9 Fall 2025 5. This statement is intended to assist the Court when considering the numerous legal and factual issues arising from Resolution 77/247. With respect to such statements from non-governmental organisations, the ICJ Practice Direction XII provides: “1. Where an international non-governmental organization submits a written statement and/or document in an advisory opinion case on its own initiative, such statement and/or document is not to be considered as part of the case file. 2. Such statements and/or documents shall be treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements in the case in the same manner as publications in the public domain. 3. Written statements and/or documents submitted by international non-governmental organizations will be placed in a designated location in the Peace Palace. All States as well as intergovernmental organizations presenting written or oral statements under Article 66 of the Statute will be informed as to the location where statements and/or documents submitted by international non-governmental organizations may be consulted.” 6. The IJL intends that this submission, which is being communicated without prejudice to the Court’s determination of whether it would be proper to issue an opinion on the merits, will assist the Court properly to consider whether it is appropriate for it to respond to the questions posed before it, as formulated by the General Assembly. We recall that this is the situation which, in the Wall Advisory Opinion, gave rise to Judge Buergenthal stating that he was “compelled to vote against the Court’s findings on the merits because the Court did not have before it the requisite factual bases for its sweeping findings; it should therefore have declined to hear the case.”2 7. Judge Buergenthal was further “guided by what the Court said in Western Sahara, where it emphasized that the critical question in determining whether or not to exercise its discretion in acting on an advisory opinion request is ‘whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character.’”3 Judge Buergenthal concluded that giving an opinion without having “before it or seeking to ascertain all relevant facts bearing directly on issues of Israel’s legitimate right of self-defence, military necessity and security needs, given the repeated deadly terrorist attacks in and upon Israel proper coming from the Occupied Palestinian Territory to which Israel has been and continues to be subjected, cannot be justified as a matter of law.”4 Judicial propriety and the questions before the Court 8. The General Assembly’s questions contained in Resolution 77/247 rest on certain assumptions, namely that: (1) Israel’s presence in the West Bank, the Gaza Strip and Jerusalem is without any legal justification; (2) Israel’s presence in these areas violates Palestinian rights; and (3) this territory is “Palestinian.” These assumptions are inherent in the framing of the General Assembly’s questions which presuppose Israel’s “ongoing violation” of the Palestinian people’s right to self-determination, and settlement and “annexation” of “Palestinian territory.” 2. Legal Consequences of the Building of a Wall in Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports (2004) (hereinafter “Wall Advisory Opinion”), Declaration of Judge Buergenthal, p. 240. 3. Wall Advisory Opinion, Declaration of Judge Buergenthal, p.240, para. 1 citing Western Sahara, Advisory Opinion, ICJ Reports 1975 (hereinafter “Western Sahara Advisory Opinion), pp. 28-29, para. 46. 4. Wall Advisory Opinion, Declaration of Judge Buergenthal, para. 3, p. 241.
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