COLIR INTERNATIONALE DE JUSTICE RECUEIL DES ARRÊTS AVIS CONSULTATIFS ET ORDONNANCES CONSÉQUENCES JURIDIQUES DE L'É DIFICATION D'UN MUR DANS LE TERRITOIRE PALESTINIEN OCCUPÉ AVIS CONSULTATIF DU 9 JUILLET 2004 INTERNATIONAL COURT OF JUSTICE REPORTS O F JUDGMENTS ADVISORY OPINIONS AND ORDERS LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCCrPIED PALESTINIAN TERRITORY ADVISORY OPINION OF 9 JULY 2004 Mode officiel de citation Conséquences juridiques de 1'édzJîcation d'un mur dans le territoire palestinien occupé avis consultatif C 1 J Recueil 2004 p 136 Officia1 citation Legal Consequences cf the Construction of a Wu11 in the Occupied Palestinian Territory Advisory Opinion I C J Reports 2004 p 136 ISSN 0074-4441 TSBN 92-1-070993-4 No de vente Sales number I 883 1 9 JUILLET 2004 AVIS CONSULTATIF CONSÉQUENCES JURIDIQUES DE L'ÉDIFICATIOND'UN MUR DANS LE 'TERRITOIRE PALESTINIEN OCCUPÉ LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE O 'CUP1ED PALESTINIAN TERRITORY 9 JULY 2004 ADVISORY OPINION 1NTER NATIONAL COURT O F JUSTICE YEAR 2004 2004 9 July General List No 131 9 July 2004 LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY Jurisdiction of' the 'ourt tu give the advi sory opinion requested Article 65 parugra vh 1 qf' the Stutute Article 96 puragruph 1 of' the Charter Power ' eneralA s semblj to request advisory opinions - Activities oJ' As sembly Events leuding tu h ea d o t i ocf' n Generul Assembly re solutiol ES-10114 reyuesting the adïi sory opinion Contention thut Generul Assembly acted ultra vires under the Charter Article 12 parugraph 1 und Article 24 of' the Charter Uniteri Nations pracf icc concerning Z Cintcv-pretation 9f' Article 12 paragruph 1 uf' Charter - Ge17erul As cvnblydid no exceed its conlpeten e - - - - - Request fur opinion adopted by the Tentlî Emergency Speciul Session of' the Generul Assenzbly Sessiorr converled pursuant tu resolution 377 A J' Uniting fir Peuce Conditions set by that resolution - Regularity of' procedure fOlloi 2 ed Alleged lack of clarity oJ' the terrrrs of the question Purportedly abstruct nature of' the question Political aspects of the question - Motives suid to have inspirer1 the requrst and opinion's possible imp1ication r Legal nature qf' question i rzaflfctc d Court hailing juri vd iction to give udvi sory opinion requested - - - - - Discretionary powe r cf' Court to k c i d evvhether it should give an opinion Article 65 purugruph 1 of S t u t u t e - Relevunce cfluck of consent o f u State concerned - Questio cannot be regurded only as a bilateral matter between Isruel and Palestine but is directly of'concern to the United Nations - Possible ffkcrsof' opinion on a political negotiuted solution to the Israeli-Palc stiniun conjict Questiorr r8rpre snztingolîly ot7e aspect of Isracli-Pule tiniunconjict Sujfic ienc y of infornzation and evidence ai ailableto Court U s fulpurpose - - - 137 CONSTRUCTION OF A WALL ADVISORY OPINION of opinion - Nullus commodum capere potest de sua injuria propria Opinion to he givtw to the General Assembly not to a specijîc State or entity - No compelling reason for Court to use its discretionary power not to give an advisory opinion Legal consequence5 of the construction o f a wall in the Occupied Pulestinian Territory including in and around East Jerusalem Scope of question posed Request for opinion limited to the legal consequences of the construction of those parts qftlle wull situated in Occupied Palestinian Territory - Use of' the term wall Historical background Description of'the i t all - - Applicable kzw United Nations Charter - General As sembly resolution 2625 X X V - Illegalitj q f a n y territorial acquisition resulting from the threat or use of force Right of'peoples to self-determination International humunitarian au Regulations annexed to the Fourth Hague Convention of 1907 - Fourth Geneva Convention of 1949 - Applicability of Fourth Geneva Convention in the Occupied Palestinian Territory - Human riglzts Iaw -- - International Covenant on Civil and Political Rights - Internutionul Covenant on Economic Social and Cultural Rights Convention on the Rights of the Child Relutionship betvveen international humanitarian law and humun rights law - A pplicability of'human rights instruments outside national territorjj Applicabill'ty of those instruments in the Occupied Palestinian Territory - - - - Settlements e stublis ied by Israel in breuch oj'international law in the Occupied Palestiniun Territ sïy Construction of the wall and its ussociuted régime create a ' fait accompr'i on the ground that could well becorne permanent Risk of situation tantainount to de facto annexation Construction of the wall severely impedes the exercise by the Pulestinian people qf its right to selfdetermination und is thereji rea breach of Israel's obligation to respect that right Applicublc provisions of international hunzanitarian law and human rights instruments relevant to the present case - - Destruction and requi vition qfpropc rties Restrictions on freedom o f movement of inhabitants of' the Occupied Inzpediment r to the exercise by those concerned of the Palestinian Territory right to ivork to lzealt h to education and to an adequate stanùurd of living Demographic changes in the Occupied Palestinian Territory - Provisions of' international lzumanituriun Iaw enabling account to be taken ofmilitary exigencies - C1au se s in humcïn rights instrument qualifj'ing rights guarunteed or providing for d 7rogution Construction of the wuIl and its associated rGgime cannot be dustijied by militury exigencies or by the requirements of national security or public order -- Breach hy Israel qf various of'its obligations under - - - - -- - - the applicable provisions instruments of' international humunitariun law and human rights Selfldefence Article 51 of the Charter Attacks against Israel not imputable to u foreign State Threat invoked to justify the construction of the 1 a11 originating ivithin a te rritory over ivhich Israel exercises control Article 51 not relevant in the pre ient case Statc of' necessity Customury internationai air - Conditions Construction qf the wu11 not the only nîeuns to sufkguard Israel's interests aguinst the peril inv«ked Construction of the wall and its u vsociated rkgime are contra- to international IUCV - - - - Legal consequences the violation b j Israel of'its oh1igation s Isruel's international responsibility Israel obliged to comply ivith the international obligations it has hreached by the con struction of the wall -- Israel obliged to put un end t o the violation oj'its international obligations - Obligatinn to ceuse furthwith the works of' construction of the z lto l dismantle it f'orthwitli und to repeal or render in ifective forthwith the legislutive and regulatory acts relating to its construction save where relevant fOr compliance by Israel with ils obligation to make reparation f i rthe damage caused Israel obliged to make reparation fur the dumuge caused to al1 natural or 1egalperson s affected by con struction of the ivall - - Legal consequences f0r States other than Israel - Erga omnes churacter of' certain obligations viohted by Israel Obligation for al1 States not to recognizcJ the illegc lsituation resulting fi orn construction uf' the itlall and not to render aid or a s istancein maintaining the situation creuted by such construction Obligationfi ral1 States while respecting the Charter and international luii to see to it that an y inîpediment resulting from the construction of the ivu11 to the exercise by the Palestinian people of its right to selfdetermination is brought to an end Obligation fi r al1 States parties to the Fourtli Geneva Convention while respecting the Charter and international law to ensure compliunce by lsrael with international humunitarian luiv us embodied in that ConNer d jOr the United Nations and especiully the General Assembly vention and the Security Couni il to consider i vhutfurther action is required to bring to an end the illegal situution re sulting from the construction qf' the ivall and its associated rkgime taking due account cd' the A d v i s o j Opinion - - - - Construction qf'the vall niust be pluced in a more general context Obligation of'Israel and Palestine scrupulously to observe international humanitarian a Implementation in goodfuith f ' a l lrelevant Security Council resolutions in particz lar re olutiorls242 lY67 and 338 1973 Roaclmap Need for Ifforts to be encouruged » th a vieiv to achieving as soon as possible on the basis of international Itztv u negotiated solution to the outstanding problerns and the establishme itof'a Palestiniun State ivith peacc and security for al1 in the region - - - - CONSTRUCTION OF A WALL ADVISORY O P I N I O N 139 ADVISORY OPINION Present President SHI Vice-President RANJEVA Judges GUILLAUME KOROMA VERESHCHETIN HIUUINS PARRA-ARANUUREN KOOIJMANS REZEK AL-KHASAWPIEH BUERUENTHAL ELARABY OWADA SIMMA TOMKA Re pistrur COUVREUR On the legal consequences of the construction of a wall in the Occupied Palestinian Territory composed as above giivs the following idvisury Opinion 1 The question on which the advisory opinion of the Court has been requested is set forth in resolution ES-10114 adopted by the General Assembly of the United Nation hereinafter the General Assembly on 8 December 2003 at its Tenth Em rrgencySpecial Session By a letter dated 8 December 2003 and received in the Registry by facsimile on 10 December 2003 the original of which reached the Registry subsequently the Secretary-General of the United Nations officially communicated to the Court the decision taken by the General Assen blyto submit the question for an advisory opinion Certified true copies of the English and French versions of resolution ES-10114 were enclosed with the letter The resolution reads as follows The Generul lssemhiy Reuffirming its resolution ES-10113 of 21 October 2003 Guidcld by the principles of the Charter of the United Nations Awure of the established principle of international law on the inadmissibility of the acquisition of territory by force Awcire ulso that developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples is among the purpoises and principles of the Charter of the United Nations Reculling relevant General Assembly resolutions including resolution 181 11 of 29 November 1947 which partitioned mandated Palestine into two States one Arab and one Jewish Reculling ulso the resolutions of the tenth emergency special session of the General Assernbly Reculling jurthcr relevant Securily Council resolutions including resolutions 242 19671of 22 November 1967 338 1973 of 22 October 1973 267 1969 of 3 J ily1969 298 1971 of 25 September 1971 446 1979 of 22 March 1979 452 1979 of 20 July 1979 465 1980 of 1 March 1980 476 1980 of 30 June 1980 478 1980 of 20 August 1980 904 1994 of 18 March 1994 1073 1996 of 28 September 1996 1397 2002 of 12 March 2002 and 1515 2003 of 19 November 2003 ReufJlrrning the applicability of the Fourth Geneva Convention' as well as Additional Protocol 1 to the Geneva Conventions2 to the Occupied Palestinian Territory including East Jerusalem Reculling the Reguiations annexed to the Hague Convention Respecting the Laws and Customs of War on Land of 1907' Welcoming the convening of the Conference of High Contracting Parties to the Fourth Gerieva Convention on measures to enforce the Convention in the Occupied Palestinian Territory including Jerusalem at Geneva on 15 July 1999 E xprrssing i t s support for the declaration adopted by the reconvened Conference of High Contracting Parties at Geneva on 5 December 2001 Rec alling in particular relevant United Nations resolutions affirming that Israeli settleiments in the Occupied Palestinian Territory including East Jerusalem are illegal and an obstacle to peace and to economic and social developmerit as well as those demanding the complete cessation of settlement activities Reculling relevant United Nations resolutions affirming that actions taken by Israel the occupying Power to change the status and demographic composition of Occupied East Jerusalem have no legal validity and are nuIl and void Noting the agreements reached between the Government of Israel and the Palestine Liberation Organization in the context of the Middle East peace process Gruvelj concerisrd a t the commencement and continuation of construction by Israel the occupying Power of a wall in the Occupied Palestinian Territory including in and around East Jerusalem which is in departure from the Armistice Line of 1949 Green Line and which has involved the confiscation and destruction of Palestinian land and resources the disruption of the lives of thousands of protected civilians and the de facto annexation of large areas of territory and underlining the unanimous opposition by the international community to the construction of that wall Gruvc ly c oncer aed also at the even more devastating impact of the projected parts of the wall on the Palestinian civilian population and on the prospects for solbing the Palestinian-Israeli conflict and establishing peace in the region Wrlcoming the report of 8 September 2003 of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 19674 in particular the section regarding thi wall ' United Nations Treuty Series Vol 75 No 973 Ihid Vol 1125 N o 17512 See Carnegie Endowment for International Peace The Hague Conventions und Di clrircrtionsof'185 Y und IV07 New York Oxford University Press 1915 E CN 4 2004 6 CONSTR UCTIONOF A WALL ADVISORY OPINION 141 Afjrming the riecessity of ending the conflict on the basis of the twoState solution of israel and Palestine living side by side in peace and security based on the Armistice Line of 1949 in accordance with relevant Security Council and General Assembly resolutions Having receiveid witlz appreciation the report of the Secretary-General submitted in accclrdance with resolution ES-1011 35 Braring in mind that the passage of time further compounds the difficulties on the ground as Israel the occupying Power continues to refuse to comply with international law vis-à-vis its construction of the abovementioned wall with al1 its detrimental implications and consequences Decides in accordance with Article 96 of the Charter of the United Nations to request the International Court of Justice pursuant to Article 65 of the Statute of the Court to urgently render an advisory opinion on the fclllowing 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 thie 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 AIES- 10 248 Also enclosed with the letter were the certified English and French texts of the report of the Secretary-General dated 24 November 2003 prepared pursuant to General Assembly resolution ES-10113 AIES-101248 to which resolution ES- 10114 makes reference 2 By letters dated 10 December 2003 the Registrar notified the request for an advisory opinion to al1 States entitled to appear before the Court in accordance with Article 66 7paragraph 1 of the Statute 3 By a letter dated 11 December 2003 the Government of Israel informed the Court of its position on the request for an advisory opinion and on the procedure to be follo ved 4 By an Order of 19 December 2003 the Court decided that the United Nations and its Member States were likely in accordance with Article 66 paragraph 2 of the Statute to be able to furnish information on al1 aspects raised by the question subnlitted to the Court for an advisory opinion and fixed 30 January 2004 as the time-limit within which written statements might be submitted to it on the question in accordance with Article 66 paragraph 4 of the Statute By the same Order the Court further decided that in the light of resolution ES-10114 and the report of the Secretary-General transmitted with the request and takirig into account the fact that the General Assembly had granted Palestine a spircial status of observer and that the latter was co-sponsor of the draft resolution requesting the advisory opinion Palestine might also submit a written statement on the question within the above time-limit 5 By the aforesai'd Order the Court also decided in accordance with Article 105 paragraph 4 of the Rules of Court to hold public hearings during which oral statements and comments might be presented to it by the United Nations and its Member States regardless of whether or not they had submitted written statements and fixed 23 February 2004 as the date for the opening of the said hearings By the same Order the Court decided that for the reasons set out above see par xgraph 4 Palestine might also take part in the hearings Lastly it invited the United Nations and its Member States as well as Palestine to inform the Registry by 13 February 2004 at the latest if they were intending to take part in the above-mentioned hearings By letters of 19 December 2004 the Registrar informed them of the Court's decisions and transmitted to them a copy of the Order 6 Ruling on requests submitted subsequently by the League of Arab States and the Organization of the Islamic Conference the Court decided in accordance with Article 66 of its Statute that those two international organizations were likely to be able to furnish information on the question submitted to the Court and that consecquently they might for that purpose submit written statements within the time-limit fixed by the Court in its Order of 19 December 2003 and take part in the hearings 7 Pursuant to Article 65 paragraph 2 of the Statute the Secretary-General of the United Nations communicated to the Court a dossier of documents likely to throw light upon the question 8 By a reasoned Order of 30 January 2004 regarding its composition in the case the Court decided that the matters brought to its attention by the Government of Israel in a letter of 31 December 2003 and in a confidential letter of 15 January 2004 addressed to the President pursuant to Article 34 paragraph 2 of the Rules of Court were not such as to preclude Judge Elaraby from sitting in the case 9 Within the time-limit fixed by the Court for that purpose written statements were filed by in1 order of their receipt Guinea Saudi Arabia League of Arab States Egypt Cameroon Russian Federation Australia Palestine United Nations Jordan Kuwait Lebanon Canada Syria Switzerland Israel Yemen United States of America Morocco Indonesia Organization of the Islamic Conference France Italy Sudan South Africa Germany Japan Norway United Kingdoni Pakistan Czech Republic Greece Ireland on its own behalf lreland on behalf of the European Union Cyprus Brazil Namibia Malta Malaysia Netherlands Cuba Sweden Spain Belgium Palau Federated States of Micronesia Marshall Islands Senegal Democratic People's Republic of Korea Upon receipt of those statements the Registrar transmitted copies thereof to the United Nations and its Member States to Palestine to the League of Arab States and to the Organization of the lslamic Conference 10 Various commuinications were addressed to these latter by the Registry concerning in particullar the measures taken for the organization of the oral proceedings By comiriunications of 20 February 2004 the Registry transmitted a detailed timetable of the hearings to those of the latter who within the timelimit fixed for that purpose by the Court had expressed their intention of taking part in the afoi-ementioned proceedings 1 1 Pursuant to Article 106 of the Rules of Court the Court decided to make the written statements accessible to the public with effect from the opening of the oral proceedings 12 In the course o î hearings held from 23 to 25 February 2004 the Court heard oral statements in the following order by j'ur Palestine fur the Republic qf'South Africu H E Mr Nasser Al-Kidwa Ambassador Permanent Observer of Palestine to the United Nations Ms Stephanie Koury Member Negotiations Support Unit Counsel Mr James Crawford S C Whewell Professor of International Law University of Cambridge Member of the Institute of International Law Counsel and Advocate Mr Georges Abi-Saab Professor of International Law Graduate Institute of International Studies Geneva Member of the Institute of International Law Counsel and Advocate Mr Vaughan Lowe Chichele Professor of International Law University of Oxford Counsel and Advocate Mr Jean Salmon Professor Emeritus of International Law Université libre de Bruxelles Member of the lnstitute of International Law Counsel and Advocate H E Mr Aziz Pahad Deputy Minister for Foreign Affairs Head of Delegation Judge M R W Madlanga S C for the People's Dernocrutic Republic qf' Algeriu Mr Ahmed Law for the Kingdom of' Saurii Arabia H E Mr Fawzi A Shobokshi Ambassador and Permanent Representative of the Kingdom of Saudi Arabia to the United Nations in New York Head of Delegation H E Mr Liaquat Ali Choudhury Ambassador of the People's Republic of Bangladesh to the Kingdom of the Netherlands Mr Jean-Marc Sorel Professor at the University of Paris 1 Panthéon-Sorbonne H E Mr Abelardo Moreno Fernandez Deputy Minister for Foreign Affairs H E Mr Mohammad Jusuf Ambassador of the Republic of Indonesia to the Kingdom of the Netherlands Head of Delegation H R H Ambassador Zeid Ra'ad Zeid Al-Hussein Permanent Representative of the Hashemite Kingdom of Jordan to the United Nations New York Head of Delegation Sir Arthur Watts K C M G Q C Senior Legal fur the People's Republic of Bangladesh fur Belize for the Republic qf' Cuba for the Republic of Indonesia fur the Hushernite Kingdom c f' Jordan Laraba Professor of International Or the Repuhlic of' Madagascar jOr the Republic Senegul of' for the Repuhlic of' the Sudan fOr the League of Arah States for the Organization of the Islamic Conference Adviser to the Government of the Hashemite Kingdom of Jordan H E Mr Alfred Rambeloson Permanent Representative of Madagascar to the Office of the United Nations at Geneva and to the Specialized Agencies Head of Delegation H E Datuk Seri Syed Hamid Albar Foreign Minister of Malaysia Head of Delegation H E Mr Saliou Cissé Ambassador of the Republic of Senegal to the Kingdom of the Netherlands Head of Delegation H E Mr Abuelgasim A Idris Ambassador of the Republic of the Sudan to the Kingdom of the Netherlands Mr Michael Bothe Professor of Law Head of the Legal Team H E Mr Abdelouahed Belkeziz Secretary General of the Organization of the Islamic Conference Ms Monique Chemillier-Gendreau Professor of Public Law University of Paris VII-Denis Diderot as Counsel 13 When seised of a request for a n advisory opinion the Court must first consider whether it has jurisdiction to give the opinion requested and whether should the answer be in the affirmative there is any reason why it should decline to exercise any such jurisdiction see Legality cf the Threut or Use of niucleur Weapons Advisory Opinion I C J Reports 1996 1 p 232 para 10 14 The Court will thus first address the question whether it possesses jurisdiction to give the advisory opinion requested by the General Assembly on 8 December 2003 The competence of the Court in this regard is based on Article 65 paragraph 1 of its Statute according to which the Court may give a n dvisoryopinion on any legal question at the request of whatever body inay be authorized by o r in accordance with the Charter of the United Nations to make such a request The Court has already had occiision to indicate that It is a precondition of the Court's competence that the advisory opinion be requested by a n organ duly authorized to seek it under the Charter that it be requested on a legal question and that except in the case of the General Assembly o r the Security Council that question should be one arising within the scope of the activities of the requesting organ Application for Review of Judgemrnt No 273 of the United Nutions Administrative Tribunal Advisory Opinion I C J Repc rts1982 pp 333-334 para 21 12 15 It is for the Court to satisfy itself that the request for an advisory opinion comes from an organ or agency having competence to make it In the present instance the Court notes that the General Assembly which seeks the advisory opinion is authorized to do so by Article 96 paragraph 1 of the Charter which provides The General Assembly or the Security Councill may request the International Court of Justice to give an advisory opinion on any legal question 16 Although the above-mentioned provision states that the General Assembly may seek an advisory opinion on any legal question the Court has sometime in the past given certain indications as to the relationship between the question the subject of a request for an advisory opinion and the activities of the General Assembly Interpretution of Peace Treaties with Bulgaria Hu zguryand Romania I C J Reports 1950 p 70 Legu1it y qf the Threat or Use of Nucleur Weapons I C J Reports 1996 I pp 232 and 233 paras 11 and 12 17 The Court will so proceed in the present case The Court would observe that Article 10 of the Charter has conferred upon the General Assembly a competence relating to any questions or any matters within the scope of the Chairter and that Article 11 paragraph 2 has specifically provided it with competence on questions relating to the maintenance of international peace a ndsecurity brought before it by any Member of the United Nations and to make recommendations under certain conditions fixed by thoa Articles As will be explained below the question of the construction of the wall in the Occupied Palestinian Territory was brought before the General Assembly by a number of Member States in the context of the 1Tenth Emergency Special Session of the Assembly convened to deal with what the Assembly in its resolution ES-1012 of 25 April 1997 considered to constitute a threat to international peace and security 18 Before furthei- examining the problems of jurisdiction that have been raised in the present proceedings the Court considers it necessary to describe the events ithat led to the adoption of resolution ES-10114 by which the General P ssemblyrequested an advisory opinion on the legal consequences of the construction of the wall in the Occupied Palestinian Territory 19 The Tenth Eniergency Special Session of the General Assembly at which that resolution was adopted was first convened following the rejection by the Security Council on 7 March and 21 March 1997 as a result of negative votes by a permanent member of two draft resolutions concerning certain Israeli settlements in the Occupied Palestinian Territory see respectively SI19971199 and SIPV 3747 and SI19971241 and SlPV 3756 By a letter of 31 March 1997 the Chairman of the Arab Group then requested that an emergency special session of the General Assembly be convened pursuant to resolution 377 A V entitled 'Uniting for Peace' with a view to discussing Illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory letter dated 31 March 199'7 from the Permanent Representative of Qatar to the United Nations addressed to the Secretary-General AIES-1011 22 April 1997 Annex The rnajority of Members of the United Nations having concurred in this reqluest the first meeting of the Tenth Emergency Special Session of the General Assembly took place on 24 April 1997 see AIES-1011 22 April 1997 Resolution ES-1012 was adopted the following day the General Assembly thereby expressed its conviction that the repeated viiolation by Israel the occupying Power of international law and lits failure to comply with relevant Security Council and General A ssembly resolutions and the agreements reached between the parties undermine the Middle East peace process and constitute a threat to international peace and security and condemned the illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory in particular the construction of settlements in that territory The Tenth Emergency Special Session was then ad-journed temporarily and has since been reconvened 11 times on 15 July 1997 13 November 1997 17 March 1998 5 February 1999 18 October 2000 20 December 2001 7 May 2002 5 August 2002 19 September 2003 20 October 2003 and 8 December 2003 20 By a letter dated 9 October 2003 the Chairman of the Arab Group on behalf of the States Members of the League of Arab States requested an immediate meeting of the Security Council to consider the grave and ongoing Israeli violations of international law including international humanitarian law and to take the necessary measures in this regard letter ol-9 October 2003 from the Permanent Representative of the Syrian Arab Republic to the United Nations to the President of the Security Council Sl20031973 9 October 2003 This letter was accompanied by a draft resolution for consideration by the Council which condemned as illegal the construction by Israel of a wall in the Occupied Palestinian Territory departing from the Armistice Line of 1949 The Security Council heltl its 4841 st and 4842nd meetings on 14 October 2003 to consider the item entitled The situation in the Middle East including the Palestine question It then had before it another draft resolution proposed on the sam e day by Guinea Malaysia Pakistan and the Syrian Arab Republic which also condemned the construction of the wall This latter draft resolution was put to a vote after an open debate and was not adopted owing to the negative vote of a permanent member of the Council SlPV 484 1 and SlPV 4842 On 15 October 2003 the Chairman of the Arab Group on behalf of CONSTRUCTION OF A WALL ADVISORY OPINION 147 the States Members of the League of Arab States requested the resumption of the Tenth Eniergency Special Session of the General Assembly to consider the item of Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory AIES-101242 this request was supported by the Non-Aligned Movement AIES-101243 and the Organization of the Islamic Conference Group at the United Nations AIES-101244 The Tenth Emergency Special Session resumed its work on 20 October 2003 21 On 27 October 2003 the General Assembly adopted resolution ES-10113 by which it demanded that Israel stop and reverse the construction of the wall in the Occupied Palestinian Territory including in and around East Jerusalem which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of international law para 1 In paragraph 3 the Assembly requested the Secretary-General to report on compliance with the resolution periodically with the first report on compliance with paragraph 1 of that resolution to be submitted within one month The Tenth Emergency Special Session was temporarily adjourned and on 24 November 2003 the report of the Secretary-General prepared pursuant to General Assembly resolution ES-10113 hereinafter the report of the Secretary-General was issued AIES- 101248 22 Meanwhile or1 19 November 2003 the Security Council adopted resolution 1515 2003 by which it Endorse d the Quartet Performance-based Roadmap to a Permanent Two-State Solution to the IsraeliPalestinian Conflict The Quartet consists of representatives of the United States of America the European Union the Russian Federation and the United Nations That resolution Cull ed on the parties to fulfil their obligations under the Roadmap in cooperation with the Quartet and to achieve the vision of two States living side by side in peace and security Neither the Roadrnap nor resolution 1515 2003 contained any specific provision coricerning the construction of the wall which was not discussed by the Security Council in this context 23 Nineteen days later 011 8 December 2003 the Tenth Emergency Special Session of the General Assenlbly again resumed its work following a new request by the Chairman of the Arab Group on behalf of the States Members of tlhe League of Arab States and pursuant to resolution ES-10113 letter dated I December 2003 to the President of the General Assembly from Ihe Chargé d'affaires a i of the Permanent Mission CONSTR UCTION OF A WALL ADVISORY OPINION 148 of Kuwait to the Uniited Nations AIES-101249 2 December 2003 It was during the meeting convened on that day that resolution ES-10114 requesting the present advisory opinion was adopted 24 Having thus recalled the sequence of events that led to the adoption of resolution ES-10114 the Court will now turn to the questions of jurisdiction that have been raised in the present proceedings First Israel has alleged that given the active engagement of the Security Council with the situation in the Middle East including the Palestinian question the General Assembly acted ultra vires under the Charter when it requested an advisory opinion on the legal consequences of the construction of the wall in the Occupied Palestinian Territory 25 The Court has already indicated that the subject of the present request for an advisory opinion falls within the competence of the General Assembly under the Charter see paragraphs 15-17 above However Article 12 paragrapli 1 of the Charter provides that While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests A request for an advisory opinion is not in itself a recommendation by the General Assembly with regard to a dispute or situation It has however been argued in this case that the adoption by the General Assembly of resolution ES-10114 was ultra vires as not in accordance with Article 12 The Court thus considers that it is appropriate for it to examine the significance of that Article having regard to the relevant texts and the practicii of the United Nations 26 Under Article 24 of the Charter the Security Council has primary responsibility for the maintenance of international peace and security In that regard it cari impose on States an explicit obligation of compliance if for example it issues an order or command under Chapter VII and can to that end require enforcement by coercive action Certuin E ipcnsc s of the United Nations Article 17 paragruph 2 cf the Charter Advisory 3pinion I C J Reports 1962 p 163 However the Court would emphasize that Article 24 refers to a primary but not necessarily exclusive competence The General Assembly does have the power inter alia under Article 14 of the Charter to recommend measures for the peaceful adjustment of various situations i h i d Tlhe only limitation which Article 14 imposes on the General Assembly is the restriction found in Article 12 namely that the Assembly shoultl not recommend measures while the Security Council is dealing with the same matter unless the Council requests it to do so 1 C J Reports 1962 p 163 27 As regards the practice of the United Nations both the General Assembly and the lsecurity Council initially interpreted and applied Article 12 to the effect that the Assembly could not make a recommendation on a question concerning the maintenance of international peace and security while the matter remained on the Council's agenda Thus the Assembly during its fourth session refused to recommend certain measures on the questiori of Indonesia on the ground inter alia that the Council remained seised of the matter OfJicial Records of the General Assembly Fourth Session Ad Hoc Politicul Committee Summary Records of Meetings 27 Septemher-7 Decemher 1949 56th Meeting 3 December 1949 p 339 para 118 As for the Council on a number of occasions it deleted items from its agenda in order to enable the Assembly to deliberate on tlhem for example in respect of the Spanish question OfJicial Records of the Security Council First Year Second Series No 21 79th Meeting 4 November 1946 p 498 in connection with incidents on the Greek border OfJicial Records o j the Security Council Second Yeur No 89 202nd Meeting 15 September 1947 pp 2404-2405 and in regard to the I sland of Taiwan Formosa OJficial Records of the Security Council Fifith Year No 48 506th Meeting 29 September 1950 p 5 In the case of the Republic of Korea the Council decided on 31 January 1951 to remove the relevant item from the list of matters of which it was seised in order to enable the Assembly to deliberate on the matter Oficial Records of the Security Council Sixth Y e u SlPV 531 53 1st Meeting 3 1 Jainuary 1951 pp 11-12 para 57 However this interpretation of Article 12 has evolved subsequently Thus the General Assembly deemed itself entitled in 1961 to adopt recommendations in the rnatter of the Congo resolutions 1955 XV and 1600 XVI and in 1963 in respect of the Portuguese colonies resolution 1913 XVIII while those cases still appeared on the Council's agenda without the Council having adopted any recent resolution concerning them In response to a question posed by Peru during the twenty-third session of the GeneraI Assembly the Legal Counsel of the United Nations confirmed that the Assembly interpreted the words is exercising the functions in Article 12 of the Charter as meaning is exercising the functions at this moment General Assembly Twenty-third Session Third Committee 1637th meeting AlC 3lSR 1637 para 9 Indeed the Court notes that there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security see for example th matters involving Cyprus South Africa Angola Southern Rhodesia and more recently Bosnia and Herzegovina and Somalia It is often the case that while the Security Council has tended to focus on the aspects of such matters related to international peace and security the General Assembly has taken a broader view considering also their humanitarian social and economic aspects 28 The Court considers that the accepted practice of the General Assembly as it has evolved is consistent with Article 12 paragraph 1 of the Charter The Court is accordingly of the view that the General Assembly in adopting resolution ES-10114 seeking an advisory opinion from the Court did not contravene the provisions of Article 12 paragraph 1 of the Charter The Court concludes that by submitting that request the General Assembly did not exceed its competence 29 It has however been contended before the Court that the present request for an advisory opinion did not fulfil the essential conditions set by resolution 377 A i V under which the Tenth Emergency Special Session was convened and has continued to act In this regard it has been said first that The Security Council was never seised of a draft resolution proposing that tlhe Council itself should request an advisory opinion from the Court on the matters now in contention and that specific issue having thus never been brought before the Council the General Assembly could not irely on any inaction by the Council to make such a request Secondly it has been claimed that in adopting resolution 1515 2003 which endorsed the Roadmap before the adoption by the General Assembly of resolution ES-10114 the Security Council continued to exercise its responsibility for the maintenance of international peace and security and that as a result the General Assembly was not entitled to act in its place The validity of the procedure followed by the Tenth Emergency Special Session especially the Session's rolling character and the fact that its meeting was convened to deliberate on the request for the advisory opiriion at the same time as the General Assembly was meeting in regular session has also been questioned 30 The Court would recall that resolution 377 A V States that if the Security Council because of lack of unanimity of the permanent members fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace breach of the peace or act of aggression the General Assernbly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures The procedure provided for by that resolution is premised on two conditions namely that the Council has failed to exercise its primary responsibility for the maintenance of international peace and security as a result of a negative vote of one or more permanent members and that the situa- tion is one in which there appears to be a threat to the peace breach of the peace or act of aggression The Court must accordingly ascertain whether these conditions were fulfilled as regards the convening of the Tenth Emergency Special Session of the General Assembly in particular at the time when the Assembly decided to request an advisory opinion from the Court 3 1 In the light of the sequence of events described in paragraphs 18 to 23 above the Court observes that at the time when the Tenth Emergency Special Session was convened in 1997 the Council had been unable to take a decision on the case of certain Israeli settlements in the Occupied Palestinian Territory due to negative votes of a permanent member and that as indicated in resolution ES-1012 see paragraph 19 above there existed a threat to international peace and security The Court further notes that on 20 October 2003 the Tenth Emergency Special Session of the General Assembly was reconvened on the same basis as in 1997 see the statements by the representatives of Palestine and Israel AIES-IOlPV 21 pp 2 and 5 after the rejection by the Security Council on 14 October 2003 again as a result of the negative vote of a permanent member of a draft resolution concerning the construction by lisrael of the wall in the Occupied Palestinian Territory The Court considers that the Security Council again failed to act as contemplated in resolution 377 A V It does not appear to the Court that the situation in this regard changed between 20 October 2003 and 8 December 2003 since the Council neither discussed the construction of the wall nor adopted any resolution in that connection Thus the Court is of the view that up to 8 December 2003 the Council had not reconsidered the negritive vote of 14 October 2003 It follows that during that period the Tenth Emergency Special Session was duly reconvened and could properly be seised under resolution 377 A V of the matter now before the Court 32 The Court would also emphasize that in the course of this Emergency Special Session the General Assembly could adopt any resolution falling within the suibject-matter for which the Session had been convened and otherwise within its powers including a resolution seeking the Court's opinion It is irrelevant in that regard that no proposal had been made to the Security Council to request such an opinion 33 Turning now to alleged further procedural irregularities of the Tenth Emei-gency Special Session the Court does not consider that the rolling character of that Session namely the fact of its having been convened in April 1997 and reconvened 1 1 times since then has any relevance with regard to the validity of the request by the General Assembly The Court observes in that regard that the Seventh Emergency Special Session of the General Assembly having been convened on 22 July 1980 was subsequently reconvened four times on 20 April 1982 25 June 1982 16 August 1982 and 24 September 1982 and that the validity of C0NSTR UCTION OF A W A L L ADVISOKY OPINION 152 resolutions or decisions of the Assembly adopted under such circumstances was never disputed Nor has the validity of any previous resolutions adopted during the Tenth Emergency Special Session been challenged 34 The Court alslo notes the contention by lsrael that it was improper to reconvene the Tenth Emergency Special Session at a time when the regular session of the General Assembly was in progress The Court considers that while it may not have been originally contemplated that it would be appropriate for the General Assembly to hold simultaneous emergency and regular sessions no rule of the Organization has been identified which wo ildbe thereby violated so as to render invalid the resolution adopting the present request for an advisory opinion 35 Finally the 'Tenth Emergency Special Session appears to have been convened in accordance with Rule 9 hl of the Rules of Procedure of the General Asseinbly and the relevant meetings have been convened in pursuance of the applicable rules As the Court stated in its Advisory Opinion of 21 June 1971 concerning the Legul Consc quentesfor Stutes of the Continued Presence of' South Afiicu in Namibiu Soutlz West Africa notitithstan fingSecurity Council Resolution 276 1970 a resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ's rules of procedure and is declared by its President to have been so passed must be presumed to have been validly adopted 1 C J Reports 1971 p 22 para 20 In view of the foregoing the Court cannot see any reason why that presumption is to be rebutted in the present case 36 The Court now turns to a further issue related to jurisdiction in the present proceedings namely the contention that the request for an advisory opinion by the General Assembly is not on a legal question within the meaning of Article 96 paragraph 1 of the Charter and Article 65 paragraph 1 of the Statute of the Court It has been contended in this regard that for a question to constitute a legal question for the purposes of these two provisions it must be reasonably specific since otherwise it would not be amenable to a response by the Court With regard to the request made in the present advisory proceedings it has been argued that it is not possit leto determine with reasonable certainty the legal meaning of the question asked of the Court for two reasons First it has been argued that the question regarding the legal consequences of the coinstruction of the wall only allows for two possible interpretations each of which would lead to a course of action that is precluded for the Court The question asked could first be interpreted as a request for the Court to find that the construction of the wall is illegal and then to give its opinion on the legal consequences of that illegality In this case it has been contended the Court should decline to respond to the question asked for a variety of reasons some of which pertain to jurisdiction and others rather to the issue of propriety As regards jurisdiction it is said thait if the General Assembly had wished to obtain the view of the Court oin the highly complex and sensitive question of the legality of the construction of the wall it should have expressly sought an opinion to that effect cf Exchange of Greek and Turkisk Populations Advisory Opinion 1925 P C I J Series B No 10 p 17 A second possible interpretation of the request it is said is that the Court should assume that the coristruction of the wall is illegal and then give its opinion on the legal consequences of that assumed illegality It has been contended that the Court should also decline to respond to the question on this hypothesis since the request would then be based on a questionable assumption and since in any event it would be impossible to rule on the legal consequenciis of illegality without specifying the nature of that illegality Secondly it has been contended that the question asked of the Court is not of a legal character because of its imprecision and abstract nature In particular it has been argued in this regard that the question fails to specify whether the Court is being asked to address legal consequences for the General Assembly or some other organ of the United Nations Member States of the United Nations Israel Palestine or some combination of the above or some different entity 37 As regards the alleged lack of clarity of the terms of the General Assembly's request a ndits effect on the legal nature of the question referred to the Court the Court observes that this question is directed to the legal consequenc s arising from a given factual situation considering the rules and principles of international law including the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 hereinafter the Fourth Geneva Convention and relevant Security Council and General Assembly resolutions The question submitted by the Gerieral Assembly has thus to use the Court's phrase in its Advisory Opinion on Western Suharu been framed in terms of law and raise s problems of international law it is by its very nature susceptible of a rep1 y based on law indeed it is scarcely susceptible of a reply otherwise than on the basis of law In the view of the Court it is indeed a question of a legal character see Western Sahara Advisory Opinion I IJ Reports 1975 p 18 para 15 38 The Court would point out that lack of clarity in the drafting of a question does not deprive the Court of jurisdiction Rather such uncer- CONSTRUCTION OF A WALL ADVISORY OPINION 154 tainty will require clarification in interpretation and such necessary clarifications of interpretirtion have frequently been given by the Court In the past both the Permanent Court and the present Court have observed in some cases that the wording of a request for an advisory opinion did not accurately state the question on which the Court's opinion was being soughi Interpretation of the Greco-Turkish Agreement of 1 Decetnher 1926 Final Protucol Article I V Advisory Opinion 1928 P C I J Series B No 16 I pp 14-16 or did not correspond to the true legal question ' under consideration Interpretation of' the Agreement o f 2 5 March 1951 between the W H O und Egypt Advisory Opinion I C J Reports 1980 pp 87-89 paras 34-36 The Court noted in one case that the q u e d o n put to the Court is on the face of it at once infelicitously expressed and vague Applic'ution for Reviel qf Judgemetzt No 273 of the United Nations Administrative Tribunal Advisory Opinion I C ' J Reports 1982 p 348 para 46 Consequently the Court has often been required to broaden interpret and even reformulate the questions put see the three Opinions cited above see also Jaivc rzinu Advisory Opinion 1923 P C I J Series B No 8 A ln is sihilityof Hearings of Petitioners hy the Committee on South We st A fricu Advisory Opinion I C J Reports 1956 p 25 Certain E prnsrsof' the United Nations Article 17 paragraph 2 of the Churter Advisory Opinion I C J Reports 1962 pp 157-162 In the present instance the Court will only have to do what it has often done in the past namely identify the existing principles and rules interpret them and apply them thus offering a reply to the question posed based on law Legal'ity of' the Threat or Usr of Nuclear Wrupons I C J Rc ports1996 I p 234 para 13 39 In the present instance if the General Assembly requests the Court to state the legal consequences arising from the construction of the wall the use of these terms necessarily encompasses an assessment of whether that constru ctionis or is not in breach of certain rules and principles of international law Thus the Court is first called upon to determine whether such rules and principles have been and are still being breachcd by the conritruction of the wall along the planned route 40 The Court does not consider that what is contended to be the abstract nature of the question posed to it raises an issue of jurisdiction Even when the matter was raised as an issue of propriety rather than one ofjurisdiction in the case concerning the Legality o f t h e Threat or Use of Nuclear Wpaponns the Court took the position that to contend that it should not deal with a question couched in abstract terms is a mere affirmation devoid oif any justification and that the Court may give an advisory opinion on any legal question abstract or otherwise I C J Reports 1996 1 p 236 para 15 referring to Conditions of Admissiot of LI Stute to Mc mbershipin the United Nations Article 4 of the Churter Advisory Opinion 1948 I C J Reports 1947-1948 p 61 Effitct of A vards of Compensation Made by the United Nations Administrative Tribunul Advisoty Opiniotz I C J Reports 1954 p 51 and Legul Con- CONSTRUCTION OF A WALL ADVISORY OPINION 155 sequences for States of the Continued Presence of South Africa in Namibia South West Africa notwithstanding Security Council Resolution 276 1970 Advisory Opinion 1 C J Reports 1971 p 27 para 40 In any event the Court considers that the question posed to it in relation to the legal consequences of the construction of the wall is not an abstract one and moreover that it would be for the Court to determine for whom any such consequences arise 41 Furthermore the Court cannot accept the view which has also been advanced in the present proceedings that it has no jurisdiction because of the political character of the question posed As is clear from its long-standing jurisprudence on this point the Court considers that the fact that a legal question also has political aspects as in the nature of things is the case with so many questions which arise in international life does not suf ce to deprive it of its charac ter as a legal question and to deprive the Court of a competence expressly conferred on it by its Statute Application for Review of Judgement No 158 of the United Nations Administrative Tribunal Advisory Opinion I C J Reports 1973 p 172 para 14 Whatever its political aspects the Court cannot refuse to admit the legal char- acter of a question which invites it to discharge an essentially judicial task namely an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by inter- national law cf Conditions of Admission ofa State to Membership in the United Nations Article 4 of the Charter Advisory Opinion 1948 Reports 1947 1948 pp 61 62 Competence of the Gen- eral Assembly for the Admission ofa State to the United Nations Advisory Opinion 1 C J Reports 1950 pp 6-7 Certain Expenses of the United Nations Article 17 paragraph 2 of the Charter J Advisory Opinion I C J Reports 1962 p 155 Legality of the Threat or Use of Nuclear Weapons Advisory Opinion I C J Reports 1996 I p 234 para 13 In its Opinion concerning the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt the Court indeed emphasized that in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles appli- cable with respect to the matter under debate Reports 1980 p 87 para 33 Moreover the Court has af rmed in its Opinion on the Legality of the Threat or Use of Nuclear Weapons that the political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of no relevance in the establishment of its jurisdiction to give such an opinion I C J Reports 1996 I p 234 para 13 23 The Court is of the view that there is no element in the present proceedings which could leald it to conclude otherwise 42 The Court a'ccordingly has jurisdiction to give the advisory opinion requested by resolution ES-10114 of the General Assembly 43 It has been contended in the present proceedings however that the Court should de clineto exercise its jurisdiction because of the presence of specific aspects of the General Assembly's request that would render the exercise of the Court's jurisdiction improper and inconsistent with the Court's judicial function 44 The Court has recalled many times in the past that Article 65 paragraph 1 of its Statute which provides that The Court may give an advisory opinion emphasis added should be interpreted to mean that the Court has a discretionary power to decline to give an advisory opinion even if the conditions of jurisdiction are met Legulity ef' the Tlzreut or Use of' Nucleur Weupons Advisory Opinion I C J Reports 1996 I pp 234-2115 para 14 The Court however is mindful of the fact that its answer 'to a request for an advisory opinion represents its participation in the activities of the Organization and in principle should not be refuse dm Interprctution of' Pcuce Treuties ivith Bulguriu Hungury und Ronîunia First Plîu se Advisory Opinion I C J Reports 1950 p 71 see also for example D ij ijrence Relating to Inimunity jiorn Legul Process of u Special Rapporteur of' tlie Commission on Hutnan Riglîts Advisorj Opinion I C J Reports 1999 I pp 78-79 para 29 Given its responsibillities as the principal judicial organ of the United Nations Article 92 of the Charter the Court should in principle not decline to give an advisory opinion In accordance with its consistent jurisprudence only compelling reasons should lead the Court to refuse its opinion Certain Expcnses of' tlîe United Nutions Article 17 purugrupIz 2 of' the Churtcr Advi sorj Opinion I C J R port s1962 p 155 see also for exampli Diffi rence Rrluting to Imnzunity fion Lrgul Process f a Sprcial Rczpporteur oj' tlzc Corntni s sion on Hunzun Rights Advi sory Opinion I C J Reports 1999 I pp 78-79 para 29 The present Coui-t has never in the exercise of this discretionary power declined to respond to a request for an advisory opinion Its decision not to give the advisory opinion on the Legality of tlîe Use h j u Stute of' Nuclear Ciéuporz s in Armed ConJiet requested by the World Health Organization was based on the Court's lack of jurisdiction and not on consideratioris of judicial propriety see I C J Reports 1996 I p 235 para 14 Orily on one occasion did the Court's predecessor the Permanent Court of International Justice take the view that it should not reply to a question put to it Status of Eastern Curelia Advisory Opinion 1923 P C I J Series B No 5 but this was due to the very particular circumstances of the case among which were that the question directly concerned an already existing dispute one of the States parties to which was neither a party to the Statute of the Permanent Court nor a Member of the League of Nations objected to the proceedings and refused to take part in any way Legalitj of the Thrrat or Use of Nucleur Weupons 1 C J Reports 1996 I pp 235-236 para 14 45 These considerations do not release the Court from the duty to satisfy itself each time it is seised of a request for an opinion as to the propriety of the exercise of its judicial function by reference to the criterion of compelling reasons as cited above The Court will accordingly examine in detail and in the light of its jurisprudence each of the arguments presented to it in this regard 46 The first such argument is to the effect that the Court should not exercise its jurisdiction in the present case because the request concerns a contentious matter between Israel and Palestine in respect of which Israel has not conserited to the exercise of that jurisdiction According to this view the subject-matter of the question posed by the General Assembly is an integral part of the wider Israeli-Palestinian dispute concerning questions of terrorisrn security borders settlements Jerusalem and other related matters Israel has emphasized that it has never consented to the settlement of this wider dispute by the Court or by any other means of compulsory adjudication on the contrary it contends that the parties repeatedly agreed that these issues are to be settled by negotiation with the possibility of an agreement that recourse could be had to arbitration It is accordingly contended that the Court should decline to give the present Opinion on the basis inter uliu of the precedent of the decision of the Permanent Couirt of International Justice on the Stutus of Eustern Careliu 47 The Court observes that the lack of consent to the Court's contentious jurisdiction by interested States has no bearing on the Court's jurisdiction to give an advisory opinion In an Advisory Opinion of 1950 the Court explained that The consent of States parties to a dispute is the basis of the Court's jurisdicition in contentious cases The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States The Court's reply ir only of an advisory character as such it has no binding force lit follows that no State whether a Member of the United Nations or not can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take The Court's Opinion is given not to the States but to the organ which is entitled to request it the reply of the Court itself an 'organ of the United Nations' represents its participation in the activities of the Organization and in principle should not be refused Interpretution of' Peuce Treuties ivith Bulgaria Hungur-v and Romuniu First Phase Aclvisorj Opinion I C' J Reports 1950 p 71 see also Western Sahara I C J Reports 1975 p 24 para 31 It followed from this that in those proceedings the Court did not refuse to respond to the request for an advisory opinion on the ground that in the particular circunnstances it lacked jurisdiction The Court did however examine the oplnosition of certain interested States to the request by the General Assembly in the context of issues of judicial propriety Commenting on its 1950 decision the Court explained in its Advisory Opinion on Western Sahuru fhat it had Thus recognized that lack of consent might constitute a ground for declining to give the opinion requested if in the circumstances of a given case considerations of judicial propriety should oblige the Court to refuse an opinion The Court continued In certain circumstances the lack of consent of an interested Stati may render the giving of an advisory opinion incompatible vvith the Court's judicial character An instance of this would be when the circumstances disclose that t o give a reply would hiave the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent We stc rn Suharu 1 C J Reports 1975 p 25 paras 32-33 u In applying that pririciple to the request concerning Western S u h rthe Court Sound that a legal controversy did indeed exist but one which had arisen during the proceedings of the General Assembly and in relation to matters with which the Assembly was dealing It had not arisen independently in bilateral relations ibid p 25 para 34 48 As regards the request for an advisory opinion now before it the Court acknowledges that Israel and Palestine have expressed radically divergent views on the legal consequences of Israel's construction of the wall on which the Court has been asked to pronounce However as the Court has itself noted Differences of views on legal issues have existed in practically every advisory proceeding Legul Conseyuences for Stutes oJ' the Corîtit urc Presence of South Afiicu in Numihiu South West A frica notizitlîstcrnding Security Council Resolution 276 1970 Advisory Opinion I C J Reports 1971 p 24 para 34 49 Furthermore the Court does not consider that the subject-matter of the General Asse mbly's request can be regarded as only a bilateral matter between 1srai l and Palestine Given the powers and responsibilities of the United Naltions in questions relating to international peace and security it is the Court's view that the construction of the wall must be deemed to be directlly of concern to the United Nations The responsibility of the United Nations in this matter also has its origin in the Mandate and the Partition Resolution concerning Palestine see paragraphs 70 and 71 below This resp'onsibility has been described by the General Assembly as a permanent responsibility towards the question of Palestine until the question is resolved in al1 its aspects in a satisfactory manner in accordance with international legitimacy General Assembly resolution 571107 of 3 December 2002 Within the institutional framework of the Organization thi s responsibility has been manifested by the adoption of many Security Council and General Assembly resolutions and by the creation of several subsidiary bodies specifically established to assist in the realization of the inalienable rights of the Palestinian people 50 The object of the request before the Court is to obtain from the Court an opinion which the General Assembly deems of assistance to it for the proper exercise of its functions The opinion is requested on a question which is of particularly acute concern to the United Nations and one which is loirated in a much broader frame of reference than a bilateral dispute In the circumstances the Court does not consider that to give an opinion would have the effect of circumventing the principle of consent to judicial settlement and the Court accordingly cannot in the exercise of its discretion decline to give an opinion on that ground 51 The Court now turns to another argument raised in the present proceedings in support of the view that it should decline to exercise its jurisdiction Some participants have argued that an advisory opinion from the Court on the legality of the wall and the legal consequences of its construction couild impede a political negotiated solution to the Israeli-Palestinian conflict More particularly it has been contended that such an opinion could undermine the scheme of the Roadmap see paragraph 22 above which requires Israel and Palestine to comply with certain obligations iin various phases referred to therein The requested opinion it lias been alleged could complicate the negotiations envisaged in the Roadmap and the Court should therefore exercise its discretion and decline to reply to the question put This is a submission of a kind which the Court has already had to consider several times iri the past For instance in its Advisory Opinion on the Legulity of the 7'hreut or Use of Nucleur Weapons the Court stated It has been submitted that a reply from the Court in this case might adversely affect disarmament negotiations and would therefore be contrary to the interest of the United Nations The Court is aware that no matter what might be its conclusions in any opinion it might give they would have relevance for the continuing debate on the matter iri the General Assembly and would present an additional element in the negotiations on the matter Beyond that the effect of the opinion is a matter of appreciation The Court has heard contrary positions advanced and there are no evident criteria by which it can prefer one assessment to another 1 C J Rc ports 1996 I p 23 ' para 17 see also Western Suhuru 1 C J Reports 1975 p 37 para 73 52 One participaint in the present proceedings has indicated that the Court if it were to give a response to the request should in any event do so keeping in mind two key aspects of the peace process the fundamental principle that permanent status issues must be resolved through negotiations and the need during the interini period for the parties to fulfil their security responsibilities so that the peace process can succeed 53 The Court is conscious that the Roadmap which was endorsed by the Security Coiuncil in resolution 1515 2003 see paragraph 22 above constitutes I negotiating framework for the resolution of the Israeli-Palestinian conflict It is not clear however what influence the Court's opinion might have on those negotiations participants in the present proceedings have expressed differing views in this regard The Court cannot regard this factor as a compelling reason to decline to exercise its jurisdictiisn 54 It was also put to the Court by certain participants that the question of the construction of the wall was only one aspect of the IsraeliPalestinian conf ict which could not be properly addressed in the present proceedings The Court does not however consider this a reason for it to decline to reply to the question asked The Court is indeed aware that the question of the wall is part of a greater whole and it would take this circumstance carefully into account in any opinion it might give At the same time the question that the General Assembly has chosen to ask of the Court is confinecl to the legal consequences of the construction of the wall and the Court would only examine other issues to the extent that they might be necessary to its consideration of the question put to it 55 Several participants in the proceedings have raised the further CONSTRUCTION OF A WALL ADVISORY OPINION 161 argument that the Court should decline to exercise its jurisdiction because it does not have at its disposa1 the requisite facts and evidence to enable it to reach its concluisions In particular Israel has contended referring to the Advisory Opinion on the Interpretation of Peace Treaties with Bulguria Hungary and Romuniu that the Court could not give an opinion on issues which raisi questions of fact that cannot be elucidated without hearing al1 parties to the conflict According to Israel if the Court decided to give the requested opinion it would be forced to speculate about essential fact s and make assumptions about arguments of law More specifically lsrael has argued that the Court could not rule on the legal consequences of the construction of the wall without enquiring first into the nature and scope of the security threat to which the wall is intended to respond and the effectiveness of that response and second into the impact of the construction for the Palestinians This task which would already be difficult in a contentious case would be further complicated in an advisory proceeding particularly since Israel alone possesses much of the riecessary information and has stated that it chooses not to address the merits Israel has concluded that the Court confronted with factual issues inipossible to clarify in the present proceedings should use its discretion and decline to conlply with the request for an advisory opinion 56 The Court observes that the question whether the evidence available to it is sufficient to give an advisory opinion must be decided in each particular instance In its Opinion concerning the Interpretation of' Peace Treaties with Bulg iria Hungary and Romania I C J Reports 1950 p 72 and again in its Opinion on the We stern Saharu the Court made it clear that what is decisive in these circumstances is 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 Western Suhara I C J Reports 1975 pp 28-29 para 46 Thus for instance in the proceedings concerning the Status of Eastern Carelia the Permanent Court of International Justice decided to decline to give an Opinion i izter uliu because the question put raised a question of fact which coulcl not be elucidated without hearing both parties Interpretation of Prace Treaties witl Bulgaria Hungary and Romania I C J Reports 1950 p 72 see Status o j Eastern Carelia P C I J Series B No 5 p 28 On the other hand in the Western Suhara Opinion the Court observed that it had been provided with very extensive documentary evidence of the relevant facts I C J Reports 1975 p 29 para 47 57 In the present instance the Court has at its disposal the report of the Secretary-General as well as a voluminous dossier submitted by him to the Court comprising not only detailed information on the route of the wall but also on its humanitarian and socio-economic impact on the Palestinian population The dossier includes several reports based on onsite visits by speciall rapporteurs and competent organs of the United Nations The Secreiary-General has further submitted to the Court a written statement updating his report which supplemented the information contained thierein Moreover numerous other participants have submitted to the Court written statements which contain information relevant to a response to the question put by the General Assembly The Court notes in particular that Israel's Written Statement although limited to issues of jurisdiction and judicial propriety contained observations on other matters including Israel's concerns in terms of security and was accompanied by corresponding annexes many other documents issued by the Israeli Government on those matters are in the public domain 58 The Court finds that it has before it sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly Moreover the circumstance that others may evaluate and interpret these facts in a subjective o r political manner can be no argument for a court of law to abdicate its judicial task There is therefore in the present case no lack of information such as to constitute a compelling reason for the Couri to decline to give the requested opinion 59 In their written statements some participants have also put forward the argument that the Court should decline to give the requested opinion on the legal consequences of the construction of the wall because such opinion would lack any useful purpose They have argued that the advisory opinions ol' the Court are to be seen as a means to enable an organ or agency in need of legal clarification for its future action to obtain that clarification In the present instance the argument continues the General Assembly would not need an opinion of the Court because it has already declarecl the construction of the wall to be illegal and has already determined the legal consequences by demanding that Israel stop and reverse its construction and further because the General Assembly has never made it cli ar how it intended to use the opinion 60 As is clear from the Court's jurisprudence advisory opinions have the purpose of furnishing to the requesting organs the elements of law necessary for them iri their action In its Opinion concerning Reservutions to the Convention on the Prevention und Punishment of the Crime of' Genocide the Court observed The object of this request for an Opinion is to guide the United Nations in respect of its own action I C J Reports 1951 p 19 Likewise in its Opinion on the Leg ilConsequences fiw States f ' t l z rCoiztinurr Presence f'Sout11 A fric UZ Nunzibia South CONSTRUCTION OF A WALL ADVISORY OPINION 163 West AfLica notwithstann'ing Security Council Resolution 276 1 9701 the Court noted The request is put forward by a United Nations organ with reference to its own decisions and it seeks legal advice from the Court on the consequences and implications of these decisions 1 C J Reports 1971 p 24 para 32 The Court found on another occasion that the advisory opinion it was to give would furnish the General Assembly with elements of a le gal character relevant to its further treatment of the decolonization of WJestern Sahara Western Sahara I C J Reports 1975 p 37 para 72 61 With regard to the argument that the General Assembly has not made it clear what use it would make of an advisory opinion on the wall the Court would recall as equally relevant in the present proceedings what it stated in its Opinion on the Legality of tlzc Tlzreat or Use of' Nuclear Wc upons Certain States have observed that the General Assembly has not explained to the Court for what precise purposes it seeks the advisory opinion Nevertheless it is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly for the performance of its functions The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs I C J Rcjports 1996 11 p 237 para 16 62 It follows that the Court cannot decline to answer the question posed based on the ground that its opinion would lack any useful purpose The Court canriot substitute its assessment of the usefulness of the opinion requested for that of the organ that seeks such opinion namely the General Assembly Furthermore and in any event the Court considers that the General Assembly has not yet determined al1 the possible consequences of its own resolution The Court's task would be to determine in a comprehensive manner the legal consequences of the construction of the wall while the General Assembly - and the Security Council - may then draw conclusions from the Court's findings 63 Lastly the Court will turn to another argument advanced with regard to the propriety of its giving an advisory opinion in the present proceedings Israel has contended that Palestine given its responsibility for acts of violence against Israel and its population which the wall is aimed at addressing cannot seek from the Court a remedy for a situation resulting from its owni wrongdoing In this context Israel has invoked the maxim n tlluscotnmodum capere potest le sua injuria propria which it considers to be as relevant in advisory proceedings as it is in contentious cases Therefore Israel concludes good faith and the principle of clean hands provide a conipelling reason that should lead the Court to refuse request the General Assembl ' 64 The Court does not consider this argument to be pertinent As was emphasized earlier it was the General Assembly which requested the advisory opinion and the opinion is to be given to the General Assembly and not to a specific State or entity 65 In the light of the foregoing the Court concludes not only that it has jurisdiction to give an opinion on the question put to it by the General Assembly see paragraph 42 above but also that there is no compelling reason lor it to use its discretionary power not to give that opinion 66 The Court will now address the question put to it by the General Assembly in resolution ES-10114 The Court recalls that the question is as follows 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 th12 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 67 As explained in paragraph 82 below the wall in question is a complex construction so that that term cannot be understood in a limited physical sense However the other terms used either by Israel fence or by the Secretary-General barrier are no more accurate if understood in the physical sense In this Opinion the Court has therefore chosen to use the terminology employed by the General Assembly The Court notes fiirthermore that the request of the General Assembly concerns the legal consequences of the wall being built in the Occupied Palestinian Territory including in and around East Jerusalem As also explained below see paragraphs 79-84 below some parts of the complex are being biiilt or are planned to be built on the territory of Israel itself the Court does not consider that it is called upon to examine the legal consequences arising from the construction of those parts of the wall 68 The question put by the General Assembly concerns the legal consequences of the construction of the wall in the Occupied Palestinian Territory However in order to indicate those consequences to the General Assembly the Court must first determine whether or not the construction of that wall breaches international law see paragraph 39 above It will CONSTP UCTION OF A WALL ADVISORY OPINION 165 therefore make this determination before dealing with the consequences of the construction 69 To do so the Court will first make a brief analysis of the status of the territory concerried and will then describe the works already constructed or in course of construction in that territory It will then indicate the applicable law before seeking to establish whether that law has been breached 70 Palestine was part of the Ottoman Empire At the end of the First World War a class A Mandate for Palestine was entrusted to Great Britain by the League of Nations pursuant to paragraph 4 of Article 22 of the Covenant which provided that Certain comimunities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone The Court recalls that in its Advisory Opinion on the Internationul Status c f'South West Africa speaking of mandates in general it observed that The Mandate vas created in the interest of the inhabitants of the territory and of humanity in general as an international institution with an international object - a sacred trust of civilization 1 C J Reports 1950 p 132 The Court also held in this regard that two principles were considered to t eof paramount importance the principle of nonannexation and the principle that the well-being and development o f peoples not yet able to govern themselves form ed 'a sacred trust of civilization' ihid p 131 The territorial bouindaries of the Mandate for Palestine were laid down by various instruments in particular on the eastern border by a British memorandum of 16 September 1922 and an Anglo-Transjordanian Treaty of 20 February 1928 71 In 1947 the United Kingdom announced its intention to complete evacuation of the m andated territory by 1 August 1948 subsequently advancing that date to 15 May 1948 In the meantime the General Assembly had on 29 November 1947 adopted resolution 181 II on the future government of Palestine which Recommends to the United Kingdom and to al1 other Members of the United Nations the adoption and implementation of the Plan of Partition of the territory as set forth in the resoluition between two independent States one Arab the other Jewish as well as the creation of a special international régime for the City of Jerusaleni The Arab population of Palestine and the Arab States rejected this plan contending that it was unbalanced on 14 May 1948 Israel proclaimed its independence on the strength of the General Assembly resolution armed conflict then broke out between Israel and a number of Arab States and the Plan of Partition was not implemented 72 By resolution 62 1948 of 16 November 1948 the Security Council decided that an armistice shall be established in al1 sectors of Palestine and called upon the parties directly involved in the conflict to seek agreement to this end Ir1 conformity with this decision general armistice agreements were concluded in 1949 between Israel and the neighbouring States through mediation by the United Nations In particular one such agreement was signecl in Rhodes on 3 April 1949 between Israel and Jordan Articles V and VI of that Agreement fixed the armistice demarcation line between Israeli and Arab forces often later called the Green Line owing to the colour i sedfor it on maps hereinafter the Green Line Article I I I paragraph 2 provided that No element of the military or para-military forces of either Party shall advance beyond or pass over for any purpose whatsoever the Armistice Demarcation Lines It was agreed in Article VI paragraph 8 that these provisions would not be interpreted as prejudicing in any sense an ultimate political settlement between the Parties It was also stated that the Armistice Demarcation Lines defined in articles V and VI of the Agreement were agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto The Demarcation Line was subject to such rectification as might be agreed upon by the parties 73 In the 1967 arrned conflict Israeli forces occupied al1 the territories which had constituted Palestine under British Mandate including those known as the West Bank lying to the east of the Green Line 74 On 22 November 1967 the Security Council unanimously adopted resolution 242 1967 which emphasized the inadmissibility of acquisition of territory by var and called for the Withdrawal of Israel armed forces from territories occupied in the recent conflict and Termination of al1 claims or states of belligerency 75 From 1967 oriwards Israel took a number of measures in these territories aimed at changing the status of the City of Jerusalem The Security Council after recalling on a number of occasions the principle that acquisition of territory by military conquest is inadmissible condemned those measuires and by resolution 298 1971 of 25 September 1971 confirmed in the clearest possible terms that al1 legislative and administrative actions taken by Israel to change the status of the City of Jerusalem including expropriation of land and properties transfer of populations and legislation aimed at the incorporation o î the occupied section are totally invalid and cannot change that status Later following the adoption by Israel on 30 July 1980 of the Basic Law making Jerusakm the complete and united capital of Israel the Security Council by resolution 478 1980 of 20 August 1980 stated that the enactment of that Law constituted a violation of international law and that al1 legislative and administrative measures and actions taken by Israel the occupying Power which have altered or purport to alter the character and status of the Holy City of Jerusalem are nuIl and void It fùrther decided not to recognize the 'basic law' and such other actions by Israel that as a reisult of this law seek to alter the character and status of Jerusalem 76 Subsequently a peace treaty was signed on 26 October 1994 between Israel and Jordan That treaty fixed the boundary between the two States with reference to the boundary definition under the Mandate as is shown in Annex 1 a without prejudice to the status of any territories that came under Israeli military government control in 1967 Article 3 paragrapl s 1 and 2 Annex 1 provided the corresponding maps and added thiit with regard to the territory that came under lsraeli military govei-nment control in 1967 the line indicated is the administrative bounclary with Jordan 77 Lastly a nunlber of agreements have been signed since 1993 between Israel and the Palestine Liberation Organization imposing various obligations on each Party Those agreements intu uliu required Israel to transfer to Palestinian authorities certain powers and responsibilities exercised in the Occupied Palestinian Territory by its military authoritjes and civil administratiion Such transfers have taken place but as a result of subsequent events they remained partial and limited 78 The Court would observe that under customary international law as reflected see paragraph 89 below in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 hereinafter the Hague Regulations of 1907 territory is considered occupied when it is actually placed under the airthority of the hostile army and the occupation extends only to the iterritory where such authority has been established and can be exercised The territories situated between the Green Line see paragraph 72 above and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan Under customary international law these were therefore occupied territories in which Israel had the status of occupying Power Subsequent events in these territories as described in paragraphs 75 to 77 above have done nothing to alter this situation All these territories including East Jerusalem remain occupied territories and Israel has continued to have the status of occupying Power 79 It is essentially in these territories that Israel has constructed or plans to construct the works described in the report of the SecretaryGeneral The Court will now describe those works basing itself on that report For developrnents subsequent to the publication of that report the Court will refer to complementary information contained in the Written Statement of the United Nations which was intended by the Secretary-General ta' supplement his report hereinafter Written Statement of the Secretary-General 80 The report of the Secretary-General States that The Government of Israel has since 1996 considered plans to halt infiltration into Israel from the central and northern West Bank para 4 According to that report a plan of this type was approved for the first time by the Israeli Cabinet in July 2001 Then on 14 April2002 the Cabinet adopted a decision for the construction of works forming what Israel describes as a security fence 80 kilometres in length in three areas of the West Bank The project was i aken a stage further when on 23 June 2002 the Israeli Cabinet approved the first phase of the construction of a continuous fence in the West Bank including East Jerusalem On 14 August 2002 it adopted the line of that fence for the work in Phase A with a view to the construction of a complex 123 kilometres long in the northern West Bank running from the Salem checkpoint north of Jenin to the settlement at Elkana Phase B of the work was approved in December 2002 It entailed a stretch of some 40 kilometres running east from the Salem checkpoint towards Beth Shean along the northern part of the Green Line as far as the Jordan Valley Furthermore on 1 October 2003 the Israeli Cabinet approved a full route which according to the report of the Secretary-General will form one continuous line stretching 720 kilometres along the West Bank A map showing completed and planned sections was posted on the Israeli Ministry of Defence website on 23 October 2003 According to the particulars provided on that map a continuous section Phase C encompassing a number of large settlements will link the north-western end of the security fence built around Jerusalem with the southern point of Phase A construction at Elkana According to the same map the security fence will run for 115 kilometres from the Har Gilo settlement near Jerusalem to the Carmel settlement south-east of Hebron Phase D According to Ministry of Defence documents work in this sector is due for completion in 2005 Lastly there are reharences in the case file to Israel's planned construction of a security fence following the Jordan Valley along the mountain range to the west 81 According to the Written Statement of the Secretary-General the first part of these works Phase A which ultimately extends for a distance of 150 kilometres was declared completed on 31 July 2003 It is reported that approximately 56 000 Palestinians would be encompassed in enclaves During this phase two sections totalling 19 5 kilometres were built around Jerusalem In November 2003 construction of a new section was begun along the Green Line to the West of the Nazlat IssaBaqa al-Sharqiya enclave which in January 2004 was close to completion at the time wheri the Secretary-General submitted his Written Statement According to the Written Statement of the Secretary-General the works carried out under Phase B were still in progress in January 2004 Thus an initial section of this stretch which runs near or on the Green Line to the village of al-Mutilla was almost complete in January 2004 Two additional sections diverge at this point Construction started in early January 2004 cm one section that runs due east as far as the Jordanian border Construction of the second section which is planned to run from the Green Line to the village of Taysir has barely begun The United Nations has however been informed that this second section might not be built The Written Statement of the Secretary-General further states that Phase C of the work which runs from the terminus of Phase A near the Elkana settlement t othe village of Nu'man south-east of Jerusalem began in December 2003 This section is divided into three stages In Stage C l between inter uliu the villages of Rantis and Budrus approximately 4 kilometres out of a planned total of 40 kilometres have been constructed Stage C2 which will surround the so-called Ariel Salient by cutting 22 kilom rtresinto the West Bank will incorporate 52 000 Israeli settlers Staee C3 is to involve the construction of two d e t h barriers one of these is to run north-south roughly parallel with the section of Stage C l currently under construction between Rantis and Budrus whilst the oither runs east-west along a ridge said to be part of the route of Highway 45 a motorway under construction If construction of the two barriers were completed two enclaves would be formed encompassing 72 000 Palestinians in 24 communities Further construction also started in late November 2003 along the south-eastern part of the municipal boundary of Jerusalem following a route that according to the Written Statement of the Secretary-General cuts off the suburbari village of El-Ezariya from Jerusalem and splits the neighbouring Abu Dis in two As at 25 January 2004 according to the Written Statement of the Secretary-General some 190 kilometres of construction had been completed covering Phase A and the greater part of Phase B Further construction in Phase C had begum in certain areas of the central West Bank and in Jerusalem Phase D lplanned for the southern part of the West Bank had not yet begun The Israeli Government has explained that the routes and timetable as described above are subject to modification In February 2004 for example an 8-kilometre section near the town of Baqa al-Sharqiya was CONSTRUCTION OF A WALL ADVISOKY OPINION 170 demolished and the planned length of the wall appears to have been slightly reduced 82 According to l he description in the report and the Written Statement of the Secretai-y-General the works planned or completed have resulted or will resuli in a complex consisting essentially of a fence with electronic sensors a ditch up to 4 metres deep a two-lane asphalt patrol road a trace road a strip of sand smoothed to detect footprints running parallel to the fence 5 a stack of six coils of barbed wire marking the perimeter of the complex 1 2 3 4 The complex has a width of 50 to 70 metres increasing to as much as 100 metres in some places Depth barriers may be added to these works The approximately 180 kilometres of the complex completed or under construction as of the time when the Secretary-General submitted his report included some 8 5 kilometres of concrete wall These are generally found where Palestiriian population centres are close to or abut Israel such as near Qalqiliya and Tulkarm or in parts of Jerusalem 83 According to the report of the Secretary-General in its northernmost part the wall as completed or under construction barely deviates from the Green Line It nevertheless lies within occupied territories for most of its course Tlhe works deviate more than 7 5 kilometres from the Green Line in certain places to encompass Settlements while encircling Palestinian population areas A stretch of 1 to 2 kilometres West of Tulkarm appears to run on the Israeli side of the Green Line Elsewhere on the other hand the planned route would deviate eastward by up to 22 kilometres In the case of Jerusalem the existing works and the planned route lie well beyond the Green Line and even in some cases beyond the eastern n unicipalboundary of Jerusalem as fixed by Israel 84 On the basis of that route approximately 975 square kilometres or 16 6 per cent of the West Bank would according to the report of the Secretary-General lit between the Green Line and the wall This area is stated to be home to 237 000 Palestinians If the full wall were completed as planned another 1 60 000 Palestinians would live in almost completely encircled communities described as enclaves in the report As a result of the planned route riearly 320 000 Israeli settlers of whom 178 000 in East Jerusalem would be living in the area between the Green Line and the wall 85 Lastly it should be noted that the construction of the wall has been accompanied by the creation of a new administrative régime Thus in October 2003 the Israeli Defence Forces issued Orders establishing the part of the West Bank lying between the Green Line and the wall as a Closed Area Residents of this area may no longer remain in it nor may non-residents eriter it unless holding a permit or identity card issued by the Israeli authorities According to the report of the SecretaryGeneral most residents have received permits for a limited period Israeli citizens Israeli permanent residents and those eligible to immigrate to Israel in accordance with the Law of Return may remain in or move freely to from and within the Closed Area without a permit Access to and exit from the Closed Area can only be made through access gates which are opened inifrequently and for short periods 86 The Court will now determine the rules and principles of international law which are relevant in assessing the legality of the measures taken by Israel Such rules and principles can be found in the United Nations Charter and certain other treaties in customary international law and in the relevant resolutions adopted pursuant to the Charter by the General Assembly and the Security Council However doubts have been expressed by Israel as to the applicability in the Occupied Palestinian Territory of certain rules of international humanitarian law and human rights instruiments The Court will now consider these various questions 87 The Court first recalls that pursuant to Article 2 paragraph 4 of the United Nations Charter All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of'any State or in any other manner inconsistent with the Purposes of the United Nations On 24 October 19713 the General Assembly adopted resolution 2625 XXV entitled Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States hereinafter resolution 2625 X YV in which it emphasized that No territorial acquisition resulting from the threat or use of force shall be recognized as legal As the Court stated in its Judgment in the case concerning Militury und Pururnilitur y Activities in und uguinst Nicuruguu Nicuruguu v United Stutrs oJ Arnericu the principles as to the use of force incorporated in the Charter reflect customary international law see 1 C J Reports 1986 pp 98-101 paras 187-190 the same is true of its corollary entailing the illegality of territorial acquisition resulting from the threat or use of force 88 The Court also notes that the principle of self-determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assennbly in resolution 2625 XXV cited above pursuant CONSTR UCTION OF A WALL ADVISORY OPINION 172 to which Every State has the duty to refrain from any forcible action which deprives peoples referred to in that resolution of their right to self-determination Article 1 common to the International Covenant on Economic Social and Cultural Rights and the International Covenant on Civil and Political Rights reaffirms the right of al1 peoples to self-determination and lays upon the States parties the obligation to promote the realization of that right and to respect it in conformity with the provisions of the United Nations Charter The Court would recall that in 1971 it emphasized that current developments in international law in regard to non-self-governing territories as enshrined in the Charter of the United Nations made the principle of self-determination applicable to al1 such territories The Court went on to state that These developments leave little doubt that the ultimate objective of the sacred trust referred to in Article 22 paragraph 1 of the Covenant of the League of Nations was the self-determination of the peoples concerned L q u l Consequences fi r Stutes of the Continued Presence f ' S o u t hAdfLicain Numihiu South West Ajrica notwithstunding Security Council Re solution 276 1970 Advisory Opinion 1 C J Reports 1971 p 31 paras 52-53 The Court has referred to this principle on a number of occasions in its jurisprudence ihid see also Western Suharu Advisory O oinion I C J report 1975 p 68 para 162 The Court indeed made it clear that the right of peoples to self-determination is today a right ergu omnes see Eust Timor Portugul v Austrulia Jucigment 1 C J Re oorts 1995 p 102 para 29 89 As regards international humanitarian law the Court would first note that Israel is not a party to the Fourth Hague Convention of 1907 to which the Hague liegulations are annexed The Court observes that in the words of the Corivention those Regulations were prepared to revise the general laws ancl customs of war existing at that time Since then however the International Military Tribunal of Nuremberg has found that the rules laid tiown in the Convention were recognised by al1 civilised nations and were regarded as being declaratory of the laws and customs of war Judg ientof the International Military Tribunal of Nuremberg 30 September and 1 October 1946 p 65 The Court itself reached the same conclusion when examining the rights and duties of belligerents in their conduct of rnilitary operations Legulity of the Threut or Use of Nucleur Weupons Advisory Opinion I C J Reports 1996 1 p 256 para 75 The Couri considers that the provisions of the Hague Regulations have become part of customary law as is in fact recognized by al1 the participants in the proceedings before the Court The Court also olbserves that pursuant to Article 154 of the Fourth Geneva Convention that Convention is supplementary to Sections II and III of the Hague Regulations Section III of those Regulations which concerns Military authority over the territory of the hostile State is particularly pertinent in the present case 90 Secondly with regard to the Fourth Geneva Convention differing views have been expressed by the participants in these proceedings Israel contrary to the great majority of the other participants disputes the applicability de jure of the Convention to the Occupied Palestinian Territory In particuilar in paragraph 3 of Annex 1 to the report of the Secretary-General entitled Summary Legal Position of the Government of Israel it is stated that Israel does not agree that the Fourth Geneva Convention is applicable to the occupied Palestinian Territory citing the lack of recognition of the territory as sovereign prior to its annexation by Jordan and Egypt and inferring that it is not a territory of a High Contracting Party as required by the Convention 91 The Court would recall that the Fourth Geneva Convention was ratified by Israel on 6 July 1951 and that Israel is a party to that Convention Jordan has also been a party thereto since 29 May 1951 Neither of the two States has nnade any reservation that would be pertinent to the present proceedings Furthermore Pa1t stine gave a unilateral undertaking by declaration of 7 June 1982 to apply the Fourth Geneva Convention Switzerland as depositary State considered that unilateral undertaking valid Tt conas a depositary - in a position to cluded however thkit it was not decide whether the request dated 14 June 19891 frorn the Palestine Liberation Movement in the name of the 'State of Palestine' to accede inter uliu to the Fourth Cieneva Convention can be considered as an instrument of accession 92 Moreover for the purpose of determining the scope of application of the Fourth Geneva Convention it should be recalled that under common Article 2 of the four Conventions of 12 August 1949 In addition to the provisions which shall be implemented in peacetime the present Convention shall apply to al1 cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties even if the state of war is not recognized by one of them The Convention shall also apply to al1 cases of partial or total occupation of tlhe territory of a High Contracting Party even if the said occupation meets with no armed resistance Although one of the Powers in conflict may not be a party to the present Convention the Powers who are parties thereto shall remain bound by it in their mutual relations They shall furthermore be bound by the Convention in relation to the said Power if the latter accepts and applies the provisions thereof 93 After the occuipation of the West Bank in 1967 the Israeli authorities issued an order No 3 stating in its Article 35 that the Military Court must apply the provisions of the Geneva Convention dated 12 August 1949 relative to the Protection of CONSTRUCTION OF A WALL ADVISORY OPINION 174 Civilian Personis in Time of War with respect to judicial procedures In case of conflict between this Order and the said Convention the Convention shall prevail Subsequently the Israeli authorities have indicated on a number of occasions that in fact they generally apply the humanitarian provisions of the Fourth Geneva Coinvention within the occupied territories However according to Israel's position as briefly recalled in paragraph 90 above that Convention is not applicable de jure within those territories because under Article 2 pariigraph 2 it applies only in the case of occupation of territories falling under the sovereignty of a High Contracting Party involved in an armetl conflict Israel explains that Jordan was admittedly a party to the Fourth Geneva Convention in 1967 and that an armed conflict broke out at that time between Israel and Jordan but it goes on to observe that the territories occupied by lsrael subsequent to that conflict had no1 previously fallen under Jordanian sovereignty It infers from this that that Convention is not applicable de jure in those territories According however 1 0 the great majority of other participants in the proceedings the Fourth Geneva Convention is applicable to those territories pursuant to Article paragraph 1 whether or not Jordan had any rights in respect thereof prior to 1967 94 The Court would recall that according to customary international law as expressed in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose Article 32 provides that Recourse may be had to supplementary means of interpretation including the preparatory work of the treaty and the circumstances of its conclusiori in order to confirm the meaning resulting from the application of article 31 or to determine the meaning when the interpretation acscording to article 3 1 leaves the meaning ambiguous or obscure or leads to a result which is manifestly obscure or unreasonabli See Oil PlutjOrms Islumic Republic of Iran v United Stutes r4f Americu Preliminury Objection Judgment 1 C J Reports 1996 I I p 812 para 23 see similarly KusikililSedudu Islund Botsct unulNumibia Judgrnent I C J Reports 1999 I I p 1059 para 18 and Sovereignty over Puluu Ligitan und Puluu Sipudun Indo ze siulMuluy sia Judgment 1 C J Reports 2002 p 645 para 37 95 The Court notes that according to the first paragraph of Article 2 of the Fourth Geneva Convention that Convention is applicable when two conditions are fulfilled that there exists an armed conflict whether or not a state of war has been recognized and that the conflict has arisen between two contracting parties If those two conditions are satis- fied the Convention applies in particular in any territory occupied in the course of the co nflict by one of the contracting parties The object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention as defined by the first paragraph by excluding therefrom territories not falling under the sovereignty of one of the contracting parties It is directed simply to making it clear that even if occupaition effected during the conflict met no armed resistance the Convention is still applicable This interpretation reflects the intention of the drafters of the Fourth Geneva Convention to protect civilians who find themselves in whatever way in the hands of the occupying Power Whilst the drafters of the Hague Regulations of 1907 were as much concerned with protecting the rights of a State whose territory is occupied as with protecting the inhabitants of that territory the drafters of the Fourth Geneva Convention sought to guarantee the protection of civilians in time of war regardless of the status of the occupied territories as is shown by Article 47 of the Convention That interpretation is confirmed by the Convention's travaux pr6parutoires The Conference of Government Experts convened by the International Committee of the Red Cross hereinafter ICRC in the aftermath of the Second World War for the purpose of preparing the new Geneva Convention recommended that these conventions be applicable to any armed conflict whether it is or is not recognized as a state of war by the parties and in cases of occupation of territories in the absence of any state of war Report on the Work of the Conference of Governrnent Experts for tlze Stuu of' the Conventions for tlze Protection of War Victirîz r Cenevu 14-26 April 1947 p 8 The drafters of the second paragraph of Article 2 thus had no intention when they inserted that paragraph into the Convention of restricting the latter's scope of application They were merely seeking to provide for cases of occupation without combat such as the occupation of Bohemia and Moravia by Germany in 1939 96 The Court w'ould moreover note that the States parties to the Fourth Geneva Convention approved that interpretation at their Conference on 15 July 1995 They issued a statement in which they reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory including East Jerusalem Subsequently on 5 December 2001 tlhe High Contracting Parties referring in particular to Article 1 of the Fourth Geneva Convention of 1949 once again reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestiniari Territory including East Jerusalem They further reminded the Contracting Parties participating in the Conference the parties to the conflict and the State of Israel as occupying Power of their respective obligations 97 Moreover the Court would observe that the ICRC whose special position with respect to execution of the Fourth Geneva Convention must be recognized and respected at al1 times by the parties pursuant to Article 142 of the Convention has also expressed its opinion on the interpretation to be given to the Convention In a declaration of 5 December 2001 it recalled 1hat the ICRC has always affirmed the de jure applicability of the Foui-th Geneva Convention to the territories occupied since 1967 by the State of Israel including East Jerusalem 98 The Court ncites that the General Assembly has in many of its resolutions taken a position to the same effect Thus on 10 December 2001 and 9 December 2003 in resolutions 56 60 and 58 97 it reaffirmed that the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Occupied Palestinian Territory including East Jerusalem and other Arab territories occupied by Israel since 1967 99 The Security Council for its part had already on 14 June 1967 taken the view in resolution 237 1967 that al1 the obligations of the Geneva Convention relative to the Treatment of Prisoners of War should be complied with by the parties involved in the conflict Subsequently on 15 Septizmber 1969 the Security Council in resolution 271 1969 called upon Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation Ten years later the Security Council examined the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 In resolution 446 1979 of 22 March 1979 the Security Council considered that those settlements had no legal validity and affirmed once more that the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967 including Jerusalem It called once nzore upon Israel as the occupying Power to abide scrupulously by that Convention On 20 December 1990 the Security Council in resolution 681 1990 urged the Governrrient of Israel to accept the de jure applicability of the Fourth Geneva Corivention to al1 the territories occupied by Israel since 1967 and to abide scrupulously by the provisions of the Convention It further called upon the high contracting parties to the said Fourth Geneva Corivention to ensure respect by Israel the occupying Power for its obligations under the Convention in accordance with article 1 thereof ' Lastly in resolutions 799 1992 of 18 December 1992 and 904 1994 of 18 March 1994 the Security Council reaffirmed its position concerning the applicability of the Fourth Geneva Convention in the occupied territories 100 The Court would note finally that the Supreme Court of Israel in a judgment dated 30 May 2004 also found that The military operations of the Israeli Defence Forces in Rafah CONSTI UCTIONOF A W A L L ADVISORY OPINION 177 to the extent ti-iey affect civilians are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907 and the Genev a Convention relative to the Protection of Civilian Persons in Time of War 1949 101 In view of the foregoing the Court considers that the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out The Court accordingly finds that that Convention is applicable in the Pa lestinian territories which before the conflict lay to the east of the Green Line and which during that conflict were occupied by Israel there being no need for any enquiry into the precise prior status of those territories 102 The participants in the proceedings before the Court also disagree whether the international human rights conventions to which Israel is party apply within the Occupied Palestinian Territory Annex 1 to the report of the Secretary-General States 4 Israel denies that the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights both of which it has signed are applicable to the occupied Palestinian territory It asserts that humanitarian law is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip whereas human rights treaties were intended for the protection of citizens from their own Government in times of peace Of the other participants in the proceedings those who addressed this issue contend that on the contrary both Covenants are applicable within the Occupied Palestinian Territory 103 On 3 October 1991 Israel ratified both the International Covenant on Economic Social and Cultural Rights of 19 December 1966 and the International C'avenant on Civil and Political Rights of the same date as well as the United Nations Convention on the Rights of the Child of 20 November 1989 It is a party to these three instruments 104 In order to determine whether these texts are applicable in the Occupied Palestinian Territory the Court will first address the issue of the relationship bei ween international humanitarian law and human rights law and then that of the applicability of human rights instruments outside national territory 105 In its Advisory Opinion of 8 July 1996 on the Legality of' the Threut or Use of' Nivcleur Weupons the Court had occasion to address the first of these issues in relation to the International Covenant on Civil CONSTlZUCTlON OF A W A L L ADVISORY OPINION 178 and Political Rights In those proceedings certain States had argued that the Covenant was directed to the protection of human rights in peacetime but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict 1 C J Reports 1996 I p 239 para 24 The Court rejected this argument stating that the protection of the International Covenant of Civil and Political Rights does not cease in times of war except by operation of Article 4 of the Covenant whereby certain provisions may be derogated fromi in a time of national emergency Respect for the right to life is not however such a provision In principle the right not arbitrarily io be deprived of one's life applies also in hostilities The test of what is an arbitrary deprivation of life however then falls to be determined by the applicable lex speciuli s namely the law applicable in armed conflict which is designed to regulate the conduct of hostilities Ibid p 240 para 25 106 More generailly the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict Save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights As regards i he relationship between international humanitarian law and human rights law there are thus three possible situations some rights may be excli sivelymatters of international humanitarian law others may be exclusively matters of human rights law yet others may be matters of both these branches of international law In order to answer the question put to it the Court will have to take into consideration both these branches of inlernational law namely human rights law and as lex speciuli international humanitarian law 107 It remains to be determined whether the two international Covenants and the Conbention on the Rights of the Child are applicable only on the territories of the States parties thereto or whether they are also applicable outside those territories and if so in what circumstances 108 The scope of application of the International Covenant on Civil and Political Rights is defined by Article 2 paragraph 1 thereof which provides Each State Party to the present Covenant undertakes to respect and to ensure to al1 individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant without distinction of aiiy kind such as race colour sex language religion political or other opinion national or social origin property birth or other status This provision cari be interpreted as covering only individuals who are both present within il State's territory and subject to that State's jurisdiction It can also be construed as covering both individuals present within a State's territory and those outside that territory but subject to that State's jurisdiction The Court will thus seek to determine the meaning to be given to this text 109 The Court would observe that while the jurisdiction of States is primarily territorial it may sometimes be exercised outside the national territory Considering the object and purpose of the International Covenant on Civil and Political Rights it would seem natural that even when such is the case States parties to the Covenant should be bound to comply with its provisions The constant practice of the Human Rights Committee is consistent with this Thus the Committee has Sound the Covenant applicable where the State exercises its jurisdiction on foreign territory It has ruled on the legality of acts by UI-uguayin cases of arrests carried out by Uruguayan agents in Brazil or Argentina case No 52 79 Lhpez Burgos v Uruguuj case No 56 79 Lilian Celiherti de Cusariego v Uruguay It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany case No 106181 Montero v Uruguay The r u w uprkparutoires 'c of the Covenant confirm the Committee's interpretation of Article 2 of that instrument These show that in adopting the wording choisen the drafters of the Covenant did not intend to allow States to escape from their obligations when they exercise jurisdiction outside their national territory They only intended to prevent persons residing abroad from asserting vis-à-vis their State of origin rights that do not fa11 within the competence of that State but of that of the State of residence see the discussion of the preliminary draft in the Commission on Human Rights ElCN 4lSR 194 para 46 and United Nations Officia1 record of the Generul Assernhly Tenth Session Annexes Al2929 Part II Chap V para 4 1955 110 The Court takes note in this connection of the position taken by Israel in relation to the applicability of the Covenant in its communications to the Human Rights Committee and of the view of the Committee In 1998 Israel stated that when preparing its report to the Committee it had had to face the question whether individuals resident in the occupied territories were indeed subject to Israel's jurisdiction for purposes of the application of the Covenant CCPR C SR 1675 para 21 Israel took the position that the Covenant and similar instruments did not apply directly to the current situation in the occupied territories ibid para 27 The Committee in its concluding observations after examination of the report expressecl concern at Israel's attitude and pointed to the long-standing presence of Israel in the occupied territories Israel's CONSTRUCTION OF 4 WALL ADVISOKY OPINION 180 ambiguous attitude towards their future status as well as the exercise of effective jurisdictiori by Israeli security forces therein CCPR C 79 Add 93 para 10 In 2003 in face of Israel's consistent position to the effect that the Covenant does not apply beyond its own territory notably in the West Bank and Gaza the Committee reached the following conclusiori in the current circumstances the provisions of the Covenant apply to the benefit of the population of the Occupied Territories for al1 conduct by the lState party's authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fa11 within the ambit of State responsibility of Israel under the principles of public international law CCPR C0 78 1SR para 11 111 In conclusioin the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory 112 The International Covenant on Economic Social and Cultural Rights contains no provision on its scope of application This may be explicable by the fact that this Covenant guarantees rights which are essentially territorial However it is not to be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction Thus Article 14 makes provision for transitional measures in the case of any State which at the time of becoining a Party has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education free of charge lt is not without relevance to recall in this regard the position taken by Israel in its reports to the Committee on Economic Social and Cultural Rights In its initial report to the Committee of 4 December 1998 Israel provided statistics indicating the enjoyment of the rights enshrined in the Covenant by Israeli settlers in the occupied Territories The Committee noted that according to Israel the Palestinian population within the same jurisdictional areas were excluded from both the report and the protection of the Covenant E C 12 1 Add 27 para 8 The Committee expressed its concerri in this regard to which Israel replied in a further report of 19 October 2001 that it has consistently maintained that the Covenant does not ipply to areas that are not subject to its sovereign territory and jurisdiction a formula inspired by the language of the International Covenant on Civil and Political Rights This position continued Israel is based on the well-established distinction between human rights and humanitarian law under international law It added the Committee's mandate cannot relate to events in the West Bank and the Gaza Strip inasmucli as they are part and parcel of the context of armed conflict as distinct from a relationship of human rights E 1990 6 Add 32 para 5 In view of these observations the Committee reiterated its concern about Israel's position and reaffirmed its view that the State party's obligations under the Covenant apply to al1 territories and populations under its effective control EIC 12IlIAdd 90 paras 15 and 31 For the reasons e uplained in paragraph 106 above the Court cannot accept Israel's view t would also observe that the territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power In the exercise of the powers available to it on this basis Israel is bouncl by the provisions of the International Covenant on Economic Social and Cultural Rights Furthermore it is under an obligation not to raise any obstacle to the exercise of such rights in those fields where competr nce has been transferred to Palestinian authorities 113 As regards the Convention on the Rights of the Child of 20 November 1989 that instrument contains an Article 2 according to which States Parties shall respect and ensure the rights set forth in the Convention to each child within their jurisdiction That Convention is therefore a pplicable within the Occupied Palestinian Territory 114 Having determined the rules and principles of international law relevant to reply to the question posed by the General Assembly and having ruled in particular on the applicability within the Occupied Palestinian Territory of international humanitarian law and human rights law the Court will now seek to ascertain whether the construction of the wall has vio1ai ed those rules and principles 115 In this regard Annex II to the report of the Secretary-General entitled Summary Cegal Position of the Palestine Liberation Organizatien States that Thie construction of the Barrier is an attempt to annex the territory contrary to international law and that The de facto annexation of land interferes with the territorial sovereignty and consequently with the right of the Palestinians to self-determination This view was echoed in certain of the written statements submitted to the Court and in the views expressed at the hearings Inter alia it was contended that The wall severs the territorial sphere over which the Palestinian people are entitled to exercise their right of self-determination and constitutes a violation of the legal principle prohibiting the acquisition of territory by the use of force In this connection it was in particular emphasized that tlhe route of the wall is designed to change the demographic composition of the Occupied Palestinian Territory including East Jerusalem by reinforcing the Israeli CONSTRUCTION OF A WALL ADVISORY OPINION 182 settlements illegally established on the Occupied Palestinian Territory It was further contended that the wall aimed at reducing and parcelling out the territorial sphere over which the Palestinian people are entitled to exercise their right of self-determination 116 For its part Israel has argued that the wall s sole purpose is to enable it effectively to combat terrorist attacks launched from the West Bank Furthermore Israel has repeatedly stated that the Barrier is a tem- porary measure see report of the Secretary-General para 29 It did so inter alia through its Permanent Representative to the United Nations at the Security Council meeting of 14 October 2003 emphasizing that the fence does not annex territories to the State of Israel and that Israel is ready and able at tremendous cost to adjust or dismantle a fence if so required as part of a political settlement p 10 Israel s Per- manent Representative restated this view before the General Assembly on 20 October and 8 December 2003 On this latter occasion he added As soon as the terror ends the fence will no longer be necessary The fence is not a border and has no political signi cance It does not change the legal status of the territory in any way PV 23 p 6 1 17 The Court would recall that both the General Assembly and the Security Council have referred with regard to Palestine to the customary rule of the inadmissibility of the acquisition of territory by war see paragraphs 74 and 87 above Thus in resolution 242 1967 of 22 Novem ber 1967 the Security Council after recalling this rule af rmed that the ful lment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles Withdrawal of Israel armed forces from territories occupied in the recent con ict ii Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force It is on this same basis that the Council has several times condemned the measures taken by Israel to change the status of Jerusalem see para- graph 75 above 118 As regards the principle of the right of peoples to self-determina- tion the Court observes that the existence of a Palestinian people is no 50 longer in issue Such existence has moreover been recognized by Israel in the exchange of letteirs of 9 September 1993 between Mr Yasser Arafat President of the Palestine Liberation Organization PLO and Mr Yitzhak Rabin lsraeli Prime Minister In that correspondence the President of the P L 0 recognized the right of the State of Israel to exist in peace and security and made various other commitments In reply the Israeli Prime Minister informed him that in the light of those commitments the Governnlent of Israel has decided to recognize the P L 0 as the representative of the Palestinian people The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 also refers a number of times to the Palestinian people and its legitimate rights Preamble paras 4 7 8 Article II para 2 Article I I I paras 1 and 3 Article XXII para 2 The Court considers that those rights include the right to self-determination as the General Assembly has moreover recognized on a number of occasions see for example resolution 9 8 163 of 22 December 2003 119 The Court notes that the route of the wall as fixed by the Israeli Government includes within the Closed Area see paragraph 85 above some 80 per cent of lhe settlers living in the Occupied Palestinian Territory Moreover it is apparent from an examination of the map mentioned in paragraph 80 above that the wall's sinuous route has been traced in such a way as to include within that area the great majority of the Israeli sett1emeni s in the occupied Palestinian Territory including East Jerusalem 120 As regards these settlemeilts the Court notes that Article 49 paragraph 6 of the Fourth Geneva Convention provides The Occupying Power shall not dlrport or transfer parts of its ow11 civilian population into the territory it occupies That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War but also any measures taken by an occupying Power in order to oirganize or encourage transfers of parts of its own population into the ciccupied territory In this respect the information provided to the Court shows that since 1977 Israel has condiucted a policy and developed practices involving the establishment of Settlements in the Occupied Palestinian Territory contrary to the terms of Article 49 paragraph 6 just cited The Security Council has thus taken the view that such policy and practices have no legal validity It has also called upon Israel as the occupying Power to abide scrupulously by the Fourth Geneva Convention and to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967 including Jerusalem and in particular not to transfer parts of its own civilian population into the occupied Arab territories resolution 446 1979 of 22 March 1979 i The Council reaffirnned its position in resolutions 452 1979 of 20 July 1979 and 465 1980 of 1 March 1980 Indeed in the latter case it described Israel's policy and practices of settling parts of its population and new immigrantis in the occupied territories as a flagrant violation of the Fourth Geneva Convention The Court concludes that the Israeli settlements in the Occupied Palestinian Territor including East Jerusalem have been established in breach of international law 121 Whilst the C ourtnotes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature see paragraph 116 above it nevertheless cannot remain indifferent tc certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine and the fear that Israel may integrate the settlements and their means of access The Court considers that the construction of the wall and its associated régime creale a fait accompli on the ground that could well become permarient in which case and notwithstanding the formal characterization of the wall by Israel it would be tantamount to facto annexatioi-i 122 The Court recalls moreover that according to the report of the Secretary-General the planned route would incorporate in the area between the Green 1 ine and the wall more than 16 per cent of the territory of the West Bank Around 80 per cent of the settlers living in the Occupied Palestinian Territory that is 320 000 individuals would reside in that area as well as 237 000 Palestinians Moreover as a result of the construction of the wall around 160 000 other Palestinians would reside in almost complete1 y encircled communities see paragraphs 84 85 and 1 19 above In other terms the route chosen for the wall gives expression in loco to the illegal measures taken by lsrael with regard to Jerusalem and the settlements as deplored by the Security Council see paragraphs 75 and 120 above There is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing as will be further explained in paragraph 133 below to the departure of Palestinian populations from certain areas That construction along with measures taken previously thus severely impedes the exercise by the Palestinian people of its right to self-determination and is therefore a breach of Israel's obligation to respect that right 123 The construc tion of the wall also raises a number of issues in rela- CONSTF UCTION OF A WALL ADVISORY OPINION 185 tion to the relevant provisions of international humanitarian law and of human rights instruments 124 With regard to the Hague Regulations of 1907 the Court would recall that these deal in Section II with hostilities and in particular with means of injuring the enemy sieges and bombardments Section III deals with military authority in occupied territories Only Section III is currently applicable in the West Bank and Article 23 g of the Regulations in Section II is thus not pertinent Section III of the Hague Regulations includes Articles 43 46 and 52 which are applicabl in the Occupied Palestinian Territory Article 43 imposes a duty on the occupant to take al1 measures within his power to restore and as far as possible to insure public order and life respecting the laws in force in the country Article 46 adds that private property must be respected and that it cannot be confiscated Lastly Article 52 authorizi within certain limits requisitions in kind and services for the needs of the army of occupation 125 A distinction is also made in the Fourth Geneva Convention between provisions applying during military operations leading to occupation and those thsit remain applicable throughout the entire period of occupation It thus states in Article 6 The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2 In the territory of Parties to the conflict the application of the present Conven tion shall cease on the general close of military o erations In the case of occupied territory the application of the present Convention shall cease one year after the general close of military operations hoaiever the Occupying Power shall be bound for the duration of the occu ation to the extent that such Power exercises the functions of govérnment in such territory by the provisions of the following Articles of the present Convention 1 to 12 27 29 to 34 47 49 51 52 53 59 61 to 77 143 Protected persons whose release repatriation or re-establishment may take place after such dates shall meanwhile continue to benefit by the present Convention Since the military operations leading to the occupation of the West Bank in 1967 ended a long time ago only those Articles of the Fourth Geneva Convention referred to in Article 6 paragraph 3 remain applicable in that occupied territory 126 These provisions include Articles 47 49 52 53 and 59 of the Fourth Geneva Convention According to Artilcle 47 Protected persons who are in occupied territory shall not be deprived in any case or in any manner whatsoever of the benefits of the present Convention by any change introduced as the result of the occupation of a territory into the institutions or government of the said territory nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power nor by any annexatilon by the latter of the whole or part of the occupied territory Article 49 reads as follows Individual or mass forcible transfers as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country occupied or not are prohibited regardless of their motive Nevertheless the Occupying Power may undertake total or partial evacuation of al given area if the security of the population or imperative milit ryreasons so demand Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased The Occupying Power undertaking such transfers or evacuations shall ensure to the greatest practicable extent that proper accommodation is provided to receive the protected persons that the removals are effected in satisfactory conditions of hygiene health safety and nutrition and that members of the same family are not separated The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place The Occupyirig Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies According to Article 52 No contract agreement or regulation shall impair the right of any worker whether voluntary or not and wherever he may be to apply to the relnresentatives of the Protecting Power in order to request the said Power's intervention All nieasures aiming at creating unemployment or at restricting the opportunities offered to workers in an occupied territory in order to induce them to work for the Occupying Power are prohibited CONSTRUCTION OF A WALL ADVISORY OPINION 187 Article 53 provides that Any destruction by the Occupying Power of real or persona1 property belonging individually or collectively to private persons or to the State or to other public authorities or to social or CO-operativeorganizations is prohibited except where such destruction is rendered absolutely necessary by military operations Lastly according to Article 59 If the whole or part of the population of an occupied territory is inadequütely siipplied the Occupying Power shall agree to relief schemes on behialf of the said population and shall facilitate them by al1 the means at its disposal Such schemei which may be undertaken either by States or by impartial humanitarian organizations such as the International Committee of the Red Cross shall consist in particular of the provision of consignments of foodstuffs medical supplies and clothing All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection A Power grainting free passage to consignments on their way to territory occupi1 d by an adverse Party to the conflict shall however have the right to search the consignments to regulate their passage according to prescribed times and routes and to be reasonably satisfied througlh the Protecting Power that these consignments are to be used for the relief of the needy population and are not to be used for the beriefit of the Occupying Power 127 The International Covenant on Civil and Political Rights also contains several relevant provisions Before further examining these the Court will observe tlhat Article 4 of the Covenant allows for derogation to be made under various conditions to certain provisions of that instrument Israel made uise of its right of derogation under this Article by addressing the follovving communication to the Secretary-General of the United Nations on 71 October 1991 Since its estaiblishment the State of Israel has been the victim of continuous threats and attacks on its very existence as well as on the life and property of its citizens These have t lken the form of threats of war of actual armed attacks and carnpaigns of terrorism resulting in the murder of and injury to humari beings In view of the above the State of Emergency which was proclaimed in May 1948 has remained in force ever since This situation constitutes a public emergency within the meaning of article 4 1 of the Covenant The Government of Israel has therefore found it necessary in accordance with the said article 4 to take measures to the extent strictly required by the exigencies of the situation for the defence of CONSTR UCTION OF A W A L L ADVISORY OPINION 188 the State and for the protection of life and property including the exercise of powers of arrest and detention In so far as ariy of these measures are inconsistent with article 9 of the Covenant lsrael thereby derogates from its obligations under that provision The Court notes that the derogation so notified concerns only Article 9 of the International Covenant on Civil and Political Rights which deals with the right to liberty and security of person and lays down the rules applicable in cases of arrest or detention The other Articles of the Covenant therefore remain applicable not only on Israeli territory but also on the Occupied Palestinian Territory 128 Among these mention must be made of Article 17 paragraph 1 of which reads as follows No one shall be subjected to arbitrary or unlawful interference with his privacy family home or correspondence nor to unlawful attacks on his honour and reputation Mention must also be made of Article 12 paragraph 1 which provides Everyone lavifully within the territory of a state shall within that territory have the right to liberty of movement and freedom to choose his residence 129 In addition ito the general guarantees of freedom of movement under Article 12 of the International Covenant on Civil and Political Rights account must also be taken of specific guarantees of access to the Christian Jewish arid Islamic Holy Places The status of the Christian Holy Places in the Ottoman Empire dates far back in time the latest provisions relating thereto having been incorporated into Article 62 of the Treaty of Berlin of 13 July 1878 The Mandate for Palestine given to the British Government on 24 July 1922 included an Article 13 under which Al1 responsibility in connection with the Holy Places and religious buildings or sites in Palestine including that of preserving existing rights and of securing free access to the Holy Places religious buildings and sites and the free exercise of worship while ensuring the requirements of public order and decorum is assumed by the Mandatory Article 13 further stated nothing in this mandate shall be construed as conferring authority to interfere with the fabric or the management of purely Moslem sacred shrines the immunities of which are guaranteed In the aftermath of the Second World War the General Assembly in adopting resolution 181 II on the future government of Palestine devoted a11 entire chapter of the Plan of Partition to the Holy Places religious buildings and sites Article 2 of this Chapter provided in so far as the Holy Places were concerned the liberty of access visit and transit shall be guaranteed in conformity with existing rights to al1 residents and citizens of the Arab CONSTR UCT1ON OF A WALL ADVISORY OPINION 189 State of the Jevlish State and of the City of Jerusalem as well as to aliens without distinction as to nationality subject to requirements of national security public order and decorum Subsequently in the aftermath of the armed conflict of 1948 the 1949 General Armistice Agreement between Jordan and Israel provided in Article VI11 for the establishment of a special committee for the formulation of agreed planis and arrangements for such matters as either Party may submit to it for the purpose of enlarging the scope of the Agreement and of effecting improvement in its application Such matters on which an agreement of principle had already been concluded included free access to the Hioly Places This commitment concerned mainly the Holy Places located to the east of the Green Line Fiowever some Holy Places were located West of that Line This was the case of the Room of the Last Supper and the Tomb of David on Mount 2 ion In signing the General Armistice Agreement Israel thus undertook as did Jordan to guarantee freedom of access to the Holy Places The Court considers that this undertaking by Israel has remained valid for the Holy Places which came under its control in 1967 This undertaking has further been confirmed by Article 9 paragraph 1 of the 1994 Peace Treaty between Israel and Jordan by virtue of which in more general terms Each party will provide freedom of access to places of religious and historical significance 130 As regards the International Covenant on Economic Social and Cultural Rights that instrument includes a number of relevant provisions namely the right to work Arts 6 and 7 protection and assistance accorded to the family and to children and young persons Art 10 the right to an adequate standard of living including adequate food clothing and housini and the right to be free from hunger Art 11 the right to health Art 12 the right to education Arts 13 and 14 131 Lastly the United Nations Convention on the Rights of the Child of 20 November 1989 includes similar provisions in Articles 16 24 27 and 28 132 From the information submitted to the Court particularly the report of the Secretary-General it appears that the construction of the wall has led to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention 133 That construction the establishment of a closed area between the Green Line and the wall itself and the creation of enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory with the exception of CONSTRUCTION OF A W A L L ADVISORY OPINION 190 Israeli citizens and those assimilated thereto Such restrictions are most marked in urban areas such as the Qalqiliya enclave or the City of Jerusalem and its suburbs They are aggravated by the fact that the access gates are few in nunnber in certain sectors and opening hours appear to be restricted and unpredictably applied For example according to the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by lsrael since 1967 Qalqiliya a irity with a population of 40 000 is completely surrounded by the Wall and residents can only enter and leave through a single military checkpoint open from 7 a m to 7 p m Report of the Special Rapporteur inf the Commission on Human Rights John Dugard on the situation of human rights in the Palestinian territories occupied by Israel since 1967 submitted in accordance with Commission resolution 199312 A and entitletl Question of the Violation of Human Rights in the Occupied Arab Territories including Palestine ElCN 41200416 8 September 2003 para 9 There have also been serious repercussions for agricultural production as is attested by a number of sources According to the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories an estimated 100 000 dunums approximately 10 000 hectares of the West Bank's most fertile agricultural land confiscated by the Israeli Occupation Forces have been destroyed during the first phase of the wall construction which involves the disappearance of vast amounts of property notably private agricultural land and olive trees wells citrus grows and hothouses upon which tens of thousands of Palestinians rely for their survival Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories Al51313 1 1 22 August 2003 para 26 Further the Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967 states that Much of the Palestinian land 'on the Israeli side of the Wall consists of fertile agricultural land and soine of the most important water wells in the region and adds that Maily fruit and olive trees had been destroyed in the course of building the barrier ElCN 41200416 8 September 2003 para 9 The Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights states that construction of the wall cuts off Palestinians from their agricultural lands wells and means of subsistence Repcort by the Special Rapporteur of the United Nations Commission on Human Rights Jean Ziegler The Right to Food Addendum Mission to the Occupied Palestinian Territories ElCN 41 2004110lAdd 2 31 October 2003 para 49 In a recent survey conducted by the World Food Programme it is stated that the situation has aggra- CONSTI UCTION OF A W A L L ADVISOKY OPINION 191 vated food insecurity in the region which reportedly numbers 25 000 new beneficiaries of food aid report of the Secretary-General para 25 It has further led 10 increasing difficulties for the population concerned regarding access to health services educational establishments and primary sources of Walter This is also attested by a number of different information sources Thus the report of the Secretary-General states generally that According to the Palestinian Central Bureau of Statistics so far the Barrier has separated 30 localities from health services 22 from schools 8 from primary water sources and 3 from electricity networks Report of the Secretary-General para 23 The Special Rapporteur of the United Nations Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967 states that Palestinians between the Wall and Green Line will effectively be cut off from their land and workplaces schools health clinics and other social services ElCN 41200416 8 September 2003 para 9 In relation specifically to water resources the Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights observes that By constructing the fence Israel will also effectively annex most of the western aquifer system which provides 51 per cent of the West Bank's water resources E1CN 4120041101Add 2 31 October 2003 para 51 Similarly in regard to access to health services it has been stated that as a result of the enclosure of Qalqiliya a United Nations hospital in that t o w i has recorded a 40 per cent decrease in its caseload report of the Secretary-General para 24 At Qalqiliya according to reports furnished to the United Nations soine 600 shops or businesses have shut down and 6 000 to 8 000 people have already left the region ElCN 41200416 8 September 2003 para 10 E CN 4 2004 1O Add 2 31 October 2003 para 51 The Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights has also observed that With the fencelwall cutting communities off from their land and water without other means of subsistence many of the Palestinians living in these areas will be forced to leave ElCN 41 2004 10 Add 2 31 October 2003 para 51 In this respect also the construction of the wall would effectively deprive a significant number of Palestinians of the freedom to choose their residence In addition however in the view of the Court since a significant number of Palestinians have already been compelled by the construction of the wall and its associated régime tol depart from certain areas a process that will continue as more of the wall is built that construction coupled with the establishment of the Israeli settlements mentioned in paragraph 120 above is tending to alter the demographic composition of the Occupied Palestinian Territory 134 To sum up the Court is of the opinion that the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory with the exception C0NSTF UCTION OF A W A L L ADVISORY OPINION 192 of lsraeli citizens and those assimilated thereto as guaranteed under Article 12 paragrapl 1 of the International Covenant on Civil and Political Rights They alko impede the exercise by the persons concerned of the right to work to health to education and to an adequate standard of living as proclaimed in the International Covenant on Economic Social and Cultural Rights and in the United Nations Convention on the Rights of the Child Lastby the construction of the wall and its associated régime by contributing to the demographic changes referred to in paragraphs 122 and 133 above contravene Article 49 paragraph 6 of the Fourth Geneva Convention and the Security Council resolutions cited in paragraph 120 above 135 The Court would observe however that the applicable international humanitarian law contains provisions enabling account to be taken of military exigencies in certain circumstances Neither Article 46 of the Hague Regulations of 1907 nor Article 47 of the Fourth Geneva Convention contain any qualifying provision of this type With regard to forcible transfers of population and deportations which are prohibited under Article 49 paragraph 1 of the Convention paragraph 2 of that Article provides for an exception in those cases in which the security of the population or imperative military reasons so demand This exception however does not apply to paragraph 6 of that Article which prohibits the occupying Power from deporting or transferring parts of its own civilian population into the territories it occupies As to Article 53 concerriing the destruction of personal property it provides for an exception where such destruction is rendered absolutely necessary by military operations The Court considers that the military exigencies contemplated by these texts may be invoked in occupied territories even after the general close of the military operations that led to their occupation However on the material before it the Court is not convinced that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations 136 The Court viould further observe that some human rights conventions and in particular the International Covenant on Civil and Political Rights coritain provisions which States parties may invoke in order to derogate under various conditions from certain of their conventional obligations In this respect the Court would however recall that the communicaiion notified by Israel to the Secretary-General of the United Nations under Article 4 of the International Covenant on Civil and Political Rights concerns only Article 9 of the Covenant relating to the right to freedomi and security of person see paragraph 127 above Israel is accordingly bound to respect al1 the other provisions of that instrument The Court would note moreover that certain provisions of human rights conventions ctontain clauses qualifying the rights covered by those provisions There is no clause of this kind in Article 17 of the Interna- tional Covenant on Civil and Political Rights On the other hand Article 12 paragraph 3 of that instrument provides that restrictions on liberty of movement as guaranteed under that Article shall not be subject to any restrictions except those which are provided by law are necessary to protect national security public order ordre public public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Covenailt As for the International Covenant on Economic Social and Cultural Rights Article 4 thereof contains a general provision as follows The States Parties to the present Covenant recognize that in the enjoyment of those rights provided by the State in conformity with the present Covirnant the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society The Court would observe that the restrictions provided for under Article 12 paragraph 3 of the International Covenant on Civil and Political Rights are by the very terms of that provision exceptions to the right of freedom of movement contained in paragraph 1 In addition it is not sufficient that such restrictions be directed to the ends authorized they must also be riecessary for the attainment of those ends As the Human Rights Corrimittee put it they must conform to the principle of proportionality and must be the least intrusive instrument amongst those which might airhieve the desired result CCPR C 21 Rev I Add 9 General Comment No 27 para 14 On the basis of the information available to it the Court finds that these conditions are not met in the present instance The Court would fùrther observe that the restrictions on the enjoyment by the Palestinians living in the territory occupied by Israel of their economic social and cultural rights resulting from Israel's construction of the wall fail to meet a condition laid down by Article 4 of the International Covenant on Economic Social and Cultural Rights that is to say that their implementation must be solely for the purpose of promoting the general welfare in a democratic society 137 To sum up the Court from the material available to it is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives The wall along the route chosen and its assooiated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations urider the applicable international humanitarian law and human rights instruments 138 The Court has thus concluded that the construction of the wall constitutes action not in conformity with various international legal obligations incumbent upon Israel However Annex 1 to the report of the Secretary-General states that according to Israel the construction of the Barrier is consistent with Article 51 of the Charter of the United Nations its inherenit right to self-defence and Security Council resolutions 1368 2001 and 1373 2001 More specifically Israel's Permanent Representative to the United Nations asserted in the General Assembly on 20 October 2003 that the fence is a measure wholly consistent with the right of States to self-defence enshrined in Article 51 of the Charter the Security Council resolutions referred to he continued have clearly recognized the right of States to use force in self-defence against terrorist attacks and therefore surely recognize the right to use non-forcible measures to that encl AIES-10lPV 21 p 6 139 Under the t'crms of Article 51 of the Charter of the United Nations Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State However Israel does not claim that the attacks against it are imputable to a foreign State The Court also riotes that Israel exercises control in the Occupied Palestinian Territory and that as Israel itself states the threat which it regards as justifying the construction of the wall originates within and not outside that teriritory The situation is thus different from that contemplated by Securi1 y Council resolutions 1368 2001 and 1373 200 l and therefore lsrael could not in any event invoke those resolutions in support of its claim t o be exercising a right of self-defence Consequently the Court concludes that Article 51 of the Charter has no relevance in this case 140 The Court hiis however considered whether Israel could rely on a state of necessity which would preclude the wrongfulness of the construction of the wall In this regard the Court is bound to note that some of the conventions at issue in the present instance include qualifying clauses of the rights guaranteed or provisions for derogation see para- graphs 135 and 136 above Since those treaties already address considerations of this kind within their own provisions it might be asked whether a state of necessity as recognized in customary international law could be invoked witli regard to those treaties as a ground for precluding the wrongfulness of the measures or decisions being challenged However the Court will not need to consider that question As the Court observed iri the case concerning the GubFikovo-Nug rnrtros Project HungarylSlovakiu the state of necessity is a ground recognized by customary international law that can only be accepted on an exceptional basis il can only be invoked under certain strictly defined conditions which must be cumulatively satisfied and the State concerned is not the sole judge of whether those conditions have been met 1 C J Reports IY97 p 40 para 51 One of those conditions was stated by the Court in terms used by the International Law Commission in a text which in its present form requires that the act being challenged be the only way for the State to safeguard an essential interest against a grave and imminent peril Article 25 of the international Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts see also former Article 33 of the Draft Articles on the International Responsibility of States with slightly different wording in the English text In the light of the material before it the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction 141 The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population It has the right and indeed the duty to respond in order to protect the life of its citizens The measures taken are bound nonetheless to remain in conformity with applicable international law 142 In conclusion the Court considers that Israel cannot rely on a right of self-defence sr on a state of necessity in order to preclude the wrongfulness of the construction of the wall resulting from the considerations mentionetri in paragraphs 122 and 137 above The Court accordingly finds that the construction of the wall and its associated régime are contrary t o international law 143 The Court having concluded that by the construction of the wall in the Occupied Palestinian Territory including in and around East Jerusalein and by adoptirig its associated régime Israel has violated various international obligations incumbent upon it see paragraphs 114-137 above it must now in order to reply to the question posed by the General Assembly examine the consequences of those violations CONSTRUCTION OF A W A L L ADVISORY OPINION 196 144 In their written and oral observations many participants in the proceedings before ithe Court contended that Israel's action in illegally constructing this wall has legal consequences not only for Israel itself but also for other States and for the United Nations in its Written Statement Israel for its part presented no arguments regarding the possible legal consequences of the construction of the wall 145 As regards the legal consequences for Israel it was contended that Israel has first a legal obligation to bring the illegal situation to an end by ceasing forthwith the construction of the wall in the Occupied Palestinian Territory and to give appropriate assurances and guarantees of non-repetition It was argued that secondly Israel is under a legal obligation to make reparation for the damage arising from its unlawful conduct It was submitted that such reparation should first of al1 take the form of restitution namely demolition of those portions of the wall constructed in the Occupied Palestinian Territory and annulment of the legal acts associated with its construction and the restoration of property requisitioned or expropriated for that purpose reparation should also include appropriate compensation for intlividuals whose homes or agricultural holdings have been destroyed It was further coniended that Israel is under a continuing duty to comply with al1 of the international obligations violated by it as a result of the construction of the via11 in the Occupied Palestinian Territory and of the associated régime It was also argued that under the terms of the Fourth Geneva Convention Israel is under an obligation to search for and bring before its courts persons alleged to have committed or to have ordered to be committed grave breaches of international humanitarian law flowing from the planning construction and use of the wall 146 As regards the legal consequences for States other than Israel it was contended before the Court that al1 States are under an obligation not to recognize the illegal situation arising from the construction of the wall not to render aid or assistance in maintaining that situation and to CO-operatewith a view to putting an end to the alleged violations and to ensuring that reparaiion will be made therefor Certain participants in the proceedings further contended that the States parties to the Fourth Geneva Convention are obliged to take measures to ensure compliance with the Convention and that inasmuch as the construction and maintenance of the wall in the Occupied Palestinian Territory constitutes grave breaches of that Convention the States parties to that Convention are under an obligation to prosecute or extradite the authors of such breaches It was further observed that the United Nations Security Council should consider flagrant and systematic violaition of international law norm s and principles by C0NSTF UCTION OF A WALL ADVISORY OPINION 197 Israel particularly international humanitarian law and take al1 necessary measiires to put an end to these violations and that the Securit Council and the General Assembly must take due account of the advisory opinion to be given by the Court 147 Since the Court has concluded that the construction of the wall in the Occupied Palestinian Territory including in and around East Jerusalem and its associated régime are contrary to various of Israel's international obligations it follows that the responsibility of that State is engaged under international law 148 The Court cvill now examine the legal consequences resulting from the violations of international law by Israel by distinguishing between on the one hand those arising for Israel and on the other those arising for other States and where appropriate for the United Nations The Court will begin by examining the legal consequences of those violations for Iisrael 149 The Court notes that Israel is first obliged to comply with the international obligations it has breached by the construction of the wall in the Occupied Palestinian Territory see paragraphs 114-137 above Consequently Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law Furthermore it must ensure freedom of access to the Holy Places that came under its icontrol following the 1967 War see paragraph 129 above 150 The Court observes that Israel also has an obligation to put an end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory The obligation of a State responsible for an internationally wrongful act to put an end to that act is well established in general international law and the Court has on a number of occasions confirmed the existence of that obliirz und ugainst Nicarugilu gation Military anof Purumilitary Acti ities Nicaruguu v Unitcd States oJ' Americu Merits Judgment I C J Reports 1986 p 145 United States Diplomatic und Consulur Staff in Tehran Judgment 1' C J ReportSv 1980 p 44 para 95 HUJ U de la Torre Judgment 1 C' J Reports 1951 p 82 151 Israel accordingly has the obligation to cease forthwith the works of construction of the wall being built by it in the Occupied Palestinian Territory including in and around East Jerusalem Moreover in view of the Court's finding see paragraph 143 above that Israel's violations of its international obligations stem from the construction of the wall and from its associated régime cessation of those violations entails the dismantling forthwith of those parts of that structure situated within the Occupied Palestinian Territory including in and around East Jerusalem All legislative and regulatory acts adopted with a view to its construction and to the establishment of its associated régime must forthwith be repealed or rendered ineffective except in so far as such acts by providing for compensation or other forms of reparation for the Palestinian population may continue to be relevant for compliance by lsrael with the obligations referred to in paragraph 153 below 152 Moreover given that the construction of the wall in the Occupied Palestinian Territory has irzter aliu entailed the requisition and destruction of homes businesses and agricultural holdings the Court finds further that Israel has the obligation to make reparation for the damage caused to al1 the natural or legal persons concerned The Court would recall that the essential forms of reparation in customary law were laid down by the Permanent Court of International Justice in the following terms The essential principle contained in the actual notion of an illegal act a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals is that reparation must as far as possible wipe out al1 the consequences of the illegal act and reestablish the situation which would in al1 probability have existed if that act had not been committed Restitution in kind or if this is not possible payment of a sum corresponding to thie value which a restitution in kind would bear the award if need bir of damages for loss sustained which would not be covered by restitution in kind or payment in place of it such are the principles which should serve to determine the amount of compensation due for an act contrary to international law Fuctory ut Clzorzci z' M r i t s Jucigmcnt No 13 1928 P C 1 J Serirs A No 17 p 47 - - - 153 Israel is accordingly under an obligation to return the land orchards olive grov s and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory In the event that such restitution should prove to be materially impossible Israel has an obligation to compensate the persons in question for the damage suffered The Court considers that Israel also has an obligation to compensate in accordance with the applicable rules of international law al1 natural or legal persons having suffered any form of material damage as a result of the wall's construction 154 The Court will now consider the legal consequences of the internationally wrongful acts flowing from Israel's construction of the wall as regards other States 155 The Court w ouldobserve that the obligations violated by Israel include certain obligations erga omnes As the Court indicated in the Barcelona Traction case such obligations are by their very nature the concern of al1 States and In view of the importance of the rights involved al1 States Cain be held to have a legal interest in their protection Barcelonu Truction Light and Power Company Lirnited Second Phase Judgment I C J Re uorts 1970 p 32 para 33 The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination and certain of its obligations under international humanitarian law 156 As regards the first of these the Court has already observed paragraph 88 above that in the East Timor case it described as irreproachable the assertion that the right of peoples to self-determination as it evolved 1Tom the Charter and from United Nations practice has an erga omnes character I C J Reports 1995 p 102 para 29 The Court would also recall that under the terms of General Assembly resolution 2625 XX'V already mentioned above see paragraph 88 Every State has the duty to promote through joint and separate action realization of the principle of equal rights and self-determination of peoples in accordance with the provisions of the Charter and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle 157 With regard to international humanitarian law the Court recalls that in its Advisory Opinion on the LegaIity of the Threat or Use of Nucleur Weupons it stated that a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and 'i lementary considerations of humanity' that they are to be observed by al1 States whether or not they have ratified the conventions that contain them because they constitute intransgressible principles of international customary law I C J Reports 1996 I p 257 para 79 In the Court's view these rules incorporate obligations which are essentially of an erga omnes character 158 The Court would also emphasize that Article 1 of the Fourth Geneva Convention a provision common to the four Geneva Conventions provides that The High Contracting Parties undertake to respect and to ensure respect for the present Convention in al1 circumstances It follows from that provision tllat every State party to that Convention whether or CONSTRUCTION OF A WALL ADVISORY OPINION 200 not it is a party to a specific conflict is under an obligation to ensure that the requirements of the instruments in question are complied with 159 Given the character and the importance of the rights and obligations involved the Court is of the view that al1 States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory including in and around East Jerusalem They are also under an obligation not to render aid or assistance in imaintaining the situation created by such construction It is also for al1 States while respecting the United Nations Charter and international law to see to it that any impediment resulting from the construction of the wall to the exercise by the Palestinian people of its right to self-determination is brought to an end In addition al1 the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of PJar of 12 August 1949 are under an obligation while respecting the United Nations Charter and international law to ensure compliance by lsrael with international humanitarian law as embodied in that Convention 160 Finally the Court is of the view that the United Nations and especially the General Assembly and the Security Council should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime taking due account of the present Advisory Opinion 161 The Court being concerned to lend its support to the purposes and principles laid down in the United Nations Charter in particular the maintenance of international peace and security and the peaceful settlement of disputes would emphasize the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli-Palestinian conflict which continues to pose a threat to international peace and security to a speedy conclusion thereby establishing a just and lasting peace in the region 162 The Court has reached the conclusion that the construction of the wall by Israel in the Occupied Palestinian Territory is contrary to international law and ha stated the legal consequences that are to be drawn from that illegality The Court considers itself bound to add that this construction must be placed in a more general context Since 1947 the year when General Assembly resolution 181 II was adopted and the Mandate for Palestine was terminated there has been a succession of armed conflicts acts of indiscriminate violence and repressive measures on the former mandated territory The Court would emphasize that both Israel and Palestine are under an obligation scrupulously to observe the rules of international humanitarian law one of the paramount purposes of which is to protect civilian life Illegal actions and unilateral decisions have been taken on al1 sides whereas in the Court's view this tragic situation can be brought to an end only through implementation in good faith of al1 relevant Security Council resolutions in particular resolutions 242 1967 and 338 1973 The Roadmap approved by Security Council resolution 1515 2003 represents the most recent of efforts to initiate negotiations to this end The Court considers that it has a duty to draw the attention of the General Assembly to which the present Opinion is addresseti to the need for these efforts to be encouraged with a view to achieving as soon as possible on the basis of international law a negotiated solution to the outstanding problems and the establishment of a Palestinian State existing side by side with Israel and its other neighbours with peace and security for al1 in the region 163 For these reasons 1 Unanimously Finds that it has j irisdictionto give the advisory opinion requested 2 By fourteen votes to one Decides to comply with the request for an advisory opinion FAVOUR President Shi Vice-President Ranjeva Judge Guillaume IN Koroma Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek Al-Khasawneh Elaraby Owada Simma Tomka AGAINST Jurlge Buergenthal 3 Replies in the following manner to the question put by the General Assembly A By fourteen votes to one 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 régime are contrary to international law I N P A V O U R President Shi Vice-President Ranjeva Judges Guillaume Koroma Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek Al-Khasawneh Elaraby Owada Simma Tomka AGAINST Judge Buergenthal B By fourteen voles to one Israel is under an obligation to terminate its breaches of international law it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory including in and around East Jerusalem to dismantle forthwith the structure therein situated and to repeal or render ineffective forthwith al1 legislative and regulatory acts relating thereto in accordance with paragraph 15 1 of this Opinion PresiAnt Shi Vice-Puesident Ranjeva Judge r Guillaume Koroma Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek Al-Khasawneh Elaraby Owada Simma Tomka AGAINST Judge Buergenthal I N FAVOUR C By fourteen votes to one Israel is under a n obligation to make reparation for al1 damage caused by the construction of the wall in the Occupied Palestinian Territory including in and around East Jerusalem FAVOUR President Shi Vice-Prcj sident Ranjeva Judges Guillaume Koroma Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek Al-Khasawneh Ellaraby Owada Simma Tomka AGAINSI- Judge Buergenthal IN D By thirteen votes to two Al1 States are under a n obligation not to recognize the illegal situation resulting from the coinstruction of the wall and not to render aid or assistance in maintaining the situation created by such construction al1 States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Tiine of War of 12 August 1949 have in addition the obligation while reijpecting the United Nations Charter and international law to ensure compliance by Israel with international humanitarian law as embodied in that Convention IAVOUR Pr sident Shi Vice-Puesident Ranjeva Judges Guillaume Koroma Vereshchetin Higgins Parra-Aranguren Rezek Al-Khasawneh Elaraby Owada jimma Tomka AGAII S I J i g e sKooijmans Buergenthal IN E By fourteen votes to one The United Nations and especially the General Assembly and the Security Council should consider what further action is required t o bring to a n end the illegal situation resulting from the construction of the wall and the associated rkgime taking due account of the present Advisory Opinion I AVOCJK President Shi Vice-President Ranjeva Judges Guillaume Koroma Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek Al-Khasawneh Elaraby Owada Simma Tomka AGAINST Jll lgc Buergenthal IN Done in French and in English the French text being authoritative at the Peace Palace Thi Hague this ninth day of July two thousand and four in two copies one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations Signed SHIJiuyong President Signed Philippe COUVREUR Registrar Judges KOROMA HIGGINS KOOIJMANS and AL-KHASAWNEH append separate opinions to the Advisory Opinion of the Court Judge BUERGENTHAL appends a declaration to the Advisory Opinion of the Court Judges ELARABY and OWADA append separate opinions to the Advisory Opinion of the Court Initialled J Y S Initialled Ph C