UN General Assembly Requests a World Court Advisory Opinion On
Israel’s Separation Barrier
By Pieter H.F. Bekker
On December 8, 2003, the United Nations General Assembly adopted
Resolution ES-10/14 embodying a request for an advisory opinion
from the International Court of Justice (ICJ or Court), the UN’s
principal judicial organ located in The Hague, The Netherlands,
on the legal consequences arising from Israel’s construction of
a barrier (“Barrier”) separating part of the West Bank from
Israel. The text of the request reads: “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?”
 The Assembly was meeting in its tenth resumed
emergency special session on the question of Palestine. The
recorded vote in the Assembly, which consists of all 191 UN
member states, was 90 in favor, to 8 against,
 with 74 abstentions. Nineteen member states did not
The request squarely puts before the Court the sensitive issue
of the balance between respect for human rights (including the
right to self-determination) and the interests of security in
the context of terrorism. It raises the issue of the scope of a
state’s margin of appreciation in response to terrorism. If
such response is made in alleged self-defense, it raises the
question what measures may legitimately be taken under
international law and what limitations the principle of
proportionality recognized by international humanitarian law
places on states exercising the right of self-defense.
it decides to entertain the Assembly’s request for an advisory
opinion, the Court also may have to decide the threshold
question whether the Geneva Conventions are applicable to
Israel’s occupation of the Palestinian territories. Israel has
taken the position that, since Article 2 of the Fourth Geneva
Convention says that the Convention applies only to “occupation
of the territory of a High Contracting Party,” and since the
West Bank and East Jerusalem are not within the recognized
territory of any contracting party, Israel is not legally bound
to apply the Convention on those places.
Before summarizing the Court’s advisory power and procedure,
several factual issues pertaining to the Barrier will be
I. The Barrier
substantial portion of the Barrier’s route, which runs from
north to south, runs several miles inside the so-called Green
Line – the line that marks the de facto boundary that was
in place between Israel and the West Bank as it was part of
Jordan before the “Six Day War” in 1967. As such, the Barrier
will incorporate occupied Palestinian land, including a number
of Palestinian villages. According to the latest report of
Special Rapporteur John Dugard of the UN’s Commission on Human
Rights, over 200,000 “Palestinians living between the Wall and
the Green Line will be effectively cut off from their farmlands
and workplaces, schools, health clinics and other social
services,” likely leading to “a new generation of refugees or
internally displaced persons.”
 The report points out that “[s]ettlements in East
Jerusalem and the West Bank are the principal beneficiaries of
the Wall and it is estimated that approximately half of the
400,000 settler population will be incorporated on the Israeli
side of the Wall.” 
The Barrier includes “buffer zones with trenches and barbed
wire, trace paths to register footprints, an electric fence with
sensors to warn of any incursion, a two-lane patrol road and
fortified guard towers at regular intervals” with limited
crossings.  When
finished the Barrier will measure over 400 miles at a projected
cost of US$1.4 billion.
 About one-fourth of the Barrier has been completed to
date, the remainder being scheduled for completion by 2005.
Israel has defended the Barrier as a non-permanent “security
fence” the construction of which is justified by Israel’s right
to exercise its right to self-defense against suicide bombers
penetrating into Israeli territory from the West Bank.
 In the view of the Palestinians, the Barrier is
designed to fix borders unilaterally ahead of any future peace
settlement with Israel and is used as an excuse to establish
Jewish settlements in occupied Palestinian territory.
The adoption of the Assembly’s request, the draft of which was
introduced by Kuwait on behalf of the Group of the Arab States,
follows the release of a report by UN Secretary-General Kofi
Annan, on November 28, 2003,
 stating that the Barrier “is not in compliance” with
General Assembly resolution ES-10/13, adopted by a vote of 144-4
on October 21, 2003, demanding that Israel halt its construction
activities and dismantle the existing parts of the Barrier. The
September 8 report of the UN Special Rapporteur concluded that
the “evidence strongly suggests that Israel is determined to
create facts on the ground amounting to de facto annexation,”
which the report characterized as “conquest in international
law, … prohibited by the Charter of the United Nations and the
[1949 Geneva Convention relative to the Protection of Civilian
Persons in Time of War].”
 Although the U.S. voted against the December 8
resolution, the Bush Administration has repeatedly called on
Israel to cease construction of the Barrier and announced in
November that it would reduce loan guarantees to Israel in
retaliation for its continued construction of the Barrier.
II. The ICJ’s Advisory Power and Procedure
The ICJ has the power to give advisory opinions on legal
questions referred to it by any of 21 duly authorized United
Nations organs and agencies.
 All of the principal organs of the United Nations
(with the exception of the Secretary-General representing the UN
Secretariat), the 16 UN Specialized Agencies and the Interim
Committee of the General Assembly may submit requests for
advisory opinions. These are the only organizations having
“standing” in advisory proceedings before the Court. The UN
Security Council and General Assembly have the authority to
request advisory opinions on any legal question, while the other
organizations may request advisory opinions only on legal
questions arising within the scope of their activities.
Advisory proceedings do not include any parties, so that Israel
will not be a defendant, or “respondent,” in this particular
The written request for an advisory opinion was received by the
ICJ Registry in The Hague on December 10th,
 following which the Court or the presiding judge will
issue an Order inviting any state entitled to appear before the
ICJ and international organizations selected by it to file
written statements concerning the request. It will be
interesting to see whether the Court also will invite the
Palestinian Authority, an entity enjoying Observer status with
the UN General Assembly, to participate in this process. Such
participation would be a novelty in the Court’s history.
Those organizations and states that have submitted written
statements also may be authorized by the court to submit written
comments on each other’s statements in what constitutes a second
round of written pleadings. The Court subsequently may decide
to hold public hearings at which those organizations and states
that have submitted written statements and comments and others
may address the Court. Such hearings usually take only a few
The Court will first have to determine that it has jurisdiction,
under the UN Charter and the ICJ Statute, to reply to the
General Assembly’s request. The Court confirmed in connection
with the Assembly’s most recent request for advisory opinion
that the Assembly has broad competence to engage the Court.
One possible ground for refusal to entertain the Assembly’s
request would be a finding by the Court that this request calls
for a factual investigation that cannot be undertaken without
the consent and cooperation of both Israel and the Palestinian
Authority. The Court’s predecessor once declined to give an
advisory opinion on the ground that the necessary investigation
in the case at hand required the consent and participation of
the two states involved in the dispute that had given rise to
the request for an advisory opinion (Finland and Russia, which
at the time of the request was not a member state of the League
of Nations, the organization requesting the advisory opinion).
 In his explanation after the vote on Resolution
ES-10/14, the representative of the United Kingdom commented
that his country had abstained on the vote requesting an
advisory opinion “because it was inappropriate to take such
action without the consent of both parties.”
 In this case, however, it is unclear whether there is
a dispute between two states. The United Nations has not
recognized Palestine as a state being capable of granting or
refusing consent. Presumably, the Palestinian Authority will be
eager to participate in connection with this advisory
proceeding, having initiated the process that resulted in the
adoption of Resolution ES-10/14.
The Court next must satisfy itself that the Assembly’s request
relates to a legal question within the meaning of the ICJ
Statute and the UN Charter, in this case, the compatibility of
Israel’s construction of the Barrier with international law. In
this connection, the Court has previously pointed out that the
political nature of any motives inspiring the request, the
political implications of any advisory opinion, and any
political aspects of the legal question are irrelevant to the
establishment of its jurisdiction to give an opinion.
Even after it has established that it has competence to issue an
advisory opinion, the Court must still consider whether it
should exercise its inherent discretionary power not to give an
According to the Court’s consistent case law, only “compelling
reasons” can lead it to refuse a request for an advisory
opinion.  The
fact that a question put to the Court did not relate to a
specific dispute, or was couched in abstract terms, has not been
found to be a compelling reason to decline to give the opinion
requested. In assessing its power of appreciation, the Court
also has confirmed the exclusive right of the General Assembly
to determine the usefulness of an opinion in the light of its
own needs. 
Specifically, the Court has refused to consider the origin or
political history of a request, or the distribution of votes
underlying the adopted resolution. Therefore, the fact that
more than half of the members of the General Assembly did not
vote for Resolution ES-10/14 is unlikely to affect the Court’s
consideration of the request for advisory opinion included in
that resolution. 
Moreover, the fact that General Assembly resolutions
generally are non-binding under the UN Charter has no effect
whatsoever on the Court’s advisory jurisdiction.
After deliberations are held by the full Court (consisting of 15
members from different nations) immediately following the
closing of any hearing, the advisory opinion is then delivered
at a public sitting of the Court. The deliberative phase alone
usually takes several months.
Under the UN Charter and the ICJ Statute, advisory opinions
rendered by the Court are non-binding.
 This non-binding character does not mean that
advisory opinions are without legal effect, because the legal
reasoning embodied in them reflects the Court’s authoritative
views on important issues of international law and in arriving
at them, the Court follows essentially the same rules and
procedures that govern its binding judgments delivered in
contentious cases submitted to it by sovereign states. An
advisory opinion derives its status and authority from the fact
that it is the official pronouncement of the principal judicial
organ of the United Nations.
The ICJ has delivered only six advisory opinions in the last 20
years. This is the first time since 1998 that the Court will be
requested to render an opinion.
 In that instance, the Court issued its Opinion within
nine months from the date on which it received the request.
The last time the General Assembly submitted a request for a
non-binding advisory opinion was in December 1994, resulting in
a July 1996 Opinion that was adopted by the ICJ president’s
casting vote following a tie in votes.
About the Author:
Pieter H.F. Bekker, Ph.D. (firstname.lastname@example.org)
practices international law and arbitration at White & Case LLP
in New York City, and formerly served as a staff lawyer at the
International Court of Justice. He has written three books
(“The Legal Position of Intergovernmental Organizations,”
“Commentaries on World Court Decisions (1987-1996)” and “World
Court Decisions at the Turn of the Millennium (1997-2001),” all
with Kluwer) and co-chaired the 94th Annual Meeting
of the American Society of International Law in April 2000. The
views expressed here are solely those of the author.
ICJ Communiqué 2003/42 (Dec. 10, 2003) available from the
ICJ’s Web site, <www.icj-cij.org>.
Ethiopia, Federated States of Micronesia, Israel, Marshall
Islands, Nauru, Palau, and the United States.
 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,
UN Doc. E/CN.4/2004/6, at 2 (Sept. 8, 2003) [hereinafter
“Dugard Report”]. Prof. Dugard, a native of South Africa,
is professor of public international law at Leiden
University in The Netherlands and a member of the
International Law Commission of the United Nations.
 According to
Special Rapporteur John Dugard, however, the Barrier “has
all the features of a permanent structure.” Id. at
 See UN
Report, at 2. According to Art. 47 of the Fourth Geneva
Convention, protected persons in an occupied territory shall
not be deprived of the benefits of the Convention “by any
annexation … of the occupied territory.” UN Security
Council resolutions 478 (1980) and 497 (1981) declared that
Israel’s actions aimed at the annexation of East Jerusalem
and the Golan Heights are “null and void and should not be
recognized by states." Id. at 8.
UN Charter Art. 96 and ICJ Statute Arts. 65-68.
UN Charter Art. 96(2).
ICJ Communiqué 2003/42 (Dec. 10, 2003).
Legality of the Threat or Use of Nuclear Weapons,
1996 I.C.J. Reports, p. 226, paras. 11-12, Advisory
Opinion of July 8, 1996. For my case report, see 91 AJIL
Status of Eastern Carelia, Permanent Court of
International Justice, Advisory Opinion, 1923 P.C.I.J.
Series B, No. 5.
Assembly Press Release GA/10216, at 9 (Dec. 8, 2003). The
reference to “both parties” presumably was to Israel and the
Legality of the Threat or Use of Nuclear Weapons,
1996 I.C.J. Reports, p. 226, at para. 13.
 Art. 65(1)
of the ICJ Statute reads: “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.”
(emphasis added). The question of the Court’s exercise of
its discretionary power to give an advisory opinion arises
only after it has established that it has jurisdiction.
See Legality of the Use by a State of Nuclear Weapons in
Armed Conflict, 1996 I.C.J. Reports p. 66, para.
14, Advisory Opinion of July 8, 1996. For my case report,
see 91 AJIL 134 (1997).
Legality of the Threat or Use of Nuclear Weapons,
1996 I.C.J. Reports, p. 226, para. 16, Advisory Opinion
of July 8, 1996.
example, in the most recent advisory proceeding triggered by
a request from the General Assembly, the fact that the
request was adopted by 78 votes in favor, to 43 against,
with 38 abstentions, was no ground for lack of
jurisdiction. Id. See also Paul Szasz’s “Addendum:
The Vote in the General Assembly” to my case report in the
American Journal of International Law, 91 AJIL 133 (1997)
(arguing that the Court should consider proprio motu
whether a request concerns an Assembly decision on
“important questions” for which Article 18(2) of the UN
Charter requires a two-thirds majority of votes).
provision contained in an international instrument governing
the request for an advisory opinion may, however, explicitly
confer binding force on the advisory opinion for the parties
involved. See Difference Relating to Immunity
from Legal Process of a Special Rapporteur of the Commission
on Human Rights, 1999 I.C.J. Reports, p. 62,
Advisory Opinion of April 29, 1999. See also Charles
N. Brower & Pieter H.F. Bekker, Understanding “Binding”
Advisory Opinions of the International Court of Justice,
in: Liber Amicorum
Judge Shigeru Oda (N. Ando, E. McWhinney & R. Wolfrum
 The most
recent advisory proceeding was Difference Relating to
Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, in which a request from the
Economic and Social Council of the United Nations was
adopted on August 5, 1998 (ECOSOC Decision 1998/297), and
filed in the ICJ Registry on August 10, 1998. For my case
report, see 93 AJIL 913 (1999).
Legality of the Threat or Use of Nuclear Weapons,
1996 I.C.J. Reports, p. 226, Advisory Opinion of July 8,
The purpose of ASIL Insights is to provide concise and
informed background for developments of interest to the
international community. The American Society of
International Law does not take positions on substantive
issues, including the ones discussed in this Insight.
may be found on the ASIL
Educational copying is permitted with due acknowledgement.