1 Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory, Opinion of 9 July 2004, 2004 I.C.J. See this issue of the Israel Law Review: “Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory” (2005) 38(1–2) Is.L.R. 17 (hereinafter: “ICJ Opinion or Wall Opinion”).
2 I use the term “wall” throughout this comment, simply employing the Court's terminology, which in turn follows that used by the UNGA in its request; there seems little point in debating the adequacy of terms that are rife with political imagery but devoid of real significance. Moreover, it is noteworthy that although the Court stated that neither term is more accurate “in the physical sense” (Ibid., at para. 67), it acknowledged that only 5% of the infrastructure addressed by it consisted of a concrete wall (Ibid., at para. 82).
3 For a survey of judicial “issue-avoidance” techniques that might have been applied by the Court, see Davey, William, “Has the WTO Dispute Settlement System Exceeded its Authority? A Consideration of Deference Shown by the System to Member Government Decisions and its Use of Issue-Avoidance Techniques” (2001) 4(1) J. Int. Econ. L. 79.
4 ICJ Opinion, supra n. 1, at para. 163(1).
6 Conceptually, aesthetically, environmentally, and of course in its human impact, the wall is hardly a benign creation; none of these make it illegal, but neither do they refute its necessity or effectiveness in the prevention of despicable acts of arbitrary deadly violence.
7 H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) P.D. 807. See this issue of the Israel Law Review for an English translation of this decision: “H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) P.D. 807” (2005) 38 (1–2) Is.L.R. 83.
8 Israel's choice, however, was certainly substantially affected by the Court's decision to unify its decisions on preliminary issues and on the merits; see section IV infra.
9 UNGA Res. ES-10/13 of October 27, 2003.
10 By 150 votes in favour, 6 votes against, and 10 abstentions, on July 20, 2004.
13 See http://www.un.org/apps/sg/sgstats.asp?nid=1032 (emphasis added, connoting no such emphasis on the part of the speaker).
14 Only (for the sake of disclosure) as one who has been within earshot or less of at least a dozen ‘so-called terrorist attacks by Palestinian suicide bombers’ (see ICJ Opinion, separate opinion of Judge Owada, para. 31 available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Owada.htm.; lives, commutes and works a stone's throw from the wall; is thus purportedly protected by it; and whose family has lived in ‘Palestine’ since the early 1800s. These realities undoubtedly influence my personal view of the wall, although in a truly indeterminate and scattered fashion - they may have created bias, but I myself cannot tell in which direction; such is the complexity of the conflict that the ICJ regarded quite technically as a mere “circumstance” (para. 54) to be taken “carefully into account” (Ibid.).
15 Advisory opinions relating to pending disputes of a bilateral nature are not a new phenomenon (i.e., Eastern Carelia, 1923 P.C.I.J. (Ser. B), No. 5 (“Eastern Carelia”); Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (“Namibia”); and Western Sahara, 1975 I.C.J. 25) and are indeed foreshadowed by the ICJ Rules (see article 102(3)). My criticism is that the ICJ Opinion of the Wall went a step further, disregarding the due process implications of the quasi-contentiousness of the case in the way it exercised its jurisdiction; see section IV infra.
16 See Keohane, Robert O. and Nye, Joseph S., “The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy”, in Porter, R.B. et al. , eds. Efficiency, Equity, Legitimacy: The Multilateral Trading System at the Millennium (Washington, DC, Brookings Institute Press, 2001) 264.
17 See Broude, Tomer, International Governance in the World Trade Organization: Judicial Boundaries and Political Capitulation (London, Cameron, May, 2004) sec. III.C.2.
18 Franck, Thomas M., The Power of Legitimacy Among Nations (Oxford, Oxford University Press, 1990), at 24 (emphasis added).
19 See Miyaoka, Isao, “State Compliance with International Legitimate Norms: Wildlife Preservationist Pressures on Japanese Fishing”, paper presented at the 41st Annual Convention of the International Studies Association, Los Angeles, CA, March 14-18, 2000, online, http://www.ciaonet.org/isa/mii01/ (last accessed: September 23, 2004)(emphasis added).
20 Items 3.B. and 3.C. of the findings of the Wall Opinion are unambiguously addressed towards Israel and the obligations it has been found to have incurred, ICJ Opinion, supra n. 1, at para. 63.
21 Since advisory opinions are requested by UN organs and not by states, they have no express binding effect on states. They do, nevertheless, have “all the moral consequences” of a ruling by the principal judicial organ of the UN (See Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase - advisory opinion of 30 March, 1950  I.C.J. Rep. 65 (“Peace Treaties”)), and carry great “persuasive character and moral authority” (See SirFitzmaurice, Gerald, The Law and Procedure of the International Court of Justice (Cambridge, Grotius Publications Ltd., 1986) Vol. I, at 124).
22 Peace Treaties, supra n. 21, at 19.
23 Item 3.D., findings of the ICJ Opinion, supra n. 1, at para. 64.
25 See Peace Treaties, supra n. 21 at 19.
26 Insofar as this methodological separation is possible; procedural ‘inputs’ have a role in determining substantive ‘outputs’; institutional arrangements may be regarded as either ‘inputs’ or ‘outputs’; and the desired ‘outputs’ may influence the way ‘inputs’ are designed and managed.
27 See Keohane and Nye, supra n. 16.
28 According to Franck, ‘adherence’ - the connection between the rule and a ‘hierarchy of secondary rules’ that ‘define how rules are to be made, interpreted and applied’ – is one of four indicators of legitimacy (see Franck supra n. 18, at 184).
29 See Keohane and Nye supra n. 16.
30 See relevant chapters in Rosenne, Shabtai, The Law and Practice of the International Court 1920-1996 (The Hague, Boston, London. Martinus Nijhoff Publishers, 3rd ed., 1997).
32 On inter-judicial bargaining in the production of the Wall Opinion, see Ian Scobbie, , “Smoke, Mirrors and Killer Whales: The International Court's Opinion on the Israeli Barrier Wall” (2004) 5(9) German Law Journal 1107.
34 See para. 13 of the dispositif, following Legality of the Threat or Use of Nuclear Weapons, advisory opinion, 1996 (I) I.C.J. (“Use of Nuclear Weapons”).
35 The ICJ found, quite correctly, that the question posed, although abstracted, could be reformulated as a legal question (para. 40); and that its political aspects did not deprive it of its character as a ‘legal question’ (para. 41). After Use of Nuclear Weapons, there would be little room to claim otherwise.
36 See ICJ Opinion, supra n. 1, at para. 16 and sources cited there.
38 But had, in one case, moved the ICJ's predecessor, the Permanent Court of International Justice (PCIJ) (Eastern Carelia, supra n. 15).
39 ICJ Opinion Supra n. 1, at para. 45.
40 These arguments are: contentious character of the case (paras. 46-50); impediment to political solution (paras. 51-54); insufficient facts (paras. 55-58); lack of useful purpose (paras. 59-62); lack of good faith and “clean hands” (paras. 63-64). Ibid.
41 See Franck, supra n. 18.
42 ICJ Opinion, Supra n. 1, at paras. 49-50.
43 See Peace Treaties, supra n. 21, at 71.
44 I refer to the gradual expansion of the contentious jurisdiction of the ICJ and the wearing down of the consent requirement in other international judicial bodies (see, in relevant part, Lauterpacht, Elihu, Aspects of the Administration of International Justice (Hersch Lauterpacht Memorial Lectures) (Cambridge, Cambridge University Press, 1991)), as evident, e.g., in the ‘automaticity’ of World Trade Organization jurisdiction; and the advent of “supra-compulsory” jurisdiction in the International Criminal Court (on ‘supra-compulsory’ jurisdiction, see Broude supra n. 17, Chapter VI.
45 The same could not be said of the Court's legitimative efforts of its decisions against Israel on the merits, that are virtually non-existent; for some discussion, see in this issue: Shany, Yuval, “Capacities and Inadequacies: A Look at the Two Separation Barrier Cases” (2005) 38 (1–2) Is.L.R. 230.
46 In the UNGA or, subject to limitations, another organ of the UN and specialized agencies (see Article 96 UN Charter).
47 It is however noteworthy that the request for the opinion on the wall was supported by only 90 out of 172 Members.
48 But see Gerald M. Adler, “Separation Barrier, Closures and Checkpoints in ‘Occupied Palestinian Territories’ and Postscript to the International Court of Justice Decision on the Barrier”, Concord Research for the Interplay of International Norms and Israeli Law, July 13, 2004 (online: http://www2.colman.ac.il/law/concord/commentaries/NON%20PARLT%20Separation%20Barrier%202.8.04.doc>): “By its decision, the International Court of Justice has done irreparable harm, to its reputation as an independent judicial institution and to the advancement of international law as an acceptable means of conflict resolution”.
50 This is a distinction alluded to by Judge Owada in his separate opinion, supra n. 14, at para. 10: “it is my view that the existence of a bilateral dispute should be a factor to be taken into account by the Court in determining the extent to which, and the manner in which, the Court should exercise jurisdiction in such advisory proceedings”; and in the ever fresh work of Pomerance, Michla, The Advisory Function of the International Court in the League and U.N. Era (Maryland, John Hopkins University Press, 1973), and more recently. “The Advisory Role of the International Court of Justice and its ‘Judicial Character’: Past and Future Prisms” in Sam Muller, et al. , eds. The International Court of Justice: Its Future Role After Fifty Years, (Hague, Martinus Nijhoff and Leiden J. Int. L, 1997).
51 ICJ Opinion, supra n. 1, at paras. 46 et seq.
53 Ibid., at para. 49 (emphasis added).
54 This is presumably Judge Higgins' meaning in referring to “a denial of any dispute save as between Israel and the United Nations”; see separate opinion of Judge Higgins, supra n. 31, at para. 4.
55 It is not difficult to identify significant factual gaps and inaccuracies in the Court's narrative, allowing the argument the Court was unfair towards Israel. However, I would attach these curious omissions and stylizations, that at least in part, to the Court's self-imposed need to construct the question of Palestine as a multilateral issue, downplaying the bilateral aspect, in order to maintain the legitimacy of its decisions on jurisdiction and propriety. For example, according to the Court, after the State of Israel was established in May 1948, “armed conflict then broke out between Israel and a number of Arab States” (ICJ Opinion, supra n. 1, at para. 71; emphasis added), neglecting to mention that this conflict started as a large scale attack on Israel by seven Arab armies. To be sure in the ICJ Opinion, supra n. 1, at para. 73, the 1967 conflict also simply materializes in the text, with no reference to its initiation by Israel. In this sterilized narrative, war is something that happens, like an accident; it is not caused by or attributed to any of the parties, their interests and objectives. As a result, in this context no reference was made by the Court to Jordan's prior occupation and annexation of the West Bank (see some criticism of this by Judge Kooijmans, paras. 8-10 of his Separate opinion). Yet the Court had no choice but to address this fact in its discussion of the application of the Fourth Geneva Convention (ICJ Opinion, supra n. 1, at paras. 90-93), because Israel had raised it specifically as part of its arguments. Back in the general narrative, the Court mentions, in passing, the signing of “a number of agreements” between Israel and the Palestine Liberation Organization (PLO), imposing “various obligations” on each party; but it then mentions only the Israeli commitment to transfer authority to the Palestinians. The Palestinian obligations, not the least in the areas of security and non-violence, are seemingly consigned to the dustbin of history, while Israel did not fully complete its obligations “as a result of subsequent events”, that remain untold. This omission conforms with the Court's general disregard of Palestinian terror attacks, their influence upon the resolution of the conflict, and particularly, their linkage to the construction of the wall. Would the legal basis of the decision have suffered if some gratuitous yet significant condemnation were made by the Court towards the terror phenomenon? Certainly not; it would only have enhanced its “compliance pull” towards Israel. Moreover, the blurring by the Court of the Palestinian role in the conflict cuts out Israel's counterpart or adversary and so serves the Court's overarching depiction (or imagination) of the issue as a multilateral, rather than bilateral, issue.
56 ICJ Opinion, supra n. 1, at para. 109, third part.
57 Ibid., at para 112, last sentence.
60 The Court's term in ibid., at para. 141.
61 As noted in Judge Buergenthal's dissent on the Court's decision to hear the Wall request, supra n. 33, at para. 3: “The nature of these cross-Green Line attacks and their impact on Israel and its population are never really seriously examined by the Court…”.
62 For a related critique of the Court's position on Israel's right to self-defense, see separate opinion of Judge Higgins, supra n. 31, at paras. 33-34.
63 Ibid., at paras. 14-17.
66 This result was not unforeseeable; see paras. 10-11 of Judge Buergenthal's dissenting opinion, available at http://www.icj-cij.org/icjwww/idocket/imwp/imwp_iorder_20040130_DissOpinionJudgeBuergenthal.PDF. in relation to the question of El-Araby's participation. Judge Buergenthal also couched his opinion in terms of ‘input’ legitimacy: “Judicial ethics are not matters strictly of hard and fast rules – 1 doubt that they can ever be exhaustively defined – they are matters of perception and of sensibility of appearances that courts must continuously keep in mind to preserve their legitimacy” (para. 10).
67 Convention (Article 68 ICJ Statute in conjunction with Article 31 ICJ Statute and Article 102(3) ICJ Rules (previously Article 83 ICJ Rules)) and precedent (Morocco, but not Mauritania, succeeded in its request to appoint an ad hoc judge in Western Sahara) hold that that the appointment of ad hoc judges may be authorized by the Court in an advisory proceeding requested upon a legal question actually pending between two or more states; and see also South Africa's unsuccessful request for an ad hoc judge in Namibia, p. 12, and dissenting opinions there.
68 Although in advisory proceedings the grounds for requesting an ad hoc judge and the denial of propriety both stem from the common circumstance of the existence of a concurrent bilateral dispute, and there is no technical contradiction between the two motions (as noted by the Court in Western Sahara, the appointment or refusal to appoint an ad hoc judge is without prejudice to the questions of competence and propriety), a request to appoint a judge may signal a concession to jurisdiction. In Namibia, South Africa pursued this line and failed on both counts.
69 Clearly, the Wall Court's findings would not have been significantly different had Judge El-Araby been precluded from participation.
70 This is not the only set of inconsistencies in this regard. In approving Judge El-Araby's participation, the Court construed the subject matter of the case very narrowly, as relating only to the construction of the wall. Moreover, El-Araby's Separate opinion, like the Wall opinion itself, inevitably deals with a much broader range of legal questions, such as the status of the occupied territories, the applicability of Humanitarian Law and the right to Self-Determination.
71 ICJ Opinion, supra n. 1, at para 56, referring to Eastern Carelia and quoting Western Sahara, para 56 (emphasis added).
72 Literally, according to Buergenthal the Court must have before it or seek to ascertain “all relevant facts” (para. 3, emphasis added, quoted in full infra).
73 However, Israel's default was itself the result of a tactical disadvantage caused by the Court's refusal to establish a separate preliminary procedure of jurisdiction in the case; see supra text preceding note 64.
74 See Buergenthal, separate opinion, supra 33, at para. 10.
75 In this respect the Court did not heed its own past caution: “The vigilance which the court can exercise when aided by the presence of both parties to the proceedings has a counterpart in the special care it has to devote to the proper administration of justice in a case in which only one party is present” (Military and Paramilitary Activities in and Against Nicaragua, 1986 I.C.J. 14, 26); and also, in Nuclear Tests (Australia v. France), 1974 I.C.J. 263, at para. 31: “it is especially incumbent upon the Court to satisfy itself that it is in possession of all the available facts”, where one party is not appearing. This special care should have applied a fortiori in an advisory proceeding in which the party with best access to information has not argued on the merits (accord, separate opinion of Judge Owada, supra n. 14, at para. 21).
76 ICJ Opinion, supra n. 1, at para. 3.
77 Ibid., at paras. 63-64.
78 Ibid., at para 47, after Western Sahara 32.
80 This conclusion is not free from doubts. While the Wall effectively gave voice to multilateral consternation at violations of international law associated with the wall constructed by Israel, it declined to address and send out a guiding signal to other states, especially the United States, regarding just how the war on terror may be effectively conducted within legal constraints of law, failing to address one of the central challenges of international law in the first years of the 21st century.
81 Some of these points may be thought of as ‘inputs’; but institutionally, they are ‘outputs’ representing elements of the advisory competence of the Court.
82 Palestine and the Palestinian people. The Court also repeatedly insists that the initiator of proceedings is UNGA and not Palestine, and so sanctions a curtain of agency that allows a non-state party to get the (judicial) ball rolling through the UNGA, even though it has no formal right to do so.
83 Indeed, the Court's findings in Namibia (supra n. 15) also included obligations incumbent upon states, albeit under the qualifying chapeau whereby the Court is to that extent only “of the opinion”, a rhetorical buffer which is absent in the wording of the findings in the Wall (the Western Sahara opinion, supra n. 15, did not even go that far). Moreover, in Namibia the Court went so far as to place states under negative obligations on the legal level (essentially, to refrain from acts of implying recognition of South Africa's acts); in contrast, the Wall Court found positive obligations under the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August, 1949 (Para. 163(3)D., second sentence, and imposed a ‘soft’ but nevertheless positive obligation upon the UN and its organs to take action to bring the illegal situation to an end (Para. 163(3)E.). The subtly innovative character of the Court's findings is perhaps to be found in its introduction of the language of international responsibility into its analysis, absent in previous advisory opinions that related to concrete bilateral disputes of a territorial nature (see paras. 148 et seq. of the Wall opinion). The inconsistency of the Court's approach to the issue as exclusively multilateral is thus further complexified, blending compulsory-styled jurisdiction, advisory procedure and contentious discussion on the merits.
84 See Broude, supra n. 17, ch. 5. The only attribute of post-traditional international adjudication not present in the Wall is the principle of direct effect. The term ‘supra-national’ may also come to mind here, although this term is notoriously imprecise.
85 As already noted, previous advisory opinions have edged closer to “compulsorizing” the advisory function and to giving indirect representation to non-state entities, and also to making the nature of advisory opinion findings obligatory in nature. Indeed, the roots of the entire gap between ‘input’ and ‘output’ legitimacy here identified in the Wall, can be traced in the Namibia and Western Sahara advisory opinions (supra n. 15), but there are significant distinctions between these cases (e.g., the mandate context and existence of previous ICJ jurisprudence in Namibia; the completely different type of question posed to the ICJ in Western Sahara) that make the gap tolerable in the past jurisprudence, yet troubling in the Wall.
86 The European Court of Justice is the archetypical post-traditional international judicial body, but other regional systems, such as the dispute settlement functions of the North American Free Trade Agreement (NAFTA) display post-traditional characteristics.
87 E.g., the WTO dispute settlement system and the International Criminal Court, both of which demonstrate post-traditional elements.
88 This raises a contrary legitimacy problem, relating to the separation of the judiciary from political decision-making. In other circumstances, the Court would perhaps have considered declining to give the advisory opinion on the grounds that the UNGA had already pronounced on the matter. The gains made by the Court in its own modernization were presumably considered to outweigh the costs associated with a degree of loss of judicial independence, which may be corrected in the future.
89 I refer specifically to the criticism of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Of course, this criticism has been tiresomely used for conservative political ends; but its factual basis cannot be disregarded. See, e.g., Roberts, P.C. and Stratton, L.M., “The Brown Decision”, in The New Color Line: How Quotas and Privilege Destroy Democracy (Washington, DC: Regnery Publishing, 1995) at 29et seq., describing the “conspiracy” (more properly termed as ex parte interaction) between Justice Felix Frankfurter and Phillip Elman, a former clerk to Frankfurter and then on the Solicitor-General's staff, building upon Phillip Elman (interviewed by Silber, N.), “The Solicitor Genera's Office, Justice Frankfurter and Civil Rights Litigation, 1946-1960: an Oral History” (1987) 100 Harv. L. Rev. 817. “In the judicial equivalent of insider trading, Frankfurter and Elman frequently discussed Brown by telephone and in person. Elman had used confidential information from Frankfurter to shape the Truman administration's Brown brief to influence the Justices' views more effectively”. Roberts and Stratum's concluding paragraph begins with the words “despicable means cannot produce good outcomes.”
90 See Beit Sourik, supra n. 8. A detailed discussion of this ruling would far transcend the scope of this comment. Suffice it to say that the where the ICJ entirely refused Israel the benefit of military necessity in justification of the wall, the Israeli High Court of Justice, ruling in a petition by Palestinians affected by the wall with regard to a forty kilometer stretch of it, sanctioned the military necessity underlying the wall, but found that the route that it follows cause harm that is disproportional to its military advantage. This opens the door to Israel's removal of the most offensive elements of the wall, while preserving its security interests.
91 For a succinct depiction of the difference between the constituencies of the ICJ and the Israeli High Court of Justice, and the effect of these upon there respective judgments, see Shany, supra n. 45.
92 The more accepted meaning of this phrase relates to the guidance a court seeks in straying from precedent: between truth and jurisprudential constancy, choose truth; between one truth and another, choose the one that is more constant (see Justice Zmorah, President of the Israeli Supreme Court in C.A. 376/46 Rosenbaum v. Rosenbaum 2 P.D. 235, 253, 254; and Justice Barak, President of the Israeli Supreme Court in FCA 7048/97 Anonymous v. Minister of Defense 54(1) P.D. 721, 744. I refer here to a narrower significance that applies to the relation between procedural correctness and substantive justice; see, e.g., Justice Solberg of the Jerusalem Peace Court, in C.C. 4582/03 Yediot Communications v. Prof. Moshe Zimmerman (unpublished decision) (discussing the introduction of new evidence, and the relation between the pursuit of justice and the finality of proceedings).
93 Swift, Jonathon, Gulliver's Travels (Ware, Wordsworth Classics, 1992; original ed., 1726), part I, ch. VI, 41.