CourinternatideJustice
EnregistauGreffe le
internationalCourtof3J0sjAh,ZuV /r21
Filedinthe Regi:tryon
Request by the United Nations General Assembly
for an Advisory Opinion on the Question of
What are the Legal Consequences Arising
from the Construction for the Wall being Built by Israel,
Occupying Power,in the Occupied Palestine Territory, including
in and around EastJerusalem
Written Statement Submitted
by the Government of the Republic of lndonesia
to the International Court of Justice.
29 January2004 DEPARTMENT OF FOREIGN APPAIRS
REPUDUC OF INDON~BIA
Jakarta, 29 January 2004
The Registrar
International Court of Justice
Peace Palace
Ttie. Hague
THE NETI-iERLANDS
Sir,
In accordance with the Court's Order of 19 Decernber 2003 and Artlclo 613,
paragraph 2, of the Statute of the Court, 1have the honor to transmit to you the
oncIossd written staternent of the Goverriment of the Repubiic of lndonesia on
the rsquest for Advisory Opinion on the question of what are the legal
consequoncss arising from the construction for the wqll being built by israc! in
the Occupiad Palestine lerritory, including East Jerussalem.
Please Accept, Sir, the assurances ofmy Iilghsst consideration-
Arif Havas Osgroseno
Director for Treaties on Political, Sccurity
and Territorial Affairs WRITTEN STATEMENT BY
THE GOVERNMENT OF THE REPUBLIC OF INDONESIA ON
THE REQUEST FOR ADVISORY OPINION ON THE QUESTION OF
WHAT ARE THE LEGAL CONSEQUENCES ARlSlNG
FROM THE CONSTRUCTION FOR THE WALL BElNG BUlLT BY ISRAEL,
OCCUPYING POWER, IN THE OCCUPIED PALESTINETERRITORY ,INCLUDING
IN AND AROUND EAST JERUSALEM
With reference to an urgent request for an advisory opinion submitted by the United
Nations General Assembly (UNGA Resolution A/RESlES-10114 of 8 December 2003)
on the question of what are thelegal consequences arising from the construction of the
Wall being built by lsrael in the Occupied Palestine Territory, including East Jerusalem,
The Government of the Republic of lndonesia has been invited by the lnternational
Court of Justice to furnish information on al1aspects raised by the question.
In response to the invitation, the Government of the Republic of lndonesia has the honor
to submit the following information:
Power of the Court to Render Its Advisory Opinion on the Question
1. lsrael argues that the United Nations General Assembly Resolution A / RES/ ES-
10114 requesting the lnternational Court of Justice for an advisory opinion on the
question of what are the legal consequences arising from the construction of the Wall
being built by lsrael in the Occupied Palestine Territory, including East Jerusalem, is a
politically biased text.' It also argued that the question is so highly political that the Court
has no discretion on the matter. Therefore, lsrael is very likely to appeal to the Court to
decline to render the opinion requested by the UN General Assembly Resolution by
exercising its discretionary power as provided by Article 65 Paragraph 1 of the Statute of
the lnternational Court of Justice.
1
Statement by Ambassador Dan Gillerman, Permanent Representative of lsrael to the UN General
Assembly Tenth Emergencypeciall Session, New York, 8 December 2003.2. The Government of the Republic of lndonesia reiterates that the Court has been
constantly mindful of its responsibilities as the principal organ of the United ~ations'.
Furthermore, in its Advisory Opinion of 30 March 1950, the Court made it clear that, as
an organ of the United Nations, its answer to a request for an advisory opinion
"represents" its participation in the activities of the Organization, and, in principle, should
not be reje~ted.~Moreover, in its Advisory Opinion of 20 July 1962, citing its Advisory
Opinion of 23 October 1956, the Court stressed that "only compelling reasons should
lead it to refuse to give a requested advisory ~pinion".~For that reason, the Court, once
it has established its competence, has never refused to act upon a request for advisory
~pinion.~
3. The Government of the Republic of lndonesia also finds no compelling reasons
preventing the Court to give the advisory opinion requested by the United Nations
General Assembly. It is also important to affirm that, although there are some political
aspects of the request of advisory opinion on legal consequences arising from the
construction of the Wall, it does not suffice to deprive it of its character as a legal
question. The Government of Republic of lndonesia considers that the question put to
the Court by the General Assembly is indeed a legal one, since the Court is asked to
rule on the compatibility of the construction of the wall being built by lsrael in the
Occupied Palestine Territory, including East Jerusalem with the relevant principles and
2 Article 92 the United Nations Charter
See lnterpretation of Peace Treaties with Bulgaria, Hungary and Rornania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 71; see also Reservation to the Convention on the Prevention and
Punishrnent of the Crime of Genocide, Advisory Opinion, I.C.J. Report 1951, p. 19; Judgrnent of the
Administrative Tribunal of theL0 upon Cornplaint Made against Unesco, Advisory Opinion, I.C.JReports
1956 p. 86; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion,1.C.J Reports 1962, p. 155; and Applicability of the Article VI, Section 22, of the Convention on
the Privileges and lrnmunities of the United Nations,Advisory Opinions, 1.C.JReports 1989, p. 189.
4
Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J.
Report 1962, p. 155. See also Applicability of Article VI Section 22, of the Convention on the Privileges
Irnrnunities of the United Nations, Advisory Opinion,.JReports 1989, pp. 190- 191, paragraph 37;
Legality of threat or Use of Nuclear Weapons, Advisory Opinion, 1.C.J Reports 1996 (l), p. 235,
aragraph 14.
See legalitO the Threat or Use of Nuclear Weapons, Advisory Opinions, 1.C.JReports 1996 (l), p. 235,
paragraph 14.I rules of international ~aw.~Therefore, in line with Advisory Opinion on Legality of the
Threat or Use of Nuclear weapons7, the Government of the Republic of lndonesia
1
maintains that political aspects of the motives which may be said to have inspired the
request of advisory opinion on this particular issue and the political implications that the
opinion given might have are of no relevance to the Court in exercising its discretionary
power on this matter.
Absence of Legal Justification for Constructingthe Wall
4. With regard to legal justification to build the Wall, lsrael defends its action by
asserting its legitimate right to protect itself from armed attacks. lsrael also believes that
the construction of the Wall as a defensive measure is consistent with Article 51 of the
Charter of the United Nations, as well as its inherent right to self-defense and Security
Council Resolutions 1368 (2001) and 1373 (2001). It also argues that the Wall is
temporary and has no political significance. Furthermore, it argues that the construction
of the Wall does not prejudge subsequent negotiationsover the borders of a Palestinian
state, since it is not intendedto change the legal status of the territory.
5. On the issue of self defence, the Government of the Republic of lndonesia
1
,believes that security measures must be taken in accordance with internationally
1
recognized legal norrns and principles. In this regard,the Government of the Republic of
lndonesia underscores that the entitlement to resort to self defence is subject to certain
constraints which are inherent in the very concept of self defence itself. As the Court
stated in the case concerning Military and Paramilitary Activifies in and againsf
~icara~ua~: "there is specific rule whereby self defence would warrant only measures
proportional to the armed attack and necessary to respond it, a rule well established in
8See legalityO the Threat or Use of NuclearWeapons, Advisory Opinions, 1.C.JReports 1996 (l), p. 234,
paragraph 13.
7,
See legality Othe Threat or Use of Nuclear Weapons, Advisory Opinions, 1.C.JReports 1996 (l), p. 234,
flaragraph 13.
1
8Nicaragua v.United States of America, I.C.J. Reports 1986, p.94, paragraph 176customary international law". The requirement of necessity and proportionality means
that self defence must not be retaliatory or punitive, the aim should be to halt and repel
attacks. Hence, the construction of the Wall could only be justified, if it meets the
requirement of necessityand proportionality.
6. The Government of the Republic of lndonesia asserts that the measure of
constructing the Wall clearly and without any doubt fails to meet requirement of
necessity. It is unconceivable that the Wall can be considered as necessity, when lsraeli
forces already exercise military control over each and every large Palestine town
through checkpoints, curfews and closures. Doubt have also been expressed as to
whether the Wall be effective, and thus bringing the fundamental question whether it is
"neces~ar~".~ It is clear that the Wall is ineffective for the purpose for which lsrael
claims, i.e., halting attacks against it as a self defence. Rather to serve its security
interest, the construction of the Wall is manifestly intendedto createfacts on the ground
that prevents any possibility of Palestinian territorial contiguity. It constitutes unlawful
annexation in the language of Security Council resolutions 478 (1980) and 497(1981).
Moreover, the construction of the Wall is also directed to further racist and apartheid
policy, since the Wall divides populations on the basis of race and ethnicity. In fact, what
emerges is a picture of a systematic lsraeli policy to diminish the capacity and potential
of the Palestinian people to achieve self-determination by isolating the Occupied
Palestine Territory, including East Jerusalem, from each other and the outside world,
paralyzing their economies and augmenting their dependency on Israel. Furthermore,
Israel's claim that the Wall is designed entirely as a security measures with no intention
to alter political boundaries is simply unsupported by the facts on the ground.
7. The Government of the Republic of lndonesia maintains that the construction of
the Wall is disproportionate and excessive. The collateral damage has become the rule
rather than the exception of the actions taken by Israel. The Wall has serious
Report of the Special Rapporteur of the Commission of the Commission on Human Rights, John Dugard,
on the situation ofman rights in the Palestinian Territories occupied by Israel since 1967, submitted in
accordance with Commission Resolution 199312 A, Commission on Human Rights, Sixtieth session,
E/CN.4/200416, 8 September 2003, p. 7. paragraph. 8. implications as it violates two of the most fundamental principles of international law,
namely: the prohibition of the forcible acquisition of territory and the rights to self-
determination. Furthermore, The Wall doeç not follow the Green line, that is the 1967
boundary between lsrael and Palestine which is generally accepted as the border
between the two entities. Instead, if follows a route that encroaches very substantial
parts of Palestine within Israel. At present, the Wall intrudes up to seven kilometers
within Palestine, with plans to penetrate deeper into Palestinian territory. It also
constitutes a wide array of serious violations of human rights and international law. The
harms that have been inflicted include. but not limitedto:
Extensive destruction of Palestinian homes and other properties which is
contrary to theourth Geneva Convention;
- lnfringement on the freedom of movement contrary to the International
Covenant on Civil and Political Rights, and in violation of obligations of the
Fourth Geneva Convention;
- lnfringement on the rights to education, to work, and to adequate standard
of living and health care contrary to the Convention on the Rights of the
Child and the lnternational Covenant on Economic, Social and Cultural
Rights and violation of the obligations of the Fourth Geneva Convention;
and
- Violation of the prohibition against arbitrary interference of home, contrary
to the lnternational Covenant on Economic, Social and Cultural Rights,
and the freedom to choose one's residence, contrary to the lnternational
Covenant on Civil and Political Rights and violation of the protections
provided in theourth Geneva Convention as a result of the permit system
established in the Closed Area.
8. The Government of the Republic of lndonesia argues that Israel's claim on the
'emporary nature of the Wall is dubious. Israel points to the fact that the land in
uestion has been requisitioned by military order only until 31 December 2005.
4
lowever, nothing prevents the orders themselves from being renewed without limitation1 in the future. It would seem difficult for lsrael to justify the enormous cost of the Wall if it
I
were to be dismantled in 2005 or shortly thereafter.
9. Israel's claim that the Wall has no political significance should not be sustained.
In line with the Report of the Secretary General prepared pursuant to General Assembly
Resolution ES-10113 (AIES-101248), lndonesia observes that the scope of construction
and the amount of occupied West Bank land that is either being requisitioned for its
route or that will end up between the Wall and the Green Line are of serious concerns
and have political implications for the future. It could damage the longer-term prospect
for peace by making the efforts to establish an independent, viable, and contiguous
Palestinian State unreasonably difficult, if not ,impossible.
APPLlCABlLlTY OF INTERNATIONAL HUMANITARIAN LAW IN THE OCCUPIED
PALESTINE TERRITORY. INCLUDING EASTJERUSALEM
10. Injustifying its flagrant systematic violations of fundamental general principles of
humanitarian law, lsrael has taken position that, since Article 2 of the Fourth Geneva
Convention states that the Convention applies only to occupation of the territory of the
High Contracting Party, and since the West Bank and East Jerusalem are not within the
recognized territory of any High Contracting Party, lsrael is not legally bound to the
apply the Convention to those places. It further argues that the annexation of the West
Bank and Gaza Strip by Jordan and Egypt was never internationally recognized, so
there was no "legitimate ousted sovereign".1° Hence, lsrael further argues that it
possesses only administrative responsibilities that Jordan and Egypt held, and that
therefore the Fourth Geneva Convention does not apply. Moreover, lsrael holds its
occupation of the West Bank and the Gaza Strip is sui generis since it did not gain
control of these territories in an aggressive war, but as a result of defensive actions, and
therefore it is not subject to Occupiers Law.
10 See paragraph 3 of the Surnmary legal position of the Government of lsrael, Annex 1 of Report of the
Secretary-General prepared pursuant to General Assembly resolution ES-10113 @/ES-101248, 24
Novernber 2003)11. The Government of the Republic of Indonesia underlines the fact that a High
Contracting Party to the Fourth Geneva Convention has legal obligations to respect and
to ensure respect for the provisions of the Fourth Geneva Convention in al1
circumstances." It also reasserts the applicationof the Fourth Geneva Convention to al1
cases of partial or total occupation of the territory of a High Contracting Party, even if
the said occupation meets with no armed resistance.12Consistent with the provisions of
the United Nation Security Council Resolution 681 (1990) and the United Nations
General Assembly Resolution 56 1 60, the Government of the Republic of Indonesia
considers that lsrael is under legal obligation to apply the Fourth Geneva Convention to
the Occupied Palestine Territory, including East Jerusalem. Since the Convention is not
concerned with the sovereignty of parties to conflict, it must apply to al1cases in which
territory is occupied in the course of an armed conflict, irrespective of the status of the
territory. Moreover, given the purposes and objectives of the Fourth Geneva Convention
are to protect civilian inhabitants of territory which comes under foreign control, the
Convention does not concern itself with the nature of the force which brought about the
occupation. Thus, there is nothing in the provisions of the Fourth Geneva Convention
which distinguishes between the occupation of territory through defensive or aggressive
action. For that reason, the claim of non-applicabilityof the Fourth Geneva Convention
has been categorically rejected by the lnternationalCommittee of the Red Cross (ICRC)
and High Contracting Parties to the Geneva Conventions.
APPLlCABlLlTY OF INTERNATIONAL HUMAN RIGHTS LAW IN THE OCCUPIED
PALESTINETERRITORY, INCLUDING EAST JERUSALEM.
12. lsrael contends that neither the 1966 lnternational Covenant on Civil and Political
Rights (ICCPR) nor the 1966 lnternational Covenant on Economic, Social, and Cultural
Rights (ICESCR) is applicable to the Occupied Palestine Territory, including East
11
Article 1of the Fourth Geneva Convention.
12
Article 2 of the Fourth Geneva Convention.l
Jerusalem, despite it has ratified both treaties. It asserts that humanitarian law is the
,
i protection granted in a conflict situation such as the one in the West Bank and Gaza
1
Strip, whereas human rights treaties were intended for the protection from their own in
times of peace.13 lsrael also maintains that human rights law is concerned only with
state's treatment of its own national within its borders, and not its treatment of aliens.
1'3. Clearly stated in ifs Advisory Opinion on Legality of the Threaf or Use of Nuclear
Weapons, the Court denied the view of lsrael that human rights law should not be
applied in a conflict situation. The Court observed that the protection of the International
Covenant of Civil and Political Rights does not cease in times of war. 14 Human Rights
Committee also emphasized that the applicability of rules of human rights law does not
by itself impede the application of the Convention or the accountability of the State
under Article 2 paragraph 1 for actions of its authorities. It was the view that the
Convention must be held applicable to the Occupied Palestine Territory, including East
Jerusalem, where lsrael exercises effective control.15This view has also been affirmed
by international community that State Parties are obliged to apply human rights
conventions to al1 persons under their control, regardless of sovereignty issues.
Therefore, as a State Party to the Convention, lsrael has legal duties to ensure the
protection of human rights in the Occupied Palestine Territory, including East
Jerusalem.
In view of the afore-mentioned legal facts, the Government of the Republic of lndonesia
has the honor to submit that the Court is of the opinion:
13
See paragraph 4 of the Summary legal position of the Government of lsrael, Annex 1 of Report of the
Secretary-General prepared pursuant to General Assembly resolution ES-10113 (AIES-101248, 24
November 2003)
14
See legalitO the Threat or Use of Nuclear Weapons, Advisory Opinions, 1.C.JReports 1996 (l), p. 239,
paragraph25
15 Consideration of Report Submitted by State Parties Under Article 40 of the Covenant, Concluding
observation of the Human Rights Committee: lsrael, Human Rights Committee, Sixty-third session18
fiugust 1998, CCPRlCl79lAdd 93 paragraph 10.1. That the construction of the Wall by lsrael in the Occupied Palestine Territory,
including East Jerusalem, departing from the armistice line of 1949 is illegal under
relevant noms and principlesof international law and must be ceased and reversed.
2. That Israel is under legal obligationsto restore land and private properties forcibly
seized for the construction of the Wall, to pay full compensation, to annul al1measures
enacted regarding the Wall, to cease restriction on freedom of movement in the
Occupied Palestine Territory, including East Jerusalem.
3. That lsrael is under obligations to fully and effectively respect the Fourth Geneva
Convention as well as Additional Protocol 1to the Geneva Conventions to the Occupied
~alestine Territory, including East Jerusalem.
4. That al1 norms and principles as provided by international human rights
conventions shall be respected in the Occupied Palestine Territory, including East
Jerusalem, and therefore Israel is under obligations to stop its grave breaches of
international human rights law, and to bring al1 the perpetrators of human rights
atrocities to justice.
5. That lsrael is under obligations to CO-operate with international humanitarian
organization, including International Committee of the Red Cross and the UN Human
Rights Committees.
6. That the United Nations Security Council should consider flagrant and systematic
violation of international law norm and principles by Israel, particularly the international
humanitarian law, and take al1necessary measures to put an end these violations.
7. That Members States of the United Nations are under obligations to recognize
the illegality of the construction of the Wall. They are also under obligations not to
recognize lsrael as sovereign over any areas of Occupied Palestine, including EastJerusalem, not to recognize any other change in the status of the territories Occupied by
Israel, not to take any measures supporting or facilitating the unlawful actions by Israel.
\
Written Statement submitted by the Government of the Republic of Indonesia