The Advisory Opinion: The Light Treatment of International Humanitarian Law

Abstract

Ever since the occupation of the West Bank and Gaza began in 1967, the Supreme Court of Israel has entertained petitions challenging actions of the Israeli authorities in those territories. The Court has delivered dozens of judgments in which it addressed questions of international humanitarian law in a situation of belligerent occupation. For a long time the Supreme Court was the sole judicial actor in this sphere. While its judgments were subjected to scrutiny and criticism by academics, no other judicial organs, domestic or international, ruled on the difficult legal issues discussed by the Court. The request for an advisory opinion provided the International Court of Justice (ICJ) with a unique opportunity to address and clarify some of the issues that had previously remained in the exclusive domain of the Supreme Court of Israel. Unfortunately, the Court did not take full advantage of this opportunity. As Judge Rosalyn Higgins noted in her separate opinion, the Court refrained from engaging in a detailed analysis of the law, thereby failing to follow “the tradition of using advisory opinions as an opportunity to elaborate and develop international law.” The opinion is especially weak on questions of international humanitarian law (IHL), which makes it extremely difficult to know what the Court actually decided on these questions.