The 28-page article provides invaluable information on the options open to the International Court of Justice (ICJ) and draws on relevant precedents in its analysis. The 188 footnotes provide highly useful links for researchers. Akram’s article will later be published as a Palestine Center Information Paper. Some extracts are given below. For more information or to schedule an interview with Professor Akram, please email info@palestinecenter.org

** This paper addresses the parameters of a decision by the ICJ on the legality of Israel’s wall, in the exercise of the ICJ’s advisory jurisdiction. The range of options available to the ICJ in rendering such a decision include the most narrow reading of its jurisdiction in such a case, to a full review of the major issues underlying the Palestinian-Israeli conflict: the status of the Palestinian people, their right to self-determination, and the applicability of international human rights law and humanitarian law to the Israeli occupation. These questions will be addressed here, as they have been argued by the participants to the ICJ proceedings, in order to examine how the ICJ might view the legal consequences flowing from the General Assembly’s expressed opinion that the wall construction is unlawful.

** In June of 2002, the Israeli army began building a wall running within West Bank territory on all sides, and around Jerusalem…. The wall has been justified by the Israeli government as a “defensive measure, designed to block the passage of terrorists, weapons and explosives into the State of Israel.” Almost 90% of the wall is being constructed well within the Green Line [and will] encompass some 60 illegal Israeli settlements on Palestinian territory. According to the UN Office for the Coordination of Humanitarian Affairs in the Occupied Palestinian Territories, when the wall is complete, it will cut off 13.5% (191,000 acres) of the West Bank, the most fertile land in Palestinian territory, yielding on average $900,000 per square kilometer [and] will trap some 189,000 Palestinians … between the wall and the Green Line, or in enclaves encircled by the wall. More than 400,000 Palestinians live immediately east of the Wall and will inevitably “need to cross it to access farmland, jobs or health services.”

** …a limited number of gates have been built into the wall structure. Israeli authorities control the gates and monitor movement through the gates with a heavily restricted permit system. In order to gain access through one of the gates, a so-called ‘special permit’ is required. A permit is only valid for one specific gate. The permit requirements apply to the majority of Palestinians, but are not applicable to Israeli citizens, tourists with valid visas, or Jews, among others. Thus, Palestinian farmers need a permit to access their land, students require permits to go to school, business owners to their offices, medical staff to assist the sick or wounded, etc. As of this writing, there are 46 constructed gates; only 19 of these are, however, open to permit holders, and these only during restricted hours. The remaining 27 gates are closed.

** The ICJ will need to address the scope of its authority to render an opinion on the matter referred to it, as Israel devoted the bulk of its written statement to challenging the Court’s jurisdiction over the issues raised in the request. …The ICJ accepted the request for an advisory opinion and initiated proceedings. Over a period of two months, States were allowed to submit written statements to the Court in response to the request. Among others Israel, Palestine, the United States, the Arab League, Russia and the European Union filed written statements…. Israel, the United States and the European Union have argued that the ICJ either lacked jurisdiction to render an advisory opinion, or that it was not appropriate to render an opinion in this matter. The main jurisdictional arguments are discussed [in the paper, extracts below].

** Whether the ICJ actually renders the opinion sought is governed by the language of Article 65.1 of the Statute of the ICJ, which states that the Court “…may give an advisory opinion on any legal question…” The ICJ has addressed the scope of this language numerous times, and has thus far refused to find that it does not have authority to interpret any legal question posed by either the Security Council or the General Assembly.

** Israel also challenged the ICJ’s competence over the matter by claiming that the ICJ will have to rely on second-hand sources, and that the Court would consequently have to speculate about essential and complex facts of the case. The Palestinian statement pointed out that Israel itself abstained from submitting any information on the merits of the case, and failed to present any oral statements on its own behalf, arguing that the only facts missing were those Israel might have submitted.

** Even in a contentious case, the ICJ declined to allow such an argument to prevent exercise of its jurisdiction. In the Military and Paramilitary Activities (Nicaragua v. United States) contentious case, after having appeared and argued its position on the merits, the United States decided not to make further appearance in a later stage, arguing that it no longer consented to ICJ jurisdiction over the case. The United States claimed that because it was no longer present and submitting facts relevant to its contentions, the Court could not decide the case; nevertheless, the ICJ ruled on the merits.

** Israel contends that any response to the advisory opinion request would undercut the Roadmap initiative which the Security Council has endorsed. The United States has echoed this position, claiming that “the giving of an advisory opinion in this matter risks undermining the peace process and politicizing the Court.” The United States argues that: “[B]ecause of the manner in which this proceeding has arisen, including the formulation of the question….” “[i]t is not clear what issues might be engaged in this case.” This argument points out that one of the issues the Court will have to consider is the security situation, which is best dealt with through the political process. The Road Map, presented as a comprehensive political plan to deal with the Palestinian-Israeli conflict, includes necessary arrangements for the security problems.

** Israel’s security argument is undermined by its construction of the wall on territory outside its own recognized boundaries. The Road Map, whatever solution it might provide for a final settlement, provides little guidance on the legality or consequences of the wall. An advisory opinion by the ICJ, thus, neither compromises the security of the area, nor the Road Map.

** The arguments presented in support of the request to the ICJ focus on violations of international humanitarian law, as well as violations of human rights law and the more general public international law of nations. Although acknowledging that Israel has a right to take measures to protect legitimate security interests, the participants point out that such measures must comply with requirements of ‘strict military necessity,’ and must conform to international humanitarian law and human rights law. The Palestinian statement details the harms caused to Palestinians by the wall, including the extensive destruction of Palestinian homes and other property; infringements of the requirements of freedom of movement; violations of rights to education, work, health care, and a basic standard of living; and violations of the rights against arbitrary interference of home and residence. Palestinian arguments are that Israeli actions in constructing the wall and confiscating Palestinian property are not necessary or proportionate, but amount to grave breaches of the Fourth Geneva Convention, illegally effect transfer of the occupied population, and give rise to criminal liability on the part of the Israeli government. Moreover, Palestine and the Arab states claim that Israel’s motives in constructing the wall are to annex more territory and to deny Palestinian sovereignty and self-determination.

** Israel, on the other hand, refutes the applicability of most of the international humanitarian law and human rights provisions…

** Further, Israel denies the claims that it is permanently transferring ownership of land by expropriating Palestinian property. The state claims that it has put a process in place by which any injured party can petition the Israeli Supreme Court, and can obtain compensation. Israel also insists that it is not changing the residency status of any Palestinians affected by the wall, that it has a process for issuing permits to benefit those residing in Closed Areas, and thus is not preventing legitimate movement of the Palestinian civilian population.

** Since an opinion on the merits is probable, it remains to examine the possible range of options the Court has before it, and on what issues it is most likely to rule. These options are examined below, in order of the most narrow to the most expansive, with a brief discussion of the Court’s likely concerns in deciding among its options.

** The main argument made by those supporting the Advisory Request concerned the path of the wall: all agreed that if the wall were built solely within Israeli boundaries, there would be no challenge to its legality. Thus, should the Court wish to find the most narrow grounds for its opinion, it could address only the route of the wall, to determine the consequences of Israel’s construction outside the boundaries of the 1949 Armistice Agreement. The Court could engage in an analysis of whether the 1949 Armistice Lines are settled under international law, or remain disputed. If the former, the ICJ will likely confirm the UN General Assembly’s claim that Israel’s construction of the wall in its current route is illegal; if the latter, the legality may be less clear, and the Court may engage in further inquiry on the issue. However, the Court does not need to determine precisely what the Israeli borders are as a matter of international law in order to affirm the illegality of the wall’s current path.

** If the ICJ addresses the applicability of international humanitarian law in the Occupied Territories it will most likely find both the Hague Regulations of 1907 and the 4th Geneva Convention of 1949 clearly applicable in the Occupied Territories – both because Israel has agreed that certain provisions of those treaties apply to the territories in some circumstances, and because they have become customary norms and thus universally applicable. Under the Hague Regulations and the 4th Geneva Convention, the status of the West Bank, Gaza and East Jerusalem as ‘occupied,’ is a matter of factual inquiry, and the requisite facts exist to establish Israel as ‘occupier’ and the Palestinians as ‘occupied,’ or ‘protected persons.’ From this conclusion, the ICJ will examine the main contention put forth by Israel, which is that the wall is necessary protection against suicide bombers entering Israel from the occupied territories, and the Palestinian position that the wall’s location is not calculated to prevent suicide bombers as it is not constructed on the Israeli side of the 1949 armistice line. Israel’s argument is that if humanitarian or human rights law is applicable, it has the right to protect its people and territory under the principle of “necessity.” The ICJ has recently decided a case examining the defense of “necessity.” In the Gabcikovo-Nagymaros Project Case, the ICJ found that the necessity defense was unavailable even if the state claiming the defense did not cause the danger to itself. Whether or not the state ‘contributed’ to the danger is the test, and as long as the state’s actions were a factor in causing the danger, it cannot claim the defense of ‘necessity.’

** The above conclusions alone are sufficient for the Court to address the basic question put forward by the advisory opinion request and confirm, without more, that Israel’s construction of the wall in the location it has been constructed, is a violation of international law. Such conclusion will logically lead to the implication that everything related to the wall’s construction—land expropriation, dispossession, denial of international humanitarian law and human rights obligations—will consequently be prohibited as also illegal, without the necessity of examining precisely which actions constitute further violations of law.

** Moreover, the Court is most likely, in a dispute as longstanding, contentious and politically charged as this, to seek a relatively narrow ground for its opinion. Israel and its supporters have strenuously argued that this it is inappropriate for the Court to render an opinion in this situation, which should only be decided through political negotiations. Thus, the Court will be mindful of charting a fine line between what is likely to be perceived as an overly political opinion from a clearly legal one, and is unlikely to reach issues that are not absolutely essential to a narrow decision.

Nevertheless, the Court will be aware of the ramifications of an advisory opinion in this case, with the clear precedent of its advisory and contentious decisions in the South West Africa Cases. In the ongoing tension between the UN and South Africa concerning the Namibia (South West Africa) mandates, the ICJ gave a series of decisions and advisory opinions…. Commentators claim that the ICJ opinions and rulings in the South Africa cases were important factors in the establishment of sanctions against South Africa.

The ICJ’s advisory opinions are not binding. However, there is no doubt that what the Court opines in its response to the request for an opinion on the wall will have far-reaching implications for the ongoing Israeli-Palestinian conflict, no matter how narrowly the Court frames its decision.