1. I concur with the Court’s findings and agree in general with its reasoning. Certain salient points in the Advisory Opinion merit some elucidation and it is specifically with regard to those points that I append this opinion.
The international legal status of the territories presently under Israeli occupation
2. Few propositions in international law can be said to command an almost universal acceptance and to rest on a long, constant and solid opinio juris as the proposition that Israel’s presence in the Palestinian territory of the West Bank including East Jerusalem and Gaza is one of military occupation governed by the applicable international legal régime of military occupation.
3. In support of this, one may cite the very large number of resolutions adopted by the Security Council and the General Assembly often unanimously or by overwhelming majorities, including binding decisions of the Council and other resolutions which, while not binding, nevertheless produce legal effects and indicate a constant record of the international community’s opinio juris. In all of these resolutions the territory in question was unfalteringly characterized as occupied territory; Israel’s presence in it as that of a military occupant and Israel’s compliance or non-compliance with its obligations towards the territory and its inhabitants measured against the objective yardstick of the protective norms of humanitarian law.
4. Similarly the High Contracting Parties to the Fourth Geneva Convention and the International Committee of the Red Cross “have retained their consensus that the convention”, i.e. the Fourth Geneva Convention of 12 August 1949, “does apply de jure to the occupied territories”.
5. This has also been the position of States individually or in groups including States friendly to Israel. Indeed a review of the record would reveal that, as noted by France in its Written Statement:
7. Whilst “that consistent record of the international community’s opinio juris cannot just be swept aside and ignored”, the Court did not simply reiterate that opinio juris, instead, while taking cognizance of it, the Court arrived at similar conclusions regarding the de jure applicability of the Fourth Geneva Convention mainly on the basis of a textual interpretation of the Convention itself (paras. 86-98). Paragraph 98 reads:
9. Whatever the merits and demerits of the Jordanian title in the West Bank might have been, and Jordan would in all probability argue that its title there was perfectly valid and internationally recognized and point out that it had severed its legal ties to those territories in favour of Palestinian self-determination, the fact remains that what prevents this right of self-determination from being fulfilled is Israel’s prolonged military occupation with its policy of creating faits accomplis on the ground. In this regard it should be recalled that the principle of non-annexation is not extinguished with the end of the mandate but subsists until it is realized.
The significance of the Green Line
10. There is no doubt that the Green Line was initially no more than an armistice line in an agreement that expressly stipulated that its provisions would not be “interpreted as prejudicing, in any sense, an ultimate political settlement between the Parties” and that “the Armistice Demarcation Lines defined in articles V and VI of [the] Agreement [were] agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto” (Advisory Opinion, para. 72).
11. It is not without irony that prominent Israeli jurists were arguing before the 1967 war that the General Armistice agreements were sui generis, were in fact more than mere armistice agreements, could not be changed except with the acceptance of the Security Council. Whatever the true significance of that line today, two facts are indisputable:
(1) The Green line, to quote Sir Arthur Watts, “is the starting line from which is measured the extent of Israel’s occupation of non-Israeli territory” (CR 2004/3, p. 64). There is no implication that the Green Line is to be a permanent frontier.
(2) Attempts at denigrating the significance of the Green Line would in the nature of things work both ways. Israel cannot shed doubts upon the title of others without expecting its own title and the territorial expanse of that title beyond the partition resolution not to be called into question. Ultimately it is through stabilizing its legal relationship with the Palestinians and not through constructing walls that its security would be assured.
The role of negotiations
12. The Court has included a reference to the tragic situation in the Holy Land . A situation that can be brought to an end “only through implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973). The Roadmap approved by Security Council resolution 1515 (2003) represents the most recent of efforts to initiate negotiations to this end.” (Advisory Opinion, para. 162.)
13. Whilst there is nothing wrong in calling on protagonists to negotiate in good faith with the aim of implementing Security Council resolutions and while recalling that negotiations have produced peace agreements that represent defensible schemes and have withstood the test of time, no one should be oblivious that negotiations are a means to an end and cannot in themselves replace that end. The discharge of international obligations including erga omnes obligations cannot be made conditional upon negotiations. Additionally, it is doubtful, with regard to the Roadmap, when consideration is had to the conditions of acceptance of that effort, whether the meeting of minds necessary to produce mutual and reciprocal obligations exists. Be that as it may, it is of the utmost importance if these negotiations are not to produce non-principled solutions, that they be grounded in law and that the requirement of good faith be translated into concrete steps by abstaining from creating faits accomplis on the ground such as the building of the wall which cannot but prejudice the outcome of those negotiations.
Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/2 of 25 April 1997, para. 21, A/165-10/6-S/1997/494.
Sir Arthur Watts, CR 2003/3, p. 64.