DECISIONS OF INTERNATIONAL TRIBUNALS

INTERNATIONAL COURT OF JUSTICE

Edited by Malcolm D Evans*
I. Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory: Advisory Opinion, 9 July 2004
II. Application for Revision of the Judgment of 11 September 1992 in the Case
concerning the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua Intervening), El Salvador v Honduras).
Judgment of 18 December 2003

I. LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL

IN THE OCCUPIED PALESTINIAN TERRITORY:
ADVISORY OPINION, 9 JULY 2004
A. Introduction
On 8 December 2003 the General Assembly at its Tenth Emergency Special Session
passed Resolution ES-10/14 requesting that the International Court of Justice urgently
render an advisory opinion on the following question:
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?

This opinion has to be seen in the light of the long-standing conflict between Israel
and its Arab neighbours. The territory constituting Palestine was part of the Ottoman
Empire. After the First World War Palestine became a British mandate constituting a
sacred trust of civilization. In 1947 the British Government announced it would leave
the territory and a Plan of Partition was proposed which would have divided the territory into two independent States, one Arab and the other Jewish. The Arab States
rejected this plan and the State of Israel was created in 1948. As a result of armed
conflict between Israel and the Arab States after Israels declaration of statehood, an
armistice was entered which divided the territory by means of a line (coloured green
on most maps). The Armistice line was crossed in 1967 when Israeli forces occupied
all of the territories that had constituted Palestine under the British mandate.1
The Security Council in its Resolution 242 (1967) called for Israel to leave the
occupied territories.2 Instead Israel pursued measures to change Jerusalems status and
this resulted in another Security Council resolution condemning the action.3 In 1980
1
2
3

Historical background taken from the Advisory Opinion of the court paras 7085.
Security Council Resolution 242 of 22 Nov 1967.
Security Council Resolution 298 of 25 Sept 1971.

[ICLQ vol 54, October 2005 pp 10031022]

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Israel adopted a basic law making Jerusalem the united capital of Israel and again the
Security Council passed a resolution indicating that the action was null and void.4
Another important part of the background to the territorial dispute was the fact that
a number of Israeli settlements had been constructed in the Occupied Territory resulting
in a change in the demographic composition of the territory. In 1979, the Security
Council examined the policy and practices of Israel in establishing settlements in the
Palestinian and other Arab territories occupied since 1967. In Security Council
Resolution 446, the Security Council stated that the settlements had no legal validity.5
The proposed barrier would incorporate some of these settlements into Israeli territory. In the spring of 2002, the Israeli Government began construction of a fence,
barrier, or wall between the West Bank and Israel with much of the construction not on
the green line but on territory occupied by Israel. By January of 2004 190 kilometres
of construction had been completed and there were plans to complete a continuous line
of about 720 kilometres along the West Bank. There has also been creation of a new
administrative regime. The area between the green line and the wall was a closed area
requiring a permit to enter or to reside. Most Palestinian residents of the area had only
received residency permits for a limited period. In contrast, Israeli citizens were free to
come and go without permits.
Due to the rapidity of the construction, the Court proceeded expeditiously with this
case. A preliminary issue dealt with by the Court was whether Judge Elaraby should
participate in the opinion. Israel had objected in two letters contending that in his previous career and in a newspaper interview in August 2001, Judge Elaraby had been
actively engaged in opposition to Israel including on matters which go directly to
aspects of the question now before the Court.6 The Court concluded that Judge Elaraby
had ceased being a diplomatic representative for Egypt many years before the question
of the construction of a wall in the occupied Palestinian territory and in the newspaper
interview of August 2001, Judge Elaraby expressed no opinion on the question put in
the present case; and that consequently Judge Elaraby could not be regarded as having
previously taken part in the case in any capacity.7 Judge Buergenthal dissented, criticizing the narrow interpretation of Article 17(2) of the Statute of the Court, not on the
issue of Judge Elarabys prior diplomatic career but on the newspaper interview stating:
what Judge Elaraby has to say in the part of the interview I quoted above, creates an
appearance of bias that in my opinion requires the Court to preclude Judge Elarabys
participation in these proceedings.8 Judge Buergenthals dissent merits careful consideration as the newspaper interview given by Judge Elaraby in 2001 did reveal a strong
predisposition towards the Palestinian position.
The Court heard oral arguments from 23 to 25 February 2004 and released its opinion on 9 July 2004. The Court held unanimously that it had the jurisdiction to give the
advisory opinion and by fourteen votes to one that the Court should have complied with
the request for the opinion. The Court held that the construction of the wall being built
by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and
around East Jerusalem, and its associated regime, was contrary to international law.
Judge Buergenthal dissented both on whether to give the opinion and on most of the
4
5
6
7
8

Security Council Resolution 478 of 20 Aug 1980.

Security Council Resolution 446 of 22 Mar 1979.
International Court of Justice Press Release, 2004/4.
Order in this case 30 Jan 2004.
Dissenting Opinion of Judge Buergenthal, concerning order of 30 Jan 2004, 3.

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substantive international law issues contained within the request. He was joined by
Judge Kooijmans on one substantive issue. As with most advisory opinions the Court
spent a considerable part of the opinion on jurisdiction before turning to the merits.
B. Jurisdiction
Among the States that contested jurisdiction were the Member States of the European
Union, Russia, the United States, and Israel.9 There were several grounds of objection
considered by the Court.
The first objection was that due to the active engagement of the Security Council
with the situation in the Middle East, the General Assembly passing a resolution for an
advisory opinion was acting ultra vires under the Charter. The Court held that although
the Security Council under Article 24 of the Charter had primary responsibility for the
maintenance of international peace and security, it did not have exclusive competence.10 It was observed that there had been an increasing tendency for both organs to
deal in parallel with the same matter regarding the maintenance of international peace
and security. Therefore, the Court determined that the General Assembly in adopting
Resolution ES-10/14 requesting the opinion, did not contravene the provisions in
Article 12, paragraph 1, of the Charter and that the General Assembly did not exceed
its competence.11
The second objection contended that the procedure adopted by the Tenth
Emergency Special Session of the General Assembly did not fulfil the two essential
conditions set by Resolution 377 A (V), the Uniting for Peace Resolution. These
were: that the General Assembly could only act if the Security Council failed to exercise its primary responsibility for the maintenance of international peace and security;
and, the situation was one where there appeared to be a threat to the peace, breach of
the peace, or act of aggression. The Court asserted that when the emergency session
was first convened in 1997 the Council had been deadlocked on a resolution concerning the Occupied Palestinian Territories. General Assembly Resolution ES-10/2
adopted at that time declared that there was a threat to international peace and security.
The current session reconvened on the same basis as 1997 after the rejection by the
Security Council of a draft resolution concerning the wall. The Court rightly held that
it was irrelevant that no specific proposal for an advisory opinion had been brought in
the Security Council.12
The third objection was that the question placed before the court was not a legal
question. There were two aspects to this objection; one that the question was too vague
and the other that the question was a political rather than legal one. The Court held that
a lack of clarity did not prevent the question from being answered as necessary clarifications of interpretation have frequently been given by the Court.13 The issue of
whether the question was a political one engaged both jurisdiction and propriety. In
terms of jurisdiction the Court had no difficulty in relying on its previous jurisprudence
that they could answer a legal question which also had political aspects.14
9 Written statements filed by Israel, Ireland on behalf of the European Union, Canada, and the
United States of America.
10 Advisory Opinion, para 26.
11 ibid, para 28.
12 ibid, para 32.
13 ibid, para 38.
14 ibid, para 40 and see also Conditions of Admission of a State to Membership in the United

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The consideration of the issue of propriety involved whether the exercise of the
Courts jurisdiction would be improper and inconsistent with the Courts judicial function. It was clear that the construction of the wall was part of the wider dispute between
Israel and Palestine and Israel had not consented to the court having a role. Israel
argued that this conflict should be settled by negotiation, not by compulsory adjudication. The issue was raised in the Western Sahara case of whether the advisory opinion
was circumventing the principle that a State is not obliged to allow its disputes to be
submitted to judicial settlement without its consent.15 The Court acknowledged that
that Israel and Palestine had radically different views on the legal consequences of the
building of the wall. However, the Court considered that the subject matter was not just
a bilateral matter and it involved issues of international peace and security, matters of
concern for the United Nations.16
A related issue of propriety was an argument that an advisory opinion would undermine the Roadmap for peace which required Israel and Palestine to comply with
certain obligations and any decision could compromise the negotiations. This issue was
also raised in the Legality of the Threat or Use of Nuclear Weapons case and the ruling
was cited to support the proposition that the effect of the opinion would present a
different element in the negotiation but that the effect was not known.17
Israel also raised the argument that the Court would be forced to speculate about
essential facts including the nature of the security threat and the effectiveness of the
wall as a response and also on the impact of the construction on the Palestinians. Israel
argued that it alone was in possession of the information and had chosen not to respond
on the merits. The Court decided that it had at its disposal the report of the SecretaryGeneral, as well as a voluminous dossier from the Secretary-General and had information provided by the other parties. Therefore the Court found it had sufficient
information to proceed.18
In his declaration Judge Buergenthal disagreed with the finding. He cited with
approval the dictum in the Western Sahara case:
whether the Court has before it sufficient information and evidence to enable it to arrive at
a judicial conclusion upon any disputed questions of fact the determination of which is
necessary for it to give an opinion in conditions compatible with its judicial character.

In his opinion, the absence in this case of the requisite information and evidence vitiated the Courts findings on the merits.19
The decision also dealt with the objection that the Courts opinion would lack any
useful purpose as the General Assembly had already made a declaration about the illegality of the wall. The Court maintained that it should be left to the General Assembly
to determine all the possible consequences of its own resolution.20
Nations, ICJ reports, 19471948, 612, Competence of the General Assembly for the Admission
of a State to the United Nations [1950] ICJ Rep 67, Certain Expenses of the United Nations
[1962] ICJ Rep 155 and Legality of the Threat or Use of Nuclear Weapons [1996] ICLJ Rep para
13.
15 Western Sahara, ICJ Reports 1975, 25, paras 323.
16 Advisory Opinion, para 49.
17 ibid, para 53.
18 ibid, paras 57 and 58.
19 Declaration of Judge Buergenthal, para 1 and Western Sahara [1975] ICJ Rep 289, para
46.
20 Advisory Opinion, para 62.

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Finally on the jurisdiction issue, the Court addressed whether it should refuse to
give an opinion due to Palestines responsibility for acts of violence and therefore not
coming before the Court with clean hands. Again this argument was considered not
to be pertinent as the advisory opinion was for the General Assembly and not for a
specific State or entity.21
Although the issue of jurisdiction was canvassed at length, the conclusions were
eminently reasonable and in conformity with the prior jurisprudence of the Court in
such cases as Western Sahara, Namibia, and the Legality of the Threat of the Use by a
State of Nuclear Weapons cases. The very nature of advisory opinions will engage
issues of propriety as they involve political and legal questions and issues in dispute
between nations. The Court in this case and the others cited was scrupulous in assuming jurisdiction only over the international law issues arising out of the political
disputes.
C. Merits
After reviewing the background to the construction of the wall, the Court considered
the relevant areas of international law applicable to the case. There were four major
issues considered in the case.
1. Prohibition against the use of force
The first issue was the prohibition against the use of force used in order to acquire territory. In addition to Article 2(4) of the United Nations Charter, the Court accepted the
customary nature of the prohibition including the aspect of the illegality of territorial
acquisition.
Gray in her second edition of International Law and the Use of Force devoted a
new chapter to the use of force against terrorism, A New War for a New Century. She
contended that one of the most difficult aspects was the issue of whether Article 51
could now be extended to attacks by non-State actors in the absence of any State
complicity. Uncertainty remained as to whether the notion of armed attack could be
extended to terrorists.22 The Court, however, failed to give this critical area of the law
of jus ad bellum the attention and analysis it deserved.
Israel had argued the right of self-defence as enshrined in Article 51 of the Charter
but in the context of non-State actors. The Court discussed the ambit of the provision,
pointing out the existence of an inherent right of self-defence in the case of armed
attack by one State against another State. Since Israel did not claim that the attacks
were imputable to another State and Israel exercised control in the Occupied
Palestinian Territory, Article 51 had no relevance to this action, and therefore the situation was different from Security Council Resolutions 1368 (2000) and 1373 (2001)
(resolutions on Al Qaeda).23
This is the most disappointing aspect of the judgment as the judges failed to seize
the opportunity to discuss self-defence and its relationship to the threat of terrorism.

21
22
23

ibid, para 64.

C Gray International Law and the Use of Force (OUP Oxford 2004) 1657.
Advisory Opinion, para 139.

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Judge Burgenthal argued that he may well have supported the finding that some or even
all segments of the wall violated international law but he could not agree that this
conclusion could be justified without assessing all of the relevant facts bearing directly
on issues of Israels right of self-defence, military necessity, and security needs. He
particularly mentioned the repeated deadly terrorist attacks coming from the
Occupied Palestinian Territory.24 Judge Higgins indicated that she did not agree with
all the Court said on self-defence, most particularly the limitation that an attack had to
be made by another State.25 Although she acknowledged that the limitation might be a
result of the Courts decision in Military and Paramilitary Activities in and against
Nicaragua where it was held that action by irregulars could constitute an armed attack
if these were sent by or on behalf of the State, she maintained her objection to this position.26 She stated persuasively:
I fail to understand the Courts view that an occupying Power loses the right to defend its
own civilian citizens at home if the attacks emanate from the occupied territorya territory which it has found not to have been annexed and is certainly other than Israel.
Further, Palestine cannot be sufficiently an international entity to be invited to these
proceedings, and to benefit from humanitarian law, but not sufficiently an international
entity for the prohibition of armed attack on others to be applicable. This is formalism of
an unevenhanded sort. The question is surely where responsibility lies for the sending of
groups and persons who act against Israeli civilians and the cumulative severity of such
action.27

Judge Kooijmans discussed the aspect of international terrorism. He argued that

Resolutions 1368 and 1373 recognized the right to self-defence without making any
reference to an armed attack by a State and that acts of international terrorism were
threats to international peace and security. In this case he argued that the Court had
bypassed this new element in the law of self-defence.28 Nevertheless, Kooijmans was
prepared to agree with the opinion as Israel had not advanced any argument that the
terrorist attack originated outside of the territory which was under the control of the
State that was a victim of the attack and it therefore did not engage international peace
and security.29
Judge Owada argued that an in-depth effort should have been made by the Court to
assess the validity of the argument of Israel that the sole purpose of the wall was to
effectively combat terrorist attacks.30 He also argued that the issue of the mutual resort
to indiscriminate violence against civilians should have been examined and that the
Court should have approached the subject matter with a more balanced view.31
2. Self-determination in international law
A major issue in human rights, self-determination was given separate consideration in
the judgment which again attracted criticism from Judges Higgins and Kooijmans. The
Court assessed the impact of the construction of the wall on the right of the Palestinian
24
25

Declaration of Judge Buergenthal, para 3.

Separate Opinion of Judge Higgins, para 33 and Nicaragua v United States of America,
Merits Judgment [1986] ICJ Rep 14.
26 R Higgins Problems and Process, International Law and How We Use It (OUP Oxford
1994) 2501.
27 Separate Opinion of Judge Higgins, para 34.
28 Separate Opinion of Judge Kooijmans, para 35.
29 ibid, para 36.
30 Separate Opinion of Judge Owada, para 30.
31 ibid, para 31.

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people to self-determination. The Court stated that the right of peoples to self-determination was a right erga omnes.32 The opinion made clear that the existence of a separate Palestinian people was no longer an issue. However, the route of the wall included
within the closed area 80 per cent of the Israeli settlers in the Occupied Palestinian
Territory. The location of the wall would mean that 160,000 Palestinians would reside
in completely circled communities along with 320,000 settlers and therefore its
construction severely impedes the exercise by the Palestinian people of its right to
self-determination. 33
Judge Higgins took issue with this assertion arguing that the Court was detached
from reality if it took the view that it was the wall alone that prevented the exercise of
self-determination.34 Judge Kooijmans argued that it would have been better had the
Court left the issue of self-determination to the political process as that issue was
imbedded in the wider context.35
Although this issue may not have been discussed in detail, the conclusion cannot be
disputed. The ability of the Palestinian people to exercise self-determination has been
materially affected by the combination of the wall and the change in population caused
by the Israeli settlements. Self-determination is not just a political issue but a right
enshrined in the United Nations Charter and the two Covenants on Civil and Political
Rights and Economic, Social and Cultural Rights. It may be that the wall is only one
part of the equation but its presence is a substantial hindrance to the exercise of this
important right.
3. International Humanitarian Law
The third area of international law considered by the Court was international humanitarian law, particularly the law of occupation. The Court cited Article 42 of the 1907
Hague Regulations which stated that territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to
the territory where such authority has been established and can be exercised. One of
the most important aspects of this decision was the unequivocal statement that the
Court considered that the Palestinian territory between the green line and the former
eastern boundary of Palestine under the Mandate were occupied by Israel and thus
international humanitarian law applied.36
Although Israel was not a party to the Fourth Hague Convention of 1907 and its
regulations, the Court held that the regulations were part of customary international
law. The second major body of law was the Fourth Geneva Convention of 1949; Israel
disputed its applicability de jure to the occupied Palestinian territory. The reason given
was the lack of recognition of the territory prior to its annexation by Jordan and Egypt
so that it was not a territory of a High Contracting Party as required by the Convention.
Palestine had given a unilateral undertaking in 1982 to apply the Convention. Israel had
also indicated that it would apply the provisions of the Convention to the territory.
The Court had a different interpretation and held that the law of occupation applied
32
33
34
35
36

Advisory Opinion, para 88.

ibid, para 122.
Separate Opinion of Judge Higgins, para 30.
Separate Opinion of Judge Kooijmans, paras 31 and 32.
Advisory Opinion, para 78.

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as the two conditions of Geneva law had been fulfilledthere had been an armed
conflict between two Contracting Parties (Israel and Jordan) and that as a result of that
conflict territory had been occupied by one of the Contracting Parties. The key factor
for the Fourth Geneva Convention was the protection of civilians regardless of the
status of the territory.37
The Court found several breaches of international humanitarian law. A serious
breach was that of Article 49, paragraph 4 of the Fourth Geneva Convention which
provided that: The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.38 The Court was of the view that since
1977 Israel had conducted a policy that violated this provision and that the Israeli
settlements were in breach of international law.39
The Court found that the construction of the wall in addition to demographic
changes outlined above would destroy property, which contravened Articles 46 and 52
of The Hague Regulations and Article 53 of the Fourth Geneva Convention. It had not
been demonstrated that the destructions were rendered absolutely necessary by military
operations. Although the Court mentioned other provisions of the Hague Regulations
and the Geneva Convention, particularly with respect to conditions of survival, it did
not engage in any extensive consideration of these articles and spent the bulk of its time
considering the human rights implications.
Although this might have been the most extensive portion of the judgment, it is still
disappointing in its brevity. The law of occupation under international humanitarian
law is a complex field and there might have been a more complete examination of the
responsibilities of the occupation, particularly the interrelationship between security
concerns and the provisions of the necessities of life.40
4. International Protection of Human Rights
The fourth area of international law was the issue of the protection of human rights.
Israel had taken the position that its obligations under the International Covenant of
Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social
and Cultural Rights (ICESCR) did not apply to the Palestinian territory. It asserted that
the protection was that of international humanitarian law. The Court supported its opinion in the Legality of the Threat or Use of Nuclear Weapons case that protection
offered by human rights instruments did not cease in armed conflict save for the derogations found in Article 4 of the ICCPR. There might be three possible scenarios in
armed conflict. Some rights may be exclusively matters of international humanitarian
law, some might be exclusively matters of human rights law, and others may be matters
of both branches.41
This part of the opinion discussed the territorial aspects of the two Covenants and
the Convention on the Rights of the Child and held that there were circumstances when
37
38

ibid, paras 91101.

Protocol Additional to the Geneva Conventions of 12 Aug 1949, of 8 June 1977, Art 85(4)
specifies that transfer of population into an occupied territory is a grave breach but this is not specified in the Fourth Geneva Convention and Israel is not a party to the Protocol.
39 Advisory Opinion, para 120.
40 See, eg, the UK Ministry of Defence, Manual of the Law of Armed Conflict (OUP Oxford
2004) 273305 on occupied territory.
41 Advisory Opinion, para 106.

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the State exercises its jurisdiction on foreign territory where its human rights obligations under these treaties continue. First of all, the Court supported the findings of the
Human Rights Committee in relation to its consideration of the reports filed by Israel
that its obligations under the ICCPR extended outside of the territory and into the occupied territories. Secondly, the Court reviewed the ICESCR and stated that although it
had no provision on the scope of its application, the 37 years of occupation meant that
Israel had obligations to Palestine under the ICESCR. Finally, the Court held that the
Convention on the Rights of the Child was applicable within the Occupied Palestinian
Territory.
In terms of specific violations, the Court referred to two articles in the ICCPR:
Article 17, privacy and family life; and Article 12, freedom of movement. Freedom of
movement was extended in this case to access to the holy places as had been undertaken in the General Armistice Agreement by Israel. The Court considered the qualifying clauses regarding restrictions provided by law necessary to protect national
security, public order, public health or morals or the rights and freedoms of others, and
held that the proportionality test had not been met.42 The Court held that the establishment of a closed area between the green line and the wall itself, and the creation of
enclaves, imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory. These restrictions were aggravated by the
few number of access gates to the territory and restricted opening times.
The provisions of the ICESCR involved were the right to work (Articles 6 and 7);
protection and assistance accorded to the family, and to children and young persons
(Article 10); the right to an adequate standard of living, including adequate food, clothing, and housing, and the right to be free from hunger (Article 11); the right to health
(Article 12); the right to education (Articles 13 and 14). Articles 16, 24, 27, and 28 of
the UN Convention on the Rights of the Child were also specified. These rights were
involved because of the destruction of fertile agricultural land and water wells in the
construction of the wall. This had resulted in food insecurity in the region and the
annexation of the Western aquifier system which provided 51 per cent of the West
Banks water resources. The position of the wall also separated 30 localities from
health services, 22 from schools, 8 from primary water sources and 3 from electricity
networks. As a result of losing access to their farms and water, many of the Palestinians
living in these areas would be forced to leave. The Court held, therefore, that the wall
impeded the rights to work, to health, to education, and to adequate standard of living
as enshrined in the articles of the ICESCR and the Convention on the Rights of the
Child as outlined above.43
This aspect of the judgment is perhaps the most satisfying to the international law
scholar as it includes consideration of human rights in the field of armed conflict and
clarifies the human rights obligations of an occupying power to include all of the
conventions it has acceded to. However, Judge Higgins in her dissent, argues that for
both Covenants, one may wonder about the appropriateness of asking for advisory
opinions from the Court on compliance by States parties with such obligations, which
are monitored, in much greater detail, by a treaty body established for that purpose.44
Again the opinion can be criticised for its brevity on these important issues.

42
44

43 ibid, para 134.

ibid, para 136.
Separate Opinion of Judge Higgins, para 27.

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5. Necessity
A final major international law issue was a discussion of the customary law doctrine of
necessity. The Court considered whether Israel could rely on a state of necessity as
recognised in customary international law to preclude the wrongfulness of the
construction of the wall. The judgment referred to Article 25 of the International Law
Commissions Articles on Responsibility of States for Internationally Wrongful Acts
which specified that the act being challenged be the only way for the State to safeguard an essential interest against a grave and imminent peril. The opinion rejected
necessity in this case as it was held that in light of the material before the Court, the
construction of the wall along the route chosen was not the only means to safeguard
Israel against a grave and imminent peril.45 This part of the opinion, although very
brief, is important for its reliance and tacit approval of the work of the International
Law Commission on the critical area of the law of State responsibility.
D. Consequences of the breaches of international law
The Court held that Israel had the obligation to cease forthwith the work of construction of the wall. Furthermore, there should be compensation or other forms of reparation to the Palestinian people for the damage caused to all natural or legal persons. The
principle of reparation applied was set out in the Chorzw Factory case in the
Permanent Court of International Justice. Therefore, Israel would be under an obligation to return the land, orchards, olive groves and other immoveable property and, if
impossible, to provide financial compensation.
The final part of the decision concerned the consequences of this opinion as regards
other States. The Court ruled that given the character and importance of the rights and
obligations involved, all States were under an obligation not to recognize the illegal
situation resulting from the construction of the wall. They were also under an obligation not to render aid or assistance in maintaining the situation. They must also ensure
compliance by Israel of the international humanitarian law. The Court then indicated
that the United Nations, especially the General Assembly and Security Council, should
take further action in order to bring to an end the illegal situation resulting from the
construction of the wall and the associated regime. Again this part of the ruling is
disappointing and could have considered the Draft Articles of State Responsibility in
relation to this situation.46
Judge Kooijmans voted against this part of the decision. In his Separate Opinion he
argued that the request for the opinion did not necessitate the determination of the legal
consequences for other States.47 He took issue with the reasons given in paragraphs
1558 of the opinion that the violations of the obligations erga omnes engaged the
responsibility of other States.48 Unlike the majority, Judge Kooijmans discussed the
International Law Commissions Articles of State Responsibility. He specifically
referred to Article 41 which indicated that States should cooperate to bring to an end
any serious breaches and not to recognize the breaches as lawful. Kooijmans argued
that Article 41 did not refer to individual obligations of third States. He also argued that
the duty not to recognize was an obligation without real substance.49 With respect to
45
47
48

46 ibid, para 159.

Advisory Opinion, para 140.
Separate Opinion of Judge Kooijmans, para 39.
49 ibid, para 44.
ibid, para 40.

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the Geneva Conventions he could not accept the Courts finding that the States parties
to the Fourth Geneva Convention were under an obligation to ensure compliance by
Israel to humanitarian law when they are not parties to the conflict.50
Kooijmans was correct that the Court should have given due consideration to the
Articles of State Responsibility. However, it is clear from the commentary to the
Articles that there were numerous precedents cited with respect to obligations of other
States not to recognize an illegal situation resulting from a serious breach of an obligation in international law and to cooperate to bring an end to these breaches.51 The
Court should have discussed this issue in more detail given the important developments
in the law of State responsibility and the concept of serious breaches of obligations
under peremptory norms of international law.
E. Conclusion
This advisory opinion will constitute an important addition to the jurisprudence of
international law, most particularly in the occupation law segment of international
humanitarian law and the relationship of this branch of international law with the
protection of human rights. These two areas could have been discussed in much greater
detail but the ruling will enhance the understanding of the nature of human rights law
and humanitarian law in occupied territories. Nevertheless, the lack of consideration of
the important issue of self-defence in the context of terrorism is probably the most
disappointing aspect of the decision. It is probable that the construction of such a
barrier would be disproportionate to the threat of terrorist attacks but to dismiss this
argument on the basis that attacks did not come from another State ignores the reality
of modern armed conflict.
SUSAN C BREAU*

II. APPLICATION FOR REVISION OF THE JUDGMENT OF 11

SEPTEMBER 1992 IN THE CASE CONCERNING THE LAND, ISLAND
AND MARITIME FRONTIER DISPUTE (EL SALVADOR/HONDURAS:
NICARAGUA INTERVENING), (EL SALVADOR V HONDURAS),
JUDGMENT OF 18 DECEMBER 2003
A. Introduction
Applications for revision of judgments under Article 61 of the Statute of the
International Court are rare. Any such application invariably finds itself squeezed
between the fear of undermining the principle of res judicata and high admissibility
requirements. The odds are thus stacked against any successful application. Revision
of a judgment of the Court is seen as exceptional as possibly impairing the stability of
50
51

ibid, paras 467.

James Crawford The International Law Commissions Articles of State Responsibility:
Introduction, Text and Commentaries (CUP Cambridge 2002) 24953.
* Dorset Fellow of Public International Law, British Institute of International and
Comparative Law.
doi:10.1093/iclq/lei050

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