[Editors' Note: Due to its large size, the HTML version – this version – of this article is published in two parts. This is part one of two.]

       There is no security without law.  Satisfying the provisions of the law is an aspect of national security.

President Barak, Israel High Court of Justice

Beit Sourik Village Council v Govm of Israel (30 June 2004)

A.  Introduction*

  One of the consequences of the method the International Court of Justice employs to draft its pronouncements is that, at times, its reasoning is less candid than one might desire.  The Court's advisory opinion on the Legal consequences of the construction of a wall in the Occupied Palestinian Territory of 9 July 2004 provides a clear example.  To reach unanimity, or near unanimity, on the points decided, one can only assume that the judges bargained hard over the discursive normative component of the Opinion.  In places, the Court's reasoning is sparse, as Judge Higgins noted in relation to the Court's finding that Israel has breached international humanitarian law:

It might have been expected that an advisory opinion would have contained a detailed analysis, by reference to the texts, the voluminous academic literature and the facts at the Court's disposal...Such an approach would have followed the tradition of using advisory opinions as an opportunity to elaborate and develop international law.

  Judge Higgins' observation holds true beyond the confines of the Court's discussion of this issue.  It is, however, equally true that the Opinion contains well-reasoned conclusions on important points of principle, such as Israel's obligation to observe humanitarian and human rights law in the Occupied Palestinian Territory.

B.  The Anatomy of the Opinion

  Before considering the drafting process, however, it is as well to recall both the question posed for the Court's Opinion by the General Assembly in resolution ES-10/14 and the dispositif of the Opinion to indicate its rough anatomy.  The question posed provided:

What are the legal consequences...