QUESTION #3

Did the UN ask for an opinion on the fence's legal status, or rather did it ask what the legal ramifications might be, on the assumption that the fence is a priori illegal?

If one looks only at the original question that the United Nations General Assembly asked of the International Court of Justice, then one would reasonably assume that the UN is looking for a clarification of the legal issues so that it may then proceed to form its position regarding the fence.

The referring body and its remit

However, the forum where the resolution was passed to request an advisory regarding the security fence was the 10th Emergency Session of the General Assembly. Despite its urgent and ad-hoc sounding title, this session has been convening on and off since April 1997, and is entitled, Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory.

The primary purpose of the session is to carefully examine the measures Israel takes in response to the problem of on-going terrorism and to decide which ones to condemn as illegal. So, in a sense, it is most appropriate that this UN forum seek the guidance of the ICJ as to the legality of the fence.
However, the paragraph immediately before the sentence introducing and containing the advisory question of December 8, 2003 reads:

that the passage of time further compounds the difficulties on the ground, as Israel, the occupying Power, continues to refuse to comply with International Law, vis-à-vis its construction of the above-mentioned wall, with all its detrimental implications and consequences…

By stating that Israel refuses to comply with International Law, vis a vis the construction of the wall, the UN General Assembly has clearly taken the position that the wall is illegal, wherever it lies on land considered to be part of the West Bank. This means that the UNGA has essentially asked the court to explain the legal ramifications of an illegal wall.

One has to question the purposes of the Assembly, in asking for a clarification on something which they seem to already view with a clear opinion.

Three reasons why the UN has turned to the ICJ, when the UN has already deemed the fence illegal

There are at least three likely reasons for the UN advisory request despite its already clear position that the fence is illegal.

First, the UNGA may wish for the Court to speak, not only of what it sees as Israel's obligations (presumably including the removal of the fence), but also of what would be the resulting obligation of UN member states: not to aid Israel in the construction or maintenance of the fence - much as the similarly worded question regarding South Africa and Namibia in the ICJ's 1971 advisory prompted the ICJ to issue a warning against member states from helping South Africa maintain its occupation of Namibia, and not merely to call for the end of the occupation.

Second, if the ICJ should find that Israel does have a right to build a security barrier, even on land outside its recognized borders, the question still allows the ICJ to examine the legality of the specific route of the fence.

It could be that certain sections - where land was confiscated, fields or structures damaged, or movement severely curtailed - may have a different legal status than those in other, more innocuous areas.

This very question has been raised by Israeli citizens before the justices of Israel's Supreme Court. To date, Israel's Supreme Court has ruled that the petitioners must first clarify which specific parts of the fence they object to, and why. Otherwise, the objection is too general to be ruled on. This may well turn out to be the ICJ's response to the UNGA, too.

The third reason for requesting a clarification, on what is already viewed as a clear matter, is in order to test the judicial waters regarding the general legality of Israel's occupation of the West Bank and all of the disputed territories.

• It has already been noted that, while the UN was quick to ask for an advisory on the legality of South Africa's occupation of Namibia, it has refrained for over thirty-six years from asking the ICJ to rule on Israel's occupation of the West Bank and other disputed territories, and that there is thus strong reason to suspect that the UN as a body is unsure of the illegality of Israel's occupation.
• It should also be noted that, since the 1980's, and especially since the signing of the Olso Accords in 1993, UN resolutions have refrained from explicitly referring to Israel's occupation as illegal, while continuing to cite the supposed illegality of Israeli practices and operations in the territories.

By asking the ICJ to discuss the legal ramifications of the security fence, the anti-Israel lobby in the UN General Assembly, which pressed for the advisory request, may be hoping that:

• the ICJ will either rule that there is indeed an illegal occupation,
  or else, that:
• the Court will reveal a disposition towards finding the occupation illegal.

Alternatively, the Court could simply not address the question at all, and restrict itself solely to the question of the fence, in the context of the rights and obligations of occupying powers. The point here is that in the latter two scenarios, the General Assembly saves face by not having directly asked the ICJ to rule on the legality of the occupation and then receiving an explicit endorsement of the legality of the occupation.

But if the Court should rule in such a way as to imply that the occupation is illegal, the General Assembly could then consider asking for an official and direct ruling on the matter from the ICJ. This then may be the motivation or one of the motivations for the advisory request from those in the UN who already believe that the fence is illegal.

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