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

Abstract

On 9 July 2004, the International Court of Justice delivered its Advisory Opinion on the Legal Consequence s 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 judge s 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.