Memorandum presented by the Syrian Arab Republic

Document Number
1567
Document Type
Date of the Document
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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.

O kJ2
tl? Al @Q&&
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Memorandum presented by the Syrian Arab Republic

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