Resort to the Court presupposes a disposition to depoliticize the issues; when this precondition is not attained on both sides of the fence, the Court's Advisory Opinions are bound to be ineffective. The Opinions will become part and parcel of the political contest and share in its outcome.

[Leo Gross]

It would make a mockery of the independence of the Court if it could never “reach conclusions at variance with the conclusions stated by the General Assembly”. … It would also render the Court largely useless as an organ for giving legal advice to the Assembly.

[D.H.N. Johnson]

There are some worrying signs that, far from developing traditional legal techniques in a way acceptable to old and new States, the Court may depart radically from legal patterns accepted in the West in favour of outright politicization of the Court.

[Lyndel V. Prott]

In the present case, worrisome trends that have been infecting the ICJ-General Assembly nexus peaked more overtly and ominously than ever before, recalling earlier fears that the Court's advisory pronouncements would be either ineffective political utterances or ex parte quasi-compulsory judgments rendered without the consent of a state principally concerned. The manner in which the JCJ's advisory function was exercised raises grave doubts regarding the “judicial” nature of that function, and more generally, the future role of the Court in clarifying the law and strengthening world order in the age of the global terrorist scourge.

Employing inapt analogies and formalistic, formulaic, and occasionally inconsistent reasoning, the Court evinced an unjudicial eagerness to furnish the General Assembly with the imprimatur it sought for its pre-set conclusions. The Court adopted a consistently unevenhanded posture that manifested itself, inter alia, in its embracing the assumptions and nomenclature of the Assembly resolution; ignoring the context of ongoing terrorism; minimizing the status of Israel as an objecting quasi-litigant while magnifying the role and rights of the Assembly; upholding questionable Assembly practices; presenting a sanitized and skewed version of the crucial factual and legal contexts; embracing a simplistic and Manichean view of the rights and obligations of the protagonists in conflicts bearing on self-determination; and unjustifiably restricting the Charter-affirmed inherent right of self-defense. In all this, it faithfully mirrored the perspective of the Assembly and proved itself, more patently than ever before, to be a Court of “UN Law” rather than of consensual international law. And to the extent that its “UN Law” perspective continues to spill over from the advisory to the contentious sphere, the process of “undeifying” the Court may gather strength.

This note deals with some of the procedural and substantive issues raised by the Legal Opinion rendered by International Court of Justice on the legality of the separation barrier. In the note it is argued that the motivations behind the General Assembly's request where political and not legal. It is contended that he partiality of the choice of the dossiers' material as submitted, issues relevant to propriety and the judicial character of the Court, should have led it to decline to give the requested opinion. The note is critical on the participation of Judge Elaraby, which the note argues affects the fairness and impartiality of the proceedings and affect the value of the Advisory Opinion. Israel did not consent to the exercise of jurisdiction by the Court. The problems inherent in the lack of relevant factual basis and in the fact-finding function of the Court, its total disregard of Israel's needs to protect its citizens against Palestinian terrorism, and the categorical and unmotivated rejection of Israel's security claims, led to an unbalanced and unjust result. Basic humanitarian law principles relating to the protection of civilians and international human rights are disregarded by the Court when it comes to the right to life of Israeli civilians and to their right to be protected against terror attacks. The note contends that the Court's denial of Israel's right to self-defense lacks legal and factual basis. The procedural and substantive deficiencies of the Advisory Opinion affect its value and persuasiveness.

This comment relates to a more universal aspect of the Wall opinion, asking whether the ICJ has promoted or undermined international law in its conduct, more particularly the legitimacy of the ICJ's advisory function. The comment argues that the Wall displays two conflicting tendencies in this respect. If one examines the opinion's procedural ‘inputs’ (even setting aside the issues of jurisdiction and propriety), the ICJ may have robbed the advisory procedure of some of its legitimacy by unfairly ignoring the case's contentious aspects on the procedural level. However, if one focuses on the opinion's ‘outputs’, it may have marked a significant, if imperfect, legitimate stage in the ongoing modernization of the ICJ, towards a supra-national, compulsory judiciary that allows a degree of effective access to non-state interests. Which of these evaluations will ultimately hold sway (or how they will weld together), remains to be seen.

The comment focuses on the construction of time in the normative regime of occupation. Beginning (in section 2) with a critique of the ICJ's reading of Article 6 of the Fourth Geneva Convention concerning the scope of applicability ratione temporis of the Convention in cases where the duration of an occupation lasts longer than one year, the comment proceeds (in section 3) to argue (a) that the gap between the working assumption informing Article 6 (of relatively short-term occupations) and reality (of prolonged occupations) defines a problem which the Court erroneously construed as a solution; (b) that the problem of prolonged occupation has allowed for the substitution of an indefinite for a temporary duration of an occupation, a move which defies the basic tenets of the normative regime of occupation; and (c) that a proper solution involves the construction of the notion of “reasonable time” into the Fourth Geneva Convention. The comment includes (in section 4) a proposal designed to minimize the temporary/indefinite blurring of boundaries in situations where an occupation has not ended within one year.

Comparison between the two decisions of the International Court of Justice and the Israeli Supreme Court on the legality of Israel's West Bank controversial separation barrier illustrates some of the inherent differences between national and international legal proceedings. The note critically assesses these differences and advocates a more comity based framework of cooperation between national and international courts. Specifically, the note argues that the fact-gathering and fact-analysis process demonstrated in the Hague Advisory Opinion is problematic, as were the Court's refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. At the same time, the failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and highlight the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each other's institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial.

This paper examines the authority of the Military Commander to requisition privately owned land for the construction of the Separation Barrier within the West Bank, which is held through a regime of belligerent occupation. The examination focuses on Article 52 of the Hague Regulations, which deals with the issue of requisitions in kind. Moreover, the relationship between Articles 23(g) and 52 of the Hague Regulations is discussed, in light of the ICJ's decision whereas Article 23(g) is irrelevant after the close of active hostilities. This paper argues that while Article 52 grants the Military Commander the authority for such requisitions, Israel must demonstrate in each specific case that there a specific duty of the army of occupation which gives rise to a specific need of the army of occupation, in accordance with Article 52. The relevant decisions of the International Court of Justice and the Israeli High Court of Justice (HCJ) are examined, especially the High Court of Justice's Beit Sourik judgments and the International Court of Justice's Legal Consequences case.

In Beit Sourik the Israeli High Court of Justice struck down most of the planned route for the security fence to be established north of Jerusalem. The Court ruled that the military commander did not properly balance the contribution of this route to the security of the State and the extent of the injury to the rights of the Palestinian inhabitants of the area. It was therefore ruled that this route did not comply with the requirement of proportionality in its strict sense. At the same time, the Court rejected the claim of the petitioners that the motive underlying the determination of the fence's route was a desire to establish a border (a political consideration) and not a security consideration.

This article criticizes the Court's line of reasoning. I argue that the Court erred in striking down the planned route of the security fence on the ground of not fulfilling the requirement of proportionality in the strict sense. The vague nature of this requirement may cause judicial decisions to assume a subjective character, thus violating the democratic principle according to which fundamental decisions should be determined by the people's elected representatives. Given the suspicious circumstances that had led to the determination of the fence's route, the Court should have applied a different kind of reasoning. Instead of balancing the State's security issues and the Palestinians rights, the Court should have carefully scrutinized whether the security purpose was authentic. Judicial review, based on these premises, increases governmental transparency and thus better complies with democratic principles.

This paper argues that the ICJ did not need to discuss the legality of the settlements in order to examine the legality of the fence. Following this argument, until the settlement issue is resolved, Israel has an obligation to protect the settlers. Thus, even those parts of the fence that are intended to protect settlements, legality does not depend on the legality of the settlements. Moreover, this article argues that the Court's analysis of the settlements' legality is unsatisfactory: its interpretation of Article 49, paragraph 6, of the Fourth 1949 Geneva Convention, deviates to a certain extent, from the meaning of the same terms used in other paragraphs of Article 49, and as such a more in depth analysis by the Court was required.

The present article analyzes the expected implications of the recent Advisory Opinion of the International Court of Justice on the legal status of East Jerusalem in accordance with international law. The Court stated that East Jerusalem is occupied territory and Israel is the occupying power in this territory. Generally, the Opinion lends support to the Palestinians' arguments and is likely to enhance their bargaining position in the future negotiations regarding the regime to be applied to East Jerusalem. Unlike the differential approach undertaken by the parties during the recent stage of negotiations (that suggested applying different legal regimes to the city's different areas), the Court's Opinion did not make distinction between the different parts of East Jerusalem. Analysis of these distinct approaches indicates that the differential approach (adopted during the recent negotiations)is more likely to enhance the prospects of attaining an agreed solution to the dispute over East Jerusalem. The Court's emphasis on the interests of third parties as well as the role of the UN tends to multilateralize the dispute between Israel and the Palestinians regarding the West Bank, including East Jerusalem. The impacts of possible multilateralization of the dispute over East Jerusalem on the prospects of achieving an agreed solution are not clear. In contrast to the Court's multilateral approach with regard to the general Israeli-Palestinian dispute, the analysis of Israel's obligation regarding access to the holy places is essentially premised on two bilateral treaties (the 1949 General Armistice Agreement and the 1994 Peace Treaty between Israel and Jordan). In light of the major importance of numerous holy places in other parts of the globe, a preferable legal analysis could have been founded on a reasonable interpretation of general international human rights instruments, particularly the 1966 Covenant on Civil and Political Rights.

This Article examines how the advisory opinion of the ICJ on the “Legal Consequences of Constructing a Wall in the Occupied Palestinian Territory” dealt with the status of the territory through which the separation barrier passed and the question of the status of the “Green Line” which delineates this territory.

Israel has accepted that the rules of belligerent occupation are to be applied to the territory, the Court however did not suffice itself with applying the laws of belligerent occupation but chose to follow current UN precedents in the use of the phrase occupied “Palestinian” territory. The Court does not attempt to resolve the dilemma of how the West Bank could be defined as occupied “Palestinian” territory when its status as occupied territory presumably derived from Israel's seizure of the Area from Jordan and a Palestinian State had never existed there, or anywhere.

Although the Court disclaimed any intention of determining boundaries, nevertheless the Court treats the Green Line as Israel s Eastern boundary notwithstanding that neither Israel nor any Arab State recognized it as such. By its decision, the Court apparently however has recognized Israel sovereignty West of the Green Line, including West Jerusalem, perhaps an outcome not foreseen by all who initiated the application to the Court.

This article compares the Hobbesian realist and Kantian idealist analyses of international law and organizations with respect to the UN General Assembly resolutions and the International Court of Justice (ICJ) advisory opinion on Israel's separation barrier. From the realist perspective, this case highlights the exploitation of moral claims in support of a particularist political agenda. In contrast, the idealist approach interprets the advisory opinion and resolutions as important normative expressions in the developing global system of governance based on universal human rights principles and treaty obligations.

The analysis begins with a detailed comparison of the ideological and intellectual foundations of these core approaches to international law and organizations, the evolution of this debate in the post Cold War international system, and the impact on protracted ethno-national conflicts. This provides the basis for examining the impact of both schools in the context of the Arab-Israeli conflict. The specific case of the UN and ICJ's involvement in the question of Israel's separation barrier is then analyzed in detail from both the realist and idealist perspectives.

The implications of this debate are of major importance, not only with respect to the specific challenges posed by terrorism and the necessary responses, but also in the wider context of the crisis in the international system at the beginning of the 21st century. The analysis concludes by noting the degree to which this case illustrates a wider process in which international legal principles are manipulated in a manner that contributes to conflict and justification of violence, conforming to the realist interpretation. While still pursuing idealist objectives, wishful thinking cannot conceal the abuse ofuniversalist claims of morality in the pursuit of war by other means.

In this paper, I address the relevance of the normative dimension of international relations against the background of the Advisory Opinion of the International Court of Justice of July 9, 2004, with reference to the legality of the security barrier/fence being erected by the Israeli government since March of 2002. I examine different approaches to the study of norms in international relations, focusing upon the Grotian approach, which represents a middle ground between the extreme Hobbesian (Realist) and Kantian (idealist) traditions of international relations. According to the Grotian approach, international norms affect the foreign policy of individual countries through their institutionalization in the international society, usually through multilateral instruments of international law. In this sense, both the ruling of the Israeli Supreme Court of June 30, 2004, and the Advisory Opinion of the ICJ of July 9, 2004, represent and reflect those instruments. The International Court of Justice is the major legal institution of the United Nations, which is the embodiment of our international society. Hence, even if its ruling is considered biased or distorted (by Israel), it still carries an important normative and political baggage, by underlining paramount norms such as self-determination and protection of human rights.

The essay places the ICJ opinion in a broader legal and political context and argues that the failure to distinguish between democratic and non-democratic regimes characterizing the ICJ advisory opinion reflects broader trends with potentially ruinous consequences for the enterprise of human rights promotion itself. The ICJ opinion's willful ignoring of Israel's democratic character yielded a tendentious and inconsistent ruling. By contrast the Israel High Court of Justice's decision invalidating portions of Israel's security wall reflects a healthy understanding of a democracy's needs and limitations, as reflected in that court's proportionality standard of review. The ICJ willingly blurred crucial distinctions between democratic regimes that genuinely adhere, however imperfectly, to principles of human rights in their own governance, and those states and actors that do not, a distinction made all the more imperative by the events of September 11.

The judicialization of human rights in the post-Cold War era takes place against the background of a tensile relationship between human rights advocacy and democracy promotion during the Cold War. While human rights represent an essentially legal idea, democracy a political idea. In closing, the essay lays out one basic, hopefully workable, conceptual division of labor between human rights and democracy as complementary elements of a broader project of human dignity, in which human rights represents a “thin” universal conception of human dignity, while democracy offers a process whereby that conception can be “thickened” in various political, social and cultural contexts around the globe.

The growing impact of terrorist acts in the past few years has lead to dramatic changes in the internal laws of the growing number of States that suffer from terrorism, but has also lead to various attempts to adapt international law - more specifically, the International Laws of War - to the new situation or threat, as many perceive it. The Laws of War, like most areas of Public International Law, deal with the relations between nations, while hardly dealing with non-governmental entities like terrorist organisations or the individual terrorist, thereby creating an apparent legal “loophole”. One of the solutions found by States in order to deal, legally, with terrorists, was by defining them “unlawful combatants”.

This essay tries to examine the development of the term “unlawful combatant”, by examining some complications that might occur from the use of the term “unlawful combatant” as an intermediate, new status in international law. By using it as a new status. States try to exclude terrorists from finding protection under the Geneva Conventions, which are intended to safeguard various individuals during armed conflicts. After examining the term “unlawful combatant”, both from an historical and legal aspect, this essay will attempt to show that the existing Laws of War, which acknowledge only two statuses – the ‘civilian’ and the ‘combatant’ – provide a satisfactory solution to the problem of terrorism in its non-governmental sense. After exploring recent policies and legal developments in Israel and the Unites States, countries that use the term “unlawful combatant”, this essay will criticise the ambiguity of these definitions, and point out future problems that might arise from this ambiguity during armed conflicts.