Chinese Journal of International Law Advance Access originally published online on May 19, 2006
Chinese Journal of International Law 2006 5(2):269-300; doi:10.1093/chinesejil/jml021
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© The Author 2006. Published by Oxford University Press. All rights reserved
AGORA: THE INTERNATIONAL COURT OF JUSTICE AT 60 (PART II) |
Regarding/Disregarding: The Judicial Rhetoric of President Barak and the International Court of Justice's Wall Advisory Opinion
In Mara'abe v. Prime Minister of Israel (September 2005), Israel's High Court addressed the effect which it should give to the International Court's Legal consequences of the construction of a wall in Occupied Palestinian Territory advisory opinion. This had declared the wall illegal but, while affirming that it shared the International Court of Justice's normative rulings, the High Court reiterated that it thought the wall a lawful security measure. Rather than dissect the substantive treatment of the issues involved, this article examines the structure and rhetorical techniques employed by President Barak in his leading judgment in Mara'abe. He effected a skilful practical disregard of the International Court's normative findings through an elision of argument by relying on the doctrine of res judicata—a concept that has no relevance whatsoever to advisory opinions.
* Sir Joseph Hotung, Research Professor in Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London (email: is17{at}soas.ac.uk). This paper was completed on 7 March 2006. The core argument of this paper was originally discussed at a seminar held at the University of Hull in December 2005: I should like to record my thanks to my former student, Dr Richard Barnes, for giving me the opportunity to reconsider questions of judicial rhetoric that I initially examined years ago in my PhD dissertation. In this connection, I am gratified that this paper appears in the same agora of the Chinese JIL as one written by Professor Thirlway (5 Chinese JIL (2006), pp. 15–28), who was one of the examiners of my PhD. Some other elements of this paper were first aired at the Facts, Rights, and Remedies: Enforcing International Law in the Israel/Palestine Conflict conference, organized by the Toda Institute for Global Peace and the University of Santa Barbara Policy Research and Interdisciplinary Humanities Center, held at the University of Santa Barbara, California, in May 2004, and also at a seminar held at Brunel University in February 2006. I thank the participants in these meetings for their comments and insights, and also Professor Vera Gowlland-Debbas (Institut Universitaire de Hautes Études Internationales, Geneva), Dr Aeyal Gross (University of Tel Aviv) and Michael Sfard (Advocate, Tel Aviv) for comments on a late draft of this paper. As always, mistakes remain mine.