The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense

Abstract

On December 8, 2003, the International Court of Justice was requested by the United Nations General Assembly to give an advisory opinion on the “legal consequences” of the security fence under construction by Israel in the West Bank, also variously called “security barrier” and “wall.” The General Assembly sought referral to the Court by a vote of 90 states—but another 74 states abstained, and 8 states voted in opposition. Careful consideration of the case was rendered especially difficult by the decision of the Court to set a truncated briefing schedule, permitting only six weeks for written submissions on jurisdiction and the merits. An even greater concern was the danger, perhaps realized, that the Court’s opinion might be read as prejudging issues central to negotiations in the “Roadmap” political process seeking peace in the Middle East. The hope for some coherence in the approach of the international community to the resolution of a difficult and violent conflict is not otiose, especially where a stable settlement will require ongoing diplomatic, economic, and security support. For that very reason, two of the road map’s sponsors—the United States and the Russian Federation—urged the Court to take account of the impact that any decision might have on the negotiating process. The European Union, as a third member of the “Quartet” sponsoring the road map, together with the ten acceding states to the European Union and fifteen other states, urged the Court to decline to render any advisor)’ opinion at all because of the “compelling” circumstances of the peacemaking process.