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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.

If 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 discussed.

A 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.” [3] 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.” [4]

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. [5] When finished the Barrier will measure over 400 miles at a projected cost of US$1.4 billion. [6] 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. [7] 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, [8] 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].” [9] 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.

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. [10] 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. [11]

Advisory proceedings do not include any parties, so that Israel will not be a defendant, or “respondent,” in this particular proceeding.

The written request for an advisory opinion was received by the ICJ Registry in The Hague on December 10th, [12] 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 days.

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. [13]

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). [14] 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.” [15] 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. [16]

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 opinion. [17] According to the Court’s consistent case law, only “compelling reasons” can lead it to refuse a request for an advisory opinion. [18] 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. [19] 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. [20] 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. [21] 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. [22] 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. [23]

About the Author:
Pieter H.F. Bekker, Ph.D. (pbekker@whitecase.com) 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 94^th Annual Meeting of the American Society of International Law in April 2000. The views expressed here are solely those of the author.

[1] See ICJ Communiqué 2003/42 (Dec. 10, 2003) available from the ICJ’s Web site, <www.icj-cij.org>.

[2] Australia, Ethiopia, Federated States of Micronesia, Israel, Marshall Islands, Nauru, Palau, and the United States.

[3] 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.

[7] According to Special Rapporteur John Dugard, however, the Barrier “has all the features of a permanent structure.” Id. at 2.

[9] Dugard 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.

[13] See 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 126 (1997).

[14] See Status of Eastern Carelia, Permanent Court of International Justice, Advisory Opinion, 1923 P.C.I.J. Series B, No. 5.

[15] General Assembly Press Release GA/10216, at 9 (Dec. 8, 2003). The reference to “both parties” presumably was to Israel and the Palestinian Authority.

[16] Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Reports, p. 226, at para. 13.

[17] 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).

[18] Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Reports, p. 226, para. 16, Advisory Opinion of July 8, 1996.

[20] For 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).

[21] A 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 eds., 2002).

[22] 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).

[23] See Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Reports, p. 226, Advisory Opinion of July 8, 1996.

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