Israel's Security Fence:
Criticisms of the International Court of Justice by the British judge

London - published on 6 August 2004
Beyond Images Ref: 101



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Summary
Judge Rosalyn Higgins, the British judge on the International Court of Justice (ICJ), was highly critical of the Advisory Opinion which the ICJ handed down in July 2004 concerning Israel’s security fence. In her separate Opinion she states that:

- the ICJ conclusions are based on “unsatisfactory” historical understanding
- its analysis of Israel’s right of self-defence is legally incorrect, and
- the ICJ Opinion is not even-handed and parts are “detached from reality”.

Judge Higgins is a world-renowned international lawyer. Her views reduce the credibility of the ICJ’s Opinion, and the Court’s reputation.

Background

In December 2003 the UN General Assembly requested the International Court of Justice in the Hague to provide a non-binding ‘Advisory Opinion’ on the position under international law of Israel’s security fence. On 9 July 2004 the ICJ issued its Opinion, concluding that the fence is illegal under international law, that it should be dismantled, and that compensation should be paid to affected Palestinians.

The Israeli reaction, and the Palestinian diplomatic offensive

The Israeli Government, and Israelis from across the political spectrum, reacted with dismay. Israel claimed that the ICJ was not designed to address such matters, which should be resolved by negotiations between the parties. Its spokesmen alleged that the Court was being manipulated for political purposes by the anti-Israel majority in the United Nations, and that the Opinion itself was one-sided and wrong. Finally, Israel pointed out that the security fence (or “wall”, as the Court called it) had saved many Israeli lives, and foiled terrorists, and that the Opinion would only serve to encourage suicide bombers.

Israel refused to comply with the Opinion, despite a diplomatic offensive launched by the Palestinians at the UN and elsewhere.


The separate Opinion of the British ICJ member Judge Rosalyn Higgins

One of the ICJ judges was world-renowned international lawyer Judge Rosalyn Higgins. She wrote a Separate Opinion in which she calls into question the ICJ’s approach to key issues in the proceedings. Here are some of her key criticisms:-

The ICJ analyses the fence out of context and its historical understanding of the underlying conflict is “unsatisfactory”

The Judge describes the law, history and politics of the Israeli-Palestinian conflict as “immensely complex” (para 14). She criticises the proceedings for excluding the context in which Israel is building the security fence – namely the wave of terrorism it has experienced. She describes the Court’s account of the history of the conflict as “neither balanced nor satisfactory” (para 16), and concludes that the Court has failed to provide a “balanced Opinion”.

The Court’s conclusion concerning Israel’s right of self-defence is legally incorrect

In an extremely brief analysis, the ICJ concluded that Israel could not exercise a right of self-defence against armed attack under Article 51 of the UN Charter, as a justification for building the fence. The ICJ stated that Article 51 was only intended to be invoked in the case of armed attacks by states, and the Palestinians are not a state.


Judge Higgins states that this analysis is incorrect, for two reasons:-

  • Firstly, she says that there is nothing in the text of Article 51 of the UN Charter to support the argument that it is available only in the case of armed attack by another state (para 33). She shows that the ICJ’s conclusion is based on a misinterpretation of an earlier ICJ Opinion.

  • Secondly, she argues that the analysis is based on a double-standard regarding the Palestinians. The Palestinians are treated as an international entity for purposes of taking part in ICJ proceedings; and it is inconsistent for them not to be treated as an international entity when it comes to Israel being able to defend itself against Palestinian attacks (see para 34).

Judge Higgins’ arguments highlight the severe weaknesses in the ICJ’s reasoning on this key issue.

The ICJ Opinion lacks balance and even-handedness

Judge Higgins pinpoints several times the lack of balance, realism and even-handedness in the ICJ Opinion. Examples she cites include the following:-

The ICJ is silent on the Palestinians’ legal duty not to attack Israeli civilians:
She states that the ICJ should have taken the opportunity to remind not only Israel but the Palestinians of their obligations under international humanitarian law. Instead the ICJ addresses only Israel’s legal duties, and makes no comment on the legal obligation of the Palestinians not to attack Israeli civilians (see para 19). She says that this should have featured in the Court’s Opinion.

The ICJ is wrong to conclude that the fence is an obstacle to Palestinian self-determination:
The Court upholds the Palestinian argument that Israel’s security fence is a “serious obstacle” to Palestinian self-determination. Judge Higgins (at para 30) calls this conclusion “unbalanced” and “quite detached from reality”. She makes the ”simple” point that the absence of Palestinian self-determination predates the construction of the fence, and arises because of the absence of a diplomatic process to resolve the dispute. That situation is not Israel’s fault, writes the Judge, but the responsibility of both parties.

The ICJ is wrong to conclude that the fence signifies de facto annexation of West Bank territory:
Thirdly, Judge Higgins rejects the ICJ finding in support of the Palestinians that the construction of the fence constitutes de facto annexation of West Bank territory – that is, Israel asserting legal sovereignty. She writes (para 31) that the fence has no impact upon the legal status of territory on either side of it. To end the existence of the fence, she says, can occur only through negotiations, with both parties accepting their responsibilities under international law.

Elsewhere in her Opinion (para 25), she describes the ICJ Opinion as “light” in its treatment of international humanitarian law; she expresses regret at what the ICJ has chosen to omit from its Opinion; and describes the proceedings as “hugely imbalanced” (para 18) against Israel.

Why did Judge Higgins agree with the ICJ conclusions?

Given Judge Higgins’ forceful criticisms of the Court’s reasoning, it is surprising that she agreed with the ICJ’s conclusion that the fence is not lawful. She writes that she did so “with considerable hesitation” (para 20), and because Israel had in her view not shown why the fence, and in particular its route, could be justified as being as “a necessary and proportionate” response to a threat. (It is worth noting that the decision of Israel’s Supreme Court, reached just a few days earlier, that the fence must be rerouted to accommodate the needs of Palestinian civilians, would appear to meet Judge Higgins’ concern).

Conclusions

Judge Higgins, one of the world’s leading international lawyers and herself a member of the ICJ, has exposed the ICJ Opinion on Israel’s security fence to be seriously flawed in its legal reasoning, fairness, and historical grasp.