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
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).
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.