## Facts

- The U.N. General Assembly, acting in an emergency special session, requested an advisory opinion on the legal consequences of Israel’s construction of a barrier (“wall”) in the Occupied Palestinian Territory (OPT), including in and around East Jerusalem.
- The Court treated the West Bank, including East Jerusalem, as territory occupied by Israel since 1967, with Israel as the occupying power.
- The barrier’s route did not consistently follow the 1949 Armistice Line (Green Line) and in substantial parts ran inside the West Bank.
- The barrier and its associated “gate and permit” regime restricted Palestinian residents’ movement and access to employment, health care, education, family life, and property; the Court also linked the route’s effects to settlement-related territorial changes.
- Israel asserted that the barrier was a security measure intended to prevent attacks originating from the West Bank.
- Numerous States and organizations provided written and oral statements; Israel provided written communications and objected to jurisdiction and to the Court giving an opinion.

## Issues

1. Whether the Court had jurisdiction and should exercise its discretion to answer the General Assembly’s request for an advisory opinion.
2. Whether the OPT, including East Jerusalem, is occupied territory and whether the Palestinian people hold a right to self-determination relevant to the wall’s construction and associated regime.
3. Whether construction of the wall in the OPT and its associated regime violate international humanitarian law and international human rights law.
4. Whether Israel could justify the wall and its route under U.N. Charter Article 51 (self-defense) or under necessity and proportionality principles.
5. What legal consequences follow for Israel, for third States, and for the United Nations from any internationally wrongful conduct found.

## Decision

- The Court concluded it had jurisdiction to issue the advisory opinion and found no sufficient reason to decline to respond.
- The Court determined that construction of the wall in the OPT, including in and around East Jerusalem, and its associated regime were contrary to international law.
- The Court found that the wall’s construction and related measures severely impeded the Palestinian people’s exercise of the right to self-determination.
- The Court rejected Israel’s reliance on Article 51 as invoked, reasoning that the conditions for that justification were not satisfied in the circumstances presented; it also found the route and regime not justified by necessity and proportionality.
- The Court held that Israel must cease construction in the OPT, dismantle the wall there, and repeal or render ineffective measures connected to the wall’s unlawful regime.
- The Court held that Israel must make reparation for damage caused, including restitution where possible and compensation where restitution is not possible.
- The Court stated that other States must not recognize the illegal situation created by the wall and must not aid or assist in maintaining it, and that States parties to the Fourth Geneva Convention must ensure respect for the Convention.
- The Court stated that the U.N., particularly the General Assembly and Security Council, should consider further action to end the illegal situation.

## Legal Principles

- The General Assembly may request an ICJ advisory opinion on a legal question within the scope of its Charter functions; the existence of a political context does not remove a question’s legal character.
- Occupation law applies to territory held under belligerent occupation; the occupying power must comply with the Hague Regulations and the Fourth Geneva Convention.
- The right of peoples to self-determination is protected under international law, and measures that materially impede its exercise can breach international obligations.
- International human rights treaties can apply in occupied territory alongside international humanitarian law; the two bodies of law operate concurrently, subject to applicable derogation rules.
- Security measures in occupied territory must satisfy necessity and proportionality; extensive territorial and movement restrictions may be unlawful when their effects exceed what security requires.
- Serious breaches engaging obligations owed to the international community can trigger third-State duties of nonrecognition and nonassistance, and treaty-based duties to ensure respect for humanitarian law.
- A responsible State must cease internationally wrongful conduct, undo unlawful measures where required, and provide full reparation, including restitution and compensation.

## Conclusion

The Court advised that the wall’s construction and associated regime in the OPT violated international law, impaired Palestinian self-determination, and could not be justified as invoked; it required Israel to stop and dismantle the wall in occupied territory and provide reparation, and it imposed corresponding duties on other States and the United Nations to avoid recognition or assistance and to pursue termination of the unlawful situation.


Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9)