Courinternationalede Justice
Enre----------reff3 0JAN 2.0~4/15
InternationalCourt of Justice
SyrianArab Republic Filedinthe Regi:tryon
Ministry of Foreign Affairs
International Court of Justice
REQUEST
For advisory opinion
Transmitted to the Court pursuant to General
Assembly resolution AIRESIES-10114 (AIES-101L.16)
Of 8 December 2003
Legal consequences of the construction of a wall in the
occupied Palestinian territories
A memorandum presented by the Syrian Arab Republic
in implementation of Section (2) of Article (66) of the
International Court of Justicestatute and the Court decision
of 19December, 2003.
Can the "Occupying Power" build a wall in the occupied
territories for the sake of protecting settlements in said
territories? 1s it not in contradiction to Articles (49) of the
Fourth Geneva Convention and(85) ofthe First Protocol?" In implementation of the "de facto policy" that is being
implemented by Israel (the Occupying Power),the Israeli Prime
Minister "Sharon" renewed recently his defiance of the
international communityby announcinghis intentionto continue
with his settlement expansion project which hehad launched on
the 4th of June, 2003 inside the Palestinian territories occupied
by his forces since June 5, 1967. However, the Israeli
govemment claims that it is constructing a so called "security
wall" to protect its people from the Palestinian resistance which
is standing ta11againstthe Israeli occupation.
As an expression of the will of the international community,
the United Nations General Assembly in its extraordinary
emergency session no.1 O adopted resolution no. A-RES-ES-
10113 of 21 October, 2003, by which the General Assembly
requested Israelto cease and to abortthe construction of the wall
in the Palestinian territories, including East Jerusalem and its
surroundings. This act is considered a violation of the Truce
Line of 1949, and a violation of the United Nations resolution
11811of 1947. This act is also in contradictionto the rules of the
international laws andconventions.
In implementation of the resolution A-RES-ES-10113of 21
October, 2003, the Secretary-General's report A/ES-101248
concluded that Israel is not in compliance with the demand ofthe GeneralAssemblythat requestsIsrael"to cease and to abort
the construction of the wall in the occupied Palestinian
territories".
The General Assembly requested the Secretary General to
deliver a periodical report to show how far the terms of the
resolution A-RES-ES-10113 are being carried out. The
preliminary report should focus on the compliance with the
terms of the first section of the resolution"we demand Israelto
seize and to abort the construction of the wall inside the
occupiedPalestinianterritories."
Due to Israel's non-compliance withthe Secretary General's
report andbecause of its obstinacyand insistence in continuing
to build the "wall of separation"that is biting intothe occupied
Palestinian territories, Israel prompted the international
community, empowered by the General Assembly resolution
adopted in its emergency exceptional sessionno.10A-RES-ES-
10114,to request the International Court ofJustice to issue a
legalopinionregardingthe followingissue:
"What are the legal consequences arising from the
construction of the wall being built by Israel (the Occupying
Power) in the occupied Palestinian territories,including in and
around East Jerusalem, as described in the report of theSecretary-General, considering the rules and principles of
international law, includingthe Fourth Geneva Conventionof
1949, and the relevant SecurityCouncil and General Assembly
resolutions?"
After looking into the legal consequences resulting from the
'wall'that Israel (the Occupying Power) is building,we would
liketo beginwith the United Nations Charterin letterand spirit,
especially Article (l), section (2), that calls for respecting the
principle of equalrights and self-determination of peoples, and
to take other appropriate measuresto strengthenuniversal peace.
We would like also to start with the fundamentalprinciples
declaredby the InternationalLegislationsof human and peoples
rights, such as the Universal Declarationof Human Rights, the
International Covenant on Civil and Political Rights, The
International Covenant on Economic, Social and Cultural
Rights, and the international agreements aiming ateradicating
al1kinds of racial discrimination whichdescribethe policies of
ethnic isolation and discrimination, as crystal clear crimes
againsthumanity.
Emphasizing that building the "wall of separation" in the
Palestinian occupied territories, will leavecatastrophic effects
on the Palestinianpeople,and it will impose ade factopolicy onthe Palestinian occupied territories, al1of that is against al1the
International lawsand regulations especiallyThe Fourth Geneva
Convention relativeto the protection of civilian personsin time
of war of 12August 1949,andthe Rulesof TheHague of 1907.
Also, it is against al1 the declarations and the international
agreementsrelatedto human rights, theright of peoples to self-
determination,and the rights of theregionsthat do not havethe
privilege of self-governing.It is the duty of the international
community to stand firm to eradicate al1 kinds of racial
discrimination,to eliminate discriminationand consider it as a
crime, and punishthose who committhese crimes.
i There is no legitimacy in confiscatingthe territories and
demolishingproperties
1. Article (47) of the GenevaConvention relative
to the protectionof civilian persons intime of war of
12 August 1949 states that "Protected persons who
are in occupied territoriesshall not be deprived, in
any case or in any manner whatsoever, of the
benefits of the present Conventionby any change
introduced, as the result of the occupation of a
territories,into the institutions orgovemment of the
said territories, nor by any agreement concluded between the authorities of the occupied territories
and the Occupying Power, nor by any annexation by
the latter of the whole or part of the occupied
territories".
According to this Article, military orders and the building of
the so called "security wall" are clear violations of the
fùndamental principles of the International Humanitarian Law
and Human Rights. Israel (the Occupying Power)has trespassed
what the Occupying Power is authorized to do according to the
International Humanitarian Law. It has done so through
confiscating more lands and demolishing more houses for the
sake of building that "wall".
2. Israel (the Occupying Power) claims that
Article (52) of the Rules of The Hague of 1907,gives
Israel the right to confiscate more territories in order
to build the so called "securitywall". But this Article
does not give it the right to confiscate immovable
properties such as pieces of land, buildings.. .etc,
ownedby people who areunder protection.
Article (53) of the Rules of The Hague of 1907, allows an
army of occupation to confiscate movable properties that the
State may use for military operations including arms andsupplies, which proves that Israel (the Occupying Power) does
not have the right to confiscate land and demolish properties, to
build the wall of separation.
Also article (55) of the Rules of The Hague of 1907 states
that the Occupying State should remain as "usufiuctuary" of
public buildings, real estates, forests, and agricultural estates
belonging to the hostile State and it must safeguard and
administer the capital ofthese properties in accordance with the
rules of usufmct. And even when the occupying army declares
that confiscatingand demolishing the properties of the enemy is
part of war requirements; the issue of retaining territories and
movable properties remains the civil responsibility of the
Occupying Power. Furthermore, we have to differentiate
between public properties and private ones in the occupied
territories, such that Article (46) of the same Rules prohibits the
confiscation of private property. Thus the occupying army has
surpassed al1the authorities given to it in accordance with the
International Law. Therefore, the "wall of separation" is
considered illegitimate and Israel (the Occupying Power) has
failed to give any legitimatejustification to the destruction and
the confiscation of territories and properties in the occupied
territories. It is evident that building the "Israeli" wall of
separationrequires confiscating land anddemolishingproperties
in the occupied territories, and that would obviously lead tochanging its structures perrnanently, inaddition to the immense
negative effectson the Palestinians.
ii De-legitimizing the collectivepunishmentof Palestinians
The Israeli Occupying Power claims that there are security
reasons behind building the racial wall of separation, whereas
destroying and confiscating territories aremeasures of collective
punishment, affecting in particularthosepeople whose landsand
properties are detained perrnanently. It is worth noting that the
International Humanitarian Law forbids collective punishment.
Also, Article (53) of the Fourth GenevaConvention statesthat it
is forbidden to demolish any properties in the occupied
territories. Furthermore, demolishing the properties is a
collective punishment that Article (33) of the Fourth Geneva
Convention forbids; and it is a an extra judicial act, and is
considered an infringement on properties and domiciles.
However, this huge destruction of assets that is intentionally
carried out, and which has no military necessities is a mere
violation of Article (147) of theourth Geneva Convention and
thus, it is a war crime. Annexing and confiscating territories is a
crystal clear violation of the general principles of the
international law, which the United Nations Security Council
resolution no. (242), had emphasized. iii The Security Wall is a Form of Racial Discrimination
1-The Israeli so-called"security wall" is one form of
racial discrimination inherent in the racist,
colonialist system imposed on the West Bank and
the Gaza Strip. The International Convention on
the Elimination of al1 Forms of Racial
Discrimination defines this discrimination as a
crime against humanity; and those who establish
such a system are punished by the parties to that
treaty in a special international tribunal.
This definition in its broad sense is covered by the first
protocol of the Geneva Conventions, the rules of procedure of
the International Criminal Court (1998), and the International
Convention on the Elimination of al1 forms of Racial
Discrimination (1966). These conventions and treaties define
racial discrimination as "an institutional system based on racial
discrimination in order to ensure the control and repression of
one ethnic group by another ethnic group."
The elements of this definition apply to the "Israeli" policies
and measures, which include violating the right to life and
persona1 fieedom, deliberate murder, inflicting physical andmental damage, torture, humiliating treatment, arbitrary
detention and the application of measures aimed at the
destruction of the people, totally or partially. They also include
measures preventing people fiom taking part in economic,
political and cultural life,and violatingtheir basic human rights,
such as the right to education, work, return, and fieedom of
expression. They include legislative measures aimed at the
creation of racial discrimination between two peoples,
preventing inter-marriage, while allowing the confiscation of
land and property, exploiting the work force, prosecuting and
punishing individuals who opposethis discrimination.
2- The "Israeli" so-called security wall aims at
dividing the population, discriminating against
Palestinian citizens on an ethnic basis,
hampering their movement through curfews,
closures, and confiscating thousands of acres of
Palestinian land and property,the only sourceof
livelihood for hundreds of Palestinian families.
Furthermore, the people trapped between the security wall
and Israel on the one hand, and the West Bank on the other, are
exclusively Palestinian. This affirms the presence of a racial
motive behind the choice of the location of the wall. The
deliberate choice of the best agricultural Palestinian lands as alocation for its construction creates small"cantons" between the
wall and the West Bank on the one hand, and "Israel" on the
other.Such cantons deprivePalestinian citizensoftheir land and
sources of livelihood. For example, Qulquilia has been
transformed into a besieged cantonto accommodatethe needs of
a small group of illegal Jewish settlers, living on illegally
confiscated Palestinian lands, atthe expense of the fieedom and
lives of Palestinian citizens. An honest observerto the path that
the wall took, and will take, cannot but notice that it passes
through certain areas in a way such as to annex blocks of
settlements in order to protect the illegal settlements in the
occupied Palestinian territories. Consequently, this is a
consolidation of occupation and a violation of dozens of
international legitimacy resolutions, which established the
illegitimacy of settlements in the occupied territories. The
security wall hampers the movement of Palestinians, but does
not affect the movement of Jewish settlers who live in illegal
settlements on the West Bank. Thus, the wall practically
segregatestwo ethnic communities, with devastating effects on
one community,namelythe Palestinians.
The wall of segregation also divides Palestinian families and
groups, and it hinders and prevents their movement,because it
consolidates a special permit systemto controlthe movement of
Palestinian citizens. The projected wall is a unilateral Israeliimposition of boundaries between "Israel" and the future
Palestinian State, which entails serious dangers to the Peace
Process, contradictsthe relevant UnitedNationsresolutions,and
would prejudicethe resultsof negotiations.
3- The wall of segregationdoesnot give any considerationto
the lives, lands and water resources othe Palestinians. Instead,
it reflectsIsrael(the OccupyingPower)desireto confiscateland
and water resources through illegalmeans. The Israeli Supreme
Courthas failedto convincethe Israeligovernmentto adhereto
its obligations accordingto internationallaw. Consequently, the
"Israeli" armyhas a fiee hand to confiscateland through illegal
means, while hundreds ofthousands of Palestinians are being
squeezed, amid international silence.This wall of segregation
has two basic features, namely, squeezingan ethnic community,
and separating itfiom its own water resources. This, in itselfis
racial discrimination, andis in violation of the Fourth Geneva
Conventionandthe "1sraeli"-Palestinianagreements.
4- It should be noted here that accordingto the international
humanitarian lawbased on customs,Israelhas the obligationof
ensuringthe welfareof the WestBank population, accordingto
Article(43) ofthe Rules of TheHagueof 1907concerningland
war. Israel alsohas the obligation of safeguardingthepassageof
emergency medical services, respecting sick people, allowingthe delivery of food and medical supplies, and facilitating
education (Articles 16, 20, 25, 50, 55 and 59 of the Fourth
Geneva Convention). Conventional law prohibits Israel from
making permanent changes that do not benefit the local
population in the West Bank (Article 55 of the Rules of The
Hague, of 1907). The same law also prohibits Israel from
transferring its own civilian population to the occupied
territories (Article49 (6) of the Fourth Geneva Convention).
5- Israel has ratified several human rights treaties that
commit their signatories to the respect and consolidation of the
right of free movement, access to education, health care, work,
and water. These treaties include the International Covenant on
Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rightsand the agreementsonthe
Rights of the Child. In August 2003, the UN Human Rights
Commission foundthat, in the currentconditions,the provisions
of the International Covenant on Civil and Political Rights are
applicable in a manner favorable to the population of the
occupied territories in relation to al1forms of conduct practiced
by Israel (the Occupying Power) or its agents in those
territories. This conduct prejudices and adversely affects the
enjoyrnent of the rights provided for in the said Convention.
And it cornes within the framework of the responsibility of"Israel", according to the principles of the general international
law.
iv The Israeli claims concerning the racial wall of
separation:
1. "Israel" (the Occupying Power) claims that the Palestinian
interests are served by building the wall of separation,
because the army will not resort to reoccupation, nor to
installing check points, nor closures, nor any othermean of
collective punishments and violationof human rights in order
to safeguard the security of "Israel" (the Occupying Power).
The same argument has been used in the past to justify the
periphrastic roads in the West Bank and Gaza Strip that are
built on illegallyconfiscated Palestinian territories. Thus, on
the basis of this vain and illegal argument,the Israeli settlers
will have security exclusively through the roads dedicated to
them (which constitutes clear racial discrimination, for the
Palestinians are deprivedofusing these roads).
2. Building racial segregationroads dedicated exclusivelyto the
"Israelis", and contrary to the Israeli claims, did not
absolutely reduce the occupying military Israeli existencein
the West Bank or Gaza Strip or East Jerusalem. On the
contrary, the forces were increased and new equipments were installed on the Palestinian confiscated territories after the
year 120001.
It was quite clear, right fiom the beginning that the racial wall
of separation will not reduce check points, curfews, arbitrary
firing against civilians, closures, and that al1these practices will
continue because they were originally imposed as an "Israeli"
principle to intimidate and humiliate Palestinians, and not
simply to accommodate "Israeli" concerns towards infiltration.
This is why in spite of those illegalmeasures,the "Israeli" army
is behaving in an increasingly irresponsibleway without being
held accountable and enjoying immunity, and is supported by
the "Israeli" government, and the carelessness of many
international communities. Closures, curfews,and the arbitrary
firing against civilians will continue while "Israel" (the
Occupying Power) refuses to dismantle the illegal Israeli
settlementswithinthe racial wallof separation.
3. "Israel" (the Occupying Power) claims that the wall is
necessary for its security, but it is quite clear that the wall is
being used as a pretext for illegal confiscation of more
territories. Moreover, even if any real security concerns for
building the wall of separation were presented, Israel is
obligedto act within the internationallaw. Thejustifications
for buildingthe wall of separationto separate the WestBank
fiom "Israel" (the Occupying Power) could be compared to
the security justifications used to justify other harsh andillegal measures such as complete closures.In March 2002
"John du Gard" the special UnitedNations rapporteurfor the
Palestinian occupied territories, and in relation to the
restrictionson movementandtransportation said " this wall is
not to avoid the securityrisks throughthe checkpoints.. . but
rather to humiliate the Palestinians and press them to stop
resisting the Israeli occupation". In September 2002, he
added: "Even though there is no doubt that "Israel" has
security concerns ..It is necessary to ask if the measures
taken by "Israel" (the Occupying Power), especially those
related to the curfews and closures, had always served
security purposes. They often appear as inproportionate and
very far from the security purposes, which leadsus to ask
whether they are, to some extent, used to punish, humiliate,
and subordinate the Palestinian people. The demands of
"Israel"(the OccupyingPower) should be balancedwith the
humanitarianlegitimateneedsofthe Palestinian people.From
Mr. Du Gards' pointof view, it seems that there is no such
balance. Human rights have been sacrificed for the sake of
security. This in turn will lead to more threats to Israeli
security: When desperation is stubbomly transformed to
suicide bombings and other acts of violence against the
Israelis. "Israel" (the Occupying Power) claims that article 52 of the
rules of The Hague of 1907 gives it the right to confiscate
territories forthe sake of building a securitywall, but this article
does not give it the right to confiscate immovable properties
such as the territories owned by legally protected perçons.
Article 53 of the rules of The Hague states the occupying army
is allowed to take possession of cash, funds, and properties that
the state may use in military operations, which includes arms
and ammunition. Even when the occupying army declares that
confiscating and destroying the properties of the enemy is a
requirement of war; safeguarding the territories and immovable
properties remainsthe civil responsibilityofthe occupying state.
Article (55) of the Rules of The Hague of 1907 states that the
Occupying State should remain as "usufnictuary" of public
buildings, real estates, forests, and agriculturalestates belonging
to the hostile State and it must safeguard and administer the
capital of these properties in accordance with the rules of
usufnict. Furthermore, we have to differentiate between public
properties and private ones in the occupied territories, such that
Article (46) of the same Rules prohibits the confiscation of
private property. Thus the occupying army has surpassed al1the
authorities given to it in accordance with the International Law.
It has also violated the 1967 borders of the future Palestinian
State which are in conformity with the Security Council
resolutions 12421(1967) and /338/ (1973). However, in theSecretary General's report that was submitted in compliance
with the General Assembly A-RES-ES-10113dated 21 October
2003 regarding Jerusalem:"The current barrier and the foreseen
direction around Jerusalem exceedsthe green line, and in some
cases it exceeds the Eastern borders of Jerusalem which Israel
has annexed and therefore, this is a clear breach of resolution
14781(1980) which considers that Israel's annexationof East
Jerusalem null and void. Moreover,the relevant United Nations
resolutions emphasize that the acts of Israel (the Occupying
Power) to change the status of East Jerusalem and its
demographic structure are have no legal validity, and are null
and void". Consequently, the racial wall of separation is
considered to be illegal and should be abolished. "Israel" (the
Occupying Power) has failed in justifying the destruction and
confiscation of territories and properties in the occupied
territories. Building the "Israeli" wall of separation requires
confiscating land and demolishing properties in the occupied
territories, and that would obviously lead to changing its
structures permanently, in addition to the immense negative
effects onthe Palestinians.
v. The limit of using the pretext of emergency means to
justify building the wall of separation:
Necessity, in general, is a contradiction between two legal
interests; one is sacrificed forthe sake of upholding the other. Inthe framework of the international law, it applies if the state in
question is an existing or would be which exposes its existence,
i.e. its or identity or independence to danger. This danger should
not be possible to remove unless by violating the rights that are
protected by the international law.
There is no doubt that the idea of emergency measures
constitutes a great danger to the stability of the international
relations, because if every country is allowed to use it to justi@
the violation of its international commitments.i.e. circumstances
that threaten its right in existence therefore to protect itself and
its own interests, then this will lead to the acknowledgement of
every country not to comply with the mles of the international
law and to attribute its violation to protecting interests. This will
in turn lead to more international chaos. Every country will try
to pursue its interests even if it may harm the interests of other
countries on the basis that the emergencymeasures necessitates
this violation.
Thus it is quite logical not to use the state of emergency
measures as a justification to commit international crimes, and
toconsider the use of arms, using this justification a deliberate
aggression. The state of emergency is something strange to the
principles of the international law and does not harmonize with
its mles and ternis.The following are the basis for refùsing the pretext of
emergency measuresthat may be used by states as ajustification
in the internationallaw:
A.International law does not recognize the basis and
rules that required the existence of the case of
emergency in the framework of the domestic law:
because the first essential idea which entails the
existenceof the case of emergencyin the internal law
is that when law was made to organize the human
conduct, could not require bravery and sacrifice
when their vital interests contradict withthe interests
of others because man's inclination to protect his
interests- when endangered - is a natural instinctive
based on survival drive which is tolerated by law.
This generalization is not applicable for states as
entities lackingthe natural instincts of individuals.
B.In addition to this, what entails the existence of the
rule of necessity in the internal lawis the principle of
the upper interest, where a legally-protected interest
is sacrificed for the sake of other more important
interest, that is because the domestic is graduate in
protecting the legal interests. This idea is not
applicable in the international relations, because
international law protects al1interests and calls for
peacefùl coexistence among peoples and countries, while if the idea of upper interest is applied, then it
means to shed the rights of peaceful countries for the
benefit of the aggressive ones. Moreover, taking this
rule may lead to shed the rules of the international
law themselves.
C.Moreover. what justifies not pl the rule of
necessity is the fear that a country may exploit the
rule of emergencyto practice agression on the other
countries. In the absence of an internationaljudicial
authoritythat could get sure of the availability of the
urgent case conditions, a state may interpret the
urgent case conditions in a way that harmonizes with
its interests, which will lead to chaos and confusion
in the international community.
D.Finally, taking the rule of emergency leads to a
contradictory stance, for when we admit the right of
the state to practice an aggressiveact against another
innocent state because of emergency, we have to
acknowledge first that this state has the right to
respondto the aggressionthat occurred against it as it
legally has the right to defend. Here we have a
contradiction where we allow the aggression as an
emergency state then we allowthe reaction to it - as
a legal defense - moreover, this will lead to a war betweenthe countries, which is abad result that the
international lawcannot aim at inany way.
This issue wasraised in fiont ofthe internationallaw
committeeon many occasions,hence the third article
of draft of the countries' rights and duties
announcements presented to the international law
academy in 1970 states to refuse the pretext of the
existence of emergency, stating: (no state is to do
anythingagainst another stateorthreaten it, evenif it
wereto rescuethe samecountrythat is doing it).
Thenthe issuewasraisedin fiont ofthe international
law committee in theyear1980 when adopting the
draft articles related to the states responsibilities,
hencethe 33rd article ofthe draft states:
1. No state is allowed to have the pretext of
emergency as a justification to negate the non
legalityof an actoneby itthat doesnot harmonize
with its international commitments but in two
cases:
a) Ifthis act is the onlyansto Savea majorinterest
ofthe statethat has the commitment.
b) Ifthis act doesnot harmfullyaffect a majorinterest
ofthe statethathasthe commitment.2. Any way, no state is allowedto have the pretext of
emergency as a justification to negate the non
legalit:
a. If the international commitment that does not
harrnonize with the state's act streams fiom an
absolute mle of the general mles of the
international law or:
b. If the international commitment that does not
harrnonize with the state's act is not stated in a
treaty that clearly or implicitly negate the
possibility of having the case of emergency as a
pretext forthat commitmentor:
c. If the concerned state has participated in the
occurrence ofthe urgent case.
It seems, through outthe text of this article, that the
international law committee
is convinced by the
opinion claimingthe necessity of adopting the stateof
emergency inthe international law.
What we mind in the framework of this research is to
refer that the committee has absolutelyrefùsed relying
on the existence of the urgent case to justi& any
aggression or international crime similar to what
Israel commits at present by building thewall of
separation. Thisis to be understood in two different
places in the article/33/: The first: article llb: conditions the trueness of the
acknowledgment of the existence of the emergency
case and the acceptance of itsjustification th-t the
illega- act that the state has committed under the
pretext of emergency does not severelyand harmfùlly
affects a major interest of the state that has been
exposed to the illegal act. This does not apply here
in any way in the case of "Israel" (the Occupying
Power) because the affected and touched interest is
the sovereignty and independence of the targeted
state, which is one of the most important interests
that countries aim at maintaining, and are very
affected by the mere touching of them.
The second: is what the second article referred to
when excepting three cases in which the state could
not have the state of emergencyas a pretext. The first
of these cases refers that it is not allowed to have the
state of emergency as a pretext to violate a clear rule
of the international law. These mles are not to be
disobeyedforany reason.Consequently, we Sayhere
that catching the others' territories by force,
settling, imposing the public punishment poliey
and adopting racial separation policy are on top of
clear internationalules that could not be violated
or disobeyed with the pretext of the existence.
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Memorandum presented by the Syrian Arab Republic