Author:- Himanshu Ranjan, Senior Associate, All India Legal Forum
I shall confine my brief thoughts on the recent advisory opinion of the International Court of Justice (ICJ) on the legal consequences of the construction of a wall in the occupied Palestinian territory (OPT) to the Court’s treatment of international humanitarian law (IHL) in general, and to the law of belligerent occupation in particular. To that end, I will focus on the following four areas: the Court’s consideration of the applicable law as regards IHL; the Court’s interpre- tation of Article 6 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War;’ the Court’s consideration of the concept of military necessity in the context of foreign military occupation; and the Court’s consideration of the responsibility of third states, particularly the high contracting parties to the Fourth Geneva Convention, for violations of relevant principles of IHL by an occupying power. Before I delve into these matters, however, I feel it important to register my general agreement with the Court’s conclusions on all the material issues that were before it: namely, that the Court had proper jurisdiction under the United Nations Charter and its governing Statute to enter- tain the question put to it by the General Assembly and that no compelling reasons militated against the Court’s using its discretionary power to refuse such jurisdiction that the applicable law in the case was the law on self-determination of peoples, IHL, and international human rights law, in addition to other general principles of public international law; that the construction of the wall and its associated regime (including for the purpose of protecting and consolidating illegal civilian colonies in the OPT) violates the applicable international law and that violation is not vitiated by the law of self-defense or necessity; that Israel is under an obligation to termi- nate its breaches of international law (including its prolonged frustration of the rights Palestinian people to self-determination), and to make good any damage flowing from those breaches; and that all states are obliged not to recognize the illegal situation resulting from the construction of the wall, not to render aid or assistance in maintaining the situation created by its construction, and to see that any impediment to the exercise by the Palestinian people of its right to self-determination caused by that construction is brought to an end. Nevertheless, the advisory opinion is not without its shortcomings, some serious and others less so, but still important enough to warrant special attention. The most serious in relation to the Court’s findings on IHL concern what I view to be a flawed interpretation of Article 6 of the Fourth Geneva Convention, which, if taken as an accurate interpretation of the law, would lead to very negative consequences for the Palestinian civilian population in the OPT and quite possibly for other civilian populations subject to prolonged foreign military occupation. More generally, as will be demonstrated, while the Court reached sound legal conclusions on most questions of IHL, its inexplicable unwillingness to offer exhaustive and compelling reasons for those conclusions-which in many cases exist in abundance-will undoubtedly cast a cloud over its findings, particularly for those of us who held greater expectations of what the Court might have achieved. In the context of the law on self-defense, Judge Rosalyn Higgins expressed a similar opinion, noting that “even if it [the wall] were an act of self-defence, properly so called, it would need to be justified as necessary and proportionate.”73 She further stated that “while the wall does seem to have resulted in a diminution of attacks on Israeli civilians, the necessity and proportionality for the particular route selected, with its attendant hardships for Palestinians uninvolved in these attacks, has not been explained.”74 Thus, whereas the Court was correct in concluding that the wall in its present form, with its associated destructions and expropriations of civilian property, could not be justified by military exigencies, it should have engaged in a full analysis of the test for military necessity in support of its finding. Had it done so, not only would it have been better able to discharge its judicial function of developing substantive law in this area, but it also would have substantially enhanced the quality and credibility of its findings.
All jurists will be familiar with the oft-cited axiom articulated by Lord Justice Hewart in Rex v. Sussex Justices; Exparte McCarthy: “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”95 That justice must “be seen to be done” is a fundamental principle upon which its s administration in most, if not all, major legal systems of the world is based. It is rooted in a multiplicity of agelong traditions, and informs a great many rules of legal procedure and substance that are aimed at engendering public confidence in the integrity of the legal process, a key aspect of which is the existence of a competent and impartial judiciary capable of demonstrating the cogency and correctness of its findings. This is no less the case with respect to the administration of justice on the international plane. Article 56 of the ICJ Statute provides that any judgment of the Court “shall state the reasons on which it is based.” Likewise, Article 107 of the Rules of Court states that in rendering an advisory opinion, the Court shall provide “the reasons in point of law” in support of its findings. Cursory though they may be, these rules are to be understood as reaffirmations of the principle of open justice and of the need for the judicial function to be guided by the imperative of rendering rational, coherent, and convincing reasons in support of its findings, based on a careful consideration of material facts and the sound application of relevant legal principles to those facts. The ICJ’s treatment of IHL in its advisory opinion on the legal consequences of the construction of a wall in the OPT leaves much to be desired in the way of fulfilling this judicial imperative. In addition to the Court’s flawed interpretation of Article 6 of the Fourth Geneva Convention, whose effects bear serious consequences for civilian persons subject to prolonged foreign military occupation, its failure to provide adequate analysis in support of its findings on the applicable law in the OPT, the principle of military necessity, and the legal duties of third states with respect to Israel’s construction of the wall renders the opinion less convincing than it otherwise could or should have been. To be sure, with the exception of its ruling on Article 6, the Court was correct in its findings on IHL issues. That said, it was incumbent upon the Court, as the highest judicial authority in the international community, to exhaustively and persuasively dis- play the basis for those findings, as General Assembly requests that it render advisory opinions are based on the strength of that very authority. As put in its Resolution 1731 (XVI) of December 20, 1961, by which the General Assembly requested an advisory opinion on the interpretation of Article 17(2) of the UN Charter, the Assembly expects the Court to furnish it with “authoritative legal guidance” in rendering advisory opinions.99 Moreover, being the “only judicial body which applies generally binding international law without limitation to a defined treaty system or the restrictions of a specialized legal field,” the ICJ “is therefore in a better position than any other judicial institution to contribute through its case law to the development of general inter- national law. “Despite having had ample opportunity to do so, particularly as concerns the concept of military necessity and the scope of common Article 1 of the Fourth Geneva Convention, the Court failed to engage in any real and substantial exercise of this function. In the final analysis, the advisory opinion was highly important in setting forth and affirming general legal principles and duties regarding not only Israel’s construction of the wall in the OPT, but also its prolonged occupation of that territory and continued frustration of the right of the Palestinian people to self-determination. From the perspective of the positive development of public international law, however, the opinion does not stand out as a particularly major achievement of the Court or its role, as expressed in the words of Judge Abdul Koroma, as “the supreme arbiter of international legality.