The ICJ Advisory Opinion and the Separation Barrier: A Troublesome Route

Israel Yearbook on Human Rights

31 Pages Posted: 23 Mar 2009

See all articles by Noam Lubell

Noam Lubell

University of Essex - School of Law

Date Written: 2005

Abstract

On 9 July 2004, the International Court of Justice delivered its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The Opinion set upon a task of covering a wide array of often complex legal issues, ranging from the applicability and possible violation of a large number of international humanitarian law (IHL) provisions, through international human rights law, to self-defence and self-determination. The final result, however, is perhaps not as elaborate as might have been expected, with regard to the development of arguments and the process through which the conclusions were reached. Indeed, four of the Court's judges have, within their separate opinions, expressed reservations either about the pathway to the conclusion, or the lack of clarity in the Court's findings. This article sets out to examine the analysis undertaken by the Court in reaching its conclusions. While the issues of jurisdiction and propriety, and whether the Court can and should decline to give the Opinion, were subject of debate, this will be set aside here in favour of a focus upon a number, though not all, of the substantive arguments on the merits of the Opinion. The questions of self-defence, annexation, and the issues surrounding impediments to daily life of the Palestinian population, particularly with regard to private property and respect for human rights, will be at the heart of this article.

Keywords: international humanitarian law, human rights, Israel, Palestine, military occupation, International Court of Justice

JEL Classification: K33

Suggested Citation

Lubell, Noam, The ICJ Advisory Opinion and the Separation Barrier: A Troublesome Route (2005). Israel Yearbook on Human Rights. Available at SSRN: https://ssrn.com/abstract=1366688

Noam Lubell (Contact Author)

University of Essex - School of Law ( email )

Colchester, Essex CO43SQ
United Kingdom

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