An international dispute and its legal consequences
General assembly in its resolution adopted on 8 December 2003 in its Tenth emergency special session for an advisory opinion to International court of Justice on legal consequences arising from the construction of wall being built by Israel in occupied Palestine territory. The consideration of rules and principles of international law including the fourth Geneva Convention 1949 and relevant Security Council and general assembly resolutions were the important question.
Firstly, the court decided to look into the matter of jurisdiction of the court and whether the court have the jurisdiction to determine such advisory opinion on the matter or not. The International court of justice (ICJ) hold the jurisdiction under article 65 paragraph 1 of the statue of the ICJ. According to A65 the International Court of Justice may give an advisory opinion on any legal question at the request of anybody authorized by or in accordance with the United Nations charter such as Security Council or General Assembly. This advisory opinion was seek by General assembly on 10 Dec 2003 through the General-Secretary of the General Assembly so it shows that the ICJ do have the Jurisdiction.
Article (96) (a) of the UN charter also give the authority to General Assembly and security council to send any matter to ICJ for the advisory opinion. Number of states put the matter of constructing the wall in the occupied Palestine territory in the general assembly 10th emergency special session of the General assembly and call it the matter of international peace and security and illegal on the half of the Israel Whereas Israel alleged that ICJ acted ultra vires and ICJ do not have any jurisdiction in such matter to give any advisory opinion on the issue of wall. Israel argue that the advisory opinion is not in accordance with the Article 12 paragraph 1 of the UN Charter where it is stated that if any dispute or situation is in discussion of the security council then the general assembly cannot make any recommendation’s without the request of the Security council. The International Court of Justice Overruled this argument as court observes that a request for “Advisory opinion” is not a recommendation so it does not fall in the A12 of the UN charter. The court observed that the A12 have evolved subsequently and does not bar the General assembly to request the ICJ for the advisory opinion. The court also found that a session of Security Council happened in 1997 and due to a single negative vote by the member state Security Council was unable to take any action against the Israel wall case so a session in October 1997 happened again and recommendations sent to ICJ to give advisory opinion. While deciding another issue raised by the Israel was related to the jurisdiction was that mere recommendation of the general assembly does not rise a legal question before the court so in result there must be no legal question and no jurisdiction in such so matter. The court found that recommendation was based on the legal consequences of the construction of wall considering the rules and principles of International law is such a query which itself is a legal question so in this case the recommendation changed into a legal question and court clarifies that such lack of clarity in drafting doesn’t deprive the court in terms of jurisdiction.
Israel also raised his argument that court doesn’t hold the jurisdiction because the nature of the question is political and court should refrain from the political questions as a customary rule. Court while observing the circumstance found that every question must have a political doctrine as well so merely political nature could not deprive the court from the jurisdiction. Court is obliged to assume jurisdiction because the question demands the legal consequences. Another argument was raised by the defendant that dealing with the advisory opinion is a discretionary power of the court and ICJ is not bound by any law to must give an advisory opinion. The word “may” in the A65 paragraph 1 of the statue of ICJ leads us to this conclusion that it’s a discretionary power and court must not exercise tithe court observed that it is principal judicial organ of the United states and in principle cannot decline jurisdiction in such matter that general assembly made such recommendations just on the basis of the discretionary power. It is the responsibility of the ICJ to give advisory opinion and court do not see any harm in this.
Israel also raised the point that it is a bilateral issue between two countries Palestine and Israel and this could give a permanent effect to the Palestine future in the region so court should refrain to assume jurisdiction in such matter. Whereas the court opinion was that they are only giving the advisory opinion on the legal consequences of the wall constructing which will not have any permanent effect on the settlement of Israel and Palestine issue and would not hurt any roadmap by the general assembly in resolving such dispute. The Israel counsel also raised that this advisory opinion is useless and there is no any particular purpose of the advisory opinion because General assembly has already declared the wall constructing in the Palestine territories as illegal and stopped the Israel from doing so an reverse the situation.in which result court replies that it is the duty of the General assembly to decide that it is useful or required for any issue or dispute or not so the court cannot decline the jurisdiction on such basis. The court also refused the claim of the Israel that they built the wall in good faith and to stop the act of violence against them. Court found that these arguments are not pertinent as advisory opinion was required not by a single state but by General assembly.
Lastly, Court while observing all of the above points that the court does hold the Jurisdiction to give advisory opinion on the given factual situation and there is no bar on the court for assuming the jurisdiction.
Opinion of the ICJ
In this case, the court was asked to render a quick opinion by Palestine. Because, there was threat of construction of wall by Israel, they prepared all the things and devices and inflicted strict security around in that area. They wanted to build the wall as soon as possible. On the other hand, Palestine was planning to stop the construction of wall because of the land of their ancestors and living. They protested it against Israel in eastern Jerusalem, in the occupied Palestine and near al-Aqsa mosque. But Israel paid no heed on it. Court said, general assembly is authorized to hear the case according to article 96 of the charter. So, by collecting evidence and arguments by both parties.
Court gave an opinion that without consent of any state no other state can construct wall in their territory. Since Palestine is an independent and member state of UN. Also Palestinian are living in this state for hundreds of years. They have their businesses, relatives in eastern Jerusalem. They got support of Arab and non-Arab state in the world. Therefore, UN pointed out no state can construct the wall in others state territory. In response the Israel challenged and raised three questions. First according to article 12 court cannot do something without Security Council request. So in this case Security Council did not request. Court replied there is no hard and fast rule by that Security Council should request but both can work as they like. One of the questions that was raised by Israel. First according to article 12 court cannot do something without Security Council request. Court replied there is no hard and fast rue by the Security Council. General assembly and Security Council work as they like
One of the questions that was raised by Israel is Palestine don’t come with clean hands. Court responded they have right to do so. Because, they can do in their territory. One argument that was raised by Israel is court should not decline to give its advisory opinion, court said they have right to do so. There was the case the advisory opinion on 9th July. That Israel can’t construct the wall in the territory of Palestine because they are independent and member of state of UN. The Court stated that Israel must put an immediate end to the violation of its international obligations by ceasing the works of construction of the wall and dismantling those parts of that structure situated within Occupied Palestinian Territory and repealing or rendering ineffective all legislative and regulatory acts adopted with a view to construction of the wall and establishment of its associated régime. The Court further made it clear that Israel must make reparation for all damage suffered by all natural or legal persons affected by the wall’s construction. As regards the legal consequences for other States, the Court held that all States were under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction.
The Court concluded by observing that the construction of the wall must be placed in a more general context, noting the obligation on Israel and Palestine to comply with international humanitarian law, as well as the need for implementation in good faith of all relevant Security Council resolutions, and drawing the attention of the General Assembly to the need for efforts to be encouraged with a view to achieving a negotiated solution to the outstanding problems on the basis of international law and the establishment of a Palestinian State.