LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN
THE OCCUPIEDPALESTINIAT ERRITORY
R EQUEST FOR ADVISORY OPINION
W RITTENSTATEMENT OF THORGANISATION OF THSLAMICC ONFERENCE
January 2004
[Translation by the Registry] Introduction
1. In accordance with the possibilities open to it under the proceedings initiated before the
International Court of Justice, the Organisation of the Islamic Conference has the honour to submit
to the Court its observations on the request for advisory opinion formulated by the General
Assembly of the United Nations on 8December 2003 regarding the legal consequences arising
from the construction of a wall in occupied Palestinian territory.
2. By way of introduction, and with a view to illuminating the spirit in which it is submitting
its observations, the Organisation of the Islamic Conference would recall that it is currently
1
composed of 57 member States, bound by a Charter dating from 4 March 1972 . Palestine, which
is recognized as a State by all members of the Or ganization, is itself a full member. Over and
above the general aim of strengthening solidarity and co-operation between member States, the
Charter specifically includes among its objectives: “support of the struggle of the people of
2
Palestine, to help them regain their rights and liberate their land” . It is thus hardly surprising that
the Organisation of the Islamic Conference is currently deeply concerned by the deterioration in the
situation imposed upon the Palestinian people, subj ected since 1948 to denial of its fundamental
rights, and by the growing violence affecting the region.
3. One of the most threatening factors in that deterioration is the project undertaken by Israel,
and currently being pursued with a determination to bring it to completion, of a “security fence”,
which would effectively seal off the West Bank and create enclaves therein. Described as a
measure to protect the Israeli population, but in reality a measure to extend and protect Israeli
settlements, the wall has two direct effects: massive appropriation of Palestinian land and
restrictions on the living conditions of the local population. A fortified barrier 8 m in height, it will
follow a winding course of some 720 km, in places deviating significantly from the Green Line of
the June1949 Armistice, thus representing a furthe r territorial encroachment. It is to include
watchtowers, 300 m high [sic], protected by 4-m-deep ditches and barbed wire. It will encompass
some 16.6 per cent of the current West Bank territory , affecting 237,000 Palestinian inhabitants. A
further 16,000 other Palestinians will, as a result of the barrier, find themselves enclaved. The wall
will represent a further example of the violent and enduring nature of the Israeli-Palestinian conflict
and of Israel’s abandonment of a ttempts to settle the situation by negotiations undertaken in good
faith. That is the focus of the concerns of the United Nations General Assembly.
4. Believing that only a full and just settlement of the Palestinian question in all its aspects
can restore peace, that the Government of Israel is venturing down a blind alley in daily stepping
up its repression of the Palestinians and its violati ons of their rights, and that this is gravely
damaging not only to the development of the Palestinian people but also to that of the Israeli people
and to regional equilibrium, the Organisation of the Islamic Conference hopes that the advisory
opinion requested of the Court will help produce a precise legal characterization of all aspects of
the situation and thereby facilitate settlement. It wishes to use the opportunity to participate in the
proceedings offered to it by the present Statement re spectfully to draw the attention of the Court to
the following points:
the issue of its jurisdiction in this case and of the admissibility of the request for an opinion;
the lack of any legal basis for Israel’s presence on the Palestinian territory where the wall is
being built;
1
All information regarding the Organization can be found on its website: http://www.oic-oci.org.
2
Charter of the Islamic Conference, Art. II, A, fifth subparagraph. - 2 -
the violations of the provisions of the Fourth Geneva Convention of 1949, and of the other
rules of the law of war, resulting from this action;
and, finally, the grave breaches of the fundame ntal rights of Palestinians resulting from the
very presence of the wall.
Jurisdiction and admissibility
5. This matter has been brought before the Court under Article96 of the United Nations
Charter, paragraph1 of which provides: “1. Th e General Assembly or the Security Council may
request the International Court of Justice to give an advisory opinion on any legal question.”
The language used here dispenses the Court from the obligation to verify whether the
question put to it falls within the scope of activit y of the organ having taken the initiative to make
the request. Moreover, under the terms of Article 10 of the Charter, the General Assembly may
discuss any questions or matters within the scope of the Charter and, under Article11, any
questions relating to the maintenance of inte rnational peace and security. Peace has long been
seriously under threat in Palestine, and the Gene ral Assembly has repeatedly expressed its concern
on the matter. Its request to the Court for an opinion regarding an action with disastrous
consequences for peace in the Middle East is an e xpression of that concern. It falls within the
scope of the tasks incumbent upon it.
6. As regards the issue of whether this is indeed a legal question, it suffices to examine the
very form of words used in the question posed in the present case, in which the Court is asked what
are the “legal” consequences arising from the constructi on of the wall being built by Israel, the
occupying Power, in the Occupied Palestinian Te rritory, including in and around East Jerusalem,
and the Court must do so “considering the rules a nd principles of international law, including the
Fourth Geneva Convention of 1949, and rele vant Security Council and General Assembly
resolutions”.
7. To object that the situation involves political aspects is to miss the point. Thus:
“Whatever its political aspects, the Court cannot refuse to admit the legal
character of a question which invites it to discharge an essentially judicial task,
namely, an assessment of the legality of the possible conduct of States with regard to
the obligations imposed upon them by international law.” ( Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion of 8July1996, I.C.J. Reports 1996(I) ,
p. 73, para. 16.)
8. With reference to that dictum of the Court, the legal character of the question posed here is
strengthened by the fact that the Court is not be ing asked to rule on a hy pothetical action, the
“potential” conduct of various States, as in the Nuclear Weapons case. Here we are dealing with a
concrete act, carried out by a specific State: construction of a wall several hundred kilometres long
within a territory occupied by force. That act of extreme gravity has aroused the opposition, and
doubtless the indignation, of a good number of other States because it represents yet another
manifestation of use of force by the State of Israel in violation of the provisions of the Charter, but
also because of the illegal and unjust consequences which it entails for the population of Palestine.
Thus the legality of this act, and its multiple con sequences, falls to be assessed in light of the
international obligations incumbent upon the State having initiated it. - 3 -
9. Can it, however, be said that what is at stake here is a dispute in which the Court’s
advisory function is being diverted from its true purpose and wrongly used as a substitute for a
contentious function which cannot be exercised in the absence of consent by the parties concerned?
The Court has on a number of previous occasions accepted that it may exercise its advisory
function when faced with a dispute, whether between States, or between a State and an
international organization: “Dif ferences of views among States on legal issues have existed in
practically every advisory proceeding; if all were agreed, the need to resort to the Court for advice
would not arise.” ( Legal Consequences for States of the C ontinued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution276 (1970), Advisory
Opinion, I.C.J. Reports 1971, p. 24, para. 34.)
10. A request for an advisory opinion is a pr oceeding independent of whether or not a State
has accepted the Court’s jurisdiction:
“The jurisdiction of the Court under Article 96 of the Charter and Article 65 of
the Statute, to give advisory opinions on legal questions, enables United Nations
entities to seek guidance from the Court in order to conduct their activities in
accordance with law . . . As the opinions are intended for the guidance of the United
Nations, the consent of States is not a c ondition precedent to the competence of the
Court to give them.” (Applicability of Article VI, Section 22, of the Convention on the
Privileges and Immunities of the United Nations, Advisory Opinion of
15 December 1989, I.C.J. Reports 1989, pp. 188-189, para. 31.)
agairn:
“no State, whether a Member of the United Nations or not, can prevent the giving of
an Advisory Opinion which the United Nations considers to be desirable in order to
obtain enlightenment as to the course of action it should take. The Court’s Opinion is
given not to the States, but to the organ whic h is entitled to request it; the reply of the
Court, itself an ‘organ of the United Nati ons’, represents its participation in the
activities of the Organization, and, in principle, should not be refused.”
(Interpretation of Peace Treaties with Bul garia, Hungary and Romania, First Phase,
Advisory Opinion of 30 March 1950, I.C.J. Reports 1950, p. 71.)
11. Thus there is no need to pursue the “d ispute” issue any further. The essential point is
whether or not the question posed in the request for opinion is of a legal character. Whether or not
there is a specific dispute involved in the request is irrelevant. The purpose of the advisory
function is to give legal advice to the organs and institutions reques ting it. And it is indeed advice
of this nature which the General Assembly is seeking in its resolution of 8December2003.
Establishing the state of international law, that is to say precisely identifying the rules in force at a
given moment, how they interact and their relatio nship with general principles, and effectively
applying them, is a necessary condition for the establishment of international public order, which is
itself the foundation for peace. However, international public order has been seriously undermined
by the situation which has developed in Palestine since 1947.
The General Assembly requires the services of the Court in order to define the legal position
in relation to a specific situation. It will then be in a better position to consider how to seek to put
an end to the serious disorder which is rendering the prospects for peace ever more remote.
12. We are confident that the Court will have full regard to the permissive terms of the
instruments governing its jurisdiction in regard to ad visory opinions, so as to consent to respond to
the request addressed to it. This is a reflection of its position within the United Nations system, - 4 -
where it is under a duty to contribute in this way to the smooth operation of the Organization as a
whole. There would have to be decisive reasons to induce it to refuse. There are, on the contrary, a
great many positive reasons why the Court should agree to enlighten the General Assembly, as well
as all Member States and other intergovernmental orga nizations, in regard to the legal aspects of a
situation which is giving particular cause for concern.
Lack of legal basis for Israel’s presence on the Palestinian Territory
where the wall is being built
13. It would not be appropriate to devote sp ace here to the aberration whereby a people like
the Jewish people, part of which today constitutes the Israeli population, having fallen victim over
long and tragic periods of its history to th e inhuman methods of segregation and enclosure
practised by the States on whose territories its members had made their homes, having lived
through the painful experience of ghettos, should today use against a neighbouring people
procedures of which it was once itself the victim. While the matter remains inexplicable, it must be
addressed in light of a central tenet of Zionist do ctrine, one unacceptable in terms of international
law, namely the denial of national rights to the Palestinian people.
14. The General Assembly asks the Court to ru le on the wall by reference to the corpus of
rules and principles of international law, whilst sp ecifically mentioning certain elements of that
law. It is therefore necessary to address the matter in two stages: first we have to consider the
legality of the Israeli presence in Palestine in light of international law, and then the legality of the
specific act of construction of a wall of the kind envisaged here. The first stage requires us to view
the projected construction (a construction already pa rtially completed by Israel) in the context of a
long series of violations of the rules and principles governing relations between peoples and States.
What we have seen in reality has been an accu mulation of grave breaches of international law,
whereby Israel has expressly or implicitly manifest ed its territorial ambiti ons over the entirety of
mandated Palestinian territory, as well as its long-standing objective of denying Palestinian
existence, that is to say, the right of the Pales tinians to achieve their own national destiny. Those
represent multiple violations of the two underlying central principles of international law, namely
the prohibition on the acquisition of territory by force and the right of self-determination.
15. Since its creation, Israel has paid scant heed to the fundamental rule of non-acquisition of
territory by force. Since the first Israeli-Arab war of 1948/1949 and the withdrawal of the Arab
armies, Israel has considered the territories o ccupied beyond the agreed armistice line as
conquered, defending them militarily, incorporating th em into its territory and establishing its rule
there, without giving the slightest indication that these were provisional measures. That attitude
was so flagrantly in breach of the provisions of the United Nations Charter that Israel’s first
application for admission to the United Nations on 29 December 1948 was rejected by the Security
Council, which doubted Israel’s capacity to comply with its own undertakings. Israel was admitted
only in May1949, following a debate in the course of which it was requested to give assurances
regarding its intention to respect the principles of the Charter, and in particular General Assembly
resolutions 181 and 194.
16. Notwithstanding that solemn undertaking, Is rael continued with its integration of the
territories occupied in 1948, including the wester n part of Jerusalem, which in January1950 was
declared the capital of Israel. Then in 1967, dur ing the Six-Day War, the Israeli army forcibly
occupied the entire West Bank and the Gaza Stri p (as well as Syria’s Golan Heights and Egyptian
Sinai). This occupation of the whole of Palestin e, the annexation of East Jerusalem and the policy
of all-out colonization ever since substantially accelerated in recent years confirm Israel’s
refusal to comply with the rules which govern the international community and can guarantee it - 5 -
peace. These features are characteristic of a de termined policy of expans ionism. The opening of
negotiations with the Palestine Authority in 1993 was not an indication of a true and sincere change
of heart. The pursuit of colonization as a State po licy, under strong military protection, is concrete
evidence of a process of conquest prohibited by co ntemporary international law. The pretext of
security which occasioned the wall project will r esult, as the United Nations Secretary-General
noted in his Report, in a further illegal seizure of 975 sq. km, 16.6 per cent of the West Bank.
17. Israel’s policy since its beginnings also violates the principle of self-determination, a
principle forcefully recalled by the Court:
“In the Court’s view, Portugal’s assertion that the right of peoples to
self-determination, as it evolved from the Ch arter and from United Nations practice,
has an erga omnes character, is irreproachable . . . it is one of the essential principles
of contemporary international law.” (East Timor (Portugal v. Australia), Judgment,
I.C.J. Reports 1995, p. 102, para. 29.)
18. That right was asserted in favour of the Palestinian people on their liberation from
Ottoman domination, which was replaced by a Br itish Mandate under the aegis of the League of
Nations. Thus, the Covenant of the League of Nations and the system of Mandates embodied a
first, as yet limited, draft of the right of peoples to self-determination. However, in the case of
Palestine that remarkable advan ce in international law in consequence of the new international
régime would not lead, as in the case of ot her peoples under the Mandates system, to full
independence and respect for territorial integrity. It is true that the Mandate also embodied the
Balfour Declaration, introducing a strong element of ambiguity into the situation.
19. Thus began the period through which we are still living today, involving the co-existence
of two incompatible dreams corresponding to two irre concilable promises: that of the Palestinians
in search of their sovereignty on the basis of the affirmation of the right of peoples to
self-determination, subsequently confirmed in theory by advances in international law, and that of
the Zionist movement, promoting among its Jewish adherents worldwide the notion that their future
lay in a land which could be theirs, between th e Mediterranean and the Jordan. Nonetheless,
during the period leading up to the Second World War, despite the difficu lties created by the
constant arrival of Jewish immigrants and the references in the Balfour Declaration to a Jewish
National Homeland, despite the spasmodic er uptions of violence reflecting the rising
incompatibility between the two dreams, the term s of international law remained clear. The
Palestinian people living under Mandate was one of those co mmunities whose “existence as
independent nations [could] be pr ovisionally recognized subject to the rendering of administrative
advice and assistance by a Mandatory until such ti me as they [were] able to stand alone”
(Article 22 of the Covenant of the League of Nations of 28 June 1919).
And the territorial framework for that existence as a nation was that of the Mandate.
20. It was one of history’s blackest eras that accelerated the course of events: the heinous
crime, the crime against humanity, of which the Jewish people were the victim. That monstrous
project originated in Europe, the product of régimes which had initially presented a popular,
respectable face to the world. Those Arab States then already en joying sovereignty and the Arab
peoples, whatever their form of government, took no part in this tragic page of history. They
manifested no hostility towards their Jewish populati ons, many of which were of substantial size
and well established, as in the Maghreb. When the tide of horror receded after the war, a shocked
Europe accepted the Zionist project, without securing the consent of the Arab States, and above all
that of the people concerned, the Palestinian people. - 6 -
21. However, on 26 June 1945 the United Nations Charter inaugurated a new chapter in the
emancipation of mankind by including in Article 1, among its Purposes: “respect for the principle
of equal rights and self-determination of peoples”. The right of the Palestinian people, protected
during the preceding period by the terms of the Mandate, increased in importance from 1945, being
further safeguarded by the terms of Article 2, para graph 4, of the Charter, which prohibits the use
of force, notably against territorial integrity. Bu t here those safeguards would be to no effect, for
the State of Israel was in process of creation. Th is was the result of a political will, on which there
can be no question here of passing judgment, alth ough it was difficult to find an adequate legal
basis for it, clashing as it did with the then emergi ng sovereignty of the Palestinian people. It was
United Nations General Assembly resolution181, the “Partition Resolution”, that would serve as
the framework. This was an attempt to impose on the Palestinians a fait accompli, in the form of
the sacrifice of half of the territorial base for the exercise of their right of self-determination. It was
a simple recommendation, carrying the legal fo rce normally accorded to General Assembly
recommendations.
22. These historical events inaugurated an era which is still with us today, characterized by
the use of force unrestrained or controlled by law. Israel took advantage of the events of
1948/1949 to enlarge the territory allocated to it by resolution 181. Then the 1967 War led to the
Israeli occupation of the West Bank and Gaza. Notwithstanding the recognition accorded to the
State of Israel and its de facto existence, which the Organisation of the Islamic Conference does not
call into question here, Israel’s territory remain s undefined. There is only one way to make good
this shaky foundation: to make peace with Pales tine. In 1947 there was a lack of will on the part
of the international community as a whole, but above all on the part of a State of Israel that was in
process of implanting itself in the region of any will to negotiate with a people of whom a
substantial sacrifice was being demanded. Out of respect for that people, those concerned should
have had the patience to wait until it was resigned to making the exceptional effort demanded of it,
assisting it with offers of co-operation and development. But nothing was done.
23. In their haste to build an unreservedly Israeli society, the country’s rulers fostered in their
people and in all potential immigrants to the Jewi sh State the notion that Palestine was “a land
without people for a people without land”. The ve ry hard line then taken by Israeli policy towards
the Arabs has subsequently never really been modified (which could only happen as a consequence
of peace). It has taken differing forms and varied in intensity according to the period concerned.
But its constant feature has been to ignore its opponent s’ existence, 3liminating them if necessary.
The massacres of the years 1948/1949 are now public knowledge . Those taking place today are
different in character, but retain the same objectiv e. The desire to expel the Palestinians and
systematically to reduce the territory habitable by them has been continuously expressed for more
than 50years, through the expropriation of land, confiscation of property and the long-standing
policy of major colonization.
24. Whatever political parties have been in power in Israel, the State has relentlessly
supported actions aimed at rendering irreversible the occupation of th at part of the Palestinians’
territory reserved to them by resolution 181. The treatment of the Palestinian Authority and its
Head during the siege of Mukata in 2002-2003, th e targeted assassinations of leading Palestinian
political figures forming the backbone of Palestine’s political elite, the acceptance of responsibility
for those crimes by Israeli governments, th e open discussions among Israeli politicians on the
possible expulsion or disappearance of the Pal estinian leader, confirm Israel’s fundamental
opposition to the development of a free and sovereign Palestine society.
3
For an overall account, see: Dominique Vidal with Joseph Algazy, “Le péché originel d’Israël. L’expulsion des
Palestiniens revisitée par les ‘nouveaux historiens’ israéliens”, Les Editions de l’Atelier, Paris, 2002. - 7 -
25. Palestine ultimately resigned itself to accepting the cohabitation imposed upon it on its
4
own land. Various official statements and speeches confirm this . Despite its military occupation
and the clear imbalance of forces, Palestine entered into the Oslo negotiations and strove to prolong
that dialogue. The negotiating stages were not respected by its opponent and the day-to-day rights
of the Palestinians have been gravely affected by measures taken on the pretext of steps towards
peace.
26. Reduced by their sufferings to a state of despair, the Palestinian people have twice risen
up against the occupier in a struggle known as th e Intifada. That action simply represented
enforcement of a right recognized by contemporar y international law. Thus General Assembly
resolution 2625 of 24 October 1970 recommends that States should:
“[B]ring a speedy end to colonialism, having due regard to the freely expressed
will of the peoples concerned; and bearing in mind that subjection of peoples to alien
subjugation, domination and e xploitation constitutes a violation of the principle, as
well as a denial of fundamental human rights, and is contrary to the Charter . . .
In their actions against, and resistance to, such forcible actions in pursuit of the
exercise of their right to self-determinati on, such peoples are entitled to seek and to
receive support in accordance with the purposes and principles of the Charter.”
27. However, that gravely unequal struggl e has led to increased repression by Israel, a
heavily militarized State in receipt of powerful s upport from its allies. As their plight continued
inexorably to worsen, extremist movements emerged among the Palestinians, resulting in the worst
form of violence violence committed by human beings who have lost all notions of humanity:
terrorist attacks. Palestine’s political leaders have unhesitatingly condemned such violence, but so
far have not had the means to eliminate it. Other St ates, too, have had to cope with this plague of
our times without being truly able to contain it. It is also true that the Palestinian Authority has
both been called upon by Israel to bring the attacks to an end while at the same time being placed in
a situation where it is unable to exercise any control over events as a result of Israel’s attacks on its
police, its buildings, and its leaders, the premises of the Palestinian Authority having been bombed
on a number of occasions. Thus Israel’s argument of defence against terrorist attacks is
unsustainable. Those attacks are the dramatic result of the injustice done to Palestine. They cannot
justify further illegal actions.
28. However, in a situation where the way fo rward would be an active initiative for peace,
Israel, ignoring international law, has maintain ed its unlawful and unjustified military presence on
the territory of a deeply wronged people and c ontinued to proliferate its manifestations of
aggression. Thus every action taken by Israel in Palestine has been characterized by illegality, the
inherent illegality of the Israeli presence. The specific, spectacular act of construction of this
separation wall whose legal consequences the Court has been called upon to assess, is imbued with
that inherent illegality. It falls within the l ogical scheme which has to date governed Israel’s
policy, namely the consistent aim of te rritorial annexation, initially carried out de facto and then
ratified de jure as soon as possible thereafter. The wall is one manifestation among others albeit
4
Statement of Yasser Arafat to the European Parliament at Strasbourg on 13 Septem ber 1988 and paragraph 7 of
the Declaration of Independence of the State of Palestine:
“Despite the historical injustice inflicted on the Palestinian Arab people resulting in their
dispersion and depriving them of their right to self-determination, following upon United Nations General
Assembly resolution 181 (1947), which partitioned Pales tine into two states, one Arab, one Jewish, yet it
is this resolution that still provides those conditions of international legitimacy that ensure the right of the
Palestine Arab people to sovereignty and independence.” - 8 -
more substantial and significant of that objective. This was emphasized by the United Nations
General Assembly in resolution ES-10/13, in wh ich it condemns this initiative and demands that
Israel abandon the project:
“ Particularly concerned that the route marked out for the wall under
construction by Israel, the occupying Power, in the Occupied Palestinian Territory,
including in and around East Jerusalem, coul d prejudge future negotiations and make
the two-State solution physically impossi ble to implement and would cause further
humanitarian hardship to the Palestinians.”
Independently of this first point, Israel’s ac tion must also unhesitatingly be declared illegal
for two further series of reasons.
Violations of the Fourth Geneva Convention and of other provisions of
the law of war
29. It is thus clear that the wall planned and already partially completed by Israel is located
on territory militarily occupied by force. The Court is bound to note that fact and to draw the
appropriate legal consequences therefrom. We mu st now begin a further stage in our examination
of the legal consequences of the construction of th e wall, namely that concerning the consequences
of the provisions of the law of war. During the era when warfare was part of States’ sovereign
rights, a body of rules known as the laws of wa r was formulated. The United Nations Charter
introduced a prohibition on the use of force. The law of war has nonetheless retained its relevance,
for combat situations may arise in the course of collective security operations or in situations of
self-defence pending consideration of the matter by the Security Council (Article51 of the
Charter). Such situations of authorized military confrontation require a legal framework to govern
the conduct of the belligerents. But it may also happen that States ignore the prohibition on the use
of force and engage in warfare contrary to interna tional law. The law will then come back into its
own as a form of subsidiary instrument serving to reintroduce legality into a situation where there
has been a breach of the law. Su ch is the situation in Palestine. And while the Israeli military
presence is in itself contrary to law, it is however necessary to consider whether, in the course of its
presence, the occupying army is respecting the laws of war.
30. Ever since the beginnings of the conflict, Is rael has denied that the situation in Palestine
can be subject to the provisions of the Geneva Conventions of 12 August 1949. Israel’s argument,
which is incorrect, is restated in the Annex to the Secretary-General’s report . Ignoring the history
of the end of the Mandate, the right of the Palestin ian people to accede to full sovereignty, the fact
that a large number of other States have already recognized the statehood of the PLO and the
commitment entered into by the Palestine Libe ration Organization, which applied on 21 June 1989
to accede to those Conventions, the Jewish State relies on legal technicalities, based on the fact that
Palestine is not formally party to the Conventi on. In so doing it ignores the fact that that
instrument has acquired customary force, a point on which it is unnecessary to dwell, since the
General Assembly has ruled thereon a number of times. It suffices to recall here that the Assembly
again does so in its recitals to the resolution of 8 December 2003 whereby it seised the Court of the
request underlying the present proceedings: “Reaffirming the applicability of the Fourth Geneva
Convention as well as Protocol I Additional to the Geneva Conventions to the occupied Palestinian
territory, including East Jerusalem”.
5
Annex I to the Report of the Secretary-General pred pursuant to General Assembly resolution ES-10/13
(Doc. A/ES-10/248). - 9 -
The nature of the militarily occupied territo ry was moreover recognized in the Washington
Interim Agreement of 28 September 1995 (Article XVII).
31. Israel, after having long sought to evad e any legal characterization of its presence in
Palestine, today does not deny that this is a military occupation. Annex I to the
Secretary-General’s report demonstrates this. However, Israel attempts to impose its own choice of
instruments applicable. It concedes that the Hague Regulations apply, but denies that the Geneva
Conventions do so. The Court cannot accept such a subjective position. If we consider the legal
corpus governing the laws of war, then it is clear th at all of those rules having acquired customary
force are of universal application, whilst the purely conventional rules apply to all States having
acceded to the relevant instruments. On one or other basis, the following apply to the situation
created by Israel in the Occupied Palestinian Territory: the Hague Conventions and Regulations,
the 1949 Geneva Conventions (to which Israel has acceded), as well as the Additional Protocols of
1977 in respect of their provisions having customary force. It is in light of this body of law that the
decision to build the wall and begin its construction mu st be examined. It can then be seen that the
construction represents a serious violation of the provisions concerning the prohibition on
movement or transfers of population and the availability of food supplies, as well as of those aimed
at protecting property against action by the occupying Power.
32. The projected wall involves forced transfer s, direct or indirect, of the Palestinian
population, which finds itself isolated or obliged to live under impossible conditions in enclaved
villages. It also serves as an opportunity for the absorption into territory under Israeli protection of
some 343,000 settlers. However, current rules of law do not permit an occupying power to carry
out transfers of the occupied population or to tran sfer to occupied territory population from its own
territory (Fourth Geneva Convention, Article 49, paras. 1 and 6). Article 147 defines these as grave
breaches, that is to say war crimes. On these various points, the inhabitants of Palestine are refused
the protection which should be accorded to them. They are forced to leave their homes, since their
land, their fields and their businesses are disappear ing, swallowed up by the vast areas necessary
for construction work on this gigantic project, and above all as can be seen in those areas where
construction is already complete because of the way it operates as a separation fence dividing up
Palestinian territory. The Security Counc6l has already condemned Israel on a number of occasions
for its previous population transfers . The Israeli Government and its courts, before which the
issue has repeatedly been brought, have refused to apply Article49 on the basis of arguments to
which it is impossible to subscribe. They in voke the general arguments mentioned above, as well
as the fact that the Geneva Conventions have never been incorporated into Israeli domestic law, but
above all they contend that the deportations and population transfers referred to in those
Conventions mean those carried out by the Nazis during the Second World War and that the
population movements provoked in Palestine are of a different nature and justified by security
requirements. It is unnecessary to conduct a deta iled refutation of this position, given that
resolutions of the Security Council, which are binding on all States under Article 25 of the Charter,
have confirmed that Article 49 applies to the situa tion in Palestine. The majority view in doctrine
7
confirms that Israel’s argument is wrong on this point .
33. This project involves, and will further involve if it is to be completed, massive violations
of Palestinian property rights. Ten percent of the area of the West Bank is envisaged. Two
6
For the list of such resolutions, see Éric Da vid, “Principes de droit conflits armés”. Brussels, Bruylant, 1994,
p. 438, footnote 6.
7See Stephen Bowen, “Human Rights, Self-determinati on and Political Change in the Occupied Palestinian
Territories”. Nijhoff, The Hagu e, Boston, London, 1997, pp.29 et seq. See also Adam Roberts, “Prolonged Military
Occupation: The Israeli-Occ upied Territories 1967-1988”; in International Law and the Administration of Occupied
Territories. Emma Playfair, Clarendon Press, Oxford 1992, pp. 44 et seq. - 10 -
percent has already been confiscated follo wing summary procedures communicated to the
inhabitants in Hebrew. Tens of thousands of olive trees have been uprooted. The confiscated areas
include 31 wells, representing millions of cubic metres of water of which the Palestinians are being
deprived. Israeli bulldozers have destroyed some 35,000m of water pipes (both for drinking and
for agriculture). Some 10,000 animals no longer have access to grazing. Several hundred houses
8
or buildings have been destroyed, mainly shops, which are sources of revenue .
34. This series of measures, co-ordinated by the Israeli Ministry of Defence, is in clear
violation of various provisions of international law and engages Israel’s international responsibility.
Thus it is in breach of Article 46 of the Hague Conventions of 29 July 1899 and 18 October 1907
Regarding the Laws and Customs of [Land] Warfar e, which requires that the private property of
individuals be respected, and of Article 53, whic h limits the extent to which the occupying Power
may requisition moveable property belonging to the State and thus excludes all private property.
Under the terms of the Fourth Geneva Convention, which are more precise than those of the Hague
Conventions, the occupying Power is prohibited from seizing or destroying real or personal
property belonging to the inhabitants of the occupied territory (Article 53). It has a duty to ensure
the food supply of the population (Article 55). A ll of these acts, like those concerning transfers of
populations, fall within the terms of Article147, which lists the grave breaches constituting war
crimes, including therein: “destruction and approp riation of property, not justified by military
necessity and carried out unlawful and wantonly”.
35. The position of the Israeli Government on th is issue is to deny the applicability of the
relevant articles of the Geneva Convention, just as it does for that instrument in general. It accepts
that the Hague Regulations do apply, but, by a distorted interpretation of the exception for
necessities of war (Article23 (g)), seeks to justify the massive property seizures in which it is
engaged. That argument will be unacceptable to the Court. There is overwhelming evidence
confirming Israel’s covert agenda and demonstrati ng that security is used as a pretext to further
territorial ambitions which it seeks to render i rreversible, as is confirmed by the disproportion
between the size of the areas confiscated and military necessities.
36. Thus the construction of a separation wall traversing the Palestinian Occupied Territory
is not only an element of an inherently illegal situation but also constitutes grave breaches of the
law of armed conflicts, in other words, major war crimes.
Aggravated violations of the Palestinians’ fundamental rights as a
result of the construction of the wall
37. In a chronic situation of continuous, very serious violations of human rights throughout
the Palestinian territories, Israel, by building this wa ll, is massively aggravating its deprival of the
Palestinians’ most basic human rights. There is little point in describing th at aggravation here in
detail. The Court is aware of it through the S ecretary-General’s Report and the dossier annexed
thereto. Public opinion has been made aware by the network of Human-Rights Watch
Associations: Palestinian, Israeli and internati onal. The reports of Am nesty International are
entirely credible sources of information .9
8
This information is regularly updated by the Palestinian Environmental NGOs Network: www.pengon.org
9See Amnesty International “Israel and the Occupied Territories, rviving under Siege: the Impact of
Movement Restrictions on the Right to Work”. AI: MDE 15/001/2003 EFAI. - 11 -
38. We need only recall here the list of right s with whose exercise the wall particularly
interferes: the right to life (in particular by making it impossible to reach hospitals within a
reasonable time), the right to freedom of movement on one’s on territory (which will be restricted
to the specific gates in the wall and regulated by the Israeli army), the right to protection against
arbitrary or illegal intrusions into private and fa mily life, and the protection of the home (tens of
thousands of Palestinians have had their homes d estroyed), the fundamental rights of children, the
right to health, the right to education, the ri ght to work (these three categories of right are
sometimes hindered to the point of disappearance as a result of the restrictions on movement), the
right to respect for private property (which has ceased to exist as a result of arbitrary
expropriations), the right to an adequate standard of living (as a result of the dramatic increase in
poverty among the affected parts of the population), the right to culture.
39. When taken to task on these issues, the Israeli Government relies on an argument which
the Court will surely find surprising. That argum ent is included in the summary of the Israeli
Government’s legal position:
“4. Israel denies that the Internationa l Covenant on Civil and Political Rights
and the International Covenant on Economic , Social and Cultural Rights, both of
which it has signed, are applicable to the occ upied Palestinian territory. It asserts that
humanitarian law is the protection granted in a conflict situation such as the one in the
West Bank and Gaza Strip, whereas human rights treaties were intended for the
protection of citizens from their own government in times of peace.”
40. This is an argument which denies in a single paragraph a half-century of painfully
acquired progress in the field of human rights. It is true that in the situations so tragically described
by the Jewish philosopher, Hannah Arendt, namely that between the two World Wars or during the
years of the Second World War, when hordes of stateless refugees, migrants tossed on the cruel
tide of history, were deprived of rights because th ey were deprived of a State, persecuted by their
own State and unwelcome elsewhere. She deplored the fact that rights were accorded to human
beings only through the medium of their State and depended on the goodwill of States 10. It is
precisely this lacuna that the series of instruments known as the International Bill of Human Rights
seeks gradually to make good. It is for that reason that the 1948 Declaration was stated to be
Universal, so that no human being should be excl uded, for whatever reason, from the path to
human dignity and equality. And that was why, following the Declaration, Covenants of a binding
nature were drawn up and adopted. Those States which have acceded to them urge the other States
to do so, in order that within the human commun ity every individual should ultimately enjoy the
same rights. And even though not all States ha ve formally acceded, acquiescence in principle to
those rights enables them to be regarded as having the force of general custom. Can we then accept
that a population rendered particularly vulnerabl e by the war situation inflicted upon it has no
entitlement to that heritage?
41. The Israeli position represents a major and dangerous regression. International law was
originally conceived as a complex law. It provi ded a framework for relations between States, the
political actors in the societies emerging in the Eu ropean Renaissance in the fifteenth century. But
legal theory did not exclude the notion of norms valid “between peoples”, meaning that the world
community, as a community of human beings, was perceived as a reality. The following centuries
consolidated the power of the State and decoloni zation on every continent rendered this form of
political power a worldwide phenomenon, emphasizing th e inter-State nature of international law.
10
Hannah Arendt, The Origins of Totalitarianism. Imperialism . New York: Harcourt, Brace Jonanovich, 1968
[1951]. P. 178: “the right to have rights or the right of ev ery individual to belong to humanity, should be guaranteed by
humanity itself”. - 12 -
However, the great tragedies of the twentieth centu ry, the fact that States could become the abode
of monsters, compelled a return to a more comp lex system, in which individuals derived their
rights from the obligations entered into by their States, but might enjoy those rights independently
of such obligations. And the notion of the human community, overlapping with and supplementing
the community of States, is today becoming a reality.
42. To reduce the rights of the Palestinians, as the Israeli Government proposes, to issues of
humanitarian law, is to accept a category of s ub-humans, excluded from the rest of mankind.
Moreover, in noting that Israel restricts the humanita rian law applicable to the Palestinians to the
Hague Regulations of 1907, and immediately renders that law nugatory by arguing that the limited
protection accorded by it has to give way to th e necessities of war, the Court will have understood
that Israel is thereby manifesting its intention to deny the existence of the Palestinian people,
condemning them to remain without any prospect of justice or freedom. The opinion requested of
this Court will enable it to provide salutary clarif ication by strongly reaffirming the inalienable and
universal nature of human rights regardless of the circumstances in which a particular group finds
itself. It will result in condemnation of the plan to construct a wall, on grounds of the massive
violations that this will cause to the fundamental rights of the Palestinian people.
Submissions
43. For the reasons set out above in the va rious sections of this Statement, which the
Organisation of the Islamic Conference reserves the right to develop and supplement in its oral
argument before the Court, it is apparent that the rules and principles of international law, and in
particular the Fourth Geneva Convention of 1949 and the relevant resolutions of the United Nations
Security Council and General Assembly, must lead the Court to find that construction of the wall
which Israel, the occupying Power, is in process of building in occupied Palestinian territory is
illegal. That construction is an act of force ca rried out in breach of the Geneva Conventions.
Moreover, it involves flagrant violations of the fundamental human rights of the Palestinian people.
The legal consequences must necessarily be to condemn the State responsible for this action and to
recall to it its obligation to destroy what has b een built and to make reparation for all of the
violations committed by it.
30 January 2004
On behalf of the Organization of the Islamic Conference
B Abdelouahed ELKEZIZ .
Secretary-General
(Signature illegible)
___________
Written Statement of the Organisation of the Islamic Conference [translation]