L EGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL
IN THE O CCUPIED P ALESTINIAN TERRITORY
(R EQUEST FOR ADVISORY OPINION )
Written statement addressed to the International Court of Justice
by the Swiss Confederation
pursuant to the Order of the Court of 19 December 2003
[Translation]
1. On 8 December 2003 the United Na tions General Assembly adopted
resolution A/RES/ES-10/14 (A/ES-10/L.16) by which it decided, in accordance with Article 96 of
the Charter of the United Nations and pursuant to Ar ticle 65 of the Statute of the Court, to request
the International Court of Justice to urgently render an advisory opinion on the following question:
“What are the legal consequences arising from the construction of the wall
being built by Israel, the occupying Power, in the Occupied Palestinian Territory,
including in and around East Jerusalem , as described in the report of the
Secretary-General, considering the rules and principles of international law, including
the Fourth Geneva Convention of 1949 a nd relevant Security Council and General
Assembly resolutions?”
2. By an Order of 19 December 2003, the Intern ational Court of Justice (“Court”) decided:
“that the United Nations and its Member States are considered likely, in accordance with
Article 66, paragraph 2, of the Statute, to be able to furnish information on all aspects raised by the
question submitted to the Court for advisory opinion”.
3. The Court fixed 30 January 2004 as the time-limit for submission of written statements.
4. Switzerland wishes to take advantage of this possibility and submits the following
observations to the Court within the time-limit and in due form.
I. Preliminary observations
(a) Brief recapitulation of Switzerland’s position
1
5. Switzerland has stated its position on the legality of the barrier on a number of occasions.
At the tenth emergency special session, it voted in favour of General Assembly
resolutionES-10/13 (A/RES/ES-10/13) concerning the “illegal Israeli actions in Occupied East
Jerusalem and the rest of the Occupied Palestinia n Territory”; this resolution was adopted by the
General Assembly, on 21 October 2003, by 144 votes to 4 with 12 abstentions. In paragraph 1 of
the resolution, the General Assembly “ [d]emands that Israel stop and reverse the construction of
the wall in the Occupied Palestinian Territory, including in and around Jerusalem, which is in
departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of
international law”.
1Switzerland is aware of the current discussion acorrect term for the structure in question. For the
purposes of this communication, Switzerla nd will use the term “barrier” for the reasons set forth in the report of the
Secretary-General of 24 November 2003 prepared pursuant to General Assembly resolution ES-10/13. - 2 -
6. Switzerland fully supports this demand. On 2 December 2003 it explained its position in
greater detail in a statement to the General Assembly by its Permanent Representative to the United
Nations in New York . 2
7. However, in the vote on resolution A/RES/ES-10/14, which is the source of the request for
an advisory opinion, Switzerland decided to abstai n, considering it inappropriate in the current
circumstances to bring before a judicial authorit y a question in respect of which highly political
implications predominate.
8. The resolution was adopted by the General Assembly, on 8 December 2003, by 90 votes
to 8 with 70 abstentions. The matter has therefor e been referred to the Court. In Switzerland’s
view, the present situation is thus different from that prevailing during the political debate in the
General Assembly.
9. Switzerland, which attaches very great impor tance to public international law and judicial
settlement procedures, wishes to contribute, in wh atever way it can, to the response to questions
submitted to the Court. The Swiss position is ba sed, in particular, on respect for international
humanitarian and human rights law. The Court has the opportunity for the first time to rule on their
applicability in occupied territories. Its conclu sions will therefore set a precedent, beyond the
context of the present case, for the status of occupation in general. Switzerland is aware that the
Court’s advisory opinion will constitute only one part, albeit an important one, of a process that has
long occupied the attention of both the Genera l Assembly and the Security Council and will
continue to do so in the future. Switzerland hop es that the Court’s advisory opinion will guide the
General Assembly and the Security Council in th eir action on the matter and will enhance the role
of the United Nations in the peace process.
(b) Competence of the Court
10. Pursuant to Article 65, paragraph 1, of its Statute, the Court may give an advisory
opinion on any legal question at the request of whatever body may be authorized by or in
accordance with the Charter of the United Nations to make such a request. The request by the
General Assembly contained in resolution ES-10/14 was made under Article 96, paragraph 1, of the
Charter of the United Nations, pursuant to wh ich the General Assembly may request the
International Court of Justice to give an advisory opinion on any legal question.
2
On that occasion, after reviewing the obligations and responsibilities of the Pales tinian Authority, Switzerland
stated:
“Israeli actions in violation of international lincluding extrajudicial executions, the building of a
separation wall, the demolition of houses and the expanson of settlements, only increase the distress of the
Palestinians, who are already facing a disastrous economic situation.”
And further on:
“Israel undoubtedly has an inalienable right to figterrorism. However, the disproportionate use of
armed force only worsens the vicious cycle of violence.As for the construction of the separation wall, this
structure gravely jeopardizes the vision of two States livi ng side by side in peace. The wall, which has been
constructed beyond the Green Line, encr oaches considerably on the territories occupied in 1967 and paves the
way for confiscations that are contrary to internatinal humanitarian law, notably to the Fourth Geneva
Convention, and to the agreements si gned between the Israelis and Palestin ians. That obstacle to the peace
process must be dismantled. It is contrary to the road map.”
(General Assembly, fifty-eighth session, agenda item 37, The situation in the Middle East , statement made on
2 December 2003 by H.E. Mr. Jenö C.A. Staehelin, Permanent Representative of Switzerland to the United Nations.) - 3 -
11. The question submitted by the General Assemb ly is formulated in legal terms and raises
an issue of international law, that of the “leg al” consequences arising from the construction of the
wall by Israel. The fact that this question also has political aspects does not deprive it of its legal
3
character . Likewise, the contingency that there may be factual issues underlying the question
posed does not alter its character as a “legal question” as envisaged in Article 96 of the Charter . 4
12. In Switzerland’s opinion, the Court is competent to respond to the request.
(c) Propriety of the exercise of competence
13. Article 65, paragraph 1, of the Statute stipulates that: “The Court may give an advisory
opinion . . .” (emphasis added). It follows that the Court has discretionary power to decide whether
or not it wishes to give the advisory opinion requested. It has always been aware of its
responsibilities in this regard as the “principal judicial organ of the United Nations” (Charter,
Article 92). It has stated the following: “The Cour t’s Opinion is given not to the States, but to the
organ which is entitled to request it; the reply of th e Court, itself an ‘organ of the United Nations’,
represents its participation in the activities of th e Organization, and, in principle, should not be
refused.” ( Interpretation of Peace Treaties with Bul garia, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950 , p. 71; see also Reservations to the Convention on the
Prevention and Punishment of the Crime of Genoc ide, Advisory Opinion, I.C.J. Reports 1951 ,
p. 19; Judgments of the Administrative Tribunal of the ILO upon Complaints Made against
Unesco, Advisory Opinion, I.C.J. Reports 1956 , p. 86; Certain Expenses of the United Nations
(Article 17, paragraph 2, of the Charter) , Advisory Opinion, I.C.J. Reports 1962 , p. 155; and
Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the
United Nations, Advisory Opinion, I.C.J. Reports 1989, p. 189.) 5
3
In the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons , the Court confirmed its
practice in this regard. In paragraph 13 of the Opinion it states:
“The fact that this question also has political aspects, as, in the nature of things, is the case with so many
questions which arise in international life, does not suffice to deprive it of its character as a ‘legal question’ and to
‘deprive the Court of a competence expressly conferred on it by its Statute’ (Application for Review of Judgement
No. 158 of the United Nations Administrative Tr ibunal, Advisory Opinion, I.C.J. Reports 1973, p. 172, para. 14).
Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to
discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with
regard to the obligations imposed upon them by international law (cf. Conditions of Admission of a State to
Membership in the United Nations (Article 4 of C harter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948 ,
pp. 61-62; Competence of the General Assembly for the Admiss ion of a State to the United Nations, Advisory
Opinion, I.C.J. Reports 1950 , pp. 6-7; Certain Expenses of the United Nati ons (Article 17, paragraph 2, of the
Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155).”
(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 233, para. 13).
In the Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in
Namibia, the Court has already held that:
“ In the view of the Court, the contingency that th ere may be factual issues underlying the question posed
does not alter its character as a ‘legal question’ as envisaged in Article 96 of the Charter. The reference in this
provision to legal questions cannot be interpreted as opposing legal to fact ual issues. Normally, to enable a
court to pronounce on legal questions, it must also be ac quainted with, take into account and, if necessary, make
findings as to the relevant factual issues.”
(Legal Consequences for States of the Continued Pres ence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 27, para. 40).
Legality of the Treat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 235, para. 14. - 4 -
14. According to the established jurisprudence of the Court, only “compelling reas6ns”
might induce it to decline to respond to a request from the General Assembly . There has been no
refusal, based on the discretionary power of the Court, to act upon a request for advisory opinion in
7
the history of the present Court .
15. The question arises, therefore, whethe r any such “compelling reasons” exist in the
present case. Three grounds might qualify for consideration in this regard:
(a) lack of consent (see paras. 16 to 18 below);
(b) lack of the necessary factual information (see para. 19) and
(c) political impropriety (see paras. 20 to 24).
16. With regard to the first ground, lack of consent, the Court held, in the Advisory Opinion
on Western Sahara, that
“In certain circumstances... the lack of consent of an interested State may
render the giving of an advisory opinion incompatible with the Court’s judicial
character. An instance of this would be when the circumstances disclose that to give a
reply would have the effect of circumventing the principle that a State is not obliged to
allow its disputes to be submitted to judicial settlement without its consent. If such a
solution should arise, the powers of the Court under the discretion given to it by
Article 65, paragraph 1, of the Statute, would afford sufficient legal means to ensure
8
respect for the fundamental principle of consent to jurisdiction.”
17. But the circumstances facing the Court as a result of the request made in
resolution ES-10/14 are not those contemplated in the passage cited above. The request in question
cannot be viewed as a circumvention of the principl e of consent applicable to requests from States.
First, the question of the legal consequences aris ing from the construction of the barrier in the
Palestinian Territory occupied by Israel cannot be reduced to a dispute having an exclusively
bilateral dimension; it has a bearing on the issue of the erga omnes (or erga omnes partes) effects
of the right in question. Moreover, Palestine is not recognized as a State by the international
community, nor indeed by Israel. It follows that it has no locus standi before the Court. Hence
there can be no question of circumvention of the requirement of consent.
18. Furthermore, in the Advisory Opinion on the Western Sahara , the Court stated the
following:
6See Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, Advisory
Opinion, I.C.J. Reports 1956 , p. 86; Certain Expenses of the United Nations (A rticle 17, paragraph 2, of the Charter),
Advisory Opinion, I.C.J. Reports 1962, p. 155; Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971, p. 27; Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1973 , p. 183; Western Sahara, Advisory Op inion, I.C.J. Reports 1975 , p.21;
Applicability of Article VI, Section 22, of the Convenon on the Privileges and Immunities of the United Nations,
Advisory Opinion, I.C.J. Reports 1989, p. 191, and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
I.C.J. Reports 1996 (I), p. 235, para. 14.
7
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 235, para. 14.
8Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 25, para. 33. - 5 -
“The object of the General Assembly has not been to bring before the Court, by
way of a request for advisory opinion, a dis pute or legal controversy, in order that it
may later, on the basis of the Court’s opinion, exercise its powers and functions for the
peaceful settlement of that dispute or controversy. The object of the request is an
entirely different one: to obtain from the Court an opinion which the General
Assembly deems of assistance to it for the proper exercise of its functions . . .” 9
19. A second ground that might lead the Court to decline to act on a request for an advisory
opinion from the General Assembly would be “the actual lack of ‘materials sufficient to enable it to
10
arrive at any judicial conclusion upon the question of fact’” . The response to the question raised
by the General Assembly obviously calls for an in-d epth examination of the facts. The report of
the Secretary-General of 24 November 2003 prepared pursuant to General Assembly
resolutionES-10/13 (A/ES-10/248) is clearly useful in this regard. Otherwise, it is for the Court
itself to determine whether it has sufficient mate rials to enable it to respond favourably to the
request submitted to it by the General Assembly.
20. A third ground on which the Court might decide not to act on the request would be
political impropriety. During the General Assemb ly debate on resolution ES-14/10, Switzerland
itself expressed doubts about the propriety “in the current circumstances” of bringing before the
International Court of Justice “a subject in whic h highly political implications predominate”.
Switzerland considers that there is an urgent n eed to relaunch negotiations. It approves of all
efforts to implement the road map, which it firm ly supports. At the same time, it welcomes the
private initiatives by Israelis and Palestinians — such as the “Geneva In itiative” or the so-called
“Nusseibeh-Ayalon” initiative, which are compleme ntary to the road map and offer a way out of
the present impasse and ways of resolving issu es relating to the final status of Jerusalem,
settlements and refugees. In Switzerland’s opinion, the parties must without fail resume the
negotiations and Switzerland hopes that all available resources will be appropriated to that end. As
stated above, the adoption of resolution ES-10/14 h as altered the situation. Switzerland noted that
in adopting resolution ES-14/10 the majority of Stat es said they were convinced of the usefulness
of an advisory opinion of the Court on the subject.
21. In the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons , the
Court observed that “[t]he General Assembly has th e right to decide for itself on the usefulness of
an opinion in the light of its own needs.” 11
22. It went on to say that:
“The Court is aware that, no matter wh at might be its conclusions in any
opinion it might give, they would have relevance for the continuing debate on the
mater in the General Assembly and woul d present an additional element in the
negotiations on the matter. Beyond that, th e effect of the opinion is a matter of
appreciation.” 12
9Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 26, para. 39.
10
Ibid., p. 28, para. 46.
11
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 238, para. 16.
12Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 238, para. 17. - 6 -
23. In the Advisory Opinion on the Western Sahara , the Court made the following
observation:
“In any event, to what extent or degree its opinion will have an impact on the
action of the General Assembly is not for the Court to decide. The function of the
Court is to give an opinion based on law, once it has come to the conclusion that the
questions put to it are relevant and have a practical and contemporary effect and,
consequently, are not devoid of object or purpose.” 13
24. Switzerland fully endorses these findings. The International Court of Justice will
doubtless see to it that the conditions set forth in its jurisprudence are all satisfied in the case
concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory.
25. Switzerland therefore takes the view that there are no compelling reasons for the Court to
decline to give an opinion. Consequently, Switzerland states its position below on the merits of the
case. However, its observations are confined to the question of the app licability of the Fourth
Geneva Convention of 1949 and human rights treaties.
* *
II. Legal consequences
(a) Generalobservations
26. The law of armed conflict strikes a bala nce between humanitarian demands and military
needs. It seeks to limit the consequences of armed conflict, not only for wounded combatants,
prisoners or the sick but also for civilian populatio ns in the States involved in such conflicts.
Hence every step taken in the context of hostiliti es, of a military, security or administrative
character, must respect the principle of necess ity, proportionality and humanity; it must be
reasonable in terms of intensity, duration and scale. In the context of an occupation, international
humanitarian law ensures consistency between humanitarian aims and the occupier’s security needs
and reduces the risk of a deterioration in relations between the occupying Power and the occupied.
Any examination of necessity and proportionality in circumstances of prolonged occupation when
hostilities have ceased must be more rigorous, sin ce stricter conditions govern the imposition of
restrictions in such circumstances on the fundamental rights of protected persons.
27. Israel has legitimate security concerns and considerable latitude in selecting and
implementing the means required. Nevertheless, its actions on the grounds of self-defence or
national security must respect international humani tarian and human rights law. Respect for such
norms is essential in order to improve the human itarian situation of persons living under prolonged
occupation and to bring about a just and lasting peace.
13
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 37, para. 73. - 7 -
(b) Applicability of the Fourth Geneva Convention of 1949
28. Israel asserts “that humanitarian law is th e protection granted in a conflict situation such
as the one in the West Bank and Gaza Strip” 14; it also acknowledges the customary nature of the
rules contained, notably, in the Hague Convention and its 1907 Regulations relating to occupied
15
territories . But the applicability de jure of the Fourth Geneva Convention of 1949 relative to the
Protection of Civilian Persons in Time of War 16 is contested by Israel. Having ratified the
Convention on 6 July 1951, Israel decided to apply de facto the “humanitarian parts” of the
Convention . The Israeli High Court of Justice thus applies international humanitarian law “as
reflected in the Fourth Geneva Convention” . 18
29. Article 2 of the Fourth Geneva Conven tion of 1949 stipulates that its provisions are
applicable to armed conflict and also in all cases of occupation. Furthermore, there is a very broad
international consensus on the applicability of the Fourth Geneva Convention of 1949 to the
Occupied Palestinian Territory. The United Na tions Secretary-General, in his report of
26June1997 to the General Assembly and the Security Council pursuant to General Assembly
resolution ES-10/2, reached the following conclusion:
“The Government of the State of Israel has not, as of 20 June 1997, accepted the
de jure applicability of the Fourth Geneva Convention of 1949 to all territories
occupied since 1967. All other High Contracting Parties, as well as the International
Committee of the Red Cross, have retained their consensus that the Convention does
19
apply de jure to the occupied territories.”
14See Annex I to the report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13,
A/ES-10/248, 24 November 2003, p. 8.
15See judgment in the Ajuri v. IDF Commander in West Bank case of 3 September 2002 before the High Court of
Justice in Israel (HCJ 7015/02).
16United Nations Treaty Series, Vol. 75, pp. 287-417.
17
See also Shamgar, “The Observance of International Law in the Administered Territories”,Israel Yearbook of
Human Rights, 1971, p. 262.
18
See judgment in the Ajuri v. IDF Commander in West Bank case of 3 September 2002 before the High Court of
Justice in Israel (HCJ 7015/02).
19
Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/2 of 26 June 1997,
para. 21, A/ES-10/6, S/1997/494. - 8 -
20 21
30. The United Nations General Assembly and the Security Council confirm the de jure
applicability of the Convention to occupied terr itories and have stated on a number of occasions
that it should be applied to the territories occupied by Israel in June 1967, including Jerusalem.
They thus confirm Israel’s responsibilities in this regard.
31. It should also be noted that, pursuant to the General Assembly’s recommendation in
resolution ES-10/6 of 9 February 1999, a Conference of High Contracting Parties to the Fourth
Geneva Convention was held for the first time on 15 July 1999. The Conference discussed action
to be taken to apply the Convention in the O ccupied Palestinian Territory, including East
Jerusalem, and to ensure respect for its provisions in accordance with common Article 1 of the four
Geneva Conventions. On 5 December 2001 a Conference of High Contracting Parties to the Fourth
Geneva Convention was held in Geneva and concluded that it was necessary to ensure the
application of the Convention in the Occupied Pa lestinian Territory, including East Jerusalem, and
to provide for follow-up to the Conference Declaration . 22
32. Switzerland therefore takes the view th at the Fourth Geneva Convention of 1949 is
23
applicable to the Occupied Palestinian Territory .
20
See, for example, the following General Assembly resolutions: A/RES/36/15 of 3 November 1981,
A/RES/36/226 of 17 December 1981, A/RES/36/120 of 10 December 1981, A/RES/36/173 of 17 December 1981,
A/RES/36/150 of 16 December 1981, A/RES/36/147 of 16 December 1981, A/RES/37/123 of 16 December 1982,
A/RES/37/88 of 10 December 1982, A/RES/37/120 of 16 December 1982, A/RES/37/122 of 16 December 1982,
A/RES/37/135 of 17 December 1982, A/RES/39/101 of 14 December 1984, A/RES/39/99 of 14 December 1984,
A/RES/39/146 of 14 December 1984, A/RES/40/161 of 16 December 1985, A/RES/41/162 of 5 December 1986,
A/RES/41/69 of 3 December 1986, A/RES/41/63 of 3 December 1986, A/RES/43/21 of 3 November 1988, A/RES/43/54
of 6 December 1988, A/RES/43/58 of 6 December 1988, A/RES/43/57 of 6 December 1988, A/RES/44/2 of
6October1989, A/RES/44/40 of 4 December 1989, A/RES/44/47 of 8 Decemb er 1989, A/RES/44/48 of
8December1989, A/RES/45/83 of 13 December 1990, A/RES/46/46 of 9 December 1991, A/RES/46/1991 of
20December1991, A/RES/46/76 of 11 December 1991, A/RES/46/82 of 16 December 1991, A/RES/47/69 of
14December1992, A/RES/47/70 of 14 December 1992, A/RES/47/172 of 22 December 1992, A/RES/47/170 of
22December1992, A/RES/47/64 of 11 December 1992, A/RES/47/63 of 11 December 1992, A/RES/48/59 of
14December1993, A/RES/48/40 of 10 December 1993, A/RES/48/41 of 10 December 1993, A/RES/48/212 of
21December1993, A/RES/49/36 of 9 December 1994, A/RES/49/35 of 9 December 1994, A/RES/50/22 of
4December1995, A/RES/50/29 of 6 December 1995, A/RES/50/129 of 20 December 1995, A/RES/50/22 of
4December1995, A/RES/51/128 of 13December 1996, A/RES/51/131 of 13 December 1996, A/RES/51/132 of
13December 1996, A/RES/51/133 of 13December 1996, A/RES/51/190 of 16 December 1996, A/RES/51/223 of
13March1997, A/RES/ES-10/2 of 25 Apr il 1997, A/RES/ES-10/3 of 15 July 1997, A/RES/52/65 of 20February 1998,
A/RES/52/66 of 20 February 1998, A/RES/53/54 of 10 February 1999, A/RES/54/77 of 22 February 2000, A/RES/54/78
of 22 February 2000, A/RES/54/79 of 22 February 2000, A/RES/54/80 of 22 February 2000, A/RES/55/131 of
28February 2001, A/RES/56/56 of 14February 2002, A/RES/56/62 of 14 February 2002, A/RES/56/59 of
14February2002, A/RES/56/60 of 14 February 2002, A/RES/56/61 of 14 February 2002, A/RES/56/204 of
21February2002, A/RES/ES-10/10 of 14 May 2002, A/RE S/ES-10/11 of 10 Septembe r 2002, A/RES/57/188 of
6February 2003, A/RES/57/121 of 24 February 2003, A/RES/57/124 of 24 February 2003, A/RES/57/125 of
24February2003, A/Res/57/126 of 24 February 2003, A/RES/57/127 of 24 Februa ry 2003, A/RES/57/269 of
5March2003, A/RES/58/97 of 17 De cember 2003, A/RES/58/98 of 17 December 2003, A/RES/58/99 of
17 December 2003.
21See, for example, the following Security Council resolutions: S/RES/452 of 20 July 1979, S/RES/465 of
1March 1980, S/RES/468 of 8 May 1980, S/RES/469 of 20 May 1980, S/RES/ 471 of 5 June 1980, S/RES/476 of
30June1980, S/RES/478 of 20 August 1980, S/RES/484 of 19 December 1980, S/RES/497 of 17 December 1981,
S/RES/592 of 8 December 1986, S/RES/605 of 22 Decem ber 1987, S/RES/607 of 5 January 1988, S/RES/636 of
6July1989, S/RES/641 of 30 August 1989, S/RES/672 of 12 October 1990, S/RES/681 of 20 December 1990,
S/RES/694 of 24 May 1991, S/RES/726 of 6 January 1992, S/RES/799 of 18 December 1992 and S/RES/904 of
18 March 1994.
22
See www.eda.admin.ch/4ge.
23
Israel also ratified, on 3 October 1957, the 1954 Convention for the Protection of Cultural Property in the Event
of Armed Conflict; this Convention is applicable in cases of total or partial occupation of a territory (see Article 5, United
Nations Treaty Series, Vol. 249, pp. 240-357). - 9 -
(c) Applicability of human rights instruments
33. Switzerland considers that in a situation of armed conflict, the special, complementary
and parallel character of protective norms, especial ly the norms of international humanitarian and
human rights law, are particularly important. Moreover, a number of international courts and
tribunals have implicitly or e xplicitly affirmed the applicability of human rights in occupied
24
territories . The International Court of Justice, in its Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons 25 observes in abstract terms that the protection of the
International Covenant on Civil and Political Ri ghts does not cease in times of war, except by
operation of Article 4 of the Covenant, whereby certain provisions may be derogated from in a time
of national emergency. In particular, respect for the right to life is not a norm that can be derogated
from. The right not arbitrarily to be deprived of one’s life thus applies also in hostilities. The test
of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex
specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of
hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is
to be considered an arbitrary deprivation of life c ontrary to Article 6 of the Covenant, can only be
decided, according to the Court, by reference to the law applicable in armed conflict and not
deduced from the terms of the Covenant itself. Better protection for individuals in an armed
conflict calls for the application of internationa l humanitarian law and its complementarity with
other legal régimes, particularly that of human rights.
34. The construction of the barrier in th e Occupied Palestinian Territory has legal
consequences not only in respect of internati onal humanitarian law but also in respect of
international human rights law. Israel ratified th e International Covenant on Economic, Social and
Cultural Rights of 16 December 1966 on 3 October 1991 27. The Covenant is applicable to all
territories and populations over which a State party ex ercises control. The treaty has no provision
for derogation in the event of domestic tension or armed conflict. The Committee on Economic,
Social and Cultural Rights, which has responsib ility for reviewing reports submitted by States
parties und28 Articles 16 and 17 of the Covenant, considers that it is applicable to occupied
territories .
35. Israel also ratified the Internationa l Covenant on Civil and Political Rights of
16December 1966 on 3 October 1991 29. In its report of 4 December 2002 to the Human Rights
Committee, which has responsibility for review ing reports submitted by States parties under
Article40 of the Covenant, Israel argued that the Covenant was not applicable to areas that were
not subject to its territorial sovereignty and juri sdiction, and that the Committee’s mandate did not
extend to events in the West Bank and the Gaza St rip because “they are part and parcel of the
context of armed conflict as distinct from a relationship of human rights” 30. The Committee,
however, adheres to its previous opinion that th e applicability of the régime of international
humanitarian law at a time of armed conflict does not as such preclude the application of the
Covenant, including Article 4, which reserves th e possibility of derogation for cases in which a
24See Adam Robert, “Prolonged military occupation” in American Journal of International Law , Vol. 84, 1990,
p. 44; see Walter Kälin (ed.), Human Rights in Times of Occupation: The case of Kuwait, Berne, 1994.
25I.C.J. Reports 1996 (I), para. 25.
26Israel also ratified, on 3 October 1957, the 1954 Convention for the Protection of Cultural Property in the Event
of Armed Conflict; this Convention is applicable in cases of total or partial occupation of a territory (see Article 5, United
Nations Treaty Series, Vol. 249, pp. 240-357).
27See United Nations Treaty Series, Vol. 993, p. 3.
28
See E/C.12/1/Add.27 of 4 December 1998, para. 8.
29See United Nations Treaty Series, Vol. 999, p. 171.
30See CCPR/C/ISR/2001/2 of 4 December 2002. - 10 -
public emergency threatens the life of the nation 31. Nor does the applicability of the régime of
international humanitarian law preclude account ability of States parties under Article 2,
paragraph1, of the Covenant for the actions of their authorities outside their own territory,
including in occupied territories. For even t hough extraterritorial responsibility does not follow
clearly from the wording of Article 2, paragraph 1, of the Covenant, the interpretation of the latter,
in the light of its object and legislative hist ory, as well as the Committee’s established practice 32,
33
justify the assertion that such is the case. In the case of Kuwait, the General Assembly ,
unanimously except for Kuwait itself, and the Commission on Human Rights 34 explicitly endorsed
35
the Committee’s practice .
36. In the context of the Occupied Palestin ian Territory, the Committee notes the duration of
Israel’s presence in the territories, Israel’s ambiguous attitude to their future status, and the de facto
36
jurisdiction exercised there by the Israeli security forces . The Committee therefore considers that,
in the current circumstances, the provisions of th e Covenant apply to the benefit of the population
of the occupied territories, for all conduct by th e State party’s authorities or agents in those
territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of
37
State responsibility of Israel under the principles of public international law .
31
See HRI/GEN/1/Rev.5/Add.1 of 18 April 2002.
32
See CCPR/C/79/Add.93 of 18 August 1998; CCPR/CO/78/ISR of 21 August 2003; Lopéz Burgos v. Uruguay
and Lilian Celiberti v. Uruguay, both of 29 July 1981, UN Doc. A/36/40, A nnexes XIX and XX; Report on the situation
of human rights in Kuwait under Iraqi occupation, prepared by Mr. Walter Kälin, Special Rapporteur, E/CN.4/1992/26 of
16 January 1992, para. 57; CCPR/C/79/Add.93 of 18 August 1998; CCPR/CO/78/ISR of 21 August 2003.
3A/RES/46/135.
34
Resolutions 1991/67 and 1992/60.
35
See Walter Kälin (ed.), op. cit., pp. 84-86.
36
See CCPR/C/79/Add. 93 of 18 August 1998, para. 10. See also the Report on the situation of human rights in
Kuwait under Iraqi occupation, prepared by Mr. Walter Kälin, Special Rapporteur, E/CN.4/1992/26 of 16 January 1992.
37
See CCPR/CO/78/ISR of 21 August 2003, para. 11.
3See CCPR/C/79/Add. 93 of 18 August 1998, para. 10. See also the Report on the situation of human rights in
Kuwait under Iraqi occupation, prepared by Mr. Walter Kälin, Special Rapporteur, E/CN.4/1992/26 of 16 January 1992. - 11 -
37. Switzerland shares the view of the Human Rights Committee and the Committee on
Economic, Social and Cultural Rights that the tw o Covenants are applicable to the Occupied
Palestinian Territory . 39
III. Conclusions
38. Switzerland requests the Court to rule, in its Advisory Opinion, on the question of the
applicability of the Fourth Geneva Convention and of human rights treaties in the particular context
of the construction of the barrier in the Occ upied Palestinian Territory and to confirm the
applicability of the said Convention and of those treaties.
___________
39
Israel ratified the International Convention on the E limination of All Forms of Racial Discrimination of
3 January 1979 on 7 March 1996 (see United Nations Treaty Series, Vol. 660, p. 14). In accordance with the principle of
effective control, the Convention is applicable to occupied te rritories. The applicability of a human rights treaty to the
whole of the territory subject to the jurisdiction of a State party was also confirmed by the Committee responsible for
reviewing reports submitted by States parties to the Conve ntion on the Elimination of All Forms of Discrimination
against Women on 18 December 1979 (see A/52 /38/Rev.1, Part II, of 12 August 1997, para. 170). Israel ratified that
Convention on 3 October 1991 (see United Nations Treaty Series , Vol. 1249, p. 13). Israel ratified the Convention
against Torture and Other Cruel, Inhuman or Degr ading Treatment or Punishment on 10 December 1984 (see United
Nations Treaty Series, Vol. 1465). The applicability of this Convention for persons to occupied territories seems to have
been acknowledged (see the third periodi c report of Israel of 4 July 2001, CAT/C/54/Add.1, and the concluding
observations of the Committee against Torture of 8-22 May 1998 , A/53/44, paras. 232-242). As torture and other cruel,
inhuman or degrading treatment or punishment are prohibited by international humanitarian law, Article 2, paragraph 2,
of the Convention, confirming that prohibit ion, is applicable not only in time of war but also where there is a threat of
war, internal political instability or any other state of emergency. Israel ratified the Convention on the Rights of the Child
of 20 November 1989 on 3 October 1991 (see United Nations Treaty Series , Vol. 1577, p. 3). The Committee on the
Rights of the Child, which is responsible for reviewing the reports submitted by States parties, has reaffirmed the
applicability of the Convention to occupied territories (see the concluding observations of the Committee on the Rights of
the Child of 9 October 2002, CRC/C/15/Add.195). See also Jakob Kellenberger, President of the International
Committee of the Red Cross, Protection through Complementarity of Law , 27th Annual Round Table, “International
Humanitarian Law and Other Le gal Regimes: Interplay in Situations of Violence”, San Remo, Italy, 4-6 August 2003,
www.icrc.org.
Written Statement of the Swiss Confederation [translation]