1Cour internationalede Justice
Enregistreau Gr:ffele
1InternationalCourt of Justice.004/ bI
Filedinthe Regi:tryon
LEGALMEMORANDUM
Subnùtted by the
Arab Republic of Egypt
The International Court of Justice
Concerning
The General Assembly's Request for an Advisory Opinion
regarding the Legal Consequences Arising from the Construction of the
WallBeing Built byael in the Occupied Palestinian Territories
Considering thees and Principles of International Law,
including the Fourth Geneva Convention of 1949,
and relevant Security Council and General Assembly Resolutions LEGAL MEMORANDUM
Submittedbythe
Arab Republic of Egypt
to
The International Court ofJustice
Concerning
The General Assembly'sRequest for an Advisory Opinion
regarding the Legal Consequences Arising from the Construction of the
Wall Being Built by Israel in the Occupied Palestinian Territories
Considering the Rules and Principles of International Law,
including theourth Geneva Convention of 1949,
and relevant Security Council and General Assembly Resolutions TableofContents
Page
1Introduction
First The Jurisdictionof the InternationalCourt of Justice to
renderthe requestedisoryOpinions
I
Second HïstoricalBackgroundandFactsoftheMatter
Third TheLegal Statusofthe PalestinianTemtory (the West
Bank, includingEast Jerusalem,andStrip)
Fourth Violations of International Humanitarian Law,
particularlytheFourthGenevaConventio1949
Fifth Violations of Principles of International Law on
HumanRights
Sixth Theirrelevanceofthe argumentof securityreasons
Seventh Submissions INTRODUCTION
The Governmentof Egypt submits this Memorandum,as an expression of
genuineand longstanding interestin international peaceand security,in the heart of
whichliesthe peaceand securityof the MiddleEast Region. Thisinterestisbasedon
a sound understandingof the nature of moderninternational relations, where people
of a state can no longer live in isolation fiom events occurring and actions taken
beyondits borders,not to mentionjust outsidetheseborders.
This approach has been consistently adopted by Egypt when addressing
foreign policy issuesin general,and the developmentof the Arab-Israeli contlictin
particular. In the sameline,experiencedictatesthat peace in the MiddleEast region
cannot be established onthe basisof biiateralrelations,but shouldexpressan overall
realitythat reflectsthe core desireto achievemutualunderstanding,coexistenceand
thejointwelfareof al1peoplesin the region. As Egypt is a neighbouringcountryto
both Palestineand Israel, it isus among the most affectedcountriesby the current
confiict. Moreover,the complicatednature of this confiict has resulted over an
extended period of time in wasting the lives of many innocent victims and huge
resources, a matter which imposes an obligation not only on the countries of the
regionbut alsoon the wholeworldto consolidatetheir effortsin order to reach afair
andbalancedsettlementto thisconflict.
Egypt has never hesitated to carry this responsibility,and has been taking
steady and confidentsteps, backedby an extended heritageof a successfùlbalanced
policy seekingto achieveits own national interests in conciliation withthose of the
international cornrnunity,through full respect and compliancewith the rules of
InternationalLaw and consistentuse of peacefulmechanismsin the managementand
interrelationsamongcountries. Egypt has successfùllyappliedthis poiicythroughout
the longprocessofrecoveringSinai,which was occupiedduringthe 1967war. Egypt
has also beenamongthe first countriesto accept the UN SecurityCouncilresolution
242. Egypt's late President Anwar El-Sadat did not hesitate,when it seemed that
efforts for peace had reached a deadlock, to launch his historic initiativein 1977 in
order to give suchefforts a new momentum, whichsucceededin 1979 by concluding
thefirst peace treaty between Israel an ArabState.
Sincethen,Egypt has exerted seriouseffortsto expandthe scopeof the peace
process to include all concerned parties. Also when certain problemswere faced
concerning the implementationof the Egyptian Israeli Peace Treaty, especially
concerning the locationsof someborder pillars,the most famousof whichis the Taba
pillar,Egyptwasthe firstto acceptarbitrationas a mechanismto resolvesuchcrisis,a
position which reafhned Egypt's belief in and respect of the rules of International
Law and its enforcement mechanisms,in the context of peacefùl resolution of
internationaldisputes, includingosewhichare closestto supremenationalinterests.
Whenthe comprehensivepeace process started in Madrid, Egypt was one of
the keypartiesdirectly involvedinsuchprocess, notwithstandingthat the peace treaty
between Egypt and Israel had resolved al1 the issues which directly concerned Egyptianinterestsinthe conflictinthe strictsense.Egypt hasthus continuedto act as
the "regional sponsor" in various forrns, and in particular on the Palestinian Israeli
course.
However, the recent monthshavewitnesseda major shiftin the Israelipolicy
in the Palestinianterritories occupiedduring the war of 1967, namely building a
separationwall by Israel in the occupiedWest Bank. Egypt is deeply concernedby
the developmentsof buildingthis wall, its indicationsand consequences, not only
because the completionof this wall constitutesa flagrant violationof International
Law and the relevant resolutions issued by the UN to put an end to the Israeli
occupationof the Palestinianterritorieswhichresultedfiom the 1967war, but most
seriouslybecause the concept of the wall itself reinstates condernnedpractices of
racial discriminatio(apartheid),whichhavebeen firmiyrejected severaldecadesago
by anunprecedented international consensus. Moreover, thw isallrepresentsa serious
aggressionon the humanrights of the Palestinian people,as willbe clarifiedin detail
hereinafter.
Peace,in essence,doesnot emanatemerelyfiomformalprocedures,treatiesor
protocolsbut fiom an underlyingbeliefin the possibilityof mutualunderstandingand
coexistence arnong peoples in order to achievetheir joint interests, a belief which
would be completelydestroyed by the building of the separation wall, which will
enhance isolation rather than communication,and promote sustainability of the
accumulatedhatred and animositybetweenthe two communitiesthat the wall aimsat
isolatingone fiom the other. Buildingthiswallandits consequencesrepresentmajor
violationsof the hurnanrights of the Palestinianpeople, which will make this wall,
unfortunately,the most dangerousmethod ofsustainingtension, instability,animosity
and connict in a region that desperately needs stability and joint construction of
peacefùlcoexistence.
Claiming that this wall is a temporary measure to meet Israeli security
requirements,does not reduce such dangers in any manner whatsoever, because,
notwithstandingthat such securityrequirementscan only be fùlfilledthrough ending
the Israelioccupationof the PalestinianterritoriesoccupiedinceJune 1967, thiswall
which Israel claims is temporary, has already resulted in flagrant violations of
consistently applied rules of International Law and explicit resolutions of many
international organization, n thetop of whichcomesthe UN, a matter whichcannot
beacceptedbythe internationalcornmunity.
Egyptfeels confident thatthe viewsexpressedin this Memorandum reflectthe
consensus of the international community towards this serious situation and its
consequences.
As evidenceof this consensus,the Quartet Cornmitteeformed of the United
States,the EuropeanUnion, the RussianFederation, and the United Nations, which
representsthe most important international gathering seekinto push the MiddleEast
peaceprocess forwardaimingat establishg a PalestinianState in the West Bankand
Gaza Strip besidethe State of Israel, pointed out its position with respect to the
isolationwallasfollows:
"TheQuartetmembersreafJirmthat, inaccorhnce with the RoudMap, settlementactivitymust stop, andnote with greatconcem the actualand
proposed routeof the Israel'sWestBankfence,particularlyas it resultsin
the confiscation ofPalestineland, cuts 08 the movement of peopleand
go& and undermines Palestinians trustin the road mapprocess as it
appearstoprejudgefinal bordersof aJuturePalestinianState ':
In addition, the stance of the UN General Assembly,which represents the
most democraticand widest representationof the internationalcornmunity,was clear
concerningthe wall as it contirmedin its resolutionNo. ES-10113dated October 1,
2003 that: It demandsIsrael to stop and reverse the constructionof the wall inthe
OccupiedPalestinian Temtories includingin and around East Jerusalem,which is in
departure ofthe Armistice Line of1949and is in contradictionto relevant provisions
oftheInternationalLaw.
The GeneralAssemblyadded inits request for an advisoryopinionfrom the
InternationalCourt of Justice"ResolutionNo. AIES-IOIL.16datedDecember8,2003
that:
"Grave& concemed at the commencement and continuation of
constructionby Israel, the occupyingPower, of a wall in the Occupied
PalestinianTerritory, includinginand aroundEastJerusalem, whichis in
departure from the Armistice Line of1949 (GreenLine) and which has
involved the confiscation and destruction of Palestinian land and
resources,the disruptionof the lives of thousad of protected civilians
and the defacto annemtion of largeareasof territory ".
TheAssemblyalsodecidedthat:
"Bearing in mind that the passage of time Jurther compoud the
dzflculties on the ground,as Israel, the OccupyingPower, continuesto
refise to complywith internationallaw vis-à-vis its constructionof the
above-mentioned wall, with al1 ifs detrimental implications and
consequences, and underlining the unanimous opposition by the
internationalcommunitytotheconstructionofthatwall... ".
The European Union expressed its position in the Tisaloniki Summit
Statement (19-20June2003)asfollows:
'Ttalso callson Israelto reversethe settlementpolicy and activityand
end land confiscationsand the construction of theso-called security
fence, al1of which threatento render the two-Statesolutionphysically
impossibletoimplement ':
The European Union reaflkmed this position in the Brussels Summit (12
December 2003),referringto Israel'spolicyas follows:
"ïkis policy, togetherwith thedepartureof theso-called securityfence in the occupied WestBank and East Jerusalem from the Green Line,
could prejudge jùture negotiations and make the two-state solution
physicallyimpossibleto implement ".
This clear internationalunanimityrefbsingthe wall and its legal and political
consequences underscoresthe urgent need for constructiveefforts to address such
flagrant breachof law andseriousthreat to peacein an area that has been strivingto
achievepeace for decades. This international stance haslead the General Assembly
to take a commendedstep on 8 December2003 byrequestingthe InternationalCourt
of Justicetogive an AdvisoryOpinionconcerningthe legal consequencesof building
the wall, considering the des and principles ofInternational Law, includingthe
Fourth Geneva Conventionof 1949 and the relevant Security Council and General
Assemblyresolutions.
WhileEgypt recognizes that advisory opinionsare not judicial ruiings, Egypt
is neverthelesskeen to promote and activatethis importantrole of the International
Court of Justice, based ona constant objectiveofgyptianpolicyto strengthenand
consolidate peacefùl resolution and settlement of disputes, especially judicial
settlement, whenever possible. Thus, we totally agree with Judge Bedjaoui's
statementsonthe 50& anniversaryof theInternationalCourt of Justicewhenhe said:
"La soumission à la Courd'unequestionjuridiquepar uneorganisation
internationalepeut, toutefois,prévenirla cristallisationd'unfférend
éventuelcommeellepeut viser à assisterl'organisationconcernéedans
la solution d'un dzfférenddéjànéet concernantson fonctionnement
interne, voire sesrelationsavecdestiers.
En dépitdes apparences, les avis de la Cour sont susceptibles de
déployerdes effets "Pacz$cateurs", directement, dans un contexte
conJlzctue1o,u indirectement,en dehors d'un tel contexte,ne serait-ce
quepar leurapportau bonfontionnementdesorganisationsuniverselles
ainsiqu'audéveloppemend tu droit.a procédureconsultativeqvparait
ainsi au moins comme un instrumentde "diplomatiepréventive", un
moyenprivilégié pour la Courde désamorcer les tensionset deprévenir
lesconflitsendisantde droit".'
SirRobertJenningsstressedonthe sarnemeaningasfollows:
"Properlyunderstood, the adjudicativeprocess can serve, not on& to
resolveclassical legal disputes,but itn alsoserveas an important tool
of preventivediplomacy in more complex situations. Judicial decision-
makingandpolitical decision-makingare verydzfferentfiom each other,
and sometimes,it maybenecessaryto choosebetweenthemin respectof a
'. Mohamed BEDJAOUI" , Discours,nConniePeckandRoyS. Lee (cds.),Increasingthe
EffectiveneoftheInternatiolourtofJustice,Netherlan: luweLawInternationa,997,pp.
35-36. particularproblem; but they are also complementary and can be used
together togreateffect ".
This advisoryopinion,in Egypt'sassessment,does not entailmixinglaw with
politics in any way, but it simplyreflects a realistic appreciation of the facts of
international relationswhich recognizesthat the Law is enforced within a political
fiamework, and that the Lawmust affect this politicalframeworkto the maximum
possible extent and be afEectedby it to the least possibleextent. In this context, for
the case in question,we are confidentthat the opinionof the InternationalCourt of
Justice concerningthe "SeparationWali"wiliachievethe "complementarity"referred
to by SirJennings,and that it wili havepositivepoliticalconsequencesthat reinforce
the role of peace advocatesand civilsocietyas wellas al1democraticmechanisms,on
bothnationalandinternational fionts.
Egypt is equallyconfident thatthe Court,usingits focalrole and distinguished
positionwithinthe internationaljudicialsystem,wiilestablish,throughits responseto
the General Assembly'srequest, concrete and sound legal basis for dealingwith a
very serious question having impact on the future of the Middle East peoples and
international peaceand security.
'.SirRobertJENNINGS" ,Presentation"b,id,p. 79 FIRST: JURISDICTION OF THE INTERNATIONAL
COURT OF JUSTICE TO RENDERTHE REQUESTED
ADVISORYOPINION
On December 8, 2003, the General Assemblyrequested the International
Court of Justice, based on Article 96 of theCharter and Article (65) of the
Statutesofthe Court, to issueurgentlyanadvisory opinionon the foiiowingquestion:
"Whatare the legalconsequences arisingfromthe constructionof the
wall being built by Israel, the occupying Power, in the occupied
Palestinian territory including in and around East Jerusalem, as
describedin the reportof the Secretary General,consideringtheules
and principles of InternationalLaw, including the Fourth Geneva
Convention of 1949, and relevant SecurityCouncil and General
Assembly resol~tions"~.
Article (96) of the Charter gives the Security Counciland the General
Assembly anunconditionai rightto request the InternationalCourt of Justiceto issue
an advisoryopinion onany lepal questionarisingwithinthe scope of their activities
andit givesthe samerightto the other organsof the UN and specializedagencies. Yet
exercisingthis rightby suchother organsor agenciesis subjectto two conditions:(a)
the GeneralAssemblymust authorize such organs and agenciesto request the legai
opinion,and (b) the legalquestionssubmittedto the Court must be withinthe sphere
ofcompetenceof suchorgansandagencies.
It is clear£romthe text of Article(65) of the Court Statutes that it has the
rightto render the requested advisoryopinion, basedon the first paragraph, which
statesthat:
"The Courtmay give its opiniononany legalquestionut therequestof
whateverbodj authorizedby or in accordancewith the UN Charterto
makesucha request".
As Article (96) of the UN Charter has providedthat the question subject
matter of an opinionfiom the Court must be"a question of a legal nature",as a
condition forthe competenceof the Court to issueits advisory opinion, whether
requestfor an opinioncamefrom an entityhavingthe absoluteright (likethe General
Assemblyand Security Council),or a preconditioned rightas previously mentioned.
This requires definingthe intendedaningof "questionsof a legal nature"that
givethe Courtjurisdictionto issueadvisoryopinions.
Onthe other hand,it maybeinferredfiom the text of Article (65)of the Court
Statutethat it has a discretionaryauthorityto refiain fkomissuingsuch opinion, even
whenthe conditionsfor requestingan opinionare satisfied. This requiresa discussion of the extent of the discretionaryauthorityof the Court in decidingto render or not
render an opinion,in order to concludefinallywhether thequestionwhichthe General
Assembly requested a legal opinion on fi-omthe International Court of Justice
concerningthe Wallcurrentlybeingconstructedby Israel,constitutesa question ofa
legalnature onwhich the Courtis competentto givean advisoryopinion.
Once we reach a conclusionon this point, we will respond to the following
questionon the extent of the Court'sobligationto givean advisory opinion,when so
requested withinthe scope ofitsjurisdiction.
1. The Meaningof "Questionsof a Legal Nature"
Article (96) of the UN Charter, which gives the General Assembly andthe
SecurityCouncilan unconditionalright to request the advisoryopinionof the Court
on any legal question invitedjurists to define the intended meaning of the legai
questionswhichfallwithinthejurisdictionoftheCourt.
Inthisconnection,Mr.Confortistated:
"(...) the object of theadvisoryjünction is indicated ina such
broadtermsthatit wouldbe arbitrarynot to acceptany question
pertainingto theapplicationorinterpretation oflegalnorm~".~
The meaninghas also becomeapparentthrough the consistentapplicationby
the Court, particularlywhen certain memberStates on one hand, whether beforethe
GeneralAssemblyor the InternationalCourt ofJustice,andcertain jurists on the other
hand, attemptedto denythe legal nature of Questions submittedto the Court for an
advisoryopinion.
CertainmemberStates attemptedveryearlyinthelifeof the UnitedNationsto
exclude fiom the scope of legal questions eligiblefor advisory opinionsfiom the
Court, ad matters related to the interpretationof the provisionsof the UN Charter.
The InternationalCourt of Justiceitself refùsedthis directionin its advisoryopinion
issuedon May 18, 1948, concerningthe termsof adrnittingmembersto the UN. The
Courtrespondedas follows:
"Aucunedisposition n'interdit à la Cour "organejudiciaire
principal de l'ONU, d'exercer à l'égardde la Charte, traité
multilatéralu, nefonctiond'interprétation.a Cours'estimedonc
compétente surla basede l'article 96 de la Charteet de l'article
95 desonstatuty'.
Moreover,reviewingthe Court's consistent precedents relatedto its advisory
function,shows that it hasrefused the objectionsmade to deny its capacityto issue
4.Confort.BENEDEïTO: The LawandPracticeoftheUnited Nations,KluweLaw Internationai,the
Hague,London, Boston,.262.
'.Eisemann,Coussirat-Coustere,Hur.:Petitmanuelde la Jurisprudencede la CourInternationalede
Justice,3eed.,Pedone,Paris, 1980,p.187 advisoryopinionson the basisthat the relevantquestionsare of a political nature,as
opposed to legal nature, and that thus, the Court had no jurisdiction to issue an
opinionthereon.
The advisoryopinionsof the Courtthat included suchobjectionsshowclearly
that the Court has disregardedsuch objections,and incertain cases went as far as
respondingto suchobjectionsalthoughthey were not raisedin the context ofjudicial
Court proceedings. This is clearfiom the advisory opinionof the Court datedMarch
25, 1951, regardingthe interpretation of the treatybetweenEgypt and WorldHealth
Organization(WHO),whichstates:
'Ynthedebates(...)on theproposa1torequestthepresent opinion
fiom the Court, opponents of the proposa1 insisted that it was
nothing but a political maneuver designed to postpone any
&cision conceming removal of the Regional OfJicefiom Egypt,
and the question therefore mises whether the Court ought to
decline to reply to thepresent request byreason of its allegedly
politicalcharacter. In none of the written and oral statements
submittedto the Court,on the otherhand,has thiscontentionbeen
advanced and such a contention would in any case have run
counter to the settled jurisprudence of the Court. That
jurisprudenceestablishesthat if, as in thepresentcase, a question
submittedin a request is one thatotherwisefalls withinthe normal
exerciseof itsjudicialprocess, the Courthm not to deal with the
motives whichmayhaveinspiredtherequest. Indeed,in situations
which political considerations are prominent, it may be
particularly necessaryfor an international organizationto obtain
an advisov opinion from the Court as to legal principles
applicablewithrespectto thematterunderdebate (.)"6.
In adopting this line, the Court followed its consistent rulings since the
beginningof its advisoryactivities. The objectionto the jurisdiction of the Court to
giveadvisoryopinions based onthe politicalcharacterof the questionshas been often
raised before the Court. Yet such objections have not impeded the issuance of
advisory opinionsby the Court on such questions. We refer, in particular, to the
advisory opinionto accept membershipin the UN hereinbefore mentioned7,as well
as the Court'sadvisory opinion issued on March 3, 1950concerningthe jurisdiction
of the GeneralAssemblyto accept a State as a memberof the UN, where the Court
confirmedits previous opinionon the matter issuedin 1948. Inboth cases,the court
affirmedthat the advisory opinionrelatedto a questionof a legal nature,evenif such
question had also a political character, because the question raised relates to the
interpretationand applicationof thetext of Article(4) of the Charter concerningthe
UNmembership terms.
'.See analysisof thisopinioninEisemannandothers, . 18-andI.C.J.Reports,194-1948,
pp.61-62 The Court adopted the same principlein its advisoryopinion datedJuly 20,
1962,at the General Assembly'srequest regardingcertainexpensesborneby the UN
in connectionwith peace keepingforces in the Middle East and Congo. Prior to
dealing with the substance of the matter, the Court cladied certain prelirninary
considerations concerningits jurisdiction. The Court decided in this regard that
althoughit was not competentto issue advisoryopinions concerning questionsof a
politicalnature, yet it had to followits established rulings, especially wegard to
the questions relatedto the interpretationand applicationof the UN Charter. The
Court thus concludedthat it had to give an advisoryopinionon such questionas a
legalquestion, sincethe required opinion wasconcerning theinterpretationof Article
2117 of thecharter8.
Finaily, even if the question on which an advisory opinion is required
represents a dispute between two states or between a state and the UN itself, this
should notpreventthe Courtfiom issuinganadvisoryopinionthereon.
Thejurisprudenceis clearin that sucha disputedoesnot preventthe Security
Council or the UN fiom requestingthe Court to give an advisory opinion in this
regard, even if the otherpartyto the disputeopposed, solong as the questionwhich
requiresanadvisoryopinionisa legalquestion9.
In fact, this opinionis not onlybased on Article(96) of the Charter, but also
on the text of Articles (14)and (37) of the Charter. Thefirst authorizesthe General
Assembly"to recommend measures for the peacefbl adjustmentof any situations,
regardless of its origin, which it deems to impair the general welfareor fi-iendly
relations among nations", whilethe second authorizes the Security Council "to
recommend suchtermsof settlement asit mayconsiderappropriate..".
It is clear that the above two texts did not excludelegal solutionsfiom the
scopeof measuresor termsthat anyof the two U.N. organsmayrecommendto settle
thedisputeinquestion.
The consistent practiceof the International Court of Justice confirms this
jurisprudence. In the advisory opinion issued by the Court on March 30, 1950
concerningthe interpretationof the peace treaties between Bulgaria, Hungary, and
Romania, where the three countries refbsedto request the advisory opinion of the
Court in this regard,clairningthat requestingan advisoryopinionthreatensa principle
of the InternationalLaw, namelythat taking anyjudicial proceduresconcerning legal
questionsraised betweenstates is forbiddenwithout obtainingtheir prior consent,the
Courtrespondedto suchoppositionas follows:
"ïhis obligation reveals a confision between the principles
governing contentioup sroceduresand thosewhichare applicable
to advisoryopinions. Theconsentof States,partiesto a dispute, is
the basis of the court's jurisdiction in contentiouscases. The
situation is dzflerent in regard to advisory proceedings. The
LC.J.Reports,1962,p. 155
'. Conforti,op.cit.,p.263 court'sreply is only anadvisory character:as such, it has no
bindingforce. Itfollows that nostate, whether amemberof the
UnitedNations or not, can prevent the giving of an advisory
opinionwhich the United Nations considersto be desirable in
orderto obtainenlightenmena ts to thecourseof action itshould
take. ne Court'sopinionis not givento the State, but to the
organwhichis entitledtorequestit "'O.
The Court rea5rmed this positionin an advisoryopinionissuedon December
15, 1989,concerningthe interpretationof Article(6) of Chapter22 of the Convention
on the Privilegesand Immunitiesof the UN, wherea dispute arosebetweenRomania
and the UN, aiter Romaniapreventedone of its citizensemployedby the UN, named
Mazilu,fiom departingRomania.As a result, the Economicand SocialCouncil,based
on the authorizationgranted by the General Assembly,requested the International
Court of Justicetogivean advisoryopinionin this regard,based on the fact that the
aforementioned employee wasa member of the Sub-Committee on Racial
DiscriminationandProtecting Minorities.
Article(8) of Chapter30 ofthe saidConventionstatesthat in caseof a dispute
between the UN and one of its member States regarding the interpretation and
implementation ofthis treaty, the UN may request an advisory opinionfiom the
InternationalCourt of Justicein thisregard, anduchopinionshallbe binding onboth
parties. Thus,Romaniamadea reservationon thistext that suchan obligationcannot
be acceptedinadvance.
The problem whicharose in this contextwas whetherthe InternationalCourt
of Justice was entitledto issuethe advisoryopiniondespitethis reservationbased on
the general provision oArticle (96)of the Charter,maintairingthat such an opinion
was advisory and not legally binding, inaccordance with its jurisdiction to issue
advisory opinions uponthe request of anagency permittedto do so bythe UN Charter
or bythe GeneralAssembly.TheCourtrepliedpositively.
In thelightof the above,we concludethat, (i) the Court has adopted a broad
definitionof "questions of a legal nature" which constitute the parameters of its
jurisdictionto issue advisoryopinions, and(ii)the Court foundno reason to preclude
exercise of its fùnction to issue legal opinionsithin its jurisdiction when a legal
question wasmixedwith other politicalfactors or when identi@ngthe nature of such
question wasindispute.
The Court in fact adopted a commendedapproach, as any approach to the
contrary would haveparalyzedthe Court's abilityto exerciseits advisory fùnction.
The reason is that it is veryrare that any questionsubmittedto the UN would be void
of anypolitical impact, especiallhat a request for an advisoryopinionisnevermade
unless a dispute on the matter exists. Such dispute in itself is a political situation,
which should not prevent a request for any advisory opinion nor impede the
jurisdictionof theCourtto issuesuchan opinion. Weiùrtherconcludethat the oppositionbya Statepartyto a disputepresented
to the UN, againstthe other party's right to request an advisoryopinion fiom the
Court on a legalquestiondoesnot precludetherightof suchotherpartyto requestthe
advisory opinion, nor does it prevent the Court'sjurisdictionto issue the required
opinion.
2. The Discretionary Authority of the International Court of
Justiceto IssueorRefrainfromrenderingAdvisoryOpinions
The text of Article(65) of the InternationalCourt of JusticeStatutes may be
interpretedto mean that the satisfactionof the conditionsfor an advisoryopinionto
qualfi as such does not necessarily obligethe Court to issue such an advisory
opinion. Thismay be3)nferredfiom the wordingof the text: "theCourtrnaygive an
advisoryopinion ...
Tracingthe facts of the Court precedents referredto above,we concludethat
those who objectedto the Court'sjurisdictionto issue advisory opinions,particularly
those who claimedthat the condition relatedto the legal nature of the questionwas
not satisfiedandthatsuchquestionhad a politicalcharacter,havealsoraisedthe issue
of the discretionary authority of the Court to refiain fiom issuing the advisory
opinion,even ifd conditionsweremet.
The answer to this question lies in the consistent practice adopted by the
Court. Although the Court has always stressed upon its discretionary authority
pursuantto the text of Article (65) of its Statute to issue or to refiain fiom issuing
advisory opinions, yetthe Court restricted such discretionto what it cded "Urgent
reasond raisonsdecisives".
In other words, the Court maynot refiainfiom issuingthe requested advisory
opinion when the required conditionsare satisfied, unless there are urgent reasons
preventing such issuance. A carefùl review of the Court's rulings shows that the
Court has never refiained fiom issuing an advisory opinionwhenever the required
conditionsweremet.
The only precedent where the Court refiained fiom issuing an advisory
opinion waswhen the WHO requested an opinionfiom the Court, and the Court
foundthat oneof the conditionsrequiredto issuethe advisory opinionfor specialized
agencies wasmissing, which is that the opinion in question must fall withinthe
competenceof suchagency. ''
In fact, the Court's consistent practiceto respond positivelyto requests for
issuing advisoryopinions concerninglegal questions is in harmonywith the spirit of
the UN Charter and with its requirementsof hl1 cooperation betweenthe organs of
the UN. Thishasbeen implicitlyreferredto in manyof the Court'sadvisory opinions.
". WHO requestedtheInternationalCourtofJustice,basedontheauthorihmtitheUNan
advisory opinionregardingthelegitimacyofpotentialuseofnuclearweaparmedinternational
confiicts. The Court refusedto givetherequired opinionon thegroundsthatthisquestiondoesnotfa11
withinthe legalquestionsoverwhichWHOhasjurisdiction,whilethe Courtrespondedto theGeneral
Assembly'srequestfoanadvisos. opiniononthe sarnequestion,arnatterhasca clear
indication. Examplesof such opinionsincludethe advisoryopinionissued by the Court
concerningthe reservationon the Conventionon the Prevention andPunishmentof
the Crime of Genocide12,and the opinion issued by the Court regarding the
consequencesofthejudgmentsbytheAdministrativeCourtofthe UN. l3
On the other hand, the apparent meaningof the text of Article (65) of the
Statutes of the InternationalCourt of Justice, regardingthe Court's discretionary
authority to issue advisory opinions is a single theoretical argumentsignificantly
outbalancedby a group of articlesof the Charterthat obligethe organsof the United
Nationsto cooperatewitheachother. In addition,the Court'sconsistentprecedentsin
this regard, represent,in our opinion,a clear definitionof the discretionary authority
ofthe Courtto issuelegalopinionsandits limitations.
It shouldbe noted that amongthe most sensitivematters relatedto requesting
an advisory opinionfiom the Court is when there existsa potentialconfiictbetween
the judicialjurisdictionof the Court and its advisoryjurisdiction.n such cases,the
Court should,as Conforti rightlypointedout,14decideon suchmattersclearlybecause
the existenceof a dispute amongstates or between astate and the UN should notby
any meansprecludethe Court'sabilityto exerciseits advisoryjurisdiction,as there is
nojustificationfor the Courtto sacrifice such advisoryjurisdictionfor the sake of its
judicial jurisdiction.
Any argumentto the contrarywould enableany State party to a disputeto
solely blockthe Court'sabilityto exerciseits advisoryjurisdiction..
We now have to answer the essential question on the matter under
consideration:
Does the questionreferredby the UN GeneralAssembly
to the InternationalCourt of Justice, which represents
the subject of the advisory opinion requested by the
Assembly, fulfill the required conditions? In other
words: 1sthe question of a "legalnature"that qualifies
forissueof an advisoryopinion?
Based on the above, we may conclude that the substance of the question
introduced by the General Assemblyto the Court focuses basically on the legal
consequencesof buildingthe separation wallin the lightof the des and principlesof
InternationalLaw, includingthe Fourth GenevaConventionof 1949, and the relevant
resolutionsissuedbythe GeneralAssemblyand SecurityCouncil.
Al1those consequences representin essenceapplicationsand interpretationsof
the rules of InternationalLaw and relevantinternationalconventionswith the UN
Charter and the Fourth GenevaConvention,and includethe InternationalCovenants
12.I.C.JReports1996,p.1971
13.LC..J.Reports,1956,p.68
14.ConforfiBENEDEïTO,op.cit,, p. 266on Civil andPolitical Rights aswell as on for Economic, Socialand Cultural Rights
as well as the relevant SecurityCounciland GeneralAssemblyresolution(as willbe
detailed in the substantive sectionofthis Memorandum). Moreover, an opinion on
such matters falls clearly arnong the legal questions eligiblefor advisory opinions,
accordingto Article (96) oftheUNCharter.
In light of the above mentionedconsiderationsand the consistentprecedents
of the Court, we submit that the InternationalCourt of Justice would be in full
consistency with its previous practice when respondingto the request made by the
GeneralAssemblyandissueanadvisory opinionthereon.SECOND: HISTORICAL BACKGROUND ANDFACTS
Sincevarious memorandasubmittedto the Court by Arab countries and the
League of Arab Nations, have elaborately depictedtheibackground of this
issue, therefore, the Arab Republicof Egypt would like to refer thereto in order to
avoidrepetition.
As for the demographic, humanit,nd socio-economicfacts and impacts,
itis sufficeto refer to Report CA/ES- 101248of the SecretaryGeneraiof the United
Nations datedNovember2003. THIRD:THE LEGALSTATUSOF THE PALESTINIAN
TERRITORY (THE WEST BANK, INCLUDING EAST
SERUSALEM,ANDGAZASTRIP)
It is impossibleto understand the legal nature of the Palestinian territory
without acknowledgingthe specialstatus of the PalestinianTemtory under mandate
during the period between 1922 and 1948, a matter on which we refer to the
memoranda whichelaborated on the historical background.It is sufncient here to
refer to the United Nations' Resolution81 (II) "Future Governmentof Palestine"
issued on29 November 1947, by virtue of whichthe GeneralAssemblyresolvedto
establishtwo States in the Palestinianritory:a JewishState and anArab State, to
internationalizeJerusaleandto setup aneconomic unionbetweenboth States.
We drawthe Couri'sattentionthat the declarationto establishan Israei State
on 15 May 1948 was followedby the State'sacceptance ofthe GeneralAssembly's
aforementionedresolutionon the partitionof Palestineand its resolution4 of 1948
on the refùgees'right of returnto their homeland.Suchacceptancetook place dwing
the extensive discussionof the Ad-HocPolitical Committeeof the GeneralAssembly
prior to voting on Israel's admissionas a UnitedNations member,where Mr. Aba
Eban, thenthe specialrepresentativeof the Stateof IsraelconfirmedIsrael'sabidance
by and respect of the resolution on the partition of the Palestinian Territory, the
internationalisationof Jerusalemand thealestinianrefùgees'right of return to their
homeland. Thiswas reflected in the General Assembly'sresolution273 (III) issued
on 11 May 1949 admitting Israelas a UnitedNationsmember.15
Inlight of the above, it may be concludedthat Israel'sadmissionas a United
Nations memberwas based on specificterms, the most important of which are the
following:
i. That its boundarieswillbe the sameboundariesas definedby resolution181(II)
of29 November 1947.
ii. Thatit abidesbythe termsof resolutions181 (II) o29 November 1947 and 194
(IIIofDecember 1948.
''The aforementiondesolutionstates the following:
NotingfkihermorethedeclaratbyntheStateofIsrathatit "unreservedlyacceptstheobligationsof
the UnitedNations Charterandundertakestohonourthemjî-omthe daywhenit becomesaMemberof
the UnitedNatio',
"Recallingitsresolutionsof 29November1947and II December1948andtakingnote of the
declarationsandexplanationsmaclebythe representativeofthe GovernmentofIsrael beforethe ad
hocPoliticalCommitteein respectofthe implementationof thesaidresolutions,
TheGeneralAssembly, actingin dischargeof itsjùnctions underArticle 4 of the Charterandrule 125
of itsrulesofprocedure,
1. DecidesthatIsraelis apeace-lovingStatewhichacceptstheobligationscontainedinthe Charter
andis ableandwillingto carryoutthoseobligations;
2. Decidesto admitlirael to membershipin the Unite'"ations. iii. That it cooperateswith the United Nations in implementingthese resolutions
regarding:
(a) Internationalizationof Jerusalemarea;
It abides by Chapter 2 of resolution 181 (II) of 29 November 1947,
(b) namely :
(1) Freedom of conscience;(2) No discriminationof any kind shall be
made by the inhabitantson the ground of race, religion,languageand sex;
(3) AUpersonswithinthejurisdictionof the state shall beentitledto equal
protectionof the law;and (4) No expropriationof landownedby an Arab
in the JewishState(bya Jew inthe Arab State)shall be allowedexceptfor
publicpurposes.
(c) It abides by the terms of resolution 194(III) of 11 December 1948 by
allowingthe repatriation of the Arab refùgees and paying compensation
for thosewhochoosenot to return.
SinceIsraelhas ignoredthe foregoingterms and committedflagrantviolations
against the rights of the Palestinian people throughout the years following the
declaration of its establishmentand until its aggression against neighbouringArab
countriesin 1967,the most seriousof its violations againstthe terms and vows made
thereby, beingits constant attemptto prevent the establishmentof an Arab State
(Palestinian State) as stated in the partition resolution by virtue of which it was
established. Such violations of the rights of the Palestinian people also included
transcending the boundaries defined by the General Assembly'sresolution 181 of
1947,as the onlyparts not fdng underIsraelicontrol werethe West Bank andGaza
Strip (The West Bank includingEast Jerusalem fell under Jordanian rule and Gaza
Stripfeiiunder Egyptianadministration)untilthe militaryoperations brokeout in the
June 1967 War, duringwhichIsrael occupiedthe WestBankincludingEast Jerusalem
and Gaza Strip. So, the entirePalestinianterritory with thesameboundariesas at the
time oftheBritish mandatefellunderIsraeli control.
Ever since,the statusnatureof the Palestinianterritoriesoccupiedin 1967has
become anissue and Israeli circleshave propagated theories clairningthat the West
Bank and Gaza Strip werenot under the sovereigntyof any other country and that
Israel's occupationof these two territories entailedits sovereigntyover them, or at
least their consideration asno man's land,since both Egypt and Jordan lacked the
legal grounds to claimthe re-control of these two territories, which gives Israel the
right to disposeof them in that context. It accordinglytook the initiativeto nul1and
void declareits annexationof East Jerusalemand to considerJerusalem asa unified
city. However, the international cornmunitysoon challengedthese false allegations
by virtueof SecurityCouncilresolution 242of 22November 196716which decisively
decided on the legal status of the Arab territories occupied in 1967, naturally
includingthe Palestinianterritories (the West Bank includingEast Jerusalem and
Gaza Strip) deerningthem occupiedterritories fiom which Israel must withdraw.
Besides, a number of other resolutions adoptedby the General Assemblyand the
SecurityCouncil, especially regarding the status of East Jerusalem, have confïrmed
that theyare occupiedterritoriesand that Israel'scontrolof said lands are a result
of its occupyingauthority.
It is withoutdoubtthat the discussionsheldat the specialsessionof theUnited
Nations' GeneralAssemblybetween 19 June and 3 July 1967and those held at the
various Security Council meetingsstarting on 5 June and ending on 22 November
1967,which resultedin the unanimousadoptionof resolution242, best interpret the
Security Council's resolutiona ,s they are consideredthe prelirninaryworks which
clearly reveal the Security Council's intentionto adjust the legal status of the
Palestinianterritories thatcame underIsraelioccupationin 1967.
The clear statementsmade by Mr. George Brown,the Secretary ofState for
Foreign Mairs of the United Kingdombefore the General Assemblyat its session
1529 held on 21 June 1967 are the best evidencethat withdrawalfiom Palestinian
territoriesappliesto allthe occupiedPalestiniantemtories, includingEast Jerusalem,
which accordingly afEirmsthe legal characterizationof all Arab territories under the
Israelicontrolas occupied temtories. In thisconnection,he resolved:
16 SecurityCouncilResolutio242 (1967)
The SecUntyCouncil
Expressingitscontinuhg concemwiththe grave situationin the MiddleEast
EmphasizingMer îhatal1MemberStatesintheiracceptanceofthe Charîerofthe United
Nations have undertakena commitmentto act in accordancewith Articlee Cbarter.
1.Affirmsthatthefulnllmentof Charterp~ciples requiresthe establishmentofajust andlasting
peacein theMiddleEast whichshouldincludetheapplicationofboththefollowingp~ciples:
(i) WithdrawalofIsraelarmedforcesfiom temtoriesoccupiedin the recentconflict;
(ii) Terminationofal1clairnsorstatesofbeliigerencyarespecforand
acknowledgementofthe sovereignty,temtorialtegrityandpoliticalindependenceof
everyStateintheareaandtheirrighttoliveinpeacewithinsecureandrecognized
boundarie£reefiom threa oracts offorce;
2. AffirM mser necessisr
(a) For guaranteeingfreedomofnavigationthroughinternationalwaterwaysintare;
@) Forachievingajust settiementofthe refugee problem;
(c) Forguaranteeingthetemtorialinviolabilityandpoliticalindependenceof everyState
inthearea,throughmeasuresincludingtheestablishmentofdemilitarizedzones;
3. Requeststhe Secretary Generaito designatea SpecialRepresentativetoedto theMiddleEast
to establishanmaintaincontactswiththe Statesconcemedin ordertopromoteagreementand
assisteffortstoachievea peacefidand accepted settlementin accordancewiththe provisionsand
p~ciples inthis resolution;
4. Requeststhe Secretary- Generaitoreportto the SecurityCouncilon theprogressofthe effortsof
the SpecialRepresentatiassoonaspossible."
Itis worthmentioningîhatthe Security Council has reconfthis resolutionbyvirtueofresolution
No. 338issuedon 22October 1973. 7 should like, ifI may, to set out certainprinciples which I
believe should guide us in striving collectivelyfor a lasting
settlement. Clearly,suchprinciples must derivefrom the United
NationsCharter,Article 2 of the Charterprovides that:
"Al1Membersshallrefain in theirinternationalrelatiomfrom
the threat of use of force against the territorial integrity or
politicalndependenceof any State.."
Here thewords "territorialintegrify"have a directbearingon
the question of witMawa1, on which much has been said in
previous speeches. I see no twowaysabout this; and I can state
ourposition veryclearly. In my view,itfollowsfrom thewordrin
the Charterthatwarshouldnot leadtoterritorialaggrandisement.
Reports suggest thatone particularpoint may be of special
urgency. ThisconcernsJerusalem.I cal1upon the State of Israel
not to take anysteps in relationtoJerusalemwhichwouldconflict
with thisprinciple.I say verysolemnlyto the Governmentof Israel
that, if they purport to annex the Old City or legrslatefor its
annexation, they willbe takinga step whichwill isolate them not
onlyfrom world opinion but will also lose them the support that
theyhave. "
Thecharacterizatioo nf PalestiniaterritoriethatfellunderIsraelicontrolin
1967 as occupiedterritorieshasbeenconiïrmedby statementsmadeby the various
delegatesof the greatpowersin the SecurityCouncil.We especiallyreferto the
statements madebyLord Caradon oftheUnitedKingdomwhowasknownforhaving
drafledthefarnoustextof resolutionNo. 242 andespeciallythephrase"withdrawal
fiom occupied temtories",and who referredto and cohed the statement
previouslymadeby theBritishSecretaryof StatCfor ForeignMairs in the speech
referredto herein above at the specialroundof the GeneralAssembly,as Lord
Caradon stated:
'Tf1had tosum up thepolicy whichhas been repeatedlystated by
my Govemment, 1 wouldgo back to thewordsused bymyForeign
Secretaryin the GeneralAssembly less than a month ago. nese
werehiswor&:
'I shouldliketorepeatwhatI saidwhenI was here before:Britain
doesnotacceptwarasa meansof settlingdisputes,not thata state
shouldbe allowedto extenditsfrontiers as a resultof a war. îXis
meansthat Israel mustwithdraw. But equally,Israel'sneighbours
must recogniseits right to exist, and it must enjoy security within
itsiontiers. %t we must workfor in this area is durablepeace,
the renunciationof al1aggressivedesigns,and an end topolicies
whichareinconsistentwithpeace. ' " He statedfùrther:
'7. Ourresolutionwe stated theprinciple of the 'withdrawalof
Israeli armed forces from territories occupied in the recent
conflict'and in thepreambleweemphised 'theimahtissibilityof
the acquisitionof territoryby war.'In Ourview, the wording of
thoseprovisions is clear. We believe that it would be a serious
error to attemptut this stage to varyor add to them. Nor arewe
prepared to alter thewordingof the remainderof the resolution,
includingthatconcemingthenecessityofsecuring alastingpeace,
which I emphise again,waspreparedwiththegreatestcareafcer
Iistening longpatient& to the viewsput to us by those direct&
concemed "
Mer that, the words of Mr. Bernard,the representative of Franceat the
Security Counci wl ere decisiveregardingthisissue,as he stated,priorto votingon
thisresolution,attheSecurityCouncilsessionof 22 November1967:
"We must admit, however, that on the point which the French
delegation has ahvqysstressedas being essential-the questionof
withdrawalof theoccupationforces- theresolutionwhichhas been
adopte4 if we refer to theFrench text which is equal&authentic
withtheEnglish, Zeavesno roomfor anyambiguity,sinceit speaks
of withdrawal 'des territoires occupes > which indisputab&
correspondstotheexpression 'occupiedterritories '.
We are likewise grati3ed to hem the United Kingdom
representative sfress the link between this paragraph of his
resolutionand theprinciple of inahissibiliv of the acquisitionof
territoriesbyforce, and pote the word used last September by
his Secretary of State for Foreign Aflairs in the General
Assemb&. '"
In his statement,Mr. George Brown,expressinga concem shared
byhisFrench colleague,alsosaid:
'7believethatJerusalemtoorequires aspecialmentionhere. The
Britishpositionwasmade quite clearwhen,with the vastmajority
of the Members of this AssembZy,we voted this summerfor the
resolutionscalling on Israel to do nothing toprejudice the status
ofJerusalem. "
The UnitedNations'GeneralAssemblyand the SecurityCouncilissued a
greatnumber of resolutionsthatconfinnedthelegalstatusof Palestinian territorias
occupied territories,includingEast Jerusalem,and cded upon Israelto abideby
InternationaHl umanitariaLnaw andthe FourthGenevaConvention. 17 Itis worth
17 EspecialltheSecuritCouncil resolutiisssuedafterresolution242,the mosimportantof
whichis resolutiNo. 250 (1968) 27/4/1968, 251 (1968) 2/5/1968, 252 (1968) 21/5/1968, 267
(1969)3171969,298 (1971)2519971,338 (1973)22/10/1973,446 (1979)22/3/1979,452 (1979)
20/7/1979, 465 (1980) 1/3/1980, 476 (1980) 30/6/1980, 478 (1980) 20/8/1980, 904 (1994)
18/3/1994,1073(1996) 28/9/1996, 1397(2002) 12/3/2002.referringto someof theseresolutions,which werefiequentlyadptedespeciallyafter
Israel's applicationof its settlementpolicy on Palestinianoccupied territories,
includingresolution446 (1979)stating:
"Affirming once more that the Fourth Geneva Convention
relative to theProtectionof CivilianPersonsin Timeof Wm of
12Aupst 1949is applicableto theArab territoriesoccupied by
Israelsince1967,includingJerusalem,
1. Determines that the policy and practices of Israel in
establishing settlementsin the Palestinian and other Arab
territoriesoccupied since 1967 have no legal validity and
constitute a serious obstruction to achieving a
comprehensive, just andlastingpeace in theMide ht.
2. Strongly dèploresthefailure of Israel to abide by Security
Councilresolution237(1967)of14June 1967,252(1968)of
21May 1968and 298 (1971)of 25September 1971and the
consensus statementby the Presidentof the SecurityCouncil
on II November 1976and General Assembly resolutions
2253(ES- Y) and 2254(ES-V)of 4and 14Julyand324 of 28
October1977and 33/113of 18December 1978.
Calls once more upon Israel, asthe occupying Pawer, to
abidè scrupulouslyby the 1949 Fourth Geneva Convention,
to rescinditsprevious and to desistfrom tahng any action
which would result in changing the legal status and
geographzcalnature and materially affecting demographic
composition of the Arab territories occupied since 1967,
including Jerusalem,ad, inparticular, not to transferparts
of its own civilian population into the occupied Arab
tewitories;"
ThePreamble of SecurityCouncilresolution465 of 1March1980states:
'2Affirmingoncemore that theFourth GenevaConventionrelative
to theProtectionof CivilianPersonsin Timeof Warof 12August
1948is applicableto theArab territories occupiedbyIsrael since
1967,includingJerusalem. "
The United NatiGsenerai ssemblyalsoissuedseveralresoluconfirmintheconsideration
ofPalestintemtonesasoccupiedtemtories, includnparticularr,esoluNo.n2253(ES-V)
4/7/1967, 2254 (1967) 14/7/1967, 2443 (=19/12/1968, 254(XXIV) 11/12/1969, 2727
(XN) 15/12/1970, 2851 (XXVI) 20/12/1971, 77154- 6/12/1999, 78154- 6/12/1999, 79154-
6/12/1999, ES-1017-20/10/2000, 50155- 1/12/2000, 131155- 8/12/2000, 132155- 8/12/2000,
133155-8/12/2000, 134155-8/12/2000,36156-3/12/2001, 60156-10/12/2001,61156-10/12/2001,
62156-10/12/2001,(ES-1018)-20/12/2001, (ES-1019)-20/12/2001, (ES- 10110)-7/5/2002, (ES-
10111)-5/8/2002,107157-3/12/2002, 108157-3/12/2002, 111157-3/12/2002, 124157-11/12/2002,
125157-11/12/2002,126157-11/12/2002, 27157- 11/12/2002, (ES--021/10/2002, 22158-
3/12/2003,97185- 9/12/2003,98158-9/12/2003,99185-9/12/2003. Paras 5and6 ofthe sameresolutionstate:
"5. Determinesthat al1measurestaken by Israel to change the
physical character, demographiccomposition, institutional
structure or status of the Palestinian and other Arab
territories occupiedsince 1967,including Jerusalem, or any
part thereoJJhave no Iegalvalidity and that Israel'spolicy
and practices of settling parts of its population and new
immigrantsin those territoriesconstituteaflagrant violation
of theFourthGeneva Conventionrelativetu theProtectionof
CivilianPersonsin Timeof War and alsoconstihrtea serious
obstructiontu achieving a comprehensive,just and Iasting
peace in theMiddle ht;
6. Stronglydeploresthe continuationandpersistence of Israel
in pursuing thosepolicies and practices and calls upon the
Govemmentandpeople of Israel tu rescindthose measures,
tu dismantle the existing settlements andin particular tu
cease, on an urgent basis, the establishment,construction
andplanning of settlementsin the Arab territoriesoccupied
since1967,includingJerusalem. "
Though Israel debated for some time the status of the West Bankand Gaza
Strip as occupiedterritories inorder to pursue its seulementpolicywith the aimof
annexing the greatest possible parts of these lands to its own territory, it soon
retreatedgraduallyfiom this stance. This took place in two stages, the first being
Israel's repeated declarationof its de facto obligationto apply theFourth Geneva
Conventionfioma "humanitarianperspective."
That was followed by the agreements which Israel concluded with the
Palestinian Liberation Organisation (PLO). A fundamentalprinciple prevailedin al1
these agreements,which isthe territorialunity of the West Bankand Gaza Strip, a
matterwhichwas conveyedin Article4 of the Declarationof Principlesfor Self- Rule
Arrangements(13 September 1993),stating:
"Jurisdictionof theCouncilwill cuver WestBank and GazaStrip
territory,xceptfor issuesthat willbenegotiatedin thepermanent
status negotiations.me two sides view the WestBank and the
Gaza Strip as a single territory unit whose integrity will be
presewed duringtheinterimperiod. "
There is no doubt that deerningthe West Bankand Gaza Strip as occupied
temtories entailscertain obligationson Israelwhichare intotal contradiction withthe
constructionof the separation wd, subjectof the requestedAdvisoryOpinion.Such
obligationsarespecificallyasfollows:
(1) Israel's obligationto respect the rules of the InternationalHumanitarianLaw
mandatorily applicable in the occupiedtemtories, whether those stated in The
Hague Conventionsof 1899and 1907or in the Geneva Conventionsof 1949,
especiallythe Fourth Geneva Conventionon the Protection of CivilianPersons
intirneofwar. (2) Israel'sobligationnot to prejudicethe territorialsafety andintegrityof the West
Bank, including East Jerusalem and the Gaza Strip, in application of its
internationalobligations,in accordancewiththe UnitedNations resolutionsand
the bilateral conventiconcluded betweenIsraelandthe PLO.
1. Israel's obligationto respect the rules of the InternationalLaw
applicable in occupied territories: Military Occupation Law
(TheHague RegulationsonWaronLand).
Sincethe end of the nineteenth century,the world communityhas been keen
on recording the rules of war law, includingthe legal principles governingand
regulating rnilitaryoccupation and the status of territoriesunder occupation. On
grounds of a large number of texts codifjing some customaryrules of International
Law as weii as some reliable practices camed out internationaliy, The Hague
Regulations annexedto The Hague's Fourth Conventionof 1907 on War on Land
Laws and practices (Articles42 to56) and the GenevaConventionon the Protection
of CivilianPersonsat the Tirneof War signedon 12August 1949and Articles27 to
34 and 47 to 78, tackled war occupation and identifled the authorities of the
occupyingpower and the duties of the persons on the occupiedtemtory. They also
identifiedthe duties of the occupyingpower towards them and the rights they are
entitledto.
It is undisputed thatilitaryoccupation does not entail the transfer of the
sovereigntyof a stateavinglegitimate sovereigntyover a territory to the occupying
state. This onlygrants temporaryand limitedauthoritiesto that state to enableit to
managethe occupiedterritory. Theconventionaltheory of the War Law determines
the authorities of the occupying force by way of war as stated above Since the
originalstateemainsentitledto the sovereigntyof the occupiedterritory, and since
war occupationcreatesa temporarysituationanda de facto status,thenthe authorities
of the occupyingforce in totality are confinedto securingthe managementof the
occupiedterritoryand ensuringproper orderthereat. Suchauthoritiesare limitedand
mustbe interpretednarrowly.
Even thoughwe arenot depictingthe authorities ofoccupyingforcesin detail,
it is sufficientto highlightthe authorities of occupyingforces with regardto public
and privatepropertiesin anoccupiedterritory.
(a) TheTreatmentofPublicPropertiesin an Occupied Territory
The first paragraphof Article 53 of The Hague Regulations onWar on Land
dated 1907on moveableproperties owned by the state, the territory or part of the
territory ofwhichsoccupied,statesthe following:
"Anarmyof occupationcan on&takepossessionof cash, fi&,
and realisablesecuritieswhich are strict& the property of the
state,epotsofarms,meansof transport,storesand supplies,and
generalZya, ll moveableproperty belongingtuthestate whichmay
beusedfor milztaryoperatiom. '' As regards to state owned real estate and lands located in the occupied
temtory, Article55 of The Hague Regulationsstates:
"ne occupying stateshall be regardedon&asadininistratorand
usufhctuary of public buildings, real estate, forests, and
agriculturalestates belongrngtu thehostile state,and situatedin
the occupied country. It mustsafeguard the capital of these
properties, and administerthem in accordancewith the rules of
umfruct."
(b) PrivateProperty
It is indisputablethat the occupyingforce may not seize privateproperties in
the occupiedterritory since such private propertiesin the occupiedterritory are not
deemed by any means as war gains. The occupyingforce may not seize such
properties,as it shouldrespectand protect them,whetherthey be moveableassets or
real estates. Article46 of The Hague Regulationsstressed thenecessityof respecting
private properties in an occupiedterritory and the forbiddanceof confiscatingsame,
asit states:
"Familyhonour and rights, the lives of persons, and private
property, as well as religious convictions andpractice, must be
respected PrivatepropertycannotbeconJiscated "
2. Israel's ObligationNot to Prejudice the Territorial Integrity of
PalestinianOccupiedTerritory: The West Bank (includingEast
Jerusalem)andGazaStrip:
SinceIsrael hasspecificlegal obligations,then it shouldadjustits conductand
behaviouras a force occupyingPalestinianterritory in accordancewith the principles
and provisions of the International Humanitarian Law as has been previously
demonstrated. Israel's construction of the separation wall, which entails the
confiscationof Palestinianlands ownedby Palestinian citizenswho are inhabitantsof
occupied Palestiniantemtory and the confiscation of lands which fall within the
publicdomain are in violationof specific provisionsof The Hague Regulations on
Waron Land of The Hague'sFourth Convention of 1907 as has been previously
demonstrated,andthe FourthGenevaConventionas shd be detailedhereinafter.
Moreover, the construction of the wall, with al1the consequences thereof,
constitutes a flagrant Israeli violationof its international legal obligationsnot to
prejudicethe territorialintegrityof the West Bank,includingEast Jerusalemand Gaza
Strip. Such obligationsare set out in GeneralAssemblyresolution273 (3), by virtue
of which Israel was adrnitted as a United Nations member, as well as in a great
number of Security Council and General Assembly resolutions, especially those
adopted since 1967 to this very date, and in the bilateral agreements concluded
betweenIsraelandthe PL0 or thePalestinianNational Authority. The UnitedNations' GeneralAssembly'sResolution AdmittingIsraelas a
(a)
UnitedNations Member
The United Nations' GeneralAssemblyissued its resolution273 (III) on 11
May 1949 admittingIsraelas a UnitedNationsmember,in whichit clearlyreferredin
its Preamble to the resolution on the partition of Palestine, the resolution on the
refiigee's right of return, and the declarations and clarifications made by the
representative of the 18raeli State before the special Political Committee regarding
those two resolutions. By referringto the discussionsheld by that Committee,the
statementsby Mr.Aba Eban, the Representativeof the provisionalGovernmentof
Israel, regarding the boundaries, afkming that his Government accepts the
boundaries determined by the partition resolution for the Israeli State, with the
possibilityofmaking some minor amendmentsthereto fier holding negotiations in
this regard, are incorporated by reference. In his statements he confirmed the
following:
"Mr. Eban then stated the views of his Govemment on the
boundiny question, remarkrng that they did not seem to
constitutea majorobstacleon theroadtoa settlement. ne fact
that an Arab state had not arisen in the part of Palestine
envisagedby theresolutionof 29 November1947, as wellas the
circumstances of war and military occupation, rendered
essential aprocess of peacefil adjustment of the territorial
provisions laid downin that resolution. ne GeneralAssembly
itselfhad twiceendorsed theneed of such apeacefil aaustment
and ifs representatives had even JTom time to time made
proposa1for effectingchanges in the territorial dispositionsof
that resolution.ne view expoundedby the Imaeli Govemment
duringtheJirstpart of the thirdsessionwasthat the adjustment
shouldbe madenot by arbitrarychangesimposedfrom outside,
but throughagreementsfreely negotiated by the Govemments
concerned The principle had commended itself to the
overwhelming majority of the General Assembly which had
dëclined to endorse any specijic territorial changes and had
dealt with the problemin paragraph 5 of resolution 194 (7111)
which called upon Governmentsand authorities concerned to
extendthescopeof thenegotiationsprovidedfor in the Security
Council resolutionof 16November1948 and to seek agreement
by negotiations conducted either with the Conciliation
Commissionor directly with a view to aJinal settlement of al1
questionsoutstandingbetweenthem. "l9
The statementsmade by the representative of the IsraeliGovernmentbefore
the Ad-Hoc Political Cornmitteeof the United Nations' General Assembly,which
18 Pleaserefertofootnote15for the completetext ofthis resolution.
19 Ibid,p.241. were deemed as conditionsfor Israel'sadmissionas a UnitedNations member,reveal
that the Israeli State had accepted the boundaries definedby the resolution on the
partition of Palestine.It had declaredits acceptanceof and obligationto respect the
boundaries outlinedby the sarneresolutionfor the Arab State. It agreed not to make
any territorial adjustments tothe boundaries outlined by the resolutionbetweenboth
states except by an agreement to be concludedbetween the concemed States.
Moreover, the acceptance of the internationalizationof Jerusalem, constitutes an
obligationto respectthe entirepartition resolutionand obligatesIsrael not to obstruct
the execution of resolution 181 of 1947,even if not accepted by the Palestinian
people,who believedthat it prejudicedtheir legitimaterights.
Such Israeli obligationis deemed a specific legal obligationwhich was a
conditionfor the UnitedNation'srecognitionof Israelas a State and its admissionas
a memberthereof Thisobliges Israel notto carryout any act that may prejudicethe
territorial integrity of the territories on which a Palestinian State should be
established,since such kind of prejudicemay obstruct the establishmentof such a
State,whichwould, inturn, preventthe UnitedNationsfiom carryingout its legaland
political obligations towards the Palestinian people and granting it its political
independenceand the territorial integrity of the temtory on which an independent
PalestinianState should be established. Therefore,Israel's occupation of the parts
outsidethe boundariesdefinedby the partitionresolution,its occupation of theWest
Bank and Gaza Strip in 1967, and its decisionto annex East Jerusalem, constitute
violations of its legal obligations under the resolution by virtue of which it was
adrnittedas a UnitedNationsmember. It shouldbe noted that the discussionsheld at
the specialsession of the United Nations' GeneralAssembly helddirectly after the
1967War (19 June - 3 July 1967)and the GeneralAssemblydiscussions resuitingin
the issuanceof SecurityCouncilresolution 242 (1967)in November 1967, reflectthe
importanceof safeguardingthe territorialintegrityof the Palestinianterritories under
Israeli occupationsincethat date. 20 Its confirmationof this principle withrespect to
memberStates of the United Nations, impliesits confirmationof such principlewith
20 GeneralAssembly-nfth EmergencySession,June, UnitedNationsGeneralAssemblyOBticials
Records,
1526" Plenary eeting, Ju19, 1967
1529"~lenary~eetin~,June21,1967
1530" Plenary eeting, Ju21, 1967
1531"PlenaryMeeting, Jun22,1967
1532"PlenaryMeeting, Jun22,1967
1533dPlenaryMeeting,June23, 1967
1536"Meeting,June26, 1967
1537" and 1538" Plenary eetings,June27, 1967
1539" PlenarMy eeting, Ju28,1967
1542ndplenaryMeeting,June29, 1967
1546" PlenarMy eeting, Ju23, 1967
OfficiRecordsof theSecuritCouncil
1373~Meeting,November 9, 1967
1379"Meeting,November16, 1967
1381"Meeting,November 20, 1967
13~2"M~ eeting,November22, 1967 respect to the Arab State (the PalestinianState)whichthe UnitedNations undertook
to establishwithinthe boundariesdefinedby GeneralAssemblyresolution 181 (Third
Round), the State whichhas been in the processof being establishedsincethat date.
The construction of theseparation wallisyet a newobstructionto its establishment.
(b) United NationsResolutions
We have previously referred to a great number of Security Council and
General Assemblyresolutions condemningthe procedures and measures carried out
by Israel on the Palestinian occupiedterritories and Israel's violation of its legal
obligations, especially its construction of settlements and the transfer of Jewish
immigrantsto Palestinianterritories. It is sufficienthereto point out to one of the
SecurityCouncilresolutions,in whichthe Council condemnedsuchmeasures. Thatis
resolution 471 (1980)issued on 5 June 1980,in whichthe Council reafErmedin its
Preamble, resolution465(1980) referredto herein above,and statedthe following:
"ReaBrming its resolution 465 (1980) by which the Security
Councildetermined 'that al1measures taken by Israel to change
the physical character, demographiccomposition, institutional
structure or status of the Palestinian and other Arab territories
occupied since 1967, including Jerusalem, or any part thereox
have no legal validity and that Israel'spolicy and practices of
settling parts of its population and new immigrants in those
territoriesconstituteajlagrant violationof theGenevaConvention
relativeto theProtectionof Civilian Personsin Time of Warand
alsoconstitutea seriousobstructiontoachievinga comprehensive,
just and lastingpeacein theMiddlekst andstronglydeploredthe
'continuationandpersistence of Israel inpursuing thosepolicies
andpractices. "
4. Callsagainupon the Governmentof Imael torespect andto
complywith theprovision of the GenevaConventionrelative
to theProtectionof CivilianPersons in the Timeof War, as
wellaswiththerelevantresolutionof theSecurity Council.
6. ReafJirms the overriding necessity to end the prolonged
occupationof the Arab territories occupied by Israel since
1967, includingJerusalem. ' "
The above position was repeated in a large number of Security Counciland
GeneralAssemblyresolutions, referredto herein above.It is sufficientto refer to the
General Assemblyresolution ES-1011 4 issued on 3 December 2003 in particular,
requesting theadvisoryopinion onthe legal consequencesof Israel's constmction of
the separation wall on the Palestiniantemtories, in which it enumerated relevant
Security Councilresolutions aswell as International Law principlesand provisionsbindiigon Israel,whichthe separation wallis considereda flagranviolation,asthis
resolutionstates:
"ne GeneralAssembly,
ReafJirmingitsresolutionES-10/13 of21October,
Guidedby theprinciplesof theCharterof the UnitedNations,
Aware of the established principles of internationallaw on the
inadmissibilityof theacquisitionofterritorybyforce,
Aware also that developingfriendly relations among nations
based on respect for the principle of equal rights and self-
determinationof people is among thepurposes andprinciples of
theChter of the UnitedNations,
Recalling relevant General AssembIy resolutions, including
resolution 181(7..of 1947, whichpartitionedmandirtedPalestine
intotwoStates, oneArab andoneJewish;
Recalling also the resolutions of the tenth emergency special
session,
Further recalling relevant Security Council resolutions, 242
(1967)of 22November1967,338 (1973)of 22 October1973,267
(1969) of 3 July 1969, 298 (1971) of 25 September 1971, 446
(1979)of 22March 1979,452(1979)of 20 July 1979,465 (1980)
of I March 1980, 467(1980)of 30June 1980, 478 (1980)of 20
AU* 1980, 904 (1994) of 18March 1994, 1073(1996) of 28
September 1996,1397 (2002)of 12March 2002 and 1515(2003)
of 19November 2003.
ReafJirmingtheapplicabilityof theFourthGenevaConvention,as
well as Protocol IAdiZitionalof the Geneva Convention to the
OccupiedPalestinianTerritory,including &st Jerusalem,
Recalling the Regulations annexed to ïhe Hague Convention
respectingLuwsCustomsof Waron Land of 1907,
Welcomingthe conveningof theConferenceof High Contracring
Parties to theFourth GenevaConventionon memres to enforce
the Conventionin the OccupiedPalestinian Territory,including
Jerusalem,ut Genevaon 15July1999,
Expressing its support for the declaration adopted by the
reconvenedConferenceof High ContractingParties ut Genevaon
5December2001,
Recalling in particular relevant United Nations resolutions aflrming that Israeli settlementsin the Occupied Palestinian
Territory, including the East Jerusalem,are illegal and an
obstacletopeace and to economic andsocial developmentas well
as thosedemandingthe completecessationofsettlementactivities,
Recalling alsorelevant UnitedNations resolutionsaflrming that
actions takenbyIsrael, the occupyingPmer, to change thestatus
and demographic compositionof Occupied East Jerusalem have
no legalvalidityand are nulland void,
Noting the agreements reached betweenthe Govemment of Israel
and the PalestineLiberation Organisationin the context of the
Middle Eastpeaceprocess,
Gravely concemed at the commencementand continuation of
construction by Israel, the occupying Pmer, of a wall in the
Occupied Palestinian Territory,including in and around East
Jerusalem,which is in departurefrom the Armistice Lineof 1949
(GreenLine) andwhichinvolvedthe confiscationand destruction
of Palestinian land and resource, the disruption of the lives of
thousa& of protected civilians and the de facto annexation of
large areasof territory, andunderliningtheunanimousopposition
bythe internationalcommunityto theconstructionof that wall,
Gravelyconcemed also the even more devastating impact of the
projectedparts of thewall on the Palestiniancivilian population
and on theprospectsfor solving the Palestinian-Israeli conJlct
andestablishingpeace in theregion (..)"
(c) Bilateral Agreements between thePalestinianand Israeli Parties
Israel has specifïclegal obligationsto respect the territorial integrity of the
West Bank, includingEast Jerusalemand the Gaza strip. Such legal obligationsare
based on des and provisions of InternationalLaw, UnitedNations resolutions,in
particularthose issued by the SecurityCounciland the GeneralAssembly,including
the resolutiononIsrael'sadmissionas a UnitedNationsmember,referredto above.
Moreover,the peaceprocessthat commencedinMadridunderthe sponsorship
of the United States and the Former Soviet Union in October 1991 resulted in
concludinga numberof international agreements between the Palestinianand Israeli
sides. Such agreements stressedthe obligation of Israel to respect the territorial
integrity of the West Bank and Gaza Strip, and to regard them as one integral
territory, that is the temtory on which the Palestinianpeople are to establishtheir
state. This is based on its rights of self determination, and in application of the
resolutionsof the SecurityCouncil, in particular resolutions 242 and 338, and the
otherrelevant Security Councia lndthe GeneralAssemblyresolutions. It is worth mentioningthat the two sideshaverecognizedthe ArmisticeLines
established upon the entry by Israel into the Armistice agreements with its
neighboring Arabcountries. Such linesrepresentthe borders between Israel and the
occupied Palestinian territories, and beyond which lines Israel must withdraw
pursuant to the above mentioned Security Councirlesolutions,and in applicationof
the land for peace principle,which is consideredthe basis of the peace process
commenced intheMadridconferenceof 1991.
We have previouslyreferred to Article (4) of the Declaration ofPrinciples,
whichwas signedby the two parties in WashingtonD.C, United States of Arnerica,
on 13September, 1993. Thereundert,he two sidesagreedto considerthe WestBank
and Gaza Strip as a singleterritorialunit. Thiswas also&rmed in the preambleof
the interim agreement on the West Bankand the Gaza Strip, which was signed in
WashingtonD.C between Israeland the PalestinianLiberation Organization,on 28
September 1995.
"Recognizingthat these elections will constitute a signzjicant
interimpreparatory step tawardsthe realizationof the Iegitimate
rightsof thePalestinianpeople and theirjust requirement and will
provide a democratic basisfor the establishmentof Palestinian
institutions;
Article 11 of the said agreement provides in its first paragraph, as
follows:
"1. ne fwo sides view the WestBank and the Gaza Stripas a
singleterritorialunit,theintegrityandstatusof whichwillbe
preservedduringtheinterimperiod "
Article 17 of the sarne agreementrefers to the Declaration ofPrinciples of
1993,and stipulatesthat the authority ofPalestinianNational Councic loversthe West
Bankandthe GazaStrip,beinga singleterritorialunit.
Paragraph7 ofArticle 31ofthe saiddeclarationprovidesthat:
"7. Neithersi& shall initiateor take any step that will change
the statusof theWestBankand the GazaStrippendingthe
outcomeof thepermanentstatus negotiations. "
In summq the construction of the separationwd, consideringal1effects
arising therefiom, codicts with and violates Israel's obligations under the
agreementsentered into with the Palestinian side. Such construction represents, in
reality,a flagrant violationof theaid agreementsas it defacto annexesparts of the
occupied Palestiniantemtories, whose temtorial integrityIsrael isbound to preserve.
Such construction, moreover,impedesthe establishmentof a PalestinianState (Arab
State), which Israel has acceptedpursuant to the GeneralAssemblyresolution that
admits Israel as a U.N. member, and is bound to assist the United Nations in
facilitatinguchestablishment. Fourth: Violations of International Humanitarian Law,
particularlythePourthGeneva Conventionof 1949
InternationalLaw prohibitsuse of force in international relations,condemns
occupation of the land of others, and brands same as illegitimate and iliegal.
However, such law does not overlookthe painfiilreality of armed confiictsthat are
unfortunatelystillused by somecountriesas a meansfor resolvingtheir disputeswith
other. This matter calledfor interventionby the internationalcommunitin order to
mitigatethe severeimpactof usingforce, to prevent extensionofits impactto civilian
non-combatants,andto stopit frombeingusedagainstcivilianobjects.
It is establishedjurisprudence of International Law that the four Geneva
Conventionsof 1949embodythe customary rules of InternationalHumanitarianLaw.
Some of such rules are now deemedJus Cogens,and may not be breachedexcept
upon the emergence of subsequent legal rules that have the same capacity and
regulatethe samesubject.In fact,the internationalcommunityhas madegiant strides
in establishingthe des of InternationalHumanitarianLaw in the form of the said
fourconventions.
As such,all Statesin the internationalcommunityare directly subjectal1the
rules provided in the said Geneva Conventions, whetheror not they are parties
thereto. This is in view of the fact that such rules lay down the customaryrules of
InternationalLaw on the mattersthey regulate,regardless of their contractualor long
standing customarynature.
Specifically,theFourth GenevaConventionof 1949relativeto the protection
of civilianpersonsin time of war istotally applicableto the Gaza Strip and the West
Bank, includingEast Jerusalem. Inother words, the said convention appliesto the
whole of the land that is under the Israeli occupationsince 1967, as Israel is an
occupying power thereof This opinion enjoysconsensus amongthe international
comrnunity,exceptfor certainunfoundedIsraeli opinions. Insupport of our opinion,
we refer to the United Nations Resolution No. Al581155issued on 15 July 2003,
which providesinits operativepart 1,2 and3 ofthe preamble,as follows:
"Be GeneralAssembly,
1. Reaffirms tfha the Geneva Convention relative to the
Protection of Civilianersonsin timeof Wm, of 12August
1949, is applicable to the Occupied Palestinian Territory,
includingEastJerusalemand otherArab territories occupied
byIsrael since1967.
2. DemandrthatIsraelaccepts the dejure applicability ofthe
Conventionin the OccupiedPalestinian Territoryincluding
EastJerusalemandother Arab territories occupied by Imel
since 1967, and that is complies scrupulously with the provisionsof theConvention.
3. Calls upon al1High ContractingParties tu the Convention,
in accorahncewith Article I commun tu the four Geneva
Conventions, tu continuetu exertal1effortstu ensurerespect
for its provisions by Israel, the occupying Power, in the
Occupied Palestinian Territory,including East Jerusalem,
andotherArab territoriesoccupied byIsrael since 1967".
In such context,the conferenceof the High ContractingParties to the Fourth
Geneva Convention,in its speciaisessionheld in Genevaon 15 July, 1999,pursuant
to the United Nations ResolutionNo. ES-1016, affirmed that the said Fourth
Conventionislegallyandtotallyapplicable:
"..The participating High Contracting Parties reafJirmed the
applicabilityof the Fmrth Geneva Convention tu the Occupied
Palestinian Territory,including Ea;stJerusalem. Furthermore,
they reiteratedthe needfor full respectfor theprovisions of the
said conventionin that Territory. Taking into considerationthe
improved atmosphere in the Middle East as a whole, the
Conference was adjoumed on the understanding that it will
convene again in the light of consultationsof thedevelopmentof
thehumanitariansituationin thefield "
Inviewof continuousdeterioration of thesituationin the occupied Palestinian
territories, theigh Contracting Parties to the Fourth Geneva Convention held
another meeting in Geneva on 5 December 2001, in which they reiterated the
applicability the saidConventionto the WestBankandthe Gaza Strip,asfollows:
"TakrngintoaccountArticle 1of theFourth GenevaConvention
of 1949 and bearing in mind the United Nations General
Assembly Resolution ES-10/7, the participating Contracting
Parties reafJirm the applicability of the Convention to the
OccupiedPalestinian Territory, includingEast Jerusalem and
reiteratethe needfor fil1 respectfor the provisions of thesaid
Conventionin that territory. mrough the presentDeclaration,
they recall in particular the respective obligations under the
Conventionof al1High Contracting Parties @.-4/7), of the
partiestu theconflict(jar.8-11) andof theStateof Israel as the
OccupyingPower @m. 12-15)."
In fact and accordingto the relevantmaps,the constructionof the separation
wall wiil actualiydevourtremendousareas of the Palestiniansterritories in the West
Bank,particularlyin such areas populated with Israeli settlements, whichare deemed
by themselves an ongoingwar crime. Article 49 of the Fourth Geneva Convention
barsthe occupyingpower £rombuildingsettlementsin the occupiedterritoriesfor the
benefitof itsown civilians. It provides as follows:"The OccupyingPower shall not
deportor transfr parts of itsowncivilianpopulation intotheterritoryit occupies". The same Article prohibitsthe occupying state from taking measures to
displacethe populationinthe occupied temtories out oftheir land. It provides:
'Yndividualor massforcible transfers, aswellas deportationsof
protected personsfrom occupied territoryto the territoryof the
OccupyingPower or to that of any other country,occupied or
not, areprohibited,regardlessof theirmotive.
Nevertheless, the Occupying Power may undèrtake total or
partial evacuation of a given area if the security of the
population or imperative military reasons so demand Such
evacuations mqv not idve the displacement of protected
persons outsidethe boun&of theoccupiedterritoryexceptwhen
for materialreasonsit is impossibleto avoid suchdisplacement.
Persons thusevacuatedshd be transferredback to their homes
assoonashostilitiesin theareainquestionhave ceased
TheOccupyingPowerundertakingsuch transfersor evacuations
shall ensure, to the greatest practicable extent, that proper
accommodationisprovided to receive theprotectedpersons, that
the removalsare effected in satisfactory conditions ofhygiene,
health, safety and nutrition, andthatmembersof thesamefamily
arenotseparated
The Protecting Power shall be informed of any transfrs and
evacuationsassoonas theyhave takenplace.
The OccupyingPwer shd not detainprotected persons in an
area particularly exposed to the dangers of war unless the
security of the population or imperative military reasons so
demand
The OccupyingPower shall not deport or transferparts of its
owncivilianpopulationintothe territoryit occupies. "
Sirnilarly,the constructionof the separationwall, in the form delineatedon
the maps and which existsin reality,will annexlarge portions of private and public
property of the Palestinian people. This runscounter to the express provision of
Article53 oftheFourthGenevaConventionof 1949,whichprovidesthat:
'2ny destructionby the OccupyingPower of real or personal
property belonging individually or collectively to private
persons, or to the State, or to other public authorities, or to
social or cooperative organizations,isprohibited, except where
such destruction is rendered absolutely necessary by military
operations."
Historyis full of violationsbyIsrael of InternationalHumanitarianLaw in the
Palestiniantemitories occupied since 1967. The United Nations resolutions have
thereforefrequentlyand explicitly condernnedsame. In such context, we recall, by way of exampleand withoutlimitation, United Nationsresolution465 on settlements,
whichwas adoptedunanimouslyon March 1"'1980. In its operativepart, paragraphs
5, 6 and 7providethatthe SecurityCouncil:
"Determinesthat all measures taken by Israel to change the
physical character, demographic composition, institutional
structureor status of thePalestinian and other Arab territories
occupied since 1967, includingJerusalem or any part thereof
have no legal valid9 and that Israel'spolicy andpractices of
semng parts of its population and new immigrants in those
territories constitute a flagrant violation of the Geneva
Conventionrelativeto theProtectionof Civilian Personsin Time
of War and also constitutea seriousobstructionto achieving a
comprehensive, just andlastingpeace in theMiddleEast.
StrongZydeplores the continuationand persistence of Israel in
pursuing those policies and practices and calls upon the
Govemment andpeople of Israel to rescind those measures, to
dismantlethe existing settlementsand in particular to cerne, on
an urgent basis,the establishment,constructionandplanning of
settlementsin theArab territoriesoccupied since 1967,including
Jerusalem, calls upon all States not toprovide Israel with any
assistanceto be used specz$calZyin connection with settlements
in the occupiedterritories"
In view of the excessiveviolationby Israel of its legal obligationsunder the
Geneva Conventionsof 1949,the UnitedNations GeneralAssemblycalledupon the
internationalcommunityto exert alleffortsto force Israelto respect suchconventions
being an occupyingforce in the occupied Palestinianterritories, including Jerusalem
andthe otherArab territoriesoccupiedsince1967.
Paragraph 3, A/58/155 of General Assembly Resolution of 15 July 2003
providesthatthe GeneralAssembly:
"CalZsupon all States to the Convention in accordmce with
articleI common to thefour GenevaConventions,to exert all
effortsin orderto ensurerespectfor itsprovisions byIsrael, the
occupying Power, in the Occupied Palestinian Tewitory,
including Jerusalem and other Arab territories occupied by
Israelsince 1967".
It is deplorablethat the violationsby Israel of the principlesof International
HumanitarianLaw have finallyculminatedin its building of a separation wall. At
thispoint,we assertthat the internationalcommunitydoesnot onlyundertakea moral
obligationor a political responsibiliregarding such violations,but also assumesan
expresslegal obligationto respect and ensure the applicationof the Fourth Geneva
Conventionin alicircumstances. Article1ofthe Conventionprovidesthat:
"ne High Contracting Parties undertake to reqect and to
ensurerespectfor thepresent Conventionin all circumstances. " FIFTH: VIOLATIONS OFINTERNATIONALLAWON
HUMAN RIGHTS
In additionto the fidlrespect and applicationof the rules of the International
HumanitarianLaw, the occupyingpower has an obligationto observe the rules of
International Law as regards human rights, as such rules constitute the general
principles of law provided for the benefit of people everywhere under all
circumstances. The internationalornmunityhas made significantstrides in the field
of human rights to the extent that the principlesof human rights have become a
source of pride for humanity. From the legal perspective,hurnanrights principles
constitutea significantpart of the rules of internationalcodifiedlaw, andthey are not
merelyguidelines.As a result, all states are under a legal obligationto strictlyapply
humanrightsrules,an obligationfiomwhichtheycannotescape.
In viewof the above,jurisdictionof the State has diminishedto give way to
the legalrules of humanrights. Under the title: " ne Protectionof Indivi&als and
Groups:HumanRightsandSelf-Detemination", ProfessorBrownlieconfirms:
"Toimposeresponsibilityon a state on theinternationalplane,
it isecessaryfor thecomplainantto establish thatthematteris
subject to internationallm or, moreprecisely, is not a matter
pure& within the area of discretion which international law
designatesas sovereignty. ïîte modernrule is stated in tenns of
the reserved domain of domesticjurisdiction and bears very
closelyon thequestionofhumanrights".
ThesameprofessorBrownlie iùrtheraddsthat:
"me domesticjurisdiction reservationdoes not qply if the
United Nations agency is of the opinion that a breach of a
speczjîclegal obligationrelating to humanrights in the Charter
itselhm occurred "l5
Definitely,such rules are binding to al1countries under all circumstances.
This means that the OccupyingPower must respect the basic principlesof human
rights in the occupied territories. In other words, the OccupyingPower may not
violate such rightsin the landunder its occupationand must observesuch obligation
inthesamemannerappliedinits ownterritory.
Accordingly,Israelis under an obligationto respect the conventionsrelatedto
human rights and to the customaryrules, which are in certain cases mandatoryand
have the force of imperative rules of law, such as the rules prohibiting racial
discrimination.
HumanRights Watch hascategoricallyand expresslycondernnedthe building
by Israel of the separationl and hasaffirmedIsrael'sobligationsin this regard, as
follows:
l5BROWNLIE ,an,PrincipofPublicInternatiLlaw,fourthed1990,p.552. 'Ysraelhas also raified numeroushuman rights treatiesthat
obligeit toupholdrightstofreedom of movement,and accessto
education, health care, work and water. These include the
InternationalCovenant onCivil and PoliticalRights (ICCPR),
the InternationalCovenant on Economic, Social and Cultural
Rights(ICESCR),and theConventionontheRights ofthe CM
In August (2003),the UA? HumanRights Committeesaid that
"in the current circumstances,the provisionsof the (ICCPR)
applytothebenefitof thepopulationof theOccupiedTerritories,
for al1 conduct by (Iiraeli) authorities or agents in those
territoriesthat affect the enjoymentof right enshrinedin the
Covenant and fa11within the ambit of State responsibility of
Israelundertheprinciplesofpublic international law.
UnderArticle 12 of the InternationalCovenanton Civil and
Political RightsrCCPR)f ,reedom of movementcanberestricted
forsecurityreasonsbuttherestrictionsshouldbelimitedtowhat
is necessaryandproportionate. As definedby the UN Human
Rights Committee, the authoritative human rights b@
interpreting the ICCPR, the restrictions should not make
movement theexception rather than the nom. ne barrier,
however, is creating walled-in enclaves confining terms of
thousanh ofpeople. It willinstitutionalizeaystem inwhichal1
movementis sharply restrictedexcept to a hand&l of permit-
holders,and eendangePralestinians'accessto basicserviceslike
education and medical care". (HumanRights Watch,Iirael:
WestBank EndangersBasic Rights, US. should deduct costs
from loanguarantees (;ym York, October1,2003) ".
In addition, by way of exarnple andwithout limitation,the said separation
wall constitutesa violationof the rights to fkeemovement, andto access to health
care and education services, and constitutes an infnngement upon Palestinian
property.It also impedesthe applicationof theule prohibitingacquisitionof landby
force,andofthe ruleontherightto self-determination.
In such context, under the tit"RzghtsProtected" Rebbecaa M.M. Wallace
reviewedthe rights prescribedunder the ICCPR and the ICESCR and underscored
that
"Both Covenantsrecognize the right of al1peoples to self-
determination andthe right tofreely dispose of their natural
wealthandresources.
Underthe title"Annexationand the Wall", JohnDugard, the rapporteur of the
HumanRightsCornmitteestated in his report on hisvisitsduring22-29 July2003 to
the occupiedterritories:
l6WALLACE R,ebeccanternationLaw,Thirded.,1997,p.210. "Thewall has seriousimplicationsfor humanrights. Itfurther
restricts the freedom of movement of Palestinians, restricts
access tu health and educationfacilities and results in the
unlawfultaking of the Palestinianproperg. However, thewall
has more serious implicationsasit violates two of the most
fundamental principles of contemporaryinternational law the
prohibition on theforcible acquisition ofterritoryand the right
to seIf-determination . SIXTH:IRRELEVANCEOF THE ARGUMENTOF
SECURITYREASONS
Security necessity does not juste cornmitting serious violations of the
principlesof InternationalLaw,incesecuritymeasuresmust be proportionateto the
extent of necessityand must employlegitimatemeans. Militarynecessity,moreover,
means the absolutely necessaryrequirements that are indispensablefor achieving
militaryobjectives.
Aggressionis categoricallyprohibitedaccordingto the rules of International
Law. Paragraph 1 of Article (5) of United Nations General Assemblyresolution
3314,adoptedon 18December 1974,and whichdefinesaggression,providesthat:
"No consideration of whatever naturew , hether political,
economic,militaryor otherwise,mq serveas ajustqîcationfor
aggression.
We must always bear in mind that military objectives must basically be
legitimatein themselvesin compliancewith lawsand customsof war. No fairperson
would regard the isolationof an entire populationin a large prison within a part of
suchpeople'sown landandthe confiscationof other areas of such land, a legitimate
militaryobjective,under the pretext that some "terrorists" arnong the said people
infiltrateinto Israel to carry out "terrorist acts". Moreover, the applicabilityof the
rules of InternationalHumanitarianLaw cannot be disrupted under the pretext of
military necessity,except when the relevantule itself provides for such exception
andlays dom itslimits.
Further, claims of legal self-defensedo not justebuilding the said wall.
InternationalLaw specifiesafiameworkfor exercisingsuch right, under the control
and supervisionof the Security Council. This is in compliancewith Article(51) of
the UN Charter,andthe rulesofinternationalcustom.l7
Accordingly,confiscationof private and public property and any destruction
or loss of anyindresultingfiom the constructionof the wall constitutesa complete
and evident war crime,assuch confiscationand destructionhave not occurred as a
result of an absolutenecessityto achievea legitimatemilitaryobjective. Israel itself
interprets it as "security measure" for protecting its people and settlers who are
illegallylocated in the occupiedtemtory. The meaningof "security measure" is a
totallydifferentconcept fiomthat of"militaryobjective".
Thus, the OccupyingPower remains obliged to respect human rights in the
occupiedtemtory, irrespectiveof the basis of its authority. In this connection,we
recallthe International Courtof Justiceinthe caseof SouthWestAfncaruledthat:
".WALLACE R,ebecc,p.ci&pp.252-253. "Undèrthe Charterof the UN, theMandatoryhad obligeditself
to observe and respect, in a territoryhaving an International
status, rights and findamental freedoms for al1 without
distinctiontorace ".8
Militarynecessitydoes not justi&violatingthe rulesof InternationaL l aw.
TheHigh Contracting Partite ostheFourthGenevaConventioni ,na meetingheldin
Genevaon 5 December2001, stressedthis meaningin its final declaration,as
follows:
"Theparticipating High Contractingparties stress the Fourth
Geneva Convention,which takesfil& into account imperative
militarynecessity,hm to berespectedin al1circumstances. ''
Moreover,the report of the UN SecretaryGeneralpresentedto the General
Assembly on24November2003 affirmedtheaboveasfollows:
'ln keeping with the request of the General Assembly in
resolution Es - 1043, 1 have concluded that Imael is not in
compliancewith theAssembly'sdemandthatit 'ktopand reverse
the construction of the wu11in the Occupied Palestinian
Territory"
'lmael has repeatedly stated that the Barrier is a temporary
measure. However, thescopeof construction and the amount of
occupiedWestBank land thatis eitherbeing requisitionedfor its
route or thatillend up between theBarrier and the GreenLine
are of seriousconcem and have implicationsfor thefuture. In
themiht of the Roud Map process, when eachpar@should be
making good-faith confidence-buildinggestures, the Barrier's
constructionin the West Bankcannot,is this regard, be seen as
anything but a dèeply counte~productiveact. De placing of
most of thestructureon occupiedPalestinianland could impair
future negotiations.
'l acknowledgeand recognizeIsrael'sright and duq toprotect
itspeople against terroristattacks. However, that du@should
not be carried out in a way that is in contradiction to
internationallm, that could damage the longer-termprospects
for peace by making the creationof an independent,viable and
contiguous Palestinian State more dzfficult, or that increases
Mering among thePalestinianpeople. Afrerso manyyears of
bloodshed dislocationand suffering,it should be clear to al1of
us, as well as to the parties, that on& through a just,
comprehensive,and lastingpeace settlement based on Security
Councilresolutions242 (1976)and 338 (1973)can the security
''I.C.J.,repoi1971p,57. of both Palestinians and Israelis be assure. nere is wide
supportin theinternationalcommunityfor a two-Statesolution -
Ib-ael and Palestineliving si& by side in peace and security
within secure and recognized borders, as called for by the
Security Council in resolutions 1397 (2002) and 1515 (2003).
ï3at supportmust urgent&be marshaledto assist theparties in
achieving thatend. lg
In view of the above, the UN SecretaryGeneral concludedthat even if we
assume for the sake of argument that Israel's objective in building the wall is
protecting its security,it has neverthelesscarriedout such undertaking in a manner
that flagrantlyviolatesInternational Law. The first componentof such violation,in
Ouropinion,is that it violatesthe principleprohibitingacquisitionof landby force, a
matter which constitutes a fundamentalbasis for the peaceful settlement of the
Middle East conflict. Buildingthe wall also constitutes a flagrant violation of the
principlesof International LawandUN Charter,whichstipulatethat forcemaynot be
used ininternationairelations.
". A/ES-10/248,24November 2003, p.7. SEVENTH: SUBMISSIONS
In the light of the above, the constructionby Israel of the separationwall
constitutes a flagrant violationof InternationalLaw and aousbreach of Israel's
obligations as the Occupying Power in the Palestinian territory. Moreover, the
commencement of and persistent continuationto build the said separation wd
violates the rules of InternationalHumanitarianLaw, and the principlesof human
rights, particularly,the rules prohibitingracial discrimination.The Palestinian people
locked up in ghettos created by the separation wall are denied the right to fiee
movement, andaccessto basicservicessuchas educationand healthcare.Moreover,
theirrightto self-determinaisprejudiced.
It is evident that buildingthis isolationwd cannot be justified by military
necessityor self-defenserequirements.
NOW,THEREFORE,
The ArabRepublicof Egyptrespectfùllycallsupon the International Courtof
Justice, pursuant to its jurisdiction to issue advisoryopinions in accordance with
Article(96)oftheU.N.Charter,andArticle(65) ofits Statutes,to declare:
"that Israel's construction of the separation wall in the occupied
Palestinian territoriesisawful,pursuantto the rules and principles of
International Law, theFourth Geneva Convention of 1949, and the
relevantresolutionsofN SecurityCouncilandGeneralAssembly
thatIsraelshallbeheldliableforthe consequencesarisingtherefiom,
and that accordingly Israel should undertake to restore the status quo
ante."
OnBehalf Of
TheArabRepublic of Egypt
Legal Memorandum submitted by the Arab Republic of Egypt