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[p.3]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 17, 24, 48 and 68 of the Statute of the Court and
to Articles 34, paragraph 2, and 102, paragraph 1, of the Rules of Court,
Having regard to resolution A/RES/ES-10/14 of the Tenth Emergency Special
Session of the United Nations General Assembly, whereby the Assembly decided
to request the Court, pursuant to Article 65 of its Statute, to give an
urgent advisory opinion on the question stated therein,
Having regard to the Order made by the Court on 19 December 2003 whereby
(inter alia) it decided that the United Nations and its Member States were
considered likely, in accordance with Article 66, paragraph 2, [p 4] of the
Statute, to be able to furnish information on all aspects raised by the
question submitted to the Court for advisory opinion, and provided for the
organization of the further procedure in the case,
Makes the following Order:
1. Whereas on 31 December 2003 the Government of Israel addressed a letter
to the Registrar of the Court, in which that Government referred to the
composition of the Court for purposes of its Order of 19 December 2003, and
observed (inter alia) that “a Member of the Court who has played a leading
role in recent years in the very Emergency Special Session from which the
advisory opinion request has now emerged” is participating in decisions in
this case;
2. Whereas in that letter the Government of Israel stated further that
“Resolution A/RES/ES-10/14 requesting the advisory opinion locates the
request squarely in the context of the wider
Arab-Israeli/Israeli-Palestinian dispute. The essentially contentious nature
of the proceedings is also recognized by the Court’s invitation to Palestine
to participate in the case. It is inappropriate for a Member of the Court to
participate in decisions in a case in which he has previously played an
active, official and public role as an advocate for a cause that is in
contention in this case. Israel will be writing to the President of the
Court separately on this matter pursuant to Article 34 (2) of the Rules of
Court”;
3. Whereas on 15 January 2004 the Government of Israel addressed a
confidential letter to the President of the Court referring to Article 34,
paragraph 2, of the Rules of Court, in which that Government identified
Judge Elaraby as the Member of the Court referred to in the previous letter,
and sought to bring to the attention of the President facts which that
Government considered of possible relevance to the participation of Judge
Elaraby in the case;
4. Whereas the Government of Israel referred in its confidential letter not
only to Judge Elaraby’s participation in the Tenth Emergency Special Session
of the General Assembly but also to his previous activities as principal
Legal Adviser to the Egyptian Ministry of Foreign Affairs (1976-1978 and
1983-1987), and as Legal Adviser to the Egyptian Delegation to the Camp
David Middle East Peace Conference of 1978, and his involvement in
initiatives following the signing of the Israel-Egypt Peace Treaty in 1979,
concerning the establishment of autonomy in the West Bank and the Gaza
Strip; whereas the Government further cited the published report of an
interview given by Judge Elaraby to an Egyptian newspaper in August 2001,
which reports the views of Judge Elaraby on questions concerning Israel;
[p 5]
5. Whereas the letter from the Government of Israel concludes by contending
that Judge Elaraby, both in his previous professional capacity and in his
statements of opinion, has been actively engaged in opposition to Israel
including on matters which go directly to aspects of the question now before
the Court;
6. Whereas in the case concerning the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970) the Court ruled on
objections, presented by the Government of South Africa under Article 17,
paragraph 2, of the Statute, to the participation of three Members of the
Court in the proceedings; whereas those objections were based “on statements
made or other participation by the Members concerned, in their former
apacity as representatives of their governments, in United Nations organs
which were dealing with matters concerning South West Africa”; whereas the
Court reached the conclusion that such activities did not attract the
application of Article 17, paragraph 2 (I.C.J. Reports 1971, p. 18, para.
9);
7. Whereas Article 17, paragraph 2, of the Statute excludes a Member of the
Court from participation in the decision of any case in which he has
previously taken part “as agent, counsel, or advocate for one of the
parties, or as a member of a national or international court, or of a
commission of enquiry, or in any other capacity”;
8. Whereas however the activities of Judge Elaraby referred to in the letter
of 15 January 2004 from the Government of Israel were performed in his
capacity of a diplomatic representative of his country, most of them many
years before the question of the construction of a wall in the occupied
Palestinian territory, now submitted for advisory opinion, arose; whereas
that question was not an issue in the Tenth Emergency Special Session of the
General Assembly until after Judge Elaraby had ceased to participate in that
Session as representative of Egypt; whereas in the newspaper interview of
August 2001, Judge Elaraby expressed no opinion on the question put in the
present case; whereas consequently Judge Elaraby could not be regarded as
having “previously taken part” in the case in any capacity;
THE COURT,
By thirteen votes to one,
Decides that the matters brought to the attention of the Court by the letter
of 31 December 2003 from the Government of Israel, and the further
confidential letter of 15 January 2004 from that Government, are not such as
to preclude Judge Elaraby from participating in the present case.
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, [p 6]
Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek,
Al-Khasawneh, Owada, Simma, Tomka;
AGAINST: Judge Buergenthal.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this thirtieth day of January, two thousand and
four, in two copies, one of which will be placed in the archives of the
Court, and the other transmitted to the Government of Israel.
(Signed) SHI Jiuyong,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judge BUERGENTHAL appends a dissenting opinion to the Order of the Court.
(Initialled) J.Y.S.
(Initialled) Ph.C.
Dissenting Opinion of Judge
Buergenthal |
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