In June 2002, the Israeli cabinet approved a plan to construct a continuous “security fence” separating much of the occupied West Bank of the Jordan River from Israel proper. The stated purpose of the barrier was to prevent Palestinian terrorists from entering Israel and killing Israeli civilians. Construction began in 2002, and a significant portion of the structure had been completed by early 2004. The current route of the wall deviates significantly from the “Green Line”—the 1949 armistice line that separates the West Bank from Israel. The fence frequently enters and traverses the West Bank, encircling Jewish settlements there. Eventually, about 15 percent of the territory of the West Bank, home to several hundred thousand Palestinians, will lie between the wall and the Green Line.

It is hardly surprising that the controversial advisor)’ opinion of the International Court of Justice in the case concerning the Israeli security fence raised serious concerns in many quarters, on multiple grounds. Most prominently, as some of the judges and numerous commentators have noted, the restriction of the right of self-defense under Article 51 of the United Nations Charter to attacks by “states” is unwarranted on the basis of the text. It is also, of course, illogical in an era when the worldwide terrorist threats stem primarily from nonstate actors. Additionally, in the current case, while the Court assimilated “Palestine” to a state for the purpose of granting it certain rights (including procedural rights before the Court), the ICJ made no corresponding acknowledgment of Palestine’s obligation to refrain from engaging in an armed attack. This, as Judge Rosalyn Higgins recognized, was “formalism of an unevenhanded sort.”

On July 9, 2004, the International Court of Justice issued its advisory opinion on the legal consequences of Israel’s construction of a security wall on occupied Palestinian territory, declaring that the wall was in violation of international law. The advisory opinion also indicated that Israel should forthwith cease construction of the wall, dismantle what had been so far constructed, and make reparations to the Palestinians for all damages caused by the project. On July 20, 2004, at the Tenth Emergency Session of the General Assembly, Resolution ES-10/15 was adopted by a vote of 150 in favor, 6 opposed, and 10 abstentions, demanding that Israel comply with the legal obligations as specified by the advisory opinion.

On December 8, 2003, the International Court of Justice was requested by the United Nations General Assembly to give an advisory opinion on the “legal consequences” of the security fence under construction by Israel in the West Bank, also variously called “security barrier” and “wall.” The General Assembly sought referral to the Court by a vote of 90 states—but another 74 states abstained, and 8 states voted in opposition. Careful consideration of the case was rendered especially difficult by the decision of the Court to set a truncated briefing schedule, permitting only six weeks for written submissions on jurisdiction and the merits. An even greater concern was the danger, perhaps realized, that the Court’s opinion might be read as prejudging issues central to negotiations in the “Roadmap” political process seeking peace in the Middle East. The hope for some coherence in the approach of the international community to the resolution of a difficult and violent conflict is not otiose, especially where a stable settlement will require ongoing diplomatic, economic, and security support. For that very reason, two of the road map’s sponsors—the United States and the Russian Federation—urged the Court to take account of the impact that any decision might have on the negotiating process. The European Union, as a third member of the “Quartet” sponsoring the road map, together with the ten acceding states to the European Union and fifteen other states, urged the Court to decline to render any advisor)’ opinion at all because of the “compelling” circumstances of the peacemaking process.

In October 2003, the Israeli permanent representative addressed the United Nations General Assembly on why Israel felt compelled to build a lengthy barrier spanning hundreds of kilometers across certain areas of the occupied West Bank of the Jordan River. Among other things, Ambassador Dan Gillernian stated:

Israel has justified the construction of its barrier wall as a nonforcible measure taken in selfdefense to protect its citizens against terrorist attacks emanating from the occupied Palestinian territory. This essay addresses two issues. First, was the International Court of Justice’s conclusion in paragraph 139 of the advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory that “Article 51 of the Charter has no relevance in this case” wellfounded? This question involves consideration of three interrelated substantive aspects of paragraph 139: the Court’s finding that Article 51 was irrelevant because Israel did not claim that the attacks against it were imputable to a foreign state; the relevance of the Court’s reliance on the fact that Israel exercises control over the occupied Palestinian territory; and the Court’s conclusion that the situation differs from the circumstances contemplated in Security Council Resolutions 1368 (2001) and 1373 (2001) and that, accordingly, Israel could not invoke these resolutions in support of its claim to be exercising a right of self-defense. The second issue is whether the approach of the Court to the substantive content of Article 51 can be defended as an appropriate discharge of its judicial function. To avoid undue suspense, let it be said at the outset that paragraph 139 is well-founded, and the Court properly fulfilled its task.

Ever since the occupation of the West Bank and Gaza began in 1967, the Supreme Court of Israel has entertained petitions challenging actions of the Israeli authorities in those territories. The Court has delivered dozens of judgments in which it addressed questions of international humanitarian law in a situation of belligerent occupation. For a long time the Supreme Court was the sole judicial actor in this sphere. While its judgments were subjected to scrutiny and criticism by academics, no other judicial organs, domestic or international, ruled on the difficult legal issues discussed by the Court. The request for an advisory opinion provided the International Court of Justice (ICJ) with a unique opportunity to address and clarify some of the issues that had previously remained in the exclusive domain of the Supreme Court of Israel. Unfortunately, the Court did not take full advantage of this opportunity. As Judge Rosalyn Higgins noted in her separate opinion, the Court refrained from engaging in a detailed analysis of the law, thereby failing to follow “the tradition of using advisory opinions as an opportunity to elaborate and develop international law.” The opinion is especially weak on questions of international humanitarian law (IHL), which makes it extremely difficult to know what the Court actually decided on these questions.

I shall confine my brief thoughts on the recent advisory opinion of the International Court of Justice (ICJ) on the legal consequences of the construction of a wall in the occupied Palestinian territory (OPT) to the Court’s treatment of international humanitarian law (IHL) in general, and to the law of belligerent occupation in particular. To that end, I will focus on the following four areas: the Court’s consideration of the applicable law as regards IHL; the Court’s interpretation of Article 6 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War; the Court’s consideration of the concept of military necessity in the context of foreign military occupation; and the Court’s consideration of the responsibility of third states, particularly the high contracting parties to the Fourth Geneva Convention, for violations of relevant principles of IHL by an occupying power.

Are obligations assumed by states under international human rights treaties applicable extraterritorially during periods of armed conflict and military occupation? This was one of the issues addressed by the International Court of Justice (ICJ) in its advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The Court indicated that the obligations assumed by Israel under the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESC), and the Convention on the Rights of the Child (CROC) applied in the occupied territories and that the construction of the security barrier constituted “breaches” by Israel of various of its obligations under these instruments.

On December 2, 2004, the UN General Assembly adopted the UN Convention on Jurisdictional Immunities of States and Their Property. Capping more than a quarter of a century of intense international negotiation, the new treaty is the first modern multilateral instrument to articulate a comprehensive approach to issues of state or sovereign immunity from suits in foreign courts. Notably, it embraces the so-called restrictive theory of sovereign immunity, under which governments are subject to essentially the same jurisdictional rules as private entities in respect of their commercial transactions. The treaty was opened for signature on January 17, 2005 (when Austria and Morocco became the first states to sign), and will enter into force when thirty states have deposited their instruments of ratification, acceptance, approval, or accession with the UN secretary-general.

The International Law Commission held its fifty-sixdi session in Geneva from May 3 to June 4, and from July 5 to August 6, 2004, under the chairmanship of Teodor Melescanu of Romania. The Commission completed its first reading of draft principles on international liability for transboundary harm and draft articles on diplomatic protection, which have now been submitted for comment by states with a view to their completion in 2006. The Commission also continued its work on reservations to treaties, responsibility of international organizations, unilateral acts of states, fragmentation of international law, and shared natural resources. In addition, the Commission decided to start work next year on the effect of armed conflict on treaties and the expulsion of aliens, and to recommend adding a new topic—the obligation to prosecute or extradite—to its long-term program. The following is a summary of where each topic stands and what issues are likely to be most prominent at the Commission's 2005 session.