israel stated that, when preparing its report to the Committee,
it had had to face the question “whether individuals resident in the occu-
pied 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

47
CONSTRUCTION OF A WALL (ADVISORY OPINION) 180

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 prin-
ciples of public international law” (CCPR/CO/78/ISR, para. 11).

111. In conclusion, the Court considers that the International Cov-
enant 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 met-
ropolitan 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 Com-
mittee 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, con-
tinued 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

48
CONSTRUCTION OF A WALL (ADVISORY OPINION) 181

its concern about Israel’s position and reaffirmed “its view that the State
party’s obligations under the Covenant apply to ail territories and popu-
lations 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. [t 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 obli-
gation 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 Con-
vention 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 IJ to the report of the Secretary-General,
entitled “Summary Legal Position of the Palestine Liberation Organiza-
tion”, 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 conse-
quently 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. /nter alia, it was con-
tended 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 acquisi-
tion of territory by the use of force.”

In this connection, it was in particular emphasized that “[t]he route of the
wall is designed to change the demographic composition of the Occupied
Palestinian Territory, including East Jerusalem, by reinforcing the Israeli

49
CONSTRUCTION OF A WALL (ADVISORY OPINION) 182

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 tem-
porary 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 Per-
manent 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 Novem-
ber 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 para-
graph 75 above).

118. As regards the principle of the right of peoples to self-determina-
tion, the Court observes that the existence of a “Palestinian people” is no

50
CONSTRUCTION OF A WALL (ADVISORY OPINION) 183

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 Presi-
dent 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 commit-
ments, “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 Septem-
ber 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. | 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 Terri-
tory. Moreover, it is apparent from an examination of the map men-
tioned 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 Occupy-
ing Power shall not deport or transfer parts of its own civilian population
into the territory it occupies.” That provision prohibits not only depor-
tations 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 has conducted a policy and developed practices involving the
establishment of settlements in the Occupied Palestinian Territory, con-
trary 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 Conven-
tion and:

“to rescind its previous measures and to desist from taking any
action which would result in changing the legal status and geo-
graphical nature and materially affecting the demographic composi-
tion of the Arab territories occupied since 1967, including Jerusalem

51
CONSTRUCTION OF A WALL (ADVISORY OPINION) 184

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 viola-
tion” 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 con-
struction 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 asso-
ciated 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 terri-
tory 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 popu-
lations 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 obli-
gation to respect that right.

*

123. The construction of the wall also raises a number of issues in rela-

52

CONSTRUCTION OF A WALL (ADVISORY OPINION) 185

tion to the 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 HI is
currently applicable in the West Bank and Article 23 (g) of the Regula-
tions, in Section II, is thus not pertinent.

Section IIT 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, respect-
ing the laws in force in the country”. Article 46 adds that private prop-
erty 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 occu-
pation 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 con-
flict 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: | 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 appli-
cable 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

53

CONSTRUCTION OF A WALL (ADVISORY OPINION) 186

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 impos-
sible 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 accom-
modation 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 pro-
hibited.”

54
CONSTRUCTION OF A WALL (ADVISORY OPINION) 187

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
co-operative organizations, is prohibited, except where such destruc-
tion 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 Com-
mittee 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 con-
signments 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 shail, 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 instru-
ment. 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 pro-
claimed 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

55
CONSTRUCTION OF A WALL (ADVISORY OPINION) 188

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 un-
lawful 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 pro-
vides: “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 pro-
visions 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 reli-
gious buildings or sites in Palestine, including that of preserving
existing rights and of securing free access to the Holy Places, reli-
gious 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 (If) on the future government of Palestine,
devoted an entire chapter of the Plan of Partition to the Holy Places, reli-
gious 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 con-
formity with existing rights, to all residents and citizens [of the Arab

56
CONSTRUCTION OF A WALL (ADVISORY OPINION) 189

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 VIT for the establishment of a special committee for “the formu-
lation of agreed plans and arrangements for such matters as either Party
may submit to it” for the purpose of enlarging the scope of the Agree-
ment 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 provi-
sions, namely: the right to work (Arts. 6 and 7); protection and assist-
ance accorded to the family and to children and young persons (Art. 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 condi-
tions which contravene the requirements of Articles 46 and 52 of the
Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Con-
vention.

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

57
CONSTRUCTION OF A WALL (ADVISORY OPINION) 190

Israeli citizens and those assimilated thereto). Such restrictions are most
marked in urban areas, such as the Qalqiliya enclave or the City of Jeru-
salem 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 situa-
tion of human rights in the Palestinian territories occupied by Israel since
1967, “Qalqiliya, a city with a population of 40,000, is completely sur-
rounded 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 Sep-
tember 2003, para. 9.)

There have also been serious repercussions for agricultural production,
as is attested by a number of sources. According to the Special Com-
mittee 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 thou-
sands 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 agri-
cultural 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 aggra-

58

CONSTRUCTION OF A WALL (ADVISORY OPINION) 191

vated 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 pri-
mary sources of water. This is also attested by a number of different
information sources. Thus the report of the Secretary-General states gen-
erally 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 Rappor-
teur 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 con-
struction 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 Palestin-
ians have already been compelled by the construction of the wall and its
associated régime to depart from certain areas, a process that will con-
tinue 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

59

CONSTRUCTION OF A WALL (ADVISORY OPINION) 192

of Israeli citizens and those assimilated thereto) as guaranteed under
Article 12, paragraph |, of the International Covenant on Civil and Poli-
tical 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 para-
graphs 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 interna-
tional 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 transfer-
ring 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 car-
ried 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 con-
ventions, 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 con-
ventional 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 Interna-

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CONSTRUCTION OF A WALL (ADVISORY OPINION) 193

tional 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 pro-
vided 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 |. 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 eco-
nomic, social and cultural rights, resulting from Israel’s construction of
the wall, fail to meet a condition laid down by Article 4 of the Interna-
tional 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 infringe-
ments resulting from that route cannot be justified by military exigencies
or by the requirements of national security or public order. The construc-
tion of such a wall accordingly constitutes breaches by Israel of various

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CONSTRUCTION OF A WALL (ADVISORY OPINION) 194

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 obli-
gations 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 resolu-
tions 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 con-
templated 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 con-
struction 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 para-

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graphs 135 and 136 above). Since those treaties already address con-
siderations 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. How-
ever, the Court will not need to consider that question. As the Court
observed in the case concerning the Gabcikovo-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” (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 con-
formity 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 con-
siderations 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 Jeru-
salem, 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.

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CONSTRUCTION OF A WALL (ADVISORY OPINION) 196

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 State-
ment, 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 sub-
mitted that such reparation should first of all take the form of restitution,
namely demolition of those portions of the wall constructed in the Occu-
pied Palestinian Territory and annulment of the legal acts associated with
its construction and the restoration of property requisitioned or expro-
priated 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 com-
ply 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 flow-
ing 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 normfs] and principles by

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CONSTRUCTION OF A WALL (ADVISORY OPINION) 197

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 Jerusa-
lem, and its associated régime, are contrary to various of Israel’s inter-
national 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 con-
struction of the wall in the Occupied Palestinian Territory. The obliga-
tion 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 obli-
gation (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, 1.CJ.
Reports 1986, p. 149; United States Diplomatic and Consular Staff in
Tehran, Judgment, 1.C.J. Reports 1980, p. 44, para. 95; Haya de la
Torre, Judgment, L 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

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CONSTRUCTION OF A WALL (ADVISORY OPINION) 198

its international obligations stem from the construction of the wall and
from its associated régime, cessation of those violations entails the dis-
mantling 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 provid-
ing 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 destruc-
tion 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 conse-
quences 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 cor-
responding 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 com-
pensation due for an act contrary to international law.” (Factory
at Chorzow, Merits, Judgment No. 13, 1928, P.C.LJ., 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 Jegal persons having
suffered any form of material damage as a result of the wall’s construc-
tion.

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CONSTRUCTION OF A WALL (ADVISORY OPINION) 199

154. The Court will now consider the legal consequences of the inter-
nationally 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, L.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-determi-
nation, as it evolved from the Charter and from United Nations practice,
has an erga omnes character” (1 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-determi-
nation 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 imple-
mentation 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 intransgress-
ible principles of international customary law” (Z 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 | 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

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CONSTRUCTION OF A WALL (ADVISORY OPINION) 200

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 obliga-
tions involved, the Court is of the view that all States are under an obli-
gation not to recognize the illegal situation resulting from the construc-
tion 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 construc-
tion. 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 con-
sider what further action is required to bring to an end the illegal situa-
tion 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 settle-
ment 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 secu-
rity, 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 inter-
national 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

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CONSTRUCTION OF A WALL (ADVISORY OPINION) 201

situation can be brought to an end only through implementation in
good faith of all relevant Security Council resolutions, in particular resolu-
tions 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 establish-
ment of a Palestinian State, existing side by side with Israel and its other
neighbours, with peace and security for all in the region.

a *

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 con-
struction 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

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CONSTRUCTION OF A WALL (ADVISORY OPINION) 202

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;

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 assis-
tance 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 inter-
national law, to ensure compliance by Israel with international humani-
tarian 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 Kooimans, 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 regime, 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

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CONSTRUCTION OF A WALL (ADVISORY OPINION) 203

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) Sui Jiuyong,
President.
(Signed) Philippe COUVREUR,
Registrar.

Judges Koroma, Hiccins, Koommans and AL-KHASAWNEH append
separate opinions to the Advisory Opinion of the Court; Judge BUER-
GENTHAL 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.

71