The International Court of Justice is an agency of the United Nations, established under a statute within the UN Charter. Fifteen judges sit on the ICJ. The judges are elected by the Security Council and the General Assembly of the United Nations for nine years. The judges are also eligible for reelection. To ensure as much impartiality as possible, no nation-state can have more than a single judge on the Court at the same time. The statute also says that judges must work exclusively for the Court during their term on the bench. Id e ally, the judges on the Court are chosen because of their legal qualifications. Every a t tempt is also made to make certain that the judges exemplify the foremost legal institutions in the world.
The statute establishing the ICJ also includes provisions to ensure the impartiality of the judges. One such provision is Article 17, paragraph 2, which states, “No Member [of the ICJ] may participate 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.”
The present case involves the question of whether one of the judges on the ICJ ought to be permitted to participate in the case or be disqualified under this provision because of his previous involvement in the issue before the Court. The case was brought to the ICJ by the Government of Israel in a letter addressed to the Court Registrar, dated December 31, 2003. In that letter, the government asserted:
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.
Israel objected to the connection that Judge Nabil Elaraby of Egypt had to the case because of his involvement in a number of initiatives that touched on several sensitive issues involved in the dispute. Specifically, Israel pointed to the judge’s contributions to the Tenth Emergency Session of the General Assembly of the United Nations, his employment as a legal counselor to the Egy p tian Ministry of Foreign Affairs, his work as a legal consultant to the Egyptian Delegates to the Middle East Peace Initiative at Camp David in 1978, and his connection to certain actions resulting from the 1979 Israeli–Egypt Peace Treaty, especially the development of independent West Bank and Gaza Strip territories. Finally, and pe r haps most significantly, the government of Israel pointed to an interview printed in a newspaper in Egypt in which the judge di s cussed his personal political views in relation to the nation-state of Israel. A majority of the judges on the ICJ saw no problem with Judge Elaraby’s involvement in the activities to which Israel objected. Specifically, they saw no problem with his role as legal advisor for Egypt, because in that capacity, the judge had been speaking and acting as an agent of his government. In relation to the published interview, the majority pointed to the fact that Article 17, paragraph 2, detailed certain roles that a judge was prohibited from performing in a case that was before the court. Nothing on the list, the Court concluded, mentioned giving interviews or publishing private political views. Therefore, the majority upheld the judge’s participation in the case.
The sole dissenter was Judge Thomas Buergenthal of the United States. While Judge Buergenthal agreed with the court in relation to Judge Elaraby’s official governmental roles, he disagreed about the private interview and objected to the Court’s strict and limited interpretation of Article 17, paragraph 2. This point is critical because, as noted previously, in an advisory case, a dissenting opinion can sometimes be just as vital as the majority opinion, because the dissenter’s rationale may be used in other venues.

 Dissenting Opinion of Judge Buergenthal:

1. I have voted against the instant Order because I believe that the Court’s decision is wrong as a matter of legal principle.
2. Israel challenges Judge Elaraby’s participation in these proceedings on the ground that his previous professional involvement and personal statements on matters which go to the substance of the question before the Court in this advisory opinion request require that he not participate in these proceedings.
3. As far as Judge Elaraby’s professional activities as diplomatic representative of his country and its legal adviser are concerned, the Court rejects Israel’s objection by concluding that these activities, having been performed many years before the question of the construction of the wall now submitted to the Court first arose, do not fall within the activities contemplated by Article 17, paragraph 2, of the Statute to justify that he be precluded from participation in the case.
4. With regard to the newspaper interview that Judge Elaraby gave two months before his election to this Court at a time when he was no longer his country’s diplomatic representative, the Court finds no basis for precluding Judge Elaraby’s participation in these proceedings, because Judge Elaraby “expressed no opinion on the question put in the present case.”
5. Israel seeks Judge Elaraby’s disqualification on the ground, inter alia, that the views expressed by Judge Elaraby in the interview bear directly on issues that will have to be addressed in the advisory opinion request and that, given their nature, they create an appearance of bias incompatible with the fair administration of justice.
6. In principle, I share the Court’s opinion that Judge Elaraby’s prior activities, performed in the discharge of his diplomatic and governmental functions, do not fall within the scope of Article 17, paragraph 2, of the Statute of the Court so as to prevent his participation in these proceedings......

Question

1. Why did Israel bring this case rather than a private party? Explain.
2. What is the central issue in this case?
3. What legal statutory provision provided grounds for the co m plaint lodged by Israel?
4. What was the decision of the majority? Explain.
5. On what point did the dissent contest the majority opinion? Explain.