The Oral Pleadings before the ICJ were One-Sided

Israel was not barred from presenting its case before the International Court of Justice. It did not give an oral pleading because it chose not to.

However, Israel did present a written statement where it gave various grounds as to why the ICJ should not entertain the request to give an advisory opinion on the Wall.

The Court looked at the arguments advanced by Israel and unanimously concluded that there were no proper grounds for it not to refuse to render the opinion requested by the UN General Assembly.

That Israel did not give an oral pleading and that it voted against the Assembly’s resolution is irrelevant - the persistent objector rule[i] is not applicable to this case since the ICJ was not dealing with the creation of a new rule of international law.

Israel’s absence has no bearing on the legality of the proceedings which took place before the Court, or on the legality of the advisory opinion itself.

The ICJ did not need Israel's consent to opine on the legal consequences of the Wall since the case was not brought against Israel, and Israel was not a party to it. It was the General Assembly which requested advice from the ICJ on the Wall's construction in Occupied Palestinian Territory.

Therefore Israel, as Judge Buergenthal stressed in his Declaration, "… had no legal obligation to participate in these proceedings or to adduce evidence supporting its claim regarding the legality of the Wall".

Whether it was wise for Israel to have taken this course of action is another matter.

Judge Owada, in his Separate Opinion (paragraph 19), was of the view that Israel would have been justified in making an application to choose a judge ad hoc (i.e. Israel could have appointed a judge to sit on the bench to take part in the proceedings and pass judgement on the legality of the Wall) had it taken part in the proceedings.

For further reading:

See paragraphs 13 - 42 of the ICJ’s advisory opinion at the following link:

http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm

See the Separate Opinion of Judge Owada which can be located at the following link: http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm