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INTERNATIONALCOURT OF JUSTICE
LEGAL CONSEQUENCESOFTHECONSTRUCTION OFA WALL
IN THE OCCUPIEDPALESTINIAN TERRITORY
(REQUESTFOR ADVISORY OPINION)
STATEMENTOF THE GOVERNMENTOF THE KINGDOMOFTHENETHERLANDS
30 JANUAR20041 INTRODUCTION
1. In Resolution ES-10114,adopted on 8 December2003 by the Resumed Tenth
Emergency Special Session of the General Assembly of the United Nations (UN), the
General Assembly decided to request the InternationalCourt of Justice ("the Court")
urgently to give an advisory opinion on the following question:
"What are the legal consequences arising from the construction of the wall being built
by Israel, the occupying Power, in the Occupied PalestinianTerritory, including in and
around East Jerusalem, as described in the report of the Secretary-General,
considering the rules and principles of internationallaw, including the Fourth Geneva
Convention of 1949,and relevant Security Council and General Assembly
resolutions?".
2. In its Order of 19 December 2003, the Court designated 30 January 2004 as the time
limit within which written statements must be submitted to it by the UN and by States
which are entitled to appear before the Court, in accordance with Article 66(2) of the
Court's Statute.
3. As the Netherlands is a member State of the UN and by virtue of Article 92 of the UN
Charter also a party to the Statute of the Court, it wishes to avail itself of the opportunity
given by the Court's Order of 19 December 2003 to States entitled to appear before the
Court to make a written statement on the above-mentioned request by the UN General
Assembly for an advisory opinion from the Court.
OBSERVATIONS ON THE COURT'S COMPETENCE AND DISCRETION TO GlVE
II
THE SAlD ADVISORY OPINION
1. Under Article 96(1) of the UN Charter, the UN General Assembly may request the Court
to give an advisory opinion on any legal question. Article 65(1) of the Court's Statute
governs the competence of the Court to give an advisory opinion. The question submitted
to the Court for an advisory opinion concerns the legalconsequences of the construction
of a wall' in the Occupied Palestinian Territory, and therefore constitutes a legal question.
'
In this Statement, the Netherlands will use the term "wall", as used in the request for an advisos. opinion, without
implying that it is a more accurate or appropriate term than "security fence", "barrier" or whatever other term may be
employed. In the opinion of the NetherlandsGovernment,the UN General Assembly must be
deemed competent to requestthe advisory opinion.
2. If the Court considers the UN General Assembly competentto request, and itself
competent to give, the advisory opinion concerned,the NetherlandsGovernment would
nonetheless draw attention to the fact that the Court's power to give advisory opinions is
a discretionary one. As stated by the Court itself in the Western Sahara Case (ICJ Rep.
1975, p. 21, para. 23):
"ln exercising this discretion, the InternationalCourt of Justice, like the Permanent
Court of International Justice, has always been guided by the principle that, as a
judicial body, it is bound to remainfaithful to the requirements of its judicial character
even in giving advisory opinions. If the question is a legal one, which the Court is
undoubtedly competent to answer, it may none the less decline to do so."
3. In the Advisory Opinion on Legality of the Threat or Use of Nuclear Weaponsthe Court,
citing several previous cases, stated that only "compelling reasons" should lead it to
decline to give an advisory opinion (ICJ Rep. 1996, p. 235, para. 14). The Netherlands
Government believes that there are compelling reasons why, in this particular case, the
Court should decide to abstain from giving the advisory opinion requested.
4. On 8 December 2003, in a statement on behalf of the European Union, the Acceding
Countries and nine other European States, before the Resumed Tenth Emergency
Special Session of the UN General Assembly, the Permanent Representative of ltaly
urged
"all sides in the region to immediately implement policies conducive to dialogue and
negotiations".
With regard to the request for the Court's advisory opinion on the legality of the
construction of the wall in the Occupied Palestinian Territory, he concluded that the
proposed request
"will not help the efforts of the two parties to re-launch a political dialogue and is
therefore inappropriate."
For this reason the Netherlands abstained on Resolution ES-10114(which was adopted
by 90 votes to 8, with 74 abstentions).5. The Netherlands believesthat the establishment of a Palestinian State, living side by side
with lsrael in peace and security, must be realised through political dialogue and
negotiations. If the Court decides to comply with the General Assembly's request, there is
a real danger that this would underminethe re-launching of such a political dialogue on
al1aspects of a comprehensivepeace settlement.
111 LEGALITY OF THE CONSTRUCTIONOF THE WALL INTHE OCCUPIED
PALESTlNlAN TERRITORY
6. The Netherlands does not consider it necessaryto make substantive observations on the
merits of the legal question submittedto the Court for an advisory opinion. The
Netherlands has expressed its view on the legality of the construction of the wall in the
Occupied Palestinian Territory in the General Assembly, to which view it respectfully
refers the Court below.
7. The Netherlands voted in favour of Resolution ES-10113 adopted on 21 October 2003 by
the Resumed Tenth Emergency Special Session of the General Assembly of the United
Nations (which was adopted by 144votes to 4, with 12 abstentions), in which the General
Assembly reiterated (preamble):
"its cal1upon Israel, the occupying Power, to fully and effectively respect the Geneva
Convention relative to the Protection of Civilian Persons in Time of War of 12August
1949";
and demanded (operative para. 1):
"that lsrael stop and reversethe construction of the wall in the Occupied Palestinian
Territory, including in and around East Jerusalem, which is in departure of the
Armistice Line of 1949and is in contradiction to relevant provisions of international
law".
8. In the above-mentioned statement of 8 December 2003, on behalf of the European
Union, the Acceding Countries and nine other European States, before the Resumed
Tenth Emergency Special Session of the General Assembly of the United Nations, the
Permanent Representative of ltaly recalled that the European Union presented
Resolution ES-10113. In this statement he also stated:
"While recognizing Israel's right to protect its citizens from terrorist attacks, the
European Union urges the Government of Israel, in exercising this right, to fully
respect international law, in particularman rights and international humanitarian law including the Fourth Geneva Convention and to exert maximum effort to avoid
civilian casualties and take no action that aggravatesthe humanitarian and economic
plight of the Palestinian people."
IV CONCLUSION
9. The Netherlands is convinced that the construction of the wall in the Occupied
Palestinian Territory, including in and around East Jerusalem, in departure of the
Armistice Line of 1949, is in contradictionto relevant provisioofinternational law. The
Netherlands is also convinced that the requestfor an advisory opinion from the Court will
not helpthe efforts of the two parties to re-launch a political dialogue and is therefore
inappropriate. The Netherlandstherefore respectfully requeststhe Court to exercise its
discretion to decline to answer the question put to it by the UN General Assembly in this
case.
Johan G. Lammers
Representative of the Kingdom of the Netherlands
30 January 2004
Statement of the Government of the Kingdom of the Netherlands