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(REQLEST FOR ADVISfbRk'8IxIK16N) Table of Contents
INTRODUCTION
1.Terms and scopeofthe request
II. ThepositionoftheLeagueof Arab Statesinthe proceedingsbeforetheCourt
PART ONE
Procedural Questions
III. Thecornpetenceofthe General Assernblyandthejunsdiction ofthe Court
1.Thecornpetenceofthe GeneralAssemblytorequestthe Advisory Opinion
2. The qualificationofthe questioasa"legal" one
IV. The dutyofthe Courtto renderthe requested Opinion
1.The so-called"discretionarycharacter"oftheadvisoryfiction ofthe Court
2.Possible argumentsagainst the Court renderingan opinion
a. The allegedlypoliticalnature or motivationofthe question
b. The allegedabsence of any useful legalpurpose servedby an advisoryopinionon
the question
c. The allegedly nefarious effect of an advisory opinion on ongoing or future
settlementefforts
PART TWO
Substantive Questions
A. The illegalityof the wall
V. HistoricalBackground:The Development of the Palestine question 1. The Palestinian Mandate(24 July 1922)
2. The U.N. General Assembly resolution 181 (II) on the Future Government of
Palestine (November 29, 1947)
3. General Assembly resolution 194(III):the right to return
4. The occupation ofthe West Bank and theGaza Strip, 1967
5. Security Council resolution 242 (1967)of 22 November 1967
6. The Madrid Conference
7. The Oslo Accords
8. The WyeRiver Plantation Accord
9. Camp David II
10.The Second Intifada
11.The RoadMap: President GeorgeW. Bush's vision
12.Arab Peace Initiatives
VI. The Wall: factual,humanitarian, political and socio-economic impact
VII. The Wall as an internationally unlawful act- applicable law
VIII. The Wall - a violation of fundamental mles of general international law and of the
Charterof the United Nations, in particular of the right to self-determination
1. Introduction
2. The international statusof the tenitory as a mandated tenitory
3. The international statusof thetemtory flowing fiom the right to self-determination
a. The right to self-determinationin international law
b. The cornpetence and responsibility of the General Assembly in the
realisation of the right to Self-Determination and the legal effects of the
resolutions
c. The right to Self-Determinationof the Palestinian People
d. The right of the Palestinian People to Permanent Sovereignty over its
Natural Resources e. The territory over which the right to Self-Determination of the Palestinian
Peoplemay be exercised
f. The duties of the General Assembly and the Security Council inthe peace
process
4. The Wall - aviolation of Art. 2 (4)of the Charter
IX. The Wall - a violation of international humanitarian law
1. Introduction
2. The applicabilityofthe Fourth Geneva Convention
3. Allegedjustifications of measures taken by the occupying power
a. Militarynecessity or similar considerations
b. The irrelevance of the argument of self-defence
4. The duty to ensure adequate living conditions for the population of the occupied
temtory
5. The dutyto respect private property in occupied territory
6. The dutynot to expel the civilian population of the occupied territory
7. The dutynot to transfer the occupying power's population into occupied territory
8. The dutynot to change the status of an occupied territory
X.The Wall - a violation ofof human rights law and standards
1. The applicability of human rights law in a territory occupied during an
internationalarmed conflict
2. The question of the limitations of fundamental human rights - general
considerations
3. The Covenanton Civil and Political Rights
a. Article 12
b. Article 13
c. Article26
4. The Covenanton Economic, Socialand Cultural Rights
5. The Convention onthe Rights of the ChildB. The Wall - legal consequences arising from the unlawful constructionof the wall
1. The law of Stateresponsibility - the obligations of the Stateof Israel
2. The law of Stateresponsibility - the rights and duties of other States
3. The responsibilities and duties of the United Nations and the SpecialisedAgencies
4. Persona1criminal liability
C. Conclusions and submissions INTRODUCTION
1.TermsandScopeof the Request
1.1. By resolution AIRESIES-10114of 8 December 2003, adopted at its lothEmergency
Session, the General Assembly of the United Nations decided, pursuant to Article 96,
paragraph 1,ofthe Charterof the UnitedNations, to requestthe InternationalCourtofJustice
urgently torenderan advisoryopinion on thefollowingquestion:
"What are the legal consequences arising from the construction of the wall being
built by Israel, the occupying Power, in the Occupied Palestinian Temtory,
including in 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 Convention of 1949, and relevant Security Council and General
Assemblyresol~tions?'~
1.2. The General Assembly made this request followingthe obstinate refusa1by Israel to
heed to al1pleas to discontinuethe construction of and to dismantle the wall which is built
well inside the PalestinianOccupied Temtories and does not follow the Armistice Line of
1949 that now marks the boundary behveen Palestine and Israel. When a drafi resolution
urging Israelto desist from constructing that wall was not adoptedby the SecurityCouncil
due to a veto by the United tat tes'e General Assembly adopted Resolution ES-10113
which, inter alia,
"1. Demands that Israel stop and reverse the construction of the wall in the
Palestinian Occupied Territory, including in an around East Jerusalem,which is in
departure of the Armistice Line of 1949 and is in contradiction to relevant
provisionsof international law;"
' UN Doc. SI20031980of 14October2003.
6The Secretary-General, requested by the General Assembly to report on Israel's
cornpliancewith this resolution, concluded, in his report of 24 November 2003, that Israel
had notcomplied with its obligations.'
1.3. The scope of the request has tobe interpretedin the lightof this history.By Resolution
ES-10113,the General Assembly had determined that the construction of the wall was a
breach of internationallaw. As it has then been confionted with Israeli non-compliance,it
seeksto be enlightenedby the Courtas to the legalconsequencesof this continuedrefusa1to
comply. The ambit of the term "legal consequences",however, is not limited to a general
declarationon internationalresponsibility.Thejudicial functionof the Courtrequiresthat the
Courtreaffirmthe existinglegal situation,which encompassesthebreachof awide catalogue
of specificand detailedrules of general and conventionalinternationallaw, the Charter and
relevant resolutions of the Security Council and General Assembly, including the rightto
self-detemination, international humanitarian law, hurnan rights law, and contractual
obligations, etc.Therefore,the Court is expectedto answer to layersof questions:to clearly
statethat and whythe constructionof the wall isunlawfulunderinternationallaw andto state
the legalconsequencesflowingfiom that illegality.
1.4. In performingthis task, the Court must determine the natureof that Wall whichhas a
devastating effect onthe life of the Palestinian population and possessesal1the features of
a permanent structure. This means that although the existence of the wall is undisputed,
the Court will have to ascertain anumber of facts as to the impact and lasting effect of the
wall. It should do so bearing in mind that the evidence strongly suggests that Israel is
determined to create facts on the ground arnounting to de facto annexation in violation of
the Charter of the United Nations. The footprint of the wall itself is a cause of huge
confiscation of land. By cutting the Palestinian territories into five barely contiguous
territorial units deprived of international borders, it threatens the potential of any future
viable Palestinian State with effective control and with a functioning economy. In the
immediate, as well as longterm, the construction of an apartheid wall through Palestinian
land is denying the most fundamental economicand social nghts to many thousands of
' UN Doc. AIES-101248,paras. 28 and 29.Palestinians, leaving many of them separated from their lands or imprisoned by the
winding route of the wall or in the closed military zone along the edge of the wall. This is
a structured deprivation of lands, homes, crops and means of subsistence. The clear
statement of the illegal character of the wall will then constitute the basis for the Court
pronouncing itself on the legal consequences thereof cessation, restitution, compensation,
and a corresponding duty of al1States and of the United Nations to take measure to ensure
that these consequences are implemented.
II.The standingof the LeagueofArab Statesin the Proceedingsbeforethe
Court
2.1. The Palestinian question has always beenthe core of the Arab- Israeli conflict, and at
the top of the League of Arab States' agendasince its creationin 1945.The League'sPact
assertedthe right of Palestineto independence. Accordingly, Palestinewas grantedthe full
membershipinthe ArabLeague.
2.2. The League of Arab States as a regional govemmental organization,and being a
regional agency in the meaning of the U.N. Charter, is interestedin settlingthe Palestinian
question in al1its aspects, and in reaching a comprehensive,just and lasting peace for the
Arab-Israeli conflict.It deployed many efforts and took several initiatives to put an end to
thatconflict,andhas adoptedtheArab Peace Initiativeinthe BeirutsurnrnitofMarch2002.
2.3. This is the reason why the League of Arab States requestedthe Court's permission to
submit a written statement and also to appear before the Court in the oral proceedings.
Pursuant to Art.66 of its Statute,the Court decidedthat the League is likely to be able to
fùrnishinformationon the questionbefore it.This written statementis dividedintotwo Parttne showsthecompetenceof the Court
to givan advisoryopinionon the subject-matterof the request.It establishesthat the request
comes fi-oman authorized organ and that the request is phrased as and addresses a legal
question. It also addresses the questionof admissibility,and shows that the Court has no
groundsto rejectthe request foran advisoryopinionon thebasis ofjudicial propriety (orhas
no compellingreasonsto refusethe requestforan advisoryopinion).
Par Ttwois dividedin three sections.SeAtdemonstratesthat the construction of
the wall being built by Israel in the Occupied Palestinian Territory is incompatible with a
number of fundarnentalrules of international law. Section B asks of the Court to state the
legal consequenceswhich flow fiom this violation botratione materiaand ratione
personae. Section C surnrnarises the argument in the form of submissions. PART ONE
Procedural Questions
III.Cornpetenceof the GeneralAssembly and the Jurisdictionof the
Court
1. The competence of the GeneralAssembly to request theAdvisory Opinion
3.1. Article 65 of the Statute of the Court stipulates that:
"The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the
United Nationsto make such a request."
There is no doubt that the two prerequisites for the giving of an advisory opinion: namely
that the request be made by aduly authorized organ and thatthe question put to the Court
be a legal one, are both fulfilled inthe present request as detailed in the following.
3.2. According to Article 96(1), the General Assembly (like the Security Council), in
contrast to other authorized organs and specialized agencies,"rnayrequesttheInternational
CourtofJusticeto giveanadvisoryopinionon anyIegalquestion."3 The broad scopeof this
article, which reflects the very broad competence of the General Assembly under UN
Charter Articles 10, 11and 13,and hence, the almost complete libertyof the Assembly in
requesting an opinion of the Court, has been confirmed by the ~ourt.~Thus, there is no
Italicsadded.
4
AdvisoryOpiniononLegalip of the Threator UseofNuclear Weapons, 8 July 1996, para.
11.basis whatsoever for an objection pretending that the General Assembly, in seeking an
opinion on questions relevant to the exercise of its broad powers under the Charter in
relation to a temtory with an international status over which it has continuing
responsibility, went beyond the scopeof this competence.
2. Thequalifiation of the question asa "legal" one
3.3. The General Assembly now requests an advisory opinion from the Court on a legal
question.Theadvisoryopinionrequestedrelatesto the legalityof the constructionof thewall
under international law, which necessarily, and by definition, is a "legal question". It
concems the international legal aspects of a set of facts, i.e. the question of the
incompatibilityof the constructionof the wall with the rules and pnnciples of international
law, includingthe Fourth Geneva Convention of 1949, and relevant Security Council and
General Assembly resolutions. Furthermore, the Court is requested to advise on the legal
consequences of this incompatibilityunder international law, including the Charter. This
question,too,involvesthe interpretation ofinternationalnoms whichmightbe applicableto
the circurnstancesleadingto the presentproceedings whichis an essentially ajudicial task.
The question submitted by the General Assembly has been ''framedin terms of law and
raise[s] problems of international law. ... [it is by its] very nature susceptible of a reply
based on law", hence it is a question of a legal~haracter.~
3.4. Thatthe Court may be called upon, as pointed out above, to ascertain certain factsin
order to assesstheir legalsignificance is part of the traditionaljudicial function.It does not
excludethat the requestconcerns a legal question.6
3.5. In sum, the Assembly's request for an advisory opinion satisfies the conditions of
Article 65 of the Statuteof the Court and Article96(1)of the Charterbothrationepersonae
(the GA being a duly authorised organ) and ratione materiae (the request being ona legal
WesternSahara, AdvisoryOpinion, I.C.J.Rep. 1975,p. 18,para. 15.
Namibia, ICJRep. 1971,p. 27; WesternSahara, loc. cit. p.19).
11question). And, accordingly, the Court is called upon to render the advisory opinions
required.
IV.The dutyof theCourtto renderthe requestedOpinion
4.1. Beingthe principaljudicial organoftheUnited Nations,itis the foremost and noble task
of the Court to assist thepolitical organs of the United Nationsby giving them advice on
legalquestions.This is the object and purpose ofArt. 96para. 1of the Charter.Thus,it is in
principlealegaldutyofthe Courtto providesuch advice.
4.2. Nevertheless, it has become customary even in advisory proceedings that States,by
pleading preliminaryobjections,to try to convince the Court notto give an opinion an the
substance of thematter. In view of the acceleratedprocedure containedin the Order of 19
December2003 by which the Courthas limited the written statementsto onlyone followed
by oral hearings, the League of Arab States is compelled to present counter-argumentsin
anticipation of certainpossible allegationsex hypothesiby some States aimed atpreventing
the Courtfromperformingitsjudicial fùnction.Thisconjectureis not fictitious;it is basedon
previous contentionsand allegations made in connectionwith advisoryproceedingsof the
Court.
I. Theso-called "discretionarycharacter"of the advisoryfunction of the Court
4.3. In the advisoryopinion concerning the Legality of the Threat or Use by a State of
Nuclear WeaponsinArmed Conjlictof 1996, the Courtwasrequestedby someStatesnotto
give its opinion on the basis of an alleged "discretionary" powernot to do so. In giving its
opinion on the request madeby the General Assembly,it responded to this allegationby
AdvisoryOpiniononLegaliy of the Breat or UseofNuclear Weapons, 8July 1996.emphaticallyreiteratingthat "it should not,in pnnciple, refuseto givean advisoryopinion".8
It explained that "once it has established its competence to [give an opinion] ... only
'cornpellingreasons7could lead to such a refusa^ In.fact, there has been norefusa],based
on discretionarypower, to act upon a request for advisory opinion in the history of the
present Court.In the advisory opinion concerning the Legality of the Use by a State of
Nuclear Weaponsin ArmedConfict requested bythe World Health Organization,the Court
justified the refusal to give the opinion requested on the basis of the Court's lack of
junsdiction.
4.4. But, can the Court exercise an unfettered discretion when exercising its advisory
fbnction?Tme, certainof its dicta when readout of context, may lead to such a conclusion.
This issue has been argued in detail before this Court by Professor GeorgesAbi-Saab, on
behalf of Egypt,in the public sittingheld by the Courton 1November 1995concerningthe
Legality ofNuclear Weapons.Thepresent case recallsthese arguments.
4.5. Inthe advisoryopinion on CertainExpensesof the UN," the Courtsaidthatitspower to
give advisory opinions "is of a discretionarycharacter."" Similarly in its opinion on the
WesternsaharaI2it said that Article 65, paragraph 1,of the Statute, which establishes the
power of the Courtto give an advisoryopinion, was"permissiveand underit, that power is
discretionaryin character."I3But, one should readwhat comes after that and interpret the
adjective"discretionarf' in the light of the total statement.In order to understandthat, one
hasto gobacktotheoriginsof the advisoryfunction.
Ibid,para. 14.
Italics added.oc cit.
O
CertainExpensesof the UN,(Article17,paragraph 2, of the Charter),Advisoryopinion
of 20July 1962,I.C.J.Reports 1962,p. 151.
" Ibid.,p. 155.
12WesternSahara,Advisory opinionof 16October1975,I.C.J.Reports1975,p. 12.
13
Ibid.,p. 21. Italicsadded.4.6. The advisory functionof the Court was introducedby Article 14of the Covenant of the
League of Nations which provided for the establishment of the Permanent Court of
InternationalJustice (PCIJ). Besides specifyingthat that Court was "competent to hear and
determine any dispute of an international characterwhich the Parties thereto submit to it",
Article 14stipulatedthat the Court "may also give an advisoryopinionabout any dispute or
question referred toit by the Council or by the ~ssembl~."'~In French, the other officia1
languageof the League,the formula was quite different.It was not permissiveas the words
"mayalsogive"suggest,but itwasmandatory;it read:"Elledonneraaussi...".
However,the difference between the twowas not as fundamentalas it was made to
appear. The "permissive" English formula, in the circumstances, served no more than an
"enabling clause"whichwas not meantto definethe natureor characterof the activityof the
Court but simply to authorize it. It does not mean that the exercise of this activity is
"discretionary",nor doesitnecessarilyexcludethat suchan exercisewas "mandatory".
4.7. The issuewas not solvedin eitherthe originalStatuteof the Courtnor in its firstRules.
The questionwas not, however, ignoredduring the preparationof the Rules. It was raised in
relationto a drafi Rule which would have reserved the right of the Court "to refrain fiom
replying toquestionsput to it which require an advisoryopinion on a theoreticalcase". At
this earlystage there were doubts as to the compatibilityof the advisory activitywith the
judicial function of the Court and whether it constitutedpart of that fùnction. There were
fearslestit wouldunderminethe credibilityand prestigeof the Court, particularlyif it had to
answer any questionput to it by the political organs. The Court preferred,however, not to
includeanyregulationon advisoryopinionsandthus leavethe question opento be dealt with
according to thecircumstancesofeachcase.
Inthe followingyearthe Courthad to addressthe issueinthe farnousEastern Carelia
case." It is usually invoked wrongly,it is submitted, to prove that the Court has an
l4Italicsadded.
''P.C.I.J., SeriesB, No 5, 1923."unfettered discretion" torefuse to give advisory opinions. A careful reading ofthe case,
however,reveals averydifferentpicture.
4.8. In that case, Finland, a Member of the League of Nations,brought before theLeague
Council adisputeit had with a non-MemberState,the SovietFederative Republicof Russia
(as it was then called). Russia energeticallyrejected an invitationto submit the question of
Eastern Carelia to the examination of the Council on the basis of Article 17 of the
covenant.I6But the Finnish Governrnentpersisted and brought the casebefore the Council.
The Council endedup putting to the Court a question,which reallywould have decided the
centralpoint atissuebetweenthe twoparties.
The Court declined to give the opinion. Its refusal, contrary to what was largely
alleged, was mainly based on the absence of Russia's consent to the advisory procedure
itself, as a State which was neither a party to the Statute of the Permanent Court nor a
Member of the League of Nations, hencebased on inherent limitationsposedby its Statute.
Therewas nomentionor questionof discretionor discretionarypower.'7
The record shows that the Eastern Carelia precedent remains a solitary one
throughout the span of life of both Courts - until came the request of the WHO mentioned
above - and that the ICJ in its dicta, while describingitspower togive advisory opinionsas
"discretionary" - which the old Court did not Say - justified this on the grounds of the
Court's lackofjurisdiction in that case.
4.9. The Advisory Opinion on Certain Expensesis paradigrnaticin this regard.The Court
said that its power to give an advisoryopinionis derived fromArticle65 of the Statute.The
power grantedis of a discretionarycharacter.In exercising its discretion, the present Court,
like the PCIJ, has always beenguided by the principlewhich the PermanentCourt stated in
l6Ibid., p. 24. Article17 dealt with the settlementof disputes between Membersand non-
Members withthe acceptanceof the non-Member.
l7It is truethathavingreachedits decisionon this solidbasis inEastern Carelia, the Court
-probablyexabundante cautela - added otherreasonswhich might seem lessconstrainingin
nature, and which are the ones usually cited in support of the "discretionary power7'
interpretation of the Opinion. But these were only "supporting" arguments, not the main
groundsofthe decision.the case concerning theStatusofEastern Careliawhen it saidthat "TheCourt, being a Court
of justice, cannot, evenin giving advisory opinions,depart fi-omthe essentialrules guiding
their activity as a court."I8 Therefore, and in accordancewith Article 65 of its Statute,the
Court explained,it can give an advisory opinion onlyon a legalquestion. If a question was
not a legal one,the Court had no discretionin the matter;it must decline to give theopinion
requested. But even if the question was a legal one, which the Court was undoubtedly
competent to answer,it may nonethelessdeclineto do so.Asthe Court saidin its Opinionon
the InterpretationofPeace ~reaties,'~the permissivecharacterof Article 65"gives the Court
the power to examinewhether the circumstancesof the caseareof sucha character as should
leaditto declineto answerthe~e~uest.~'
And here comes the second part of the statement. Butas the Court also said in the
same Opinion, that "[tlhe reply of the Court, itself an 'organ of the United Nations',
representsitsparticipationin the activitiesof theOrganization,andin principleshouldnotbe
refu~ed."~'Stillmore emphatically,in its Opinion of 23 October 1956,'~the Court said that
only"compellingreasons"shouldleadittorefuseto givea requestedopinion.23
Therearesimilarstatementsinthe Western aha ar case^and elsewhere.
4.10. 1s the permissive language of the beginning reconcilable with the constraining
language of the end? 1s the coexistence of two apparently contradicting propositions
possible? On the one hand, it is said that the power is discretionaryand that the Court can,
18
P.C.I.J.,SeriesB,No. 5,p. 29.
l9Interpretationof Peace TreatieswithBulgaria,HungaryandRomaniaof 30 March 1950,
I.C.J.Reports 1950,65.
20I.C.J. Reports 1950,p. 65 at p. 72.
2'Ihid., p. 71; andReservations to the Conventionon the Prevention and Punishment of
the Crimeof Genocide,I.C.J.Reports 1951,p. 15at p. 19.
22Judgments of the Administrative Tribunalof the I.L.O. uponcomplaints made against
the U.N.E.S.C.O.,Advisory Opinionof Octoher23rd,1956,I.C.J.Reports 1956,p. 77.
23LOC.cit.,p. 86.Also cj, 1C.J.Reports 1962,p. 151at p. 155.
24I.C.J.Reports 1975,p. 12,para. 23 atp. 21.therefore, declineto givethe opinionevenif it wascompetent.On theotherhand,it is argued
that it is the Court's main contribution to,and form of participation in, the work of the
Organization, the Courtbeing "the principaljudicial organ of the United Nations", to give
advisory opinions and that in principle it should not refuse to do so, unless there are
"compellingreasons"for that refusal.An interpretationwhich reconcilesthetwo partsof the
statementisproposed.
It al1hingeson how the adjective"discretionary"is construed.If what is meantby it
is unfettered discretion, then there is no way of avoiding the inner contradiction of the
statement.But if it is interpretedby using the constructionof the words ofthe statementitself
one can find the way out of contradiction. That in certain cases, while "the Court is
undoubtedly competent to answer, it may nonetheless decline to do so." If this is the
definitionof discretion,then it is fully reconcilable with the secondcompellingpart of the
statement.
They are reconcilable because the conditions of the exercise of the consultative
function, the same as with the conditions of the exercise of the contentious fùnction, go
beyondthe limitsofthe competenceofthe Courtwhicharein this field,advisoryjurisdiction,
that the question be legal and thatit fallswithin thejurisdictionof the requesting organ.The
otherconditionsrelate to admissibilitywhichliesbeyondcompetence.However,unlikein the
contextofthecontentiousfùnction,whereadmissibilitycouldsettleandcrystalizeinthe form
of generallyrecognizableand concreteconditions,admissibilitypresented itselfin the context
of the new advisory fùnction in the form of general considerations rather than precise
conditions.
4.11. The generalconsiderationsof admissibility,while leavingto the Court awidermargin
of appreciationthan the concrete conditions,remainwithin the realm of admissibility.They
are considerationsof "propnety" and not of "opportunity".Propnety is subjectto the test of
what is proper for ajudicial organto do, i.e.what is compatiblewith thejudicial function.It
isnot a questionofunfettereddiscretionorconvenience.
Indeed, if we consider the advisory activity of the Court as part of its judicial
function,we cannotconsiderit at the sametime as"discretionary"in the senseof unfettered
discretion according to opportunip and convenience. The differencebetween a nght and afunctionis that right is a power or a facultywhich we can exercise or not,keep or abandon;
while a function conjugates a power with a charge or an obligation to exercise it in the
pursuitof a specificfinality.This descriptionapplies as much to the advisoryfùnction as it
doestothecontentiousfùnctionofthe Court;it isnotthe preserveofthe advisoryfunction.
4.12. Even inrelation to the contentious fùnction - whose contours are much clearer and
conditionsof admissibilitywell settled and crystallized - there remains an illusive margin
which cannotbe reduced toprecise conditions.Significantlyenough,when the Courthad to
identi@it, it didso by referenceto the advisoryfunction,thus confirmingthe identityof the
problem andthe solutioninboth. TheCourt didthisin theNorthern Cameroonscase25where
it saidthat:
"Both Courts have had occasion to make pronouncements concerning requestsfor
advisoryopinions, which are applicableto the properrole of the Court in disposing
of contestedcases; in both situations,the Court is exercisingajudicial function.That
fünctionis circumscribed by inherent limitationswhich arenone the less imperative
because they may be difficult to catalogue, and may not frequently present
themselvesas a conclusivebar to adjudicationin a concretecase.Nevertheless, it is
always a matter for the detemination of the Court whether itsjudicial fünctionsare
in~olved."~~
The Courtthen addedthat likethe PCLTi,thas alwaysbeenguidedby the principlewhich the
latterstatedin the case concemingtheStatusofEastern Careliaon 23July 1923whenit said
that:
25 Caseconcerning the Northern Cameroons Cameroonv. UnitedKingdom,Preliminary
Objections,Judgment of 2December 1963,I.C.J Reports 1963, p. 15.
26Ibid.,p. 30. "The Court,beinga Courtofjustice, cannot,evenin givingadvisoryopinions,depart
fromthe essentialrules guiding their activity asa Court. (P.C.I.J.Series B, No. 5,p.
This dictum explicitlyidentifiesand unifies thproblematique of the "generalconsiderations
ofadmissibility"forthetwo speciesofthejudicial function.
4.13. Consequently,the so-called"discretion"is in fact reducedto a specialdutyof vigilance
for the Court lestin any advisory proceedings(but also in any contentiousproceedings) be
trespassed by those "inherent limitations" of thejudicial function"which are none the less
imperativebecausetheymaybe difficultto catalogue".
In other words,the "discretionarypower" of the Courtthus comes down to no more
than a widermarginof appreciationof the generalconsiderationsofadrnissibilityof requests
for advisoryopinions;considerationswhose defaultwouldmean that answeringthe question
would be incompatible with the judicial function and not merely "inopportune" or
"inconvenient" for the Court or for any other instance;and would constituteone of those
"compelling reasons"which alone "should lead [the Court] to refuse to give therequested
opinion".
2.Possible argumentsagainstthe Courtrenderingthe Opinion
4.14. It may be allegedthat the Courtshoulddeclineto givethe requested advisoryopinion.
It may thus be arguedthat the 'propriety'ofjudicial involvement withthe question is more
than doubtful, and that the Court should not give the requested advisoryopinion in the
presentcasebecausetherewere several"compelling reasons"forit not to do so,e-g.,that the
GeneralAssembly7srequest leads to the questionof the Court's integritysince there is the
dangerof apointless procedure.
27Loc. cit.4.15. The reasons which rnay be given for this negative attitude can be synthetically
formulated,inter alia, as follows:
-Thatit ispolitical orpolitically motivated
-Thatthe opinioncanhaveno usefullegaleffect;oralternatively,andparadoxically
- Thatit will definitelyhavea nefariouseffecton the ongoingand futurenegotiations
betweenthe partiesto theMiddleEast conflict.
Theseargumentsareexplainedandrefutedseriatim.
a.Theallegedly political nature or motivationofthequestion
4.16. It rnay be suggested that the questionposed by the General Assemblyis not a legal
question but a political one, and that an opinion by the Court offeringadvice on what is
essentiallya political matter could undermineits authorityand effectiveness.It rnay also be
allegedthat the legalityand consequencesof the constructionof the Wall cannotbe assessed
usingthe noms of internationallawwithoutsuchan assessmentturningfi-omajudicial into a
politicalone.
4.17. The mere fact thatthe questionrnayhave political aspects, be related toan on-going
political process or have been politically motivated, or that the opinionrnay have political
implications, cannot deprive it of its character as a legal question nor prevent the Court
fromrendering its advisory opinion.
The Court has stated that:
,928
"It is not concemedwiththe motiveswhichrnayhaveinspired ..[the]request ...
It hasalsoaffirmedthat:
2s Conditions ofAdmissionofa State to Membership in the UnitedNations (Article4 of
the Charter), I.C.J.Reports 1948,p. 57 atp. 61. "in institutionsin which political considerationsare prominentit may be particularly
necessary for an international organizationto obtain an advisory opinion from the
Court as to the legal principles applicable withrespect to the matter under debate
Onanother occasion,the Courtsaid:
"It has been argued that the question put to the Court is intertwined with political
questions, andthat for this reason the Court should refuse to give an opinion. It is
true that most interpretationsof the Charterof the United Nationswill have political
significance,great or small. In the nature of things it could not be othenvise. The
Court, however,cannot attribute a political characterto a request which invites it to
undertakean essentiallyjudicial task ...930
Thus, it is not forthe Courtto delve into themotivationwhich leads aduly authonzed organ
to requestan advisoryopinion on a legal questionobviouslyfallingwithin thejurisdictionof
that organ even when that question relates to an issue which has other important political
facets or is itself, arguendo, essentially political.In the request before the Court, the legal
questions are clearand the Court can answer them withoutenquiring into any apparent or
hiddenpolitical motivesorotherpoliticalfacetsoftheissue.
4.18. In the same vein, it may be suggested, as a basis for the contentionthat the Court
should decline to give the opinion, that there is disagreement within the international
cornrnunityas to whethersuch a request was appropriatein lightof the circurnstancesof the
adoption of General Assembly resolution A/RES/ES-10114of 8 December 2003. On a
previous occasion the Court had clearly indicated that the political controversyat the
background of the questionwas not a reason for it to decline to give the advisoryopinion
29Interpretationof theAgreement of 25 March 1951beîween the WHOandEgypt, L C.J.
Reports 1980,p. 73,para. 33atp. 87.
30 CertainExpenses of the UN,Advisory opinionof 20 July 1962,I.C.J. Reports 1962,p.
151atp. 155.requested.3'"Differencesof views among Statesonlegalissues", explainedthe Court,"have
existedin practicallyevery advisoryproceeding; ifal1were agreed,the need to resort to the
Courtforadvicewouldnot
It makes no difference that resolution A/RES/ES-10114 was adopted amidst political
controversyor whether it was adoptedby a large majorityor not. What mattersis that it was
properly adoptedby the constitutionallyrequired majority.It has thusto be consideredas the
expressionofthe legally validwillofthe GeneralAssembly.
Furthermore,the way in which the decision was adopted is not a concem for the Court for
the purposes of Art.65 of the Statute, for neither the Charter nor the rules of procedure of
the GA contains specific provisions regarding the method of adopting a request for an
advisory opinion.
4.19. In the final analysis, the argument that the Court should not deal with a request
considered to be "political" boils down to restricting the Court to only dealing with the
technical details, notwith the fundamental questionsof the international legalorder, which
would mean a restraint on the Court's powers which is,of course, totally unacceptable.
b. The allegedabsenceof any usefullegalpurposeservedby an advisoryopinion on the
question
4.20. It may be argued that an advisory opinion on the question putto the Court would
serve no useful legalpurpose, and would thus be a futile exercise of thejudicial function,
which disqualifies the request on grounds of "propriety". The argument may go on to
" Legal Consequencesfor States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970). Advisoïy
Opinionof 21June 1971,I.C.J.Reports 1971,p. 16,para.40 atp. 27.
32
Ibid.,para.34 atp. 24.explain that this is because the question does not fa11in any of the categories of cases on
which the Court has given advisory opinionsup to the present.
4.21. The list of questions and matters dealtwith by the Court obviously cannot limitthe
ambit of its advisoryjurisdiction in any way.It is not a fast and hard list. In fact, it is quite
natural for a Court of law to be requested to address different issues. However,what is
controlling here is not this or any other list but the Statute of the Court. And the Statute is
crystal clear when it provides that "[tlhe Court may give an advisory opinion onany legal
question".33The only condition is that the question be of a "legal nature" and falling
within the jurisdiction of the requesting organ, which is for the General Assembly
coextensive withthe Charter.
4.22. Hereagainwouldbe an impermissible confusionbetweenthe advisoryandcontentious
functionsofthe Court.Thereisno need here,asin contentiousproceedings,toprove a "legal
interest" as a pre-condition of admissibility of a case before the Court. In advisory
proceedings,the Charter, including the Statute,leaves it to the discretionof the requesting
organ to evaluatethe appropriatenessand the eventual usefulnessof the requestedadvisory
opinionforitscurrentandfuturework.
4.23. TheCourthason numerousoccasionsaffinned its duty as "the principaljudicial organ
of theUnited~ations"?~to respondto suchrequests.It statedthat:
"The reply of the Court, itself Organ of the United Nations, represents its
participation in the activities of the Organization, and in principle should not be
refu~ed.'~~
33Article65 of the Statuteof theCourt.
34
Article92, Charterofthe UnitedNations.
35Interpretation of Peace Treaties first phase), Advisory Opinion,1C.J. Reports 1950,p.
65 at p. 71; and Resewations to the Conventionon the Prevention and Punishment of the
Crimeof Genocide, I.C.J.Reports 1951,p. 15atp. 19.Indeed,the Court ruledthat:
"no State, ... can prevent the giving of an Advisory Opinion which the United
Nationsconsiderstobe desirablein orderto obtain enlightenmentas to the course of
actionit shouldtake."36
It is not forthe Courtto decide in place ofthe GeneralAssemblyon the "desirability"or the
"opportunity" of the request or to over rule it, when the Assembly itself had already
considereditdesirable.
4.24. It may be argued,nevertheless, thatthe natureof the caseisthat the Courtwould
be unable to give an advisoryopinion which wouldbe of positive assistance tothe General
Assemblyandother organsof UnitedNations.It may alsobe argued thatthe Courtwouldbe
forced to overstepthe bounds of its function as "the principal judicial organ of the United
Nations"to become a political body.
4.25. It is submitted,however, that the advisoryopinionofthe Courtcanbe ofgreatpractical
value.The Courthas abundantlyreiteratedthat its advisoryactivityconstitutesits mainform
of participationin the activitiesof the United Nations of which it is the principal judicial
organ and that a requestinprincipleshould notbe refu~e~hepresent requestrelates to an
issue that lieswithin the hard core of the firstpurpose and principal fùnctionof the United
Nations, namelythe maintenanceof international peaceand security.It also relates to other
areasin whichthe General Assemblyis directlyinvolvedsuchhurnanrights,decolonisation,
includingprincipleof self-detemination, etc.
The question fallssquarelywithin the ambit of the Assembly's large mandateunder
Article 10covering"al1matters falling withinthe Chartery',as well as Articles 2(4), 11, 12
361c.J R.eports 1950,p.65atp. 71.
37LOCC.it ;.ndi.C.J.Reports 1951,p. 15atp.19.and 14 of the Charter. Answenng the request by the Court would enlighten the General
Assemblyon the legalcontextinwhichits activitiesarecarriedout.A statementbythe Court
on the legal consequences arisingfrom the construction of the Wall being built by Israel,
the occupying Power, in the Occupied Palestinian Territory, including in and around East
Jerusalem, as descnbed in the report of the Secretary-General, considering the rules and
principles of international law, including the Fourth Geneva Convention of 1949, and
relevant Security Council and General Assembly resolutions, cannotfailto have a positive
effect on the long-standing negotiationsin the United Nations and elsewhere, at least by
reducingthe scopeof alegal controversy.
c. The allegednefariouseffecton ongoingor future settlementefforts
4.26. It may be argued thatajudgment on the legal consequencesof the constructionof the
Wallmightjeopardize the ongoingand futuresettlement efforts.This, it is submitted,is pure
conjecture, and even odd. A pronouncement by the Court on the subject is in no way
incompatiblewith the pursuitof negotiations,especiallyif they wereto be conductedin the
lightofan authoritative declaration onthe issuesinvolved.
4.27. In the Legality of the threat or use of nuclear weapons, the Court refused to regard
the contention that a reply from the Court might adversely affect ongoing negotiations
and, therefore, be contraryto the interest of the United Nations as a compelling reason to
decline to exercise its jurisdiction. The Court answered this allegation by asserting that
"no matter what might be its conclusions in any opinion it might give, they would have
relevance for the continuing debate on the matter in the General Assembly and would
present an additional elementin the negotiationson the matter. ... That being so, the Court
cannot regard this factoras a compelling reason to declineto exerciseitsjurisdiction." 38
4.28. It is difficult tounderstandhow it can be believed by some that the declarationand
clarificationof the law, especiallywhen this is hished by the highest international legal
38 I.C.J Reports, 1996, para. 17instance,would not only have no relevanceto a solutionof a dispute,but evenmay have a
harmfül effectonthe achievementofsucha solution?
Confirmingthe illegalityof the constructionof the Wall and the determinationof its
legal consequencesby an authoritativestatement of the Court would play a majorrole in
clarifying the law. Therefore, such a pronouncementcannot harm the ongoing or future
negotiations aimedat settlingthe MiddleEast conflict.Onthe contrary, a pronouncementby
the Courtwouldlikelyfacilitatesuchsettlement. PARTTW0
SubstantiveQuestions
A. The illegality of the Wall
V. Historical Background:The Development ofthe Palestine Question
1. ThePalestinian Mandate (24 July1922)
5.1. At the Peace Conference following the First World War, the Allied Powers divided
up the Arab Temtories under the former Ottoman Empire into Mandates; Palestinebeing
assigned to Great Britain. Incorporated into the Mandate was the 1917 Balfour
Declaration, which favoured the establishment in Palestine of a homeland for the Jews.
The Preambleof the Mandate document stated that
"Whereas the Principalllied Powers have alsoagreed that the Mandatory should
be responsible for putting into effect the declaration originallymade on November
2"d1917, by the Government of His Bntannic Majesty, and adopted by the said
Powers, in favour of the establishment in Palestine of a national home for the
Jewish people, it being clearly understood that nothing should be done which
might prejudice the civil and religious rightsof existing non-Jewish Communities
in Palestine, or the rights and political status enjoyed by Jews in any other
Country;"
Article2of the Mandate document wenton to declarethat "The Mandatory shall be responsible for placingthe Country under such political,
administrative and economic conditions as well secure the establishment of the
Jewish national home, as laid down in the preamble, and the development of self-
governing institutions, and alsofor safeguardingthe civil and religious rights of al1
the inhabitantsof Palestine, irrespectiveof race and religion."
5.2. It should be noted that Palestine had been put under British Mandate accordingto the
Covenant of the League of Nations signed as a part of the Treaty of Versailles on June 28,
1919.Article22 ofthe Covenant contained the following paragraph:
"Certain Communities formerly belonging to the Turkish Empire have reached a
stage of development where their existence as independent nations can be
provisionally recognized subject to the rendering of administrative advice and
assistance by a Mandatory until such time as they are able to stand alone. The
wishes of these communities must be of principal consideration in the selection of
the Mandatory."
Palestine and the Palestinian People were a matter of concern during the Peace
Conference(1919). Such concern was reflectedin the King-Crane Commission's reporton
August 30, 1919.
5.3. President Wilson appointed two Arnericans,HenryKing and Charles ~rane.~~Britain
and France, however, declined to nominate members to the ~ommission~~,perhaps for
fear of being confronted by recommendations from their own delegates which might
conflict with their policies. The Commission'sfindings were suppressed and kept secret
for three years.Their report was not published until 1947.
39They were assisted by others who had alreadymade some study of Near East questions.
SeeJohn, Robert andHadawi, Sami.
The Palestine Diary - vol. 1, 1914-1945-Beirut 1970p. 137.
40 In fact, the British delegates, provisionallyappointed, went to Paris early in May 1919,
but the French had not appointed their delegates, the British Govemment declared
that it was willing to agreeto apurelyAmerican delegation.
ibidp. 137.5.4. ForPalestine, the King-Crane Commission, recommendedseriousmodification ofthe
extreme Zionist program "of unlimited immigration of Jews, looking finally to making
Palestine distinctly a Jewish state."The Balfour Declaration in favourof "a national home
for the Jewish people"' was not equivalent to making Palestine a Jewish State; nor could
the establishment of such a state be accomplished without the gravest trespass uponthe
"civil and religious rights of existing non-Jewish Communities inPalestine". The fact was
repeatedly exposed inthe Commission's Conferences withJewish representatives, for"the
Zionists looked fonvard to a practically complete dispossession of the present non-Jewish
inhabitants of Palestine, by various forms of purchase. Subjecting the Palestinian to
unlimited Jewish immigration, andto steady financial and social pressureto surrender the
land, would be a gross violation of the principle (self-determination)just quoted, and of
the people's rights, thoughit kept within the forms of law. The feelingagainst the Zionist
program was not confined to Palestine, but shared very generally throughout Syria... One
effect of urging the extreme Zionist program would be an intensification of anti-Jewish
feeling both in Palestine and in al1other portions of the world which look to Palestine as
the Holy and.'^'
5.5. A telegram was sent to from President Wilson Jerusalem by Mr.Crane and Dr. King
on June20,1919. It warned that,
"Probably at no time has race feelingbeen so sensitive asjust now. There was deep
belief in American peace declarations as in those of the British and French
Governrnents of 9 November 1918on right of people to self-detemination. Here
older population, both Moslemand Christian, take united and most hostile attitude
towards any extent of Jewish sovereignty over them. We doubt if any British
Governent or Arnerican officia1here believes that it is possible to carry out
Zionistprogram except through supportof large army."42
41 Ibidp. 139.
42 Ibidp. 1375.6. Palestinian demands for independence and resistance toJewish immigration led to a
rebellion in 1937. By that time the British Government received the Report of Palestine
Royal Commission (Peal Commission) on July 7, 1937, which was appointed in 1936
under Lord Peal. The commission recommended the termination of the Mandate for
Palestine and the creation of two sovereign independent states.During the 25 years of the
Palestine Mandate, from 1922 to 1947, large-scale Jewish immigration from abroad,
mainly from Eastern Europe took place, the numbers swelling in the 1930s with the
notorious Nazi persecution of Jewry. Over this period the Jewish population of Palestine,
composed principally of immigrants, increased from lessthan 10per cent in 191 7to over
30 per cent in 1947.By the mid-1940s, the Arab inhabitants comprised abouttwo thirds of
the territory's populationof 2 millions.
5.7. Faced by continuing terrorism and violence during and immediately afterthe Second
World War, Great Britain, as the Mandatory Power, tried to implementvarious formulas
to bring independence to a land ravaged by violence. A partition scheme, a formulae for
provisional autonomy, aunified independent Palestine wereal1considered and abandoned.
In 1947,a fmstrated Great Britain,tumed the problem over tothe United Nations.
5.8. When the United Nations was founded on 24 October 1945,the territory of Palestine
was still administrated by the United Kingdom of Great Britain and Northern Ireland
under a mandate received in 1922fromthe Leagueof Nations.
Drawing attention to "the desirabiliv of an early settlement in Palestine", the
British Government asked that a Special Session of the General Assembly be called
imrnediately in order to constitute and instruct a special committee to prepare a
preliminary study on the question of Palestine for consideration by the Assemblyat its
next regular session.2. U.N. General Assembly resolution 181 (II) on the Future Government of Palestine
(November 29,194 7)
5.9. At the First Special Session of the GeneralAssembly,which began on 28 April 1947,
a Special Committeeon Palestine was established.At the second regular session, after an
intense two-month-long debate, the General Assembly, on 29 November 1947, adopted
resolution 181 (II), approving with minor changes the Plan of Partition with Economic
Union as proposed by the majority in the Special Committee on Palestine. The partition
plan, a detailed four-part document attachedto the resolution, provided forthe termination
of the Mandate, the progressive withdrawalof British anned forces and the delineation of
boundaries betweenthe two States and Jerusalem.
The plan included:
1. The creation of the Arab andJewish States not later than 1October 1948;
2. The division of Palestine into eight parts: three were allotted to the Arab
State and three to the Jewish State; the seventh, the town of Jaffa, was to
form anArab enclave within Jewishtenitory; and
3. The international regime for Jerusalem, the eighth division, to be
administered bythe United Nations Trusteeship Council.
5.10. The adoption of resolution 181 (II) was followed by outbreaks of violence in
Palestine. Asthe situation deteriorated,the Security Council called for a special sessionof
the General Assembly,which then met from 16 April to 14 May 1948. On 17 April, the
Security Council called for the cessation of al1 military and paramilitary activities in
Palestine, andon 23 April it establishedthe Truce Commission to supervise and helpbring
about a ceasefire.For its part, the General Assemblyrelievedthe Palestine Commissionof
its responsibilities and decided to appoint a mediator entrusted with promoting a peacefül
settlement in cooperation with the Truce Commission. On 20 May, Count Folke
Bernadotte, Presidentofthe SwedishRed Cross,was chosen as United Nations Mediator.
5.11. On 14May 1948,the United Kingdomrelinquished its Mandate over Palestine and
disengaged its forces. On the following day, the Jewish Agency proclaimed theestablishment of the State of Israel on the temtory allotted to it by the partition plan.
Fierce hostilities immediately broke out between the Arab and Jewish communities. The
next day, regular troops of the neighboring Arab States entered the temtory to assist
Palestinian Arabs.
The fighting was halted after several weeks, through a four week truce called for
by the SecurityCouncil on 29 May 1948.
The truce went into effect on 11 June and was supervised by the United Nations
Mediator with the assistance of a group of international military observers, which came to
be known asthe United Nations Truce Supervision Organization (UNTSO).
Despite the efforts of the Mediator, no agreement couldbe reached on an extension
of the truce, and fightingbroke out again on 8 July.
5.12. On 15 July 1948, the Security Council decided in a resolution that the situation in
Palestine constituted a threat to the peace. It ordered a ceasefire and declared that failure to
comply would be construed as a breach of the peace requiring immediate consideration of
enforcement measures under Chapter VI1 of the United Nations Charter. In accordance
with that resolution, the second truce came into force. By that time, Israelcontrolleduch
of the temtory allotted to the Arab State by the partition resolution, including the western
part of Jerusalem.
5.13. Egypt and Jordan respectively administered the remaining portions of Gaza and the
West Bank of the Jordan River (which included East Jerusalem, or the old city). More
fighting took place in October 1948and March 1949, during which Israel took over other
areas, some originally allotted to the Arab State. In 1950, Jordan brought the West Bank
including EastJerusalem formallyunder itsjurisdiction pending a solution to the problem.
5.14. The hostilities also created a major humanitarian crisis, with almost 750,000
Palestiniansbeing uprooted fromtheir land andbecoming refugees.While in the middle of
negotiations between the parties, Count Bernadotte was shot and killed on 17 September1948 in the Israel-held sector of Jerusalem. Ralph Bunche, of the United States of
Arnerica,was appointed as Acting Mediator.
5.15. Between February and July 1949, under United Nations auspices, armistice
agreements were signed between Israel,on the one hand, and Egypt, Jordan, Lebanon and
Syriaon the other.
The agreements, which were similarin general content, acceptedthe establishment
of the armistice as an indispensable step towards the restoration of peace in Palestine.
They also made clear that the purpose of the armistice was not to establish or recognize
anytemtorial, custodial or other rights, claimsor interests of anyparty.
3. GeneralAssembly resolution 194 (110: Theright to return
5.16. At its third regular session, on 11 December 1948,the General Assembly adopted
resolution 194 (III), in which it delineated ways to resolve the Palestine problem.
Following suggestions containedin the report prepared by Count Bernadotte for a solution
to the increasingly intractable situationin Palestine,the Assembly declared that:
- Refugees wishing to retum to their homes and live at peace with their
neighbours shouldbe permitted to do so at the earliest practicable date;and
- Compensation shouldbe paid forthe propertyof those choosing notto return.
The Assembly also called for the demilitarization and intemationalization of
Jerusalem and for the protection of, and free access to, the holy places in Palestine.
Resolution 194 (III) also provided for the establishment of a three member United Nations
Conciliation Commission for Palestine, whichwas to assume the functions of the United
Nations Mediator insofar as it considered necessary. It was instructedto assist the parties
in achieving a final settlement on al1 outstanding questions and to facilitate therepatriation, resettlement and economic and social rehabilitation of the refugees. The
Assembly subsequently named France, Turkey andthe United Statesto the Commission.
5.17. In periodic reports submitted to the General Assembly since 1952,the Commission
has repeatedly stressed that its effortsto advance matters towards the implementation of
resolution 194(III)depend on substantial changes inthe attitudes of the parties.
The provisions of that resolution on the right of Palestinian refugees to retum have
been reassertedby the Assemblyvirtually everyyear since 1948.
Meanwhile, on 11 May 1949, Israel became a member of the United Nations. In
admitting Israel, the General Assembly specifically took noteof Israel's declarations and
explanations made earlier to the Assembly's Ad Hoc Political Committee regarding the
implementation of resolutions 181 (II) and 194 (III). Those declarations and explanations
referred, inter alia, to the intemational regime envisaged for Jerusalem,the problem of
Arab refugeesand boundary ~uestions.~~
43 The preamble to the GA resolution (273) admitting Israel to United Nations
membership specifically referred to Israel's undertakings to implement General
Assembly resolutions 181 (II) and 194 (III), the two resolutions that formed the
centre of the Palestine issue inthe United Nations:
" Having received the report of the Secunty Council on the application of Israel for
membershipin the United Nations,
" Noting that inthejudgment of the Security Council, Israelis a peace-loving State
and is able and willingto cany out the obligations containedIn the Charter,
" Nothing that the Secunty Council has recommended to the General Assembly
that it admit Israel to membershipin the United Nations,
"Noting furthermore the declaration by the State of Israel that it unreservedly
accepts the obligations of the United Nations Charter and undertakes to honour
them fromthe day when it becomesa Member of the United Nations',
" Recalling its resolutions of 29 November 1947and 11December 1948andtaking
note of the declarations and explanations made by the representative of the
Govemment of Israel before the hoc Political Committee in respect of the
implementationof the said resolutions,
" The General Assembly,
" Acting in discharge of its functionsunder Article 4 of the Charter and rule 125of
its rules of procedure,
" 1. Decides that Israel is a peace-loving State which accepts the obligations
contained in the Charter andis able and willingto carry out those obligations;
" 2. Decides to admit Israelto membership in the UnitedNations."4. Theoccupation of the WestBank and the Gaza Strip, 1967
5.18. In the 1967 war, Israel occupied the remaining temtory of Palestine, until then
under Jordanian and Egyptian control (the West Bankand Gaza Strip). This included the
remaining part of Jerusalem, which was subsequently annexedby Israel. The war brought
about a secondexodus of Palestinians, estimated athalf a million.
As a result of the 1967 Arab-Israel war, approximately 360,000 Palestinians were
forced to leavethe West Bank andGaza Strip for Jordan, Syria,Lebanon and Egypt. More
camps were constructed to accommodatethis large number of refugees.
The military victory scored by Israel against the Arab amies encouraged it to
launch air stnkes against Palestinian cities and towns adjacent to the 1948 truce line. The
air raids pushed scores of thousands of Palestinians to flee their village andtowns to seek
shelter out of the range of Israel artillery bombardment to more secure places like
Ramallah and Jericho cities.
However, the continued Israeli hostilities against civilian targets prompted more
people to leave these cities and towns for Jordan, whereUNRWA had established camps
atNemria and Karam villages eastof the Jordan river.
5.19. The 1967 war was a chapter of the Israeli strategy which has been exposed and
descnbed by Mr. Moshe Shertock (Sharett), former Prime Ministerof Israel, as reported
by LiviaRokach:
1. The Israel political/military establishment aimed at pushing the Arab States
into military confrontations whichthe Israeli leaders were certain of winning.
The goal of these confrontations was to modi@ the balance of power in the
regionradically, transforming Israelinto the major power inthe Middle East.
2. In order to achieve this strategicpurpose, Israeli leaders camed out large and
small-scale military operations aimed at civilian populations across the armistice lines, especially in the Palestinian territories of the West Bank and
Gaza, then under the control of Jordan and Egypt respectively. These
operations had a double purpose: to terrorize the populations, and to create a
permanent destabilization stemming from tensions between the Arab
governments and the populations who felt they were not adequately protected
against Israeli aggression.
3. The objectives of the Israeli leaders were to achieve a new territorial conquest
through war. They were not satisfied with the size of the State, and sought to
occupyat least theborders of Palestineunder the mandate.
4. They made political and military plans to disperse the Palestine refugees in
order to liquidate the claim of these refugees to be allowed to go back to their
homeland.
5. They planned and carried out subversive operations designedto dismember the
Arab World, defeat the Arab National Movement, and create puppet regimes
which would gravitatetothe regionalIsraelipower.44
5.Securiîy Councilresolution 242 (1967) of22 November 1967
5.20. The Security Council met on June 5, 1967, and continued its debates until
November22, 1967.It unanimously adopted resolution242 (1967) which states:
" The SecurityCouncil,
Expressingits continuing concern with the grave situation inthe Middle East,
44 Rokach, Livia, Israel's Sacred Terrorism,Belmont, Massachusetts, 1980, pp. 4-5
and Nakhleh, Encyclopediaof the PalestineProblem, 1991vol. II,p. 883.
36Emphasizing the inadmissibility of the acquisition of territoryby war and the need
to work for a just and lasting peace in which every State in the area can live in
security,
Emphasizing further that al1Member States in their acceptance of the Charter of
the United Nations have undertaken a commitment to act in accordance with
Article2 of the Charter.
1.Affirms that the fulfillment of Charter principles requires the establishment of a
just and lasting peace which should includethe application of both the following
principles:
(i) Withdrawal of Israel armed forces from territories occupiedin the
recent conflict;
(ii) Termination of al1claims or states of belligerency and respect for
and acknowledgement of the sovereignty, temtorial integrity and
political independence of every State in the area and their right to
live in peace within secure and recognized boundanes fiee fiom
threats or acts of force;
2. Affirms furtherthe necessity
(a) For guaranteeing fieedom of navigation through international
waterwaysin the area;
(b) For achievingajust settlementof the refugeeproblem;
(c) For guaranteeing the territorial inviolabilityand political independence
of every State in the area, through measures includingthe establishment
of demilitarized zones; 3. Requests the Secretary-Generalto designate a Special Representativeto proceed
to the Middle East to establish and maintain contacts with the States concerned in
order to promote agreement and assist efforts to achieve a peaceful and accepted
settlement in accordancewith the provisions and principles in this resolution;
4. Requests the Secretary-General to report to the Securitycouncil on the progress
of the efforts of the SpecialRepresentativeas soon aspossible."
5.21. It should be noted that the General Assembly at its Fifth Emergency Session
discussedthe Israeli aggressionon the three Arab countries fiom June 19to July 3, 1967.
Although the terms of resolution 242 were clear, Israel tried to misinterpret it in
orderto avoid its (i.e., Israel's)withdrawalfromthe whole occupied Arabterritories.
The proper and legal interpretation of resolution 242 must be made in the light of
the debates in the General Assembly and the Security Council on the subject and in
accordancewith the principles of internationallaw.
5.22. Many speakers at the Fifth Emergency Session in June-July, 1967, and in meetings
of the Security Council in June to November stressed the principles 45enshrined in the
resolutionwhich maybe summarisedas follows:
1. The principles are derived fiom Article 2 of the United Nations Charter which
states that "Al1members shall refrain in their international relations fiom the
45
General Assembly, Fifth Emergency Special Session, June United Nations General
Assembly Official Records, 1526thPlenary Meetings, 19 June, 1967; 1529th Plenary
Meetings, 21 June, 1967; 1530th Plenary Meetings, 21 June, 1967; 1531th Plenary
Meetings, 22 June, 1967; 1532'~Plenary Meetings, 22 June, 1967; 1533'~Plenary
Meetings, 23 June, 1967; 1536'~Plenary Meetings, 26 June, 1967; 1537'~Plenary
Meetings, 27 June, 1967; 1538~~Plenary Meetings, 27 June, 1967; 1539'~Plenary
Meetings, 28 June, 1967; 154znd Plenary Meetings, 29 June, 1967; 1546'~Plenary
Meetings, June, 1967; and Official Records of the Security Council, 1373'~Meeting, 9
November, 1967; 1379thMeeting, 16 November, 1967; 13 81''Meeting, 20 November,
1967;and 1382"~Meeting,22 November, 1967. threat or use of force against the territorial integrity or political independence
of anystate."
2. United Nations members do not accept war as means of settling disputes, nor
that a State should be allowed to extend its frontiers as a result of war. This
meansIsrael must withdraw.
3. The principle ofthe inadmissibilityof territorial acquisitionby force.
4. Total withdrawal of Israel forces from al1the temtories occupied by Israel as a
result of the war which began on 5 June, 1967.
5. Article 2 of the United Nations Charter outlawswar:
(a) Al1 members shall settle their international disputes by peaceful
means in such a manner that international peace and security and
justice are not endangered.
(b) Al1members shall refrain in their international relations fiom the
threat or use of force against the temtorial integrity or political
independenceof any State, or in any other manner inconsistent with
the purposes of the United Nations.
6. International Law condemns the use of force as an instrument of national
policy.
7. No aggressorcanbe permittedto enjoyand retain the fruits of his aggression.
8. It is not permissible for a countryto acquiretemtory of another statein order to
bargain from aposition of strength. 9. Rights cannot be established, temtorial disputes cannot be settled, boundaries
cannot be adjustedthrough the use of force.
10. Israeli forces must withdraw completely fiom al1the lands occupied in the
1967 war and must retum to the boundaries of the Armistice lines which
existed on the 4thof June, 1967.
It has been claimed that Resolution242 does not demand a total withdrawal fiom occupied
temtories, but only fiom some of them. This is based first on the resolution's referenceto
the right of every State to secure and recognized boundaries. It is also based on the
wording of the English version of the text which calls for "withdrawal of Israeli armed
forces from temtories occupied in the recent conflict", without a definite article before the
word "tenitories". This interpretation cannot be upheld for the Council's injunction is
unarnbiguous. The preamble refers unequivocally to"the inadmissibilityof the acquisition
of territory by war". This interpretation is supported also by the equally authentic French
version which requires Israel to withdraw "des territoires occupés". In addition, the
resolution's drafting history indicates that the Security Council had no intention of
endorsing Israeli annexationof anypart of the West Bank or Gaza Strip. For example, the
Indian ambassador to the Council stated in no uncertain terms that "(t)he principle of the
inadmissibility of force is absolutely fundamentalto Ourapproach and we cannot acceptor
acquiesce in anydecision that leavesout territories occupied by military conquestfiom the
provision of ~ithdrawal.''~ ~he Indian representative further cited two statements of
policy delivered atthe General Assembly'sFifth Emergency Session on 21 June 1967by
the British Foreign Secretary, Mr. George Brown, who stated the principles guiding the
attitude of the British Government:
"Clearly, such principles must derive fiom the United Nations Charter (with
reference to Article 2(4)) ... Here the words "temtorial integrity" have a direct
bearing on the question of withdrawal ... 1see no two ways about this; and 1can
46
SIPV.1382,222 November 1967,para.49.
40 state our position very clearly.In my view, it follows from the words in the Charter
that war shouldnot lead to territorialaggrandizement.''47
The ambassadors of a number of other States expressed similar views, including those of
the U.S.S.R. and France.
5.23. Resolution 242 emphasized the principle of the inadmissibility of the acquisition of
temtory by force and emphasized the duty of al1States to act according to Article 2(4) of
the Charter and demanded the withdrawal of Israel armed forces from temtories occupied
in the recent conflict. Thiseans that al1the Israeli armed forces must withdraw ffom al1
the occupied Arab Territories. The argument of Israel and its supporters that the article
"the" was not usedin Resolution 242 with "territoriesoccupied in the recent conflict" and,
therefore, Israel is not bound to withdraw from al1the occupied tenitories is false. The
statements of various delegations in the General Assembly and the Security Council
quoted above stated clearly, "that al1Israeli armed forces must be withdrawn ffom al1the
occupied Arab tenitories" and there is no ambiguity. The phrase used was withdrawal of
Israeli armed forces from territories occupied in the recent conflict". Does the use of
"Israeli armed forces" without "the" means that some of Israel armed forcedmay remain
in the occupied temtories? Certainly not! Moreover, the words in the French text are,
"Retrait des forcesarméesdes territoiresoccupés lors du récent conflit" means "the anned
forces" and "the occupiedtemtories".
The matter was summed up by the statementof Mr. Aiken, Deputy Prime Minister
and Minister for External Affairs of Ireland, before the Fifth Emergency Session of the
GeneralAssembly,who stated:
"1 submit, Israel has no right whatever to annex the territory of her
neighbours, and if the Security Council did not insist on the restoration of the
boundaries as of June 4, the verybasisof the Charterwould be destr~~ed.'~*
47GAOR,Fifth EmergencySpecial Session, 1529thmeeeting, paras. 14and 15.
48 General Assembly Fifth Emergency Session, June, United Nations General Assembly
official Records.Plenary Meeting, 1538th,June 27, 1967,P.5
415.24. The Security Council, by its Resolution 338 (1973) October 22, 1973, reaffirmed
resolution 242by stating that:
"The SecurityCouncil,
1. Calls upon al1parties to the present fighting to cease al1finng and terrninate al1
military activity immediately, no later than 12 hours after the moment of the
adoptionof this decision,in the positions they now occupy;
2. Calls upon the parties concemed to start immediately after the cease-fire the
implementationof SecurityCouncil resolution 242 (1967) in al1of its parts;
3. Decides that, immediately and concurrently with the cease-fire, negotiations
start between the parties concemed under appropriate auspices aimed at
establishingajust and durablepeace in the Middle East."
6. TheMadrid Conference
5.25. A Peace Conference on the Middle East was convened in Madrid on 30 October
1991, with the aim of achieving a just, lasting and comprehensive peace settlement
through direct negotiations along two tracks: between Israel and the Arab States, and
between Israel and the Palestinians, based on Security Council resolutions 242 (1967) and
338 (1973) (the "land forpeace" formula).
5.26. There were many documents paving the way for the Madrid peace Conference, but
special attention should be given to three of these documents for their significant
importanceto the Palestinianissue.
5.27. President Bush's speechin his Address to Congress on 6 March, 1991, has been
repeatedly cited as the Administration's principal policy statementon the post (Gulf) warorder in the Middle East, particularly for the four 'future challenges' it outlines and its
referenceto the principle of territoryforpeace.He said: 49
"Our commitment to peace in the Middle East does not end with the liberation of
Kuwait. Sotonight letme outline fourkey challengesto be met.
First, we must work togetherto create shared security arrangementinthe region.
Second, we must act to control the proliferation of weapons of mass destruction
and the missiles used to deliverthem.
And third, we must work to create new opportunities for peace and stability in the
Middle East. On the night 1 announced Operation Desert Storm, 1expressed my
hope that out of the horrors of war might come new momentum for peace. We
have learned in the modem age geography cannot guaranteesecurity and security
does not come frommilitarypower alone.
A comprehensive peace must be grounded in United Nations Security Council
Resolutions 242 and 338 and the principle of temtory for peace. This principle
must be elaborated to provide for Israelis security and recognition, and at the sarne
time for legitimate Palestinian political rights.Anything else would fail the twin
tests of faimess and security. The time has come to put an end to Arab-Israeli
conflict".
5.28. The second important text isthe Invitation to the Madrid Peace Conferenceon 30
October, 1991 :
"After extensive consultations with Arab states, Israel and the Palestinians, the
United States and the Soviet Union believe that an historie opportunity exists to
49 These excerpts are taken from the full text published in the Washington Post on 7
March, 1991 advance the prospect for genuine peace throughout theregion. The United States
and the Soviet Union are prepared to assist the parties to achieveajust, lasting and
comprehensive peace settlement, through direct negotiations along two tracks,
between Israel and the Arab states, and between Israeland the Palestinians, based
on United Nations Security Council Resolutions 242 and338. The objective of this
process is real peace. Toward that end,the president of the U.S. and the president
of the USSR invite you to a peace conference, which their countries will-sponsor,
followed Irnmediatelyby direct negotiations. The conference willbe convened in
Madrid on October 30,199 1.
*..
With respect to negotiations betweenIsrael andPalestinians who are part of
the joint Jordanian-Palestinian delegation, negotiations will be conducted in
phases, beginning with talks on interim self-government arrangements.These talks
will be conducted with the objective of reaching agreement within one year. Once
agreed, the interim self-government arrangements will last fora period of five
years; beginning the third year of the period of interim self-government
arrangements, negotiations will take place on permanent status.These permanent
status negotiations, and the negotiations between Israel and the Arab states, will
take place onthe basis of Resolutions 242 and 338 ..."
5.29. The third document to be quoted inthis connectionis the US Letter of Assurancesto
Palestiniansof 18October, 1991 :
"The Palestinian decisions to attend a peace conference to launch direct
negotiations with Israel represents an important step in the search for a
comprehensive, just and lasting peace in the region. The United States has long
believed that Palestinian participationis criticalto the successof our efforts.
In the context of the process on which we are embarking,we respond to
your requests for certain assurances related to this process. These assurancesconstitute US understanding and intentionsconceming the conferenceand ensuring
negotiations.
These assurances are consistent with United States policy and do not
undermine or contradict United Nations Security Council Resolutions 242 and
338. Moreover, there will be no assurances provided to one party that are not
known to al1the others. By this we can foster a sense of confidence and minimize
chancesformisunderstandings.
As President Bush stated in his March 6, 1991 address to Congress, the
United States continues to believe firmly that a comprehensive peace must be
grounded in United Nations Security Council Resolutions 242 and 338 and the
principle of territoryfor peace. Such an outcome must also provide for security and
recognition for al1 states in the region, including Israel, and for the legitimate
political rights of the Palestinians people. Anything else, the President noted,
would failthe twin tests of fairness and security.
The process we are trying to create offers Palestinians a way to achieve
these objectives. The United States believes that there should be an end to the
Israeli occupation which can occur only through genuine and meaningful
negotiations. The United States also believe that this process should create a new
relationship of mutuality where Palestinians and Israelis can respect one another's
security, identity, and political rights. We believe Palestinians should gain control
overpolitical, economic andotherdecisions that affecttheir lives and fate.
...
The United States understands how much importancePalestinians attach to
the question of east Jerusalem. Thus, we want to assure you that nothing
Palestinians do in choosing their delegation members in this phase of the process
will affect their claim to east Jerusalem, or be prejudicial or precedential to the
outcome of negotiations. It remains the firm position of the United States that
Jerusalem must never again be a divided city and that its final status should be decided by negotiations. Thus, we do not recognize Israel's annexationof east
Jerusalem orthe extension of its municipal boundaries, and we encourage al1sides
to avoid unilateral acts that would exacerbate local tension or make negotiations
more difficult or preempt their final outcome.It is also the United States position
that a Palestinian resident in Jordan with ties to a prominent Jerusalem family
wouldbe eligible tojoin the Jordanian sideof the delegation.
...
The United States has long believed that no party should take unilateral
actions that seek to predetermine issues that can only be resolved through
negotiations. In this regard the United States has opposed and will continue to
oppose settlement activity in the territories occupied in 1967, which remains an
obstacleto peace. ..."
7. TheOsloAccords
5.30. Negotiations between the Palestinian Liberation Organization (PLO) and Israel
resulted in mutual recognition in September 1993.Norwegian diplomats played a key role
in the process of negotiations which endedin Oslo. The Palestinians were granted limited
autonomy in the WestBank and the Gaza Strip accordingthe Declaration of Principles on
the autonomyof the Israeli-occupiedterritories.
5.3 1. A series of subsequent negotiations culminated in the mutual recognition between
the Govemment of State of Israel and Palestine LiberationOrganization,the representative
of the Palestinian People, and the signing by the two parties of the Declaration of
Principles on Interim Self-Govemment Arrangements in Washington, D.C., on 13
September, 1993, as well as the subsequent implementation agreement. That agreement
led to severalother positive developments,such as the partial withdrawal of Israeli forces,
the elections to the Palestinians Council and the Presidency of the Palestinian National
Authority, the partial release of prisoners and the establishment of a functioningadministration in the areas under Palestinians self-mle. The involvement of the United
Nations hasbeen essentialto the peace process.
5.32. In the Oslo Accords, the Palestinians recognized Israeli sovereignty over78% of
historic Palestine (23% more than Israel was granted pursuant to the 1947UN partition
plan) on the assumption that the Palestinians would be able to exercise sovereigntyover
the remaining 22%. Themajority of Palestinians acceptedthis compromise.
5.33. Pursuant to the Oslo agreements, Israeli forces withdrewfrom Jencho and the Gaza
Strip in May 1994.The Palestinian National Authority, assumed control ofthe areas.
In July 1994 President Arafat enteredGaza as the President of the newly founded
Palestinian National Authority, a political body responsible for goveming the self-rule
Palestinian areas,and in the mobilization andprovisionof international assistance.
5.34. The UN General Assembly welcomedthe Declaration of Principles as an important
step fonvard. The Assembly also reaffirmed that "the United Nations has a permanent
responsibility with respect to the question of Palestine until the question is resolved in al1
its aspects in a satisfactorymanner in accordance with internationallegitimacy."
S. The Wye River Plantation Accord
5.35. The peace process suffered many setbacksin the first few years of the Israeli Prime
Minister Benjamin Netanyahu's administration; a breakthrough was needed to keep the
peace process alive.
The Palestinian Authority President Yasser Arafat andPrime Minister Netanyahu
met at the Wye River Conference on 15 October, 1998 for intensive peace negotiations.
On 23 October, 1998.A peacedeal was signed, following a 21 hours marathon bargaining
session and the mediation of United States President Bill Clinton and King Hussein of
Jordan. The land-for-securitydeal was hailed as a major accomplishment. On 14 December, 1998, in implementation of the conditions set by the Wye
Plantation agreement, membersof the Palestine National Council voted toremove clauses
fromthe Palestine Liberation Organization's Chartercalling forthe destruction of Israel.
5.36. In December 1998,the Netanyahugovemment failed to obtain a confidence voteby
the Israeli Knesset. The Knesset voted to dissolve and hold early elections in May 1999.
This was mainly in protest over the govemment's handling of the peace process with the
Palestinian authorities. The succeeding Israeli Prime Minister, Ehud Barak, was to lead
Israelinto the peace process with the Palestinians and neighbouring states.
9. Camp David II
5.37. Between 11 and 24 July, 2000, President Clinton, President Arafat and Prime
Minister Barak, along with other officials and technical advisers met at Camp Dived in
order to negotiate a final settlement of the Palestine-Israel conflict based on the Oslo
accords.
The negotiations ended in failure. The Palestinians demanded sovereignty over
East Jerusalem includingthe Al-Haram-Al-Sharif(Al-Aqsa Mosque).They demanded full
implementationof the right of retum of the refugees under UN resolution 194(III).Israel
offeredproposals regarding the settlements thatwere modified in subsequent negotiations.
These were modified in various ways by U.S. compromise proposals. Israel claims that
they were far reaching and generous. The Palestinians claimed thatthe proposals would
have perpetuated the precise situationof the interim agreements, in whichthe West Bank
is divided into numerous small areas of Palestinian sovereignty interspersed with amuch
larger areaof Israeli sovereignty.
5.38. For a true and lasting peace between the Israeli and Palestinian peoples,there must
be two viable and independent States living as equal neighbours. Israel's Camp David
proposa1denied the Palestinian State viability and independence by dividing Palestinian
tenitory into four separate cantons entirely surrounded, and, therefore, controlled, byIsrael. The Camp David proposa1also denied Palestinians control over theirown borders,
airspace and water resources while legitimising and expanding illegal Israeli settlements in
Palestinian territory. Israel's Camp David proposal presented a 're-packaging'of military
occupation, not an end to military occupation.
10. TheSecond Intifada
5.39. On 28 September, 2000, a visit to Al-AqsaMosque by Israeli Pnme Minister Ariel
Sharon(then the Likud opposition leader) sparked a massive Palestinian rage in whatsoon
came to be known as the second Intifada E.ver since, daily confrontations have been
taking place between Palestinians and the Israeli army, the latter backed-up by armed
settlers.
An escalation of a bloody suppressive campaign against the Palestinian people has,
since, been undenvay. That campaign aimed at the assassinationof leaders and civilians,
demolition of homes, siege of cities and village, in addition to the destruction of the
Palestinian infrastructure. Al1 weapons available to Israel were utilized. The campaign
reached its peak with the utilization ofF-16 fighterjets and Apache helicopters,as well as
heavy armoury, against the Palestinian people.
5.40. The Security Council, in resolution 1322(2000,) deplored the provocation carried
out at Al-Haram-Al-Sharif in Jerusalem on 28 September, 2000, and the subsequent
violence there and in other holy places,as well as, in other areas throughout the temtories
occupied by Israel since 1967, resulting in many Palestinian death and many other
casualties. It condemned acts of violence, especially the excessive use of force against
Palestinians, resulting ininjury and loss of human life. It called upon Israel, the occupying
Power, to abide scrupulously by its legal obligations and its responsibilities under the
Fourth Geneva Convention and called for the irnrnediate cessation of violence. It also
requested that new provocative actions were avoided,and that the situation be retumed to
normality in a way which promoted the prospects for the Middle East peace process. 1
îurther stressed the importance of establishing a mechanism for a speedyand objectiveinquiry into the tragic events of the past few days with the aim of preventing their
repetition, and welcomed any efforts in that regard. The Council also called for the
immediate resumption of negotiations within the Middle East peace process on its agreed
basis with the aim of achieving an early final settlement between the Israeli and
Palestinian sides.
Il. TheRoad Map: President George W.Bush's Vision
5.41. By a letter dated 7 May, 2003, the United Nations Secretary-General transmitted to
the President of the Security Council, for the attention of the members of the Security
Council, the text of the Quartet's Performance-based Roadmapto a Permanent Two-State
Solution to the Israeli- Palestinian ConflictJS/2003/529)to realize the vision of President
Bush of two States, Israel and Palestine, living side by side in peace and security, as
affirmed in the Council's resolution 1397(2002).The Secretary-General indicated thatthe
text of the Road Map has been prepared by the Quartet (consisting of representatives of
the United Statesof Arnerica,the European Union, the Russian Federation and the United
Nations) and was presented to the Government of Israel and the Palestinian Authority on
30 April, 2003.
5.42. The above mentioned text is a performance-based and goal-driven road map, with
clear phases, tirnelines, target dates,and benchmarks aimed at progress through reciprocal
steps by the two parties in the political, security, economic, humanitarian, and institution-
building fields,underthe auspices of the Quartet.
The three successive and detailedphases areas follows:
Phase 1 Ending terror and violence, normalizing Palestinian life, and
building Palestinian Institution-present to May 2003.
Phase II Transition: June 2003 -December 2003. Phase III Permanent Status Agreement and end of the Israeli-Palestinian
conflict 2004-2005.
5.43. By resolution 1515(2003)the Security Council endorsed the Road Map, and called
on the parties to fulfill their obligations under the Road Map in cooperation with the
Quartetand to achievethe vision of two States livingsideby side in peace and security.
12.Arab Peace Initiatives
5.44. It should be noted that the Arab States, members of the Arab League, in line with
their previous peace initiatives,have reaffirmed at the Beirut Summit of March 2002 the
resolution taken in June 1996 at the Cairo Extra-Ordinary Arab Summit that ajust and
comprehensive peace in the Middle East is the strategic option of the Arab Countries, to
be achieved in accordance with international legality,which would require a comparable
commitmenton the part of the Israeli Government.
The Beirut Summit adoptedan Arab Peace Initiative based on the statementmade
by Crown-Prince Abdullah bin AbdulAziz of the Kingdom of Saudi Arabia calling for
full Israeli withdrawal from al1 the Arab territories occupied since June 1967, in
implementation of Security Council Resolutions 242 and 338, reaffirmed by the Madrid
conference of 1991 and the land for peace principle, and Israe17sacceptance of an
independent Palestinian State, with East Jerusalem as its capital, in return for the
establishment of normal relations in the context of a comprehensive settlement with
Israel. This initiative was welcomed by the Security Council through resolutions
1397(2002)and 1435(2002).
5.45. It is unfortunate that neither theArab Peace Initiative nor the Road Map received a
positive reaction from the Government of Israel. Since the Road Map was made public
early in the year 2002,Prime MinisterAriel Sharon was doing whatever he could to avoid,
by al1means, the implementationof the Road Map while declaring his readiness to join
the Map. At the time when the Quartetwas involvedin drafting the Road MapMr. Sharonstarted to undertake the implementation of an old project which had been rejected by his
predecessors: to build a huge Wall toseparate Israel and its settlements inthe Palestinian
occupied territories including East Jerusalem.
5.46 That unilateral project is a mere pre-emptive action against theRoad Map and al1
peace process initiatives. The construction of the Wall is a gross violation of laws and
customs and specific Israeli obligations and commitments as will be shown in the
following.VI. The Wall: factual, humanitarian, political and socio-economic
impact
6.1. As to the true nature and the impact of the Wall on the life of the Palestinian
population, there exist a number of documents within the framework of the United
Nations, by Specialised Agencies of the United Nations system, by other governmental
organisations, by human rights bodies and also by non-govemmental organisations. The
most important documentswritten under the auspices of the UnitedNations are the Report
of the Secretary-General prepared pursuant to General Assembly resolution ES-1011350
and reports submitted by Special Rapporteurs of the Commission on Human Rights, the
Report of the Special Rapporteur, John Dugard, on the situation of human rights in the
Palestinian tenitories occupied since 1967~'and that of the Special Rapporteur, Jean
Ziegler, on the Right to food.52SpecialisedAgencies (the World Bank andthe IMF)have
joined forces with the European Union andthe Governments of the United States and of
Nonvay in forming a Local Aid Coordinating Committee which has submitted a report
with regulard da te As.^ohurnanrights treatybodies, various conclusions, observations
and general comments of the Human Rights Committee, the Committee on Economic,
Social and Cultural Rights and the Committee on the Rights of the Child have to be
mentioned. As to non-govemmental organisations, a recent report by Amnesty
Internationadeserves attention.54
6.2. There is a remarkableconcurrenceamong these documents asto the evaluation of the
true nature and impact of the Wall.
The Wall has been established pursuant to a number of executive decisions taken
by the Israeli Cabinet, the Ministerial Committee for SecurityMatters, the Prime Minister
and the Minister of Defence. In addition,there are regulatoryinstruments (Orders)relating
50Doc. AIES-101248of 24 November 2003.
" Doc. ElCN41200416of 8September2003.
52DOC.E/CN.4/2004/1O/Add.2of 31October2003.
53The Impact of Israel's SeparationBamer on Affected West Bank Communities, Report
of the Mission to the Humanitarian and Emergency Policy Group (HEPG) of the Local
Aid CoordinationCommittee(LACC),May 2003, updates July and September2003.
" Amnesty International: Israel and the Occupied Temtones. Surviving under siege: The
impactof movementrestrictionson the right towork, September2003.to specific collateral measures, in particularthe right to reside in, enter intoor leave closed
areas." The construction also requires measures for the expropriationof private land.
6.3. The course ofthe Wall is described in the Report ofthe Secretary-General:
"Phases of the route completed or under construction
12. Phase A (excluding occupied East Jerusalem).This initial part of the Barrier,
which runs 123 kilometres fiom the Salem checkpoint north of Jenin to the
settlement of Elkana in the central West Bank, was declared completed 31 July
2003, although work continues in some parts. Much of Phase A construction
deviates from the Green ~ine,~~and incorporates Israeli settlements. United
Nations offices on the ground calculate that the Banier has put approximately
56,000 Palestinians in enclaves, areas encircled by the Barrier that open into the
West Bank. They include about 5,300 Palestinians in"closed areas" between the
Barrier and the Green Line where Israel requires permits or identity cards for
Palestinians who reside there or want to enter the area. The enclaves include the
town of Qalqiliya (pop. 41,606) and, to its south, a cluster of three villages with
about 7,300residents.
14. Jerusalem. The existing barrier and planned route around Jerusalem is beyond
the Green Line and,in some cases, the eastem municipalboundary of Jerusalem as
annexed by Israel. Completed sections includetwo parts totalling 19.5 kilometres
that flank Jerusalem, and a 1.5-kilometre concrete wall inthe eastem Jerusalem
neighbourhood of Abu Dis. The planned route includes a section due east of
Jerusalem that linksup with the existingAbu Dis wall; levellingof land has started
at its southem end.A second section runs throughthe northem Jerusalem suburb of
Al-Ram,which will be cut off from Jerusalem, and links withthe existingnorthem
55Report of the Secretary-General,loc. cit.para. 1et seq.
" This is often referredto as the "Seam-Zone" (footnotenot in the original).
54 barrier section at the Qalandia checkpoint. A third section will surround five
Palestinian communities north-west of Jerusalem, creating a 2,000-acre enclave
with 14,500people. A gap remains in the planned routedue east of Jerusalem near
the settlementofMaale Adumim.
5. Plannedphases of the route
15.Elkanato Ofer Camp.This section links the north-western endof the Jerusalem
Banier with the southem point of Phase A construction atElkana. It includes two
"depth bamers" that together create enclaves encompassing around 29,000 acres
and 72,000 Palestinians in 24 communities. The route deviates up to 22 kilometres
fi-omthe Green Line to includeseveral large settlements and approximately52,000
settlers in the "Ariel salient".Cabinet Decision 883 of lOctober does not explain
the nature of the Bamer around this area, wherethe Government of Israel has said
it would build disconnected "horseshoes" around the settlements. However, the
officia1map shows a planned route that seamlessly encompasses the settlement
block.
16. Southem West Bank. According tothe officia1map, this route of the Barrier in
the southem West Bank runs 115 kilometres fi-omthe Har Gilo settlement near
Jerusalem to the Carmel settlement near the Green Linesouth-east of Hebron. It
cuts several kilometres into the West Bank to encompass the Gush Etzion
settlement block and the settlementof Efi-at,creating enclaves with around 17,000
Palestinians. Ministry of Defence documents Saythat construction on this stage,
which has not startedyet,is slated for completionin 2005."
6.4. To highlight some important points: the Walldoes not follow the 1949 Armistice
Line. It is obviously designed to protect the numerous Israeli settlements in the West
Bank, which are unlawfulunder international law.It is a means to consolidatethese Israeli
settlements.It is, thus, a means to createfait accompli in relation to the existence of this
Israeli presence which should render any future agreement tothe contrary impossible. It,
thus, amountsto a defacto annexation.6.5. Israel contradicts this analysis by claiming that the Wall is necessary on security
grounds. The legal implications of this claim will be analysed in greater detail be10w.'~
But they are also contradicted as a matter of fact by a number of the reports mentioned
above. Thus, the Special Rapporteur of the UN Commission on Human Rights
main tain^:^'
"Possibly, the Wall will assist in the achievement of the Government's publicly
declared goal - to prevent suicide bombers from reaching Israeli temtory. Even
this, however, by some who point to the fact that most suicide bombers have
passed through checkpoints and thatthe Wall will not deter persons determined to
cross into Israel to commit acts of terrorism. That this is a valid complaint is
borne out by the cornments of the Israeli State Comptroller in his report of July
2002that 'IDFdocuments indicatethat mostof the suicide terronsts and carbombs
crossed the seam area into Israel through the checkpoints, where they undenvent
faultyand even shoddychecks".
The AmnestyInternationalReport 59 goeseven fùrther:
"However, the increasingly sweeping and stringent restrictions imposed
indiscriminately on al1 Palestinians have not put a stop to the attacks. On the
contrary, attacks intensified as restrictions on the movements of Palestinians
increased, calling into question the effectivenessof indiscriminate restrictions that
treat every Palestinian as a securitythreat and punishes entire comrnunities for the
crimes committed by a fewpeople."
6.6. The impact of the Wall on the life of the Palestinian population is also eloquently
describedin the Report of the Secretary-General:
57ChaptersIX and X.
58E/CN.4/2004/6para. 8.
59LOC. cit supra."The Barrier, in both completed and planned section, appears likelyto deepen the
fragmentationof the West Bank createdby the closure system Israel imposed after
the outbreak of hostilities in SeptemberIOctober2000. The main component of the
closure system is a senes of checkpoints and blockades that severely restrict the
movement of Palestinian people and goods, causingserious socio-economic harm.
Recent reports by the World Bank and the United Nations show that construction
has dramatically increasedsuch damage in communities along its route, primarily
through the loss of, or severely limited access to, land, jobs, and markets.
According to the Palestinian Central Bureau of Statistics, so far the Banier has
separated30 localities fiom health services, 22 fi-omschools, 8fiom primary water
sources and 3 fi-omelectricity networks.
Palestinians living in enclaves are facingsome of the harshest consequences of the
Barrier's construction and route.For example, the Barrier surrounds the town of
Qalqiliya, with the only exit and entry point controlled by an Israeli military
checkpoint. This has isolated the town fiom almost al1its agricultural land, while
surroundingvillages are separatedfiom its markets and services.A United Nations
hospital in the town has experienced a 40 per cent decrease in caseloads. Further
north, the Barrier is currently creating an enclave around the town of Nazlat Issa,
whose commercials areas have been destroyed through Israel's demolition of at
least sevenresidencesand 125shops.
Completed sectionsof the Barrier have had aserious impact on agriculture in what
is considered the "breadbasket"of the West Bank. In 2000, the three govermnent
of Jenin, Tulkarm and Qalqiliya produced US$ 220 million in agricultural output,
or 45 per cent of total agricultural production in the West Bank. Palestinian
cultivated land lying on the Barrier'sroute has been requisitioned and destroyed
and tens of thousands of trees have been uprooted. Fanners separated fi-omtheir land, and often also from their water sources, must cross the Banier via the
controlled gates. Recent harvests from many village have perished due to the
irregular opening times and the apparently arbitrary granting ofdenial of passage.
According to a recent World Food Programme survey, this has increased food
insecurity inthe area, where thereare 25.000 new recipients of food assistance as a
direct consequenceof the Barrier's construction.
The Barrier's route through Jerusalem will also severelyrestrict movement and
access for tens of thousands of urban Palestinians. A concrete wall through the
neighbourhood of Abu Dis has already effected access to jobs and essential social
services, notably schools and hospitals. The northem section of the Banier has
harmed long standing commercialand social connections fortens of thousands of
people, a phenomenon that will be repeated along much of the route through
Jerusalem. ..."
6.7. In the light of the purpose of the Wall to protect and promote the interests of the
Israeli settlers, the course of the Wall is drawn exclusively with their interest in mind,
regardlessof the situation, needs, existing links and economic conditionsof the Palestinian
communities. Therefore, itcuts the lifelinesof the Palestinian populations invarious ways.
In this respect, it adds to the misery already caused by a number of other existing
restrictions: roadblocks, closed areas and the bypass roads for the exclusive use of the
settlers (which,for the Palestinians, also constitute barriers).Thus, to go fiom one place to
another becomes impossibleor prohibitively burdensome andtime consuming.Al1reports
concur in stating that the regulated crossing points forthe local population, which Israel
claims to have established, do not exist in practice. Thus, contrary to what Israel has
claimed on various occasions, measures to mitigate the harm caused by the Wall do not
exist inpractice.
6.8. Thecombined effectof these restrictionsmakesit impossible
- for workersto goto or to retum from their placeof work; - for self-employed personsor businesses to have contact withtheir clients or to
deliver their commoditiesto their clients;
-
for farmersto have access to their agriculturalland or to bnng their products to
their traditional markets;
- for farmersto have accessto necessary resources,such as fertiliser;
- for persons in need of medical treatment to reach the places where this is
available,or fordoctorsto reach their patients;
- for childrento reach their schools; and
- for entirevillagesto have accessto water foranypurpose.
As these restrictions exist on a massive scale, they have made meaningful economic
activity next to impossible. As a consequence, there is unemployment, widespread misery
and malnutrition.
6.9. As a reaction to this misery, the affected population compelledto leave the enclosed
areas. The practical effect, if not the intended result, of these measures is inducing
Palestiniansto leavetheir traditionalhomes.It is a defacto expulsion.VII. The Wall asan internationally unlawful act -applicable law
7.1. As has been shown above, major elements of the question put to the Court by the
General Assembly relate to the legalityof the construction of the Wall in the light of the
applicable rules of international law. The request gives two examples of such norms,
namely the Fourth Geneva Conventionof 1949and relevant Security Council and General
Assembly resolutions. These resolutions, as will be shown, point to two other bodies of
international law, namely the law of human rights and to fundamental principles of the
Charter of the United Nations. Thus, there are three areas of international law whichhave
to be addressed in order to determine the legality or illegality of the construction of the
Wall, i.e. international humanitarian law, in particular those rules concerning occupied
territory, the international law of human rights and fundamental rules of general
international 1awand the Charter of the United Nations, in particular the right to self-
determination.
7.2. The first setof rules to be consideredare fundamentalnorms containedin the Charter
of the United Nations and in general international law, of which the most important
principle is the right to self-determination. It has beenrecognized by many resolutions of
United Nations organs that the Palestinian people possesses a right to self-determination.
That right has also been recognized by a numberof legal instruments adoptedduring the
process which took place in the early 1990's, in particular the so-called Oslo Accords.
These instruments, inter alia,make it clear that the territorial basis of this right of self-
determination is the tenitory occupied by Israel in 1967. It will be shown that the Wall
violates the status of Palestine as it has been authoritatively determined by the United
Nations, infiinges upon the Palestinian people's rightto self-determination, including its
ensuing right to statehood, and also its right to permanent sovereignty over natural
resources. Another fundamentalrule of general international law andof the UN Charter is
the prohibition of the useof force (Art. (4) of the Charter). It will be shown thatthe Wall
constitutes an acquisition of territory by the use of force which is prohibited as it
constitutes a violationof the saidprovision.7.3. The relevance forthe occupied Palestinianterritory of international humanitarian law
conceming occupation has been stressed on many occasions by organs of the United
Nations, by the General Assembly, the Security Council and also, in particular, by the
Commission on Human Rights. As far as treaty law is concerned, the two most relevant
instruments are the Hague Regulations of 189911907(arts. 42 et seq.) and the Fourth
Geneva Convention (arts.47 et seq.). The Hague Regulations are not binding as a matter
of treaty law, as neither Israel nor Palestine are parties thereto. There is no doubt,
however, that the relevant provisionsof the Hague Regulations constitutean expression of
customary internationallaw and, this will be shown in greaterdetail below, the same holds
true for the relevant provisionsof the Fourth Geneva Convention. It will be shown that the
Wall violatesa number of importantrules contained inthese instruments.
7.4. Last but notleast, a third set of noms are international guaranteesof human rights. A
number of UN-organs have used the law of human rights as a yardstick when dealing with
issues relating to Palestinian occupiedtemtory. The applicabilityof this body of law is the
basic assumption underlying recent actionby the Commission of Human Rights and its
Special~a~~orteur.~'It will be shown below in greaterdetail that relevant rules of the law
of human rights, in particular the Covenant on Civilian Political Rights,the Covenant on
Social Economicand Cultural Rights and the Convention onthe Rights of the Child apply
indeed. Although Israel is a party to these three instruments, it has to be mentioned, in
addition, that internationalhuman rights also applyas a matter of customary law. It willbe
shown thatthe Wallviolates a number of fundamentalhumanrights.
" Report submittedSeptember8,2003, UN Doc. EICN.41200416p ,ara. 5 et seq.
61VIII. The Wall - a violation of fundamental rules of general
international lawand of the Charter of the United Nations, in particular
of the right to self-determination
1. Introduction
8.1. This Section will show that the Occupied Palestinian Tenitory, including East
Jerusalem has been recognized by the United Nations and the internationalcommunity as
a temtory with an internationalstatus - a self-determinationunit - with borders based on
the Armistice Line of 1949. It will also show that the United Nations has a special
responsibility under the Charter and generalinternational law for the Temtory and for the
achievementof statehood.
8.2. This international status,eaffirmed under the Charter and the relevant resolutions of
the General Assembly and Security Council, flows fiom the recognition by the
international communityof the right to self-determinationof the Palestinianpeople, a right
also recognized as a peremptory nom and an erga omnes obligation. This right is
exercised within a recognized temtory and hence is directly linked to the notion of
temtorial sovereignty. It entails the right of a people to determine their interna1political
status, their externalstatusas statehoodand their right to permanent sovereigntyover their
natural resources. As a corollary to this right to self-determination, the obligation is
incumbent on al1members of the international community, including Israel, to recognise
this right and al1rights flowing from it, including respect for the unity and temtorial
integrity of the occupied Palestinian temtory. The contours of this Tenitory have been
established and recognized in numerous General Assembly and Security Council
resolutions.
8.3. On the other hand, flowing fiom the fact that this self-detemination unit has been
occupied since 1967, this Temtory also has the status of an Occupied Temtory whichentails the applicability of international humanitarian law and international human rights
law. This will be examinedin laterChapters of this Written Statement.
The Wall constructed by Israel, which cuts deep into the West Bank, isolating
communities into cantons, enclaves and "military zones" and entrenching illegal
settlements, constitutes a de facto annexation of temtories parts of the Palestinian
temtory.
8.4. The Wall is, thus, in direct violation of the territorial integrity of the self-
determination unit which it amputates and of the legal right to self-determination and
statehood of the Palestinian people. It violates one of the most fundamental principles of
contemporary international law: the right to self-detemination, by creating a situation
which is called "~antustanization~. This has been stated authoritatively in a number of
declarations and reports.62It has been confirmed by several other sources. The European
Union, sponsor of resolutionES11 0- 13,has declared that:
"The European Union is particularly concerned by the route marked out for the
Barrier in the Occupied West Bank. The envisaged departure of the Bamer fiom
the "Green Line" could prejudge future negotiations and make the two-State
solution physically impossible to implement.It would cause further humanitarian
and economic hardship to the Palestinians. Thousandsof Palestinians west of the
fence are being cut off fiom essential services inthe West Bank, Palestinians east
of the fence will lose accessto land and water resources. In this context the EU is
alamed by the designation of land between the Banier and the "green line" as a
" See Chapter VI. As the Special Rapporteur of the Commission on Human Rights, Jean
Ziegler, has stated: "Creatingsuch 'Bantustans7woulddepnve a futurePalestinian Stateof
any coherent land base and internationalborders, and prevent the building of a Palestinian
nation...".See Commission onHuman Rights, Economic, Social and Cultural Rights, The
Right to Food,Report by the Special Rapporteur, Jean Ziegler,Addendum, Mission to the
OccupiedPalestinian Territories(E/CN.4/2004/1O/Add.2),paras.18 and 19.
62 Report of the Secretary General and the Special Rapporteur on the right to food of the
Commission of Human Rights, and the Special Rapporteur on the situation of Human
Rights in the Palestinian occupied territories. closed military zone. This is a de-facto change in the legal status of Palestinians
living in this areawhich makes life for them even harder." 63
8.5. The Special Rapporteur, John Dugard, further elaborates this violation of the
right to self-determination:
"The right to self-determination is closely linked to the notion of territorial
sovereignty. A people can only exercise the right of self-determination within a
temtory. The amputation of Palestinian tenitory by the Wall seriously interferes
with the right of self-determination of the Palestinian people as it substantially
reduces the size of the self-detemination unit (already small) within which that
right is to be e~ercised."~~
8.6. The United Nations General Assembly in its Resolution A/RES/ES-10113of 27
October 2003, after reaffirming the principle of the inadmissibility of the acquisition of
temtory by force, the principle of equal rights and self-determination of peoples, and
relevant General Assembly resolutions, including resolution 181 (II) of 1947 , declares
itself
"Particularly concemed that the route marked out for the wall under construction
by Israel, the occupying Power, in the Occupied Palestinian Temtory, including in
and around East Jerusalem, could prejudge future negotiationsand make the two-
State solution physically impossible to implement and would cause further
humanitarian hardshiptothe Palestinians."
63
Statement by the Permanent Representative of Italy to the United Nations on behalf of
the European Union to the General Assembly of the United Nations on Illegal Israeli
Action in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory
(New York, 8 December,2003).
" Ibid.,para.158.7. The United Nations has a special responsibility for the Occupied Palestinian
Territory, including East Jerusalem. Over the years, it has constructed a complete Iegal
regime applicableto it.The United Nations7competence and responsibility,and that of the
General Assembly in particular, flows fromthe initial status of Palestine as a Mandate for
which international responsibilities were assumed as a "sacred trust of civilization7',not
dependent on the continued existence of the League of Nations. After the termination of
the Mandate, this responsibility of the General Assembly derives from the collective
recognition of the right to self-determinationand statehood of the Palestinian people, and
continues until suchtime as this right is fullyrealized. The General Assembly hasthus not
forfeited its supervisorypower over the Temtory, including its particular responsibility to
oversee any future international status agreement, to ensure its conformity with that right
and to put the two-State solution into effect.There is, moreover, a duty incumbent on al1
States, "to promote, throughjoint and separate action, realization of the principle.. ..and to
render assistance to the United Nations in carrying out the responsibilities entrusted to it
by the Charterregardingthe implementation oftheprinciple.. .". 65
2. Theinternational status ofthe territory as a mandated territory
8.8. The international status of Palestine initially derived from its status as a Mandate
detached from the Turkish Empire and placed in 1922 under the League of Nations
mandate system with Great Britain designated as the Mandatory Power. The Court, in its
Advisory Opinions rendered in the South West Afnca cases, recognized that the
supervisory functions over the administration of the Mandate devolved upon the United
Nations afterthe dissolutionof the ~ea~ue.~~
8.9. The competenceof the General Assemblyto exercise such supervisory functionswas
said to derive in part from its broad powersunder Article 10of the Charter. 67 This meant
65 GAResolution 2625 (XXV)
66International Status of South WestAfrica , Advisory Opinion, ICJReports 1950,p.128,
133.
67 Ibid., p.137; Voting Procedure on Questions relating to Reports and Petitionsthat the General Assembly became invested with the rights, duties and obligations
appurtenant to the supervisorypowers of the League of Nations over the Mandate, which
it exercised alsoby the establishment of institutional mechanisms todealwith the future of
the Temtory and the settlement of the Palestinian question, initially, the United Nations
Special Committee on Palestine (UNSCOP). It meant, too, that it had the competence to
authorize any change of status forthe mandated areas, since the power of the League also
included modification of the terms of the Mandate. This authority was asserted in its
decision to deal with Palestine and to propose a settlementof the matter by means of the
Partition Plan. The competence of the General Assembly to determine the status of
Jerusalem may also be drawnin part from the combined effects of Articles 13, 14 and 28
of the an date^^.
Res. 181 (II) laid down the concept of a two-State solution, with a special
international regime forthe City of Jerusalem tobe administeredby the United Nations.
8.10. Resolution 181(II) constituted recognition by the international communityf the
right to statehoodof the Arab Palestinians and meant that neitherthe international status of
concerning the Territory of south-West Africa,Advisory Opinion, ICJ Rep.1955, p.76;
Admissibility of Hearings of Petitioners by the Committee on South West Afric,1956,
p.27-28. Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South-West Africa) Notwithstanding Security CounciI Resolution 276 (1970),
Advisory Opinion,ICJRep.1971,p.16 at p.36
Art. 13:.Al1responsibilityin connection withthe Holy Places and religious buildingsor
sites in Palestine, including thatof preserving existing rights andof securing fiee access to
the Holy Places, religious buildings and sites and the fiee exercise of worship, while
ensunng the requirements of public order and decorum, is assumed by the Mandatory,
who shallbe responsible solely tothe League of Nations in al1matters connected herewith.
Art .4: A special commission shall be appointed bythe Mandatory to study, define and
determine the rights and claims in connection with the Holy Places and the rights and
claims relating to the different religious communities in Palestine. The method of
nomination, the composition and the functions of this Commission shall be submitted to
the Council of the League forits approval, and the Commission shallnot be appointed or
enter upon itsfunctionswithout the approvalof the Council.
Art. 28: In the event of the termination of the mandate hereby conferred upon the
Mandatory, the Councilof the League of Nations shall makesuch arrangementsas may be
deemed necessaryfor safeguarding in perpetuity,under guaranteeof the League,the rights
securedby Articles 13and 14,the territorynorthe primary responsibilityofthe General Assembly forthe achievement of
statehood cameto an end with the terminationof the Mandate.
General Assembly Resolution 273 (III), admitting Israel into the United Nations,
noted in its prearnble the declaration by theState of Israel that it "unreservedly acceptsthe
obligationsof the United Nations Charter.. .".It further stated: "Recallingits resolutions of
29 November 1947 and 11 December 1948 and taking note of the declarations and
explanations made by the representative of the Governrnent of Israel before the Ad hoc
Committeein respectof the implementationofthe said resolutions ..."
8.11. It can be argued, therefore, that Israel's admissionto the United Nations was
conditioned on its acceptance of Resolutions 181(II) and 194(III) which placed on it an
obligation to abide by their terms, including recognition of the right to statehood of the
Arab Palestinians, and to cooperate with the United Nations in their implementation.
8.12. Resolution 181(II) has become the foundationof the establishment of a Palestinian
State, thus the basis of legitimacy not only of the Israeli State but also of the Palestinian
State which was declared by the Palestine National Council at its 19'~Extraordinary
Sessionin Algiers on 15November 1988.
3. Theinternationalstatusof the territoryfollowingfrom the right to self-
determination
a. The right to Self-determinationin international law
8.13. Once the Mandate was terrninated, the international status of the Occupied
Palestinian Territory, including East Jerusalem, as well as the competence and
responsibility ofthe United Nations for theTerritory, came to be determined by reference
to the rightto self-determination.
8.14. The principle of self-determinationof peoples enshrined in Articles 1(2),55 and 56
of the Charter has been recognizedby a number of important declarations adoptedby theGeneral Assembly, in particular resolutions 1514(XV)and 2626(XXV). The principle has
also been confimed by the International Court of Justice in its Namibia opinion. 69
In the East Timor case, the Court said that "Portugal's assertion that the right of
peoples to self-determination, as it evolved from the Charter and fiom United Nations
practice, has an erga omnes character, is irreproachable."70 This erga omnes character
means that the right to self-determination entails a corresponding duty on the part of al1
States, as stated in Resolution 2625 : "to promote, through joint and separate action,
realization of the principle.. ..and to render assistanceto the United Nations in carryingout
the responsibilities entrusted to it by the Charter regarding the implementation of the
pnnciple. .."
b. The competence and responsibility of the General Assembly in the
realizationof the right to Self-Determinationand the legal effects ofits
Resolutions
8.15. The pronouncements ofthe General Assembly concemingthe intemational statusof
the Occupied Palestinian Territory, including East Jerusalem, the right to self-
determination of the Palestinian people and the determination of the illegality of the
construction of the Wall in breach of this status and right undoubtedlyproduce definitive
legal effects andprovide the basis for United Nationsaction.
8.16. Over the years the General Assembly has establishedits competence to determine
the status of non-self-goveming temtories, as well as to determine, through a process of
collective recognition, the peoples entitledto exercise their right to self-determination and
the legitimacy of their representatives. Its resolutions have entailed a host of legal
consequences. In its past practice in relation to Non-Self-Goveming temtories, the
General Assembly assertedits competence on numerous occasions to make such binding
69Namibia,op.cit.. p.31.
70 East Timor (Portugal v. Australia),1.C.J.Reports 1995,p. 90, atp. 102determinations conceming the status of temtories, intea rlia in the cases of Alaska and
Hawaii, Puerto Rico, Portuguese overseastemtories, Southern Rhodesia and Narnibia, in
order to state the rights and obligations whichthese territones had under the Charter and
general international law. This came to be an accepted part of United Nations practice,
and over the years the General Assembly has been responsible for overseeing the
realization of the nght to self-determination by numerous formercolonies and mandated
tenitones.
8.17. The International Court of Justice has dealt with the question of General Assembly
determinations in its consideration of the legal validity and effects of General Assembly
resolution 2145 (XXI) by which the Assembly declared the Mandate for South West
Africa revoked on the basis that South Africa had failed to fulfil its obligations under it
and that consequently, South Africa had no other right to administer the territory. In its
Advisory Opinion,the Court pointed to a whole numberof legal consequences which flow
fiom General Assembly declaratory resolutions andfiom determinations which the Court
has referred to as having "operative design".7' Thus the Court, replying to the objection
that the Assembly had made pronouncements which, not being ajudicial organ, it was not
competent to make, stated:"To deny to a political organof the United Nations .. the right
to act, on the argument that it lacks competence to render what is described as a judicial
decision, would not only be inconsistent but would amount to a complete denial of the
remedies available against fundamental breaches of an international ~ndertakin~"~~
Replying to the objection that this latter pronouncement of the Assembly was a decision
on a transfer of territory, the Court stated that this was "not a finding on facts, but the
formulationof a legal situation". Accordingto the Court, therefore,the General Assembly
did not decide on a transfer of territory but was only declaring the legal situation resulting
from the revocation of the mandate. "It would not be correct to assume that because the
General Assemblyis in principle vested with recornrnendatorypowers,it is debarred from
adopting, in specific cases within the framework of its competence, resolutions which
71Narnbia,op.c p.t..,
72Ibid p..49.make determinationsor have operative design". 73 The Court pointed out thatthe General
Assembly had recourse, in that case, to the Secunty Council, not because it did not have
the necessary legal powers to terminate the Mandate, but because it had no means of
execution to ensurethe withdrawal of South Africa.
8.18. The Court also maintained that "a binding determination made by a competent
organ of the United Nations to the effect that a situation is illegal cannot remain without
consequence...This decision entails a legal consequence, namely thatof putting an end to
an illegal situationand was opposable to al1States in the sense of barring erga omnes the
legality of a situation whichis maintained in violation of internationallaw."74
8.19. Even in relation to those resolutions recognized as being recommendations, Judge
Sir Hersh Lauterpacht, in his Separate Opinion on Voting Procedure on Questions
Relating to Reports and Petitions Concerning the Territory of South WestAfrica, strongly
denied that they have no legal effect whatsoever, forhe stated that these recornmendations
must be given "due consideration in good faith". Judge Lauterpacht continued:
"an Administering State (substitute for that Occupying State) which constantlysets
itself above the solemnly and repeatedly expressedjudgement of the Organization,
in particular as that judgment approximates to unanimity, may find that it has
overstepped the imperceptible line between impropnety and illegality, between
discretion and arbitrariness, betweenthe exercise of the legal nght to disregard the
recommendation and the abuse of that right, and that it has exposed itself to
consequences legitimately followingas a legalsanction".75.
74Ibid., p.50
Namibia, pp.52,56
75 Separate Opinion of Judge Lauterpacht, Advisory Opinion on Voting Procedure on
Questions Relating to Reports and Petitions Concerning the Territory of South West
Africa, ICJRep.1955,pp.118-119. c. The right to Self-Determination of the Palestinian People
8.20. The United Nations has over the years affirmed, in a series of resolutions, a corpus
of rules that would act as a legal framework for any negotiated settlement and for the
achievement of statehoodby the Palestinians. These rules remain the principled point of
departure for any resolution of the issue, including the question of legality of the
construction ofthe Wall.
8.21. The right of the Palestinian people to self-determination, referredto in the preamble
of Resolution ES 10114,constitutes a basic assumptionof the question put to the Court by
the General Assembly. The General Assemblyhas upheld and reaffirmed on innumerable
occasions the inalienable right to self-determinationof the Palestinian peoples, including
their rightto statehood.
General Assembly Resolution 2535B (XXIV) first stated that the causes of the
Palestinian problem "has arisen from the denial of their inalienable rights under the
Charter of the United Nations andthe Universal Declaration of Human Rights ...".Shortly
after this, the General Assembly issued Resolution 2672 C (XXV). This resolution
recognized unambiguously, the right of the Palestinian people to self-determination. In
this resolution, the General Asembly stated :
"Beanng in mind the principle of equal rights and self-determination of peoples
enshnned in Articles 1 and 55 of the Charter and more recently reaffirmed in the
Declaration on Principles of International Law concerning Friendly Relations and
Cooperationamong Statesin accordancewiththe Charter of the UnitedNations.
1. Recognize tsat the people of Palestine are entitled to equal rights and self-
determination,in accordancewith the Charterof the United Nations;
2. Declares that full respect for the inalienable rightsof the people of Palestine is
an indispensable element in the establishmentof ajust and lastingpeace in the
Middle East."8.22. Numerous other General Assembly resolutions followed.Some of those resolutions
affirmed this right, while others called forthe need to provide the Palestinian People with
the support necessary to ensure the actual implementation of this right. General Assembly
Resolution 3236 (XXIX) is significant in this respect by its strong reaffirmation of the
inalienable rightsof the Palestinians:
"Expressing its grave concern that the Palestinian people has been prevented from
enjoyingits inalienable rights, in particular its right toself-detemination,
Guidedbythe purposes andprinciples of the Charter,
Recalling its relevant resolutionswhich affirmthe right ofthe Palestinian peopleto
self-determination,
1. ReafJirms the inalienable rights of the Palestinian people in Palestine,
including:
a) The right to self-determinationwithoutextemal interference;
b) The right to national independence and sovereignty;
2. ReafJirms also the inalienable right of the Palestinians to retum to their
homes and property from which they have been displaced and uprooted,
and calls for theirretum;
3. Emphasizes that full respect forthe realizationof these inalienable rightsof
the Palestinian people are indispensable for the solutionof the Question of
Palestine;
4. Recognizes that the Palestinian people is a principal party in the
establishmentof ajust and durable peace in the Middle East; 5. Further recognize the nght of the Palestinian people to regain its rights by
al1means in accordance with the purposes and principles of the Charter of
the UnitedNations;
6. Appeals to al1States and internationalorganizationsto extend their support
to the Palestinian people in its struggle to restore its rights, in accordance
with the Charter;
7. Requests the Secretary-General to establish contacts with the Palestine
Liberation Organization on al1 matters concerning the question of
Palestine;"
8.23. As for the content of the right, this has been recognized as the right of the
Palestinian people to freely determine their intemal status and, in regard to their extemal
status, their right to statehood.Thetwo-Statesolution is thus in conformitywith this right.
d. The right of the Palestinian People to Permanent Sovereigntyover Natural
Resources
8.24. Theprincipleof permanent sovereigntyover naturalresources is an essentialelement
of sovereignty and of the right to self-determination, recognized in the landrnark
Resolution 1803 (XVIII) of 1963. It is now found in a number of instruments, not least
the two Human Rights Covenants. The term "permanent" means that the right is
inalienable and,thus, reflects the peremptorynature of the nom.
8.25. The principle of Permanent Sovereignty over natural resources has come today to
constitute the key principle of both international economic law and intemational
environmental law,thus blending together with the promotionof sustainabledevelopment.8.26. The General Assembly has applied the principle of permanent sovereignty over
natural resources to peoples and territories under occupation, foreign domination or
apartheid. On 15December, 1972,it affirmed the principle for the first time in respect of
the population of the territories occupied by ~srael.~~since then, a series of resolutions
have been adopted dealing specifically with permanent sovereignty of the Palestinian
people in the Occupied Palestinian Territory, including East Jerusalem, over their natural
resources which later came to embrace its national wealth and economic activities,
including land and ~ater.~~
8.27. In the latest senes of such resolutions, Resolution 581229adopted on 23 December
2003 entitled Permanent sovereignty of the Palestinian people in the occupied Palestinian
Territory, including East Jerusalem, and of the Arab population in the occupied Syrian
Golan over their naturalresources, the General Assembly:
"Reaffirmingthe principle of the permanent sovereignty of peoples under foreign
occupationovertheir natural resources,
Guided by the principles of the Charter of the United Nations, affirming the
inadmissibility of the acquisition of territory by force, and recalling relevant
Secunty Council resolutions, including resolutions 242 (1967) of 22 November
1967,465 (1980) of 1March 1980and 497 (1981)of 17December 1981,
Reaffirmingthe applicability of the Geneva Convention relative to the Protection
of Civilian Persons in Time of War, of 12 August 1949, to the Occupied
PalestinianTemtory, including East Jerusalem, and other Arab territories occupied
by Israel since 1967,
Expressing its concernat the exploitation by Israel, the occupying Power, of the
natural resources of the Occupied Palestinian Territory, including East Jerusalem,
and otherArabtenitones occupiedby Israel since 1967,
76 GA Resolution 3005(XXVII).
77 See e.g. GA Res.3336 (1974), 321161 (1977), 511190(1996), 541230 (1999)561204
(2001). Expressing its concern also at the extensive destruction by Israel,the occupying
Power, of agricultural land and orchards in the Occupied Palestinian Territory
duringthe recent period, including the uprootingof a vast number of olive trees,
Aware of the detrimental impactof the Israeli settlements on Palestinian and other
Arab natural resources, especially the confiscationof land and the forceddiversion
of water resources, and of the dire economic and social consequences in this
regard,
Aware also of the detrimental impact on Palestinian natural resourcesof the wall
being constructed by Israel inside the Occupied Palestinian Temtory, including in
and around East Jerusalem, and of its grave effect on the economic and social
conditionsof the Palestinian people,
1. ReafJirmsthe inalienable rights of the Palestinian people and the population of
the occupied Syrian Golan over their natural resources, includingland andwater;
2. Calls uponIsrael, the occupying Power, not to exploit,cause loss or depletion of
or endanger the natural resources in the Occupied Palestinian Temtory, including
East Jerusalem,and in the occupied SyrianGolan;
3. Recognizes the right of the Palestinian people to claim restitution as a result of
any exploitation, loss or depletion of, or danger to, their natural resources, and
expresses the hope that this issue will be dealt with inthe framework of the final
status negotiationsbetweenthe Palestinian and Israelisides;
It is significant that the vote was overwhelminglyin favour, thus reflecting the consensus
of the members of the United Nations that the Wall is a direct encroachrnenton the
inalienable rightto permanent sovereigntyover natural resourcesof the Palestinianpeople. e. The Territory over which the right to Self-Determination of the Palestinian
People may be exercised
8.28. As stated above, the right to self-determination can only be exercised over a
territory, hence the affirmation of the right to self-determinationof the Palestinian people
means the affirmation of the self-detemination unit in detemined boundaries. This has
been recognized by both the General Assembly and Security Council as the Tenitory
beyond the Armistice Lines of 1949 corresponding to the Territory occupied by Israel
since 1967,i.e. the West Bank, includingEast Jerusalem, and the Gaza Strip.
8.29. The confines of the State of Palestine have been confimed by the United Nations.
In 1988, the General Assembly responded to the decision of the Palestine National
Council of 15 November 1988 by adopting General Assembly resolution 43/177. This
Resolution acknowledged the proclamation of an independent State of Palestine,
consideredto be in line with Resolution 181 (II) "and in exercise of the inalienablerights
of the Palestinian people... "; it decided that, effective as of 15 December 1988, the
designation "Palestine" should be used in place of the designation "Palestine Liberation
Organizaton" in the United Nations system,without prejudice to the observer status of the
PLO.
8.30. The functionof Resolution 431177was to recognize and affirm the intrinsic legality
of a situation considered to be in conformity with GA Res 181 and other resolutions
recognizing the right to self-detemination of the Palestinian people, includingthe right to
a State of its own. Indeed, only the Israeli occupationhas prevented the State of Palestine
from exercisingauthorityoverthis tenitory.
8.31. The Security Councilhas supportedthe GeneralAssembly's findingsconcerningthe
international status of the Tenitory. It asserted its competence in respect of Palestine as
early as 1948 when, acting under Chapter VI1 of the Charter, it adopted Resolution 54
(1948) and determinedthatthe situation in Palestine constituteda threat to the peacender
Article 39. Actingon the basis of Article 40, it called for acease-fire, declaringthat failureto comply with the resolution by the parties concemed "would demonstrate the existence
of a breach of the peace within the meaning of Article 39 of the Charter, requiring
immediate considerationby the Security Council with a view to such further action under
Chapter VII" as it may decide. The resolution indicates that the terms of the resolution in
relation to the maintenance of the truce would remain in force "until a peacehl adjustment
of the future situationof Palestine is reached".
8.32. Resolution 242 (1967), confinned by Resolution 338, calls for withdrawal of Israel
fiom al1 Occupied Territories. It has reaffirmed a well-known principle of international
law, namely the inadmissibility of the acquisition of temtory by force which is the
corollary of the fundamental Charter principle prohibiting the threat or use of force. Ithas
determined that al1legislative and administrative measures and actions taken by Israel
altering the statusof Jerusalemorthe occupiedterritories, are nul1and void. 78
8.33. The Security Council has repeatedly undertaken to seek further action in the event
of Israel's non-cornpliance, although it has up to now failed to do ~0.~I ~n its resolution
476 (1980), the Security Council "1. ReafJirms the overriding necessity for ending the
prolonged occupation of Arab tenitories occupied by Israel since 1967, including
Jerusalem".
8.34. There is, thus, a whole body of binding noms that the Council has eitherreaffirmed
or established in regard to the obligation of Israel to respect the territorial integrity of the
self-determinationunit. This is confirmedby the Israeli-Palestinian agreementsand by the
fact that the Stateof Palestine is now recognizedby a great number of States.
78 e.g. Security Council Resolutions 242 (1967), 465, 476, 478, 484 (1980), 681 (1990).
79ny of these resolutionsare recalled in recent ones, for e.g. Resolution 1322(2000)
See inparticular SecurityCouncil Resolution 267 (1969. f. The duties and responsibilitiesof the General Assembly and the Security
Councilinthe peace process
8.35. The collective recognition of the right to self-determination of the Palestinian
People has as its corollarythe recognition of the competence and specialresponsibility for
Palestine of the United Nations which continues until the inalienable right of the
Palestinian People to self-determinationand full statehood has been realized. It is on the
basis of this responsibility that the UN has proceeded to outline the modalities of the
realization of this right to statehood and that it assumed the competence to convene a
series of conferences on the Middle East, and since 1991, to endorse the peace proposals
that havebeen put fonvard sincethe MadridPeace Conference in 1991.
8.36. Both the General Assembly and the Security Council have, thus, been intimately
concerned with peace negotiations. In Resolution 55/55 of 1 December 2000, the General
Assembly expressed "its full support for the ongoing peace process which began in
Madrid and the Declaration of Principles on Interim Self-Govemment Arrangements of
1993, as well as the subsequent implementation agreements, including the Israeli-
Palestinian Interim Agreement on the West Bank and the Gaza Strip of 1995 and the
Sharm el-Sheikh Memorandumof 1999".
8.37. The Security Council, by its unanimous adoption of Resolution 1515, has also
endorsed the Middle East Quartet's Road Map towards a permanent, two-State solution to
the Israeli-Palestinian conflict,a goal which it stated had to be achieved, inter alia on the
basis of Council Resolutions242 (1967), 338 (1973) and 1397(2002). Thus, the Security
Council also confirmedthis primary responsibilityof the UnitedNations.
8.38. Over the years, therefore,the United Nationshas affirmedin a series of resolutions:
1) The legitimate inalienable right of the Palestinian people to self-determination,
including the right to national independence and sovereignty, i.e. the right to
establishits own independent State. 2) The legitimacy of its representatives - the PL0 - granted Permanent Observer
Status in the General Assembly and otherUNbodies.
3) In regard to Israe17s occupation of the Palestinian Territory including East
Jerusalem since 1967, the principle of the inadmissibility of the acquisition of
tenitory by force and the application of the 1949 Geneva Conventions to the
Tenitory.
4) The consequent invalidity of al1 legislative and administrative measures and
actions taken by Israel purporting to alter the character and status of the Occupied
Palestinian Temtory, in particular, the so-called Basic Law on Jerusalem, the
establishment of settlements, the destruction of homes and property, the
confiscationof land, andthe policy of deportations.
5) The inalienablenght of the Palestinians to retum to their homes and property fiom
which they have been displaced and uprooted.
6) The necessity for any solution of the question of Palestine to fully respect for and
implementthese inalienable rights ofthe Palestinian people.
8.39. In various ways, the construction of the Wall infringes upon fundamental principles
of international law, the Charter of the United Nations and relevant resolutions of the
General Assemblyand SecurityCouncil:
1. It violates the intemational statusof Palestine as authoritatively determined
by the United Nations.
2. It violates the right to self-determination of the Palestinian People,
including the right to statehood.
3. It violates the right of the Palestinian people to permanent sovereigntyover
their natural resources.
4. The Wall - a violationof Art. 2 (4) of the Charter
8.40. It has been stated above on several occasions that the Wall arnounts to a defacto
annexation. This annexation is imposed on the Palestinian People through the use ofsuperior military force by Israel. As any other annexation brought about by the use of
force. it is unlawful.
8.41. Thepnnciple that the acquisitionof territory through the use of force is prohibited is
a consequence of the prohibition of the use of force. In elaborating this principle, the
General Assembly, in the Declaration on Principles of International Law Conceming
Friendly Relations and Co-operation among States in Accordance with the Charter of the
United ~ations*~fonnulates this rule as follows:
"The temtory of a State shall not be the object of acquisition by another State
resulting from the threat or use of force. No territorial acquisition resulting from
the threatoruse of force shall be recognisedas legal."
That formulation makesno exception for a use of force in self-defence. The reason is that
the annexation of territory, by definition, cannot constitute self-defence. It cannot be a
means to repel an armed attack, it is a measureof a completelydifferent nature.
8.42. This understanding of the rule is already the basis for the relevant holding of the
Secunty Council in resolution 242 (1967)" where its emphasizes "the inadmissibility of
the acquisitionof territory by war" without addressingthe questionwhich of the parties to
the conflict was the aggressor and which acted in self-defence. For the application of the
mle prohibiting the acquisition of territory through the use of force, that question is
irrelevant. In the same sense, numerous United Nationsbodies have repeatedlyconfirmed
the rulethat the acquisition of temtory through useof force is illegal.
8.43. Bearing al1the elements of an annexationby the use of force, the Wall constitutesa
violation ofArt.2 (4) of the Charter.
81Resolution 2625 (XXV).
See abovepara. 5.21.IX. The Wall - a violation of International HumanitarianLaw
1. Introduction
9.1. As pointed out above, the main sources of the international legal regime of
occupation in times of armed conflict are found in the Hague Regulations on Land
Warfare and in the Fourth Geneva Convention. These two instruments also reflect the
current stateof customary international law. Butin recent debate, the question whetherthe
Fourth Convention appliesas a matter of treaty lawhas received considerable attention.
2. Theapplicability of the Fourth GenevaConvention
9.2. The territory where the wall is being built was occupied by Israel in 1967. Israel
claims that the Fourth Convention could not apply to this occupation because at the
relevant time, this territory did not belong,as a matter of law, to Jordan nor to any other
party to the Geneva Conventions (argument of the "missing reversioner"). This is a
misconstruction of the scope of application of the Fourth Convention. The Convention
applies accordingto its art. 2 para. 1in anycase of an armed conflict betweentwo or more
High Contracting parties. In 1967, there was, indeed, such an armed conflict between, on
the one hand, Israel, and,on the other hand, Jordan, Egypt and Syria, al1four Statesbeing
parties to the Geneva Conventions. Withinthe fiamework of this conflict, Israel occupied
the territory of the West Bank including East Jenisalem, and also that of the Gaza Strip,
both territones not belonging to Israelas it had established itself withinthe boundary lines
drawnby the armistice agreements in 1949.There is no legalreason whatsoeverto exempt
those territories fiom the scope of application of the Fourth Convention in that conflict
between various parties to the Geneva Conventions. The argument of the missing
reversioner is simply irrelevant. Although put fonvard on several occasions by Israel, the
argument has consistently been rejected by both the Security Council and the General~ssernbl~.~'The applicationof the Fourth Conventiononcebeing established, the relevant
provisionscontinue to be applicableaccording to art. 6 of the Convention.
9.3. In addition, however, there are two further legal considerations which require the
application of the Convention. In 1988,Palestine acceded to the Conventions and to the
Protocols Additional theret~.~~ At that time, a number of States raised objections to that
accession arguing that Palestine was not a State. Be that as it may, when the Palestinian
people was even recognized by Israel as a subject of intemational law through the
conclusion of the Oslo Accords and the documents related thereto, the argument that
Palestine does not have the international legal capacity required for becoming a party to
the Geneva Conventions becomes untenable. It is considered to be a "power" within the
meaning of common art. 60159/139/155.That "power" is bound by the earlier declaration
of accession andis also entitled to the legalbenefits deriving from it.
But even if one does not accept that argument,the sarne result flows from an application
of art. 2 para. 3infine of the Fourth Convention. Palestine is to be considered a power
which "accepts and applies the provisions" of the Convention and according to the said
part of art.2, is therefore bound by the Conventions, while al1 other High Contracting
Partiesarealso bound in relation to that power.
For al1these reasons, the Fourth Conventionapplies as a matter of treaty law in relation to
the territory referred to as the Palestinian occupied temtory. This was confirmed in no
uncertain terms by the Conference of the High Contracting to the Fourth Geneva
Convention, inits Declaration adopted inGeneva,5 December 2001 :84
82See, inter alia,the Secunty Councilresolutions446 (1979), 465 (1980)and 681 (1990);
General Assemblyresolutions ES-1012,ES-1013.
83For an account see F. Ouguergouz,La Palestine et les Conventionde Genèvedu 12août
1949 ou l'histoire d'une adhésion avortée, in : L. Boisson de ChazoumesN. Gowlland-
Debbas (eds.), The International Legal System in Quest of Equity and Universality, Liber
AmicorumGeorgesAbi-Saab,pp. 507 et seq.
84http:llwww.eda.admin.chleda~ekome/forei~upoll4gcldocum2.~ar.~~~6.~p~il
e.pdf/m
g-0 11205 -4gcdeclam-e.pd. "The Participating High Contracting Parties reaffirmed the applicability of the
Fourth Convention to the Occupied Palestinian Territones, including East
Jerusalem. Furthermore, they reiterated the need for full respect for the provisions
of the said Conventionin that Territory."
9.4. As already pointed out, the rules of the Fourth Convention and of the Hague
Regulations also apply as a matter of customary international law. Where there might be
doubt in this respect in the case ofarticular rules, the question will be dealt with in more
detail below.
3. Allegedjustifications of measures taken by an occupyingpower
a. Militarynecessity and similar considerations
9.5. It is sometimes argued that security considerations justify the construction of the
~a11.'~Whether and to what extentthat argumentholds true as a matter of fact is discussed
elsewhere. As a matter of law, it has to be emphasized, however, that "security
considerations" or "military necessity" do not constitute catch al1justifications for any
violation of international humanitarian law. Various rules of international humanitarian
law recognize military necessity or similar concepts as a legal consideration limiting the
scope of the humanitarian obligation. But the balance between military and humanitarian
considerations is carefully struck in each of those provisions. It is, thus, in the
interpretation of each of the relevant rules of international humanitarian law that the
question whether military considerations might justify a measure taken by an occupying
power has to be analysedin detail.
85Report of the SecretaryGeneralprepared pursuant to GeneralAssembly Resolution ES-
10/13,UN Doc.AES-10/248, annexe1. b. The irrelevanceof the argument of self-defence
9.6. Israel also arguess6that the construction of the wall is justified as a measure of self-
defence within the meaning of art. 51 of the Charter. That argument is flawed because it
disregards the field of application of the notion of self-defence. It erroneouslyblurs the
dividing line betweenius in bel10and ius ad bellum. International humanitarianlaw aspart
of the ius in bel10applies equally to both sides of an international armed conflict,whether
it be the aggressor or the victim of an aggression. Also the victim of an armed attack,
which under the rules of the ius ad bellum is entitled to act in self-defence, is boundby the
mles of international humanitarian law in doing so. Thus, the argument of self-defence
cannot be used to justify any deviation from the applicable rules of international
humanitarian law. Thus, where a violation of international humanitarian law is at stake,
the argument of self-defencehas no place, it is irrelevant.
4. The duty to ensure adequateliving conditionsfor the population of the occupied
territory
9.7. It is a generalprinciple underlying a number ofspecificrules of the law of occupation
that it is the responsibilityof the occupying power tosee to it that life in occupiedtemtory
continues as normallyas possible. Various aspects of this general obligationare expressed
in different provisions of the applicable law. Those are, inter alia, the duty of the
occupying power to see to it that order and safety are maintained in the occupied temtory
(Hague Regulations art. 43). As to the relevant provisions of the Fourth Convention, art.
55 provides that the occupying power "has the duty of ensuring the food and medical
supplies of the population". A corollary of this duty is that the obligation established by
art. 59 that the occupying power shall agree to relief schemes if the temtory is
inadequately supplied. Art. 53, in addition, provides that the occupying power "has the
duty of ensuring and maintaining ...the medical and hospital establishments and services,
public health and energy in the occupied temtory ...".Finally, according to art. 50, the
occupying power "shall ... facilitate the proper working of al1institutions devoted to the
care and educationof children".
86Ibid.9.8. The construction of the wall systematically violates these rules. The wall renders
normal life of the civilian population impossible in many areas where the wall cuts
through the habitua1living spaces of the Palestinian population. This means a complete
disruption of the living conditions which is incompatible with the obligation of the
occupying power to ensure order and safety (art. 43 Hague Regulations). That provision
does not provide for any exception motivated by military reasons. The limitation of this
obligationof the occupying power lies in thatpower's ability: It shall "take al1steps in his
power". Where the occupying power systematically takes steps to disruptorder and safety
in the territory, this obligationis clearly violated.
9.9. The obligation underlying art.55 and 59 is a dutyto see to it that the alimentation of
the populationof an occupied territory is adequate. This implies notonly a duty to furnish,
if necessary,food supplies. That verynom is violated wherethe occupyingpower cuts off
access to existing food supplies. Preventing the farmers which produce food for the
population from doingjust that is equivalent to cutting off access to food. As the wall in
many places, and systematically so, prevents farmers from working ontheir agricultural
land by restricting their freedom of movement, this is a violation of the fundamental
obligationofthe occupying power toensurethe alimentationof the civilian population.
9.10. The same argument holds true as to the duty of the occupying power to ensure
access to medical supplies andmedical or hospital establishments and services (art.55 and
56 ofthe Fourth Convention). That obligation, too,is violatedwherepersons needing such
supplies or services are prevented from going to places where they are available. The
restrictionson the fieedom of movement which are the consequence of the construction of
the wall have just that effect. They, thus, constitute a violation of arts. 55 and 56 of the
Fourth Convention.
9.11. The duty of the occupying power to "facilitate the proper working of al1institutions
devoted to the care and education of children" (art. 50) is in the same way violated where
the measure of an occupying power prevent children from getting to the places wherethose institutions are situated. In many places, the wall prevents or will prevent children
from getting accessto their schools.Thus, art. 50 is violated, too.
9.12. These provisions do not provide for any exception in case of military necessity or
for reasons of security. The basic limitation of the duties of the occupying power just
described is its ability to ensure those supplies. The limitation clause of art. 55 and 56 is
"to the fùllest extent of the means available to it". Art. 50 dealing with educational
institutions, does not even contain a limitation clause of that kind. Thus, if the occupying
power considers it necessary, forsecurity reasons, to restrict the freedom of movement of
the civilian population,it must provide for alternative means to ensure that this population
has access to food,medical services and education.
5. Theduty to respectprîvate property in occupied territory
9.13. In a number of cases, private property of the Palestinian population wastaken and
destroyed by Israelbecause this was considered necessary to constructthe wall as planned
by the Israeli govemment.87This destructionof private property is a violationof art. 53 of
the Fourth Convention. That provision prohibits"any destruction by the occupyingpower
of real or persona1property ... except where such destruction is rendered absolutely
necessary by military operations". Property was destroyed, indeed, in cases where the
exception clause just cited was not applied. That exception clause does not refer to
security or military necessity in general. Itonly provides for those exceptions which are
necessitated by actual military operations. Butthe destruction, in the case of the wall, is
not necessitated by military operations of the Israel defence force. It is explained by a
perceived needto stop single individual actionsby actors which do not belong to aparty to
the conflict, which is a different matter. Therefore, the destruction of property which took
place to facilitate building the wallis not coveredby the exception clauseof art. 53 and is,
thus, unlawfùl.
87Report of the Secretary-General,AIES-101248,Annex 1Private property is also protected by art. 52 of the Hague Regulations. That provision,
however, does not even mention destruction, it being implied that the destruction of
property as a measure taken by the occupying power (as distinguished from measure
duringcombat)is simply ruled out. As to measures of requisition, they are limited to those
"for the necessities of the army of occupation". This includes, first of all, logistical needs.
If one excepts the idea that it includes also security needs,those are limited to the needsof
the army of occupation. This excludes taking into consideration purported security needs
of an (unlawful!) civilian presenceof the occupying power.
6. Theduty not to expel the civilianpopulation of the occupied territory
9.14.Art. 49 ofthe Fourth Convention stipulates:
"Individual or mass forcible transfers, as well as deportations fiom occupied
territory to the territory ...of any other country, occupied or not, are prohibited,
regardlessof their motive."
It has been shown above that it is the practical, if not the intended effect of the wall that
the population of the areas cut off by that barrier move away because of the unbearable
living condition^.^^
9.15. The construction of the wall thus constitutes a forbidden forcible mass transfer
withinthe meaning article49 of the Fourth Convention.
7. Theduty not to transfer the occupiedpower 'spopulation into occupied territory
9.16. The construction of the wall also violates art. 49 para. 6 of the Fourth Convention
which prohibits the occupying power fiom deporting or transfening parts of its own
88
Seeaboveparas. 6.6. - 6.8.civilian population into the temtory it occupies. In many instances the United Nations
bodies have held the creationof Israeli settlements inthe occupied territory to constitute a
violation of this provision.89The establishment ofthose settlements, which implymoving
parts of the civilian population to those settlements, constitutes a consistent policy of
transferring population, adopted by Israeli govemments.It is not at least a design to create
population structures which enhance, according to the view of significant parts of the
Israeli population, the chances of Israel living in "secure boundaries". Thus, the
establishment of those settlements is a considered means of a security policy to the
detriment of the original population of the occupied temtory. This is exactly the type of
measure art. 49para. 6 of the Fourth Convention is designed to prevent.
9.17. The course of the wall alreadybuilt andthe plans which have been published make it
crystal clear that the wall is not designed to protect the state of Israel in its 1967
boundaries, but to shield the settlements against what is perceived to be a threat from the
Arab side. Thepurpose of the measure, thus, isto consolidate and petrify a situation which
has been brought about by intemationally unlawful acts, a result which, consequently,is
unlawful. Actions designed to consolidate an unlawful situationare unlawful, too. This is
an additional reason why the constructionof the wall constitutes a violation of the Fourth
Geneva Convention, namelyits art. 49.
8. Theduty not to changethe status of an occupiedterritory
9.18. Art. 47 of the Fourth Convention expressly stipulates that the status of protected
persons may not be affected by an annexation expressed by the occupying power or any
similar attempt to change the statusof the temtory. This prohibition to use an attempted
change of status as a means to reduce the protection of the population of the occupied
territory is a rule of customary law which existed before the adoption of the text of the
89Seein particular SecurityCouncil resolution 446 (1979).
881949 Conventions and was recognized by the United States Military Tribunal in
Nurembergin itsjudgement in the Krupp Trial
9.19. This prohibition is rendered illusionaryor futile by the construction of the wall. The
construction of the wall, with its effect of displacing or expelling the Palestinian
population from the territories sealed off by the wall, not only constitutes de facto an
annexation, it is worse than a forma1annexation. A forma1illegal act could be considered
as null and void. But the Wall is a fact which itis futile to consider as null and void. Thus,
it indeed deprives the population of the protection to which it is entitled according to the
Fourth Convention. It is in this sensethat the Security~ouncil~'
"Calls once more upon Israel . .. to desist from taking any action which would
result in changing the legal status and geographicalnature and materially affectthe
demographic composition of the Arab territories occupied since 1967, including
Jenisalem, and, in particular, not to transfer parts of its own population into the
occupiedArab territories;"
9.20. Thus, the wall is a measure which is designed to de facto deprive the civilian
population of the Palestinian occupied territoryof its protection ensured by art. 47 of the
Fourth Convention. Therefore, the construction also constitutes a violation of that
provision.
90Trialsof War Criminals vol.X, 1949,pp. 130 et seq.
" Resolution446 (1979).
89X. The Wall- a violation of human rights law and standards
1. The applicability of the human rights law in a territory occupied during an
international armed confzict
10.1. Whether international treaties relatingto the protection of human rights apply in a
given situation depends, firstof all, on how their scope of application is defined by these
instruments. It is sometimes ~laimed,~~ however, that the scope of application, as far as a
situation of armed conflict is concemed, is limited by the application of the lex specialis
rule, which, it is claimed, would require the exclusive application of international
humanitarian law. But this thesis does not withstand a critical analysis. It is contradicted
by the fact that human rights and international humanitarian lawhave always been seen as
overlapping and complementary areas of international law which are not mutually
exclusive. This becomes clearif one considers the recent developmentof both areas of the
law. The International Conference on Human Rights held in Teheran in 1968 adopted,
under the title "Respect for Human Rights in Armed Conflicts", Resolution XII1which is
one of the most important eventswhich triggered the further development of international
humanitarian law and led to the adoption of the Protocols Additional to the Geneva
Conventions in 1977. The following preambular paragraph clearly shows the
complementarityofhuman rights and humanitarian law:
"Considering ..that the widespread violence and brutalityof Ourtimes, including
massacres, summary executions, tortures, inhuman treatment of prisoners, killing
of civilians in armed conflicts and the use of chemical and biological means of
warfare, including napalm bombing, erode human rights and engender counter-
br~talit~;"~~
92 See the position of Israel as reported by the Secretary-General,UN Doc. AIES-101248,
Annex 1.
93Emphasis added.10.2. The resolution then goes on to point to the classical formulation which reflectsthe
common and therefore complementary protective purpose of human rights and
international humanitarian law which is the famous Martens clause contained in Hague
ConventionNo. 3:
"... the inhabitants and the belligerents remainunder the protection and the rule of
the principles of the law of nations, as they result from the usages established
among civilized peoples, fi-omthe laws of humanity, and the dictates of public
conscience."
In our times, it is imperative to determinethe content ofhese "laws of humanity" and the
"dictates of public conscience" by reference tothe law of hurnanrights.
10.3. The General Assemblyof the United Nations, by its Resolution 2444 (XXIII) of 19
December 1968, still under the heading of "Respect for Human Rights in Armed
Conflicts", endorsed the resolution of Teheran Conference asking for a better
implementationand the further developmentof the laws of anned conflict. The Report of
the Secretary-General submittedpursuant to that resolution also carriedthe title "Human
Rights in Anned Conflict".
10.4. Sincethen, the fact that the law of human rights and international humanitarian law
are complementary and not mutually exclusive has been confirmed by many United
Nations and international treaty bodies. A recent example is the General Comment on
Article2 CCPR underdiscussion in the Human Rights Cornmittee:
"9. StatesParties arerequiredby article 2, paragraph 1,to respect and to ensure the
Covenantrights to al1persons who may be within their temtory and to al1persons
subjectto theirjurisdiction.Thismeansthat a Stateparty mustrespectand ensurethe
rights laiddown in the Covenant toanyone within the poweror effective controlof
that State Party, even if not situated within the territory of the State Party. As
indicatedin General Comment 15 adoptedat the twenty-seventhsession(1986),the enjoyment ofCovenantrights isnot limitedto citizensof StatesPartiesbut must also
be available to al1 individuals, regardless of nationality or statelessness, such as
asylum seekers, refugees, migrant workers and other persons, who may find
themselves in the temtory or subject to the jurisdiction of the State Party. This
principlealso appliesto those within the poweror effective controlof the forcesof a
Stateparty actingoutsideits temtory, includinganational contingentof a Stateparty
assignedto aninternationalpeace-keeping orpeace-enforcementoperation."
10.5. Tuming to the actual text of various human rights treaties, the principle of non-
exclusivity of human rights and humanitarian law is also reflected in various treaty
provisions. The CCPR, according to its article 4, applies "in time of public emergency
which threatens the lifeofthe nation", of which a waris a clear example. In this sense, the
European Conventionof HurnanRights speaks of "war or other public emergency" which
clearly implies that waris apublic emergencyin the senseof these human rights treaties.
10.6. A clearexample of the cumulative effectof the international protection providedby
human rights law and international humanitarian law is the Convention on the Rights of
the Child. As part and parce1of this nearly universally ratified human rights treaty, it is
provided:
"Article 38
1. States Parties undertake to respect and ensure respect for rules of international
humanitarian law applicable to them in armed conflict which are relevant to the
child."
10.7. The argument of the general mutual exclusivity of human nght law and
humanitarianlaw has, thus, tobe rejected. In order to determine the applicabilityof human
nghts treaties in times of armed conflict, it is necessary to tum more precisely to the
interpretationof the provisions defining their scopeof application.10.8. According to art.2 para. 1 CCPR, States Parties ensure the rights guaranteed by this
treaty "to al1 individuals within its territory and subject to its jurisdiction". These
conditions of the scope of application are not cumulative, they are alternative. This has
been recognized by the General Comment of the Human Rights Cornmittee just quoted
("This principle also applies tothose within the power or effective control of the forces of
a Stateparty acting outside its territory"). It has been confirrned inthe Conclusions of the
HumanRights Cornmitteerelatingto the Palestinian Occupied~enitories:~~
"The Committeethereforereiteratesthat, in thecwrent circumstances,the provisions
of the Covenant apply to the benefit of the population of the Occupied Territories,
for al1conductby the Stateparty'sauthoritiesor agents in those temtones that affect
the enjoyrnentof rights enshrinedin the Covenant and fa11within the arnbitof State
responsibilityof Israelundertheprinciplesofpublic internationallaw."
10.9. Similar provisions of other human rights instruments have been interpretedin the
sameway. The correspondingprovisionof the European ConventiononHuman Rights uses
the sameterminology.Therelevant partof Art. 1reads asfollows:
"The High ContractingParties shallsecure to everyone within theirjurisdiction the
rightsandfieedomsdefined(inthis Convention)".
Interpreting this provision in relation to a situation where the control excisedby Turkish
troopsinNorthernCypruswas atstake,the EuropeanCourtofHumanrightsheld:95
"62 ...the Court recalls that ... the concept of 'jurisdiction'under this provision is
not restricted to national tenitory of the High Contracting Parties .. . (T)he
responsibilityof the HighcontractingPartiescanbe involvedbecause of acts of their
94CCPRICOI78IISRof 2 1/08/2003,para. 11.
95
Loizidou case, (Preliminary Objections),Judgement of 23 March 1995,ser.A No. 310.
93 authorities,whether perfonned within oroutsidenational boundaries,whichproduce
effectsoutsidetheirtemtory .. .
Bearing in mind the object and purpose of the Convention, the responsibilityof a
Contracting Party may also arise when as a consequenceof a military action -
whether lawful or unlawful - it exercises effective control of an area outside its
national temtory. The obligationto secure,in such an area, the rightsand fieedoms
ser out in the Convention derives fiom the fact of such control whether it be
exercised directly, through its armed forces, or through a subordinate local
administration.
63. In this connection the respondent Government have acknowledged that the
applicant's loss of control of her property stemfrom the occupationof the northem
part of Cyprus by Turkish troops and by the establishment thereor the "TRNC".
Furthemore, it has not been disputed that the applicant was preventedby Turkish
troopsfiomgainingaccesstoher property.
64. It follows that such acts are capable of falling within Turkish '~urisdiction"
withinthe meaningofArticle 1 of the Convention."
For the purposes of the present proceedings, it must be stressed that the concept of
"jurisdiction"is not one of a "deiure" exerciseof governmentalpowers,but one of merede
facto control.Forinthe case decidedbythe ECHR,Turkeydid not claim to exercisede iure
in Northem Cyprus, nor did it exercise such powers. There is the government of the
"TRNC" which claims to exercise de iure. But the Court disregarded this claim and
emphasised the de facto control exercised by Turkey as the basis for applying the
Convention. In applying the Convention, the Court also considered explicitly ("whether
lawfulor unlawful")asirrelevantwhetherTurkey'spresence in NorthemCypruswas lawful
underthe iusad bellum.In a recent the Court denied that a foreign territory bombarded fromthe air was
subjecttothejurisdictionof the bombarding State.But the Courtdidnot put into questionits
earlierholdinginthe Loizidou case.
10.10. As to the CCPR,the conclusionis clear: this treaty appliesto the relationshipof an
occupyingpowerandthe populationof an occupiedterritoryas thispopulationis "subjectto
itsjurisdiction" withinthe meaningof article2 para. 1of the CCPR.
The sarneholds tme forthe Conventionon the Rightsof the Child.Its article2 uses the very
sarneterminology:
"1. States Parties shall respect and ensure the rights set forth in the present
Conventionto each child withintheirjurisdiction.. ."
10.11. TheCovenanton Economic,Socialand CulturalRightscontainsno similarprovision
limitingits scope of application.Thereis nothing to suggestthat the scope of applicationof
this Covenant is limited to serving as a yardstick for measures taken by States Parties
exclusively on their national temtory. Quite to the contrary: Article 2 stresses the
international of transboundary aspect of the obligations establishedby the CESCR. The
realizationof therightsshallbe achieved
"individuallyandthroughinternationalassistanceandcooperation".
This impliesthat Statesmustnot onlypromotethoserights ontheir nationalterritory,but are
also bound to facilitatethe enjoyment of these rights elsewhere in the world. It is only a
96Bankovit case, Judgement of 12December2000.logical consequence of this perspectiveof the scope of the obligations establishedby the
CESCR that they apply to the functions exercised by an occupying power in occupied
temtory.
10.12. It is in this sense that the Cornmitteeon Economic, Social and Cultural Rights has
indeed construedthe applicationof the CESCR. In its Concluding Observations adopted in
1998,the Committeestatesinrelationto the tenitories occupiedby ~srael:~~
"The Cornmitteeis of the view that the State's obligationsunderthe Covenant apply
to al1temtones andpopulationsunder its effectivecontrol. The Cornmitteetherefore
regrets that the State party was not prepared to provide adequate information in
relationto the occupiedtemtories."
Sincethen,the Committeehasrepeatedreiteratedthisstance.98
2. The question of the limitations of fundamental human rights - general
considerations
10.13. In a number of fora, it was claimed by Israel that measures it had taken were
necessary to fight against acts considered as terrorism. If put fonvard on this level of
generality,the claim tries to use the "fight against terrorism" as a catch al1exception to the
guarantees of human rights. This is just a misconception of the true content of the
protection provided to the individual byhuman rights noms and of their limitations.This
general claim has therefore repeatedly been rejected by UN bodies. These bodies
emphasize that measures taken to fight terronsm must nevertheless respect al1relevant
97UNDoc. E/C.l2/1/Add. 27 of 4 December 1998.
98DOC.E/C.l2/1/Add. 90 of 23 May 2003,para. 15;E/C.l2/llAdd. 69 of 31 August 2001,
para. 11.noms of international law, in particular the relevant protections provided by thelaw of
human rights, international humanitarian law and refugee law. In its resolution 1456
(2003),~~the SecurityCouncil holds:
"6. States must ensure that any measure to combat terrorism comply withal1their
obligationsunder international law, and should adopt such measures in accordance
with international law, in particular international human rights, refugee and
humanitarianlaw."
Resolutions of the General Assembly contain similar language:
"The General Assembly
...
1. Affirms that States must ensure that any measure taken to combat terrorism
complies with their obligations under international law, in particular international
humanrights, refugee and humanitarian la^;"'^^
10.14. This does not mean that human rights guarantees can never be limited for the sake
of the securityof a state or the fight against crime.Al1human rights guarantees are subject
to some kind of limitation. But those limitations must respect the relevant limitation
clauses contained in the respective provisions of the international instrument in question.
No limitation is unlimited. Measures restricting the protection of human rights must in
particular respect the principle of proportionality. This has to be assessed in relation to
each of the guarantees allegedto be violated.
10.15. Before proceeding to this analysisof the relevant treaty provisions, itis necessary
to briefly analyse another possible exception, namelythe derogation of certain rights. Art.
4 CCPR provides for such derogations, but subject to strict limitations. Israel is of the
" Resolution dated20 January 2003.
'O0 Res. 571219of 18 December 2002; see the similar text in GA Res. 581187 of 22
December 2003 and in Resolution 2003128 of 25 April 2003 of the Commission on
HumanRights.opinion that the state of emergency proclaimedin May 1948 continues to exist and has so
101 -
notified the Secretary-General of the United Nations in an attempt to observe the
procedural requirementsof article 4 para. 3 CCPR. Whether such a sweeping referenceto
an earlier state of emergency satisfies the requirements establishedby article 4 CCPR is at
leastdoubtful. But in any case, that derogation attempted by Israelonly concem Article 9
CCPR, which is not relevant in the present context, as will be shown below. Thus, the
derogation clause of article4 CCPR does not provide any justification for the measures
which are the object of the request submitted to the International Court of Justice in the
present case.
10.16. There are no such derogation clauses in the CESCR and in the Convention on the
Rights of the Child.
3. The Covenanton CivilandPolitical Rights:Articles 12, 13 and 26
a. Article 12
10.17. Art.12CCPRreads:
Everyone lawfully within the temtory of a State shall, within that tenitory, have
the right to liberty of movement and freedomto choosehis residence."
The Wall, and a number of equivalent measures taken by Israel, obviously constitute a
restriction of the liberty of movement. A Palestinian affectedby the wWall can no longer
move where he or she wants to move. He or she is prevented from going to the places
necessary for the requirementsof conducting a decent life: from reaching his agricultural
land in order to cultivate it, from going to his or her place of employment, from seeing
members ofhis or her family,from addressing competentpublic authorities, from goingto
101Notificationof 3 October 199 1, Source: United Nations Information Service.
98school. In many places,he or she can only go into one permitted direction, where heor she
does not want to go.
10.18. In order to be permissible, that infringement of the liberty of movement would
have to be coveredby the limitation clauseof art. 12para. 3. This is not the case.
First, a limitation mustbe "provided by law". This means that the limitation must, at least
as a rule, have its basis in some kind of statute.An executive decision of the govemment is
not sufficient for this purpose. But the construction of the Wall is a simple fact, based on
various decisions of the Israeli Cabinet, the Ministerial Committee for Security Matters,
the Prime Minister and the Minister of Defence. The decision has not taken the form of a
decree or a similar regulatory instrument. Thus, the forma1requirement of a permissible
limitation isnot fulfilled.
10.19. Furthermore,the limitation must be "necessary to protect national security, public
order" etc.
The fist condition which must be fulfilled is that the measure must be taken to attain one
of the purposes specifically listed, broad as these purposes may be. It has been
demonstrated'02that the true purpose of the wall is the petrification and consolidationof
the unlawful establishment of Israeli settlements and the erosion of Palestinian living
conditions in orderto induce them to finally leavethe territory cut off by the wall. This is,
without any doubt, not one of the purpose which couldjustify a limitation of the libertyof
movement within the meaningof art. 12para. 3.
10.20. But in order to be justified under the terms of para. 3, the measure would have to
be "necessary" for that purpose. This is not the case. Reliable reports, including from
Israeli sources, suggest that the Wall is not able to provide protection againstthe alleged
securityconcern.A measure 'O3not even capable to achieve a certainpurpose can neverbe
necessary for attainingit.
102 See abovepara. 6.4.
'O3 Seeabovepara. 6.5.10.21. Assuming, nevertheless, arguendi causa, that the measures taken are capable of
reducing that risk, the test of "necessity" implies the question whether there are other
measures also capable of reducing that risk, but constituting a lesserinfiingement of the
liberty of movement. If there are such alternative measures constituting a lesser
infnngement, the measure actuallytaken is not "necessary". What is necessary can only be
determinedby reference to a particularpurpose or goal. In this respect, it is quite clear that
the legitimate purpose, if any, to be pursued by the restrictive measures can only be
warding off a threatto Israel itself. As a consequence of the basic rule "ex iniuria ius non
oritur", it cannot be a lawful and legitimate purpose to defend an unlawful situation.
Therefore, the defence of the settlements which are unlawful under international law
cannot constitute a legitimatepurpose of national secunty which couldjustify a limitation
of the rights guaranteed by art. 12 CCPR. Whether the wall is necessary to protect the
settlements is therefore legally irrelevant.For the purpose of protecting the territory of the
State of Israel, the Wall is an unnecessary infringement of the liberty of movement in the
occupied territory. For that purpose, it would be enough to build a wall alongthe Israeli
border, the so-called Green Line. Therefore,the construction of the Wall fails the test of
being necessary for a legitimatepurpose, which is the prerequisite for a lawful limitation
within the meaning for art. 12para. 3 CCPR.
10.22.Be that as it may, the measure taken by Israel fails anyway the test a limitation of
fundamental rights has to pass: this is respect for the principle of proportionality. To
deprive an entire population of its access to their lifelines'04is excessive in relation to the
to threats of individual actions which may betaken by suicide bombers, abominable as the
results of some of those attacks have been. The Wall makes fieedom of movement for a
large part of the population of the occupied territories a completely illusoryright. Thus,
the measure destroys the very essence ofthe nght, a result which is never justifiable in
terms of a limitation.
10.23. The Wall constitutes a violationof art. 12CCPR.
'O4See abovepara. 6.7. b. Article 13
10.24. Art. 13prohibits the expulsion of aliens,while Art. 12para. 4 guarantees the right
to enter one's own country. It was perhaps beyond the imagination of the drafters of the
Covenant that a person might also be expelled from his or her own country. But the
prohibition of such an expulsion has to be derived from a systematic interpretationof both
provisions read together. As describedabove,'05the Wall, by destroying the possibility to
conduct a decent life in the areas cut off by the wall, has the practical effect of expelling
people from those areas and finally to leave Palestine. That expulsionis not accompanied
by the procedural guarantees required forany such measure according to Art. 13. It, thus,
cannot bejustified.
10.25. The Wall constitutes a violationof article 13CCPR.
c. Article 26
10.26. Art. 26 prohibits, in a very comprehensive at, al1forms of discrimination. The
article alsoprovides an illustrative listof forbiddencriteria of distinction.
The wall is a measure clearly targeted againstthe Palestinian population. Itis designed to
separate areas of settlements on the basis of anethnic criterion. It systematically restrict
the fi-eedomof movement, and thereby underminesthe living conditions,of the Palestinian
population, not ofany other group. It is, thus, aninstrument of discrimination based onthe
groundof "ethnic origin"within the meaningof Art. 26.
10.27. The Wall constitutes a violationof art. 26 CCPR.
'O5Ibid. 4. The Covenant on Economic,Social and CulturalRights
10.28. The rights guaranteed by the CESCR are promotional in nature. The Parties
"undertake to take steps ...,to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in the present
Covenant ..." Thus, where the Covenant recognizes a right to work (article 6), this does
not mean that each individual musthave ajudicially enforceable right against the stateto
get, or not to loose, an employrnent.The obligation imposed upon States by the Covenant
is of a different nature: The State is obliged to take different political, legislativeor other
steps to promote full employrnent.Butthis positive of affirmative obligation to promote a
goal (in the case of article 6: employrnent) has as a consequence also a negative duty, a
prohibition. The promotional duty is violated where the State takes steps which make it
impossible, for the persons affected, to attainthe goal. In other words: the right to work is
violated if a State prevent persons fi-omexercising a gainful activity he or she would
otherwise have. It is in this negativeor prohibitive aspect that theconstruction of the wall
violates a number of rights guaranteedin the CESCR. On the basis of this legal reasoning,
the Committee on Economic, Social and Cultural Rights has repeatedly expressed its
concem about the violationsof theserights in the Palestinian occupiedterrit~ries.'~~
10.29. More concretely,the constructionof the wall violatesthe following rights:
The wall makes it impossible for many people to have access to their place of work.'07
Therefore,it violates the right to work (article6).
The wall systematically separates families. Therefore, theduty of the State to accord the
widest possible protectionand assistance to the family (article 10)is violated.
106Concluding Observationsof the Cornrnittee, UN Doc. E/C.12/1/Add.27paras. 8 et seq.,
69 paras. 11et seq., 69 paras. 15et seq.
'O7See abovepara. 6.8.The wall makes it impossible for many people to exercise activities necessary to gain a
livelihood, by separating them from the place where such activities are to be exercised,be
dependant work or the cultivation of farmers' agriculturalland.lo8Therefore, the right to
an adequate standard of living (article1.1)is violated.
The wall bars many people from access to medical treatment centers or ho~~itals.'~~
Medical doctors cannot go to their patients. Therefore the right to the enjoyment of the
highest attainable standardof physical and mental health (article12)is violated.
The wall deprives children of access to their ~chools."~Therefore, the right to education
(article 13)is violated.
5. The Convention on the Rights ofthe Child
10.31. The Conventionon the Rights of the Child, in addition to addressing a numberof
issues specifically relevant for the situation of children (e.g. adoption, tutelage, separated
parents), takes over a numberof provisions of the two Covenants and reformulates them
with a special emphasison the needs and the special vulnerabilityof children.In respect of
social rights, the provisions of the Convention are also of a promotional nature. The
formulations used in article 4 of the Convention resemble those of article 2 CESCR,
discussed above.Thus, what has been said above conceming the violation of certain rights
also applies in the caseof the Convention.The rights
- to the enjoyment of the highest attainable standardof health and to facilities
for the treatment of illness and rehabilitation of health (article 24 of the
Convention);
- to a standard of living adequate for the child's physical, mental, spiritual,
moral and social development (article 27);
- to education(article28)
are thus violated.
'O8Ibid.
'O9Ibid.
''OIbid.B. The Wall - legal consequences arising from the unlawful construction
of the Wall
11.1. The legal consequences deriving fromthe fact that Israel violated a number of
noms of international law are twofold. These violations tngger the international
responsibilityof the State of Israel and the criminalliability of the decision-makers.
1. Thelaw of State responsibility - the obligations of the State of Israel
11.2. The violations committed by Israel constitute unlawful acts engaging the
international responsibility of Israel towards Palestinian People, the victim of these
unlawful acts.
11.3. The first legal consequence arisingunder the law of State responsibility is a duty to
cease the act (article 30 ILC Draft Articles on the Responsibility of States). It is of
particular importance thatthe Court clarifies this obligationas the construction of the Wall
continues. That construction must cease immediately.
11.4. Furthermore, Israel is under a duty to make full reparation for the injury caused by
this unlawful act (art. 31 ILC Draft). This reparation includes, first, restitution. There is,
thus, a duty "to re-establish the situation which existed before the wrongfül act was
committed" (article35 ILC Draft). This means that the Wall has to be tom downby Israel.
It also meansthat the land used for the purpose of building the Wall must be given back to
the PNA or to the original owners. That restitution in kind takes precedence over any
payment of compensation.11.5. The Wall itself is a fact based on a simple governmental decision."' But there are a
number of regulatory acts related tothe construction of the Wall, for instance Orders dated
October 2"d2003 establishing restrictions on the right to enter or leave, or to reside in, the
so-called Seam-Zone between the Wall and the 1949 Armistice Line. As a form of
restitution, suchregulatory acts must be rescinded.
11.6. The existence of the Wall has, in addition, resulted in considerable financiallosses
sufferedby Palestinians. Ithas been stated, inter alia, that Palestinian were preventedfrom
using their property, includingtheir agricultural land, that persons werebarred from their
places of work and were thus unable to eam money. Palestine is entitled to claim from
Israel reparationof these financial damages sufferedby its population.
2. The law of State responsibility - the rights and duties of third States
11.7. The norms which have been violated by Israel constitute erga omnes-obligations,
which means that they are "owed to the international community as a whole" (article 48
(l)(b) ILC Draft). There is no doubt that the fundamental principles of Charter law,
international humanitarian law and the law of human rights fa11within this category of
norms. Thus, other States may "take lawful measures" against Israel "to ensure the
cessation of the breach and reparation in the interest of the injured State or of the
beneficiaries of the obligation breached" (article 54 ILC Draft), i.e. in the interest of
Palestine and the Palestinians affectedby the Wall.
11.8. In relation to international humanitarian law, this right even constitutes a duty
according to common article 1of the Conventions:
"The High Contracting Parties undertaketo respect and to ensure respect for the
present Conventioninal1circumstances."
111Seeabovepara. 10.18.Various United Nations bodies as well as the Conference of the Parties to the Fourth
Conventionhave repeatedly called uponal1States to use means at their disposa1in order to
make Israel desist from unlawful measurestaken in relation to the occupied Palestinian
temtories, in particular frommeasures violatingthe Fourth f on vent ion."^
11.9. In addition, most of the noms violated by Israel constitute peremptory noms of
international law, ius cogens. This applies to the basic principles of the law of the United
Nation, to international humanitarian Law, at least to its core rules, and to the law of
human rights. Thus, Israel's violations have tobe qualified as a "serious breach of an
obligation arising under a peremptory nom of general international law" according to
article 40 ILC Draft. The breach is serious because it involves, indeed, "a gross and
systematic failure by the responsible State to fulfil the obligation" (Art. 40 para. 2).
According to article 41, this qualification of the breach entails the following
consequences:
- States shall cooperate toensurethe cessation of the construction;
- no State shall render assistanceto that construction;
-
no State shall recognize any situation created by or as a consequence of the
construction.
11.10. The latter point is of particular importance as the construction has a dangerous
potential of leading to a new defacto partition ofthe remainder of Palestine which may be
followed by attempts to achieve a de iure recognition. States are under a duty to abstain
from this type of recognition.
112
Seein particular the references quoted supra para.9.2. and 9.3.
106 3. The responsibilities and duties of the United Nations and the
SpecialisedAgencies
11.11. An appropriate reaction to the unlawful act committed by Israel, as now
determined by the Court, squarely falls within ambit of the tasks and responsibilities of
UN organs.
11.12. It has been pointed out above1l3that the General Assembly bears a particular
responsibility in this respect in the light of its powers and functions as a successor of the
supervisory organ of the mandates system and due to its special responsibility for the
defence and promotion of the right of self-determination. As the Wall fi-ustratesthis very
right, it is necessary forthe General Assembly to take the measures required to redress this
fi-ustration.
11.13. As to the Security Council, it has dealt with the question of Palestine in the
exercise of its powers under Ch. VI1 of the Charter since 1948. Regrettably, since that
time, a situation as defined in Art.39 of the Charterhas not ceased to exist. Consequently,
the Security Council is still discussing that question as a matter of Ch. VII. The
construction has aggravatedthe situation. It is, thus, part of the duties and responsibilities
of the Security Council accordingto Art. 24of the Charter to take the measures necessary
to restore peacefil condition in the area, a goal that cannot be reached it the Wall
continuedto exist andto be evenextended.
11.14. Al1agencies of the United Nations system are under the duty to support, within
their specific fieldof competences,the fulfilmentof the functionsof these political organs.
"3 See above SectionVIII. 4. Persona1criminal liability
11.15. As to persona1criminal responsibility of persons who decided on the construction
of the wall, two questionsanse:
- Does the construction of the wall constitute a war crime which falls within the
jurisdiction of the InternationalCriminal Court?
- Does it constitute a grave breach of the Geneva Conventions, which wouldentai1a
duty of al1Statesto prosecutethe relevant decision-maker?
The answer to the first question is no. Neither Israel nor Palestineare parties to the statute
of the ICC.
11.16. In relation to the second question, two issues have to be distinguished: the
destruction of property in connection with the construction and the consolidation of the
unlawful Israeli settlements as a violationof article49 of the Fourth Convention.
11.17. "Extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly" constitutes a grave breach of the
Fourth Convention (article 147). It has been shown above that there was, in connection
with the construction of the wall, destruction of property"4 that was not justified by
military necessity. It was conducted in violation of article 53 of the Fourth Convention,
'14See above Section IX.thus unlawfully. This destruction must also be qualifiedas "wanton". Consequently,these
destructions constitute agrave breach ofthe Fourth Convention.
11.18. The transfer of the civilian population of the occupying power and, thus, the
creation and consolidation of the Israeli settlements in the occupied Palestinian temtories
also constitutes a grave breach, although that transferis not mentioned in the list of grave
breaches containedin article 147of the Fourth Convention. Ithas been declared, however,
to constitute a grave breachby article 85para. 4 (a) of Protocol 1additional to the Geneva
Conventions. Israel, however, is not a Party to the Protocol. In this respect, it must be
noted, however,that article 8 (2)(b)(viii) of the Statuteof the ICC lists as a war crime
"The transfer, directly or indirectly, by the Occupying Power of parts of its own
civilianpopulationintothe tenitory it occupies ..."
The list of war crimes found in article 8 has to be considered to be an expression of
customary international law. The texts are taken fi-ommany different treaties, such as
Hague Convention No. 3, the Protocols additional to the Geneva Conventions, the Hague
Convention on the Protection of Cultural ~ro~ert~.~~I~ t seems impossible that al1these
treaties apply in a given conflict as a matter of treaty law. The list, thus, can only be
explained if the rules referred to in it constitute customary internationallaw. Thus, there is
a customarylaw addition to the list of grave breaches contained in the Fourth Convention,
namely the transfer of the occupying power7spopulation into the occupied temtory. The
settlement policy and the construction of the Wall in order to consolidate thispolicy116are
part andparce1of this grave breach.
For details seeA4 Bothe, War Crimes, in:A. CassesdP. Gaeta/JR. WD. Jones (eds.),
The Rome Statute of the International Criminal Court: a Commentary, vol. 1, pp. 379 et
seq., 395etseq.
l lSee aboveSectionIX.Thus, both the destruction of property effectuated for thepurpose of building the wall and
the construction itself constitute grave breaches of the Geneva Conventions. As to the
duties which theConvention imposes on the Parties in relation to grave breaches, Art. 146
is clear:Al1Parties are under an obligationto prosecute an alleged offender or to extradite
him or her to a Party willing to prosecute. This has been, inter aliac,onfirmed by the
Conference of the High Contracting Parties to the Fourth Geneva Convention in its
Declaration adopted on5 December 2001 :
"They reaffirm the obligations of the High Contracting Parties under articles 146,
147 and 148 of the Fourth Convention with regard to penal sanctions, grave
breaches and responsibilitiesof the HighContractingParties."C. Conclusions andsubmissions
It is respectfully submittedto the Court that the question put to it by the General Assembly
shouldbe addressed inthe followingway:
1. The construction of the wall constitutes an internationallywrongful act as it violates a
numberof fundarnentalrules and principles of international law, in particular:
a. the right of the Palestinian People to self-determination,including its right
to statehood;
b. the inadmissibilityof the acquisitionoftemtory through the use of force;
c. the United Nations Charter and relevant resolutions of the General
Assembly andthe SecurityCouncil;
d. international humanitarian law, in particular the Fourth Geneva
Convention;
e. the international law of human rights, in particular:
relevant provisions of the International Covenant on Civil and
PoliticalRights;
relevant provisions of the International Covenant on Economic,
Social and Cultural Rights; and
relevantprovisionsof the Conventionof the Rights of the Child.
2. These wrongful acts engage the international responsibility of the State of Israel.
Therefore,Israel is obliged to:
a. ceaseimmediatelythe constructionof the wall;
b. irnmediately rescind al1 legal and administrative measures taken for the
purpose of constructingthe wall;
c. as a form of restitution
demolishthose parts of the wall whichare alreadybuilt;
restitute to the lawful Palestinianowners al1land andother property
taken in connection withthe buildingof the wall.3. Al1 measures taken by Israel in connection with building the wall are nul1 and void.
Therefore. al1 States are under a duty not to recognize any situation created by or as a
consequence of its construction.
4. Al1 States are under a duty to cooperate in order to induce Israel to comply with the
obligations statedsub 2.
5. The competent organs of the United Nations and the United Nations system, in
particular the General Assembly and the Security Council, have the duty to take the
measures necessary to induce Israel to comply with the obligations stated sub 2 in order to
implement the relevant resolutions adopted by the General Assembly and the Security
Council since 1947.
6. The construction of the wall constitutes a grave breach of the Fourth Geneva
Convention. Therefore, al1 States are under a duty to prosecute persons who bear the
responsibility for this construction and measures relating thereto unless they extradite an
alleged offender to a State willing to prosecute him orher.
Amre Moussa
The secretad General
of the League of Arab States
Written Statement of the League of Arab States