•
• INTERNATIONALCOURTOFJUSTICE
•
•
•
• Advisory Opinion
• Legal Consequences of the
• in the Occupied Palestinian Territories
•
• WRSUBMITTEDTEMENT
• THE HASHEMITE KINGDOM OF JORDAN
•
•
• 30January 2004
• •
• TABLE OF CONTENTS
• 1. Introduction
• Il.General background
• IV.Relevant factsground
• V. Relevant legal considerations
• (a) The Court' s jurisdiction
• (i)The request raises a legal question which the Court has
• jurisdiction ta answer
• Court ta refuse ta give the advisory opinion requested of it.
(b) Applicable legal principles
• determinationius cogenss ofuse of force, and the right of seIf-
• (ii)The territory in whîch the wall has been or is planned to be
• international lawitutes occupied territory for purposes of
• (liiThe law applicable in respect of occupied territory limîts
• the occupying State's power$
• Stateccupied territory cannot be annexed by the occupying
• (c) Applicable legal principles and the construction of the wall
• alIDex occupied territory or otherwise to alter its statusy to
• (ii)The occupying State does not have the right to alter the
settlements balance in the occupîed territory by estabIishing alien
•
• ->-
:.1.
-11-
• (iiThe occupying State lSnot entitled in occupied territory to
• unlawful control over and de facto annexation of that territory orts
• any part thereof
• conshuct a wall which serioimpairsd disproportionally
• rightsjoyment by the inhabitants of that territory of theiThuman
• (v) The occupying State lSnot entitled in occupied ten:itory to
ownership of their land and propertyt territory to the effective
• (vi)AState's right of self-defence in respect of its own
• buildwall teDoentito exercise that right by
• in territory which is not its own, sueh as occupied territory,
• (b) ta proteet settlements whieh it has unlawfully
• introduc.ed into occupied territory
- construction and planning of the wall require reparation to be the
made.
1- VI.SUlnmary of]ordan'sStatement
VILSubmissions
•
•
•
•
•
•
••
• 1. Introduction
•
1.1nordansubmitted to the International Court of Justice ("the Court") in
• response to the Order of the Court made on 19 December 2003 inviting
• MemberStates of the Uniteby30January 2004, wrîtten
• statements on the question subnutted to the Court for an advisory opÎnÎon.
1.2On 8 December 2003 the General Assembly of the United Nations; at its
• resumed tenth emergenc7 special sessIon adopted resolution AI RESjES-
• 10/1iwhich it requested thetarender an advîsory
• opinion on the following question:
"Whaarthe legal consequences arising from the
• occupyiPower, in the OcPalestinianIsrael, the
• descriinthe report of the Secretary-General,salem, as
• law, includingthe Fourth Geneva Convention of1949,nal
and relevant Security Council and General Assembly
• resolutions?"
• 1.3At an earlier stage of the Assembly's resumed tenth emergency special
• sessÎon the General Assemresolution ES-I0j13 of 21
October 2003. In paragraph 1 of that resolution the Assembly
• "demandlthaIsrastopandreverthe
• Territory, incIuding in East Jerusalem,d Palestinian
• and is in contto releprovisions oftice Line of 1949
internatio.allaw"
• 1.4That resolution, in paragraph 3, also rtouested the Secretary-General
• report periodically on compliance with the resolution, but with the first
•
••
• report to be on compliance with paragraph 1.The Secretary-GeneraI duly
• subrnitted first report on 24November 2003(UN Doc. AjES-IO;248).
• At paragraph 28of that report the Secretary-General,
concluded that Israel 15not in compliance with the
• construction of the wall in the Occupied Palestinian
Territory."
1.5 That report was placed before the resumed tenth emergency special session
• of the AssernblyO8 Decernber 2003,and was expressly
referred to in the Assembly's request for an advisory opinion.
• 1.6 In addrthe Issues which arise inJord15 proceedings
• constrained to note that the substance of the matter which is the subject of
• partiythe historical facts going back more than 50 years. Those factsfact,
• shape the Iegal issues wlucin these advisoryration
proceedMoreovthe legal issues themselves are exceedingly
• cornplex and in many rand require the most careful
• analysis.
• 1.7 Jordan will in this written statement address the relevant facts and Iegal
• Should the Court consider that it would benefit from a fuller exposition ofrt.
• the matters of fact or Iaw which arise in these proceedings, Jordan is ready
to respond to the best of its ability to any such request which the Court
• with such a request would cause delays during which, notwithstandingompi y
• that the matter is subjudice,further construction of the wall could continue
• tOCCthereby prejudicing the present proceedings, the Court, acting
• pursuant to Articles 41and 68of the Statute and Articles 75, paragraph 1,
•1.
• 3
• whether the circumstances require the indication of provisional measures.
•
•
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1.
[.
•
•r
1.
IL General background
• 2.15ince June 1967, that is for nearly 37 years, the 5ecurity Council and
• General Assembly have been painsisting that the
terrioccupied aftthe 1967war, and particularly the West
• Bank and East Jerusalem, are "for pUTposes ofoIies"
• Iterritoriesare governed, and limited, by international Iaw;and in particular
• bthe Fourth Geneva1949These resolutions have had no
l10ticeable effect onNo progress has been made in
• the situation now lS probably worse than it has ever been.rritories; indeed,
•
• 2.2The events leading up to the General Assembly's request for an Advisory
• continued occupation of terri tories, which do not belong to it, for the thirty
seventh consecutive year; and Israel'sdecision to build a wall along a route
• which suggests a purpose weIl beyond the stated justification of seIf
• defence.eed, given the wall's route peneh·ates deep into Palestinian
• settlement blocs in the territoIies welI behind it, it
would appear that a principal aim behind the wall' s consh·uction is the
• Israeli Government' s dthese blocs and assure their
• long-tpresence. And rather thanof almost fourpation
• dportions of the West Bank.to annex substantiaI
•
2.3 AlI this weighs against the in the Middle Eastrated
• "peace effort in the Middle Eastas expressed "land-for-peace", every
• for the first time in Security Council Resolution 242 (1967).
• 4
• •
• 5
• 2.4 Indeed, by the time the General Assembly requested the Advisory Opinion
on 8 December 2003, the only prescription avaiIable for a resumption of
• Elaborabythe United States, the Rthe EUTopeanation,
• Union and the United Nations throughout the Autumn of 2002, and then
launched in Aqaba, Jordan, on4June 20plan"is "performance-based
• was desigtbridge the need for an ImmCUTrentend to the
• hostilwitthe vision first articulated in Security Council Resolution
• United Si24June 2002, of two States, Palestine and Israel, existing
side-by-side in peaceand security. To thatend, the"Road Map" elaborated
• a series of parallel sieFs required from bath sides, using for its terms of
• reference the principles of bath the Madrid Peace Conference of 1990 and
• of"land forpeace"; Security Council Resolutions 242(1967), 338(1973),and
i. 1397 (2002); agreements previously reached by the parties; and the Arab
f. State visionnbe possible ifit were based on a full withdrawal by the two
Israel from the territories occupied by it in June 167.
• 2.5 Regrettably, the Road Map's eahas been undercut:
• oftensulted in the loss ofinnocent Palestinian life,as weIl as its procIivity
• for enforcing colIectiagainst "prpersons", the
Palestinian civiIian populatiinterclosures and, through
• the demolition of homes, prevented the building ofany confidence among
• the Palestinians. Neither wapossible in IsraeI whiIe
• authored by Palestinian extrreguIarly found lethalopulation and
expression.Il instances, the Hashemite Kingdom of Jordan took a firm
• position byemniuruoeservedly actions undertaken by both the
•
• • 6
• Israeli Government and by the Palestinian militants inbringing onIy misery
• and suffering to the civillan population of the other.
• 2.6 Yet, in spite of the set-backs toftwû implementation of the "Road Map"
• informai peace initiatives begun on 27 July 2002 and 1 December 2003
respectively: the Nusseibeh-Ayalon peace plan, and the Geneva Accords,
• appeared to be sorne much-needed momentum for a renewal in peace what
• making. Israel's decisionwall, along the route chosen, puts an
• end to that possibility. For the walI has already begun to truncate the
• even their Qwn existence on their land, and creating fears eIsewhere.
•
• 2.7claybefore President GeoruvisIon of a two-Statetruction on 23June 2002,one
settlement, Israel argued the wall would serve the purpase of enhancing
• security, by staving off the attacks of Palestinian militants. This submission
• Governrnent on 1 October 2003to the trueatsroportionateIsraeli
• posed to it, in view of the negative effects the wall engenders for the
1. Palestinian population at large, nor could the route be justified by the
• principleilitary necessity.
2.8Against this generaI background to the current situation, the Court may
• War.bbriefly reminded of the hîsWorldof the area after the First
•
• 2.9Mandate for Palestine was entrusted ta the United Kingdom in 1920by the
• League of Nations, formally approved by the Council of the League on 24
• July 1922, and entered into force on 29 September 1923. Initially the
• 7
• Mandate covered Palestini1922 Transjordan wast
• excluded from the application ofkey provisions of the Palestine Mandate.
• Palestine continued, however; to be subject to the initiaI mandate of 1919.
• Map No. 1 following page (7).estine under the Mandate lSindicated in Sketch
•
2.1followed the consent of the Council of the League to a proposaI submitted
• on 24 July 1922 by the ia memoranto thent
• Councit stating that in accordance with Article 25of the Palestine Mandate
• League to pass the foIIowing resolution:ry, invites the CounciI of the
•
• Palestine are not applicable to the territory known as
east of a lIne drawn from a point two miles west of the
• the centre of the wady Araba, Dead Sea and Riverp
• up the centre of that river to the Syrian Frontier."
• On 22 March 1946 Treaty of Alliance was signed between Great Britain and
• TransjItproc1aimed Transjorand Amir Abdullah Ibn
• Al-Hussain its sovereign.
2.1In the years irnrnediately following the Second World War the situation in
• the terri tories coverfor Palestine was troubled.
• a1so extensive during this period. In 1947 the British Government sought
• the United Nairesolving what had become known as 'the
• Palestine Question'. On 29 November 1947 the General Assembly adopted
• Power that it plalUled to complete its evacuation of Palestine by 1 August
••
• ,~o
• Mandate} ,v'" SYRIA
l!all"o,
• !
• TA~,; ,,
• ;;Jer0n)em GAZSTRI~V)JRJU",,!em
Ga~(I.,."do,.r1 ~o- /C..iDAN
• -/'ISRAEL \v
•
• EGYPT EGYPT
• ,'1
• SlŒTCH M/I;P No.:,
•
• SYRIA
•
•
JORDAN
• WEST BANK
• ,' )sraeI1S67J by
• ISRAEL \)
• EGYPT
•
•
•• 8
• 1948 and stipulated that the Mandate for Palestine should terminate as
• saon as possible but in any case not later than 1 August 1948. Il also
• States; with an iJerusalem. Theof thearies independent Arab
• proposed territorial units under this partition plan are illustrated in Sketch
• Map No. 2 following p. 8. This partition plan would have allocated sorne
• including mast of the best arable and cultivated land which was home ta,
a substantia! Arab population: butathis aHocation was disproportionate
• time. The plan was unacceptable to many concerned parties and was thusthe
• rejected.
• 2.1Inter-costrife and anti-British violence increased almost to the
• proportions of civil war. The British Goverrunent announced its intention
• the Mandate was ta expire, the establishment of the State of Israel was
• proclaimed in a radio address by David Ben Gurion on 14 May 1948.
• 2.13lthough there is now no room for contesting Israel's current status as a
lawfuI member of the international community, it has to be recalled that
• Israel was created in armed confliet against the local (i.e. Palestinian)
• Crawford has noted, "Israel was created by the use of force, without the
• consent of any previous sovereign and without complying with any valid
• (1998-1999): Two Studies in The Reality off States', in
• InternationlHonouroflanGoodwi&Talmon
• eds., 1999, at p. 108.
•
••
•
•
• I~_f---J
• 1.i~.;,~·-I--~.l.ol~
•
•
•
•
•
•
•
•
•
.~-L ____ _~~~__ _____ _____
• SkETMAP2-o,
•1
•
• 9
2.1The proclamation of the State of Israel led immediately to the outbreak of
• neighbouring ArabStates seeking to proteet the Arab population and lands
• of Palestine. The ensuing Arab-Israel hostilities resulted in Israel securing
• the territory under its control.s authority ove!
•
• 2.1accQrded toIsrael under the UN partition plan endorsed by GA Resolution
• 181(11)(1947). That Resolution does not, therefore, provide the basis for
• territorial extent at the Qutset of its existence was based on the ArITÙstice
• Agreement of 3 April 1949 which brought the Jordanian-lsraeli hostiIities
to a formaI cessation. That Agreement, following the cease-fire of January
• conceived of as an international boundary, itserved in practice, conHrmed
• by the passage of time, to circumscribe the Iimits of Israel's land territory
• Arab hands certain parts of that former mandated territory, namely Easteft in
,. Jerusalem, lands on the West bank. of the River Jordan ("the West Bank"),
line separating Israel from the West Bank'was known as "the Green Line".e
•
• 2.1effectively under the auspices of the United Nations. The cease-fire Enes
• diverged considerably from the Enes set out in the Partition Resolution. In
• and parts of theSouthern West Bank, aIl ofwhich had been assigned to thefa
Arab Sithe Partition Resolution, were effectiveIy under Israeli
• Jewish population centres. For example, inJerusalem the front line divided
•
•• lü
• the city into Iwo halves, East and West. ln the North, the lines left in Iraqi
• army hands Jenin, Tulkarm, Qalqilya and the narrow corridor in the coastai
• plain, holding Wadi Aara and the chain of hills overlooking Israeli held
• However, in talks preceding the RhIsraelrmÎstice negotiations,
consented to the replacement oorJordanian arrny with that
• Forces. This was conditional upon leaving the towns of Tulkarm, Qalqilya
• and JiJordanian hands, and making an adjushnent of the front line
• would be under Israeli control. In the Southern and Central areas, Jordan
• waicontrol of the Hebron region apart from Beit Jîbrin. The Armistice
demarcation line ()defined in Articles 5 and 6 of the
• on Sketch Map No. 3 following page 7.greementof3 April 1949is illustrated
•
• 2.17It follows that the territory of IsrtoL at the date of its admission
• 70 of 4 March 1949 and General Assembly Resolution 273(I1I)of 11 Mayon
1949, was no greater than that area left under its control by the Armistice
• Agreement. The remaindeterritory of Palestine was
• not now) open to conquest, accession orsettlement by Israel, and Israel hadis
• (and has) no latent or putative daim to sovereignty over it.
• 2.18In 1948, during the Arab-Israeli hostilities, the only effective authority in
relation to the West Bank was that of Jordan: in December 1949 the West
• Bank was placed under Jordanian mIe, and it was formally incorporated
• into Jordan on 24 Apl'i11950. This was the result of the signing by King
• Assembly (including representatives of bath East and West Banks), which
• supporthe unity of the two Banks as one nation State called the
••
Il
• Hashemite Kingdom of Jordan, "without prejudicing the final settlement
• cooperation and in•ernational justicenational aspiration, inter-Arab
•
• 2.1requests made by the Palestinian Arabs through conferences attended byier
• the elected Mayors of major West Bank towns and villages (Hebron,
• weIl as leading religious c1erics (Muslüns and Christrans aIike), and a
• multiplicîty of notables, tribal leaders, activists, college presidents, the
• CFollowing these conferences, King Abdallah consented ta a proposedi.
• constitutional amendment to expand the membership of the Jordanian
Parliament to inc1udefrom aIl the West Bankes
• 1950 and a new Parliament was elected with half of its members electedApril
• from the West Bank.
• 2.2Thisrovoked something of a crisis in relations between Jordan and other
• Arab States, but any risk of serious problems was averted when the
• GPalestînian territory was "without prejudice to the final settlement" of the
• Palestinian problem: this dec1aration was accepted by the Arab League.
• 2.2The boundaries of the Hashemite Kingdom of Jordan as it resulted from
• with thosepublidy known boundaries thatJordan becamea Memberof the
• United Nations in 1955, without any objection about Jordan's territorial
etime a Member State). Furthermore, after the unification of the West Bank
• withinJordan' s territory, Jordan concluded with a considerable number of
•
••
• 12
• entirety of Jordan including all of the West Bank: none of the other partiese
• to those tTeaties made any reservation to the effect that their applicability
• view when it adopted Resolution 228 (1966): the Couneil observed that,hat
• "the grave Israeli Military action wruch took place in the southem Hebron
• and carefully planned military action on thetenitory ofJordanby the armed
• forces of Israel" (emphasis added).
2.2In 1967Israellaunched an aggressive waron its neighbours, and as a result
• Jerusalem, inter alla, were occupied by IsraeYs armed forces. Since the
• legality of Israel's conduct in planning and constructing a wall in the West
• terrTtories and 5ineetheir sinhichisgoverned by the circumstancesose
• the 1967conflict are relevant to the answer to be given to the question ono
• wruch an advisory opinion has been sought.
• 2.2Those events thernselves have a background which is relevant notonly to
• folloItevident from the public record that from the earliest daysct and
• of its existence Israel has been driven by an overriding poliey to secure for
• and to drive out of that territory the vast bulk of the indigenous Arab
• population in order to make room for an incoming]ewish population. The
• record set out at Annex 1 to this statement. On Israel's expansionistlic
• polides, particularly from June 1967 onwards, see also Nur Masalha,
•
• •
1. ImperialIsraeland the Palestinians:ThePolitiesofExpansion(2000);a copy is
being filed with the Court.
i.
2.2in the mid-1960s in the number of incursions into Israel by independentise
• Palestinian guerrilla groups and disproportionate massive Israeli military
• retaliaAlthothese incursions werterms nottary
• disproportharsBthe spring of 1967 the situation had become
• extrernely tense.
• 2.2Pact but, sensing that war was now likely, King Hussein suggested annce
• Egyptian-J ordanian Mutual Defenee Tryaty. PresidentNasser inunediatel
• accepted the idea, and the Treaty was signed on 30 May 1967.
• 2.26n the days preceding the outbreak. of hostilities on 5 June, Israel border
• positions with Jordan were reînforced, and included the introduction of
IIL2and Armex II.2 of the 1949 Armistice Agreement. Random srnall armsticle
• fire against Jordanîan positions in Jerusalem was also reported in the early
• hours5June.
• 2.27n 5June 1967 Isa surprise attack, virtually eliminating the
• Egyptian air force in a single blow. In response to the Israeli attack, to the
1 Israeli build-up and incursions across its border, and in accordance with its
• forces shelled Israeli milîtary installations. Israeli forces counteratlacked
• into the West Bank and Arab East Jerusalem. Israel now had complete
• control of the skies, and after a spirited defence of Arab East Jerusalem, the
,e ouhmmbered and outgunned Jordanian army was forced to retreat. When
• •
• the final UN cease-fîre was imposed in 11 June 1967,. Israel staod
1. possession ofa wide swathe ofArab land, including the Egyptian Sinai and
Egyptian-ocGaza Strip5GolaHeightandmûst
significantly in the present context, what remained of Arab Palestine - the
• Jordanian West Bank, including Arab East Jerusalem.
• 2.2The circumssurrounIsrael's use of force are sometimes
• no convincing evidence that, nor is there any truth in the suggestion that,
• Egypt,ria or Jordan, individually or collectively, at that nme intended
or planned to atlack Israel, or that Israel's existence was threatened at any
• time, or that there was any substantial or imminent armed attack on Israel
• the use offorce by Israel win the circumstances.onatecei and in any event
• This has been sbylater public statements made by Israeli
• leaders oftime. In particular, MT.Menachem Begin (Minister without
• Minisinan address to the Israeli staff war colIege on 8 August 1982l's Prime
t. pointed to the fact that the 1967 war was a warof choice. Begînstated that:
"In June 1967, we again had a choice. The Egyptian army concentrations in
• We must be honest with ourselves. We decided to attack him". (Annex 2,k us.
• at p. 4).Similarly, Yitzhak Rabin, Israel's Chief of Staff during the 1967 war
• and later Prime Minister of Israet in an interview with Le Monde is
divisions which he sent into Sinai on May 14would not have been enough
• to unleash an offensive against Israel. He knew it and we knew it."
•
• 2.2basis internatIt constituted a bOnof theiolation ofest Bank lacked any Iegal
• cardinal rules ofinternatlaw, namely that which
1.•
15
• prohibits resort ta armed force in international relations. That prohibition
• has the chius c(see below, paragraph 5.39 FF).
• 2.3Of the Statesinthe conflict, Jordan paid by far the heaviest
• priee. As a result of the of Thousands of Palestinian Arabs
• were displaced anEast Bank territories, or were forced ta
than two decades. Jordan's ecAbout 70% ofso devastated.econd time in less
• Jordan's agriwas located in the West Bank, which produced
• 60-65%of its fruit and vegetables. HalfofJordan' sindustriai establishments
• religious sites devastated the tourism industry. Altogether, the areas now
• occupied by Israel had accounted for sorne 38% of Jordan' s gross national
product.
• 2.3After the cease-fîre was secured, the Security CouncÎI on 14 June 1967
• unanimously adopted resolution 237(1967), caIling upon Israel to ensure
• military operatipland to facilitate the remrn of theof the areas where
• displaced persans. The Gavernrnents concerned were asked to respect
• scrupulthe humanprinciples governing the protection of
• of1949.nons in time ofwar contained in the Fourth Geneva Convention
• 2.3polides by adoptîng the (Amendment No. 6)Lawncegal force to its expansionist
'. of 27 June 1967. This Law extended the boundaries of East Jerusalern
• (which had occupied in the hostilities) to indude a number of outlying
• area, thereby effectively annexing East JerusaIem. These actions werextended
• condemned by the United Nations as involving unlawful changes to the
• -------------
•
• 16
• 13-0-2; 267(1969), adopted unanimously; 271(1969), adopted 11-0-4; anded
• 298(1971),adopted 14-0-1;General Assembl yResolutions 2253(ES-V)(4July
1967)and 2254(ES-V)(14July 1967). Notwithstanding thatcondemnation,
• lsraellaterconfirrof East JerusaleL'basicoptinga
• East Jerusalem taken togeth1eternal capital" ofbe the" (i.e.both West and
• Israel: tbis was agaibythe United Nations to be null
and void and ta be res(Security Council Resolution
• 478(1980), adopted 14-0-1; General Assembly Resolution 35/122 C (11
• December 1981). and General Assembly Resolution 36/120 D and E (10
•
2.33Aitfifemergespecial session in July 1967, convened after the
• international ta extend emergencassistancerianon Governments and
• ta those bythe war. The Assembly asked Israel ta rescind aIl
• measures already taken and to desist from taking further action whîch
• would alter the status ofJerusalem: UNGA Resolution 2253(ES-V)(4July
1967).
• 2.34Later that year, on 22 November 1967, the Security Council unanimously
• principles for a pein the Middle East. The resolution
• emphasîses "the inadmissibility of the acquisition of territory by war" and
• stipulates that the establishment of a just and lasting peace should include
the application of two pof Israel armed forces from
• or states of and respect for and aof theedgementd "terrnination
• sovereignty, territorial integof every Stateîcal independence
• in the area and their right to live În peace wîtrun secure and recognized
••
17
• boundaries free from tThe resolution affirms the
• need for //acrueving a just settlement of the refugee problem". Resolution
• 242as reinforced six years later by SC Resolution 338 of 22October 1973.
• 2.3EgyptandjordResolution 242(1967)andconsidered that Israeli
• to negotiations. Israel, which also accepted the resolution, stated that the
• questions of withdrawal and refugees couId be settled only through direct
negotiations with the Arab States and the conclusion of a comprehensive
• peace treaty.
• 2.3as demaby UN resolutions, Israel irrunediately began to plan athe 1967 war
• programme of encouragininthe West Bank areas live
• which had come under Israeli military occupation. Very soon after the
• presented to the Israeli cabinet a plan for Jewish seUlement of the West
• Bank. Although not formally approved, the' Allon plan' was the basis for
Israeli paIllical movement) promulgated its Qwnsettlementplan which was(an
• more extreme than the' Allan plan' and envisaged the settlement of "Eretz
• Israel" (i.e. the whole of Israel's land, induded in which were the occupied
• as government policy.7Gush Emunim' s plan was essentially adopted by Israel
•
• 2.37his poEey has been described as having,
• West Bank; designed to ensure, bysheer numbers and
• that Arab control could not be established in thees,
aimed for the eof such a substantialed as'creating facts';
•
• 18
settler presence that fuIr Isrwould behdrawal
impossiblPlayfair in International Law and the
AdministrationofOccupied (1992pp. 6.7).
2.38 To tms end, official assistance (mainly în the fcrm of tax relief and
subsidies) was bythe Goverrunof Israel to the cooftruction
• settlements in the accupied Jewish settlers were encouraged
tomove.
•
2.39 This poliey, manifestly designed to alter the ethnie composition of the West
Bank in c1ear violation of applicanorrns, was reinforced
sinee its earlydays byan equally unlawful enforced change in geographical
terminoloAn order issued by the Israeli militaon 17vermnent
December 1967 effectively re-named the West Bank as "the Judaea and
Samaria Region". That new teris now the stanusage in
official Israeli staternents.
• 2.40 Israslsettlemeprograrruhas been consîstconderrmeas
unlawfuby the internatcommunitysee, for examSecurity
•
Council Resolutions 446 (1979), anNotwithstandisuch
• condemnatiohowever,theu:nlawfusettlemeprogramme has
• continued and expanded.
• 2.41 In 1987, and against the backdrop of intense diplomatie activity involving
the P.L.O., the United States and Jordan ,among others, a PaIestinÎan
• popular uprising (the Intifada) against the Israelî occupation broke out in
the Gaza strip and spread to the West Bank. Arab support for the Intifada
• grewculminating Arabemergencsununit in Algiers in June 1988 to
discuss ways and meanS of suthe Intifada. It was against this
• backgrounthat on 31 July 1988 King Hussein of Johisn announced
• decision to commence" admiandtlegdisengagemefrom the
• West Bank" In elaboration of the reasons for his decision the King said:
•le
• 19
• Palestinian and Arab orientation toward highlighting
activities that are related to the Palestinian question
• and its developma1become obvious that
• and administrative relationship with the West Bank ..
to the PalesstruTwhich seeks to wincle
• considering that it is a Just national issue of a people
• struggling against foreign ithepation. Since this
• wish and a strong Arab willingness to promote theian
orientation and to meet its requirements."s
•
• 2.42iven that at the tirne the West Bank was under IsraeIi occupation and that
• inany event in practice someit is cIear that Jordan's the West Bank was
disengagement decÎsionfrom thaopening of the door
• to the reaHsation of Palestiniaspiratas thisination
• decision coincidede recognition by the United States of the P.L.O.
as the sole representative to the Palestinian people. In no way was Jordan' s
• disengagement a surrender of the West Bank to Israel! authority. With
• IsraeI's presence thihad been since 1967, solely a matterli territory and
• offoreignmilitary occupation. This isborne out by thecontinuedconsistent
references in Security Council and GenJuyl Assembl yresol utions after
• 1988 to the West Bank as occupied territory: the 1988 "disengagement"
• made no difference at aIl in that respect. See, forexample, Security Council
• and to the terri tories in question as "fhe occupied Palestinian terri tories"
and reaffirrned the appIicabiIity of the Fourth Geneva Convention) and ta
• similar effecl, 641(1989), 672(1990), 681(1990), 694(1991), 726(1992),
• 799(1992),04(1994),fiveofwhich wereadopted unanimously; General
••
• 20
• as those mentioned in relation to SC Res. 636(1989),and many subsequent
Resolutions have been in similar terms.
•
• 2.4In October 1994Jordan and Israel concluded a Peace Treaty, which entered
• provisions relevant to the West Bank In particular, Article 3 dealt with the
question of the internationaland Israel. The firstan
• three paragraphs of Article 3 are as follows:
• "Art3 International Boundary
• 1. The internatiobehveJordan and
Israel 1Sdwith reference to the boundary
• l(a), on the mapping materials attached thereto and
• coordinates specified therein.
• permanesecuandrecogniinternational, i5 the
prejudice to the status of any terri tories that carne
• urider Israeli milit1967.overnrnent in
• weIl as each other' s territory, territorial waters and
• with them."s inviolable, and will respect and comply
• 2.44The Armex l(a)ta in para1 of Article theelimits
• (from North to South), the Jordan and Yarmouk Rivers, the Dead Sea, the
• Wadi Araba/Ha'arava, and the Gulf of Aisba. That delimitation
somewhat technicaI and complex, as can be seen from the text at Annex 3.
• Part of the first sectas delimited in Annex I(a) runs
• along the eastern edge of the Win Article 3.2 ofulation
• the Peace Treaty that the boundary ioanythout prejudice to the status
•• 21
• terri tories that came under Israeli milîtary goverrunent in1967isreinforced
• bythe terms o2.(g) of Annex l(a), which reads as follows:
• "g) The orthophoto maps and image maps showing
• under Israeli Military governrnent in 1967 sha11haveame
• legend sha11carry on it the following disclairner:d the
'This line is theboundarytrative
• Israeli militarcontrol in 1967. Anyich came under
• status of that terrîtory'."n be without prejudice to the
•
• 2.4\~eBank as territory whîch does not belong to Israel but which is underof the
• Israeli miIitary occupation and as such subject to the 1949 Fourth Geneva
paragr**this conclusion is borne out by the continued consistent
• referencesrity Council and General Assembly resolutions after 1994
• to the West Bank as occupied territory. Moreover, the two Conferences of
• on 15 July 1999 and 5 Decembto enforce thesuresva Convention of1949held
• Convention in aIl the Occupied Territories, including Jerusalem, and the
• statement and the dec1aratîon emanatîng from the two meetings, further
respect. See, for example, Securîty Couneil Resolution 1322{2000),whkhat
• referred to Israel as ffthe occupying Power" and to the territorles in
• question as those "occupîed by Isrthe sinee 1967", and reiterated
• Resolutions 49/132 (19December 1994) which inc1uded those same t1uee
• elements (this resolution was adopted just thIee days after GA Res. 49/88
•
••
• 22
• ES-10/7 (2000), ES-10/9 (2001), among many others.or the Peace Treaty), and
• 2.46 surrunarise, ever sinee the United Nations became involved, in the
• aftermath of Israel's aggression against Arab States in June 1967, the
• Security Council has
• • continued to express its concern about the situation on the ground,
• • government to change the status of Jerusalem,
• • called for the cessaactivity, which itttlement
• determined had no legal validity,
• • reaffirmed the applicability of the Fourth Geneva Convention to the
• including Jerusalem, andael sinee 1967,occupied
• • referred consistently ta those terrrtories as occupied territories.
• 2.47quivalent action has also beIn taken by the General Assembly
• numerous resolutions.
•
•
•
•
•
•
• •
• IIIImmediate backgrow1d
• 3.1Against that general background to the present situation in the West Bank/
• construction of the wall which lSthe subject of the present proceedings for
,• an Advisory Opinion.
,.
3 .Israet M!. Ariel Sharon, made a visit to the Hararn Al - Sharif area in
• Jerusalem. This visit was referred to in Security Couneil Resolution 1322
• (2000)as "provocative" and theCouncil "deplored" such provocation. As
• erupted and the Israeli Forces used force to bring them to an end, resulting
• in80Palestinian deaths and numerous casualties in the inunediate ensuing
• election in Israel that brought the Likud Party to Power with Mr. Sharon as
Prime Minister. Bythe tirne theelection was over Israeli forces had aIready
• moved inand reoccupied many Palestinian cities and towns. Israel refused
• upon Israel to Withdraw its forces back to the pre 28 September 2000alling
• positions in order to recreate conditions to restore and resume the Peace
• Process. This stalement led to further frustration and a vicious cycle of
• disproporIsraeIi reactions that iiillegalan expansion
seulement ithe occupied West Bank inc1uding East Jerusalern, to
• a point that wathe entire edifice of the Peace Process andany
• prospect for the emergence of a viable Palestinian State.
• 3.3On 14 April 2002 approDecision which called for the
• barriers extending for 80 kHometres. On 23 June 2002 the IsraeIi Cabinet
• 23
••
• 24
• in parts of the West Bank and Jthat the barriercisionstated
• "is a security measure" which "does not represent a political or other
border". The routebythis wall was not made public at the
• fenwilbe decided by the prime mlnister and rninister of defence".oute of the
• Thereafter subsequent Cabinet decisions, particularly those taken on 14
• August 2002 and 1 October 2003, established the full route to be followed
bythe wall.
• 3.4 TIle announcement that planby Israel, and the start
• made to put it into effect, wasinternationalof widespread
• condemnainduda declarfrom the EuUnion on 18
• November 2003. (See text at Annex 4).
3.5 The international reaction critical of Israel's decisions to construct the wall
• which it had planned and begun to build was made evident in debates in
• debates on 21 October 2003 and 8 Oecember 2003 during the CQurse of the
• resumed Tenth Emergency Special Session of the General Assembl y.
• 3 .6wall wilI form line stretching 720kilometres along the West
• Bank, more than twice the length of the entire Green line. A map of the
• route, both and pIanned, wasby the Ministry of
• Defence on 23October 2003 (Annex bthe waIIoute to be followed
the general direction of, but runs on the Arab Palestinian side ot the course
• of the Green Line which marked the by thefire line established
• ArmistAgreemof 1949, defrom it in places up to 22
• kilomeinto West Bank territory {a deviation which has to be seen
•1.
• 25
• against the fact that the West Bank itself has a wÎdth which ranges between
1. Green Line comprises975 square kilometres, or 16.6 perthe wall and the
i. cent of the entire West Bank.
• 3.7 of the wall have been completed, and a further 25 kiIometres are due for
completion in the near future. Sketch Mar No. 6 following page 25
• indicates the completed, the planneand thetill-to-be-completed,
• officially contemplated sections of the wall, and alsa marks the course of
• the 1949n Line.
3.8 Several features of the route followed by the wall are noteworthy
•
• (1)north-western boundaries of the West Bank(running for a total of
• 142 kilometricertain sections south of Rarnallah, ta the
eastJerusalem, and north of Bethlehem.
•
• contemplaWhile details may no dbetweenange
• plannandconstruction, the bfolIowed by the
wall is already clearly established on the basis of official reports and
• maps published by the Governrnent of IsraeL
• (c) Looked at in very broad terms, the final result of the wall as
• construcso far, as fplanneandaspubIicly
contemplinofficially-released material will be to create two
• extends north from ]erusalem( embracing RamalIah toJenin) and the
• other extends south from JeBethlehem andcing
•
••
•
•
•
• JenIn
•
•
•
•
•
•
• ,
• ,
• ,
• Hebron
•
• Completed Waller Construction
• AppThe 1949 Armistice Line •
i' 26
Hebron), and there is a wall linking them and running sorne 10
• kilometres to the east of East Jerusalem.
• (2)(a) In the central northern sect~r 01the West Bank boundary, ta the
• north of]en5far constructed follows c10selythe course
• of the Green Line.
• (b) At the eassecthe planned course of the wall
whîle the offidally contemplfUTiherurse of the waII extendsry,
• south roughly parallel to/ and sorne 12 kilometres înto the West
• Bank side of, the River Jordan.
• (c) At the wessecthe plCQurof the wall
• already a completed section of the wall in that area whlch c10sely
• follows the Green Line.
• (3)(a) Along the north-western sector of the West Bank boundary
• (north 01Tulkarm) the completed wall runs broadly parallel ta the
Green Line, but several Bank.etres inside the West
• (b) In the centre of that sectoi8the present completed wall
• land projecting sorne 15 kilometres inte the West Banlef
•
• (4) the Green Line, but an extensioofto the wall running to the easty
• Tulkarm and several kilornetres into the West Bank is planned,
• by the wall.to make Tulkarm a small enclave completely surrounded
•
•1.
• (5)Between Tulkarm and Qalqiliya the completed wall runs up to
• several kilometres into the West Bank.
•
(6) a further stretch of the completed barrier runs to the east of but
• Qalqiliya, thus compiand maian enclave.
• (7)South ofQalqiliya the completed wall, for the last few kilometres of
• îts contcourse, iseveral kîinto the West
• Bank.
(8)From that (5far) of the continuous cornpleted sector of
• tbe wall, and as far as Rarnaiplannede course of the wall
• only. It will generally run sorne 5 kilometres inta the West Bank
• stretchlng eastwards and northwards into the west Bank for up to
• 22 kilometres (at a point at which the West Bank is only sorne 52
• kilometres wide).
(9)At, and Just south of, Ramallah there is a short stretch of completed
• wall, and from there the planned or contemplated wall runs south
• to joinwiththlargBethlehem-Hplannor
• east of East Jerusalem (at a point where the West Bank narrows toe
• only about 30 kilometres).
3.9 Iis apparent from the general configuration of the course to be followed
• by the wall as constructed, plmmed or contemplated that it is impossible to
• regard it is servîng no other purpose than that of a defence of Israel's
• course of the wall along mueh of its length îs far removed from any Une. The
• plausible' defensive line' for the territories on Israel's side of the Green
•.------
,.
• Ramallah-Jeninnclaves is plainIy inconsistentle with a wall the two major
• enclaves; in pameular, the whole easternrnost rÎng ofthoseencirdingwallsse
• wall may help to defend (unIawful) Israeli settlements within the encircled
•• of self-defence.a purpose is not a permissible purpose of any Israeli right
•
•
•
•
•
•
•
•
•
•
• IV. Relevant facts
• (al The Israeli wall
• 4.1 The Secretary-General's Report of 24November 2003describes the wall in
the following terms:
•
• "9AccordintoIsraeMînÎstof Defence
consists of the followinga fenceomponents:er complex
• military forces of infiltrattDn attemptsi a ditch (up
• 4 metres deep); an asphalt two-Iane patrai road; a
• footprints) that runs parallel ta the fence; and a stack
perîmeter. This complex has an average width of's
• 50-70 metres, increasing ta as much as 100 metres in
• sorne places.
observasystems are being installed along thevarious
• watchtowers insome places where the Barrier consists
• of concrete waIls.allied compisent
from the main Barrier to the east. Two depth barriers
• Another three "depth barriers'" in the northern Westnk.
• Bank that have on sorne unofficial maps
official map. buiIt and23Octoberpart of the
• Il. Concrete waIls caver about 8.5 kilometres of the
• completed or under These parts of the
Barrier, which the Israel Defenee Forces (IDF) terms
• PalestinÎan population centres abut Israel, such as the
• JerusaIem. Sorne aunder construction,arts of
while others were planned and built separately from
• the current profect, such as part of the waIl next to
• 29
••
• Qa1qiliya, which was buwithin1996înconjunction
• a highway project."
• 4 .The wall thus involves quite a complex series of physical features,
extending eventually for sorne 720 kilometres along the West Bank with
• an averagedepth of50-70merres. Suclandystem requiresconsiderabIe
• for its construction.
• 4.3Within the fîrst phase sorne 21,000dunums ofland have been razed for the
• footprint of the wall, including the uprooting of more than 100,000 h·ees.
phase' of the wall, under the IsraeH self-declared 'security zone' .
•
• 4.4]erusalem) - will lie between the wall and the Green Line, according to the
• latest Israelî Government projections of the West Bank wall. Land obtaîned
• for the buiwalis requisîtioned ithe Westry orders
• orders are valid untiI 31 December 2005 and can be renewed. The orders
generally become effective on the date on which they are signed, and are
• valid even if they are notpersonally served on the property owners. Orders
• are sometImes left on the property itself or served on the village council
• or two weeks from the date ofsignature to object to the relevantcornmîttee;
• the property owner can also petition the High Court of Israel.
4 .The physical wall has sincOctob003 by the
• establishment of a closed area in the north-west part of the West Ban1eOn
• that date the Israel Defence Force CIDF") issued a series of Orders
• comprisîng the land between the barrier system and the Green Line. This
•
••
31
• Closed Area affects 73 square kilometres. The Orders provide that "no
• person will enter the searn zone and no one will remain there" .
• 4 .The IDF'ders a150 a new system of residency status.
• Residents of the Closed rrea are able to remain and others are able to
• However, Israeli citizens, permanent residents of Israel and those eligible
• toetum to Israel in accordance with the Law of Return can remain in or
move ftffrorn and within the Closed Area without a similar permît.
• (h)The human impact of the wall
• 4.7I15readily apparent that a wall havîng such features cannat fail to have
• serious and damaging consequences for the population living, working,
• visiting or travelling through the affected parts of the West BanJe
• 4.8The military requisitioning of the land needed for the construction of the
• provision made for objections and petitions is inadequate as a practical
• remedy for the Iossand upheaval suffered by thoseaffected. Although over
with the High Court on behalf of families or entire villages, this compares
• with the very large number of requisition oIders wruch have been made.
• 4.9AfUTtherserious and daflows from the establishment
• of the Closed Area by the IDF, and the introduction of the new system of
• residepermiIn the first place tmanifestlystem
• those eligible to irnmigrate to Israel, aIl of whom can remain in or move
• freely to, from and within the Closed Area without the need for a permit
Palestinians at a marked disadvantage.s. This discrimination places Arab
•
••
32
• 4.1While the Secretary-General reported (Report, para. 21)that most residents
• limited periods as short as one, three or six months. Non-residents of the
• Closed Area who needed or wantedCaccess to the Area had mostIy
• IDF-issued permit or ID card do not have unfettered rights of movementofan
• into and out of the ClosaIregulated by thed egress
• ta openings of only 15 ta 20minutes three times a day, but despite posteded
• opening tîmes, the gates are not open with any regularity. In sorne cases,
• the gate dîd not open for 25days during the period from late June till earIyya,.
• August 2003. In another case, a gate in the Baroun village in the District of
• farmers from getting access ta thér farms sinee that date. Such limited and
• artificial access anbearing no relationsrup to the
• situation of aIl those concerned whose regular access to their farmlands,e
• jobs, services, and familîes ISthereby denied.
• (c)The social and economic impact of the wall
• 4.1Such a denial of regular access, partîcuIarl y access to rands in order ta
• and indeed will do much te encourage them to leave it. In the past Israelrea,
• has exproland for not becultivand they
onee again intentionally moving in establishing this discrimina tory newael 15
• permît system.
•
•
••
• 33
• 4.1242,000 residents haIeatheir homciin searchlqiliya, nearly 10% of the
of sustenance anUelsewhere".
•
• 4 .1contextc10ssystem which Israel imposed after the outbreak ofation, but in the
• hostilities in Se2000 .That systemiforce, is still
• has as its maÎn component a series of checkpoints and blockades which
seveyrestrict the movement of Palecausmgn people and goods,
• increased such damage in communities along its route, primarily through
• the 105Sof, or severely lî:rnÎted access to, land, jobs and markets. This is
• demonstrated by recentreports by the World Bank and the United Nations.
As recorded in the UN Secreusfar the Barrier hast,
• prirnary water sources and 3 from e]ectrjcity networks" (para. 23). For
• reports on the impact of the wall, see 'The Impact of Israel's Separation
• Barrier on Affected West Bank Cornrnunities: Report of the Mission to the
• Humanîtaand Emergency Policy Group (HEPG) of the Local Aid
2003; Update Number 2,2003; Update Number 3, 30 Number 1, 31 July
• November 2003. See also United Nations, Office for the Coordination of
• Humanîtarîan AssÎstance, OPT, 'New Wall Projections', 9November2003;
• registrefugees', 1 October 2003; OUpdate,anitarian barrier on UNRW A
• Occupied Palestin1-1December 200AtReports
on the West Bank Barrier, 'Town Profile: Impact of the Jerusa1em Barrier',
• January 2004.
• 4.14Construction of the wall has greatly Încreased such damage in communities
• along its route, primarily tlrrough the 1058of, or severely limited access to,
• •
• 34
land, jobs andThis is demonby recent reports by the
• World Bank and the UniAs recorded in the UN Secretary-
• General' s Report,
"8far the Barrier has separated 30 localities from health services;
'. 22from 5choo15,8from primary water sources and 3from electricity
• networks" (para. 23)
• 4.15The Secretary-Report a180 shows that some of the harshest
• consequences of the wall's consh"byPalestinianste are faced
living in enclaves. The Report gives as an examples the towns of Qalqiliya
point, i5controlled by an IsraeIi milîtary checkpoint.entry
• "This has isolated the town from almost all its
separated from its markeAsUnitedervÎce5.
• cent decrease in casnorth~Barriererperienced a 40 per
• is currently creating an enclave around the town of
destroyed Israedemolition of at leastseven
• residences and 125 shop5."
• 4 .1In addition, the land and propertyithe District in 22 villages
oQalqiliya will be iwalatotal ofdunums(11,755
• acres)wilI bewestof the w7,750dunums (1,937acres) are
• destroyed by the wall.
• 4.17datthe majowhîchave been stores, an of incarnesource been demolished ta
• and survival for a numbeAt least an adstores,l75
20 faetories, 20 homes, and 1 primary sehool are subjeet ta demolition
• orders and demolition isexpected to take place in the near future, reslilting
•
••
• 35
in most of the village econOfinfrastrbeinge
• devastated. Nazlat Issa will be the tirst village to be destroyed aIong the
• wall.
4.18The operation of the completed sections of the wall has a particularIy
• severe impact on agriculture. As paragra5h 25 of the Secretary-General'
• Report states,
•
and QalqilproduceUS$ 22millioins of Jenin, Tulkarm,
• production in the West Bank. PalestinÏan cultivatedtural
• requisitioned and destroyed and tens of thousands of
trees have been uprooted. Farmers separated from
• must cross the barrier via the controlled gates. Recent
• irregular opening times and the apparently arbitrary
• granting or denial of passage. According to a recent
. Add. 2 dated 31 Oct 03) this haB inereased food
• recipients offood assistance asa direct consequence of
• the Barrier's construction."
4.19The wall runs through parts ofJerusalem as well as through the West Baill<.
• Its route through Jerusalem,
•
• "tens of thousands of urAconcretetinians. access for
already afacceto joanessential social
• services, notably schoo1sls. The northern
• commerciandsocial connefor tens ofg
repeated along much of the route through Jerusalem.
• The resideof sorne Jeridentcard
• holders are outside the barrier, while those of sorne
••
• 36
• This raiseabothe fu5taofholders are înside the Barrier.
• undcurrIsraeli laws": Secretary-General' st Jerusalem
• Report, para. 26.
• 4.2egress through the wall would do much to alleviate the socio-economic
• hann wruch has been identllied, but even if such an improved system were
• hardship. As the Secretary-General's Report states al paragraph 27:e and
"Moreosuch[improaccecannot
• destruction of property, land and businesses. This
• adequate standard of living."ns of the rights of the
•
•
•
•
•
•
•
•
•
•
•
••
• V. Relevant legal considerations
• (a)The Court'sjurisdiction
• (i)The requestmises a Legalquestion which the Court MSjurisdiction taanswer
• 5.1The Couds jurisdiction to give an advisory opinion derives from Article
• 65, paragraph lof the Statu te of the Court. This stipulates that the Court
• at the request of whatever body may be authorized by
• oNations to make such a request." of the United
• 5 .Article 96,paragraph 1, of the Charter of the United Nations provides that:
• "The General Assembly or the Security Council rnay
• advisory opinion on any legal question."ce to give an
• 5.3The competence of the General Assembly to request an advisory opinion
• extends to "any legal question", without restriction. Even if there were to
• legal question has to arise within the scope of the General Assembly' sat the
• activities, that condition would be satisfied in respect of the present
• 12) of its Advisory Opinion of 8 july 1996 on Legalityof theThreator Useof
• Nue/earWeapons(ICJ Reports1996,p. 226)leaves no room for doubt on this
matter.
• 5.4IAssembly is aquestion". The question put to the Court asks the the General
• Court toIthe legal consequences arising from" certain specified
• circumsIis a question
• 37
••
• 38
international law ... [and is] by lits] very nature
• susceptible ofareply based onlaw ..." (WesternSahara,
• Advisory Opinion, lCj Reports1975, p. 18, para. 15).
• 5.5To Tule on the question whîch the Court now has before it the Court must
identify existîng principles anand înterpretandationallaw,
• apply thern ta the circumstances now in question, and thus offer aresponse
• to the question posed based on law.
• 5.6Since theohas been rbythe General AsswilI bend
given by the Court ta the General Assembly, the lack of consent to that
• process from any particular State is not relevant ta the Court' s jurisdiction
• Opinion on Applicabiiity o22of the Convention on tltey
Privilegesand[rnmunitiesof the UnitedNations,ICj Reports1989:
•
• opinions on legal questions, enables United Nations
• conduct their activities in accordance with law. These
opinions are advisory, not binding. As the opinions
• the consent of States is not a condition precedent to
• 189,ara 31).ce ofthe Court to give them" (at pp. 188-
•
5.7The distinction between contentious cases (where consent is required) and
• CourInterpretationofPeaceTreatieswith Bulgaria,Hungary and Romania,
• ICJReports1950, where it noted that the
•
proceedeven where the Ranopinionr
• States. The Court's reply is oruy of an advisory
• character: as such, it has no binding force. It follows
••
39
• that no State ... can prevent the giving of an Advisory
• Opinion which the United Nations considers to be
course of action itshould5Opinion isCourt'to the
• gentittrequest it; the reply of the Court, itself an
• 'orgaof the UnitNationrepresenits
in principle, should not be refused" (at p. 71)iol1, and,
•
• 5 .8The fact that the legal question on which the Court's advisory opinion is
requested a1have a political dimension does not deprive the Court
• ofjurisdiction toanswer the itAs the Court said in iis
• Advisory OpinLegalityoftheThreatorUseofNuc/earWeapons(supra),
• as, in the naturÎsthe case50many0has political aspects,
• suffÎCe to dît of its chas a "legalnal1ife,
question" and" to deprive the Court of a competence
• political aspects,t cannot refuse to admit thetever its
• legal charof a queswhichinvites it to
assessrnthelegality of the possible conduct of
• States with regard to the obligations imposed upon
them by interna...nallaw
• nature of the motimay be said to havee political
• inspired therequest and the pthatical implkations
the establiof its jurita give such ano relevance in
• omitted.Repor1996, p. 234, para 13: citations
•
5.9 In takthat posithe Couwas followits previous well
• establipractThe Court has frequently been urged ta decline to give
• an advisory opinion whicput broadly, amount ta the matter
in issue being more political than50.gal. It has never done
•
••
• 40
• 5.1InConstilutiOrIOftheMaritime ICRepo1960 theeofIMCO,
Court said:
• "The Statements submitted to the Court have shawn
• of a political character. The Court as a judicial body is
• function, ta remain faitruul to the requirements of its
judicialactep153)t
• TheCourt proceeded to give the opinion which had been requested.
•
• 5.1faced with the argument thatthe question put ta the Courtwas intertwined
with political thafor that reason the Court should refuse ta
• gîve an opinion. The Court said:
• "I15true that mûst interpretations of the Charter of
• the United Nations will have political significanc€,
otherwÎse. The Court, however, carmot attribute anot be
• undertan essentiall y judicial task, name thes it to
• Interpretation of a treaty provision" (at p. 155)
• 5.1The determiof the Iegal consequences which fIow from a certain
Course of 1no less "an essentially judicial task".
• 5 .13Interpretation of 25Mar195betweenWHOand
• EgypICReportsJthe Court, on its own initiative raised the issue
• whether the request had been nothing but a political manoeuvre and
• should therefore be declined. After observîng that any such contention
Court continued that that jurisprudence established that:
•
•
••
41
• "if ... a quein a request is one that
• judicial process, the Court has not to deal with the
• lndeed, in situations in whîch political considerations
• internaorganita obtain an advisoryly necessary for an
• applicable with respect to the matter under debate ...."
• (at p. 87, para, 33)
5.11986, the Court said that it "has never srued away from a case broughtports
• before itmere1y because it had polîticaI implications or because it involved
• serîous elements of the use of force" (at p.435, para 96). That is as true
• today as1986.as in
• 5.15Iis equally irrelevant to the Court's jurisdiction that the subject-matter of
• the General Assembly or Security Counei!. When that question was raisedd by
• in Military and Paramilitary Activities in and against Nicaragua (Jurisdiction),
• ICJ Reports1984, the Court noted that it
aspects of a situation which has also been considered
• consonant with its position as the principal judiciaI
• organ of the United Nations" (at p. 436, para. 98).
• 5.16The Court similarly observed that,
• "the fact that a matter is before the Security Council
• and that both proceedinpariould be pursued the Court
• passu"(at p. 433, para. 93)
•
• • 42
• 5.1The Court had already come to the same conclusion in United States
• Diplomaticand ConsuTRepo1980,winoted that,
• HWhereArticothe Charter expressly forbids
• with regard to a dispute or situation while theons
1. of that dispute or situation, no such restriction isect
provision éther of the Charter or the Statute of the
• Court" (at pp. 21-2,para. 40)
• 5.1These were both contentious cases, and concerned concurrent action by the
• Court and SecurîtyCoul1cil: given the more lirnited legal effects ofadvisory
• by the Court and the General Assembl y În the present proceedings leadsn
afortiorita the same conclusion.
!• 5.1In short, in giving the advisory opinion which the General Assembly has
• requested of it, the Court is called upon ta "engage in its normal judidal
• function of ascertaining the existence or otherwise of legal principles and
• ofNuclear Weapons, Advp. 235,para. 18).upra,at or Use
•
• 5.2competent to request from the Court an advisory opinion on thatquestion.
The Court has jurisdiction to give such an opinion.
• (iiThere are no compelling reasons which shouid lead the Court to refuse to give the
• advisory opiniit requested of
• 5 .21 The Court has a measure of discretion whether or not to exercise its
• jurisdictione the advisory opinion it.ch has been requested of
•
••
• 43
Arti65paragraph 1, of the Statute states that the Court" may" give an
• advisory opinion, and the Court has made it clear that trus language
• "leaves the Court a discretion as to whether or not it
will give an advisory opinion that has been requested
• (Legality of the Threat or Use of Naclear Weapons,
• Advisory Opinion (supra), p. 235, para. 14)
• 5.22However, for over 50 years the Court has held ta the view that it should
noinprinciple refuse ta give an advisory opinion on a matter which has
• been properly placed before it. In Interpretation of Peace Trecitieswith
• Bulgaria,HUl1ganjandRomaICRepo195p.71the Court
said:
• "The Court' s Opinion is given not ta the States, but ta
• the Court, itseIf an 'organ of the United Nations',
• represents its pain the activities of the
refused."andin princishoulnotbe
•
• 5 .2More recently, in its Advisory thThreat or UseofhJof
statement,continued:par14the Court clted that earlier
•
• responsibaI/the principal judicial organ of the
• United Nations" (92)Whenconsidering
principle, refuse to give an advisory opinion. In
• Court, only" compelcould ittsuchurisprudence of the
• a refusaI... There has been no refusaI, based on the
request for advisory opinion in the history of the
• present Court..." (ibid., p. 235, para. 14)
•
••
• 44
5 .2Even the 5predecessorone occasion declined to respond to
• a questionifor an advisory opinion by theCouncîI of the League of
• Nations, anîtdi50for reasons other than the exercise of its
discretionarStatusafEasterPCI), Series B, No. 5 (1923).
• The circumstances, however, were special, particularly in thatthe question
• point of an existing bilateral dispute which had arisen between two States,
and that one of those two States was not a Member of the League of
• Nations, was tnot boubythe proviof the Covenant
• dealiwitthe pacifie settlement of disputes, and was, although in the
• possession of relevant facts, nevertheless not willing to pàrticipate in the
proceedings.
•
• 5.25concerned are members of the United Nations and have thereforeaccepted
the possibility of the Court responding to a request for an advisory opinion
• submitted inaccordance with the relevant provisions of the Charter and the
• Statute. There are Inecessary for the Court to have before
it in giving its advisory opinion, but which are inaccessible ta the Court by
• reason of the State in possession of those facts being a non-Member of the
• United Nations and unwilling to participate in the proceeqîngs. While the
question put ta the Court in the aparticular set relates ta
• of circumstances (namely the construction of the wall being built by Israel),
• actually pbetween States but rather relatof ta the obtaining
guidabythe General Aatothe consequences wmchflow
• from the constructi50that the General Assembly may with
• afuller underof thoselegal consequences be better placed to carry
Qut its funetionthopinion will baddressetheo
• Assembly for its guidance but will also only be advîsory, will the giving of
• the opinion effectively decide any existing bilateral dispute behveenStates.
•• 45
• Ibeing the Assembly, not States, which has sought the Court/s advisory
• opinion, the opinion when given wîin serve to assÎst the Assembly
• the usefulness of the opinion in the light of its own needs.
•
• 5 .opinion isthave been requested upon alegal questionactually the advisory
• pending between two or more States, it does not follow that the Court
should decline to giveInterpretationofPeaceTreaties
• acknowIedged that the inability of any State to prevent the giving of an
• advîsory opinion appHed,
• 1Evenwhere the Request for an opinion relates to a
• quoted above, at paragraph 5.7:emphasis added).p.71,
• 5.2Relying on thatcase, theCourr,. in the Western Saharacase, IC] Reports 1975,
• rejected Spain's contention that it should not give an advisory opinion
• because it would be an opinion on what in effect was the subject of a
proceedings. The Court continued:States, and Spain did not consent to the
• "The Court, it is true, affirmed [in that case] ... that its
• consent of the interested States, even when the case
• them. However, the Court proceeded not merely taeen
• of Article 65, paragraph 1, of the Statute but tonature
• sorne of the interested States, the question of the of
• Court emphthe circumstances differentîatingoreover, the
Eastern Carelia casthe particulard
•
••
• 46
• reason ta refuse to reply to the request. Thus the
• a ground for decIining to give the opinion requestede
of judiciaI propriety should oblige the Court ta refuses
• continto be relenet for the Court'sf an interested State
• of giving an opinion ....ppreciation of the propriety
• "33In certaÎn circumstances, therefore, the lack of
of an advisory opinion inco5patible with the Court'g
• the circumstances disclose that to give a reply would
• State is obliged to allowto bedisputesrinciple that a
• submitted to judîcîaI settlement without its consent.. ..
• however, the one envisaged above. There is in this
case a legal controversy, but one which arose during
• relation to matters with Ididh it was dealing.
• 24-para32, 33, 34)ently in bilateral relations ..." (at pp.
• 5.28After reviewing the cîrcumstances in which the Iegal question put by the
Generalsembly to the Court had arisen, the Court continued:
•
• seised are located in a broader frame of reference than
• other elements. These elernents, moreover, are not
• present and the future.t are also directed ta the
"39The above considerations are pertinent for a
• object of the General Assembly has not been ta bringhe
• opinion, a dispute or legal conh'oversy, in order that
• it may later, on the b5opinion,he Courf
• -------------
•
47
• exercise its powers and functions for the peaceful
• of the ian entirely different one: to obtaine object
• exercise ofitsfunctions concerning the decolonization
• of the territory" (at pp. 26-27,paras. 38 and 39).
• 5.29he similarities between the situation befare the Court in that case; and the
• legal controversy arose during proceedings of the General Assembly and, the
• in relation to matters with which it was dealing; it did not arise
• independently in bl1ateral relations; the legal questions of which the Court
• are ratheinthe broader frame of reference of the Generalarticular dispute, but
Assembly's invoIvement, from the earliest days of the United Nations, in
• and in particular the consequences ofthe 1967hostilities between Israel and
• certain Arab States; the Assemblyins not seeking an advisory opinion
• peaceful settlement of a bilateral dispute; rather itseeks the Court' sopinion
• in order ta ithepropexercof its funchons
• Westem Saharacase that nothîng in the giving by the Court of a reply to the
• General Assembly' s request for an advisory opinion would have the effect
• disputes to be submitted to judicial settlement without its consent, and
• would not therefore involve any judicial impropriety on the part of the
• Court, so tao is the saffie conclusion called for in the present case.
•
•
••
• 48
• 5 .30SUlas pbyRosenne,
"wing to the orgaruc relation now existing between
• itself as being under the dut Yof participating, within
• and no Statthparticipation" (TheLawandhe Organizatiol1,
• (1997),at p. 1021).rnational Court of Justice 1920-1996,
• 5 .31 As already noted, the lact that the legal question on which the Court's
• opinion isreqa15învolvea political questionaffords,no reason
• paragraphs 5.8 - 5.14). No doubt, as the Court made clear in its Advisory
OpinionLegality of the Threat or Usp. 237,clear Weapons (supra,
• para 17), whatever conclusions are reached by the Court in the opinion
• which it gives in response to the General Assembly's request, those
• specifie matters wruchithabuaIso to the continuingbly's disposition of the
debate in the United Nations on matters of wider împort in relation ta the
• search foithe Middle East. But any suc5 effects which the Courf
• opinion might have are a matter of appreciation as ta which there are
• doubtless differing views; in any event they can be no more than a matter
Court' s opinion cannat constitute a compeIling reason for the Court tof the
decline to exercise its jurisdiction.
•
• 5 .3which States have different legal views does not mean that the Court is on
• thereforecalled upon to consider alegal question actually pending between
StatIwill, indeed, usually be the case that a request for an advisory
• opinion relates to a legaI issue on inoth divergent views exÎst -were
• 50there would be no need for the reque5ting organ to seek the Court'
• •
'. 49
opinion on the matter. It is precisely because there are divergent legal
• views that the General Assembly has in trus case considered that it stands
• in need of an advisory COUTas ta the legal consequences
with regard ta matters currently befoTe the Assembly.
•
• 5.33Its the General Assembl y, and not for the Court, ta determine whether
Assernbly, rather than the Court, sought; it is for the
•
• "to decide for itselfon the usefulness of an opinion in
determînwhetherthere are any compellingr] the Court, in
• reasons for it to refuse to gwillsuch an opinion,
history of thet, or to the distinbution of votesal
• Threat or Use of Nuclearp. 237, para.ra,
• 16).
•
5.34Moreover, the fact that the legal question posed by the General Assembly
• declining to exercise togive the opinion which has beenies the Court in
• requested (see above, paragraphs 5.8 - 5.14).
• 5.35There Îshort, no "compel1ing reason" for the Court to decline to
• exercisethejurwhîch theChand Statute haveuponerred
ÎThe Court's "tensure respect for inteof which itw,
• is the or(Corfu Channelle)Repor1949, p. 35): tha! task
apphes to advisory proceedîngs as much as ta contentious proceedings.
The nature of the Court's judîcîaI task has been
"summarizas being sa far as intheble
• legaI problem from its broader poIitical context to the
consider that legal problem in an objective and Even
abstract way, and to artîculate the decision on the•
50
• basis of that examination; to the exclusion of aIl extra
• the judicial task has met with general acceptance inf
• of advisory opinions) and the individual States (in the
• TheLawand PracticeoCOlofJusticeational." (Rosenne,
.. 1920-](1997),p.178)
5.36In exercising its jurisdiction in the present proceedings the Court will wish
.. ta note in particular certain elements which are expressed in, or flow from,
the terms of the question put ta the Court for an advisory opinîon:
• (i)the request seeks an advisory opinion on "the legal consequences
• consequwithoany limias ta the States, entities, thus
• organisations or persons for which those consequences arise;
(H)the General Assembly categorises Israel as "the occupying Power";
•
• (Hibeing constructed as "the OccupiandPalestinian Territory"he waIl is
• regards that Territory as "including in and around East Jerusalem";
• (iv)the question relates tbIsrael ...as described
• in the report of the 1and sinee that report
describes the wall in its entirety - i.e. as constructed, planned and
• question put before the Court by the General Assembly;
•
• (v) 1949 wühin the rules and priwhich thef internationallawion of
• Court Îsto consider in responding to the question placed before it;
• and
••
• 51
• (vi)the General Assembly regards "relevant Security and General
responding to the question placed before it.dered
•
• (b)Applicalega! principles
• (i)Theprohibthuseofforce,and therightof selfdetermination/ aremIes of
iuscogens
•
• 5 .advisory opinion areby two Iules of law ofational present request for an
• overrîdîngimpOltance and significance. They are the Iules wruch establish
that the use of force by States iBprohibited (save in very exceptional and
• tightly reshicted circumstances), and that aIl peopIes have the Iight to self
• importance that they have thius cogens. of rules ofl
•
5.3That catorules of interrepresents the highest level in
• varied or departed from by other but only byternationallaw
• othTUlhaving thiuscogcharacter. The lisual formulation of
• this category of rules of Îthat adopted by Article
53 of the Vienna Convention on the Law of Treaties 1969, which uses the
• term ius cogensas coterminous wnOTIDgeneral "peremptory
• intemationaandefinesteras;
• conununity ofStatasnorm from whichrnational
nOderogation ispermitted and which can be rnodified
• law having the same charactee'.eral international
•
•
••
52
• 5.3While the existence of such a cateis nowf rules of internationallaw
• universally accepted, the identification of the Tules faIIing within that
• cateÎthe subject ofmore dispute. Nevertheless, there isnowadays no
• ta armed force and the rias ruius cogens.rminationh the prohibition of resort
..
circumstances) of the use of force by States is a well-estabHshed rule of
• internatiIis one of the Principles of the United Nations, set out
• in Article 2(4) of the Charter in the following terms:
• "AU Members sha11 refrain in their international
• territorial integrity oof anytical independencest the
Purposes of the United Nations."consÎstent with the
• 5 ADThat Charter prohibition appHes not anly ta the threat or use of force, but
• also the threat or use of inconsistent with theanner
• Purpases of the United Nations. the threat or use of force in either of those
• principles of necessity and prop0l'tionality: see further below, paragraphthe
• 5.272), would be unlawful under the law of the Charter: LegalityofNuclear
• Weapons,ICl Reports1996, at p. 247, para 48.
5.41The Purpases of the UniinArticle 1 of the Charter.
• They iniparticular,
• • the maintenance of international peace and security, to which end
• iis a purpose of the United Nations "to bring about by peaceful
• internat1adfustment or settlement of international dlsputes
or situations which might lead to a breach ofthe peace" (Article 1.1);
•
•..
53
• • /ldevelop friendly relations arnong nations based on respect for
• the princîple of equaJ righof peoples"-determination
• (Article 1.2); and
• • "to achinternaco-operatInpromotand
• freedoms for aH without distinction as to race, sex, language, or
• religion" .
5.4The prohibition of the use of force îsalso a rule of customary international
• law.
• 5.4Ihas long been acknowledged that the Iule prohibiting the use of force is
• a Iule having the character o(1) of its theIn paragraph
• of treaties (which was later, with amendments, to become Article 53 of the
• Vienna Convention)rnational Law Commission
• "poînted out that the law of the Charter concerning
ta conspicuous example of a Iule in internationallawtutes
• having the cjus cogens".
• 5.4This statement was quoted with appandal by the Court in Military
• (para. 190), and the Court noted that bath parties before the Court
• (Nicaragua and the United States of America) accepted the starus of the
• prohibition of tius c(at p. 101, para. 190).
• 5 .45 There is no disposition in any quarter to doubt that the prohibition of the
• use of force cogens.le of ius
•
• •
• 54
.. (b) Acceptance of the Tight ofas having the status of a
Tulef ius cogenshas been a more recent development. The International
• Law Commissiinits 1966 Commeninparagra(3) of its
Corrunentarydraft Article 50 of its final draft articles on the Iaw of
• treatnoted that the principle of sebeenmentjonedionhad
• as a possible exampllUcogens.le of
5.46As early audge Amoun, in his sepinBarcelanaTraction
• (Secondase),IC] Reports1970,treated the rasanofself-determination
• "imperative Tuleof inte(at p. 304, para. Il) - a ferm which
• would now be rendered ius cogens.
5.47In 1995]udgeCassese, Presîdent of the International Criminal Tribunal for
• the Former Yugoslavia, considered the status of self-determination as part
• of ius cInSelf-Determinationof Peoples:(199helReappraisal
carefully examined the 134-14and in the light of that
• exarninatconsidethat "the concIls justthat self
• deterrnination constitutes a peremptory n(ibid.,internationallaw"
at p. 140).
• 5 .4His conclusion wasithe same year when the Court itself noted
• that "ltJhe principle ofself-determination ofpeoples ...is one of the essential
principofscontemporainternatilaw"andaccepteas
• "irreproachthe view that opeoples ta self-deterrninatian
• hadanerga ocharacter, with the consequence that it gave rise to an
obligation to the international cornrnunity asa whole to respect itsexercise:
• EastTimor,ICJ Reports1995, at p. 102, para. 29.
• 5.49Inrelianceon this view the International Law Commission, inits discussion
, of norms having the character of ius c(5) of thearagraph
'1. Cammentarto Article 40 of its 2001 Articles on State ResponsibiJjty,
••
• 55
• deserves to be mentioned".ion ta respect the rîght of self-determination
•
5.5right of self-to be exer'peoleuestion beingapable obligation to allow the
• the Palestinians.
•
• (iioccupiedterrîtoryfor purposesofinternationallawes
•
5.5TBank and parts of JerusaJem which were occupied by Israel after the 1967
• conflict. The background to that conflict is therefore relevant ta Israel's
• present rights and obligations in and in respect of the West Bank and East
• Jerusalem. That background isection II. out abov€,
• 5.52It is evident from that background that belore June 1967 the West Bank
cleawas territory in which Israel had any presence or which was
• asovereignty. Contrariwis€, the West Bank clearly was territory in which
• Jordan was peacefuwhich was administered and controlled
• by Jordan, and indeed was (and had been for 17 yeaTS)territory in respect
• subject to safeguards for Palestinian rights in the final settlement of the
Palestinian question. Jordan's position in respect of the West Bank was
• generally acknowledged by the international community, and as already
• of the United Nations in 1955 wÎthout objection from any State and was
• accepted by the Security Council in Resolution 228 (1966).
•
• 5.53a direct part of the 1a milîtary occupation of thatWest Bank after and as
••
• 56
non-lsraeli territorbyarmed force dispossesses another
• State from its peaceful exerauthority over territory
• and repliwith its Own aithereby becornes the military
occupant of that terrÎtory. The essence of mihtary occupation îs that it
• oceurs wherebyforce of arms extends the itsritorial scope of
• authorinto territory whOWlTypically, such a situation
the expense ofanotherState' ssovereignty overthe territory whichhas beence at
• militaoccupied, but this i5 not a necessary condition for the
• establishment of the international regime of military occupation. The Iaw
of rnîlitary occupation opera tes with considerable flexibility in the range of
• situations which it covers, and is not limited ta what may be regarded as
• the classofbelligerent occupation by one State of the territory of
• another with which it is at war. lts operation is essentially determÎned by
thfacwhere the facts show that aiter hostilities aState' s military forces
• are in occupation of territory not its own, then that occupation constitutes
a "nrilitary occupation" for the purposes of international1aw.
5 .5This is consistent with 1an2of the (Fourth) Geneva
• Conventrelative to the Protection of Civilian Persons in Time of War
• 1949 UNTSp. 287). Article 1 provides that:
"The High Contracting Pato respectrtake
• and to ensure respect for tinaUresent Convention
• circumstances" (emphasis added)
5.55The tirst two of Art2provide:
•
• implemenin peacetime, the present Conventions
• shaH apply ta all cases of declared war orof any other
of the High CoParties,ifthe state ofen MO or more
• waisnot recobyone of them.
•• 57
• partial or total occupation of the territory of a High
• with no armed resistance." the said occupation rneets
•
• 556Bank for at least two reasons. First, itapphes ta any armed conflict between
• two or more ofthe High Contracting Parties: at the time the 1967hostilities
• armed conflîct was without question one which had arisen between thernhe
• (and other States). addit("a1so") applies to
• Party, and, for the reasons given above in Section V(b) (ii),the West Bankcting
• comprises territory under its sovereignty (even though without prejudice
• to certain rights of others) or on the basis that "of" connotes at least a
• governmentaI authority over, territory. In short, the Convention appHes to
• a11cases În which territory Îs occupied in the course of an armed conflict,
• irrespective of the status of that territory.
• 5.5The emphasis on the factual situation as the basis for the Convention' s
• applicjreinforced by Artide 4, which provides that
at a given moment and in any manner whatsoever,who,
• fPower of which they are not nationals." Occupying
•
• 5.5occupied territories as a result of the June 1967 hostilities. Nothing has
• happened sinee then ta change that state of affalTs.
•
••
• 58
• 5.5Many Securîty Council and General Assembly resolutions confinn that
aftermath of the 1967 hostilities resolutions of both organs of the United
• Nations have characterised the resulting situation both as one of
• "occupation", and as one to whîch the Fourth Geneva Convention appIied,
• and have designated Israel as the" occupying Power".
5 .ln the immediate aftermath ofthe 1967hostilities SCRes.237(1967) (14lune
• 1967: adopted unrecommend"scrupurespect of the
• humanitarian principles governing the in. protection of civilîan persons
• time of war ithe Geneva Conventions of 12 August 1949)),and
2252 (ES-Vy1967). In 1969 the Security Council became more in GA Res.
• specifiiSCRes.271(1969)(15September1969: adopted 11-0-4)caIled
• upon Israel "scrto observe the provisions of the Geneva
• Conventions and intgoverning rnilitary occupation". This
express general reference to the Geneva Conventions in the context of
• 1976by the President ofthe Security Council that "The Geneva Convention
• relative to the Protection of Civilian Persons in Time of War, of 12 August
• 1949,isapplîcabltetories occupied by Israel sinee 1967"(UN
Doc. S/PV.1922, 26 May 1976). ThiinSC Res.e was followed
• onceore that the Geneva Convention relative to the Protection ofCivilian
• Persoin Tiof War, of 12 August 1949, îs applicable to the Arab
• territories occupied by Israel since 1967,(prearnble,
para 3) and in other operative provisions repeated the applicability of the
• aIoccupied" (paras 1,3, 4),the occupying Power" ase territories
• (para 3).These points have been consistently repeated in many subsequent
• resolutions adopted, with large majorities, by the Security Council: see e.g.
••
59
• SC Res 681(1990)(20 December 1990: adopted unanimously) and SC Res.
• 726(1992)(18 December 1992:mously).
• 5.61n the General Assembly the viewof the by the generality
• membership has been even more speulyie. Alter GA Res. 2252(ES-V)(4
• for "scrupulous respect of the humanitarian principles governing the ...
• protection of civilian persons in time of war contained in the Geneva
Conventions of12August 1949";subsequent resolutions soon adopted even
• adopted 52-20-43)calIed upon Israel "to comply with its obligations under
• the Geneva Convention relative ta the Protection of Civilian Persans in
• Assembly resolutions have consistently upheld the applicability of the
• Fourth Geneva Cheld the occupieterritorynian
• incIuiand around East Jerusaterritory, andupied
• adopted by overwhelming majorities, indeed sometimes with no negative
• vote, with no more than othof Israel. Such
of the General Assembly's position in over a long perîod: GA Res.econsistency
• 3092A(XXVIII) (7December 1973: adopted 120-0-5), GA Res. 3240B(XXIX)
• adopted 131-1-7),(1December 1980: adopted 141-1-1),28 October 1977:
• GA Res.79B (15 December 1983: adopted 146-1-1), GA Res. 41(63B (3
• December 1986: adopted 145-1-6), GA Res. 43(58B (6 December 1988:
• Res.49/36B (9December 1994:adopted 155-3-5),GA Res. ES-10/2(25 April
• 1997: adopted 134-3-11), and GA Res. 56(60 (10December 2001: adopted
148-4-2).
•
••
• 60
• 5.621977)d 33/29 (7 December 1978) specifically characterized the Israeli
• occupation of territories occupied sinee the 1967hostilities as "illegaI". The
formersolunon econce"that the Arab territories occupied
• sinee 1967 have continued, for more than ten years, ta be under illegal
• replacement o"eleveThose resolutions were adopted by
• huge majorities, the former by 102-4-29and the latter by 100-4-33.
• 5 .6situativiolation of intand has thus itosideredtermined or
• be illegal, or where the General Assembly' s consistent conduct over many
• yeaTsreflects an opiniojuris ta that effect, the Court cannat disregard such
• legal conclusions. inLegalConsequencesfor Statesof the
1971),ed Presenceof South Africa ICReportsa (South West Africa),
•
• that, once such a declaration [that a certain situation
• under Article 24 of the Charter, on behalf of aIll
disreof such illegality or even to recognizeo act in
• with such an interunJawful situation,When confronted
• act in consequence with the dec1aration made on their
• behalf." (at p. 52, para. 112)
• 5 .64 In addition to the overwhelming and consistent practice of the relevant
organs of the United Nationsorganizahavesnational
• sirnilarly held the view that the Fourth Geneva Convention applies to the
• occupied Palestinian territories inc1uding in and around East Jerusalem.
• This has, for example, consistently been the view of the International
••
• 61
• subsequent years, and its statement on the twentieth armiversary of the
• occupa(ICRC BNo. 137, June 1987, p. 1)
5 .65 Quite apart from their conduct iintheing on relevant resolutions
• Security Council and General Assembly, many States have takenindividual
• positions to the effect that the Fourth Geneva Convention apphes to the
• in Interna197p1575-1578)and the United Kingdom("United(Digestof
• Kingdom Materials in in British Yearbookoflntemational
Law, (1p.592-600).
• 5.66Israel has on various grounds sought to deny that its presence in the
• occupied Palestinian territories including in and around East Jerusalem
• constitutes a rnilitaryo which the special legal regime of
• Convention (to wruch Israel is a party) applies as a matter of law to that
occupation. Israel's arguments to that effect have been explained at length
• in debates in the Security Council and General Assembly. In particular, in
• to the adof SC Resolution 446(1979)(22 March 1979), Israel'sually
• representative, Mr Blum, deIivered a lengthy statement of Israel's position
• (UN Doc. S/pp17-51).The Security Council decisively rejected
• which (as noted above) the Council affirmed the applicability ofthe Fourth
Geneva Convention (preamblethat the policy anded
• practices of Israel in establishing settlements in the Palestinian and other
• Arab territories occupied since 1967 "have no legaI validity" (operative
• 7) and characterized Israel as "the occupying Power" (operative para 3):nd para
•
•- - - ~ - - - - -
•
• 62
• abstentions.ion was adifavour, 0 agaînst, and with 3
1·
(iiiTheZawapplicablein respelimthoccupyingState's
• powers
• 5.6Territory occupied during or in the aftermath of hostilities -"occupied
• territory" - is insubject to a regime. That
temporary and provisionalstate ofaffairs, which may change as the tide of
• Wal flows back and forth, oi may come to an end with new arrangements
• agreed by theparties at or aftel' the end of active hostîlîtîes.
• MiIitary occupation isnot the result ofalegally authorized process: itis the
force which confers on the ocfaccontrol anda degree of deation of superior
• jurisdiction without constîtuting a transfer of sovereignty, and the factuai
• situation resulting from that extra-Iegal origin is then regulated by rules of
• internationallaw.
• 5.68Aimportant as the prohibition of the annexation of occupied territory is
the requithat the special legal regime which governs territory
• occupation iiself contohostilities dthe not make subsistsfor sa long as the
• accupatîonolonger applicable. Occupation isessentiall y a matter
• ofact; for so long as theexis50too does then
• application to the occupation of the international Iegal regime govern.îng
withdrof the occupying State's authorities or by whatever formaIcomplete
• processes may accompany the eventual return to 'peace'. In relation ta the
• occupied Palestinian terrÎtories induding in and around Jerusalem, many
•
••
63
• resolutions of the Securîty Council and General Assembly affirm the
• continued application of the occupation regime.
• 5.69The speciallegal reTuof internwhichallawe
• amilitary needs of the occupying State's forces and the rîghts of the
• popultcont5far as possible their peaceful and distinctive way
• international Iaw defining the applicable regime are to be found in -lesof
•
• (a) the Charter of the United Nations;
• (b)e Regulationsarmexed to theff907 Hague Convention Respecting the
accepted as embodying customary international Iaw;ations
• (c) the Fourth Geneva Convention 1949, to which almost aIl States are now
• Parties (the total is now 191, and indudes Jordan, and Israel) and which
• accordingly may be regarded as wholly or at least in substantial part
• declaratory of customary internationallaw;
• 1949, and Relating to the Protection of Victims of International Armedt
• Conflicts, whlch now has --States Parties (incIudingJordan); it requires the
• (Article 1.1), and applies in the situations referred to in Article 2 common"
• to the 1949 Geneva Conventions (Article 2.2) and to "arme.d conflicts in
• régimes in the exercise of t(Article 1.4):self-determinationagainst racist
sorne of the provisions of Protocoi 1 are now recognised ta have the
• character of customary internationallaw;
•
••
• 64
• of the previously mentioned instruments may a150possess, in addition ta
• their quality as treaty Iules binquestion);rties ta the treaty
• (which the question on which an advisory opinion is requested expressly
• requîres ttconsider).
•
of international treaties which, while not necessarily to be regarded as
• setting the framework of the taterrîtory underplicable
• Foreign military occupation, nevertheless apply in thatsituation as weIl as
• in other si(for which they might have been more
• specifically designed). These indude in particular-
(i)Universal Declaration of Human Rights 1948;
• (IiInternational Covenant on Civil and Political Rights 1966;
• (iiRights 1966 (these two Covenants were a development of the
• Human Rights 1948 (GA Res. 217A(III)(1948), the terms andn of
the Geneva Conventiinthe following year).s of
•
• 5.7In considering the customaryprovisions wruch theal
• placed bithe Court lScalled upon ta state and apply the law, iny has
• doing which "the Court necessarily has ta specify its scope and sometimes
note its geneLegality of the Threat or Use of Nuclear Weapol1s;
• Advisory O(supp. 237, para. 18).
• 5 .71 As regards the rulelaw applicable by virtue of sub
• paragra(b(cand (d) above, itta recall that (with
••
65
•
• reference to the Mandates systby the Coveof the
League of Natîons) the Court has drawn attention to the need to interpret
• institutandinstrumenin thlighof generinternational
developments. The Court said:
• "[V]iewing the institutions of 1919, the Court must
• take into considthe changwhichhave
interpretacannoremaiunaffectby thes
• subsequent development of law,.through the Charter
• Moreovean internatiinstrumhas to belaw.
interpreted and applied within the framework of the
• interpreta(Legal Consequences ftheStates of
Continued Presenceof South Africa in Namibia (South
• West AfrimRepor1971, pp. 31-32, para. 53)
•
5.72This is particularly important in respect of the Hague Regulations, which
• were adopalmosa centagoand even the Geneva Conventions
were adopnearly half a century ago, and Proof al l a quarter
• century ago.
• 5.73As regards what the Couthe "Hague and the "Geneva
Law", the CourtLegality ofNuclear Weapons,!e) Reports 1996):
•
• "These two branches of the law applicable in armed
are considto have graduallone singlethat they
• complesystemknown todaas international
Protocol1977give expreand attest to theitionaI
• unit Yand complexity of that law" (at p. 256;para. 75).
•
e 5.74The Court aIsattentitheprovisions of paragra2,..
of Additiona! Protocol! of 1977 which, building upon the earlier so-caIIed
MarteClausreadasfollows:
•
••
• 66
• internatagreemecivilians and combatants
remain under the protection and authority of the
• established custOffi,from the principles of humanity
• para. 78).he dicta tes of public conscience" (at p. 257,
• 5.7The Court later conUcontinuing existence and applicability
• [of the Martens Clause] is not to be doubted ..." (at p. 260, para. 87).
• 5.7The Court went on ta observe that
• armed conf5fundamental to the respect ofthe
• humanity' ...thatthe Hague and Geneva Conventions
• fundamental rules are to be observed by a11States
contain them, because they constituteintransgressiblet
• principles of international customary law" (at p. 257,
• para. 79).
5.7The Court referred to the finding of the Nuremberg International MiIitary
• Tribunal in 1945 that the Hague Regulations "were recognized by aU
• civilized nations and were regarded as being declaratory of the laws and
• General in1993which was unanimously approved by the Security Counciletary
in resolution 827(1993)and wruchincluded witrun that part ofconventional
• internationalutarian law which has "beyond doubt become part of
• internatcustomary law" the law applicable În armed conflÎct as
• embodied in, interalia,the Geneva Conventions of 1949 for the Protection
of War Victims and the Hague Regulations (at p. 258, para. 81).
• 5.7The CourconcIuby notithat the extcodification of
• humanitarian law has
• •
67
• Uprovided the internacorpus corrununitywitha
• beeome eustamary and which reflected the mastd already
• rules indicate the normal conduct and behaviour These
• expeeted of States." (at p. 258,para. 82).
• 5.7Since the Cothose conclusions, the trends in the development
• been confîrmed and extended further by subsequent developments, mostve
notabl y in the Articles on State Responsibility which were taken note of
• Res. 56/ithe Rome Statute of the International Criminal CourtGA
1· adopted by the Rome Conference in 1998. There lS moreover growÎng
• authority for the vinvolves VIolation ofa rule ofius
• benefits which might otherwise accrue to the violating State will bes and
• curtailed and, at the least, subject to restrictive interpretation. SeeBrownlie,
• Oppenheim'slntemational Law (VoL!, 9"'ed., 1992),p. 8., p. 490, at n. 37);
•
5.8intended to apply to aIl situations covered by the instruments in questions,
• irrespective of potential legal technicalities which might otherwise be
• invoked to Emit the protection afforded by those instruments. Thus if there
• occupation in the course of or following fighting or conflict, the clear
• intention of the relevant instruments is that the victims of that fighting
• about the status of the territory in question prior to the occupation, or the
• status of parties to the conflict, or the legal nature of the "war" which was
taking place, or of its lawfacsituationtherwise: it is the
•
••
• 68
• common Articles of the 1949Geneva Conventions aIl provide that respect
• for each Convention is to be ensured "in all circumstances" (Article 1),and
that they apply "to allor any other armed conflict ...,
• eveithe state of war isbone of them" (Artide 2:
• or part of the occupied territory (which it is not perrnitted to do: see below,
• paragraph 5.98FF), "Protected persons who are in occupied territory shaH
not be deprived, in any case or În any malmer whatsoever, of the benefits
• of the prConventby" such anne(FourGeneva
• Convention, Article 47).
• 5.81Sofar asconcerns the Covenant on Civil and PoliticalRights, that Covenant
• and subject to it(Arti2.TheUNoRumaRightsthin leach State Party'sl territory
Committee, and the UN Committee on Economie, Social and Cultural
• Rights, have disregarded questions of territorial sovereignty as prerequIsite
• for compliance with, respectively, the Covenants on Civil and Political
• 2003the Human Rights Committee rejeebyd the arguments put fOTW'ardly
Israel to the effect that Israel'sactions in the occupied Palestinian terri tories
• were not to be measured agaînst the rules set out in the International
• Covenant on Civil and Political Rights (Report of the Special Rapporteur
• EjCN.4j20para. 2).n Rights, 82003, UN Doc.
•
5.82In Nuclear WAdvisory Opinion the Court has stated "that the
• not cease in timbyoperation of Article 4 of the Covenantlitical Rights does
• whereby certain provisions may be derogated from in a Ume of national
• emergency" (para. 25). Such derogations cannot, however, be made ta a
••
69
• number of Articles, as specified in Article 4.2. There lSof course a separate
• question whether any particular I1ght protected by the Covenant is
• appropriate places in this statement. Israel ratified the Covenant on 3 the
• January 1992, without making any reservation relevant to the present
• request.
• 5.8comprisingspecial regîme of mîlîtary occupation seeks to establish aules
• balance between the military needs of the occupying State În prosecuting
• its hostilities against the enemy and the continuing rights of the local
• interpreting and applying those Iules the generallevel of active hostilities
existing at the relevant time is a factor to be taken into account. The more
• daims by an occupying State that it must be allowed to do certain thingsto
• infurtherance ofits military needs; on the other hand, when (as now, in the
• generallevel of hostilities has virtually diminished to vanishing point, the
• military needs of the occupyreduced andre correspondingly
• and the local population has a correspondingI y greater daim that its rightsy,
• not be interferedinthose circumstances there is a
• Geneva Convention (whlch was primarily designed to protect the civilianth
• population during an essentially 'hostile' military occupation) with the
• provisionsneral human which serve to protect
incIuding those when circumstances approxima te to those of peace.
•
•
••
• 5.84In consithe body of applicable Iules, sorne generalobservations
• must be made about the relevant Security Council and General Assembly
• resolutions, which, as already noted (above, paragraph 5.36), the General
Assembl request for an advisory opinion expressly requires the Court
• to consider.
• 5.85First, sorne at least of those resolutions, particularly sorne of those adopted
• Nations by virtue of Article 25 of the Charter. In thîs connexion, the Court
• has already rejected the view that Article 25 of the Charter appHes orny ta
enforcement measures adopted under Chapter VIIof the Charter, painting
• out that that Article applies without qualification to "the decisions of the
• not in Chapter VIIbut in that part ofthe Charter dealing generally with the
• powers and funetions of the Seeurity Couneil (LegalConsequencesfor States
• of the Continued Presence of South ICJica in Namibia (South West Africa),
• have bînding effect, the Court went on to say:ty Council resolutions do
• should be carefully analysed before a conclusion canl
• of the powers under Article 25, the question whetherure
• eaecase, regard to ttheresolutIon in
• Chartprovisinvokand, in geanral,g to it, the
legal consequences of the resolution of the Security
• Council." (para. 114)
• 5.86In applying that test tjin those proceedings, the
• Court concluded that they
•
• •
• 71
• principles of thiaccordance with its purposes and
• binding on aIlStates Mernbers of the United Nations,
thus when the Security Cauneil adopts a decision
• for mernber States ta comply with that decision,,
• iwhich voted against it and those Members of the
• ... A binding dmadebya competentrs of the Council
organ of the United Nations ta the effect that a
• consequence. Once the Court ls faced with snch a
• judicial functionid not dedare that there is an of its
• oNations, to bring that(paras. 115-oanend."nited
• 17)
5.87In the context of these present lof the vîewceedings, Jordan
• that binding determinations of the Security Council under Article 25 of the
• Charter, have determined that
• (î) the territory in which the walI is being constructed by Israel is
"occupied territory", in relation to whieh Israel i5 the "occupying
1. Power",
(iithe Fourth Geneva Convention appHes to that occupied territory,
• (îüIsrael's conduet in that occupied territory is in violation of its
• obligations under that Convention and applicable principles and
ruIes of internparticularly in so far as it relates to the
• establi5runent in that occupîed terintory of settlements which it i5
• encourage and defend, anding byIsrael to
•
••
• (ivactions taken by Israel to change the status and demographlc
• composition of thatoccupied territory have no legal validîty and are
• null and void.
5.88Iis morerelevant that when the Security Council debated the
• situation created by the construction of the waIl at its 484r' and 4842"
• meetings on 14 Oihad before ît a draft resolution which
• occupying Power, of a wall in the Occupied Territories departing from the
• armistice line of 1949 is illegal under relevant provisions of international
law and must be ceased and reversed". That draft resolution failed ta be
• adopted because of the negative vote of one permanent member of the
• large majorÎty of members of the Council supported it; moreover it îs well
• estabHshed that the failure of a resolution io be adopted does not imply
• that the organ in question had in the senseuncement
Presence of South Africa inICRepo1971, ath West Africa),inued
• para. 59).faiof the Security Council ta agree upon that ciraft
• resolution on 14 October 2003 which led ta the request, the following day,
• Assembly whîch, after meet2003 and again on 8cial Session of the General
• December,ted the Resolution by w5advisoryught the Court'
• opinion. See Dossier of MPursuto Article 65,
200at pp. 4-5, paras. 5-7.e of the International Court of Justice, 19January
•
• 5 .8Second, even where a resolution is not formally binding by virtue of sorne
• binding characteristics byvirtue of the voting pattern of its adoption, or the
• fact iis part of a consistent series of resolutions: either of those
• •
73
•
• circumstanand especially where bath operatmay bether,
evidence of an opinio jUTis with respect to the rule reflected in the
• resolution.
5.90The possibilithatGeneraAssemblyresolutiomay make
• determinations or haveoperative design was accepted by the Court in Legal
• Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa),71, where the Court explained that
•
• "iwould not be correct ta assume that, because the
recommendatopowersitî1$ debarrfrom
• adopting, Înspecifie cases witrun the framework ofits
or have operative design" (at p. 50, para. 105)ns
•
• 5.91The legal weight ta be ta General Assernbly reis;utions
however, more extensive than even that staternent suggests. As the Court
• said in its advisoryon Legality of the Threat or Use of Nuclear
Weapons:
•
• "The Court notes that General Assembly resoIutions,
normative value. They can, În certain circumstances,
providevidenimportanfor establitheng
To establish whether this is true of a given General
AssembIy resoIit is necessary to look at its
necessary to see whetjuriexiastoitso;
normative character. Or a series of resolutions may
• for the establislunent ofReports 1996, (IC)
• p. 226, at pp. 254-255, para. 70)
,.
, 5.92TheCourt went to note that anumeronGeneraAssembly
resolutions put before the Court in those proceedings declared that the use
•
••
• nuclear weapons would be contrary to the Charter, "severaI of the
• resolutions underthe present case have beenadopted with
• substantial numbers ofnegative votes and abstentions" and that as a result
"they still faHshort of estaopinioon the existence fo an
• the context of the present advisory proceedings Jordan draws attention ta, in
• the overwhelming and often virtually unopposed majoritîes by which
• relevant resolutions were adopted.
• 5.93The views expressedMilitary and Paramilitary Activities in
and against Nicaraguare tsimilar effect. Ther€ the
• Court considered the extent ta which the rule prohibiting recourse ta force
• whether there was an opiniojurîs to that effect. The Court said:
•
• deduced interthe attitude of the Parties and be
• Assernbly resolutions ... The effect of consent to the
merely that of a 'reiteration or elucidation' of the
• contrary, itmay be understood as an acceptance of the
• resolution by tIwould therefore seem declared by the
• opijuris respecting such rule (or set of rules), ta be
• especiall y those oftional kine, to which it isons,
99-100, para. 188).ty-law plane of the Charter" (at pp.
•
• 5.942625(XXV), to note that "the adoption by States of this text afiords an
• indication of their opiniojuris as to customary international Iaw on the
• question" (at p. 101, para. 191).
••
•• 75
•• 5.9The numerous resadoptebylarge and even overwhelming
majoribthe General Assembly over a period of ove! 35 years have
•• likee Securityresolutions already referred to,rnmunity' s
.t
.t (i)the terrinwhich theÎbeîng constbyIsri5l
1occupied territory", in relatioccupyingch Israel is the
• Power!
• (lithe Fourth Geneva Convention applies to that occupied territory,
• (iiobligations under that Convention and applicable prînciples andits
• Tules of internparticularly in 80 far as it relates to the
• establishment in that occupied territory of settlements which it is in
part the puof the wail being cby Israel to
• encourage and defend, and
• (ivactions taken by Israel to change the stahls and demagraphic
composition of thatoccupied territory have no Iegal validity and are
• nun and void.
•
•
5.96Third, the Court 15rnindful of its reas 'theilities
• principal judicial organ ofthe United Nations'" -aconsideration whichhas
• advisory opinionbyan organ of the United Nations (above,, refuse to give an
• paragraph 5.23).The fact that the Court is part ofthe institutiona! structure
of the United Nations requites it for tint reaSon in particular, and
• addition to reasons which flowpossessed by theity
• General AssembIy and Securîty Councîl in the international cornrnunîty at
••
• large, fully to respect resolutions adopted În accordance with the Charter
• by those organsishares respoentruto the
• UniteNatibythe interncornrnuAs it has been
• authorîtatîvel y said,
rendering an advisory opiinon ... must co-operatef...
• strive to give effect to the decÎsÎons of the principal
• them inconsequential" (Rosenne, TheLawand Practiceer
• of the International p112) 1920-1996, (1997),
• 5.9With these conin minci, the consistent position taken by the
• international community, and particularly by the Securîty Council and the
to the territoriesîn1967, is especîally significant andConvention applies
• weighty.
• (ivOccupiedterritory cannat beannexed by theoccupying State
•
• 5 .law on the power and authority of the occupying State in respect of theal
• occupied tis that it is not subjeof thethe sovereignty
occupying State; nor does that State have the right to annex the occupied
• be concluded). Any such annexation would be fundamentally inconsistent
• with the inherently temporary nature of the occupation, and would pre
• empt whatever final settlement might be reached by precluding eventual
• military occupation are mutually exclusive. Writing in 1968 Professor
• Schwarzenberger said ofthe view that wartime annexation was premature:
•
••
• 77
• on wartîme armexation. a rule ofoducedshaping the law
armexation ofterritories under belIigerent occupation.
• ad of an Occupying Power in relation to the enemylegal
• recognition of such an annexation by a third State."
• Tribunvoi'TheLaw of Armed Conflicts', 1968),
• pp. 166-7)
5 .9This has long been the accepted position in customary international law.
• That position is now reiruorced by the more recent emergence of a Iule of
• iuscoprohibiting the use offorce, for any annexation ofterritory as the
• result of military occupation would constitute an acquisition of territory in
therefore, be brought to an end byannexation.annot,
•
• 5 .1Assembly resolution 2625(XXV)(1970)that is reflected in the statement in General
•
• acquisition by another State resuIting from the threat
tram the threat or use of force sha11be recognized as
• concernFrieydRelatandCooperations of International Law
• among States in accordance with the Charter of the
• United Nations).
5.101 The Court has athe legal force of that resolution asan
• Paramilitary Activities leRepo1986, pp. 99-100,a, Military
• para. 188.
•
•
••
• 78
5 .102 Morethe Security Council and General Assembly have in rnany
• resolutions, relating not only ta the territories occupied by Israel but a150
• to occupied tiother parts of theworld, repeated againand again
void. Thus, by way of example in relirespect the actions of Israel nu11and
• of thterritooccupisinc1967, SC Resol242(1967)
• "Emphasizles1 theinadmissibility ofthe acquisition ofterrîtory by war"; SC
• Resolution267(1969) "Reaffirm[s] the established principle that acquisition
of territory by military conquest is inwithssible", as in substance (but
• slight varinwording) do SC Resolutions 271(1969), 298(1971),
• 478(19an681(19and many others. Many resolutiol15 of the General
GA Res. 3414(XXX)(5 December 1975), GA Res. 37/86D (10 Decemberr 1970),
• 1982), Res. 42/160F (8 December 1987: adopted143-1-10), GA Res.
• 49/62D (14December1994: adopted 136-2-7),GA Res 49/132(19 December
• 1994: adopted 133-2-23),GA Res. 53/42 (2 December 1998: adopted 154-2-
3), and GA Res. 57/110(3 December 2002: adopted 160-4-3).
• 5 .103 International law is not an overly-formalistic system. Hscategories reflect
• substance than form, and realîty rather than terminology. 50 it îs
witannexatAsaconcept ofmunicipal Lawpartîculargivena
• formaI clothing by the thalaw. International law has
• Jborrowed' that concept OWlfor example iofthe Tule
• international law that a belligerent occupant may not annex occupied
territory. But as Lord MeNair warned in International Status of South West
• into the internatioRepo1950, at p. 148); as a concept oftock and barrel"
• internatlaw, annexation represents a generalized view of the Tules
and practices adopted in the various municipallegal systems, and is net
• subject te the formaI requirements which may apply in the domestic law of
• any particular State.
•• 79
• 5.104 "Annexation"/ for the purpoprohibitingule of internationallaw
• it in relation to occupîed territory, îs not dependent upon there being (for
• using that term. For there to be an armexation in international law the
• substantive ithat one State should concluet itself in relation
• to territory whîch is not its Qwn in such a way as to manifest an intention
• its DwnState authority, to the exclusion of the authority of any other State.
This may be achieved by a formaI act of annexation leaving no doubt as to
• Îmade apparent in other ways.so be achieved indirectly where that intention
•
• 5.1prohibited conduct, namely conduct which changes the status of occupied
• territory. ithe clearest example of that category, sinee it
• Învolves the llnlawflll outright acquisition of teuitory by the occupying
• may oecur in other ways. Such other forms of change ofstatus are sirrùlarly
prohibited during the period when the regime of milîtary occupation
• the oceupying StatelS onIy temporary and must notherently Iimited powers of
• prejudice or pre-empt the outcome of whatever final 'peace' settlement
• territory it is significant that Seeurity Couneil and General Assernbly
• resolutions have 5conduct puta "change the
• status of" the territory in question: see e.g. the resolutions cited above,
• paragraph 2.32.
• 5.106 Asan internationallaotherchanges ofstatus are
promulgation of a proclamation of annexation: they may occur as the finale
•
• • 80
• outcome of a cumulation of occurrences, spread over time. In the field of
• expropriation of private property the notions of" creeping expropriation"
• or "indirect exare well-know, and hbye been treated
• property. There îs no reason in international Iaw to treat the taking ofof
• terrltory bfaannexation any differently.
5.107 Annexation brings foreign territory within the sphere of application of the
• StaSown domestic legal system. As such it ÎsdirectIy inconsistent with
1· Article 43of the Hague Regulations, which prohibits an Occupying Power
• the occupied civilian population ta its domestic laws.
•
(e)The construction of the wall in the Iight of applicable legal principles
• (i)TheoccupyingStatedoesnothavetheright10constructingthewalleffeclively
- annexoccupiedtenitory orothenvisetoalterUsstatus
• 5.108 ln very broad tenns the 50far constructede wall as
- it departs significantly from it) and several kilometres (in places up to 22
• kilometres) Întopied West Bishown on Sketch
• Map No.6following page 25.ltresults inastrip of land amounting to about
1- which will lie between theiwill also enclose 54ine;luding East Jerusalem,
Israeli settlements approximatel y 142,000Israeli settlers (36%of
- the West Bank settlSee United Nations, Office for the
- November 2003.niAffairs, 'New Wall Projections', OPT, 9
•
5 .effectively separate that strip of West Bank lands from the rest of the West
•
•,-"
•
• 81
• totwest of the Green Une.e link thelyingsely to Israells own territory
• 5.110 Tlu5 result wimany tîmes over if the planned and
• wall will move the effectivof the West Bank ahe eastern route of the
• considerabIe further iwill become a Uneth-south
• runrunga few kilomeh-es to the west of the River Jordan and the Dead
Sea. The result will then be that an extensive swathe of West Bank lands
• together wÎth the terrîtory of Israel.Palestinian territory and treated
•
• 5.111 There can be little doubt thalthe wall has the effec!,both already and even
• anddefannexing it to IsraeL This is clear both from the route; nature
and consequences of the wall, and from certain wider considerations.
•
• 5.1circumstIts constand the exprof land for that
• purpose must be seen in the context of aconsistent pattern of governmental
practices since 1967, aIegal backwhich (1)onal
• Occupying Power from changing the status of territory under occupation,ts the
• whether directl y through annexation or indirectly through colonization; (3)
• requîres aIl States, încluding the Occupying Power; to recognize the right
• of the Palestinian peopland (4)has set, through the
dthe legal and territorial pararneters for a permanent solution.embly;
•
• 5.113 Israel clearly has exercised and continues to exercise effective control over
• the Occupied Palestinian Territories. Moreover, there can be no doubt that
••
• the acts of the Israel Defence Forces are the acts of the State, as understood
• ithe sense of Article 4 of the Articles on the Responsîbility of States for
• Internationally Wrongful Acts.Thus, the expropriation of Arab Palestinian
land engages thebility of the State of Israel through its legislative,
• conformity irequireiby the international obligations ofof which are not in
• the State, rof their origin (Article 12). See
• International Law CornrnÎssion,' Articles on the Responsîbility ofStates for
• December1.nally WrongluJ Acts', almexed 10 UNGA resolution 56/83, 12
•
5.114 Allhough theGovernrnent 01Israel may argue thatexpropriation effeds no
• or appeal against an orpractice esintheshedlandowner may challenge
• evidence shows that such remedies are inadequate and ineffective. Cf.
• European Commission on HGreek ReportItVol.
• pari 1, p. 12, paras. 24-31.
5.115 The repractof exproprnon-exior meffective
• property for the purpose ofconstructing awall within Palestinian territory,
• closing offuous areas, and incorporating many Israeli settlements
• whilevîdîng and segregating Palestinian communities, readily allows the
• destroying the right of the PalestinCf. people to self-determination.
Ireland v. United Kingdom,rt of Human Rights, Series A:
• Judgments and Decisions, Vol.25, Decision 0129 April 1976,Judgment 01
• 18January 1978, para. 159.
• 5.116 Particularly relevant to a true evaluation of the purpose and effect of the
• Wall is its rto the unlawful settlements which have been
••
• 83
• constructed in the occupieiand around Jerusalem
intended ta serve, as a means of proitheing Israel's settlementsd is clearly
• occupied territories. Those settlements are areas which are under the total
• control of Israel: ta aIl intents and purposes they are Israeli territory. The
• wall seeks ta protect those settlements and to consolidate, as IsraePs, the
Rapporteur of the Commission on Human Rights (Mr Jolm Dugard) in rus
• Report of 8 September 2003 had this to say:
•
• activity [discussed later in section V(c)(ii)] and the
Eastrusalem and the West Bank are the principalnts În
• approximhalf of the 400,000 settler population
• will be incorporated on the Israeli side of the WaIl..."
• UNDoc. EjCNAj2para. 12.
5.117 The annexatîonist intent and effed of the wall was noted in the following
• terms by the Special Rapporteur:
• "In politics euphemi5rn 15often preferred to accuracy
• presently constthe territory of the West Israel is
Fence' or 'Separatioannexation' isard 'Security
• unconcerned about the need to obfuscate the truth in
• the interests ofantî-terrorism measures. Hawever, the
• witnessing in the West Bank is a visible and clear act
• There may hnooffiacof annexation of guise of security.
by the construction of the Wall, but it is impossible tol
• annexation of PaIestinian territory ..." (Ibid., para. 6)
•
••
• 84
• 1%7 boundary between Israel and Palestine which isthe
entitiesr lnstead it follows a route that incorpora tes
• para. 9)ial parts of Palestine within IsraeL." (Ibid.,
"Like the settlements it seeks to protect, the Wall is
may Jack aannexaas occurred in the casethe ground. It
ofEast Jerusalem and the Golan Heights. ButÎts effect
• by another name in law - conquest.n of this kind goes
• force, has been outlawed bUSee prohibition on theof
• territory by force applies irrespective of whether the
or in self-defence ..." (Ibid., para. 14)ct of aggressîon
•
• 5.118 As regards the intended permanence of the Walt and thus of the uruawful
• defaannexation wruch it representswas in nocial Rapporteur
beneficiaries of the wall are the sewibers, he continued: "The Wall
• built at great cost to Israel; it is projected that US$1.4 billion will be spent
• on its consThis simply coruirms nature of the
• Wall." (Ibid., para. 12).
5 .119 AState, by annexing territory which does not belong to it, is altering the
• boundarof its existinterri50as to encothess
• additional terribythe annexatiol1. The Special Rapporteur's
• conclusion in.this respect is clear:
• "Israel's claim that the Wall is designed entirely as a
boundariesis simply not supported by the facts." (UNI
• Doc. EjCN.4jpara. 16)
•
••
85
• (iiTheoccupying Statedoesnot havetheithet toalterthepopulationbalance
• occupiedbyestablishing alien settlements
• 5.120 The wall being constructed by Israel in the occupied Palestinian territories
• including in and around East Jerusalem divides the West Bank into six
• As indicateihas the clear effect, and also the intention; of and controis.
• consolidating ancvilianJewish settlements consu'ucted on
the West Bank and in the East Jerusalem area with the active assistance of
• Special Rapporteur Giogio Giaconne11i;the settlement poliey has already
• had the effect of dividing the West Bank, 'into sorne sixty discontiguous
• on Hurnan Rights, 'Question of the Violation of Human Rights in theission
• Occupied Arab Territories, including Palestine - Update to the Mission
• Report on Israel's Violations ofHuman Rights in the Palestinian Territories
• occupied since EjCN.4j20para. 26.
• 5.1ithe West Bank. Consequently, the construction of the wall in sueh a wayance
as to support that ofthe population balance is itself
• unlawful.
• 5 .122 The population balance of an occupied territory rnay be aHected by the
• operation of two processes, either separately or taken together. On the one
• leave the territory; on the other, persons from outside the territory, and
• particularly from tSown cotmay be transferred
• including in and around East ]erusalern, both processes have been at work;ories
both are contrary to applicable international rules.
•
• •
• 86
5.123 According to the traditional coiArticle 43cupation, as defined
1:. of the 1907Hague Regulations, the occupying authority is to beconsidered
i merely as a temporary, defactoadministrator; this is 'what distinguishes
• GenevaConventionrelativetotheProtectionofCivilian Personsin Timeo/War,
1. GenevICRC, ("TICRC Commentp275.),
1.
5.124 Thus, Article 47 of the Fom"thGeneva Convention provides:
• "Protected persons who are in occupied territory shaIl
whatsoever, of the benefits of the present Convention
• occupation of a111the instiortionshe
• govermnof the sterrifnOTby any
occupied territoriescupying Power, nor byies of the
• the occupiedtory."the latter of the whole or part of
•
• 5.125 TheCommentstates that the purposeof trus provisionis to prevent
maintaining law and order, from harming protected persons. Occupationr
• resulting frorn conflict does not imply any right to dispose of the territory:
• "an Occupying Power continues to be bound to apply the Convention as
• a whole even when, in disregard of itclaimss of internationallaw,
during a conflict to have annexed aUor part of an occupied territory" (The
• ICRC Commepp275-6).
• 5.126 Article 49of the Fourth Geneva Convention isdirectly relevant: that Article
• 1Sone of those which i8 expressly stated by Article 6, paragraph 3, to
continue in operation "for the duration of the occupation". ArticIe49 reads:
• "Indivior mass forcible transfers, as weIl as
• deportaof protected persons from occupied
••
• 87
• that of any otheoccupied or not, arecupying Power or to
prohibited, regard!ess of motive.
• total or partiaI evacuation of a given area if the
• reasonsemand. Such evacuations may notînvolve
• bounds of the occupied territory except when fore
• displacePersothusevacuashaH bech
in the area in question have ceased.
• "The Occupying Power undertaking such transfers
• extent,t proper accois provided to greatest practicable
• effected in satisfactory conditions of hygiene, health,
• safetyd nutrition, and that members of the same
fa"The Protecting power shaIl be Înformed of any
• transfers and evacuations as soon as they have taken
• p"The Occupying Power shalI not detaÎn protected
• of war unless the securityorf the populationhe dangers
Imperative mili5demand.sons
• parts of its own civilian population into the territory
• it occupies."
• 5 .127 The prohibition on transfers thus applies ta bath internal and external
• transfers, except temporarily,ty of ore population
Imperative military rea50ns 50 demand" (Article 49, paragraph 2).
• 5.128 The Commenpoints out that this provision, "is intended to
• prevent a practice adopted during the Second World War by certain
• Powers, which transferred portions of theÎr own population to occupied
••
• 88
• territory for political and racial reasons or in order, as they daimed, to
of the native population and endangered their separate existence as a race"
• (The Commenp. 283).
• 5.129 Moreover; "unlawful deportation or transfer or unlawful confinement of
• a protected person" constitutes a grave breach of the Convention under
• 1998me Statute of the International CriminaI Court makes "unIawful...i) of the
• transfer" a war crime ugrave breaches of theing of
• rnakes the following act a war crime included under the generaI headingly
• international armed conflict":f the laws and custorns applicable in
•
• Power of parts of its own civilian population into theng
• within or outside this territory".the occupied territory
•
• 5 .Jordan is a party to the Statute), the inclusion of those offences in Article 8
• as war crimes demonstrates5acceptance ofonal community'
• prohibitions embodied in customary internationallaw.as constituting, at least,
5.131 The wall is an Integral supporting part of Israel's unlawful seulement
• policies, and as such involvon the partreach ofinternationallaw
• of Israel.
• 5.1own civilian population into the occupied territory, there is no doubt that
•
• •
89
• Israel, the Occupying Power; has engaged În practices which învolve the
• "transfer [of] parts of its own civilian population into the territory it
1· a public1y proc1aimed poliey of the Government of Israel sinee thehas been
• occupation began, and has takenandace with the active support
• encouragement of that Goverrunent.
• 5.1orders for the temporary requisitioning of private Iand in the West Bank onry
• grounds of urgent military necessîty, to be used primarily for Israelî
• settlements. The lsraelî High Court upheld these orders on the grounds
• the High Court in 1979 ordered the dismantling of a settlement and theh
return of the property to its owners beeause the settlers themselves by
• military orders sineeto be used to requisitionot temporary,
• property, inc1uding for theconstruetion ofby-pass roads. In this way, it has
• Banks state land. See 'The IBarrier onsrael's Separationent of the West
• Affected West BankReport of the Mission to the
• Coordination Committee (LACq, Update Number 3, 30 November 2003,
• paras. 52, 53.See also Economic and Social Couneil, 'Report prepared by
• and social repercussions of the Israeli Qccupation on the living conditions
• of the Palestinian people in the occupied Palestinian territory, including
• doc. Aj58j 75-Ej 2003j 21,12 June 2003, para. 31 (41.9%).rian Golan', UN
• 5.1formaI undertaking in Chapter 5, Article XXXI,paragraph 7 of the 1995ng
•
••
• 90
• Interim Agreement on the West Bank and the Gaza Strip ta refrain frorn
and Gaza Strip pending the outcome oft1e permanent status negotiations" Bank
• and that "the integrity and status" of the West Bank and Gaza Strip "will
• be preserved during the in2Article XI. paragraph
• 1and Chapter 5,Article XXXI,paragraphS). The Economic COmmlssion for
Western Asia conc1uded that "The confiscation of land and properties is a
• Economie and Social Couneil, 'Report prepared by the Economie and Social
• Commission for Western Asia on the economic and social repercussions of
• the Israeli occupation on the living conditions of the Palestinian people in
the occupied Palestirùan territory, including JerusaIern, and of the Arab
• 1Jun200para. 37.e occupUNdoc. Aj58j75-Ej2003j21,
•
• 5.135 Such movinto the Occupied Terrihave been
intended to effect basic demographic change. The numbers ofsettlers have
• OPT, but had incr250,0b199In200it was reporled8,400 Jewish settlers in the
• that the settlin the West Bank (excluding East Jerusalem) and
• Gaza Sh·iphad5.percent 2002, 102while Israel's
overallwth was only 1.9 percent. When added to the 180,000 Israelis
• 8per cent of Israel's Jewish population of 5.1 million. Settlers in the West
• Bank,za Strip, and the Golan Heights received government mortgages
• during 2000at a rate more than twice the national average. SeeFoundation
for Middle EIsraeli Settlements in the Occupied Territories: A Guide,
• Economie and Social Couneil, 'Report prepared by the Economie and Social
• Commission for Western Asia on the econornie and social repercussîons of
• the Israeli occupation on the living conditions of the Palestinian people in
••
• the occupied Palestinian territory, incIuding JerusaIem, and of the Arab
• population in the occupied Syrian Golan', UN doc. Aj58j75-Ej2003j21,
• 12 June 2003, paras. 30, 32; Foundation for Middle East Peace, Reporton
• December 2003;ICRC, Annual Reportfor2002,302; Dugard Report, paras.
36-40.
• 5.136 The other element inchanges toan occupied territory' s population balance
• - the removal of the indig- has been equatlytants
• apparin IsraeI's practicePalestterritories
• policies are well-established and a matter of public record, but they serve
• oruas backgto the further application of those practices and
poIicies resul ting from the constr,ction of the walt which is the immediate
• concern of the present advisory proceedings.
• 5.137rder for there to be Hindividual or mass forcible tTansfers ..of protected
• that theOccupying Power should, in aformaI way, promuIgate orders for .ssary
• the transfer of local populations (aIthough cIearIy such orders would fan
• within the prohibition contained in Article 49 of the Fourth Geneva
practices which are intended to drive the local inhabitants from their
• territory,ich may be reasonably foreseen to have that resuIt. Given
• the nature of recent dispossession and displacement practices, as weIl as
• concernut possible future refugee fIows, as is described below.ave expressed
•
• 5 .("mass transfers"),Uforcible" if the measures adopted as large numbers
• by the Occupying Pipractice to Ieave the affected local
•,.
92
population no realistic alternative but te leave the territory. Even if such a
• construction Ï15nevertheless a clear consequence; and Article
• 49 makes it c1ear that transfers of the local population are prohibited
• "regardless of theirThe implications of the wall and IsraeI's
• related pand practices for forced displacement and refugee
movement are considered further below in section v (c) (iv).
• 5.13IshouId be recalled that the international conununity has consistently
• apposed 5settlement and transier policies. In Resolution 446 (1979),
• the SecurÎty CouneE called,
"once more upon Israel, as the occupying Power, ta
• rescind its previous measures and to desist from to
• legaI status and geographical nature and materiallye
• territories occupied sillce 1967, including Jerusalem,
and, in particular; not to transfer parts of its cÎvilÎan
own population into the occupied Arab territories."
5 .140 In Resolution 465, adin 1980, the Seeurity Couneil
'Determithat aU measures taken by Israel to change the physical
Palestînian and other Arab territories occupied sinee 1967, indudingthe
• Jerusalem, or any part thereof, [hadJ n5 legal vaIidity and that Israel'
• poliey and practices ofsettling parts ofits population and new immigrants
• in these territories constitute a flagrant violation of the Fourth Geneva
construction of new settlements te cease, and for aIl States not ta provide
• Israel with any assistance to be used in connection with settlements. The
• basic legal position has beenoresolutio115.SeeSC
• res. 46580), paras. 5, 6, 7, adopted on 1 March 1980; SC res. 904 (1994),
••
• 18 March 1994;SC res. 1322 (2000),7 October 2000;SC res. 1397 (2002);see
• alsamong many others, the following General Assembly resolutions:
• UNGA res. 3240 (XXIX),29 Novernber 1974; UNGA res. 36/15, 28October
• 2001;UNGA res. 57/126, 11December 2002;UNGA res. 58/98, 9December
2003.
• 5.141 ln Re2003/7, the UN Coon HumRights also
• expressed conceTn,e
.' "At the conIsraeli seactrvlbes,
• occupied territories and related activities, such as the
• the demolition of houses, the confiscation and
and the construction of bypass roads, which changeians
• of the occupied territories, including East Jerusalem,
• Convention ..." E/C15 April 2003,,IFourth] Geneva
• adopted by a recorded vote of 50-1-2.
• 5.142 These rbyUnited Nations bodies, particularly the Security
• Counccannot be This clear from certain statements by the
in Namibia (Sout(IRepo1971). Faced with declarationsesence afSouth Africa
• by the Security Council that the situation before the Court was illegal, the
• Court said that
• "would be an untenable interpretation to maintain
• Security Council under Article 24 of the Charter, on
• fTee to act in disregard of such illegality or even to
the Security Council adopts a decision under Articlehen
•
••
• 25iaccordance with iis for member
• States to comply with that decisioTI, including thos€
• it and those Members of the United Nations who aret
be to deprive thls principal organ of its essential
• "117... A binding detmade by anCharter.
• competent organ of the United Nations to the effect
• consequence. Once the Court is faced with such at
• judicial function if it did not declare that there ls an
Nations, to bring that situation to an end ...ted
• created and maintained a situation which the Court
• the obligation to put an end to it..." (at paras. 112,117-
• 118).
• 5.143n the face of repeated decJarations by competent organs of the United
Nations that Israpolicies and practices are illegaL the
• construof the waII by Israel in the occupied Palestinian territory
• consolidaprotecting those settlements is the very opposite of whatfect of
• Israel's obligations require.
• (iiiThoccupying State is notentitled in occupied territory toconstruct a wall which
• serves to estorincrilunlawful conde factor and
annexothat teoany thereof
• 5.144 Artic1e430fthe 1907Hague Regulations Respecting the Lawsand Customs
• of War Land of 1907 provides that the occupant, 'shall take all the
• measures in his power ta restore, and ensure, as far as possible, public
• order and safety, whilereprevented,forcelaws inely
••
• 95
• intcount(Emphasis supplied) The inhabitants 01accu pied territory
may not be compelled to swear allegiance to the occupying Power (Article
• convictions and practice, must be respected. Private property cannat beous
• coniiscated' (Article 45).
• 5.145 Thenecessarily tempDCpation isunderlined by Article
• 55 of the Hague Regulations; it provides that,
• "The occupying State shaonly asegarded
estate, forests,and agrîcultural esta tes...situated inthe
• these properties, and adrninister them in accordance
• with the rules 01usulruct." (Emphasis added)
• 5.146 Article 56 states lurther that,
• dedicated to religion, charity and education, the arts
• and sciences, even whenshall beroperty,
wilful damage done of this character,on or
• forbiand should be made the subject of legal
• proceedings." (Emphasis added)
• 5.147 Article 47 of Geneva Convealso emphasizes the
tempordefanature ofoccupation; itprovides that Protected persons
• who are in occupied territory shaH not be deprived, in any marmer
• whatsoever, of the benefTts of the Convention
.. "bany chaintroduas the result of the
governrnent of the by any agreementnorstitutions
• concluded between the authorities of the occupied
• territorieshe Occupying by any nor --------,,.
•
• 96
• occupied territory." (Emphasis added) or part of the
• 5.148 TheCommenrecalls that, 'The legislative power of the occupant
as the Power responsible for applyîng the Convention and the temporary
• holder of authority is limited to the matters set out ...' (The ICRC
• Fourth Convthat, 'The rule limitiof the jurisdictionticle 70 of the
• Occupying Power ta the period during whieh it is in actual occupation of
• the terrîtory is based on the fact that occupation is in principle of a
temporary nature' (Ibid., p. 349).
• 5.149 Immedfollowthend of the 1967 hthe Israeli
• government extended its laws ta occupied East Jerusalem, expanding the
• exproprPalestland. During the yeaithasng include 71 square kilometres of
• exproprwithacompensamore than 60,ÛOOofnums
Palestinian land in occupied East Jerusalem and assigned it exc1usively to
• Jewish use. See UN DivisiRights, 'The Status of
• Jerusalem', 97-24262 (1997),22-3.
• 5.150 The Occupying Power has aiso imposed its domestic legal regime in
• of the Fourth Geneva Convention. In the other occupied zones, Israelcle 64
• selectivelyplaced existing laws with its own domestic laws and
military orders, including through tto application of its municipallaw
• Practicesscrimination are addressed further below in section (iv). territories.
•
• 5.151n consithe lawfuiness of the wall in tenns of the applicable
• immediate physical characteristics and consequences, but aiso to the whole
• •
97
• adminisapparatus of control which accompanies the system's
• practicai operinotjust a physical construct Us principal
r· depth of 50-70 metres, a "dosed area" in the north west part of the West
• Bank, and a new, discriminatory system of residency status. Moreover, as
• fragmentation of thealread y continuousl y dividednded to complement the
• by illegal settlements and settler access roads. The wall, far from being a
• serving Israeli policy of the West Bank orion
• substantial parts thereof.
• 5.152 At least tlüee distinand operation of thenstruction
barrier system calI for consideration: (a) The construction of the barrier
• military authorities; (b) the wall has certain irrunediate consequences fori
• the inhabitants living and working in its vidnity; and (c) the wall has
• legal implications of the barrier system in respect of each of these three
• aspects are examined in the next following sections.
• (ivThoccuStais not entitento construct a wall which
• seriously and disproportionally impairs the enjoyment by the inhabitants of that
• te17ithhuman rights
•
•
•
•
•• 98
• (a)Theprotectiondue underinternationalhumanitarianlaw
•
• 5.1occupied when it IsactuaIly placed under the authority of the hostile army.d
• The occupation extends only to the territory where such authority has been
• and rights, the lives of persons, and private property, as weIl as religious
• convictions and practice, must be respected".
5 .154 Under the Fourth Geneva Convention, the Occupying Power has specifie
• responsitowards the under its control. Article 27
• provides:
• HProtected persons are entitled, in aIl cITcumstances,
• their manners and customs. They shalI at aIl limes bedly
• against aIl acts of violence or threats thereof and
• against insults and public curiosity.
attack on their honour, in particular against rape,
• enforced prostitution, or any formof indecent assault.
• be trwittsame consibthe Party to protected persons shaH
• adverdistinctiinpartion race, without any
• religion or political opinion.
• measurof control anin regto·yconflict rnay take such
• the war." persons as may be necessary as a result of
•
•
••
99
• 5.155 ln the view of the International Cornnùttee of the Red Cross, Article 27 "is
the basis of the Convention, proclaiming as it does the principles on which
the whole of 'Geneva lCommenta199-200).e ICRC
• 5.156 The right of respect for the person includes, in particular, the right to
• move about freely can be subject to limitation in wartirne, "that in no wiseo
• means that it lin a generalthe regulations
concerning occupation ... are based on the idea of the persan freedom of
• civiliansremaining in general unimpaired" (The ICRC Commentary, p. 202).
• 5.157 As Article 27 paragraph 3 states, aIl protected persons are to receive the
• discrim1110ugh the Occupying Power may have a measure oferse
• discretion in taking security measures, "What is essential is that the
• of the persons concerned ... IT1hese rights must be respected even when
• measures of constraintCommenta206-7). (The lCRC
5.158 Article 29 of the Fourth Geneva Convention underlines the responsibility
• of the State:
• I/TParty to the conflict in whose hands protected
• aeeorded to them by its agents, irrespective of any
• individuaI responsibility which may be incurred."
• .15As the ICRC Commentmy concludes, compensation for damage resulting
• is sufficiently broad ta include everyone in the service of a Contracting
• Party, civil servants, members of the armed forces, rnembers of
11).-rnilitary police organizati210- etc" (The ICRC Commentmy, pp.
•
••
• 100
5.160 Article 31 prohibits the use of "physicaI or moral coerdon" against
• protected persans, for any purpose (The ICRC whatever
• Commentap. 220).
• 5 .161 Under Article 32, the Parties,
from taking any measure of such a character as toed
cause the physical sufferingofr extermination
appHenot onlta murrtorrurcorporalohibition
• experiments ... but also to any other measures of
• brutality whether applied by civilian or rnilitary
agents."
• 5 .162 ThCommentrecalls that the Diplomatie Conference deliberately
• chose to use the term, "of suchinstead of "likely cause"
• to cause". In thus substituting "a causal criterion for one of intention, the
Conference airned at extending the scope of the Article" (The ICRC
• Commentpp222-4).
• 5.163 TheCommentalso states that the prohibition of "other measures
of brutality" is similar to that rela27(8),o" acts of violence" in Article
• and
• Irintended to cover cases which, while they are not
• cause suffering to protected persons. There is no need
to make any distbetwesuch practices
• both caseirespect of aIlthe acts covered by thisl; in
• must both bear responsibility in accordance with the
provisions of ArticleCommentp.y,e ICRC
• 224)
•
••
• 101
• 5.164 Under Article 33 of the FliNprotected persontion,
may be punished for an offenee he or she has not personally committed.
• terrorism are prohibitCommentpoints out that the intimidation
• prohibition does not refer to punishments under penallaw and according
todue process, but to "penalties of any kind infIicted on persons or entire
• groups of peindefiance of the mosprinciples of
• humanity, for acts that these persons have not cornmitted" (The ICRC
• Commentp.225).
5.165 With respect to tof "measof intimior ofn
• terrorfthe ICommentrecalls that in past conflicts,
•
intended to forestall breaches of the law rather than to
• terrorise the population, the belligerents hoped to to
• effect however, such practices, by reason of theired
• strengththe spirit of resistance. They strike at
guilty and iImocent alike. They are opposed to aIl
• that reason that the prohibition ofcollective penalties
• of intimidation or terrorism with regard to protected
• Commenjpp. 225-6)mbe..." (The ICRC
• 5.16650far as it may be contended that the construction of the wall is a
• response to unlawful activities which prejudice the interests of Israel and
• inhabitaffected, Article 50 of the Hague Regulations nonetheless
provides that,
•
•
• •
!O2
:. "No general penOotherwise, shan be
1 individua!s for which they cannot be regarded ascts of
• jointly or severally responsible".
• 5 .167 Article 147 of the Fourth Geneva Convention prohibits wilfully causing
• which itclassifies as "grave breach". Article 8(2)(a)(iii)of the Statute of the
• International Criminal Court similarly characterises the act of "willully
causing great suffering or serÎous injury to body or health" of protected
• persons in occupied territory as-a war crime.
• 5.168 Article 75 Protocol l, which 15entitled "FundamentaI
• internatreads as follows, sa far as relevant to the present request
• for an Advisory Opinion:
• "1. In sa far as they areaffected by a situation referred
• power of a Party to the conflict and who do not the
• Conventions or under this Protocol shaIl be treated
minimum, the protection provided by this Articles a
• other opinion, national or social origin, wealth, birth
• Party shall respect the person, honour, convictions Each
• and reIigious practices of aIl such persons.
• at any time and in any place whatsoever, whetherbited
• (a) violence life, health, or physical or mental
• weIl-being of persons, in particular:
(murder;
•
• •
• 103
• (iii)corporal punislunent; andr physical or mental;
• (iv) mutilation;
• (b) outrages upon personal dignity, in particular
prostitution and any farm or indecent assault;
• (c) the taking of hostages;
• (cl)collective punisrunents; and
• (e) threats to commit any of the foregoing acts."
5 .169 The ICRC Commentarynotes that the prohibition on collective punishrnents
• was added by the Conferthcollective punishments
• might be inflicted by processes other than proper judicial procedures and
• 75.notfurther that the concept omust bective punishmentragraphs of Article
• understood in the"icaverorulegal sentences but
• sanctions and harassment of any sort, administrative, by police action or
otherwise" (The ICRC Commentary, paras. 3054, 3055).
• (b)The protectiondue under internationalhuman rights Law
• 5.170 The applicability ofthe Fourth Geneva Convention, and the corresponding
• obligaof the OccPower, byreason of the fact of
• occupation (Article 2ioccupied territory under the
4; The ICRC Commentary, p. 47).r 'hands' of the Occupying Power (Article
•
1. 5.1violations of the human rigibound, by reasony which ithe responsibility of Israel for
1 of bath customary international law and conventions.
•
••
• 104
• 5.1Universal Declaration of Human Rights, the 1966 International Covenant
• on Civil and PoIiticaI Rights, and the 1966 International Covenant on
Economie, Social and Culturainstruments deaIition,certain
• Elimination of AlI Forms of Racial Discrimination, the 1979 Convention on
• the Elimination of AIl FonTISof Discrimination against Wornen, the 1984
• ConventAgainst Torture and Other Cruet Inhuman or Degrading
• Child.ofthese instruments, except the Universal Declaration, aref the
'treaties', to which Israel is in fact party and in respect of whlch it has
• entered no reservations relevant to the present issues.
• 5.173 Jordan is aIso party to the same body of treaties and has a manifest legal
• interestheir effective implernentation by Israel.
• 5.174 TI1econtinuing applicability of the 1966 International Covenant on Civil
• and PoIitical Rights (ICCPR66) incircumstances ofmilitary occupation and
military rule has been recognized by the Court:
• "The Court othat the prof theon
• does not cease in times of war except by operation of
• may be derofrom in a time of nationalrovisions
• WeapoAdvisory OICRepo1996, 226,rentof Use of Nuclear
24par25.
• 5 .175 TI1eHuman Rights Committee, inon theoncluding Observations
• periodic report submitted by 199observedr the Covenant in
• similarly:
•
••
• lOS
• applicability of rules of hurnanitarÎan law does not by
accountability of the-State 2, paragraphenant or the
• 1, for the actions of its aui8orîties. The Conunîttee
• the Covenant must be held applicable to the occupied
• West Bekaa where IseffectivecontroL."rn Lebanon and
emphasis added.79/ Add.93, 18 August 1998,
•
• 5.176 In his 2002report, the Special Rapporteur on the question of the violation
• addressed the connection between iand humannal humanitarian
rights Iaw. He referred to Article 27 of the Fourth Geneva Convention,
• which obliges the Occupying Power to respect the fundamentaI rights of
• protected persons, and noted:
• "The 'rights of the ÎndivîduaI' have been proclaimed,
rights instrparticuthe international
• social culturighof1966andin thel rights, and economic,
• jurispruof their monbodieThese
• Fourth Geneva Convention by defining and givinghe
borne out by repeated resolutions of the Generalhis is
• Commission on Human Rîghts, Mr. John Dugard, onr of the
• territories occupied by Israel sinee 1967': UN doc.
• doc. E/CN.4/2004/6, 8 September 2003,para. 2.
•
• (c)The impact of h~marights: relevant provisions of international
• conventions
• •
• 106
• 5.17human rights. The following list of relevant provisions ls necessarilyecting
illustrative, rathbyreason of the obvious difficulties in
• obtaining information on the scope and impact of the wall. The selection
• below îs nonetheless drawn up in the light of publîshed reports and
• projections.
• 5.178 In its November 2003 analysis of the actual and likely impact of the wall,
basOinformation published by the Israeli Governrnent, the UN Office
• of the wall's length runs along the Green Line, and that its planned path
'. inc1udes deep cuts (up ta 22 kms) into the West Bank. Approximately
• 210,000acres, or 14.5per cent, of West Bank land excluding East Jerusalem
wilie between the walI and the Green Une. This land, sorne of the most
• Palestinian12villages and wieither live in c10sed
• areas bethe wall and the Green Une, or in enclaves totally
• surrounded by the waIl. Also between the walI and the Green Une wîlI lie
• 5Israeli settlementscont142,Israeli settlers (36%
OPT,November 2003; also UNRW A, Reports on the West Bank Barrier,ons',
• 'own Profile: Impact of the ]2004alem Barrier', ]anuary
• 5.17More 400,other PaIestinians living to the East of the wall will have
• to cross it to get to fanns, jobs and services; those in enclaves or closed
• areas will have to cross the wall to access markets, school5 and hospitals,
or to maintain famil ylinks. Th2Novembery-General' sReport of
• servi2from school5, 8 from primary water sources and 3 fromes from health
• electrnetwor(para. 23). Tof Qalqiis totally
• surrounwith the only exit and entry point controIled by an Israeli
••
• 107
• and separating surrounding villages from its markets and services (Ipara.and
• 24). In estimation,sorne 6Palestin30% ofor
the population in the West Bank, will be directly harmed by the walL
• Non-discrimination
•
• 5.1Racial Discrimination was ratified by Israel on 2 February 1979, without
• reservation relevant to this rIprovides asn Advisory Opinion.
follows:
• "Article 1
• 1.n this Convention, the term 'racial discrimination'
• preference basOUTdescent, or nationaltriction or
• nuIlifying or impairing the recognition, enjoyment or
fundamefreedoms in the political, economic,
• social, cultural or any other field of public Iife.
• exclusions, restrictionss made by aStateinctions,
• citizens.this Convention be.tween·citizens and non
• "Article 3
• and apartheid and undertake to prevent, prohibit andion
under their jurisdîction ...his nature in terri tories
• "Article 5
• In compliance with the fundamental obligations laid
• undertto prohandto elîmîraclaIention, States Parties
• right of everyone, wias to race,nctiontee the
••
108
• cOUor national or ethnie origin,. to equality before
• rights..."otably in the enfoyment of the following
• 5 .181 The 1966 International Covenant on Civil and PoIîtical Rights was ratified
• by Israel on 3 Januareservrelevant ta these
• proceedIprovides as follows:
• "Article 2
• undertakes ta respect and ta ensure ta aIl individuals
• rights recognized in the present Covenant, withouton the
• or social origin, property, birth or other status.tional
"Article 16
• EveryshaH haverÎght to recognition
• "Article 26 as a persan before the law.
• AlI persons are equal before the law and are entîtled
• discrimination and guarantee to aIl persons equal and
• eground suCOIOsex, language, religion,ation
• property, birth or other status."nal or social origin,
• 5 .182 The 1966 International Covenant on Economie, Social and Cultural Rights
• was ratified by Israel on 3 January 1992, without reservation relevant to
• these proIprovides as foHows:
•
•
•• 109
• "Article 2
•
• undertake to guarantee that the rights enunciated in
discrimiof any kind as to race, coIour, sex,
or social origin, property, birth or other status ..."al
5 .November 1991, without reservationItelevant to these proceedings. Israel on 2
• provides as follows:
• "Article 2
• 1. States Parties shan respect and ensure the rights set
• their jurisdiction without discrimination of any kind,
• poIitical or other opinion, national, etlmic or socialn,
• origin, property, disability, birth or other status.
ensure that the child is protected against aHforms of to
• status, activities, expressed opinions, or beliefs of the
• child's parents, legal guardians, or family members."
• 5 .184 The diagainst Palestinian residents of walled off areas IS
• Western Asia considers that patterns of Israeli rnilitary and seUler land use
• coincide with "seveagainst Palestinians in aecess to
• Social Council, 'Report prepared by the Economie and Social Commission
• for Western Asia on the economic and social repercussions of the Israeli
occupaon the livingof the Palestinian people in the
•
••
110
• occupied Palestinian territory,habcluding Jerusalem, and of the
• population in the occupied Syrian Golan', UN doc. Aj58j75-Ej2003j21,
• 12 June 2003, para. 39.
• Proportionality
• 5.185 Article 4 of the International Covenant on Civil and PoliticaI Rights reads
• as follows:
• "Article 4
• Iife of the nation and i5e existence of whichthe
• obligations under the present Covenant to the extentsent
providedIDeasare not inconsÎstent with the situation,
• not involve discrimination solely on the ground ofd do
• race, colour, sex, language, religion or social origin.
• provision., 15, 16 and 18 rnay be made under thiss 1
• 3. Any State Party to the present Covenant availing
• infothe other Statthe presenttion shall immediately
• General of the United Nations, of the provisions from
• made, through the same intermediary, on the date ont
• which it terminates such derogation."
• 5 .186 Article 4 of the International Covenant on Economic, Social and Cultural
• Rights reads as follows:
•
••
• "Article 4 111
The States Parties to the present Covenant recognize
State in conformity with the present Covenant, the the
as are deteIaorin5far as this may beto such limitations
• for thepose of promoting the general welfare in aleIy
• democratic society."
• 5.187 The rule of pr1a15Inherein tprovisions of
• internahumanitlaw, indthe principle of distinction
• betweencomand non-combatants, and the notion that thechoice of
illustration of the Iule in context: of Additional Protocol l provides an
•
• objectives for obtaining a similar military advantage,
• which may be expected to cause the least danger tock on
• civilian lives and to civilian objects."
5 .1Iaddition, Article 57(2)(a) requires that thosewho plan or decide upon an
• attack shall "take aIlin the choice of means and
• clvilian casualties.th a view to avolding and in any event minimizing
•
• 5.189n international human rights law, as shown by the extracts from applicable
exercise of hurnan rights be in accordance with the law and necessary in a
• democratic society. In tirne of emergency, measures of derogation must be
• "strictIy required" by the situation, not incompatible with a State's other
• obligations under international law, and non-discriminatory.
•
• •
112
• 5.190 Alternatives to the wall wruch would result in effective protection against
• international humanitarian law, do not appear to have been considered.
• Similar lack ofconsideration appears to have gov€rned the choice of route.
• See B'tselem, 'Behind the Barrier: Human Rights Violations as a Result of
• Israers Separation Barrier', jerusalem, March 2003 pp. 26-7,29-30.
i.• , Freedorn of movernent and the right not to be displaced
5.191 Article 12 of Covenant on Civil and Political Rights
• provides:
• "Article ]2
.. shall, within that territory, have the Iight to liberty of
2.Everyone sha1l be free to leave any country,
• including bis own.
• any restrictions except those which are provided byto
• rights and freedoms of others, and are consistent withc
the other rights recognized in the present Covenant.
enter bis own country.n of the right to
.. 5.192 50 far as this right is expressed in terms of the 'State' and the Palestinian
.. territories remain occupation of Israel, it isnonetheless submitted
.. particularly given the necessary nexuS between exercise of this right and
.. the realisation of other protected rights .
..
..
.. ..
..
5.193 The Israeli Go50far given little or no information about
• future 'access gates' (Secretary-General's Report, para. 27; Humanitarian
• Mission Report, Update No. l, para. 6). With respect ta existing gates,
1. HumarutaMissÎon Report, Update No. 3, paras. 12, 18-29. been reported:
..
.. 5.19October 2003 requiring residentsclosed zone' Înly exîstingitary orders on 2
.. Jenin, Qalqiliya and Tulkarm districts to apply for permits to carry on
living there. At the sarne time, the-IDF opened the area ta alien settlement,
• persans entitled to emigrate ta Israel under the Law of Return. See Israeli
.. Defenee Forces, Order concerning Security Directives (Judea and Samarîa)
.. (Nurnber 378),1970 Declaration concerning the Closure of Area Number
Report, para. 16;Humanitarian Mission Report, Update No. 3, paras. 45-9.on
•
• 5.1reasons, but as collective punishrnent; where permits are required, thety
• process "entaiIs repeated harassment of the residents and is based on
.. arbitrary criteria". See B'tselem, 'BRightsthe Barrier: Human
pp. 13,14. asa ResultofIsraeI' sSeparation Barrier', Jerusalem, March 2003,
•
• 5.1services may have to rnigrate east to the West Bank (and possibly beyond,
• to other States). See Hurnanitarian MisII,n Report, paras. 8,·28;Annex
• paraII-21-Humanitarian MissÎon Re1par26-44,te No.
.. Report: HThe wall will therefore create a new generation of refugees or
.. internally displaced persons" (para. 10).
.. 114
1) 5 .197 As the Office for the CoordinatAffairs has put it, "If
the rnilitary orders that restrict entry into the closed areas between the
.. GreenUne and the wall are applied to the new parts of the wall then many
thousands of Palestinians are likely to be forced frorn their homes and
land"; United Nations, Office for theof Humanitarian
Assistance, OPT, 'New Wall Projections', 9 November 2003,p. 3.
5.198 The rightreedom ofmovement, however, entails also the right notto be
1) displaced, not to become a refugee. See Article 13, 1948 UniversaI
Declaration of Human Rights:
.. "1. Everyone has the right to freedom of movement
.. and residence within the bord ers of each State.
2.Everyone has the right to leave any country,
• includingOWlandtareturn to his country."
5.199 Although "Everyone has the right to seek and to enjoy in other countries
asylum frorn persecution" (Article 14(1), 1948 Universal Declaration of
Human Rights), none should be co50 .led to do
..
5.200 In 1997,a setoPrinciples on InternaI Disinc1udedtwere
.. M.tDeng,.submitted to the United Nations Commission on Human Rights,ncis
.. pursuanto Commissioresolut1997/39, AddenduUN doc.
.. EjCN.4j1998jAdd.2. They havesince beennoted by the Commission,
referred to on several occasions by the General Assembly, and have been
widely distributed by United Nations agencies, including the Office of the
.. Coordinator for Humanitarian Affairs. Albinding, theyaIly
draw on the existing body of inthumanitarilaw and
.. international human rights law. Principles 5 and 6 deal with protection
.. against displacement:
..•
• 115
• "Principle5
and ensure respect obligatunderal actars shaH respect
• humanitarlaw, in alI cir50as toces,
• displacement of persons.fiight Iead to
.. "Principle6
1. Every human being shall have the Tight to be
• or her home or place of habituaI resÎdence .d from his
• 2. The prohibition ofarbitrary displacement includes
..? displacement:
deansior similar aimeat/resultingartheid,
• inaltering the ethnie, religious or racial composition
• of the affected population;
• ofthe civilians or Imperamilitaryct, unless the security
reaso5demand;
• are not justîfied by compelling and overrîding publich
• interests;
• of those affected requires their evacuation; and health
(e) Whitused collecpunishment.
• 3. Displacement shall last nbylonger than required
• the circumstances."
• 5.20That the right ta seek asylum is "protected" does not imply any freedom
or discretion on the part of the State in effective control of territory, either
• ground which are foreseeably likely ta result in internaI or externaI forced
• migration. The Hright ta remain" 15thus consequentlal upon the suffident
• and effective protection of the human rights of those within the territory
•-------------- ---_------ -..__----------------------
•
• 116
and! or subject to the jursovereidfacpower.de
• See Article 2(1),1966 International Covenant on Civil and Political Rights:
• "Bach State Party to the present Covenant undertakes
• territory and subject to its jurisdiction the rightsts
recogniin thpresenCovenanwithout
• language, religion, political orother opinion, national
• or social origbirth or other status."
• 5 .202 The poHey and practice of dispIacement resulting frorn the construction of
the waIl, coinhistorical context and in the light of consistent
• patterns of expropriation, destruction of agricultural land, orchards and
• olive groves, designaIand as" sTrefusaI of retum
• an inference of permanent fordbIe transfers attributable to Israel. Suchow
transfers are contrary to any exception permitted under the Fourth Geneva
• Convention.
•
5.20in international law. Under its Statute inopted by the Seeurity Councilbility
• SC resolution 827 (1993) of 25 May 1993 (amended by UNSC resolution
• 1166 (1998) of 13 May 1998), Tribunal for Former
• Yugoslavia has "the power to prosecute persons responsible for serious
violations of international humanitarian Iaw committed in the territory of
• of crimes against hurnanity, as foIIows:le 5 provides for the prosecution
•
• prosecute persons responsible for the following crimes
whencommitteinarrneconfliwhether
• against any dvilian population:r, and directed
• (a) murder;
• --------
•
• 117
(b) extermination;
• (c) enslavement;
• _(e) imprisorunent;
(f) torture;
• (h) persecutionsIiticaI, racial and reHgious
• grounds;
• (i) other inhumane acts."
5.204 In its Judgment of 17 September 2003,the AppeaIs Chamber in Prosecutor
• v. Milorad Krnojelacsaid:
• "218.The AppeaIs Chamber holds that acts of
persecution punlshableicle 5(h) of the
• Statute are not limited tacross acements
• displacements aîmseguathe right andle
• and homes without outside Interference. The forcedties
the inhabitants of a terrîtorycrirninaId uprooting of
• responsibility ofetrator, not the destination to
• which these inhabitants are sent..."
5.205 The Appeals Chamber took account of Article 49 of the Fourth Geneva
• Convention, ArticIe850f Additional Protocoll and Article 17of Additional
• Protocol II,and found that "the Geneva Conventions and their Additional
• Protocols prohibit forced movement within the context ofboth internaI and
international armed conflicts" (para. 220).
• "221... The Security Council was ... particularly
• to confer jurisdiction on the Tribunal to judge such
cornrnittedn internaI or an international armed
!. conflict. Forcible displacements, taken separately or
cumulatively, can constitute a crime of persecution of
'.
1•
• 118
Statute. This ialsa supported by recent stateof the
practice, as reflected in the Rome Statute, which
• across national borders can constitute a crime against
humanity and a war crime."
•
• 5 .206 The Appeals Chamber thereupon eoncluded that,
• national border, for reasons nundernnitteda
internatiolaw, are crîpunishabunder
• committed with the requisite discrimina tory intent,
• constitute the crime of persecution under Article 5(h)
of the Statute
• Yugoslavi[thatis, duritheearly19905] in the former
displacemeboth within a state and across a
internationallaw."rimeundercustomary
5 .207 The conselements of the cnme of forced displacement were
considered further by Trial Chameal. IT-95-9 "Bosanski
SamacJudgment of17Oetober 2003.The Court found that" displacement
of persons is only iiis forced, i.e. not voluntary" (para. 125).
However, it continued
• "125.... The tenn '[orced' lS not Iimited to physical
• fcoerdon, such as that caused by fear of violence,
of power against such person or persons or anotheruse
• persoor by takinadvantagof a coerdve
• envîronmenThe essential elis that the
relevant persons had no real choice'. In other words,
• a civilian is involuntarily displaced if he is 'not faced
remain in the area'...as to whether to leave or to
•
••
119
• "126The Trial Chamber is of tin view that
• voluntary or not, it should look beyond formalîties to
• aIl the circumstances the person's
ÎntentAolack of-genuine choice may be înferred
• are calculated to deprive the civiIian population of
• -exercising its free wilt such as the shelling of civilian
commission of- or the threat te commit - other crimes
• flee the areao hope of retum' ...ion and make them
•
legal values protected and forcibleonhat among the
• home and commuand the right not to beto stay in his or her
deprived of his or her property by being forcibly
Chamber finds that the location to whîch the victim IS
prevented from effectiveIy exercising these right5."ctÎm i5
• (Citations omitted)
5 .2085lakthe Trial Chamber also rejectethat illegalnt
• deportation or transfer required relnoval to a particular destination:
•
• "677. The protected interests behînd the prohibition
individuals to be able to remain in their homes and
• whether from the same or another State. The Trial
• reuof forcibly reessentiuprooting,hat it i5 the
individuals from the territory and the environment in
• forecades and generatioflS, whichis the rationale for
• destination resulting from such a removal ...
1/681. ... Any forced of population
• involves "abaone's home, losing property
• andbeindisplacundeduresto another
••
• 120
• deportation serves to provide civilians with a legal
conflictthe uprooanddestrucofonvals in time of armed
• communities by -an aggressor or occupant of the
• StaCase No. IT-97-24-T,Trial Chamber Il, 31 july
• 2003.
5.209 In the words of the Trial Chamber in Simic, both deportation and forcible
• transfer are c10the concept of' ethnic c1eansing' (para. 133),
• acrime undercinternatiotheeffectsof wruch theSecurity
• 1993, para. 5, in which tReaffthat any taking or/S19 (1993),16April
acquisition of territory by threat or use of force, including through the
• practiethnie c1eansing',i5unlawful and unacceptable; and para. 7,in
• which"Reaffits condemnation of all viTlations of international
• reaffirms that those who conunit or order the commission ofsuch acts shall
be heldividualIy responsibie in respect of sueh acts..."
•
• The ri1food ..
• 5.210 Article 11of the International Covenant on Economie, Social and Cultural
Righls provides:
• "ArticŒ11
• 1.The States Parties to the present Covenant
• standof living for himself a1d rus familyquate
the continuous improvement ofliving conditions. Theo
• States Parties will takesteps to ensure the
• essential importance co-operationonalg to this effect the
• based on free consent..."
••
• 121
5.211 Article 27 of the Convention on the Rlghts of the Child provides:
•
• "Article 27
a standard of living adeqùate for the child's physical,o
• mental, spiritual, moral and social development..."
• 5.212 Article 55 of the Fourth Geneva Convention states that,
•
Occupying Power has the duty of ensuring the food
• and medisupp1~she populishould, În
• stores and other artreSQUlof thery foodstuffs, medical
occupied territory are inaqequate."
• Iit canna50theimust allow access for organizations
• (Articles 23 and 59 of the Fourth Geneva Convention).
•
5.213 The Special Rapporteur on the rlght to food, Jean Ziegler, found that,
• Territories, has the legal obligatito ensure thernatîonallawin the
• righto food of the civiliait is fato meethis
responsibMoreover, the" continued confiscation and destruction of
• Palestinlanand wateresoureamountto thegraduaI
• dispossesof the Palestinian people.the securitynizing
• needs of Israel, he considered that current security measures are "totally
hunger and malnuamong Palescivilians ... În a way that
• amounts to colIectîve punishment ..." Corrunission on Ruman Rights, 'The
• Right to Food', Report by the Special Rapporteur, Jean Ziegler, Addendum,
'Missiotothe OccupiePalestinTerritorUNs"doc.
• E/CN.4/2004Add.2, 31 October 2003, paras. 38-9.
•
• ------".,."
•
• 5 .214 T10food is violaled (1) by Ihe level of restrictions on freedom of
• movement; in addition, the inability to feed their families is leading to a
• 10of humaJi. dignity for Palestinians, olten heighlened by bullying and
• the Dugard Report: "AccQunts of rudeness, humîliation and brutality at
checkpoints are legion" (para. 17); internaI checkpoints "do not protect
• settlements which are already weIl protected by the IDF. Instead, internai
• population from travelling fratOWTheyge_ta village or town toîre
• must therefore be seen as a farm of collectiye punishment" (para. 19). (2)
• Bthe expropriation and confiscation of "vast swathes" agriculturalland
• restrictions on the pro('TheRight to Food', para.) by
20).
• 5 .215though the Occupying Power may take measures necessary for its own
• security, they must bproportional, and not prevent
• the Occupying Power from fulfilling its obligations. The construction of the
• waIl in no way relieve?its responsibilities.
• Livelihood
5 .2Art6 of the InCovenant on Economic, Social and Cultural
• Rights provides:
• "Article 6
• recognize the right to work; whîch indudes the right
• work which he freely choosesor accepts, and will take
• approprîate steps to safeguard this right ..."
•
•• 123
• 5.217 Article 52 of the FourthUAIrrneasuresntion provides
• airning atcreating unernployment or atrestricting the opportunities offered
• Occupying Power, are prohibited". them to work for the
• 5 .218 The actual process of construction of the wall has a direct impact upon
• local cornrnunities. The first update report, reviewing impact in the "11orth-
• Jenin Governorate, identified the intensification of external closure as the
• were mitigated by well-managed access points, "the virtual elimination of
• ernployment prospects for West Bank Palestinians from thi5 area in Israel
• significantly in 2002-Mission7para. 20;arian
Update 2, 31 July 2003, para. 21; World Bank Group, 'Twenty-Seven
• Assessment', April-June 2003.ie Crisis: An
• 5.219 The evidence gathered so far of the eeonomic impact of closures permits
• well-founded inferences to be drawn as to the actual and likely impact of
• the wall on, among others, per capita reaI income.
• Family and social rights
• 5 .220 Article 23 of the International Covenant on Civil and Political Rights
• provides as follows:
• "Article 23
• unit of society and is entitled to protection by society
and the State."
•
•
••
• 124
• 5 .221 Article 17 provides:
• "Article 17
interfwith bis prfamily, ormeto arbitrary or unIawful
• honour and reputation.cks on his
• 2. Everyone has the right to the protection of the Iaw
• against such înterference or attacks."
• 5.222 In relation to the impact of the construction of the waIl in Jerusalem, the
Second Update to thMission Report noted:
• "Existing sections of the Jerusalem area separation
• construction are located across the Green Line, and ints
• boundary. Asaconsequence, Palestinian families and
• times affecting members of the same village and/ or
schools, women frobstetrîc facîlities,.en from their
• communifrom their cA degree ofoyment
• alreaasaresuof barrconstruction.'"red
• September 2003, para. 8; as was noted in the Third
• HumanitaMissiReporUpdat3,. 30ed for social purposes"':
• Novernber 2003, para. 37.
Health and medical services
• 5.223 Article 12 of the International Covenant on Economie, Social and Cultural
• Righls reads:
•
•
••
• 125
• "Article 12
• the highest attainable standard ofphysical and mental
• health
• 5 .224 Article 24of the Convention on the Rights of the Child provides;
• "ATticle 24
• and to facilities for the treatment of iIlness andlth the
• ensure that no child is deprived of his or her right ofo
• access to such heaIth care services ..."
• 5 .closures and curfews have resulted in Palestinian heaIth facilities operating
• health services personneI "carmot reach the!r workpIace": Economie and
• Social CoundIbythe Economie and Social Commission
• occupatione living conditions of the Palestinian people in thehe Israeli
• occupied Palestinian terrÎtory, including Jerusalem, and of the Arab
• 12 June 2003,paras. 48, 49.5-Ej2003j21,', UN doc.
• Education
• 5.226 Article 13 of the International Covenant on Economic, Social and Cultural
• Rights reads;
•
•
••
• 126
• 1.rThe States Parties to the present Covenant
• agree that education shall be directed to the full
of its dignity, and shall strengthen the respect for
• further agree that education shan enable a11persans ta
• participate effectively in a free society, promote
• nations and a11racial; ethnie or religious groups, and
• maintenance of peace..."f the United Nations for the
5 .227 In its January 2004 Report on the impact of the Jerusalem barrier, the UN
• Relief and Works Agency anticipates "major problems of access of pupils
• and teachers" ta bath UNRW/strong deterioration
• UNRWA, Reports on the West Bank Barrier, 'Town Profile: Impact of theties":
• JerusaIem Barrier', January 2004
• Self-determination
• 5 .228 Article 1 of eacCovenants on Civil and Political
• self-determination in the following terms:ights recognize the right of
•
By virtue of that right they freely deterrnine their.
• social and cultural development.ue their economic,
• 2. AlIpeoples may, for their own ends, freely dispose
• prejudtoanyobligatarisoutofut
• principle of mutual benefIn, and internationallaw.e
• subsistence. people be deprived of its own means of
•• 127
• 3.The States Parties to the present Covenant,
• administof Non-Self-and -Trust
• of self-deand shaH rerigin thatof the !ight
• United Nations."the provisions of the Charter of the
• 5 .229 The overall impact of the walt taken together with othe! policies and
• practices of settlement and fragmentation described above, appears Iikely
to rithe destruction of the potential for a viable Palestinian State,
• wright of the Palestinian people to self-determination.
• (v) The occupying Stafe is not entitled in occupied ten'itory to constrnct a wall which
• seriously and disproportionally impairs the rights of the inhabitants of that
• territory to the effective ownership of tl1eirland and property
• 5 .230 The construction of the wall has two major impacts on the rights of the
• inhabitants of the occupied Palestinian terri tories induding in and around
First, the construction of the wall requires that a strip of land, on average
• sorne 50-70 metres wide, be taken away from its owners and put at the
• prevents the inhabitants of the area being able to attend to their properties
• which lie on the other side of the wall from that on which they reside.
• 5.231hese consequences fall to beassessed in the light of the Hague Regulations
• and the Fourth Geneva Convention, considered also with the generaI
• principles of international law governing the expropriation of property.
•
•
••
• 5 .232 Article 23(g)of the Hague Regulations makes it
•
• ene5property? uruess such destruction or seizuree the
• be imperatively demanded by the necessîtîes of war".
• 5 .233 If this mIe is applicable during the conduct of armed conflict, it will apply
• destruction ofproperty by the Israeli authorities, for the occupation has not
yet ended and inquestion appears in Chapter 2 of the
• Hague Regulations provides that" ...private property ...must be respected.
• Private property carmot be confiscated"; while Artide 56 requîres that the
• institutions be treated as prîvate property; even when it isState property.c
•
• 5 .234 Article 52 of the Hague Regulations provides further thaï,
• demanded from ...inhabitants except for the needs of
to the resources of the country ... Such requisitions
• commander of the locality occupied. Contributions in
• a receipt shall be given and the payment of theh; if not;
• amount due shalI be made as soon as possible".
• 5 .235 Article 53 of the Fourth Geneva Convention provides that,
• "Any destruction by the Occupying Power of reaI or
• collectiveIy to prîvate persons, or to the State, or to
organizis prohiexcept where suchsocial or cooperative
• operations" .5deemed absolutelynecessaryby military
•
••
• 129
• 5.2and appropriation of property, not justified by military necessity andion
• carried out unJawfulIy and Ugrave bThechnstitutes a
ICRCommentconfirms that the criterron of "absoluteIy necessary"
• appHes also to this article (p. 601).
• 5 .237 Notwithe dear content and purport of the applicable Tulesof
• internatithe Goverrunent of Israel has engaged and continues to
• property, both generaIly and in relation to the walL
• 5.2arnended existing legisIation and enacted new regulations to allow for the
• expropriation of property. In the case of land other that within oceupied
• Jerusalem, the Isrhave used military orders to effect
• authorities to eonfiscate the land of those absent during the 1967 census;
Militaryer Number allows the aunilattoally
• declare Palestinian land a 'closed military area', preventing alI but state
• use; and Military Order pennthe authtoities
• 'Report on the Economie and Social Repercussions of the Israeli Settlements
• on the Palestinian People in the PaIestinian Territory, includingJerusalem,
• oceupied since 1967, and on the Arab Population of the Syrian Golan
Report, Update 3, 30September 2003, paras. 51, 55. Hurnanltarian Mission
•
• 5 .Regarding Abandoned Property, which has been applied to the property
• of "absentees". Although theoreticaI1y the land is managed pending the
return of theowner, in practiee returns have been prevented by restrictions
•
••
• on freedom of rnovement. See Humanitarian Mission Report, Update 3, 30
• Novernber 2003, para. 54.
• The prorequisit~ning
•
• 5.2its accompanying zonithe West Bank is requisitionednstruction of the WaIl and
• under military orders signed by the local MiIitary Commander. These
December 2005, although they are renewable without limitation. During
• thi5 period, the owners of the property theoreticaIly remain the IegaI
• owners of the property and are entitled to request rentai fees or
• September 2003, paras. 50-60, Aru1exLeport, paras. 34-45; Update 2, 30
• 5.241 Owners have one week in which to fiIean objection, but the procedures are
• problemNotification of owners appears to be arbitrary, and the
• HumanitMission Report refers to "an absence of consistent, clear
para. 53. OCHA FieId Officers "Ononeed one instance in which,mber 2003,
• out of the twenty farmers appears to have received a miIitary confiscation
• which was not Report of OCHA field officers, OCHAto a map
• HumanitUpdate, Occupied Palestinian Territories, 1-15 December
• 2003.
• 5242 Obtaining the necessary documentation can be difficult, andfiling appeals
• impartial, and its can be reversed by the Militarys not independent or
• Commander. The number of rejected appeals 1Sestimated in the hundreds
and ail the very few cases submitted to the Israeli High Court have been
•
• ------------
•
131
• rejected. Basing themsef ves on earIier experîence Iandowners aIso fear that
• denial of access ta land will be used against them, under legîslation which
• property. See HMission Report; para. 45; Update 2, 30unused agrÎCultural
• September 2003, para. 42; Update 3, 30 November 2003, paras. 39-44.
• 5.243 Military orders provide that but nowners canrequestcompensation,
• formaI procedures have been esürcoversd; the compensation
property requisitioned or damaged for the construction of the Wall and the
• or inability ta cultivate are not entitled ta compensation. See Humanitarian
• Mission Report, Update 2, 30 September 2003, para. 43.
• 5.244 Notwitthe formaI contention by the Israeli Goverrunent that no
• change in ownership is effected by the requisition of land, the history of
• past practices, and the fact that a Iegal framework exîsts in the West Bank
• for requisitionfiscation of property; there is considerable concern
(Humanitarian Mission Report, Update 3,30 November 2003, para. 50). As
• the Special Rapporteur, Mr Dugard has noted: "what we are presently
• witnessing in the West Bank ls a visible and c1ear act of territorial
• annexation under the guise of security": Dugard Report, para. 8.
• Damage to property and environs
• 5.2Iiapparent frorn the phys5far constructed andall as
• upon the land through which it runs. The UN Secretary-General' s Report
• records that the wall will extend eventually for sorne 720_kilometres along
the West Bank with an average depth of 50-70 metres (paragraphs 6, 9).
•
•----------- ----
•
• 132
• 1111Sland will be rendered barren; even if the wall proves only to be
descriithe Secretary5Report) will ensure that that landg the wall (as
• rernains barren for many years tocome. Moreover, the consequences of the
• existence owiinevitably be (again as recorded in the Secretary
• Gener5Report) that reguIar access bto theircal inhabitants
fannlands will be seriously affected, with serious consequences for the
• infertilestate.those lands which will be very likely quickly to revert to an
•
• 5246 111€natural and acquired econornic advantages of this region have been
August 2002 physica! damage totaIling US$1l0 million was inflicted uponh
• Jeron, Tulkann, and Qalqiliya governorates. Globally, about 58 percent of
• this damage occurred to infrastructure, 23 percent to private property, and
• about 21percent toaand assets. See HumanitarÎan Mission
Report, Annex!, paras. 19, 22.
• 5.247 The UN Office for the Coordination of Humanitarian Affarrs has projected
• that,
• "More people, unable to reach their land to harvest
money to buy food, will be hungry. The damage the
• causbthe destruction of land and property for the
• Palestinability to ever rifther evenrnines
• UniteNatioOffice for the Coofdination
Projections', 9 November 2003.
•
• 5.248 The processof construction has had major and irnmediateeffects, induding
• the destrof agriculand and assets and water resources;
• •
• 133
• inaccessibîlity toand assets, induding water resources;
higher transaction costs; and uncertainty about the future and aconsequent
• dampening of investrnent in economic activities including agriculture. See
• Humanitarian Mission Report, para. 23.
• 5.249 Moreover, the land on which the Wall is being built,
•
Bank .. it is already seriollsly ai/ecting local access ta
• wwater use... Water access problems already observed
• result in a cdefacreducin theeted, and will
• Palestinians": Mission Report, paras.
29,30 and AImex lIL
• 5 .Iits June 2003 report, the Economic and Social Commission for Western
• Asia recalled that in November 2001,_~ad Committee against Torture
• concluded that Israeli policies of closure and house demolition may, in
• or punislunent, and called on IsrInoted,desist from the practice.ment
however, that the Israeli forces had "escalated their acts of forced eviction,
• seizure, demolition and closure of Pthestînîan structures throughout
• oceupied Palestinian territory in 2002 and 2003." See Economic and Social
• Western Asia on the economÎc anof the Israelîeussionsommission for
1. occupation on the living condipeople in thePalestinian
1 occupied Palestinian terrîtory, încluding Jerusalem, and of the Arab
• populaithe occupied Syrian Golan', UN doc. A/58/75-E/2003/21,
• equipmand invenphysical infrcultuheritage,luded family homes, buildings,
• Palestinian Authority assets, private and public cars, water, electricity
••
134
• generation facHities and grids, soIid waste disposal stations, and road
• networks: ibid., para. 23. On the IevelIing of Iand and destruction, see
• Humanitarian Mission Report, Annex l, paras. 1-23-I-24.
• 5.2international humanitarian Iaw and the regime applicable to occupation,
• but byreference to international standards protecting the rights and
• interests of property owners.
• 5.252 The responsibility of the and deniaI ofel for expropriation
• Palestinian territory. Although Isinel has at times stated that its actions
respect to property have resuIted in no change of ownership, in practice the
• normaI1y incidental to ownership.ightsl of aIl the proprietary
•
• 5.2standards governing liabwhether under generalon,red
• international law, or within specifie treaty regimes.
• Expropriation in generaI international Iaw
• 5 .254 Expininternatconnotes the deprivation of a person' s
• use and enjoymentfeither as the resuIt of a formaI act
• have that effect. Expropriation involves '''thedeprivation by State organs
• of a right of property either as such, or by permanent transfer of the power
• of management and control": BrownIie, PrinciplesofPublicInternationalLaw,
916-17: exptakes many fonns, incIuding "the imposition of
• extensive restrictions on an alien's effective control of property or on the
• exercise of the normal rights of oW,nership"; Christie/ British Year Bookof
• •
• 135
• S.D. Myers v. Canadn,"expropriation usualIy amounts to a lasting removal
• of the abiIity of an owner to make use of its economic rights": Partial
Award, 13 November 2000, para. 283.
• 5.255 According to the Iran-United Amocase,Iaims Tribunal in the
• expropriation is defined as "a compuIsory transfer of property rights":
• Award no. 3Juy198mocoInternationalFinanceCorporationv.
• defined in the DamesandMoorecase, "It]he unilateral taking of possession
of property and the deniai of its use to the rightful owners may amount to
• an expropriation": Award no. 97-54-3,20December1983, DamesandMoore
• v. The lslamie RepublT.R212,223. 4 lran-U.s. C.
• 5.256 Israel has suggested that there is no change of ownersrup of the land, that
• land, and that residents can petition the Supreme Court to haIt or alterhe
eO!15truction (SeeReport, UN doc.248, 240,
• November 2003, Armex 1, para. 8). The evidence does not support these
• suggestions. Land required for the building of the wall is requisitioned by
• Palestiniansrued access to the Palestinian land lying between the
• waand the Green Une if not in possession of the necessary permit or ID
i. card issued by the Israeli Defence forces, by contrast with the preferentiaI
eIigible to immigrate to Israel underthe Law ofRetum (Secretary-GeneraI' sse
• Report, paras. 19-22).tiruans with a permit or ID card are
• commonly derued access by reason of the limited operation ofaccess gates.
• 5 .257 The faet that there may have that IsraeliaI expropriation,
• administrative measures do not detaking'the taking of property as a
••
• 136
• or as involving achange ofownership does not mean that no expropriation
has taken place in the sense of international law. The Iran-United States
• Claims Tribunal has recognized that,
• possibIIity of the occurrence ofa deprivation or taking
• is not exItISweil settled in this Tribunal' s
international ithe absence of a formaIy
• interfered unreasonabIy with the use of property'."has
• KarubiaThGovernmothe IsIamiofRepublic
• 1982, Harza Enginw1ng Co. v. The Islamie Republie of
Ira1Iran-CT.499, 504.
• 5.258 A finding ofexbe made without any formaI rumulment or
• Interference in relation to the legal title to property. See Award no. 97-54-3,
• 20 DecembeDames and Moore v. The lslamic Republic of Iran, 4lran
U.CT.R. 212,223.Seealso Article 10(3)on), Harvard DraftConvention
• of property' includes not only an outright taking of property but also anyng
• such unreaInterference with the use, enjoyment or disposaI of
• property as to justify an Inference that the owner thereof will not be able to
use, enjoy, or dispose of the property within a reasonable period of lime'
• (50hn, &Baxter, R R, 'Responsibility of States for Injuries to the
• 553 (1961).terestAmerican Journal of lntemational Law 545,
•
5 .259 What is relevrult 15the effect and impact of the mea5ures taken, 50 that if
• useless, then they must be deemed Propertybeen expropriated.hey are rendered
• rights become 'uselessideprived of the effective use,
• conrroI benefitof the property. See Award no. 258-43-1,80ctober1986,
• •
137
• Dil Fields afTexas, Ine. v. The Governlran~of the Islamic Republic of
• lran-UCT.308,318;InterIocutory Award no. ITL32-24-1, 19December
1983, Starrett Housing Corporation v.4Iran-U.S.ic Republicoflran,
1. C.T.122,154;Award no. 220-371986,Foremost Tehmn, Ine.
v. Governmenthe Islamic Re10 Iran-US. C.T.R. 228, 248;
1. Awardno. 519-3August1991,MLynchCo.Iv. Govemment
of the Islamic Re2lran-UCT.R122, 148.
•
5.260 Defactoexpropriation may a150take many forms, as analogous findings in
• other fora have found when relying on international case-law; see, for
• examplThe Former King of Greece & Application no.e,
25701/94, European Court ofHuman Rights, Judgment, 28November 2002,
• paras. 75Elia5.r.l.Application no. 37710/97, the same Court
emphasized that, in the absence of transferTof property, "the Court must
• look behind the appearances and investigate the realities of the situation ...
• Greece,e Court took account ofde faexpropriationOthers v.
(occupation ofland by the Greek Navy since 1967), which had lasted more
• than twenty-five years at the relevant time. The Court held,
•
"...unlauifuof such a dispossession inevitably
• reparation owed by the respondent State, sinee the
• pecuniary conseof a lawful expropriation
dispossession ... thase of an unlawful
• ~'45.e Court conside105of aIl ability to
• failure of the att50far to remedy theogether with the
situation cornplained of, entaîled suffîciently serious
• expropriated în a manner incompatible with theirbeen
• fight to the peaceful enjoyment of their possessions"
paras. 36, 45; emphasis added in para. 36). p. 59,
•
• -----------_._ ..
•
• 5.261 In Loizidouv. Tthat //as a consequence of the fact that
• the applicant hasbeenrefusedacŒssto the land ..., she has effectively Iost aIl
• Loizidouv. Turkey, Application number 15318/89, ]udgment, 18 Decembererty":
• 1996, para. 63.
• -5.262 The injury to Palestinian propcivil'ights arises notmerely Ina purely
• context, such as the expropriation of property without compensation, but
in a context which is delictual; in particular, the context involve illegal
• and general internationallaw.ce in breach of the United Nations Charter
•
• 5.2expropriation was illegal because it violated a treaty provision; in the case
'. of Palestinian landlîIlegaI, among others, because it
• deterrnination unit', to property and territory_nduding a recognized 'seH
•
(vientitle it toexercise thal righta)constituting unnecessary and territory daes not
• disproportionate action iO'isuclt as accupied not its
• occupiedterritory ta protee! settlements which it has unlawjùlly iniroduced into
•
• 5 .construction of the wall involves conduct on the part of Israel within
• occupterriwhich coinvola violaof Israel's
• international obligations as an occupying State.
• 5 .2Certain special circumstances which might be argued to render Israel' s
and have been shown not to provide any lawful justification for theatement
•
••
• 139
• construction of the waIl. In addition, Israel has made known publicly that
• measure and a Iawfu5right of self-defence: seeall are a justifiable security
• 'paragraph 6 of Armex 1 to the UN Secietary-General' s Report of 24
argument in these proceedings 15as yet unknown, certain preliminary
• observations rnay nevertheIess be made.
5.266 States have a both as a matter of customary
• ArticIe 51 of the United Nations Charter. WhiIe these two aspects of the
• ionly the right of individual seIf-defence whichneeds to be considered.
•
• 5 .other provisions of the Charter: "Nothing in the present Charter shaHposed by
• speaking, therefore, Article 51 only cornes into play when there is sorne
• other provision of the Charter which, butfor Article 51,would prohibit the
• action being taken in self-defence.
• 5.2attack occurs against a Member of the United Nations".ituation: "if an armed
•
• 5 .self-defence under that Article: first, the right of self-defence is onlyt of
• maintain international peace and security", and second, "[m]easures taken
• by Memin the exercÎse of this right of self-defence shaH be
• immediately reported to the Security CounciI".
•
••
• 140
• 5.2Palestinian terrinand around Jiis douiffulconstruction of the wall in occupied
• Articlstrictohas any application. #armedhas veen no
attack" against Israel of the"kind contemplated in that Article; and in any
• wall as a measure taken by it in exercise of its right of self-defence.of the
•
• 5.271 That does not, however, exhaust the possible relevance of the right of self
• internatito be considered. The essential elements of that right areustomary
aIso indin the exercÎse of self-defence under Article 51, sinee that
• Article refers to the "inherent" rightof self-defence, thereby invokinga pre
• existing right outside the framework of the Charter.
• 5 .272 The Court has emphasised that the two essentiaI elements of the right of
• be lawful, be necessary, aMilitary and Paramilitaryhat right must, in order to
Activities in and against Nicaragua,ICj Reports1986, at p.94); Legalityof the
• Threator-UseofNuclear Weapons,ICj Reports1996 at p.245); CaseConceming
• Oil Platforms,ICj Reports2003, judgment of 6 November 2003). In that last
• case the Court said (at para 76):
• defence weIl settled: as the Court observed in itself
NuclWeapo'Thesubmîssion of the exerdse of theUse of
• proportiis a rule of customary internationalcessity and
• case conMilitary and Paramilitan} Activities in in the
• rule 'wheself-dewoulwarraonly to a specifie
• and neceto respto it' as 'a rule weIle armed attack
•
••
14I
• establin custointernlaw'. (ICJ
• Reports1986, p. 94, para. 176)."
• 5.273 In thatcase the Court held that the United States had failed to establish that
• its actions were éther necessary (at para 76) or proportionate (at para 77)-
• 5.274 Moreover, theOil Plcase thatthe
• "taken avinself-defence must have beenthat measures
• Ieaving no rQom for anyIi.e.sure of discretion"ive,
• on the part of the State taking the action]" (al para 73).
There is no reason to doubt that the sarne consideration applies to the
• requirement of proportionality.
• 5.275 Those "strict and objective tests need to be applied to the construction of
• cÎrcumstances concomitant with its construction. When that is done, the the
• construction of the wall is seen to be
• • neither necessary for the purposes of seIf-defence of the State of
• the Green Line and within Israel's territory, without extendingity of
• many kilobeyothat teand witcreating
• to the east of Israel's territory),r endosing large areas ofland far
•
• • the wall; is ita proportionate response to the dangers to which Israel
perceives itseIf to be subjeof thee Special Rapporteur
• 2003 (UN Doc. Esuggested that, even if allowance
•
••
• 142
• to violence,ade for some Israeli margin ofdîscretion in its response
•
Isr5response ti5disproporOnonate.vided in th.lsreport: ..
• the înterests of security that it assumes the charader
• of punîshment, humiliation and conquest." (para. 5). -
• 5.276 His report was written before inthOilrt delivered its Judgment
Pla~frsswhich rejected the relevance of the notion of a margin of
• discretion: in the light of the Court' sfinding in that case, the conclusions of
• the Special Rapporteur apply with even greater force.
• 5.277 Moreover, even if (whlch is denied) a wall of sorne kind (and even a wall
with the physicaI characterIstics of the wall now being constructed) were
• to be regarded as a necessary act of inlf-defence; its construction
• in territory which is outside the territory belonging to the State of Israel -
• i5unlawfu1.iîn principle (and subject to any appIicable IegaI
• requirements) free to takwiththe confines of itse
defence, a permanent (or even a semi-permanent) structure such as the wall
• in territory beyond Israel's boundar----l,s shown above (paragraphs
• the wiplaces extends many kil5boundaries: thatrael'
• degree ofencroachment into non- Israein terrîtory rend ers Israel's actions
• constructing and planning the waIl manifestly unlawfuI.
5.278 Associatedguments ofself-defence are somew hatsîmilar arguments
• which seek to justify the construction of the wall as an act of military
• no justification for the construction of the wall. They fail for much the same
• reasons as do arguments which invoke the right of self-defence: they are
• •
• 143
• neither necessary, nor are they a proportionate response. And ther" would
elevate the security of the5own 'home' territory (notjust
• its presence in the occupied terrîtory) to a position over and above the
41t humanitarrequiremeof the inhabîtants of the occupied territory,
which is the complete antithesis of the essential fearures of the regime of
tt military occupation.
tt 5 .279 5far as such arguments are nevertheless ta be considered, in modern
i humanitarian law exceptions such as military necessity are subject te strict
it_
4t above),ecessi1a strict and objective consideration, ând leaves no
measure of discretion te the State takîng the action in question. When
tt
generaI milioperatiohave ceasmilitarnecessimust
.t inevitabIy be less demanding.
5280 Considerations of necessity have to binregard to thecourse,
't particular wall which is being constructed, in the particular places where
1•• it is being constructed, and with the particular consequences which that
wall, in those places, involve. There can be no military necessity for the
.~ particular wall now being constructed in territory subject to the special
international regime of miliItis noteworthy that where a
•• similar wall isconstructed in the region of the Gaza Strip, the wall is
•• being built wholly5own territory: if itinthat wayne
e there, t1no 'necessîty' for it to be done differently in the occupied
West Bank territory.
• 5.281 Moreover, military necessity can onIy be invoked as an exception to the
• application of a rule of humanitarian law if the possibility of that exception
1Sitself written in to the formulation of the rule (such military-related
• express exceptions are, e.g., included in Articles 49, 53,55 and 143 of the
Fourth Geneva Convention): only in that way would an exception of
•
• •
• military necessÎty be conicornmon Article 1 ofulation
• the four 1949Geneva Conventions that respect for their provisions shall be
• ensured "in a11cÎrcumstances", since that expression leaves no room for
:. conunentary on the Genevap106-107, isclear onet,ed for. The authoritative
• this.
• 5 .282 The observaare made in respethat theims
construction of the waIl is a measure of self-defence against what are
• by military necessity inSown security. There is,Israel'st a measure dktated
• however, a furthto- be taken into account, and which
• of self-defence or military necessity.rding the wall as a legitirnate measure
•
• 5 .Israel has a need to defend itself from what it sees as wrongful incursions
• by the construction of a waIl of tandkind now being constructed
plaIUled, the configuration of the route to be folIowed by the wall gives the
• folIowing 25 shows, there is no need for a wall intended to defend. 6
• Israel from any such allegedly wrongfuI incursions to create enclaves
• as to emhrace large tracts of land many kilometres into the West Bank; or
• to Iun souparaIlel to th50as to form an extra
• being constructed along the westerUNareas of the West Bank. As the waUalread y
• Special Rapporteur of the Commission on Human Rights said in his Report
• of 8 September 2003
•
• •
• 145
ft "Israel's daim thadesigentirely as a
boundaries is simply not supported by the facts."ical
• (para. 16)
• 5 .2purported defence of Israel. They serve, and are c1early intended to serve,
• as a means of protecting Israel's settlements in the occupied Palestinian
territories including in and around East JerusaIem. The route of the wall in
relation to the location of the settlements shows this to be the case.
HoweveTs already shown, those settlements are uruawful: not only are
they U1llbut settlers are thernselves not beneficiaries of protection
under the Fourth GenevArticle 4 of which defines persons
protecbythe Convention as those who" find themselves, in case of ...
• occupation, in the hands of a ... Occupying Power of which they are not
present circuit is not), can be invoked in order to defend that
• wruch is un!awflecially where, as is the sihlation with these
'. settlemetheir estabinvolves a grave breach of the Fourth
Geneva Convenand a war crimethe 1998 Sof the
• International Criminal Court.
•
(viiplanning of the wall requirereparahon tobemade.a result of the construction and
•
• 5 .285 For the reasons set out above, the sequence of events which has led to the
planning and construction of the wall by Israel has involved the violation
• by Israel of a of the obliincumbeuponit under
• internationallaw.
5.286 In giving advisory opinions În other cases the Court has not refrained in
• appropricases from reaching as to the !aworlness
•
••
o 146
Consequfor Statesof the ContinuedPresenceof South Africain Namibia
• (SouthWest Africa),ICJ Reports1971, p. 17, the Court held South Africa's
continued presence in that territory to be ilIegaI (at paras 117-118, 133(1).
• 5 .Iwould be apprfor the Court to follow a simîlar course În the
• present proceediiimplicit in the formulation of the question
• advice te the General Assembly its assessment of the legality or otherwise
• of the coiquestion (Le. "thof the wall built by
IsraeL.etc."), for only in the light of such an assessment can the Court go
• on, as requested, to address the IegaI consequences arising from that
• unlawfcertain legal consequences folIow, and it is necessary that theel 1S
• Court should not fail to address thern. Even if, in an advisory opinion, the
• Court is not called upon to uphold ot disrniss specifie daims as to the
Court to address certain issues of principle which are raised bl' the for the
• possibility that violations of international law might have occurred, or
• could in future occur.
• 5 .288 There is no doubt tthe breach of an international
• obIigation carries with it the obligation to make adequate reparation.
• 5.289 Where the breaches ofinternational Iaw are not mereIy breaches accurring
inwhat may be termed a 'civil' contexof(such as the expropriation
• property without compensation) but accur in a context which is delictual,
• Charter and rules ohaving thechiuscothes,ed Nations
• natuothe reparationwineed to reflect this more serious
• basîs of Iiability.
••
• 147
5 .290 Moreover, where a breach of international law has been accompanied by
• a deliberate intention ta cause harm ta those affected, the normal rule that
• reparatiDruydue in respect of the normal and reasonably foreseeable
consequences of an unlawful act80as to cover alsa those
• deliberatintendeconsequenceThus, writiof exceptional
consequences intended by the author of an act, Professor Bin Cheng has
• observed:
"Ifintended by the author, such consequences are
regardeas consequences of the act for whieh
suchrconsequencarebnormalorireasonablye of whether
foreseeable ... [T]he dut Yto make reparation extends
the consequenof an unlawfact. These are regarded as
damages which would normally flow from such an
wrongdoer at the tîme would have foreseen as Iikely
to result, as weI! as aIl inte(Generalages."
• Frinciples of Law byInternational Courts and
Tribuna(1953; reprinted 1987), at pp. 252, 253).
• 5.291 The governingprof effective reparation may bmanyveneffectin
ways. Thus paragraph 1 of Article 31 of the Articles on State Responsibility
•
• adopted by the International Law Commission in 2001 and annexed to GA
Res. 56/83 of 12 December 2001 provides:
"The responsible State is under an obligation to make
full reparatforthe injurcausedby the
internationaHy wrongful act."
5 .292 Article 34 of those Articles provides:
IFullreparatifor the injury caby the
internationwrongful act shall take the form of
• restituticompensatiand satisfacteither
• singly incombinatioin accordance with the
• •
• 148
,e: provisions of this Chapter." (emphasis added in both
1. cases)
5.293 IChorzow Fcasein 1928 (PCI), Ser. A, No. 17), the Permanent
• Court of InterJustice, on an issue involving expropriation,
emphasized that reparation
• "mustas far possibwipeoualI the
• situation which would, in aIl probability, have existed
• if thaï act had not been cornrnitted". (at p.47).
5 .294 111eCourt went on to make it cIear that this could be achieved by way of
• restitin kind, or, if that is not of SUffi, "payment
• corresponding to the value which a restitution in kind would bear", or the
payment of da105sustained which would not be covered by
• restitukinThe Court in this case thus gave priority to restitution
• become that of paying the value of the property and compensation foration
• resulIOSMoreover, central to the Cwas the reasoning
distinbetweea lawfexpropriawhicrequirfair
• compensation, and the "seizure of property, rights and interests which
• could not be expeven against compthe act of
41 violated a treaty provision. The present advisory proceedings concern
conductof this latter kind, involvingacts which vioIate interaliarules of ius
41 cogens.
• 5 .2Commission' s Articles of State Responsibility provides:national Law
• act 1Sunder an obligation to make restitution, that is,
• to re-establish the situation which existed before the
• •
• 149
• extent that restitution:d, provided and to the
(al is not materially impossible;
• -(b)does not involve a burden out of ail proportion to
• compeI;1sation." restiinstead of
•
1• 5 .avaiIathe princof effective requirextensiveful act (restitution)
!. compensation. Against the background of the requirement that reparation
must be"fuI1" and thatthe injury forwhich reparation isduef/includesany
• damage, whether material or moral, caused by the intenmtlonalI ywrongfuI
• Responsibility provides: 31.2), Article 36 of the Articles on State
• wrongfuiunder an obligation tocompensate forIly
• nomadgood by restitution., insofar as such damage is
• 2. The compensation shaH cover any financially
• it 1Sestablished".ding 10ssof profitsinsofar as
• 5 .Faclcase, compensation rneansSUcorrespondingf arnational Justice in the
• to the value which a restitution in kind would bear" (at p. 47).
•
• 5.2of the international obligation which has been breached. But in princip!e
they includeatter capable of being evaluated in financial terms. This
• incIudpreenùnedeatorpersoninjucauseby the
• internatiwrongful act, as weIl as mental pain and anguish. The
• taking of rnovable or immovable property ISanother leading example of
• •
• 150
• direct taking of property, but oruy such an interference with property
rights as to render thein useless (including deprivation of the effective use,
• control and benefi-tsof property), that Interference is compensable as being
• tantamount to a taking: Tippetsv. TAMS-ATTA (1985) 6 Iran-US CTR 219,
property, loss of business profits, and loss or damage to a person's
• liveliThe al1-embracingof the possiblef
compensdamage is iIbythe terms of Article 31.2 of the
• ArticlS~tResponsibiIity which provide that the injury for which
• reparation is due
• "incIanydamagwhether mormoral,
State"(emphasis added).ct of a
• 5 .299 As the International Law Commission made clear În paragraph (5) of its
• Commentary to that Article, trus formulation was intended to cover "both
• material and moral damage brThe Commentaryod".
• continued:
"'Material' damage here refers to damage to property
is assessable in financdamagerms. "Moral"ationals which
1. 10of loved ones or personal affront associated withng,
an intrusi5home or private Iite.'
• 5 .300 Where conduct is found to have been iIlegat and particuIady where such
Nations,. the legaI consequences arising from that conduct must include
• thoseich follow for Members of the United Nations. A deterrnination
• ta the effect that a siruation is illegal cannat remain without consequence.
• In particular, Members of the United Nations are under an obligation to
••
• comply with binding decisÎons of competent organs, even if they voted
.. illega! siLegal Consequences for States of the Continuedion to bring that
• 117(quoted rThose obligations involve both positiveJ Reports1971, para
.. positive obligation the Hlegality of the situation in questionnder a
• recognition of the situation which has'been found to be illegaI. to imply
•
•
•
•
•
•
•
•
•
•
••
• VI.Summary ofJordan's Staternent
• 6.1For the reasons which have been set out in this written statement, Jordan
• beIieves that it would be appropriate for the Court to base its response to
the General Assembly's request for an advisory opinion on the-JoUowing
.. grounds .
6.2 First the Court has jurisdictionothe legaln advisory opinion
• qreasons why the Court should not exercise that jurisdiction.mpelling
•
6 .The Court 15invited to base its response to the Iegal question on which an
• recourse to force and the Tightofius cogens,mination are-rules ofbition on
• that the territory oibeing constis occupied
• terrfand that the ocsrights and powers in occupied
• notably those contained in the Hague Regulations and the Fourth Geneva
ConventAparticular limitation on the occupying State's rights and
• powers is the irnpermissibiIity of that State annexing or otherwise altering
• the status of occupied territory.
• 6.4 In the light of thand taking account of relevant Security
• CQuncil and General AsthCourt is invited toconclude
• Power, in theOccupied Palestiand around East inc1udinget the occupying
Jerusalem" entails the Iegal consequence that in severaI respects Israel is in
• breach of its internati50in particular, in respect of
• occupterritthe estabHin that occterriofry uruawful control of parts of that
• settlements which the wall is designed to protect, and the impainnent of
• 152
••
• their land and property. Those breaches are not justified by considerations
• a rnilitary necessity.regarding the wall as a security measure adopted as
• 6.of international law) cardes with it the further legal consequences thathes
.. the international community to recognize the situation which has given rise
• to those breaches.
•
•
•
•
•
•
•
•
••
• VIISubrnissions
• 7.1For the reasons set out above, Jordan (while reserving its fight to make
• further oral or written statemin the further appropriate
• should of the present proceedings) has the honour to submit that the Court
• (i)advisory opinion wruchyhas put to it, and that
• it should exercise that jurisdiction; and
• (iiconvey to the General AssopIrthat thevisory
• construof the waIl by Israel in the Occupied PaIestinian
• Territory iiand around East Jerusalern involves the
following legal consequences, narnely:
• (a) that the construction of that wall involves in severaI respects
• and is to that extent unIawfuI;ations under internationallaw,
•
• (b) territory being contraIsrael is underonallaw,
• obligation to demolish those50arts of the walI wruch it has
far constructed, to restore the land on which the wall has
• to consfurtsections of the worl plannedo discontinue its efforts
• contempbut as yet unbuiIt, and to refrain from any
• repetition of its iIlegaI acts;
• (c) that Israel is further under obligation to restore to the
• inhabiof the occupied territory such personal and
property 154hts as have been prejudiced by the construction
•
••
• of the walt and to compensate the înhabitants for any loss,
• andage or other the prejudice they have thereby suffered;
• (d)hat States Members of the United Nations are under
• or planned bacts in that connexion, to of the wall constructed
• Government of Israel implying recognition of the legality of,
.. or to Israel's Control over Palestinian territory enclosed byl,
• the wall.
•
•
• Ambassador of the Hashemite
• KiatTheHagueordan
• 30 January 2004
•
•
•
•
• \c-
•• :-
• . '.
•
Annex (1)
• v",'
• "'",1,":,.'
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• .....
• -..
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• -"",\<' ....
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• -,-1.: <",-,.;
• .,"(""
•
•
• .' '. ".".,'
•
•
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• "--,'
•
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•
•
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•
• ',',- •
ANNEXI
ORlGINS AND EARLY PHASES OF ISRAEL S POLICY OF EXFULSION
AND DISPLACEMENT OF P ALESTINIANS
• l. Politica! and historiea! background
Apart From the pe:riod of Ottoman Tule (1517-1917), Palestine was an Arab
1. popuJated reglon unti11948. In the last days of the First World War, when the
.. majorlty ofthe population was Arab, the Ottoman EmpiΠlost the territory of
Palestine ta British troops.
z. During the latter part of the 19'hcentury, the Ottoman Empire had permitted
• a small number ofJewish immigrants into the country. By 1918 their numbers
had risen to 56,000, out of a total population of 680,000.
• 3. Britain had conflicting aims or goals in the period 1915-1918, and thereafter
Hussain, the Emir of Mecca, thaï it would 'suppof the1eindependencesured Sherif
• Arabs in aIl the regions within theby the Sherif of MeC'ca:
Yethortly thereafter, the British Foreign Secretary, Mr Balfour, stated that
Britain favoured the esiPalestine of a 'homeland' for the Jewish
people, whkh wou Id not 'prejudice the civil and religious rights of existing
non-Jewish communities'.2
.. 4. Balfour's words were incinto the League of Nations Mandate for
on 29 September 1922. Arab protest against increased Jewish immigrationorce
(and the Balfour Decleruptein the 1920s. In 1936, the British
GovernmentPeel Commission recommthe partitiof Palestine
into Arab and Jewish States. This rewas accepted by the
Ziomsts as a basis for negotiatioGovernrnehnure~cted
..
British census figures _ thputs the number of Jews U",ing in
.. London. 1984 (hereinafter, Minorit)' Rights Group 1984).eport (MRG); The Palestinians, Report No 24,
Sel"United Nations, The Origms and Evolution uf the Paleslim.'Pro/:>le>l119.17-1988, New
York. 1990, (hereinafter UN, Origms), 8, for thiIso Cassese, A,the Balfour Declaration. Sel.'
there cited.Ultwn ofPeoples· A Legal Reapprllisal, Cambridge University Press, 1995, 232-3 and sources
Mandale for PTedUN, Ongms.1990, 48.
AvjSc"hlaim. TheInm Wall- W.W. Norton & Company, 2000, 19.
•
••
• 2
• by PalesleadeTsS~hlaim has expJained why the then Chairman of
the JewAgencyExecutDaviBenGurjoacceptthe Peel
• CommAlthough Ben Gurian accepted partition, he did not
• view the bord ers of the Pplan asmission
a Jewish state in part of Palestine and hoping to expand
• 5. In a letter to his son Amos on 5 October 1937, Ben Gurian wrote: '1am certain
we will be abliaIl other parts of the country, whether thTOUgh
• Erect a Jewish state at once, even ifTeswillnot in the whole land. The
• come in the course of time.'7
6. In 1939, the Britispublisa 'Whi.te Paper'aproposing
• with future numbers to be decided in co-operation with the Arabs. After the
• issue of White Paper and as a result pressure,sed immigration
hoshlities erupted again. During the first part of the Second Wo.rld War, a
• but because of the increased voluminto Palestine,rationBritish security forces,
• conflict continued between Palestinian Arabs and Jews. Soon, however, two
systematiattacking British security forces and Palestinian civiIians in began
• retaliation for, amongst other things, the 1939 'White Paper'. The relationship
of these groups to the Haganah (the 'official' military forces of the emergent
• Second World War pand moved ta its conclusion, immigrationraphs
• pressure increased once as a resuIt of the Holocaust and
7 political deveJopments in Europe.
• power for Palestine. However, faced with an apparently inesoluble conflict,
• in1947 Britain that a special session of the General Assembly
prepare a study on the question of Pat its nexta be deliberated
•
• See Minority Rights Group 1984, 3 and n.12.
Avi Schlalffi, The Iron Wllll, 21.
• For the 'White Parer', see UN, Origins, 53_ Pittsburgh Press, n.d.
•
••
• 3
• session. Forffied in April ofthat year, the United Nations Special Commission
for Palestine (UNSCOP) completed its work on 31 August 1947. Co-operation
• with the Commwas uneven, with the Jewigenerallysations
the natural rights ofArabs were self-evident and should beate
• recognized, not investigated.
• 8. The Commission' s report contained a for partitionmmendation
authority of the UnThe Partition Plan recommended that fifty administrative
• four per cent of the land area of the former Palestine be allocated ta the
proposed Jewish State and the rest to the proposed Arab State, despite the fact
and that Arab lands accounted for over 80Thef the land area of IsraeL
Jewish Agency accepted the Plan, but the Arabs did not and they protested
that it violated the provisions of the United Nations Charter, which granted
• 9. On 29 Novem1947, the GeneraladoptResolut181(11)
• Whlc:h, with sorne slendorsthe Cornmissmajority
recommendafor the adoption and of the 'Plan of Partition
• several parts of Palestby rîsing death tolls. Such was thece broke out in
intraetable nature of the confliet that when the British withdrew in May 1948,
• the fiTst Arab-Israeli war began .
• 10. en"lergent Israeli SOV€most of the terrîtory of the former
Mandate Palestine with the exception of the areas knawn as the West Bank
• and the Gaza Strip, which were respectively under the control of Jordan and
• UN, DeparPublic Information, The United Nationsand tlle Ql.IEEfionafPalestine,
New York, 19.4, 3.
• United Nations, General Assembly Official Records (UNGAOR), 2"" Session, supplement 11, UN doc.
AJ353, Volsi-iv.
• See Minority Rights Group 1984, 6.
• Clarendon Press, Oxford, 1998.PuiesHnùm Refugees in International Law, Oxford:
" UNGA res. 181{IIwith 33 votes in fa(includinggainst,
• Information, above noIe 7, 5.YemSee UN, Depof Publicns.
•
••
• 4
•
but no accurate figure An estimated 750,000 Palestiniansfledted Jewish deaths,
• andf o.re forced to leave weIeexpelledWeTliviin
refugee camps in the Gaza Strip, the West Bank, Jordan, Lebanon and Syria.
•
The Emergence of the State of Israel
• l1. The political goal of a State ta be called Inotel was continuously supported
• only in the rhetoric of the Zionist movement but a150in military preparations
12 The rnost well-mil1tary organis the Haganah, which wasg ofthe State of Israel.
• foundein1920 and opeuntil 1948. Ora loose netofrk
'defence' groups, ilts membersin the late 1920s, initiated·
• mllitary and officers' training, establisweaponss depots, imported
13. In the period 1936-39, the Haganah evolved from militia to military body, and
• was actidurinthe disturbof this persupportillegal
• immigratand ann-British demonstrations.
14. for the Haganah, and in 1939 it was deto appoiatpoint a nationwide
• professiMilitaGeneraStaff. F1941 onwarthe Haganah
emphasiits national and Zionit identified its basic principles
• to include respto the World Zionist and its funcnons
• in the 'Land of Israel', and resisting 'enIn thision' from outside.terprise
period, it stated that it serveISthe Jewish communitythat
• in Palestine, especially the Zionists), and saw itself as 'absolved' from the laws
of the non-Jewish g(i.e. the British Mandatory authorities).
• 15. BritiwarheffoanddsupplievoluntefortheBritisarroy_d
• Simultaneoit strengtifs own base, setting up the Palmach - or
'strike force', an of Pelugot HaMachalz - in 1941. One of the
• and appointed Deputy Prime Mirrister and Minister of Education and Culture68),
after the 1969 ·General Election. The so-called 'Allon Plan' was an unofficial
•
.. See Minority Rights Group 1984, 4
• " Ibid.
•
• •
• 5
• plan for a solution to Israel's border problems after the 1967 War; it proposed
1. new border lines ta combine 'maximum security ... with a minimum of Arab
populat.16'
16. yîtzhak Rabin was another member of the Palmach, and took part in armed
• appointed Deputy Cin 1947 and comthe 'Harel Brigade'm 1944 onwards. He was
• in the 1waTAriel Sharon was a1soa member of the Haganah, which he
joined at the age of fourteen an infantry company in
• occupation, depand destruction of, among athers, the Palestinian
coastal vîllage of Tantura on 22-23 May 1948, dming which large numbers of
• civiliansreported to have been killed.
• 17. anti-Britîsh struggle, in associahon wîth terrorist groups such as lrgull Zevai
Le'umi and Lohamei Herut Yisrael.
• 18. The Irgun Zevai Le'umi was an armed Jorganizationround
founded in 1931 bya group of Haganah commanders who had quît in protest
• haH of its member5ta the Haganah.IrgUZevai Le'umi,up itself split, with
known by its abbEtuwas ideologically Iinked to the 'Revisionist
• Zionist Moveand accepthe authoof its leVladimir
• 2ioni5t5 and the Mizrachi.ed support from factions of the right-wing General
19. Thergun rejected the 'restraint' poliey ofthe Haganah, and adopted a policy
• ofntimidation and terror againstand, after the British
• called at the outbreak of the Second World War, leading ta another split and
the e:nergencLohamHautYisrFrom 194Irgwas Jed by
• Menachem Begin (later ta be Prime Minîster in Israel ITom 1977-1984), and
includgovernmeoffices and policItjointhe Jewishsh administration,
• Resistance Movement and when thin Aug1946Irgund
•
•
• CTheBookof theP2, 286.vot.
•
••
•
6
• continued its terrorist activities aIrgutheLeand thesh. The
Palmawere responsible, in various degreestDeir Yassin.sacre a
• 20. LohnmeiHem! YiQrLehits acronym, was an undorganization
which operated from 1940 to 1948. Also known as the 'Stern Gang' (and as
• 'EtzinIsrael'), from its leader, Abraham 'Yair'Stern, it broke away from the
Irgun in 1940. The reasons for the splIt were the group's insistence that the
• armed struggle against the British should be C'othenued, notvvithstanding
.war ,'vithNazi Germany, its opposition to service with the British aTmy, and
• British GovernmHs objectiindudedamongtothers, a 'Hebrewthe
kingdom from the Euphrates to the Nile'.
• 21. After Stern was killed in February 1942, the new leaders of the group (Natan
Yellin-Mor, Yitshak Shamir and Yisrael Ethe movement.ized
• Because of its relatively lLehengaged in full-scale terrorism,
including the assainCairo on 6 November 1944 of Lord Moyne, the
• British Minister for MiddleLehwas briefly a part of the Jewish
fol1owing the hgull bombiKingDavid HotLehcontinueits when this brokeup
• terrorcampaignparticulin}erusaJin1947, where it sought to
prevent Implemenof the partition plan and the intofationalizanon
• the city.
• 22. On 14 May 1948 the indepeState of Israel was prby aimed
ProvisionalCouneil. Itwas recognized immediately by the USA, but only
• grad uan)' by States, with Arab States in withholding
recogninon for many years (and sorne stillto this day) .gnition
•• a permaneGovemmentwas establifollowing elections held in that May 1949,and
year.
• 23. On 26 May 1948, the ProvGovernmenof Israel transthened
Haganah into the regular armed forces, knLeYisrael- theganah
• Israel Defence Force. Irgun offered to dis band and to integrate its members
into the Israeli Defence Force, and thls ,<vasacLehied in September 1948.
• active in Jerusalem, however, and its members are considered responsible for
•
www_arigacom/peacewatchjdy.A!so,Uof IndepenVol. IV' Out of Crisis
• CameDecisiZmora BilaTeI·Av1991255-76trans!byeAmi Isseroff:
www.arig1peacew a1umilst.hhn.
•
• •
1•
7
• the murdof Count Folke Bernadotte, Nations Mediator, in
Jerusalem on 17September 1948. AlthoLchwere sentencedf
• to long jail terms by an Israeli military court, they were released in a general
amnesty.
• 24. expulsion of the Palestinian population were subsequently incorporated into
• the official organs of the State of IsraeV and the actions of those units were
subsequenadopted by the State of Israel, in tby these understood
• International Court of Justice ii1979.Hostages Case
• 2. Causes of the expulsions
2.1 The 1947-1949 Corulict
•
25. The reasons behind the exhave been dispIsrael's official
• position bas been thatthe Arabs fled voluntarily, not as a result of compulsion,
coercion or threat on the part of the lsraelis, but because of the combination of
• Arab institutions with tof the Arab eCount Bernadotte,fety and the collapse of
United Nations Mediator for PalestineiSeptember 1948:rently
• 'the exodus of Palestinian Arabs resulted from panic created by fighting in
•
•
,~ OffiCiaI Israepublic<ltiollS expheitly recognize the c:ontinUl!y be","'een
• the State:th€ €stablof the 5tate of Isrof ar)ewlsh defenceng: of the 5tale of Israel and the org<l[l5of
leadership of the Jewlsh national institutIOnkhi_<lnd theed defense groups, name!}' the
• was dedthe new, legalwould de1establish a Single, unified armed force loyal
10theGovernmentoftheStateof IsraeThe IsraeDefencForces';
• http-f jwwenglishjjhistory .stm.
• 3, 34-6. The Court, after taking note of vanous statements and aets by the rr<lnian authorities, stated as
the deeision them, translated continuing occupation of the Embassy and detention of theand
• agents of the Irani<ln State for whose <respons(ParagraphseH was int€rnationallytages, had now become
74).
• ". State of IsraeL 'The RefugPaper', GovPress Office,
Oçt. 1994. 3.
•
•
••
• 8
• their communities, by rumours conceming real or alleged acts of terrorism, or
expulsion'.21
• 26.Tlsraelî hîstorian Benny Morris in his 1987 study, The BÎl"tlIof the Palestinian
• Refugee Problem, 1947-1949, which was based on thethen recentdeclassincation
and opening of most Israeli state and priThee politicaJ papers from 1947
• villin1947, and became a steady though still small-scale emigration over
• the peDecemb1947- March 1948 with of many of the
country's elite, especiaIlyThis wave is estimated in the
• Emigration turned mto a masAccording to Morris:al
Jewish pressure on the Arab villages of the Coastal
• Jerusalem and the Jewish Corridor, Tiberias, Haifa, the
• Beisan and Safad sent sorne 200,000-300,000 urban andons,
sUITounding Arab States (Lebanon, Syria, Egypt, and
• Transjordan) and 14e Arab population centres of Gaza,
• 27. In generaL the displacements were a direct response to attacks and retaliatory
strikes by the 2ionls! sfo2ce (the Haganah, see above,
• 28. Reference shouliparticular, to theD,the objective
of which was ta secure aIl areas allocated to Israel under the UN partition
• resolution, as weil as Jewish settlements outside these areas and corridors
• leadAlthough the wording of Plan D was vague, its objective
potenthostile· Arab and Ln this sensery or hostile and
• providadwarranfoexpelliciviliBys.
•
UN doc. A/648, 14_Report of the UN Mediator for Palestine', UNGAOR, 3,dsession, Supp. 11,
• n Benny MThBirth of the Palestinùm Refrgee ProbIem, 1947-1949, Cambridge;
• Cambridge UniversIty Press, 1987 (hereinafter, Morris, Blrth of the PalestÎnian Reft'gu PrabJem).
See Minority Rights Group 1984, 4_
• " See Morris, Birth of the Palest-inianRefugee Problem, 254.
Ibid.
•
• •
• 9
• implementPlan D in April and May (1948) the
Haganah thus dire2tlyta-the Birth of the
• 29. The above indicates clearly that there was a poliey of expulsion. Benny Morris
• writes:
Palestine' s Arabs: iplan with mîlîtaryr the expulsion of
• cahue of Arab citdestructof vilitges,
bath perm21ted and justified the forcible expulsion of
• 30. In January 1948, the Zionist forcexpulsion of Arabized
• communities,28 and the potential boost which this displacement represented
to the goal of'Eretz IsraeL. without Arabs' was not Jost on Israel's leaders. On
1• Department, noted ia tendency among our neighbours ...to leave's Lands
their vî1Infact, however, anto Israelî daims that Arab
• Leaders urged the to flee for their OWn safetyr Benny Morris
• population to remain in their towns and vi11ages. This 'tendency' to leave, or
rather, the pressure to leave, was ipart by Weitzxpanded
• himself, who was responsible for the land acquisition and, in great measure,
• of early 1948 enabled the yishuv,iPalestine, ta taketyns of war
physical possession of these tracts of land.
• 31. Benny Morris imther obstracof an expu31ion poliey on bath
between 8-10 April, orders HaganaGeneral Staff to the of Apri11948. Sometirne
•
•
" Avi Schlaim, The Iron Walt 31
• Morris, Birth afthe Palcstinian Rejugee PrabIcm, 62-3.
Committee, statement by Calili, 5Feb. 1948). Mapam (United Workers' Party), a socialist-zionis! party,
• from 1969-1984, rin 1988, and returned 10 Labour in 1992.f the State. Mapam joined the labour alignment
• " Ibid.
Ibid.
• ,. IbId., 64.
•
•
i.•
•
JO
• Haganunits involved ta ifnecessary, expel most of the
• 32. According ta historian and reHagaandPalmach Yitzhaqi,
troops carried out dozens of operations agaînst Palestinians by raiding their
• operations, many old people, wamen and chîldren were ki!1ed wherevertherese
• was resistance.,.'12
33. 49, and many more srnaller ones. 'Major massaCres' are described as involving
• an assault by Zionist troops resulting in more than fifty victims. Among those
• whicher 250unarmed villagers weremurdLydda33 the expuJsionsfrom
anRamon 12-13 July 1948, in which over 60,000 Palestinians were expelled
• hom the two towns in an operation approved by Ben-Gurion and carried out
• Dayaand the massacre atAl-Dawayma, an unarmed village captured on 29oshe
Oetober 1948, in whieh 80-100 villagers were killed after the capture.
• 34. 'British wifreed our hands' to resolve Ine Arab question.
• Jerusa!em on 15 Haganloudspevans urged the Arab
bloodbath', they proclaimed. 'Surrender to us with your arms. No harm willis
• come ta you. If you stay, you invite ditaster'. 'The Jericho road leads
• Haganah offieer Uri Avnery, who would later become a member of Israe]'sved
parliament.
•
•
Yediot Aharanol; S. Hadawi, Pules/me Righls and Losses;1'11948:A CumpTehmswe Study, London: Saqi
• Books, 198B.
• Sel"above, n17.graph 19,
and were defended by small contingenton 9-10 July, asgion. These were withdrawnrtition plan,
• Memoirs, University of California Press, 1996, 383-4.ress approval of Ben-Gurion. The RC/bintiai civilian
• J Quigley,Palestinian Question in InternatJonal Law A H!stoncnl Perspecnve',
10 ATUbSludies QURrterly 44. 82 (1988).
•
••
• Il
• 35. The Palestwere 'ejected and forced ta flee.36to Arab territory'
'WhereveIsraeli \roops advanced the Arab population
• fîre a few shots in the direction of Arabwhollages ta see the inhabitants,
• had not fought fortake flight'.37
36. Massacres of Arab populations continued even after the 1947-1949expulsions.
• thNegevBedin thep1949-195'AzazmeTmassacre in Marchwar include the expulsion
• 1955; and the massacre at Kafr Qassim, an Israelî Arab \lillage in the little
b"iangle bthe West Bank on 29 October 1956.
• 3. Policy and practice post-flight andf or expulsion: Preventing
return of the refugees
•
• 37. SE'ns a great triumph for Zionism, tl1e Jewish Agency and other Jewishe was
organîzaand within therr overal! political aÎlns.
•
• 3.1 The evidof histintent
38. l15not seriouslthat the poliey of conquestofnd/ or possession
• Palestinian38ands has long historical roots, and that it did not begin with the
39 Wrîtîng in 1885, Theodor Herzl, the founder of political ZlOnism, though
• publidy promoting a future Jewish country in wruch Arabs and Jews would
• removaV equals, indicated privaof exproprandionment
• Ibld.82-3.
• " Ibid., quoting Uri Averny,ila paix', LeMonde, 9 Mayacle
1964,2
• of the lsrae1i-ArabConflict5, Sifriat Po'alim, Haifa University Press, 1985, 38-9.he Begmmngs
• ." 'We must expropriate gently the prito us. Weperty on the estates assigned
stransit countriIany empliour own country" diary entry for 12 June 1895;
• sPress <lnd T Yoseloff, 1960, 88-9. See aise the Vlews of another (ounder of political Zionism, Isra".l
ZangwîU, cited in VariOTI5places, inc1uding Flapan, 5., Ziollism and the Paleslinians. 56, Gomy, ZÎOI1Îsm
•
• -------, ..".
• 12
• 40. The same views were maîntaîned through the twentieth century. Thus, Moshe
Sharett, Ben-Gurion's chief deputy, Israel's fust Foreign Minister and later
• Prime Minister, wrote from Istanbul ta friends in Tel Aviv on 12 February
1914 that, despitestaries that Arabs and Jews might live together
• in p'we must not be deluded by such illusive hopes ... for if
• we cease ta loOUTland, the Land of Israel, as
content and mwilbe lost enterprise.,40o our esta te, aU
• 41. 'Transfer', 'force',and' expulsion', appear repeatedly in the writing of Zionîst
Revisionist Zionist party and ideologue bath of Irgun (sel" abovf', paragraph
• 18), and of the Likud Party, 'The Islamicof Eretzst be broomed·out
Yisrael'.41 Menahem chairman of the ]ewish National Fund and
• continuoraise the demand that our to our possession ...t
• H there are other there, they must beto sorne other
place. We must take over the land. We have a greater and nobler Ideal than
• 42. David Ben-Gurion, leader of the and head of the MAPI
party during the 19305, favoured various forms of 'transfer' at various times.
• In June 1938, he wrote:
• Arab States the mattertransferArabilyhe nejghbouring
tenant farmers, workers and fellahin from the ]ewish
• 5tatora special comwlU purchlands inethe Jewish
• workers and fellahin':3reof aU those
43. Three years later, in 1941, he wrote:
•
belore the First WorlShivat Tzion,(1955-56), 206-7; Nur Masalka,in the Policy of the Zionist Executive
• o.cInstitute for Palestinian Studies, 1992.of'Transfer' in Zionisl Politiea1Thought, 1882-1948', Washington,
• '" Quoled in Haarelz, Friday Supplement, 1 Dec. 1995.
" Cited in Ya'acov Shavit, 'The Attitude of Zionist RevisioIÙSm towards the Arabs', in
• Z!Onad IllQl!fsHebrew, 74.
DMr Hayom, Jerusalem, 28 April 1930.
• no. 51, Central 2100i51Archives, vol. 28, ]erusalem.eting, 7June 1938,Jerusalem, confîdentiaL
•
• •
~.
J3
• 'Wehave to examine, first, ifthis transfer 1Spractical and
secondly, if ii is necessary. It is impossible to imagine
• general evacuwithoucompulsioand brutal
a populatby force was demonstwhendthearge-scale transfer of
• Greeks and the Turks were (after the First
World War]. In the present warWarlthed World
• sympathy as a practical and the mûst secure means of
solvinghe dangerous and painful problem of national
• mof mal1y people in eastern and southern Europe, and int
the planfor post-wsettlementhe ideof a
• large-scale poputransfe! in central, eastern, and
plac:4rEurope increasoccupies a respectable
44. Yosef Weitz, who was to become head of the Isrofficialernment's
Transfer Comm,ittee in 1948 and Director of the Jewish National Fund's
• Seulement Deparnoted the follihis diai1940:
roomnfor bothepeoplelnethîscountry.Nore is no
• "developmenwill bring us closer to our airn to be an
independepeople in this small After the
us;with the Arabs staying the country will rernainfor
narrowand restricteThere1S no roornfor
compromise on tbis point... land purchasîng ... will not
Arabs fromre to neighbcountries, all of them,transfer the
• exceptperhapsBethlehemNazarethand Old
left.nd the tranmust be done throtheiringle tribe must be
• absorption in Iraq and Syria and even in Transjordan.
For that goal, mwilbe found - even a lot of
• millions of Jews ... There is .45other solution' absorb
45. Iis a1so clear that what might have been described as political or idealistic
• rhetorîcinfact translated into military policy on the ground:
defence; during the assault we mwîth aspondressive
• decisive blow: thection of the [Arab] place or the
• ..
David Ben-Gurion, 'Unes for Zionist Pollcy', 15 Oct. 1941.
• ]erusasee also entries for 20 Feb.1948, 17 ]ul. 1941, ibid. l204.tral Zionist Archives,
•
••
• 14
• expulsof the residents along with the seizure of the
plac.46
• The intenta expel: From words ta actions - 1948 and after
3.2
• 46. It is c1ear from the evidence thatpopulatwere of Palestinian
• intentioundertakand that they were notby military
goverruinwaiting and the Israeli State after 14 May 1948.evels of the Israeli
• 47. In a Memoradated 10 May 1948, Aharon Cohen wrote:
being done out of certain political objectives and not.
• only out of military necessities ...Infact, the "transier" of
being implemented ... the evout ofon/clearing
• ArabvillaisDot alwadoneoutof military
• always done because there aforcts suffîcÎent
48. Theze politicalobjectives appearin the statofents
• those responsibJe for the developmofZionist and laterion
Israel poliey. In the words of David Ben-Gurion agam, in April 1948:
• the waT, papulate upper and lower, eastern and westernng
• Calilee, the Negev and Jerusalem area ... 1 beueve that
distribof the Arab population'.48ange
• 49. Moshe Sharett, Foreign Minîster of Iswas similarly8 onwards,
• insi'As for the future, we are equally determined ... ta
explore aIl possibilities of getting rid, once and for a11,of
• What can be ainthis periad of storm and stress
A group of people from among our senior officers [i.e.,d.
•
•
The Birth of Israel: Myths and Reality, New York: Pantheon Books; London, Croom Helm, 1987, 90.
• Aharon Cohen, MemoranduIl:1, 'Our Arab Poliey During the War', 10 May 1948, in
Giva'at Havîva, Hashomer Hatza'ir Archives, 10_1095 (4).
• Bc/llJahem Ylsrael [As Israel FOiIght],Tel Aviv: Mapai Press, 1952, 86-7.
•
• >,
•
•
15
• the TransferCohas already started working on
50.As the Palestînîan population was forcibly rernoved, special measures were
• considered necessary in order ta preserve this new status quo. During March
• mainly focused on measures to ensure that there could and would be no
return.
• 51.The firs1 unofficialTracomposed of WDanin and
of the Foreign Ministry - came inta being at the end of May, following Danin's
• agreemeto corne in on the scheme in mid-May and the Foreign Minister's
• (Moshe Sharett) unoŒcial sanction of the Commîttee's existence and goals on
Arab houses, 'settle Jews in aand exproArabtecuated',ey should clesuoy
• property.53
• 52. signed by himself, Danin and Sasson, and entitled, 'Retroactive Transfer, A
Scheme for the Solution of in the State of Israel'. The
• memorandstated that the war had brought about 'the uprooting of maSSes
• IsraeL. This process may continue as the war continues and [the Israeli army]
advances'. The war and th50deepenArab enmîty 'as
• perhapto make pothe existence of of thousofds
by Je5that there will be in it very few non-Jews, and that 'the uprooting
• of the Arabs should be seen as a solution ta the Arab question in the State of
• cakulaplan geared towards the goal of 'retroactÎve transfer'.ding ta a
•
• ., Moshe Sharett to Chaim Weizmann, President of the Provisional Coum:il of the State
of Israel, 18iBenny Morris, TheBlr/hofthe Palestinîan Rcjugee Prou/cm, 1947-49, 149·50.
• See Morris, Birtl! of the Pa!estinllln Refuge/'problem, 254.
• Prob30.,nin was a senior Intelligence ServiRefugeecer. Morris, Birth of the Pa!estil1ian
Weitz Diary A246jI3, entry for 28 May 1948, 2403.
• Ibid.
•
••
• 16
• 53. Ta consolidate and amplify the transfer, the Committee proposed that action
be taken to prevent the Arto their places of ongin, and ta
• return, the Committee further proposed the destruction of villages as much as
• possible during military opeof any cultivation of land,
includreaping and haof crops, pickin50on, alsond
• villa50that no 'vacuum' was created; legislation ta prohibît retum; andand
propagata dîscourage remrn.
• 54. the renovation of other sites for Jewish settlement, negotiate the purchase of
• ArablandprepaJegislaforexpropriaandnegotithe
resettlement ofthe Arabs in Arab countries. According to Weitz, Ben-Gurion
• of organized destruction of the Arab villages, about which Weitz informed
• him. Using his Jewish National and network of land
motion the levellîng of Arab viJIages. Hitoagents toured the countryside
• determine whîch vîllages and which should bepreserved
• as suitable for Jewish sett!ement.
55. revieIsraeli policy On the issue of rerby thehich was attendedeting to
• country's senior political1eaders and senior political and Arab affairs officiaIs.
According to one official who was present, 'The view of the participants was
• refugees was shared by aIl'. Renewed orders went out to aIl IDF units tof the
prevent the retur? of refugees.
56. ofovernment over the following months, as successive comm unities ofexiles levels
•
•
Ibid., 136.
• .<0 However, Ben-Gurion ùloughl thal the Yishuv should firsllake care of the destruction
about plans for the of the iArab countries.lements and prevent Arab cullivation and only later worry
• Morris, Bzrl/! of the Pakstinian Refugee Problcm, 137.
• Ibid.,148-9.
•
••
• 17
• asked to be alloIn Janu1949, the Israeli Cabinet voted 'to
encourintroduolim (new Jewish iinto ail abandoned
• 57. ArchivaI evidence confirms the impact efpoliey at ground leve!. In April 1949,
forexamiregard to villages which had come under Israeli rule as a result
• of the Armistice Agreement with Jordan weTepriI 1949) and whîch
• ta diseuss whether theshould be allowed ta remain.';o Later
the same mon th, FShare~tindaamedg of the MAPAI
• Ihembers of the Knesset that, 'the inint~restss ta get rid of them. The
• 58 The right ta return has been consîstentlylnejected by IsraeLi representahves
the Knesset (Moshe Sharett, 15 June 1949), the UN General Assernbly (Abba
• Eban, 17 No1958; Tekoah, 13 December 1972), and the UN Special
59.The official Israeli position on the origins of the Palestinian refugee problem
• (abave, pa24) thus fails ta accord with the historical record set out by
• Benny Morris and other Israeli scholar62 such as Avi Schlaim and Ban Pappe,
who recognise IsraeJ's responsibility for the flight of the Palestinians.
•
•
•
•
Ibid., 154.
• -David Be'TheWar 1948-1949, entry for 9 Jan. 1949, 926.
'" Po!itical ConSultations, 4/12/49, State Archives, Foreign Ministry, 2447/3.
• MAPAI (Mif!eget Poa[ei Eretz Israel - Land ofIsrael Worker's Party) was estahlished in 1930 as a
• post-State years. served as the dominant politic:al party in the pre-State and early
'" See, among others, Simha Flapan, Th, Birth ofIsrael: Myths and Reabty, London: CroOln
• of Irab-Conf/ici, 1947-1951, London: L B.Tauris, 1992_6; IIan Pappe, TheMakmg
•
•4.
18
• 4. Policy and practice post-flight andj or expulsion: Changing the
4J demographic and physical character of Palestine
4. 60. Durîng 1948 and the fust haH of 1949, a number of processes definitively
changedthe physianddemographicharactof PalestiTaken
cOllectively, they steathe practical possibilîty of an Arab retum
more and more remote. These processes were theof theaI destruction
abandoned Arab villages, the cultivation and destruction of Arab fields, the
share-out of'abandoned' Arab lands taJewish settlements, and the settlement
neighbourhoTogether, these eventhat therewbe nowherenntryside
and nothing ta whîch the refugees coulcl return.
4.1 Destruction of villages
•• 61. The General Assembly's Resolution 181 (II1947 gave theber
proposeJewish State sorne 54 per cent land (see above,
paragraph8). Then a minority, largely urban population owning nornore than
4. partition, just as much as it did fOI the Palestinian majority to'reject it. They
resisted from theay, 50began Israel' s 'war of andependence'
the Palestinian nakba (catastrophe). The Zioniready,re comparatively
well-organized and equipped for the resistance and the war that was te come;
•• the Palestiniannity, however, was not. It lacked cohesion, was subject
to clan rivalries, external pressures, and Jack of military training and
•• expertise.
62. operations began to merge mto an offensive strategy by early 1948. After
•• December 1947, the dynamiting of Arab houses and parts of villages became
a majOI compoof most Haganah retaliatorAbout 350 Arab
• villages and towns were din the course of the 1948-49 war and
during its Immediate aftermath. By mid-1949, the majority of these sites were
• either cornpletely or partly in ruiThe destruction in the
350 villagesdue ta vandalism and loating, and ta Teliberate demolition
•
Morris, Birth of the Palestinian Refugee Problem, 155.
• Ibid, 155-6.
•
••
•
19
• wunits or neJewish settithe months after theiT conquest.
• 63.The destruction of villages became aDurîng theitical enterprise.
second half of 1948, and through 1949 an65the early 19505, the destruction
• fOIcefully abandoned Arab sites, uscontinued.ady half-destroyed,
• 4.2Takeovand alloof Paleslandsn
64.The takeover ofAriPalestine began with the ad hoc, more or less
• spontaneous, reaping of CIOpSArab lands by Jewishned
• sPalestine of Oriental Jews The summer crop ripened
first in the Negev, which is where Jewîsh reaping of Axab fields began. As the
• harvesting of Arab fields spread ta other parts of the country.,
• 65. During late April and early May, aand regionalrom settlements
cAbandoned (Arab) ProperÎ}', headed by Gad Machnes, the Committee's Yitzak
• Gvirtz began ta organize the cultfor Abandoned Committee
• Property-wsoon became the Arab Propand then theent
Property-rethe forcibly crop as Israeü state property and
• sold the right ta reap it to Jewish farmers and settlements. By 10 October 1948,
• cultivatian of 320,000 dunums (aequtaa quarteroxîmatelyroved
acre) of' abandoned' land, and Ministry Secretary Avarham Hanuki expected
• ministry anticipated leasing a further one million dunums during the second
• half of 1949.
•
•
• Ibid., 160.
• Ibid,
IbId., 179.
•
••
20
4.3 EstablishofTIesettlements
66. Therewere 279Jewish sePalestine on 29NovBetween47.
Jewish settlements were established, followed by 80 more at the end ofAugust
• 1949. Alrnostall these settlements werelands anded on Arab-owned
• dozens were established on territory earmarked in the 1947 United Nations
Partition Resolution for the Palestine Arab State. As Foreign Minister Sharett
• had set in and a large part of the geographical and economic vacuum created
by the exodus was filled.'6sThe settlements, mostly kibbutzim, expanded and
• deepened the Jewish hoPalestine.6~of
67. the towns in 1948, starting aImost immediately with the forced flight of Arab
• famîlies from mixed Jewisin the mcities. An early trace
• ofthe poliey can befound in Bento thenewly-appointed
Sorne Arab districts in western Jerusalem handarready been abandoned,
• Ben-Gurion ordered Shaltiel 'to settle Jewhalfevery house in abandoned,
Arab neighbou...'ds
• 68. The TransCommittfîrst prothat the govemadopt the
• and multi-fprogrammta bar return of \In Apnl1949,uses as part of a coherent
Yoseftal rethat of 190,000 iwho had arrisince the
• estab71shof the State, 110,000 had been seArabd in abandoned
• houses.
4.4 PalestinianfCitizenship
•
69. but were alsoeffectively and retroactivelUnderrived of theircitizenshîp.mes,
•
• " He added, '[W]e shall help in the resettlement of these displaced persons. We shall not
http:f j www.israe1.orgjmfajgo.asp?MDAH01atO. compensation for abandoned lands .. '
• Morris, Birlli!efrgee Problem,179.
Ibid., 190.
• " Ibid., 195.
•
••
•
21
• Ottoman Iule, the iriliabitants of Palestine were considered Turkish nationals.
Under the British mand pursuta League of Nations poliey, the
• admînistering powers, although they benefited from the exercise of diplomatie:
protectiAccordingly, Palestinian citiinGreat Britaîn as
• British ProtPersansalthounot as BritSubjectMandate
• citizenship was regulated by the Palestinian Citizenship Order 1925-41 and
included acquisitionPalestinian citizens were eligible for a British
• passport issued by the government of Palestine. The passport referred to the
of the PaJestinian Citîzenship Order, 1925-41,.ntiz.en under Article One or Three
• 70. Palestinian citize0ship oBritishlegiterminated with the
mandate, and with the proof the State of Israel on 15 May 1948.
Under internationcitizensrup and other laws can continue to apply,
even after a territory has been annexthis is generally a
• Howeveronly one (Israeli) cOurt has corne te inthea conclusion.veen the States.
Palestînian context and that was soon overtaken by municipallegislation.?1
• 71. Thus, the Palestinians' nationality status Althoughhin a legallacuna.
Israel had no nationality legislation until1952, Israeli courts held that on the
• termination of the mandate, former citizens of Palestine lost their citizenship
•
• Weis, Nationality and $tateless!edn., 1979).national Law, 20 (2Journal, 604,
• where it was held that the appellant, t~rriwaynder Turkishe barn when thatv. Ketter [1940]1 KB787,
subjectflue 30of the Treary of Lausanne of 24July 1923 (UKT$, No. 16/1923), or under the
• consequently, was not annexed by Great Britain by either Treaty or Mandate. See also, Goodwin·Gîll,
G. S., 'A note on nationaiIty iThe Refugee in In/emut/anal Law, (2"6edn.,
• 1996),241-6.
" S.R. & O., 1925, No. 25.
• Art. 3, Palestinian Citizenship Order:
• See Takkenberg;Refugees, 180, note 35, cîting a copy of a passport on file.
" A.v.M.B., 17 JLR 11Û (1950), (holding tha! 'Sa long as no law has been enacted
• of Israel, was resident in the tethe State of Israel is also a national ofthe establishment of the State
Israel:)
•
••
•
22
• without acquiring Forpurpoof Israeli munith8Qissue
1952 Law confrepeal of the PaCîtizenOrders 1925-41, The
• retroactively ta the day of the establisTdedared the State of Israe1.
• itself the exclusive law on citizenship, which was avaîlable by way of return,
residenc€, bir"thand nFormer Palestinian citizens ofArab orîgîn
• were eligible for Israeli nationality provided that they met the conditions of
sect(aApersan who immedîately before the estabbshment
• of the State, was a Palestînian citizen and who do€s hot
an Israeli national with effect From the clay of thecome
• establishof the State if:
March1952)asaniinhabitunderthe'h Adar, 5712 (1
• Registration of Inhabitants Ordinance, 5709-1949;
• (2)he îs an inhabîtant of Israel on the day
of the coming into force of this Law; and
• becameIsraelterritaftertheich
establishof the 5tate to the day of
• entered Israeduring that period., or
(b) A person barn after thof the 5tateent
• into force of this Law, and whose father or motheroming
becomes an Israeli national (a), shaHsection
• birth. an Israeh na60nal with effeet from the day of his
• 72. These strict requirements meant tofthose who, as a result
of the 1948 war, left the territory of what became Israel, were effectively
• denÎed Israeli citizenship.
• See Osm' v. Osui (1953) S PM 76; 17 ILR (1950), EstaJe ofShlfris (1950·51) 3 PM 222.
Palestirùan citizenship ceased tiotherpa.rts of the former mandated and
• territory of Palestine, aiter the establishment of the State of Israel and the annexation of the other parts
to neighbouring Naka<Miniof theI(1953) 7 ILR49 (1953).
• '" NationLaw, 5712/Officia22 (1952).
• Section 18(A).
Section 1.
•
•• -"',',,'
• "-".,
• -,'
.";-,-
Annex(Il)
•
C-co
•
•
•
•
•
•
•
• -'.,
• .-:
• ~-
• ',",
• "- - -,-'
• -'-'.
•
• "-' , 0,
• .'-
• - :. 55. Address by Prime MinÎsier Begin al the National Page lof 6llege, 8 August 1982.
•
•
•
• I!QWCKNAV~VOLUME 8: 1982·1984
liADD QUIClSL1NK
• i>
m Facts About Defense College, 8t 1982.ster Begin at the National
• Israel
• m1Relations College, the Prime Minister expla/ned his views on war.sof no cha/ce and
~ Israel al 50chaice. He ennumerated the conditions for such a WBrto take place. In
• Beyond Secre/ary of S!ateIsraconditions for the removal of theletler he sent to
elGovernment PWestBeirut fa/lawlng the wlthdrawal of "mas!" of the PL 0. personnel
• there. He implied tha! Israel had now changed ils previous stand
~ Personalitiethe tot0.withdrawa/. Excerpts:e multinational force enter Belrul on/y after
• C Peace ProcesA classic war of no alternative wasbthe Second World War waged
• still had an empire embracing an areaare kilometres, onlthough she
!IEconomy over whicr1led, though no longer exc!usively.k deep in the seven seas'
•
IlReligion and together foreed that small and courageous nation to bend its knee
• before Hitler..
• signed a treaty. Behind them stood the blood tyrant named Joseph
MAP Vissarionovich..
• INDEX And so war broke out on September 1, 1939, when the Nazi German
1..lNFO/l-IElP army crossed the Polish-German border.
• p Polish army was crushed and the Polish state ceased tohree day the
•
listen that there was a supreme genius sitting in the Kremlin, but in
• Qujcksearch German army attacked themy..understood nothing... On June 22,1941, the
B-R"iI This was, then, a war of no alternative for Poland, a war without option
• ilPowersearch for France and a war without choice for Russia.
[]SiteSearch and 40 million killed, three times this number wounded, among them six
• million Jews - the only people against whom the Nazi Germans used gas.
• peoples, for fear of the reaction).a5, but he did not use it against other
•
http://www.Israel-mfaAHOîc90/mfa/go.asp?MF 1/26/04 55. Address by Prime MînÎsterBegin at the National DefensPage 2 of 68 August 1982.
• ,,,,, ..~...... "'",."~...., ......no•• "''''''....... " .• ".
from total vÎctory. In 1944, Germany was close to developlng the atom
• bamb.
Was it possible ta prevent the Second World War?
• Today, thanks to research and the tacts known to us, there is no longer
• any doubt about the answer: Yes, jndeedif.i was possible to prevent
On March 7, 1936, Hitler announced that he was abrogating the Treaty of
• battalions of the German army into the demilîtarized Rhineland. At that
soldiers who entered the Rhineland. As a result of that, Hitler would have
• fallen.
His prestige would have crumbdinot yet have an, he
• French divisions, with their tanks, and with the air force at their disposai,
• would have blasted this entirtathe four wÎnds.rce
If this had happened, the Second World War would have been
• of millions of others would not have been wounded and the tragedy of
different today. million Jews slaughtered then would today be
• hands.12million, and the whoJeof Eretz Yistael would be in our
• began on MatchIfonly France, without Britain (which had sornetually
• have remained no trace of Nazi German power and war which, in three
years, changed the whole of human history, would have been prevented.
• This, therefore, is the international example that explains what is a war
withou1 choice, or a war of one's choosing.
• for GaIiIee is not a military operation resulting from the jack of anace
Israel; they "only" threatened the lives of Israel's citizens and members of
• that sentence. If there was no danger ta the existence of the state, whyf
• did yotwar?
1wiJ{expIain why. We had three wars whîch we fought without alternative.
• 194and Iasted unt1949It is worthwhile remembering theseovember
nine weeks which have already passed since the beginning of Operation
• armies invaded Eretz Israel. If nct for our ability, none of us wou!d have
remained alive.
• What happened in that war, whieh we went off to fight with no
• alternative?
Eretz Israel, and the numbetaabo1perceothented
• would mean 30,000 killed and about 90,000 wounded. courd we live with
•
http://www.israel-mfa.gov.iljmfajgo.asp?MFAHOic90 1/26/04 55. Address by Prime Mînîster Begin at the National Defense CoIIege, 8 August 1982.
•
those who sayme! "low
• Imperative:to win,5taa government, a parliament, aclear recognition of life'5
• people.cy, an army - a force ta defend Israel and the entire Jewish
• of Attrition tiWhat was the situation on that Yom Kippurand the War
Heights against 1,400 Soviet Syrian tanks: and fewer than 500 of our
• sent to tbythe Egyptians. along the Suez Canal against frve divisions
• 15it wonder that thothat war were hard ta bear? 1
and Defence Committee, and said: "0,/, it's sa hard! Our boys, 18- and
• very bodies." are Jjkeflies and are defending our nation with therr
• Command - todayofstaff - heard his deputy say, "This is it."
• Heights. And the then "Give me another fjve minutes". off the Golan
Sometimes flve minutes can decide a nation's fate. During those five
• on the Golan Heights.n tanks arrived, which changed the entire situation
• heights ta the valley, he would have reached Haifa - for there was not a
• would even have fought wioour esteemed wives hasute ta Haifa. Yes, we
every settlement there would have been the kind of slaughter at which
• theyrians are experts.
what happenedhem afterwards. Dozens of tanks were destroyed,and we know
• in a large formation. And dozens of planes were shot down by missilesm
• advances.e not destroyedso tsubmit to their
• heroes, the then defence minister, in whose veins flowed the bloodn's
Maccabees: "We are losing the Third Commonwealth."
• wounded. Together with the W;7rof Attrition -whjch was also a war 01no6,067
• casualties.9 killed, 7,251 wounded. The terrible total: almost 10,00
Our other wars were not without an alternative. In November 1956 we
• the fedayeen, who did not represent a danger ta the existence of theoy
state.
• However, the poJjtical leadershipught it was necessary ta
• summoned to David Ben-Gurion before the cabinet received information
these details: going ta meet the enemy before it absorbs the and myself
•
htlp://www.îsrae!-.B?MFAHOic90fa/ga 1/26/04 55. Address by Prime Mjnister Begin at the National DPage 4 of 6ege, 8 August 1982.
•
Soviet weapons whjch jtrCzechoslovakia ln 1955.
• And indeed, we stood together until the withdrawal, without a peaeer."
treaty and without the demilitarization of Sinai.
• of the Sinai peninsula and reached Sharm e-Sheikh. ActuaJ!y, weed mûst
• Gaza Strip (which David Ben-Gurion calfed "the liberated portion of the
Ben-Gurion that an Egyptian army would not return to Gaza.e, promised
•
Washington to ask Foster Dulles: "What happened? Where are theeir ta
• promises?" And he repIied: "Would you resume the war for this?"
• liberated portion of the homeland. ilag to fly again over that
• in theai approaches do not prave that Nasser was really about ta
atlack us. We must be hoWedecided to atlack him.
• government of national unity then established decided unanimously: We
• assure the security of Israel and the future of the nation.ck, and thus
• waiting. We could have sent the army home. Who knows if therewouldon
several arguments ta the contrary. WhiJe it ls indeed true that the closing
• always roorn for a great deal of consideration as to whether it is
• necessary taa cauaube/lum.
Independence, the War of Attrition and the Yom Kippur War - and it is
• wars of choice - the Sjnai Campaign and the Six Day War - we had wars, the
• today with few of our best youth, wlthout the strength to wlthstand the
Arab warld.
• category of wars of no alternative. We courd have gone on seeing our
gone on countlng those kiIIed by explosive charges left in a Jerusalemve
• supermarket, or a Petah Tikva bus stop.
• Ali the orders to carry out these acts of murder and sabotage came from
civillans, even after the agreement ending hostilîties reached lastg of
• them taat troevery side, besides southern Lebanan? Theyt permitting
mÎrawecapturedWemight aIso not have captured them. Theredan, and by a
• members admitted they had been about to commandeer a bus (and wese
• remember the bus on the coastal road).
Andn the Diaspora? Even Philip Habib interpreted the agreement
• 1/26/04
htfwww.israeI-mfa.gov.ll/mfa/go.asp?MFAHOlc90 55. Address by Prime Minister Begin at the National Defense CoIIege, 8 August 1982.
• endrng01nOS!IIItyas grvmg !nem 1reeaom to anaCK rargets beyOnd
permit Jewish blood to be spilled in the Diaspora? Shall we permit bombs
• permit our ambassadors ta be attacked?ome, Athens or London? Shall we
• There are sJanderers who say that a full year of quiet has passed
of quïet. The newspapers and communications media, including Themonth
• about our capturing the gang of murderers that cfossed the Jordan in
• order ta commandeer a bus and murder îts passengers.
they did threaten the lives of civîlians, whose number we cannotte. But
• estimate, day after day, week after week, month after month.
• potential of 20,000 -terrorists. We ho!d 9,000 in a prison camp. Beiween
captured and eut off in Beirut. They have decided to Ieave there only
• We made a second condition: after the exit of most of the terrorists, an
leave, youe U.S., Italy and France - must promise us in writing thatse ta
• Ieave Beirut and Lebanon. They have the posslbHity of forcing 2,000-s, ta
• 2,500 terrorists who wlII remain after the majority Ieaves.
leave Beirut and Lebanon, and the LO.F. will solve the problem.n, please,
•
the citizens of Israel and the U.S. ta know it.y, and [ want you and a!l
The prob!em will be solved. We can aJready now look beyond the
and logically assume, we protracted perlod of peaee. There isieve, reeognize
no other country around us that is capable of aHacking us.
• destroyed 24 of their ground-to-air missile batteries. After everything that
• the Golan Heights.d not go to war against us, not in Lebanon and not in
Jordan cannot attaek us.rned that Jordan is sending
• the Jordan and capture Amman.arning that Israel is about to invade across
• For our pwinot initiate any atlaek against any Arab country. We
for a peaee treaty with Egypt. That treaty stood the test of the fighting in
• Lebanon; in other words, it stood the test.
• soldier has been placed there. From the experience of the 19305, 1haven
demiIitarized zone, Israel would be oblîged to introduce, without delay, a
• order to wage war, but to achieve one of two results: restoration of the
armies trom the demilitarized zone; or aUainment of strategie depth, inbath
• case the other side has taken the tirst step towards a war of aggression,
•
http:.Ivsrael-mfa .govjI/mfa/go.asp ?MFAHOÎc90 1/26/04 • 55. Address by Prime Minîster Begin at Page 6 of 6l Defense College, 8 August 1982.
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• period of peaee.It is obviouslyimpossibleto set a date.are facing a historie
• perhaps more.But from the facts beforeus, it is clear that, with the end
• countries.ngpeaeetreatÎesand peacefuIrelations with the various Arab
• The conclusion - both on the basis of the relations between states and on
• a nation must, or is entitled ta, fight only when its baek is ta the sea, or ta
• nation; but it causes it terrible loss of life.caust, for any
• conditions under whitnobe for Jackof is a need fore thees war and loves
• casualties, not many. his actions - that the priee of victory will be few
•
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• http:{/www.lsrael-mfa.gov.îl/mfa/go.asp?M1/26/040•
• Annex (III)
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Preamble
• The Govemment of the Hashemite Kingdom of Jordan and the Government of the
• StateIsrael:
• which they are bath committed to honor,on, sîgned by thern on 25th ]uly, 1994, and
• EastOnSecurity Council resolutions 242 and 338 in aUtheir aspects;he ·Middle
• Bearing in mind the imporfance of maintaining and strengthening peaee based on
• overcoming psychologicaI barriers and promoting human dignity;ights, thereby
• Nations and recognizing thewieach other asligation to live in peaeehe United
• well as wîth aHstates, witrun secure and recognized boundaries;
• peace;he principles of întematîonallaw governîng international relatîons in time of
• Desiring as weIl to ensure lasting security for both their States and in particular to
• avoid threats and force between them; 1
• declared the terminationf belligerency between them; of25th July, 1994, they
• Deciding to establish peace between them T1eaty of Peace;
• !
•. Have agreed as follows:
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• •
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• Article 1- Establishment of Peace
• ofIsrael (the "Parties") effective from the exchange of the instruments of ratification
• of this Treaty.
• Article2 - General Principles
• The Pwiapply between them the provisions of the Charter of the United
• time of peace. ln particular: relations among states in
• L They recognize and will respect each other's sovereignty, territorial integrîty and
• 2. They recognize and will respect each other's right
• and recognized boundaries;
• 3.ensure laswrefrain from the threat or use of force against eachtween them to
• other andseUle aIl disputes between them by peaceful rneans;
• 4.independence of every state in the region;, territorial integrity and polîtîcal
• 5.regional and bilateral relatîonshlps;aI role ofhuman development and dignity in
• 6.in such a way as ta adverse1y prejudice the securÎty of either Party should not be
• permitted.
•
• Article3 - International Boundary
1.to the boundary definitiiAnnex, n theoandate as is shawn
• mapping materials attached thereto and coordinates specified therein.
• •
•
•
• 2The boundary, as J(a), is the permanent, secure and recognized
• of any territories that came under Israeli military govemment control in 1967.tus
• 3The Parties recognize the international boundary, as well as each other's territory,
them.torial waters and airspace, as inviolable, and will respect and comply with
• 4The demarcation of the boundary will take place as set forth in Appendix.(1) to
• Annex lwibe concluded not later than 9 months after the signing of tbe
Treaty.
• 5changes in the course afthe flow of the river as described in Annex 1 (a), the
• changes the boundary shall not be affected unless otherwlse agreed.ny ather
• 6.Immedîately upon the exchange of the instruments of ratification of this Treaty.
Anne1(a).y will deploy on its side of the international boundary as defined in
•
• 7.conclude, withln 9 months, an agreement on the delimitation oftheir maritime to
• boundithe Gulf of Aqaba.
8which is under Jordanian sovereignty, with Israe1î private ownership rîghts, the
• Parties agree ta apply the provisions set out in Annex 1(b).
• 9.apply.pect ta the AI-Ghamr/Zofar arel(c) willovisions Set out in Annex
•
Article 4 - Security
•
• 1. a. Bath Parties, acknowledging that mutual understanding and co
• their relwifurther enhance the securÜy of the region,gnificant part of
advancement of joint interests and co-operation, and to aîm tqwardsst,
• aregional frameworin peace,ershîp
• b. Towards that goal,thchievements oftheize
• •
•
•
European Community and European Union in the development of
.' the Conference on Security and Co-operation in Europe (CSCE) and
commit themselves to the creation,dle East, of a
• (CSCME).ce on Security and Co-operatione East
• This commitment entails the adoptionl models of security
of the Helsinki Process) culminating in a regional zone of security
• and staty,i
•
2.right of self-defense În accordance with the United Nations Charter.a the inherent
•
3. The Parties undertake, in accordance with the provisions of 1his Article, the
• following:
aT0 refrain from the threat of use of force or weapons, conventional,
• non-convenÜonal or of any other kind, against each otheT,or of other
actions activîties that adversely affect the security of the other
Party;
b.To refrain from organizing, instigating, inciting, assisüng or
or violence agaînst the otherligerency, hostility, subversion
c.T0take necessary and effective measures to ensure that acts or
otherarty do not originate from, and-are not committed within,inst the
through or over their territory (hereinafter the term
includes the airspace and territorial waters).
4. Consistent with the area of peace andtobuild regional security
and to avoid and prevent aggression and violence, the Parties further agree ta
refrain from the following:
a. 10ining or in anyway assisting, promoting or co-operating with any
coalition, organization or alliance with security
characterth a third party, the objectives or activities of which
against the other Party,avention of the provisions of thestility
present Treaty;
b.thrauitof military forces, personnel or material of a third party,
in circumstances which may adversely prejudice the security of the
other Party.•
•
•
• 5.combating terroalkinds. The Parties undertake:res, and will co-operate in
• a.T0take necessary and effectÎve measures to prevent acts of
• territory or through it and to take necessary and effective measures
to combat 5ueh activities and all their perpetrators;
• b. Without prejudice to the basic rights of freedom of expression
and association, to take necessary and effective measures to prevent
• the entry, presence and operation in their terrÎtory of any group or
the other Party by the use of, or încîtement to the use of, violent
• means;
,
•' c.infiltrations. in preventing and combating cross-boundary
6. Any question as to the implementation of this Article will be dealt with through a
supervîsîand where necessaothermechanismsand highelevelrification,
consultations. The details of the mechanism of consultations will be contaîned in
an agreement to be concluded by the Parties within 3 months of the exchange of
the instruments of ratification ofthis Treaty.
7. The Parties undertake to work as a matter of prioriin, and as saon as possible,
Security, and jo.intly, towards the following:on Arms Control and Regional
a. The c.reationin the Middle EasfrOhostileion free
allianancoalitions;
b. The creation of a Middle East free from weapons of mass
destruction, both conventional and non-conventional, in the context
renunciation of the use of force, and by reconciliation and good will.
Article 5- Diplomatie and Other Bilateral Relations
1. The Parties agree to establîsh full diplomatie and·consular relations and to
exchange resident ambassadors within one month of the exchange of the
instruments of ratification of tms Treaty. •
• 2. The Parties agree that the normawilfurthership between them
include economic and cultural relations.
• Article 6 - Water
•
• problems between them:ving a comprehensive and lasting settlemen1 of ail the wateT
• 1. The Parties aterecognize the rightful allocations of both ofthem
accordance with the agreed acceptable principles principles, quantities and
• with.ity as set out in Annex II, whichcted and complied
• 2. The parties, recognizing the necessity to find a practical, Just and agreed
• solutionwatproblems and with the watcanhat the subject of
fundertake ta ensure that ensure that the management and development of their
• party.resources in any way, harm the water resources of the other
• 3. The parties recognize that their water resources are not sufficiel1t to meet their
• nînc1udingprojects of regîonal and international co-operation.,
• 4. In light of paragraph 3 of this Article, with the understanding that co-operation
alleviate their water shortages, and that water issues aIong their entire
• trans-boundary water transfers, the Parties agree to search for ways to alleviate
• water shortages and ta co-operate in the following fields:
• athe water availability, including cooperation on a regionalng
• through the chain of their uses;izing wastage of water resources
b. Prevention of contamination of water resources;
• c. Mutual assistance in the alleviation ofwater shortages;
• d. Transfer of information and joint research and development in
• •
water-rdated subjects, and review of the potentials for
enhancement of water resources developrnent and use.
5. The implementation of bath partiesundertakings underthis article is detailed
in Annex Il.
Article 7 - Economic Relations
1. Viewing economic development and prosperity as pillars of peace, security and
harmonious relations between states, peoples and individual human beings, the
parties, taking mote of understandings reached between them, affinn their mutual
desire to promote economîc co-operaüon between them, as weIlwithin the
framework ifwider regional economic co-operation.
2. In order to accoroplish this goal, the parties agree to the following:
a. Ta remove aIl discriminatory barriers to DonnaI economic relations,
to terminate economic boycotts directed at the Party, and to co
operate in terminating boycotts against either Party by third parties;
b. Recognizing that the prînciple of free and unîmpeded flow of goads
and services should guide their relations, the parties will enter inta
negotiations with a view concluding agreements on ecanomic co
operation, including trade and the establishmentfree trade area
or areas, învestment, banking, industrial co-operation and labor, for
the purposeof promoting beneficial economic relations, based on
princîpleso be agreed upon, as weU as on human deve!opment
considerations on a regional basÎs. These negotiwillbe
cancluded no later th6nmonths from the exchange of the
instrumentsof ratificationthisTreaty;
c. Ta co-operate bilaterally, as weIl as in multîlateral forums, toward
the promotionoftheir respective econonlles and oftheir
neighborly economicrelations with other regional parties.
Article 8 - Refugees and Displaced Persons
Recognizing the massÎve human problems causcd ta bath Parties by the conflict in
the Middle East, as well as the contribution made by them towards the alleviaüon
••
•
•
• on a bilateralleveLthe parties will seek to further alleviate those problems arising
• 1. Recognizing ihat the above human problems caused by the conflict În the Middle
them in appropriate forums, iincluding thewith internationallaw, win seek to resolve
• folla.n the case of displaced persons, in a quadripartite cornmittee
• togethEgyand the Palestinians;
• b. In the case of refugees,
• (ion Refugees;mework of the Multilateral Working Group
• (ii) In negotiations, in a framework to be agreed, bilateral
• as the permanent 5tatus negotiations pertaining to the
Territories referred to in Article 3j
• c. Through the implementation of agreed United Nations
• programs concerning refugees and displaced persons, including
• assistance to their settlement.
•
Article 9 - Places of Historical and Religions Significance
• and Interfaith Relations
• 1. Each Party will provide freedom of access to places of rdigious and historical
• significance.
• 2.in Jerusalem. Whenthe permanent status will take place,n in Musiim Holy shrines the
• Israelvhipriority to the Jordanian historie role in these shrines.
e 3.monotheistic religions, with the aim of working towards religious understanding ,
• .moral commitment, freedom of reIigious worship, and tolerance and peace. •
Artic10-Cultural and Scientific Exchanges
The parties, wishing to remove biases developed through periods of conflict,
, recognize the desirabilityand scientific exchanges in aIl fields, and agree to
and not later than9 months from the exchange of the instruments of ratification of this
• Treaty, conclude the negotiations on cultural and scientific agreements.
•
1. Article Il - MutuRelationstanding and Good Neighborly
• 1. The Parties will ?eek to foster mutual understanding and tolerance based on shared
• historie values,rdingly undertake:
l, a.0abstain from hostile or discriminatory propaganda against
measures to prevent the dissemination of such propaganda by any
orgaruzation or îndividual present in the territory of either Party;
b.exchange of the instruments of ratification ofthis Treaty, to
repeaJ aHadverse or discriminatory references and expressions of
hostîlity in their respective legislation;
• c.references or expressions;publications from any such
d. ta ensure mutual enjoyment by each other's citizens of due
before their courts. theÎr respective legal systems and
2.freedom of expression as contained in the International Covenant on Civil and
Po!itica! Rights,
• 3.there bas been a violation ofthese Article.e incidents where one Party claims
•
•
•
• •
•
1.
Article 12- Combating Crime and Drugs
• The Parties will co-operate in combatîng crime, with an emphasis on smuggling,
production of, as the trafficking in illicit drugs, and will bring to triale
• perpetrators of such aets. In this regard, they take note of the understandings
undertake to conclude aHrelevant agreements not later than 9 months from the
date the exchange of the instruments of ratification of this Treaty.
• Article 13- Transportation and Roads
•
recognize the mutuality of interest in good neighborly relations in the area ofies
• this sphere:on and agree to the following means to promote relations between them in
•
• 1.inanwithin its terrthgeneral roies applicable to nationalsf the other
and vehicles of other states. Neither Party will impose discriminatory taxes or
• territorye other.he fanvehicles fram its territory to the
• 2. The Parties wîll opeborder~crewegheiroads and
countnes and will consider further roads and rail links between them.
• 3.agreemin the above and other areas, such as joint projects, traffic safety, transport
• and meteorology, ta be 6months .from the exchange of the, shipment of goods and cargo,
• instrumentstification of this Treaty.
4. The Parties agree to continue their negotiations for a highway to be constructed and
• maintaîneden Egypt, Jordan and Israel near Eilat.
•
•
••
•
Article 14 - Freedom of Navigation and Access to Ports
J. Wîthout prejudice to the provisions of paragraph 3, each party recognizes the right of the
vessels of the other Party to innocent passage thraugh its territorial waters in accordance
with the rules ofinternationallaw.
2. Each party will grant normal access to its ports for vessels and cargoes of the other, as
weU as vessels and cargoes destined for or coming from the other party. Such access will
be granted on the same conditions as generally applicable to vessels and cargoes of other
nations.
3. international waterways open to al! nations for unimpeded and non-suspenfreedom
of navigation and over flight. The pawillrespect each other's right to navigation and
overflight for access to either Party through the Straits of Tiran and the Gulf of Aqaba.
Article 15 - Civil Aviation
1. The parties recognize as applicable to each other the rights, privileges and obligations
provided for by the multilateral aviation agreements to which they are both party,
particularly by the 1944 Convention on International Civil Aviation (the Chicago
Convention) and the 1944 International Air Services Transit Agreement.
2. Any declaration of national emergencbya Partyunder Article 89 of the Chicago
Convention will not be applîed ta the other Party on a dîscriminatary basis.
3. The parties take note of the negotiations on the interaircorridor to be opened
between them in accordance with the Washington Declaration. In addition, the Parties
sha!l, upon the exchange of the instruments of ratification ofthis Treaty enter into
negotiatiol1S for the purpose of concluding a Civil Aviation Agreement. AH the above
negotîatiol1s are to be concluded not later than 6fromthe exchange of the
instruments ofratificatofthis Treaty.
Article 16 - Post and Telecommunications
The Parties take note of the opening between them, in accordance with the Washington
Declaration,ofdirect telephone and facsimile lines. Plinksthe negotiatîonon wh1ch
having been concluded, will be activated upon the signature ofthis Treaty. The Parties
further agree that nonnal wireless and cable communications and television relaybyervices •
•
• cable, radio and satellite, will be established between them, in accordance with all relevant
• concluded not later tban 9 months from the exchange of the instruments-of ratification of this-:
• Treaty.
• Article 17- Tourism
The Parties affirm {heco~opetinn them in the field of
• reached between them conceming tourism-agree to negotiate, as soon as possible, and togs
• Treaty, an agreement to facilitate and encourage mutuaI tourism and tourism from third
• countries.
• Article 18 - Environment
•
which they attach great importance, including conservationironment, a sphere to
,. above, to be conc\uded not later than 6 months from the exchange of the instruments ofthe
ratification ofthi5 Treaty.
• Article 19- Energy
• 1. The Parties will co-operate in the development of energy resources, including the
• development of energy reJated projects sueh as the utilization of solar energy.
[. grids in the Eilat-Aqaba area, will implement the interconnecting upon the signature of
, " concept. They agree to continue tbeir negotiations as soon as possible to widen the
• scope their interconnected grids.
• 2from the date of exchange ofthe instruments of ratification of this Treaty.thin 6
•
•
••
Article 20 - Rift Valley Development
The Parties atlach great importance to the integrated development of the Jordan
-RiftValley area, including joint projects in the economic, environmental, energy-related and
tourisrn fields.ing note of the Tenns of Reference developed in the framework of the
Trilateral Jordan-Israel-US Economie Committee towards the Jordan Rift Valley
Development Master Plan, they will
vigorously continueheir efforts towards the completLon of plarnling and towards
implementation.
Article 21 - Health
Parties will co-operate in the area ofhealth and sha1l negotiate with a view to the
conclusion of an agreement within 9 months of the exchange of the instruments of
ratification of this Treaty.
Article 22 - Agriculture
Partiewillco-operate in the areas of agriculture, including veterinary services, plant
?rotection, biotechnology and marketing, and shaH negowitte~view ta the conclusion
agreement within 6 months from the date the exchange of instruments of ratification
Treaty.
Article 23 - Aqaba and Eilat
Parties agree to enter into negotiations, as soon as possible, and not later than one month
the exchange of the instruments of ratification of this Treaty, on arrangements that
enable the joint development of the towns of Aqaba and Eilat with regard to such
inter alia, as joint tourlsm development joint customs posts, free trCQ zone,
"'.lion in aviation,
veraiemof pollution, maritime roatters, police, customs and heaith co-operation. The
will conclude aH relevant agreements within 9 months from the exchange of
rurnelotof ratification of the Treaty. •
1.
u..
r Article 24 - Claims
,
• The parties agree ta establish a claims commission for the mutuaI settlement of ail financial
claims.
Article 25 - Rights and Obligations
1. This Treaty dose not affect and shaH not be interpreted as affecting, in any, way
the rightsobligations ofthe Partiesifth:UniNations.er
2. The Parties undertake to fulfill in good faith their obligations uoder this Treaty,
without regard to actionon of any other party and îndependently of any
• instrument incowitthis Treaty. For the purposes ofthis paragraph, each
inconsîstency between the!r existing trea!y obligations and tms Treaty.ere is no
3. They further undertake to take ail the necessarylication in
parties, including the submissione notification to the Secretary they are
General of the United Nations and other depositories of such conventions.
4.references to the omult~larotvninlto which they are parties,sh all pejorative
to the extent that sueh references exist.
5. The Parties undertake not to enter into any obligation in eonfliet with this Treaty.
6.Subject to 103.oftU~itNaions Charter, in the.event of a conflict
between the obligations of the Parties under the present Treaty and any oftheÎr
implemented.tions, the obligations under thÎs Treaty will be binding and
Article 26 - Legislation
With3months of the exchange of the instruments of ratification ofthis Treaty, the
• Parties undertake to enact any legislation neceTre~ty,n arder to implement the
and ta tenninate any international eornmitments and to repeal any legislation that is
• inconsÎstent withaty.
•
•i.
1.
,
Article 27 - Ratification and Annexes
1. This Treaty shall be ratibyebath Parties in conformity with their respective
national procedures. It shaH enter inta force on the exchange of the instruments of
ratification.
2. ll1e Armexes, Appendices, and otheTattachments to this Treaty sha11be
considered Integral parts thereof.
Article 28 - Interim Measures
The Parties will apply, in certain spheres to be agreed upon, interim measures pending
the conclusion of the relevant agreements in accordance with this Treaty, as stipuJated
in Annex V.
Article 29 - Settlement of Disputes
Disputes arising out of the applicOfinterpretation of tms Treaty shall be resolved
by negotiations.
Any such disputes which cannot be settled by negotiations sha11be resolved by
conciliation or submîtted to arbîtration.
-" Article 30.- Registration
., This Treaty shall be transmitted to the Secretary General of the United Nations for
registration in accordance with the previsions of Article 102 of the Charter of the
United Nations.
Done at the Araba/Arava Crossing point this day ]umada AI-UIa, 21 1415, Heshvan
21\ 5755 to which corresponds 26 October, 1994 in the Arabie, Hebrew and English
languages, a11texts belng equally authentic. ln case of divergence of înterpretation,
the English text shall prevail.o
o
For the Hashemite Kingdorn of Jordan For the State ofIsrael
Abdul Salam Majali Yitzhak Rabin
Prime Minister 9( Prime Minister
1JL~~~(\/~
Witnessed by:
C>
-.
William J. Clinton
{"J President of the United states of America
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=== = --- - -~---=---•
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•
List of Annexes. Appendices and Other Attachinents
•
• Armex 1: (a) International Boundary
• (c) AI-Ghamr/Zofar Areaea
• Appendices (27 sheets);
• • Dead sea (2 sheets), 1:50,000 orthoimagesto maps
• • Baqura Area (1 sheet), 1:20,000 orthophoto maps orthophoto maps
• • Gulfof (1sheets), 1:50,000 orthoimagesaps
Annex Il: Water
Annex IV: Envirorunentrug
Annex V: Interim Measures
Attachments: Agreed Minutes A to D•
• ANN(a)1
•
•
•
•
•
•
•
•
• •
• ANNEX (a)
•
•
•
• 1.boundary between the twots of the following sectors:he Treaty, the international
• • The Jordan and Yarmouk Rivers.
• • The Gulf of Aqaba.k Ha'arava.
•
• 2. 111eboundary is delimited as follows:
• L Jordan and Yarmouk Rivers
a) The boundary Line shalldle of the main
• course of the flow of the Jordan and Yarmouk Rivers.
• b) erosion)e corivunless otherwise agreed.changes (accretion or
• affect the location of the boundary unless otherwise agreed. No
• both Parties.anges may be made except by agreement between
• c) the course of the rivers (avulsion or cutting of new bed)
• meet as soon as possible, to decide on necessaryshall
• the prior location of the river course. of
• d) The boundary line in the two riveTs is shown on the
• attached to this Annex).s dated 1994 (Appendix III
•
• •
•
• e) due to natural changes (accretion or erosion) shalls
• Boundary Commission or once every five years.
• f) Thenes defining the special Baqura/N aharayim area are
ta this Annex).10,000 orthophoto map (Appendix IV attached
• g) The orthophoto maps and image maps showing the line
• Israeli Military goverrunent control in 1967 shall have
• legend shall carry on it the following disclaimer:d the
• "This line is the administrative boundary between
military government control in 1967.under Israeli
• territory. "a11be without prejudice to the status of that
•
• II. Dcad Sea and Salt Pans
• attached ta the Annex). The list of geographic and Universal Transverse Mercator
Datum (UBD 1994) and, when completed and agreed upon by both parties, thisundary
• locationhe boundary rirre in the Dead Sea and the salt pans.e maps as to the
•
• IlL Wadi ArabafEmek Ha'arava
• a) The boundary line is shown on the 1:20,000 orthophoto maps
• (IO sheets, Appendix 1attached ta this Annex).
b) demarcadon procedure, by boundary pillars which will boundary
• boundary shown in therthophoto rnaps referred ta in
• pillars the boundary line shaBfollowa straight line.ndary
•
• •
•
• c) UTM coordinates based on ajoint boundary datum (IJBD 94) touc and
• two parties (hereinafter the JTE)ositionings appointed by the
• prepared, signed and approvedas saon ascoordinates shall be
• force and shaHbecome part ofthis Annex. This list of
• over the maps as to the location of the boundary line of this
• sector.
d) accordance with a procedure to be agreed upon. The coordinates
• pillars in case they are damaged, destroyedonstruct boundary
• e) The line defining the Al·Gharnr/Zofar area is shawn on the
• V attached to this Annex).a'arava orthophoto map (Appendix
•
• IV. The Gulf of Aqaba
• The Parties shaH aet in accordance with Article 3.7 of the Treaty.
• 3. Joint Boundary Commission
• a) establish a Joint Boundary Commission comprîsed ofthree memberss will
• The Commission will, with the approval of the respective
• b) meetings, and the details of its scope of work. The COID;inissionmay
• invite experts and/or advisors as may be required.
• c) committees and assign to them tec1mical tasks., speciatized teams or
•
••
• ANNEX1 (b)
•
•
•
•
•
•
•
•
• •
•
• ANNEXI(b)
•
• 1. Tbe two parties agree that a special reglme will apply to the BaqurafNaharayim
this Annex the area ls detailed in Appendix IV.n thlS Annex. For the purpose of
•
• 2.private land ownership rights and property interests ("Land Owners") in the land
• comprislng the area ("the land") Jordan undertakes:
• • usage and moyement within the area to -theland-ovmers and to therr Invitees or
accordance with applicable Jordanian law;eir land in
• a) Not to apply its customs or immigration legislation to land-owners,
• the purposeini1the land for agricultural, touristic or to the area for
• any agreed purpose;
• b)or activitiesthe area;inatory taxes or charges with regard te the land
c) 0take a11necessary measures to protect and prevent harassment of or
• harm to any person entering the area under this Annex;
• d)Israeli policeccess to the area for the purpose ofinvestigatingthe
• theirvitees or empLoyees.er incidents solely involving the !andowners,
• 3. Recognizing Jordanian savereignty over the area, Israel Undertakes:
• a)activities prejudiciaJor~an;e peaee or security of
b) Not to allow any persan entering the area under this
• paragraph 2 {e) ofthis Annex to carry weapons of any
• authoritiesdan after being processed by thelicensing
• liaison committee referred to this Annex.
• •
•
• c) Not to allow the duping wastes from outside the area into
• the sea.
• 4. Subject to this Annex, Jordanian law will apply to this area:
• aIsraelîs may be applied.to Israelis and their activities in
• the area, and Israel.
• c) Having regard to this Annex, Jordan will not apply
• onlyIsraelinationals.tivities involve
• 5. In the event tagreed and developed by the
• purpose of byagreement between the parties at any time. One of the
• projects would be the establishment of a FIee - Trade Zone.
• 6area, this Annex will remben in force for 25 years, and shallthin the
noticetermination is given by either party, in which case, at the
• request of either party, consultations shall be entered inta.
• Israeli citizens shall take placeval of Jordan.by persons who are not
• 8. A lordanian-Israeli Liaison Cornmittee is hereby established in
• arder to deal with all matters arising under tms A..nnex.
•
•
•
•
•
••
• ANN(c)
• 1·,:,,·,,;;~'t$·iAJJ~'GaAMRWZQl\l\.R:AMA\~;;i'l
•
•
•
•
•
•
•
•
••
•
• ANNEX 1(c)
• 1 :,,."-.
•
J("tbeea") on a temporary basis, as set out in trus Annex. For the purpose of trusea
• Annex the area is detailed in Appendix V.
• 2.private land lise rights) in the land compnsing the area ("the land")ith Israeli
• Jordan undertakes:
a) usage and movement within the area to the land-users and to their land
• their rights in the usage of the land in accordance with applicable of
• Jordanian
• b) invitees or employees crossing from Israel directly to the area for ther
• purpose;of gaining access ta the land for agricultural or any agreed
• c) Not to impose discriminatory taxes or charges witb regard ta the land
or activlties within the area;
• d) Thann to any person entering the area under tIris Annex;rassment of or
• e) To pemlit with the minimum offormality, uniformed officers of the
• crimedealing with other incidents solely invoIving the land-users,
• theirltees or employees.
3. Recognizing Jordanian sovereignty over the area, Israel undertakes:
•
• a) prejudicia! to the peace or security of Jordan;the area actlvities
• b) Not to aUow any person entering the area under this Annex {other
• Annex) to carry weapons in the area; unless authorized(e)
• •
•
• c) BYthe licensing authorities in Jordan after being processed by the
• liaison commtin Article 8 of this Annex.
• d) area.o allow the dumping of wastes from outside the area into the
• 4. a) Subjectfuis Annex, lordanian law will apply to this area.
• b) Isrlaw applying to the extra territorial activities ofIsraelis
• Israel may take measures in the area to enforce such laws.d
• c) Having regard to this Armex, Jordan will not apply its criminal
laws to activities in the area which involve ooly Israeli nationals.
• 5area the tenus of thi5 Annex may be altered for the purpose of the joint project byhe
• agreement between the Parties at any time.
• 6remain in force for 25 years, for the same renewed automaticaUyex will
• whîch case, at the request of either Party, consultations shan be entered mto.
7. In addition ta the requÎrement referred ta in Article 4(a) of !rus Annex, the
• place only with the prior approval of Jordan.citizens shaH take
• 8.Jordanian-Israeliihereby establîdewithn order ta
• aIl matters arising under this Annex.
•
•
•
•
•
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1.
•
• Declaration, EU, 18November 2003
• Afier thefourth meeting of the Association
• statement, saying ifs wants Israel to haIt the construction of ils wall through
tUnion on thefourth meeting of the Association Counci/ EU-Israel, held in
• BrusseJ8 November 2003.
• Declaration
• IsraeL The Association Agreement offers the framework for strengthening
• this effecl. This session folIows the last meeting of the Associationorts to
• progressin severalareasof co-operation.which enabled us to make good
• 2, The Association Agreement provides us also with an institutionalised
issues of common interest, the aim of which is to develop better mutual
• understanding,increasingconvergenceof positionson internationalissues,
• COTIgoals, in peace, and democracy. The EU attaches
• with Israel atls. Consequently, the Association Committee at ils lastalogue
• which were the Middle East Peace Process, Iran, Iraq, terrorism, among
• Partnership.tion, the Wider Europe initiative and the Euro-Mediterranean
The EU is ready to consider proposaIs submitted by Israel in the margins of
• this context the ban imposed by Israel on official contacts with EUue; in
• not in line with the spirit of these proposaIs. The EU stresses the importance
• includingpecial Representative, Ambassador Marc Otte. The EU urgesocutors,
• the Israeli side to reconsider its position in view of the negative impact it
•
••
•
• might have for the future dialogue.
...
• 4. The EU is fmnly corruuitted to the clear objective oftwo States, Israel and
• secuithe framework of a comprehensive peace in the Middle East, aspeace and
• The EU is deeply concerned by the situation in the region and has noted that,
• and lasting solution, insufficient effort has been made by the concernedjust
• underscored recent Quartet Ministerial Statement issued Septemberp,
• death to both the Israeli and the Palestinian peoples and putting at risk
• security in the region and beyond.
• - to live up to the commitments they undertook at the Aqaba surruuit on 4iity
• through negotiation. The objective is an end to the occupation and the early
• adjustments agreed by the parties. The end result should be two states living
• with their neighbours.e and recognised borders enjoying normal relations
• The EU urges aIl sides in the region to immediately implement policies
• will take steps to the contrary willbe inevitably affected by such behaviour.
• The EU strongly condemns the intensification of suicide attacks and other
sides to refrain from any provocative action which can furtherescalate the all
• Terrorist attacks against Israel have no justification whatsoever. The EU
• priorities of the European Union as weIl as of the entire internationalne of the
•
•
••
•
Community and that it is the duty of aIl countries, in particular of those in
• froml support, direct or indirect, to terrorist organisations.ism and to abstain
• The EU emphasises once again that the Palestinian Authority must
• violence and urges the PA and its President to take immediate, decisive steps
• dulyempowered Prime Minister and Interior Minister, and confront control of a
• individuals and groups conducting and planning terrorist attacks.
• Iurges the Governrnent of Israel, in exercising this right, to exert maximumks.
• humanitarian and economic pliIalso calls onestinian people. aggravates the
• with intemationallaw, including extra-judicial killings and destruction of
houses.
• Palestinian Authority would be contrary to internationallaw andof the
• conflict.oductive to the efforts at reaching a peaceful solution to the
• humanitarian situation in the West Bank and Gaza which is making life
• support to fundamentalist groups to the detriment of popular support to thend
• Palestinian Authority, is providing assistance to alleviate the suffering of the
• future Palestinian State. This assistance is becoming increasingly difficult
• ta facilitate the reforrn of the Palestinian Autbority and increase efforts ta
• from the international community to provide humanitarian assistance to the
• access and security of humanitarian personnel and their installations be
Palestinian territories is crucial. We attach importance ta the work carried
•
•
••
•
• conditions and alleviate human suffering.arder ta improve living
• The EU is particularly concerned by the route marked outfor the so
• The envisaged departure of the route from the "green line" couldm.
• impossible toIwould cause furtheandumanitarianState solution physically
• of the fence are being cnt off from essential services in the West Bank,
resources. In this context the EU is alarmed by the designation of land
• a de-facto change in the lega] status of Palestinians living in tbis area
• stop and reverse the construction of the so-called security fence inside
• Jerns.which is in departure of the armistice line of 1949 and is in
• contradiction to the relevant provisions of internationallaw.
• as the tenders for several hundred new units issued in October, inflamesuch
• obstacleeace. The EU urges the Government of Israel ta reverse itsIt is an
• EU calls on the Government ofIsrael ta apply immediately a full andst step the
outposts established since Marchnt activities and ta dismantIe ail settlement
• The EU reaffirms once again that there is no alternative ta a swift and full
• reiterates the detennination of the European Union to contribute to all
• effective third-party monitoring mechanism as laidg ta a credible and
• which should be urgently set up.
•
•
•
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Written Statement of the Hashemite Kingdom of Jordan