In the second of those letters, which was confidential, Israel contended that Judge Elaraby, both in his previous professional capacity and in an interview given by him in August 2001 to an Egyptian newspaper, had been “actively engaged in opposition to Israel including on matters which go directly to aspects of the question now before the Court”.
In its Order the Court observes that Article 17, paragraph 2, of the Statute excludes a Member of the Court from participation 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 Court further recalls that, in the case concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), the Government of South Africa had objected, under Article 17, paragraph 2, of the Statute, to the participation of three Members of the Court in the proceedings. Those objections were based “on statements made or other participation by the Members concerned, in their former capacity as representatives of their governments, in United Nations organs which were dealing with matters concerning South West Africa”. At the time, the Court reached the conclusion that such activities did not attract the application of Article 17, paragraph 2.
In its Order, the Court finds that in the present case “the activities of Judge Elaraby referred to in the letter of 15 January 2004 from the Government of Israel were performed in his capacity of a diplomatic representative of his country, most of them many years before the question of the construction of a wall in the occupied Palestinian territory, now submitted for advisory opinion, arose”; that “that question was not an issue in the Tenth Emergency Special Session of the General Assembly until after Judge Elaraby had ceased to participate in that Session as representative of Egypt”; that “in the newspaper interview of August 2001, Judge Elaraby expressed no opinion on the question put in the present case”; and that “consequently Judge Elaraby could not be regarded as having “previously taken part” in the case in any capacity”.
Judge Buergenthal appended a dissenting opinion to the Order of the Court and a summary of that opinion may be found below.
Summary of the dissenting opinion of Judge Buergenthal
In his dissenting opinion to the Order, Judge Buergenthal concludes that in the interview Judge Elaraby gave two months before his election to the Court in 2001, he expressed views bearing on the credibility and validity of arguments likely to be presented by the interested parties to this case and likely to affect its outcome.
Judge Buergenthal considers that the expression of these views by Judge Elaraby, when he was no longer speaking for his government, creates the appearance of bias incompatible with the fair administration of justice, requiring that Judge Elaraby be precluded from participating in this case. Judge Buergenthal however points out that he has no doubts whatsoever about the personal integrity of Judge Elaraby for whom he has the highest regard.