The legitimacy of the ICJ's advisory competence in the shadow of the wall

Israel Law Review

Volumn 38, Issue 1-2, 2005, Pages 189-210

  Broude, Tomer ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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EID: 84928627769     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700012668     Document Type: Article

References (99)

1. Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory, Opinion of 9 July 2004, 2004 I.C.J.
2. See this issue of the Israel Law Review: “Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory” (2005) 38(1–2) Is.L.R. 17 (hereinafter: “ICJ Opinion or Wall Opinion”).
3. I use the term “wall” throughout this comment, simply employing the Court's terminology, which in turn follows that used by the UNGA in its request; there seems little point in debating the adequacy of terms that are rife with political imagery but devoid of real significance. Moreover, it is noteworthy that although the Court stated that neither term is more accurate “in the physical sense” (Is.L.R., at para. 67)
4. it acknowledged that only 5% of the infrastructure addressed by it consisted of a concrete wall (Is.L.R., at para. 82).
5. For a survey of judicial “issue-avoidance” techniques that might have been applied by the Court, see William Davey, “Has the WTO Dispute Settlement System Exceeded its Authority? A Consideration of Deference Shown by the System to Member Government Decisions and its Use of Issue-Avoidance Techniques” (2001) 4(1) J. Int. Econ. L. 79.
6. ICJ Opinion, J. Int. Econ. L., at para. 163(1).
7. J. Int. Econ. L., at para. 163(2).
8. H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) P.D. 807.
9. See this issue of the Israel Law Review for an English translation of this decision: “H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) P.D. 807” (2005) 38 (1–2) Is.L.R. 83.
10. Israel's choice, however, was certainly substantially affected by the Court's decision to unify its decisions on preliminary issues and on the merits; see section IV infra.
11. UNGA Res. ES-10/13 of October 27, 2003.
12. Ankenbrandt vs. Richards, 504 U.S. 689, une 15, 1992, Stevens J. concurring, online: http://supct.law.cornell.edu/supct/html/91–367.ZC2.html.
13. See section IV infra.
14. Only (for the sake of disclosure) as one who has been within earshot or less of at least a dozen ‘so-called terrorist attacks by Palestinian suicide bombers’ (see ICJ Opinion, separate opinion of Judge Owada, para. 31 available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Owada. htm.
15. lives, commutes and works a stone's throw from the wall; is thus purportedly protected by it; and whose family has lived in ‘Palestine’ since the early 1800s. These realities undoubtedly influence my personal view of the wall, although in a truly indeterminate and scattered fashion - they may have created bias, but I myself cannot tell in which direction; such is the complexity of the conflict that the ICJ regarded quite technically as a mere “circumstance” (para. 54) to be taken “carefully into account” (ICJ Opinion).
16. Advisory opinions relating to pending disputes of a bilateral nature are not a new phenomenon (i.e., Eastern Carelia, 1923 P.C.I.J. (Ser. B), No. 5 (“Eastern Carelia”)
17. Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (“Namibia”)
18. Western Sahara, 1975 I.C.J. 25) and are indeed foreshadowed by the ICJ Rules (see article 102(3)). My criticism is that the ICJ Opinion of the Wall went a step further, disregarding the due process implications of the quasi-contentiousness of the case in the way it exercised its jurisdiction
19. see section IV infra.
20. See Robert O. Keohane and Joseph S. Nye, “The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy”, in R.B. Porter et al., eds. Efficiency, Equity, Legitimacy: The Multilateral Trading System at the Millennium (Washington, DC, Brookings Institute Press, 2001) 264.
21. See Tomer Broude, International Governance in the World Trade Organization: Judicial Boundaries and Political Capitulation (London, Cameron, May, 2004) sec. III.C.2.
22. Thomas M. Franck, The Power of Legitimacy Among Nations (Oxford, Oxford University Press, 1990), at 24 (emphasis added).
23. See Isao Miyaoka, “State Compliance with International Legitimate Norms: Wildlife Preservationist Pressures on Japanese Fishing”, paper presented at the 41st Annual Convention of the International Studies Association, Los Angeles, CA, March 14–18, 2000, online, http://www.ciaonet.org/isa/mii01/(last accessed: September 23,2004)(emphasis added).
24. Items 3.B. and 3.C. of the findings of the Wall Opinion are unambiguously addressed towards Israel and the obligations it has been found to have incurred, ICJ Opinion, paper presented at the 41st Annual Convention of the International Studies Association, at para. 63.
25. Since advisory opinions are requested by UN organs and not by states, they have no express binding effect on states. They do, nevertheless, have “all the moral consequences” of a ruling by the principal judicial organ of the UN (See Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase - advisory opinion of 30 March, 1950 [1950] I.C.J. Rep. 65 (“Peace Treaties”))
26. carry great “persuasive character and moral authority” (See Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge, Grotius Publications Ltd., 1986) Vol. I, at 124).
27. Peace Treaties, The Law and Procedure of the International Court of Justice, at 19.
28. Item 3.D., findings of the ICJ Opinion, The Law and Procedure of the International Court of Justice, at para. 64.
29. The Law and Procedure of the International Court of Justice, Item 3.E.
30. See Peace Treaties, The Law and Procedure of the International Court of Justice at 19.
31. See Keohane and Nye, The Law and Procedure of the International Court of Justice.
32. According to Franck, ‘adherence’ - the connection between the rule and a ‘hierarchy of secondary rules’ that ‘define how rules are to be made, interpreted and applied’ - is one of four indicators of legitimacy (see Franck The Law and Procedure of the International Court of Justice, at 184).
33. See Keohane and Nye The Law and Procedure of the International Court of Justice.
34. See relevant chapters in Shabtai Rosenne, The Law and Practice of the International Court 1920–1996 (The Hague, Boston, London. Martinus Nijhoff Publishers, 3rd ed., 1997).
35. On inter-judicial bargaining in the production of the Wall Opinion, see Ian Scobbie, “Smoke, Mirrors and Killer Whales: The International Court's Opinion on the Israeli Barrier Wall” (2004) 5(9) German Law Journal 1107.
36. Consider, hypothetically, the legitimacy effect on jurisdiction if the Judges who filed critical separate opinions (Higgins, German Law Journal, Kooijmans available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opinion_separate_Kooijmans.htm
37. Owada, German Law Journal had instead joined Judge Buergenthal by filing dissenting opinions. (Judge Buergenthal's dissenting opinion is available at http://www.icj-cij.org/icjwww/idocket/imwp/imp_advisory_opimon_separate_Buergenthal.htm). Given the additional separate opinions of Judges Koroma, El-Araby and El-Khasawneh, parts of which are quite distant from the dispositif'in legal reasoning. In such a case the ICJ would arguably have simply failed to fulfill its advisory role, by providing no generally accepted interpretation of the law. The opinions of the other judges mentioned in this citation are available at http://www.icj-cij.org.
38. See para. 13 of the dispositif, following Legality of the Threat or Use of Nuclear Weapons, advisory opinion, 1996 (I) I.C.J. (“Use of Nuclear Weapons ”).
39. See ICJ Opinion, I.C.J., at para. 16 and sources cited there.
40. I.C.J., at para. 28.
41. But had, in one case, moved the ICJ's predecessor, the Permanent Court of International Justice (PCIJ) (Eastern Carelia, I.C.J.).
42. ICJ Opinion I.C.J., at para. 45.
43. These arguments are: contentious character of the case (paras. 46–50); impediment to political solution (paras. 51–54); insufficient facts (paras. 55–58); lack of useful purpose (paras. 59–62); lack of good faith and “clean hands” (paras. 63–64). I.C.J.
44. See Franck, I.C.J.
45. ICJ Opinion, I.C.J., at paras. 49–50.
46. See Peace Treaties, I.C.J., at 71.
47. I refer to the gradual expansion of the contentious jurisdiction of the ICJ and the wearing down of the consent requirement in other international judicial bodies (see, in relevant part, Elihu Lauterpacht, Aspects of the Administration of International Justice (Hersch Lauterpacht Memorial Lectures) (Cambridge, Cambridge University Press, 1991)), as evident, e.g., in the ‘automaticity’ of World Trade Organization jurisdiction; and the advent of “supra-compulsory” jurisdiction in the International Criminal Court (on ‘supra-compulsory'jurisdiction
48. see Broude Aspects of the Administration of International Justice, Chapter VI.
49. The same could not be said of the Court's legitimative efforts of its decisions against Israel on the merits, that are virtually non-existent; for some discussion, see in this issue: Yuval Shany, “Capacities and Inadequacies: A Look at the Two Separation Barrier Cases” (2005) 38 (1–2) Is.L.R. 230.
50. But see Gerald M. Adler, “Separation Barrier, Closures and Checkpoints in ‘Occupied Palestinian Territories’ and Postscript to the International Court of Justice Decision on the Barrier”, Concord Research for the Interplay of International Norms and Israeli Law, July 13, 2004 (online: http://www2. colman.ac.i1/law/concorQ/commentaries/NON%20PARLT%20Separation%20Barrier%202.8.04.doc>): “By its decision, the International Court of Justice has done irreparable harm, to its reputation as an independent judicial institution and to the advancement of international law as an acceptable means of conflict resolution”.
51. See Concord Research for the Interplay of International Norms and Israeli Law.
52. This is a distinction alluded to by Judge Owada in his separate opinion, Concord Research for the Interplay of International Norms and Israeli Law, at para. 10: “it is my view that the existence of a bilateral dispute should be a factor to be taken into account by the Court in determining the extent to which, and the manner in which, the Court should exercise jurisdiction in such advisory proceedings”
53. in the ever fresh work of Michla Pomerance, The Advisory Function of the International Court in the League and U.N. Era (Maryland, John Hopkins University Press, 1973)
54. more recently. “The Advisory Role of the International Court of Justice and its ‘Judicial Character’: Past and Future Prisms” in Sam Muller et al., eds. The International Court of Justice: Its Future Role After Fifty Years, (Hague, Martinus Nijhoff and Leiden J. Int. L, 1997).
55. ICJ Opinion, The International Court of Justice: Its Future Role After Fifty Years, at paras. 46 et seq.
56. The International Court of Justice: Its Future Role After Fifty Years, at para. 48.
57. The International Court of Justice: Its Future Role After Fifty Years, at para. 49 (emphasis added).
58. This is presumably Judge Higgins' meaning in referring to “a denial of any dispute save as between Israel and the United Nations”; see separate opinion of Judge Higgins, The International Court of Justice: Its Future Role After Fifty Years, at para. 4.
59. It is not difficult to identify significant factual gaps and inaccuracies in the Court's narrative, allowing the argument the Court was unfair towards Israel. However, 1 would attach these curious omissions and stylizations, that at least in part, to the Court's self-imposed need to construct the question of Palestine as a multilateral issue, downplaying the bilateral aspect, in order to maintain the legitimacy of its decisions on jurisdiction and propriety. For example, according to the Court, after the State of Israel was established in May 1948, “armed conflict then broke out between Israel and a number of Arab States” (ICJ Opinion, The International Court of Justice: Its Future Role After Fifty Years, at para. 71; emphasis added), neglecting to mention that this conflict started as a large scale attack on Israel by seven Arab armies.
60. To be sure in the ICJ Opinion, The International Court of Justice: Its Future Role After Fifty Years, at para. 73, the 1967 conflict also simply materializes in the text, with no reference to its initiation by Israel. In this sterilized narrative, war is something that happens, like an accident; it is not caused by or attributed to any of the parties, their interests and objectives.
61. As a result, in this context no reference was made by the Court to Jordan's prior occupation and annexation of the West Bank (see some criticism of this by Judge Kooijmans, paras. 8–10 of his Separate opinion).
62. Yet the Court had no choice but to address this fact in its discussion of the application of the Fourth Geneva Convention (ICJ Opinion, The International Court of Justice: Its Future Role After Fifty Years, at paras. 90–93), because Israel had raised it specifically as part of its arguments.
63. ICJ Opinion, The International Court of Justice: Its Future Role After Fifty Years, at para. 109, third part.
64. The International Court of Justice: Its Future Role After Fifty Years, at para 112, last sentence.
65. The International Court of Justice: Its Future Role After Fifty Years, at para 137.
66. The International Court of Justice: Its Future Role After Fifty Years, at para 139.
67. The Court's term in The International Court of Justice: Its Future Role After Fifty Years, at para. 141.
68. As noted in Judge Buergenthal's dissent on the Court's decision to hear the Wall request, The International Court of Justice: Its Future Role After Fifty Years, at para. 3: “The nature of these cross-Green Line attacks and their impact on Israel and its population are never really seriously examined by the Court…”.
69. For a related critique of the Court's position on Israel's right to self-defense, see separate opinion of Judge Higgins, The International Court of Justice: Its Future Role After Fifty Years, at paras. 33–34.
70. The International Court of Justice: Its Future Role After Fifty Years, at paras. 14–17.
71. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request for an Advisory Opinion) Order of 19 December, 2003 available at www.icj-org/icj www/idocket/imwp/imwporder/imwp_iorder_20031219.PDF.
72. See para. 8 and ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request for an Advisory Opinion), Order of 30 January, 2004. www.icj-org/icjwww/idocket/imwp/imwporder/imwp_iorder_20040130.PDF.
73. Convention (Article 68 ICJ Statute in conjunction with Article 31 ICJ Statute and Article 102(3) ICJ Rules (previously Article 83 ICJ Rules)) and precedent (Morocco, but not Mauritania, succeeded in its request to appoint an ad hoc judge in Western Sahara) hold that that the appointment of ad hoc judges may be authorized by the Court in an advisory proceeding requested upon a legal question actually pending between two or more states; and see also South Africa's unsuccessful request for an ad hoc judge in Namibia, p. 12, and dissenting opinions there.
74. ICJ Opinion, an ad hoc judge in Namibia, at para 56
75. referring to Eastern Carelia and quoting Western Sahara, para 56 (emphasis added).
76. Literally, according to Buergenthal the Court must have before it or seek to ascertain “all relevant facts” (para. 3, emphasis added, quoted in full infra).
77. However, Israel's default was itself the result of a tactical disadvantage caused by the Court's refusal to establish a separate preliminary procedure of jurisdiction in the case; see infra text preceding note 64.
78. See Buergenthal, separate opinion, infra 33, at para. 10.
79. In this respect the Court did not heed its own past caution: “The vigilance which the court can exercise when aided by the presence of both parties to the proceedings has a counterpart in the special care it has to devote to the proper administration of justice in a case in which only one party is present” (Military and Paramilitary Activities in and Against Nicaragua, 1986 I.C.J. 14, 26)
80. also, in Nuclear Tests (Australia v. France), 1974 I.C.J. 263, at para. 31: “it is especially incumbent upon the Court to satisfy itself that it is in possession of all the available facts”, where one party is not appearing.
81. This special care should have applied a fortiori in an advisory proceeding in which the party with best access to information has not argued on the merits (accord, separate opinion of Judge Owada, I.C.J., at para. 21).
82. ICJ Opinion, I.C.J., at para. 3.
83. I.C.J., at paras. 63–64.
84. I.C.J., at para 47, after Western Sahara 32.
85. See section II I.C.J.
86. Indeed, the Court's findings in Namibia (I.C.J.)
87. also included obligations incumbent upon states, albeit under the qualifying chapeau whereby the Court is to that extent only “of the opinion”, a rhetorical buffer which is absent in the wording of the findings in the Wall (the Western Sahara opinion, I.C.J., did not even go that far).
88. Moreover, in Namibia the Court went so far as to place states under negative obligations on the legal level (essentially, to refrain from acts of implying recognition of South Africa's acts); in contrast, the Wall Court found positive obligations under the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August, 1949 (Para. 163(3)D., second sentence, and imposed a ‘soft’ but nevertheless positive obligation upon the UN and its organs to take action to bring the illegal situation to an end (Para. 163(3)E.). The subtly innovative character of the Court's findings is perhaps to be found in its introduction of the language of international responsibility into its analysis, absent in previous advisory opinions that related to concrete bilateral disputes of a territorial nature (see paras. 148 et seq. of the Wall opinion). The inconsistency of the Court's approach to the issue as exclusively multilateral is thus further complexified, blending compulsory-styled jurisdiction, advisory procedure and contentious discussion on the merits.
89. See Broude, Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ch. 5. The only attribute of post-traditional international adjudication not present in the Wall is the principle of direct effect. The term ‘supra-national’ may also come to mind here, although this term is notoriously imprecise.
90. As already noted, previous advisory opinions have edged closer to “compulsorizing” the advisory function and to giving indirect representation to non-state entities, and also to making the nature of advisory opinion findings obligatory in nature. Indeed, the roots of the entire gap between ‘input’ and ‘output’ legitimacy here identified in the Wall, can be traced in the Namibia and Western Sahara advisory opinions (Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War), but there are significant distinctions between these cases (e.g., the mandate context and existence of previous ICJ jurisprudence in Namibia; the completely different type of question posed to the ICJ in Western Sahara) that make the gap tolerable in the past jurisprudence, yet troubling in the Wall.
91. I refer specifically to the criticism of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Of course, this criticism has been tiresomely used for conservative political ends; but its factual basis cannot be disregarded.
92. See, e.g., P.C. Roberts and L.M. Stratton, “The Brown Decision”, in The New Color Line: How Quotas and Privilege Destroy Democracy (Washington, DC: Regnery Publishing, 1995) at 29 et seq., describing the “conspiracy” (more properly termed as ex parte interaction) between Justice Felix Frankfurter and Phillip Elman, a former clerk to Frankfurter and then on the Solicitor-General's staff, building upon Phillip Elman
93. interviewed by N. Silber, “The Solicitor Genera”s Office, Justice Frankfurter and Civil Rights Litigation, 1946–1960: an Oral History” (1987) 100 Harv. L. Rev. 817. “In the judicial equivalent of insider trading, Frankfurter and Elman frequently discussed Brown by telephone and in person. Elman had used confidential information from Frankfurter to shape the Truman administration's Brown brief to influence the Justices' views more effectively”. Roberts and Stratum's concluding paragraph begins with the words “despicable means cannot produce good outcomes.”
94. See Beit Sourik, Harv. L. Rev. A detailed discussion of this ruling would far transcend the scope of this comment. Suffice it to say that the where the ICJ entirely refused Israel the benefit of military necessity in justification of the wall, the Israeli High Court of Justice, ruling in a petition by Palestinians affected by the wall with regard to a forty kilometer stretch of it, sanctioned the military necessity underlying the wall, but found that the route that it follows cause harm that is disproportional to its military advantage. This opens the door to Israel's removal of the most offensive elements of the wall, while preserving its security interests.
95. For a succinct depiction of the difference between the constituencies of the ICJ and the Israeli High Court of Justice, and the effect of these upon there respective judgments, see Shany, Harv. L. Rev.
96. The more accepted meaning of this phrase relates to the guidance a court seeks in straying from precedent: between truth and jurisprudential constancy, choose truth; between one truth and another, choose the one that is more constant (see Justice Zmorah, President of the Israeli Supreme Court in C.A. 376/46 Rosenbaum v. Rosenbaum 2 P.D. 235, 253, 254
97. Justice Barak, President of the Israeli Supreme Court in FCA 7048/97 Anonymous v. Minister of Defense 54(1) P.D. 721, 744.
98. I refer here to a narrower significance that applies to the relation between procedural correctness and substantive justice; see, e.g., Justice Solberg of the Jerusalem Peace Court, in C.C. 4582/03 Yediot Communications v. Prof. Moshe Zimmerman (unpublished decision) (discussing the introduction of new evidence, and the relation between the pursuit of justice and die finality of proceedings).
99. Jonathon Swift, Gulliver's Travels (Ware, Wordsworth Classics, 1992; original ed, 1726), part I, ch. VI, 41.