The Court's decision came in response to documents submitted by Israel, but judges, voting 13 to 1, decided last week that the country's concerns were "not such as to preclude Judge [Nabil] Elaraby from participating in the present case."
According to the ICJ, 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 found that the activities Israel referred to were performed in Judge Elaraby's capacity as 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 arose.
The Court also noted that the 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 a representative of Egypt. It further observed that in the newspaper interview in question, Judge Elaraby expressed no opinion on the question put in the present case.
In a dissenting opinion, Judge Thomas Buergenthal of the United States noted 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 added, however, that he has no doubts whatsoever about the personal integrity of Judge Elaraby for whom he has the highest regard.