CourinternatdeJustice
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Internationaf Justice
FiledintheRegis:dOoJAM .:1b~ih1/39
INTERhTATIONALCOURTOFJUSTICE
LEGALCONSEQUEKCESOFTHECONSTRUCTIONOFA WALL
IX THE OCCUPIED PALESTINIATERRITORY
(REQUESTFORADVISORY OPINION)
WRITTENSTATEMENT
OFMALAYSIA
30JANUARY2004 INTERNATIONALCOURT OF JUSTICE
LEGAL CONSEQUENCESOF THE CONSTRUCTIONOF A WALL
IN THE OCCUPIED PALESTINIAN TERRITORY
(REQUEST FOR ADVISORY OPINION)
WRITTEN STATEMENT
OF MALAYSIA
30JANUARY 2004 TABLE OF CONTENTS
Introduction ............................................................... ..........
..............................
1. There are no compelling reasons notto exercisethe advisoryjurisdiction .3
A . The General Assemblyhas competenceto request an advisory opinion ....
B. The GeneralAssemblyhas a specialdutyto dealwith the
Israeli-Palestinian issue..................................................5.....................
....
C. The Palestinianterritory hasa specialstatus and
the General Assemblyhas a specialresponsibility ........................8...........
D . The competenciesof the GeneralAssemblyandthe Security
Council do not clashwith respectto the Israeli-Palestinianissue .........9....
E. The Role of the TenthEmergencySpecialSessionof the
General Assembly .......................................................11...............
..........
F. There is no need forthe consent of an interested State ...................15.......
II.The Principles and Rules of InternationalLaw Raised bythe Advisory
Opinion .................................................................. 19.....
....................................
A . The legalstatus ofthe territory precludesIsrael from constructingthe Wall
...
within it......................................................................19
..................................
1. It is not a "disputed territor.........................................20...................
2 . It is not . .aeli territ...............................................22......................
3 . It isPalestinian territor..............................................24......................
4 . It is a territory under militaryoccupation.............................25.............
5. It is a territory under international supervisi........................29..........
B . The Wallconstitutes a defacto separationlineviolatingthe
obligationto respect the 1949 ArmisticeLine ("GreenLine") ...........33....
C . The Wall infringesthe territorial integrity of Palestin...................41.......
D . The Wallinfringesthe rightto self-determinationofthe
Palestinian People ......................................................43................
..........
E . The Wall infringes the enjoymentof human rights .......................44.........
F . The Wall violates principles andrules of international humanitarianlaw 47
G . The Wallinfringesupon the obligationto abstainfromunilateral
measures undermining a solutionofthe conflict .......................... 0........5
H . Self-defence andcombatingterrorism cannot serveas legalgroundsfor
the construction of the Wall in OccupiedPalestinian Territory ...............52......
III.Submissions .......................................................... .5.............
......................
ANNEXES .....................................................................57.
................................
List of documents provided to the Registrar ....................................61.................Introduction
1. The General Assembly andthe ovenvhelming majority of States consider
that the construction of the Wall by Israel in the Occupied PalestinianTerritory
(hereinafler "OPT") is illegal. The Court is requested to render an advisory
opinion upon the legal consequences of this conduct of the Occupying Power.
The answer of the Court to the question submittedto it will have a practical and
significant effect on present and future action of the General Assembly with
respectto the OPT.
2. The terms of the request madeby the General Assemblyin Resolution ES-
10114adopted on 8 December 2003are as follows:
"What are the legal consequences arisingfrom the construction
of the wall being built by Israel, the occupying power, in the
Occupied Palestinian Territory, includingin and around East
Jerusalem, as described in the report of the Secretary-General,
considering the rules and principles of international law,
including the Fourth Geneva Conventionof 1949, and relevant
Security Counciland GeneralAssemblyresolutions?"
3. Malaysia is CO-sponsorof the draft resolution requesting this advisory
opinion. In doing so, it reaErms its recognition of the high function of the
InternationalCourt of Justice as the principal judicialorgan ofthe United Nations,
its respect for international lawand its support for a just, comprehensive and
lasting settlement of the conflict in the Middle East. As stated by Malaysia on
behalf of the Non-Aligned Movement at the General Assembly, "an advisory
opinion from the International Court of Justice wouldprovide an independent and
impartial pronouncementon the legal consequences arising fromthe construction
ofthe wallby ~srael".'
4. As the Court stated: "The jurisdictionof the Court under Article96 of the
Charter and Article65 ofthe Statute, to give advisory opinionson legal questions,
1StatementofMr. Rastam, 8 December2003,AJES-10fPV.23,p. 12.
1enables United Nations entities to seek guidance from the Court in order to
conduct their activities in accordance with law7'.*And that is exactly what the
internationalcommunityislookingfor inthis long-standing issue.
5. In the present written statement, Malaysia reiterates its support for the
request for an advisory opinion andaddresses some of the relevant legalquestions
arising from the question submittedto the Court. The fact that this statementwill
focus on certain particular issuesdoes not mean that Malaysia does not attach
importance to other relevant points, whichwill certainly be developed in other
statements,particularlyinthat submittedbyPalestine.
6. The statement is divided into three main sections. The first refers to the
competence of the General Assembly to request an advisory opinion and the
reasons forthe Court to exercise itsjurisdictionin this regard. The second section
addresses the substance of the request, dealing with some of the important legal
questions that it raises. The last section of this statement concludes with the
submissions.
2Applicability ofArticlfISection 22, ofthe Conventionon thePrivileges and Inznzunitiesofthe
CTnited~Vations, dvisory Opinion,I.C.J. Reports 1989,p. 188,paragra31.
21. There are no compelling reasons notto
exercisethe advisoryjurisdiction
7. In this section, it will be shown that the General Assembly has
competence to request the present advisory opinion,since it clearlyraises a legal
question falling within the scope of its powers and fùnctions. Likewise, the
section addressesthe absence of compellingreasonsthat would leadthe Court not
to exerciseits advisoryjurisdiction.
A. The General Assembly has competenceto requestan
advisoryopinion
8. The competence of the General Assemblyto request an advisory opinion
of the International Court of Justice is derived directlyfrom Artic96 (1) of the
UN Charter, whichreads as follows:
"The General Assemblyor the Security Councilmay request the
International Court of Justiceto give an advisory opinionon any
legalquestion."
9. Both the reference to the General Assembly as one of the two named
principal organs of the United Nations and the phrase "any legal question"
exempli@the broad competence of the Assemblyto request advisory opinions.
As to what constitutes a legalquestion, it is relevantto refer to the observationsof
the Court in earlier advisory opinionsin which the Court indicated that questions
"framed in terms of law and rais[ing] problems of international law..are by their
very nature susceptibleof a replybased on law..[and] appear...to be questionsof
a legal~haracter."~
SeeIl'esternSahara,Advisory Opinion, ICJReports 1975,p. 18,para.15andLegalip of the
Threator Use ofNuclear Weapons,Advisory Opinion,ICJ Rep1996p.233, para.11.10. The question in the present case submitted to the Court for advice is
clearly a legal one, relating as it does to the "legal consequences" of the
construction of the Wall and its compatibility with "the rules and principles of
international law". It follows from Articie 102 (2) and (3) of the Rules of the
Court that an advisory opinionmay also be given on "a legal question actually
pendingbetween two or more states".
11. The request currently under review is the fifteenth request made by the
General Assemblyout of a total of 25 requests for advisory opinions. Upto today,
the Court has never declined to render an advisory opinion requestedby the
General Assembly.
12. The Charter of the United Nations does not stipulatethat the decision to
request an opinion from the International Court of Justice must be adopted by a
two-thirds majority under Article 18 of the UN Charter or by consensus. Nor do
the Rules of Procedure of the UN General ~ssembl~.~Until date, with the
exception of the request regarding the Reparation for Iiljzrries Szdfered ii~the
Sewice of the United Natioizs, which was adopted unanimously, al1requests by
the General Assembly for an advisory opinion have beenadopted by a majority
vote. The adoption of Resolution AIRESIES-10114on 8 December 2003 was
undoubtedly a legallyvalid decision,being adopted by a clear majorityvote of 90
to8, with 74 abstentions.'
13. As the Court stated in the Advisory Opinion Legalityof the Threat or Use
ofNuclear Weapons:
"...once the Assembly hasasked, by adopting a resolution, for
an
advisory opinionon a legal question, the Court, in determining
whether there are any compelling reasonsfor it to refuse to give
such an opinion, will not have regard to the origins or to the
4SeeRules 69 and 88 of the Rules ofProcedure of the UNGeneral Assembly.
ES-lOh'V.23, p. 20. political history of the request, or to the distribution of votes in
respect of the adopted resolution. "6
14. According to Article 65 of the Statute of the ICJ, the Court "may give"
("peut donner") an advisory opinion,thus indicatingits discretion notto entertain
such a request. However, on various occasions the Court emphasized that, in
principle, requests for advisory opinions should not be refused, unless
"compellingreasons would justi@refusal of such a request".7In the present case,
as will be explained below, there are instead urgent "compelling reasons" to
complywith the request ofthe General Assembly.
B. The General Assembly has a special duty to deal with the
Israeli-Palestinian issue
15. Few issues in international relations have given rise to such an intensive
involvement on the part of the United Nations asthe question of Palestine, and
peace and security in the Middle East. In April 1947, the United Kingdom
brought the matter before the General Assembly announcing its intention to
terminate the Mandate of Palestine and leaviw respomibility for an adequate
solution to the United Nations. Thereupon, the General Assembly adopted its
Resolution 181 (II) of 29 November 1947, known as the Plan of Partition,
providing for an independent Arab State and an independent JewishState, upon
the basis of the findings of the United Nations SpecialCommittee on Palestine
(UNSCOP) andthe Ad Hoc Committeeon Palestine. '
6Legalify of the Threat or Useof A'uclearJl'eapons,Advisory Opinion,I.C.J. Reports 1996,p.
737, para. 16.
SeeApplication for Review ofjudgment no. 333 of the UNAdministrative Tribunal,Advisory
Opinion,ICJ Reports 1987, p. 31; WesternSahara,Advisory Opinion,ICJ Reports 1975, p. 21,
para. 23; Legalify of the Threat or Useof AruclearWeapons,Advisory Opinion,I.C.J. Reports
8996,p. 235,para. 14.
UNGARes. 181(II), 29 November1947.This resolution\vasadoptedby avoteof33 to 10,with
10abstentions.16. This is not the place to record in detail the history of the involvement of
the General Assemblywith the Israeli-Palestinian issue.It might sufice to state
that this involvement has been extensive and spansa period of more than 55
years. In this period, the General Assembly has adopted a large number of
resolutions, convened specialand special emergency sessionson Palestine and
establishedvarious subsidiaryorgans, includingthe UN Conciliation Commission
for ~alestine,~the UN Relief and Works Agency for Palestinian Refugees in the
Near East (UNRWA)" and the SpecialCommittee to Investigate Israeli Practices
AfTectingthe Human Rights of the Palestinian People and Other Arabs of the
Occupied~erritories."
17. The competence of the General Assembly to deal with the Israeli-
Palestinian conflict arises fromboth its general functions andpowers under the
UN Charter and its specific shared responsibility for supervision of the
administration of Palestine asa Mandated Territory under the League of Nations
System.
18. The general functions ofthe General Assembly extend virtually to the
whole scope of activity of the United Nations. Its most general function is
provided forinArticle 10 of the UN Charter, whichreads as follows:
"The General Assembly may discuss any questions or any
matters withinthe scope of the present Charter or relatingto the
powers and functionsof any organs provided for in the present
Charter, and, except as providedfor in Article 12, may make
recommendations to the Members of the United Nations or to
the Security Council or to both on any such questions or
matters."
UNGA Res. 194 (III), 11 December 1948. See also A/RES/55/123 (2000) requesting the
Commission (France,urkeyand USA)to continueits work.
'OUNGA Res. 302(IV), 1949.
" UNGA Res. 2443 (XXIII),19December 1968.19. Further generalfunctions are stated in the subsequent Articles 11 to 17of
the UN Charter. In general terms, Malaysia notes that through the years the
General Assemblyhas made a full and active use of its general competence in al1
fields withinthe purview ofthe purposes of the UnitedNations as stated in Article
1. There can be little doubt that the multifaceted Israeli-Palestiniandispute falls
squarely within the scope of the General Assembly's general function to
contribute to the maintenance of "international peace andsecurity..." (Art. 1.l),
"to developfriendlyrelations among nations based on respect for the principleof
equal rights and self-determination of peoples" (Art. 1.2, "to achieve
internationalCO-operationin solving problemsof an economic, social, culturalor
humanitarian character and encouraging respect for human rights and for
fundamental freedoms for al1without distinction as to race, sex, language or
religion" (Art. 1.3), and "to be a centre for harmonizingthe actions of nations in
the attainmentof these commonends" (Art. 1.4).
20. As regards specific functions,the Court acknowledged that the General
Assembly fulfils supervisory functions previously exercised by the League of
Nations in the case of a Mandated Territorynot placed under the United Nations
Trusteeship co stem The"General Assemblyhas assumed awide range of duties
with respectto the situation prevailing interritories having an international status
and in the implementation'of the right of peoples to self-determination. Among
these are the OPT and the Palestinianpeople.
l2International Status ofSouth-PVestAfrica, Advisory Opinion,ICJ Reports 1950, pp. 143-144.
7C. The Palestinianterritoryhas a special statusand the
General Assemblyhas a special responsibility
2 1. Palestine was a Mandate of the League of Nations which has stillnot been
officially terminated.13 Palestine neither became independent nor was placed
under the trusteeship systemof the United Nations at the time of the dissolution of
the League of Nations. As explained above, the General Assembly has been
involved in the question of Palestine from the very beginning. The United
Kingdom,the Mandatory Power, unilaterallydecided to put an end to its function
by 15 May 1948. From that date, and even before, the General Assemblyhas
never ceased fulfillingits supervisory functions,either during its regular sessions
or in special sessions. Indeed, as stated above, special sessionswere convened on
the question of Palestineas early as 1946and 1947. The function of international
supervision of Mandates vested in the Council of the League of Nations was
assumedby the General Assembly,as was recognisedby the Court in its advisory
opinionon the IillertiationalStatzrsofSouth-West~3ica.I~
22. It is also well known that the GeneralAssemblyhas played the major role
in UN policies for the implementation of the right to self-determination. It is
patently clearthat the Palestinianpeople have notbeen ableto fullyexercise their
right to self-determinationbecause of the continuing military occupation of their
territory by Israel. The General Assembly is duly concerned with the
implementation of the right of peoples to self-determination in al1 cases of
colonialrule, foreign domination or alien occupation. In workingwith this issue,
it has supervisory powers to assess this right in particular situations and to
determine whether measurestaken by administeringor occupying powers would
jeopardise the exercise of this right.Indeed, the action of the GeneralAssembly in
this field has led to the creation of most of the newly independent States which
are now members of the United Nations. In fact, many of the advisory opinions
l3Seeparagraph 47 below.
14International Status of South-WestAfrica, Advisory Opinion,I.C.J.Reports 1950,p. 137.
8rendered by the Court to the General Assembly are related to problems arising
with regard to territories for which the General Assembly exercised supervisory
functions.15
23. For these reasons, the General Assemblyhas fullcompetenceto request an
advisory opinionthat will helpit to carry out its duties in regard to supervisingthe
situation in a territory which still has international status and to implementingthe
right of peoplesto self-determination.
D. The cornpetencies of theGeneralAssembly and the Security
Councildo notclash with respectto the Israeli-Palestinianissue
24. While the Charter vests the Security Council with the primary
responsibility for the maintenance of peace and security, it is widely
acknowledged that thisresponsibilityis not exclusive.The wide-ranging functions
and powers of the General Assemblycan certainlyalso includematters relating to
peace and security. This follows clearly from the text of Articles 10, 11 (2), 14
and 35 of the UN Charter.
25. In general terms, the relationshipbetween the General Assembly and the
Security Council isgoverned by Articles 12 and 14 of the UN Charter. Article 12
(1)ofthe Charter provides:
"While the Security Council is exercising in respect of any
dispute or situation the fùnctions assigned to it in the present
Charter, the General Assembly shall not make any
recommendation withregard to that dispute or situation unless
the Security Councilso requests."
15
InternationalStafusofSouth-West Africa,Advisory Opinion,1.C.J.Reports 128;,Voting
Procedure onQuestionsrelating toReports and Petitions concerning the TerritoryWest
Africa, Advisory Opinion, I.C.J. Reports 167;Admissibility ofHearings ofPetitioners by
the Committee on South-West Africa, Advisoty Opinion, I.C.J. Reports 1956, p. 23; Legal
Consequencesfor States of the Continued Presence of South Africa in hramibia (South-West
Afvica) nofisithstandingSecurip CouncilResolution 276 (1970),Advisory Opinion,I.C.J. Reports
1971,p. 16;JlfesternSahara,Advisory Opinion,I.C.J. Reports 1912.p.26. In the practice of the two political organs this paragraph 1 of Article 12
has been more flexibly interpreted than prima facie might be assumed from its
wording. In fact, the General Assembly has not only frequently included a
"dispute" or "situation" on its agenda for consideration whenthe same issue was
simultaneously being addressed bythe Council, but the Assembly has also not
shied away from making recommendations on issues with which the Security
Council itself was also actively dealing. Examples abound and include the
apartheid policies of South Africa, the question of Namibia, various situations in
the MiddleEast, the Western SaharaandKosovo.
27. Often the General Assembly has dealt with such issues from a broader
political, humanitarian, socialand economic perspective, while the Security
Council has tended to focus on the security aspects only. The long list of
resolutions simultaneously adopted by the General Assembly and the Security
Council on the Palestine question provide further incontrovertible evidenceof
this. It was, therefore, correctly concludedin an authoritative Commentaryof the
Charter that "the GA has managedto assume considerable powers of discretion,
whichare only marginallyrestrictedby Art. 12 (1)."16
28. A special case with respect to the particular relationshipbetween the
General Assembly andthe Security Councilis provided by the Uilitiizgfor Peace
Resolution, adopted by the General Assemblyin 1950 at the time of the Korean
crisis.17Under the terms of this resolution the General Assemblyconferred upon
itselfthe power to recommend collective measuresifthe Security Council:
"...because of lack of unanimity of the permanent members,
fails to exercise itsprimary responsibilityfor the maintenanceof
internationalpeace and securityin any case where there appears
to be a threat to the peace, breach of the peace or act of
aggression".
16HailbronnerIKlein, "Article 12", in B. Simma (ed.), The Charter of the United hrations.A
Commentary, 2nded., Vo1,2002, p. 293.
" GA Res. 377 A (V), 3 November 1950.
1O29. Obviously,in the case of a veto by one or more permanent members,the
Security Councilwill not be in a position to exercise"in respect of any dispute or
situation the functions assigned to it" in the Charter in terms of Art(1). 12
Consequently, the terms of theUrzif iotzPeace Resolution vest the General
Assembly with the authority to recommend collective measures. In the case of
findinga breach of peace or act of aggression,the Assemblycan even recommend
militasraction.
E. The Role of the Tenth Emergency Special Sessionof the
GeneralAssembly
30. Article 20 of theN Charter provides for the possibilitythat the General
Assemblycan meet for a special session"as occasion may require". Such special
sessionscan be requested by the Security Councilor a majorityof the membersof
the United Nations. In addition,tUrlit forrPgace Resolution introduced the
concept of "special emergency sessions", to be convened if requested by "any
nine" members of the Security Council or a majority of the members of the
United ~ations."
31. So far, the General Assembly has been convened in 27 special sessions
and ten emergency special sessions. Arnong the special sessions, the first two in
1947 and 1948 dealt with the question of ~a1estine.l~As many as six out of the
1The UnirinforPeace Resolution requiresa majorityof "any seven" members of the Security
Council.However,asa resultofthe 1963amendmentofthe Charter (entryinto forcein 1965),the
word "seven" in Articles 23 and 27, which relate to the compositionand decision-makingof the
SecurityCouncil, shouldbe read as "nine".
1The first special sessionwas convenedupon the requestofthe United Kingdom and supported
by a majority of the members, see46-47, p. 276; the secondby the Security Council,
upon the request of the United States,by a vote of 9 to O,with 2 abstentions. SC Resolution 44
(1948) of 1 April 1948, adopted at 277th meeting (9-0-2) requesting the Secretary-General, in
accordance with Article 20 of the United Nations Chartarspecial session of the
General Assembly toconsider further the future government of Palestine. 1" special session,
PalestiN3,10(GAOR, 1stspec. sess. [Suppl.No. notindicatedon vol.] (47.1.11),28 April-15ten emergency specialsessionsheld so far have addressed problemsin the Middle
~ast.~' The first in 1956 dealt withthe Suez Canal crisis;the second in 1958with
Israel, Lebanon and Jordan; the fifth in 1967 with the Six Day-War; the seventh
from 1980 to 1982 with Palestine; the ninth in 1982 with the Golan Heights; and
the tenth from 1997to date with occupiedEast Jerusalemand the rest ofthe OPT,
includingthe construction by Israelofthe WallinmainlyPalestinianterritory.
32. The decision by Israel in 1997 to build a new settlement in Jabal Abu
Ghneint to the south of occupied East Jerusalemled to the conveningof the tenth
emergency special sessionof the General Assembly,following aveto of a draft
resolution sponsored by France, Portugal, Swedenand the United Kingdom in the
SecurityCouncil. Subsequently,upon the request of Qatar and with the support of
approximately 100 member States, the tenth emergency special session was
convened for the first time on 24-25 April 1997. On 25 April 1997,the Assembly
adopted resolution AIES-1012 by a vote of 134 to 3, with 11 abstentions,
reiterating establishedUN positions regarding Jerusalemand Israeli settlements;
callingfor the cessation of al1forms of assistance andsupport for unlawfùlIsraeli
activities in the OPT, including Jerusalem; calling for the taking of measures to
ensure respect by Israel, the OccupyingPower, of the Fourth Geneva Convention
and establishinga monitoringsystemthrough the Secretary-Generalof the United
~ations.*' The Assemblyexpressedthe convictionthat:
"...the repeated violation by Israel, the occupying Power, of
international lawand its failureto comply with relevantSecurity
Council and GeneralAssembly resolutions andthe agreements
reached between the parties underminethe Middle East peace
process and constitute a threat to peace andsecurity".
May 1947and 2ndspecial session,N555 (GAOR,2nd spec. sess.,Suppl.No. 2), 16April-14 May
2018,see UNYB 1947-48,p. 257.
7th Emergency special session on Palestine, AIE4 Add.1 + Add.l/Corr.1(GAOR,7th
emer. spec. sess.,Suppl.No. 1);9th emergency special sessionon the Occupied Arabtemtories,
AIES-917(GAOR,9th emer. spec. sess., Suppl.No. 1); 10themergency special session onthe
OccupiedEast Jerusalemand the rest ofthe OccupiedPalestinianTerritory,AIES-1015,AIES-
lOIL.1+ Add.1,AIES-lOL.2/ Rev.1,AIES-101L.3 +Add.1,AIES-lO/L.4/Rev.l+ Rev.lIAdd.1,
AIES-lOIL.51Rev.1,AIES-1OL.6,A/58/ES-10IL.13,N581ES-10IL.16 [Add. 11A/58/ES-IOIL.17
[Add.11,A/RES/ES-1012-11.
21For a report seeUNYB1997,p. 394.33. With various intervals the tenth emergency special session has been
repeatedly reconvened,the latest occasion being the session o8 December 2003
which led to the adoption of resolution AES-10114 whereby the General
Assemblydecided to request the International Court of Justice to give an urgent
advisory opinionon the construction of the Wallbeing built byIsrael in the OPT.
The antecedent of this request is the resolution AIES-10113,based on a drafi
subrnitted bythe European Union, the acceding and associated countries and the
EFTA countries membersof the European Economic Area, adopted by 144votes
to 4 (Israel, Marshall Islands, Micronesia athe United States of Arnerica) with
12 abstention^ .^y^this resolution, the General Assembly demanded Israel to
stop and reverse the construction ofthe Wallin OPT, considered this construction
in contradiction to relevant provisions of international law andrequested the
Secretary-Generalto report on compliance withthe resolution.
34. Resolution ES-10114requesting the advisory opinionwas adopted by this
emergency special session due to the facts that the questions submitted to the
Court relate to the construction of the Wall in the OPT and that the Security
Council failedto adopt a resolution on this issue, as a result of the veto by one
permanent member at its4~42"~Meeting of 14 October 2003.'~The construction
of the Wall is certainly a question related to internationalpeace and security,but
it also embraces other fields of activity of the United Nations. The Security
Councildoes not have exclusivecompetenceto dealwith the situation in the OPT.
It shares its responsibilitywith the General Assembly.The long-standing practice
of the Organisation of adopting resolutions on the question by both organs is
unambiguous evidenceof this. There is no "conflict of powers" at all. The
Security Council has not taken the stance that the General Assembly was
encroachingupon its competenceby adopting resolutionsES-10113and ES-10114.
2Adoptedon 21 October2003, see AIES-10PV.22.
2See SPV.4842, 14 October 2003, p. 2.35. The fact that the resolution requesting the Court for an advisory opinion
was adopted by an emergency special session of the General Assemblyis not a
matter of discussion before the Court. It is a procedural matter for which the
GeneralAssemblyexercisesthe Konzpeteizz-Konz rpe.tInnzis regard, it may
be relevantto quote the legal opinion of the Legal Counsel of the United Nations
on the conveningof an emergencyspecialsession:
"In the ultimate analysis, it is for the General Assembly to
interpret authoritativelyits own resolutions and,in this case, to
decidewhether a request for an emergencyspecialsessionmeets
the requirements of resolution 377 A (V). This has in fact been
answered in the present case in the affirmative by the
concurrence of a majority of Members in the request for the
conveningof the seventh emergencyspecialsession."24
36. Obviously, there is only one General Assembly.The fact that the organ
requesting an advisory opinionadopted the relevant resolutionon an issue falling
under its competence in a special or in an ordinary session is irrelevantto the
jurisdiction of the Court, provided that the resolution was validlyadopted, which
is the case in respect of GA Resolution ES-10114.As the Court itself formulated
this positionin its 1971Nanzibi advisory opinion:
"A resolution of a properly constituted organ of the United
Nations which is passed in accordance with that organ's rule of
procedure, and is declared by its President to have been so
passed, mustbe presumedto have beenvalidlyad~~ted".~~
37. Finally, it may be noted that no member State decided against
participatingeither in the sessionor in an ensuingvote by using the argumentthat
it considered the 10~ emergency special session to be nul1and void. Only one
member State raised hypothetical considerationsregarding the validity of this
session. Although making reservations with regard to the validity of convening
24UN Secretariat,OfficeofLegal Affairs,21 July 1980,Uh'JYB1980,pp. 187-188.
Z5Legal Consequencesfor States of the Continued Presence of South Africa in Namibia (South-
IfTestAfrica) nohvithstanding Securiîy Council Resolution 276 (1970), Advisory Opinion, ICY
Reports 1971,p. 22, para. 20.the emergency special session,this State nonetheless participatedin the vote.26
This conduct may be seen as contradictory. It would normallybe expected that a
member State which holds the view that the General Assembly is acting ultra
virew sould not participate in a vote considered by it as nul1and void and thus
incapableof producinga validresolution.
F. There is noneed for the consent ofaninterestedState
38. Israel has expressed its opposition to the request of the present advisory
opinion. It is not the first time that a State particularlyconcerned by the question
submitted to the Court has voiced its opposition and it is well established that
such opposition does not precludethe Court from complyingwith the request for
an advisoryopinion.27
39. The Court has consistentlypronounced that "the absenceof an interested
State's consent to the exercise of the Court's advisory jurisdiction does not
concern the cornpetenceof the Court but the propriety of its exerci~e".~~ In order
to examinethe impact of a possible lackof consent byIsrael to the exerciseby the
Court of its advisory jurisdiction, it is essential to clarie the intention of the
request madeby the GeneralAssembly.
26A/ES-10PV.23, pp. 11-12 and21
27Legality of the Threat or Useofhruclear TVeapon, dvisory Opinion,I.C.J. Reports 1996,p.
232,paragraph11;Applicability ofArticle VI,Section 22, ofthe Conventionon thePrivileges and
I~nnzunitiesof the Unitedhrations,Advisory Opinion,I.C.J. Reports 1989,p. 177;Applicability of
the ObligationtoArbitrateunderSection 21 ofthe UnitedNationsHeadquartersAgreement of 26
June 1947, Advisory Opinion, I.C.J. Reports 1988,p. 12; Western Sahara, Advisory Opinion,
I.C.J. Reports 1975,. 12;Legal Consequencesfor the States of the ContinuedPresence of South
Africa in hramibia(South-WestAfrica) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J.Reports 1971,p. 16;CertainExpenses ofthe UnitedNations (Article 17,
paragraph 2,of the Charter),Advisory Opinion,I.C.J. Reports 1962,p. 151;International Status
of South-West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 128; Voting Procedure on
Questions relating to Reports and Petitions concerning the Territory of South-West Africa,
Ahisory Opinion :I.C.J. Reports 1955, p. 67;Admissibility of Hearings of Petitioners by the
Conzmitteeon South-LlfestAfrica, Advisory Opinion,I.C.J. Reports 1956,p. 23.
28WesternSahara, advisoryopinion,I.C.J. Reports 1975, p. 20, paragra21.40. In the present request for an advisory opinion,the Court faces a similar
situationto that of the procedures concerningthe Legal Consequencesfor States
of the Continued Presence of South Africa in Nantibia (South-West Africa)
notwithstanding Security CouncilResolution 276 (1970) and the WesternSahara
advisory opinions.The opposition of South Africa inthe former and of Spain in
the latter did not preclude the Court from exercisingits advisory jurisdiction.The
Court clearly distinguished situations in which territories are under international
supervision from those in which this is not the case such as in the Status of
Eastern Carelia, in which the Permanent Court of International Justice decidedto
decline to give an an~wer.~' In particular, the Court stressed in the Western
Sahara advisory opinion:
"In that case, one of the States concernedwas neither aparty to
the Statute ofthe PermanentCourt nor, at the time, a Member of
the League of Nations, and lack of cornpetenceoftheLeague to
deal with a dispute involvingnon-member States which refised
its intervention was a decisive reasonfor the Court's declining
to give an answer. In the present case, Spainis a Member of the
United Nations and has accepted the provisions of the Charter
and Statute; it has in general given itsconsent to the exerciseby
the Court of its advisory jurisdiction.It has not objected, and
could not validly object, to the General Assembly'sexercise of
its powers to deal with the decolonization of a non-self-
governing territory and to seek an opinionon questions relevant
to the exerciseof those powers".30
41. Moreover, at issue in Eastern Carelia was a dispute regarding the
interpretation of a bilateral treaty between Finlandand SovietRussia with regard
to the status of an autonomous region withinthe Soviet Russian Federation. The
situationbefore the Court in the present instanceconcerns the legal consequences
of the construction of a Wall by the OccupyingPower in an occupied territory
over which the United Nations has supervisoryfùnctions. In WesternSahara,it
must be recalled that Spain was the recognised AdministeringPower of a non
29Legal Consequencesfor States of the Continued Presence of SouthAfrica in Namibia (South-
Il'estAfrica) nohithstanding Security Council Resolution 276 (1970), Advisov Opinion, ICJ
Reports 1971, pp. 23-24, paragraphs 30-31; Western Sahara, I.C.J. Reports 1975, p. 23-25,
paragraphs 28-32.self-governing territory at the time the request was made by the General
Assembly. This fact did not prevent the Court from exercising its advisory
jurisdiction; mainlybecause the General Assemblywas exercisingits powers and
fùnctions with regard to the process of decolonization. In the present situation,
Israel is merelythe Occupying Power of a territory over which it possesses no
legaltitle eitherof sovereigntyor of international administration.
42. The relevant elementsthat must lead the Court to complywith the request
for an advisory opinion despite the opposition of an interested State are the
following:
1. It is a question concerningthe proper exerciseby the General Assemblyof
itsfunctionof supervisionwith regardto the Palestinianterritory;
2. The General Assemblyis not bringingbefore the Court, by the means of a
request for an advisory opinion, adispute or legal controversy, in order, at
a later date, to exercise itshnction in regard to the peacehl settlement of
disputesbetween two States;
3. The object of the request is not to solve a territorialdispute between two
parties;
4. The answer of the Court will help the General Assemblyand the United
Nations in general to perform its fùnctionsin accordance with the Charter
and general internationallaw.
43. The fact that the General Assembly and the Security Council have
determined that Israelis the OccupyingPower ofthe OPT, that the Fourth Geneva
Convention of 1949 is applicable, that the General Assembly has declared the
construction of the Wall as illegal, and that Israel does not agree with these
findings is not a decisive or compelling reason for not rendering an advisory
opinion. The situation issimilarto that which the Court faced with regard to the
opposition of South Africa in the Namibia (South-WestAfrica) advisory opinion
of 1971inwhichthe Court stated:
30Ibid., p. 23, paragr31h "The fact that, in the course of its reasoning, andin order to
answer the question submitted to it, the Court may have to
pronounce on legal issuesupon which radicallydivergent views
exist between South Africa and the United Nations, does not
convert the present case into a dispute nor bring it within the
compass of Articles 82 and 83 of the Rules of Court. A similar
position existed in the three previous advisory proceedings
concerning South West Africa:in none of them did South Africa
claimthat there was a dispute, nor didthe Court feelit necessary
to apply the Rules of Court concerning "a legal question
actually pending between two or more States". Differencesof
views among States on legal issues have existedin practically
every advisory proceeding;if al1were agreed, the need to resort
to the Court for advicewould notari~e".~'
31I.C.J.Reports 1971, pp.23-24,paragr30.
18II. ThePrinciplesandRules of InternationalLaw
Raised by the Advisory Opinion
44. This section addresses the relevant principles andrules of international
law applicable to the question raised by the General Assembly request for an
advisory opinionand shows that the Israeli construction and maintenanceof the
Wall constitute a violation of the obligations embodiedin those principles and
rules.
A. The legal status of the territory precludes Israel from
constructing theWall within it
45. The legal classification of the territory in which most of the Wall is
constructed as OPT has been consistently madeby the General Assemblyand by
the Security Council on many occasion^ .'^doubtedly, this qualification
extends to the West Bank, includingEast Jerusalem, where Israelis constructing
the Wall.
46. One of the reasons invokedby Israel to justi@the construction of the Wall
well beyond the 1949 Armistice Line ("Green Line") is that the West Bank
constitutes a "disputed territory".'' 1n this section, Malaysia will show that,
contrary to this view, three elements characterisethe territory from the legal point
of view:
It is Palestinianterritory
It is occupiedterritory
32Seethe resolutions mentionedsupra,paragraph 86.
33Seethe statementsof the representativesof Israel beforethe Secunty Council and the General
Assembly, respectivelyof 14October 2003(SPV.4841, p. 11) and 8 December 2003(A/ES-
10PV.23, p. 6). See also "Israel's Security Fence", Ministryof Defense, in:
http:lln~~w.seamzone.mod.~ov.ilPages/ENS Geealsopoint5s.fAtnnex 1of the
Report of theecretary-General prepared pursuant to General Assembly resolutionES-10113
(AES-101248,p. 8). It is a territory under international supervision
1. It is not a "disputed territory"
47. According to Israel, "There was never a recognized and legitimate
sovereign in the West Bank. The legal status of these areas remains that of
disputed territ~ry".'~It is not the intention here to discuss whether it is true that
there was "never" a sovereign over the West Bank (it is an undisputablefact the
Ottoman Empire had sovereignty over Palestine before the establishment of
Mandate "A" of the League of Nations). Moreover, the sole fact that a territory
was not - or is no more - under the sovereignty of a particular State, does not
transform it into a "disputed" one. Non self-governingterritories, trust territories
or territories under Mandate were not, or are not, "disputed territories" just
becausetheywere or are not under the sovereigntyof a State.
48. The point here is that the OPT is not a "disputedterritory", as in cases of
boundary or other territorial disputes betweentwo States. Israel hadneverbeen in
possession of the West Bank before 1967. Neither had it claimed it as Israeli
territory before that year. Indeed, even after 1967, the only concrete sovereignty
claim made by Israel with regardto a part of the West Bank hasbeen over East
Jerusalem. Thisclaimwas firmlyrejected by the international community, andthe
Security Councilqualified itas "nul1and ~oid".~~ Up till now, Israel still invokes
the argument that there was no sovereign over the West Bank and that it is a
"disputedterritory",but has not advancedanyconcrete claimof sovereignty.
49. In order to determine whether the OPT is "disputed territory", it is not
particularly helpfùl to chiefly analysethe existence of a "dispute" in general. It
could certainly be said that there are "radicallydifferent views" between Israel
34Ibid.
35Security Council Resolution252 of 21 May 1968; SecuriîyCouncil resolution 263 July
1969;SecurityCouncilResolution298 of25 September1971;SecurityCouncil Resolution476 ofand the United Nations on the legal status of the OPT, to use the wording of the
Court in the context of the claimsmade by South Africa withregard to Namibia
in the quotation above. But this divergence of views has nothing to do with a
dispute over territorial title.The question here is whether the construction of the
Wall in the OPT by Israel can be justified, as Israel contends, because it is a
"disputedterritoryl'.
50. As a Chamber of the Court decided in a territorial dispute,"the existence
of a dispute over [a territory] can, inthe present proceedings,be deduced fromthe
fact of its being the subject of specific andargued claims.The Chamberis entitled
to conclude that, where there is an absence of such claims, there is no real
dispute" .36
51. In the situation under scrutiny, Israel has not made any "specific and
argued claims" at all. At the time of this procedure, it is unknown whether Israel
claims its actual sovereigntyover the West Bank, or part of it, or whether it
simply claimsthe right to "receive"part of the West Bank in "exchange"for the
end of its occupation. If the latter speculation were true, then it would be a
political claim,not alegalone.
52. To make a claim over a territory over which the claiming State
acknowledges that it does not have actual sovereignty is not a legal claimand
hencethe territory is not a "disputed"one from a legal pointofview.
53. Moreover, we are not dealing here with minor or limited boundary
disputes in which two neighbouring States claim the same portion of border
zones. The qualificationof Israel of "disputedterritory" refersto the whole West
Bank. As willbe addressed below,the recognised and legitimatesovereignof this
30 June 1980; the Security Council Resolution 478 (1980) of 20 August 1980 is of particular
relevance.
36Land, Island andMaritime Frontier Dispute (ElSalvador/Honduras: hricaraguaintervenin@.
Judgement,I.C.J. Report1992, p. 555,para326.territory is the Palestinian people. The Israeli qualification of the OTP as
"disputed territory" is in itself a violationof the right to self-determination,since
it impliesthat the OccupyingPower is denyingthe spatial foundation overwhich
the Palestinianpeople must exercise theirrightto self-determination.
54. Finally, even if the OPT were a "disputed territory", still Israel's
construction of the Wall would be similarly unlawful. As the Court has
consistently stated, parties to a territorial dispute should avoid taking unilateral
actionthat mightaggravate or extend the dispute.37
2. It is notIsraeli territory
55. Israel confines its justification, from the territorial perspective, to
maintainingthat the OTP is a "disputed territory". It has never argued that the
construction ofthe Wall isperformedon Israeliterritory.
56. The reason for Israel'sambiguitywith regard to the status of the OPT is
very simple. Israel is incapable of providing evidence to support, or even
invoking, any legal argument at al1to justiG its hypothetical sovereigntyover al1
or parts ofthe OPT.
57. The territory has never been under the sovereigntyof the State of Israel.
Furthermore, as statedabove, Israel never claimedthat the West Bank was Israeli
territory before 1967. Mer that year its position became unclear. Although
contendingto have rightsto this territory, its legislationdistinguishesbetween the
State of Israel and what it calls "Judea and Samaria" (the West Bank, with the
exception of the illegally annexed areas forming part of the municipality of
Jerusalem). Israel has never received a mandate or a trust to administer the
territory on behalf of the international community.At any rate, Israel does nothave any legal title - neither as sovereign nor as administrator - over the OPT.
Militaryforce is the onlybasis for its presence there. As a matter of course, armed
force cannot replace the legal right of the Palestinianpeople to their territory, nor
modi@the statusof a territory under international supervision.
58. As Judge Jessup pointed out only few months before 1967: "It is a
commonplace that international lawdoes not recognize military conquest as a
source of title".38The Declaration of Principles of International Law embodiedin
GA Resolution 2625 (XXV) aErms: "No territorial acquisition resulting fromthe
threat or use of force shall berecognized as legal".In addition,the Declaration on
the Enhancement of the Effectiveness of the Principle of Refraining from the
Threat or Use of Force in International Relations emphasisesthat 'Neither
acquisitionof territory resulting fromthe threat or use of force nor anyoccupation
of territory resulting from the threat or use of force in contravention of
international law will be recognized as legal acquisition or occupation. 9739
Security Council Resolution 242 (1967), explicitly referring to the situation
created by the 1967 Six Day-War, strongly emphasized"the inadmissibilityof the
acquisition of territory by war". This notion of "inadmissibility"applies to any
claimto territorial sovereignty change asa result of the use of force, without any
needto previously determine the identityofthe aggressor or the victim.
59. Even assuming that the argumentof Israel that there was no recognised
and legitimate sovereign overthe territory were admissible, this would notlead to
the conclusion that Israelhas title over it and that, consequently,it is entitled to
construct the Wall. On the contrary, such a contention would constitute a further
reason not to act over this territory as a sovereignor to considerit as a "disputed"
one. These territories havingbeen under international supervision, theyare not a
variety ofterranullius open to occupation. As it willbe explainedbelow, onlythe
37SeeFrontier Dispute, Provisional Measures,Order of 10Januaty 1986,I.C.J. Reports 1986, p.
11;Land andMaritime Boundary Dispute behleen Cameroon and Nigeria (Cameroon c. Nigeria),
Provisionaleasures, order of 15March 1996,I.C.J. Reports 1996, 23,paragraph 42.
38South-West Africa, Second Phase,Judgment, I.C.J. Reports 1966, p.418.
23competent international organs have the capacity to determine or modi@ the
status of suchterritory.
60. Security considerations, conquest or prolonged occupation cannot
constitute bases for any Israeli title. As the Court stated with respect to similar
arguments developed by South Africa regarding Namibia,"[tlhese claims of title,
[...] apart from other considerations are inadmissiblein regard to a mandatory
territ~ry".~~
61. Consequently, the OPT in which the Wall is being constructed is neither
disputednor Israeliterritory.
3. It is Palestinian territory
62. The expression "Palestinianterritory" consistently employedin the above-
mentioned resolutionsis not a mere geographic description. It means that this
territory belongsto the Palestinianpeople.
63. In contemporary international law, not only States, but also peoples -
entitled to self-determination - are holders of territorial sovereignty.What typifies
sovereignty over territory is the right to dispose of it. Undoubtedly, the only
subjectentitledto the right to dispose of the territory in question is the Palestinian
people. This right is not affected by the fact that the people concerned cannot
freely exercise their sovereigntyuntil the time of the effective establishmentof
Palestine as independent State. To have aright is one thing, to be in a position to
exerciseit is another.
64. Striking evidenceof the capacity of the Palestinian people to determine
the fate of that territory is that constituted by the process of negotiations between
39General AssemblyResolution42/22, adoptedon 18November 1987.
40ICJReports 1971, p. 43, para. 83.Israel and the PLO, as the legitimate representative of the Palestinian people,
beginning with the "Oslo agreements". Through this process, Israel itself has
agreed to negotiate with the representatives of the Palestinian people the final
status of the territory, and eventuallythe exchange of territories in a permanent
settlementofthe conflict.
65. The international communityrecognises the right of the Palestinianpeople
to have its independent tat te.A ^State without territory is not conceivable.The
OPT has consistently been recognisedby the international community as the
space on which the Palestinian peopleare entitled to exercise their right to self-
determination.To contend that a people entitledto self-determinationdo not have
a concrete territory is tantamount to denyingthem the possibilityof the exercise
of that right, if not the existence of the right itself. This does not mean that in
some situationsthe boundaries of new States might not be completely delimited,
or even disputed. Yet in such cases, the bulk of the spatialdomain of these States
is easilyidentified. Some boundary disputesthe Court dealt within the past, such
as Burkii~aFasoMali, Bots?z)ai~a/Nanlibiao ,r the recent Canterootî v. Nigeria
case, are tellingexamples.
4. It is a territory under military occupation
66. Israel denies the qualification of the territory as being under military
occupation because Article 2, paragraph 2, of the Fourth Geneva Conventionof
12 August 1949 refers to the "territory of a High Contracting Party" and,
according to Israel, neither Jordan nor Egypt liad sovereign title over the West
Bank or the Gaza Strip respectively.
67. In order to establishwhether the situation existingafler the Six Day-War
of 1967 is one of military occupation or not, a correct interpretation of relevant
41See notably Resolutions 1397 (2002) and 1515 (2003) of the Secunty Council, and 431177of
the General Assembly.conventional andcustomary law is required. Article 42 of the Hague Regulations
annexed to the Hague Convention II of 1899 and reaffirmed inthe Regulations
annexed to the Hague Convention IV of 1907 on the Laws and Customs of War
on Landprovidesas follows:
"Un territoire est considéré comme occupélorsqu'ilse trouve
placéde fait sous l'autoritéde l'armée ennemie.
L'occupation ne s'étendqu'aux territoires où cette autorité est
établieet en mesure de exercer".^^
68. For its part, Article 2ofthe Fourth Geneva Conventionof 1949affirms:
"In addition to the provisions which shall be implemented in
peace-time, the present Convention shall apply to al1cases of
declared war or of any other armed conflict which may arise
between two or more of the High Contracting Parties, evenif
the state of war is not recognizedby one of them.
The Convention shall also applyto al1cases of partial or total
occupation of the territory of a High Contracting Party, even if
the saidoccupation meetswith no armedre~istance."~~
69. These definitionsreflect the state of customary law on the issue. A good
faith interpretation ofthe terms of these treaties in their context and in the light of
their object and purpose leads to the rejection of Israel's allegations.In fact, the
relevant provisionin order to determinethe existence of militaryoccupation and
the applicabilityof the Fourth Geneva Convention is the first paragraph of its
Article 2 and not the second one. Even discussingIsrael'sinterpretation, it must
be recalledthat International HumanitarianLaw does riotdealwith the question of
which party to the conflict is right or wrong in matters of sovereignty. The same
may be said of the main rule of ius ad bellum (or contra bellunz) -Article 2,
paragraph 4 of the Charter ofthe United Nations or the corresponding customary
42DE MARTENS,h!R.G.7'.,2"dseries, Vol. 26, p. 974, for the 2ndHague Convention of 1899,
andibid 3.d series,Vol. 3, p. 499for the 4th HagueConventionof 1907.Tracslation: "Territory
is considered occupied when it is actually placed under the authority of the hostile army. The
occupationextends only to the territory where such authority has been established and can be
exercised."rule. The contention of Israel that the Fourth Geneva Convention is inapplicable
because the territory it took control from the 1967 war was not a "territory of a
High Contracting Party" is not only wrong in law, it is also extremelydangerous
for both the integrity of International HumanitarianLaw and for the maintenance
of internationalpeace and security.
70. Indeed, if one follows Israel'sline of thinking, it would be enough for a
State to claim that a territory under the control of another State is in reality its
own territory in order to deny any violation of the prohibition of the use of force
"againstthe territorial integrity"of other States and also the rules of ius in bel10
related to military occupation. As Oscar Schachter rightly pointed out: "the
expression 'territorial integrity' in Article2 (4) refers to the State which actually
exercises authority over the territory, irrespective of disputes as to the legality of
that authority".44
71. Moreover, according to the Israeli view, territories under a legal status
other than sovereignty,such as trust territories or mandates, would not be covered
by the 1949 Fourth Geneva Convention, since they are not territories "of a High
ContractingParty".
72. The correct interpretation of the term "territory of a High Contracting
Party" of the Fourth Geneva Convention is rather that it refers to any territory
under a Contracting Party'sjurisdiction (sovereignty or administration) or under
its control. Indeed, "under jurisdiction or control" is the wording employed in
more recent international agreements,to avoid any discussion withregard to legal
title or status over a territory for which a State bears internationalre~~onsibilit~.~~
43Convention Relative tothe Protectionof CivilianPersons in Time of War. Geneva, 12August
1949, UnitedNations Treag Series,vol. 75 (1950),No973, pp. 287-417.
44Oscar Schachter, "International Law in Theory and Practice. General Course in Public
International Law".R.C.A.D.I.,1982-V,T. 178,p. 143.
451.e.the Treatybanning nuclear weaponstestsin the atmosphere,in outerspaceand under water
of 5 August 1963(artic1,UNTS,vol.480,n06964, p. 49, the Comprehensive Nuclear-Test-Ban
Treatyof 24 September 1996(article 1,paragraph1,35 ILM(1996),p. 1444),Conventionon the
prohibition of the development, production, stockpilingand use ofchemicalsand to theirAs the Court declared with regard to responsibility: "Physicalcontrol of a
territory, and not sovereigntyor legitimacy of title, is the basis of State liability
for acts affectingother tat tes".^^
73. Thus, the real test in order to establishwhether a territory is under military
occupationistwofold:
1) Were there hostilities?If the answer is positive:
2) Was the party having overall control of the territory at the close of the
hostilitiesin possession of that territory before the outbreak of the hostilities?
If the answeris negative,then there is a rnilitaryoccupation.
74. Without any doubt, there were hostilities in June 1967,after which Israel
became in control over a territory that had not previously beenin its possession.
Hence, the West Bank, includingEast Jenisalem, as well as the Gaza Strip, are
under militaryoccupation.
75. The continuous presence of Israel in the OPT is not based on any legal
title. It constitutesmeremilitaryoccupation as a result ofthe use of force.
76. The fact that Israel has recognised somepowers to the Palestinian
Authority by the "Oslo agreements", and those that followed it, does not modi@
the situation of military occupation. The Occupying Power has retained control
over defence, foreign relations and al1 other powers not transferred to the
Palestinian ~ouncil.~' Indeed, since August 2001 and especiallyMarchIApril
2002 the OccupyingPower has not even respectedthe competencies conferredto
the Palestinian Authoritythrough those agreements. Neither has it respected its
destruction of 13 January 1993(art.1, paragraph 2, 32 ILM(1993), p. 804), Convention on the
Prohibition of the Use, Stockpiling, Production and Transferof Anti-Personnel Mines and on
Their Destructionof 3-4 December 1997(article 5, paragraph 1,36 ILM(19971,p. 151.)
46I.C.J. Reports 1971,p. 54,paragraph 118.
47Seein particular articleVIII,article VI paragraph 2, article IX, paragraph2, article XII ofthe
Declaration of Principles onInterim Self-Government Arrangements, Washington D.C.,13
September 1993,and ArticleVI1(5) ofthe AgreedMinutesto this Declaration.commitments regarding withdrawingof troops, redeploying its armedforces in
those areas ofthe OPT fromwhichit had previouslywithdrawn.
77. Thus, it is an uncontroversial fact that Israelis in overall control of the
OPT. The mere fact of being ableto construct the Wall in Palestinianterritory is
clear evidenceof this control.
78. The evident weakness of Israel's legal arguments,if not its lack of any
legal argument at all, hasled Israel to indefinitelyprolong the present situation of
occupation. The protracted period of military occupation cannot be used as a
meansfor creating rightsfor the OccupyingPower. Militaryoccupation is notper
se a legal title of administration. It is a de facto regime. The situation of
occupation will only end with the liberation of the whole territory, through the
exercise of the Palestinian people's rightto self-determination,normallyby means
of an agreement between Palestine and Israel settlingal1the territorial issues.The
only possibility of a unilateral end of the military occupation by the Occupying
Power is by its complete and unconditional withdrawalfrom the whole territory.
The military occupation by a foreign power of a territory having an international
status and over which a people has the right to self-determinationcannot continue.
Israelimilitaryoccupation is illegal andmust end.
5. It is a territory underinternationalsupervision
79. The OPT is also a territory under international supervision, that is a
territory the status of which has been determined by international law. This
category applies to non self-governing territories, trust territories and former
mandates. The United Nations has special responsibilitiesover such territories
and member States have the obligationto CO-operatewith the Organisationin the
accomplishmentof its duties.80. The West Bank, includingEast Jerusalem, andthe Gaza Strip,were part of
the territory under Mandate "A of the League of Nations. Resolution 181 (II) of
the General Assemblydid not include them in the territory to be granted to the
Jewish State. The West Bank and the Gaza Strip formed part of the territory
originally acknowledged to belong to the Arab State, with the exception of the
special internationalised status for the whole Jerusalem area. As is well known,
only one of these States was created after the unilateral withdrawal of the
mandatory Power. Until the other envisaged State is created, the situation of the
remainingterritory under mandate remains of internationalconcern. This territory
has neither become lerra nuIliu nor can the General Assembly abandon its
functionsand powers over it.
81. Territories under international supervision are subordinated to the
decisions of the competent international organs dealing with them. Any attempt
by a State, including administeringpowers - either de itrre or defacto ones - at
unilaterallymodieing the status of these territories has consistentlybeen rejected
by the competent organs of the United Nations, includingthe International Court
of ~ustice.~'Similarly,measures adopted by administeringor occupying Powers
aimed at preventing the exercise by the concerned people of their right to self-
determination, or at renderingthe realisation of the right more diEcult, has also
been consideredas illegal.
82. In this regard, resolutions of the General Assembly related to these
questions cannot be seen as mere recommendations. Given its function as the
main supervisory organ of the United Nations with regard not onlyto non self-
governing territories and trust territories but also former mandates whose
international status has not come to an end, resolutions of the General Assembly
have an obligatory character when dealing with questions touching these
territories withinthe competenceof that organ. Asthe Court has stated: "it would not be correct to assume that, because the General
Assemblyis in principle vested with recommendatorypowers, it
is debarred from adopting, in specific cases within the
framework of its competence, resolutions which make
determinationsor have operativedesign".49
83. This is also the case for relevant General Assembly resolutions dealing
with the Palestinian question, since they relate to a territory over which it
performssupervisoryfunctions,given its internationally delineatedstatus.
84. The same conclusion can be reached with regard to relevant Security
Council resolutions. Whenfalling within the competence of the Organisation in
matters relatedto the status of the territories under international supervision,such
resolutions have a mandatory character by virtue of Article 25, irrespective of
whether theywere adopted under Chapter VI1or not, as the Court also confirmed
in 197 1.50
85. Hence, member States are bound by the determinations made by the
General Assembly and the Security Council regardingthe territorial status or
other related matters in Palestine. This refers in particular to the characterisation
of the situation as OPT, the applicabilityof the Fourth Geneva Convention, the
illegality of the settlements establishedby Israel, and the unlawfulness of the
annexationofEast ~erusalem,amongothers.
86. The following resolutions are of particular relevance in these fields:
Security Council resolution 242 of 22 November 1967, Security Council
resolution 259 of 27 September 1968; Security Council resolution267 of 3 July
1969; Security Council resolution 27 1 of 15 September 1969; Security Council
Resolution 298 of 25 September 1971; Security Council resolution446 of 22
March 1979; Security Council resolution 452 of 20 July 1979; Security Council
48
See in particular, but not exclusively, the abundant practice of different organs of the United
Nationswith regard to the attempts made by South Africa tomodifj the status ofNamibia (South-
49stAfrica).
I.C.JReports 1971p. 50,para. 105.resolution 465 of 1March 1980, Security Council resolution468 of 8 May 1980;
Security Council469 of 20 May 1980; Security Council resolution471 of 5 June
1980; Security Council resolution 476 of 30 June 1980; Security Council
resolution 478 of 20 August 1980; Security Council resolution 484 of 19
December 1980; Security Council resolution592 of 8 December 1986; Security
Council resolution605 of 22 December 1987;Security Council resolution607of 5
January 1988; Security Council resolution636 of 6 July 1989; Security Council
resolution 672 of 12 October 1990; Security Council resolution904 of 18March
1994; Security Council resolution 1322 of 7 October 2000; Security Council
resolution 1435 of 24 September 2002; General Assembly resolution 2546
(XXIV) of 11 December 1969; Resolution 3215 of 28 October 1977, General
Assembly resolution 46/47 of 9 December 199 1; General Assembly resolution
46176of 11December General Assemblyresolution 5111 34 of 20 February 1997;
General Assembly resolution 52/66 of 10 December 1997; GeneralAssembly
resolution 551130of 8 December 2000; General Assemblyresolution 55/131 of 8
December 2000; General Assembly resolution 551132 of 8 December 2000;
General Assembly resolution 551133 of 8 December 2000; General Assembly
resolution 551209of 20 December 2000; General Assembly resolution 56160of
20 November 2001; General Assembly resolution 56/61 of 20 November 2001;
General Assembly resolution 56/62 of 20 November 2001; GeneralAssembly
resolution 561204of 21 December 2001 ; General Assemblyresolution ES-1011 0
of 7 May 2002; General Assembly resolution ES-10111 of 5 August 2002;
General Assembly resolution 571110 of 3 December 2002; 571125 of 11
December 2002; General Assembly resolution 571126 of 11 December 2002;
571127 of 11 December 2002; General Assembly resolution 571188 of 18
December 2002; 571198 of 18 December 2002; General Assembly resolution
571269 of 20 December 2002; General Assembly resolution ES-10113 of 21
October 2003.
5I.C.J. Reports 1971,p.52-53, 114..
3287. The international supervisionof this territory will only cease with the
establishmentof an effectiveindependent Palestinian State, that is, when the final
status ofthe whole territory of the League ofNations Mandate willbe completed.
B. The Wall constitutes adefacto separationline violatingthe
obligation torespect the 1949Armistice Line ("Green Line")
88. Israel calls the Wall a "security fence". It formally contends that its sole
purpose is "to provide security", that it "is not a border" and does not have a
permanent character. It also argues that the "fence" does not follow the 1949
Armistice Line(the Green Line) because the latter is not a bo~ndary.~~ In fact, the
construction and maintenance of the Wall aimsat the establishment of a new de
facto border.
89. As a matter of course, the Walldoes not and cannot constitute a boundary,
since a boundary requires the agreement of both neighbours. No State can
unilaterally determine a territorial boundary. Strictly speaking, aboundary is a
separation line between two States or other entities having an international
character (such as trust territories or mandates), establishedby agreement or by
other legaltitle. The Court, as well as arbitral tribunals,refers to these boundaries
when it invokes the principle of stabilityof boundaries." In its general, broader
sense, any separation line, no matter the nature of the territories it divides, is
sometimes alsocalled a boundary. Separationlines other than boundary lines are,
for instance, armisticelines, or provisionallines definingthe limits of jurisdiction
ofthe relevant parties, pending afinaldecisionbetween themasto boundaries.
See Report of the Secretary-General prepared pursuant to General Assembly resolution ES-
10113,UnitedNations,Doc.AIES-101248,24 November2003, p. 8, paragraph5.
52See Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion,
P.C.I.J.eries B N012, p. 20; Templeof Preah Vihear,Merits, Judgment, I.C.J. Reports 1962,p.
34; Territorial Dispute (LibyanArab JamahiriyaKhad), Judgment,I.C.J. Reports 1994,p.37, par.
72-73;Egypt-IsraelArbitral Tribunal,Anlardin Boundary DisputeConcerningthe TubaArea, 27
I.L.M. (1988), pp. 1489-1490.90. By the construction of the Wall, the Israeli Government is physicallyand
unilaterallydemarcating what has not beenthe object of agreement withthe other
interested party. Even more seriously, it is doing so within the territory of the
other party. Moreover, such extreme physical demarcation like the Wall being
constructed by Israel followsvery few modelsofboundaries aroundthe world.
91. Even if Israel itself does not claim that the Wall is a boundary, this
construction establishes a separation line. It is clear that the situation on the
ground willbe radicallydifferent fromone side of the Wallto the other. The same
freedom of movement for persons within Israel is appliedto the areas of
Palestinianterritory between the Green Line andthe location of the Wall,whereas
persons in the West Bank east ofthe Wall require anauthorisationto cross to the
other side. Like boundariesor other separation lines, one of the main hnctions of
the Wall is to materially limit the free movement of people on one side of the
Wallto the other.
92. Israel itself acknowledgesthe reality of the Wall as being a new separation
line. In its attempt atustifjing the legalityof the Wall,the officialweb siteof the
Israeli'sMinistry of Foreign Affairs States: "Only a small number of Palestinian
villageswillbe included onthe western, orIsraeli, side of the securityfelz~e."~~
93. This act of unilateral demarcation by Israel has been followedby the
passing of legislation that is typically designed for frontier zones. The "Order
Concerning Security Directives (Judea and Samaria) (number 3 78), 1970
Declaration Concerning the Closure of Area Number ~12103(Seam Area)"
adopted by the "commander of the IDF forces in the Judea and Samaria region"
on 2 October 2003 makes clear that Israeliscan enter the so-called "seam area",
53Emphasisadded. "Israel Diplomatic NetwT.he Anti-TerroristFence.Conceptand
Guidelines: ALineof Defense, not a Border". Availablaet:
http://securihfence.mfa.nov.il/mfm~~veb/main~do~ument.a~p?Sub 18ectID=45392
&MissionID=45whereas other people, including Palestinians residingin the area, will require a
permit. According to Article 3.a of this Declaration, "No person will enter the
seam area and no one will remain there", whereas Article 4.a. states that "Article
3 of the declaration will not be applicablefor: a. An Israeli, b. A person given a
permit by me or by someone authorized by me to enter the seam area and to
remainthere" .54
94. Indeed, a simple reading of any map depictingthe line followed by the
Wall clearlyshows that the main goal of this construction is to incorporate, into
the territory of Israel, the major colonies settledby Israel in occupied Palestinian
territory, in order to constitute a singleterritorialunit."
95. The figures mentionedby the report of the Secretary-GeneralKofi Annan
are illustrative:
"Based on the route on the officia1map, includingdepth barriers
and East Jerusalem, approximately975 square kilometers, or
16.6 per cent of the entire West Bank, will lie between the
Barrier and the Green Line. Thisarea is home to approximately
17,000 Palestinians in the West Bank and 220,000 in East
Jerusalem. If the full route is completed, another 160,000
Palestinianswill livein enclaves, areas where the Barrier almost
completely encircles communitiesand tracts of land. The
planned route incorporates nearly 320,000 settlers, including
approximately178,000in occupiedEast ~erusalem".~~
96. Israel argues that since the "Green Line" is an armistice line, it does not
represent a boundary line. This is true. The OccupyingPower does not seem to
realise that a position coherent with this assertion would lead to the affirmation
that territories west of the Green Line would have to be considered as "disputed
7&Lan~uaneID=O&StatusID=O&Docum eiitd o=-21,anuary 2004(Acertifiedcopyof
this documenthas been providedto the Registrar).
54IsraeliDefenseForces,Order Conceming SecurityDirectives(Judeaand Samaria) (number
378), 1970,Declaration Concerning the ClosureofArea Numbers/2/03(SeamArea), availableon
http://domino.un.orn/UNISPAL.NSF/O/c1614997eOba34~885256ddc00146a?OpenD…
(A certifiedcopy ofthis document hasbeen providedto the Registrar).
5sSeeAnnexes 1and 2 to this Written Statement.territories". Palestine has even stronger arguments than Israel to invoke this
qualification,since the Green Line runs fùrther east to the boundary between the
Jewish and the Arab States established by GA Resolution 181 (II). The
Palestinianpeople and its legitimateauthorities have nevertheless adopted a more
moderate and reasonable position: they only claim as a territorial unit for their
State, the occupied territories after the 1967 war, that is, the Gaza strip and the
West Bank,includingEast Jerusalem.
97. The fact that there does not exist an agreed boundary between Israeland
Palestine does not mean that either one or the other entity are entitled to perform
acts such as the construction of the Wall outside its territory. There exist a
considerable number of boundaries around the world that are not completely
delimited. The non-existence of concrete established boundaries does not mean
that each side is free to perform acts in the territory of the other. Even if there is
no established permanent boundary, armistice lines,de facto or status quo lines
ought to be respected.
98. An armistice line is indeed a temporary separation line. The Occupying
Power draws the wrong conclusionabout the temporary characterof an armistice
line. Armistice lines must be respecteduntil a final agreement is reached. Until
that time, armisticelinesfùlfilfunctionsakinto a border.
99. The 1949 Armistice Demarcation Line was adopted pursuant to Security
Council Resolution 62 of 16 November 1948,that called upon the establishment
of an armistice in al1regions of Palestine, including"the delineationof permanent
armistice demarcation lines beyond which the armed forces of the respective
parties shallnot move".By the General Armistice Agreementof 3 April 1949,the
parties agreed that "no element of land, sea or air militaryor paramilitaryforces
of either Party, includingnon-regular forces, shall commit any warlike or hostile
56Report of the Secretary-Generalpreparedpursuantto GeneralAssemblyresolution0113,
UnitedNations, Doc.AIES-10/248,24 November 2003,p. 3.
36act against the rnilitary or paramilitary forces of the other party, or against
civiliansin territory under the control of that party, or advance beyond or pass
over for any purpose whatsoever the Armistice DemarcationLines". Article VI
provides that the Armistice Demarcation Lines "shall be subject to such
rectifications asmay be agreed upon by the Parties". Article XII, paragraph 2, of
the same General Armistice Agreement stipulatedthat it "shall remain in force
until a peaceful settlementbetween the Parties is achievedU.57
100. Nothing that happened afler 1949, includingthe 1967 war, the Jordanian
administrative disengagement of the West Bank of 31 July 1988, the peace
negotiations between Israeli and Palestinianauthorities and the Treaty of Peace
between Israel and Jordan of 26 October 1994, has changed the 1949
Demarcation Line.The 1967 Six Day-Wardid not erasedthe Green Line. Simply,
the territory beyond it became military occupied by Israel. The disengagement
announcement of King Husseinof 31 July 1988 aimed at supporting the struggle
of the Paleçtinian peopleto put an end to the occupation of the territory." The
Israeli-JordanianTreaty of Peace of 1994,while stipulatingthe boundary between
the Parties, clearly determinedthat this is done "without prejudiceto the status of
anyterritories that cameunder Israelimilitarygovernrnentcontrol in 1967".~~
101. In interpretingthe Principleof the prohibitionof the threat or use of force,
the Declaration of Principles of International Law embodied in GA Resolution
2625 (XXV) mentionsthe duty of States not to violateboth existing "international
boundaries" and "internationallines of demarcation, such as armistice lines". The
temporal character of armistice lines does not authorise one of the parties to go
outside them to unilaterallyerect a new separationlinebetween the two territories
separated by the armistice line.With the construction of the Wall, what Israel is
''UNTS1949,vol. 42, no656,, pp. 304-320.
58Seethe entire text ofthe statementofKing Husseinon
http://~~%~~~~.kinghussein.gov. htmo. speeches-letters.
59Article 3, paragraph 2. 34I.L.M.(1995),p. 47.doing is physically shifiing the only existing separation line having been agreed
upon:the 1949 Armistice Line.
102. Israel itself recognises that armistice lines fùnctionally serve like
boundaries. In the Israeli Ministryof Foreign AEairs website page on the "Israel's
SecuntyFence", it is stated that:
"when Israel withdrew from southern Lebanon, in fùlfilmentof
UN Security Council Resolution 425, the UN delineated the
border between Israel and Lebanon. Israel moved its security
fence, sometimes onlya few meters, to comply with the new
border".60
103. It is not theurpose here to analysethe accuracy of this statement, but to
show that Israel itself is referringto an armisticeline, the one of 23 March 1949
separating Israel andLebanon, as a "border". Furthermore, it refers to the "fence"
existingbetween Israel andLebanon as followingthe border.
104. In spite of the fact that Israelis oficially invoking securityreasons for the
construction of the Wall and declaring that the Wall is a temporary measure, its
Government is at the same time discussingplans for what it calls a "unilateral
separation" or "Disengagement Plan", by way of withdrawal of Israeli armed
forces from the remaining Palestinian enclaves createdonce the construction of
the Wall will be completed. This is anotherpiece of striking evidence ofthe
intentions of Israel to establishthe route followed by the Wall as a separation line
or adefacto boundary.
105. Further evidence of this objectiveis found in thevery recent statementof
explanation of this plan byIsrael's PrimeMinister Ariel Sharon. The relevant part
ofthis statement reads as follows:
"The "Disengagement Plan" will include the redeployment of
ZDF forces along new security lines and a change in the
60Emphasis in the original. Availahtt~:ll~~~w.mfa.~ov.il/mfa/~o. asitdMFAHOo170,
on 13January 2004 (A certifiedcopyofthis documenthas been providedto the Registrar).
38 deployment of Settlements, which will reduce as much as
possible the number of Israelis located in the heart of the
Palestinian population. We will draw provisional security lines
and the IDF will be deployed along them. Security will be
provided by IT'F deployment, the security fence and other
physical obstacles. The "Disengagement Plan" will reduce
friction between us and the Palestinians (...). This securityline
will not constitute the permanent border of the State of Israel,
however, as long as implementation of the Roadmap is not
resumed, the IDF will be deployed along that line. Settlements
which will be relocated are those, which will not be included in
the territory of the State of Israel in the framework of any
possible future permanent agreement. At the same time, in the
framework of the "Disengagement Plan", Israel will strengthen
its control over those same areas in the Land of Israel whichwill
constitute an inseparable partof the State of Israel in any future
agreement (...).Israel will greatly acceleratethe construction of
the security fence (...).Obviously,through the "Disengagement
Plan" the Palestinians will receive much less than they would
have received through direct negotiations as set out in the
~oadma~".~'
106. From this statement clearly emerges the intention of Israel to decide
unilaterallyupon the separation line between it and the Palestinian people,as well
as itswillto annex partofthe West Bank.
107. For the reasons stated above, a provisional separation line can be
establishedby agreement, or by a decision of a competent international organ. In
only one case can it be established unilaterally: ifit is executed within its own
territory. It must be recalled that the Berlin Wall, another odious symbol of past
epochs, was constmcted inside the territory of East Berlin. Constructions by the
German Democratic Republic alongthe intra-German border, akin to the Israeli
Wall,were also carried out inEast Germanterritory.
108. Indeed, there is no reason to discuss here whether the construction of the
Wall is justified on the grounds of security. The question at issue is not whether
61 Prime Minister's Speech at the Herzliya Conference, 18 December 2003, text available at:
http:llw\~w.vmo.~ov.il(A certifiedcopyofthis documenthasbeenprovided to the Registrar).for security reasons Israel is compelledto unilaterallyconstruct a Wall. If it were
the case, it should be constructed on Israeli territory. The advisory opinion
requested to the Court does not concern any such construction that could be
undertaken inside Israel, but only the Wall that is being constructed by Israel in
the OPT. Even if the intention were to construct the Wall along the exact path of
the 1949 Armistice Line (the Green Line), it would require agreement between
the two parties. In no case can Israel construct the Wall beyond the Green Line
without the consent of the legitimate holderof the territory of the West Bank, the
Palestinian people,through their legitimate authorities.A striking example of the
need of agreement between the parties for the construction and maintenanceof a
structure of this kind can be found in the Palestinian-Israeli relationship
themselves. ArticleXXIII, paragraph 3 of the Agreement on the Gaza Strip and
the Jericho Area readsas follows:
"The Parties agreed that, as long as this Agreement is in force,
the security fence erectedby Israel around the Gaza Strip shall
remain in place and that the line demarcated by the fence, as
shown on attachedmapNo. 1,shallbe authoritative onlyfor the
purpose of this ~~reement" .62
109. Hence, by constructing the Wallbeyond the 1949 Armistice Line, Israel is
unilaterally establishinga new separation line, violating its obligationto respect
the former.
62Israel-Palestine LiberaOrganisation,AgreementOnThe GazaStripAndTheJericho Area,
May 4, 1994,article23, paragraph4, Annex,Article4, paragraph 1andattached maps,33I.L.M.
(1994), pp. 622-720.C. TheWall infringes the territorial integrity of Palestine
110. In contemporaryinternationallaw States have the obligationto respect the
territorial integrity notonlyof other States, but also ofthe countries ofthe peoples
who have not been able to achieve statehood, i.e. who are under colonial mle or
foreign occupation.
111. Numerous United Nations resolutions, both those having a general
character and those referringto particular situations,insistupon the respect of the
territorial integrityofthe countries ofthe peoples entitledto self-determination.
112. Paragraph 4 of GeneralAssemblyResolution 1514 (XV) declares that "Al1
armed action or repressive measures of al1 kinds directed against dependent
peoples shallcease in order to enable them to exercise peacefullyand freely their
right to complete independence, andthe integrity of their nationalterritory shall
be respected". Paragraph 6 of the sameResolution readsas follows: "Anyattempt
aimed at the partial or total disruption of the national unity and the territorial
integrity of a coztiltryis incompatible with the purposes and principles of the
Charter of the United ~ations".~~ ~imilarl~, GA Resolution 2625 (XXV)
proclaims: "Every State shall refrain from any action aimed at the partial or total
disruptionofthe nationalunityof ary State or
113. In the past, the United Nations took action to preserve the territorial
integrity of different peoples. To quote only one example, Security Council
Resolution 389 (1976) of 22 April 1976 in its first operative paragraph "Calls
upoiz al1States to respect the territorial integrityof East Timor, as well as the
inalienable right of its people to self-determination". Particularly,the General
Assembly reaermed "the inalienable right of the peoples of Namibia and
Zimbabwe, of the Palestinian people and of al1peoples under alien and colonial
63"Declarationon the Granting of Independence to ColonialCountries and Peoples". Emphasis
added.dominationto self-determination, national independence,territorial integrity, and
nationalunity and sovereigntywithout external interferen~e".~'General Assembly
resolution 431177of 15 December 1988,for its part, "afirms the need to enable
the PalestinianPeople to exercise their sovereigntyover their territory occupied
since 1967". General Assembly resolution 52/67 of 10 December 1997, afirms
"the need to preserve the territorial integrity of al1 the Occupied Palestinian
~erritory".66
114.
Thus, Palestine, even ifit has not fullyachieved statehood and still being
under foreign occupation, is entitled to the respect for its territorial integrity.
Numerous United Nations resolutions recognise thisright.67Moreover, from 1972
the General Assembly afirmed the right of the Palestinian people to permanent
sovereigntyover "national" or "natural" resources inthe occupiedterritorie~.~'
115. The same can be said in Israeli-Palestinianconventional practice. In the
Declaration of Principles on Interim Self-GovernmentArrangements signed in
Washington DC on 13 September 1993, Israel and the PL0 agreed to "view the
64
65Emphasis added.
General Assembly Resolution33/24 of 29 November 1978, Importance of the universal
realizationofthe right ofpeoplesto self-determinationandofthe speedygranting ofindependence
to colonial countries and peoples for the effectiveguarantee and observance of human rights,
amongst other.
66Seealso GeneralAssemblyResolutions53/56of 3 December1998 ,54/79of22February2000,
551133of 8 December 2000and 56/62of 14February2002("Israeli practicesafTectingthe human
rights of the Palestinian people in the Occupied Palestinian Temtory, including Jerusalem",
stressing "the needto preservethe temtonal integrityofal1OccupiedPalestinian Temtory and to
guarantee the freedom of movement of persons and goods within the Palestinian temtory,
including the removalofrestrictionson movementinto and fromEast Jerusalem,and the freedom
67 movementto and from the outsideworld".
General Assemblyresolution 52/67of 10December 1997(69~Plenary meeting): "theneed to
preserve the territorial integrity of al1the Occupied Palestinian Territory". General Assembly
resolution 431177of 15 December 1988 "afirms the need to enable the Palestinian People to
exercisetheir sovereigntyovertheir temtory occupiedsince 1967".
From 1972 the General Assemblyaffirmed the right of the Palestinian people to permanent
sovereignty over "national" resources in the occupied Arabtemtories (see e.g. GA Res. 3175
(XXVIII, 17 December 1973) and (from 1981) in the occupied Palestinian and Other Arab
Territories (see.g. ARES1381144, 19 December 1983). See also General Assembly resolution
571269 of20 December2002.West Bank and the Gaza Strip as a single territorial unit, whose integrity will be
preserved duringthe interimperiodt'.6g
116. The construction and maintenance of the Wall, since it separates parts of
the Palestinianterritory in the West Bank, clearly constitutes a violation by Israel
of its obligationto respect the territorial integrityof Palestine.
D. The Wall infringes the right toself-determinationof the
PalestinianPeople
117. The right of peoples to self-determination is one of the "essential
principlesof contemporaryinternational la^".^ I' should be puton record that the
Court has played a major role in the determination ofthe legal nature, scope and
legal consequences of the right of peoples to self-determination through the
esercise of its advisoryjuri~diction.~~
118. The United Nations and al1its members have recognisedthe Palestinians
as constituting a people who are thus entitled to political self-determinati~n.~'
Even Israel has recognised this. Article IIIof the 1993 Declaration of Principles
afirms "the legitimaterights of the Palestinian people".73Israel no longer denies
- although only formallyfor the time being -the right of the Palestinianpeople to
have theirown State.
119. In order to exercise their right to self-determination, peoples are
recognised as havinga territorial setting. The consistent practice of the United
69ArticleIV, reproducedi32 ILM (1993),p.1528.
70East Timor(Portugalv.Australia), Judgment,ICJReport1995,p. 102,paragraph29.
71See the Namibia and Western Saharaadvisoryopinions, resp.ICJ Report1971,pp. 31-32,
aragraphs52-53 andICJReports 1975, pp.31-33,paragraphs54-59.
' On 10December 1969,the GeneralAssemblyrecognired"the inalienable rightsof the people
of Palestine" (GA Res.2535/i3,XXIV). Other key GAresolutions includeGA Res. 2672lC
(XXV)and 3236 (mX).Nations in this field shows that whenever a people exercises its right to self-
determination,it has a defined territorialsphere for this exercise.
120. The consistently recognised territorialspace for the exercise of the right to
self-determinationof the Palestinian people isthe Gaza Strip and the West Bank,
including East Jerusalem. Countless United Nations resolutions acknowledge
thi~.~~Even Israel did so through the adoption of the above-mentioned 1993
Declaration of Principles, which repeatedly refersto "the PalestinianPeople inthe
West Bank andthe Gaza tri^".^ T'he Wall seriously infringeson the territorial
integrity of Palestine which already constitute a very fragile and small entity
within which the right to self-determination and sovereignty over natural
resources areto be exercised. As SpecialRapporteur John Dugard noted:
"The rightto self-determinationis closelylinkedto the notion of
territorial sovereignty.A people can only exercise the right of
self-determination within a territory. The amputation of
Palestinian territory by the Wall seriously interferes with the
right of self-determination of the Palestinian people as it
substantially reduces the size of the self-determination unit
(alreadysrnall)withinwhichthat rightisto be exerci~ed."~~
E. The Wall infringes the enjoyment of human rights
121. As inthe case of the Fourth Geneva Convention, Israeltakes the viewthat
the two International Covenants on Human Rights do not applyin the OPT, since
there is a situation of armed conflictin the area. Here one cannot but note that
Israel adopts a very contradictory position in relation to its respect for
international human rights law. On the one hand, when it has to comply with
human rights provisions regardingthe population of the Palestinian territory, it
argues that these rules are not applicable since they are superseded by
73Art. III, reproducedin 32I.L.M.(1993),p. 1528.
74Seeparagraph 86 and note72.
75NotablyArticles 1and 3.
76UNDOCE . /CN.4/2004/6,8 September 2003, p.8, para. 15.international humanitarian law. Onthe other hand, when under the obligation to
apply humanitarian law, Israel denies the applicability of the Fourth Geneva
Convention,despitehavingratifiedit.
122. Malaysia does not share this view onthe non-applicabilityof international
human rights law. In this regard, Malaysia wishes to refer (among other
documents) to the Concluding Observationsof the Human Rights Cornmitteethat
the applicability of international humanitarian law does not preclude the
applicability ofthe Civil and Political Rights Covenant, including Article 4 which
covers situations of public emergency which threaten the life of the nation.77
Similarly,Article 2 (1) of this Covenant holds State parties accountable for the
actions of their authorities outside their own territories but subject to their
jurisdiction, includingin occupiedterritories.
123. Asthe Court stated initsNantibia advisory opinion:
"By.. .occupying the Territory without title, South Africa incurs
international responsibilities arisingfrom a continuing violation
of international obligation.It also remains accountablefor any
violationsofthe rights of thepeople of~amibia."~'
124. Malaysia would also liketo refer to the numerous reports of other UN
organs and agencies, including those of the UN Secretary-General, the
Commission on Human Rights and UNRWA, as well as to the reports of the
Special Rapporteur of the Commission on Human Rights on the situation of
humanrightsinthe OPT.
77SeeHumanRights Committee,Considerationofreports submittedby StatePartiesunder Article
40 ofthe Covenant.Israel, CCPWC0/78/ISR,21 August2003. Seealsothe General Comment no.
29 [72]on Article4, adoptedon24 July2001,CCPWCRl/Rev. 1IAdd.11:"Dunng armedconflict
whether international or non-international, rules of international humanitarian law become
applicable and help, in addition to the provisions in article 4 5paragraph 1, of the
Covenant,to prevent the abuseofa State's emergencypowers"(para. 3,general Commentno. 29).
'*Legal Consequencesfor Statesof the Continued Presence of South Africa in Namibia (South-
Il'estAfrica) notwithstanding Security Council Resolution 276 (1970),Advisory Opinion, ICJ
Reports 1971,para. 118.125. In his September 2003 report the Special Rapporteur recorded his grave
concern regardingthe construction of the Wall.He indicatedthat the construction
of the Wall amounts to "a visible and clear act of territorial annexation" and
resultsin"amputation of Palestinianterrito~y''.~~
126. In this way, as was stated above, the Wallfirst of al1seriously infringeson
the right to self-determination, recorded in Article 1 of both Human Rights
Covenants and identifiedby the International Court of Justice as a right of "the
ergaomnescharacter". 'O
127. Apart from infringingon the right to self-determination,the Wall is bound
to have a deeply-seated impacton the enjoymentof the civiland political rightsof
the Palestinian people. Freedom of movement is becoming even more severely
restricted than it already was." Many Palestinianswill live in enclaves or are
being forcedto move out of their houses in the affected areas to what remains of
~alestine.'~It is no exaggeration to fear for a new generation of refùgees or
internally displaced persons. Moreover, the already tenuous viability of an
eventual Palestinianstate is evenfùrther undermined.
128. Thirdly, the Wall also has a serious impact on economic, social and
cultural human rights. Many Palestiniansare ordered oficially or othenvise de
facto compelled to close their shops and enterprises. There is immense direct
harm to property, natural resources such as fmit and olive trees and fertile land,
endangeringthe right to food and accessto freshwaterresources. Furthermore,the
Wallseriouslyrestricts accessto health andeducation fa~ilities.'~
79UNDoc.E/CN.4/2004/6,8 September2003, p.6, para. 6 andp. 8, para. 15.
80East Timor(Portugalv.Australia),Judgment,ICJ Reports 1995,p. 102,paragraph 29.
81SeeArt. 12,para. 1ofthe International Covenanton Civil and PoliticalRights, 1966.
82SeeReportofthe Secretary-Generalofthe UnitedNations,AIES-10/248,24 November2003,
Fara. 8.
ibid., e.g., para. 24 and para. 27.F. The Wall violates principles andrules of international
humanitarian law
129. As the Occupying Power, Israel is under an international obligationto
observe international humanitarian law, particularlybut not exclusively those
codified inthe Fourth Geneva Conventionto which Israel has been a party since
1952. As formulatedby the Court in its Advisory Opinionon TheLegality of the
Threat or Useof Nuclear Weapons:"These rules indicatethe normal conduct and
behaviour expectedof tat tes."'^
130. The Court also stated in this Advisory Opinion that a main part of
international humanitarian law of a non-derogatory nature:
"It is undoubtedlybecause a great many rules of humanitarian
law applicable in armed conflict are so fundamental to the
respect of the human person and "elementaryconsiderations of
humanity" as the Court put it in its Judgment of 9 April 1949in
the Corfu Channel case (ICJ Reports 1949, p. 22), that the
Hague and Geneva Conventions have enjoyed a broad
accession. Furtherthese fundamentalrules are to be observedby
al1States whether or not they have ratified the conventions that
contain them, because they constitute intransgressible principles
of internationalcustomary la^."^'
131. On various occasions both the General Assembly andthe Security Council
have affirmed the applicabilityof the Fourth Geneva Convention to the OPT.'~
Similarly,in 2001 the Conference of the High Contracting Parties to the Fourth
Geneva Convention declared the Convention to be applicable.87In this way it
endorsed the position held for long by the International Committee of the Red
Cross.
84ICllReports 1996, p. para. 82.
85Ibid.,p. 2para. 79.
86See,e.g., A/RES/51/(1996) 52/65(1997)53/54(1998) 54/77(1999a)nd 55113(2000);
S/RES/90 (41994and 1322(2000).
87Declaration of the Conference ofHigh Contracting Partiesto the Fourth Geneva Convention,
Geneva,5December2001, para. 3.132. As reviewed above, it is a well-known factthat Israel considersthe Fourth
Geneva Conventionto be not applicableto the OPT in view of the legal status of
the territory before 1967.Whileno other High Contracting Party shares this view,
it is relevantto note that Israel declared thatit would implementthe provisions of
the Convention on a defacto basis. Malaysiajoinsthe international communityin
demanding that Israel observes fully the Fourth Geneva Convention in al1areas
under occupation - Gaza Stripand the West Bank, includingEast Jenisalem.
133. Malaysia also does not share the view that, as a result of the Oslo
Agreements, in parts of the OPT, especiallythe autonomous areas (also known as
the "A-areas"), Israel no longer exercises jurisdiction andcontrol. Under these
agreements, the ultimate legal control over the OPT still rests with Israel as the
Occupying Power. Here it is relevant to recall that Article 47 of the Fourth
Geneva Conventionprovides that:
"Protected persons who are in occupied territory shall not be
deprived, in any case or in any manner whatsoever, of the
benefits of the present Conventionby any change introduced, as
a result of the occupation, into the institutionsor government of
the said territory, nor by any agreement concluded by the
authorities of the occupied territories and the occupyingPower,
nor by any annexation by the latter of the whole or part of the
occupiedterritory."
134. Malaysia endorses the findingsof the UN Commissionof Inquiry that the
Israeli occupation regime still exists inal1 areas of the OPT and that hence
international humanitarian law, includingthe Fourth Geneva Convention, is
applicablewithout any restriction^.^^
135. The construction of the Wall is in various respects at odds with
fundamental principles of international humanitarian law. First, by the
construction and the seizure of land and property, a huge number of Palestinians
will be severely affected and sufferas a result of the construction and the
8UN DOC.E/CN.4/2001/12 1, 16March 2001.
48accompanyinguprooting of their living environmentand daily life.This is in clear
violation of Article 50 of The Hague Regulations (1907 Hague Convention IV)
which stipulates:
"No general penalty, pecuniary or othenvise, shall be inflicted
upon the population on account of the acts of individualsfor
which they can not be regarded as jointly and severally
re~~onsible."~~
136. Second, the construction of the Wall is causing enormous destruction of
property and natural resources. Article 46 of the Hague Regulations Statesthat
private property "must be respected", while Article 55 provides that the
occupying State "must safeguard the capital of these properties, and administer
them in accordancewith the rules of usufruct."
137. In addition,under Article 53 of the Fourth Geneva Convention destruction
of property is prohibited, unless absolutely necessaryfor military operations.
Article 147 includes "extensive destruction and appropriation of property, not
justified by militarynecessity and carriedout unlawfully and wantonly" among
the grave breaches of the on vent ion V.^rious other obligations under the
Fourth Geneva Conventionare at stake as well. These include Articles23, 55 and
56 relating to free passage of medical equipment and materials andfoodstuffs,
access to medical and hospital establishments andservices and maintainingpublic
health and hygienein an occupiedterrit~ry.~'
138. Even if one were to acknowledgethe right ofthe OccupyingPower to take
security measures, Malaysia is firmly of the view that these have to meet the
fundamental criteria of necessity, proportionality andobservance of international
humanitarian law. The scale and nature of the Wall as currently constructed and
89Regulations respecting theLawsand CustomsofWar on Land, annexedto The Hague
ConventionNo. IV of 1907,adoptedat the secondThe HaguePeace Conferencein 1907.
Seealso Art8 (2) (a) ofthe RomeStatuteofthe International Cnminal Court on thesegrave
breaches ofthe GenevaConventionsof 12 August 1949.
''See also Articles47,49, 50and 52 ofthe Fourth GenevaConvention.scheduledto operate is not in accordance with such requirements and ishence in
flagrant violationof international humanitarian law.
G. TheWall infringesuponthe obligation toabstainfrom
unilateralmeasures undermining a solution of theconflict
139. It is commonly admitted that negotiations must be conducted in good
faith, with the intention of achieving an agreement. As the Courtafirmed, the
Parties "areunder an obligationso to conduct themselvesthat the negotiations are
meaningful".92These meaningful negotiations cannot take place if one party
imposes on the other a de facto situation that prefigures the outcome of the
negotiations. It is irrelevant if that party argues that it can change tfactoe
situation in the future. The fact is that what is being discussed is modifiedin the
sensethat the party doingso wishes the modificationto be part of the outcome of
the negotiation. Pending negotiations ona particular issue,there is an obligation
to respect thestatzq rso with regard to that issue, unlessthe parties themselves
agree to modi@it by establishinga new de facto situation, until a final settlement
is reached.
140. Irrespective of the arguments advanced by the Occupying Power, the
construction of the Wall aggravates the existing conflict, it encroaches upon
Palestinianterritory, while it is known that Israel nurtures the intention to annex
part of this territory. It also hinders the daily lives of thousands of Palestinian
citizens by violating their basichuman rights, as explained above. Following the
ManilaDeclarationfor the Peaceful Settlementof Disputes:
"States parties to an international dispute, as well as other
States, shall refrain from any action whatsoever which may
aggravate the situation so as toendanger the maintenance of
international peace and security and makemore dificult or
impede the peacefùl settlement of the dispute, and shall act in
92
North Continental Sheif cases, ICJ Reports 1969, p. 47, paragraph85, also quotedin
Gabcikovo-h'agymarosProject,Judgment, I.C.J. Reports 1997,p. 78, paragraph141.
5O this respect in accordance with the purposes and principles of
the United nation^."^^
141. Some statements from relevant actors in the peace process explain the
impact of the construction of the Wall on the negotiations and the possibilitiesof
achieving a settlementofthe conflict.
142. The Report of the Secretary-Generalmentioned above considers that "[iln
the midst of the road map process, wheneach party should be making good-faith
confidence-buildinggestures, the Barrier's constructionin the West Bank cannot,
in this regard, be seen as anythingbut a deeplycounterproductive act. The placing
of most of the security structure on occupied Palestinianland could impairfuture
negotiationsU .9"
143. In turn, Mr Roed-Larsen, Special Coordinator for the Middle East Peace
Process and Persona1Representative of the Secretary-Generalexplained:"Despite
the calls from al1the membersof the Quartet, the Government of Israel persists in
building that structure. It makes the establishment of a viable Palestinian State
more difficult, and it undermines any Palestinian prime minister'sefforts to
muster popular support."95
144. The Quartet principals,in a statement afier their meetingin New York on
26 September 2003, "note with great concern that actual and proposed route of
Israel's West Bank fence, particularly as it results in the confiscation of
Palestinian land, cuts off the movement of people and goods and undermines
Palestinians'trust in the road map process, as it appears to prejudge finalborders
of a future Palestiniantat te".^^
93General Assembly Resolution 37/1, nnex, adopted on 15November1982.
94AJES-101248,24 November 2003,p. 7.
95SPV.4824.
96S/2003/951.145. Thus, the construction of the Wall, by unilaterally modi@ing the
separation line between Palestine and Israel and aggravating the conflict,
constitutes a violation of the obligation to negotiate in good faith, and to abstain
fromunilateral measures undermininga solutionofthe conflict.
H. Self-defenceandcombating terrorismcannotserve as legal
grounds for the construction of the Wall in OccupiedPalestinian
Territory
146. Malaysia has constantly opposed terrorism in al1 its forms and
manifestations.It also takes the view that the fight againstterrorism can only be
effectively carried out through the respect of international law. Legally, Israel
bases the construction of the Wall on its inherent right of self-defence as
recognised in Article 51 of the Charter, as well as on the anti-terrorism Security
Council Resolutions 1368 (2001) and 1373 (2001). However, the argument
advanced by Israel accordingto which the construction of the Wall constitutes a
measure of self-defenceis not tenable.
147. Self-defence is a temporary forcible measure in response to an armed
attack ("agression armée",in the French text of the Charter). In order to establish
that Israel is legally justifiedin constructing the Wall in exercise of its right of
individual self-defence, it has to be established that the terror attacks by
Palestiniansconstitute an "armed attack" withinthe meaningof that expression in
Article 51 of the Charter of the United Nations and as understood in customary
law onthe use of force.
148. While Malaysia does not want to belittle for a moment the horri@ing
nature of the terror attacks, they appear to cal1for security measuresrather than
for self-defence measuresin terms of international law. Security and self-defence
are two different legal notions. To adopt preventive measures againsthrtherterror attacks concerns security, but not self-defence. Israel certainlyhas the right
to adopt unilateral security measuresto prevent such attacks, provided that they
respect human rights and other relevant internationalrules and principles,but only
withinits territory.
149. Like other States, Israel is under an international obligation regardingthe
fight against internationalterrorism. However, these obligations do not implythe
adoption of extraterritorial measures, even less the construction of a Wall in a
territory that does not belong to it. This is the only possible plausible
interpretation of Security Council Resolution 1373 (200 l), which has been
invoked by Israel to justi@ the construction of the Wall. Even assuming that the
purpose of the Wall is to prevent terrorist attacks, this kind of construction must
be made withinIsrael'sown territory.
150. Even if assuming that Israelcanjustifiablycal1on an international rightto
self-defence, any use of force in alleged self-defencehas to meet the criteria of
necessity and proportionality,as the Court reafirmed in its recent judgment in the
Irarîian Oil Platfornls case while referring to its observations in the Nicaragua
case.7 Furthermore, it is widely acknowledgedthat a lawful exercise of the right
to self-defence requires observanceof the principles and rules of international
humanitarian law. This has been recognisedby the Court, especially in its
Advisory Opinion on The Legali~ ofthe Threator Use ofNuclear Weapons,
where the Court stated: "States do not haveunlimitedfreedom of choice of means
inthe weapons they use".g"
151. The construction of the Wall challenges, in particular, the criterion of
proportionality which restrictsany measures (either security measuresor in self-
defence) to a necessary minimumas regards the means employed as well as the
end pursued. In this waythe test of proportionalityis closelyrelated to the criteria
97SeeICJjudgmentin Case Concerning OilPlatforrns(IslamicRepublic Iran v. UnitedStates), 6
November 2003, para.51.of necessity andrespect for international humanitarianlaw. As discussed above,
the construction and operation of the Wall violates principles and mles of
international humanitarian law and infringeu spon the right of self-determination.
To encircle andisolate the entire population of various villages,cut them offfrom
their lands, placesof work, schools and hospitalscannot meet any requirement of
proportionality. Hence, even assuming that the argument of self-defence were
relevant (quodnon), "(...)it would be a curious law of self-defencethat permitted
the defender in the course of his defence to seize and keep the resources and
territory ofthe atta~ker".~~
ICI Reports 1996,p. 257, para78.
''Jennings,R.Y.,TheAcquisition of Territory inInternationalLaw.Manchester,UniversityPress,
1963,p. 55.III. Submissions
Onthe basisofthe arguments set out above, Malaysiarespectfùllyrequeststhe
Court to respond to the request of the GeneralAssemblyand to advisethat:
1) The construction and maintenance of the Wall being built by Israel, the
Occupying Power, in the Occupied PalestinianTerritory, including in and
around East Jerusalem, is illegal under general international law,since it
constitutes a violation of the obligations embodied in the following
customary and conventionalrules:
a) The right of the Palestinian peopleto self-determination;
b) The respect of the territorial integrityofPalestine;
c) The obligationsof the OccupyingPower not to deprive people living
in the occupied territory of protection and not to destruct property,
under the Hague Convention IV of 1907, the Fourth Geneva
Conventionof 1949and customary international law;
c) The human rights to freedom of movement, family life, work,
education, healthcare andfood;
d) The obligation not to adopt unilateral measuresthat may negatively
affectongoing negotiationsand preclude theirfinaloutcome.
Consequently,as long as Israel continuesto construct and maintainthe
Wall,it continuesto infringethe aforesaid rules.
2) The construction and maintenance of the Wall being built by Israel, the
Occupying Power, in the Occupied PalestinianTerritory, including in and
around East Jerusalem, constitutes a violation of the relevant Security
Council and GeneralAssemblyresolutions mentionedin paragraph 86.
3) Israel, the OccupyingPower responsiblefor the construction of the Wall,
has the legal obligationto immediatelycease the construction of the Wall
and to dismantle the existing parts of it in the Occupied Palestinian
Territory.4) Al1 States are under the obligation to recognise the illegality of the
construction of the Wall and of its maintenance, andto refrain from any
act implyingrecognition of the legalityof, or lending support or assistance
to, the construction and maintenanceofthe Wall.
5) The construction and maintenance of the Wall in Occupied Palestinian
Territory does not affect in any way the sovereignty of the Palestinian
people over the territory lying between the Green Line and the line
followedby the Wall.
6) The construction and maintenance of the Wall in Occupied Palestinian
Territory being illegal, it cannot constitute a basis for any claim of
sovereignty or any territorial right on behalf of Israel with regard to the
territories lyingbetween the Armistice Lineof 1949 (Green Line) andthe
Wall.
7) Israel is obligedto make reparationto the Palestinian Authority,as well as
to the individual victims concerned,for al1the internationally wrongful
acts committedby the constructionand maintenanceofthe Wall.
8) To the extent that the construction and maintenance of the Wall in
Occupied Palestinian Territory constitute grave breaches of the Fourth
Geneva Convention, individual criminal responsibilityis involved and al1
States parties to the Convention, including Israel,are under the obligation
to prosecute the individualsresponsiblefor these breaches.
9) The parties concerned have the obligation to pursue the negotiations
airning at a peaceful solution of the conflict in good faith, and therefore
abstaining from taking any unilateral measures, such as the construction
and maintenanceof the Wall in Palestinian Occupied Territory,that may
harm the process negotiations or prejudiceits
56ANNEXES
Table of Contents
1.United Nations OfEice for the Coordination of Humanitarian Affairs,
Enclaves and Closed Areas between the Wall and the Green Line, 8
November2003 (map).
2. B'tselem, Separation Barrier (map).List of documents provided to the Registrar
1.Israeli Defense Force, Order Regarding Security Directives (Judea and
Sanzaria) (7%.378), 5730-1 9 70, Declaratiotl Cotzcernlrg Closing an Area
Nunl ber S/2/03 (SeamZone).
2. Israel, Ministry of Foreign Affairs, "Saving Lifes:Israel's SecurityFence",
November 2003.
3. Israel, Prime Minister's Office, Communications Department, Prime
Minister's Speechat the HerzliyaConference,18 December2003.
4.Israel, Ministry of Foreign Affairs, "Israel Diplomatic Network. The Anti-
Terrorist Fence. Concept and Guidelines:A Lineof Defense,not a Border". Courinternationde Justice
Enregistau Greffe le
----------
Internationl ourtof Justicy
FiledintheRegistryo: O JAN ~.0~14/39
Written Statementof Malaysia
Legal Consequences of theConstructionof a Wall
In the OccupiedPalestinian Territory
(Request.forAdvisoryOpinion)
List of DocumentsProvidedto theRegistrar
The undersigned certifies that the documents listed beloware true and accurate copies of
the origina:s
1. Israeli Defense Force, Order Regarding Securi~, Directives (Judea and
Samaria) (No. 78), 5730-9 70, Declaration Concerning Closingan Area
Number92/03 (SeamZone).
2. Israel, Ministry of Foreign AfTairs,"Saving Lives: Israel's SecurityFence",
November 2003.
3. Israel,Prime Minister'sOfice, Communications Department, Prime
Minister'sSpeechat the HerzliyaConference, 18December2003.
4. Israel, Ministry of Foreign AfTairs,"Israel Diplomatic Network. The Anti-
Terrorist Fence. Concept and Guidelines:ALineof Defense,not a Border".
30 January004IsraeliDefenseForce,OrderRegardingSecuriS,
Directives (JudeaandSamaria)
(NO.378),5730-1970,
Dedaration ConcerningClosinganAreaNumber
S/2/03 (SeamZone). Israel Defense Force
OrderRegarding Security Regulations (JudeaandSamaria)(No. 378), 5730-1970
Declaration Concerning Closingan Areano. SI2103(Seam Zone)
In the power vested in me as the commanderof the IDF forcesin the Judea and Samaria
area, and according to articles 88 and90to the Orderregarding Security Regulations
(Judea and Samaria)(No. 378), 5730-1970(here after-"the order") and my other
authorities basedon every law andsecurityregulations,and facing the special security
circumstances in the area andthe need to take necessary stepsin order to prevent
terrorist attacks and the exit of attackersfromthe areasof Judea and Samariato the state
of Israel,1hereby declare as follows:
Definitions 1. In this order:
"The Map" - A map with the scaleof 1 :150,000,named
"Declaration concerning closingan area no. SI2103(SeamZone)"
signedby me and forms an inseparablepart of this declaration.
"Israeli"- Each of the following:
a. Citizen of the state of Israel.
b. Residentof the stateof Israel registered inthe Population
Registry in Israel, accordingtothe Law of Population
Registry, 5725 - 1965,according to its validity in Israel,
from time to time.
c. Whoeveris entitledto immigrateto Israel accordingto the
Law of Return, 7510-1950,according to its validity in
Israel, from timeto time.
"Barrier" - Fences,walls andpatrol roads, destined to prevent
terrorist attacks and exitof attackersfrom theareas of Judea and
Samariato the state of Israel,constructed according toseinire
orders detailedin sectionA to the appendixto this declaration,
accordingto their validity, fromtimeto time.
"Seam Zone" - Each areadelimitedby the barrier, markedon the
map in red line,towards the directionof the state of Israel.
Closing an 2. 1herebydeclarethat the seamzoneis a closed area, accordingto
area its meaning in thisorder.
Prohibition 3. a. No person will entertheseamzone or stay in it.
On Entry and b. A person that staysinthe seamzone is obliged to exit it
Stayin the area imrnediately.
Reservationof 4. a. Article 3 of this declaration willnot apply to:
Applicability 1. An Israeli. 2. Whoever was given a permitby me oron my behalf
to enter theseam zone and stay in it, according tothe
conditionsset inthe permit. A permit based on this article
canbe genera, for aspecifictype, persona1or special.
b. Despitethe abovementioned section (a), a military commander
is allowedto orderthat article 3 of this declaration will apply to
a personor to every kind of peoples enteringthe seam zone or
stayingin it.
Permanent 5. a. Aperson who has reached the age of 16years old, whose
Residents permanentplaceof residency, on the day this declaration
becomes valid, is within the seam zone, is allowed to enter
to theseamzone and stay in it,as long as he has a written
permit, given to him byme to on my behalf, testieing that
hispermanentplace of residency is within the seam zone,
al1accordingto the conditions set in the permit.
b. 1. A person, whose has not reachedthe age of 16years
old, whose permanent place of residencyis within
theseamzone, willbe allowed to stay in the seam
zone, without a written permit, according to the
abovementioned section (a).
2. Aperson, who has not reached the age of 16years
old, whose permanentplace of residencyis within
the seamzone, will be allowed to enter the seam
zone in one of the followingways:
a. When having a written permit, according to
section (a), as long ashe is notunder the age
of 12years old.
b. Accompaniedby a person whose entry was
allowed by section (a).
c. In any otherway set by me or on my behalf.
Passages 6. a. Enteringthe seamzone and exitingit will by through the
detailedpassages detailed in section B of the appendix of
thisdeclaration,marked in blue linein the map, al1
accordingto the conditions set by meor on my behalf.
b. For this section:
"Enteringtheseamzone" - Enteringthe seam zone from
the area [WestBank]direction that are not included within
theseamzone.
"Exitingthe seamzone" - Exiting the seam zone to the
directionofthe area [WestBank]that are not included
withinthe seam zone.Authorization7. The head of the civil administrationis authorized to set rules and
procedures asrelatedto this declaration.
Publication 8. a. Copies ofthis declarationand the attached map will be
deposited for reviewfor those interested duringregular
workinghours in the following offices:
1. RegionalDistrict Coordination Offices (DCO).
2. Police stations in JudeaandSamariaarea.
3. Office of the LegalAdviser of the Judea and
Samariaarea.
4. Officesof the Headofthe infrastructure Sectionin
the Civil Administrationof the Judea and Samaria
area.
b. Copies of the declaration andthe attached map would be hung
on the notice boards in theegional DCO offices, as
mentioned in section(a)(l), for a period of 3months fromthe
day the notificationof this declaration would be publicized.
c. The headofthe civil administrationis allowedto set additional
means forpublication,beyond the detailed in sections (a) and
(b).
Upholding 9. Nothing in this declarationwill impairthe applicability of
Laws declarations concerningclosingareas or other orders applicablein
the seamzone.
Entry into force10. This declarationwill enter into forcestarting the dayof its
signature.
Name 11. This declarationwill be entitled: "Declarationof closingan area
no. S/2/03 (SeamZone)".
Appendix
SectionA- Seinire Orders
Orderregarding LandSeinire no. Tl35195(Judea and Samaria),5755 - 1995.
Orderregarding LandSeinire no. Tl12102(Judea and Samaria),5762 - 2002.
Orderregarding LandSeinire no. Tl17102(Judea and Samaria),5762 - 2002.
Orderregarding LandSeinire no. Tl18102(Judea and Samaria),5762 - 2002.
Orderregarding LandSeinire no. Tl19102(Judea and Samaria),5762 - 2002.
Orderregarding LandSeinire no. Tl20102(Judea and Samaria),5762 - 2002.
Orderregarding Land Seizureno. Tl21102(Judea and Samaria),5762 - 2002.
Orderregarding Land Seizureno.T/22/02 (Judea and Samaria),5762 - 2002.
Orderregarding LandSeinire no. Tl23102(Judea and Samaria),5762 - 2002.
Orderregarding LandSeinire no. Tl24102(Judea and Samaria),5762 - 2002. Orderregarding LandSeinire no. Tl25102(Judea and Samaria),5762 - 2002.
Orderregarding Land Seizure no.Tl26102(Judea and Samaria),5762 - 2002.
Orderregarding LandSeizureno. Tl31102(Judea and Samaria),5762 - 2002.
Orderregarding Land Seizure no.Tl33102(Judea and Samaria),5762 - 2002.
Orderregarding LandSeizureno. Tl34102(Judea and Samaria),5762 - 2002.
Orderregarding Land Seizure no.Tl35102(Judea and Samaria),5762 - 2002.
Orderregarding Land Seizure no.Tl37102(Judea and Samaria),5762 - 2002.
Orderregarding Land Seizure no.Tl39102(Judea and Samaria),5762- 2002.
Orderregarding Land Seizure no.Tl402102(Judea and Samaria),5762 - 2002.
Orderregarding Land Seizureno. Tl41102(Judea and Samaria),5762 - 2002.
Orderregarding LandSeinire no. Tl43102(Judea and Samaria),5762 - 2002.
Orderregarding Land Seizureno. Tl46102(Judea and Samaria),5762 - 2002.
Orderregarding LandSeizureno. Tl7103(Judea and Samaria),5763 -2002.
Orderregarding Land Seizure no.Tl21103(Judea and Samaria),5763 - 2002.
Orderregarding Land Seizure no.Tl25103(Judea and Samaria),5763 - 2003.
Orderregarding Land Seizureno.Tl36103(Judea and Samaria),5763 - 2003.
Orderregarding Land Seizure no.Tl57103(Judea and Samaria),5763 - 2003.
SectionB- Passages
1. Salempassage.
2. Khirbet A-Taybe- north passage.
3. Khirbet A-Taybe - Westpassage.
4. 'Aninpassage.
5. Hinanit east passage.
6. Hinanit south-eastpassage.
7. A1'Araqapassage.
8. Khirbeat A Tura passage.
9. Raihan Checkpoint.
10.Barta'a southpassage.
11.Baka Al Sharkiyanorth passage.
12.Baka Al Sharkiyasouthpassage.
13.Zeita southpassage.
14.'Atil west passage.
15.Dir Al 'Azzunwest passage.
16.Shweikhanorth-eastpassage.
17.Shweikha north passage.
18.Tulkaremsouthpassage.
19.Far'un westpassage.
20. Shufa checkpoint.
21.Khirbet Jubara east passage.
22.Sal'itsouthpassage.
23. Falamyawest passage.
24.Falamyasouthpassage.
25.Jayyuswestpassage.
26.Jayyussouthpassage. 27. Tzufin southpassage.
28. Qalqiliya north-east passage.
29. Qalqiliya south-westpassage.
30. Qalqiliyasouthpassage.
31.Qalqiliya checkpoint(109).
32. Nabi Eliassouth passage.
33. AlfeyMenashe eastpassage.
34. Khirbet A-Ras A-Tira eastpassage.
35. WadiRasha Westpassage.
36. KhirbetRas 'Atiyaeastpassage.
37. Habla north-east passage.
38. Habla north passage.
39. Khirbet Ras 'Atiyasouthpassage.
40. Khirbet Abu Salemannorthpassage.
41.KhirbetAbu Salmansouthpassage.
42. Azzun- 'Atmanorth-westpassage.
43. Azzun-'Atmasouth-westpassage.
44. Azzun- 'Atma northpassage.
45. Beit Amin southpassage.
46. Mas'hanorth passage.
47. Mas-ha west passage.
Date: 6 Tishrey,5774
211012003 Moshe Kaplinsky, General
Commander ofIDFForces
Judea and SamariaArea Israel,Ministryof ForeignAffairs,
"SavingLives:Israel'sSecurityFence",
November2003. Saving Lives: Israel'sSecurityFence Io:pg pl
- ___-L
also available in: Spanish French
-----:III
Saving Lives: Israel's Security Fence
-~ac-Ai,? November 2003
'~srae!
"Relations a The security fence would not have been needed
Israelis.been no terrorism against innocent
a The fence is not a border. The border will be
determined by negotiations.
a The Palestinians will not be cut off from their
fields, places of commerce and urban centers.
personalities
a The terrorists targettheir victims for death. Death
is irreversible.
lnconveniencescaused by the fence are
reversible.
a The rightto live free from terrorism must take
precedence.
a A legitimatetemporarysemeasure, the
stepsthat are necessary for renewingthe peacem
process.
WHO?
murderedin attacks carried
out by Palestinianterrorists
since late September20000
Thousands of lsraelis have
been injured, manyof the
victims maimedfor life.The
terrorists infiltratedlssaeli Osasson Trram
cities andtownsand carrieSuicide bombinqof Jerusalem bus
out attac-including No. (9 August 2003) suicide bombings - on buses,in restaurants, shopping malls,
and even private homes.
No other nation in the world hasbeforethis time faced such
I an intense wave of terror, especially in the form of suicide
bombings.
In almostal1of the cases,the terrorists infiltratedfrom
Palestinianareas in the West Bank.The Palestinian
leadership has done nothingto stop them and has even
encouraged them.
WHAT?
The security fenc-a temporary defensive measure, not a border
A fence, not a "wall"
As a result of the unceasing
terror, lsrael decided toerect
a physical barrier.The
absence of such a barrier
makes infiltration into lsraeli
communities a relatively
easy task for terrorists. No
terrorists have infiltratedfrom.
the Gaza Strip int0 hael in OMinisofDefens[
recentyears, becausean O
electronic security fence
already exists there. El
The Government oflsrael
has an obligationto defend
its citizens against terrorism.
This rightof self-defenseis
anchored in internationallaw.
OSassonTira[n
The securityfence will not L
annex Palestinianlands, changethe legal status of the
Palestinians,nor preventthe Palestiniansfrom going about
their daily lives. It will notestablish a border,which is to be
determined by direct negotiationsbetween lsrael and the
Palestinians.
Despitethe many pictures beingshown in the international
media of a tall concrete wall, morethan 97% of the planned
720 km. (480 mile)security fencewill consist of a chain-link
fence system. Lessthan 3% of the fence will be constructed
of concrete.The shortconcrete sections are intended not
only to stop terroristsfrom infiltrating,but also to blockthemsavi~ives:1sraei.ssecunty rence rage3 or o
from shootingat lsraelivehiclestravelingon main highways
alongsidethe pre-June1967line.
The securityfence formsa strip approximately thewidth of a
four-lanehighway.At its centeristhe chain-linkfencethat
supportsan intrusion detectionsystem.This technologically
advancedsystemis designedto warn against infiltrations,as
is the dirt "tracking"pathand otherobservationtools.
WHEN?
The decisionto buildthe
securityfence wastaken
only afterotheroptionswere
deadlyterrorist attacks.the
Despiteits numerous
commitments, the
PalestinianAuthorityhas c3SassonTrram
failedto fightterrorism.TfeSuiie bombinq of b14ino.
obligationsthatwere violated Jerusalem (11 June 2003)
bythe PalestinianAuthoritywerecontainedinthe Oslo
Accordsand subsequent
agreements,as well as in the
Roadmapthatwas presented tothe
sidesin May2003.
E
ti" Hadthere been no terrorism,lsrael
L would not havebeencompelledto
tbuild a fence to protect its citizens.
The Palestiniansmust dismantle the
terrorist organizations,onfiscate
weapons, arrestthe plannersand
perpetratorsof terrorist acts, stop
incitement and resumesecurity
cooperation with lsrael;al1these
steps are requiredby the Roadmap.
These measuresare imperativefor
renewingthe peace process.
1
WHERE? OsassoTiramr
U
The Suicidebombingof Afula
(9 May2003)
routeof
the
fence
has
been
determined
solely
on the
basis of
security
needs
and
topographicr)~
considerations.
U
The i Black-sections of the fence
fence is alreadybuilt
being built inuch a way that, if necessary,the relevant
parts can be movedto different locations. Inthis context, it
will be rememberedthat when lsrael withdrew from southern
Lebanon, infulfillmentof UN Security Council Resolution
425, theUN delineatedthe border between lsrael and
Lebanon. lsrael moved its securityfence, sometimesonly a
few meters,to complywith the new border.
lsrael has madethe use of public landsa priority in building
the securityfence, inorder to avoid, as much as possible,
the useof privatelands. If this is not possible,then private
land is requisitioned,not confiscated,and it remainsthe
propertyof the owner.Legal proceduresallow every owner
to file an objection to the use oftheir land. Whenivate
lands are used, ownersare offeredfull compensation,in
accordancewith the law;this compensationis offered both
as a lump sum and alsoon a monthly basis. Page 5of 6
Taking into considerationPalestinianhumanitarian needs
Inadditionto its effortsto ensurethe securityof its citizens,
lsrael attaches considerableimportanceto the interestsof
the local Palestinianresidents.lsrael recognizesthe
necessityof finding an appropriatebalance betweenthe
imperativeneedto preventterrorismand defend its citizens,
andthe humanitarianneeds of thePalestinians.
Most Palestinianswill beon the eastern side of the fence.
They will not be cut off fromtheir commercialand urban
centers. No Palestinianswill haveto relocate. lsraelwill
makeevery effortto avoid causinghardship and interference
with their daily lives.
Dozensof crossingpoints havebeen set upto enablethe
movementof peopleandgoods.The securityfence was
located,to the greatest possibledegree, on unused land to
avoid harmingagriculture.Palestinianfarmerswill have
accessto their fields andwill reachthem through special
gatesthat are being builtintothe fence. Trees affectedby
the constructionwill be replanted.
WHY?
Saving lives must always comefirst!
The securityfence hasonly
one purpose:to keepthe
terroristsout andthereby
Savethe lives of Israel's
citizens,Jews and Arabs
alike.
The securityfence is not an
obstacleto peace,as the
Palestiniansare tryingto portrayit. Infact, by O
providing a barrierto
terrorism,itwill help restorequietto the regionand thereby
increasethe chancesof achieving peace.Itwill not create
permanentfactson the ground thatwill affectthe outcomeof
negotiations.
The Palestiniansseekto blame Israel,the victim of terrorism
that istakinga purely defensivemeasure.Moreover,they
ignorethe hundredsof innocentvictims murderedby
Palestinianterrorismemanatingfromthe West Bank. There
would have beenno needfor a securityfencehadthere not
beenan orchestratedcampaignof terrorismthat targets
lsraeli men, womenand childrenfordeath. Deathis
permanent.It is irreversible.The inconveniencecausedto
Palestiniansbythe securityfence istemporaryand
reversible,onceterrorismstops andpeaceis achieved.
1 1
hThe security fence: Israel'sline-MFAwebsite
OWhy does lsrael need a securityfence? (Powerpoint)
of Defense)urity F-Purpose,Concept, Route (Ministry
[Israel.the Conflict andPeace:Answers to Frequently Asked
Questions (November2003)
0Palestinianterrorismsince Sept2000
a TOPOF PAGE
1 1-H-ome-- 90 - 1
El
F
Cookieght(c)1999The Stateof Israel.All rights reserved. Termsof Use Use ofIsrael,PrimeMinister's Office,
CommunicationsDepartment,
PrimeMinister'sSpeechat the
HerzliyaConference,
18December2003. Prime Minister's Speechat theHerzliyaConference
Thursday, December 18,2003
Good Evening,
1 congratulate the organizers of this conference for the important and interesting
gathering' whch you have held here. During the past three days, you have been
discussing Israel's situation., as Prime Minister, am responsible for the planning
and implementation of the measures which d shape Israel's character during the
next few years.
We are all entrusted with the duty of shaping the face of the Jewish and democratic
State of Israe- a state where there is an equal distribution of the burden, as well as
the acceptance of rights and shouldering of duties by all sectors, through different
forms of national service. A state where there is a good and efficient education
system which educates a young generation imbued with values and national pride,
~vhichis capable of confronting the challenges of the modern world. A country
whose economy is adapted to the advanced global market of the 21" century, where
the product per capita crosses the $20,000 ltne and is equal to that of most
developed European countries. An immigrant-absorbing state which constitutes a
national and spiritualnter for allJews of the world and is a source of attraction for
thousands of immigrants each year. Aliyahis the central goal of the State of Israel.
This is the country we wish to shape. Ths is the country where our chddren d
want to iive.
1know that there is sometimes a tendency to narrow alof Israel's problems down
to the political sphere, believing that once a solution is found to Israel's problems
with its neighbors, particularly the Palestinians, the other issues on the agedda
miraculo~~l~resolve themselves. 1 do not believe so. We are facing additional
challenges, which must be addressed - the economy, educating the young
generation, immigrant absorption, enhancement of social cohesion and the
mprovement of relations between Arabs andJews in Israel.
Likeal1Israeli citizens, 1yearn for peace. 1attach supreme importance to takmg al1
Steps, which will enable progress toward resolution of the conflict with the
Palestinians. However, in iight of the other challenges we are faced with, if thePalestinians do not make a similar effort toward a solution of the conflic- 1do not
intend to wait for them indefinitely.
Seven months ago, my Government approved the "Roadmap" to peace, based on
~resident George Bush's June 2002 speech. This is a balanced program for phased
progress toward peace, to whch both Israel and the Palestinians committed
themselves. A fuil and genuine implementation of the program is the best way to
achieve true peace. The Roadmap is the only political plan accepted by Israel the
Palestinians, the Americans and a majority of the international community. We are
dng to proceed toward its irnplementation: two States - Israel and a Palestinian
State- living side by side in tranquility, security and peace.
The Roadmap is a clear and reasonable plan, and it is therefore possible and
imperative to implement it. The concept behind this plan is that only security will
lead to peace. And in that sequence. Without the achievement of full security -
within the framework of which terror organizations wül be dismantled - it wül not
be possible to achieve genuine peace, a peace for generations. This is the essence of
the Roadmap. The opposite perception, accordmg to which the very signing of a
peace agreement will produce security out of thn air, has already been tried in the
past and failed miserably. And such wdl be the fate of any other plan which
promotes this concept. These plans deceive the public and create false hope. There
d be no peace before the eradication of terror.
The government under my leadership wdl not compromise on the realization of all
phases of the Roadrnap. It is incumbent upon the Palestinians to uproot the
terrorist groups and to create a law-abidmg society,which fights against violence and
incitement. Peace and terror cannot coexist. The world is currently united in its
unequivocal demand from the Palestinians to act toward the cessation of terrorism
and the implementation of reforms. Only a transformation of the Palestinian
Authorityinto a different authority will enable progress in the political process. The
Palestiniansmust fulfül their obligations. A full and complete irnplementation wül-
atthe end of the process - lead to peace and tranquihty-
we began the implementation of the Roadmap at Aqaba, but the terrorist
Organizationsjoined with Yasser Arafat and sabotaged the process with a series of
themost brutal terror attacks we have ever known.
Concurrent with the demand from the Palestinians to eluninate the terror
Organkations, Israel is taking - and wdl continue to take - steps to sigmficantly
m~rove the lit-ing conditions of the Palestinian population: Israel wdl remove
closures and curfews and reduce the number of roadblocks; we d improve
freedorn of movement for the Palestinian population, includmg the passage of
Enail:~[email protected].il02-o 5p?,02-467736]3>6?,>~'>~11 Yi", ,3 l'?'m people and goods; we will increase the hours of operation at international border
crossings;wed enable a large number of Palestinian merchants to conduct regular
and normal economic and trade relations with their Israeli counterparts, eAl1
these measures are airned at enabhg better and freer movement for the Palestinian
population not involved in terror.
In addition, subject to security coordination,dwe transfer Palestinian towns to
palesinian securityresponsibhty.
~sraewillmake everyeffort to assist the Palestinians and to advance the process.
Israelwillfulfil the commitments taken upon itself. 1 have committed to the
President of the United States that Isdaedismantle unauthorized outposts. It is
myintention to implement this commitment. The State of Israel is governed by law,
and the issue of the outposts is no exception. 1understand the sensitivitydwe
y to do this in the least painful way possible, but the unauthorized odtpobes
dismantled. Period.
Israeld meet allits obligations with regard to construction in the settlements.
There d be no construction beyond the existing construction line, no
, expropriation of land for construction, no special economic incentives and no
constructionof new settlements.
1takeths opportunity to appeal to the Palestinians and repeat, as 1said at Aqaba: it
inot in Ourinterest to govern you. We would hke you to govern yourselves in your
' owncountry. A democratic Palestinian state with territorial contiguity in Judea and
; Samaria and economic viabhty, whch would conduct normal relations of
1 hnquiùty, security and peace with Israel. Abandon the path of terror and let us
' togethetstop the bloodshed. Let us move forward together towards peace.
Wewish to speedy advance implementation of the Roadmap towards quiet and a
&nuine peace. We hope that the Palestinian Authority d carry out its part.
However,if in a few months the Palestinians stlll continue to disregard their part in
mplementing the Roadmap - then Israel will initiate the unilateral security step of
&engagement from the Palestinians.
Ihe Purpose of the "Disengagement Plan" is to reduce terror as much as possible,
md grant Israeli citizens the maximum level of security. The process of
QIcngagement d lead to an improvement in the quality of life, andd help
Rengthen the Israeli economy. The unilateral steps which Israel will tinethe
hunework of the "Disengagement Plan" d be fdy coordmated with the Unitedsteps willincrease security for the residents of Israel and relieve the pressure on the
IDF and security forces in fulfbg the difficult tasks they are faced with.e
"Disengagement Plan" is meant to grant maximum security and minimize friction
between Israelis and Palestinians.
We are interested in conducting direct negotiations, but do not intend to hold Israeli
society hostage in the hands of the Palestinians.ave already sa-dwe willnot
wait for them indefinitely.
The "Disengagement Plan" \dlinclude the redeployment of IDF forces along new
security hes and a change in the deployment of settlements, which will reduce as
much as possible the number of Israelis located in the heart of the Palestinian
population. We will draw provisional security hes and the IDFd be deployed
along them. Security wdl be provided by IDF deployment, the security fence and
other physical obstacles. The "Disengagement Plad" reduce friction between us
and the Palestinians.
This reduction of friction require the extremely difficult step of changmg the
deployment of some of the settlements. 1would like to repeat what 1 have said in
the past: In the framework of a future agreement, Isrdel not remain in al1the
places where it is today. The relocation of settlemends be made, first and
foremost, in order to draw the most efficient security lme possible, thereby creating
this disengagement between Israel and the Palestinians. This securitydlinnot
constitute the permanent border of the State of Israel, however, as long as
irnplementation of the Roadmap is not resumed, the IDF d be deployed along
that he. Settlements whichd be relocated are those, whcd not be included
in the territory of the State of Israel in the framework of any possible future
permanent agreement. At the same time, in the framework of the "Disengagement
Plan", Israed strengthen its control over those same areas in the Land of Israel
which will constitute an inseparable part of the State of Israel in any future
agreement. 1 know you would like to hear names, but we should leave something
for later.
Israeld greatly accelerate the construction of the security fToday we can
already see it taking shape. The rapid completion of the security dencenable
the IDF to remove roadblocks and ease the dailylives of the Palestinian population
not involved in terror.
In order to enable the Palestinians to develop their economic and trade sectors, and
to ensure that thdy not be exclusivelydependent on Israel, de consider, in
the framework of the "Disengagement Plan", enabhg - in coordination with
Emaii:[email protected].i102-5 039062-67736 11695~"mii';i7iq;i,31'mqJordan and Egypt - the freer passage of people and goods through international
border crossings, while takmg the necessary security precautions.
1 would like to emphasize: the "Disengagement Plan" is a security measure and not a
political one. The steps which will be taken will not change the political reality
between Israel and the Palestinians, anWLU not prevent the possibility of returning
to the implementation of the Roadmap and reachg an agreed settlement.
The "Disengagement Plan" does not prevent the irnplementation of the Roadmap.
Rather,it is a step IsraWLU takein the absence of any other option, in order to
improve its security. The "Disengagement Plan" wdl be realized only in the event
that the Palestinians continue to drag their feet and postpone implementation of the
Roadmap.
Obviously, through the "Disengagement Plan" the Palestinians receive much
less than they would have received through direct negotiations as set out in the
Roadmap.
Accordmg to circumstances, it is possible that parts of the "Disengagement Plan"
that are supposed to provide maximum security to the citizens of Israel d be
undertaken while also attempting to implement the Roadmap.
Ladiesand Gentlemen,
My life experience has taught me that for peace, as well as for war, we must have
broad consensus. We must preserve Our unity, even in the midst of a difficult,
interna1debate.
In the past three years, the Palestinian terrorist organizations have put us to a
difficulttest. nieir plan to break the spirit of Israeli society has not succeeded. The
citizens of Israel have managed to step into the breach, support each other, lend a
helpinghand, volunteer and contribute.
1believe that tks path of unity must be continued today. Whether we will be able
tO advance the Roadmap, or will have to implement the "Disengagement Plan",
CVerience has taught us that, together, through broad national consensus, we can
great things.
Ictus not be led astray. Any path wdl be complicated, strewn with obstacles, and
"l>bgateus to act with discretion and responsibllity. 1am confident that, just as we
managed to overcome the challenges of the past, we d stand together and
L ""cWd today.we d alwaysbe guided by the words of Prime Minister David Ben-Gurion, who
,,id, on the dayafter the Declaration of Independence:
Thesedays, Ourpurpose is onlyto build the Stateof Israel with love
andfaith, inJewish brotherhood,andtodefendit with al1Ourspirit, and
aslongas necessary. We are stillinthe midstof a difficult battle, one
thathas two fronts:political andmilitary. Let usnot embellishOur
deedsand, of course,Ourwords,with grandiosenames. We must
remah humble. We achievedwhat wehave achievedby standing on
theshouldersof previousgenerations,andwe accomplishedwhatwe
haveaccomplishedby preservingOurpreciouslegacy,the legacyof a
smallnation which has enduredsufferingandtribulations,but which is,
nevertheless,great and eternalin spirit,vision,faith and virtue.
1amalso a greatbelieverinthe resilienceofthis small, brave nation,which has
enduredsufferingand tribulations.am confidentthat, united in the power of
Ourfaith,we will be ableto succeedin anypath we choose.
Thankyou verymuch, andhappyHannukah.Israel, Ministryof Foreign Affairs,
"IsraelDiplornaticNetwork.
The Anti-TerroristFence.
Concept and Guidelines:
A Line ofDefense, not a Border". The Anti - Terrorist Fence
-nnc8s-
1 ~anguage:
Tw RoaFsoenceeh'ndlhe '.hnceptandGuMel,nes HumanttarianAsperts kgal Aspects on lnfa
r- r r r' r
SearchTins
(Click toenlarge)
Horne Pa% The security fence currentlybeing builtbetweenthe Palestiniansin the West Bankand Israeli
populationcenters is a defensive measure.It is designed to preventterrorists from carrying out
, Israel Uissicns attacks in Israel. Ils path waschosen in accordancewith securityand topographicconsiderations.
Homepaqo while making every effortIo minimizedisruplionto the daily lives of the local Palestinian population.
:r.-...----..---. The security fencedoes not attemptin any wayto mark a future borde- an issue rese~ed for
negotiations between thesides. it is also importantto note that the security fence areadoes not
?d.--dback annex any landto the Stateof Israel.No particularpreferencewas given Io using landin the West
Bank itself, and indeed.in certain sections. the securityfence is being builtwithin Israel'spre-1967
lines. The fence does not change thestatus of Palestinian lands.their ownershipor the statusof the
residentsof these areas. Only a small numberof Palestinianvillageswill be includedon the western,
or Israeli,side of the security fence. Their residellot have Io relocate andtheir legal statuswill
Miriistryof Foreiqr; remain unchanged.
Affzirs (Hebrew'~
PrintPreview Li
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